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Communications Equipment Space Use Agreement-CoKnicil ~'ou~e'~ - ~~.,~.v,~,,,, ~ a ~y- a~~ 3 ~ c7E- s/~~/o~ COMMUNICATIONS EQUIPMENT SPACE USE AGREEMENT THIS AGREEMENT, made and entered into this l ~o ~' day of ~ y 200 7 by and between Miami-Dade County, a political subdivision f the State of Florida (the "County"), and the City of Miami Beach, a municipal corporation organized and existing under the laws of the State of Florida (the "City") (referred to collectively as the "Parties"). WITNESETH: WHEREAS, the City has long term leases for two rooftop sites described more specifically on Exhibit A hereto (the "City's Sites"); WHEREAS, the County owns property operated by the Public Health Trust ("PHT"), including a rooftop site described more specifically on Exhibit B hereto (the "County's Site") (for the purposes of this Agreement, the County's Site and the City's Sites may be referred to collectively as the "Parties' Sites", and alternatively as a "Party's Site"); WHEREAS, the PHT consents to this Agreement; and WHEREAS, the County and City desire to enter into this Agreement so that they can improve their respective telecommunications systems; NOW, THEREFORE, in consideration of the mutual covenants and obligations set forth, the County and the City agree as follows: 1. Use of Premises a. The City hereby gives permission to the County to enter the City Sites to use them for the purpose of installing, repairing, maintaining and operating the telecommunications equipment described more specifically on Exhibit C (the "County's Communications Equipment") (for the purposes of this Agreement, the County's Communications Equipment and the City's Communications Equipment may be referred to collectively as the "Parties' Communications Equipment", and alternatively as a "Party's Communications Equipment"), and for uses necessarily incident thereto, including the transmission and reception of radio communication signals. The City warrants and represents that it has the necessary authority to grant this permission to the County. b. The County hereby gives permission to the City to enter the County Site to use it for the purpose of installing, repairing, maintaining and operating the telecommunications equipment described more specifically on Exhibit D (the "City's Communications Equipment"), and for uses necessarily incident thereto, including the transmission and reception of radio communication signals. The County warrants and represents that it has obtained all permissions necessary from any landlord or owner of the County Sites to grant this permission to the City. Miami Beach Communications Equipment Space Use Agreement 2. Fees Unless otherwise specified herein, neither Party will charge the other for use of the County Site or the City Sites unless an additional fee or cost directly attributable to the use is levied or imposed on either or both of the Parties by a third party as a result of this Agreement. In the event such a fee or cost is levied or imposed, the Party whose use causes such fees or costs will be responsible for such fees or costs. 3. Term a. The term of this Agreement shall be ten (10) years, commencing upon the execution of this Agreement by all Parties following any approval required of any legislative body of any Party (the ("Effective Date"). b. Each Party shall have the right to renew this Agreement, without mutual consent, for two (2) additional five-year terms (each, a "Renewal Term"), on the same terms and conditions. This Agreement shall automatically renew for each successive Renewal Term unless the Parties mutually notify each other of their intention to let this Agreement expire at least sixty (60) days prior to the expiration of the then existing term of the Agreement. 4. Interference a. Each Party agrees that it shall not use, nor shall it permit its subcontractors, employees, or agents to use, any portion of the other Party's Site or appurtenant property in any way which interferes with the operations of the Party, and, more specifically, but without limiting the generality of the foregoing, with a Party's communications equipment installed prior to the Effective Date of this Agreement. For purposes of this section, interference shall be as reasonably determined by either Party. Each Party agrees it shall immediately cease any interference. In the event any such interference does not cease upon thirty (30) days written notice, the aggrieved Party may terminate this Agreement upon ten (10) days written notice. For the purposes of this section, "interference" shall include, but shall not be limited to, interruption or degradation of a Party's service. If, for any reason, a Party's use of the other's Site is anticipated to interrupt or degrade the other Party's services, the Party anticipating causing the interference shall notify the other Party at least 24 hours prior to the anticipated interruption, and in no event shall services be interrupted without the consent of the other Party. b. Without limiting the generality of the foregoing, each Party shall not use, nor shall it permit its contractors, subcontractors, employees, or agents to use, any portion of the other Party's Site or appurtenant property in any way which interferes with the operations or communication equipment of existing tenants of the building at which the Site is located, including, without limitation, any tenants which provide or maintain cellular communication facilities. In the event a Party's Communications Equipment causes such interference, that Party shall immediately take, at its sole cost and expense, 2 Miami Beach Communications Equipment Space Use Agreement any and all steps necessary to eliminate such interference. Such action shall include refraining from operating that Party's Communication's Equipment, if necessary. For purposes of this section, "interference" shall include, but shall not be limited to, interruption or degradation of the service of any existing tenant. Subject to the limitations provided in Section 768.28, Florida Statutes, each Party shall indemnify the other Party from and against any cost, expense, damages or liability, including, without limitation, reasonable attorneys fees at all levels and damages, which a Party may incur or sustain resulting from interference by the other Party's Communications Equipment with the operations or equipment of any existing tenant. c. Subsequent to the installation of a Party's Communications Equipment by a Party, neither the other Party nor its lessees or licensees shall be permitted to install new equipment on the Party's Site or on property appurtenant thereto owned or controlled by that Party, if such equipment is likely to cause interference with the other Party's operations. In the event interference occurs, the Party causing or allowing the interference agrees to take all action necessary to eliminate such interference, in a reasonable time period. In the event a Party fails to comply with this paragraph after thirty (30) days written notice, the aggrieved Party may terminate this Agreement upon ten (10) days written notice to the other Party. 5. Improvements; Liability; Utilities; Access a. Each Party shall have the right, at its expense, to erect and maintain the Party's Communications Equipment on the other Party's Sites, as described in Exhibits A through D hereof, and the right to run necessary wires, conduits, and cables through the common areas of the other Party's Sites. A Party shall not erect, install or maintain any improvements, equipment or facilities other than the Party's Communications Equipment as described in Exhibits C and D. A Party's Communications Equipment shall be erected and installed in accordance with plans reviewed and approved in advance by the other Party, which approval shall not be unreasonably withheld, conditioned or delayed. Any improvements, machinery or equipment installed by a Party shall remain the personal property of that Party and shall not be considered fixtures. Title to a Party's Communications Equipment shall be held by that Party, and that Party shall have the right to remove, upgrade, replace or reconfigure that Party's Communications Equipment at all times. Any damage caused to a Party's property when the other Party moves, upgrades, replaces or reconfigures a Party's Telecommunications Equipment shall be the responsibility of the Party causing the damage and shall be paid by that Party. Subject to the limitations provided in Section 768.28, Florida Statutes, each Party agrees to indemnify the other for any damages to a Party's property caused by a Party's removal, upgrade, replacement or reconfiguration of Communications Equipment at all times. b. Each Party warrants and represents that that Party's Communications Equipment, referred to above, and any and all other improvements, machinery or equipment installed by that Party, shall comply with all federal, state and local laws, codes and regulations. Each Party shall be responsible for repair of any and all structural 3 Miami Beach Communications Equipment Space Use Agreement or physical damage resulting from the installation, operation, or maintenance of that Party's Communications Equipment. c. Each Party shall have access to the other Party's Sites at any time (24 hours a day, 7 days a week). d. Any and all construction and installation on the County's Site, as referred to in this Agreement, which is done by the City, shall be coordinated with the Facilities Administration of the County and the Public Health Trust. e. Any and all construction and installation on the City's Sites, as referred to in this Agreement, which is done by the County, shall be coordinated with the IT Department of the City. f. A Party shall not have the right, except as provided in paragraphs 6a and 6b hereof, to make changes, modifications and/or alterations to the other Party's Sites without the other Party's prior written consent, which will not be unreasonably withheld, conditioned or delayed. g. Neither Party shall permit the other Party's Sites to become subject to any lien, charge or encumbrance whatsoever, arising out of installation of the Party's Communications Equipment, or any other work on or about the other Party's Site or property appurtenant thereto. If a Party's Site does become subject to any lien, charge or encumbrance arising out of work performed or at the direction of the other Party, the other Party shall, within twenty (20) days of notice of the lien, charge or encumbrance, do whatever is necessary to release, discharge or satisfy the lien, charge or encumbrance, at its sole expense. Subject to the limitations provided in Section 768.28, Florida Statutes, each Party shall further indemnify and hold harmless the other Party from and against any and all such liens, charges or encumbrances, it being expressly agreed that neither Party shall have any authority, express or implied, to create any lien, charge, or encumbrance on the other Party's Site, arising under the Construction Lien Law or otherwise. Each Party, with respect to improvements or alterations made or caused to be made by it, shall notify its contractor(s) of this provision. 6. Termination a. This Agreement may be terminated as follows: (i). by either Party with ten (10) days written notice after a default of any covenant or term hereof by the other Party which is not cured within 30 days of receipt of written notice of default (without, however, limiting any other rights available to the parties pursuant to any other provisions hereof or at law or in equity), provided that in the event the default cannot be cured within 30 days, the defaulting Party must commence to cure within the 30 day period and proceed diligently to cure it, but in no event shall the defaulting Party take more than 60 days to cure the default, without the written approval of the non-defaulting Party. 4 Miami Beach Communications Equipment Space Use Agreement b. Upon termination of this Agreement, each Party shall return the other Party's Sites to that other Party in a clean and orderly condition and in substantially the same condition as existed as of the Effective Date of this Agreement, reasonable wear and tear only excepted, with no changes or alterations, except those mutually agreed upon by the Parties. Each Party shall remove that Party's Communications Equipment installed by it, and shall repair any damage to the other Party's Sites. 7. Taxes Each Party shall pay any personal property taxes assessed on, or any portion of such taxes attributable to that Party's Communications Equipment. 8. Insurance Unless self insured, each Party shall provide and maintain Comprehensive General Liability Insurance of $1,000,000.00 Combined Single Limits ("CSL") with respect to all of its operations on the other Party's Sites, and shall name the other Party, including the Public Health Trust (for the County), and the landlord/owner of the City sites (for the City), as an additional insured on the policy or policies. Unless self insured, each Party shall provide and maintain Workers' Compensation insurance as, and in amounts, required by Florida law. Each Party shall deliver a certificate evidencing self insurance or insurance coverage before or upon the Effective Date of this Agreement. 9. Restitution If a Party's Site or property appurtenant thereto is damaged as a result of the other Party's installation, erection, maintenance, use or operation of that other Party's Communications Equipment, that other Party shall pay to the aggrieved Party, the full value of such damages, including without limitation repair costs, as restitution. 10. Destruction. Condemnation or Demolition of a Party's Site If the building on which a Party's Site is located is destroyed, condemned or demolished, through no fault of the other Party, such that a Party's Site is no longer usable for the purposes set forth in this Agreement, the Agreement shall no longer be effective with respect to the destroyed, alienated or demolished Party Site, and the neither Party shall have any obligation to rebuild or replace that Party's Site. 11. Indemnification and Hold Harmless a. In consideration of good and valuable consideration received from the County and in consideration of the covenants in this Agreement, the City agrees to indemnify and save harmless forever, the County (including the Public Health Trust), its officers, agents and employees from all claims, liability, actions, loss, cost and expense, including attorney's fees, which may be sustained by the County, it officers, agents, and Miami Beach Communications Equipment Space Use Agreement employees due to, caused by, or arising from the negligence of the City, its officers, employees and agents in connection with the performance of this Agreement. The City agrees to defend against any claims brought or actions filed against the County, its officers, agents and employees in connection with the subject of the indemnities contained herein. b. In consideration of good and valuable consideration received from the City and in consideration of the covenants in this Contract, the County and the Public Health Trust agree to indemnify and save harmless forever, the City, its officers, agents and employees from all claims, liability, actions, loss, cost and expense, including attorney's fees, which may be sustained by the City, its officers, agents, and employees due to, caused by, or arising from the negligence of the County, its officers, employees and agents in connection with the performance of this Contract. The County and the Public Health Trust agree to defend against any claims brought or actions filed against the City, its officers, agents and employees in connection with the subject of the indemnities contained herein. c. Notwithstanding the above, nothing shall create any liability for either the County, the Public Health Trust or the City beyond the scope of Section 768.28, Florida Statutes, as currently in effect or as lawfully amended in the future. 12. Notices All notices, requests, demands and other communications hereunder shall be in writing and shall be deemed given if personally delivered or mailed, by certified mail, return receipt requested, or by a nationally recognized courier service, to the following addresses: If to County, to: Felix Perez Miami-Dade County Enterprise Technology Services Department Director, Radio Communications Division 6010 SW 87~' Avenue Miami, FL 33173 With copies to: Dennis Proul Public Health Trust Sr. VP of IT/CIO 1611 NW 12 Ave West Wing Executive Offices Miami, FL 33136 6 Miami Beach Communications Equipment Space Use Agreement If to City, to: Mr. Ariel Sosa Communications Manager City of Miami Beach 1100 Washington Ave. IT Dept, 4th Floor Miami Beach, FL 33139 With copies to: Mr. Z. Steve Sawicki Radio Systems Communications Administrator City of Miami Beach 1100 Washington Ave. IT Dept, 4th Floor Miami Beach, FL 33139 13. Hazardous Materials Each Party agrees that it will not use, generate, store or dispose of any Hazardous Material (defined below) on, under, about or within the other Party's Site in violation of any law or regulation. Each Party represents, warrants and agrees (1) that neither it nor, to its knowledge, any third party has used, generated, stored or disposed of, or permitted the use, generation, storage or disposal of, any Hazardous Material on, under, about or within the Party's Site in violation of any law or regulation, and (2) that it will not, and will not permit any third party to use, generate, store or dispose of any Hazardous Material on, under, about or within the Party's Site in violation of any law or regulation. Each Party agrees to defend, indemnify and hold harmless the other Party and the other Party's agents and employees against any and all losses, liabilities, claims and/or costs (including reasonable attorneys' fees and costs) arising from any breach of any representation, warranty or agreement contained in this paragraph. As used in this paragraph, "Hazardous Material" shall mean petroleum or any petroleum product, asbestos, any substance known by the State of Florida to cause cancer and/or reproductive toxicity, and/or any substance, chemical or waste that is identified as hazardous, toxic or dangerous in any applicable federal, state or local law or regulation. This paragraph shall survive the termination of this Agreement. 14. Assignment Neither Party may assign, or otherwise transfer all or any part of its interest in this Agreement or in the other Party's Sites without the prior written consent of the other Party; provided, however, a Party may alienate and/or convey the property on which a Party's Site is located subject to this Agreement such that the third party receiving such alienation and/or conveyance shall be required to continue the obligations set forth in this Agreement with respect to the Party's Site alienated andlor conveyed. 7 Miami Beach Communications Equipment Space Use Agreement 15. Successors and Assiens This Agreement shall be binding upon and inure to the benefit of the Parties, their respective successors, personal representatives and assigns. 16. FAA and FCC Requirements Each Party shall be responsible for compliance with all marking and lighting requirements of the Federal Aviation Administration ("FAA") and the FCC with respect to that Party's Communications Equipment. Each Party agrees to cooperate with the other Party so that a Party's Site shall only be in compliance with FAA and FCC lighting requirements. 17. Miscellaneous a. This Agreement constitutes the entire agreement and understanding of the parties, and supersedes all offers, negotiations and other agreements. There are no representations or understandings of any kind not set forth herein. Any amendments to this Agreement must be in writing and duly approved and executed by both Parties. b. Every provision of this Agreement shall be valid and be enforced to the fullest extent permitted by law. If any provision of this Agreement, or the application of such provision to any person or circumstance, shall be determined by appropriate judicial authority to be illegal, invalid, or unenforceable to any extent, such provision shall, only to such extent, be deemed stricken from this Agreement as if never included. The remainder of this Agreement, and the application of such provision to persons or circumstances other than those as to which such provision is held illegal, invalid, or unenforceable, shall not be affected. c. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Florida, both substantive and remedial, without regard to principles of conflict of laws. The exclusive venue for any litigation arising out of this Agreement shall be Miami-Dade County, Florida, if in state court, and the U.S. District Court, Southern District of Florida, if in federal court. BY ENTERING INTO THIS AGREEMENT, MIAMI-DADE COUNTY AND THE CITY OF MIAMI BEACH EXPRESSLY WAIVE ANY RIGHTS EITHER PARTY MAY HAVE TO A TRIAL BY JURY OF ANY CIVIL LITIGATION RELATED TO, OR ARISING OUT OF, THIS AGREEMENT. d. All Riders and Exhibits annexed hereto form material parts of this Agreement. e. This Agreement may be executed in duplicate counterparts, each of which shall be considered an original, and all of which together shall constitute a single instrument. 8 Miami Beach Communications Equipment Space Use Agreement IN WITNESS WHEREOF, the parties hereto have caused this instrument to be executed by their respective officials thereunto duly authorized, all as of the day and year written above. ATTEST: By: Deputy Clerk Agreed to and Accepted by: ATTEST: By: Deputy Clerk ATTEST: MIAMI-DADE COUNTY By: ~ T ~c County Manager PUBLIC HEALTH TRUST President (tl CCU THE CITY OF MIAMI BEACH By: City Clerk By: Mayor Approved as to legal form And Sufficiency County Attorney Miami Beach Communications Equipment Space Use Agreement 9 APPROVED AS TO FORM 8~ LANGUAGE EXHIBIT A The Parkview Point Condominium site is located at the rooftop of the building that is located at 7441 Wayne Avenue, Miami Beach, FL 33141. The Council Towers site is located at the rooftop of the building that is located at 1040 Collins Avenue, Miami Beach, FL 33139. 10 Miami Beach Communications Equipment Space Use Agreement EXHIBIT B The Jackson Memorial Hospital site is located at the rooftop of the West Wing Building and its address is 1611 NW 12 Avenue, Miami, FL 33136. 11 Miami Beach Communications Equipment Space Use Agreement EXHIBIT C At the Parkview Plaza site, Miami-Dade County will be using half a rack of space in an existing equipment rack for installation of a UHF receiver and associated interface equipment. Miami-Dade County will install one SC320 FG whip antenna on the roof at a location to be mutually agreed with the City of Miami Beach. At the Council Towers site, Miami-Dade County will be using one rack of space for installation of an 800 MHz standalone repeater and associated interface equipment. Miami-Dade County will install one antenna on the roof at a location to be mutually agreed with the City of Miami Beach. 12 Miami Beach Communications Equipment Space Use Agreement EXHIBIT D At the Jackson Memorial Hospital site, the City of Miami Beach will provide three standard equipment racks to install 800 MHz radio communications equipment and associated interface equipment. The City of Miami Beach will install up to three rooftop antennas at locations mutually agreed with Miami-Dade County. The City of Miami Beach will need to add any needed electrical distribution at this site for their equipment. Miami Beach Communications Equipment Space Use Agreement 13 ~_