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HomeMy WebLinkAbout11-072 - Clear Channel Outdoor - Property Lease at 2140 Southwest 43rd Street (for Billboard)Ref. 11 -072 Council Approval 4/4/11 r CLEARCHANNEL OUTDOOR Memorandum of Understanding Tukwila Digital Billboards (1) In consideration of being granted a face size increase as permitted by Tukwila Municipal Code "TMC 19.38 and other good and valuable consideration the receipt of which is hereby acknowledged, Clear Channel Outdoor "CCO will display advertising copy as required by TMC 19.38.040 (4)(b) on the electronic /digital sign face on behalf of the City, with no charge for advertising space, of the following advertising messages only: emergency alerts, public service, welcome messages or community events in the City of Tukwila "City Messages subject to the following conditions and parameters: 0) Except for emergency alerts, all copy will be submitted to CCO at least 14 days before the proposed display date and will be subject to CCO's standard advertising copy rejection and removal policies which allow CCO the right in CCO's sole discretion to approve or disapprove copy and remove copy once posted or displayed. (ii) The City shall be guaranteed a minimum total of 28 calendar days of free posting per year utilizing one rotating 8 second slot on the 14'x48' static digital sign located on land leased from the City of Tukwila at the northeast corner of West Valley Highway and S 180 Avenue. To utilize this space the City shall provide CCO with thirty (30) day advanced notice. The 30 -day notice does not apply to emergency alerts. The City shall not charge for, or exchange goods or services for, any electronic /digital sign space on a CCO sign. (iii) CCO will provide creative and production services free of charge. (iv) If at any time in the future CCO removes the electronic /digital sign face(s) from the sign structure(s) or CCO is unable to operate the electronic /digital sign face(s), for any reason, the advertising spot commitments in this section shall be automatically 1 Corporate REPA February 2012 r CLEARCHANNEL OUTDOOR Memorandum of Understanding Tukwila Digital Billboards terminated and rendered null and void. CCO would then be under no obligation whatsoever to provide the City with any type of free advertising space. However, any time CCO operates the sign(s) with electronic /digital technology, the advertising spot commitment shall remain in place. 2. Emergency Alerts. Clear Channel Outdoor will provide local, state and federal law enforcement agencies, first responders and emergency relief agencies with free posting of its Emergency Message System (EMS) for posting of messages in time of Emergency. Such messages shall pre -empt paid advertising for a reasonable period of time according to the nature of the message. In most circumstances, the entire Tukwila network of digital signs will lock down emergency messages for the first 60 minutes, then be part of the normal rotation of messages as long as needed by our EMS partners. Certain situations would be different (Tsunami, Earthquake, etc.) where we would take our direction from state and federal agencies on frequency. Emergency alerts shall not count towards the permitted 28 -day per year allowance as described in paragraph 1 (ii). CCO shall have in place protocols to ensure that the City has the ability to utilize the billboard during normal operating hours of the sign. 3. This MOU shall remain in effect for fifteen (15) years or until the billboard structure is removed whichever occurs first. If at any time Clear Channel Outdoor ceases to display advertising copy per this MOU, Clear Channel Outdoor's face size increase shall be terminated and face size shall be reduced to 500 square feet per face within 30 days of written notice by the City. The MOU may be amended at any time by mutual, written consent of the signatory parties through their authorized representatives. This MOU becomes effective upon the last date of signature by the duly authorized representatives of the parties noted below. 2 Corporate REPA February 2012 M CLEARCHANNEL OUTDOOR Memorandum of Understanding Tukwila Digital Billboards Agreed to By: A Clear Channel Outdoor Duane Weiss, President City S kwila Jim Haggerton, Mayor Date Date Corporate REPA February 2012 11 -072 Council Approval 4/4/2011 CLEAR CHANNEL OUTDOOR LEASE AGREEMENT Lease 1. This Lease Agreement "Lease is dated effective as of April 1 2011, and entered into by and between CITY OF TUKWILA "Landlord and CLEAR CHANNEL OUTDOOR, INC., a Delaware corporation "Tenant Landlord hereby leases to Tenant the real estate commonly known as 2140 SW 43 Street and situated in the City of Tukwila, County of King in the State of Washington, whose permanent property tax number and legal description are attached hereto and incorporated herein by reference as Exhibit A (the "Property The Property is leased for the purpose of erecting, maintaining, operating, improving, supplementing, posting (whether physically, digitally or via other remotely changeable technology), illuminating, repairing, repositioning and /or removing outdoor advertising structure, including, without limitation, fixture connections, electrical and broadband supply and connections, panels, signs whether digital, static or similar technologies), copy and any other equipment and accessories as Tenant may place thereon (collectively, the "Structure This Lease includes all necessary rights of ingress and egress. Tenant may license the use of the Structure, or any portion thereof, for any lawful purpose. 2. This Lease shall be in effect for an initial term of fifteen (15) years, commencing on the date construction permits are approved by the City of Tukwila. If for any reason Tenant is unable to either complete construction of the Structure and /or fails to obtain the necessary governmental authorizations to operate the Structure, Tenant may terminate this Lease immediately upon notice to Landlord. If the structure is not built within 1 year of mutual execution of this lease agreement then the lease shall terminate. This Lease Agreement shall not be construed as a building land use and /or public works permit. Tenant is responsible for obtaining necessary city permits prior to constructing the structure. CLEAR CHANNEL shall have the right to terminate this Lease at the end of any monthly period during the initial term or any subsequent term upon notice to Landlord served not less than thirty (30) days prior to the end of any monthly period. 3. Tenant shall pay Landlord rent in the amount of Twenty Five Thousand Dollars ($25,000.00) per year payable in full upon commencement of the term and each anniversary date thereafter for the period of time commencing when tenant has approval from governmental entities for the construction of the structure. Annual rent shall increase by seven and one half percent (7.5 on the fifth (5` and tenth (10` anniversaries of the Lease commencement. 4. This Lease shall continue in full force and effect for its initial term from the date construction permits are approved by the City of Tukwila. During any term of this Lease and for a period of ninety (90) days following the expiration or earlier termination of this Lease, Landlord hereby grants to Tenant a right of first refusal, acceptance of which is exercisable at Tenant's sole discretion, to match the material terms of any offer acceptable to Landlord for the use or purchase of all or any portion of the Property and /or to match the material terms of any offer acceptable to Landlord for the use of purchase of any parcel or collection of parcels that includes the Property (the "Offer"), which includes, without limitation, similar time periods for performance and investigation as are set forth in the Offer. A copy of all relevant document(s) containing the Offer received by Landlord shall be delivered to Tenant (the "Offer Documents Tenant shall then have twenty (20) days from its receipt of the Offer Documents in which to match the material terms of the Offer by giving notice of acceptance to Landlord. If Tenant rejects the Offer and the Property transfers pursuant to the terms of the Offer, Landlord shall promptly notify Tenant of such transfer and provide Tenant with any relevant contact information and rental payment submission addresses of such new owner of the Property. Prior to transferring ownership of the Property, Landlord shall furnish the new owner with a copy of this Lease. 5. Tenant is and shall remain the owner of the Structure until Tenant no longer has any rights to use or possess the Property whether (1) under this Lease, or any extension, renewal, or modification of this Lease; (2) by operation of law; (3) as a holder -over tenant; or (4) as such right is otherwise held by Tenant, provided, however, that Tenant has the right to remove the Structure at any time. Tenant must remove the structure within 30 -days of termination of this Lease or termination of tenant's right to use or possess the property. If tenant fails to remove the structure, the Landlord may remove the structure and seek reimbursement from the tenant for the removal and disposal of the sign and any associated legal fees. If for any reason Tenant's Structure is removed, materially damaged or destroyed, all rent payments shall cease for up to ninety (90) days until the Structure is rebuilt and all necessary governmental authorizations are obtained to operate the Structure. After 90 days tenant shall pay fifty percent (50 of the scheduled rent until repairs or replacement is completed or Tenant may terminate the Lease. If the Structure is removed for any reason, only the above ground portions of the Structure need be removed. Tenant has the sole right to make any necessary applications with, and obtain permits from, governmental entities for the construction, use and maintenance of the Structure. All such permits and other rights to outdoor advertising on the Property shall remain the property of Tenant. Tenant shall have no obligation to pursue any zoning matter or to continue to maintain any permit. Any such action shall be at Tenant's option. V- 1, M-d o f 2 0_rI941,1,t CG' 6. Landlord and Landlord's tenants, agents, employees or other persons acting on Landlord's behalf, shall not place or maintain any object on the Property or any neighboring real property owned or controlled by Landlord, excluding City of Tukwila owned right of way or easements, which, in Tenant's sole opinion, would obstruct the view of the advertising copy or display on the Structure. If Landlord fails to remove the obstruction within fifteen (15) days after notice from Tenant, Tenant may in its sole discretion: (a) remove the obstruction at Landlord's expense; (b) cancel this Lease, remove any or all of the Structure, and receive all pre -paid rent for any unexpired term of this Lease; or (c) reduce the rent to One Hundred Dollars ($100.00) per year while the obstruction continues. Tenant may trim any trees and vegetation currently on the Property and on any neighboring property owned or controlled by the Landlord as often as Tenant in its sole discretion deems appropriate to prevent obstructions. Without limiting the foregoing, Landlord shall not permit the Property or any neighboring property owned or controlled by Landlord to be used for off premise advertising. 7. If, in Tenant's sole opinion: (a) the view of the Structure's advertising copy becomes entirely or partially obstructed, (b) electrical service is unavailable; (c) the Property cannot safely be used for the erection or maintenance of the Structure for any reason; (d) the Property becomes unsightly; (e) there is a diversion, reduction or change in directional flow of traffic from the street or streets currently adjacent to or leading to or past the Property; (f) the Structure' value for advertising purposes is diminished; (g) Tenant is unable to obtain or maintain any necessary permit for the erection, use and /or maintenance of the Structure; or (h) the Structure's use is prevented or restricted by law, or Tenant is required by any governmental entity to reduce the number of billboards operated by it in the city, county or state in which the Structure are located; then Tenant may immediately at its option either: (i) reduce rent in direct proportion to the loss suffered; or (ii) cancel this Lease pursuant to paragraph 2 and receive all pre -paid rent for any unexpired term of this Lease. In addition, if Tenant is prevented from illuminating its signs by law, or other cause beyond Tenant's control, the rent shall be reduced by one -third for such period of non illumination. In the event that rent is reduced as outlined in this paragraph landlord and tenant shall first use best efforts to resolve the issue which has caused the rent reduction. In the event that a mutually agreeable solution can not be reached in 30 days then Landlord may terminate the Lease after giving Tenant at least 90 days notice. 8. (a) If the Structure or the Property, or any part thereof, is condemned by proper authorities or taken without the exercise of eminent domain, whether permanently or temporarily; (b) if any right -of -way from which the Structure is visible is relocated; (c) if there is a diversion, reduction or change in directional flow of traffic from the street or streets currently adjacent to or leading to or past the Property; (d) if visibility to the Structure is impaired; (e) if the value or utilization of the Structure is reduced; (f) or the Structure's use is prevented or otherwise restricted, then Tenant shall have the right to relocate the Structure on Landlord's remaining property or to terminate this Lease upon not less than thirty (30) days' notice and to receive all pre -paid rent for any unexpired term of this Lease. Tenant shall be entitled to all compensation and other remedies provided by law, including, without limitation, just compensation for the taking of the Structure and Tenant's leasehold interest in this Lease, limitation on the use or maintenance of the Structure, loss of goodwill, and /or relocation assistance. Landlord shall assert no rights in such interests. If condemnation proceedings are initiated, Landlord shall use its best efforts to include Tenant as a party thereto. No right of termination set forth anywhere in this Lease may be exercised prior to the sale to any entity with the power of eminent domain or by or for the benefit of any entity with the power of eminent domain. 9. Landlord represents that it is the owner (or owner's authorized agent) of the Property and has the authority to enter into this Lease. Landlord shall provide a readily accessible access point to the Property for Tenant to enter and exit the Property for installation and maintenance of the Structure. Access will be granted either from the east through the neighboring cabinet shop property or Landlord will grant permission for Tenant to gain access over the curb and sidewalk on the south end of the Property. In the event that a ramp needs to be constructed for safe truck access to the Property Tenant shall construct such a ramp at its own expense. The cost associated with constructing the ramp shall be reimbursed by Landlord via a rent credit in the amount of the cost of the ramp not to exceed five thousand dollars, ($5,000). 10. If the Property is currently encumbered by a deed of trust or mortgage, ground lease or other similar encumbrance, Landlord shall deliver to Tenant on or before the commencement date hereof a non disturbance agreement in a form reasonably acceptable to Tenant. 11. If (a) Tenant has not been informed of the current address of Landlord or its authorized agent, or (b) two or more of the monthly payments sent by Tenant are not deposited by Landlord within ninety (90) days after the last such payment is sent by Tenant, then no further rent shall be payable hereunder for the period commencing with the due date of the first such payment not deposited and continuing until Landlord (i) gives Tenant notice of its business address or that of its authorized agent or (ii) deposits all previous payments. In either case, Tenant's rent obligations shall be reinstated retroactively as if neither event described in (a) or (b) of this section had occurred. 12. Tenant shall indemnify and hold Landlord harmless from all injuries to the Property or third persons caused by Tenant's employees, agents, licenses and contractors and for all claims, demands, lawsuits for damages arising out of Tenant's use of the Property. Landlord shall indemnify and hold Tenant harmless from all injuries to Structure or third persons caused by Landlord, Landlord's employees, agents, licensees and contractors. 13. This Lease is binding upon the heirs, assigns and successors of both Landlord and Tenant. Landlord agrees not to assign this Lease to any competitor of Tenant without Tenant's prior written permission. Tenant shall have the absolute right to assignor sublet the structure. Landlord shall have the right to use the property and lease remaining portions of the property provided those leases do not impact Tenants use of the property or Tenants about to maintain the Structure. Landlord agrees not to lease any portions of the property to a competitor of Tenant. 14. Any notice to any party under this Lease shall be in writing sent by certified or registered mail, and shall be effective on the earlier of (a) the date when delivered and receipted for by a person at the address specified within this Lease, or (b) the date which is three (3) days after mailing (postage prepaid) by certified or registered mail, return receipt requested, to such address; provided, that in either case notices shall be delivered to such other address as shall have been specified in writing by such party to all parties hereto prior to the notice being delivered. 15. This Lease shall be governed exclusively by the provisions hereof and by the laws of the state in which the Property is located, as the same may from time to time exist without regard to conflicts of laws provisions. Any action or proceeding seeking to enforce any provision of, or based on any right arising out of, this Lease may be brought against any of the parties only in the courts within the county in which the Property is located, or, if it has or can acquire jurisdiction, in the United States District Court for the applicable district located in the applicable county where the Property is situated, and each of the parties consents to the jurisdiction of such courts (and of the appropriate appellate courts) in any such action or proceeding and waives any objection to venue laid therein. If suit is brought or an attorney is retained by any party to this Lease because the other party breached this Lease, the prevailing party shall be entitled to reimbursement for reasonable attorneys' fees and all related costs and expenses. 16. Neither Landlord nor Tenant shall be bound by any terms, conditions or oral representations that are not set forth in this Lease. This Lease represents the entire agreement of Tenant and Landlord with respect to the Structure and the Property and supercedes any previous agreement. Landlord hereby grants Tenant all rights necessary to record a memorandum of this Lease without Landlord's signature, including a limited power of attorney for such purpose. TENANT: LANDLORD: CLEAR CHANNEL O *DNC. CITY OF TUKWILA By: I r Its: /sia�itli Jim erton, M Branch Address: Pri a ame o lord: CA KA Invie- i a. WI/ A dr ss: &Q S c< d 1A k UlA Qrc-iQ- 9� i el No. (Zo& Tel No. (Stye) 43A -I "D Tax ID No. 91- &pV /Sl °1 ATTEST /AUTHENTICATED APPROVED AS TO FORM T _a ChrisC CMC, City Clerk CityAtter e a Date approved by City Council :ADt'e, 4 got I Clear Channel Notary: State of Washington County of King On this 2011 personally appeared before me Olivia Lippens to me known to be the individual, or indivi uals, described herein and who executed the within and foregoing instrument, and acknowledged that she signed the same as her free and voluntary act and deed, for the uses and purposes therein mentioned. In Witness Whereof I have hereunto set my hand and affixed my official seal the day and year first above written (Si nature) (Name of Notary NOTARY PUBLIC in and for the State of Washington Residing C J at: My commission expires: Exhibit A Permanent Property Tax Number: 362304 -9037 Legal Description: POR OF NW 1/4 BEG 30 FT N 1275.75 FT W FROM NE CORNER OF HENRY ADAMS DONATION CLAIM TH N 120 FT TH W 98 FT TH S 57 FT TH W 72 FT TO ELY MGN OF WEST VALLEY HWY TH SLY ALG SAID ELY MGN TAP 30 FT N OF PLW N LINE OF HENRY ADAMS DONATION CLAIM TH E TO POB LESS POR FOR STATE HWY