Res. No. 197-97-10167RESOLUTION NO.197-97-10167
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE
CITY OF SOUTH MIAMI,FLORIDA,RELATING TO LEASE
AGREEMENT WITH BELLSOUTH MOBILITY,INC.;AUTHORIZING
THE CITY ATTORNEY TO ENGAGE SPECIAL COUNSEL TO
EVALUATE PROPOSED LEASE;PROVIDING AN EFFECTIVE DATE.
WHEREAS,representatives of theCityofSouthMiamiandBellSouthMobility,Inc.,
havenegotiatedaproposedleaseforaportion of theDante Fascell Parkforthe location and
operation of a120footmonopole,antennas,accessory buildingandaccessforaninitialterm
of 20years,with two 5-year renewal terms;and,
WHEREAS,because of recent federal deregulation of telecommunications,
technological developments,and expansion of the industry,the City anticipates that
additional telecommunication facilities will be located within the city in the foreseeable
future;and,
WHEREAS,theCity Attorney desirestoengage special counsel toevaluatethe
proposedlease because this initial telecommunications leasewill create an expectation that
future leases will provide equivalent termsand conditions;and,
WHEREAS,the law firm of Leibowitz &Associates,P.A.,submitted the attached
proposal to providetelecommunication services;and,
WHEREAS,the Mayor andCity Commission desireto authorize theCity Attorney
to engage the law firm.
NOW THEREFORE BE IT RESOLVED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF SOUTH MIAMI,FLORIDA:
Section 1.TheCityAttorneyisauthorizedtoengageLeibowitz&Associates,P.A.
toprovidelegalservicesin connection withtheproposed lease with BellSouth Mobility,Inc.
fora cost not to exceed $4,000 for professional servicespluscosts.Such amountsasare
approved by the City Attorney shallbe charged to Account No.1500-4320,Cable TV
Franchise Attorney.
!
I
CITY OF SOUTH MIAMI
INTER-OFFICE MEMORANDUM
To:Mayor andCity Com'n.Date:September 4,1997 13
From:Earl G.Gallop <^/.£Re:Resolution authorizing engagement
of telecommunications counsel
Issue:Theproposed20-year lease ofa portion ofDanteFascellParkto BellSouth
Mobility,Inc.for a telecommunication facility is immensely important.The literature
indicates that there willbean enormous increase in telecommunication facilities inthenext
few years.This first lease should be evaluated by a specialist in telecommunications law
because it will create expectations that future leases will contain similar provisions.
Leibowitz&Associates,P.A.,provides telecommunication services to local
governments.Ithasbeenusedbythe City inthepaston cable TV franchise matters.Itwill
provide services on the proposed lease for a blended $200 hourly rate,not to exceed
$4,000.00.I am hopeful that the lease can be presented to the commission at the October 7,
1997 regular meeting.
Copies ofthelaw firms proposal and the proposed lease are attached.
Recommendation:Authorize the City Attorney to engage Leibowitz &Associates
P.A.
C:\MYFILES\CSMMEMOS\TELECOM.MEM
P.A.
ROY J.BAROUET
STEPHEN S.BODDEN
NINA L.BONISKE
DANIEL H.COULTOFF
L.ROBERT ELIAS
EDWARD G.GUEOES
STEPHEN J.HELFMAN
JILL A.JARKESY*
GILBERTO PASTORIZA
ELLEN N.SAUL*
GAIL D.SEROTA*
JOSEPH H.SEROTA
DANIEL A.WEISS*
RICHARD JAY WEISS
DAVID M.WOLPIN
STEVEN W.ZELKOWIT2
Weiss Serota 8c Helfman,
ATTORNEYS AT LAW
2665 SOUTH BAYSHORE DRIVE
SUITE 420
MIAMI,FLORIDA 33133
TELEPHONE (305)85-4-0800
TELECOPIER (305)854-2323
BROWARD OFFICE
888 EAST LAS OLAS BOULEVARD
SUITE 7IO
FORT LAUDEROALE,FLORIDA 33301
TELEPHONE (954)763-1189
EarlGallop,Esq.
City Attorney
City of South Miami
613 0 Sunset Drive
South Miami,Florida 33143
August 11,1997
PALM BEACH OFFICE
187 2 SOUTHWEST I 7TM STREET
BOCA RATON,FLORIDA 33486
TELEPHONE (561)392-8762
TELECOPIER (561)392-7551
*OF COUNSEL
Re:LeaseAgreementbetweentheCityofSouthMiamiand
BellSouth Mobility Inc (the "Agreement")
Dear Mr.Gallop:
Atthe City's request,we have revised the captioned Lease
AgreementtoincludeSection19dealingwith Co-Location.
BellSouth also requested that additional language be added to
Section 4.01.Thislanguagehasbeenaddedattheendofthat
Section.
Kindly review the revised Agreement and call me at your
earliest convenience to discuss any aj£e&t4ons and/or comments.
Thankyouforyour anticipated cooperation^in this matter,
GP/mr
cc:JoEllen Cox
Dennis Witt,CityManager
Melvin Tooks,Parks Director
016.191
13
RESOLUTION NO.
2A RESOLUTION OFTHE MAYOR ANDCITY COMMISSION OFTHE
3CITYOF SOUTH MIAMI,FLORIDA,RELATING TO LEASE
4 AGREEMENT WITH BELLSOUTH MOBILITY,INC.;AUTHORIZING
5THECITY ATTORNEY TO ENGAGE SPECIAL COUNSEL TO
6 EVALUATE PROPOSED LEASE;PROVIDING AN EFFECTIVE DATE
7 WHEREAS,representatives ofthe City ofSouth Miami and BellSouth Mobility,Inc.,
8 have negotiated a proposed lease for a portion of the Dante Fascell Park for the location and
9 operation ofa 120 foot monopole,antennas,accessory building and access for an initial term
10of20 years,withtwo5-year renewal terms;and,
11 WHEREAS,because of recent federal deregulation of telecommunications,
12 technological developments,and expansion of the industry,the City anticipates that
13 additional telecommunication facilities will be located within the city in the foreseeable
14future;and,
15 WHEREAS,the City Attorney desires to engage special counsel to evaluate the
16 proposed lease because this initial telecommunications lease will create an expectation that
17 future leases will provide equivalent terms and conditions;and,
18 WHEREAS,the law firm of Leibowitz &Associates,P.A.,submitted the attached
19 proposal to provide telecommunication services;and,
20 WHEREAS,the Mayor and City Commission desire to authorize the City Attorney
21 to engage the law firm.
22 NOW THEREFORE BE IT RESOLVED BY THE MAYOR AND CITY
23 COMMISSION OF THE CITY OF SOUTH MIAMI,FLORIDA:
Section 1,The City Attorney is authorized to engage Leibowitz &Associates,P.A.
to provide legal services in connection with the proposed lease with BellSouth Mobility,Inc.
for a cost not to exceed $4,000 for professional services plus costs.Such amounts as are
approved by the City Attorney shall be charged to Account No.1500-4320,Cable TV
FranchiseAttorney.
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1Section2.Thisresolutionshalltake effect immediately upon approval.
2PASSED AND ADOPTED this 16 day of September,1997.
3 ATTEST:APPROVED:
5 CITY CLERK MAYOR
6 READ AND APPROVED AS TO FORM:
8 CITY ATTORNEY
9 C:\MYFILES\CSM\TELEREP.RES
/3
LEASE AGREEMENT BETWEEN THE
CITYOFSOUTH MTAMI AND BELLSOUTHMOBILITY Twr
this the3 LEAS^GffEMENT (tha "Agreement"),made and entered intodayof_1 1997 by and between:
CITY OF SOUTH MIAMI
amunicipalcorporation
613 0 Sunset Drive
South Miami,Florida 33143
(Hereinafter referred to as "CITY")
AND
BELLSOUTH MOBILITY INC
5201 Congress Avenue
Boca Raton,Florida 33487
(Hereinafter referred to as "TENANT")
.„.^REAS,CITY is the owner of a certain real property located
££l^k0k^^^«««•"^own^s1^^
the Pr^pSty;and*Staff recommends that TENANT lease a portion of
of ^^REAS^'}hS Ci-ty Fommission concurs with the recommendationofstaffanddeemsitinthebestinterestofthe.City of South
Miami to lease a portion of the Property to TENANT;and
the l^ot'^L^tZT^r"'*»—^*>r
to wr^gf Aow^Lertforr"^^^"*""^^^"anding
TENANT*tn0"?;^110"°?,Ten (*10-00>Dollars,in hand paid byTENANTtoCITY,as well as the mutual covenants hereinafterexchanged,the parties agrees as follows:neremafter
Section 1 REAL PROPERTY TOBE LEASED
CITY shall lease to TENANT that certain parcel of
£eal Property more Particularly described in
Exhibit "A"attached hereto,situated in South
Miami Dade County,Florida,together with the
nonexclusive right for ingress and egress,seven
(7)days a week,twenty-four (24)hours a day,on
foot or motor vehicles,including trucks,and for
installation and maintenance of utility wires,
1.01
12
cables,conduitsand pipes.
Section2 DUTIESANDRESPONSIBILITIESOPTENANT
2.01 TENANT shall use the Property for the purpose of
constructing,maintaining and operating a
communications facility anduses incidental
thereto,consisting ofa monopole nottoexceed 120
ft.(the "Pole"),antennas,a building or
buildings,as necessary now or in the future,to
shelter its telecommunications equipment,and to
meet TENANT'S telecommunications needs as described
in the Site Plan attached to this Agreement as
Exhibit "B»(collectively the "Facilities").
TENANT upon the approval of CITY may modify its
Facilities;said approval shall not be unreasonably
withheld by CITY.
2.02 TENANT shall be responsible for soil borings and
similar tests whichmayberequiredasa condition
ofconstructionandforallexpensesrelatedto its
improvements whichmaythereafterbe constructed
upon Property.CITY grants TENANT the right to use
adjoining and adjacent property owned by CITY as is
reasonablyrequiredduringconstructionand
installation of TENANT'S improvements.
2.03 TENANT shall maintain the Property ina reasonable
condition and meet all requirements imposed by
ordinancesoftheCityofSouthMiamiand Dade
County,Florida.
2.04 TENANT shall furnish,to its unmanned equipment
shelter,electric service for the operation of
TENANT'S telecommunications equipment.TENANT
shall be solely liable for electricity expenses
relating to its installation and equipment.
TENANT'S electrical service shall be separately
metered,andTENANTshallbe responsible for all
costs associated with metering,including the cost
of installing anymeter.
2.05 TENANT shall submit all required fees and
applications for permits to the applicable CITY
and/or County departments for review and approval.
2.06 TENANT will be responsible for making any necessary
returns for and paying anyand all property taxes
separately levied or assessed against its
improvements on the Property.TENANT shall
reimburse CITY,as additional rent,it
proportionateshareofanyincreaseinreal estate
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taxes levied against the Property in excess of the
taxes due for the real estate taxes on the real
property in which the Property is a part and
against TENANT'S improvements bythe taxina
authorities.a
2.07 TENANT,upon termination of this Agreement,shall
within ninety (90)days,remove its personal
property and fixtures from the Property.At CITY'S
option,when this Agreement is terminated and upon
CITY'S advance written notice to TENANT,TENANT
will leave the foundation,security fence and Pole
to become property of CITY.if such time for
removal causes TENANT to remain on the property
after termination of this Agreement.,TENANT shall
payrentatthethenexistingannualrateoronthe
existing month's pro rated basis,until such time
as the removal of personal property and fixtures
are completed.
2.08 TENANT shall keep the Property from any liens
arisingoutofanywork performed,materials
furnished,or obligations incurred by or for
TENANT.TENANT shall within twenty (20)days
following TENANT'S knowledge of the imposition of
any such lien,cause the same tobe released of
record by payment or posting of a proper bond.No
work which CITY permits TENANT to perform on the
Property shall be deemed tobe for the use and
benefit of CITY so that no mechanics or other lien
shall be allowed against the estate of CITY by
reason of its consent tosuch work.CITY shall
have the right to post notices that itis not
responsible for payment for anysuch work.
2.0 9 CITY hereby grants TENANT as a primary inducement
to the TENANT'S entering into this Agreement,the
first priority right to construct and operate its
Facilities on the Property.From time to time,
CITY may grant to itself andto other entities the
right to operate wireless communications facilities
on abutting properties in connection with the
operation ofsuch facilities or other
communications facilities;provided,however,that
CITY _shall not allow the operation of such
facilities and antennas by other tenants to
interfere withthe operation of TENANT'S antennas
and equipment asit exists atthe time of such
other tenant's installation or as it may be
modified at any time during the term of this
Agreement,as the same may be extended.If any
such interference occurs,CITY agrees to eliminate
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or cause the elimination of such interference with
TENANT'S operations within a reasonable time after
receipt of TENANT'S notice of such interference
and,if necessary,to cause the interfering party
to cease its operations.If such interference
continues for more than thirty (30)days after
TENANT'S notice to CITY with respect to such
interference,then TENANT shall have the right,in
addition to its right to pursue any or 'all
remedies available to it at law or in equity,to
immediately terminate this Agreement by givinq
written notice to CITY of such termination,in the
event of a termination under this section CITY
shall reimburse TENANT all prepaid rent as of the
date of termination.The CITY hereby also agrees
that the TENANT has no obligation or requirements
to upgrade or modify the Pole to facilitate the use
of the Pole for other entities which the CITY may
authorize.Any or all costs associated therewith,
shall be borne by parties other than the TENANT.
2.10 CITY hereby agrees that,if because of TENANT'S
operations on the Property any laws or regulations
of the Federal Aviation Administration,Federal
Communications Commission or any other relevant
governmental agencyorbody require or recommend
that TENANT'S antennas and/or the Pole be lit
and/or marked,TENANT may install and maintain such
lighting and markings.In no event,however,shall
TENANT be responsible for the installation or
maintenance of any lighting or markings required by
the operations of CITY or any other tenant on the
Pole.
Section 3 DUTIES AND RESPONSIBILITIES OFCITY
3.01 CITY shall cooperate with TENANT in its effort to
obtain certificates,permits and other approvals
that may be required by any federal,state or
County authorities.
3.02 CITY shall grant TENANT the right to survey said
property in order to meet requirements to submit
the application for permits.
Section 4 ACKNOWLEDGMENT
4.01 CITY and TENANT acknowledge that TENANT'S ability
to use the Property is contingent upon TENANT
obtaining,after the execution of this Agreement,
all the certificates,permits and other approvals
that are required by any federal,state and/or
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local authorities.in the event that any
certificate,permit or approval issued to TENANT is
canceled,expires,lapses or is otherwise withdrawn
or terminated by a governmental authority,so that
TENANT is unable to use the Property for its
intended purpose,TENANT shall have the right to
terminate this Agreement pursuant to Section 7 01
and shall be entitled to a refund from the City"of
any prepaid rent as of the date of termination.
4.02 TENANT shall,subsequent to the construction of its
Facilities,during the term of this Agreement,have
the right to terminate this Agreement without
cause,provided that TENANT provides CITY with one
(1)year's prior notice of the last day of
occupancy ("Termination Date")in writing in
accordance with Section 16 herein.
4.03 Prior to the submittal of the application for the
required building permit,TENANT shall have the
right to perform or caused to be performed and
shall have completed an assessment of the Property
and the adjacent areas in order to determine
whether such are contaminated by hazardous
substances or pollutants.If the assessment
reveals the presence of hazardous substances or
pollutants beyond levels acceptable to the TENANT
under applicable environmental laws,TENANT shall
have the right to terminate this Agreement pursuant
to Section 7.01.
4.04 CITY covenants that CITY has good and sufficient
title and interest to the Property and has full
authority to enter into and execute this Agreement.
CITY further covenants that there are no other
liens,judgments or impediments of title on the
Property.
Section5 TERM OP AGREEMENT
5.01 This Agreement is effective upon execution hereof,
for a term of twenty (20)years (the "Initial
Term")with two (2)five (5)year renewal terms
(the "Renewal Term"),which shall occur
automatically unless TENANT delivers written notice
to CITYof its intention notto renew at least six
(6)months prior to the expiration of the
applicable term.
Section 6 CONSIDERATION
6.01 Within thirty (30)days after the issuance of a
5
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Certificate of Use and Occupancy for the
Facilities,CITY shall be paid the amount of Three
Hundred Thousand and No/100 (Dollars)($300,000 00)
for the entire Initial Term.
6.02 Annual rent for the first year of the Renewal Term,
if applicable,shall be Ten Thousand and No/100
Dollars ($10,000.00)(the "Renewal Rental").The
Renewal Rental shall be increased five percent (5%)
over the prior year's rental.The Renewal Rental
shall be paid in monthly installments commencing on
the first day of the month and each month
thereafter.
6.03 This is a net-net-net lease and TENANT shall pay
taxes,including Florida state sales tax,real
estate taxes assessed against TENANT'S property,
utility charges,cost of maintenance,and all other-
charges and expenses associated with the TENANT'S
use of the demised premises of this Lease.This
Agreement being a taxable event,shall have Florida
state sales tax,as maybe adjusted from time to
time,addedtopaymentsoutlined above.
Section 7 TERMINATION
7.01 Pursuant to Sections 4.01 and 4.03 of this
Agreement,the TENANT may terminate this Agreement
by providing a ten (10)calendar day written notice
after signing of this Agreement.
7.02 Should TENANT default under any of the terms of
this Agreement,CITY may terminate this Agreement
by providing a ninety (90)calendar day written
notice to TENANT;however TENANT shall be given the
opportunity to correct any default within forty-
five (4 5)calendar days of receipt of written
notice.This Agreement shall not be terminated if
such default is ofa nature that it cannot be cured
in forty-five (45)calendar days and TENANT is
diligently proceedingtocuresuch defect.
Section 8 INDEMNIFICATION
8.01 General Indemnification:TENANT agrees to
indemnify,save and hold harmless and defend CITY,
its City Commission members,officers,agents and
employees,from any and all claims,damages,
liability,losses,causes of action of any nature
whatsoever,which may arise out of,in connection
with or because of the use and occupancy of the
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Property by TENANT or its officers,agents,
employees or independent contractors under this
Agreement or the breach of this Agreement by
TENANT.Pursuant to its liability,TENANT shall
pay all claims,losses,liens,settlements or
judgments,of any nature whatsoever,in connection
therewith,including,but not limited to,paralegal
fees,attorney's fees and costs to defend all
claims or suits,including attorney's fees on
appeal in the name of CITY when applicable,and
shall pay all costs and judgments which may issue
thereon at both the trial and appellate levels
Such indemnification shall not be limited to the
amount of comprehensive general liability insurance
which TENANT is required to obtain under this
Agreement.This indemnify shall not apply to any
claims arising from an act of gross negligence of
intentional misconduct of the indemnified party.
8.02 Nothing contained herein is intended nor shall be
construed to waive CITY'S rights and immunities
under the common law of Florida Statutes 768.28,as
amended from time to time.
8.03 To the extent permitted by law,the CITY agrees to
indemnify and hold TENANT,its officers,agents and
employees harmless from any and all claims,
damages,liabilities,losses,causes of action of
anynature whatsoever,whichmayariseoutoforin
connection with or because of the use or occupancy
of the Property by CITY,its agents and employees
pursuant tothis Agreement or breach ofthis
Agreement by CITY.Pursuant to its liability,CITY
shall pay all claims,losses,liens,settlements
and judgments in connection therewith,including,
but not limited to,attorney's fees,paralegal fees
and costs to defend all suits.This indemnity
shall not apply to any claims arising from an act
ofgross negligence or intentional misconduct of
the indemnified party.
Section 9 INSURANCE
9.01 TheTENANT shall not commence workunder this
Agreement untilhehas obtained allinsurance
requiredunderthissectionandsuch insurance has
been approved by the Risk Manager of the CITY nor
shall the TENANT allowany Contractor to commence
work under its contract with TENANT untilall
similar such insurance required to of the
Contractor has been obtained and approved.
n
9.02 Certificates of insurance,reflecting evidence of
the required insurance,shall be filed with the
Risk Manager prior to the commencement of the work.
These Certificates shall contain a provision that
coverages affordedunderthese policies willnotbe
canceled until prior written notice has been given
to the CITY.Policies shall be issued by
companies authorized todo business underthe laws
of the State of Florida.
9-03 Financial Ratings must be no less than "A"and
Class X respectively in the latest edition of
"Bests Key Rating Guide",published by A.M.Best
Guide.
9.04 Insurance shall be in force until all work required
tobe performed underthe terms ofthe Contract is
satisfactorily completed as evidenced by the formal
acceptance bytheCITY.Intheeventtheinsurance
certificateprovided indicates that the insurance
shall terminate and lapse during the period of this
contract,theninthatevent,the TENANT shall
furnish,at least thirty (30)days prior to the
expiration of the dateofsuch insurance,a renewed
certificate of insurance as proof that equal and
like coverage for the balance of the period of the
contract and extension thereunder isineffect.
The TENANT shall not continue to work pursuant to
this contract,unless all required insurance
remains in full force and effect.
9.05 REQUIRED INSURANCE
9.05.1 Comprehensive General Liability insurance
tocoverliabilitybodilyinjuryand
property damage.Exposures tobe covered
are:premises,operations,
products/completed operations,and
certain contracts.Coverage must be
writtenonanoccurrence basis,withthe
following limits of liability:
Bodily Injury
1.Each Occurrence $1,000,000
2.Annual Aggregate $1,000,000
Property Damage
1.Each Occurrence $1,000,000
2.Annual Aggregate $1,000,000
Personal Injury
Annual Aggregate $1,000,000
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Property Damage Liability Insurance shall
include Coverage for the following
hazards:X-explosion,C-collapse,U-
underground.
9.05.2 Workers Compensation insurance shall be
maintained during the life of this
contract to comply with statutory limits
for all employees,and in the case any
work is sublet,the TENANT shall required
the Contractor and Subcontractors
similarly to provide Workers Compensation
Insurance for all the latter's.employees
unless such employees are covered by the
protection afforded by the TENANT The
TENANT and his contractors and
subcontractors shall maintain during the
life of this policy Employers Liability
Insurance.The following limits must be
maintained:
Workers Compensation Statutory
Employer's Liability $500,000 per
occurrence
9.05.3 Comprehensive Auto Liability
Bodily Injury
1.Each Occurrence $1,000,000
2.Annual Aggregate $1,000,000
Property Damage
1.Each Occurrence $1,000,000
2.Annual Aggregate $1,000,000
Coverage shall include owned,hired and
non owned vehicles.
9.06 TENANT'S contractor shall hold the CITY,its
agents,and employees,harmless on account of
claims for damages to persons,property or premises
arising out of the operations to complete this
Agreement and name the CITY as an additional
insured undertheir policy.
Section 10 ASSIGNMENT
10-01 This Agreement may not be sold,subleased,
assigned or transferred at any time except to
TENANT'Sprincipalaffiliatesor subsidiaries
/i
of its principal,or to any company upon which
TENANT is merged or consolidated.As to other
parties,this Agreement may not be sold,
subleased,assigned or transferred without the
written consent of the CITY;such consent
shall not be unreasonably withheld or delayed
This provision will not preclude TENANT from
allowing other parties to co-locate on the
Pole,so long as this Agreement is in effect.
Section 11 COMPLIANCEWITHLAWS
11.01 TENANT shall comply with all statutes,
laws,ordinances,rules,regulations and lawful
orders of the United States of America,State of
Florida,City of South Miami and of any other
public authority which may be applicable.
Section 12 GOVERNING LAW;VENUE
12.01 The validity,construction and effect of this
Agreement shall be governed by the laws of the
State of Florida.
12.02 Any claim,objection or dispute arising out of the
terms of this Agreement shall be litigated in Dade
County,Florida.
Section 13 INSOLVENCY
13.01 In the event that either party shall become
insolvent,make a general assignment for the
benefit of creditors,suffer or permit the
appointment ofa receiver for its business or its
assets or shall avail itself of,or become subject
to,any proceeding under the Federal Bankruptcy Act
or any other statute of any state relating to /
insolvency or the protection of rights of
creditors,or become subject to rehabilitation,
then,at the option of the other party and
immediately upon written notice,this Agreement
shall terminate and be of no further force and
effect.
Section14 ENTIRE AGREEMENT
14.01 This Agreement contains the entire understanding of
the parties relating to the subject matter hereof,
superseding all prior communications between the
parties,whether oral or written.This Agreement
maynotbe altered,amended,modifiedor otherwise
changed nor may any of the terms hereof be waived,
10
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/
Section 15
15.01
Section 16
16.01
Section 17
17.01
except by a written instrument executed by both
parties.The failure of a party to seek redress
for violation of or to insist on strict performance
of any of the covenants of this Agreement shall not
be construed as a waiver or relinquishment for the
future of any covenant,term,condition or
election,but the same shall continue and remain in
full force and effect.
SEVERABILITY
Should any part,term or provision of this
Agreement be by the courts decided to be invalid
illegal or in conflict with any law of this State'
the validity of the remaining portions or
provisions shall not be affected thereby.
NOTICES
All notices or other communications required by
this Agreement shall be in writing and deemed
delivered upon mailing by certified mail,return
receipt requested orby facsimile transmission with
certification of transmission to the receiving
party,to the following persons and addresses:
CITY:
WITH
COPY TO:
TENANT:
City Manager
City of South Miami
6130 Sunset Drive
South Miami,Florida 33143
EarlGallop,Esq.
CityAttorney
6130 Sunset Drive
South Miami,Florida 33143
BELLSOUTH MOBILITY INC
5202 Congress Avenue
Boca Raton,Florida 33487
Attn:RealEstateandConstruction
Manager
OTHER PROVISIONS
Should the CITY,at any time during the term of
this Agreement,decide to sell all or party of the
Property to a purchaser other than TENANT,such
sale shall be under and subject to this Agreement
and TENANT'S rights hereunder,and any sale by the
11
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CITY of the portion of this Property underlying the
right-of-way herein granted shall be under and
subject to the right of the TENANT in and to such
right-of-way.CITY agrees not to sell,lease or
use any other areas of the entire parcel upon which
property is situated for placement of other
communications facilities if,in TENANT'S sole
judgment (which shall not be arbitrary)3Uch
installation would interfere with the facilities in
use by TENANT."es ln
17.02 If the whole of the Property,or such portion
thereof as will make the Property unusable for the
purposes herein leased,are condemned by anv
legally constituted authority for any public use or
purpose,then in either of said events the term
hereby granted shall cease form the time when
possession thereof is taken by public authorities
and rental shall be accounted for as between cityandTENANTasofthatdate.Any Cesser
condemnation shall in no way affect the respective
rights and obligations of CITY and TENANT
hereunder.Nothing in this provision shall be
construed to limit or affect TENANT'S right to an
award of compensation of any eminent domain
proceeding for the taking of TENANT'S leasehold
interest hereunder.In the event of a termination
under this section,CITY shall reimburse TENANT all
prepaid rent as of the date of termination.
17.03 City covenants that TENANT,on paying the rent and
performing the covenants,shall peaceably and
quietly have,hold and enjoy the Property.
17.04 Attorneys'Fees.if any party obtains a judgment
against any other party by reason of breach of this
Agreement,the prevailing party shall be entitled
to reasonable attorneys'fees and costs,includinq
level6 costs'at both the trial and appellate
Section lfl PUBLIC RECORDS
18.01 I ?ianu ANT agree that a c°Py of this AgreementshallberecordedinthePublicRecordsofDade
County,Florida,upon execution of this Agreement
?ENANT°St f°r recordation sha11 be Paid by the
12
/3
Section 1 9 CO-LOCATION
19.01 Tenant agrees that the proposed Pole will be
designed and constructed to accommodate an
additional Tenant (the "Co-Locator")so long as the
Co-Locator's equipment tobe mounted on the Pole
has the same or less wind loading effect than
Tenant.Co-Locator shall enter into a separate
Agreement withCity for ground space.Tenant shall
enter into a Co-Location Agreement with Co^-Locator
for leasing space on the Pole.Tenant shall charge
rent at prevailing market rates and shall re-coup a
pro-rata share of its capital costs of building the
Facility from the Co-Locator.
Notwithstanding the above,Tenant's obligation to
design and construct the Pole to accommodate a Co-
Locator shall not apply if the City requires the
Pole to be stealthed,for example,if the Pole
resembles a tree.
IN WITNESS WHEREOF,the parties hereto have caused these
presents tobe executed,the day and year first above written.
ATTEST;
Ronetta Taylor,CityClerk
Approved as to Form:
Earl Gallop,City Attorney
Signed,sealed and delivered
inthe presence of:
13
CITY OF SOUTH MIAMI
Anna Price,Mayor
TENANT
BELLSOUTH MOBILITY INC
By:
Title:
/3
STATE OF FLORIDA
COUNTY OF DADE
)SS
I HEREBY CERTIFY that on this
1997,before mepersonally appeared
day of
tomepersonallyknowntobetheindividualwhoexecutedtheforegoing
instrument and acknowledged before me that he/she executed the same
for the purposes therein express on behalf of
He/she is personally known to me or produced _~~~~~~~'
as identification.
STATE OF GEORGIA
COUNTY OF FULTON
)SS
)
Notary Public,State of Florida
Print Name:_^
Commission No.:
Commission Expires:
I HEREBY CERTIFY that on this day of
19 /before me personally appeared W4_
BellSouth Mobility Inc,a Georgia corporation,on behalf of the
corporation.He/She is personally known to me or has produced
as identification.
of
016.191
14
NOTARY PUBLIC,State of Florida
Print Name:
Commission No.:
Commission Expires
'3
MATTHEW L.LCI BOW'S
JOSEPH A.BELI5LE
ILA L.TCLO
CQWARO S.HAMMERMAN'
•AOMrrrcc to pcnnsylvani
BAR ONLT
Leibowitz &Associates,P.A.
SUITE i*ao
SUNTMOST INTERNATIONAL CENTER
S«t SOUTHEAST THIRD AVCNUC
MIAMI,FLORIDA,3313l.ir IS
TELEPHONE 005)S30-J3ZS
TELECOPIER 00»»»ao-»*ir
September 3,1997
yj/).•1 i'-.J I .U J :.<;C
SUITE BOO
20OO L.STREET.N.W.
WASHINGTON.D.C.20039
Ha Facsimile (305)858-4777 A.Regular Mail
EarJO.Gallop,Esq.
City Attorney
City of South Miami
do Earl Gallop &Associates
P.O.Box 330090
Coconut Grove,FL33233-0090
K*:Request for Proposal Regarding Representation
Dear Mr.Gallop:
^*Slf^T*^^^kai^^s^ces the Firm could
^prq^ofatdec^^TtcFiim appreciates the c^pcrtuni^iprovkfeservicestotheCityonmeseimportantissues.j"u«oc
in providing legal advice to local government entities with respect to telecommtimcarions Tradi&naUv
municipalities could generally manage tclecommunJcaUons facilities and services by negotiating franchise^
S%•"*!«^"I******locai telePhone ">"¥*>»and in some cases one or ^>cellularpiovMierslljus,historically our cable expertise was me area of inost mtexest to mimicma^However asaresult^advances mtechnology,including but not limited to the convergence of audiTvideo and data*^^bstanr^^=mt^
mumopahuc^axe now fecod wi?the ch^
greater number of senoce providers,all of whom are placing increasing demands on the City'swsources.
.^J*?™™^*1 federai ^J^kw to™1**teiecomniunicanons have undergone substantialchangesduringthepastyearwiththeresultthattheauthorityofmumcipalitiestoregulatethe
SS^St?™?SdUStr>'"i?cdta*rcvcnue fiom **mdustfy teialto process of being rwfefinedtoccjplywiththerevuedsta^lhemost significant rec^development mtJns area w«the adT^cmmnm^Actof 199^The Act ehminated previous barriers to competition between l5«dfa£distance telephone providers and cable operators,revised definitions of certainTerviees,created Open Video
fES "WMfiMjr changed the rnanner and extent to which local governments can regulate
tdecomrnunicanons providers.^^
_T f8 atelecomrnimications Law Firm,Leibowitz &Associates has extensively studied the provisions
oft^TclaomrnunicationsActof 1996.TheActwassign^intDLiwbymePresideritonFebraaryS,1996.
/i
Earl Gallop
September3,1997
Page2
•'.)••
T^Finnkimcda^
me Law Fmn conducted aseminar in Orlando to review the Act.Theseminar was attended by over^50
XZSEZ^™**?^^^-^P^^^toeducatelc^alg^e^^tnc
b^r>^?A *a^1«*W^*^h™***d<**»Act at coderences sponsoredby^Narional^Assoaanon of Telecommunications Officers and Advisors (NATOA),tjie National leagueofCities,the Florida L«gue of Gties,the Louisiana Munidpal Associan^the Irternaticcal M^S
A^S *Xaa°a ^LAl "WU "*FtU "*araeetinS °f *»**Countv/cTSSS
hiadditi^lheFumhas recently represented local jurisdictions before the Governor's Task Force onStateTdecommuiucanonsTaxissuesandiscurrentlytrackingtheFloridaPublicServiceCoJSSSoversightactivityrelatingtolocalteiecornmunicationsordinances,v^mnussioa s
LEGAL SEttvrrFfi
Onanon^ingbasis,theFuinisavailabktopr^
2?Z2?S^SS"?*?™«***™provider and services,including but not limited to updates^^^to^FCCn!^ak,n8S-^tf^Pra^dingswiflcr&rt^
the Cirv^r^^TJ08 **^"V**«to tfac.,atest FCC ^niaJdngs,the Firm is available to assistmeUtywithrespecttotelecommunica&ons matters,including but not limited to those listed below.
1-BellSouth Mobility,h*>Tower Lease
As a result of actions by the Federal Gov<Jrament,a new form of advanced wirekss
(XOTmumcanons known as PCS (Personal Comniurications Services)are now available to the public PCS
SrZf ?rfrm<"f^S ftfatoTOr,^^«istfflgcellularserwces.However,in order to offer these
to^m vmuallyevery community^inmis country,and 2)an agreement with many local government entities
to relocate microwave incumbents (oftentimes fire and police)residing in the 2GHz band
Withrespect to tower siting,local governments have the right to collect &ir and reasonable
compensationfoi:use ofthe pubUc rights ofway by providers oftelecommunications services.This source of
revenue totfac City should not be overlooked,nor,in general,should it be granted to athird party PCS
s ™r^*s to *e pubUc's ri^^local government man amount greater than what alocal government entity would realise by (Seating tiwleasingoftowersitestoanindependentthirdpartyentity.w*-ung mc
~*,-*_?addito°a to «te locations,PCS licensees cannot begin to provide service until they clear
tire,thus,PCS providers are eager to negotiate relocations on an expedited basis.Moreover,iederal law
/*
y .";
Earl Gallop
September 3,1997
Page3
u.jMi.i i.iji.j.ti Oi;jo;i)J j:;;p c;4 .a
g^emmeoi may mandate the terms and conditions.In addition,federal law reouiresl^!«~!^r^bur^l<^govennnent,for a-rti^
fees.Issues such as term of any resulting lease agreement fees fortiwTef Z ^S?-°'W
,,D...Lm*\?J l*cnnood,the City has been or soon will be approached by other PCS li^™-™*^
2-T^eccrornunicarjons Sirinp Orrimqn^f^)
ofri^Citysnghtsofway.Below the surface,avariety of users want to iwSSSlSrSSSberemoved,repaired or relocated.Gas,water and power &cilities,for exunple,m*£5^3*td^n^canc^ficu^Above the surface,avariety of users desire to JSS^SS^^tSt
ngl^ofmy 6cto suc^as tow^antenna
ZZ£ST y-prb,ic -*??"*"*****>«*—-*-*•*i 1^s£issues arise,and management costs and the need to generate revenues escalate.«-"«»
Local governments have chosen to address these issues either throueh a fflrnnnJ*,^.telec^cations^of«i^^t^SSSE
mdrv^ordu^dealangwrn^»is our\mderstnndmg,bas^rvw^caTS
telecommunication lower suing.**^y *""
Based on its representation ofother counties and municipalities on such issues,the Law Firm hasfirsthandexperiencew^m the business p^^
currently operating withn the State ofFlorida which could be utilized to the City's benefit
™«i^1£.Ffa2.*a?^le S!80*"*Cit>f pIaaDerS aad att0meys to devd°P *•fcPO of ordinance3X1JS2*mV?V^W°Uld mClUde'f0f CXample'*"«"**"rf "^J*of existing City Ordinancesand/or Code Scchons relating to Toning and/or tower siuns the drafo^of apre
Cuy sinterests;conducting aworkshop with City staff and provtders to solicit additional input;and attendance
*tthepubhcheanng(s)where the adoption ofthe final ordinance would be considered ^^
LEGAL FEffy
^^^^^.^r^asaaweral practice,(toes iw
due to anumber of factors beyond our control,including,but not limited to,the level of cooperation fcom the
/i
W W »-L3I?0¥ITZ UHC
Earl Gallop
September 3,1997
Page4
i •-j r
*•*<03/J3J?iJr-K'F.UHOi
providers.
Iac.,theRnnisavn^
•Review proposed draft lease agreement and provide analysis to
the City.
•Provide comments to the providers on their proposed lease
and/or draft amodel lease agreement that the City could utilize
for allsuch xuture requests.
•Coordinate with City staff and negotiate with provider *AlV)n
(assumes BeUSouth MobOity only).'
F«auctorserriccsdescrirx*abm«mt^•_,
for mdividuai attorneys u^^
Matthew L.Leibowitz,Esq.$300
Joseph A.Bclisie,Esq.$250
Eugene M.Kennedy,Esq,$223
OfCounsel
Jane Fagan,Esq.$2qo
EaL.Fdd,Esq.$175
Edward S.Hammetraan,Esq.$160
Allison Hift $*
Daniel Tuchman,Esq.$150
Telecommunications Specialist
Paralegal,Senior $g5
Paralegal,Junior $53
Ms.Hirssmioes wfllbcch^Specialist rate
(595 per hour)until admitted to the Florida Bar when ber hourly rate will
increaseto$125.J
We review and adjust our fee structure annually.
^*™^longtimetelephonecalls,air express charges,printing and hand^livcry.Photocopies ar^billed at IheiS?^
/£
";mJ-:[l'-wi'i Mwm ci;n/j-Walkman
JEari Gallop
September 3,1997
Page 5
^c^($025)r^OTpyacd6csimiTct^^#
cfcntaocprofcssiooal^inchidlngb^Retaining
referenced service,shall be aDD^bv*!^^!^!^^WS mcurredas aresult ofthe above~™>snau oe approved b>xhe Cnypnorto being mcuiienandshaUbebuledtothcChyateost
rcodenrf^l^^Wstatement^reflect serviceofourur^cfand SSS^SSr^Su^^T^TT*^^^pa>^le ^"^monthly.Alatecha^onT^Ail sums due fcr services performed will be billed^y ^^^cofl/a/or^monthwulbechargenonamoimtsducand^^
n^^S^J^^^ZS^.™—e *•**•^cononue legal services.counseLa^wmgr^s^^cstmg employment of other^andS^b^^^^
tl.at youx mteiests ^vffl r^be prcjudk^by the ok^to ensure payment of overdue account which *aK?^JSZ^K*^*****
having subject matteriurisdicn^
Either party may terminate this Agreement without cam**with th«^™j
Sincerelyyours,
Matthew L.Leibowitz
^p^^^^s^^^^-i^**--^described above.
By:
Title:
Date:
/b