HomeMy WebLinkAboutResolution_32-09_09/10/2009RESOLUTION NO. 32-09
A RESOLUTION OF THE VILLAGE COUNCIL OF THE VILLAGE OF TEQUESTA,
PALM BEACH COUNTY, FLORIDA, APPROVING A FIRST AMENDED LICENSE
AGREEMENT WITH OMNIPOINT HOLDINGS, INC. d/b/a T-MOBILE OF
BELLEVUE, WASHINGTON, OR ITS SUCCESSORS AND ASSIGNS,
SUCCEEDING AND AMENDING THE CURRENT LICENSE AGREEMENT TO
PROVIDE REVISED RENT, TERM AND TERMINATION PROVISIONS;
AUTHORIZING THE VILLAGE MANAGER TO EXECUTE SAME; PROVIDING AN
EFFECTIVE DATE AND FOR OTHER PURPOSES.
Whereas, the Village of Tequesta is party to a License Agreement with
Omnipoint Holdings, Inc., d/b/a T-Mobile for lease and operation of a
communications antenna and associated equipment located at 901 N. Dixie
Highway; and
Whereas, the Village and Omnipoint Holdings, Inc. desire to amend said
License Agreement to revise the rent, term and termination provisions thereof; and
Whereas, the Village Council believes that said amendment will serve the
best interests and promote the public health, safety and welfare of the Village of
Tequesta.
NOW, THEREFORE, BE IT RESOLVED BY THE VILLAGE COUNCIL OF THE
VILLAGE OF TEQUESTA, PALM BEACH COUNTY, FLORIDA, AS FOLLOWS:
Section 1 The First Amended License Agreement with Omnipoint Holdings,
Inc. d/b!a T-Mobile attached hereto as Exhibit "A" and incorporated herein by reference
as part of this Resolution is hereby approved, and the Village Manager of the Village of
Tequesta is hereby authorized to execute same on behalf of the Village of Tequesta.
Section 2 This Resolution shall become effective immediately upon passage.
The foregoing Resolution was offered by Council Member Turnquest who moved its
adoption. The motion was seconded by Council Member Humpage and upon being put
to a vote, the vote was as follows:
Mayor Pat Watkins
Vice-Mayor Tom Paterno
Council Member Vince Arena
Council Member Jim Humpage
Council Member Calvin Turnquest
For Adoption Against Adoption
X
X
X
X
X
The Mayor thereupon declared the Resolution duly passed and adopted this 10th day of
September, 2009.
MAYOR OF TEQUESTA
ATTEST:
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_ , 'PC~~~p pR 4G
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Lori McWilliams, CMC - ~: INCORPORATED
Village Clerk =,_~~;;,~~ _„1,~,.
Pat Watkins
~r~~ ~
urreli: Scenario #1 Scenario #2 Scenario #3
2009 43,79b :;; 43,799.52 33,000.00 237,028.64
2010 45,551.511 43,799.52 33,000.00 -
2011 47,373.5e 43,799.52 33,000.00 -
2012 49,268.50 43,799.52 33,000.00 -
2013 51,239.24 43,799.52 33,000.00 -
First Term Total ~ 37,232.33 218, 997.60 165, 000.00 237, 028.64
2014 53,288.81 45, 989.50 36, 300.00 -
2015 55,420.37 45,989.50 36,300.00 -
2016 57.637.18 45, 989.50 36, 300.00 -
2017 59,942.67 45,989.50 36,300.00 -
2018 02,340.37 45,989.50 36,300.00 -
2nd TermTotal 88,829.40 229,947.50 181,500.00 -
2019 04,833.99 48,288.98 39,930.00 -
2020 67,427.35 48,288.98 39,930.00 -
2021 70,124.44 48, 288.98 39, 930.00 -
2022 72,929.4[ 48,288.98 39,930.00 -
2023 _ 75,846.60 48,288.98 39,930.00 -
3rd Term Total 351,161.80 241,444.90 199,650.00 -
2023 78,880.46 50,703.43 43,923.00 -
2024 .' ~':'.:, r;8 50,703.43 43,923.00 -
2025 50,703.43 43,923.00 -
2026 50,703.43 43,923.00 -
2027 8,788.59 43,923.00 -
4th Term Total ~.•" . ' ~s 211,602.31 219,615.00
2028 48, 315.30 -
2029 53,146.83 -
2030 58,461.51 -
2031 _ Rent holld~,~
64, 307.66
-
2032 _ commencing 70,738.43
5th Term Total __ December 11.
294
969.74
-
Y027 to resume. ,
2033 1011012035 77,812.27 -
2034 85, 593.50 -
2035 94,152.85
Total Final Term - 257,558.63
All Terms 901,992.30 1,318,293.36 237,028.64
Compared tMlfit Currertt Term (135,947.36) 280,353.70 (800,911.03)
acenano iF4 Scenario #5
43, 799 53 45.5
45,989 50 47,:
48,288.97 49,E
50, 703.42 51,1 <
53,238.59 53,E
242,020 00 246,4
55,900.52 55,3
58,695 55 57,'3
61,630.32 59.E
64,711.84 62,2
67,947.43 64,7
308,885.66 299,8`
71,344.80 67,35;
74,912.04 70,05
78,657.65 72,8Es
82,590.53 7S,7F
86,720.05 78,7~<
394, 225, 07 364,8
91, 056.06 81,949
95,608.86 85,22
100, 389 30 88, 6
105,408
18,270 F;: ?cnt He
110,733 > 255 ~'
Rent holiday Rent holid:
commencing commencin .
December 11, December
2027 to resume 2025 to resin
10/10!2035 11 /101203
1,355,864.57 1,166,956.05
117,924.910 ___ 264,9x.
4% Increase each year
Scenario #1 5% Increase every 5 years with a rent holiday commencing 12/11!2027 to resume 10/102035
Scenario #2 10% Increase every 5 years
Scenario fR? $237,028.64 lump sum payment for a 15 year lease term
5% Increase every year with a rent holiday commencing 12!1172027 to resume 1071072035
4% Increase every year with a rent holiday commencing 12111 /2026 to resume 10/10!2035
Guaranteed
FIRST AMENDED LICENSE AGREEMENT
This First Amended License Agreement ("Agreement") is made and entered into by and
between THE VILLAGE OF TEQUESTA, a Florida municipal corporation, located at 345
Tequesta Drive, Tequesta, Florida 33469, hereinafter designated "VILLAGE" and OMNIPOINT
HOLDINGS INC., a Delaware corporation d/b/a T-Mobile, located at 12920 SE 38~' Street,
Bellevue, WA 98006, hereinafter designated "LICENSEE." The VILLAGE and LICENSEE are
at times collectively referred to hereinafter as the "Parties" or individually as the "Party".
NOW, THEREFORE, in consideration of the mutual covenants contained herein and
intending to be legally bound hereby, the Parties agree as follows:
LICENSE AGREEMENT
PREMISES.
VILLAGE hereby grants to LICENSEE the non-exclusive right to use approximately One
Hundred Fifty (150) square feet of ground space on the property of the VILLAGE for the
construction, operation and maintenance of an equipment shelter, and to erect, operate and
maintain communications antennas on the VILLAGE'S existing communications tower
("tower"), located at 901 N. Old Dixie Highway, Tequesta, Florida 33469, ("Premises") which is
located on a portion of real property owned by the VILLAGE ("Property") and which is legally
described in Exhibit A, attached hereto and made a part hereof. The LICENSEE shall have the
right to locate three (3) antennas on the tower at the one hundred foot (100') height level, as
more specifically shown on the site sketch attached hereto as Exhibit C. Notwithstanding
anything contained herein, the VILLAGE shall maintain exclusive ownership of the tower and
has the exclusive right to rent, lease or license all other space on the tower to third parties and to
collect the rent from any such leases or licenses. A description of the communications antennas,
wires, cables, conduits, pipes, coax, and other equipment is set forth in Exhibit B, attached
hereto and made a part hereof. A site sketch depicting the location of the tower and the
equipment shelter is attached hereto as Exhibit C. The equipment shelter shall be fenced and
secured by and at the sole expense of the LICENSEE using an eight foot high security fence.
Landscaping shall be as agreed upon by the parties prior to the commencement of construction.
2. USE.
LICENSEE may use the Premises for the transmission and reception of communications signals
and the installation, construction, maintenance, operation, repair and replacement of its
communication equipment, antennae and related equipment, wires, cables, conduits, pipes and
other accessories and improvements (collectively, the "Communications Facility"). Upon
execution of this Agreement, LICENSEE shall provide the VILLAGE with copies of all Federal
Communications Commission ("FCC") licenses for all frequencies used by LICENSEE on the
Premises. All equipment shall be painted in a neutral color so as to have the equipment blend
into the surrounding environment as best as is reasonably possible.
3. ACCESS.
VILLAGE grants to LICENSEE the non-exclusive right of ingess and egess from a public
right-of--way, seven (7) days a week, twenty four (24) hours a day, over the Property to and from
the Premises for the purpose of installation, operation and maintenance of the Communications
Facility, provided however that LICENSEE shall give the VILLAGE'S- plant operator 24 hours
advance notice prior to any such access at (561) 575-6235 during business hours, and (561) 262-
4326 after hours, except in the case of an emergency. LICENSEE shall comply with all
reasonable security procedures established by the VILLAGE to prevent unauthorized access to
the Communications Facility and the Property generally. The VILLAGE and the LICENSEE
shall each designate emergency contact personnel to notify in case of an emergency requiring
access to the Communications Facility. The VILLAGE reserves the right to enter the Premises at
any time to visually inspect the Premises or to show the Premises to prospective licensees,
lenders, or pwchasers.
4. ALTERATIONS.
Attached hereto as Exhibit B ("Equipment Specifications") is a list of all equipment and
antennae to be operated by the LICENSEE upon the Premises. LICENSEE shall not at any time
construct or install any additional antennas or equipment or make any improvements, additions,
modifications or alterations other than those approved by the VILLAGE, without the written
consent of the VILLAGE, which will not be unreasonably withheld, conditioned or delayed.
Notwithstanding the foregoing, the LICENSEE acknowledges that the appearance of the tower
and its compatibility with the surrounding areas is a significant and major concern of the
VILLAGE and that the VILLAGE shall have the sole and exclusive discretion to approve or
deny a request for the installation of additional equipment and/or antennas, based solely on
aesthetics. In no event shall the LICENSEE be permitted to make changes or modifications
which: (i) expand or materially change or alter the LICENSEE'S use of the Premises; (ii) are
installed outside of the boundaries of the Premises as depicted on Exhibit C; or (iii) may
otherwise adversely affect the structure or appearance of the Premises. Whenever the
LICENSEE desires to make alterations, improvements, modifications, additions or other changes
to the equipment or antennae designated on Exhibit B, then the LICENSEE prior to making said
changes shall provide the VILLAGE with plans and specifications which fully describe the
equipment and/or antennae to be installed. The plans and specifications shall include, but not be
limited to, the name of the manufacturer(s), model numbers, serial numbers, safety requirements,
dimensions, weight, frequencies, and the location of the proposed installation(s) on the Premises.
The plans and specifications shall be reviewed by the VILLAGE and approved prior to the
commencement of any proposed changes or improvements. After VILLAGE'S approval of the'
plans and specifications, anupdated Exhibit B to this Agreement shall be prepared by
LICENSEE and signed by both the VILLAGE and the LICENSEE; thereafter, the VILLAGE
and the LICENSEE shall amend the Agreement to substitute the revised Exhibit B for the prior
Exhibit B.
5. RENT.
This First Amended Agreement shall be effective on the date that the VILLAGE signs this
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Agreement (the "Effective Date"). The initial term of this Agreement shall be for a ten (10) year
period commencing on November 10, 2009 (the "Commencement Date"). Annual rent for the
first year of the initial term of this Agreement in the amount of Forty Five Thousand Five
Hundred and Three Dollars and Fifty Cents ($45,503.50) shall be paid to the VILLAGE no later
than the Commencement Date. Thereafter, annual rent shall be paid in full and in advance to the
VILLAGE or to such other person, firm or place as the VILLAGE may, from time to time,
designate in writing, no later than 30 days after each anniversary of the Commencement Date.
Commencing on the first anniversary of the Commencement Date and on each anniversary
thereafter, and any extension tenors of this Agreement, excluding the "Rent Holiday" period as
set forth hereinbelow, annual rent shall increase by an amount equal to four percent (4%) of the
previous year's rent. If LICENSEE fails to pay any payment of rent within fifteen (15) days after
receipt of written notice from the VILLAGE of such failure, then LICENSEE shall pay a late
charge in an amount equal to five percent (5%) of the amount of rent then due. The late charge
will be paid to the VILLAGE within thirty (30) days after demand by the VILLAGE.
LICENSEE and the VILLAGE agree that the late charge is a reasonable estimate of the extra
administrative expenses incurred by the VILLAGE in handling the delinquency. Any and all
sums of money or charges required to be paid by the LICENSEE under this Agreement other
than the annual rent shall be considered "Additional Rent" whether or not the same is so
specifically designated, and the VILLAGE shall have the same rights to enforce due and timely
payment by the LICENSEE of all Additional Rent as are available to the VILLAGE relating to
annual rent.
At the time of payment of the annual rent for the first one-year term of this Agreement,
LICENSEE shall also pay the VILLAGE aone-time financial contribution of Five Thousand
Dollars ($5,000.00), for reimbursement of legal and other professional fees incurred by the
VILLAGE in the negotiation and consummation of this Agreement.
6. ELECTRICAL.
LICENSEE shall install an electrical meter at the Premises for the measurement of electrical
power used by LICENSEE'S operations. LICENSEE is responsible for paying the costs of such
electrical usage directly to the local utility provider. If it is determined that LICENSEE has
consumed electrical service or other utilities which are in addition to those metered by
LICENSEE'S separate meter, the VILLAGE shall have the right to invoice LICENSEE for any
such charges, which shall be in addition to the rent and other payments required to be made by
the LICENSEE under this Agreement. The VILLAGE will not be liable for any interruption or
stoppage of electrical service to the Premises or for any damage to persons or property resulting
from that interruption or stoppage, unless caused by the negligence or willful misconduct of the
VILLAGE, its employees, servants or agents.
7. TERM AND EXTENSIONS: RENT HOLIDAY.
It is agreed and understood by the Parties that on the Commencement Date, this Agreement shall
automatically supersede and replace the current, existing License Agreement between the
Parties, at which time said current, existing License Agreement shall be void and of no further
force and effect.
3
LICENSEE shall have the right to extend this Agreement for three (3) additional five (5) year
terms, and then up to five (5) additional one (l) year tenms thereafter. This Agreement will
automatically renew for each successive renewal term unless LICENSEE notifies VILLAGE in
writing of LICENSEE'S intention not to renew at least ninety (90) days prior to the expiration of
the existing term. LICENSEE shall have no right to renew this Agreement if the LICENSEE is in
default under any provision of this Agreement beyond any applicable grace or cure period when
the then current term expires or ninety (90) days prior to the expiration of the then current term.
Should LICENSEE exercise its option to extend this Agreement as provided for herein,
LICENSEE shall be entitled to a Rent Holiday commencing December I1, 2026, with rent
resuming on the Commencement Date anniversary (November 10) of 2035.
8. CONSTRUCTION MAINTENANCE GOVERNMENTAL APPROVALS.
The LICENSEE will maintain, at its sole cost and expense, the Premises in good condition,
reasonable wear and tear excepted. All work must be performed by duly licensed contractors
specializing in such work, shall be performed in a good and workmanlike manner, shall be
prosecuted to completion in accordance with the plans and specifications and all applicable
governmental laws, regulations, rules, codes and orders. LICENSEE acknowledges that all work
performed by or on behalf of the LICENSEE is performed and accomplished solely for the
benefit and convenience of the LICENSEE and not for the benefit of the VILLAGE. LICENSEE.
shall ensure that the construction of the Communications Facility and any other work performed
by or for the LICENSEE is performed to completion in accordance with the approved plans and
that all persons or entities performing work or providing materials relating to such improvements
including without limitation, all contractors, subcontractors, laborers, materialmen, suppliers and
professionals, are paid in full for such services and materials.
Any damage caused to the Property due to the acts or omissions of LICENSEE, its agents,
employees or contractors, or any damage caused by the installation, repair, maintenance and
operation of the Communications Facility, shall be repaired at the sole cost of LICENSEE. If
LICENSEE fails to commence to perform its obligations under this Paragraph, the VILLAGE
will notify LICENSEE in writing of the specific required repair. If LICENSEE fails to perform
the maintenance or repair within fifteen (I S) days of receipt such written notice from -the
VILLAGE, the VILLAGE may perform the maintenance or repair at Licensee's expense.
LICENSEE will reimburse the VILLAGE within thirty (30) days after receipt of an invoice from
the VILLAGE for the cost of such maintenance or repair.
The VILLAGE shall cooperate with LICENSEE in its effort to obtain and maintain any required
governmental approvals ("Governmental Approvals") and shall take no action which would
adversely affect the status of the Property with respect to the permitted use thereof by
LICENSEE. The VILLAGE shall not be obligated to accept any restrictions or conditions of any
Governmental Approvals pertaining to the VILLAGE'S use of the Property that would adversely
affect the VILLAGE'S use of the Property or the market value of the Property. In the event that
any of such applications for such Govennmental Approvals should be finally rejected or
LICENSEE determines that such Governmental Approvals -may not be obtained in a timely
manner or any Governmental Approval issued to LICENSEE is canceled, expires, lapses, or is
otherwise withdrawn or terminated by a governmental authority, or that LICENSEE determines
4
that the Premises is no longer technically compatible for its use, or that LICENSEE, in its sole
discretion, will be unable to use the Premises for its intended purposes, LICENSEE shall have
the right to terminate this Agreement. Notice of LICENSEE'S exercise of its right to terminate
pursuant to this section shall be given to the VILLAGE in writing by certified mail, return
receipt requested, and shall be effective upon the mailing of such notice by LICENSEE. All rent
paid prior to the termination date shall be retained by the VILLAGE.
9. INDEMNIFICATION.
To the fullest extent permitted by laws and regulations, the LICENSEE shall indemnify, defend,
save and hold harmless, the VILLAGE, its officers, agents and employees from any and all
claims, damages, losses, liabilities and expenses, arising out of or pertaining to the construction,
maintenance, use and/or occupancy of the Premises and the Property by the LICENSEE or its
subcontractors, agents, officers, employees or independent contractors. The LICENSEE shall pay
all losses, claims, liens, settlements, or judgments of any nature whatsoever in connection with
the foregoing indemnification, including but not limited to, reasonable attorney's fees (including
appellate attorney's fees and costs). The indemnities provided by LICENSEE under this Section
9 will not extend or apply to claims, damages, losses, liabilities or expenses caused by or
resulting from the negligence or willful misconduct of VILLAGE, its employees, agents or
contractors. Nothing contained herein is intended nor shall it be construed to waive the
VILLAGE'S rights and immunities under the common law or Florida Statute 768.28 as amended
from time to time.
Except for liability resulting from or arising out of the acts or omissions of the VILLAGE, its
servants or agents, the VILLAGE will not be liable for the following: (i) loss of or damage to
LICENSEE'S property located in or on the Premises or the Property, by theft or otherwise; (ii)
injury or damage to persons or property or the Premises resulting from fire, explosion, falling
sheetrock, gas, electricity, water, rain, snow or leaks from any part of the Premises or from the
pipes, appliances or plumbing works, street or subsurface or from any other place or by
dampness; (iii) injury or damage caused by other licensees of the Property or any person on the
Property, by occupants of property adjacent to the Property, by the general public, or by the
construction of any private, public or quasi-public work; (iv) any latent defect in construction of
the Property; or (v) any loss or damage due to imperfect or unsatisfactory communications
experienced by LICENSEE for any reason whatsoever.
10. INSURANCE.
During the term of this Agreement, LICENSEE will maintain comprehensive general liability
and property liability insurance with liability limits of not less than $3,000,000.00 combined
single limit for injury to, or death of one or more persons in any one occurrence and for damage
or destruction to property in any one occurrence and the VILLAGE will be named as an
additional insured on all such commercial general liability policies and such coverage will be on
a primary basis. In addition, the LICENSEE shall maintain workers compensation insurance in
accordance with the statutory requirements of the State of Florida. LICENSEE'S insurance must
be underwritten by one or more insurance companies that are authorized to.do business in the
State of Florida. LICENSEE will deliver to the VILLAGE, no later than fifteen (15) days after
5
the Effective Date, certificates of insurance evidencing the coverages required under this
Agreement. All required insurance shall preclude any underwriter's rights of recovery or
subrogation against the VILLAGE with the express intention of the parties being that the
required coverages protect both parties as the primary insurance for any and all losses covered by
the above described insurance. The provisions of this Paragraph shall survive the termination or
earlier expiration of this Agreement.
1 1. RESTRICTIONS ON TERMINATION.
LICENSEE shall not have the right to terminate this Agreement during its initial term under any
circumstances. Thereafter, during any renewal term, and provided that LICENSEE is not in
default hereunder and shall have paid all rents and sums due and payable to the VILLAGE by
LICENSEE, LICENSEE shall have the right to terminate this Agreement upon any anniversary
of the Commencement Date provided that six (6) months prior notice is given the VILLAGE. In
the event of LICENSEE'S early termination of the Agreement under this Paragraph, LICENSEE
shall pay the VILLAGE a termination fee equal to one (1) year's annual advance rent, at the then
current rate, which shall be in addition to any prepaid rent for the then current term.
12. INTERFERENCE.
The frequencies to be used by the LICENSEE and VILLAGE are set forth on Exhibit "D"
("Frequencies"), attached hereto. From and after the date of this Agreement, LICENSEE agrees
that any additional equipment it desires to install upon the Premises shall be of the type and
frequency that will not cause measurable interference to the equipment of other licensees and
tenants of the Property, provided that the other licensees and tenants of the Property continue to
operate within their respective frequencies and in accordance with all applicable laws and
regulations. In the event of such interference and after the VILLAGE has notified LICENSEE of
such interference, LICENSEE will take all steps necessary to correct and eliminate the
interference. If LICENSEE is unable to cure such interference within seventy-two (72) hours
after receipt of notice from the VILLAGE, LICENSEE agrees to temporarily discontinue use of
its Communications Facility or portion thereof causing the interference until such time as
LICENSEE is able to cure the interference; provided, however, LICENSEE shall be able to
intermittently continue use of its Communications Facility solely for the purpose of testing
whether the interference has been cured.
In the event a dispute arises between the VILLAGE and LICENSEE over the source of
continuing interference under this Paragraph, the VILLAGE and LICENSEE agree to mutually
select an independent consultant ("Independent Consultant") with expertise in electronic
telecommunications to determine the source of the interference. The Independent Consultant's
determination will be conclusive. The fees for the Independent Consultant shall be shared
equally by the VILLAGE and the LICENSEE; provided however that if the Independent
Consultant determines that the LICENSEE'S Communications Facility is the source of the
interference, LICENSEE will pay all of the fees and expenses of the Independent Consultant and
LICENSEE will cease all operations until the interference is resolved. The Parties acknowledge
that there will not be an adequate remedy at law for non-compliance with the provisions of this
Paragraph and therefore, either Party shall have the right to specifically enforce the provisions of
6
this Paragraph in a court of competent jurisdiction.
13. REMOVAL UPON TERMINATION.
Upon termination of the Agreement,- LICENSEE shall remove its equipment, fixtures and all
personal property and restore the Premises to its original condition, reasonable wear and tear
excepted within sixty (60) days of the date of termination. If such time for removal causes
LICENSEE to remain on the Premises after termination ofthis Agreement, LICENSEE shall pay
rent at the then existing annual advance rate, until such time as the removal of its equipment,
fixtures and all personal property are completed. If LICENSEE fails to remove its equipment,
fixtures and all personal property within the sixty (60) day period, the VILLAGE shall have the
right to remove and store or dispose of such equipment, fixtures and personal property at the sole
cost of LICENSEE, including all reasonable attorney's fees incurred in connection with the
removal and storage or disposal of such equipment, fixtures and personal property.
14. QUIET ENJOYMENT.
The VILLAGE covenants that LICENSEE, on paying the rent and performing the other
covenants on its part to be performed under this Agreement, shall peaceably and quietly have,
-hold and enjoy the Premises.
15. TITLE.
The VILLAGE covenants that the VILLAGE is seized of good and sufficient title and interest to
the Property and has full authority to enter into and execute this Agreement. The VILLAGE
further covenants that there are no other liens, judgments or impediments of title on the Property,
or affecting the VILLAGE'S title to the same and that there are no covenants, easements,
restrictions or agreements binding on the VILLAGE or the Property which prevent the use of the
Premises by the LICENSEE as set forth above.
16. INTEGRATION.
It is agreed and understood that this Agreement contains all agreements, promises and
understandings between the VILLAGE and the LICENSEE and that no verbal or oral
agreements, promises or understandings shall be binding upon either the VILLAGE or the
LICENSEE in any dispute, controversy or proceeding at law, and any addition, variation or
modification to this Agreement shall be void and ineffective unless made in writing signed by
the Parties, In the event any provision of the Agreement is found to be invalid or unenforceable,
such finding shall not effect the validity and enforceability of the remaining provisions of this
Agreement. The failure of either Party to insist upon strict performance of any of the tenors or
conditions ofthis Agreement or to exercise any of its rights under the Agreement shall not waive
such rights and such Party shall have the right to enforce such rights at any time and take such
action as may be lawful and authorized under this Agreement, either in law or in equity.
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l7. GOVERNING LAW.
This Agreement and the performance thereof shall be governed, interpreted, construed and
regulated by the laws of the State of Florida, and venue for any action arising out of this
Agreement shall be in Palm Beach County, Florida.
18. NO SUBLETTING OR ASSIGNMENT.
The parties expressly understand and agree that the VILLAGE shall have the sole and
exclusive right to lease additional space on the tower and on the ground for the installation
of additional antennas, cables and eauiement. All rent or other compensation derived from
the rent of additional tower and/or ground space shall belong exclusively to the VILLAGE
and the _LICENSEE shall have no rights or claims to anv such revenues. The assignment,
subletting or subleasing of anv rights or suace con#'erred hereunder shall constitute a
material breach of this Agreement by the LICENSEE and- the VILLAGE shall have the
right to terminate this Agreement effective immediately and to pursue all legal and
equitable remedies available to it under this Agreement and applicable law.
This Agreement may not be sold, assigned or transferred by LICENSEE without the prior written
consent of the VILLAGE, which will not be unreasonably withheld, conditioned or delayed,
provided however that prior consent of the VILLAGE is not required if the assignment is made
to LICENSEE'S principal, affiliates, subsidiaries of its principal or to any entity which acquires
all or substantially all of LICENSEE'S assets in the market defined by the Federal
Communications Commission in which the Property is located by reason of a merger, acquisition
or other business reorganization.
19. NOTICES.
All notices hereunder must be in writing and shall be deemed validly given if sent by certified
mail, return receipt requested or by commercial courier, provided the courier's regular business
is delivery service and provided further that it guarantees delivery to the addressee by the end of
the next business day following the courier's receipt from the sender, addressed as follows (or
any other address that the Party to be notified may have designated to the sender by like notice):
VILLAGE: VILLAGE OF TEQUESTA
345 Tequesta Drive
Tequesta, Florida 33469
Attention: Village Manager
Telephone: 561-575-6200
With a copy to the Village Attorney
Corbett and White, P.A.
1111 Hypoluxo Road, Suite 207
Lantana, Florida 33462
Telephone: 561-586-7116
8
LICENSEE: Omnipoint Holdings, Inc.
cJo T-Mobile
12920 SE 38~' Street
Bellevue, WA 98006
Attention: PCS Lease Administrator
With a copy to Legal Department
Omnipoint Holdings, Inc., c/o T-Mobile
3111 W. Martin Luther King Drive, Suite 400
Tampa, FL 33607
Attention: Lease Administration Manager
Notice shall be effective upon mailing or delivering the same to a commercial courier, as
permitted above.
20. SUCCESSORS.
This Agreement shall extend to and bind the heirs, personal representatives, successors and
assigns of the Parties hereto.
21. RECORDING.
This Agreement shall not be recorded by either party in the Public Records.
22. DEFAULT.
In the event there is a default by LICENSEE with respect to any of the provisions of this
Agreement or its obligations under it, including the payment of rent, the VILLAGE shall give
LICENSEE written notice of such default. After receipt of such written notice, LICENSEE shall
have fifteen (1 S) days in which to cure any monetary default and thirty (30) days in which to
cure any non-monetary default, provided LICENSEE shall have such extended period as may be
required beyond the thirty (30) days if the nature of the cwe is such that it reasonably requires
more than thirty (30) days and LICENSEE commences the cure within the thirty (30) day period
and thereafter continuously and diligently pursues the cure to completion.
23. ENVIRONMENTAL.
LICENSEE shall not incorporate into or use, place, or dispose of any hazardous or toxic
materials on the Premises or the Property in violation of any environmental laws. For purposes of
this Agreement, hazardous or toxic materials mean any and all materials, substances, waste and
chemicals classified under applicable governmental laws, rules or regulations as hazardous or
toxic substances, materials, waste or chemicals. If LICENSEE ever has knowledge of the
presence in or upon the Premises of hazardous or toxic materials, LICENSEE must immediately
notify the VILLAGE in writing.
9
24. CASUALTY.
In the event of damage by fire or ather casualty to the Premises that cannot reasonably be
expected to be repaired within forty-five (45) days following same or, if the Property is damaged
by fire or other casualty so that such damage may reasonably be expected to disrupt
LICENSEE'S operations at the Premises for more than forty-five (45) days, then LICENSEE
may at any time following such fire or other casualty, provided the VILLAGE has not completed
the restoration required to permit LICENSEE to resume its operation at the Premises, terminate
this Agreement upon fifteen (15) days written notice to the VILLAGE. Any such notice of
termination shall cause this Agreement to expire with the same force and effect as though the
date set forth in such notice were the date originally set as the expiration date of this Agreement
and the Parties shall make an appropriate adjustment, as of such termination date, with respect to
payments due to the other under this Agreement. Notwithstanding the foregoing, all rent shall
abate during the period of such fire or other casualty.
25. CONDEMNATION.
In the event of any condemnation of the Property, LICENSEE may terminate this Agreement
upon fifteen (15) days written notice to the VILLAGE if such condemnation may reasonably be
expected to disrupt LICENSEE'S operations at the Premises for more than forty-five (45) days.
LICENSEE may on its own behalf make a claim in any condemnation proceeding involving the
Premises for losses related to the antennas, equipment, its relocation costs and its damages and
losses (but not for the toss of a leasehold interest). Any such notice of termination shall cause
this Agreement to expire with the same force and effect as though the date set forth in such
notice were the date originally set as the expiration date of this Agreement and the parties shall
make an appropriate adjustment as of such termination date with respect to payments due to the
other under this Agreement.
26. SUBMISSION OF LICENSE AGREEMENT.
The submission of this Agreement for examination does not constitute an offer to license the use
or occupancy of the Premises and this Agreement becomes effective only upon the full execution
of this Agreement by the Parties. If any provision herein is invalid, it shall be considered deleted
from this Agreement and shall not invalidate the remaining provisions of this Agreement. Each
of the Parties hereto warrants to the other that the person or persons executing this Agreement on
behalf of such Party has the full right, power and authority to enter into and execute this
Agreement on such Party's behalf and that no consent from any other person or entity is
necessary as a condition precedent to the legal effect of this Agreement.
27. APPLICABLE LAWS.
LICENSEE shall use the Premises as may be required or as permitted by applicable laws, rules
and regulations. The VILLAGE agrees to keep the Property in conformance with all applicable,
laws, rules and regulations and agrees. to reasonably cooperate with LICENSEE regarding any
compliance required by LICENSEE in respect to its use of the Premises.
10
28. SURVIVAL.
The provisions of the Agreement relating to indemnification shall survive any termination or
expiration of this Agreement. Additionally, any provisions of this Agreement which require
performance subsequent to the termination or expiration of this Agreement shall also survive
such termination or expiration.
29. CAPTIONS.
The captions contained in this Agreement are inserted for convenience only and are not intended
to be part of the Agreement. They shall not affect or be utilized in the construction or
interpretation of the Agreement.
30. RADON GAS.
Radon is a naturally occurring radioactive gas that, when it has accumulated in a building in
sufficient quantities, may present health risks to persons who are exposed to it over time. Levels
of radon that exceed federal and state guidelines have been found in buildings in Florida.
Additional information regarding radon and radon testing may be obtained from your county
health department. This notice is provided pursuant to Section 404.056, Florida Statutes.
31. TAXES.
The LICENSEE shall be responsible for the payment of all taxes, charges and assessments of any
kind (including without limitation all real property taxes) levied, charged, or assessed against the
property and/or equipment of the LICENSEE and/or which are directly attributable to
LICENSEE'S equipment and personal property located on the Property.
32. SAFETY CERTIFICATIONS.
On each of the following occasions, LICENSEE will provide the VILLAGE with a certification
from a qualified independent third parry acceptable to the VILLAGE ("Safety Certification"): (i)
prior to commencing installation of the equipment and Communications Facility; (ii) within sixty
(60) days after commencing operation of the Communications Facility; and (iii) at any
subsequent time that LICENSEE makes material alterations to the Communications Facility that
affect in any manner the equipment, Communications Facility or radio frequency transmissions
from the equipment or the Communications Facility. Each Safety Certification must verify that:
(i) the Communications Facility does not generate radio frequency emissions at a level that could
cause persons in uncontrolled areas to be exposed to radiation in excess of the Maximum
Permissible Exposure levels established by FCC regulations; (ii) the Communications Facility
does .not generate radio frequency emissions at a level that could cause persons who enter
controlled space, as defined by FCC regulations, to be exposed to radiation in excess of the
Maximum Permissible Exposure levels established by the FCC for occupational exposure. If the
Safety Certification does not provide the verifications described herein, then VILLAGE may
terminate this Agreement effective upon written notice to LICENSEE.
11
33. ATTORNEY'S FEES.
It is the understanding of the Parties that if legal action is required to enforce this Agreement,
the prevailing party will be entitled to reasonable attorney's fees and costs, including fees
and costs related to appellate proceedings, in addition to any other relief to which the
prevailing party is awarded.
34. ACCORD AND SATISFACTION.
In the event LICENSEE pays an amount than is less than the amount stipulated to be paid
under this Agreement, such payment shall be considered to be made only on account of the
stipulated amount. No endorsement or statement on any check or letter shall be deemed to be
an accord and satisfaction. The VILLAGE may accept any check or payment without
prejudice to the VILLAGE'S right to recover the balance due or to pursue any other remedy
available to the VILLAGE pursuant to this Agreement or applicable law.
35. LIST OF LICENSE AGREEMENT EXHIBITS (ALL OF WHICH ARE
INCORPORATED HEREIN AND MADE A PART HEREOF)•
EXHIBIT A- Legal description
EXHIBIT B- Equipment Specifications
EXHIBIT C- Site sketch site plan
EXHIBIT D- Frequencies
IN WITNESS WHEREOF, the Parties hereto have set their hands and affixed
their respective seals the day and year first above written.
WITNESS
Name:
WITNESS
Name:
VILLAGE•
By:
Name: Michael Couzzo
Title: Village Manager
WITNESS
Name:
WITNESS
Name:
LICENSEE•
By:
Name: Patrick Monroe
Title: Technical Director Engineering & Operations
12
EXHIBIT A
LEGAL DESCRIPTION OF THE PROPERTY
A 60.00 FOOT BY 40.00 FOOT PARCEL OF LAND LYING IN SECTION 30, TOWNSHIP
54 SOUTH, RANGE 40 EAST, BEING A PART OF THE VILLAGE OF TEQUESTA BEING
MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCE AT THE SOUTHEAST CORNER OF THE NORTHWEST ONE-QUARTER
(NW 1/4) OF THE NORTHWEST ONE-QUARTER (NW 1/4) OF SAID SECTION
30; THENCE NORTH 00 09'57" W ALONG THE EAST LINE OF SAID NW 1/4
OF THE NW 1/4, A DISTANCE OF 553.63 FEET; THENCE SOUTH 52 34'05"
WEST, A DISTANCE OF 229.81 FEET TO THE POINT OF BEGINNING OF THE
SPRINT PCS LEASE AREA; THENCE CONTINUE SOUTH 52 34'05" WEST, A
DISTANCE OF 40.00 FEET; THENCE NORTH 35 32'56" WEST, A DISTANCE
OF 60.00 FEET; THENCE NORTH 52 34'05" EAST, A DISTANCE OF 40.00
FEET; THENCE .SOUTH 35 32`56" EAST, A DISTANCE OF 60.00 FEET TO
THE POINT OF BEGINNING. CONTAINING 2,400 SQUARE FEET, MORE OR
LESS.
KAREN E. ROSELLI, ESQUIRE 1 3
EXHIBIT B
SPECIFICATIONS OF EQUIPMENT
ATTACHED
KAREN E. ROSELLI, ESQUIRE 14
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OptiRange'"
DR65-19-XXDP
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Electrical { Mechanicgl
Azimuth Beamwidth (-3 d8) 55' Dimensrons (L x W x D) 72in x 12in x 4in
Elevation 8eamwidth (-3 d6) d.5' (t82.9 cm x 30.5 crrt x 10.2 crn)
Gain
Polarizati 18.5 d8~ (16,4 dt3d)
' Rated Wind Velocity tJ0 mFh (209 kmfhr)
on Start, 3 45 Equiva;ent Flat Pale Area 6 R' (.56 m~}
Port-to-~ort Isolation >30 d8 Front Wind Load ®100 mpn (tfi 1 kph) 173 Ibs (768 N)
Frost-to-Back Ratio >35 dl3 S:oe Wind load Q tOD mph (161 kph) 581bs (256 N)
Electrical Oowntil! Options 0', 1' weignt 3T Ibs (15 kg)
VSWR t.35 1 Uax
Connect~rS
4; 7.16 D1N (female)
Power F andling 250 Watts CW Note: Patent Pending and U5 Patent number 5, 757, 246.
Passive Inlermodulal~on -147 dt3c Values and panems ue ~eoresentaeve and vanat+ons may occur. Spedncatkxu may
(2x20W (•43 dem)) cnarge without notice d_e to continuous Droduet ennsruTents. Digitized oatlem
Lightninc{ Protection Chassis Ground data ~s a~a~~abk tnm he 'actory or via 2+e wet site www.emswin:ess.com ano
reflect aU ::p3ales.
tilodel Number Descr:pt;cr Comments
MTirP00-10 _ Standard Mount (Suppl+ed wah antenna) Mounts to Wad ~r 1 5 inch. m 5.0 inch.OA, Pok (3,8 em ~ 12.1 em) _, .
MTG•S02-10. _ Swivel Mount Mounting kit providing azimuth adjustment.. _ _ _
MT+i-DXX-20' Mechanics! Downhll Kits 0' -10' or 0' -15' Mechanical Downtit _-__ _-- _~ ~---
MT+'rCXX-t0' Cluster Mcunl Kits, _ ]antennas 120' apart or 2 artei,rias 180'_•a_part _ -_ __-_~-~ --_-__ --
MT+3-C02.10 U-BoO Cluster Mount IGl 3 antennas 120' apart., 4 5' 0.0. pole. _ _ __ _ ~_-
MT+rTXX-10' Sleet Band Mount Pole diameters 7 5' - 45' _ •_ _ _ _
'Model number shown rep2sen-s a seres of products. See me~rtirg options section far specific model n,;mber
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- Don Dobson o.~. 1/23/96 B m:~msofficc.421winword
Site Engineering Quick Reference Sheet
~Physicat Dimensions & Characteristics:
Radio Cabinet; Mounting Base; Extended Cable B e; (Rooftop)
Width = 5 I in. Width = 51 in. Width = S 1 in.
Depth = 28 in. Depth = 28 in. Depth = 28 in.
Height = 48 in. Height = 16 in. Height = 6 in. '
Tom Width = 51 in.
Depth = 28 in.
Height = b4 in.
W~~hts:
(increase to 70 in. if using Cable Basel
Basic Cabinet = X98 lbs.
Equipped = 933 lbs. {excl. batteries)
Mounting Base = 23 0 lbs.
Cable Base = 75 lbs. (+ 40 w ded Footing Support)
Totals = 1320 lbs. (1395 4 5 /Cable Base)
133 pounds per square foot. (Radio Cabinet & Mounting Base only}
**Actual floorloading will depend upon floor structure and
adjacent equipnieat
Acoastic Nose ( Ic °se Io wall or o h r ~+.~.,~+„~o~ ;.
* * 62 dBA @ 0 ft. (* *65 decibels is approx. equivalent to
* * 40 dBA @ 30 R. normal human speech)
Available CQ ors; Forest Green and Light Gray
Paint Tt,,,F•~ Powder Coat -Baked Enamel
EXHIBIT C
SITE PLAN/SKETCH OF TOWER AND EQUIPMENT SHELTER
KAREN E. ROSELLI, ESQUIRE 15
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OVERALL SITE _PLAN _~1 •pITM
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S OVERALL SITE PLATE
fi DATE' 10.3.03
•. SCALE• AS NOTCD
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EXHIBIT D
FREQUENCIES
Transmit 1965 - 1975 NII;z
Receive 1885 - 1890 MKz
XAREN E. ROSELLI, ESQUIRE 16