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HomeMy WebLinkAbout112414_ca12JEFFERSON COUNTY BOARD OF COUNTY COMMISSIONERS CONSENT AGENDA REQUEST TO: Board of County Commissioners FROM: Philip Morley, County Administrator DATE: November 24, 2014 RE: Coyle Road Tower and Building Sublicense, licensing the County to operate and access communications equipment on the Coyle Tower once it is owned by JeffCom, for a term of 50 years from execution; $3,500 /year. STATEMENT OF ISSUE: This is one of five agreements between Jefferson County and JeffCom. Staff recommends that the Board of County Commissioners execute all five Agreements. These include: • Port Hadlock License and Use Agreement for JeffCom, providing JeffCom office space at the County Jail annex in Port Hadlock, term 10 /1 /' 12- 12/31/'15; plus four reciprocal agreements to allow one another to operate communications equipment on each other's tower(s): • Port Hadlock Tower License, licensing JeffCom to operate and access communications equipment on the County's Port Hadlock Tower, for a term of 20 years from execution; • Port Townsend Tower Sublicense; licensing the County to operate and access communications equipment on JeffCom's Tower at Fire Station 16 in Port Townsend, for a term of 20 years from execution; • Coyle Road Real Property License, selling to JeffCom the County's interest in the tower on Coyle Road, and licensing JeffCom to use property the County owns or controls, for a term of 50 years from execution; • Coyle Road Tower and Building Sublicense, licensing the County to operate and access communications equipment on the Coyle Tower once it is owned by JeffCom, for a term of 50 years from execution. ANALYSIS: These five agreements are the product of extensive negotiation between JeffCom and the County starting in 2012. From 2012 until now, the Board of County Commissioners has been periodically consulted with and provided guidance for the negotiations. Most recently the Board reviewed all five agreements at its meeting on November 3, 2014. JeffCom has approved the agreements, and they have passed county risk and legal reviews. FISCAL IMPACT: Summary of County /JeffCom Agreements Office Use & License Expires JeffCom County Net in Agreement paysto paysto 2014* County JeffCom Office Use & License 12/31/2015 $ 40,903 $ 40,903 Tower Agreements Expires JeffCom County Net per 20 yrs paysto paysto year ** County JeffCom Coyle Tower Sale & License 50 yrs Coyle Tower Sublicense 50 yrs Hadlock Tower License 20 yrs $ 3,500 Plus $1 sale $ 3,500 $ 12,000 Station 16 Tower Sublicense 20 yrs $ 12,000 subul Towers: $ 15,500 $ 15,500 $ * The use and license fee that JeffCom pays to the County for office space escalates with CPI throughout the term. Amounts each year are as follows: 2012 (partial year) $9,845; 2013 $40,434; 2014 $40,903; 2015 $41,815. Approximately 16% in each year is reserved for capital repairs by the County to the building, the remaining balance of which would be returned to JeffCom should JeffCom quit use of the facility and capital funds remain unspent after 10 years from then. ** The license fees for all tower agreements index at 3Wyear starting the second year, with a net cumulative cost of $0 to both the County and JeffCom for the group of four tower agreements. RECOMMENDATION: Execute all five agreements with JeffCom RE I Q WED BY: h rl ,County min trator Date Coyle Road Tower and Building Sublicense Agreement (Public Works Radio) Between jeffCom And Jefferson County (effCom- Jefferson County Coyle Road Tower and Building Sublicense Agreement (Public Works Radio) Page 1 COYLE ROAD TOWER AND BUILDING SUBLICENSE AGREEMENT (PUBLIC WORKS RADIO) This Coyle Road Tower and Building Sublicense Agreement (Public Works Radio) (hereinafter "License ") is made this day of 2014 ( "Effective Date "), by and between JeffCom, an interlocal government agency created by Jefferson County, the City of Port Townsend and Jefferson County Fire Districts 1 through S, with an office located at 81 Elkins Road, Port Hadlock, WA 98339 (hereinafter "Licensor "), and Jefferson County, a municipal corporation, with an office at Jefferson County Courthouse, PO Box 1220, 1820 Jefferson Street, Port Townsend, WA 98368 and its officers, officials and employees (hereinafter "Licensee "). The Licensor and Licensee are at times referred to as Parties or Party, collectively or individually. WHEREAS, pursuant to the Prime License (as defined below), Licensor holds an exclusive license to a portion of that certain real property with a street address of 8640 Coyle Road, Quilcene, WA as shown in the Prime License (hereinafter the "Property'), upon which Licensor owns and operates certain equipment and attachments including, but not limited to, an existing communications tower ( "Tower'), fences, utilities, antennae, equipment building ( "Building") and ancillary equipment, attachments and improvements thereto; and WHEREAS, Licensor desires to sublicense to Licensee, and Licensee desires to sublicense from Licensor, certain space on the Tower ( "Tower Space ") along with space in the Building ( "Building Space') for the installation, operation and maintenance of Licensee's Equipment (defined below), along with other rights and privileges ancillary to the license of such space and operations of Licensee's Equipment located upon the Licensed Premises (defined below). NOW THEREFORE, for good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, the Parties hereby incorporate each of the foregoing recitals into the terms of this License by this reference and hereby agree to be bound to the following terms and conditions: Section 1: Definitions "Hazardous Substance" shall for this License have the same definition as found in WAC 173- 340 -200. "Licensed Premises" is defined to include to both Licensed Premises A and Licensed Premises B. "Licensed Premises A" is defined and depicted in the Prime License. "Licensed Premises B" is defined and depicted in the Prime License. "Prime License" is that certain "Coyle Road Rea( Property License" of even date herewith, by and between Jefferson County as Licensor and JeffCom as Licensee, attached hereto as Exhibit C. Section 2: Tower and Building Sublicense 1) Incorporation of pre-existing r a) the Parties are subject to that certain "Interlocal Agreement Regarding Emergency Dispatching, Communications and Other Public Safety Services" which has an effective date of October 1, 2012 (hereinafter "Interlocal Agreement"). This License shall prevail in the event of any conflict of terms or operation between the Interlocal Agreement and this License. JeffCom - Jefferson County Coyle Road Tower and Building Sublicense Agreement (Public Works Radio) Page 2 b) The Parties are subject to the Prime License. The Prime License shall prevail in the event of any conflict of terms or operation between the Prime License and this License 2) Term. Subject to the term of the Prime License, the term of this License shall be for fifty (50) years (the "Term") commencing on the Effective Date, and expiring at midnight on the last day of the Term. a) Holdover Terms. If, upon expiration of the Term, an extension to this License or a new license has not been executed, and provided that Licensee is not in default of any provisions of this License, and if neither Party has delivered to the other a notice of their intention not to renew this License, this License shall automatically renew in one (1) year terms ( "Holdover Term(s) ") thereafter until terminated as provided herein. Licensee shall continue to occupy the Licensed Premises in accordance with the terms and conditions of this License during any Holdover Term. During any such Holdover Term, either Party may terminate this License by delivering to the other Party a notice of intent to terminate the License at least one hundred and twenty (120) days prior to the end of the then - current Holdover Term. 3) License Fee. The License Fee for the first (V) year of the Term shall be Three Thousand Five Hundred Dollars ($3,500.00) per year ("License Fee') to be paid within thirty (30) calendar days of the Effective Date. a) Escalation. Beginning with the second (2nd) year of the Term, and every year thereafter, the License Fee shall increase by three percent (3 %) over the preceding year's License Fee. Each annual License Fee payment shall be paid in advance, due and payable on or before the anniversary of the Effective Date. b) Hold -Over. If Licensee holds over after the Term, the License Fee shall increase by three percent (3%) over the License Fee paid during the immediately preceding year, due and payable in advance, on the anniversary of the Effective Date, throughout the Holdover Term(s). 4) Additional Payments. Except in the case of amounts billed directly to Licensee by a governmental authority other than Licensor, any amounts paid by Licensor on behalf of Licensee that are directly attributable to Licensee's use of the Licensed Premises under this License ( "Additional Payment(s)") shall be reimbursed by Licensee to Licensor. Additional Payment(s) shall include that portion, if any, of any fee or other assessment directly attributable to Licensee's use of the Licensed Premises including, but not limited to: (i) Licensee's pro rata share of any governmental assessments directly attributable to the Licensed Premises or Licensee's Equipment, (ii) any municipal application review fee or antenna installation fee relating to Licensee's use of the Licensed Premises, and (iii) any sales or use taxes that are assessed or due by reason of the License Fee or Additional Payment(s). In connection with any claim for Additional Payment(s), Licensor must deliver to Licensee written evidence, including all reasonable supporting documentation requested by Licensee, to demonstrate that the Additional Payment(s) claimed falls within this Section. Upon receipt of such documentation, Licensee shall have ten (10) business days to reject the documentation, otherwise the documentation shall be automatically accepted. a) Licensee shall have the right, at its sole option and expense, to appeal, challenge or seek modification of any such assessment or billing for which Licensee is wholly or partly responsible for payment. Licensor, at no additional fee to Licensee, shall reasonably cooperate with Licensee in filing, prosecuting and perfecting any appeal or challenge to any assessment. In the event that, as a result of any appeal or challenge by Licensee, there is a reduction, credit or repayment received by Licensor for any Additional Payment previously paid by Licensee, Licensor agrees to promptly reimburse Licensee its pro rata share of the reduction, credit or repayment. IeffCom- Jefferson County Coyle Road Tower and Building Sublicense Agreement (Public Works Radio) Page 3 5) Payment Address and Method of Payment. License Fee and any Additional Payment(s) are to be clearly identified as "Coyle Road Tower and Building Sublicense Paymentfsl" and mailed to: JeffCom 81 Elkins Road Port Hadlock, WA 98339 Attn: Executive Director Licensor may change the payee and payee address by providing sixty (60) days' prior written notice to Licensee. 6) Use of Licensed Premises. Subject to the terms and conditions of this License, Licensee shall use the Licensed Premises A and B as follows: a) Use of Licensed Premises A. Licensee shall use Licensed Premises A for constructing, installing, maintaining, repairing and operating a communications facility and uses incidental thereto, and for no other purpose. Licensee's Equipment shall consist of that shown on Exhibit A - Licensee's Equipment - Tower Eq tt_ipment, and Exhibit B - Licensee's Equipment - Building Equipment (collectively the "Licensee's Equipment "). Licensee may replace its equipment at any time so long as the replacements to Licensee's Equipment are like -kind and within Licensed Premises A, and the power usage is reasonably similar to the Licensee's Equipment being replaced. b) Use of Licensed Premises B. As part of its retained rights as owner of Licensed Premises B, Licensee shall have non - exclusive ingress, egress, parking and utility access within Licensed Premises B. c) Authorized Personnel. Only those employees, engineers, service technicians, contractors, subcontractors, agents, or persons under their direct supervision and control, whom Licensee shall have previously designated to Licensor in writing as Licensee's authorized personnel, shall be permitted to enter the Licensed Premises. Licensee shall have full responsibility and liability for the safety and conduct of Licensee's authorized personnel while on any part of the Licensed Premises. All work performed by or for Licensee within the Licensed Premises shall be performed at Licensee's expense by authorized personnel. Licensee agrees that Licensor shall bear no responsibility or liability for the conduct or safety of any of Licensee's authorized personnel while on any part of the Licensed Premises. d) Government Approvals. It is understood and agreed that Licensee's ability to use the Licensed Premises is contingent upon Licensee obtaining or maintaining after the Effective Date of this License all of the certificates, permits and other approvals (collectively the "Governmental Approvals ") that may be required by any Federal, State or Local authorities as well as satisfactory gemechnical reports, including but not limited to soil borings reports and structural analyses that will permit Licensee the new or continued use of the Licensed Premises as set forth above. Licensor shall cooperate with Licensee in its effort to obtain such approvals and shall take no action that would adversely affect: (i) the status of the Property with respect to the proposed use thereof by Licensee, and (ii) Licensee's nonexclusive access Easement(s) seven (7) days a week, twenty four (24) hours a day over and across the Property. e) Relocation of Licensee's Equipment. Upon request by Licensor, and within ninety (90) calendar days of such request, Licensee shall relocate Licensee's Equipment then located upon Licensed Premises A to another location, at Licensor's sole cost and expense, if Licensor deems such relocation necessary or appropriate to accommodate the equipment of Licensor, or other tenants, or if such relocation is necessitated due to work contemplated to be undertaken upon the Licensed Premises IeffCom- Jefferson County Coyle Road Tower and Building Sublicense Agreement (Public Works Radio) Page 4 by Licensor, provided that any such relocation shall not materially impair the quality of Licensee's communications service or operations at the Licensed Premises. 7) Electrical Power. During the term of this License, Licensee shall have access to Licensor's electrical circuits for provision of power to Licensee's Equipment, at no charge to Licensee. At all times the primary electrical service to the Licensed Premises will be in Licensors name and provided solely by Licensor ( "Electrical Power "). a) Licensee shall not have the right to install its own Temporary Power device upon the Licensed Premises, without the prior consent of Licensor, which may be withheld, conditioned or denied at Licensor's sole discretion. "Temporary Power" is defined as a portable power generating unit inclusive of a self- contained fuel supply that complies with all applicable Laws. The Parties agree that Licensor shall not be liable in any way for any loss, claim, or damages resulting from the failure of power or for the failure of Licensor's Temporary Power at the Licensed Premises. NOTWITHSTANDING THE FOREGOING, in the event of an interruption in Electrical Power to the Licensed Premises that is caused by or attributable to the negligence or intentional misconduct of Licensor, and such interruption continues for a period of fifteen (15) consecutive calendar days or longer and renders a substantial portion of the Licensed Premises unusable for operation of Licensee's Equipment, such loss of Electrical Power shall constitute a Breach by Licensor under this License and shall be subject to such remedies as are afforded herein. a) Licensee may assign this License and its interest in the Licensed Premises to Licensee's principal, a subsidiary of its principal, or to any entity that acquires all or substantially all of Licensee's assets by reason of a merger, acquisition or other business reorganization, provided that such assignee assumes all of Licensee's obligations hereunder. Licensor may assign its interest in the Property and this License upon written notice to Licensee, provided that such assignee assumes all of Licensor's obligations hereunder. This Section 8(a) does not authorize Licensor to assign this License to any for - profit entity. b) Except as specified in Section 8(a), this License may not be assigned or transferred by Licensee to any other party without the prior written consent of Licensor, which consent may be withheld, delayed, conditioned or denied, in Licensor's sole discretion. c) Licensee may not sublet or sublicense all or any portion of the Licensed Premises nor allow any portion of the Licensed Premises to be used by another party without the prior written consent of Licensor, which consent may be withheld, delayed, conditioned or denied, in Licensor's sole discretion. 9) Maintenance. Licensee shall be responsible, whether owned, licensed or installed by Licensee now or in the future, for (i) all maintenance of Licensee's Equipment, as may be modified or upgraded from time to time, and sublicensee(s) equipment, (ii) compliance with all Governmental Approvals including but not limited to all permits, local, state and federal, and FAA and FCC requirements, said maintenance to be regularly accomplished, in accordance with industry standards and to include prompt removal of known or obvious hazards. Licensor shall maintain all access roadways from the nearest public roadway to the Licensed Premises in a manner sufficient to allow pedestrian and vehicular access at all times. 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. 10) Ownership of Equipment. All of Licensee's Equipment, trade fixtures, trade equipment and utilities installed by Licensee, if any, for its purposes, whether or not attached to the Licensed Premises, will remain the property of Licensee and Licensee shall have the right to remove the same at any time and from time to time during the Term or any Holdover Term of this License, or at the expiration or prior leffCom- lefferson County Coyle Road Tower and Building Sublicense Agreement (Public Works Radio) Page 5 termination thereof. Furthermore, Licensor shall have no right or claim to any insurance proceeds payable on account of damage to or destruction of any of Licensee's Equipment and personal property of Licensee. The licenses granted to Licensee under this License shall continue during the Removal Period (defined below) as necessary for Licensee to remove Licensee's Equipment and personal property from the Licensed Premises. 11) Successors and Assigns. This License shall run with the Property. This License shall be binding upon and inure to the benefit of the Parties, their respective successors, personal representatives and assigns, and sublicensee(s). 12) Subordination. This License is and shall be subordinate to the Prime License, and all mortgages which may now or hereafter be secured upon the Property or the Licensed Premises and to any and all renewals, modifications, consolidations, replacements and extensions thereof. 13) Waiver of Licensor's Lien. Licensor hereby waives any and all lien rights it may have statutory or otherwise, concerning Licensee's Equipment and personal property on the Licensed Premises, or any portion thereof, which shall be deemed personal property for the purposes of this License, regardless of whether or not same is deemed real or personal property under applicable Laws, and Licensee shall have the right to remove all or any portion of same from time to time in Licensee's sole discretion and without notice to Licensor and without Licensor's consent 14) Interference. The Parties agree that Licensor, and /or any of Licensor's current or future tenants on Licensor's Real Property, will be permitted to install only such equipment that is of the type and frequency that will not cause harmful interference to the then - existing Licensee's Equipment or that of Licensee's sublicensees. The Parties agree that Licensee, and /or any of Licensee's current or future assignees or sublicensees having equipment or facilities on the Tower or Licensed Premises A will be permitted to install only such equipment that is of the type and frequency that will not cause harmful interference to the then - existing Licensor's Equipment on the Tower or Licensed Premises A. The Parties acknowledge that there will not be an adequate remedy at law for noncompliance with the provisions of this Section, and therefore Licensor and Licensee shall have the right to all legal and equitable remedies, such as, without limitation, injunctive relief and specific performance. 15) Termination. Except as otherwise provided in this License, and in addition to other termination rights contained in this License, this License may be terminated, without any penalty or further liability, as follows: (i) by Licensee upon sixty (60) days prior written notice if it is unable to obtain or maintain any license, permit or other approval necessary to the operation of Licensee's Equipment or the Licensed Premises; or (ii) by Licensee upon ninety (90) days' prior written notice if Licensee determines, in its sole discretion, that the Licensed Premises are no longer suitable for its purposes for any reason. In the event of early termination described in this Section, Licensee shall not be entitled to a refund of any prepaid License Fee, 16) Rreac 1• In the event there is a Breach by either Party under this License, the non- breaching Party shall give the breaching Party written notice of such Breach in the manner set forth within Section 27 below. The occurrence of any one or more of the following events by either Party constitutes a "Breach" of this License: a) The failure of Licensee to pay the License Fee, Additional Payments, or any other amount due under this License when such payment is due. b) The failure of Licensee, its agent(s), subcontractor(s) or employee(s) to perform or observe any provision of this License. c) The misrepresentation by either Party in any of the representations or warranties contained herein. d) The failure of either Party to comply with the covenants, terms, conditions and provisions of this JeffCom- Jefferson County Coyle Road Tower and Building Sublicense Agreement (Public Works Radio) Page 6 License 17) Remedies in the Event of a Breach. After written notice of a Breach is deemed validly given, as set forth within Section 27 below, the breaching Party shall have thirty (30) calendar days in which to cure any monetary Breach, and sixty (60) calendar days to cure any non - monetary Breach. The breaching Party shall have such extended period as may be required beyond sixty (60) calendar days for a non - monetary breach, provided that the nature of the cure is such that it reasonably requires more than sixty (60) calendar days, subject to the following: a) The breaching Party commences the cure within thirty (30) calendar days of its receipt of written notice of such Breach; and b) The breaching Party delivers to the non - breaching Party, in writing, and the non - breaching Party accepts, in writing, an acceptable cure to such Breach (as specified herein); and c) The breaching Party thereafter continuously and diligently pursues the cure to completion. In no case shall the cure period for any Breach be extended beyond ninety (90) calendar days, unless agreed upon in writing by the non - breaching Party. The non - breaching Parry may not maintain any action or effect any remedies for Default against the breaching Party unless and until the breaching Party has failed to cure the Breach within the time periods provided in this Section. 18) Default. The failure of the breaching Party to cure a Breach within the time frames set forth above shall result in a "Default" under this License. In the event of a Default, the non - defaulting Party shall deliver written notice of such Default to the defaulting Party, and the following shall apply: a) Licensoe's Remedies. In the event of a Default by Licensee, Licensor may, but shall not be required to, pursue all or any of the following remedies: i. Terminate this License without further liability, subject to the provisions of this License, and ii. Make any payment required of Licensee herein or comply with any term, covenant or condition required hereunder to be performed by Licensee, including obtaining reasonably required insurance policies, and iii. Pursue any other rights and remedies available at Law or in equity, subject to the provisions of this License. b) Licensee's Remedies. In the event of a Default by Licensor, Licensee may, but shall not be required to, pursue all or any of the following remedies: i. Terminate this License without further liability, subject to the provisions of this License, and ii. Make any payment required of Licensor herein or comply with any term, covenant or condition required hereunder to be performed by Licensor, including obtaining reasonably required insurance policies, and iii. Pursue any other rights and remedies available at Law or in equity, subject to the provisions of this License, and iv. Cure any defaults in the payment of any mortgage or other real property interest encumbering the Licensed Premises or the Property. Upon doing so, Licensee shall be subrogated to any and all rights, titles, liens and equities of the holders of such mortgage or other real property interest. leffCom- Jefferson County Coyle Road Tower and Building Sublicense Agreement (Public Works Radio) Page 7 c) The remedies given in this Section to the Parties shall be cumulative, and the exercise of one right or remedy shall not impair that Party's right to exercise any other right or remedy. NOTWITHSTANDING THE FOREGOING, each Party shall use reasonable efforts to mitigate its damages in connection with a Default by the other Party. d) In the event that the non - defaulting Party fails to exercise its rights under this License within sixty (60) calendar days following an event of Default, and the defaulting Party cures such Default, the non - defaulting Party shall not be entitled to pursue any further action against the defaulting Party for such cured Default. e) if either Party remedies the Default, the Default will be deemed cured and the full amount of the actual cost and reasonable expenses incurred by the non - defaulting Party shall immediately be due and payable by the defaulting Party to the non - defaulting Party, and the defaulting Party shall pay the non - defaulting Party, upon written demand, the full undisputed amount thereof with interest thereon from the date of payment at the lesser of (i) one percent (1 %) per month, or (ii) the highest rate permitted by Law. f) At all times during the Term or any Holdover Term of this License, including during a Breach, all undisputed fees, including the License Fee and Additional Payments, shall be due and payable as set forth herein. The failure of any Party at any time to require performance of any provision or any remedy provided under this License shall in no way affect the right of that Party to require performance or remedy at any time thereafter, nor shall the waiver by any Party of a Breach or Default be deemed to be a waiver of any subsequent Breach or Default. A waiver shall not be effective unless it is in writing and signed by the non - breaching or non - defaulting Party. 19) Removal of Communications Facility upon Termination. Following any termination or expiration of this License, Licensee shall remove all of Licensee's Equipment and personal property from the Licensed Premises. In performing such removal, Licensee shall restore the Licensed Premises to the condition that existed as of the Effective Date, reasonable wear and tear excepted. If Licensee fails to remove Licensee's Equipment and personal property within one hundred eighty (180) days after expiration or earlier termination of this License ( "Removal Period "), Licensor may remove and dispose of Licensee's Equipment and personal property without any liability or recourse for damages, and Licensee shall reimburse Licensor for the reasonable costs of such removal and restoration of the Licensed Premises upon Licensor's demand therefor. Moreover, at Licensees option, if Licensee fails to remove Licensee's Equipment and personal property within the Removal Period, Licensor may deem Licensee's Equipment and personal property abandoned in which event Licensee's Equipment and personal property shall become Licensor's property. Licensee shall be permitted to operate Licensee's Equipment during the Removal Period and shall continue to pay License Fee to Licensor at the then - current monthly rate until such time as the Licensee's Equipment is removed and the Licensed Premises are restored as provided herein. Any partial months shall be prorated. 20) Insurance. Unless otherwise mutually agreed to by the Parties: Licensee and its sublicensee(s) shall provide and carry the following insurance or equivalent thereto: a) Licensee shall carry third party liability and property financial protection insurance covering its use of the Licensed Premises A and /or B. Licensee may satisfy this requirement through the Washington Counties Risk Pool, a self- insured municipal risk pool ( "WCRP "). Licensee or its insurer will notify the Licensor in writing not less than thirty (30) days in advance of any cancellation in coverage thereof. At a minimum, Licensee shall obtain Commercial General Liability insurance including but not limited to, personal injury, broad form property damage, independent contractor, products /completed operations with limits not less than $2,000,000 per occurrence and $4,000,000 in the aggregate. b) Licensee shall furnish the Licensor with certificates of insurance ( "COI") prior to any work by JeffCom- Jefferson County Coyle Road Tower and Building Sublicense Agreement (Public Works Radio) Page 8 Licensee at the Property covering Licensee's Use of the Licensed Premises A and /or B as allowed by Section 6. Prior to commencing any testing, installation, repair or maintenance work on the Licensed Premises A and /or B, Licensee shall ensure that its sublicensee(s), contractors and /or subcontractors will provide Licensor with a COI evidencing the required insurance coverage. c) NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS SECTION, Licensor shall have five (5) business days following its receipt of a COI to approve or reject such COI and insurance coverage provided by Licensee or its sublicensees, contractors and /or subcontractors. Failure by Licensor to provide Licensee with written rejection of any COI or the coverage provided by Licensee or its sublicensees, contractors and /or subcontractors within said five (5) day period shall be deemed approval by Licensor of such COI and coverage. d) The Licensee shall within 30 days of the Effective Date of this License and annually thereafter provide the Licensor with a true and complete copy of the self- insurance liability policy provided to it by the WCRP. Licensee confirms here that the self- insurance liability policy provided to it by the WCRP is occurrence based. e) The Licensee shall maintain Worker's Compensation coverage as required under the Washington State Industrial Insurance Act, Title 51 RCW for all Licensor's employees, agents, representatives and subcontractors who are eligible for such coverage under Title 51 RCW. f) The insurance Licensee is required to obtain and maintain pursuant to this License shall not in any manner limit or qualify the liabilities or obligations of the Licensee under this License. Nor shall it cap any liability of the Licensee if an injured third party is awarded costs, fees, including attorney's fees or other monetary damages due to an act or omission of the Licensee. g) The insurance Licensee is required to obtain and maintain pursuant to this License shall provide primary coverage. Any third party liability coverage provided to the Licensor by the Washington Counties Risk Pool shall be non - contributory to the insurance policies Licensee must obtain and maintain. h) Licensee agrees to waive subrogation with respect to each policy of insurance it must obtain and maintain pursuant to this License. This requirement shall not apply to any policy which includes a condition expressly prohibiting waiver of subrogation by the insured or which voids coverage should the Licensee enter into such a waiver of subrogation on a pre -loss (pre- occurrence) basis. 21) Destruction of Licensed Premises. If the Property or the Licensed Premises are destroyed or damaged so as, in Licensee's reasonable judgment, to hinder the effective use of the Property or the Licensed Premises, Licensee may elect to terminate this License as of the date of the damage or destruction by notifying Licensor not more than forty -five (45) days following the date of damage or destruction. In such event, all rights and obligations of the Parties shall cease as of the date of the damage or destruction, except those that survive this License, and Licensee shall be entitled to the reimbursement of any License Fee and Additional Payment(s) prepaid by Licensee. 22) Condernnatio n. If a condemning authority provides notice that it intends to take all of the Licensed Premises, or a portion sufficient, in Licensee's determination, to render the Licensed Premises unsuitable for the use that Licensee was then making of the Licensed Premises, Licensee shall have the right, at its sole discretion, to immediately terminate this License, upon written notice to Licensor. In the event Licensee terminates the License pursuant to this Section, the License shall terminate on the earlier to occur of (i) the date of Licenser's receipt of Licensee's termination notice pursuant to this Section; or (ii) as of the date the title vests in the condemning authority. The Parties shall be entitled to share in the condemnation proceeds in proportion to the values of their respective interests in the Licensed Premises. Sale of all or part of the Licensed Premises to a purchaser with the power of eminent domain in the face of the exercise of power shall be treated as a taking by condemnation. If the condemning authority is Licensee, then Licensee must provide Licensor with no less than one (1) year's prior written notice of its JeffCom- Jefferson County Coyle Road Tower and Building Sublicense Agreement (Public Works Radio) Page 9 intent to take the Licensed Premises in whole or in part. 23) Hold Harmless. Each Party shall indemnify, defend and hold the other Party, its affiliates, subsidiaries, directors, officers, employees and contractors, harmless from and against any claim, action, damages, liability, loss, cost or expense (including reasonable attorney's fees and costs), resulting from or arising out of the use, acts, omission, or occupancy of the Property, the Licensed Premises, or rights -of -way by the indemnifying Parry and /or any of its contractors, subcontractors, agents, employees or invitees except to the extent that such injury or property damage is due to the gross negligence or willful misconduct of the indemnified Party and /or any of its contractors, subcontractors, agents, employees or invitees. 24) Title and Quiet Enjoyment. Subject to the representations and warranties contained in Section 2(b) of the Prime License, Licensor warrants that it has full right, power, and authority to execute this License and has good and unencumbered fee simple title or exclusive rights to the Licensed Premises free and clear of any liens or mortgages. Licensor further warrants that Licensee shall have the quiet enjoyment of the Licensed Premises during the Term of this License or any Holdover Term or renewal thereof. Licensor warrants that there is no license, decree, regulation, order, easement, lien restriction, or other encumbrance that would adversely affect or prevent the use of the Licensed Premises by Licensee as set forth herein. a) Licensee has the right to obtain a title report or commitment for a title policy from a title insurance company of its choice. If, in the opinion of Licensee, such title report shows any defects of title or any liens or encumbrances, that may adversely affect Licensee's use of the Licensed Premises or Licensee's ability to obtain financing, Licensee shall provide notice to Licensor of such defect or encumbrance, and Licensor shall have sixty (60) calendar days, or any term agreed upon by the parties, to remedy the defect of title. If Licensor is unable or unwilling to correct the defects or encumbrance, Licensee shall have the right to terminate this License upon sixty (60) calendar days written notice to Licensor. b) Licensee will hold Licensor harmless from and indemnify Licensor against and from any damage, loss, expenses or liability resulting from a Hazardous Substance (as defined herein) generated, stored, disposed of or transported to, on or under the Licensed Premises attributable to Licensee's use of the Licensed Premises, including all reasonable attorneys' fees and costs incurred as a result thereof. Licensor will hold Licensee harmless from and indemnify Licensee against and from any damage, loss, expenses or liability resulting from a Hazardous Substance generated, stored, disposed of or transported to, on or under the Property attributable to Licenser's use of the Property, including all reasonable attorneys' fees and costs incurred as a result thereof. This indemnity shall survive indefinitely any expiration or termination of this License. NOTWITHSTANDING THE FOREGOING, Licensee shall have the right to have any environmental audit performed, in its sole discretion, and in the event that conditions exist that, in the opinion of Licensee, may adversely affect Licensee's use of the Licensed Premises or Licensee's ability to obtain financing, Licensee shall have the right to terminate this License upon written notice in a manner consistent with Section 27 below to Licensor. 25) Tower Compliance. Licensor represents that, to Licenser's best knowledge, without duty to investigate, that as of the Effective Date, the Tower is in compliance with all applicable Laws, and Licensor further represents that the Tower will remain in compliance with all applicable Laws, guidelines, engineering specifications, and tower marking /lighting requirements of all government agencies, including but not limited to, the Federal Aviation Administration ( "FAA ") and the Federal Communications Commission ( "FCC "). 26) Miscellaneous. a) Each Party in any litigation arising hereunder shall pay its own attorneys' fees and court costs, including appeals, if any. IeffCom- Jefferson County Coyle Road Tower and Building Sublicense Agreement (Public Works Radio) Page 10 b) Each Party agrees to furnish to the other Party, within ten (10) business days after request, such truthful estoppel information as the other may reasonably request. The Party receiving the requested estoppel information may not question or dispute the quality or authorship of said estoppel information. c) This License constitutes the entire agreement and understanding of the Parties, and supersedes all offers, negotiations, inter -local agreements or amendments and other agreements between the Parties with respect to the subject matter hereof. There are no representations or understandings of any kind not set forth herein. Any amendments to this License must be in writing and executed by both Parties. d) If either Party is represented by a real estate broker, attorney or consultant in this transaction, that Party shall be fully responsible for any fee(s) due, and shall hold the other Party harmless from any claim for compensation by such other Parry. e) Licensor agrees to cooperate with Licensee in executing any documents necessary to protect Licensee's rights hereunder or Licensee's use of the Licensed Premises. f) This License will be recorded with the Jefferson County Auditor at Licensee's expense. g) This License shall be construed in accordance with the laws of the State Washington. The Parties warrant and represent to each other that they have had representation by legal counsel and /or have had the opportunity to be represented by legal counsel during all stages in the negotiation of this License. The Parties further agree that they have participated in the negotiating and drafting of this License and stipulate that this License shall not be construed more favorably with respect to either Party. h) If a deed of trust, mortgage or other encumbrance affects the Licensed Premises, Licensor shall obtain for Licensee's benefit, and for the benefit of Licensee's sublicensees (if applicable), a non - disturbance and attornment agreement in a form reasonably satisfactory to Licensee or such sublicensee, and containing the terms described below (the "Non- Disturbance Agreement "). The Non - Disturbance Agreement shall recognize Licensee's and sublicensee's right to remain in occupancy of and have access to the Licensed Premises as long as Licensee is not in default of this License beyond applicable notice and cure periods. The Non - Disturbance Agreement shall include the encumbering party's agreement that, if Licensor's successor -in- interest or any purchaser of Licensor's or its successor's interest (a "Purchaser ") acquires an ownership interest in the Property or the License, such Purchaser will (1) honor all of the terms of this License, (2) fulfill Licensor's obligations under the License, and (3) promptly cure all of the then - existing Licensor's defaults under the License. Such Non - Disturbance Agreement must be binding on all of Purchasers. In return for such Non - Disturbance Agreement, Licensee will execute an agreement for Licensor's benefit in which Licensee (1) confirms that this License and any sublicenses are subordinate to other real property interests in favor of Licensor, (2) agrees to attorn to a Purchaser if a Purchaser becomes the owner of the Property or the License; and (3) agrees to accept a cure by a Purchaser of any of the Licensor's defaults, provided such cure is completed within the deadline applicable to Licensor. "Law(s)" shall be defined as all applicable local, state and federal laws, including but not limited to, policies, rules, regulations, ordinances, directives, covenants, easements, zoning and land use regulations, restrictions of record, permits, building codes, and the requirements of any applicable fire insurance underwriter or rating bureau, now in effect or that may hereafter come into effect (including, without limitation, the Americans with Disabilities Act and laws regulating Hazardous Substances). j) If any term of this License is found to be void or invalid, such invalidity shall not affect the remaining terms of this License, which shall continue in full force and effect. leffCom- Jefferson County Coyle Road Tower and Building Sublicense Agreement (Public Works Radio) Page 11 k) Licensor and Licensee agree that the Licensed Premises, including without limitation, the rights of way, may be shown on construction drawings prepared by a licensed engineer, at Licensee's expense for Licensee's Equipment to be located within the Licensed Premises. 1) This License may be executed in duplicate counterparts, each of which shall be deemed original. m) The Parties agree that the execution of this License by one or both Parties will become valid only upon full execution of the following agreements by both Parties within forty -five (45) days of the last signature on this License. The agreements to be executed within forty-five (45) days are: i. Coyle Road Real Property License ii. Port Hadlock Tower License iii. Port Hadlock License and Use Agreement for JeffCom iv. Port Townsend Tower Sublicense - Station 16 n) Time is of the essence in each and every provision of this License. o) Nothing contained in this License shall be construed to create a joint venture, partnership, tenancy -in- common, joint tenancy relationship, or any other type of relationship between Licensee and Licensor. p) No officer, official, employee, representative or employee of the Licensee shall be considered an employee of the Licensor and No officer, official, employee, representative or employee of the Licensor shall be considered an employee of the Licensee. 27) ice • All notices hereunder must be in writing and shall be deemed validly given if (i) sent by certified mail, return receipt requested, in which case the notice shall be effective three (3) business days after deposit in the U.S. Mail; or (ii) by a nationally recognized courier service that provides overnight delivery and provides verification of such delivery, or attempted delivery, in which case the notice shall be effective upon receipt or rejection of delivery, or attempted delivery, and addressed as follows (or to such alternate address as either Party may specify to the other, in writing, at least ten (10) business days prior to such notice being given): (E- mailed carbon copies of the official notice are also authorized.) To Licensor: JeffCom Attn: Executive Director 81 Elkins Road Port Hadlock, WA 98339 khatton@1cnsn.us with Copy to: Joseph F. Quinn, Attorney at Law 20 Forest Glen Lane SW Lakewood, WA 98498 -5306 Office Tel.: 253 858 -3226 Cell: 253 576 -3232 firelaw(@comcast net To Licensee: Jefferson County Monte Reinders, Public Works Director623 Sheridan St. Port Townsend, WA 98368 mreindersftco jefferson.wa.us with Copy to: County Administrator Jefferson County Courthouse PO Box 1220 1820 Jefferson St. Port Townsend, WA 98368 pmorley@co 'eeffferson wa us IeffCom- lefferson County Coyle Road Tower and Building Sublicense Agreement (Public Works Radio) Page 12 28) Exhibits and Attachments. This License is subject to the terms and conditions of the exhibits and attachments referenced below, which are attached hereto and by this reference, made a part hereof: Exhibit A Licensee's Equipment - Tower Equipment Exhibit B Licensee's Equipment - Building Equipment Exhibit C Prime License IN WITNESS WHEREOF, Licensor and Licensee have executed this License as of the Effective Date. Licensor: JEFFCOM by:- Date: /G Karl Hatton its: Executive Director Licensee: JEFFERSON COUNTY by:_ John Austin C ve' n o. lvarez, Chief Civil D Licensee: JEFFERSON COUNTY by: Date: Phillip Johnson its: Countv Commissioner District #1 Licensee: JEFFERSON COUNTY by: David Sullivan Date: IeffCom- lefferson County Coyle Road Tower and Building Sublicense Agreement (Public Works Radio) Page 13 NOTARY BLOCK - JeffCom STATE OF WASHINGTON SS. COUNTY OF JEFFERSON 1 certify that I know or have satisfactory evidence that Karl Hatton is the person who appeared before me, and he acknowledged that he signed this instrument, on oath stated that he was authorized to execute the instrument and acknowledged it as the Executive Director of J ff .om. to be the free and voluntary act of such party for the uses a /nod purposes mentioned in the instrument. DATED: (b 31 pu . Notary Public in and for the S too Wp hington My appointment expires: J NOTARY BLOCK - Jefferson County STATE OF WASHINGTON ) SS. COUNTY OF JEFFERSON ) 1 certify that 1 know or have satisfactory evidence that Phillip Johnson is the person who appeared before me, and he acknowledged that he signed this instrument, on oath stated that he was authorized to execute the instrument and acknowledged it as County Commissioner District #1 of Jefferson Countv, to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument. Dated: Notary Seal (Signature of Notary) Notary Public in and for the State of Washington My appointment expires: IeffCom- Jefferson County Coyle Road Tower and Building Sublicense Agreement (Public Works Radio) Page 14 NOTARY BLOCK - Jefferson County STATE OF WASHINGTON SS. COUNTY OF JEFFERSON I certify that I know or have satisfactory evidence that David Sullivan is the person who appeared before me, and he acknowledged that he signed this instrument, on oath stated that he was authorized to execute the instrument and acknowledged it as County Commissioner District #2 of lefferson County, to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument. DATED: Notary Seal (Signature of Notary) Notary Public in and for the State of Washington My appointment expires: NOTARY BLOCK - Jefferson County STATE OF WASHINGTON SS. COUNTY OF JEFFERSON I certify that I know or have satisfactory evidence that John Austin is the person who appeared before me, and he acknowledged that he signed this instrument, on oath stated that he was authorized to execute the instrument and acknowledged it as the County Commissioner District #3 of lefferson County to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument. Dated: Notary Seal (Signature of Notary) Notary Public in and for the State of Washington My appointment expires: IeffCom- Jefferson County Coyle Road Tower and Building Sublicense Agreement (Public Works Radio) Page 15 EXHIBIT A LICENSEE'S EQUIPMENT - TOWER EQUIPMENT Licensee's Equipment permitted upon the Tower is set forth in the table below: Antennas Om Antenn I Tvoe Make Twe Dimensions Mount I.osation Mount eel 1 I VHF I Sinclair Whip 21' NE Leg I q_80' Cablin¢ LICENSED FREQUENCIES The frequencies Licensee may use to operate Licensee's Equipment at and upon the Licensed Premises shall consist of no more than the following frequencies unless otherwise approved, in writing, by Licensor: Transmit Frequencies 154.115 Receive Frequencies 155.055 leffCom- lefferson County Coyle Road Tower and Building Sublicense Agreement (Public Works Radio) Page 16 EXHIBIT B LICENSEE'S EQUIPMENT - BUILDING EQUIPMENT Licensee's use within the Building located at 8640 Coyle Road, Quilcene, WA 98376 shall be limited to the following portions of the Licensed Premises: 1. Licensee shall have dedicated rack space as follows: a. Three (3) consecutive rack units in a server rack provided by Licensor for use by Licensee for its radio. b. Twenty -one (21) consecutive rack units in a server rack provided by Licensor for use by Licensee for its duplexer. c. Each rack unit equals one and three quarters (1 3/,) inches in height and running the width and depth of the rack. The specified rack units shall be located together on the same rack. 2. Licensee shall have shared access to such conduits, cable ladders, shelter cable entry ports, etc. as is reasonably necessary for the installation and operation of the Licensed Premises, to be approved in writing by Licensor prior to installation or any modification. 3. Licensee's use of the entry ports into the Building shall be as currently configured. Any modified use of the entry ports shall require prior written approval of Licensor. leffCom- Jefferson County Coyle Road Tower and Building Sublicense Agreement (Public Works Radio) Page 17 EXHIBIT C PRIME LICENSE [SEE ATTACHED] leffCom- Jefferson County Coyle Road Tower and Building Sublicense Agreement (Public Works Radio) Page 18