HomeMy WebLinkAboutWashington State Department of Transportation - Lookout Point Communication Site Sublease AgreementIT•Servic
CITY Of Y A K
CITY OF YAKIMA
LOOKOUT POINT COMMUNICATION SITE
SITE SUBLEASE AGREEMENT
THIS SITE SUBLEASE AGREEMENT ("sublease") is entered into this 1v day of Dec-, 2017
between the City of Yakima, a municipal corporation ("Sublessor"), and Washington State Department
of Transportation, ("Sublessee").
WHEREAS, Sublessor possesses the right to use and sublease a portion of the property described in
the attached Exhibit A located at Lookout Point Communication Site {the "Site") pursuant to a Lease
Agreement executed on September 6, 2016, by and between Sublessor and Ellensburg Telephone
Company, d/b/a FairPoint Communications, a Washington corporation ("FairPoint") (hereafter the
"Master Agreement");
WHEREAS, Sublessor and Sublessee desire to enter into this Sublease which will permit
Sublessee to use a portion of the Site as further described herein.
NOW, THEREFORE, for good and valuable consideration, the parties agree as follows:
1. Premises: Subject to the following terms and conditions, Sublessor leases to Sublessee use of a
portion of the real property (the "Property") described in Exhibit A attached hereto. Sublessee's
use of the Property shall be limited to those portions of the Site described and depicted in
Exhibit B attached hereto, together with easements for access and utilities as provided herein,
which portions consists of; space on the Tower (as defined below), and sufficient space
extending from the equipment shelter to the Tower.
2. Use: The Premises may be used by Sublessee for the transmission and reception of wireless
communication signals in the frequencies described in Exhibit B. Sublessor agrees to cooperate
with Sublessee in obtaining, at Sublessee's expense, all licenses and permits required for
Sublessee's use of the Premises ("Governmental Approvals"). Sublessee's use of the Property
shall be limited to use as a wireless communications facility, only.
3. Term: The initial term of this Sublease shall be five (5) years, commencing upon the first of the
month, (Commencement Date), after this agreement is fully executed by both parties. The
Initial Term will terminate on the last day of the month in which the fifth (5`h) annual
anniversary of the Term Commencement Date occurs. Sublessee shall have the right to extend
Page 1 of 9 WSDOT 5-39-15243
this Sublease for three (3) additional five (5) year term(s) (each five (5) year term shall be
defined as an "Extension Term"), upon the same terms and conditions as set forth herein. This
Sublease shall automatically be renewed for each successive Extension Term unless Sublessee
notifies Sublessor of Sublessee's intention not to renew this Sublease at least sixty (60) days
prior to the expiration of the Initial Term or then -existing Extension Term, or Sublessor
exercises their right to terminate the Sublease pursuant to paragraph 7.
4. Rent: Commencing on the Commencement Date, Sublessee will pay the Sublessor an annual
rental payment of Six hundred and Fifty and No/100 Dollars ($650.00) ("Rent") to Yakima City
Treasurer, 129 N. 2"d Street, Yakima, WA 98901.
a. In year two (2) of the Initial Term, and each year thereafter, including throughout any
Extension Terms, the annual Rent will increase by Four percent (4%) over the Rent paid
during the previous year and shall be paid within thirty days of the anniversary of the
Commencement Date .
b. If this Sublease is terminated at a time other than the annual anniversary of the
Commencement Date by the Sublessor, Rent shall be prorated as of the date of
termination, unless such termination is due to failure to make the rent payment or
default by the Sublessee of the provisions of this Sublease. Termination by the
Sublessee at any time will not be subject to proration, unless such termination is due to
default by the Sublessor of the provisions of this Sublease.
5. Interference:
a. Sublessee shall not use any portion of the Property in any way that interferes with the
operations of Sublessor's or other Sublessee's use of the Property, so long as Sublessor
and other Sublessor's do not operate within Sublessee's licensed frequencies. Such
interference by Sublessee shall be deemed a material breach by Sublessee and
Sublessee shall have the responsibility to terminate said interference immediately after
receipt of notice from Sublessor. In the event any such interference does not cease
promptly, and such interference is caused by Sublessee, Sublessor has the right to (i)
demand that Sublessee immediately cease using the interfering equipment, or (ii)
terminate this Sublease immediately and require cessation of all operations on the
Premises by Sublessor and the immediate removal of all of Sublessee's property on the
Premises.
b. Sublessor shall not use any portion of the Site, nor shall Sublessor permit its Sublessee's,
licensees, invitees or agents to use any portion of the Site, in any way that interferes
with the operations of Sublessee. Such interference shall be deemed a material breach
by Sublessor if such interference is not cured within 72 hours after notice from
Sublessee. In such event, Sublessee shall be limited in its action against Sublessor to
bringing an action to enjoin such interference or terminate this Sublease upon notice to
Page 2 of 9 WSDOT 5-39-15243
Sublessor. Sublessor shall not in any event be responsible for lost profits, lost revenues,
loss of goodwill or consequential damages to Sublessee.
c. It will be presumed that existing equipment on Site will not interfere with new
equipment. It will be the duty of the party installing new equipment to ensure the new
equipment does not interfere with any existing equipment that is on Site and
operational.
6. Access:
a. Sublessor shall provide Sublessee ingress, egress, and access suitable for vehicle travel
between the Premises and Lookout Point Road at no additional charge. The breach of
this provision will not result in any liability to Sublessor for lost profits, lost revenues,
lost goodwill or any consequential damages.
7. Termination: Except as otherwise provided herein, this Sublease may be terminated, without
any penalty or further liability, on sixty (60) days written notice as follows: (a) by either party
upon a default of any covenant or term hereof by the other party, which default is not cured
within sixty (60) days of receipt of written notice of default (without, however, limiting any
other rights available to the parties pursuant to any other provision hereof); (b) by Sublessee if
it is unable to obtain or maintain any license, permit or other Governmental Approval necessary
to the construction and/or operation of the Communications Facilities or Sublessee's business;
(c) by Sublessee if the Premises are or become unacceptable under Sublessee's design or
engineering specifications for its Communications Facilities or the communications system to
which the Communications Facilities belong; (d) by Sublessor should approval of sublease by
Fairpoint Communications be denied pursuant to the Master Lease Agreement; or (e) by
Sublessor if Sublessor determines that it is in the best interest of the City of Yakima in meeting
their primary mission of providing emergency communications to terminate this Sublease.
Should Part (e) be exercised, the Sublessor will provide one hundred -eighty (180) days written
notice unless emergency circumstance require otherwise, or such longer period of time as is
mutually agreed by Sublessee and Sublessor to find an alternate location.
8. Taxes: Sublessee shall pay before delinquency any personal property taxes assessed on, or any
portion of such taxes attributable to the Communications Facilities. Sublessee shall pay to
Sublessor, within sixty days' notice from Sublessor, any increase in real property taxes levied
against the Premises which is directly attributable to Sublessee's use of the Premises and the
Sublessor agrees to furnish proof of such increase to Sublessee. Sublessee shall pay before
delinquency all other taxes and assessments including but not limited to the leasehold excise
tax (RCW 82.29A) which may be assessed against Sublessor or Sublessee as a result of
Sublessee's use of the Premises.
9. Insurance:
Page 3 of 9 WSDOT 5-39-15243
During the term of this Agreement, the State of Washington, to include all its agencies
and departments (which includes WSDOT), shall be self-insured for all exposure to general
liability and vehicle liability as provided in Ch. 4.92 RCW and RCWs 43.41.280 through 43.41.350,
including such liability coverage for its use of the Premises owned by the County, such liability
coverage (between self-insurance and excess insurance) to include public liability coverage for
bodily injury, property damage, and personal injury of not less than TWO MILLION DOLLARS and
NO/100 ($2,000,000.00) combined single limit per occurrence, with a general aggregate amount
of not less than FOUR MILLION DOLLARS and NO/100 ($4,000,000.00) per policy period. The
State of Washington shall remain continuously self-insured up to a predetermined self-insurance
retention level at which point excess insurance provides coverage. The self-insurance retention
level at which point excess insurance provides coverage. The self-insurance program shall remain
funded by a liability account established by RCW 4.92.130 and financed by annual premiums
assessed to state agencies, including WSDOT. In the event the State of Washington, after
commencement of this Agreement, elects to terminate its self-insurance status of that of WSDOT
and secure commercial liability coverage, WSDOT shall promptly notify County, and provide a
certification of insurance from an insurer licensed to conduct business in the State of Washington.
Coverage, if obtained by WSDOT in compliance with this section shall not be deemed as having
relieved WSDOT of any liability.
10. Destruction of Premises: If the Premises or the Communications Facilities are destroyed or
damaged so as, in Sublessee's judgment to hinder the effective use of the Communications
Facilities, Sublessee may elect to terminate this Sublease as of the date of the damage or
destruction by so notifying Sublessor not more than 45 days following the date of damage. In
such event, all rights and obligations of the parties shall cease as of the date of the damage or
destruction and Sublessee shall be entitled to the reimbursement of rent paid for that month by
Sublessee.
11. Condemnation: If a condemning authority takes all of the Property, or a portion sufficient, in
Sublessee's determination, to render the Premises unsuitable for the use which Sublessee was
then making of the Premises, this Sublease shall terminate as of the date the title vests in the
condemning authority. The parties shall be entitled to share in the condemnation proceeds in
proportion to the values of their respective interests in the Premises. Sale of all or part of the
Premises to a purchaser with the power of eminent domain in the face of the exercise of the
power, shall be treated as a taking by condemnation.
12. Hold Harmless: Sublessee agrees to defend, indemnify and to hold Sublessor and FairPoint
harmless from any and all loss, cost, liability, or damage (including reasonable attorney's fees)
arising by reason of the willful misconduct or negligence of Sublessee, except for claims arising
from the negligence or willful misconduct of Sublessor or FairPoint, or their respective agents
and independent contractors.
Page 4 of 9 WSDOT 5-39-15243
13. Notices: All 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,
or sent by overnight carrier to the following:
If to Sublessor, to:
City of Yakima
Attn.: Information Technology Services Manager
129 N. 2nd Street
Yakima, WA 98901
If to Sublessee, to:
Washington State Department of Transportation
Attn: Property Management Program Manager
P.O. Box 47338
Olympia, WA 98504-7338
(Physical Address)
Attn.: Property Management Program Manager
7345 Linderson Way S.W.
Tumwater, WA 98501-7384
14. Warranties, Title, and Quiet Enjoyment: Sublessor warrants that (a) it has full right, power
and authority to execute this Sublease subject to the terms of the Master Agreement; (b) the
Property constitutes a legal lot that may be subleased without the need for any subdivision or
platting approval or other third party approval; (c) Sublessor's execution and performance of
this Sublease will not violate any laws, ordinances, covenants, or the provisions of any other
agreement binding on the Sublessor; (d) the legal description of the Property contained in
Exhibit A is accurate; (e) the Property is not and will not be encumbered by any liens,
restrictions, mortgages, covenants, conditions, easements, leases, or any other agreements of
record or not of record which would adversely affect Sublessee's use and enjoyment of the
Premises under this Sublease; (f) Sublessor grants to Sublessee sole, actual, quiet and peaceful
use, enjoyment, and possession of the Premises without hindrance or ejection by any persons
or entities lawfully claiming superior interest in the Property; (g) to the best of Sublessor's
knowledge, neither FairPoint nor Sublessor is, or with the giving of notice, or passage of time
(or both), will be in default under any of the terms or conditions of the Master Agreement; (h)
that during the Term, Sublessor will not terminate, materially modify, amend or assign the
Master Agreement in a manner which adversely affects the rights or obligations of Sublessee
without the prior written consent of Sublessee; and (i) Sublessor shall timely perform and
comply with all the terms and conditions of the Master Agreement, and not do anything nor
permit anything that would result in a default under or cause the 'Master Agreement to be
terminated.
Page 5 of 9 WSDOT 5-39-15243
15. Assignment: Sublessee may assign or sublet this Sublease upon notice to Sublessor. Any
sublease that is entered into by Sublessee shall be subject to the provisions of this Sublease and
the Master Agreement. Additionally, Sublessee may, upon notice to Sublessor, mortgage or
grant a security interest in this sublease and the Communications Facilities, and may assign this
Sublease and Communications Facilities to any such mortgagees or holders of security interests
including their successors or assigns (here after collectively referred to as "Mortgagees"). In
such event, Sublessor shall execute such consent to leasehold financing as may reasonably be
required by Mortgagees. Sublessor agrees to notify Sublessee and Sublessee's Mortgagee's
simultaneously of any default by Sublessee and to give Mortgagees the same right to cure any
default by Sublessee except that the cure period for any Mortgagees shall not be less than
ten(1O) days after receipt of the default notice.
16. The Master Agreement: Sublessee acknowledges that all rights of Sublessor to offer to
sublease a portion of the Property are derived from the "Lease Agreement for Look Out Point
Communications Site," dated September 6, 2016 by and between the City of Yakima and
Ellensburg Telephone Company, d/b/a FairPoint Communications, a Washington corporation.
No good -faith act or omission by Sublessor reasonably required of Sublessor under the Master
Agreement shall be deemed a breach by Sublessor of this Sublease. In the event of termination
of the Master Agreement for any reason this Sublease shall terminate, and Sublessee shall have
no cause of action on account of said termination, unless such termination is the result of
Sublessor's breach of Section 14 herein.
17. Successors and Assigns: This Sublease shall be binding upon and inure to the benefit of the
parties, their respective successors, personal representatives, and assigns.
18. Work on the Tower: Each of the parties to this Sublease and their employees and agents
assume the risk of working on the Tower equipment and the Premises associated with the
Sublease. Further, to the extent permitted under applicable law, each of the parties agrees to
indemnify, defend and hold harmless the other Party from any injury incurred while working on
the Tower equipment and Premises unless the injury is caused by neglect or an willful
misconduct of the other party or the other party's agent or employee. This paragraph has full
force and effect irrespective of who owns the Tower equipment or Premises.
19. Restoration of Premises upon Abandonment or Termination: All rights hereunder shall cease
and terminate if and when use of the Property for purposes herein shall have been abandoned,
and two year's non-use thereof shall be conclusive evidence, of such abandonment. Upon
abandonment or termination of Sublease by expiration or breach or otherwise, Sublessee shall
restore the Property to a condition reasonably satisfactory to Sublessor; and further provided
that the Property need not be restored to a better condition than that existing at the
commencement of this Sublease. Sublessee shall have a reasonable amount of time after any
Page 6 of 9 WSDOT 5-39-15243
such termination to remove any of its Communication Facility located on the Property, and if it
does not do so, all remaining property shall become the property of Sublessor.
20. Liens for Labor or Material: Sublessee shall keep the Property free and clear of mechanic's
liens and any and all other liens for labor and materials caused to be used on the Property by
Sublessee.
21. Miscellaneous:
a. The substantially prevailing party in any litigation arising hereunder shall be entitled to
its reasonable attorney's fees and court costs, including appeals, if any.
b. This Sublease constitutes the entire agreement and understanding of the parties, and
supersedes all offers, negotiations and other agreements. There are no representations
or understandings of any kind not set forth herein. Any amendments to this Sublease
must be in writing and executed by both parties.
c. If either party is represented by a real estate broker in this transaction, that party shall
be fully responsible for any fee due such broker, and shall hold the other party harmless
from any claims for commission by such broker.
d. Sublessor agrees to cooperate with Sublessee in executing any documents (including a
Memorandum of Sublease) necessary to protect Sublessee's rights hereunder or
Sublessee's use of Premises.
e. This Sublease shall be construed in accordance with the law of the state Washington.
Venue shall be in Yakima County, Washington.
f. If any term of this Sublease is found to be void or invalid, such invalidity shall not affect
the remaining terms of this sublease, which shall continue in full force and effect.
DATED as the date first set forth above.
SUBLESSOR: City of Yakima
Oel
Signature Sigyature
SUBLESSEE: Washington State'Department of Transportation
/
Cliff Moore
Hollie Rogge
Name Name
City Manager
Acquisition Program Manager
Title Title
cm), coaraact tut / 74-0 /
RESOLUTION NO: n/a
Page 7 of 9 WSDOT 5-39-15243
EXHIBIT A
LEGAL DESCRIPTION
.f;
To the Site Sublease Agreement dated this %AJ day of 'Pe , 2017 by and between the
City of Yakima, as Sublessor, and Washington State Department of Transportation as Sublessee.
The Premises are legally described as follows:
That portion of the Southeast Quarter, of the Northeast Quarter, of Section 11, Township 13 North,
Range 18 East, W.M., Yakima County, Washington, described as follows:
Commencing at the southeast corner of said Section 11 as shown on a record of survey, filed under
auditors file number 2752846, and recorded in book 39 of surveys, at page 90, records of Yakima County
Auditor; thence north 0°35' 47" west along the east line of said section 2647.78 feet: thence south 89°
15' 35" west 573.75 feet; thence north 58° 02' 54" west 769.70 feet; thence north 31° 57' 06" east
165.00 feet to the true point of beginning; thence north 31° 57' 06" east 75.00 feet; thence north 58° 02'
54" west 50.00 feet; thence south 31° 57' 06" west 75 feet; thence south 58° 02' 54" east 50.00 feet to
the said point of beginning.
Including an access road suitable for vehicular travel between the leased premises and Lookout Point
Road.
Page 8 of 9 WSDOT 5-39-15243
EXHIBIT B
Description of Sublessee's Use of Premises
To the Site Sublease Agreement dated this
/ay of Dec- , 2017 by and between the City of
Yakima, as Sublessor, and Washington State Department of Transportation as Sublessee.
Sublessee shall install an integrated radio/antenna unit at approximately the 36' level on the existing
tower. This point-to-point system will operated in the 4.9Ghz band at an azimuth of 105.2 degrees.
An AC POE device and a lightening surge protector will be mounted within the communications
building.
Page 9 of 9 WSDOT 5-39-15243
After recording return document to:
State of Washington
Department of Transportation
Real Estate Services Office
PO Box 47338
Olympia, WA 98504-7338
PLEASE MAKE NO MARK IN THE MARGIN SPACE - RESERVED FOR COUNTY AUDITOR'S USE
Document Title: Memorandum of Lease Agreement
Reference No. of Related Documents: N/A
Sublessor: City of Yakima
Sublessee: State of Washington, Department of Transportation
Legal Description: S11, T13N, R18E, W.M., Yakima County, WA.
Additional Legal Description is on Page 4 of Document.
Assessor's Tax Parcel Number: 181311-13004
MEMORANDUM OF LEASE AGREEMENT
Lookout Point Communication Site
This Memorandum of ase Agreement refers to that certain Lease Agreement entered into on
the 1 , day oft . , 'P 117, between City of Yakima, (hereinafter called "SUBLESSOR")
and the State of Washington, acting by and through its Department of Transportation
(hereinafter called "SUBLESSEE").
Premises. SUBLESSOR has leased to SUBLESSEE upon the terms and conditions of the Lease
Agreement the Premises, upon the following described lands situated in Yakima County,
Washington.
See attached Exhibit A made a part hereof and attached hereto.
Term. This Lease Agreement shall be effective from first of the month, (Commencement
Date), after this agreement is fully executed by both parties. The Initial Term will terminate on
the .last day of the month in which the fifth (5th) annual anniversary of the Term
Commencement Date occurs. Sublessee shall have the right to extend this Sublease for three
(3) additional five (5) year term(s).
FCR No.:
RES -331 Page 1 of (4) Pages IC No.: 5-39-15243
Revised_06110
PLEASE NIAKE NO MARK IN THE MARGIN SPACE - RESERVED FOR COUNTY AUDITOR'S USE ONLY.
MEMORANDUM OF LEASE AGREEMENT
Purpose. This MEMORANDUM OF LEASE AGREEMENT is prepared and recorded for
the sole purpose of imparting constructive notice of said Lease Agreement and in no way
modifies the Lease Agreement.
Questions. Questions regarding this Lease Agreement may be addressed to the State of
Washington, Department of Transportation, Real Estate Services at , P.O. Box 47338,
Olympia, WA 98504-7338.
Dated: 1,1 (,-i
CITY OF YAKIMA
By:
Cliff Mere
City Manager
Dated: j 1 I i (f /17
STATE OF WASHINGTON
DEPARTME T OF TRANSPORTATION
ie Rogge,
A quisition 'rggramManager
RES -331 Page 2 of (4) Pages ICN: 5-39-15243
PLEASE MAKE NO MARK IN THE MARGIN SI'ACE - RESERVED FOR COUNTY AUDITOR'S USE ONLY.
PLEASE MAKE NO MARK IN THE MARGIN SPACE - RESERVE'? FOR COUNTY AUDITOR'S USE ONLY.
MEMORANDUM OF LEASE AGREEMENT
STATE OF WASHINGTON )
ss)
COUNTY OF THURSTO'�N" )
On this 11 day of Q.St\\At .v' , 2017 before me personally appeared Hollie Rogge,
to me known to be the Acquisition Program Manager, for the State of Washington, acting by
and through its Department of Transportation, and that she executed the within and foregoing
instrument and acknowledged the said instrument to be the free and voluntary act and deed of
said state of Washington, for the uses and purposes therein set forth, and on oath states that
she is authorized to execute said instrument.
GIVEN under welittrtrei4gil official seal the day and year last abo = written.
(SEAL � �. ;06s�oni'�+, I'S
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WASH�;�o`'�,
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(Signa re)
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(Print Name)
Notary Public in and for the State of
Washington, residing at („)(--A-vciT
My commission expires 1-s---2,-1
4 -
STATE OF WASHINGTON )
: ss)
COUNTY OF YAKIMA )
On this (.c day of peev'Yi Lx -V 2017 before me personally appeared Cliff Moore,
to me known to be the City Manager, for the City of Yakima, and that he executed the within
and foregoing instrument and acknowledged the said instrument to be the free and voluntary
act and deed of said state of Washington, for the uses and purposes therein set forth, and on
oath states that he/she is authorized to execute said instrument.
GIVEN under my hand and official seal the day and year last above written.
���\\ tllllllnl o�
(SEAL) �GPv\S ..N�%�
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NOTARY.
PUBLIC j )_`
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RES -331
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aiR. Price_
(Print Na�'ne)
Notary Public in and for the,S ate of
Washington, residing at (- moi Ute%
My commission expir
Page 3 of (4) Pages
ICN: 5-39-15243
PLEASE MAKE NO MARK IN THE MARGIN SPACE - RESERVED FOR COUNTY AUDITOR'S USE ONLY
PLEASE MAKE NO MARK IN THE MARGIN SPACE - RESERVED FOR COUNTY AUDITOR'S USE ONLY.
MEMORANDUM OF LEASE AGREEMENT
EXHIBIT A �J \ /��
To the Site Sublease Agreement dated this )k� day ofe1�2J�1�°s'�017 by and
between the City of Yakima, as Sublessor, and Washington State Department of
Transportation as Sublessee.
The Premises are legally described as follows:
That portion of the Southeast Quarter, of the Northeast Quarter, of Section 11, Township 13
North, Range 18 East, W.M., Yakima County, Washington, described as follows:
Commencing at the southeast corner of said Section 11 as shown on a record of survey, filed
under auditors file number 2752846, and recorded in book 39 of surveys, at page 90, records
of Yakima County Auditor; thence north 0°35' 47" west along the east line of said section
2647.78 feet: thence south 89° 15' 35" west 573.75 feet; thence north 58° 02' 54" west
769.70 feet; thence north 31° 57' 06" east 165.00 feet to the true point of beginning; thence
north 31° 57' 06" east 75.00 feet; thence north 58° 02' 54" west 50.00 feet; thence south 31°
57' 06" west 75 feet; thence south 58° 02' 54" east 50.00 feet to the said point of beginning.
Including an access road suitable for vehicular travel between the leased premises and
Lookout Point Road.
RES -331 Page 4 of (4) Pages ICN: 5-39-15243
PLEASE MAKE NO MARK IN THE MARGIN SPACE - RESERVED FOR COUNTY AUDITOR'S USE C)NLY