HomeMy WebLinkAboutLease "'r"'' ``��AG-99-007
RIGHT OF ENTRY AND LICENSE AGREEMENT
This Right of Entry and License Agreement(the "Agreement") made as of this ��„a day of
December, 1999, by and between the City of Renton a Municipal Corporation, with offices at 1055
South Gradv Wa_y, Renton, WA 98055 (the "Owner") and TCG Seattle, a New York general
partnership, a wholly owned subsidiary of AT&T Corp., with offices at 1215 4th Avenue, Suite 1500,
Seattle, WA 98161 (the "Company").
WHEREAS, the Company desires to provide telecommunications services to the premises
located at 200 Mill Avenue South, Renton, WA 98055 (the "Premises"), and Owner has agreed to
allow the Company to provide such services under the conditions described herein.
1. Right of Entry and License. Owner hereby grants to Company a Right of Entry(the "ROE")
and License to construct, install, own, operate, maintain, repair, disconnect, replace and remove fiber
optic cable and associated equipment (collectively the "Facilities"), and the use of ancillary equipment
space as more fully described in Exhibit A ("the Space"), necessary to make available communications
services in, on, over and across the Premises. Additionally Owner hereby also grants Company
permission to install on the roof„ at the location described in Exhibit B„ antenna(s) together with the
cables from the antenna to Company's Facilities under the terms and conditions described in 3. License
Fee/Payment. below: (a) Owner shall provide available building riser and conduit, and the Company
shall have the right to construct, where necessary and at its sole cost, additional conduit facilities
associated with the Facilities; (b) Upon prior reasonable notice from the Company, Owner agrees to
assist the Company in locating and accessing riser space on the Premises, including entry to and exit
from the building and Premises; (c) Company shall install a separate electrical submeter for electricity
used on the Property, and shall pay the periodic charges for the electricity used on the Property, as
recorded on the submeter; (d) The ROE and License granted herein is not exclusive, Owner hereby
reserving the right to grant, renew or extend similar ROE and License rights to others; (e) Company
shall have access to the roof and Company's equipment relating to the antenna at all times throughout
the term of this License. Company shall be responsible for procuring whatever license or permits may
be required for the use of such antenna or operation of any equipment served thereby; (�Nothing
contained herein shall be construed as granting to the Company any property or ownership rights in the
Premises, or to create a partnership ar joint venture between Owner and the Company; (g) Company
shall have the right to permit its customers or tenants of the Premises to collocate telecommunications
equipment in the space.
2. Use. Subject to the availability thereof, and subject to any regulatory requirements or
limitations, the Company shall use the Facilities to make available and/or provide to the tenant(s)
and/or occupant(s) of the Premises, lawful communications services ("Communications Services").
3. License Fee/Payment. Company shall pay for Right of Entry and License for the Facilities and
ancillary equipment space $400.00 per month during the term of this Agreement at Owner's address
indicated in the introductory paragraph, in advance, on the first day of each calendar month, or at a rate
for any portion of a calendar number. Additionally, Company may, with ten(10) days notice to Owner,
and with payment of Six Hundred Dollars ($600.00)per month (hereinafter "Roof Fee"), beginning on
the first day of the next calendar month, exercise its rights to use the roof space described in Paragraph
1 and on Exhibit B. However, in the event that either party disputes the Roof Fee as being above or
below fair market value (hereinafter"Market Rent"), the parties shall negotiate in good faith to
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establish the Market Rent for comparable use of comparable roof space as the Roof Fee. If the parties
are unable to agree on Market Rent for the Roof Fee within thirty (30)) days, then each party shall
appoint a disinterested, independent appraiser who is a member of the American Institute of Real
Estate Appraisers (an"Appraiser") and has at least five years experience appraising rental properties in
the Seattle area. If the Appraisers are unable to reach agreement about Market Rent for the Roof Fee
within thirty ( 30) days ,then either party on notice to the other may request appointment of a single
arbitrator by the American Arbitration Association ("AAA") in accordance with its then prevailing real
estate valuation arbitration rules, who, after considering the valuation of Market Rent determined by
each Appraiser, shall then, within thirty (30) days, set the Roof Fee to be paid hereunder. Company
shall pay the thus established monthly Roof Fee in addition to the monthly Facilities and ancillary
equipment space payment on the first day of the next calendar month.
At Company's option, Company(i)may at Company's expense build, install and place
underground conduit from the public rights of way, where Company's network is located, to Owner's
land or property into the Premises, or (ii) Company may pay to Owner, as an additional fee, a one
time payment of One Thousand Dollars ($1,000.00) for the use of Owner owned underground conduit
from a location outside the Premises where Company's network is located, across, over or under
Owner's land or property into the Premises for placement of, and connecting Company's cable facility
to the Premises. Company may use Owner's conduit for at least five (5)years and any additional time
that Owner has no compelling City use for the conduit. Owner may after five (5)years following
Commencement, and with 120 days prior written notice to Company, terminate Company's use of
Owner's conduit, but only if Owner's need for such conduit cannot reasonably be met with alternative
means that have been fully considered, at which time Company may build, install and place its own
underground conduit. Owner may at any time re-route it's conduit. Should such rerouting be required
by Owner, Company may place its cable in the new route at Company's expense. Company
understands that power lines are located in the conduit path in parallel with conduit to be licensed by
Company and that Company holds Owner harmless from and accepts any interference to the cable that
that may exist due to the presence of such power lines. All Company's construction shall be in
compliance with established City codes, ordinances and required inspections.
4. Construction. Prior to the commencement of any work, the Company shall, at its sole cost and
expense,prepare and deliver to Owner complete working drawings, plans and specifications (the
"Plans"), detailing the location and size of the Facilities, antenna(s) and specifically describing all
proposed construction and work. No work shall commence until Owner has approved the Plans, which
approval will not be unreasonably withheld or delayed. The Company shall: (a)perform all such
construction in a safe and workmanlike manner; (b)perform all such construction and work in such a
way as to minimize interference with the operation of the Premises; (c) maintain worker's
compensation insurance in form and amount as is required by law during all such periods of
construction and wark; (d) obtain, prior to the commencement of any construction and work, all
necessary federal, state and municipal permits, licenses and approvals; and (e) Owner agrees to use
reasonable efforts to notify the Company if and when Owner becomes aware of any damages to the
Company's Facilities.
5. Provision of Services; Marketing. All requests for Communication Services ordered by the
individual tenant(s) of the Premises shall be delineated and agreed to under separate service orders with
the Company. Tenant(s) shall be charged and billed individually by the Company for services at the
monthly rates and installation charges applicable to the Communications Services ordered. All
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Communications Services offered to the Premises pursuant to this Agreement are subject to change and
may be modified accordingly by the Company. Owner agrees that the Company shall have the right to
market and contract with individual tenant(s) of the Premises for Communications Services.
6. Company's Covenants. During the term, the Company hereby covenants and agrees: (a) to
keep the Facilities in the Space allocated in good order, repair and condition throughout the term of the
Agreement and to promptly and adequately repair any damage to the Premises caused by the Company
or the Facilities by restoring the damaged area(s) to substantially original condition; (b) to comply with
all federal, state and municipal laws, orders, rules and regulations applicable to the Facilities and/or the
Premises in relation to Company's particular use; (c)to maintain insurance, including commercial
general liability and automobile liability insurance with a combined single limit of 2,000,000 per
occurrence; and provide Owner with a Certificate of insurance stating that the Owner be included as
an additional insured, but only with respect to liability arising from the Company's use and occupancy
of the Premises for which it has assumed responsibility herein, and be given a renewal certificate of
insurance prior to expiration of the policies;(d)Not to disrupt, affect or interfere with other providers of
services in the Premises or with any tenant's use and enjoyment of their leased premises or the common
areas of the Premises.
7. Owner's Covenants. Owner hereby covenants and agrees: (a)that Owner is the owner of the
Premises, or the authorized agent of such owner, with full authority to bind such owner to the terms
and conditions of this Agreement; and(b)that Owner has complied and during the term of this
Agreement shall comply with all laws, rules and regulations, including, without limitation,
environmental laws, rules and regulations, applicable to the Premises; that Owner is presently unaware,
and during the term of this Agreement shall notify Company, of any violations of any such laws, rules
or regulations; and that the Premises is and during the term of this Agreement shall be free of all
known environmental hazards, including, without limitation, asbestos. If Owner or Company becomes
aware of any suspected environmental condition, such party shall so notify the other in writing. If an
environmental condition does exist, Company may at its option, terminate this Agreement with fifteen
(15) days written notice to the owner.
8. Ownership of Facilities. The Company shall construct, install, own and maintain the Facilities
and antenna(s) in the Premises described in this Agreement, in accordance with all applicable
regulations and codes. All parts of the Company's Facilities located in and on the Premises, regardless
of whether installed within or outside of the building, overhead, above or underground, shall remain
the personal property of the Company, and shall not be considered a fixture to the real estate or fixture
of the building located thereon.
9. Termination. The Facilities, and any other personal property in the Premises belonging to the
Company shall be there at the sole risk of the Company, and Owner shall not be liable for damage
thereto or theft, misappropriation or loss thereof, except due to Owner's negligence or willful
misconduct. At the termination of this Agreement, the Company may, at its sole cost and expense,
remove the Facilities and its personal property from the Premises, and repair all damage caused by such
removal. Any properly not so removed within ninety(90) days after the expiration of this Agreement
shall be deemed the property of the Owner.
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10. Condition of Premises. Owner makes no warranty or representation that the Premises are
suitable for the use described in Section 2 of this Agreement it being assumed that Company has
satisfied itself thereo£ The Company has inspected the Premises, accepts the same "as is".
11. Casualty or Condemnation. In the event of a fire, casualty or condemnation by a
governmental authority of any portion of the Premises that affects Company's use of the Facilities,
Antenna or the Premises, in Company's sole discretion, Company shall have the right to terminate this
Agreement upon fifteen (15) days prior written notice to Owner.
12. Access. Owner shall provide access to the Premises, Space, Antenna(s) and Facilities 24 hours
a day, 7 days a week so that the Company may perform installation, maintenance and emergency repair
functions.
13. Indemnification. The Company shall indemnify and hold Owner harmless from and against
any and all claims, including but not limited to, claims by third parties, loss, cost, damage and expense
arising , directly, from the access or operation of the Company's Facilities or from Company's breach of
this Agreement, including but not limited to reasonable attorney's fees, and excluding Owner's
negligent acts, omissions or willful misconduct.
14. Term. The term of this Agreement shall be in effect the latter of(i) as long as Company has
customers in the building or(ii)ten(10)years; however, the Company may terminate this Agreement
with thirty(30) days prior notice to the Owner if Company is unable to install or maintain its Facilities
because of any governmental law, rule or regulation or due to any other cause beyond the reasonable
control of Company.
15. Successors and Assigns. The benefits and obligations of this Agreement shall inure to the
benefit of, and be binding upon, the successors, assignees, heirs and personal representatives of the
Owner and the Company. Either party hereto shall have the right to assign this Agreement upon first
obtaining the written consent of the non-assigning party. The assigning party shall provide to the non-
assigning party,prior written notice setting forth the name and address of the assignee under any such
assignment. Notwithstanding anything to the contrary contained herein, either party may assign this
Agreement without consent to: (a) a subsidiary, affiliate or parent company; (b) any firm, corporation,
or entity which the Company controls, is controlled by, or is under common control with; or(c) any
partnership in which it has a majority interest; or(d) to any entity which succeeds to all or substantially
all of its assets whether by merger, sale or otherwise.
16. Flooding. Company acknowledges that the `ground floor' of the premises is in a flood plain
and accepts all liability and consequences for damage to its facilities due to any flooding which may
occur during the term of this Right of Entry and License Agreement.
17. Independence of the parties. The parties herein agree and acknowledge that the employees of
the Company are not employees of the City of Renton for any and all purposes, including but not
limited to, Worker's Compensation. The parties herein agree that the employees of the City of Renton
are not employees of the Company for any and all purposes, including but not limited to, Worker's
Compensation.
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18. Default. In the event either party fails to comply with any provisions of this Agreement
("Default"), which Default shall not have been cured by the defaulting party within thirty(30) days
after receiving written notice specifying such Default from the non-defaulting party, then the non-
defaulting party may immediately or any time thereafter terminate this Agreement upon written notice
to the defaulting party.
19. Notice. Every notice required or permitted hereunder shall be in writing and shall be deemed to
have been duly given when delivered by hand or when mailed by certified or registered mail, return
receipt requested to the party's address set forth in the introductory paragraph of this Agreement with a
copy to Teleport Communications Group Inc., 429 Ridge Road, Dayton,NJ 08810, Attention: Legal
Department.
20. Governing Law. This Agreement shall be governed by the laws of the state in which the
Premises is located as to interpretation, construction and performance.
21. Entire Agreement. This Agreement supersedes all other ROE and License Agreements
between the parties, either aral or in writing.
22. Counterparts. This Agreement may be executed in counterparts and each counterpart
constitutes an original document.
23. Amendments. This Agreement may be amended, changed or modified only by written
amendment executed by the parties hereto. No waiver of any provision of this Agreement shall be
valid unless in writing signed by the party charged.
24. Renewal. Company will have the option to renew this License for two (2) five (5)year terms
upon the same terms and conditions.
25. Taxes. Company shall pay any taxes, including leasehold taxes which are directly assessed on,
or any portion of such t�es which are directly attributable to, Company's use and occupancy of the
Premises, and which are separately assessed and documented.
Witness the execution hereof as an instrument under seal as of the date first above written.
OWNER: CITY OF RENTON COMPANY: TCG SEATTLE
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By: � By. '
Name �r--(-f�- �.� s-{- Name
Jesse Tanner
Mayor
Its:
Its• rl�l��'d,� ��L.,
Title Title
APPRO`"ED .�S TO FOR'��
�TTE�T� LEGA EPART"?�
Marilyn . P � rsen, City Clerk Date/� �1' Bv<<�ti��
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EXHIBIT A
To the Right of Entry and License Agreement dated
Between--�{� C��{-�, d�' �t.�.n-f o r, , �v�, as Owner,and TCG,as Company
Space Plan
200 Mill Ave S
Renton, WA
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equipment space location
located on basement level � — -
(approx 100sq ft) i �
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(not to scale)
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EXHIBIT B
To the Right of Entry and License Agreement dated
Between -f-�.Q L' ,=l-., n� �,,n-�.,,n � j,v f{,as Owner,and TCG,as Company
Roof Plan
200 Mill Ave S
Renton, WA
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rooftop �
approx antenna •
location
(not to scale)