HomeMy WebLinkAbout2.69 Original Contract
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CITY OF PORT ANGELES
COMMUNICATIONS SITE FACILITY USE LEASE
The City of Port Angeles hereby leases the below described space to:
KIRO~TV, INC.
To install maintain and use communications equipment described herein at the City of Port
Angeles Radio Building located at:
1022 South "E" Street, Port Angeles, Washington, (the "Premises")
It is recognized and agreed to by all parties hereto that tIns Radio Site Facility's
main pw:pose is to provide radio and other cOlmnU1ncation services for public
safety activities and/or operations, and that these functions have priority over tile
commercial equipment and/or activities at tIns site. "Public safety" refers to
services protecting the health and welfare of the general public, including but not
limited to cOlnmU11ications with or by police, fire, medic, hospital, utility repair,
aviation, Coast Guard, PENCOM dispatch services or search and rescue
operations.
KIRO- TV, Inc. Olereinafter refel1"ed to as "Lessee") covenants and promises, and the CITY OF
PORT ANGELES (hereinafter refelTed to as "City" or "P APD") agrees as follows:
1. The Lessee shall have the right to install, maintain and use one (1) single-service radio
equipment installation (the "Installation") in the above designated building, and antennae
on the associated tower as specified below. A single-service radio equipment installation
is defined as a transmitter or transceiver with antennae, including linldng equipment
duplexers or other antelUlae interface equipment, all in accordance with and confomling
to the specifications listed in Paragraph 2. The radio equipment and antemlae allowed
and the fi'equencies authorized are as follows:
Television VHF ChaImel 7 to television UHF Channel 30 traIlslator. Antennas include an
alTaY of 8 UHF transmitting pods alld a dual stacked yagi receiving antelmae, radio
equipment cabinets, associated antennas, momtoring equipment, a pole or tower, as
applicable, telephone, electric and radio cables and other transmission lines; aIld other
related equipment.
2. A single-service communications equipment installation and antennae, shall be
constructed, installed and operated in accordance 'With the following specifications:
(A) Each single-service installation shall not exceed 20 cubic feet of space within the
building. No equipment shall be installed within the building and the Lessee shall
not alter, modify or improve the building in any way without the express written
approval of the POli Angeles Police Department.
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(B) (i) Lessee agrees not to cause interference to the radio frequency communications
operations ofthe City, the City's tenants, or anyone holding an agreement with the
City to operate on the Premises if such equipment is installed prior to the
execution of this Lease Agreement; (ii) Lessee's conIDmnicatiol1s equipment shall
not interfere willl or cause the degradation of the operation of any public safety
communications equipment currently installed on the Premises or installed
thereon in the future; and (iii) After the execution of this Lease Agreement, the
City shall not install or permit the installation of any s1m.cture or broadcasting or
other communications equipment (except for any additional public safety
communications equipment or modifications to existing public safety
communications equipment) which interferes with, alters or restricts tile
operations of Lessee. Should such interference occur, the City shall promptly take
all necessary action, at no cost to Lessee, to eliminate the cause of said
interference, including, if necessary removing or causing to be removed the
equipment causing said interference.
(C) No equipment shall exceed 250 watts output from the transmitter, measured
between the transmitter and antemlae interface equipment.
(D) No single-service installation shall exceed 500 watts average power consumption
or 1500 watts peale consumption. Peale consunlptioll shall not be greater than
50% oftotal consumption time.
(E) No equipment other than the antemlae and its associated equipment shall be
allowed outside of the building.
(F) No venting-type batteries are pennitted in the building, and no tools or other loose
equipment may be stored in the building.
3. (A) All costs of installation and maintenance of equipment allowed pursuant to this
Lease shall be borne by Lessee. If said equipment interferes with or causes the
degradation of the operation of allY other commullicatiQus facility equipment
installed prior or to any public safety equipment currently installed or installed in
the future, Lessee shall bear all costs of installing corrective equipment or
otherwise eliminating said interference or degradation.
(B) Lessee's Installation, whether attached to or otherwise brought onto the Premises,
shall at all times remain personal property and shall110t be considered fixtures,
and at Lessee's option may be removed by Lessee at any time during the term
hereof or any renewal tenus. Upon expiration or termination of this Lease
Agreement, Lessee agrees to repair any damage to the Premises caused by Lessee
and restore the Premises to its condition on the Commencement Date (as defined
below), ordinary wear and tear, damage from the elements, and casualty beyond
Lessee's control excepted.
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(C) In connection with the Installation, Lessee shall have the right, at its sole cost and
expense, to obtain electrical and telephone service directly from the servicing
utility company, including the right to install a separate meter and main breaker,
where required. Lessee shall be responsible for the electricity it consumes for its
operations at the 110nllal rate charged by the servicing utility company. Lessee
and the City agree that if an easement is requil'ed to obtain and maintain utility
services; an acceptable location will be agreed to by the City and the servicing
utility company.
(D) The City agrees to cooperate with Lessee in making application for and obtaining, at
Lessee's expense, any local, state, federal licenses, pennits and any other approvals
(the "Approvals") which may be required to allow Lessee use oftlle Premises. If,
however, Lessee is denied or is unable to obtain a required Approval, Lessee shall
have the exclusive right to terminate tins Lease within its sole discretion, and no
further liabilities under tIlis Lease shall remain in force and effect, including but not
limited to the payment of Rent (as defIned below).
(E) Lessee shall have the right, at Lessee's sole cost and expense, to rWl transmission
lines from the equipment area to tile antenna locations and to run power and
telephone service fl.'Om tile main feed to tile PCS equipment. Further, Lessee agrees
to perform all improvements in a good and workmanlike mlllmer.
(F) The City agrees to provided twenty~foW' (24) hours, seven (7) days a week access to
the Premises without charge to Lessee, Lessee's employees or any subcontractors or
agents, which access shall remain unimpeded tIu:oughout tile term and any Renewal
Term of this Lease.
4. A key to tile radio building and tile associated security alarm key shall be supplied only to
the authorized communications equipment maintenance and repair personnel, as
detennined by the Clnef of Police.
5. The P APD, or its designee, shall have the right to inspect any cOlmnunications equipment
at tile site at any time. Lessee shall not install or use any equipment until approved and
inspected by the P APD, or its designee. The P APD, or its designee, shall inspect radio
equipment during installation and prior to COlmnencement of use.
6. The term of tins Lease Agreement shall commence on July 1,2008 (the "Commencement
Date") and shall terminate on tile last day of June 2009. The Lease shall be subject to
annual renewal for a period not to exceed ten (10) years in lengt1l oftime upon tile same
terms and conditions in effect during the term, provided tIlat Lessee gives notice to City
of its intent to renew Innety (90) days prior to expiration of said Lease and complies with
all otIler requirements. Either party may terminate this Lease WitIlout cause by giving one
hundred eighty (180) days written notice to the other party.
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_. _. _ __________ _~.____~_______ __ ____ ___ _ ___ _"._Od ._ ___ ..___ ._____ __'_ .~ ~- -- ~ ...- .-- --- ---- ---------.--~ -~-------..-
Lessee may terminate tIus Lease Agreement, with cause, for the following reasons,
without further liability, on prior written notice to the City which shall become effective
thirty (30) days after the date notice is mailed: (i) changes in local or state laws or
regulations which adversely affect Lessee's ability to operate; (ii) an FCC ruling or
regulation which is beyond tile control of Lessee and which renders the Premises
unsuitable; (iii) Lessee's detennination that the Premises are not appropriate for its
operations for economic reasons or for teclllucal reasons, including but not limited to
signal interference; (iv) subsequent changes in system design which prohibit Lessee's
operations; and (v) Lessee's inability to obtain or maintain any required Approval for the
constlUction and operation of its Installation, including where the inability is caused by
engineering swveys or structural reports.
7. The annual rental fee ("Rent") for tile above described single~selvice installation shall be
$1,622.40 plus the leasehold excise tax (12.84%) including electrical service payable July
1 st of each year. On each annual anniversary date, a new alIDual rent will be established.
The rent schedule will be adjusted almually on the amuversary date based on all annual
4% increase or the preceding calendar year's "consumer price index, all urban consumers,
u.s. average" (CPI), whichever is higher. In the event that the CPI ceases to be
published, the City may substitute such other comparable cost of living index as then may
be in publication by a compal"able govemment agency.
In the event tIlat the Wasllington State Depaliment of Revenue establishes that the said
rental amount is inadequate according to the provisions ofRCW 82.29A.20(2)(b), then
the parties agree that the rental amount shall be renegotiated to bring the rental amount
into compliance with the provisions of said statute.
8. No event of default shall be deemed to have occurred hereunder unless either party, after
written notice from the other palty fails to pay allY monetary obligations when dlE and
does not cure such failure within ten (10) business days after such notice or (ii) commits a
material breach of its non-monetalY obligations under this Lease Agreement and fails
within thirty (30) days after such notice thereof to cure or commence curing the breach
and continuously and diligently pursue such cure to its completion in not more tllID1 sixty
(60) days after such notice. Upon tile OCCUlTence of a Default as set f011h in the preceding
sentence, tile non-defaulting party shall have tile right to terminate tins Lease Agreement
after thirty (30) days writlenl10tice to the other party, provided tile Default is 110t cured
within said thirty (30) day period. In the event of a Default oftlus Lease Agreement by
Lessee, pal1iculal"ly, but not limited to, Pal"agraph 2(b) above, tile Chief of Police may
hmnediately stop or prevent the operation and use of the Lessee's equipment to prevent
interference with or tile degradation of public safety activities. The notice shall specify
what terms of tile Lease have been violated.
9. The Lessee agrees to inde1Ulufy, save, and hold ha11n1ess the City, its employees and
representatives, fi.-om any alld all liability or claims of liability, for injuries or dalnages
sustained by the indemnifying party, by allY of its employees, contractors, or third
persons, or by any third person inspecting, servicing, or working on Lessee's equipment
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arising out of, in cOlmection with, or incident to the exercise of any rights or perfonnance
of any duties under this Lease, except where such injuries or damages result from the sole
negligence ofthe City, its employees or agents. Lessee specifically waives its immunity
under the Worker's Compensation Act, Title 51 RCW, solely for the purposes of this
indemnification. This waiver has been mutually negotiated by the parties. The
provisions of this section shall survive the terminatioll of this Agreement relating to all
incidents taldng place while said Agreement was in effect.
10. (A) Lessee shall procure and maintain for the duration of the term of this Lease
Agreement and any renewal tenns insurance against claims for injuries to persons
or damage to property which may arise from or in connection with the placement,
maintenance, operation and use of communications equipment as contemplated by
this Lease. Said insurance shall consist of a general commercial liability policy,
written with a company licensed to do business in the State of Washington,
written on an occurrence basis with limits of no less than $1,000,000 combined
single limit per OCCUll"ence and $2,000,000 aggregate for personal injury, bodily
injury and property damage naming the City of Port Angeles as an additional
Insured. In addition, Lessee shall maintain worker's compensation insurance as
required by applicable state law.
(B) Lessee agrees to assume responsibility to ensure that any employed contractor, or
third~party who inspects, services, or works on Lessee's equipment shall be
covered by or carry liability insurance in the minimum amounts of $1,000,000
combined single limit per occunence, and $2,000,000 aggregate for personal
injury, bodily injury, and property damage. It is agreed that in requiring and
setting such limits, the parties are not purporting to assess any risks involved, but
only wish to ensure the availability of adequate insurance for any claims.
11. If the Premises are damaged or destroyed by casualty or condemned such that Lessee is
unable to operate its Installation, then at any time after such OCCUl1'el1ce, but prior to
restoration of the Premises, Lessee may elect to terminate this Lease Agreemellt as of the
date ofthe damage, destructiol1 01' c01J.denmatiQll! If Lessee chooses not to tenninate this
Lease Agreement, the Rent shall be reduced or abated in propOliion to the actual
reduction or abatement or use of the Premises.
12. The City represents and Wml"m1ts that: (i) the City has the sufficient right, title and interest
in the Premises to enter into tins Lease Agreement and to grm1t Lessee its rights
hereunder; (ii) the City has not entered into auy agreement with any third pm'ty which
would require such pm"ty's consent hereto or preclude or limit the City's performance of
its obligations under this Lease Agreement; (iii) the City owns the Premises in fee simple
m1d has the right to grant access to and use of the Premises; and (iv) the City shall provide
to Lessee quiet and peaceful enjoyment of the Premises.
13. No amendment or modification to any provision of tins Lease Agreement shall be valid
unless made in writing m1d agreed to and signed by the City mId Lessee. Lessee shall
have the right to assign or transfer its rights under this Lease Agreement, to any person or
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business entity which is licensed by the FCC to operate a wireless communications
business) and which is (i) either a parent) subsidiary or affiliate of Lessee) (ii) controls or
is controlled by or under common control with Lessee) or (Hi) is merged or consolidated
with Lessee or purchased more than fifty percent (50%) ownership interest in or assets of
Lessee to which the applicable agreement relates. In all other instances) Lessee shall
obtain the City's prior written consent for assignment. Such consent shall not be
unreasonably withheld, conditioned or delayed. Upon any such assigmnent) so long as
Lessee's assignee has assumed all of Lessee's obligations under this Lease Agreement,
Lessee shall be relieved of all future obligations under this Lease Agreement.
14. (A) This Agreement shall be governed by the laws of Washington.
(B) This Lease Agreement) consisting of the entire agreement and understanding
between the parties) shall be binding on and inure to the benefit of the successors,
transferees in titled, and permitted assignees of the respective parties.
(C) Consent or approval of the City) where required, shall not be umeasonably
withheld, delayed, or denied.
CD) If any provision of this Lease Agreement is deemed invalid or unenforceable, the
remainder of this Lease Agreement shall remain in force and to the fullest extent
as permitted by law.
(E) The "Effective Date" of this Lease Agreement shall be the date on which tlus
Agreement has been fully executed by and becomes binding on all of the parties
hereto.
15. Unless otherwise provided herein, any notice or demand required to be given herein shall
be given by certified or registered mail) retum receipt requested or reliable ovemight
courier to the address of Lessee and the City as set forth below) and if to Lessee, with a
copy to Dow Lolmes PLLC) Attn: David 1. Lester) Esq.) Six Concourse Parkway, Suite
1800, Atlanta, GA 30328. Lessee and the City may designate a change of notice address
by giving written notice to the other party.
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1111
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16. Capacity of Signatories. Each individual executing this lease on behalf of the City and
Lessee represents and warrants that he or she is duly authorized to execute and deliver this
Lease on behalf of said party.
DATED thi~ day o~*- \_.--;-2tl08.
IN WITNESS WHEREOF ~ the parties hereto have set their hands and seals.
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Jerald Osterman, Interim City Manager
LESSEE:
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LESSOR:
THE CITY OF PORT ANGELES
Attest:
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Becky Upt Ci Clerk
STATE OF WASHINGTON )
) ss.
COUNTY OF KING )
On tillS day personally appeared before me _~ L ~ ofKffi.O-TV~ INC.
and executed the within and forgoing illstrument~ and aclmowledged said instrument to be the free
and voluntary act and deed of said agency for the uses and purposes therein mentioned and on oath
stated that he is authorized to execute the said instrument.
GIVEN unto my hand and official seal th~\+'day o~
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STATE OF WASIDNGTON
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) ss.
COUNTY OF CLALLAM
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On this day personally appeared before me Jerald Osterman, to me Imowl1 to be the Interim City
Manager of the City of Port Angeles that executed the within and foregoing instrument, and
acknowledged said instrument to be the free and voluntary act and deed of said municipal
corporation, for the uses and purposes therein mentioned and on oath stated that he is authorized to
execute the said instrument.
GIVEN unto my hand and official seal this 4 -M
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