STPUD Draft Verizon Option and Lease Agreement (03 08 18 Redlined Draft)_(16595170_1)
OPTION AND LAND LEASE AGREEMENT
This Agreement is made as of the date of latter signature date below, between South Tahoe Public Utility District, a local Agency of the State of California, with its principal offices
located at 1275 Meadow Crest Drive, South Lake Tahoe, California 96150, hereinafter designated LESSOR and Cellco Partnership d/b/a Verizon Wireless, with its principal offices located
at One Verizon Way, Mail Stop 4AW100, Basking Ridge, New Jersey 07920 (telephone number 866-862-4404), hereinafter designated LESSEE. The LESSOR and LESSEE are at times collectively
referred to hereinafter as the “Parties” or individually as the “Party.”
LESSOR is the owner of certain real property located in South Lake Tahoe, El Dorado County, California 96150 as legally described on Exhibit “A” attached hereto and made a part hereof
(the entirety of LESSOR’s property is referred to hereinafter as the “Property”). LESSEE desires to obtain an option to lease a portion of said Property, being described as a 35’ by
45’ parcel containing 1,575 square feet (the “Land Space”), together with the non exclusive right (the “Rights of Way”) for ingress and egress, seven (7) days a week twenty four (24)
hours a day, on foot or motor vehicle, including trucks over or along a 15 foot wide right-of-way extending from the nearest public right-of-way to the Land Space, through a locked
gate, and for the installation and maintenance of utility wires, poles, cables, conduits, and pipes over, under, or along one or more rights of way from the Land Space, said Land Space
and Rights of Way (hereinafter collectively referred to as the “Premises”) being substantially as described herein in Exhibit “B” attached hereto and made a part hereof.
NOW THEREFORE, in consideration of the sum of One Thousand Dollars ($1,000), to be paid by LESSEE to the LESSOR, the LESSOR hereby grants to LESSEE the right and option to lease said
Premises, for the term and in accordance with the covenants and conditions set forth herein. The foregoing payment shall be made by LESSEE within forty-five (45) days of execution
of this Agreement or of receipt by LESSEE from LESSOR of the Rental Documentation, as defined in and in accordance with Paragraph 4 of the Agreement below, whichever occurs later. The
providing by LESSOR of Rental Documentation to LESSEE shall be a prerequisite for the payment of the foregoing amount or any other option or rental payment, if applicable, by LESSEE,
and notwithstanding anything to the contrary herein, LESSEE shall have no obligation to make any payment(s) until Rental Documentation has been supplied to LESSEE.
The option may be exercised at any time on or prior to twelve (12) months after the date of this Agreement. If the option has not been so exercised, it shall be automatically extended
for one additional period of twelve (12) months, unless LESSEE gives written notice to the LESSOR of the intent not to extend prior to the end of the initial option period. If the
option is extended, LESSEE shall make an additional payment of One Thousand Dollars ($1,000) to LESSOR within thirty (30) days of the option being extended, provided LESSOR has supplied
to LESSEE the Rental Documentation, as defined in and in accordance with Paragraph 4 of the Agreement below. The time during which the option may be exercised may be further extended
by mutual agreement in writing. If during said option period, or during the term of the lease, if the option is exercised, the
LESSOR decides to subdivide, sell or change the status of the Property or his property contiguous thereto he shall immediately notify LESSEE in writing so that LESSEE can take steps
necessary to protect LESSEE’s interest in the Premises.
This option may be sold, assigned or transferred by the LESSEE without any approval or consent of the LESSOR to the LESSEE’s principal, affiliates, subsidiaries of its principal;
to any entity which acquires all or substantially all of LESSEE’s assets in the market defined by the Federal Communications Commission in which the Property is located by reason of
a merger, acquisition or other business reorganization or to any entity which acquires or receives an interest in the majority of communication towers of the LESSEE in the market defined
by the Federal Communications Commission in which the Property is located; however, LESSEE shall send notice of any such assignment to LESSOR. As to other parties, this Agreement may
not be sold, assigned or transferred without the written consent of the LESSOR, which such consent will not be unreasonably withheld, delayed or conditioned. No change of stock ownership,
partnership interest or control of LESSEE or transfer upon partnership or corporate dissolution of LESSEE shall constitute an assignment hereunder.
Should LESSEE fail to exercise this option or any extension thereof within the time herein limited, all rights and privileges granted hereunder shall be deemed completely surrendered,
this option terminated, and LESSOR shall retain all money paid for the option, and no additional money shall be payable by either Party to the other.
At LESSEE’s cost, LESSOR shall cooperate with LESSEE in its effort to obtain all certificates, permits and other approvals that may be required by any Federal, State or Local authorities
which will permit LESSEE use of the Premises. LESSOR shall take no action which would adversely affect the status of the Property with respect to the proposed use by LESSEE.
The LESSOR shall permit LESSEE, during the option period, free ingress and egress to the Premises to conduct such surveys, inspections, structural strength analysis, subsurface soil
tests, and other activities of a similar nature as LESSEE may deem necessary, at the sole cost of LESSEE. If LESSEE does not exercise its option, then LESSEE must restore the Property
to its pre-existing condition reasonably wear, tear and casualty damage excepted. The following sections of the Agreement are incorporated into this Option: 2, 9, 11, 12, 27, 28, 31,
32, 33, and 34-42.
LESSOR agrees to execute a Memorandum of this Option to Lease Agreement which LESSEE may record with the El Dorado County Recorder’s Office. The date set forth in the Memorandum of
Option to Lease is for recording purposes only and bears no reference to commencement of the option term, lease term or rent payments.
Notice of the exercise of the option shall be given by LESSEE to the LESSOR in writing by certified mail, return receipt requested, or by commercial courier. LESSEE shall be deemed
to have exercised the option, and the following agreement shall take effect, on the date specified in writing by LESSEE in the Notice; however, such date cannot be any later than the
end of the second 12-month option period in which the option is exercised.
LAND LEASE AGREEMENT
This Agreement, made as of the date of latter signature date below, between South Tahoe Public Utility District, a local Agency of the State of California, with its mailing address
located at 1275 Meadow Crest Drive, South Lake Tahoe, California 96150, hereinafter designated LESSOR and Cellco Partnership d/b/a Verizon Wireless, with its principal office located
at One Verizon Way, Mail Stop 4AW100, Basking Ridge, New Jersey 07920 (telephone number 866-862-4404), hereinafter designated LESSEE. The LESSOR and LESSEE are at times collectively
referred to hereinafter as the “Parties” or individually as the “Party.”
PREMISES. LESSOR owns the parcels of property located in South Lake Tahoe, El Dorado County, California 96150 as legally described on the attached Exhibit “A” and incorporated herein
(the entirety of LESSOR’s property is referred to hereinafter as the “Property”). LESSOR hereby leases to LESSEE a portion of the Property, being described as a 35’ by 45’ parcel containing
1,575 square feet (the “Land Space”), together with the non exclusive right (the “Rights of Way”) for ingress and egress, seven (7) days a week twenty four (24) hours a day, through
a locked gate pursuant to section 2, below, on foot or motor vehicle, including trucks over or along a 15 foot wide right of way extending from the nearest public right-of-way to the
Land Space, and for the installation and maintenance of utility wires, poles, cables, conduits, and pipes over, under, or along one or more rights of way from the Land Space, said
Land Space and Rights of Way (hereinafter collectively referred to as the “Premises”) being substantially as described herein in Exhibit “B” attached hereto and made a part hereof.
In the event any public utility is unable to use the Rights of Way, the LESSOR hereby agrees to grant an additional and/or alternative right-of-way either to the LESSEE or to the public
utility, provided the location of such shall be reasonably approved by LESSOR, at no cost to the LESSEE. LESSEE shall prepare and provide the documentation required to grant any such
additional and or alternative right-of-way to LESSEE subject to LESSOR’s reasonable approval.
ACCESS. LESSOR agrees to provide LESSEE access to the Premises 24 hours a day 7 days a week; however, for security purposes, LESSEE must call security at (___) ____-______ for access
through a locked gate. LESSOR will notify LESSEE in writing of any change in the foregoing telephone number.
SURVEY. LESSOR also hereby grants to LESSEE the right to survey the Property and the Premises, and said survey shall then replace Exhibit “B” in its entirety. Cost for such work shall
be borne by the LESSEE.
TERM; RENTAL.
This Agreement shall be effective as of the date of execution by both Parties, provided, however, the initial term shall be for five (5) years and shall commence on the Commencement
Date (as hereinafter defined) at which time rental payments shall commence and be due at a total annual rental of Thirty Six Thousand Dollars ($36,000) to be paid in equal monthly installments
on the first day of the month, in advance, to LESSOR or to such other person, firm or place as LESSOR may, from time to time, designate in writing at least thirty (30) days in advance
of any rental payment date by notice given in accordance with Notices Paragraph below. Upon agreement of the Parties, LESSEE may pay rent by electronic funds transfer and in such event,
LESSOR agrees to provide to LESSEE bank routing information for such purpose upon request of LESSEE. The “Commencement Date” shall be the first day of the month in which notice of
the exercise of the option, as set forth above, is effective. However, LESSOR and LESSEE acknowledge and agree that initial rental payment(s) shall not actually be sent by LESSEE until
sixty (60) days after the exercise of the option is effective.
LESSOR hereby agrees to provide to LESSEE certain documentation (the “Rental Documentation”) evidencing LESSOR’s interest in, and right to receive payments under, this Agreement, including
without limitation: (i) documentation, acceptable to LESSEE in LESSEE’s reasonable discretion, evidencing LESSOR’s good and sufficient title to and/or interest in the Property and
right to receive rental payments and other benefits hereunder; (ii) a complete and fully executed Internal Revenue Service Form W-9, or equivalent, in a form acceptable to LESSEE,
for any party to whom rental payments are to be made pursuant to this Agreement; and (iii) other documentation requested by LESSEE in LESSEE’s reasonable discretion. From time to time
during the Term of this Agreement and within thirty (30) days of a written request from LESSEE, LESSOR agrees to provide updated Rental Documentation in a form reasonably acceptable
to LESSEE, unless more than 30 days is reasonably required to produce such documents and LESSOR is diligently pursuing the requested documentation. The Rental Documentation shall be
provided to LESSEE in accordance with the provisions of and at the address given in the Notices Paragraph below. Delivery of Rental Documentation to LESSEE shall be a prerequisite
for the payment of any rent by LESSEE and notwithstanding anything to the contrary herein, LESSEE shall have no obligation to make any rental payments until Rental Documentation has
been supplied to LESSEE as provided herein.
Within fifteen (15) days of obtaining an interest in the Property or this Agreement, any assignee(s) or transferee(s) of LESSOR shall provide to LESSEE Rental Documentation in the manner
set forth in the preceding paragraph. From time to time during the Term of this Agreement and within thirty (30) days of a written request from LESSEE, any assignee(s) or transferee(s)
of LESSOR agrees to provide updated Rental Documentation in a form reasonably acceptable to
LESSEE. Delivery of Rental Documentation to LESSEE by any assignee(s) or transferee(s) of LESSOR shall be a prerequisite for the payment of any rent by LESSEE to such party and notwithstanding
anything to the contrary herein, LESSEE shall have no obligation to make any rental payments to any assignee(s) or transferee(s) of LESSOR until Rental Documentation has been supplied
to LESSEE as provided herein.
As additional rent, LESSEE shall pay LESSOR a one-time fee of Five Thousand dollars ($5,000) to compensate LESSOR for attorneys’ fees accrued to review this Agreement. The additional
rent due under this Section shall be paid within sixty (60) days after full execution of this Agreement.
LESSOR shall send LESSEE written notice if LESSEE fails to pay rent or any other payment due and payable under this Agreement. If LESSEE fails to make such payment within thirty (30)
days after receipt of such notice from LESSOR, then LESSEE shall pay LESSOR a late payment penalty equal to 10% of the amount due in addition to the amount that is already owed.
EXTENSIONS. This Agreement shall automatically be extended for four (4) additional five (5) year terms unless LESSEE terminates it at the end of the then current term by giving LESSOR
written notice of the intent to terminate at least six (6) months prior to the end of the then current term.
ANNUAL RENTAL INCREASE. Immediately upon each anniversary of the Commencement Date, the annual rental due hereunder shall increase by an amount equal to three percent (3%) of the annual
rental in effect during the immediately preceding lease year. Such annual increase shall be effective automatically without further notice or demand by LESSOR.
ADDITIONAL EXTENSIONS. If at the end of the fourth (4th) five (5) year extension term this Agreement has not been terminated by either Party by giving to the other written notice of
an intention to terminate it at least three (3) months prior to the end of such term or otherwise terminated as provided in this Agreement, this Agreement shall continue in force upon
the same covenants, terms and conditions for a further term of five (5) years and for five (5) year terms thereafter until terminated by either Party by giving to the other written
notice of its intention to so terminate at least three (3) months prior to the end of such term. Annual rental for each such additional five (5) year term shall be equal to the annual
rental payable with respect to the immediately preceding five (5) year term. The initial term and all extensions shall be collectively referred to herein as the “Term.”
The annual rent for each such five (5) year additional extension term under this section only, shall be increased by 15% over the annual rental dueat the end of during the immediately
preceding 5-year term.
TAXES. LESSEE shall have the responsibility to pay any personal property, real estate taxes, assessments, or charges owed on the Property which LESSOR demonstrates is the result of
LESSEE’s use of the Premises and/or the installation, maintenance, and operation of the LESSEE’s improvements, and any sales tax imposed on the rent (except to the extent that LESSEE
is or may become exempt from the payment of sales tax in the jurisdiction in which the Property is located), including any increase in real estate taxes at the Property which LESSOR
demonstrates arises from the LESSEE’s improvements and/or LESSEE’s use of the Premises. LESSOR and LESSEE shall each be responsible for the payment of any taxes, levies, assessments
and other charges imposed including franchise and similar taxes imposed upon the business conducted by LESSOR or LESSEE at the Property. Notwithstanding the foregoing, LESSEE shall
not have the obligation to pay any tax, assessment, or charge that LESSEE is disputing in good faith in appropriate proceedings prior to a final determination that such tax is properly
assessed provided that no lien attaches to the Property. Nothing in this Paragraph shall be construed as making LESSEE liable for any portion of LESSOR’s income taxes in connection
with any Property or otherwise. Except as set forth in this Paragraph, LESSOR shall have the responsibility to pay any personal property, real estate taxes, assessments, or charges
owed on the Property and shall do so prior to the imposition of any lien on the Property.
LESSEE shall have the right, at its sole option and at its sole cost and expense, to appeal, challenge or seek modification of any tax assessment or billing for which LESSEE is wholly
or partly responsible for payment. LESSOR shall reasonably cooperate with LESSEE at LESSEE’s expense in filing, prosecuting and perfecting any appeal or challenge to taxes as set forth
in the preceding sentence, including but not limited to, executing any consent, appeal or other similar document. In the event that as a result of any appeal or challenge by LESSEE,
there is a reduction, credit or repayment received by the LESSOR for any taxes previously paid by LESSEE, LESSOR agrees to promptly reimburse to LESSEE the amount of said reduction,
credit or repayment. In the event that LESSEE does not have the standing rights to pursue a good faith and reasonable dispute of any taxes under this paragraph, LESSOR will pursue
such dispute at LESSEE’s sole cost and expense upon written request of LESSEE.
CONSTRUCTION. Prior to initial construction or alteration of improvements onof the Premises, LESSEE shall provide LESSOR the initial plans and specifications for LESSOR’s approval
which shall not be unreasonably withheld, conditioned, or delayed. LESSEE agrees that any and all construction shall be performed by California licensed contractors only. Prior to
commencement of construction, LESSEE shall obtain all licenses, permits, consents and approvals required by any and all governmental authorities, including without limitation, the FCC,
the FAA, and other federal, state, and local agencies that have jurisdiction over LESSEE’s construction or LESSEE’s use of the Premises. All equipment installed by LESSEE, including
any improvements or modifications, must be safe and structurally sound as determined or approved by the appropriate government agency, including without limitation, the utility systems
and connections, weight, height, wind forces, structural integrity and emissions. Advance Notice: LESSEE shall give LESSOR at least five (5) business days advance notice prior to any
construction on the Premises, except in the event of any emergency as determined by LESSEE in LESSEE’s sole discretion.
Repairs: LESSEE shall repair any damage it causes to the Property at LESSEE’s sole cost, reasonable wear and tear and casualty damage excepted.
LESSEE shall notify LESSOR of all contractors that will be performing work for LESSEE on the Premises. All construction shall be performed in a good and workmanlike manner, Prior to
commencement of any construction, LESSOR’s contractors, subcontractors and consultants shall obtain and maintain workmen’s compensation coverage, commercial general liability and automobile
liability insurance. All work performed by or on behalf of LESSEE under this Agreement shall be performed so as to cause minimum interference with LESSOR or other portions of the Property
and subject to observation by LESSOR.
10. USE; GOVERNMENTAL APPROVALS. LESSEE shall use the Premises for the purpose of constructing, maintaining, repairing and operating a communications facility and uses incidental thereto.
A security fence consisting of chain link construction or similar but comparable construction mayshall be placed around the perimeter of the Premises at the discretion of LESSEE (not
including the access easement). All improvements, equipment, antennas and conduits shall be at LESSEE’s expense and their installation shall be at the discretion and option of LESSEE.
LESSEE shall have the right to replace, repair, add or otherwise modify its utilities, equipment, antennas and/or conduits or any portion thereof and the frequencies over which the
equipment operates, whether the equipment, antennas, conduits or frequencies are specified or not on any exhibit attached hereto, during the Term. It is understood and agreed that LESSEE’s
ability to use the Premises is contingent upon its obtaining after the execution date of this Agreement all of the certificates, permits and other approvals (collectively the “Governmental
Approvals”) that may be required by any Federal, State or Local authorities as well as satisfactory soil boring tests which will permit LESSEE’s use of the Premises as set forth above.
LESSOR shall cooperate with LESSEE, at LESSEE’s sole cost, in its effort to obtain such approvals and shall take no action which would adversely affect the status of the Property with
respect to the proposed use thereof by LESSEE. In the event that (i) any of such applications for such Governmental Approvals should be finally rejected; (ii) any Governmental Approval
issued to LESSEE is canceled, expires, lapses, or is otherwise withdrawn or terminated by governmental authority; (iii) LESSEE determines that such Governmental Approvals may not be
obtained in a timely manner; (iv) LESSEE determines that any soil boring tests are unsatisfactory; (v) LESSEE determines that the Premises is no longer technically compatible for its
use, or (vi) LESSEE, in its sole discretion, determines that the use the Premises is obsolete or unnecessary, LESSEE shall have the right to terminate this Agreement. Notice of LESSEE’s
exercise of its right to terminate shall be given to LESSOR in writing by certified mail, return receipt requested, and shall be effective sixty (60) days afterupon the mailing of such
notice by LESSEE, or upon such later date as designated by LESSEE. All rentals paid to said termination date shall be retained by LESSOR. Upon such termination, this Agreement shall
be of no further force or effect except to the extent of the representations, warranties and indemnities made by each Party to the other hereunder as stated under Paragraph 37. Otherwise,
the LESSEE shall have no further obligations for the payment of rent to LESSOR.
11. INDEMNIFICATION. Subject to Paragraph 12 below, eEach Party shall indemnify and hold the other Party harmless against any claim of liability, damage or loss from personal injury
or property damage, including attorney’s fees and costs, resulting from or arising out of the negligence or willful misconduct of the indemnifying Party, its employees, contractors
or agents, except to the extent such claims or damages may be due to or caused by the negligence or willful misconduct of the other Party, or its employees, contractors or agents.
The indemnified party: (i) shall promptly provide the indemnifying party with written notice of any claim, demand, lawsuit, or the like for which it seeks indemnification pursuant to
this section and provide the indemnifying party with copies of any demands, notices, summons, or legal papers received in connection with such claim, demand, lawsuit, or the like; (ii)
shall not settle any such claim, demand, lawsuit, or the like without the prior written consent of the indemnifying party which shall not be unreasonably withheld; and (iii) shall fully
cooperate with the indemnifying party, at the indemnifying party’s expense, in the defense of the claim, demand, lawsuit, or the like. A delay in notice shall not relieve the indemnifying
party of its indemnity obligation, except (1) to the extent indemnifying party can show it was prejudiced by the delay; and (2) the indemnifying party shall not be liable for any settlement
or litigation expenses incurred before the time when notice is given. Any legal counsel retained by the indemnifying party shall be subject to the indemnified party’s reasonable approval.
12 INSURANCE. LESSEE will carry, at its own cost and expense, the following insurance:
(a) Workers' compensation insurance, for all of their employees employed directly by them or through sub-consultants in accordance with statutory requirements. LESSEE shall provide
employer’s liability insurance with limits of not less than One Million Dollars ($1,000,000) each accident, One Million Dollars ($1,000,000) each accident policy limit, One Million
Dollars ($1,000,000) disease each employee and One Million Dollars ($1,000,000) disease policy limit. The Workers' Compensation insurance policy shall contain, or be endorsed to contain,
a provision that the insurer waives any and all transfer rights of recovery (subrogation) it may have against the additional insureds.
(b) Commercial general liability (CGL) insurance with respect to its activities on the Property, such insurance to afford protection of up to Two Million Dollars ($2,000,000) per occurrence
and Two Million Dollars ($2,000,000) general aggregate, based on Insurance Services Office (ISO) Form CG 00 01 or a substitute form providing substantially equivalent coverage. LESSEE’s
CGL insurance shall contain a provision including LESSOR as an additional insured.
(c) Automobile liability insurance for bodily injury and property damage which coverage shall be at least as broad as ISO Business Auto Coverage (Form CA 0001), covering Symbol 1 (any
auto), and with a limit in an amount of not less than two Million Dollars ($2,000,000) each accident and shall cover owned, non-owned and hired automobiles.
(d) The commercial general and automobile liability policies shall contain, or be endorsed to contain the following provisions: (1) LESSOR, its officials, officers, and employees
shall be given additional insured as respects: liability arising out of activities performed by or on behalf of LESSEE; and premises owned, occupied or used by LESSEE. The coverage shall
contain no special limitations on the scope of protection afforded to LESSOR, its officials, officers, and employees; (2) LESSEE’s insurance shall be primary insurance as respects
LESSOR, its officials, officers, and employees and any insurance, self-insurance or other coverage maintained by LESSOR its officials, officers, and employees shall not contribute to
it; (3) any failure to comply with the reporting or other provisions of the policies including breaches and warranties shall not affect coverage provided to LESSOR, its officials, officers,
and employees; and (4) LESSEE’s insurance shall apply separately to each insured against whom claim is made or suit is brought, Upon receipt of notice from its insurer(s), each Party
will use commercially reasonable efforts to provide the other Party with 30 days prior written notice of cancellation of any coverage required herein
The Parties agree that at their own cost and expense, each will maintain commercial general liability insurance with limits not less than $2,000,000 for injury to or death of one or
more persons in any one occurrence and $2,000,000 for damage or destruction to property in any one occurrence. The Parties agree to include the other Party as an additional insured.
LESSEE shall also obtain and maintain:
Autombile Liability - $2,000,000 combined single limit each accident for bodily injury and property damage
Worker’s Compensation – statutory
Pollution Liability - $3,000,000 per occurrence
Waiver of subrogation under workers compensation
Upon receipt of notice from its insurer(s), each Party will use commercially reasonable efforts to provide the other Party with 30 days prior written notice of cancellation of any coverage
required herein.
The Parties hereby waive and release any and all rights of action for negligence against the other which may hereafter arise on account of damage to the Premises or the Property, resulting
from any fire, or other casualty which is insurable under “Causes of Loss – Special Form” property damage insurance or for the kind covered by standard fire insurance policies with
extended coverage, regardless of whether or not, or in what amounts, such insurance is now or hereafter carried by the Parties, even if any such fire or other casualty shall have been
caused by the fault or negligence of the other Party. These waivers and releases shall apply between the Parties and they shall also apply to any claims under or through either Party
as a result of any asserted right of subrogation. All such policies of insurance obtained by either Party concerning the Premises or the Property shall waive the insurer’s right of
subrogation against the other Party.
13 LIMITATION OF LIABILITY. Except for indemnification pursuant to paragraphs 11 and 3331, neither Party shall be liable to the other, or any of their respective agents, representatives,
employees for any lost revenue, lost profits, loss of technology, rights or
services, incidental, punitive, indirect, special or consequential damages, loss of data, or interruption or loss of use of service, even if advised of the possibility of such damages,
whether under theory of contract, tort (including negligence), strict liability or otherwise.
14. ANNUAL TERMINATION. Notwithstanding anything to the contrary contained herein, provided LESSEE is not in default hereunder beyond applicable notice and cure periods, LESSEE shall
have the right to terminate this Agreement upon the annual anniversary of the Commencement Date provided that three (3) months prior notice is given to LESSOR.
15. INTERFERENCE. LESSEE agrees to install equipment of the type and frequency which will not cause harmful interference which is measurable in accordance with then existing industry
standards to any equipment of LESSOR or other lessees of the Property which existed on the Property prior to the date this Agreement is executed by the Parties. In the event any after-installed
LESSEE’s equipment causes such interference, and after LESSOR has notified LESSEE in writing of such interference, LESSEE will take all commercially reasonable steps necessary to correct
and eliminate the interference, including but not limited to, at LESSEE’s option, powering down such equipment and later powering up such equipment for intermittent testing. In no
event will LESSOR be entitled to terminate this Agreement or relocate the equipment as long as LESSEE is making a good faith effort to remedy the interference issue. LESSOR agrees
that LESSOR and/or any other tenants of the Property who currently have or in the future take possession of the Property will be permitted to install only such equipment that is of
the type and frequency which will not cause harmful interference which is measurable in accordance with then existing industry standards to the then existing equipment of LESSEE. The
Parties acknowledge that there will not be an adequate remedy at law for noncompliance with the provisions of this Paragraph and therefore, either Party shall have the right to equitable
remedies, such as, without limitation, injunctive relief and specific performance.
16. REMOVAL AT END OF TERM. LESSEE shall, prior to the expiration of the Term, or within ninety (90) days after any earlier termination of the Agreement, remove its building(s), antenna
structure(s) (except footings more than 2’ below grade), equipment, conduits, fixtures and all personal property and restore the Premises to its original condition, reasonable wear
and tear and casualty damage excepted. LESSOR agrees and acknowledges that all of the equipment, conduits, fixtures and personal property of LESSEE shall remain the personal property
of LESSEE and LESSEE shall have the right to remove the same at any time during the Term, whether or not said items are considered fixtures and attachments to real property under applicable
Laws (as defined in Paragraph 3735 below). If such time for removal causes LESSEE to remain on the Premises after termination of this Agreement, LESSEE shall pay rent at the then existing
monthly rate or on the existing monthly pro-rata basis if based upon a longer payment term, until such time as the removal of the building, antenna structure, fixtures and all personal
property are completed.
17. HOLDOVER. LESSEE has no right to retain possession of the Premises or any part thereof beyond the expiration of that removal period set forth above, unless the Parties are negotiating
a new lease or lease extension in good faith as evidenced in writing. In the event that
the Parties are not in the process of negotiating a new lease or lease extension in good faith, LESSEE holds over in violation of Paragraph 16 and this Paragraph 17, then the rent shall
be increased by 20% over the rent applicable during the month immediately preceding such expiration or earlier termination.
18. RIGHT OF FIRST REFUSAL. If LESSOR elects, during the Term (i) to sell or otherwise transfer all or any portion of the Property, whether separately or as part of a larger parcel
of which the Property is a part, or (ii) grant to a third party by easement or other legal instrument an interest in and to that portion of the Property occupied by LESSEE, or a larger
portion thereof, for the purpose of operating and maintaining communications facilities or the management thereof, with or without an assignment of this Agreement to such third party,
LESSEE shall have the right of first refusal to meet any bona fide offer of sale or transfer on the same terms and conditions of such offer. If LESSEE fails to meet such bona fide offer
within thirty (30) days after written notice thereof from LESSOR, LESSOR may sell or grant the easement or interest in the Property or portion thereof to such third person in accordance
with the terms and conditions of such third party offer For purposes of this Paragraph, any transfer, bequest or devise of LESSOR’s interest in the Property as a result of the death
of LESSOR, whether by will or intestate succession, or any conveyance to LESSOR’s family members by direct conveyance or by conveyance to a trust for the benefit of family members shall
not be considered a sale of the Property for which LESSEE has any right of first refusal.
19. RIGHTS UPON SALE. Should LESSOR, at any time during the Term decide (i) to sell or transfer all or any part of the Property to a purchaser other than LESSEE, or (ii) to grant to
a third party by easement or other legal instrument an interest in and to that portion of the Property occupied by LESSEE, or a larger portion thereof, for the purpose of operating
and maintaining communications facilities or the management thereof, such sale or grant of an easement or interest therein shall be under and subject to this Agreement and any such
purchaser or transferee shall recognize LESSEE’s rights hereunder under the terms of this Agreement. To the extent that LESSOR grants to a third party by easement or other legal instrument
an interest in and to that portion of the Property occupied by LESSEE for the purpose of operating and maintaining communications facilities or the management thereof and in conjunction
therewith, assigns this Agreement to said third party, LESSOR shall be released from its obligations to LESSEE under this Agreement, and LESSEE shall have the right to look to Lessor
and the third party for the full performance of this Agreement.
20. QUIET ENJOYMENT. LESSOR covenants that LESSEE, on paying the rent and performing the covenants herein, shall peaceably and quietly have, hold and enjoy the Premises.
21. TITLE. LESSOR represents and warrants to LESSEE as of the execution date of this Agreement, and covenants during the Term that LESSOR is seized of good and sufficient title and
interest to the Property and has full authority to enter into and execute this Agreement. LESSOR further covenants during the Term that there are no liens, judgments or impediments
of title on the Property, or affecting LESSOR’s title to the same and that there are no covenants,
easements or restrictions which prevent or adversely affect the use or occupancy of the Premises by LESSEE as set forth above.
22. ACCEPTANCE OF THE PREMISES. LESSOR has made no representation or warranty concerning the fitness for use or suitability for purpose of the Premises or the Property, all of which
are expressly disclaimed, and LESSEE accepts the Premises “AS IS.” Without limiting the foregoing, LESSEE shall bear the risk of the suitability of the Premises for LESSEE’s intended
use from both an economic and technical engineering basis and with respect to LESSEE’s ability to obtain and maintain any and all governmental licenses, permits, approvals or other
relief required or deemed necessary or appropriate by LESSEE for its use of the Premises.
23. MAINTENANCE/UTILITIES. LESSEE will keep and maintain the Premises in good condition, reasonable wear and tear and damage from the elements excepted. LESSOR will maintain and repair
the Property and access thereto and all areas of the Premises where LESSEE does not have exclusive control, in good and tenantable condition, subject to reasonable wear and tear and
damage from the elements. LESSEE will be responsible for maintenance of landscaping on the Property installed by LESSEE as a condition of this Agreement or any required permit. LESSEE
shall not allow any trash to accumulate in or about the Premises or the Property and LESSEE shall remove promptly all such trash.
LESSEE will be responsible for paying on a monthly or quarterly basis all utilities charges for electricity, telephone service or any other utility used or consumed by LESSEE on the
Premises. LESSEE shall secure its own metered electrical supply, at its own cost and expense. LESSOR acknowledges that LESSEE provides a communication service which requires electrical
power to operate and must operate twenty-four (24) hours per day, seven (7) days per week. If the interruption is for an extended period of time, in LESSEE’s reasonable determination,
LESSOR agrees to allow LESSEE the right to bring in a temporary source of power for the duration of the interruption.
24. INTEGRATION. It is agreed and understood that this Agreement contains all agreements, promises and understandings between LESSOR and LESSEE and that no verbal or oral agreements,
promises or understandings shall be binding upon either LESSOR or LESSEE in any dispute, controversy or proceeding at law, and any addition, variation or modification to this Agreement
shall be void and ineffective unless made in writing signed by the Parties. In the event any provision of the Agreement is found to be invalid or unenforceable, such finding shall
not affect the validity and enforceability of the remaining provisions of this Agreement. The failure of either Party to insist upon strict performance of any of the terms or conditions
of this Agreement or to exercise any of its rights under the Agreement shall not waive such rights and such Party shall have the right to enforce such rights at any time and take such
action as may be lawful and authorized under this Agreement, in law or in equity.
25. GOVERNING LAW. This Agreement and the performance thereof shall be governed, interpreted, construed and regulated by the Laws of the State in which the Property is located.
26. ASSIGNMENT. This Agreement may be sold, assigned or transferred by the LESSEE without any approval or consent of the LESSOR to the LESSEE’s principal, affiliates, subsidiaries of
its principal or to any entity which acquires all or substantially all of LESSEE’s assets in the market defined by the Federal Communications Commission in which the Property is located
by reason of a merger, acquisition or other business reorganization; however, LESSEE shall send notice of any such assignment to LESSOR. As to other parties, this Agreement may not
be sold, assigned or transferred without the written consent of the LESSOR, which such consent will not be unreasonably withheld, delayed or conditioned. No change of stock ownership,
partnership interest or control of LESSEE or transfer upon partnership or corporate dissolution of LESSEE shall constitute an assignment hereunder.
LESSEE may sublet the Premises within its sole discretion, upon notice to LESSOR, subject to the following: (i) LESSOR shall have the exclusive right to lease ground space to other
carriers; therefore, any prospective sublessee must obtain ground space from LESSOR pursuant to a separate agreement and such ground space rent shall be paid by the prospective sublessee
directly to the LESSOR, and (ii) the prospective sublessee must obtain tower space from LESSEE and such tower space rent shall be paid by the prospective sublessee directly to the LESSEE.
Any sublease that is entered into by LESSEE shall be subject to the provisions of this Agreement and shall be binding upon the successors, assigns, heirs and legal representatives of
the respective Parties hereto. If LESSOR and a prospective sublessee cannot agree upon sublease terms for a ground space, LESSEE may not sublease tower space to such prospective sublessee.
27. NOTICES. All notices hereunder must be in writing and shall be deemed validly given if sent by certified mail, return receipt requested or by commercial courier, provided the courier’s
regular business is delivery service and provided further that it guarantees delivery to the addressee by the end of the next business day following the courier’s receipt from the sender,
addressed as follows (or any other address that the Party to be notified may have designated to the sender by like notice):
LESSOR: General Manager
South Tahoe Public Utility District
1275 Meadow Crest Drive
South lake Tahoe, CA 96150
With a copy to: Gary M. Kvistad
Brownstein Hyatt Farber Schreck, LLP
1020 State Street
Santa Barbara, CA 93101
LESSEE: Cellco Partnership
d/b/a Verizon Wireless
180 Washington Valley Road
Bedminster, New Jersey 07921
Attention: Network Real Estate
Notice shall be effective upon actual receipt or refusal as shown on the receipt obtained pursuant to the foregoing.
28. SUCCESSORS. This Agreement shall extend to and bind the heirs, personal representative, successors and assigns of the Parties hereto.
29. SUBORDINATION AND NON-DISTURBANCE. LESSOR shall obtain not later than fifteen (15) days following the execution of this Agreement, a Non Disturbance Agreement, as defined below,
from its existing mortgagee(s), ground lessors and master lessors, if any, of the Property. At LESSOR’s option, this Agreement shall be subordinate to any future master lease, ground
lease, mortgage, deed of trust or other security interest (a “Mortgage”) by LESSOR which from time to time may encumber all or part of the Property or right-of-way; provided, however,
as a condition precedent to LESSEE being required to subordinate its interest in this Agreement to any future Mortgage covering the Property, LESSOR shall obtain for LESSEE’s benefit
a non disturbance and attornment agreement for LESSEE’s benefit in the form reasonably satisfactory to LESSEE, and containing the terms described below (the “Non Disturbance Agreement”),
and shall recognize LESSEE’s right to remain in occupancy of and have access to the Premises as long as LESSEE is not in default of this Agreement beyond applicable notice and cure
periods. The Non Disturbance Agreement shall include the encumbering party’s (“Lender’s”) agreement that, if Lender or its successor in interest or any purchaser of Lender’s or its
successor’s interest (a “Purchaser”) acquires an ownership interest in the Property, Lender or such successor in interest or Purchaser will (1) honor all of the terms of the Agreement,
(2) fulfill LESSOR’s obligations under the Agreement, and (3) promptly cure all of the then existing LESSOR defaults under the Agreement. Such Non Disturbance Agreement must be binding
on all of Lender’s participants in the subject loan (if any) and on all successors and assigns of Lender and/or its participants and on all Purchasers. In return for such Non Disturbance
Agreement, LESSEE will execute an agreement for Lender’s benefit in which LESSEE (1) confirms that the Agreement is subordinate to the Mortgage or other real property interest in favor
of Lender, (2) agrees to attorn to Lender if Lender becomes the owner of the Property and (3) agrees to accept a cure by Lender of any of LESSOR’s defaults, provided such cure is completed
within the deadline applicable to LESSOR. In the event LESSOR defaults in the payment and/or other performance of any mortgage or other real property interest encumbering the Property,
LESSEE, may, at its sole option and without obligation, cure or correct LESSOR’s default and upon doing so, LESSEE shall be subrogated to any and all rights, titles, liens and equities
of the holders of such mortgage or other real property interest and
LESSEE shall be entitled to deduct and setoff against all rents that may otherwise become due under this Agreement the sums paid by LESSEE to cure or correct such defaults.
30. RECORDING. LESSOR agrees to execute a Memorandum of this Agreement which LESSEE may record with the appropriate recording officer. The date set forth in the Memorandum of Lease
is for recording purposes only and bears no reference to commencement of either the Term or rent payments.
31. DEFAULT. It is a “Default” if (i) either Party fails to comply with this Agreement and does not remedy the failure within thirty (30) days after written notice by the other Party
or, if the failure cannot reasonably be remedied in such time, if the failing Party does not commence a remedy within the allotted thirty (30) days and diligently pursue the cure to
completion within ninety (90) days after the initial written notice, or (ii) either partyLESSOR fails to comply with this Agreement and the failure interferes with the non-defaulting
party’sLESSEE’s use of the Premises or the Property, as applicable, and the defaulting partyLESSOR does not remedy the failure within 30 days after written notice from the non-defaulting
partyLESSEE or, if the failure cannot reasonably be remedied in such time, if the defaulting partyLESSOR does not commence a remedy within the allotted 30 days and diligently pursue
the cure to completion.
32. REMEDIES. Upon a default, the non-defaulting Party may at its option (but without obligation to do so), perform the defaulting Party’s duty or obligation on the defaulting Party’s
behalf, including but not limited to the obtaining of reasonably required insurance policies. The costs and expenses of any such performance by the non-defaulting Party shall be due
and payable by the defaulting Party upon invoice therefor. In the event of a default by either Party with respect to a material provision of this Agreement, without limiting the non-defaulting
Party in the exercise of any right or remedy which the non-defaulting Party may have by reason of such default, the non-defaulting Party may terminate the Agreement and/or pursue any
remedy now or hereafter available to the non-defaulting Party under the Laws or judicial decisions of the state in which the Premises are located; provided, however, the Parties shall
use reasonable efforts to mitigate its damages in connection with a default by the other Party. If the non-defaulting Party so performs any of the defaulting Party’s obligations hereunder,
the full amount of the reasonable and actual cost and expense incurred shall immediately be due and payable, and the defaulting Party shall pay the non-defaulting Party upon demand
the full undisputed amount thereof with interest thereon from the date of payment at the greater of (i) ten percent (10%) per annum, or (ii) the highest rate permitted by applicable
Laws. Notwithstanding the foregoing, if LESSOR is the defaulting Party and LESSOR does not pay LESSEE the full undisputed amount within thirty (30) days of its receipt of an invoice
setting forth the amount due, LESSEE may offset the full undisputed amount, including all accrued interest, due against all fees due and owing to LESSOR until it is fully reimbursed
to LESSEE.
33. ENVIRONMENTAL.
LESSEELESSOR will be responsible for all obligations of compliance with any and all environmental and industrial hygiene laws, including any regulations, guidelines, standards, or policies
of any governmental authorities regulating or imposing standards of liability or standards of conduct with regard to any environmental or industrial hygiene conditions or concerns as
may now or at any time hereafter be in effect, that are or were in any way related to activity now conducted in, on, or in any way related to the PremisesProperty, unless such conditions
or concerns are caused by the specific activities of LESSORLESSEE in the Premises. If LESSEE breaches any of the foregoing obligations, LESSEE shall promptly take all steps necessary
to completely clean-up and remove all contamination.
LESSEELESSOR shall hold LESSORLESSEE harmless and indemnify LESSORLESSEE from and assume all duties, responsibility and liability at LESSEE’sLESSOR’s sole cost and expense, for all duties,
responsibilities, and liability (for payment of penalties, sanctions, forfeitures, losses, costs, or damages) and for responding to any action, notice, claim, order, summons, citation,
directive, litigation, investigation or proceeding which is in any way related to: a) failure to comply with any environmental or industrial hygiene law, including without limitation
any regulations, guidelines, standards, or policies of any governmental authorities regulating or imposing standards of liability or standards of conduct with regard to any environmental
or industrial hygiene concerns or conditions as may now or at any time hereafter be in effect, unless such non-compliance results from conditions caused by LESSORLESSEE; and b) any
environmental or industrial hygiene conditions arising out of or in any way related to the condition of the Property or activities conducted thereon, unless such environmental conditions
are caused by LESSORLESSEE.
34. CASUALTY. In the event of damage by fire or other casualty to the Premises that cannot reasonably be expected to be repaired within forty-five (45) days following same or, if the
Property is damaged by fire or other casualty so that such damage may reasonably be expected to disrupt LESSEE’s operations at the Premises for more than forty-five (45) days, then
LESSEE may, at any time following such fire or other casualty, provided LESSOR has not completed the restoration required to permit LESSEE to resume its operation at the Premises, terminate
this Agreement upon fifteen (15) days prior written notice to LESSOR. Any such notice of termination shall cause this Agreement to expire with the same force and effect as though the
date set forth in such notice were the date originally set as the expiration date of this Agreement and the Parties shall make an appropriate adjustment, as of such termination date,
with respect to payments due to the other under this Agreement. Notwithstanding the foregoing, the rent shall abate during the period of repair following such fire or other casualty
in proportion to the degree to which LESSEE’s use of the Premises is impaired.
35. CONDEMNATION. In the event of any condemnation of all or any portion of the Property, this Agreement shall terminate as to the part so taken as of the date the condemning authority
takes title or possession, whichever occurs first. If as a result of a partial condemnation of the Premises or Property, LESSEE, in LESSEE’s sole discretion, is unable to use the Premises
for the purposes intended hereunder, or if such condemnation may reasonably be expected to disrupt LESSEE’s operations at the Premises for more than forty-five (45) days, LESSEE may,
at
LESSEE’s option, to be exercised in writing within fifteen (15) days after LESSOR shall have given LESSEE written notice of such taking (or in the absence of such notice, within fifteen
(15) days after the condemning authority shall have taken possession) terminate this Agreement as of the date the condemning authority takes such possession. LESSEE may on its own
behalf make a claim in any condemnation proceeding involving the Premises for losses related to the equipment, conduits, fixtures, its relocation costs and its damages and losses (but
not for the loss of its leasehold interest). Any such notice of termination shall cause this Agreement to expire with the same force and effect as though the date set forth in such
notice were the date originally set as the expiration date of this Agreement and the Parties shall make an appropriate adjustment as of such termination date with respect to payments
due to the other under this Agreement. If LESSEE does not terminate this Agreement in accordance with the foregoing, this Agreement shall remain in full force and effect as to the
portion of the Premises remaining, except that the rent shall be reduced in the same proportion as the rentable area of the Premises taken bears to the total rentable area of the Premises.
In the event that this Agreement is not terminated by reason of such condemnation, LESSOR shall promptly repair any damage to the Premises caused by such condemning authority.
36. SUBMISSION OF AGREEMENT/PARTIAL INVALIDITY/AUTHORITY. The submission of this Agreement for examination does not constitute an offer to lease the Premises and this Agreement becomes
effective only upon the full execution of this Agreement by the Parties. If any provision herein is invalid, it shall be considered deleted from this Agreement and shall not invalidate
the remaining provisions of this Agreement. Each of the Parties hereto warrants to the other that the person or persons executing this Agreement on behalf of such Party has the full
right, power and authority to enter into and execute this Agreement on such Party’s behalf and that no consent from any other person or entity is necessary as a condition precedent
to the legal effect of this Agreement.
37. APPLICABLE LAWS. During the Term, LESSOR shall maintain the Property in compliance with all applicable laws, rules, regulations, ordinances, directives, covenants, easements, zoning
and land use regulations, and restrictions of record, permits, building codes, and the requirements of any applicable fire insurance underwriter or rating bureau, now in effect or which
may hereafter come into effect (including, without limitation, the Americans with Disabilities Act and laws regulating hazardous substances) (collectively “Laws”). LESSEE shall, in
respect to the condition of the Premises and at LESSEE’s sole cost and expense, comply with (a) all Laws relating solely to LESSEE’s specific and unique nature of use of the Premises
(other than general office use); and (b) all building codes requiring modifications to the Premises due to the improvements being made by LESSEE in the Premises.
38. RELOCATION. LESSOR, on one (1) occasion, may require LESSEE to relocate LESSEE’s communication equipment and other improvements on the Premises to another location on the Property
("Alternate Site"), if:
The Alternate Site is similar to the Premises in size and is compatible for LESSEE's use, in LESSEE's sole and reasonable discretion;
LESSOR pays all costs incurred by LESSEE for relocating LESSEE's communications facility to the Alternate Site, including all costs incurred to obtain all of the certificates, permits
and other approvals that may be required by any Federal, State or Local authorities which will permit LESSEE’s use of the Alternate Site;
LESSOR gives LESSEE at least twelve (12) months written notice before requiring LESSEE to relocate; and
LESSEE's service is not interrupted during the relocation. LESSEE shall be allowed to place a temporary communications site and antenna structure on the Property (in a mutually agreeable
location) during the relocation process to prevent any loss of service to LESSEE.
The Parties agree to enter into an amendment to this Agreement to document the Alternate Site location.
39. SURVIVAL. Sections 11, 12, 13, 16, 17, 32, 33, and 42The provisions of the Agreement relating to indemnification from one Party to the other Party shall survive any termination
or expiration of this Agreement. Additionally, any provisions of this Agreement which require performance subsequent to the termination or expiration of this Agreement shall also survive
such termination or expiration.
40. CAPTIONS. The captions contained in this Agreement are inserted for convenience only and are not intended to be part of the Agreement. They shall not affect or be utilized in the
construction or interpretation of the Agreement.
41, COUNTERPARTS. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same
instrument.
42. ATTORNEY’S FEES. If any legal proceeding (lawsuit, arbitration, etc.), including an action for declaratory relief, is brought to enforce or interpret the provisions of this Agreement,
the prevailing party shall be entitled to recover actual attorneys’ fees and costs, which may be determined by the court in the same action or in a separate action brought for that
purpose. The attorneys’ fees award shall be made as to fully reimburse for all attorneys’ fees, paralegal fees, costs and expenses actually incurred in good faith, regardless of the
size of the judgment, it being the intention of the parties to fully compensate for all attorneys’ fees, paralegal fees, costs and expenses paid or incurred in good faith.
[Signature page to follow]
IN WITNESS WHEREOF, the Parties hereto have set their hands and affixed their respective seals as of the date of latter signature date below.
LESSOR:
South Tahoe Public Utility District,
a local Agency of the State of California
By:
Name:______________________________
Title: _______________________________
Date: _______________________________
LESSEE:
Cellco Partnership
d/b/a Verizon Wireless
By:
Name:______________________________
Title: _______________________________
Date: _______________________________
Exhibit “A”
(Legal Description of the Property)
Exhibit “B”
(The Premises)
ATTACHED