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HomeMy WebLinkAbout02/18/98 AGENDABREMERTON CITY COUNCIL 239 4TH STREET BREMERTON, WA 98337 CITY COUNCIL AGENDA FEBRUARY '18 1998 CITY COUNCIL STUDY SESSION: 5:00 - 5:30 P.M. A. General Council Business B. Study Session -Attorney Michael A. Duchemin Representing LEOFF I Retirees- Medicare Payments CALL TO ORDER: 5:30 P.M. A. Pledge Of Allegiance B. Invocation CONSENT AGENDA Items listed below have been distributed to Council members in advance for study and will be enacted by one motion. If separate discussion is desired on an item, it may be removed from the Consent Agenda and placed on the Regular Agenda at the request of a Council member. A. Minutes - February 4, 1998 #AB98-021 CLAIMS/CHECK REGISTERS 5. COUNCIL MEMBER REPORTS 6. MAYOR'S REPORT 7. PUBLIC RECOGNITION -- (Comments Limited to 3 Minutes) NEW BUSINESS A. Appointment of Douglas C. Groneman to the Parks And Recreation Commission B. Appointment of John Lyall To The Civil Service Commission Appointment Of Edward E. Wolfe To The Planning Commission (CONTINUTED NEXT PAGE) #AB98-022 #AB98-023 #AB98-024 Professional Services Agreement With The Bumgardner Architects For Pre-design Services For A New Club House At The Gold Mountain Golf Complex E. Corrosion Control And Fluoridation Facility- Purchase Of Chemical Pumps F. Telecommunication Tower Leases With U.S. West G. Renew One Year Kitsap YMCA Membership For All Qualified City Employees And Officials H. Confirmation Of Glenna Malanca As City Attorney I. Approval Of Appointing Judy Johnson As Acting Director Of Community Development ORDINANCES A. Ordinance ¢4623 (Second Reading) Repealing Ordinance ¢4619 Amending City of Bremerton Shoreline Master Plan (Docks/Piers) ¢AB98-025 //~ ¢AB98-026 ¢AB98-027 ~ / ¢AB98-028 ¢AB98-029 o~ ? ¢AB98-030 ¢AB98-020 AGENDA BILL BREMERTON CITY COUNCIL 1. SUBJECT':- MINUTES - FEBRUARY 4, 1998 FOR AGENDA OF: FEBRUARY 18~ lqq8 ORIGINATING DEPT: City Council- ORIGINATOR: David Farr, rresident DATE SUBMITTED: 2-'10-98 2. ~: (comment on back if necessary) ENDORSEMF~NT__ MAYOR INFORMATION__ APPROVED BY~ COUNCIL PP~SID-Elq~OR SUBMITTAL: 4. $~Y STATEMENT AND REQUIREMENT FOR CO[~CIL ACTION: 8. RECOPLqENDATION: 9. RESPONSIBLV, OFFICIAL: ENFOR~ OFFICIAL: .EXPIRATION DATE: P~;iEW DATE: PU/,LED TABLED COUNCIL DIRECTIVE: 10. NOTIC~ OF ACTION APPROVED .DISAPPROVED ..DATE: AMENDED TAPE #1523 UNAPPROVED DRAFT CITY COUCIL MEETING MINUTES FEBRUARY 4, 1998 The regular meeting of the City Council of the City of Bremerton was called to order in the City Council Chambers, 239 4th Street, Bremerton, Washington, Wednesday February 4, 1998, at 5:30 P.M., with Council President David Farr presiding. Council members present were Carlos Montgomery, Lon Overson, John Law, and Cecil McConnell. Council members Wayne Olsen, Mike Shepherd, Carol Arends, and Jim Reed were absent. Also present were Assistant City Attorney Glenna Malanca and Deputy City Clerk Paula Johnston. The meeting opened with the Pledge of Allegiance led by Council President Fart and invocation given by Reverend Cleveland Williams of Ebenezer A.M.E. Church. President Fart made the following announcements: (1) The City Council held a Study Session prior to the Council meeting to discuss general Council business. (2) The City Council will hold a Study Session on February 9, 1998, 5:30 - 7:20 P.M., in the Council Conference Room. Topics of discussion: Public Works and Utilities issues. CONSENT AGENDA A. Minutes of Meeting - January 21, 1998 #AB98-015 #0038 MISIClU(McConnelllMontgomery) Motion to approve the Consent Agenda as presented. CLAIMS/CHECK REGISTERS Vouchers audited and certified by the auditing officer as required by RCW 42.24.080, and those expense reimbursement claims certified as required by RCW 42.24.090, have been recorded on a listing that had been made available to the Council #0060 MIS/CIU(MontgomerylLaw) On February 4, 1998, the Council does approve for payment those vouchers included and further described as follows: 216558 through 216574, 216577 through 216737 in the total amount of $305,120.14; and Regular Payroll for the period ending January 31, 1998, in the amount of $868,023.14; and Retirees' Payroll for the period ending January 31, 1998, in the amount of $105,438.04. TAPE #1523 City Council Reg. Mtg. Minutes February 4, 1998 Page 2 of 6 COUNCIL MEMBER REPORTS Mr. Law announced the next District #3 Neighborhood Meeting will be held on February 17, 1998, 7:00 P.M., at the Senior Center. Mr. Overson reported on activities in the downtown area, particularly on the evening of January 27, 1998, where he attended an excellent dinner show at the Admiral Theater. The Roxy Theater also held an entertainment event that evening. He pointed out new businesses are starting up downtown and the Swing City Committee's flower barrels are starting to bloom. Mr. Montqomery reported on January 26, 1998, he attended the Puget Sound Regional Planning Council Executive Board meeting where he heard William Dodge speak on a book he wrote on "Regional Excellence". The essence of that speech had to do with the fact that it is time for the cities and counties to sit down and start talking with each other. Mr. Farr stated the cities and Kitsap County sat down together today at the Kitsap Regional Coordinating Council where they discussed the recent unveiling of the County's Comprehensive Plan Map that designates the areas of Urban Growth. He noted four members of the City Council were absent from this meeting due to their attending the Association of Washington Cities Legislative Conference in Olympia. MAYOR'S REPORT - NONE PUBLIC RECOGNITION Al Colvin, District #1 resident, stated he was pleased to give the City Council a "good report card" on the January 28, 1998, Council Meeting Agenda. The citizens appreciate the Council's dedication and unwillingness to rubber stamp a proposition that was before them. He complimented Councilman Montgomery on his demeanor when he presided over the Council meeting in President Fart's absence. Due to Councilman Olsen's absent, Mr. Colvin was asked to announce the next District #1 Neighborhood Meeting will be held on February 19, 1998, 7:00 P.M., at the Sheridan Park Recreation Center. The guest speaker will be Mayor Lynn Horton giving an update on "State of the City~' and "Sinclair Landing project". Philip Hecl_qen, Citizens For Safe Water, stated by City Council mandate, fluoride compounds are scheduled to be placed in the Bremerton Water System in 1998. This action overrides the previous 1961 citizen vote that turned down fluoridation by more than 2-1. He emphasized the fact that fluoride compounds are not approved by either the EPA or FDA and if not put into water supplies they would have to be disposed of as a toxic waste in class 1 landfills at high cost to industry. Injury could be incurred by vulnerable subsets of the local population TAPE #1523 City Council Reg. Mtg. Minutes February 4, 1998 Page 3 of 6 by water fluoridation and also City liabilities incurred, as stated in government documents referenced in his petition to the Council dated May 28, 1997. Therefore, he asked the City council to provide express and adequate warnings to City water users prior to the fluoridation of the City's Water System. He asked that warnings be provided on a monthly basis in the water bills and local media for as long as City water is fluoridated, pointing out the dangers of fluoridated water to subsets of the population, who are usually susceptible to the toxic effect of fluoride and its compounds. In his discussion he referenced U.S. Department Of Health & Human Services Document TP-91/17, and provided the City Council a copy. Susan Brown, Bremerton resident, read a letter she received from the City Council in response to her recommendations for changes to the City's Ethics Code. Since the letter stated Council would address her request, if time allows, at its next Retreat, she wanted to if a date, time, and place had been selected for the Retreat and if it is a public meeting? President Fart stated the Council Retreat is a public meeting and will be held February 28, 1998, at the Gold Mountain Golf Complex (Banquet Room), 9:00 AM - 2:00 P.M. An Agenda for that meeting will be published showing exact times for specific items to be addressed. Gordy Byrd expressed his appreciation to Adele Ferguson for the leather jacket she donated to him. He also thanked Mark Nicholson for his donation of $102.26 to the Byrd's Nest Fund. President Farr announced Agenda Item 8A had been pulled from the Agenda. 8B - PROFESSIONAL SERVICES AGREEMENT WITH Parametrix, Inc., Re,qardin.q The Haddon Site Park Construction Documents Development, #AB98-017 In 1997, the City purchased the old Haddon School site from the Bremerton School District. Since then the Parks and Recreation Department has been working with the neighborhoods to develop a Master Plan. Parametrix, Inc., has assisted in developing concept documents in this effort. It is now time to prepare the detailed construction documents to begin the development. The costs associated with this action is $24,452.00. Jodie Wroblewski, Assistant Director Parks and Recreation, thanked all the neighbors and interested people, who participated in the three public meetings that were held to formulate the most desirable elements for the new park at the old Haddon School site. As a result of those meetings, the following amenities were prioritized: open grassy play area, walking paths, restroom, playground equipment, swings and a big slide, basketball court. She stressed those will be TAPE #1523 City Council Reg. Mtg. Minutes February 4, 1998 Page 4 of 6 the first elements looked at; however, she was not sure all of them could be included during the first phase of improvements. Future development identified by the public included multi-use walled court, covered picnic area and skateboard area. Ms. Wroblewski noted Dave Gebert, Office Manager of Parametrix Inc., was present and available to answer questions. The Professional Services agreement launches the City into the development phase of the project. Parametrix would be asked to develop a Master Plan, specifications, and estimates for the Plan, assist the City in the bid process and four site visits during construction. Public comment - none. Mr. McConnell questioned if the source of funding for this agreement would come out of the Roosevelt Field Replacement Fund? Ms. Wroblewski stated yes, and it would be addressing some of the concerns voiced when the fund was approved. Mr. Montgomery stated this kind of action was long over due considering District #6 has only two small parks, one being the cemetery and the other a small neighborhood pocket park. Residents in the areas of Lafayette, Cambrian, and Wycoff have been saying for years that they need a park. He attended the first meeting of the citizens group and found them to be very enthusiastic on what they wanted included. If he remembered correctly, the adults wanted more amenities for themselves than those for children. Mr. Law stated he was told that part of the site was used as a garbage dump and questioned if that was correct? Ms. Wroblewski stated that was her understanding and when the City purchased the property documentation was provided by the School District regarding any hazardous environmental issues. It is hopeful that area can be covered with soil, similar to what is being proposed for Evergreen Park. Mr. Law stated hopefully any environmental issues could be addressed early on the schedule before getting into other commitments. He asked how soon would action be taken to address the remediation of that area? Ms. Wroblewski stated that will be one of the first steps and she anticipated it would take place within a couple of months. Dave Gebert, Parametrix Inc., stated previous work had been done on that issue and they would review and evaluate that work to determine if anything else needs to be done. After their initial review, the ideal of capping it will solve that problem. Mr. Law questioned the completion date of the project? Mr. Gebert stated they expect to have the Plan and specifications ready for bid in March and open bids in April. TAP E #1523 City Council Reg. Mtg. Minutes February 4, 1998 Page 5 of 5 Mr. Overson stated in reviewing the products of the agreement, he found it hard to find the justification for $18,000. Ms. Wroblewski pointed out the scope of work will include full construction documents, including irrigation plans. Mr. Gebert explained in the initial phase of the project it includes more than just a restroom, it includes the walking path, four parking spaces, hydroseeding, irrigation, some imported fill, and site utilities. Although they will be using a standard design for the restroom facility, there will some other work involved. Mr. McConnell asked why the City was providing the design plan for the restroom? Ms. Wroblewski explained when the terms of the contract were negotiated that was something the City stated it would do because they have design information available. President Fart stated this park is located in District #6 and prior to the fine work by Mary Sump and the City receiving the donated lot in Anderson Cove, there were no parks in the District, except an agreement that children would be allowed to play in a section of the Ivy Green Cemetery. He too believes the resident in his District are appreciative and long overdue to have such amenities. He noted the vacant school grounds were used by the Parks Department's Playground Express for two summers, which drew large numbers of children. #0891 MISlClU(MontgomerylMcConnell) Motion to authorize and direct the Mayor to execute the Professional Services Agreement with Parametrix Inc., to provide bidding and construction services procedures for the old Haddon site development as described in the Scope of Work. President Farr thanked the TV camera crew for their services: Robert Neal, Kevin Chambers, and Gretchen Elliott. With no further business meeting adjourned at 6:03 P.M. PAULA JOHNSTON, Deputy City Clerk DAVID FARR, City Council President City of Bremerton P J/DF/me Cc: Normal Distribution FileNault AGENDA BILL BREMERTON CITY COUNCIL 1. SUBJECT: Appointment to the Parks and Recreation Commission FOR AGENDA OF: February 1~ 199~ ORIGINATING DEPT: Executive ORIGINATOR: Mayor Horton DATE SUBMITTED: February 11, 1998 2. CLEARANCES: (comment on back if necessary) 3. EXHIBITS: Application for Appointment ENDORSEMENT )6 INFORMATION __ APPROVED BY COUNCIL ~S~ FOR SUBMITTAL: COUNCIL PRESIDENT ~ 4. SUMMARY STATEMENT AND REOUIREMENT FOR COUNCIL ACTION: There is a vacancy on the Parks and Recreation Commission and it is recommended that Mr. Douglas C. Groneman be appointed to fill the vacancy. 8. RECOMMENDATION: Motion to confirm the appointment of Douglas C. Groneman to the Parks and Recreation Commission. 9. RESPONSIBLE OFFICIAL: ENFORCEMENT OFFICIAL: EXPIRATION DATE: REVIEW DATE: PULLED TABLED COUNCIL DIRECTIVE: 10. NOTICE OF ACTION APPROVED DISAPPROVED DATE: AMENDED 11. AGENDA BILL NO: 99- 0~ 2. CLEARANCE COMMENTS: N/A 5. IMPACT ON NON-PASSAGE: Less and full membership on the Commission. 6. IMPACT ON STAFFING, BUDGETS, 'FACILITIES. EOUIPMENT OR OTHER RESOURCES: N/A 7. RESEARCH SOURCES: N/A CITY OF BREMERTON APPLICATION FOR CITY BOARDS/COMMISSIONS/COMMITTEE NOTE: As an applicant for a City Board, Commission or Committee, your name, address, and telephone number will be available to the press and public. You will be contacted before any action is taken on your appointment. (Please type or print clearly) NAME: HOME ADDRESS: c'~ OCCUPATION: DATE: ~'- '?-) - ~-7 PHONE: ~-7~- /~,~-~ (H) 7:7'--/ (w) EDUCATION: LOCAL REFERENCES (name & phone number): ,3V7- lAM () () () () () () () () INTERESTED IN SERVING ON (please check on Disability Action Committee ( ) Civil Service Commission(18 yrs. & older) ~ Urban Forest Committee ( ) Cable Communications Advisory Committee ( ) Community Development Block Grant ( ) Advisory Committee ( ) Youth Council ( ) Safe Streets', Steering Committee ( ) Citizen's Commission on Council Salaries e or more): Planning Commission (18 yrs. & older) Parks & Recreation Commission Ethics Commission Parking Advisory Board Solid Waste Management Bremerton Housing Authority Board of Appeals, Housing/Building Codes Special Committees as needed Is this an applic'a{ion for reappointment? JL}~} If yes, how many years have you served on this commission/committee? PLEASE RETURN TO: Mayor's Office 239 4th Street Bremerton, WA 98337 ':~ Applications be reviewed periodically to determine continued availability. information may be put on back. ? Additional pertinent AGENDA BILL BREMERTON CITY COUNCIL . SUBJECT: Appointment to the Civil Service Commission FOR AGENDA OF: ORIGINATING DEPT: ORIGINATOR: DATE SUBMITTED: February 18~ ]998 Executive Mayor Horton February 11, 1998 2. ~: (comment on back if necessary) 3. ~: Application for Appointment ENDORSEMENT ,j RMATION__ APPROVED BY COUNCIL~F SUBMITTAL: COUNCIL PRESIDENT ~~ 4. SUMMARY STATEMENT AND REOUIREMENT FOR COUNCIL ACTION: There is a vacancy on the Civil Service Commission and it is recommended that Mr. John Lyall be appointed to fill the vacancy. 8. RECOMMENDATION: Motion to confirm the appointment of John Lyall to the Civil Service Commission. 9. RESPONSIBLE OFFICIAL: ENFORCEMENT OFFICIAL: EXPIRATION DATE: REVIEW DATE: PULLED TABLED COUNCIL DIRECTIVE: 10. NOTICE OF ACTION APPROVED DISAPPROVED DATE: AMENDED /S 11. AGENDA BILL NO: 2. CLEARANCE COMMENTS: N/A 5. ~MPACT ON NON-PASSAGE: Less than full membership on the Commission. Possible lack of quorum. ~--6. IMPACT ON STAFFING, BUDGETS, FACIL~TIES~ EOUIPMENT OR OTHER RESOURCES: N/A 7. RESEARCH SOURCES: N/A /? CITY OF BREIVIERTON APPLICATION FOR CITY BOARDS/COMMISSIONS/COIVIIVlITTEE NOTE: As an applicant for a City Board, Commission or Committee, your name, address, and telephone number will be available to the press and public. You will be contacted before any action is taken on your appointment. (Please type or print clearly) PROFESSlONAL/CO~ITY ACTIVITIES: LO~AL:EIE:~SJ(nam: & phone number;: I AM INTERESTED IN SERVING ON (please check one or more): ( ) Disability Action Committee ~ Planning Commission (18 yrs. & older)  Civil Service Commission(18 yrs. & older) Parks & Recreation Commission Urban Forest Committee ( ) Ethics Commission ( ) Cable Communications Advisory Committee ( ) Parking Advisory Board ( ) Community Development Block Grant ( ) Solid Waste Management Advisory Committee ( ) Bremerton Housing Authority ( ) Youth Council ( ) Board of Appeals, Housing/Building Codes ( ) Safe Streets Steering Committee ( ) ~ayor's Select Committee on Law ( ) Citizen's Commission on Council Salaries Enforcement Is this an applica{ion for reappointment? If yes, how many years have you served on this commission/committee? PLEASE RETURN TO: Mayor's Office 239 4th Street Bremerton, WA 98337 Applications be reviewed periodically to determine continued availability. information may be put on back. /? Additional pertinent AGENDA BILL BREMERTON CITY COUNCIL 1. SUBJECT: Appointment to the Planning Commission FOR AGENDA OF: ORIGINATING DEPT: ORIGINATOR: DATE SUBMITTED: ~ebruary ]R~ 19qR ~ecutive Mayor Hor~n~ February 11, 1998 2. ~: (comment on back if necessary) 3. ~: Application for Appointment ENDORSEMENT .~I~TION __ APPROVED BY COUNCIL P~I~~TAL: I~YOR~~ COI. JNCIL PRESIDENT ..... [~ . .~ 4. SUMMARY STATEMENT AND REOUIREMENT FOR COUNCIL ACTION: There is a vacancy on the Planning Commission and it is recommended that Mr. Edward E. Wolfe be appointed to fill the vacancy. 8. RECOMMENDATION: Motion to confirm the appointment of Edward E. Wolfe to the Planning Commission. 9. RESPONSIBLE OFFICIAL: ENFORCEMENT OFFICIAL: EXPIRATION DATE: REVIEW DATE: PULLED TABLED COUNCIL DIRECTIVE: 10. NOTICE OF ACTION APPROVED DISAPPROVED DATE: AMENDED 11. AGENDA BILL NO 2. CLEARANCE COMMENTS: N/A 5. IMPACT ON NON-PASSAGE: Less than full membership on the Commission. 6. IMPACT ON STAFFING, BUDGETS, FACILITIES, EQUIPMENT OR OTHER RESOURCES: N/A 7. ~$EARCH SOURCES: N/A CITY OF BREIV1ERTON APPLICATION FOR CITY BOARDS/COMMISSIONS/COMMITTEE NOTE: As an applicant for a City Board, Commission or Committee, your name, address, and You will be contacted before telephone number will be available to the press and public. any action is taken on your appointment. (Please type or print clearly) NAME: HOME ADDRESS: DATE: I~-- i- '~ "7 PHONE: (H) OCCUPATION: EDUCATION: 3'. T'~. - ~eor-C,-E t~,*r~OO PROFESSIONAL/COMMUNITY ACTIVITIES: LOCAL REFERENCES (name & phone number): lAM () () () () () () () () INTERESTED IN SERVING ON (please check one or .,/ Disability Action Committee (x~ Civil Service Commission(18 yrs. & older) ( ) Urban Forest Committee ( ) Cable Communications Advisory Committee ( ) Community Development Block Grant ( ) Advisory Committee ( ) Youth Council ( ) Safe Streets Steering Committee ( ) Citizen's Commission on Council Salaries more): Planning Commission (18 yrs. & older) Parks & Recreation Commission Ethics Commission Parking Advisory Board Solid Waste Management Bremerton Housing Authority Board of Appeals, Housing/Building Codes Mayor's Select Committee on Law Enforcement Is this an application for reappointment? /Jo If yes, how many years have you served on this commission/committee? PLEASE RETURN TO: Mayor's Office 239 4th Street Bremerton, WA 98337 Signature Applications be reviewed periodically to determine continued availability. information may be put on back. / d Additional pertinent AGENDA BILL BREMERTON CITY COUNCIL SUBJECT: Professional Services Agreement with The Bumgardner Archkects for pre-design services For a new clubhouse at the Gold Mountain Goff Complex. FOR AGENDA OF: 18 February 1998 ORIGINATING DEPT: Parks & Recreation ORIGINATOR: Jim Spencer, Interim Director DATE SUBMITTED: February 5, 1998 2. CLEARANCES: 3. EXHIBITS: (Comment tva back if necessary) ~ /~ f . . Parks & Recreation Director: ~- J~,,,q~l~ Professmnal Sermces Agreement with City Treasur~The Bumgardner Architects. City Attorney: Purchasing: _~,_ ..... Fiscal & Budget: °d 4. SUMMARY STATEMENT AND REQUIREMENT FOR COUNCII, ACTION: In 1997, the Gold Mountain Golf Complex did just under 115,000 rounds from a clubhouse that was considered inadequate before the new Olympic Course opened. The Current clubhouse is in poor condition with its leaky roof, failing heaters and air conditioning, shortcomings relative to ADA requirements, and general lack of space. Requests for Statement of Qualifications from interested architectural firms went out in September of 1997 to design a new clubhouse. Twenty-three firms responded. This group was short-listed down to five, and each interviewed at the end of October. The Bumgardner Architects were selected. Reference checks were made and proved very favorable. Design will be done in phases, and contracted accordingly. The first phase is pre-design. The intent of pre-design service is to clearly define an overall project scope including building program, conceptual site and building planning, utility requirements, and total project budget. The costs associated with this phase are not to exceed $20,200.00. 8. RECOMMENDATION: City Council make a motion to authorize and direct the Mayor to execute the Professional Services Agreement with The Bumgardner Architects to provide pre-design services as described under Scope of Work in the Professional Services A~eement. 9. RESPONSIBLE OFFICIAL: Jim Spencer ENFORCEMENT OFFICIAL: Jim Spencer EXPIRATION DATE: REVIEW DATE: PULLED TABLED COUNCIL DIRECTIVE: 10. NOTICE OF ACTION APPROVED DISAPPROVED DATE: AMENDED 11. AGENDA BILL #: /7 2. CLEARANCE COMMENTS: j. IMPACT OF NON-PASSAGE: We will not be able to begin design ora new clubhouse for the Gold Mountain Golf Complex. 6. IMPACT ON STAFFING~ BUDGETS, FACILITIES~ EQUIPMENT OR OTHER RESOURCES: The clubhouse design project has been budgeted in 1998 in Fund 407. Some staff'time will be required for input and review. This time is absorbable within current staffing levels. 7. RESEARCH SOURCES: /? PROFESSIONAL SERVICES AGREEMENT The Bumgardner Architects TltlS AGREEMENT is between the City ofBremerton, a municipal corporation (hereinafter referred to as "City") and The Bumgardner Architects (hereinafter referred to as "Consultant"). WlTNE S SE TH: 1. SCOPE: Phase One is pre-design services for a new clubhouse at the Gold Mountain Golf Complex. The intent of pre-design service is to clearly define an overall project scope including building program, conceptual site and building planning, utility requirements, and total project budget. More fully described in Exhibit "A" and incorporated herein. 2. TERM: Contract shall commence on the date of this agreement and will terminate on December 31, 1998, unless otherwise extended by the City. 3. COMPENSATION: City shall pay Consultant compensation as follows: Total fees and expenses under this Agreement shall not exceed Twenty Thousand Two Hundred Dollars ($20,200.00). Consultant shall submit regular statements describing the services rendered with a breakdown for work completed as authorized under this Agreement. The City, upon receipt of the completed statement, shall promptly process said claim for payment. 4. RELATIONSHIP OF PARTIES: The parties understand and agree that Consultant is a firm skilled in matters pertaining to architecture and will perform independent functions and responsibilities in the area of its particular field of expertise. Consultant and its personnel shall act as independent contractors and not employees of the City. As such they have no authority to bind the City nor control employees of the City, contractors, or other entities. Within the performance of these duties, Consultant shall work under the direction of the Director of Parks and Recreation. 5. INDUSTRIAL INSURANCE: Consultant agrees to provide for State industrial insurance coverage for its personnel as required by State law. 6. LICENSE AND TAXES: Consultant shall possess a current Bremerton Business License and any regulatory license required to fulfill Consultant obligations under this Agreement. B & O taxes shall be paid when due and Consultant, by this Agreement, assigns any payments due under this Agreement to the City Clerk for payment of such taxes which have been declared delinquent. 7. INSURANCE AND HOLD HARMLESS: Prior to and during the performance of the work covered by this Agreement, Consultant shall provide the Risk Manager for the City of PROFESSIONAL SERVICES AGREEMENT --1-- Bumgardn. PSA- Disk 1 - 2/2/98 Bremerton with evidence that it has obtained and maintains in full force and effect during the term of this Agreement a policy of professional liability insurance, providing coverage of at least $500,000.00 against professional liability for errors and omissions in connection with the work to be performed by Consultant under this Agreement. Risk Manager shall be provided thirty (30) days' written notice of any cancellation of said professional liability insurance. Consultant shall, at all times, be solely responsible for the acts or failures to act of its personnel which occur or arise in any way out of the performance of this contract. Consultant agrees to save and hold the City, its personnel and officials, harmless from all costs, expenses, losses, and damages, including the cost of defense, incurred as a result of any acts or omissions of Consultant's personnel relating to the performance of this contract. 8. GENERAL CONDITIONS: a. Reports and Information - Consultant, at such times and in such forms as the City may require, shall furnish the City such reasonable periodic reports and documents as it may request pertaining to the work or services undertaken pursuant to this Agreement, the costs and obligations incurred or to be incurred in connection therewith, and any other matters covered by this Agreement. Consultant will maintain accounting records in accordance with generally accepted accounting principles and practices to substantiate all invoiced amounts. b. Entire Agreement - This Agreement constitutes the entire agreement between the parties and both parties acknowledge that there are no other agreements, written or oral, that have not been fully set forth in the text of this Agreement. There are attached hereto and incorporated by reference as part of this Agreement Exhibit "A". c. Amendments - The parties hereby further agree that this Agreement cannot be amended or modified without the written concurrence of both parties. d. Notices - Any notices required to be given by the City to Consultant or by Consultant to the City shall be in writing and delivered to the parties at the following addresses: City Clerk 239 Fourth St. Bremerton, WA 98337 The Bumgardner Architects 101 Stewart Street, Suite 200 Seattle, WA 98101-1048 e. Waiver - Failure to insist upon strict compliance with any terms, covenants or conditions of this Agreement shall not be deemed a waiver of such, nor shall any waiver or relinquishment of such right or power at any time be taken to be a waiver of any other breach. f. Compliance with State, Local and Federal Laws - Consultant agrees to comply with all applicable local, state and federal laws in performance of all services under this Agreement. PROFESSIONB_L SERVICES ]~GREEMENT -2- Bumgardn. PSJt- Disk 1 - 2/2/98 g. Applicable Law; Venue - This Agreement shall be construed and interpreted in accordance with the laws of the State of Washington and, in the event of dispute, the venue of any action brought hereunder shall be in Kitsap County Superior Court. h. Attorney Fees - The substantially prevailing party in any litigation arising hereunder shall be entitled to its reasonable attorney's fees and court costs, including appeals, if any. 9. NONDISCRIMINATION: Consultant shall not discriminate in employmem or services to the public on the basis of race, color, national origin, sex, religion, age, marital status or disability, except employment actions based on a bona fide occupational qualification. 10. TERMINATION: This Agreement may be terminated by either party for convenience upon thirty (30) days' written notice to the other party, or for cause if either party fails substantially to perform through no fault of the other and does not commence correction within five (5) days of written notice and diligently completes the correction thereafter. Upon such termination, City will be entitled to reports showing the status of all matters upon which Consultant is advising the City as of the effective date of termination. IN WITNESS WHEREOF the parties hereto have executed this Agreement the date and year indicated. THE BUMGARDNER ARCHITECTS. Date: BY: TIM HOSSNER CITY OF BREMERTON Date: DEPARTMENTAL APPROVAL: BY: LYNN S. HORTON, Mayor JIM SPENCER, Director of Parks and Recreation APPROVED AS TO FORM: GLENNA MALANCA, City Attorney RECEIVED FOR FILING: KATHLEEN L. McCLUSKEY, CITY CLERK PROFESSIONAL SERVICES AGREEMENT -3- Bumgardn. PSA - Disk 1 - 2/2/98 jAN-29-1998 12:20 ~UMGARDNER ARCH 2~6 44? 8194 P.~2/03 B~G~NER ~TERIOR,DESIGN " 1/ /gS [~OMALD T ~l~U~e-cIl: .MA SCOPE OF PREDESIGN SERVICES General Predesign services axe the Fn-st phase of design services which The Bumgarctne: Architects will provide the City of Bremerton for a New Clubhouse at the Cold Mountain Gol~ Complex. The second phase of design services wilt include arc. hitect~al ~md engineering basic services which will be contracted ~or at the conclusion of prede~igrt. The intent of predesign sel-~es is to dearly define an overall proiect scope including building program, col~:eptual site and building pla.hi, g, utility requirements, arid total proiect budget. In detaLl, we will proceed as ~ollows: · ProSramming Work with Scott Alexander, Jim Spencer, Dan Miller, and other members of the board of directors as necessary to detennin~ the program requirements for the building. Prepare a program document including: - description of anticipated uses to be accommodated by the building - square footage requirements for each use - hlrnis~g and equipmentrecluirements - exterior space requirements for service and staging - issues of orientation and architectuxal c. haracter Site and Utility htvesti6ation Provide civil and electzical engineering to de~ info~~ about the exi~ling site and utilities including - Grading Requirements - Hardscape: Roads I~att~ Parking Water (domestic axtd fixeflow) Septic System (evaluate existing) Storm Drainage Natural Gas Electrical Service Telephone and Communications For the above we will evaluate existing conditions, review and recommend alternative conceptual design scenarios and provide conceptu~., cost k~foiii-~tior~ JAN-29-1998 12:20 IGARDNER ARCH 206 449 8194 P.03×03 New Clubhouse for Gold Mountain Golf Complex 1/28/98 .O Conceptual Site and Building Design Provide a conceptual design proposal based upon the program and site information. This is will be a diagramatic plan which delineates s/ze, location and configurations of spaces and their relative adjacencies; interior circulation; site design layout with necessary site uses and circulation including parking, cart staging, service access, cart washing and storage, cart paths, etc. The conceptual design is a planning tool that the conceptual budget is then based upon. (Renderings such as exterior perspectives are not a part of this phase of work.) Cost Estimate and Project Budget: Based upon the program and conceptual design, we will prepare a prel/minary construction cost estimate based upon unit costs, and a total project budget for approval. The project budget will include: Sitework (grading and paving) Utilities Dernoli~ion Building construction cost FFE (Furnishings, Fixtures, and Equipment) Landscaping and irrigation Design fees Reimbursable expenses - Permit fees Required testing and inspect/om State sales tax Other development costs as appI/cable Predesign Report: At the conclusion of predesign, we will prepare a written report of our findings and recommendations for presentation to the board of directors and others as necessary. Project' Schedule: We will complete the above scope within approximately 30 days of approval and notification to proceed. We anticipate three site visits/meetings with the owner during this phase of work. AGENDA BILL BREMERTON CITY COUNCIL 1. SUBJECT: CORROSION CONTROL & FLUORIDATION FACILITY - PURCHASE OF CHEMICAL PUMPS of Pu (Comment on back if necessary) rks & Utilities FOR AGENDA OF: February 18, 1998 ORIGINATING DEPT: Public Works & Utils ORIGINATOR: R. Witt, City Eng~ DATE SUBMITTED: February 3, 1998 3. EXHIBITS: 1. Location Map 2. Quote from APSCO for Eqpt ENDORSEMENT ~ INFORMATION [] APPROVED BY COUNCIL SIDENT FOR SUBMITTAL: 4. SUbSqAi~Y STATEMENT AlqD REQUIREMENT FOR COUNCIL ACTION: The Corrosion Control and Fluoridation Facility (CCFF) includes four chemical feed pumps. Due to the wide range of chemical flowrates required along with the necessity to operate the facility remotely, only one type of pump is appropriate for the chemical dosing. To ensure that the appropriate pumps are procured, the pumps and controllers are to be sole source items. During design a quote of $32,106.00 (plus sales tax) was obtained from the equipment supplier for the four chemical feed pumps and associated equipment. This cuote is valid 5. RECO594ENDATION: The City Council approve a purchase order for $32,106.00 with APSCO, Inc., for four chemical feed pumps for incorporation into the Corrosion Con%to! and Fluoridation Facility project, and authorize the Mayor to execute the same. RESPONSIBLE OFFICIAL: Direc%or Pub Wks & Uti! ENFORCEMENT OFFICIAL: Director Pub Wks & Util EXPIRATION DATE: REVIEW DATE: 10. NOTICE OF ACTION PULLED [] TABLED [] COUNCIL DIRECTIVE: APPROVED [] (ovER) DISAPPROVED [] AMENDED [ ] o CLEARANCE COMMENTS: 4. SUMMARY STATEMENT AND REQUIREMENT FOR COUNCIL ACTION - Continuation until March 20, 1998. After this date the cost for the equipment will increase by $6,800. Approval will allow the City to purchase the this equipment at the current quoted price. The equipment will be provided to the contractor for incorporation into the Corrosion Control and Fluoridation Facility. 5. IMPACT ON NON-PASSAGE: The project will be bid by contractors using the higher price for the chemical feed pumps of $38,906.00 plus sales tax. 6. IMPACT ON STAFFING, BUDGETS, FACILITIES, EQUIPMENT AND OTHER RESOURCES: Staffinq: No Impact. Budget: No Impact, funding for the pumps and associated equipment will be from the construction budget for the Corrosion Control and Fluoridation Project. Facilities/Equipment: No impact. 7. RESEARCH SOURCES: dVIAI I~OI,LVDOq "" :~ ""~ / ..,3f'lN3^¥ (.I.$3~ : ' 0~1£ 0~9 H ,kLl'llOV.-I NOLLYCll;BOfl'I,:I ONV 90a. I.NO0 NOISO~I~IO0 E! TNE P.O1 STONE -- APSCO IIqC 503 ~742485 AP$CO, INC. P.O. Box 2639 Kirktand, Washington 98083-2639 Ph: (206)822-3335 , Fax: (206)827-6171 February 2, 1998 CITY OF BREMERTON PUBLIC WORKS AND UTILITIES 3027 Olympus Drive Bremerton, Washington 98310-4739 A~enfion: Mr. Thomas Knuckey Fax (360) 478-5398 Subject: Bremerton Corrosion Control and Fluoridation Facility Montgomery Watson Engineers. Project # MW-102497 Spec Section 11258/11259 - Chemical Feed Equipment/Metering Pumps Milton Roy Metering Pump Quotation Purchase of Four (4) Centrac S Pumps, Controls and Accessories Dear IVIr. Knuckey: Milton Roy and APSCO are pleased to confirm our November 14, 1997 Quotation of equipment for your project as follows: C.O.S.: Maximum 12.3 GPH at 100 PSI for 50% Caustic Soda (NaOH) Service Equipment Nos. P-1 and P-2 Quanti'bj Two (2) Milton Roy Centrac S Model CS101104 Chemical Metering Pumps with 316 Stainless Steel Materials Liquid End, 5/8" Plunger Diameter, ple'te with Variable Speed Stepper Motor Drive, Microprocessor Controller i~) Nema 4X Stainless Steel Enclosure with External Keypad Control, 100:1 down range, Single Phase, 60 Hertz, 115 VAC, 4-20 mA Signal; two (2) 1/2" 316 S$ Back Pressure Valves Model VB0841 {one for each pump); Two {2) '~/2" 316 SS Pressure Relief (Safety) Valves Model VS0841 (one for e~ch pump); Two {2} 316 SS Pulsation Dampeners Model PR025-1E (one for each pump); Two (2) Calibration Columns Model TT-0500 {one for each pump); Two (2) Sets Spare Parts (one set for each pump) per specifications; 5*point Linearity 'rest wi'th Performance Curves for each pump; CSA Approval/C:er'~ifi. cation for all units; Submittal Data and O & M Manuals. C.O.S.: Maximum 5.8 GPH at 100 PSI for 20% - 30% Hydrofluorosilicic Aci(l (H~SiFs) Service, Equipmeltt Nos. P-4 and P-5 Om)ntity Two (2) t~Jl'ton Roy Centrac S Model CS077804 Chemical Metering Pumps with Kynar (PVDF) Materials Liquid End, 7/16" Plunger Diameter, complete with Variable Speed Stepper Motor Drive, Microprocessor Controller in Nen]a 4X Stainless Steel Enclosure with External Keypad Control, 100:1 turn-do~,m 'NE STONE -- APSCO INC $85 '742485 P. 02 CITY OF BREMERTON Attn: Mr. Thomas Knuckey RE: Bremerton Corrosion Control and Fluoridation Facility Montgomery Watson Engineers- Project # MW-102497 Spec Section 11258/11259. Chemical Feed Equipment/Metering Pumps Milton Roy Metering Pump Quotation Purchase of Four {4} Centrac S Pumps, Controls and Accessories Page Two February 2, 1998 range, Single Phase, 60 Hertz, 115 VAC, 4-20 mA Signal; two (2) 1i2" PVC Back Pressure Valves Model GVB082 (one for each pump); Two (2) 1/2" PVC Pressure Relief {Safety) Valves Model GVS082 {one for each pump); Two (2} PVC Pulsation Dampeners Model PR045-2E (one for each pump); Two {2} Calibration Columns Model TT-0240 {one for each pump); Two {2) Sets Spare Parts (one set for each pump) per specifications; 5-point I inearity Test with Performance Curves for each pump; CSA Approval/Certification for ali units; Submittal Data and O & M Manuals. Start-up Supervision/Testing/Training: Maximum Three (3) Days Total - by APSCO Total I'{et Pdce All Above Described Equipment $ 37,255.00 F, O. B. Factory, Freight Allowed to Jobsite. Shipment - 10 to 12 Weeks After Release to Manufacture. Submittals 'for approval (in Eight Sets) can be provided 3 to 4 Weeks after receipt of order, Eight {8) Sets of 0 & M Manuals are including in pricing and will be provided at 'time of shipment. :Decluct$: 1. Since the Centrac S is virtually pulseless flow, pulsation dampeners are normally not necessary. If Bremerton elects to delete the Four (4) Pulsation Dampeners and the One (1) Charging Hose Assembly from this quotation, deduct $ 2,668.00 from the above total net price. 2. If Bremerton elects to purchase only One (1) Set of Spare Parts for Each Size/ Service ot~ Pump, deduct $ 2,481.00 from the above total net price. The Revised Total Net Price if both above deducts are taken is $ 32,106.00. Pricing does no__t.' include pump bases; piping or tubing; tanks; any master programmable logic controller or panels other than described herein; valves, gauges, or other fittings except as described herein; anchor bolts; any installation; any field painting; or taxes of any kind, ~,~ E~ ' INE STONE -- APSCO INC 50~ ??42485 CITY OF BREMERTON Attn: Mr. Thomas Knuckey RE: 8remertoi) Corrosion Control and Fluoridation Facility NIontgomery Watson Engineers - Project # MW-102497 Spec Section 11258/11259 - Chemical Feed Equipment/Metering Pumps Milton Roy Metering Pump Quotation Purchase of Four (4) Centrac S Pumps, Controls and Accessories Page Three February 2, 1998 AWached are Milton) Roy's Terms and Conditions of Sale. Pricillg is valid for purchase order received by March 20, 1998, basis receipt of your letter of intent to purchase. Purchase Order should be made out to: Milton Roy Company, c/o APSCO, Inc., Kirkland, WA. (Invoicing will be by Milton Roy.) If you have aIw questions or we can be of further assistance, please contact either Roger Pe~'rin at (425) 822-33;35 or Elaine Stone at (503) 771-6147. Yours very truly, AP$CO, INC. Elaine H. Stone / for / Roger W. Perrin At~achme[lts AGENDA BILL BREMERTON CITY COUNCIL SU~ECAT: Telecommunication Tower Leases with U S West FOR AGENDA OF: February 18~ 1998 ORIGINATING DEPT: Admin. Services ORIGINATOR: K. McCluskey.~~ DATE SUBMITTED: February 12~ 1998 ~: (comment on back 3. if necessary) ~PW&U Director ~/~-~,~ ~ City Attorney ~~/A~-~ ~(~z/~4~_~ Fiscal & Budget,~~.~~ Operations ~~c~ ~ Lease Agreements 4. SUMMARY STATEMENT AND REOUIREMENT FOR COUNCIL ACTION: U S West has proposed to build two 140 ft. telecommunication towers on City property located at the utility building on Olympus Drive and on utility land out at Anderson Creek adjacent to Highway 16. These leases are for 10 years with each tower site generating $5,000 per year in rent. The City and Cencom will co~locate at no charge on these new towers while accommodating Cencom's future expansion needs. Future commercial carriers that co~locate on these two towers will pay 100% of their negotiated rent to the City. 8. RECOMMENDATION: 1. Motion to approve the lease with U~S West to build a teleconrmmications tower at Olympus Drive. 2. Motion to approve the lease with U S West to build a telecouraunications tower at Anderson Creek. RESPONSIBLE OFFICIAL: ?W&U Director ENFORCEMENT OFFICIAL: ~' " EXPIRATION DATE: REVIEW DATE: PULLED TABLED COUNCIL DIRECTIVE: 10. NOTICE OF ACTION APPROVED DISAPPROVED AMENDED 11. DATE: AGENDA BILL NO: 3/ OLRARANCE COMMENTS (cont.): 4. SUMMARY STATEMENT (cont.): 5. IMPACT ON NON-PASSAGE: Loss of lease revenue and opportunity to accommodate Cencom expansion needs. IMPACT ON STAFFING, BUDGETS. FACILITIES~ EOUIPMENT OR OTHER RESOURCES 7. RESEARCH SOURCES: TELECOMMUNICATIONS. FACILITIES OPTION AND LEASE AGREEMENT TI:tlS LEASE AGREEMENT entered into by and between the City ofBremerton, a municipal corporation duly organized and existing under the laws of the State of Washington, as Lessor (hereinafter referred to as "City") and U S WEST COMMUNICATIONS WIRELESS GROUP, a division ofU S WEST Communications, Inc. (hereinafter referred to as "Lessee"). WITNES SETH: 1. PREMISES. Upon exercise of the option granted to Lessee in Section 6 of this Lease, the City hereby leases to the Lessee real property located at 3027 Olympus Drive for housing, installing, constructing, operating and maintaining certain telecommunications facilities, said real property and facilities being more specifically described and/or depicted in Schedule A, attached hereto and specifically incorporated herein (hereinafter referred to as Premises). Upon exercise of its option, Lessee agrees to accept such real property for such purpose, subject to the considerations, terms and conditions specified in this Telecommunications Facilities Lease Agreement (hereinafter referred to as "Lease"). 2. DEFINITIONS. For the purpose of this Lease, and the interpretation and enforcemem thereof, the following words and phrases shall have the following meanings, unless the context of the sentence in which they are used shall indicate otherwise: "Person" means and includes corporations, companies, associations, joint stock companies or associations, firms, partnerships, limited liability companies and individuals and includes their lessors, trustees and receivers; "Public street" means any highway, street, alley or other public right of way for motor vehicle travel under the jurisdiction and control of the City which has been acquired, established, dedicated or devoted to highway purposes; "Public way" means and includes all public streets and utility easemems, as those terms are defined herein, now or hereafter owned by the City, but only to the extent of the City's right, title, interest or authority to grant a permit or lease to occupy and use such streets and easements for telecommunications facilities; "Telecommunications carrier" means and includes every person that directly or indirectly owns, controls, operates or manages plant, equipment or property within the City, used or to be used for the purpose of offering telecommunications service; "Telecommunications facilities" means the plant, equipment and property, including but not limited to, cables, wires, conduits, ducts, pedestals, antennae, towers, electronics, equipment LF..A~EAGREEMENT - 1 U $ WEST WIRELF~ - Olymp~ Drive storage structures and other appurtenances used or to be used to transmit, receive, distribute, provide, house or offer telecommunications services; "Telecommunications provider" means and includes every person who provides telecommunications services over telecommunications facilities without any ownership or management control of the facilities; "Telecommunications service" means the providing or offering for rent, sale or lease, or in exchange for other value received, of the transmittal of voice, data, image, graphic and video programming information between or among points by wire, cable, fiber optics, laser, microwave, radio, satellite or similar facilities, with or without benefit of any closed transmission medium. "Utility easement" means any easement owned by the City and acquired, established, dedicated or devoted for public utility purposes not inconsistent with telecommunications facilities. 3. USES AND PURPOSES. Lessee shall have the use and occupancy of the Premises for the purpose of transmission and reception of telecommunication and signals in any and all frequencies using real property and telecommunications facilities approved in Schedule A. Lessee shall have the right, at its expense, to erect and maintain on the Premises improvements, personal property and facilities, as described in Schedule A and pursuant to successful completion of all requisite permit processes. City shall provide Lessee ingress, egress, and twenty-four hour a day, seven days a week access over the property to the Premises adequate to service the Premises and the telecommunication facilities at all times during this Lease at no additional charge to Lessee except Lessee shall agree to sign a mutual road maintenance agreement to be provided by City with all other users of access roads not included in the public road system and Lessee shall agree to share equally the annual charge of maintaining the access roads not to exceed Three Hundred and No/100 Dollars ($300.00). 4. LEASE APPLICATION. Any person that desires to solicit the City's approval of a Lease shall file a lease proposal with the City which shall include the following: A. The identity and legal status of the applicant, including any affiliates; B. The name, address, telephone number and title of the officer, agent or employee responsible for the accuracy of the lease application statement; C. A description of the service that the applicant intends to offer or provide, or is currently offering or providing to persons, firms, businesses or institutions within the City, or to those outside the City limits using facilities located within the City; LEASE AOt~I~4ENT - 2 U S ~ WIREL~S - Olyml~ Drive D. A description of the telecommunications facilities or other equipment proposed to be located upon City property; E. A description of the City property upon which the applicant proposes to locate telecommunications facilities or other equipment; F. Signed set of owners drawings, preliminary plans and specifications in sufficiem detail to identify: (1) Manufacturer standards, punch list on workmanship inspections for furore sign-off by City inspectors for all telecommunication facilities being proposed by Lessee. (2) The location(s) of existing telecommunications facilities or other equipment upon the City property, whether publicly or privately owned. (3) The location and source of electric and other utilities required for the installation and operation of the proposed facilities. G. Accurate scale conceptual drawings and diagrams of sufficient specificity to analyze the aesthetic impacts of the proposed telecommunications facilities or other equipment; lt. Whether the applicant intends to provide cable service, video dialtone service or other video programming service, and sufficient information to determine whether such service is subject to cable franchising; L An accurate map showing the location of any existing telecommunications facilities in the City that applicant intends to use or lease; J. A description of the services or facilities that the applicant will offer or make available to the City and other public, educational and governmental institutions; K. Evidence that the applicant has explored possible co-location sites on existing tower sites on City or private property. L. Such other and further information as may be requested by the City; and A non-refundable application fee of Five Hundred and No/100 Dollars ($500.00). LEASE AGREEMENT - 3 U S WE,ST WIRELESS - Olyn,on Drive 5. NON-EXCLUSIVE LEASE. This Lease is nonexclusive and does not preclude the City from granting a similar lease, right, license, franchise, etc. to other carriers, providers or other persons for telecommunications or any other purpose. 6. OPTION. The City, for and in consideration of One Thousand and No/100 Dollars ($1,000.00), this Lease and mutual considerations, the receipt of which is hereby acknowledged, does hereby grant and convey unto Lessee, its successors, assigns, and agents an option to lease the Premises as set forth in this Lease. This option to lease City's property may be exercised by Lessee at any time within the first twelve (12) months of the date of this Agreement (option period) by providing City with written notice of Lessee's intent. During the option period Lessee~ its agents, engineers, or contractors shall have the fight to enter upon City's property to inspect, examine, sample and conduct all engineering tests or studies of the Premises, to apply for and obtain ail licenses and permits required for the Lessee's use of the Premises from ail applicable governmental or regulatory entities, and otherwise do those things on the Premises that, in the opinion of Lessee, are necessary to determine the physical condition of the Premises. City's title to the Premises, and the feasibility or suitability of the Premises for Lessee's use, all at Lessee's expense. Lessee shall not be liable to City or any third party on account of any pre- existing defect or condition on or with respect to the Premises, whether or not such defect or condition is disclosed by Lessee's inspection, although Lessee shall be responsible for any damage, loss or destruction to the Premises as a result of the actions of its employees, representatives or agents during the due diligence activities. 7. TERM OF LEASE. This Lease shall be valid for a term often (10) year(s) commencing upon exercise of option described in Section 6. 8. RIGItTS GRANTED. This Lease does not convey any right, title or interest in the City property, but shall be deemed a license only to use and occupy the City property for the limited purposes and term stated in the Lease. Further, this Lease shall not be construed as any warranty of title. 9. INTERFERENCE WITH OTItER USERS. The Lessee acknowledges that the City may enter into leases with other tenants for their equipment and telecommunications facilities for the purposes of transmitting and receiving telecommunication signals from City property. The City, however, is not in any way responsible or liable for any interference with Lessee's use of the City property which may be caused by the use and operation of any other tenant' s equipment, even if caused by new technology. In the event that any other tenant's activities interfere with the Lessee's use of the City property, and such use or operation was not in existence on the date of execution of this lease, and the Lessee cannot resolve this interference with the other tenants, the City will, upon written request by Lessee cause such interfering use to cease. The Lessee shall cooperate with all other tenants to identify the causes of and work towards the resolution of any electronic interference problem. In addition, the Lessee agrees to eliminate any radio or television interference caused to City-owned facilities or surrounding residences at Lessee's own expense and without installation of extra filters on City-owned equipment. Lessee further agrees to accept I.RASE AGREEMENT - 4 U S WEST WIRELESS - Ol~,mpus Drive such interference as may be received fi.om City operated telecommunications or other facilities located upon the City property subject to this Lease except those City antenna sites placed upon Lessee's facilities pursuant to Section 12.B. 10. OWNERSltlP AND REMOVAL OF IMPROVEMENTS. All buildings, landscaping and all other improvements, except telecommunications equipment, shall become the property of the City upon expiration or termination of the Lease. In the event that the City requires removal of such improvements after termination of the Lease, such removal shall be accomplished at the sole expense of the Lessee and completed within 30 days after receiving notice fi.om the City requiring removal of the improvements. Additional time may be granted upon the discretion of the City which approval shall not be unreasonably withheld. In the event that telecommunications facilities or other equipment are left upon City property after expiration or termination of the lease, they shall, at the City's option, become the property of the City if not removed by the Lessee upon 30 days written notice from the City. If Lessee fails to remove the property upon request by the City, Lessee agrees to reimburse the City for any and all removal costs incurred by the City. 11. CANCELLATION OF LEASE BY LESSEE. A. All Leases are contingent upon the Lessee obtaining all necessary permits, approvals and licenses for the proposed facilities. In the event that the Lessee is unable to obtain all such permits, approvals and licenses, it may cancel its lease, and obtain a pro rata refund in any rents paid, without further obligation by giving 30 days prior written notice to the City. Lessee agrees to restore City property to original condition if cancellation is requested. B. In the event that the holder of a Lease determines that the City property is unsuitable for its intended purpose, the Lessee shall have the right to cancel the Lease upon 120 days written notice to the City. However, no prepaid rent shall be refundable. 12. COMPENSATION TO THE CITY. A. Starting on the first of the next month after Lessee has received City approval for zoning, the rent commencement date, and on the first day of each month thereat~er during the term of the Lease, Lessee shall pay rent at a rate of Four Hundred Sixteen and 67/100 Dollars ($416.67) per month, prorated for any partial months. On each anniversary of the rent commencement date, the annual rent due shall be increased by four percent (4%) over the annual rent due for the preceding year. Lessee agrees to pay the state leasehold tax, which is directly attributable to this Lease. Any payments received after the due date shall include a late payment penalty of 2% of the annual rental fee for each day or part thereof past the due date. The rental fee rate will be reviewed annually. LEASE AGREEMENT - 5 u s WE~T WIRELF_~$ - Olympus Driv~ B. Additional Consideration. City shall be allowed, at City's sole expense, to attach City's communication antennas, that are in addition to initial attachments described in Exhibit B, to Lessee's telecommunications tower provided City first obtains Lessee's prior written consent for such attachments. Lessee's approval for said attachments shall be contingent upon determining whether Lessee's tower is properly engineered to accommodate City's antenna system and such transmission shall not result in any impairment or diminution in the quality of Lessee's service. Further, said approval shall be given only atter Lessee has reviewed and approved City's engineering plans for said antenna attachments in a location specified by Lessee. Approval shall not be unreasonably withheld. Upon written approval by Lessee, said attachments shall be installed by qualified licensed contractors and in accordance with Lessee's directives for the method of installment and with perm/ts issued by all applicable governmental authorities having jurisdiction which shall first be obtained by City at its sole expense. City acknowledges and agrees that Lessee reserves the right to relocate City's antennas at any time(s) to accommodate modifications required for Lessee's future system requirements, provided such relocation shall provide equivalent quality of service after such relocation. Initial attachments to the new tower shall be at the expense ofU S WEST as described in Exhibit B. Further, the move of existing users to the new tower shall be accomplished with adequate notice to all users prior to the transfer and in the minimal amount of time and disruption. 13. RENEWAL APPLICATION. A Lessee that desires to renew its Lease under this Article shall, not more than one hundred twenty (120) days nor less than sixty (60) days before expiration of the current Lease, file an application with the City for renewal of its Lease which shall include the following: A. The information required pursuant to Section 4; B. Any additional information required based upon elements of the current Lease agreement between the City and the Lessee; C. All deposits or charges required pursuant to City ordinances; D. A non-refundable application fee in the amount of Five Hundred and No/100 Dollars ($500.00). The City reserves the right to extend the review period for the renewal application if additional information is required. 14. OBLIGATION TO CURE AS A CONDmON OF RENEWAL. No Lease shall be renewed until any ongoing violations or defaults in the Lessee's performance of the Lease have been cured, or a plan detailing the corrective action to be taken by the Lessee has been approved by the City. LEASE AGREEMENT - 6 U S WEST WIRELESS - Olympus Drive 15. IMPROVEMENTS. During the term of this Lease il'Lessee wishes to expand the initial configuration contained in Schedule A, Lessee will submit a new application pursuant to Section 4. Compensation for the proposed expansion will be negotiated upon approval of the application. 16. POLICE POWER. In accepting this Lease, the Lessee acknowledges that its rights hereunder are subject to the legitimate rights of the police power of the City to adopt and enforce general ordinances necessary to protect the safety and welfare of the public and it agrees to comply with all applicable general laws enacted by the City pursuant to such power. 17. INTERFERENCE WITH THE PUBLIC WAYS. The Lessee shall not locate or maintain its telecommunications facilities so as to unreasonably interfere with the use of the public ways by the City, by the general public or by other persons authorized to use or be present in or upon the public ways. All such facilities which interfere with public ways shall be moved by the Lessee, at the Lessee's cost, temporarily or permanently, as determined by the City Public Works and Utilities Director. 18. REPAIR AND EMERGENCY WORK. In the event of an unexpected repair or emergency, the Lessee may commence such repair and emergency response work as required under the circumstances, provided the Lessee shall notify the City as promptly as reasonably possible, before such repair or emergency work commences or as soon thereafter as possible if advance notice is not practicable. 19. MAINTENANCE OF LEASE FACILIT1-ES. The Lessee shall maintain its facilities in good and safe condition and in a manner that complies with all applicable federal, state and local requirements. Lessee shall not permit waste, damage, or injury to the premises including any City property, public ways of the City, other ways or other property, whether publicly or privately owned, located in, on or adjacent thereto. Lessee shall not restrict site access to City. City shall have the exclusive right to inspect the Lessee's telecommunications facilities and equipment at any time during the term of this Lease to ensure compliance with the terms and conditions herein; Provided, however, Lessee has the right to be present at all inspections of Lessee's telecommunications facilities and equipment, and City shall give Lessee at least 24 hours prior notice of such intent. 20. SIGNAGE. Lessee shall display a current sign on telecommunication facilities identi~ing Lessee, address and a 24 hour phone number. 21. RELOCATION OR REMOVAL OF FACILITIES. Within thirty (30) days following written notice fi.om the City, the Lessee shall, at its own expense, temporarily or permanently remove, relocate, change or alter the position of any telecommunications facilities within the public ways or upon City property whenever the City Public Works & Utilities Director shall have determined that such removal, relocation, change or alteration is reasonable necessary for: LF. ASE AGREEMENT - 7 U S WEST WIRELESS - Olympus Drive A. The construction, repair, maintenance or installation of any City or other public improvement in or upon the public ways; and public ways. The operations of the City or other governmental entity in or upon the Additional time for removal or relocation may be granted at the discretion of the City which extension shall not be unreasonably withheld. If Lessee fails to remove the property upon request by the City, Lessee agrees to reimburse the City for any and all removal costs incurred by the City. 22. REMOVAL OF UNAUTHORIZED FACILITIES. Within thirty (30) days following written notice from the City, Lessee or any person who owns, controls or maintains on behalf of Lessee any unauthorized telecommunications system, facility or related appurtenances within the public ways or real property of the City may, remove such facilities or appurtenances from the public ways or property of the City. A telecommunications system or facility is unauthorized and subject to removal in the following circumstances: A. Upon expiration or termination of the Lessee's Lease without approved extension or renewal; B. Upon abandonment of a facility within the public ways or real property of . the City. Any property of a Lessee shall be deemed abandoned if left in place 30 days after expiration or termination of the Lease; of a Lease; Ce If the system or facility was constructed or installed without the prior grant D. If the system or facility was constructed or installed without the prior issuance of a required City permits; and E. If the system or facility was constructed or installed at a location not permitted by the Lease. Provided, however, that the City may, in its sole discretion, allow a Lessee, or other such persons who may own, control, or maintain telecommunications facilities within the public ways or property of the City to abandon such facilities in place. No facilities of any type may be abandoned in place without the express written consent of the City. Any plan for abandonment or removal of a Lessee's facilities must be first approved by the Public Works and Utilities Director, and all necessary permits must be obtained prior to such work. Upon authorized permanent abandonment of the property of such persons in place, the property shall become that of the City, and such persons shall submit to the City an instrument in writing, to be approved by the City Attorney, transferring to the City the ownership of such property in which event, Lessee shall LEASE AGREEMENT - 8 U S ~ WIRELESS - Olympus Drive have no further obligations or liability with respect to such facilities. The provisions of this Section shall survive the expiration, revocation, or termination of the Lease granted hereunder. If the City does not authorize abandonment and Lessee fails to remove such facilities within thirty (30) days following notice, Lessee agrees to reimburse the City for any and all costs incurred by the City for facilities removal. 2:3. EMERGENCY REMOVAL OR RELOCATION OF FACILITIES. The City retains the right and privilege to cut or move any telecommunications facilities located within the public ways of the City, as the City may determine to be necessary, appropriate or useful in response to any public health or safety emergency. The City shall not be liable to Lessee, or any other party for any direct, indirect, or any other such damages suffered by any person or entity of any type as a direct or indirect result of the City's actions under this Section. 24. DAMAGE TO FACILrrIES. Unless directly and proximately caused by the willful, intentional or malicious acts by the City not otherwise authorized herein, the City shall not be liable for any damage to or loss of any telecommunications facility upon City property or within the public ways of the City as a result of or in connection with any public works, public improvements, construction, excavation, grading, filling, or work of any kind on such City property or within the public ways by or on behalf of the City. 25. RESTORATION OF PUBLIC WAYS, OTIIER WAYS AND CITY PROPERTY. A. When the Lessee, or any person acting on its behalf, does any work in or affecting any public ways, other ways or City property, it shall, at its own expense, promptly remove any obstructions therefrom and restore such ways or property to City construction standards as adopted before the work was undertaken, unless otherwise directed by the City. Lessee shall obtain all requisite permits for such work. B. If weather or other conditions do not permit the complete restoration required by this Section, the Lessee shall temporarily restore the affected ways or property. Such temporary restoration shall be at the Lessee's sole expense and the Lessee shall promptly undertake and complete the required permanent restoration when the weather or other conditions no longer prevent such permanent restoration. C. The Lessee or other person acting in its behalf shall use suitable barricades, flags, flagxnen, lights, flares and other measures as required for the safety of all members of the general public and to prevent injury or damage to any person, vehicle or property by reason of such work in or affecting such ways or property. D. The Public Works and Utilities Director shall be responsible for inspection and final approval of the condition of the public ways, other ways, and City property following LEASE AGREEMENT - 9 U S WEST WIRELESS - Olympus Drive any construction and restoration activities therein. Further, the provisions of this Section shall survive the expiration, revocation, or termination of this Lease. 26. FACILITIES MAPS. The Lessee shall provide the City with a map or maps accurately reflecting the horizontal and vertical location and configuration of all of its telecommunications facilities within the public ways and upon City property. The Lessee shall provide the City with updated maps upon request by the City. 27. BOOKS, RECORDS AND MAPS. All books, records, maps and other documents, maintained by the Lessee with respect to its telecommunications facilities within the public ways and upon City property shall be made available for inspection by the City at reasonable times and intervals; Provided, however, that nothing in this Section shall be construed to require the Lessee to violate state or federal law regarding subscriber privacy, nor shall this Section be construed to require the Lessee to disclose proprietary or confidential information without adequate safeguards for its confidential or proprietary nature. 28. LEASED CAPACITY AND CO-LOCATION. The City encourages co- location on existing telecommunications facilities and to that end will accept tower lease applications from new carriers who wish to locate on Lessee's tower. Lessee shall review and approve placement of new carrier's equipment which approval shall not be unreasonably withheld. The City will negotiate any future leases including rents with new carders who co-locate and retain 100% of lease revenue from any future co-location on Lessee's tower. 29. UTILITIES. Electricity, HVAC and telephone service, or other utilities are to be provided to the Premises and Site at Lessee's expense and as outlined in Schedule A. City shall cooperate with Lessee in obtaining utility service. Lessee will provide a propane fueled generator with sufficient capacity to service existing tower users and support additional carders who co-locate. Lessee shall be reimbursed for this capital outlay on a prorata usage basis by future carders who benefit from the generator. 30. LICENSES AND TAXES. Upon commencement of the Lease, Lessee shall be responsible for paying real or personal property, excise leasehold, business and occupation, and/or other taxes or licenses which may in the future be assessed as a direct result of the Lessee's operations at the telecommunications facilities described herein. 31. INSURANCE. The Lessee shall, as a condition of the Lease, secure and maintain the following liability insurance policies insuring both the Lessee and the City, and its elected and appointed officers, officials, agents, employees, representatives, engineers, consultants, and volunteers as co-insureds against claims for injuries to persons or damages to property which may arise from or in connection with the exercise of the rights, privileges, and authority granted to the Lessee: LEASE AGREEMENT - 10 U S WEST WIP~LESS - Olympus Ddv¢ A. Comprehensive general liability insurance, written on an occurrence basis, with limits not less than: (1) $2,000,000.00 for bodily injury or death to each person; (2) $2,000,000.00 for property damage resulting from any one accident; and (3) $2,000,000.00 for all other types of liability. B. Automobile liability for owned, non-owned and hired vehicles with a limit of $2,000,000.00 for each person and $2,000,000.00 for each accident; C. Worker's compensation within statutory limits and employer's liability insurance with limits of not less than $1,000,000.00; D. Comprehensive form premises-operations, explosions and collapse hazard, underground hazard and products completed hazard with limits of not less than $2,000,000.00; E. The liability insurance policies required by this Section shall be maintained by the Lessee throughout the term of the Lease, and such other period of time during which the Lessee is operating without a Lease hereunder, or is engaged in the removal of its telecommunications facilities. The Lessee shall provide an insurance certificate, together with an endorsement naming the City, and its elected and appointed officers, officials, agents, employees, representatives, engineers, consultants, and volunteers as additional insureds, to the City prior to the commencement of any work or installation of any facilities pursuant to said Lease. Any deductibles or self-insured retentions must be declared to and approved by the City. Payment of deductibles and self-insured retentions shall be the sole responsibility of the Lessee. The insurance certificate required by this Section shall contain a clause stating that coverage shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. The Lessee's insurance shall be primary insurance as respects the City, its officers, officials, employees, agents, consultants, and volunteers. Any insurance maintained by the City, its officers, officials, employees, consultants, agents, and volunteers shall be in excess of the Lessee's insurance and shall not contribute with it; F. In addition to the coverage requirements set forth in this Section, each such insurance policy shall contain the following endorsement: "It is hereby understood and agreed that this policy may not be canceled nor the intention not to renew be stated until thirty (30) days atter receipt by the City, by registered mail, of a written notice addressed to the Administrative Services Director of such intent to cancel or not to renew." LEASE AGRI~.RMENT - 11 U S WEST WIRELESS - Olymt~ Drive G. Within 30 days after receipt by the City of said notice, and in no event later than 15 days prior to said cancellation or intent not to renew, the Lessee shall obtain and furnish to the City replacement insurance policies meeting the requirements of this Section. 32. GENERAL INDEMNIFICATION. The Lessee hereby releases, covenants not to bring suit and agrees to indemnify, defend and hold harmless the City, its elected and appointed officials, officers, employees, agents, representatives, engineers, and consultants from any and all claims, costs, judgments, awards, or liability to any person, including claims by the Lessee's own employees to which the Lessee might otherwise be immune under Title 51 RCW, arising from injury or death of any person or damage to property of which the negligent acts or omissions of the Lessee, its agents, servants, officers, or employees in performing under this Lease are the proximate cause. The Lessee further releases, covenants not to bring suit and agrees to indemnify, defend and hold harmless the City, its elected and appointed officials, officers, employees, agents, representatives, engineers, and consultants from any and all claims, costs, judgments, awards, or liability to any person including claims by the Lessee's own employees, including those claims to with the Lessee might otherwise have immunity under Title 51 RCW, arising against the City solely by virtue of the City's ownership or control of the rights-of-way or other public properties, by virtue of the Lessee's exercise of the rights granted herein, or by virtue of the City's permitting the Lessee's use of the City's rights-of-way or other public property, based upon the City's inspection or lack of inspection of work performed by the Lessee, its agents and servants, officers or employees in connection with work authorized on the City's property or property over which the City has control, pursuant to this Lease, or pursuant to any other permit or approval issued in connection with this lease. This provision waiving immunity for claims arising out of Title 51 KCW was specifically negotiated by the parties. This covenant of indemnification shall include, but not be limited by this reference, claims against the City arising as a result of the negligent acts or omissions of the Lessee, its agents, servants, officers, or employees in barricading, instituting trench safety systems or providing other adequate warnings of any excavation, construction, or work in any public right-of-way or other public property in performance of work or services permitted under this Lease. Inspection or acceptance by the City of any work performed by the Lessee at the time of completion of construction shall not be grounds for avoidance of any of these covenants of indemnification. Said indemnification obligations shall extend to claims which are not reduced to a suit and any claims which may be compromised prior to the culmination of any litigation or the institution of any litigation. In the event that the Lessee refuses the tender of defense in any suit or any claim, said tender having been made pursuant to the indemnification clauses contained herein, and said refusal is subsequently determined by a court having jurisdiction (or such other tribunal that the parties shall agree to decide the matter), to have been a wrongful refusal on the part of the Lessee, then the Lessee shall pay all of the City's costs for defense of the action, including ail reasonable expert witness fees and reasonable attorneys' fees and the reasonable costs of the City, including reasonable attorneys' fees of recovering under this indemnification clause. LEASE AGREEMENT - 12 U S WEST WIRELESS - Olympus Drive In the event of liability for damages arising out of bodily injury to persons or damages to property mused by or resulting from the concurrent negligence of the Lessee, and the City, its officers, employees and agents, the Lessee's liability hereunder shall be only to the extent of the Lessee's negligence. It is further specifically and expressly understood that the indemnification provided herein constitutes the Lessee's waiver of immunity under Title 51 RCW, solely for the purposes of this indemnification. This waiver has been mutually negotiated by the parties. The provisions of this Section shall survive the expiration or termination of this Lease agreement. Notwithstanding any other provisions of this Section, the Lessee assumes the risk of damage to its facilities located in the City's public ways, fights-of-way, easements, and property from activities conducted by the City, its officers, agents, employees, and contractors. The Lessee releases and waives any and ail claims against the City, its officers, agents, employees, or contractors for damage to or destruction of the Lessee's facilities caused by or arising out of activities conducted by the City, its officers, agents, employees, and contractors, in the public ways, rights-of-way, easements, or property subject to this Lease, except to the extent any such damage or destruction is caused by or arises from the sole negligence or any willful or malicious action on the part of the City, its officers, agents, employees, or contractors. The Lessee further agrees to indemnify, hold harmless and defend the City against any claims for damages, including, but not limited to, business interruption damages and lost profits, brought by or under users of the Lessee's facilities as the result of any interruption of service due to damage or destruction of the user's facilities caused by or arising out of activities conducted by the City, its officers, agents, employees, or contractors, except to the extent any such damage or destruction is caused by or arises from the sole negligence or any willful or malicious actions on the part of the City, its officers, agents, employees, or contractors. 33. CONSTRUCTION AND COMPLETION BOND. A performance bond written by a corporate surety acceptable to the City equal to at least 100% of the estimated cost of constructing the Lessee's telecommunications facilities within the public ways of the City or upon City property shall be deposited before construction is commenced. A. Except as provided below, the construction bond shall remain in force until 60 days after substantial completion of the work, as determined by the City, including restoration of public ways and other property affected by the construction. B. The construction bond shall guarantee, to the satisfaction of the City: (1) Timely completion of construction; (2) Construction in compliance with applicable plans, permits, technical codes, and standards; LEASEAGREElvIENT- 13 U $ WEST WIRELESS - Ol~ntms Drive (3) Proper location of the facilities as approved by the City; (4) Restoration of the public ways and other public or private property disrupted, damaged, or otherwise affected by the construction. The construction bond shall wan'ant said restoration work for a period of 1 year; (5) The submission of'as-built' drawings at~er completion of the work as required by this Chapter; and (6) Timely payment and satisfaction of all claims, demands or liens for labor, material or services provided in connection with the work. 34. ASSIGNMENTS OR TRANSFERS OF LEASE. Ownership or control of a Lease may not, directly or indirectly, be transferred, assigned or disposed of by sale, lease, merger, consolidation or other act of the Lessee, by operation of law or otherwise, without the prior written consent of the City, which consent shall not be unreasonably withheld or delayed, except as expressed by ordinance and then only on such reasonable conditions as may be prescribed therein. A. No Lease shall be assigned or transferred in any manner within twelve (12) months at~er the initial grant of the Lease, unless otherwise provided. B. Absent extraordinary and unforeseeable circumstances, system or integral part ora system shall not be assigned or transferred before construction of the telecommunications facility has been completed. C. The Lessee and the proposed assignee or transferee of the system shall provide and certify the following information to the City not less than sixty (60) days prior to the proposed date of transfer: O) Complete information setting forth the nature, terms and condition of the proposed transfer or assignment; (z) All information required of a lease applicant pursuant to Section 4 with respect to the proposed transferee or assignee; (3) Any other information reasonably required by the City; and (4) An application fee set by Section 4. I.g.&SE AGRE~NT - 14 U S WE~T WIREI23S - Olymp~ Drive D. No transfer shall be approved unless the assignee or transferee has the legal, technical, financial, and other requisite qualifications to own, hold and operate the telecommunications facility pursuant to this Lease. E. Unless otherwise provided in this Lease, the Lessee shall reimburse the City for all direct and indirect costs and expenses reasonably incurred by the City in considering a request to transfer or assign this Lease. No approval shall be deemed approved until all such costs and expenses have been paid. F. Any transfer or assignment of the lease, system, or integral part of a system without prior written approval of the City under this Section or pursuant to the Lease shall be void and is cause for revocation of the lease, except that Lessee may sublet and assign this Lease or portion thereof, and its other rights hereunder to any person or business entity which is a parent subsidiary or affiliate of Lessee without Lessor's consent. 35. TRANSACTIONS AFFECTING CONTROL OF LEASE. Any transactions which singularly or collectively result in a change of 50% or more of the ownership or working control of the Lessee, of the ownership or working control of the telecommunications facility, of the ownership or working control of affiliated entities having ownership or working control of the Lessee or of a telecommunications facility, or of control of the capacity or bandwidth of the Lessee's telecommunication system, facilities or substantial parts thereof, shall be considered an assignment or transfer requiring City approval pursuant to Section 34 hereof. Transactions between affiliated entities are not exempt from City approval. The Lessee shall promptly notify the City prior to any proposed change in, or transfer of, or acquisition by any other party of control of Lessee's company. Every change, transfer, or acquisition of control of a Lessee's company shall cause a review of the proposed transfer. In the event that the City adopts a resolution or other appropriate order denying its consent and such change, transfer or acquisition of control has been effected, the City may cancel the Lease. Approval shall not be required for mortgaging purposes or if said transfer is from the Lessee to another person or entity controlling, controlled by, or under common control with the Lessee. 36. REVOCATION OR TERMINATION OF LEASE. The Lease granted by the City to use or occupy public ways of the City or City property may be terminated for the following reasons: A. Lessee's construction or operation in the City or in the public ways of the City or upon City property without proper City authorization; B. Lessee's construction or operation at an unauthorized location; C. Unauthorized substantial transfer of control of the Lessee; D. Unauthorized assignment of Lease; LEASE AGREEMENT - 15 U S WEST WIRELESS - Olympua Drive E. Unauthorized sale, assignment or transfer of Lessee's Lease, assets, or a substantial interest therein; F. Misrepresentation by or on behalf of the Lessee in any application or written statement upon which the City relies in making the decision to grant, review or amend said Lease; City property; Abandonment of telecommunications facilities in the public ways or upon Failure to relocate or remove facilities as required in this Lease; I. Failure to pay taxes, compensation, fees or costs when and as due the City; J. Insolvency or bankruptcy of the Lessee; K. Failure to construct or operate in accordance with approved permits; and L. Violation of any material provision or term of this lease. 37. NOTICE AND DUTY TO CURE. In the event that the City believes that grounds exist for revocation of this Lease, the Lessee shall be given written notice of the apparent violation, default, or noncompliance, providing a short and concise statement of the nature and general facts of the violation or noncompliance, and providing the Lessee a reasonable period of time not exceeding 30 days to furnish evidence: A. That corrective action has been, or is being actively and expeditiously pursued, to remedy the violation, default or noncompliance; B. That rebuts the alleged violation, default or noncompliance; or C. That it would be in the public interest to impose some penalty or sanction less than revocation. 38. HEARING. In the event that the Lessee fails to provide evidence reasonably satisfactory to the City as provided in Section 37 hereof, the City shall refer the apparent violation, default or non-compliance to the City Council. The City Council shall provide the Lessee with notice and a reasonable opportunity to be heard concerning the matter. 39. STANDARDS FOR REVOCATION OR LESSER SANCTIONS. tithe City Council determines that a Lessee willfully violated or failed to comply with any of the provisions of this Lease or through willful misconduct or gross negligence failed to heed or comply with any notice given the Lessee by the City under the provisions of this Lease, then the Lessee shall, at the LEASE AOltFah~IENT - 16 U S WEST WIRELF~S. Olympus Drive election of the City Council and upon thirty (30) days prior written notice by City, forfeit all rights conferred hereunder and the Lease may be revoked or annulled by the City Council. The City Council may elect, in lieu of the above and without any prejudice to any of its other legal fights and remedies, to pursue other remedies, including obtaining an order from the Superior Court having jurisdiction compelling the Lessee to comply with the provisions of this Lease, and to recover damages and costs incurred by the City by reason of the Lessee's failure to comply. The City Council shall utilize the following factors in analyzing the nature, circumstances, extent, and gravity of the violation and in making it's determination under this Section: A. Whether the misconduct was egregious; B. Whether substantial harm resulted; C. Whether the violation was intentional; requirements; whether there is a history of prior violations of the same or other E. whether there is a history of overall compliance; and F. Whether the violation was voluntarily disclosed, admitted or cured. 40. NOTICE OF ENTRY ON PRIVATE PROPERTY. If directed by the City, at least 24 hours prior to entering private property or streets or public easements adjacent to or on such private property to perform permitted new construction or reconstruction, a notice indicating the nature and location of the work to be performed shall be physically posted, at no expense to the City, upon the affected property by the Lessee. A door hanger may be used to comply with the notice and posting requirements of this Section. The Lessee shall make a good faith effort to comply with the property owner/resident's preferences, if any, on location or placement of underground installations (excluding aerial cable lines utilizing existing poles and existing cable paths), consistent with sound engineering practices. Provided, however, that nothing in this Lease shall permit the Lessee to unlawfully enter or construct improvements upon the property or premises of another. 41. SAFETY REQUIREMENTS. The Lessee, in accordance with applicable federal, state, and local safety requirements shall, at all times, employ ordinary care and shall install and maintain and use commonly accepted methods and devices for preventing failures and accidents which are likely to cause damage, injury, or nuisance to the public and/or workers. All structures and all lines, equipment and connections in, over, under, and upon the streets, sidewalks, alleys, and public ways or places of a Lease area, wherever situated or located, shall at all times be kept and maintained in a safe, suitable condition, and in good order and repair. The City reserves the general right to see that the telecommunications facility of the Lessee is constructed and maintained in a safe condition. If a violation of the National Electrical Safety .Rt~SE AGREEMENT - 17 WEST WIRELESS - Olympus Drive Code or other applicable regulation is found to exist by the City, the City will, after discussions with the Lessee, establish a reasonable time for the Lessee to make necessary repairs. If the repairs are not made within the established time frame, the City may make the repairs itself or have them made and collect all reasonable costs thereof from the Lessee. 42. LIENS. Lessee shall not permit any lien to be imposed upon the property of the City as a result of work done by or on behalf of user and shall indemnify and hold the City harmless against any and all expenses, including reasonable attorney's fees and court costs in connection with any such lien. 43. MISCELLANEOUS. A. This agreement shall be governed by the laws of the State of Washington. B. Any claim, controversy or dispute arising out of this Lease shall be settled by arbitration in accordance with the applicable rules of the American Arbitration Association, and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The arbitration shall be conducted in the county where the property is located. There shall be no discovery other than the exchange of information which is provided to the arbitrator by the parties. The arbitrator shall have the authority only to award compensatory damages and shall not have authority to award punitive damages or other noncompensatory damages, the parties hereby waive all rights to and claims for monetary awards other than compensatory damages. C. Each party agrees to furnish the other, within ten (10) days after request, such truthful estoppel information as the other may reasonably request. D. This Lease constitutes the entire agreement and understanding of the parties, and supersedes all offers, negotiations and other agreements. There are no representations or understandings of any kind not set forth herein. Any amendments to said Lease must be in writing'and executed by both parties. E. If either party is represented by a real estate broker in this transaction, that party shall be fully responsible for any fee due such broker. F. If any term of this Lease is found to be void or invalid, such invalidity shall not affect the remaining terms of this Lease, which shall continue in full force and effect. G. Any notice or demand required to be given herein shall be made by certified or registered mail, return receipt requested, to the address of the respective parties set forth below: LEASE AGREEMENT - 18 U $ WEST WIRELESS - Olympus Drive LESSOR: City of Bremerton Administrative Services Director 239 Fourth Street Bremerton, WA 98337 LESSEE: U S WEST Wh'eless, LLC c/o U S WEST Communications Group Real Estate Services 8200 E Belleview, Suite 500 Englewood, CO 80112 Attn: PSL Manager/Wkeless COPY TO: U S WEST Wireless, LLC 450 110th Avenue NE, Room 209 Bellevue, WA 98004 Attn: Regional Real Estate Manager 44. NONDISCRIMINATION. Lessee shall not discriminate in employment or services to the public on the basis of race, color, national origin, sex, religion, age, marital stares or disability, except employment actions based on a bona fide occupational qualification. U S WEST WIRELESS, LLC Date: Date: CITY OF BREMERTON Date: LYNN S. HORTON, Mayor DEPARTMENTAL APPROVAL: W. EUGENE SAMPLEY, Director of Public Works & Utilities // // .RASE AGRg:RMENT - 19 U S WF.~T WIKELESS - Olympm D~v~ APPROVED AS TO FORM: GLENNA MALANCA, Interim City Attorney State of Washington County of Kitsap SS. On this __ day of ., 19 ., personally appeared Lynn S. Horton to me known to be the Mayor of the City ofBremerton, a municipal corporation, that executed the within and foregoing instrument, and acknowledged said instrument to be the fi'ee and voluntary act and deed of said municipal corporation, for the uses and purposes therein mentioned, and on oath stated that she was authorized to execute said instrument. In witness whereof I have hereunto set my hand and affixed my official seal the day and year first above written. RECEIVED FOR FILING: Notary Public in and for the State of Washington Residing at My commission expires: KATHLEEN L. McCLUSKEY, City Clerk LEASE AGREEMENT - 20 U $ WEST WIRELF_~S - Oiympos Drive EXHIBIT B ~ ADCOMM ENGINEERING COMPANY Communications Consulting Engineers November 3, 1997 To: Dean Heistand From: Joe Blaschka Jr, P.E. Subject: 30th and Olympus site antenna support needs. In response to your questions about the possible future needs for antennas at the 30th and Olympus site as they relate to the possible construction of a new 140' tower at 30th and Olympus by US West Wireless, I have put together these recommendations. The assumptions i used are: 1. US West Wireless will install a platform at the 140-foot level for their antennas. 2. Additional space on the tower will be provided for one additional carder, the existing CENCOM antennas, and possible future CENCOM antennas. The antennas on the existing towers are: - One PD220 type VHF receive antenna at the top. - One PD440 type VHF transmit antenna located at 90 feet on the SW leg - One PD220 type VHF transmit antenna located at 60 feet on the NW leg. - One PD440 type VHF transmit antenna located at 30 feet on the SW reg. My recommendations on the antennas and locations are as follows: At 140 feet - US West Wireless platform -. Two CENCOM VHF receive whip type antennas (PD220 or equal) approx .20' long two locations. (One replaces the existing antenna on existing tower and the other is new.) Two CENCOM UHF receive whip type antenna (PD201 or equal) approx. 8' long. (New) At 125 feet Co-location Platforr~ At 115 feet - One CENCOM 6-foot high-performance MW dish antenna pointing south or southwest. (New) 14~31 12~1t ,N~erlue NE W~e¢ll~l~. WA ~¢3'r2.4~51 voice: 42~,.~21 -~7 Fax; 425-48a-39~2 ~ a~emm~ac~nSl I c~n Joe B/~,ch/~a, Jr., P.E. 14631 12~!1 AH NE - Six CENCOM VHFIUHF tmrmmlt antenrm~ rrmunted .ort.6-feet Nde-arm type mounts, one side-are located on each leg with two PD220 or equal typ· ~nas mounted on each sMe-arm mount, one upright and one inverted. (Replaces two At 30 feet - S/x CENCOM VHF/UHF back-up antennas (Scala HDB155 and HDB450 or equal), one each mounted on each leg. (Replaces one existing antenna on the existing tower and provides for f'rve new antennas.) The antenna configuration listed above should provide adequate capacity for CENCOM's expansion requirements and provide for some co-location by another wireless service provider. If you have any questions, please give me a call. 2 CITY Of BREMERTON * ESTIMATE TO MOVE EXISTING USERS TO NEW 140' TOWER Based on four (4) antenu~ for Cencom and t~o (2) antennas for AT&T Messaging. Assumes that existing h¢li~x and connectors can be mused and that antennas retain existing height position on tower. Labor Mi$ccllan~ous M~rials $7,500.00 250.00 If h¢liax and connectors need to be replaced, add: Materials (based on 540 feet of 7/8" heliax) $4,500.00 U S West to contract for and pay actual to the new tower. cost of movingexistingusers FEB 10 'gB 14:19 FR UchJ W[RELESS/SER 206 451 6310 TO 913604?85200 P.01×08 Creative Solutions ... Superior Service PACIFIC (42~) $27.-0220 Company: Address: City/State: From: Allen Po~er PhoneNo.: FaxNo.: 425- 451-6012 (Office) 206-972-4971 (Mobile) (425) 451-6310 Date: Project Number: Project Name: Regarding: CC-' # of pages: January 19, 1998 Engineering * Landscape Architecture, Environmental Services Planning * Surveying and Mapping Washington · Oregon · Idaho U $ WE,~T Oamrnunic~O~ 450 ~0~n Aver~ue i',lo~'~am P, obm ~g ~l~e. VVn.~ing~en ~10 TO P.02/0D F~brunr7 4, 1998 C~ty of Bremerton Ms. Kathleen McCluakey City of Bremerton 239 Fourth Street Bremerton, WA 9S310 Lease Application Proposal US WEST Wireless PCS ske/BRE 001 3027 Olympus Dr. Dear Ms. McCluskey: US WEST Wireless LLC, hereby submits this formal request to lease City owned property located at 3027 Olympus Dr. for the construction of a PCS facility and to provide for collocation of City telecommunications needs as well as collocation for other wireless providers. This request is made in accordance with Section 4 of the Telecommunications Facilities Option and Lease Agreemem proposed between the City of Bremerton and US WEST Wireless. If you need additional information or have any questions, please contact me at (425) 451-6181 or Allen Potter at (425) 451-6012. On behalf of US W'EST Wireless, I would like to thank you and the City of Bremerton for its cooperation and a~sistance in completing this transaction. Sincerely, US WEST Wireless file LEASE APPLICATION PROPOSAL SUBMITTED TO: THE CITY OF BREMERTON BY: US WEST WIRELESS SITE NAME: BIkE 00lA LOCATION: 3027 OLYMPUS DRIVE FED ~0 '9~ ~4:ZD F~ LIn'.l ~ELE~$/$E~ ~OG 4D1 ~ZO TO D~04?~D200 P.04×08 ^. APPLICANT IDENTITY: US WEST Wireless, LLC 450 I l0th Ave. NE Rm 209 Bellevue, WA 98004 Contact: Ralph Long, Reg. Real Estate Manager Phone: (425)-451-6181 B. APPLICATION PREPARER: W & H Pacific, Inc. 450 110~ Ave. NE Rm 209 Bellevue, WA 98004 Contact: Allen Potter Phone: (425)-451-6012 C. DESCRIPTION OF SERVICE: USWEST Wireless is in the process of developing a new cellular telephone system called Personal Communication Serdces, or PCS. PCS is a unique combination of telecommunication services that will provide the public with the next generation of wireless devices, such as: compact cellular telephones with paging and voice-mail service, wireless fax machines and fax modems, and an array of other customized mobile equipment. When fully developed, PCS will allow for an all-in-one telecommunications device combining multiple services in a single wireless telephone. PCS uses new digital technology to produce a higher quality transfer of voices and data versus the older analog/digital systems that are currently being used by many wireless telephone service providers. This digital technology also accommodates the transfer of data and graphics. In addition, PCS operates at a higher frequency, around 1,900 megahertz, and broader frequency band than conventional cellular. This allows for more simukaneous callers. In order to provide these services, USWEST is developing a PCS network in Bremerton. PCS works by splitting a region into smaller geographic areas called ceils, each ceil is served by a transmitter and receiver or base station. As a caller moves across the landscape, the call is passed or "handed-off' from one base station to another. Each base station is connected to a mobile telephone switching office, which is linked to the land based phone network serving your home or office. Individual base station site locations, such as the proposed site, are selected based on a number of considerations related to topography, distance from other base stations, proximity to traffic corridors, and other technical features. USWEST engineers utilize computer modeling and radio testing to determine potential sites. Because PCS base stations consist of very low powered transmitters, which cover a relatively small '98 14:20 FR Llehl DIRELESS/SEA 206 451 6310 TO ~t3604785200 P.05/08 geographic area, there is limited flexibility in site selection. USWEST tries to locate its sites where the impact to local residents is minimal. This proposed PCS base station facility located on Olympus Drive is designed to provide PCS service to portions of the City of Bremerton, including Perry Ave. and Rt. 303 to Rudy Pt., and the surrounding residential and commercial neighborhoods. When developed, this facility will connect to other neighboring facilities in the network allowing for uninterrupted PCS service in this region of the City of Bremerton. USWEST is committed to providing quality PCS service to this area and the Bremerton/Searde Metropolitan area for years to come. D. DESCRIPTON OF FACILITY: The proposed transmitter/antenna consists of a 140-foot lattice tower and associated wireless communication transmitting and receiving equipment. The facility will be replacing an existing tower. USWEST antennas will be mounted at the I40 foot elevation. In addition to the US WEST antennas, additional antennas proposed by the City of Bremerton will also be located on the tower. The US WEST equipment will consist of nine steel gray panel antennas approximately four feet long and six inches wide and two equipment cabinets containing the electronic equipment necessary to transmit the USWEST signal. These cabinets are five feet, six inches tall. The cabinets will be mounted to a concrete pad measuring approximately six feet six inches by 4 feet. Each antenna will be mounted vertically onto cross pieces at the top of the tower. The US WEST facility will be located within a 40 ft. by 40 ft. leased area. The lease area will be surrounded by a six foot tall chain link fence with a locking gate to secure the facility. The leased area is located on a portion of an approximate 12 acre tax lot on Olympus Drive. The proposal calls for an manned facility and following construction there will be only quarterly visits by a service technician during business hours (except in the event of an emergency) to ensure that equipment is functioning properly. Access to the site will be provided from an existing driveway off Olympus Drive. The surrounding area is zoned residential. E. DESCRIPTION OF CITY PROPERTY: The property currently consists of an existing 100 ft. tower in addition to the water district administration building. F. OWNERS DRAWINGS (see attached site plans, sheet # T-I, A-I, A-2) FES ~0 '98 14:28 FR U¢~,~ ~RELE$S/SE9 206 451 6~0 TO ~604785200 P,0~/08 G. CONCEPTUAL DP,,A~GS/DIAGRAMS (see attached site plans, sheet A-2) II. CABLE FRANCHISING The Applicant does not indent to provide cable service, video dial tone service or other video programming service. I. MAP OF EXISITNG TELECOMMUNICATIONS FACILITES Two sites are identified in the City: (see attached maps) 1 .) 3027 Olympus Dr./collocation with City of Bremerton and others 2.) 4811 Union Ave./collocation on the Washington State Patrol Tower J. DESCRIPTON OF SERVICES/FACILITIES MADE AVAILABLE TO CITY US WEST Wireless proposes to allow for collocation on the proposed new tower City communications equipment and any other user that may apply to the City for collocation subject to technical and structural review and approval. K. COLLOCATION ON EXISTING SITES US WEST Wireless explored collocation at a nearby site at 3416 Olympus Ave., owned by North Perry Water District. Also, US WEST considered a rooftop installation at the Kona Village Apeutments at 1717 Sheridan Road. The RF engineering Dept. selected the current proposed at 3027 Olympus Dr. as the preferred site. NW W SW Click Below' Zoom N~ ~1~ national ~ll~ regional I~ clly I E J slr'e~ Usc Subject to License ~ Copyright. S 3027 olympus dr Bremerton WA SE On Click: (~) Center 0 Zoom In 0 Zoom O~ Copyright © 1997 ~?.S.yst.c. ms Global Corp~ iD F m NW W SW N Click Below 1 Zoom ~ Iq/~ nalional W ~xanc~ St '~x''x~ .... / ~__ ~ city ,/% street / / On Click: (~)Ccntcr 0 Zoom In 0 Zoom Ou ..~ .1{~97 Go,o, S~to,,n~ Gbbal Gotp,I O 1997 NavTeoh Use Subject to License / Copyright S 4811 Union Ave Bremedon Wa SE Copyright © 1997 GeoSystems Global Corp: 'TI m t~. -fl m m \ m TELECOMMUNICATIONS FACILITIES OPTION AND LEASE AGREEMENT TltlS LEASE AGREEMENT entered into by and between the City ofBremenon, a municipal corporation duly organized and existing under the laws of the State of Washington, as Lessor (hereinafter referred to as "City") and U S WEST COMMUNICATIONS WIRELESS GROUP, a division ofU S WEST Communications, Inc. (hereinafter referred to as "Lessee"). WITNE S SETH: 1. PREMISES. Upon exercise of the option granted to Lessee in Section 6 of this Lease, the City hereby leases to the Lessee real property located at Anderson Creek for housing, installing, constructing, operating and maintaining certain telecommunications facilities, said real property and facilities being more specifically described and/or depicted in Schedule A, attached hereto and specifically incorporated herein (hereinafter referred to as Premises). Upon exercise of its option, Lessee agrees to accept such real property for such purpose, subject to the considerations, terms and conditions specified in this Telecommunications Facilities Lease Agreement (hereinafter referred to as "Lease"). 2. DEFINITIONS. For the purpose of this Lease, and the interpretation and enforcement thereof, the following words and phrases shall have the following meanings, unless the context of the sentence in which they are used shall indicate otherwise: "Person" means and includes corporations, companies, associations, joint stock companies or associations, firms, partnerships, limited liability companies and individuals and includes their lessors, trustees and receivers; "Public street" means any highway, street, alley or other public right of way for motor vehicle travel under the jurisdiction and control of the City which has been acquired, established, dedicated or devoted to highway purposes; "Public way" means and includes all public streets and utility easements, as those terms are defined herein, now or hereafter owned by the City, but only to the extent of the City's right, title, interest or authority to grant a permit or lease to occupy and use such streets and easements for telecommunications facilities; "Telecommunications carrier" means and includes every person that directly or indirectly owns, controls, operates or manages plant, equipment or property within the City, used or to be used for the purpose of offering telecommunications service; "Telecommunications facilities" means the plant, equipment and property, including but not limited to, cables, wires, conduits, ducts, pedestals, antennae, towers, electronics, equipment LEASE AGREEMENT - 1 U ,q WEST W1RELF.3S - And~-rson Creek storage structures and other appurtenances used or to be used to transmit, receive, distribute, provide, house or offer telecommunications services; "Telecommunications provider" means and includes every person who provides telecommunications services over telecommunications facilities without any ownership or management control of the facilities; "Telecommunications service" means the providing or offering for rent, sale or lease, or in exchange for other value received, of the transmittal of voice, data, image, graphic and video programming information between or among points by wire, cable, fiber optics, laser, microwave, radio, satellite or similar facilities, with or without benefit of any closed transmission medium. "Utility easement" means any easement owned by the City and acquired, established, dedicated or devoted for public utility purposes not inconsistent with telecommunications facilities. 3. USES AND PURPOSES. Lessee shall have the use and occupancy of the Premises for the purpose of transmission and reception of telecommunication and signals in any and all frequencies using real property and telecommunications facilities approved in Schedule A. Lessee shall have the right, at its expense, to erect and maintain on the Premises improvements, personal property and facilities, as described in Schedule A and pursuant to successful completion of all requisite permit processes. City shall provide Lessee ingress, egress, and twenty-four hour a day, seven days a week access over the property to the Premises adequate to service the Premises and the telecommunication facilities at all times during this Lease at no additional charge to Lessee except Lessee shall agree to sign a mutual road maintenance agreement to be provided by City with all other users of access roads not included in the public road system and Lessee shall agree to share equally the annual charge of maintaining the access roads not to exceed Three Hundred and No/100 Dollars ($300.00). 4. LEASE APPLICATION. Any person that desires to solicit the City's approval of a Lease shall file a lease proposal with the City which shall include the following: A. The identity and legal status of the applicant, including any affiliates; B. The name, address, telephone number and title of the officer, agent or employee responsible for the accuracy of the lease application statement; C. A description of the service that the applicant intends to offer or provide, or is currently offering or providing, to persons, firms, businesses or institutions within the City, or to those outside the City limits using facilities located within the City; LEASE AGREEMENT - 2 U S WEST WIRELESS - Andev~n Creek D. A description of the telecommunications facilities or other equipment proposed to be located upon City property; E. A description of the City property upon which the applicant proposes to locate telecommunications facilities or other equipment; F. Signed set of owners drawings, preliminary plans and specifications in sufficient detail to identify: O) Manufacturer standards, punch list on workmanship inspections for future sign-off by City inspectors for all telecommunication facilities being proposed by Lessee. (2) The location(s) of existing telecommunications facilities or other equipment upon the City property, whether publicly or privately owned. (3) The location and source of electric and other utilities required for the installation and operation of the proposed facilities. G. Accurate scale conceptual drawings and diagrams of sufficient specificity to analyze the aesthetic impacts of the proposed telecommunications facilities or other equipment; lt. Whether the applicant intends to provide cable service, video dialtone service or other video programming service, and sufficient information to determine whether such service is subject to cable franchising; L An accurate map showing the location of any existing telecommunications facilities in the City that applicant intends to use or lease; J. A description of the services or facilities that the applicant will offer or make available to the City and other public, educational and governmental institutions; K. Evidence that the applicant has explored possible co-location sites on existing tower sites on City or private property. L. Such other and further information as may be requested by the City; and A non-refundable application fee of Five Hundred and No/100 Dollars ($500.00). LEASE AGREEMENT - 3 U S WEST WIRELESS - Anderson Crock 5. NON-EXCLUSIVE LEASE. This Lease is nonexelusive and does not preclude the City from granting a similar lease, right, license, franchise, etc. to other carders, providers or other persons for telecommunications or any other purpose. 6. OPTION. The City, for and in consideration of One Thousand and No/100 Dollars ($1,000.00), this Lease and mutual considerations, the receipt of which is hereby acknowledged, does hereby grant and convey unto Lessee, its successors, assigns, and agents an option to lease the Premises as set forth in this Lease. This option to lease City's property may be exercised by Lessee at any time within the first twelve (12) months of the date of this Agreement (option period) by providing City with written notice of Lessee's intent. During the option period Lessee, its agents, engineers, or contractors shall have the right to enter upon City's property to inspect, examine, sample and conduct all engineering tests or studies of the Premises, to apply for and obtain all licenses and permits required for the Lessee's use of the Premises from all applicable governmental or regulatory entities, and otherwise do those things on the Premises that, in the opinion of Lessee, are necessary to determine the physical condition of the Premises. City's title to the Premises, and the feasibility or suitability of the Premises for Lessee's use, all at Lessee's expense. Lessee shall not be liable to City or any third party on account of any pre- existing defect or condition on or with respect to the Premises, whether or not such defect or condition is disclosed by Lessee's inspection, although Lessee shall be responsible for any damage, loss or destruction to the Premises as a result of the actions of its employees, representatives or agents during the due diligence activities. 7. TERM OF LEASE. This Lease shall be valid for a term often (10) year(s) commencing upon exercise of option described in Section 6. 8. RIGHTS GRANTED. This Lease does not convey any right, title or interest in the City property, but shall be deemed a license only to use and occupy the City property for the limited purposes and term stated in the Lease. Further, this Lease shall not be construed as any warranty of title. 9. INTERFERENCE WlTlt OTHER USERS. The Lessee acknowledges that the City may enter into leases with other tenants for their equipment and telecommunications facilities for the purposes of transmitting and receiving telecommunication signals from City property. The City, however, is not in any way responsible or liable for any interference with Lessee's use of the City property which may be caused by the use and operation of any other tenant's equipment, even if caused by new technology. In the event that any other tenant's activities interfere with the Lessee's use of the City property, and such use or operation was not in existence on the date of execution of this lease, and the Lessee cannot resolve this interference with the other tenants, the City will, upon written request by Lessee cause such interfering use to cease. The Lessee shall cooperate with all other tenants to identify the causes of and work towards the resolution of any electronic interference problem. In addition, the Lessee agrees to eliminate any radio or television interference caused to City-owned facilities or surrounding residences at Lessee's own expense and without installation of extra filters on City-owned equipment. Lessee further agrees to accept LEASE AGREEMENT - 4 U S WEST WIRELESS - Anderson Creek such interference as may be received from City operated telecommunications or other facilities located upon the City property subject to this Lease except those City antenna sites placed upon Lessee's facilities pursuant to Section 12.B. 10. OWNERSltlP AND REMOVAL OF IMPROVEMENTS. All buildings, landscaping and all other improvements, except telecommunications equipment, shall become the property &the City upon expiration or termination of the Lease. In the event that the City requires removal of such improvements after termination of the Lease, such removal shall be accomplished at the sole expense of the Lessee and completed within 30 days after receiving notice from the City requiring removal of the improvements. Additional time may be granted upon the discretion of the City which approval shall not be unreasonably withheld. In the event that telecommunications facilities or other equipment are left upon City property after expiration or termination of the lease, they shall, at the City's option, become the property of the City if not removed by the Lessee upon 30 days written notice from the City. If Lessee fails to remove the property upon request by the City, Lessee agrees to reimburse the City for any and all removal costs incurred by the City. 11. CANCELLATION OF LEASE BY LESSEE. A. All Leases are contingent upon the Lessee obtaining all necessary permits, approvals and licenses for the proposed facilities. In the event that the Lessee is unable to obtain all such permits, approvals and licenses, it may cancel its lease, and obtain a pro rata refund in any rents paid, without further obligation by giving 30 days prior written notice to the City. Lessee agrees to restore City property to original condition if cancellation is requested. B. In the event that the holder of a Lease determines that the City property is unsuitable for its intended purpose, the Lessee shall have the right to cancel the Lease upon 120 days written notice to the City. However, no prepaid rent shall be refundable. 12. COMPENSATION TO TIlE CITY. A. Starting on the first of the next month after Lessee has received City approval for zoning, the rent commencement date, and on the first day of each month thereafter during the term of the Lease, Lessee shall pay rent at a rate of Four Hundred Sixteen and 67/100 Dollars ($416.67) per month, prorated for any partial months. On each anniversary of the rent commencement date, the annual rent due shall be increased by four percent (4%) over the annual rent due for the preceding year. Lessee agrees to pay the state leasehold tax, which is directly attributable to this Lease. Any payments received after the due date shall include a late payment penalty of 2% of the annual rental fee for each day or part thereof past the due date. The rental fee rate will be reviewed annually. LEASE AGREEMENT - 5 U S WEST WIRELESS - And~son Creek B. Additional Consideration. City shall be allowed, at City's sole expense, to attach City's communication antennas, that are in addition to initial attachments described in Exhibit B, to Lessee's telecommunications tower provided City first obtains Lessee's prior written consent for such attachments. Lessee's approval for said attachments shall be contingent upon determining whether Lessee's tower is properly engineered to accommodate City's antenna system and such transmission shall not result in any impairment or diminution in the quality of Lessee's service. Further, said approval shall be given only after Lessee has reviewed and approved City's engineering plans for said antenna attachments in a location specified by Lessee. Approval shall not be unreasonably withheld. Upon written approval by Lessee, said attachments shall be installed by qualified licensed contractors and in accordance with Lessee's directives for the method of installment and with permits issued by all applicable governmental authorities having jurisdiction which shall first be obtained by City at its sole expense. City acknowledges and agrees that Lessee reserves the right to relocate City's antennas at any time(s) to accommodate modifications required for Lessee's future system requirements, provided such relocation shall provide equivalent quality of service after such relocation. Initial attachments to the new tower shall be at the expense ofU S WEST as described in Exhibit B. 13. RENEWAL APPLICATION. A Lessee that desires to renew its Lease under this Article shall, not more than one hundred twenty (120) days nor less than sixty (60) days before expiration of the current Lease, file an application with the City for renewal of its Lease which shall include the following: A. The information required pursuant to Section 4; B. Any additional information required based upon elements of the current Lease agreement between the City and the Lessee; C. All deposits or charges required pursuant to City ordinances; D. A non-refundable application fee in the amount of Five Hundred and No/100 Dollars ($500.00). The City reserves the right to extend the review period for the renewal application if additional information is required. 14. OBLIGATION TO CURE AS A CoNDmON OF RENEWAL. No Lease shall be renewed until any ongoing violations or defaults in the Lessee's performance of the Lease have been cured, or a plan detailing the corrective action to be taken by the Lessee has been approved by the City. 15. IMPROVEMENTS. During the term of this Lease if Lessee wishes to expand the initial configuration contained in Schedule A, Lessee will submit a new application pursuant to LEASE AGREEMENT - 6 U S WEST WIRELESS - Anderson Creek Section 4. Compensation for the proposed expansion will be negotiated upon approval of the application. 16. POLICE POWER. In accepting this Lease, the Lessee acknowledges that its rights hereunder are subject to the legitimate rights of the police power of the City to adopt and enforce general ordinances necessary to protect the safety and welfare of the public and it agrees to comply with all applicable general laws enacted by the City pursuant to such power. 17. INTERFERENCE WITlt TIlE PUBLIC WAYS. The Lessee shall not locate or maintain its telecommunications facilities so as to unreasonably interfere with the use of the public ways by the City, by the general public or by other persons authorized to use or be present in or upon the public ways. All such facilities which interfere with public ways shall be moved by the Lessee, at the Lessee's cost, temporarily or permanently, as determined by the City Public Works and Utilities Director. 18. REPAIR AND EMERGENCY WORK. In the event of an unexpected repair or emergency, the Lessee may commence such repair and emergency response work as required under the circumstances, provided the Lessee shall notify the City as promptly as reasonably possible, before such repair or emergency work commences or as soon therea~er as possible if advance notice is not practicable. 19. MAINTENANCE OF LEASE FACILITIES. The Lessee shall maintain its facilities in good and safe condition and in a manner that complies with all applicable federal, state and local requirements. Lessee shall not permit waste, damage, or injury to the premises including any City property, public ways of the City, other ways or other property, whether publicly or privately owned, located in, on or adjacent thereto. Lessee shall not restrict site access to City. City shall have the exclusive right to inspect the Lessee's telecommunications facilities and equipment at any time during the term of this Lease to ensure compliance with the terms and conditions herein; Provided, however, Lessee has the right to be present at all inspections of Lessee's telecommunications facilities and equipment, and City shall give Lessee at least 24 hours prior notice of such intent. 20. SIGNAGE. Lessee shall display a current sign on telecommunication facilities identifying Lessee, address and a 24 hour phone number. 21. RELOCATION OR REMOVAL OF FACILITIES. Within thirty (30) days following written notice from the City, the Lessee shall, at its own expense, temporarily or permanently remove, relocate, change or alter the position of any telecommunications facilities within the public ways or upon City property whenever the City Public Works & Utilities Director shall have determined that such removal, relocation, change or alteration is reasonable necessary for: LEASE AGREEMENT - 7 U S WEST WIRELESS - Anderson Cr~k A. The construction, repair, maintenance or installation of any City or other public improvement in or upon the public ways; and public ways. The operations of the City or other governmental entity in or upon the Additional time for removal or relocation may be granted at the discretion of the City which extension shall not be unreasonably withheld. If Lessee fails to remove the property upon request by the City, Lessee agrees to reimburse the City for any and all removal costs incurred by the City. 22. REMOVAL OF UNAUTHORIZED FACILITIES. Within thirty (30) days following written notice from the City, Lessee or any person who owns, controls or maintains on behalf of Lessee any unauthorized telecommunications system, facility or related appurtenances within the public ways or real property of the City may, remove such facilities or appurtenances from the public ways or property of the City. A telecommunications system or facility is unauthorized and subject to removal in the following circumstances: A. Upon expiration or termination of the Lessee's Lease without approved extension or renewal; B. Upon abandonment of a facility within the public ways or real property of the City. Any property of a Lessee shall be deemed abandoned if left in place 30 days after expiration or termination of the Lease; If the system or facility was constructed or installed without the prior grant of a Lease; D. If the system or facility was constructed or installed without the prior issuance of a required City permits; and E. If the system or facility was constructed or installed at a location not permitted by the Lease. Provided, however, that the City may, in its sole discretion, allow a Lessee, or other such persons who may own, control, or maintain telecommunications facilities within the public ways or property of the City to abandon such facilities in place. No facilities of any type may be abandoned in place without the express written consent of the City. Any plan for abandonment or removal of a Lessee's facilities must be first approved by the Public Works and Utilities Director, and all necessary permits must be obtained prior to such work. Upon authorized permanent abandonment of the property of such persons in place, the property shall become that of the City, and such persons shall submit to the City an instrument in writing, to be approved by the City Attorney, transferring to the City the ownership of such property in which event, Lessee shall LEASE AGREEMENT - 8 U S WEST ~LESS. Anderson Crock have no further obligations or liability with respect to such facilities. The provisions of this Section shall survive the expiration, revocation, or termination of the Lease granted hereunder. If the City does not authorize abandonment and Lessee falls to remove such facilities within thirty (30) days following notice, Lessee agrees to reimburse the City for any and all costs incurred by the City for facilities removal. 23. EMERGENCY REMOVAL OR RELOCATION OF FACILITIES. The City retains the right and privilege to cut or move any telecommunications facilities located within the public ways of the City, as the City may determine to be necessary, appropriate or useful in response to any public health or safety emergency. The City shall not be liable to Lessee, or any other party for any direct, indirect, or any other such damages suffered by any person or entity of any type as a direct or indirect result of the City's actions under this Section. 24. DAMAGE TO FACI]_~IT[ES. Unless directly and proximately caused by the willful, intentional or malicious acts by the City not otherwise authorized herein, the City shall not be liable for any damage to or loss of any telecommunications facility upon City property or within the public ways of the City as a result of or in connection with any public works, public improvements, construction, excavation, grading, filling, or work of any kind on such City property or within the public ways by or on behalf of the City. 25. RESTORATION OF PUBLIC WAYS, OTHER WAYS AND CITY PROPERTY. A. When the Lessee, or any person acting on its behalf, does any work in or affecting any public ways, other ways or City property, it shall, at its own expense, promptly remove any obstructions therefrom and restore such ways or property to City construction standards as adopted before the work was undertaken, unless otherwise directed by the City. Lessee shall obtain all requisite permits for such work. B. If weather or other conditions do not permit the complete restoration required by this Section, the Lessee shall temporarily restore the affected ways or property. Such temporary restoration shall be at the Lessee's sole expense and the Lessee shall promptly undertake and complete the required permanent restoration when the weather or other conditions no longer prevent such permanent restoration. C. The Lessee or other person acting in its behalf shall use suitable barricades, flags, flagmen, lights, flares and other measures as required for the safety of all members of the general public and to prevent injury or damage to any person, vehicle or property by reason of such work in or affecting such ways or property. D. The Public Works and Utilities Director shall be responsible for inspection and final approval of the condition of the public ways, other ways, and City property following LEASE AGREEMENT - 9 U S WEST WIRELESS - Androgen Creek any construction and restoration activities therein. Further, the provisions of this Section shall survive the expiration, revocation, or termination of this Lease. 26. FACIL~S MAPS. The Lessee shall provide the City with a map or maps accurately reflecting the horizontal and vertical location and configuration of all of its telecommunications facilities within the public ways and upon City property. The Lessee shall provide the City with updated maps upon request by the City. 27. BOOKS, RECORDS AND MAPS. All books, records, maps and other documents, maintained by the Lessee with respect to its telecommunications facilities within the public ways and upon City property shall be made available for inspection by the City at reasonable times and intervals; Provided, however, that nothing in this Section shall be construed to require the Lessee to violate state or federal law regarding subscriber privacy, nor shall this Section be construed to require the Lessee to disclose proprietary or confidential information without adequate safeguards for its confidential or proprietary nature. 28. LEASED CAPACITY AND CO-LOCATION. The City encourages co- location on existing telecommunications facilities and to that end will accept tower lease applications from new carriers who wish to locate on Lessee's tower. Lessee shall review and approve placement of new carrier's equipment which approval shall not be unreasonably withheld. The City will negotiate any future leases including rents with new carders who co-locate and retain 100% of lease revenue from any future co-location on Lessee's tower. 29. UTILITIlgS. Electricity, HVAC and telephone service, or other utilities are to be provided to the Premises and Site at Lessee's expense and as outlined in Schedule A. City shall cooperate with Lessee in obtaining utility service. Lessee will provide a propane fueled generator with sufficient capacity to service existing tower users and support additional carriers who co-locate. Lessee shall be reimbursed for this capital outlay on a prorata usage basis by future carders who benefit from the generator. 30. LICENSES AND TAXES. Upon commencement of the Lease, Lessee shall be responsible for paying real or personal property, excise leasehold, business and occupation, and/or other taxes or licenses which may in the future be assessed as a direct result of the Lessee's operations at the telecommunications facilities described herein. 31. INSURANCE. The Lessee shall, as a condition of the Lease, secure and maintain the following liability insurance policies insuring both the Lessee and the City, and its elected and appointed officers, officials, agents, employees, representatives, engineers, consultants, and volunteers as co-insureds against claims for injuries to persons or damages to property which may arise from or in connection with the exercise of the rights, privileges, and authority granted to the Lessee: LEASE AGREEMENT - 10 U S WEST WIRELESS - ~ Cr~k A. Comprehensive general liability insurance, written on an occurrence basis, with limits not less than: (1) $2,000,000.00 for bodily injury or death to each person; (2) $2,000,000.00 for property damage resulting from any one accident; and (3) $2,000,000.00 for all other types of liability. B. Automobile liability for owned, non-owned and hired vehicles with a limit of $2,000,000.00 for each person and $2,000,000.00 for each accident; C. Worker's compensation within statutory limits and employer's liability insurance with limits of not less than $1,000,000.00; D. Comprehensive form premises-operations, explosions and collapse hazard, underground hazard and products completed hazard with limits of not less than $2,000,000.00; E. The liability insurance policies required by this Section shall be maintained by the Lessee throughout the term of the Lease, and such other period of time during which the Lessee is operating without a Lease hereunder, or is engaged in the removal of its telecommunications facilities. The Lessee shall provide an insurance certificate, together with an endorsement naming the City, and its elected and appointed officers, officials, agents, employees, representatives, engineers, consultants, and volunteers as additional insureds, to the City prior to the commencement of any work or installation of any facilities pursuant to said Lease. Any deductibles or seW-insured retentions must be declared to and approved by the City. Payment of deductibles and self-insured retentions shall be the sole responsibility of the Lessee. The insurance certificate required by this Section shall contain a clause stating that coverage shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. The Lessee's insurance shall be primary insurance as respects the City, its officers, officials, employees, agents, consultants, and volunteers. Any insurance maintained by the City, its officers, officials, employees, consultants, agents, and volunteers shall be in excess of the Lessee's insurance and shall not contribute with it; F. In addition to the coverage requirements set forth in this Section, each such insurance policy shall contain the following endorsement: "It is hereby understood and agreed that this policy may not be canceled nor the intention not to renew be stated until thirty (30) days after receipt by the City, by registered mail, of a written notice addressed to the Administrative Services Director of such intent to cancel or not to renew." I.F. ASE AGREEMENT - 11 U S WEST WIRELESS - Andersc~ Creek G. Within 30 days after receipt by the City of said notice, and in no event later than 15 days prior to said cancellation or intent not to renew, the Lessee shall obtain and furnish to the City replacement insurance policies meeting the requirements of this Section. 32. GENERAL INDEMNIFICATION. The Lessee hereby releases, covenants not to bring suit and agrees to indemnify, defend and hold harmless the City, its elected and appointed officials, officers, employees, agents, representatives, engineers, and consultants from any and all claims, costs, judgments, awards, or liability to any person, including claims by the Lessee's own employees to which the Lessee might otherwise be immune under Title 51 RCW, arising from injury or death of any person or damage to property of which the negligent acts or omissions of the Lessee, its agents, servants, officers, or employees in performing under this Lease are the proximate cause. The Lessee further releases, covenants not to bring suit and agrees to indemnify, defend and hold harmless the City, its elected and appointed officials, officers, employees, agents, representatives, engineers, and consultants from any and all claims, costs, judgments, awards, or liability to any person including claims by the Lessee's own employees, including those claims to with the Lessee might otherwise have immunity under Title 51 RCW, arising against the City solely by virtue of the City's ownership or control of the fights-of-way or other public properties, by virtue of the Lessee's exercise of the rights granted herein, or by virtue of the City's permitting the Lessee's use of the City's rights-of-way or other public property, based upon the City's inspection or lack of inspection of work performed by the Lessee, its agents and servants, officers or employees in connection with work authorized on the City's property or property over which the City has control, pursuant to this Lease, or pursuant to any other permit or approval issued in connection with this lease. This provision waiving immunity for claims arising out of Title 51 RCW was specifically negotiated by the parties. This covenant of indemnification shall include, but not be limited by this reference, claims against the City arising as a result of the negligent acts or omissions of the Lessee, its agents, servants, officers, or employees in barricading, instituting trench safety systems or providing other adequate warnings of any excavation, construction, or work in any public right-of-way or other public property in performance of work or services permitted under this Lease. Inspection or acceptance by the City of any work performed by the Lessee at the time of completion of construction shall not be grounds for avoidance of any of these covenants of indemnification. Said indemnification obligations shall extend to claims which are not reduced to a suit and any claims which may be compromised prior to the culmination of any litigation or the institution of any litigation. In the event that the Lessee refuses the tender of defense in any suit or any claim, said tender having been made pursuant to the indemnification clauses contained herein, and said refusal is subsequently determined by a court having jurisdiction (or such other tribunal that the parties shall agree to decide the matter), to have been a wrongful refusal on the part of the Lessee, then the Lessee shall pay all of the City's costs for defense of the action, including all reasonable expert witness fees and reasonable attorneys' fees and the reasonable costs of the City, including reasonable attorneys' fees of recovering under this indemnification clause. LEASE AGREEMENT - 12 U S WEST WIRELESS - Anderson Creek In the event of liability for damages arising out of bodily injury to persons or damages to property caused by or resulting from the concurrent negligence of the Lessee, and the City, its officers, employees and agents, the Lessee's liability hereunder shall be only to the extent of the Lessee's negligence. It is further specifically and expressly understood that the indemnification provided herein constitutes the Lessee's waiver of immunity under Title 51 RCW, solely for the purposes of this indemnification. This waiver has been mutually negotiated by the parties. The provisions of this Section shall survive the expiration or termination of this Lease agreement. Notwithstanding any other provisions of this Section, the Lessee assumes the risk of damage to its facilities located in the City's public ways, rights-of-way, easements, and property fi.om activities conducted by the City, its officers, agents, employees, and contractors. The Lessee releases and waives any and all claims against the City, its officers, agents, employees, or contractors for damage to or destruction of the Lessee's facilities caused by or arising out of activities conducted by the City, its officers, agents, employees, and contractors, in the public ways, rights-of-way, easements, or property subject to this Lease, except to the extent any such damage or destruction is caused by or arises fi.om the sole negligence or any willful or malicious action on the part of the City, its officers, agents, employees, or contractors. The Lessee further agrees to indemnify, hold harmless and defend the City against any claims for damages, including, but not limited to, business interruption damages and lost profits, brought by or under users of the Lessee's facilities as the result of any interruption of service due to damage or destruction of the user's facilities caused by or arising out of activities conducted by the City, its officers, agents, employees, or contractors, except to the extent any such damage or destruction is caused by or arises fi.om the sole negligence or any willful or malicious actions on the part of the City, its officers, agents, employees, or contractors. 33. CONSTRUCTION AND COMPLETION BOND. A performance bond written by a corporate surety acceptable to the City equal to at least 100% of the estimated cost of constructing the Lessee's telecommunications facilities within the public ways of the City or upon City property shall be deposited before construction is commenced. A. Except as provided below, the construction bond shall remain in force until 60 days after substantial completion of the work, as determined by the City, including restoration of public ways and other property affected by the construction. B. The construction bond shall guarantee, to the satisfaction of the City: (1) Timely completion of construction; (2) Construction in compliance with applicable plans, permits, technical codes, and standards; LEASE AGREEMENT - 13 U S WEST WIRELESS - Anderson Cr~k (3) Proper location of the facilities as approved by the City; (4) Restoration of the public ways and other public or private property disrupted, damaged, or otherwise affected by the construction. The cohstruction bond shall warrant said restoration work for a period of 1 year; (s) The submission of'as-built' drawings after completion of the work as required by this Chapter; and (6) Timely payment and satisfaction of all claims, demands or liens for labor, material or services provided in connection with the work. 34. ASSIGNMENTS OR TRANSFERS OF LEASE. Ownership or control of a Lease may not, directly or indirectly, be transferred, assigned or disposed of by sale, lease, merger, consolidation or other act of the Lessee, by operation of law or otherwise, without the prior written consent of the City, which consent shall not be unreasonably withheld or delayed, except as expressed by ordinance and then only on such reasonable conditions as may be prescribed therein. A. No Lease shall be assigned or transferred in any manner within twelve (12) months after the initial grant of the Lease, unless otherwise provided. B. Absent extraordinary and unforeseeable circumstances, system or integral part of a system shall not be assigned or transferred before construction of the telecommunications facility has been completed. C. The Lessee and the proposed assignee or transferee of the system shall provide and certify the following information to the City not less than sixty (60) days prior to the proposed date of transfer: O) Complete information setting forth the nature, terms and condition of the proposed transfer or assignment; (2) All information required of a lease applicant pursuant to Section 4 with respect to the proposed transferee or assignee; (3) Any other information reasonably required by the City; and (4) An .application fee set by Section 4. LEASE AGENT - 14 U S WEST WIRELESS - ~ Cr~k D. No transfer shall be approved unless the assignee or transferee has the legal, technical, financial, and other requisite qualifications to own, hold and operate the telecommunications facility pursuant to this Lease. E. Unless otherwise provided in this Lease, the Lessee shall reimburse the City for all direct and indirect costs and expenses reasonably incurred by the City in considering a request to transfer or assign this Lease. No approval shall be deemed approved until all such costs and expenses have been paid. F. Any transfer or assignment of the lease, System, or integral part of a system without prior written approval of the City under this Section or pursuant to the Lease shall be void and is cause for revocation of the lease, except that Lessee may sublet and assign this Lease or portion thereof, and its other rights hereunder to any person or business entity which is a parent subsidiary or affiliate of Lessee without Lessor's consent. 35. TRANSACTIONS AFFECTING CONTROL OF LEASE. Any transactions which singularly or collectively result in a change of 50% or more of the ownership or working control of the Lessee, of the ownership or working control of the telecommunications facility, of the ownership or working control of affiliated entities having ownership or working control of the Lessee or of a telecommunications facility, or of control of the capacity or bandwidth of the Lessee's telecommunication system, facilities or substantial parts thereof, shall be considered an assignment or transfer requiring City approval pursuant to Section 34 hereof. Transactions between affiliated entities are not exempt from City approval. The Lessee shall promptly notify the City prior to any proposed change in, or transfer of, or acquisition by any other party of control ofLessee's company. Every change, transfer, or acquisition of control of a Lessee's company shall cause a review of the proposed transfer. In the event that the City adopts a resolution or other appropriate order denying its consent and such change, transfer or acquisition of control has been effected, the City may cancel the Lease. Approval shall not be required for mortgaging purposes or if said transfer is from the Lessee to another person or entity controlling, controlled by, or under common control with the Lessee. 36. REVOCATION OR TERMINATION OF LEASE. The Lease granted by the City to use or occupy public ways of the City or City property may be terminated for the following reasons: A. Lessee's construction or operation in the City or in the public ways of the City or upon City property without proper City authorization; B. Lessee's construction or operation at an unauthorized location; C. Unauthorized substantial transfer of control of the Lessee; D. Unauthorized assignment of Lease; LEASE AGREEMENT - 15 U S WEST WIRELESS - Andem)n Cr~k E. Unauthorized sale, assignment or transfer of Lessee's Lease, assets, or a substantial interest therein; F. Misrepresentation by or on behalf of the Lessee in any application or written statement upon which the City relies in making the decision to grant, review or amend said Lease; City property; G. Abandonment of telecommunications facilities in the public ways or upon gl'. Failure to relocate or remove facilities as required in this Lease; I. Failure to pay taxes, compensation, fees or costs when and as due the City; J. Insolvency or bankruptcy of the Lessee; K. Failure to construct or operate in accordance with approved permits; and L. Violation of any material provision or term of this lease. 37. NOTICE AND DUTY TO CURE. In the event that the City believes that grounds exist for revocation of this Lease, the Lessee shall be given written notice of the apparent violation, default, or noncompliance, providing a short and concise statement of the nature and general facts of the violation or noncompliance, and providing the Lessee a reasonable period of time not exceeding 30 days to furnish evidence: A. That corrective action has been, or is being actively and expeditiously pursued, to remedy the violation, default or noncompliance; B. That rebuts the alleged violation, default or noncompliance; or C. That it would be in the public interest to impose some penalty or sanction less than revocation. 38. HEARING. In the event that the Lessee fails to provide evidence reasonably satisfactory to the City as provided in Section 37 hereof, the City shall refer the apparent violation, default or non-compliance to the City Council. The City Council shall provide the Lessee with notice and a reasonable opportunity to be heard concerning the matter. 39. STANDARDS FOR REVOCATION OR I.ESSER SANCTIONS. If the City Counc'd determines that a Lessee willfully violated or failed to comply with any of the provisions of this Lease or through willful misconduct or gross negligence failed to heed or comply with any notice given the Lessee by the City under the provisions of this Lease, then the Lessee shall, at the LEASE AGREEMENT - 16 U S WF_~T WIRELESS - Andersen Creek election of the City Council and upon thirty (30) days prior written notice by City, forfeit all fights conferred hereunder and the Lease may be revoked or annulled by the City Council. The City Council may elect, in lieu of the above and without any prejudice to any of its other legal rights and remedies, to pursue other remedies, including obtaining an order fi.om the Superior Court having jurisdiction compelling the Lessee to comply with the provisions of this Lease, and to recover damages and costs incurred by the City by reason of the Lessee's failure to comply. The City Council shall utilize the following factors in analyzing the nature, ckcumstances, extent, and gravity of the violation and in making it's determination under this Section: A. Whether the misconduct was egregious; B. Whether substantial harm resulted; C. whether the violation was intentional; De requirements; whether there is a history of prior violations of the same or other E. Whether there is a history of overall compliance; and F. Whether the violation was voluntarily disclosed, admitted or cured. 40. NOTICE OF ENTRY ON PRIVATE PROPERTY. If directed by the City, at least 24 hours prior to entering private property or streets or public easements adjacent to or on such private property to perform permitted new construction or reconstruction, a notice indicating the nature and location of the work to be performed shall be physically posted, at no expense to the City, upon the affected property by the Lessee. A door hanger may be used to comply with the notice and posting requirements of this Section. The Lessee shall make a good faith effort to comply with the property owner/resident's preferences, if any, on location or placement of underground installations (excluding aerial cable lines utilizing existing poles and existing cable paths), consistent with sound engineering practices. Provided, however, that nothing in this Lease shall permit the Lessee to unlawfully enter or construct improvements upon the property or premises of another. 41. SAFETY REQUIREMENTS. The Lessee, in accordance with applicable federal, state, and local safety requirements shall, at all times, employ ordinary care and shall install and maintain and use commonly accepted methods and devices for preventing failures and accidents which are likely to cause damage, injury, or nuisance to the public and/or workers. All structures and all lines, equipment and connections in, over, under, and upon the streets, sidewalks, alleys, and public ways or places of a Lease area, wherever Situated or located, shall at all times be kept and maintained in a safe, suitable condition, and in good order and repair. The City reserves the general right to see that the telecommunications facility of the Lessee is constructed and maintained in a safe condition. If a violation of the National Electrical Safety LEASE AGREEMENT - 17 U $ WEST WIRELF.~S - Andiron Cr~k Code or other applicable regulation is found to exist by the City, the City will, after discussions with the Lessee, establish a reasonable time for the Lessee to make necessary repairs. If the repairs are not made within the established time fratne, the City may make the repairs itself or have them made and collect all reasonable costs thereof from the Lessee. 42. LIENS. Lessee shall not permit any lien to be imposed upon the property of the City as a result of work done by or on behalf of user and shall indemnify and hold the City harmless against any and all expenses, including reasonable attorney's fees and court costs in connection with any such lien. 43. MISCELLANEOUS. A. This agreement shall be governed by the laws of the State of Washington. B. Any claim, controversy or dispute arising out of this Lease shall be settled by arbitration in accordance with the applicable rules of the American Arbitration Association, and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The arbitration shall be conducted in the county where the property is located. There shall be no discovery other than the exchange of information which is provided to the arbitrator by the parties. The arbitrator shall have the authority only to award compensatory damages and shall not have authority to award punitive damages or other noncompensatory damages, the parties hereby waive all rights to and claims for monetary awards other than compensatory damages. C. Each party agrees to furnish the other, within ten (10) days after request, such truthful estoppel information as the other may reasonably request. D. This Lease constitutes the entire agreement and understanding of the parties, and supersedes all offers, negotiations and other agreements. There are no representations or understandings of any kind not set forth herein. Any amendments to said Lease must be in writing and executed by both parties. E. If either party is represented by a real estate broker in this transaction, that party shall be fully responsible for any fee due such broker. F. If any term of this Lease is found to be void or invalid, such invalidity shall not affect the remaining terms of this Lease, which shall continue in full force and effect. G. Any notice or demand required to be given herein shall be made by certified or registered mail, return receipt requested, to the address of the respective parties set forth below: LEASE AGREEMENT - 18 U S WEST WIRELESS - Anderson Creek LESSOR: City of Bremerton Administrative Services Director 239 Fourth Street Bremerton, WA 98337 LESSEE: U S WEST Wireless, LLC c/o U S WEST Communications Group Real Estate Services 8200 E Belleview, Suite 500 Englewood, CO 80112 Attn: PSL Manager/Wireless COPY TO: U S WEST Wireless, LLC 450 110th Avenue NE, Room 209 Bellevue, WA 98004 Attn: Regional Real Estate Manager 44. NONDISCRIMINATION. Lessee shall not discriminate in employment or services to the public on the basis of race, color, national origin, sex, religion, age, marital status or disability, except employment actions based on a bona fide occupational qualification. U S WEST WIRELESS, LLC Date: Date: CITY OF BREMERTON Date: LYNN S. HORTON, Mayor DEPARTMENTAL APPROVAL: W. EUGENE SAMPLEY, Director of Public Works & Utilities // // LEASE AGREEMENT - 19 u s WF_3T WIRELESS. Andemm Creek APPROVED AS TO FORM: GLENNA MALANCA, Interim City Attorney State of Washington County of Kitsap SS. On this __ day of ,19 , personally appeared Lynn S. Horton to me known to be the Mayor of the City ofBremerton, a municipal corporation, that executed the within and foregoing instrument, and acknowledged said instrument to be the free and voluntary act and deed of said municipal corporation, for the uses and purposes therein mentioned, and on oath stated that she was authorized to execute said instrument. In witness whereof I have hereunto set my hand and affixed my official seal the day and year first above written. RECEIVED FOR FILING: Notary Public in and for the State of Washingtbn Residing at My commission expires: KATHLEEN L. McCLUSKEY, City Clerk LEASE AGREEMENT - 20 U S WEST WIRELESS - Antietam Creek From: Electromcs Div. To: Denise Lorenz Date: 11/-ZbI~I! , Electronics Technician 0 'l'ue~day, November 25, ~ 997 Page t of I TO: Denise Lorenz Strata Communications FROM: Glenn Shephard, Electronics Technician Electronics Division CC: Paula Johnston. Alien Jacobs SUBJECT: Proposed Anderson Creek Radio Communications Site The City of Bremerton would like to reserve some space on the proposed tower at Anderson Creek and also some space on the ground for the Radio equipment to accommodate City and Kitsap County Cencom needs. Following is a rough estimate of those needs: 1. Radio Telemetry Repeater System operating on 458.2375Mhz and 458.8875 at 3 watts output using EF Johnson telemetry radios 242-3472-240 or equivalent. Transmit and Receive Frequencies have not been determined at this time. Two Yogi antennas around the 20'-30' level. 2. Radio Receivers compatible with the GE Voting Receiver System on 154.890Mhz, 153.920Mhz, 154.370Mhz, 153.995Mhz, 154.145Mhz, 153.815Mhz. A Receiver combiner system to allow the use of one Receiving Antenna. One VHF 6-9 db gain Antenna as high on the tower as possible, preferably above 80 feet. Top mounting of antenna would be desirable if compatible with other uses. If Antenna is mounted lower, north side mounting would most likely give best coverage, but we would like to optimize for best coverage. 3. Pole Mount, Pedestal Mount, or Small Building to house the Radio Equipment. I would estimate that all our equipment would fit in a standard 19" rack mount cabinet no larger than 2' x 2' x 6'. An alternative would be to provide a building for all equipment including our equipment, US West's, and proposed futures. In addition to the above, 6 pair of wire will be needed to connect the Voting Receivers to the Voting Selectors at Cencom I would guess we would use leased lines unless some other method could be worked out. If you need more additional clarification on the above, don't hesitate to give me a call. THANKS. PAGE 1 a Celebrating 50 Years of Yreedom a '"~ s:Xuser~-nn\wordLfik, sLandcrk.doc Creative Solutions ... Superior Service P.O1×O9 PACIFIC 3025 1 l'~th Ave., NE Beilevu~ WA 98009 (415) 827.0220 To: Company: Address: City/State: Tel/Fax #s: Date: Project Number: Project Name: Regarding: FAX From: Phone No.: Fax No.: Allen Potter 425- 451-6012 (Office) 206-972497 t (Mobile) (425) 451-6310 CC; # of pages: Engineering + Landscape Architecture · Environmental Services Planning * Surveying and Mapping washington + Oregon + Idaho FEB 18 '98 14:22 FR USbJ klIRELESS/SEA U $ WI:OT GOmmuni~s 450 1~ ~ ~ R~ 451 6310 TO 913604?85200 P,02/09 February 4, 1998 City of Bremerton Ms. Kathleen McCluskey City of Bremerton 239 Fourth Street Bremerton, WA 98310 Lease Application Proposal US WEST Wireless PCS aite/BKE 005 3000 Block Highway 16/Anderson Creek Rd. Dear Ma. McCluskey: US WEST Wireless LLC, hereby submits this formal request to lease City owned property located near the 3000 Block of Highway 16/And.erson Creek Rd. for the construction ora PCS facility and to provide for collocation of City telecommunicahons needs as well as collocation for other wireless providers. This request is made in accordance with Section 4 of the Telecommunications Facilities Option and Lease Agreement proposed between the City of Bremerton and US WEST Wireless. If you need additional information or have any questions, please contact me at (425) 451-6181 or Allen Potter at (425) 451-6012. On behalf of US WEST Wireless, I would like to thank you and the City of Bremerton for its cooperation and assistance in completing this transaction. Sincerely, Ralph Long kJ Regional Real Estate Manager US WEST Wireless file FEB 10 '98 14:22 FR US~ ~IRELESS/SEA P.04/09 206 451 6310 TO 913604?85200 LEASE APPLICATION PROPOSAL SUBMITTED TO: THE CITY OF BREMERTON BY: US WEST WIRELESS SITE NAME: BRE 005B LOCATION: 3000 Block, Highway 16 ~05×09 A. APPLICANT IDENTITY: US WEST Wireless, LLC 450 110~' Ave. NE Rna 209 Bellevue, WA 98004 Contact: Ralph Long, Reg. Real Estate Manager Phone: (425)-451-6181 B. APPLICATION PREPARER: W & H Pacific, Inc. 450 110~' Ave. NE Rm 209 Bellevue, WA 98004 Contact: Allen Potter Phone: (425)-451-6012 C. DESCRIPTION OF SERVICE: USWEST Wireless is in the process of developing a new cellular telephone system called Personal Communication Services, or PCS. PCS is a unique combination of telecommunication services that will provide the public with the next generation of wireless devices, such as: compact cellular telephones with paging and voice-mail service, wireless fax machines and fax modems, and an array of other customized mobile equipment. When fully developed, PCS will allow for an all-in-one telecommunications dev/ce combining multiple services in a single wireless telephone. PCS uses new digital technology to produce a higher quality transfer of voices and data versus the older analog/digital systems that are currently being used by many wireless telephone service providers. This digital technology also accommodates the transfer of data and graphics. In addition, PCS operates at a higher frequency, around 1,900 megahertz, and broader frequency band than conventional cellular. This allows for more simultaneous callers. In order to provide these services, USWEST is developing a PCS network in Bremerton. PCS works by splitting a region into smaller geographic areas called cells, each cell is served by a transmitter and receiver or base station. As a caller moves across the landscape, the call is passed or "handed-off' from one base station to another. Each base station is connected to a mobile telephone switching office, which is linked to the land based phone network serving your home or office. Individual base station site locations, such as the proposed site, are selected based on a number of considerations related to topography, distance from other base stations, proximity to traffic corridors, and other technical features. USWEST engineers utilize computer modeling and radio testing to dctermine potential sites. Because PCS base stations consist of very low powered transmitters, which cover a relatively small FEB 10 '98 14:23 FR Uc~'l WIRELESS/SEA 206 451 6~10 TO 91~604785200 P.06×09 geographic area, there is limited flexibility in site selection. USWEST tries to locate its sites where the impact to local residents is minimal. This proposed PCS base station facility located near the 3000 block of Highway 16 is designed to provide PCS service to portions of the City of Bremerton, including Highway 16 east and west Bay St. to Port Orchard, Route 3 to Bremerton, the city of Gorst, and west of Gorst along Highway 3. When developed, this facility will connect to other neighboring facilities in the network allowing for uninterrupted PCS service in this region of the City of Bremerton. USWEST is committed to providing quality PCS service to this area and the BremertordSeattle Metropolitan area for years to come. D. DESCRIPTON OF FACILITY: The proposed transmitter/antenna consists of a 100 foot monopole and associated wireless communication transmitting and receiving equipment. US13gEST antennas will be mounted at the 100 foot elevation. The US WEST equipment will consist of six steel gray panel antennas approximately four feet long and six inches wide and three equipment cabinets containing the electronic equipment necessary to transmit the USW'EST signal. These cabinets are five feet, six inches tall. The cabinets will be mounted to a concrete pad measuring approximately nine feet six inches by twelve feet. Each antenna will be mounted vertically onto cross pieces at the top of the tower. The US WEST facility will be located within a 18' by 19' square foot leased area. The lease area will be surrounded by a six foot tall chain link fence with a locking gate to secure the facility. The leased area is located on a portion Parcel No. 3324 013 012 20 08. The proposal calls for an tmmanned facility and following construction there will be only quarterly visits by a service technician (except in the ease of an emergency) to ensure that equipmem is functioning properly. Access to the site will be provided from a roadway from Highway 16. E. DESCRIPTION OF CITY PROPERTY: The property curremly is used as a watershed for the City of Bremerton and is managed by their Forestry Department. F. OWNERS DRAWINGS: (see attached site plans) G. CONCEPTUAL DRAWINOS/DIAORAMS: (see attached site plans) FEB 10 14:24 FR US~.l WIRELESS/SEA 451 6310 TO 913604785200 P.07/09 FI. CABLE FRANCHISING · The Applicant does not indent to provide cable service, video dial tone service or other video programming service. I. MAP OF EXISITNO TELECOMMUNICATIONS FACILITES: map) (see attached J. DESCRIPTON OF SERVICES/FACILITIES MADE AVAILABLE TO CITY: US WEST Wireless proposes to allow for collocation on the proposed new tower for City communications equipment and any other user that may apply to the City for collocation subject to technical and structural review and approval. K. COLLOCATION ON EXISTING SITES: US WEST Wireless considered property located at 2342 Anderson Hill Road SW. The RF Engineering Dept. selected the City property as the preferred site. NW N NE W SW E Usc Subject lo License / Copyright S 3027 olympus dr Bremerton WA SE Click Below Zoom I~ nalional ! ' '~lll~ regional I~I~ clly · % I IIIIF stfee~ On Click: (~)Center Zoom In Zoom Out NW W SW N Click Below t~¢ Zoom ~ ~ national ~ Ilk On Click: (~) Center 0 Zoom In 0 Zoom Out O lgO7 Geo,5~,~term Global Corp.; 01007 Hav'l'eoh /--'--~ Usc Subject to License / Copyright S SE AGENDA BILL BREMERTON CITY COUNCIL 1. SUBJECT: Renew one year Kitsap YMCA membership for all qualified City employees and officials. FOR AGENDA OF: February 18, 1998 ORIGINATING DEPT: Human Resources ORIGINATOR: Barbara Forbes DATE SUBMITTED: February 11, 1998 2. _/C~ARANCES: xg(Comment on back if ~F~al ~Bu~ Co.~_t. _ee pe~tiens ommittee~ We~e s ~ Commit t e e NDOR NTW IN 0 ION necessary) 3. EXHIBITS: Proposed Agreement APPROVED BY COUNCIL PRESIDENT FOR SUBMITTAL: COUNCIL PRESIDENT ~ k_ 4. S~RY STATEMENT AND REQUIREMENT FOR COUNCIL ACTION: In February 1996, City Council approved the initial 1-year agreement with the Kitsap Family YMCA to provide a health/fitness program. This program was implemented to assist, motivate and support employees in the improvement of their well being. The program had been successful in improving employees' morale, energy level, and decreasing stress levels. Due to the success of the program, the Wellness Committee requested and gained approval to renew the YMCA contract for 1997. Survey results indicate that the program is still well received and employees would like it to continue. Ordinance 4514 allows expenditures from the Employee Medical Insurance Reserve Fund for employee wellness programs, subject to budgetary authorization of the City Council. 8. RECOM/~ENDATION: Approve the expenditure of $29,000 from the Employee Medical Insurance Reserve Fund to pay for the cost of a YMCA membership for all regular employees and officials beginning March 1, 1998 to February 28, 1999. This is a $1,000 annual reduction from the past two years. Expenditure to be paid in monthly installments. 9. RESPONSIBLE OFFICIAL: Jim Meith, HR Manager ENFORCEMENT OFFICIAL: Jim Meith, HR Manager EXPIRATION DATE: On-going REVIEW DATE: On-going 10. NOTICE OF ACTION PULLED [] TABLED [] APPROVED [] DISAPPROVED [] AMENDED [] DATE: COUNCIL DIRECTIVE: 11. AGENDA BILL NO.: (OVER) 2. CLEARANCES COMMENTS: 5. IMPACT OF NON-PASSAGE: Non-passage would discourage employees that may affect morale, sick leave usage, workers compensation claims and inappropriate use of medical benefits. 6. IMPACT ON STAFFING, BUDGETS, FACILITIES, EQUIPMENT OR OTHER RESOURCES: Funds are available in the Employee Medical Reserve Insurance Fund and will not have an impact on the 1998 budget. 7. RESEARCH SOURCES: GROUP M~MBERSH~ AGREEMENT The City of Bremerton (hereinafter referred to as "City") and the Kitsap Family Y.M.C.A. (hereinafter referred to as "YMCA") mutually agree to the establishment of a City employee group membership subject to the general provisions embodied in this agreement. This agreement shall be in effect for the period of March 1, 1998 through February 28, 1999. The YMCA will provide full membership privileges for any regular City employee or official of the City who is qualified for membership under the City's wellness program criteria. The City will provide the YMCA with a current listing of qualified employees and officials, and will amend that list on a monthly basis for additions and deletions. The YMCA agrees that it will provide the City with a monthly printout of employe&s use of the program. It is understood that employees participating in this program are doing so on a voluntary basis and the City assumes no liability for any injuries that may result from participation in the program. In consideration of the above, the City shall pay the YMCA the sum of Twenty Nine Thousand Dollars and No/100 ($29,000.00). Payment shall be paid in monthly installments of Two Thousand Four Hundred Sixteen Dollars and 66/100 ($2,416.66) and due by the 15th of each month. In addition, the YMCA agrees to waive the one time building fund assessment fee of Eighty Dollars ($80.00) per qualified employee and the building fund assessment fee of Forty Dollars ($40.00) for spouses. There is no building fund assessment fee for youth (18 and under). Under this contract the monthly rate for membership dues for a spouse will be $19 and the rate for membership for youth (age 18 and under) will be $6 per child. A max/mum of three children is charged per family. If said contract is not renewed by the City after this contract year, those employees who are current members and wish to continue their membership will have the building fund assessment fee waived, but will be respons~le to pay the regular monthly dues as set by the YMCA. All participating group members must sign the code of conduct attached as exh~it "A". All group participants will also be required to complete a membership application. Those employees who participated in 1997, will be required to submit another program agreement with the City. Failure to comply with the rules of conduct may result in the individual's suspension of membership for thirty (30) days. // For the Kitsap Family Y.M.C.A. For the City of Bremerton: Glen Godfrey, Executive Director Lynn Horton, Mayor Jim Meith, Human Resources Manager Received for Filing: Kathy McCluskey, City Clerk ~gl~ed as to F,~flm: _ Gle~n~v~alanca, City Attorney AGENDA BILL BREMERTON CITY COUNCIL 1. SUBJECT: Confirmation of Glenna Malanca As City Attorney FOR AGENDA OF: February 18, 1998 ORIGINATING DEPT: Human Resources ORIGINATOR: Jim Meith DATE SUBMITTED: February 12, 1998 2. CLEARANCES: (Comment on back H~4an Resources Manager if necessa~)/ 3. EX}{IBIT______~S: Resume · /, ~nt e~-'Ci~- Attorhey ENDORSEMENT ~ INFORMATION [] APPROVED BY COUNCIL PRESIDENT FOR SUBMITTAL: COUNCILPRESIDENT ~~~~/x~ SUMMARY STATEMENT AND REQUIREMENT FOR COUNCIL ACTION: The Human Resources Manager has completed a recruitment for the position of City Attorney. The top three candidates were interviewed by a selection panel. Glenna Malanca was the unanimous choice of the panel. The Mayor wishes to appoint Ms. Malanca. RECOMMENDATION: Motion to approve the appointment of Glenna Malanca to the position of City Attorney. 9. RESPONSIBLE OFFICIAL: Mayor ENFORCEMENT OFFICIAL: Mayor EXPIRATION DATE: REVIEW DATE: 10. NOTICE OF ACTION PULLED [] TABLED [] APPROVED [] DISAPPROVED [] AMENDED [] DATE: COUNCIL DIRECTIVE: 11. AGENDA BILL NO.: (OVER) f ~ 2. CLEARANCE COMMENTS: IMPACT OF NON-PASSAGE: The City would continue to function with no City Attorney appointed pursuant to the Charter. 6. IMPACT ON STAFFING, BUDGETS, FACILITIES, EQUIPMENT OR OTHER RESOURCES: Adequate funds are allocated in the 1998 budget. 7. RESEARCH SOURCES: RESUME OF GLENNA MALANCA IMMEDIATE PAST AND PRESENT POSITIONS: City Attorney for the City of Ellensburg, Washington - 1988 to August, 1992. Senior Assistant City Attorney, City of Tacoma, August - 1992 to August - 1977. Assistant City Attorney and Interim City Attorney for City of Bremerton, September - 1977 to present. MUNICIPAL LAW EXPERIENCE: Advise City of Bremerton, Mayor, City Council, Department Heads and Staff. Manage outside counsel for litigation; handle litigation, negotiations as necessary. Assigned to City of Tacoma Department of Public Utilities as one of the staff attorneys to advise and represent the Department, including significant civil litigation for the Department. as Supervisor of the City of Tacoma Criminal Justice Division of the City Attorney' s Office. Commencing August of 1992, I was assigned to the Public Works Department and assumed primary responsibility for monitoring all Tacoma Landfill litigation. This responsibility required close monitoring of City compliance with the Consent Decree and related disputes and litigation; coordinating and cooperation with outside counsel in complex litigation; and involvement in negotiating resolution to significant legal concerns, including the purchase of the defaulted first position on the Olympic Ridge Apartment complex. Achieved Senior Assistant City Attorney status in 1993, with the assignment of lead attorney for Public Works I_and Use and Environmental Law. Also supervised the litigation team and personnel matters. · Lead Assistant City Attorney in the Clerical Workers 1992 strike and related strategy and court activity. · Legal advisor to and member of the apartment management team, providing management of the City owned apartment complexes. Extensive negotiation and administrative experience with governmental agencies, including the U.S. Environmental Protection Agency, Washington State Department of Ecology and Department of Natural Resources. [TA970440.031 ] ?? · Addressed numerous general government issues at the request of the City Attorney. · Supervisor of the Criminal Justice Division of the City Attorney's office. This division employs 16 full-time employees and is responsible for the operations and prosecutions of the Tacoma Municipal Court. · Senior Assistant City Attorney for Department of Public Utilities for the City of Tacoma (TPU). ELLENSBURG · Handled legal matters for all departments of the City, including the Energy Services Department. Provided legal counsel to the City Council, attending all City Council open and executive session meetings. Advised all commissions and committees created by the City. Served as chief labor negotiator for the City, bringing to successful conclusion four complete labor agreements with three different unions. Additionally, significant involvement in widely recognized favorable firefighter interest arbitration for the City which has been utilized by the City of Tacoma. Served on the arbitration panel also. · Guided the City from Third-class City status to Code City form of government, with a referendum petition filing and resultant election. · Drafted all ordinances and resolutions for the City, including LID assessments. In charge of the municipal court and all criminal prosecutions. This involved contractual issues between the City and Kittitas County, and extensive litigation, including jury trials. · Handled in house civil litigation not covered by the AWC Risk Management Pool. Actually handled some matters on behalf of the Pool at AWC request. Ellensburg has a much broader range of needs and issues involving the City Attorney because Central Washington University (7,000 students, staff and faculty) is located within the City limits. ~A970440.0311 -2- GENERAL PRACTICE OF LAW: Admitted to practice: May, 1978. Twelve years in private practice. Prior to locating in Ellensburg, my general practice of law included exposure to a variety of areas of law of obvious relevance to municipal, district and superior court practice, including land use, real estate, contracts, criminal, wills and trusts, probate, domestic relations and domestic violence, business law, labor law, and personal injury. PRO-TEM COURT EXPERIENCE: In municipal and district Courts in Ellensburg, Kittitas County, handling both civil and criminal dockets. TRIAL EXPERIENCE: In addition to the above-referenced monitoring and involvement in complex litigation, the Ellensburg suit against the State of Washington and Central Washington University was a three-year litigation experience of tremendous professional value. A $10.13 million dollar judgment was entered in favor of the City, and appealed by the State. Extensive discovery and trial preparation in a media climate of intense focus, and a delicate political environment because of CWU involvement, provided unlimited challenges to the City Manager and City Attorney. My private practice and service as the City Attorney of Ellensburg also involved significant litigation responsibilities in district court, superior court and federal district court, including significant appellate practice. I recently handled a $3 million wrongful death claim arising from the electrocution of a worker for a sign company. A City of Tacoma summary judgment was granted in Pierce County Superior Court. LEGISLATIVE EXPERIENCE: Experience includes key positions in influencing the defeat and passage of legislation of interest to municipalities. Specifics include extensive efforts to re- enact fire protection provisions subsequent to the Ellensburg judgment and prior to a decision on the appeal. The new statute laid the groundwork to a lucrative fire protection contract between Ellensburg and CWU, which also helped other cities, including Tacoma. Recent contributions include contributing to the [TA970440.0311 -3- defeat of an unfavorable "pole attachment" bill, and replacement with favorable provisions. PROFESSIONAL ORGANIZATIONS AND COMMUNITY INVOLVEMENT: · Admitted to practice in Western Washington and Eastern Districts of the United States District Court, the Court of Appeals and the Supreme Court of the State of Washington. · Past Board member of the Washington Association of Municipal Attorneys. · Member of Washington State Bar Association and Tacoma-Pierce County Bar Association. · Member of Peninsula School District Superintendent's Advisory Council. · Past Board member of the Northwest Burn Foundation. · Past Board member of the Alcohol/Drug Abuse Treatment Center in Ellensburg. Miscellaneous professional presentations, including off-hour education support to Ellensburg Police Department officers. REFERENCES: See Application and attached letter from Doug Williams. ~A970440.0311 -4- AGENDA BILL 1. SUBJECT: Approval of appointing Judy Johnson as Acting Director of Community Development BREMERTON CITY COUNCIL FOR AGENDA OF: February 18, 1998 ORIGINATING DEPT: Executive ORIGINATOR: Glenna Malanca, City Attorney DATE SUBMITTED: February 12, 1998 2. CLEARANCES:~p~ment on b/~ck }f necessary) C i t Y At t o rney:/~//~~_~-~_ Budget & Fiscal Committee: Executive Session 2-11-98 Operations Committee: Executive Session 2-11-98 3. EXHIBITS: ENDORSEMENT ~ INFORMATION [] COUNCIL PRESIDENT 4. SUMMARY STATEMENT AND REQUIREMENT FOR COUNCIL ACTION: The Community Development Department has been without a Director since January 1998. Ms. Johnson would have decision, si§nih§ and bud§etary authority for the department. All employees of the department would report to Ms. Johnson until a permanent Director has been appointed. 8. RECOMMENDATION: It is recommended that the City Council authorize Ms. Johnson to be titled Acting Director of Community Development. 9. RESPONSIBLE OFFICIAL: Mayor Horton ENFORCEMENT OFFICIAL: EXPIRATION DATE: REVIEW DATE: 10. NOTICE OF ACTION PULLED [] TABLED [] APPROVED [] DISAPPROVED [] AMENDED [] DATE: COUNCIL DIRECTIVE: 11. AGENDA BILL NO.: 2. CLEARANCES COMMENTS: 5. IMPACT OF NON-PASSAGE: The position of Director of Community Development remains vacant. 6. IMPACT ON STAFFING, BUDGETS, FACILITIES, EQUIPMENT OR OTHER RESOURCES: None. 7. RESEARCH SOURCES: AGENDA BILL 1. SUBJECT: ORDINANCE #4623 Repealing Ordinance No. 4619 amending City of Bremerton Shoreline Master Plan BREMERTON CITY COUNCIL FOR AGENDA OF: February 11, 1998 ORIGINATING DEPT: Legal ORIGINATOR: Glenna L. Malanc . Interim Ci~y~.~ttorney DATE SUBMITTED: February /~ 1998 2. ~F~%~u~: (Comment on back if necessary) ECTOR OF COMMUNITY DEVELOPMENT Proposed Ordinance Ordinance No. 4619 ENDORSEMENT .~' INFORMATION [ ] 4. SUMMARY STATEMENT AND REOUIREMENT FOR COUNCIL ACTION: The provisions of Ordinance No. 4619, adopted upon second reading on December 30, 1997, duplicate the provisions of Chapter Five of the Shoreline Master Plan, specifically Regulation No. 10 at Water Access and Moorage, which regulation mandates that piers and docks are to be prohibited where navigation may be significantly impaired at entrances to bays, channels or coves. It is the City Attorney Office's opinion that this provision in the Shoreline Master Plan applies to the channel between Oyster and Ostrich Bays. The City Attorney's Office has determined that procedural deficiencies in the consideration process of this ordinance render its enforceability questionable. The proposed ordinance would repeal Ordinance No. 4619. 8. RECOMMENDATION: Motion to approve on second reading Ordinance No. ~/~ 9. RESPONSIBLE OFFICIAL: ENFORCEMENT OFFICIAL: EXPIRATION DATE: REVIEW DATE: 10. NOTICE OF ACTION PULLED [] TABLED [] APPROVED [] DISAPPROVED [] AMENDED [] DATE: COUNCIL DIRECTIVE: 11. AGENDA BILL NO.: o3_o 2. CLEARANCE COMMENTS: 5. IMPACT OF NON-PASSAGE: Argument could be made that the procedural process leading to the adoption of the adoption of Ordinance No. 4619 could affect the enforceability of its provisions. 6. IMPACT ON STAFFING, BUDGETS, FACILITIES, EOUIPMENT OR OTHER RESOURCE2: ?. RESEARCH SOURCES: SMP-REP.AB - Agendas - 2/3/98 OP. DrNANCE NO. R AN ORDINANCE repealing Ordinance No. 4619 amending the City of Bremerton Shoreline Master Program restricting docks and piers in the channel between Oyster Bay and Ostrich Bay. WHEREAS, the City Attorney has determined that provisions of City Ordinance No. 4619 appear to be a duplicate of Chapter Five of the Shoreline Master Plan, specifically Regulation No. 10 at Water Access and Moorage which mandates that piers and docks are to be prohibited where navigation may be significantly impaired at entrances to bays, channels or coves; and WHEREAS, the City Attorney has determined that City Ordinance No. 4619 is subject to valid legal attack due to procedural deficiencies; now, therefore, THE CITY OF BREMERTON DOES HEREBY ORDAIN: Section 1. Repeal. Ordinance No. 4619 restricting docks and piers in the channel between Oyster Bay and Ostrich Bay is repealed in its entirety. Section $. Effective Date. This ordinance shall become effective ten (10) days from passage and pUblication. APPROVED by the City Council of the City of Bremerton this day of ,1998. PASSED by the City Council of the City of Bremerton this day of ,1998. APPROVED this DAVID D. FARR, Council President day of , 1998. ATTEST: KATHLEEN McCLUSKEY, City Clerk SMP-REP. ORD - Disk 2 - 273/98 LYNN HORTON, Mayor 1 A~N ORDh-NANCE mending the City Bremerton ShorelJ. ne Master Pro?am, adopted by Ordinance 4365, to restrict docks and piers in the channel between Oys-rer Bay and Ostrich. Bay. WHERE.~, the Bremerton Planning Comm/ssion conducted a public hearing on September 16, 1997 to consider mending regulation of docks and piers within the Oyster bay entrance charme! as directed in Bremerton Resolution No. 2621; and WHEP,.EAS, the Breme,'-ton Planning Coma-n.ission has forwarded its resolution recommendin_~ that the Oyster Bay entrance channel have a s~eeial Environmental Designation that would prokibir piers and docks ~ven the unique topo~apkic~ characte,'-isrica o£ th/s chm'mel; and WHFREAS, the Bremerton City Co,t_mc/i, after taking public testimony on the recommended changes to the Shoreline Master Plan pursuant to SM~P Chapter 7 G, adopts the findings and recommendation of the Planning Commission mending the channel Environment Designation as an area of unique and hazardous characteristics and physical limitations incomoatible w/th intense development; and prohibiting construction of docks and piers in the channel; now, therefore, TIlE CITY OF BREi'vEERTON DOES WF~REBY ORDA~': Section 1. Amendment. The Bremenon Shoreline Master Plan, Table 3-1 Shoreline Use/Activity Matrix, is mended to include a foomote to the Piers and Docks ShoreLine Use/Acti¼r~- for the Residential Environmental Designation to read as follows: Piers and docks are prokibked in ~e entrance channel to Oyster Bay as depicted in Figure 3-5; all as set forth is E.-dn. ibit "A" attached hereto and :.',.corporated here;,n by ret%fence. Section 2. Amendment. The Bremencn Shoreline Master Plan Chapter 3F is amended include a new subsection to read as fo[lows: Oyster Bay Charmel Piers and docks shall be srohJbited in the channel berween Oyster Bay and Ost~ch Bay as desicted in Fixate 3-5. Figure 3-5 attached hereto as E.-d'fibit '~B" shall be added to SM2~ Chapter 3F. Section 3. Amendment. SMP SHOtLELh-N'E USE POLICIES A_ND tLEGULATIONS, WATER ACCESS AND MOORAGE, REGULATIONS, 10 is amended to read as follows: ~.OR.D - Di~k 2 - 1 ~4~":)7 Piers and Docks 10. ProhJbked: Piers and floati, ng docks shall be prohibited where navigation may be imparea o '-can,Iv entr~,nces to bays, channels, or coves. NO oiers 9r fioar, ine docks w~ll I~e ~e.~n;ed in the channel be,'-ween ©~tNch and Oyster Bay: Section 5. Effective Date. This ordina:nce sh-S.l take eff'~t upon ~;~.~ approval by the Sta~e Department oFEcolog-y in accordance v,ith P..CW 90.58.120. .A. PPP..OV'ED by the City Councii of(he Ckv of Breme.~on this day of .., 1997. PASSED by the City Council of the Ckv o~ o,eme.~on ., 1997. day cf DAVT~ D. F.;-MPd:(, Counc:; Preside.ar .APPROVED this . day of ATTEST: LY~,_-N' HORTON, Nizvor K_A.T'~_EEN McCLUSi<..E'z', Cir,' Clerk Dear. of EcoioT:' Approve, Err'"ec:ive Da:e: