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HomeMy WebLinkAbout3776 Vendor Subject Department Status Code Amount Begin Date End Date Review Date Insurance Comments Contract Number 3776 SPECTRASITE COMMUNICATIONS Site Lease - Gold Mountain PW Admin TEL File Class LEG 16-3 $ 03/15/1996 07/31/2006 02/15/2008 GL AL E&O $2000000.00 $1000000.00 $ Insurance Total Insurance Review Date $3000000.00 12/01/06 CPI 2/97 Replaced by #4612 w/Tower Asset Sub LLC Vault 01/01/2008 +Browse: Next Previous First Last Update Delete Restart X - Exit Retrieve the Next record Found: 1 Record(s) MAINTAIN Contract Transactions + Contract Number 3776 + +Vendor Name SPECTRASITE COMMUNICATIONS +Subject SITE LEASE - GOLD MOUNTAIN +Department ADMIN SVCS +Status Code TEL + Amount $5400.00 + Begin Date 03/15/1996 + Insurance End Date 03/14/2006 + Type Amount Review Date 11/01/2005 ~ GL $2000000.00 + + Insurance Total $2000000.00 + Insurance Review Date 12/01/2004 + ~ Comments CPI 2/1/97 + TOWER MANAGEMENT AGREEMENT TI~S MANAGEM~qT AGREEMENT is made as of April 20, 1999, by and between SPECTRAS,ITE COlVlMLrNiCA~ONS, INC. ("Manager") and TOWF_~ ASSET SUB, INC. ('`TAS''). RECITAT..q TAS is a wholly-owned subsidiary of Manager and owns cemin comrmmication towers (the "Towers"). TAS and Manager have agre~ to enter into this Agreement, pursuant to winch Manager, fxom and a~er the date hereof, shall msnaSe the marketing, leasing and operation of the Towers. For and in consideration of the foregoing recitals and the mutual covenants and agreements contained herein and the mutual benefits to be derived therefrom, TAS and Manager hereby agree as follows: 1. Appointment ofMsna~,er TAS hereby desi~ates Manager, and Manager hereby accepts such designation, as exclusive manager and les~ug agent for the Towers, upon the conditions and for the term and compensation set forth herein. ' 2. Ter~_. 'The appointment of Manager shall become effective as of the date hereof and shall continue until terminated by either paxty upon ninny days prior written notice, to the other party. 3. Duties of Mau~g~r. The anthority of Manager to carry out the duties specified in this Section 3 ~ be subject to the ~ight of TAS, after consultation with Manager, to perform c~min functions itself and to direct M~uaSer to take or omit to take actions specified by TAS and to othe~¥vise supervise the conduct of the business of the Towers by Manager. 'Subject to the foregoing, and in each case where the actions of Manager hereunder would not violate any license, contract, law or regulation applicable to the Towers, Msuager ~ have the following antho~ty and responsibilities: 3.1 Supe~ision. Manager sh~ supervise and conduct the day-to-day operations of the Towers in the ord~u~D, coupe ofbusines.~. 3.2 Maintenance of Towers. Manager shall supervise the maint~ce o£the Towers ' and pro,nde for normal repairs, replacements and maintenance and for such c~pital improvements as are necessary or appropriate to maintain the Towers. 3.3 Employees, e~c,. Manager shall be responsible for employing or contr~tng for all labor, mate~al, supplies and equipment necessary for the operation of the Towers. DCLII~01:I171158-I 3.4 Negotiation of Contracts. Manager shall negotiate all contracts and perform all tasks necessary for the operation, maintenance, budgeting, servicing, repair, protection, improvement, expansion, upkeep, leasing and other management of the Towers. TAS hereby appoints Manager as its attorney-in-fact, which appointment is coupled with an interest, and authorizes, directs and empowers Manager, as its attorney-in-fact, and in Manager's discretion, to negotiate, enter into and execute any such agreements. · 3.5 Fi/hags. Manager shall supervise the preparation and filing of all federal, state and local reports, returns and statements with respect to the Towers as may be required by ordinances, FCC and FAA regulations, or as othenvise required by applicable law. 3.6 Records. Mandger shall keep or cause to be kept all necessary books and records of all affairs relating to the Towers in conformity with generally accepted accounting principles consistently applied and other record keeping practices customary in the industry. Originals or copies of such books and records shall be maintained at the principal office of Manager and shall ' be open to mspectiun and examination by TAS or its representatives at any reasonable time during the term of this Agreement. 3.7 ~. To the extent appropriate, Manager shall represent TAS and the Towers before all governmental authorities with respect to any matter necessary or desirable to the efficient management thereof. 3.8 Collection of Revenues; Pawnent of Expenses. Manager shall SUPexwise the collection of all fees, charges and other revenue and compensation due with respect to the Towers for the benefit of TAS, shall supervise the payment of the expenses and obligations with respect to the Towers from such Towers Account. Manager shall be entitled to reimbursement for all costs and expenses it incurs in connection with the performance of its obligations hereunder. Manager shall not be required to use any of its own funds in connection with such performance. 3.9 ~. Manager shall take all necessary action to operate and manage the Towers in compliance, in all material respects, with all applicable governmental permits relating to the Towers and all applicable laws, rules, regulations and orders of may federal, state, county or municipal authority having jurisdiction over the Towers. 3.10 Mark~ Manager shall supervise al/marketing, sales promotion and advertising for the Towers. 3.11 Insurance. Manager will obtain and maintain liability and other insurance covering and insuring the Towers in such amounts as is usual and customary in similar businesses and such insurance shall name Manager as an additional insured with respect to such insurance coverage. 4. Cooperation. TAS and Manager shall fully cooperate with each other ha fulfilling the provisions ofth/s Agreement and shall act in good faith in performing their respective obligations under this Agreement. -2- 5. Compensation of Manager. As compensation for its services hereunder, Manager shall be entitled to receive from the Towers Account a fee o~~[~l~ 6. Indemnification of Manager. TAS shall indemnify and hold harmless Manager and its affiliates and their respective directors, officers and eml~loyees (collectively, the "Manager Indemnitees") fi:om and against any and all losses, claims, costs, damages, liabilities, expenses (including reasonable attorneys' fees and the costs incurred by Manager in enforcing its fights hereunder), whether or not arising out of third-party cia/mx (collectively, '!Losses") resulting from or arising out of(i) any breach by TAS of its obligations under this Agreement, (ii) the operation of the Towers, or (iii) the performance by Manager of its obligations hereunder; provided, however, that no Manager hademnitee shall be entitled to indemnification pursuant hereto to the extent the Loss suffered by it arose from its gross negligence or willful misconduct. Expenses incurred by Manager Indemnitees in defending any third-party legal action subject to this Section 6 shall, from time to lime, be advanced by Manager prior to the final disposition of such legal action. 7. Miscellaneous. 7. I · Notices. Any notice, demand or request required or permitted to be given under the provisions oft/tis Agreement shall be in writing, shall be addressed to the parties at the following addresses (or to such other address as any party may request in a notice delivered in accordance w/th this Section 7.1 to the other parties hereto) and shall be effective upon receipt: To TAS: 8000 Regency Parkway Suite 570 Cary, North Carolina 27511 Arm: President To Manager: 8000 Regency Parkway Suite 570 Cary, North Carolina 27511 Atto: President 7.2 Successors and Assi _s. This Agreement shall inure to the benefit of-and be binding upon the parties hereto and their respective successors and permitted assi~.q No party hereto shall have the right to assign this Agreement without the written consent or'the other party, nor shall this Agreement or any of the rights or obligations of the parties hereunder be transferable by operation of law or otherwise. ^.. __ Law. THIS GP, EM rr BE GOV m' D BY'THE LAWS ur ~ ~ ~'IA'IE OF NORTH CAROLINA (BUT NOT THE LAWS PERTAINING TO CHOICE OF LAW) AS TO ALL MATTERS, INCLLrDING BUT NOT LIMITED TO MATTERS OF VALIDITY, CONSTRUCTION, EFFECT, PERFORMANCE AND REMEDIES. 7.4 Amendment. This Agreement may not be modified, altered, or amended in any manner except by agreement in writing duly executed by the parties hereto. 7.5 Counterpartq. This Agreement may be sig~ed in one or more counterparts, each of which shall be deemed an original. IN WITNESS WHEREOF, the parties have executed th{s Agreement as of the day and year first above writte~ TAS: WlrNESS: · - / \ Name: .Title: O MANAGER: WITNESS: Title:- O'. State of North Carolina ) ) ~: Be it r~nembered fl~ on ~ g~ o(~ 1999, f~y b~fom m~, a no~ pubic h ~d for me ~ md ~ ~O~ ~el I. ~% ' , ~ ofTow~ ~ S~, ~c., a ~omfion ~i=~ ~ ~ of~e ~e of Delaw~ (~e "C~o~'~, md &e m~mfi~ d~ ~ ~d w~ch ~ f~go~g M~ ~m~ ~o~ W me p~ m ~ ~c~ ~d he, , d~y ~t~ ~e M~ag~mt A~t bela'me md ~howl~g~ · e Man~t A~t ~ be ~ ~ md d~ ~ ~e ~ md ~ of ~ Co~fi~ ~ ~SS ~OF, I ~ve h~o s~ by ~d md se~ of&e office ~y ~d y~ -5- State of Nord~ Carolina ) ) ss: County of_ ). Beitr~b~ton~s~yof I/,I., ,1999,~.. ~ ~ .~?o~me:ano~pubHcm~dformeco~d.~e~ ~__,~. ,, ~c~ ~ ~. a~l~e comm~Uom; hc., a coloron org~;~ ~d~ la~ ;f ~ afDela~ (~e "Co~mfiong, ~d ~e co. radon des~d ~ ~d ~ch ex~ ae lo.gong M~t A~ ~o~ to me ~y to ~ ~ck ~d he, ~ ~h , d~y ~ ~e ~em~t A~t ~fo~ me ~d ac~owlc~ed · e ~em~ A~cm to ~ ~s a~ ~d d~d ~d ~e ~ ~d d~ of ~e Co~on. ~ ~SS ~0F, ~y ~d ye~ ~o~s~d. I ~ve h~to s~ by ~d ~dse~ of ~e o~ce ~e No~ ~b~c ~ My Comm;~ion e~: 10 -~ ~-~ ~ -6- ASSIGNMENT OF LEASES THIS ASSIGNMENT OF LEASES ("Assignment") is made and entered into effective as --~(~'~ '~ ~ , 1999, by an~ between Nextel West Corp., a Delaware corporation, d/b/a of Nextel4Communications ("Nextel), Tower Parent Corp., a Delaware corporation and affiliate of Nextel ("Parent Co.") and Tower Asset Sub, Inc., a Delaware corporation and affiliate of Nextel and Parent Co. ("Tower Sub"). WITNESSETH: WHEREAS, Nextel, Parent Co., Tower Sub and certain other parties designated therein have entered into an Agreement and Plan of M~rger dated February 10, 1999, as amended (the "Merge~' Agreement"), which contemplates, inter alia the. sale, conveyance, assignment and transfer of lxlextel's tower assets and the lease,back by Nextel of certain ground and/or platform space on such tower assets to continue operation of Nextel's wireless telecommunications business in each such location pursuant to a Master Site Lease Agreement between the parties hereto and the other parties to the Merger Agreement dated of even date herewith (the "Master Lease"); WHEREAS, in connection with the sale of Nextel's leasehold interests in the land and fee simple interests in the tower structures, tower lighting, tower grounding system, and fences and, solely in the cases of sites designated as analog sltes, shelters and concrete pads (hereinafter collectively, the "Property") Nextel desires to assign to Parent Co., Parent Co. desires to assign to Tower Sub, and Tower Sub desires to assume all of Nextel's rights to and obligations as lessee under thos~certain leases (each, a "Prime Lease" and collectively, the "Prime Leases") pursuant to which Nextel derives its leasehold interests in the land and its ownership interests in the tower assets, which Prime Leases are listed on Exhibit A attached hereto and incorporated herein by reference; and WHEREAS, in connection with the sale of its interests in the Property, Nextel further desires to assign to Parent Co., Parent Co. desires to assign to Tower Sub and Tower Sub desires to assume all of Nextel's rights to and interest in all subleases and sublicenses between Nextel as sublessor or sublicensor and third party subleasees and sublicensees (each individually a "Tenant Lease" and collectively, the "Tenant Leases"), which Tenant Leases are listed on Exhibit A. NOW, THEREFORE, for and in consideration of tl~e fore~ing, the sum often Dollars ($10.00) and other good and valuable consideration, the receipt and sufficiency of which )s acknowledged, the parties hereto agree as follows: 1. Recitals. The recitals set forth above are incorporated herein by reference and made a part of this Assignment. 2. ~Assimament and Assumption. Nextel does hereby assign, transfer, set over, and deliver to Parent Co., and Parent Co. does hereby assign, transfer, set over and deliver to Tower Sub all of Nextel's rights, title and interests in and to the Prime Leases, including without limitation all related easements, ancillary agreements and other appurtenant fights pertaining to and running with the real property subject to the Prime Leases, the Property, and the Tenant Leases. Tower Sub does hereby accept, assume and agree to be bound by all the terms and conditions which are the responsibility of the lessee or tenant under each Prime Lease, all the terms and conditions of all related easements and ancillary agreements, and all the terms and conditions which are the responsibility of the sublessor/sublicensor under each Tenant Lease and which arise or are incurred or which are required to be performed from and after the date of this Assignment. ~. · Reconveyance. Notwithstanding anything to the contrary contained herein, in the event Nextel e~ercises its option to re-acquire any Site from Tower Sub pursuant to the terms of the Master Lease, all of Tower Sub's interest therein shall automatically re-convey to Nextel. The parties hereby agree to execute any instrument or other documents required to evidence any such re-conveyance. 4. Further Assurances. The parties hereby agree to perform, execute and/or deliver or cause to be l~erformed, executed and/or delivered any and all such further acts and assurances as may reasonably be required to confirm the transfers pursuant to this Assignment. 5. ~Counterparts. This Assignment may be executed in two or more counterparts, all of which taken together shall constitute one and the same instrument. 6. ~. This Assignment shall be governed and construed in accordance with the laws of the State of Delaware without reference to its conflicts of laws principles. Notwithstanding the foregoing, to the extent that the law of the state in which the real property subject to the Prime Lease is located is mandatory rather than permissive for the issue in question (such as, by way of example only, with respect to possession) the laws of the state in which the real property is located shall govern. 7. Successors and Assi s. The terms and conditions of this Assignment shall mn with the property and shall be binding on and inure to the benefit of the successors and permitted assignees of the respective parties. _ [Signatures on next page.] 2 IN WITNESS WHEREOF, the parties have caused this Assignment to be duly executed and delivered effective as of the date first above written. NEXTEL WEST CORP., a Delaware corporation [sisAL] By: '~"~" ~ Its: TOWER PARENT CORP., a Delaware corporation By: k/'~---'"2-. ~ [SEAL] Its: TOWER ASSET SUB, INC., a Delaware corporation By: '-/~ .'~' ~ rSEALI Its: 3 EXHIBIT A PRIME LEASES AND TENANT LEASES ASSIGNED See the list of Prime Leases and Tenant Leases attached hereto, which is deemed to include all unidentified additional Tenant Leases for the Sites identified therein, if any. If requested, Nextel and Parent Co. shall execute additional documentation pursuant to Section 4 of this Assignment upon the discovery of any such additional Tenant Leases. RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: OneComm Corporation, NA Attn.: General Counsel 4643 South Ulster Street, #500 Denver, CO 80237 ~ LEASE THIS MEMORANDUM OF LEASE is made and entered into as of this ~ day of 199~_, by and between CITY OF BREMERTON, a Washington municipal corporation, ("Lessor") and ONECOMM CORPORATION, N.A., a Delaware corporation ("OneComm"). WlTNESSETH: That Lessor hereby leases to OneComm and OneComm hereby leases from Lessor a portion of that certain real property in the State of Washington, City of Bremerton, County of Kitsap, a legal description of which is shown in Exhibit A attached hereto and incorporated herein by reference, under the terms and conditions of the unrecorded Communications Site Option and Lease Agreement by and between Lessor and OneComm dated March 15, 1996, and incorporated herein by reference (the "Lease Agreement"), for an initial term of five (5) years, and one (1) subsequent optional extension terms of five {5) years, with a term commencement date of no later than Mamh 15, ~,~'8., pursuant to the terms of the Lease Agreement. The portion of the real property leased by Lessor to OneComm is that portion depicted on Exhibit B attached hereto and incorporated herein by reference. The Lease Agreement provides for an easement during the term of the Lease Agreement over Access Areas defined therein and also states, "Any future lease of the Property which permits the installation of communication equipment shall be conditioned upon not interfering with OneComm's operation of the Communications Site." All of the Lessor's covenants under the Lease Agreement ara intended to and shall inure to the benefit of OneComm and its successors. This memorandum is prepared for the purpose of recordation to give notice of the Lease Agreement and shall not constitute an amendment or modification of the Lease. IN WITNESS WHEREOF, the parties hereto have executed this Memorandum of Lease as of the day and year first above written. ,~1t=~'~/I CORPORATION, N.A., a De w.~. corporatio~r~ ~'~ ~ CITY OF BREMERTON, a Washington municipal co~oration '~athleen McCluskey Title: Cit,z Clerk , lan R. Sievers By: ff ~ Eugene W. Samp e-"~ Title: City Attorney Title: Public Works & Utilities Director Federal Tax I.D. No:~ ACKNOWLEDGMENTS CONTINUED lO OneComm Ground Lease and Option Form/Washington © December 18, 1995 Mackenzie & Albritton ALL SIGNATURES MUST BE ACKNOWLEDGED State of Washington ) ~.~-,~/ (.l'.h.~re.~g~i~ng inst ~n~m.e.n,t ~was~ck~n0w_l.edged, before me th[s~y of ~ , 199~, by ~//~/ .)~/~/c~ as ?U~~ ~~ of OneComm Co~oraton, N.A, a Delaware co~atio~.~ ~ ~ ~ ~ ~ ~ ~ ' . ~ ..~%, ~ ~ WITNESS my hand and official seal ~ ~' ~. --~ ~ NoOn'Public fo~ash~n~[on ' ~. ~ ~ ~ Residing at: -~ ",,,,,,,,,~-.~ ~ State of Washington Coun~ o .~~)) ss. J ce~i~ that I know or have satis~acto~ evidence that Lynn HoKon is the pemon who appeared before me, and sa~d pemon acknowledged that he/she signed this inst~ment, on oath stated that he/she was authorized to execute the inst~ment, and acknowledged ~t as the Mayor of the Ci~ o~ BremeKon to be the free and volunta~ act of such pa~ for the uses and pu~oses mentioned in the inst~ment. Not;~ PU~ Wa{hi'on Residing at~ My appointment expires: State of Washington ) :. ) ss. County o ) i certify that I know or have satisfactory evidence that Kathleen McCIuskey is the person who appeared before me, and said person acknowledged that he/she signed this instrument, on oath stated that he/she was authorized to execute the instrument, and acknowledged it as the Citv Clerk of the City of Brernerton Io be the free and voluntary act of such party for the uses and purposes mentioned in the instrument. Dated: Nota~j Pt~b'l~ fJ3&Wash{ngto~ ' -- Residing at /"~/_~-.~ My appointment expires: ~3'--/.,~-- OneComm Ground Lease and Op~n Form/Washington December 18, 1995 Makenzie & AlbdEon ~]C{IB IT 'A' DESCRIPTION: THE NORTHWEST QUARTER AND THE SOUTHWEST QUARTER AND THE WEST HALF OF THE NORTHEAST QU~TEK AND WEST HALF OF THE NORTHWEST QUARTER OF THE SOUTHEAST QUARTER OF SECTION 29, TOWNSHIP 24 NORTH, RANGE 1 EAST, W.M., IN KITSAP COUNTY, WASHINGTON; EXCEPT THE FOLLOWING: THAT PORTION OF THE NORT~EST QUARTER OF THE SOUTHEAST QUARTER, SECTION 29, TOWNSHIP 24 NORTH, P~ANGE 1 EAST, W.M., DESCRIBED AS FOLLOWS: BEGINNING AT A POINT 396 FEET EAST AND 15 FEET NORTH OF THE SOUTHWEST CORNER OF SAID NORTHWEST QUARTER OF THE SOUTHEAST QUA,qTER; THENCE EAST ALONG A LINE PARALLEL TO AND DISTANT 15 FEET NORTH OF THE SOUTH LINE OF SAID NORTHWEST QUARTER OF THE SOUTHEAST QUARTER TO THE EAST LINE OF THE SOUTH HALF OF THE SOUTHWEST QUk~TER OF THE NORTHWEST QUARTER OF THE SOUTHEAST QUARTER OF SAID SECTION 29; THENCE NORTH ALONG SAID EAST LINE TO THE NORTHEAST CORNER OF SAID SOUTH HALF OF THE SOUTHWEST QUARTER OF THE NORTHWEST QUARTER OF THE SOUTHEAST QUARTER; THENCE WEST ALONG THE NORTH LINE THEREOF TO A POINT 396 FEET F-~ST OF THE NORTHWEST CORNER OF SAID SOUTH HALF OF THE SOUTHWEST QUkqTER OF THE NORTHWEST QUARTER OF THE SOUTHEAST QUARTER; THENCE SOUTH ON A STRAIGHT LINE TO THE POINT OF BEGINNING. RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: OneComm Corporation, NA Attn.: General Counsel 4643 South Ulster Street, #500 Denver, CO 80237 MEMORANDUM OF OPTION By this memorandum of option, made on d.~ ~_, 199~concurrently with that certain Communications Site Option and Lease between the same parties covering the same real property, CITY OF BREMERTON, a Washington municipal corporation, ("Lessor") and ONECOMM CORPORATION, N.A., a Delaware corporation, ("OneComm"), agree: 1. Lessor grants to OneComm the right, on the terms and conditions stated in that Communications Site Option and Lease, to lease a portion of the Site in Exhibit A hereto, provided that the option is exercised before March 15, ~ ~,o~¢t~ ; ; IN--~IITNESS WHEREOF, the parties hereto have executed this Option Agreement as of ~[~__, 199~ MCORPORATI~.A., e co~> ~( ) ~ CITY OF BREMERTON, ~ a Washington municipal co~oration ~~ Title: Mayor Kathloon Titlo: ~itg Appm~orm Depa~men~~ Title: CiN AEomey Title: Public Wo~s & Utilities Director Federal Tax LD. No: ACKNOWLEDGMENTS CONTINUED 12 OneComm Ground Lease and Option Form/Washington © December 18, 1995 Mackenzie & Albdtton ALL SIGNATURES MUST SE ACKNOWLEDGED State of Washington ) V',-, _ ) ss. County of ) · .. ?....;~-./~.,as ./-~u.~,! ~'/-~\/~3.'~//?;r of one.emro co~oration, N.A., a Delawar con,ration.' .~'~ '. ~-~ ~ e ....... ?',, ~ ~ ~t~, ~ ~W[TNESS my hand and official seal / ~..~ ~ ~ Nota~ Public ~ ~shi~ ,,, State o~ Washington I ce~i~ that I know or have satisfacto~ evidence that Lynn Ho~on is the pemon who appeared before me, and said pemon ac~owledged that he/she signed this instrument, on oath stated that he/she was authorized to execute the instrument, and acknowledged it as the Mayqr o~ ~e CiN of Breme~on to be the free and volunta~ act of such pa~ for the uses and pu~oses mentioned in the instrument. Dated: ~, 199~ ~~ Residing at ~ My appoin~ent expires: ~/~- State of Washington ) ve satisfacto~, evidence that Kathleen McCluskey is the person who appeared before me, and said person acknowledged that he/she signed this instrument, on oath stated that he/she was authorized to execute the instrument, and acknowledged it as the City Clerk of the (~ity of Brernerton .to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument. N~tary Pl~li,,~,~r W~ashington Residing ati/~.v~l'~ l~')--v~ ~ My appointment expires: ~-/~- OneComrn Ground Lease and OpEon Form/Washington ~ December 18. 1995 Makenzie & ~Jbdffon ~-whHIBIT 'A' DESCRIPTION: THE NORTHWEST QUARTER AND THE SOUTHWEST QUARTER AND THE WEST HALF OF THE NORTHEAST QUARTE~ AND WEST HALF OF THE NORTh"WEST QUARTER OF THE SOUTHEAST QUARTER OF SECTION 29, TOWNSHIP 24 NORTH, P, ANGE 1 EAST, W.M., IN KITSAP COUNTY, WASHINGTON; EXCEPT THE FOLLOWING: THAT PORTION OF THE NORTHWEST QUARTER OF THE SOUTHEAST QUARTER, SECTION 29, TOWNSHIP 24 NORTH, P. ANGE 1 EAST, W.M., DESCRIBED AS FOLLOWS: BEGINNING AT A POINT 396 FEET EAST AND 15 FEET NORTH OF THE SOUTHWEST CORNER OF SAID NORTHWEST QUARTER OF THE SOUTHEAST QUARTER; THENCE EAST ALONG A LINE PAP. ALLEL TO AND DISTANT 15 FEET NORTH OF THE SOUTH LINE OF SAID NORTHWEST QUARTER OF THE SOUTHEAST QUARTER TO THE EAST LINE OF THE SOUTH HALF OF THE SOUTHWEST QUARTER OF THE NORTHWEST QUARTER OF THE SOUTHEAST QUARTER OF SAID SECTION 29; THENCE NORTH ALONG SAID EAST LINE TO THE NORTHEAST CORNER OF SAID SOUTH HALF OF THE SOUTh'WEST QUARTER OF THE NORTHWEST QUARTER OF THE SOUTHEAST QUARTER; THENCE WEST ALONG THE NORTH LINE THEREOF TO A POINT 396 FEET EAST OF THE NORTHWEST CORNER OF SAID SOUTH HALF OF THE SOUTHWEST QUARTER OF THE NORTHWEST QUARTER OF THE SOUTHEAST QUARTER; THENCE SOUTH ON A STR.AIGHT LINE TO THE POINT OF BEGINNING. 0RI G[NAL COMMUNICATIONS SITE OPTIONAND LEASE(washington Ground) This Commumcatiuns Site Option and Lease dated March 15, 1996, (the "Agreement") is entered into by and between ONECOMM CORPORATION, N.A., a Delaware corporation ("OneComm"), having its principal place of business at 4643 South Ulster Street, Suite 500, Denver, Colorado 80237, Attn.: General Counsel, and CITY OF BREMERTON, a Washington municipal corporation, ("Lessor"), having its principal place of business at 239 4th Street, Bremcrton, Washington 98337. 1, The Pronerty, Lessor is the record owner of a certain parcel of real property located in the State of Washington, County of Kitsap, City of Bremerton, commonly knoxvn as count5, tax assessor parcel number 292401-2-0022008, (the "Property"). A legal description of the Property is contained in attached Exhibit A. 2. Ontinn of the Premises. (a) Premises. Lessor grants to OneComm an option (the "Option") to lease from Lessor that portion of the Property generally described as follows: approximately two thousand twenty-five (2,025) square feet of grotmd space, more particularly described as a forty-five (45) foot by forty-five (45) foot parcel of land in the Northeast portion of the Property', upon which OneComm shall construct certain communications facilities consisting of a communications tower with antennas mounted thereon, an equipment shelter, all necessary cabling and underground utility service and such other miscellaneous equipment as may be needed for the satisfactory completion o£ OneComm's communication facility, all to be enclosed by fencing, (the "Premises"). A description of the Premises which may be used for legal purposes is contained in attached Exhibit B. Lessor and OneComm hereby agree that the Promises, including any Access Areas (defined herein), may be surveyed by a licensed surveyor at the sole cost of OneComm, and such survey shall then supplement Exhibit B and become a part hereof and shall control to describe the Premises and Access Areas in the event of any discrepancy between such survey and the description of the Access Areas or boundary of the Premises contained herein. (b) Option Consideration. Within thirty (30) days of the execution of this Agreement, OneComm has paid to Lessor the sum of One Thousand Dollars ($1,000.00) as consideration for the Option. (c) Term of Option. The term of the Option shall commence as o1' the date of this Agreement and shall expire at 12:00 PM on March 15, 1997. (d) Extensions of Option Term. OneComm may extend the term of the Option for one (1) extension period of txvelve (12) months by paying to Lessor additional option consideration in the amount of One Thousand Five Hundred Dollars ($1,500.00), such payment to be delivered before the expiration of the option term, and by providing to Lessor '~vritten notice of OneConm~'s intent to extend the term of the Option. This Option may be further extended by mutual agreement by both parties. (e) Right of Entry on Property. During the option term, OneComm and its designated agents and independent contractors shall have the right to obtain title, enviromnental and other reports on the Property and to enter onto the Property and Premises to perform surveys, soils testing and other engineering procedures, including the installation of radio and antenna test facilities, to the extent necessary for the purpose of determining the adequacy of the Premises for use as a Communications Site (defined herein). OneComm agrees to repair any damage it or its agents or independent contractors shall cause to the Property, and further agrees to inde~rmi£y and hold Lessor harmless from any and all costs, expenses, losses, attorneys' fees, and liabilities (including, but not limited to, claims of mechanics' liens) incurred or sustained by Lessor as a result of any acts of OneComm, its agents, or independent contractors pursuant to the right granted by this paragraph. (O Manner of Exercising Option. The Option may be exercised by OneComm's delivering to Lessor, before the expiration of the option term, written notice of snch exercise (the "Exercise Notice") stating the commencement date for the lease ("Commencement Date") which shall be on or before the expiration of the option term. 3. Lease of the Premises. (a) Lease. Upon exercise of the Option by OneComm, Lessor leases to OneComm and OneComm leases from Lessor, the Premises as described in Exhibit "B" together will all the rights, privileges, easements and appurtenances thereon for the uses and purposes described herein, commencing on the Commencement Date, winch shall be on or before the expiration of the option term, and under the terms and conditions set forth in this lease (the "Lease"). Neither Lessee, Lessor, nor its sublessees shall use any portion of the Property so as to interfere with the operations of the other party. Lessor agrees to take all reasonable steps necessmy to eliminate such interference by Lessor or its sublessees (or others granted rights of use in the Property by Lessor) in a reasonable time period. Such interference shall be deemed a material breach by the interfering party, and any such party shall have the responsibility to terminate said interference. In the event any such interference does not cease promptly, the party suffering the interference shall have the right, in addition to any other fights it may have at law or in equity, to elect to enjoin such interference or to terminate the Lease. (b) OneComm Improvements. Following the Commencement Date, OneComm shall have the fight to construct the Communications Site (defined herein) in accordance with the attached Exhibit B which is hereby approved for construction by Lessor. Lessor ac-knowledges that certain modifications to the Premises not shown on Exhibit B may be required to accommodate construction of the Communications Site which do not require amendment of the building permit (such as orientation of the equipment shelter and tower or the number and type of antennas) which modifications OneComm may complete without further approval by Lessor. OneComm shall obtain the consent of Lessor, which consent shall not be unreasonably withheld, for any modifications required to accommodate the Communications Site not shown in Exhibit B which require an amendment to the building permit. OneComm shall obtain all permits and approvals necessary for OneComm to be legally entitled to construct the Communications Site prior to commencing construction and shall provide Lessor with five (5) days notice prior to the Start of construction to permit Lessor to post notices of non-responsibility. All OneComm contractors and subcontractors shall be duly licensed in the state of Washington. 4. Rent: (a) Base Rent. OneComm shall pay to Lessor the sum of Five Thousand Four Hundred Dollars ($5,400.00) per annum, as rent payable in equal monthly installments of Four Hundred Fifty Dollars ($450.00) each, due and payable in advance on the first day of each month, commencing on the Commencement Date and continuing during the term, plus applicable state leasehold excise tax. (b) Utility Charge. OneConun shall install separate utility meters at the Premises, when permitted by the serving utilities, and OneComm shall be responsible directly to the serving utilities for all utilities required for OneComm's use of the Premises. In the event utilities are provided by Lessor, and only in such event, OneComm shall pay together with the monthly rent the cost of utility service provided to ~he Premises and attributable to OneComm% use ("Utility Charge") xvhich the parties estimate at the Commencement Date to be One Hundred Dollars ($100.00) per month. If OneComm is required to pay a Utility Charge to Lessor, at least annually during the Lease Term, Lessor (or at Lessor's election, OneComm), shall calculate the actual Utility Charge for the immediately preceding twelve (12) months based on readings from the utility meters at the Property and on the rates currently charged by the applicable utility. Any excess paid will be credited to OneComm's next due Utility Charge and any shortage shaI1 be paid by OneComm to Lessor within ten (10) days of notice of such calculation. Upon the fn-st anmversmy of the Conunencement Date and on each such anniversary thereafter, at Lessor's or OneComm's option, the estimated Utility Charge paid monthly by OneComm may be increased or decreased to equal the average actual Utility Charge paid per month for the preceding year. Calculation of the actual Utility Charge due shall be ma&jointly by Lessor and OneComm, and, if they cannot agree, by an arbitrator reasonably acceptable to both parties. (c) Rent Increases. (i) The base rent provided for in Paragraph 4. (a) shall be subject to adjustment on the Commencement Date of the option extension term exercised by OneComm (the "Adjustment Date(s)"). The base for computing the adjustment is the Consumer Price Index, All Urban Consumers (CPI-U), U.S. City Average, All Items, published by the United States Department of Labor, Bureau of Labor Statistics (1982 = 100), (the "Index"), which is in effect on the Commencement Date ("Beginning !ndex")..The Index published most immediately preceding the Adjustment Date in question ("Extension Index") is to be used in determining the amount of the adjustment. If the Extension Index has increased over the Beginning Index, the monthly rent for the following extension term (until the next Adjustment Date) shall be set by multiplying the base rent set forth in paragraph 4. (a) by a fraction, the numerator of which is the Extension Index and the denominator of which is the Beginning Index. In no case shall the base rent be less than the base rent set forth in paragraph 4. (a) and in no case shall the base rent increase mom that twenty-five pement (25%) on any Adjustment Date. If the Index is changed so that the base year differs from that in effect when the term commences, the Index shall be converted in accordance with the conversion factor published by the United States Department of Labor, Bureau of Labor Statistics. If the Index is discontinued or revised during the term, such other govemmental index or computation with which it is replaced shall be used in order to obtain substantially the same result as would be obtained if the Index had not been discontinued or revised. (ii) If exercised, the beginning rent for the Extended Term under paragraph 5 shall be the greater of (a) the rent for year six calculated under paragraph 4(c)(i), or (b) the annual lease charged for a comparable site by King County. Increases to the beginning rent during the Extended Term shall be calculated under 4(c)(i). (d) Additional Consideration. Lessor shall be allowed, at Lessor's sole expense, to attach Lessor's communication antennas to OneComm's communications tower provided Lessor first obtains OneComm's prior written consent for such attac~nents. OneComm's approval for said attachments shall be contingent upon determining whether OneComm's tower is properly engineered to accommodate Lessor's antenna system. Further, said approval shall be given only after OneComm has reviewed and approved Lessor's engineering plans for said antenna attachments in a location specified by OneComm. Upon written approval by OneComm, said attachments shall be installed by qualified licensed contractors and in accordance with OneComm's directives for the method of installment and with permits issued by governmental authorities having jurisdiction which shall first be obtained by Lessor at its sole expense. Lessor acknowledges and agrees that OneComm ~serves the right to relocate Lessor's antennas at any time(s) to accommodate modifications required for OneComm's future system requirements. Further, OneComm shall not be held liable for any downtime or outages in Lessor's communications system caused by the aforementioned relocation or by any other reason associated with OneComm's communications tower and/or system unless directly caused by the negligence of OneComm or its agents or employees. OneComm shall have the right to remove the tower at the expiration or earlier termination of this lease, without further obligation to Lessor. 5. Term of Lease. This Lease shall conm~ence to run from the Commencement Date. The Lease shall be for an Initial Term of five (5) years (the "Initial Term"). OneComm shall have the right to extend its tenancy beyond the initial term for one (1) additional successive optional extension term of five (5) years ("Extended Term"). In the event of the inability of the City to deliver possession of the Premises, or any portion thereof, at the time oftbe commencement of the term of this lease, neither Lessor nor any of Lessor's officer's, employees, or agents shall be liable for any damage caused thereby, nor shall this Lease thereby become void or voidable, but in any such event, OneComm shall not be liable for any rent until such time as Lessor can deliver possession and OneComm shall have the option of either specifying a new Commencement Date or terminating this Lease. If OneComm shall take possession of the Prenfises prior to the commencement date of this Lease, OneComm and Lessor agree to be bound by all of the provisions and obligations hereunder during such prior period. 6. U~¢ of the Premises. (a) Use. OneComm shall use the Premises as one of OneComm's radio communications sites (a "Communications Site") comprising OneComm's system (the "System") for providing radio and wireless telecommunications services to the public, including Enhanced Specialized Mobile Radio, Specialized Mobile Radio, short messaging, wireless data and any other radio service which OneConnn is legally authorized to provide to the public during the term of the Lease. A Communications Site, for purposes of this Agreement, is a site at which radio, telephone and communications equipment is installed and used to send and receive radio signals to and from wireless telephones and other radio devices and to connect those signals to radio, telephone or other communications facilities either directly, by means of cables, or indirectly, by means of transmitting and receiving facilities (including microwave antennas) located at the Communications Site. OneComm shall not use the Premises for any other purposes without the written consent of Lessor. (b) Permits. It is understood and agreed that OneConun's ability' to use the Property for the "usc" as described herein is contingent upon OneComm obtaining and maintaining after the execution date of the Agreement all certificates, permits and uny other approval as may be required by the federal, state, or local authorities. Lessor shall cooperate with OneComm in its efforts to obtain such approvals and shall take no action which would adversely affect the current use of the Property with respect to the proposed use thereof by OneComm (c) FCC Compliance. OneComm represents and warrants that it has full power and authority from the Federal Communications Commission (or any state or federal agency having jurisdiction) to install, operate and maintain its equipment in the manner contemplated under this Agreement. OneComm agrees to use the facilities leased hereunder only for the purpose contemplated herein and to comply will all applicable state, county, or municipal laws and ordinances. (d) Right to Inspect. Lessor shall have the exclusive right to inspect OneComm's facilities and equipment at any time during the term(s) of this Agreement to ensure compliance with terms and conditions herein. Said inspection shall be made only upon reasonable prior notice and at such times as are reasonable calculated to avoid uny interference with OneComm's operations. Lessor's rights of entry and inspection in accordance with this Subsection 6 (d) and Section 11, are conditioned on the absolute right of OneComm to require accompaniment by a representative of OneComm at all times during Lessor s presence on the Premises and on the authority of OneComm to terminate any inspection or activity by Lessor which interferes with OneComm's operations. 7. Easement. Lessor hereby grants to OneConm~ for the duration of this Agreement, or any extensions thereof, an unimpaired, non-exclusive easement and right of way in and over the access roads (if any) shown in Exhibit B ("Access Road"), the overhead or underground cable and utility runs (if any) shown in Exhibit B ("Service Easement") the common areas at the Property and all areas necessary to provide physical access by personnel and equipment from the nearest public right of way, and utilities from the nearest service, to or from the Premises (collectively with the Access Road and Service Easement, the "Access Areas"). The rights granted to OneComm herein are for the purpose of installing, constructing, maintaining, restoring, replacing, and operating OneComm's equipment located within or on the Premises or such Access Areas, including, in the case of an emergency, the right to temporarily install a fuel powered electrical generator. Such rights shall include the right of ingress and egress, twenty-four (24) hours per day, seven (7) days per week over such Access Areas for access to or from any of OneComm's equipment. It shall be the duty of OneComm to adequately maintain the access road spur used exclusively by OneComm and pay its pro-rata share of reasonable maintenance costs of the common road, both depicted within the Exhibit B attached hereto. 8.Protections Against Interference. Lessor will not grant a lease to any party for use of the Property it such use would interfere with OneComm's operation of the System Any future lease of the Property which permits the installation of communication equipment shall be conditioned upon not interfering with OneComm's operation oftbe Communications Site. Without limiting any other remedy in law or equity OneComm shall have the right to terminate this Agreement upon thirty (30) days' written notice in the event its reception or la'ansmission is interfered with by other antenna equipment, or obstacles constructed or operated in OneComm's reception or transmission paths. 9. Damage and Destruction. If the Premises are, in whole or in part, damaged or destroyed during the Lease Term then: (a) if wholly damaged or destroyed so that all of the Premises are rendered permanently unusable for reconstruction of a Communications Site, this Agreement shall then terminate and OneComm shall be liable for the rent only up to the time of such destruction and any rent prepaid by OneComm shall be returned to OneComm; but (b) if only partially destroyed and still usable for construction of a Communications Site, OneComm shall, within a reasonable time, repair the Premises with a reasonable reduction of rent from the time of such partial destruction until the Premises are again as fully usable by OneComm as they were before such partial damage or destruction; provided, however, that OncCormn shall not be required to rebuild the Communications Site if: (i) such partial damage or destruction shall occur within three (3) months prior to the termination of this Agreement; (ii) OneComm continues to pay the rental amounts due hereunder and the Premises are maintained in a safe and sanitary condition; or (iii) such damage and destruction is directly caused by the negligence or misconduct of Lessor. A decision as to whether partially destroyed or partially condemned (for purposes of Section 10) Promises am still usable for reconstruction of a Communications Site (for purposes of section 10). shall be made jointly by Lessor and OneComm, and, if they cannot agree, by an arbitrator reasonably acceptable to both parties. 10. Condemnation. If all or part of the Promises is taken by condemnation such that the Premises are no longer usable for construction as a Communications Site, the Agreement shall terminate unless OneComm% equipment and improvements can be relocated to another position at the Property acceptable to OneComm OneComm shall be entitled only to that portion of the proceeds of condemnation which is directly attributable to the value of OneComm's equipment and improvements and cost of relocation. 11. Need to Prevent Unsupervised Access. OneComm's communications equipment is highly sensitive and any entry onto the Promises which could damage or interfere with it must be controlled. Accordingly, Lessor shall not enter the Premises (otl~er than in an emergency) unless it has given twenty-four (24) hours' actual notice to OneComm. In case of emergency, Lessor shall make reasonable efforts to notify OneComm prior to entering the Premises. 12. Termination bv OneComm. OneComm may terminate this Agreement for cause upon the giving of thirty (30) days' written notice to Lessor if any of the following events occur: (a) OneComrn fails to obtain or loses any necessary permits, approvals or orders and is thereby unable to use the Premises as a Communications Site; (b) If OneComm determines at any time that the Property is not appropriate for locating OneComm's communication equipment for technological reasons, including, but not limited to, signal interference; or (c) Lessor fails to comply with any term, condition or covenant of this Agreement and does not cure such failure within thirty (30) days after OneComm's xvritten notice thereof or in the event of a cure which requires in excess of thirty (30) days to complete, if Lessor has not commenced such cure within thirty (30) days of such notice and is not diligently prosecuting said cure to completion. OneComrn shall have the right to cure any default by Lessor following such notice and cure period and to deduct the cost of such cure from rent due hereunder upon presentation of an accounting of such costs to Lessor. 13. Termination by Lessor. Lessor may terminate the Agreement upon the occurrence of any of the following: (a) failure by OneComm to pay any rent required hereunder when due if such failure shall continue for more than ten (10) days after delivery to OneComm of notice of such failure to make timely payment; (b) failure by OneComm to comply with any material term, condition or covenant of the Lease, other than the payment of rent, if such failure is not cured within thirty (30) days after written notice thereof to OneComm, or in the event of a cure which requires in excess of thirty (30) days to complete, if OneComm has not commenced such cure within thirty (30) days of such notice and is not diligently prosecuting said cure to completion; or (c) if OneComm becomes insolvent, or makes a transfer in fi-aud of creditors, or makes an assignment for the benefit of creditors, or files a petition under any section or chapter of the Federal Bankruptcy Code, as amended, or under any similar law or statute of the United States or an3' state thereof, or is adjudged ba 'nkmpt or insolvent in proceedings filed against OneComm thereunder, or if a receiver or trustee is appointed for all or substantially all of the assets of OneComm due to OneComm's insolvency. 14. Exercise of Options to Extend. OneComm shall have the option to extend the term of the Lease the successive extension period set forth in Section 5 of this Agreement, on the same terms, covenants and conditions (except as to the rent and number of remaining extension terms), as are contained in the Lease OneComm shall be deemed to have thnely exercised the optional extension term without notice to Lessor unless OneComm shall provide 'avitten notice to Lessor not less than ten (10) days prior to the expiration of the current term of OneComm's intent to terminate the Lease at the end of that term. 15. Warranties and Covenants of Lessor. Lessor warrants and covenants that: (a) Lessor has legal fight to possession of the Premises and the power and the right to enter into this Agreement and that OneComm, upon the faithful performance of all of the terms, conditions and obligations of OneComm contained in this Agreement, shall peaceably and quietly hold and enjoy the Premises upon the terms, covenants and conditions set forth in this Agreement throughout the term of this Agreement and any extensions thereof; (b) Lessor shall deliver the Premises to OneComm clean and free of debris on the Commencement Date and shall maintain the Property in a manner which will not interfere with OneComm's use of the Premises as contemplated hereby; (c) Lessor shall make available to OneComm at the Premises, all presently existing utility services required by OneComm for purposes of the operation of OneConnn's equipment at the Premises, provided that OneComm may at its own expense or Lessor) may, if OneComm so requests, at OneComm's expense), install any and all additional utilities service facilities which are so required; (d) Lessor shall, during the term hereof, make payment of all real property ~xes and general and special assessments levied against the Property and the Premises which it has the duty to pay within the time allowed by the taxing authorities in order to avoid penalty and OneComm shall compensate Lessor for any real property taxes directly attributable to the value of improvements placed upon the Promises by OneComm; and (e) OneComm shall have access to the Promises from the nearest public way at all times and all security gates and access roads (if any) shall be operational provided, however, it shall be the duty of OneComm to adequately maintain the access road spur used exclusively by OneComm in accordance with Section 7 of this Agreement. 16. Warranties and Covenants of OneComm. OneComm warrants and covenants that throughout the Lease Term, OneComm shall maintain comprehensive liability insurance, naming Lessor as an additional insured, protecting and indemnifying Lessor and OneComm against claims and liabilities for injury, damage to persons or property, or for the loss of life or of property occurring upon the Premises or access areas resulting from any negligent act or omission of OneComm Such insurance shall afford_ minimum_Lp, ratcction _Q£rtol~than (0n~e Million dollars) per occurrence and (_Two Million dollars~}, a_ggr~gate. OneComm shall also maintain during the eLeLeLeLeLeLeLeLeL~se Term personal property insurance in an amount sufficient to fully protect all personal property, fixtures and tenant improvements owned or controlled by OneComm frmn theft, fire or other loss or damage while upon the Property. OneComm shall provide to Lessor a certificate indicating the applicable coverage, upon request. OneComm shall maintain the Premises in a clean, safe and sanitary condition throughout the Lease Term. OneComm shall not permit waste, damage, or injury to the Premises. 17. Liability and Indemnification. (a) Indemnification. OneComm shall at all times comply with all laws and ordinances and all roles and regulations of municipal, state and federal govermnental authorities relating to the installation, maintenance, height, location, use, operation, and removal of improvements authorized herein, and shall fully defend, indemnify, and save harmless Lessor against an5' loss, cost or expense which may be sustained or incurred by Lessor as a result of the installation, operation or removal of such improvements. OneComm shall defend, indemnify, and save harmless Lessor, its appointed and elected officers and employees from and against any and all liability, loss, costs, damage and expense, including costs and attorney fees in defense thereof because of its actions, claims, or lawsuits for damages resulting from personal or bodily injury, including death at anytime resulting therefrom, sustained or alleged to have arisen directly or indirectly out of the performance of this Agreement, by OneComm, its employees and/or agents whether such injuries to persons or damage to property is due to the negligence of OneCormn, its subcontractors, agents, successors or assigns. This provision shall be inapplicable to the extent of willful misconduct of Lessor or if Lessor is judicially found solely negligent for such damage or injury. (b) Liens. OneCormn shall not permit any lien to be imposed upon the Property of Lessor as a result of work done by or on behalf of OneComm and shall indemnify and hold Lessor harmless against any and all expenses, including reasonable attorney's fees and court costs in connection with any such lien. 18. Title To and Removal Of OneComm's Equipment. Title to OneComm's equipment, and all improvements installed at and affixed to the Premises or Property by OneComm shall be and shall remain thc property of OneComm. Lessor hereby waives any lien rights it may have or acquire with respect to such property and shall promptly execute any document required by any supplier, lessor, or lender of such property which waives and rights Lessor may have or acquire with respect thereto. OncConun may, at any time, including any time it vacates the Premises, remove OneComm s improvements, equipment, fixtures, and all of OneComm's personal property from the Premises, but OneComm shall not be required to remove any foundations for the tower or equipment shelter nor any underground cable or conduit. 19. ~ If OneComm holds over after the Lease has been terminated, the tenancy shall be month-to-month, subject to the provisions of the Lease. 20. ~ Upon termination of the Agreement, OneComm shall remove the equipment and improvements installed at the Premises by OneComm except as set forth in Section 18, and shall surrender the Premises in as good order and condition as when first occupied by OneComm, wear and tear and damage by fire or other casualty excepted. 21. Assienment and Sublettim,. OneComm shall not assign, sublet or otherwise transfer or encumber all or any part of OneComm's interest in this Agreement without Lessom prior written consent, which Lessor shall not unreasonably withhold, subject to a sublease fee to be negotiated. Notwithstanding the foregoing, OneComm may assign or sublet its interest in this Agreement or may assign or sublet the Premises, or any portion thereof, without Lessor's consent, to any entity which controls, is controlled by, or is under the common control with OneComm, or to any enti .ty resulting from any merger or consolidation with OneComm, or to any partner of OneComm or to any partnership in which OneComm is a general partner, or to any person or entity which acquires all of the assets of OneComm as a going concern, or to any entity which obtains a security interest in a substantial portion of OneComm's assets. Lessor hereby consents to_: the assignment by OneComm of its rights under this Agreement as collateral security to any entity which provides financing for the purchase of the equipment to be installed at the Premises; and the license of portions of the Premises to communications users similar to OneComm;Any such assignment, subletting or transfer shah not relieve OneComm oi~its obligat~-oons "~der this Agreement. Should Lessor sell, lease, transfer or otherwise convey all or any part of the Property to any transferee other than OneComm, then such transfer shall be subject to this Agreement and all of OneComm's rights hereunder and the easement rights of OneComm to the Access Areas. 22. Notices and Other Communications. Ever5' notice required by this Agreement shall be delivered either by (i) personal delivery (including deliver5, by recognized overnight courier service which obtains signature ofreceip0, or (ii) postage prepaid return receipt requested certified mail addressed to the party for whom intended at the addresses specified below or at such other address as the intended recipient shall have designated by written notice. Lessor: City of Bremerton Department of Mtmicipal Utilities 3027 Olympus Drive Bremerton, Washington 98310 OneConmr OncComm Corporation, N.A. Attn.: General Counsel 4643 South Ulster Street, Suite 500 Denver, Colorado 80237 A copy of each notice sent to OncComm shall be sent to: OneComm, 5808 Lake Washington Blvd., Suite//400, Kirkland, WA. 98033, Attn.: Real Estate Manager, and one copy to Paul B. Albritton, Mackenzie & Albritton, One Post Street, Suite 500, San Francisco, CA 94104. 23. Hazardous Substances. OneComm agrees that it will not use, generate, store or dispose of any Hazardous Material on, under, about or within the Property in violation of any law or regulation. Lessor represents warrants and agrees (1) that neither Lessor nor, to Lessor's ~knowledge, any third party has used, generated, stored or disposed of, or permitted the use, generation, storage or disposal of, any Hazardous Material (defined below) on, under, about or within the Property in violation of any law or regulation, and (2) that Lessor will not, and will not permit any third party to use, generate, store or dispose of any Hazardous Material on, under, about or within the Property in violation of any law or regulation. Lessor and OneComm each agree to defend, indemmfy and hold harmless the other and the other's partners, affiliates, agents and employees against any and all losses, liabilities, claims and/or costs (including reasonable attorney's fees and costs) arising from any breach of any representation, warranty or agreement contained in this Section. As used in this Section, "Hazardous Material" shall mean petroleum or any petroleum product, asbestos, any substance known by the state of Washington to cause cancer and/or reproductive toxicity, and/or any substance, chenfical or waste that is identified as hazardous, toxic or dangerous in any applicable fcderal, state or local law or regulation. 24. Waivers. Any waiver of any right under this Agreement must be in writing and signed by the waiving party. 25. Wril[ten Agreement to Govern. This Agreement is the entire understanding between the parties relating to the subjects it covers. Lessor acknowledges that this Communications Site Option and Lease, once executed by Lessor, constitutes an offer to OneComm which shall not be binding upon the parties until accepted by OneComm's authorized signature below. 26. Attorneys' Fees. The substantially prevailing part3 in any action or proceeding brought to enforce this Agreement shall be entitled to recover its reasonable attorneys' fees, costs, and expenses in connection with such action or proceeding from the other party. 27. ¥0rther Assurances. In addition to the actions specifically mentioned in this Agreement, the parties shall each do whatever may be reasonably necessary to accomplish the transactions contemplated in this Lease including, without limitation: execution of all applications, permits and approvals required of Lessor for construction of the Communications Site by OneCormn; cooperation in obtaining Non-Disturbance Agreements from holders of senior encumbrances on the Property; and execution of a Memorandum of Option, a Memorandum of Lease (attached hereto as Exhibit C) and a Memorandum of Commencement hereof in form appropriate for recording in the county, in which the Premises are situated. 28. Licenses and Permits. Upon commencement of thc Lease, OneComm shall be responsible for real property, excise leasehold, business and occupation, and/or other taxes or licenses which may in the future be assessed as a direct result of OneComm's operations. 29. Taxes, OneComm shall pay any personal property taxes assessed on, or any portion of such taxes attributable to. the Communications Site. 30. T~chnicld Standards. OneComm shall operate its equipment in complete compliance with rules and regulations of the Federal Coumumications Commission and shall furnish Lessor with a copy of its current license and all subsequent renewals for Lessor's files. A copy of said license shall be posted at all times on OneComm's equipment at subject site. OneComm shall operate its equipment in compliance with the applicable standards and coordinate frequency assignments for this site as established by the Association of Public Communications Officers (APCO) and the National Association of Personal Communication Industry Association (PCIA). 31. Waiver of Default. No waiver of default by either party of any of the terms, covenants, and conditions hereof to be performed, kept and observed by the other party shall be construed as, or operate as, a waiver of any subsequent default of any of the terms, covenants, and conditions herein contained, to be performed, kept and observed by the other party. 32. R¢lllfionship. In no event shall Lessor be construed, or held to have become in any way or for any purpose a partner, associate, or joint venturer, of OneComm or any part)' associated with OneComm in the conduct of OneComm's business or otherwise. This Lease does not constitute OneComm as the agent or legal representative of Lessor for any purpose whatsoever. 33. First Ri,hr of Refusal. As consideration for this Lease, OneComm shall have the right of first refusal to lease the Premises upon the termination of the optional extension term if exercised by OneComm The terms and conditions of the Lease provided for by this provision shall be established by Lessor. OneComm shall have fitteen (15) days fi.om the date Lessor makes written notification to OneComm of said terms and conditions to provide written notice to Lessor of intent to lease. If OneComm's notice of intent to lease is not received by Lessor within the stipulated time limit, Lessor shall be freed to lease the Premises to other lessees upon terms and conditions equal to those included within Lessor's notification of terms and conditions to OneComm with no further obligation to OneComm. 34. Effectuation of Aereement, In order to be effective, this Agreement must be (1) signed by an authorized representative of OneComm and returned to Lessor at the address set forth within paragraph 22. herein accompanied by any required policy of insurance, and (2) signed by the Mayor of the City of Bremerton and attested to by the City Clerk. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above mitten. // // ONECOMM CORPORATION, N.A., CITY OF BREMERTON, a~D"ala~are corporation,,~ t'l ~ a Washington municipal corporation Date: q IZ'2; J~l! Attes~7~ ,~,~w,~,_..~ ~,o.~~ '1-' ~ x~ Federal Tax I.D. No: ~P/"///*~/Z7~--' ritle:Kathleen McCluskey. Ci_ty Clerk ~~Appro~/~To Form ,, Title:lan R. Siever$, City Attorney Depart ~ t~~ By: ' tt ~' ~~ Title:W. Eugene Sampley, Director of Public Works and Utilities Federal Tax 1.D. No:91-6001231 State of Washington ) County of King ) I cemfy that I know or have satisfactory evidence tha{ · is the person who appeared before me, and said person acknowledged that he/she was authorized to execute the instrument, and acknowledged it as the PNW - President of OneComm Corporation, N.A, a Delaware corporation to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument. Dated: ~5~ , 1996. %tm~Pub~ fo~.Wa~n.---...~..-.- - ." ~ -" '''~ .-:r,~o~o:,, -':~ "'""' "', """" ~ ' ", Residing at ~/~/r_~ . .., / ... State of Washington ) ", County of Kitsap ) I certify that I know or have satisfactory evidence that Lvnu S. Horton. Kathleen McCluskev. lan R. $ievers. and W. Eu~,ene Sampley are the persons who appeared before me, and said persons acknowledged that they am authorized to execute the instrmnent, and acknowledged it as the Mayor. City Clerk. City Attorney and Director of Public Works and Utilities of the City of Bremerton, a Washington municipal corporation to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument. Dated:,~__., 1996. ot yPu li cf??.ashi.n . a Residing at ? ' q, ' My appointment expires:~ EXHIBIT "A" DESCRIPTION: THE NORTHWEST QUARTER AND THE SOUTHWEST QUARTER AND THE WEST HALF OF THE NORTHEAST QUARTER AND WEST HALF OF THE NORTHWEST QUARTER OF THE SOUTHEAST QUARTER OF SECTION 29, TOWNSHIP 24 NORTH, RANGE 1 EAST, W.M., 1N KITSAP COUNTY, WASHINGTON; EXCEPT THE FOLLOWING: THAT PORTION OF THE NORTHWEST QUARTER OF THE SOUTHEAST QUARTER~ SECTION 29, TOWNSHIP 24 NORTH, RANGE 1 EAST, W.M, DESCRIBED AS FOLLOWS: BEGINNING AT A PO1NT 396 FEET EAST AND 15 FEET NORTH OF THE SOUTHWEST CORNER OF SAID NORTHWEST QUARTER OF THE SOUTHEAST QUARTER; THENCE EAST ALONG A LINE PARALLEL TO AND DISTANT 15 FEET NORTH OF THE SOUTH LINE OF SAID NORTHWEST QUARTER OF THE SOUTHEAST QUARTER TO THE EAST LINE OF THE SOUTH HALF OF THE SOUTHWEST QUARTER OF THE NORTHWEST QUARTER OF THE SOUTHEAST QUARTER OF SAID SECTION 29; THENCE NORTH ALONG SAID EAST LINE TO THE NORTHEAST CORNER OF SAID SOUTH HALF OF THE SOUTHWEST QUARTER OF THE NORTHWEST QUARTER OF THE SOUTHEAST QUARTER; THENCE WEST ALONG THE NORTH LINE THEREOF TO A POINT 396 FEET EAST OF THE NORTHWEST CORNER OF SAID SOUTH HALF OF THE SOUTHWEST QUARTER OF THE NORTHWEST QUARTER OF THE SOUTHEAST QUARTER; THENCE SOUTH ON A STRAIGHT LINE TO THE POINT OF BEGINNING.