HomeMy WebLinkAboutLEASE AGREEMENT - 17-00022 - 1145 S 2nd E - Cell TowerM
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LEASE AGREEMENT
THIS LEASE AGREEMENT (the Agreement) is entered into as of the 11 day of March,
2002, between Lili S. Kimmel a Married WoMan (the "LANDLORD") and NTCH-Idaho Inc..
an Idaho Corporation and/or Assigns (The "TENANT)
PROPERTY
LANDLORD is the owner/Lessee of certain real property located in Ma son County, State
of Idaho, and TENANT desires to lease a portion of such real property, containing approximately
jhLrty Six hundred square feet, (3600.00) together with an easement thereto, as hereinafter described
(such portion of real property and such easement being hereinafter called the "Property"). The Property
is more specifically described in Exhibit "A" and substantially shown in Exhibit "C" (record of survey)
attached hereto and made a part hereof.
1. Lease of Property. LANDLORD hereby leases to TENANT the Property, which lease
includes the grant of a nonexclusive right and easement during the term of this Agreement for ingress
and egress, seven (7) days a week, twenty-four (24) hours a day, on foot or motor vehicle, including
trucks, and for the installation and maintenance of utility wires, cables, conduits and pipes over, under
or along the twenty -foot (20) wide easement extending from the nearest public right-of-way, which is
known as S. Second E. , to the Property, as such right-of-way is described on Exhibit "A" and
substantially shown in Exhibit "C" (record of survey) hereto (the "Easement").
2. Initial Terra and Rental. This Agreement shall be for an initial term of Ten (10) years
and shall commence Thirty (30) days following the issuance of a building permit to Tenant by the
issuing governmental authority (hereinafter referred to as the "Commencement Date") The annual
rental payments for the initial ten (10) years shall be as follows:
Site No IF 203
Year one (1)
Year two (2)
Year three (3)
Year four (4)
Year five (5)
Year six (6)
Year seven (7)
Year eight (S)
Year nine (9)
Year ten (10)
PAGE 1
Annual rental payments shall be paid on the Commencement Date, in advance, to Lili S.
Kimmel or to such other person, firm or place as the LANDLORD may, from time to time,
r► designate in writing at least thirty (30) days in advance of any rental payment date. TENANT shall
make all annual rental payments on the anniversary of the Commencement Date through out the lease
term and any renewal terms.
3. Extension of Term. TENANT shall have the option to extend the term of this
Agreement for Four (4) additional consecutive five (5) year periods. Each option for an extended term
shall be deemed automatically exercised without notice by TENANT to LANDLORD unless
TENANT gives LANDLORD written notice of its intention not to exercise any such option, prior to
the beginning of the extended rental term, in which case, the term of this Agreement shall expire at the
end of the then current term. All references herein to the term of this Agreement shall include the term
as it is extended as provided in this Agreement.
4. Extended Term Rental. The annual rental for the extended terms shall be as follows:
Extern W Tenn Annual Rental
1't
2d
3�
4ei
The annual rental for the extended terms shall be payable in the same manner as the annual rental for
1*01 the initial term.
5. Use. TENANT shall use the Property for the purpose of constructing, maintaining and
operating communication facilities and uses incidental thereto, which facilities may consist of such
buildings as are necessary to house telecommunications equipment and for related office space, free
standing monopoles or other types of antenna structures of sufficient height, as determined by
TENANT, now or in the future to meet TENANT's telecommunication needs and all necessary
appurtenances, and a security fence of chain link or comparable construction that may, at the option of
TENANT, be placed around the perimeter of the Property (collectively, the "Communications
Facility"). All improvements to the Property necessary for TENANT's use shall be made at
TENANT's sole expense. LANDLORD grants TENANT the right to use such portions of
LANDLORD's Surrounding Property as are reasonably required for the construction, installation,
maintenance, and operation of the Communications Facility, including (1) the right of ingress, egress,
and regress to and from the Property for construction machinery and equipment, (2) the right to use
such portions of LANDLORD's Surrounding Property with the prior consent of Landlord, which shall
not be unreasonably withheld, as are reasonably necessary for storage of construction materials and
equipment during construction of the Communications Facility. TENANT will maintain the Property
and all of TENANT's improvements on the Property in a reasonable condition.
TENANT, at TENANT's option, may erect monopoles, or self-supporting towers.
LANDLORD grants TENANT the right to clear all trees, undergrowth, or other obstructions and to
trim, cut, and keep trimmed and cut, all tree limbs which may interfere with or fall upon TENANT's
towers or the TENANT's other improvements.
Site No IF 203 PAGE 2
6. Governmental Approvals. LANDLORD shall cooperate with TENANT in its effort to
obtain and maintain in effect all certificates, permits, licenses and other approvals required by
�w governmental authorities for TENANT"s use of the Property.
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7. Indemnification. TENANT shall indemnify and hold LANDLORD harmless against
any liability or loss from personal injury or property damage resulting from or arising out of the use and
occupancy of the Property by TENANT or its employees or agents, excepting, however, such liabilities
and losses as may be due to or caused by the acts or omissions of LANDLORD or its employees or
agents. LANDLORD shall indemnify and hold TENANT harmless against any liability or loss from
personal injury or property damage resulting from or arising out of the use and occupancy of the
Property or LANDLORD's Surrounding Property by LANDLORD or its employees or agents,
excepting, however, such liabilities and losses as may be due to or caused by the acts or omissions of
TENANT or its employees or agents. LANDLORD agrees that TENANT may self -insure against any
loss or damage, which could be covered by a comprehensive general liability policy. TENANT shall
maintain in full force during the initial term and any renewal term of this Agreement, Comprehensive
General Liability Insurance in the amount of $1,000,000.00 per occurrence.
S. Taxes. TENANT shall be responsible for making any necessary returns for and paying
any and all property taxes separately levied or assessed against the leased property and any
improvements constructed by TENANT on the Property during the term of the lease.
9. Termination. TENANT shall have the right to terminate this Agreement by written
notice to LANDLORD at any time upon the occurrence of any of the following events: (a) any
certificate, permit, license or approval necessary for the construction or operation of the
Communications Facility in the manner intended by TENANT is rejected, cancelled, expires, lapses, or
is otherwise withdrawn or terminated, or (b) TENANT determines that, based upon imposed zoning
conditions or requirements, radio frequency propagation tests, or interference with TENANT's
reception or transmission, the Property is inappropriate for the uses intended by TENANT; or (c)
LANDLORD does not have good and marketable title to the Property or does not have the full power
and authority to enter into and execute this Agreement or Property is encumbered in a way which
restricts TENANT's use. Upon such termination, this Agreement shall be come null and void and
LANDLORD and TENANT shall have no other further obligations to each other, other than
TENANTS's obligation to remove its property as hereinafter provided.
10. Removal of Improvements. Title to all improvements constructed or installed by
TENANT on the Property shall remain with TENANT, and all improvements constructed or installed
by TENANT shall at all times be and remain the property of TENANT, regardless of whether such
improvements are attached or affixed to the Property. TENANT, upon termination of this Agreement,
shall, within thirty (30) days, remove all improvements, fixtures and personal property constructed or
installed on the Property by TENANT and restore the Property to its original above grade condition,
reasonable wear and tear excepted, At LANDLORD's option, upon termination of this Agreement
and upon LANDLORD's written notice within thirty (30) days from notification of termination to
TENANT, TENANT will leave the foundation and security fence on the Property to become the
property of LANDLORD. If such removal causes TENANT to remain on the Property thirty (30)
days after termination of this Agreement, TENANT shall pay rent at the then existing annual rate on a
pro rated basis until such time as the removal is completed.
Site No IF 203 PAGE 3
11. Sale of PropgM. If LANDLORD, at any time during the initial or any extended term of
this Agreement, decides to sell the Property, or all or any part of LANDLORD's Surrounding Property,
'%w to a purchaser other than TENANT, such sale shall be subject to this Agreement and TENANT's
rights hereunder. However TENANT will have first right of refusal to buy the Property, provided
TENANT executes an agreement relating to the sale of the Property within thirty (30) days after receipt
of LANDLORD's notice of the terms and conditions of the offer. In the event, TENANT does not
execute a purchase agreement to buy the Property within thirty (30) days of receipt of LANDLORD's
notice of said offer then TENANT's right of first refusal shall be deemed to have been waived and
LANDLORD shall thereafter have the right to sell the Property to a third party.
12. [quiet Enjoyment. LANDLORD covenants that TENANT, on paying the rental and
performing the covenants, terms and conditions required of TENANT contained herein, shall
peaceably and quietly have, hold and enjoy the Property and the leasehold estate granted to TENANT
by virtue of this Agreement.
13. Assignments and Subleasing. This Agreement may be sold, assigned or transferred at
any time by TENANT to TENANT's parent company or any affiliate or subsidiary of TENANT or its
parent company, to any successor entity with or into which TENANT is sold, merged or consolidated,
or to any entity resulting from a reorganization of TENANT or its parent company or to any third
party agreeing to be subject to the terms hereof Otherwise, this Agreement may not be sold, assigned
or transferred without the written consent of LANDLORD, such consent not to be unreasonably
withheld. Notwithstanding the foregoing, TENANT may sublease all or any part of the Property,
including, but not limited to, ground space, tower space, and any non-exclusive easement rights.
14. Condemnation. If the whole of the Property, or such portion thereof as will make the
Property unusable for the purposes herein leased, is condemned by any legally constituted public
authority, then this Agreement, and the term hereby granted, shall, in TENANT's sole option, cease
from the time when possession thereof is taken by the public authority, and rental shall be accounted
for as between LANDLORD and TENANT as of that date. Any lesser condemnation shall in no way
affect the respective rights and obligations of LANDLORD and TENANT hereunder. However,
nothing in this paragraph shall be construed to limit or adversely affect TENANT's right to an award
of compensation from any condemnation proceeding for the taking of TENANT's leasehold interest
hereunder or for the taking of TENANT's improvements, fixtures, equipment, and personal property.
15. Subordination. At LANDLORD's option, this Agreement shall he subordinate to any
deed to secure debt or mortgage by LANDLORD which now or hereafter may encumber the Property,
provided, that no such subordination shall be effective unless the holder of every such deed to secure
debt or mortgage shall, either in the deed to secure debt or mortgage or in a separate agreement with
TENANT, agree that in the event of a foreclosure, or conveyance in lieu of foreclosure, of
LANDLORD's interest in the Property, such holder shall recognize and confirm the validity and
existence of this Agreement and the rights of TENANT hereunder, and this Agreement shall continue
in full force and TENANT shall have the right to continue its use and occupancy of the Property in
accordance with the provisions of this Agreement as long as TENANT is not in default of this
Agreement beyond applicable notice and cure periods. TENANT shall execute in a timely manner
whatever instruments may reasonably be required to evidence the provisions of this paragraph. In the
event the Property is encumbered by a deed to secure debt or mortgage, TENANT shall furnish to
LANDLORD a non -disturbance agreement, and LANDLORD, no later than ten (10) days after receipt
of such non -disturbance agreement, shall return to TENANT such non -disturbance agreement
executed in recordable form by the holder of each deed to secure debt or mortgage.
Site No IF 203 PAGE 4
16. Title Insurance. TENANT, at TENANT's option and sole expense, may obtain a title
r. insurance policy, title commitment, title report, abstract, or any other reports to insure the suitability of
the property for lease. LANDLORD agrees to cooperate with TENANT's efforts to obtain the above-
mentioned documents or obtaining requested documentation as required by the title insurance
company. If LANDLORD fails to provide requested documentation within thirty (30) days of
TENANT's request, TENANT, at TENANT's option, may withhold and accrue the annual rental or
any pro rated portion thereof until such time as all such documentation is received by TENANT.
17. Hazardous Substances. LANDLORD hereby warrants and affirms that to the best of
his knowledge there are no hazardous substances under or around the Property. LANDLORD shall
hold TENANT harmless from and indemnify TENANT against any damage, loss, expense, response
costs or liability, including consultant fees and attorneys' fees, resulting from the presence of hazardous
substances on, under or around the Property or resulting from hazardous substances being generated,
stored, disposed of or transported to, on, under or around the Property as long as the hazardous
substances were not generated, stored, disposed of or transported to, on, under or around the Property
by TENANT or its employees, agents or contractors. TENANT shall hold LANDLORD harmless
from and indemnify LANDLORD against any damage, loss, expense, response costs or liability,
including consultant fees and attorneys' fees, resulting from hazardous substances generated, stored,
disposed of or transported to, on or under the Property as a result of TENANT's use of the Property.
For purposes of this Agreement, "hazardous substances" shall mean (i) any substance which contains
gasoline, diesel fuel or other petroleum hydrocarbons, (ii) any substance which is flammable,
radioactive, corrosive or carcinogenic, (iii) any substance the presence of which on the Property causes
or threatens to cause a nuisance or health hazard affecting human health, the environment, the property
or property adjacent thereto, or (iv) any substance the presence of which on the property requires
investigation or remcdiation under any hazardous substance law, as the same may hereafter be
amended. "Hazardous Substance Law" means the Comprehensive Environmental Response,
Compensation, and Liability Act, 42 U.S.C. ❑ 9601 et seq.; the Resource Conservation and Recovery
Act, 42 U.S.C. L] 6901 et sect.; the Hazardous Materials Transportation Act, 49 U.S.C. ❑ t sec 1801 e .; the
Clean Water Act, 33 U.S.C. ❑ 1251 ems.; the Clean Air Act, 42 U.S.C. ❑ 7401 et seq.; the Federal
Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. ❑ 136 et sm.; the Toxic Substances Control Act,
15 U.S.C. ❑ 2601 et sea.; the Emergency Planning and Community Right to Know Act (SARA Title III)
42 U.S.C. Ll 11001 et sect.; and any applicable state law or regulation.
18. Opportunity to Cure. If TENANT should fail to perform any of the covenants, terms
or conditions of this Agreement (except for the payment of rents), prior to exercising any rights or
remedies against TENANT on account thereof, LANDLORD shall first provide TENANT with
written notice of the failure and provide TENANT with a sixty (60) day period to cure such failure.
19. Governing Law. This Agreement shall be governed and interpreted by, and construed
in accordance with, the laws of the State in which the Property is located.
Site No IF 203 PAGE 5
20. Notices. Ail notices hereunder must be in writing and shall be deemed validly given on
the date when deposited in the United States mail, by certified mail, return receipt requested, addressed
as follows (or to any other address that the party to be notified may have designated to the other party
by like notice at least ten (10) days prior thereto):
TENANT: NTCH-Idaho, Inc., an Idaho Corporation
233 North Main
Pocatello, ID 83204
LANDLORD: Lili B. Kimmel _
4824 West M-10
Quartz Hill CA 93536
The parties may substitute recipient's names and addresses by giving notice as provided hereunder.
Rejection or refusal to accept delivery of any notice, or the inability to deliver any notice because of a
changed address of which no notice was given, shall be deemed to be receipt of any such notice.
21. Binding Effect. This Agreement shall extend to and bind the heirs, personal
representatives, successors and assigns of LANDLORD and TENANT and shall constitute covenants
running with the land.
22. Miscellaneous. This Agreement cannot be modified except by a written modification
executed by LANDLORD and TENANT in the same manner as this Agreement is executed. The
headings, captions and numbers in this Agreement are solely for convenience and shall not be
considered in construing or interpreting any provision in this Agreement. Wherever appropriate in this
Agreement, personal pronouns shall he deemed to include other genders and the singular to include the
plural, if applicable. This Agreement contains all agreements, promises and understandings between
the LANDLORD and TENANT, and no verbal or oral agreements, promises, statements, assertions or
representations by LANDLORD or TENANT or any employees, agents, contractors or other
representations of either, shall be binding upon LANDLORD or TENANT. This Agreement may be
executed in several counterparts, each of which shall constitute an original and all of which shall
constitute the same agreement. At the request of TENANT, LANDLORD agrees to execute a
memorandum or short form of this Agreement in recordable form, attached hereto, setting forth a
description of the Property, the term of this Agreement and other information desired by TENANT
for the purpose of giving public notice thereof to third parties.
23, Confidentiality. LANDLORD agrees that all terms of this Agreement, and any
information furnished to LANDLORD by TENANT in connection with this Agreement, shall be and
remain confidential. LANDLORD shall not disclose any such terms or information without the prior
written consent of TENANT.
24. Survival. The provisions hereof, which by their nature are continuing, shall continue to
bind the parties beyond any termination hereof.
25. Addendum. If LANDLORD and TENANT have agreed to amend any of the foregoing
terms of this ment by the attached Addendum Lease—Agreement, the LANDLORD's initials
%1W. appear here �Uvl, the TENANT's initials appear here [ , and the attached Addendum to Lease
Agreement is incorporated herein and made a part hereof by this reference.
Site No IF 203 PAGE 6
IN WITNESS WHEREOF, the parties hereto have set their hands and seals on the day first
above written.
LANDLORD: Lili B. Kimmel
By: �;&
Name; //Z 1'/' /
Title: /fa jlb G t9rC r
Attest:
Name:
Title:
LANDLORD NOTARY BLOCK (INDIVIDUAL):
STATE OF
COUNTY O
BE ORE a Notary Public in and for said County and State, personally appeared the above-named
! 4-J k I M fit J_ t _ , who acknowledged that s/he did sign the foregoing instrument and that the same is the free act
and decd of said Individual.
IN TESTIMO� �REOF, I have hereunto set my hand and official seal at.1
this day of y
!_002. C 6,
a 3.134
my
LINDA FORA COSTELLO
Commission * 1335218
Notary Public - California
Las Angeles County
1&MyComm.EwinwDeG17,20q6j
L� iV ary Public
Site No IF 203 PAGE 7
TENANT:
NTCH-Idaho, Inc., an Idaho Corporation
By:
Na : a Cui
Tine: Nc�:
Attest:
Name:
Title:
TENANT NOTARY BLOCS.
5FATE OF TW k
COUN'T'Y OF jp'v e'
Lu'-)WwTING Publicfor said County and State, do hereby certify that Larry Capersonally known to me to be theof LATCH -Idaho, Inc., an Idaho Corporation and personally known to
me to he the same persons whose s bscribed the foregoing instrument, appeared before me this day in person
and severally acknowledged that as sur �—J he signed and delivered the said instrument as his free and
voluntary act and as the free and voluntary act and deed of said corporation, for the uses and purposes therein set forth.
1N T OF, I have hereunto set my hand and official seal at
This day , 2D02.
My conunission cx*cs:
Site No IF 203
PAGE 8
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ADDENDUM TO
LEASE AGREEMENT
BETWEEN Lih B. Kimmel, as LANDLORD,
And NTCH-Idaho, Inc,, an Idaho Corporation as TENANT
DATED 3/17/02
LANDLORD and TENANT hereby agree that the terms and conditions of the Agreement are
hereby supplemented and/or amended as follows:
None
Any capitalized term used in this Addendum and not otherwise defined herein shall have the
meaning given such term in the Agreement. In the event of any conflict between the Agreement
(without this Addendum) and this Addendum, this Addendum shall control.
LANDLORD's initials:
TENANT's initials:
%1W [This Addendum page to remain in lease even if not used]
Site No IF 203
PAGE 9
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EXHIBIT A
(Legal description of the Leased Property)
Part of Section 32, Township 6 North, Range 40 East, B.M., Madison County, Idaho described as:
(Basis of Bearing being the Idaho Coordinate System)
Beginning at a point that is N 0°14'15" W 1764.93 feet along the section line and
N 89045'45" E 1213.61 feet and N 0°14'15" W 6.00 feet from the SW corner of said Section 32 and
running thence N 0°14'15" W 60.00 feet; thence N 89°45'45" E 60.00 feet; thence S 0°14'15" E 60.00
feet; thence S 89°45'45" W 60.00 feet to the point of beginning.
Parcel contains 3600 square feet together with a 30 foot wide access and utility easement being 15 feet
both sides of the following described centerline.
Beginning at a point that is N 00°14'15" W 1296.24 feet along the west line of Section 32 from the SW
corner of said Section 32 and nuning thence the following twelve courses one (1) S 88021'49" E
194.99 feet; thence two (2) N 77°02'02" E 120.33 feet; thence three (3) N 80°22'57" E 190.56 feet;
thence four (4) N 86°23'26" E 353.46 feet; thence five (5) N 09°33'38" E 264.44 feet; thence six (6) N
29028'57" E 78.11 feet; thence seven (7) N 78°19'16" E 72.19 feet; thence eight (8) S 66°44'18" E
79.86 feet; thence nine (9) S 38°56'12" E 46.86 feet; thence ten (10) N 26°31'39" E 137.07 feet; (11)
thence N 34°02'50" E 25.42 feet, (12) thence N 89°45'45" E 27.43 feet to the end of said easement.
LANDLORD's initials C�
Site No U 203
TENANT's initials
PAGE 10
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EXHIBIT B
List all Deeds to Secure Debts, Mortgages, Liens or Judgments encumbering the Property.
If none, please state none.
Debts: None
Lender:
Loan Officer Name and Telephone:
Loan Number:
Liens: None
judg rents: None
fv
LANDLORD's initials
Site No IF 203
TENANT's initials
PAGE 11
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S%W
err
EXHIBIT C
Survey of the Leased Property (to be attached at a later date).
LANDLORD'S initials
Site No IF 203
TENANT'S initials
PAGE 12
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