HomeMy WebLinkAbout3769 LEASE AGREEMENT
communications site Lease\Cheryl Street
THIS LEASE AGREEMENT entered into by and between the City of
Bremerton, a municipal corporation duly organized and existing
under the laws of the State of Washington, as Lessor (hereinafter
referred to as "City") and Western Telepage, Inc., d/b/a AT&T
Wireless Services, (hereinafter referred to as "Lessee"). WI TNE S SETH:
1. Premises. The City is the legal owner of the following
described real property:
A parcel of land located in the N.W. 1/4 of the
S.W. 1/4 of the N.E. 1/4 of Section 1 Township 24
N., Range I East of the Willamette Meridian. Known
as CS-1S Coast Guard Site located at Cheryl Street
and Olympus Avenue in East Bremerton;
ALSO:
A 40f x 80~ parcel of land located in the S.W.
1/4 of the N.E. 1/4 of Section 1, T. 24 N., R.
1 E. of the Willamette Meridian. Parcel is
within the boundaries of a ten acre parcel
(660~ x 660~) owned by the City of Bremerton,
bounded by Cheryl Street on the North and
Forest Drive on the East, more particularly
described by City of Bremerton Survey Plat,
Exhibit "A" which is attached hereto and made
a part hereof by this reference.
The city hereby leases to the Lessee and the Lessee hereby leases
facilities for Lessee's communication equipment and frequencies,
which equipment and frequencies are more particularly described in
attached Exhibit "A", included herein by this reference, together
with all the rights, privileges, easements and appurtenances
thereon (hereinafter referred to as "Premises"), for the uses and
purposes described herein.
Lessee shall not use any portion of the leased property in any
way which interferes with the operations of Lessor or its
sublessee. Such interference shall be deemed a material breach by
Lessee, and Lessor shall have the right, in addition to any other
rights that it may have at law or in equity, to elect to enjoin
such interference or to terminate this lease after thirty (30) days
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notice of such interference and Lessee has not taken measures
necessary to prevent its equipment from interfering. Lessor agrees
that Lessee shall suffer no interference from users, or equipment,
or frequencies located at the site subsequent in time to Lessee.
In the event of such interference, Lessor agrees to assist Lessee
in satisfactorily terminating the interference.
Z. Uses and Purposes. Lessee shall have the use and
occupancy of the Premises for the purpose of transmission and
reception of radio communication signals in any and all
frequencies.
Notwithstanding any other provisions herein, the Lessee shall
not enter into any sublease of the premises or any portion thereof
or any assignment of any interest in this Agreement, except
Lessee's affiliates or subsidiaries, whether long or short term in
nature, or engaged in any activity with respect to or on the
premises, other than the express use(s) and purpose(s) stipulated
herein, without obtaining the prior written authorization therefor
from the City, which shall not be unreasonably withheld.
Lessee may erect any buildings and structures or perform any
other necessary construction required to render service consistent
with the purposes stated herein, including installation, operation,
maintenance, repair, replacement and upgrade, upon receiving the
prior written consent of Lessor, which consent shall not be
unreasonably withheld.
It is understood and agreed that the Lessee's ability to use
the property for the "use" as described herein is contingent upon
the Lessee obtaining and maintaining after the execution date of
the Agreement a,ll certificates, permits and any other approval as
may be required by any federal, state, or local authorities.
Lessor shall cooperate with the Lessee in its efforts to obtain
such approvals and shall take no action which would adversely
affect the current use of the property with respect to the proposed
use thereof by the Lessee.
Lessee represents and warrants during the term of this
Agreement that it has full power and authority from the Federal
Communications Commission (or any state or federal agency having
jurisdiction) to install, operate and maintain its equipment in the
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manner contemplated under this Agreement. Lessee agrees to use the
facilities leased hereunder only for the purpose contemplated
herein and to comply with all applicable state, county, or
municipal laws and ordinances.
Lessor shall have the exclusive right to inspect the Lessee's
facilities and equipment at any time during the term(s) of this
Agreement to ensure compliance with the terms and conditions
herein; Provided, however, Lessee has the right to be present at
all inspections of Lessee's facilities and equipment, and Lessor
shall give Lessee at least 24 hours prior notice of such intent.
3. Term. The term of this lease, and any extensions, shall
be as follows: Five (5) years commencing on the day this Agreement
is fully executed. Lessee shall abide by all of the terms and
conditions of this lease and shall pay rent to the City as
hereinafter set forth. In addition, the parties mutually agree to
a five (5) year renewal of this agreement upon original termination
unless either party gives written notice of its intent not to renew
at least 120 days prior to the end of the initial term.
In the event of the inability of the City to deliver
possession of the premises, or any portion thereof, at the time
of the commencement of the term of this lease, neither the City
nor any of the City's officers, employees, or agents shall be
liable for any damage caused thereby, nor shall this lease
thereby become void or voidable, nor shall the term herein
specified be in any way extended, but in such event, the Lessee
shall not be liable for any rent until such time as the City can
deliver possession. If the Lessee shall take possession of the
premises prior.~o the commencement date of this lease, the Lessee
and the City agree to be bound by all of the provisions and
obligations hereunder during such prior period.
4. Compensation. Lessee shall pay Lessor a monthly
rental charge of One Thousand Two Hundred Fifty Dollars ($1,250.00)
per month in addition to applicable leasehold excise tax. At the
beginning of each successive year thereafter, the monthly rent
shall automatically be adjusted by the increase in the Consumer
Price Index for All Urban Consumer Scale (CPI-U) U.S. All City
Average (1982-84=100), as published by the Bureau of Labor
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statistics for the last month for which statistics are posted prior
to effective date of this agreement (the "Index"). However, rent
shall not, in any case, decrease.
In the event an additional frequency is added to either of the
above-described sites, there will be an increase in the amount of
Two Hundred Fifty Dollars ($250.00) per frequency to Lessee's
monthly rental charge as adjusted by the CPI-U above from the
beginning of this lease to date of installation.
Lessor shall pay for power to Lessee's equipment.
5. Repairs and Alterations. The Premises used by Lessee
shall be kept in a clean, safe, and sanitary condition. Lessee
shall not permit waste, damage, or injury to the premises. Lessor
shall also maintain its real estate and personal property in
reasonable, commercial, and tenantable condition.
Lessee shall have the right, at its expense, to erect and
maintain on the premises improvements, personal property and
facilities, including base, radio transmitting and receiving
antennas. The Antenna Facility shall remain the exclusive property
of Lessee.
Lessor shall provide Lessee ingress, egress, and access over
the property to the premises adequate to service the premises and
the Antenna Facilities at all times during this lease at no
additional charge to Lessee.
6. Licenses and Permits. Upon commencement of the lease,
Lessee shall be responsible for real property, excise leasehold,
business and occupation, and/or other taxes or licenses which may
in the future be assessed as a result of the Lessee's operations.
7. Taxes. Lessee shall pay any personal property taxes
assessed on, or any portion of such taxes attributable to, the
Antenna Facilities. Lessor shall pay all real property taxes
attributable to the property. Lessee shall pay applicable
leasehold excise taxes.
8. Liability and Insurance.
a. ~: Lessee, at its own expense, shall provide
and keep in force with companies acceptable to City public
liability insurance for the benefit of City and Lessee jointly
against liability for bodily injury and property damage in the
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amount of not l~ss than One Million Dollars ($1,000,000.00).
Lessee shall furnish City with a certificate of such policy within
thirty (30) days of the commencement date of this Lease and
thereafter shall satisfy City that such policy is in full force and
effect. Such policy shall name City as an additional insured and
shall be primary and noncontributing with any insurance carried by
City. The policy shall further provide that it shall not be
canceled or altered without twenty (20) days prior written notice
to City.
b. ~I~/L~: Lessee shall defend, indemnify, and save
harmless the City, its appointed and elected officers and
employees, from and against any and all liability, loss, costs,
damage and expense, including costs and attorney fees in defense
thereof because of actions, claims or lawsuits for damages
resulting from personal or bodily injury, including death at any
time resulting therefrom, sustained or alleged to have been
sustained by any person or persons and on account of damage to
property, arising or alleged to have arisen directly or indirectly
out of or in consequence of or the performance of this Agreement,
by Lessee, its employees and/or agents whether such injuries to
persons or damage to property is due to the negligence of Lessee,
its subcontractors, agents, successors or assigns. This provision
shall be applicable to the City, its agents, employees,
representatives or other persons who are judicially, or by mutual
agreement between the parties, found to be jointly or solely
negligent for such damage or injury.
c. Liens: Lessee shall not permit any lien to be imposed
upon the property of Lessor as a result of work done by or on
behalf of user and shall indemnify and hold Lessor harmless against
any and all expenses, including reasonable attorney's fees and
court costs in connection with any such lien.
9. Technical Standards. Lessee shall operate its equipment
in complete compliance with rules and regulations of the Federal
Communications Commission and shall furnish Lessor with a copy of
its current license and all subsequent renewals for Lessor's files.
A copy of said license shall be posted at all times on Lessee's
equipment at subject site. Lessee shall operate its equipment in
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compliance with ~he applicable standards ~ for this site as
established by the Western Washington Cooperative Interference
Committee (WWCIC) attached hereto, to wit: Standards l(e), 2, 3,
4, 5, 6, 7, 8, 9 (except vinyl cladding), 10, 11, 13, 14, 15, 16
and 17.
10. Environmental Laws. Lessee represents, warrants and
agrees that it will conduct its activities on the Premises in
compliance with all applicable Environmental Laws (as defined
below). City represents, warrants and agrees that it has in the
past and will in the future conduct its activities on the Property
in compliance with all applicable Environmental Laws and that the
Premises is free of Hazardous Substance (as defined below) as of
the date of this Lease.
Lessee agrees to defend, indemnify and hold City harmless from
and against any and all claims, causes of action, demands and
liability including, but not limited to, damages, costs, expenses,
assessments, penalties, fines, losses, judgments and attorney's
fees that City may suffer due to the existence or discovery of any
Hazardous Substance on the Premises or the migration of any
Hazardous Substance to other properties or released into the
environment, arising solely from Lessee's activities on the
Property.
City agrees to defend, indemnify and hold Lessee harmless from
and against any and all claims, causes of action, demands and
liability including, but not limited to, damages, costs, expenses,
assessments, penalties, fines, losses, judgments and attorney's
fees that Lessee may suffer due to the existence or discovery of
any Hazardous Substance on the property or the migration of any
Hazardous Substance to other properties or released into the
environment, that relate to or arise solely from City's activities
during this Lease and from all activities on the Premises prior to
the commencement of this Lease.
The indemnifications in this section specifically include
costs incurred in connection with any investigation of site
conditions or any cleanup, remedial, removal or restoration work
required by any governmental authority.
As used in this Lease, "Environmental Laws" means all federal,
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state and local environmental laws, rules, regulations, ordinances,
judicial or administrative decrees, orders, decisions,
authorizations or permits pertaining to the protection of human
health and/or the environment, including, but not limited to, the
Resource Conservation and Recovery Act, 42 U.S.C. 6901, et seq.,
the Clean Air Act, 42 U.S.C. 7401, et seq., the Federal Water
Pollution Control Act, 33 U.S.C. 1251, et seq., the Emergency
Planning and Co~nunity Right to Know Act, 42 U.S.C. 1101, et ~_e_~.,
the Comprehensive Environmental Response, Compensation and
Liability Act, 42 U.S.C. 9601, et seq., the Toxic Substances
Control Act, 15 U.S.C. 2601, 9_~. the Oil Pollution Control
Act, 33 U.S.C. 2701, et seq., and Washington State laws, or any
other comparable local, state or federal statue or ordinance
pertaining to the environment or natural resources and all
regulations pertaining thereto.
As used in this Lease, "Hazardous Substance" means any
hazardous or toxic substances as defined by the Comprehensive
Environmental Response, Compensation and Liability Act, as amended
from time to time; any hazardous waste as defined by the Resource
Conservation and Recovery Act of 1976, as amended from time to
time; any and all material waste or substance defined as hazardous
pursuant to any federal, state or local laws or regulations or
order; and any substance which is or becomes regulated by any
federal, state or local governmental authority; any oil, petroleum
products and their by-products.
This definition includes all federal, state or local land use
laws dealing with environmental sensitivity including, but not
limited to, l~ws regarding wetlands, steep slopes, aquifers,
critical or sensitive areas, shorelines, fish and wildlife habitat,
or of historical or archeological significance.
11. Termination of Lease.
a. Either party may terminate this lease upon default of
any covenant or term hereof by the other, which shall be effective
thirty (30) days following receipt of such notice unless Lessee
cures defaults within said period.
b. Either party may terminate for convenience upon one
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hundred twenty (120) days notice.
c. Notice of the intent to terminate shall be given in
writing by certified mail, return receipt requested.
12. Surrender. Upon termination or expiration of this
Agreement, Lessee shall surrender such facilities to the Lessor in
as good as condition as when initially leased, normal wear
excepted.
Upon expiration of this lease, Lessee shall, within a
reasonable period of time agreed to by both parties, remove its
personal property and improvements, except for the concrete
foundation for any improvements and the communications tower,
unless rejected by Lessor, and restore the property to its original
condition, reasonable wear and tear excepted.
13. Notices. Ail notices to be given by either of the parties
hereto to the other party shall be in writing and may either be
delivered personally or may be deposited in the United States Mail,
postage prepaid, as either certified or regular mail, addressed as
specified below, or to such other address as either party may later
designate in writing. Notices sent by mail shall be deemed to have
been given 48 hours after properly mailed; the postmark affixed by
the United States Post Office shall be conclusive evidence of the
date of mailing.
Lessor: City of Bremerton
Department of Public Work & Utilities
3027 Olympus Drive
Bremerton, WA. 98337
Lessee: AT&T Wireless Services
3015 ll2th Avenue N.E., #100
Bellevue, Washington 98004
~%tn: Tech Ops Manager
Phone: (206) 803-1599
Copies to: AT&T Wireless Services
110 - ll0th Avenue N.E., #200
Bellevue, Washington 98004
ATTN: One-Way Messaging Dept.
Phone: (206) 990-4400
14. Relationship. In no event shall the City be construed, or
held to have become in any way or for any purpose a partner,
associate, or joint venturer, of the Lessee or any party associated
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with the Lessee --in the conduct of the L~ssee's business or
otherwise. This lease does not constitute the Lessee as the agent
or legal representative of the City for any purposes whatsoever.
15, Amendments: The parties hereto expressly reserve the
right to renegotiate the provisions hereof, including the term of
this lease, from time to time as may be necessary and to amend this
lease accordingly; Provided, however, That no alteration or
modification of the terms or conditions hereof shall be valid and
binding, unless made in writing and signed by the authorized
representatives of the parties hereto.
16. Assignment: Lessee may assign this lease upon notice to
Lessor to any person or entity with an ownership interest in
Lessee, any affiliate of such person or entity, or any person or
entity that acquires Lessee's business. Additionally, Lessee may,
upon notice to Lessor, mortgage or grant a security interest in
this lease and the antenna facilities, and may assign this lease
and the antenna facilities to any such mortgagees or holders of
security interests, including their successors or assigns
(hereinafter collectively referred to as "Mortgagees"). Lessor
agrees to notify Lessee and Lessee's mortgagees simultaneously of
any default by Lessee and to give mortgagees the same right to cure
any default as Lessee, except that the cure period for any
mortgagee shall not be less than ten (10) days after receipt of the
default notice.
17. waiver of Default. No waiver of default by either party
of any of the terms, covenants, and conditions hereof to be
performed, kept and observed by the other party shall be construed
as, or operate as, a waiver of any subsequent default of any of the
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terms, covenants, and conditions herein contained, to be performed,
kept and observed by the other party.
· 8. Miscellaneous.
a. The substantially prevailing party in any litigation
arising hereunder shall be entitled to its reasonable attorney's
fees and court costs, including appeals, if any.
b. Each party agrees to furnish the other, within ten
(10) days after request, such truthful estoppel information as the
other may reasonably request.
c. This lease constitutes the entire agreement and
understanding of the parties, and supersedes all offers,
negotiations and other agreements. There are no representations or
understandings of any kind not set forth herein. Any amendments to
said lease must be in writing and executed by both parties.
d. If either party is represented by a real estate broker
in this transaction, that party shall be fully responsible for any
fee due such broker.
e. Lessor agrees to cooperate with Lessee in executing
any documents (including a Memorandum of Lease) necessary to
protect Lessee's rights hereunder or Lessee's use of the premises.
xg. Nondiscrimination. Lessee shall not discriminate in
employment or services to the public on the basis of race, color,
national origin, sex, religion, age, marital status or disability,
except employment actions based on a bona fide occupational
qualification.
Z0. Effectuation of Agreement. In order to be effective,
this lease must be (1) signed by an authorized representative of
the Lessee and returned to the city at the address set forth
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below accompanied by any required policy of insurance, and (2)
signed by the Mayor of the City of Bremerton, and attested to by
the City Clerk.
LESSEE:
WESTERN TELEPAGE, INC.
d/b/a AT&T WIRELESS SERVICES
SECRETARY
LESSOR:
CITY OF BREMERTON
L~NN HORTON, Mayor
DEiA~ROVAL:
w. EUCENE
Director of Pub--l-i-~Works & Utilities
City Attorney
STATE OF WASHINGTON)
: ss.
COUNTY OF )
On this /~ day of ~7~.A~ , 1996, before me the
undersigned, a Notary Public in and for the Sta%~A_of Washington,
duly commissioned and sworn personally appeared ~ ~/A.~-'~ ~
~~ known to be the ~ ~63/~
~4~ ...-~~-~, of Western Telepage, Inc.,
d/b/a AT&T Wireless Services, the corporation that executed the
foregoing instrument, and acknowledged the said instrument to be
the free and voluntary act and deed of said corporation, for the
uses and purposes therein mentioned, and on oath stated that _he
was/were authorized to execute said instrument.
~ G~IV.,EN~,u~nder my hand and official seal this /~7~ day of
, 1996.
/Notary Public in and for the Sta~e of
Washington, residing at
My appointment expires:
STATE OF WASHINGTON )
: ss.
COUNTY OF KITSAP )
On this day personally appeared before me Mayor Lynn Horton,
Mayor of the City of Bremerton, the City that executed the
foregoing instrument, and acknowledged the said instrument to be
the free and voluntary act and deed of said City, for the uses and
purposes therein mentioned, and on oath stated that she was
authorized to execute said instrument.
GIVEN under my and official seal this c~w~_~ day of
~/~'~'~-~and , 1996.
Notary Public ih an~ ~or theJState of
Washington, residing at Bremerton.
My appointment expires:
RECEIVED FOR FILING:
KATHL~EN L. McCLUSKEY, CITY CL£RK
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