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HomeMy WebLinkAboutPocketiNet Communications Inc - Office - Land LeaseAIRPORT LEASE AGREEMENT WITH •OCKETINET COMMUNICATIONS, IN4 THIS LEASE, executed this 1st day of September, 2012, between the YAKIMA AIR TERMINAL — McALLISTER FIELD, an agency of the City of Yakima and County of Yakima, Washington, hereinafter referred to as "LESSOR," and PocketiNet Communications, Inc., hereinafter referred to as "LESSEE." W I T N E S S E T H: WHEREAS, LESSOR operates the Yakima Air Terminal (YAT) - McAllister Field, under the authority granted by the Joint Operations Agreement (JOA) signed by the City and County of Yakima, Washington on July 1, 1982; and, WHEREAS, LESSOR has approved property available for lease as provided by this Lease and LESSEE desires to occupy and use such property in accordance with this Lease, NOW THEREFORE, in consideration of the mutual promises contained herein and the benefit to be derived by each party, the parties agree as follows: LESSOR does hereby lease and let unto LESSEE, and LESSEE does hereby lease and take from LESSOR, approximately 4,350 square feet of covered space (3,214 sq ft "garage" and 1,136 sq ft "office) and the property on which this building is located including the vehicle parking lot on the south side of the building land in the City of Yakima, Yakima County, Washington, as that property is depicted on the drawing marked Exhibit "A" and furthermore known as 2400 West Washington Avenue, Yakima, Washington 98903, attached hereto and by this reference made a part hereof, together with the right of ingress to and egress from the leased premises and the public use areas/facilities used in connection therewith, over designated Airport property and roadways, subject to rules and regulations governing the use of the Airport and as the same may be promulgated by LESSOR from time to time. 2. TERM: The tenancy created by this Agreement shall commence September 1, 2012, and terminate August 31, 2015, unless otherwise terminated as provided for herein. LESSEE shall have the option to extend the term by three (3) one (1) year periods, to wit, September 1, 2015, through August 31, 2016, and so forth provided LESSEE delivers to LESSOR not less than ninety calendar days (90 days) before the expiration of the original term or previously executed option written notification of its intent to extend the term. 3. RENT: q-1-1 3 .t 1X A. September 1 2012 through, August 31 2013: LESSEE promises and agrees to pay rent to LESSOR at the rate of One Thousand Five Hundred Dollars and No Cents per month for the leased premises, made on or before the 10th day of each month in which such payment is due. Payments shall be made to the Yakima Air Terminal - McAllister Field in care of the Airport Manager's office. Any rental payment past due shall accrue a delinquency charge of eighteen percent (18 %) per annum, levied monthly. B. September 1 2013: Effective this date, the monthly lease payment shall be increased by three percent (3.0 %) as a set lease rate increase. The lease rate shall increase by 3% each year thereafter, i.e. September 1, 2014 and 2015/241612017 if so executed. C. All rates set above are rental rates of property only and do not include any taxes of any sort. All applicable taxes shall be paid by LESSEE and will be computed on the lease rate in effect at that time. (See paragraph 6. below) ■ M Upon execution of this lease by both parties, LESSEE shall deposit with LESSOR the amount of one month's rent plus leasehold tax as a guarantee of LESSEE's performance of this Lease and the timely payment of the rental provided for herein, and in the event LESSEE shall fail to pay the rental as provided herein, or otherwise breach this Lease, then the Airport Manager may apply such deposit, or any part thereof as may be necessary, to the payment of rental or to the payment of damages for such breach or pursue any other remedies provided herein. If the deposit funds are applied to care a default, those applied funds must be replenished within three (3) days regardless of the reason for the default. The deposit amount required may be adjusted from time to time to reflect adjustments in the rent and /or leasehold tax. 5. TAXES AND LIENS: n In addition to the rent payable above, LESSEE promises and agrees to pay, as the same become due and payable, all licenses, fees and taxes, including but not limited to the leasehold excise, required to be paid by LESSEE by reason of this Lease and by reason of LESSEE's use and occupancy of the leased premises and by reason of LESSEE's construction or ownership of improvements to the leased premises. LESSEE shall neither suffer nor permit the attachment of any lien or other encumbrance on the leased premises by reason of LESSEE's occupancy thereof. LESSEE agrees to indemnify LESSOR and shall hold LESSOR harmless from any such taxes and liens. Ko LESSEE agrees to use the leased premises only for its business activity only or for any other use that is approved by the LESSOR and is allowed by the Master Plan and the zoning of the property by the appropriate jurisdiction. 7. UTILITIES: LESSEE shall be responsible for all utility services including, but not limited to, power, natural gas, sewer, and garbage. All communications, i.e. telephone, computer network support, etc remains the responsibility of Lessee, and Lessee is free to install any system and/or type of service it desires in the furtherance of its business. LESSEE agrees to keep and maintain the premises in a condition at least as good as the condition of the premises at the beginning of LESSEE's occupancy, normal wear and tear excluded. LESSEE further agrees that LESSEE shall be responsible to maintain all leased areas, buildings, trade fixtures and other improvements, existing and future, in an attractive and usable manner as determined by the Airport Manager and consistent with other properties at the Airport. Maintenance shall include, but not be limited to garbage and debris removal, and snow removal. Outside landscaping maintenance shall be appropriately and regularly accomplished by the Lessor on Lessor's schedule. PocketiNet is responsible for the "ordinary and customary maintenance" to keep the property essentially "in present condition". Replacement of major components, such as roof, water pump, electric garage door and/or motor, HVAC, etc will be at airport's expense. However, if airport does not want to take on a one-time expense greater than $1,500 for such replacement of components, the agreement may be terminated by either party upon 60-days notice to the other. "Ordinary and customary maintenance" is further defined to include painting, carpet replacement, minor repairs, HVAC and roof repairs not exceeding $250/occurrence or $1,500 per year, 9. SIGNS: LESSEE, at LESSEE's own expense, may erect sign(s) of a type, number and location suitable to LESSOR. No signs or other advertising matter or devices shall be used or displayed in or about the leased premises or upon any portion of the Airport without the prior written approval of the Airport Manager, which approval shall not be unreasonably withheld. 10. IMPROVEMENTS: All buildings, trade fixtures and other improvements to the leased property by LESSEE shall conform to applicable rules, regulations and codes, and LESSEE shall procure all building and other permits therefore. All buildings, trade fixtures 3 and other improvements shall be designed with a view toward aesthetic considerations and installation shall not commence until plans and specifications therefore have been submitted to and approved in writing by the Airport Manager, which approval shall not be unreasonably withheld. LESSOR makes no representation or guarantee as to the suitability of the [eased area for construction of buildings, roads, ramps, etc., and is not responsible for the costs of excavation and/or removal of any object found either above or below ground level except for hazardous materials and archaeological artifacts existing prior to tenancy. HDINLRMMI� * -: 0 Ninety (90) days prior to the expiration of this Lease, including any renewals, LESSEE shall provide written notice to the Airport Manager of one of the following intents of the LESSEE: A. Revert the improvements constructed or installed on the Premises to the LESSOR at no cost or encumbrance to the Airport, City or County; B. Negotiate a new land lease agreement with the approval of the LESSOR; 12. REGULATIONS: LESSEE agrees to comply with all applicable laws, ordinances, rules, regulations and policies of all governmental authorities having jurisdiction over the Airport, including policies adopted by LESSOR, as such laws, ordinances, rules, regulations and policies apply to the use and operation of Airport property, facilities and operations as those laws, ordinances, rules, regulations and policies now exist or may hereafter become effective. 13. SUBLETTING: LESSEE shall not sublet any part of the premises without the prior written approval of LESSOR, such approval not to be unreasonably withheld. Subleases shall comply with all laws, ordinances, rules, regulations and policies applicable to the use and operation of Airport property, facilities and operations as those laws, ordinances, rules, regulations and policies now exist or may hereafter become effective. A consent to sub-lease by LESSOR shall not be construed to be a consent to any subsequent sub-lease. 14. ASSIGNMENT: LESSEE shall not assign this Lease without the prior written approval of LESSOR. Such assignment shall be in conformance with all applicable Airport Board, local, state and federal laws, ordinances, rules, regulations and policies. All assignees shall comply with all laws, ordinances, rules, regulations and policies applicable to the use and operation of Airport property, facilities and 4 operations as those laws, ordinances, rules, regulations and policies now exist or may hereafter become effective. A consent to assignment by LESSOR shall not be construed to be a consent to any subsequent assignment-. 15. MISCELLANEOUS PROVISIONS: A. The parties agree that LESSOR, through its Airport Manager or other person authorized by the Airport Manager, may enter upon the leased premises at any reasonable time to make such inspections as LESSOR may deem necessary to the proper enforcement of any term, provision or condition of this Lease. No such entry or inspection by LESSOR is required by this provision, and the failure of LESSOR to enter and make inspection shall not alter the relationship of the parties and their respective rights and duties provided by this Lease. LESSEE shall be granted the right of quiet enjoyment upon performance of all terms of this Lease. B. LESSOR may further develop or improve Airport property and facilities, regardless of the desire or views of LESSEE regarding any such development or improvement, and without interference or hindrance on the part of LESSEE and without liability to LESSEE, provided the operations of the LESSEE are not unreasonably interrupted. C. LESSOR reserves the right, but shall not be obligated to LESSEE, to maintain and keep in repair the landing area of the Airport and all publicly owned facilities of the Airport, together with the right to direct and control all activities of LESSEE in that regard. D. LESSOR reserves the right to take any action necessary or desirable by LESSOR to protect the operations of the Airport against obstruction, or any other activity interfering with the efficient operation of the Airport, together with the right to prevent LESSEE from erecting, or permitting to be erected, any building or other structure on the Airport which, in the opinion of the Airport Manager, would limit the usefulness of the Airport or constitute a hazard to aircraft. LESSEE shall limit the building area to that portion of the property which is outside of the building restriction line as defined by the Airport Layout Plan and to a height not to exceed thirty five (35) feet. E. During time of war or national emergency, LESSOR shall have the right to lease the landing area or any part thereof to the United States of America for military use, and, if any such lease is executed, the provisions of this Lease shall be suspended insofar as they are inconsistent with the provisions of the lease agreement with the United States of America. F. This Lease shall be subordinate to the provisions of any existing or future agreement between LESSOR and the United States of America relative to the operation or maintenance of the Airport, the execution of which has been or may be required as a condition to the expenditure of federal funds for the 5 development of the Airport. G. If the leased premises or any interest therein is taken as a result of the exercise of the right of eminent domain, this Lease shall terminate as to such portion as may be taken. If the portion taken does not feasibly permit the continuation of the LESSEE's operations, LESSEE shall have the right to terminate this Lease. Such termination shall be effective as of the date LESSEE's operations cease. LESSEE shall be entitled to a portion of the award representing its interest in the premises. LESSOR shall be entitled to the remainder of the award. A. At no expense to LESSOR, LESSEE shall defend against and indemnify fully and save harmless the Board of the Yakima Air Terminal - McAllister Field, the Yakima Air Terminal - McAllister Field and its employees, the City of Yakima and Yakima County and their elected and appointed officials, employees and agents, from any and all liability, damages, suits, claims, actions, judgments or decrees, made against the Board of the Yakima Air Terminal - McAllister Field, the Yakima Air Terminal - McAllister Field or its employees, the City of Yakima or Yakima County or their elected and appointed officials, employees and agents, including all expenses incidental to the investigation and defense thereof, including reasonable attorney fees, based on or arising from the occupancy or use of the leased premises by LESSEE or as a result of LESSEE'S operations at the Airport or from any other act or omission of LESSEE, its servants, employees, agents, invitees, independent contractors or any other entity, person, firm or corporation acting on behalf of LESSEE or under its direction, whether such claim shall be by LESSEE or a third party; provided, however, that LESSEE shall not be liable or any injury, damage or loss occasioned solely by the negligence of LESSOR, its agents or employees. LESSOR shall give to LESSEE prompt and reasonable notice of any such claims or actions and LESSEE shall Dave the right to investigate, compromise and defend the same to the extent of its interest. B. LESSOR agrees to defend, indemnify and hold LESSEE harmless against and from any claim or liability arising from or alleged to arise from the presence of hazardous material or toxic waste on the subject leased premises at the inception of this Lease and the introduction to the premises of such materials due to LESSOR'S activities or under its control. The provisions of this Sub-section shall survive the termination of this Lease. C. LESSEE shall keep and hold the Board of the Yakima Air Terminal - McAllister Field, the Yakima Air Terminal - McAllister Field and its employees, the City of Yakima and County of Yakima, their elected and appointed officials, agents and employees, free and harmless from any and all claims and actions, loss, damage, expense or cost, including reasonable attorneys fees, incidental to 0 the investigation and defense thereof, resulting from, arising out of, or caused by LESSEE resulting in any liability under the Federal Comprehensive Environmental Response Compensation Liability Act of 1980, as amended, 42 U.S.C. 9601 et seq.; Hazardous Materials Transportation Act, 49 U.S.C. 1801 et seq.; Resource Conservation and Recovery Act, 42 U.S.C. 6901 et seq.; the Clean Water Act, 42 U.S.C. 1251 et seq.; the Washington Environmental Policy Act, RCW Ch. 43.21 C; the Washington Water Pollution Control Act, RCW Ch. 90.48; the Washington Hazardous Waste Management Act, RCW Ch. 70.105; the Washington Model Toxic Control Act, RCW Ch. 70.105D, and the regulations promulgated thereunder, or under any applicable local or state environmental ordinance, statute, law, rule or regulation. The provisions of this Sub-section shall survive the termination of this Lease. 17. INSURANCE: LESSEE shall provide LESSOR a certificate of insurance or other proof of insurance acceptable to LESSOR, evidencing an insurance policy naming the Board of the Yakima Air Terminal - McAllister Field; Yakima Air Terminal - McAllister Field; the City of Yakima and County of Yakima as additional insureds. Limits of Comprehensive General Liability insurance coverage not less than $1,000,000 per occurrence for bodily injury and property damage covering LESSEE's occupancy of and activities pertaining to the leased premises. LESSEE specifically agrees that insurance limits shall be reviewed at least every five (5) years and that LESSOR may make reasonable adjustments to the required limits. Not less than 30 days written notice, or other such time period as may be acceptable to LESSOR, must be supplied to LESSOR in the event of cancellation, material change to the policy or non-renewal of any or all policies. Certificate shall be issued by carrier(s) with a minimum A.M. BEST rating of A-VII which is admitted in the State of Washington or other such carriers as shall be acceptable to LESSOR. A. TENANT IMPROVEMENTS: In the event the construction in accordance with SECTION 12-IMPROVEMENTS herein, or improvements thereto, are partially or totally damaged by fire or other casualty, the LESSEE shall repair or replace the same at its own expense with due diligence. The new improvements shall be at least the same size, design and quality as that which existed prior to any damage or destruction. Both parties agree, however, that any insurance proceeds shall be first applied to the cost of repair or replacement of improvements. LESSEE may elect not to repair or replace said construction or improvements. LESSEE shall advise LESSOR of its intent within thirty (30) days of the damage 7 or destruction. If LESSEE elects not to repair or replace the improvements, this Lease shall be terminated. In such event, LESSEE shall restore the Premises to substantially the same condition as existed prior to LESSEE constructing its improvements on the property. B. OTHER AIRPORT PROPERTY: In the event of damage or destruction of Airport property caused by the LESSEE, its agents, employees, aircraft or other equipment, LESSEE agrees to repair, reconstruct, or replace the affected property to the condition which existed prior to such damage or destruction, to the extent that same is not covered by insurance required under this Lease. LESSEE further agrees to cause such repair, reconstruction or replacement or affected property with due diligence. In such case, LESSEE shall be entitled to retain the insurance proceeds. A. The failure by LESSEE to pay rent in the amounts and at the times specified herein, or the failure by LESSEE to otherwise comply with any term, provision or condition of this Lease, shall constitute grounds for termination of this Lease and forfeiture of all rent paid by LESSEE to the time of termination. This Lease and tenancy shall terminate and rent paid shall be forfeited for cause as specified above on written notice by LESSOR to LESSEE stating the amount of rent in default or otherwise stating accurately the manner in which LESSEE fails or has failed to comply with this Lease. LESSEE shall make full payment or otherwise comply with this Lease in the manner specified in the notice within thirty (30) days (except ten calendar (10) days for payment of rent) from LESSEE's receipt of such notice, otherwise this Lease and tenancy shall be terminated and rent forfeited. Such notice shall be given in writing and served on LESSEE by personal delivery or mailed by certified mail with return receipt requested addressed to LESSEE at its address stated below LESSEE's signature to this Lease or such other address as the parties may advise each other in writing. It is further agreed that after receipt of notices and as an additional condition to avoid forfeiture, LESSEE shall pay LESSOR's costs and expenses, including attorney's fees, for the preparation and service of such notice. Nothing contained herein shall release or diminish LESSEE's obligation to pay rent for the full term of this Lease save such amount as LESSOR recovers as rent from any subsequent lessee during the term of this Lease. Notices shall be deemed received three (3) days after mailing to LESSEE at the address below LESSEE's signature to this Lease or such other address as the parties may advise each other in writing, B. As additional and not alternative remedy, optional with LESSOR and upon thirty (30) days written notice to LESSEE, should LESSEE be in default hereunder other than default in the payment of rent, LESSOR may cure or correct the same and the cost of such action by LESSOR shall immediately become due and payable from LESSEE, together with late fees on said sum at a 8 rate of eighteen percent (18%) per annum, and the non-payment of said sum by LESSEE shall be adequate grounds for LESSOR to invoke the other remedies as provided in this Lease. C. Upon termination of this Lease for any reason, LESSEE shall immediately surrender the premises to the LESSOR in good condition and repair, ordinary wear and usage excepted; and LESSEE shall remove all of LESSEE'S personal property, trade fixtures, equipment or improvements removable by prior agreement with LESSOR from the premises and shall repair any damage to the premises caused by such removal. Any personal property of LESSEE, or anyone claiming under LESSEE, which shall remain upon the premises at the expiration or termination of this Lease shall be deemed to have been abandoned and may be retained by LESSOR as LESSOR's property or disposed of by LESSOR in such manner as LESSOR sees fit without compensation to any party. 20. INSOLVENCY: In the event LESSEE is declared bankrupt by a court of competent jurisdiction or in the event LESSEE makes an assignment for the benefit of creditors, or if a receiver otherwise is appointed for LESSEE, or in the event LESSEE's leasehold estate is subjected to execution to satisfy any judgment against LESSEE, then in that event LESSOR may immediately or at any time thereafter without notice or demand enter into and upon the premises or any part thereof and repossess the same and expel LESSEE or any person upon the premises and remove their effects, and thereupon this Lease and the tenancy hereby created shall absolutely terminate, without prejudice to any remedies which might otherwise be available to LESSOR for collection of past due or future rent. It is understood and agreed that the mortgagee (ref. SECTION 3) shall have the option to cure any default under this Section. 21. VENUE, ATTORNEY FEES: In the event of litigation to enforce the rights and obligations hereunder, venue shall lie in Yakima County Superior Court, and the prevailing party shall be entitled to its reasonable attorney fees in addition to court costs. 22. NON-DISCRIMINATION CLAUSE: To the extent required by law, LESSEE, for itself, its personal representative, successors in interest and assigns, as a part of the consideration hereof, does hereby covenant and agree as follows: A. No person, on the grounds of race, color, religion, sex, age, marital status, handicap or national origin, shall be unreasonably excluded from participation in, denied the benefits of, or be otherwise subjected to discrimination in LESSEE's personnel policies and practices or in the use or operation of LESSEE's services 9 or facilities. B. LESSEE agrees that in the construction of any improvements on, over or under Airport land and the furnishing of services thereon, no person, on the grounds of race, color, religion, sex, marital status, handicap, age or national origin, shall be unreasonably excluded from participation in, denied the benefits of, or otherwise be subjected to discrimination. C. LESSEE shall use the Premises in compliance with all other requirements imposed by or pursuant to Title 49. Code of Federal Regulations, Department of Transportation, Subtitle A, Office of the Secretary, Part 21, Non-discrimination in Federally Assisted Programs of the Department of Transportation-Effectuation of Title VI of the Civil Rights Act of 1964, and as said Regulations may be amended. D. It is the policy of the Department of Transportation that minority business enterprise as defined in 49 CFR Part 23, i.e., firms owned and controlled by minorities; firms owned and controlled by women and firms owned and controlled by financially disadvantaged persons; shall have the maximum opportunity to participate in the performance of leases as defined in 49 CFR Section 23.5. Consequently, this Lease is subject to 49 CFR Part 23 as applicable. LESSEE hereby assures that no person shall be excluded from participation in, denied the benefits of or otherwise discriminated against in connection with the award and performance of any contract, including leases, covered by 49 CFR Part 23 on the grounds of race, color, national origin or sex. LESSEE hereby assures that it will include the above clauses in all sub-leases and cause sub-LESSEEs to similarly include clauses in further sub-leases. 23. AIRPORT SECURITY AND ACCESS CONTROL. Access to movement/non- movement area/ingress and egress is not permitted under any circumstances. 24. ACCESS ACROSS LEASED PROPERTY. Lessee acknowledges and permits the customers and employees of Budget Rent A Truck to pass on and off of the dirt truck storage lot immediately adjacent to and west of the garage across the paved parking lot leased to the Lessee. Budget Rent A Truck vehicles will not be allowed to parked on the asphalt parking lot. Violations of this policy will be reported to airport administration who will request the moving of a parked truck by Budget as soon as possible. Lessee shall not have rental trucks towed from the parking lot without the prior knowledge of approval by airport management. If/when the leased parking lot is adequately signed and marked by Lessee as a `no parking/tow zone', Lessee is permitted to have any other vehicle towed at owner's expense. M 25. OFFICIAL NOTIFICATIONS: For formal purposes of notification concerning anything having to do with this lease, the compliance with specific provision of the leases, the property, and/or use of the facilities and property, the notification address will be: PocketiNet Communications, Inc. 11 1 Walla Walla, Washington 99362 The failure by one party to require performance of any provision of this Agreement shall not affect that party's right to require performance at any time thereafter, nor shall a waiver of any breach or default of this Agreement constitute a waiver of any subsequent breach or default or a waiver of the provision itself. This document embodies the entire Agreement between the parties with respect to the subject matter herein contained. No amendments or modifications hereof shall be enforceable unless in writing, signed by the party to be charged. 28. Time is of the essence of this entire Lease. M �1�*Z TAKIthA AIR TERMINAL - McALLISTER FIELD 2400 W. Washington Avenue Y-v,ki x, q (509) 575-6149 - phone (50• ) 575-6185 William A. Wheeler, Chairman STATE OF WASHINGTON County of Yakima I certify that I know or have satisfactory evidence that William A. Wheeler and Don Baumbach signed this instrument, on oath stated that they were authorized to execute the instrument and acknowledged it as the Chairman and the Secretary respectively of the Board of the Yakima Air Terminal - McAllister Field to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument. Date -1 2 1 - BY: Notary Public Appointment Expires 30 Cj Cn: -'a4' -z /I/11111jjk%% 13FJ Marshall Keymer VP of Operations PocketiNet Communications, Inc. 45 Terminal Loop Road, Suite 210 Walla Walla, Washington 99362 (509) 526-5026 - phone —A"OV STATE OF WASHINGTON IE? County of I certify that I know or have satisfactory evidence that Mr. Marshall Keymer signed this instrument, on oath stated that they were authorized to execute the instrument and acknowledged it as the Vice President of Operation for PocketiNet Communications, Inc., to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument. I M#liii, NAt,4 ..gsko D to lz;& -je -n Abr 0% C) By: Notary � NOTARY ;K ublic Appointment Expires PUBILIC *..O;kt 4 ** '05: 24 Or' W M Exhibit "A!* lease agreement between Yakima Air Terminal and PecketiNet Effective Date: September 1, 2012 Lease Area: Office 1,136 sq ft Garage 3,214 sq ft TOTAL 4,350 SQ FT ke r