LEASE L-7463 RE WIRELESS COMMUNICATION FACILITY.PDF

COMMERCIAL LEASE NO. 03-118524
ARIZONA STATE LAND DEPARTMENT
Site I.D.: PCH3
THIS COMMERCIAL LEASE is entered into by and between the State of Arizona
as Lessor by and through the Arizona State Land Department and
MARICOPA COUNTY
as Lessee. In consideration of the payment of rent and the performance by the parties of
each of the provisions set forth herein, and intending to be legally bound, the parties agree
as follows:
ARTICLE 1
PARCEL
1.1 Agreement. Lessor hereby leases to Lessee for the term, at the rent, and in
accordance with the provisions set forth herein, the Parcel described in Appendix A
attached hereto (the Parcel) for the uses and purposes specified below, subject to the
provisions of Article 4 (Use of Premises).
1.2 Use. The Parcel shall be used solely and exclusively for: A wireless public
safety telecommunications monopole and antennae facility. The communication facility
shall be constructed in conformance with local jurisdictional zoning and development
requirements.
1.3 Parcel leased 'as_is. Lessee makes use of the Parcel as
5	1	14	1	1	12	1923	2346	57	36	94.874229	is and Lessor
makes no express or implied warranties as to the physical condition of the Parcel.
1.4 Definition. Premises means the Parcel together with all rights
appurtenant thereto expressly granted by this Lease, including Improvements, Removable
Improvements, and personal property located on, below or above the Parcel.
1.5 Definition. “Rent” means Annual Rent, base rent, percentage rent or any
combination thereof, including any and all payments required of Lessee to Lessor.
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ARTICLE 2
TERM
2.1 Commencement; Expiration. The term of this lease commences on
November 13, 2015, and ends on November 12, 2025, unless terminated earlier as provided
in this Lease.
ARTICLE 3
RENT
3.1 Annual Rent. Lessee shall pay rent to Lessor, without notice or
demand, on or before the commencement date of this Lease, and each year thereafter,
annually in advance, on or before the anniversary of the commencement date, for the use
and occupancy of the Parcel during the term of this Lease, without offset or deduction
except as provided hereafter. In the event that Lessee appeals the initial rental value set by
the Land Commissioner for this Lease, and the Board of Appeals determines a rental value
different from the initial rental value set by the Land Commissioner, either party may
terminate this Lease within thirty days after the decision of the Board of Appeals is final.
Lessee agrees to pay rent for this Lease due and payable as follows:
Lease Year 1: $2,400.00
—
Lease Year 2 thru 10: $2,400.00 per year
3.2 Penalty; Interest; Lien. There shall be added to the delinquent rental or
other monies due, a penalty and delinquent interest. The delinquent interest rate shall be
set by the State Treasurer according to law. The penalty shall be the greater of a minimum
processing cost as determined by the Commissioner or five (5%) percent. The delinquent
rent, penalty and interest shall be a lien on the improvements and property on the land.
ARTICLE 4
USE OF PREMISES
4.1 Use. The Premises shall be used solely and exclusively for the purpose
described in Article 1.2 (Use). All others are prohibited.
4.2 Co-location. Subject to Lessee (i) receiving technical and construction
details of the additional user’s proposed installation and Lessee verifying that such
proposed installation will not interfere with Lessee’s facilities or its operation and (ii)
reaching reasonable and mutually acceptable terms and conditions of co-location with the
additional user (including, without limitation, reimbursement of pro-rata capital costs,
payment of modification costs, if any, payment of subrentals, additional user’s agreement
to reasonable continuing non-interference and operational rules and regulations), Lessee
agrees that co-location of other compatible and similar communication users on the
Premises is mandatory where space is available or where facilities can be modified to allow
such use, and wherever non-interference to radio frequencies of Lessee and any approved
sublessees can be assured. Lessee and any additional user shall comply with subleasing
requirements of Article 14.
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4.3 Waste. Lessee shall not conduct or permit to be conducted any public or
private nuisance on the Premises, nor commit or permit to be committed any waste
thereon. Lessee shall report to Lessor and appropriate law enforcement authorities any
known or suspected trespass or waste committed on the Premises.
4.4 Conformity to Law. Lessee shall not use or permit the Premises to be used
in any manner that is not in conformity with all applicable Federal, State, County and
municipal laws, rules and regulations, unless Lessor determines and advises Lessee in
writing otherwise.
4.5 Governmental Approval. Except as provided in Article 4.4 (Conformity to
Law), failure to obtain, or loss of any governmental approval that is prerequisite to the use
for which this lease is issued or that is necessary to construct, maintain or operate any
facilities on the site in connection with that use, shall constitute a breach of this Lease,
subject to the provisions of Article 17 (Lessee Defaults and Lessor’s Remedies).
4.6 Reservations. Lessor excepts and reserves from the Parcel all oil, gases,
geothermal resources, coal, ores, limestone, minerals, fossils, and fertilizers of every name
and description that may be found in or upon the Parcel, and Lessor reserves the right to
enter upon the Parcel for the purpose of prospecting therefor, or extracting any or all of
the commodities therefrom. Lessor reserves the right to issue to other persons, rights to
use the Parcel in a manner not inconsistent with the purposes for which this Lease was
issued. Lessor further excepts and reserves the right to relinquish to the United States
lands needed for irrigation works in connection with a government reclamation project,
and to grant or dispose of rights-of-way and sites for canals, reservoirs, dams, power or
irrigation plants or works, railroads, tramways, transmission lines or any other purpose or
use on or over the Parcel.
4.7 No Water Rights Conferred. This Lease does not confer upon Lessee, its
assignees or sublessees, any express or implied rights to the use or removal of surface or
ground water from the Parcel. Any use or removal of water from the Parcel shall be
pursuant to an independent written agreement with Lessor and no claim thereto shall be
made by Lessee. Any water right established shall attach and be appurtenant to the Parcel.
4.8 Groundwater Conditions. Drilling of well(s) is PROMIBITED without
prior written permission from Lessor per Article 6.2 (Prior Approval Required).
4.9 Quiet Enjoyment. Lessee shall peaceably and quietly enjoy the Parcel
during the term of this Lease so long as Lessee is in compliance with all the provisions of
this Lease.
4.10 Inspection. Lessor, its duly authorized agents, employees and
representatives shall have the right to enter upon and mspect the Parcel and all
Improvements thereon at reasonable time, and in a reasonable manner.
4.11 Surrender. In the event this Lease is not renewed, Lessee shall surrender
peaceably the possession of the Parcel upon expiration of the term of this Lease.
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ARTICLE 5
RECORDS
5.1 Record Keeping; Inspection. Lessee shall make and keep for the term of the
Lease and either (i) five (5) years thereafter; or (ii) until the conclusion of any dispute
concerning this Lease, whichever is later, appropriate books and records concerning the
operation of this Lease, including but not limited to Federal and State tax statements,
receipts and other records. Lessor, its duly authorized agents, employees and
representatives shall have the right at all times during the term of this Lease and for either
(i) five (5) years thereafter; or (ii) until the conclusion of any dispute, whichever is later, to
make reasonable examination of those books, records or other material in order to obtain
information which Lessor deems necessary to administer this Lease.
ARTICLE 6
CONSTRUCTION AND IMPROVEMENTS
6.1 © Definitions. Improvements means anything permanent in character
which is the result of labor or capital expended by Lessee or his predecessors in interest on
State land in its reclamation or development, and which has enhanced the value of the
Parcel. Removable
5	1	6	1	4	3	759	1497	336	47	94.934982	Improvements means anything not permanent in character which is
the result of labor or capital expended by Lessee or his predecessors in interest on State
land.
6.2 Prior Approval Required. Lessee shall not place or construct or permit to
be placed or constructed any Improvement or Removable Improvement on or to the
Parcel, other than:
Public Safety Telecommunication facilities, including: Telecommunications tower and
ancillary equipment as allowed by zoning.
All other improvements are prohibited. Prior to applying for a building permit from the
local government authority or prior to beginning of the construction if no permit is
required, Lessee shall submit a current Application to Place Improvement (“Application”).
No construction shall begin until Lessor approves in writing the Application. The
Application shall include plans and specification (including but not limited to grading,
construction and landscape plans) showing the nature, location, approximate cost, and
quality of the proposed Improvements. Drainage, waste water, and sewage plans must be
submitted with the Application. Plans submitted must be stamped by an Arizona registered
engineer or architect. The work shall be completed by an Arizona registered contractor.
The location of completed Improvements, as-built construction plans stamped by an
Arizona registered engineer or architect, and any other information required by Lessor,
shall be submitted to Lessor within thirty (30) days followmg the completion of
construction on Lessor’s form known as a Report of Improvement Placed With Prior
Approval. Any Improvements placed on the Parcel shall conform to existing laws and
ordinances applicable to the proposed construction in the jurisdiction where the Premises
are located, unless Lessor determines and advises Lessee in writing that such conformity is
not in the best interest of the Trust.
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6.3 Utilities; New Construction. Gas, electric, power, telephone, water, sewer,
cable television and other utility or service lines of every nature shall be placed and kept
underground unless Lessor grants prior written approval otherwise. All buildings and
structures shall be of new construction and no buildings or structures shall be moved from
any other location onto the Parcel without Lessor's prior written approval.
6.4 Annual Statement. Upon request, but not more frequently than once a
year, Lessee shall file with Lessor a sworn statement setting forth the description of any
Improvement(s) placed on the Parcel during the prior lease year and the actual cash value
of such Improvement(s).
6.5 Ownership; Removal. All Improvements placed upon the Parcel by Lessee
shall be the property of the Lessee subject to the terms of this Lease, and shall, unless they
become the property of the Lessor, be subject te assessment for taxes in the name of the
.
Lessee, the same as other property of the Lessee. Not later than ninety (90) days following
the expiration of this Lease, or, subject to A.R.S. § 37-289.B, sixty (60) days following the
- cancellation of this Lease, Lessee may remove those Improvements which belong to it, are
free of any liens and can be removed without causing injury to the Parcel. At its option,
Lessor may waive any of the above listed prerequisites to Lessee’s removal of
Improvements. Lessee may, with Lessor’s prior written approval.and within the time
allowed for removal, sell its bmprovements to the succeeding Lessee.
ARTICLE 7
REPAIRS AND MAINTENANCE
71 Lessee's Obligations. Lessor shall be under no obligation to maintain,
repair, rebuild or replace any Improvement on the Parcel. Lessee shall, subject to the
provisions of Article 12 (Damage) and Article 15 (Eminent Domain) and at its own expense,
keep and maintain the Premises in good order, condition and repair in conformity with all
governmental requirements and if applicable, those of the insurance underwriting board or
insurance inspection bureau having jurisdiction over the Premises, unless Lessor
determines and advises Lessee in writing that such conformity is not in the best interest of
the Trust.
ARTICLE 8
MECHANICS' LIENS
8.1 Payment; Indemnity. _ Lessee shall be responsible for payment of all costs
and charges for any work done by or for it on the Premises or in connection with Lessee's
occupancy thereof, and Lessee shall keep the Premises free and clear of all mechanics’
liens and other liens and encumbrances resulting from work done for Lessee or persons
claiming under it; provided, however, that Lessee may in good faith, and with reasonable
diligence, contest or dispute any such lien claims in any appropriate forum so long as this
Lease or the Leased Parcel are not actually in danger of levy or sale. Lessee expressly
agrees to and shall indemnify and save Lessor harmless against liability, loss, damages,
costs, attorney's fees and all other expenses on account of claims of lien or other
encumbrances of laborers or material men or others for work performed or materials or
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supplies furnished to Lessee or persons claiming under it. Further, any contracts between
Lessee or sublessees and any contractors and subcontractors shall expressly hold Lessor
harmless against any liability arising from such contracts, as described above.
8.2 Notice. Should any such claims of lien or other encumbrances be filed
against the Parcel or any action affecting the title to the Parcel be commenced, the party
receiving notice of such lien or action shall immediately give the other party written notice
thereof.
ARTICLE 9
UTILITIES
‘9.1 ~Lessee's Obligations. Lessee shall be responsible for and shall hold Lessor
harmless from any liability for all charges for water, gas, sewage, electricity, telephone and
any other utility service.
ARTICLE 10
TAXES AND ASSESSMENTS
10.1 Lessee's Obligations. In addition to the rent set herein, Lessee shall timely
pay and discharge, without deduction or abatement for any cause, all duties, taxes, charges,
assessments, impositions and payments, extraordinary as well as ordinary, unforeseen as
well as foreseen, of every kind and nature (under or by virtue of any current or
subsequently enacted law, ordinance, regulation or order of any public or governmental
authority), which during the term are due, imposed upon, charged against, measured by or
become a lien on (i) the Premises; (ii) any Leasehold interest; (iii) the interest of any of the
parties to this Lease or in proceeds received pursuant to this Lease; and (iv) the rent paid
pursuant to this Lease. :
‘ARTICLE il
INSURANCE AND INDEMNITY
11.1 Indemnity, Lessee shall indemnify, defend, save and hold harmless the State
of Arizona, its departments, agencies, boards, commissions, universities and its officers,
officials, agents, and employees (hereinafter referred to as “State of Arizona”) from and
against any and all claims, actions, liabilities, damages, losses, or expenses (including court
costs, attorneys’ fees, and costs of claim processing, investigation and _ litigation)
(hereinafter referred to as “Claims”) for bodily injury or personal injury (including death),
or loss or damage to tangible or intangible property caused, or alleged to be caused, in
whole or in part, by the negligent or willful acts or omissions of Lessee or any of its owners,
officers, directors, agents, employees or contractors, arising out of or related to Lessee’s
occupancy and use of the Leased Premises. It is the specific intention of the parties that the
State of Arizona shall, in all instances, except for Claims arising solely from the negligent
or willful acts or omissions of the State of Arizona, be indemnified by Lessee from and
against any and all Claims. It is agreed that Lessee will be responsible for primary loss
investigation, defense and judgment costs where this indemnification is applicable.
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11.2 Insurance Requirements. Lessee shall procure and maintain for the duration
of the Lease insurance against claims for injury to persons or damage to property which
may arise from or in connection with this Lease. The insurance requirements herein are
minimum requirements for this Lease and in no way limit the indemnity covenants
contained in this Lease. The State of Arizona in no way warrants that the minimum limits
contained herein is sufficient to protect the Lessee from liabilities that might arise out of
this Lease. Lessee is free to purchase such additional insurance as Lessee determines
necessary.
A. Minimum Scope and Limits of Insurance. Lessee shall provide coverage with
limits of liability not less than those stated below:
OL. Commercial General Liability-Occurrence Form. The Policy shall include
bodily injury, property damage, personal injury and broad form contractual liability
coverage.
|
General Aggregate: $2,000,000.00
$1,000,000.00
Personal Injury:
Each Occurrence: $1,000,000.00
Blanket Contractual Liability: $1,000,000.00
Fire Damage (Any one fire): $500,000.00
The policy shall be endorsed to or automatically include the following as additional
insured language: “The State of Arizona, its departments, agencies, boards, commissions,
universities and its officers, officials, agents, and employees shall be named as additional
insureds with respect to liability arising out of the use and/or occupancy of the property
subject to this Lease, as their interests may appear.”
The policy shall contain a waiver of subrogation against the State of Arizona, its
departments, agencies, boards, commissions and its officers, officials, agents and employees
for losses arising from the Lessee.
Each liability policy or policies shall be written on an occurrence basis.
Furthermore, the minimum amount of coverage for the above shall be adjusted upward on
Lessor’s reasonable request to be made no more frequently than once. every two (2) years
so that such respective minimum amounts of coverage shall not be less than the amounts
then required by statute or generally carried on similarly improved real estate in the
County herein described, whichever is greater.
2. Property Insurance. Property insurance shall be required in_ the
Replacement Value amount of the Improvements. Property insurance shall be written on
an “all risk, replacement cost coverage, including coverage for flood and earth movement.
The policy shall contain a waiver of subrogation against the State of Arizona, its
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departments, agencies, boards, commissions and its officers, officials, agents and employees
for losses arising from the Lessee.
B. Additional Insurance Requirements. The policies shall include, or be
endorsed to include, the following provisions:
1. The Lessee's insurance coverage shall be primary insurance with respect to
all other available sources.
2. Lessee’s liability and indemnification obligations pursuant to this Lease shall
not be limited by the coverage provided by Lessee.
Cc. Notice of Cancellation. Unless evidence of replacement coverage equivalent
.
to or exceeding the requirements of the Lease is verified according to subsection E below,
each insurance policy required by the insurance provisions of this Lease shall not be
cancelled or reduced below the requirements of this Lease in coverage or in limits except
after thirty (30) days' prior written notice has been given to the State of Arizona (ten (10)
‘days prior written notice due to non-payment). Such notice shall be sent directly to the
Arizona State Land Department, 1616 W. Adams, Phoenix, Arizona 85007, and shall be
sent by certified mail, return receipt requested.
D. Acceptability of Insurers. Insurance is to be placed with duly licensed or
approved nonadmitted insurers in the State of Arizona with an A.M.
5	1	8	1	2	12	1844	1641	115	35	77.821945	Best rating of not
less than A-VII. The State of Arizona in no way warrants that the above-required
minimum insurer rating is sufficient to protect the Lessee from potential insurer
imsolvency.
E. Verification of Coverage. Lessee shall furnish the State of Arizona with
certificates of insurance (ACORD form or equivalent approved by the State of Arizona) as
required by this Lease. The certificates for each insurance policy are to be signed by a
person authorized by that insurer to bind coverage on its behalf.
All certificates and endorsements are to be received and approved by the State of
Arizona before the Lease Term commences. Each insurance policy required by this Lease
must be in effect at or prior to the commencement of the Lease and must remain in effect
for the duration of the Lease. Failure to maintain the insurance policies as required by this
Lease or to provide timely evidence of renewal will be considered a material breach of the
Lease.
All certificates required by this Lease shall be sent directly to The Arizona State
Land Department, 1616 W. Adams, Phoenix, Arizona 85007. Lease number and location
description are to be noted on the certificate of insurance. In the event a claim is presented
against the state relating to this site or use of this site, or in the event a default has occurred
under this Lease, the State of Arizona reserves the right to require complete, certified
copies of all insurance policies and endorsements required by this Lease at any time,
thereafter, subject to such confidentiality as is permitted pursuant to applicable laws, rules
and regulations.
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F. Approval. Any modification or variation from the insurance requirements in
this Lease shall be made by the contracting agency in consultation with the Department of
Administration, Risk Management Division. Such action will not require a formal] lease
amendment, but may be made by administrative action.
G. Exceptions. In the event the Lessee or sub-Lessee(s) is/are a public entity,
then the Insurance Requirements shall not apply. Such public entity shall provide
Certificate of Self Insurance. If the Lessee or sub-Lessee(s) is/are a State of Arizona agency,
board, commission, or university, none of the above shall apply.
H. Blanket Umbrella Policy. Anything in this Section to the contrary
notwithstanding, any insurance which Lessee is required to obtain pursuant to this Section
may be carried under a “blanket” or wnbrella policy or policies covering other properties
or liabilities of Lessee, so long as the “blanket” or umbrella policy or policies otherwise
comply with the provisions of this Section and provided further that the policies provide
for a reserved amount with respect to the Leased Premises so as to assure that the amount
_of insurance required by this Section will be available notwithstanding any losses with
respect to other property covered by the blanket policies.
ARTICLE 12
DAMAGE
12.1 Lessee's Obligations. If the Parcel or any building or other Improvement
located thereon are damaged or destroyed during the term of this Lease, Lessee may
arrange at its expense for the repair, restoration and reconstruction of the same
substantially to its former condition, but such damage or destruction shall not terminate
this Lease or relieve Lessee from its duties and liabilities hereunder.
ARTICLE 13
TRADE FIXTURES AND PERSONAL PROPERTY
13.1 Lessee's Property. Any trade fixtures, signs, store equipment, and other
personal property installed in or on the Parcel by Lessee or any sublessee shall remain its
property subject to the provisions of this Lease. Lessee shall have the right, provided it is
not then in breach hereunder, at any time to remove any and all of the same, subject to the
restrictions of Article 6.5 (Ownership; Removal).
ARTICLE 14
ASSIGNMENT, SUBLETTING AND ENCUMBRANCE
14.1 Prior Approval Required. Lessee shall not assign this Lease or any interest
therein, nor shall Lessee sublease any portion or all of the Premises without obtaining
Lessor's prior written approval. In no event may this Lease or any interest therein be
assigned or sublet unless Lessee is in full compliance with this Lease. Lessor may require
additional rent in consideration for approval of any sublease. Lessee shall not enter into a
contract of sale, mortgage, lien or other encumbrance affecting this Lease unless a copy is
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filed with Lessor. Sublease approval shall be contingent upon the proposed sublessee
obtaining and complying with the terms of a Special Land Use Permit (“SLUP”) for the
sublessee’s use of the Parcel and Premises. Sublease approval shall terminate automatically
upon the expiration, or cancellation for any reason including non-renewal, of the SLUP. -
14.2 Consent Required. An assignment of this Lease shall not be made without
the consent of all lienholders of record. Lessee may assign all or a portion of the Premises
as allowed by the terms of this Article provided Lessee shall assign Lessee's entire interest
in that portion of the Premises.
14.3 Purpose. There shall be no assignment or sublease made except to an
assignee or sublessee that will use the Premises for the purpose(s) described herein.
«14.4 Lessee Primarily Responsible. Notwithstanding any sublease, Lessee shall
remain responsible to Lessor for the performance of the provisions of this Lease.
14.5 Entire Interest. The assignment of Lessec's entire interest in a portion of.
the Premises shall not relieve Lessee of its responsibility to Lessor for the performance of
the provisions of this Lease as it relates to that portion of the Premises not transferred by
the assignment.
ARTICLE 15
EMINENT DOMAIN
15.1. Expiration. _If at any time during the duration of this Lease the whole or
any part of the Parcel is taken by direct sale, lease, institutional taking under A.R.S. § 37-
441 or acquisition in any manner through condemnation proceedings or otherwise, for any
quasi-public or public purpose by any person, private or public corporation, or any
governmental agency having authority to exercise the power of eminent domain or
condemnation pursuant to any law, general, special or otherwise, this Lease shall expire on
the date when the Parcel is taken or acquired except as otherwise provided.
15.2 Partial Taking; Damages; Rent. In the event of a partial taking and if
Lessor determines that it is in the best interest of the Trust, the Lease may continue in full
force and effect for that portion of the Parcel not taken. As against Lessor, Lessee and any
sublessee shall not have a compensable right or interest in the real property bemg taken
and shall have no compensable right or interest in severance damages which may accrue to
the remainder of the Parcel not taken, nor shall Lessee or any sublessee have any
compensable right or interest in the remaining term of this Leasehold or any renewal.
Rent shall be apportioned as of the day of such taking. Lessor shall be entitled to and shall
receive any awards, including severance damage to remaining state lands that may be
made for any taking concerning the Parcel.
15.3 Lessee's Rights to Award. In the event of any taking, Lessee shall have the
right to receive any and all awards or payments made for any building or other
Improvements on the lands fully placed on the Parcel by Lessee with Lessor's prior written
approval.
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ARTICLE 16
BANKRUPTCY AND INSOLVENCY
16.1 Lessor's Rights. If (i) all or substantially all of Lessee's assets are placed in
the hands of a receiver, and such receivership continues for a period of thirty (30) days; or
(ii) should Lessee make an assignment for the benefit of creditors; or (iii) should Lessee
institute any proceedings under any present or future provisions of the Bankruptcy Code
or under a similar law wherein Lessee seeks to be adjudicated as bankrupt, or to be
discharged of its debts, or to effect a plan of liquidation, composition or reorganization; or
(iv) should any involuntary proceedings be filed against Lessee under such bankruptcy
laws and not be dismissed or otherwise removed within ninety (90) days after its filing, then
this Lease shall not become an asset in any of such proceedings or assignment. In addition
to all other rights and remedies of Lessor provided hereunder or by law, Lessor shall have
the right to declare the term of this Lease at an end and to re-enter the Premises, take
possession and remove all persons, and Lessee shall have no further claim on the Parcel
under this Lease.
ARTICLE 17
LESSEE DEFAULTS AND LESSOR'S REMEDIES
17.1 Conditions. All of the provisions of this Lease are conditions. Breach of
any one of these conditions by Lessee or any sublessee shall be sufficient grounds for
cancellation of this Lease by Lessor, subject to the other provisions of this Article.
17.2 Cancellation. If Lessee fails to keep any provision of this Lease, Lessor may
cancel this Lease and declare Lessee's interest forfeited, and if it appears that this Lease
was procured through fraud, deceit or willful misrepresentation, the Improvements shall
be forfeited to the State. Lessor shall be forever wholly absolved from liability for damages
which might result to Lessee or any sublessee on account of this Lease having been
canceled or forfeited prior to the expiration of the full term, subject to the other provisions
of this Article.
17.3. Breach. In the event of a breach of this Lease which is not curable or
remains uncured after thirty (30) days notice by Lessor of failure to pay rent, taxes or
other assessments, and forty-five (45) days from the receipt of the notice to cure any other
curable default, to Lessee of the breach, Lessor may, in addition to all other remedies
which may be available to Lessor in law or in equity, (i) enter and repossess the Premises or
any part thereof, expelling and removing therefrom all persons and property (either
holding such property pursuant to Lessor's landlord's lien, or storing it at Lessee's risk and
expense, or otherwise disposing thereof), as to which Lessor shall not be liable to Lessee or
any sublessee for any claim for damage or loss which may thereby occur, and (ii) either (a)
terminate this Lease, holding Lessee liable for damages for its breach or (b) treat the Lease
as having been breached anticipatorily and the Premises abandoned by Lessee without
thereby altering Lessee's continuing obligations for the payment of rent and the
performance of those Lease provisions to be performed by Lessee during the Lease term.
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17.4 Liquidated Damages. If Lessor terminates this Lease for Lessee's breach,
Lessee shall be liable to Lessor, as liquidated damages and not as a penalty, an amount,
which at the time of such termination, represents the amount equal to the rent due for the
two (2) subsequent lease years or the remaining term of the Lease, whichever is less. The
liquidated damages will compensate Lessor for the loss of rent from the parcel due to the
default and costs incurred to re-lease the Premises.
17.5 Expenses. Lessee shall pay to Lessor upon demand all costs, expenses and
fees, including attorneys' fees (or market value of attorney’s fees) which Lessor may incur
in connection with the exercise of any remedies on account of or in connection with any
breach by Lessee, plus interest on all amounts due from Lessee to Lessor at the rate set by
the Arizona State Treasurer, according to law.
s» 17.6 Remedies not Exclusive. The remedies hereim granted to Lessor shall not be
exclusive or mutually exclusive and Lessor shall have such other additional remedies
against Lessee as may be permitted in law or in equity at any time; provided, however,
Lessor shall not be relieved of any obligation imposed by law for mitigation of damages,
nor shall Lessor recover any duplicative damages, and Lessee shall be reimbursed by any
subsequent Lessee or purchaser of the Premises for any amount by which the value of
Lessee's Improvements exceed Lessor's damages, notwithstanding any other provision in
‘this Lease to the contrary. In particular, any exercise of a right of termination by Lessor
shall not be construed to end or discharge any right of Lessor to damages on account of
Lessee's breach.
17.7. No Waiver. No waiver of breach of any provision of this Lease shall be
construed as a waiver of succeeding breach of the same or other provisions.
ARTICLE 18
HOLDING OVER
18.1 Prohibition. There shall not be any holding over by Lessee or any assignee
or sublessee, upon the expiration or cancellation of this Lease without Lessor’s prior
written consent. If there be any holding over by Lessee or any assignee or sublessee, the
holding over shall give rise to a tenancy at the sufferance of Lessor upon the same terms
and conditions as are provided for herein with a rent for the holdover period
commensurate with, but in no event less than, the previous year's rent.
18.2 Renewal Application. An application to renew this Lease, properly and
timely filed, may give rise to a period of interim occupancy if the term of this Lease expires
prior to execution of a new lease or the denial of the application to renew.
18.3 Interim Occupancy Conditions. Should interim occupancy occur, on or
before the expiration of this Lease, and annually thereafter, Lessee shall pay rent
established by Lessor (subject to A.R.S. § 37-215(B)). Unless advised in writing by Lessor
to the contrary, all other terms and conditions of this Lease shall remain in full force and
effect.
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ARTICLE 19
ENCUMBRANCES
19.1. Rights. Lessee, and its successors and assigns, shall have the unrestricted
right to mortgage and pledge this Lease, subject, however, to the limitations of this Section.
Any such mortgage/deed of trust or pledge shall be subject and subordinate to the rights of
Lessor, and nothing in this Lease shall be construed to impose upon Lessor any obligation
or liability with respect to the payment of any indebtedness to any hoider of a
mortgage/deed of trust or pledge of this Lease.
19.2 Term. The term of any leasehold mortgage or deed of trust shall not be
longer than the remaining lease term.
* 49.3 Registration. No holder of a mortgage/deed of trust on this Lease shall
have ‘the rights or benefits provided by this Article nor shall the provisions of this Article
be binding upon Lessor, unless and until the name and address of the holder of the
mortgage/deed of trust is registered with Lessor.
19.4 Of Record. If Lessee, or Lessee's successors or assigns, shall mortgage this
Lease in compliance with provisions of this Article, then so long as any such mortgage/deed
of trust of record remains unsatisfied, the following provisions shall apply:
(a) Lessor, upon giving Lessee any notice of default, or any other notice
under the provisions of or with respect to this Lease, shall also give a copy of such notice to
the registered holder of a mortgage/deed of trust on this Lease.
(b) Any holder of such mortgage/deed of trust, in case Lessee shail have a
monetary default hereunder, shall, within thirty (30) days from the receipt of notice have
the right to cure such default, or cause the same to be cured, and Lessor shall accept such
performance by or at the instance of such holder as if the same had been made by Lessee,
all as provided in A.R.S. § 37-289 (A)(2).
(c) Nothing herein contained shall preclude Lessor, subject to the
provisions of this Article, from exercising any rights or remedies under this Lease with
respect to any other default by Lessee during the pendency of any foreclosure or trustee's
sale proceedings.
(d) Any holder of such mortgage/deed of trust, in case Lessee shall have a
default other than a default involving failure to pay rent, taxes or other assessments, shall
have forty-five (45) days from the receipt of notice to cure any curable default.
(e) No failure on the part of Lessor to give the required notice of default
to the holder of a mortgage/deed of trust shall be deemed a waiver of Lessor's continuing
right to give notice of the default.
(f) Upon foreclosure of the mortgage or deed of trust, Lessor shall assign
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this Lease to the holder of the mortgage or deed or trust if all taxes rent and assessment
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payments are current. Nothing herein contained shall be deemed to obligate Lessor to
deliver physical possession of the demised Premises to the assignee under any assignment
entered into pursuant to this paragraph.
(g) No agreement between Lessor and Lessee modifying, canceling or
surrendering this Lease shall be effective without the prior written consent of the
registered mortgagees and lienholders.
(h) No union of the interest of Lessor and Lessee shall result in a merger
of this Lease in the fee interest:
(i) If a default is not cured within the applicable time period, Lessor may
issue an order canceling the Lease. If a cancellation order is issued, the order shall not
become final until any foreclosure action by a mortgagee or other lienholder, registered
with Lessor pursuant to this Article, is finally resolved, if the mortgagee or lienholder does
both of the following:
(4) Within thirty (0) days of the date of issuance of a Notice of Default,
files written notice with Lessor of its intent to proceed with a foreclosure action, and;
(2) Within one hundred twenty (120) days of the date of issuance of a
Notice of Default, has commenced either a foreclosure action in court or a nonjudicial
foreclosure of a deed of trust, and has provided Lessor with a certified copy of the
complaint or other document that officially commences the foreclosure process, and
thereafter prosecutes the foreclosure with reasonable diligence.
19.5 Casualty Loss. A standard Mortgage Clause naming each leasehold
mortgagee may be added to any and all insurance policies required to be carried by Lessee
hereunder on condition that the insurance proceeds are to be applied in the manner that is
not in derogation of Lessor's rights; except that the leasehold mortgage may provide a
manner for the disposition of such proceeds, if any, otherwise payable directly to Lessee
(but not such proceeds, if any, payable jointly to Lessor and Lessee) pursuant to the
provisions of this Lease.
ARTICLE 20
ENVIRONMENTAL MATTERS
20.1 Definition of Regulated Substances and Environmental Laws. For purposes
of this Lease, the term Environmental
5	1	11	1	2	7	1205	2571	138	35	93.798218	Laws shall include but not be limited to any
relevant federal, state or local environmental laws, and the regulations, rules and
ordinances, relating to environmental matters, and publications promulgated pursuant to
the local, state, and federal laws and any rules or regulations relating to environmental
matters. For the purpose of this Lease, the term Regulated
5	1	11	1	6	11	1613	2801	258	34	96.047096	Substances shall include but
not be limited to substances defined as regulated
5	1	11	1	7	9	1407	2858	243	43	95.723961	substance, solid
5	1	11	1	7	11	1818	2858	156	42	79.485565	waste,"
5	1	11	1	7	12	2000	2858	244	34	81.053047	hazardous
waste,"" hazardous
5	1	11	1	8	3	786	2916	234	44	79.691490	materials, “hazardous substances," toxic
5	1	11	1	8	7	1836	2915	234	43	76.099724	materials, toxic
4	1	11	1	9	0	295	2967	1946	53	-1	
5	1	11	1	9	1	295	2967	263	51	0.000000	substances,
inert
5	1	11	1	9	3	813	2975	234	42	76.814598	materials, pollutants, toxic
5	1	11	1	9	6	1644	2973	251	45	56.367474	pollutants, herbicides,
fungicides, rodenticides, insecticides, contaminants, pesticides, asbestos,
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environmental
5	1	1	1	1	2	663	376	224	44	72.807831	nuisance,”
5	1	1	1	1	3	917	376	204	35	92.190987	criminal littering," or petroleum
5	1	1	1	1	7	1721	373	211	46	94.346649	products as defined in
Environmental Laws.
20.2 Compliance with Environmental Laws. Lessee shall strictly comply with all
Environmental Laws, including, without limitation, water quality, air quality; and
handling, transportation, storage, treatment, or disposal of any Regulated Substance on,
under, or from the Premises. Without limiting the foregoing, compliance includes that
Lessee shall: (1) comply with all reporting obligations imposed under Environmental Laws;
(2) obtain and maintain all permits required by Environmental Laws, and provide a copy
to Lessor within ten (10) business days of receipt of the lease; (3) provide copies of all
documentation required by Environmental Laws to Lessor within ten (10) business days of
Lessee's submittal and/or receipt of the documentation; (4) during the term of Lease,
provide copies of all information it receives or obtains regarding any and all environmental
matters relating to the Premises, including but not limited to environmental audits relating
to the Premises regardless of the reason for which the information was obtained or whether
or not the information was required by Environmental Laws; (5) prevent treatment,
storage, disposal, handling or use of any Regulated Substances by Lessee and its agents,
employees and contractors within the Premises without prior written authorization from
Lessor. Lessee shall use commercially reasonable efforts to preclude use of Lessee’s
portion of the Premises by unauthorized persons.
20.3 Designated Compliance Officer. Lessee at all times shall employ or
designate an existing employee (the 'Designated Compliance Officer") who is responsible
for knowing all Environmental Laws affecting Lessee and Lessee's business and monitoring
Lessee's continued compliance with applicable Environmental Laws. Upon request by
Lessor, Lessee shall make the Designated Compliance Officer available to discuss Lessee's
compliance, answer any questions, and provide such reports and confirming information as
Lessor may reasonably request.
20.4 Audit. At any time, Lessor may request Lessee to provide an environmental
audit of the Premises performed by an Arizona registered professional engineer or an
Arizona registered geologist. Lessee shall pay the entire cost of the audit.
20.5 Environmental Assessment. At any time, during the term of the Lease,
Lessor may require Lessee to obtain one Phase I environmental assessment of the Premises
performed by an Arizona registered professional engineer or an Arizona registered
geologist. If based upon the Phase I environmental assessment or its own independent
investigation, Lessor identifies any possible violation of Environmental Laws or the terms
of this Lease by Lessee or its agents, employees or contractors, Lessor may require Lessee
to conduct additional environmental assessments as Lessor deems appropriate for the
purpose of ensuring that the Premises are in compliance with Environmental Laws. The
Phase I assessment, or any other assessment required by Lessor, shall be obtained for the
benefit of both Lessee and Lessor. A copy of the Phase I report shall be provided both to
Lessee and Lessor. Lessor, in its sole discretion, shall have the right to require Lessee to
perform additional assessments of any damage to the Premises arising out of any violations
of Environmental Laws by Lessee or its agents, employees or contractors. If Lessee fails to
obtain any assessments required by Lessor, Lessee shall pay the entire costs of any and all
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assessments required by Lessor, notwithstanding the expiration or termination of the
Lease.
20.6 Indemnity for Environmental Damage. Lessee shall defend, indemnify
and hold Lessor harmless from and against any and all liability, obligations, losses,
damages, penalties, claims, environmental response and cleanup costs and fines, and
actions, suits, costs, taxes, charges, expenses and disbursements, mcluding legal fees and
expenses of whatever kind or nature (collectively, claims or 'damages") imposed on,
incurred by, or reserved against Lessor in any way relating to or arising out of any non-
compliance with any Environmental Laws by Lessee or its agents, employees or
contractors, the existence or presence of any Regulated Substance, on, under, or from the
Premises due to the acts or omissions of Lessee or its agents, employees or contractors, and
any claims or damages in any way relating to or arising out of the removal, treatment,
storage, disposition, mitigation, cleanup or remedying of any Regulated Substance on,
under;.or from the Premises by Lessee, its agents, contractors, or subcontractors.
720.7 Scope of Indemnity. This indemnity shall survive the expiration or
termination of this Lease and/or transfer of all or any portion of the Premises and shall be
governed by the laws of the State of Arizona.
20.8 Lessee's Participation in the Defense. In the event any action or claim is
brought or asserted against Lessor which is or may be covered by this indemnity, Lessee
shall fully participate, at Lessee's expense, in the defense of the action or claim including
but not limited to the following: (1) the conduct of any required cleanup, removal or
remedial] actions and/or negotiations, (2) the conduct of any proceedings, hearings, and/or
litigation, and (3) the negotiation and finalization of any agreement or settlement. For
indemnified matters all final decisions concerning the defense shall be reasonably approved
by Lessor. Lessee's obligations to participate in the defense under this Section shall survive
the expiration or termination of the Lease.
20.9 Restoration. Prior to the termination of the Lease, Lessee shall restore the
Premises by removing any and all Regulated Substances deposited by Lessee or its agents,
employees or contractors. In addition, the restoration shall include, but not be limited to,
removal of all waste and debris deposited by Lessee. Uf the Premises or any portions
thereof are damaged or destroyed from the existence or presence of any Regulated
Substance due to the acts or omissions of Lessee or its agents, employees or contractors, or
if the Premises or any portions thereof are damaged or destroyed in any way relating to or
arising out of the removal, treatment, storage, disposition, mitigation, cleanup or
remedying of any Regulated Substance due to the acts or omissions of Lessee or its agents,
employees or contractors, Lessee shall arrange, at its expense, for the repair, removal,
remediation, restoration, and reconstruction to the Premises to the original condition
existing on the date that. Lessee first occupied the Parcel, to the satisfaction of Lessor. In
any event, any damage, destruction, or restoration by Lessee shall not relieve Lessee from
its obligations and liabilities under this Lease. Lessee's restoration obligations under this
Section shall survive the expiration or the termination of the Lease.
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ARTICLE 21
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NATIVE PLANTS AND CULTURAL RESOURCES
21.1 Cultural Resources.
(a) Pursuant to A.R.S. §§ 41-841 and 41-842, Lessee, Lessee’s employees,
and Lessee’s guests shall not excavate or collect any prehistoric or historic archaeological
specimens on the Parcel without a permit from the Director of the Arizona State Museum
and written approval of Lessor pursuant to the terms of this Lease. Lessee shall
immediately report any unpermitted excavation or collection of archaeological specimens
on the Parcel to the Arizona State Museum and Lessor.
(b) Pursuant to A.R.S. § 41-844, Lessee shall report to the Director of the
Arizona State Museum and Lessor any prehistoric or historic archaeological site, or
paleontological site, that is discovered on the Parcel by Lessee, Lessee’s employees, or
Lessee’s guests, and shall, in consultation with the Director of the Arizona State Museum
and Lessor, immediately take all reasonable steps to secure the preservation of the
discovery.
21.2 Native Plants/Noxious Weeds.
(a) Lessee shall not move, use, destroy, cut or remove or permit to be moved,
used, destroyed, cut or removed any timber, cactus, native plants, standing trees or
products of the land except that which is necessary for the use of the Parcel, and then only
with the prior written approval of Lessor. For undeveloped land, the Lessee must submit a
plant survey prior to the removal of any native plant. If the removal or destruction of
plants protected under the Arizona Native Plant Law (A.R.S. § 3-901 et_seq., or any
successor statutes) is necessary to the use of the Parcel, Lessee shall also obtain the prior
written approval of the Arizona Department of Agriculture. In the event the Lessee
removes the native plants, the Lessee must pay a vegetation fee to the Lessor and this fee is
not a reimbursable improvement.
(b) Lessee is responsible for treatment of all regulated and restricted noxious
weeds listed by the Arizona Department of Agriculture.
ARTICLE 22
MISCELLANEOUS
22.1 Reservation. This Lease grants Lessee. only those rights expressly granted
herein and Lessor retains and reserves all other rights in the Premises.
22.2 Binding Effect. Each provision of this Lease shall extend to, be binding on
and inure to the benefit of not only Lessee but each of its respective heirs, administrators,
executors, successors and assigns. When reference is made in this Lease to either Lessor
or Lessee, the reference shall be deemed to include, wherever applicable, the heirs,
administrators, executors, successors and assigns of the parties. This Lease shall be
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binding upon all subsequent owners of the Premises, and of any interest or estate therein or
lien or encumbrance thereon.
22.3. No Partnership. The relationship of the parties is that of Lessor and
Lessee, and it is expressly understood and agreed that Lessor does not in any way or for
any purpose become a partner of Lessee or a joint venturer with Lessee in the conduct of
Lessee's business or otherwise, and that the provisions of any agreement between Lessor
and Lessee relating to rent are made solely for the purpose of providing a method by which
rental payments are to be measured and ascertained.
22.4 Quitclaim Upon Termination. After the expiration or termination of this
Lease, Lessee shall execute, acknowledge and deliver to Lessor within thirty G0) days after
written;demand from Lessor to Lessee, any document requested by Lessor quitclaiming
any right, title or interest in the Leasehold to Lessor or other document required by any
reputable title company to remove the cloud of this Lease from the Premises.
22.5 ‘Title. The titles to the Articles of this Lease are not a part of this Lease and
shall have no effect upon the construction or interpretation of any part of the Lease.
22.6 Fraud or Misrepresentation . If during the term of this Lease it appears
that there has been fraud or collusion on the part of Lessee to obtain or hold this Lease at a
rent less than its value, or through Lessee's fraud or collusion a former Lessee of the
Premises has been allowed to escape payment of the rent due for former Lessee's use of the
Premises, Lessor may cancel this Lease and the Parcel shall immediately revert to Lessor.
If during the term of this Lease it appears that Lessee has misrepresented, by implication,
willful concealment or otherwise, (i) the value of the Improvements placed on the Parcel by
a former Lessee or any other person; or (ii) Lessee not being the owner of the
Improvements placed on the Parcel by a former Lessee or any other person at the
commencement of the Lease term, Lessor may cancel this Lease and the Parcel shall
immediately revert to Lessor.
22.7 Notices. Any notice to be given or other document to be delivered to
Lessee or Lessor hereunder shall be in writing and delivered to Lessee or Lessor by
depositing same in the United States Mail, with prepaid postage thereon fully prepaid and
addressed as follows:
TO Lessor: Arizona State Land Department
1616 West Adams Street - First Floor
Phoenix, Arizona 85007
TO Lessee: Address of Record
Lessee must notify Lessor by written notice of any change in address within thirty (30)
days. Lessor may, by written notice to Lessee, designate a different address.
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22.8 Lessor's Title. If it is determined that Lessor has failed to receive title to
any of the Parcel, the Lease is null and void insofar as it relates to that portion of the Parcel
to which Lessor has failed to receive title. Lessor shall not be liable to Lessee or any
assignee or sublessee for any damages that result from Lessor's failure to receive title.
22.9 Lessor's Lien. -Lessee grants to Lessor a lien superior to all others in
Lessee's interest in Lmprovements and valuable materials located on the Parcel. Lessor has
the right to recover any rent arrearage and outstanding liabilities of Lessee from Lessee's
interest in the Improvements or valuable materials.
22.10 No Promise to Sell. Lessee acknowledges that it has not been induced to
enter into this Lease by any promise from Lessor or any of its agents, servants or
employees that the Parcel will be offered for sale at any time.
22.11 Cancellation. Pursuant to A.R.S. § 38-511 this Lease may be canceled
within three years after its execution, if any person significantly involved in initiating,
negotiating, securing, drafting, or creating the contract on behalf of the state, its political
subdivisions or any of the departments or agencies of either is, at any time while the
contract or any extension of the contract is in effect, an employee or agent of any other
party to the contract in any capacity or a consultant to any other party of the contract with
respect to the subject matter of the contract.
22.12 Applicable Law. This Lease is subject to all current and subsequently
enacted rules, regulations and laws applicable to State lands and to the rights and
obligations of Lessors and Lessees. No provision of this Lease shall create any vested right
in Lessee except as otherwise specifically provided in this Lease.
22.13 Amendment. This Lease may be amended only in writing and upon
agreement by all parties.
22.14 Attorneys' Fees. In any action arising out of this Lease, the prevailing
party is entitled to recover reasonable attorneys' fees and costs in addition to the amount of
any judgment, costs and other expenses as determined by the court. In the case of Lessor,
reasonable attorney’s fees shall be calculated at the reasonable market value for such
services when rendered by private counsel, notwithstanding that it is represented by the
Arizona Attorney General's Office or other salaried counsel.
22.15 Execution. This document is submitted for examination and shall have no
binding effect on the parties unless and until executed by Lessor (after execution by
Lessee), and a fully executed copy is delivered to Lessee. Upon the execution hereof, at the
request of Lessee, the parties also shall execute, so that Lessee may cause it to be recorded,
a short form of this Lease.
22.16 Arbitration. In the event of a dispute between the parties to this Lease, it
is agreed to use arbitration to resolve the dispute but only to the extent required by A.R.S.
§ 12-1518; and in no event shall arbitration be employed to resolve a dispute which is
otherwise subject to administrative review by the Department.
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22.17 Survey. Af the request of Lessor, Lessee shall submit a current survey
prepared by an Arizona registered land surveyor of the Parcel. The survey shall be
prepared to Lessors satisfaction and the cost of the survey shall be borne by Lessee.
22.18 Mutual Cancellation. This Lease may be terminated as to all or part of the
parcel prior to the expiration date upon written agreement signed by both Lessor and
Lessee. The agreement shall specify the terms and conditions of such a cancellation.
22.19 Non-Availability of Funds. Every obligation of the State under this Lease is
conditioned upon the availability of funds appropriated or allocated for the payment of
-
such obligation. If funds are not allocated and available for the continuance of this Lease,
this Lease may be terminated by the State at the end of the period for which funds are
available. No liability shall accrue to the State in the event this provision is exercised, and
the State shall not be obligated or liable for any future payments or any damages as a
result of termination under this paragraph.
22.20. Non-discrimination. The parties agree to be bound by applicable State and
Federal rules governing Equal Employment Opportunity, Non-discrimination and
Disabilities, including Executive Order No. 2009-09.
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