HomeMy WebLinkAboutDAS Facility Use Agreement between the CMB and Crown Castle Fiber, LLCDocusign Envelope ID: 25221313CA-6C72-4815-A3BE-6C81'C17F3C8E
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LICENSOR: City of Miami Beach,
a Florida Municipal Corporation
1700 Convention Center Drive
Miami Beach. Florida 33139
LICENSEE:
DATE OF EXECUTION:
Crown Castle Fiber, LLC
2000 Corporate Drive
Canonsburg, PA 15317
MAR 1 -1 2026
MAR 12 2026
CONVENTION CENTER DISTRIBUTED ANTENA SYSTEM ("DAS") USE AGREEMENT
Docusign Envelope ID: 2522BBCA-6C72-4815-A3BE-6C8FC17F3C8E
DAS FACILITY USE AGREEMENT
by and between
City of Miami Beach
and
Crown Castle Fiber LLC
Dated October 31, 2025
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Docusign Envelope ID: 2522BBCA-6C72-4815-A3BE-6C8FC17F3C8E
TABLE 0FCONTENTS
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2.
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3.
Term -------.----____.________,___________
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4.
Fees ....' ..' .......'..'...'.'...'.''.' ...'.—.'—.''..'....
..........-- 6-75.
Maintenance and Examination ofRecords; Reports;
Public Records Requests ...../
S.
Taxes/Licenses .� —'.-----------....'----'..
...---''--. 7
7.
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8.
Removal and Ra|ocoUonofA�anhnnwn�------------------..
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Insurance-,Cmsue�y---------------------------.
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10.
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12.
Default ---------------'-------~---------
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14.
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15
15iNobue-----------------------------------
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16.
ThaChynRightholerminatefonConvmnienoe-----------'-----.
15
17
Performance Bond orAlternate Security .............................................................
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18.
Licensee's Compliance with Public Records Law--.--.------.---..
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SCHEDULES:
Schedule Property
Schedule 2 Existing Agreements
Exhibit
Sample OASOrder
Exhibit Network Description
Exhibit 2 Node Equipment and Locations
Exhibit Hub Site
Exhibit Fiber Network
Exhibit
Notification ofRemoval byLicensee
Exhibit
Fiber Network Standards
Exhibit O
OAS Fiber Optics Test MOP
ExhibitE
Affidavit nfTrade Secret Certification
Exhibit
Anti -Human Trafficking Affidavit
Exhibit
Prohibition Against Contracting with Foreign Countries ofConcern
Affidavit
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Docusign Envelope ID: 25226BCA-6C724815-A3BE-6C8FC17F3C8E
DAS FACILITY USE AGREEMENT
THIS DAS FACILITY USE AGREEMENT (the "Agreement") is entered into on
2026 , with an effective date of October 31, 2025 ("Effective Date"), by
and between City of Miami Beach, a Florida municipal corporation (the "City"), and Crown Castle
Fiber LLC, a New York limited liability company, authorized to do business in Florida ("Licensee").
RECITALS
WHEREAS, the City is the owner of the property identified in Schedule 1 hereto, including certain
buildings and grounds and known as the Miami Beach Convention Center (the "Property"), which
Property includes buildings, utility infrastructure, signage, light standards, Fiber Network (if
applicable) and other improvements (herein "Structures"), and
WHEREAS, the City desires (i) to enhance the wireless communications services available at the
Property through a more comprehensive solution on the conditions agreed to herein; (ii) to rely
on the resources and experience of Licensee to manage access to the Property and the
Structures by the use of common facilities for all Wireless Carriers to minimize redundant use of
the Structures and minimize the visual impact thereon, and (iii) to avoid unnecessary disruption
and administrative burdens for the City's business and operations, and
WHEREAS, Licensee proposes to use a portion of certain City's Structures and the Property for
the purposes of creating, operating and maintaining a small cell wireless communications
network, including distributed antenna system ("DAS"), available for hire from Licensee by
Wireless Carriers for use on or about the Property; and
WHEREAS, the City is authorized to grant one or more licenses to Licensee to make Attachments
to the City's Structures and to occupy a certain portion of the Property in accordance with the
terms of this Agreement; and
NOW, THEREFORE, in consideration of the mutual covenants, terms and conditions
herein contained, the Parties hereto do hereby covenant and agree as follows:
AGREEMENT
1. Definitions. For all purposes of this Agreement, the following terms shall be defined as
follows:
a. Additional Services shall have the meaning set forth in Section 2.e.
b. Affiliate shall mean any entity which directly or indirectly controls, is controlled by
or is under common control with the referenced entity.
C. Agent shall mean any directors, trustees, officers, employees, affiliates, agents,
assigns, successors. representatives, contractors or subcontractors of a Party.
d. Agreement shall mean this DAS Facility Use Agreement and all DAS Orders
executed hereunder, each as amended.
e. Alternate Location shall have the meaning set forth in Section 8.b.
f. Approved Use shall have the meaning set forth in Section 2.
g. Attach shall mean to install, connect or construct Attachments on, at or in a
Structure pursuant to a DAS Order.
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Docusign Envelope ID: 2522BBCA-6C72-4815-A3BE-6C8FC17F3C8E
h. Attachments as used herein shall include antenna, wire, fiber optic,
telecommunications and/or coaxial cable, Nodes and other wireless
communications equipment attached and maintained upon a Structure pursuant to
a DAS Order.
i. Carrier Agreement shall mean a binding contractual commitment between
Licensee and a Wireless Carrier to utilize the System.
j. Carrier Fee shall have the meaning set forth in Section 4.c.
k. City Commission shall mean the governing and legislative body of the City.
I. City Manager shall mean the chief executive officer of the City.
M. Cure Period shall have the meaning set forth in Section 12.a.ii.
n. DAS Order shall have the meaning set forth in Section 2. "DAS Order" shall also
refer to amended DAS Orders.
o. Dedicated Fiber Network shall mean the portion of the Fiber Network which has
been identified and dedicated for Licensee's use through a DAS Order.
P. Effective Date shall mean the date set forth in the Preamble.
q. Environmental Law shall mean any Law regulating the presence of Hazardous
Materials on or relating to the Property, including the Solid Waste Disposal Act, 42
U.S.G. § 6901 et seq.; the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, 42 U.S.C. § 9601 et seq., as amended by
the Superfund Amendments and Reauthorization Act of 1986; the Federal Water
Pollution Control Act, 33 U.S.C. § 1251 et seq.; the Clean Air Act, 42 U.S.C. § 7401
et seq., the Toxic Substances Control Act, 15 U.S.C. § 2601 et seq.; the Safe
Drinking Water Act, 42 U.S.C. § 300f et seq.; or state, commonwealth or local Law
analogous thereto.
r. Existing Agreements shall mean the agreements identified in Schedule 2 hereto,
which affect the Property, including any agreements between a Wireless Carrier
and the City for the operation of Wireless Carrier facilities on the Property and any
Operating Agreements in full force and effect as of the Effective Date.
S. FCC shall have the meaning set forth in Section 8.e.
t. Fiber Network shall mean dark fiber capacity on the City's fiber optic network, or
related or unrelated conduit installed throughout the Property and owned by the
City.
U. Fiber Network Standards are set forth in Exhibit C hereto.
V. Force Majeure shall mean any event beyond the control of either Party and which
is relied upon by either Party as justification for delay in, or as excuse from
complying with, any obligation required of the Party under this Agreement,
including, but not limited to: (i) an act of God, war, terrorism, landslide, lightning,
earthquake, fire, explosion, storm, flood or similar occurrence; (ii) any act of any
federal, state, county or local court, administrative agency or governmental office
or body that stays, invalidates or otherwise affects this Agreement, the operation
of, or any permits or licenses associated with or related to, the obligations
hereunder; (iii) the adoption or change (including a change in interpretation or
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Docusign Envelope ID: 2522BBCA-6C72-4815-A3BE-6C8FC17F3C8E
enforcement) of any federal, state, county or local law, rule, permit, regulation or
ordinance after the date of execution of this Agreement, applicable to the
obligations hereunder, including, without limitation, such changes that have a
substantial or material adverse effect on the cost of performing the obligations
herein; (iv) any work stoppages, strikes, picketing, labor dispute, or similar
activities at the Property; (v) the institution of a legal or administrative action or
similar proceeding by any person or entity that delays or prevents any aspect of
the obligations to be performed by either Party hereunder.
W. GAAP shall have the meaning set forth in Section 5.a.
X. Government Authority shall mean the United States of America, the state,
commonwealth, tribal unit, county, parish, town, or other municipality in which the
Property is located and any governmental entity exercising executive, legislative,
judicial, regulatory or administrative functions of, over or pertaining to the System
or the Property.
y. Government Permits shall mean all certificates, permits or other approvals which
may be required from any Government Authority necessary for the construction
and operation of the System-
Z
. Hazardous Materials shall mean (i) any explosive or radioactive substances or
waste, petroleum or petroleum distillates, asbestos or asbestos -containing
materials, polychlorinated biphenyls, (ii) any 'hazardous substances,' 'extremely
hazardous substance,' 'hazardous chemical,''toxic chemical,' 'hazardous waste' or
'pollutant,' each as defined under Environmental Law, and (iii) any substance or
waste regulated under any Environmental Law.
aa. Hub Site shall mean the exterior or interior space licensed by the City to Licensee
and identified in a DAS Order: (i) for the installation of Licensee's equipment for
the operation and control of the System, and (ii) to be licensed to Wireless Carriers
for the placement and operation of their equipment required for use of the System.
bb. Initial Fee shall have the meaning set forth in Section 4.a.
cc. Laws shall mean any administrative, judicial, legislative or other statute, law,
ordinance, Government Permit, regulation, rule, order, decree, written
pronouncement, writ, award or decision of any Government Authority.
dd. Licensee's Fiber shall have the meaning set forth in Section 7.b.
ee. Licensed Structure shall mean a Structure upon which an Attachment has been
made, pursuant to the Parties' mutual agreement, execution and delivery of a DAS
Order, and is maintained thereupon by Licensee pursuant to this Agreement.
ff. Licensee shall have the meaning set forth in the Preamble.
gg. MBCC Renovations shall have the meaning set forth in Section 7.a.
hh. Node shall mean a radio access node of the System, generally consisting of an
antenna, equipment box, cabling connecting the antenna and equipment box and
related attachments.
Objectives shall have the meaning set forth in Section 2.e.
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Docusign Envelope ID: 2522BBCA-6C72-4815-A3BE-6C8FC17F3C8E
jj. Operating Agreement(s) shall mean any management agreement which may be
executed from time to time between the City and a managing entity in connection
with the management and operation of the Property. Licensee acknowledges that
the managing entity, as Agent of the City, and among other responsibilities, may
enter into agreements with third parties relating to the operation and use of the
Property; however, said managing entity shall not have authority to execute
agreements in connection with the Approved Use, which contracting authority has
been delegated to Licensee pursuant to this Agreement. The Operating Agreement
in existence as of the Effective Date of this Agreement, identified in Schedule 2, a
copy of which has been provided to Licensee prior to the Effective Date.
kk. Parties or Party shall mean the City and Licensee.
11. Person shall mean any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, limited liability company, unincorporated
organization or government or any agency or political subdivision thereof.
mm. Primary Purpose shall have the meaning set forth on Schedule 1 hereto.
nn. Property shall have the meaning set forth in the Recitals.
oo. Proposal -,hall have the meaning set forth in Section 2.e.
pp. Radio Space shall be the locations on, in or at a Licensed Structure to be occupied
by any Attachments for the operation of the System, including the Hub Site space.
qq. Recurring Fee shall have the meaning set forth in Section 4.b.
rr. Report shall have the meaning set forth in Section 5.b.
ss. Revenue Share Reimbursement shall mean any capital contribution, whether
recurring or non -recurring, which may (or may not) be paid by a Wireless Carrier
to Licensee, at any time, to cover construction or installation costs of the System.
The Revenue Share Reimbursement is separate from the Recurring Fee paid by
Licensee to the City. For the avoidance of doubt, the City shall not receive any
portion of the Revenue Share Reimbursement from Licensee.
tt. RF shall mean radio frequency energy, whether or not associated with operation
of the System.
uu. Structure Manager means the City's designated manager (as designated in writing
by the City Manager) for managing and administering, on behalf of the City, the
Attachments, System and administration of visual impact and aesthetics provisions
of this Agreement.
VV. Structures shall have the meaning set forth in the Recitals
ww. System shall mean collectively the small cell network, including DAS, constructed
by Licensee under a DAS Order for the purpose of providing RF coverage on or
about the Property, including Licensee's System equipment at the Radio Space
and all Attachments, power lines, coaxial, fiber optic and telecommunications
cables and other associated equipment, including equipment owned and operated
by Wireless Carriers, located at a Radio Space throughout the Property and at the
Hub Site and operated by Licensee on a commercial, for -profit basis to provide
services to Wireless Carriers for use on or about the Property.
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Docusign Envelope ID: 2522BBCA-6C72-4815-A3BE-6C8FC17F3C8E
xx. Term shall have the meaning set forth in Section 3.
yy. Term Commencement Date shall mean the Effective Date.
zz. The City shall have the meaning set forth in the Preamble.
aaa. Threshold Wireless Carrier shall have the meaning set forth in Section 7.
bbb. Unapproved Use shall have the meaning set forth in Section 2.
ccc. Wireless Carrier shall mean a wireless services provider offering communications
services to the public, including commercial mobile radio service (CMRS), cellular,
personal communications service (PCS), wireless broadband, telematics and
wireless data carriers. The City shall not be considered a Wireless Carrier to the
extent it provides any such services for its own internal use.
2. Grant of License. On the terms set forth in this Agreement and from time to time upon
the Parties' mutual agreement, execution and delivery of a DAS Order substantially in the form
attached to this Agreement as Exhibit A (a "DAS Order"), the City will grant to Licensee, and
Licensee will receive from the City a license to use: (a) the Radio Space described therein and
(b) if applicable, the Fiber Network in the quantity and length identified in such DAS Order. The
City agrees, subject to the conditions in this Agreement, that, by way of the DAS Order, it will
permit Licensee, at Licensee's sole cost, (i) to place, operate and maintain Attachments within the
Radio Space on Licensed Structures in order to operate its System, and (ii) if applicable, to use
the Fiber Network as a transmission medium to provide communication services and lit fiber
transport capacity as appropriate for the operation of the System. Licensee agrees that its
Attachments will be used only in connection with Licensee's construction, operation and
maintenance of the System, in connection with the service Licensee is providing pursuant to this
Agreement (the "Approved use"), and not in connection with providing any services not otherwise
described herein ("Unapproved Use"). Licensee's use of the Radio Space or Licensed Structure
for an Unapproved Use shall be considered a material default under this Agreement, and should
Licensee fail to cure said default in accordance with Section 12 herein, the City shall be entitled
to seek the remedies prescribed in Section 12 herein. Additionally, notwithstanding any other
terms of this Agreement, the City shall be entitled to seek immediate relief, whether at law or
equity, to restrain such Unapproved Use. The City reserves the right to withhold consent to any
DAS Order which the City, in its sole but reasonable discretion, deems will conflict with the Primary
Purpose of the Property, is contrary to the terms of this Agreement, affects the aesthetics of the
Property, or will have a detrimental effect upon the health, safety or welfare of the community.
a. System Additions. Licensee shall have the right to (i) attach to any additional
Structure: or (ii) add additional Attachments to any Structure; and, if applicable, use additional
portions of the Fiber Network, upon the Parties' execution of a mutually acceptable amended DAS
Order. Subject to the terms and conditions of this Agreement including, without limitation, Sections
2.b. 2.e and 2.f, Licensee shall have exclusive right to the use of the Licensed Structures for the
purpose of operating the System on the Property.
b. Limitations/Subordination of Interest. Notwithstanding anything to the contrary
contained in this Agreement, Licensee expressly recognizes that the Structures are used and are
to continue to be used by the City for the Primary Purpose, and that Attachments are and will
continue to be secondary and subordinate to the City's use of its Structures for its Primary
Purpose. Regardless of its duration, Licensee's use of the Radio Space and the Licensed
Structures shall not vest in Licensee any ownership rights in the Radio Space or Licensed
Structures. In addition to the Existing Agreements with Wireless Carriers, as identified in Schedule
2 hereto, the right to Attach herein granted shall at all times be subject to any pre-existing or on -
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going contracts and arrangements (including Operating Agreements in connection with the
management and operation of the Property for its Primary Purpose), written notice of which the
City shall endeavor to provide to Licensee in advance of the Parties' executing a DAS Order At
any time during the Term, Licensee may request, in writing, that the City provide Licensee with
written confirmation as to any Operating Agreement or other agreement in effect that impacts or
potentially impacts Licensee's System or rights granted herein. The current Operating Agreement
for the Property is described in Schedule 2 hereto. Nothing herein contained shall be construed
to compel the City to maintain any of its Structures for a period longer than is necessary for its
Primary Purpose.
C. Consents. The City represents, upon execution of a resolution authorizing the
Agreement, that it is authorized to grant to Licensee the right to Attach, and that the City has
authorized the Structure Manager to grant DAS Orders on its behalf consistent with the terms of
this Agreement. No consent or approval of any third party is necessary for The City to execute
this Agreement or perform the obligations hereunder for the Term of this Agreement. Licensee will
be responsible at its expense for securing all Government Permits necessary for the installation
and operation of the System.
d. Exclusive Marketing Rights. The City hereby designates Licensee as the point
of contact regarding discussions and dealings with Wireless Carriers in connection with their
wircicGs� tciccommunication needs at the Property, including siting, installation, development, use
and management thereof, whether by distributed antenna system, rooftop, tower or otherwise.
The City shall require all Wireless Carriers requesting use of, or expressing an interest in using,
the Property to provide wireless telecommunications service thereon to consult with Licensee and
grants to Licensee the right to negotiate on the City's behalf with all Wireless Carriers in this
regard. During the Term, except as provided in Section 2.e below, the City shall not grant a lease,
license or similar agreement to any Wireless Carrier or commercial wireless infrastructure
provider for the purposes of installing wireless telecommunications infrastructure at the Property.
Notwithstanding the foregoing, neither the City nor its managing entity, pursuant to an Operating
Agreement, shall be precluded from using the Fiber Network (excluding the Dedicated Fiber
Network), and the Radio Space (as needed and subject to the provisions of Section 2.f) for its
Primary Purpose.
e. System Expansion. The City and Licensee acknowledge and agree that
increased demand, changes or advances in wireless technology, among other reasons, during
the Term may cause the City or Wireless Carriers to desire expansion of the System or the
provision of additional wireless network coverage or capacity on the Property (collectively,
"Additional Services"), and Licensee shall have the exclusive right to provide the Additional
Services, as set forth herein. In the event Additional Services are desired by the City, the City
shall provide Licensee with a written request for Additional Services, setting forth its coverage,
technology and other objectives (the "Objectives"). Licensee shall provide a written proposal
("Proposal") for the provision of Additional Services within ninety (90) days following receipt of
such Objectives from the City. In the event a Wireless Carrier desires Additional Services.
Licensee shall provide a Proposal to the City for review. In the event that the City accepts
Licensee's Proposal (as may be modified by mutual consent), the Parties agree to execute a
mutually acceptable amended DAS Order. In the event that (i) Licensee declines to provide the
Additional Services, or (ii) following good faith negotiations, the City and Licensee cannot reach
agreement on the provision of Additional Services within one hundred eighty (180) days following
delivery of Licensee's Proposal, then the City shall be free to enter into agreements with any third
party for Additional Services but subject to Objectives substantially similar to those set forth in the
original request. Notwithstanding the provisions of this Section, the City shall have no obligation
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whatsoever to allow any Additional Services and Licensee shall have no obligation to effect or
right to require such expansion.
f. City's Use of Radio Space. Should the City need to use the Radio Space,
Licensee shall use commercially reasonable efforts to accommodate requests for adding
communications systems equipment or other equipment to any area within the Radio Space, as
may be necessary, subject to space availability, capacity and the rights of any then -existing
Wireless Carriers and at the City's sole cost and expense.
3. Term. This Agreement shall commence on the Effective Date and shall continue in effect
for a period of nine (9) years and three hundred sixty-four (364) days (the "Term") unless
previously terminated pursuant to the provisions herein; each DAS Order will commence on the
"Order Effective Date" set forth thereon. The term of any DAS Order shall, unless previously
terminated pursuant to the provisions of this Agreement, continue in effect until the end of the
Term and the term of this Agreement shall be incorporated into each such DAS Order.
4. Fees. In consideration for the City's entering into this Agreement and granting the DAS
Orders to Licensee throughout the Term, Licensee shall provide the following consideration to the
City:
a. Initial Fee. Licensee shall make an initial payment to the City of Twenty -Five
Thousand Dollars ($25,000) ("Initial Fee") due and payable within thirty (30) days following the
Effective Date.
b. Recurring Fee. In consideration for: (i) Licensee's constructing the System at its
sole cost and expense to provide wireless coverage to the City, its employees, invitees and guests
on and about the Property; (ii) Licensee's marketing the System to Wireless Carriers in order to
increase the number of Wireless Carriers providing coverage to the Property, (iii) Licensee's
deploying neutral host technology to reduce the visual impact, consumption of Attachment space
and limit the disruption to the City's Primary Purpose; and (iv) Licensee's serving as the manager
and single point of contact for Wireless Carriers in connection with their telecommunication needs
on the Property, including siting, installation, development, use or management of the System,
Licensee shall be entitled to bill and keep all revenues of the System, and shall remit to City an
amount equal to twenty- five percent (25%) of monthly recurring gross receipts collected by
Licensee from Wireless Carriers for use of the System, excluding any reimbursement for taxes,
construction or installation costs, or other expenses incurred by Licensee (including Revenue
Share Reimbursements) which are billed to the Wireless Carriers (the "Recurring Fee"). Licensee
shall pay the Recurring Fee to the City on a monthly basis, no later than five (5) days from the
end of each calendar month for which the Recurring Fee is due, along with the monthly statement,
in a form reasonably acceptable to the City Manager or Structure Manager, which may include
delineating the recurring gross receipts identifying each Wireless Carrier and the amount of
recurring gross receipts each Wireless Carrier paid to Licensee for its use of the System, as well
as the calculation of the Recurring Fee. The City Manager or Structure Manager shall provide
Licensee with written payment instructions if the payment address is different from the City's
notice address in Section 15.
C. Carrier Fee. In addition to the Initial Fee and Recurring Fee, within thirty (30) days
after the date each Carrier Agreement is fully executed, Licensee shall pay to the City the amount
of Twenty -Five Thousand Dollars ($25,000) ("Carrier Fee"),
5. Maintenance and Examination of Records; Reports; Public Records Requests.
a. Maintenance and Examination of Records. Licensee will keep and maintain
adequate auditable records and supporting documentation applicable to all of the services, work,
information, income, expense, costs, invoices and materials provided and work performed relating
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to this Agreement. Said records and documentation shall be kept in accord with generally
accepted accounting practices ("GAAP") and will be retained by Licensee in accord with the
records retention periods designated by the Florida Public Records Act, Chapter 119, Florida
Statutes, from the date of expiration or termination of this Agreement, or for such period as
required by Law. Licensee shall make all the information herein described available to the City
and its Agents in the Miami, Florida office of Licensee.
The City and its authorized Agents shall, with reasonable prior notice, have the right to audit,
inspect and copy all such records and documentation no more than two (2) times per calendar
year during the Term of this Agreement and during the period as set forth in the paragraph above,
provided, however, such activity shall be conducted only during normal business hours of
Licensee and at the expense of the City.
b. Reports. No later than April 30th of each year during the Term, Licensee shall
provide the City an annual report in a form consistent with GAAP relating to this Agreement for
the previous calendar year showing: (1) all gross revenues received pursuant to this Agreement
(including carrier sub -license recurring gross receipts, financial and in -kind concessions, and
other sources; (2) start dates for each Wireless Carrier's use of the System, and (3) a final
reconciliation of all payments.
The Parties will ronppratp in 9nnri faith to (i) rpgolvp any discrepancies between the. fees paid to
the City and those calculated by the Report or audit to be due to the City and (ii) determine the
method that any overpayment of fees will be refunded to Licensee or (B) any underpayment of
fees will be made to the City (including payment by check or temporary abatement, increase or
decrease in the Recurring Fees otherwise due) within thirty (30) days of receipt of such invoice
and the final audit report. If a dispute is identified within said thirty (30) day period and the Parties
cannot reach an agreement within ninety (90) days, the Party owed the fees may send the other
Party a monetary default notification, as set forth in Section 12.a.i or 12.f as the case may be.
6. Taxes/Licenses. Licensee agrees to and shall pay before delinquency all taxes and
assessments of any kind assessed or levied upon Licensee by reason of this Agreement or by
reason of the business or other activities and operations of Licensee at the Property. The City
shall continue to pay all real estate taxes assessed upon the Property. Licensee agrees to
reimburse the City for any increase in the current real estate tax bill for the Property (currently
included in Folio No. 02-3227-000-0090), which is documented to relate to property taxes and/or
assessments levied or assessed upon the Licensed Structure and/or the System, or by reason of
Licensee's services pursuant to this Agreement. Licensee will have the right, at its own expense,
to contest the amount or validity, in whole or in part, of any tax by appropriate proceedings timely
and diligently conducted in good faith. Licensee may refrain from paying a tax to the extent it is
contesting the imposition of same in a manner that is in accordance with law. However, if, as a
result of such contest, additional delinquency charges become due, Licensee shall be responsible
for such delinquency charges, in addition to payment of the contested tax, if so ordered.
Licensee shall also be solely responsible (at its sole cost and expense) for obtaining and
maintaining current any applicable licenses or permits, as required for the services contemplated
in this Agreement including, without limitation, any occupational licenses required by Law for the
proposed uses contemplated herein (if required).
7. Construction and Operation of the System. Licensee will not commence any future
constructions or upgrades of the System without prior approval by the City Manager, additionally
the Licensee cannot commence any future construction or upgrades of the System until it receives
a binding contractual commitment from at least one (1) Wireless Carrier to use the System
("Threshold Wireless Carrier"). If Licensee is to construct or upgrade the System, it will do so at
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the Property at its sole cost and expense, as set forth in the approved DAS Order, and in
accordance with the following:
a. Miami Beach Construction Project/City's Fiber Network. The City is in the
process of making renovations to the Property (the "MBCC Renovations"). As part of the MBCC
Renovations, the City is installing its Fiber Network throughout the Property. The Parties agree
that Licensee will connect to the Fiber Network between the demark and the telecom rooms. The
Fiber Network shall remain the City's personal property to maintain, own and repair at all times
throughout the Term.
b. Licensee's Work/Licensee's Fiber. As part of the work to be performed in
connection with the installation of the System pursuant to this Agreement, Licensee shall: {I) bring
all of its own fiber and reductant circuits in order to connect Licensee's System at the Property's
demark; (2) install the head end DAS equipment at the demark; (3) use the Fiber Network to
connect between the demark and the telecom rooms, and (4) run fiber or other cable from the
telecom rooms to Licensee's network of antennae that form the DAS. Pursuant to an approved
DAS Order, Licensee shall have the right to install and maintain Licensee Fiber as required in
Licensee's sole discretion to operate the System. All fiber installed by Licensee as described in
this Section 7.b (excluding the Fiber Network) shall be owned, maintained and repaired by
Licensee ("Licensee's Fiber").
C. Permits and Restoration. Licensee shall comply with the City's regulatory
requirements as to the construction of any improvements under this Agreement, including
securing all required permits. No improvements shall be constructed and/or maintained on the
Radio Space without the City's prior written approval of plans and specifications (in the City's
proprietary capacity), which shall include review of the aesthetic and visual nature of the System,
and the effect of the System upon the safety and functionality of the Property. The City (in its
proprietary capacity) shall endeavor to approve or request changes to the plans and specifications
within thirty (30) days of receipt of such plans. In connection with any construction work, Licensee
shall restore the Radio Space and any surrounding areas of the Property disturbed by Licensee
or its Agents to the City's standards. Licensee shall coordinate the scheduling and timing of the
construction work with the City to avoid any disruption to the public or to any planned activities at
the Property.
d. Construction Bond. Licensee shall furnish a construction bond of not less than
100% of the construction cost of the System. Licensee shall furnish construction cost estimates
prior to commencement of construction of the System.
e. Standard of Care. Licensee, at its sole cost, shall construct and maintain all
Attachments in a safe condition in accordance with applicable Laws, industry standards, in a good
workmanlike manner and according to the plans and specifications attached to the DAS Order or
amended DAS Order, as the case may be. No work shall be done by Licensee when there is
reason to suspect that working conditions on a Structure may be hazardous as the result of
weather or any other conditions. As promptly as possible following Licensee's completion of the
System, Licensee will provide the City with as -built drawings showing the location of the
Attachments, including Node and Hub Site locations and equipment layout and the Parties will
amend the DAS Order as appropriate to incorporate such drawings.
f. Contact. Licensee shall respond on a 24/7 basis to any reasonable problems,
repairs or emergencies reported by the Structure Manager via contact to Licensee's network
operations center at (888) 632-0931.
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g. The City's Liability. The City reserves the right to maintain the Structures as
necessary to fulfill its Primary Purpose. The City shall not be liable to Licensee for any interruption
of service for the System or for any property of the City used by Licensee. Licensee specifically
waives any claim for indirect, special, consequential or punitive damages against the City in
connection with this Agreement, including any claims for loss or interruption of service.
h. Licensee Liability. Licensee shall exercise reasonable caution in performing the
activities covered by this Agreement to avoid damage to the Structures. Licensee hereby agrees
to reimburse the City for any direct costs incurred in making repairs to any Property damaged by
Licensee. Licensee shall promptly advise the City of all incidents and claims arising or alleged to
have arisen in any manner by Licensee's activities upon the Property. The City specifically waives
any claim for indirect, special, consequential or punitive damages against Licensee in connection
with this Agreement, including any claims for loss or interruption of service.
i. Utilities. In the event that Licensee requires an electric supply different from the
power currently existing at the Property, Licensee shall pay for the cost of installing such power
supply facilities and any such separate meters which may be required by the City. The City shall
allow Licensee to access its existing electrical power and will provide, at no cost to Licensee or
the Wireless Carriers, the electricity power to operate the Node equipment so long as such
consumption does not require greater than 20-amp circuit per Node. Any electricity used by
Licensee for the Hub Site ur foi Nudeb iu excess of that set rurth in the precediny sentence shall
be paid by Licensee. Such costs shall be billed monthly by the City to Licensee, with reasonable
supporting documentation of such utility consumption, and shall be paid by Licensee within thirty
(30) days of receipt of such invoice. Licensee agrees to pay for utilities based on (i) sub -metering
equipment at the Hub Site, to be installed by Licensee at its cost; (ii) estimated usage for each
Node, based on equipment specifications and spot measurements, or (iii) as otherwise agreed
between the Parties. At the City's discretion, Licensee may be required to install the sub -meters
at locations designated by the City.
j. Hazardous Materials. Licensee's right to use the Radio Space is strictly on an "as
is" basis with all faults. Licensee shall not cause or permit the escape, disposal or release of any
Hazardous Materials on or from the Property in any manner prohibited by Law. Licensee shall
indemnify and hold the City harmless from any loss, damage, cost, or expense of the City,
including, without limitation, reasonable attorney's fees, incurred as a result of, arising from, or
connected with the placement by Licensee of any "hazardous substance" or "petroleum products"
on, under, in or upon the Property (including, without limitation, the Licensed Structures), as those
terms are defined by applicable Laws; provided, however, that Licensee shall have no liability in
the event of the willful misconduct or negligence of the City, its agents, servants or employees.
The provisions of this subsection shall survive the termination or earlier expiration of this
Agreement.
k. Fiber Network Maintenance and Operation. Licensee shall maintain and
operate, at its sole cost and expense, Licensee's Fiber in accordance with the Fiber Network
Standards. Licensee will, at its sole cost and expense, perform routine maintenance and repair
checks and services, including regularly scheduled preventative inspections, as necessary to
maintain Licensee's Fiber in good working order and with the same care standard as Licensee
treats its own fiber, but in no event with less than reasonable care. When Licensee or Licensee's
Agents perform any routine maintenance on Licensee's Fiber, Licensee will notify the City at least
seven (7) days before any such maintenance. Maintenance which is reasonably expected to
produce any signal discontinuity will be coordinated between the Parties. Licensee will make all
reasonable efforts to schedule major system work, such as fiber rolls and hot cuts, between 2:00
a.m. and 6:00 a.m. local time. In the event Licensee fails to meet the Fiber Network Standards,
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the City, at its discretion, and without an obligation, may make any necessary repairs at its own
expense and shall receive reimbursement from Licensee for its costs incurred. The Fiber Network
demarcation points will be easily accessible fiber access points to be mutually agreed upon after
site walks.
The City shall maintain and operate, at its sole cost, the Fiber Network and the Dedicated Fiber
Network in accordance with the Fiber Network Standards. The City will, at its sole cost and
expense, perform routine maintenance and repair checks and services, including regularly
scheduled preventative inspections, as necessary to maintain the Fiber Network and the
Dedicated Fiber Network in good working order and with the same care standard as the City treats
its own fiber, but in no event with less than reasonable care. When the City or the City's Agents
perform any routine maintenance on the Fiber Network and the Dedicated Fiber Network, the City
will notify Licensee at least seven (7) days before any such maintenance. Maintenance which is
reasonably expected to produce any signal discontinuity will be coordinated between the Parties.
The City will make all reasonable efforts to schedule major system work, such as fiber rolls and
hot cuts, between 2:00 a.m. and 6:00 a.m. local time.
8. Removal and Relocation of Attachments. Without limiting or terminating the Term of the
Agreement, specific DAS Orders may be amended without fault to either Party upon the following
conditions:
a. Amendment by Licensee. Licensee may amend a DAS Order as to any Structure
by removing its Attachments therefrom if, in its reasonable business judgment: (i) such removal
will not materially degrade the RF coverage on the Property; or (ii) the Attachment being removed
is to be relocated pursuant to a DAS Order amendment. At least thirty (30) days prior to removal,
Licensee shall give The City notice of such removal substantially in the form attached hereto as
Exhibit B hereto and the Parties will execute an amended DAS Order.
b. Relocation by the City. The City may request that Licensee remove and relocate
any Attachment if the City, in support of its Primary Purpose, at its discretion, intends to remove
or alter the Structure supporting such Attachment so that it is unable to support the Attachment.
In order to require such removal and relocation, the City must: (i) provide at least sixty (60) days'
written notice prior to the date of the proposed removal and relocation of any Attachment; (ii)
propose a reasonable alternative location for such Attachment acceptable to Licensee (the
"Alternate Location"); (iii) grant I icensee at least sixty (60) days following receipt of all necessary
Government Permits (but at least one hundred twenty (120) days for removal and relocation of
the Hub Site) to complete the removal and relocation; and (iv) provide, at Licensee's expense, an
installation -ready location acceptable to Licensee for Licensee's Attachment, including the
construction or modification of Structures to accommodate such'Attachment and any necessary
extension of the Fiber Network (as applicable) to serve the location. In the event Licensee accepts
the Alternate Location, the City and Licensee shall execute an amended DAS Order before the
Attachment removal and relocation commences. Licensee shall be responsible for the costs of
removing and relocating the Attachment.
C. Relocation by Licensee. Licensee shall not change the location of its
Attachments without the written consent of the City, except in cases of emergency when verbal
authorization would be sufficient. In cases of emergency, Licensee shall procure the City's
consent orally by contacting the Structure Manager and such request and consent may be
confirmed in writing by Licensee and approved in writing by the City once the emergency has
been resolved. Any relocation, at the request of Licensee, and which has been approved in writing
by the City, shall be undertaken by Licensee, at its sole cost and expense.
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d. Conflict with Laws. Upon written notice from the City to Licensee that the use of
any Structure is forbidden by Law, the DAS Order to Attach to such Structure shall immediately
be amended and the Attachments of Licensee shall be removed by Licensee from the affected
Structures, provided, however, that Licensee, with the City's reasonable assistance, may contest
such adverse decision in good faith, and during the pendency of such challenge may maintain
such Attachment to the extent allowed by Government Authorities. The City will cooperate with
Licensee to identify a suitable Alternative Location, in which case the Attachment shall be
relocated in accordance with the process set forth in Section 8.b above.
e. Interference. All operations by Licensee shall be in compliance with all applicable
requirements of the Federal Communications Commission ("FCC"), as well as other applicable
Laws. Licensee shall operate the System in a manner that will not cause harmful interference,
including, without limitation to (1) other licensees, provided that the installations of such licensees'
improvements predate that of the Licensed Structures, (2) the public safety communication
system used by the City and other local agencies for public safety purposes, and (3) with
communications systems operated by City, regardless of when such systems are installed or their
use commences, provided that such systems are operated in accordance with all applicable FCC
rules and regulations as well as other applicable Laws.
In the event that the Licensed Structure causes harmful interference with City's public safety
communications system , and such interference is not cured within forty-eight Hours after
Licensee's receipt of an emergency telephone call from City, which telephone call will be followed
by written notice, Licensee shall, if directed by the City, cease operation of the Licensed Structure
until Licensee is able to cure and eliminate the interference to the satisfaction of the City. Licensee
acknowledges that it may be necessary for Licensee to relocate the interfering Attachment or
redesign the Licensed Structure to eliminate such interference: and City shall reasonably consider
relocation sites in such event. In the event that Licensee refuses to or is unable to eliminate the
interference within fifteen (15) days from the date of notice of the interference (whether or not
operation of the Licensed Structures have ceased operation at the direction of the City as
described above) the City shall have the right, at no cost to the City and upon ten (10) days written
notice, to terminate the portion of the DAS Order causing such interference and thereafter
Licensee shall remove the specific Attachment proven to be the cause of such interference and
restore the City's Property in accordance with Section 12A herein. The Parties agree to cooperate
in developing solutions to interference problems, including determining which design changes
may be necessary to mitigate the interference. If relocation or redesign is deemed necessary by
the City due to harmful interference with the City's communications caused by Licensee, Licensee
shall redesign or relocate any or all of the Licensed Structures to alternative locations approved
by the City, at Licensee's sole cost and expense, or if such redesign or relocation is not acceptable
to Licensee, Licensee may terminate that portion of the DAS Order causing such interference.
9. Insurance: Casualty. Licensee shall carry insurance at its sole cost and expense to protect
the Parties from risk arising out of placement of the Attachments on the Structures and use of the
Radio Space. Licensee shall provide the specified insurance throughout the Term and shall file
with the City's designated risk manager certificates of insurance evidencing such coverage upon
request. Certificates, policies or endorsements shall provide thirty (30) days' prior written notice
of cancellation, except for non-payment of premiums to the City. Licensee shall provide written
notice of cancellation for non-payment within two (2) business days upon receipt of any such
notice.
a. Coverage Amounts. Throughout the Term, Licensee shall maintain the following
insurance coverage from a carrier licensed to conduct business in the state where the Property
is located:
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Worker's compensation insurance as required by Florida, with Statutory
limits and Employer's Liability Insurance with limit of no less than
$1,000,000, per accident for bodily injury or disease.
Commercial general liability insurance including personal injury,
contractual liability, independent contractors and broad form property
damage with the following minimum liability limits: (i) $1,000,000 per
occurrence combined single limit; (ii) $2,000,000 general aggregate: and
(iii) $3,000,000 umbrella liability, with an endorsement stating the City and
any manager of the Property is an additional insured with respect to
operations relating to this Agreement.
iii. Commercial automobile liability insurance with a minimum liability limit of
$1,000,000 per occurrence combined single limit.
iv. Property Insurance against all risks of loss to any part of the System, at full
replacement cost with no coinsurance penalty provision.
b. Waiver of Claims and Rights of Subrogation. The Parties hereby waive any and
all rights of action for negligence against the other on account of damage to the System, to the
Property or to any Attachment resulting from any fire or other casualty of the kind covered by
property insurance policies with extended coverage, regardless of whether or not, or in what
amount, such insurance is carried by the Parties. All policies of property insurance carried by
either Party for the System, Property or the Attachments shall include a clause or endorsement
denying to the insurer rights by way of subrogation against the other party to the extent rights
have been waived by the insured before the occurrence of injury or loss.
C. Casualty and Restoration. In the event that one or more of the Structures
containing an Attachment is damaged or destroyed as a result of a casualty, such that it cannot
be used for an Attachment, then within thirty (30) days of such damage or destruction the City
shall notify Licensee of its intent, in its sole discretion, as to whether or not the City will repair the
Structure, and if so, then the proposed schedule for such repair. Licensee will have the option to:
(i) in the event the repair schedule is proposed to be less than ninety (90) days, to abate any or
all fees charged to Wireless Carriers under the Carrier Agreement with respect to the affected
Attachments during the period the Structure is not available, (ii) in the event the City chooses not
to repair, or if the repair schedule is proposed to be greater than ninety (90) days, declare the
DAS Order null and void with respect to the affected Attachments only and thereafter neither Party
will have any liability or obligation hereunder for each such Attachments, in which event there
shall be an amendment to the DAS Order; or (iii) in the event the City chooses not to repair, or if
the repair schedule is proposed to be greater than ninety (90) days, with respect to damage which
will prevent continued operation of the Hub Site or the System in Licensee's reasonable discretion,
to terminate the affected DAS Order, with neither Party having any liability or obligation hereunder
for each such Attachment. The Parties may also agree to relocate the impacted Attachment(s)
pursuant to mutually acceptable terms. Notwithstanding the foregoing, any damage to the
Attachments, or the cost of any agreed upon relocation of the Attachments under this section shall
be the responsibility of the Licensee, at its cost and expense.
d. Acceptability of Insurers. Insurance is to be placed with insurers with a current
A.M. Best's rating of no less than A:VII, unless otherwise acceptable to the City's Risk
Management Office.
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e. Verification of Coverage. Within ten (10) calendar days following the Effective
Date, Licensee shall provide to the City certificates of insurance evidencing that Licensee has the
required commercial general liability insurance required of Licensee under this Agreement.
f. Special Risks or Circumstances. The City reserves the right to reasonably
modify these requirements, including limits, based on the nature of the risk, prior experience,
insurer, coverage, or other special circumstances.
g. Certificate Holder: City of Miami Beach
c/o Insurance Tracking Services
1700 Convention Center Drive
Miami Beach, FL 33139
h. Compliance. Compliance with the foregoing requirements shall not relieve
Licensee of its liability and obligation under this section or under any other section of this
Agreement. If Licensee fails to secure the insurance coverages required under this Section 9
within five (5) days from receipt of written notice, the City shall have the right to pursue any and
all default remedies as set forth in Section 12.a.iv.
10. Indemnity. In consideration of a separate and specific consideration of Ten Dollars
(1510.00) and other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Licensee shall indemnify, hold harmless and defend the City, its officials,
directors, members, employees, contractors, Agents, and servants from and against any and all
actions (whether at law or inequity), claims, liabilities, losses, and expenses, including, but not
limited to, attorneys' fees and costs, for personal, economic or bodily injury, wrongful death, loss
of or damage to the Property, which may arise or be alleged to have arisen from: (1) wholly or in
part from the negligent acts, errors, omissions or other misconduct of Licensee, its officers,
director, members, employees, Agents, contractors, subcontractors, or any other person or entity
acting under Licensee's control or supervision, (2) Licensee's breach of the terms of this
Agreement or its representations and warranties herein; (3) Licensee's operations under this
Agreement: or (4) the use of the Licensed Structure by Licensee, except to the extent that such
claims are caused by the gross negligence or willful misconduct of the City. To that extent,
Licensee shall pay all such claims and losses and shall pay all such costs and judgments which
may issue from any lawsuit arising from such claims and losses.
11. Eminent Domain. If the City receives notice of a proposed taking by eminent domain (or
any agreement in lieu of condemnation) of any part of the Property impacting any Attachment, the
City will notify Licensee of the proposed taking within thirty (30) days of receiving such notice and
Licensee will have the option to: (i) declare the DAS Order null and void with respect to the
affected Attachments only and thereafter neither Party will have any liability or obligation
hereunder for each such Attachment, in which event there shall be an amendment to the DAS
Order and, if appropriate, an equitable adjustment in Recurring Fees on account of the portion so
taken, or (ii) with respect to a taking which will prevent continued operation of the Hub Site or the
System, either Party may terminate the affected DAS Order. The Parties may also agree to
relocate the impacted Attachment(s) pursuant to mutually acceptable terms.
12. Default.
a. Default by Licensee. In the event of default by Licensee with respect to any of the
provisions or obligations of this Agreement, the City shall give Licensee written notice of such
default. The following events shall constitute "Events of Default":
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i. After receipt of such written notice, Licensee shall have fifteen (15) days in which
to cure any monetary default;
ii. Unless otherwise provided in the Agreement, after receipt of such written notice,
Licensee shall have thirty (30) days in which to cure any non -monetary default.
Licensee shall have such extended periods as may be required beyond the thirty
(30) day cure period to cure any non -monetary default if the nature of the cure is
such that it reasonably requires more than thirty (30) days to cure, so long as
Licensee commences the cure within the thirty (30) day period and thereafter
continuously and diligently pursues the cure to completion; however, such cure
period shall never exceed ninety (90) days (the "Cure Period");
iii. If Licensee files a voluntary petition in bankruptcy, or has an involuntary petition
filed against it and such petition is not dismissed within ninety (90) days, is
adjudicated bankruptcy or insolvent, or files any petition or answer seeking or
acquiescing in any reorganization, arrangement, composition readjustment,
liquidation, dissolution or similar relief under any present or future Law relating to
bankruptcy, insolvency or other relief for debtors, or seeks or consent to or
acquiesces in the appointment of any trustee, receiver, custodian, liquidator, or
makes any general assignment for the benefit of creditors,
iv. The City may not maintain any action or effect any remedies for default against
Licensee unless and until Licensee has failed to cure the same within the time
periods provided in this section. In the event that Licensee fails to cure the default
as provided herein, the City may immediately, or at any time thereafter, and without
further demand or notice, terminate this Agreement without being prejudiced as to
any remedies which may be available to it for breach of contract. Upon termination
for Licensee's default, the City may, in addition to any other rights and remedies it
may have at law or in equity, retain all sums paid to it by Licensee under this
Agreement, including but not limited to the Performance Bond in Section 17.
b. Self -Help. In the event Licensee fails to cure any default under this Agreement,
the City may, at its option, perform the cure activities of Licensee, in which event any expenditures
reasonably made by the City in this regard shall be deemed to be paid for on the account of
Licensee and Licensee agrees promptly to reimburse the City for any such expenditures upon
demand.
C. Default in Payment. In the event Licensee fails to make any payment within five
(5) days of its due date, a late charge, in the amount of five percent (5%) of the payment amount
due shall accrue. Additionally, any payment received by the City after ten (10) days of its due date
shall accrue interest at the rate of eighteen percent (18%) per annum or the highest rate allowable
by Florida law, whichever is less.
d. Removal of Attachments. Upon expiration or earlier termination of this
Agreement or a DAS Order, as appropriate, Licensee shall, within sixty (60) days following
termination or expiration of the Term, remove at its sole cost and expense, all visible Attachments
and restore all or any part of the Radio Space to the same condition as originally received by
Licensee (ordinary wear and tear excepted). Licensee's obligation to observe or perform this
covenant shall survive the expiration or other termination of this Agreement. Licensee's failure to
remove all visible Attachments and to restore all or any part of the Radio Space to its original
condition within the sixty (60) day period shall constitute trespass by the Licensee and may be
prosecuted as such. in addition, the Licensee shall pay to the City One Thousand ($1,000.00)
Dollars per day as liquidated damages for such trespass and holding over.
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e. Abandonment or Non -Operation. Non -operation or abandonment of the System
for a period of one hundred eighty (180) or more days shall constitute a termination of this
Agreement by Licensee, and Licensee shall thereupon be required to remove the System from
the Radio Space, in accordance with Section 13.d.
f. Default by the City. After receipt of such written notice from Licensee, the City
shall have thirty (30) days in which to cure any default. The City shall have such extended periods
as may be required beyond the thirty (30) day cure period to cure any non -monetary default if the
nature of the cure is such that it reasonably requires more than thirty (30) days to cure, so long
as the City commences the cure within the thirty (30) day period and thereafter continuously and
diligently pursues the cure to completion; however, such Cure Period shall never exceed ninety
(90) days. In the event that the City fails to cure the default as provided herein, Licensee may
immediately, or at any time thereafter, and without further demand or notice, terminate this
Agreement or DAS Order, as applicable, as Licensee's sole and exclusive remedy.
g. Force Majeure. The time of performance of any duty or obligation of the City or
Licensee hereunder shall be extended for the period during which performance was delayed or
impeded by reason of any Force Majeure events.
h. City's Limitation of Liability for Tort Damages. Nothing contained in this
Agreement is in any way intended to be a waiver of the limitation placed upon the City's liability
as set forth in Section 768.28, Florida Statutes.
13. Assignment. This Agreement shall extend to and bind the successors, transferees and
permitted assigns of the Parties. Any attempted assignment or transfer by a Party in violation of
this section shall be void.
a. Assignment by Licensee. Licensee shall not assign, mortgage, pledge,
hypothecate or otherwise transfer all or any portion of the Radio Space or the Agreement without
the prior express written consent of the City Commission, in its sole discretion. Notwithstanding
the foregoing, Licensee has the right to sublicense the Radio Space and use of the System to any
Wireless Carrier for a term not to exceed the Term of this Agreement; provided, however, that
Licensee retains exclusive control over the System and remain responsible for locating, servicing,
repairing, maintaining, replacing, relocating, or removing the System pursuant to the provisions
of this Agreement.
Further notwithstanding the foregoing, upon the written consent of the City Manager, which
consent may not be unreasonably withheld, delayed or conditioned, Licensee may assign or
delegate all or a portion of its obligations under this Agreement to an Affiliate or engage an Affiliate
to perform the design or construction services hereunder.
b. Assignment by the City. The City may assign or transfer its interest in this
Agreement, provided that the assignee shall be bound by all provisions herein. Any sale or
transfer (including by foreclosure) of the City's real property interest in any portion of the Property
containing an Attachment shall be subject to this Agreement, and any successor Property owner
shall be bound be the terms and conditions herein. Notwithstanding the foregoing, the City
Manager, at the City Manager's discretion, may assign or delegate all or a portion of its obligations
under this Agreement to a managing entity pursuant to an Operating Agreement, which managing
entity may subcontract the work, as permitted pursuant to an Operating Agreement.
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14. Mechanic's Liens. Licensee shall keep the Radio Space free from any liens arising out
of any work performed, material furnished or obligations incurred by Licensee, or any sub -licensee
or other approved assignee. Licensee shall not be considered in violation of this provision if within
fifteen (15) days from receipt of notice of the existence of a lien, Licensee provides a bond to
secure payment of the lien which is in conformance with applicable Law and which is in an amount
and form reasonably acceptable to the City.
15. Notice. Except as otherwise specified, any notice to be given to either Party under this
Agreement shall be sent by registered mail, return receipt requested, or by overnight courier with
a tracking record of delivery to the respective addresses set forth below. Except as otherwise
stated herein, any notice shall be effective immediately upon being deposited with the applicable
delivery agent.
The City:
City of Miami Beach
1700 Convention Center Drive Fourth Floor
Miami Beach, FL 33139 City Manager
Attn: Asset Management Division
With a copy to:
City of Miami Beach
1700 Convention Center Drive Fourth Floor
Miami Beach, FL 33139
Attn: Legal Department
Licensee:
Crown Castle Fiber LLC
c/o General Counsel
2000 Corporate Drive
Canonsburg, PA 15317
Attn: Legal — Venues
16. The City's Rlaht to Terminate for Convenience. The City may also, through its City
Manager, and for its convenience and without cause or penalty, terminate this Agreement at any
time during the Term by providing Licensee with written notice, at least one (1) year in advance.
17. Performance Bond or Alternate Security. Licensee shall, within thirty (30) days from
the Term Commencement Date, furnish to the City Manager or Structure Manager a Performance
Bond in the penal sum stated below for the payment of which Licensee shall bind itself for the
faithful performance of the terms and conditions of this Agreement. A Performance Bond, in the
amount of Three Hundred Fifty Thousand ($350,000.00) Dollars, shall be provided by Licensee
in faithful observance of this Agreement. A cash deposit, irrevocable letter of credit, or certificate
of deposit may also suffice, as determined by the City Manager or Structure Manager, in his sole
and reasonable discretion. The form of the Performance Bond or alternate security shall be
approved by the City's Chief Financial Officer. In the event that a Certificate of Deposit is
approved, it shall be a Three Hundred Fifty Thousand ($350,000.00) Dollar one- year Certificate
of Deposit in favor of the City, which shall be automatically renewed, the original of which shall be
held by the City's Chief Financial Officer. Licensee shall be so required to maintain said
Performance Bond or alternate security in full force and effect throughout the Term of this
Agreement. Licensee shall have an affirmative duty to notify the City Manager or Structure
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Manager, in writing, in the event said Performance Bond or alternate security lapses or otherwise
expires. All interest that accrues in connection with any financial instrument or sum of money
referenced above shall be the property of Licensee, except in an event of default, in which case
the City shall be entitled to all interest that accrues after the date of default.
18. Licensee's Compliance with Public Records Law/Protection from Disclosure of
Trade Secret Information.
(a) Licensee shall comply, with Florida Public Records law under Chapter 119, Florida
Statutes, as may be amended from time to time. Records made or received in connection
with this Agreement are public records under Florida law, as defined in Section
119.011(12), Florida Statutes.
(b) Pursuant to Section 119.0701 of the Florida Statutes, if Licensee meets the definition of
"Contractor' as defined in Section 119.0701(1)(a), Licensee shall:
(1) Keep and maintain public records required by the City to perform the service;
(2) Upon request from the City's custodian of public records, provide the City with a
copy of the requested records or allow the records to be inspected or copied within
a reasonable time at a cost that does not exceed the cost provided in Chapter 119,
Florida Statutes or as otherwise provided bylaw,
(3) Ensure that public records that are exempt or confidential and exempt from public
records disclosure requirements are not disclosed, except as authorized by law,
for the duration of the contract term and following completion of the Agreement if
Licensee does not transfer the records to the City;
(4) Upon completion of the Agreement, transfer, at no cost to the City, all public records
in possession of Licensee or keep and maintain public records required by the City
to perform the service. If Licensee transfers all public records to the City upon
completion of the Agreement, Licensee shall destroy any duplicate public records
that are exempt or confidential and exempt from public records disclosure
requirements. If Licensee keeps and maintains public records upon completion of
the Agreement, Licensee shall meet all applicable requirements for retaining public
records. All records stored electronically must be provided to the City, upon request
from the City's custodian of public records, in a format that is compatible with the
information technology systems of the City.
(c) REQUEST FOR RECORDS, NONCOMPLIANCE.
(1) A request to inspect or copy public records relating to the City's contract for
services must be made directly to the City. If the City does not possess the
requested records, the City shall immediately notify the Contractor of the request,
and Licensee must provide the records to the City or allow the records to be
inspected or copied within a reasonable time.
(2) Contractor's failure to comply with the City's request for records shall constitute a
breach of this Agreement, and the City, at its sole discretion, may: (1) unilaterally
terminate the Agreement; (2) avail itself of the remedies set forth under the
Agreement; and/or (3) avail itself of any available remedies at law or in equity.
(3) A Contractor who fails to provide the public records to the City within a reasonable
time may be subject to penalties under s. 119.10.
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(d) CIVILACTION
(() If a civil action is filed against a Contractor to compel production of public records
relating to the City's contract for services, the court shall assess and award against
Licensee the reasonable costs of enforcement, including reasonable attorney fees,
if:
a. The court determines that Licensee unlawfully refused to comply with the
public records request within a reasonable time: and
b. At least 8 business days before filing the action, the plaintiff provided written
notice of the public records request, including a statement that Licensee has not
complied with the request, to the City and to Licensee.
(2) A notice complies with subparagraph (1)(b) if it is sent to the City's custodian of
public records and to Licensee at Licensee's address listed on its contract with the
City or to Licensee's registered agent. Such notices must be sent by common
carrier delivery service or by registered, Global Express Guaranteed, or certified
mail, with postage or shipping paid by the sender and with evidence of delivery,
which may be in an electronic format.
(3) A Contractor who complies with a public records request within 8 business days
after the notice is sent is not liable for the reasonable costs of enforcement.
(e) IF LICENSEE HAS QUESTIONS REGARDING THE APPLICATION
OF CHAPTER 119, FLORIDA STATUTES, TO LICENSEE'S DUTY
TO PROVIDE PUBLIC RECORDS RELATING TO TIDS
AGREEMENT, CONTACT THE CUSTODIAN OF PUBLIC RECORDS
AT:
CITY OF MIAMI BEACH
ATTENTION: RAFAEL E. GRANADO, CITY CLERK
1700 CONVENTION CENTER DRIVE
MIAMI BEACH, FLORIDA 33139
E-MAIL: 2AFAELGRANADO(a)M_IAMIBEACHFL.GOV
PHONE: 305-673-7411
(f) Protection from Disclosure of Trade Secret Information. To the extent permissible under
applicable Law, the City shall protect from disclosure any of Licensee's trade secret
information which is submitted to the City under this Agreement; provided however, that
Licensee notifies the City of its assertion, and clearly labels the information which Licensee
deems to be a trade secret. Such notification and labeling shall be the sole responsibility
of Licensee. Notwithstanding the foregoing, any document or information, regardless of
physical form, created pursuant to this Agreement, in connection with the transaction of
the City's official business, shall not be considered trade secret information including,
without limitation, the terms of this Agreement, revenue payments and revenue statements
received by the City pursuant to this Agreement, and other similar information.
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The Parties agree that without the express written consent of the other Party, neither Party
shall reveal, disclose or publish to any third party during the Term of this Agreement any
trade secret information, except to such third party's auditor, accountant, lender or attorney
or to any federal, state or local governmental unit or agency thereof with jurisdiction if
required by regulation, subpoena or government order to do so. The City or Licensee may
show this Agreement, any DAS Order or any relevant attachment or exhibit to this
Agreement and any DAS Order (each with all trade secret information redacted) to a third
party, including to Wireless Carriers, to the extent reasonably necessary to demonstrate
Licensee's rights under this Agreement or the DAS Order, as the case may be.
If the City receives a public records request that covers the documents which have been
identified by Licensee as trade secret information, the City will temporarily withhold the
records and request that Licensee provide the City with an Affidavit of Trade Secret
Certification (Trade Secret Certification), in the form attached hereto as Exhibit E, within
seven (7) days. The City shall provide the requestor with a copy of the Trade Secret
Certification as part of the City's statutory obligations pursuant to Section 119.07(I)(e), Fla.
Stat. If Licensee fails to provide the City with the Trade Secret Certification within seven
(7) days, the City shall produce the public records requested in accordance with Florida
law. If Licensee provides the Trade Secret Certification and a requester object to the
application of the trade secret exemption, the City will promptly provide Licensee with
notice of the objection, so as to provide Licensee the opportunity to file an action with a
court of competent jurisdiction within thirty (30) calendar days seeking an order barring
public disclosure of the document. If Licensee fails to file a lawsuit within such time period,
the City shall produce the public records requested in accordance with Florida law.
Licensee agrees to indemnify the City with respect to all expenses, including any court
costs and attorney's fees, which may be incurred by the City in connection with any
administrative or court processing, including any appellate action, arising out of any public
records request relating to any trade secret information subject to the Agreement.
19. No Discrimination. Licensee agrees to comply with the City's Human Rights Ordinance,
as codified in Chapter 62 of the City Code, as may be amended from time to time, prohibiting
discrimination in employment (including independent contractors), housing, public
accommodations, or public services, and in connection with its membership or policies because
of actual or perceived race, color, national origin, religion, sex, intersexuality, sexual orientation,
gender identity, familial and marital status, age, ancestry, height, weight, hair texture and/or
hairstyle, domestic partner status, labor organization membership, familial situation, political
affiliation, or disability.
20. Miscellaneous
a. Governing Law/Waiver of Jury Trial. This Agreement shall be governed by and interpreted
according to the laws of the state where the Property is located, without reference to its
choice of law rules. This Agreement shall be enforceable in Miami -Dade County, Florida.
and if legal action is necessary by either Party with respect to the enforcement of any and
all the terms or conditions herein, exclusive venue for the enforcement of same shall lie in
Miami -Dade County, Florida. CITY AND LICENSEE HEREBY KNOWINGLY AND
INTENTIONALLY WAIVE THE RIGHT TO TRIAL BY JURY IN ANY ACTION OR
PROCEEDING THAT CITY AND LICENSEE MAY HEREIN AFTER INSTITUTE
AGAINST EACH OTHER WITH RESPECT TO ANY MATTER ARISING OUT OF OR
RELATED TO THIS AGREEMENT.
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Warranties. Each Party represents and warrants to the other that: (a) such Party has full
corporate and other authority to execute and deliver this Agreement and to consummate
the transactions contemplated in this Agreement and will have the same with respect to
each DAS Order; (b) the execution and delivery of this Agreement and the consummation
of the transactions contemplated by that Party in this Agreement have been duly and
validly authorized by all necessary corporate and other action: (c) such Party's Agreement
execution and performance under this Agreement will not breach or violate such Party's
operating authority, any applicable law or terms of any agreement to which either is
subject; (d) it has obtained or will obtained before the date required, all necessary licenses,
permits and authorizations necessary to conduct the activities contemplated by this
Agreement, and (e) as of the Effective Date and the date of each DAS Order, there is no
action, suit, investigation, claim, arbitration or litigation pending or, to such Party's
knowledge, threatened against, affecting or involving such Party, at law or in equity or
before any court, arbitrator or governmental authority that is reasonably likely to result in
a material adverse effect on such Party's ability to perform such Party's obligations under
this Agreement.
c. No waiver. Except as expressly set forth in this Agreement: (i) neither Party shall be
deemed to have waived any of its rights hereunder unless such waiver is in writing (ii) no
delay or omission by any Party in exPrc:ising any right shall npP.ratP. as a waiver of simh
right or of any other right, and (iii) a waiver on any one occasion shall not be construed as
a bar to, or waiver of, any right or remedy on any future occasion.
Interpretation. The singular includes the plural and the plural includes the singular. Except
as otherwise provided herein, references to a Section, Schedule or Exhibit mean a
Section, Schedule or Exhibit contained in or attached to this Agreement, all of which are
incorporated herein by reference. The caption headings in this Agreement are for
convenience and reference only and do not define, modify or describe the scope or intent
of any of the terms of this Agreement. This Agreement will be interpreted and enforced in
accordance with its provisions and without the aid of any custom or rule of law requiring
or suggesting construction against the Party drafting or causing the drafting of the
provisions in question. If any one or more of the provisions of this Agreement, or the
applicability of any such provision to a specific situation, shall be held invalid or
unenforceable by Law, such provision shall be modified to the minimum extent necessary
to make it or its application valid and enforceable, and the validity and enforceability of all
other provisions of this Agreement and all other applications of any such provision shall
not be affected thereby. If any date herein set forth for the performance of any obligations
by either Party or for the delivery of any instrument or notice as herein provided should be
on a Saturday, Sunday or legal holiday in the state in which the Property is located, the
compliance with such obligations or delivery shall be deemed acceptable on the next
business day.
These terms shall have the indicated meaning when used in this Agreement: (i) including
shall mean including, without limitation; (ii) or shall mean and/or (unless indicated
otherwise); and (iii) discretion means within the applicable party's sole discretion. Further,
any reference to statute, act or code shall mean the statute, act or code as amended.
Entire Agreement. This Agreement constitutes the entire and final expression of the
Parties hereto with respect to the subject matter hereof and supersedes all previous
agreements and understandings of the Parties, either oral or written. Specifically, the DAS
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Facility Use Agreement dated January 27, 2017, as amended, between the Parties (the
"Prior Agreement") is terminated and replaced by this Agreement. This Agreement can be
amended only by written agreement signed by the Parties. However, it is agreed to by the
Parties hereto that DAS Order: Miami Beach Convention Center with an Order Effective
Date of May 16, 2019, entered into under the Prior Agreement shall be deemed as being
entered into pursuant to the terms of this Agreement and shall remain in force and effect,
subject to the terms herein.
Counterparts. This Agreement may be executed in multiple counterparts, each of which
shall be fully executed as an original and all of which together shall constitute one and the
same instrument.
21. Licensee's Compliance With Anti -Human Trafficking Laws. Licensee agrees to
comply with Section 787.06, Florida Statutes, as may be amended from time to time, and has
executed the Certification of Compliance with Anti -Human Trafficking Laws, as required by
Section 787.06(13), Florida Statutes, a copy of which is attached hereto as Exhibit F.
22. Prohibition on Contracting with a Business engaging in a Boycott. Licensee warrants
and represents that it is not currently engaged in, and will not engage in, a boycott, as defined in
Sectiun 2-375 of the City Cude. In accurdance with Sectiun 2-375.1(2)(a) of the City Cud&,
Licensee hereby certifies that Licensee is not currently engaged in and agrees for the duration of
the Agreement to not engage in, a boycott of Israel, as evidenced from the signed certification,
attached hereto as Exhibit G.
23. PROHIBITION AGAINST CONTRACTING WITH FOREIGN COUNTRIES OF
CONCERN. Licensee hereby agrees to comply with Section 287.138, Florida Statutes, as may
be amended from time to time, which states that as of January 1, 2024, a governmental entity
may not accept a bid on, a proposal for, or a reply to, or enter into, a contract with an entity which
would grant the entity access to an individual's personal identifying information (PII), unless the
entity provides the governmental entity with an affidavit signed by an officer or representative of
the entity under penalty of perjury attesting that the entity does not meet any of the criteria in
Paragraphs 2(a)-(c) of Section 287.138, Florida Statutes: (a) the entity is owned by a
government of a foreign country of concern; (b) the government of a foreign country of concern
has a controlling interest in the entity; or (c) the entity is organized under the laws of or has its
principal place of business in a foreign country of concern (each a "Prohibited Entity"). Aforeign
country of concern is defined in Section 287.138 (1)(c), Florida Statutes, as may be amended
from time to time, as the People's Republic of China, the Russian Federation, the Islamic
Republic of Iran, the Democratic People's Republic of Korea, the Republic of Cuba, the
Venezuelan regime of Nicolas Maduro, or the Syrian Arab Republic, including any agency of or
any other entity of significant control of such foreign country of concern. Additionally, beginning
July 1, 2025, a governmental entity may not extend or renew a contract with a Prohibited Entity.
Licensee warrants and represents that it does not fall within the definition of a Prohibited Entity,
and as such, has caused an authorized representative of Licensee to execute the "Prohibition
Against Contracting with Entities of Foreign Countries of Concern Affidavit", incorporated herein
by reference and attached hereto as Exhibit H.
24. PROHIBITION ON CONTRACTING WITH AN INDIVIDUAL OR ENTITY WHICH HAS
PERFORMED SERVICES FOR COMPENSATION TO A CANDIDATE FOR CITY ELECTED
OFFICE. Licensee warrants and represents that, within two (2) years prior to the Effective Date,
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Licensee has not received compensation for services performed for a candidate for City elected
office, as contemplated by the prohibitions and exceptions of Section 2-379 of the City Code.
For the avoidance of doubt, the restrictions on contracting with the City pursuant to Section 2-
379 of the City Code shall not apply to the following:
(a) Any individual or entity that provides goods to a candidate for office.
(b) Any individual or entity that provides services to a candidate for office if those same
services are regularly performed by the individual or entity in the ordinary course of
business for clients or customers other than candidates for office. This includes, without
limitation, banks, telephone or internet service providers, printing companies, event
venues, restaurants, caterers, transportation providers, and office supply vendors.
(c) Any individual or entity which performs licensed professional services (including for
example, legal or accounting services.
25. E-VERIFY
A. to the extent that Licensee provides labor, supplies, or services under this
Agreement, Licensee shall comply with Section 448.095, Florida Statutes,
"Employment Eligibility" ("E-Verify Statute"), as may be amended from time to
time. Pursuant to the E-Verify Statute, commencing on January 1, 2021, Licensee
shall register with and use the E-Verify system to verify the work authorization
status of all newly hired employees during the Term of the Agreement. Additionally,
Licensee shall expressly require any subcontractor performing work or providing
services pursuant to the Agreement to likewise utilize the U.S. Department of
Homeland Security's E-Verify system to verify the employment eligibility of all new
employees hired by the subcontractor. If Licensee enters into a contract with an
approved subcontractor, the subcontractor must provide the Licensee with an
affidavit stating that the subcontractor does not employ, contract with, or
subcontract with an unauthorized alien. Licensee shall maintain a copy of such
affidavit for the duration of this Agreement or such other extended period as may
be required under this Agreement.
B. TERMINATION RIGHTS
If the City has a good faith belief that Licensee has knowingly violated
Section 448.09(1), Florida Statutes, which prohibits any person from
knowingly employing, hiring, recruiting, or referring an alien who is not duly
authorized to work by the immigration laws or the Attorney General of the
United States, the City shall terminate this Agreement with Licensee for
cause, and the City shall thereafter have or owe no further obligation or
liability to Licensee.
2. If the City has a good faith belief that a subcontractor has knowingly violated
the foregoing Subsection 25.A, but the Licensee otherwise complied with
such subsection, the City will promptly notify the Licensee and order the
Licensee to immediately terminate the contract with the
subcontractor. Licensee's failure to terminate a subcontractor shall be an
event of default under this Agreement, entitling City to terminate this
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Agreement for cause.
3. A contract terminated under the foregoing Subsection B.1 or B.2 is not in
breach of contract and may not be considered as such.
4. The City or Licensee or a subcontractor may file an action with the Circuit
or County Court to challenge a termination under the foregoing Subsection
B.1 or B.2 no later than 20 calendar days after the date on which the
contract was terminated.
5. If the City terminates the Agreement with Licensee under the foregoing
Subsection B.1, Licensee may not be awarded a public contract for at least
1 year after the date of termination of this Agreement.
6. Licensee is liable for any additional costs incurred by the City as a result
of the termination of this Agreement under this Section 25.
*****SIGNATURE PAGE TO FOLLOW*****
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IN WITNESS WHEREOF, The City and Licensee have caused this Agreement to be
executed by their duly authorized representatives as of the Effective Date.
THE CITY:
City of Miami Beach
By:
Name: Eric T. Carp nter
Title: City Manager
ATTEST:Sigby:
Na .W'ff4'Granado
Title: ft9bih 1 5 : 32 PM EDT
Date:
LICENSEE:
Crown Castle Fiber LLC
By:
Name: T.ii
Title: b,r, sfasr--
WITNESSED:
By:
Name: Yl n�Sha
Title: caC
Date: R= l la- 12 l n
Page 28 of 50
APPROVED AS TO
FORM & LANGUAGE
& FOR EXECUTION
ea66,
I,,\', C�
/ ( City Attorney