Attachment B - Template U09 Information Technology Equipment Lease Agreement~3.docx

U09 INFORMATION TECHNOLOGY EQUIPMENT LEASE AGREEMENT

THIS U09 INFORMATION TECHNOLOGY EQUIPMENT LEASE AGREEMENT between [ENTER VENDOR NAME], having a general business address of [XXXXXXXXXX] (“Lessor”), and the Executive Office of Technology Services and Security, located at 1 Ashburton Place, 8th Floor, Boston, MA 02018 (“Lessee”) (collectively “the Parties”) will serve as an agreement for the rental and use of equipment in furtherance of the Commonwealth of Massachusetts’ development and maintenance of an emergency radio network. The entire agreement (“Agreement”) between the Parties consists of the following documents, in the following order of precedence. In the event of a conflict, the document of higher precedence shall govern.

(1) Commonwealth Terms and Conditions for Information Technology Contracts

(2) Standard Contract Form

(3) Request for Response [RFR NAME] (“RFR”)

(4) this U09 Information Technology Equipment Lease Agreement and any other documents negotiated between the parties (“Equipment Lease Agreement”)

(5) Contractor’s response to the RFR

IN CONSIDERATION of the promises exchanged herein, the Parties agree as follows:

1. Uses Lessor hereby permits Lessee to use, install, upgrade, repair, and maintain the equipment, tower, and facilities that presently exist, or may exist in the future, (collectively, the “Equipment”), located in a [NUMBER] square foot area (the “Premises”), as part of Lessee’s development and use of an emergency radio network. The Premises are located within the parcel of land identified in the aerial map attached hereto as Exhibit A (the “Property”).

Lessee may, in its sole discretion, install additional Equipment, which will be located in mutually acceptable locations within the Premises, as agreed to by the Parties.

Lessee shall have twenty-four (24) hours a day, seven (7) days a week, vehicular, pedestrian, and utility access to the Premises. Lessor shall ensure the ingress and egress to the Premises remains in a condition such that it is reasonably passable to four-wheel drive standard-sized pick-up trucks.

Lessor will permit Lessee to maintain the Equipment and Premises, and Lessor may not impose restrictions upon any reasonable maintenance work that may be conducted by Lessee or its agents in the course of its normal operations.

Lessor will permit the Lessee to, at its sole cost and expense, complete additions or alterations to the Equipment or Premises as needed in the Lessee’s ordinary course of business, provided that such additions or alterations have been approved by both Parties. Additions or alterations include, without limitation, installation of new Equipment, dismantling of current Equipment, or upgrading of current Equipment if the current Equipment is inadequate for its intended use, as determined by Lessee in its sole discretion. Upon request by either Party, a structural analysis will be performed prior to the commencement of any material additions or alterations.

2. Term, Conditions and Termination This Equipment Lease Agreement shall commence on [DATE] the (“Commencement Date”), for an initial term of fifteen (15) years (“Initial Term”) and may renew, upon written notification by Lessee, for up to five (5) additional periods of five (5) years (each, a “Renewal Term”) (the Initial Term and all Renewal Terms are collectively referred to as the “Term”). It is understood by both Parties that this Equipment Lease Agreement memorializes the intended long-term relationship between Lessor and Lessee regarding the Equipment and the Premises.

Lessor and Lessee acknowledge the importance of this relationship, since the Equipment and Premises are part of a complex radio system, which requires the network to remain in its entirety to support the critical mission of officer and public safety. Both Parties shall work together to mitigate any issues that may arise, in order to meet their obligations under this Equipment Lease Agreement in a timely manner and to preserve this Equipment Lease Agreement. If Lessee breaches any material provision of this Equipment Lease Agreement, Lessor shall provide written notice of such breach and a cure period of at least ninety (90) calendar days from the date of the written notice (“Cure Period”). If such breach is not remediated within the Cure Period, Lessor shall notify Lessee in writing that in its reasonable opinion the breach has not been remediated and Lessor may elect to terminate this Equipment Lease Agreement after allowing Lessee an additional one hundred and eighty (180) calendar day period to transition to a new site.

3. Interference Lessor warrants and covenants that there will be no material interference with Lessee’s activity on the Premises. Any breach of this warranty shall entitle Lessee to terminate this Equipment Lease Agreement. Lessor shall not allow another individual and/or entity to lease or license equipment on the Premises or on neighboring premises if such lease or license would cause material interference to Lessee’s use of the Equipment or Premises. Lessor acknowledges that there will not be adequate remedy at law for non-compliance with this Section 3 (Interference) and therefore, Lessee shall have the right to seek an injunction to specifically enforce the provisions of this section in a court of competent jurisdiction.

In the event that Lessee’s use of the Equipment or Premises causes material interference to Lessor or to another occupant of the Premises or of neighboring premises, Lessor shall notify Lessee in writing and Lessee shall commence work to eliminate said interference within five (5) days of its receipt of notice, or within such extended period as may be required by law. In addition, the Parties shall work in good faith to find a mutually acceptable solution no later than thirty (30) days following the written notice and Lessee shall work diligently thereafter to implement such solution.

4. Fees and Payment Terms Lessee shall pay to Lessor $XXX per month. The fees shall not change for the Initial Term of the Equipment Lease Agreement. Lessor shall have the right to increase the fees by no more than XX% in each Renewal Term.

Fees will be reduced by XX% of the monthly invoice for any period of outage exceeding XX hours for which Lessor is responsible.

The addition or alteration of Equipment shall not require the payment of any additional fees to Lessor, subject to the conditions set forth in Section 1 above.

[[Lessee shall pay Lessor for the cost of the utility consumption, [which payment may be assigned by the Lessor in accordance with Section 8 (Assignment) of the Commonwealth Terms and Conditions for IT Contracts to a third party, including without limitation a utility company or the entity identified as the billed party of the primary meter]. Lessee agrees to have installed, at its cost, a separate meter or submeter at the site for measuring Lessee’s use of electrical power. ]] [[OR Lessor agrees to bear the entire cost of providing the electric power required for the operation of the Equipment covered by this Equipment Lease Agreement.]] Lessor shall issue a [monthly/annual] invoice to Lessee for the use of the site (each, a “Valid Invoice”) within [XX] Business Days of the end of the calendar [month/year]. Valid invoices shall be payable by Licensee in accordance with the Commonwealth’s bill-paying policies.

Unless otherwise agreed to by the Parties, in the form of an executed written amendment hereto, the total amount payable to Lessor by Lessee for the Initial Term shall be the firm fixed price total of [TOTAL].

5. Transfer or Recording Lessor must provide Lessee with prompt written notice of any planned assignment or transfer of this Equipment Lease Agreement. Lessor will not assign or transfer this Equipment Lease Agreement without the express written consent of Lessee, which shall not be unreasonably withheld. If assigned or transferred in accordance with this Section 5, all terms of this Equipment Lease Agreement shall be binding upon the assignee or transferee. Lessor shall not record this Equipment Lease Agreement without the express written consent of Lessee.

6. Removal at Expiration of Term or Other Termination In the event of termination or expiration of the Equipment Lease Agreement, all additions or alternations to the Equipment or Premises made by Licensee, except for permanent additions or alterations including foundational changes and tower reinforcements, shall be removed by Lessee at Lessee’s sole expense within one hundred and eighty (180) days following said termination or expiration, or within another time period as expressly agreed by the Parties. Lessee shall restore the Equipment and Premises to its original condition, except for permanent additions or alterations, ordinary wear and tear, repairs required to be made by Lessor, damage by fire or the elements, damage by acts of God, or damage by Lessor’s or its agent’s negligence.

7. Rights to the Equipment and Premises Lessor warrants and covenants that it possesses the right, or good and sufficient title and interest, to the current Equipment and Premises and has full authority to enter into and execute this Equipment Lease Agreement.

8. Rights to Equipment All of the Equipment that presently exists on the Premises as listed in Exhibit A hereto, and any upgrades to the same made by Lessee during the Term shall remain the property of the Lessor. All of the equipment that may in the future exist on the Premises, as installed by Lessee, or its agents, shall be the property of Lessee. Notwithstanding the fact that such future equipment may be affixed or attached to the Premises, such future equipment will belong to and be removable by Lessee and shall be construed as Lessee’s personal property.

9. Inspection Lessor acknowledges that it has inspected the current Equipment and Premises and has determined them to be suitable for Lessee’s use.

10. Lessor’s Use of the Property Lessor shall have the right to use the Premises to install, use, repair, and maintain Equipment and facilities that presently exist or may in the future be located within the Premises as part of Lessor’s normal business operations. It is agreed that these occurrences will not negatively affect the operations of the Lessee. All reasonable measures must be taken to prevent interference from any source, and in the event of interference, both Parties will work expeditiously to mitigate the issue.

11. Licenses and Permits Lessee agrees to obtain all licenses and permits required for its operations in connection with this Equipment Lease Agreement and its activities on the Premises, and to comply, at its cost and expense with all Federal, state, and local laws and regulations applicable to its operations on the Premises. Lessee shall display such licenses and permits, or copies hereof, if required, in accordance with applicable law. At the request of Lessor, Lessee shall provide to Lessor such evidence of compliance with all Federal, state, and local laws and regulations as Lessor may reasonably request. Lessor agrees, at no expense to Lessee, to cooperate with Lessee, in completing one or more applications for, and obtaining licenses, permits and any other necessary approvals that may be required for Lessee’s intended use of the Equipment and Premises.

12. Repairs Lessee shall not be responsible for ordinary repairs required to the Premises, except for repairs required because of the negligence of Lessee or the agents or employees of Lessee.

Except as provided in paragraph 1 of this Section 12 (Repairs), Lessor shall pay for commercially reasonable maintenance and repairs to the Equipment and Premises, including without limitation, maintenance and repairs to the Equipment and Premises due to damage caused by fire, the elements, acts of God, or Lessor’s negligence. Lessor shall at all times provide Lessee with access to utilities sufficient to enable Lessee to use the Premises and the Equipment for Lessee’s intended purpose. Lessor warrants that it has sufficient rights to the Equipment, Premises, and utility lines to perform normal maintenance and repairs or to affect the same to be performed by a utility provider as they become necessary.

13. Insurance Lessor understands and acknowledges that the Commonwealth of Massachusetts is self-insured. Lessor must provide proof of insurance to Lessee prior to the signature date of this Equipment Lease Agreement. Lessor must maintain comparable insurance coverage at all times during the Term and must notify Lessee in the event of any decrease in such insurance coverage.

14. Continuing Obligation The termination or expiration of this Equipment Lease Agreement shall not alter or terminate the obligations as established by this Equipment Lease Agreement for events which take place on or before the effective date of termination or expiration.

15. Notices All notices permitted or required to be made by either Party will be considered to be received upon delivery of email, personal delivery, or three (3) business days following mailing of a notice by certified mail, postage prepaid, return receipt requested, or delivery by a nationally-recognized overnight mail carrier to:

Lessor: XXXXXXXXX

16. Entire Agreement This Equipment Lease Agreement, together with the documents identified in the first paragraph herein, constitutes the entire Agreement between Lessor and Lessee with respect to the Equipment and Premises. No oral statements, promises, express or implied warranties or other understandings except those expressly set forth in this Equipment Lease Agreement shall be valid unless reduced to writing and signed by both Parties on or after the date of this Equipment Lease Agreement.

17. Authority to Execute

The undersigned hereby represent that they are duly authorized to execute this Equipment Lease Agreement on behalf of their respective organizations. The signer on behalf of Lessor further represents that he/she is listed as an Authorized Signatory under the applicable RFR. This Equipment Lease Agreement may be signed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

[Signature Page Follows]

IN WITNESS WHEREOF, the Parties have executed this Equipment Lease Agreement as of the date last written below.

[EOTSS/LESSEE] [LICENSOR]

Signature: ______________________________ Signature: ______________________________

Name: _________________________________ Name: ________________________________

Title: __________________________________ Title: __________________________________

Date: __________________________________ Date: __________________________________

EXHIBIT A

AERIAL MAP OF PROPERTY, PREMISES, AND PLAN OR LIST OF EXISTING EQUIPMENT