HomeMy WebLinkAbout2013-030 g . t .
FREQUENCY RELOCATION AGREEMENT
(CASH)
THIS FREQUENCY RELOCATION AGREEMENT (this "Agreement") is made as of the
Effective Date by and between AT&T Mobility LLC ("AT&T MOBILITY"), a Delaware limited
liability company, with offices located at 1057 Lenox Park Blvd NE, Atlanta, GA 30319-5309, and
Indian River County, Florida, (the "Incumbent") , a political subdivision of the State of Florida, with
offices located at 4225 43 `d Avenue, Vero Beach, FL 32967 .
RECITALS :
A. Incumbent presently is licensed to operate on the Licensed Frequencies within the 2110 to
2155 MHz band;
B. The FCC has reallocated and auctioned the 2110 to 2155 MHz frequencies, including those
used by Incumbent, from fixed microwave services to the Advanced Wireless Services ("AWS") ;
C. AT&T MOBILITY, or an Affiliate, is licensed by the FCC to operate AWS systems in the
MIAMI-FORT LAUDERDALE, FL market (the "Market"), and desires that the Incumbent vacate the
Licensed Frequencies and relocate its system to the Replacement System in order to avoid any
potential interference between the Incumbent and AT&T MOBILITY' s operations on or use of the
Licensed Frequencies ;
D. AT&T MOBILITY and the Incumbent have voluntarily entered into negotiations in good
faith to reach an agreement as to the terms of the relocation;
E. AT&T MOBILITY and Incumbent desire that the Incumbent cease use of its Microwave
Operations to , clear the Licensed Frequencies for use by AT&T MOBILITY on a primary basis,
consistent with the FCC ' s grant of AWS licenses to AT&T MOBILITY pursuant to Public Notice DA
06-2408 , dated November 29, 2006, and consistent with the relocation procedures set forth in Part 27
of the FCC ' s rules and the FCC ' s Ninth Report and Order in ET Docket No . 00-258 ; and
F. Pursuant to the terms and conditions of this Agreement, the Incumbent will cease all of its
operations on the Licensed Frequencies and forfeit, to the FCC , the Incumbent' s license(s) to operate
on such Licensed Frequencies .
NOW, THEREFORE, in consideration of the mutual promises and covenants of the Parties
contained herein, and for other valuable consideration, the receipt, sufficiency and adequacy of which
are hereby acknowledged, the Parties intending to be legally bound hereby agree as follows :
1 . Definitions .
1 . 1 . "Affiliate", with respect to a Party, means any individual or entity that directly or
indirectly controls, is controlled by, or is under common control with the Party.
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1 .2. "Agent", means Communications International, 4450 US Highway 1 , Vero Beach, FL
32967 Incumbent' s authorized agent for receipt of the Compensation due hereunder for
the Decommissioning of the Microwave Operations .
1 . 3 . "Confidentiallnformation" means any and all technical, business and financial
information, in whatever form, furnished or disclosed by one Party to the other Party,
including, but not limited to, information on the Licensed Frequencies, cost estimates,
technical data, . information and pricing. Confidential information shall also include all
information concerning progress of the Parties ' dealings, the Parties ' positions in
negotiations, and each Party' s progress in fulfilling its obligations under this Agreement.
1 .4 . "Decommission", "Decommissioned" or "Decommissioning" means that (i) Incumbent
has removed, or caused the removal of, microwave equipment from its power source such
that no radio frequency emissions are transmitted on the Licensed Frequencies ; and (ii)
Incumbent has provided to AT&T MOBILITY or its designee electronic or paper copies
of the Form 601 (s) filed with the FCC using the FCC ' s Universal Licensing System
("ULS ") for deletion or modification of the Licensed Frequencies, together with proof of
payment to the FCC for, the applicable filing fee(s), if any.
1 . 5 . "Effective Date" means the later of the dates that this Agreement is signed by the Parties,
as shown on the signature line below.
1 .6 . "FCC" means the Federal Communications Commission.
1 .7 . "Licensed Frequencies" means the 2. 1 GHz frequencies identified in the attached
Exhibit A.
1 . 8 . "Microwave Operations" means the microwave system currently operated by
Incumbent on the Licensed Frequencies on the Paths .
1 .9. "Parties" means both AT&T MOBILITY and Incumbent and "Party" means either
AT&T MOBILITY or Incumbent.
1 . 10. "Path(s)" means any or all of the Incumbent' s 2. 1 GHz microwave links set forth in the
attached Exhibit A.
1 . 11 . "Primary" refers to the status of Incumbent' s microwave licenses on the Licensed
Frequencies and means that they were originally licensed to Incumbent (or Incumbent' s
predecessor in interest) by the FCC prior to June, 1992, properly recorded with the FCC
as primary licenses and no major modifications have been made subsequent to such time
that may have resulted in a reclassification of the license as a secondary license.
1 . 12 . "Replacement System" means the system that replaces Incumbent' s existing 2 . 1 GHz
system on the Licensed Frequencies, as more fully described in the attached Exhibit B .
2 . Decommissioning of the Licensed Frequencies. The Parties agree that Incumbent' s Microwave
Operations will be Decommissioned within ten ( 10) days of the Effective Date (the
'Decommissioning Date") .
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3 . Compensation . As compensation to Incumbent for the execution, delivery and performance of
this Agreement, AT&T MOBILITY shall pay to Incumbent' s Agent, Communications
International , an aggregate amount of Ninety Nine Thousand Seven Hundred and Seventy Two
Dollars and Three Cents ($99,772 .03 ) (the "Compensation") , payable as follows .
3 . 1 . Nineteen Thousand Nine Hundred and Fifty Four Dollars and Forty, One Cents
($ 19,954.41 ) Twenty percent (20%) of the Compensation due upon Incumbent ' s (i) cessation of
Microwave Operations over the Licensed Frequencies, (ii) removal of the microwave equipment
from its power source such that no radio frequency emissions are transmitted on the Licensed
Frequencies, (iii) delivery of digital photographs to AT&T MOBILITY demonstrating that the
microwave equipment has been removed from each site for each Path, and (iv) submission of
receipts and/or other forms of proof of payment to AT&T MOBILITY in support of the third
party costs and expenses incurred by Incumbent for the relocation of Incumbent' s Microwave
Operations to the Replacement System, and
3 .2 . Seventy Nine Thousand Eight Hundred and Seventeen Dollars and Sixty Two Cents
($79 , 817 . 62) Eighty percent (80% ) of the Compensation due upon Incumbent' s submission to
AT&T MOBILITY or its designee of (i) electronic or paper copies of the FCC Form 601 (s)
filed with the FCC using the ULS for deletion or modification of the Licensed Frequencies , (ii)
proof of payment to the FCC for the applicable filing fee(s), if any; and, (iii) a download, in
pipe delimited format, of the applicable filing and license data as proof of acceptance by the
FCC of the applicable filing for final cancellation of Incumbent' s station authorizations .
3 .3 . AT&T MOBILITY shall pay the Compensation to Incumbent' s Agent by checks sent via a
means of delivery to be selected by AT&T MOBILITY, such payments to be made sixty (60)
days after receipt of Incumbent' s and/or Incumbent' s Agent' s invoice. The first invoice for
payment shall be sent upon the Decommission Date ; and, thereafter upon the completion of all
Incumbent' s obligations as set forth in Sections 3 . 2 above. Prior to any Compensation
payments being made hereunder, Incumbent and Incumbent ' s Agent shall deliver to AT&T
MOBILITY a completed IRS Form W-9, "Request for Taxpayer Identification Number and
Certification" within ten ( 10) days of the Effective Date. The agreed upon Compensation
represents the full and sole compensation owed by AT&T MOBILITY to Incumbent for altof
its expenses associated with Decommissioning the Licensed Frequencies and establishing a
Replacement System.
3 .4 If Incumbent does not fulfill its obligations under Section 3 .2 above by the
Decommissioning Date, then in addition to other remedies available under this Agreement, or
at law or in equity, AT&T MOBILITY may, at its option, recover up to ten percent ( 10% ) of
the Compensation due and owing hereunder by off-setting such amount against the final
payment due in Section 3 . 2 above.
3 . 5 Incumbent, or Incumbent' s Agent, shall send via standard mail to .
AT&T Mobility
P. O . Box 66786
Saint Louis
MO 63166
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3 . 6 Incumbent, or Incumbent's Agent, shall send all invoices with the Invoice Number and
corresponding Purchase Order Number clearly marked on the invoice.
4 . Removal , Disposal and Replacement of Existing Equipment.
4. 1 . AT&T MOBILITY shall have no responsibility with regard to the removal and/or
disposal of equipment utilized in connection with the Licensed Frequencies or with
regard to any aspect of any Replacement System that Incumbent may install.
Incumbent shall, at its sole expense, be responsible for purchasing or procuring all
equipment and services necessary or appropriate in connection with the removal of its
facilities used in connection with its Microwave Operations and the construction, if any,
of substitute facilities, and assumes any and all liability thereof as the owner/operator of
such Replacement System.
4 . 2 . AT&T MOBILITY shall have no responsibility for the removal of any hazardous or
toxic materials or the special treatment of any environmentally sensitive facilities
resulting from the Decommissioning of the Licensed Frequencies and the installation of
the Replacement System, and Incumbent shall be solely responsible for the management
and costs associated therewith .
5 . Incumbent Performance. Incumbent shall take, or cause to be taken, all of the necessary and
proper acts to Decommission the Licensed Frequencies on or before the .Decommissioning Date,
including, without limitation, the following.
5 . 1 Obtain or secure all necessary governmental and third party permits, authorizations ,
inspections, licenses and consents , including frequency coordination, if necessary .
5 . 2 Oversee, coordinate and manage the relocation process and construction, if necessary,
of a Replacement System, including engaging and paying all agents , contractors or
subcontractors .
5 . 3 Manage the termination of power on the 2 . 1 GHz equipment utilized in the Microwave
Operations on the Paths .
5 .4 Provide all necessary technical and engineering support for the Microwave Operations
or Replacement System.
5 . 5 Remove and/or dispose of equipment utilized in Incumbent' s existing Microwave
Operations or with regard to any aspect of any Replacement System that Incumbent
may install.
5 . 6 Electronically file utilizing the ULS the 601 (s) canceling Incumbent' s authorizations)
to conduct Microwave Operations on the Paths identified in the attached Exhibit A .
5 .7 At least 10 daysprior to the Decommissioning Date, Incumbent shall notify AT&T
MOBILITY in writing that it expects to satisfy its Decommissioning obligations by the
Decommissioning Date. If Incumbent fails to provide such notice, AT&T MOBILITY
shall have the right to inquire of Incumbent as to the status of the Decommissioning of
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Incumbent's Microwave Operations , If Incumbent fails to respond within 5 business days
of such inquiry, or if Incumbent advises AT&T MOBILITY of its inability to satisfy any
of its Decommissioning obligations, AT&T MOBILITY may take such action and incur
such costs as may be reasonably necessary "to ensure that the Decommissioning of the
Microwave Operations occurs by the Decommission Date. In such event, Incumbent
shall provide AT&T MOBILITY with a copy of its written engineering plan to
Decommission its Microwave Operations and, AT&T MOBILITY shall be entitled to an
offset of such costs against its payment obligations to the Incumbent pursuant to this
Agreement.
6 . Covenants of. Incumbent
6 . 1 During the course of this Agreement, Incumbent agrees that it will. (i) not create or
permit to be created any encumbrance on the operations on the Licensed Frequencies
without the prior written consent of AT&T MOBILITY; (ii) not enter into or become
bound by any agreement under, which Incumbent's rights to the operations on the
Licensed Frequencies would be altered without the prior written consent of AT&T
MOBILITY; (iii) take all necessary action, or refrain from taking action, to ensure that
any of the representations and warranties of Incumbent contained herein will be true and
correct in all material respects during the course of this Agreement and on the
Decommissioning Date; and (iv) take all steps as are set forth in Section 5 hereof.
6 . 2 Incumbent hereby acknowledges that other AWS Licensees may be benefited by this
Agreement and the consummation by AT&T MOBILITY of the transaction contemplated
herein. Pursuant to FCC rules and policies, such other AWS Licensees may bear some of
the obligations undertaken by AT&T MOBILITY pursuant to this Agreement. Therefore,
Incumbent shall convey to AT&T MOBILITY, on the Decommissioning Date, all of
Incumbent's rights , as Primary or co-Primary licensee with respect to the Licensed
Frequencies, to protection from interference on the Licensed Frequencies (the
"Interference Rights") to the extent permitted by FCC rules and policies and in order to
allow AT&T MOBILITY to obtain the participation of such other AWS Licensees in a
cost sharing arrangement.
6 .3 Incumbent agrees , at AT &T MOBILITY' s request, to in reasonable efforts to
provide cost-sharing information (as described in Section 36 below) to AT&T
MOBILITY, if such information exists and is in Incumbent' s possession, or if such
information is required by AT&T MOBILITY : (i) to comply with FCC and FCC-
established clearinghouse rules and procedures, or (ii) to obtain reimbursement through
a private cost sharing plan with other AWS Licensees benefiting from the relocation.
7 . Decommissioning and Interference . Incumbent agrees that under no circumstances shall
Incumbent recommission, reapply power or put the removed equipment back in service,
subsequent to the Decommissioning Date . Subsequent to such date, regardless of whether
Incumbent has completed its transition to a Replacement System, Incumbent (i) acknowledges
and accepts interference to its Microwave Operations on the Licensed Frequencies from AT&T
MOBILITY ' s operations in the Market and (ii) will not cause interference to AT&T
MOBILITY' s operations on the Licensed Frequencies in the Market. Until the
Decommissioning Date, AT&T MOBILITY agrees to comply with the FCC ' s policies and
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rules governing prior coordination and the prevention of interference to Incumbent ' s
Microwave Operations.
8 . Representations and Warranties of Incumbent. Incumbent makes the following representations
and warranties to AT&T MOBILITY.
8 . 1 Incumbent is duly organized and validly existing in the jurisdiction of its organization, is
duly qualified to do business in the State(s) in which the Microwave Operations are
located, and has all the necessary power and authority to execute and deliver this
Agreement and perform its obligations hereunder. Further, Incumbent warrants that the
individual signing below on its behalf is expressly and duly authorized by Incumbent to
execute this Agreement and to legally bind Incumbent as set forth herein.
8 .2 Incumbent' s execution, delivery and performance of this Agreement does not conflict
with any law, regulation, order, license, contract or instrument to which Incumbent is
subject or by which Incumbent is bound. Additionally, Incumbent ' s authorization to have
AT&T MOBILITY pay the Compensation directly to Incumbent' s Agent,
Communications International , does not conflict with any law, regulation, order,
license, contract or instrument to which Incumbent is subject or by which Incumbent is .
bound.
8 . 3 This Agreement constitutes a valid and binding Agreement of Incumbent, enforceable in
accordance with its terms.
8 .4 The information provided on Exhibit A of this Agreement and all other information
regarding Incumbent and the Microwave Operations provided to AT&T MOBILITY by
Incumbent in connection with this Agreement is true, complete and accurate.
8 . 5 Incumbent is in material compliance with all FCC rules and regulations relating to the
Microwave Operations . Any failure of compliance will not adversely affect Incumbent' s
status as an FCC licensee, or the use of the Licensed Spectrum by AT&T MOBILITY
following the consummation of the transactions contemplated hereby.
8 .6 Incumbent's Microwave Operations are fully operational on the date of execution of this
Agreement. Incumbent is the authorized legal holder of all necessary FCC authorizations
for the Licensed Frequencies, and such authorizations are in Primary status . Such FCC
authorizations are in full force and effect, and have not been assigned, suspended or
revoked. There is not now pending or threatened by any entity or person, including the
FCC or any other governmental authority or agency, any application, petition, objection,
pleading or other claim or filing which questions the validity or the authorization of the
Licensed Frequencies or would interfere with Incumbent' s ability to perform its
obligations under this Agreement. To the extent that Incumbent has made or has pending
any application, petition or filing which would interfere with Incumbent' s ability to
perform its obligations under this Agreement, Incumbent shall, within 10 business days
following the Effective Date, withdraw any such application, petition or filing and
provide evidence thereof to AT&T MOBILITY or its designee . Incumbent has delivered
to AT&T MOBILITY true and complete copies of all FCC authorizations, including any
and all additions, amendments and other modifications thereto .
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8 . 7 No agreements, leases, rental arrangements, licenses, or permits , whether written or oral,
express or implied, relating to the Microwave Operations, that would adversely affect
Incumbent' s ability to perform any of its obligations under this Agreement, are in
existence.
8 . 8 No consent, approval, authorization, order of, or registration, qualification, or filing with
the FCC or any other regulatory agency, court or other governmental entity is required for
Incumbent' s execution, delivery and performance of this Agreement, other than such
consents , approvals , authorizations, orders, registrations, qualifications or filings
contemplated in connection with the Decommissioning of the Licensed Frequencies . No
consent of any other party is required for Incumbent' s execution, delivery and
performance of this Agreement.
8 .9 Incumbent has not received or entered into a contract to receive, nor shall it enter into a
contract to receive, from a party other than AT&T MOBILITY, any payment or
reimbursement for the relocation of its Microwave Operations on the Licensed
Frequencies .
9. Representations and Warranties of AT&T MOBILITY. AT&T MOBILITY makes the following
representations and warranties to Incumbent.
9. 1 AT&T MOBILITY is duly. organized and validly existing in the jurisdiction of its
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rganization and has all the necessary power and authority to execute, deliver and
perform its obligations contemplated by this Agreement.
9 . 2 The execution, delivery and performance by AT&T MOBILITY of this Agreement does
not conflict with any law , regulation, order, contract or instrument to which AT&T
MOBILITY is subject or by which AT&T MOBILITY is bound.
9 . 3 This Agreement constitutes a valid and binding agreement of AT&T MOBILITY,
enforceable in accordance with its terms .
10. Indemnification by Incumbent. To the extent allowed by law and without waiver of its
sovereign immunity, Incumbent agrees to indemnify, defend and hold harmless AT&T
MOBILITY, its members, owners, officers, directors, and , stockholders , and its and their agents,
representatives, designees , affiliates, employees and respective successors or assigns (the "AT&T
MOBILITY Indemnitees"), from and against, and shall reimburse the AT&T MOBILITY
Indemnitees on written demand for, any and all liabilities, losses, damages, claims, demands,
actions, costs and expenses (including without limitation, court costs and reasonable attorneys '
fees) of any kind or nature (the "Liabilities") , that such AT&T MOBILITY Indemnitees may
suffer, sustain, incur, pay or expend by reason of, or as a result, of any and all claims , losses,
penalties, forfeitures, damages, judgments, causes of action, suits and liabilities arising out of or
related to (a) the breach by Incumbent of any of the terms and conditions of this Agreement, (b)
each and every breach or default of, or inaccuracy or omission in any representations, warranties
or covenants of Incumbent contained herein, (c) any negligent or willful act, or failure to act, by
Incumbent, its owners , officers , directors, agents , representatives, designees or affiliates, in the
performance of its obligations under this Agreement, (d) the ownership or operation of the
facilities or equipment included with or among the Microwave Operations, whether before or
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after the Decommissioning Date, (e) the ownership or operation of the Licensed Frequencies
prior to the Decommissioning Date, and (f) any matter related to any aspect of the design,
construction, installation, operation, or maintenance of any Replacement System. Subject to the
limitations set forth in Section 13 of this Agreement, such Liabilities shall include, but not be
limited to, those which are attributable to personal injury, sickness , disease .or death ; and/or from
injury to or destruction of real or personal property including loss of use thereof, theft, misuse or
misappropriation.
11 . Indemnification by AT&T MOBILITY. AT&T MOBILITY agrees to indemnify, defend and
save harmless Incumbent, its owners, officers, directors, stockholders, agents, representatives ,
designees, affiliates, employees and their respective successors or assigns (the "Incumbent
Indemnitees") , from and against, and shall reimburse the Incumbent Indemnitees on written
demand for, any and all Liabilities that such Incumbent Indemnitees may suffer, sustain, incur,
pay or expend by reason of or as a result of any and all claims, losses , penalties , forfeitures ,
damages , judgments , causes of action, suits and liabilities arising out of or related to (a) the
breach by AT&T MOBILITY of any of the terms and conditions of this Agreement, (b) each and
every breach or default of, or inaccuracy or omission in any representations, warranties or
covenants of AT&T MOBILITY contained herein, (c) the ownership or operation of the Licensed
Frequencies following the Decommissioning Date, and (d) any negligent or willful act or failure
to act by AT&T MOBILITY, its members, owners, officers, directors, and stockholders , and its
and their agents, representatives , designees or affiliates in the performance of its obligations
under this Agreement. Subject to the limitations set forth in Section 13 of this Agreement, such
Liabilities shall include, but not be limited to, those which are attributable to personal injury,
sickness, disease or death ; and/or from injury to or destruction of real or personal property
including loss of use thereof, theft, misuse(or misappropriation.
120 Claims for Indemnification. Where indemnification is sought by a Party (the "Claiming Party") ,
(a) it shall notify the other Party (the "Indemnifying Party") promptly of any claim or litigation or
threatened claim to which the indemnification relates; (b) upon the Indemnifying Party' s written
acknowledgment of its obligation to indemnify Iin such instance, in form and substance
satisfactory to the Claiming Party, the Claiming Party shall afford the Indemnifying Party an
opportunity to participate in and, at the option and; expense of the Indemnifying Party, control,
compromise, settle, defend or otherwise resolve the claim or litigation (and the Claiming Party
shall not effect any such compromise or settlement without prior consent of the Indemnifying
Party) ; and (c) the Claiming -Party shall reasonably cooperate with the Indemnifying Party at no
cost to itself in any compromise, settlement, defense or resolution of such claim or litigation. In
the event that the Indemnifying Party does not so acknowledge its indemnification responsibility,
the Claiming Party may proceed directly to compromise, settle, defend or resolve such claim, and
at any time may enforce its indemnification rights.
13 . Limitation of Liability. EXCEPT FOR BOTH PARTIES ' OBLIGATIONS OF
INDEMNIFICATION (IN SECTIONS 10 AND 11 ABOVE), AND CONFIDENITIALIY
(IN SECTION 18 BELOW), BOTH PARTIES AGREE THAT NEITHER PARTY, ITS
MEMBERS, OWNERS, OFFICERS, DIRECTORS , STOCKHOLDERS, NOR ITS OR
THEIR AGENTS, REPRESENTATIVES , DESIGNEES, AFFILIATES AND
EMPLOYEES AND ITS OR THEIR RESPECTIVE SUCCESSORS OR ASSIGNS
SHALL BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL,
EXEMPLARY OR PUNITIVE DAMAGES, OR FOR LOST PROFITS OR
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INTERRUPTION TO EITHER PARTY'S BUSINESS, OF ANY NATURE
WHATSOEVER ARISING OUT OF OR RELATED TO ACTIONS TAKEN OR
OMISSIONS OF SUCH PARTY IN CONNECTION WITH THIS AGREEMENT, EVEN
IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES , '
14. Termination.
14. 1 Either Party may terminate this Agreement upon 30 days written notice if the other Party ,
materially breaches any term or condition of this Agreement, provided that the breaching
Party has not cured the breach within such 30 day period.
14. 2 Upon written notice to Incumbent, AT&T MOBILITY may suspend for no longer than
180 days, or terminate this Agreement, upon the entry of an order of the FCC resulting in
AT&T MOBILITY ' s loss of or substantial modification of its authority to construct or
operate its system within the Market. In order to suspend this Agreement, AT&T
MOBILITY shall provide written notice to Incumbent to cease the Decommissioning of
the facilities and the Decommission Date shall be tolled for the duration of the
suspension.
14. 3 Upon written notice to Incumbent, AT&T MOBILITY may terminate this Agreement if
there is a material change in the FCC rules or regulations governing microwave relocation
or the issuance of a court order affecting microwave relocation.
15 . Release . Performance by AT&T MOBILITY of its obligations under this Agreement shall
constitute full and complete satisfaction of any and all obligations and liabilities of AT&T
MOBILITY to Incumbent regarding the Decommissioning of the Licensed Frequencies .
Provided that AT&T MOBILITY has performed its obligations hereunder, Incumbent hereby
releases AT&T MOBILITY from any further obligation, claim, or liability. relating to or arising
from the operation or relinquishment of the Licensed Frequencies, with the exception of the
obligations arising under Section 17 and Section 18 of this Agreement.
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16. Notices . Notices to the Parties concerning this Agreement shall be effective upon receipt and
only when in writing and delivered personally, or mailed by , registered or certified mail, return
receipt requested, or by overnight courier delivery, addressed to the authorized representative or
corporate officer of the other Party.
Notices shall be sent as follows :
If to AT&T MOBILITY : With a copy to :
AT&T Services , Inc . AT&T Network Counsel
1057 Lenox Park Blvd, NE P. O . Box 97061
Atlanta, GA 30319-5309 Redmond, WA 98073 -9761
Anne Cathy Addison
If to INDIAN RIVER COUNTY: With a copy to :
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_Communications International_
_4450 US Highway 1
_Vero Beach, FL 32967
Attn : Attn . Steve Fisher
Email : Email :_sfisher@ ask4cii. com
Phone : Phone 772-978-4105
A Party may change its notice address hereunder by providing thirty (30) days advance notice
to the other in accordance with this Section.
17 . Publicity. Any claim by either Party for the protection of certain documents or information
relating to the subject of this Agreement from disclosure and the associated actions of the Party
receiving the claim shall conform to the Florida Public Records Act, Fla. Stat. § 119 .01 through
§ 119 . 15 . Subject to the foregoing, no information relative to this Agreement or the execution
thereof shall be released by either Party for publication, advertising or for any other purpose
without the prior written approval of the other Party.
18 . Confidentiality. Except as otherwise provided in this Section, the Parties agree that all
Confidential. Information shall be kept in confidence and shall not, without the prior written
consent of the disclosing Party, be disclosed by the receiving Party in any manner whatsoever, in
whole or in part, and that the receiving Party shall use the Confidential Information disclosed to
the receiving Party solely for the purposes of this Agreement unless otherwise specifically
authorized in writing by the disclosing Party, or specifically required by an order of a regulatory
agency or court of competent jurisdiction, in which case the receiving Party shall first notify the
disclosing Party in writing of the order and permit the disclosing Party to seek an appropriate
protective order. Neither Party shall disclose the terms and conditions of this Agreement, except
that AT&T MOBILITY may disclose the relevant terms and conditions to other AWS Licensees
for cost sharing purposes . Notwithstanding the foregoing, a receiving Party may disclose
Confidential Information to its employees, attorneys, agents, parent corporation, partnership or
member organization and its and their employees, agents and representatives , provided such
disclosure is made only to those persons with a legitimate need to know such Confidential
Information for purposes consistent with this Agreement.
19. Incumbent Control . Until the Decommissioning Date, nothing in the Agreement is intended or
shall be construed to grant control of the Microwave Operations to AT&T MOBILITY or to
otherwise prevent Incumbent from exercising its duties and obligations as an FCC licensee .
20. Future Claims by "Incumbent. Incumbent acknowledges that the Decommissioning of the
Licensed Frequencies has been fully and fairly negotiated in good faith by Incumbent and AT&T
MOBILITY, and agrees not to commence any proceeding, claim, suit, request or other legal or
equitable challenge before any governmental , agency, including the FCC, or court to (i) reclaim or
seek to use the frequencies listed on Exhibit A, (ii) avoid or negate this Agreement or (iii) seek
additional consideration, facilities, or frequencies from or seek to share the frequencies listed on
Exhibit A with AT&T MOBILITY or other AWS Licensees ,
21 . Specific Performance. Incumbent acknowledges that the performance of its obligations under
this Agreement is special , unique and extraordinary in character, and that in the event of a breach
by Incumbent, AT&T MOBILITY shall be entitled, in addition to any other remedies to which it
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is entitled, to seek specific performance by Incumbent. Incumbent hereby waives its defense that
an adequate remedy at law exists .
22 , Modifications. Except as otherwise provided in this Agreement, no changes , modifications or
amendments of any of the provisions of this Agreement shall be valid unless agreed to in
writing and signed by the Parties .
23 . Severability. In the event that any provision, or any part or portion of any provision of this ,
Agreement shall become or be declared unlawful, invalid, void or otherwise unenforceable, the
remainder of this Agreement shall not be affected and each provision of this Agreement shall
be valid and enforceable to the fullest extent permitted by law .
24 . Survival. Neither completion of performance nor any termination or cancellation of this
Agreement shall be deemed to relieve either Party of any obligations hereunder that by their
nature survive completion of performance, including but not limited to, all confidentiality
obligations .
25 . Successors and Assigns. This Agreement shall be binding on the Parties and their successors
and assigns . Except as otherwise provided in this Agreement, neither Party may assign its
rights nor delegate its obligations hereunder without the express written consent of the other
Party (which shall not be unreasonably withheld) , . except that AT&T MOBILITY may assign
its rights and delegate its obligations under this Agreement to an affiliate.
26. Third Party Rights . Nothing in this Agreement shall be construed to give any rights or benefits to
anyone other than the Parties and their successors and assigns .
27 . Non-Waiver of Rights . The failure of either. Party to demand strict performance of the terms
of, or to exercise any right conferred in this Agreement shall not be construed as a waiver or
relinquishment of its right to assert or rely upon any such term or right in the future, or consent
to any continuing or subsequent failure or breach.
28 . Not a Joint Venture. This Agreement does not and shall not be construed to establish a
partnership, joint venture or other form of business arrangement between AT&T MOBILITY
and Incumbent.
29 . Jointly Drafted. This Agreement shall be deemed to have been drafted by both Parties and, in
the event of a dispute, shall not be construed against either Party.
30. Compliance with Laws . Each Party shall comply with all federal, state and local laws , rules ,
regulations and ordinances applicable to its performance hereunder.
31 . Governing Law . The validity and construction of this Agreement shall be governed by the laws
of the State of Florida, and jurisdiction of any dispute shall be in the Circuit Court of Indian
River County, in case of federal jurisdiction the Southern District Court of Florida.
32 . INTENTIONALLY LEFT BLANK
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33 . Approvals . Incumbent shall be responsible for obtaining any permit, consent, approval ,
authorization, registration, or making any filing with any third party , governmental or
regulatory authority or agency which is required in connection with the execution, delivery and
performance of this Agreement.
34. Fees and Expenses.
34. 1 The prevailing Party in any action or proceeding to enforce the terms of this Agreement is
entitled to receive its reasonable attorney' s fees and other reasonable enforcement costs
and expenses from the non-prevailing Party.
34. 2 Expenses and costs incurred in connection with the preparation of this Agreement,
preparing and prosecuting any applications for governmental authorizations or approvals
and all other expenses, except as provided herein, shall be borne solely by the Party who
incurred such expenses and the other Party shall have no liability with respect thereto .
35 . Fines . Any fines or other penalties incurred by either Party or its agents, employees or
subcontractors for such Party' s noncompliance with any laws , rules , regulations or ordinances
shall not be reimbursed by the other Party but shall be the sole responsibility of the Party
incurring such fines or penalties .
36 . Further Documents and Information. At AT&T MOBILITY ' s request, Incumbent will provide
AT&T MOBILITY with any documentation or information in its possession necessary for
AT&T MOBILITY to obtain the participation of other licensees in a cost sharing arrangement
including but not limited to information on the existing microwave system currently operated
on the Licensed Frequencies such as information on the microwave radios (manufacturer,
model number, and type) , multiplex equipment (manufacturer, model number, quantity) ,
antennas and waveguide (model number, type, length) , pressurization equipment, and towers .
Incumbent, at AT&T MOBILITY ' s request shall provide to AT&T MOBILITY information
required by AT&T MOBILITY to comply with FCC and FCC-established clearinghouse rules
and regulations . Each party shall, from time to time and as requested by the other, execute any
documents reasonably necessary to effectuate the provisions of this Agreement.
37 . Headings . Any headings contained herein are inserted for convenience and shall have no effect
on interpretation or construction of this Agreement.
38 . Counterparts . This Agreement may be signed in counterparts , each of which is an original for
all purposes but all of which taken together constitute only one instrument.
39 . Time of Essence. Time of performance is of the essence in this Agreement and a substantial and
material term hereof.
40. Entirety. : This Agreement and the Exhibits hereto constitutes the entire Agreement between the
Parties with respect to the subject matter hereof and supersedes any prior or contemporaneous
agreement or understanding, written or verbal, between the Parties . Incumbent agrees that no
representation of any negotiator, engineer, officer or employee of AT&T MOBILITY or its
designee or any contractor or vendor engaged by AT&T MOBILITY or its designee shall
operate to vary the written terms hereof. No prior course of dealing, usage of trade or course of
12
performance shall be used to supplement or explain any term, condition or instruction used in
this Agreement, nor be deemed to effect any amendment.
' IN WITNESS WHEREOF, the Parties, by their duly authorized representatives, have
executed this Agreement effective as of the Effective Date ,
INDIAN RIVER COUNTY AT &T MOBILITY LLC
By: By:
Print N e Joseph E . Flescher . Print Name :
Title : Chairman Title .
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Dated: 02-12- 2013 t pMM 16 0 0 0ated:
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APPROVED RR�o� :••' Court and Comptroller
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APPROVED AS TO R
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YNILLIAM . DEBRAAL
DEPUTY-COUNTY ATTORNEY
13
i
EXHIBIT A
TO FREQUENCY RELOCATION AGREEMENT
BETWEEN
AT& T MOBILITY
AND
INCUMBENT
Path to be Relocated
Path No. Call Sign Site 1 Freq. I Call Sign Site 2 Freq. 2
1 2
220008980 WNET232 4055 41ST 21232 .4 WNES620 HOBART 2182 .4
AV PARK
i
EXHIBIT B
TO FREQUENCY RELOCATION AGREEMENT
BETWEEN
AT&T MOBILITY
AND
INCUMBENT
Replacement System Bill of Materials and Costs
9