Loading...
LEA-SALSBURY ANTENNA SITE DESLEA-SALSBURY ANTENNA SITE DES °- ANTENNA SITE LEASE At Fletcher Hill Site WHEREAS, The lessor, Douglas E Salsbury, having is principal place of business at P.O. Box 627, Whitehall, Montana 59759. WHEREAS, The Lessee, Jefferson County Montana, is a political subdivision of the State of Montana. NOW THEREFORE, the parties enter into this lease on the terms and conditions set forth herein: 1. Parties: This lease is made thid�C day of J17A 4' > 2006, between Douglas E Salsbury, Lessor and Jefferson County Montana, Lessee. 2. Lease of the Property: A legal description of the Property is a follows: Jefferson County Southwest quarter of the Southwest quarter of section 21, Township 4 North, Range 4 West commonly preferred to as the Fletcher Hill Site. a. Property. The Lessor leases to lessee a portion of the described property consisting of space at the Fletcher Hill Site located on the property for the placement of equipment related and necessary to the installation of the antenna contemplated herein and day -to -day operations. Lessee shall not have any rights in the leased property except as specifically granted herein. b. Lessee Improvements. The "Commencement Date" shall be the date that lessor provides lessee with a written notice to proceed with construction of the improvements contemplated herein. All proposed methods of antenna attachment shall be approved by the lessor prior to installation of the antennas. The lessor shall also approve installation of all other equipment and such approval shall not be unreasonably withheld. The improvements described herein may be hereafter referred to herein as the "Antenna Facilities ". e. Alterations: Following construction, Lessee shall not make any alterations in the external elevation or design of the Antenna Facilities on the property without the consent in writing of the lessor. 3. Rent. Lessee shall pay to the lessor as rent the following sums for location of its Antenna Facilities: Year 1 through 3 - Ten Dollars ($10.00) per year. Rent for the first year shall be payable on or before the Commencement Date. Rent for subsequent years shall be payable annually on or before the same date in each year thereafter. All installments are to be paid at the above address of the lessor, or at such other place as the lessor may designate from time to time in writing to Lessee. Any lease payment paid beyond thirty (30) days past the due date thereof shall have interest thereon at the highest non- usurious rate permitted by law. 4. Term of Lease. This lease shall be for an initial term of three (3) years. Lessee shall have the option to extend its tenancy beyond the initial term for three (3) additional successive optional extension term of three (3) years. This lease cannot be terminated during the first three (3) years except as otherwise provided herein. Lessee shall exercise the option to extend by giving written notice of exercise to Lessor not less than sixty (60) days prior to the expiration of the initial term. Each renewal term shall be on the same terms and conditions as set forth herein. 5. Use of the Property. Lessee shall use the Property for the installation, operation, and maintenance of its facilities for the transmission, reception and operation of a communications system and uses incidental thereto. Lessor may not allow other entities to use other portions of the Fletcher Hill Site for electronic equipment closer than 250 -foot radius of Lessee's equipment or may cause interference to Lessee's equipment, subject to the remaining provisions of this lease. . 6. Access to Property. Lessee shall have the right to enter or leave the Property where the equipment is located at all times. The Lessor agrees that it will not give unauthorized persons access to Lessee's equipment. The Lessor shall not disturb that portion of the Property occupied by Lessee unless it has given Lessee twenty -four (24) hours' notice of such intended disturbance, except in the case of emergency such notice is hereby waived by Lessee. In the event of emergency access, the Lessor will attempt to notify Lessee of disturbance as soon as reasonably practicable following the event of disturbance. The rights granted to Lessee herein are for the purpose of installing, constructing, maintaining, restoring, replacing, and operating Lessee's equipment located within or on the Property. Any damage to the Property caused by Lessee shall be repaired and the Property shall be restored to its original condition prior to lease. 1 lam` � + 7. Construction Standards. The Antenna Facilities shall be installed on the Property in a good and workmanlike manner without the attachment of any construction liens. Lessor reserves the right to require Lessee to shield its facilities from public view, without causing interference with the function of such facilities. 8. Repairs to the Property. Lessee shall not be responsible for repairs required to the Property, except for repairs required as a result of Lessee's activities on the property. 9. Protections Against Interference. Lessor will not grant a future lease to any party for use of the Property or facilities owned by the Lessor at the Fletcher Hill Site location if such use would interfere with Lessee's operation of its communication system at the Fletcher Hill Site location. Lessee shall have the right to terminate this Lease upon thirty (30) days written notice in the event its reception or transmission is interfered with by other antenna equipment, or obstacles are constructed or operated in Lessee's reception or transmission paths which termination shall be Lessee's sole remedy for any such interference. 10. Warranties and Covenants of Lessee. Lessee warrants and covenants that: a. Lessee shall indemnify and hold harmless the Lessor and its agents, officers and employees from any and all claims for damages of any kind or nature (including the cost of suit and reasonable expenses for legal services) which may hereafter be made against the Lessor and its agents, officers and employees or Lessee as a result of Lessee's installation, operation or maintenance of communications equipment on the Property, unless caused by the Lessor's sole negligence or willful misconduct b. Lessee's operation of the communication equipment described herein and any systems connected therewith shall not interfere in any way with Lessor's operations or with any other tenants in operation at the Fletcher Hill Site location at the date this lease is executed or the date Lessee's equipment is installed, whichever is later. If Lessee' s facilities cause interference, Lessee shall take all measures reasonably necessary to correct and eliminate the interference. If the interference cannot be eliminated in a reasonable time, Lessee shall immediately cease operating its facility until the interference has been eliminated. c. Lessee shall maintain its improvements on the Property in a good and safe condition consistent with standard industry practices. d. Lessee shall not suffer the Property or any erection or improvements thereon to become subject to any lien, charge, or encumbrance whatsoever, and shall indemnify the Lessor against all such liens, charges, and encumbrances; it being expressly agreed that Lessee shall have no authority, expressed or implied, to create any lien, charge, or encumbrance upon the Property. e. Lessee shall not make or suffer any use or occupancy of the Property contrary to any law or ordinance now or hereafter in force. 11. Warranties and Covenants of Lessor. The Lessor warrants and covenants that: a. Lessor has the right to grant this Lease and that the Property may be lawfully used by Lessee for the uses herein expressed and Lessee shall enjoy quiet and peaceable possession of the Property during the term hereof upon performance of the obligations of Lessee contained in this Lease. This section shall not be construed in any way to limit the night of Lessor to lease parts of the Property not occupied by Lessee to other persons or entities. b. Lessor shall deliver the Property to Lessee clean and free of debris on the Commencement Date and shall maintain its Property and Facilities in a manner that will not substantially interfere with Lessee's use of the Property as contemplated hereby. In addition, Lessor shall maintain and operate its Property and Facilities in a good and safe condition, consistent with standard industry practices. In the event that Lessor's use of the Property interferes with Lessee's use of the Property, Lessee's sole remedy shall be termination of the Lease. c. Lessor does not guarantee to Lessee subsequent noninterference with Lessee's communication operations, provided, however, that in the event any other party except a governmental unit, office or agency requests a lease and/or permission to place any type of additional antenna or transmission facility on the Fletcher Hill Site, the procedures of this paragraph shall be used to determine whether such antenna or transmission facility within 250 feet will interfere with Lessee's transmission operations. 2 12. Taxes. The parties to this agreement expressly acknowledge that Lessor is exempt from taxation and that any and all taxation of the Property due to the activities of Lessee on the Property are the sole responsibility of Lessee. 13. Other Regulations. Lessee shall, at its expense, comply with all present and future' federal, state, and local laws, ordinances, rules and regulations (including laws and ordinances relating to health, radio frequency emissions, other radiation and safety) in connection with the use, operation, maintenance, construction and/or installation of the facilities on the Property. Lessor agrees to reasonably cooperate with Lessee in obtaining, at Lessee's expense (including reimbursement of Lessor's reasonable attorney and administrative fees), any federal licenses and permits required for or substantially required by Lessee's use of the Property. 14. Installation of Equipment. a. Lessee shall install, operate and maintain its facilities on the Property in accordance with good engineering practices. Such activities shall be at the cost and expense of Lessee. b. Any damage done to the Fletcher Hill Site during installation and/or during operations shall be repaired or replaced immediately at Lessee's expense and to Lessor's satisfaction. 15. Equipment Upgrade. Lessee may update or replace its facilities from time to time with the prior written approval of Lessor, provided that the replacement facilities are not greater in number or size than the existing facilities and that any change in their location on the pole is approved in writing by Lessor. Lessee shall submit to Lessor a detailed proposal for any such replacement facilities and any supplemental materials as may be requested, for Lessor's evaluation approval. 16. Maintenance. Lessee shall, at its own expense, maintain any equipment on or attached to the Property in a safe condition, in good repair and a manner suitable to Lessor so as not to conflict with the use of other leasing of the Fletcher Hill Site by Lessor. Lessee shall not interfere with the use of the pole or other equipment on the Property. Lessee shall have the sole responsibility for the maintenance, repair, and security of its equipment, personal property, and shall keep the same in good repair and condition during the Lease term. Lessee shall keep the Property free of debris and anything of a dangerous, chemically hazardous, noxious or offensive nature or which would create a hazard or undue vibration, heat, noise or interference. 17. Liability and Indemnification. In addition to the warranties and covenants herein set forth, Lessee shall indemnify the Lessor against all costs and expenses, including attorney fees, lawfully and reasonably incurred as a result of Lessee's activities in or about the Property, or in the defense of any action or proceeding arising there from, or in discharging the Property from any charge, lien, or encumbrance, or in obtaining possession after default of Lessee or the termination of the Lease. 18. Disclaimer of Liability. 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 Lessee's Antenna except to the extent such injury or damage was caused by the Lessor's sole negligence or intentional misconduct. I 19. Assumption of Risk. Lessee undertakes and assumes for its officers, agents, affiliates, contractors and subcontractors, employees and assigns (collectively "Lessee" for the purpose of this section), all risk of dangerous conditions, if any, on or about the Property, and Lessee hereby agrees to indemnify and hold harmless the Lessor and its agents, officers and employees against and from any claim asserted or liability imposed upon the Lessor and its agents, officers and employees for personal injury or property damage to any person arising out of the Lessee's installation, operation, maintenance, condition or use of the Lessee's Antenna or Lessee's failure to comply with any federal, state or local statute, ordinance or regulation except to the extent such injury or damage was caused by the Lessor's sole negligence or intentional misconduct. 20. Defense of Lessor. In the event any action or proceeding shall be brought against the Lessor or any of its agents, officers or employees by reason of any matter for which the Lessor or any of its agents, officers or employees are indemnified hereunder, Lessee shall, upon notice from any of said parties, at Lessee's sole cost and expense, resist and defend the same with legal counsel mutually selected by Lessee and Lessor; provided however, that Lessee shall not admit liability in any such matter on behalf of the Lessor or its agents, officers or employees without the written consent of Lessor and provided further that Lessor shall not admit liability for, nor enter into any compromise or settlement of, any claim for which it is indemnified hereunder, without the prior written consent of Lessee. 3 • 21. Approvals and Compliance with Laws. Lessee's use of the Property is contingent upon its obtaining all certificates, permits, zoning, and other approvals that may be required by any federal, state or local authority. Lessee shall erect, maintain and operate its antenna in accordance with site standards, statutes, ordinances, rules and regulations now in effect or that may be issued thereafter by the Federal Communications Commission. 22. Hazardous Substance Indemnification. Lessee represents and warrants that its use of the Property herein will not generate any hazardous substance, and it will not store or dispose on the Property nor transport to or over the Property any hazardous substance. Lessee further agrees to hold Lessor harmless from and indemnify Lessor and its agents, officers and employees against Lessee's release of any such hazardous substance and any damage, loss, or expense or liability resulting from such release including all reasonable attorney's fees, costs and penalties incurred as a result thereof except any release caused by the negligence of Lessor, it employees or agents. "Hazardous substance" shall be interpreted broadly to mean any substance or material defined or designated as hazardous or toxic waste, hazardous or toxic material, hazardous or toxic or radioactive substance, or other similar term by any federal, state or local environmental law, regulation or rule presently in effect or promulgated in the future, as such laws, regulations or rules may be amended from time to time; and it shall be interpreted to include, but not be limited to, any substance which after release into the environment will or may reasonably be anticipated to cause sickness, death or disease. Lessor represents to Lessee that it has no actual knowledge of the presence of hazardous substances on the Property. 23. Title To and Removal of Lessee's Equipment. Title to Lessee's equipment, and all improvements installed at the property by Lessee shall be and shall remain the property of Lessee. Lessee may, at any time, including any time it vacates the Property, remove Lessee's improvements, equipment, and all of Lessee's personal property from the Property. Any property of Lessee's remaining on the Property thirty (30) days after the expiration of the term shall be deemed to have been abandoned and will become the property of the Lessor; provided that, nothing herein shall relieve Lessee of its obligation to remove any and all property owned by Lessee upon request of the Lessor following termination of this Lease. 24. Termination. a. By Lessee. During the initial three -year term of this lease, Lessee may terminate this lease for cause upon the giving of thirty (30) days written notice to the Lessor if any of the following events occur: Lessee fails to obtain or loses any necessary permits, approvals or orders and is thereby unable to use the Property as an antenna site; Lessee determines prior to the location of any equipment on the Property that the Property is not appropriate for locating Lessee's antenna for technological reasons, including, but not limited to, signal interference; or the Lessor fails to comply with any term, condition or covenant of this Lease and does not cure such failure within thirty (30) days after written notice thereof, except where lesser notice is otherwise provided herein. b. By the Lessor. During the initial three -year term of this lease, the Lessor may terminate this Lease upon the giving of thirty (30) days written notice to Lessee of any of the following: Lessee fails to pay any rent required hereunder when due if such failure shall continue for more than thirty (30) calendar days after delivery to Lessee of notice of such failure to make timely payment; or Lessee's failure to comply with any material term, condition or covenant of this Lease, other than the payment of rent, if such failure is not cured within thirty (30) days after written notice thereof to Lessee, or in the event of a cure which requires in excess of thirty (30) days to complete, if Lessee has not commenced such cure within thirty (30) days of such notice and is not diligently prosecuting said cure to completion, except where lesser notice is otherwise provided herein; or Lessor determines, in its sole discretion that continued use of the Fletcher Hill Site by Lessee is a threat to the public health, safety or welfare. Notwithstanding the foregoing, in the event of termination pursuant to this subparagraph, Lessor will give Lessee 180 days written notice (unless an emergency or imminent danger exists) prior to termination of this Lease. c. Removal or Property. At the termination of the Lease, Lessee will remove all of its property and surrender the Property to the Lessor in good order and condition, excepting the following: ordinary 4 f wear and tear, damage by fire, the elements, casualty, and the Lessor's negligence or intentional r misconduct. 25. Default. Failure of Lessee to pay rent as herein provided or failure of Lessee to promptly and faithfully keep and perform every covenant, condition, agreement and obligation of this lease shall at the option of the Lessor cause the forfeiture of this Lease, without, however, releasing Lessee from liability, as hereinafter provided; and if such default is hot corrected within the applicable period set forth herein, possession of the demised Property and all improvements thereon shall be delivered to the Lessor and the Lessor shall be entitled to take immediate possession of the Property. . 26. Holding Over. In the event Lessee continues to occupy the Property after the last day of the term(s) herein created (without giving notice of exercise of its option to extend as provided herein), and the Lessor elects to accept rent thereafter, a tenancy from month to month only shall be created and not for any longer period, subject to the provisions of this Lease. 27. Assignments. Lessor may not assign this lease without the written content of lessor, except the lessee may assign, without the Lessor's prior written consent, this lease to any entity controlling, controlled be or under common control with lessee provided that Lessor's rights and interests are not adversely affected thereby. In this event that Lessee makes an assignment of this lease, Lessee shall remain fully liable, together with such assignee, to perform all obligations under this lease. Nothing in this lease shall prohibit Lessor from leasing other space for communication equipment to any person or entity that may be in competition with Lessee, or any other party. 28. Amendment. This lease is the entire understanding between the parties and may not be modified, except be mutual written agreement. 29. Partial Invalidity. if any terms or condition of this lease or the application thereof to any person or event shall to any extent be invalid and unenforceable, the remainder of this lease in the application of such term, covenant or condition to persons or events other than those to which it is held invalid or unenforceable shall not be affected and each term, covenant and condition of this lease shall be valid and be enforced to the fullest extent permitted by law. 30. Arbitration. If any part of this Lease comes in to dispute or problem should any problems arise between the Lessor and or Lessee both agree to arbitration of said disagreement. This is the sole means for dispute settlement of any disagreements. 31. Notices. All notices, requests, demands and other communications hereunder shall be in writing and shall be deemed given if personally delivered or mailed, certified mail, return receipt requested to the following addresses. Lessee: Jefferson County Montana, P. O. Box H, Boulder, Montana 59632 Lessor: Douglas E. Salsbury, P. O. Box 627, Whitehall, Montana 59759 32. Notice: There is a current lease dated 8/2/04 with MTWEB.NET at the Fletcher Hill Site using frequency band 5.8 in and 2.4 out. Their channels are 5756, 5786,5836. Attention to paragraph #5 page 2. IN WITNESS WHEREOF, The parties hereto have hereunto set their hands and seals as of day and year first written above. Douglas E Salsbury Lessor of Fletcher Hill Site j Owner /Ope for Jefferson County Montana Lessee of Fletcher Hill Site Chairman, Jefferson County Co issi ners 5