STPUD 2 Final Draft Verizon Redlined Option and Lease Agreement (06 12 18)_(16906981_1) SDC Revisons 20160626Lessee Site Name: Kokanee Lessee Site No.: 289859
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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 _____________________, 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, 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 itshis property contiguous
Comment [BHFS1]: What terms in the Land Lease apply during the Option. These should be identified in the Option, such as insurance, indemnification, etc..
Lessee Site Name: Kokanee Lessee Site No.: 289859
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thereto ithe 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. LESSEE shall provide LESSOR with notice of any such assignment. 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. 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.
Lessee Site Name: Kokanee Lessee Site No.: 289859
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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 _____________________, 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.” 1. PREMISES; CONDITION OF PROPERTY. 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, 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 alternativeadditional 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 alternativeadditional right-of-way to LESSEE. LESSEE represents that it has inspected and examined the Property and the Premises as of February 19, 2018 and shall accept the Property and Premises in "as is" condition as such condition existed on that date. LESSOR shall deliver the Premises to LESSEE on the Commencement Date, as hereinafter defined, in the same condition as on the day of inspection clean and free of debris. LESSOR represents and warrants to LESSEE that as of the Effective Date, the Premises are in compliance with all Laws and with all EH&S Laws; however, LESSEE accepts the Premises without express or implied warranty or representation from LESSOR, including, without limitation, the suitability or fitness of the Premises for any particular use or purpose or the merchantability thereof. LESSEE shall keep and maintain the Premises in good condition, reasonable wear and tear and casualty damage excepted. 2. 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
Comment [BHFS2]: The District is agreeable to allowing one right-of-way for utilities but not multiple locations.
Comment [SC3]: This is a requirement of STPUD and we will not accept the conract with the expectation that “additional” right-of-way will be granted without the original one being removed.
Comment [BHFS4]: The District has not done any evaluation of the Premises and cannot make this representation and warranty.
Comment [SC5]: It is a requirement of STPUD that this not be in the contract, and we will not agree to it unless it is removed. We have no reason to believe that the property is not in compliance, but will not “represent and warrant” that is the case without doing a thorough and complete analysis.
Lessee Site Name: Kokanee Lessee Site No.: 289859
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access through a locked gate. LESSOR will notify LESSEE in writing of any change in the foregoing telephone number. 3. 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. 4. TERM; RENTAL.
a) 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.
b) 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.
Lessee Site Name: Kokanee Lessee Site No.: 289859
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c) 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.
d) As additional rent, LESSEE shall pay LESSOR a one-time fee of $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.
e) 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 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.
5. 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.
6. 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. 7. 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, 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 each 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 additional extension term under this section only, shall be increased by 15% over the annual rental due during the immediately preceding 5-year term.
Comment [BHFS6]: This setence is incorrect, see last sentesen of this section for correct rental amount.
Comment [SC7]: STPUD can not accept the contract with this language in it. This directly conflicts with what has been agreed to previously and is stated two sentences later.
Lessee Site Name: Kokanee Lessee Site No.: 289859
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8. 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. 9. CONSTRUCTION. Prior to any and all construction of the Premises, LESSEE shall notify LESSOR of all contractors that will perform work on the Property and 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. Prior to commencement of any and all construction, LESSEE’s contractors, subcontractors and consultants shall obtain and maintain workers compensation, commercial general liability and authomobility liability insurance coverages in amounts reasonably satisfactory to LESSOR. LESSEE shall provide LESSOR with evidence of such insurance coverages which shall name LESSOR as an additional insured. All equipment installed by LESSEE, including any improvements or modifications, must be safe and structurally sound as determined or approved by
Comment [BHFS8]: This language is consistent with other language in this section.
Comment [BHFS9]: All contractors must be licensed in California per California laws.
Comment [BHFS10]: The District must be assured that all contractors and consultants are insured before accessing the Premises or the Property.
Lessee Site Name: Kokanee Lessee Site No.: 289859
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the appropriate government agency, including without limitation, the utility systems and connections, weight, height, wind forces, structural integrity and emissions. a. Advance Notice: LESSEE shall give LESSOR at least 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. b. Repairs: LESSEE shall repair any damage it causes to the Property at LESSEE’s sole cost, reasonable wear and tear and casualty damage excepted. c. Landscaping: LESSEE shall maintain any landscaping that is installed by LESSEE as a condition to any permit. 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 may 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 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 of the Premises is obsolete or unnecessary, then 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 upon60 days after 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, each Party shall indemnify and hold the other harmless the other Party against any claim of liability or loss from personal
Comment [BHFS11]: See comment later regarding survival of terms. These terms that survive should all be identified in one loaction in the agreement.
Lessee Site Name: Kokanee Lessee Site No.: 289859
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injury or property damage resulting from or arising out of the negligenceacts or willful misconductomissions 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.
12. INSURANCE. The LESSEEParties agrees that at itstheir own cost and expense, iteach 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 the following additional insurance coverages: a. Autombile Liability - $2,000,000 combined single limit each accident for bodily injury and property damage b. Worker’s Compensation – statutory c. Pollution Liability - $3,000,000 per occurrence Waiver of subrogation under workers compensation 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 insure status. 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 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 LESSEE, it’s officials, officers, and employees; (4) LESSEE’s insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer’s liability; and, (5) the insurer waives any and all transfer rights of recovery (subrogation) it may have against
the additional insureds. 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.
Comment [SC12]: The District has consulted our insurer and will not add the Lessee to the District’s insurance. The District requires that we be additional insured on the Lessee’s insurance.
Formatted: Indent: Left: 1.25", No bullets ornumbering, No widow/orphan control
Formatted: No bullets or numbering, Nowidow/orphan control
Comment [BHFS13]: These are the District's standard insurance requirements which should be readily available at no additonal cost to LESSEE.
Comment [BHFS14]: The District is waiting to hear from its insurer whether this language is acceptable.
Comment [SC15]: The District will not accept this
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13. LIMITATION OF LIABILITY. Except for indemnification pursuant to paragraphs 11 and 31, 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 35 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
Lessee Site Name: Kokanee Lessee Site No.: 289859
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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. 18.
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 not 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
Comment [BHFS16]: This language does not apply as the District is not a natual person.
Formatted: Numbered + Level: 1 +Numbering Style: 1, 2, 3, … + Start at: 1 +Alignment: Left + Aligned at: 0.5" + Tab after: 0.85" + Indent at: 0", Widow/Orphan control
Lessee Site Name: Kokanee Lessee Site No.: 289859
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restrictions which prevent or adversely affect the use or occupancy of the Premises by LESSEE as set forth above. 21.22. UTILITIES. Lessee shall be responsible for obtaining and maintaining all utilities needed by LESSEE for it use of the Premises. Lessor shall no obligation to provide LESSEE with any utilities. 22.23. 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. 23.24. 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.
24.25. 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 sublessee must obtain ground space from LESSOR pursuant to a separate agreement and such ground space rent shall be paid by the sublessee directly to the LESSOR, and (ii) the sublessee must obtain tower space from LESSEE and such tower space rent shall be paid by sublessee directly to the LESSEE. LESSEE may not sublease any tower space if the prospective sublessee and LESSOR do not agree on terms for the ground space. 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. 25.26. 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
Comment [BHFS17]: The District wants to make clear that it has no responsibility for Lessee’s utilities.
Lessee Site Name: Kokanee Lessee Site No.: 289859
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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.
26.27. SUCCESSORS. This Agreement shall extend to and bind the heirs, personal representative, successors and assigns of the Parties hereto. 27.28. 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
Lessee Site Name: Kokanee Lessee Site No.: 289859
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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. 28.29. 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. LESSEE agrees to provide LESSOR a copy of the recorded Memorandum of this Agreement. 29.30. DEFAULT. It is a “Default” if (i) either Party fails to comply with this Agreement and does not remedy the failure within 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 30 days and diligently pursue the cure to completion within 90 days after the initial written notice, or (ii) LESSOReither Party fails to comply with this Agreement and the failure interferes with LESSEEthe other Party’s use of the Property or Premises and LESSORthe failing Party does not remedy the failure within 30 days after written notice from LESSEEthe other Party or, if the failure cannot reasonably be remedied in such time, if
LESSOR does not commence a remedy within the allotted 30 days and diligently pursue the cure to completion. , or (iii) LESSEE becomes bankrupt, insolvent or placed in receivership, or if any proceedings are instituted by LESSEE or against LESSEE and are not dismissed within 120 days.
30.31. 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
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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. 31.32. ENVIRONMENTAL. LESSEE shall conduct its business in compliance with all applicable laws governing the protection of the environment or employee health and safety (“EH&S Laws”). Each Party shall indemnify and hold harmless the other Party from claims to the extent resulting from a Party’s violation of any applicable EH&S Laws or to the extent that a Party causes a release of any regulated substance to the environment. The Parties recognize that LESSEE is only leasing a small portion of LESSOR’s property and that LESSEE shall not be responsible for any environmental condition or issue except to the extent resulting from LESSEE’s activities and responsibilities. a. LESSOR 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 Property, unless such conditions or concerns are caused by the specific activities of LESSEE in the Premises. b. LESSOR shall hold LESSEE harmless and indemnify LESSEE from and assume all duties, responsibility and liability at LESSOR’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 LESSEE; 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 LESSEE.
32.33. 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
Lessee Site Name: Kokanee Lessee Site No.: 289859
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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. 33.34. 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. 34.35. 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. 35.36. 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
Lessee Site Name: Kokanee Lessee Site No.: 289859
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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. 36.37. RELOCATION. LESSOR, on one (1) occasion, may require LESSEE to relocate the Premises to another location on the Property ("Alternate Site"), if: a. The Alternate Site is similar to the Premises in size and is compatible for LESSEE's use, in LESSEE's sole and reasonable discretion; b. 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; c. LESSOR gives LESSEE at least twelve (12) months written notice before requiring LESSEE to relocate; and d. 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.
37.38. SURVIVAL. The 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. 38.39. 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.
40. ATTORNEY’S FEES. The prevailing Party in any legal proceeding brought to enforce or interpret the provisions of this Agreement shall be entitled to recover reasonable attorney’s fees and costs. 39. 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 shll constitute ome and the same instrument.
Comment [BHFS18]: This language is too vague need to spefically identify which provisons survive.
Formatted: No underline
Formatted: No bullets or numbering, Nowidow/orphan control
Comment [BHFS19]: Recommend this provision so the entire agreement does not need to be circualted for signature.
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[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: _______________________________
Lessee Site Name: Kokanee Lessee Site No.: 289859
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Exhibit “A” (Legal Description of the Property)
Lessee Site Name: Kokanee Lessee Site No.: 289859
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Exhibit “B” (The Premises) ATTACHED
Active/48464006.1 16906981
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Description #48010097v1<Active> - v3 STPUD Draft Option Land Lease - Kokanee - VZW Revised v3 (02.07.18)
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