HomeMy WebLinkAboutBU 846273 Kitsap Lake Lease Docs as recordedSite nnmbert BR02
Site name:tetaap Lake
PA¹:10092156
Market:Seattle
FIRST AMENDMKNT TO THE TELECOMI¹IUNICATIONS FACILITIES
LEASE AGREEMENT
BETWEEN THE CITY OF BREMERTON AND
NKW CINGULAR WIRELESS PCS,LLC
AGREEMENT:Citv of Bremerton ¹4566.Telecommunications Facilities Lease Aureement at
Alexander Lake (West)
LESSEE:New Cinnular Wireless.PCS.LLC
EFFECTIVE DATE OF THIS FIRST AMENDMENT:Julv 6.2011
THIS FIRST AMENDMENT ("First Amendment")TO THK AGREKMKNT
SPECIFICALLY AMENDS THE TELECOMMMUNICATIONS FACILITIES LEASE
AGREEMENT (the "Agreement")entered into between the City of Bremerton and New
Cingular Wireless,PCS,LLC on July 6,2006.
All provisions in the Agreement shall remain in full force and effect except as expressly modified
by this First Amendment.
For valuable consideration and by mutual consent of the parties,the modifications to the Agreement
are as follows:
I.
1.Section 5.Term of the Agreement,is modified as follows:
The term of this Agreement shall be extended to Julv 5,2016
2.Section 41.G of the Agreement is hereby deleted and replaced with the following:
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.Further any
correspondence regarding this lease or the site shall be sent to the addresses below:
If to City:
Bill McKinney,Forestry Manager
Bremerton Public Works 8c Utilities
100 Oyster Bay Ave.N.
Bremerton,WA 98312
CONTRACT MODIFICATION
Contract Number:4666
If to Lessee:
New Cingular Wireless PCS,LLC
Attn:Network Real Estate Administration
Re:Cell Site ¹BR02
Cell Site Name:Kitsap Lake
Fixed Asset ¹:10092156
12555 Cingular Way,Suite 1300
Alpharetta,GA 30004
With copy to:
New Cingular Wireless PCS,LLC
Attn:Legal Department
Re:Cell Site ¹:BR02
Cell Site Name:Kitsap Lake
Fixed Asset ¹:10092156
(U.S.Mail)P.O.Box 97061
Redmond,WA 98073-9761
(overnight courier)16331 NE 72nd Way,RTC1
Redmond,WA 98052
Lessee accepts all requirements of this First Amendment by signing below.
This First Amendment shall supplement the Agreement and all provisions will apply hereto.It is
understood that this First Amendment shall be effective on the Effective Date written above after
being approved by the City of Bremerton.
The parties whose names appear below warrant that they are authorized to enter into this First
Amendment and that it is binding on the parties to the Agreement.
IN WITNESS WHEREOF,the parties have executed this First Amendment which becomes
effective on the Effective Date.
Public Works Director approved to process ~'~c '"~2 Q l K
Initials and Date
CITY:
CITY OF BREMERTON
By:Patty Le~
Its:Mayor 4 —r/-l m
CONTRACT MODIFICATION
Contract Number:4566
City Clerk
APPROVED FO
Bremeit7rn Citypttorney
LESSEE:
New Cingular Wireless PCS,LLC,
a Delaware limited liability company
By:AT&T Mobility Corporation
Its:Manager
n,:D ()e~D
Print Ngmet Rely J.Wgy
Its:Sr.'roject Manager
Date:3./9-IW
RALEGAL'\ContractatFORMS'(Contract Modiacation (2003).doc
CONTRACT MODIFICATION
Contract Number:4566
TELECOMMUNICATIONS FACILITIES
LEASE AGREEMENT
THIS LEASE AGREEMENT entered into by and between the City of Bremerton,a
municipal corporation duly organized and existing under the laws of the State of Washington,as
Lessor (hereinaAer referred to as "City")and New Cingular Wireless PCS,LLC,a Delaware
limited liability company (hereinafter referred to as "Lessee").
WITNESSETH:
1.PREMISES.The City leases to the Lessee real property located at Alexander
Lake for housing,installing,constructing,operating and maintaining certain telecommunications
facilities,legally described and/or depicted in Schedule A attached hereto and incorporated
herein ("Premises").Lessee accepts the Premises for such purpose,subject to the considerations,
terms and conditions specified in this Telecommunications Facilities Lease Agreement
(hereinaAer 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:
"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,including forest access roads;
"Public way"means and includes all public streets and utility easements,as those terms
are defined herein,now or hereaAer 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 storage structures and other appurtenances used or to be used to transmit,receive,
distribute,provide,house or offer telecommunications services;
LEASE AGREEMENT -1
"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 be responsible for adherence to all federal,state and local regulations pertaining
to the operation of a communications facility.
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 afier obtaining
required permits and as approved by City on the Site Plan.
City shall provide Lessee access to the Premises at all times on a twenty four hour a day,
seven day a week basis,adequate to service the Premises and the telecommunication facilities at
all times during this Lease.Lessee agrees to provide the City with a schedule outlining the
frequency of required visits (e.g.,quarterly maintenance check,monthly site cleanup,etc.)
Lessee shall provide the City with a list of all authorized individuals who will have
access to the Premises.Notification of changes to the list shall be provided to the City within 24
hours by telephone or fax from the point of contact identified in Section 41(G),which notice
shall be followed by written notification pursuant to Section 41(G).Lessee shall be responsible
for conducting appropriate background checks of all of their employees.
Employees visiting the Premises shall be clearly identifiable as employees of the Lessee
either by uniform,identification badge or marked company vehicle.
4.NON-EXCLUSLVE LEASE.Subject to the provisions of Section 7 herein,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.
LEASE AGREEMENT -2
5.TERM OF LEASE.This Lease shall be valid for a term of five year(s)
commencing ~u'ls 4+~f and terminating ~~i'v 5 ~~"ao <(.Lessee shall
have the option of rettewing this lease for additional five year periods up to a total of twenty-five
years.Notice of renewal must be received by the City within six (06)months of expiration of
each five year term.
6.RIGHTS GRANTED,This Lease does not convey any right,title or interest in
the City property,but shall be deemed the right 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 o f title.
7.INTERFERENCE WITH 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.ln the event that any other tenant'
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.Lessee understands that if its use interferes with the then-existing
equipment of a prior tenant,and the interference problem cannot be cured,this Lease may be
terminated by the City pursuant to Sections 35 and 37.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 such
interference as may be received from City operated telecommunications in existence as of the
Agreement's commencement date,or other City facilities located upon the City property subject
to this Lease except those City antenna sites placed upon Lessee's facilities pursuant to Section
10(B).
8.OWNERSHIP AND REMOVAL OF IMPROVEMENTS.All landscaping
and all other improvements,except telecommunications facility,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 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,if not removed by the Lessee upon 30
days written notice from the City,be removed and stored at the expense of Lessee.Stored
telecommunications facilities that are not claimed by the Lessee within six (6)months &om
termination of the Lease shall become the property of the City.
LEASE AGREEMENT -3
9.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 180
days written notice to the City.However,no prepaid rent shall be refundable;except in the event
any changes occur with respect to the City's use of the property subsequent to the effective date
of this Lease (including but not limited to additional Lessees as permitted by the City)and such
changes result in the property becoming unsuitable for Lessee's intended purpose.
10.COMPENSATION TO THE CITY.
A.Starting on the Commencement Date and on the first day of each month
thereatter during the term of the Lease,Lessee shall pay rent at a rate of One Thousand,Two
Hundred Dollars ($1200.00)per month,prorated for any partial months.Substantial expansion
of the initial configuration contained in Schedule A will result in review and possible re-
negotiation of the rental rate contained herein.
At the beginning of each successive year thereafter,the monthly rent shall automatically
be adjusted based upon the CPI for all urban consumers,Seattle-Tacoma index (1982-84=100)as
published by the Bureau of Labor Statistics for the last month for which statistics are posted prior
to the effective date above.However,rent shall not,in any case,decrease,nor shall the annual
rent increase by more than five (5)percent per year above the annual rent for the preceding year.
Any payments received atter 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.
B.Additional Consideration.City shall be allowed,at City's sole expense,to
attach City's communication antennas to Lessee's telecommunications tower provided City first
obtains Lessee's prior written consent for such attachments.Such consent shall not be
unreasonably withheld.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
LEASE AGREEMENT -4
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.
C.Pursuant to Section 27 Lessee shall pay to the City 50%of any and all sublessee
rent for co-location on Lessee's tower.
11.AMENDMENT OF LEASE.Except as provided within the existing Lease,a
new lease application and Lease shall be required of any telecommunications carrier or other
entity that desires to expand,modify,or relocate its telecommunications facilities or other
equipment located upon City property.If ordered by the City to locate or relocate its
telecommunications facilities or other equipment on the City property,the City shall grant a
lease amendment without further application.
12.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.Any additional information required based upon elements of the current
Lease agreement between the City and the Lessee;
B.All deposits or charges required pursuant to City ordinances;
C.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.
13.OBLIGATION TO CURE AS A CONDITION 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.
14.IMPROVEMENTS.During the term of this Lease if Lessee wishes to
substantially expand the initial configuration contained in Schedule A,Lessee will submit a new
application to the City.
15.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.
LEASE AGREEMENT -5
16.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 &Utilities Director.
17.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.
18.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 store any chemicals,
hazardous or otherwise,in the well head protection area.Lessee shall not restrict site access to
City.City shall have the 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 72
hours prior notice of such intent.City represents and warrants that,to the best of City's knowledge,the
Property has never been subject to any contamination or hazardous conditions resulting in any
environmental investigation,inquiry or remediation.City and Lessee agree that each will be responsible
for compliance with any and all environmental and industrial hygiene laws,including any regulations,
guidelines,standards,or policies of any governmental authorities regulating or imposing standards of
liability or standards of conduct with regard to any environmental or industrial hygiene condition or other
matters as may now or at any time hereafter be in effect,that are now or were related to that party'
activity conducted in or on the Property.
(b)City and Lessee agree to hold harmless and indemnify the other from,and to assume all
duties,responsibilities and liabilities at the sole cost and expense of the indemnifying party for,payment
of penalties,sanctions,forfeitures,losses,costs or damages,and for responding to any action,notice,
claim,order,summons,citation,directive,litigation,investigation or proceeding which is related to (i)the
indemnifying party's failure to comply with any environmental or industrial hygiene law,including
without limitation any regulations,guidelines,standards or policies of any governmental authorities
regulating or imposing standards of liability or standards of conduct with regard to any environmental or
industrial hygiene conditions or matters as may now or hereafter be in effect,or (ii)any environmental or
industrial hygiene conditions that arise out of or are in any way related to the condition of the Property
and activities conducted by the party thereon,unless the environmental conditions are caused by the other
party.
LEASE AGREEMENT -6
19.SIGNAGE.Lessee shall display proper signage as required by the FCC as well
as current signage on telecommunication facilities identifying Lessee,address and a 24 hour
phone number.Signage shall be posted and clearly visible at all times.
20.RELOCATION OR REMOVAL OF FACILITIES.Within one hundred
eighty (180)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 reasonably necessary for:
A.The construction,repair,maintenance or installation of any City or other
public improvement in or upon the public ways;and
public ways.
B.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.
21.REMOVAL OF UNAUTHORIZED FACILITIES.Within sixty (60)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 shall,at its own expense,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 60 days after
expiration or termination of the Lease;
of a Lease;
C.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
LEASE AGREEMENT -7
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 &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 have no further obligations or liability with respect to such property or 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.
22.EMERGENCY REMOVAL OR RELOCATION OF FACILITIKS.The City
retains the right and privilege to cut or move any telecommunications facilities located within the
public ways of the City and upon City property,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.
23.DAMAGE TO FACILITIES.Unless directly and proximately caused by the
sole negligence of 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.
24.RESTORATION OF PUBLIC WAYS,OTHER WAYS AND CITY
PROPERTY.
A.When the Lessee,or any person on its behalf,does any work in or
affecting any public ways,other ways or City property,or when Lessee,or any person on its
behalf damages 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.
LEASE AGREEMENT -8
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 &Utilities Director shall be responsible for inspection
and final approval of the condition of the public ways,other ways,and City property following
any construction and restoration activities therein.Further,the provisions of this Section shall
survive the expiration,revocation,or termination of this Lease.
25.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.
26.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.
27.LEASED CAPACITY AND CO-LOCATION.Lessee shall have the right,
with prior City approval and subject to 10(c)sublet the premises consistent with this Lease;
provided:
A.The Lessee shall furnish the City with a copy of any such proposed lease
or agreement between the Lessee and its sub-lessee;
B.The sub-lessee has complied,to the extent applicable,with the
requirements contained in this Lease;
C.The Lessee owns and/or controls the tower facility located on City
property;
LEASE AGREEMENT -9
D.The City and Lessee agree upon additional rental fee for sub-lessee hook-
ups pursuant to Section 10(c).
The City encourages co-location on existing telecommunications facilities and to that end
will not unreasonably withhold approval of sub-leases.
28.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.
29.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.
30.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 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:
A.Comprehensive general liability insurance,written on an occurrence basis,
with limits not less than:
(I)$2,000,000.00 combined single limit coverage for bodily injury
and property damage;
(2)Comprehensive form premises-operations,explosions and collapse
hazard,underground hazard and products completed hazard with limits of not less than
$2,000,000.00.
B.Automobile liability for owned,non-owned and hired vehicles with a
minimum limit of $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.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
LEASE AGREEMENT -10
telecommunications facilities.The Lessee shall provide an insurance certificate designating 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
Lessee's insurance shall be primary insurance as respects the operations of Lessee.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 in this
regard.The City shall be provided thirty (30)days advance notice of cancellation of any
coverages required in 30(A)above;
E.Within thirty (30)days after receipt by the City of said notice,and in no
event later than fifteen (15)days prior to said cancellation or intent not to renew,the Lessee shall
obtain and furnish to the City replacement insurance certificates meeting the requirements of this
Section.
31.GENERAL INDEMNIFICATION,Lessee covenants not to bring suit against
the City and hereby agrees to defend,indemnify,and hold harmless the City,its appointed and
elected officers,employees,agents and volunteers from and against any and all liability,loss,
costs,damage,and expense,including costs and attorney fees in defense thereof,and including
claims by the Lessee's own employees to which the Lessee might otherwise be immune under
Title 51 RCW,because of actions,claims or lawsuits for damages resulting from personal or
bodily injury,including death at any time resulting therefrom,sustained or alleged to have been
sustained by any person or persons,and on account of damage to property,arising or alleged to
have arisen directly or indirectly out of or in consequence of the performance of this Agreement,
whether such injuries to persons or damage to property is due to the negligence of the Lessee,its
agents,employees,representatives or assigns.This provision shall be inapplicable to the extent
such damage or injury is judicially found to be caused by the sole negligence of the City.This
provision waiving immunity for claims arising out of Title 51 RCW was specifically negotiated
by the parties.
Lessee assumes the risk of damage to its facilities located in the City's public ways,rights-of-
way,easements,and property from activities conducted by the City,its officers,employees,
agents,and volunteers.The Lessee releases and waives any and all claims against the City,its
officers,employees,agents,and volunteers for damage to or destruction of the Lessee's facilities
except to the extent any such damage or destruction is caused by the willful and malicious action
of the City,its officers,employees,agents,or volunteers.
32.CONSTRUCTION AND COMPLETION BOND.A performance bond
written by a corporate surety acceptable to the City equal to at least 100'/0 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 in the event construction is commenced.
LEASE AGREEMENT -11
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:
(I)Timely completion of construction;
(2)Construction in compliance with applicable plans,permits,
technical codes,and standards;
(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 warrant said restoration work for a period
of 1 year;
(5)The submission of 'as-built'rawings aAer completion of the work
as required by this Section;and
(6)Timely payment and satisfaction of all claims,demands or liens for
labor,material or services provided in connection with the work.
33.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 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:
(I)Complete information setting forth the nature,terms and condition
of the proposed transfer or assignment;
LEASE AGREEMENT -12
(2)Any other information reasonably required by the City.
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.
G.Lessee shall make no assignment or transfer of this Agreement without
obtaining the written consent of Lessor,which consent shall not be unreasonably withheld.
H.Notwithstanding anything to the contrary herein,the City's approval
and/or consent shall not be required for an assignment of the Agreement from the Lessee to
another person or entity controlling,controlled by,or under common control with the Lessee.
34.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 connol 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 33 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.
35.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:
LEASE AGREEMENT -13
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;
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
FL 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.
36.NOTICE AND DUTY TO CURE.In the event that Lessee is in violation of or
defaults under the provisions of the Lease,the Lessee shall be given written notice of the
apparent violation,default or non-compliance,providing a short and concise statement of the
nature and general facts of the violation,default or non-compliance,and providing the Lessee a
reasonable period of time not exceeding 90 days to cure the violation.
37.STANDARDS FOR REVOCATION OR LESSER SANCTIONS.If a
determination is made by appropriate City authority that a Lessee willfully violated or failed to
comply with any of the provisions of this Lease after notice is given the Lessee by the City under
the provisions of this Lease,then the Lessee shall forfeit all rights conferred hereunder and the
Lease may be revoked or annulled by the City.The City may elect,in lieu of the above and
without any prejudice to any of its other legal rights snd remedies,to pursue other remedies and
to recover damages and costs incurred by the City by reason of the Lessee's failure to comply.
LEASE AGREEMENT -14
38.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.
39.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
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.
40,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.
41.MISCELLANEOUS.
A.This agreement shall be governed and interpreted by the laws of the State
of Washington and any judicial action to resolve disputes arising out of this agreement shall be
brought in Kitsap County Superior Court.
B.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.
C.Each party agrees to furnish the other,within thirty (30)days after request,
such truthful estoppel information as the other may reasonably request.
LEASE AGREEMENT -15
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.Further,any correspondence regarding this lease or the site shall be sent to the
address below:
LESSOR:
City of Bremerton
Attn:Public Works 8r,Utilities
Administrative Manager
3027 Olympus Drive
Bremerton,WA 98310-4799
LESSEE:
New Cingular Wireless
Attn:Wireless Asset Management
Re;Cell Site;BR01 Kitsap Lake
P.O.Box 2088
Rancho Cordova,CA 95741-2088
with a copy to:
New Cingular Wireless
Attn:Network Real Estate Admin.
Re:Cell Site:BR02 Kitsap Lake
6100 Atlantic Boulevard
Norcross,GA 30071
with another copy to:
New Cingular Wireless
Attn;Legal Department
Re;Cell Site:BR02 Kitsap Lake
15 East Midland Avenue
Paramus,NJ 07652
LEASE AGREEMENT -16
The individuals identified in this paragraph shall be the specific point of contact for each party
regarding all topics.Any change to this point of contact shall be delivered to the other party in
writing by certified or registered mail,return receipt requested.All payments will be sent to the
City Finance Office at 345 6'"Street,Suite 600,Bremerton,WA 98337.
PL The City agrees to execute a Memorandum of this Lease Agreement which
Lessee may record with the appropriate Recording Officer.The date set forth in the Memorandum
of Lease is for recording purposes only and bears no reference to commencement of either term or
rent payments.
42.FIRE PRECAUTIONS.Lessee will ensure that all Forest Protection
Regulations and Fire Precaution Levels (IFPLs)are observed during closed season (April 15—
October 15).Lessee shall be responsible for checking IFPLs and keeping activities within those
allowed for a specific IFPL.Washington State Department of Natural Resources regulates forest
land activities and provides daily IFPLs via telephone and the internet.
43.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.
Date:i iAi=3 GCJQI
LOUIS R.LSIY
DEPLOYMENT MGR.PNW
LESSEE
New Cingular Wireless PCS,LLC,
a Delaware limited liability company
Name:<Lnuz V I:~a<
Its:Cm irinC
7-g-~>
CARY BOZEMAN,Mayor
APPROVED AS TO FORM:~/(~
RI5iGBFA.UJBOVICH,City Attorney
LEASE AGREEMENT -17
STATE OF 3)Jltst-I it tcTcrtd )
)SS.
COUNTY OF Kt tc~)
On this l day of 3<IA~,20~,bef me,the undersigned,a Notary
Public in and for the State of zN~,duly corn 'ioned and sworn,personally appeared
)~a%l~to me known to be an authorized re esentative of ,the
limited partnership that executed the foregoi instrument,and acknowledged said instrument to
be the free and voluntary act and deed o,for the uses and purposes
therein mentioned,and on oath state at He is authorized to execute the said instrument.
IN WITNESS WHER F,I have hereunto set my hand and affixed my official seal the
day and year first above w 'en.
Print or Type Name:
Notary Public in and for the State of
residing at
My appointment expires:
State of Washington
County of Kitsap
Ss.
On this /~~day of Qi~A i,20~0,personally appeared Cary Bozeman to
me known to be the Mayor of the City of Aremerton,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 he 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.
Wotary PtttfIlic in afid fbr the State qf Washington
--.m:«Y IS,2010;Residing at
p „'+SMy commission expires:
RECEIVED FOR FILING:
PAULA JOHNSTON,City Clerk
LEASE AGREEMENT -18
TENANT ACKNOWLEDGEMENT
STATE OF WASHINGTON )
)SS.
COUNTY OF KING )
I certify that I know or have satisfactory evidence that Louis Levy is the person who
appeared before me,and said person acknowledged that he signed this instrument,on oath stated
that he was authorized to execute the instrument and acknowledged it as the Deployment
Manager of New Cingular Wireless PCS,LLC,to be the free and voluntary act of such party for
the uses and purposes mentioned in the instrument.
DATED:
Notary Seal
Notaty PUbllc
State of WasntnEttan
I AAPAEL 0 SEVILLA
My Appointment Expltes Jan 21
I
I
I
2010
(Signatur
Rafael D Sevilla
(Legibly Print or Stamp Name of Notary)
Notary Public in and for the State of Washington
My appointment expires:~i I ~Z I ~r>I C>
SCHEDULE A
I I
~l.AYC1IT
~11
LEASE AGREEMENT -19
Return to:
City of Bremerton
Attn:Public Works &Vtilities
c/o Administrative Manager
3027 Olympus Drive
Bremerton,WA 98310-4799
Memorandum of Land Lease Agreement
Grantor:
Grantee:
Legal Description:
Assessor's Tax Parcel ID¹:
City of Bremerton,a municipal corporation duly
organized and existing under the laws of the State of
Washington
New Cingular Wireless PCS,LLC,a Delaware limited
liability company
THAT PORTION OF SECTION 29,TOWNSHIP 24
NORTH,RANGE 1 EAST,W.M.,(official legal
description as Exhibit "Ao)
292401-2-002-2008
Reference ¹(if applicable):BR02 Kitsap Lake/A
LEASE AGREEMENT -20
MEMORANDUM OF TELECOMMUNICATIONS FACILITIES LEASE AGREEMENT
THIS MEMORANDUM OF TELECOMMUNICATIONS FACILITIES LEASE
AGREEMENT evidences that a Land Lease Agreement ("Agreement")was entered into as of7.6>I (it<(5,~~,by and between the City of Bremerton ("Lessor"),and New Cingular
Wir/less PCS,LLC,a Delaware limited liability company ("Lessee"),for certain real property
located at 1301 Union Avenue,in the County of Kitsap State of Washington within the property
of Lessor which is described in Exhibit "A"attached hereto ("Legal Description"),together with
a right of access and to install and maintain utilities,for a term of twenty-five (25)years
commencing as provided for in the Agreement.
IN WITNESS WHEREOF,Lessor and Lessee have duly executed this Memorandum of
Telecommunications Facilities Lease Agreement as of the day and year last written below.
Name~We»Aovernn n
Title:hfWw~
Date:'7 C.—lb(
LESSEE:New Cingular Wireless PCS,LLC,
a Delaware limited liability company
By:
NameNhld '89M JNBWACÃd3C
Title:AAsll '8 SI001
Date:W /r la Cf/
LEASE AGREEMENT -21
LESSOR ACKNOWLEDGEMENT
State of Washington
County of Kitsap
In witness whereof I have hereunto
year first above written.
111'1111111111111Ipp
'OTAQI,;>'.
:MAY 15,2010:
-.~~.PIJELIC,p po:
ppp
11111111111
set my hand and affixed my official seal the day and
Notary Put|lie~anal for the State df'Washington
Residing at C~p1 pic ~)
My commission expires:W-jW JA
On this /Mls i day of Q~~l~~,200~,personally appeared Cary Bozeman
to me known to be the Mayor of Ke City'remerton,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.
LEASE AGREEMENT -22
LESSEE ACKNOWLEDGMENT
STATE OF
COUNTY OF
On this day of ,20,before me,the undersigned,a Notary
Public in and for the State of ,duly commissioned and sworn,personally appeared
to me known to be an authorized representative of ,the
limited partnership that executed the foregoing instrument,and acknowledged said instrument to
be the free and voluntary act and deed of ,for the uses and purposes
therein mentioned,and on oath stated that He is authorized to execute the said instrument.
IN WITNESS WHEREOF,I have hereunto set my hand and affixed my official seal the
day and year first above written.
Print or Type Name:
Notary Public in and for the State of
residing at
My appointment expires:
LEASE AGREEMENT -23
TENANT ACKNOWLEDGEMENT
STATE OF WASHINGTON )
)SS.
COUNTY OF KING )
I certify that I know or have satisfactory evidence that Louis Levy is the person who
appeared before me,and said person acknowledged that he signed this instrument,on oath stated
that he was authorized to execute the instrument and acknowledged it as the Deployment
Manager of New Cingular Wireless PCS,LLC,to be the free and voluntary act of such parly for
the uses and purposes mentioned in the instrument.
DATED:
Refuel D Sevilla
(Legibly Print or Stamp Name of Notary)
Notary Public in and for the State of Washington
My appointment expires:
EXHIBIT "A"
LEGAL DESCRIPTION
THAT PORTION OF SECTION 29,TOWNSHIP 24 NORTH,RANGE I EAST,W.M.,
KITSAP COUNTY,WASHINGTON DESCRIBED AS FOLLOWS:
COMMENCING AT THE NORTHEAST CORNER OF SAID SECTION 29;THENCE
SOUTH 78 39'4"WEST 3608.16 FEET TO THE TRUE POINT OF BEGINNING;THENCE
WEST 80.00 FEET;THENCE NORTH 70.00 FEET;THENCE EAST 80,00 FEET;THENCE
SOUTH 70.00 FEET TO THE TRUE POINT OF BEGINNING.
CONTAINING 5,600 SQUARE FEET MORE OR LESS
R:tLEGALtContractshPLBLJC WORKS>Cingular Telecommunications Lease.doc
LEASE AGREEMENT -24