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DATE: November 10, 2014
TO: Bob Shillinger,
County Attorney
ATTN: Kathy Peters
FROM: Lindsey Ballard, D.C..
At the October 17, 2014, Board of County Commissioner's meeting the Board granted approval
and authorized execution of Item Q7 First Amendment to Lease Agreement with Telecom Systems, Inc.
The amendment will allow the company to construct, at their own expense, a new communications
tower situated on county owned land at Long Key; and to demolish Telecom's two old communications
towers at the site.
Enclosed is a duplicate original of the above-mentioned for your handling. Should you have any
questions,please feel free to contact my office.
cc: County Attorney (electronic copy)
Finance (electronic copy)
File
Air500 Whitehead Street Suite 101,PO Box 1980,Key West,FL 33040 Phone:305-295-3130 Fax:305-295-3663
G SCANNED 3117 Overseas Highway,Marathon,FL 33050 Phone:305-289-6027 Fax:305-289-6025
\� 88820 Overseas Highway,Plantation Key,FL 33070 Phone:852-7145 Fax:305-852-7146
WIC" IL-1- l
FIRST AMENDMENT TO THE LEASE AGREEMENT
BETWEEN MONROE COUNTY AND TELCOM SYSTEMS INC.
THIS FIRST AMENDMENT,t the LEASE AGREEMENT("Agreement")dated April 20,2011,
is entered into this JY- day of r/4 2014 by and between TELCOM SYSTEMS, LTD. ("LESSEE
or TELCOM"), a Florida Limited Partnership, having an address at 450 NE Pt Road,Homestead,Florida
33030, and Monroe County ("COUNTY or LESSOR"), a political subdivision of the State of Florida,
whose address is 1100 Simonton Street,Gato Building,Key West,Florida 33040.
WHEREAS, COUNTY is the owner of certain property located at Lot 1, Section 5, T. 65 S., R.
35 E., on Long Key,Monroe County,Florida,and
WHEREAS,TELCOM owns and operates two communication towers and certain improvements
related to the towers,and
WHEREAS, the COUNTY and TELCOM entered into a LEASE AGREEMENT ("LEASE")
commencing April 20,2011,and;
WHEREAS,the parties agree that a new tower is necessary at the Long Key location and further
agree that TELCOM desires to demolish and remove the present communications towers and to build a
new communications tower on that site, and
WHEREAS, it is in the public interest that the COUNTY facilitate the improvement of
communication towers and facilities throughout the Keys.
NOW'THEREFORE, in consideration of the mutual covenants and provisions contained herein,
the parties agree to amend its earlier Agreement as follows:
1. TELCOM and COUNTY agree that TELCOM shall remove and demolish the present
towers located on the COUNTY premises more defmitely described below and shall replace the existing
towers, which are in bad repair, with a new communications tower within 180 days of the execution of
this First Amendment. TELCOM shall bear all the costs of demolition, disposal of the old towers, any
parts or appurtenances, and associated buildings. TELCOM shall bear all the costs of construction,
installation, clean-up of construction debris, and the costs of maintaining egress and ingress to the site
during construction.
2. The completion of construction of a new tower is pursuant to Paragraph 16 of the
Agreement which invokes an extension of the Agreement for an additional term. TELCOM shall obtain
all relevant permits, approvals, certificates of occupancy or other requirements from any governmental
entity related to, the demolition of existing towers, the construction of a new tower and clean-up of the
site during and after the construction. TELCOM shall prepare at its expense all necessary drawings and
specifications for the construction of a tower and telecommunications equipment, which COUNTY shall
have the right to approve, such approval shall not be unreasonably withheld or delayed.
3. Nothing in this Amendment shall change the responsibility of TELCOM for Maintenance
and Repairs under paragraph 6 of the AGREEMENT; however, if TELCOM wishes to maintain, make
repairs or alterations to the towers prior to the demolition, removal and rebuild of the towers the County
authorizes the maintenance and make repairs, so long as they are all accomplished as required according
to applicable Federal State and County Ordinance,and"MCSO"requirements).
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4. Copies of all proposals for maintenance, repair, demolition, including but not limited to
proposed design/construction specifications of a new tower shall be submitted to the Monroe County
Sheriff's Office Department and COUNTY prior to the work being started and prior to submission to any
State, Federal or County entity for approval. In addition, prior to work on the present towers or
construction of a new tower the Monroe County Sheriff's office shall approve, in writing, the engineered
designs for any repairs, maintenance, and demolition of the present towers and for construction of a new
tower. Such approval shall not be unreasonably withheld or delayed.
5 The construction of a new communications tower shall be completed within 365 days of
the date of this amendment; however, this time frame may be enlarged by agreement of the parties in an
amendment signed with same formality as the original Agreement.
6. All permitting or other requirements, including any and all FCC or FAA permissions,
registrations and requirements, or necessary documents of any nature whatsoever related to the design,
demolition of the present towers, construction and final completion of the tower shall be the full
responsibility of TELCOM, including any fees of any kind.TELCOM shall comply with all requirements
for painting, maintaining and illumination of the tower as prescribed by the Federal Communications
Commission ("FCC"). TELCOM shall at its sole expense pay any development costs for the new tower
and for the existing towers including installation of the equipment, improvements, fixtures, dishes, lights,
switches,batteries, grids antenna(s), lines, accessories, structures appurtenances, or services necessary for
the demolition and decommission of the presently existing towers and for the design and construction of
the new tower. TELCOM shall also be solely responsible for any elements related to the tower including
but not limited to the ground ring, concrete pad/foundation, fencing/enclosure, tower, site preparation,
engineering, surveying, environmental and other fees and costs for professional and other services
required for the construction of the tower. It is understood that this responsibility is part of the
consideration for the COUNTY allowing TELCOM to build a new tower and rent space on the tower to
third parties.However,TELCOM shall not demolish the present towers until the new tower is constructed
and in operation.
7. TELCOM agrees that during the term of the Agreement, it will hold space on the tower
for use by the County for Monroe County Sheriff's Office (MCSO) communication equipment; and
acknowledges that the ability to locate equipment on the tower is part of the consideration for the County
allowing TELCOM to construct a tower. MCSO shall work with TELCOM to determine the appropriate
location for MCSO's facilities to be mounted on the tower. TELCOM acknowledges that this space must
be free of interference to the MCSO equipment and transmissions. MCSO shall give TELCOM a
minimum of thirty(30) days' notice prior to adding equipment to the tower, except in cases of emergency
at which time the parties shall work together to provide space immediately but no longer than seven (7)
days after notice is given of the need for space to TELCOM by the County or MCSO.TELCOM agrees to
allow installation by MCSO of equipment of a type and frequency which will be acceptable to MC SO.
8. TELCOM shall procure and maintain additional insurance, over and above that required
in paragraph 10 of the Agreement, due to the construction of the Tower and for the remainder of the term
of the agreement.
8.1 TELCOM shall obtain and maintain insurance, as specified in the Agreement and this
First Amendment, in effect at all times during the term of the Agreement and its Amendments. In the
event the completion of the project (to include the work of others) is delayed or suspended as a result of
TELCOM'S failure to purchase or maintain the required insurance, the CONSULTANT shall indemnify
the COUNTY from any and all increased expenses resulting from such delay.
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8.2 The coverage provided herein shall be provided by an insurer with an A.M.Best rating of
VI or better,that is licensed to do business in the State of Florida and that has an agent for service
of process within the State of Florida. The coverage shall contain an endorsement providing sixty
(60) days' notice to the COUNTY prior to any cancellation of said coverage. Said coverage shall
be written by an insurer acceptable to the COUNTY and shall be in a form acceptable to the
COUNTY.
8.3 TELCOM shall obtain and maintain the following policies:
A. Workers' Compensation insurance as required by the State of Florida, sufficient to respond to
Florida Statute 440. Employers Liability Insurance with limits of $100,000 per Accident,
$500,000 Disease policy limits, $100,000 Disease each employee.
B. Comprehensive business automobile and vehicle liability insurance covering claims for
injuries to members of the public and/or damages to property of others arising from use of
motor vehicles, including onsite and offsite operations, and owned, hired or non-owned
vehicles, with $200,000 per person, $300,000 per Occurrence, $200,000 Property Damage or
$300,000 combined single limit.
C. Commercial general liability, including Personal Injury Liability, covering claims for injuries
to members of the public or damage to property of others arising out of any covered act or
omission of TELCOM or any of its employees, agents or subcontractors or subconsultants,
including Premises and/or Operations, Products and Completed Operations, Independent
Contractors; Broad Form Property Damage and a Blanket Contractual Liability Endorsement
with$1Million dollar Combined Single Limit.
An Occurrence Form policy is preferred. If coverage is changed to or provided on a Claims
Made policy, its provisions should include coverage for claims filed on or after the effective
date of this contract. In addition, the period for which claims may be reported must extend
for a minimum of 48 months following the termination or expiration of this contract.
D. COUNTY shall be named as an additional insured with respect to TELCOM'S insurance
coverages identified in Paragraph C.
E. TELCOM shall require its agents, design professionals and subcontractors to be adequately
insured at least to the limits prescribed above, and to any increased limits of CONSULTANT
if so required by the COUNTY during the term of this Agreement.
F. TELCOM shall provide to the COUNTY certificates of insurance or a copy of all insurance
policies including those naming the COUNTY as an additional insured. The COUNTY
reserves the right to require a certified copy of such policies upon request.
G. If TELCOM participates in a self-insurance fund, a Certificate of Insurance will be required.
In addition, TELCOM may be required to submit updated financial statements from the fund
upon request from the COUNTY.
9. Notwithstanding the provisions of Sec. 768.28, Florida Statutes, the participation of
TELCOM and the COUNTY in this Agreement and the acquisition of any commercial liability insurance
coverage, self-insurance coverage, or local government liability insurance pool coverage shall not be
deemed a waiver of immunity to the extent of liability coverage,nor shall any contract entered into by the
COUNTY be required to contain any provision for waiver.
10. If the tower to be constructed by TELCOM should be totally or substantially destroyed or
damaged (so that TELCOM may not operate the facility as contemplated under the Agreement and
amendment) TELCOM may rebuild the Tower at its sole and complete expense. If TELCOM elects to
rebuild the Tower as provided for in this paragraph, then in that case the Agreement shall be renegotiated
as to term of the Agreement. In any event, due to such damage or destruction TELCOM's use of the
premises is completely disrupted, any fees due to the COUNTY shall abate until the use is restored in full
or in part, or for a period of no longer than 90 days (from the date of complete disruption) or whichever
occurs first.TELCOM shall immediately notice the destruction date and the restoration date to the County
and MCSO.
11. If TELCOM fails to comply with the requirements of the Agreement and of this
Amendment, that failure shall constitute a breach of the Amendment and, in the sole discretion of the
COUNTY and MCSO, be reason to terminate the LEASE pursuant to paragraph 15 of the LEASE. Upon
termination TELCOM shall surrender possession of the tower pursuant to paragraph 21 of the LEASE,
and without compensation from the COUNTY to TELCOM.
12. In accordance with Florida Statues 713.10,neither TELCOM or anyone claiming through
TELCOM shall have the right to file construction liens or any other kind of lien on the Site or Premises
and the filing of this notice under the Agreement constitutes notice that such liens are invalid against the
COUNTY. Further, TELCOM agrees to give actual notice to any contractors, subcontractors or suppliers
of good, labor, services that such liens will NOT be valid and to provide County with copies of such
Notice and to record the Notice in the Public Records of Monroe County. TELCOM will immediately
notify MCSO and Office of County Attorney if a lien is filed regarding the site and send a copy of such
lien to both MCSO and Office of County Attorney.
13. Paragraph 12 of the original Agreement shall be amended to read:
"Expiration of Term. At the expiration of the term of the Agreement and amendments thereto,
TELCOM shall peaceably yield up to COUNTY the demised premises, including the tower,
fixtures and improvements, as contemplated under the Agreement and Amendments, in good
and tenantable repair. It is understood and agreed that TELCOM shall have the right to
remove from the premises all personal property of TELCOM which is not permanently
attached to the land, including,machinery, equipment, appurtenances, and appliances
placed on the premises by TELCOM. TELCOM shall be solely responsible for any
hazardous materials on the premises at the end of the term."
14. County requires and TELCOM agrees to enter into a payment and performance bond
with the entity TELCOM hires to construct the new tower in an amount equal to the contract
amount pursuant to Sec. 255.05, Florida Statutes.
15. This Amendment shall be governed by and construed in accordance with the laws of the
State of Florida applicable to contracts made and to be performed entirely in the State. In the event that
any cause of action or administrative proceeding is instituted for the enforcement or interpretation of this
Agreement, COUNTY and CONSULTANT agree that venue shall lie in the 16th Judicial Circuit, Monroe
County, Florida, in the appropriate court or before the appropriate administrative body. This agreement
shall not be subject to arbitration. Mediation proceedings initiated and conducted pursuant to this
Agreement shall be in accordance with the Florida Rules of Civil Procedure and usual and customary
procedures required by the circuit court of Monroe County.
16. TELCOM shall insure that all contracts, contractors, and subcontractors comply with
local, state and Federal laws; and that there will be no discrimination against any person, and it is
expressly understood that upon a determination by a court of competent jurisdiction that discrimination
has occurred,this Agreement automatically terminates without any further action on the part of any party,
effective the date of the court order. In addition, TELCOM agrees to comply with all Federal and Florida
statutes, and all local ordinances, as applicable, relating to the demolition, removal of demolition debris,
construction and operation of communications towers.
17. Paragraph 13 of the Agreement shall be amended to read as follows:
"Assignment. TELCOM shall not assign the demised premises without prior written consent of
COUNTY, in the form of an Amendment to the AGREEMENT accomplished with the same formality of
this AMENDMENT;provided,however,that TELCOM may assign the lease to an affiliate of the
LESSEE without such consent upon giving written notice to COUNTY a minimum of thirty(30)days
prior to the assignment and by providing legal proof detailing the full contact information of the affiliate
to the LESSOR.
18. In all other respects,the original Agreement with TELCOM for Long Key
Communications tower remains unchanged.
--IN WITNESS WHEREOF,each party caused this First Amendment to be executed by its duly authorized
.,` representative on the day and year first above written.
(_/
-, 1,-"= !(SEAIL) BOARD OF COUNTY COMMISSIONERS
t����7/Attest iAIVIIY HEAVILIN C.P.A, Clerk OF MONRO,' O FLORIDA
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° s::N,, :-- Deputy Clerk ayor/Chairman
Witness to TELCOM's Signature TELCOM SYSTEMS,LTD.
By:, Mag_d( By: `=Yam ✓-,ei ,/j .� 4 / dli2
WITNESS Signature U Signature of Corporate Agent with
authority to bind the corporation
April O'Mara .Tamps F. Spisink
Print Witness Name Print Name of Corporate Agent
Date: 10/01/14 Date: 10/01/14
MONROE COUNTY ATTORNEY
PROVED AS TO F AM:
NATILEENE W. CASSEL
ASSISTANT COUNTY ATTORNEY
Date /`p - /' V