HomeMy WebLinkAbout3904
Contract Number: 3904
Vendor: TOWERCO (formerly SPRINT)
Subject: Telecommunication Facility - Olympus Drive
Department: PW Admin
File Class: LEG 16-3
Begin Date: 05/01/1998
End Date: 04/05/2013
Review Date: 01/01/2013
Vault Date:
Comments: 5 yr renewal w/ Sprint approved 12/07
Assignment & Assumption of Lease by TowerCo 9/08
EXECUTION COPY
Prepared by and after recording return to: Notice address for Assignee:
TowerCo Acquisition LLC Tower Entity 2 LLC
5000 Valleystone Drive c/o TowerCo Acquisition LLC
Cary, North Carolina 27519 5000 Valleystone Drive
Cary, North Carolina 27519
ASSIGNMENT AND ASSUMPTION OF LEASE
THIS ASSIGNMENT AND ASSUMPTION OF LEASE ("Assil!nment") is made,
entered into and effective as of this ~ day of September, 2008 ("Transfer Date"), by and
between:
Sprint Spectrum Realty Company, L.P., a Delaware limited partnership, having an address at
6391 Sprint Parkway, Mailstop KSOPHTOI01-Z2650, Overland Park, Kansas 66251-2650
("Sprint Spectrum Realty"),
Sprint Spectrum L.P., a Delaware limited partnership, having an address at 6391 Sprint Parkway,
Mailstop KSOPHT0101-Z2650, Overland Park, Kansas 66251-2650 ("Sprint Spectrum"),
Sprint Spectrum Equipment Company, L.P., a Delaware limited partnership, having an address at
6391 Sprint Parkway, Mailstop KSOPHTOlOI-Z2650, Overland Park, Kansas 66251-2650
("SDrint Spectrum Equipment"; together with Sprint Spectrum Realty and Sprint Spectrum,
"Assil!nors"), and
Tower Entity 2 LLC, a Delaware limited liability company, having an address at 6391 Sprint
Parkway, Mailstop KSOPHTOlOI-Z2650, Overland Park, Kansas 66251-2650 ("Assimee" or
"Tower Entity").
WITNESSETH:
WHEREAS, that certain Purchase and Sale Agreement dated as of July 23, 2008 (as
amended, modified and supplemented from time to time, the "Purchase Al!reement"), was
entered into by and between TowerCo Acquisition LLC, the parties identified as sellers therein,
Sprint Spectrum, as agent for such sellers and the "Tower Entities" (including Assignee) that
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SEA TILE QWEST - BREOO1
become parties thereto. All capitalized terms not otherwise defined in this Assignment shall have
the meanings ascribed thereto in the Purchase Agreement;
WHEREAS, Sprint Spectrum Realty is either the tenant or a successor in interest to the
tenant, as the case may be, under that certain Ground Lease (as defined on Exhibit "A");
WHEREAS, each of Sprint Spectrwn Realty, Sprint Spectrum, and Sprint Spectrum
Equipment owns or may own one or more items of the Assigned Property (as hereinafter
defined);
WHEREAS, Sprint Spectrum Realty, Sprint Spectrum, Sprint Spectrum Equipment and
Tower Entity are Affiliated entities;
WHEREAS, the parties desire to assign the Ground Lease and the Assigned Property (as
defined herein) as set forth more particularly herein;
In consideration of the mutual covenants contained in this Assignment, and other good
and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereby agree as follows:
I.
Assignments
A. Assignment to Sprint Spectrum
1. Assi~nment. Sprint Spectrum Realty does hereby convey, assign, transfer and
distribute to Sprint Spectrum all of its right, title, claim and interest in, to and under the Ground
Lease together with the leasehold, license or other interest created thereunder.
2. Appurtenant Property. Easements. and Improvements. Sprint Spectrum Realty
hereby grants, bargains, conveys, transfers and distributes to Sprint Spectrum all of Sprint
Spectrum Realty's right, title and interest, if any (subject to Permitted Liens) in and to (i) all
appurtenant property and rights relating to the land demised under the Ground Lease (the "Real
Property"), (ii) all easements and rights of way benefiting the Real Property, (iii) all Towers
located on the Real Property and (iv) all Tower Related Buildings and Equipment located on the
Real Property and all other Tower Related Assets located on or relating to the Real Property;
excluding, in the case of clauses (i) through (iv), any and all Excluded Assets (the property set
forth in clauses (i) through (iv), collectively, but excluding any and all Excluded Assets, the
"Assigned Property").
3. Acceptance of Assignment. Sprint Spectrum hereby accepts the foregoing
assignment of the Ground Lease and conveyance of Assigned Property and assumes all of the
Assumed Liabilities arising under or pursuant to the Ground Lease.
B. Assignment to Sprint Spectrum Equipment
1. Assignment. Immediately following the assignments, transfers and conveyances
described in Section I(A), Sprint Spectrum does hereby convey, assign, transfer and contribute to
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Sprint Spectrum Equipment all of its right, title, claim and interest in, to and un~er the Ground
Lease together with the leasehold, license or other interest created thereunder.
2. Appurtenant Property. Easements. and Improvements. Immediately following the
assignments, transfers and conveyances described in Section leA), Sprint Spectrum hereby
grants, bargains, conveys, transfers and contributes to Sprint Spectrum Equipment all of Sprint
Spectrum's right, title and interest (subject to Permitted Liens) in and to the Assigned Property.
3. Acceptance of Assignment. Sprint Spectrum Equipment hereby accepts the
foregoing assignment of the Ground Lease and conveyance of Assigned Property and assumes
all of the Assumed Liabilities arising under or pursuant to the Ground Lease.
C. Assignment to Tower Entity
1. Assignment. Immediately following the assignments, transfers and conveyances
described in Section I(B), Sprint Spectrum Equipment does hereby convey, assign, transfer and
contribute to Tower Entity all of its right, title, claim and interest in, to and under the Ground
Lease together with the leasehold, license or other interest created thereunder.
2. Appurtenant Property. Easements. and Improvements. Immediately following the
assignments, transfers and conveyances described in Section I(B), Sprint Spectrum Equipment
hereby grants, bargains, conveys, transfers and contributes to Tower Entity all of Sprint
Spectrum Equipment's right, title and interest (subject to Permitted Liens) in and to the Assigned
Property .
3. Acceptance of Assignment. Tower Entity hereby accepts the foregoing
assignment of the Ground Lease and conveyance of Assigned Property and assumes all of the
Assumed Liabilities arising under or pursuant to the GroWld Lease.
II.
Miscellaneous
1. Recitals. The recitals set forth above are incorporated herein by reference and
made a part of this Assignment.
2. Binding Effect. This Assignment will be binding on and inure to the benefit of
the parties herein, their heirs, executors, administrators, successors-in-interest and assigns.
3. Governing Law. This Assignment and its validity, construction and performance
will be governed by and construed in accordance with the intemallaws of the State of Delaware,
without regard to principles of conflicts oflaws, except to the extent mandatorily governed by
the laws of the state in which the Real Property is located.
4. Counterparts. This Assignment may be executed in two or more counterparts,
each of which will be deemed an original, but all of which together will constitute one and the
same instrument.
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5. Purchase Agreement. This Assignment is intended to implement the provisions of
the Purchase Agreement and shall not be construed to enhance, extend or limit the rights or
obligations of Assignors or Assignee (it being understood that Assignee will not be deemed to be
assuming any Excluded Liabilities). No provision of this Assignment shall in any way modify
the express provisions (including without limitation the warranties, representations, covenants,
agreements, conditions or any of the obligations and indemnifications of the parties hereto with
respect to the subject matter of the Purchase Agreement) set forth in the Purchase Agreement.
To the extent any provision of this Assignment is inconsistent with the Purchase Agreement, the
provisions of the Purchase Agreement shall control.
6. Amendment. This Assignment may not be amended, waived or otherwise
modified except by a written instrument signed by the parties hereto.
THIS ASSIGNMENT has been executed by the parties hereto on the Transfer Date.
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EXECUTION COPY
Witnesses: Sprint Spectrum Realty Company, L.P.
a Delaware limited partnership
Bt:;M~1Cf&
Print Name: John . Buchert
Title: Assistant Secretary
State of New York
COWlty of New York
The fore~ow~~t was acknowledged before me this 1J. day of September, 2008, by
, 0 . uc an Assistant Secretary of Sprint Spectrum Realty Company, L.P.,
a Delaware limited partnership, on behalf of the company. The above-named individual is
personally known to me or has produced a driver's license or passport as id7ion. ~
iJ-~ ~
N'~tary Public MIMI,- flINIw~
Pnnt Name: .., &.
My Commission Expires:QI.o'1llle:.NIlIo::.-r:f 2011
QMwdl. - ·
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Witnesses: Sprint Spectrum L.P.
a Delaware limited partnership
By~Jr:~
N.ame:. ~o'M1 F. Bt.c<
PrintNam~~w Title: AssIstant ecretary
State of New York
County of New York
The foregoi~~t~ment was acknowledged before me this -!l day of September,
2008, by J. chert an Assistant Secretary of Sprint Spe trum L.P., a Delaware
limited partnership, on behalf of the company. The above-named individual is personally known
to me or has produced a driver's license or pp- ~~ ~
~tary Public MIMI QNE.FIIf.DlNI)
PrInt Name: __
My Commission Expires: ~ 1~1~~ecu:r:
CInl' L' 1 _3 .2011
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SEA TILE QWEST - BREOO I
Witnesses: Sprint Spectrum Equipment Company, L.P.
a Delaware limited partnership
~~-kj
Name: John F. Buchert
PrmtN~~ Title: Assistant Secretary
State of New York
County of New York
The foregoi~~~~~was acknowledged before me this n day of September,
2008, by o. an Assistant Secretary of Sprint Spectrum Equipment
Company L.P., a Delaware limited partnership, on behalf of the company. The above-named
individual is personally known to me or has produced a driver's license or passport as
identification. Ifi- v---J
Notary Public ....., 811II_" YoItl
Print Name:
My Commission Expi~i..~J:Ic:-e::= 2011
.
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Witnesses: TOWER ENTITY 2 LLC,
a Delaware limited liability company
~~ ~~~
~ Title:Assistant Secretary
Print Name:. Qo'i)1-tB
.
State of New York
County of New York
The foregoi~In~~= was acknowledged before me this!1day of September, 2008, by
JO . UC an Assistant Secretary of Tower Entity 2 LLC, a Delaware limited
liability company, on behalf of the company. The above-named individual ~ersona1IY knOn
to me or has produced a driver's license or pal~P If'---Y
Notary Public ~
Print Name: .
My Commission Expires: III.
~llblr 3 .2011
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EXHIBIT" A"
The G round Lease
That certain lease agreement (the "Ground Lease") dated December 12,2007 by and
between CITY OF BREMERTON, as lessor, and Sprint Spectrum Realty Company, L.P.,
successor in interest to Sprint Spectrum L.P., as lessee, with respect to that certain parcel
of real property ("Real Propertv") located in the County of Kitsap, State of W A, which
Real Property is more particularly described on Exhibit "B" attached hereto. The
Memorandum of the Ground Lease is recorded in Book , Page
or as Official Document/Instrument Number ,m
the Register's office of Kitsap County, State of W A.
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SEA TILE QWEST - BREOO)
Exhibit B
Real Property
Landlord 1
,
i
MEMORANDUM OF ASSIGNMENT AND ASSUMPTION
Exhibit A-I
Legal Description of Premises
As set faith in Attacbmenf'~A" attached hereto and incorporated herein. by this reference. ' .l........
Also known as: 3027 Olympus Drive, Bremerton~ W A 98310
BREOOl . "
.... .. ~ # " . .; J.: J '..~ ..'~'-.
WA2023 SEA TILE QWEST - BREOO1
Exhibit B
Real Property
.- . 8Re.col
~~"~:(:'(:.' . ..:~'x~~., ,
r'o"},- ~ ,~ r.!:fj' ...... ~ EXlllBIT A-I
ATTACHMENT A I
order No. J.172~5
~ DESCRIP1'I1JN ~
pl\...~CBL I. ~
A portion of the Nort.neast ~..rter of ~ N0r1;hwe6t quar~.r oE
sect.i.on 12 '. T~h1p 24 Norch, Rimg,e 1 East. 11.1(., IUtl,'lap
C;;Iunty. W&i:hil!lgton, de$(:d.bed Q3 tQl~WB;
P'~QIlI t~ ~e:c ca.rner between S"c:t.iaolil 1 and 12 rim Nc!lrth
S9R97'30- W.et 50 fbetj
~b~ 9.o\1.tb ,2"O~'29" West 30 feel:. to tlw iotersectiOn Ci[ the
sQUt'tllll&J:g-in of East. 31st seL'..\; .nd a H.za:e pa'%'8.11el 1;0 ~ 50
feat d:il:tant ~rom the East line oE ...il;\ :N"ort~~ quareer t;JE.
. ~d:i.Q" 12. the '1'.rW! E'ioint Qf aegi.)m1Jlg,
tbenoe ~th 1~O~'29. "e~t 591.8B fe~&J
~ .~~ 8l,1"S~' 07- West iJQ .110 :f"e~tf
the~ ~h <1"02' J.:r- West 34.&.56 feel;.;
~ence ~~ eSG~2'07. Nest 6i.6B f~~; -
t;b.~e l'lortll. Ot"SS'S6" Rei,,!; 81.05. .feecr
t:~ ~b Sg..O',f,' 57" Wesr: 385..29 feet;
tblml;e 1Ibtt;h O;L"48'SO" kel; 1J.7...23 f'-I: ti;i ill POiA~ ~ ChI!
South llI:iii:9in Qf Base .11sc Sr:rct8~:
~~I'(fttb- ~""41~Q5" Ell," 378.65 .feet. t.4 ~ begtn~ o~ a
~e ~~ ~ rl.gh,l= ha~11'19 a ~;ldius of ~84~. 86 .f-.te and
~ing ~ ang-~ of .06"05'25",
thence almsg said curv.. .196.63 feet to the J:lQlat of tolJigenti
tban~ SOUth 89.07'30. a.at ~e.~4 fe.t to the ~. ~1~~ of
ileg;inDin~n
b:~ Zlha lifen 30 tl;ljilt; for $~J:$ Avenue u diedi.cated. by the
Ci.tyof Bremert:on: by @erQ recorded UDdaIt= HIP.X:>'rdin~ lb. 512:9991
sitUilte in thlt city Qf BremenOD, KlUllEf ~ty. w.lJh,.i~.
PAR<:BL II t
PrOlJ! t,be ~theast coz:n~ Qf. the .Korthellsb quarter of the
. ir~r: qgarter ~fSecti.dn 12, TOWR~bitJ 24 1for\:b, ltaJIgl: 1
.~Mt, ".fl.;
dlenee.-arth 2"03'U'" ~t alcmg ~.~ ai24 ~~.~
line ~ Slliet:imi.12, 4~e,!S6 taRej
~ ~ B70SlP"411" Weiltso,or; t"~i:. tp tl;\e .'n:Qe Polu~ Q.t
:Bti:g+~;ngJ '. . "
t~ ~~h 2.*(lil.'31" Nest: 4.8.S' ~..
thence i(orc:h SS'-G3'2S>> West: 220.00 fee'l::;.
thence IrOrth 1"57'51" ~" 48.56 leer;
t~ l!QnIth 2.01)'3'::1.8" ~t: 3.f)D.OQ ~~i
1t.~ S~b 87"56'42" Bat 210~IU) .ra.l:.~
tIi~ ~J1. 2-1,)3'18. ~ 3"00.00"~ to l:Ije TrtIe 1Imxtl:. of
.~eg~zrhlm
sitUate in the Cit)" :;i~ .9~.Kib~~ ~, wa.~On.
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WA2023 SEATTLE QWEST - BREOO1
'lJefaware PAGE 1
'lfie :First State
I, HARRIET SMITH WINDSOR, SECRETARY OF STATE OF THE STATE OF
DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT
COPY OF THE CERTIFICATE OF MERGER, WHICH MERGES:
"TOWER ENTITY 2 LLC", A DELAWARE LIMITED LIABILITY COMPANY,
WITH AND INTO "TOWERCO ASSETS LLC" UNDER THE NAME OF
"TOWERCO ASSETS LLC", A LIMITED LIABILITY COMPANY ORGANIZED AND
EXISTING UNDER THE LAWS OF THE STATE OF DELAWARE, AS RECEIVED
AND FILED IN THIS OFFICE THE 'lWENTY-THIRD DAY OF SEPTEMBER, A.D.
2008, AT 2:09 O'CLOCK P.M.
~~ ~9f-~
Harriet Smith Windsor, Secretary of State
4595986 8100M AUTHENTICATION: 6869006
080978125 DATE: 09-23-08
stats oL Delaware
Secre~ oL Stats
Divi.sion 0 Co~ation.s
Deliwred 02:08 09/23/2008
FILED 02: 09 PM 09/23/2008
SRV 080978125 - 4595986 FILE
CERTIFICATE OF MERGER
OF
TOWER ENTITY 2 LLC
(a Delaware limited liability company)
AND
TOWERCO ASSETS LLC
(a Delaware limited liability company)
The undersigned, a limited liability company fonned and existing under
and by virtue ofthe Delaware Limited Liability Company Act DOES HEREBY
CERTIFY THAT:
1. The name and state of fonnation of each of the constituent limited
liability companies to the merger are as follows;
Name State of Formation
Tower Entity 2 LLC Delaware
TowerCo Assets LLC Delaware
2. An Agreement and Plan of Merger between the parties to the
merger has been approved, adopted and executed by each constituent limited liability
company in accordance with the requirements of Section 18-209 of the Delaware Limited
Liability Company Act.
3. The name of the surviving limited liability company shall be
TowerCo Assets LLC.
4. The Certificate of Formation of TowerCo Assets LLC as now in
force and effect, shall continue to be the Certificate of Formation of said surviving
limited liability company until amended and changed pursuant to the provisions of the
Delaware Limited Liability Company Act.
5. The merger shall be effective upon the filing of this Certificate of
Merger with the Secretary of State of the State of Delaware.
6. The executed Agreement and Plan of Merger is on file at the office
of the surviving company, the address of which is c/o TowerCo II Holdings LLC, 5000
Valleystone Drive, Cary, North Carolina 27519.
DocI; USU319521vl
2
7. A copy of the Agreement and Plan of Merger will be furnished by
the surviving company, on request and without cost, to any member of any constituent
/
limited liability company.
Executed as of September 23, 2008.
TOWER eo ASSETS LLC
By: Oa.M_ Q. -bJ, ~
Name: Daniel Hunt
Title: Authorized Person
0acI!. USI :S339S21 v I
Contract Number 3904
Vendor SPRINT (formerly QWEST)
Subject Telecommunication Facility - Olyrnpus Drive
Department PW Admin
Status Code TEL File Class LEG 16-3
Amount $
Begin Date 05/01/1998
End Date 04/05/2013
Review Date 01/01/2013
Insurance GL $2000000.00 Insurance Total $4000000,00
AL $2000000,00 Insurance Review Date 04/01/2006
E&O $
Comments 5 year renewal approved 12/07
TELECOMMUNICATIONS FACILITIES
LEASE AGREEMENT
TIDS LEASE AGREEMENT entered into by and between the City of Bremerton, a
municipal corporation duly organized and existing under the laws of the State of Washington, as
Lessor (hereinafter referred to as "City") and Sprint Spectrum Re81~vmpany, L.P., a Delaware
limited partnership (hereinafter referred to as "Lessee").
WIT N E SSE T H:
1. PREMISES, The City leases to the Lessee real property located at 3027 Olympus
Drive, NE, City of Bremerton, County of Kitsap, State of Washington for housing, installing,
constructing, operating and maintaining certain telecommunications facilities, legally described
and/or depicted in Schedule A ("Premises"). Lessee accepts the Premises for such purpose, subject
to the considerations, terms and conditions specified in this Telecommunications Facilities Lease
Agreement (hereinafter referred to as "Lease").
2. DEFINITIONS. For the purpose of this Lease, and the interpretation and
enforcement thereof, the following words and phrases shall have the following meanings:
"Person" means and includes corporations, companies, associations, joint stock companies
or associations, firms, partnerships, limited liability companies and individuals and includes their
lessors, trustees and receivers;
"Public street" means any highway, street, alley or other public right of way for motor
vehicle travel under the jurisdiction and control of the City which has been acquired, established,
dedicated or devoted to highway purposes, including forest access roads;
"Public way" means and includes all public streets and utility easements, as those terms are
defined herein, now or hereafter owned by the City, but only to the extent of the City's right, title,
interest or authority to grant a permit or lease to occupy and use such streets and easements for
telecommunications facilities;
"Telecommunications carrier" means and includes every person that directly or indirectly
owns, controls, operates or manages plant, equipment or property within the City, used or to be used
for the purpose of offering telecommunications service;
"Telecommunications facilities" means the plant, equipment and property, including but not
limited to, cables, wires, conduits, ducts, pedestals, antennae, towers, electronics, equipment storage
structures and other appurtenances used or to be used to transmit, receive, distribute, provide, house
or offer telecommunications services;
LEASE AGREEMENT - 1 Sprint Site ill #SE63XC400
"Telecommunications provider" means and includes every person who provides
telecommunications services over telecommunications facilities without any ownership or
management control of the facilities;
"Telecommunications service" means the providing or offering for rent, sale or lease, or in
exchange for other value received, of the transmittal of voice, data, image, graphic and video
programming information between or among points by wire, cable, fiber optics, laser, microwave,
radio, satellite or similar facilities, with or without benefit of any closed transmission medium.
"Utility easement" means any easement owned by the City and acquired, established,
dedicated or devoted for public utility purposes not inconsistent with telecommunications facilities.
3. USES AND PURPOSES. Lessee shall have the use and occupancy of the Premises
for the purpose of transmission and reception of telecommunication and signals in any and all
frequencies using real property and telecommunications facilities approved in Schedule A. Lessee
shall be responsible for adherence to all federal, state and local regulations pertaining to the
operation of a communications facility.
Lessee shall have the right, at its expense, to erect and maintain on the Premises
improvements, personal property and facilities, as described in Schedule A after obtaining required
permits and as approved by City on the Site Plan.
City shall provide Lessee access to the Premises at all times adequate to service the Premises
and the telecommunication facilities at all times during this Lease.
Lessee shall provide the City with a list of all authorized individuals who will have access to
the Premises. Notification of changes to the list shall be provided to the City within 24 hours by
telephone or fax from the point of contact identified in Section 41 (G), which notice shall be followed
by written notification pursuant to Section 41(G). Lessee shall be responsible for conducting
appropriate background checks of all of their employees.
Employees visiting the Premises shall be clearly identifiable as employees of the Lessee
either by uniform identification badge or marked company vehicle.
4. NON-EXCLUSIVE LEASE. This Lease is nonexclusive and does not preclude the
City from granting a similar lease, right, license, franchise, etc. to other carriers, providers or other
persons for telecommunications or any other purpose, provided that such lease, right, license,
franchise, etc. does not physically interfere with the Lessee's Telecommunications facilities.
lEASE AGREEMENT - 2 Sprint Site ill #SE63XC400
5. TERM OF LEASE. This Lease shall be valid for a term of five year(s) commencing
April 6, 2008 and terminating April 5, 2013, unless otherwise extended as provided for herein.
Lessee shall have the option of renewing this lease for two (2) additional five (5) year periods up to a
total of ten (10) years. Notice of renewal must be received by the City within six (6) months of
expiration of each five year term.
6. RIGHTS GRANTED. This Lease does not convey any right, title or interest in the
City property, but shall be deemed the right only to use and occupy the City property for the limited
purposes and term stated in the Lease. Further, this Lease shall not be construed as any warranty of
title.
7, INTERFERENCE WITH OTHER USERS, The Lessee acknowledges that the
City may enter into leases with other tenants for their equipment and telecommunications facilities
for the purposes of transmitting and receiving telecommunication signals from City property. The
City, however, is not in any way responsible or liable for any interference with Lessee's use of the
City property which may be caused by the use and operation of any other tenant's equipment, even if
caused by new technology. In the event that any other tenant's activities interfere with the Lessee's
use of the City property, and such use or operation was not in existence on the date of execution of
this Lease, and the Lessee cannot resolve this interference with the other tenants, the City will, upon
written request by Lessee, cause such interfering use to cease. Lessee understands that if its use
interferes with a prior tenant, and the interference problem cannot be cured, this Lease may be
terminated by the.City pursuant to Sections 34 and 35. The Lessee shall cooperate with all other
tenants to identify the causes of and work towards the resolution of any electronic interference
problem. In addition, the Lessee agrees to eliminate any radio or television interference caused to
City-owned facilities or surrounding residences at Lessee's own expense and without installation of
extra filters on City-owned equipment. Lessee further agrees to accept such interference as may be
received from City operated telecommunications or other City facilities located upon the City
property subject to this Lease except those City antenna sites placed upon Lessee's facilities pursuant
to Section 1O.B.
8. OWNERSIDP AND REMOVAL OF IMPROVEMENTS. All buildings,
landscaping and all other improvements, except telecommunications facility, shall become the
property of the City upon expiration or termination of the Lease. In the event that the City requires
removal of such improvements after termination of the Lease, such removal shall be accomplished at
the sole expense of the Lessee and completed within thirty (30) days after receiving notice from the
City requiring removal of the improvements. Additional time may be granted upon the discretion of
the City which approval shall not be unreasonably withheld. In the event that telecommunications
facilities or other equipment are left upon City property after expiration or termination of the lease,
they shall, at the City's option, if not removed by the Lessee upon 30 days written notice from the
City, be removed and stored at the expense of Lessee. Stored telecommunications facilities that are
not claimed by the Lessee within six (6) months from termination of the Lease shall become the
property of the City.
lEASE AGREEMENT - 3 Sprint Site ill #SE63XC400
City waives any lien rights it may have concerning the Telecommunications facility, all of
which are deemed Lessee's personal property and not fixtures, and Lessee has the right to remove the
same at any time without City's consent.
City acknowledges that Lessee has entered into a financing arrangement including promissory
notes and financial and security agreements for the financing of the Telecommunications facilities
("Collateral") with a third party financing entity (and may in the future enter into additional financing
arrangements with other financing entities). In connection therewith, City (i) consents to the
installation of the Collateral; (ii) disclaims any interest in the Collateral, as fixtures or otherwise; and
(iii) agrees that the Collateral shall be exempt from execution, foreclosure, sale, levy, attachment, or
distress for any Rent due or to become due and that such Collateral may be removed at any time
without recourse to legal proceedings. Notwithstanding the foregoing, Lessee shall continue to pay
Rent under this lease unless earlier terminated as provided for herein.
9. CANCELLATION OF LEASE BY LESSEE.
A. All Leases are contingent upon the Lessee obtaining all necessary permits,
approvals and licenses for the proposed facilities. In the event that the Lessee is unable to obtain all
such permits, approvals and licenses, it may cancel its lease, and obtain a pro rata refund in any rents
paid, without further obligation by giving 30 days prior written notice to the City. Lessee agrees to
restore City property to original condition if cancellation is requested.
B. In the event that the holder of a Lease determines that the City property is
unsuitable for its intended purpose, the Lessee shall have the right to cancel the Lease upon 180 days
written notice to the City. However, no prepaid rent shall be refundable; except in the event any
changes occur with respect to the City's use of the property subsequent to the effective date of this
Lease (including but not limited to additional Lessees as permitted by the City) and such changes
result in the property becoming unsuitable for Lessee's intended purpose.
10. COMPENSATION TO THE CITY.
A. 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 One Thousand Two Hundred and No/lOO Dollars
($1,200.00) per month, prorated for any partial months. Substantial expansion of the initial
configuration contained in Schedule A will result in review and possible re-negotiation of the rental
rate contained herein.
At the beginning of each successive year thereafter, the monthly rent shall automatically be
increased by four percent (4%) per year above the annual rent for the preceding year.
LEASE AGREEMENT - 4 Sprint Site ill #SE63XC400
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.
R. Additional Consideration. City shall be allowed, at City's sole expense, to
attach City's communication antennas to Lessee's telecommunications tower provided City first
obtains Lessee's prior written consent for such attachments. Such consent shall not be unreasonably
withheld. Lessee's approval for said attachments shall be contingent upon determining whether
Lessee's tower is properly engineered to accommodate City's antenna system and such transmission
shall not result in any impairment or diminution in the quality of Lessee's service. Further, said
approval shall be given only after Lessee has reviewed and approved City's engineering plans for
said antenna attachments in a location specified by Lessee. Approval shall not be unreasonably
withheld. Upon written approval by Lessee, said attachments shall be installed by qualified licensed
contractors and in accordance with Lessee's directives for the method of installment and with
permits issued by all applicable governmental authorities having jurisdiction which shall first be
obtained by City at its sole expense. City acknowledges and agrees that Lessee reserves the right to
relocate City's antennas at any time(s) to accommodate modifications required for Lessee's future
system requirements, provided such relocation shall provide equivalent quality of service after such
relocation.
C. Pursuant to Section 27 Lessee shall pay to the City fifty percent (50%) of any
and all sublessee rent for co-location on Lessee's tower.
11, AMENDMENT OF LEASE. Except as provided within the existing Lease, a new
lease application and Lease shall be required of any telecommunications carrier or other entity that
desires to expand, modify, or relocate its telecommunications faCilities or other equipment located
upon City property. If ordered by the City to locate or relocate its telecommunications facilities or
other equipment on the City property, the City shall grant a lease amendment without further
application.
12, RENEWAL APPLICATION. A Lessee that desires to renew its Lease under this
Article shall, not more than one hundred twenty (120) days nor less than sixty (60) days before
expiration of the current Lease, file an application with the City for renewal of its Lease which shall
include the following:
A, Any reasonable information required by the City of Bremerton;
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;
LEASE AGREEMENT - 5 Sprint Site ill #SE63XC400
D. A non-refundable application fee in the amount of Five Hundred and No/lOO
Dollars ($500.00).
The City reserves the right to extend the review period for the renewal application if
additional information is required.
13. OBLIGATION TO CURE AS A CONDITION OF RENEWAL. No Lease shall
be renewed until any ongoing violations or defaults in the Lessee's performance of the Lease have
been cured, or a plan detailing the corrective action to be taken by the Lessee has been approved by
the City.
14. IMPROVEMENTS. During the term of this Lease if Lessee wishes to substantially
expand the existing configuration contained in Schedule A, Lessee will submit a new application.
15, POLICE POWER. In accepting this Lease, the Lessee acknowledges that its rights
hereunder are subject to the legitimate rights of the police power of the City to adopt and enforce
general ordinances necessary to protect the safety and welfare of the public and it agrees to comply
with all applicable general laws enacted by the City pursuant to such power.
16. 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 orupon
the public ways. All such facilities which interfere with public ways shall be moved by the Lessee,
at the Lessee's cost, temporarily or permanently, as determined by the City Public Works and
Utilities Director.
'17. REPAIR AND EMERGENCY WORK, In the event of an unexpected repair or
emergency, the Lessee may commence such repair and emergency response work as required under
the circumstances, provided the Lessee shall notify the City as promptly as reasonably possible,
before such repair or emergency work commences or as soon thereafter as possible if advance notice
is not practicable.
18. MAINTENANCE OF LEASE FACILITIES. The Lessee shall maintain its
facilities in good and safe condition and in a manner that complies with all applicable federal, state
and local requirements. Lessee shall not permit waste, damage, or injury to the premises including
any City property, public ways of the City, other ways or other property, whether publicly or
privately owned, located in, on or adjacent thereto. Lessee shall not improperly store any chemicals
or hazardous materials in violation of the law in the well head protection area. Lessee shall not
restrict site access to City. City shall have the exclusive right to inspect the Lessee's
telecommunications facilities and equipment at any time during the term of this Lease to ensure
compliance with the terms and conditions herein; Provided, however, Lessee has the right to be
LEASE AGREEMENT - 6 Sprint Site II) #SE63XC400
present at all inspections of Lessee's telecommunications facilities and equipment, and City shall
give Lessee at least 24 hours prior notice of such intent.
19. SIGNAGE. Lessee shall display proper signage as required by the FCC as well as
current signage on telecommunication facilities identifying Lessee, address and a 24 hour phone
number. Signage shall be posted and clearly visible at all times.
20. RELOCATION OR REMOVAL OF FACILITIES. Within one hundred eighty
(180) days following written notice from the City, the Lessee shall, at its own expense, temporarily
or permanently remove, relocate, change or alter the position of any telecommunications facilities
within the public ways or upon City property whenever the City Public Works & Utilities Director
shall have determined that such removal, relocation, change or alteration is reasonable necessary for:
A. The construction, repair, maintenance or installation of any City or other
public improvement in or upon the public ways; and
B. The operations of the City or other governmental entity in or upon the public
ways.
Additional time for removal or relocation may be granted at the discretion of the City which
extension shall not be unreasonably withheld. If Lessee fails to remove the property upon request by
the City, Lessee agrees to reimburse the City for any and all removal costs incurred by the City.
21. REMOVAL OF UNAUTHORIZED FACILITIES. Within thirty (30) days
following written notice from the City, Lessee or any person who owns, controls or maintains on
behalf of Lessee any unauthorized telecommunications system, facility or related appurtenances
within the public ways or real property of the City shall, at its own expense, remove such facilities or
appurtenances from the public ways or property of the City. A telecommunications system or facility
is unauthorized and subject to removal in the following circumstances:
A, Upon expiration or termination of the Lessee's Lease without approved
extension or renewal;
B. Upon abandonment of a facility within the public ways or real property of the
City. Any property of a Lessee shall be deemed abandoned if left 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
LEASE AGREEMENT - 7 Sprint Site ill #SE63XC400
E. lf the system or facility was constructed or installed at a location not permitted
by the Lease.
Provided, however, that the City may, in its sole discretion, allow a Lessee, or other such
persons who may own, control, or maintain telecommunications facilities within the public ways or
property of the City to abandon such facilities in place. No facilities of any type may be abandoned
in place without the express written consent of the City. Any plan for abandonment or removal of a
Lessee's facilities must be first approved by the Public Works and Utilities Director, and all
necessary permits must be obtained prior to such work. Upon authorized permanent abandonment of
the property of such persons in place, the property shall become that of the City, and such persons
shall submit to the City an instrument in writing, to be approved by the City Attorney, transferring to
the City the ownership of such property in which event, Lessee shall have no further obligations or
liability with respect to such property or facilities. The provisions of this Section shall survive the
expiration, revocation, or termination of the Lease granted hereunder. lf the City does not authorize
abandonment and Lessee fails to remove such facilities within thirty (30) days following notice,
Lessee agrees to reimburse the City for any and all costs incurred by the City for facilities removal.
22. EMERGENCY REMOVAL OR RELOCATION OF FACILITIES. The City
retains the right and privilege to cut or move any telecommunications facilities located within the
public ways of the City and upon City property, as the City may determine to be necessary,
appropriate or useful in response to any public health or safety emergency. The City shall not be
liable to Lessee, or any other party for any direct, indirect, or any other such damages suffered by any
person or entity of any type as a direct or indirect result of the City's actions under this Section.
23. DAMAGE TO FACILITIES. Unless directly and proximately caused by the
willful, intentional or malicious acts by the City not otherwise authorized herein, the City shall not be
liable for any damage to or loss of any telecommunications facility upon City property or within the
public ways of the City as a result of or in connection with any public works, public improvements,
construction, excavation, grading, filling, or work of any kind on such City property or within the
public ways by or on behalf of the City.
24. RESTORATION OF PUBLIC WAYS, OTHER WAYS AND CITY
PROPERTY.
A. When the Lessee, or any person acting on its behalf, does any work in or
affecting any public ways, other ways or City property, or when Lessee, or any person acting on its
behalf damages any public ways, other ways or City property, it shall, at its own expense, promptly
remove any obstructions therefrom and restore such ways or property to City construction standards
as adopted before the work was undertaken, unless otherwise directed by the City. Lessee shall
obtain all requisite permits for such work.
LEASE AGREEMENT - 8 Sprint Site ill #SE63XC400
B. If weather or other conditions do not permit the complete restoration required
by this Section, the Lessee shall temporarily restore the affected ways or property. Such temporary
restoration shall be at the Lessee's sole expense and the Lessee shall promptly undertake and
complete the required permanent restonltion 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 per~on, vehicle or property by reason of such
work in or affecting such ways or property.
D. The Public Works and Utilities Director shall be responsible for inspection
and final approval of the condition of the public ways, other ways, and City property following any
construction and restoration activities therein. Further, the provisions of this Section shall survive
the expiration, revocation, or termination of this Lease.
25. FACILITIES MAPS. The Lessee shall provide the City with a map or maps
accurately reflecting the horizontal and vertical location and configuration of all of its
telecommunications facilities within the public ways and upon City property. The Lessee shall
provide the City with updated maps upon request by the City.
26, BOOKS, RECORDS AND MAPS. All books, records, maps and other documents,
maintained by the Lessee with respect to its telecommunications facilities within the public ways and
upon City property shall be made available for inspection by the City at reasonable times and
intervals; Provided, however, that nothing in this Section shall be construed to require the Lessee to
violate state or federal law regarding subscriber privacy, nor shall this Section be construed to
require the Lessee to disclose proprietary; or confidential information without adequate safeguards for
its confidential or proprietary nature. I
27, LEASED CAPACITY AND CO-LOCATION. Lessee shall have the right, with
prior City approval, to sublet the premises consistent with this Lease; provided:
A. The Lessee shall furnish the City with a copy of any such proposed lease or
agreement between the Lessee and its sub-lessee;
B. The sub-lessee has complied, to the extent applicable, with the requirements
contained in this Lease;
C. The Lessee owns and/or controls the tower facility located on City property;
D. The City and Lessee shall agree upon additional rental fee for sub-lessee hook-
ups pursuant to Section 1O.D.
LEASE AGREEMENT - 9 Sprint Site ill #SE63XC400
The City encourages co-location on existing telecommunications facilities and to that end
will not unreasonably withhold approval of sub-leases.
E. Notwithstanding the foregoing, Lessee may sublease space within the
Premises, without City's consent, to any entity which controls, is controlled by or is under common
control with Lessee, or to its parent company, any subsidiary or affiliate of it or its parent company or
to any successor-in-interest or entity acquiring fifty-one percent (51 %) or more of its stock or assets
("Permitted Assignment"). Such Permitted Assignment shall not include subleases to third parties
that are not related to the Lessee in a manner set forth immediately above.
28. UTILITIES. Electricity, HV AC and telephone service, or other utilities are to be
provided to the Premises and Site at Lessee's expense and as outlined in Schedule A. City shall
cooperate with Lessee in obtaining utility service.
29, LICENSES AND TAXES. Upon commencement of the Lease, Lessee shall be
responsible for paying real or personal property, excise leasehold, business and occupation, and/or
other taxes or licenses which may in the future be assessed as a direct result of the Lessee's
operations at the telecommunications facilities described herein.
I
30. INSURAN CEo The Lessee shall, as a condition of the Lease, secure and maintain the
following liability insurance policies insuring both the Lessee and the City, and its elected and
appointed officers, officials, agents, employees, representatives, engineers, consultants, and
volunteers against claims for injuries to persons or damages to property which may arise from or in
connection with the exercise of the rights, privileges, and authority granted to the Lessee:
A. Comprehensive general liability insurance, written on an occurrence basis,
with limits not less than:
(1) $2,000,000.00 for bodily injury or death to each person, for property
damage resulting from anyone accident; and
(2) $10,000,000 in an umbrella form excess liability policy per
occurrence/aggregate limit.
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;
lEASE AGREEMENT - 10 Sprint Site ill #SE63XC400
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 a endorsement designating
the City, and its elected and appointed officers, officials: agents, employees, representatives,
engineers, consultants, and volunteers as additional insured, to the City prior to the commencement
of any work or installation of any facilities pursuant to said Lease. Any deductibles or self-insured
retentions must be declared to and approved by the City. Payment of deductibles and. self-insured
retentions shall be the sole responsibility of the Lessee. The Lessee's insurance shall be primary
insurance as respects the City, its officers, officials, employees, agents, consultants, and volunteers.
Any insurance maintained by the City, its officers, officials, employees, consultants, agents, and
volunteers shall be in excess of the Lessee's insurance and shall not contribute with it. The City
shall be provided thirty (30) days advance notice of cancellation of any coverages required in 30.A.
above;
F. Within thirty (30) days after receipt by the City of said notice, and in no event
later than fifteen (15) days prior to said cancellation or intent not to renew, the Lessee shall obtain
and furnish to the City replacement insurance policies meeting the requirements of this Section.
31. GENERAL INDEMNIFICATION. Lessee covenants not to bring suit against the
City and hereby agrees to defend, indemnify, and hold harmless the City, its appointed and elected
officers, employees, agents and volunteers from and against any and all liability, loss, costs, damage,
and expense, including costs and attorney fees in defense thereof, and including claims by the
Lessee's own employees to which the Lessee might otherwise be immune under Title 51 RCW,
because of actions, claims or lawsuits for damages resulting from personal or bodily injury, including
death at any time resulting therefrom, sustained or alleged to have been sustained by any person or
persons, and on account of damage to property, arising or alleged to have arisen directly or indirectly
out of or in consequence of the performance of this Agreement, whether such injuries to persons or
damage to property is due to the negligence of the Lessee, its agents, employees, representatives or
assigns. This provision shall be inapplicable to the extent such damage or injury is judicially found
to be caused by the sole negligence of the City. This provision waiving immunity for claims arising
out of Title 51 RCW was specifically negotiated by the parties.
Lessee assumes the risk of damage to its facilities located in the City's public ways, rights-of-way,
easements, and property from activities conducted by the City, its officers, employees, agents, and
volunteers. The Lessee releases and waives any and all claims against the City, its officers,
employees, agents, and volunteers for damage to or destruction of the Lessee's facilities except to the
extent any such damage or destruction is caused by the willful and malicious action of the City, its
officers, employees, agents, or volunteers.
LEASE AGREEMENT - 11 Sprint Site ill #SE63XC400
32. CONSTRUCTION AND COMPLETION BOND. A performance bond written by
a corporate surety acceptable to the City equal to at least 100% of the estimated cost of constructing
the Lessee's telecommunications facilities within the public ways of the City or upon City property
shall be deposited in the event construction is commenced.
A. Except as provided below, the construction bond shall remain in force until 60 .
days after substantial completion of the work, as determined by the City, including restoration of
public ways and other property affected by the construction.
B. The construction bond shall guarantee, to the satisfaction of the City:
(1) Timely completion of construction;
(2) Construction in compliance with applicable plans, permits, technical
codes, and standards;
(3) Proper location of the facilities as approved by the City;
(4) Restoration of the public ways and other public or private property
disrupted, damaged, or otherwise affected by the construction. The
construction bond shall warrant said restoration work for a period of 1
year;
(5) The submission of 'as-built' drawings after completion of the work as
required by this Chapter; and
(6) Timely payment and satisfaction of all claims, demands or liens for
labor, material or services provided in connection with the work.
33. ASSIGNMENTS OR TRANSFERS OF LEASE. Ownership or control of a Lease
may not, directly or indirectly, be transferred, assigned or disposed of by sale, lease, merger,
consolidation or other act of the Lessee, by operation of law or otherwise, without the prior written
consent of the City, which consent shall not be unreasonably withheld or delayed, except as
expressed by ordinance and then only on such reasonable conditions as may be prescribed therein.
A. No Lease shall be assigned or transferred in any manner within twelve (12)
months after the initial grant of the Lease, unless otherwise provided.
B. Absent extraordinary and unforeseeable circumstances, system or integral part
of a system shall be assigned or transferred before construction of the telecommunications facility
has been completed.
LEASE AGREEMENT - 12 Sprint Site ill #SE63XC400
~
C, The Lessee and the proposed assignee or transferee of the system shall provide
and certify the following information to the City not less than sixty (60) days prior to the proposed
date of transfer:
(1) Complete information setting forth the nature, terms and condition of
the proposed transfer or assignment;
(2) All information required of a lease applicant with respect to the
proposed transferee or assignee;
(3) Any other information reasonably required by the City; and
(4) An application fee.
D. No transfer shall be approved unless the assignee or transferee has the legal,
technical, financial, and other requisite qualifications to own, hold and operate the
telecommunications facility pursuant to this Lease.
E. Unless otherwise provided in this Lease, the Lessee shall reimburse the City
for all direct and indirect costs and expenses reasonably incurred by the City in considering a request
to transfer or assign this Lease. No approval shall be deemed approved until all such costs and
expenses have been paid.
F. Any transfer or assignment of the lease, system, or integral part of a system
without prior written approval of the City under this Section or pursuant to the Lease shall be void
and is cause for revocation of the lease.
G, Lessee shall make no assignment or transfer of this Agreement without
obtaining the written consent of Lessor, which consent shall not be unreasonably withheld.
Notwithstanding anything to the contrary herein, Lessee may assign this Agreement to any entity
which controls, is controlled by or is under common control with Lessee, or to its parent company,
any subsidiary or affiliate of it or its parent company or to any successor-in-interest or entity
acquiring fifty-one percent (51 %) or more of its stock or assets. Any other assignment than that
above shall require the City's prior written consent.
34. TRANSACTIONS AFFECTING CONTROL OF LEASE. Approval shall not be
required for mortgaging purposes or if said transfer is from the Lessee to another person or entity
controlling, controlled by, or under common control with the Lessee.
35. REVOCATION OR TERMINATION OF LEASE. The Lease granted by the City
to use or occupy public ways of the City or City property may be terminated for the following
reasons:
LEASE AGREEMENT - 13 Sprint Site ill #SE63XC400
A, Lessee's construction or operation in the City or in the public ways of the City
or upon City property without proper City authorization;
B. Lessee's construction or operation at an unauthorized location;
C. Unauthorized substantial transfer of control of the Lessee;
D, Unauthorized assignment of Lease;
E. Unauthorized sale, assignment or transfer of Lessee's Lease, assets, or a
substantial interest therein;
F. Misrepresentation by or on behalf of the Lessee in any application or written
statement upon which the City relies in making the decision to grant, review or amend said Lease;
G, Abandonment of telecommunications facilities in the public ways or upon
City property;
H. Failure to relocate or remove facilities as required in this Lease;
I. Failure to pay taxes, compensation, fees or costs when and as due the City;
J, Insolvency or bankruptcy of the Lessee;
K. Failure to construct or operate in accordance with approved permits; and
L. Violation of any material provision or term of this lease.
36. NOTICE AND DUTY TO CURE. In the event that Lessee is in violation of or
defaults under the provisions of the Lease, the Lessee shall be given written notice of the apparent
violation, default or non-compliance, providing a short and concise statement of the nature and
general facts of the violation, default or non-compliance, and providing the Lessee a reasonable
period of time not exceeding 30 days to cure the violation.
37. 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 after notice is given the Lessee by the City under the provisions of this
Lease, then the Lessee shall forfeit all rights conferred hereunder and the Lease may be revoked or
annulled by the City. The City may elect, in lieu of the above and without any prejudice to any of its
other legal rights and remedies, to pursue other remedies and to recover damages and costs incurred
by the City by reason of the Lessee's failure to comply.
LEASE AGREEMENT - 14 Sprint Site ill #SE63XC400
38. NOTICE OF ENTRY ONPRIV ATE PROPERTY, If directed by the City, at least
24 hours prior to entering private property or streets or public easements adjacent to or on such
private property to perform permitted new construction or reconstruction, a notice indicating the
nature and location of the work to be performed shall be physically posted, at no expense to the City,
upon the affected property by the Lessee. A door hanger may be used to comply with the notice and
posting requirements of this Section. The Lessee shall make a good faith effort to comply with the
property owner/resident's preferences, if any, on location or placement of underground installations
(excluding aerial cable lines utilizing existing poles and existing cable paths), consistent with sound
engineering practices. Provided, however, that nothing in this Lease shall permit the Lessee to
unlawfully enter or construct improvements upon the property or premises of another.
39. SAFETY REQUIREMENTS. The Lessee, in accordance with applicable federal,
state, and local safety requirements shall, at all times, employ ordinary care and shall install and
maintain and use commonly accepted methods and devices for preventing failures and accidents
which are likely to cause damage, injury, or nuisance to the public and/or workers. All structures and
all lines, equipment and connections in, over, under, and upon the streets, sidewalks, alleys, and
public ways or places of a Lease area, wherever situated or located, shall at all times be kept and
maintained in a safe, sl,litable condition, and in good order and repair. The City reserves the general
right to see that the telecommunications facility of the Lessee is constructed and maintained in a safe
condition. If a violation of the National Electrical Safety Code or other applicable regulation is
found to exist by the City, the City will, after discussions with the Lessee, establish a reasonable time
for the Lessee to make necessary repairs. If the repairs are not made within the established time
frame, the City may make the repairs itself or have them made and collect all reasonable costs
thereof from the Lessee.
40. LIENS. Lessee shall not permit any lien to be imposed upon the property of the City
as a result of work done by or on behalf of user and shall indemnify and hold the City harmless
against any and all expenses, including reasonable attorney's fees and court costs in connection with
any such lien.
41. MISCELLANEOUS.
A. This agreement shall be governed by the laws of the State of Washington.
B. The substantially prevailing party in any litigation arising hereunder shall be
entitled to its reasonable attorney's fees and court costs, including appeals, if any.
C. Each party agrees to furnish the other, within ten (10) days afterrequest, such
truthful estoppel information as the other may reasonably request.
LEASE AGREEMENT - 15 Sprint Site ill #SE63XC400
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: LESSEE:
City of Bremerton Sprint Nextel Property Services
Attn: Public Works & Utilities Mailstop: KSOPHT0101-Z2650
Administrative Manager 6391 Sprint Parkway
3027 Olympus Drive Overland Park, KS 66251-2650
Bremerton, WA 98310-4799
With a copy to: Sprint Nextel Law Department
Mailstop: KSOPHT0101-Z2020
6391 Sprint Parkway
Overland Park, KS 66251-Z2020
Attn: Real Estate Attorney
The individuals identified in this paragraph shall be the. specific point of contact for each party
regarding all topics. Any change to this point of contact shall be delivered to the other party in
writing by certified or registered mail, return receipt requested. All payments will be sent to the
above address.
42. FIRE PRECAUTIONS, Lessee will ensure that all Forest Protection Regulations
and Fire Precaution Levels (IFPLs) are observed during closed season (April 15 - October 15).
Lessee shall be responsible for checking IFPLs and keeping activities within those allowed for a
specific IFPL. Washington State Department of Natural Resources regulates forest land activities
and provides daily IFPLs vial telephone and the internet.
LEASE AGREEMENT - 16 Sprint Site ill #SE63XC400
43, NONDISCRIMINATION. Lessee shall not discriminate in employment or services
to the public on the basis of race, color, national origin, sex, religion, age, marital status or disability,
except employment actions based on a bona fide occupational qualification.
Date: I ;l-Jl-&.7
: J01m Befttldoin on Bf.fsL r
Its: ManagOF, Contract Negotiations
..5tApu" 1'3ll r
Date: /d" Idl.. 0 7
APPROVED AS TO FORM:
II
II
LEASE AGREEMENT - 17 Sprint Site ill #SE63XC400
State of t\ANiYA~ )
) ss.
County of 3t) H filS (J Ai )
~. ') 1 ~ :rol'\~"<L1
On this day of f:;( IbftA " 2007, personally appeared -JOM Bcmtdoin to
me known to be the ~~'If'....contract Negotiations of the Sprint Spectrum If. I
a Delaware lim~tld partnership, that executed the within and foregoing instrument, and
acknowledged said instrument to be the free and voluntary act and deed of said limited
partnership, for the uses and purposes therein mentioned, and on oath stated that he/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.
~."
. DIANE M. ADAMSON otary Public in and for the State of " . S
Notary Public - Sate f Kansas Residing at 0 \1 Elf LA Ai i '~
My Appt ~s \"'\
My commission expires: :117 ' .
State of Washington )
) ss.
County of Kitsap )
On this ;;U-h day of ~ ' 20..f.L1....., personally appeared Cary Bozeman
to me known to be the Mayor 0 the City of Bremerton, 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 purpos~s therein
mentioned, and on oath stated that he was authorized to execute said instrument.
. \ \ \ ~ llll J lJ I
In wi~~W~~ijl-4~ve hereunto set my hand and affixed my official seal the day and
year first abo" i'itten." olV-i:.-...
/ 00 ~OTARy'oo.J-:%.
..0 oP C ~~
I :'MAY15,2010: ~ ~;~.' ../..1_.
~.~ ~ : ~2 Notary hc III and for the State'" of WashIllgton
\Y;"oPUBLIC ...f....~s Residing atG3.J ,....-.-.;..A.TA-n)
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R:\LEGAL\Contracts\FORMS\ Telecommunication Facilities Lease.form.doc
LEASE AGREEMENT - 18 Sprint Site ill #SE63XC400
Schedule A
Premises
See Attached
LEASE AGREEMENT - 19 Sprint Site ill #SE63XC400
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Contract Number 3904
Vendor SPRINT (formerly QWEST)
Subject Telecommunication Facility - Olympus Drive
Department PW Admin
Status Code TEL File Class LEG 16-3
Amount $
Begin Date 05/01/1998
End Date 04/30/2008
Review Date 01/01/2008
Insurance GL $2000000.00 Insurance Total $4000000.00
AL $2000000.00 Insurance Review Date 04/01/2006
E&O $
Comments
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Qwest Wireless, L.L.C. Sprint Spectrum L.P.
430 I East Colfax A venue, Room 314 ~ i Or 6160 Sprint Parkway
Denver, Colorado 80220 ~ KSOPHI0404-4C555
Phone 303.398.8493 ' Overland Park, Kansas 66251
Facsimile 303.398.8497 800-357-7641
July 9, 2004
Via f~l It\fvr'SJ
City Of Bremerton
Attn: Administrative Services Director
239 Fourth St.
Bremerton, W A 98337
Re: Telecommunications Facilities Option and Leas~ement, for the Site located at
3027 Olympus Drive, Bremerton, WA 98310 '(', ~J {bJ SEf.oSy...CI.fj5j1
Dear Administrative Services Director:
As we previously advised, Qwest Wireless, L.L.C. ("Qwest") entered into an agreement
with Sprint Spectrum L.P. ("Sprint") that allows Qwest to offer Qwest customers national
cellular telephone service over Sprint's network. As part ofthe transaction, on 1/28/2004, Qwest
requested that you evidence your consent to Qwest's assignment of the above-referenced Lease
of the Site to Sprint. You subsequently returned your executed Consent, which was dated
2/3/2004.
This letter serves as official notification and confirmation that the transaction between
Qwest and Sprint is complete as to the Site. Effective the 9th day of July, 2004 (the "Effective
Date"), the Lease has been assigned to Sprint. On and after the Effective. Date, Sprint will be the
"Tenant" for all purposes under the Lease, and all future notices and contacts to "Tenant" under
the Lease should be directed to:
Sprint Spectrum L.P.
Sprint Contracts and Performance
M/S: KSOPHTOI0I-Z2650
6391 Sprint Parkway
Overland Park, KS 66251-2650
BREOO 1
..
..
..
I If you have any questions or concerns regarding this matter, please contact Sprint's
Landlord Hotline at 1-800-357-7641.
Qwest and Sprint appreciate your cooperation in this matter.
Sincerely,
Qwest Wireless, L.L.C.
By:
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BREOO 1
MAR 08 2004 10:46 FR QWEST WIRELESS/SEA 206 345 2542 TO 919253550672 P.03
I Sf &'~Y-0L!OO
I
I Qwest Wireles5, L.L.C. ".-.,.
"J Aeal c.late I
1600 T" Ave. Rm. T06 Q .~/
Seame, WA g'191
Phone 206.3-45-ZS40 we s t.---~_..
Fac.im~e 206-345-2542
-, Spirit of Service
Heath(lr Kesten
Reill Estate Mar1tet Milnager
January 28, 2004
Via U.S. Certified Mail, Rehu'o Receipt Requested
Ms Regina Raney
City of Bremerton
Administrative Services Director
239 Fourth Street
Bremcrton W A 98310
Re: Option and Site Lease Agreement (Site [denlification No. BREOOl) by and between City
of Bremerton ("Landlord"), and (Qwest Wireless, L.L.C.lTW Wireless, L.L.c., dated
April 30, 1998 (the "Lease") - 3027 Olympus Drive, Bremcrton, W A 9831 O(the "Site")
Ms Regina Raney:
Qwest Wireless, L.LC. has entered into an agreement with Sprint Spectrum, L.P. ("Sprint"), that
allows Qwest Wireless, L.L.C. and its subsidiary, TW Wireless, L.L.C. (collectively "Qwest
Wireless") to offer Qwest Wireless customers national cellular telephone service. As a result of
this agreement, Qwest Wireless intends to assign all of its rights, interest and obligations in the
Lease to Sprint'or one of its Sprint affiliates. Under the terms of the Lease, your written
approval is neede.~.,to..c~WPl~~~.qti~~~i,gI1J}1e,n.t'.~~~il~{~~!~;'bjiR$iUon;~()dj;QWest;.
\YiJl;.~~fi,D,.q~j.~;}:1iq\Zire;'aecesS"tothe'S ice .lIftertheas'~i~~~.t<J'CPl11piet~th9.assigp:rnept
..;I;;'=~~t~T~:::;:::i~:~=:n~ <4~~~~;!\'l~!Jl$l!t
Please sign where indicated below and retum this original document back to me before .
February 13,2004, and keeping the copy that we provided for your records. For your
convenience, enclosed please find a self addressed, stamped envelope. Written confinnation will
be sent ro you upon [he completion of the assignment. If you require additional information,
please feel free to contact Danielle Edson at 206-345-2540.
~ereIY'
{le)fz>z,t7t-
-._-
MAR 08 2004 10:47 FR QWEST WIRELESS/SEA 206 345 2542 TO 919253550672 P.04
1/28/2004
Page 2 of2
- f '.
LANDLORD'S CONSENT
Landlord hereby consents to rhe assignment of the Lease by Qwest Wireless to Sprint or to a
Sprint affiliate company and to the access and operations during the transition period as noted
above. As of the effective date of such assignment, Qwest Wireless shall be relieved of <Ill
perfonnance. liabilities and obligations under the Lease.
Date: ,2004
By
Name
Title
.-
-..
+--------------------------------------------------------------------------+
+Browse: Next Previous First Last Update Delete Restart X - Exit +
+Retrieve the Next record +
+Found: 5 Record(s) MAINTAIN Contract Transactions +
+ Contract Number 3904 +
+ +
+Vendor Name QWEST +
+Subject OLYMPUS DRIVE - TELECOMMUNICATION FACILITY +
+Department ADMIN SVCS +
+Status Code TEL +
+ Amount +
+ Begin Date 05/01/1998 +
+ Insurance End Date 04/30/2008 +
+ Type Amount Review Date 01/01/2008 +
+ GL $2000000.00 +
+ AL $2000000.00 +
+ +
+ Insurance Total $4000000.00 +
+ Insurance Review Date 04/01/2003 +
+ +
+ Comments +
+ +
+ +
+--------------------------------------------------------------------------+
.- 13 r2 f LoD S-
-
TELECOMMUNICATIONS FACILITIES
OPTION AND LEASE AGREEMENT
THIS LEASE AGREEMENT entered into by and between the City of Bremerton, a
municipal corporation duly organized and existing under the laws of the State of Washington, as
Lessor (hereinafter referred to as ("City") and U S WEST WIRELESS, L.L.C. (hereinafter
referred to as "Lessee").
WITNESSETH:
1. PREMISES. Upon exercise ofthe option granted to Lessee in Section 6 of this
Lease, the City hereby leases to the Lessee real property located at 3027 Olympus Drive 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 (hereinafter referred to as Premises). Upon
exercise of its option, 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. DEFINITIONS. For the purpose of this Lease, and the interpretation and
enforcement thereof, the following words and phrases shall have the following meanings, unless
the context of the sentence in which they are used shall indicate otherwise:
"Person" means and includes corporations, companies, associations, joint stock
companies or associations, firms, partnerships, limited liability companies and individuals and
includes their lessors, trustees and receivers;
"Public street" means any highway, street, alley or other public right of way for motor
vehicle travel under the jurisdiction and control of the City which has been acquired, established,
dedicated or devoted to highway purposes;
"Public way" means and includes all public streets and utility easements, as those terms
are defined herein, now or hereafter owned by the City, but only to the extent of the City's right,
title, interest or authority to grant a permit or lease to occupy and use such streets and easements
for telecommunications facilities;
"Telecommunications carrier" means and includes every person that directly or
indirectly owns, controls, operates or manages plant, equipment or property within the City, used
or to be used for the purpose of offering telecommunications service;
"Telecommunications facilities" means the plant, equipment and property, including but
not limited to, cables, wires, conduits, ducts, pedestals, antennae, towers, electronics, equipment
U S WEST WIRELESS - 1
Olympus Drive - April 7, 1998
~ -.
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
progranuning information between or among points by wire, cable, fiber optics, laser, microwave,
radio, satellite or similar facilities, with or without benefit of any closed transmission medium.
"Utility easement" means any easement owned by the City and acquired, established,
dedicated or devoted for public utility purposes not inconsistent with telecommunications
facilities.
3. USES AND PURPOSES. Lessee shall have the use and occupancy of the
Premises for the purpose of transmission and reception of telecommunication and signals in any
and all frequencies using real property and telecommunications facilities approved in Schedule A
Lessee shall have the right, at its expense, to erect and maintain on the Premises
improvements, personal property and facilities, as described in Schedule A and pursuant to
successful completion of all requisite permit processes.
City shall provide 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 additional charge to Lessee except
Lessee shall agree to sign a mutual road maintenance agreement to be provided by City with all
other users of access roads not included in the public road system and Lessee shall agree to share
equally the annual charge of maintaining the access roads not to exceed Three Hundred and
No/lOO Dollars ($300.00).
4. LEASE APPLICATION. Any person that desires to solicit the City's approval
of a Lease shall file a lease proposal with the City which shall include the following:
A. The identity and legal status of the applicant, including any affiliates;
B. The name, address, telephone number and title of the officer, agent or
employee responsible for the accuracy of the lease application statement;
C. A description of the service that the applicant intends to offer or provide,
or is currently offering or providing, to persons, firms, businesses or institutions within the City,
or to those outside the City limits using facilities located within the City;
us WEST WIRELESS - 2
Ol~pus Drive - April 7, 1998
- -.
D. 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
sufficient detail to identify:
(1) Manufacturer standards, punch list on workmanship inspections for
future sign-off by City inspectors for all telecommunication facilities
being proposed by Lessee.
(2) The location(s) of existing telecommunications 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;
H. Whether the applicant intends to provide cable service, video dialtone
service or other video programming service, and sufficient information to detennine whether such
service is subject to cable franchising;
L An accurate map showing the location of any existing telecommunications
facilities in the City that applicant intends to use or lease;
J. A description of the services or facilities that the applicant will offer or
make available to the City and other public, educational and governmental institutions;
K. Evidence that the applicant has explored possible co-location sites on
existing tower sites on City or private property.
L. Such other and further information as may be requested by the City; and
M. A non-refundable application fee of Five Hundred and Noll 00 Dollars
($500.00).
us WEST WIRELESS - 3
OIympua Drive - April?, 1998
- -
5. NON-EXCLUSIVE LEASE. This Lease is nonexclusive and does not preclude
the City from granting a similar lease, right, license, franchise, etc. to other carriers, providers or
other persons for telecommunications or any other purpose.
6. OPTION. The City, for and in consideration of One Thousand and No/I00
Dollars ($1,000.00), this Lease and mutual considerations, the receipt of which is hereby
acknowledged, does hereby grant and convey unto Lessee, its successors, assigns, and agents an
option to lease the Premises as set forth in this Lease. This option to lease City's property may be
exercised by Lessee at any time within the first twelve (12) months of the date of this Agreement
(option period) by providing City with written notice of Lessee's intent. During the option period
Lessee, its agents, engineers, or contractors shall have the right to enter upon City's property to
inspect, examine, sample and conduct all engineering tests or studies of the Premises, to apply for
and obtain all licenses and permits required for the Lessee's use of the Premises from all
applicable governmental or regulatOl)' entities, and otherwise do those things on the Premises
that, in the opinion of Lessee, are necessary to determine the physical condition of the Premises.
City's title to the Premises, and the feasibility or suitability of the Premises for Lessee's use, all at
Lessee's expense. Lessee shall not be liable to City or any third party on account of any pre-
existing defect or condition on or with respect to the Premises, whether or not such defect or
condition is disclosed by Lessee's inspection, although Lessee shall be responsible for any
damage, loss or destruction to the Premises as a result of the actions of its employees,
representatives or agents during the due diligence activities.
7. TERM OF LEASE. This Lease shall be valid for a term often (10) year(s)
commencing upon exercise of option described in Section 6.
8. RIGHTS GRANTED. This Lease does not convey any right, title or interest in
the City property, but shall be deemed to convey only the right to use and occupy the City
property for the limited purposes and term stated in the Lease. Further, this Lease shall not be
construed as any warranty of title.
9. INTERFERENCE WITH OTHER USERS. The Lessee acknowledges that the
City may enter into leases with other tenants for their equipment and telecommunications facilities
for the purposes of transmitting and receiving telecommunication signals from City property. The
City, however, is not in any way responsible or liable for any interference with Lessee's use of the
City property which may be caused by the use and operation of any other tenant's equipment,
even if caused by new technology. In the event that any other tenant's activities interfere with the
Lessee's use of the City property, and such use or operation was not in existence on the date of
execution of this lease, and the Lessee cannot resolve this interference with the other tenants, the
City will, upon written request by Lessee cause such interfering use to cease. The Lessee shall
cooperate with all other tenants to identifY the causes of and work towards the resolution of any
electronic interference problem. In addition, the Lessee agrees to eliminate any radio or television
interference caused to City-owned facilities or surrounding residences at Lessee's own expense
and without installation of extra filters on City-owned equipment. Lessee further agrees to accept
US WEST WIRELESS . 4
Olympu. Drive. April 7, 1998
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such interference as may be received from City operated telecommunications or other City
facilities located upon the City property subject to this Lease except those City antenna sites
placed upon Lessee's facilities pursuant to Section 12.8.
10. 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 left upon City property after expiration
or tennination of the lease, they shall, at the City's option, become the property of the City ifnot
removed by the Lessee upon 30 days written notice from the City. If Lessee fails to remove the
property upon request by the City, Lessee agrees to reimburse the City for any and all removal
costs incurred by the City.
11. CANCELLATION OF LEASE BY LESSEE.
A. All Leases are contingent upon the Lessee obtaining all necessary permits,
approvals and licenses for the proposed facilities. In the event that the Lessee is unable to obtain
all such permits, approvals and licenses, it may cancel its lease, and obtain a pro rata refund in any
rents paid, without further obligation by giving 30 days prior written notice to the City. Lessee
agrees to restore City property to original condition if cancellation is requested.
B. In the event that the holder of a Lease determines that the City property is
unsuitable for its intended purpose, the Lessee shall have the right to cancel the Lease upon 120
days written notice to the City. However, no prepaid rent shall be refundable.
12. COMPENSATION TO THE CITY.
A. Starting on the first of the next month after Lessee has received City
approval for zoning, the rent 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 Four Hundred Sixteen and 67/100
Dollars ($416.67) per month, prorated for any partial months. On each anniversary of the rent
commencement date, the annual rent due shall be increased by four percent (4%) over the annual
rent due for the preceding year. Lessee agrees to pay the state leasehold tax, which is directly
attributable to this Lease.
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.
us WEST WIRELESS - 5
Olympus Drive - April? 1998
- -
B. Additional Consideration. City shall be allowed, at City's sole expense, to
attach City's communication antennas, that are in addition to initial attachments described in
Exhibit B, to Lessee's telecommunications tower provided City first obtains Lessee's prior written
consent for such attachments. Lessee's approval for said attachments shall be contingent upon
determining whether Lessee's tower is properly engineered to accommodate City's antenna
system and such transmission shall not result in any impairment or diminution in the quality of
Lessee's service. Further, said approval shall be given only after Lessee has reviewed and
approved City's engineering plans for said antenna attachments in.a location specified by Lessee.
Approval shall not be unreasonably withheld. Upon written approval by Lessee, said attachments
shall be installed by qualified licensed contractors and in accordance with Lessee's directives for
the method of installment and with permits issued by all applicable governmental authorities
having jurisdiction which shall first be obtained by City at its sole expense. City acknowledges
and agrees that Lessee reserves the right to relocate City's antennas at any time(s) to
accommodate modifications required for Lessee's future system requirements, provided such
relocation shall provide equivalent quality of service after such relocation. Initial attachments to
the new tower shall be at the expense ofU S WEST as described in Exhibit B. Further, the move
of existing users to the new tower shall be accomplished with adequate notice to all users prior to
the transfer and in the minimal amount of time and disruption.
13. RENEWAL APPLICATION. A Lessee that desires to renew its Lease under
this Article shall, not more than one hundred twenty (120) days nor less than sixty (60) days
before expiration of the current Lease, file an application with the City for renewal of its Lease
which shall include the following:
A. 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. A non-refundable application fee in the amount of Five Hundred and
No/I 00 Dollars ($500.00).
The City reserves the right to extend the review period for the renewal application if
additional information is required.
14. OBLIGATION TO CURE AS A CONDmON 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.
us WEST WIRELESS . 6
Olympua Drive - April 7, 1998
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15. 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 which interfere with public ways shall be moved by
the Lessee, at the Lessee's cost, temporarily or permanently, as determined by the City Public
Works and Utilities Director.
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 reasonably
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. Lessee shall not restrict site access
to City. City shall have the exclusive right to inspect the Lessee's telecommunications facilities
and equipment at any time during the term of this Lease to ensure compliance with the terms and
conditions herein; Provided, however, Lessee has the right to be present at all inspections of
Lessee's telecommunications facilities and equipment, and City shall give Lessee at least 24 hours
prior notice of such intent. The City shall not open Lessee's equipment box without Lessee's
presence on site.
20. SIGNAGE. Lessee shall display a current sign on telecommunication facilities
identifying Lessee, address and a 24 hour phone number.
21. RELOCA nON OR REMOVAL OF FACILITIES. Within ninety (90) days
following written notice from the City, the Lessee shall, at its own expense, temporarily or
permanently remove, relocate, change or alter the position of any telecommunications facilities
within the public ways or upon City property whenever the City Public Works & Utilities Director
us WEST WIRELESS - 7
Olympus Drive - April 7. 1998
-- -
shall have determined that such removal, relocation, change or alteration is reasonable necessary
for:
A. The construction, repair, maintenance or installation of any City or other
public improvement in or upon the public ways; and
B. The operations of the City or other governmental entity in or upon the
public ways.
Additional time for removal or relocation may be granted at the discretion of the City
which extension shall not be unreasonably withheld. If Lessee fails to remove the property upon
request by the City, Lessee agrees to reimburse the City for any and all removal costs incurred by
the City.
22. REMOVAL OF UNAUTHORIZED FACILITIES. Within thirty (30) days
following written notice from the City, Lessee or any person who owns, controls or maintains on
behalf of Lessee any unauthorized telecommunications system, facility or related appurtenances
within the public ways or real property of the City may, remove such facilities or appurtenances
from the public ways or property of the City. A telecommunications system or facility is
unauthorized and subject to removal in the following circumstances:
A. Upon expiration or termination of the Lessee's Lease without approved
extension or renewal;
B. Upon abandonment of a facility within the public ways or real property of
the City. Any property of a Lessee shall be deemed abandoned ifleft in place 30 days after
expiration or termination of the Lease;
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 authorized permanent
us WEST WIRELESS - 8
Olympus Drive - April 7, 1998
- -
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. If
the City does not authorize abandonment and Lessee fails to remove such facilities within thirty
(30) days following notice, Lessee agrees to reimburse the City for any and all costs incurred by
the City for facilities removal.
23. EMERGENCY REMOVAL OR RELOCATION OF FACILITIES. The City
retains the right and privilege to cut or move any telecommunications facilities located within the
public ways of the City, as the City may determine to be necessary, appropriate or useful in
response to any public health or safety emergency. The City shall not be liable to Lessee, or any
other party for any direct, indirect, or any other such damages suffered by any person or entity of
any type as a direct or indirect result of the City's actions under this Section.
24. DAMAGE TO FACILITIES. Unless directly and proximately caused by the
willful, intentional or malicious acts by the City not otherwise authorized herein, the City shall not
be liable for any damage to or loss of any telecommunications facility upon City property or
within the public ways of the City as a result of or in connection with any public works, public
improvements, construction, excavation, grading, filling, or work of any kind on such City
property or within the public ways by or on behalf of the City.
25. RESTORATION OF PUBLIC WAYS, OTHER WAYS AND CITY
PROPERTY.
A. When the Lessee, or any person acting on its behalf, does any work in or
affecting any public ways, other ways or City property, it shall, at its own expense, promptly
remove any obstructions therefrom and restore such ways or property to City construction
standards as adopted before the work was undertaken, unless otherwise directed by the City.
Lessee shall obtain all requisite permits for such work.
B. If weather or other conditions do not permit the complete restoration
required by this Section, the Lessee shall temporarily restore the affected ways or property. Such
temporary restoration shall be at the Lessee's sole expense and the Lessee shall promptly
undertake and complete the required permanent restoration when the weather or other conditions
no longer prevent such permanent restoration.
C. The Lessee or other person acting in its behalf shall use suitable barricades,
flags, flagmen, lights, flares and other measures as required for the safety of all members of the
general public and to prevent injury or damage to any person, vehicle or property by reason of
such work in or affecting such ways or property.
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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 its
telecommunications facilities within the public ways and upon City property. The Lessee shall
provide the City with updated maps upon request by the City.
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; Provided, however, that nothing in this Section shall be construed
to require the Lessee to violate state or federal law regarding subscriber privacy, nor shall this
Section be construed to require the Lessee to disclose proprietary or confidential information
without adequate safeguards for its confidential or proprietary nature.
28. LEASED CAPACITY AND CO-LOCATION. The City encourages co-
location on existing telecommunications facilities and to that end will accept tower lease
applications from new carriers who wish to locate on Lessee's tower. Lessee shall review and
approve placement of new carrier's equipment which approval shall not be unreasonably withheld.
The City will negotiate any future leases including rents with new carriers who co-locate and
retain 100"10 oflease revenue from any future co-location on Lessee's tower.
29. UTILITIES. Electricity, HV AC and telephone service, or other utilities are to be
provided to the Premises and Site at Lessee's expense and as outlined in Schedule A. City shall
cooperate with Lessee in obtaining utility service and provide access across City property.
Lessee will provide a propane fueled generator with sufficient capacity to service existing
tower users and support additional carriers who co-locate. Lessee shall be reimbursed for this
capital outlay on a prorata usage basis by future carriers who benefit from the generator.
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 shall, as a condition of the Lease, secure and maintain
the following liability insurance policies insuring both the Lessee and the City, and its elected and
appointed officers, officials, agents, employees, representatives, engineers, consultants, and
volunteers against claims for injuries to persons or damages to property which may arise from or
in connection with the exercise of the rights, privileges, and authority granted to the Lessee:
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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 anyone
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 ofits
telecommunications facilities. The Lessee shall provide an insurance certificate, together with an
endorsement designating the City, and its elected and appointed officers, officials, agents,
employees, representatives, engineers, consultants, and volunteers as additional insureds, to the
City prior to the commencement of any work or installation of any facilities pursuant to said
Lease. Any deductibles or self-insured retentions must be declared to and approved by the City.
Payment of deductibles and self-insured retentions shall be the sole responsibility of the Lessee.
The Lessee's insurance shall be primary insurance as respects the City, its officers, officials,
employees, agents, consultants, and volunteers. Any insurance maintained by the City, its
officers, officials, employees, consultants, agents, and volunteers shall be in excess of the Lessee's
insurance and shall not contribute with it. The City shall be provided thirty (30) days advance
notice of cancellation of any coverages required in 31.A. above;
F. Within thirty (30) days after receipt by the City of said notice, and in no
event later than fifteen (15) days prior to said cancellation or intent not to renew, the Lessee shall
obtain and furnish to the City replacement insurance policies meeting the requirements of this
Section.
32. GENERAL INDEMNIFICATION. Lessee covenants not to bring suit against
the City and hereby agrees to defend, indemnity, and hold harmless the City, its appointed and
elected officers, employees, agents and volunteers from and against any and all liability, loss,
costs, damage, and expense, including costs and attorney fees in defense thereof, and including
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claims by the Lessee's own employees to which the Lessee might otherwise be immune under
Title 51 RCW, because of actions, claims or lawsuits for damages resulting from personal or
bodily injury, including death at any time resulting therefrom, sustained or alleged to have been
sustained by any person or persons, and on account of damage to property, arising or alleged to
have arisen directly or indirectly out of or in consequence of the performance of this Agreement,
whether such injuries to persons or damage to property is due to the negligence of the Lessee, its
agents, employees, representatives or assigns. This provision shall be inapplicable to the extent
such damage or injury is judicially found to be caused by the sole negligence of the City. This
provision waiving immunity for claims arising out of Title 51 RCW was specifically negotiated by
the parties.
Lessee assumes the risk of damage to its facilities located in the City's public ways, rights-of-way,
easements, and property from activities conducted by the City, its officers, employees, agents, and
volunteers. The Lessee releases and waives any and all claims against the City, its officers,
employees, agents, and volunteers for damage to or destruction of the Lessee's facilities except to
the extent any such damage or destruction is caused by the willful and malicious action of the
City, its officers, employees, agents, or volunteers.
33. CONSTRUCTION AND COMPLETION BOND. A performance bond written
by a corporate surety acceptable to the City equal to at least 100% of the estimated cost of
constructing the Lessee's telecommunications facilities within the public ways of the City or upon
City property shall be deposited 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;
(3) Proper location of the facilities as approved by the City;
(4) Restoration of the public ways and other public or private property
disrupted, damaged, or otherwise affected by the construction. The
construction bond shall warrant said restoration work for a period
of 1 year;
(5) The submission of 'as-built' drawings after completion of the work
as required by this Chapter; and
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(6) Timely payment and satisfaction of all 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 oflaw or otherwise, without the
prior written consent of the City, which consent shall not be unreasonably withheld or delayed,
except as expressed by ordinance and then only on such reasonable conditions as may be
prescribed therein.
A. No Lease shall be assigned or transferred in any manner within twelve (12)
months after the initial grant of the Lease, unless otherwise provided.
B. Absent extraordinary and unforeseeable circumstances, system or integral
part of a system shall not 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.
D. No transfer shall be approved unless the assignee or transferee has the
legal, technical, financial, and other requisite qualifications to own, hold and operate the
telecommunications facility pursuant to this Lease.
E. Unless otherwise provided in this Lease, the Lessee shall reimburse the
City for all direct and indirect costs and expenses reasonably incurred by the City in considering a
request to transfer or assign this Lease. No approval shall be deemed approved until all such
costs and expenses have been paid.
F. Any transfer or assignment of the lease, system, or integral part of a system
without prior written approval of the City under this Section or pursuant to the Lease shall be
void and is cause for revocation of the lease, except that Lessee may sublet and assign this Lease
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or portion thereof, and its other rights hereunder to any person or business entity which is a
parent subsidiary or affiliate of Lessee without Lessor's consent.
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 of a Lessee's
company shall cause a review of the proposed transfer. In the event that the City adopts a
resolution or other appropriate order denying its consent and such change, transfer or acquisition
of control has been effected, the City may cancel the Lease. Approval shall not be required for
mortgaging purposes or if said transfer is from the Lessee to another person or entity controlling,
controlled by, or under common control with the Lessee.
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;
D. Unauthorized assignment of Lease;
E. Unauthorized sale, assignment or transfer of Lessee's Lease, assets, or a
substantial interest therein;
F. Misrepresentation by or on behalf of the Lessee in any application or
written statement upon which the City relies in making the decision to grant, review or amend
said Lease;
G. Abandonment of telecommunications facilities in the public ways or upon
City property;
H. Failure to relocate or remove facilities as required in this Lease;
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L Failure to pay taxes, compensation, fees or costs when and as due the City;
J. Insolvency or bankruptcy of the Lessee;
K. Failure to construct or operate in accordance with approved permits; and
L. Violation of any material provision or term of this lease.
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; or
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
Council may elect, in lieu of the above and without any prejudice to any of its other legal rights
and remedies, to pursue other remedies, including obtaining an order from the Superior Court
having jurisdiction compelling 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 Council shall utilize the following factors in analyzing the nature, circumstances, 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;
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C. Whether the violation was intentional;
D. Whether there is a history of prior violations of the same or other
requirements;
E. Whether there is a history of overall compliance; and
F. Whether the violation was voluntarily disclosed, admitted or cured.
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 permitted new construction or reconstruction, a notice indicating
the nature and location of the work to be performed shall be physically posted, at no expense to
the City, upon the affected property by the Lessee. A door hanger may be used to comply with
the notice and posting requirements of this Section. The Lessee shall make a good faith effort to
comply with the property ownerlresident'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 of a Lease area, wherever situated or located, shall at
all times be kept and maintained in a safe, suitable condition, and in good order and repair. The
City reserves the general right to see that the telecommunications facility of the Lessee is
constructed and maintained in a safe condition. If a violation of the National Electrical Safety
Code or other applicable regulation is found to exist by the City, the City will, after discussions
with the Lessee, establish a reasonable time for the Lessee to make necessary repairs. If the
repairs are not made within the established time frame, the City may make the repairs itself or
have them made and collect all reasonable costs thereof from the Lessee.
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.
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B. Any claim, controversy or dispute arising out of this Lease shall be settled
by arbitration in accordance with the applicable rules of the American Arbitration Association,
and judgment upon the award rendered by the arbitrator may be entered in any court having
jurisdiction thereof The arbitration shall be conducted in the county where the property is
located. There shall be no discovery other than the exchange of information which is provided to
the arbitrator by the parties. The arbitrator shall have the authority only to award compensatory
damages and shall not have authority to award punitive damages or other noncompensatory
damages, the parties hereby waive all rights to and claims for monetary awards other than
compensatory damages.
C. Each party agrees to furnish the other, within ten (l0) days after request,
such truthful estoppel information as the other may reasonably request.
D. This Lease constitutes the entire agreement and understanding of the
parties, and supersedes all offers, negotiations and other agreements. There are no
representations or understandings of any kind not set forth herein. Any amendments to said Lease
must be in writing and executed by both parties.
E. If either party is represented by a real estate broker in this transaction, that
party shall be fully responsible for any fee due such broker.
F. If any term of this Lease is found to be void or invalid, such invalidity shall
not affect the remaining terms of this Lease, which shall continue in full force and effect.
G. Any notice or demand required to be given herein shall be made by certified
or registered mail, return receipt requested, to the address of the respective parties set forth
below:
LESSOR: LESSEE:
City ofBremerton U S WEST Wireless, LLC
Administrative Services Director c/o U S WEST Communications Group
Real Estate Services
239 Fourth Street 8200 E Belleview, Suite 500
Bremerton, WA 98337 Englewood, CO 80112
Attn: PSL ManagerlWireless
COpy TO:
U S WEST Wireless, LLC
450 IIOth Avenue NE, Room 209
Bellevue, W A 98004
Attn: Regional Real Estate Manager
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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.
U S WEST WIRELESS, LLC
Date: I/({o/q~ 44/1, "-
Date:
CITY OF BREMERTON
Date: i~Jft r ~/dL
L S. HORTON, Mayor
or of Public Works & Utilities
APPROVED AS TO FORM:
ca:~~. "
GL NNA MALANCA, Imuiln City Attorney
II
II
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State of Washington )
) ss.
County of Kit sap )
On this 30 -fty of {.1,.a,R,'L. 19 'f f' ,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. __~
,.~ E, Ht:~'~ ~ //f~
~~",-.j,Mtf~~\
f~:" ~OTAR)o' :;t.~~,
cO * : Notary Public in and for t State of Washington
'0\ PuBLIC :~J Residing at ~,(~M11"1t N .
\'.<~'o~jI My commission expires: I O/~/9 tf"
~ ........ I
Qr>' .
RECEIVED FOR FILING: '~_'
Clerk
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