HomeMy WebLinkAboutResolution 2015-074 Verizon Wireless Lease AgreementMARANA RESOLUTION NO. 2015 -074
RELATING TO REAL PROPERTY; APPROVING AND AUTHORIZING THE MAYOR TO
EXECUTE AN OPTION AND WIRELESS COMMUNICATIONS FACILITY LEASE
AGREEMENT WITH VERIZON WIRELESS LLC FOR THE LEASE OF APPROXIMATELY
864 SQUARE FEET OF rI "OWN -OWNED PROPERTY AT THE TOWN OF MARANA
WATER RESERVOIR SITE LOCATED AT LINDA VISTA BOULEVARD AND HARTMAN
LANE
WHEREAS Verizon Wireless LLC seeks to lease approximately 864 square feet of Town
property at the Town water reservoir site located at Linda Vista Boulevard and Hartman Lane for
a wireless communication facility, including a cell tower; and
WHEREAS the Mayor and Council of the Town of Marana find that the best interests of
Marana and its citizens are served by entering into the proposed option and lease agreement.
NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE
TOWN OF MARANA, that the Option and Wireless Communications Facility Lease Agreement
with Verizon Wireless LLC attached to this resolution as Exhibit A, for the lease of
approximately 864 square feet of Town -owned property at the Town water reservoir site located
at Linda Vista Boulevard and Hartman Lane, is hereby approved, and the Mayor is authorized to
execute it for and on behalf of the Town of Marana.
IT IS FURTHER RESOLVED that the Town Managcr and staff are hereby directed and
authorized to undertake all other and further tasks required or beneficial to carry out the terms,
obligations, conditions and objectives of the option and lease agreement.
PASSED AND ADOPTED by the Mayor and C o uncil of the Town of Marana, Arizona,
this 30th day of June, 2015.
ATTEST:
No
{ MARANA r
^V*%/
celyn ronson, Town Clerk
Mayor Ek Honea
APPROVED AS TO FORM:
�F nk Ca 1 y, Town Att ney
Marana Resolution No. 2017 -074 - I -
OPTION AND WIRELESS COMMUNICATIONS
FACILITY LEASE AGREEMENT
This Option and Wireless Communications Facility Lease Agreement
(""Agreement") is entered into by and between the Town of Marana, an Arizona
municipal corporation (""TOWN") and Verizon Wireless (VAW) LLC, a Delaware
limited liability company, d/ b/ a Verizon Wireless (""Verizon" or ""Lessee"). TOWN and
Verizon are at times collectively referred to as "Parties" or individually as a "Party" .
RECITALS
A. TOWN owns land located in the Town of Marana, Pima County, Arizona, at
5541 W. Linda Vista Boulevard, as further described in Exhibit A attached hereto and
incorporated herein by this reference (""Property").
B. TOWN is willing to lease an area to Verizon consisting of approximately 864
square feet located within the Property and as more particularly described in Exhibit B
attached hereto and incorporated herein by this reference (""the Site ") for a wireless
communication facility.
C. The access routes and utility easements necessary for Verizon's use under this
Agreement (""Access Routes ") are depicted in the map attached hereto as part of
Exhibit B.
D. The Site and Access Routes are collectively referred to hereafter as the
Premises.
E. TOWN and Verizon desire to establish their respective rights and responsibilities
regarding this Option and Wireless Communication Facility Lease Agreement.
OPTION AGREEMENT
In consideration of the mutual covenants contained in this Option Agreement,
the Parties agree as follows:
1. Option Period. TOWN hereby grants to Verizon the right and option to lease the
Premises for the term and in accordance with the covenants and conditions set forth in
this Agreement. The Option Period shall commence as of the signature date of the last
Party to sign this Agreement and continues for a period of 12 months, unless sooner
terminated or exercised by Verizon. If Verizon has not terminated or exercised the
option within the initial 12 -month Option Period, TOWN shall automatically grant a
second Option Period of 12 months to Verizon, commencing upon the anniversary date
of the first Option Period.
2. Inspection Rights During any Option Period, Verizon shall have the right to
analyze the suitability of the Premises for its intended use. Verizon and its employees,
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agents, contractors, engineers, and surveyors shall have the right to enter upon the
Property to inspect, conduct, perform and examine soil borings, drainage testing, material
sampling, surveys and other geological or engineering tests or studies of the Property, to
apply for and obtain all licenses and permits required for Verizon's use of the Premises
from all applicable governmental or regulatory entities, and to do those things on or off
the Property that, in the sole opinion of Verizon, are necessary to determine the physical
condition of the Property, the environmental history of the Property, TOWN's title to the
Property and the feasibility or suitability of the Premises for Verizon s use as defined in
this Agreement, all at Verizon s expense (the "Due Diligence Investigation "). Activities
conducted in connection with Verizon s Due Diligence Investigation shall not be deemed
to constitute exercise of the option or commencement of construction of Verizon's
facilities.
3. Access Verizon shall comply with any reasonable security requirements of
TOWN if the Site is located within a fenced or secured access location.
4. Government Approvals It is understood and agreed that Verizon's ability to use
the Premises is contingent upon its obtaining all of the certificates, licenses, permits and
other approvals (collectively the "Governmental Approvals ") that may be required by
any federal, state or local authorities which will permit Verizon's use of the Premises as
set forth above. TOWN shall cooperate with Verizon 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 Verizon, unless required to do so
by law or regulation or to protect public health, safety or welfare. However, nothing
herein shall be deemed to constitute a contractual obligation of TOWN, as a
municipality, to issue a required Governmental Approval where the officer, agent or
employee of TOWN responsible for the issuance of such Governmental Approval
deems the issuance of such a Governmental Approval to be inappropriate. This Lease is
not intended to supersede, modify or waive any requirements in the Marana Town
Code intended to regulate the construction and operation of telecommunications
services or the location and development of wireless communication facilities. If (1) any
applications for such Governmental Approvals should be finally rejected; (2) any
Governmental Approval issued to Verizon is canceled, expires, lapses, or is otherwise
withdrawn or terminated by governmental authority; or (3) Verizon determines that
such Governmental Approvals may not be obtained in a timely manner, Verizon shall
have the right to terminate this Agreement, as set forth in paragraph 5 of this Option
Agreement.
5. Termination of Option. If Verizon determines, during any Option Period, that the
Premises are not appropriate for Verizon's intended use, or if for any other reason, or
no reason, Verizon decides not to lease the Premises, then Verizon shall have the right
to terminate this Agreement without penalty upon written notice to TOWN at any time.
If the second Option Period, as described in paragraph 1 of this Option Agreement,
expires and Verizon has not exercised the option, this Agreement shall terminate. If
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Verizon terminates the option or fails to exercise the option, any Option Fee, as set forth
in paragraph 9 of this Option Agreement, below, will not be prorated or refunded.
6. Exercise of Option. At any time during any Option Period, Verizon may notify
TOWN in writing that it is exercising its option to lease the Premises and to commence
the Lease with TOWN, as set forth in Article 1 of the Lease Agreement below.
7. Damages and Indemnification. Verizon shall be responsible for any damages
caused by its agents or employees to the Premises or adjacent property, including
vegetation, during any Option Period, and shall promptly restore the damaged
property to its prior condition, less reasonable wear and tear. Verizon shall not be
responsible for any damages caused by the negligence or intentional misconduct of
TOWN. Verizon shall appear, defend, indemnify and hold harmless TOWN, its
officers, agents and employees from and against any claim for damages arising out of
the acts or omissions of Verizon, its officers, agents and employees related to this
Option Agreement. If Verizon fails or refuses to restore the Premises or adjacent
property to its condition as it was prior to any Option Period, TOWN is authorized to
do so and charge the costs to Verizon.
8. Reservation. During any Option Period, unless Verizon has previously
terminated this Agreement, TOWN will not lease the Site to another person or
materially compromise Verizon's possible future lease of the Site for wireless
communications.
9. Consideration for Option. In consideration for the rights as described in this
Option Agreement, Verizon shall pay to TOWN consideration in the amount of
$1,500.00 for each Option Period (""Option Fee ") . The Option Fee for the initial Option
Period will be paid within 45 calendar days from the full execution of this Agreement.
The Option Fee for the second Option Period, if any, will be paid within 45 calendar
days of commencement of the second Option Period. The Option Fee will not be
prorated for any partial month either at commencement or termination. If Verizon
enters into a Lease with TOWN for the Site, the Option Fee will not be prorated or
refunded.
10. General Provisions The general provisions found in Articles 18 through 20 of
the Lease Agreement apply to this Option Agreement.
LEASE AGREEMENT
In consideration of the mutual covenants contained in this Lease Agreement, the
Parties agree that the terms and conditions of this Lease Agreement shall apply from
and after the Commencement Date as follows:
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Article 1. Lease Term
1.1. Commencement The Lease shall commence on the first day of the first month
after Verizon notifies TOWN in writing that Verizon is exercising its option to lease the
Premises and to commence the Lease with TOWN, as set forth in paragraph 6 of the
Option Agreement (""Commencement Date ") . Verizon (hereinafter referred to as
"Lessee ") shall notify TOWN in writing of its intention to start construction on the Site
and the start date. The Commencement Date shall be noted here once it is known and
shall be incorporated herein by this reference as if fully set forth in this Agreement at
the time of execution:
1.2. Term. The Lease shall be for a term of five years (""Term") unless sooner
terminated as provided herein.
1.3. Renewal. The Lease will automatically renew for up to five successive five -year
periods (""Renewal Terms ") on the same terms and conditions as set forth herein, unless
sooner terminated as provided in this Lease Agreement. The Term and Renewal Terms
may collectively be referred to as the "Lease Term."
1.4. Holding Over. Any holding over after the expiration of the Lease Term, with
the consent of TOWN shall be construed to be a tenancy from month to month at one
and one -half times the rents herein specified (prorated on a monthly basis). The
provisions of this Lease Agreement shall apply to any such holding over period.
Article 2. Rent
2.1. Monthly Base Rent. During the Lease Term, Lessee shall pay to TOWN monthly
rent of $1,500.00 (""Rent") in consideration for the Lease. The first rental payment shall
be made within 30 days after the Commencement Date, and shall be prorated through
the end of the month. All subsequent rental payments shall be made to TOWN on or
before the first day of the month in advance.
2.2. Adjustment. Beginning on the first anniversary of the Commencement Date,
and on each anniversary of the Commencement Date thereafter, Rent shall increase by
an amount equal to 3 % above the Rent applicable in the immediately preceding year.
2.3. Payment of Rent. All Rent shall be payable to the Town of Marana, 11555 W.
Civic Center Drive, Marana, Arizona 85653; Attention: Finance Department.
Article 3. Permissible Use
3.1. In General. The Property may be used by Lessee for the transmission and
reception of radio communication signals and for the construction, installation,
operation, maintenance and repair of related support facilities (such as tower and base,
antennas, microwave dishes, equipment shelters and/or cabinets) but only for the
provision of what is commonly known as cellular telephone service (whether or not
technically referred to as Personal Communications Service, or some other term) by the
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use of "personal wireless service facilities" (as such phrase is defined in §704 of the
Federal Telecommunications Act of 1996, Pub. L. No. 104 -104, 110 Stat. 56 (1996),
partially codified at 47 U.S.C. § 332(c)(7)(C)(2), hereinafter "1996 Act Section 704 ") and
not for any other purpose. Lessee shall, at its expense, comply with all present and
future federal, state, and local laws, ordinances, rules and regulations (including but not
limited to laws and ordinances relating to health, safety, radio frequency emissions, and
radiation) in connection with the use of (and operations, maintenance, construction
and/or installations at) the Property.
3.2. Maintenance of Government Approvals Lessee shall be responsible for
maintaining during the Lease Term all Government Approvals, as defined in paragraph
4 of the Option Agreement, above, that may be required by any federal, state or local
authorities for the use of the Premises and the conduct of its business related to the
Premises.
3.3. Additional Providers Lessee may allow third party telecommunications
providers (""Additional Providers ") to co- locate on Lessee's antenna structure, as
described in the Site Plan attached hereto as Exhibit C and incorporated herein by this
reference. All persons, other than Lessee, providing telecommunications services from
the Lessee Facilities or co- locating on the antenna structure shall do so only as
sublessees of Lessee in accordance with the provisions of Article 9 of this Lease relating
to subletting. All Additional Providers shall hold a valid telecommunications license
during any period of time that the Additional Provider co- locates upon or otherwise
uses the Premises and/or the Lessee Facilities, or any part thereof, for
telecommunications services.
3.4. Compliance with Laws Lessee shall comply with all applicable laws, including
but not limited to zoning and environmental laws relating to its use and possession of
the Premises.
Article 4. Absence of Warranties
Lessee has leased the Premises after a full and complete inspection thereof, as well as
the title thereto, and knowledge of its present uses and nonuses. Lessee accepts the
Premises in the condition or state in which the Premises now exist without any
representation or warranty, express or implied in fact or law, by TOWN and without
recourse to TOWN, as to the title thereto, the nature, condition, or usability thereof or
the use or uses to which the Premises or any part thereof may be put, except for the
Warranty of Quiet Enjoyment set forth in Article 16 below. Except as otherwise
provided in this Agreement, TOWN shall not be required to furnish any services or
facilities or to make any repairs or alterations in or to the Premises or to provide any
off - Premises improvements, such as utilities or paving, or other forms of access to the
Premises, other than what may already exist as of the Commencement Date. Lessee
assumes the full and sole responsibility for the condition, construction, operation,
repair, demolition, replacement, maintenance, and management of the Premises.
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Notwithstanding anything to the contrary contained in this Agreement, TOWN shall, at
its sole cost and expense, repair, replace and maintain the Site in good condition and
repair as needed for Lessee's operation and use of the its facilities.
Article 5. Improvements
5.1. Lessee Facilities Lessee has the right to construct, maintain, install, repair
secure, replace, remove and operate on the Premises wireless communications facilities,
including but not limited to a foundation, utility lines, transmission lines, an air
conditioned equipment shelter(s) and/or an air conditioned equipment room, electronic
equipment, transmitting and receiving antennas, microwave dishes, antennas and
equipment, a power generator and generator pad, and supporting equipment and
structures, and security fencing (""Lessee Facilities ") as generally described in the Site
Plan attached hereto as Exhibit C and incorporated herein by this reference.
5.2. Utilit Lines Lessee at its own expense shall install utility lines in the approved
Access Routes to the Site necessary for Lessee Facilities and consistent with approval of
the utility company.
5.3. Construction All Lessee Facilities shall be constructed and installed at Lessee's
sole cost and expense and in a good and workmanlike manner. Lessee shall obtain
TOWN's prior approval of construction plans and specifications for the Lessee
Facilities, which shall not be unreasonably withheld, conditioned or delayed. All Lessee
Facilities shall be constructed or installed in compliance with specifications of plans
approved by TOWN. Within 30 days after completion of construction, Lessee shall
provide TOWN with as -built drawings of the Lessee Facilities.
5.4. Lien -free Construction Lessee shall keep the Premises and all improvements
thereon free of any mechanic's or materialmen's liens or liens of any kind or nature for
any work done, labor performed, or material furnished on or to the Premises. If any
lien is filed, Lessee shall, at its sole cost, cause such lien to be removed from the
Premises within 60 days of notice or becoming aware of the lien.
5.5. Title to Improvements Title to the Lessee Facilities and any equipment placed
on the Premises by Lessee shall be held by Lessee or its lenders or assigns and are not
fixtures, unless abandoned with permission of TOWN pursuant to paragraph 5.85.8
( Removal or Abandonment .
5.6. Alteration or Additional Improvements Lessee shall make no alterations or
additional improvements to or upon the Premises beyond those described in the plans
and specifications approved by TOWN without first obtaining written approval of
TOWN. Nothing herein shall prevent Lessee from maintaining the Lessee Facilities or
from replacing equipment due to wear and tear or technological advancements
provided that such upgrades or replacements are with "like- kind" equipment which is
comparable in dimensions and weight to equipment described in the plans and
specifications and such accommodations comply with all requirements of this
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Agreement, the TOWN Conditional Use Permit, Municipal Code, Land Development
(Zoning) Code or other requirements. Approved alterations, additions, replacements
and upgrades shall become part of Lessee Facilities as that term is used in this
Agreement.
5.7. Maintenance Lessee at its own expense shall maintain the Premises and the
Lessee Facilities in good repair and in a manner suitable to TOWN so as not to conflict
with any adjacent TOWN operations. Lessee shall have sole responsibility for the
maintenance, repair, and security of the Lessee Facilities.
5.8. Removal or Abandonment Unless TOWN in writing allows or requires Lessee
to abandon the Lessee Facilities in place, Lessee at its sole expense shall remove the
Lessee Facilities on or before the expiration or within 90 days after any earlier
termination of this Lease Agreement. Such removal shall be done in a workmanlike
and careful manner and without interference or damage to any other facilities or
operations on the Premises. Lessee shall repair any damage to the Premises caused by
such removal to the reasonable satisfaction of TOWN. Upon no less than 90 days'
notice prior to the expiration of this Lease Agreement, or within 60 days of any earlier
termination, TOWN may require Lessee to abandon the Lessee Facilities in place at no
cost to TOWN if Lessee terminates the Lease and provided that TOWN has not
materially breached this Agreement. Title to any Lessee Facilities which are abandoned
in place with the written permission of TOWN shall be deemed transferred to TOWN
without compensation to Lessee. Said abandoned Lessee Facilities shall thereafter be
the sole property of TOWN "as -is" without any warranty, express or implied, including
any warranties of particular purpose.
Article 6. Access and Utilities
6.1. Access to Site TOWN shall provide Lessee, Lessee's employees, agents,
contractors, subcontractors and assigns with access to the Site 24 hours a day, seven
days a week, at no charge to Lessee. Lessee shall comply with reasonable security
requirements of TOWN related to accessing the Site.
6.2. Non - Exclusive Access Routes Lessee, its agents, employees and contractors,
shall have a non - exclusive right and easement for pedestrian and vehicular ingress and
egress across, and Lessee shall have an easement for utility lines to access the Site via
the Access Routes described or depicted generally in Exhibit C. TOWN and Lessee each
shall conduct operations within the Access Routes so as to cause minimal or no
interference to others.
6.3. Maintenance of Roadway TOWN shall maintain all access roadways from the
nearest public roadway to the Premises in a manner sufficient to allow pedestrian and
vehicular access at all times under normal weather conditions. TOWN shall be
responsible for maintaining and repairing such roadways, at its sole expense, except for
any damage caused by Lessee's use of such roadways.
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6.4. Payment of Utilities Lessee shall, at its own expense, install separate meters for
electricity and other utilities necessary for Lessee Facilities and shall timely pay all
utility charges associated therewith.
Article 7. Interference
7.1. Interference with Existing Uses Lessee's installation, operation and
maintenance of Lessee Facilities shall not damage or interfere in any way with existing
TOWN operations or related activities or other existing lessee or licensee activities.
Lessee agrees to cease all such actions which materially interfere with existing activities
upon written notice of such interference; provided, however, in such case Lessee shall
have the right to terminate the Lease.
7.2. Interference and New Uses Subsequent to the installation of the Lessee
Facilities, TOWN will not, and will not permit its lessees or licensees to, install new
equipment on or make any alterations to the Premises or property contiguous thereto
owned or controlled by TOWN, if such modifications are likely to cause a material
interference with Lessee's operations. In the event interference occurs, TOWN agrees to
use best efforts to eliminate any material interference within a reasonable time period.
TOWN's failure to comply with this paragraph shall be a material breach of this Lease
Agreement.
Article 8. Fees and Taxes
Lessee shall pay, as they become due and payable, all fees, charges, taxes and expenses
required for licenses and/or permits required for or occasioned by Lessee's use of the
Premises. Lessee shall pay all real and personal property taxes assessed against the
Lessee Facilities. TOWN shall pay when due, all real property taxes and all other taxes,
fees and assessments attributable to the Premises or this Lease Agreement.
Article 9. Assignment and Subletting
9.1. Assignment Lessee may assign the Lease Agreement to another company, with
TOWN's written consent, which shall not be unreasonably withheld, conditioned or
delayed; provided, however, Lessee may i) assign or transfer this Lease Agreement to a
financially viable parent, subsidiary, or affiliate, 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 without TOWN consent, and, ii) Lessee
may assign the Lease Agreement to a commercial lending institution solely as security
for financing purposes without TOWN consent. In the event of an assignment, assignee
shall assume all obligations and liabilities of Lessee, known and unknown, under the
Lease Agreement arising both before and after the assignment date.
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9.2. Bankruptcy. Any person or entity to which this Lease Agreement is assigned or
transferred as part of any bankruptcy proceeding shall be deemed without further act to
have assumed all of the liabilities and obligations of Lessee arising under this Lease
Agreement on and after the date of such assignment. Any such assignee or transferee
shall upon demand execute and deliver to TOWN an instrument confirming such
assumption or transference. Any monies or other considerations payable or otherwise
to be delivered in connection with such assignment or transference shall be paid to
TOWN, shall be the exclusive property of TOWN, and shall not constitute "property" of
the Lessee or of the estate of Lessee within the meaning of the Bankruptcy Code. Any
monies or other considerations constituting TOWN's property under the preceding
sentence not paid or delivered to TOWN shall be held in trust for the benefit of TOWN
and be promptly paid to TOWN.
9.3. Subletting Except as provided in paragraphs 9.4 and 9.5 below, Lessee may not
sublet any portion of the Property, the Premises or the Lessee Facilities without the
prior written consent of TOWN, which consent may be withheld for any reason or no
reason in TOWN's sole discretion.
9.4. Additional Providers as Sublessees Lessee may allow Additional Providers to
co- locate upon Lessee's antenna structure, as set forth in paragraph 3.3 above and this
paragraph 9.5, provided that each such Additional Provider is a sublessee and Lessee
and each such sublessee complies with all of the applicable terms and conditions of this
Lease. The sublease of the Premises, the Lessee Facilities, or any part thereof, shall not
relieve Lessee of any obligations, responsibilities or liabilities Lessee may have under
this Lease.
9.4.1. If Lessee desires to co- locate Additional Providers on Lessee's antenna
structure, Additional Providers shall be required to obtain a separate ground lease
from TOWN for ground space on the Property and a separate sublease from Lessee
for space on Lessee's antenna structure. The Parties understand that: (i) TOWN and
Lessee shall reasonably cooperate to locate Additional Providers on the Property; (ii)
TOWN may not charge any fee to Lessee for subleasing space on Lessee's antenna
structure; (iii) Lessee shall not be liable to TOWN in any way for failure to enter
into, maintain or renew a sublease with Additional Providers for the use of Lessee's
antenna structure; (iv) TOWN shall not be liable to Lessee in any way for failure to
enter into, maintain or renew a ground lease with Additional Providers for the use
of TOWN's Property; (v) Lessee shall have the right to determine in its sole
discretion whether it will sublease any portion of the antenna structure; and (vi)
TOWN shall have the right to determine in its sole discretion whether it will lease
any portion of its Property to Additional Providers.
9.4.2. If Lessee subleases space on Lessee's antenna structure, Lessee shall receive
100% of any rental paid by Additional Providers for such space. If TOWN leases
ground space on the Property, TOWN shall receive 100% of any rental paid by
Additional Providers for such ground space. Additional Providers shall be
instructed to pay the foregoing percentage amounts directly to TOWN and Lessee.
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Lessee shall not be responsible to TOWN for the collection or payment of rents by
Additional Providers to TOWN, and TOWN shall not be responsible to Lessee for
the collection or payment of rents by Additional Providers to Lessee. Neither Party
shall have liability to the other Party in the event of failure of payment by
Additional Providers.
9.5. Sublease Requirements All of the following requirements must be met prior to
any sublease to an Additional Provider for collocation purposes:
9.5.1. All subleases shall (a) be in writing, (b) identify the Additional Provider as
the sublessee, (c) require the sublessee to comply with all of the terms and
conditions of this Lease to the same extent as Lessee must comply, and (c) be
acceptable in form to the Marana Town Attorney.
9.5.2. Lessee and sublessee shall, at their own expense, obtain all necessary
zoning, land use or similar approvals for the collocation on the Premises.
9.5.3. Lessee shall furnish TOWN with a set of the plans and specifications for
any alteration of the Lessee Facilities or the Premises required for the Additional
Provider to collocate on the Lessee Facilities, including, but not limited to, any
additional antennae, power source or related equipment and improvements. Prior
to the commencement of any construction or installation of any such alteration by
the sublessee, TOWN shall have determined that the alterations are acceptable and
shall have reviewed the plans and specifications and determined what additional
permits and zoning requirements, if any, are applicable.
Article 10. Default and Remedies
10.1. Default by Lessee Lessee shall be deemed in default of this Lease if any of the
following occurs:
10.1.1. Lessee fails to pay Rent in compliance with Article 2 of this Lease
Agreement or any other sums to TOWN when due, and does not cure such default
within ten days of receipt of written notice from TOWN; or
10.1.2. If Lessee fails to comply with the performance of any other covenant or
condition of this Lease Agreement and does not cure such other default within 30 days
after written notice from TOWN specifying the default complained of, unless such
default cannot reasonably be cured within 30 days, in which case Lessee will not be in
default as long as Lessee commences to cure the default within the 30 -day period and
diligently pursues such cure to completion; or
10.1.3. If Lessee abandons the Premises and fails to pay rent or otherwise comply
with the requirements of this Agreement for a period of four months or longer; or
10.1.4. If Lessee is adjudicated as bankrupt or makes any assignment for the benefit
of creditors.
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10.2. TOWN's Remedies in Event of Lessee Default In the event of a default by
Lessee, TOWN shall notify Lessee, in writing, of said default. If Lessee fails to cure
within 30 days after the date of the notice, or in such other applicable time period as
outlined above, in addition to and not exclusive of any other remedy available to
TOWN by operation of law, TOWN shall have the right, at its option, to terminate the
Lease Agreement in which event Lessee shall immediately remove the Lessee Facilities
and pay TOWN a sum of money equal to the total of: (i) the amount of the unpaid Rent
accrued through the date of termination; and (ii) any other amount necessary to
compensate TOWN for all detriment proximately caused by Lessee's failure to perform
its obligations under the Lease.
10.3. Cure by TOWN In the event of any default of this Lease Agreement by Lessee,
TOWN may at any time, after notice, cure the default for the account of and at the
expense of the Lessee. If TOWN is compelled to pay or elects to pay any sum of money
or to do any act which will require the payment of any sum of money or is compelled to
incur any expense, including reasonable attorney fees in instituting, prosecuting or
defending any action to enforce TOWN's rights under this Lease, the sums so paid by
TOWN, with all interest, costs and damages, shall be deemed to be Additional Rent and
shall be due from the Lessee to TOWN on the first day of the month following the
incurring of the respective expenses.
10.4. Default by TOWN TOWN shall be in default if TOWN fails to comply with
the performance of any covenant or condition of this Lease Agreement and does not
cure such other default within 30 days after written notice from Lessee specifying the
default complained of, unless such default cannot reasonably be cured within 30 days,
in which case TOWN will not be in default as long as TOWN commences to cure the
default within the 30 -day period and diligently pursues such cure to completion.
10.5. Lessee's Remedies in Event of TOWN Default In the event of a TOWN default
and failure to cure, in addition to and not exclusive of any other remedy available to
Lessee by operation of law, Lessee may terminate this Lease upon written notice to
TOWN and shall remove the Lessee Facilities as set forth in paragraph 5.8.
Article 11. Voluntary Termination
11.1. Voluntary Termination by Lessee This Lease Agreement may be terminated
by Lessee without further liability on 30 days' prior written notice (i) if Lessee is unable
to reasonably obtain or maintain any certificate, license, permit, authority or approval
from any governmental authority, thus, restricting Lessee from installing, removing,
replacing, maintaining or operating the Lessee Facilities or using the Premises in the
manner intended by Lessee; (ii) if Lessee determines that the Premises are not
appropriate for its operations for economic, environmental or technological reasons,
including without limitation, signal strength, coverage or interference, or (iii) Lessee
otherwise determines, within its sole discretion, that it will be unable to use the
Premises for Lessee's intended purpose.
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11.2. Voluntary Termination by TOWN.
a a
11.2.1. During the first Renewal Term (years 6 -10), this Lease Agreement may be
terminated by TOWN without further liability to Lessee if TOWN reasonably
determines termination is necessary to serve a governmental (non - proprietary)
purpose, upon one year's prior written notice to Lessee.
11.2.2. At any time after the first Renewal Term (year 11 or subsequent), this
Agreement may be terminated by TOWN without further liability to Lessee upon
one year's prior written notice to Lessee.
Article 12. Damage or Destruction of Lessee Facilities
If the Lessee Facilities or any portion of the Lessee Facilities are destroyed or damaged
so as to materially interfere with effective use of the Lessee Facilities through no fault or
negligence of Lessee, Lessee may elect to terminate this Lease Agreement upon 30 days'
written notice to TOWN. In such event, Lessee shall promptly remove the Lessee
Facilities from the Premises as set forth in paragraph 5.8 and this Lease Agreement (and
Lessee's obligation to pay rent) shall terminate upon Lessee's fulfillment of the same.
Upon termination, Lessee shall be entitled to the reimbursement of any Rent prepaid by
Lessee. TOWN shall have no obligation to repair any damage to any portion of the
Premises.
Article 13. Condemnation
If the Premises are taken by eminent domain, this Lease Agreement shall terminate as of
the date title to the Premises vests in the condemning authority. If a portion of the
Premises is taken by eminent domain so as to materially hinder effective use of the
Premises by Lessee, either Party shall have the right to terminate this Lease Agreement as
of said date of title transfer, by giving 30 days' written notice to the other Party. In the
event of any taking under the power of eminent domain, compensation shall be as
determined by applicable law.
Article 14. Indemnity
14.1. Disclaimer of Liability TOWN shall not at any time be liable for injury or
damage occurring to any person or property from any cause whatsoever arising out of
Lessee's construction, maintenance, repair, use, operation, condition or dismantling of
the Premises, unless such injury or damage is caused by the negligence of TOWN or
TOWN's employees.
14.2. Indemnification by Lessee Lessee shall, at its sole cost and expense, indemnify
and hold harmless TOWN and all associated, affiliated, allied and subsidiary entities of
TOWN, now existing or hereinafter created, and their respective officers, boards,
commissions, employees, agents, attorneys, and contractors (hereinafter referred to as
"Indemnitees" ), from and against:
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14.2.1. Any and all liabilities, obligations, damages, penalties, claims, liens, costs,
charges, losses and expenses (including, without limitation, reasonable fees and
expenses of attorneys, expert witnesses and consultants), which may be imposed
upon, incurred by, or be asserted against the Indemnitees by reason of any act or
omission of Lessee, its personnel, employees, agents, contractors or subcontractors,
resulting in personal injury, bodily injury, sickness, disease or death to any person
or damage to, loss of or destruction of tangible or intangible property, libel, slander,
invasion of privacy and unauthorized use of any trademark, trade name, copyright,
patent, service mark or any other right of any person, firm or corporation, which
may arise out of or be in any way connected with the construction, installation,
operation, maintenance, use or condition of the Premises or the Lessee's failure to
comply with any federal, state or local statute, ordinance or regulation.
14.2.2. Any and all liabilities, obligations, damages, penalties, claims, liens, costs,
charges, losses and expenses (including, without limitation, reasonable fees and
expenses of attorneys, expert witnesses and other consultants), which are imposed
upon, incurred by or asserted against the Indemnitees by reason of any claim or lien
arising out of work, labor, materials or supplies provided or supplied to Lessee, its
contractors or subcontractors, for the installation, construction, operation, maintenance
or use of the Premises and, upon the written request of TOWN, Lessee shall cause such
claim or lien covering TOWN's property to be discharged or bonded within 30 days
following such request.
14.2.3. Any and all liabilities, obligations, damages, penalties, claims, liens, costs,
charges, losses and expenses (including, without limitation, reasonable fees and
expenses of attorneys, expert witnesses and consultants), which may be imposed upon,
incurred by or be asserted against the Indemnitees by reason of any financing or
securities offering by Lessee or its affiliates for violations of the common law or any
laws, statutes, or regulations of the State of Arizona or United States, including those of
the Federal Securities and Exchange Commission, whether by Lessee or otherwise.
14.3. Lessee's Right of Recovery Nothing herein shall be construed to waive
Lessee's rights to seek recovery against TOWN for TOWN's negligence or willful
misconduct other than lost profits or revenues caused to Lessee's operations, or to seek
recovery against third persons for any damages caused to property or injury to persons,
in, upon or about the Premises by such other persons.
14.4. Assumption of Risk Lessee undertakes and assumes for its officers, agents,
affiliates, contractors and subcontractors and employees (collectively "Lessee" for the
purpose of this paragraph 14.4), all risk of dangerous conditions, if any, on or about the
Premises, and Lessee hereby agrees to indemnify and hold harmless the Indemnitees
against and from any claim asserted or liability imposed upon the Indemnitees for
personal injury or property damage to any person (other than from Indemnitee's
negligence) arising out of Lessee's installation, operation, maintenance, condition or use of
the Premises or Lessee's failure to comply with any federal, state or local statute,
ordinance or regulation.
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14.5. Defense of Indemnitees. If any action or proceeding shall be brought against the
Indemnitees by reason of any matter for which the Indemnitees are indemnified
hereunder, Lessee shall, upon notice from any of the Indemnitees, at Lessee's sole cost and
expense, resist and defend the same with legal counsel selected by Lessee and approved
by TOWN; provided however, that Lessee shall not admit liability in any such matter on
behalf of the Indemnitees without the written consent of TOWN and provided further that
Indemnitees shall not admit liability for, nor enter into any compromise or settlement of,
any claim for which they are indemnified hereunder, without the prior written consent of
Lessee.
14.6. Notice, Cooperation and Expenses
14.6.1. TOWN shall give Lessee prompt notice of the making of any claim or
commencement of any action, suit or other proceeding covered by the provisions of
this Article. Nothing herein shall be deemed to prevent TOWN from cooperating
with Lessee and participating in the defense of any litigation by TOWN's own
counsel. Lessee shall pay all reasonable, third - party, out -of- pocket expenses
incurred by TOWN in response to any such actions, suits or proceedings. These
expenses shall include all reasonable, third - party, out -of- pocket expenses such as
reasonable attorney fees and the reasonable expenses of TOWN's agents, employees
or expert witnesses, and disbursements and liabilities assumed by TOWN in
connection with such suits, actions or proceedings but shall not include attorneys'
fees for services that are unnecessarily duplicative of services provided TOWN by
Lessee.
14.6.2. If Lessee requests TOWN assist it in such defense then Lessee shall pay all
reasonable expenses incurred by TOWN in response thereto, including defending itself
with regard to any such actions, suits or proceedings. These expenses shall include all
out -of- pocket expenses such as attorney fees and shall also include the costs of any
services rendered by the TOWN's attorney, and the actual expenses of TOWN's
agents, employees or expert witnesses, and disbursements and liabilities assumed by
TOWN in connection with such suits, actions or proceedings.
14.7. Negligence of Indemnitees Lessee's obligation to indemnify Indemnitees
under this Lease Agreement shall not extend to claims, losses, and other matters
covered hereunder that are caused or contributed to by the negligence or willful
misconduct of one or more Indemnitees.
14.8. Indemnification by TOWN TOWN shall indemnify and hold harmless Lessee
against any claim of liability or loss from personal injury or property damage resulting
from or arising out of the negligence of TOWN and /or the Indemnitees, except to the
extent such claims or damages may be due to or caused by the negligence or willful
misconduct of Lessee, or its personnel, employees, agents, contractors or
subcontractors.
14.9. Indemnities and Insurance Cumulative Lessee's obligations to indemnify do
not diminish in any way Lessee's obligations to insure; and Lessee's obligations to
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insure do not diminish in any way Lessee's obligations to indemnify. Lessee's
obligations to indemnify and provide insurance are in addition to, and do not limit, any
and all other liabilities or obligations of Lessee under or connected with this Agreement.
The amount and type of insurance coverage required by this Agreement will in no way
be construed as limiting the scope of the indemnities in this paragraph.
Article 15. Regulated/Hazardous Substances Indemnification
15.1. Applicable Laws. Lessee recognizes that assuring protection of public health,
welfare and the environment from activities upon the Premises during the Lease Term
is an important consideration for TOWN and during the Lease Term the federal, state
and local laws, rules, regulations and ordinances relating to pollution, protection of the
environment, public health, safety or industrial hygiene (hereinafter referred to as the
"Applicable Laws ") will change. Lessee warrants that throughout the Lease Term,
Lessee will maintain compliance with all Applicable Laws.
15.2. Regulated Substances. Lessee further warrants, unless disclosed and agreed to
by TOWN, that no liquid, solid, semi -solid or gaseous Regulated Substances as defined
herein which are, or during the Lease Term may become, subject to regulation under
Applicable Laws, will be used on the Premises, except for diesel fuel. "Regulated
Substances" include, but are not limited to, any and all substances, materials or wastes
regulated under the Resource Conservation and Recovery Act, 43 U.S.C. Section 8909, et
seq.; the Comprehensive Environmental Response, Compensation and Liability Act, 42
U.S.C. Section 9601, et. seq.; the Toxic Substances Control Act, 15 U.S.C. Section 2601, et
seq.; the Arizona Hazardous Waste Management Act, A.R.S. Section 49 -921, et seq.; the
Arizona Underground Storage Tank Regulation Act, A.R.S. Section 49 -101, et seq.; and
the rules and regulations adopted and guidelines promulgated pursuant to the
Applicable Laws. TOWN agrees that TOWN will not use, generate, store or dispose of,
or permit the use, generation, storage or disposal of, any Regulated Substances on,
under, about or within the Property in violation of any law or regulation.
15.3. Discharges and Emissions. In addition to the other requirements of this Article
15, Lessee shall not release, discharge, leak or emit, or permit to be released, discharged,
leaked or emitted into the atmosphere, ground, soil, sewer system, surface water or
groundwater any substance if such substance (as reasonably determined by TOWN, or
any governmental authority) does or may pollute or contaminate the same, or may
adversely affect: i) the environment, ii) the health, welfare or safety of persons whether
located on the Premises or elsewhere, or iii) the condition, value, use or enjoyment of
the Premises or any other real or personal property.
15.4. Permits. Lessee has or will timely obtain, maintain and comply with all
provisions of all permits, licenses and other authorizations which are required under
the Applicable Laws (hereinafter referred to as the ""Permits").
15.5. Notices Required. Lessee shall notify TOWN in writing of any allegations by
any governmental authority or other person or entity of any event of non - compliance
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with the Applicable Laws or Permits. Lessee shall also notify TOWN in writing of any
allegations by any governmental authority or other person or entity, of any events,
conditions, circumstances, activities, practices, incidents, actions or plans which may
interfere with or prevent continued compliance with Applicable Laws, Permits or the
provisions of this Article, or which may give rise to any common law or legal liability,
or otherwise form the basis of any claim, action, suit, proceeding, hearing or
investigation, based on or related to the generation, manufacture, distribution, use,
treatment, storage, disposal, transport, or handling, or the emission, discharge, release
or threatened release into the environment, of any pollutant, contaminant or Regulated
Substance. Lessee shall give the notice required by this paragraph 15.5 within five
business days of when Lessee becomes aware of any allegations described in this
paragraph. Written notice under this paragraph may be provided by email.
15.6. TOWN Inspections. TOWN, or its authorized representative, agent or
contractor, shall have the right, upon reasonable notice, to inspect the Premises and to
review and copy documents, records, and data maintained by Lessee relating to
substances used and stored on the Premises or disposed of, released or otherwise
removed from the Premises, in order to assure itself that Lessee is in compliance with
the provisions of this Article 15. In addition, TOWN shall have the right, at its expense,
to perform periodic environmental inspections as TOWN deems necessary using the
services of qualified and duly licensed environmental engineers approved by Lessee
whose approval thereof may not be unreasonably withheld. The said engineers shall
conduct such sampling and testing of soils, water, substances and emissions as TOWN
deems necessary to assure itself that Lessee is in compliance with the provisions of this
Article.
15.7. Reimbursement of TOWN Costs; Remediation. If the results of the inspection
indicate a need for further testing and /or remediation as a result of Lessee's use of the
Premises in order to comply with Arizona Department of Environmental Quality
(ADEQ) or Environmental Protection Agency (EPA) remediation standards or
guidelines, then Lessee hereby agrees to reimburse TOWN for its reasonable inspection
costs and to pay for such additional testing and remediation as will be required as a
consequence of Lessee's use of the Premises. Should remediation be required as a
consequence of Lessee's use of Premises, Lessee shall promptly undertake such
remediation as is necessary to restore the condition of the Premises and shall diligently
pursue such work to completion. Lessee's failure to timely perform its obligations
under this Article shall be considered a material breach of this Lease, and Lessee's
obligations under this Article shall continue beyond the expiration or termination
hereof. Nothing in this Article shall constitute a waiver of any right of Lessee, including
without limitation, the right to receive contribution from any individual or entity
responsible for contamination of any part of the Premises.
15.8. Termination. Any instance of non - compliance with Applicable Laws, Permits
or the provisions of this Article shall be grounds for immediate termination of this
Lease by TOWN.
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15.9. Indemnification by Lessee. To the fullest extent permitted by law, Lessee
agrees to indemnify, defend and hold TOWN harmless for any costs of legally required
remediation of environmental contamination and from any claims, demands, actions,
suits, proceedings, hearings, investigations, responsibility, liability, orders, injunctions,
judgments, fines, damages and losses of any nature whatsoever, arising out of or
relating in any way to Lessee's present or future use of, or activities or operations on or
at, the Premises, or arising from or relating to any breach of the provisions of this
Article. Lessee also agrees to indemnify and hold TOWN harmless for any costs and
expenses incurred in connection therewith, including without limitation, any attorneys'
and expert witness fees, investigation, clean up, removal, disposal, remedial, corrective,
or mitigating action costs, fines and penalties related in any way to Lessee's use of the
Premises. These indemnities shall survive the termination of this Lease.
15.10. Indemnification by TOWN. TOWN agrees to defend and indemnify Lessee
and Lessee's partners, affiliates, agents and employees against any and all losses,
liabilities, claims and /or costs (including reasonable attorneys' fees and costs) arising
from TOWN's breach of TOWN's agreement not to use, generate, store or dispose of, or
permit the use, generation, storage or disposal of, any Regulated Substances on, under,
about or within the Property in violation of any law or regulation, as contained in
paragraph 15.2 above.
Article 16. Warranty of Quiet Enjoyment
TOWN covenants that so long as Lessee performs the covenants, terms and conditions
required of Lessee contained herein, Lessee shall peaceably and quietly have, hold and
enjoy the Premises for the aforesaid term and any extensions thereof, and TOWN shall
not in any manner interfere with or disrupt the Lessee's business or frustrate Lessee's
intended use of the Property.
Article 17. Waiver of Lien
TOWN hereby waives any and all lien rights it may have, statutory or otherwise
concerning the Lessee Facilities or any portion thereof which shall be deemed personal
property for the purposes of this Lease Agreement, whether or not the same is deemed
real or personal property under applicable laws, and TOWN gives Lessee and
Mortgagees the right to remove all or any portion of the same from time to time,
whether before or after a default under this Agreement, in Lessee's and/or Mortgagee's
sole discretion and without TOWN's consent. Any Mortgagee shall contact TOWN
prior to removal and TOWN may require Mortgagee to indemnify TOWN for any
damages caused to the Premises.
Article 18. Insurance
18.1. Coverage During the Option Period and during the Lease Term, including
any extensions, Lessee shall maintain, or cause to be maintained, in full force and effect
and at its sole cost and expense, the following types and limits of insurance. The
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coverage amounts set forth below may be met by a combination of underlying and
umbrella policies so long as in combination the limits equal or exceed those stated.
18.1.1. Workers' Compensation insurance meeting applicable statutory
requirements and employer's liability insurance with minimum limits of $100,000
for each accident/ disease/ policy limit.
18.1.2. Commercial general liability insurance with minimum limits of $1,000,000 as
the combined single limit for each occurrence of bodily injury and property damage
and $2,000,000 general aggregate. The policy shall provide blanket contractual liability
insurance for all written contracts, products and completed operations liability,
independent contractor's liability, and cross liability; and coverage for property
damage from perils of explosion, collapse or damage to underground utilities,
commonly known as XCU coverage.
18.1.3. Automobile liability insurance covering all owned, hired, and non -owned
vehicles in use by Lessee, with minimum limits of $1,000,000 as the combined single
limit for each accident for bodily injury and property damage.
18.1.4. At the start of and during the period of any construction, builders all -risk
insurance, together with an installation floater or equivalent property coverage
covering cables, materials, machinery and supplies of any nature whatsoever which
are to be used in or incidental to the installation of the Lessee Facilities. Upon
completion of the installation of the Lessee Facilities, Lessee shall substitute for the
foregoing insurance policies of fire, extended coverage and vandalism and malicious
mischief insurance on the Premises. The amount of insurance at all times shall be
representative of the insurable values installed or constructed.
18.1.5. Business interruption insurance coverage in an amount sufficient to cover
such loss of revenues, for the period of time which it would take, under normal
circumstances, to repair or replace that part(s) of the Premises which is damaged and
caused the loss of revenue.
18.1.6. All policies shall be written on an occurrence and not on a "claims made"
basis.
18.2. Additional Insureds The commercial general liability and automobile liability
policies shall include TOWN as an additional insured as TOWN's interest may appear
(herein referred to as the "Additional Insureds ") .
18.3. Evidence of Insurance. Current certificates of insurance and any required
endorsements for each insurance policy required to be obtained and maintained by
Lessee incompliance with this Article shall be filed and maintained with TOWN within
30 days of execution of this Agreement and within ten days of any renewal or change in
such policies. If TOWN is not provided current certificates and endorsements and must
request an updated certificate or endorsement, Lessee shall pay an administrative fee of
$25.00 for each certificate or endorsement so requested.
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18.4. Lessee Insurance Primary Lessee's insurance shall be primary insurance with
respect to Lessee's obligations under this Agreement and in the protection of TOWN as an
Additional Insured.
18.5. Waiver All policies, including Workers' Compensation and Employers
liability insurance, shall contain a waiver of rights of recovery (subrogation) against
TOWN, its agents, representatives, officials, officers and employees for any claims
arising out of the work or services of Lessee. Lessee shall arrange to have such
subrogation waivers incorporated into each policy via formal written endorsement
thereto.
18.6. Representation of Coverage Adequacy By requiring insurance herein, TOWN
does not represent that coverage and limits will be adequate to protect Lessee. Failure
to demand evidence of compliance with the insurance requirements set forth in this
Agreement or failure to identify any insurance deficiency shall not relieve Lessee from,
nor be construed or deemed a waiver of, Lessee's obligation to maintain the required
insurance at all times during the performance of the Agreement.
18.7. Notice of Claims Lessee shall immediately advise TOWN of any claim or
litigation that may result in liability to TOWN.
18.8. Cancellation of Policies of Insurance Lessee shall give TOWN at least 30
calendar days' written notice prior to a planned cancellation or reduction of any
coverage required by this Article. Lessee shall give TOWN immediate notice of any
other cancellation or reduction of any coverage required by this Article. Cancellation or
reduction of any coverage required by this Article is grounds for termination of this
Agreement by TOWN.
18.9. Insurance Companies All insurance shall be affected under valid and
enforceable policies, insured by insurers reasonably acceptable to TOWN.
18.10. Contractors Lessee shall require that each and every contractor and
subcontractor who performs work on the Premises obtains and maintains substantially
the same coverage with substantially the same limits as required of Lessee.
Article 19. Notices
All notices, requests, demands and other communications under this Agreement shall
be in writing and shall be deemed given if personally delivered or mailed, certified
mail, return receipt requested, or sent by for next - business -day delivery by a nationally
recognized overnight carrier to the following addresses:
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TOWN: TOWN OF MARANA
Attention: Town Manager
Address: 11555 W. Civic Center Drive
Marana, Arizona 85653
With a copy to:
TOWN OF MARANA
Attn: Town Attorney
11555 W. Civic Center Drive
Marana, Arizona 85653
Lessee: VERIZON WIRELESS (VAW) LLC, d /b /a
Verizon Wireless
Attention: Network Real Estate
Address: 180 Washington Valley Road
Bedminster, New Jersey 07921
TOWN or Lessee may from time to time designate any other address for this purpose
by written notice to the other party. All notices hereunder shall be deemed received
upon actual receipt or refusal to accept delivery.
Article 20. Miscellaneous Provisions
20.1. Waiver Failure of TOWN to insist on strict performance of any of the
conditions, covenants, terms or provisions of this Agreement or to exercise any of its
rights hereunder shall not waive such rights, but TOWN shall have the rights to enforce
such rights at any time. The receipt of any sum paid by Lessee to TOWN after a breach
of this Agreement shall not be deemed a waiver of such breach unless expressly set
forth in writing.
20.2. Attorneys' Fees The prevailing Party in any legal claim arising hereunder
shall be entitled to its reasonable attorney's fees and court costs, including appeals, if
any.
20.3. Severability If any provision of the Agreement is invalid or unenforceable
with respect to any Party, the remainder of this Agreement or the application of such
provision to persons other than those as to whom it is held invalid or unenforceable,
shall not be affected and each provision of this Agreement shall be valid and
enforceable to the fullest extent permitted by law.
20.4. Survival Terms and conditions of this Agreement which by their sense and
context survive the termination, cancellation or expiration of this Agreement will so
survive, including, but not limited to, paragraphs 7 ( Damages and Indemnification
and 9 ( Consideration for Option of the Option Agreement, and Article 5
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(Improvements), Article 10 (Default and Remedies), Article 11 (Voluntary
Termination), Article 12 (Damage or Destruction of Lessee Facilities), Article 13
(Condemnation), Article 14 (Indemnity), Article 15 (Regulated /Hazardous Substances
Indemnification) and Article 18 (Insurance) and paragraph 20.10 (Additional
Regulations) of the Lease Agreement.
20.5. Governing Laws. This Agreement shall be governed under the laws of the
state of Arizona, and be binding on and inure to the benefit of the successors and
permitted assignees of the respective Parties.
20.6. Memorandum of Agreement. A Memorandum of Agreement in the form
attached hereto as Exhibit D may be recorded by Lessee confirming the (i) effectiveness
of this Agreement, (ii) expiration date of the Lease Term, (iii) the duration of any
Renewal Terms, and /or other reasonable terms consistent with this Agreement.
20.7. Entire Agreement. This Agreement constitutes the entire Agreement between
the Parties, and supersedes all understandings, offers, negotiations and other leases
concerning the subject matter contained herein. There are no representations or
understandings of any kind not set forth herein. Any amendments, modifications or
waivers of any of the terms and conditions of this Agreement must be in writing and
executed by both Parties.
20.8. Conflict of Interest. TOWN may cancel this Agreement pursuant to A.R.S.
§ 38 -511 (conflict of interest), as may be amended from time to time. In the event
TOWN elects to exercise its rights thereunder, TOWN agrees to immediately give notice
thereof to Lessee.
20.9. Sale of Property. If TOWN, at any time during an Option Period for Lease
Term (i) sells or transfers all or any part of the Property to a purchaser other than
Lessee, or (ii) grants 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 easement or interest therein shall be under and subject to
Lessee's rights pursuant to this Agreement.
20.10. Additional Regulations. The Parties are aware of Sections 6003 and 6409(a) of
the Middle Class Tax Relief and Job Creation Act of 2012, Public Law 112 -96,
preliminarily codified at 47 U.S.C. §§ 1403 and 1455(a) (""Section 6003" and "Section
6409(a) "), are aware that such Sections have not yet been interpreted and applied by the
courts, have differing views on the Sections' potential applicability to this Agreement,
and have consulted their respective legal counsel with respect to same. The Parties
agree that the Federal Communications Commission recent Report and Order,
Acceleration of Broadband Deployment by Improving Wireless Siting FGICiIifleS, Report and
Order, WT Docket No. 13 -238, et. al., FCC 14 -153 (rel. Oct. 21, 2014), specifically stated
that Section 6409(a) applies only to state and local governments acting in their role as
land use regulators and does not apply to such entities acting in their proprietary
capacities. TOWN may contend, among other things, that Sections 6003 and 6409(a) are
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unconstitutional under the Commerce Clause, Fifth and Tenth Amendments to the U.S.
Constitution, do not apply to units of government acting in a proprietary capacity or if
applied to light standards in the public rights of way jeopardize the public health, safety
and welfare. The resolution of such contentions, which may not come to pass, is
premature. Nothing herein is intended to limit either Party's ability to assert the
validity or invalidity of the same.
SIGNATURE PAGE FOLLOWS
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IN WITNESS WHEREOF, the Parties have executed this Agreement as of the last
Party's signature date below.
"TOWN ":
THE TOWN OF MARANA,
an Arizona municipal corporation
""Lessee":
VERIZON WIRELESS (VAW) LLC, a
Delaware limited liability company,
d/ b/ a Verizon Wireless
Ed Honea
Mayor
Date
ATTEST:
Jocelyn Bronson, Town Clerk
APPROVED AS TO FORM:
Frank Cassidy, Town Attorney
STATE OF
County of
Clifton Casey
Executive Director - Network
Date
Federal I.D. #:
ss.
The foregoing instrument was acknowledged before me this day of , 2015
by ,the of VERIZON WIRELESS
(VAW) LLC, a Delaware limited liability company, d /b /a Verizon Wireless, on behalf
of the limited liability company.
(Seal)
Notary Public
OPTION AND WIRELESS COMMUNICATION FACILITY LEASE AGREEMENT: VERIZON/ HARTMAN VISTAS SITE
6/23/2015
23
LIST OF EXHIBITS
Exhibit A: Description of Property
Exhibit B: Map of the Site and Access Routes
Exhibit C: Site Plan
Exhibit D: Form of Memorandum of Agreement
OPTION AND WIRELESS COMMUNICATION FACILITY LEASE AGREEMENT: VERIZON/ HARTMAN VISTAS SITE 6/23/2015
24
EXHIBIT A
DESCRIPTION OF PROPERTY
BLOCK II, OF HARTMAN VISTAS ACCORDING TO THE PLAT OF RECORD IN THE
OFFICE OF THE COUNTY RECORDER OF PIMA COUNTY, ARIZONA, RECORDED
IN BOOK 55 OF MAPS AND PLATS, PAGE 42.
OPTION AND WIRELESS COMMUNICATION FACILITY LEASE AGREEMENT: VERIZON/ HARTMAN VISTAS SITE 6/23/2015
25
EXHIBIT B
MAP OF THE SITE AND ACCESS ROUTES (PREMISES)
The Site is described and /or depicted as follows (metes and bounds description):
APN: 221 -06 -4010
The Premises are described and /or depicted as follows:
SEE ATTACHED
Notes:
1. Lessee may replace this Exhibit with a survey of the Premises once Lessee receives it.
2. Lessee Facilities shall comply with setback requirements of TOWN and any other
applicable governmental authorities.
3. The access road's width will be the width required by TOWN, including police
and fire departments.
4. The locations of any utility easements are illustrative only. The actual locations will
be determined by the servicing utility company in compliance with all local laws
and regulations.
OPTION AND WIRELESS COMMUNICATION FACILITY LEASE AGREEMENT: VERIZON/ HARTMAN VISTAS SITE 6/23/2015
26
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REFER TO SITE SURVEY FOR
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AND CURVE TABLES
LINDA VISTA BLVD.
EXISTING ELECTRICAL
VAULT EXISTING DIRT ROAD \ \T \\
FO FO F E '\
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APPROX. U.G. UTILITIES CONTRACTOR
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UTILITY EAESMENT
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LEASE 30' -0" EXISTING I I I I ® VALVES I
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APN: 221 -06 -4010
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APN: 221 -06 -3980
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1 SITE PLAN
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/ APN: 221 -06 -3980
/ ZONING: UNKNOWN
LEASE AREA SETBACK TO
NEAREST PROPERTY LINE.
DIRECTION
DISTANCE
NORTH
±75' -3"
SOUTH
±105' -11"
EAST
±242' -4"
WEST
±51'-l*
MONOPOLE SETBACK TO
NEAREST PROPERTY LINE.
DIRECTION
DISTANCE
NORTH
±81' -11"
SOUTH
±134' -10"
EAST
±266' -2"
WEST
±58' -9"
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USE OF OUR CLIENT . ANY
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0 ISSUE FOR
SITE NAME
TUC BLUE
BONNET
SITE ADDRESS
W. LINDA VISTA BLVD.
TUCSON, AZ 85742
SHEET TITLE
SITE PLAN
SHEET NUMBER
Z m 1
EXHIBIT C
SITE PLAN
SEE ATTACHED
OPTION AND WIRELESS COMMUNICATION FACILITY LEASE AGREEMENT: VERIZON/ HARTMAN VISTAS SITE 6/23/2015
27
PROPOSED LESSEE
TO BE MOUNTED 1
ANTENNA MOUNT f
(4) PER SECTOR
(3) SECTORS
PROPOSED LESSEE
MONOPALM
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MOUNT ARM, TYP. 0
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RADIO HEAD, TO BE
TO PROPOSED ANTS
MOUNT PIPE
(4) PER SECTOR
(3) SECTORS
m1
PROPOSED LESSEE J -BOX
(TYP. OF 2) MOUNTED TO
STANDOFF ARM NEAR CABLE
ROUTE. CONTRACTOR TO FIELD
VERIFY EXACT LOCATION
6' -10"
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OUNTED TO PROPOSED
ONOPALM - SEE ENLARGED
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SITE NAME
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EXHIBIT D
WHEN RECORDED
RETURN TO:
MCGUIRE WOODS LLP
1800 CENTURY PARK EAST
8TH FLOOR
LOS ANGELES, CA 90067
ATTN: SARAH I. KIM
SITE: TUC BLUE BONNET
MEMORANDUM OF AGREEMENT
APN: 221 -06 -4010
This MEMORANDUM OF AGREEMENT is entered into by and between the Town of
Marana, Arizona, an Arizona municipal corporation, with an address of 11555 W. Civic
Center Drive, Marana, Arizona 85653 (hereinafter referred to as "TOWN ") and Verizon
Wireless (VAW) LLC, a Delaware limited liability company, d/ b/ a Verizon Wireless,
with an address at One Verizon Way, Mail Stop 4AW100, Basking Ridge, New Jersey
07920 (hereinafter referred to as "Lessee ").
1. TOWN and Lessee entered into an Option and Wireless
Communications Site Lease Agreement (""Agreement") effective ,
20 (""Effective Date").
2. The Agreement relates to a certain Site owned by TOWN described
as set forth in Exhibit A and necessary access and utility easements (collectively
referred to hereafter as the "Premises ") as set forth in Exhibit B. attached hereto and
incorporated by reference.
3. The Agreement allows Lessee to conduct investigations and tests to
determine if the Premises are appropriate for installing, operating and maintaining a
wireless communications facility and other improvements during a specified Due
Diligence Period.
OPTION AND WIRELESS COMMUNICATION FACILITY LEASE AGREEMENT: VERIZON/ HARTMAN VISTAS SITE 6/23/2015
Imo[
•
4. The Agreement allows Lessee to exercise an option to lease the
Premises for a five -year term upon written notice to TOWN, with a provision for
renewal for up to five additional five -year terms.
5. This Memorandum of Agreement is solely for purposes of
memorializing the Agreement and shall not serve to change or alter any terms or
conditions of the Agreement.
IN WITNESS WHEREOF, the parties have executed this Memorandum of
Agreement as of the day and year stated below.
TOWN:
Town of Marana, an Arizona municipal
corporation
By: EXHIBIT ONLY - DO NOT
EXECUTE
Name:
Title:
Date:
LESSEE:
Verizon Wireless (VAW) LLC, a Delaware
limited liability company, d /b /a Verizon
Wireless
By: EXHIBIT ONLY - DO NOT
EXECUTE
Nam
e:
Title:
Date:
OPTION AND WIRELESS COMMUNICATION FACILITY LEASE AGREEMENT: VERIZON/ HARTMAN VISTAS SITE
6/23/2015
29
ATTACH EXHIBITS
OPTION AND WIRELESS COMMUNICATION FACILITY LEASE AGREEMENT: VERIZON/ HARTMAN VISTAS SITE 6/23/2015
30