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3866
USA MOBILITY INC
Telecomm Facility - Cheryl Street
PW Admin
LEG 16-3
12/01/1997
09/30/2007
02/15/2011
01/01/2011
Letter 1/06 regarding termination - waiting for
response per Paul Lucas 3/1/06
Name change effective 5/23/07 (formerly Metrocall Inc
also Arch Wireless also Pagenet)
New Lease 3/09
BI LITY™
FOR WIRELESS
USAM
ONE SOURCE
Lease Administration Department
3000 Technology Drive, Suite 400
Piano, Texas 75074
05/01/07
Sent via: UPS
City of Bremerton
345 6th Street
Suite #600
Bremerton, WA 98337
To : Mr. Lucas
This letter serves as a formal 120 days prior written notice that Metrocall, Inc. will be terminating the
License/Lease Agreement, dated 09/16/1996 by and between State of Washington and Metrocall, Inc., a
USA Mobility company, (successor in interest to Western Telepage, Inc..), in accordance with section 11 of
the License/Lease Agreement for the site listed below. The License/Lease will terminate on September 30,
2007.. Metrocall, Inc. will continue monthly payments through the termination date of September 30,
2007.
Site Address: 1925 CHERYL STREET
MetrocaIl Site Name: BREMERTON CG
Metrocall Site ill: W AOI00
MetrocaIl Lease ID: 6643
Equipment to be removed:l-lway tx- 931.6125 & 931.2125
Lease Payment Amount: 1,714.58
Please sign this letter acknowledging your receipt and approval of such, and to acknowledge that there are
no sums due and owing by either party. Please fax it to my attention at: (972) 801-0144. If your
acknowledgement is not received within 30 days of your receipt ofthis notice, your acknowledgement and
approval will be deemed implied. We appreciate your attention in this matter.
If you have any questions or concerns, please contact Lease Administrator Rebecca Davis at. (972) 801-
0215
Lisa Abel
Printed Name
Manager of license and leases
Title
On behalf of MetrocaIl, Inc., a USA Mobility Company:
Received and acknowledged by:
PAUL R. LUCAS CONTRACT ADMINISTRATOR
Printed Name Title
~~~-
Signature
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CHANGE Contract Transactions
Contract Number 3866
+
+Vendor Name USA MOBILITY INC (FORMERLY ARCH WIRELESS)
+Subject TELECOMM FACILITIES LEASE - CHERYL STREET
+Department ADMIN SVCS
+Status Code TEL
Amount $19800.00
Begin Date 12/01/1997
Insurance End Date 11/30/2000
Type Amount Review Date 10/01/2004
+ AL 52000000.00
+ CL 52000000.00
+
Insurance Total $4000000.00
Insurance Review Date 12/01/2005
+
Comments (FORMERLY PAGENET)
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+Browse: Next Previous First Last Update Delete Restart X - Exit
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+Found: 1 Record(s) MAINTAIN Contract Transactions
+ Contract Number 3866
Vendor Name PAGENET (PAGING NETWORK OF SEATTLE)
~Subject TELECOMM FACILITIES LEASE - CHERYL STREET
Department ADMIN SVCS
Status Code TEL
~ Amount $19800.00
% Begin Date 12/01/1997
+ Insurance End Date 11/30/2000
+ Type Amount Review Date 02/01/2004
+ AL $1OOOOOO.OO
+ GL $2OOOOOO.OO
+
+ Insurance Total $3000000.00
+ Insurance Review Date 11/01/2003
+
~ Comments
+
TELECOMMUNICATIONS FACILITIES
LEASE AGREEMENT
THIS LEASE AGREEMENT entered into by and between the City ofBremerton, a
municipal corporation duly organized and existing under the laws of the State of Washington, as
Lessor (hereinafter referred to as "City") and Paging Network of Oregon, Inc. dba Paging
Network of Seattle, (hereinafter referred to as "Lessee").
WITNESSETH:
1. PREMISES. The City hereby leases to the Lessee real property for housing,
installing, constructing, operating and maintaining certain telecommunications facilities, said real
property and facilities being more specifically described and/or depicted in Schedule A, attached
hereto and specifically incorporated herein (hereinaher referred to as Premises). Lessee agrees to
accept such real property for such purpose, subject to the considerations, terms and conditions
specified in this Telecommunications Facilities Lease Agreement (hereinafter referred to as
"Lease").
2. DEFINmONS. For the purpose of this Lease, and the interpretation and
enforcement thereof, the following words and phrases shall have the following meanings, unless
the context of the sentence in which they are used shall indicate otherwise:
"Person" means and includes corporations, companies, associations, joint stock
companies or associations, firms, partnerships, limited liability companies and individuals and
includes their lessors, trustees and receivers;
"Telecommunications carrier" means and includes every person that dkectly or
indirectly owns, controls, operates or manages plant, equipment or property within the City, used
or to be used for the purpose of offering telecommunications service;
"Telecommunications facilities" means the plant, equipment and property, including but
not limited to, cables, wires, conduits, ducts, pedestals, antennae, towers, electronics, equipment
storage structures and other appurtenances used or to be used to transmit, receive, distribute,
provide, house or offer telecommunications services;
"Telecommunications provider" means and includes every person who provides
telecommunications services over telecommunications facilities without any ownership or
management control of the facilities;
"Telecommunications service" means the providing or offering for rent, sale or lease, or
in exchange for other value received, of the transmittal of voice, data, image, graphic and video
LEASE AGREEMENT
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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.
3. USES AND PURPOSES. Lessee shall have the use and occupancy of the
Premises for the purpose of transmission and reception of telecommunication and signals in any
and ail frequencies using reai property and telecommunications facilities described in Schedule A.
Lessee shall have the right, at its expense, to erect and maintain on the Premises
improvements, personal property and facilities, as described in Schedule A.
City shall provide Lessee ingress, egress, and twenty-four hour a day, seven days a week
access over the property to the Premises adequate to service the Premises and the
telecommunication facilities at all times during this Lease at no additionai charge to Lessee. City
shall furnish the Premises to Lessee in good condition and repair and shall maintain the Site in a
manner which will not interfere with Lessee's reasonable use of site.
4. LEASE APPLICATION. Any person that desires to solicit the City's approvai
of a Lease shail file a lease proposal with the City which shail include the following:
A. The identity and legai stares of the applicant, including any affiliates;
B. The name, address, telephone number and title of the officer, agent or
employee responsible for the accuracy of the lease application statement;
C. A description ofthe 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;
1). A description of the telecommunications facilities or other equipment
proposed to be located upon City property;
E. A description of the City property upon which the applicant proposes to
locate telecommunications facilities or other equipment;
F. Signed set of owners drawings, preliminary plans and specifications in
suffident detail to identify:
(I) Manufacturer standards, punch list on workmanship inspections for
future sign-offby City inspectors for all telecommunication facilities
being proposed by Lessee.
LEASE AGREEMENT - 2
~a~s N~wo,k
(2) The location(s) of existing tdecommunications facilities or other
equipment upon the City property, whether publicly or privately
owned.
(3) The location and source of electric and other utilities required for
the installation and operation of the proposed facilities.
G. Accurate scale conceptual drawings and diagrams of sufficient specificity
to analyze the aesthetic impacts of the proposed telecommunications facilities or other equipment;
1t. 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 fi-anchising;
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
M. An application fee of Five Hundred and No/100 Dollars ($500.00).
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 carders, providers or
other persons for telecommunications or any other purpose.
6. TERM OF LEASE. This Lease shall be valid for a term of three (3) year(s)
commencing ~;~._~t_., / .1997 and terminating
including an option to renew for one additional three (3) year term pursuant to Section 13
hereunder. Compensation will be renegotiated for renewal option.
7. RIGHTS GRANTED. This I_,ease does not convey any right, title or interest in
the City property, but shall be deemed a license only to use and occupy the City property for the
limited purposes and term stated in the Lease. Further, this Lease shall not be construed as any
warranty of title.
8. INTERFERENCE WITH OTHER USERS. The Lessee acknowledges that the
City may enter into leases with other tenants for their equipment and telecommunications facilities
LEASE AGREEMENT - 3
for the purposes of transmitting and receiving telecommunication signals from City property. The
City, however, is not in any way responsible or liable for any interference with Lessee's use of the
City property which may be caused by the use and operation of any other tenant's equipment,
even if caused by new technology. In the event that any other tenant's activities interfere with the
Lessee's use of the City property, and the Lessee cannot resolve this interference with the other
tenants, the Lessee my, upon 30 days notice to the City, terminate this lease and restore the City
property to its original condition, reasonable wear and tear excepted. The Lessee shall cooperate
with all other tenants to identi~ the causes of and work towards the resolution of any electronic
interference problem. In addition, the Lessee agrees to eliminate any radio or television
interference caused to City-owned facilities or surrounding residences at Lessee's own expense
and without installation of extra filters on City-owned equipment.
9. OWNERSHIP AND REMOVAL OF IMPROVEMENTS. All buildings,
landscaping and all other improvements, except telecommunications equipment, shall become the
property of the City upon expiration or termination of the Lease. In the event that the City
requires removal of such improvements after termination of the Lease, such removal shall be
accomplished at the sole expense of the Lessee and completed within 30 days after receiving
notice 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 lei~ upon City property after expiration
or termination of the lease, they shall, at the City's option, become the property of the City if not
removed by the Lessee upon 30 days written notice from the City.
10. CANCELLATION OF LEASE BY LESSEE.
A. All Leases are contingent upon the Lessee obtaining all necessary permits,
approvals and licenses for the proposed facilities. In the event that the Lessee is unable to obtain
all such permits, approvals and licenses, it may cancel its lease, and obtain a pro rata refund in any
rents paid, without further obligation by giving 30 days prior written notice to the City.
B. In the event that the holder ora Lease determines that the City property is
unsuitable for its intended purpose, the Lessee shall have the right to cancel the Lease upon 120
days written notice to the City. However, no prepaid rent shall be refundable.
11. COMPENSATION TO THE CITY.
A. This Lease is subject to the City's right, which is expressly reserved, to
annually fix a fair and reasonable compensation to be paid for the rights granted to the Lessee;
starting on the Commencement Date and on the first day of each month thereafter during the term
of the Lease, Lessee shall pay rent at a rate of Five Hundred Fifty and No/100 Dollars ($550.00)
per month, prorated for any partial months. Lessee shall have the right to add additional
equipment and antennas to the site with prior approval from the City; which approval shall not be
unreasonable withheld. Lessee agrees to pay additional monthly rent in the amount of Fifty and
LEASE AGREEMENT - 4
Paging Ne~wodc
No/100 Dollars ($50.00) for each additional antenna added to the initial configuration. Lessee
shall pay applicable leasehold excise tax.
At the beginning of each successive year thereal~er, the monthly rent shall automatically be
adjusted by the increase in the Consumer Price Index for All Urban Consumer Scale (CPI-U) U.S.
All City Average (1982-84--100), as published by the Bureau of Labor Statistics for the last
month for which statistics are posted prior to effective date of this agreement (the "Index").
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. The rental fee rate will be
reviewed annually.
12. AMENDMENT OF LEASE. Except as provided within the existing Lease,
letter of intent shall be required of any telecommunications carrier or other entity that desires to
expand, modify, or relocate its telecommunications facilities or other equipment located upon City
property. The City reserves the right to require a new lease application if the proposed
modifications entail substantial City review. If ordered by the City to locate or ralocate its
telecommunications facilities or other equipment on the City property, the City shall grant a lease
amendment without further applieation.
13. RENEWAL APPLICATION. A Lessee that desires to renew its Lease under
this Article shall, not more than one hundred twenty (120) days nor leas than sixty (60) days
before expiration of the current Lease, file an application with the City for renewal of its Lease
which shall include the following:
A. The information required pursuant to Section 4;
B. Any additional information required based upon elements of the current
Lease agreement between the City and the Lessee;
C. All deposits or charges required pursuant to City ordinances;
D. An application fee in the amount of Five Hundred and No/100 Dollars
($500.00).
14. OBLIGATION TO CURE AS A CONDITION OF RENEWAL. No Lease
shall be renewed until any ongoing violations or defaults in the Lessee's performance of the Lease
have been cured, or a plan detailing the corrective action to be taken by the Lessee has been
approved by the City.
LEASE AGREEMENT - 5
IS. IMPROVEMENTS. During the term of this Lease if Lessee wishes to expand
the initial configuration contained in Schedule A, Lessee will submit a new application pursuant to
Section 4. Compensation for the proposed expansion will be negotiated upon approval of the
application.
16. POLICE POWER. In accepting this Lease, the Lessee acknowledges that its
rights hereunder are subject to the legitimate rights of the police power of the City to adopt and
enforce general ordinances necessary to protect the safety and welfare of the public and it agrees
to comply with all applicable general laws enacted by the City pursuant to such power.
17. INTERFERENCE WITH THE PUBLIC WAYS. The Lessee shall not locate
or maintain its telecommunications facilities so as to unreasonably interfere with the use of the
public ways by the City, by the general public or by other persons authorized to use or be present
in or upon the public ways. All such facilities shall be moved by the Lessee, at the Lessee's cost,
temporarily or permanently, as determined by the City Public Works and Utilities Director.
18. REPAIR AND EMERGENCY WORK. In the event of an unexpected repair or
emergency, the Lessee may commence such repair and emergency response work as required
under the circumstances, provided the Lessee shall notify the City as promptly as possible, before
such repair or emergency work commences or as soon thereafter as possible if advance notice is
not practicable.
19. MAINTENANCE OF LEASE FACILITIES. The Lessee shall maintain its
facilities in good and safe condition and in a manner that complies with all applicable federal, state
and local requirements. Lessee shall not permit waste, damage, or injury to the premises
including any City property, public ways of the City, other ways or other property, whether
publicly or privately owned, located in, on or adjacent thereto. City shall have the exclusive right
to inspect the Lessee's telecommunications facilities and equipment at any time during the term of
this Lease to ensure compliance with the terms and conditions herein; Provided, however, Lessee
has the right to be present at all inspections ofLessee's telecommunications facilities and
equipment, and City shall give Lessee at least 24 hours prior notice of such intent.
20. SIGNAGE. Lessee shall display a current sign on telecommunication facilities
identifying Lessee and a 24 hour phone number.
21. RELOCATION OR REMOVAL OF FACILITIES. Within thirty (30) days
following written notice fi.om the City, the Lessee shall, at its own expense, temporarily or
permanently remove, relocate, change or alter the position of any telecommunications facilities
within the public ways or upon City property whenever the City Public Works & Utilities Director
shall have determined that such removal, relocation, change or alteration is reasonable necessary
for:
LEASE AGR~.'~vlENT - 6
A. The construction, repair, maintenance or installation of any City or other
public improvement in or upon the public ways; and
B. The operations of the City or other governmental entity in or upon the
public ways.
22. REMOVAL OF UNAUTHORIZED FACILITIES. Within one hundred twenty
(120) days following written notice bom the City, Lessee or any person who owns, controls or
maintains on behalf of Lessee any unauthorized telecommunications system, facility or related
appurtenances within the public ways or real properVd of the City shail, at its own expense,
remove such facilities or appurtenances from the public ways or property of the City. A
telecommunications system or facility is unauthorized and subject to removal in the following
circumstances:
A. Upon expiration or termination of the Lessea's Lease without renewal;
B. Upon abandonment of a facility within the public ways or real property of
the City. Any property of a Lessee shall be deemed abandoned ifleR in place 30 days after
expiration or termination of the Lease;
C. If the system or facility was constructed or installed without the prior grant
of a Lease;
D. If the system or facility was constructed or installed without the prior
issuance of a required City permits; and
E. If the system or facility was constructed or installed at a location not
permitted by the Lease.
Provided, however, that the City may, in its sole discretion, allow a Lessee, or other such
persons who may own, control, or maintain telecommunications facilities within the public ways
or property of the City to abandon such facilities in place. No facilities of any type may be
abandoned in place without the express written consent of the City. Any plan for abandonment or
removal of a Lessee's facilities must be first approved by the Public Works and Utilities Director,
and all necessary permits must be obtained prior to such work. Upon permanent abandonment of
the property of such persons in place, the property shall become that of the City, and such persons
shall submit to the City an instrument in writing, to be approved by the City Attorney, transferring
to the City the ownership of such property in which event, Lessee shall have no further
obligations or liability with respect to such facilities. The provisions of this Section shall survive
the expiration, revocation, or termination of the Lease granted hereunder.
23. EMERGENCY REMOVAL OR RELOCATION OF FACILITIES. The City
retains the right and privilege to cut or move any telecommunications facilities located within the
LEASE AGREEMENT - 7
P~ing ~etwo&
public ways of the City and upon City property, as the City may determine to be necessary,
appropriate or useful in response to any public health or safety emergency. The City shall not be
liable to Lessee, or any other party for any direct, indirect, or any other such damages suffered by
any person or entity of any type as a direct or indirect result oftbe City's actions under this
Section.
24. DAMAGE TO FACILITIES. Unless directly and proximately caused by the
willful, intentional or malicious acts by the City, the City shall not be liable for any damage to or
loss of any telecommunications facility upon City property or within the public ways of the City as
a result of or in connection with any public works, public improvements, construction, excavation,
grading, filling, or work of any kind on such City property or within the public ways by or on
behalf of the City.
25. RESTORATION OF PUBLIC WAYS, OTHE~R WAYS AND CITY
PROPERTY.
A. When the Lessee, or any person acting on its behal~ does any work in or
affecting any public ways, other ways or City property, it shall, at its own expense, promptly
remove any obstructions therefi'om and restore such ways or property to City construction
standards as adopted before the work was undertaken, unless otherwise directed by the City.
B. ffweather or other conditions do not permit the complete restoration
required by this Section, the Lessee shall temporarily restore the affected ways or property. Such
temporary restoration shall be at the Lessee's sole expense and the Lessee shall promptly
undertake and complete the required permanent restoration when the weather or other conditions
no longer prevent such permanent restoration.
C. The Lessee or other person acting in its behalf shall use suitable barricades,
flags, flagmen, lights, flares and other measures as required for the safety of all members of the
general public and to prevent injury or damage to any person, vehicle or property by reason of
such work in or affecting such ways or property.
D. The Public Works and Utilities Director shall be responsible for inspection
and final approval of the condition of the public ways, other ways, and City property following
any construction and restoration activities therein. Further, the provisions of this Section shall
survive the expiration, revocation, or termination of this Lease.
26. FACILITIES MAPS. The Lessee shall provide the City with a map or maps
accurately reflecting the horizontal and vertical location and configuration of all of their
telecommunications facilities within the public ways and upon City property. The Lessee shall
provide the City with updated maps upon request by the City.
LEASE AGREEMENT - 8
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27. BOOKS, RECORDS AND MAPS. All books, records, maps and other
documents, maintained by the Lessee with respect to its telecommunications facilities within the
public ways and upon City property shall be made available for inspection by the City at
reasonable times and intervals; Providea[ however, that nothing in this Section shall be construed
to require the Lessee to violate state or federal law regarding subscriber privacy, nor shall this
Section be construed to require the Lessee to disclose proprietary or confidentiai information
without adequate safeguards for its confidential or proprietary nature.
28. LEASED CAPACITY AND CO-LOCATION. Lessee shall have the fight, with
prior City approval, to sublet the premises consistent with this Lease; provided:
A. The Lessee shall furnish the City with a copy of any such proposed lease or
agreement between the Lessee and its sub-lessee;
B. The sub-lessee has complied, to the extent applicable, with the
requirements contained in this Lease;
C. The Lessee owns and/or controls the tower facility located on City
property;
D. The City and Lessee shall agree upon additional rental fee for sub-lessee
hook-ups pursuant to Section 11.
The City encourages co-location on existing telecommunications facilities and to that end
will not unreasonably withhold approval of sub-leases.
29. UTILITIES. Electricity is to be provided to the Premises and Site at Lessee's
initial expense and as outlined in Schedule A. Montldy lease payments to the City will be offset
until Lessee is reimbursed for installation costs of electricity. Ongoing monthly electric bills will
be paid by Lessee.
30. LICENSES AND TAXES. Upon commencement of the Lease, Lessee shall be
responsible for paying real or personal property, excise leasehold, business and occupation, and/or
other taxes or licenses which may in the future be assessed as a direct result of the Lessee's
operations at the telecommunications facilities described herein.
31. INSURANCE. The Lessee shail, as a condition of the Lease, secure and maintain
the following liability insurance policies insuring both the Lessee and the City, and its elected and
appointed officers, officials, agents, employees, representatives, engineers, consultants, and
volunteers as co-insureds against claims for injuries to persons or damages to property which may
arise from or in connection with the exercise of the fights, privileges, and authority granted to the
Lessee:
I~ASE AGREEMENT - 9
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A. Comprehensive general liability insurance, written on an occurrence basis,
with limits not less than:
(1) $2,000,000.00 for bodily injury or death to each person;
(2) $2,000,000.00 for property damage resulting from any one
accident; and
(3) $2,000,000.00 for all other types of liability.
B. Automobile liability for owned, non-owned and hired vehicles with a limit
of $2,000,000.00 for each person and $2,000,000.00 for each accident;
C. Worker' s compensation within statutory limits and employer's liability
insurance with limits of not less than $1,000,000.00;
D. Comprehensive form premises-operations, explosions and collapse hazard,
underground hazard and products completed hazard with limits of not less than $2,000,000.00;
E. The liability insurance policies required by this Section shall be maintained
by the Lessee throughout the term of the Lease, and such other period of time during which the
Lessee is operating without a Lease hereunder, or is engaged in the removal of its
telecommunications facilities. The Lessee shall provide an insurance certificate, together with an
endorsement naming the City, and its elected and appointed officers, officials, agents, employees,
representatives, engineers, consultants, and volunteers as additional insureds, to the City prior to
the commencement of any work or installation of any facilities pursuant to said Lease. Any
deductibles or self-insured retentions must be declared to and approved by the City. Payment of
deductibles and self-insured retentions shall be the sole responsibility of the Lessee. The
insurance certificate required by this Section shall contain a clause stating that coverage shall
apply separately to each insured against whom claim is made or suit is brought, except with
respect to the limits of the insurer's liability. The Lessee's insurance shall be primary insurance as
respects the City, its officers, officials, employees, agents, consultants, and volunteers. Any
insurance maintained by the City, its officers, officials, employees, consultants, agents, and
volunteers shall be in excess of the Lessee's insurance and shall not contribute with it;
F. In addition to the coverage requirements set forth in this Section, each such
insurance policy shah contain the following endorsement:
"It is hereby understood and agreed that this policy may not be canceled nor the
intention not to renew be stated until thirty (30) days at~er receipt by the City, by
registered mail, of a written notice addressed to the Administrative Services
Director of such intent to cancel or not to renew."
LEASE AGREEMENT - 10
Pagiag Iqetwedt
G. Within 30 days after receipt by the City of said notice, and in no event later
than 15 days prior to said cancellation or intent not to renew, the Lessee shall obtain and furnish
to the City replacement insurance policies meeting the requirements of this Section.
32. GENERAL INDEMNIFICATION. The Lessee hereby releases, covenants not
to bring suit and agrees to indemnify, defend and hold harmless the City, its elected and appointed
officials, officers, employees, agents, representatives, engineers, and consultants fi.om any and all
claims, costs, judgments, awards, or liability to any person, including claims by the Lessee's own
employees to which the Lessee might otherwise be immune under Title 51 RCW, arising fi'om
injury or death of any person or damage to property of which the negligent acts or omissions of
the Lessee, its agents, servants, officers, or employees in performing under this Lease are the
proximate cause. The Lessee further releases, covenants not to bring suit and agrees to
indemnify, defend and hold harmless the City, its elected and appointed officials, officers,
employees, agents, representatives, engineers, and consultants fi.om any and all claims, costs,
judgments, awards, or liability to any person including claims by the Lessee's own employees,
including those claims to with the Lessee might otherwise have immunity under Title 51 RCW,
arising against the City solely by virtue of the City's ownership or control of the rights-of-way or
other public properties, by virtue of the Lessee's exercise of the rights granted herein, or by virtue
of the City's permitting the Lessee's use of the City's rights-of-way or other public property,
based upon the City's inspection or lack of inspection of work performed by the Lessee, its agents
and servants, officers or employees in connection with work authorized on the City's property or
property over which the City has control, pursuant to this Lease, or pursuant to any other permit
or approval issued in connection with this lease. This covenant of indemnification shall include,
but not be limited by this reference, claims against the City arising as a result of the negligent acts
or omissions of the Lessee, its agents, servants, officers, or employees in barricading, instituting
trench safety systems or providing other adequate warnings of any excavation, construction, or
work in any public right-of-way or other public property in performance of work or services
permitted under this Lease.
Inspection or acceptance by the City of any work performed by the Lessee at the time of
completion of construction shall not be grounds for avoidance of any of these covenants of
indemnification. Said indemnification obligations shall extend to claims which are not reduced to
a suit and any claims which may be compromised prior to the culmination of any litigation or the
institution of any litigation.
In the event that the Lessee refuses the tender of defense in any suit or any claim, said
tender having been made pursuant to the indemnification clauses contained herein, and said refusal
is subsequently determined by a court having jurisdiction (or such other tribunal that the parties
shall agree to decide the matter), to have been a wrongful refusal on the part of the Lessee, then
the Lessee shall pay all of the City's costs for defense of the action, including all reasonable expert
witness fees and reasonable attorneys' fees and the reasonable costs of the City, including
reasonable attorneys' fees of recovering under this indemnification clause.
LEASE AGREEMENT - 11
Pa~i~ ~e,v,~
In the event of liability for damages arising out of bodily injury to persons or damages to
property caused by or resulting bom the concurrent negligence of the Lessee, and the City, its
officers, employees and agents, the Lessee's liability hereunder shall be only to the extent of the
Lessee's negligence. It is fimher specifically and expressly understood that the indemnification
provided herein constitutes the Lessee's waiver of immunity under Title 51 RCW, solely for the
purposes of this indemnification. This waiver has been mutually negotiated by the parties.
The provisions of this Section shall survive the expiration or termination of this Lease
agreement.
Notwithstanding any other provisions of this Section, the Lessee assumes the risk of
damage to its fac'titles located in the City's public ways, fights-of-way, easements, and property
from activities conducted by the City, its officers, agents, employees, and contractors. The Lessee
releases and waives any and all claims against the City, its officers, agents, employees, or
contractors for damage to or destruction of the Lessee's fac'flities caused by or arising out of
activities conducted by the City, its officers, agents, employees, and contractors, in the public
ways, fights-of-way, easements, or property subject to this Lease, except to the extent any such
damage or destruction is caused by or arises from the sole negligence or any willful or malicious
action on the part of the City, its officers, agents, employees, or contractors. The Lessee further
agrees to indemnify, hold harmless and defend the City against any claims for damages, including,
but not limited to, business interruption damages and lost profits, brought by or under users of the
Lessee's facilities as the result of any interruption of service due to damage or destruction of the
user's facilities caused by or m/sing out of activities conducted by the City, its officers, agents,
employees, or contractors, except to the extent any such damage or destruction is caused by or
arises from the sole negligence or any willful or malicious actions on the part of the City, its
officers, agents, employees, or contractors.
33. CONSTRUCTION AND COMPLETION BOND. A performance bond written
by a corporate surety acceptable to the City equal to at least 100% of the estinmted cost of
constructing the Lessee's telecommunications facilities within the public ways of the City or upon
City property shall be deposited before construction is commenced.
A. Except as provided below, the construction bond shall remain in force until
60 days after substantial completion of the work, as determined by the City, including restoration
of public ways and other property affected by the construction.
B. The construction bond shall guarantee, to the satisfaction of the City:
(1) Timely completion of construction;
(2) Construction in compliance with applicable plans, permits, technical
codes, and standards;
LEASE AGREEMENT - 12
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(:5) Proper location of the facilities as approved by the City;
(4) Restoration of the public ways and other public or private property
disrupted, damaged, or otherwise affected by the construction. The
construction bond shall warrant said restoration work for a period
of 1 year;
(5) The submission of'as-built' drawings after completion of the work
as required by this Chapter; and
(6) Timely payment and satisfaction of ali claims, demands or liens for
labor, material or services provided in connection with the work.
34. ASSIGNMENTS OR TRANSFERS OF LEASE. Ownership or control of a
Lease may not, directly or indirectly, be transferred, assigned or disposed of by sale, lease,
merger, consolidation or other act of the Lessee, by operation of law or othen¥ise, without the
prior written consent of the City, which consent shall not be unreasonably withheld or delayed,
except as expressed by ordinance and then only on such reasonable conditions as may be
prescribed therein.
A. No Lease shall be assigned or transferred in any manner within twelve (12)
months after the initial grant of the Lease, unless othendse provided.
B. Absent extraordinary and unforeseeable circumstances, system or integral
part of a system shall be assigned or transferred before construction of the telecommunications
facility has been completed.
C. The Lessee and the proposed assignee or transferee of the system shall
provide and certify the following information to the City not less than sixty (60) days prior to the
proposed date of transfer:
(1) Complete information setting forth the nature, terms and condition
of the proposed transfer or assignment;
(2) All information required of a lease applicant pursuant to Section 4
with respect to the proposed transferee or assignee;
(3) Any other information reasonably required by the City; and
(4) An application fee set by Section 4.
LEASE AGREEMENT - 13
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1). No transfer shall be approved unless the assignee or transferee has the
legal, technical, financial, and other requisite qualifications to own, hold and operate the
telecommunications facility pursuant to this Lease.
E. Unless otherwise provided in this Lease, the Lessee shall reimburse the
City for all direct and indirect costs and expenses reasonably incurred by the City in considering a
request to transfer or assign this Lease. No approval shall be deemed approved until all such
costs and expenses have been paid.
F. Any transfer or assignment of the lease, system, or integral part of a system
without prior written approval of the City under this Section or pursuant to the Lease shall be
void and is cause for revocation of the lease.
35. TRANSACTIONS AFFECTING CONTROL OF LEASE. Any transactions
which singularly or collectively result in a change of 50% or more of the ownership or working
control of the Lessee, of the ownership or working control of the telecommunications facility, of
the ownership or working control of affiliated entities having ownership or working control of the
Lessee or of a telecommunications facility, or of control of the capacity or bandwidth of the
Lessee's telecommunication system, facilities or substantial parts thereof, shall be considered an
assignment or transfer requiring City approval pursuant to Section 34 hereof. Transactions
between affiliated entities are not exempt from City approval. The Lessee shall promptly notify
the City prior to any proposed change in, or transfer of, or acquisition by any other party of
control of Lessee's company. Every change, transfer, or acquisition of control ora Lessee's
company shall cause a review of the proposed transfer. In the event that the City adopts a
resolution or other appropriate order denying its consent and such change, transfer or acquisition
of control has been effected, the City may cancel the Lease. Approval shall not be required for
mortgaging purposes or if said transfer is from the Lessee to another person or entity controlling,
controlled by, or under common control with the Lessee.
36. REVOCATION OR TERMINATION OF LEASE. The Lease granted by the
City to use or occupy public ways of the City or City property may be terminated for the
following reasons:
A. Lessee's construction or operation in the City or in the public ways of the
City or upon City property without proper City authorization;
B. Lessee's construction or operation at an unauthorized location;
C. Unauthorized substantial transfer of control of the Lessee;
l). Unauthorized assignment of Lease;
LEASE AGREEMENT - 14
E. Unauthorized sale, assignment or transfer of Lessee's Lease, assets, or a
substantial interest therein;
F. Misrepresentation by or on behalf of the Lessee in any application or
written statement upon which the City relies in making the decision to grant, review or amend
said Lease;
G. Abandonment of telecommunications facilities in the public ways or upon
City property;
lt. Failure to relocate or remove facilities as required in this Lease;
L Failure to pay taxes, compensation, fees or costs when and as due the City;
J.Insolvency or bankruptcy of the Lessee; and
Violation of any material provision or term of this lease.
37. NOTICE AND DUTY TO CURE. In the event that the City believes that
grounds exist for revocation of this Lease, the Lessee shall be given written notice of the apparent
violation, default, or noncompliance, providing a short and concise statement of the nature and
general facts of the violation or noncompliance, and providing the Lessee a reasonable period of
time not exceeding 30 days to furnish evidence:
A. That corrective action has been, or is being actively and expeditiously
pursued, to remedy the violation, default or noncompliance;
B. That rebuts the alleged violation, default or noncompliance; and
C. That it would be in the public interest to impose some penalty or sanction
less than revocation.
38. HEARING. In the event that the Lessee fails to provide evidence reasonably
satisfactory to the City as provided in Section 37 hereof~ the City shall refer the apparent
violation, default or non-compliance to the City Council. The City Council shall provide the
Lessee with notice and a reasonable opportunity to be heard concerning the matter.
39. STANDARDS FOR REVOCATION OR LESSER SANCTIONS. If the City
Council determines that a Lessee willfully violated or failed to comply with any of the provisions
of this Lease or through willful misconduct or gross negligence failed to heed or comply with any
notice given the Lessee by the City under the provisions of this Lease, then the Lessee shall, at the
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
LEASE AGREEMENT - 15
Paging Network
Council may elect, in lieu of the above and without any prejudice to any of its other legal rights
and remedies, to pursue other remedies, including obtaining an order fi.om the Superior Court
having jurisdiction compelling the Lessee to comply with the provisions of this Lease, and to
recover damages and costs incurred by the City by reason of the Lessee's failure to comply. The
City Counc'fl shall utilize the following factors in analyzing the nature, c'trcumstances, extent, and
gravity of the violation and in making it's determination under this Section:
A. Whether the misconduct was egregious;
B. Whether substantial harm resulted;
C. Whether the violation was intentional;
1). 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.
40. NOTICE OF ENTRY ON PRIVATE PROPERTY. If directed by the City, at
least 24 hours prior to entering private property or streets or public easements adjacent to or on
such private property to perform new construction or reconstruction, a notice indicating the
nature and location of the work to be performed shall be physically posted, at no expense to the
City, upon the affected property by the Lessee. A door hanger may be used to comply with the
notice and posting requirements of this Section. The Lessee shall make a good faith effort to
comply with the property owner/resident's preferences, if any, on location or placement of
underground installations (excluding aerial cable lines utilizing existing poles and existing cable
paths), consistent with sound engineering practices. Provided, however, that nothing in this Lease
shall permit the Lessee to unlawfully enter or construct improvements upon the property or
premises of another.
41. SAFETY REQUIREMENTS. The Lessee, in accordance with applicable
federal, state, and local safety requirements shall, at all times, employ ordinary care and shall
install and maintain and use commonly accepted methods and devices for preventing failures and
accidents which are likely to cause damage, injury, or nuisance to the public and/or workers. All
structures and all lines, equipment and connections in, over, under, and upon the streets,
sidewalks, alleys, and public ways or places ora Lease area, wherever situated or located, shall at
all times be kept and maintained in a safe, suitable condition, and in good order and repair. The
City reserves the general right to see that the telecommunications fac'flity of the Lessee is
constructed and maintained in a safe condition. Ifa violation of the National Electrical Safety
Code or other applicable regulation is found to exist by the City, the City will, after discussions
with the Lessee, establish a reasonable time for the Lessee to make necessary repairs. If the
LEASE AGREEMENT - 16
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repairs are not made within the established time flame, the City may make the repairs itself or
have them made and collect all reasonable costs thereof from the Lessee.
42. LIENS. Lessee shall not permit any lien to be imposed upon the property of the
City as a result of work done by or on behalf of user and shall indemnify and hold the City
harmless against any and all expenses, including reasonable attorney's fees and court costs in
connection with any such lien.
43. MISCELLANEOUS.
A. This agreement shall be governed by the laws of the State of Washington.
B. 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, witNn ten (10) days at, er 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: LESSF.~;
City of Bremerton Paging Network of Oregon, Inc.
Administrative Services Director dba Paging Network of Seattle
239 Fourth Street 13801 Eastgate Way, Suite 150
Bremerton, WA 98337 Bellevue, WA 98005
44. NONDISCRIMINATION. Lessee shall not discriminate in employment or
services to the public on the basis of race, color, national origin, sex, religion, age, marital status
or disability, except employment actions based on a bona fide occupational qualification.
LEASE AGREEMENT - 17
PAGING NETWORK OF OREGON, INC.
Date: C~'
G. BP. AD TERRY
Vice President, General Manager
CITY OF BREMERTON
Date:
L;~qN S. HORTON, Mayor
DEPARI~MENTT~L APPROVAL:
W. Eugene Sampley, ~ of Pubhc Works & Utilities
IAN R. SIEVERS, City Attorney
//
LEASE AGREEMENT - 18
State of Washington )
County of Kitsap )
On this ~ ~ day of~ 19 ~ 7 , personally appeared Lynn
S.
Horton to me known to be the Mayor of the City ofBremerton, a municipal corporation, that
executed the within and foregoing instrument, and acknowledged said instrument to be the free
and voluntary act and deed of said municipal corporation, for the uses and purposes therein
mentioned, and on oath stated that she was authorized to execute said instrument.
In witness whereof I have hereunto set my hand and affixed my official seal the day and
year first above written.
Notary l~blic ~'and"for the StYe of Washington
Residing at ~.-~z..~..~ 7~-.~
My commission expires: ~5--/£- 5;o~
KECEIVED FOR FILING-:
KA~..~i' L. MoCLUSKEY, City Cleric
LEASE AGREEMENT - 19
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October 29, 1997
City of Bremerton
Tax and License Division
239 4th Street
Bremerton, Washington 98337
City of Bremerton:
Paging Network of Seattle proposes to lease tower space on an existing
telecommunications tower and ground space in a existing building, both structures
located on City of Bremerton property at 1925 East Cheryl Street, Kitsap County, for the
purpose of installing, operating and maintaining telecommunications equipment for
wireless, two-way paging.
The proposed telecommunications equipment to be installed and the locations of existing
telecommunication equipment and facilities are described in the attached exhibits.
Electricity is available at the site and will be provided by the City of Bremerton. Their
are no telephone facilities on the property.
A legal description of the City owned property is also included in the attached exhibits.
The identities of the applicant and the employee responsible for lease accuracy are:
Paging Network of Oregon, Inc.
dba Paging Network of Seattle
13801 Eastgate Way / Suite 150
Bellevue, WA 98005
G. Brad Terry
Vice President, General Manager
Paging Network of Seattle thanks The City of Bremerton for their time and
consideration in this matter.
Cordially,
Nell Hattenburg, The TEA Group, Agent for Paging Network of Seattle