HomeMy WebLinkAboutT-Mobile - Communication Site License AgreementRecorded at the Request of. City of Pasco 525 North 3rd Pasco, WA 99301 COMMUNICATION SITE LICENSE AGREEMENT THIS COMMUNICATION SITE LICENSE AGREEMENT ("Agreement") dated September 1, 2006 (the "Effective Date"), between CITY OF PASCO, a Washington Municipal Corporation, hereinafter referred to as "Licensor", and T -MOBILE WEST CORPORATION, a Delaware Corporation, hereinafter referred to as "Licensee." For good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: 1. Communication Site. Licensor is the owner of real property legally described in Exhibit A, attached hereto and incorporated herein by this reference, upon which is located a municipal water tower designated as the "Old Tower" which will be the sole platform to which this license applies, generally located at Road 68 and Broadmoor Road in Pasco, Franklin County, Washington (the portions of the real property and Old Tower being licensed under this Agreement are referred to herein as the "Premises"). 2. Intentionally Deleted. 3. Use. The Premises may be used by Licensee for any lawful activity in connection with the provision of wireless communication services, including the construction, maintenance and operation of related communication facilities. Licensee, at its sole expense, shall secure all necessary licenses, permits and all other necessary governmental approvals for its intended uses of the Premises. Licensor shall, cooperate with Licensee in providing the necessary information for the completion of such applications, required licenses, permits and approvals. 4. Term. The initial term of this Agreement shall be for a period of five (5) years commencing on September 1, 2006, and expiring on August 31, 2011, unless earlier terminated as provided herein. Licensee shall have the right to extend the term of this Agreement for one (1) additional five (5) year renewal term on the same terms and conditions set forth herein, except the license fee shall be the fair reasonable rental value of the premises as negotiated between the parties. Licensee shall provide Licensor notice of Licensee's intent to renew at least thirty (30) days prior to the expiration of the initial term of this Agreement. Communication Site License Agreement - 1 5. License Fees. During the initial term, Licensee shall pay to Licensor as license fee Fourteen Hundred Dollars ($1,400.00) per month. License fees are payable to Licensor at 525 North 3rd, Pasco, Washington 99301. In the event any payment required under this Agreement is not paid within thirty (3 0) days of the date due, this failure shall constitute a default of this Agreement, a late fee in an amount equal to five percent (5%) of the delinquent fee, shall be assessed and the balance shall accrue interest at the rate of 12% per annum until paid in full. 6. Improvements. Licensee shall provide Licensor, in advance of construction, plans and specifications for Licensee's improvements and related facilities to be located upon the Premises for Licensor's prior approval, which approval shall not be unreasonably withheld. Upon such approval, Licensee shall have the right to construct, maintain, install, repair, secure, replace, remove and operate on the Premises, radio communication facilities, including but not limited to utility lines, transmission lines, ice bridge(s), electronic equipment, transmitting and receiving antennas, microwave dishes, and equipment to be located upon the Old Tower; and air conditioned equipment shelters or cabinets, power generator and generator pad, and supporting equipment and structures thereon to be located within the equipment building located upon the ground space referenced above (collectively, the "Licensee's Facilities"). In no event shall antennas, dishes, or other reception devices be located upon the equipment building. In connection therewith, Licensee has the right to do all work necessary to prepare, add, maintain and alter the Premises, so long as it does not impair or interfere the use of the site by other licensees, for Licensee's communications operations and to install utility lines and transmission lines connecting antennas to transmitters and receivers. All of Licensee's construction and installation work shall be performed in accordance with the plans and specifications approved by the Licensor, at Licensee's sole cost and expense, in a good and workmanlike manner and conforming with all Federal Communications Commission ("FCC") rules and regulations. Title to the Licensee's Facilities and any equipment placed on the Premises by Licensee shall be held by Licensee and shall not be considered fixtures. Licensee has the right to remove the Licensee's Facilities on or before the expiration or the earlier termination of this Agreement, and Licensee shall promptly repair any damage to the Premises caused by such removal. Upon the expiration or earlier termination of this Agreement, Licensee shall remove the Licensee's Facilities from the Premises returning those portions of the Premises to a clear, graded and in good condition. Upon loss of governmental licensing or abandonment of the Licensee's Facilities resulting in Licensee failing to conduct communication operations at the site for six (6) months or longer, Licensee shall immediately remove the Licensee's Facilities at its sole expense. Licensee shall maintain its portion of the Premises in a clean, secure and in a condition free of accumulation of weeds and debris. Licensee shall design and construct its facilities in such a manner as to withstand seismic, ice and wind loads and such other hazards as may be reasonably expected to affect the Premises. Communication Site License Agreement - 2 Licensor acknowledges and agrees that Licensee's Facilities were installed on the Premises pursuant to a prior agreement between Licensor and Licensee (or its predecessor in interest) and Licensor approves of such installation in all respects. Licensee shall construct at its expense, modifications in the exterior security fencing to provide access to its onground equipment facility in a manner and configuration as approved by Licensee which will allow Licensee access to its equipment facility without jeopardizing the integrity of the Licensor's water tower security and in compliance with the applicable Homeland Security Regulations in affect. 7. Access and Utilities. 7.1 Licensor shall provide Licensee, Licensee's employees, agents, contractors, subcontractors and assigns with access to the Premises, consistent with the Homeland Security Regulations in place affecting the Premises. Licensor shall permit access to Licensee's onground equipment facility outside of the security area, including keys for locking gates and barriers, twenty-four (24) hours a day, seven (7) days a week, at no charge to Licensee. Licensor grants Licensee, and Licensee's agents, employees and contractors, a non-exclusive right of entry for pedestrian and vehicular ingress and egress to the Premises upon easements held by the Licensor and on the Premises for Licensee's site. Licensee shall maintain the security of the Premises by locking all gates upon completion of their entry. Licensee shall be permitted access within the Licensor's water tower security area only upon compliance with the Homeland Security Regulations applicable to the facility including escort and supervision within the security area and upon the water tank by a Licensor's authorized representative. Licensor shall provide Licensee a contact number, 24 -hours per day, seven days per week for emergency or other access within the secured area. Licensee shall pay all additional costs incurred by the Licensor for overtime or other actual costs necessitated for access to the facility security area at times other than the normal working hours of the Licensor. 7.2 Licensor shall maintain all access roadways from the nearest public roadway to the Premises in a manner sufficient to allow pedestrian and vehicular access at all times under normal weather conditions. Licensor shall be responsible for maintaining and repairing such roadways, at its sole expense, except for any damage caused by Licensee's use of such roadways. 7.3 Licensee shall pay for the electricity it consumes in its operations as charged by the local utility provider. Licensee shall have the right to draw electricity and other utilities from the existing utilities on the Premises or obtain separate utility service from any electric utility provider that will provide service to the Premises, including a standby power generator for Licensee's exclusive use. In connection therewith, Licensee hereby grants to the local telephone, power and utility companies (as appropriate) non-exclusive rights to locate, construct, install, operate, maintain, repair, alter, extend, and/or remove cables and lines on, over and across a portion of the Licensor's Premises as necessary or desirable therefore. Licensor agrees to sign such documents or easements, at no cost to Licensee or the utility companies, as may be required by said utility companies to provide such service to the Premises. Any easements or rights necessary for such power or other utilities will be at locations reasonably acceptable to Licensor and the servicing utility company. Communication Site License Agreement - 3 S. Interference. Licensee shall operate Licensee's Facilities in compliance with all FCC requirements including those prohibiting interference to communications facilities of Licensor or other licensees of the Premises, provided that the installation and operation of any such facilities predate the installation of the Licensee's Facilities. Subsequent to the installation of the Licensee's Facilities, Licensor will not, and will not permit its licensees to, install new equipment on or make any alterations to the Premises, if such modifications are likely to cause interference with Licensee's operations. In the event interference occurs, Licensor agrees to use best efforts to eliminate such interference in a reasonable time period. 9. Taxes. Licensee shall pay any personal property taxes assessed against Licensee's Facilities and Licensor shall pay when due, all real property taxes and other taxes, fees and assessments attributed to the Premises. 10. Termination. 10.1 This Agreement may be terminated without further liability as follows: (i) by Licensor if Licensee fails to pay any license fee or other payment required hereunder within ten (10) days after receiving written notice of such failure from Licensor, or (ii) by either party upon a default of any non -monetary covenant or term hereof by the other party, which default is not cured within thirty (30) days of receipt of written notice of default, except that this Agreement shall not be terminated if the default cannot reasonably be cured within such thirty (30) day period, and the defaulting party has commenced to cure the default during that period and diligently pursues the cure to completion. 10.2 This Agreement may also be terminated by Licensee without further liability on thirty (30) days prior written notice: (i) if Licensee is unable to reasonably obtain or maintain any certificate, license, permit, authority or approval from any governmental authority, thus, restricting Licensee from installing, removing, replacing, maintaining or operating the Licensee's Facilities or using the Premises in the manner intended by Licensee; (ii) if Licensee determines that the Premises are not appropriate for its operations for economic, environmental or technological reasons, including without limitation, signal strength, coverage or interference, or (iii) or Licensee otherwise determines, within its sole discretion, that it will be unable to use the Premises for Licensee's intended purpose. 11. Destruction or Condemnation. If the Premises or Licensee's Facilities are damaged, destroyed, condemned or transferred in lieu of condemnation, Licensee may elect to terminate this Agreement as of the date of the damage, destruction, condemnation or transfer in lieu of condemnation by giving notice to the Licensor no more than forty-five (45) days following the date of such damage, destruction, condemnation or transfer in lieu of condemnation. 12. Insurance; Subrogation; and Indemnity. 12.1 Licensee shall provided Commercial General Liability Insurance providing for bodily injury, death and property damage in a combined single limit of not less than One Million Dollars and No Cents ($1,000,000.00) per occurrence. Such insurance shall insure, on an occurrence basis, against all liability of the Licensee, its employees, and agents arising out of or Communication Site License Agreement - 4 in connection with the Licensee's use of the Premises. Licensor shall be named as an additional insured on Licensee's policy of insurance, and Licensee shall provide Licensor a Certificate of Insurance evidencing coverage required by this paragraph within thirty (30) days after the date this Agreement is signed by both parties. Licensor shall be notified by Licensee or its insurer of any cancellation, termination or the lapse of any policy required herein within thirty (30) days prior to the termination of the coverage. 12.2 Licensor and Licensee hereby mutually release each other (and their successors or assigns) from liability and waive all right of recovery against the other for any loss or damage covered by their respective first -party property insurance policies for all perils insured thereunder. In the event of such insured loss, neither party's insurance company shall have a subrogated claim against the other. 12.3 Licensor and Licensee shall each indemnify, defend and hold the other harmless from and against all claims, losses, liabilities, damages, costs, and expenses (including reasonable attorneys' and consultants' fees, costs and expenses) arising from the indemnifying party's breach of any term or condition of this Agreement or from the negligence or willful misconduct of the indemnifying party or its agents, employees or contractors in or about the Premises. The duties described in this Paragraph 12.3 shall apply as of the Effective Date of this Agreement and survive the termination of this Agreement. 13. Assignment. Licensee may not assign or otherwise transfer all or any part of its interest in this Agreement or Licensee's Facilities without the prior written consent of the Licensor, which will not be unreasonably withheld, conditioned or delayed; provided, however, that Licensee may assign its interest to a parent company, any subsidiary or affiliate or to any successor in interest or entity acquiring fifty-one percent (51%) or more of the stock or assets, subject to any financing entities' interest, if any, in this Agreement as set forth in paragraph 14(b) below, or in connection with the transfer of Licensee's FCC authorization to operate a commercial mobile radio base station at the site. Licensor may assign this Agreement upon written notice to Licensee subject to the assignee's assuming all of Licensor's obligations herein, including but not limited to those set forth in paragraph 14 below. Licensee shall not sublicense or permit the use by others of any portion or all of Licensee's site to one or more entities for communication or other uses without the written consent of the Licensor, which consent shall not be unreasonably withheld. Licensee shall, however, have full rights to mortgage, pledge, hypothecate or otherwise assign this Agreement and Licensee's Facilities to any financing entity or agent on behalf of any financing entity to which Licensee (i) has obligations for borrowed money or in respect of guarantees thereof, (ii) has obligations evidenced by bonds, debentures, notes or similar instruments, or (iii) has obligations under or with respect to letters of credit, banker's acceptances and similar security instruments or guaranties. Communication Site License Agreement - 5 14. Waiver of Licensor's Lien. (a) Licensor hereby waives any and all lien rights it may have, statutory or otherwise, concerning the Licensee's Facilities or any portion thereof, which for the purposes of this Agreement are conclusively construed as Licensee's personal property and not fixtures. (b) Licensor acknowledges that Licensee may have entered into or may enter into financing arrangements, including Promissory Notes, Security Agreements and Financing Statements for the financing of the Licensee's Facilities with a third party financing entity. In connection therewith, Licensor (i) consents to the installation of Licensee's Facilities subject to security interests; (ii) disclaims any interest in Licensee's Facilities, its fixtures or otherwise; (iii) agrees that the Licensee, or any entity holding a security interest therein, may remove Licensee's Facilities at any time without recourse to legal proceeding. Neither Licensee, nor any financing entity granting a security interest in Licensee's Facilities, shall have any right to claim any interest in real property by lien or by permissive possession other than as provided in this Agreement. 15. Title and Quiet Enjoyment. Licensor represents and warrants that (i) it has full right, power, and authority to execute this Agreement, (ii) Licensee may peacefully and quietly enjoy the Premises and such access thereto, provided that Licensee is not in default hereunder after notice and expiration of all cure periods, (iii) it has obtained all necessary approvals and consents, and has taken all necessary action to enable Licensor to enter into this Agreement and allow the Licensee to install and operate the Licensee's Facilities on the Premises, including without limitation, approvals and consents as may be necessary from other tenants, licensees and occupants of Licensor's property, and (iv) the Premises and access rights are free and clear of all liens, encumbrances and restrictions except those of record as of the Effective Date. 16. Environmental. As of the Effective Date of this Agreement: (1) Licensee hereby represents and warrants that it shall not use, generate, handle, store or dispose any Hazardous Materials in, on, under, upon or affecting the Premises in violation of any applicable law or regulation, and (2) Licensor hereby represents and warrants that (i) it has no knowledge of the presence of any Hazardous Materials located in, on, under, upon or affecting the Premises in violation of any applicable law or regulation; (ii) no notice has been received by or on behalf of Licensee from governmental entity or any person or entity claiming any violation of any applicable environmental law or regulation in, on, under, upon or affecting the Premises; (iii) it will not permit itself or any third party to use, generate, handle, store or dispose of any Hazardous Materials, in, on, under upon, or affecting the Premises in violation of any applicable law or regulation. Without limiting Paragraph 12.3, Licensor and Licensee shall each indemnify, defend and hold the other harmless from and against all losses (specifically including, without limitation, reasonable attorneys', engineers', consultants' and experts' fees, costs and expenses) arising from (i) any breach of any representation or warranty made in this paragraph by such party; and/or (ii) environmental conditions or noncompliance with any applicable law or regulation that result, in the case of Licensee, from operations in or about the Premises by Licensee or Licensee's agents, employees or contractors, and in the case of Licensor, from the ownership or control of, or operations in or about, the property by Licensor or Licensor's predecessors in interest, and their respective agents, employees, contractors, tenants, guests or other parties. The provisions of this paragraph shall apply as of the Effective Date of this Agreement and survive termination of this Agreement. "Hazardous Materials" means any solid, gaseous or liquid wastes (including hazardous wastes), regulated substances, pollutants or Communication Site License Agreement - 6 contaminants or terms of similar import, as such terms are defined in any applicable environmental law or regulation, and shall include, without limitation, any petroleum or petroleum products or by-products, flammable explosive, radioactive materials, asbestos in any form, polychlorinated biphenyls and other substance or material which constitutes a threat to health, safety, property or the environment or which has been or is in the future determined by any governmental entity to be prohibited, limited or regulated by any applicable environmental law or regulation. 17. Notices. All notices, requests, demand and other communication hereunder shall be in writing and shall be deemed given if personally delivered or mailed, certified mail, return receipt requested, or sent by for next -business -day delivery by nationally recognized overnight carrier to the following addresses: If to Licensor: With a copy to: If to Licensee: With a copy to: City of Pasco Attn: Robert Alberts 525 North 3rd Pasco, WA 99301 Telephone:(509) 545-3444 Fax: (509) 543-5757 Leland B. Kerr Paine, Hamblen, Coffin, Brooke & Miller, LLP 7025 West Grandridge Blvd., Suite A Kennewick, WA 99336 Telephone: (509) 735-1542 Fax: (509) 735-0506 T -Mobile West Corporation Attn: Lease Administrator 19807 North Creek Parkway North Bothell, WA 98011 Telephone:( ) Fax:( ) T -Mobile West Corporation Attn: PCS Lease Administration 12920 SE 38th Street Bellevue, WA 98006 Telephone:( ) Fax:( ) Communication Site License Agreement - 7 Licensor or Licensee may from time to time designate any other address for this purpose by written notice to the other party. All notices hereunder shall be deemed received upon actual receipt or refusal to accept delivery. 18. Marking and Li2htin. Licensee shall be responsible for compliance with all marking and lighting requirements of the Federal Aviation Administration ("FAA") and the FCC to the extent such requirements relate solely to the installation and use of Licensee's Facilities on the Premises. Should Licensee be cited because Licensee's Facilities are not in compliance and should Licensee fail to cure the condition of noncompliance, Licensor may either terminate this Agreement or proceed to cure the conditions of noncompliance at Licensee's expense, which amounts shall be assessed against Licensee together with interest at the rate of one percent (1%) per annum. 19. Miscellaneous. 19.1 For the purposes of this Agreement, time shall be of the essence. 19.2 In the event of a dispute concerning the breach, interpretation, or enforcement of this Agreement, the party deeming themselves aggrieved, shall immediately notify the other for the purposes of meeting in a good faith attempt to resolve the dispute. In the event the parties are unable to promptly resolve the dispute, the dispute shall be construed and resolved under the laws of the State of Washington, and the substantially prevailing party in any litigation shall be awarded its reasonable attorney's fees and costs. 19.3 If any provision of this Agreement is invalid or unenforceable with respect to any party, the remainder of this Agreement or the application of such provision to the persons other than those as to whom it is held invalid or unenforceable, shall not be affected and each provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law. 19.4 This Agreement shall be binding on and inure to the benefit of the successors and permitted assignees of the respective parties. 19.5 This Agreement constitutes the entire Agreement between the parties, and supersedes all understandings, offers, negotiations and other leases concerning the subject matter contained herein. There are no representations or understandings of any kind not set forth herein. Any amendments, modifications or waivers of any of the terms and conditions of this Agreement must be in writing and executed by both parties. No provision of this Agreement will be deemed waived by either party unless expressly waived in writing by the waiving party. No waiver shall be implied by delay or any other act or omission of either party. No waiver by either party of any provision of this Agreement shall be deemed a waiver of such provision with respect to any subsequent matter relating to such provision. The persons who have executed this Agreement represent and warrant that they are duly authorized to execute this Agreement in their individual or representative capacities as indicated. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute a single instrument. Communication Site License Agreement - 8 IN WITNESS WHEREOF, the parties have entered into this Agreement effective as of the date first written above. LICEN CITY By: Name: Title: City Manager Date: 4-5-0-7 Tax I.D.: f�-(p00 / e �P LICENSEE: T -MOBILE WEaT COPAORATION Name: Title: Area Director, Engineering & Operations Date: �C)7 Tax I.D.: Communication Site License Agreement - 9 STATE OF WASHINGTON) ss. County of Pasco On this day personally appeared GARY CRUTCHFIELD, City Manager of the City of Pasco, to be known to be the individual described in and who executed the within and foregoing instrument, and acknowledged that he signed the same as his free and voluntary act and deed for the uses and purposes therein mentioned. F my hand and official seal this day of , 2007. �o�M1SSiQN �,o�F9 UC �FWA SN,N% STATE OF WASHINGTON County of KING C-1, Print Name poi L. Notary Public i and for the $tate of Washington Residing at My Commission Expires: (� ss. On this day personally appeared KAUTILYA LANBA, Area Director, Engineering and Operations, of T -MOBILE WEST CORPORATION, to be known to be the individual described in and who executed the within and foregoing instrument, and acknowledged that he/she signed the same as his/her free and voluntary act and deed for the uses and purposes therein mentioned. d'L GIVEN under my hand and official seal this day of ��7� , 2007. � 1 1 'nt Name ,,,, Notary Public in and for the State of Washington v'� arty 'e%'�. = i' a 0� Residing at My Commission Expires: f +1111��OF 40 Communication Site License Agreement - 10