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98-22837 RESO RESOLUTION NO. 98-22837 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 LEASE AGREEMENT WITH LA GORCE PALACE, INC. TO LEASE ROOFTOP SPACE FOR MOUNTING RADIO ANTENNAE AND MICROWAVE DISHES, AND TO LEASE INTERIOR SPACE FOR THE PLACEMENT OF RELATED EQUIPMENT. WHEREAS, the City's 800 MHz trunked radio system requires a microwave receiver site at the north end of the City of Miami Beach to enhance radio coverage for the Police and Fire Departments and other local government users in the north end of the City; and WHEREAS, in 1996, the City was asked to remove its equipment from Parkview Point, where it was previously housed; and WHEREAS, the City was able to obtain permission from the La Gorce Palace, Inc., a condominium located at 6301 Collins Avenue, Miami Beach (La Gorce Palace), to relocate its equipment on its property, on a month-to-month basis, pending the negotiation of a permanent Lease Agreement; and WHEREAS, the City has negotiated a Lease Agreement with La Gorce Palace, Inc. to lease space on a yearly basis, at a rate of $13,000 per year, plus the cost of electricity; and WHEREAS, the City now seeks to execute the attached Lease Agreement with La Gorce Palace to mount radio antennae and microwave dishes on the rooftop space, and to house related equipment in an interior space; and WHEREAS, the term of the Agreement shall be for twenty (20) years, beginning on July 15, 1998, and WHEREAS, the annual Lease payment is $13,000 per year, with a three percent increase per year, plus the cost of electricity. NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and City Clerk are authorized to execute the attached Lease Agreement with La Gorce Palace, Inc. to lease rooftop space for mounting radio antennae and microwave dishes, and to lease interior space for the placement of related equipment. PASSED and ADOPTED this ISthday of July, 1998. APPROVED AS TO FORM & LANGUAGE & FOR EXECUTION q41~ I MA YOR CITY CLERK ~~ ity Attorney 7/dflJ Date PJK:JBG T:\AGENDA \JUL1598\CONSENT\LAGORCER.WPD 7/8/98 ~ IfIIOTOROLA Communications and Electronics Inc. Eastern Division 9321 NW. 39th Street Sunrise, FL 33351 June 19, 1998 Phyllis Koch, Director Information Technology City of Miami Beach 1100 Washington Avenue - 4th Floor Miami Beach. FL 33 I 39 Dear Phyllis: In response to a request from the City of Miami Beach, we ha,,:,e examined alternatives to the current receiver site at LaGorce Palace. In this review, we examined both private sites and city-owned sites. A summary of the review is as follows: Criteria Our review was based upon the basic general requirements for a radio tower as well as the very specific requirements, given the geographic and man-made obstacles in and around Miami Beach, to provide complete, clear radio signals to the north end of the city. The crit~ia included: · a site suitable for a 350 foot tower (the minimum necessary for clear communications throughout the north end of the city) · a location that would provide unobstructed radio signals on the city's specified frequency to the ciy's northern most borders. · a site that would avoid "shadowing." Shadowing is a condition where tall buildings "shadow" or block radio units from talking back to the radio system. When shadowing occurs, radios in the affected area can hear messages but cannot transmit back. City-Owned Sites As we stated in our letter dated March 17, 1998, no city properties meet the criteria. There are no city properties close enough to the north end to adequately provide coverage, nor are there any city-owned building of sufficient height to achieve radio reception as required. To properly serve the north end from a city-owned site, two alternatives exist: I. The city could construct a tower of sufficient height (350 feet) on one of it's current properties in North Beach, or 2. The city could utilize several existing buildings and establish new radio sites at lower heights. This, however, would require significant expenditures for receiver equipment at each site. Privatelv-Owned Sites Privately-owned buildings, other than LaGorce Plaza, also fail to meet the requirements. Other privately owned buildings are either not of sufficient height, not close enough to the north end radio area or are improperly positioned to avoid shadowing. While the multiple site situation described for city-owned sites would be an option to overcome these obstacle, it is assumed that in addition to the equipment purchases necessary, costs would incrementally increase as additional space is leased from various private entities. Conclusion Clearly, LaGorce Palace provides the best, and indeed the most cost-effective site for the Motorola radios in the north end of Miami Beach. It allows for cost-effective single site reception;. it prevents the city from having to construct a radio tower in North Beach; it is of sufficient height to provide clear radio transmissions to the city borders, and it is situated in the perfect location. Sincerely ~~~ Deborah Dri ver- Vamper Account Manager, Eastern Division MOTOROLA CITY OF MIAMI BEACH ITY HALL 1700 CONVENTION CENTER DRIVE MIAMI BEACH, FLORIDA 33139 IIp:\\ci.m iam i-beach. f1.us COMMISSION MEMORANDUM NO. Y- 19 - 9 g TO: Mayor Neisen O. Kasdin and Members of the City Co mission DATE: July 15, 1998 FROM: Sergio Rodriguez City Manager 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 LEASE AGREEMENT WITH LA GORCE PALACE, INC. TO LEASE ROOFTOP SPACE FOR MOUNTING RADIO ANTENNAE AND MICROWAVE DISHES, AND TO LEASE INTERIOR SPACE FOR THE PLACEMENT OF RELATED EQUIPMENT. ADMINISTRATION RECOMMENDATION Adopt the Resolution. FUNDING Funding is available from the Information Technology Internal Services Fund. BACKGROUND The City of Miami Beach maintains its own radio system to provide communication services for Police, Fire, and other City Departments. The system currently uses one main transmission tower (located behind Fire Station 2), a backup transmission site (located at Tower 41), and several additional sites that receive or relay the signal (e.g., Rebecca Towers, La Gorce Palace, Old City Hall). To provide adequate coverage, radio sites are needed at both the north and south perimeters of the City. Prior to 1996, the City maintained its northern receiver site at Parkview Point. In the fall of 1996, Parkview Point requested that the City remove its equipment from their property. The City was faced with the task of identifying an alternative site to relocate its communication equipment. Any site that was to be considered must meet two essential requirements: · The site must be within line-of-sight of Tower 41 · The site must be far enough to the north to insure adequate radio coverage to public-safety personnel who may have to respond to matters within buildings north of 65th Street APPROVED '- AGENDA ITEM C I I DATE~-I,CS~ 98 In response to this need, La Gorce Palace, Inc., a condominium located at 6301 Collins Avenue, Miami Beach (La Gorce Palace), offered rooftop and interior space to the City for the placement of its communications equipment. The La Gorce Palace site provided an immediate and cost-effective solution to the City's north end communications needs. As a result, the equipment was moved in the fall of 1996 to the La Gorce Palace site. ANAL YSIS The City has been renting space at La Gorce Palace at a rate of $13,000 per year plus the cost of electricity (at an average of $52 per month) since the fall of 1996. No written agreement exists and the City continues to rent on a month-to-month basis. As a result, the City's communication coverage north of 65th Street may be jeopardized due to the short-term nature of the month-to-month lease which may be subject to change, or cancellation, with a very limited notice period. A long-term lease is recommended in order to provide the City with more permanent protection for the transmission of vital radio signals in the northern end of the City. The City and Motorola, the manufacturer of the radio equipment used by the City, jointly evaluated all of the radiQ sites currently used by the City. This evaluation included sites owned or leased by the City. Motorola examined alternatives to the current receiver site at La Gorce Palace, including City-owned and privately-owned sites. Based on the evaluation of alternative sites, the Administration concluded that the La Gorce Palace site was the most cost-effective location for the radio equipment. Specifically, the La Gorce Palace site: · is within line-of-sight of Tower 41 providing uninterrupted transmissions . is close enough to the northern-most portions of the City and will provide requisite coverage for Public Safety officers working in the area . is properly located to avoid outgoing transmissions blockage from tall buildings ("shadowing") · is tall enough to fully reach the northernmost city limits . will save the City the expense of having to either (1) build a new radio tower or (2) lease property from multiple private entities and purchase the additional equipment for these sites . will save the City the expense of removing and re-installing the equipment currently located at the La Gorce Palace site A letter from Deborah Driver- V amper, Motorola's Eastern Division Account Manager, further detailing the issues associated with the evaluation of the alternative locations is attached for your information. In addition, the City is currently undergoing multi-million dollar upgrades to its 911 system, computer hardware and public safety systems. This upgrade has undergone extensive planning and will require tremendous manpower. Changing the location of radio equipment will likely disrupt any plans currently underway as dispatching equipment and other communications systems may require re-configuration to account for a new location. Given that the current location of the radio equipment works well, leaving the equipment in place with a more permanent Agreement would allow the upgrade projects to proceed unhindered in a cost-effective manner. The attached Agreement is for a term of20 years, at a rate of$13,OOO per year, with an annual increase of three percent per year. The City of Miami Beach will continue to pay for the costs of electricity associated with the use of the equipment. The Agreement also provides that the City may, at its sole discretion, terminate the Agreement with a one-year written notice to La Gorce Palace. The Agreement should provide the City with a cost effective and long term location while allowing sufficient alternatives to relocate the equipment should circumstances change. CONCLUSION The Agreement between La Gorce Palace and the City of Miami Beach provides an ideal location for the City's equipment, permanency in its communications infrastructure, and cost-savings associated with not having to lease additional space, and purchase additional equipment, or relocate existing equipment. The Administration recommends that the City Commission adopt the attached resolution approving the Agreement between the City and La Gorce Palace, Inc. to lease rooftop and interior space for the placement of radio-related equipment. SR:~:JD~,rJK Attacmnent 'W T:\AGENDA'JUL1598\CONSEN1\LAGORCEM.NEW 7/8/98.3 ~ ItIIOTOROLA Commun/clJtlons IJnd Electronics Inc. ElJstem Division 9321 N.w. 39th Street Sunrise, FL 33351 June 19, 1998 Phyllis Koch. Director Information Technology City of Miami Beach 1100 Washington Avenue - 4'h Floor Miami Beach. FL 33139 Dear Phyllis: In response to a request from the City of Miami Beach, we ha~e examined alternatives to the current receiver site at LaGorce Palace. In this review, we examined both private sites and city-owned sites. A summary of the review is as follows: Criteria Our review was based upon the basic general requirements for a radio tower as well as the very specific requirements, given the geographic and man-made obstacles in and around Miami Beach, to provide complete, clear radio signals to the north end of the city. The crit~ia included: · a site suitable for a 350 foot tower (the minimum necessary for clear communications throughout the north end of the city) · a location that would provide unobstructed radio signals on the city's specified frequency to the ciy's northern most borders. · a site that would avoid "shadowing." Shadowing is a condition where tall buildings "shadow" or block radio units from talking back to the radio system. When shadowing occurs, radios in the affected area can hear messages but cannot transmit back. Citv-Owned Sites As we stated in our letter dated March 17, 1998, no city properties meet the criteria. There are no city properties close enough to the north end to adequately provide coverage, nor are there any city-owned building of sufficient height to achieve radio reception as required. To properly serve the north end from a city-owned site, two alternatives exist: I. The city could construct a tower of sufficient height (350 feet) on one of it's current properties in North Beach, or 2. The city could utilize several existing buildings and establish new radio sites at lower heights. This, however, would require significant expenditures for receiver equipment at each site. Privatelv-Owned Sites Privately-owned buildings, other than LaGorce Plaza, also fail to meet the requirements. Other privately owned buildings are either not of sufficient height, not close enough to the north end radio area or are improperly positioned to avoid shadowing. While the multiple site situation described for city-owned sites would be an option to overcome these obstacle, it is assumed that in addition to the equipment purchases necessary, costs would incrementally increase as additional space is leased from various private entities. Conclusion Clearly, LaGorce Palace provides the best, and indeed the most cost-effective site for the Motorola radios in the north end of Miami Beach. It allows for cost-effective single site reception;. it prevents the city from having to construct a radio tower in North Beach; it is of sufficient height to provide clear radio transmissions to the city borders, and it is situated in the perfect location. Sincerely ~~~ Deborah Driver-Vamper Account Manager, Eastern Division MOTOROLA ~ NlOTOROLA Communications and Electronics Inc. Eastern Division 9321 N.W. 39th Street Sunrise, FL 33351 June 19, 1998 Phyllis Koch, Director Information Technology City of Miami Beach 1100 Washington Avenue - 4th Roor Miami Beach, FL 33139 Dear Phyllis: In response to a request from the City of Miami Beach, we ha~e examined alternatives to the current receiver site at LaGorce Palace. In this review, we examined both private sites and city-owned sites. A summary of the review is as follows: Criteria Our review was based upon the basic general requirements for a radio tower as well as the very specific requirements, given the geographic and man-made obstacles in and around Miami Beach, to provide complete, clear radio signals to the north end of the city. The crityria included: . a site suitable for a 350 foot tower (the minimum necessary for clear communications throughout the north end of the city) . a location that would provide unobstructed radio signals on the city's specified frequency to the ciy's northern most borders. . a site that would avoid "shadowing." Shadowing is a condition where tall buildings "shadow" or block radio units from talking back to the radio system. When shadowing occurs, radios in the affected area can hear messages but cannot transmit back. City-Owned Sites As we stated in our letter dated March 17, 1998, no city properties meet the criteria. There are no city properties close enough to the north end to adequately provide coverage, nor are there any city-owned building of sufficient height to achieve radio reception as required. To properly serve the north end from a city-owned site, two alternatives exist: I. The city could construct a tower of sufficient height (350 feet) on one of it's current properties in North Beach, or 2. The city could utilize several existing buildings and establish new radio sites at lower heights. This, however, would require significant expenditures for receiver equipment at each site. Privately-Owned Sites Privately-owned buildings, other than LaGorce Plaza, also fail to meet the requirements. Other privately owned buildings are either not of sufficient height, not close enough to the north end radio area or are improperly positioned to avoid shadowing. While the multiple site situation described for city-owned sites would be an option to overcome these obstacle, it is assumed that in addition to the equipment purchases necessary, costs would incrementally increase as additional space is leased from various private entities. Conclusion Clearly, LaGorce Palace provides the best, and indeed the most cost-effective site for the Motorola radios in the north end of Miami Beach. It allows for cost-effective single site reception;. it prevents the city from having to construct a radio tower in North Beach; it is of sufficient height to provide clear radio transmissions to the city borders, and it is situated in the perfect location. Sincerely ~tJ~-r Deborah Driver-Vamper Account Manager, Eastern Division MOTOROLA AGREEMENT BETWEEN THE CITY\ OF MIAMI BEACH AND LA GORCE PALACE, INC. t( (\ I J.~ 1 q, P This Agreement ("Agreement") is made as of the J.l day of~, ~, between La Gorce Palace, Inc. ("Assignor") and The City of Miami Beach, a Municipal Corporation of the State of Florida ("Assignee"). In consideration of the execution of this Agreement, the mutual terms, covenants and conditions contained herein and other good and valuable consideration, the receipt of which is hereby acknowledged from one party to the other, the Assignor and Assignee agree as follows: ARTICLE I PREMISES 1.1 Assignor hereby partially assigns to Assignee and Assignee hereby accepts partial assignment from Assignor, a right to use a portion of the building known as LA GORCE PALACE, a Condominium ("Building"), according to the Declaration of Condominium thereof as recorded in Official Records Book 15876, at Page 1056, of the Public Records of Dade County, Florida, as amended by the First Amendment to the Declaration of Condominium recorded in Official Records Book 16540 at Page 3702 of the Public Records of Dade County, Florida, as further amended by the Second Amendment to Declaration of Condominium recorded in Official Records Book 17004 at Page 4259 of the Public Records of Dade County, Florida, as further amended by the Third Amendment to Declaration of Condominium recorded in Official Records Book 17317 at Page 2172 of the Public Records of Dade County, Florida as further amended by the Fourth Amendment to the Declaration of Condominium recorded in Official Records Book 17353 at Page 1260 of the Public Records of Dade County, Florida. The Declaration of Condominium and aforedescribed Amendments thereto are collectively referred SXK\ 1742.0005\98106.3\ 102797 to as the "Declaration". The Building is located on that certain real property located at 6301 Collins Avenue, Miami Beach, Florida 33141, County of Dade, State of Florida and more particularly described in Exhibit "A" of the Declaration ("Parent Tract"). The portion of the Building hereby partially assigned to Assignee consists of certain positions on the roof of the Building ("Rooftop Space") for the mounting of various antennas, associated equipment, and microwave dishes, together with the right to use certain space consisting of no greater than 90 square feet of space located in the Mechanical Room, into which Assignee has placed equipment directly related to or associated with the use of the equipment and antennas mounted on the Rooftop Space (also known as the Equipment Room) on the roof of the Building ("Equipment Room Space"). The Rooftop Space shall be those certain positions on the roof of the Building upon which Assignee's existing antennas are mounted, which shall be at sufficient, but reasonable height, now or in the future, so that signals transmitted and received thereby will not be impeded by the Building or any other structure mounted thereon. The exact location on the Building where the antennas are mounted is depicted in Exhibit "A" (attached hereto and made a part hereof). The Rooftop Space and the Equipment Room Space are hereinafter collectively referred as the "S ite" and are more particularly described in Exhibit "A" attached hereto and made a part hereof. 1.2 Assignor assigns to Assignee, at Assignee's sole expense, the right to survey the Site. 1.3 Assignor agrees that, during the Term of this Agreement, (hereafter defined), Assignee shall have a non-exclusive easement for access to the Site on a twenty-four (24) hour basis, seven (7) days a week and across that portion of the Parent Tract and the Building necessary to access the Site from the nearest public right-of-ways adjacent to the Parent Tract, for the purposes of installation, maintenance, repair and removal of the Communications SXK\ 1742.(1005\98106. 3\ 102797 2 Equipment. Assignee's representatives and designated vendors servlcmg Assignee's Communications Equipment shall also be allowed access to said Site when service is needed; provided, however, that Assignee agrees that all routine maintenance and repairs shall be performed Monday through Friday, 9:00 am to 5:00 pm, except in cases of emergency, in which case, the provisions of the preceding sentence shall apply. Assignee further agrees that any employee, contractor, subcontractor, representative or agent directed by Assignee to install, maintain, remove or repair Assignee's Communications Equipment will be covered by the liability policy described in Article VII of this Agreement. Assignee is responsible for the cost of such policies. 1.4 In the event that Assignor proposes to assign roof space of the Building to another vendor, said vendor shall conduct, at its sole cost and expense, an engineering study to determine if vendor's equipment transmits radio waves which interfere with Assignee's 800MHz public safety communications system and/or microwave receiver and transmitter equipment. If the study reveals that such interference occurs, or is likely to occur, Assignor shall not permit the vendor to set up its equipment on the premises unless the vendor arranges his equipment in such a way as not to interfere with Assignee's equipment, as determined by Assignor in its sole discretion. If the study reveals no interference and the vendor is allowed to operate equipment on the subject premises, but later vendor's equipment if found to interfere with Assignee's equipment, the vendor's equipment will be shut down until the vendor corrects the interference problem. Said vendor(s), at its sole cost and expense, shall take all necessary steps to correct and eliminate such interference, which may include the addition of nonperformance degrading equipment to the vendor's equipment causing said interference. If such interference cannot be eliminated, Assignee and/or Assignor may each terminate the Agreement without further SXK\ 1742.0005\98106.3\ 102797 3 obligation on either party with respect to such equipment. Such termination shall occur by either party giving the other notice of termination in writing. 1.5 All other assignees from Assignor, if any, must operate all equipment under the guidelines of the Federal Communications Commission (FCC) and be in compliance with all applicable rules and regulations, including obtaining an FCC license prior to operating said equipment. 1.6 Assignee shall be responsible to Assignor for payment of electricity utilized by Assignee. Payment of electricity utilized during the previous month shall be made to Assignor with the current monthly rental payment. Calculation of payment shall be based on the actual kilowatt hours used times an average rate per kilowatt hour and any applicable demand charges. 1.7 An electrical sub-meter installed by Assignee will determine the actual usage. The rate per kilowatt hour will be determined annually as of October 1st, using Florida Power & Light (FP&L) current billing rates and billing structure for the Building. Assignee will notify Assignor in writing, with a copy to be sent to the President of La Gorce Palace Condominium Association, Inc., of the average rate per kilowatt based on FP&L's information. 1.8 Assignee agrees to provide for the installation and maintenance of air conditioning equipment of the approximate size of 2.5 tons or more if required by the heat load. Said air conditioning equipment shall be installed on the wall as shown in Exhibit "A". 1.9 Assignee shall also be responsible for payments of any other utilities and expenses whatsoever which are incurred by either Assignee or Assignor relative to Assignee's installation and usage of the Site. SXK\ 1742.0005\98106.3\ \02797 4 ARTICLE II TERM 2.1 The term of this Agreement shall be for twenty (20) years beginning on the 1st of September, 1996 ("Term"). 2.2 Assignee shall have the right to cancel this Agreement, at its sole discretion, without cause and for convenience, at any time by giving Assignor three hundred sixty five (365) days written notice in advance of said cancellation. ARTICLE III USE PAYMENT 3.1 During the first (1 st) year of this Agreement starting September 1. 1996, Assignee shall pay an annual payment, as consideration for the right to use the Rooftop Space and the Equipment Room Space ("Use Payment"), in the amount of Thirteen Thousand Dollars ($13,000.00), in equal monthly installments, plus applicable sales tax, to be paid on the first (1st) day of the month, in advance, to Assignor or its written designee. 3.2 Beginning with the second year of this Agreement, and for each successive year that this Agreement shall remain in effect, the monthly Use Payment for each successive year shall be increased by three (3 %) percent, at the commencement of each such year thereafter. 3.3 In addition to and along with the Use Payment and any other sums due under this Agreement, Assignee agrees to pay to Assignor any applicable sales tax or any other tax, fee or charge imposed or levied by any governmental authority with regard to the use of the Site. ARTICLE IV USE . 4.1 Assignor hereby grants permission to Assignee to install and operate the following SXK\ 1742.lJOO5\98 106.3\ 102797 5 and associated equipment on or in the Site for the purposes of constructing, maintaining and operating a communications facility and uses incidental thereto: 4.1.1 10 Ghz. transmitter and receivers, microwave dish antenna, UPS system, UPS batteries and battery charger system to be located in, on or over the Rooftop Space, now or any time during the Term of this Agreement. 4.1.2 Flexible coaxial transmission lines between antennas and communications equipment, to be anchored and installed on the Site in accordance with good and accepted engineering practices, together with the right to run sllch lines and other necessary lines between the Rooftop Space and the Equipment Room Space. 4.1.3 800 MHz. two-way radio communications, equipment conslstmg of two-way transmitters, receivers, accessories and other property to be installed in the Equipment Room Space. 4.1.4 At Assignee's option, Assignee shall have the right to locate an emergency generator on the Parent Tract at a place mutually acceptable to Assignor. Further, Assignor agrees that, in an emergency, Assignee shall be permitted to run temporary power lines between the Rooftop Space and the Equipment Room Space necessary to provide temporary emergency electrical power. 4.2 For purposes of this Agreement, all of Assignee's equipment, panels, generator, cables, wires, antennas, microwave dishes and accessories shall hereinafter collectively be referred to as the "Communications Facility" and any improvements made by Assignee to the Site pursuant to the terms of this Agreement are hereinafter referred to as the "Improvements". 4.3 Assignor hereby acknowledges and agrees that the Communications Facility and Improvements placed upon the Site by the Assignee are and shall remain the property of the Assignee and shall not be deemed to be a fixture upon the Site. Assignor grants Assignee a non-exclusive easement in, over, across and through the Parent Tract as may be reasonably required during construction, installation, maintenance, repair, replacement and operation of the Communications Facility and the Improvements. SXK\ 1742.0005\98106. 3\ 102797 6 4.4 Upon termination of this Agreement, Assignee shall remove its Communications Facility and Improvements from the Site within ninety (90) days of the termination date and, in the event the Communications Facility is transferred to another site, then within ninety (90) days of Assignee's final acceptance of the substitute site. Assignee shall also restore the Site to, as near as practical, a reasonable condition under the circumstances, except normal wear and tear, and except for enhancements made by Assignee to the Building pursuant to the terms of this Agreement. Assignee shall be responsible for the payment of a Use Payment and any other sums due to Assignor through the latter of 90 days or the day upon which Assignee has restored the Site to the condition described above in this Paragraph 4.4. This obligation of Assignee shall survive the termination of.this Agreement. 4.5 Assignee shall have the right to terminate this Agreement at any time upon the occurrence of any of the following events: 4.5.1 If the approval of or issuance of a license or permit by any agency, board, court or other governmental authority necessary for the construction and/or operation of the Communications Facility as now or hereafter intended by the Assignee (" Approvals ") cannot be obtained, or is revoked, or public opposition is unreasonable under the circumstances, as determined by Assignee, or Assignee determines the cost of obtaining and retaining such Approval is unreasonable in Assignee's sole discretion. 4.5.2 If Assignee determines, in its sole discretion, based upon soil bearing tests, radio frequency propagation tests, or interference with Assignee's reception or transmission, that the Site is not appropriate for the uses intended by Assignee (i) upon not less than thirty (30) days written notice of termination of this Agreement by Assignee pursuant to the terms of Subsections 4.5.1 or .4.5.2 above, or (ii) in the event that the Approvals described in Subsection 4.5.1 above have not been initially received by Assignee within three hundred sixty-five (365) days ("Cancellation Date") from the date of the final execution of this Agreement by all parties ("Execution Date"), this Agreement shall automatically terminate and neither party shall have any further rights or obligations arising hereunder, except that Assignee shall have the obligation to remove the Communications Facility and any Improvements from the Site, and except for those rights and obligations that are to survive the termination of this Agreement pursuant to the expressed terms of this Agreement. Notwithstanding anything contained herein to the contrary, the Cancellation Date shall be automatically extended to seven' hundred thirty (730) days from the Execution Date of this Agreement unless Assignee provides Assignor with notice to the contrary prior to the expiration of the original Cancellation SXK\ 1742.0005\98106.3\ 101797 7 Date. Following the Execution Date, Assignee shall make a diligent and best effort to obtain all of the Approvals. Assignor agrees to cooperate with Assignee in securing all of the Approvals referenced in Subsection 4.5~1, above, including, without limitation, any required site planlzoning approvals for the Site. Upon the request of Assignee, Assignor shall execute and deliver forms and applications as are necessary and appropriate to obtain such Approvals. Assignee reserves the right to contest and/or appeal, to the extent determined by Assignee, in Assignee's sole discretion, any adverse governmental or judicial decision or determination relative to the issuance of any such Approvals. All costs arising out of the procurement of such Approvals shall be borne by Assignee. ARTICLE V LIABILITY AND INDEMNITY 5.1 Subject to, and limited by, Article VII, Assignee agrees to indemnify and hold Assignor and the La Gorce Palace Condominium Association, Inc. harmless from all claims (including costs and expenses of defending against such claims, through counsel designated by Assignee) arising from failure of Assignee to comply with the terms, conditions, rules and regulations of the Declaration and the negligence or willful misconduct of Assignee or Assignee's agents or employees in or about the Site. Assignor agrees to indemnify and hold Assignee harmless from all claims (including costs and expenses of defending against such claims) arising from the acts or omissions of Assignor, Assignor's agents, employees, contractors, or other tenants of Assignor occurring in or about the Site. ARTICLE VI DEFAULTS AND REMEDIES 6.1 Notwithstanding anything in this Agreement to the contrary, Assignee shall not be in default under this Agreement until: 6. 1.1 Thirty (30) days after actual receipt of written notice of any non-monetary default from Assignor; provided; however, where any such default cannot reasonably be cured within said period, Assignee shall not be deemed to be in default under this Agreement if Assignee commences to cure such default within said period and thereafter diligently pursues such cure to completion ("Event of Default"). SXK\ 1742.CJOO5\98106. J\ 102797 8 6.2 Failure of Assignee to pay within five (5) days after the date when due any installment of Use Payment or any other sum herein required to be paid by Assignee shall constitute an automatic default on the part of Assignee for which no notice shall be required. In addition, interest at the annual rate of 18% per annum will be charged retroactive to the first day of the month for Use Payment that is not paid by the fifth day of the calendar month. ARTICLE VII INSURANCE Assignee is self-insured for all potential liability resulting from Assignee's negligence in accordance with and subject to the limitations of Section 768.28, Florida Statutes. The Assignee maintains a self-insurance program that will provide coverage for all bodily injury and property damage claims which may, as it relates to the Assignee's use or maintenance of the Site, arise from the negligent acts of the Assignee's employees or agents. Assignee agrees to provide Assignor with a notarized letter evidencing the extent of its insurance coverage. ARTICLE VIII PARTIAL ASSIGNMENT OF RIGHTS In entering into this Agreement with Assignor, Assignee accepts a partial quit claim assigmnent of whatever rights, if any, Assignor has to use the Site. Any and all rights of Assignor regarding the Site are set forth in the Declaration. Assignee hereby acknowledges that Assignee has been provided a copy of the Declaration prior to the execution of this Agreement and is satisfied with the contents thereof. Assignor makes no representations or warranties as to its rights to assign use rights to the Site except for such rights, whatever they may be, as set forth in the Declaration. Further, Assignor does not warrant to, nor does Assignor grant to, Assignee a covenant of quiet enjoyment to the use of the Site. Notwithstanding the foregoing, Assignor covenants and agrees that Assignor shall not interfere with Assignee's use of,the Site. By execution of this Agreement, Assignor partially assigns to Assignee only those rights to the SXK\ 1742.0005\98106. 3\ 102797 9 Site that Assignor has pursuant to the Declaration, and Assignee accepts same. Furthermore, Assignee acknowledges and understands that the Building is governed by the La Gorce Palace Condominium Association, Inc. (" Association ") and that this Agreement and all of its terms, covenants and conditions and Assignee's use of the Site is subject to the Declaration and shall comply with the rules and regulations promulgated from time to time by the Association. In the event any term, covenant and/or condition set forth in this Agreement in any way is contrary to and/or violates the provisions and intent of this Article VIII, the provisions and intent of this Article VIII shall prevail and be controlling. ARTICLE IX SUBORDINA TION AND NON-DISTURBANCE At Assignor's option, this Agreement shall be subordinate to any deed to secure debt, deed of trust, mortgage, or similar instrument by Assignor (collectively "Mortgage") which from time to time may encumber all or part of the Site; provided however, the holder of every such Mortgage shall recognize the validity of this Agreement in the event of a foreclosure of Assignor's interest, and Assignee's right to remain in occupancy of the Site as long as Assignee is not in default of this Agreement, by executing a non-disturbance agreement in a form reasonably acceptable to the Assignee. Assignee agrees to execute in a timely manner whatever instruments as may reasonably be required to evidence this subordination clause. In the event the Site is currently encumbered by a Mortgage, Assignor, not later than thirty (30) days after this Agreement is fully executed, and as a condition precedent to Assignee's obligation to pay Use Payment hereunder, shall obtain and furnish to Assignee a non-disturbance instrument in a form acceptable to Assignee. SXK\ 1742.000519& IOU.3\ 102797 10 ARTICLE X TITLE INSURANCE Assignee, at Assignee's option and expense may obtain title msurance on the Site. Assignor, at Assignee's expense, shall cooperate with Assignee's efforts to obtain such title insurance policy by executing documents or obtaining requested documentation as required by the title insurance company. At Assignee's option, should the Assignor fail to provide the requested documentation within thirty (30) days of Assignee's written request, or fail to provide the non-disturbance instrument(s), Assignee may withhold and accrue the monthly Use Payment until such time as the requested document(s) is received or Assignee may terminate this Agreement. ARTICLE XI HAZARDOUS SUBSTANCES In the event Hazardous Substances, as said term is hereinafter defined, are discovered on, in or under the Site as of the Commencement Date or thereafter, and such Hazardous Substances is located on, in or under the Site due to an act of or as a result of fault or negligence of Assignor or Assignee, as the case may be, Assignor or Assignee, respectively, at its sole expense, shall, without interference with the use of the Site, remove all such Hazardous Substances in accordance with all applicable laws, rules, ordinances, and regulations ("Removal"). Assignor or Assignee (the "Indemnifying Party") shall indemnify and hold Assignee or Assignor, as the case may be (the "Indemnitee") harmless against any claims arising out of such Hazardous Substances including all of Indemnitee's attorney's fees and costs ("Indemnity"). For the purposes hereof, the term "Hazardous Substances" shall mean pollutants, contaminants, toxic or hazardous substances or wastes, oil or petroleum products, flammable or any other substances whose nature and/or quantity of existence, use, release, manufacture or SXK\ 1742.0005\98' 06. 3\ I 02797 11 effect renders it subject to Federal, state or local environmental, health, community awareness or safety laws or regulations, now or hereafter enacted or promulgated by any governmental authority or court ruling, or any investigation, remediation or removal. Further, Hazardous Substances shall be required to be removed from the Site only if required by the proper governmental authorities. ARTICLE XII ASSIGNMENT With the exception of Assignee's principal, affiliates or subsidiaries of its principal or to any company upon which Assignee is merged or consolidated, Assignee shall not assign or encumber its interest in this Agreement or in the Site, without Assignor's prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed. Consent by Assignor to assignment shall be deemed to be unreasonably withheld if the proposed sub-assignee is of such financial standing and responsibility at the time of such assignment as to give reasonable assurance of the payment of all Use Payment and other amounts reserved in this Agreement and compliance with all of the terms, covenants, provisions and conditions of this Agreement. Should this Agreement be assigned to any entity other than the Assignee's principal, affiliates or subsidiaries, Assignor shall be free to renegotiate the lease terms and the Use Payment amount. If the assignment of this Agreement results in remuneration to Assignee by the sub- assignee, Assignor shall be free to renegotiate the Use Payment due. SXK\ 1742.0005\98106.3\ 102797 12 ARTICLE XIII NOTICES All notices hereunder must be in writing and shall be deemed validly given if sent by certified mail, return receipt requested, or by courier or by overnight delivery, addressed as follows (or to any other address that the party to be notified may have designated to the sender by like notice): ASSIGNEE: ASSIGNOR: With Copy to: With Copy to: With Copy to: City Manager City of Miami Beach 1700 Convention Center Drive Miami Beach, FL 33139 With copy to: City Attorney La Gorce Palace, Inc. 11098 Biscayne Blvd., Suite 402 Miami, FL 33161 With copy to: Property Manager Michael Bedzow, Esq. Bedzow, Korn, Brown, Wolfe & Lipton, P.A. 20803 Biscayne Blvd., Suite. 200 Aventura, FL 33180 La Gorce Palace Condominium Property Manager 6301 Collins Avenue Miami Beach, FL 33139 Spectrum Site Management (Assignor's Site Management Company of record, which is subject to change by Assignor) 510 Bering Drive, Suite 310 Houston, Texas 77057 Attn: Site Manager - La Gorce Palace ARTICLE XIV ASSIGNEE MORTGAGE Assignor covenants and agrees that, at all times during the continuance of this Agreement, and subject to Assignor's prior written approval, which approval shan not be unreasonably withheld, Assignee shall have the right to mortgage or convey by deed of trust or SXK\ 1742.0005\98106.3\ 102797 13 other instrument adequate for the purpose of securing any bona fide indebtedness of Assignee, this Agreement or the interest of Assignee created hereby, together with all of Assignee's right, title and interest in and to the Communications Facility, Improvements, and any other equipment, towers or trade fixtures placed on the Site by Assignee, provided that such mortgage, conveyance or encumbrance, nor any foreclosure thereof, nor any purchase thereunder, shall impair or abridge the rights of Assignor. In the event of any such mortgage conveyance (or assignment), Assignor's lien shall be superior and shall not be subordinate to any such debtor's lien on such Improvements, equipment, towers, or trade fixtures. With regard to Article XV of the Agreement, Assignor makes no representations, warranties or assurances as to Assignee's rights to mortgage or convey its' interest leased herein or with regard to Assignee's ability to secure financing. The failure of Assignee to mortgage or convey its' interest under this Agreement or to secure financing shall not in any way effect the validity of the Agreement or Assignee's obligations under the Agreement. ARTICLE XV CONDEMNATION If the whole of the Site or such portion thereof as will, in Assignee's sole judgment, make the Site unusable for the purposes herein provided, are condemned by any legally constituted authority for any public use or purpose, then in either of said events the Term hereby granted shall cease from the time when possession thereof is taken by public authorities, and the Use Payment shall be accounted for as between Assignee and Assignor as of that date. Any lesser condemnation shall cause the Use Payment payable hereunder to be reduced by such percentage as the area so condemned bears to the entire Site. Nothing in this provision shall be construed to limit or affect Assignee's right to an award of compensation of any eminent domain proceeding for the Improvements or Assignee's use interest hereunder. SXK\ 1742.0005\98106. 3\ 102797 14 ARTICLE XVI TESTS Assignee is hereby specifically permitted to conduct surveys, soil tests, radio coverage tests, and any other test or investigation needed to determine if the physical condition of the Site is suitable for Assignee's uses hereunder. Assignee may bring onto the Parent Tract or the Site any equipment and machinery, including vans, trucks and cranes, that may be reasonably necessary to conduct these tests, but Assignee shall be responsible for any damage to the common elements or property located on the Parent Tract or Site, caused by any machine brought thereon. With regard to this Article XVII, Assignee's rights set forth herein shall only exist to the extent permitted by the Declaration. ARTICLE XVII CONDITION OF THE BUILDING 17.1 Exclusive of the obligations and responsibilities of Assignee as set forth elsewhere in this Agreement, Assignee understands that the Association shall be responsible for operating, maintaining and repairing the Building in accordance with the Declaration. To the extent that any cost or expense arises or is incurred in relation to the operation, maintenance and repair of the Site as a result of any act or omission of Assignee, Assignee shall be responsible for such cost and expense. Assignor and Assignee shall each comply with all applicable Federal, State and local laws, ordinances, codes, rules and regulations pertaining to the Building and the Site, effective at the time of execution of this Agreement and as enacted thereafter, the violation of which will in anyway negatively effect the rights and/or use of Assignor or Assignee under this Agreement. The party failing to comply with any such law, ordinance, code, rule or regulation shall be solely responsible for any fines, penalties, levies, and/or other additional expenses as a result of non-compliance with the requirement of such authorities. Assignee understands and SXK\ 1742.0005\98106.3\ 102797 15 agrees that Assignor makes no representations on behalf of the Association and that Assignee holds Assignor harmless and shall indemnify and hold Assignor harmless in any matters which may arise between Assignee and the Association. 17.2 Assignee covenants and agrees that Assignee's Communications Equipment, its installation, operation and maintenance will: 17.2. 1 Not damage the Building structure and accessories thereto. 17.2.2 Comply with all applicable rules and regulations of the FCC and the City, County and State which has jurisdiction with respect to the Communications Facility. 17.2.3 If the Building is damaged for any reason so as to render it substantially unusable for Assignee's use, Use Payment shall abate for such period while the Association, at its expense, if required, pursuant to the Declaration, restores the Building to its condition prior to such damage; provided however, in the event the Association fails to repair the Site within thirty (30) days from the date of such damage, Assignee shall have the right to terminate this Agreement with no further obligations hereunder. ARTICLE XVIII MISCELLANEOUS 18.1 This Agreement contains all agreements, promises and understandings between Assignor and Assignee and no verbal or oral agreement, promises or understandings relating to the Site, the Building, or the Parent Tract shall be binding upon either Assignor or Assignee in any dispute, controversy or proceeding at law. Any addition, variation or modification to this Agreement shall be void and ineffective unless made in writing and signed by the parties. If any term or provision, or any portion thereof, of this Agreement, or the application thereof to any person or circumstances shall, to the extent, be invalid or unenforceable, the remainder of this Agreement, or the application of such term or provision to persons or circumstances, other than SXK\1742.0005\98106.3\ 102797 16 those as to which it is held invalid or unenforceable, shall not be affected thereby, and each term and provision of this Agreement shall be valid and enforced to the fullest extent permitted by law. 18.2 This Agreement and the obligations of the parties, and the performance thereof shall be governed, interpreted, constructed and regulated by the laws of the State of Florida. 18.3 This Agreement shall inure to the benefit of and be binding upon the heirs, personal representatives, successors and assigns of the parties hereto. 18.4 Neither this Agreement nor any notice of it shall be recorded m any Public Records. 18.5 Whenever under this Agreement the consent or approval of either party is required or a determination must be made by either party, no such consent or approval shall be unreasonably withheld or delayed, and all such determinations shall be made on a reasonable basis and in a reasonable manner. 18.6 If any article, paragraph, section, provision, sentence, clause, or portion of this Agreement is determined to be illegal, invalid or unenforceable, such determination shall in no way affect the legality, validity or enforceability of any article, paragraph, section, provision, sentence, clause or portion of this Agreement and any such affected portion or provision shall be modified, amended, or deleted to the extent possible and permissible to give the fullest effect to the purposes of the parties and of this Agreement, and the parties hereby declare that they would have agreed to the remaining parts of this Agreement if they had known that such provisions or portions thereof would be determined to be illegal, invalid, or unenforceable. 18.7 Captions and headings are for convenience of reference only and in no way shall be used to construe or modify the provisions set forth in this Agreement. 18.09 Time is of the essence in this Agreement. SXK\ 1742.0005\98106.3\ 102797 17 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above. ASSIGNOR Signed, sealed and delivered in the presence of: / LA GORCE PALACE, INC. '''- . _i- - r-. ,--,',1/1 /: Witness I I: ---r: I · . f'" (" . I.' /, ~.1 ' , 'i /' BY~~ + -----=--::::::::----. CAMICO G. BeANCO Printed Name FAITH WARTMAN Printed Name ~ I , , ~ 7r ~ . tness tf ~ (e )~J)~lTu VICE PRESIDENT-CONTRO~CER Title (. I i - REGINA WEBSTER 11098 BISCAYNE B~VD. ,SUITE 402 Address MIAMI, FC 33161 Printed Name Executed on 2 9 t h October day of ,1997. STATE OF FLORIDA ) ) SS.: COUNTY OF DADE ) The foregoing instrument was sworn to before me this 29 t h day of 0 c t 0 b e r , 1997 by earn i 1 n G. B 1 anr.n , as Vi r.P. Prp.s i dp.nt of La Gorce Palace, Inc., a Florida corporation, who is personally known to me or who produce F 1 or' Dr i ver 's '~i cense as identification and whoX~k)<(did not) take an oath. .~ My commission expires: SXK\ 1742.0005\98106, 3\ 102797 18 ASSIGNEE Signed, sealed and delivered in the presence of: CITY OF MIAMI BEACH Wit~~ ~.~ S~~ \a..vJI L-Lv By: Mayor J~~ . Printed Name Neisen Kasdin Printed Name Mayor Title Mff([r/t Printed Name 1700 Convention Center Drive Address Ro ert Parcher, City Clerk Miami Beach, Florida 33139 Executed on Z:lr\J day of ~Ju \ Y , t99T. I (t ~ .0 APPROVED AS TO FORM & lANGUAGE & FOR EXECUTION STATE OF FLORIDA) ) SS.: COUNTY OF DADE ) \ (1~t3 "I ,The foregoinjS instrument was sworn to before me thisd3 feiy of (JJJ l , ~by IVels,;.] (({[,/rd. as M~,v- of The City of Miami Beach~1 Corporation of the State of Florida, ho IS personally known .t2~..!!le or who produced. ag iElentification and who ~(did not) take an oath. 41t1liL City Attomey I 'i 6~t; 4JJ~/3HU~ NOTARY PUBEIC, State of Florida at Large l//It~ q.(qUC-hfl1j) My commission expires: LlLLUI,:'J lJEI\UCHAMl' NOTAR Y PUBLIC ST ATE OF FLORlDA COMMISSION NO. CC738372 MY COMMISSION EXP. APR. 29,2002 SXK\ 1742.0005\98106.3\102797 19 P::l :r: f-c Ztil ....U :r:< ....:l ~U< ~<p.. 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