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AG 17-1332/2017 I I RETURN TO: Thomas Fichtner EXT: 2547 CITY OF FEDERAL WAY LAW DEPARTMENT ROUTING FORM 1. ORIGINATING 2. ORIGINATING 4. TYPE ❑ CONTRACTOR ❑ PUBLIC ❑ PROFESSIONAL ❑ GOODS ❑ REAL ❑ ORDINANCE ❑ CONTRACT ICJ OTHER 5. PROJECT 6. NAME ADDRESS: E SIGNATURE 7. EXHIBITS OTHER 8. TERM: 9. TOTAL (IF REIMBURSABLE IS SALES RETAINAGE: A PURCHASING: 10. DOCUMENT ❑ PROJECT ❑ DIRECTOR ❑ RISK ❑ LAW 11. COUNCIL 12. CONTRACT ❑ SENT ❑ ATTACH: ❑ CREATE / LAW (SIGNATORY 'tirCITY ❑ ASSIGNED ❑ SIGNED COMMENTS: DEPT./DIV: Information Technology STAFF PERSON: Thomas Fichtner EXT: 2547 3. DATE REQ. BY: ASAP OF DOCUMENT (CHECK ONE): SELECTION DOCUMENT (E.G., RFB, RFP, RFQ) WORKS CONTRACT ❑ SMALL OR LIMITED PUBLIC WORKS CONTRACT SERVICE AGREEMENT ❑ MAINTENANCE AGREEMENT AND SERVICE AGREEMENT ❑ HUMAN SERVICES / CDBG ESTATE DOCUMENT ❑ SECURITY DOCUMENT (E.G. BOND RELATED DOCUMENTS) ❑ RESOLUTION AMENDMENT (AG #): ❑ INTERLOCAL Site Lease Agreement NAME: WiFi Site Lease - The Centre Building OF CONTRACTOR: DM Ventures FW Center, LLC do MJR Development 6725 116th Ave NE, Ste. 100 TELEPHONE (425) 822-4466 -MAIL: mikem @mjrdevelopment.com FAX: NAME: Michael J. Raskin TITLE AND ATTACHMENTS: ❑ SCOPE, WORK OR SERVICES ❑ COMPENSATION ❑ INSURANCE REQUIREMENTS /CERTIFICATE I ALL REFERENCED EXHIBITS ❑ PROOF OF AUTHORITY TO SIGN ❑ REQUIRED LICENSES ❑ PRIOR CONTRACT /AMENDMENTS COMMENCEMENT DATE: 1 /1 /2017 COMPLETION DATE: 12/31/2021 COMPENSATION $ 4,152 /year - ($20,760 for contract term) (INCLUDE EXPENSES AND SALES TAX, IF ANY) CALCULATED ON HOURLY LABOR CHARGE - ATTACH SCHEDULES OF EMPLOYEES TITLES AND HOLIDAY RATES) EXPENSE: ❑ YES A NO IF YES, MAXIMUM DOLLAR AMOUNT: $ TAX OWED ❑ YES A NO IF YES, $ PAID BY: ❑ CONTRACTOR ❑ CITY RETAINAGE AMOUNT: ❑ RETAINAGE BY (SEE CONTRACT) OR ❑ RETAINAGE BOND PROVIDED PLEASE CHARGE TO: 502 - 1100 -046- 518 -93 -452 /CONTRACT REVIEW INITIAL / DATE REVIEWED INITIAL / DATE APPROVED MANAGER MANAGEMENT (IF APPLICABLE) �J APPROVAL (IF APPLICABLE) COMMITTEE APPROVAL DATE: < S COUNCIL APPROVAL DATE: t-A 7/7 SIGNATURE ROUTING L n TOVENDOR /CONTRACTOR DATE SENT: DATE REC'D: �s`S /// SIGNATURE AUTHORITY, INSURANCE CERTIFI ATE, LICENSES, EXHIBITS ELECTRONIC REMINDER/NOTIFICATION FOR 1 MONTH PRIOR TO EXPIRATION DATE (Include dept. support staff if necessary and feel free to set notification more than a month in advance if council approval is needed.) INITIAL / D • TE IGNED DEPARTMENT • ' Alq (MAYOR OR DIRECTOR) •-*d►li*I� CLERK .' E I''��r�I AG# . G , COPY RETURNED I► ' 1E SENT: OF -28•-11- 2/2017 COUNCIL MEETING DATE: August 8, 2017 CITY OF FEDERAL WAY CITY COUNCIL AGENDA BILL ITEM #: 5d SUBJECT: WIFI SITE LEASE AGREEMENT POLICY QUESTION: Should the City of Federal Way enter into a site lease agreement for WiFi equipment space on The Centre Building with DM Ventures FE Center, LLC? COMMITTEE: FEDRAC MEETING DATE: July 25, 2017 CATEGORY: ® Consent I Ordinance ❑ City Council Business I Resolution Public Hearing Other STAFF REPORT BY: Thomas Fichtner DEPT: Information Technology Attachments: 1. Background Memorandum to the Finance, Economic Development and Regional Affairs Committee dated May 16, 2017. 2. WiFi Site Lease Agreement Options Considered: 1. Approve the Mayor's recommendation and forward to the Council Consent Agenda on August 8, 2017. 2. Deny approval of the Mayor's recommendation and provide staff with further direction. MAYOR'S RECOMMENDATION: Mayor recommends forwarding the WiFi Site Lease Agreement with DM Ventures FW Center, LLC • the August 8, 2017 Council Consent Agenda. MAYOR APPROVAL. DIRECTOR APPROVAL: ! �!y /t'/ e / Coun• P."7 Initial ate Initial /Date Initial /Date COMMITTEE RECOMMENDATION: I move to forward the proposed Agreement to the August 8, 2017 consent agenda for approval. Committee Chair 4A/Drty,/+- Committee Committee Member PROPOSED COUNCIL MOTION: "I move approval of the WiFi Site Lease Agreement with DM Ventures FW Center, LLC, and authorize the Mayor to sign said agreement." (BELOW TO BE COMPLETED BY CITY CLERKS OFFICE) UNCIL ACTION: APPROVED( n ❑ DENIED ❑ TABLED/DEFERRED/NO ACTION ❑ MOVED TO SECOND READING. (ordinances only) REVISED - 11/2016 COUNCIL BILL it 1ST reading Enactment reading ORDINANCE # RESOLUTION # CITY OF FEDERAL WAY MEMORANDUM TO: FINANCE, ECONOMIC DEVELOPMENT, AND REGIONAL AFFAIRS COMMIIIEE VIA: JIM FERRELL, MAYOR FROM: THOMAS FICHTNER, IT MANAGER SUBJECT: WIFI SITE LEASE AGREEMENT DATE: JULY 19, 2017 BACKGROUND In 2005, City Council approved a pilot project to install WiFi in two location in the City to test the concept of providing City-wide wireless Internet service. The result of this was that the cost to roll -out with the technology available at the time was cost - prohibitive. It was then Council's direction to relocate all of the WiFi equipment into the downtown core for economic development benefits. As part of this project, the City entered into a lease for space on the roof of the then Federal Way Center building. The building is now called "The Centre Building and the City has used this roof -top location to acquire redundant Internet service, as well as establish point -to -point connections to locations all over the downtown, as well as have a Safe City camera on top of the building. The City has negotiated with the new owners of the building and they are agreeable to continuing the lease for another 5 years with two 5 -year options to renew. The cost for this lease is currently in the Council Approved, 2017 -2018 Information Technology Operating Budget. The cost is $321 per month for the first 5 -year term, and then it increases to $346 per month for the second 5 -year term, and finally $381 per month for the third and final 5 -year term. The City is also responsible for paying the fee for electricity at $25 per month. SITE LEASE AGREEMENT THIS LEASE is entered into this 1st day of January, 2017, by and between the CITY OF FEDERAL WAY, WASHINGTON, a municipal corporation (hereinafter "City" or "Tenant ") and DM Ventures FW Center, LLC, a Washington limited Liability Company (hereinafter "Owner" or "Lessor "). This lease supersedes all previous leases between the parties. Lessor is the owner in fee simple of a parcel of land located in Federal Way legally described on the attached Exhibit A (the "Premises "). The Tenant desires to lease space on and air -space above the Premises for the installation of two radio panels as shown in Exhibit B attached herein. In consideration of their mutual covenants, the parties agree as follows: 1. Leased Premises. In consideration of the mutual agreements contained in this agreement and subject to the terms and conditions stated in this agreement, the Owner agrees to lease to the Tenant and the Tenant leases from the Owner a portion of rooftop as shown in Exhibits B and C of the building commonly known as The Centre Building ( "Building ") located at 2505 South 320th, described in Exhibit A attached herein. 2. Term. This Lease shall be five (5) years and shall commence on January 1, 2017 (the "Commencement Date ") and shall end at 12:00 a.m. (midnight) on the fifth (5th) anniversary of the Commencement Date unless terminated earlier pursuant to section 11 herein. This Lease may be renewed for two (2) additional five (5) year terms upon giving written notice to the Lessor not early than 180 days and not later than 90 days prior to the expiration date of the initial term or any optional terms. 3. Rent. During the first five (5) year term Tenant shall pay to the Owner rental fees in the amount of Three Hundred Twenty One Dollars and 00 /100 ($321.00) per month, due on the 1st day of each month starting on the Commencement Date of the Lease. The Rent shall be adjusted to Three Hundred Forty Six Dollars and 00 /100 ($346.00) per month during the first five -year extension period and Three Hundred Eighty One Dollars and 00 /100 ($381.00) per month during the second five -year extension period. 4. Permitted Use of Premises. The Tenant shall have the right to access, use, attach, or otherwise occupy the designated Premises for the purposes of installation, operation, inspection, repairs and maintenance, relocation, removal and perform other work on Tenant's telecommunication equipment as described in Exhibit B herein. At its sole option and cost, the City may elect to erect an enclosure to secure the equipment, provided such enclosure does not otherwise interfere with the other operations of the building. 5. Improvements. Tenant may update or replace the equipment from time to time provided that the replacement facilities are not greater in number than the existing facilities and that any change in their location on the Premises is approved in writing by Owner which approval shall not be unreasonably conditioned, delayed, or withheld and which shall be -I- pursuant to lawful authority. Subject to the foregoing, Tenant may change the Equipment configuration specified in attached Exhibit A or add facilities with the prior written approval of Owner. Tenant shall submit to Owner a written request for any such change or addition and any supplemental materials as may be requested, for Owner's evaluation and approval. Owner shall have thirty (30) days after receipt of all requested materials in which to respond to such request and unless Owner so notifies Tenant to the contrary such approval shall be deemed granted. 6. Premises Access. Tenant or its designee shall have reasonable access to the Premises 24- hours -a -day, 7 days -a -week. Owner retains and reserves the right to access the Premises at all times. 7. Utilities. The Lessor agrees to furnish, at additional charge of Twenty -Five and 00 /100 dollars ($25.00) per month to the Tenant the power supply that is necessary to power the equipment. The City shall be responsible for installing such supply line extensions /connections from the nearest power supply to the equipment. 8. Maintenance. Tenant shall, at its own expense, maintain the Equipment and the Premises the Equipment is on or attached to in a safe condition and in good repair. Additionally, Tenant shall keep the Premises free of debris caused by Tenant and anything of a dangerous, noxious or offensive nature or which would create a hazard or undue vibration, heat, noise or any interference with Owner services caused by Tenant. Tenant shall have sole responsibility for the maintenance, repair and security of its Equipment and leasehold improvements and shall keep the same in good repair and condition during the Lease term. Upon termination of this Lease, Tenant shall return the Premises to the same condition as prior to this lease, normal wear and tear excepted. 9. Compliance with Laws. Tenant's use of the Premises is subject to its obtaining all certificates, permits, zoning and other approvals that may be required by any federal, state or local authority or from any other necessary person or entity. Tenant shall erect, maintain and operate its Equipment in accordance with applicable site standards, statutes, ordinances, rules and regulations issued by the Federal Communications Commission, the City, federal or state government or any other governing bodies; provided, however, that Tenant shall not be required to comply where its rights have previously vested by operation of law. 10. Interference. Tenant shall not use the Premises in any way which unreasonably interferes with the existing use of the Premises by Owner, lessees, tenants or licensees of Owner, with rights to the Premises prior in time to Tenant's. Owner shall have the right to permit co- location of other telecommunications facilities on the Premises, provided such co- location does not otherwise violate any applicable law or unreasonably interfere with Tenant's transmission and signals use in connection with its operation of wireless communication service. In the event that any other tenant's activities interfere with Tenant's intended use of the Facilities, at Tenant's sole discretion, it may: a. Upon 30 days notice to Owner, terminate this Lease and restore the leased premises to its original condition, reasonable wear and tear accepted. In such event, Tenant shall be entitled to a pro rata refund of all pre -paid rent; or -2- b. Cooperate with all other users to identify the causes of and work towards the resolution of any electronic interference problem. 11. Termination. Either party may terminate the Lease upon giving a sixty (60) day written notice to the other. In the event the building is damaged or otherwise become unusable for technical or physical reasons, the Lease may be terminated by the City immediately. Upon termination, the City shall promptly remove all equipment and restore the Premises to its original condition except for normal wear and tear. 12. Indemnity and Insurance. a. Disclaimer of Liability. Owner shall not, at any time, be liable for injury or damage occurring to any person or property arising out of Tenant's construction, installation, maintenance, repair, use, operation, condition or dismantling of the Premises or Tenant's Equipment; nor shall Tenant be liable, at any time, for any like injury or damage arising from the Owner's ownership, acts or omissions related to the Premises; provided, further, that neither Owner nor Tenant shall be liable for claims arising from the other's sole, proportionate concurrent negligence, breach of contract or intentional acts or omissions of their officers, boards, commissions, employees, agents, attorneys and contractors. The provisions of this Section shall survive the expiration, revocation, or termination of this Lease. b. Indemnification and Hold Harmless. Tenant and Lessor shall, at their sole cost and expense, indemnify and hold harmless one another and their officers, boards, commissions, employees, agents, attorneys, successors, assigns and contractors from and against any and all liability, damages and claims (including, without limitation, reasonable fees and expenses of attorneys, expert witnesses and consultants), which may be asserted by reason of any act or omission of each, its employees, agents or contractors or which may be in any way connected with the other's intentional acts, omissions or breaches of contract. The provisions of this Section shall survive the expiration, revocation, or termination of this Lease. c. Insurance. During the term of this Lease, Tenant shall maintain in full force and effect and at its sole cost and expense, and naming Owner, its officers, boards, commission, employees and agents as additional insureds, the following types and limits of insurance: i. Comprehensive commercial general liability insurance with minimum limits of One Million Dollars ($1,000,000) per occurrence and Three Million Dollars ($3,000,000) in the annual aggregate. -3- ii. Comprehensive automobile liability insurance with combined single minimum limits of One Million Dollars ($1,000,000) per occurrence and Three Million Dollars ($3,000,000) in the annual aggregate. iii. Worker's compensation insurance and such other insurance as may be required by law. iv. Evidence of Insurance. Certificates of insurance for each insurance policy required by this Lease, along with written evidence of payment of required premiums, shall be filed and maintained with Owner prior to commencement of the term of this Lease and thereafter. v. Cancellation of policies of Insurance. All insurance policies maintained pursuant to this Lease shall contain the following or substantially similar endorsement: "At least thirty (30) days prior written notice shall be given to Owner by the insurer of any intention not to renew such policy or to cancel, replace or reduce coverage regarding the Premises, such notice to be given by registered mail." 13. Holding Over. Any holding over after the expiration of the term hereof, with the consent of the Lessor, shall be construed to be a tenancy from month to month and shall otherwise be on the terms, covenants and conditions herein specified. 14. Acceptance of Premises. Tenant accepts the Premises in the condition existing as of the Commencement Date. Lessor makes no representation or warranty with respect to the condition of the Premises. 15. Notices. All notices, 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, to the following addresses: If to City, to: City Attorney 33325 8th Avenue South Federal Way, WA 98003 With a copy to: Mayor 33325 8th Avenue South Federal Way, WA 98003 If to Tenant, to: DM Ventures FW Center, LLC c/o MJR Development Michael J. Raskin 6725 116th Ave NE, Ste. 100 Kirkland, WA 98033 Telephone: (425) 822 -4466 -4- With a copy to: Oseran Hahn Spring Straight & Watts, P.S. ATTN: Matthew B. Straight 10900 NE 4t" Street, Suite 850 Bellevue, WA 98004 Telephone: (425) 455 -3900 16. Subleasing or Assignment. Tenant may not assign this Lease or sublet the Premises or Equipment, in whole or in part, without the prior written consent of Lessor, which may not be unreasonably withheld. If the Lessor has not responded to a request to assign or sublet with a decision within forty -five (45) days, Lessor approval shall be deemed given. City may, however, upon notice to Lessor and without Lessor approval, mortgage or grant a security interest in this Lease and the Equipment. 17. Successors and Assigns. Subject to Section 16, this Lease shall be binding upon and inure to the benefit of the parties, and their respective permitted successors and assigns. 18. Taxes. Tenant shall pay all personal property taxes (or payments in lieu of taxes) and assessments for the Premises, if any, which become due and payable during the term of this Lease attributable to the Equipment or Tenant's use of the premises. 19. Quiet Enjoyment, Title and Authority. Lessor represents to Tenant that: a. Owner has authority to execute this Lease; b. Owner has title free and clear of any liens or mortgages other tan those matters, liens and /or mortgages are of record, disclosed and /or otherwise apparent to Tenant; c. Execution and performance of this Lease will not violate any laws or agreements binding on Owner. 20. Condemnation. In the event the Premises are taken in whole or in part by any entity by eminent domain, this Lease shall terminate as of the date title to the Premises vests in the condemning authority. Tenant shall not be entitled to any portion of the award paid and the Lessor shall receive the full amount of such award. Tenant hereby expressly waives any right or claim to any portion thereof. Tenant shall have the right to claim and recover from the condemning authority, other than the Owner, such compensation as may be separately awarded or recoverable by Tenant. 21. Alteration, Damage or Destruction. If the Premises or any portion thereof is altered, destroyed or damaged so as to materially hinder effective use of the Equipment through no fault or negligence of Tenant, Tenant may elect to terminate this Lease immediately. In such event, Tenant shall promptly remove the Equipment from the Premises and shall restore the Premises to the same condition as existed prior to this Lease, normal wear and tear excepted. This Lease (and Tenant's obligation to pay rent) shall terminate upon Tenant's fulfillment of the obligations set forth in the preceding sentence and its other obligations hereunder, at which termination Tenant shall be entitled to the reimbursement of any Rent prepaid by Tenant. -5- 22. Miscellaneous a. Owner and Tenant respectively represent that their signatory is duly authorized and has full right, power and authority to execute this Lease. b. With the exception of the applicable laws, ordinances, rules and regulation, this Lease constitutes the entire agreement and understanding of the parties and supersedes all offers, negotiations and other agreements of any kind. Except as previously set forth, there are no representations or understandings of any kind not set forth herein. Any modification of or amendment to this Lease must be in writing and executed by both parties. c. This Lease shall be construed in accordance with the laws of the State of Washington. d. Section captions and headings are intended solely to facilitate the reading thereof. Such captions and headings shall not affect the meaning or interpretation of the text herein. e. Tenant shall be responsible for obtaining all necessary approvals, authorizations and agreements from any party or entity and it is acknowledged and agreed that Owner is making no representation, warranty or covenant whether any of the foregoing approvals, authorizations or agreements are required or have been obtained by Tenant from any person or entity. f. If any term of this Lease is found to be void or invalid, such invalidity shall not affect the remaining terms of this Lease, which shall continue in full force and effect. This Lease was executed as of the date first set forth above. CITY OF FEDERAL WAY By: Jim Ferrell or DATE: OWNER/LESSOR: DM VENT, RES FWD' TER, LLC: %7 ATTEST: Printed Name: f C4 Oa / �. asK /1/1 Title: I"( OL1t. tl. $-eV - z- ti Date: STATE OF WASHINGTON ) ) ss. COUNTY OF 1 n o ) ney, CMC, City Clerk APPROVED AS TO FORM: ONALti J. Ryan Call, City Attorney On this day personally appeared before me Ph 0.t/ 3 i SKI v), to me known to be the M aci cv of 'DO 1(014-btr(s 1--k/Wier -)1om that executed the 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 he /she was authorized to execute said instrument and that the seal affixed, if any, is the corporate seal of said corporation. GIVEN my hand and official seal this /ZNVo( day of /1-14114 4- , 2017. Notary's signature 1/'id'-e" � • p4012.A n Notary's printed name /g-noty .a. L . "?/ pK Notary Public in and for the State of Washington. My commission expires 49 - /3 - // -7- EXHIBIT A Legal Description POR 56 -57 -58 STATE PLAT IN SEC 16 -21 -4 LOT 1 KCSP 887025 REC #8912140335 - AKA PROPOSED KCSP 887025 SD SP DAF - POR TRS 56 -57 -58 STATE PLAT IN SEC 16 -21- 04 LESS S 640 FT THOF LESS POR FOR SSH #5 -A LESS POR FOR PLAT N B M DIV #1 EXHIBIT B Site Plan The aerial photo below depicts the location of up to 4 wall -mount radio panels, and one non - penetrating roof -mount pole on top of the Equipment Room, to be installed on the roof of the Premises. Panels 1, 2 and pole 5 are currently installed. Panels 3 and 4 will be installed at a later date. EXHIBIT C Elevation Plan rz7