DEPARTMENT Real Estate Services Division AGENDA NO. 11a MEETING DATE June 28, 2022
APPROVAL:
COMMISSION
SECRETARY
Donna Hood
AGENDA ITEM
Public Utilities Commission
City and County of San Francisco
Real Estate Lease: Consent Calendar
Real Estate Director: Rosanna Russell
Approve an Eight-Year Lease to Pinnacles Cellular, Inc. , doing business as VERIZON WIRELESS for use of portions of SFPUC Parcels No. 271 and 272 in Moccasin, California
Summary of
Proposed
Commission Action:
Approve the terms and conditions and authorize the General Manager to execute an eight-year communications lease (Lease) with Pinnacles Cellular, Inc. doing business as Verizon Wireless, a Delaware corporation (Tenant), to use approximately 500 square feet of portions of SFPUC Parcel Nos. 271 and 272 on the shaft and at the base of the SFPUC’s Moccasin Surge Tank in Moccasin, California (Premises) for the installation, modification, repair, and operation of radio communicat ions antenna facilities and other equipment at an annual rent of $7,800 for the first lease year. The rent is subject to four - percent annual increases. This action constitutes the Approval Action for the project for the purposes of the California Environm ental Quality A ct (CEQA) pursuant to Section 31.04(h) of the San Francisco Administrative Code. The Planning Department has determined that this action is exempt from the CEQA. If the item is approved, the Commission will rely on that determination to make its decision.
Background: The City and County of San F rancisco (City), under the juri sdiction of its Public Utilities Commission (SFPUC), owns the Premises in fee. The Premises constitute s a portion of the SFPUC Hetch Hetchy right -of-way lands.
The Lease will replace an expired lease for the Premises. In 2008, the City, through the SFPUC , issued a five-year lease to California RSA No. 3 Limited Partnership doing business as Golden State Cellular (Golden State Cellular) (2008 Lease) , pursuant to SF PUC Resolution No. 07-0169. The 2008 L ease expir ed in 2013 and is in month- to-month holdover status.
Tenant acquired Golden State Cellular ’s radio communications antenna facilities and other equipment (Existing Facilities) on the Premises as part of Tenant’s larger communications tower portfolio acquisitio n in 2014. Tenant is Golden Stat e Cellular ’s successor in intere st as tenant under the 2008 Lease.
Agreement: Approve an Eight-Year Lease to Pinnacles Cellular, Inc. dba Verizon Wireless Commission Meeting Date: June 28, 2022
Tenant seeks to enter into the Lease to improve the Existing Fac ilities, construct new facilities on the Premises, and operate the Existing Facilities and new facilities on the Premises.
Tenant will pay $7,800 in annual rent during the first lease yea r. Beginning in the second lease year, t he rent will increase annually by four percent. The rent for use of the P remises is set at fair market value in accordance with the 2015 SFPUC Real Estate Guidelines, adopted by SFPUC Resolution No. 15- 0013.
Environmental
Review:
On November 10, 2016, the San Francisco Planning Department determine d the project to be c ategorically exempt from environmental review under CEQA Guidelines Section 15301, Class 1 (E xisting Facilities) ( Case N o. 2016-014656ENV). This action co nstitutes the Approval Action for the project for the purposes of CEQA pursuant to Section 31.04(h) of the San Francisco Administrative Code.
The exemption can be found here:
https://sfpuc.sharefile.com/d-s9fee039e6edd4712b245a87b95fda550
Result of Inaction: A delay in adopting the attached resolution will delay Tenant entering into a new lease with City on the updated communications lease form with updated insurance and indemnification provisions.
Budget & Costs: Tenant will pay all costs as sociated with its use of the Premises, including property and possessory interest taxes.
Description of
Agreement:
Parties to Lease: City and Coun ty of San Francisco, act ing through the SFPUC, and Pinnacles Cellular,
Inc. doing business as V erizon W ireless, a
Delaware corporation.
Annual Rent: $7,800 for the first year of the Lease, subject to four-percent annual rental increases.
Purpose: The installation, modification, repair, and
operation of antenna facilities and other
equipment for the transmission and reception of
radio communications signals on the Premises.
Location: Approximately 500 square feet of SFPUC
Parcel Nos. 271 and 272 at the base of and on
the SFPUC’s Moc casin Surge Tank in
Moccasin, California.
Commencement Date: The date on which the Lease is executed and delivered by City following SFPUC
authorization and approval.
Recommendation: SFPUC staff recommen ds that the Commission adopt the at tached resolution.
PUBLIC UTILITIES COMMISSION
City and County of San Francisco
RESOLUTION NO.
WHEREAS, The City and County of San Francisco (City) owns certain real property under the jurisdiction of the San Fran cisco Public Utilities Commission (SFPUC) designated as SFPUC Parcel Nos. 271 and 272 at the base of and on th e Moccasin Surge Tank in Moccasin, California. (Premises); and
WHEREAS, In 2008, the City, through the SFPUC, issued a five-year lease to California RSA No. 3 Limited Partnership doing business as Golden State Cellular (Golden State Cellular) (2008 Lease) pursuant to SFPUC Resolution No. 07-0169. The 2008 Lease expired in 2013 and is in month-to-month holdover; and
WHEREAS, Pinnacles Cellular, Inc. doing business as V erizon Wireless, a Delaware corporation (Tenant), acquired Golden State Cellular ’s radio communications antenna facilities and other equipment (Existing Facilities) on the Premises as a part of a larger communication s tower portfolio acquisition in 2014; and
WHEREAS, Tenant seeks to enter into a new lease (L ease) to improve the Existing Facilities, construct new fac ilities on the Premises, and operate the Existing Facilities and new facilities on the Premises at a rent of $ 7,800 for the first lease year . The rent is subject to four - percent annual increases; and
WHEREAS, The SFPUC desires to enter into the Lease; and WHEREAS, On November 10, 2016, the San Francisco Planning Department determined the project to be categorically exempt from environmental review under California Environmental Quality A ct (CEQA) Guidelines Section 15301, Class 1 (E xisting Facilities) (Case No. 2016-014656ENV); and
WHEREAS, This action constitutes the Approval Action for the project for the purposes of CEQA pursuant t o Section 31.04(h) of the San Francisco Administrative Code ; now, therefore, be it
FURTHER RESOLVED, That this Commission hereby ratifies, approves and authorizes all actions heretofore taken by any City official in connection with this Lease; and, be it FURTHER RESOLVED, That t his Commission hereby approves the terms and conditions of this Lease; and, be it
FURTHER RESOLVED, That this Commis sion hereby a uthorizes and directs t he SFPUC General Manager to execute the Lease; and, be it
FURTHER RESOLVED, That this Commission herby a uthorizes the SFPUC General Manager to enter into any amendments or modifications to this Lease, including without limitation, the exhibits , that the Gen eral Manager determines, i n consultation with the City Attorney, are in the best interest of the City; do not materially increase the obligations or liabilities of the City; are necessary or advisable to effectuate the purposes and intent of the Lease or t his resolution; and are in compliance with a ll applicable laws, including the City Charter.
I hereby certify that the foregoing resolution was adopted by the Public Utilities Commission at its meeting of June 28, 2022.
Secretary, Public Utilities Commission
Rev March 2016
Verizon Moccasin Surge Tank Cell Site Lease #L4338
SAN FRANCISCO PUBLIC UTILITIES COMMISSION
LONDON BREED, MAYOR
COMMUNICATIONS SITE LEASE
(SFPUC Lease No. L4338)
between
CITY AND COUNTY OF SAN FRANCISCO,
a municipal corporation,
as Landlord
and
PINNACLES CELLULAR, INC. doing business as VERIZON WIRELESS, a Delaware corporation,
as Tenant
for the lease of
a portion of the Surge Tank and property located in
Moccasin, California, County of Tuolumne
Assessor’s Parcel No. 057-220-002
_________________, 2022
S A N F R A N C I S C O P U B L I C U T I L I T I E S C O M M I S S I O N Anson B. Moran– President
Newsha K. Ajami – Vice President
Sophie Maxwell – Commissioner
Tim Paulson – Commissioner
Vacant– Commissioner
Dennis J. Herrera
General Manager of San Francisco Public Utilities Commission DocuSign Envelope ID: 1E15859B-B48E-4FA1-A4DD-76C711D4BDD2
Rev. March 2016 i
Verizon Moccasin Surge Tank Cell Site Lease #L4338
Table of Contents
Section Page
1. BASIC LEASE INFORMATION 1
2. PREMISES; ACCESSIBILITY DISCLOSURES; AS IS LEASE 4
2.1 Lease Premises ...................................................................................................4
2.2 License; Tenant’s Access to City’s Property ...................................................5
2.3 Rights Reserved to City .....................................................................................6
2.4 Subject to Municipal Uses .................................................................................7
2.5 Accessibility Disclosures ....................................................................................7
2.6 As-Is Lease ..........................................................................................................7
3. TERM 8
3.1 Term of Lease .....................................................................................................8
3.2 Commencement Date and Expiration Date .....................................................8
3.3 Possession ............................................................................................................8
3.4 Effective Date .....................................................................................................8
4. RENT; ADDITIONAL CHARGES 8
4.1 Base Rent ............................................................................................................8
4.2 Annual Adjustments in Base Rent....................................................................9
4.3 Additional Charges ............................................................................................9
4.4 Late Charges.......................................................................................................9
4.5 Default Interest...................................................................................................9
4.6 Net Lease .............................................................................................................9
4.7 Processing Fee ....................................................................................................10
4.8 Taxes and Assessments ......................................................................................10
5. USE
11 5.1 Permitted Use .....................................................................................................11
5.2 Covenants Regarding Use .................................................................................11
5.3 Periodic Review ..................................................................................................14
6. TENANT’S FACILITIES 14
7. ALTERATIONS 15
7.1 Tenant’s Alterations ..........................................................................................15
7.2 Title to and Removal of Tenant’s Facilities and Alterations .........................17
7.3 Tenant’s Personal Property ..............................................................................17
7.4 Waiver of Landlord Lien ..................................................................................18
8. CITY’S ALTERATIONS OF THE PROPERTY AND UTILITY NETWORK 18
9. MAINTENANCE AND REPAIRS 18
DocuSign Envelope ID: 1E15859B-B48E-4FA1-A4DD-76C711D4BDD2
Rev. March 2016 ii
Verizon Moccasin Surge Tank Cell Site Lease #L4338
9.1 Tenant’s Responsibility for Maintenance and Repair ....................................18
9.2 P roject Review and Access Requirements .......................................................19
9.3 No Right to Repair and Deduct ........................................................................19
10. LIENS 19
11. UTILITIES AND SERVICES 20
11.1 Utilities and Services ..........................................................................................20
11.2 Mandatory or Voluntary Restrictions .............................................................21
12. COMPLIANCE WITH LAWS AND RISK MANAGEMENT REQUIREMENTS 21
12.1 Compliance with Laws ......................................................................................21
12.2 Licenses and Approvals .....................................................................................22
12.3 Radiofrequency Radiation and Electromagnetic Fields .................................22
12.4 Compliance with City’s Risk Management Requirements ............................22
13. SUBORDINATION 23
14. DAMAGE OR DESTRUCTION 23
15. CONSTRUCTION PROJECTS 24
16. EMINENT DOMAIN 24
16.1 Eminent Domain ................................................................................................24
16.2 Temporary Takings ...........................................................................................25
17. ASSIGNMENT AND SUBLETTING; CO-LOCATION 25
17.1 Restriction on Assignment and Subletting ......................................................25
17.2 Notice of Proposed Transfer .............................................................................26
17.3 City’s Response ..................................................................................................26
17.4 Effect of Sublease or Assignment .....................................................................26
17.5 Assumption by Transferee ................................................................................26
17.6 Permitted Assignment .......................................................................................27
17.7 Co-location ..........................................................................................................27
17.8 IPM Plan and Form CMD-12B-101 .................................................................28
18. DEFAULT 28
18.1 Events of Default ................................................................................................28
18.2 Remedies .............................................................................................................29
18.3 Special Administrative Charges .......................................................................30
18.4 City’s Right to Cure Tenant’s Defaults ...........................................................31
19. TENANT’S INDEMNITY 31
20. INSURANCE 32
20.1 Tenant’s Insurance ............................................................................................32
20.2 General Requirements .......................................................................................33
20.3 Proof of Insurance; Failure to Provide ............................................................34 DocuSign Envelope ID: 1E15859B-B48E-4FA1-A4DD-76C711D4BDD2
Rev. March 2016 iii
Verizon Moccasin Surge Tank Cell Site Lease #L4338
20.4 Lapsed Coverage ................................................................................................35
20.5 Review of Insurance Requirements ..................................................................35
20.6 No Limitation on Lease Obligations or Liability ............................................35
20.7 Tenant’s Property ..............................................................................................35
20.8 City’s Self Insurance ..........................................................................................35
20.9 Waiver of Subrogation ......................................................................................35
21. LIMITATION OF CITY’S LIABILITY 36
21.1 Limitation of City’s Liability ............................................................................36
21.2 Consequential Damages.....................................................................................36
21.3 No Relocation Assistance ...................................................................................36
22. CITY’S ACCESS TO PREMISES 37
22.1 City’s Access to the Premises ............................................................................37
22.2 Pipeline and Utility Installations ......................................................................38
22.3 Roadways ............................................................................................................38
23. TENANT’S ESTOPPEL CERTIFICATES 38
24. RULES AND REGULATIONS 38
25. SECURITY DEPOSIT 39
26. SURRENDER OF PREMISES 39
26.1 Surrender Plan ...................................................................................................39
26.2 Surrender ............................................................................................................39
26.3 Quitclaim Deed ...................................................................................................40
27. HAZARDOUS MATERIALS 40
27.1 Definitions ...........................................................................................................40
27.2 No Hazardous Material in Premises ................................................................41
27.3 Tenant’s Environmental Indemnity .................................................................41
28. SPECIAL PROVISIONS 42
28.1 Protection of Tenant Against Interference ......................................................42
28.2 Protection Against Tenant’s Interference .......................................................42
29. GENERAL PROVISIONS 43
29.1 Notices .................................................................................................................43
29.2 No Implied Waiver .............................................................................................43
29.3 Amendments .......................................................................................................43
29.4 A
uthority .............................................................................................................43
29.5 Interpretation of Lease ......................................................................................44
29.6 City Consents, Approvals, Elections and Options ..........................................44
29.7 Successors and Assigns ......................................................................................44
29.8 Brokers ................................................................................................................44 DocuSign Envelope ID: 1E15859B-B48E-4FA1-A4DD-76C711D4BDD2
Rev. March 2016 iv
Verizon Moccasin Surge Tank Cell Site Lease #L4338
29.9 Severability .........................................................................................................45
29.10 Governing Law ...................................................................................................45
29.11 Entire Agreement ...............................................................................................45
29.12 Attorneys’ Fees ...................................................................................................45
29.13 Holding Over ......................................................................................................46
29.14 Time of Essence ..................................................................................................46
29.15 Cumulative Remedies ........................................................................................46
29.16 Survival of Indemnities......................................................................................46
29.17 Signs ....................................................................................................................46
29.18 Relationship of the Parties ................................................................................47
29.19 Light and Air ......................................................................................................47
29.20 Recording ............................................................................................................47
29.21 Non-Liability of City Officials, Employees and Agents ..................................47
29.22 Wages and Working Conditions .......................................................................47
29.23 Non-Discrimination in City Contracts and Benefits Ordinance ...................48
29.24 Requiring Health Benefits for Covered Employees ........................................49
29.25 Notification of Limitations on Contributions ..................................................50
29.26 Reserved ..............................................................................................................51
29.27 MacBride Principles – Northern Ireland .........................................................51
29.28 Conflicts of Interest ............................................................................................51
29.29 Drug-Free Workplace ........................................................................................51
29.30 Tropical Hardwood and Virgin Redwood Ban ...............................................51
29.31 Prohibition of Tobacco Sales and Advertising ................................................51
29.32 Prohibition of Alcoholic Beverage Advertising ...............................................51
29.33 Sunshine Ordinance; Public Records Law ......................................................52
29.34 Food Waste Reduction Ordinance ...................................................................52
29.35 Bottled Drinking Water .....................................................................................52
29.36 Criminal History in Hiring and Employment Decisions ................................52
29.37 Local Hiring Policy for Tenant’s Facilities and Alterations ..........................53
29.38 Cooperative Drafting .........................................................................................54
29.39 Co
unterparts ......................................................................................................54
LIST OF EXHIBITS
Exhibit A Aerial View of City’s Property
Exhibit B Description of Premises
Exhibit C Approved Plans
Exhibit C-1 Tenant’s Existing Facilities
DocuSign Envelope ID: 1E15859B-B48E-4FA1-A4DD-76C711D4BDD2
Rev. March 2016 v
Verizon Moccasin Surge Tank Cell Site Lease #L4338
Exhibit D Confirmation of Commencement Date
Exhibit E Intentionally Omitted
Exhibit F Intentionally Omitted
Exhibit G Rules and Regulations
Exhibit H List of Existing Co-location Parties and Equipment
DocuSign Envelope ID: 1E15859B-B48E-4FA1-A4DD-76C711D4BDD2
Rev. March 2016 1
Verizon Moccasin Surge Tank Cell Site Lease #L4338
SAN FRANCISCO PUBLIC UTILITIES COMMISSION
COMMUNICATIONS SITE LEASE
THIS COMMUNICATIONS SITE LEASE (this “ Lease”) dated for reference purposes only as of _________________, 2022, is made between the CITY AND COUNTY OF SAN FRANCISCO, a municipal corporation (“ City” or “ Landlord”), acting by and through its Public Utilities Commission ( the “ SFPUC”), and PINNACLES CELLULAR, INC. doing business as VERIZON WIRELESS, a Delaware corporation (“Tenant”). City and Tenant sometimes collectively are referred to in this Lease as the “Parties” or singularly as a “Party.” City and Tenant agree as follows:
1. BASIC LEASE INFORMATION
The following is a summary of basic lease information (the “Basic Lease Information”).
Each item below shall be deemed to incorporate all of the terms set forth in this Lease pertaining to such item. In the event of any conflict between the information in this Section and any more specific provision of this Lease, the more specific provision shall control.
Lease Reference Date: __________________, 2022
Landlord: City and County of San Francisco, acting through its Public Utilities Commission
Tenant: Pinnacles Cellular, Inc., doing business as Verizon Wireless
Property (Section 2.1): That portion of Assessor’s Parcel No. 057-220-002 (more commonly known as SFPUC Parcel Nos. 271-
272), in Moccasin, California, Tuolumne County, as
described in and/or shown on attached Exhibit A
attached to this Lease, and all appur tenances and
improvements attached to such property (the
“Property”). The Property is under the jurisdiction
of the City’s SFPUC.
Premises (Section 2.1): The portion of the Property, consisting of approximately f ive hundred (500) square feet of
space located on the shaft and at the base of the
SFPUC Surge Tank, all as described in Exhibit B
attached to this Lease (the “Premises”).
License (Section 2.2): In connection with the lease of the Premises and for the Term of the Lease, Tenant shall have a
nonexclusive and nonpossessory license (the
“License”) for (i) the placement and use of outdoor
equipment and a concrete pad in the locations and
manner shown on the approved plans and
specifications (the “ Approved Plans”) attached as
Exhibit C and as otherwise mutually agreed in
DocuSign Envelope ID: 1E15859B-B48E-4FA1-A4DD-76C711D4BDD2
Rev. March 2016 2
Verizon Moccasin Surge Tank Cell Site Lease #L4338
writing between City and Tenant ; (ii) vehicular
access, ingress and egress on developed roads and
accessways to the Premises on the Property ; and
(iii) pedestrian access within the Property to and
from the Premises , all as shown on the Approved
Plans (collectively, the “License Area”).
Term (Section 3.1): Eight (8) years.
Commencement Date: _________________, 2022
Expiration Date: __________________, 2030
Base Rent (Section 4.1):
Lease
Year
Annual
Base Rent
Monthly
Base Rent
1 $7,800.00 $650.00
2 $8,112.00 $676.00
3 $8,436.48 $703.04
4 $8,773.94 $731.16
5 $9,124.90 $760.41
6 $9,489.96 $790.83
7 $9,869.52 $822.46
8 $10,264.32 $855.36
Processing Fee (Section 4.7): $5,000
Adjustment Dates (Section 4.2): Each of the following is an “ Adjustment Date”: (i) the first day of the second Lease Year, (ii) the first day of each subsequent Lease Year, (iii) the first day
that Tenant Holds Over (as defined in Section 29.13
(Holding Over)), and any yearly anniversary thereof
during the Holdover Period (as defined in Section
29.13), and, (iv) at City’s election, the effective date of a Transfer (as defined in Section 17.1
(Restrictions on Assignment and Subletting)).
The term “ Lease Year” means each twelve (12) -
month period following the Commencement Date,
except that (i) if the Commencement Date occurs on
a day other than the first day of a calendar month, the First Lease Year shall begin on the Commencement
Date and end on the last day of the twelfth (12th) full calendar month thereafter, and (ii) the final Lease
Year shall end on the day this Lease expires or
terminates, even if less than twelve (12) full months.
Security Deposit (Section 25): Three (3) months’ rent, or $1,950.00, less a $1,000 deposit currently held, for a net additional deposit
required of $950.
DocuSign Envelope ID: 1E15859B-B48E-4FA1-A4DD-76C711D4BDD2
Rev. March 2016 3
Verizon Moccasin Surge Tank Cell Site Lease #L4338
Use (Section 5.1): Installation, modification, maintenance, repair, and operation of the City-approved Tenant’s Facilities
(as defined in Section 6 (Tenant’s Facilities)) within
the Premises and the License Area, as one of
Tenant’s wireless communications sites (a
“Communications Site”), for Tenant’s transmission
and reception of radio communication signals, such
transmission and reception to be solely for the
frequencies licensed to Tenant by the FCC, as further
described in Section 5.1 (Permitted Use).
Tenant’s Existing Facilities (Section 6): Tenant’s existing telecommunications equipment, as shown and described in attached Exhibit C -1
(“Tenant’s Existing Facilities”).
Tenant’s Initial Alterations (Section 6): Tenant’s initial alterations as shown and described in attached Exhibit C (“Approved Plans”).
Utilities and Services (Section 11.1): All electricity necessary for the operation of the Premises shall be provided by the SFPUC in
accordance with Section 11.1. All other utilities and
services (including gas, water, sewer, telephone
service, trash collection, and janitorial service)
necessary for use of the Communications Site as
permitted by this Lease shall be obtained by Tenant
at its sole cost directly from the service provider, and in accordance with Section 11.1.
Notice Addresses of City
(Section 29.1): San Francisco Public Utilities Commission Real Estate Services Division
525 Golden Gate Avenue, 10
th Floor
San Francisco, California 94102
Attn.: Real Estate Director
Re: Lease No. L4338
with a copy to: Office of the City Attorney
City and County of San Francisco
Room 234, City Hall
1 Dr. Carlton B. Goodlett Place
San Francisco, California 94102-4682
Attn: Real Estate/Finance Team
Re: SFPUC Lease No. L4338
and to:
Communications and Systems Controls
Maintenance Manager
Hetch Hetchy Water and Power
PO Box 160
Moccasin, California 95347
DocuSign Envelope ID: 1E15859B-B48E-4FA1-A4DD-76C711D4BDD2
Rev. March 2016 4
Verizon Moccasin Surge Tank Cell Site Lease #L4338
City’s Key Contact: SFPUC Real Estate Director
Telephone No.: (415) 487-5210
City’s Access Contact (i.e., Landlord’s
key contact for access and maintenance
purposes) (See advance notice
requirements in Section 2.2):
Todd Cox
Assistant Electronic Maintenance Supervisor
(209) 989-2166 Office
(209) 324-8099 Cell
(209) 989-2881 After Hours/On-Call
City’s Emergency Contact
(Section 2.2(b)): Moccasin Powerhouse at (209) 989-2199 Notice Address for Tenant (Tenant to
notify City of any changes, in
accordance with Section 29.1): Verizon Wireless
180 Washington Valley Road
Bedminster, New Jersey 07921
Attn: Network Real Estate
Key Contact for Tenant:
VZW.NET.NORCAL.PROP.
MGMT@verizonwireless.
com
Emergency Contact for Tenant: Network Operations Center Telephone No.: (888) 524-6734
and
[email protected]
om
Brokers (Section 29.8): None
2. PREMISES; ACCESSIBILITY DISCLOSURES; AS IS LEASE
2.1 Lease Premises
Subject to the terms, covenants and conditions of this Lease, City leases to Tenant and Tenant leases from City, the Premises described in Section 1 (Basic Lease Information), excluding therefrom and reserving unto City, its successors and assigns, during the Term the rights described in Section 2.3 (Rights Reserved to City) below. The Premises are located within the Property described in Section 1 . As used herein, “ City’s Facilities” means any and all water and wastewater pipelines, vaults, wells, hatch covers, appurtenances and facilities; drainage pipelines; power poles, towers, cables, conduits, wires, and appurtenances; communications antennas, equipment and cables; and other overhead, surface and subsurface utility facilities owned by the City and now or later located in, under, on or about the Property for City’ s collection, storage, transportation or distribution of water, power, or wastewater and/or transmission or reception o f DocuSign Envelope ID: 1E15859B-B48E-4FA1-A4DD-76C711D4BDD2
Rev. March 2016 5
Verizon Moccasin Surge Tank Cell Site Lease #L4338
communications signals, for municipal purposes, together with all appurtenances thereto and all monuments thereof. The Property (as defined in Section 1 (Basic Lease Information)) and the Premises are shown generally on attached Exhibits A-C. Nothing i n this Lease is intended to grant Tenant any right whatsoever to possess, use, or operate any City’s Facilities.
2.2 License; Tenant’s Access to City’s Property
(a) License. City hereby confers on Tenant for the t erm of this Lease, the License (as defined in Section 1 (Basic Lease Information)), to use the License Area and as it may be modified during the Term with prior written approval of City. The License Area may be used by Tenant only as set forth in Section 1 and this Section 2.2. The Parties intend that the License shall be coterminous with the Lease. Accordingly, termination or expiration of the Lease in accordance with the terms hereof shall effect termination of the License. City, in its sole discretion, may relocate the License Area with one hundred eighty (180) days’ notice to Tenant in nonemergency situations as determined by City at its sole discretion . Notwithstanding anything to the contrary contained herein, the License does not constitute a grant by City of any ownership, leasehold, easement or other property interest or estate whatsoever in any portion of the License Area.
The access rights included in the License are provided only for the purpose of installing, constructing, inspecting, maintaining, restoring, replacing, and operating Tenant’ s Facilities located within the Premises or the License Area in accordance with the terms of this Lease. (b) Tenant’s Access to the Property . Tenant’s access to the Property is subject to the following requirements:
(i) Required Notice to Moccasin Powerhouse. A t least forty -eight (48) hours prior to accessing the Property for any reason, Tenant, including Tenant’s Agents (as defined in Section 29.5), shall notify HHWP Assistant Electronic Maintenance Supervisor Todd Cox at (209) 989-2166 to arrange escort for access to the Property. During the period of operations related to any approved maintenance, repair, replacement or other construction, Tenant shall notify the SFPUC’s Moccasin Powerhouse non-emergency line daily when commencing and ending such activities on City’s Property. The SFPUC requires that Tenant’s and Tenant’s Agents’ vehicles be marked with a company logo when accessing the Property. (ii) Construction Schedule. At least ten (10) business days prior to the commencement of any permitted construction, maintenance, repair, or replacement on the Premises or License Area, Tenant shall notify the SFPUC’s Communications and Systems Controls Maintenance Manager (“Maintenance Manager”), currently at (209) 989-2033 of the date such work shall commence and the intended construction schedule. The Maintenance Manager may require Tenant to adjust such schedule from time to time. (iii) Additional Requirements for Work on Tenant’s Facilities . In addition, prior to any construction or installation of Tenant’s Facilities or Alterations, Tenant shall comply with the requirements of Sections 6 (Tenant’s Facilities) and 7 (Alterations). (iv) Emergency Access. Notwithstanding the foregoing notice requirements, if in Tenant’s reasonable judgment there is an emergency posing a threat to public health or safety or imminent injury to persons or damage to property, Tenant may conduct maintenance or take other action needed to prevent or minimize a threat to public health or safety or imminent damage to property. In such instance, Tenant shall contact City’s emergency contact specified in Section 1 (Basic Lease Information) before commencing the work, and shall provide DocuSign Envelope ID: 1E15859B-B48E-4FA1-A4DD-76C711D4BDD2
Rev. March 2016 6
Verizon Moccasin Surge Tank Cell Site Lease #L4338
written notice to City describing the emergency actions as soon as reasonably practical thereafter (which may be after the emergency work is completed).
2.3 Rights Reserved to City
City and Tenant acknowledge that this Lea se is intended to create only a leasehold in the Premises and a license to use the License Area. Nothing in this Lease shall be construed to confer on Tenant an easement or other permanent interest in the Property or any part thereof.
Notwithstanding anything to the contrary in this Lease, during the Term, City reserves and retains all of the following rights relating to the Property and the Premises:
(a) Any and all water and water rights, including (i) any and all surface water and surface water rights, including riparian rights and appropriative water rights to surface streams and the underflow of streams, and (ii) any and all groundwater and subterranean water rights, including the right to export percolating groundwater for use by City or its water customers; (b) Any and all timber and timber rights, including all standing trees and downed timber;
(c) Any and all minerals and mineral rights of every kind and character now known to exist or hereafter discovered on the Property, including oil and gas rights thereto, together with the sole, exclusive, and perpetual right to explore for, remove, and dispose of those minerals by any means or methods suitable to City or its successors and assigns, but without entering upon or using the surface of the lands of the Premises and in such manner as not to damage the surface of the Premises or to interfere with the permitted use thereof by Tenant, w ithout Tenant’s prior written consent;
(d) All rights to use, operate, maintain, repair, enlarge, modify, expand, replace and reconstruct the City’s Facilities;
(e) The right to grant future leases, permits, licenses, easements and rights -of- way over, across, under, in and upon the Property, provided that any such easement or right -of- way shall be conditioned upon the grantee’s assumption of liability to Tenant for damage to its property that Tenant may sustain hereunder as a result of the grantee’s use of such easement or right-of-way;
(f) Without limiting the generality of subsection (e) above, the right to grant future easements, leases, rights -of-way, permits and/or licenses over, across, under, in and upon the Property for the installation, operation, maintenance, repair and removal of (i) equipment for furnishing wireless telephone, radio or other telecommunications services, including, antennas, radio, devices, cables and other equipment associated with a personal wireless service facility site, and (ii) commercial billboards, signs and/or advertising kiosks, provided that (A) any such lease, permit, license, easement or right -of-way shall not materially interfere with Tenant ’s normal use of the Premises as permitted by this Lease and (B) the grant of any such easement, lease, permit, license or right-of-way shall be conditioned upon the grantee’s written agreement with City not to materially interfere with the Tenant’s use of the Premises set forth in Section 5.1 (Permitted Use); and
(g) All rights of access provided for in Section 22.1 (City’s Access to the Premises) below.
DocuSign Envelope ID: 1E15859B-B48E-4FA1-A4DD-76C711D4BDD2
Rev. March 2016 7
Verizon Moccasin Surge Tank Cell Site Lease #L4338
2.4 Subject to Municipal Uses
Tenant acknowledges that the property of which the Premises are a part contains improvements and facilities that are essential to the SFPUC’s water, power, and/or wastewater systems. Tenant’s rights under this Lease shall be subject to City’s use of the Premises for such municipal utility purposes and for other City uses. However, so long as there is no Event of Default or Unmatured Event of Default on the part of Tenant outstanding hereunder and no pending the SFPUC infrastructure project, then subject to the terms and conditions of this Lease, City shall use reasonable efforts to avoid interfering with Tenant’s quiet use and enjoyment of the Premises. City shall not be liable for any damage to or destruction of Tenant’ s Facilities, personal property or Alterations resulting from any pipeline break or other malfunction of City’s Facilities or from any repair or maintenance activities with respect to City’s Facilities, except to the extent caused by City’s gross negligence or willful misconduct. The use of the term “right -of-way” in this document sha ll not be deemed to imply that City holds less than fee title to the Premises or otherwise call into question the nature of City’s title to any of its property. As used herein the term “Event of Default” means any of events of default described in Section 18.1 and the term “Unmatured Event of Default” means any default by Tenant under this Lease that, with the giving of notice or the passage of time, or both, would constitute an Event of Default hereunder.
2.5 Accessibility Disclosures
California Civil Code Se ction 1938 requires commercial landlords to disclose to tenants whether the property being leased has undergone inspection by a Certified Access Specialist (“CASp”) to determine whether the property meets all applicable construction-related accessibility requirements. The law does not require landlords to have the inspections performed. Tenant is hereby advised that the Premises have not been inspected by a CASp.
2.6 As-Is Lease
(a) Inspection of Premises
Tenant represents and warrants that Tenant has conducted a thorough and diligent inspection and investigation, either independently or through Agents of Tenant’ s own choosing, of the Premises and the suitability of the Premises for Tenant’s intended use. Tenant is fully aware of the needs of its operations and has determined, based solely on its own investigation, that the Premises are suitable for its operations and intended uses. (b) As Is; Disclaimer of Representations
Tenant acknowledges and agrees that the Premises are being leased and accepted strictly in their “AS IS, WITH ALL FAULTS” condition, without representation or warranty of any kind, and subject to all applicable Laws governing the use, occupancy, management, operation and possession of the Premises. Without limiting the foregoing, this Lease is made subject to any and all covenants, conditions, restrictions, easements, and other title matters affecting any portion of the Premises, whether or not of record. Tenant acknowledges and agrees that neither City, the SFPUC, nor any of their Agents have made, and City hereby disclaims, any representations or warranties, express or implied, concerning: (i) title or survey matters affecting the Premises, (ii) the physical, geological, seismological, or environmental condition of the Premises, (iii) the quality, nature, or adequacy of any utilities serving the Premises, (iv) the present or future suitability of the Premises for Tenant’s business and intended uses, (v) the feasibility, cost, or legality of constructing any Alterations on the Premises if required for Tenant’s use and permitted DocuSign Envelope ID: 1E15859B-B48E-4FA1-A4DD-76C711D4BDD2
Rev. March 2016 8
Verizon Moccasin Surge Tank Cell Site Lease #L4338
under this Lease, or (vi) any other matter whatsoever relating to the Premises or their use, including any implied warranties of merchantability or fitness for a particular purpose.
3. TERM
3.1 Term of Lease
The Premises are leased for a term (the “ Term”) commencing on the date specified in Section 1 (Basic Lease Information) as the Commencement Date, subject to this Lease becoming effective pursuant to Section 3.4 (Effective Date).
3.2 Commencement Date and Expiration Date
The dates on which the Term commences and expires pursuant to this Lease are referred to respectively as the “Commencement Date” and the “Expiration Date.” At the request of either party, following the Commencement Date City and Tenant shall confirm the Commencement Date in writing, but failure to do so shall not affect the commencement of the Term. Such confirmation shall be substantially in the form of attached Exhibit D.
3.3 Possession
City and Tenant acknowledge that Tenant has possession of the Premises prior to the Commencement Date under that PCS Site Lease dated March 1, 2008 (the “ Original Lease”) between City and Tenant’s predecessor in interest, California RSA No. 3 Limited Partnership d/b/a Golden State Cellular. The Original Lease has expired, and Tenant remains in possession of the Premises with City’s consent under a month -to-month holdover tenancy. City and Tenant agree that the holdover tenancy under the Original Lease shall terminate effective upon commencement of the Lease Term, if not terminated sooner.
3.4 Effective Date
This Lease shall become effective on the date the Parties to this Lease have duly executed and delivered this Lease (the “Effective Date”).
4. RENT; ADDITIONAL CHARGES
4.1 Base Rent
Beginning on the Commencement Date, Tenant shall pay to City during the Term the annual Base Rent specified in the Basic Lease Information (the “Base Rent”) as the same may be increased pursuant to Section 4.2 (Adjustments in Base Rent). The Base Rent shall be payable in monthly installments on or before the first day of each month, in advance, at the San Francisco Public Utilities Commission, Customer Service Bureau, Attention: Real Estate Billing, 525 Golden Gate Avenue, 3
rd Floor, San Francisco, California 94102 (reference the SFPUC Lease No. L4338), or such other place as City may designate in writing. Tenant shall pay the Base Rent without any prior demand and without any deduction or setoff. If the Commencement Date occurs on a day other than the first day of a calendar month, or t he Lease expires or terminates on a day other than the last day of a calendar month, then the Base Rent for such fractional month shall be prorated based on a thirty (30) day month.
DocuSign Envelope ID: 1E15859B-B48E-4FA1-A4DD-76C711D4BDD2
Rev. March 2016 9
Verizon Moccasin Surge Tank Cell Site Lease #L4338
4.2 Periodic Adjustments in Base Rent
Effective as of each Adjustment Date, as defined in Section 1 (Basic Lease Information), the monthly Base Rent payable during the twelve (12) -month period commencing on such Adjustment Date shall be equal to one hundred four percent (104%) of the monthly Base Rent that was payable during the twelve (12) months immediately preceding such Adjustment Date (disregarding any temporary abatement of rent that may have been in effect during such preceding twelve (12)-month period). If the Base Rent for each Lease Year is separately specified in Section 1 (Basic Lease Information ), such specified Base Rent includes the rental adjustment for those Lease Years, subject to any adjustment that may be made upon a Transfer, as defined in Section
17.1 (Restriction on Assignment and Subletting). If a rental adjustment is made as of the date of a Transfer, such adjusted Base Rent shall remain in effect until the next Adjustment Date.
4.3 Additional Charges
Tenant shall promptly pay to City the amounts, if any, required under any other Section of this Lease, as additional rent (herein called “Additional Charges ”). Such Additional Charges shall be payable to City at the same place and in the same manner as the Base Rent is payable.
City shall have the same remedies for a default in the payment of any Additional Charges as for a default in the payment of Base Rent. As used in this Lease, the term “Rent” shall include the Base Rent and any Additional Charges.
4.4 Late Charges
If Tenant fails to pay any Rent within ten (10) days after the same is due and payable, such unpaid amount will be subject to a late payment charge equal to six percent (6%) of the unpaid amount in each instance. The late payment charge has been agreed upon by City and Tenant, after negotiation, as a reasonable estimate of the additional administrative costs and detriment that City will incur as a result of any such failure by Tenant, the actual costs thereof being extremely difficult if not impossible to determine .
The late payment charge constitutes liquidated damages to compensate City for its damages resulting from such failure to pay and Tenant shall promptly pay such charge to City together with such unpaid amount.
4.5 Default Interest
If any Rent is not paid within ten (10) days following the due date, such unpaid amount shall bear interest from the due date until paid at the rate of ten percent (10%) per year or, if a higher rate is legally permissible, at the highest rate an individual is permitted to charge under law.
However, interest shall not be payable on late charges incurred by Tenant nor on any amounts on which late charges are paid by Tenant to the extent such interest would cause the total interest to be in excess of that which an individual is lawfully permitted to charge. Payment of interest and late charges shall not excuse or cure any default by Tenant.
4.6 Net Lease
This Lease is intended by the Parties to be a “net lease.” Accordingly, Tenant shall pay to City the Base Rent, Additional Charges and any other payments hereunder free of any deductions of any kind, without prior demand and without abatement, counterclaim or setoff. Under no circumstances, whether now existing or hereafter arising, and whether or not beyond the present contemplation of the Parties, shall City be expected or required to make any payment of any kind whatsoever with respect to Tenant’s use or occupancy of the Premises, the License Area, this Lease or any permitted Alterations or installations of Tenant’s Facilities, except as may otherwise be DocuSign Envelope ID: 1E15859B-B48E-4FA1-A4DD-76C711D4BDD2
Rev. March 2016 10
Verizon Moccasin Surge Tank Cell Site Lease #L4338
expressly set forth in this Lease. Without limiting the foregoing, Tenant shall be solely responsible for paying each item of cost or expense of every kind and nature whatsoever, the payment of which is related to Tenant’s interests in the Premises, the License Area, and any of Tenant’s improvements, and related to Tenant’s use or occupancy of the Premises, License Area, any Alterations, or any portion thereof. Except as may be specifically and expressly provided otherwise in this Lease, no occurrence or situation arising during the Term, nor any present or future law, whether foreseen or unforeseen, and however extraordinary, shall relieve Tenant from its liability to pay all of the sums required by any of the provisions of this Lease, or shall otherwise relieve Tenant from any of its obligations under this Lease, or shall give Tenant any right to terminate this Lease in whole or in part. Tenant waives any rights now or hereafter conferred upon it by any existing or future law to terminate this Lease or to receive any abatement, diminution, reduction or suspension of payment of such sums, on account of any such occurrence or situation.
4.7 Processing Fee
Tenant has paid City the sum specified in the Basic Lease Information as a one- time, nonrefundable fee for processing this Lease. The Processing Fee includes and shall not require an additional payment for all fees and costs, including attorney’s fees and costs, incurred by City in seeking the approvals necessary to enter into this Lease, including completion of environmental reviews and review and approval of t his Lease by the Commissioners of the SFPUC, the San Francisco Board of Supervisors, and the Mayor of San Francisco, as applicable, within thirty (30) days following receipt of City’s invoice.
4.8 Taxes and Assessments
(a) Payment Responsibility
Tenant shall pay any and all real and personal property taxes, general and special assessments, excises, licenses, permit fees, and other charges and impositions of every description levied on or assessed against all or any part of the Premises, any Altera tions, Tenant’s Personal Property, the leasehold estate, any subleasehold estate, or Tenant’s use of the Premises, Tenant’ s Facilities, and/or any Alterations. Tenant shall make all such payments directly to the charging authority when due and payable and at least ten (10) days before delinquency, subject to Tenant’s right to contest the validity of such charge pursuant to Subsection (c) below. Upon City’s request, Tenant shall furnish to City, within ten (10) days after the date when any charges are due and payable, official receipts of the appropriate taxing authority or other evidence reasonably satisfactory to City, evidencing payment of such charges. With respect to real property taxes and assessments levied on or assessed against the Premises for which City receives the tax bill directly from the taxing authority, however, Tenant shall reimburse City for payment of such sums upon receipt of written notice for payment demand, which may be included in rent invoicing. (b) Taxability of Possessory Interest
Without limiting the foregoing, Tenant recognizes and agrees that this Lease may create a possessory interest subject to property taxation and in that event Tenant shall be required to pay the property taxes levied on such interest.
(c) No Liens
Tenant shall not allow or suffer a lien for any taxes payable by Tenant pursuant to this Lease to be imposed upon the Premises or upon any equipment or other property located on the Premises without promptly discharging the same. Tenant may have a reasonable opportunity to DocuSign Envelope ID: 1E15859B-B48E-4FA1-A4DD-76C711D4BDD2
Rev. March 2016 11
Verizon Moccasin Surge Tank Cell Site Lease #L4338
contest the validity of any such taxes provided Tenant, before commencement of any proceeding or contest, furnishes to City a surety bond issued by a surety company qualified to do business in California and acceptable to City’s Controller. The amount of such bond shall be equal to one hundred twenty-five percent (125%) of the amount of taxes in dispute and shall be in such form as approved by the City Attorney. The bond shall insure payment of any judgment that may be rendered should Tenant be unsuccessful in any such contest. Tenant shall Indemnify City, the other Indemnified Parties, and the Premises from and against any Claims arising out of any such proceeding or contest. The foregoing Indemnity shall not be limited by the amount of the bond. (d) Reporting Requirement
Tenant agrees to provide such information as City may request to enable City to comply with any tax reporting requirements applicable to this Lease, including any applicable reporting requirements under San Francisco Administrative Code Sections 23.38 and 23.39.
5. USE
5.1 Permitted Use
Tenant shall use the Premises solely for the installation, maintenance, repair, replacement, and operation of Tenant’s Facilities, as a Communications Site for Tenant’s transmission and reception of radio communication signals (such transmission and reception to be solely for the frequencies licensed to Tenant by the Federal Communications Commission (“FCC”)). Tenant’s permitted use of the Premises and License Area shall be limited solely to that enumerated in this Lease, and no person or entity other than Tenant shall have the right to install, maintain or operate its equipment or transmit or receive communications at, or otherwise use, the Premises or License Area during the term of this Lease, without the express consent of City as provided in Section 17 (Assignment and Subletting; Co-Location).
5.2 Covenants Regarding Use
As a material inducement to City to enter into this Lease, Tenant covenants with City as follows:
(a) No Unlawful Uses or Nuisances. Tenant shall not use or occupy any of the Premises, the License Area or any Alterations or Improvements, or permit the use or occupancy thereof, in any unlawful manner or for any illegal purpose, or permit to be carried on any offensive, immoral, noisy or hazardous use or any use in violation of the conditions of any certificate of occupancy. Tenant shall take all precautions to eliminate immediately any nuisances or hazards relating to its activities on or about the Premises , the License Area or any Tenant’ s Facilities or Alterations permitted hereunder. Tenant’s use as permitted hereunder and in compliance with applicable law shall be deemed not to constitute a nuisance. Tenant shall not advertise in any manner in areas outside the Premises or on or about the Property; provided, however, that Tenant shall label Tenant’s Facilities as required under Section 5.2(d) , which may include placing one identification plate on each antenna, which plate shall be no larger than four (4) inches by six (6) inches and shall be reasonably approved in advance by City, in order to identify Tenant’s Facilities as belonging to Tenant.
(b) Health and Safety. Tenant agrees to reduce power or suspend operation of Tenant’s Facilities if and as necessary and upon reasonable notice to prevent exposure of workers or the public to radio frequency radiation from Tenant’s Facilities in excess of the then -existing regulatory standards. Tenant shall promptly provide City with a copy of each radio frequency DocuSign Envelope ID: 1E15859B-B48E-4FA1-A4DD-76C711D4BDD2
Rev. March 2016 12
Verizon Moccasin Surge Tank Cell Site Lease #L4338
emission study conducted in connection with proposed or installed Tenant’s Facilities at the Premises. City shall have the right to terminate this Lease without liability upon ninety (90) days’ written notice to Tenant if, after notice and public hearing, the San Francisco Board of Supervisors determines that Tenant’ s continued use of the Premises will adversely affect public health and safety.
(c) Covenant to Protect City’ s Facilities . At all times during the Term, Tenant shall protect the City’s Facilities from any damage, injury , or disturbance arising from Tenant’s use and/or occupancy of the Premises or License Area. If Tenant or any of its Agents or Invitees damages, inju res or disturbs any of the City’s Facilities, or any portion of the City’ s Facilities (including monuments), Tenant shall immediately notify City of that occurrence, and City may, without limiting any of its other rights hereunder, take all actions it deems proper to repair such City’s Facilities (including relocation of monuments) at Tenant’s sole expense. Tenant shall promptly, upon City’s request, remove or alter to City’s satisfaction and at Tenant’s sole cost, any Tenant’s Facilities, Alterations or Tenant’s Personal Property (as suc h terms are defined in Sections 6 (Tenant’s Facilities) and Section 7 (Alterations)) placed on the Premises or License Area by or on behalf of Tenant as necessary to avoid interference with City’s use of the Premises and License Area for municipal utility purposes. Tenant agrees that during any such repair of the City Facilities by City while following the procedures and guidelines set forth by the Occupational Safety and Health Administration and the FCC implementing the National Environmental Policy Act of 1969, when continuing transmission is deemed unsafe for maintenance personnel (based upon standards promulgated by a governmental authority having jurisdiction over Tenant) due to radiation, Tenant will turn off its effected transmitters until the unsafe condition no longer exists.
Alternatively, subject to the approval of the SFPUC’s General Manager (the “General Manager”) in his or her sole discretion, Tenant may pay for the costs reasonably determined by the General Manager that City will incur as a result of such interference. City may adopt from time to time such rules and regulations with regard to Tenant’s facilities and operations hereunder as City may determine are necessary or appropriate to safeguard against corrosion of City’s pipelines and related City’s Facilities. Tenant shall comply with all such rules and regulations upon receipt of a copy thereof.
(d) Covenant to Label Tenant’ s Facilities. Tenant shall label each conduit, wire, antenna, equipment rack and other item of Tenant’s Facilities i nstalled on the Premises or License Area with a durable, permanent, waterproof label, in form approved by Landlord, containing “Lease No. L4338” and “Site No. 300648”. At the entrance to the fenced or enclosed equipment area, Tenant shall affix a durable, waterproof plaque, in form approved by Landlord, stating the Lease number, Site number, and Tenant’s name, emergency phone number, and email address. Tenant shall update the plaque as necessary to keep the contact information current. (e) Covenant to Protect Water Courses. Tenant shall not cause any ponding on the Premises or License Area or any flooding on adjacent land. Tenant shall not engage in any activity that causes any change, disturbance, fill, alteration or impairment to the bed, bank or channel of any natural water course, wetland, or other body of water on, in, under or about the Property, nor shall Tenant engage in any activity that pollute or degrade any surface or subsurface waters or result in the diminution or drainage of such waters. (f) Covenant Against Dumping . Tenant shall not cause or permit the dumping or other disposal on, under or about the Premises or License Area of landfill, refuse, Hazardous Material or other materials that are unsightly or could pose a hazard to human health or safety, native vegetation or wildlife, or the environment.
DocuSign Envelope ID: 1E15859B-B48E-4FA1-A4DD-76C711D4BDD2
Rev. March 2016 13
Verizon Moccasin Surge Tank Cell Site Lease #L4338
(g) Covenant to Protect Trees and Native Vegetation . Tenant shall not engage in or permit the cutting, removal, or destruction of trees or any native vegetation on the Premises or License Area, wit hout the prior written approval of the City. If trees and/or native vegetation adversely interfere with Tenant’s telecommunication signal or encroach into the mandatory Defensible Space (as defined in Section 5.2(j)), Tenant may trim such trees and/or vegetation as necessary to eliminate such interference or encroachment if: (i) Tenant provides City with sixty (60) days’ written notice of its intent to trim, including a description of the interference and cause of the interference, a detailed description of the trees and/or native vegetation to be trimmed, and the extent to which such trees and/or vegetation will be trimmed, and (ii) City consents to the trimming, such consent not to be unreasonably withheld. (h) No Tree Planting . Except as required by a gove rnmental entity as a condition to any permit or license necessary for Tenant’s use of the Premises or License Area and approved by the City (such approval not to be unreasonably withheld), Tenant shall not plant any trees on the Premises, nor shall Tenant plant any other vegetation on the Premises except as otherwise expressly provided herein.
(i) Restrictions on Use of Chemical Herbicides and Pesticides. Tenant shall not cause or permit the application of biocides, defoliants, chemical fertilizers, pesticides or other agrichemicals, except as provided in this Subsection.
Chapter 3 of the San Francisco Environment Code (the Integrated Pest Management Program Ordinance or “ IPM Ordinance ”) describes an integrated pest management (“ IPM”) policy to be implemented by all City departments. Tenant shall not use or apply or allow the use or application of any pesticides on the Premises or contract with any party to provide pest abatement or control services to the Premises without first receiving City’s written approval of an IPM plan that (i) lists, to the extent reasonably possible, the types and estimated quantities of pesticides that Tenant may need to apply to the Premises during the term of this Lease, (ii) describes the steps Tenant will take to meet the City’s IPM Policy described in Section 300 of the IPM Ordinance and (iii) identifies, by name, title, address and telephone number, an individual to act as the Tenant’s primary IPM contact person with the City. Tenant shall comply, and shall require all of Tenant ’s contractors to comply, with the IPM plan approved by the City and shall comply with the requirements of Sections 300(d), 302, 304, 305(f), 305(g), and 306 of the IPM Ordinance, as if Tenant were a City department. Among other matters, such provisions of the IPM Ordinance: (a) provide for the use of pesticides only as a last resort, (b) prohibit the use or application of pesticides on property owned by the City, except for pesticides granted an exemption under Section 303 of the IPM Ordinance (including pesticides included on the most current Reduced Risk Pesticide List compiled by City’s Department of the Environment), (c) impose certain notice requirements, and (d) require Tenant to keep certain records and to report to City all pesticide use at the Premises by Tenant’s staff or contractors. In addition, Tenant shall ensure that the pesticide is used only in those amounts and with that frequency of application that constitutes the minimum necessary for the control or containment of the noxious weeds and pests, and that the pesticide will not enter any water supplies.
If Tenant or Tenant’s contractor will apply pesticides to outdoor areas at the Premises, Tenant must first obtain a written recommendation from a person holding a valid Agricultural Pest Control Advisor license issued by the California Department of Pesticide Regulation (“ CDPR”) and any such pesticide application shall be made only by or under the supervision of a person holding a valid, CDPR -issued Qualified Applicator certificate or Qualifi ed Applicator license .
City’s current Reduced Risk Pesticide List and additional details about pest management on City property can be found at the San Francisco Department of the Environment website, http://sfenvironment.org/ipm.
DocuSign Envelope ID: 1E15859B-B48E-4FA1-A4DD-76C711D4BDD2
Rev. March 2016 14
Verizon Moccasin Surge Tank Cell Site Lease #L4338
(j) Vegetation Management; Defensible Space. Tenant shall maintain at all times one hundred (100) feet of clear, defensible space around its structures and equipment (“Defensible Space”). No tree branches may hang over the Defensible Space. Tenant shall coordinate with the SFPUC s taff to identify and confirm in writing the boundaries of such Defensible Space. Tenant is responsible for maintaining this space clear of vegetation; provided, however, that in removing vegetation, Tenant shall comply with the processes and restrictions set forth in this Section 5.2, including those concerning pesticide use, protection of trees and prohibition of burning. Tenant’s clearing of Defensible Space must be completed by July 1 of each year. Tenant acknowledges the importance of maintaining Defensible Space to minimize the risk of wildfires on City’s lands. If Tenant fails to clear the vegetation by such date and does not remedy such failure within fourteen (14) days following City ’s delivery of written notice of such failure, then, without limiting the other remedies available to City under this Lease, or otherwise available at law or in equity (including the remedy under Section 18.4 to perform such vegetation removal at Tenant’s expense), City may charge an administrative fee to Tenant pursuant to Section 18.3. If Tenant does not perform such clearance within thirty (30) days following delivery of such notice, City may charge an additional administrative fee pursuant to Section 18.3, without limiting City’s other remedies.
(k) Covenant Against Waste. Tenant shall not cause or permit any waste, damage or injury to the Premises.
(l) Covenant Against Burning . Tenant shall not burn any weeds, debris or other substances on or about the Property.
(m) No Off-Road Vehicles. Tenant shall not use or permit the use of off -road vehicles on any portion of the Premises or License Area except on existing roads and driveways and in the manner for which such roads are intended.
(n) Use of Roads . Tenant shall not block or interfere with any travel on the roads on City’s Property. If Tenant proposes to install a new access road, Tenant shall present the proposal to Project Review in accordance with Section 7.1. If approved, the construction of the road shall be subject to the applicable provisions of this Lease, including Sections 2.2 (License; Tenant’s Access to City’s Property) and 7 (Alterations).
5.3 Periodic Review
City and Tenant shall confer periodically to review the effectiveness of Tenant’s vegetation management under Section 5.2(j) and to review any issues related to Tenant’s noncompliance with access requirements. If requested by City, City and Tenant shall meet at the Premises to conduct such review.
6. TENANT’S FACILITIES
Under the Original Lease, Tenant’s predecessor installed the facilities described as Tenant’s Existing Facilities in Section 1 (Basic Lease Information) and shown on attached Exhibit C-1.
Following the Commencement Date, Tenant may commence to remove Tenant’s Existing Facilities and install new facilities and improvements (“ Tenant’s Initial Alterations ”) on the Premises and the License Area, provided, however, that (i) Tenant’s Initial Alterations must comport with the Approved Plans attached as Exhibit C; and (ii) Tenant’s Initial Alterations may be installed only after the prior written approval of City, which City shall not unreasonably DocuSign Envelope ID: 1E15859B-B48E-4FA1-A4DD-76C711D4BDD2
Rev. March 2016 15
Verizon Moccasin Surge Tank Cell Site Lease #L4338
withhold. Tenant shall be responsible, at its cost, for performing Tenant’s Initial Alterations in accordance with the Approved Plans and otherwise in compliance with the standards, requirements and processes described in Section 7.1 (Tenant’ s Alterations) and the permit and notice requirements in Section 2.2 (License; Tenant’s Access to City’s Property) relating to Tenant ’s access to the Property. Tenant shall further be responsible, at its cost, for obtaining all permits and licenses required in connection with Tenant’s Initial Alterations and satisfying any conditions or mitigation measures approved in connection therew ith. No part of Tenant’s Initial Alterations shall commence until Tenant has first obtained all necessary permits and approvals for Tenant to be legally entitled to construct Tenant’s Initial Alterations.
Tenant’s Existing Facilities, as modified, replaced, reduced, and/or expanded by Tenant’s Initial Alterations, and as they may be further modified, expanded, reduced and replaced from time to time in accordance with Section 7, are referred to in this Lease as “Tenant's Facilities.”
7. ALTERATIONS
7.1 Tenant’s Alterations
(a) Definitions. The term “ Improvements” means any buildings, structures, fixtures and other improvements, including signs, roads, trails, grading, driveways, parking areas, utility infrastructure, plantings and hardscape. The term “Alterations” includes “Tenant’s Initial Alterations” (as defined in Section 6 (Tenant’s Facilities)) and any additional Improvements, equipment or facilities.
(b) Tier 1 Work. For Tenant’s maintenance and/or like-for-like modifications within Tenant’s equipment enclosures on the concrete pad (“Tier 1 Work”), Tenant shall provide City ten (10) days prior written notice. City approval shall not be required for Tier 1 Work (c) Tier 2 Work. If Tenant engages in any work or alterations, including like- for-like modifi cations to Tenant’s equipment on the surge tank or if Tenant adds additional equipment to the concrete pad (“Tier 2 Work”), Tenant shall provide City with sixty (60) days’ prior written notice and a request for consent. City shall respond to Tenant’s reque st in writing within ten (10) business days. Tenant shall comply with the requirements of Section 7.1( e). City may not unreasonably withhold its approval.
(d) Tier 3 Work.
(i) Tenant shall not make, construct, install, or permit any modifications or alterations of existing Improvements on the Property or of Tenant’s Facilities, or attach or permit the attachment of anything to Tenant’s Facilities, or install or permit the installation of any additional Improvements, new equipment, or new facilities outside of t he concrete pad on the Property (collectively, “ Tier 3 Work ”), except with City’s prior written consent and in accordance with approved plans, City’s approval may be withhe ld at City’s sole discretion or may be conditioned on, among other things, an increase in Base Rent for proposed additional Tenant’s Facilities.
(ii) Project Review Process for Tier 3 Work; Required Studies and Analyses. Except for the previously approved Tenant’s Initial Alterations, Tenant shall submit a project review application to City at least one hundred twenty (120) days before the expected commencement of any proposed Tier 3 Work and shall undergo the SFPUC’s proj ect review process (“Project Review ”). City shall respond to Tenant’s request in writing within ten (10) business days, detailing Tenant’s next step s for Project Review. After Tenant successfully DocuSign Envelope ID: 1E15859B-B48E-4FA1-A4DD-76C711D4BDD2
Rev. March 2016 16
Verizon Moccasin Surge Tank Cell Site Lease #L4338
completes the Project Review process for Tier 3 Work one or more times, the SFPUC’s Watershed Manager or his or her designee may waive the Project Review meeting requirement (but not the Project Review application requirement) in subsequent similar cases . In conducting any construction, maintenance, repair, expansion or replacement, Tenant shall comply with all conditions and measures imposed by the SFPUC. City reserves the right to require a structural review analysis, including engineering specifications and calculations for roof (if applicable) and structure we ight and wind loading, stamped and signed by a California licensed professional engineer for Tier 3 Work. City reserves the right to require a viewshed study to be conducted at Tenant’s expense, to ensure that the proposed Tier 3 Work is sited and designed to avoid or minimize potential impairment of the land’s scenic values. (e) Consent. Where appropriate in City’s judgment, City will require that Tenant minimize the visual impact of proposed Tier 2 or Tier 3 Work through design, screening and siting. For e xample, City may require that the Tier 2 or Tier 3 Work blends with and/or complements the color, design and/or character of the surrounding context, whether natural backdrop, building or existing facility. In no event shall City’s approval of Tenant’s plans and specifications be deemed to constitute a representation or warranty by City concerning the suitability of the proposed facilities and improvements for Tenant’s purposes or that the work called for in the plans and specifications complies with applicable building codes or other applicable laws or industry standards nor shall such app roval release Tenant from Tenant’s obligation to supply plans and specifications that conform to applicable codes, other laws and industry standards.
(f) Tenant’s Contractors and Compliance with Conditions. Any Tier 1, 2, or 3 Work shall be done at Tenant’s sole expense in accordance with the Approved Plans (for Tier 2 and Tier 3 Work) , only by duly licensed and bonded contractors, and subject to all other conditions that City may reasonably impose.
(g) Access Requirements; Construction Schedule. Without limiting the foregoing, Tenant agrees to comply with the permit and notice requirements in Section 2.2 in connection with Tenant’s access to the Property for any inspection, construction, maintenance, repair, expansion or replacement of Tenant’s Facilities. At least ten (10) business days before the proposed installation of any Alterations or maintenance or repair operation, Tenant shall submit the proposed construction schedule to City’ s Access Contact for approval. All work must be performed Monday through Friday between 8:00 a.m. and 4:30 p.m., excluding City holidays.
Any work performed at any other time must be approved by the City in writing at least two (2) business days prior to the commencement of the work.
(h) Permits. Tenant shall further be responsible, at its cost, for obtaining all permits (including any required conditional use permit) and licenses req uired in connection with Tenant’s Alterations and satisfying any conditions or mitigation measures approved in connection therewith. No part of Tenant’ s Alterations shall commence until Tenant has first obtained all necessary permits and approvals for Tenant to be legally entitled to construct same. Tenant shall deliver a copy of each such permit, license and approval promptly upon receipt of same. (i) Completion; Restoration. Upon completion of the work, all debris shall be removed and the Premises and any other City property affected by the work shall be restored to their original condition to the satisfaction of the SFPUC. Tenant shall contact City’s Access Contact to arrange for an inspection by the SFPUC staff upon completion of the work to confirm satisfactory restoration.
DocuSign Envelope ID: 1E15859B-B48E-4FA1-A4DD-76C711D4BDD2
Rev. March 2016 17
Verizon Moccasin Surge Tank Cell Site Lease #L4338
(j) Administrative Fee. If the cost of any Tier 3 Work to the Property exceeds Five Thousand Dollars ($5,000), then Tenant shall pay City an administrative fee equal to Five Hundred Dollars ($500) in each instance.
(k) Visual Impact or Adverse Effects of Existing Tenant’s Facilities . City reserves the right to require changes to or replacements of Tenant’s Facilities in the future in order to minimize the visual impact through design or screening, to conform to changes in the local design standards, to address adverse effects on City’s Property, facilities, or resources.
7.2 Title to and Removal of Tenant’s Facilities and Alterations Ownership and removal of Tenant’ s P
ersonal Property is addressed in Section 7.3. Any
other Tenant’s Facilities and Alterations constructed on or affixed to the Premises or License Area by or on behalf of Tenant pursuant to the terms and limitation s of Section 7.1 (Tenant’ s Alterations) above shall be and remain Tenant’s property during the Term unless City elects in writing to accept ownership of same. Prior to the Expiration Date or any earlier termination hereof, Tenant shall remove all such Tenant’s Facilities and Alterations from the Premises in accordance with the provisions of Section 26 (Surrender of Premises) unless (a) City at its sole option and without limiting any of the provisions of Section 7.1, requires as a condition of approval of any such Tenant’s Facilities or Alterations that the foundation, equipment shelter, antenna structure, and underground and aboveground conduit portions of such Tenant’ s Facilities or Alterations remain on the Premises or License Area at the expiration or termination of this Lease; (b) City, as a condition of approval of any Tenant’s Facilities or Alterations, reserves the right to elect by notice to Tenant before the expiration of the Term to have such foundation, equipment shelter, antenna structure, and underground and aboveground conduit portions of the Alterations remain on the Premises or License Area and thereafter notifies Tenant that City is exercising such election, which election for City to retain the same shall not include any trademarked, co nfidential or proprietary information or equipment of Tenant as plainly identified by Tenant in Exhibit C (Approved Plans); or (c) City at its sole option accepts Tenant’s offer (described below) of the foundation, equipment shelter, antenna structure, and underground and above ground conduit portions of the Tenant’s Facilities and Alterations. Tenant shall offer to City the foundati on, equipment shelter, antenna structure, and underground and aboveground conduit portions of the Tenant’s Facilities and Alterations (i) a minimum of forty-five (45) days prior to the expiration of the Term; (ii) in the notice of termination if Tenant has a right to terminate the Lease; or (iii) as soon as practicable following notice of termination by City.
7.3 Tenant’s P
ersonal Property
All furniture, furnishings and articles of movable personal property and equipment installed in the Premises by or for the account of Tenant (all of which are herein called “Tenant’s Personal Property ”) that can be removed without structural or other material damage to the Premises or License Area shall be and remain the property of Tenant and may be removed by it subject to the provisions of Section 26 (Surrender of Premises) hereof. Tenant may grant to the vendor of the equipment to be installed at and affixed to the Premises a security interest in Tenant’s Personal Property on the Premises or hereafter located on the Premises. Tenant shall not grant a security interest that covers any portion of the Premises or the Property. Any security interest granted by Tenant must require the holder to comply with the provisions of Section 26 (Surrender of Premises) in removing any of Tenant’s Personal Property.
DocuSign Envelope ID: 1E15859B-B48E-4FA1-A4DD-76C711D4BDD2
Rev. March 2016 18
Verizon Moccasin Surge Tank Cell Site Lease #L4338
7.4 Waiver of Landlord Lien
City acknowledges that Tenant has entered into or may enter into one or more financing arrangements with third party financing entities (collectively, “ Financing Entity”), which may include promissory n otes and financial and security agreements, for the financing of Tenant’s Personal Property (the “Collateral”). In connection therewith, City consents to the installation of the Collateral, and, upon Tenant’s reasonable request, shall execute and deliver any reasonable document required by any Financing Entity, pursuant to which City waives any rights it may have or acquire with respect to Tenant’s Personal Property, so long as (a) the Financing Entity agrees that it (i) will, following reasonabl e notice to City, remove Tenant’s Personal Property from the Premises during the Term or within thirty (30) days after the expiration or sooner termination of the Lease (and if it does not remove Tenant’s Personal Property within such time it shall have waived any rights it may have had to Tenant’s Personal Property), and (ii) will repair any damage caused by the removal of Tenant’s Personal Property, and (b) Tenant reimburses City for its actual costs in reviewing and preparing any document required under this subsection which amount shall not exceed $1,000.00. City shall recognize the rights of a Financing Entity who has an interest in any items of Tenant’s Personal Property to enter the Premises and remove such property at any time during the Term or within thirty (30) days after the Expiration Date, provided the Financing Entity complies with the foregoing requirements and Tenant’s notice obligations under this Lease.
8. CITY’S
ALTERATIONS OF THE PROPERTY AND UTILITY NETWORK
City reserves the right at any time to make alterations, additions, repairs, deletions or improvements to all or any part of the Property, the Utility Network or the common areas of the Property, for any purpose including compliance with mandatory or voluntary controls or guidelines, subject to the following terms and conditions. In performing any such work, City shall make good faith efforts to give Tenant prior notice of such work and shall make reasonable efforts not to disrupt Tenant’s normal use of Tenant’s Facilities on the Premises. The making of any such alterations, additions, repairs, deletions or improvements shall in no event entitle Tenant to any damages, relieve Tenant of the obligation to pay the full Base Rent and Additional Charges reserved hereunder or to perform each of its other covenants hereunder or constitute or be construed as a constructive or other eviction of Tenant, provided that City does not materially interfere with Tenant’s use of the Premises as set forth in Section 5.1 (Permitted Use).
9. MAINTENANCE AND REPAIRS
9.1 Tenant’s Responsibility for Maintenance and Repair
Tenant assumes full and sole responsibility for the condition, operation, repair, maintenance and management of the License Area (insofar as affected by Tenant’s use), the Premises, the Tenant’s Facilities, and any Alterations from and after the Commencement Date.
Tenant shall, at its sole expense, repair any damage to the Property, normal wear and tear excepted, caused by Tenant, its Agents or Invitees. Without limiting the foregoing, Tenant shall maintain in good condition and repair at its expense any existing fence along or about the boundary of the Premises, shall repair any damage to roads on the Property caused by Tenant or any of its Agents or Invitees, to the reasonable satisfaction of City, and shall maintain any access road or spur from the main service road to Tenant’s Facilities and Alterations in good, passable condition, with all - weather materials, at its sole cost and expense. Tenant acknowledges that all roads on the Property may be used by City and other tenants of City . If an access road is used by Tenant and one or more other tenants, within thirty (30) days after receipt of Landlord’s invoice, Tenant shall pay its proportionate share of the costs incurred by the SFPUC to maintain and repair such road.
DocuSign Envelope ID: 1E15859B-B48E-4FA1-A4DD-76C711D4BDD2
Rev. March 2016 19
Verizon Moccasin Surge Tank Cell Site Lease #L4338
City shall not under any circumstances be responsible for the performance of any repairs, changes or alterations to the Premises or the License Area or utilities and other infrastructure serving the Premises or the License Area, nor shall City be liable for any portion of the cost thereof, except to the extent caused by City’s sole negligence or willful misconduct. Tenant shall make all repairs and replacements, interior and exterior, structural as well as non-structural (except in City’s Facilities as provided above), ordinary as well as extraordinary, foreseen and unforeseen, that may be necessary to maintain the Premises and License Area, Tenant’s Facilities, and Tenant’s Alterations at all times in clean, safe, attractive and sanitary condition and in good order and repair, to City’s reasonable satisfaction. If any portion of the Premises, License Area, or other parts of City’s Property is damaged by any of the activities conducted by Tenant or its Agents or Invitees hereunder, Tenant shall immediately, at its sole cost, repair any and all such damage and restore the Premises and License Area or City’s property to its previous condition.
9.2 Project Review and Access Requirements
Tenant shall comply with the Project Review requirements of Section 7.1 and the permit and access requirements of Section 2.2 in connection with Tenant’s maintenance and repair operations.
9.3 No Right to Repair and Deduct
Tenant expressly waives the benefit o f any existing or future Law or judicial or administrative decision that would otherwise permit Tenant to make repairs or replacements at City’s expense, or to termi nate this Lease because of City’s failure to keep the Premises, the License Area or any adj oining property (including access roads, utilities and other infrastructure serving the Premises) or any part thereof in good order, condition or repair, or to abate or reduce any of Tenant’s obligations hereunder on account of the Premises or any adjoining property (including access roads, utilities and other infrastructure serving the Premises) or any part thereof being in need of repair or replacement; provided, however, in such event, Tenant shall have the right to relocate Tenant’s Facilities to anothe r mutually agreeable location on City property and City will make a good faith, reasonable effort to help Tenant find such mutually agreeable location if possible. The relocation of the Premises shall be at Tenant’s cost. To avoid interruption of Tenant’s service, City shall reasonably cooperate in good faith with Tenant to allow Tenant, if reasonably possible, to place a temporary cell site and antenna structure on the Property during relocation. If City and Tenant cannot reach agreement on a new location for Tenant’s Facilities, Tenant may terminate this Lease on one hundred eighty ( 180) days’ written notice. If Tenant terminates this Lease under this Section (or any other provision), Tenant is obligated to offer City certain of Tenant’s Facilities and Alterations as stated in Section 7.2 (Title to and Removal of Tenant’s Facilities and Alterations). Without limiting the foregoing, Tenant expressly waives the provisions of California Civil Code Sections 1932, 1941 and 1942 or any similar Laws with respect to any right of Tenant to terminate this Lease and with respect to any obligations of City for tenantability of the Premises or the License Area and any right of Tenant to make repairs or replacements and deduct the cost thereof from the Rent.
10. LIENS
Tenant shall keep the Premises and the Property (including the City’s Facilities) free from any liens arising out of any work performed, material furnished or obligations incurred by or for Tenant, except for Tenant obligations under the financing arrangements described in Section 7.4 (Waiver of Landlord Lien). In the event Tenant shall not, within thirty (30) days following the imposition of any such lien, cause the lien to be released of record by payment or posting of a proper bond, City shall have in addition to all other remedies provided herein and by law or equity DocuSign Envelope ID: 1E15859B-B48E-4FA1-A4DD-76C711D4BDD2
Rev. March 2016 20
Verizon Moccasin Surge Tank Cell Site Lease #L4338
the right, but not the obligation, to cause the same to be released by such means as it shall deem proper, including payment of the claim giving rise to such lien. All such sums paid by City a nd all expenses incurred by it in connection therewith (including reasonable attorneys’ fees) shall be payable to City by Tenant upon demand. City shall have the right at all times to post and keep posted on the Premises any notices permitted or required by law or that City shall deem proper for the protection of City, the Premises, and the Property, from mechanics’ and material supplier s’ liens. Tenant shall give to City at least fifteen (15) days’ prior written notice of commencement of any repair or construction on the Premises except for minor and routine repair and maintenance for which Tenant is responsible hereunder. Tenant shall not create, permit or suffer any other encumbrances affecting any portion of the Premises or the Property except as expressly permitted under this Lease or without first obtaining the written consent of City, which City may give or withhold in its sole discretion.
11. UTILITIES AND SERVICES
11.1 Utilities and Services
The SFPUC is the provider of electric services to City property and the Interconnection Services Department of the SFPUC’s Power Enterprise implements this service. All electricity necessary for Tenant’s operations on the Premises shall be provided by the SFPUC, at the SFPUC’s standard rates charged to third parties. To arrange for electric service to the Premises and installation of the electrical meter or sub -meter by the SFPUC, Tenant shall contact the Interconnection Services Department. The SFPUC will be responsible for installation and maintenance of electrical facilities upstream of the electrical meter. Tenant will be responsible for installation and maintenance of all electrical facilities downstream of and including the electrical meter. Tenant shall not: (a) connect or use any electrical equipment that exceeds the capacity of the electrical system(s) on the Property or (b) connect any apparatus, machine or device through electrical outlets except in the manner for which such outlets are designed, except for such modifications as may be shown on the Approved Plans and for any oth er such modifications at Tenant’s sole cost as are reasonably approved in writing in advance by City.
For all other utilities and services furnished to or used by Tenant (inclu ding gas, water, sewer, telephone service, trash collection, and janitorial service), Tenant shall be responsible for installation and maintenance of all facilities required in connection with such utility services.
Tenant shall make arrangements directly with the utility companies and shall promptly pay for the services and for all deposits and connection, and installation charges. Except for the electrical meter or sub-meter to be installed by the SFPUC, Tenant shall install separate utility meters at the Premises and, when permitted by serving utilities, Tenant shall be responsible directly to the serving utilities for all utilities required fo r Tenant’s use of the Premises. Any and all utility improvements installed by, for, or on behalf of Tenant shall be deemed Alterations and shall be subject to the provisions of Section 7 (Alterations).
During the Term, Tenant shall be obligated to repair and maintain in good operating condition any and all utility systems and improvements located on or within the Premises or within the License Area and serving the Premises (excluding City’s Facilities, except to the extent installed in order to provide electric power to the Premises as stated in this Section). City shall not be liable for any failure or interruption of any utility service furnished to the Premises, and no such failure or interruption shall entitle Tenant to any abatement in Rent or to terminate this Lease.
In the event utility services are purchased by City and provided to Tenant by City, Tenant shall pay as Additional Charges the cost of the utility service provided to the Prem ises and attributable to Tenant’ s use and a reasonable administrative charge to cover Landlord’s costs DocuSign Envelope ID: 1E15859B-B48E-4FA1-A4DD-76C711D4BDD2
Rev. March 2016 21
Verizon Moccasin Surge Tank Cell Site Lease #L4338
(together, the “ Utility Charge ”). The administrative charge will b e based on the scope of Landlord’s services (such as metering, monitoring, reporting and billing), but in any event will not exceed ten percent (10%) of the cost of the utility service charged to City by the applicable utility.
If Tenant is required to pay a Utility Charge to City, at least annually during the Lease term, City (or at City’s election, Tenant) shall calculate the actual Utility Charge for the immediately preceding twelve (12) months based on readings from the utility meters at the Property and on the rates currently charged by the applicable utility. Calculation of the actual Utility Charge due shall be made by City. City shall not be liable for, and Tenant shall not be entitled to any abatement or reduction of Rent by reason of Landlord’ s failure to furnish utilities when such failure is caused by accident, breakage, repairs (including replacements), strikes, lockouts or other labor disturbances or disputes of any character, or for any other causes other than the gross negligence or willful misconduct of City.
11.2 Mandatory or Voluntary Restrictions
In the event City provides any utilities pursuant to Section 11.1 (Utilities and Services), and any governmental entity promulgates or revises any statute, ordinance or building, fire or other code or imposes mandatory or voluntary controls or guidelines on City or the Property or any part thereof, relating to the use or conservation of energy or electricity, or in the event City is required or elects to make alterations to any part of the Property in order to comply with such mandatory or voluntary controls or guidelines, such compliance and the making of such alterations shall in no event entitle Tenant to any damages, relieve Tenant of the obligation to pay the full Base Rent and Additional Charges reserved hereunder or to perform each of its other covenants hereunder or constitute or be construed as a constructive or other eviction of Tenant.
12. COMPLIANCE WITH LAWS AND RISK MANAGEMENT REQUIREMENTS
12.1 Compliance with Laws
Tenant, at Tenant’s exp
ense, shall maintain the Premises, the License Area (insofar as it is affected by Tenant’s use), and any Tenant’s Facilities and Alterations and any other improvements and equipment permitted hereunder, and conduct Tenant’s use and operations on the Property, in strict compliance with all present and future laws, orders and regulations of federal, state, county, regional and municipal authorities (collectively, “ Laws”) relating to the Premises or the License Area or the use or occupancy thereof, whether foreseen or unforeseen, ordinary as well as extraordinary. Such Laws shall include all Laws relating to interference caused by radio frequency signals, health and safety, disabled accessibility including the Americans with Disabilities Act, 42 U.S.C. Sections 12101 et seq. (insofar as such Act relates to Tenant’s unique use) and Title 24 of the California Code of Regulations, all present and future Environmental Laws (as defined in Section 27.1 (Definitions)), and all present and future life safety, fire sprinkler, seismic retrofit and other building code requirements, except that Tenant shall not be required to make any alterations in order to comply with the Americans with Disabilities Act unless such alterations shall be occasioned, in whole or in part, by Tenant’s Facilities or Tenant’s Alterations, by Tenant’s unique use of the Premises, or by the acts, omissions, or negligence of Tenant, or its Agents or Invitees. Any work or installations made or performed by or on behalf of Tenant or any person or entity claiming through or under Tenant pursuant to the provisions of this Section shall be made in conformity with and subject to the provisions of Section 7 (Alterations). If the Premises are located within San Francisco, in making any application to City’s Planning Department for the Communications Site, Tenant agrees to act as both “Applicant” and “Project Sponsor.” The Parties a
cknowledge and agr ee that Tenant’ s obligation to comply with all Laws as provided herein is a material part of the bargained -for consideration under this Lease. Tenant’ s DocuSign Envelope ID: 1E15859B-B48E-4FA1-A4DD-76C711D4BDD2
Rev. March 2016 22
Verizon Moccasin Surge Tank Cell Site Lease #L4338
obligation under this Section shall include the responsibility of Tenant to make substantial or structural repairs and alterations to the Premises (including any of the Tenant’s Alterations), regardless of, among other factors, the relationship of the cost of curative action to the Rent under this Lease, the length of the then- remaining Term hereof, the relative benefit of the repairs to Tenant or City, the degree to which the curative a ction may interfere with Tenant’s use or enjoyment of the Premises, the likelihood that the Parties contemplated the particular Law involved, and whether the Law involved is related to Tenant’s particular use of the Premises. No occurrence or situation arising during the Term, nor any present or future Law, whether foreseen or unforeseen, and however extraordinary, shall relieve Tenant from its obligations hereunder, or shall give Tenant any right to terminate this Lease in whole or in part or to otherwise seek redress against City. Except as expressly provided herein, Tenant waives any rights now or hereafter conferred upon it by any existing or future Law to terminate this Lease, to receive any abatement, diminution, reduction or suspension of payment of Rent, or to compel City to make any repairs to comply with any such Laws, on account of any such occurrence or situation.
City is entering into this Lease in its capacity as a property owner with a proprietary interest in the Premises and not as a regulatory agency with police powers. Nothing in this Leas e shall limit in any way Tenant’s obligation to obtain any required regulatory approvals from City departments, boards or commissions having jurisdiction over the Premises. By entering into this Lease, City is in no w ay modifying or limiting Tenant’s obligation to cause the Premises to be used and occupied in accordance with all Laws as provided above. Tenant understands and agrees that no approval by City for purposes of this Lease shall be deemed to constitute approval by any federal, state, City or other local regulatory authority with jurisdiction, and nothing herein shall limit Tenant’s obligation to obtain all such regulatory approvals and keep them current, at Tenant’s sole cost, or limit in any way City’s exercise of its police powers.
12.2 Licenses and Approvals
Tenant represents and warrants that it has acquired all licenses, permits, and other approvals required under all federal, state, and local laws for the operation of Tenant’s Facilities on the Premises. Tenant shall maintain all s uch licenses, permits or other approvals current throughout the Term of this Lease, and all frequencies and equipment used by Tenant shall fall within the frequencies licensed to Tenant by the Federal Communications Commission (the “FCC”). Tenant shall provide a copy of all such licenses, permits and approvals to City.
12.3 Radiofrequency Radiation and Electromagnetic Fields Without limiting Section 12.1 (Compliance with Laws), Tenant shall comply with all present and future Laws relating to allowable presence of or human exposure to Radiofrequency Radiation (“ RFs”) or Electromagnetic Fields (“ EMFs”) on or off the Premises, including all applicable standards adopted by the FCC, whether such RF or EMF presence or exposure results from Tenant’s Facilities alone or from the cumulative effect of Tenant’ s Facilities added to all other sources on or near the Property. Without limiting the provisions of Tenant’s indemnity contained in Section 19 (Tenant’s Indemnity), Tenant, on behalf of itself and its successors and assigns, shall indemnify the Indemnified Parties (as defined in Section 19), and each of them, from and against all Claims incurred in connection with or arising in whole or in part from the presence of or exposure to RFs or EMFs resulting from Tenant’s use of the Premises.
12.4 Compliance with City’s Risk Management Requirements Tenant shall not do anything, or permit anything to be done, in or about the Premises or the License Area that would create any unusual fire risk, and Tenant shall take commercially DocuSign Envelope ID: 1E15859B-B48E-4FA1-A4DD-76C711D4BDD2
Rev. March 2016 23
Verizon Moccasin Surge Tank Cell Site Lease #L4338
reasonable steps to protect City from any potential premises liability by reason of any business operation being conducted by Tenant in the Premises. Tenant, at Tenant’s expense, shall comply with all reasonable rules, orders, regulations or requirements of City’s Risk Manager.
13. SUBORDINATION
This Lease shall be subordinate to any reciprocal easement agreements, ground leases or underlying leases and the lien of any mortgage or deed of trust (collectively, “ Encumbrance”), which may now exist or hereafter be executed affecting any of the Property or City’ s interest therein and all renewals, extensions, modifications, and replacements of such Encumbrance.
Notwithstanding the foregoing, City shall have the right to subordinate any such Encumbrance to this Lease. If any ground lease or underlying lease terminates for any reason or any mortgage or deed of trust is foreclosed or a conveyance in lieu of foreclo sure is made for any reason, Tenant shall attorn to the successor-in-interest to City, at the option of such successor-in-interest, provided that so long as Tenant is not in default hereunder, such successor -in-interest shall recognize this Lease and shall not disturb Tenant in its possession of the Premises for any reason other than one that would entitle City to terminate this Lease or otherwise dispossess Tenant of the Premises in accordance with the terms hereof. No further instrument shall be required to make the provisions hereof operative except that City shall give Tenant written notice of such subordination. Tenant agrees, however, to execute and deliver, upon demand by City and in the form requested by City, any additional documents evidencing the priority or subordination of this Lease provided such documents contain a non -disturbance and recognition agreement executed by the holder of such Encumbrance.
14. DAMAGE OR DESTRUCTION
The Parties recognize that the Premises are a small portion of a Propert y used for, among other things, the operation of a regional water system and municipal power system. In the event of damage to the Premises or the Property by any cause, City shall have no obligation to repair or rebuild any of the damaged or destroyed improvements or facilities. If in its sole discretion, City determines to repair or rebuild any damaged improvements or facilities owned by City and used by Tenant, City shall use reasonable efforts to give Tenant written notice of its determination and its good faith estimate of the amount of time to repair or rebuild, within thirty (30) days of the date of such damage or destruction. If such repairs or rebuilding cannot be completed within two hundred ten (210) days after the date of such damage or destruction (the “ Repair Period”), as determined by City, or if City elects not to repair or rebuild as provided above, then Tenant shall have the right, at its election, to terminate this Lease on sixty (60) days’ prior written notice to City. If Tenant elects to terminate this Lease, prior to the effective date of termination Tenant shall remove from the Property all of Tenant’s Personal Property and any other Tenant’s Facilities and Alterations other than those that City has agreed are to remain part of the Premises or License Area pursuant to Section 7.2 (Title to and Removal of Tenant’s Facilities and Alterations).
During the period of any repair or rebuilding provided for hereunder, subject to the notice requirements in Section 2.2, Tenant shall have the ri ght, at its sole expense, to bring onto the Property in a location mutually acceptable to Tenant and City, and to operate, a mobile wireless communications facility site and telescopic antennae or tower (collectively “Temporary Communications System”) in o rder to provide for continuous service to Tenant’ s customers during such period, provided that neither the placement nor use of such equipment shall interfere with the operations of City or its other tenants on the Property or any repairs or rebuilding that City elects to perform, or damage any City property, or conflict with City’s watershed management plans or policies or applicable Laws. Tenant may maintain such Temporary Communications System on the Property only for so long as is reasona bly required to repair and restore Tenant’s DocuSign Envelope ID: 1E15859B-B48E-4FA1-A4DD-76C711D4BDD2
Rev. March 2016 24
Verizon Moccasin Surge Tank Cell Site Lease #L4338
Facilities. In no event shall City be required to repair any damage to Tenant’s Personal Property or any Tenant’s Facilities and Tenant shall promptly commence and diligently prosecute such repairs and restoration to completion in accordance with applicable requirements of Sections 2.2 and 7. Notwithstanding the foregoing, Tenant shall not install or operate a generator on the Property without City’s advance written consent which may be granted or withheld in City’s sole and absolute discretion. Tenant shall house the generator in a location and manner designed to avoid unauthorized access to Tenant’s generator. Tenant, in its sole discretion, shall have the right to terminate this Lease upon thirty (30) days’ advance written notice if Tenant is unable to obtain City’s consent to operation of a generator or is unable to operate a Temporary Communications System on the Property during any period of repair or rebuilding provided for hereunder as a result of City’s failure to provide a mutually acceptable location for such equipment.
In the event of any damage or destruction to the Premises or any permitted Alterations, there shall be no abatement in the Base Rent or Additional Charges payable pursuant to this Lease.
The Parties understand and agree that the provisions of this Section 14 are intended to govern fully the rights and obligations of the Parties in the event of damage or destruction, and Tenant and City each hereby waives and releases any right to termina te this Lease in whole or in part under Sections 1932.2 or 1933.4 of the California Civil Code or under any similar Laws, now or hereafter in effect to the extent such rights are inconsistent with the provisions hereof.
15. CONSTRUCTION PROJECTS
Tenant acknowledges that during the Term, major construction projects may be undertaken on property in the immediate vicinity of the Premises (outside the boundaries of the Premises).
Tenant is aware that the construction of such projects and the activities associated with such construction will generate certain adverse impacts, which may result in some inconvenience to or disturbance of Tenant. Such impacts may include, but are not limited to, increased vehicle and truck traffic, traffic delays and re-routing impediments to access, loss of street and public parking, dust, dirt, construction noise and visual obstructions. Tenant hereby waives any and all claims against the SFPUC, City and their Agents based on such inconvenience or disturbance, including any abatement or reduction or Rent.
16. EMINENT DOMAIN
16.1 Eminent Domain
If all or any part of the Premises or License Area shall be taken as a result of the exercise of the power of eminent domain or any transfer in lieu thereof, this Lease shall terminate as to the part so taken as of the date of taking. In the case of a partial taking, Tenant shall have the right to terminate this Lease as to the balance of the Premises by written notice to City within thirty (30) days after such date; provided, however, that a condition to the exercise by Tenant of such right to terminate shall be that the portion of the Premises taken shall be of such extent and nature as to materially impair Tenant’s use of the balance of the Premises as a Communications Site. In the event of a partial taking of the Premises which does not result in a termination of this Lease, the Base Rent and Additional Charges thereafter to be paid shall be equitably reduced.
If any material part of the Property (including City’s Facilities) shall be taken as a result of the exercise of the power of eminent domain or any transfer in lieu thereof, City shall have the right to terminate this Lease by written notice to Tenant within thirty (30) days of the date of the taking.
DocuSign Envelope ID: 1E15859B-B48E-4FA1-A4DD-76C711D4BDD2
Rev. March 2016 25
Verizon Moccasin Surge Tank Cell Site Lease #L4338
In the event of any taking, City shall be entitled to any award which may be paid or made in connection therewith. Tenant shall have no claim against City for the value of any unexpired term of this Lease or otherwise except that Tenant may claim any portion of the award that is specifically allocated to Tenant’s relocation expenses or the interruption of or damage to Tenant’s business or loss or damage to Tenant’s Personal Property.
The Parties understand and agree that the foregoing provisions of this Section are intended to govern fully the rights and obligations of the Parties in the event of a taking. Tenant and City each hereby waives and releases any right to terminate this Lease in whole or in part under Sections 1265.120 and 1265.130 of the California Code of Civil Procedure (partial termination of lease and Court order terminating lease, respectively) or under any similar law, statute or ordinance now or hereafter in effect.
16.2 Temporary Takings
Notwithstanding the foregoing, if a taking occurs with respect to all or any portion of the Premises for less than ninety (90) days, this Lease shall remain unaffected thereby, and Tenant shall continue to perform all of the terms, conditions and covenants of this Lease, except that Tenant shall be entitled to an abatement in Base Rent to the extent that its use of the Premises as a Communications Site is materially impaired. In the event of any such temporary taking, Tenant shall be entitled to receive that portion of any award which represents compensation for the use or occupancy of the Premises during the Term up to the total Base Rent and Additional Charges owing by Tenant for the period of the taking, and City shall be entitled to receive the balance of any award.
17. ASSIGNMENT AND SUBLETTING; CO-LOCATION
17.1 Restriction on Assignment and Subletting
Tenant shall not directly or indirectly (including by merger, acquisition, sale, withdrawal of any general partner, or other transfer of any controlling interest in Tenant or any entity controlling Tenant), voluntarily or by operation of law, sell, assign, encumber, pledge or otherwise transfer any part of its interest in or rights with respect to the Premises, the business conducted on the Premises, any Alterations, or its leasehold estate created by this Lease (each, an “Assignment”), or permit any portion of the Premises or any of Tenant’s Facilities or Alterations to be occupied by anyone other than itself, or sublet any portion of the Premises or sublicense any of Tenant’s rights hereunder (each, a “Sublease”), without City’s prior written consent, which City may withhold at its sole discretion, subject to the exception for certain permitted Transfers as provided in Section 17.6 (Permitted Assignment). As used in this Lease, the term “Transfer” means an Assignment or Sublease. Notwithstanding anything to the contrary contained in this Lease, in no event shall Tenant have the right to encumber by a mortgage, deed of trust, security agreement, or otherwise, any part of the Premises, the Property or City’s interest therein . Any Assignment or Sublease, without City’s prior written consent, shall be voidable at City’s option at its sole and absolute discretion; and the General Manager may terminate this Lease immediately by sending written notice to Tenant . For purposes of this Section 17 , “control”, “controlling” or a “controlling interest” shall mean direct or indirect ownership of 50% or more of all of the voting stock of a corporation or 50% or more of the legal or equitable interest in any other business entity, or the power to direct the operations of any entity (by equity ownership, contract or otherwise).
Tenant further agrees and understands that the intent and purpose of this Lease is to allow for use or uses as provided in the Basic Lease Information, and not for the purpose of creating an investment in property. Therefore, while Tenant may charge to a City -approved assignee or DocuSign Envelope ID: 1E15859B-B48E-4FA1-A4DD-76C711D4BDD2
Rev. March 2016 26
Verizon Moccasin Surge Tank Cell Site Lease #L4338
sublessee an amount in excess of that rent which is at the time being charged by City to Tenant, all rental income or other consideration received by Tenant that is attributable to the value of the leasehold estate created by this Lease over and above that Rent charged to Tenant by City shall be paid directly to City with no profit, direct or indirect, to Tenant attributable to the value of the leasehold estate created by this Lease.
17.2 Notice of Proposed Transfer
If Tenant desires to enter into an Assignment or a Sublease, then it shall give written notice (a “Notice of Proposed Transfer”) to City of its intention to do so. The Notice of Proposed Transfer shall provide in detail the terms and conditions for such proposed Assignment or Sublease and complete information, including financial statements, business history, and references about the Assignee or Sublessee and such other information about the proposed assignee or subtenant (collectively, “Transferee”) as is reasonably requested by City to make a fully informed decision about consent to Tenant’s request.
17.3 City’s Response
City shall make its election to approve or disapprove such Assignment or Sublease within twenty (20) business days after City’s receipt of the Notice of Proposed Transfer (the “Response Period”). If City approves the proposed Sublease or Assignment in writing, then Tenant shall be entitled for a period of ninety (90) days following such date to enter into the proposed Assignment or Sublease. However, any Rent or other consideration realized by Tenant under any such Assignment or Sublease in excess of the Base Rent and Additional Charges payable hereunder (or the amount thereof proportionate to the portion of the Premises subject to such Sublease) shall be paid to City after Tenant has recovered any reasonable broker’ s commissions and the reasonable cost of any improvements that Tenant has actually incurred in connection with such Sublease or Assignment.
Notwithstanding anything to the contrary in this Section 17, if any monetary or other material Event of Default by Tenant is outstanding hereunder at the time of Tenant’ s Notice of Proposed Transfer (or if any event shall have occurred which with the giving of notice or the passage of time or both would constitute such a default), then City may elect by notice to Tenant to refuse to consent to Tenant’s proposed Transfer and pursue any of its right or remedies hereunder or at law or in equity.
17.4 Effect of Sublease or Assignment
No Sublease or Assignment by Tenant nor any consent by City thereto nor any Assignment or Sublease by Tenant permitted hereunder without City’ s consent shall relieve Tenant of any obligation on its part under this Lease. Any Sublease or Assignment that is not in compliance with this Section 17 shall be void and, at City’ s option, shall constitute a material default by Tenant under this Lease. The acceptance of any Base Rent or other payments by City from a proposed Transferee shall not constitute consent to such Sublease or Assignment by City or a recognition of any Transferee, or a waiver by City of any failure of Tenant or other transferor to comply with this Section.
17.5 Assumption by Transferee
Each Transferee shall assume all obligations of Tenant under this Lease and shall be and remain liable jointly and severally with Tenant for the payment of the Rent and for the performance of all of the terms, covenants, conditions and agreements herein contained on Tenant’s part to be DocuSign Envelope ID: 1E15859B-B48E-4FA1-A4DD-76C711D4BDD2
Rev. March 2016 27
Verizon Moccasin Surge Tank Cell Site Lease #L4338
performed. No Assignment shall be binding on City unless Tenant or Trans feree shall deliver to City evidence satisfactory to City that it has obtained all permits, licenses, or other approvals required to operate as a wireless telecommunications service provider on the Premises, a counterpart of the Assignment (or other document reasonably satisfactory to the City in the event of an assignment permitted under Section 17.6 (Permitted Assignment)) and an instrument in recordable form that contains a covenant of assumption by such Transferee satisfactory in substance and form to City, and consistent with the requirements of this Section, including an express waiver of entitlement to any relocation assistance and benefits in connection with this Lease. Tenant shall Indemnify City for any and all losses arising out of any relocation assistance or benefits payable to any Transferee . The failure or refusal of such Transferee to execute such instrument of assumption shall not release such Transferee from its liability as set forth above .
Except for a permitted A ssignment to a general partner or affiliate of Tenant as provided in Section 17.6, Tenant shall reimburse City on demand for any reasonable costs that may be incurred by City in connection with any proposed Sublease or Assignment, including the costs of making investigations as to the acceptability of the proposed Transferee and legal costs incurred in connection with the granting of any requested consent.
17.6 Permitted Assignment
City agrees that Tenant shall be permitted to enter into an Assignment of this Lease or Sublease of the Premises, without City’s prior consent but with notice to City as provided below, to any entity which directly or indirectly controls, is controlled by or is under common control with, Tenant, and has a net worth of at least Ten Million Dollars ($10,000,000) (collectively, “Controlling Entity”), or to the Financing Entity, or agent of the Financing Entity to whom Tenant (i) has obligations for borrowed money or in respect or guaranties thereof, (ii) has obligations evidenced by bonds, debentures, notes or similar instruments, or (iii) has obligations under or with respect to letters of credit, bankers’ acceptances and similar facilities or in respect of guaranties thereof, if the Controlling Entity, Financing Entity or agent of the Financing Entity will use the Premises in the same manner as Tenant under this Lease and holds all licenses, permits, and other approvals necessary to lawfully operate a Communications Site on the Premises. Tenant shall use its best efforts to provide City with notice in advance of any such permitted Assignment or Sublease and in any event shall provide City with written notice no later than ten (10) days after the effective date of such permitted Assignment or Sublease. Each Assignment or Sublease authorized under this Section must be in compliance with all the requirements and conditions of Section 17.5 (Assumption by Transferee) except as expressly provided otherwise in that Section.
17.7 Co-location
(a) Prohibition on Co-location Without Landlord's Consent Co-location of facilities is prohibited except with the express written approval of City in accordance with all of the above provisions of this Section 17 , or as required by City pursuant to this Section 17.7. A “ co-located telecommunication facility ” means a telecommunicati on facility comprised of one or more antennas, dishes, equipment racks or cabinets, or similar devices owned or used by more than one public or private entity. (b) Required Co-location
Tenant acknowledges that City may require Tenant to co- loc ate its facilitie s on the
Premises with other facilities or providers or require Tenant to permit other facilities or providers to co-locate on Tenant’s facilities; provided, however, Tenant shall not be required to allow co - location within its concrete pad as shown in Exh ibit B (“Equipment Space”) . City’s land DocuSign Envelope ID: 1E15859B-B48E-4FA1-A4DD-76C711D4BDD2
Rev. March 2016 28
Verizon Moccasin Surge Tank Cell Site Lease #L4338
management policies require that proposed new communications facilities be located to minimize the impact to visual resources and wherever possible be co-located with existing facilities.
Tenant shall cooperate and use commercially reasonable efforts to facilitate co-location of future telecommunications facilities upon the Premises, excluding the Tenant’s Equipment Space; provided, however, that Tenant shall not be under any such obligation if a proposed co- location causes unreasonable interference with Tenant’s existing use of the Premises or wo uld exceed the structural capacity of Tenant’s Facilities. If no such unreasonable interference or impairment would occur upon installation of a co -locator’s equipment as reasonably determined by City and as permitted herein, then the proposed co- locator in each instance shall, as a condition precedent to any proposed co -location: (i) execute and deliver a co -location agreement on City’s required form or on a commercially reasonable form proposed by Tenant or the proposed co- locator and acceptable to City; (ii) pay all costs arising from or related to the co -location, including any and all costs incurred by Tenant to accommodate such co- location; and (iii) reimburse Tenant a commercially reasonable percentage of the unamortized costs and expenses (includi ng capital expenditures) incurred by Tenant in connection with the development, use, or occupancy of the Premises prior to the co-location. In the event of physical or frequency interference caused by the co-locator’s equipment (where the co-locator is not a government entity), Tenant may require such co-locator to power down or stop use of co- locator’s interfering equipment, and City shall cooperate with Tenant to require the co-locator to resolve such interference. (c) Existing Co-location Arrangements
Tenant represents that it has provided City with (i) a list of all co-location arrangements at the Premises that Tenant agreed to prior to the Commencement Date and (ii) cop ies of all agreements related to such co-location. The list of such co-location arrangements, if any, including the full name of the co-locating party and its equipment, is attached to this Lease as Exhibit H.
17.8 IPM Plan and Form CMD-12B-101
As a condition to any Assignment, the assignee shall execute Form CMD -12B-101 (as described in Section 29.23(d) (Non-Discrimination in City Contracts and Benefits Ordinance)) with supporting documentation and secure the San Francisco Contract Monitoring Division’s written approval of such form or acknowledgment that a waiver or exemption applied. A s a condition to any Assignment or Sublease the assignee or subtenant shall submit an IPM plan in accordance with the requirements of Section 5.2(i) (Covenant Against Use of Chemical Herbicides and Pesticides) above or obtain an exemption, through the SFPUC. Any transferee must also comply with all other provisions of this Lease, including the insurance provisions.
18. DEFAULT
18.1 Events of Default
Any of the following shall constitute an “Event of Default” by Tenant hereunder:
(a) any failure to pay any Base Rent or Additional Charges as and when due, provided Tenant shall have a period of ten (10) days from the date of written notice of such failure from City within which to cure any default in the payment of Rent; provided, however, that City shall not be required to provide such notice regarding Tenant’s failure to make such payments when due more than twice during any 12- month period, and any such failure by Tenant after Tenant has received two such notices from City in any 12- month period shall constitute a default by Tenant hereunder without any requirement on the part of City to give Tenant notice of such DocuSign Envelope ID: 1E15859B-B48E-4FA1-A4DD-76C711D4BDD2
Rev. March 2016 29
Verizon Moccasin Surge Tank Cell Site Lease #L4338
failure or an opportunity to cure except as may be required by Section 1161 of the California Code of Civil Procedure;
(b) any failure to perform or comply with any other covenant, condition or representation made under this Lease, provided Tenant shall have a period of thirty (30) days from the date of written notice of such failure from City within which to cure such default under this Lease, or, if such default is not capable of cure within such thirty (30) -day period, Tenant shall have a reasonable period to complete such cure if Tenant promptly undertakes action to cure such default within such thirty (30) -day period and thereafter diligently prosecutes the same to completion and Tenant uses its best efforts to complete such cure within sixty (60) days after written notice of default from City;
(c) any vacation or abandonment of the Premises for more than fourteen (14) consecutive days such that the Premises are no lo nger being used for the purposes set forth in Section 5.1 (Permitted Use) (City acknowledging that the Premises are to be used as an unoccupied transmission facility and, accordingly, lack of on- site personnel shall not, in and of itself, be deemed to indicate vacation or abandonment); and (d) the appointment of a receiver due to Tenant’s insolvency to take possession of all or substantially all of the assets of Tenant, or an assignment by Tenant for the benefit of creditors, or any action taken or suffered by Tenant under any insolvency, bankruptcy, reorganization, moratorium or other debtor relief act or statute, whether now existing or hereafter amended or enacted, if any such receiver, assignment or action is not released, discharged, dismissed or vacated within sixty (60) days.
18.2 Remedies
Upon the occurrence of an Event of Default by Tenant which is not cured by Tenant within the applicable grace period, if any, specified in Section 18.1 (Events of Default), City shall have the following rights and remedies in addition to all other rights and remedies available to City at law or in equity:
(a) The rights and remedies provided by California Civil Code Section 1951.2 (damages on termination for breach), including the right to terminate Tenant’s right to possession of the Premises and to recover the worth at the time of award of the amount by which the unpaid Base Rent and Additional Charges for the balance of the Term after the time of award exceeds the amount of rental loss for the same period that Tenant proves could be reasonably avoided, as computed pursuant to subsection (b) of such Section 1951.2. (b) The rights and remedies provided by California Civil Code Section 1951.4 (continuation of lease after breach and abandonment), which allows City to continue this Lease in effect and to enforce all of its rights and remedies under this Lease, including the right to recover rent as it becomes due, for so long as City does not terminate Tenant’s right to possession. Acts of maintenance or preservation, efforts to relet the Premises or the appointment of a receiver upon City’s initiative to protect its interest under this Lease shall not constitute a termination of Tenant’s right to possession. No action taken by City pursuant to this subsection shall be deemed a waiver of any default by Tenant and, notwithstanding any such subletting without termination, City may at any time thereafter elect to terminate this Lease for such previous default. During the continuance of an Event of Default, for so long as City does not terminate Tenant’s right to possession of the Premises, City shall not unreasonably withhold its consent to an Assignment or Sublease.
DocuSign Envelope ID: 1E15859B-B48E-4FA1-A4DD-76C711D4BDD2
Rev. March 2016 30
Verizon Moccasin Surge Tank Cell Site Lease #L4338
(c) The right to have a receiver appointed for Tenant upon application by City to take possession of the Premises and to apply any rental collected from the Premises and to exercise all other rights and remedies granted to City pursuant to this Lease. (d) City may cure the Event of Default at Tenant’s expense, it being understood that such performance shall not waive or cure the subject Event of Default. If City pays any sum or incurs any expense in curing the Event of Default, Tenant shall reimburse City upon demand for the amount of such payment or expense with interest at the Interest Rate from the date the sum is paid or the expense is incurred until City is reimbursed by Tenant. Any amount due City under this subsection shall constitute additional rent hereunder.
18.3 Special Administrative Charges
Without limiting City’s other rights and remedies set forth in this Lease, at law or in equity, in the event Tenant (i) constructs or installs any Tenant’s Facilities or Alteration without the written approval of City as required by Section 6 (Tenant’s Facilities) and Section 7 (Alterations) of this Lease, (ii) fails to make a repair required by Section 9 (Maintenance and Repairs) or to clear vegetation as required by Section 5.2(j) on a timely basis, (iii) enters the Property without complying with the notice and permit requirements of Section 2.2 (License; Tenant’s Access to City’s Property), ( iv) fails to provide evidence of the required insurance coverage described in Section 20 (Insurance) on a timely basis, or (v) fails to obtain prior City approval of co-location or Transfer pursuant to Section 17 , then upon written notice from City of such failure or unauthorized action, Tenant shall pay, as an Additional C harge, the respective amount specified in the table below in consideration of City’s administrative cost and expense in providing notice or performing inspections. In the event Tenant fails to remove the unauthorized Alteration and restore the Property, or fails perform the necessary repair or vegetation clearance, or fails to cease the unauthorized access or provide the necessary permit or insurance documents or fails to obtain the required approval or terminate the unauthorized co- location or Transfer, or fails to take other corrective action, if any, specified in City’s notice, as applicable, within the time period set forth in such notice and City delivers to Tenant additional written notice requesting such document or evidence of such repair, or performs additional inspections to verify compliance, then Tenant shall pay to City, as an Additional Charge, the respective amount specified in the table below for each additional written notice City delivers to Tenant requesting such corrective action.
DocuSign Envelope ID: 1E15859B-B48E-4FA1-A4DD-76C711D4BDD2
Rev. March 2016 31
Verizon Moccasin Surge Tank Cell Site Lease #L4338
Violation Lease Section
Initial
Inspection
and/or Notice
Follow-up Inspection
and/or Notice
Construction of facilities
or Alterations that are not
approved by Landlord
6 and 7 $700.00 $800.00
Failure to make required
repairs or clear
vegetation
5.2(j) and 9 $700.00 $1,000.00
Violation of
requirements regarding
access to Premises
2.2 $1,000.00 $2,000.00
Failure to
obtain/maintain
insurance
20 $600.00 $700.00
Failure to obtain prior
City approval of co -
location or Transfer
17 $2,500.00 $5,000.00
Such administrative fees shall be due and payable as Additional Charges. The Parties agree that the charges set forth in this Section represent a fair and reasonable estimate, as of the Commencement Date, of the administrative cost and expense which Landlord will incur in connection with providing notices or performing inspections as set forth above and that Landlord may reasonably increase such fees from time to time to account for inflation, but not more frequently than every five (5) years. Landlord’s right to impose the foregoing charges shall be in addition to and not in lieu of any and all other rights under this Lease, at law or in equity.
18.4 City’s Right to Cure Tenant’s Defaults
If Tenant defaults in the performance of any of its obligations under this Lease, then City may, at its sole option, remedy such default for Tenant’s account and at Tenant’s expense by providing Tenant with three (3) business days’ prior written or oral notice of City’s intention to cure such default (except that no such prior notice shall be required in the event of an emergency as determined by City). Such action by City shall not be construed as a waiver of such default or any rights or remedies of City, and nothing herein shall imply any duty of City to do any act that Tenant is obligated to perform. Tenant shall pay to City upon demand, as Additional Charges, all costs, damages, expenses or liabilities incurred by City, including reasonable attorneys’ fees, in remedying or attempting to remedy such default. Tenant’s obligations under this Section shall survive the termination of this Lease.
19. TENANT’S INDEMNITY
Tenant, on behalf of itself and its successors and assigns, shall indemnify, defend and hold harmless (“ Indemnify”) City, its Agents and Invitees, and their respective heirs, legal representatives, successors and assigns (individually and collectively, the “Indemnified Parties”), and each of them, from and against any and all liabilities, losses, costs, claims, judgments, settlements, damages, liens, fines, penalties and expenses, including direct and vicarious liability of every kind (collectively, “ Claims”), incurred in connection with or arising in whole or in part DocuSign Envelope ID: 1E15859B-B48E-4FA1-A4DD-76C711D4BDD2
Rev. March 2016 32
Verizon Moccasin Surge Tank Cell Site Lease #L4338
from: (a) injury to or death of a person, including employees of Tenant, or loss of or damage to property, occurring on or about the Premises or License Area(s) or arising in connection with the use of the Premises or License Area(s) under this Lease; (b) any default by Tenant in the observation or performance of any of the terms, covenants or conditions of this Lease to be observed or performed on Tenant’s part; (c) the use, occupancy or manner of use or occupancy of the Premises by Tenant, its Agents or Invitees or any person or entity claiming through or under any of them; (d) the condition of the Premises or any occurrence on the Premises from any cause attributable to the events described in clauses (a), (b) or (c) of this Section; or (e) any acts, omissions or negligence of Tenant, its Agents or Invitees, in, on or about the Premises or the Property; all regardless of the negligence of, and regardless of whether liability without fault is imposed or sought to be imposed on, the Indemnified Parties, except to the extent that such Indemnity is void or otherwise unenforceable under applicable law in effect on or validly retroactive to the date of this Lease and further except to the extent such Claim is caused solely by the willful misconduct or active negligence of the Indemnified Parties. The foregoing Indemnity shall include reasonable fees of attorneys, consultants and experts and related costs and City’ s costs of investigating any Claim. Tenant specifically acknowledges and agrees that it has an immediate and independent obligation to defend City and the other Indemnified P arties from any claim which actually or potentially falls within this indemnity provision even if such allegation is or may be groundless, fraudulent or false, which obligation arises at the time such claim is tendered to Tenant by City and continues a t all times thereafter. Tenant’s obligations under this Section shall survive the expiration or sooner termination of this Lease.
20. INSURANCE
20.1 Tenant’s Insurance
(a) Tenant, at no cost to the City, shall procure and keep in effect at all times during the Term, and shall cause each contractor and subcontractor performing work for Tenant at the Premises or License Areas to procure and keep in effect during the course of such work, insurance as follows:
(i) Commercial general liability insurance with limits not less than Five Million Dollars ($5,000,000) each occurrence combined single limit for bodily injury and property damage, including contractual liability, independent contractors, broad -form all perils property damage, fire damage legal liability (of not less than One Million Dollars ($1,000,000)), personal injury, products and completed operations, and explosion, collapse and underground (XCU). (ii) Worker’s Compensation Insurance in statutory amounts, with employer’s liability coverage not less than One Million Dollars ($1,000,000) each accident .
Regarding workers’ compensation, Tenant waives subrogation which any insurer of Tenant may acquire from Tenant by virtue of the payment of any loss . Tenant shall include in any contract between Tenant and a contractor for work to be performed on the Premises a provision by which the contractor waives subrogation which any insurer of the contractor may acquire from the contractor by virtu e of the payment of any workers’ compensation loss. Each workers’ compensation policy shall be endorsed with a waiver of subrogation in favor of City for all work performed by Tenant and its Agents related to this Lease or the Premises. (iii) Business automobile liability insurance with limits not less than One Million Dollars ($1,000,000) each occurrence combined single limit for bodily injury and property damage, including owned and non -owned and hired vehicles, as applicable, if Tenant uses automobiles in connection with its use of the Premises.
DocuSign Envelope ID: 1E15859B-B48E-4FA1-A4DD-76C711D4BDD2
Rev. March 2016 33
Verizon Moccasin Surge Tank Cell Site Lease #L4338
(iv) If required by City’s Risk Manager in connection with construction of any Alterations, “special form” (all risk) Builder's Risk Insurance on a replacement cost basi s, with such scope may be required by City’s Risk Manager. (b) Environmental Pollution Liability Insurance.
Tenant shall procure and maintain throughout the Term, at its expense, and shall cause any contractor performing Alterations or Hazardous Material Remediation on the Premises to procure and maintain, at its expense, pollution legal liability, environmental remediation liability and other environmental insurance, including coverage for bodily injury, sickness, disease, mental anguish or shock sustained by any person, including death; environmental damages; property damage including physical injury to or destruction of tangible property including the resulting loss of use thereof, cleanup costs, and the loss of use of tangible property that has not been physically injured or destroyed; defense costs, charges and expenses incurred in the investigation, adjustm ent of defense claims for such compensatory damages; sudden and non- sudden pollution conditions including the discharge, dispersal, release or escape of Hazardous Material into or upon the Premises, other City property, Tenant's Facilities or Alterations, the atmosphere or any watercourse or body of water, which results in environmental damages; transportation coverage for the hauling of any Hazardous Material by Tenant or Tenant’s contractors or Agents, from the Premises to the final disposal location; and first party environmental remediation that pays for the cost of cleanup and remediation of the Premises or any Tenant’s Facilities or Alterations required to comply with all applicable Laws. Such insurance shall be endorsed to provide third party disposal site coverage that covers third party bodily injury, property damage and cleanup coverage for pollution conditions emanating from a disposal site or landfill used by the Tenant or Tenant’s Agents. Tenant shall maintain limits no less than: Two Million Dollars ($ 2,000,000) per occurrence. The City and its officers, commissioners, agents, volunteers and employees shall be included as additional insureds on the policy as loss payees under the pollution legal liability/environmental remediation/cleanup liability insurance policy.
20.2 General Requirements
(a) All insurance provided for under this Lease shall be effected under valid enforceable policies issued by insurers of recognized responsibility and reasonably approved by City.
(b) Should any of the required insurance be provided under a claims -made form, Tenant shall maintain such coverage continuously throughout the term hereof and, without lapse, for a period of three (3) years beyond the expiration or termination of this Lease, to the effect that, should occurrences during the Term give rise to claims made after expiration or termination of this Lease, such claims shall be covered by such claims-made policies. (c) Should any of the required insurance be provided under a form of coverage that includes a general annual aggregate limit or provides that claims investigation or legal defense costs be included in such general annual aggregate limit, such general aggregate limit shall double the occurrence or claims limits specified above.
(d) All liability insurance policies required by this Lease shall be endorsed to:
(i) Name as additional insureds the City and County of San Francisco, its commissions, officers, agents and employees;
DocuSign Envelope ID: 1E15859B-B48E-4FA1-A4DD-76C711D4BDD2
Rev. March 2016 34
Verizon Moccasin Surge Tank Cell Site Lease #L4338
(ii) Provide that such policies are primary insurance to any other insurance available to the additional insureds, with respect to any claims arising out of this Lease; (iii) Provide that such insurance applies separately to each insured against whom claim is made or suit is brought, except with respect to the insurer’s limit of liability; (iv) Provide for severability of interests and that an act or omission of one of the named insureds which would void or otherwise reduce coverage shall not reduce or void the coverage as to any other insured, and
(v) Afford coverage for all claims based on acts, omissions, injury or damage which occurred or arose (or the onset of which occurred or arose) in whole or in part during the policy period.
(e) Each insurance policy required to be maintained by Tenant or its contractors under this Section 20 shall be issued by an insurance company licensed in the State of California and with a general policyholders’ rating of “A -” or better and a financial size ranking of “Class VIII” or higher in the most recent edition of Best’s Insurance Guide. (f) All insurance policies required to be maintained by Tenant or its contractors under this Section 20 shall be endorsed to provide written notice of cancellation for any reason, intended non-renewal, or reduction in coverage, to both Tenant and City. Tenant shall provide a copy of any notice of inte nt to cancel or materially reduce coverage, or cancellation, material reduction, or depletion of its required coverages to City within one business day of Tenant's receipt and shall take prompt action to prevent cancellation, material reduction, or depletion of coverage, reinstate or replenish the cancelled, reduced, or depleted coverage, or obtain the full coverage required by this Section 20 from a different insurer meeting the qualifications of this Section.
Notice to City shall be mailed to the address(es) for City set forth in the Basic Lease Information or such other address(es) as may be designated by City by notice to Tenant in accordance with Section 29.1 (Notices).
20.3 Proof of Insurance; Failure to Provide
On or before the Commencement Date, Tenant shall deliver to City certificates of insurance and additional insured policy endorsements from insurers evidencing the coverages required by this Lease in a form satisfactory to City, together with complete copie s of the policies promptly upon City’s request, and Tenant shall provide City with certificates thereafter at least ten (10) days before the expiration dates of expiring policies. Prior to commencement of any Alterations, Tenant shall cause its contractor to deliver to City certificates of insurance and additional insured policy endorsements from insurers evidencing the coverages required by this Lease in a form satisfactory to City, together with complete copies of the policies promptly upon City’s reques t, and Tenant shall cause its contractors to provide City with certificates thereafter at least ten (10) days before the expiration dates of expiring policies. Tenant and its contractors shall submit or cause their respective insurance brokers to submit r equested information through the Exigis insurance verification program designated by City or any successor program used by City for verification of tenant and contractor insurance coverage. If Tenant or its contractors fail to procure required insurance, or to deliver such policies, certificates or information, at its option, City may procure the same for Tenant’s account, and Tenant shall pay City the resulting cost within five (5) business days after delivery to Tenant of invoices reflecting the amounts so paid by City.
DocuSign Envelope ID: 1E15859B-B48E-4FA1-A4DD-76C711D4BDD2
Rev. March 2016 35
Verizon Moccasin Surge Tank Cell Site Lease #L4338
20.4 Lapsed Coverage
Notwithstanding anything to the contrary in this Lease, City may elect, in its sole and absolute discretion, to terminate this Lease if Tenant allows any required insurance coverage to lapse by: (i) providing Tenant writte n notice of such lapse and (ii) providing written notice of termination if Tenant fails to reinstate the lapsed coverage within three (3) business days of City’s notice of such default.
20.5 Review of Insurance Requirements
Tenant and City shall periodically review the limits and types of insurance carried pursuant to Section 20.1 (Tenant’s Insurance). If the general commercial practice in the City and County of San Francisco is to carry insurance in an amount or coverage materially greater than the amount or coverage then being carried by Tenant with respect to risks comparable to those associated with the Premises, then, at City’s option, Tenant shall increase at its sole cost the amounts or coverages carried by Tenant to conform to such general commercial practice.
20.6 No Limitation on Lease Obligations or Liability
Tenant’s compliance with the provisions of this Section shall in no way relieve or decrease Tenant’s obligations or liability under Section 19 (Tenant’s Indemnity) or 27.3 ( Tenant’s Environmental Indemnity), or any of Tenant’s other obligations or liabilities under this Lease.
20.7 Tenant’s Facilities, Alterations, and Personal Property Tenant shall be responsible, at its expense, for separately insuring Tenant’s Facilities, Alterations and Tenant’s Personal Property.
20.8 City’s Self Insurance
Tenant acknowledges that City self -insures against casualty, property damage and public liability risks. City agrees to maintain an adequate program of self- insurance for public liability risks during the Term and shall not be required to carry any third -party insurance with respect to the Property, the Premises or otherwise.
20.9 Waiver of Subrogation
Notwithstanding anything to the contrary in this Lease, City and Tenant (each a “Waiving Party”) each hereby waive any right of recovery against the other party for any loss or damage relating to the Property or any operations or contents therein, whether or not such loss is caused by the fault or negligence of such other party, to the extent such loss or damage is covered by third party insurance that is required to be purchased by the Waiving Party under this Lease or is actually covered by insurance held by the Waiving Party or its agents. Each Waiving Party agrees to obtain a waiver of subrogation rights endorsement from applic able insurance carriers issuing policies relating to the Property; provided, the failure to obtain any such endorsement shall not affect the above waiver.
DocuSign Envelope ID: 1E15859B-B48E-4FA1-A4DD-76C711D4BDD2
Rev. March 2016 36
Verizon Moccasin Surge Tank Cell Site Lease #L4338
21. LIMITATION OF CITY’S LIABILITY
21.1 Limitation of City’s Liability
City shall not be responsible for or liable to Tenant, and Tenant hereby waives all Claims against City and its Agents and releases City and its Agents from all Claims for any injury, loss or damage to any person or property in or about the Premises or any License Area created under this Lease by or from any cause whatsoever (other than to the extent caused solely by the active negligence or willful misconduct of City and its Agents), including acts or omissions of persons occupying adjoining premises or any part of the Property adjacent to or connected with the Premises; theft; burst, stopped or leaking water, gas, sewer or steam pipes; or gas, fire, oil or electricity in, on or about the Premises or the Property. Nothing herein shall relieve City from liability caused by the sole negligence or willful misconduct of City or its Agents.
21.2 Consequential Damages
Tenant expressly acknowledges and agrees that the Rent payable hereunder does not take into account any potential liability of City for any consequential or incidental damages including lost profits arisin g from the disruption to Tenant’ s Facilities or Alterations. City would not be willing to enter into this Lease in the absence of a complete waiver of liability, to the fullest extent permitted by Law, for consequential or incidental damages due to the acts or omissions of City or its Agents, and Tenant expressly assumes the risk with respect thereto. Accordingly, without limiting any indemnification obligations of Tenant or other waivers contained in this Lease and as a material part of the consideration for this Lease, Tenant fully releases, waives and discharges forever any and all claims, demands, rights, and causes of action against City and its Agents for consequential, incidental or punitive damages (including los t profits) arising out of this Lease, regardless of the cause, and whether or not due to the sole negligence or willful misconduct of City or its Agents, and covenants not to sue for such damages City, its departments, commissions, officers, directors and employees, and all persons acting by, through or under each of them.
21.3 No Relocation Assistance
This Lease creates no right in Tenant to receive any relocation assistance or payment for any
reason under the Relocation Assistance Act (California Government Co de Sections 7260 et seq.), the Uniform Relocation Assistance Act (42 U.S.C. Sections 4602 et seq.) as such acts may be amended or revised or under any existing or future law upon any termination of tenancy except as provided in Section 16 (Eminent Domain) hereof.
Tenant fully waives, releases and relinquishes forever any and all claims, demands, rights and c
auses of action that it may have against the city under any existing or future laws, for any compensation from City not otherwise provided for herein, u pon any termination of tenancy hereunder.
In connection with the releases under Sections 21.1 (Limitation of City’s Liability), 21.2 (Consequential Damages), and 21.3 (No Relocation Assistance), Tenant acknowledges that it is familiar with California Civil Code Section 1542, which reads:
A general release does not extend to claims which the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her , would have materially affected his or her settlement with the debtor or released party.
DocuSign Envelope ID: 1E15859B-B48E-4FA1-A4DD-76C711D4BDD2
Rev. March 2016 37
Verizon Moccasin Surge Tank Cell Site Lease #L4338
Tenant acknowledges that the releases contained herein include all known and unknown, disclosed and undisclosed, anticipated and unanticipated claims. Tenant realizes and acknowledges that it has agreed upon this Lease in light of this realization and, being fully aware of this situation, it nevertheless intends to waive the benefit of California Civil Code Section 1542, or any statute or other similar law now or later in effect. The releases contained herein shall survive any termination of this Lease.
22. CITY’S ACCESS TO PREMISES
22.1 City’s Access to the Premises
(a) General Access. City reserves for itself and its designated Agents, the right to enter any part of the Premises at all reasonable times upon not less than twenty-four (24) hours’ notice (except in the event of an emergency) , and the License Area without notice, for any of the following purposes:
(i) To determine whether the Premises and License Area are in good condition and to inspect the Premises (including soil borings or other Hazardous Material Investigations);
(ii) To determine whether Tenant is in compliance with its obligations hereunder and to cure or attempt to cure any such default in accordance with the provisions of Section 18.2 (Remedies);
(iii) To serve, post or keep posted any notices required or allowed under any of the provisions of this Lease;
(iv) To do any maintenance or repairs to the Premises or License Area that City has the right or the obligation, if any, to perform hereunder; and (v) To show it to any prospective purchasers, brokers, Encumbrancers or officials, or, during the last year of the Term of this Lease, exhibiting the Premises and License Area to prospective tenants or other occupants, and to post any “for sale” or “for lease” signs in connection therewith.
City acknowledges that Tenant’ s cellular equipment is highly sensitive and is subject to federal regulations restricting access to such telecommunication equipment . Accordingly, City shall not enter portions of the Premises containing such equipment (other than in the event of an emergency) unless City has given Tenant twenty -four (24) hours ’ prior notice. In the event of emergency, City shall use reasonable efforts to notify Tenant prior to such entry a nd City shall promptly advise Tenant of any such emergency entry promptly thereafter. (b) Emergency Access. In the event of any emergency, as determined by City, City may, at its sole option and without notice (provided that City shall make reasonable efforts to provide Tenant with notice when feasible in light of the exigent circumstances) enter the Premises and alter or remove Tenant’s Personal Property on or about the Premises. City shall have the right to use any and all means City considers appropriate to gain access to any portion of the Premises in an emergency. In such case, City shall not be responsible for any damage or injury to any such property, nor for the replacement of any such property and any such emergency entry shall not be deemed to be a forcible or unlawful entry onto or a detainer of, the Premises, or an eviction, actual or constructive, of Tenant from the Premises or any portion thereof.
DocuSign Envelope ID: 1E15859B-B48E-4FA1-A4DD-76C711D4BDD2
Rev. March 2016 38
Verizon Moccasin Surge Tank Cell Site Lease #L4338
(c) No Liability. City shall not be liable in any manner, and Tenant hereby waives any claims, for any inconvenience, disturbance, loss of business, nuisance or other damage arising out of City’ s entry onto the Premises, except damage resulting directly and exclusively from the gross negligence or willful misconduct of City or its Agents and not contributed to by the acts, omissions or negligence of Tenant, its Agents or Invitees. (d) No Abatement. Tenant shall not be entitled to any abatement in Rent if City exercises any rights reserved in this Section 22.
(e) Minimize Disruption . City shall use reasonable good faith efforts to conduct any activities on the Premises allowed under this Section 22.1 in a manner that, to the extent practicable, will minimize any disruption to Tenant’s use hereunder.
22.2 Pipeline and Utility Installations
Without limiting Section 22.1 (City’s Access to the Premises) above, City shall have the right at all times, to enter upon the Premises upon forty- eight (48) hours’ advance written or oral notice (except in cases of emergency as determined by City), to use , install, construct, repair, maintain, operate, replace, inspect, and remove City ’s Facilities or any other public utility facilities. City shall bear the expense of any such activities, unless the need is occasioned by the acts, omissions or negligence of Tenant, its Agents or Invitees. City shall not be responsible for any temporary loss or disruption of Tenant’ s use of the Premises occasioned by any such facility installation or other activities.
22.3 Roadways
City and its Agents shall have the right to enter upon and pass through and across the Premises on any existing or future roadways and as City otherwise determines necessary or appropriate for purposes of the City’s Facilities.
23. TENANT’S ESTOPPEL CERTIFICATES
Upon not less than twenty (20) days ’ written notice from City, Tenant shall execute, acknowledge and deliver to City or to any party designated by City, a certificate of Tenant stating:
(a) that Tenant has accepted the Premises (or, if Tenant has not done so, that Tenant has not accepted the Premi ses and specifying the reasons therefor), (b) the Commencement Date and Expiration Date of this Lease, (c) that this Lease is unmodified and in full force and effect (or, if there have been modifications, that the Lease is in full force and effect as modified and stating the modifications), (d) whether or not there are then existing any defenses against the enforcement of any of the obligations of Tenant under this Lease (and if so, specifying the same), (e) whether or not there are then existing obligations of City under this Lease (and if so specifying the same), and (f) the dates, if any, to which the Base Rent and Additional Charges have been paid.
24. RULES AND REGULATIONS
Tenant shall faithfully comply with the rules and regulations attached to this Lease as Exhibit G and any and all reasonable modifications, additions thereto or other reasonable rules, regulations and instructions, written or oral which may be established during the Term by City with respect to use of any part of the Property.
DocuSign Envelope ID: 1E15859B-B48E-4FA1-A4DD-76C711D4BDD2
Rev. March 2016 39
Verizon Moccasin Surge Tank Cell Site Lease #L4338
25. SECURITY DEPOSIT
Tenant shall pay to City upon full execution of this Lease, as security for the faithful performance of all terms, covenants and conditions of this Lease, a security deposit in the amount designated in Section 1 (Basic Lease Information). The security deposit may be paid in cash or an irrevocable letter of credit from an issuing bank and in form acceptable to City. Tenant agrees that City may (but shall not be required to) apply the security deposit in whole or in part to remedy any damage to the Property caused by Tenant, its Agents or Invitees, or any failure of Tenant to pay any Rent or perform any other terms, covenants or conditions contained herein, without waiving any of City’s other rights and remedies hereunder or at law or in equity and without any obligation. Should City use any portion of the security deposit to cure any default by Tenant hereunder, Tenant shall replenish the security deposit to the original amount within ten (10) days of City’s written notice. City’s obligations w ith respect to the security deposit are solely that of debtor and not trustee. City shall not be required to keep the security deposit separate from its general funds, and Tenant shall not be entitled to interest on such deposit. The amount of the security deposit shall in no way limit the liabilities of Tenant under any provision of this Lease.
26. SURRENDER OF PREMISES
26.1 Surrender Plan
Not less than one hundred twenty (120) days before the Expiration Date, Tenant shall submit to the SFPUC for its review and reasonable approval a proposed surrender plan, outlining the steps Tenant intends to take to restore the Premises and License Area to their original condition and surrender the site to City in accordance with this Section 26. The surrender plan shall include (i) an inventory of all Tenant’s Facilities, Alterations, Tenant’s Personal Property, and debris on the Premises and License Area; (ii) the proposed method of removal of all such items; (iii) a plan and schedule for removal; (iv) measures to protect any facilities owned by City or other tenants that may be damaged as a result of Tenant’s removal of any Tenant’s Facilities, Tenant’s Personal Property or Alterations; (v) measures to repair and restore the Premises as a result of removal of any such items; and (vi) any Tenant’s Facilities, Alterations, or Tenant’s Personal Property that Tenant requests permission to leave on the Premises or License Area. The surrender plan shall be subject to the written approval of the General Manager at his or her sole an d absolute discretion.
Within sixty (60) days after receipt of such plan, the SFPUC will notify Tenant of any modifications or additions to the plan required by the SFPUC. City reserves the right to require Tenant to attend a Project Review meeting to discuss the proposed surrender plan.
26.2 Surrender
Upon the Expiration Date or other termination of this Lease, Tenant shall peaceably quit and surrender to City the Premises and License Area in good order and their original condition, normal wear and tear excepted, free of debris and hazards, after having made the last necessary repair required of Tenant under this Section (damage caused by casualty or condemnation excepted). The Premises shall be surrendered free and clear of all liens and encumbrances created or suffered by, through or under Tenant. Tenant shall, immediately before the Expiration Date or other termination of this Lease, remove all of Tenant’ s Personal Property from the Property and remove any other Tenant’s Facilities, including Tenant’s conduits, and Alterations from the Property (excepting only those Tenant’s Facilities and Alterations that City agrees in writing are to remain part of the Premises or License Area pursuant to Section 7.2 (Title to and Removal of Tenant’s Facilities and A lterations), and repair any damage resulting from the removal. In connection with any such repair, Tenant shall obtain any and all necessary permits and approvals, including any environmental permits, and execute any manifests or other documents necessary to DocuSign Envelope ID: 1E15859B-B48E-4FA1-A4DD-76C711D4BDD2
Rev. March 2016 40
Verizon Moccasin Surge Tank Cell Site Lease #L4338
complete the demolition, removal, or restoration work required by this Lease. Tenant’s obligations under this Section shall survive the expiration or other termination of this Lease. Any items of Tenant’s property which remain in the Premises or the License Area after the expiration or sooner termination of this Lease may, at the option of City, be deemed abandoned and in such case may be disposed of by City in accordance with California Civil Code Section 1980 et seq. or any other manner allowed by law.
If Tenant fails to surrender the Premises or License Area to City on the expiration or sooner ter
mination of the Lease as required by this Section, Tenant shall Indemnify City against all resulting Claims, including Claims incurred by a succeeding tenant resulting from such failure.
26.3 Quitclaim Deed
Concurrently with the surrender of the Premises as provided above, Tenant agrees, if requested by City, to execute, acknowledge and deliver to City a quitclaim deed to the Premises and any other instrument reasonably requested by City to evidence or otherwise e ffect the termination of Tenant’s leasehold estate hereunder and to effect such transfer or vesting of title to the Alterations or other improvements or equipment which are to remain part of the Premises as provided herein.
27. HAZARDOUS MATERIALS
27.1 Definitions
As used herein, the following terms shall have the meanings set forth below:
(a) “Environmental Laws ” shall mean any federal, state, local or administrative law, rule, regulation, order or requirement relatin g to industrial hygiene, environmental conditions or Hazardous Materials, whether now in effect or hereafter adopted. (b) “Hazardous Material ”
shall mean any material that, because of its
quantity, concentration or physical or chemical characteristics, is at any time now or hereafter deemed by any federal, state or local governmental authority to pose a present or potential hazard to human health, welfare or safety or to the environment. Hazardous Material includes, any material or substance defined as a “hazardous substance,” or “pollutant” or “contaminant” pursuant to the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (“CERCLA,” also commonly known as the “Superfund” law), as amended, (42 U.S.C.
Sections 9601 et seq.) or pursuant to Section 25316 of the California Health & Safety Code; any “hazardous waste” listed pursuant to Section 25140 of the California Health & Safety Code; and petroleum, including crude oil or any fraction thereof, natural gas or natural gas liquids. (c) “Investig ate and Remediate” shall mean the undertaking of any activities to determine the nature and extent of Hazardous Material that may be located in, on, under or about the Property or that has been, is being or threatens to be Released into the environment, and to clean up, remove, contain, treat, stabilize, monitor or otherwise control such Hazardous Material. (d) “Release” when used with respect to Hazardous Material shall include any actual or imminent spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into or inside the Property, or in, on, under or about the Property or the environment.
DocuSign Envelope ID: 1E15859B-B48E-4FA1-A4DD-76C711D4BDD2
Rev. March 2016 41
Verizon Moccasin Surge Tank Cell Site Lease #L4338
27.2 No Hazardous Material in Premises
Tenant covenants and agrees that neither Tenant nor any of its Agents or Invitees shall cause or permit any Hazardous Material to be brought upon, kept, used, stored, generated, disposed of or Released in, on or about the Premises or any other part of the Property, or transported to or from the Property in violation of Environmental Laws, except that Tenant may use small quantities of Hazardous Materials, including backup batteries, as needed for backup power, air conditioning and routine cleaning and maintenance of Tenant’s Facilities which are customarily used for backup power and routine cleaning and maintenance of such equipment; necessary quantities of fuel for an emergency generator if City consents in writing to the use of such a generator, and necessary quantities of pesticides and herbicides in accordance with the requirements of Section 5.2(i) (Restrictions on Use of Chemical Herbicides and Pesticides) so long as all such materials are handled and used in compliance with Environmental Laws. Tenant shall immediately notify Landlord if and when Tenant learns or has reason to believe there has been any Release of Hazardous Materials on or about the Premises or the Property.
27.3 Tenant’s Environmental Indemnity
If Tenant breaches any of its obligations contained in Section 27.2 (No Hazardous Material in Premises), or if any act, omission or negligence of Tenant or any of its Agents or Invitees results in any contamination of the Premises or any other part of the Property or in a Release of Hazardous Material from, on, about, in, or beneath any part of the Premises or the Property or the violation of any Environmental Law, then in any such event Tenant, on behalf of itself and its successors and assigns, shall Indemnify City and the Indemnified Parties from and against any and all Claims (including damages for decrease in value of the Premises or the Property, the loss or restriction of the use of rentable or usable space or of any amenity of the Premises or the Property and sums paid in settlement of claims, attorneys’ fees, consultants’ fees and experts’ fees) arising during or after the Term of this Lease relating to such Release or violation of Environmental Laws; provided, however, Tenant shall not be liable for any Claims to the extent such Release was caused by the sole negligence or willful misconduct of City o r its Agents. The foregoing Indemnity includes costs incurred in connection with any activities required to Investigate and Remediate any Hazardous Material brought onto the Premises or the Property by Tenant or any of its Agents or Invitees and to restor e the Property to its condition prior to Tenant’s introduction of such Hazardous Material or the correction of any violation of Environmental Laws. Tenant specifically acknowledges and agrees that it has an immediate and independent obligation to defend City and the other Indemnified Parties from any claim which actually or potentially falls within this indemnity provision even if such allegation is or may be groundless, fraudulent or false, which obligation arises at the time such claim is tendered to Tenant by City and continues at all times thereafter. Without limiting the foregoing, if Tenant or any of its Agents or Invitees cause the Release of any Hazardous Material on, about, in, or beneath the Premises or Property, then in any such event Tenant shall, immediately, at no expense to City, take any and all necessary actions to return the Premises or the Property, as applicable, to the condition existing prior to the Release of any such Hazardous Materials on the Property or otherwise abate the Release in accordance with all Environmental Laws, except to the extent such Release was caused by the sole negligence of City or its Agents. Tenant shall afford City a full opportunity to participate in any discussions with governmental regulatory agencies regarding any settlement agreement, cleanup or abatement agreement, consent decree, or other compromise or proceeding involving Hazardous Material.
DocuSign Envelope ID: 1E15859B-B48E-4FA1-A4DD-76C711D4BDD2
Rev. March 2016 42
Verizon Moccasin Surge Tank Cell Site Lease #L4338
28. SPECIAL PROVISIONS
28.1 Protection of Tenant Against Interference
If City grants any right for others to use the Property during the Term and such party causes measurable interference that materially impairs Tenant’s proper operation of its then existing, well- maintained, City -approved Communications Site as contemplated by this Lease, City shall reasonably cooperate with Tenant to attempt to resolve the interference issue, subject to pre - existing rights and the provisions of this Section 28 . If, as a result of such interference, it is necessary to alter the City -approved Tenant’s Facilities or Tenant’ s City -approved Alterations located on the Premises, Tenant shall notify City of such interference, which notice shall include a detailed description of the necessary Alterations and a cost estimate therefor. Upon receipt of such notice, City shall have the right to term inate this Lease upon thirty (30) days’ prior written notice to Tenant. If City elects not to terminate this Lease, Tenant may, at its election, either (i) make the Alterations described in such notice, in compliance with Section 7.1 (Tenant’ s Alterations) of this Lease, or (ii) terminate this Lease upon thirty (30) days’ prior written notice to City. If Tenant elects to make such Alterations, Tenant shall offset the actual, reasonable and documented cost incurred by Tenant to complete such Alterations against Base Rent as it comes due, up to a maximum amount equal to the lesser of (A) the cost estimate contained in Tenant’ s notice to City described above, or (B) $5,000. Notwithstanding any other provision in this Lease, in no event shall City be liable to Tenant for any harm to Tenant caused by any interference resulting from the future use of the Property by City or its tenants.
28.2 Protection Against Tenant’s Interference
Tenant shall operate at the Premises in a manner that complies with all noninterference rules of the Federal Communications Commission and other applicable Laws and will not cause interference to any equipment existing on the Property as of the date of installation or modification of Tenant’s Facilities provided such existing equipment is being operated in accordance with the applicable license and applicable Laws. Tenant agrees to reasonably cooperate with other tenants, if any, at the Property to resolve any issues of interference in an equitable fashion and in accordance with applicable Laws and this Section. Tenant will not permit its equipment or use of the Premises as a Communications Site to cause interference with or impairment of City’s 911 Public Communications Safety System or Citywide 800 MHz Radio System or other communication or computer equipment used by City or any of its Agents on the Property. If Tenant makes any Alterations, such changes shall not cause interference to any facilities existing on the Property as of the date of such modifications or to any of City’s Facilities. Any such interference by Tenant shall be deemed a material breach of this Lease, and Tenant shall, upon notice from City, be responsible for terminating interference causing measurable harmful physical, line of sight or radio frequency interf erence as provided herein . Tenant shall have the right to power down the Tenant equipment shown to be the interfering equipment (and only powering up such equipment for intermittent testing) within thirty (30) days after Tenant receives written notice of such interference, as may be extended if Tenant commences the cure within the thirty (30) day period and thereafter diligently pursues it to completion. The Parties acknowledge that continuing interference may cause irreparable injury and, in the event any such interference does not cease within such thirty (30) day period as may be extended as provided herein, City shall have the right to bring an action to enjoin such interference or to require Tenant to remove the interfering Equipment, at City’s election.
DocuSign Envelope ID: 1E15859B-B48E-4FA1-A4DD-76C711D4BDD2
Rev. March 2016 43
Verizon Moccasin Surge Tank Cell Site Lease #L4338
29. GENERAL PROVISIONS
29.1 Notices
Any notice given under this Lease shall be effective only if in writing and given by delivering the notice in person, or by sending it via first class mail or certified mail with a return receipt requested or reliable commercial same- day or next -business-day courier service, return receipt requested, with postage prepaid, to: (a) Tenant at Tenant’s address set forth in the Basic Lease Information, or at any place where Tenant or any agent, officer or employee of Tenant may be personally served if sent subsequent to Tenant ’s vacating, deserting, abandoning or surrendering the Premises; (b) Landlord at City’ s addresses set forth in the Basic Lease Information; or (c) to such other address(es) as either City or Tenant may designate as its new address(es) for such purpose by notice given to the other in accordance with the provisions of this Section. Any correctly addressed notice sent by a method that provides confirmation of delivery or attempted or rejected delivery shall be deemed to have been given or received upon the earliest of confirmed attempted, rejected or actual delivery. Neither party may give official or binding notice by facsimile or email.
29.2 No Implied Waiver
No failure by either party to insist upon the strict performance of any obligation of the other under this Lease or to exercise any right, power or remedy arising out of a breach thereof, irrespective of the length of time for which such failure continues, shall constitute a waiver of such breach. No acceptance by any Agent of City of full or partial Base Rent or Additional Charges during the continuance of any such breach, and no acceptance of the keys to or possession of the Premises prior to the expiration of the Term by any Agent of City, shall constitute a waiver of such breach or of City’s right to demand strict compliance with such term, covenant or condition or operate as a surrender of this Lease. No express written waiver by either party of any default or the performance of any provision hereof shall af fect any other default or performance, or cover any other period of time, other than the default, performance or period of time specified in such express waiver. One or more written waivers of a default or the performance of any provision hereof by either party shall not be deemed to be a waiver of a subsequent default or performance.
The consent of City given in any instance under the terms of this Lease shall not relieve Tenant of any obligation to secure the consent of City in any other or future instance under the terms of this Lease.
29.3 Amendments
Neither this Lease nor any term or provisions hereof may be changed, waived, discharged or terminated orally, and no breach thereof shall be waived, altered or modified, except by a written instrument signed by both Parties.
29.4 Authority
If Tenant signs as a corporation or a partnership, each of the persons executing this Lease on behalf of Tenant does hereby covenant and warrant that Tenant is a duly authorized and existing entity, that Tenant has and is qualified to do business in California, that Tenant has full right and authority to enter into this Lease, and that each and all of the persons signing on behalf of Tenant are authorized to do so. Upon City’s request, Tenant shall provide City with evidence reasonably satisfactory to City confirming the foregoing representations and warranties.
DocuSign Envelope ID: 1E15859B-B48E-4FA1-A4DD-76C711D4BDD2
Rev. March 2016 44
Verizon Moccasin Surge Tank Cell Site Lease #L4338
29.5 Interpretation of Lease
The words “City” or “Landlord” and “Tenant” as used herein shall include the plural as well as the singular. If there is more than one Tenant, the obligations and liabilitie s under this Lease imposed on Tenant shall be joint and several. As used herein, the term “Agents” when used with respect to either party shall include the agents, employees, officers, contractors, subcontractors and representatives of such party, and the term “Invitees” when used with respect to either party shall include the clients, customers, invitees, guests, licensees, assignees or subtenants of such party. The captions preceding the articles and sections of this Lease and in the table of contents have been inserted for convenience of reference only and such captions shall in no way define or limit the scope or intent of any provision of this Lease. This L ease has been negotiated at arm’s length and between persons sophisticated and knowledgeable in the matters dealt with herein and shall be interpreted to achieve the intents and purposes of the Parties, without any presumption against the party responsible for drafting any part of this Lease. Provisions in this Lease relating to number of days shall be calendar days, unless otherwise specified, provided that if the last day of any period to give notice, reply to a notice or to undertake any other action occurs on a Saturday, Sunday or a bank or City holiday, then the last day for undertaking the action or giving or replying to the notice shall be the next succeeding business day. Use of the word “including,” “includes” or similar words shall not be construed to limit any general term, statement, or other matter in this Lease, whether or not language of non- limitation, such as “without limitation” or similar words, are used.
29.6 City Consents, Approvals, Elections and Options
Whenever this Lease requires or permits the giving by City or the SFPUC of any consent, approval, election, or option, the General Manager of the SFPUC, or his or her designee, shall be authorized to provide, make, or exercise such consent, approval, election, or option, except as otherwise provided by applicable law, including City’s Charter, or by the SFPUC’s Real Estate Guidelines, as amended or replaced from time to time. Unless otherwise provided in this Lease, whenever City’s or the SFPUC’s consent or approval is required to be obtained by Tenant pursuant to this Lease, City or the SFPUC may give or withhold such consent or appr oval at its sole and absolute discretion. No consent, approval, election, or option shall be effective unless given, made, or exercised in writing.
29.7 Successors and Assigns
Subject to the provisions of this Lease relating to assignment and subletting, the t erms, covenants and conditions contained in this Lease shall bind and inure to the benefit of City and Tenant and, except as otherwise provided herein, their personal representatives, successors and assigns; provided, however, that upon the sale, assignment or transfer by City named herein (or by any subsequent landlord) of its interest in the Property as owner or lessee, including any transfer by operation of law, City (or any subsequent landlord) shall be relieved from all subsequent obligations and liabilities arising under this Lease subsequent to such sale, assignment or transfer.
29.8 Brokers
Neither party has had any contact or dealings regarding the leasing of the Premises, or any communication in connection therewith, through any licensed real estate broker or other person who could claim a right to a commission or finder’s fee in connection with the lease contemplated herein except as identified in the Basic Lease Information, whose commission, if any is due, shall be paid pursuant to a separate written agreement between such broker and the party through which such broker contracted. In the event that any other broker or finder perfects a c laim for a DocuSign Envelope ID: 1E15859B-B48E-4FA1-A4DD-76C711D4BDD2
Rev. March 2016 45
Verizon Moccasin Surge Tank Cell Site Lease #L4338
commission or finder’s fee based upon any such contact, dealings or communication, the party through whom the broker or finder makes a claim shall be responsible for such commission or fee and shall Indemnify the other party from all Claims incurred by the indemnified party in defending against the same. The provisions of this Section shall survive any expiration or termination of this Lease.
29.9 Severability
If any provision of this Lease or the application thereof to any person, entity or circumstance shall be invalid or unenforceable, the remainder of this Lease, or the application of such provision to persons, entities or circumstances other than those as to which it is invalid or unenforceable, shall not be affected thereby, and each other provision of this Lease shall be valid and enforceable to the fullest extent permitted by law, except to the extent that enforcement of this Lease without the invalidated provision would be unreasonable or inequitable under all the circumstances or would frustrate a fundamental purpose of this Lease.
29.10 Governing Law
This Lease shall be governed by and construed and enforced in accordance with the laws of the State of California and City’s Charter.
29.11 Entire Agreement
The exhibits referenced in and attached to this instrument are made a part of this Lease.
This instrument contains the entire agreement between the Parties and all prior written or oral negotiations, understandings and agreements are merged herein. The P arties further intend that this Lease shall constitute the complete and exclusive statement of its terms and that no extrinsic evidence whatsoever (including prior drafts hereof and changes therefrom) may be introduced in any judicial, administrative or other legal proceeding involving this Lease. Tenant hereby acknowledges that neither City nor City’s Agents have made any representations or warranties with respect to the Premises, the Property or this Lease except as expressly set forth herein, and no rights, easements or licenses are or shall be acquired by Tenant by implication or otherwise unless expressly set forth herein.
29.12 Attorneys’ Fees
In the event that either City or Tenant fails to perform any of its obligations under this Lease or in the event a dispute arises concerning the meaning or interpretation of any provision of this Lease, the defaulting party or the non- prevailing party in such dispute, as the case may be, shall pay the prevailing party reasonable attorneys’ and experts’ fees and costs, and all court costs and other costs of action incurred by the prevailing party in connection with the prosecution or defense of such action and enforcing or establishing its rights hereunder (whether or not such action is prosecuted to a judgment). For purposes of t his Lease, reasonable attorneys’ fees of the City’s Office of the City Attorney shall be based on the fees regularly charged by private attorneys with the equivalent number of years of experience in the subject matter area of the law for which the City Attorney’s services were rendered who practice in the City of San Francisco in law firms with approximately the same number of attorneys as employed by the Office of the City Attorney.
The term “attorneys’ fees” shall also include all such fees incurred with respect to appeals, mediations, arbitrations, and bankruptcy proceedings, and whether or not any action is brought with respect to the matter for which such fees were incurred. The term “costs” shall mean the costs and expenses of counsel to the Parties, which may include printing, duplicating and other DocuSign Envelope ID: 1E15859B-B48E-4FA1-A4DD-76C711D4BDD2
Rev. March 2016 46
Verizon Moccasin Surge Tank Cell Site Lease #L4338
expenses, air freight charges, hiring of experts, and fees billed for law clerks, paralegals, and others not admitted to the bar but performing services under the supervision of an attorney.
29.13 Holding Over
For purposes of this Lease, Tenant shall be deemed to “Hold Over” or be “Holding Over” if after the expiration or sooner termination of this Lease, the Premises and/or License Area continue to be occupied by, under, or on behalf of Tenant or any Transferee claiming under or through Tenant or by Tenant’s Facilities or the facilities of any such Transferee (except any facilities that City has specifically acknowledged in writing may remain on the Premises after Lease expiration or termination). The duration of such Holding Over is referred to in this Lease as the “ Holdover Period. ” Any Holding Over after the expiration of the Term with the express consent of City shall be construed to automatically extend the Term of this Lease on a month -to- month basis with ongoing adjustments in Base Rent on each Adjustment Date as set forth in Section 4.2 (Adjustments in Base Rent) or at such other Base Rent as determined by City as part of its consent, and shall otherwise be on the terms and conditions herein specified so far as applicable (except for those pertaining to the Term and any Extension Options). Any Holding Over without City’s consent shall constitute a default by Tenant and a tenancy at sufferance, at a Base Rent equal to 150% of the Base Rent in effect at the start of the Holdover Period (plus ongoing adjustments on each Adjustment Date as provided in Section 4.2 and entitle City to exercise any or all of its remedies available under this Lease, at law or in equity, notwithstanding that City may elect to accept one or more payments of Rent, and whether or not such amounts are at the holdover rate specified above or the rate in effect at the end of the Term of this Lease. Any failure by Tenant to surrender the Premises in accordance with Section 26 (Surrender of Premises) shall constitute continuing possession for purposes hereof. Tenant acknowledges that the foregoing provisions shall not serve as permission for the Tenant to Hold Over, nor serve to extend the Term of this Lease.
29.14 Time of Essence
Time is of the essence with respect to all provisions of this Lease in which a definite time for performance is specified.
29.15 Cumulative Remedies
All rights and remedies of either P arty set forth in this Lease shall be cum ulative, except as may otherwise be provided in this Lease.
29.16 Survival of Indemnities
Termination of this Lease shall not affect the right of either Party to enforce any and all indemnities and representations and warranties given or made to the other Party under this Lease, nor shall it affect any provision of this Lease that expressly states it shall survive termination of this Lease.
29.17 Signs
Tenant agrees that it will not erect or maintain, or permit to be erected or maintained, any signs, notices or graphics upon or about the Premises which are visible in or from public corridors or other portions of any common areas of the Property or from the exterior of the Premises, without obtaining the prior written consent and approval of City, which City may withhold or grant in its DocuSign Envelope ID: 1E15859B-B48E-4FA1-A4DD-76C711D4BDD2
Rev. March 2016 47
Verizon Moccasin Surge Tank Cell Site Lease #L4338
sole discretion; provided, however, that Tenant shall label Tenant’s Facilities as required under Section 5.2(d).
29.18 Relationship of the Parties
City is not, and none of the provisions in this Lease shall be deemed to render City, a partner in Tenant’s business, or joint venturer or member in any joint enterprise with Tenant.
Neither party shall act as the agent of the other party in any respect hereunder. This Lease is not intended nor shall it be construed to create any third party beneficiary rights in any third party, unless otherwise expressly provided.
29.19 Light and Air
Tenant covenants and agrees that no diminution of light, air or view by any structure that may hereafter be erected (whether or not by City) shall entitle Tenant to any reduction of the Base Rent or Additional Charges under this Lease, result in any liability of City to Tenant, or in any other way affect this Lease or Tenant’s obligations hereunder, except as described in Section 28.1 (Protection of Tenant Against Interference).
29.20 Recording
Tenant agrees that it shall not record this Lease nor any memorandum or short form hereof in the Official Records of any county of the State of California.
29.21 Non-Liability of City Officials, Employees and Agents No elective or appointive board, commission, member, officer, employee or other Agent of City shall be personally liable to Tenant, its successors and assigns, in the event of any default or breach by City or for any amount which may become due to Tenant, its successors and assigns, or for any obligation of City under this Agreement.
29.22 Wages and Working Conditions
Any undefined, initially capitalized term used in this Section shall have the meaning given to such term in San Francisco Adm inistrative Code Section 23.61. Tenant shall require its Contractors and Subcontractors performing (i) labor in connection with a “public work” as defined under California Labor Code Section 1720 et seq. (which includes certain construction, alteration, maintenance, demolition, installation, repair, carpet laying, or refuse hauling work if paid for in whole or part out of public funds) or (ii) Covered Construction, at the Premises to (1) pay workers performing such work not less than the Prevailing Rate of Wages, (2) provide the same hours, working conditions and benefits as in each case are provided for similar work performed in San Francisco County, and (3) employ Apprentices in accordance with San Francisco Administrative Code Section 23.61 (collectively, “Prevailing Wage Requirements”). Tenant agrees to cooperate with the City in any action or proceeding against a Contractor or Subcontractor that fails to comply with the Prevailing Wage Requirements.
Tenant shall include, and shall require its subtenan ts, and Contractors and Subcontractors (regardless of tier), to include the Prevailing Wage Requirements and the agreement to cooperate in City enforcement actions in any Construction Contract with specific reference to San Francisco Administrative Code Section 23.61. Each such Construction Contract shall name the City and County of San Francisco, affected workers, and employee organizations formally representing affected workers as third party beneficiaries for the limited purpose of enforcing the Prevailing DocuSign Envelope ID: 1E15859B-B48E-4FA1-A4DD-76C711D4BDD2
Rev. March 2016 48
Verizon Moccasin Surge Tank Cell Site Lease #L4338
Wage Requirements, including the right to file charges and seek penalties against any Contractor or Subcontractor in accordance with San Francisco Administrative Code Section 23.61. Tenant’s failure to comply with its obligations under this Section shall constitute a material breach of this Lease. A Contractor’s or Subcontractor’s failure to comply with this Section will enable the City to seek the remedies specified in San Francisco Administrative Code Section 23.61 against the breaching party. For the current Prevailing Rate of Wages, see www.sfgov.org/olse or call the City’s Office of Labor Standards Enforcement at 415-554 6235.
Tenant shall also pay, and shall require its subtenants, and Contractors and Subcontractors (regardless of tier) to pay, the Prevailing Rate of Wage for the following activities on the Premises as set forth in and to the extent required by San Francisco Administrative Code Chapter 21C: a Public Off -Street Parking Lot, Garage or Automobile Storage Facility (as defined in Se ction 21C.3), a Show (as defined in Section 21C.4), a Special Event (as defined in Section 21C.8), Broadcast Services (as defined in Section 21C.9), Commercial Vehicles, Loading and Unloading for Shows and Special Events (as defined in Section 21C.10), and Security Guard Services for Events (as defined in Section 21C.11).
29.23 Non-Discrimination in City Contracts and Benefits Ordinance (a) Covenant Not to Discriminate. In the performance of this Lease, Tenant agrees not to discriminate against any employee of, any City employee working with Tenant, or applicant for employment with Tenant, or against any person seeking accommodations, advantages, facilities, privileges, services, or membership in all business, social, or other establishments or organizations, on the basis of the fact or perception of a person’s race, color, creed, religion, national origin, ancestry, age, height, weight, sex, sexual orientation, gender identity, domestic partner status, marital status, disability or Acquired Immune Deficiency Syndrome or HIV status (AIDS/HIV status), or association with members of such protected classes, or in retaliation for opposition to discrimination against such classes. (b) Subleases and Other Subcontracts. Tenant shall include in all subleases and other subcontract s relating to the Premises a non -discrimination clause applicable to such Subtenant or other subcontractor in substantially the form of Subsection (a) above. In addition, Tenant shall incorporate by reference in all subleases and other subcontracts the pr ovisions of Sections 12B.2(a), 12B.2(c)-(k), and 12C.3 of the San Francisco Administrative Code and shall require all subtenants and other subcontractors to comply with such provisions. Tenant’s failure to comply with the obligations in this subsection shall constitute a material breach of this Lease. (c) Non-Discrimination in Benefits . Tenant does not as of the date of this Lease and will not during the term of this Lease, in any of its operations in San Francisco, on real property owned by City, or where th e work is being performed for the City or elsewhere within the United States, discriminate in the provision of bereavement leave, family medical leave, health benefits, membership or membership discounts, moving expenses, pension and retirement benefits or travel benefits, as well as any benefits other than the benefits specified above, between employees with domestic partners and employees with spouses, and/or between the domestic partners and spouses of such employees, where the domestic partnership has been registered with a governmental entity pursuant to state or local law authorizing such registration, subject to the conditions set forth in Section 12B.2(b) of the San Francisco Administrative Code. (d) Condition to Lease. As a condition to this Lease, Tenant shall execute the “Chapter 12B Declaration: Nondiscrimination in Contracts and Benefits” form (Form CMD-12B- 101) with supporting documentation and secure the approval of the form by the San Francisco Contracts Monitoring Division (“CMD”). Tenant hereby represents that prior to execution of this DocuSign Envelope ID: 1E15859B-B48E-4FA1-A4DD-76C711D4BDD2
Rev. March 2016 49
Verizon Moccasin Surge Tank Cell Site Lease #L4338
Lease, (i) Tenant executed and submitted to the CMD Form CMD -12B-101 with supporting documentation, and (ii) the CMD approved such form or acknowledged in writing that a waiver or exemption applied.
(e) Incorporation of Administrative Code Provisions by Reference. The provisions of Chapters 12B and 12C of the San Francisco Administrative Code relating to non-discrimination by Parties contracting for the lease of City property are incorporated in this Section by reference and made a part of this Agreement as though fully set forth herein. Tenant shall comply fully with and be bound by all of the provisions that apply to this Lease under such Chapters of the Administrative Code, including the remedies provided in such Chapters. Without limiting the foregoing, Tenant understands that pursuant to Section 12B.2(h) of the San Francisco Administrative Code, a penalty of Fifty Dollars ($50) for each person for each calendar day during which such person was discriminated aga inst in violation of the provisions of this Lease may be assessed against Tenant and/or deducted from any payments due Tenant.
29.24 Requiring Health Benefits for Covered Employees
Unless exempt, Tenant agrees to comply fully with and be bound by all of the prov isions of the Health Care Accountability Ordinance (HCAO), as set forth in San Francisco Administrative Code Chapter 12Q, including the remedies provided, and implementing regulations, as the same may be amended from time to time. The provisions of Chapter 12Q are incorporated herein by reference and made a part of this Lease as though fully set forth. The text of the HCAO is available on the web at http://www.sfgov.org/olse/hcao. Capitalized terms used in this Section and not defined in this Lease shall have the meanings assigned to such terms in Chapter 12Q. (a) For each Covered Employee, Tenant shall provide the appropriate health benefit set forth in Section 12Q.3 of the HCAO. If Tenant chooses to offer the health plan option, such health plan shall meet the minimum standards set forth by the San Francisco Health Commission.
(b) Notwithstanding the above, if the Tenant is a small business as defined in Section 12Q.3(d) of the HCAO, it shall have no obligation to comply with subsection (a) above. (c) Tenant’s failure to comply with the HCAO shall constitute a material breach of this Lease. City shall notify Tenant if such a breach has occurred. If, within thirty (30) days after receiving City’s written notice of a breach of this Lease for violating the HCAO, Tenant fails to cure such breach or, if such breach cannot reasonably be cured within such period of thirty (30) days, Tenant fails to commence efforts to cure within such period, or thereafter fails diligently to pursue such cure to completion, City shall have the right to pursue the remedies set forth in Section 12Q.5(f)(1-5). Each of these remedies shall be exercisable individually or in combination with any other rights or remedies available to City.
(d) Any Subcontract entered into by Tenant shall require the Subcontractor to comply with the requirements of the HCAO and shall contain contractual obligations substantially the same as those set forth in this Section. Tenant shall notify City's Purchasing Department when it enters into such a Subcontract and shall certify to the Purchasing Department that it has notified the Subcontractor of the obligations under the HCAO and has imposed the requirements of the HCAO on Subcontractor through the Subcontract. Each Tenant shall be respons ible for its Subcontractors’ compliance with this Chapter. If a Subcontractor fails to comply, the City may pursue the remedies set forth in this Section against Tenant based on the Subcontractor’s failure to comply, provided that City has first provided Tenant with notice and an opportunity to obtain a cure of the violation.
DocuSign Envelope ID: 1E15859B-B48E-4FA1-A4DD-76C711D4BDD2
Rev. March 2016 50
Verizon Moccasin Surge Tank Cell Site Lease #L4338
(e) Tenant shall not discharge, reduce in compensation, or otherwise discriminate against any employee for notifying City with regard to Tenant’ s compliance or anticipated compliance with the requirements of the HCAO, for opposing any practice proscribed by the HCAO, for participating in proceedings related to the HCAO, or for seeking to assert or enforce any rights under the HCAO by any lawful means.
(f) Tenant represents and warrants that it is not an entity that was set up, or is being used, for the purpose of evading the intent of the HCAO. (g) Tenant shall keep itself informed of the current requirements of the HCAO. (h) Tenant shall provide reports to the City in accordance with any reporting standards promulgated by the City under the HCAO, including reports on Subcontractors and Subtenants, as applicable.
(i) Tenant shall provide City with access to records pertaining to compliance with HCAO after receiving a written request from City to do so and being provided at least five (5) business days to respond.
(j) City may conduct random audits of Tenant to ascertain its compliance with HCAO. Tenant agrees to cooperate with City when it conducts such audits. (k) If Tenant is exempt from the HCAO when this Lease is executed because its amount is less than Twenty -Five Thousand Dollars ($25,000), but Tenant later enters into an agreement or agreements that cause Tenant's aggregate amount of all agreements with City to reach Seventy-Five Thousand Dollars ($75,000), all the agreements shall be thereafter subject to the HCAO. This obligation arises on the effective date of the agreement that causes the cumulative amount of agreements between Tenant and the Contracting Department to be equal to or greater than Seventy-Five Thousand Dollars ($75,000) in the fiscal year.
29.25 Notification of Limitations on Contributions
Through its execution of this Lease, Tenant acknowledges that it is familiar with Section 1.126 of the San Francisco Campaign and Governmental Conduct Code, which prohibits any person who contracts with the City for the selling or leasing of any land or building to or from the City whenever such transaction would require the approval by a City elective officer, the board on which that City elective officer serves, or a board on which an appointee of that individual serves, from making any campaign contribution to (1) the City elective officer, (2) a candidate for the office held by such individual, or (3) a committee controlled by such individual or candidate, at any time from the commencement of negotiations for the contract until the later of either the termination of negotiations for such contract or six months after the date the contract is approved.
Tenant acknowledges that the foregoing restriction applies only if the contract or a combination or series of contracts approved by the same individual or board in a fiscal year have a total anticipated or actual value of $ 100,000 or more. Tenant further acknowledges that the prohibition on contributions applies to each Tenant; each member of Tenant's board of directors, and Tenant’s chief executive officer, chief financial officer and chief operating officer; any person with an ownership interest of more than ten percent ( 10%) in Tenant; any subcontractor listed in the contract; and any committee that is sponsored or controlled by Tenant. Additionally, Tenant acknowledges that Tenant must inform each of the persons described in the preceding sentence of the prohibitions contained in Section 1.126. Tenant further agrees to provide to City the names of each person, entity or committee described above.
DocuSign Envelope ID: 1E15859B-B48E-4FA1-A4DD-76C711D4BDD2
Rev. March 2016 51
Verizon Moccasin Surge Tank Cell Site Lease #L4338
29.26 Reserved
29.27 MacBride Principles – Northern Ireland
The City urges companies doing business in Northern Ireland to move toward resolving em
ployment inequities and encourages them to abide by the MacBride Principles as expressed in San Francisco Administrative Code Section 12F.1 et seq. The City also urges San Francisco companies to do business with corporations that abide by the MacBride Principles. Tenant acknowledges that it has read and understands the above statement of the City concerning doing business in Northern Ireland.
29.28 Conflicts of Interest
T
hrough its execution of this Lease, Tenant acknowledges that it is familiar with the provisions of (i) San Francisco Charter Sections 15.103; (ii) Article III, Chapter 2, San Francisco Campaign and Governmental Conduct Code; and (iii) California Government Code Section 87100 et seq. and Section 1090 et seq., and certifies that it does not know of any facts that would constitute a violation of said provision, and agrees that if Tenant becomes aware of any such fact during the term of this Lease, Tenant shall immediately notify the City.
29.29 Drug-Free Workplace
Tenant acknowledges that pursuant to the Federal Drug- Free Workplace Act of 1989, the unlawful manufacture, distribution, possession or use of a controlled substance is prohibited on City premises. Tenant agrees that any violation of this prohibition by Tenant, its employees, agents or assigns shall be deemed a material breach of this Lease.
29.30 Tropical Hardwood and Virgin Redwood Ban
The City urges companies not to import, purchase, obtain or use for any purpose, any tropical hardwood, tropical hardwood wood product, virgin redwood, or virgin redwood wood product. Except as expressly permitted by the application of Sections 802(b) and 803(b) of the San Francisco Environment Code, Tenant shall not provide any items to the construction of any Alterations, or otherwise in the performance of this Lease which are tropical hardwoods, tro pical hardwood wood products, virgin redwood, or virgin redwood wood products. In the event Tenant fails to comply in good faith with any of the provisions of Chapter 8 of the San Francisco Environment Code, Tenant shall be liable for liquidated damages for each violation in any amount equal to Tenant’s net profit on the contract, or five percent (5%) of the total amount of the contract dollars, whichever is greater.
29.31 Prohibition of Tobacco Sales and Advertising
Tenant acknowledges and agrees that no advertising or sale of cigarettes or tobacco products is allowed on the Premises. This advertising prohibition includes the placement of the name of a company producing cigarettes or tobacco products or the name of any cigarette or tobacco product in any promotion of any event or product.
29.32 Prohibition of Alcoholic Beverage Advertising
Tenant acknowledges and agrees that no advertising of alcoholic beverages is allowed on the Premises. For purposes of this section, “alcoholic beverage” shall be defined as set for th in California Business and Professions Code Section 23004, and shall not include cleaning solutions, DocuSign Envelope ID: 1E15859B-B48E-4FA1-A4DD-76C711D4BDD2
Rev. March 2016 52
Verizon Moccasin Surge Tank Cell Site Lease #L4338
medical supplies and other products and substances not intended for drinking. This advertising prohibition includes the placement of the name of a company producing alcoholic beverages or the name of any alcoholic beverage in any promotion of any event or product.
29.33 Sunshine Ordinance; Public Records Law
Tenant under stan
ds and agrees that the City’ s Sunshine Ordinance (San Francisco Administrative Code Cha pter 67) and the State Public Records Law ( Gov’t Code Sections 6250 et seq.), apply to this Lease and any and all records, information, and materials submitted to the City in connection with this Lease. Accordingly, any and all such records, information a nd materials may be subject to public disclosure in accordance with the City’s Sunshine Ordinance and the State Public Records Law. Nothing in this provision requires the disclosure of a private person’s or organization’s net worth or other proprietary financial data submitted for qualification for a contract, lease, agreement or other benefit until and unless that person or organization is awarded the contract, lease, agreement or benefit. Information provided which is covered by this Section will be made available to the public upon request.
29.34 Food Waste Reduction Ordinance
T
enant agrees to comply fully with and be bound by all of the applicable provisions of the Food Service Waste Reduction Ordinance, as set forth in the San Francisco Environment Code, Chapter 16, including the remedies provided therein, and implementing guidelines and rules. The provisions of Chapter 16 are incorporated herein by reference and made a part of this Lease as though fully set forth herein. This provision is a material term of this Lease. By entering into this Lease, Tenant agrees that if it breaches this provision, City will suffer actual damages that will be impractical or extremely difficult to determine. Without limiting City’s other rights and remedies, Tenant agrees that the sum of One Hundred Dollars ($100.00) liquidated damages for the first breach, Two Hundred Dollars ($200.00) liquidated damages for the second breach in the same year, and Five Hundred Dollars ($500.00) liquidated damages for subsequent breaches in the same year is a reasonable estimate of the damage that City will incur based on the violation, established in light of the circumstances existing at the time this Lease was made. Such amounts shall not be considered a penalty, but rather agreed monetary damages sustained by City because of Tenant’s failure to comply with this provision.
29.35 Packaged Water
Tenant will comply with San Francisco Environment Code Chapter 24 ( “Chapter 24”).
Tenant may not sell, provide , or otherwise distribut e Packaged Water, as defined in Chapter 24 (including bottled water), in the performance of this Lease or on City property unless Tenant obtains a waiver from City’s Department of the Environment. If Tenant violates this requirement, City may exercise all remedies in this Lease and the Director of City’ s Department of the Environment may impose administrative fines as set forth in Chapter 24.
29.36 Criminal History in Hiring and Employment Decisions (a) Unless exempt, Tenant agrees to comply with and be bound by all of the provisions of San Francisco Administrative Code Chapter 12T (Criminal History in Hiring and Employment Decisions; “Chapter 12 T”), which are hereby incorporated as may be amended from time to time, with respect to applicants and employees of Tenant who would be or are performing work at the Premises.
DocuSign Envelope ID: 1E15859B-B48E-4FA1-A4DD-76C711D4BDD2
Rev. March 2016 53
Verizon Moccasin Surge Tank Cell Site Lease #L4338
(b) Tenant shall incorporate by reference the provisions of Chapter 12T in all subleases of some or all of the Premises, and shall require all subtenants to comply with such provisions. Tenant’s failure to comply with the obligations in this subsection shall constitute a material breach of this Lease.
(c) Tenant and subtenants shall not inquire about, require disclosure of, or if such information is received base an Adverse Action on an applicant’s or potential applicant for employment, or employee’s: (1) Arrest not leading to a Conviction, unless the Arrest is undergoing an active pending criminal investigation or trial that has not yet been resolved; (2) participation in or completion of a diversion or a deferral of judgment program; (3) a Conviction that has been judicially dismissed, expunged, voided, invalidated, or otherwise rendered inoperative; (4) a Conviction or any other adjudication in the juvenile justice system; (5) a Conviction that is more than seven years old, from the date of sentencing; or (6) information pertaining to an offense other than a felony or misdemeanor, such as an infraction.
(d) Tenant and subtenants shall not inquire about or require applicants, potential applicants for employment, or employees to disclose on any employment application the facts or details of any conviction history, unresolved arrest, or any matter identified in subsection (c) above. Tenant and subtenants shall not require such disclosure or make such inquiry until either after the first live interview with the person, or after a conditional offer of employment. (e) Tenant and subtenants shall state in all solicitations or advertisements for employees that are reasonably likely to reach persons who are reasonably likely to seek employment with Tenant or subtenant at the Premises, that the Tenant or subtenant will consider for employment qualified applicants with criminal histories in a manner consistent with the requirements of Chapter 12T.
(f) Tenant and subtenants shall post the notice prepared by the Office of Labor Standards Enforcement (“ OLSE”), available on OLSE’s website, in a conspicuous place at the Premises and at other workplaces within San Francisco where interviews for job opportunities at the Premises occur . The notice shall be posted in English, Spanish, Chinese, and any language spoken by at least 5% of the employees at the Premises or other workplace at which it is posted. (g) Tenant and subtenants understand and agree that upon any failure to comply with the requirements of Chapter 12T, the City shall have the right to pursue any rights or remedies available under Chapter 12T or this Lease, including but not limited to a penalty of $50 for a second violation and $100 for a subsequent violation for each employee, applicant or other person as to whom a violation occurred or continued, termination or suspension in whole or in part of this Lease.
(h) If Tenant has any questions about the applicability of Chapter 12T, it may contact the City’s Real Estate Division for additional information. City’s Real Estate Division may consult with the Director of the City’s Office of Contract Administration who may also grant a waiver, as set forth in Section 12T.8.
29.37 Local Hiring Policy for Tenant’s Facilities and Alterations Any undefined, initially-capitalized term used in this Section shall have the meaning given to such term in San Francisco Administrative Code Section 23.62 (the “ Local Hiring Requirements”). Improvements and Alterations are subject to the Local Hiring Req uirements unless the cost for such work is (i) estimated to be less than $750,000 per building permit or (ii) meets any of the other exemptions in the Local Hiring Requirements. Tenant agrees that it DocuSign Envelope ID: 1E15859B-B48E-4FA1-A4DD-76C711D4BDD2
Rev. March 2016 54
Verizon Moccasin Surge Tank Cell Site Lease #L4338
shall comply with the Local Hiring Requirements to the extent applicable. Before starting any Tenant Improvement Work or any Alteration, Tenant shall contact City’s Office of Economic Workforce and Development (“OEWD”) to verify if the Local Hiring Requirements apply to the work (i.e., whether the work is a “Covered Project”).
Tenant shall include, and shall require its subtenants to include, a requirement to comply with the Local Hiring Requirements in any contract for a Covered Project with specific reference to San Francisco Administrative Code Section 23.62. Each such contract shall name the City and County of San Francisco as a third party beneficiary for the limited purpose of enforcing the Local Hiring Requirements, including the right to file charges and seek penalties. Tenant shall cooperate, and require its subtenants to cooperate, with the City in any action or proceeding against a contractor or subcontractor that fails to comply with the Local Hiring Requirements when required.
Tenant’s failure to comply with its obligations under this Section shall constitute a material breach of this Lease. A contractor’s or subcontractor’s failure to comply with this Section will enable the City to seek the remedies specified in San Francisco Administrative Code Section 23.62 against the breaching party.
29.38 Conflicts of Interest
Through its execution of this Lease, Tenant acknowledges that it is familiar with the provisions of Article III, Chapter 2 of City’s Campaign and Governmental Conduct Code, and California Government Code Section 87100 et seq. and Section 1090 et seq., and certifies that it does not know of any facts that would constitute a violation of those provisions, and agrees that if Tenant becomes aware of any violation during the Term, Tenant will immediately notify City.
29.39 Cooperative Drafting
This Lease has been drafted through a cooperative effort of both Parties, and both Parties have had an opportunity to have the Lease reviewed and revised by legal counsel. No party shall be considered the drafter of this Lease, and no presumption or rul e that an ambiguity shall be construed against the party drafting the clause shall apply to the interpretation or enforcement of this Lease.
29.40 Counterparts
This Lease may be executed in two or more counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same instrument.
29.41 Contractor Vaccination Requirement
(a) Tenant acknowledges that it has read the requirements of the 38th Supplement to Mayoral Proclamation Declaring the Existence of a Local Emergency (“Emergency Declaration”), dated February 25, 2020, and the Contractor Vaccination Policy for City Contractors issued by the City Administrator (“Contractor Vaccination Policy”), as those documents may be amended from time to time. A copy of the Contractor Vaccination Policy can be found at https://sf.gov/confirm-vaccine-status-your-employees-and-subcontractors.
Any undefined, initially-capitalized term used in this Section has the meaning given to that term in the Contractor Vaccination Policy.
DocuSign Envelope ID: 1E15859B-B48E-4FA1-A4DD-76C711D4BDD2
Rev. March 2016 55
Verizon Moccasin Surge Tank Cell Site Lease #L4338
(b) A Contract subject to the Emergency Declaration is an agreement between the City and any other entity or individual and any subcontract under such agreement, where Covered Employees of the contractor or subcontractor under that agreement work in-person with City employees in connection with the work or services performed under the agreement at a facility owned, leased, or controlled by the City. Such agreements include, but are not limited to, professional services contracts, general services contracts, public works contracts, and grants. A Contract includes such agreements currently in place or entered into during the term of the Emergency Declaration. A Contract does not include an agreement with a state or federal governmental entity or agreements that does not involve the City paying or receiving funds. (c) Tenant has read the Contractor Vaccination Policy. In accordance with the Emergency Declaration, if this License is or becomes a Contract as defined in the Contractor Vaccination Policy, Tenant agrees that:
(i) Where applicable, Tenant shall ensure it complies with the requirements of the Contractor Vaccination Policy pertaining to Covered Employees, as they are defined under the Emergency Declaration and the Contractor Vaccination Policy, and insure such Covered Employees are fully vaccinated for COVID-19 or obtain an exemption based on medical or religious grounds; and
(ii) If Tenant grants Covered Employees an exemption based on medical or religious grounds, Tenant will promptly notify City by completing and submitting the Covered Employees Granted Exemptions Form (“Exemptions Form”), which can be found at https://sf.gov/confirm-vaccine-status-your-employees-and-subcontractors (navigate to “Exemptions” to download the form).
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS LEASE,
THE PARTIES ACKNOWLEDGE THAT NO OFFICER OR EMPLOY EE OF CITY
HAS AUTHORITY TO COMMIT CITY TO THIS LEASE UNLESS AND UNTIL A RESOLUTION OF THE CITY’S PUBLIC UTILITIES COMMISSION SHALL HAVE BEEN
DULY ADOPTED APPROVING THIS LEASE AND AUTHORIZING APPROPRIATE CITY OFFICERS TO CARRY OUT THE TRANSACTIONS CONTEMPL ATED HEREBY.
THEREFORE, ANY OBLIGATIONS OR LIABILITIES OF CITY HEREUNDER ARE
CONTINGENT UPON, AND SUBJECT TO, DUE ADOPTION OF SUCH RESOLUTION,
AND THIS LEASE SHALL BE NULL AND VOID IF SUCH RESOLUTION IS NOT ADOPTED BY THE CITY’S PUBLIC UTILITIES COMMISSIO N, IN ITS SOLE AND ABSOLUTE DISCRETION, AND IN ACCORDANCE WITH CITY’S CHARTER AND ALL OTHER APPLICABLE LAWS. APPROVAL OF THE TRANSACTIONS CONTEMPLATED
BY THIS LEASE BY ANY DEPARTMENT, COMMISSION, OR AGENCY OF CITY SHALL NOT BE DEEMED TO IMPLY THAT SUCH RESOLUTION BY THE CITY’S PUBLIC
UTILITIES COMMISSION WILL BE ADOPTED NOR WILL ANY SUCH APPROVAL CREATE ANY BINDING OBLIGATIONS ON CITY.
[SIGNATURES ON FOLLOWING PAGE]
DocuSign Envelope ID: 1E15859B-B48E-4FA1-A4DD-76C711D4BDD2
Rev. March 2016 56
Verizon Moccasin Surge Tank Cell Site Lease #L4338
City and Tenant have executed this Lease as of the last date written below.
CITY:
CITY AND COUNTY OF SAN FRANCISCO,
a municipal corporation
By: _____________________________
DENNIS J. HERRERA
General Manager
San Francisco Public Utilities Commission
Date: _________________________
APPROVED BY:
San Francisco Public Utilities Commission
Pursuant to Resolution No. ____________
Adopted _________________________
TENANT:
PINNACLES CELLULAR, INC., d/b/a
VERIZON WIRELESS,
a Delaware corporation
By: _____________________________
Its: _____________________________
Date: _________________________
By: _____________________________
Its: _____________________________
Date: _________________________
APPROVED AS TO FORM:
DAVID CHIU
City Attorney
By: _________________________
Shari Geller Diamant
Deputy City Attorney
DocuSign Envelope ID: 1E15859B-B48E-4FA1-A4DD-76C711D4BDD2 Senior Real Estate Manager
Jun 1, 2022
Exhibit A
EXHIBIT A
Aerial View of City’s Property
[Attached]
DocuSign Envelope ID: 1E15859B-B48E-4FA1-A4DD-76C711D4BDD2 !
!
!
PUC PAR. 272
PUC PAR. 271
PUC PAR. 272
PUC PAR. 271
West Portal Rd.
Gravel Access Road
GravelAc
cessRoad
MOCCASIN
SURGE SHAFT
!I
Drawing No.:Scale: 1 inch = 40 feet
Date: 05/03/2022
Drawn By: J. MONTGOMERY
Chk'd By: K.BOLTER
PROJECT: W:\Surveys\Jobs\MA - Moccasin Area\2022\22029 - Moccasin Verizon Expansion Exhibit\GIS\Exhibit Maps\MA-G22029-00.mxd PRINT DATE: 5/3/2022 TIME: 3:47:14 PM SHEET SIZE: 8.5in. x 11in. 0 40
Feet
PARCEL BOUNDARIES
TRANSPORTATION
POWER DISTRIBUTION
LEGEND
Lease Area
SFPUC Parcels
Base Map Aerial Imagery Source; Distribution
Lidar Project, Quantum Spatial, 8/12/2021.
MA-G22029-00
Paved Rd.
Underground Comm / Fiber
Overhead Power Distribution
Unpaved Rd.
!(!(
!(
!(
!(
!(
!(
!(
!( ^_^_
§¨¦5
""þ108
£¤101
""þ88
§¨¦5
§¨¦580
§¨¦680
""þ99
""þ99
§¨¦880
""þ108
""þ49
""þ49
""þ140
""þ120
""þ132
""þ17
§¨¦80
""þ4
MAP
LOCATION
TRACY
SONORA
MERCED
STOCKTON
MARIPOSASAN
JOSE
MOCCASIN
MODESTO
SAN
FRAN-
CISCO
WALNUT
CREEK
YOSEMITE
EXHIBIT A - L4338
MAP OF PREMISES
HETCH HETCHY PARCEL NO. 271 & 272
LESSEE: PINNACLES CELLULAR, Inc.
d/b/a VERIZON WIRELESS
DocuSign Envelope ID: 1E15859B-B48E-4FA1-A4DD-76C711D4BDD2
Exhibit B
EXHIBIT B
Description of Premises
A portion of that certain real property located in Tuol umne County, California, described in that certain deed, recorded May 3, 1922, in Book 83, at Page 585, of the Official Records of the County of Tuolumne, commonly known as SFPUC Parcel No. 271; and a portion of that certain real property located in Tuolumne County, California, described in that certain deed, recorded October 8, 1926, in Book 91, at Page 293, of the Official Records of the County of Tuolumne, commonly known as SFPUC Parcel No. 272, which portions are approximately depicted on the attached Exhibit A.
DocuSign Envelope ID: 1E15859B-B48E-4FA1-A4DD-76C711D4BDD2
Exhibit C
EXHIBIT C
Approved Plans
[See next page]
DocuSign Envelope ID: 1E15859B-B48E-4FA1-A4DD-76C711D4BDD2
OUR MISSION: To provide our customers with high-quality, efficient and reliable water, power and sewer services in a manner that values environmental and community interests and sustains the resources entrusted to our care.
PO Box 160
Moccasin, CA 95347
T 209.989.2000
F 209.989.2104
Junction of Hwy 49 and Hwy 120
March 31, 2022
Via Email Only
Ginbar Ketema
Verizon Wireless
[email protected]
Re: Moccasin Drawing Review:
Dear Ginbar Ketema:
Hetch Hetchy Water and Power has reviewed the drawings for Moccasin – Project ID: 20141087663 with an Issue Status Date of 05/04/20. We have no exceptions to the project drawings and are accepted.
If you have any questions or concerns, please contact me at (209) 989-2578 or at [email protected].
Sincerely,
Adam B. Mazurkiewicz
Operations and Maintenance Manager
Hetch Hetchy Regional Water System
ecc: Jonathan Mendoza, SFPUC Real Estate
Moccasin Records
DocuSign Envelope ID: 1E15859B-B48E-4FA1-A4DD-76C711D4BDD2 T-1
veriZonwireless
WIRELESS GROUP INC.
MOCCASIN
OFF OLD PRIEST GRADE
MOCCASIN, CA 95347
CA3 PROJECT ID: 20141087663
PS LOCATION #: 300648
ADAPTIVE RE-USE
ENGINEERING
Craig Horner, PE 84674
3112 LEATHA WAY
SACRAMENTO, CA 95821
[email protected]
05/04/20
wirelessonZveri
PROJECT INFORMATIONVICINITY MAP
GENERAL NOTES
PROJECT DESCRIPTION
DIRECTIONS TO SITE FROM VERIZON
CODE COMPLIANCE
SHEET INDEX
T-1
A-1
A-2
A-3
C-1
®
SPECIAL INSPECTION
MOCCASIN
OFF OLD PRIEST GRADE, MOCCASIN, CA 95347
A-4
NORTH
A-5
S-1
S-2
S-3
E-1
E-2
E-3
A-6
S-4
DocuSign Envelope ID: 1E15859B-B48E-4FA1-A4DD-76C711D4BDD2 DocuSign Envelope ID: 1E15859B-B48E-4FA1-A4DD-76C711D4BDD2 1746.267
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
OO
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
O/H
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
P
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
COAX
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
HYBRID
A-1
NORTH
veriZonwireless
WIRELESS GROUP INC.
MOCCASIN
OFF OLD PRIEST GRADE
MOCCASIN, CA 95347
CA3 PROJECT ID: 20141087663
PS LOCATION #: 300648
ADAPTIVE RE-USE
ENGINEERING
Craig Horner, PE 84674
3112 LEATHA WAY
SACRAMENTO, CA 95821
[email protected]
05/04/20
NORTH
DocuSign Envelope ID: 1E15859B-B48E-4FA1-A4DD-76C711D4BDD2 O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
COAX
COAX
COAX
COAX
HYBRID
HYBRID
HYBRID
A-2
NORTH
veriZonwireless
WIRELESS GROUP INC.
MOCCASIN
OFF OLD PRIEST GRADE
MOCCASIN, CA 95347
CA3 PROJECT ID: 20141087663
PS LOCATION #: 300648
ADAPTIVE RE-USE
ENGINEERING
Craig Horner, PE 84674
3112 LEATHA WAY
SACRAMENTO, CA 95821
[email protected]
05/04/20
COAX COAX
HYBRID
FENCE LINE
COAX CABLE
HYBRID CABLE
LEASE AREA BOUNDARY
DocuSign Envelope ID: 1E15859B-B48E-4FA1-A4DD-76C711D4BDD2 A-3
veriZonwireless
WIRELESS GROUP INC.
MOCCASIN
OFF OLD PRIEST GRADE
MOCCASIN, CA 95347
CA3 PROJECT ID: 20141087663
PS LOCATION #: 300648
ADAPTIVE RE-USE
ENGINEERING
Craig Horner, PE 84674
3112 LEATHA WAY
SACRAMENTO, CA 95821
[email protected]
05/04/20
4 6
5 3
2 1
3 5
4 2
1 7
6 5
3 2
1 NORTH
NORTH
NORTH
8 9
4 7
7 6
10 10
DocuSign Envelope ID: 1E15859B-B48E-4FA1-A4DD-76C711D4BDD2
XXX XXX XXX X X XX X XX X X
X X X XX X X XX X X X
XXXX XXXX XXXX
X
HYBRIDHYBRID
SBNHH-1D65B
SBNHH-1D65B
COAX
COAX COAX COAX
HYBRID
HYBRID HYBRID
HYBRID HYBRID HYBRID
COAXCOAXCOAX
COAX COAX COAX COAX
HYBRID HYBRID HYBRIDCOAX COAX COAX COAX
HYBRIDHYBRID COAXCOAXCOAX
HYBRID HYBRID HYBRIDCOAX COAX COAX COAX
SBNHH-1D65B
SBNHH-1D65B
SBNHH-1D65B
SBNHH-1D65B
SBNHH-1D65B
SBNHH-1D65B
SBNHH-1D65B
SBNHH-1D65B
SBNHH-1D65B
SBNHH-1D65B
SBNHH-1D65B
A-4
veriZonwireless
WIRELESS GROUP INC.
MOCCASIN
OFF OLD PRIEST GRADE
MOCCASIN, CA 95347
CA3 PROJECT ID: 20141087663
PS LOCATION #: 300648
ADAPTIVE RE-USE
ENGINEERING
Craig Horner, PE 84674
3112 LEATHA WAY
SACRAMENTO, CA 95821
[email protected]
05/04/20
DocuSign Envelope ID: 1E15859B-B48E-4FA1-A4DD-76C711D4BDD2 A-5
veriZonwireless
WIRELESS GROUP INC.
MOCCASIN
OFF OLD PRIEST GRADE
MOCCASIN, CA 95347
CA3 PROJECT ID: 20141087663
PS LOCATION #: 300648
ADAPTIVE RE-USE
ENGINEERING
Craig Horner, PE 84674
3112 LEATHA WAY
SACRAMENTO, CA 95821
[email protected]
05/04/20
DocuSign Envelope ID: 1E15859B-B48E-4FA1-A4DD-76C711D4BDD2
X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X
X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X
X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X
X X X X X X
X X X X X X
X X X X X X
X X X X X
X X X X X
X X X X X
XXXXXX
XXXXXX
XXXXXX
XXXXX
XXXXX
XXXXX
A-6
veriZonwireless
WIRELESS GROUP INC.
MOCCASIN
OFF OLD PRIEST GRADE
MOCCASIN, CA 95347
CA3 PROJECT ID: 20141087663
PS LOCATION #: 300648
ADAPTIVE RE-USE
ENGINEERING
Craig Horner, PE 84674
3112 LEATHA WAY
SACRAMENTO, CA 95821
[email protected]
05/04/20
DocuSign Envelope ID: 1E15859B-B48E-4FA1-A4DD-76C711D4BDD2 S-1
veriZonwireless
WIRELESS GROUP INC.
MOCCASIN
OFF OLD PRIEST GRADE
MOCCASIN, CA 95347
CA3 PROJECT ID: 20141087663
PS LOCATION #: 300648
ADAPTIVE RE-USE
ENGINEERING
Craig Horner, PE 84674
3112 LEATHA WAY
SACRAMENTO, CA 95821
[email protected]
05/04/20
DocuSign Envelope ID: 1E15859B-B48E-4FA1-A4DD-76C711D4BDD2 S-2
veriZonwireless
WIRELESS GROUP INC.
MOCCASIN
OFF OLD PRIEST GRADE
MOCCASIN, CA 95347
CA3 PROJECT ID: 20141087663
PS LOCATION #: 300648
ADAPTIVE RE-USE
ENGINEERING
Craig Horner, PE 84674
3112 LEATHA WAY
SACRAMENTO, CA 95821
[email protected]
05/04/20
DocuSign Envelope ID: 1E15859B-B48E-4FA1-A4DD-76C711D4BDD2 S-3
veriZonwireless
WIRELESS GROUP INC.
MOCCASIN
OFF OLD PRIEST GRADE
MOCCASIN, CA 95347
CA3 PROJECT ID: 20141087663
PS LOCATION #: 300648
ADAPTIVE RE-USE
ENGINEERING
Craig Horner, PE 84674
3112 LEATHA WAY
SACRAMENTO, CA 95821
[email protected]
05/04/20
NORTH
DocuSign Envelope ID: 1E15859B-B48E-4FA1-A4DD-76C711D4BDD2 S-4
veriZonwireless
WIRELESS GROUP INC.
MOCCASIN
OFF OLD PRIEST GRADE
MOCCASIN, CA 95347
CA3 PROJECT ID: 20141087663
PS LOCATION #: 300648
ADAPTIVE RE-USE
ENGINEERING
Craig Horner, PE 84674
3112 LEATHA WAY
SACRAMENTO, CA 95821
[email protected]
05/04/20
DocuSign Envelope ID: 1E15859B-B48E-4FA1-A4DD-76C711D4BDD2 G
G
G
G
G
G
G
G
G
G
G
G
G
G
G
G
G
G
G
G
G
G
G
G
G
G
G
G
G
G
G
G
G
G
G
G
G
G
G
G
G
G
G
G
G
G
G
G
G
G
G
G
G
G
G
G
G
G
G
G
G
G
G
G
G
G
G
G
G
G
G
G
G
G
G
G
G
G
G
G
G
G
G
G
G
G
G
G
G
G
G
G
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
O
G G G G G G G G G G G G G
G
G
GGG
G G G G
G
E-1
LEGEND
G
NORTH
veriZonwireless
WIRELESS GROUP INC.
MOCCASIN
OFF OLD PRIEST GRADE
MOCCASIN, CA 95347
CA3 PROJECT ID: 20141087663
PS LOCATION #: 300648
ADAPTIVE RE-USE
ENGINEERING
Craig Horner, PE 84674
3112 LEATHA WAY
SACRAMENTO, CA 95821
[email protected]
05/04/20
DocuSign Envelope ID: 1E15859B-B48E-4FA1-A4DD-76C711D4BDD2 E-2
veriZonwireless
WIRELESS GROUP INC.
MOCCASIN
OFF OLD PRIEST GRADE
MOCCASIN, CA 95347
CA3 PROJECT ID: 20141087663
PS LOCATION #: 300648
ADAPTIVE RE-USE
ENGINEERING
Craig Horner, PE 84674
3112 LEATHA WAY
SACRAMENTO, CA 95821
[email protected]
05/04/20
DocuSign Envelope ID: 1E15859B-B48E-4FA1-A4DD-76C711D4BDD2 E-3
·
·
·
·
veriZonwireless
WIRELESS GROUP INC.
MOCCASIN
OFF OLD PRIEST GRADE
MOCCASIN, CA 95347
CA3 PROJECT ID: 20141087663
PS LOCATION #: 300648
ADAPTIVE RE-USE
ENGINEERING
Craig Horner, PE 84674
3112 LEATHA WAY
SACRAMENTO, CA 95821
[email protected]
05/04/20
DocuSign Envelope ID: 1E15859B-B48E-4FA1-A4DD-76C711D4BDD2
Exhibit C
EXHIBIT C-1
Tenant’s Existing Facilities
(As-Built Plans pursuant to Section 6 of the Lease)
[Attached]
DocuSign Envelope ID: 1E15859B-B48E-4FA1-A4DD-76C711D4BDD2 DocuSign Envelope ID: 1E15859B-B48E-4FA1-A4DD-76C711D4BDD2
Exhibit D
EXHIBIT D
Confirmation of Commencement Date
[Attached]
DocuSign Envelope ID: 1E15859B-B48E-4FA1-A4DD-76C711D4BDD2
Exhibit D
NOTICE OF COMMENCEMENT DATE AND EXPIRATION DATE
[Date]
Attn: Real Estate Director
Real Estate Services Division
San Francisco Public Utilities Commission
525 Golden Gate Avenue, 10th Floor
San Francisco, California 94102
RE: Acknowledgement of Commencement Date and Expiration Date, in the Lease between the City and County of San Francisco, as Landlord, and PINNACLES CELLULAR, INC., dba VERIZON WIRELESS, as Tenant, for the lease of a portion of the Surge Tank and property located in Moccasin, California, County of Tuolumne
Dear Real Estate Director:
This letter will confirm that for all purposes of the Lease, the Commencement Date (as def
ined in the Lease) is ______________, 20__, and the Expiration Date is __________ ____, 20___.
Please acknowledge your acceptance of this letter by signing and returning a copy of this let
ter.
Very truly yours,
_________________________________
By: ___________________________
Title: ___________________________
Accepted and Agreed:
By: __________________________
Rosanna Russell
Real Estate Director
Dated: ________________________
DocuSign Envelope ID: 1E15859B-B48E-4FA1-A4DD-76C711D4BDD2
Exhibit E
EXHIBIT E
Intentionally Omitted
DocuSign Envelope ID: 1E15859B-B48E-4FA1-A4DD-76C711D4BDD2
Exhibit F
EXHIBIT F
Intentionally Omitted
DocuSign Envelope ID: 1E15859B-B48E-4FA1-A4DD-76C711D4BDD2
Exhibit G
EXHIBIT G
Rules and Regulations
1. Landlord reserves the right to refuse access to any persons Landlord in good faith judges to be a threat to the safety, reputation, or property of the Property and/or its occupants.
2. Tenant shall not make, suffer or permit litter on the Property except in appropriate receptacles for that purpose.
3. For security purposes, Tenant shall not place its own locks or bolts on any City gate or door or alter any SFPUC gate, fence or door. To gain access to the Premises, Tenant shall comply with the access requirements in Section 2.2(b) (Tenant’s Access to the Property).
4. Significant freight and equipment shall be moved into or out of the Property only with the Landlord's knowledge and consent, and subject to such reasonable limitations, techniques and timing, as may be designated by Landlord. Tenant shall be responsible for any damage to the Property arising from any such activity.
5. Tenant must avoid fire hazards and take prudent fire prevention measures, including taking the following measures:
a. All Tenant-operated vehicles entering City property must carry a fully charged and operable ABC-rated fire extinguisher.
b. Tenant must maintain a fully charged and operable ABC -rated fire extinguisher on the Premises at all times.
c. Except for Premises located on a City building rooftop:
i. Landlord reserves the right to require Tenant to maintain a water buffalo or other large water storage (i.e., 2500 gallons) during significant Tenant operations on the Property.
ii. Tenant must maintain the Defensible Space, as defined in Section 5.2(j) of the Lease, at all times, in accordance with Section 5.2(j). d. Tenant must construct all tenant fences of fire-resistant materials. e. Tenant shall comply with all safety, fire protection and evacuation regulations established by Landlord or any applicable governmental agency.
6. Tenant shall be responsible for seeing that all its subtenants, employees, agents and invitees comply with these rules and regulations.
7. Tenant assumes all risks from theft or vandalism to the Property and agrees to keep the Property locked as may be required.
8. Landlord reserves the right to waive any one of these rules or regulations, and/or as to any particular tenant, and any such waiver shall not constitute a waiver of any other rule or regulation or any subsequent application thereof to such tenant.
9. Landlord reserves the right to modify these rules or make such other reasonable rules and regulations as it may from time to time deem necessary for the appropriate operation and safety of the Property and its occupants. Landlord shall provide Tenant with copies of DocuSign Envelope ID: 1E15859B-B48E-4FA1-A4DD-76C711D4BDD2
Exhibit G
any new and/or modified rules or regulations prior to the effective date thereof. Tenant agrees to abide by these and such other rules and regulations.
DocuSign Envelope ID: 1E15859B-B48E-4FA1-A4DD-76C711D4BDD2
Exhibit H
EXHIBIT H
List of Existing Co-Location Parties and Equipment
None.
DocuSign Envelope ID: 1E15859B-B48E-4FA1-A4DD-76C711D4BDD2