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HomeMy WebLinkAbout4224 +--------------------------------------------------------------------------+ TBrowse: Next Previous First Last Update Delete Restart X - Exit T TRetrieve the Next record + +Found: 1 Record(s) MAINTAIN Contract Transactions Contract Number 4224 .: .,.Vendor Name .:Subject : .Department : :Status Code CENCOM - KITSAP CO EMERGENCY COMMUNICATIONS ADMIN SVCS TEL FACILITIES Insurance Type Amount Amount Begin Date End Date Review Date $12000.00 t 03/01/2002 09/17/2003 -. 02/15/2005 -- -.- :J.. -,- + ::I:: T T T T T +--------------------------------------------------------------------------+ Insurance Total Insurance Review Date $ 0 . 0 0 OJ" T T .I" Comments HOLD HARMLESS/OPTION TO RENEW - 4 SUCCESSIVE 5 YR TERMS TERMINATED 9/17/2003 VAULT 01/01/2005 +--------------------------------------------------------------------------+ "Enter Search Criteria, Press Esc Key to Transmit t '~ress Del Key to Terminate Delete Mode . CHANGE Contract Transactions -. Contract Number 4224 ,- '-Vendor Name "Subject , -Department '-Status Code " Comments CENCOM - KITSAP CO EMERGENCY COMMUNICATIONS ADMIN SVCS TEL -- " " " " $12000.00 H 03/01/2002 " 09/17/2003 " 02/15/2005 " -- n " $0.00 " .. " FACILITIES Insurance Type Amount Amount Begin Date End Date Review Date Insurance Total Insurance Review Date HOLD HARMLESS/OPTION TO RENEW - 4 SUCCESSIVE 5 YR TERMS " TERMINATED 9/17/2003 VAULT 01/01/2005 " +--------------------------------------------------------------------------+ " +Browse: Next Previous First Last Update Delete Restart X - Exit + +Retrieve the Next record + +Found: 10 Record(s) MAINTAIN Contract Transactions + + Contract Number 4224 + + + +Vendor Name CENCOM - KITSAP CO + +Subject EMERGENCY COMMUNICATIONS FACILITIES + +Department ADMIN SVCS + +Status Code TEL + + Amount $12000.00 + + Begin Date 03/01/2002 + + Insurance End Date 02/28/2012 + + Type Amount Review Date 08/01/2011 + + + + + + + + Insurance Total $0.00 + + Insurance Review Date + + + + Comments HOLD }{ARMLESS/OPTION TO RENEW - 4 SUCCESSIVE 5 YR TERMS + + W/60-180 DAY WRITTEN NOTICE/CPI CLAUSE + + + EMERGENCY COMMUNICATIONS 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 Kitsap County Central Communication (CENCOM), a separate legal governmental entity created through Interlocal Agreements between the various jurisdictions within Kitsap County pursuant to RCW 39.34 (hereinafter referred to as ~'CENCOM"). WITNESSETH: 1. PREMISES. The City. hereby leases to CENCOM real property located on Gold Mountain for housing, installing, constructing, operating and maintaining a 911 emergency communications facility, said real property and facilities being more specifically described and, or depicted in Schedule A. attached hereto and specifically incorporated herein (hereinafter referred to as Premises). CENCOM agrees to accept such real property for such purpose, subject to the considerations, terms and conditions specified in this Emergency Communications Facilities Lease A~eement (hereinafter referred to as "Lease") 2. DEFINITIONS. For the purpose of this Lease, and the interpretation and enforcement thereof, the following words and phrases shall have the following meanings, unless the context of the sentence in which they are used shall indicate otherwise: "Emergency communications facility" means the plant, equipment and property, including but not limited to, cables, wires, conduits, ducts, pedestals, antennae, towers, electronics, equipment storage structures or shelters, and other appurtenances used or to be used to transmit, receive, distribute, provide or house emergency communications (9I 1) services; "Person" means and includes governmental agencies, 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 fight of way for motor vehicle travel under the jurisdiction and control of the City which has been acquired, established, dedicated or devoted to highway purposes; "Public way" means and includes all public streets and utility easements, as those terms are defined herein, now or hereafter o;vned by the City, but only to the extent of the City's fight, title, interest or authority to ~ant a permit or lease to occupy and use such streets and easements t'or emergency communications facility: September I t. 2001 "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 commercial for profit telecommunications services; "Telecommunications provider" means and includes every person who provides commercial for profit telecommunications services over telecommunications facilities without any ownership or management control of the emergency communications facility; "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 emergency communication facility. 3. USES AND PURPOSES. CENCOM shall have the use and occupancy of the Premises for the purpose of transmission and reception of emergency communication and signals in any and all frequencies using real property and emergency communications facility described in Schedule A. CENCOM shall have the right, at its expense, to erect and maintain on the Premises improvements, personal property and facilities, as described in Schedule A and pursuant to successful completion of all requisite permit processes. City shall provide CENCOM unlimited ingress, egress, and twenty-four hour a day, seven days a week access over the property to the Premises adequate to service the Premises and the emergency communications facility at all times during this Lease except CE15/COM shall agree to sign a mutual road maintenance agreement to be provided by City along with and identifying all other users of access roads not included in the public road system and CENCOM shall agree to share equally the annual charge of maintaining the access roads not to exceed Three Hundred and No/100 Dollars ($300.00) dependant upon actual road maintenance expenditure by City within any given year. Which amount shall be increased annually in January based upon the CPI for all urban consumers, Seattle-Tacoma-Bremerton index (1982-84=I00) as published by the Bureau of Labor Statistics for the last month for which statistics are posted. 4. LEASE APPLICATION. Any person that desires to solicit the City's approval of a Lease shall file a lease proposal with the City, which shall include the following: A. The identity and legal status of the applicant, including any affiliates; B. The name. address, telephone number and title of the officer, agent or employee responsible tbr the accuracy of the lease application statement; CENCOM September I l, 2001 Page 2 C. A description of the service that the applicant intends to offer or provide, or is currently offering or providing, to persons, firms, businesses or institutions within the City, or to those outside the City limits using facilities located within the City; D. A description of the emergency communications facility or other equipment proposed to be located upon City property; E. A description of the City property upon which the applicant proposes to locate an emergency communications facility or other equipment; F. Signed set of owner's drawings, preliminary plans and specifications in sufficient detail to identify: (1) Manufacturer standards, punch list on workmanship inspections for future sign-off by City inspectors for all the emergency communications facility being proposed by CENCOM. (2) The location(s) of existing emergency communications facility or other equipment upon the City property, whether publicly or privately owned. (3) The location and source of electric and other utilities required for the installation and operation of the proposed facilities. G. Accurate scale conceptual drawings and diagrams of sufficient specificity to analyze the aesthetic impacts of the proposed emergency communications facility or other equipment; H. Whether the applicant intends to provide cable service, video dialtone service or other video programming service, and sufficient information to determine whether such service is subject to cable franchising; L An accurate map showing the location of any existing telecommunications facilities in the City that applicant intends to use or lease; J. A description of the services or facilities that the applicant will offer or make available to the City and other public, educational and governmental institutions; K. Evidence that the applicant has explored possible co-location sites on existing tower sites on City or private property. L. Such other and further information as may be requested by the City; and CENCOM - September 11, 2001 Page 3 M. A non-refundable application tee of Five Hundred and No/100 Dollars (5500.00). 5. NON-EXCLUSIVE LEASE. This Lease is nonexclusive and does not preclude the City from granting a similar lease, right, license, franchise, etc. to other carriers, providers or other persons tbr telecommunications or any other purpose. 6. IER3'I OF LEASE. This Lease shall be valid for a term of ten (10) year(s} commencing within sixty (60) days of receipt of all permits or March 1, 2002, whichever date occurs first. 7. OPTION TO RENEW. The City agrees to offer CENCOM four (4) successive five (5) year options to renew this Lease Agreement contingent upon CENCOM remaining in full compliance with the terms and conditions of this Agreement and subject to renegotiation of compensation. CENCOM and the City agree to mutually perform a market survey to establish renewal rates. To execute an option for renewal, CENCOM not more than 180 days and not less than 60 days prior to the expiration of the term, shall give wr/tten notice to the City that CENCOM is exercising its option for an additional five (5) year term. 8. COMPENSATION TO THE CITY. A. Starting on the Commencement Date and on the first day of each month thereafter during the term of the Lease, CENCOM shall pay a land lease rent at a rate of One Thousand and No/100 Dollars ($1,000.00) per month, prorated for any partial months. 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-Bremerton 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. Any payments received after the due date shall include a late payment penalty of 2% of the annual rental fee for each day or part thereof past the due date. B. Additional Consideration. 1. As a function of CENCOM's separate Interlocal Agreement with City, City's Police and Fire Department public safety radio dispatch channel equipment owned by CENCOM will be moved to the new emergency communications facility at CENCOM's expense. In addition, CENCOM shall move and attach the City Public Works Department radio communications equipment to the CENCOM emergency communications facility provided City first obtains CENCOM's prior written consent for such attachment. CENCOM's approval for said attachment shall be contingent upon determination that such transmission shall not result in any impairment or diminution in the quality of CENCOM's service. Further, said approval shall be given only after CENCOM has reviewed and approved City's engineering plans for said CENCOM September 11, 2001 Page 4 antenna attachments in a location specified by CENCOM. Approval shall not be unreasonably withheld. Upon written approval by CENCOM, said attachments shall be installed in accordance with CENCOM'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 CENCOM reserves the right to relocate City's antennas at any time(s) to accommodate modifications required for CENCOM's future system requirements, provided such relocation shall provide equivalent quality of service after such relocation. All initial installation of equipment for the City and any future relocation requested by CENCOM shall be at CENCOM's expense. 2. During the initial term of the agreement and pursuant to Section 10 CENCOM shall pay to the City 100% of any and ail sub-lease rent received from commercial for profit telecommunications providers for co-location on CENCOM's emergency communications facility. The combined total of commercial tenant sub-lease and land lease revenue to City will be capped at $20,000 per year subject to the aforementioned annual CPI adjustor CENCOM will have unrestricted use of the tower space to accommodate service to its jurisdictional client agencies as it sees fit. As such, CENCOM reserves the right to provide space to organizations or agencies that provide a significant in-kind exchange or cost avoidance for the benefit of City and other CENCOM client agencies in the construction of the emergency communications facility and/or its ongoing maintenance. Such use shall not interfere with or otherwise restrict the City's use of its equipment. City approval, which will not be unreasonably withheld, shall be required for all in-kind use. 9. UTILITIES. Electricity, HVAC and telephone service, or other utilities are to be provided to the Premises at CENCOM's expense and as outlined in Schedule A. City shall cooperate with CENCOM in obtaining utility service. 10. LEASED CAPACITY .4aND CO-LOCATION. CENCOM shall have the right, to sublet the premises consistent with this Lease; provided: A. CENCOM shall furnish the City with a copy of any such lease or a~eement between CENCOM and its sub-lessee; B. The sub-lessee has complied, to the extent applicable, with the requirements contained in this Lease. All subleases shall contain a provision that specifically requires compliance regarding non-interference with other lessee's and the City's equipment and further requiring them to indemnify and hold the City harmless from any damages caused by the sub-lessee's actions. C. CENCOM owns and/or controls the emergency communications tower facility located on City property; The City encourages co-location on existing telecommunications facilities and to that end will not unreasonably withhold approval of sub-leases. CENCONI September !/,2001 Page 5 11. IMPROVEMENTS. During the term of this Lease if CENCOM wishes to expand the tower size. CENCOM will submit an updated application pursuant to Section 4, delineating any changes to the initial application. Compensation for the proposed expansion will be negotiated upon approval of the application. 12. RIGHTS GIL~NTED. This Lease does not convey any right, title or interest in the City property, but shall be deemed to convey only the right to use and occupy the City property for the limited purposes and term stated in the Lease. 13. CANCELLATION OF LEASE BY CENCOM. A. All Leases are contingent upon CENCOM obtaining ail necessary permits, approvals and licenses for the proposed facilities. In the event that CENCOM 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. CENCOM 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, CENCOM shall have the right to cancel the Lease upon 120 days written notice to the City. However, no prepaid rent shall be refundable. 14. INTERFERENCE WITH OTHER USERS. CENCOM acknowledges that the City may enter into leases with other tenants for their equipment and telecommunications facilities for the purposes of transmitting and receiving telecoramunication signals from surrounding City property. The City will include noninterference clauses in all future telecommunication leases. The City, however, is not in any way responsible or liable for any interference with CENCOM's use of the City property, which may be caused by the use and operation of any other tenant's equipment or co-locator's equipment, even if caused by new technology. In the event that any successive tenant's activities interfere with CENCOM's use of the City property, said tenant and CENCOM shall work together to cure electronic interference problems in accordance with applicable Federal Communications Commission (FCC) rules and regulations, and standards of the Western Washington Cooperative Interference Committee (WWCIC) as described in Section 15 below. Continued interference shall be grounds for revocation pursuant to section 31. In addition, CENCOM agrees to eliminate any radio or television interference caused to City-owned facilities or surrounding residences at CENCOM's own expense and without installation of extra filters on City-owned equipment. 15. TECHNICAL STANDARDS. CENCOM shall operate its emergency communications facility in complete compliance with rules and regulations of the Federal Communications Commission. CENCOM shall operate its equipment in compliance with the applicable standards for this site as established by the Western Washington Cooperative Interference Committee (WWCIC) Engineering Standard #6 Rev. C (02-97) for Radio Transmitting and Receiving Devices and FM Broadcast, hereinafter incorporating future amendments. ('ENCOM September ', [, 2001 Page ~ 16. OWNERSHIP .AND REMOVAL OF IMPROVEMENTS. All buildings, landscaping and all other improvements, except telecommunications equipment, the tower and equipment shelters, 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 a~er termination of the Lease, such removal shall be accompiished at the sole expense of CENCOM and completed within 30 days after receiving notice from the City requiring removal of the improvements. Additional time may be granted upon the discretion of the City which approval shall not be unreasonably withheld. In the event that telecommunications facilities or other equipment are left upon City property after expiration or termination of the lease, they shall, at the City's option, become the property of the City if not removed by CENCOM upon 30 days written notice from the City. If CENCOM faiIs to remove the property upon request by the City, CENCOM agrees to reimburse the City for any and all removal costs incurred by the City. 17. RENEWAL APPLICATION. If CENCOM desires to renew its Lease under this Article it shall, not more than one hundred eighty (180) 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. ,&ny material changes since the last application filed pursuant to Section 4; B. Any additional information required based upon elements of the current Lease agreement between the City and CENCOM; C. Ali deposits or charges required pursuant to City ordinances; D. A non-refundable application fee in the amount of Five Hundred and No/100 Dollars ($500.00), which may be waived by the City. The City reserves the right to extend the review period for the renewal application if additional information is required. 18. OBLIGATION TO CURE AS A CONDITION OF RENEWAL. No Lease shaIl be renewed until any ongoing violations or defaults in CENCOM's performance of the Lease have been cured, or a plan detailing the corrective action to be taken by CENCOM has been approved by the City, 19. POLICE POWER. In accepting this Lease, CENCOM 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. 20. REPAIR AND EMERGENCY WORI~ In the event of an unexpected repair or emergency, CENCOM may commence such repair and emergency response work as required under the circumstances, provided CENCOM shall notify the City as promptly as reasonably CENCOM - September i I, 200I Page 7 possible, before such repair or emergency work commences or as soon thereafter as possible if advance notice is not practicable. 21. MAINTENANCE OF LEASE FACILITIES. CENCOM shall maintain its facilities in good and safe condition and in a manner that complies with all applicable federal, state and local requirements. CENCOM 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. CENCOM shall not restrict site access to City. City shall have the exclusive fight to inspect CENCOM's telecommunications facilities and equipment at any time during the term of this Lease to ensure compliance with the terms and conditions herein; Provt'ded. however. CENCOM has the fight to be present at all inspections of CENCOM's telecommunications facilities and equipment, and City shall give CENCOM at least 24 hours prior notice of such intent. 22. SIGNAGE. CENCOM shall display a current sign on telecommunication facilities identifying CENCOM, address and a 24-hour phone number. 23. REMOVAL OF UNAUTHORIZED FACILITIES. Within thirty (30) days following written notice from the City, CENCOM or any person who owns, controls or maintains on behalf of CENCOM any unauthorized telecommunications system, facility or related appurtenances within the public ways or real property of the City may, remove such facilities or appurtenances from the public ways or property of the City. A telecommunications system or facility is unauthorized and subject to removal in the following circumstances: A. Upon expiration or termination of CENCOM'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 CENCOM shall be deemed abandoned if left in place 30 days after expiration or termination of the Lease; C. If the system or facility ~vas constructed or installed without the prior grant of a Lease; D. If the system or facility was constructed or installed without the prior issuance of a required City permits; and E. If the system or facility was constructed or installed at a location not permitted by the Lease. Provided, however, that the City may, in its sole discretion, allow CENCOM, 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 CENCOM's facilities must be first approved by the Public Works and Utilities CENCOM - September i/, 200t Page 8 Director, and all necessa~ 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, transfemng to the City the ownership of such property in which event, CENCOM shall have no further obligations or liability with respect to such facilities. The provisions of this Section shall survive the expiration, revocation, or termination of the Lease granted hereunder. If the City does not authorize abandonment and CENCOM fails to remove such facilities within thirty (30) days following notice, CENCOM agrees to reimburse the City for any and all costs incurred by the City for facilities removal. 24. DAMAGE TO FACILITIES. Unless directly and solely caused by the negligence or 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. 25. RESTORATION OF PUBLIC WAYS, OTHER WAYS .lxND CITY PROPERTY. A. When CENCOM, or any person acting on its behalf, does any work in or affecting any public ways, other ways or City property, it shall, at its own expense, promptly remove any obstructions therefrom and restore such ways or property to City construction standards as adopted before the work was undertaken, unless otherwise directed by the City. CENCOM shall obtain all requisite permits for such work. B. If weather or other conditions do not permit the complete restoration required by this Section, CENCOM shall temporarily restore the affected ways or property. Such temporary restoration shall be at CENCOM's sole expense and CENCOM shall promptly undertake and complete the required permanent restoration when the weather or other conditions no longer prevent such permanent restoration. C. CENCOM 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. 26. FACILITIES MAPS. CENCOM shall provide the City with a map or maps accurately reflecting the horizontal and vertical location and configuration of all of its emergency communications facility within the public ways and upon City property. CENCOM shall provide the City with updated maps upon request by the City. CENCOM - September I 1. 2001 Page '~ 27. BOOKS, RECORDS AND MAPS. All books, records, maps and other documents, maintained by CENCOM with respect to its emergency communications facility within the public ways and upon City property shall be made available for inspection by the City at reasonable times and intetwals; Provided. however, that nothing in this Section shall be construed to require CENCOM to violate state or federal law regarding subscriber privacy, nor shall this Section be construed to require CENCOM to disclose proprietary or confidential information without adequate safeguards for its confidential or proprietary nature. 28. GENEIL~L INDEMNIFICATION. CENCOM 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 CENCOM's own employees to which CENCOM 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 ar/sen directly or indirectly out of or in consequence of the performance of this Agreement, whether or not injuries to persons or damage to property is due to the negligence of CENCOM, its agents, employees, representatives Or assigns. This provision shall be inapplicable to the extent such damage or injury is caused by the sole negligence of the City, its officers, employees, agents or volunteers. This provision waiving immunity for claims arising out of Title 51 RCW was specifically negotiated by the parties. CENCOM releases and waives any and all claims against the City, its officers, employees, agents, and volunteers for damage to or destruction of CENCOM's facilities except to the extent any such damage or destruction is caused by the sole negligence or willful and malicious action of the City, its officers, employees, agents, or volunteers. 29. ASSIGNMENTS OR TRA~'~SFERS 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 CENCOM, by operation of law or otherwise, without the prior written consent of the City. A requested transfer to another Governmental entity shall be conditioned upon their agreement to be bound by the terms and conditions of this Lease Agreement and that the assignee is determined by the City to be financially and technically able to operate the system and comply with the Lease Agreement terms for the agreements duration. A. No request for Lease assignment or transfer in any manner shall be made within twelve (12) months a~er the initial ~ant of the Lease, unless otherwise provided. B. Absent extraordinary and unforeseeable circumstances, no system or integral part of a system shall be assigned or transferred before construction of the telecommunications facility has been completed. C. CENCOM and the proposed assignee or transferee of the system shall provide and certify the folloxving information to the City not less than sixty (60) days prior to the proposed date of transfer: CENCOM - September I I. 2001 (1) Complete information setting forth the nature, terms and condition of the proposed transfer or assignment; (2) All intbrmation required of a lease applicant pursuant to Section 4 ;vith respect to the proposed transferee or assignee; (3) )my other information reasonably required by the City; and (4) .An application fee set by Section 4. 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, CENCOM 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 final 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. 30. 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 CENCOM, of the o~vnership or working control of the emergency communications facility, of the ownership or working control of affiliated entities having ownership or working control of CENCOM or of a emergency communications facility, or of control of the capacity or bandwidth of CENCOM's emergency communications system, facilities or substantial parts thereof, shall be considered an assignment or transfer requiring City approval pursuant to Section 29 hereof. Transactions between affiliated entities are not exempt from City approval. CENCOM shall promptly notify the City prior to any proposed change in, or transfer of, or acquisition by any other party of control of CENCOM's company. Every change, transfer, or acquisition of control of CENCOM'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 CENCOM to another entity controlling, controlled by, or under common control with CENCOM. 31. 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: CENCOM September i '., 2001 Page I t A. CENCOM's construction or operation in the City or in the public ways of the City or upon City property without proper City authorization; B. CENCOM's construction or operation at an unauthorized location; C. Unauthorized substantial transfer of control of CENCOM; D. Unauthorized assignment of Lease; E. Unauthorized sale, assignment or transfer of CENCOM's Lease, assets, or a substantial interest therein; F. Misrepresentation by or on behalf of CENCOM in any application or written statement upon which the City relies in making the decision to grant, review or amend said Lease; . G. Abandonment of telecommunications facilities in the public ways or upon City property; H. Failure to pay taxes, compensation, fees or costs when and as due the City; I. Insolvency or bankruptcy of CENCOM; J. Failure to construct or operate in accordance with approved permits; and K. Interference with the equipment of other Lessee's or the City's equipment. L. Violation of any material provision or term of this lease. 32. NOTICE AND DUTY TO CURE. In the event that the City believes that grounds exist for revocation of this Lease, CENCOM shall be given written notice of the apparent violation, default, or noncompliance, providing a short and concise statement of the nature and general facts of the violation or noncompliance, and providing CENCOM a reasonable period of time not exceeding 30 days to furnish evidence: A. That corrective action has been, or is being actively and expeditiously pursued, to remedy the violation, default or noncompliance; B. That rebuts the alleged violation, default or noncompliance; and C. That it would be in the public interest to impose some penalty or sanction less than revocation. 33. HEARING. In the event that CENCOM fails to provide evidence reasonably satisfactory to the City as provided in Section 32 hereof, the City shall refer the apparent CENCOM - September 11, 2001 Page I2 violation, default or non-compliance to the City Council or Hearings Examiner. The City Council or Heatings Examiner shall provide the Lessee with notice and a reasonable opportunity to be heard concerning the matter. 34. STANDARDS FOR REVOCATION OR LESSER SANCTIONS. If the City Council determines that CENCOM willfully violated or failed to comply with any of the provisions of this Lease or through willful misconduct or gross negligence failed to heed or comply with any notice given CENCOM by the City under the provisions of this Lease, then CENCOM shall, at the election of the City Council and upon thirty (30) days prior written notice by City, forfeit all rights conferred hereunder and the Lease may be revoked or annulled by the City Council. The City Council may elect, in lieu of the above and without any prejudice to any of its other legal rights and remedies, to pursue other remedies, including obtaining an order from the Superior Court having jurisdiction compelling CENCOM to comply with the provisions of this Lease, and to recover damages and costs incurred by the City by reason of CENCOM's failure to comply. The City Council shall utilize the following factors in analyzing the nature, circumstances, extent, and ~avity of the violation and in making its determination under this Section: A. Whether the misconduct was egregious; B. Whether substantial harm resulted; C. Whether the violation was intentional; D. Whether there is a history of prior violations of the same or other requirements; E. Whether there is a history of overall compliance; and F. Whether the violation was voluntarily disclosed, admitted or cured. 35. 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 CENCOM. A door hanger may be used to comply with the notice and posting requirements of this Section. CENCOM 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 CENCOM to unlawfully enter or construct improvements upon the property or premises of another. 36. SAFETY REQUIREMENTS. CENCOM, in accordance with applicable federal, state, and local safety requirements shall, at all times, employ ordinary care and shall CENCOM - September I 1, 2001 Page 13 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 emergency communications facility of CENCOM 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 CENCOM, establish a reasonable time for CENCOM 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 CENCOM. 37. LIENS. CENCOM 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. 38. MISCELLANEOUS. A. This agreement shall be governed by the laws of the State of Washington. 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: CENCOM: City of Bremerton Irdtsap County Central Communications Administrative Services Director Director CENCOM September 11,2001 Page 14 239 Fourth Street 1720 Warren Avenue Bremerton, WA 98337 Bremerton, WA 98337 39. NONDISCRIMINATION. Lessee shalI 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. Datedthis _/-~. ~ dayof KITSAP COUNTY BOARD OF COMMISSIONERS TIM BOTKIN, Chairperson ATTEST: - K~q'DERSON, Clerk of the Board CITY OF BREMERTON ~~~DEPARTMENTAL APPROVAL: A~,~ Kathieen Mc Loren Corings ' Administrative Services D~rector City Attorney / CENCOM - September I I, 2001 Page 15 State of Washington SS. County of Kitsap On this ~.a~ day of~4~.,~, 20.O_/___, personally appeared Lynn S. Horton to me known to be the Mayor ot~ the City of Bremerton, a municipal-_corporation, that executed the within and foregoing instrument, and acknowledged said instrument to be the flee and voluntary act and deed of said municipal corporation, for the uses and purposes therein mentioned, and on oath stated that she was authorized to execute said instrument. In witness whereof I have hereunto set my hand and affixed my official seal the day and year first above written. Notary l~u~ic~fi arid -for the Sqate of Washington Residing at ~ o_-_-_-.~ ~-_...-..., · .. My commission expires: ~_~1--/..~. D,4. Received for filing: Ka th) e en~ I~c C~'fi s k~ y, CENCOM - September I I, 2001 Page lO