Loading...
HomeMy WebLinkAbout2006-26408 Reso RESOLUTION NO. 2006-26408 A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, APPROVING AND AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE A PILOT AGREEMENT WITH FLORIDA POWER AND LIGHT COMPANY (FP&L) TO ALLOW THE CITY TO ATTACH WIRELESS (WIFI) RADIO EQUIPMENT REQUIRING ELECTRIC SERVICE TO FP&L STREET LIGHT BRACKETS FOR THE PURPOSE OF PROVIDING WIRELESS PUBLIC COMMUNICATIONS FOR THE CITY'S POLICE, FIRE, AND EMERGENCY SERVICES DEPARTMENTS, AND FOR SUCH OTHER PUBLIC PURPOSES AS THE CITY SHALL DEEM IN ITS BEST INTEREST; SAID AGREEMENT HAVING AN INITIAL ONE YEAR TERM, WITH SUBSEQUENT AUTOMATIC ONE YEAR RENEWAL TERMS. WHEREAS, during the contract negotiations for the WiFi project, it was determined that there were insufficient mounting assets throughout the City to deploy a Citywide WiFi system; and WHEREAS, the main mounting asset being used for the WiFi system deployment is the street light pole that includes a lamp that lights up the streets at night; and WHEREAS, the City owns many street lights, the majority of the City owned lights in the Middle Beach area are of the pedestrian height, decorative type, and are not suitable for mounting wireless radio equipment requiring electric service ("WiFi nodes"); and WHEREAS, many of the suitable street lights throughout the City are owned by entities such as the Florida Department of Transportation (FOOT) and Florida Power and Light (FP&L); and WHEREAS, the City has explored the options available and has worked with FP&L to develop the attached Pilot Agreement to attach WiFi nodes to FP&L owned poles, and FP&L has the available assets and is able to provide to the City the right to use their assets to deploy WiFi nodes; and WHEREAS, utilizing FP&L street light poles (mounting assets) will be less costly to the City than acquiring and installing new poles; and WHEREAS, the number of poles requested from FP&L is approximately 65, for a first year cost of $6,903; and WHEREAS, assuming an annual 3% increase in the CPI, it would take over 30 years to match the capital cost of purchasing new poles. NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA that the Mayor and City Commission hereby approve and authorize the Mayor and City Clerk to execute a Pilot Agreement with Florida Power And Light Company (FP&L) to allow the City to attach wireless radio equipment requiring electric service to FP&L street light brackets for the purpose of providing wireless public communications for the City's Police, Fire, and Emergency Services Departments, and for such other public purposes as the City shall deem in its best interest; said Agreement having an initial one year term, with subsequent automatic one year renewal terms. ~ ,2006. PASSED and ADOPTED THIS ~ day of , Robert Parcher T:\AGENDA\2006\dec0606\consent\FPL Attachment Agreement commission resolution.doc APPROVED AS TO FORM & LANGUAGE & FOR EXE UTION , ,< I;' / - ~ COMMISSION ITEM SUMMARY Condensed Title: Approving And Authorizing A Pilot Agreement W ith FP&L To Allow The City To Attach Wireless Radio Equipment Requiring Electric Service To FP&L Street Light Brackets For The Purpose Of Providing Wireless Public Communications For The City's Police, Fire, And Emergency Services Departments, And For Such Other Public Purposes As The City Shall Deem In Its Best Interest; Said Agreement Having An Initial One Year Term, With Subsequent Automatic One Year Renewal Terms. Ke Intended Outcome Supported: Improve process through Information Technology Issue: Shall the City execute an agreement with FP&L which will permit the City to attach WiFi nodes to FP&L street Ii ht oles for a 1 ear term with automatic 1 ear renewal terms? Item Summary/Recommendation: During the contract negotiations for the WiFi project, it was determined that there were insufficient mounting assets in the City to deploy a citywide W iFi system. Many of the street lights throughout the City are adequate mounting assets but are owned by entities such as the Florida Department of Transportation (FDOT) and Florida Power and Light (FP&L). The City has worked with FP&L to develop an agreement to attach WiFi nodes to FP&L owned poles. While working with FP&L, the City was notified that FP&L had a self-imposed moratorium to re-evaluate the construction and pole attachment standards. Attaching to FP&L's facilities before these rules and associated standards are final, subjects the City to certain financial risks. Since the risks assumed by being exempted from the moratorium were acceptable, the City sought and was granted exemption from this moratorium. The cost of the proposed agreement will be lower to the City than the cost to the City for installing new poles. The 2006 cost for using each FP&L pole is $106.20 and shall be increased each January 1st by the change in the CPI. The number of poles requested for use from FP&L in the agreement is approximately 65 for a term of 1 year with auto renewing 1 year terms for an initial annual cost of $6,903. The cost to acquire, install and bring power to a new pole is over $5,000 with a delivery time of over two months. Using a cost of $106.20 for the initial year and assuming a constant 3% increase in the CPI, it would take over 30 years for a the cost of using a single pole from FP&L to match the capital cost of purchasing and powering a new pole by the City. Advisory Board Recommendation: I Financial Information: Source of Amount Account Approved Funds: 1 $6,903 550.1750.000674 D 2 3 4 aSPI Total Financial Impact Summary: Cost per FP&L pole is $106.20 annually. The number of poles requested for use from FP&L is approximately 65 for a term of 1 year with an auto renewing 1 year terms for an annual cost of $6,903. City Clerk's Office Legislative Tracking: I Sign-Offs: < Department Director City Manager lD ...... MIAMIBEACH AGENDA ITEM G 7/1/ DATE /~-~ -O~ lD MIAMI BEACH City of Miami Beach, 1700 Convention Center Drive, Miami Beach, Florida 33139, www.miamibeachfl.gov COMMISSION MEMORANDUM TO: Mayor David Dermer and Members of the City Commission FROM: Jorge M. Gonzalez, City Manager 1 ~ DATE, December 6,2006 U "... 0 SUBJECT: A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, APPROVING AND AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE A PILOT AGREEMENT (THE AGREEMENT) WITH FLORIDA POWER AND LIGHT COMPANY (FP&L) TO ALLOW THE CITY TO ATTACH WIRELESS RADIO EQUIPMENT REQUIRING ELECTRIC SERVICE TO FP&L STREET LIGHT BRACKETS FOR THE PURPOSE OF PROVIDING WIRELESS PUBLIC COMMUNICATIONS FOR THE CITY'S POLICE, FIRE, AND EMERGENCY SERVICES DEPARTMENTS, AND FOR SUCH OTHER PUBLIC PURPOSES AS THE CITY SHALL DEEM IN ITS BEST INTEREST; SAID AGREEMENT HAVING AN INITIAL ONE YEAR TERM, WITH SUBSEQUENT AUTOMATIC ONE YEAR RENEWAL TERMS. ADMINISTRATION RECOMMENDATION Adopt the Resolution. FUNDING Funding during the initial year will come from 550-1750-000674. In subsequent years, the cost will be funded from the IT Department's annual Operating Budget. ANAL YSIS During the contract negotiations for the WiFi project, it was determined that there were insufficient mounting assets throughout the City to deploy a citywide WiFi system. A mounting asset is a place where a WiFi radio repeater can be attached in order to transmit and receive WiFi signals. The main mounting asset being used for the WiFi system deployment is the common street light pole that includes a lamp that lights up the streets at night. While the city owns many street lights, the majority of the city owned lights in the middle beach area are of the pedestrian height, decorative type and are not suitable for mounting wireless radio equipment requiring electric service ("WiFi nodes"). Additionally, many of the street lights throughout the City are owned by entities such as the Florida Department of Transportation (FDOT) and Florida Power and Light (FP&L). Since the City was aware of the shortage of adequate mounting assets, during the contract negotiations, the City agreed to be responsible for providing these mounting assets. The City has explored the options available and has worked with FP&L to develop a pilot agreement ( "The Agreement") to attach WiFi nodes to FP&L owned poles. The Agreement is for a one year term with automatic one year renewal terms at a annual rate of $1 06.20 per pole escalating by the annual change in the CPI. The proposed Agreement is attached. While working with FP&L, the City was notified that FP&L had a self-imposed moratorium to re-evaluate the construction and pole attachment standards. Attaching to FP&L's facilities before these rules and associated standards are final, subjects the City to certain financial risks. For example, the new standards might require an existing pole with a streetlight bracket to be replaced with a larger pole, requiring the removal of the old attachment and installation of the new attachment. These removal and installation costs of the attachments would be the City's responsibility. Additionally, if a WiFi attachment affected the loading on a pole such that FP&L was now required to install a stronger pole to meet standards, the difference in cost between the new pole and the existing pole would be the City's responsibility. In the normal deployment process of the WiFi nodes, and in their lifetime, these devices are moved and replaced to improve and refine the coverage that they offer. Thus, removing and reinstalling a WiFi node is an acceptable risk. Also, the Building Department reviewed the wind loading characteristics of these devices while it permitted their installation on City owned street lights and felt that the wind load was adequate enough to issue a permit to install on our own street lights. The attachment of the node is thus compliant with the South Florida Building Code. Since the risks assumed by being exempted from the moratorium were acceptable, the City sought and was granted exemption from this moratorium. The letter announcing the exemption is attached. Utilizing FP&L street light poles (mounting assets) will be less costly to the City than acquiring and installing new poles. The cost to acquire and install a new pole, not including the cost of bringing electrical service to the pole, is approximately $5,000. Attaching our WiFi devices to FP&L poles is also more expeditious as acquisition of poles is delayed as much as two months as a result of the number of poles that required replacement from recent hurricane seasons. The 2006 cost for using each FP&L pole is $106.20 per year and escalates by the annual change in the CPI. The number of poles requested from FP&L is approximately 65 for a first year cost of $6,903. Assuming an annual 3% increase in the CPI, it would take over 30 years to match the capital cost of purchasing new poles. Approximately 100 FOOT street light poles have been identified for use as mounting assets for our WiFi nodes. FOOT has been extremely cooperative and currently we are in the permitting process for these poles. All WiFi attachments to existing City poles have been deployed. Following the approval of the attached Agreement and the completion of permitting activities with FOOT, the remaining WiFi nodes can be deployed. We anticipate the completion of deployment and final testing to occur during the first quarter of 2007. CONCLUSION The Administration recommends that the Mayor and City Commission authorize the execution of an Agreement with Florida Power and Light Company (FP&L) to allow the City to attach WiFi nodes to FP&L light brackets. JMG/POW/GA T:\AGENDA\2006\dec0606\consent\FPL Attachment Agreement commission memorandum.doc A TT ACHMENT TO STREET LIGHT BRACKETS: PILOT AGREEMENT BETWEEN CITY OF MIAMI BEACH and FLORIDA POWER & LIGHT COMPANY TABLE OF CONTENTS ARTI CLE I - D EFINITI ONS .................................................................................................. 1 1.1. Attachment.............................. ........................................................................................ 1 1.2. Licensee...................... ........ ............................................................................................ 1 1.3 . Licensee's Device.............................................. ............................................................. 2 1.4. NESC.............................. ................................................................................................ 2 1.5. Rearrangement/Rearrange................................ ............................................................... 2 1.6. Street Light Bracket........................................................................................................ 2 1. 7. Street Light Facility Capacity.............................................................................. ............ 2 1.8. Street Light Facility or Facility........................................................................................ 2 1.9. Po Ie............................................................................................................................ ..... 2 1.10. Unauthorized Attachment................................................................................................ 2 ARTICLE II - TERM AND RIGHT TO ATTACH ...............................................................3 2.1. Term .......................................... ..................................................................................... 3 2.2. Limitations to Attachment.............. .... ...................................... .............. ........ ........ ......... 3 2.3. Inspection and Capacity........................................................ .................................. ........ 3 2.4. Florida Power & Light Company Permit ......................................................................... 4 2.5. Pilot Experiences............................................................................................................. 4 ARTICLE III - A TT ACHMENT AND MAINTENANCE .................................................... 4 3 .1. Licensee's Attachments.............................................................................................. ..... 4 3.2. Licensee's Duty to Warn........................ .... .... ................ ...... ............ .... .......... ...... ........ ... 4 3.3. Licensee's Permits/Franchises............................ .............................. ............................... 4 3.4. Standards for Attachments to FPL Street Light Brackets ................................................. 5 3.5. Rearrangement, Transfer of Licensee's Device.......... ............................ .......................... 6 3.6. FPL Inspection................................................................................................ ................ 7 3.7. FPL' s Delivery of Electric Service .................................................................................. 7 ARTICLE IV - LICENSE AND REMOVAL FEES, BILLING ............................................7 4.1. Attachment Fees.... .......................................................................................................... 7 4.2. Removal Fees.................................................................................................................. 8 4.3. Licensee's Rearrangement Costs..................................................................................... 9 4.4. Billing............................................................................................................................. 9 4.5. Payment and Late Charges.............................................................................................. 9 4.6. Effect of Non-Payment.. .............. .... ........ .............. ............ .............. ............ .......... .......... 9 ARTI CLE V - REM 0 V AL.................................................................................................... 10 5.1. Licensee's Expense.................................... .......................... ................................ ......... 10 5 .2. Notice by Licensee........................................................................................................ 10 5.3. Immediate Removal for Licensee's Lack of Authorization ............................................ 10 5.4. Immediate Removal for Legal Action against FPL ........................................................ 10 5.5. Removal after Elimination of FPL Facilities.................................................................. 10 Streetlight Wireless Attachment T ABLE OF CONTENTS (CONTINUED) ARTICLE VI - RESERVATION OF RIGHTS, LIMITATION OF LIABILITY AND INSURANCE ................................. 11 6.1. Reservation of Rights and Release by the Licensee .......................................................11 6.2. No Consequential Damages........................................................................................... 11 6.3. Indemnification of FPL ................................................................................................. 12 6.4. Insurance....................................................................................................................... 13 6.5. Contractor/User Indemnification ................................................................................... 14 6.6. Contractor/U ser Insurance............................................................................................. 14 ARTICLE VII - MISCELLANEOUS PROVISIONS .......................................................... 14 7.1. Default and Termination................................................................................................ 14 7.2. Non-waiver ................................................................................................................... 15 7.3. Non-exclusive Right...................................................................................................... 15 7.4. No Property Right.............. .............. .... ................................ .............. ........ ........ .... ....... 16 7.5. Assignment.................................. ................................................................ ................. 16 7.6. Successors and Assigns ...... ................................ .... ...................... .......... .......... ........ ..... 16 7.7. Notice Under this Agreement .................... ...... ...................... ............ .... ...... ............ ...... 16 7.8. Severability........................................ ........................................................................... 16 7.9. Applicable Law.................. .... .... .... ........................ .................... .............. ............ ......... 16 7.10. Confidentiality.......................................... .............................. ............ .......... .......... ...... 17 7.11. Authority to Execute ..................................................................................................... 17 7.12 . No Offer........................................................................................................................ 1 7 Exhibit A - Application for Attachment Permit ........................................................................ 19 Exhibit B - Notice of Attachment/RemovaL.................... ............ .............. ............ .................. 20 Exhibit C - Licensee's Device.................................................... .............................................. 21 Exhibit D - FPL Requirements................................... ......................................... ..................... 22 II Streetlight Wireless Attachment A TT ACHMENT TO STREET LIGHTS: PILOT AGREEMENT BETWEEN CITY OF MIAMI BEACH and FLORIDA POWER & LIGHT COMPANY THIS AGREEMENT, made this day of , 2006, between the City of Miami Beach, a Florida municipality with an address of 1700 Convention Center Drive, Miami Beach, Florida 33139 (hereinafter referred to as "Licensee") and Florida Power & Light Company, Inc., a corporation organized and existing under the laws of Florida with a main office at 9250 W. Flagler Street, Miami, Florida 33174 (hereinafter referred to as "FPL"). WIT N E SSE T H: WHEREAS the Licensee desires to attach wireless radio equipment requiring electric service to the FPL Street Light Brackets for the purpose of construction, operation, and maintenance of a digital communications radio network for the sole purpose of providing a wireless public communications for Licensee's police department, fire department, emergency medical services and other public purposes, as Licensee shall deem, in its reasonable judgment, in the best interest of the City of Miami Beach and / or possible shared use with FPL (hereinafter referred to as "Licensee's System" or "System"); and. WHEREAS, FPL is interested in evaluating the technology as a pilot installation under a controlled setting and under terms and conditions which will allow, FPL to learn in factual detail Licensee's experiences in installing, operating and maintaining this technology and to observe field or central office operations using this technology; and WHEREAS, FPL is willing to permit, to the extent it may lawfully do so, the attachment of said System to its existing Street Light Brackets, and to no other FPL facilities, where, in FPL's judgment, such use will not interfere with FPL's own system integrity or service requirements, including, without limitation, considerations of economy, safety, regulation and reliability. NOW, THEREFORE, in consideration of the mutual covenants, terms and conditions herein contained, the parties covenant and agree as follows: ARTICLE I - DEFINITIONS 1.1. Attachment means the physical attachment of the Licensee's Device to a FPL Street Light Bracket. Under this Agreement, Attachments may be made only to FPL owned Street Light Brackets that serve FPL-owned, individually-controlled 120V luminaries which are accessible to FPL's vehicles. 1.2. Licensee means the City of Miami Beach, Florida which is the owner of the wireless equipment. Streetlight Wireless Attachment 1.3. Licensee's Device or Device means the Licensee's wireless router unit which consists of the Tropos radio, antenna, electric cable, and supporting hardware required by the Licensee to attach a radio to FPL Street Light Brackets. The radios to be installed by Licensee under the terms of this Agreement will be of a size and weight substantially similar to that depicted and set forth on Exhibit C. Licensee will not install or attempt to install a future generation of the Tropos radio more than twenty (20%) percent larger than the dimensions of the radios shown and described in Exhibit C without prior approval by FPL. Unless otherwise approved by FPL, all other Licensee equipment and hardware are excluded from this definition and shall not be allowed on the FPL Street Light Facilities or other FPL Facilities. 1.4. NESC is the National Electrical Safety Code. 1.5. Rearrangement/Rearrange means any activity or work which is necessary when there is a change in the FPL Street Light Facilities or FPL service requirements or to ensure that Licensee's Attachments do not adversely affect FPL's Street Light Facilities or service. "Rearrangement" includes but is not limited to relocation, adjustment, modification, conversion, permanent or temporary support, protection, design or redesign, abandonment, and removal or reconstruction of Licensee's Device(s). 1.6. Street Light Bracket means a long slender bracket extending from a Street Light or Distribution Pole that serves as a single structural member supporting the FPL luminary or lamp. 1.7. Street Light Facility CaDacity means the maximum allowable stress, strain or force the Pole or Street Light Bracket can be subjected to, as determined by FPL's standards and the guidelines within the NESC. 1.8. Street Light Facility or Facility means equipment used by FPL for the purpose of street lighting, including, Poles, wires, cables, luminaries or lamps, Street Light Brackets or other appurtenances, and associated equipment which is located on Licensee's right-of- way, but excluding FPL transmission poles. 1.9. Pole means a long slender usually cylindrical, piece of wood or concrete connected to, or part of, a single foundation embedded in the ground that serves as a single structural member supporting the FPL Street Light and Street Light Bracket and which is located on road right-of-way owned by the local, county, state, or federal government. These poles are used for the purpose of lighting streets and may also be used for the distribution of electric service. Pole as used herein does not include decorative street light poles or street light poles which are not constructed of wood or concrete, and Licensee shall not attach to any brackets that are located on transmission Poles. 1.10. Unauthorized Attachment means an Attachment to any FPL property not expressly permitted by this Agreement or without notification of Attachment or FPL's authorization, or without or in violation of any necessary local, state or federal permit, consent, or requirement. 2 Streetlight Wireless Attachment ARTICLE II - TERM AND RIGHT TO A TT ACH 2.1. Term. This Agreement is for an initial pilot term of one (1) year commencing with the date first written above and ending on midnight immediately preceding the one (1) year anniversary of said date. Provided the Licensee is not in default under the terms of this Agreement and that FPL determines that the system integrity was not adversely affected by such Attachment, this Agreement shall be continuously self-renewing for subsequent additional one (l) year terms unless either party provides written notice to the other party no later than sixty (60) days prior to the expiration of the then effective term that it wishes to terminate this Agreement for any or no cause. Individual permits issued under this Agreement may automatically expire as provided in Exhibit A attached hereto. 2.2. Limitations to Attachment. a. Nature of Licensee's Service. The Licensee may attach its Devices for the sole purpose of providing wireless internet services. Any other use of the Licensee's Devices shall permit FPL to terminate this Agreement. b. Street Light Facilities. The Licensee may attach Licensee's Devices only to existing or future FPL Street Light Brackets, which are on road right-of-way owned or controlled by the local, county, state, or federal government. The Licensee may not attach to the FPL Street Light Facilities that are not on road right-of-way owned or controlled by the local, county, state, or federal government. The Licensee may not attach its Devices to any other FPL property. c. Orientation of Installation. The Licensee's Device may only be installed with the antenna pointed downward. 2.3. Inspection and Capacity. Prior to applying for permission to attach to any FPL Street Light Bracket, the Licensee shall inspect each Street Light Facility to which it wishes to attach and shall confirm that each such Street Light Facility includes an individually- controlled 120V luminary, and is located on a local, county, state or federal government road right-of-way. For each type or configuration of Street Light Facility on which Licensee desires to attach, Licensee shall prepare an initial worst case scenario capacity study, including wind-loading, and calculations according to FPL requirements specified in Exhibit D. The Licensee shall attach to its permit application its worst-case scenario capacity calculations, including wind-loading... for each type or configuration of Street Light Facility to which it desires to attach. If the Street Light Facility capacity is inadequate to support the Attachments in accordance with the specifications in Exhibit D and Article III below, the Licensee will not attach to that Facility. 2.4. Florida Power & Light Company Permit. After inspection and prior to attaching to any FPL Street Light Bracket, the Licensee shall apply for a written permit pursuant to an application in the form of Exhibit A. By identifying a Street Light Facility in Exhibit A, the Licensee is representing that it has performed an inspection of the Street Light 3 Streetlight Wireless Attachment Facility and that it has confirmed to the best of its knowledge, information and belief, that the Street Light Facility is FPL's, includes an individually-controlled 120V luminary, and is located on a road right-of-way owned or controlled by a local, county, state or federal government, and the Licensee is consenting to FPL relying upon such representations. 2.5. Pilot Experiences. During the initial one (1) year pilot term, Licensee and FPL agree that the attached technology is considered a pilot installation and that the Licensee shall share with FPL factual details, and where possible actual data, of Licensee's experiences in installing, operating and maintaining this technology and shall allow FPL at mutually convenient and agreed upon times to observe field or central office operations using this technology. Licensee and FPL further agree that it is their intent that FPL, at the option of FPL, may avail itself of the use of this techno logy for FPL purposes at no additional cost to FPL, provided that such use does not interfere with Licensee's use during the term of this Agreement or any extension thereof. ARTICLE III - ATTACHMENT AND MAINTENANCE 3.1. Licensee's Attachments. a. Safe Condition and Non-interference. The Licensee, at its own expense, shall make and maintain its Attachments to the Street Light Bracket in safe condition and in thorough repair, both in a manner suitable to FPL and so that the Attachments do not conflict with the use of Facilities by FPL or other licensees. The Licensee shall exercise reasonable care to avoid damage to property of FPL and to attachments of others supported on any FPL property and shall immediately report any damage to FPL and to any other owners of damaged facilities or attachments. FPL shall have no installation, maintenance, repair or other responsibility for Licensee's Devices. b. Worker Qualification. The Licensee may make, remove and maintain its Attachments to the FPL Street Light Facilities only by qualified journeyman employees of Licensee or by engaging a qualified electrical contractor journeyman. This qualification shall include similar work performed in the past, such as street light repair in the power zone of an electric utility's distribution facilities. Licensee shall have sole responsibility for determining whether its employee or contractor is qualified. 3.2. Licensee's Dutv to Warn. Licensee agrees to warn its employees, agents, contractors, and invitees of the fact that the electrical facilities and appurtenances installed or to be installed by FPL are charged with high voltage electricity and to inform such persons as to safety and precautionary measures which they must use when working on or near FPL property and other facilities. 3.3. Licensee's Permits/Franchises. The Licensee, at its own expense, shall obtain and shall ensure that any communications provider utilizing Licensee's Devices to provide Licensee's communications services as set forth herein, all necessary permits, franchises and other authorization of any kind whatsoever from local, state and federal governments 4 Streetlight Wireless Attachment and agencies prior to installing Licensee's Devices to the FPL Street Light Brackets. Licensee shall provide an affidavit to FPL with the first Exhibit A for that authorization area, stating that it has received all such authorizations. 3.4. Standards for Attachments to FPL Street Light Brackets. a. Compliance with Local and National Codes. Licensee agrees to comply with all local and national codes, including the latest edition of the National Electrical Code (NEe) and rules of the Federal Communications Commission with respect to radio frequency emissions, and the Licensee shall submit an affidavit that all the Licensee's Devices meet current local and national code requirements, including the requirements of the NEC, with every Exhibit B submitted to FPL. b. NESe. NEe. Regulatory and FPL Requirements. The Licensee agrees to install, construct and maintain its Devices on FPL Street Light Brackets by qualified journeyman employees or through the use of a licensed electrical contractor's journeyman employee paid under a contract executed by the Licensee and to do so in accordance with the requirements and specifications of the NESC, latest edition, or any applicable amendments, revisions, or subsequent editions of said NESC as well as the additional construction requirements set forth by a regulatory agency or FPL in Exhibit D. The Licensee recognizes that by installing its Devices on FPL Street Light Brackets, its Devices will be installed within the power zone of the Pole. Therefore, all construction, operation, maintenance and removal of Licensee's Devices must, at a minimum, conform to the standards of the NESC for facilities in the power zone, including the requirement that the persons working within the power zone be qualified electrical journeyman linemen. If any part of the Licensee's Devices is found to have been installed in violation of the NESC, the NEC, Regulatory or FPL requirements (Exhibit D) at the time of Attachment or in the future if the requirement pertains to existing Attachments, the Licensee shall immediately make all corrections at the Licensee's expense, including Rearrangement of Facilities and of attachments of others and removal of an Attachment where necessary. c. Installation of Attachments. Licensee's installation of its Devices on each FPL Street Light Bracket shall be restricted to the Street Light Bracket itself and in accordance with any requirements laid out in this Agreement. If Licensee fails to install its Attachment as agreed, Licensee shall be responsible for all costs of modification or Rearrangement of Licensee's Devices. If FPL should require the Licensee to Rearrange its Attachment for FPL needs, Licensee shall assume the added cost of such Rearrangement; provided however, FPL shall use reasonable efforts to afford Licensee an alternative Street Light Bracket location. d. Other Requirements. All installation work shall be done in accordance with local rules, regulations, statutes and ordinances. The Licensee agrees to participate in FPL's notification and scheduling processes for system and facility transfers. All Attachments shall be subject to rights under any other attachment agreement in 5 Streetlight Wireless Attachment effect now or at the time of Licensee's application for Attachment. Licensee agrees that this Attachment Agreement is non-exclusive and that attachments of third parties to FPL Street Light Brackets shall be on a "first-come, first-serve basis." If it is necessary to Rearrange attachments of any other licensee attached to the FPL Facility in order for the Licensee to attach its Devices, Licensee shall be responsible for coordinating such Rearrangement with the attached party and shall pay all costs of such Rearrangement. If a third party, acceptable to FPL, desires to attach to an FPL Street Light Facility to which the Licensee is already attached, Licensee shall cooperate with that third party in any Rearrangement of Licensee's Devices in order to accommodate the third party attachment in a manner that does not interfere with Licensee's signal and shall be solely responsible for reaching agreement with and obtaining reimbursement for Rearrangement of Licensee's Devices from that third party. e. Marking of Licensee's Devices. The Licensee agrees to install or mark the Devices at every location in a manner acceptable to FPL and consistent with guidelines adopted by the Florida Utility Coordinating Committee ("FUCC'), so that it can be easily identified from the ground and from other similar equipment on the Facility. In the absence of more stringent regulatory requirements, Licensee must clearly mark each Device with safety requirements for any workers working on, with and/or around Licensee's Devices to warn said worker of RF emissions. This will include, but is not limited to, the appropriate distance to maintain while Licensee's Device is energized and to de-energize Licensee's Device, if required, prior to working on, with and/or around Licensee's Device. f Licensee's Notice of Attachment. Within thirty-one (31) days of attaching to FPL's Street Light Brackets, Licensee shall provide FPL with Notice of Attachment in the form of Exhibit B attached hereto. Failure to provide FPL with Exhibit B within thirty-one (31) days of construction will delay the post inspection and recording of Attachments and will prejudice other entities desiring to attach to FPL's facilities. For permits requiring greater than thirty-one (31) days of construction, Exhibit B shall be filed monthly as to the progress of construction. Failure to timely file an Exhibit B may result in rescission of a permit with respect to remaining Attachments to be made under that permit or denial of new permits until such time as the filing is made. Recurring failure to timely file fifty percent (50%) or more Exhibit B's shall be grounds for termination by FPL. Licensee will bear all costs for post-audit, back billings and administrative fees caused by Licensee's delinquency. 3.5. Rearrangement, Transfer of Licensee's Device. a. Timing. When it is necessary for the Licensee to Rearrange its Attachment on an existing Facility or transfer its Attachment to a replacement Facility, the Licensee will move, remove or transfer its Attachment as required within forty-five (45) days of notification from FPL. The Licensee will participate in FPL's notification process and conform to FPL's scheduling in order to accomplish this. 6 Streetlight Wireless Attachment b. Failure of Licensee to Relocate. Rearrange or Transfer: Emergency Situations. After forty-five (45) days notice from FPL, if Licensee has failed to duly relocate, Rearrange or transfer Licensee's Device, or not notice in cases of emergency, FPL in the sole option of FPL, may Remove Licensee's Device. In the event Licensee's Device has been removed by FPL due to an emergency, FPL shall endeavor to provide verbal notice to Licensee within forty-eight (48) hours of such removal, if contact information is placed on the Device with said request; provided, however, FPL shall have no duty or obligation to provide such notice. Licensee, on written demand, shall reimburse FPL for the expense thereby incurred. Nothing in this section 3.5(b) shall impose any duty on FPL or relieve the Licensee from reasonably maintaining adequate work forces readily at hand to, upon timely notification from FPL, handle the Rearrangement, repair, service and maintenance of the Device where the condition of Licensee's Device is hindering FPL's operations or from liability for failure to timely remove its Attachment from FPL Street Light Facilities or from its obligations under Article VI of this Agreement. 3.6. FPL Inspection. FPL reserves the right to inspect each new installation, upgrade or Rearrangement by the Licensee on FPL Street Light Facilities. FPL reserves the right to make surveys every five (5) years, or more frequently as conditions warrant, of the entire Licensee System on FPL's Street Light Facilities. Notwithstanding the foregoing, FPL shall have no duty under this Agreement to make such inspections or surveys. Such inspections or surveys made or not made shall not relieve the Licensee of any responsibility, obligation or liability assumed under this Agreement. All direct and indirect costs associated with these inspections shall be paid by the Licensee as stated in Article IV. In addition, if any Licensee violations are found, including violations of any code or FPL requirement, the Licensee shall make all corrections at the Licensee's expense, including Rearrangement of Facilities and of attachments of others. 3.7. FPL's Delivery of Electric Service. Licensee acknowledges that the primary role of the electric utility is to provide reliable electricity to its customers. FPL may de-energize Licensee's Device at any time if it deems necessary to assure safety or reliability of electric service to FPL customers with no liability or consequence therefore accruing to FPL in such event. Licensee also acknowledges that FPL provides no guarantee of continuous electric service to energize the Licensee's Devices. ARTICLE IV - LICENSE AND REMOVAL FEES. BILLING 4.1. Attachment Fees. a. Wireless Attachment Fee. For the convenience of the use 0 f FPL's facility, access to a vital network of consistent facilities operated by a single owner, and the ease of installation and normal operation of the Licensee's Device, Licensee shall pay FPL annually in advance an Attachment fee in the amount of one hundred six dollars and twenty cents ($ 106.20). effective January 1 S\ 2006 for the use of each FPL owned Street Light Bracket to which the Licensee's Device has been directly attached pursuant to this Agreement. The annual rate shall apply to all 7 Streetlight Wireless Attachment Attachments existing as of the effective date of that rate, regardless of the date of Attachment. Licensee expressly acknowledges and agrees that the contract rates have been specifically negotiated solely for the attachment of Licensee's Devices for providing communication services for Licensee's police department, fire department, emergency medical services, other public purposes as Licensee shall deem, in its reasonable judgment, to be in the best interest of the City of Miami Beach, and / or possible shared use with FPL and for no other purpose. b. Fee Adiustment and Billing. The Annual Fee shall be increased effective January 1st of each year based on the percentage change in the U.S. Department of Labor, Bureau of Labor Statistics, Consumer Price Index of all items, for the South Region Statistical Area which occurred during the 12 months ended on the previous [December 31 st.] If the Consumer Price Index does not increase, the fee shall remain the same. An Attachment to any FPL Street Light Bracket without notification of Attachment or without FPL's authorization shall be deemed to have been made on the effective date of this Agreement or the date of the last survey, whichever is more recent, but in no event longer than five (5) years. FPL's acceptance of payment for unauthorized Attachment shall not constitute a waiver of any other rights or remedies under this Agreement or at law. Payment shall be made within thirty-five (35) days of the date of invoice and under the terms and conditions provided in this Article IV. c. Unauthorized Attachment Fee. Licensee shall pay FPL an Unauthorized Attachment Fee in the amount of two and one-half (2 1/2) times the Attachment rate applicable during the year in which the Unauthorized Attachment to an FPL Streetlight Facility was discovered. It is agreed that this Unauthorized Attachment Fee constitutes liquidated damages and that it shall be paid from the date of discovery back to the date of the last physical survey of all Attachments to any FPL Streetlight Facilities or the effective date of this Agreement, whichever is more recent, but in no event longer than five (5) years. If an Unauthorized Attachment is identified by survey, the "last survey" shall mean the survey immediately prior to the survey that identified the Unauthorized Attachment. FPL's acceptance of the payment of the Unauthorized Attachment Fee or consent to waive payment of all or a part of the Unauthorized Attachment Fee shall not constitute a waiver of any of FPL's other rights or remedies under this Agreement or at law. Licensee shall have the burden of proving that an Attachment is an authorized Attachment by providing FPL with a copy of the FPL Attachment Permit. 4.2. Removal Fees. a. Bracket and Licensee Device Removal Fee. Licensee shall pay FPL a fee of sixty- five dollars ($65.00) for each Attachment that has been removed by FPL in the 2004 calendar year. b. Change in Fees. Beginning on January 1, 2005, and for each year thereafter, the fees for FPL removal of Licensee's Attachment shall be adjusted to reflect any 8 Streetlight Wireless Attachment change in all direct and indirect costs of FPL associated with performing such work. FPL shall notify the Licensee in writing no less than sixty (60) days prior to implementing a change, after the year 2005, in removal fees. 4.3. Licensee's Rearrangement Costs. If FPL rearranges or relocates its Street Light Facilities or changes the existing Street Light line alignment, Licensee shall remove, Rearrange or relocate its Facilities at its own expense. If such Rearrangement is reimbursable by the third party, Licensee is responsible for dealing directly with and obtaining its own reimbursement from such third party. Additionally, Licensee is responsible for coordinating the relocation of its Attachments with the relocation schedule of the third party. FPL shall not be responsible for delay claims caused by failure of Licensee to meet the relocation schedule of a third party. Payment for Rearrangement work will be made by the Licensee as stated in Article IV, sections 4.4 and 4.5 below. 4.4. Billing. a. Rearrangement/Removal Work. Upon completion of any removal work by FPL, FPL shall present Licensee with an invoice for the then current removal fee times the number of Attachments removed by FPL, which invoice shall be paid within thirty-five (35) days by Licensee. Upon completion of any Rearrangement, other than removal, FPL shall furnish the Licensee with a final and complete billing of all costs incurred in the Rearrangement. b. Inspecting, etc. In addition to the above charges, FPL shall bill the Licensee for the direct and indirect costs incurred for inspections, surveys, expenses and other charges (excluding Attachment fees) under this Agreement, as incurred. Payment shall be made within thirty-five (35) days of the date of invoice and under the terms and conditions provided in this Article IV. 4.5. Payment and Late Charges. The Licensee shall have thirty-five (35) days from the date of any invoice to object in detail to same, other than invoices for removal of the Licensee's Device. The parties in good faith shall attempt to resolve any objection to the invoiced amount within thirty (30) days of Licensee's notice of dispute. If Agreement cannot be reached, Licensee shall pay FPL the invoiced amount immediately upon acknowledgment that Agreement cannot be reached or upon the termination of the thirty (30) day resolution period, whichever is earlier. Upon resolution of the objection to the invoiced amount, FPL shall refund any amount due Licensee within fifteen (15) days with interest on any late refund being due at twelve percent (12%) per annum. Failure to provide FPL with written notice of dispute within thirty-five (35) days of the date of invoice shall constitute approval by the Licensee of the statement or invoice. If no objection is made by Licensee within the thirty-five (35) notice period, and payment is not mailed within thirty-five (35) days of the date of the statement or invoice, then a late payment charge may be assessed in the amount of one percent (1 %) of the amount due per month calculated on a daily basis or, ifless, the highest amount then permitted by Florida law. 9 Streetlight Wireless Attachment 4.6. Effect of Non-Payment. Licensee's failure to pay any non-disputed invoice after ten (10) days written notice of non-payment to Licensee by FPL shall constitute a default going to the essence of this Agreement and shall entitle FPL to cancel this Agreement. ARTICLE V - REMOVAL 5.1. Licensee's Expense. All removals of Licensee's Device from an FPL Street Light Facility shall be at the sole expense of the Licensee, not of FPL, regardless of whether removal is by FPL. 5.2. Notice by Licensee. The Licensee, after prior written notice to FPL, may remove its Device from any FPL Street Light Facility and shall give FPL written notice, in the form of Exhibit B, of actual removal within fifteen (15) working days after removal. Licensee shall exercise care and take precautions to avoid damage to the FPL Street Light Facility and to the attachments of others and shall immediately report any damage to FPL and to the owners of the damaged facilities. FAILURE TO FILE AN EXHIBIT B WITHIN FIFTEEN (15) DAYS AFTER REMOVALS WERE MADE MAY RESULT IN THE CONTINUATION OF ALL ATTACHMENT FEES UNTIL NOTICE HAS BEEN PROVIDED OR DENIAL OF NEW PERMITS. LICENSEE WILL BEAR ALL COSTS CAUSED BY LICENSEE'S DELINQUENCY. 5.3. Immediate Removal for Licensee's Lack of Authorization. If any court, governmental or regulatory authority of competent jurisdiction for any reason, by a final order or decision, declares that Licensee has no right to attach to any FPL Street Light Facility, the permit covering the use of the FPL Street Light Facility shall immediately terminate and Licensee shall remove all its Device from the affected FPL Street Light Facility. Subject to any limitations on Licensee's liabilities and indemnification obligations under Florida law, including but not limited to the Florida Constitution and Florida Statute Section 768.28, Licensee shall hold harmless, defend and indemnify FPL, its parent and affiliates, and their respective employees, agents, directors, officers and managers (the "FPL Entities") against all liabilities, cost and expense, including attorney's fees, arising from or associated with Licensee's actual or alleged failure to secure all necessary authorization. Removal by Licensee shall not affect FPL's termination rights under Section 7.1 of this Agreement. 5.4. Immediate Removal for Legal Action against FPL. Upon receipt from state, county or municipal authorities of a citation, notice of violation or other official notice that the use of an FPL Street Light Facility for an Attachment by the Licensee is forbidden, unauthorized or in violation of law, rule, regulation or ordinance, FPL may terminate the permit covering the use of the FPL Street Light Facility and Licensee shall remove its Device from the affected FPL Street Light Facility. Removal by Licensee shall not affect FPL's termination rights under Section 7.1 of this Agreement. Subject to any limitations on Licensee's liabilities and indemnification obligations under Florida law, including but not limited to the Florida Constitution and Florida Statute Section 768.28, if FPL chooses 10 Streetlight Wireless Attachment to contest any enforcement action or legal proceeding in which it is asserted that the use of an FPL Street Light Facility for an Attachment by the Licensee is forbidden, unauthorized or in violation of law, rule, regulation or ordinance, Licensee shall hold harmless and indemnify FPL against all liabilities, cost and expense, including attorneys fees arising from or associate with such action or proceeding. In no event shall FPL be required under the terms of this Agreement to secure any permit, franchise or other grant of governmental authority to allow the Licensee to attach its Device to an FPL Street Light Facility. 5.5. Removal after Elimination of FPL Facilities. Ifthe FPL Street Light Facilities to which any Licensee Device is attached are to be eliminated for any reason whatsoever, including at the option of FPL or for reasons related to replacement or relocation, FPL shall endeavor to provide Licensee with at least forty-five (45) days notice prior to the date upon which FPL eliminates the FPL Street Light Facility or Facilities. Licensee may elect to reattach its Device to the Street Light Facility once it has been replaced or relocated. If at the expiration of such period or upon the date of removal of FPL's Street Light Facilities, which ever occurs first, Licensee has not removed all of Licensee's Devices from the FPL Facilities, FPL, at the sole option of FPL, may remove Licensee's Devices. Such removal by FPL shall be at the sole cost of Licensee and shall consist of removing the Licensee's Device from the FPL Street Light Facility and placing the Licensee's Device at the base of the existing, new or relocated Street Light Facility. FPL shall have no liability whatsoever for any damage to Licensee's Devices caused by FPL in the removal and leaving of Licensee's Devices at the base of a Street Light Facility. FPL shall be responsible for bodily injury or death caused by FPL in the removal process. Provided, however, FPL shall have no liability of any kind whatsoever for theft or damage to property of any land or injury or death to persons caused by third parties or FPL after FPL has removed Licensee's Device, and subject to any limitations on Licensee's liabilities and indemnification obligations under Florida law, including but not limited to the Florida Constitution and Florida Statute Section 768.28, Licensee shall indemnify and hold FPL and the FPL Entities harmless from all such costs, expenses or liability. ARTICLE VI - RESERVATION OF RIGHTS. LIMITATION OF LIABILITY AND INSURANCE 6.1. Reservation of Rights and Release by the Licensee. FPL reserves to itself, its successors and assigns, the right to maintain and operate its Street Light Facilities in such manner as will best enable it to fulfill its own service, business, regulatory and safety requirements. Licensee agrees and understands that FPL shall not be liable to the Licensee or any person utilizing or relying on Licensee's Device for any interruption to service of Licensee or for interference with the operation of the Devices of the Licensee or arising in any manner out of the use of FPL's Street Light Facilities by the Licensee, FPL, or others. Where possible, FPL shall provide Licensee with prior written notice of planned interruption of service that will result in interference of Licensee's operations. The Licensee hereby release and waives all rights against FPL for such interruptions or interference and shall indemnify and hold FPL harmless from any such claims by Licensee or by Licensee's customers or contactors, subject to any limitations on 11 Streetlight Wireless Attachment Licensee's liabilities and indemnification obligations under Florida law, including but not limited to the Florida Constitution and Florida Statute Section 768.28. 6.2. No Consequential Damages. NEITHER PARTY SHALL BE LIABLE, EVEN IF GIVEN PRIOR NOTICE, TO THE OTHER PARTY OR ANY THIRD PERSON FOR SPECIAL, INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE PERFORMANCE OR NONPERFORMANCE OF THIS AGREEMENT, WHETHER DUE OR CLAIMED TO BE DUE TO NEGLIGENCE, TORT, STRICT LIABILITY, BREACH OF CONTRACT, BREACH OF WARRANTY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO DAMAGES IN THE NATURE OF LOST PROFITS OR REVENUES, LOSS OF USE OF FACILITIES OR EQUIPMENT, AND CLAIMS OF THIRD PARTIES OR INABILITY TO PERFORM CONTRACTS WITH THIRD PARTIES. FURTHERMORE, FPL MAKES NO OTHER WARRANTIES OR GUARANTEES, EXPRESS OR IMPLIED, CONCERNING THE STREET LIGHT FACILITIES OR ANY PART THEREOF LICENSED HEREUNDER, AND DISCLAIMS ANY WARRANTY IMPLIED BY LAW, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE EVEN IF ADVISED THEREOF. THE PROVISIONS OF THIS SECTION HAVE BEEN NEGOTIATED AND ARE INTENDED TO BE A COMPLETE EXCLUSION AND NEGATION OF ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, BY FPL IN ANY CAPACITY, WITH RESPECT TO ANY LICENSE UNDER THIS AGREEMENT OR ANY GOODS OR SERVICES PROVIDED INCIDENT TO SUCH LICENSE, WHETHER ARISING PURSUANT TO THE UNIFORM COMMERCIAL CODE OR ANY OTHER LAW NOW OR HEREAFTER IN EFFECT OR OTHERWISE. 6.3. Indemnification of FPL. a) Licensee's Sole Risk. Subject to any limitations on Licensee's liabilities and indemnification obligations under Florida law, including but not limited to the Florida Constitution and Florida Statute Section 768.28, Licensee agrees to indemnify and hold FPL, its parent, shareholder, directors, partners, stakeholders, affiliates, officers, managers, employees, agents, directors, representatives, servants and affiliated ad associated companies and their respective officers, directors, managers, employees, agents, representatives, servants and lor their assigns, harmless from and against any and all claims, demands, liability, losses, damage, costs, or expenses (including attorneys' fees and other costs of defense, of any nature or kind whatsoever, including, but not limited to, claims, demands and/or liability for personal injury to (including death of) any person whomever (including payments and awards made to Licensee's employees or others under any workers' compensation law or under any plan for employees' disability and death benefits) and for damage to any property whatsoever (including Licensee's System and FPL's electrical system) arising out of or otherwise resulting from the use, ownership, maintenance, of Licensee's System and Licensee's exercise of its rights under this Agreement, regardless of whether such claims, demands or liability are alleged to have arisen out ofFPL's status as the owner or operator of the facilities involved; provided, however, that the provisions of this section shall not apply if any such personal injury or property damage is held to have been caused by the gross negligence or intentional wrongdoing of FPL, its agents or employees. 12 Streetlight Wireless Attachment b) Incidental and Consequential Damages. Neither Party shall be liability in statute, contract, in tort (including negligence), strict liability or otherwise, to the other Party, its agents, representatives, parent, affiliate and associated companies and or assigns, from any incidental, consequential, punitive, special or multiple damages whatsoever, including but not limited to, loss of profits or revenue on work mot performed, loss of use of or under-utilization of Licensee's System or FPL's system, or loss of use of revenue or loss of anticipated profits, resulting from either Party's performance or non-performance of an obligation imposed under this Agreement. ] a. Licensee Risk of Vandalism. Licensee understands that the FPL Street Light Facilities are occasionally subject to acts of vandalism by third parties and Licensee agrees that FPL shall have no liability whatsoever to Licensee for such acts by third parties. and Licensee agrees that it shall hold FPL harmless from any acts of vandalism by third parties which result in damage to Licensee's Devices. 6.4. Insurance. a. ~ Licensee, prior to exercise of its rights under this Agreement, shall procure and maintain through the term of this Agreement an Owner's Protective Liability ("OPLI") Policy in the amount of Two Million Dollars ($2,000,000.00) per occurrence, combined single limit for bodily injury (including death) and property damage claims under, or in the performance or non-performance of this Agreement. FPL will assist Licensee in the purchase of the OPLI Policy. The City may secure the required insurance by endorsement to an existing Miami-Date County OPLI Policy. Licensee shall be shown as the designated contractor. Exclusion D of said policy is to be excluded. The OPLI Policy shall be primary over any other form of insurance maintained by FPL, its parent, subsidiaries or affiliated entities and each of their officers, directors, employees, agents and contractors (herein after in this Agreement collectively called the "Company"), and to any indemnity-related obligations of either Party pursuant to this Agreement. Since the OPLI Policy is on an "occurrence" basis, such insurance shall be maintained during the entire term of this Agreement. b. Certification. Prior to the exercise of its rights under this Agreement, and within thirty (30) days after the end of each fiscal year or at the renewal of the OPLO Policy, shall provide FPL with certification of all insurance required under this Agreement, executed by each insurer or by an authorized representative of each insurer. c. Reportinl! Accidents. The Parties agree to report to each other in writing within forty-eight (48) hours of the occurrence of any accident resulting in injury to any person, including death, and any property damage arising out of this Agreement. b 13 Streetlight Wireless Attachment 6.5. ContractorlUser Indemnification. The Licensee further agrees to use reasonable efforts to include the following indemnification in all contracts with contractors hereinafter that perform work on or aroundthe subject FPL Street Light facilities and users of Licensee's Deviceson the attachments: "The ContractorUser hereby agrees to release, indemnify, defend, save and hold harmless Florida Power & Light Company, its parent, subsidiaries, affiliates and their respective officers, directors and employees (hereinafter referred to as "FPL Entities"), from all claims, demands, liabilities and suits due to or caused by negligence of ContractorlUser for bodily injuries or death to person(s), service interruptions or damage to property resulting in connection with the performance of work by ContractorlUser and their respective contractors, subcontractors, agents or employees." 6.6. Contractor Insurance. The Licensee agrees to require its contractors that perform work on the FPL Street Light Facilities and on the Attachment to obtain insurance in the amounts set forth in Section 6.4 and to designate FPL as an additional named insured and to endorse the policy to be primary to any insurance obtained by FPL, its parent, subsidiaries or affiliates. The Licensee further agrees to verify with its Contractors that such insurance is in full force and effect. ARTICLE VII - MISCELLANEOUS PROVISIONS 7.1 Default and Termination. Unless otherwise stated herein, FPL at its option may terminate this Agreement, in whole or part, or one or more permits: (a) if upon written notice of noncompliance or default, Licensee fails within thirty (30) days to comply with any of the provisions of this Agreement or cure any default of its obligations under this Agreement; or (b) immediately in the event the Florida Public Service Commission determines FPL was imprudent in entering into the Agreement; or (c) in the event that the Florida Public Service Commission imputes additional revenues to FPL as a result of FPL entering into this Agreement or determines that the fees charged Licensee do not cover FPL's costs or results in electric customers cross-subsidization of non-regulated activities and Licensee fails to cure such imputation of revenues or cross-subsidization within thirty (30) days of written notice by FPL; or (d) upon twenty-four (24) hours notice of a violation of a NESC, NEC, OSHA or FPL Safety requirements set forth in Exhibit D, which violation creates an unreasonable risk of bodily injury, death or serious property damage, if such is not cured within twenty-four (24) hours of receipt of notice of a violation; or 14 Streetlight Wireless Attachment (e) in accordance with sections 4.5 and 4.6 herein, if Licensee has failed to pay any obligation hereunder; (t) except as provided in section 5.4, upon thirty (30) days written notice, if Licensee is unable to secure or loses the necessary licenses, permits, or other required authorization from any federal or state regulatory body; or (g) immediately, if Licensee files a voluntary petition in bankruptcy or an involuntary petition is filed against Licensee or Licensee becomes insolvent, shall generally not pay its debts as they become due, shall admit in writing its inability to pay debts, shall make a general assignment for the benefit of creditors or shall default under any unsubordinated loan or credit agreement. Licensee may terminate this Agreement if upon written notice of noncompliance or default, FPL fails within thirty (30) days to comply with any of the provisions of this Agreement or cure any default of its obligations under this Agreement. Licensee at its option may further terminate this Agreement at any time when all Licensee's Attachments have been removed, any related damage claims received within ninety (90) days of removal have been finally resolved and all amounts due and payable by Licensee under this Agreement have been duly paid. Notwithstanding any expiration of this Agreement, or the termination of this Agreement by FPL or by Licensee, all agreements and obligations of the Licensee under Section 3.2 and under Articles IV, V and VI shall survive for one (1) year following the termination or expiration of this Agreement. 7.2. Non-waiver. Failure to enforce or InSISt upon compliance with any of the terms or conditions of this Agreement shall not constitute a general waiver or relinquishment of any such terms or conditions, but the same shall be and remain at all times in full force and effect. 7.3. Non-exclusive Right. Nothing in this Agreement shall be construed to confer on the Licensee an exclusive right to make Attachments to FPL's Street Light Facilities in the area covered by this Agreement and any supplement thereto, and it is expressly understood that FPL has the unconditional right to permit any other person, firm or corporation to make Attachments to the same facilities, other than any Street Light Facilities abandoned by FPL and purchased by Licensee, in the area covered in this Agreement and supplements thereto. 7.4. No Property Right. No use, however extended, of FPL's Facilities, under this Agreement, shall create or vest in the Licensee any ownership or property rights in FPL's Street Light Facilities, but the Licensee's rights therein shall be and remain a mere license. Nothing herein contained shall be construed to compel FPL to maintain any of FPL's Street Light Facilities for a period longer than demanded by FPL's own service requirements. 15 Streetlight Wireless Attachment 7.5. Assignment. The Licensee shall not assign or transfer the privileges hereby granted without the prior written consent of FPL. 7.6. Successors and Assig:ns. Subject to the provisions of Sections 7.5 above, this Agreement shall extend to and bind the successors and assigns of the parties hereto. 7.7. Notice under this Agreement. All notices, communications and deliveries required or permitted under this Agreement shall be in writing and shall be delivered personally, sent by facsimile transmission between the hours of 8:30 a.m. and 4 p.m. on business days, with facsimile transmitted confirmation of receipt, sent by overnight commercial air courier (such as Federal Express), or mailed, certified or registered, postage prepaid, return receipt requested, to the parties at the addresses or facsimile numbers hereinafter set forth: To the Licensee: Patricia D. Walker Chief Financial Officer City of Miami Beach 1700 Convention Center Drive Miami Beach, FL 33139 Facsimile: 305-673-7795 To FPL: Thomas 1. Kennedy, P.E. Principal Engineer DRS/GO Florida Power & Light Company 9250 W. Flagler Street Miami, Florida 33174 Facsimile: (305) 228-5695 Notices shall be deemed given upon receipt in the case of personal delivery, five (5) days after deposit in the mail, or the next day in the case of overnight courier. Either party may from time to time designate any other address for this purpose by written notice to the other party in the manner set forth above. 7.8. Severability. Should any part of any paragraph or provision 0 f this Agreement (other than any of Sections 6.1 or 6.2) be determined by a court of competent jurisdiction to be illegal or in conflict with any applicable law, the validity of the remaining provisions shall not be impaired. 7.9. Applicable Law. The validity, interpretation and enforcement of this Attachment Agreement shall be governed by the laws of Florida without regard to conflict of law principles. The parties hereby irrevocably submit in any suit, action or proceeding arising out of or relating to this Agreement or any transactions contemplated hereby, to the exclusive jurisdiction of any court of competent jurisdiction located in Brevard County, Florida, and waive any and all objections to such jurisdiction or venue that they may have under the laws of any state or country, including, without limitation, any argument 16 Streetlight Wireless Attachment that jurisdiction, situs and/or venue are inconvenient or otherwise improper. Each party further agrees that process may be served upon such party in any manner authorized under the laws of the United States or Florida, and waives any objections that such party may otherwise have to such process. EACH PARTY HERETO HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY WRY IN RESPECT OF ANY LITIGATION BASED ON OR ARISING IN CONNECTION WITH THIS AGREEMENT OR ANY RELATED TRANSACTION OR INSTRUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN), ACTIONS OR OMISSIONS OF ANY PARTY RELATED HERETO OR THERETO. THIS PROVISION IS A MATERIAL INDUCEMENT FOR EACH PARTY TO ENTER INTO THE TRANSACTIONS PROVIDED FOR IN THIS AGREEMENT. 7.10. Authority to Execute. Each of the undersigned represents and warrants that he/she has full authority to execute this Agreement and the named party hereto. 7.11. No Offer. Submission of this Agreement for examination or signature does not constitute an offer by FPL of a license for any Attachment to the FPL Street Light Facilities. This Agreement shall be effective only upon execution by both parties. [Remainder of Page Intentionally Blank; Signatures Follow) 17 Streetlight Wireless Attachment IN WITNESS WHEREOF, the Parties have caused this Attachment to Street Lights Agreement to be duly executed the day and year first above written. LICENSOR: FLORIDA POWER & LIGHT COMPANY By: Print Name: Title: LICENSEE: CITY OF MIAMI BEACH By: Print Name: Title: Attest: City Clerk J;\IawIPEL\WiFi Attachmcnts\City of Miami Bcach 11-20-06 18 Streetlight Wireless Attachment Exhibit A Application for Attachment Permit 19 Streetlight Wireless Attachment Exhibit B Notice of Attachment/Removal 20 Streetlight Wireless Attachment Exhibit C Licensee's Device 21 Streetlight Wireless Attachment Exhibit D FPL Requirements 22 Streetlight Wireless Attachment I=PL October 19, 2006 PatriCia D. \V:iiker Chief Financial Office City of Miami Beach 1700 Convention Center Dnve Miami Beach. FL 33139 De3f Ms. \Valke:-: Thank you for your klter dated Cktohcr 16.2006, in reference to the Cit) of Miami Beach's (City) r<:qucsr 10 attach WIFI faCiliTies to FPL. assets. As a fo!l(m-up to your comersation with \1r. KenrH:dy. the Florida Public Service C'~Hl1rmssion (IPSe) rulcmaking proceedings associated with new construction and pole attachment standards are sllll pending, These new rules. which \villI1\.' voted on Novcmber 21. 2006, arc expected 10 change FPL: s current construction and pole attachment standards and rcquiremt'nts. Additionally, the current draft of the proposed rules reqUires dectric utilities to develop and subnllt for FPSC approval new eonstrucllon and attachment smndards that are conSistent with the DCV. rules 180 days after th,,> ruks lx;.;ome fina1. Because of this pending cbange in the construction and pll'e attachment standards. FPT. imposed a moralOrium in order to avoid issues and connicts, porentially resulting in additional co.sts to attaching entitie:; like the City Attaching to FPL's facilities before these rules and assOCiated standards arc lin~11. subjects the City to some financial risk. For example, the new standards might require an existing pole with a streetlight bracket to be replaced with a larger pole, requiring the removal of the old attachment and installation of the new attachment. These removal and installation costs of the attachments \vould be the City's responsibility. AddiTionally, ,f a WIFI attachment affected the loading: on a pole such that FPI. was now required to install a stronger pole to meet standards, the difference in cost bet\\ct'l1 the new pok and the exi,;ting pole would be the City's r(~sponslbibty . We understand the critical timing for the deplOyllH:m Ill' till: City's \VIFI net\\orK. FPL \Vlll allow the City to enter into FPI:s \VIFI pilot program and will grant your request to attach the WIFI nodes to FPL's stn:~(rtlighl brackets. Of course. this would be subject to the signing of FPL's Atwchnwnt to the Street Light Agreement and the City's acceptance of the risk associated with the new rules and standards, which I de::>cribed aboye. If you have any' questions on the above matters. please comact me at 305-552-3651, If the City would like to move iorward on this project, please work with .'vir. Kennedy to finali/e the agreement. Sl11cercly. Manny .'vLranda VI>, Distribution System Pcrtormance cc: Martha Chava Tom Kennedy