DEPARTMENT Real Estate Services Division AGENDA NO. 5e
MEETING DATE March 14, 2023
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 Communications Site Lease to New Cingular Wireless PCS, LLC, doing business as AT&T Mobility
Summary of
Proposed
Commission Action:
Approve the terms and conditions and authorize the General Manager to execute an eight-year communications site lease (Lease) with New Cingular Wireless PCS, LLC, doing business as AT&T Mobility, a Delaware limited liability company (Tenant), to use approximately 360 square feet of SFPUC Parcel 65 in the unincorporated Town of Sunol, California (Premises) to operate, maintain, repair, and replace an existing telecommunications facility and related equipment for an annual rent of $63,606.24, with four- percent annual increases.
Background: The City and County of San Francisco (City), under t he jurisdiction of its Public Utilities Commission (SFPUC), owns the Premises in fee. The Premises are located at 11640 Pleasanton Sunol Boulevard, in the unincorporated Town of, Sunol, Ca lifornia. The Premises constitute a portion of Tank Hill on SFPUC Parcel No. 65 in the SFPUC’s Alameda Watershed.
This Lease will replace an expired lease for the Premises. On May 14, 1996, by Resolution No. 96-0100, the SFPUC issued a ten -year lease to Bay Area Cellular Telephone Company (Bay Area Cellular) ( 1996 Lease), for use of the Premises as a telecommunications site. Following expiration of the 1996 Lease, on September 11, 2007, by Resolution No. 07-0158, the SFPUC issued a nine -year lease (2007 L ease) to Tenant for use of t he Premises .
Tenant is successor -in-interest to Bay Area Cellular, acquired Bay Area Cellular’s radio communications antenna facil ities and related equipment (Existing Facilities) on the Premises. The 2007 Lease expired on September 30, 2016 and is in a month-to-month holdover status.
Tenant seeks to enter into the Lease to continue to operate, maintain, and repair the Existing Facilities and will pay $63,606.24 in rent for the first year of the Lease, and then with four percent annual rent i ncreases for years two through eight. The base rent is set at fair m arket value as required under the Agreement: Authorize a communications site lease to New Cingular Wireless PCS, LLC doing business as AT&T Mobility Commission Meeting Date: March 14, 2023
2015 SFPUC Real Estate Guidelines (Resolution No. 15-0013).
The issuance of the proposed Lease allows for SFPUC st aff to update the terms and conditions of the Le ase, including insurance and indemnification provisions.
Environmental
Review:
This action does not constitute a “project” under the California Environmental Quality Act (CEQA) Guidelines Section 15378 (a) because there would be no physical change in the environment as the Licensee would use the lease premises as is.
If alterations were to be proposed, as per the License, the Licensee would not make any modifications to, or alteration of, the lease prem ises without SFPUC’s prior written consent . Approval and i mplementation of any improvements would not occur until the proposed work is reviewed and the appropriate environm ental review under CEQA, if required, has been completed.
Result of Inaction: A delay in adopting t he attac hed resolution will delay the parties from entering into a lease on City’s current communications site lease form with updated insurance and indemnification provisions.
Budget & Costs: Tenant will pay all costs associated with its use of the Pr emises, including property and possessory interest taxes.
Description of
Agreement:
Parties to Lease
Agreement:
City and County of San Francisco, acting
through the SFPUC, and New Cingular
Wireless PCS, LLC, doing business as AT&T
Mobility, a Delaware limited liability company.
Annual Rent: $63,606.24 for the first year of the Lease, subject to 4% annual rent increases.
Purpose: The operation, maintenance, repair, and
replacement Tenant’s telecommunications
facilities and related equipment on the
Premises.
Location: Approximately 360 square feet of SFPUC
Parcel No. 65, known as Tank Hill, located at
11600 Pleasanton Sunol Boulevard , in Sunol,
California.
Insurance and
Indemnity
Tenant shall insure and indemnify the SFPUC
against risks associated with its use of the
Premises.
Commencement Date: The date on w hich the Lease is executed and delivered by City following SFPUC
Agreement: Authorize a communications site lease to New Cingular Wireless PCS, LLC doing business as AT&T Mobility Commission Meeting Date: March 14, 2023
authorization and approval.
Recommendation: SFPUC staf f recommends that the Commission adopt the attached resolution.
Attachments: 1. Map of Premises
2. Tank Hill Lease
PUBLIC UTILITIES COMMISSION
City and County of San Francisco
RESOLUTION NO.
WHEREAS, The City and County of San Francisco (City), under the jurisdiction of its Public Utilities Commissio n (SFPUC), owns real property located at 11640 Pleasanton-Sunol Boulevard known as Tank Hill, in the unincorporated Town of Sunol, California (Property). The Property constitutes a portion of SFPUC Parcel No. 65 in the SFPUC’s Alameda Watershed; and WHEREAS, The SFPUC has leased a 360-square foot portion of the Property (Premises) to New Cingular Wi reless PCS, LLC , doing business as AT&T Mobility, a Delaware limited liability company (Tenant) and its predecessors for a telecommunications site since 1996 under successive leases; and
WHEREAS, The current lease is in holdover status; and
WHEREAS, Tenant desires to enter into a new telecommunications site lease (Lease) for the operation, maintenance, repair , and replacement of its existing facilities and related equipment for the transmission and reception of telecommunications signals on the Premises for an annual rent of $63,606.24 during the first lease year, with four percent annual rent increases; and
WHEREAS, The proposed rent of $63,606.24 per year is the fair market rental value for use of the Premi ses, determined in accordance with the SFPUC’s 2015 Rea l Estate Guidelines ; and
WHEREAS, The SFPUC desires to enter into the Lease; and WHEREAS, This action does not constitute a “project” under the California Environmental Quality Act (CE QA) Guidelines Section 15378(a) because there would be no physical change in the environment as the Licensee would use the lease premises as is; and WHEREAS, If alterations were to be proposed, as per the License, t he Licensee would not make any modifications to, or alteration of, the lease premises without SFPUC’s prior written consent; and approval and implementation of any improvements would not occur until the proposed work is reviewed and the appropriate environmental review under CEQA, if required, has been completed; now, therefore, be it
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 this Commission hereby approves the terms and conditions of this Lease; and, be it
FURTHER RESOLVED, That this C ommission hereby authorizes and directs the SFPUC General Manager to execute the Lease; and, be it
FURTHER RES OLVED, That this Commission herby authorizes the SFPUC General Manager to enter into any amendments or modifications to this Lease, including without limitation, the exhibits, that the General Manager det ermines, in cons ultation 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 this resolution; and comply with all applicable laws, including the City Charter.
I hereby certify that the foregoing resolution was adopted by the Public Utilities Commission at its meeting of March 14, 2023.
Secretary, Public Utilities Commission
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Pleasanton Sunol Rd
680
680
84 65
65 65
The City does not guarantee that the information is accurate or complete. The City is not responsible for any damages arising from the use of data. Users should verify the information before making project commitments.
Legend
SFPUC Pipelines
SF
PUC Parcels (Fee Owned)
0 1,000
Feet
±
Area of Lease
Aerial View of City’s Property
Lease L3743B to
New Cingular Wireless PCS
Town of Sunol
Date: 8-28-17 Author: JGL
SFPUC Parcels (Easement / Road)
S:\Real_Estate\GIS_Data\arcmap\L3743B_NewCingular_A.mxd 8/28/2017 jlukins San Francisco Public Utilities Commission
Real Estate Services
Aerial photo SFPUC / Pictometry flown 2015
Sunol Yard
Town
of
Sunol
/FL00A7h/FL00A8h/FL00A6h680PleasantonSunolRd
/FL007Dh/FL007Ch84
/FL007Dh/FL007Ch84
Map Area
Exhibit A
Lease Area
~350 sq ftAccess Gate
SAN FRANCISCO PUBLIC UTILITIES COMMISSION
LONDON BREED, MAYOR
COMMUNICATIONS SITE LEASE
(L3743B)
Between
CITY AND COUNTY OF SAN FRANCISCO,
as Landlord
and
NEW CINGULAR WIRELESS PCS, LLC
as Tenant
For the lease of
a portion of SFPUC Parcel No. 65
Sunol, California
_________________, 2023
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 Newsha K. Ajami – President
Sophie Maxwell – Vice President
Tim Paulson – Commissioner
Tony Rivera – Commissioner
Kate Stacy - Commissioner
Dennis J. Herrera
General Manager of San Francisco Public Utilities Commission DocuSign Envelope ID: 7C827528-DE1C-46E8-9532-85CF4814972A i
SUNOL GRADE.FLF 9-30-21 - PUC 011822 (Clean)+CMS (clean) Table of Contents
Section Page
1. BASIC LEASE INFORMATION ................................................................................. 1
2. PREMISES; ACCESSIBILITY DISCLOSURES; AS IS LEASE ............................. 5
2.1 Lease Premises. ................................................................................................... 5
2.2 License; Tenant’s Access to City’s Property. ................................................... 5
2.3 Rights Reserved to City. ..................................................................................... 7
2.4 Subject to Municipal Uses. ................................................................................. 8
2.5 Accessibility Disclosures..................................................................................... 8
2.6 As-Is Lease........................................................................................................... 9
3. TERM.............................................................................................................................. 10
3.1 Term of Lease...................................................................................................... 10
3.2 Commencement Date and Expiration Date ...................................................... 10
3.3 Possession. ........................................................................................................... 10
3.4 Effective Date. ..................................................................................................... 10
4. RENT; ADDITIONAL CHARGES ............................................................................. 10
4.1 Base Rent. ............................................................................................................ 10
4.2 Periodic Adjustments in Base Rent. .................................................................. 11
4.3 Additional Charges. ............................................................................................ 11
4.4 Late Charges. ...................................................................................................... 11
4.5 Default Interest. .................................................................................................. 11
4.6 Net Lease. ............................................................................................................ 12
4.7 Processing Fee. .................................................................................................... 12
4.8 Taxes and Assessments. ...................................................................................... 12
5. USE .................................................................................................................................. 13
5.1 Permitted Use. ..................................................................................................... 13
5.2 Covenants Regarding Use. ................................................................................. 13
5.3 Periodic Review................................................................................................... 17
6. TENANT’S FACILITIES ............................................................................................. 17
7. ALTERATIONS ............................................................................................................ 17
7.1 Tenant’s Alterations. .......................................................................................... 17
7.2 Title to and Removal of Tenant’s Facilities and Alterations. ......................... 19
7.3 Tenant’s Personal Property. .............................................................................. 19 DocuSign Envelope ID: 7C827528-DE1C-46E8-9532-85CF4814972A ii
SUNOL GRADE.FLF 9-30-21 - PUC 011822 (Clean)+CMS (clean)
7.4 Waiver of Landlord Lien. .................................................................................. 20
8. CITY’S ALTERATIONS OF THE PROPERTY AND CITY’S FACILITIES ........ 20
9. MAINTENANCE AND REPAIRS ............................................................................... 20
9.1 Tenant’s Responsibility for Maintenance and Repair. ................................... 20
9.2 Project Review and Access Requirements. ....................................................... 21
9.3 No Right to Repair and Deduct. ........................................................................ 21
10. LIENS.............................................................................................................................. 21
11. UTILITIES AND SERVICES ...................................................................................... 22
11.1 Utilities and Services. ......................................................................................... 22
11.2 Mandatory or Voluntary Restrictions. ............................................................. 23
12. COMPLIANCE WITH LAWS AND RISK MANAGEMENT
REQUIREMENTS ......................................................................................................... 23
12.1 Compliance with Laws. ...................................................................................... 23
12.2 Licenses and Approvals...................................................................................... 24
12.3 Radiofrequency Radiation and Electromagnetic Fields. ................................ 25
12.4 Compliance with City’s Risk Management Requirements. ............................ 25
13. SUBORDINATION ....................................................................................................... 25
14. DAMAGE OR DESTRUCTION .................................................................................. 26
15. CONSTRUCTION PROJECTS ................................................................................... 27
16. EMINENT DOMAIN .................................................................................................... 27
16.1 Eminent Domain ................................................................................................. 27
16.2 Temporary Takings. ........................................................................................... 28
17. ASSIGNMENT AND SUBLETTING; CO-LOCATION........................................... 28
17.1 Restriction on Assignment and Subletting. ...................................................... 28
17.2 Notice of Proposed Transfer. ............................................................................. 28
17.3 City’s Response. .................................................................................................. 29
17.4 Effect of Sublease or Assignment. ..................................................................... 29
17.5 Assumption by Transferee. ................................................................................ 29
17.6 Permitted Assignment. ....................................................................................... 30
17.7 Co-location .......................................................................................................... 30
17.8 IPM Plan and Form CMD-12B-101. ................................................................. 31
18. DEFAULT ...................................................................................................................... 31
18.1 Events of Default. ................................................................................................ 31
18.2 Remedies. ............................................................................................................. 32 DocuSign Envelope ID: 7C827528-DE1C-46E8-9532-85CF4814972A iii
SUNOL GRADE.FLF 9-30-21 - PUC 011822 (Clean)+CMS (clean)
18.3 Special Administrative Charges. ....................................................................... 33
18.4 City’s Right to Cure Tenant’s Defaults ............................................................ 34
19. TENANT’S INDEMNITY............................................................................................. 34
20. INSURANCE .................................................................................................................. 35
20.1 Tenant’s Insurance. ............................................................................................ 35
20.2 General Requirements. ...................................................................................... 37
20.3 Proof of Insurance; Failure to Provide. ............................................................ 38
20.4 Lapsed Coverage................................................................................................. 38
20.5 Review of Insurance Requirements. ................................................................. 38
20.6 No Limitation on Lease Obligations or Liability. ............................................ 39
20.7 Tenant’s Facilities and Personal Property. ...................................................... 39
20.8 City’s Self Insurance. ......................................................................................... 39
20.9 Waiver of Subrogation. ...................................................................................... 39
21. LIMITATION OF CITY’S LIABILITY ..................................................................... 39
21.1 Limitation of City’s Liability. ............................................................................ 39
21.2 Consequential Damages. .................................................................................... 40
21.3 No Relocation Assistance. .................................................................................. 40
22. CITY’S ACCESS TO PREMISES ............................................................................... 41
22.1 City’s Access to the Premises. ............................................................................ 41
22.2 Pipeline and Utility Installations. ...................................................................... 42
22.3 Roadways. ............................................................................................................ 42
23. TENANT’S ESTOPPEL CERTIFICATES ................................................................ 42
24. RULES AND REGULATIONS .................................................................................... 42
25. SECURITY DEPOSIT .................................................................................................. 43
26. SURRENDER OF PREMISES ..................................................................................... 43
26.1 Surrender Plan .................................................................................................... 43
26.2 Surrender ............................................................................................................ 43
26.3 Quitclaim Deed ................................................................................................... 44
27. HAZARDOUS MATERIALS ....................................................................................... 44
27.1 Definitions............................................................................................................ 44
27.2 No Hazardous Material in Premises. ................................................................ 45
27.3 Tenant’s Environmental Indemnity. ................................................................ 45
28. SPECIAL PROVISIONS .............................................................................................. 46
28.1 Protection of Tenant Against Interference. ...................................................... 46 DocuSign Envelope ID: 7C827528-DE1C-46E8-9532-85CF4814972A iv
SUNOL GRADE.FLF 9-30-21 - PUC 011822 (Clean)+CMS (clean)
28.2 Protection Against Tenant’s Interference. ....................................................... 46
29. GENERAL PROVISIONS ............................................................................................ 47
29.1 Notices .................................................................................................................. 47
29.2 No Implied Waiver ............................................................................................. 47
29.3 Amendments........................................................................................................ 47
29.4 Authority. ............................................................................................................ 47
29.5 Interpretation of Lease. ...................................................................................... 48
29.6 City Consents, Approvals, Elections and Options. .......................................... 48
29.7 Successors and Assigns. ...................................................................................... 48
29.8 Brokers. ............................................................................................................... 49
29.9 Severability. ......................................................................................................... 49
29.10 Governing Law. .................................................................................................. 49
29.11 Entire Agreement. .............................................................................................. 49
29.12 Attorneys’ Fees. .................................................................................................. 49
29.13 Holding Over. ...................................................................................................... 50
29.14 Time of Essence. .................................................................................................. 50
29.15 Cumulative Remedies. ........................................................................................ 50
29.16 Survival of Indemnities. ..................................................................................... 51
29.17 Signs. .................................................................................................................... 51
29.18 Relationship of the Parties ................................................................................. 51
29.19 Light and Air. ...................................................................................................... 51
29.20 Recording. ........................................................................................................... 51
29.21 Non-Liability of City Officials, Employees and Agents. ................................. 51
29.22 Reserved. Intentionally left blank. ...................................................................... 52
29.23 Non-Discrimination in City Contracts and Benefits Ordinance. ................... 52
29.24 Requiring Health Benefits for Covered Employees. ........................................ 53
29.25 Notification of Prohibition on Contributions. .................................................. 54
29.26 Resource-Efficient City Buildings ..................................................................... 55
29.27 MacBride Principles – Northern Ireland. ........................................................ 55
29.28 Conflicts of Interest. ........................................................................................... 55
29.29 Drug-Free Workplace. ....................................................................................... 55
29.30 Tropical Hardwood, Virgin Redwood Ban, and Preventative-Treated Wood Containing Arsenic. ................................................................................ 55
29.31 Prohibition of Tobacco Sales and Advertising ................................................. 56 DocuSign Envelope ID: 7C827528-DE1C-46E8-9532-85CF4814972A v
SUNOL GRADE.FLF 9-30-21 - PUC 011822 (Clean)+CMS (clean)
29.32 Prohibition of Alcoholic Beverage Advertising................................................ 56
29.33 Sunshine Ordinance; Public Records Law ....................................................... 56
29.34 Food Service and Packaging Waste Reduction Ordinance. ........................... 56
29.35 San Francisco Packaged Water Ordinance ..................................................... 57
29.36 Criminal History in Hiring and Employment Decisions ................................. 57
29.37 Local Hiring Policy for Tenant’s Facilities and Alterations ........................... 58
29.38 Contractor Vaccination Requirements. ............................................................ 58
29.39 Cooperative Drafting. ......................................................................................... 59
29.40 Counterparts. ...................................................................................................... 59
LIST OF EXHIBITS
Exhibit A Aerial View of City’s Property
Exhibit B Depiction of Premises
Exhibit C Tenant’s Existing Facilities (As-Built Plans) Exhibit D Confirmation of Commencement Date
Exhibit E Engineering Guidelines
Exhibit F Conditional Use Permits
Exhibit G Rules and Regulations
Exhibit H List of Existing Co-locat ion Parties and Equipment
DocuSign Envelope ID: 7C827528-DE1C-46E8-9532-85CF4814972A 1 SAN FRANCISCO PUBLIC UTILITIES COMMISSION
COMMUNICATIONS SITE LEASE
THIS COMMUNICATIONS SITE LEASE (this “ Lease”) dated for reference purposes only as of _________________, 2023, is made betw een the CITY AND COUNTY OF SAN FRANCISCO, a municipal corporation (“City” or “Landlord”), acting by and through its Public Utilities Commission (“ SFPUC”), and NEW CINGULAR WIRELESS PCS, LLC , a Delaware limited liability company (“Tenant”).
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 informati on in this Secti on and any more specific provision of this Lease, the more specific provision shall control.
Lease Reference Date: __________________, 2023
Landlord: City and County of San Francisco, acting through its Public Utilities Commission
Tenant: New Cingular Wireless PCS, LLC
Property (Section 2.1): That portion of Assessor’s Parcel No. 096-0376-007- 02 (also known as a portion of SFPUC Parcel No.
65), as described in and/or shown on attached
Exhibit A, and all appurtenances and improvements
thereto (the “Property”). The Property is under the
jurisdiction of the SFPUC.
Premises (Section 2.1): The portion of the Property, consisting of approximately three hundred sixty (360) square feet
of space in the equipment building located on the
Property (the “Equipment Shelter”), together with
certain antenna space on a fifty-foot (50’)
communications tower adjacent to the Equipment
Shelter (the “ Tower”), all as shown on attached
Exhibit B (the “Premises”).
License (Section 2.2): In connection with the lease of the Premises and for the Term of the Lease (as defined in Section 3.1
(Term of Lease) below), Tenant shall have a
nonexclusive and nonposse ssory license (the
“License”) for (i) the placement and use of cables,
wiring and conduit in the locations and manner
shown on attached Exhibit C and as otherwise
DocuSign Envelope ID: 7C827528-DE1C-46E8-9532-85CF4814972A 2 mutually agreed in writing between City and Tenant,
(ii) vehicular access, ingre ss and egress in and over
the existing driveway on the Property, and
(iii) pedestrian access within the Property to and
from the Premises, all as shown on attached
Exhibit C (collectively, the “License Area”).
Term (Section 3.1): Eight (8) years.
Commencement Date: _________________
Expiration Date: _________________
Base Rent (Section 4.1):
Lease
Year
Annual
Base Rent
Monthly
Base Rent
1 $63,606.24 $5,300.52
2 $66,150.49 $5,512.54
3 $68,796.51 $5,733.04
4 $71,548.37 $5,962.36
5 $74,410.30 $6,200.86
6 $77,386.72 $6,448.89
7 $80,482.19 $6,706.85
8 $83,701.47 $6,975.12
Processing Fee (Section 4.7): Three Thousand Dollars ($3,000.00).
Adjustment Dates (Section 4.2): Each of the following is an “Adjustment Date”:
(i) the first (1st) day of the second Lease Year,
(ii) the first (1st) day of each subsequent Lease Year, (iii) the first (1st) 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 effectiv e date of a Transfer (as
defined in Section 17.1 (Restriction on Assignment
and Subletting) to the extent that City has the right to approve a Transfer pursuant to Section 17.1
(Restriction 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 Y ear 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
DocuSign Envelope ID: 7C827528-DE1C-46E8-9532-85CF4814972A 3 Lease expires or terminates, even if less than twelve (12) full months.
Security Deposit (Section 25): Fifteen Thousand Nine Hundred One Dollars and Fifty-Six cents ($15,901.56).
Use (Section 5.1): Installation, construction, maintenance, inspection, restoration, repair, replacement, 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
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
or authorized to be used by Tenant or its affiliates by the FCC, as further described in Section 5.1
(Permitted Use).
Tenant’s Existing Facilities (Section 6): Tenant’s Existing Facilities as described on Exhibit C, consist of the following:
(a) approximately 360 square feet of an existing
multi-carrier equipment building with the following
equipment: (i) DUS-41 rack, (ii) two (2) FIF racks,
(iii) UMTS cabinet, (iv) Panel Board with Main
Circuit Breaker, (v) Battery Racks with Battery
Disconnect Switch, (vi) two (2) GSM cabinets,
(vii) Ciena Box, (viii) Telco Box, and (ix) Fiber Box;
and (b) certain space on an existing self-support
lattice tower including (i) three (3) dummy antennas,
(ii) six (6) existing antennas with six (6) TMA’s, (iii) three (3) RRHS units, (iv) AT&T Raycap DC-6
Squid DC Power Distribution Unit, and three (3) 4-
ft. Hex Port Antennas with three (3) RRUS-12’s and
A2’s behind Hex Port Antennas, together with the
fasteners, cables and appurtenances necessary for
operation, and the cables installed in the License
Area as described in the de scription of the License
above (together, “Tenant’s Existing Facilities”), all
as shown on the As-Built Plans attached hereto as
Exhibit C.
Utilities and Services (Section 11.1): All utilities and servi ces (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.
DocuSign Envelope ID: 7C827528-DE1C-46E8-9532-85CF4814972A 4 Tenant shall contact Fras er Smith, (415) 554-2420 to determine if SFPUC will be the provider of electric
power service for Tenant’s Facilities and the terms of
service, as provided in Section 11.1.
Utilities Charge (Section 11.1): N/A
Notice Addresses of City
(Section 29.1): San Francisco Public Utilities Commission Real Estate Services
525 Golden Gate Avenue, 10
th Floor
San Francisco, CA 94102
Attn.: Real Estate Director
Re: Lease No. L3743B
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, CA 94102-4682
Attn: Real Estate/Finance Team
Re: SFPUC Cell Site Lease No. L3743B
and to: Alameda Watershed Manager
505 Paloma Way
Sunol, CA 94586
City’s Key Contact: SFPUC R eal 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): Rick Duffey
Watershed Keeper Supervisor
Office: (925) 862-5508
Cell: (415) 518-2049
City’s Emergency Contact
(Section 2.2(b)): Dispatch Operator, (650) 872-5900
Access Permit (Section 2.2 (b)(i)): John Fournet – [email protected] or Gloria Ng – [email protected]
DocuSign Envelope ID: 7C827528-DE1C-46E8-9532-85CF4814972A 5 Notice Address for Tenant (Tenant to
notify City of any changes, in
accordance with Section 29.1): New Cingular Wireless PCS, LLC Attn: Tower Asset Group – Lease Administration
Re: Cell Site No.: CCL00074
Cell Site Name: Sunol Grade (CA)
Fixed Asset No.: 10087937
1025 Lenox Park Boulevard NE, 3
rd Floor
Atlanta, GA 30319
With a required copy of the notice sent
to the address above to AT&T Legal at: New Cingular Wireless PCS, LLC Attn: AT&T Legal Dept. – Network Operations
Re: Cell Site No.: CCL00074
Cell Site Name: Sunol Grade (CA)
Fixed Asset No.: 10087937
208 S. Akard Street
Dallas, TX 75202-4206
Key Contact for Tenant: NOC Telephone No.: (800) 832-6662 Emergency Contact for Tenant: NOC Telephone No.: (800) 832-6662 Brokers (Section 29.8): N/A
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 (Basic Lease Information). 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, cabl es, 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 distri bution of water, power, or wastewater and/or transmission or reception of communications si gnals, for municipal purpos es, together with all appurtenances thereto and a ll monuments thereof. The Property (as defined in Section 1 (Basic Lease Information)) and the Premises are shown generally on attached Exhibits A-C. Nothing in this Lease is intended to grant Tenant any right wh atsoever 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 fo r the term of this Lease, the License to use the License Area (as defined in Section 1 (Basic Lease Information)), and as it may be modified during the Term with prior written approval of City in accordance with the terms of DocuSign Envelope ID: 7C827528-DE1C-46E8-9532-85CF4814972A 6 this Lease. 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 at any time following reasonable notice to Tenant. Notwithstanding a nything 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, mainta ining, restoring, re placing, upgrading, a nd operating Tenant’s Facilities located within the Premises or the Li cense 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) Access Permit . During any entry onto the Property, Tenant’s Agents (as defined in Section 29.5) shall have in their possession a current, unexp ired access permit issued by SFPUC’s Natural Resources and Land Management di vision. The permit application form can be obtained online at www.sfwater.org or by contacting (650) 652-3201.
Tenant’s Agents must be prepared to displa y the access permit to SFP UC staff whenever the Agents are present on the Property. In the event of any conflict between the terms of the access permit and the terms of this Lease, this Lease shall control. SFPUC’s contact information for Access Permits is listed in Section 1 (Basic Lease Information). (ii) Work Schedule . At least ten (10) bus iness days prior to the commencement of any permitted construction, maintenance, re pair, installation, inspection, restoration, or replacement on the Premises or License Area , Tenant shall notify SFPUC’s Watershed Manager (“Watershed Manager”), currently at (925) 862-5516 of the date such work shall commence and the intended construction schedule. The construction inspector may require Tenant to adjust such schedule from time to time. All work must be performed Monday through Friday between 8:00 am and 4:30 pm, 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.
(iii) Required Notice to Dispatch Operator . In addition, forty-eight (48) hours before any Agent of Tenant enters the Property to commence any approved maintenance, repair, replacement or other construction, Tenant shall notify SFPUC’s dispatch operator, by calling (650) 872-5900 . Also, during the period of such operations, Tenant shall notify SFPUC’s dispatch operator daily when commencing and ending such activities on City’s Property.
(iv) Additional Requirements for Wo rk on Tenant’s Facilities . In addition, prior to any construction or installation of Tenant’s Facilities or Alterations, Tenant shall comply with the requ
irements of Section 6 (Tenant’s Facilities) and Section 7 (Alterations). (v) Emergency Access . Notwithstanding the foregoing notice requirements, in the event of an emergency posing a threat to public health or safety or imminent injury to persons or damage to property, Tena nt may conduct maintenance or take other action DocuSign Envelope ID: 7C827528-DE1C-46E8-9532-85CF4814972A 7 needed to prevent or minimize a threat to public health or safety or imminent damage to property.
In such instance, Tenant shall use best efforts to contact City’s emergency contact specified in Section 1 (Basic Lease Information) before commencing the work, and shall provide 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 Lease 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 intere st 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, in cluding (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 righ ts, including all standing trees and downed timber;
(c) Any and all minerals and mineral right s of every kind a nd character now known to exist or hereafter disc overed on the Property, includi ng 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 C ity 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 interfer e with the Permitted Use (as defined in Section 5.1 (Permitted Use)) thereof by Tenant, without 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 gr antee’s assumption of liability to Tenant for damage to its property that Tenant may sustain hereunder as a re sult of the grantee’s use of such easement or right-of-way;
(f) Without limiting the general ity 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, radi o 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-o f- 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 DocuSign Envelope ID: 7C827528-DE1C-46E8-9532-85CF4814972A 8 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.
2.4 Subject to Municipal Uses.
Tenant acknowledges that the property of which the Premises are a part constitutes a portion of City’s watershed, which City holds for the purposes of collecting, storing, transporting and distributing water for municipal use. 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 Ev ent of Default on the part of Tenant outstanding hereunder and no pending 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 liab le 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 shall not be deemed to imply that City holds less than fee title to the Premises or otherwise call into question the natu re 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 Section 1938 requires commercial landlo rds to disclose to tenants whether the property being leased has undergon e inspection by a Certified Access Specialist (“CASp”) to determine whether the property meets all applicable construction-related accessibility requirements.
Landlord discloses (i) Landlord has not been issued a disability access inspection certificate as described in California Civil Code (“CC”) Section 55.53(e), (ii) pursuant to CC Section 1938, that Landlord has not ordered, performed, or caused to be performed, a Certified Access Specialist (“CASp”) inspection of the Premises (sometimes referred to as “premises” or “subject premises” for the herein disclosures), an d (iii) Landlord makes the followi ng statutory disclosure per CC Section 1938 (the required “CASp Disclosure”):
“A Certified Access Specialist (CASp) can inspect the subject premises and determine whether the subject premises comply with all of the applicable construction-related accessibility standards under state law. A lthough state law does not require a CASp inspection of the subject premises, the co mmercial property owner or lessor may not prohibit the lessee or tenant from obtaining a CASp inspection of the subject premises for the occupancy or potential occupancy of the le ssee or tenant, if requested by the lessee or tenant. The parties sha
ll mutually agree on th e arrangements for the time and manner of the CASp inspection, the payment of the fee for the CASp inspection and the cost of DocuSign Envelope ID: 7C827528-DE1C-46E8-9532-85CF4814972A 9 making any repairs necessary to correct violations of cons truction-related accessibility standards within the premises.”
Landlord and Tenant agree that if Tenant desires to have the Premises inspected by a CASp, then (1) Tenant will cause the inspection to occur within thirty (30) days after the Effective Date; (2) the inspection will occur during business hours on a business day; (3) Tenant will give Landlord five (5) business days prior written notice of the inspection time and date; (4) Landlord may attend the inspection; (5) the inspection may not include any destructive testing or damage to the Premises or the Building; (6) Tenant will pay for all inspection costs (including fees for any reports prepared by the CASp (collectively, the " CASp Reports "). Tenant will deliver any CASp Reports to Landlord within three (3) business days after Tenant's receipt. Tenant, will be solely responsible at Tenant’s cost for making improvements, alterations, modifications, and/or repairs to or within the Premises to correct violations of construction-related accessibility standards disclosed by the CASp inspection. If the CASp inspection identifies any improvements, alterations, modifications, and/or repairs necessary to correct violations of construction-related accessibility standards relating to items of the Building or the Project located outside the Premises that are Landlord's obligation to repair under this Lease, then Landlord will perform the improvements, alterations, modifications, and/or repairs as and to the exte nt required by applicable Laws, and Tenant will reimburse Tenant’s Percentage Share of the cost of the improvements, alterations, modifications, and/or repairs within ten (10) business days after Tenant's receipt of an invoice from Landlord.
2.6 As-Is Lease.
(a) Inspection of Premises . Tenant represents and warrants that Tenant has conducted a thorough and diligent inspection and inve stigation, 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 accepte d strictly in their “AS IS, WITH ALL FAULTS” condition, without representation or warranty of any kind, and su bject to all applicable Laws governing the use, occupancy, management, opera tion 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, 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, geol ogical, 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 feasib ility, cost, or legality of c onstructing any Alterations on the Premises if required for Tenant’s use and permitted under this Leas e, or (vi) any other matter whatsoever relating to the Premises or th eir use, including any implied warranties of merchantability or fitness for a particular purpose.
DocuSign Envelope ID: 7C827528-DE1C-46E8-9532-85CF4814972A 10 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). The Term shall end on the Expiration Date described in Section 1 (Basic Lease Information), unless sooner terminated pu rsuant to the provisions of this Lease.
3.2 Commencement Date and Expiration Date
The dates on which the Term commences and e xpires 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 20, 2007 (the “ Original Lease”) between City and Tenant. The Original Lease ha s expired, and Tenant re mains in possession of the Premises with City’s consent under a m onth-to-month holdover tenanc y. City and Tenant agree that the holdover tenancy shall terminat e effective upon the Comme ncement Date, if not terminated sooner.
3.4 Effective Date.
This Lease shall become effective on the last to occur of the following (the “ Effective Date”): (i) the date SFPUC adopts a resolution approving this Lease, and (ii) the date the parties hereto have duly executed and delivered this Lease.
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 (Periodic Adjustments in Base Rent). The Base Rent shall be payable in monthly installments on or before th e first day of each month, in advance, at the San Francisco Public Utilities Commission, Custom er Service Bureau, Attention: Real Estate Billing, 525 Golden Gate Avenue, 3 rd Floor, San Francisco, California 94102 (reference SFPUC Lease No. L3743B), or such other place as City ma y 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 the 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 thir ty (30) day month. The initial Base Rent payment will be forwarded by Tenant to City within ninety (90) days after the Commencement Date.
DocuSign Envelope ID: 7C827528-DE1C-46E8-9532-85CF4814972A 11 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 tw elve (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 ad justment 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 to the extent that City has the right to approve a Transfer pursuant to Section 17.1 (Restriction on Assignment and Sublet ting), 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 Ba se 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 s ubject to a late payment charge equal to six pe rcent (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 th e 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 lawful ly permitted to charge. Payment of interest and late charges without payment of the due amount of Base Rent shall not excuse or cure any default by Tenant.
DocuSign Envelope ID: 7C827528-DE1C-46E8-9532-85CF4814972A 12 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 dema nd and without abatement, count erclaim or setoff. Under no circumstances, whether now existing or hereafte r 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 Facilit ies, except as may otherwise be 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 City would otherwise be or become liable for by reason of its estate or interests in the Premises, the License Area and any Improvements (defined in Section 8.1(b) (Consent; Approved Plans) below), any rights or interests of City in or under this Lease, or the ownership, leasing, licensing, operation, management, maintena nce, repair, rebuilding, remodeling, renovation, use or occupancy of the Premises, License Area, any pe rmitted Alterations, or any portion thereof.
Except as may be specifically and expressly provid ed 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 re lieve 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.
Upon execution of this Lease, Tenant shall pay City the sum specified in the Basic Lease Information as a one-time, nonrefundable fee for processing this Lease. Tenant shall also reimburse City for all f ees and costs, including attorney’s f ees and costs, incurred by City in seeking the approvals necessary to enter into th is Lease, including comp letion of environmental reviews and review and approval of this 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, accompanied by reasonable substantiation of such fees and costs.
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 used or occupied by Tenant, any Alterations, Tenant’s Personal Property (as
such te rms are defined in Section 7.3 (Tenant’s Personal Property), the leasehold estate, any sublease hold estate, or Tenant’s use of the Premises, Tenant’s Facilities and/or any Alterations. Subject to Tenant’s receipt of the assessment or request, Tenant shall make all such payments direc tly 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 sixty (60) days after the date when any charges are due and DocuSign Envelope ID: 7C827528-DE1C-46E8-9532-85CF4814972A 13 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 authorit y, Tenant shall reimburse City for payment of such sums immediately upon demand.
(b) Taxability of Possessory Interest. Without limiting the foregoing, Tenant recognizes and agrees that this Leas e 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 contest the validity of any such taxes provided Tenant, before commencement of any pr oceeding or contest, furnishes to City a surety bond issued by a sure ty 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 Pa rties, and the Premises from and against any Claims as defined in Section 19 (Tenant’s Indemnity) below, 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, in cluding 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, construction, maintenance, inspection, restoration, repair, replacement, upgrade, 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 (i) licensed to Tenant or its affiliates by the FCC, or (ii) that Tenant or its affiliates are authorized to use by the 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, upgrade, 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) below.
5.2 Covenants Regarding Use.
As a material inducement to City to enter into this Lease, Tenant covenants with City as follows:
DocuSign Envelope ID: 7C827528-DE1C-46E8-9532-85CF4814972A 14 (a) No Unlawful Uses or Nuisances . Tenant shall not use or occupy any of the Premises, the License Area or any A lterations or Improvements (defined in Section 8.1(b) (Consent; Approved Plans) below), or permit th e 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 in violation of applicable laws 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. Tena nt shall not advertise in any manner in areas outside the Premises or on or about the Propert y; 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 larg er 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 exce ss of the then-existing regulatory standards. Upon request, Tenant shall promptly provide City with a copy of each radio frequency 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 of this Lease, Tenant shall protect the City’s Facilities from any damage, injury or disturbance arising from Tenant’s use and/or occupanc y of the Premises or License Area. If Tenant or any of its Agents or Invitees (as such term defined in Section 29.5 (Interpretation of Lease) below) damages, injures or disturbs any of the C ity’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 he reunder, 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 such terms are defined in Sections 7.3 (Tenant’s Personal Property) and Section 7 (Alterations) below) 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. Alternatively, subject to the approval of SFPUC’s General Manager (the “General Ma nager”) in his or her sole discretion, Tenant may pay for the costs reasonably determined by the General Mana ger 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 hereunde r 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 installed on the Premises or License Area with a durable, permanent, wate rproof label, in form reasonably approved by Landlord, containing “Lease No. L3743B” and “Site No. SNFCCA0074 Sunol Grade”. At the DocuSign Envelope ID: 7C827528-DE1C-46E8-9532-85CF4814972A 15 entrance to the fenced or enclosed equipment area, Tenant shall affix a durable, waterproof plaque, in form reasonably approved by La ndlord, 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, f ill, alteration or impairm ent to the bed, bank or channel of any natural water cour se, wetland, or other body of wa ter 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 Licen se Area of landfill, refuse, Hazardous Material (as such term defined in Section 27.1(b) (Hazardous Material) below) or other materials that are unsightly or could pose a hazard to human health or safety, native vegetation or wildlife, or the environment.
(g) Covenant to Protect Trees and Native Vegetation . Tenant shall not engage in or permit the cutting, removal, or de struction of trees or any native vegetation on the Premises or License Area, without the prior written approval of th e City. If trees and/or native vegetation adversely interfere w ith Tenant’s telecommunication signal or encroach into the mandatory Defensible Space (as defined in Section 5.2(j) below), Tenant ma y 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 de tailed description of th e 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 governmental 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 integrat ed 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 con tract 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 reasonabl y 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 DocuSign Envelope ID: 7C827528-DE1C-46E8-9532-85CF4814972A 16 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 pestic ides 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 (includi ng 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 contai nment 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 writte n recommendation from a person holding a valid Agricultural Pest Control Advisor license issu ed by the California Depa rtment of Pesticide Regulation (“CDPR”) and any such pesticide applicati on shall be made only by or under the supervision of a person holding a valid, CDPR-issued Qualified Applicator certificate or Qualified Applicator license. City’s current Reduced Risk Pesticide List and additional details about pest management on City property can be found at th e San Francisco Department of the Environment website, http://sfenvironment.org/ipm.
(j) Vegetation Management; Defensible Space. Tenant shall maintain at all times thirty (30) feet of clear, defensible space around (1) Tenant’s structures and equipment, and (2) the Equipment Shel ter (collectively, “Defensible Space”). No tree branches may hang over the Defensible Space. Tenant shall coordinate with SFPUC staff 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, Te nant shall comply with the processes and restrictions set forth in this Section 5.2, including those concerning pesticide use, protection of trees and prohibiti on of burning. Tenant’s clearing of Defensible Space must be completed by June 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 charg e 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 char ge 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 Pr emises or License Area except on existing roads and driveways and in the manner for which such roads are intended.
DocuSign Envelope ID: 7C827528-DE1C-46E8-9532-85CF4814972A 17 (n) Use of Roads. Tenant shall not block or in terfere with any travel on the roads on the Property. If Tenant proposes to install a new access road, Tenant shall present the proposal to Project Review in accordance with Section 7.1 (Tenant’s Alterations). If approved, the construction of the road shall be subject to the applicable provi sions of this Lease, including Sections 2.2 and 7.
(o) Watershed Management Plan. Tenant shall comply with any and all other regulations or requirements resulting from City’s development of a watershed management plan, and any modifications or additions to such plan, provided that such regulations or requirements do not unreasonably interfere with Tenant’s use and enjoyment of the Premises hereunder. (p) Security Gate . Tenant shall ensure that the gate to the Property (the “Access Gate ”) is securely closed at all times. The Access Gate is in the location shown on Exhibit A. Tenant shall not cause or permit the Access Gate to remain open unattended, at any time. Upon entry to or exit from the Property, the gate must be closed immediately. The Access Gate keeps grazing cattle within the Property. Tenant shall be liable for any damages to the extent caused by Tenant’s failure to comply with this subsection. Tenant shall also be subject to the charges stated in Section 18.3 (Special Administrative Charges) for failure to comply with this Section.
5.3 Periodic Review
City and Tenant shall confer periodically to review the effectiveness of Tenant’s vegetation management under Section 5.2(j) above and to review any i ssues 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 installed the facilities described as Tenant's Existing Facilities in the Basic Leas e Information and shown in th e as-built plans attached as Exhibit C (“Tenant’s Existing Facilities”).
Tenant’s Existing Facilities, as they may be modified, expanded, reduced and replaced from time to time in accordance with Section 7 (Alterations), are referred to in this Lease as “Tenant’s Facilities.”
7. ALTERATIONS
7.1 Tenant’s Alterations.
(a) Project Review Process; Required Studies and Analyses . Tenant shall submit a project review application to City at least one hundred twenty (120) days before undertaking any proposed Alterations (as defined below) or other construction, maintenance, repair, expansion, or replacement
of Tenant’s Facilities and shall undergo SFPUC’s project review process (“Project Review”). After Tenant has undergone the Pr oject Review process for one or more maintenance projects, SFPUC’s Watershed Manager or his or her designee shall have discretion to waive the Project Review meeti ng requirement (but not the Project Review application requirement) in subsequent si milar cases. In conducting any construction, DocuSign Envelope ID: 7C827528-DE1C-46E8-9532-85CF4814972A 18 maintenance, repair, expansion or replacement, Tenant shall comply with all reasonable conditions and measures imposed by SFPUC. City reserves the right to require a structural review analysis, including engineering specifications and calculations for roof (if applicable) and structure weight and wind loading, stamped and signed by a Ca lifornia licensed professional engineer. City reserves the right to require a viewshed study to be conducted at Tenant’s expense, to ensure that the proposed Alterations are sited and designed to avoid or minimize potential impairment of the land’s scenic values.
(b) Consent; Approved Plans. Tenant shall not make, construct, install, or permit any modifications or alterations of the Property or any existing Improvements (defined below), 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, equipment, or facilities on the Property (collectively, “ Alterations”), except with City’s prior written reasonable consent and in accordance with plans and specifications that have been approved by City (the “ Approved Plans ”), which written reasonable cons ent shall not be unreasonably delayed. Where appropriate in City’s judgment, City will require that Tenant minimize the visual impact of proposed Alterations through design, sc reening and siting. For example, City may require that the Alteration blend with and/or complement the color, design and/or character of the surrounding context, whether na tural backdrop, building or ex isting facility. The term “Improvements” means any buildings, structures, fixtur es and other improvements, including signs, roads, trails, grading, driveways, parking areas, utility infrastructure, plantings and hardscape. The term “Alterations” includes the initial alterations. The term “Approved Plans” includes Tenant’s initial alterations Approved Plans. In no even t shall City’s approval of the Approved Plans be deemed to constitute a repres entation 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 st andards nor shall such approval release Tenant from Tenant’s obligation to supply plans and specifications that conform to applicable codes, other laws and industry standards. Notwithstanding the foregoing, in no event shall Tenant be required to obtain City’s approval for any Alterations which are “like-for-like” replacements of equipment located within Tenant’s Equipment Shelter or lattice to wer. For those Alterations requiring City’s reasonable written consent, City’s reasonable wr itten consent to proposed Alterations may be conditioned on, among other things, an increase in Base Rent fo r proposed additional Tenant’s Facilities and/or expansion of the Premises or License Area. (c) Tenant’s Contractors and Compliance with Conditions. Any approved Alterations shall be done at Tena nt
’s sole expense in accordance with the Approved Plans, only by duly licensed and bonded contractors, and subject to all other reasonable conditions that City may reasonably impose.
(d) Access Requirements; Construction Schedule . Without limiting the foregoing, Tenant agrees to comply with the permit an d notice requirements in Section 2.2 (License; Tenant’s Access to City’s Property) in connection with Tenant’s access to the Property. (e) Permits. Tenant shall further be respons ible, at its cost , for obtaining all permits (including any required conditional use perm it) and licenses required 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 DocuSign Envelope ID: 7C827528-DE1C-46E8-9532-85CF4814972A 19 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. (f) 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 SFPUC. Tenant shall contact City’s Access Contact to arrange for an inspection by SFPUC staff upon co mpletion of the work to confirm satisfactory restoration.
(g) Administrative Fee. If the cost of any Alterations to the Property exceeds Twenty-Five Thousand Dollars ($25,000.00), then Tenant shall pay City a reasonable administrative fee to be determined by City staff for each occurrence. (h) 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 th rough design or screen ing, to conform to changes in the local design standards, to address concerns of the local community or neighboring property owners, or to address adverse effects on City’s Property, facilities or resources. In the event that the requested changes or replacements are not t echnically feasible, Tenant shall have the right to terminate the Lease.
7.2 Title to and Removal of Tenant’s Facilities and Alterations.
Ownership and removal of Tenant’s Personal Property is addressed in Section 7.3 (Tenant’s Personal Property). Any other Tenant’s Facilities and Altera tions constructed on or affixed to the Premises or License Area by or on behalf of Tenant pursuant to the terms and limitations 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, expressly excluding Tenant’s antenna equipment. 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 City at its sole option and without limiting any of the provisions of Section 7.1, requires as a condition of a pproval of any such Tenant’s Facilities or Alterations that such Tenant’s Fa cilities or Alterations remain on the Premises or License Area at the expiration or termination of th is Lease, or unless City, as a condition of such approval, reserves the right to elect by notice to Tenant before the expiration of the Term to have such Alterations remain on the Premises or Licens e Area and thereafter notifies Tenant that City is exercising such election.
7.3 Tenant’s Personal 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 w ithout structural or other material damage to the Premises or License Area shall be and remain the property of Tenant an d 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 DocuSign Envelope ID: 7C827528-DE1C-46E8-9532-85CF4814972A 20 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.
7.4 Waiver of Landlord Lien.
City acknowledges that Tenant has entered into or may enter into one or more financing arrangements with thir d party financing entiti es (collectively, “Financing Entity”), which may include promissory notes and fina ncial 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 reque st, 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 Tena nt’s Personal Property, so long as (a) the Financing Entity agrees that it (i) will, following reas onable notice to City, remove Te nant’s Personal Property from the Premises during the Term or within thirty (30) days after the e xpiration 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 One Thousand Dollars ($1,000.00). City shall recognize the rights of a Financing Entity who has an interest in any items of Tena nt’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.
8. CITY’S ALTERATIONS OF THE PROPERTY AND CITY’S FACILITIES City reserves the right at any time to make alterations, additions, re pairs, deletions or Improvements to all or any part of the Property, City’s Facilitie s, or the common areas of the Property, for any purpose including compliance with mandatory or vol untary 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, de letions or Improvement s 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 he reunder or constitute or be construed as a constructive or ot her eviction of Tenant, provided that City does not materially adversely 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 responsibil ity 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 exis ting 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 DocuSign Envelope ID: 7C827528-DE1C-46E8-9532-85CF4814972A 21 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 afte r receipt of Landlord’s invoice accompanied by reasonable substantiation of any such road main tenance and repair costs, Tenant shall pay its proportionate share of the costs incurred by SFPUC to maintain and repair such road.
City shall not under any circumstances be res ponsible 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 gross 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 extrao rdinary, 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, Li cense 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 co st, 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 (Tenant’s Alterations) and the permit and access requirements of Section 2.2 (License; Tenant’s Access to City’s Property) in connection with Tenant’s maintenance and repair operations.
9.3 No Right to Repair and Deduct.
Tenant expressly waives the benefit of 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 terminate this Lease because of City’s failure to keep the Premises, the License Area or any adjoining property (includi ng 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. Withou t limiting the foregoing, Te nant 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 Tena nt 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, mate rial 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) above. In the event Tenant shall not, within thirty (30) days following the imposition of any su
ch 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: 7C827528-DE1C-46E8-9532-85CF4814972A 22 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 cl aim giving rise to such lien. All such sums paid by City and all expenses incurred by it in connection therewith (including reasonable attorneys’ fees) shall be payable to City by Tenant immediat ely. 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 Pr operty, from mechanics’ and material suppliers’ liens. Tenant shall give to City at least fiftee n (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 creat e, 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 writ ten consent of City, which City may give or withhold in its sole discretion.
11. UTILITIES AND SERVICES
11.1 Utilities and Services.
Pursuant to San Francisco Administrative Code Section 99.3, all elec tricity necessary for operations in the Premises shall be purchased from SFPUC, at SFPUC’s standard rates charged to third parties, unless SFPUC determines, in its sole judgment, that it is not feasible to provide such service to the Premises. SFPUC is the provider of electric services to City property, and the Interconnection Services Department of SFPUC’s Power Enterprise coordinates with Pacific Gas and Electric Company and others to implement this service. To arrange for electric service to the Premises, Tenant shall contact th e Interconnection Services Department in the Power Enterprise of the SFPUC through the contact specified in Section 1 (Basic Lease Information) under Utilities and Services. For all other utili ties and services furnished to or used by Tenant (including gas, water, sewer, telephone service, trash collection, and janitorial service), 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. Tenant shall install separate utility meters at the Premises and, when permitted by serving utilitie s, Tenant shall be responsible directly to the serving utilities for all utilities required for Tenant’s use of the Premises.
Tenant shall be responsible for installation a nd maintenance of all fa cilities required in connection with such utility serv ices. Any and all utility improve ments installed by, for, or on behalf of Tenant shall be de emed Alterations and shall be subject to the provisions of Section 7 (Alterations) above. Tenant shall not: (a) connect or use any electrical equipment that exceeds the capacity of the electrical sy stem(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 ma y be shown on the Approved Plans and for any other such modifications at Tenan
t’s sole cost as are reasonably approved in writing in advance by City.
During the Term, Tenant shall be obligated to repair and main tain 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 (excl uding City’s Facilities, except to the extent installed in order to provide electric power to the Premises). 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.
DocuSign Envelope ID: 7C827528-DE1C-46E8-9532-85CF4814972A 23 In the event utility services are purchased by City and provided to Tenant by City, Tenant shall pay as Additional Charges the cost of th e utility service provided to the Premises and attributable to Tenant’s use a nd a reasonable administrative char ge to cover Landlord’s costs (together, the “Utility Charge”). The term “Utility Charge” shall not include sums, if any, payable by Tenant for power provided by SFPUC’s Power Enterprise pursuant to the first paragraph of this Section 11.1. The administrative charge will be base d 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. The term “Utility Charge” shall not include sums, if any, payable by Tenant for power provided by SFPUC’s Power Enterprise pursuant to the opening paragraph of this Section 11.1 . If Tenant is required to pay a Utility Charge to City, at least annually during the Lease term, City 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 Landlor d’s failure to furnish utilities when such failure is caused by acciden t, breakage, repairs (i ncluding replacements), strikes, lockouts or other labor disturbances or di sputes 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 th e 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 here under or to perform each of its other covenants hereunder or constitute or be construed as a constructive or other eviction of Tenant.
11.3 Temporary Power
Notwithstanding anything to the contrary set fo rth in this Section 11, if an interruption in electrical power service occurs for an extended period of time, in Tenant’s reasonable determination, City agrees to allow Tenant the ri ght to bring in a temporary source of power in a mutually agreeable location on th e Property for the duration of the interruption. Tenant will contact City’s Access Contact or Alameda Watershed Manager for access.
12. COMPLIANCE WITH LAWS AND RISK MANAGEMENT REQUIREMENTS
12.1 Compliance with Laws.
Tenant, at Tenant’s expense, shall ma
intain the Premises, any Tenant’s Facilities and
Alterations and any other Im provements and equipment pe rmitted 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 muni cipal authorities (collectively, “Laws”) relating to the Premises or the License Ar ea or the use or occupa ncy thereof, whether foreseen or unforeseen, ordinary as well as extraordinary. Such Laws shall include all Laws DocuSign Envelope ID: 7C827528-DE1C-46E8-9532-85CF4814972A 24 relating to interference caused by radio frequency signals, health and safety, disabled accessibility including the Americans with Disa bilities 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) below), 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 al terations 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 Altera tions, 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 acknowledge and agre e that Tenant’s obligation to comply with all Laws as provided herein is a material part of the bargained-for considerat ion under this Leas e. Tenant’s obligation under this Section 12 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 action may interfere with Tenant’s use or enjoyment of the Premises, the likelihood that the parties cont emplated 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 here in, 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.
Tenant understands and agrees that City is en tering into this Lease in its capacity as a property owner with a proprietary interest in th e Premises and not as a regulatory agency with police powers. Nothing in this Lease shall limi t 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, C ity is in no way modifying or limiting Tenant’s obligation to cause the Premises to be used and occupied in accordance with all Laws as provided above. Tenant further 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 al l 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 rep
resents and warrants that it has acquired or will acquire 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 such licenses, permits or other approvals DocuSign Envelope ID: 7C827528-DE1C-46E8-9532-85CF4814972A 25 current throughout the Term of this Lease, and all frequencies and equipment used by Tenant shall fall within the frequencies which Tenant or its affiliates are authorized to use by the Federal Communications Commission (the “ FCC”). Tenant shall provide a copy of all such licenses, permits and approvals to City. A copy of all conditional use permits approving the Communications Site is attached hereto as Exhibit F.
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 cumula tive 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 beha lf 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 creat e any unusual fire risk, and Te nant shall take commercially reasonable steps to protect City from any potential premises liab ility 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 subordin ate to any reciprocal easemen t 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 affe cting any of the Propert y or City’s interest therein and all renewals, extensions, modificati ons, 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 leas e terminates for any reason or any mortgage or deed of trust is foreclosed or a conveyance in li eu of foreclosure is ma de 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 successo r-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 termin ate this Lease or otherwise dispo ssess Tenant of the Premises in accordance with the terms hereo
f. No further instrument shall be required to make the provisions hereof operative except that City shall give Tenant written no tice 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 recogni tion agreement executed by the holder of such Encumbrance.
DocuSign Envelope ID: 7C827528-DE1C-46E8-9532-85CF4814972A 26 14. DAMAGE OR DESTRUCTION
The parties recognize that the Premises are a small portion of a Property used for, among other things, the operation and protection of a municipal watershed. 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 dama ge or destruction (the “Repair Period”), as determined by City, or if City elects not to repair or re build 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 terminati on, 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 pa rt 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 (License; Tenant’s Access to City’s Property) above, Tenant shall have the right, at its sole expense, to bring onto the Property in a location mutually acceptable to Tenant and City, and to operate, a portable elect ric power generator and/ or mobile wireless communications facility site and telescopic antenna or tower (collectively, “ Temporary Communications System”) in order to provide for contin uous service to Tenant’s customers during such period, provided that neither the placement nor use of such portable electric power generator or Temporary Communications System shall interfere with the operations of City or its other tenants on the Property or any repairs or re building that City elects to perform, or damage any City property, or conflict w ith 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 reasonably required to repair and restor e Tenant’s Facilities. In no event shall City be required to repair any damage to Tenant’s Personal Property or any Tenant’s Facilities, except to the extent caused by City’s ne gligence or willful misconduct, and Tenant shall promptly commence and diligently prosecute such repairs and restoration to completion in accordance with applicable requirements of Sections 2.2 (License; Tenant’s Access to City’s Property) and 7 (Alterations) above. Notwithstanding the foregoing, Te nant shall not install or operate a generator on the Pr
operty without City’s advance written cons ent which may be granted or withheld in City’s sole and absolute discretion. 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 operate a generator or is una ble to operation of 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.
In the event that the repair period would cause the Communication Facility to be inoperable for more than 60 days, City shall permit Tenant to operate a Temporary Communications System if City determines, in its sole discretion that there is sufficient space for the Temporary Communications System near the Premises.
DocuSign Envelope ID: 7C827528-DE1C-46E8-9532-85CF4814972A 27 The parties hereto 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 a ny right to terminate 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 could be undertaken on property in the vicini ty of the Premises. Tenant is aware that the construction of such projects and the activities associated with such constructi on will generate certain adverse impacts, which may result in some inconvenience to or disturbance of Tenant. Such impacts may include, but are not limite d to, increased vehicle and truck traf fic, traffic delays and re-routing impediments to access, loss of street and public pa rking, dust, dirt, construction noise and visual obstructions. Tenant hereby waives any and all claims against SFPUC, City and their Agents based on such inconvenience or disturbance, including any abatement or reduction of Rent.
16. EMINENT DOMAIN
16.1 Eminent Domain
If all or any part of the Premises or License Ar ea 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 Pre mises 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 emin ent domain or any transfer in lieu thereof, City shall have the right to terminate this Lease by written notice to Tena nt within thirty (30) days of the date of the taking.
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 cl aim against City for the value of any unexpired term of this Lease or otherwise except that Te nant 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 pa rties in the event of a taking. Tenant and City each hereby waives and releases any right to te rminate 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.
DocuSign Envelope ID: 7C827528-DE1C-46E8-9532-85CF4814972A 28 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 ma terially 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 (inc luding by merger, acquisition, sale, withdrawal of any general partner, or other transfer of any controlling inte rest 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 leasehol d 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 discre tion, 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. Notwithstandi ng anything to the contra ry 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 Premis es, 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 Genera l 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. Theref ore, while Tenant may charge to a City-approved assignee or 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 leasehol
d 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 DocuSign Envelope ID: 7C827528-DE1C-46E8-9532-85CF4814972A 29 Transfer shall provide in detail the terms and conditions for such proposed Assignment or Sublease and complete information, including substantially final forms of the Assi gnment or Sublease for City review and approval, financial statements, business history, and references about the Assignee or Sublessee and such other info rmation about the proposed assigne e 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 Re nt or other consider ation realized by Tena nt 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 ha s recovered any reasonable broke r’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, if any monetary or other material Event of Default by Tenant is outstanding hereunde r 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 C ity 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 c onsent 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, sha ll constitute a material default by Tenant under this Lease. The acceptance of any Base Re nt 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 al l 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 performed. No Assignment shall be binding on City unless Tenant or Transferee shall deliver to City eviden
ce satisfactory to City that it has ob tained all permits, licens es, or other approvals required to operate as a wireless telecommun ications service provi der 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) below) and an instrument in recordable form that contains a covenant of assumption by such Tran sferee satisfactory in DocuSign Envelope ID: 7C827528-DE1C-46E8-9532-85CF4814972A 30 substance and form to City, and consistent with the requirements of this Section, including an express waiver of entitlement to any relocation assistance and be nefits in connection with this Lease. Tenant shall Indemnify City, as defined in Section 20 (Tenant’s Indemnity) below, for any and all losses arising out of a ny 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 Assignment to a general partner or affiliate of Tenant as provided in Section 17.6 (Permitted Assignment) below, Tenant shall reimburse City on demand for any reasonable costs that may actually 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 c ontrols, is controlled by or is under common control with, Tenant, and has a net worth of at least Ten Million Dollars ($10,000,000.00) (collectively, “Controlling Entity”), or to the Financing Entity, or agent of the Financing Entity to whom Tenant (i) has obligations for borrowed mo ney 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, bank ers’ acceptances and similar facilities or in respect of guaranties thereof, if the Controlling Entity, Financing Entity or agent of the Financ ing 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 Assignmen t or Sublease. Each Assignment or Sublease authorized under this Section must be in compli ance with all the requirements and conditions of Section 17.5 (Assumption by Transferee) above 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 expres s 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 telecommunication 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-l
ocate its facilities on the Premises with ot her facilities or providers or require Tenant to permit other facilities or provide rs to co-locate on Tenant’s faci lities. City’s land 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; provided, however, that Tenant DocuSign Envelope ID: 7C827528-DE1C-46E8-9532-85CF4814972A 31 shall not be under any such obligation if a proposed co-location causes unreasonable interference with Tenant’s existing use of the Premises or would 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, 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 reasonab le 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 commercia lly reasonable percentage of the unamortized costs and expenses (including cap ital expenditures) incurred by Tenant in connection with the development, use, or occupancy of the Premises prior to the co-location. (c) Existing Co-location Arrangements . Tenant represents that it has provided City with (i) a list of all co-location ar rangements at the Premises that Tenant agreed to prior to the Commencement Date, and (ii) a copy 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 hereto as Exhibit H.
17.8 IPM Plan and Form CMD-12B-101.
As a condition to any Assignment, the as signee shall execute Form CMD-12B-101 (as described in Section 29.23(d) (Condition to Lease) below) with supporting documentation and secure the San Francisco Contra ct Monitoring Divisi on’s written approval of such form or acknowledgment that a waiver or exemption applied. As 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) (Restrictions on Use of Chemical Herbicides and Pesticides) above or obtain an exemption, through 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 thirty (3 0) 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 written no tice 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 fro m City in any 12-month period shall constitute a default by Tenant hereunder without any requirement on the party of City to give Tenant notice of such failure or an opportunity to cure except as may be required by Section 1161 of the California Code of Civil Procedure. City may in its sole discretion may, in lieu of providing written notice of such default to Tenant, provide telephonic notic e to Tenant of any futu re monetary defaults during such calendar year by calling Tenant at (877) 231-5447; (b) any failure to perform or comply w ith any other covenant, condition or representation made under this Lease, provided Tenant shall have a period of thirty (30) days from DocuSign Envelope ID: 7C827528-DE1C-46E8-9532-85CF4814972A 32 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 th irty (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 an d thereafter diligently prosecutes the same to completion and Tenant uses its best efforts to co mplete such cure within sixty (60) days after written notice of default from City;
(c) any vacation or abandonmen t of the Premises for more than fourteen (14) consecutive days such that the Premises are no longer being used for th e purposes set forth in Section 5.1 (Permitted Use) above (City acknowledging that the Premises are to be used as an unoccupied transmission facility and, accordingly, l ack 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 Tena nt, or an assignment by Tenant for the benefit of creditors, or any action take n or suffered by Tenant unde r any insolvency, bankruptcy, reorganization, moratorium or other debtor relief act or statute, whether now existing or hereafter amended or enacted, if any such receiver, assi gnment 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) above, 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, effort s to relet the Premises or th e 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 termin ation, 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: 7C827528-DE1C-46E8-9532-85CF4814972A 33 (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 collect ed 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 within thirty (30) days of Tenant’s receipt for the amount of such payment or expense with interest at the Interest Rate from the date the sum is paid or the expens e is incurred until City is reimbursed by Tenant.
Any amount due to City under this subsection shall constitute 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) or fails to comply with Section 5.2(p) , (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-l ocation or Transfer pursuant to Section 17, then upon written notice from City of such failure or unauthorized action, Tenant shall pay, as an Additional Charge, 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 to 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 C ity 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: 7C827528-DE1C-46E8-9532-85CF4814972A 34 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 and 5.2(p) $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 repres ent 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 f ees from time to time to account for inflation, but not more frequently than every five (5) y ears. 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 beyond all applicable notice, cure, and gra ce periods, then City may, at its sole option, remedy such default for Tenant’s account and at Tenant’s expense by providing Tenant with thre e (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 attorney s’ fees, in remedying or attemp ting 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 li abilities, losses, costs, claims, judgments, DocuSign Envelope ID: 7C827528-DE1C-46E8-9532-85CF4814972A 35 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 from: (a) injury to or death of a person, including em ployees 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 Licen se 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 de scribed in clauses (a), (b) or (c) of this Section; or (e) any acts, omissions or negligence of Tena nt, 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 Indemnif ied Parties, except to the extent that such Indemnity is void or otherwise unenforceable under applicable la w 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, cons ultants and experts and re lated costs and City’s costs of investigating any Claim. Tenant spec ifically 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 th ereafter. 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 pr ocure 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 ($5,000,000.00) each occurrence comb ined single limit for bodily injury and property damage, including contract ual liability, independent contra ctors, broad-form all perils property damage, fire damage legal liability (of not less than One Million Dollars ($1,000,000.00)), personal injury, products and completed operations, and explosion, collapse and underground (XCU).
(ii) Worker’s Compensation Insurance in statutory amounts, with employer’s liab
ility coverage not less than One Million Dollars ($1,000,000.00) 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 subrogati on which any insurer of the cont ractor may acquire from the contractor by virtue 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.
DocuSign Envelope ID: 7C827528-DE1C-46E8-9532-85CF4814972A 36 (iii) Business automobile liability insurance with limits not less than One Million Dollars ($1,000,000.00) each occurrence comb ined single limit for bodily injury and property damage, including owned and non-owned a nd hired vehicles, as applicable, if Tenant uses automobiles in connection with its use of the Premises. (iv) Property Insurance coverage, on an all-risk form, or an equivalent form acceptable to City, for one hundred percent (100%) of the replacement costs of the building and associated equipment located on the Premises.
(v) 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 basis, with such scope and coverage as the Risk Manager may require. (b) Environmental Pollution Liability Insurance. Tenant shall procure and maintain throughout the Term, at its expense, or shall cause any contractor performing Alterations or Hazardous Material (as such term defined in Section 27.1(b) ( Hazardous Material) below) remediation on the Premises to procure and mainta in, at its expense, contractor’s pollution legal liability, environmental remediation liability or other environmental insurance with limits of Two Million Dollars ($2,000,000.00) per accident, includi ng coverage for bodily injury, sickness, disease, mental anguish or shock sustained by any person, including death; environmental damages; property damage includi ng physical injury to or destruction of tangible property including the resulting loss of use thereof, clean up 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; sudden and non-sudden pollution conditions including the discharge, dispersal, release or escape of hazardous materials into or upon the Premises, other City property, Tenant’s Facilities or Alterations, the atmosphere or 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 environm ental remediation th at 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 s ite 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. The City and its officers, commissioners, agents, volunteers and employees shall be included as additional insureds. (c) Tenant shall have the right to self-insure with respect to any of the insurance requirements required under this Lease, to the extent permitted by applicable law. If Tenant elects to self-insure with respect to any of the insu rance requirements required under this Lease, on or before the Commencement Date and upon written reque st by the SFPUC, within thirty (30) days of the commencement of each year thereafter, Tenant shall sub mit to the SFPUC a certificate of self-insurance signed by a duly authorized repres entative of Tenant, such certificate evidencing that Tenant’s self-insurance program is adequa tely funded, in full fo rce and effect and in compliance with and subject to all the terms, agreemen ts, covenants, conditions and provisions of this Lease. If Tenant elects to self-insure, Tena nt shall give City prompt written notice of any significant change in or the depl etion of its self-insurance fund. Notwithstanding the foregoing, Tenant is also responsible for causing any contract ors, subcontractors, and/or Agents to maintain commercially reasonable insurance coverages and coverage limits as required under this Lease.
DocuSign Envelope ID: 7C827528-DE1C-46E8-9532-85CF4814972A 37 Any deductibles or self-insured retentions must be declared. All deductibles and self-insured retentions shall be paid by Tenant.
With respect to any claim, loss, or liab ility that would have been covered by the insurance policies (including the status as an “additional insured” thereunder of City, the SFPUC, and their respective Agents and Employees) required by this Lease to be maintained by Tenant but within the self-insured retenti on or deductible amount, Tenant sha ll cover such claim, loss, or liability on the same basis as the insurance arrangements or deductibles on such insurance policies, including such insuranc e carrier responsib ility to protect City, the SFPUC, and their respective Agents and Employees as an “additional insured.”
20.2 General Requirements.
(a) All insurance provided for under this Lease shall be effected under valid enforceable policies issued by insurers of recognized res ponsibility and reasonably approved by City.
(b) Should any of the required insuranc e be provided under a claims-made form, Tenant shall maintain such coverage con tinuously throughout the term hereof and, without lapse, for a period of two (2) 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;
(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 interest s 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 ba sed on acts, omissi ons, 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 eligible to do business in the State DocuSign Envelope ID: 7C827528-DE1C-46E8-9532-85CF4814972A 38 of California and with a general policyholders’ rating of “A-” or better and a financial size ranking of “Class VII” 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 intent to cancel or materially reduce cove rage, 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 cancelle d, 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 designate d 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, togeth er with complete copies 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 cert ificates 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 request, and Tenant shall cause its contractors to provide City with certificates thereafter at least ten (10) days before the expiration dates of expiring pol icies. Tenant and its contractors shall submit or cause their respective insurance brokers to submit requested 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 Tena nt or its contractors fa il to procure required insurance, or to deliver such policies, certifica tes 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.
20.4 Lapsed Coverage.
Notwithstanding anything to the co ntrary in this Lease, City may elect, in its sole and absolute discretion, to terminate this Lease if Te nant allows any required insurance coverage to lapse by: (i) providing Tenant wr itten notice of such lapse and (i i) providing written notice of termination if Tenant fails to reinstate the lapsed coverage within five (5) business days of City’s notice of such default.
20.5 Review of In surance 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 DocuSign Envelope ID: 7C827528-DE1C-46E8-9532-85CF4814972A 39 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 (Environmental Indemnity), or any of Tenant’s other obligations or liabilities under this Lease.
20.7 Tenant’s Facilities and Personal Property.
Tenant shall be responsible, at its expense, for loss or dama ge to Tenant’s Facilities, Alterations and Tenant’s Personal Property.
20.8 City’s Self Insurance.
Tenant acknowledges that City self-insures against casualt y, property damage and public liability risks. City agrees to maintain an ade quate program of self-insurance for public liability risks during the Term and shall not be required to carry any third party insu rance 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 ag ainst the other party for any loss or damage relating to the Property or any operations or conten ts 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 e ndorsement from applicable insu rance carriers issuing policies relating to the Property; provided, the failure to obtain any such e ndorsement shall not affect the above waiver.
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 gross negligence or willful misconduct of City and its Ag ents), including acts or omissions of persons occupying adjoining premises or any part of th e Property adjacent to or connected with the Premises; theft; burst, stopped or le aking water, gas, sewer or stea m 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.
DocuSign Envelope ID: 7C827528-DE1C-46E8-9532-85CF4814972A 40 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 arising from the disr uption 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 expressl y 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 to the extent permitted by law, Tenant fully releases, waives and discharges forever any and all claims, demands, rights, and causes of action against City and its Agen ts for consequential, incidental or punitive damages (including lost profits) arising out of this Leas e, 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 Code Section 7260 et seq.), the Uniform Relocation Assistance Act (42 U.S.C. Section 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 causes of action that it may have against the city under any ex isting or future laws, for any compensation from City not othe rwise provided for herein, upon 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), Tena nt acknowledges that it is familiar with California Civil Code Section 1542, which reads:
A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release a nd that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.
Tenant acknowledges that the releases c ontained herein include all known and unknown, disclosed and undisclosed, anticipated and unan ticipated 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.
DocuSign Envelope ID: 7C827528-DE1C-46E8-9532-85CF4814972A 41 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 and License Area at all reasonable times upon not less than twenty-four (24) hours’ notice (except in the event of an emerge ncy) for any of the following purposes:
(i) To determine whether the Premises and Li cense Area are in good condition and to inspect the Premises (includi ng 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 pur chasers, 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 othe r 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 equipmen t. Accordingly, City shall not enter portions of the Prem ises 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 reasonabl e efforts to notify Te nant prior to such entry and 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 c onsiders 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 Pr emises or any portion thereof. (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 resu lting directly and exclusively DocuSign Envelope ID: 7C827528-DE1C-46E8-9532-85CF4814972A 42 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 Premis es allowed under this Section 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 emergenc y 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 su ch activities, unless the need is occasioned by the acts, omissions or negligence of Tenant, its Agents or Invitees. City sha ll 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’ writte n notice from City, Te nant shall execute, acknowledge and deliver to City or to any party designated by City, a certificate of Tenant stating, to the best of Tenant’s knowledge: (a) that Tenant has accepted the Premises (or, if Tenant has not done so, that Tenant has not accepted the Premises 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 REGUL
ATIONS
Tenant shall faithfully comply with the rules and regulations attached as Exhibit G and any and all reasonable modifications, additions thereto or other reas onable 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: 7C827528-DE1C-46E8-9532-85CF4814972A 43 25. SECURITY DEPOSIT
Tenant shall pay to City within forty-five ( 45) days of the 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 the Basic Leas e Information. City rece ived and holds Five Thousand Dollars ($5,000.00), in C ity’s Security Deposit (Deferred Credits) account, received from Tenant towards the security deposit for this Lease. The remainder of 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 po rtion 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 with 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, a nd Tenant shall not be entitled to interest on such deposit. The amount of the security deposit sh all in no way limit th e 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 E xpiration Date, Tenant shall submit to 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) meas ures 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 Premis es 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 reasonable written approval of the Ge neral Manager. Within sixty (60) days after receipt of such plan, SFPUC will notify Tenant of any modifications or additions to the plan required by 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 othe r termination of th is Lease, Tenant shall peaceably quit and surrender to City the Premis es and License Area in good orde r and their orig inal condition,
normal wear and tear excepted, free of debris an d hazards, after having made the last necessary repair required of Tenant under this Sectio n (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 DocuSign Envelope ID: 7C827528-DE1C-46E8-9532-85CF4814972A 44 remove any other Tenant’s Facilities, includ ing Tenant’s conduits, an d 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 Alterations) above), 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 complete the demolition, removal, or restorati on 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 termination of the Lease as re quired by this Section, Tenant sh all 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, ac knowledge and deliver to City a quitclaim deed to the Premises and any other instrument reasonably requested by City to evid ence or otherwise effect 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 federa l, state, local or administrative law, rule, regu lation, order or requirement relating 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 Respons e, 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 25 316 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) “Investigate 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 DocuSign Envelope ID: 7C827528-DE1C-46E8-9532-85CF4814972A 45 the Property or that has been, is being or threatens to be Released (defined below) 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.
27.2 No Hazardous Material in Premises.
Tenant covenants and agrees that neither Tena nt nor any of its Agen ts 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 an y other part of the Propert y, or transported to or from the Property in violation of Environmental Laws, except that Tenant may use small quantities of Hazardous Materials as needed for routine cl eaning and maintenance of Tenant’s Facilities which are customarily used for 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, such consent not to be unreasonably withheld, conditioned or delayed, 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 Environmen tal Laws. Tenant shall immediately notify Landlord if and when Tenant learns or has r eason 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 beha lf 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 or its Agents. The foregoing Indemnity includes costs incurred in connection w ith any activities required to Investigate and Remediate any Hazardous Material brought onto the Premises or the Property by Tena nt or any of its Agents or Invitees and to restore 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 wh ich actually or poten tially falls within this
indemnity provision even if such allegation is or may be groundle ss, 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 DocuSign Envelope ID: 7C827528-DE1C-46E8-9532-85CF4814972A 46 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 ot herwise 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 shal l 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.
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 inte rference 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-approv ed Tenant’s Facilities or Te nant’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 th erefor. Upon receipt of such notice, City shall have the right to termin ate this Lease upon thirty (30) days’ prior written notice to Tenant. If City elects not to terminate this Lease, Te nant 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 su ch Alterations against Base Rent as it comes due, up to a maximum amount equal to the lesser of (A) the cost estimate c ontained in Tenant’s notice to City described above, or (B) Five Thousand Dollars ($5,000.00). Notwithstanding any other provision in this Lease, in no event shall C ity 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 Pr emises 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 communi
cation or computer equipment used by C ity 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 Fa cilities. Any such interference by Tenant shall be deemed a material breach of this Lease, and Tenant shall, upon notice from City, be responsible for immed iately terminating such interference. In the event any such interference does not cease immediately, the parties acknowledge that continuing interference DocuSign Envelope ID: 7C827528-DE1C-46E8-9532-85CF4814972A 47 may cause irreparable injury and, therefore, City shall have the right to bring action to enjoin such interference or to terminate this Lease immediately upon notice to Tenant, at City’s election.
29. GENERAL PROVISIONS
29.1 Notices
Any notice given under this Lease shall be effective only if in writing and given 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 requeste d, with postage prepaid, to:
(a) Tenant at Tenant’s address set forth in Section 1 (Basic Lease Information), or at any place where Tenant or any agent, offi cer or employee of Te nant 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 reje cted 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 aris ing 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 fu ll 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 comp liance 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 he reof shall affect any other default or performance, or cover any other period of time, other th an 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 hereto.
29.4 Authority.
If Tenant signs as a corporation or a partners hip, each of the persons ex ecuting 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 busin ess in California, that Tenant has full right and DocuSign Envelope ID: 7C827528-DE1C-46E8-9532-85CF4814972A 48 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.
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 oblig ations and liabilities 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, cust omers, 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 conveni ence of reference only and such captions shall in no way define or limit the scope or intent of any provision of this Lease. This Lease has been negotiated at arm’s length and between persons sophisticated and knowledg eable 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 th e notice shall be the next succeedi ng business day. Use of the word “including,” “includes” or simi lar words shall not be construed to limit any general term, statement, or other matter in this Lease, wh ether 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 th e giving by City or SFPUC of any consent, approval, election, or option, the General Manager of 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 SFPUC’s Real Estate Guidelines, as amended or replaced from time to time. Unless otherwise pr ovided in this Lease, whenever City’s or SFPUC’s consent or approval is required to be obtained by Tenant pursuant to this Lease, City or SFPUC may give or withhold such consent or approval 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 th is Lease relating to assignme nt and subletting, the terms, covenants and conditions contained in this Lease shall bind and inur e 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 in terest in the Property as owner or less ee, including any transfer by operation of law, City (or any subsequent la ndlord) shall be reliev ed from all subsequent obligations and liabilities arising under this Lease subsequent to such sale, assignment or transfer.
DocuSign Envelope ID: 7C827528-DE1C-46E8-9532-85CF4814972A 49 29.8 Brokers.
Neither party has had any contact or dealings regarding the leasing of the Premises, or any communication in connection ther ewith, 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 an y other broker or finde r perfects a claim for a commission or finder’s fee based upon any such contact, d ealings 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 appl ication 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 construe d 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 be tween the parties and all prior written or oral negotiations, understandings and ag reements are merged herein. The parties further intend that this Lease shall constitute the complete and excl usive statement of its terms and that no extrinsic evidence whatsoever (including prior drafts here of 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 repres entations or warranties with respect to the Premises, the Property or th is 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 an y of its obliga tions 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 cost s
and other costs of action incurred by the prevai ling party in connection with the prosecution or DocuSign Envelope ID: 7C827528-DE1C-46E8-9532-85CF4814972A 50 defense of such action and enforcing or establis hing its rights hereunder (whether or not such action is prosecuted to a judgment). For purposes of this 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 ba nkruptcy proceedings, and whether or not any action is brought with respect to the matter for which su ch fees were incurred. The term “ costs” shall mean the costs and expenses of counsel to the parties, which may include printing, duplicating and other 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 facili ties of any such Tr ansferee (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 expi ration of the Term with the express consent of City shall be construed to automatica lly extend the Term of this Lease on a month-to- month basis with ongoing adjustments in Base Re nt on each Adjustment Date as set forth in Section 4.2 (Periodic 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 Ho ldover 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. Tena nt acknowledges that th e foregoing provisions shall not serve as permission for the Tenant to hold over, nor serv e 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 party hereto set forth in this Lease shall be cumulative, except as may otherwise be provided herein.
DocuSign Envelope ID: 7C827528-DE1C-46E8-9532-85CF4814972A 51 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 hereof.
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 sole discretion; provided, however, that Tenant shall label Tenant ’s Facilities as required under Section 5.2(d) (Covenant to Label Tenant’s Facilities) above and install warning signs to make individuals aware of risks, in accordance with legal requirements.
29.18 Relationship of the Parties
City is not, and none of the provisions in th is 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 pa rty in any respect hereunder. This Lease is not intended nor shall it be construed to create any third party benefici ary 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) above.
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.
DocuSign Envelope ID: 7C827528-DE1C-46E8-9532-85CF4814972A 52 29.22 Reserved. Intentionally left blank.
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 agai nst any employee of, a ny 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, an cestry, age, height, weight, sex, sexual orientation, gender identity, domestic partner status, marital stat us, disability or Acqui red 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 subcontracts relating to the Premises a non-discrimination clause applicable to such subtenant or other subcontractor in substantially the form of Subsection (a) a bove. In addition, Tenant shall incorporate by refere nce in all subleases and other subcontracts the provisions 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 su ch 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 the work is bei ng 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 ot her than the benefits specified above, between employees with domestic partne rs 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 au thorizing 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 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 contra cting for the lease of City prope rty are incorporated in this Section by reference and made a part of this Ag reement 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 Dollar s ($50.00) for each person for each calendar day DocuSign Envelope ID: 7C827528-DE1C-46E8-9532-85CF4814972A 53 during which such person was discri minated against 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 provisions of the Health Care Accountability Ordinance (HCAO), as set forth in San Francisco Administrative Code Chapter 12Q, including the re medies provided, and implemen ting 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 us ed 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 st andards 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 obliga tions under the HCAO and has impos ed the requirements of the HCAO on subcontractor through the subcontract. Each Tenant shall be responsible 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 Te nant with notice and an opportunity to obtain a cure of the violation.
(e) Tenant shall not discharge, redu ce in compensation, or otherwise discriminate against any employee for notifying C ity 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.
DocuSign Envelope ID: 7C827528-DE1C-46E8-9532-85CF4814972A 54 (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 writte n 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-F ive Thousand Dollars ($25,000.00), 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 ($75,000.00), all the agreements shall be thereafter subject to the HCAO. This obligation arises on the e ffective 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 ($75,000.00) in the fiscal year.
29.25 Notification of Prohibition on Contributions.
For the purposes of this Section, a “ City Contractor” is a party that contracts with, or seeks to contract with, the City for the sale or le asing of any land or buildi ng to or from the City whenever such transaction would require the appr oval 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.
Through its execution of this Agreement, Tenant acknowledges that it is familiar with Section
1.126 of the San Francisco Campaign and Govern mental Conduct Code, which prohibits a City Contractor 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 that cont ract or twelve (12) months after the date that contract is approved. Tenant acknowledges that the foregoing restriction applies only if the contract or a combination or series of contr acts approved by the same i ndividual or board in a fiscal year have a total anti cipated or actual value of $ 100,000 or more. Te nant further acknowledges that (i) the prohibition on contributions applies to Tenant, each member of Tenant’s board of directors, Tenant’s chief executive offi cer, chief financial offi cer 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, and (ii) within thirty (30) days of the submission of a proposal for the contract, the City department seeking to enter into the contract must notif y
the Ethics Commission of the parties and any
subcontractor to the contract. Additionally, Tenant certifies it has informed each of the persons described in the preceding sentence of the proh ibitions contained in S ection 1.126 by the time it submitted a proposal for the contract to the Ci ty, and has provided the names of the persons required to be informed to the City department seeking to enter into that contract within thirty (30) days of submitting its contract proposal to the City department receiving that submittal, and acknowledges the City department receiving that submittal was required to notify the Ethics Commission of those persons.
DocuSign Envelope ID: 7C827528-DE1C-46E8-9532-85CF4814972A 55 29.26 Resource-Efficient City Buildings
Tenant acknowledges that the City and County of San Francisco has enacted San Francisco Environment Code Sections 700 to 713 relating to green building requirements for the design, construction, and operation of buildings owned or leased by City. Tenant hereby agrees that it shall comply with all applicable provisions of such code sections.
29.27 MacBride Principles – Northern Ireland.
The City urges companies doing business in Northern Ireland to move toward resolving employment inequities and encourages them to abide by the MacBri de Principles as expressed in San Francisco Administrative Code Section 12F.1 et seq. The City also urges San Francisco companies to do business with co rporations that abide by the MacBride Principles. Tenant acknowledges that it has read a nd understands the above statement of the City concerning doing business in Northern Ireland.
29.28 Conflicts of Interest.
Through 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; a nd (iii) California Government Code Sections 87100 et seq. and Sections 1090 et seq., and certifies that it doe s 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, Virgin Redwood Ban, and Preventative-Treated Wood Containing Arsenic.
The City urges companies not to import, pur chase, 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 app lication of Sections 802(b) and 803(b) of the San Francisco Environment Code, Tenant shall not provide any it ems to the construction of any Alterations, or otherwise in the performance of this Lease which are tropical hardwoods, tropical hardwood wood products, virgin redwood, or virgin redwood wood products. In the event Tenant fails to comply in good faith with any of th e 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.
Tenant may not purchase pres ervative-treated wood products containing arsenic in the performance of this Lease unless an exemptio n from the requirements of Environment Code Chapter 13 is obtained from the Department of Environment under Section 1304 of the DocuSign Envelope ID: 7C827528-DE1C-46E8-9532-85CF4814972A 56 Environment Code. The term “p reservative-treated wood contai ning arsenic” shall mean wood treated with a preserva tive that contains arsenic, elemen tal arsenic, or an arsenic copper combination, including, but not limited to, chromated copper ar senate preservative, ammoniac copper zinc arsenate preservative, or ammonia cal copper arsenate pres ervative. Tenant may purchase preservative-treated wood products on the list of environmentally preferable alternatives prepared and adopted by the Department of Environment. This provision does not preclude Tenant from purchasing preservative-treated wood containing arsenic for saltwater immersion. The term “saltwater immersion” shall mean a pressure-treated wood that is used for construction purposes or facilities that are partially or totally immersed in saltwater.
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 adver tising prohibition includes the placement of the name of a company producing cigarettes or tob acco 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 adver tising of alcoholic beverages is allowed on the Premises. For purpos es of this section, “alcoholic beverage” shall be defined as set forth in California Business and Professions Code Section 23004, and shall not include cleaning solutions, medical supplies and other products and substances not intended fo r 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 understands and agrees that the C ity’s Sunshine Ordinance (San Francisco Administrative Code Chapter 67) and the State Public Records Law (Gov’t Code Sections 6250 et seq.), apply to this Lease an d any and all records, information, and materials submitted to the City in connection with this Lease. Accordi ngly, any and all such records, information and materials may be subject to public disclosure in accordance with the City’s Sunshine Ordinance and the State Public Records Law. Nothing in th is 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 Service and Packaging Waste Reduction Ordinance.
Tenant agrees to comply fully with and be bound by all of the applicable provisions of the Food Service Waste Reduction Ordina nce, as set forth in the Sa n Francisco Environment Code, Chapter 16, including the remedies provided therein, and implementing guidelines and rules. The provisions of Chapter 16 are inco rporated herein by reference and made a part of this Lease as though fully set forth herein. Accordingly, Tenant acknowledges that City contractors and lessees may not use Food Service Ware for Prepared Food in City Facilities and while performing under a City contract or lease (1) wh ere the Food Service Ware is made, in whole or in part, from Polystyrene Foam, (2) where the Food Service Ware is not Compos table or Recycl able, or (3) DocuSign Envelope ID: 7C827528-DE1C-46E8-9532-85CF4814972A 57 where the Food Service Ware is Compostable and not Fluorinated Chemical Free. The capitalized terms (other than Tenant and City) in the pr evious sentence are defined in San Francisco Environment Code Section 1602.
29.35 San Francisco Packaged Water Ordinance
Tenant agrees to comply with San Francisco Environment Code Chapter 24 (“Chapter 24”). Tenant shall not sell, provide or otherwise distribute Packaged Water, as defined in Chapter 24 (including bottled water), in the performance of this Agreement or on City property unless Tenant obtains a waiver from the City’s Department of the Environment. If Tenant violates this requirement, the City may exercise all remedies in this Agreement and the Director of the 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 Admin istrative Code Chapter 12T (C riminal History in Hiring and Employment Decisions) (“Chapter 12T ”), 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.
(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 su btenants to comply with such provisions. Tenant’s failure to co mply with the obligations in th is subsection shall constitute a material breach of this Lease.
(c) Tenant and subtenants shall not inquir e about, require disc losure 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, invalidate d, or otherwise rendered inoperative; (4) a conviction or any other adjudicatio n 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 i nquire 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 al l solicitations or advertisements for employees that are reasonably likely to reac h persons who are reasonably likely to seek employment with Tenant or subtenant at the Pre mises, that the Tenant or subtenant will consider for employment qualified applican ts with cr iminal histories in a manner consistent with the requirements of Chapter 12T.
DocuSign Envelope ID: 7C827528-DE1C-46E8-9532-85CF4814972A 58 (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 Fr ancisco 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, includ ing but not limited to a penalty of Fifty Dollars ($50.00) for a second violation and One Hundred Dollars ($100.00) 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 additi onal 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 Admin istrative Code Section 23.62 (the “ Local Hiring Requirements”). Improvements and Alterations are s ubject to the Local Hiring Requirements unless the cost for such work is (i) estimated to be less than Seven Hundred and Fifty Thousand Dollars ($750,000.00) per building permit or (ii) meet s any of the other exemptions in the Local Hiring Requirements. Tenant agrees that it shal l 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 Fr ancisco Administrative Code Section 23.62 against the breaching party.
29.38 Contractor Vaccination Requirements.
(a) Tenant acknowledges that it has r ead th
e requirements of the 38th
Supplement to Mayoral Proclamation Declar ing 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 DocuSign Envelope ID: 7C827528-DE1C-46E8-9532-85CF4814972A 59 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.
(b) A Contract subject to the Emergency Declaration is an agreement between the City and any other entity or individual a nd 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 th e 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 Cont ract 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 Lease is or be comes a Contract as defined in the Contractor Vaccination Policy, Tenant agrees that:
(1) Where applicable, Tenant will ensure it complies with the requirements of the Contractor Vaccination Polic y pertaining to Covered Employees, as they are defined under the Emergency Declaration and the Contractor Vaccination Policy, and ensure such Covered Employees are fully vaccinated for COVID-19 or obtain an exemption based on medical or religious grounds; and
(2) If Tenant grants Covered Empl oyees 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).
29.39 Cooperative Drafting.
This Lease has been drafted th rough 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 rule that an ambiguity shall be construed against the party drafti ng 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.
NOTWITHSTANDING ANYTHI NG TO THE CONTRARY CONTAINED IN THIS
LEASE, THE PARTIES ACKNOWLEDGE THAT NO OFFICER OR EMPLOYEE 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 TRANSA CTIONS CONTEMPLATED HEREBY.
DocuSign Envelope ID: 7C827528-DE1C-46E8-9532-85CF4814972A 60 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 CITY’S PUBLIC UTILITIES COMMISSION, IN ITS SOLE AND ABSOLUTE DISCRETION, AND IN ACCORDANCE WI TH CITY’S CHARTER AND ALL OTHER APPLICABLE LAWS.
[SIGNATURES ON FOLLOWING PAGE]
DocuSign Envelope ID: 7C827528-DE1C-46E8-9532-85CF4814972A 61 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:
TENANT:
NEW CINGULAR WIRELESS PCS LLC,
a Delaware limited liability company
By: AT&T Mobility Corporation
Its: Manager
By:_____________________________
Name: __________________
Its: _____________________________
Date:
APPROVED BY:
San Francisco Public Utilities Commission
Pursuant to Resolution No. ____________
Adopted __________________________
APPROVED AS TO FORM:
DAVID CHIU
City Attorney
By: _________________________
Shari Geller Diamant
Deput
y City Attorney
DocuSign Envelope ID: 7C827528-DE1C-46E8-9532-85CF4814972A Director RAN Construction
1/25/2023
Michael Guibord
A-1
EXHIBIT A
Aerial View of City’s Property
[Attached]
DocuSign Envelope ID: 7C827528-DE1C-46E8-9532-85CF4814972A !
!
Pleasanton Sunol Rd
680
680
84 65
65 65
The City does not guarantee that the information is accurate or complete. The City is not responsible for any damages arising from the use of data. Users should verify the information before making project commitments.
Legend
SFPUC Pipelines
SF
PUC Parcels (Fee Owned)
0 1,000
Feet
±
Area of Lease
Aerial View of City’s Property
Lease L3743B to
New Cingular Wireless PCS
Town of Sunol
Date: 8-28-17 Author: JGL
SFPUC Parcels (Easement / Road)
S:\Real_Estate\GIS_Data\arcmap\L3743B_NewCingular_A.mxd 8/28/2017 jlukins San Francisco Public Utilities Commission
Real Estate Services
Aerial photo SFPUC / Pictometry flown 2015
Sunol Yard
Town
of
Sunol
/FL00A7h/FL00A8h/FL00A6h680PleasantonSunolRd
/FL007Dh/FL007Ch84
/FL007Dh/FL007Ch84
Map Area
Exhibit A
Lease Area
~350 sq ftAccess Gate
DocuSign Envelope ID: 7C827528-DE1C-46E8-9532-85CF4814972A
B-1
EXHIBIT B
Depiction of Premises
[Attached]
DocuSign Envelope ID: 7C827528-DE1C-46E8-9532-85CF4814972A 65 The City does not guarantee that the information is accurate or complete. The City is not responsible for any damages arising from the use of data. Users should verify the information before making project commitments.
Legend
SFPUC Pipelines
SF
PUC Parcels (Fee Owned)
0 100
Feet
±
Area of Lease
Depiction of Premises
Lease L3743B to
New Cingular Wireless PCS
Town of Sunol
Date: 1/11/17 Author: JGL
SFPUC Parcels (Easement / Road)
S:\Real_Estate\GIS_Data\arcmap\L3743B_NewCingular_B.mxd 1/18/2017 jlukins San Francisco Public Utilities Commission
Real Estate Services
Aerial photo SFPUC / Pictometry flown 2015
Sunol Yard
Town
of
Sunol
/FL00A7h/FL00A8h/FL00A6h680PleasantonSunolRd
/FL007Dh/FL007Ch84
/FL007Dh/FL007Ch84
Map Area
Exhibit B
Lease Area
~350 sq ft
DocuSign Envelope ID: 7C827528-DE1C-46E8-9532-85CF4814972A
C-1
EXHIBIT C
Tenant’s Existing Facilities
(As-Built Plans pursuant to Section 6 of the Lease)
[Attached]
DocuSign Envelope ID: 7C827528-DE1C-46E8-9532-85CF4814972A DocuSign Envelope ID: 7C827528-DE1C-46E8-9532-85CF4814972A DocuSign Envelope ID: 7C827528-DE1C-46E8-9532-85CF4814972A DocuSign Envelope ID: 7C827528-DE1C-46E8-9532-85CF4814972A DocuSign Envelope ID: 7C827528-DE1C-46E8-9532-85CF4814972A DocuSign Envelope ID: 7C827528-DE1C-46E8-9532-85CF4814972A DocuSign Envelope ID: 7C827528-DE1C-46E8-9532-85CF4814972A DocuSign Envelope ID: 7C827528-DE1C-46E8-9532-85CF4814972A DocuSign Envelope ID: 7C827528-DE1C-46E8-9532-85CF4814972A DocuSign Envelope ID: 7C827528-DE1C-46E8-9532-85CF4814972A DocuSign Envelope ID: 7C827528-DE1C-46E8-9532-85CF4814972A DocuSign Envelope ID: 7C827528-DE1C-46E8-9532-85CF4814972A DocuSign Envelope ID: 7C827528-DE1C-46E8-9532-85CF4814972A
D-1
EXHIBIT D
Confirmation of Commencement Date
[Attached]
DocuSign Envelope ID: 7C827528-DE1C-46E8-9532-85CF4814972A
EXHIBIT D
NOTICE OF COMMENCEMENT DATE
[Date]
Rosanna S. Russell
Real Estate Director
San Francisco Public Utilities Commission
525 Golden Gate Avenue, 10
th Floor
San Francisco, California 94102
RE: Acknowledgement of Commenc ement Date, Lease Between _________________________________________ (“Tenant”), and the City and County of San Francisco (“City”), for the Premises located at ____________________________ Dear Ms. Russell:
This letter will confirm that for all purposes of the Lease, the Commencement Date (as defined in Section 3.2 of the Lease) is ______________, 20__.
Please acknowledge your acceptance of this lett er by signing and returning a copy of this letter.
Very truly yours,
_________________________________
By: ___________________________
Title: ___________________________
Accepted and Agreed:
By: __________________________
Rosanna S. Russell
Real Estate Director
Dated: ________________________
DocuSign Envelope ID: 7C827528-DE1C-46E8-9532-85CF4814972A
E-1
EXHIBIT E
Engineering Guidelines
[Attached]
DocuSign Envelope ID: 7C827528-DE1C-46E8-9532-85CF4814972A
F-1
EXHIBIT F
Conditional Use Permits
[Tenant will provide all of its Conditional Use Permits pertaining to Tenant’s Facilities at the Property within thirty (30) days of receipt of written request therefor from City]
DocuSign Envelope ID: 7C827528-DE1C-46E8-9532-85CF4814972A
G-1
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. Tenant may obtain a gate key from the SFPUC Watershed Manager’s Office. The SFPUC will charge a minimum key replacement fee of Two Hundred Fifty Dollars ($250.00). The SFPUC reserves the right to increase the key replacement fee from time to time.
4. Tenant shall return all keys at the termination of its tenancy and shall be responsible for the cost of replacing any keys that are lost.
5. 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.
6. 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 a nd 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.
7. Tenant shall be responsible for seeing that all its subtenants, employees, agents and invitees comply with these rules and regulations.
DocuSign Envelope ID: 7C827528-DE1C-46E8-9532-85CF4814972A
G-2
8. Tenant assumes all risks from theft or vandalism to the Property and agrees to keep the Property locked as may be required.
9. 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.
10. 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 any new and/or modified rules or regulations prior to the effective date thereof. Tenant agrees to abide by these and such other reasonable rules and regulations.
DocuSign Envelope ID: 7C827528-DE1C-46E8-9532-85CF4814972A
H-1
EXHIBIT H
List of Existing Co-location Parties and Equipment
NONE
DocuSign Envelope ID: 7C827528-DE1C-46E8-9532-85CF4814972A