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:?965
CROWN CASTLE INTERNATIONAL INC
Telecomm Facility - Gold Mountain
PW Admin
LEG 16-3
11/05/1998
11/04/2008
02/15/2011
01/01/2011
(formerly Global Signal also Pinnacle Towers Inc)
Merged as of 1/12/07 - their site #870640
Annual compensation review 10/1
New lease 3/09
TELECOMMUNICATIONS FACILITIES
LEASE AGREEMENT
THIS LEASE AGREEMENT entered into by and between the City ofBremerton, a
municipal corporation duly organized and existing under the laws of the State of Washington, as
Lessor (hereinafter eferred to as C~ty ) and P~nnacle Towers, Inc. (hereinafter referred to as
"Lessee").
WITNESSETH:
1. PREMISES. The City hereby leases to the Lessee real property for housing,
installing, constructing, operating and maintaining certain telecommunications facilities, said real
property and facilities being more specifically described and/or depicted in Schedule A, attached
hereto and specifically incorporated herein (hereinafter referred to as Premises). Lessee agrees to
accept such real property for such purpose, subject to the considerations, terms and conditions
specified in this Telecommunications Facilities Lease Agreement (hereinafter referred to as
"Lease").
Lessee has acquired an interest in improvements to the premises consisting of Tower itl,
#3 and ~4, and Buildings "A", "B" and "C" as shown on Schedule "A". Lessee agrees that the
Lessor shall have exclusive use of Building "C", and further agrees that Lessor shall also be
entitled to use space on Tower #3 for the operation of Lessor's equipment, in accordance with the
following requirements:
A. Cable tray space to equipment for routing of antenna cabling to antenna
support structure, and provision for securing routing of antenna cabling to and onto antenna
support structure.
LEASE AGREEMENT - I
Pinnacle Towers, Inc. - September 24, 1998
B. Mounting space on Tower #3 for one four foot (4') microwave dish and
two six foot (6') microwave dishes and associated coaxial cables.
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, finns, 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 hereal~er 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 ~ 2
Pinnacle Towers, Inc. - S~ 24, 1998
"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 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/100 Dollars ($300.00). Which amount shall be increased annually in January based upon the
LEASE AGREEMENT - 3
Pinnacle Towers, Inc. - September 24, 1998
CPI for ail urban consumers, Seattle-Tacoma index (1982-84=100) as published by the Bureau of
Labor Statistics for the last month for which statistics are posted.
4. LEASE APPLICATION. Any person that desires to solicit the City's approvai
of a Lease shall file a lease proposal with the City which shall include the following:
A. The identity and legai 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;
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-offby City inspectors for ail telecommunication facilities
being proposed by Lessee.
LEASE AGREEMENT - 4
Pinnacle Towers, Inc. - September 24, 1998
(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;
lt. Whether the applicant intends to provide cable service, video dialtone
service or other video programming service, and sufficient information to determine whether such
service is subject to cable franchising;
I. 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 No/100 Dollars
($5oo.oo).
LEASE AGREEMENT - 5
Pinnacle Towers, Inc, - September 24, 1998
5. NON-EXCLUSIVE LEASE. This Lease is nonexclusive and does not preclude
the City fi-om granting a similar lease, right, license, franchise, etc. to other carders, providers or
other persons for telecommunications or any other purpose.
6. TERM OF LEASE. This Lease shall be valid for a term of ten (10) year(s)
commencing November 5, 1998 and terminating November 4, 2008 subject to annual review of
compensation.
7. COMPENSATION TO THE CITY.
A. Lessee shall pay Lessor the greater of a sum equal to fil~een percent (15%)
of the Lessee's gross monthly revenue from aH installations on Lessee's towers #1, #3 and #4 and
leased premises or a monthly base rental charge of One Thousand and No/100 Dollars
($1,000.00) per month during the first year of this lease, payable on or before the first day of each
month. At the beginning of each successive year thereaP~er, the monthly base rent shall
automatically be adjusted in the "All Items" category of the Consumer Price Index for all Urban
Consumer Scale (CPI-U) as published by the Bureau of Labor Statistics for the U.S. Department
of Labor for the Seattle-Tacoma Metropolitan statistical area (1982-84=100), for the last month
for which statistics are posted prior to the effective date above. However, rent shall not, in any
case, decrease.
Any payments received after the due date shall include a late payment penalty of 2% of the
annual rental fee for each day or part thereof past the due date.
B. Additional Consideration. 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. 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
LEASE AGREEMENT - 6
Pinnacle Towers, Inc. - September 24, 1998
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. Lessee has the right to sublet space on the City owned tower (Tower #2) and shall
pay the City 60% of any and all sub-lessee rent for co-location on City's tower. City shall have
the right to direct removal of any communication facilities on City's tower should they interfere
with the provision of City and/or CenCom services. Lessee shall be given thirty (30) days notice
to remove facilities.
Any additions to the City owned tower must be pre-approved by City.
8. LICENSES AND TAXES. Upon commencement of the Lease, Lessee shall be
responsible for paying real or personal property, leasehold excise, 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.
9. UTILITIES. Electricity, HVAC 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.
LEASE AGREEMENT - 7
Pinnacle Towers, Inc. - Se~mlber 24, 1998
Lessee further agrees to provide an emergency power generating system which will
automatically supply power to Lessee's equipment and the Lessor's equipment, whether located
on towers or in buildings shown in Schedule "A", in the event of failure of the normal commercial
power source. Lessee shall provide the Lessor, without charge, a power allowance of at least five
(5) kilowatts (intermittent duty) on both commercial and emergency power sources. For the
purpose of remote monitoring of the power conditions of the site, Lessee shall provide relay
contact closures for commercial power outage and generator on-line status. The Lessor shall not
be liable for any injury, loss, or damage caused by or resulting from any interruption or failure of
said services due to any causes whatsoever except the Lessor's negligence. Lessee shall not be
entitled to an offset, reduction or return of rental as a result of any interruption or failure of said
services.
10. LEASED CAPACITY AND CO-LOCATION. Lessee shall have the right, with
prior City approval which approval shall not be unreasonably withheld and shall be either granted
or denied within thirty (30) days after a written request is submitted to the City, to sublet the
premises consistent with this Lease; provided:
A. Lessee will provide Lessor with a copy of its standard sublease form and
any subleases deviating from the standard form, for review and approval of the Lessor. Each time
a sublessee is added or deleted from the premises, Lessee shall provide the Lessor with a notice
indicating the changes. The notice will be provided at the time of payment of the monthly rental
amount. Lessee shall provide the Lessor with a complete list of ail sub-lessees at the
commencement of this Lease. Thereat~er, a complete list will be provided on a quarterly basis;
B. The sub-lessee has complied, to the extent applicable, with the
requirements contained in this Lease;
C. The Lessee owns the tower facility located on City property;
LEASE AGREEMENT - 8
Pinnacle Towers, Inc. - September 24, 1998
D. The Lessee must acquire approval in advance for each additional sub-lessee
on the City's tower (Tower #2).
The City encourages co-location on existing telecommunications facilities and to that end
will not unreasonably withhold approval of sub-leases.
11. 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.
Lessee and Lessor shall exchange, on an annual basis or when improvements are made, an
updated inventory and system engineering drawings of all equipment, frequencies and antenna
configurations.
12. 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.
13. 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.
LEASE AGREEMENT - 9
Pinnacle Towers, Inc. - Septem~- 24, 1998
B. In the event that the holder of a Lease deterrnines 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.
14. 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 the Lessee cannot resolve this interference with the other
tenants, the Lessee may, upon thirty (30) days notice to the City, terminate this lease and restore
the City property to its original condition, reasonable wear and tear excepted. The Lessee shall
cooperate with all other tenants to 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 currently located upon the City property subject to this Lease except those City antenna
sites placed upon Lessee's facilities pursuant to Section 7.B.
15. TECHNICAL STANDARDS. Lessee shall operate its telecommunications
facilities in complete compliance with rules and regulations of the Federal Communications
Commission and shall furnish Lessor with a copy of its current license and all subsequent renewals
for Lessor's files. A copy of said license shall be posted at all times on Lessee's equipment at
subject site. Lessee shah operate its equipment in compliance with the applicable standards for
this site as established by the Western Washington Cooperative Interference Committee
(WWCIC) Engineering Standard #6 Rev. C (02-97) for Radio Transmitting and Receiving
Devices and FM Broadcast, hereinafter incorporating future amendments.
LEASE AGREEMENT - 10
Pirmacle Towers, Inc. - Sep~ealber 24, 1998
16. 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 termination of the lease, they shall, at the City's option, become the property of the City if not
removed by the Lessee upon 30 days written notice from the City. 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.
17. 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 or'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/100 Dollars ($500.00).
LEASE AGREEMENT - 11
Pinnacle Towers, Inc.. S q~nnb~r 24, 1998
The City reserves the right to extend the review period for the renewal application if
additional information is required.
18. OBLIGATION TO CURE AS A CONDITION OF RENEWAL. No Lease
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.
19. 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.
20. 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.
21. 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.
LEASE AGREEMENT - 12
P~nna¢lo Towew~, Inc. - September 24, 1998
22. SIGNAGE. Lessee shall display a current sign on telecommunication facilities
identifying Lessee, address and a 24 hour phone number.
23. RELOCATION OR REMOVAL OF FACILITIES. Within ninety (90) days
following written notice from the City, the Lessee shaH, 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 reasonably necessa~
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.
C. The facilities 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 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 falls 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.
24. REMOVAL OF UNAUTHORIZED FACILITIES. Within thirty (30) days
following written notice fi.om 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
LEASE AGREEMENT - 13
Pirmaclo Towers, Inc. - September 24, 1998
fi.om 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
E. If the system or facility was constructed or installed at a location not
permitted by the Lease.
Provided, however, that the City may, in its sole discretion, allow a Lessee, or other such
persons who may own, control, or maintain telecommunications facilities within the public ways
or property of the City to abandon such facilities in place. No facilities of any type may be
abandoned in place without the express written consent of the City. Any plan for abandonment or
removal of a Lessee's facilities must be first approved by the Public Works and Utilities Director,
and all necessary permits must be obtained prior to such work. Upon authorized permanent
abandonment of the property of such persons in place, the property shall become that of the City,
and such persons shall submit to the City an instrument in writing, to be approved by the City
Attorney, transferring to the City the ownership of such property in which event, Lessee shall
have no further obligations or liability with respect to such facilities. The provisions of this
LEASE AGREEMENT - 14
Pinnacle Towers, Inc. - Sq*t~mbe~ 24, 1998
Section shall survive the expiration, revocation, or termination of the Lease granted hereunder. If
the City does not authorize abandoment and Lessee falls 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.
25. 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.
26. 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.
27. 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 othenvise directed by the City.
Lessee shall obtain all requisite permits for such work.
LEASE AGREEMENT - 15
Pinnacl~ Towers, Inc. - Septcnnber 24, 1998
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.
1). 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.
28. 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 annually upon request by the City.
29. 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.
LEASE AGREEMENT - 16
Pinnacle Towem, Inc. - September 24, 1998
30. INSURANCE. The Lessee shall, as a condition of the Lease, secure and maintain
the following liability insurance policies insuring both the Lessee and the City, and its elected and
appointed officers, officials, agents, employees, representatives, engineers, consultants, and
volunteers against claims for injuries to persons or damages to property which may arise from or
in connection with the exercise of the rights, privileges, and authority granted to the Lessee:
A. Comprehensive general liability insurance, written on an occurrence basis,
with limits not less than:
(1) $2,000,000.00 for bodily injury or death to each person;
(2) $2,000,000.00 for property damage resulting from any one
accident; and
(3) $2,000,000.00 for all other types of liability.
B. Automobile liability for owned, non-owned and hired vehicles with a limit
of $2,000,000.00 for each person and $2,000,000.00 for each accident;
C. Worker's compensation within statutory limits and employer's liability
insurance with limits of not less than $1,000,000.00;
D. Comprehensive form premises-operations, explosions and collapse hazard,
underground hazard and products completed hazard with limits of not less than $2,000,000.00;
E. The liability insurance policies required by this Section shall be maintained
by the Lessee throughout the term of the Lease, and such other period of time during which the
Lessee is operating without a Lease hereunder, or is engaged in the removal of its
telecommunications facilities. The Lessee shall provide an insurance certificate, together with an
LEASE AGREEMENT - 17
Pinnacle Towees, Inc. - September 24, 1998
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 above;
F. Within thirty (30) days al~er 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
LEASE AGREEMENT - 18
Pinnacle Towers, Inc. - September 24, 1998
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.
: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 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;
LEASE AGREEMENT - 19
Pinnacle Towers, Inc. - Sept*tuber 24, 1998
(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;
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.
A. If an assignment of lease is requested within twelve (12) months after the
initial grant of the Lease, Lessee shall pay the City the sum of Three Thousand and No/100
Dollars ($3,000.00) for review and processing.
B. Absent extraordinary and unforeseeable circumstances, no system or
integral part of a system shall be assigned or transferred before construction of the
telecommunications facility has been completed.
C. Any Initial Public Offering of Pinnacle's shares of stock to the public shall
not be deemed an assignment or transfer within the meaning of these sections.
LEASE AGREEMENT - 20
Pinnacle Towers, Inc. - Seplenlber 24, 1998
D. 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.
E. 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.
F. 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.
G. 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.
34. TRANSACTIONS AFFECTING CONTROL OF LEASE. Any transactions
which singularly or collectively result in a change of 50% or more of the ownership or working
LEASE AGREEMENT - 21
Pinnacle Towers, Inc. - September 24, 1998
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 comrol of the capacity or bandwidth of the
Lessee's telecommunication system, facilities or substantial parts thereof, shall be considered an
assignment or transfer requiring City approval pursuant to Section 33 hereof Transactions
between affiliated entities are not exempt from City approval. The Lessee shall promptly notify
the City prior to any proposed change in, or transfer of, or acquisition by any other party of
control of Lessee's company. Every change, transfer, or acquisition of control of a Lessee's
company shall cause a review of the proposed transfer. In the event that the City adopts a
resolution or other appropriate order denying its consent and such change, transfer or acquisition
of control has been effected, the City may cancel the Lease. Approval shall not be required for
mortgaging purposes or if said transfer is from the Lessee to another person or entity controlling,
controlled by, or under common control with the Lessee.
35. REVOCATION OR TERMINATION OF LEASE. The Lease granted by the
City to use or occupy public ways of the City or City property may be terminated for the
following reasons:
A. Lessee's construction or operation in the City 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;
LEASE AGREEMENT - 22
Pinnacle Towo's, Inc. - September 24, 1998
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 shall not occur umil at least six (6) months after Lessee's last visit to the site;
It. Failure to relocate or remove facilities as required in this Lease;
L Failure to pay taxes, compensation, fees or costs when and as due the City;
J. Insolvency or bankruptcy of the Lessee;
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 the City believes that
grounds exist for revocation of this Lease, the Lessee shall be given written notice of the apparent
violation, default, or noncompliance, providing a short and concise statement of the nature and
general facts of the violation or noncompliance, and providing the Lessee a reasonable period of
time not exceeding 30 days to furnish evidence:
A. That corrective action has been, or is being actively and expeditiously
pursued, to remedy the violation, default or noncompliance;
B. That rebuts the alleged violation, default or noncompliance; and
LEASE AGREEMENT - 23
Pinnacle Towers, Inc. - 8eptea~l~r 24, 1998
C. That it would be in the public interest to impose some penalty or sanction
less than revocation.
37. HEARING. In the event that the Lessee falls to provide evidence reasonably
satisfactory to the City as provided in Section 36 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.
:t8. 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 &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;
C. Whether the violation was intentional;
D. Whether there is a history of prior violations of the same or other
requirements;
LEASE AGREEMENT - 24
Pinnacle Towec'~, Inc. - Sq~tember 24, 1998
E. Whether there is a history of overall compliance; and
F. Whether the violation was voluntarily disclosed, admitted or cured.
39. 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 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.
40. SAFETY REQUIREMENTS. The Lessee, in accordance with applicable
federal, state, and local safety requirements shall, at all times, employ ordinary care and shall
install and maintain and use commonly accepted methods and devices for preventing failures and
accidents which are likely to cause damage, injury, or nuisance to the public and/or workers. All
structures and all lines, equipment and connections in, over, under, and upon the streets,
sidewalks, alleys, and public ways or places ora Lease area, wherever situated or located, shall at
all times be kept and maintained in a safe, suitable condition, and in good order and repair. The
City reserves the general right to see that the telecommunications facility of the Lessee is
constructed and maintained in a safe condition. Ifa violation of the National Electrical Safety
Code or other applicable regulation is found to exist by the City, the City will, after discussions
with the Lessee, establish a reasonable time for the Lessee to make necessary repairs. If the
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.
LEASE AGREEIV[ENT - 25
Pinnacle Towers, Inc. - September 24, 199g
41. 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 behaif 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.
42. MISCELLANEOUS.
A. This agreement shall be governed by the laws of the State of Washington.
B. The substantially prevailing party in any litigation arising hereunder shall be
entitled to its reasonable attorney's fees and court costs, including appeals, if any.
C. Each party agrees to furnish the other, within ten (10) days after request,
such truthful estoppel information as the other may reasonably request.
D. This Lease constitutes the entire agreement and understanding of the
parties, and supersedes all offers, negotiations and other agreements. There are no
representations or understandings of any kind not set forth herein. Any amendments to said Lease
must be in writing and executed by both parties.
E. If either party is represented by a real estate broker in this transaction, that
party shall be fully responsible for any fee due such broker.
F. If any term of this Lease is found to be void or invalid, such invalidity shall
not affect the remaining terms of this Lease, which shall continue in full force and effect.
G. Any notice or demand required to be given herein shall be made by certified
or registered mail, return receipt requested, to the address of the respective parties set forth
below:
LEASE AGREEMENT - 26
Pinnacle Towers, Inc. - September 24, 1998
LESSOR: LESSEE:
City of Bremerton Pinnacle Towers
Administrative Services Director 1549 Ringling Boulevard
239 Fourth Street Third Floor
Bremerton, WA 98337 Sarasota, FL 34236
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.
PINNACLE TOWERS INC.
Date: [[][t~l ~ ~~~
Date: ~HO~TO~M(Yor
W. EUGE~ S~, Director of Public Works & Utilities
//
//
II
LEASE AGREEMENT - 27
Pinnaclo Towers, Inc. - September 24, 1998
APPROVED AS TO FORM:
ENNA MALANCA, City Attorney
State of Washington )
) SS.
County of Kitsap )
On this ,~d~ day of.~e2z~.t~ 19qde , 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 whereofI have hereumo set my hand and affixed my official seal the day and
year first above written.
Notary Pu~lic/j~anti forr the State ~fWashington
Residing at Lat~,..-.-.oJ~
My commission expires:
RECEIVED FOR FILING-:
THI,EEN L. ~.~~~ Clerk
LEASE AGREEMENT - 28
Pinnacl* Towexs, Inc.. September 24, 1998
BUILDING "C"
/ TOWE'~ #
E H~gogsg5
ELEV. = ~702.~2
~ I/ *' .,. .~, .
~ ~ ro~R
E. H~877,517
I //~ ELEV. = 1701.87
J /~ LAT. = ~7'32'57.~"
TOUR PO~R _~ ~* ~ LONG. = 12747'00.40"
ELE~ ~ 1702.23 .....
TOUR TOP E~V = 1817.~0
~T. = 47'32'57.54"
~c. = ~'~7'oo.~'
uo~u~r~r w/tR~ P~ J
SEC 27, T 24N. R. ~ W.,
1302 68'3~LC
C~C. PO~DO
AFN 8~8~0Y22
998
LEGAL DESCRIPTION
YOR
GOLD MO~
1~5.72 FEET OF ~ ~ST 100 ~'EET OF T~ SOUT~AST QUeeR OF
SOU~ST QUOTER OF $EC~ON 22, TO~S~P 24 NORT~ ~OE 1 ~ST,
~LL~E ~I~, EXCEPT 'EME SOU~ 59.54 FEET TIeR.EOF. SI~A~ ~
COU~Y, STA~ OF WAS~GTON.
MB/kd