HomeMy WebLinkAbout09-02-2014 City Council Agenda Mod (PDF ONLY)C I TY OF *—
WASHINGTON
TO: Members of the City Council
Mayor Backus
Department Directors
FROM: Danielle Daskam, City Clerk
SUBJECT: September 2, 2014 Agenda Modification
DATE: September 2 2, 2014
The September 2, 2014, City Council agenda is modified as follows:
VIII. RESOLUTION
The following resolution is added to the agenda.
C. Resolution No. 5098* (Wales /Tiedeman)
A Resolution of the City Council of the City of Auburn, Washington,
authorizing the Mayor to execute a lease agreement between the
City of Auburn and, Seattle SMSA Limited Partnership, d /b /a
Verizon Communications, for use of City facilities
D. Resolution No. 5099* (Wales /Hursh)
A Resolution of the City Council of the City of Auburn, Washington,
opposing closure of the King County Public Health Clinic in Auburn
CITY OF.
WASHINGTON
AGENDA BILL APPROVAL FORM
Agenda Subject:
Resolution No. 5098
Date:
08/28/2014
Department:
Innovation & Technology
Attachments:
Resolution; Lease Agreement
Budget Impact:
Administrative Recommendation:
Authorize execution of lease agreement.
Background Summary:
Auburn IT, staff, and residents have identified wireless phone and data service issues within Auburn and
in major facilities around Auburn. In discussing these issues, Verizon has engineered a solution to assist
public safety and Auburn residents with cellular service by expanding their coverage footprint and service
offerings in Auburn.
The proposed lease will allow Verizon to upgrade an existing light pole in Fulmer Park to accommodate
cellular equipment. The proposed upgrade has been processed and reviewed by CDPW staff, and the
Auburn Hearing Examiner has approved with stipulations of code and lease agreement.
The proposed lease is based on a lump sum payment for the first 5 years, to include an annual 3% CPI
multiplier. After the initial 5 year term, the lease can be renewed in 5 year terms up to 5 times. All
equipment, renovations, upgraded light pole and fixtures will belong to the city upon lease acceptance
and construction, permitting acceptance. The lease was written in a form to assist in capital Parks
projects by accommodating an "upfront lump -sum" payment. However, the lease allows the city to
terminate for cause if needed, and accounts for state and federal fees to be paid by Verizon.
Reviewed by Council & Committees:
Reviewed by Departments & Divisions:
• Arts Commission COUNCIL COMMITTEES.
• Building • M &O
• Airport • Finance
• Cemetery • Mayor
• Hearing Examiner • Municipal Sery
• Finance • Parks
• Human Services • Planning & CD
• Fire • Planning
• Park Board • Public Works
• Legal • Police
• Planning Comm. • Other
• Public Works • Human Resources
• Information Services
Action:
Committee Approval: •
Yes • No
Council Approval: ■Yes
• No Call for Public Hearing _ /_ /_
Referred to Until /_
/_
Tabled Until
/
/
Councilmember: Wales
Staff: Tiedeman
Meeting Date: 09/02/2014
Item Number:
AUBURN * MORE THAN YOU IMAGINED
RESOLUTION NO. 5 0 9 8
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
AUBURN, WASHINGTON, AUTHORIZING THE MAYOR
TO EXECUTE A LEASE AGREEMENT BETWEEN THE
CITY OF AUBURN AND, SEATTLE SMSA LIMITED
PARTNERSHIP, D /B /A VERIZON COMMUNICATIONS,
FOR USE OF CITY FACILITIES.
WHEREAS, the City of Auburn has at its Fulmer Park facilities that Verizon
Communications is interested in using to position telecommunication equipment upon;
and
WHEREAS, Verizon Communications has sought use of such facilities and has
negotiated an agreement for the use thereof that contains terms acceptable to the City;
and
WHEREAS, executing an agreement to lease use of the City's facilities at Fulmer
Park to Verizon Communications under the terms of the attached agreement is in the
public interest.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN,
WASHINGTON, HEREBY RESOLVES as follows:
Section 1. That the Mayor is hereby authorized to execute an Agreement
between the City and Seattle SMSA Limited Partnership, d /b /a Verizon
Communications, for the purpose of leasing the City's facilities, as long as such
agreement shall be in substantial conformity with the agreement attached hereto as
Exhibit A, which is and incorporated herein by this reference.
Section 2. That the Mayor is authorized to implement such administrative
procedures as may be necessary to carry out the directives of this legislation.
Resolution No. 5098
8/28/2014
Page 1 of 2
Section 3. That this Resolution shall take effect and be in full force upon
passage and signatures hereon.
Dated and Signed this day of September, 2014.
ATTEST:
Danielle E. Daskam, City Clerk
APPROVED ' - • FORM:
A.V
Daniel B. Heid, -City A
Resolution No. 5098
8/28/2014
Page 2 of 2
rney
CITY OF AUBURN
NANCY BACKUS, MAYOR
FULMER PARK SITE LEASE AGREEMENT
THIS SITE LEASE AGREEMENT ( "Lease ") is by and between the City of Auburn, a
municipal corporation under the existing laws of the State of Washington, having a mailing
address of 25 West Main, Auburn, WA 98001 ( "Landlord ") and Seattle SMSA Limited Partnership
d /b /a Verizon Wireless, ( "Tenant ").
1. Lease Agreement. Landlord hereby leases to Tenant the property (the "Property ")
generally described and depicted in Exhibit A, attached hereto and incorporated by reference
( "Lease Area "), including space on Landlord's facilities located on the Property said Lease Area,
Antenna Facility (as hereinafter defined), and Tower Space (as hereinafter defined), and all
rights -of -way for access and utilities shall collectively be referred herein as the "Premises ". The
Lease shall not preclude Landlord from granting a similar lease, right, license, franchise, etc., to
other carriers or other persons for telecommunications or any other purpose at the Premises, so
long as the subsequent agreement protects Tenant's rights granted by this Lease.
2. Term. This Lease shall commence on the first day of the month following the full
execution hereof ( "Commencement Date "), and run for a period of five (5) years, terminating at
midnight on the fifth anniversary of Commencement Date ( "Initial Term ").
3. Tenant's Use of the Premises - Antenna Facilities.
(a) Tenant's use of the Premises shall be strictly limited to those uses set forth in this Section
3. Tenant may use the Premises for the transmission and reception of radio communication
signals and for the construction, installation, operation, maintenance, repair, removal or
replacement of related facilities necessary for the operation of a telecommunications facility as
well as for access and utilities. Tenant may place its ground based telecommunications
equipment only within the portion of the Premises identified as "Fenced Lease Area" shown in
Exhibit A.
(b) Tenant shall have the right, at its expense, to erect and maintain on the Premises,
improvements, personal property and facilities necessary to operate its communications system,
including, radio transmitting and receiving antennas, and related cables and conduits, equipment
shelters and /or cabinets and related cables and utility lines and a location based system,
including coaxial cable, base units and other associated equipment as such location based
system may be permitted by any county, state or federal agency /department (collectively, the
"Antenna Facility "). Tenant shall have the right to alter, replace, and expand within the confines
of the Premises as defined in Section 1 and without interference to other providers / tenants,
enhance and upgrade the Antenna Facilities at any time during the term of this Lease, provided
that Tenant obtains a city building permit and notices the city prior to installing upon the Premises
additional communication equipment not referenced in the original permit. Tenant shall cause all
construction to occur lien -free and in compliance with all applicable laws and ordinances.
Landlord acknowledges that it shall not interfere with any aspects of construction, including,
attempting to direct construction personnel as to the location of or method of installation of the
Antenna Facilities. The Antenna Facilities shall remain the exclusive property of Tenant. Tenant
shall have the right to remove the Antenna Facilities at any time during and upon the expiration or
termination of this Lease.
(c) Tenant shall, at Tenant's expense, keep and maintain the Lease Area and Antenna
Facilities now or hereafter located on the Premises in commercially reasonable condition and
repair during the term of this Lease. Tenant may install and maintain landscape plantings within
the Lease Area. Tenant shall .replace any existing landscape plantings damaged during the
installation or operation of Tenant's Antenna Facilities. Upon termination or expiration of this
Lease, the Lease Area shall be returned to Landlord in good, usable condition, normal wear and
tear and loss due to casualty or other causes beyond Tenant's control excepted, within ninety
(90) days.
Page 1 of 11
(d) In addition to using the Lease Area, Tenant may utilize the Property to install and use
underground conduits running from the nearest utility service connection to the facilities.
(e) Tenant shall have the right to install utilities, power and telephone, at Tenant's expense,
and to improve the present utilities on the Premises (including, but not limited to, the installation
of emergency power generators). Landlord agrees to cooperate with Tenant in its reasonable
efforts to acquire necessary utility service. Tenant shall, wherever necessary, install separate
meters for utilities used on the Premises by Tenant. Landlord shall diligently correct any
variation, interruption or failure of utility service within Landlord's control.
4. Rent.
(a) Tenant shall pay Landlord, as rent, $ 68,423.00 for the Initial Term. Rent for the Initial Term
shall be paid to City of Auburn Parks Capital Fund, Account Number 321, at Landlord's address
specified in Section 13 below within 45 days of the Commencement Date. The annual rent for the
sixth (6th) year of the Lease term shall be $ 14,856.72. Rent for each year thereafter shall be equal
to 103% of the annual rental payable with respect to the immediately preceding year. If this Lease
is terminated by Landlord for any reason (other than default by Tenant), rent shall be prorated as of
the date of termination and all pre -paid or excess rent shall be refunded to Tenant within 60 days.
(b) In addition to the monetary amount described in section 4 (a), if applicable, Tenant shall
directly pay the state Department of Revenue Tenant's Leasehold Excise Tax obligation,
calculated at the statutory rate. Within ninety (90) days of the Due Date, Tenant shall confirm by
letter, a copy of which Tenant shall send to the Department of Revenue, that Tenant will directly
pay the Leasehold Excise Tax to the state. If at any time the Department of Revenue no longer
accepts direct payment, Tenant shall pay the tax to Auburn with its Rent payment.
(c) Any payments received after the date they are due shall include a late payment penalty of
two percent of the amount due for each day or part thereof past the due date.
5. Renewal. This Lease shall automatically be extended for five (5) additional five (5) year
terms (each a "Renewal Term ") unless Tenant terminates it at the end of the then - current term by
giving Landlord written notice of the intent to terminate at least six (6) months prior to the end of the
then - current term. Following the expiration of the first Renewal Term, Landlord may during any
subsequent Renewal Term, notify Tenant in writing of Landlord's intention not to renew this Lease
for the next Renewal Term at least 18 months prior to the expiration of the then - current Renewal
Term.
6. Interference. Tenant and Landlord shall not operate in a manner which interferes with the
other party's operations on the Premises. Tenant's Antenna Facilities, as well as additional and
upgraded equipment, and the use thereof shall not interfere with the use of any other
communication or similar equipment of any kind and nature owned or operated by Landlord. If an
interference analysis (intermodulation study) conducted by Tenant establishes that the Landlord's
equipment is causing interference with the operation of Tenant's facilities, the City shall take
measures to eliminate the interference within a reasonable amount of time Landlord agrees to
exercise reasonable care to assure equipment of subsequent providers leasing space on the
Property does not interfere with Tenant's Antenna Facilities operations. The Landlord, however,
is not in any way responsible or liable for any interference with Tenant's use of the Property,
which may be caused by the use and operation of any other tenant's equipment, even if caused
by new technology, so long as such equipment continues to operate within its existing
frequencies and in compliance with all applicable laws and FCC rules and regulations. In the
event there is interference between Tenant and any third party, such interference will be resolved
by and between the parties affected; however, if such interference cannot be resolved to Tenant's
satisfaction within forty -eight (48) hours from commencement of such interference, then the
parties acknowledge that Tenant will suffer irreparable injury, and therefore, Tenant will have the
Page 2 of 11
right, in addition to any other rights that it may have at law or in equity, to terminate this Lease
upon 30 days' notice to Landlord and restore the Property to its original condition..
7. Access.
(a) Tenant shall have 24- hours -a -day, 7- days -a -week access to the Lease Area ( "Access ") at
all times during the Initial Term of this Lease and any Renewal Term, except during times access
would interfere with Landlords scheduled events occurring on the athletic field that the Antenna
Facilities are located. In the event Landlord, its employees or agents unreasonably deny Access
to Tenant, its employees or agents, Tenant shall, without waiving any other rights that it may have
at law or in equity, deduct from Rent amounts due under this Lease an amount equal to fifty and
no /100 dollars per day for each day that Access is impeded or denied. Access to Landlord
facilities beyond the Lease Area, require 48 hours' notice to the Auburn Parks department.
(b) Tenant shall provide Landlord 24- hours -a -day, 7 days -a -week access to the Lease Area
( "Access ") at all times during the Initial Term of this Lease and any Renewal Term. Granted
access shall include a means to enter the security fence at all times. In the event Tenant, its
employees or agents unreasonably denies access to Landlord, its employees or agents, Landlord
shall, without waiving any other rights that it may have at law or in equity, add to Rent an amount
equal to fifty and no /100 dollars per day for each day that access is denied.
8. Termination. Except as otherwise provided herein, this Lease may be terminated, without
any penalty or further liability as follows:
(a) upon thirty (30) days' written notice by Landlord if Tenant fails to cure a default for
payment of amounts due under this Lease.
(b) immediately if Tenant is unable to obtain, maintain, or otherwise forfeits or cancels any
license (including, without limitation, an FCC license), permit or any Governmental Approval
necessary to the installation and /or operation of the Antenna Facilities or Tenants business;
(c) upon one - hundred and twenty (120) days' written notice by Tenant if the Premises are, or
become unacceptable under Tenants design or engineering specifications for its Antenna
Facilities or the communications system to which the Antenna Facilities belong;
(d) immediately upon written notice by Tenant if the Lease Area or the Antenna Facilities are
destroyed or damaged so as in Tenant's reasonable judgment to substantially and adversely
affect the effective use of the Antenna Facilities. In such event, the Tenant shall be entitled to
terminate and remove their equipment and rent shall cease upon full removal and repair of
premises or
(e) at the time title to the Property transfers to a condemning authority, pursuant to a taking of
all or a portion of the Property sufficient in Tenant's determination to render the Premises
unsuitable for Tenant's use. Landlord and Tenant shall each be entitled to pursue their own
separate awards with respect to such taking.
(f) Landlord may terminate this Lease if Landlord needs the Lease Area for expansion of
Landlord's responsibility to provide its services._provided Landlord provides Tenant written notice
eighteen (18) months in advance of Landlord's need. Upon Tenant's receipt of written notice,
Tenant and Landlord may review alternate sites locations for its Antenna Facilities. Such
alternative locations may be on the Property or other properties owned or managed by Landlord.
Landlord shall evaluate such alternatives and advise Tenant in writing if one or more of the
alternatives is suitable to accommodate Tenant's Antenna Facilities. To be a suitable alternative
location, such location will not unreasonably result in any interruption of the communications service
of Tenant on Landlord's Property; nor will it impair, or in any manner alter, the quality of
communications service provided by Tenant on and from Landlord's owned or managed properties.
Tenant shall submit additional relevant information to assist the Landlord in making such evaluation.
Page 3 of 11
Landlord shall give each alternative location proposed by Tenant full and fair consideration, within a
reasonable time so as to allow for the relocation work to be performed in a timely manner. If, in
Tenant's reasonable judgment, no suitable alternative location can be found, Tenant shall remove its
Antenna Facilities as otherwise provided in this Section 3 (c) of this Lease. If an alternative location
for Tenant's Antenna Facilities is found, Landlord and Tenant agree to enter into a new Lease
Agreement with the same terms and conditions of this Lease.
(g) If, during the term of this Lease there is a determination made pursuant to an official
unappealable order of the Federal Communications Commission or any other applicable law,
order, ordinance, regulation, directive, or standard as stated above that use of the Antenna
Facilities by the Tenant poses a human health hazard which cannot be remediated, then (a)
Tenant shall immediately cease all operations of the Antenna Facilities, and (b) the Lease shall
terminate as of the date of Tenants removal of equipment and repairs the property to similar
condition.. If Landlord determines that this Lease must be terminated, then Landlord reserves
rights of unilateral termination and will do so by providing Tenant with a six (6) month written
notice.
9. Default and Right to Cure. Notwithstanding anything contained herein to the contrary and
without waiving any other rights granted to it at law or in equity, each party shall have the right,
but not the obligation, to terminate this Lease on written notice pursuant to Section 13 hereof, to
take effect immediately, if the other party (i) fails to perform any covenant for a period of thirty
(30) days after receipt of written notice thereof to cure or (ii) commits a material breach of this
Lease and fails to diligently pursue such cure to its completion after sixty (60) days' written notice
to the defaulting party.
10. Taxes. Landlord shall pay when due all real property taxes or other fees and
assessments for the Property, including the Lease Area. In the event that Landlord fails to pay
any such real property taxes or other fees and assessments, Tenant shall have the right, but not
the obligation, to pay such owed amounts and deduct them from Rent amounts due under this
Lease. Notwithstanding the foregoing, Tenant shall pay any personal property tax, State
leasehold tax, excise tax, real property tax or any other tax or fee which are directly attributable to
the presence or installation of Tenant's Antenna Facilities, only for so long as this Lease has not
expired of its own terms or is not terminated by either party. Landlord hereby grants to Tenant
the right to challenge, whether in a Court, Administrative Proceeding, or other venue, on behalf of
Landlord and /or Tenant, any personal property or real property tax assessments, State leasehold
tax or excise tax that may affect Tenant. If Landlord receives notice of any personal property or
real property tax assessment, State leasehold tax or excise tax against the Landlord, which may
affect Tenant and is directly attributable to Tenant's installation, Landlord shall provide timely
notice of the assessment to Tenant sufficient to allow Tenant to consent to or challenge such
assessment. Further, Landlord shall provide to Tenant any and all documentation associated
with the assessment and shall execute any and all documents reasonably necessary to effectuate
the intent of this Section.
11. Indemnification.
(a) Each party shall defend, indemnify, and hold harmless the other, its officers, officials,
employees and volunteers from and against any and all claims, suits, actions, or liabilities for
injury or death of any person, or for loss or damage to property, which arises out of the use of the
Premises or Property, except to the extent such injury or damage is due to or caused by the
negligence or willful misconduct of the other party.
(b) Should a court of competent jurisdiction determine that this Lease is subject to RCW
4.24.115, then, in the event of liability for damages arising out of bodily injury to persons or
damages to property caused by or resulting from the concurrent negligence of the Tenant and the
Landlord, its officers, officials, employees and volunteers, the Landlord's liability hereunder shall
be only to the extent of the Landlord's negligence. It is further specifically and expressly
understood that the indemnification provided herein constitutes the Tenant's waiver of immunity
Page 4 of 11
under Industrial Insurance, 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 expiration or termination of this Lease.
(c) Landlord and Tenant waive all rights against each other, (and any of their Subcontractors,
Sub - subcontractors, agents and employees), for damages caused by fire or other perils to the
extent covered by Builders Risk insurance or other property insurance obtained pursuant to the
Insurance Requirements Section of this Lease or other property insurance applicable to the work.
The policies shall provide such waivers by endorsement or otherwise.
12. Insurance.
The Tenant shall procure and maintain for the duration of the Lease, insurance against
claims for injuries to persons or damage to property which may arise from or in connection with
the performance of the work hereunder by the Tenant, its agents, representatives, or employees.
(a) Minimum Scope of Insurance. Tenant shall obtain insurance of the types described
below:
(1) Automobile Liability insurance covering all owned, non - owned, hired, and leased
vehicles. Coverage shall be written on Insurance Services Office (ISO) form or a substitute form
providing equivalent liability coverage. If necessary, the policy shall be endorsed to provide
contractual liability coverage.
(2) Commercial General Liability insurance shall be written on ISO occurrence form CG 00
01 and shall cover liability arising from premises, operations, independent tenants, products -
completed operations, stop gap liability, and personal injury and advertising injury and liability
assumed under an insured contract. There shall be no endorsement or modification of the
Commercial General Liability insurance for liability arising from explosion, collapse, or
underground property damage. The Landlord shall be named as an additional insured under the
Tenant's Commercial General Liability insurance policy with respect to the work performed for the
Landlord using ISO Additional Insured Endorsement or its substantial equivalent and Additional
Insured - Completed Operations endorsement or substitute endorsements providing equivalent
coverage.
(3) Workers' Compensation coverage as required by the Industrial Insurance laws of the
State of Washington.
(b) Minimum Amounts of Insurance. Tenant shall maintain the following insurance limits:
(1) Automobile Liability insurance with a minimum combined single limit for bodily injury and
property damage of $1,000,000 combined single limit per accident.
(2) Commercial General Liability insurance shall be written with limits no less than
$1,000,000 each occurrence, $2,000,000 general aggregate and a $2,000,000 products -
completed operations aggregate limit.
(c) Other Insurance Provisions. The insurance policies are to contain, or be endorsed to
contain, the following provisions:
The Tenant's insurance coverage shall be primary insurance as respects the Landlord.
Any insurance, self- insurance, or insurance pool coverage maintained by the Landlord shall be in
excess of the Tenant's insurance and shall not contribute with it.
(d) Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best
rating of not less than A:VII.
Page 5 of 11
(e) Verification of Coverage. The Tenant shall furnish the Landlord with original certificates
and a copy of additional insured endorsement, evidencing the insurance requirements before
commencement of the work.
(f) Subcontractors. The Tenant shall include all subcontractors shall furnish separate
certificates and endorsements for each subcontractors. All coverage's for subcontractors shall be
subject to substantially the same insurance requirements as stated herein for the Tenant.
(g) No Limitation. Tenant's maintenance of insurance as required by the Lease shall not be
construed to limit the liability of the Tenant to the coverage provided by such insurance, or
otherwise limit the Landlord's recourse to any remedy available at law or in equity.
13. Notices. All notices, requests, demands and other communications shall be in writing
and are effective three (3) days after deposit in the U.S. mail, certified and postage paid, or upon
receipt if personally delivered or sent by next - business -day delivery via a nationally recognized
overnight courier to the addresses set forth below. Landlord or Tenant may from time to time
designate any other address for this purpose by providing written notice to the other party.
If to Tenant, to:
Seattle SMSA Limited Partnership d /b /a Verizon Wireless
180 Washington Valley Road
Bedminster NJ 07921
Attn: Network Real Estate
If to Landlord, to: With a copy to:
Innovation & Technology Dept.
25 West Main St.
Auburn, WA 98092
City Attorney
City of Auburn
25 West Main St.
Auburn, WA 98001
14. Quiet Enjoyment, Title and Authority. Landlord covenants and warrants to Tenant that (i)
Landlord has full right, power and authority to execute this Lease; (ii) it has good and
unencumbered title to the Premises free and clear of any liens or mortgages, except those
disclosed to Tenant and which will not interfere with Tenants rights to or use of the Premises;
and (iii) execution and performance of this Lease will not violate any laws, ordinances, covenants,
or the provisions of any mortgage, lease, or other agreement binding on Landlord.
15. Environmental Laws. Landlord represents that it has no knowledge of any substance,
chemical or waste (collectively, "Hazardous Substance ") on the Property that is identified as
hazardous, toxic or dangerous in any applicable federal, state or local law or regulation. Landlord
and Tenant shall not introduce or use any Hazardous Substance on the Premises in violation of any
applicable law. Landlord shall be responsible for, and shall promptly conduct any investigation and
remediation as required by any applicable environmental laws, for all spills or other releases of any
Hazardous Substance not caused in whole or in part by Tenant, that have occurred or which may
occur on the Property. Each party agrees to defend, indemnify and hold harmless the other from
and against any and all administrative and judicial actions and rulings, claims, causes of action,
demands and liability (collectively, "Claims ") including, but not limited to, damages, costs, expenses,
assessments, penalties, fines, losses, judgments and reasonable attorney fees that the indemnity
may suffer or incur due to the existence or discovery of any Hazardous Substances on the Property
or the migration of any Hazardous Substance to other properties or the release of any Hazardous
Substance into the environment (collectively, "Actions "), that relate to or arise from the indemnitor's
activities on the Property. Landlord agrees to defend, indemnify and hold Tenant harmless from
Claims resulting from Actions on the Property not caused by Landlord or Tenant prior to and during
Page 6 of 11
the Initial Term and any Renewal Term of this Lease. The indemnifications in this section
specifically include, without limitation, costs incurred in connection with any investigation of site
conditions or any cleanup, remedial, removal or restoration work required by any governmental
authority. This Section 15 shall survive the termination or expiration of this Lease.
16. Assignment and Subleasing.
(a) The Tenant may not sublease any portion of the Lease Area, or grant any rights to the
Lease Area to any third parties except as specifically set for in this Lease.
(b) All of the terms and provisions contained herein shall inure to the benefit of and shall be
binding upon the parties hereto and their respective heirs, legal representatives, successors and
assigns. This Lease shall not be assigned by Tenant without the express written consent of
Landlord, which consent shall not be unreasonably withheld, delayed or conditioned. Any
attempted assignment in violation of this Section shall be void. The transfer of the rights and
obligations of Tenant to a parent, subsidiary, or other affiliate of Tenant, or to any successor -in-
interest or entity acquiring fifty -one percent (51%) or more of Tenant's stock or assets, shall not
be deemed an assignment. Tenant shall give to Landlord thirty (30) days' prior written notice of
any such transfer. Notwithstanding the foregoing, this Lease may be sold, assigned or
transferred by the Tenant without any approval or consent of Landlord (but with written notice to
Landlord) to Tenant's principal, affiliates, subsidiaries of its principal or to any entity which
acquires all or substantially all of Tenant's assets in the market defined by the Federal
Communications Commission in which the Property is located by reason of a merger, acquisition
or other business reorganization, provided that the assignee agrees to assume all of Tenant's
obligations under this Lease.
(c) Additionally, Tenant may, upon notice to Landlord, mortgage or grant a security interest in
this Lease and the Antenna Facilities, and may assign this Lease and the Antenna Facilities to any
mortgagees or holders of security interests, including their successors or assigns (collectively
"Mortgagees "), provided such Mortgagees agree to be bound by the terms and provisions of this
Lease. In such event, Landlord shall execute such consent to leasehold financing as may
reasonably be required by Mortgagees. Landlord agrees to notify Tenant and Tenant's Mortgagees
simultaneously of any default by Tenant and to give Mortgagees the same right to cure any default
as Tenant or to remove any property of Tenant or Mortgagees located on the Lease Area, except
that the cure period for any Mortgagees shall not be less than thirty (30) days after receipt of the
default notice, as provided in Section 9 of this Lease. All such notices to Mortgagees shall be sent to
Mortgagees at the address specified by Tenant. Failure by Landlord to give Mortgagees such notice
shall not diminish Landlord's rights against Tenant, but shall preserve all rights of Mortgagees to cure
any default and to remove any property of Tenant or Mortgagees located on the Lease Area.
17. Removal of Antenna Facilities /Holdover. The Antenna Facilities are and shall remain the
property of the Tenant and upon the expiration or earlier termination of this Lease, Tenant shall,
at Tenant's sole cost and expense, and within ninety (90) days of written notice from the City,
remove the Antenna Facilities and restore the Premises to its original condition, normal wear and
tear and loss due to casualty or other causes beyond Tenant's control excluded. If Tenant shall
remain in possession of the Premises at the expiration of this Lease or any Renewal Term
without a written agreement, such tenancy shall be deemed a month -to -month tenancy under the
same terms and conditions of this Lease.
18. Tower Replacement.
(a) Landlord currently owns a light pole at the Property. Following the Commencement Date,
Tenant shall remove the existing light pole at its cost and expense and construct a new tower (the
"Tower") at the Property, as depicted on Exhibit "A" attached hereto and made a part hereof. Prior
to commencement of construction of the Tower, Tenant shall provide plans for the Tower for
Landlord's reasonable approval. Notwithstanding the foregoing, Tenant acknowledges that
Landlord must submit the Tower's design through a permitting process and that Landlord may
Page 7 of 11
require additional information from Tenant and /or may reasonably condition its approval based
upon such permitting process. Tenant will construct the Tower and reinstall Landlord's light bank
on the Tower. Upon Landlord's satisfactory inspection of the Tower, Tenant will execute and
deliver to Landlord a Bill of Sale transferring all of Tenant's right, title and interest in and to the
Tower to Landlord, at no cost to Landlord. Landlord shall accept with Tower in its then - current
condition, however, Tenant shall assign any tower manufacturer's warranty (if applicable) to
Landlord.
(b) Following Tenant's transfer of the Tower to Landlord, Landlord shall lease to the Tenant a
portion of that certain space (the "Tower Space ") on the Tower to install antennas as shown on
Exhibit "A" and related radio equipment and appurtenances described in Exhibit "A" attached hereto
and made a part hereof. Subject to Landlord's prior approval, such approval not to be
unreasonably withheld, conditioned or delayed, Tenant reserves the right to replace the
aforementioned equipment with similar and comparable equipment provided said replacement does
not (i) increase the total number of antennas and /or lines of coaxial cable or (ii) significantly
increase the structural and /or wind loading of said Tower. From and after the Commencement
Date, the term "Premises" as used herein shall collectively refer to the Lease Area, Antenna
Facilities and the Tower Space.
(c) Subject to (i) available Tower structural capacity and (ii) the provisions of Section 6
herein, Landlord shall be permitted, at Landlord's sole cost, to install equipment on the Tower.
Landlord shall have the sole obligation to maintain both the Tower and its equipment.
19. Miscellaneous.
(a) The substantially prevailing party in any litigation, including any arbitration to which the
parties shall submit, arising hereunder shall be entitled to its reasonable attorneys' fees and court
costs, including appeals, if any.
(b) 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 this Lease must be in writing
and executed by both parties. At such time as the Auburn City Council approves any regulation
affecting telecommunications, Tenant agrees to amend this Lease, as determined by the
Landlord in order to comply with any future ordinance related to telecommunications provided,
however, that in no event shall such regulation (i) materially interfere with or affect Tenant's
operation of its Antenna Facilities; or (ii) increase Tenant's financial obligations under the terms of
this Lease, except as provided herein, or impose some new financial obligations not already
contemplated by this Lease. No amendment, change or modification of this Lease shall be valid,
unless in writing and signed by all parties hereto.
(c) Each party agrees to cooperate with the other in executing any documents (including a
Memorandum of Lease in substantially the form attached hereto as Exhibit A) necessary to
protect its rights or use of the Lease Area. The Memorandum of Lease may be recorded in place
of this Lease by either party. In the event the Property is encumbered by a mortgage or deed of
trust, Landlord agrees, upon request of Tenant, to obtain and furnish to Tenant a non - disturbance
and attornment agreement for each such mortgage or deed of trust, in a form reasonably
acceptable to Tenant. Tenant may obtain title insurance on its interest in the Lease Area.
(d) This Lease shall be construed in accordance with the laws of the state in which the
Property is located.
(e) If any term of this Lease is found to be void or invalid, such finding shall not affect the
remaining terms of this Lease, which shall continue in full force and effect. The parties agree that
if any provisions are deemed not enforceable, they shall be deemed modified to the extent
necessary to make them enforceable. No provision of this Lease will be deemed waived by either
party unless expressly waived in writing signed by the waiving party. No waiver shall be implied
Page 8 of 11
by delay or any other act or omission of either party. No waiver by either party of any provision of
this Lease shall be deemed a waiver of such provision with respect to any subsequent matter
relating to such provision.
(f) The persons who have executed this Lease represent and warrant that they are duly
authorized to execute this Lease in their individual or representative capacity as indicated.
(g) This Lease may be executed in any number of counterpart copies, each of which shall be
deemed an original, but all of which together shall constitute a single instrument.
(h) All Exhibits referred to herein and any Addenda are incorporated herein for all purposes.
(i) If Landlord is represented by any broker or any other leasing agent, Landlord is
responsible for all commission fees or other payment to such agent, and agrees to indemnify and
hold Tenant harmless from all claims by such broker or anyone claiming through such broker. If
Tenant is represented by any broker or any other leasing agent, Tenant is responsible for all
commission fee or other payment to such agent, and agrees to indemnify and hold Landlord
harmless from all claims by such broker or anyone claiming through such broker.
(j) Lessee's use of the Premises shall be lawful and in compliance with all applicable laws,
orders, ordinances, and regulations of federal, state, county, and municipal authorities and agencies,
including but not limited to the Federal Communications Commission.
20. Headings. The caption and paragraph headings used in this Lease are inserted for
convenience of reference only and are not intended to define, limit or affect the interpretation or
construction of any term or provision hereof.
21. Liens. Except with respect to activities for which Landlord is responsible, Tenant shall
pay as due all claims for work done on, and for services rendered or material furnished to, the
Antenna Facility, and shall keep the Antenna Facility free from all liens.
LANDLORD: City of Auburn
By:
Nancy Backus, Mayor i
Date:
TENANT: Seattle SMSA Limited Partnership d /b /a Verizon Wireless
By: Cellco Partnership, its general partner
By:
Print Name: Brian Mecum
Its: Area Vice President Network
Date:
(acknowledgements to follow on next page)
Page 9 of 11
STATE OF
COUNTY OF
ss.
I certify that I know or have satisfactory evidence that is the person
who appeared before me, and said person acknowledged that he signed this instrument, on oath
stated that he was authorized to execute the instrument and acknowledged it as the
of
to be the free and voluntary act of such party for the uses and purposes mentioned in the
instrument.
Dated:
Notary Public
Print Name
residing at
My commission expires
(Use this space for notary stamp /seal)
State of California )
ss.
County of Orange )
On before me, , Notary Public,
personally appeared Brian Mecum
who proved to me on the basis of satisfactory evidence to be the person whose name is
subscribed to the within instrument and acknowledged to me that he executed the same in his
authorized capacity, and that by his signature on the instrument the person, or the entity upon
behalf of which the person acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature of Notary Public
Place Notary Seal Above
Page 10 of 11
EXHIBIT A
1. DESCRIPTION OF PROPERTY
The Property is described and /or depicted as follows:
Fulmer Park -1109 5th Street NE, Auburn, WA 98001
2. DESCRIPTION OF LEASE AREA
See Exhibit B: Hearing Examiner Findings of Fact
Page 11 of 11
AGENDA BILL APPROVAL FORM
Agenda Subject: Date:
Resolution No. 5099 August 29, 2014
Department: Attachments: Budget Impact:
Public Works Resolution No. 5099 $0
Administrative Recommendation:
Public Works Committee recommend that City Council introduces and adopts Resolution No. 5099.
Background Summary:
Resolution No. 5099 opposes King County Health District's proposal to close the Public Health
Clinic in Auburn.
The King County Health District, as a part of some cost - saving measures, is proposing to
close a number of health clinics, including the health clinics in South King County — in Auburn
as well as Federal Way. The result would be that the people who depend upon those health
clinics would have to travel to Kent of Renton, or forgo the availability of clinic services. The
people in South King County who depend upon these health clinics are among the more
needy of health clinic clients. Closing these health clinics will adversely affect them as well as
South King County. This resolution seeks to bring to the attention of King County and the
Health District the concerns of the City of Auburn about these clinic closures.
Reviewed by Council Committees:
Public Works, Finance
Councilmember: Staff: Hursh
Meeting Date: September 2, 2014
AUBURN * MORE THAN YOU IMAGINED
RESOLUTION NO.5 0 9 9
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF AUBURN, WASHINGTON, OPPOSING CLOSURE OF
THE KING COUNTY PUBLIC HEALTH CLINIC IN
AUBURN
WHEREAS, Auburn is the 15th largest city in the state, with a population of
74,630 residents; and
WHEREAS, Auburn is a highly diverse community socioeconomically; and
WHEREAS, the City of Auburn and the community share a strong concern for
the disadvantaged members of the community, particularly families with small children;
and
WHEREAS, the City of Auburn commits significant resources annually to
providing safety net services and programs that help lift people out of poverty; and
WHEREAS, the City of Auburn's human services efforts are leveraged with
partnerships with numerous community social services organizations, including, but not
limited to, The Auburn Food Bank, Auburn Youth Resources, and Valley Cities; and
WHEREAS, King County Public Health is facing an approximately $15 million
annual budget deficit and is proposing closure of several local clinics to address the
budget deficit; and
WHEREAS, King County is proposing to close the Auburn Public Health
Clinic beginning in 2015, as well as clinics in Federal Way, Bothell, and White Center.
Two Seattle area clinics proposed for closure will have primary care services
transferred to other healthcare providers; and
WHEREAS, the Auburn clinic closure will eliminate necessary services for 10,700
low- income clients, primarily women and children, that are critical to reducing poverty,
supporting maternal and infant health, and providing family nutrition; and
Resolution No. 5099
August 25, 2014
Page 1 of 6
WHEREAS, in 2013, the Auburn clinic served 3,000 clients with Maternity
Support Services (MSS) and Infant Case Management (ICM) for low- income
pregnant women and some infants through their first year of life; and
WHEREAS, in 2013, the Auburn clinic served 5,700 clients with Women,
Infants and Children (WIC) nutrition services for low- income pregnant women and
children age five and younger; and
WHEREAS, in 2013, the Auburn clinic provided 2,000 clients with family
planning services, reducing unplanned pregnancies, teen pregnancies, and sexually
transmitted diseases; and
WHEREAS, closing the Auburn clinic will eliminate 33 full -time equivalent jobs;
and
WHEREAS, clients of the Auburn clinic are overwhelmingly low- income and
people of color with no medical insurance; and
WHEREAS, the proposal to close both the Auburn and Federal Way clinics will
leave the southernmost cities in King County — the 7th and 5th largest cities in the
County respectively - unserved by a public health clinic, thereby imposing a greater
and disproportionate burden on low- income residents of Auburn and Federal Way to
travel to the City of Kent for health services; and
WHEREAS, while the City of Kent has two public health clinics, many Auburn
and Federal Way public health clients are unlikely to be able to travel to Kent for
public health services; and
WHEREAS, low- income residents have fewer mobility choices and are
dependent on public transit, and available public transit options are expected to be
further restricted by proposed Metro service cuts, including the elimination and
reduction of routes between Auburn and Kent, which compounds the burden of travel
for low- income residents; and
Resolution No. 5099
August 25, 2014
Page 2 of 6
WHEREAS, King County in 2007 adopted the King County Public Health
Operational Master Plan which includes as one of four Guiding Principles, "Driven by
Social Justice: ... Public health will be a voice for the needs of the weak, the poor,
minorities and the disenfranchised. "; and
WHEREAS, King County further emphasized the importance of social justice
regarding health in 2008 by instigating the King County Equity & Social Justice
Initiative, which emphasizes the importance of equal access to basic health care;
and then adopted in 2010 the King County Strategic Plan 2010 -2014: Working
Together for One King County, which emphasizes equitable opportunities for all
people and communities.
NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN,
WASHINGTON, RESOLVES as follows:
Section 1. The City Council opposes the proposal to close both the Auburn and
Federal Way public health clinics, which would leave the southernmost part of King
County without a public health clinic, while three clinics are located in Renton and
Kent; and
Section 2. The City Council understands the need to address the revenue
shortfalls in the King County Public Health budget requests. The City Council firmly
believes that any cuts should reflect a commitment to equity across the county's
service area and reflect the location of populations of need. As such, the City Council
requests that the clinic closure proposal for King County Public Health be revised to
provide more equitable coverage of remaining clinics and avoid leaving the
southernmost part of King County without a public health clinic.
Section 3. The Mayor is authorized to implement such other administrative
procedures as may be necessary to carry out the directives of this legislation.
Section 4. That this Resolution shall take effect and be in full force upon
passage and signatures hereon.
Resolution No. 5099
August 25, 2014
Page 3 of 6
Dated and Signed this day of , 2014.
ATTEST:
Danielle E. Daskam, City Clerk
APPROV D AS TO FORM:
Da iel B. H • , _ ' Attorney
Resolution No. 5099
August 25, 2014
Page 4 of 6
CITY OF AUBURN
NANCY BACKUS, MAYOR