HomeMy WebLinkAbout12/10/2024 07.N. Resolution authorizing a lease agreement with Yakima MSA Limited Partnership for a tower and ground space lease located at Fire Station 93 r `y � ljlt
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BUSINESS OF THE CITY COUNCIL
YAKIMA, WASHINGTON
AGENDA STATEMENT
Item No. 7.N.
For Meeting of: December 10, 2024
ITEM TITLE: Resolution authorizing a lease agreement with Yakima MSA Limited
Partnership for a tower and ground space lease located at Fire Station
93
SUBMITTED BY: Aaron Markham, Fire Chief
SUMMARY EXPLANATION:
The Lease Agreement is a renewal to allow Yakima MSA Limited Partnership to continue to utilize the
tower and ground space that they have been using since 1999.
ITEM BUDGETED: No
STRATEGIC PRIORITY 24-25: An Engaged Yakima
RECOMMENDATION: Adopt Resolution.
ATTACHMENTS:
Resolution
Cell tower lease.pdf
MOL.pdf
147
RESOLUTION NO. R-2024-
A RESOLUTION authorizing the City Manager to execute a Lease Agreement with Yakima
MSA Limited Partnership for attachment locations upon the tower located
at Fire Station 93 with an address of 511 N. 40th Avenue as well as a
parcel of ground space adjacent to the base of the Tower.
WHEREAS, the City owns a 50' tall tower located on a parcel of land at Fire Station 93
with an address of 511 N. 40th Avenue; and
WHEREAS, the City has leased the tower and ground space to Yakima MSA Limited
Partnership since 1999, when it originally entered into the Lease for the tower and ground space
for a term of 20 years, with the opportunity for the Lessee to renew for one additional 5-year term;
and
WHEREAS, the current tower and ground space lease is set to terminate on December
31, 2024; and
WHEREAS, Yakima MSA Limited Partnership currently occupies and desires to continue
to occupy attachment locations at the height of 51' and a parcel of ground space adjacent to the
base of the tower measuring approximately 15 feet by 30 feet and wishes to continue leasing the
space from the City; and,
WHEREAS, the City and Yakima MSA Limited Partnership have negotiated a lease set
forth in the "TOWER AND GROUND SPACE LEASE" attached hereto; and
WHEREAS, the City Council finds that entering a tower and ground space lease
agreement with Yakima MSA Limited Partnership under the proposed terms and conditions is in
the best interests of the City of Yakima and its residents; now, therefore,
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA:
The City Manager is hereby authorized to execute and administer the attached and
incorporated Tower and Ground Space Lease Agreement with Yakima MSA Limited Partnership,
which lease agreement is attached hereto and incorporated herein.
ADOPTED BY THE CITY COUNCIL this 10th day of December, 2024.
Patricia Byers, Mayor
ATTEST:
Rosalinda Ibarra, City Clerk
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TOWER AND GROUND SPACE LEASE
This Tower and Ground Space Lease (the "Lease") is made by and between City of
Yakima, whose address is 200 S. Third Street, Yakima, Washington 98901, hereinafter referred
to as "Landlord", and Yakima MSA Limited Partnership, Attention: Real Estate Lease
Administration, 8410 West Bryn Mawr Avenue, Chicago, Illinois 60631, hereinafter referred to
as "Tenant".
WHEREAS, Landlord owns a 50' tall tower (the "Tower") located on a parcel of land
(the "Site"), at a Latitude of 46-36-22.7 and Longitude 120-33-39.2 (NAD 83), with an address
of 511 N. 40th Avenue in the City of Yakima, in Yakima County, State of Washington, as such
Site is legally described on Exhibit A attached hereto and made a part hereof.
WHEREAS, Tenant desires to occupy, and Landlord is willing to provide, attachment
locations upon the Tower and Ground Space (as hereinafter defined) at the Site for Tenant's
cellular common carrier mobile radio base station operations, including related
telecommunications functions.
NOW, THEREFORE, in consideration of the mutual promises, conditions, and other
good and valuable consideration of the parties hereto, it is covenanted and agreed as follows:
1. Grant of Lease.
a. Landlord hereby grants to Tenant the following described premises (the "Premises")
together with unrestricted access, subject to Section 19 of this Lease, for Tenant's uses
from the nearest public right-of-way along the Site:
(i) Attachment locations upon the Tower at an approximate height of
51' for the placement and affixing of twelve cellular antennas, nine
remote radio heads and four surge protection devices, at the heights
and orientations shown on Exhibit B attached hereto; and
(ii) A parcel of ground space adjacent to the base of the Tower,
measuring approximately 15 feet by 30 feet as shown on Exhibit C
attached hereto (the "Ground Space"), for the placement of a radio
station equipment shelter ("Tenant's Building") upon a poured
concrete foundation.
b. During the Lease Term and any Renewal Term (as hereinafter defined) of this Lease,
and subject to Section 19, Tenant and its agents, engineers, surveyors and other
representatives will have the right to enter upon the Site to inspect, examine, conduct
soil borings, drainage testing, material sampling, and other geological or engineering
tests or studies of the Site (collectively the "Tests"), to apply for and obtain licenses,
permits, approvals, or other relief required of or deemed necessary or appropriate at
Tenant's discretion for its use of the Premises and include applications for zoning
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variances, zoning ordinances, amendments, special use permits, and construction
permits (collectively referred to as "Governmental Approvals"), and otherwise to do
those things on or off the Site that, in the opinion of Tenant, are necessary in Tenant's
discretion to determine the physical condition of the Site, the environmental history of
the Site, Landlord's title to the Site, and the feasibility or suitability of the Site for
Tenant's permitted use, all at Tenant's expense. Tenant will not be liable to Landlord
or any third party on account of any pre-existing defect or condition on or with respect
to the Site, whether or not such defect or condition is disclosed by Tenant's inspection.
2. Licenses. Landlord hereby confers upon Tenant the following described nonexclusive
License to accomplish the following, subject to the terms and conditions of this Lease:
a. To place and affix such lines, conduits, connections, devices, and equipment for
the transmission, reception, encryption and translation of voice and data signals by
means of radio frequency energy and landline carriage, including lines for signal
carriage between the Ground Space and the Tower Space (all such items, along
with the items attached on Exhibit B hereto, are collectively referred to herein as
the "Equipment"), as Tenant deems necessary or desirable for the conduct of
Tenant's business, subject to Landlord's prior consent to any significant changes
which Tenant may from time to time propose to make to said Equipment, which
consent shall not unreasonably be withheld or delayed;
b. To extend and connect utility lines between Tenant's Building and suitable utility
company service connection points;
c. To travel between the Premises and the public road over the Site. Tenant will
operate its Equipment in such a manner as to not interfere with Landlord's use of
the Site or the Tower for public safety purposes associated with Yakima Fire
Department operations as well as interference with any use of radio frequencies or
interference with communications for public safety purposes at any time; and
d. To traverse other portions of the Site as is reasonably necessary to access, repair
and maintain the Premises or otherwise to accomplish Tenant's purposes as
contemplated herein, notice of which should be provided to Landlord in advance,
except in cases of emergency, said notice shall describe the proposed work and the
location of the work on the Site. Use of Premises. Tenant shall be entitled to use
the Premises to install, operate, and maintain thereon a cellular common carrier
mobile radio base station, including system networking, station control, back-up
power devices, legally required signage and performance monitoring functions,
but for no other use or purpose. Tenant's use of the Premises shall at all times
comply with and conform to all laws and regulations applicable thereto and this
Lease.
3. Initial Term. The initial Lease term will be five (5) years (the "Initial Term"),
commencing on November 2, 2024 ("Commencement Date") and terminating at
midnight on the day in which the fifth (5m) anniversary of the Commencement Date
falls.
4. Option to Renew. The Initial Term of this Lease may be extended for up to five (5)
additional terms of five (5) years each (each, a "Renewal Term(s)"), upon a
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continuation of all the same provisions hereof, if Tenant gives Landlord written notice
of Tenant's intention to renew at least one-hundred eighty (180) days before the
expiration of the Initial or any Renewal Term.
5. Rent.
a. Tenant shall pay Rent to Landlord in the amount of two thousand five hundred
($2,500.00) dollars per month, the first payment of which shall be due within thirty
(30) days of the Commencement Date, and installments thereafter on the first day of
each calendar month, provided that Landlord shall submit to Tenant a complete and
accurate IRS form W9 prior to Tenant's first payment of Rent. Landlord shall
specify the name, address, and taxpayer identification number of a sole payee (or
maximum two joint payees)who shall receive Rent on behalf of the Landlord. Rent
will be prorated for any partial month. Any change to the Payee must be requested
in accordance with the Notice provision herein, and a new IRS form W9 must be
supplied prior to payment by Tenant to the new Payee.
b. Tenant shall pay Landlord a late payment charge equal to five percent (5%) of the
late payment for any payment not paid when due. Any amounts not paid when due
shall bear interest until paid at the lesser of the rate of two percent (2%) per month
or the highest rate permitted by law.
6. Annual Rent Increase. The monthly Rent shall be increased on each anniversary of the
Commencement Date by three percent (3%) over the monthly Rent paid during the
previous lease year.
7. Tenant's Personal Property. Landlord acknowledges and agrees that all of Tenant's
Equipment and other personal property of Tenant kept or stored on the Premises by
Tenant constitute personal property, not real property, and shall continue to be the
personal and exclusive property of Tenant, and neither Landlord nor any person
claiming by, through or under Landlord shall have any right, title or interest (including
without limitation, a security interest) in Tenant's Equipment. Tenant, and Tenant's
successors in interest, shall have the right to remove Tenant's Equipment at any time
during the Term of this Lease or its earlier termination. With respect to the holder of
any mortgage, deed of trust or other lien affecting Landlord's interest in the Premises,
whether existing as of the date hereof or arising hereafter, Landlord and Tenant hereby
agree, acknowledge and declare that Tenant's Equipment is now and shall at all times
hereafter remain the personal and exclusive property of Tenant. The parties further
acknowledge and agree that Landlord shall have no right or authority to grant a lien
upon or security interest in any of Tenant's Equipment.
8. Tower Maintenance.
a. Landlord represents that it has the right and responsibility to repair and maintain the
Tower and surrounding property, including but not limited to, snow removal. If the
Tower is damaged for any reason, other than by reason of the willful misconduct or
negligence of Tenant or its agents, so as to render it substantially unusable for
Tenant's intended use, then Tenant shall have the right, but not the obligation, to
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terminate this Lease by giving Landlord written notice thereof and shall comply
with Tenant's removal obligations provided for in Section 28 "Surrender".
b. Tenant shall, at its own expense, maintain the Premises and any equipment on or
attached to the Premises in a safe condition, in good repair, and in a manner suitable
to Landlord so as not to conflict with the use of, or other leasing, of the Tower by
Landlord. Tenant shall not interfere with the facilities or other equipment of other
tenants or Landlord.
c. Tenant shall have sole responsibility for the maintenance, repair and security of its
equipment, personal property, leasehold improvements and directional antennae,
equipment building, connecting cables, and appurtenances, and Tenant shall keep
the same in good repair and condition during the term of the Lease, and as such
Lease terms may be renewed and extended.
d. Tenant shall keep the Premises and Site free of debris and anything of a dangerous,
noxious, or which would create a hazard or undue vibration, heat, or noise.
e. In the event the Landlord or any other tenant undertakes painting, construction,
repairs or other alterations on the Tower, Tenant shall take reasonable measures at
Tenant's cost to cover Tenant's equipment, personal property, leasehold
improvements, and directional antennae, equipment building, connecting cables,
and appurtenances of the Equipment and protect such from paint and debris fallout
which may occur during the painting, construction or alteration process. Landlord
shall notify Tenant at least thirty (30) days prior to any construction, painting, repair
or other alterations begun by Landlord or any other tenant, unless said painting,
construction, repair or alterations must be made on an emergency basis, in which
case Landlord shall notify Tenant as soon as practicable. Unless resulting from
negligent actions or omissions of, or willful misconduct of, Landlord, its
employees, agents or contractors, Landlord shall not be liable for any damage
incurred by Tenant from such painting, construction, repair or alterations.
f If applicable, Landlord shall have the right to request Tenant's relocation once
during period any ten (10) year period for the purpose of completing general
maintenance or painting to or on the Tower, so long as Landlord provides Tenant
with six (6) months advance notice in writing to Tenant of the general plans
regarding the anticipated maintenance. This notice requirement shall not affect any
situation where Landlord must request Tenant's relocation in the event of an
emergency as necessary to protect the health, safety, and welfare of visitors or
Landlord's other tenants. In the event of a relocation request under this Section,
Tenant agrees to cover the costs of relocating its equipment. Except in the case of
a public safety emergency where the Site is being used to accommodate emergency
personnel and/or equipment and no space at the Site is available due to the
emergency response activities, Landlord shall provide space at the Site satisfactory
to Tenant in order for Tenant to operate temporary cellular facilities during the
course of any maintenance that cannot be completed without Tenant's relocation.
Landlord shall take all steps possible to ensure that Tenant is off the Tower for the
minimum length of time possible.
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9. Aviation Hazard Marking. Landlord agrees to be solely responsible for full
compliance, at all times, with the Tower marking, lighting, maintenance, inspection,
recording, registration, and notification requirements of the Federal Communications
Commission ("FCC") and the Federal Aviation Administration ("FAA").
10. FCC and FAA Tower Registration. Landlord warrants to Tenant that the Tower has
been registered by the tower owner with the FCC and the FAA, if required by the FCC
and the FAA. Additionally, Landlord warrants to Tenant that in the event the FCC or
the FAA requires the Tower to be registered during the Term of this Lease or any
extensions thereof, Landlord shall take all necessary actions to register the Tower.
Landlord shall provide Tenant with a copy of the FCC and FAA tower registration
upon written request.
11. Utilities. Landlord shall ensure that utility services are accessible and available at the
Site for Tenant's intended use. Tenant shall be responsible for the separate metering,
billing, and payment of the utility services consumed by its operations.
12. Taxes. Tenant shall pay all personal property taxes, other taxes and assessments, if
any, assessed on, or any portion of, the Equipment or Tenant's use of the Premises.
Landlord shall pay, when due, all real property taxes and associated fees and
assessments attributable to the Property.
13. Access. Subject to the terms and conditions of this Lease, Tenant shall have 24-
hours/7-day access to the Premises to install, operate, repair and maintain its
Equipment.
14. Compliance with Laws. Subject to Sections 9 & 10, Tenant shall, at Tenant's cost and
expense, comply with all federal, state, county or local laws, rules, regulations and
ordinances now or hereafter enacted by any governmental authority or administrative
agency having jurisdiction over the Premises and Tenant's operations thereupon.
15. Mutual Indemnification.
a. To the extent permitted by law, Tenant agrees to release, defend, indemnify and
save harmless Landlord from and against all claims, losses, costs, expenses, or
damages from a third party, arising from
(i) The negligence or willful misconduct of Tenant, or its agents,
employees, or contractors; or
(ii) Any material breach by Tenant of any provision of this Lease. This
indemnity and hold harmless agreement will include indemnity
against all reasonable costs, expenses, and liabilities incurred in or in
connection with any such claim, and the defense thereof.
Notwithstanding the foregoing, Tenant will have no liability to
Landlord to the extent any claims, losses, costs, expenses, or
damages arise out of or result from any act, omission, or negligence
of Landlord, or of Landlord's agents, employees or contractors.
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b. To the extent permitted by law, Landlord agrees to release, defend, indemnify and
save harmless Tenant from and against all claims, losses, costs, expenses, or
damages from a third party, arising from
(i) The negligence or willful misconduct of Landlord or its agents,
employees, or contractors; or
(ii) Any material breach by Landlord of any provision of this Lease. This
indemnity and hold harmless agreement will include indemnity
against all reasonable costs, expenses, and liabilities incurred in or in
connection with any such claim, and the defense thereof.
Notwithstanding the foregoing, Landlord will have no liability to
Tenant to the extent any claims, losses, costs, expenses, or damages
arise out of or result from any act, omission, or negligence of Tenant,
or of Tenant's, agents, employees or contractors.
16. Insurance.
a. Tenant shall maintain commercial general liability insurance insuring against liability
for bodily injury, death or damage to personal property with combined single limits of
Two Million and No/100 Dollars ($2,000,000)per occurrence and Four Million and
No/100 Dollars ($4,000,000) general aggregate. In addition, Tenant shall maintain
worker's compensation in statutory amounts, employer's liability insurance with
combined single limits of One Million and No/100 Dollars ($1,000,000); automobile
liability insurance insuring against claims for bodily injury or property damage with
combined single limits of Two Million and No/100 Dollars ($2,000,000); and all risk
property insurance covering all personal property of Tenant for full replacement value.
Tenant shall provide Landlord with evidence of such insurance in the form of a certificate
of insurance and additional insured endorsement prior to the start date of this Lease and
throughout the term of this Lease or any Renewal Term. The certificate and endorsement
shall name the City of Yakima, its elected and appointed officials, employees, agents,
attorneys and volunteers as additional insureds. The insurance shall be with an insurance
company or companies rated A-VII or higher in Best's Guide and admitted in the State of
Washington.
b. Landlord shall maintain general liability insurance insuring against liability for
bodily injury, death or damage to personal property with combined single limits of
Two Million and No/100 Dollars ($2,000,000) per occurrence and Four Million and
No/Dollars ($4,000,000) general aggregate as well as all risk property insurance
covering all Landlord fixtures, improvements, and personal property at full
replacement value with commercially reasonable deductibles. In addition, to the extent
required by law, Landlord shall maintain worker's compensation in statutory amounts
and employer's liability insurance with combined single limits of One Million and
No/100 Dollars ($1,000,000). Landlord shall provide Tenant with evidence of such
insurance in the form of a certificate of insurance prior to Tenant obtaining occupancy
and throughout the term of this Lease or any Renewal Term.
17. Interference.
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a. Use of the Tower, Premises, and/or Site by Tenant shall not interfere with the
licensed frequencies used by the Yakima Fire Department, public safety personnel,
or City of Yakima.
b. Except as outlined in section (a) Landlord shall not use, nor shall Landlord permit
its tenants to use, the Tower or the Site in a way that unreasonably interferes with
the operations of Tenant. Such interference shall be deemed a material breach by
Landlord, and Landlord shall have the responsibility to promptly cause any such
interference to be eliminated. If said interference cannot be eliminated within
twenty-four (24) hours after receipt of notice that such interference is occurring,
Landlord shall discontinue or cause to be discontinued the operation of any
equipment causing the interference until the same can be corrected. In the event
any such interference does not cease promptly after Landlord's receipt of notice of
said interference, Tenant shall have the right, in addition to any other right that it
may have at law or in equity, to enjoin such interference or to terminate this Lease.
c. Tenant shall not use the Tower or the Site in a way that unreasonably interferes with
the operations of the Landlord. Such interference shall be deemed a material
breach by Tenant, and Tenant shall have the responsibility to promptly cause any
such interference to be eliminated. If said interference cannot be eliminated within
twenty-four (24) hours after receipt of notice that such interference is occurring,
Tenant shall discontinue or cause to be discontinued the operation of any Tenant
Equipment causing the interference until the same can be corrected. In the event
any such interference does not cease promptly after Tenant's receipt of notice of
said interference, Landlord shall have the right, in addition to any other right that it
may have at law or in equity, to enjoin such interference or to terminate this Lease.
18. Default. Tenant shall be in default of this Lease if Tenant fails to make a payment of
rent when due and such failure continues for ten (10) days after Landlord notifies
Tenant in writing of such failure. If Landlord or Tenant fails to comply with any
provision of this Lease, other than Tenant's failure to pay rent, the other party shall
serve written notice of such failure upon the defaulting party, whereupon a grace
period of thirty (30) days shall commence to run during which the defaulting party
shall undertake and diligently pursue a cure of such failure at its sole cost and expense.
Such grace period may be extended for an additional thirty (30) days, provided the
defaulting party makes a good faith showing that substantial efforts toward a cure are
continuing. This Section shall not apply in the case of interference, which instead shall
require immediate and effective curative action in accordance with Section 19 hereof.
19. Attorneys' Fees and Expenses. In the event of any litigation arising under this Lease,
to the extent authorized by applicable statute, the non-prevailing party shall, upon demand,
reimburse the prevailing party for all costs and expenses arising therefrom, including
reasonable attorneys' fees.
20. Quiet Enjoyment. Landlord covenants that Tenant shall have quiet and peaceable
possession of the Premises throughout the Initial Lease Term and any Renewal Term,
if any, as the case may be, and that Landlord will not intentionally disturb Tenant's
enjoyment thereof as long as Tenant is not in default under this Lease.
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21. Title, Access and Authority. Landlord covenants and warrants to Tenant that Landlord
presently owns a legally defined interest in and to the Site; that the Premises are served
by legal access from a public way; that Landlord is duly authorized and empowered to
enter into this Lease; and that the person executing this Lease on behalf of the
Landlord warrants themselves to be duly authorized to bind the Landlord hereto.
22. Assignment of Tenant's Interest. This Lease and the Premises hereunder are
assignable by the Tenant with written notice to Landlord but without the necessity of
obtaining Landlord's consent, to the following: (i) any person or business entity which
is a parent, subsidiary, or affiliate of Tenant; (ii) any person or business entity which
controls or is controlled by or under a common control with Tenant; (iii) any person or
business entity which is merged or consolidated with Tenant; or, (iv) any person or
business entity which purchases a majority or controlling interest in the ownership or
assets of Tenant. Contact information for the assignee shall be provided to the
Landlord within fifteen (15) days of the effective date of the assignment. Any other
assignment of this Lease and the Premises hereunder by the Tenant shall not occur
without the Landlord's consent, which consent shall not be arbitrarily or unreasonably
withheld.
23. Environmental Warranty.
a. Landlord hereby represents and warrants to Tenant that, to the best of Landlord's
knowledge, Landlord has never generated, stored, handled, or disposed of any
hazardous waste or hazardous substances upon the Site, other than standard
cleaning supplies and required firefighting foam and other materials required for
the fighting of fires and related activities, and that Landlord has no knowledge of
such other uses historically having been made of the Site or other such substances
historically having been introduced thereupon. Notwithstanding the foregoing,
Landlord agrees to protect, indemnify and hold harmless Tenant from and against
any claims or losses arising out or related to the presence or release of any
hazardous substances at, on or beneath the Premises, whether existing prior to the
date hereof or migrating onto the Premises during any portion of the Term, except
to the extent caused by spilling, generating, handling, disposing, or releasing of
hazardous waste or substances, on the Premises or the Site, by Tenant, its agents,
employees, or contractors after the Commencement Date.
b. Tenant hereby represents and warrants to Landlord that Tenant never generated,
stored, handled, or disposed of any hazardous waste or hazardous substances upon
the Site, and that Tenant has no knowledge of such uses historically having been
made of the Site or such substances historically having been introduced thereupon
Notwithstanding the foregoing, Tenant agrees to protect, indemnify and hold
harmless Landlord from and against any claims or losses arising out or related to
the presence or release of any hazardous substances at, on or beneath the Premises,
whether existing prior to the date hereof or migrating onto the Premises during any
portion of the Term, except to the extent caused by spilling, generating, handling,
disposing, or releasing of hazardous waste or substances, on the Premises or the
Site, by Landlord, its agents, employees, or contractors or third parties after the
Commencement Date. Tenant may operate, use and store standard
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telecommunication products and equipment such as batteries in order to conduct
business at the Premises provided such use is in accordance with all applicable
environmental federal, state and local laws, requirements and regulations.
24. Compliance with FCC Radio Frequency Emissions Requirements.
a. It shall be the responsibility of Tenant to ensure that Tenant's use, installation, or
modification of Equipment at the Site does not cause radio frequency exposure
levels of all the existing equipment located at the Site and in the surrounding
vicinity (including the communications equipment, Landlord's equipment, and all
other transmitting equipment in the vicinity) to exceed those levels permitted by
the FCC. Landlord shall require other tenants installing equipment after the
installation of the communications equipment to bear the same responsibility.
b. Tenant agrees that in the event that there is any change to applicable rules,
regulations, and procedures governing exposure to radio frequency radiation
which place the Tower in non-compliance, Tenant will cooperate with Landlord
and other users of the Tower to bring the Tower into compliance, which
cooperation shall include, but not be limited to, sharing pro rata the costs
associated with bringing the Tower into compliance.
25. Subordination. Tenant agrees to subordinate this Lease to any mortgage or trust deed
which may hereafter be placed on the Premises, provided the mortgagee or trustee
thereunder shall ensure to Tenant the right to possession of the Premises and other
rights granted to Tenant herein so long as Tenant is not in default beyond any
applicable grace or cure period, such assurance to be in writing and otherwise in form
and substance reasonably satisfactory to Tenant. If requested by Tenant, Landlord
agrees to use Landlord's best efforts to assist Tenant in obtaining from any holder of a
security interest in the land underlying the Premises a non-disturbance agreement in
form reasonably satisfactory to Tenant.
26. Notices. Any notice, request or demand required or permitted to be given pursuant to
this Lease shall be in writing and shall be deemed sufficiently given if delivered by
messenger at the address of the intended recipient, sent prepaid by Federal Express (or
a comparable guaranteed overnight delivery service), or deposited in the United States
first class mail (registered or certified, postage prepaid, with return receipt requested),
addressed to the intended recipient at the address set forth below or at such other
address as the intended recipient may have specified by written notice to the sender in
accordance with the requirements of this paragraph. Any such notice, request, or
demand so given shall be deemed given on the day it is delivered by messenger at the
specified address, on the day after deposit with an overnight delivery service, on the
date the delivery is refused, or on the day that is five (5) days after deposit in the
United States mail, as the case may be.
TENANT: Yakima MSA Limited Partnership
Attention: Real Estate Lease Administration
8410 West Bryn Mawr Avenue
Chicago, Illinois 60631
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Phone: 1-866-573-4544
LANDLORD: City of Yakima
Attn: Fire Chief
129 N. 2nd St.
Yakima, WA 98902
Phone: (509) 575-6060
With a copy to: City of Yakima
Attn: City Attorney
200 S. Third Street
Yakima, WA 98901
27. Contingencies. Tenant shall have the right to terminate this Lease upon written notice
to Landlord, relieving both parties of all further obligations hereunder, if Tenant, acting
reasonably and in good faith, shall be unable to obtain any or all licenses or permits
required to construct its intended improvements upon the Premises or conduct Tenant's
business at the Premises at any time during the Term; if Tenant's technical reports fails
to establish to Tenant's satisfaction that the Premises are capable of being suitably
engineered to accomplish Tenant's intended use of the Premises; if the Premises are
taken by eminent domain by a governmental entity or a title commitment or report
obtained by Tenant with respect to the Premises shows as exceptions any
encumbrances or restrictions which would, in Tenant's opinion, interfere with Tenant's
intended use of the Premises.
28. Surrender. Upon the expiration or earlier termination of this Lease, Tenant shall
remove, within 60 days, all of Tenant's property, including any underground
improvements, from the Premises and surrender the Premises to Landlord in the same
condition as existed at the Commencement Date of this Lease, reasonable wear and
tear excepted.
29. Termination
a. Termination for Cause.
(i) In the event of any default of this Lease by Tenant and Tenant's failure to
cure as provided for in Section 18 above captioned "Default" the Landlord
may, at any time, after giving notice and Tenant's failure to cure, cure the
default for, and at the expense of, Tenant. If Landlord is compelled to pay,
or elects to pay, any reasonable sum of money or incurs any reasonable
expense required to cure said default, the sums or expenses so paid by
Landlord, with all interest, legal costs and reasonable attorney fees, shall
be deemed due from the Tenant to Landlord payable within thirty days
subsequent to Tenant's receipt of Landlord's written demand and
supporting documentation establishing such costs and expenses. In the
event of any default of this Lease by Tenant and Tenant's failure to cure as
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Site Name: Englewood Site Number: 348326
provided for in Section 20 above captioned "Default" Landlord shall have
the right, at its option, in addition to and not exclusive of any other remedy
to proceed to recover possession of the Premises under and by virtue of
the provisions of the laws of the jurisdiction in which the Premises is
located, ; and eject all persons therefrom, and terminate this Lease. All
prepaid rent payments received by Landlord from Tenant shall be retained
by Landlord. Upon such termination, this Lease shall become null and
void and the parties shall have no further obligations to each other. In the
event of termination, Tenant shall remove the Equipment in accordance
with Section 30 hereof. Re-entry and taking of possession of the Premises
in accordance with the laws of the jurisdiction in which the Premises, by
the Landlord, shall be construed as an election on Landlord's part to
terminate this lease.
(ii) Further, for purposes of the ability of Landlord to terminate for cause,
"cause" includes, but is not limited to, the City's determination that the
Premises, Site and/or Tower is needed for any public safety radio system.
In the event the cause of the termination is such a determination, the
Landlord may terminate this Lease by giving at least one hundred eighty
(180) days in advance of the date of such termination.
(iii) Cure or termination by Tenant. Upon Landlord's failure to cure a default
within the time period provided for in Section 18, Tenant may, in addition
to all other rights and remedies available to Tenant at law, equity or
otherwise under this Lease, cure the same on behalf of Landlord,
whereupon the costs of such cure shall be immediately due and payable to
Tenant from Landlord upon written demand therefore by Tenant. If the
Landlord does not promptly reimburse the Tenant for such costs to cure,
the Tenant shall be allowed to offset the costs from the next scheduled
Rent payments until Tenant is so reimbursed. In addition to the foregoing,
Tenant shall retain such remedies at law or equity as a result of a Landlord
default. In addition to the same and without limitation of Tenant's rights
or damages, if said default is a life or safety related issue, or if said default
is detrimental to the Tenant's ability to conduct business in the Premises,
and if Landlord shall fail to cure said default in a proper manner, then
Tenant may elect to terminate this Lease. Upon such termination, this
Lease shall become null and void and the parties shall have no further
obligations to each other.
b. Termination for Convenience. Tenant shall have the unilateral right to terminate this
Lease at any time by giving Landlord written notice of the date of such termination
The Landlord may terminate this Lease for convenience by giving written notice at
least three hundred and sixty-five (365) days in advance of the date of such
termination.
c. The Indemnification obligations of each party contained in Section 15 and Tenant's
requirement to remove improvements as provided in Section 28 shall survive
termination of the Lease.
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Site Name: Englewood Site Number: 348326
30. Remedies. The parties shall be entitled to the application of all appropriate remedies
available to them under state and federal law in the enforcement of this Lease
31. Binding Effect. All of the covenants, conditions, and provisions of this Lease shall inure
to the benefit of and be binding upon the parties hereto and their respective successors and
assigns.
32. Execution of Other Instruments. Landlord agrees to execute, acknowledge, and deliver to
Tenant such other instruments respecting the Premises as Tenant or Tenant's lender may
reasonably request from time to time. Such instruments may include, but are not limited to, a
memorandum of lease that may be recorded in the appropriate local land records. Landlord
also agrees to cooperate with Tenant's efforts to obtain all private and public consents related
to Tenant's use of the Premises, including, but not limited to zoning and permitting
applications. Any expenses incurred by the Landlord to honor such requests for other
instruments shall be paid, in advance, by Tenant provided Landlord furnishes to Tenant
reasonable documentation establishing said expenses.
33. Invalidity of Particular Provision. If any term or provision of this Lease, or the
application of such term or provision to any person or circumstance, to any extent, is invalid
or unenforceable, the remainder of this Lease, or the application of such term or provision to
persons or circumstances other than those as to which it is invalid or unenforceable, will not
be affected and each term and provision of this Lease will be valid and be enforced to the
fullest extent permitted by law.
34. Governing Law and Venue. This Lease will be governed by and construed in
accordance with the laws of the State of Washington. Venue shall be in Yakima County.
35. Recording. Each party, on request of the other, agrees to execute a short form lease in
recordable form and complying with applicable laws and reasonably satisfactory to both
parties, which will be recorded in the appropriate public records at the cost of the requesting
party.
36. Headings. The section headings throughout this instrument are for convenience and
reference only, and are not to be used to explain, modify, amplify or aid in the
interpretation, construction or meaning of the provisions of this Lease.
37. Entire Agreement Waiver. This Lease constitutes the entire agreement of the parties
and may not be modified except in writing signed by the party against whom such
modification is sought to be enforced. No waiver at any time of any of the provisions of the
Lease will be effective unless in writing. A waiver on one occasion will not be deemed to be
a waiver at any subsequent time.
38. Modifications. This Lease may not be modified, except in writing signed by both
parties.
39. Errors and Omissions. Landlord and Tenant agree as part of the basis of their bargain
for this Lease to cooperate fully in executing any and all documents (including amendments
to this Lease) necessary to correct any factual or legal errors, omissions, or mistakes, and to
take any and all additional action, that may be necessary or appropriate to give full force and
effect to the terms and intent of this Lease.
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Site Name: Englewood Site Number: 348326
40. Non-binding until Full Execution. Both parties agree that this Lease is not binding
either party until both parties execute the Lease.
41. Electronic Reproductions. The Parties agree that a scanned or electronically reproduced
copy or image of this Lease, as executed, shall be deemed an original and may be introduced
or submitted in any action or proceeding as competent evidence of such agreement,
notwithstanding the failure or inability of either party to produce or tender an original
executed counterpart.
42. Records Retention. Landlord is required by law to comply with the Washington State
Public Records Act(PRA), Chapter 42.56 RCW. Tenant therefore acknowledges and agrees
that this Lease and documents related to this Lease or the use of City property may also be
subject to the Public Records Act. Both parties agree to follow the requirements of the PRA
and the Washington State Secretary of State's Records Retention Schedule as applicable.
The term of this section shall survive any expiration or termination of this Lease.
[END OF LEASE- SIGNATURE PAGE FOLLOWS]
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Site Name: Englewood Site Number: 348326
SIGNATURE PAGE
IN WITNESS WHEREOF, the parties have executed this Lease as of the date of the full
execution of this Lease.
LANDLORD: City of Yakima TENANT: Yakima MSA Limited Partnership
By: United States Cellular Operating
Company of Yakima
Its: General Partner
By: By:
Printed: Printed:
Title: Title: Vice President
Date Date:
Page 14 of 21 version 04/18
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Site Name: Englewood Site Number: 348326
STATE OF )
)
COUNTY OF )
I, the undersigned, a notary public in and for the State and County aforesaid, do hereby
certify that , the , known to me
to be the same person whose name is subscribed to the foregoing Tower and Ground Space
Lease, appeared before me this day in person and acknowledged that(he) (she) signed the said
Lease as (his) (her)free and voluntary act on behalf of the City of Yakima for the uses and
purposes therein stated.
Given under my hand and seal this day of , 20 .
Notary Public
My commission expires
STATE OF ILLINOIS )
)
COUNTY OF COOK )
I, the undersigned, a notary public in and for the State and County aforesaid, do hereby
certify that , Vice President, known to me to be the same person
whose name is subscribed to the foregoing Tower and Ground Space Lease, appeared before me
this day in person and acknowledged that, pursuant to his authority, he signed the said Lease as
his free and voluntary act on behalf of the named Tenant, for the uses and purposes therein
stated.
Given under my hand and seal this day of , 20 .
Notary Public
My commission expires
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Site Name: Englewood Site Number: 348326
EXHIBIT A
Legal Description of Landlord's Property
THAT PART OF THE NORTHWEST QUARTER OF THE NORTHEAST QUARTER OF
SECTION 22, TOWNSHIP 13 NORTH, RANGE 18, E.W.M., BOUNDED AS FOLLOWS:
BEGINNING AT THE NORTH QUARTER CORNER OF SAID SECTION; THENCE
SOUTH 89°20' EAST ALONG THE NORTH LINE OF SAID SUBDIVISION 416.60
FEET; THENCE SOUTH, REFERENCE MERIDIAN PARALLEL WITH THE WEST
LINE OF SAID SUBDIVISION 25.00 FEET; THENCE SOUTH 62°32' EAST 62.60 FEET
TO THE NORTHWEST CORNER OF TRACT 9 CRESCENT HILL HALF ACRES
TRACTS, ACCORDING TO THE PLAT BEING OF RECORD IN VOLUME "E" OF
PLATS, PAGE 33 RECORDED IN YAKIMA COUNTY, WASHINGTON, WHICH PLAT
HAS BEEN VACATED; THENCE SOUTH ALONG THE WEST LINE OF SAID TRACT 9
AND SOUTHERLY
EXTENSION THEREOF 311.27 FEET TO THE CENTERLINE OF VACATED
CRESCENT AVENUE; THENCE WEST ALONG THE CENTERLINE OF VACATED
CRESCENT AVENUE 472.12 FEET TO THE WEST LINE OF SAID SUBDIVISION
THENCE NORTH 369.99 FEET TO THE POINT OF BEGINNING, EXCEPT THE
NORTH A WEST 25.00 FEET THEREOF FOR ROAD, AND SUBJECT TO RIGHT OF
WAY FOR THE YAKIMA VALLEY CANAL COMPANY'S CANAL AND ALSO EXCEPT
THE SOUTH 30 FEET FOR ROAD. TOGETHER WITH THAT PORTION OF VACATED
CRESCENT AVENUE ACCRUING THERETO.
TOGETHER WITH AND SUBJECT TO EASEMENTS, RESERVATIONS, COVENANTS
AND RESTRICTIONS, OF RECORD AND IN VIEW.
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Site Name: Englewood Site Number: 348326
EXHIBIT B
SITE: Englewood Site#: 348326 FCC REGISTRATION#
TENANT NAME: Yakima MSA Limited Partnership TEL #: 800-510-6091
CONTACT: NOC
ANTENNA INFORMATION
Type of antenna: panel Make: Dengyo
Model: OCT-2LX2HX-BW65 How many antennas 6 Weight: # lbs each
Height: 8'
Usage: Transmit only Receive only Transmit& Receive X
Effective Radiated Power Watts/channel Operating Frequency: to MHz
Mounting Brackets, Mounting Height& Mount Orientation: 51'-6"; 0°/115°/195°
Transmission line Mfg. & Type No: (two)Hybrid+ (6) coaxial
Outside Diameter: 1.25" &7/8" Length:
Type of antenna: panel integrated Make: Nokia
Model: AEUB How many antennas 3 Weight: lbs each
Height: 2'-6"
Usage: Transmit only Receive only Transmit& Receive X
Effective Radiated Power Watts/channel Operating Frequency: to MHz
Mounting Brackets, Mounting Height& Mounting Orientation: 47'-7", 2°, 117°, 195°
Transmission line Mfg. & Type No: (one)Hybrid
Outside Diameter: 1.25" Length:
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Site Name: Englewood Site Number: 348326
Type of antenna: panel integrated Make: Nokia
Model: AEQU How many antennas 3 Weight: lbs each
Height: 2'-6"
Usage: Transmit only Receive only Transmit& Receive X
Effective Radiated Power Watts/channel Operating Frequency: to MHz
Mounting Brackets, Mounting Height& Mounting Orientation: 51'-0", 0°, 117°, 195°
Transmission line Mfg. & Type No: (one)Hybrid
Outside Diameter: 1.25" Length:
Type of antenna: panel integrated Make: Nokia
Model: AQQK How many antennas 3 Weight: lbs each
Height: 3'-6"
Usage: Transmit only Receive only Transmit& Receive X
Effective Radiated Power Watts/channel Operating Frequency: to MHz
Mounting Brackets, Mounting Height& Mounting Orientation: 54'-10", 0°, 115°, 195°
Transmission line Mfg. & Type No: (one)Hybrid (shared with below)
Outside Diameter: 1.25" Length:
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Site Name: Englewood Site Number: 348326
I. Interference Suppression Equipment(specify in detail & attach specifications for any
isolators, circulators, filters, intermodulation suppression panels, duplexers, etc.)
II. Other RF Equipment(specify and include AC Surge and Lightning Arrestor Power,
Telephone& Transmission line devices)
Four(4)Raycap, three (3) AHLOA, three (3) AHFIB, three (3) AHCA (at approximately 51')
III. Other Equipment(specify all other improvements, company property & personal property
located at the site)
TENANT'S Equipment:
uildinur Cabinet: (circle one)
Size: 12' x 20'
Type: concrete
Location: adjacent to building in parking lot
Transmitted Rated Power:
Amount of Land required for building or cabinet: 350 s.f.
Is Emergency Power provided by LANDLORD? ❑ YES ®NO
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Site Name: Englewood Site Number: 348326
FCC License Call Sign and Frequency Bands
Ca1lSign Band LowerBound UpperBound
MHz MHz
KNKA507 Cellular 880 890
KNKA507 Cellular 891.5 894
WQJQ736 700 A,B,E 734 740
WQXW455 AWS-3 2155 2160
WQLE678 700 A,B,E 728 734
WQXW449 AWS-3 2165 2170
WQZM902 B71 642 647
WQZM903 B71 647 652
WQXW448 AWS-3 2160 2165
WRQQ905 DoD 3450 3460
WRQQ906 DoD 3460 3470
WRQQ907 DoD 3470 3480
WRQQ908 DoD 3480 3490
WRNL449 C-Band 3920 3940
WRNL450 C-Band 3940 3960
WRNL451 C-Band 3960 3980
WREV655 mmWave 24950 25050
WREV745 mmWave 25050 25150
WREV839 mmWave 25150 25250
WREH604 mmWave 27500 27925
WRHR598 mmWave 38800 38900
WRHR599 mmWave 38900 39000
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Site Name: Englewood Site Number: 348326
EXHIBIT C
Tenant's Site Plan and Lease Area Legal Description
THAT PORTION OF THE NORTHWEST QUARTER OF THE NORTHEAST QUARTER OF SECTION
22, TOWNSHIP 13 NORTH, RANGE 18 EAST, W.M., YAKIMA COUNTY, WASHINGTON, DESCRIBED
AS FOLLOWS:
COMMENCING AT THE NORTHWEST CORNER OF THE NORTHWEST QUARTER OF THE
NORTHEAST QUARTER OF SAID SECTION THENCE SOUTH 00°27'33" EAST ALONG THE
WESTERLY LINE THEREOF 339.99 FEET; THENCE NORTH 89°32'07" EAST ALONG THE
PROJECTED SOUTHERLY LINE OF THAT PARCEL AS DEPICTED ON THE RECORD OF SURVEY
RECORDED UNDER AUDITOR'S FILE NUMBER 3101490, RECORDS OF SAID COUNTY 288.28
FEET; THENCE NORTH 00°27'53" WEST 3.25 FEET TO THE TRUE POINT OF BEGINNING;
THENCE CONTINUING NORTH 00°27'53" WEST 15.00 FEET;
THENCE NORTH 89°32'07" EAST 30.00 FEET;
THENCE SOUTH 00°27'53" EAST 15.00 FEET;
THENCE SOUTH 89°32'07"WEST 30.00 FEET TO THE SAID TRUE POINT OF BEGINNING.
CONTAINS 450 SF
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Page 21 of 21 version 04/18
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Property Address: 511 North 40th Avenue,Yakima,WA 98902
APN/Parcel ID#: 181322-12008
Prepared by and return to:
Yakima MSA Limited Partnership
Attention:Real Estate Legal
8410 W.Bryn Mawr Ave.
Chicago,IL 60631
Site Name: Englewood
Site Number: 348326
County: Yakima
State: WA
MEMORANDUM OF LEASE
THIS MEMORANDUM OF LEASE is made and entered into by and between City of Yakima,
whose address is 200 S. Third Street, Yakima, Washington 98901, hereinafter referred to as
"Landlord", and Yakima MSA Limited Partnership, whose address is Attention: Real Estate
Lease Administration, 8410 West Bryn Mawr Avenue, Chicago, Illinois, 60631, hereinafter
referred to as "Tenant."
WITNESSETH:
WHEREAS, by the terms of a certain Tower and Ground Lease, entered into on the of
, 2024, ("the Lease"), the Landlord granted Tenant the right to lease
certain property as set forth in Exhibit "A" attached hereto and made a part hereof (the
"Premises")upon the terms and conditions set forth in the Lease; and
WHEREAS, the Landlord and the Tenant desire to execute this Memorandum of Lease to
evidence said Lease and certain of the terms therein for the purpose of placing the same of record
in the Clerk's Office for Yakima County, State of Washington.
NOW THEREFORE, in consideration of the sum of Ten ($10.00) Dollars and other good and
valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the
Landlord does hereby grant Tenant the right to lease the Premises upon the terms and conditions
of the Lease which is incorporated herein by specific reference, and do agree as follows:
-s
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1. The initial term of the Lease is five (5) years commencing November 2, 2024. The Lease
provides for renewal terms that may extend the term of the lease for up to five (5) additional five
(5) year terms which may be exercised upon the terms and conditions more particularly as set
forth in the Lease.
2. This Memorandum of Lease is subject to all the terms and provisions of the Lease which is
incorporated herein and made part hereof by reference as if all the provisions thereof were
copied in full herein. Any conflict between the provisions of the Memorandum of Lease and
Lease will be resolved in favor of the Lease.
IN WITNESS WHEREOF, the Landlord and Tenant hereto have caused this
Memorandum of Lease to be executed by their duly authorized officers as of the date of full
execution.
LANDLORD: City of Yakima TENANT: Yakima MSA Limited Partnership
By: United States Cellular Operating
Company of Yakima
Its: General Partner
By: By:
Printed: Printed:
Title: Title: Vice President
Date: Date:
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STATE OF )
)
COUNTY OF )
I, the undersigned, a notary public in and for the State and County aforesaid, do hereby
certify that , known to me to be the same person whose name is
subscribed to the foregoing Memorandum of Lease, appeared before me this day in person and
acknowledged that, pursuant to their authority, signed the said Memorandum as their free and
voluntary act on behalf of City of Yakima, for the uses and purposes therein stated.
Given under my hand and seal this day of , 20 .
Notary Public
My commission expires
STATE OF ILLINOIS )
)
COUNTY OF COOK )
I, the undersigned, a notary public in and for the State and County aforesaid, do hereby
certify that , Vice President for United States Cellular Operating
Company of Yakima, known to me to be the same person whose name is subscribed to the
foregoing Memorandum of Lease, appeared before me this day in person and acknowledged that,
pursuant to his authority, he signed the said Memorandum as his free and voluntary act on behalf
of the named Tenant, for the uses and purposes therein stated.
Given under my hand and seal this day of , 20 .
Notary Public
My commission expires
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EXHIBIT A
Legal Description of Premises
THAT PORTION OF THE NORTHWEST QUARTER OF THE NORTHEAST QUARTER OF SECTION
22, TOWNSHIP 13 NORTH, RANGE 18 EAST, W.M., YAKIMA COUNTY, WASHINGTON, DESCRIBED
AS FOLLOWS:
COMMENCING AT THE NORTHWEST CORNER OF THE NORTHWEST QUARTER OF THE
NORTHEAST QUARTER OF SAID SECTION THENCE SOUTH 00°27'33" EAST ALONG THE
WESTERLY LINE THEREOF 339.99 FEET; THENCE NORTH 89°32'07" EAST ALONG THE
PROJECTED SOUTHERLY LINE OF THAT PARCEL AS DEPICTED ON THE RECORD OF SURVEY
RECORDED UNDER AUDITOR'S FILE NUMBER 3101490, RECORDS OF SAID COUNTY 288.28
FEET; THENCE NORTH 00°27'53" WEST 3.25 FEET TO THE TRUE POINT OF BEGINNING;
THENCE CONTINUING NORTH 00°27'53" WEST 15.00 FEET;
THENCE NORTH 89°32'07" EAST 30.00 FEET;
THENCE SOUTH 00°27'53" EAST 15.00 FEET;
THENCE SOUTH 89°32'07"WEST 30.00 FEET TO THE SAID TRUE POINT OF BEGINNING.
CONTAINS 450 SF
Premises consists of attachment heights on Landlord's communications tower located adjacent to
the above-described property.
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