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HomeMy WebLinkAboutCleartalk - Lookout Point Communication Site Sublease Agreement DRAFT CITY OF YAKIMA LOOKOUT POINT COMMUNICATION SITE SITE SUBLEASE AGREEMENT THIS SITE SUBLEASE AGREEMENT (this "Sublease ") is entered into this day of ovk e t, 2004 between the City of Yakima, a municipal corporation ( "Sublessor ") and afea V c% 1k ( "Sublessee ") WHEREAS, Sublessor possesses pursuant to a prior Lease Agreement (the "Master Agreement ") dated June 19, 1986 entered into with Pacific Northwest Bell Telephone Company, a Washington Corporation, dba U.S. West Communications, since assigned to Elltell Wireless, Inc, a Washington Corporate as Lessor, the right to use and Sublease a portion of the site described in the attached Exhibit A located at Lookout Point Communication Site (the "Site "); WHEREAS, Sublessee desires to use certain space on the Site selected by Sublessor and Sublessor is willing to permit such use on the terms and conditions set forth herein: NOW, THEREFORE, for good and valuable consideration, the parties agree as follows: 1. Premises. Subject to the following terms and condition, 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 that portion of the Property described in Exhibit B attached hereto, together with easements for access and utilities as provided herein (collectively, the "Premises "). 2. Use. The Premises may be used by Sublessee for the transmission and reception of radio communication signals using the radio(s), antenna(s) and frequencies as described in Exhibit B, provided that Sublessee shall not commence transmission or reception of radio communications signals without first providing, evidence of compliance with paragraph 5. Sublessor agrees to cooperate with Sublessee in obtaining, at Sublessee's expense, all licenses and permits required for Sublessee's use of the Premises (the "Governmental Approvals "). Sublessee's use of the property shall be limited to use as a communications site only. 3. Term. The term of this Sublease shall be one (1) year commencing upon the date previously set forth in this document (the "Commencement Date ") and terminating at Midnight, December 31, 2004. Sublessee shall have the right to extend this Sublease for five 3/15/2004 1 additional one (1) year terms. Each renewal term shall be on the same terms and conditions set forth herein, except that Rent shall be increased January 1 of each year by four percent (4 %), rounded to the nearest five dollar increment. Sublessor shall communicate the amount of rental adjustment to Sublessee. This Sublease shall automatically be renewed for each successive renewal term unless Sublessee shall notify Sublessor of Sublessee's intention not to renew this Sublease at least sixty (60) days prior to the expiration of the term or any renewal term. 4. Rent. a. Upon the Commencement Date, Sublessee shall pay Sublessor, as rent, the sum of One Thousand, One Hundred Dollars ($1,100) per year ( "Rent ") per transmitter. Should the commencement date be other than January 1, the rent shall be prorated from the commencement date to December 31 of the current year. Rent shall be payable in advance annually on the first day of each subsequent year of the term of this Sublease to Sublessor at the address specified in paragraph 13 below. b. If this sublease is terminated at a time other than on the last day of the yearly anniversary date, Rent shall be prorated as of the date of termination. This Sublease may be terminated by the Sublessee on any annual anniversary date during the term of this agreement on sixty (60) days notice given to the Sublessor. 5. Interference a. Sublessee shall not use any portion of Sublessor's properties in any way, which interferes with the operations of Sublessor, its tenants, licensees, invitees or agents, ( "Other Users "). Such interference shall be deemed a material breach by Sublessee and Sublessee shall have the responsibility to terminate said interference immediately. b. 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. c. Prior to installing any additional equipment or frequencies the subleasee shall notify the Sublessor in writing at least thirty (30) days prior to the intended installation. d. Sublessee acknowledges and understands that other equipment on site may interfere with Sublessee's equipment. If such interference occurs. Sublessee specifically waives all 3/15/2004 2 DRAFT claims in law or in equity it may have against Sublessor as a result of the interference, including but not limited to actual damages, lost profits, lost revenues, loss of goodwill and consequential damages. e. If applicable, to ensure non - interference with other users the Subleasee shall provide the following information to the Sublessor: 1. SSID 2. Encryption key 3. IP addresses of all equipment 4. A Password for Read Only to Parent This information shall be used only to verify the Sublessee's equipment and system parameters, to ensure that they are not the source of any interference being caused to other users of the site. 6. Improvements; Utilities; Access. a. Sublessor shall provide Sublessee ingress, egress, and access suitable for vehicle travel between the leased 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 (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 Approvals necessary to the operation of the Sublessee's equipment or Sublessee's business: or (c) by Sublessee if the Premises are or become unacceptable under Sublessee's design or engineering specification for its communications system. (d) by Sublessor if needs and /or conditions arise that require the Sublessor to modify the utilization of the Premises to accommodate the public safety needs that the Sublessor is responsible for providing. 8. Taxes. Sublessee shall pay before delinquency any personal property taxes assessed on, or any portion of such taxes attributable to the Sublessee's equipment. Sublessee shall pay to Sublessor, within 3/15/2004 3 DRAFT 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. Sublessee will provide Comprehensive General Liability Insurance in an aggregate amount of $100,000, and name Sublessor, their agents, officers and employees and Lessor, as additional insured's on the policy or policies. Sublessee may satisfy this requirement by obtaining appropriate endorsement that is acceptable to Sublessor to any umbrella policy of liability insurance Sublessee may maintain. b. 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 enumerate 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 Antenna Facilities are destroyed or damaged so as, in Sublessee's judgment to hinder the effective use by the Sublessee, 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 the remainder of that year 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 3/15/2004 4 DRAFT 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 Lessor harmless form any and all claims arising from the negligence or intentional acts of Sublessor or Lessor, or their respective agents and independent contractors. 13. Notices. All request, 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 Communications Manager 200 S. 3 St. Yakima, WA 98901 If to Sublessee, to: ., / c/ eaa }f V'7�t� /4- , j3 t), LIi . ► ✓t «, le /4 .) , 14. Improvements and Changes. Sublessee shall be required to obtain Sublessor's approval in writing before making any improvements or changes other than specified herein. Sublessee shall pay for all changes they make to the property. If Sublessee moves or damages any property on site, Sublessee shall pay all costs to restore the property so move or damaged. 15. The Master Agreement. Sublessee acknowledges that all rights of Sublessor to offer to Sublease use of a portion of the property are derived from the Master agreement between Sublessor and Pacific Northwest Bell Telephone Company, a Washington Corporation, dba U.S. West Communications, dated June 19, 1986 since assigned to ELLTEL Wireless, Inc, 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 3/15/2004 5 DRAFT Sublease shall terminate, and Sublessee shall have no cause of action on account of said termination. 16. Successors and Assign. This Sublease shall be binding upon and inure to the benefit of the parties, their respective successors, personal representatives, and assigns. 17. Work on the Tower. Each of the parties to this Sublease and their employees and agents assumes the risk of working on the Tower equipment and the Premises associated with the Sublease. Further, each of the parties agrees to indemnify, defend and hold harmless the other party from any injury incurred while working on the Tour equipment and Premises unless the inquiry is caused by neglect or an intentional act 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. 18. Restoration of premises upon abandonment or termination. All rights hereunder shall cease and terminate if and when use of said parcel for said purposes shall have been abandoned, and two years 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 said property to a condition satisfactory to Sublessor; 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 facilities located on said property, and if it does not do so, Sublessor shall have the election of removing such facilities and charging Sublessee for the cost of such removal or retaining such facilities in full satisfaction of Sublessee's obligation to remove the same. 19. Liens for labor or material. Sublessee shall keep said leased premises free and clear of mechanic's liens and nay and all other liens for labor and materials caused to be used on said leased property by Sublessee. 20. Miscellaneous. a. The substantially prevailing party in any litigation arising hereunder shall be entitled to its reasonable attorneys' feel and court costs, including appeals, if any. b. This Sublease constitutes the entire agreement and understanding of the parties, and supersedes all offers, 3/15/2004 6 DRAFT 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. This Sublease shall be construed in accordance with the laws of the state in which the Property is located. Venue shall be in Yakima County, Washington. e. If any of this Sublease if 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 Its cii 1 I • SUBLESSEE: Y- By Its -- L CITY CONTRACT N0: RESOLUT ION N0: 3/15/2004 7 DRAFT STATE OF s ht -(n�&- A" ) )ss County of YA-1 ) On this 2.8 day of Yh t=fr � , 200V, before me, a Notary Public in and for the State of Watts personally appeared Cre , known to me to be the C®tj M of City or- the corporation that executed the within and foregoing instrument, and acknowledged the 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 In was authorized to execute said instrument and that the seal affixed thereto is the corporate seal of said corporation. WITNESS my hand and the official seal affixed the day and year first above written. P EEN 15siC S ' R o xf M M H 4 to * Or " PUe� / R Y `n NOTARY PUBLIC in and for the 1"0:172, � C ::: N Cm/ 3/15/2004 8 DRAFT STATE OF )ss County of AlYk ) On this 2S day of i� , 20,E before me, a Notary Public in and for the State of ado personally appeared h l-1 t4 447 , known to me to be the ofA.! tA ..��.14,. e, the corporation that executed the within and foregoing instrument, and acknowledged the 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 hi.ett . 44 i/ was authorized to execute said instrument and tht . rthe seal affixed thereto is the corporate seal of said corporation. WITNESS my hand and the official seal affixed the day and year first above written. � NOTARY PU : LIC in and for the State of My commission expires / /i 3/15/2004 9 DRAFT EXHIBIT A LEGAL DESCRIPTION To the Site Sublease agreement dated January 1, 2004 between the City of Yakima, as Sublessor, and 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 0 35'47" west along the east line of said section 2647.78 feet; thence south 89 15'35" west 573.75feet; thence north 58 02'54 "west 769.70 feet; thence north 31 57'06" east 165.00 feet to the true point of beginning; thence north 31 57'06" east 75.00 feet; thence north 58 02'54" west 50.00 feet; thence south 31 57'06" west 75.00; 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. 3/15/2004 10 DRAFT Exhibit B EQUIPMENT DESCRIPTION To the Site Sublease agreement dated January 1, 2004 between the City of Yakima, as Sublessor, and Installation Date Transmitter of Building Space Requirements Tower Space Requirements Equipment Description to include antenna (may be attached) Frequency List: SSID /8 % E, Encryption Key_ — /182 Password IP Addresses: % 3/15/2004 11 Rx Date /Time APR- 05- 2004(M0N) 11:08 P.003 ACORQ CERTIFICATE OF LIABILITY INSURANCE 04/05/2 4 PRODUCER (805)549-7430 FAX (805)549-7044 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION Neal - Truesdal e Insurance Inc ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE License # 0368744 HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. 1400 Madonna Road San Luis Obispo, CA 93405 -6433 INSURERS AFFORDING COVERAGE NAIC# INSURED NTCH Idaho Inc. INSURERA National Farmers Union PMB813 703 Pier Ave. #B INSURERB Landmark American Hermosa Beach, CA 90254 INSURERC INSURER D INSURER E. COVERAGES THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR ADD'L TYPE OF INSURANCE POLICY NUMBER POLICY EFFECTIVE POLICY EXPIRATION LIMITS LTR 1NSRC DATE IMMIDDlYY) DATE (MIDDAY) GENERAL LIABILITY 2RUO384390 08/05/2003 08/05/2004 EACH OCCURRENCE $ 1,000,000 X COMMERCIAL GENERAL LIABILITY DAMAGE TO RENTED $ 300,000 u . r CLAIMS MADE X OCCUR MED EXP (Any one person) $ 5,000 A X PERSONAL & ADV INJURY $ 1,000,000 GENERAL AGGREGATE $ GEN'L AGGREGATE LIMIT APPLIES PER PRODUCTS - COMP /OP AGG $ 2,000,000 POLICY n JECT LOC AUTOMOBILE LIABILITY 2RUO384390 08/05/2003 08/05/2004 COMBINED SINGLE LIMIT (Ea accident) $ X ANY AUTO 1,000,000 ALL OWNED AUTOS BODILY INJURY A X SCHEDULED AUTOS (Per person) $ HIRED AUTOS BODILY INJURY NON -OWNED AUTOS (Per accident) $ PROPERTY DAMAGE $ (Per accident) GARAGE LIABILITY AUTO ONLY - EA ACCIDENT $ ANY AUTO OTHER THAN EA ACC $ AUTO ONLY AGG $ EXCESSIUMBRELLALIABILITY LHA210235 10/16/2003 08/26/2004 EACH OCCURRENCE $ 5,000,000 X OCCUR CLAIMS MADE AGGREGATE $ 5,000,000 B $ DEDUCTIBLE $ RETENTION $ $ WORKERS COMPENSATION AND 2WCO384391 08/05/2003 08/05/2004 X TORYLIMITS 1 O EMPLOYERS' LIABILITY A ANY PROPRIETOR /PARTNER /EXECUTIVE E L EACH ACCIDENT $ 1,000,000 OFFICER /MEMBER EXCLUDED? E L DISEASE - EA EMPLOYEE $ 1,000,000 If yes, describe under SPECIAL PROVISIONS below E.L DISEASE - POLICY LIMIT $ 1,000,000 OTHER DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES I EXCLUSIONS ADDED BY ENDORSEMENT! SPECIAL PROVISIONS Certificate Holder is Named as Additional Insured as Respects to Co- location Lookout Point CERTIFICATE HOLDER CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, THE ISSUING INSURER WILL ENDEAVOR TO MAIL 30 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, City of Yakima BUT FAILURE TO MAIL SUCH NOTICE SHALL IMPOSE NO OBLIGATION OR LIABILITY 200 South Third Street OF ANY KIND UPON THE INSURER, ITS AGENTS OR REPRESENTATIVES. Yakima, WA 98901 AUTHORIZED REPRESENTATIVE . �'ls7o"'t p Jack Neal /LINDAE ACORD 25 (2001108) ©ACORD CORPORATION 1988 Rx Date /Time APR- 05- 2004(MON) 11:08 P. 004 IMPORTANT If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). DISCLAIMER The Certificate of Insurance on the reverse side of this form does not constitute a contract between the issuing insurer(s), authorized representative or producer, and the certificate holder, nor does it affirmatively or negatively amend, extend or alter the coverage afforded by the policies listed thereon. ACORD 25 (2001/08) erry R EC EI V . . MAY 2 8 2004 PUBLIC SAFETY OFFICE OF C Yakima Public Safety Co „ : oiWee 200 South Third Street YA -, ' Yakima, WA 98901 I am. � • May 27, 2004 9 1 1 COMMUNICATIONS MEMORANDUM TO: Dick Zais, City Manager FROM: Wayne Wantland, Communications Manager Z.94 ---- -- SUBJECT: Radio Site Sublease Please sign (blue tabs) the enclosed Look Out Point Radio Site Subleases. We have found a spot to lease space to Cleartalk that will generate $1100 per year. Once you have signed please forward to Karen Roberts for notorization. Business Office (509) 575 -6048 FAX (509) 576 -6555 C LE Ark IRTALK Wireless made simple.' 5 -25 -04 Wayne Wantland Communications Manager City of Yakima 200 S. 3 St. Yakima WA. 98901 Wayne, Please find enclosed 3 executed copies of the Site Sublease Agreement for Lookout Point in Yakima. Also attached is a certificate of liability insurance and a rent check prorated for the year of 2004. I will need 1 executed original returned for my files. I have talked with Dave Brush and have arranged to install our equipment during the second week in June. Dave has been very helpful and I look forward to working with him in the future. Sincerely, Larry Curry Cleartalk 208 - 233 -6246 0 208 -221 -3912 M Larry@Cleartalk.net P 208.233.6246 F 208.233.6244 233 North Main Pocatello, Idaho 83204 �tCt'NVIY_t� `{ • � 4 ' y OFFICE OF THE CITY CLERK 129 North Second Street Yakima, Washington 98901 ' r I r r� N A i V �r Plume (S09) 575 -6037 * Fox (509) 576 -6614 R hrkkr}U June 1, 2004 t..,a.rry f..'urry C:: "lear(ttlk 233 North Main Pocatello ID 83204 SUBJEC' 1: Agreement with the City of Yakima l?nclosed is a fully executed original of the Sublease Site Agreement with the City of Yakima for use of the I,00kont Point Communicate Site for your records. Sincerely, 4 . . Lida Watkins Records Clerk Copy: Wane Wantland Communications Manager Enclosure VJhici a A Nnuntan 1.! r i