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HomeMy WebLinkAbout4812 Contract Number: 4812 Vendor: USA MOBILITY WIRELESS INC Subject: Telecomm Facility - 1925 Cheryl Street Department: PW Admin File Class: LEG 12 -1 Begin Date: 3/1/2009 End Date: 12/31/2010 Review Date: Vault Date: 12/31/2012 Comments: Option to renew for additional 3 yr term up to total of 6 yrs Renewal notice must be received w /in 6 mo of expiration of 3 yr term i S ' . .. ..-_ •_ a�! .�t .` hi �; ^ fi 3 PUBLIC WORKS & UTILITIES Forest /Natural Resources Division ry Tel: (360) 473 -5354 Fax: (360) 473 -5844 100 Oyster Bay Ave. N Bremerton, 98312 Email: bill.mckinney@ci.bremertonwa.us Ms. Sabrina McCreary Lease Administrator USA Mobility Wireless, Inc. Technology Administration 3000 Technology Drive, Suite 400 Plano, TX 75074 Re: USMO Site ID WA0100 (1925 Cheryl Street Communication Site) Dear Ms. McCreary: Pursuant to our recent telephone conversation, attached is the correspondence acknowledging USA Mobility's desire to terminate the above lease on December 31, 2010. It is my understanding that your equipment has been removed from the site. I believe your locks are on the building doors. Is it possible to get a key or an access code for the key box attached to the outer fence so we can do a final inspection of the buildings? Thank you for your cooperation. Sincerely, M Bill McKinney Forestry/Natural Resources Manager C: Vincent Akhimie, Director of Public Works & Utilities Carol Etgen, City Clerk Judie Carlson, Accounts Receivable fig+ U AM B I L I TY'm ONE SOURCE FOR WIRELESS Technology Administration Phone: (972) 801 -0131 3000 Technology Drive, Suite 400 Fax: (866) 432 -0459 Plano, Texas 75074 Email: sabrina.mccreary@usamobility.com Date: June 11, 2010 Sent via: UPS Ground tracking # 1Z7E88V00394925718 City of Bremerton 345 Sixth Street, Suite 600 Bremerton, WA 98337 Attn: Judie Carlson; In line with my previous correspondence with you, please allow this letter to serve as formal written notice that USA Mobility Wireless, Inc. intends to terminate the Telecommunications Facilities Lease Agreement, dated March 1, 2009, by and between the City of Bremerton and USA Mobility Wireless, Inc. Pursuant to Section 9B of the Agreement, rent will continue through, and this lease will terminate on December 31, 2010. Site Address: 1925 Cheryl Street, Bremerton, WA 98310 (47 -36 -5 / 122 -37 -1) USMO Site Name: Bremerton CG Vendor Site Name: N/A USMO Site ID: WA0100 Vendor Site ID: N/A USMO Lease ID: 224320 Vendor Lease ID: 8499 All Equipment to be Removed Please sign this letter acknowledging your receipt and approval, while agreeing that there are no sums due and owing by either party except future rents during this notice period. After signing, please email it to my attention at: sinedtermlet(,usamobility.com or fax to 888 - 833 -7112. If you have any questions or concerns, please contact me, Sabrina McCreary, at (972) 801 -0131. I thank you in advance for your attention to this matter. Sabrina McCreaa Lease Administrator Printed Name Title Signature Rob Robertson Director of Site Leasing Printed Name Title Signature Received and acknowledged by: I, ill /K►�I� inne.� F 'ocestcy�N47ura( Q e,�, Printed Name Title MA*iP*3er Signature Contract Number: Vendor: Subject: Department: File Class: Begin Date: End Date: Review Date: Vault Date: Comments: 4812 USA MOBILITY WIRELESS INC Telecomm Facility - 1925 Cheryl Street PW Admin LEG 16-3 03/01/2009 04/30/2012 10/1/2011 Option to renew for additional 3 yr term up to total of 6 yrs - Renewal notice must be received w/in 6 mo of expiration of 3 yr term 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 (hereinafter referred to as "City") and USA Mobility Wireless, Inc. (hereinafter referred to as "Lessee"). WIT N E SSE T H: 1. PREMISES. The City leases to the Lessee real property located at 1926 Cheryl St., Bremerton, WA 98310 for housing, installing, constructing, operating and maintaining certain telecommunications facilities, legally described and/or depicted in Schedule A ("Premises"). Lessee accepts the Premises 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: "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 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; "T elecommunications 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 after obtaining required pennits and as approved by City on the Site Plan. City shall provide Lessee access to the Premises at all times adequate to service the Premises and the telecommunication facilities at all times during this Lease. Lessee agrees to provide the City with a scheduling 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-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. Co-locates on the tower will be approved by the City on a not-to-interfere basis with current tower occupants. City will receive 100% of co-locate revenues. LEASE AGREEMENT - 2 5. TERM OF LEASE. This Lease shall be valid for a term of three year(s) commencing March 1,2009 and terminating April 31, 2012. Lessee shall have the option of renewing this lease for additional three (3) year periods up to a total of six years. Notice of renewal must be received by the City within six (6) months of expiration of each three 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 of 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. 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. Lessee understands that if its use interferes with a prior tenant, and the interference problem cannot be cured, this Lease may be tenninated by the City pursuant to Sections 34 and 35. 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 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 buildings, 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, ifnot 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 from 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 ofthis 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. This Lease is subject to the City's right, which is expressly reserved, to annually fix a fair and reasonable compensation to be paid for the rights granted to the Lessee; starting on the Commencement Date and on the first day of each month thereafter during the term ofthe Lease, Lessee shall pay rent at a rate of five hundred No/lOO Dollars ($500.00) 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 after the due date shall include a late payment penalty of2% 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 LEASE AGREEMENT - 4 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. C. Rent Adjustment. On the fourth annual anniversary date of the Commencement Date of the Lease ("Rent Adjustment Date") the City may adjust the rent due under the Lease in accordance with the following procedure: If the City chooses to adjust the rent, the Rent for the remainder of the Lease term commencing on the Rent Adjustment Date shall be the Pair Market Rental Value. The term "Pair Market Rental Value" shall be the rental rate that comparable space for a wireless telecommunications facility (in terms of quality oflocation for a similar facility in a similar location) would command on the open market at the time of Rent Adjustment Date. Such amount shall be determined jointly by the City and Lessee through good faith negotiations. If the City determines that a rent adjustment is warranted, it shall so notifY Lessee in writing no earlier than one hundred eighty (180) days prior to the Rent Adjustment Date and no later than one hundred twenty (120) days prior to such date of the rental amount it proposes to commence on that date. Lessee shall respond in writing no later than thirty (30) days from receipt ofthe City's notice by accepting the proposed rent amount or if it determines that the proposed rent is unsatisfactory, it shall propose a suitable rental amount. The City and Lessee shall thereafter make a good faith and diligent effort to agree on the rent adjustment amount no later than thirty (30) days after receipt by the City of Lessee's proposed rent adjustment. D. 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 information required by the City of Bremerton; LEASE AGREEMENT - 5 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; 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. 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. 16. INTERFEREN CE WITH THE PUBLI C 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. 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 exclusive right to inspect the Lessee's telecommunications facilities and equipment at any LEASE AGREEMENT - 6 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. 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 (1 &0) 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: A. The construction, repair, maintenance or installation of any City or other public improvement in or upon the public ways; and B. The operations of the City or other governmental entity in or upon the public ways. Additional time for removal or relocation may be granted at the discretion of the City which extension shall not be umeasonably 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 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 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 ifleft in place 30 days after expiration or termination of the Lease; a Lease; C. If the system or facility was constructed or installed without the prior grant of LEASE AGREEMENT - 7 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 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 FACILITIES. 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 ofthe City's actions under this Section. 23. DAMAGE TO FACILITIES. 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. 24. 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, .or when Lessee, or any person acting 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 LEASE AGREEMENT - 8 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 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, to 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 shall agree upon additional rental fee for sub-lessee hook- ups pursuant to Section 10.D. The City encourages co-location on existing telecommunications facilities and to that end will not unreasonably withhold approval of sub-leases. As stated in item 4, the City will receive 100% of all co-locate revenues. 28. UTILITIES. Electricity, HV AC 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: (1) $2,000,000.00 for bodily injury or death to each person; (2) $2,000,000.00 for property damage resulting from anyone accident; and (3) $2,000,000.00 for all other types ofliability. 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; LEASE AGREEMENT - 10 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 oftime 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 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 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 ofthe Lessee's insurance and shall not contribute with it. The City shall be provided thirty (30) days advance notice of cancellation of any coverage required in 30.A. above; F. 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 policies 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 destructjon js caused by the wjJ}ful and malicjous action of the Cjty, jts 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% of the estjmated cost of constructing LEASE AGREEMENT - 11 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. 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; (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' 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. 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 ofthe Lessee, by operation oflaw 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. LEASE AGREEMENT - 12 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: (1) Complete information setting forth the nature, terms and condition of the proposed transfer or assignment; (2) All information required of a lease applicant with respect to the proposed transferee or assignee; (3) Any other information reasonably required by the City; and (4) An application fee. 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. 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 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 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 AGREEMENT - 13 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: A. Lessee's construction or operation in the City orin 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; G. City property; Abandonment of telecommunications facilities in the public ways or upon H. 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 30 days to cure the violation. LEASE AGREEMENT - 14 37. STANDARDS FOR REVOCATION OR LESSER SANCTIONS. Ifthe City Council determines 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 and remedies, to pursue other remedies and to recover damages and costs incurred by the City by reason ofthe Lessee's failure to comply. 38. NOTICE OF ENTRY ON PRIVATE PROPERTY. Ifdirected 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 by the laws ofthe State of Washington. LEASE AGREEMENT - 15 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 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: LESSOR: City of Bremerton Attn: Public Works & Utilities Administrative Manager 100 Oyster Bay Avenue N. Bremerton, W A 983 12 LESSEE: USA Mobility Wireless, Inc. A#n " --re..e.J\V\O \0',,\ t1drfl'''\ ~tratll\.. Attn: Misty Jeffcoat 3000 Technology Dr., Ste. 400 PIano, TX 75074 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 above address. 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 ofNaturaI Resources regulates forest land activities and provides daily IFPLs vial telephone and the internet. LEASE AGREEMENT - 16 43. NONDISCRIMINA nON. 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. LESSEE Date: ~\Qw.:J-- Its: VP. Technology Administration Date: (~~9 CI'~~;ERTO CARY BOZEMAN, Mayor APPROVED AS TO FORM: II II LEASE AGREEMENT - 17 State of -r tx a ~ Countyof b\\a~ ) ) ) On this /) -<J day of rrh '\ ( /h ' , 20 0 personally appeared WI' j. to me kn~ to be the ~ Itth Hd.(Y it oftne " W, t:. ':::l J:, a e 1 Q 1.0 a ~ . corporation, that executed the within and oregoing instrument, and acknowledged said instrument to be the free and voluntary act and deed of said corporation, for the uses and purposes therein mentioned, and on oath stated that he/she was authorized to execute said instrument. ss. In witness whereof! have hereunto set my hand and affixed my official seal the day and year first above written. '\'~~""'" /~~'\...~\ ...*. "..- \~... ..~J ;'~:~'l~~" MISTY E. JEFFCOAT MY COMMISSION EXPIRES October 16, 2010 D- /D/lfR //0 , I State of Washington ) ) ss. County of Kit sap ) On this ( 10>'tJday of ~4 A.t...(.! , 20 /) if ,personally appeared Cary Bozeman to me known to be the Mayor oft 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 he was authorized to execute said instrument. In witness wh~(~L~~~~h.eJ;eunto set my hand and affixed my official seal the day and year first above wri~~~. . . . . .. .-:1--~'-:, j ,'-'OT'All':'.L,< ~ ~ · \' ~" CJn ~ f : MAY 15 : ~ /~) /VI A , ~ ([J : I 2010 : ~g Notary Putic' and or the State ""Washington ~~;" PUBLIC ..~O! Residing at \.fo.......... .~CZ,$" My commission expires: '-I f::' WAS"';" '\ \\\ ""111 111\1\\ EIVE): IJ>~1:ING:"1I1111 CARO ;;raBkE~ R:\LEG \Contracts\FORMS\Telecommunication Facilities Lease.fonn.doc LEASE AGREEMENT - 18 SCHEDULE A USA MOBILITY WIRELESS FOR 1925 E. CHERYL STREET BREMERTON. WA RX1 e PageNet Antenna Positions N Site RX2 165' PageNet RX1 ... PageNet TX 1 135' 1 West Leg L l :'j i.1 'i : 1 ~j 1 :J AGL PageNet RX2 ,'j : I ; I I : I ,I ,.1 :i ; I ~ 1 J Existing Antennas 165' South Leg ... ... I 183'