HomeMy WebLinkAbout23-157 - Bellwether Tukwila, LLLP - Telecommunications Facilities Lease Agreement (Confluence Apartments)23-157
Council Approval 3/20/23
TELECOMMUNICATIONS FACILITIES LEASE AGREEMENT
THIS LEASE is entered into as of the day of 8 x'°52023 ("Effective Date") by
and between the City of Tukwila ("Lessee"), Washington, and Bellwether Tukwila LLLP, a Washington
Limited liability limitedpartnership having a place of business at 3631 S 152nd St Tukwila, WA, 98188
("Bellwether Tukwila LLLP" or "Lessor"), collectively the "parties", pursuant to Chapter
of the Tukwila Municipal Code ("TMC") and for the mutual benefits to be derived.
RECITALS
WHEREAS, the parties desire to enter into a Telecommunications Facilities Lease
Agreement which will allows Lessee to construct, maintain, manage, and operate
Telecommunications Facilities at 3631 S 152nd St, Tukwila, Washington, which will expire on 1
Sept 2028.
NOW, THEREFORE, in consideration of Lessor consenting to Lessee to install and
operate a Telecommunications Facility on the Premises, together with other good and valuable
consideration as set forth herein, as well as the promises contained herein, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Location of Facilities
Telecommunication Facilities, as defined in Section 2 below, are located on and adjacent
to a portion of the real property located at '3631 S 152nd St Tukwila, WA, 98188 ("Property"), as
legally described in Exhibit A, the portion of the Property leased for Lessee's
Telecommunications facilities are illustrated by the plans in Exhibit B (the "Premises"), all of
which are attached and incorporated by this reference, for the purposes of providing a wireless
communications system.
2. Authority Granted
Lessee is hereby authorized to operate Lessee's Telecommunications Facilities on the
Premises, install necessary supporting equipment, and construct necessary improvements at the
Premises, subject to Lessee obtaining required development permits and authorizations from the
City and King County. Lessee shall diligently and continuously pursue such permits and
authorizations. Subject to non -substantive changes resulting from the development review
process(es), the original and any subsequent installation of ground space equipment, Lessee's
Equipment (as shown on Exhibit C) and supporting equipment and improvements (collectively
the "Telecommunications Facilities" or "Telecommunication Facility"), shall be no more
extensive than, and substantially in compliance with the written descriptions as contained in
Exhibit B and Exhibit C. No substantive expansions, additions to or modifications or relocation
of any of the described and depicted Telecommunications Facilities within or outside of the
Premises shall be permitted without Lessee first having received prior authorization from the
Lessor through an amendment to this Lease. Written determination by the Lessor granting or
denying any proposed amendment to this Lease may be withheld, conditioned, or delayed, in
Lessor's sole discretion.
Lease
Page 1 of 21
3. Rights Granted
Nothing contained within this Lease shall infringe upon the Lessor's right to use the Property
upon which Telecommunication Facilities are installed or the Premises for any purposes the Lessor
shall so desire. Further, nothing contained herein shall convey any right, privilege, title, or interest
in the Property or Premises to Lessee. This Lease merely authorizes Lessee to use and occupy the
Premises, as depicted on Exhibit B and Exhibit C, for the limited purposes stated herein. This
Lease shall not be deemed to constitute any warranty of title.
4. Installation and Removal of Lessee's Improvements
All improvements installed by Lessee, excluding Lessee's Equipment, but including
buildings, landscaping and all other affixed improvements shall become the property of the Lessor
upon expiration or termination of the Lease if not removed by Lessee after ninety (90) days after
expiration of this Lease and Lessee shall within thirty (30) days of written request, execute any
documents to further confirm conveyance of title if so requested by the Lessor. Provided, however,
that the Lessor may require Lessee to remove the same at its sole cost and expense within ninety
(90) days after the termination or expiration of this Lease. In the event the Lessor requires Lessee
to remove any such improvements, the same shall be accomplished within ninety (90) days after
notice from the Lessor to Lessee of the requirement of removal. Prior to the commencement of
installation or removal construction, Lessee shall obtain approval of its plans from the Lessor.
5. Access
Lessee shall have at all times the right of ingress and egress to and from the Premises, over
and across the Lessor's property adjacent to the Premises; provided however, that such right will
not in any manner interfere with the Lessor's use of the Premises or adjacent property, be exercised
in a commercially reasonable manner to minimize any impact or disturbance to the remainder of
Lessor's property (including Lessor's tenants), and this right of ingress and egress shall terminate
ninety (90) days after the termination or expiration of this Lease. Lessee's right to use the Property,
other than the Premises, for access is limited to the areas of the Property strictly necessary for
access to the Premises and only for the period of time strictly required to provide such access.
However, except in the event of emergency as specified in Section 7, Lessee shall give three (3)
days advance written notice to the Lessor prior to commencement of any maintenance or repair of
its Telecommunications Facilities located upon the Premises. The parties will use good faith efforts
to coordinate their schedules, to minimize impact to Lessor's property (and its tenants).
6. Lessor Work
If at any time the Lessor determines that the Premises must be entered to perform work and
the work to be performed is in an area near or adjacent to the Telecommunication Facilities, upon
request by the Lessor the Lessee shall shut down the Telecommunication Facilities that are in close
proximity to the Lessor's work for the duration that personnel will be performing work near or
adjacent to the Telecommunications Facilities. Lessor will endeavor to contact Lessee at least five
(5) working days in advance of any scheduled work which will require a shutdown request. The
parties will use good faith efforts to coordinate their schedules, to minimize the down time for the
Lease
Page 2 of 21
Telecommunication Facilities, and to schedule the down time outside of Lessee's customers' peak
periods of usage if it is reasonable to do so under the circumstances.
7. Emergency Work
In the event of any emergency at the Premises, the Lessor shall have the right to turn off
the Telecommunications Facilities without prior notification. Lessee shall ensure that any switches
for turning off the Telecommunications Facilities are properly labeled, include an emergency
contact phone number, and are readily accessible to the Lessor. The Lessor will endeavor to notify
the Lessee as soon as possible of any emergency that requires the Lessor to turn off the
Telecommunications Facilities.
In the event of any emergency in which any of the Telecommunications Facilities located
on Lessor -owned property breaks, are damaged, or if Lessee's construction area is otherwise in
such a condition as to immediately endanger the property, life, health, or safety of any individual,
Lessee shall immediately take the proper emergency measures to repair its facilities, to cure or
remedy the dangerous conditions for the protection of property, life, health, or safety of individuals
without first applying for and obtaining any permit or other authorization as required by this Lease.
However, this shall not relieve Lessee from the requirement of notifying the Lessor of the
emergency work and obtaining any permits necessary for this purpose after the emergency work.
Lessee shall notify the Lessor by telephone immediately upon learning of the emergency and shall
apply for all required permits not later than the second succeeding day business day.
8. Dangerous Conditions, Authority for Lessor to Abate
Whenever Lessee's exercise of rights under this Lease, including, without limitation,
construction or installation of the Telecommunications Facilities authorized by this Lease, has
caused or contributed to a condition that appears to substantially impair Lessor -owned property,
the Lessor may direct Lessee, at Lessee's own expense, to take reasonable action to protect Lessor -
owned property. Such action may include compliance within a prescribed time.
In the event that Lessee fails or refuses to promptly take the actions directed by the Lessor,
or fails to fully comply with such directions, or if emergency conditions exist which require
immediate action, the Lessor may enter upon the property and take such actions as are reasonably
necessary to protect the Lessor -owned property, or actions regarded as necessary safety
precautions; and Lessee shall be liable to the Lessor for the costs thereof. The provisions of this
Section shall survive the expiration, revocation, or termination by other means of this Lease for so
long as the Telecommunication Facilities are on the Premises.
9. Term and Renewal
The lease commences on September 1, 2023 ("Effective Date"). The rights granted under
this Lease shall have a term of five (5) years ("Initial Term").
After the Initial Term, unless (a) the Lessor gives written notice to Lessee that a renewal
application will be required, or (b) that the Lease will not be renewed or extended by the Lessor,
such notice for (a) and/or (b) being received at least one hundred twenty (120) days prior to the
end of the Lease's then current term, Lessee shall have the right to extend this Lease for additional
Lease
Page 3 of 21
five-year terms. The additional successive renewal terms shall be deemed to have occurred
automatically without action by either party, subject to the application process described below
and Lessor's termination right described above. The Initial Term as properly extended hereby is
referred to as the "Term." The first successfully renewed additional five (5) year term is referred
to as the "First Renewal Term," each successive renewal term is referred to with a corresponding
number (i.e. the second renewal would be the "Second Renewal Term" and the fifth such renewal
would be the "Fifth Renewal Term"), and all terms following the Initial Term are referred to as
the "Renewal Term". If, at least one hundred twenty (120) days prior to the expiration of the then -
current Renewal Term, the Lessor gives written notice to Lessee that a renewal application will be
required, if Lessee desires to renew the Lease, then Lessee shall file an application for renewal at
least thirty (30) days before expiration of this Lease. Notwithstanding the preceding sentence and
anything in this paragraph to the contrary, Lessor shall be deemed to require Lessee to submit a
renewal application to extend this Lease for the First Renewal Term. The renewal application for
each Renewal Term shall include the following items in (A) and (B) and subject to the terms in
(C):
A. Any information required pursuant to this Lease;
B. All deposits or charges required pursuant to Code; and
C. Recognizing that the Lessor is under no obligation to grant a renewal of this Lease,
which may be granted in Lessor's sole discretion, the Lessor shall consider and take
action on renewal applications within one hundred twenty (120) days after
receiving a complete application. When such action is taken the Lessor shall issue
a written determination denying, granting, or granting with conditions that are
reasonably necessary to ensure compliance with Code or any other such criteria as
Lessor may choose to apply.
Notwithstanding anything to the contrary in this Section 9 to the contrary, this Lease may
not be renewed by the Lessee if there has been an uncured breach of the Lease during the preceding
term and shall not be renewed until any ongoing violations or defaults in the Lessee's performance
of this Lease or of the requirements of Code and any other lawful applicable regulations relating
to the use and management of the Premises, have been cured, or a plan detailing the corrective
action to be taken by the Lessee has been approved by the Lessor.
10. Consideration
The Annual Rental Fee ("Annual Rent") for the Premises shall be 0 (zero) and no/100
dollars ($0.00) per year, plus applicable leasehold tax, except as modified below. Any other sums
due to Lessor under this Lease shall be payable within thirty (30) days, unless a shorter or longer
time period is specified in this Lease, and any delinquent payment shall bear interest at a rate of
twelve percent (12%) per annum.
11. Reimbursement of Lessor Expenses
Lessee shall promptly reimburse the Lessor for any and all costs the Lessor reasonably
incurs in response to any emergency caused by the Telecommunications Facilities, including,
without limitation, Lessor's investigation and mitigation costs.
Lease
Page 4 of 21
Lessee shall, within thirty (30) days after written demand, reimburse the Lessor upon
submittal by the Lessor of an itemized billing by project of costs associated with Lessee's
proportionate share of all actual, identified expenses reasonably incurred by the Lessor in
responding to such emergency.
12. Business Purpose
Lessee shall conduct and carry on its business and operations in the Premises, including
operation of the Telecommunications Facilities, only the business for which the Premises are
leased and shall not use the Premises for any additional or illegal purposes. Lessee agrees that no
stock of goods will be carried, or anything done in or about the Premises which will increase the
present rate of insurance.
13. Alterations
As provided in Section 2 hereof, Lessee shall not make any expansions, alterations,
additions, relocation, modification, or improvements (together, "Alterations") to said Premises
without the prior review and authorization from the Lessor through an amendment to this Lease.
Lessee shall submit to Lessor a written request for Alterations or any change and any supplemental
materials for Lessor's evaluation and approval. Lessor shall have sixty (60) days after receipt of
all requested materials in which to respond to such request.
14. Compliance with All Applicable Laws
Lessee agrees to comply with all present and future federal, state, and local laws,
ordinances, rules, orders, and regulations (together, "Laws") in connection with its construction
on the Premises or Property, its use of the Premises or Property, and in performing any and all
work upon the Premises or Property. Lessee further agrees to indemnify, defend, save and hold
the Lessor harmless from damage, loss or expense arising out of the said use of the Premises in
compliance with all Laws or work and Lessee's general compliance with Laws pursuant to its
exercise of rights under this Lease, unless caused by the Lessor's sole negligence or misconduct,
and to remove all liens or encumbrances arising as a result of said use or work (including, for
avoidance of doubt, any construction of the Telecommunication Facilities or Alterations). Lessee
shall, at its own expense, maintain the Premises and the Telecommunication Facilities in a safe
condition, in good repair and in a manner suitable to the Lessor. Additionally, Lessee shall keep
the Premises and Property free of debris and anything of a dangerous, noxious, or offensive nature
or which would create a hazard or undue vibration, heat, noise, or any interference with Lessor
services or any tenant of Lessor. Lessee shall have sole responsibility for the maintenance, repair
and security of the Premises, the Telecommunication Facilities, and Lessee's other equipment,
property, and leasehold improvements, and shall keep the same in good repair and condition during
the Lease Term.
15. Permits and Licenses
This Lease is contingent upon Lessee's obtaining all required governmental permits,
licenses, and approvals to locate on the Premises and offer Lessee's proposed services. Lessee
shall not commence construction of any of the Telecommunication Facilities until commencement
of this Lease and issuance of all necessary governmental permits, licenses, and approvals. If
Lease
Page 5 of 21
Lessee is unable to obtain such permits, licenses and approvals on or before September 28, 2023,
Lessor or Lessee may cancel this Lease and obtain a pro rata refund of any rents paid without
further obligation by giving thirty (30) days prior written notice to the other party. Any holding
over after the expiration of the term thereof, with the consent of the Lessor, shall be construed to
be a tenancy from month to month and shall otherwise be on the terms, covenants and conditions
herein specified, except that Lessee shall pay Lessor a monthly rent of $1.00. Lessee accepts the
Premises in the condition existing as of the Effective Date. Lessor makes no representation or
warranty with respect to the condition of the Premises, or the premises and Lessor shall not be
liable for any latent or patent defect in the Premises.
16. Cancellation
In the event that Lessee determines that the Premises is unsuitable for the intended purpose
based upon initial or future engineering or technological requirements, Lessee reserves the right
to cancel this Lease upon one hundred twenty (120) days written notice to the Lessor, unless a
different notice period is specified elsewhere in this Lease. In such event, no prepaid rent shall be
refundable and Lessee's rights and obligations, except for restoration, as specified in Section 34,
and indemnification, as specified in Section 20, and maintenance of insurance, as specified in
Section 19, and compliance with Laws and removal of all liens and encumbrances as specified in
Sections 14 and 15 shall cease.
17. Interference
The Lessor may have previously entered into leases with other lessees and rebroadcast
agreements for digital audio signals (together, "senior lessees") to lease space on the Property
and/or Premises for senior lessees' equipment and broadcasting/antenna facilities. Lessee
acknowledges that the Lessor is leasing or entering into agreements concerning the Property and
Premises for the purposes of transmitting and receiving telecommunication signals from the
Premises and Premises and for the purposes of sending/receiving digital audio signals. The Lessor,
however, is not in any way responsible or liable for any interference with Lessee's use of the
Premises (and portions of the Property Lessee is entitled to use for the limited purposes permitted
under this Lease), which may be caused by Lessor or any senior lessees, including, without
limitation, the use and operation of Lessor -operated electronics equipment or any senior lessee's
electronics equipment, even if caused by new technology. In the event that any senior lessee's
activities or electronics/equipment existing as of the Effective Date of this Lease or subsequently
installed interfere with Lessee's use of the Premises, and Lessee cannot work this interference out
with the other senior lessees, Lessee may, upon thirty (30) days' notice to Lessee, terminate this
Lease and restore the Premises and Property to its original condition, reasonable wear and tear
excepted and subject to complying with Section 16, Section 34, and the Sections referenced
therein. In such event, Lessee shall be entitled to a pro rata refund of all pre -paid rent, if any.
Lessee shall cooperate with all other users to identify the causes of and work towards the resolution
of any electronic interference problem. In addition, Lessee agrees to eliminate any interference
caused to Lessor's or senior lessees' facilities or to radio or television equipment or surrounding
residences in the vicinity of the subject property by Lessee's facilities at Lessee's own expense and
without imposition on Lessor equipment. The Lessor has the right to grant rights for use of other
telecommunications facilities on the Property and the Lessor agrees that it will use reasonable
Lease
Page 6 of 21
efforts to protect Lessee from interference from subsequent users of the Property through
appropriate lease terms.
18. Relocation of the Telecommunication Facilities
Within ninety (90) days following written notice from the Lessor, Lessee shall, at its own
expense, temporarily remove, relocate, change or alter the position of the Telecommunications
Facilities upon the Property whenever the Lessor or their respective designee shall have
determined that such removal, relocation, change or alteration is reasonably necessary for
construction, alteration, repair, maintenance, installation, or improvement for the operations of the
Lessor owned personal and real property, including the Property or any operations of senior lessees
under their respective leases. Any removal, relocation, change or alternations shall be at the
Lessee's own expense. When such a notice is given by the Lessor, the Lessor and Lessee shall
execute a lease amendment documenting the new Premises. If Lessee requests an alternative
location for the new Premises or other amendments to this Lease in connection to the same, Lessor
shall be entitled to a reasonable fee for the out of pocket costs incurred by Lessor to review and
approve of such proposals. In lieu of accepting the new Premises described by Lessor, Lessee shall
have the right to terminate this Lease upon thirty (30) days written notice to the Lessor from the
date of receipt of Lessor's proposed new Premises and exercise of rights under this Section 18 and
Lessee shall be entitled to a pro rata refund of all pre -paid rent. Notwithstanding the foregoing,
Lessor agrees that relocation or temporary removal shall not be required more than one (1) time
during any five (5) year period unless required in the event of an emergency.
19. Insurance
The City of Tukwila is a member of WCIA which was created by an interlocal agreement
among public entities. Through WCIA, liability is self-funded by the membership. As there is no
insurance policy involved and WCIA is not an insurance company, Lessor cannot be named as an
additional insured.
20. Indemnification and Waiver
A. Lessee hereby releases, covenants not to bring suit and agrees to indemnify, defend,
and hold harmless the Lessor, its , officials, officers, directors, employees, agents,
engineers, consultants, and representatives from any and all claims, costs,
judgments, awards, or liability to any person arising from injury, sickness, or death
of any person or damage to property:
(1)
For of which the negligent acts or omissions of Lessee, its agents, servants,
officers, or employees, and any party acting through Lessee in performing
the activities authorized by this Lease are the proximate cause;
(2) By virtue of Lessee's exercise of the rights granted herein and any breach of
this Lease by Lessee;
(3)
Lease
Page 7 of 21
By virtue of the Lessor's permitting Lessee's use of the property;
(4) Based upon the Lessor's inspection or lack of inspection of work performed
by Lessee, its agents and servants, officers, or employees in connection with
work authorized on the Telecommunications Facility or property over
which the Lessor has control, pursuant to this Lease or pursuant to any other
permit or approval issued in connection with this Lease;
Arising as a result of the negligent acts or omissions of Lessee, its agents,
servants, officers or employees in barricading, instituting trench safety
systems or providing other adequate warnings of any excavation,
construction, or work upon the Telecommunications Facility, in any public
way, or other public place in performance of work or services permitted
under this Lease; and
(5)
(6) Based upon radio frequency emissions or radiation emitted from Lessee's
equipment located upon the Telecommunications Facility, regardless of
whether Lessee's equipment complies with applicable Law, federal statutes
and/or FCC regulations related thereto.
B. Lessee's indemnification obligations pursuant to Subsection A of this Section shall
include assuming potential liability for actions brought against the Lessor by
Lessee's own employees and the employees of Lessee's agents, representatives,
contractors, and subcontractors even though Lessee might be immune under Title
51 RCW from direct suit brought by such an employee. It is expressly agreed and
understood that this assumption of potential liability for actions brought by the
aforementioned employees is with respect to claims against the Lessor arising by
virtue of Lessee's exercise of the rights set forth in this Lease. The obligations of
Lessee under this Subsection B have been mutually negotiated by the parties hereto,
and Lessee acknowledges that the Lessor would not enter into this Lease without
Lessee's waiver thereof. To the extent required to provide this indemnification and
this indemnification only, Lessee waives its immunity under Title 51 RCW as
provided in RCW 4.24.115 solely for the benefit of giving effect to the
indemnification obligations in this Lease and not for the benefit of any third party.
C. Inspection or acceptance by the Lessor of any work performed by Lessee at the time
of completion of construction shall not be grounds for avoidance of any of these
covenants of indemnification. Provided that Lessee has been given prompt written
notice by the Lessor of any such claim, said indemnification obligations shall also
extend to claims which are not reduced to a suit and any claims which may be
compromised prior to the culmination of any litigation or the institution of any
litigation. In the event any action or proceeding shall be brought against the
Lessor's resulting from Lessee's operations hereunder, Lessee shall, at Lessee's
sole cost and expense, resist and defend the same provided, however, that Lessee
shall not admit liability in any such matter on behalf of the Lessor without the
written consent of the Lessor. Nothing herein shall be deemed to prevent Lessor
from cooperating with Lessee and participating in the defense of any litigation with
Lessor's own counsel. Lessee shall pay all reasonable expenses incurred by Lessor
in response to any such actions, suits, or proceedings. These expenses shall include
Lease
Page 8 of 21
all out-of-pocket expenses such as attorneys' fees and shall also include the
reasonable value of any services rendered, and the actual expenses of Lessor's
agents, employees, consultants and expert witnesses and disbursements and
liabilities incurred by Lessor's in connection with such suits, actions, or
proceedings. The Lessor has the right to defend or participate in the defense of any
such claim, and has the right to approve any settlement or other compromise of any
such claim.
D. In the event that Lessee refuses the tender of defense in any suit or any claim, said
tender having been made pursuant to this Section, and said refusal is subsequently
determined by a court having jurisdiction (or such other tribunal that the parties
shall agree to decide the matter), to have been a wrongful refusal on the part of
Lessee, then Lessee shall pay all of the Lessor's costs for defense of the action,
including all reasonable expert witness fees, reasonable attorneys' fees, the
reasonable costs of the Lessor's, and reasonable attorneys' fees of recovering under
this Subsection.
E. The obligations of Lessee under the indemnification provisions of this Section shall
apply regardless of whether liability for damages arising out of bodily injury to
persons or damages to property were caused or contributed to by the concurrent
negligence of the Lessor, its officers, agents, employees, or contractors. The
provisions of this Section, however, are not to be construed to require the Lessee to
hold harmless, defend or indemnify the Lessor as to any claim, demand, suit, or
action which arises out of the sole negligence or misconduct of the Lessor or its
employees, contractors, agents, tenants, representatives, or invitees. In the event
that a court of competent jurisdiction determines that this Lease is subject to the
provisions of RCW 4.24.115, the parties agree that the indemnity provisions
hereunder shall be deemed amended to provide that the Lessee's obligation to
indemnify the Lessor hereunder shall extend only to the extent of Lessee's
negligence.
F. Notwithstanding any other provisions of this Section, Lessee assumes the risk of
damage to its Telecommunications Facilities, including any Equipment, located in
the public ways and upon Lessor -owned property from activities conducted by the
Lessor, its officers, agents, employees, and contractors, except to the extent any
such damage or destruction is caused by or arises from the sole negligence, any
willful or malicious action on the part of the Lessor, its officers, agents, employees,
representatives, or contractors. Lessee releases and waives any and all such claims
against the Lessor, its officers, agents, employees, and contractors. Lessee further
agrees to indemnify, hold harmless and defend the Lessor against any claims for
damages, including, but not limited to, business interruption damages and lost
profits, brought by or under users of Lessee's facilities as the result of any
interruption of service due to damage or destruction of Lessee's facilities caused by
or arising out of activities conducted by the Lessor, its officers, agents, employees
or contractors, except to the extent any such damage or destruction is caused by or
arises from the sole negligence or any willful or malicious actions on the part of the
Lessor, its officers, agents, employees, representatives, or contractors.
Lease
Page 9 of 21
G. The provisions of this Section shall survive the expiration, revocation, or
termination of this Lease.
21. Covenant Not to Bring Suit
The rents, fees, and other in-kind compensation, if any, provided for in this Lease are a
result of mutual negotiations between the parties. Lessee acknowledges and covenants not to bring
suit with respect to the amount of said rents, fees or in-kind compensation seeking to recover all
or any portion of the same, and hereby waives any and all such claims against the Lessor and its
officers, directors, employees and agents from any and all claims solely related to payment of
rents, fees and/or in-kind services provided for under this Lease.
22. Holdover
Within ninety (90) days after this Lease expires, or is revoked or terminated for any cause,
Lessee shall remove the Telecommunication Facilities and Equipment from the Premises and
Property. If Lessee shall, with the written consent of the Lessor, holdover after the expiration of
the term of this Lease, the holdover tenancy shall be on a month-to-month basis, which tenancy
may be terminated by the provision of thirty (30) days advance written notice by the party seeking
termination of the tenancy to the other party. During such tenancy, Lessee agrees to pay the Lessor
$12.00 per annum, prorated on a monthly basis, and further agrees to be bound by all of the terms,
covenants, agreements, and conditions as herein specified, so far as applicable.
23. Revocation, Forfeiture, and Termination
The rights granted under this Lease may be revoked or forfeited if Lessee fails to cure the
breach within thirty (30) days after receipt of written notice from Lessor and such period will be
extended so long as Lessee commences to cure the default and diligently pursues to completion.
Provided that the Lessor may elect in lieu of the above and without any prejudice to any of its other
legal rights and remedies, to obtain an order from the superior court having jurisdiction compelling
the Lessee to comply with the provisions of this Lease and to recover reasonable damages, rent,
attorney and collection fees, court costs, attorney's fees upon appeal of any judgment or ruling,
and other costs and expenses incurred by the Lessor by reason of the Lessee's failure to comply.
No re-entry and taking of possession of the Premises by the Lessor shall be construed as an election
on Lessor's part to terminate this Lease, regardless of the extent of renovations and alterations by
Lessor, unless a written notice of such intention is given to Lessee by Lessor. Notwithstanding
any re -letting without termination, Lessor may at any time thereafter elect to terminate this Lease
for such previous breach.
24. Non -Release of Obligations upon Termination
No termination, default, forfeiture, or cancellation of this Lease shall release Lessee from
any liability or obligation with respect to any matter occurring prior to such termination, default,
forfeiture or cancellation, nor shall termination, default, forfeiture or cancellation release Lessee
from its obligation and liability as described in Section 4 and Section 25 herein to remove its
facilities and equipment and restore the Premises and Property to its original condition ordinary
wear and tear and damage from casualty excepted.
Lease
Page 10 of 21
25. Lessor's Removal of Lessee's Property
In the event that this Lease is revoked, forfeited, or otherwise terminated and Lessee fails
to remove its improvements from the Premises or (if permitted under this Lease, the other parts of
the Property) within ninety (90) days thereafter, the Lessor shall have the right, but not the
obligation, after giving thirty (30) days' notice to Lessee, to remove therefrom all of the
Telecommunication Facilities, and may store the same in any place selected by the Lessor,
including, but not limited to, a public warehouse at the expense and risk of Lessee. If the Lessor
removes the Telecommunication Facilities as provided under this Section, it shall immediately
provide Lessee written notice of such removal and notice of Lessee's right to redeem the property
after payment of any sums due the Lessor, including the Lessor's costs of removal and storage. If
within thirty (30) days of such written notice Lessee does not redeem the property, the Lessor shall
have the right to sell such stored property. If such property is sold as provided herein, the proceeds
of such sale shall be applied first to the cost of the sale, second to the payment of the charges for
storage, if any, and third to the payment of any other sums of money which may then be due from
Lessee to the Lessor under any terms hereof. The balance, if any, shall be paid to Lessee.
26. Fire and Other Casualty
In the event the Premises or any portion Property is destroyed or damaged by fire,
earthquake, or other casualty to such an extent as to render the same untenable by Lessee in whole
or in a substantial part, Lessee and Lessor shall have the option to terminate the Lease immediately
without further liability for rents due hereunder. If Lessee chooses to terminate this Lease as
provided in this Section, Lessee shall be entitled to a refund of any prepaid rent for the applicable
Lease term, less the portion of the rent, prorated daily, that represents the amount of the term that
has expired prior to termination of the Lease by Lessee. The Lessor shall have no obligation to
repair any damage to any portion of the Telecommunications Facility.
27. Condemnation
In the event of the taking of the Premises or any portion Property is by condemnation or
otherwise by any governmental, state, or local authority, this Lease shall be deemed cancelled as
of the time of taking possession by said authority. Lessee shall have no claim to nor shall be
entitled to any portion of any condemnation or other award for damages to the Premises or
Property. However, Lessee shall have the right to pursue its own separate award from the
condemning authority so long as such claim or award does not diminish Lessor's award.
28. Modification, Waiver
No waiver, alteration, amendment, or modification of any of the provisions of this Lease
shall be binding unless in writing and signed by duly authorized representatives of both parties.
29. Assignment
Subject to the provisions in this Section 29, this Lease shall run with the Property and shall
be binding on and inure to the benefit of the parties, their respective successors, personal
representatives and permitted assigns. Lessee will not assign or transfer this Lease or sublet all or
any portion of the Premises without the prior written consent from the Lessor, which consent may
Lease
Page 11 of 21
be withheld or conditioned in Lessor's sole discretion. For avoidance of doubt, Lessor may inquire
into the qualifications and financial stability of a potential assignee or sublessee and reasonably
request any information related to such inquiry and may also condition such approval upon the
financial, legal and technical expertise of a proposed assignee or sublessee and upon the resolution
of any compliance obligation under the Lease. The terms and conditions of this Lease shall be
binding on any sublessee or assignee. In the event of a sublease, the Lessor shall be entitled to
forty percent (40%) of any revenue received by Lessee from any sublessee ("Sublessee Rent")
which shall be payable to the Lessor within thirty (30) days after receipt by the Lessee. This
Sublessee Rent is in addition to the Annual rent paid by the Lessee to the Lessor.
30. Non -Waiver of Breach
The failure of the Lessor to insist upon strict performance of any of the covenants and
agreements of this Lease, or to exercise any option herein conferred in any one or more instances,
shall not be construed to be a waiver or relinquishment of any such covenant, agreement or option,
or any other covenant, agreement, or option.
31. Cancellation of Prior Leases and Agreements
This Lease supersedes all previous leases and agreements between the parties with respect
to the subject matter hereof, and any such agreements are hereby cancelled.
32. Notice
Any notice or information required or permitted to be given to the parties under this Lease
may be sent to the below found e-mail addresses, unless otherwise specified. If notice is required
to be in writing, the notice will be effective on the earlier of personal delivery, or five (5) days
after being sent, to the following, unless otherwise specified in here:
If to the Lessor: Eric Compton
Eric.Compton@TukwilaWA.gov
If to the Lessee:
Lachlan Foss
lfoss@bellwetherhousing.org
33. Attorneys' Fees
If a suit or other action is instituted in connection with any controversy arising out of this
Lease, the substantially prevailing party shall be entitled to recover all of its costs and expenses,
including such sum as the court may judge reasonable for attorneys' fees, costs, expenses, and
attorney's fees upon appeal of any judgment or ruling.
Lease
Page 12 of 21
34. Restoration of Property
Lessee shall, after installation, construction, relocation, maintenance, removal, or repair of
the Telecommunications Facilities restore any other public and private property improvements,
fixtures, structures, facilities, rights-of-way and Lessor -owned property, including the Property,
which may be disturbed or damaged by the work, to at least the same condition immediately prior
to any such installation, construction, relocation, maintenance, removal or repair, reasonable wear
and tear and damage from casualty excepted. The Lessor or their respective designee shall have
final approval of the condition of such property after restoration. All survey monuments which
are to be disturbed or displaced by such work shall be referenced, replaced, and restored, as per
WAC 332-120, as the same now exists or may hereafter be amended, and per all pertinent federal,
state, and local standards and specifications. The provisions of this Section shall survive the
expiration, revocation, or termination by other means of this Lease.
35. Non -Severability
Each term and condition of this Lease is an integral part of the consideration given by each
party and as such, the terms and conditions of this Lease are not severable. If any section, sentence,
clause, or phrase of this Lease should be held to be invalid or unconstitutional by a court of
competent jurisdiction, this Lease shall terminate unless suitable replacement terms can be agreed
to by the parties.
36. Merger
Except for the terms and conditions of applicable and future laws, ordinances, rules,
regulations and other City land use approvals, authorizations or permits or related
communications, this Lease constitutes the entire understanding and agreement between the parties
as to the subject matter herein and no other agreements or understandings, written or otherwise,
shall be binding upon the parties upon execution of this Lease.
37. Hazardous Substances
Lessee shall not introduce or use any substance, chemical, or waste on the leased Premises
that is identified as hazardous, toxic, or dangerous in any federal, state, or local environmental or
safety Law or regulation (collectively, "Hazardous Substance") on the leased Premises or Property
in violation of any applicable Law or regulation, nor shall Lessee allow any of its agents,
contractors, or any other person under its control to do the same.
Lessee will be solely responsible for and will defend, indemnify, and hold the Lessor, its
agents, and employees harmless from and against any and all direct claims, costs, and liabilities
including reasonable attorneys' fees and costs, arising out of or in connection with the cleanup or
restoration of the Property associated with Lessee's use, storage, or disposal of Hazardous
Substances or the use, storage, or disposal of such substances by Lessee's agents, contractors, or
other persons acting under Lessee's control.
The Lessor will be solely responsible for and will defend, indemnify, and hold Lessee, its
agents, and employees harmless from and against any and all direct claims, costs, and liabilities,
Lease
Page 13 of 21
including reasonable attorneys' fees and costs arising out of or in connection with the removal,
cleanup, or restoration of the property associated with the Lessor's use of Hazardous Substances.
38. Miscellaneous.
A. Lessor and Lessee respectively represent that its signatory is duly authorized and
has full right, power, and authority to execute this Lease.
B. This Lease shall be construed in accordance with the laws of the State of
Washington. Venue for any dispute related to this Franchise shall be the United
States District Court for the Western District of Washington, or King County
Superior Court.
C. Section captions and headings are intended solely to facilitate the reading thereof.
Such captions and headings shall not affect the meaning or interpretation of the text
herein.
D. Where the context so requires, the singular shall include the plural and the plural
includes the singular.
B. If the methods of taxation in effect at the commencement date of the Lease are
altered so that in lieu of or as a substitute for or in addition to any portion of the
property taxes and special assessments, if any, now imposed on equipment, there is
imposed a tax upon or against the rentals payable by Lessee to Lessor, Lessee shall
also pay those amounts.
F. Lessee shall be responsible for obtaining all other necessary approvals,
authorizations and agreements from any party or entity and it is acknowledged and
agreed that the Lessor is making no representation, warranty, or covenant whether
any of the foregoing approvals, authorizations or agreements are required or have
been obtained by Lessee from any person or entity.
G. This Lease may be enforced at both law and equity.
H. This Lease may be executed in duplicate counterparts, each of which shall be
deemed an original. Signed, scanned, and emailed copy and electronic copies of
this Amendment shall legally bind the parties to the same extent as original
documents.
I. There are no third -party beneficiaries to this Lease.
J. All exhibits annexed hereto form material parts of this Lease.
K. Lessee acknowledges that it, and not the Lessor, shall be responsible for the
Premises and Telecommunication Facilities compliance with all marking and
lighting requirements of the Federal Aviation Administration ("FAA") and the
Federal Communications Commission ("FCC") along with compliance with all
Laws. Lessee shall indemnify, defend, and hold the Lessor harmless from any fines
Lease
Page 14 of 21
or other liabilities caused by Lessee's failure to comply with such requirements.
Should the Lessee or the Lessor be cited by the FCC, FAA, or any other governing
body because the Telecommunication Facilities are not in compliance with the
foregoing, and should Lessee fail to cure the conditions or noncompliance within
the timeframe allowed by the citing agency, and fails to cure within thirty (30) days
after receipt of written notice, then the Lessor may either terminate this Lease
immediately on notice to Lessee or proceed to cure the conditions of
noncompliance at Lessee's expense.
[SIGNATURES ON FOLLOWING PAGE(S)]
Lease
Page 15 of 21
IN WITNESS WHEREOF, this Lease is executed as of the latest date it is fully executed
by both parties.
CITY OF TUKWILA,
a Washington municipal corporation
By:
City of Tukwila, Mayor
Date: i
Lease
Page 16 of 21
Bellwether Tukwila LLLP, a
Washington limited liability limited
partnership
By: Bellwether Tukwila GP LLC, a
Washington limited liability company, its
General Partner
By: B
nonprofit
By:
Name: oyd
Its: Chief Executive Officer
I ousi g, a Washington
n, its ana:er
Date:
STATE OF WASHINGTON
) ss.
COUNTY OF KING
I certify that I know or have satisfactory evidence that ;.•. l/4't'l � e v is the
person who appeared before me, and that & acknowledged that she signed this instrument, on
oath stated that swas authorized to execute the instrument and acknowledged it as the Mayor of
the City of Tukwila to be the free and voluntary act of such party for the uses and purposes
mentioned in the instrument.
fr
Dated this �f G'( day ofC'be-
20 a3
Notly,,,S 1,
`,���.0°0-IRAN ''%a,
NOTARY
N r PUBLIC tig
-' � S(E9.N EXP\:,?••',..,°,0,.•
Lease
Page 17 of 21
Notary Signature:
Printed Name: /--)ao n Le
Notary Public for the State of Washington
Residing In:
My Commission Expires: /0 -- 7c/ —2'.5
STATE OF WuSintr\Q6r\
COUNTY OF Vt r
) ss.
I certify that I know or have satisfactory evidence that SuScq, Q0 id is the
person who appeared before me, and said person acknowledged that (he/she) signed this instrument,
on oath stated that (he/she) was authorized to execute the instrument and acknowledged it as
the (±0 of the free and voluntary act of such party for the uses and purposes mentioned
in the instrument.
Dated this
2
day of Sep M�er-
.400 04%2�G
i c. NOTARY 40
(1.3.1.. ' AUBL�G tQ
F•WAS0•••,.
Lease
Page 18 of 21
, 20 L3.
Notary Signature:
Printed Name:
Notary Public for the State of
Residing In:
My Commission Expires:
/v; UAoliks Ma U2
I.J1.5 ti iny'h-h
3/)/u)22l
EXHIBIT A
Legal Description
ADAMS HOME TRS 3RD ADD PER TUKWILA BLA# L19-0111 REC#
20200311900005 SD BLA LOC IN LOTS 7 & 8 OF BLK 2 OF SD ADD TAXABLE POR
PER RCW 84.36.560 DOR# 10032-030
Plat Block: 2
Plat Lot: 7-8
Lease
Page 19 of 21
17,
EXHIBIT B
DEPICTION OF PREMISES
PROPOSED PEDESUTED-,
glink SVIRELOS ANIENMS
411UFF fV211.'r TOP -U2.0.4
PDMPUSE
PRoPOSED FATED-
0
*RU PANEL NOM.
Mgr ZCITtlac..s.F
NON-PENETPATI. ROGROP
SUM
PROPOSED FEDERATED RIPEIMS \
PMfl mad,. imt.3101-41-442
n'OrAL ,)
ROOM,
1r117"
LI I I L.1 1
r
I 1
rl
BEIR177
ELEV. 74 --a k
\ MEMEL TARRE;04WES,
LJ
-L• I "" —
- I II IT Iti-1111' H Ttt-1 t
`-PROPOSEO NOG.
ENCLOSURE *INN
MTN° ELECTRKA. POO,.
LELow Rocf Mtn.
.LLL
llI_,
ft
PROPOSED FEDERATED WIRELESS-- \ 11\
PAM_ ANTENNAS #AW31 81 —M—F—T/2 \ '
(TOTAL OF 1) MOUNTED ON
PROPOSED NON—PENETRATING
ROOFTOP SLED
2
.,,,F,11,711'1*'11:;11.1s
r—PROPOSED FEDERATED FIRELESS
PANEL A/MINNA-5 #A51030 (ram.
OF 1) MOUNTED ON PROPOSED
NON—PENETRATING ROOFTOP SLED
PROPOS ED ELEC. coNourr ROUTED
ALDNG ROOF. FROM EXISTING
WEATIrER HEAD TO PROPOSED
ANTENNAS
EXISTING 0
DRAINS (TIP.)
EXISTING YACI —
ANTENNA., BY OTHERS
EXISTING
STAIRWELL
-1-1"174-d-1.36-
SCLAR
PANELS (TYP.)
— LTIN;;
AEATHERHEA
PROPOSED FEAT
0WIRELESS Ewa. ANTENNAS
.UBIOUIR AF -5 (IVTAL OF 2)
MOUNTED ON PROPOSED
NON—PENETRATING ROOFTOP
SLED
PROPOSED IN DOOR
ENCLOSURE WITHIN
EXISTING ELECTRICAL ROOM
BELOW ROOF LEFEL
; L., ::,T1 F --
E tl ELE ;T,H.
EL, A .:(`F LE. EL
Lease
Page 20 of 21
EXHIBIT C
Plan of Equipment
1 sector 65 deg antennas (2 antennas).
• Alpha Wireless antenna 65 deg "AW3782R1" (internal antenna of AS 1030 radio).
Alpha Wireless antenna 65 deg "AW3161" external antenna
• 4 ports antenna.
1 AS1030 radios.
• Site will be mounted on a SLED mount of the southeast corner of the building
Rad center 67 ft
r
1
z
0g
cc
Lu
LL
0LNc�uyGe:S
AF f (PIP)
.1030 R5.1,4 W6010U.9Wm
] 9.,. ID",. II.00'O
C xphprvS
t9./H . tl_0'W . 5.0�
.3.DD LDS
WEIGHT
IC c3D ,D.,3.10131
DUANTrtY
TOT, OF
C(33,337.
TM, CFI
01181 -1,1 -F -V2
8v
'_YUC t YK
]0811 . Itly . ]]'O
A�11
i0 d1 LDS
COMM,
Toru CF t
ANTENNA. SPECIFICATIONS
5''1 DNS.
ANTENNA SPECIFICATIONS
7
ANTENNA Si'ECIFICATIONS
3
-ML nl.o.
.GLL Nf,C.
(t
a� id7 F�YG'pIYU'
' J ,! ] �ll!'l,lGNHVtt�"l
H H 11 'H i UIi 3'III3I Y' Y
INC/.^IIIIrD
WINDOOR
f
W 1/ ,
FNCLMvWC
yy n
. e5
A g9
SAD LDS
�,F 4 'H
9{ u
101LL OF I
3,l <
li ilrl�llIINXIGIIIYiDifODDILDItiff ('1't d IBC' L �o
w
INPGOR ENCLOSURE SP E IFI.:ATIONS
q
ti -41£ D.33
^ � vM!1 ) �,
phP.VL z«Hrn s
�
ON -PAL svna0E9
oN5.5m
afill . r'3x.+gincrRm0133
sr.u.0 ,.5a
W5ut0
' I_ OF.
a.Nm. rcr.L CC 2
mr
TOPE of I
FI2yP G+—MO
�JA
•
IUQl91'>1[. H H15C 91' w5i
-I`NIII'� TM, CF I
SWITCH SPECIFICATIONS
5
SWITCH SPE IFICATIONS
g
SLED SPECIE 4TP7KS
7
Lease
Page 21 of 21