HomeMy WebLinkAbout052421_ca04 JEFFERSON COUNTY
BOARD OF COUNTY COMMISSIONERS
Consent Agenda Request
TO: Board of County Commissioners
FROM: Mark McCauley, Central Services Director
Philip Hunsucker, Chief Civil Deputy Prosecuting Attorney
DATE: May 24, 2021
RE: LAND LEASE AGREEMENT with Cellco Partnership dba Verizon Wireless(Verizon)to
install, repair, operate, upgrade, maintain and remove communications equipment
and antennae support structures at the Jefferson County Fairgrounds
STATEMENT OF ISSUE: Verizon contacted Jefferson County in 2020 seeking an agreement to
install a cellular telephone tower at the Jefferson County Fairgrounds in return for monthly
lease payments which would total $14,400 in the first year of the agreement and escalating 2.5
percent every year thereafter. The agreement has an initial term of five years with four five-
year extensions authorized.
ANALYSIS: Expanding internet service to county residents is in the County's interest. Studies
performed by Verizon show that this cellular tower installation will improve access to high
speed internet for those within range of the tower.
FISCAL IMPACT: This request will yield $14,400 in revenue to the County in year one,
increasing 2.5%every year thereafter. Of the $14,400 in additional revenue staff recommends
that half of that revenue be shared with the Jefferson County Fair Association through an
amendment to the community services grant agreement which will be forthcoming. Leasehold
excise tax of 12.84%of the lease payment will also be collected and remitted to the state.
RECOMMENDATION: That the Board of County Commissioners approve the attached LAND
LEASE AGREEMENT with Verizon.
REVIEWED BY:
Mark McCajey, Interim County Adi'ni istrator Date
LAND LEASE AGREEMENT
This Land Lease Agreement(this"Agreement")made this day of
202 ,between Jefferson County,with its principal offices located at 1820 Jefferson Street,Port Townsend,
Washington, hereinafter designated LESSOR, and Cellco Partnership d/b/a Verizon Wireless, with its
principal offices at One Verizon Way,Mail Stop 4AW100,Basking Ridge,New Jersey 07920,hereinafter
designated LESSEE.LESSOR and LESSEE are at times collectively referred to hereinafter as the"Parties"
or individually as the"Party."
WITNESSETH
In consideration of the mutual covenants contained herein and intending to be legally bound hereby,
the Parties hereto agree as follows:
1. GRANT.In accordance with this Agreement,LESSOR hereby grants to LESSEE the right
to install,repair,operate,upgrade,maintain and remove communications equipment and antennae support
structures("Use")upon the Premises(as hereinafter defined),which is a portion of that real property owned,
leased or controlled by LESSOR located at 4907 Landes Street,Port Townsend,County of Jefferson, State
of Washington 98368("Property"). Such use by LESSEE at the Property and the Premises shall be lawful
and in compliance with all applicable laws, orders, ordinances and regulations of federal, state, and local
authorities having jurisdiction. The Property is legally described on Exhibit"A"attached hereto and made
a part hereof. The "Premises" is approximately 450 square feet and is shown in detail on Exhibit `B"
attached hereto and made a part hereof. LESSEE may survey the Premises. Upon completion, the survey
shall replace Exhibit`B"in its entirety.
2. INITIAL TERM. This Agreement shall be effective as of the date of execution by both
Parties("Effective Date"). The initial term of this Agreement shall be for five (5)years beginning on the
Commencement Date (as hereinafter defined). The "Commencement Date" shall be the first day of the
month after LESSEE begins installation of LESSEE's communications equipment. The Parties agree to
acknowledge the Commencement Date in writing,including electronic mail.
3. EXTENSIONS. This Term of this Agreement (as herein defined) shall automatically be
extended for 4 additional 5 year terms, unless LESSEE gives LESSOR written notice of its intent to
terminate at least 3 months prior to the end of the then-current term.The initial term and all extensions shall
be collectively referred to herein as the"Term".
4. RENTAL.
a. Rental payments shall begin on the Commencement Date and be due at a total annual
rental of$14,400.00 for the first year of the initial term,to be paid in equal monthly installments on the first
day of the month,in advance,to LESSOR at Jefferson County Treasurer,P.O.Box 1220,Jefferson County,
Washington 98368 or to such other person,firm,or place as LESSOR may,from time to time,designate in
writing at least 30 days in advance of any rental payment due date by notice given in accordance with
Paragraph 20 of this Agreement. LESSOR and LESSEE acknowledge and agree that the initial rental
payment may not be delivered by LESSEE until at least 90 days after the Commencement Date. Upon
agreement of the Parties, LESSEE may pay rent by electronic funds transfer and, in such event, LESSOR
agrees to provide to LESSEE bank routing information for such purpose upon request of LESSEE.
b. For any party to whom rental payments are to be made, LESSOR or any successor in
interest of LESSOR hereby agrees to provide to LESSEE (i) a completed, current version of Internal
Revenue Service Form W-9, or equivalent; (ii) complete and fully executed state and local withholding
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forms if required; and(iii)other documentation to verify LESSOR's or such other party's right to receive
rental as is reasonably requested by LESSEE. Rental shall accrue in accordance with this Agreement,but
LESSEE may not deliver rental payments for up to 90 days after the requested documentation has been
received by LESSEE.
c. The annual rental for the second year of the initial term and for each year thereafter,
including any and all extension terms,shall be equal to 102.5%of the annual rental payable with respect to
the immediately preceding year.
5. ACCESS. LESSEE shall have the non-exclusive right of ingress and egress from a public
right-of-way, 7 days a week,24 hours a day,over the Property to and from the Premises for the purpose of
installation,operation and maintenance of LESSEE's communications equipment over or along a right-of-
way ("Easement"), which shall be depicted on Exhibit "B". For non-emergency maintenance and
construction, access shall be coordinated with the Jefferson County Fair Association, which manages the
Premises.LESSEE may use the Easement for the installation, operation and maintenance of wires,cables,
conduits, and pipes for all necessary electrical, telephone, fiber and other similar support services. In the
event it is necessary, LESSOR agrees to grant LESSEE or the service provider the right to install such
services on, through, over and/or under the Property, provided the location of such services shall be
reasonably approved by LESSOR. Notwithstanding anything to the contrary, the Premises shall include
such additional space sufficient for LESSEE's radio frequency signage and/or barricades as are necessary
to ensure LESSEE's compliance with Laws(as defined in Paragraph 27 of this Agreement).
6. CONDITION OF PROPERTY. LESSOR shall deliver the Premises to LESSEE in a
condition ready for LESSEE's Use and clean and free of debris. LESSOR represents and warrants to
LESSEE that as of the Effective Date,the Premises is(a)in compliance with all Laws;and(b)in compliance
with all EH&S Laws(as defined in Paragraph 24 of this Agreement).
7. IMPROVEMENTS.
a. The expense (including the costs of any necessary testing or modification of the use) to
install,repair, operate,upgrade,maintain,operate,and remove the equipment antennae support structures,
conduits,fencing and other screening,and other improvements shall be at LESSEE's sole cost and expense
and installation shall be at the discretion and option of LESSEE. However, LESSEE shall not make any
alterations, additions, or improvements in the Property or the Premises, which are not within its usual and
customary method of installation of the communication equipment, without first obtaining the consent of
LESSOR in writing, which consent for such method of installation shall not be unreasonably withheld,
conditioned or delayed.
b. LESSEE shall have the right to replace,repair,add or otherwise modify its communications
equipment,tower structure,antennas,conduits,fencing and other screening,or other improvements or any
portion thereof and the frequencies over which the communications equipment operates, at no additional
cost to LESSEE, whether or not any of the communications equipment, antennas, conduits or other
improvements are listed on any exhibit.
c. Notwithstanding anything contained in this Agreement to the contrary including but not
limited to Paragraph 7(a) above, LESSEE shall only be required to obtain LESSOR consent for
modifications that materially increase LESSEE's Premises.
d. LESSOR shall respond in writing to any LESSEE consent request within thirty(30)days
of receipt or LESSOR's consent shall be deemed granted, provided, any material modifications to the
Premises shall be memorialized by the Parties in writing.
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8. LESSOR is not entitled to a rent increase associated with any LESSEE modification unless
it is materially increasing its Premises, in which case, any rent increase shall be proportionate to the
additional space included in the Premises.
9. GOVERNMENT APPROVALS.LESSEE's Use is contingent upon LESSEE obtaining all
of the certificates,permits and other approvals(collectively"Government Approvals")that may be required
by any Federal,State or Local authorities(collectively"Government Entities")as well as a satisfactory soil
boring test,environmental studies,or any other due diligence LESSEE chooses that will permit LESSEE's
Use. LESSOR shall cooperate with LESSEE in its effort to obtain such approvals and shall take no action
which would adversely affect the status of the Property with respect to LESSEE's Use.
10. TERMINATION. LESSEE may, unless otherwise stated, immediately terminate this
Agreement upon written notice to LESSOR in the event that (i) any applications for such Government
Approvals should be finally rejected;(ii)any Government Approval issued to LESSEE is canceled,expires,
lapses or is otherwise withdrawn or terminated by any Government Entities; (iii)LESSEE determines that
such Government Approvals may not be obtained in a timely manner; (iv) LESSEE determines any
structural analysis is unsatisfactory;(v)LESSEE,in its sole discretion,determines the Use of the Premises
is obsolete or unnecessary;(vii)with 3 months prior notice to LESSOR,upon the annual anniversary of the
Commencement Date; or(viii)at any time before the Commencement Date for any reason or no reason in
LESSEE's sole discretion.
11. LIMITATION OF DAMAGES AND INDEMNIFICATION.
a. LESSOR shall not at any time be liable for injury or damage occurring to any person or
property from any cause whatsoever arising out of LESSEE's construction, maintenance, repair, use,
operation,condition or dismantling of the Premises or LESSEE'S equipment,except that LESSOR will be
liable to the extent that any such injury or damage is due to the negligence or intentional acts of LESSOR,
its employees,agents or independent contractors.
b. Subject to Paragraph 11 of this Agreement, each Party and/or its officers, officials,
employees, agents and volunteers (and their marital communities) and/or any successor and/or assignees
thereof,shall indemnify and hold harmless the other Party,and/or any successors and/or assignees thereof,
against(i)any and all claims of liability or loss from personal injury or property damage resulting from or
arising out of the negligence or willful misconduct of the indemnifying Party,its employees,contractors or
agents, except to the extent such claims or damages may be due to or caused by the negligence or willful
misconduct of the other Party, or its employees, contractors or agents, and(ii)reasonable attorney's fees,
expense, and defense costs incurred by the indemnified Party. Should a court of competent jurisdiction
determine that this Agreement 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 Parties,each Party shall be liable under this Paragraph to the extent of its fault or liability its officers,
officials, employees, agents and volunteers (and their marital communities) the Contractor's liability,
including the duty and cost to defend. The indemnified Party will provide the indemnifying Party with
prompt,written notice of any claim that is subject to the indemnification obligations in this Paragraph.The
indemnified Party will cooperate appropriately with the indemnifying Party in connection with the
indemnifying Party's defense of such claim. The indemnifying Party shall defend any indemnified Party,
at the indemnified Party's request,against any claim with counsel reasonably satisfactory to the indemnified
Party.The indemnifying Party shall not settle or compromise any such claim or consent to the entry of any
judgment without the prior written consent of each indemnified Party and without an unconditional release
of all claims by each claimant or plaintiff in favor of each indemnified Party. It is further specifically and
expressly understood that the indemnification provided in this Paragraph constitutes the Parties' waiver of
immunity under Industrial Insurance, Title 51 RCW, solely for the purposes of this indemnification. This
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waiver has been mutually negotiated by the Parties. All indemnification obligations shall survive the
termination or expiration of this Agreement.
12. INSURANCE. LESSEE shall maintain during the term of this Agreement the following
insurance policies and insurance provisions:
a. Commercial general liability on an occurrence form in the amount of
$2,000,000.00 for bodily injury and property damage per occurrence and$4,000,000.00 in the aggregate,
including premises-operations, contractual liability, personal and advertising injury and
products/completed operations on a form reasonably acceptable to Jefferson County Risk Management.
The commercial general liability insurance coverage shall contain no limitations on the scope of the
protection provided. LESSOR and its officers, officials, employees, and volunteers and the Jefferson
County Fair Association shall be included as additional insureds as their interest may appear under this
Agreement under this insurance policy.
b. "All-Risk" property insurance on a replacement cost basis insuring LESSEE's
property with no coinsurance requirement.
c. Worker's Compensation(Industrial Insurance).The Contractor shall maintain
workers' compensation insurance at its own expense,as required by Title 51 RCW, for the term of this
Agreement and shall provide evidence of coverage to Jefferson County Risk Management,upon request.
Worker's compensation insurance covering all employees in compliance with the statutory requirements
of the state(s)of operation and Employer's Liability with limits of$1,000,000 each
accident/disease/policy limit.
d. The Contractor expressly waives by mutual negotiation all immunity and
limitations on liability,with respect to the County,under any industrial insurance act,disability benefit
act,or other employee benefit act of any jurisdiction which would otherwise be applicable in the case of
such claim.
e. If the County incurs any costs to enforce the provisions of this subsection,all
cost and fees shall be recoverable from the Contractor.
f. Intentionally deleted.
g. Failure of LESSEE to take out or maintain any required insurance shall not relieve
LESSEE from any liability under this Agreement, nor shall the insurance requirements be construed to
conflict with or otherwise limit the obligations concerning indemnification of LESSOR.
h. LESSEE's insurers shall have no right of recovery or subrogation against
LESSOR, its officers, officials, employees and volunteers (and their marital communities), it being the
intention of the Parties that the LESSEES insurance policies so affected shall protect all the Parties and
shall be primary coverage for all losses covered by the above described insurance.
i. Insurance companies issuing LESSEE's insurance policy or policies shall have no
recourse against the LESSOR, its officers, officials, employees and volunteers (and their marital
communities)for payment of any premiums or for assessments under any form of insurance policy.
j. Any judgments for which LESSOR may be liable, in excess of insured amounts
required by this Agreement,or any portion thereof,may be withheld from payment due,or to become due,
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to LESSEE until LESSEE shall furnish additional security covering such judgment as may be determined
by LESSOR.
k. LESSEE shall make copies of all insurance policies specified in this Agreement
available for inspection at an office of the LESSEE within the State of Washington upon reasonable
notice of not less than seven business days.Upon completion of inspection no copies will be made
and all policies will be returned to LESSEE's corporate Risk Management Department.
1. Upon receipt of notice from its insurer(s), LESSEE shall provide LESSOR with
thirty(30) days' prior written notice of cancellation of any required insurance. Certificates of insurance
required by this Agreement shall reference the project name and agreement number and shall be mailed to
LESSOR at the following address: Jefferson County Risk Management, P.O. Box 1220, Port Townsend,
WA 98368.
m. LESSEE's commercial general liability insurance provisions shall be primary and
noncontributory with respect to any insurance or self-insurance programs covering LESSOR, its elected
and appointed officers,officials and employees.
n. Any failure to comply with reporting provisions of the insurance policies shall not
affect coverage provided to LESSOR, its officers, officials, employees and volunteers(and their marital
communities).
o. LESSEE'S commercial general liability insurance shall apply separately to each
insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's
liability.
p. LESSEE shall require all contractors and subcontractors to obtain and maintain
substantially the same coverage as required of LESSEE and shall furnish separate certificates.
q. LESSEE shall maintain all required insurance policies in force from the time
services commence until services are completed. Certificates of insurance and blanket additional insured
endorsements expiring before completion of services shall be promptly replaced by LESSEE.
r. LESSEE shall furnish LESSOR with properly executed certificates of insurance
that shall include: (i) The limits of coverage; (ii) The project name and agreement number to which it
applies;(iii)The certificate holder as Jefferson County, Washington and its elected officials,officers,and
employees with the address of Jefferson County Risk Management, P.O. Box 1220,Port Townsend,WA
98368.
13. LIMITATION OF LIABILITY. Except for indemnification pursuant to Paragraph 10 , or
a violation of law,neither Party shall be liable to the other,or any of their respective agents,representatives,
or employees for any lost revenue, lost profits, diminution in value of business, loss of technology, rights
or services, loss of data, or interruption or loss of use of service, incidental, punitive, indirect, special,.
trebled, enhanced or consequential damages, even if advised of the possibility of such damages, whether
such damages are claimed for breach of contract, tort(including negligence), strict liability or otherwise,
unless applicable law forbids a waiver of such damages.
14. INTERFERENCE.
a. LESSEE agrees that LESSEE will not cause interference that is measurable in accordance
with industry standards to LESSOR's equipment. LESSOR agrees that LESSOR and other occupants of
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the Property will not cause interference that is measurable in accordance with industry standards to the
then existing equipment of LESSEE.
b. Without limiting any other rights or remedies, if interference occurs and continues for a
period in excess of 48 hours following notice to the interfering party via telephone to LESSEE'S Network
Operations Center(at(800)621-2622)or to LESSOR at(360)385-9100,the interfering party shall or shall
require any other user to reduce power or cease operations of the interfering equipment until the
interference is cured.
c. The Parties acknowledge that there will not be an adequate remedy at law for
noncompliance with the provisions of this Paragraph and therefore the Parties shall have the right to
equitable remedies such as,without limitation, injunctive relief and specific performance.
15. COMPATABILITY WITH SURROUNDING LOCATION.
a. LESSEE shall develop a site plan for the initial installation of communications equipment
at the Premises to reduce the visual impact of the equipment and facilities that complies with applicable
FCC,FAA and City of Port Townsend requirements.
b. To the extent required by applicable Law(as hereinafter defined), due consideration shall
be given so that placement of towers, antenna, and personal wireless service facilities do not obstruct or
significantly diminish views.
c. No signals,lights or signs shall be permitted on towers unless required by the FCC or the
FAA or other applicable authority.
d. Any lighting used must cause the least disturbance to the surrounding views in compliance
with applicable Law. To the extent required by applicable Law,where there are residents located within a
distance which is 300 percent of the height of the tower,then dual mode lighting shall be requested from
the FAA.
16. REMOVAL AT END OF TERM.Upon expiration or within 90 days of earlier termination,
LESSEE shall remove LESSEE's communications equipment(except for footings below 3 feet depth)and
restore the Premises to its original condition, reasonable wear and tear and casualty damage excepted.
LESSOR agrees and acknowledges that the communications equipment shall remain the personal property
of LESSEE and LESSEE shall have the right to remove the same at any time during the Term,whether or
not said items are considered fixtures and attachments to real property under applicable laws. If such time
for removal causes LESSEE to remain on the Premises after termination of this Agreement, LESSEE shall
pay rent in accordance with Paragraph 16 of this Agreement.
17. HOLDOVER.If LESSEE holds over after the expiration or earlier termination of the Term,
then this Agreement shall continue on a month to month basis at the then existing monthly rental rate or the
existing monthly pro-rata basis if based upon a longer payment term, until the removal of the
communications equipment is completed.
18. RIGHT OF FIRST REFUSAL. If at any time after the Effective Date, LESSOR receives
an offer or letter of intent from any person or entity that is in the business of owning,managing or operating
communications facilities or is in the business of acquiring landlord interests in agreements relating to
communications facilities,to purchase fee title, an easement, a lease,a license,or any other interest in the
Premises or any portion thereof or to acquire any interest in this Agreement, or an option for any of the
foregoing, LESSOR shall provide written notice to LESSEE of said offer ("LESSOR's Notice").
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LESSOR's Notice shall include the prospective buyer's name,the purchase price being offered,any other
consideration being offered,the other terms and conditions of the offer,a description of the portion of and
interest in the Premises and/or this Agreement which will be conveyed in the proposed transaction, and a
copy of any letters of intent or form agreements presented to LESSOR by the third party offeror. LESSEE
shall have the right of first refusal to meet any bona fide offer of sale or transfer on the terms and conditions
of such offer or by effectuating a transaction with substantially equivalent financial terms. If LESSEE fails
to provide written notice to LESSOR that LESSEE intends to meet such bona fide offer within 30 days
after receipt of LESSOR's Notice,LESSOR may proceed with the proposed transaction in accordance with
the terms and conditions of such third party offer,in which event this Agreement shall continue in full force
and effect and the right of first refusal described in this Paragraph shall survive any such conveyance to a
third party. If LESSEE provides LESSOR with notice of LESSEE's intention to meet the third party offer
within 60 days after receipt of LESSOR's Notice, then if LESSOR's Notice describes a transaction
involving greater space than the Premises, LESSEE may elect to proceed with a transaction covering only
the Premises and the purchase price shall be prorated on a square footage basis. Further, LESSOR
acknowledges and agrees that if LESSEE exercises this right of first refusal, LESSEE may require a
reasonable period of time to conduct due diligence and effectuate-the closing of a transaction on
substantially equivalent financial terms of the third-party offer. LESSEE may elect to amend this
Agreement to effectuate the proposed financial terms of the third party offer rather than acquiring fee simple
title or an easement interest in the Premises.For purposes of this Paragraph,any transfer,bequest or devise
of LESSOR's interest in the Property as a result of the death of LESSOR, whether by will or intestate
succession,or any conveyance to LESSOR's family members by direct conveyance or by conveyance to a
trust for the benefit of family members shall not be considered a sale for which LESSEE has any right of
first refusal.
19. RIGHTS UPON SALE. Should LESSOR, at any time during the Term, decide (i)to sell
or otherwise transfer all or any part of the Property, or(ii)to grant to a third party by easement or other
legal instrument an interest in and to any portion of the Premises,such sale,transfer,or grant of an easement
or interest therein shall be under and subject to this Agreement and any such purchaser or transferee shall
recognize LESSEE's rights hereunder.In the event that LESSOR completes any such sale,transfer,or grant
described in this Paragraph without executing an assignment of this Agreement whereby the third party
agrees in writing to assume all obligations of LESSOR under this Agreement,then LESSOR shall not be
released from its obligations to LESSEE under this Agreement,and LESSEE shall have the right to look to
LESSOR and the third party for the full performance of this Agreement.
20. LESSOR'S TITLE. LESSOR covenants that LESSEE,on paying the rent and performing
. _ the covenants herein, shall peaceably and quietly have, hold and enjoy the Premises. LESSOR represents
and warrants to LESSEE as of the Effective Date and covenants during the Term that LESSOR has full
authority to enter into and execute this Agreement and that there are no liens, judgments, covenants,
easements,restrictions or other impediments of title that will adversely affect LESSEE's Use.
21. ASSIGNMENT. Without any approval or consent of the other Party,this Agreement may
be sold, assigned or transferred by either Party to (i) any entity in which the Party directly or indirectly
holds an equity or similar interest; (ii) any entity which directly or indirectly holds an equity or similar
interest in the Party;or(iii)any entity directly or indirectly under common control with the Party.LESSEE
may assign this Agreement to any entity which acquires all or substantially all of LESSEE's assets in the
market defined by the FCC in which the Property is located by reason of a merger, acquisition or other
business reorganization without approval or consent of LESSOR.As to other parties,this Agreement may
not be sold,assigned or transferred without the written consent of the other Party,which such consent will
not be unreasonably withheld, delayed or conditioned.No change of stock ownership,partnership interest
or control of LESSEE or transfer upon partnership or corporate dissolution of either Party shall constitute
an assignment hereunder. LESSEE may sublet the Premises in LESSEE's sole discretion, provided any
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sublessor shall be required to fully comply with the terms and conditions of this Agreement and LESSOR
shall be made a third-party beneficiary of any such sublease agreement.
22. NOTICES.Except for notices permitted via telephone in accordance with Paragraph 13 of
this Agreement, or via electronic mail in accordance with Paragraph 2 of this Agreement, all notices
hereunder must be in writing and shall be deemed validly given if sent by certified mail, return receipt
requested or by commercial courier,provided the courier's regular business is delivery service and provided
further that it guarantees delivery to the addressee by the end of the next business day following the courier's
receipt from the sender,addressed as follows (or any other address that the Party to be notified may have
designated to the sender by like notice):
LESSOR: Jefferson County
Director,Central Services Department
Jefferson County
P.O. Box 1220
Port Townsend,WA 98368
LESSEE: Cellco Partnership d/b/a Verizon Wireless
180 Washington Valley Road
Bedminster,New Jersey 07921
Attention:Network Real Estate
Notice shall be effective on the earlier of(i) actual receipt or refusal as shown on the receipt obtained
pursuant to the foregoing or(ii)three(3)business days after the notice is deposited in the mail.
23. DEFAULT. It is a "Default" if(i) either Party fails to comply with this Agreement and
does not remedy the failure within 30 days after written notice by the other Party or, if the failure cannot
reasonably be remedied in such time, if the failing Party does not commence a remedy within the allotted
30 days and diligently pursue the cure to completion within 90 days after the initial written notice, or(ii)
LESSOR fails to comply with this Agreement and the failure interferes with LESSEE's Use and LESSOR
does not remedy the failure within 5 days after written notice from LESSEE or, if the failure cannot
reasonably be remedied in such time, if LESSOR does not commence a remedy within the allotted 5 days
and diligently pursue the cure to completion within 15 days after the initial written notice.The cure periods
set forth in this Paragraph do not extend the period of time in which either Party has to cure interference
pursuant to Paragraph 13 of this Agreement.
24. REMEDIES. In the event of a Default, without limiting the non-defaulting Party in the
exercise of any right or remedy which the non-defaulting Party may have by reason of such default, the
non-defaulting Party may terminate this Agreement and/or pursue any remedy now or hereafter available
to the non-defaulting Party.Further,upon a Default,the non-defaulting Party may at its option(but without
obligation to do so),perform the defaulting Party's duty or obligation. The costs and expenses of any such
performance by the non-defaulting Party shall be due and payable by the defaulting Party upon invoice
therefor. If LESSEE undertakes any such performance on LESSOR's behalf and LESSOR does not pay
LESSEE the full amount within 30 days of its receipt of an invoice setting forth the amount due, LESSEE
may offset the full amount due against all fees due and owing to LESSOR under this Agreement until the
full amount is fully reimbursed to LESSEE.
25. ENVIRONMENTAL. LESSEE shall conduct its business in compliance with all
applicable laws governing the protection of the environment or employee health and safety ("EH&S
Laws").LESSEE shall indemnify and hold harmless the LESSOR from claims to the extent resulting from
LESSEE's violation of any applicable EH&S Laws or to the extent that LESSEE causes a release of any
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regulated substance to the environment. LESSOR shall indemnify and hold harmless LESSEE from all
claims resulting from the violation of any applicable EH&S Laws or a release of any regulated substance
to the environment except to the extent resulting from the activities of LESSEE.The Parties recognize that
LESSEE is only leasing a small portion of the Property and that LESSEE shall not be responsible for any
environmental condition or issue except to the extent resulting from LESSEE's specific activities and
responsibilities. In the event that LESSEE encounters any hazardous substances that do not result from its
activities, LESSEE may relocate its facilities to avoid such hazardous substances to a mutually agreeable
location or,if LESSEE desires to remove at its own cost all or some the hazardous substances or materials
(such as soil)containing those hazardous substances,LESSOR agrees to sign any necessary waste manifest
associated with the removal,transportation and/or disposal of such substances.
26. CASUALTY. If a fire or other casualty damages the Property or the Premises and impairs
LESSEE's Use, rent shall abate until LESSEE'S Use is restored. If LESSEE's Use is not restored within
45 days,LESSEE may terminate this Agreement.
27. CONDEMNATION. If a condemnation of any portion of the Property or Premises impairs
LESSEE's Use,LESSEE may terminate this Agreement. LESSEE may on its own behalf make a claim in
any condemnation proceeding involving the Premises for losses related to LESSEE's communications
equipment, relocation costs and, specifically excluding loss of LESSEE's leasehold interest, any other
damages LESSEE may incur as a result of any such condemnation.
28. BANKRUPTCY.
a. LESSOR and LESSEE hereby expressly agree and acknowledge that it is the intention of
both Parties that in the event that during the term of this Agreement if LESSEE becomes a debtor in any
voluntary or involuntary bankruptcy proceeding("Proceeding")under the United States Bankruptcy Code,
11 U.S.C. 101, et seq. ("Code"),this Agreement is and shall be treated for all purposes and considered for
all intents as an unexpired lease of nonresidential real property for purposes of Section 365 of the Code, 11
U.S.C. §365(as may be amended),and,accordingly,will be subject to the provisions of subsections(d)(3)
and(d)(4)of said Section 365 (as may be amended).
b. Any person or entity to which this Agreement is assigned pursuant to the provisions of the
Bankruptcy Code, 11 USC § § 101, et seq.,will be deemed without further act to have assumed all of the
obligations of LESSEE arising under this Agreement both before and after the date of such assignment.
Any such assignee shall, upon demand, execute and deliver to LESSOR an instrument confirming such
assumption. Any monies or other considerations payable or otherwise to be delivered in connection with
such assignment shall be paid to LESSOR, will be the exclusive property of LESSOR, and shall not
constitute property of LESSEE or of the estate of LESSEE within the meaning of the Bankruptcy Code.
Any monies or other considerations constituting LESSOR's property under the preceding sentence,not paid
or delivered to LESSOR,shall be held in trust for the benefit of LESSOR and be promptly paid to LESSOR.
29. COMPLIANCE WITH ALL APPLICABLE LAWS. During the Term, LESSOR shall
maintain the Property in compliance with all applicable laws, EH&S Laws,rules,regulations,ordinances,
directives, covenants, easements, consent decrees, zoning and land use regulations, and restrictions of
record,permits,building codes,and the requirements of any applicable fire insurance underwriter or rating
bureau,now in effect or which may hereafter come into effect(including,without limitation,the Americans
with Disabilities Act and laws regulating hazardous substances) (collectively "Laws"). LESSEE shall, in
respect to the condition of the Premises and at LESSEE's sole cost and expense, comply with(i)all Laws
relating solely to LESSEE's specific and unique nature of use of the Premises; and(ii) all building codes
requiring modifications to the Premises due to the improvements being made by LESSEE in the Premises.
It shall be LESSOR's obligation to comply with all Laws relating to the Property,without regard to specific
9
WAl JEFFERSON FAIRGROUNDS
4848-8054-5980,v.1
use (including, without limitation, modifications required to enable LESSEE to obtain all necessary
building permits).
30. TAXES.
a. LESSOR shall invoice and LESSEE shall pay any applicable transaction tax (including
sales, use, gross receipts, or excise tax) imposed on the LESSEE and required to be collected by the
LESSOR based on any service, rental space, or equipment provided by the LESSOR to the LESSEE.
LESSEE shall pay all personal property taxes, fees, assessments, or other taxes and charges imposed by
any Government Entity that are imposed on the LESSEE and required to be paid by the LESSEE that are
directly attributable to the LESSEE's equipment or LESSEE's use and occupancy of the Premises.Payment
shall be made by LESSEE within 60 days after presentation of a received bill and/or assessment notice
which is the basis for such taxes or charges. LESSOR shall pay all ad valorem, personal property, real
estate, sales and use taxes, fees, assessments or other taxes or charges that are attributable to LESSOR's
Property or any portion thereof imposed by any Government Entity.
b. LESSEE shall have the right, at its sole option and at its sole cost and expense,to appeal,
challenge or seek modification of any tax assessment or billing for which LESSEE is wholly or partly
responsible for payment.LESSOR shall reasonably cooperate with LESSEE at LESSEE's expense in filing,
prosecuting and perfecting any appeal or challenge to taxes as set forth in the preceding sentence,including
but not limited to, executing any consent, appeal or other similar document. In the event that as a result of
any appeal or challenge by LESSEE,there is a reduction,credit or repayment received by the LESSOR for
any taxes previously paid by LESSEE, LESSOR agrees to promptly reimburse to LESSEE the amount of
said reduction,credit or repayment. In the event that LESSEE does not have the standing rights to pursue a
good faith and reasonable dispute of any taxes under this Paragraph, LESSOR will pursue such dispute at
LESSEE's sole cost and expense upon written request of LESSEE.
31. UTILITIES FOR THE PREMISES. LESSEE shall have the right, at its sole cost and
expense,to obtain electrical and telephone service from any utility company that provides such services to
the Property, and shall timely pay for all its utility charges and costs. LESSEE shall arrange for the
installation of a separate meter and main breaker for the Premises.
32. MISCELLANEOUS.
a. This Agreement contains all agreements, promises and understandings between the
LESSOR and the LESSEE regarding this transaction, and no oral agreement, promises or understandings
shall be binding upon either the LESSOR or the LESSEE in any dispute,controversy or proceeding.
b. This Agreement may not be amended or varied except in a writing signed by all Parties.
This Agreement shall extend to and bind the heirs,personal representatives,successors and assigns hereto.
c. The failure of either party to insist upon strict performance of any of the terms or conditions
of this Agreement or to exercise any of its rights hereunder shall not waive such rights and such party shall
have the right to enforce such rights at any time.
d. Except as expressly set forth in this Agreement, nothing in this Agreement shall grant,
suggest or imply any authority for one Party to use the name,trademarks, service marks or trade names of
the other for any purpose whatsoever.
e. LESSOR agrees to execute a Memorandum of this Agreement which LESSEE may record
with the appropriate recording officer.
10
WA1 JEFFERSON FAIRGROUNDS
4848-8054-5980,v.1
f. Time is of the essence for this Agreement.
g. If any provision of this Agreement or the application of this Agreement to any person or
circumstance shall be invalid, illegal,or unenforceable to any extent,the remainder of this Agreement and
the application of this Agreement shall not be affected thereby,and each term,covenant or condition of this
Agreement shall be valid and enforceable to the fullest extent permitted by law.
h. Except as specifically provided in this Agreement, the Parties do not intend, and nothing
in this Agreement shall be construed to mean,that any provision in this Agreement is for the benefit of any
person or entity who is not a party.
i. The Parties agree that electronic signatures shall have the same force and effect as original
signatures.
j. The Parties agree that this Agreement has been negotiated at arms-length, with the
assistance and advice of competent,independent legal counsel.
k. LESSOR is a public agency under the Washington Public Records Act, Chapter 42.56
RCW,as may be amended("PRA").Notwithstanding any provisions of this Agreement to the contrary,to
the extent any record,including any electronic,audio,paper or other media,is required to be kept or indexed
as a public record in accordance with the PRA,LESSEE agrees to maintain all records constituting public
records and to produce or assist LESSOR in producing such records to the extent required by applicable
law,and within the time frames and parameters required and set forth by applicable state law.LESSEE also
agrees that upon receipt of any written public record request, LESSEE shall notify LESSOR by providing
a copy of the request per the notice provisions of this Agreement to the extent required by applicable law.
1. The headings of the sections of this Agreement are for convenience of reference only and
are not intended to restrict,affect,or be of any weight in the interpretation or construction of the provisions
of the sections or this Agreement.
m. The provisions of this Agreement relating to indemnification from one Party to the other
Party shall survive any termination or expiration of this Agreement.
33. DRUG and ALCOHOL USE POLICY. While performing work pursuant to this
Agreement,the use of illegal drugs,alcohol,or controlled substances on the Property or Premises is strictly
prohibited. LESSEE's employees shall not perform work on the Property or Premises while under the
influence of drugs or alcohol,and if discovered,may be reported to the appropriate law enforcement agency.
34. TOBACCO POLICY.The use of tobacco of any kind on the Property or the Premises shall
be in compliance with LESSOR's written policies on tobacco use received in advance by LESSEE.
35. SAFETY CONSIDERATION. While on the Property or the Premises, LESSEE shall be
responsible for:
a. Compliance with applicable state and federal workplace safety requirements to include
compliance with the County's safety directives and policies;and,
b. Ensuring that its employees performing services are trained in the safety procedures
appropriate to assigned work in compliance with applicable law.
11
WAl JEFFERSON FAIRGROUNDS
4848-8054-5980,v. 1
36. DISPUTES. The Parties agree to use their best efforts to prevent and resolve disputes
before they escalate into claims or legal actions. Any disputed issue not resolved pursuant to the terms of
this Agreement shall be submitted in writing within 10 days to the County Risk Manager, whose decision
in the matter shall be final, but shall be subject to judicial review. If either Party deems it necessary to
institute a legal action or proceeding to enforce any right or obligation under this Agreement,each Party in
such action shall bear the cost of its own attorney's fees and court costs.Any legal action shall be initiated
in the Superior Court of the State of Washington for Jefferson County. The Parties agree that all questions
shall be resolved by application of Washington law without reference to its choice of law rules and that the
parties have the right of appeal from such decisions of the Superior Court in accordance with the laws of
the State of Washington.LESSEE hereby consents to the personal jurisdiction of the Superior Court of the
State of Washington for Jefferson County.
37. REPRESENTATIONS AND WARRANTIES. The Parties represent and warrant that:
a. LESSOR does not warrant the suitability of the Property or the Premises for the purposes
for which LESSEE may desire to use it; nor does LESSOR warrant the adequacy of the location of the
Property or the Premises, its condition, or the condition of any structure. LESSEE understands when it
accepts the Premises,it takes the Premises"AS IS,""WHERE IS"and"WITH ALL FAULTS."
b. Each person signing this Agreement is fully authorized to enter into this Agreement on
behalf of the Party for whom signature is being made;
c. Each Party that is a corporate entity is duly organized and validly existing in good standing
under the laws of one of the states of the United States of America;
d. The making and performance of this Agreement will not violate any provision of law or of
any Party's articles of incorporation,charter,or by-laws;
e. Each corporate Party has taken all necessary corporate and internal legal actions to duly
approve the making and performance of this Agreement and that no further corporate or other internal
approval is necessary;and,
f. Each Party has read this Agreement in its entirety and know the contents of this Agreement,
that the terms of this Agreement are contractual and not merely recitals, and that they have signed this
Agreement,having obtained the advice of legal counsel.
(SIGNATURES AND NOTORIZATIONS FOLLOW ON NEXT PAGES)
12
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4848-8054-5980,v. I
IN WITNESS WHEREOF,the Parties hereto have set their hands and affixed their respective seals
the day and year first above written.
JEFFERSON COUNTY WASHINGTON
Board of County Commissioners
Jefferson County, Washington
By:
Kate Dean, Chair Date
By:
Greg Brotherton, Commissioner Date
By:
Heidi Eisenhour, Commissioner Date
SEAL:
ATTEST:
Carolyn Galloway Date
Clerk of the Board
Approved as to form only:
�q 4
April 15, 2021
Philip C. Hunsucker Date
Chief Civil Deputy Prosecuting Attorney
1
WAI JEFFERSON FAIRGROUNDS
4848-8054-5980,v.3
STATE OF WASHINTON )
)ss.
COUNTY OF JEFFERSON )
On this day of ,202_,before me,a Notary Public in and for the State
of , personally appeared KATE DEAN, personally known to me (or proved to
me on the basis of satisfactory evidence)to be the person who executed this instrument,on oath stated that
she is authorized to execute the instrument,and acknowledged it as a Commissioner of the Board of County
Commissioners of Jefferson County,to be the free and voluntary act and deed of said party for the uses and
purposes mentioned in the instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal the day and year first
above written.
NOTARY PUBLIC in and for the State of
residing at
My appointment expires
Print Name
STATE OF WASHINTON )
)ss.
COUNTY OF JEFFERSON )
On this day of ,202_,before me,a Notary Public in and for the State
of ,personally appeared GREG BROTHERTON,personally known to me(or
proved to me on the basis of satisfactory evidence)to be the person who executed this instrument, on oath
stated that he is authorized to execute the instrument,and acknowledged it as a Commissioner of the Board
of County Commissioners of Jefferson County, to be the free and voluntary act and deed of said party for
the uses and purposes mentioned in the instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal the day and year first
above written.
NOTARY PUBLIC in and for the State of
residing at
My appointment expires
Print Name
2
WA1 JEFFERSON FAIRGROUNDS
4848-8054-5980,v.1
STATE OF WASHINTON )
)ss.
COUNTY OF JEFFERSON )
On this day of ,202_,before me,a Notary Public in and for the State
of , personally appeared HEIDI EISENHOUR, personally known to me (or
proved to me on the basis of satisfactory evidence)to be the person who executed this instrument, on oath
stated that she is authorized to execute the instrument,and acknowledged it as a Commissioner of the Board
of County Commissioners of Jefferson County,to be the free and voluntary act and deed of said party for
the uses and purposes mentioned in the instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal the day and year first
above written.
NOTARY PUBLIC in and for the State of
residing at
My appointment expires
Print Name
3
WAl JEFFERSON FAIRGROUNDS
4848-8054-5980,v. I
CELLCO PARTNERSHIP D/B/A VERIZON WIRELESS
By:
Signature
Name:
Title:
Date:
STATE OF WASHINGTON )
)ss.
COUNTY OF KING )
On this day of ,202_,before me,a Notary Public in and for the State
of Washington, personally appeared , personally known to me (or proved to me
on the basis of satisfactory evidence)to be the person who executed this instrument, on oath stated that he
was authorized to execute the instrument, and acknowledged it as the
of Cellco Partnership d/b/a Verizon Wireless,to be the free
and voluntary act and deed of said party for the uses and purposes mentioned in the instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal the day and year first
above written.
NOTARY PUBLIC in and for the State of WA,
residing at
My appointment expires
Print Name
4
WAI JEFFERSON FAIRGROUNDS
4848-8054-5980,v.I
EXHIBIT"A"
DESCRIPTION OF PROPERTY
All of Blocks 4,5,6,7, 11, 12. 13, 14,21,22,23 and 24 of Bracken's Addition to the City of Port Townsend,as
per plat recorded in Volume 2 of Plats.page 89,records of Jefferson County,Washington;
TOGETHER WITH those portions of vacated Hill Street,45'Street and 47"'Street vacated under Ordinance No.
1799 and recorded March 8, 1978 under Auditor's File No.248310 that would attach by Operation of Law.
Situate in the County of Jefferson,State of Washington.
5
WA JEFFERSON FAIRGROUNDS
4848-8054-5980,v.I
EXHIBIT"B"
DESCRIPTION OF THE PREMISES
(See Attached)
6
WA1 JEFFERSON FAIRGROUNDS
4848-8054-5980,v. I
1 il __lit; L__. _ __I f.4._ _ __ ____ _
z _ _ 49TH ST _
/ J
c.
:1(....,...„.„.. ..1°.
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PEDESTAL
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UTILITY POLE N.
•
1401
(TYPICAL) .
I BUILDING I •
•
I---'I : r----L-1 UTILITY POLE
BUILDING I :• J
BUILDING
i--_—I rI pproximately—
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I BurLOINc1 ; I i 1 A 520' utility
L--- : lr__I route
'BUILDING]
•
I BUILDING
I .._..._
IBUILDING L. - ......... DrOir POLE• ^( -.
.••° '� +Approximately a.
Approximate j—I 360'
location of —J o U
> access and Z
I
utility cn
Lu
' easement
Approximate cc
2 location of
k Premises
i LLI
a
PARENT PARCEL
TAX LOT/I01J44004
JLttERSON COUNTY FAIRGROUNDS
I
I
7
WA1 JEFFERSON FAIRGROUNDS
4848-8054-5980,v. I