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HomeMy WebLinkAboutResolution 2009-044 lease agreeement with Simply BitsMARANA RESOLUTION N0.2009-44 RELATING TO TECHNOLOGY SERVICES; APPROVING AND AUTHORIZING THE MAYOR TO EXECUTE A LEASE AGREEMENT WITH SIMPLY BITS LLC TO CONTINUE USING TOWN OF MARANA COMMUNICATION TOWERS FOR WIDE AREA NETWORK SER- VICES; APPROVING AND AUTHORIZING THE MARANA TECHNOLOGY SERVICES DI- RECTOR TO EXECUTE A MEMORANDUM OF UNDERSTANDING WITH SIMPLY BITS LLC TO EXTEND EXISTING INTERNET AND TECHNOLOGY SERVICES AGREEMENTS UNTIL A NEW PROCUREMENT PROCESS FOR THESE SERVICES HAS BEEN COM- PLETED; AND ESTABLISHING AN EFFECTIVE DATE WHEREAS Simply Bits LLC currently provides internet services, operations and mainte- nance to the Town of Marana, as the successor-in-interest to contracts entered into between the Town and Broadband Laboratories and WJM, which contracts expired on March 31, 2009; and WHEREAS Simply Bits equipment isinstalled onTown-owned communications towers lo- cated at the Marana Municipal Complex (MMC) and the Marana Operations Center (MOC); and WHEREAS the Simply Bits equipment located on the Town's MMC and MOC towers pro- vide service not only to the Town, but also to private Simply Bits customers; and WHEREAS the Town and Simply Bits desire to enter into a Tower Lease Agreement that fa- cilitates the use by Simply Bits of the Town's MMC and MOC towers, independent of whether or not Simply Bits continues to provide internet services and other communications services to the Town; and WHEREAS the Town desires to extend its current internet services, operations and mainte- nancecontracts with Simply Bits for a period sufficient to allow the Town to complete a competitive procurement process for these services; and WHEREAS the Mayor and Council of the Town of Marana find that the proposed Lease Agreement and the proposed Memorandum of Understanding are in the best interests of the Town and the public. NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE TOWN OF MARANA, as follows: Section 1. The Telecommunications Site Agreement between Simply Bits and Town of Marana attached to an incorporated by this reference in this resolution as Exhibit A is hereby ap- proved, and the Mayor is hereby authorized to execute it for and on behalf of the Town of Marana. Marana Resolurion 20094 - 1 - 3/31/2009 4:39 PM FJC/kc Section 2. The Memorandum of Understanding between the Town of Marana and Simply Bits LLC attached to and incorporated by this reference in this resolution as Exhibit B is hereby ap- proved, and the Director of Marana's Technology Services Department is hereby authorized to exe- cute it for and on behalf of the Town of Marana. Section 3. The Town's Manager, Technology Services Director, and staffare hereby di- rected and authorized to undertake all other and further tasks required or beneficial to carry out the terms, obligations, and obj ectives of the Telecommunications Site Agreement and the Memorandum of Understanding. Section 4. This resolution is an administrative act and shall be effective .immediately upon its passage, and the Communications Site Agreement and Memorandum of Understanding are effective retroactively from April 1, 2009. PASSED AND ADOPTED by the Mayor and Council of the Town of Marana, Arizona, this 7~' day of April, 2009. Mayor d Honea ATTEST: ocelyn Bronson, Town Clerk Marana Resolution 2009-44 - 2 - 3/31/2009 4:39 PM FJC/kc APPROVED AS TO FORM: TELECOMMUNICATIONS SITE AGREEMENT BETWEEN SIMPLY BITS AND TOWN OF MARANA THIS TELECOMMUNICATIONS SITE AGREEMENT (this "Agreement") is dated April _, 2009,. by and between SIMPLY BITS, LLC, an Arizona limited liability company, having an office at 5225 North Sabino Canyon Road, Tucson, AZ 85750 ("Tenant") and the Tower of MAx~NA, an Arizona municipal corporation, having an office at 11555 West Civic Center Drive, Marana, AZ 85753 ("Landlord"). Tenant and Landlord are sometimes referred to collectively as the parties, any one of which is sometimes individually referred to as a party. RECITALS A. Landlord is the owner oftwo properties known as the Marana Municipal Complex and the Marana Operations Center, hereafter referred to as the "Properties." B. Landlord and Tenant desire to enter into this lease for Tenant space on communication towers located on the Properties (the "Towers"), as shown on the plans attached. to and incorporated by this reference as Exhibit 1 (Marana Municipal Complex) and Exhibit 2 (Marana Operations Center) (the particular leased locations as so identified being collectively referred to in this Agreement as the "Sites," and individually referred to as the "MMC Site" and the "MOC Site" respectively). NOW THEREFORE, in consideration of the covenants and agreements hereinafter set forth to be performed by the parties, it is agreed by and between Landlord and Tenant as follows: AGREEMENT 1. LEASE AND USE. Landlord hereby leases to Tenant, its successors and assigns, the Sites, which will be used by Tenant for the purpose of operating, maintaining and repairing the existing equipment described particularly on Exhibit 3 attached to and incorporated in this Agreement by this reference, and he following (all of which is collectively referred to as the "Tenant Equipment"): a. At the MMC Site, the Tenant may add up to two point-to-point backhaul links (hereinafter "P-P Links"). b. At the MOC Site, Tenant may remove its routers and firewalls from Landlord's rack space. c. At the MOC Site, Tenant may remove one of its three P-P Links. d. At the MOC Site, Tenant may add up to two P-P Links, with antennas or dishes directed toward Northwest Fire District Station 37 and Beacon Hill, respectively, each of which shall not exceed four feet in length or diameter. e. Tenant .may replace .Tenant Equipment with equipment that the Town, acting through the Marana Technology Services Department, agrees takes up substantially the same amount of space, uses substantially the same amount of {00013742.DOC / 2} - 1 - EXHIBIT A electricity, and uses the identical frequencies. The Marana Technology Services Department shall respond to Tenant's request to replace or add equipment within ten days. f. Any change in Tenant Equipment located on the Sites other than what is described in paragraphs a through d above shall require an amendment to this Agreement. 2. TERM; The term ofthis Agreement shalLbe five years (the "Initial Term"), beginning on the date hereof (the "Commencement Date"), subject to extension or earlier termination in accordance with the provisions hereof. This Agreement will be automatically renewed for three additional terms (each a "Renewal Term") of five years each, unless Tenant provides Landlord with notice of Tenant's intention not to renew not less than 90 dayspriorto the expiration of the Initial Term or any Renewal Term. Anything in the foregoing notwithstanding, the Tenant may terminated this Agreement at any time if any of the following occurs: (a) Tenant is unable to obtain or maintain any license, permit or other approval necessary -for the operation of the Tenant Equipment; or (b) if Tenant is unable to occupy and utilize the Sites due to an action of the FCC, including without limitation, a tack back of channels or change in frequencies; or (c) if any environmental report for the Property reveals the presence of any Hazardous Material after the Commencement Date. Anything in the foregoing notwithstanding, the Tenant may terminated this Agreement for its convenience and without cause upon six months' notice to Landlord, provided that Tenant's termination does not affect communication services provided to Landlord. 3. RENT. Tenant shall pay to Landlord in advance a monthly rent of $350 per month for the period April 1, 2009 through September 30, 2009. Thereafter, Tenant shall pay to Landlord in advance a monthly rent in the amount set forth in the table below (the "Base Rent") for the remainder of the "Initial Term," calculated based on the Tenant Equipment actually in place on the Sites as of the first day of the month for which rent is being paid. The Base Rent shall be payable on the first of the month, with no proration for partial months.. At the beginning of each five year renewal term, the Base Rent shall increase over the previous five year base rate by 15%. Rent includes the use of electricity. Tenant shall_pay Landlord Rent as follows: Sites Initial Term Base Monthl Rent MMC Site, with no change of $175 Tenant .Equipment MMC Site, each additional P-P $35 Link (see l.a) MOC Site, with existing $330 Tenant E ui ment MOC Site, removing routers $280 and firewalls see l.b) MOC Site, removing routers $245 and firewalls, and removing one P-P Link (see l.b and c) MOC Site, each additional P-P $35 Link (see l .d) {00013742.DOC / 2} - 2 - EXHIBIT A Landlord' shall have the right to survey the .electric consumption of the Tenant Equipment and if any such survey discloses that the average electric consumption of the Tenant Equipment is greater than $30 per month per site, then such amount shall thereafter be adjusted. to reflect current consumption. 4. MAINTENANCE,. OPERATION AND REPAIR OF TENANT EQUIPMENT. a. Landlord: shall provide to Tenant the existing space on the Sites, and access to the Sites in substantially the same manner as the Tenant currently has space and access, and all existing wiring, cabling and electrical fees to operate the Tenant Equipment. Tenant shall be permitted to enter the Sites as Tenant reasonably determines is reasonably necessary to operate, maintain and repair the Tenant Equipment and to provide any: contracted services to Landlord and other Tenant customers. b. Prior to replacing or modifying Tenant Equipment or improvements not located on the Sites on the Commencement Date, Tenant shall give Landlord a reasonably detailed drawing or written description thereof and shall not proceed without the prior approval of Landlord, acting through the Marana Technology Services Director, as provided in this Agreement. c. All operations, maintenance, repairs and replacement of the. Tenant Equipment shall be performed at Tenant's sole cost and expense, in a good and workmanlike manner, only after obtaining any permits required bylaw, in compliance with all applicable laws and in a manner designed to minimize any interference with the operation of the Towers and the Landlord's operations. Tenant shall, at its sole cost and expense repair or refinish any surface of the Site that is damaged by or during the installation or operation of the Tenant Equipment and caused by Tenant or any of its agents, representatives, employees, contractors, subcontractors, or invitees.- If Tenant fails to repair or refinish any such damage, Landlord may, in its sole discretion, repair or refinish such damage and Tenant shall reimburse Landlord of all reasonable costs and expenses incurred in such repair or refinishing, provided, however, that Landlord shall give Tenant ten days written notice before taking any action to repair or refinish damage. d. Upon or within 90 days after the expiration or termination of this Agreement, Tenant shall remove from the Tower and or Towers all of the. Tenant Equipment and other personal property of Tenant located in the Tower and or Towers; except. that Tenant shall leave any conduits, risers, wiring, cabling and similar installations located in walls, ceilings, floors, risers, conduits and similar elements in its then "as is" condition and properly labeled at both. ends and shall remove all other Tenant Equipment. Tenant shall repair all damage caused by such removal and restore the affected portions of the Tower and or Towers to the extent practicable to at least the condition existing prior to the installation thereof, ordinary wear-and tear. excepted.. Any Tenant Equipment not removed within such 90 day period shall be deemed abandoned and maybe disposed of by Landlord, at Tenant's reasonable expense, without recourse. or liability.. The provisions of this Paragraph shall not serve as permission for Tenant to hold {00013742.DOC / 2} - 3 - EXHIBIT A over, nor serve to extend the term of this Agreement. Tenant's obligations underthis Paragraph shall survive the expiration or earlier termination of this Agreement. e. Tenant understands and agrees that the structural integrity of the load bearing capability of the Towers is of critical importance to Landlord. Tenant shall provide specifications and plans sufficient to allow Landlord to determine whether these concerns. are protected, and Tenant agrees. and commits that the actual installation of the Tenant Equipment shall be in accordance with those specifications. f. Tenant, through its designated and approved employees and contractors, shall be solely responsible for the maintenance and care of the Tenant Equipment and connecting equipment and shall maintain the same in a clean, sanitary and safe condition and in good:repair and free of any defects at all times during this Agreement. g. Tenant shall label and identify all Tenant Equipment with Tenant's name and telephone number. 5. ACCESS. Subject to the reasonable Building Rules and Regulations (hereinafter defined) from time to time in effect in the Buildings (including Landlord's reasonable restrictions to ensure security and privacy in the Buildings), Landlord agrees that Tenant and its employees, contractors, subcontractors, agents and representatives shall have access to the Towers, the Sites, and the Tenant Equipment 24 hours a day, 365 days a year. As used herein, "Building Rules and Regulations" shall mean the reasonable security, access, construction, .operational, technical, sales, advertising, marketing, service and similar policies, standards, and guidelines (including requirements relating to contractor qualifications, procedures and insurance), as may bepromulgated by the management of Buildings, as such Building Rules and Regulations. maybe reasonably modified from time to time, which Building Rules and Regulations shall be uniformly enforced against all tenants, building contractors and telecommunications service Tenants in a nondiscriminatory manner. 6. VEHICULAR INGRESS AND EGRESS. Landlord grants to Tenant, and Tenant's agents, employees and contractors, anon-exclusive right and easement for pedestrian and vehicular ingress and egress across the Properties as generally described in Exhibits 1 and 2. As depicted in Exhibits 1 and 2, Tenant's vehicular access is limited to areas paved with asphalt or concrete only, which Tenant acknowledges and understands do not extend directly to the Sites, but Tenant shall have full pedestrian .access. over the Properties from the paved areas to the Sites. Furthermore, in the event that circumstances so.require, Tenant shall have vehicular access over the non-paved areas to the Sites only with the prior consent of Landlord. In such event, Tenant shall be responsible~for and will promptly repair any damage caused by such access. 7. AUTHORIZED PERSONNEL LIST. For security purposes, Tenant shall provide Landlord with a list of the names of all personnel who are authorized to enter onto the Sites pursuant to this Agreement.. The. list shall be updated whenever a change of personnel occurs. Landlord is authorized to block entry to any personnel whose name is not on the list. This Section shall be interpreted as a right, but not an obligation, of Tenant to police or restrict entry onto the Sites. {00013742.DOC / 2} - 4 - EXHIBIT A 8 INSURANCE. Tenant shall carry, or cause to be carried, throughout the term of this Agreement, at its sole cost and expense, with carriers licensed to do business in the State in which the Towers are located as follows: -(a) workers' compensation benefits insurance to the extentand. in the amounts required by applicable governmental or quasi-governmentallaws, rules, regulations and requirements (collectively, "Governmental Requirements"); and (b) bodily injury and property damage insurance with a combined single limit of at least $1,000,000 per occurrence. Tenant shall, at its sole cost and expense, procure and maintain throughout theterm of this Agreement a property insurance policy insuring all of the Tenant Equipment. All proceeds of such insurance shall be used to repair, replace, or remove the Tenant Equipment in a manner consistent with the terms Of this Agreement. Said insurance policies shall provide that the policy shall not be canceled, fail to be renewed or materially amended without at least 30 days written notice to the insureds. Landlord and Tenant shall include a waiver of subrogation in ; their respective policies of property insurance. Ail insurance required to be carried by Tenant herein shall be with an insurance company licensed to do business in the State in which the Buildingis located°and rated not lower than A/X in the:-most recent A.M. Best Rating Guide. 9. INDEMNITY. Landlord and Tenant each shall indemnify the other against and hold the other harmless from any and all costs (including reasonable attorneys' fees) and claims of liability or loss which arises out of the ownership, use and/or occupancy of the Site by the indemnifying party. This indemnity does not apply to any claims arising from the sole negligence or intentional misconduct of the indemnified party. The indemnity obligations under. this Paragraph will survive termination of this Agreement. 10. DEFAULT. If either party is in default under this Agreement for a period of (a) ten days following receipt of notice from the non-defaulting party with respect to a default that may be cured solely by the payment of money, or (b) 30 days following receipt of notice from the non-defaulting party with respect to a default that may not be cured solely by the payment of money, then, in either event, the non-defaulting party may pursue any remedies available to it against the defaulting party under applicable law, including, but not limited to, the right to terminate this Agreement. In the non-monetary default may not reasonably be cured within a 30- dayperiod, this Agreement may not be terminated if the defaulting party commences action to .cure the default within such 30-day period and proceeds with due diligence to fully cure the default. 11. MISCELLANEOUS. a. Landlord covenants that at all times during the term of this Agreement, Tenant's quiet enjoyment of its rights under this Agreement shall not be disturbed so long as Tenant is not in default. b. In the event of any litigation between the parties, the prevailing party shall be entitled to reasonable attorney's fees. a .This Agreement may not be modified, nor its provisions waived, except by a writing signed by each of the parties hereto. {00013742.DOC / 2} - $ - EXHIBIT A d. Any notice, correspondence, demandor other communication, which is required or permitted by this Agreement, shall be in writing and shall be sent postage prepaid, by certified mail, returnreceipt requested, or by hand or overnight express delivery, receipt requested, to either party hereto at its address hereinabove set forth, or at such other address as either such party shall have provided the other by written notice similarly given. Any notice shall be deemed given on the date delivery is receipted or refused. e. This Agreement shall be governed by the laws of the State of Arizona. The parties agree that Pima County, Arizona shall be the venue for any litigation regarding. this Agreement. f. If any term or provision of this Agreement, or the application thereof to any person or circumstance shall; to any extent, be invalid or unenforceable, .the remainder of this Agreement, or the application of such term or provision to persons, entities or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby, and each term and provision of this Agreement shall be valid and enforceable. g. This Agreement embodies the entire agreement between the parties hereto with relation to the transactions contemplated hereby, and there have been and are no covenants, agreements, representations, warranties or restrictions between the parties hereto with regard thereto other than those specifically set forth herein. Each party shall, without charge, furnish the other with such documents not creating any obligations additional to those imposed by this Agreement as may reasonably be requested to fully .effectuate the transactions contemplated by this Agreement. h. Landlord acknowledges. that in the event of a breach of this Agreement by Landlord, Tenant shall have the right to obtain specific performance or other injunctive relief in addition to monetary damages and any other remedies permitted by law. i. The individuals executing this Agreement on behalf of Landlord and Tenant each represent that they are authorized to execute this Agreement on behalf of Landlord or Tenant, as the. case. maybe, and at upon execution hereof this Agreement shall be binding upon Landlord or Tenant, as the case maybe. j. . , Either party shall, within ten days after request by the other, provide an estoppel letter as to such matters as are reasonably requested. k. This. Agreement is an agreement running with the land with respect to the Towers and, upon any sale or other transfer of the Towers, Landlord shall assign this Agreement to the transferee,and the. transferee shall assume the obligations of Landlord under this Agreement whereupon Landlord shall have no further obligations under this Agreement from and after the date thereof. {00013742.DOC / 2} - O - EXHIBIT A 1. Landlord and Tenant acknowledge that this document shall not be .construed in favor of or against the drafter by virtue of said party being the drafter. 12. ASSIGNMENT. Tenant shall not assign, sublet or transfer this Agreement without Landlord's prior written approval; provided,. however, that such approval. shall not be required if uch assignment, sublet or transfer: (i) is as a result or part of a merger; consolidation, other entity level transaction, or a transaction involving the sale of substantially all. of Tenant's assets; (ii) has a good faith business purpose which is not designed principally to avoid the provisions of this Paragraph 10, provided, however, that such assignee, sublessee or transferee has the expertise and financial wherewithal to fulfill Tenant's obligations under this Agreement; or (iii) is to an entity that controls, is under common control with or is controlled by Tenant. 13. SUBORDINATION. .This Agreement is subject to any bona fide mortgages, ground leases and all amendments and modifications thereof now or hereafter. 14. HAZARDOUS SUBSTANCES.Tenant agrees that it will not use, generate, store or dispose of any Hazardous Material (defined below) on, under, about or within the Towers in violation of any law or regulation. As used in this paragraph, "Hazardous Material" shall mean hazardous or radioactive material, polychlorinated biphenyls, friable asbestos or other hazardous or medical waste substances as defined by the Comprehensive Environmental Response, Compensation and Liability Act, as amended, or by any other federal, state or local law, statute, rule, regulation or order concerning environmental matters. This paragraph shall survive the termination of this Agreement. 15. TAXES... During the term and any extension hereof, Tenant shall be responsible for the declaration and :payment of any applicable taxes or'assessments against the personal. property .owned by Tenant located in the Towers. Tenant agrees, upon Landlord's request, to provide Landlord with timely evidence satisfactory to Landlord that all taxes due and payable for Tenant's property have been paid. 16. RECORDING. This Agreement shall not be recorded. However, Lessor agrees to execute and deliver to Lessee a Memorandum of Lease in the form attached to and incorporated by this reference in this Agreement as Exhibit 4 and acknowledges Lessee's right at Lessee's sole option and cost to record the Memorandum of Lease. in the office of the Pima County Recorder. 17. CONFLICT OF INTEREST. This Agreement is subject to A.R.S. §38-511, which provides for cancellation in .certain instances involving conflicts of interest.. 18. EXCUSABLE DELAY. If either party is unable due to causes beyond its reasonable control to carry out -its obligations under this Agreement in whole or in part and if such Party gives written notice and full details of an excusable delay (including, without limitation, a force majeure event) to the other as soon: as practicable after .the occurrence of the event, then_the_ obligations of the affected Party will be suspended to the extent reasonably required as a result of such event. Excusable Delay means an event that is not within the reasonable control of the affected Party, including, without limitation, war, riots, civil insurrection or acts of a common {00013742.DOC / 2} - 7 - EXHIBIT A enemy, fire, flood; strikes or other labor difficulty, acts of civil or military authority, .including: government laws, orders, .actions, inactions or regulations, embargoes. Lessor:. Lessee: Towle OF MARANA, an Arizona municipal SIMPLY BITS, LLC, an Arizona limited corporation liability company By: Ed Honea, Mayor Date: ATTEST: Town Clerk APPROVED AS TO FORM: Town Attorney By: Name/Title: Date: STATE OF ll JSS County of ) The foregoing instrument was acknowledged before me on April _, 2009, by ,the Of SIMPLY BITS, LLC, an Arizona limited liability company, on behalf of the company. My commission expires: Notary Public - {00013742.DOC / 2} - $ - EXHIBIT A ~~. ;~ ~ ~. Exhibit 2 ~ ~~ F ~ `' 1 Marana.Operations Center ~~:~ ~ ~.~; ~_~~ 5100 W. Ina Rd ~ ~~ ~ ~ ~`; ~$ ~ ~y~'. Marana, Az ;; I~'.~ Lat: Deg 32, Min 20, Sec 18 _ ~ ~.; ~ ~. Long: Deg -111., Min 4, Sec 24 ~~ ~x ~ ~ ,~ P-- ~- {~ 'n r ~ r ~i', fi. Y ) >*, _ ~. G ~, ~.' ~~ .. ., ~ ~ ~ r .. ~. ~ s a »«~«r .. ~;~ ~ ~ .Tower Location Y ° '~ ' ~~ x ~,~, r ' ;~ ~ ~ "~ ' " ~' s rr ~,; _ ~. ~ , "~., ~ - ,. c z } 2, S 1 ..~ ~ z ~: ,. ~, . s+ # _ .. ~., ~ ~~, . ~ cam'-_ i .._:. ~. € r ;j' t» _ ~ . = '''~r`'>~: ~ ~ Existing Parking ~ .~ r.4 ~ .. ,~ Spaces ~ ~ ~~~.~ ~ .. ,~ { .~_ ~ .. . ~, ~. ., ~ . t"""" P ~ ~: .. y Saki 'l t~~ ..w. . Y ',~, fC n T~ 4 1 y~. ~ T ~ ''a~' ~. 1~ v ~ »,: .». ~, , ~ ~ ~' ~ ;~ ~ ' Proposed Access ~ .. ~ i r Easement h : r~ F~ YY ~ y~. ~'.. .,~ I ~ '.x` 3 ~ ~. is ~ ~ ~i4'i..- _. »;`-. v 3 ~, ».L ~ s ~ it .. s .~ . ~,~ ~~ w ~~ x' ..... ~ !~ i s tyR.7. x '4 , S r ~ ! .~. ~~'~ . ~~ ~'' ~ 6; ~~ ~~';' I FF ~~ S } w ~ - IR vM ~ s;}'y h3,,~,G r s .:. '': s '~ < i : v 1 ~.; '"a%'. ..r ~` r ~ ~ '. i. V~~) A g' a S •"t' it.U MttvR'if~i.G~s. .~ Town of Marana Tower Sites List of Simply Bits Equipment Date March 25, 2009 EXHIBIT 3 Site/Equipment TX RX Fcc License Tower Equipment Description {for info onl Frequency frequency 'Call Sign Height.. Marana Municipal Complex (Town Halll (Licensed) 1 Ring 5.7 Motorola`Canopy 5735-5840 Same 80' CMM - Cluster Mana ement Module 80' P to P (2 ft sq panel) Simply Bits. Wireless Bridge 5480 Same 80' P to P ~2 ft sq panel) Simpf Bits Wireless Bride 3600 Same 80' Inside 1 U 16 port Cat5e punch down panel 1 U Middle Atlantic power strip 1 U Backbone router Customer Access Router Marana DMZ firewall/router APC 2200RM UPS (Mgmt card belongs to Marana) Marana Operational Center 1 Ring 5.7 Motorola Canopy 5735-5840 Same 90' P to P (2 ft panel) Simply Bits Wireless Bridge 5180 Same 90' P toP (Backhau120) Motorola Canop 5275 Same 85' 2' Dish Andrew/P-Com 38825 39525 WPNDG76 75' 4' Dish RadioWaves/Tran o 18080 19640 WQJL853 70' 2' Dish RadioWaves/DMC Stratex 19540 17980 WQJL853 75' Inside Stratex XP4 IDU Tel-Link P-Com IDU 2 RlCi-T3 TrangoLink Giga IDU 1 U Customer Access Router 1 U Backbone Router 1 U Marana DMZ Router/Firewall Dell PowerConnect 3424 24 port switch Servertech Sentry 48V PDU 3 Duracomm 1248 power supplies EXHIBIT 3 When recorded, return to: SIMPLY BITS LLC 5225 North Sabino Canyon Road Tucson, AZ 85750 MEMORANDUM OF LEASE APN: 217-37-0560 Alva 226-35-O11A THIS MEMORANDUM OF LEASE is entered into as of the day of April, 2009, by and between the Town of Marana, an Arizona municipal corporation, whose address is 11555 W. Civic Center Drive Marana, AZ 85653 ("Landlord") and SIMPLY BITS LLC., an Arizona limited liability company, with its principal place of business located at 5225 .North. Sabino Canyon Road, Tucson, Arizona 85750 ("Tenant"). All of the following are provided for more fully in the Agreement: 1. Landlord and Tenant entered into a Telecommunications Site Agreement ("Agreement") dated as of April _, 2009, for the purpose of Tenant operating and maintaining communications equipment and other improvements ("Improvements") on existing communication towers. 2. The term of Tenant's tenancy under the Agreement is for five years, with three successive five year options to renew. 3. 'The leased Sites, which are the tower space that is the subject of the Agreement, are located on existing :communication towers located on the. Landlord's property located at 13251 N. Lon Adams. Road and at 5100 W. Ina Road in the Town of Marana, County of Pima, State of Arizona, as identified in Exhibit 1 and Exhibit 2 attached to and incorporated in this Memorandum of Lease by this reference, including appurtenant utility and vehicular access. IN WITNESS WHEREOF, the parties have executed this Memorandum of Agreement as of the date first written above. Lessor: TowN OF MARANA, an Arizona municipal corporation By:_ Date: Ed Honea, Mayor ATTEST: -Town Clerk APPROVED AS TO FORM: Lessee: SIMPLY BITS, LLC., an Arizona limited liability company By: Name/Title: Date: STATE OF ss County of ) - The foregoing .instrument was acknowledged before me on April _, 2009, by ,the of SIMPLY BITS LLC., an Arizona limited liability company. Town Attorney {00013903.DOC /} My commission expires: Town of Marana/Simply Bits Lease Agreement EXHIBIT 4 Notary Public 3/25/2009 2:50 PM Memorandum of Understanding Between .the Town of Marana and Simply Bits, LLC 'Effective Date April 1, 2009 ` Introduction The Town of Marana entered into three separate thirty-six month services agreements with Panzica Enterprises, LLC, an Arizona limited liability company, dba WJM Computer Solutions for the term of April 1, 2006 through March 31, 2009. Simply Bits is the sole supplier: of services under these three contracts, and since June 2008, "Panzica" has assigned the Town-of Marana's contract payments for services directly to Simply Bits. These contracts are about to expire. The Town of Marana and Simply Bits desire to continue their business relationship, for a defined period of time, guided by the terms and conditions of the three "Panzica" contracts; and therefore, the parties agreed as set forth below: Understanding The Extension Period For All Three Contracts: The extension period shall be three months, from April 1, 2009 through June 30, 2009. Thereafter, the extension term shall automatically continue on a month to month basis until the receipt, by either party, of a written notice of cancellation at the end of a month. The notice of cancellation will advise the other party that in 60 days, the extension period, .and consequently the terms and conditions of this Memorandum of Understanding, will expire. Contract # 1 -Bandwidth Contract: extend Simply Bits services. under the guidelines of the "Panzica"...contract as written. No change in payments (Annual: $35,988.00, Monthly: $2,999:00) Simply Bits will automatically increase, at no cost to the Town of Marana, the bandwidth to 60 megabits per second. Contract # 2 -Twenty Connections Contract: extend Simply Bits .services for remote site connectivity and intersection cameras with integration into the Marana network under the guidelines ofthe "Panzica" contract as written. No change in payments (Annual: $42,240, Monthly: $3,520.00) {00013914.DOC / 2} -1- EXHIBIT B Contract # 3 - Warranty and Management Contract: extend Simply .Bits services: for the WAN Management portion under the guidelines of the "Panzica" contract as written. Extend the Warranty portion of Simply Bits services under the guidelines of the "Panzica" contract as written with the following modification: Simply Bits will not provide a warranty on the Altium equipment. Should a failure in the Altium equipment occur during the extension period, Simply Bits will replace the Altium equipment with new, like equipment performing to the same or higher specifications. At the end : of the extension period and in the event of an Altium failure, the Town of Marana shall have two options: 1. Purchase the replacement equipment 2. Not Purchase the replacement equipment Should the Town of Marana elect to purchase the replacement equipment, they will receive a warranty repair credit of $4,500 to be applied (deducted) to the purchase price of the replacement equipment. By ~ way of example, suppose that the link .between Marana Municipal Center and Northwest Fire Station 37 fails. Because the Altium equipment is not under warranty, Simply Bits will install new; like equipment. At the end of the extension period, the Town of Marana elects to purchase the equipment for $16,250. Example Only Licensed high-speed microwave link. (est) $17,250 Ancillary new equipment such as surge su resser, eta (est) $2,000 Warranty Re air Credit ($4,500) Licensing/Fre uenc Co-ordination (est) $1,500 Pa entto Sim 1 Bits. (est) $16,250 (or a combination of cash and TOM book credit reduced) Note on rough estimates: Simply Bits will provide a detailed price list on Tuesday, March 24, 2009 Equipment at Beacon Hill Facility: On January 4, 2005, the Town of Marana entered into a "Beacon Hill Communications Site Lease and Settlement Agreement" {the "Beacon Hill Agreement") with the owner of Beacon Hill, which included a provision stating that {00013914.DOC / 2} -2- EXHIBIT B the Town of Marana "is not permitted to use the Premises to provide third-party communications services." In August or September 2006, certain communications equipment owned by the Town and ocated on Beacon Hill was replaced with communications facilities owned by Simply Bits. Simply Bits used the equipment not only to provide service for the Town of Martina but also for other third parties. Neither Simply Bits nor the Town of Marana representative who authorized the replacement of the equipment realized the conflict with the Beacon Hill Agreement, and Simply Bits equipment has remained on Beacon Hill and has continued to be used in the same manner until the date of this Memorandum of Understanding. Because the Simply Bits equipment was placed on Beacon Hill for the.Town's benefit and cannot now be removed without causing immediate harm to the Town of Marana's communications and to the operations of Simply Bits, the Town shall be `responsible to contact the owner of Beacon Hill and to .pay any rents, fees,. or penalties associated with Simply Bits' placement of its equipment on Beacon Hill during the period that Simply Bits is providing service under the Three Contracts, as extended by this Memorandum of Understanding. The Town will immediately pursue a settlement agreement to compensate the owner of the Beacon Hill property for allowing the Simply Bits equipment to be installed on Beacon Hill through the date of termination of the Three Contracts as extended by this Memorandum of Understanding. Simply Bits will pursue a lease agreement with the owner of the .Beacon Hill property before the date. of termination of the Three Contracts as extended by this Memorandum of Understanding. At that point, if the owner of the Beacon Hill. property decides not to enter into a direct agreement with Simply Bits but allows the current Simply Bits equipment to remain in place pursuant to the same terms as the Town's settlement agreement with the owner of the Beacon Hill property, Simply Bits shall begin making monthly payments to the Town which shall be passed through to the owner of the Beacon Hill property. Simply Bits shall remove their equipment from Beacon Hill before the<date of termination of the Three Contracts as extended. by this Memorandum of Understanding if no agreement has been reached with. the owner of the Beacon Hill property to allow it to remain in place. If Simply Bits successfully negotiates. an agreement with the owner of Beacon Hill and is permitted to leave its equipment on Beacon Hill, the Town hereby agrees to allow the currenf Simply Bits equipment and antennas to remain in their current location on and within the small Beacon Hill building maintained by the Town until the expiration of the Beacon Hill Agreement. {00013914.DOC / 2} -3- EXHIBIT B Miscellaneous: Except as modified or replaced by the terms of this Memorandum of Understanding, the provisions of the.Three Contracts shall continue..and remain in place throughout the extension period. This Memorandum is subject to the provisions of A.R.S. § 38-511, which provides for cancellation of contracts by public agencies in certain instances involving conflicts of interest. The terms of this Memorandum of Understanding have been arrived at by negotiation between the parties, and the terms of this Memorandum of Understanding shalLnot be treated as having been written by either of the parties for purposes of interpretation. The Town of Marana and Simply Bits, LLC have executed this Memorandum of Understanding as of the date below: Town of Marana By: Gary Hudman Its Technology Services Director Signature Date {00013914.DOC / 2} Simply Bits, LLC By: Bradley lieder Tts: Managing Member Signature bate -4- EXIIIBIT B TELECOMMUNICATIONS SITE AGREEMENT BETWEEN SIMPLY BITS AND TOWN OF MARANA THIS TELECOMMUNICATIONS SITE AGREEMENT (this "Agreement") is dated April ~, 2009, by and between SIMPLY BITS, LLC, an Arizona limited liability company, having an office at 5225 North Sabino Canyon Road, Tucson, AZ 85750 ("Tenant") and the Town of 1VIARANA, an Arizona municipal corporation, having an office at 11555 West Civic Center Drive, Marana, AZ 85753 ("Landlord"). Tenant and Landlord are sometimes referred to collectively as the parties, any one of which is sometimes individually referred to as a party. RECITALS A. Landlord is the owner of two properties known as the Marana Municipal Complex and the Marana Operations Center, hereafter referred to as the "Properties." B. Landlord and Tenant desire to enter into this lease for Tenant space on communication towers located on the Properties (the "Towers"), as shown on the plans attached to and incorporated by this reference as Exhibit 1 (Marana Municipal Complex) and Exhibit 2 (Marana Operations Center) (the particular leased locations as so identified being collectively referred to in this Agreement as the "Sites," and individually referred to as the "MMC Site" and the "MOC Site" respectively). NOW THEREFORE, in consideration of the covenants and agreements hereinafter set forth to be performed by the parties, it is agreed by and between Landlord and Tenant as follows: AGREEMENT 1. LEASE AND USE. Landlord hereby leases to Tenant, its successors and assigns, the Sites, which will be used by Tenant for the purpose of operating, maintaining and repairing the existing equipment described particularly on Exhibit 3 attached to and incorporated in this Agreement by this reference, and the following (all of which is collectively referred to as the "Tenant Equipment"): a. At the MMC Site, the Tenant may add up to two point-to-point backhaul links (hereinafter "P-P Links"). b. At the MOC Site,. Tenant may remove its routers and firewalls from Landlord's rack space. c. At the MOC Site, Tenant may remove one of its three P-P Links. d. At the MOC Site, Tenant may add up to two P-P Links, with antennas or dishes directed toward Northwest Fire District Station 37 and Beacon Hill, respectively, each of which shall not exceed four feet in length or diameter. e. Tenant may replace Tenant Equipment with equipment that the Town, acting through the Marana Technology Services Department, agrees takes up substantially the same amount of space, uses substantially the same amount of {00013742.DOC / 2} - 1 - electricity, and uses the identical frequencies. The Marana Technology Services Department shall respond to Tenant's request to replace or add equipment within ten days. f. Any change in Tenant Equipment located on the Sites otherthan what is described in paragraphs a through d above shall require an amendment to this Agreement. 2. TERM. The term of this Agreement shall be five years (the "Initial Term"), beginning on the date hereof (the "Commencement Date"), subject to extension or earlier termination in accordance with the provisions hereof. This Agreement will be automatically renewed for three additional terms (each a "Renewal Term") of five years each, unless Tenant provides Landlord with notice of Tenant's intention not to renew not less than 90 days prior to the expiration of the Initial Term or any Renewal Term. Anything in the foregoing notwithstanding, the Tenant may terminated this Agreement at any time if any of the following occurs: (a} Tenant is unable to obtain or maintain any license, permit or other approval necessary for the operation of the Tenant Equipment; or (b) if Tenant is unable to occupy and utilize the Sites due to an action of the FCC, including without limitation, a tack back of channels or change in frequencies; or (c) if any environmental report for the Property reveals the presence of any Hazardous Material after the Commencement Date. Anything in the foregoing notwithstanding, the Tenant may terminated this Agreement for its convenience and without cause upon six months' notice to Landlord, provided that Tenant's termination does not affect communication services provided to Landlord. 3. RENT. Tenant shall pay to Landlord in advance a monthly rent of $350 per month for the period April 1, 2009 through September 30, 2009. Thereafter, Tenant shall pay to Landlord in advance a monthly rent in the amount set forth in the table below (the "Base Rent") for the remainder of-the "Initial Term," calculated based on the Tenant Equipment actually in place on the Sites as of the first day of the month for which rent is being paid. The Base Rent shall be payable on the first of the month, with no proration for partial months. At the beginning of each five year renewal term, the Base Rent shall increase over the previous five year base rate by 15%. Rent includes the use of electricity. Tenant shall pay Landlord Rent as follows: Sites Initial Term Base Monthl Rent MMC Site, with no change of $175 Tenant Equi ment MMC Site, each additional P-P $35 Link-(see l.a) MOC Site, with existing $330 Tenant E ui ment MOC Site, removing routers $280 and firewalls (see l.b) MOC Site, removing routers $245 and firewalls, and removing one P-P Link see l.b and c MOC Site, each additional P-P $35 Link (see ¶l.d) {00013742.DOC / 2} - 2 - Landlord shall have the right to survey the electric consumption of the Tenant Equipment and if any such survey discloses that the average electric consumption of the Tenant Equipment is greater than $30 per month per site, then such amount shall thereafter be adjusted to reflect current consumption. 4. MAINTENANCE, OPERATION AND REPAIR OF TENANT EQUIPMENT. a. Landlord shall provide to Tenant the existing space on the Sites, and access to the Sites in substantially the same manner as the Tenant currently has space and access, and all existing wiring, cabling and electrical fees to operate the Tenant Equipment. Tenant shall be permitted to enter the Sites as Tenant reasonably determines is reasonably necessary to operate, maintain. and repair the Tenant Equipment and to provide any contracted services to Landlord and other Tenant customers. b. Prior to replacing or modifying Tenant Equipment or improvements not located on the Sites on the Commencement Date, Tenant shall give Landlord a reasonably detailed drawing or written description thereof and shall not proceed without the prior approval of Landlord, acting through the Marana Technology Services Director, as provided in this Agreement. c. All operations, maintenance, repairs and replacement of the Tenant Equipment shall be performed at Tenant's sole cost and expense, in a good and workmanlike manner, only after obtaining any permits required by law, in compliance with all applicable laws and in a manner designed to minimize any interference with the operation of the Towers'and the Landlord's operations. Tenant shall, at its sole cost and expense repair or refinish any surface of the Site that is damaged by or during the installation or operation of the Tenant Equipment and caused by Tenant or any of its agents, representatives, employees, contractors, subcontractors, or invitees. If Tenant fails to repair or refinish any such damage, Landlord may, in its sole discretion, repair or refinish such damage and Tenant shall reimburse Landlord of all reasonable costs and expenses incurred in such repair or refinishing, provided, however, that Landlord shall give Tenant ten days written notice before taking any action to repair or refinish damage. d. Upon or within 90 days after the expiration or termination of this Agreement, Tenant shall remove from the Tower and or Towers all of the Tenant Equipment and other personal property of Tenant located in the Tower and or Towers; except that Tenant shall leave any conduits, risers, wiring,. cabling and similar installations located in walls, ceilings, floors, risers, conduits and similar elements in its then "as is" condition and properly labeled at both ends and shall remove all other Tenant Equipment. Tenant shall repair all damage caused by such removal and restore the affected portions of the Tower and or Towers to the extent practicable to at least the condition existing prior to the installation thereof, ordinary wear and tear excepted. Any Tenant Equipment not removed within such 90 day period shall be deemed abandoned and maybe disposed of by Landlord, at Tenant's reasonable expense, without recourse or liability. The provisions of this Paragraph shall not serve as permission for Tenant to hold {00013742.DOC / 2} - 3 - over, nor serve to extend the term of this Agreement. Tenant's obligations under this Paragraph shall survive the expiration or earlier termination of this Agreement. e. Tenant understands and agrees that the structural integrity of the load bearing capability of the Towers is of critical importance to Landlord. Tenant shall provide specifications and plans sufficient to allow Landlord to determine whether these concerns are protected, and Tenant agrees and commits that the actual installation of the Tenant Equipment shall be in accordance with those specifications. f. Tenant, through its designated and approved employees and contractors, shall be solely responsible for the maintenance and care of the Tenant Equipment and connecting equipment and shall maintain the same in a clean, sanitary and safe condition and in good repair and free of any defects at all times. during this Agreement. g. Tenant shall label and identify all Tenant Equipment with Tenant's name and telephone number. 5. ACCESS. Subject to the reasonable Building Rules and Regulations (hereinafter defined) from time to time in effect in the Buildings (including Landlord's reasonable restrictions to ensure security and privacy in the Buildings), Landlord agrees that Tenant and its employees, contractors, subcontractors, agents and representatives shall have access to the Towers, the Sites, and the Tenant Equipment 24 hours a day, 365 days a year. As used herein, "Building Rules and Regulations" shall mean the reasonable security, access, construction, operational, technical, sales, advertising, marketing, service and similar policies,. standards, and guidelines (including requirements relating to contractor qualifications, procedures and insurance), as maybe promulgated by the management of Buildings, as such Building Rules and Regulations maybe reasonably modified from time to time, which Building Rules and Regulations shall be uniformly enforced against all tenants, building contractors and telecommunications service Tenants in a nondiscriminatory manner. 6. VEHICULAR INGRESS AND EGRESS. Landlord grants to Tenant, and Tenant's agents, employees and contractors, anon-exclusive right and easement for pedestrian and vehicular ingress and egress across the Properties as generally described in Exhibits 1 and 2. As depicted in Exhibits 1 and 2, Tenant's vehicular access is limited to areas paved with asphalt or concrete only, which Tenant acknowledges and understands do not extend directly to the Sites, but Tenant shall have full pedestrian access over the Properties from the paved areas to the Sites. Furthermore, in the event that circumstances so require, Tenant shall have vehicular access over the non-paved areas to the Sites only with the prior consent of Landlord. In such event, Tenant shall be responsible for and will promptly repair any damage caused by such access. 7. AUTHORIZED PERSONNEL LIST. For security purposes, Tenant shall provide Landlord with a list of the names of all personnel who are authorized to enter onto the Sites pursuant to this Agreement. The list shall be updated. whenever a change. of personnel occurs. Landlord is authorized to block entry to any personnel whose name is not on the list. This Section shall be interpreted as a right, but not an obligation, of Tenant to police or restrict entry onto the Sites. {ooois~42.voc i z} - 4 - 8. INSURANCE. Tenant shall carry, or cause to be carried, throughout the term of this Agreement, at its sole cost and expense, with carriers licensed to do business in the State in which the Towers are located as follows: (a) workers' compensation benefits insurance to the extent and in the amounts required. by applicable governmental or quasi-governmental laws, rules, regulations and requirements (collectively, "Governmental Requirements"); and (b) bodily injury and property damage insurance with a combined single limit of at least $1,000,000 per occurrence. Tenant shall, at its sole cost and expense, procure and maintain throughout the term of this Agreement a property insurance policy insuring all of the Tenant Equipment.. All proceeds of such insurance shall be used to repair, replace, or remove the Tenant Equipment in a manner consistent with the terms of this Agreement. Said insurance policies shall provide that the policy shall not be canceled, fail to be renewed or materially amended without at least 30 days written notice to the insureds. Landlord and Tenant shall include a waiver of subrogation in their respective policies of property insurance. All insurance required to be carried by Tenant herein shall be with an insurance company licensed to do business in the State in which the Building is located and rated not lower than A/X in the most recent A.M. Best Rating Guide. 9. INDEMNITY. Landlord and Tenant each shall indemnify the other against and hold the other harmless from any and all costs (including reasonable attorneys' fees) and claims of liability or loss which arises out of the ownership, use and/or occupancy of the Site by the indemnifying party. This indemnity does not apply to any claims arising from the sole negligence or intentional misconduct of the indemnified party. The indemnity obligations under this Paragraph will survive termination of this Agreement. 10. DEFAULT. If either party is in default under this Agreement for a period of (a) ten days following receipt of notice from the non-defaulting party with respect to a default that may be cured solely by the payment of money, or (b) 30 days following receipt of notice from the non-defaulting party with respect to a default that may not be cured solely by the payment of money, then, in either event, the non-defaulting party may pursue any remedies available to it against the defaulting party under applicable law, including, but not limited to, the right to terminate this Agreement. In the non-monetary default may not reasonably be cured within a 30- dayperiod, this Agreement may not be terminated if the defaulting party commences action to cure the default within such 30-day period and proceeds with due diligence to fully cure the default. 11. MISCELLANEOUS. a. Landlord covenants that at all times during the term of this Agreement, Tenant's quiet enjoyment of its rights under this Agreement shall not be disturbed so long as Tenant is not in default. b. In the event of any litigation between the parties, the prevailing party shall be entitled to reasonable attorney's fees. c. This Agreement may not be modified, nor its provisions waived, except by a writing signed by each of the parties hereto. {00013742.DOC / 2} - 5 - d. Any notice, correspondence, demand or other communication, which is required or permitted by this Agreement, shall be in writing and shall be sent postage prepaid, by certified mail, return receipt requested, or by hand or overnight express delivery, receipt requested, to either party hereto at its address hereinabove set forth, or at such other address as either such party shall have provided the other by written notice similarly given. Any notice shall be deemed given on the date delivery is receipted or refused. e. This Agreement shall be governed by the laws of the State of Arizona. The parties agree that Pima County, Arizona shall be the venue for any litigation regarding this Agreement. f. If any term or provision of this Agreement, or the application thereof to any person or circumstance shall, to any extent, be invalid or unenforceable, the remainder of this Agreement, or the application of such term or provision to persons, entities or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby, and each term and provision of this Agreement shall be valid and enforceable. g. This Agreement embodies the entire agreement between the parties hereto with relation to the transactions contemplated hereby, and there have been and are no covenants, agreements, representations, warranties or restrictions between the parties hereto with regard thereto other than those specifically set forth herein. Each party shall, without charge, furnish the other with such documents not creating any obligations additional to those imposed by this Agreement as may reasonably be requested to fully effectuate the transactions contemplated by this Agreement. h. Landlord acknowledges that in the event of a breach of this Agreement by Landlord, Tenant shall have the right to obtain specific performance or other injunctive relief in addition to monetary damages and any other remedies permitted by law. i. The individuals executing this Agreement on behalf of Landlord and Tenant each represent that they are authorized to execute this Agreement on behalf of Landlord or Tenant, as the case maybe, and at upon execution hereof this Agreement shall be binding upon Landlord or Tenant, as the case maybe. j. Either party shall, within ten days after request by the other, provide an estoppel letter as to such matters as are reasonably requested. k. This Agreement is an agreement running with the land with respect to the Towers and, upon any sale or other transfer of the Towers, Landlord shall assign this ..Agreement to the transferee and the transferee shall assume the obligations of Landlord under this Agreement whereupon Landlord shall have no further obligations under this Agreement from and after the date thereof. {00013742.DOC / 2} - O - 1. Landlord and Tenant acknowledge that this document shall not be construed in favor of or against the drafter by virtue of said party being the drafter. 12. ASSIGNMENT. Tenant shall not assign, sublet or transfer this Agreement without Landlord's prior written approval; provided, however, that such approval shall not be required if such assignment, sublet or transfer: (i) is as a result or part of a merger, consolidation, other entity level transaction, or a transaction involving the sale of substantially all of Tenant's assets; (ii) has a good faith business purpose which is not designed principally to avoid the provisions of this Paragraph 10, provided, however, that such assignee, sublessee or transferee has the expertise and financial wherewithal to fulfill Tenant's obligations under this Agreement; or (iii) is to an entity that controls, is under common control with or is controlled by Tenant. 13. SUBORDINATION. This Agreement is subject to any bona fide mortgages, ground leases and all amendments and modifications thereof now or hereafter. 14. HAZARDOUS SUBSTANCES.Tenant agrees that it will not use, generate, store or dispose of any Hazardous Material (defined below) on, under, about or within the Towers in violation of any law or regulation. As used in this paragraph, "Hazardous Material" shall mean hazardous or radioactive material, polychlorinated biphenyls, friable asbestos or other hazardous or medical waste substances as defined by the Comprehensive Environmental Response, Compensation and Liability Act, as amended, or by any other federal, state or local law, statute, rule, regulation or order concerning environmental matters. This paragraph shall survive the termination of this Agreement. 15. TAXES. During the term and any extension hereof, Tenant shall be responsible for the declaration and payment of any applicable taxes or assessments against the personal property owned by Tenant located in the Towers. Tenant agrees, upon Landlord's request, to provide Landlord with timely evidence satisfactory to Landlord that all taxes due and payable for Tenant's property have been paid. 16. RECORDING. This Agreement shall not be recorded. However, Lessor agrees to execute and deliver to Lessee a Memorandum of Lease in the form attached to and incorporated by this reference in this Agreement as Exhibit 4 and acknowledges Lessee's right at Lessee's sole option and cost to record the Memorandum of Lease in the office of the Pima County Recorder. 17. CONFLICT OF INTEREST. This Agreement is subject to A.R.S. §38-511, which provides for cancellation in certain instances involving conflicts of interest. 18. EXCUSABLE DELAY. If either party is unable due to causes beyond its reasonable control to carry out its obligations under this Agreement in whole or in part and if such Party gives written notice and full details of an excusable delay (including, without limitation, a force majeure event) to the. other as soon as practicable after the occurrence of the event, then the obligations of the affected Party will be suspended to the extent reasonably required as a result of such event. Excusable Delav means an event that is not within the reasonable control of the affected Party, including, without limitation, war, riots, civil insurrection or acts of a common {00013742.DOC / 2} - 7 - enemy, fire, flood, strikes or other labor difficulty, acts of civil or military authority, including government laws, orders, actions, inactions or regulations, embargoes. Lessor: Lessee: Tow1v of MAItANA, an Arizona municipal corporation 9 By: Ed Honea, SIMPLY BITS, LLC, an Arizona limited liability company y., By: V Name/Title: oC'G ~ ^ ~ Date: ~~/6' a `~ STATE OF /~ Z' County of ~ ^~ ~ lSS The foregoing instrument was acknowledged before me on April j~o , 20.09,, 'b/y ~iV~tG(~ ~ . ~~G/ ,the rw~r ~[~/ Of IMPLY BITS, LLC, ari Arizona limited liability company, on behalf of the company. My commission expires: ~~7~ O~ (t V ~'Zp r 2 Notary Public Sandra Shekon Notary Public -Arizona Plma County My Commission Expires May 16,2012 {00013742.DOC / 2} - $ - ATTEST: own Cler Exhibit 1 Marana Municipal Complex 13251 N. Lon Adams Rd _ Marana, Az ~~ '~ _` ,gin ..~ ,~ j£~~~ ; d. .#,d '~ Lat: Deg 32, Min 26, Sec 48 _ ", Long: Deg -111, Min 12, Sec 31 ~~ .~..•+~ ~ ., ~~ ~', .k._ . ~ ~` ''~ ' ~~. ~. ~~ ~ ~ '. s .. ,~ ., :. f ,. ,~ > ~ ~ ~ ~d ,...,~. :.~>.: t :~ '~ ~~ I ~` k ~~ ~~ '~" ~ j ~ ~'; ::;' e wr..i~! ~'~: ' ~. '~ W ~, .,~. s. j '~ F: 3~: a ~ ~ n. y:. ~ .; f~ ~~ ~~ ~~ §i ~ ~ r j ; ;< - y ~a. r ~ ?yes ~~ ~ ~ '~.. ~ ` :. .~ I li~l~~ ~*.~ .. . . } _. ~4 ~~'~ Existing Parking ~ ; ~.: _,~ ~: ''Spaces •" a Tower Location ~' ~': ~.,,~ ~'. >~ ,~~;¢ ~r ~ Proposed 1 ft ~~' .r :Wide Access ~ h "~ Easement by ~t~.. ~~s 'f ~' :~` ~~~ ~ ~ 4 ~ '~ If :. , ~. w> ~ >. .£ ~ ~ 4 . ti f .. yocn ,: .fit,, ... .. .: wry-% 4 j Exhibit 2 ~ <, :..: ~~ Marana Operations Center ~..,: 5100 W. Ina Rd kM; ;;~ ~~ s Marana, Az ~~~~ ::~°~ 1 ~`~~ E Lat: Deg 32, Min 20, Sec 18 Long: Deg -111, Min 4, Sec 24 _ ~~_ . ~. 5v. : " . k N . . ~, >~ 3 3 „ ?~.' • i ~" yZ f x . f ~ ~. ,. .~~ ~.~ . .. y . i `~. .r -_ .. ,rw .. .. .... ...._..... ~. .«.. 'Tower Location ~ ' y :~ :.~ ~- : ,~ _> yg _ ~z~ r:: } ~ ~ n ~~ o ~ s .. in «kr .x ~ .. ; _ ~ f r ~ .~ ~. i 3., ~ I i J. r .. .'. ~ , f F A~ ~ 4 1 g, s .. ~llr~ ~ .~.. „, _~.._»»«... 7r I it ,. i= '~:~k ~ ~.~ Existing Parking .~ .~ . ~ ~,:., . .~~ Spaces r .~<.~. °~~ ~ - .. ~ . ~ ~~.."' fir, H ~ .: :'. w n r~ W .» r< ~ ~> 1 • x .a ` ~ ~ ~, ': ~ r ~ }: 3 ~i v, F 1 €~~ ~~ ~a,,,~,,. Proposed ~cce,~:~ ~, ~'`' =~4° ~~.~ ~ ~ Easement .: ,, j. ~ ~ ~ ~ '~ .. .~ 4 s~ t ~ Y s y t' F p, r~ i F ri , ` ~. ~ ~» xr.. ~ ' : ., ~ . Town of Marana Tower Sites List of Simply Bits Equipment Date March 25, 2009 EXHIBIT 3 Sl~e>rEgU1~7111@Ilt TX RX FCC License Tower .Equipment Description (fqr infoonl ~r ~enc Frequenc Cail Sign ~ Hei, ht Marana Municipal Complex (Town Hall) (Licensed) 1 Ring 5.7 Motorola Canopy 5735-5840 Same 80' CMM Cluster Mana ement Module 80' P to P (2 ft sq panel) Simply Bits Wireless Bride 5480 Same 80' P to P (2 ft sq panel) Simpl Bits Wireless Bride 3600 Same 80' Inside 1 U 16 port Cat5e punch down panel 1 U Middle Atlantic power strip 1 U Backbone router Customer Access Router Marana DMZ firewall/router APC 2200RM UPS (Mgmt card belongs to Marana) Marana Operational Center 1 Ring 5.7 Motorola Canop 5735-5840 Same 90' P to P (2 ft panel) Simpl Bits Wireless Bridge 5180 Same 90' P to P (Backhau120) Motorola Canop 5275 Same 85' 2' Disi~ Andrew/P-Com 38825 39525 WPND676 75' 4' Dish RadioWaves/Trango 18080 19640 WQJL853 70' 2' Dish RadioWaves/DMC Stratex 19540 17980 WQJL853 75' Inside Stratex XP4 IDU Tel-Link P-Com IDU 2 RICi-T3 TrangoLink Giga IDU 1 U Customer Access Router 1 U Backbone .Router 1 U Marana DMZ Router/Firewall Dell PowerConnect 3424 24 port switch Servertech Sentry 48V PDU 3 Duracomm 1248 power supplies EXHIBIT 3 Memorandum of Understanding Between the Town of Marana and Simply Bits, LLC Effective Date April 1, 2009 Introduction The Town of Marana entered into three separate thirty-six month services agreements with Panzica Enterprises, LLC, an Arizona limited liability company, dba WJM Computer Solutions for the term of April 1, 2006 through March 31, 2009. Simply Bits is the sole supplier of services under these three contracts, and since June 2008, "Panzica" has assigned the Town of Marana's contract payments for services directly to Simply Bits. These contracts are about to expire. The Town of Marana and Simply Bits desire to continue their business relationship, for a defined period of time, guided by the terms and conditions of the three "Panzca" contracts; and therefore, the parties agreed as set forth below: Understanding The Extension Period For All Three Contracts: The extension period shall be three months, from April 1, 2009 through June 30, 2009. Thereafter, the extension term shall automatically continue on a month to month basis until the receipt, by either party, of a written notice of cancellation at the end of a month. The notice of cancellation will advise the other party that in 60 days, the extension period, and consequently the terms and conditions of this Memorandum of Understanding, will expire. Contract # 1 -Bandwidth Contract: extend Simply Bits services under the guidelines of the "Panzica" contract as written. No change in payments (Annual: $35,988.00, Monthly: $2,999.00) Simply Bits will automatically increase, at no cost to the Town of Marana, the bandwidth to 60 megabits per second. Contract # 2 -Twenty Connections Contract: extend Simply Bits services for remote site connectivity and intersection.cameras with integration into the Marana network under the guidelines of the "Panzica" contract as written. No change in payments (Annual: $42,240, Monthly: $3,520.00) {00013914.DOC / 2} -1- Contract # 3 -Warranty and Management Contract: extend Simply Bits services for the WAN Management portion under the guidelines of the "Panzica" contract as written. Extend the Warranty portion of Simply Bits services under the guidelines of the "Panzica" contract as written with the following modification: Simply Bits will not provide a warranty on the Altium equipment. Should a failure in the Altium equipment occur during the extension period, Simply Bits will replace the Altium equipment with new, like equipment performing to the same or higher specifications. At the end of the extension period and in the event of an Altium failure, the Town of Marana shall have two options: 1. Purchase the replacement equipment 2. Not Purchase the replacement equipment Should the Town of Marana elect to purchase the replacement equipment, they will receive a warranty repair credit of $4,500 to be applied (deducted) to the purchase. price of the replacement equipment. By way of example, suppose that the link between Marana Municipal Center and Northwest Fire Station 37 fails. Because the Altium equipment is not under warranty, Simply Bits will install new, like equipment. At the end of the extension period, the Town of Marana elects to purchase the equipment for $16,250. Example Only Licensed high-speed microwave link. (est) $17,250 Ancillary new equipment such as surge su presser, etc. (est) $2,000 Warranty Re air Credit $4,500) Licensin /Fre uenc Co-ordination (est) $1,500 Pa ent to Sim 1 Bits. est $16,250 (or a combination of cash and TOM book credit reduced Note on rough estimates: Simply Bits will provide a detailed price list on Tuesday, March 24, 2009 Equipment at Beacon Hill Facility: On January 4, 2005, the Town of Marana entered into a "Beacon Hill Communications Site Lease and Settlement Agreement" (the "Beacon Hill Agreement") with the owner of Beacon Hill, which included a provision stating that {00013914.DOC / 2} -2- the Town of Marana "is not permitted to use the Premises to provide third-party communications services." In August or September 2006, certain communications equipment owned by the Town and loc~lted on Beacon Hill was replaced with communications facilities owned by Simply Bits. Simply Bits used the equipment not only to provide service for the Town of Marana but also for other third parties. Neither Simply Bits nor the Town of Marana representative who authorized the replacement of the equipment realized the conflict with the Beacon Hill Agreement, and Simply Bits equipment has remained on Beacon Hill and has continued to be used in the same manner until the date of this Memorandum of Understanding. Because the Simply Bits equipment was placed on Beacon Hill for the Town's benefit and cannot now be removed without causing immediate harm to the Town of Marana's communications and to the operations of Simply Bits, the Town shall be responsible to contact the owner of Beacon Hill and to pay any rents, fees, or penalties associated with Simply Bits' placement of its equipment on Beacon Hill during the period that Simply Bits is providing service under the Three Contracts, as extended by this Memorandum of Understanding. The Town will immediately pursue a settlement agreement to compensate the owner of the Beacon Hill property for allowing the Simply Bits equipment to be installed on Beacon Hill through the date of termination of the Three Contracts as extended by this Memorandum of Understanding. Simply Bits will pursue a lease agreement with the owner of the Beacon Hill property before the date of termination of the Three Contracts as extended by this Memorandum of Understanding. At that point, if the owner of the Beacon Hill property decides .not to enter into a direct agreement with Simply Bits but allows the current Simply Bits equipment to remain in place pursuant to the same terms as the Town's settlement agreement with the owner of the Beacon Hill property, Simply Bits shall begin making monthly payments to the Town which shall be passed .through to the owner of the Beacon Hill property. Simply Bits. shall remove their equipment from Beacon Hill before the date of termination of the Three Contracts as extended by this Memorandum of Understanding if no agreement has been reached with the owner of the Beacon Hill property to allow it to remain in place. If Simply Bits successfully negotiates an agreement with the owner of Beacon Hill and is permitted to leave its equipment on Beacon Hill, the Town hereby agrees to allow the current Simply Bits equipment and antennas to remain in their current location on and within the small Beacon Hill building maintained by the Town until the expiration of the Beacon Hill Agreement. {00013914.DOC / 2} -3- Miscellaneous: Except as modified or replaced by the terms of this Memorandum of Understanding, the provisions of the Three Contracts shall continue and remain in place throughout the extension period. This Memorandum is subject to the provisions of A.R.S. § 38-511, which provides for cancellation of contracts by public agencies in certain instances involving conflicts of interest. The terms of this Memorandum of Understanding have been arrived at by negotiation between the parties, and the terms of this Memorandum of Understanding shall not be treated as having been written by either of the parties for purposes of interpretation. The Town of Marana and Simply Bits, LLC have executed this Memorandum of Understanding as of the date below: Town of Marana By: Gary Hudman Its Technology Services Director Signature Date °i~ . ~ '~ Simply Bits, LLC By: Bradley Feder Its: Managing Member Signature ~~~~ Date ~r l~ `"G 9 {00013914.DOC / 2} -4- When recorded, return to: SIMPLY BITS LLC 5225 North Sabino Canyon Road Tucson, AZ 85750 MEMORANDUM OF LEASE APN: 217-37-0560 AND 226-35-O11A THIS MEMORANDUM OF LEASE is entered into as of the I sr day of April, 2009, by and between the Town of Marana, an Arizona municipal corporation, whose address is 11555 W. Civic Center Drive Marana, AZ 85653 ("Landlord") and SIMPLY BITS LLC., an Arizona limited liability company, with its principal place of business located at 5225 North Sabino Canyon Road, Tucson, Arizona 85750 ("Tenant"). All of the following are provided for more fully in the Agreement: 1. Landlord and Tenant entered into a Telecommunications Site Agreement ("Agreement") dated as of April ~, 2009, for the purpose of Tenant operating and maintaining communications equipment and other improvements ("Improvements") on existing communication towers. 2. The term of Tenant's tenancy under the Agreement is for five years, with three successive five year options to renew. 3. The leased Sites, which are the tower space that is the subject of the Agreement, are located on existing communication towers located on the Landlord's property located at 13251 N. Lon Adams Road and at 5100 W. Ina Road in the Town of Marana, County of Pima, State of Arizona, as identified in Exhibit 1 and Exhibit 2 attached to and incorporated in this Memorandum of Lease by this reference, including appurtenant utility and vehicular access. IN WITNESS WHEREOF, the parties have executed this Memorandum of Agreement as of the date first written above. Lessor: TOWN OF MARANA, an Arizona municipal corporation ~'' By. f°-~' ~ ' ~~.. Ed Honea, Mayor Date: ~ `~ _ U Lessee: SIMPLY BITS, LLC., an Arizona limited liability company By: Name/Title: Date: ATTEST: T n Cler APPROVED S TO ORM: /~ 1' ~~ f l Atto ey STATE OF County of ss The foregoing instrument was acknowledged before me on April _, 2009, by ,the of SIMPLY BTI'S LLC., an Arizona limited liability company. My commission expires: { 013903. /} Town of Marana/Simply Bits Lease Agreement Notary Public 3/25/2009 2:50 PM Exhibit 1 Marano Municipal Complex 13251 N. Lon Adams Rd Marana, Az ~ `" ~,~ ~ ~ ;~ .t Kt~t ~~ ~ ~~ ~~ ' i=. Lat: Deg 32, Min 26, Sec 48 __ :~ Long: Deg. -111, Min 12, Sec 31 ;. ...~,~ , ~~ ~ ~ ,~` ~ ,~ r a , M , ~ '` , ~ ~ :, <: +r ~ % M'~ ~: ~.. F r ~. ;~ ~ ~ ~ `.. _ ~ ~ ~s I" ~ , ~ ~ ~ ~. ~ ~ ~ k H" - ~ .- ., - x, ,,tt~ A yy _ [ k ti. t ~S PPP .~rV - C K»i' :Y - Q I. !. ~ I ~ Q ~. i ,1 z _. iid O ~t ~. sue: ~':, YS; ~ ~ ~~ .t.. ~ ~ ,Existing Parking ~ ~.. _~ , Spaces :~ Tower Location s. v .: ~: Y - ~ ~ .' .». - y~? . ~. '> 4 I. V;~ s j.f .i 1~ ~ - - ,. :_ `Pro osed 1 ft ~~ "' ~ t, ~~ : Wide Access ~ 'i` ~~-~` -~ `= ' Easement y~ ,~. ~ - R «I ~r~ Fi 7 ~.~ ~ [ i i . R~V1 ~ i~~~. ;1 ~ ~ Z J' ~ ~ F ~s. Exhibit 2 Marana Operations Center 5100 W. Ina Rd Marana, Az Lat: Deg 32, Min. 20, Sec 18 Long: Deg -111, Min 4, Sec 24 F- ~- k,m _ ~ • b t!a ~~ i'^~ ~- >, a . r a .. ~.. Ya .. yam. „~..,;.a1",~.:.~ ' W' ` Tower Location ~ l~ ~ ~:" ` t ~ ». ~„ t S ,Y1. • _ i~w \L . IF_ 1 E .~^ _... ~'$'`~... .~,,._ Existing Parking ~.