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Item C32BOARD OF COUNTY COMMISSIONERS AGENDA ITEM SUMMARY Meeting Date: 3/17/04 Division:_ Public Safety Bulk Item: Yes X No Department: Emergency Communications AUE UA ITEM WORDING: Approval of a Lease Agreement with Call Communication Group, Inc. (WMKL) and Genesis Broadcasting (WGES) to place a "Community Antenna" for FM radio broadcast on the County owned communications tower located at North Key Largo. ITEM BACKGROUND: Call Communication Group, Inc. and Genesis Broadcasting have agreed collectively to pay the County rent of $32,400.00 annually with a 4% annual increase for use of antenna space on the North Key Largo communications tower. The monthly rent has been temporarily abated for a period of 30 months. Payment of the 30 month arrearage amount will commence in the third year with monthly payments until paid. Also, they will pay directly to Sprint Spectrum, L.P. a one time collocation fee, as required. FRr:VIMS RELEVANT BOCC ACTION: On September 17, 2003, the Board granted conceptual approval to provide a 30 month abatement of monthly charges for tower use for a non-profit radio station — WMKL (Call Communications, Inc.) and WGES (Genesis Broadcasting) CUNTRACT/AGREEMENT CHANGES: This is a new agreement. STAFF RECOMMENDATIONS: Approval TOTAL COST: N/A COST TO COUNTY: N/A BUDGETED: Yes No N/A SOURCE OF FUNDS: N/A REVENUE PRODUCING: Yes X No AMOUNT PER YEAR: $32,400 with 4% Increase Annually APPROVED BY: County Atty YES OMB/Purchasing )YES Risk Management YES DEPARTMENT DIRECTOR APPROVAL: orm Leautt DIVISION DIRECTOR APPROVAL: DOCUMENTATION: Included James R. "Reggie" Paros To Follow X Not Required DISPOSITION: AGENDA ITEM # CA2 IMONROE UNt'Y BOARD OR COUNTY COMMISSIONERS mbeact with: Cali Cacagtauoicatitioas Iris Conuum 0 and Genesis Ar dcastiA94. Es'1eaWeData: 3/17/04 ExPbution Dom 3/17/09 �nQsot Rt[poseJDescri XAMW AVWXH ut with ! CanmunicWom4 Inc. and Ga>elb Sroadeuft for a " 'bu meshy Aaoeump FM radio braodcmdugan the COMW owned North Key _g'- Wzm� 6035 aene) (Ext) - Dollar Value of ca*mct: S 162,000.00 COMMS Yea Portion: S a/a Wed? YesQ No Accoamt Codes: :S I mAtch: S AMMONAL Wad Oup ft Costs: Jy For. C, ee eeded Date Out tioR Dkoctor 3 d f Yes ] Maasgmna t 31a 4 Yeso EAPLw� Yat;Q Noe-�� RY Attosney 'YesQ Nam ..'W ��C j% c.oi:K:7Y! T-d TL09 682 906 1NOd21Id NOH1d21UW Wd9tr : a i+002 02 .add North Key Largo Tower LEASE AGREEMENT This Agreement is made and entered into by MONROE COUNTY, a political subdivision of the State of Florida, whose address is 1100 Simonton Street, Key West, FL 33040, (COUNTY), Call Communications Group, Inc., (WMKL), whose address is 10700 Caribbean Blvd., Suite 202D, Miami, FI. 33189 and Genesis Broadcasting (WGES), whose address is 6883 S. W. 194 Avenue, Pembroke Pines, Fl. 33332, the latter two being collectively hereinafter called the CO -LESSEES. WHEREAS, the COUNTY owns a communications tower at the following location: North Key Largo - coordinates 250 14' 7.0"N and 800 19' 35.0"W, hereinafter referred to as "the tower;" and WHEREAS, CO -LESSEES desire to install a new "Community Antenna", a Shively 6810-4, to be shared with WMKL and WGES. This new "Community Antenna" is to be mounted between 95.1 meters (AGL) and 82.3 meters (AGL). This new Antenna must not cause any interference with pre-existing antennae's mounted on the tower. The new "Community Antenna" will be fed with no larger than a single 4 inch diameter coaxial transmission line; and WHEREAS, the CO -LESSEES have entered into an agreement and submitted a proposal to MONROE COUNTY, Attached as EXHIBIT "B", between them to accomplish their purposes; and WHEREAS, the County has an agreement with Sprint Spectrum, L.P., which erected the North Key Largo tower, that County's new licensees, new lessees and new commercial tower users will each be required to pay a co -location fee and execute an Interference Agreement; now therefore, in consideration of the promises and conditions contained herein, the parties agree as follows: 1. PROPERTY. The COUNTY leases to CO -LESSEES the tower spaces and a portion of the ground space at the North Key Largo tower site for the CO -LESSEES to construct an equipment shelter which is more particularly described in Exhibit "A", attached hereto and incorporated herein by reference. 2. TERM. The term of this Agreement is five years running from , 2004, through , 2009. 3. USE AND CONDITIONS. The towers, collectively, shall be used solely for the purposes of placement and maintenance of transmission equipment for public radio, and, additionally, the leased space on the North Key Largo tower may be used for transmission equipment shared by the CO -LESSEES. If the premises are used for any other purpose, without the County Administrator's prior written consent, the COUNTY shall have the option of immediately terminating this Agreement. The CO -LESSEES shall not permit any use of the premises, as described in Exhibit "A", in any manner that would obstruct or interfere with any COUNTY functions and duties. Further, the CO -LESSEES shall not sublease any space or antenna use to any other entity. The CO -LESSEES will further use and occupy said premises in a careful and proper manner, and not commit any waste thereon. The CO -LESSEES will not cause, or allow to be caused, any nuisance or objectionable activity of any nature on the premises. The CO - LESSEES will not use or occupy said premises for any unlawful purpose and will, at their sole cost and expense, conform to and obey any present or future ordinance and/or rules, regulations, requirements and orders of governmental authorities or agencies respecting the use and occupation of said premises. Each of the CO -LESSEES shall execute an Interference Agreement, a copy of which is attached hereto as Exhibit B. North Key Largo Tower The equipment shelter constructed by CO -LESSEES on the ground space as described in paragraph 1 and Exhibit "A" shall provide space and electric only for WMKL & WGES, and no other entities shall use said shelter for equipment or otherwise, without prior written consent of the COUNTY. This AGREEMENT and obligations of CO -LESSEES hereunder are contingent upon them receiving all permits, approvals and certificates necessary for removal and replacement of the antenna and construction of ground equipment shelter as proposed in the attached exhibits. The CO -LESSEES shall use the Premises for the purpose of constructing, maintaining and operating a communications facility and uses incidental to the communications facility, consisting of the placement of wireless communications equipment, removal and remounting of antennas, and maintenance of coaxial cables (between the wireless equipment and the antennas), electrical utility service and fiber optic or telephone cables. Prior to construction or installation of any equipment, whether in the Ground Space or on the Tower, the CO -LESSEES shall obtain written approval, signed by the County's Director of Communications, of the specific construction or installation placement within the Premises. COUNTY also grants to the CO -LESSEES, non-exclusive right for ingress and egress, on foot or motor vehicle, including trucks, over the Real Property to the Premises, adjacent parking areas- and associated common areas from the nearest public right-of-way, seven (7) days a week, twenty-four (24) hours a day, including normal business hours, for installation, maintenance and operation, all at CO -LESSEES' sole expense, of the communications facility, including the installation and maintenance of utility wires, cables, conduits and pipes over, under or along said right of way. The CO -LESSEES acknowledge that this is a secured facility and may require COUNTY escort to various areas within the Facility. COUNTY shall cooperate with CO -LESSEES in any effort to obtain utility service along said right of way by signing such documents or easements as may be required by utility companies. CO -LESSEES shall apply for building permits within 90 days of the execution of this AGREEMENT and shall provide COUNTY with written notice of the commencement date within ten (10) days preceding the commencement of construction by CO -LESSEES and which written notice shall become a part of this AGREEMENT. 4. RENT. CO -LESSEES (WMKL and WGES), for the use of the Community Antenna and ground space at the North Key Largo site must, together, pay the COUNTY an annual fee of $32,400.00. This annual rent shall be due in monthly installments of $1,350.00 payable by each CO -LESSEE beginning upon the first day of broadcast transmission and pro -rated, thereafter due and payable on the first day of each month payable in advance. The CO -LESSEE'S annual rent will be adjusted annually by a four (4%) percent increase. The CO -LESSEES' twelve monthly payments shall be remitted to Monroe County Clerk's Office, 500 Whitehead Street, Key West, FL 33040. The CO -LESSEES shall, collectively and individually, pay directly to Sprint Spectrum, L.P. a one-time co -location fee required under the terms of the license agreement through which the COUNTY authorized Sprint Spectrum, L.P. to construct the tower, prior to any construction activity. The annual rent of the CO -LESSEE shall be temporarily abated for a period of 30 months, but payment of the monthly amount plus one -tenth (1/10) of the arrearage shall commence on the first day of the third year and shall continue until the arrearage is paid. Upon payment in full for the arrearage created by the temporary abatement of rent, the CO -LESSEES shall commence payment of the monthly rent required under this agreement. 5. TAXES. The CO -LESSEES must pay all taxes and assessments, including any sales or use tax, levied by any government agency with respect to the CO -LESSEES' operations on the premises. E North Key Largo Tower 6. INSURANCE. CO -LESSEES shall, throughout the term of this lease agreement, maintain insurance in a minimum amount of One Million Dollars ($1,000,000.00), as more particularly described in Exhibit C, attached hereto and incorporated herein by reference, unless waived or modified by County Risk Management per Administrative Instruction 4709. The insurance policy (or policies) shall name Monroe County as an additional insured. The CO -LESSEES must keep in full force and effect the required insurance during the term of this Agreement. If the insurance policies originally purchased which meet the requirements of this lease agreement are canceled, terminated or reduced in coverage, then the CO -LESSEES must immediately substitute complying policies so that no gap in coverage occurs. Copies of current policy certificates shall be filed with the COUNTY Risk Management office at 1100 Simonton Street, Key West, FI. 33040, whenever acquired or amended. 7. CONDITION OF PREMISES. The CO -LESSEES must keep the premises in good order and condition. The CO -LESSEES must promptly repair damage to the premises. At the end of the term of this Agreement, the CO -LESSEES must surrender the premises to the COUNTY in the same good order and condition as the premises were on the commencement of the term, normal wear and tear excepted. The CO -LESSEES are solely responsible for any improvements to land and appurtenances placed on the premises. If the Tower should be totally or substantially destroyed or damaged (so that CO -LESSEES may not operate their facility as contemplated under this AGREEMENT) so that rebuilding the Tower "as is" would not be economically feasible, as may be reasonably determined by COUNTY, CO -LESSEES may at their sole discretion terminate this AGREEMENT or rebuild the Tower at their expense. If CO -LESSEES should elect to rebuild the Tower as provided for in this paragraph, then this AGREEMENT shall recommence at that point in time as if this AGREEMENT had just been approved by the parties hereto. In the event that due to such damage or destruction, CO -LESSEES' use of the Premises is disrupted, the fee due hereunder shall abate in full pending restoration or repair of the Premises; provided however, if CO -LESSEES' use of the Premises is disrupted for more than forty-five (45) days, then CO -LESSEES shall have the right to terminate this LICENSE AGREEMENT. 8. IMPROVEMENTS. No structure or improvements of any kind, other than the equipment shelter proposed in Exhibit "A", shall be placed upon the land without prior approval in writing by the County Administrator. No structure or improvements of any kind, including the equipment shelter proposed in Exhibit "A", shall be placed upon the land without a building permit issued by COUNTY and any other agency, federal or state, permits required by law. Any such structure or improvements shall be constructed in a good and workmanlike manner at CO -LESSEES sole cost and expense. CO -LESSEES shall prepare, at their own expense, all necessary drawings and specifications for the installation of CO -LESSEES' equipment, and obtain from the Tower manufacturer a certified structural tower analysis, in compliance with Monroe County Building Codes, which includes all existing tower equipment, future COUNTY antennae, the WMKL/WGES proposed antenna and lines and existing future engineered private carrier service co -locations. Should the tower analysis result in a finding that redesign or structural strengthening of the tower is necessary to accommodate CO -LESSEES' equipment, such redesign and /or strengthening shall be at the sole cost of CO -LESSEES. Subject to any landlord's lien, any structures or improvements constructed by CO - LESSEES shall be removed by the CO -LESSEES at CO -LESSEES' sole cost and expense, by midnight on the day of termination of this Agreement or extension hereof, and the land restored as nearly as practical to its condition at the time this agreement is executed unless the Board of County Commissioners accepts in writing delivery of the premises together 3 North Key Largo Tower with any structures or improvements constructed by CO -LESSEES. Portable or temporary advertising signs are prohibited. CO -LESSEES shall perform, at the sole expense of CO -LESSEE, all work required in the preparation of the property or premises hereby leased for occupancy by CO -LESSEES; and CO -LESSEES do hereby accept the leased property or premises as now being in fit and tenantable condition for all purposes of CO -LESSEES. COUNTY reserves the right to inspect the leased area and to require whatever adjustment to structures or improvements as COUNTY, in its sole discretion, deems necessary. Any adjustments shall be done at CO-LESSEEs' sole costs and expense. Any building permits sought by CO -LESSEE shall be subject to permit fees. 9. HOLD HARMLESS, The CO-LESSEEs are liable for and must fully defend, release, discharge, indemnify and hold harmless the COUNTY, the members of the County Commission, County officers and employees, and County agents and contractors, and the State, its officers and employees, from and against any and all claims, demands, causes of action, losses, costs and expenses of whatever type - including investigation and witness costs and expenses and attorneys' fees and costs - that arise out of or are attributable to the CO-LESSEEs' operations on the premises except for those claims, demands, damages, liabilities, actions, causes of action, losses, costs and expenses that are the result of the sole negligence of the COUNTY. The CO-LESSEEs' purchase of the insurance required under this Agreement does not release or vitiate its obligations under this paragraph. 10. NON-DISCRIMINATION. The CO -LESSEE for themselves, their personal representatives, successors in interest, and assigns, as a part of the consideration hereof, do hereby covenant and agree that no person on the grounds of race, color, or national origin shall be excluded from participation in, denied the benefits of, or be otherwise subjected to discrimination in the use of premises or in the contracting for improvements to the premises. 11. TERMINATION. Upon breach or default of any of the terms of this agreement by either CO -LESSEE, COUNTY shall give the breaching party written notice of the breach and the breaching party(ies) shall thereafter have ten (10) days to cure a monetary breach and sixty (60) days to cure any other breach. After the time to cure the breach, the COUNTY may treat the CO -LESSEE in default and terminate this Agreement upon failure of either or both of the CO -LESSEES to comply with any provision of this Agreement, which failure or default is not cured the requisite number of days, dependent upon the type of breach, from the receipt of notice. Any waiver of any breach of this agreement shall not be deemed a continuing waiver and shall not operate to bar the COUNTY from declaring a forfeiture for any succeeding breach either of the same conditions or otherwise. This Agreement may be terminated by COUNTY with respect to any of the towers if and when, for any reason any of the towers may become unsafe or unusable. CO- LESSEE(s) shall have the right to terminate this lease upon giving thirty days prior written notice to both the COUNTY and the other CO -LESSEE. 12. DEFAULT -WAIVER. The waiver by the CO -LESSEES) or the COUNTY of an act or omission that constitutes a default of an obligation under this Agreement does not waive another default of that or any other obligation. 13. ASSIGNMENT. The CO-LESSEE(s) may not assign this Agreement or assign or subcontract any of its obligations under this Agreement without the approval of the COUNTY's Board of County Commissioners. In the event of any sale of any of the stations to an entity which is not party to this agreement, COUNTY reserves the right to renegotiate the terms of the assigned agreement or to amend this agreement, at COUNTY's sole discretion, based on the change in circumstances including but not limited to whether the 4 North Key Largo Tower proposed assignee is a not -for -profit entity exempted from taxation by 26 USC § 501(c). All the obligations of this Agreement will extend to and bind the legal representatives, successors and assigns of the CO-LESSEEs and the COUNTY. 14. SUBORDINATION. This Agreement is subordinate to the laws and regulations of the United States, the State of Florida, and the COUNTY, whether in effect on commencement of this lease or adopted after that date. 15. INCONSISTENCY. Any item, condition or obligation of this Agreement that is in conflict with the items listed in this paragraph is superseded to the extent of the conflict. 16. GOVERNING LAWS/VENUE. This Agreement is governed by the laws of the State of Florida and the United States. Venue for any dispute arising under this Agreement must be in Monroe County, Florida. In the event of any litigation, the prevailing party is entitled to a reasonable attorney's fee and costs. 17. CONSTRUCTION. This Agreement has been carefully reviewed by the CO - LESSEE and the COUNTY. Therefore, this Agreement is not to be construed against any party on the basis of authorship. IS. NOTICES. Notices in this Agreement, unless otherwise specified, must be sent by certified mail to the following: COUNTY: County Administrator and 1100 Simonton Street Key West, FL 33040 CO -LESSEES Rob Robbins WMKL PO Box 561832 Miami, FI. 33256-1832 Gerald N. Leggett or his designee 10600 Aviation Blvd. Marathon, Fl. 33050 Lemuel Ortiz WGES 6883 SW 194 Avenue Pembroke Pines, FI. 33332 19. ACCESS. The authorized employees and agents of the Co -lessees shall, at all times during the term of this lease agreement, have the right to enter upon the respective premises where any of their equipment is located and enjoy full and complete access, provided such access is made in such a manner as to create the least practical interference with others' operations. 20. TOWER AND ANTENNA MAINTENANCE SAFETY Inasmuch as Monroe County has several emergency and government services located on the North Key Largo Tower which require emergency and routine maintenance, CO -LESSEES agree to terminate transmission of their Stations upon a request by the Monroe County Communications Department, within a 30 minute period of a request, and to maintain termination of there transmissions, until notified by the Communications Department, that it is safe to resume transmitting. 21. FCC RULES. The parties shall have the right to require amendment of this lease agreement to incorporate any conditions, changes or modifications which are, or may hereafter become, necessary to comply with any requirement or decision of the Federal Communications Commission (FCC) so as not to prejudice or cause the termination of any party's communications authorization. 5 NCrth Key Largo Tower 22. FULL UNDERSTANDING. This Agreement is the parties' final mutual understanding. It replaces any earlier agreements or understandings, whether written or oral. This Agreement cannot be modified or replaced except by another written and signed agreement. 23. EFFECTIVE DATE. This Agreement will take effect on IN WITNESS WHEREOF, each party has caused this Agreement to be executed by its duly authorized representative. (SEAL) BOARD OF COUNTY COMMISSIONERS ATTEST: DANNY L. KOLHAGE, CLERK OF MONROE COUNTY, FLORIDA By Deputy Clerk (SEAL) ATTEST: By Title (SEAL) ATTEST: By Title By Mayor/Chairman Call Communications Group, Inc. (WMKL) By: Title: Genesis Broadcasting Network Corp. (WGES) By: Title; MONROE COUNTY ATTORNEY ??ROVED AS TO F UZM A. HUT ON .�.r ASSIS7ANT�„pRNEY Dena j' Close Estimates from County Supplied Drawings a I Scale: 1" : 10' Guy Wires and Anchors not shown for clarity —Prox 10' - a" Prox 84' - 8" J� Call -FM Three -Phase Power Genesis Broadcasting feeder to be buried per Site Plan Keys Electric Coop. i' 07 February, 2004 J. L Sorensen / Prox2r-3" 1 Set -back similar A, at these points. /r----------------- Elevations shown are Approximate and taken / I I from Monroe County Drawings t-------� --------- ------------ --------- L-------- Prox131.5 ----- I I Dag. T ��Cii i I I See PiRod I I brawing i I I I I j I I I 7:0 I S upn Existing Platform I I ; andShelter All � I I I , Newton Cable Tray tfarm Existing pia , or equivalent I area -and shape I 12"wide:.Final Dimensions I to be determined at are approximate. , construction: I I I - I I I I I t—Prox 1: • � I Al I I I 12 x 17 I Prox.15' cox: I , re It Flllartl 8.00 Pad I g do at I I ieema S L — — — — — — — — — — — — — — — -� 1 . Al 1 1 tb1E skltrpe� meer►�aer. � I rtelduor I i ♦ Prox 19' tT'0" 11:5 tel Door S 1 1 7.43 . MS P roX 2843" I� —12' Gate Exhibit A •1 Prox NtWb1 Cab% Tray/ g—To Tow er--- 3" Sch 40 Pipe Stanchion for cable tray, Set In Concrete. One Stanchion perspan oftray. One additional stanchion at end. —Finished F —Avg. Grad Steps Cable Tray Building.as Schematic only Actual per Tim Bricker Install Railings as needed Steps Call -FM Genesis Broadcasting j. I. sorensen 07 feb 2004 670 I Steel 3-0 Double Prox,r Steel Door Door 11:50. S Stoop 4s" a.00. ConcreteLoadingPad nns Doors Stoop Concrete loading pad North Key Largo Tower EXHIBIT "B" INTERFERENCE/CONFLICTS CO -LESSEES shall, at it's their expense, maintain their equipment on or attached to the Premises in a safe condition, in good repair and in a professional manner, suitable to Monroe County and in accordance to any County, State or Federal laws and regulations. CO -LESSEES equipment shall be installed and maintained in a manner so as not to conflict or interfere with Monroe County or any other entity utilizing the facility. IN THE EVENT OF INTERFERENCE: 1. The entity being affected by the interference will notify the Monroe County Emergency Communications department. 2. The Monroe County Emergency Communications Department in joint participation with the entity being affected will respond within 24 hours to the facility and begin analysis of the problem. 3. Upon identification of the interference source, the responsible entity will be immediately contacted, followed with a written notice. 4. The CO -LESSEES, whom are responsible for the interference, will within 24 hours begin all steps necessary to correct and eliminate the interference at their expense. 5. Should the interference not be minimized within 72 hours or eliminated within 30 days, Monroe County may elect to terminate this Agreement or correct the interference problem at the CO -LESSEES' expense. CO -LESSEES has satisfied their self and hereby represents and warrants to Monroe County that no such obstruction or interference with transmitting, receiving, telephone or other equipment located on the premises, shall result to Monroe County or other LICENSEES, LESSEES or other USERS located at the facility. CO -LESSEES agrees to indemnify, hold harmless and defend Monroe County against any damage, including attorney's fees, arising out of such obstruction or interference with respect to uses which are in effect as to the date of this Agreement. 7 INSURANCE REQUIREMENTS FOR LEASES/RENTALS OF COUNTY -OWNED PROPERTY BETWEEN MONROE COUNTY, FLORIDA AND Call Communications, Inc. and Genesis Broadcasting Prior to the Organization/Individual taking possession of the property governed by this lease/rental agreement, the Organization/Individual shall purchase Vehicle Liability Insurance. Coverage shall be maintained throughout the life of the Lease/Rental Agreement and include, as a minimum, liability coverage for: • Owned, Non -Owned, and Hired Vehicles • Physical Damage Protection (if the leased property is a County - owned vehicle) The minimum limits acceptable shall be: $300,000 Combined Single Limit (CSL) ACV for Physical Damage If split limits are provided, the minimum limits acceptable shall be: $100,000 per Person $ 300,000 per Occurrence $ 50,000 Property Damage ACV for Physical Damage The Monroe County Board of County Commissioners shall be named as Additional Insured on all policies issued to satisfy the above requirements. In addition, if the lease/rental agreement involves County -owned vehicles, the Monroe County Board of County Commissioners shall be named as "Loss Payee" with respect to the physical damage protection. Exhibit C INSURANCE REQUIREMENTS FOR LEASE/RENTAL OF PROPERTY OWNED BY THE COUNTY BETWEEN MONROE COUNTY, FLORIDA AND Call Communications, Inc. and Genesis Broadcasting Prior to the Organization/Individual taking possession of the property governed by this lease/rental agreement, the Organization/Individual shall obtain General Liability Insurance. Coverage shall be maintained throughout the life of the contract and include, as a minimum: • Premises Operations • Products and Completed Operations • Blanket Contractual Liability • Personal Injury Liability • Expanded Definition of Property Damage • Fire Legal Liability (with limits equal to the fair market value of the leased property.) The minimum limits acceptable shall be: $300,000 Combined Single Limit (CSL) If split limits are provided, the minimum limits acceptable shall be: $100,000 per Person $300,000 per Occurrence $ 50,000 Property Damage An Occurrence Form policy is preferred. If coverage is provided on a Claims Made policy, its provisions should include coverage for claims fled on or after the effective date of this contract. In addition, the period for which claims may be reported should extend for a minimum of twelve (12) months following the termination of the Lease/Rental Agreement. The Monroe County Board of County Commissioners shall be named as Additional Insured on all policies issued to satisfy the above requirements. Exhibit C