HomeMy WebLinkAboutR-2016-114 Radio Site Sublease Agreement with New Cingular Wireless PCS, LLCA RESOLUTION
RESOLUTION NO. R-2016-114
authorizing the City Manager to enter into a Radio Site Sublease
Agreement with New Cingular Wireless PCS, LLC, a Delaware
limited liability company for the purpose of leasing available space
on the City's Look Out Point radio communications site.
WHEREAS, New Cingular Wireless, formerly AT&T Wireless, and the City have
had a long term relationship in sharing the existing Look Out Point radio site; and
WHEREAS, by doing so has been beneficial to both the City and New Cingular
Wireless; and
WHEREAS, upon entering into this agreement New Cingular Wireless will make
improvements to the radio site infrastructure that benefits the City's radio communications,
and
WHEREAS, the City Council deems it to be in the best interest of the City of
Yakima, now, therefore,
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA:
That the City Manager is authorized to enter into a Radio Site Sublease
Agreement with New Cingular Wireless PCS, LLC, a Delaware limited liability company
for the purpose of leasing available space on the City's Look Out Point radio
communications site
ADOPTED BY THE CITY COUNCIL this 4th day of October, 2016.
ATTEST
Sonya CIAaar Tee, City Clerk
IT•Services
CITY OF YAKIMA
CITY OF YAKIMA
LOOKOUT POINT COMMUNICATION SITE
SITE SUBLEASE AGREEMENT
Oato\e4.
THIS SITE SUBLEASE AGREEMENT ("sublease") is entered into this Jay of Setsterrreet 2016
between the City of Yakima, a municipal corporation ("Sublessor"), and New Cingular Wireless PCS, LLC,
a Delaware limited liability company ("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 prior
Lease Agreement dated June 19,1986, entered into with Pacific Northwest Bell, a Telephone Company,
as Lessor, which lease was subsequently renewed by separate "Lease Agreement for Look Out Point
Communications Site," 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") and attached hereto as Exhibit B;
WHEREAS, Sublessor and Sublessee are parties to that certain Site Sublease Agreement dated
September 16, 1989, as amended by that certain First Amendment to City of Yakima Lookout Point
Communications Site Sublease Agreement dated February 1, 2008 (collectively, the "Original Sublease")
by which Sublessee subleases a portion of the Site as a location for Sublessee's wireless communications
facility; and
WHEREAS, Sublessor and Sublessee desire to enter into this Sublease to replace the Original
Sublease and by which will permit Sublessee to make certain improvements to its communications
facility at the Site as further described herein, including replacing the existing communications tower.
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 C attached hereto, together with easements for access and utilities as provided herein,
which portions consists of a 250 square foot area as a location for an equipment shelter, space
on the Tower (as defined below), and sufficient space extending from the equipment shelter to
the Tower and from the Tower to the nearest utility connections on the Property (collectively,
the "Premises").
2. Use: The Premises may be used by Sublessee for the transmission and reception of wireless
communication signals in any and all frequencies, the construction and maintenance of related
facilities, towers, antennas, or buildings and for related activities in the conduct of their
business as a commercial wireless communications provider. 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 after Sublessor obtains all required consents and approvals from FairPoint
Communications (the "Approval Date") and Sublessor submits to Sublessee a commencement
date memorandum for execution which sets forth the Approval Date in writing (the date set
forth in the letter shall be the "Term Commencement Date"). If a Commencement Date
Memorandum is not provided by December 31, 2016, unless such date is mutually extended by
the parties in writing, then this Agreement will have no further force and effect.). 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) (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 Term Commencement Date (the "Rent Commencement Date"),
Sublessee will pay the Sublessor a monthly rental payment of One Thousand One Hundred
Twenty One and No/100 Dollars ($1,121.00) ("Rent") at Yakima City Treasurer, 129 N. 2nd
Street, Yakima, WA 98901, on or before the fifth (5th) day of each month In a partial month
occurring after the Rent Commencement Date, Rent will be prorated.
a. In year two (2) of the Initial Term, and each year thereafter, including throughout any
Extension Terms, the monthly Rent will increase by Four percent (4%) over the Rent
paid during the previous year.
b. If this Sublease is terminated at a time other than the first day of a month, 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.
5. Interference:
a. Sublessee shall not use any portion of the Property in any way that interferes with the
operations of Sublessor's use of the Property, so long as Sublessor does 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 immediate 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 Sublessees,
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 interferences 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
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. Improvements; Utilities; Access:
a. Tower: Sublessee shall erect a Tower ("Tower") on the Premises as described in Exhibit
C. Title to the Tower shall immediately belong to the Sublessor upon completion of
construction and the execution of a mutually agreeable Bill of Sale. Upon the execution
of the Bill of Sale, Sublessor shall immediately be responsibility for maintenance of the
Tower. In compensation for the Tower, the Sublessor will pay the Sublessee the amount
of One Hundred Thirteen Thousand Seven Hundred Dollars ($113,700) in the form of the
monthly Rent offset as described in Paragraph 4 until paid in full.
b. Existing Tower: A tower is currently located on the Premises ("Existing Tower"). At the
time Sublessee completes construction of the Tower described in (a) above, and the
facilities of Sublessor and Sublessee are installed thereon, the Existing Tower shall be
dismantled at Sublessee's expense. Sublessee shall use commercially reasonable efforts
to dismantle the Existing Tower without any significant damage and in a manner that
will allow the Existing Tower to be reused by the Sublessor. Ownership of the Existing
Tower will remain with the Sublessor, and Sublessor shall accept the dismantled Existing
Tower from Sublessee in its as -is condition and with all faults.
c. Communications Facilities: Sublessee shall also have the right to install and maintain on
the Site, at its own expense; improvements, personal property, transmitting and
receiving antennas and an associated equipment shelter (collectively, the
"Communications Facilities"). The Communications Facilities shall remain the exclusive
property of Sublessee, and Sublessee shall have the right to remove the
Communications Facilities during the term and shall remove the same following any
termination of this Sublease. Sublessee hereby grants Sublessor the right to use a
portion of the equipment shelter selected by Sublessee, at no charge, during the life of
this Sublease, subject to the terms herein.
d. If this Sublease terminates for any reason the Tower shall remain the Property upon
termination and Sublessor shall be responsible for paying to Sublessee any portion of
the One Hundred Thirteen Thousand Seven Hundred Dollars ($113,700) purchase price
not yet paid or credited to Sublessee.
e. Sublessee shall pay for all changes it may make to the to accommodate its
Communications Facilities. If any of the Sublessor's existing facilities are moved or
damaged in construction of the Sublessee's improvements, they shall be replaced or
repaired at the Sublessor's discretion, and at the Sublessee's expense. Sublessee shall
be required to obtain Sublessor's approval before making changes other than specified
herein.
f. Sublessee shall have the right to make any modifications within the equipment shelter
or any like for like exchanges of equipment on the Tower without Sublessor's consent.
Sublessee shall also have the right to install utilities, at Sublessee's expense, and to
improve the present utilities on the Premises (including, but not limited to the
installation of emergency power generators). Sublessee shall have the right to
permanently place utilities underground within the Property in order to service the
Premises and the Communications Facilities. Sublessee shall separately meter charges
for the consumption of electricity for power and/or lighting associated with its use and
shall promptly pay all costs associated therewith.
g.
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:
(a) During the Term, Sublessee will carry, at its own cost and expense, the following
insurance: (i) workers' compensation insurance as required by law; and (ii) commercial general
liability (CGL) insurance with respect to its activities on the Property, such insurance to afford
protection of up to Three Million Dollars ($3,000,000) per occurrence and Six Million Dollars
($6,000,000) general aggregate, based on Insurance Services Office (ISO) Form CG 00 01 or a
substitute form providing substantially equivalent coverage. Sublessee's CGL insurance shall
contain a provision including Sublessor as an additional insured. Such additional insured
coverage:
(i) shall be limited to bodily injury, property damage or personal and advertising
injury caused, in whole or in part, by Sublessee, its employees, agents or independent
contractors;
(ii) shall not extend to claims for punitive or exemplary damages arising out of
the acts or omissions of Sublessor, its employees, agents or independent contractors or
where such coverage is prohibited by law or to claims arising out of the gross negligence
of Sublessor, its employees, agents or independent contractors; and
(iii) shall not exceed Sublessee's indemnification obligation under this
Agreement, if any.
(b) Notwithstanding the foregoing, Sublessee shall have the right to self -insure the
coverages required in subsection (a). In the event Sublessee elects to self -insure its obligation
to include Sublessor as an additional insured, the following provisions shall apply (in addition to
those set forth in subsection (a)):
(i) Sublessor shall promptly and no later than thirty (30) days after notice
thereof provide Sublessee with written notice of any claim, demand, lawsuit, or the like
for which it seeks coverage pursuant to this Section and provide Sublessee with copies
of any demands, notices, summonses, or legal papers received in connection with such
claim, demand, lawsuit, or the like;
(ii) Sublessor shall not settle any such claim, demand, lawsuit, or the like
without the prior written consent of Sublessee; and
(iii) Sublessor shall fully cooperate with Sublessee in the defense of the claim,
demand, lawsuit, or the like.
(c) Neither party shall be liable to the other (or to the other's successors or assigns)
for any loss or damage caused by fire that is not the result of the negligence or willful act of that
party or any of the risks enumerated in a standard "All Risk" insurance policy not the result of
the negligence or willful act of that party, and, in the event of such insured loss, neither party's
insurance company shall have a subrogated claim against the other.
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 indemnity 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.
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:
New Cingular Wireless PCS, LLC
Attn: Network Real Estate Administration
Re: Cell Site # YA01
Cell Site Name: Selah
Fixed Asset #: 10098221
575 Morosgo Drive NE
Atlanta, GA 30324
With Copy to:
New Cingular Wireless PCS, LLC
Attn: Legal Department
Re: Cell Site # YA01
Cell Site Name: Selah
Fixed Asset #: 10098221
208 S. Akard Street
Dallas, Texas 75202-4206
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.
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 Master Agreement between Sublessor
and Pacific Northwest Bell, dated June 19, 1986, and as subsequently renewed pursuant to 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
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. Termination of Original Agreement. Sublessor and Sublessee hereby agree that
notwithstanding anything agreed to the contrary, beginning as of the Term Commencement
Date, the Original Agreement shall terminate and be of no further force and effect.
22. 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
SUBLESSEE: New Cingular Wireless PCS, LLC,
a Delaware limited liability company
By: AT&T Mobility Corporation
ts: Manage
Signature/ j Signatur
Cliff Moore
Name
City Manager
Title
CITY CONTRAC t NO: 67 — firS'
RESOLUTION NO: /PO/ 10 -- /i /
Aram. ,Jca,J
Name
Title
EXHIBIT A
LEGAL DESCRIPTION
11 octo be'-
To the Site Sublease Agreement dated thisX/t day ofd, 2016 by and between the
City of Yakima, as Sublessor, and New Cingular Wireless PCS, LLC, a Delaware limited liability company as
Sublessee.
The Premises are legally described as follows:
That portion 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: thence north 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 21' 54" west
769.7 feet; thence north 31 57' 06" 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.
EXHIBIT B
MASTER AGREEMENT
ekto ID er"
To the Site Sublease Agreement dated thisth day of Scptcrrcr, 2016 by and between the City
of Yakima, as Sublessor, and New Cingular Wireless PCS, LLC, a Delaware limited liability company as
Sublessee.
LEASE AGREEMENT FOR LOOKOUT POINT COMMUNICATIONS
SITE
Ellensburg Telephone Company, d/b/a FairPoint Communications, a Washington corporation,
hereinafter called Lessor, being the owner of the property described below, does hereby lease
to the City of Yakima, Washington, a municipal corporation, hereinafter called the City or
Lessee, the following described real property situate in Yakima County, Washington, legally
described as follows:
That portion of the Southeast Quarter, of the Northeast Quarter, of Section 11, Township 13
North, Range 18East, W.M., Yakima County) Washington, described asfollows:
Commencing at the southeast corner of said section 11, as shown on a record 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
2647.78feet, thence south 89° 15' 35" west 573.75 feet; thence north 58° 02' 54" west769.70
feet; thence north 310 57' 06" east 165.00feettothe true point of beginning; thence north 31°
57' 06" east 75.O0feet; thence north 58° 02' 54" west70.00feet; thence south 31° 57'06" west
75.O0feet, thence 58°02' 54" east 70.00feettothe said true point of beginning.
Including an access road suitable for vehicular travel between the leased premises
and Lookout Point Road.
In consideration of and according to the following provisions, terms and conditions:
Term -- Renewal -- Termination
This agreement shall become effective on the date of its execution by both parties (the
"Effective Date"), and shall remain effective for a term of twenty (20) years thereafter;
provided, the City shall have the option to renew this agreement and extend the term of the lease
for an additional five (5)years, to be exercised by the City giving notice to the Lessor, no less
than six (6) months prior to the expiration of the original twenty (20) year term, of the Cityt
exercise of this option; provided, further, the City may terminate this agreement and lease by
giving notice to the Lessor of such termination no less than one (1)year prior to any annual
anniversary of the execution of this lease agreement.
Rent
At the execution of this agreement, as annual rent for the first twelve months of the term
of this lease the City shall pay the Lessor the amount of Three Thousand, Three Hundred
dollar9($3,300.00) plus the prorated amount of rent for the period beginning on April 16,
Page 1 of 7
2016 to the Effective Date. Thereafter, the City shall pay, upon invoicing;, an annual rent in
the amount of the previous year's rent plus four percent (4%).
Use and Improvement of Premises
The City shall use the leased premises as a communications site only. The City will
install and maintain communications equipment and a building to house the equipment,
along with an antenna tower, and a chain Zink fence around the perimeter of the leased
premises, all for the purpose of servicing the City's communication system and other
communications systems.
The erection of structures, and the installation of communications equipment and other
improvements, will be done at the City's sole expense and at such times as the City
determines. From time to time, the City may alter, add to or otherwise modify the
structures, equipment and other improvements to be erected or installed on the property.
Conditions of Premises -- Maintenance
The City accepts the premises in their current condition. The City shall maintain the
premises and any improvements thereto in good condition and shall not erect any
structures or otherwise use the premises except in conformance with applicable laws.
Utilities
Lessor shall make no charge to the City on account of the installation of the utilities presently
serving the premises. However, the City shall pay the service charges for those utilities and
the City shall pay the installation and service charges for any other utilities installed at the
direction or request at the City to serve the premises.
Improvements as Trade Fixtures
The building and all structures and the communication equipment constructed and installed
on the leased premises by the City or at City expense during the term of the tenancy
shall be deemed by the parties to constitute trade fixtures, and the City may remove them
from the premises at the expiration or other termination of this agreement to the extent that
such removal does not result in substantial and permanent damage to the premises.
Subletting
The City shall not assign or sublet this agreement or the leased premises without prior written
Page 2 of 7
consent of the Lessor; provided, it is intended that structures and equipment related to
communications systems owned by and/or serving third parties may be erected and installed
on the leased premises, and the prohibition of this paragraph shall not be construed to
prohibit the City from collecting a fee from third parties for permitting such installations and
connections.
Default -- Notice of Termination
In the event of non-payment of rent or other default by the City in complying with this
agreement or other requirements imposed by law, the Lessor may terminate this
agreement and lease by notifying the City of the default and that the agreement and
lease will be terminated thirty (30) days from the date of the receipt by the City of such
notice unless the City cures the default within that thirty (30)day period.
The City shall have thirty (30) days from its receipt of the notice to pay delinquent rent or
otherwise cure the default described in the notice, and in the event the City does so, the
agreement and lease shall not terminate.
Indemnification
Lessee agrees to defend, indemnity and to hold Lessor harmless from any and all claims arising
out of the performance of this Lease Agreement, except for claims arising from the negligence or
intentional acts of Lessor, or its respective agents and independent contractors. Lessor agrees to
defend, indemnity and to hold Lessee harmless from any and all claims arising out of the
performance of this Lease Agreement, except for claims arising from the negligence or intentional
acts of Lessee, or its respective agents and independent contractors.
Restoration of Premises upon Abandonment or Termination
All rights hereunder shall cease and terminate if and when use of parcel for such purposes
shall have been abandoned, and two years non-use thereof shall be conclusive evidence of
such abandonment. Upon abandonment or termination of lease by expiration or breach of any
of the above conditions, Lessee shall restore said parcel to a condition satisfactory to Lessor;
provided, the premises need not be restored to a better condition than that existing at the
commencement of this lease. Lessee shall have a reasonable amount of time after any such
termination to remove any of its facilities located on said parcel, and if it does not do so,
Lessor shall have the election of removing such facilities and charging Lessee for the costs
of such removal of retaining such facilities in full satisfaction of Lessee's obligation to remove the
same.
Page 3 of 7
Property Taxes
Lessor shall pay any and all real property taxes and assessments or otherwise of every
kind and description which may be levied against the leased premises during the term of this
lease or any extension thereof. In the event the Yakima County Assessor's Office increases the
assessment on the land or improvements due to the communication facility described in this
lease being located on the property, the City of Yakima hereby agrees to pay the increase in
property taxes attributable solely to their communication facility. Lessor and Lessee further
agree that any reimbursement due either party will be made within thirty (30) days after receipt
of demand for such reimbursement.
Liens for Labor or Material
Lessee shall keep said leased premises free and clear of mechanic's liens and any and all
other liens for labor and materials caused to be used on said leased premises by Lessee.
Notice
Any notice to be given pursuant to this agreement shall be in writing and shall be delivered
either by certified mail, with a return receipt requested, or by personal service of a copy of the
notice, with delivery to be made as follows:
To the City:
City of Yakima
Attn: Information Technology Manager
129 N. 2nd Street
Yakima, WA 98901
To Lessor:
Ellensburg Telephone Company
d/b/a FairPoint Communications
Attn: Operations Manager
305 N. Ruby Street
Ellensburg, WA 98926
With copy to:
FairPoint Communications, Inc.
Attn: Legal Department
521 E. Morehead Street, Suite 500
Charlotte, NC 28202
Successor Bound
This agreement shall inure to the benefit of and shall be binding on successors, of
Page 4 of 7
whatever nature of the parties hereto, and on the successors of Lessor in
ownership of the leased property. In the event Lessor sells the leased property to a
third party, that sale shall be subject to the interests of the City created and existing
pursuant to this lease agreement.
IN WITNESS THEREOF, the parties have executed this agreement on the
, 2016.
CITY OF YAKIMA
By:
Cliff Moore, City Manager
ATTEST:
By:
7
day of
ELLENSBURG TELEPHONE COMPANY
d/b/a FAIRPOINT COMMUNICATION
By:
By:cP/ l-..
Sonya Claak, ee, City Clerk
CITY CONTRACT NO:f2D / - / 72
RESOLUTION No:F` 2O/6 -/OS
Page 5 of 7
ATTESTATION FOLLOWS:
STATE OF NORTH CAROLINA )
County of
ss.
On this /5- day of u� . 2016,. before me personally appeared
, to me known to be the vp c/�'
of the corporation that executed the within and foregoing instrument, and acknowledged said
instrument to be the free and voluntary act and deed of said corporation, for the uses and
purposes therein mentioned, and on oath stated that they were authorized to execute said
instrument
on behalf of said corporation.
In Witness Whereof I have hereunto set my hand and affixed my official seal the day and year
first above written.
�D%TH,����44
•
13118610Ges4;
,c, 612)
NO ARY PUBLIC in and for the State of North
arolina, residing at: (7�,�j
My commission expires
Page 6 of 7
�,,F�acR (9.. oa/
STATE OF WASHINGTON
) ss.
County of Yakima
C(
On this -74:4-' day of Alb . 2016, before me personally appeared -EFF-
ootC�to me known to bete Interim City Manager of the City of Yakima, the municipal
corporation that executed the within and foregoing instrument, and acknowledged said instrument
to be the free and voluntary act and deed of said municipal corporation, for the uses and purposes
therein mentioned, and on oath stated that he was authorized to execute said instrument on behalf
of said corporation.
In Witness Whereof I have hereunto set my hand and affixed my official seal the day and year
first above written.
Notary Public
State of Washington
KAARRE ALLYN
MY COMMISSION EXPIRES
January 12, 2020
NOTARYaalAk
PUBLIC in and
Washington, residing at:
My commission expires:
Page 7of7
EXHIBIT C
THE PREMISES
11 f.6:6 ben
to the Site Sublease Agreement dated thish day of Scptobcr, 2016 by and between the City
of Yakima, as the Sublessor, and New Cingular Wireless PCS, LLC, a Delaware limited liability company,
as Sublessee.
The location of the Premises available for use by the Sublessee within the property is more particularly
described or depicted as follows:
The highlighted areas of the Premises indicated in this drawing.
Total use of the Tower by the Sublessee shall be limited to no more than 3/10 of the total tower height.
/ y
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ITEM TITLE:
BUSINESS OF THE CITY COUNCIL
YAKIMA, WASHINGTON
AGENDASTATEMENT
Item No. 6.B.
For Meeting of: October 4, 2016
Resolution authorizing a radio site sublease agreement with New
Cingular Wireless PCS, LLC, a Delaware limited liability company
for the purpose of leasing available space on the City's Look Out
Point radio communications site
SUBMITTED BY: Wayne Wantland, Information Technology Services, 575-6048
SUMMARY EXPLANATION:
During the thirty years that the City has had the radio transmission site on Look Out Point, the City
has subleased a portion of the unused space to a cellular company, currently New Cingular
Wireless (previously AT&T Wireless). Because of the change of the Master Lease with Fairpoint
Communications we need to update the sublease. The agreement is mutually beneficial for the
City and New Cingular Wireless. Once this agreement is executed, they will be making
enhancements to the site that will directly benefit the City.
The term of the lease is five years with three five-year renewal options. The monthly rent is
$1,121 with an annual 4% inflator beginning in year two.
ITEM BUDGETED:
STRATEGIC PRIORITY:
APPROVED FOR
SUBMITTAL:
Yes
Public Safety
City Manager
STAFF RECOMMENDATION:
Adopt resolution.
BOARD/COMMITTEE RECOMMENDATION:
ATTACHMENTS:
Description Upload Date Type
D New Cingular Lease Resolution 9/15/2016 Resolution
D New Cingular SubleaseAgreement 9/14/2016 Contract
Corporate Headquarters 3305 Hwy. 60 West, Faribault, MN 55021
800.328.5142 Icontactkgp@kgpco.com I www.kgp.services
10/20/2022
City of Yakima
200 S 3rd St
Yakima, WA 98901
RE: Authorization of AT&T Site Modifications
Site ID: 10098221
Site Address: 2.3 MILES SOUTHEAST CRUSHER CANYON SELAH, WA 98942
Dear John,
This letter is to advise you that it will be necessary within the near future for AT&T to make certain
physical modifications to their existing Site. The planned improvement includes but is not limited
to the installation of a permanent emergency back-up generator within or near the existing lease
area and located on a new or existing concrete pad. These improvements are being undertaken to
ensure the continued technical and economic feasibility of Tenant's facility and are a part of their
partnership with FirstNet (First Responder Network Authority), bringing continued support to First
Responders. As described, this modification should have no significant impact on Landlord's
property or operations. However, in accordance with the Site Agreement, Tenant requests that
Landlord acknowledge notice of, and consent to, the following modifications:
Install a 30kW Diesel generator on new/existing concrete pad.
Please indicate your acknowledgement and consent by signing below and on the title block under
the architect's name on the attached generator drawing and returning one copy of this letter and
the drawing to me by e-mail at Crystal.Shea@kgpco.com. Please respond to this letter within 14
days.
Thank you in advance for your prompt attention to this matter.
Regards,
By: Crystal Shea
(312) 758-7915
KGPCo., an authorized representative of AT&T
ACKNOWLEDGED AND AGREED TO:
Printed Name: Bob Harrison
Title: _City Manager
Email: Vo*. lei n
Date ult , 2022_
CITY CONTRACT NO
RESOLUTION NO ,
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