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HomeMy WebLinkAboutClear Wireless LLC Telecommunications Tower Collocation Consent Agreement - 2009 12 07 Clearwire Site Number: FL- ORL0274 TELECOMMUNICATIONS TOWER COLLOCATION CONSENT AGREEMENT THIS COLLOCATION CONSENT AGREEMENT ( "Agreement ") is entered into this 8 day of December , 2009 by and between the City of Winter Springs, a Florida municipal corporation ( "City"), and Clear Wireless LLC, a Nevada limited liability company authorized to conduct business in Florida ( "Clear Wireless "). Whereas, City is the owner of real property located within the City of Winter Springs on which exists a monopole cell tower, as more-particularly described herein. Whereas, City entered into that certain Lease Agreement with Bell South Mobility, LLC, dated November 7, 2000, which was later assigned to Crown Castle South, LLC. ( "Crown Castle "); and Whereas, Bell South constructed a one hundred sixty -five foot (165') free standing communications monopole which is designed with spaces to collocate the antennas of three (3) commercial mobile radio service operators ( "Tower "); and Whereas, Clear Wireless desires to collocate on the Tower and sublease a portion of the Leased Property from Crown Castle for purposes of operating and maintaining communication equipment and related facilities; and Whereas, City desires to consent to the sublease between Clear Wireless and Crown Castle and to collocating its communication facilities on the Tower under the terms and conditions of this Agreement. NOW, THEREFORE, in consideration of the mutual promises, covenants and agreements herein contained, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound hereby agree as follows: 1.0 Recitals. The foregoing recitals are true and correct and hereby incorporated herein by this reference. 2.0 Consent to Collocation. The City hereby consents to Clear Wireless collocating their communications and related facilities on the Tower and on the Leased Premises. In furtherance of consenting to the collocation, the City also consents to Clear Wireless entering into a sublease with Crown Castle for the use of a portion of the Leased Property ( "Subleased Parcel ") and the Tower. The Subleased Parcel is described as "cell tower site" and is legally described on Exhibit "A," which is attached hereto and incorporated herein by this reference. The use of the Subleased Parcel shall be limited to operating and maintaining communications equipment and related facilities in order to effectuate the collocation. City also consents to Clear Wireless' use of the non - exclusive access and utility easement to the Leased Property. The easements were granted to Bell South by the City Page 1 of 8 Ciearwire Site Number: FL- ORL0274 and are legally described under the Lease Agreement. The easement legal descriptions are attached hereto as Exhibit "A" and incorporated herein by this reference. Clear Wireless agrees to fully comply with the terms and conditions of the aforementioned easements and further agrees that Clear Wireless shall not in anyway overburden the easements or interfere with the City's and any other authorized user's right to use the easements. 3.0 Term. The term of this Agreement shall commence on the date that the last party hereto fully executes this Agreement. The City acknowledges and agrees that Clear Wireless shall have the right to sublease the Subleased Parcel and collocate on the Tower for a term that coincides with the Term in the Lease Agreement, dated November 7, 2000. This Agreement shall automatically renew at the same time as the Lease Agreement unless: (i) Clear Wireless has provided the City written notice of its desire not to renew prior to the renewal; (ii) the City has terminated this Agreement pursuant to paragraph 23 of this Agreement; (iii) Clear Wireless is in breach of this Agreement, in which case, this Agreement may only be renewed if the City agrees to the renewal in writing and Clear Wireless cures the breach; or (iv)Clear Wireless is in breach of the Sublease Agreement with Crown Castle, in which case, the Agreement may only be renewed if the City and Crown Castle agree to the renewal in writing and Clear Wireless cures the breach. 4.0 Termination of Lease Agreement. If the Lease Agreement is terminated by Crown Castle or City and Clear Wireless desires to continue occupying and possessing the Subleased Parcel and Tower space, Clear Wireless may do so by entering into a written lease agreement with the City which shall require direct payment to the City of all rental proceeds required by the Lease Agreement. Clear Wireless shall have the right, but not obligation, to terminate this Agreement without penalty upon 30 days prior written notice to the City if, at any time, Clear Wireless terminates its agreement with Crown Castle. Upon any such termination, neither party hereto shall have any further obligation to the other except for those obligations listed in Section 34.0 herein and for those provisions which survive the expiration or termination of this Agreement. 5.0 No Assignment. This Agreement shall not be assigned or transferred, unless the assignment is consented to in writing by the City. 6.0 Third Party Rights. This Agreement is not a third party beneficiary contract and shall not in any respect whatsoever create any rights on behalf of any party not expressly a party to this Agreement. 7.0 Further Assurances. From and after the execution of this Agreement, each of the parties hereto shall fully cooperate with each other and perform any further act(s) and execute and deliver any further documents which may be necessary or desirable in order to carry out the purposes and intentions of this Agreement. 8.0 Severability. If any provision of this Agreement is held to be invalid, void, or unenforceable, the remaining provisions shall nevertheless remain in full force and effect, unless the absence of the invalid, void or unenforceable provision or provisions causes this Agreement to fail Page 2 of 8 Clearwire Site Number: FL- ORL0274 in its essential purposes. 9.0 Governing Law and Venue. This Agreement shall be construed and enforced in accordance with the laws of the State ofFlorida. The parties further agree that in any dispute between them relating to this Agreement, exclusive jurisdiction shall be in the state circuit courts located in Seminole County, Florida, and in the federal district court in Orlando, Florida, any objections as to jurisdiction or venue in such courts being expressly waived. 10.0 Attorney's Fees. In the event any litigation or controversy arises out of or in connection with this Agreement between the parties hereto, the prevailing party in such litigation or controversy shall be entitled to recover from the other party or parties all reasonable attorney's fees and paralegal fees, expenses and suit costs, including those associated with any appellate or post - judgment collection proceedings. 1 1.0 Non - Waiver. No delay or failure by either party to exercise any right under this Agreement, and no partial or single exercise of that right, shall constitute a waiver of that or any other right, unless otherwise expressly provided herein. 12.0 Notices. Any notice, request, instruction, or other document to be given as part of this Agreement shall be in writing and shall be deemed given under the following circumstances: when delivered in person; or three (3) business days after being deposited in the United States Mail, postage prepaid, certified or registered; or the next business day after being deposited with a recognized overnight mail or courier delivery service; or when transmitted by facsimile or telecopy transmission, with receipt acknowledged upon transmission; and addressed as follows (or to such other person or at such other address, of which any party hereto shall have given written notice as provided herein): To City of Winter Springs: City Manager 1126 East S.R. 434 Winter Springs, Florida 32708 PH: (407) 327 -5957 FAX: (407) 327 -4753 To Clear Wireless: Clear Wireless LLC 4400 Carllion Point Kirkland, WA 98033 Attn: Site Leasing PH: (425) 216 -7600 FAX: (425) 216 -7900 W /copy to: Clear Wireless LLC 4400 Carillon Point Kirkland, WA 98033 Attn: Legal Department Page 3 of 8 • Clearwire Site Number: FL- ORL0274 13.0 Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered, shall be an original; but such counterparts shall together constitute but one and the same instrument. 14.0 Public Record. It is hereby specifically agreed that any record, document, computerized information and program, audio or video tape, photograph, or other writing of the Clear Wireless related to this Agreement, may be deemed to be a Public Record whether in the possession or control of the City or Clear Wireless. Said record, document, computerized information and program, audio or video tape, photograph, or other writing of Clear Wireless is subject to the provisions of Chapter 119, Florida Statutes, and may not be destroyed without the specific written approval ofthe City. Upon request by the City, Clear Wireless shall promptly supply copies of said public records to the City. All books, cards, registers, receipts, documents, and other papers in connection with this Agreement shall during normal business hours of Clear Wireless be open and freely exhibited to the City for the purpose of examination and /or audit. 15.0 Interpretation. The City and Clear Wireless have participated in the drafting of all parts of this Agreement. As a result, it is the intent of the parties that no portion of this Agreement shall be interpreted more harshly against either of the parties as the drafter. 16.0 Independent Contractor. Clear Wireless shall be considered an independent contractor under this Agreement. 17.0 Entire Agreement. This Agreement represents the entire and integrated Agreement between the parties and supersedes all prior negotiations, representations, or Agreements, either oral or written, and all such matters shall•be deemed merged into this Agreement. 18.0 Sovereign Immunity. Notwithstanding any other provision set forth in this Lease Agreement, nothing contained in this Lease Agreement shall be construed as a waiver ofthe Lessee's right to sovereign immunity under Section 768.28, or other limitations imposed on the Lessee's potential liability under state or federal law. As such, the Lessee shall not be liable, under this Agreement for punitive damages or interest for the period before judgment. Further, Lessee shall not be liable for any claim or judgment, or portion thereof, to any one person for more than one hundred thousand dollars ($100,000.00), or any claim or judgment, or portion thereof, which, when totaled with all other claims or judgments paid by the State or its agencies and subdivisions arising out of the same incident or occurrence, exceeds the sum of two hundred thousand dollars ($200,000.00). This paragraph shall survive termination of this Lease Agreement. 19.0 General Liability Insurance. Clear Wireless shall purchase and maintain, at its own expense, such general liability insurance and automobile liability insurance to cover claims for damages because of bodily injury or death of any person or property damage arising in any way out of Clear Wireless's use of the Subleased Parcel, Tower, or utility and ingress and egress easements. The insurance shall have minimum limits of coverage of $1,000,000.00 per occurrence combined Page 4 of 8 Clearwire Site Number: FL- ORL0274 single limit for bodily injury liability and property damage. This shall include, but not be limited to, automobile liability of owned vehicles, hired and non -owned vehicles, and employee non - ownership. All insurance coverage shall be with insurer(s) approved by the City Manager and licensed by the State of Florida to engage in the business of writing of insurance. The City shall be named on the foregoing insurance policies as "additional insured." Clear Wireless shall cause its insurance carriers to furnish insurance certificates and endorsements specifying the types and amounts of coverage in effect pursuant hereto, the expiration dates of such policies, and a statement that no insurance under such policies will be canceled without thirty (30) days prior written notice to the City in compliance with other provisions of this Agreement. If the City has any objection to the coverage afforded by or other provision of the insurance required to be purchased and maintained by Clear Wireless in accordance with this paragraph on the basis of its not complying with the Agreement, the City shall notify Clear Wireless in writing thereof within thirty (30) days of the date of delivery of such certificates and endorsements to the City. The City, at its discretion, reserves the right to require Clear Wireless to obtain reasonable increases in the insurance coverage set forth in this paragraph. Clear Wireless shall continuously maintain such insurance during the term of this Agreement in the amounts, type, and quality as required by this paragraph. 20.0 Indemnification and Hold Harmless. Clear Wireless shall indemnify and hold harmless the City and its employees, officers, attorneys, agents, and contractors from and against all claims, losses, damages, personal injuries (including but not limited to death), or liability to the person or property (including reasonable attorney's fees through any and all administrative, trial, post judgment and appellate proceedings), directly or indirectly arising from the negligent acts, errors, omissions, intentional or otherwise, arising out of or resulting from Clear Wireless' and its employee's, agent's, and contractor's use and occupancy of the Subleased Parcel, Tower, and utility and ingress and egress easements. This indemnification shall survive the expiration or termination of this Agreement. The indemnification provided above shall obligate Clear Wireless to defend at its own expense or to provide for such defense, at the sole option of the City, as the case may be, of any and all claims of liability and all suits and actions of every name and description that may be brought against the City or its employees, officers, and attorneys which may result from Clear Wireless' and its employee's, agent's, and contractor's use and occupancy of the Subleased Parcel, Tower, and utility and ingress and egress easements. In all events the City shall be permitted to choose legal counsel of its sole choice, the fees for which shall be subject to and included with this indemnification provided herein, as long as said fees are reasonable. 22.0 Standard of Care. In using the Subleased Parcel, Tower, and utility and ingress and egress easements, Clear Wireless shall use that degree of care and skill ordinarily exercised, under similar circumstances by reputable members of its profession practicing in the same or similar locality. 23.0 Termination. If Clear Wireless defaults in fulfilling any of the covenants of this Agreement and such default shall continue for sixty (60) days after Clear Wireless' receipt ofwritten notice from the City specifying the nature of said default, or, if the said default so specified shall be Page 5 of 8 Clearwire Site Number: FL- ORL0274 of such a nature that the same cannot be reasonably cured or remedied within such sixty (60) days and Clear Wireless shall not in good faith commence the curing or remedying of such default within such sixty (60) days and shall not thereafter diligently proceed therewith to completion, then in any one or more of such events this Agreement shall terminate and come to an end as fully and completely satisfied and Clear Wireless shall then quit and surrender the Subleased Parcel and the right to use the utility and ingress and egress easements as provided herein and remove its communications equipment and related facilities as set forth in paragraph 34.0 24.0 Clear Wireless' Signatory. The undersigned person executing this Agreement on behalf of Clear Wireless hereby represents and warrants that he /she has the full authority to sign the Agreement on behalf of Clear Wireless and to fully bind Clear Wireless to the terms and conditions set forth in this Agreement. 25.0 Not Recordable. The parties understand and agree that neither this Agreement nor any sublease shall be recorded in the public records. 26.0 Hazardous Materials. Clear Wireless represents and warrants that its use of the Subleased Parcel, Tower, and the utility and ingress and egress easements will not generate any hazardous substance and that it will not in violation of any applicable law or regulation, store or dispose on or near the Subleased Parcel, Tower and the utility and ingress and egress easements, any hazardous substance. Clear Wireless shall indemnify and hold harmless the City and its employees, officers, attorneys, agents, and contractors from and against all claims, losses, damages, personal injuries (including but not limited to death), or liability to the person or property (including reasonable attorney's fees through any and all administrative, trial, post judgment and appellate proceedings), directly or indirectly arising from the generation, storage, disposal, transportation or use of Hazardous Materials by Clear Wireless and its employees, agents, and contractors on the Subleased Parcel, Tower and the utility and ingress and egress easements. For purposes of this Agreement, Hazardous Materials shall mean gasoline, petroleum and other petroleum by products, asbestos, explosives, PCBs, radioactive material or any "hazardous" or "toxic" material, substance, or waste which is defined by those or similar terms or is regulated as such under any statute, law, ordinance, rule or regulation of any governmental authority having jurisdiction over the Subleased Parcel, Tower or utility and ingress and egress easements or any portion thereof or its use, including any material, substance or waste which is defined as: (i) a "hazardous substance" under the Water Pollution Control Act (33 U.S.0 Section 1301 et seq., as amended); (ii) "hazardous waste" under the Resource Conservation and Recovery Act of 1976 (42 U.S.C. Section 6901 et seq., as amended); (iii) a "hazardous substance" or "hazardous waste" under the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended or any other superfund law); (iv) a "hazardous chemical" under 29 C.F.R. Part 1910; or (v) a "pollutant" or "contaminant" under 42 U.S.C. Section 9601. This indemnification shall survive the expiration or termination of this Agreement. 27.0 Liens. Clear Wireless shall keep the Subleased Parcel and utility and ingress and egress easements free from any liens arising out of any work performed for, materials furnished to, or obligations incurred by or on behalf of Clear Wireless. Clear Wireless shall also hold the City harmless against any such liens and shall take immediate action to remove any such lien should one Page 6 of 8 Clearwire Site Number: FL- ORL0274 be filed against any property owned by the City as a result of work performed or as a result of under this Agreement for or on behalf of Clear Wireless. 28.0 Condemnation. If the whole of the Subleased Parcel or utility and ingress and egress easements, or such portion thereof as will make said parcel unusable for the purposes herein subleased, 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 rental shall be accounted for as between Clear Wireless and City as of that date. 29.0 Damage or Destruction. Notwithstanding any other provision of this Agreement, Clear Wireless shall bear the risk of loss or damage to its communications equipment and personal property on the Subleased Parcel, Tower, and utility and ingress and egress easements, except to the extent such loss or damage is caused by the negligence or willful misconduct of the City. Under no circumstances under this Agreement will the City be liable to Clear Wireless for economic loss, lost profits, loss of business, loss of market share, or any other incidental, punitive, special, or consequential damages of any nature whatsoever even if informed ofthe possibility of such damages. 30.0 Maintenance. Clear Wireless shall be solely responsible for maintaining its communications equipment and personal property in a safe and good condition, working order, and repair. Clear Wireless shall be solely responsible for promptly repairing damage to its communications equipment and personal property. Clear Wireless shall keep the Subleased Parcel, Tower and utility and ingress and egress easements free of debris and anything dangerous, noxious, or offensive in nature which would crease a hazard or undue vibration, heat, or noise. 31.0 Utilities. Clear Wireless shall provide for its own utilities and shall be responsible for paying such utilities. 32.0 Taxes. Clear Wireless shall pay any and all taxes and assessments levied upon Clear Wireless' communications equipment and personal property used or kept on the Subleased Parcel, Tower, or utilities and ingress and egress easements. 33.0 Rent. Clear Wireless acknowledges and agrees that Clear Wireless shall pay the City one thousand and no /100ths dollars ($1,000.00) per month to sublease the Subleased Parcel, plus applicable taxes and assessments. Clear Wireless shall remit its rental payments directly to the City. Should Clear Wireless fail to make the rent payments under the sublease, the City shall have the right to immediately terminate this Agreement and in such case Clear Wireless shall also immediately remove its communications and related facilities from the Subleased Property and utility and ingress and egress easements. 34.0 Removal of Equipment. Upon termination ofthis Agreement, Clear Wireless shall, within sixty (60) days, remove all of its communications equipment and related facilities from the Subleased Parcel and utility and ingress and egress easements and restore said property to its original Page 7 of 8 Clearwire Site Number: FL- 0RL0274 above grade condition. If such time for removal causes Clear Wireless to remain on the Subleased Parcel after termination of this Agreement, Clear Wireless shall pay rent directly to the City in the amount of four thousand and no /100ths ($4,000.00) per month until such time as the removal of the communications equipment and related facilities are completed. Upon termination of this Agreement and removal of Clear Wireless' communication equipment and related facilities shall be released of any liability occurring on the Subleased Property and utility and ingress and egress easements after such termination and removal. 35.0 Modification. Modifications ofthis Agreement shall only be made in writing signed by both parties. 36.0 Compliance with Laws. Clear Wireless shall comply with all local, state, and federal laws and regulations regarding the construction, placement, maintenance and use of Clear Wireless' communications equipment and related facilities. 37.0 Signs. Clear Wireless shall not place any sign(s) on the Subleased Property, Tower or utility and ingress and egress easements. IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year written above. CITY OF WINTER SPRINGS, a Florida municipal corporation. 1Ao1IOq K 7( Smi City Manager CLEAR WIRELESS, LLC, a Nev da Limited Liability Co pany. , oo ti t 2.4 , 0 C c/ c-/.49-..v i < / /2 O, Lisa Torres, Director Regional Network Deployment Page 8 of 8