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Agreement
BID #: N/A
DUE: TBD
VALUE: $45,000.00/year
70
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Red Risk
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Executive Summary
This document outlines a Water Tower Lease Agreement between the Borough of Ship Bottom (Lessor) and an unnamed Lessee, granting the Lessee rights to specific portions of the Borough's water tower and adjacent land space for the installation, maintenance, and operation of a communications facility. The agreement details responsibilities for installation, maintenance, access, utility provision, and adherence to governmental regulations.
Key financial terms include a minimum annual rental rate of $45,000, subject to an annual 3% increase after the first year, and an additional one-time payment of $15,000 due on the Commencement Date. The initial term of the agreement is ten years, with options for three additional five-year renewal terms. The Lessee is also responsible for professional fees related to the Lessor's review and approvals, capped at $5,000 annually.
The agreement also specifies comprehensive insurance requirements, indemnification clauses, and procedures for default and termination. The Lessee is required to maintain various insurance types, including commercial general liability with limits of $5,000,000 per occurrence, and to name the Lessor as an additional insured. The agreement emphasizes compliance with all federal, state, and local laws, particularly regarding environmental and safety standards.
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Automated discovery link found on Ship Bottom website.
Document Text
--- Document: Agreement Document ---
WATER TOWER LEASE AGREEMENT
This Agreement (“Agreement”), effective on the date it is awarded, is by and
between the Borough of Ship Bottom (“Lessor”), with its principal offices located at 1621 Long
Beach
Boulevard,
Ship
Bottom,
New
Jersey
08008
and
_____________________________________________________________________ (“Lessee”),
with its principal offices located at _______________________________________________.
The Lessor and Lessee are at times collectively referred to hereinafter as the “Parties” or
individually as the “Party.”
WITNESSETH
In consideration of the mutual covenants contained herein and intending to be legally
bound hereby, the Parties hereto agree as follows.
1.
LEASE OF RIGHTS TO PROPERTY; OBLIGATIONS
1.01. Rights to Property. Lessee is granted the right to a certain portion of that certain
space (“Tower Space”) on the Lessor’s water tower (“Tower”) located at Block 58, Lot 4, as
shown on the Tax Map of the Lessor and commonly known as 106 West 17th Street, Ship Bottom,
New Jersey (“Property”), together with a parcel of land (“Land Space”) sufficient for the
installation of Lessee’s equipment platform and/or shelter, if necessary for the Lessee’s use of the
Tower Space. Except as set forth herein: (i) as depicted in the elevation plans attached as Exhibit
A, which is incorporated herein by reference, the Tower Space is limited to the specific areas on
the structural legs of the Tower; and (ii) as set forth in the site plans attached as Exhibit B, which
is incorporated herein by reference, the Land Space is limited to the specific area of the property
designated and subject to the rights of other existing lessees and the Lessor to the Land Space.
Lessee shall use the Tower Space and Land Space solely for the purpose of constructing,
maintaining, repairing, and operating a communications facility, a communications equipment
shelter, if necessary, and uses incidental thereto.
1.01.1. Lessee’s rights to locate, install, maintain, and operate the wireless
communications equipment, proposed structures, antennas, coaxial cables, mounting brackets,
equipment, base stations and units, paving, landscaping, security measures, all structure, and
accessory structures, and any improvements and personal property relating thereto (collectively
“Equipment and Property”) on the Tower Space shall be limited to the location and scope set forth
in Exhibit A, which is subject to amendments required by the Lessor’s engineer (“Borough
Engineer”) or written requests for modification by the Lessee and the written approval of the
Borough Engineer and Lessor, as to the location of the Equipment and Property, which approval
shall not be unreasonably withheld. The Lessee’s use and the location and scope of the Tower
Space shall be limited by the Lessor’s need to continue to use the Tower as a water tower, the
public health, welfare, and safety, and the terms of this Agreement, including, but not limited to,
the requirements of Paragraph 1.01.3.
1.01.2. Lessee’s rights to locate, install, maintain, and operate the Equipment and
Property, such as ancillary ground equipment and accessory structures, in the Land Space shall be
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limited to the location and scope set forth in Exhibit B, which is subject to amendments required by
the Lessor’s engineer (“Borough Engineer”) or written requests for modification by the Lessee and
the written approval of the Borough Engineer and Lessor, as to the location of the Equipment and
Property, which approval shall not be unreasonably withheld. The Lessee’s use and the location
and scope of the Land Space shall be limited by the Lessor’s need to use the Property for public
purposes, the public health, welfare, and safety, and the terms of this Agreement, including, but not
limited to, the requirements of Paragraph 1.01.3.
1.01.3. The Lessee shall design, construct, and install Equipment and Property and
Utility Equipment on the Tower Space, in the Land Space, and in the Right of Way in such a
manner that provides sufficient space for and does not encroach upon or interfere with the existing
communications providers and lessees and the existing equipment located on the Tower and in the
Land Space.
1.02. Installation, Placement, Collocation, Etc. The location, installation, placement,
collocation, and replacement of any and all Equipment and Property pursuant to the terms of this
Agreement shall require the approval of the Lessor and the Borough Engineer, shall be in
accordance with Exhibit A and Exhibit B, and shall comply with and obtain all local, state, and
federal regulations and approvals. For all such requests, the Lessee shall provide to the Lessor three
(3) sets of proposed construction plans and one (1) electronic set for any and all location,
installation, placement, collocation, and replacement of its Equipment and Property. The plans
shall include a fully dimensioned site plan drawn to scale eshowing the proposed locations for
ground area required, the height of antenna, type and sizing of antenna mountings, the proposed
type and height of any fencing, the proposed landscaping, and the proposed sizing and type of
construction materials for all structures. Nothing shall be located, installed, placed, replaced,
constructed, collocated, or improved at the Property until the plans have been approved by the
Lessor and the Borough Engineer, and the approvals by the local, state, and federal approvals, as
required, are obtained by the Lessee. The installation, maintenance, replacement, removal, etc. of
any and all Equipment and Property shall be at Lessee’s sole cost and expense.
1.03. Access to Tower and Grant of Right of Way. Lessee is granted a non-exclusive and
subordinate right of way (“Right of Way”) 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, poles, cables, conduits, and pipes (collectively “Utility
Equipment”) over, under, or along a right-of-way to be proposed by the Lessee and approved by
the Lessor and the Borough Engineer, which shall not be unreasonably withheld, extending from
the nearest public right-of-way to the Land Space over and through the Property between the Land
Space and the Tower Space for the installation and maintenance of the Equipment and Property
and Utility Equipment. Upon approval of the Right of Way, same shall be attached as Exhibit C,
which is incorporated herein and deemed an approved amendment to this Agreement upon the
foregoing approval. Except in the case of emergency, the Lessee may use and access the right of
way upon prior notice to the Lessor’s Department of Public Works during regular business hours
or to the Borough of Ship Bottom Police Department after regular business hours. Said Right of
Way is an easement in gross and shall expire upon the termination of this Agreement and is
subject to the following restrictions and limitations: (i) the Right of Way and Lessee’s use of
same shall not interfere with the Lessor’s quiet enjoyment and use of the Property and area of the
3
Right of Way; (ii) Lessee’s rights arising out of the Right of Way shall at all times be
subordinate to the Lessor’s rights to the area in the Right of Way and the existing lessees use of
the area in the Right of Way; (iii) the Lessee’s use of the Right of Way in excess of the foregoing
rights, ingress and egress, and to maintain existing utilities on or under the Right of Way shall be
subject to the Lessor’s consent, terms, and schedule at the discretion of the Lessor; and (iv) for
any installation work above ground or underground, the Lessee shall be required to obtain
approval from the Lessor and the Borough Engineer and shall be required to remit payment of all
costs relating to the Lessor’s professionals for such review of each request in accordance with
Paragraph 2 of this Agreement, and shall be subject to the Lessor’s approval, which shall not be
unreasonably withheld, as well as the Lessor’s scheduling. Only authorized engineers,
employees, properly authorized contractors of Lessee, or persons under their direct supervision
shall be permitted to enter said Right of Way.
1.04. Replacement. Lessee is granted the right to replace the Equipment and Property
and Utility Equipment with similar and comparable equipment and property in accordance with the
requirements of this Agreement, provided said replacement does not increase loading on the
Tower, is approved by the Lessor and the Borough Engineer, does not increase the overall amount
or size of the Equipment and Property, does not interfere with any other tenants located at the
Property, and otherwise complies with all of the terms of this Agreement.
1.05. Condition of Property, Maintenance, Expense, and Safety. Lessee shall, at its own
expense, maintain all Equipment and Property and Utility Equipment installed at the Property
pursuant to this Agreement in a safe condition, good order, and repair, and in such a manner so
as to not conflict with the existing use of the Tank Space, Land Space, and Property by the
Lessor or others. Lessee shall keep the portion of the Property, including the Land Space, Tower
Space, and Right of Way leased to and used by Lessee for the Equipment and Property and
access to the Equipment and Property free from debris and anything dangerous, noxious, or
offensive in nature or which would create a hazard or undue vibration, heat, noise, or
interference. Lessee shall possess the sole responsibility for the repair and security of its
Equipment and Property and Utility Equipment. Lessor reserves the right to inspect the
Equipment and Property and Utility Equipment upon ten (10) days written notice to Lessee, except
in emergency situations, defined by the Lessor, in which the Lessor may immediately inspect the
Equipment and Property and Utility Equipment and shall provide written notice to the Lessee
within a reasonable amount of time upon the termination of the emergency.
1.06. Subordination of Rights. Lessee shall maintain and use the Tower, Tower Space,
Land Space, Property, and Right of Way pursuant to this Agreement in such a manner so as not to
conflict with the existing or future uses of the Property and Tower by the Lessor.
1.07. Integrity of Tower. Lessee’s use of the Tower shall not damage or impair the
strength of the Tower and the accessories thereon, nor interfere with the maintenance or lighting
systems on the Tower. Within thirty (30) days of the installation and construction of the Equipment
and Property, the Lessee shall submit a written report from a licensed professional engineer
certifying to the structural integrity of the installation of the Equipment and Property and all
antenna mounted upon the Tower Space are secure and that they meet or exceed applicable design-
to, structure, and construction safety requirements.
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1.08. Contractors and Employees. Lessee shall utilize only qualified contractors and
employees to install, repair, remove, and maintain the Equipment and Property and Utility
Equipment upon the Property, including, but not limited to, the proposed structures, antennas,
mounting brackets, equipment, wireless communications equipment, base stations, paving,
landscaping, security measures, all structure, accessory structures, and any improvements relating
thereto.
1.08.1. All agents, employees, independent contractors, and all others working on
behalf of, at the direction, or request of the Lessee shall conduct themselves in an orderly and
respectable manner in connection with the operation of all Equipment and Property and Utility
Equipment.
1.09. Camouflaging. Lessee shall be required to paint the Equipment and Property and
Utility Equipment, including, but not limited to, conduits, cables, and equipment installed to match
the color of the Tower or shall have covers installed to match the color of the water tank, provided
that such paints and/or covers are approved by the Lessor and the Borough Engineer and do not
void any warranties or materially affect the operation of the Equipment and Property and Utility
Equipment, including, but not limited to, all conduits, cables, and equipment. If such warranties or
operations are materially affected by the painting or covering requirement, Lessee shall be required
to take reasonable measures requested by the Lessor to camouflage the Equipment and Property
and Utility Equipment, including, but not limited to, conduits, cables, and equipment.
1.10. Governmental Approvals and Requirements. Lessee shall be responsible for
obtaining any and all federal, state, county, and/or municipal approvals, licenses, and permits
relating to and/or arising out of this Agreement (collectively “Governmental Approvals”). Lessee
shall comply with all applicable governmental laws, rules, regulations, and orders respecting the
Property and the Tower and the Lessee’s use thereof. It is understood and agreed that Lessee’s
ability to use the Tower Space and Land Space is contingent upon its obtaining all Governmental
Approvals after the execution date of this Agreement.
1.10.1. Lessor shall cooperate with Lessee in its effort to obtain such approvals
and shall take no action which would adversely affect the status of the Property with respect to
the proposed use thereof by Lessee.
1.11. Interference. Lessee’s Equipment and Property and Utility Equipment may not
and shall not be permitted to interfere with any communications equipment installed by Lessor,
any other communications providers presently leasing any property from Lessor, any of the
existing wireless and radio equipment and/or frequencies owned and/or operated by Lessor, and
any other lessor entering into a lease agreement upon the Tower. Lessee agrees to install
Equipment and Property and Utility Equipment of the type and frequency that will not cause
harmful interference that is measurable in accordance with then existing industry standards to
any equipment of Lessor or other tenants at the Property that existed on the Property prior to the
date this Agreement is executed by the Parties. In the event any after-installed Lessee’s
Equipment and Property and Utility Equipment causes such interference, and after Lessor has
notified Lessee in writing of such interference, Lessee shall take all reasonable steps necessary to
correct and eliminate the interference, including but not limited to, at Lessee’s option, powering
5
down such Equipment and Property and Utility Equipment and later powering up such
Equipment and Property and Utility Equipment for intermittent testing. In no event shall Lessor
be entitled to terminate this Agreement or relocate the Equipment and Property and Utility
Equipment as long as Lessee is making a good faith effort to remedy the interference issue,
except that Lessee shall turn off any such Equipment and Property and Utility Equipment
causing interference to Lessor’s emergency or police communications immediately and such
shall remain powered down and turned off until the issue is resolved by Lessee, and except that
in the event that Lessee is unable to resolve the non-emergency interference within four (4)
months, Lessee shall be in default, this Agreement shall terminate, and the Lessee shall comply
with all such requirements set forth in this Agreement, including, but not limited to Paragraph
7.02.1. Lessor agrees that Lessor and/or any other tenants of the Property who in the future take
possession of the Property will be permitted to install only such equipment that is of the type and
frequency which will not cause harmful interference which is measurable in accordance with
then existing industry standards to the then existing Equipment and Property and Utility
Equipment of Lessee. The Parties acknowledge that there will not be an adequate remedy at law
for noncompliance with the provisions of this Paragraph, and, therefore, either Party shall have
the right to equitable remedies, such as, without limitation, injunctive relief and specific
performance.
1.11. Local Approvals. Lessee shall not be required to apply for approval by the local
zoning authority in order to commence construction, installation, etc. In addition to the Lessor and
Borough Engineer approvals required by this Agreement, the Lessee may begin construction,
installation, etc., upon approval by the Lessor of the required building and other permits from the
Borough Construction Official. The approval of the required building and other permits shall not
be unreasonably withheld, denied, conditioned, or delayed.
1.12. Rights Subject To. The rights conveyed to the Lessee pursuant to this Agreement
are subject to the following: (i) any and all covenants, easements, and restrictions of record, if any,
the building and zoning ordinances of the Lessor and such facts as an accurate survey and title
search may disclose; (ii) the existing utilities, utility lines, and cable facilities that traverse the
Property, if any; and (iii) the Lessor’s use of the Property.
1.13. Lessor and Borough Engineer Approvals. All approvals or denials by the Lessor
and/or the Borough Engineer required by this Agreement shall be made within a reasonable
amount of time, except that, in no circumstance shall the Borough Engineer and Lessor take
more than thirty (30) days of receipt of any such requests by Lessee.
2.
PROFESSIONAL FEES
2.01. Reimbursement of Professional Fees. Lessee shall be responsible for the payment
of the Lessor’s professional fees relating to and arising out of and/or relating to the Lessor’s
professionals’ review, investigations, and approvals required and/or provided for in this
Agreement.
2.01.1. The reimbursement and payment of any such fees set forth in Paragraph
2.01 shall be due within sixty (60) days of presentment.
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2.01.2. The reimbursement of and payment of any such fees shall be capped at
Five-Thousand Dollars ($5,000.00) in each year.
3.
TERM; CONSIDERATION; ELECTRICAL
3.01. Term and Rental Rate. This Agreement shall be effective as of the date of
execution by both Parties and the initial term shall be for ten (10) years, which shall commence
on the Commencement Date (as hereinafter defined) at which time the rental payments shall
commence and be due at a total annual rental of __________________ Dollars ($____________)
to be paid in equal monthly installments on the first day of the month, in advance, made payable
to “Borough of Ship Bottom” and delivered or sent by regular mail to the Lessor’s Chief
Financial Officer or to such other person, firm, or place as Lessor may, from time to time,
designate in writing at least thirty (30) days in advance of any rental payment date by notice
given in accordance with this Agreement. The Commencement Date shall be the first day of the
calendar month following sixty (60) days from the date this Agreement is fully executed.
3.01.1. Upon agreement of the Parties, Lessee may pay rent by electronic funds
transfer and in such event, Lessor agrees to provide to Lessee bank routing information for such
purpose upon request of Lessee.
3.01.2. This Agreement shall automatically be extended for three (3) additional
five (5) year terms unless Lessee or Lessor terminates it at the end of the then current term by
giving the other Party written notice of the intent to terminate at least six (6) months prior to the
end of the then current term.
3.01.3. The annual rent shall increase at a rate of three percent (3.00%) per annum
staring with the second year of the initial term and increasing three percent (3.00%) per annum for
each subsequent year of the initial term, first renewal term, second renewal term, third renewal
term, and fourth renewal term as follows.
INITIAL TERM
First Year – Annual Rent Set by Highest Bid (minimum $45,000.00)
Second Year through Tenth Year – 3.00% per annum increase
FIRST RENEWAL TERM
First Year through Fifth Year – 3.00% per annum increase
SECOND RENEWAL TERM
First Year through Fifth Year – 3.00% per annum increase
THIRD RENEWAL TERM
First Year through Fifth Year – 3.00% per annum increase
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3.01.4. As additional consideration, the Lessee shall pay to the Lessor the amount
of $15,000.00 on or before the Commencement Date, which shall, inter alia, offset Lessor’s
professional and staff costs relating to and/or arising out of this Agreement, related
specifications, and award of this Agreement.
3.02. Rental Documentation. Lessor hereby agrees to provide to Lessee certain
documentation (“Rental Documentation”) evidencing Lessor’s interest in and right to receive
payments under this Agreement, including, without limitation: (i) documentation acceptable to
Lessee in Lessee’s reasonable discretion, evidencing Lessor’s good and sufficient title to and/or
interest in the Property and right to receive rental payments and other benefits hereunder; (ii) a
complete and fully executed Internal Revenue Service Form W-9, or equivalent, in a form
acceptable to Lessee, for any Party to whom rental payments are to be made pursuant to this
Agreement; and (iii) other documentation reasonably requested by Lessee relating to the title to
the Property and Lessor’s status. From time to time during the Term of this Agreement and
within thirty (30) days of a written request from Lessee, Lessor agrees to provide updated Rental
Documentation in a form reasonably acceptable to Lessee. The Rental Documentation shall be
provided to Lessee in accordance with the provisions of and at the address given in Paragraph
8.09. Delivery of Rental Documentation to Lessee shall be a prerequisite for the payment of any
rent by Lessee and notwithstanding anything to the contrary herein, Lessee shall have no
obligation to make any rental payments until Rental Documentation has been supplied to Lessee
as provided herein.
3.02.1. Within fifteen (15) days of obtaining an interest in the Property or this
Agreement, any assignee(s), transferee(s), or other successor(s) in interest of Lessor shall
provide to Lessee Rental Documentation in the manner set forth in the preceding Paragraph.
From time to time during the Term of this Agreement and within thirty (30) days of a written
request from Lessee, any assignee(s) or transferee(s) of Lessor agrees to provide updated Rental
Documentation in a form reasonably acceptable to Lessee. Delivery of Rental Documentation to
Lessee by any assignee(s), transferee(s), or other successor(s) in interest of Lessor shall be a
prerequisite for the payment of any rent by Lessee to such Party and notwithstanding anything to
the contrary herein, Lessee shall have no obligation to make any rental payments to any
assignee(s), transferee(s), or other successor(s) in interest of Lessor until Rental Documentation
has been supplied to Lessee as provided herein.
3.03. Electrical and Utilities. Lessee shall, at all times during the term of this
Agreement, provide and be responsible for the payment of any and all electrical service,
telephone service, water, gas, sewer, and any and all required other utilities and utility access for
its use of the Property, as well as any costs relating to and/or arising therefrom. If permitted by
the local utility company servicing the Property, Lessee shall furnish and install an electrical
meter at the Property for the measurement of electrical power used by Lessee’s installation. In
the alternative, if permitted by the local utility company servicing the Property, Lessee shall
furnish and install an electrical sub-meter at the Property for the measurement of electrical power
used by Lessee’s installation. In the event such sub-meter is installed, the Lessee shall pay the
utility directly for its power consumption if billed by the utility; if not billed by the utility, then
the Lessee shall pay the Lessor thirty (30) days after receipt of an invoice from Lessor indicating
the usage amount based upon Lessor’s reading of the sub-meter. All invoices for power
8
consumption shall be sent by Lessor to Lessee to the address set forth in the notice provision of
this Agreement. In the event that no meter or sub-meter is permitted by the local utility, Lessee
shall pay the Lessor thirty (30) days after receipt of an invoice from Lessor that sets forth the
Lessee’s apportioned use of utilities at the Property, which shall be apportioned in the sole
discretion of the Lessor. Lessee shall be permitted at any time during the Term to install,
maintain, and/or provide access to and use of, as necessary (during any power interruption at the
Property), a temporary power source, and all related equipment and appurtenances within Land
Space, or elsewhere on the Property in such locations as reasonably approved by Lessor and the
Borough Engineer. As provided in this Agreement, shall have the right to install conduits
connecting the temporary power source and related appurtenances to the Tower Space and Land
Space. The installation of all utilities, conduits, etc. shall require the approval of the Lessor and
the Borough Engineer.
3.04. Taxes. Lessee shall have the responsibility to pay any personal property, real
estate taxes, assessments, and charges owed on the Property which Lessor demonstrates is the
result of this Agreement, including, but not limited to the Lessee’s use of the Property and/or the
installation, maintenance, and/or operation of the Lessee’s improvements, Equipment and
Property, and Utility Equipment, and any sales tax imposed on the rent (except to the extent that
Lessee is or may become exempt from the payment of sales tax in the jurisdiction in which the
Property is located), including any increase in real estate taxes at the Property which Lessor
demonstrates arises from the Lessee’s improvements and/or Lessee’s use of the Property. Lessor
and Lessee shall each be responsible for the payment of their respective taxes, levies,
assessments, and other charges imposed including franchise and similar taxes imposed upon the
business conducted by Lessor or Lessee at the Property, if any. Notwithstanding the foregoing,
Lessee shall not have the obligation to pay any tax, assessment, or charge that Lessee is disputing
in good faith in appropriate proceedings prior to a final determination that such tax is properly
assessed provided that no lien attaches to the Property. Nothing in this Paragraph shall be
construed as making Lessee liable for any portion of Lessor’s income taxes in connection with
any Property or otherwise. Except as set forth in this Paragraph, Lessor shall have the
responsibility to pay any personal property, real estate taxes, assessments, or charges owed on
the Property and shall do so prior to the imposition of any lien on the Property.
3.04.1. Lessee shall have the right, at its sole option and at its sole cost and
expense, to appeal, challenge, or seek modification of any tax assessment or billing for which
Lessee is wholly or partly responsible for payment. Lessor shall reasonably cooperate with
Lessee at Lessee’s expense in filing, prosecuting, and perfecting any appeal or challenge to taxes
as set forth in the preceding sentence, including but not limited to, executing any consent, appeal
or other similar document. In the event that as a result of any appeal or challenge by Lessee,
there is a reduction, credit or repayment received by the Lessor for any taxes previously paid by
Lessee, Lessor agrees to promptly reimburse to Lessee the amount of said reduction, credit or
repayment.
3.05. License Fees. Lessee shall pay, as they become due and payable, all fees,
charges, taxes, and expenses required for licenses and/or permits required for or occasioned by
Lessee’s use of the Property.
4.
INDEMNIFICATION AND INSURANCE
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4.01. Indemnification. Lessee expressly, knowingly, and, to the fullest extent permitted
by law, agrees to and shall release, indemnify, defend, and hold harmless Lessor, its elected and
appointed officials, officers, employees, agents, volunteers, and others working on behalf of the
Lessor from and against any loss, damages, claims, causes of action, liabilities, obligations,
penalties, demands, municipal mechanic’s liens filed pursuant to N.J.S.A. 2A:44-125, et seq.,
and any and all other costs and expenses, including attorneys’ fees and costs, threatened against,
suffered, and/or incurred by Lessor, its elected and appointed officials, officers, employees,
agents, volunteers, and others working on behalf of the Lessor arising out of and/or in any
manner relating to the permitted, contracted, and/or licensed activity engaged in by Lessee, its
officers, owners, agents, employees, independent contractors, guests, volunteers, others working
on behalf of Lessee in and/or relating to this Agreement, and the acts and/or omissions of the
Lessee, its officers, owners, agents, employees, independent contractors, guests, others working
on behalf of Lessee. Lessee shall be responsible and liable for the payment of any and all of the
foregoing attorney’s fees and costs, to attorneys of Lessor’s selection, for any investigation and
review, pre-litigation, litigation, post-judgment litigation, bankruptcy proceedings, and any and
all appeals arising out of and/or relating to this Agreement. The existence of any available and/or
applicable insurance shall not waive or release Lessee from the Lessee’s obligations set forth in
this Agreement. The existence of any available and/or applicable insurance shall not waive or
release Lessee from the Lessee’s obligations set forth herein.
4.02. Lessee’s Insurance. Lessee, at its own cost and expense, shall maintain or cause to
be maintained in full force and effect and at its sole cost and expense the following types and limits
of insurance.
4.02.1. Commercial general liability insurance with limits of $5,000,000.00 per
occurrence for bodily injury (including death), $5,000,000.00 for property damage, $5,000,000.00
in products/completed operations, and $10,000,000.00 for any aggregate claim. Such limits may
be satisfied by a combination of primary and umbrella policies. Lessee may satisfy this
requirement by obtaining the appropriate endorsement to any master policy of liability insurance
Lessee may maintain.
4.02.2. Commercial Automobile liability insurance covering all owned, hired, and
non-owned vehicles in use by Lessee, its employees, and agents, in an amount of $2,000,000.00
combined single limit for reach accident for bodily injury and property damage such limit may be
satisfied by a combination of primary and umbrella policies. Lessee may satisfy this requirement
by obtaining the appropriate endorsement to any master policy of liability insurance Lessee may
maintain.
4.02.3. Workers’
compensation
insurance
meeting
applicable
statutory
requirements of the State of New Jersey and employer’s liability insurance with a limit of
$1,000,000 each accident/disease/policy limit.
4.02.4. At the start of and during the period of any construction, builders’ all-risk
insurance is required, together with an installation floater or equivalent property coverage covering
cables, materials, machinery, and supplies of any nature whatsoever that are to be used in or
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incidental to the installation of the Equipment and Property and Utility Equipment. Upon
completion of the installation of the Equipment and Property and Utility Equipment, Lessee shall
substitute for the for the foregoing insurance policies of fire, extended coverage and vandalism,
and malicious mischief insurance on the Equipment and Property and Utility Equipment. The
amount of insurance at all times shall be representative of the insurable values installed or
constructed.
4.03. Additional Insureds. All Lessee’s policies, except for business interruption,
property insurance, and workers’ compensation policies, shall include Lessor and all associated,
affiliated, allied, and affiliates and subsidiary entities of Lessor now existing or hereafter created,
as well as their respective officers, boards, commissions, employees, and elected officials as
additional insureds.
4.04. Deductibles. Lessee agrees to indemnify, defend, and hold Lessor harmless from
and against the payment of any deductible and from the payment of any premium on any policy
required to be furnished by the Lessee pursuant to this Agreement. Such indemnification shall be to
the same extent set forth in Paragraph 4.01.
4.05. Evidence of Insurance. Certificates of insurance for each insurance policy required to
be obtained by Lessee and a blanket endorsement for additional insureds shall be filed and
maintained with the Lessor’s provided annually during the term of this Agreement.
4.06. Contractors. Lessee shall require that each and every one its contractors and
subcontractors who perform work on the Property carry, obtain, and maintain substantially the
same coverage as required of Lessee and including the Lessor entities listed above as additional
insureds on the commercial general liability and automobile insurance policies.
4.07. Increase of Insurance Limits. Notwithstanding the foregoing, upon prior notice to,
review, and acceptance by Lessee, the Lessor may require that all policy limits set forth above be
increased for each and every five-year lease option and/or extension period and which increase
shall be calculated upon and applied to the coverage amounts in effect for the prior five-year
period.
4.08. Cancellation of Insurance. Upon receipt of notice from its insurer(s), Lessee shall
provide Lessor with thirty (30) days’ prior written notice of cancellation of any required coverage.
4.09. Insurance Companies. All insurance shall be effected under valid and enforceable
policies, insured by insurers licensed, authorized, or permitted to do business by the State of New
Jersey or surplus line carriers on the State of New Jersey Insurance Commissioner’s approved list
of companies qualified to do business in the State of New Jersey. All insurance carriers and surplus
line carriers shall be rated A- or better by A.M. Best Company.
4.10. Waiver of Negligence. The Parties hereby waive and release any and all rights of
action for negligence against the other which may hereafter arise on account of damage to the
Property or the Property resulting from any fire or other casualty which is insurable under “Causes
of Loss – Special Form” property damage insurance or for the kind covered by standard fire
11
insurance policies with extended coverage, regardless of whether or not, or in what amounts, such
insurance is now or hereafter carried by the Parties, even if any such fire or other casualty shall
have been caused by the fault or negligence of the other Party. These waivers and releases shall
apply between the Parties and they shall also apply to any claims under or through either Party as a
result of any asserted right of subrogation. All such policies of insurance obtained by either Party
concerning the Property shall waive the insurer’s right of subrogation against the other Party.
4.11. Limitation of Liability. Except for indemnification pursuant to this Agreement,
neither Party shall be liable to the other, or any of their respective agents, representatives, or
employees for any lost revenue, lost profits, loss of technology, rights or services, incidental,
punitive, indirect, special or consequential damages, loss of data, or interruption or loss of use of
service, even if advised of the possibility of such damages, whether under theory of contract, tort
(including negligence), strict liability or otherwise.
4.12. Subrogation. Each insurance policy carried by or on behalf of the Lessor insuring
against loss by fire and causes covered by standard extended coverage, and each insurance policy
carried by Lessee insuring Lessee’s Equipment and Property and Utility Equipment against loss
by fire and causes covered by standard extended coverage, shall be written in a manner so as to
provide that the insurance company waives all right of recovery by way of subrogation against
Lessor or Lessee in connection with any loss or damages covered by such policies. Neither
Lessor nor Lessee shall be liable for any loss or damage caused by fire, water, or any of the risks
enumerated in standard extended coverage insurance, except that Lessee shall nevertheless be
bound by and liable for the indemnification provisions set forth in Paragraph 4.01.
5.
TOWER COMPLIANCE AND ENVIRONMENTAL
5.01. Compliance. Lessor covenants that it will keep the Tower in good repair as
required by this Agreement. The Lessor shall also comply with all rules and regulations
enforced by the Federal Communications Commission with regard to the lighting, marking, and
painting of towers.
5.02. Materials. Lessee shall not use materials in the installation of the antennas or
transmission lines that will cause corrosion or rust or deterioration of the Tower or its
appurtenances.
5.03. Antenna and Transmission Line Markings. All antennas on the Tower must be
identified by a marking fastened securely to its bracket on the Tower and all transmission lines are
to be tagged at the conduit opening where it enters any user’s equipment space.
5.04.
Lessor Tower Maintenance and Painting. The Lessee acknowledges that the
primary function of the water tank it to provide water storage for the Lessor and the public and that
the Property itself is used for public purposes. Accordingly, upon the request of the Lessor, Lessee
shall relocate its equipment on a temporary basis to another location on the Property, hereinafter
referred to as the “Temporary Relocation,” for the purpose of Lessor performing maintenance,
repair, painting, or similar work at the Property or on the Tower. As a result of any such request,
Lessee shall pay any and all costs related to the removal, relocation, reinstallation, and re-
attachment of any and all equipment. Lessor shall have no financial responsibility, liability, and/or
12
obligation to Lessee for any such costs, fees, and/or damages relating to and/or arising out of the
Lessor’s request(s). In the event that no temporary relocation site is similar to Lessee’s existing
location in size and/or is not fully compatible for Lessee’s use, then Lessee’s sole remedy is that the
rental payments shall abate for the period of time of the Temporary Relocation. Provided that the
maintenance and/or repairs required do not constitute an emergency, in Lessor’s discretion, Lessor
shall provide Lessee at least one-hundred and eighty (180) days written notice prior to requiring
Lessee to relocate. Upon the completion of any maintenance, repair or similar work by Lessor,
Lessee is permitted to return to its original location from the temporary location with all costs for
the same being paid by Lessee.
5.04.1. In the event that the maintenance and/or painting permits same, in the
discretion of the Lessor, the Lessor may also permit the Lessee to cover the Equipment and Property
to protect same in the event that the Lessee requests to cover the Equipment and Property instead of
moving same. The cost of covering the Equipment and Property shall be borne by the Lessee.
5.04.2. Should Lessor determine it must perform routine maintenance or repair to
the Equipment and Property in the Tower Space or Land Space, the Lessor shall give the Lessee
at least one-hundred and eighty (180) days written notice of such work, such that Lessee has
sufficient time within which to remove the Equipment and Property that the Lessor requires to be
removed. In the event that the Lessee fails to remove the Equipment and Property within the time
required, the Lessor may elect to move and store the Equipment and Property, the Lessee shall be
responsible for the payment of all costs and expenses, including, but not limited to, contractors
fees, overtime, professional fees, storage fees, and any other related costs relating to such
removal, and the Lessee releases the Lessor, its officers and elected officials, employees, agents,
and contractors from any claims for damage to the Equipment and Property or any other damage
or claim arising therefore, and Lessee forever waives any and all claims it may have against the
Lessor, its officers, employees, agents, and contractors relating to such removal, storage, and
reinstallation of same.
5.05. Environmental and Safety. Lessor and Lessee shall comply with all federal, state,
and local laws in connection with any substance brought onto the Property that are identified by
any law, ordinance, or regulation as hazardous, toxic, or dangerous (collectively “Hazardous
Substances”). Lessee shall conduct its business in compliance with all applicable laws governing
the protection of the environment or employee health and safety (“EH&S Laws”). Lessee shall
be responsible for all losses and/or damage caused by any Hazardous Substances that it may
bring onto the Property and shall indemnify, defend, and hold harmless the Lessor from claims to
the extent resulting from any such Hazardous Substances and/or Lessee’s violation of any
applicable EH&S Laws to the extent required in Paragraph 4.01. Lessor shall indemnify and
hold harmless Lessee from all claims resulting from the violation of any applicable EH&S Laws
or a release of any regulated substance to the environment except to the extent resulting from the
activities of Lessee. The Parties recognize that Lessee is only leasing a small portion of the
Property and that Lessee shall not be responsible for any environmental condition or issue except
to the extent resulting from Lessee’s specific activities and responsibilities. In the event that
Lessee encounters any Hazardous Substances that do not result from its activities, Lessee may
relocate its Equipment and Property to avoid such hazardous substances to a mutually agreeable
location, or, if Lessee desires to remove at its own cost all or some the Hazardous Substances or
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materials (such as soil) containing those Hazardous Substances, Lessor agrees to sign any
necessary waste manifest associated with the removal, transportation and/or disposal of such
substances. In the event that the Hazardous Substance is not the result of Lessee and there is no
other potential location for the Equipment and Property and/or Lessee elects not to remove the
hazardous substance and Lessor does not agree to remediate and remove same, the Lessee may
terminate this Agreement on thirty (30) days’ notice. In the event that the Hazardous Substance
is the result of Lessee, this Agreement shall remain in effect regardless of whether there are any
other locations for the Equipment and Property and as set forth herein, Lessee shall be
responsible for the payment of any and all costs relating to the Hazardous Substances.
5.06. Emergency Maintenance. Lessor shall have the unfettered right and access to the
Tower Space and Land Space to engage in and conduct inspections and any emergency
maintenance and repairs to the Tower. Should Lessor determine in its discretion that it must
undertake emergency maintenance or repair, as defined by Lessor, of the water tank and Tank
Space, Lessor shall give as much notice as reasonably possible of the emergency work, except
that Lessor may engage in any emergency inspections, maintenance, and repairs as it deems
necessary and proper in its discretion without prior notice to the Lessee. Lessor shall, however,
provide notice to the Lessee within a reasonable amount of time thereafter. The provisions of
Paragraph 5.04.2 shall apply to the liabilities of the Parties relating to and/or arising out of the
removal, storage, and replacement of the Equipment and Property under emergency circumstances.
6.
END OF AGREEMENT
6.01.
Removal at End of Term. At its sole cost and expense, Lessee shall, upon
expiration of this Agreement, or within sixty (60) days after any termination of the Agreement,
remove any and all Equipment and Property and remove any Utility Equipment requested to be
removed by Lessor and restore the Property to its original condition, reasonable wear and tear
and casualty damage excepted. Lessor agrees and acknowledges that all of the Equipment and
Property of Lessee shall remain the personal property of Lessee and Lessee shall have the right
to remove the same at any time during the Term, whether or not said items are considered
fixtures and attachments to real property under applicable Laws. If such time for removal causes
Lessee to remain on the Property after termination of this Agreement, Lessee shall pay rent at the
then existing monthly rate or on the existing monthly pro-rata basis if based upon a longer
payment term, plus one-hundred percent (100.00%) per annum (for a total of 200.00% of the
then existing rent) until such time as the removal of the Equipment and Property and remove any
Utility Equipment requested to be removed by Lessor are completed, except that if the Lessee
remains on the Property without the written authorization of the Lessor for a period of more than
sixty (60) days, Lessor shall be entitled to any and all attorney’s fees and costs for any
investigation and review, pre-litigation, litigation, post-judgment litigation, and any and all
appeals arising out of and/or relating to any legal action commenced by Lessor to compel the
removal, in addition to the aforesaid monthly rate and interest rate. Such removal shall be
performed in a workmanlike and careful manner and without interference or damage to any other
equipment, structures, or operations on the Property, including the use of the Property by Lessor
or any of Lessor’s assignees or lessees. If, however, Lessee requests permission not to remove
all or a portion of the improvements and Lessor consents to such non-removal, title to the
affected improvements shall thereupon transfer to Lessor free and clear of all liens and
encumbrances and the same thereafter shall be the sole and entire property of Lessor, and Lessee
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shall be relieved of its duty to otherwise remove same.
7.
DEFAULT; TERMINATION; REMEDIES
7.01. Notice of Default. In the event there is a breach with respect to any of the
provisions of this Agreement or its obligations under it, the non-breaching Party shall provide
written notice of such breach. After receipt of such written notice, the breaching Party shall have
fifteen (15) days in which to cure any monetary breach and thirty (30) days in which to cure any
non-monetary breach, provided the Party shall have such extended period as may be required
beyond the thirty (30) days if the nature of the cure is such that the Lessor agrees it reasonably
requires more than thirty (30) days and the Party commences the cure within the thirty (30) day
period and thereafter continuously and diligently pursues the cure to completion. A Party may
not maintain any action or effect any remedies for default against the other Party unless and until
the breaching Party has failed to cure the breach within the time periods provided in this
Paragraph.
7.02. Remedies. In the event of Lessee’s default other than default in the payments
required by this Agreement, the Lessor may at its option (but without obligation to do so),
perform the defaulting Lessee’s duty or obligation on the defaulting Lessee’s behalf, including
but not limited to the obtaining of reasonably required insurance policies. The costs and
expenses of any such performance by the Lessor shall be due and payable by the defaulting
Lessee upon invoice therefor. In the event of a default by either Party with respect to a material
provision of this Agreement, without limiting the non-defaulting Party in the exercise of any
right or remedy which the non-defaulting Party may have by reason of such default, the non-
defaulting Party may terminate the Agreement and/or pursue any remedy now or hereafter
available to the non-defaulting Party under the Laws or judicial decisions of the state in which
the Premises are located. Lessee shall bear its own attorney’s fees and costs arising out of any
such dispute and/or litigation arising out and/or relating to the terms of this Agreement. In the
event that the Lessor is the prevailing Party on any claim or defense, Lessee shall be responsible
and liable for the payment of any and all of Lessor’s attorney’s fees and costs for any
investigation and review, pre-litigation, litigation, post-judgment litigation, and any and all
appeals arising out of and/or relating to this Agreement.
7.02.1. In the event of Lessee’s default, the Lessee shall remain liable for the
payment of all amounts required through the existing term of this Agreement set forth in
Paragraph 3. If the foregoing default occurs within the six (6) month period set forth in
Paragraph 3.01.2, the Lessee shall remain liable for all sums due to the Lessor pursuant to the
subsequent term of this Agreement. If, in the sole discretion of the Lessor, the Lessor elects to
advertise and attempt to secure a new tenant for the Property, the continued liability for payments
shall cease at the time the Lessor receives the first payment from the new tenant after Lessor
secures a new tenant pursuant to the Local Public Contracts Law.
7.02.2. In the event of Lessee’s default, Lessor shall have the right, at its option,
in addition to and not exclusive of any other remedy Lessor may have by operating of law,
pursuant to this Agreement, and in equity, and without any further demand or notice, to re-enter
the Property and eject all persons therefrom, and either (i) declare this Agreement at an end, in
which event the Lessee shall immediately remove the Equipment and Property and Utility
15
Equipment pursuant to the terms of this Agreement and pay the Lessor the rental payments and
payments due pursuant to this Lease in accordance with Paragraph 7.02.1, and, if litigation shall
ensue, any other amount necessary to compensate Lessor for all detriment proximately caused by
Lessee’s failure to perform its obligations pursuant to this Agreement.
7.03. Termination. Lessee’s right to termination of this Agreement is set forth in
Paragraph 3.01.2, which provides that the Lessee may elect to terminate this Agreement a
minimum of six (6) months prior to the end of the existing term. Lessee may also terminate this
Agreement upon six (6) months written notice if: (i) changes in local or State laws and
regulations prevent the Lessee from operating the communications facility; or (ii) FCC rulings or
regulations beyond the Lessee’s control that renders the Tower Space unusable. Lessee shall
have no other right to terminate this Agreement unless Lessor materially breaches the terms of
this Agreement and fails to cure the breach pursuant to the cure provisions of this Agreement. In
addition to the right to terminate set forth in Paragraph 3.01.2 and notwithstanding any other
term of this Agreement, in the event that the Lessor receives an order from the FCC or an
appropriate agency with jurisdiction over this Agreement, that the Lessee’s Equipment poses a
health or safety danger and Lessee failed to correct such failure Lessor may terminate this
Agreement with sixty days’ notice.
7.04. Tower Deficiency. In the event it is determined that a structural deficiency not
caused by or the result of the negligence of Lessee exists with respect to the Tower necessitating
the dismantling and removal of the Tower, or, in the event any governmental rule, regulation,
order, or decree applicable to the Tower is issued or adopted by any entity having jurisdiction
over the Tower that would require for correction of same or compliance therewith extensive
repair to the Tower or that necessitates the demolition of the Tower, then Lessor may, in its
discretion, afford the Lessee the option of constructing a monopole for its antenna on the
Property. In the event that the Lessor elects not to permit Lessee the option of constructing a
monopole and related and necessary equipment, this Agreement shall terminate upon notice by
the Lessor that the Tower is structurally deficient and required to be remove or dismantled and
the parties shall have no further obligation upon the Lessee’s compliance with the requirements
of this Agreement at its termination, including, but not limited to, the removal the Equipment and
Property and Utility Equipment in accordance with the terms of this Agreement and the Lessee’s
indemnification requirements set forth in Paragraph 4.01.
8.
MISCELLANEOUS
8.01.
Rights Upon Sale. Should Lessor, at any time during this Agreement decide (i)
to sell or transfer all or any part of the Property or the Tower thereon to a purchaser other than
Lessee, or (ii) to grant to a third-party by easement or other legal instrument an interest in and to
that portion of the Tower and or Property occupied by Lessee, or a larger portion thereof, for the
purpose of operating and maintaining communications facilities or the management thereof, such
sale or grant of an easement or interest therein shall be under and subject to this Agreement and
any such purchaser or transferee shall recognize Lessee’s rights hereunder under the terms of this
Agreement. To the extent that Lessor grants to a third-party by easement or other legal
instrument an interest in and to that portion of the Tower and/or Property occupied by Lessee for
the purpose of operating and maintaining communications facilities or the management thereof
and in conjunction therewith, Lessor shall not be released from its obligations to Lessee under
16
this Agreement, and Lessee shall have the right to look to Lessor and the third-party for the full
performance of this Agreement.
8.02.
Lessor’s Consent. When Lessor’s consent is required, Lessor’s consent shall not
be unreasonably or arbitrarily withheld, conditioned, or delayed.
8.03.
Mechanic’s Lien Prohibited. Lessee shall not suffer any mechanic’s notice of
intention or lien claim to be filed against the Property by reason of work, labor, services, or
materials performed for or furnished to Lessee or to anyone holding the Property, or any part
thereof, through or under Lessee. If Lessee shall fail to remove or discharge any mechanic’s
notice of intention or lien claim as described above within ninety (90) days after notice or
knowledge of the filing of same, then in addition to all other rights of Lessor hereunder, or by
law upon a default by Lessee, Lessor may, at its option, procure the removal or discharge of
same. Lessee shall pay to Lessor all amounts paid by Lessor relating to and/or arising out of the
mechanic’s lien, including all attorney’s fees and costs for any investigation and review, pre-
litigation, litigation, post-judgment litigation, and any and all appeals arising out of and/or
relating to the mechanic’s lien.
8.04.
Lessee’s Bankruptcy. If the Lessee shall file a petition of bankruptcy, or be
adjudicated a bankrupt, or make an assignment for the benefit of creditors to take advantage of
any insolvency act, then, in that event, this Agreement may be terminated by Lessor upon thirty
(30) days written notice to Lessee without any penalty or further liability to Lessor provided that
none of the foregoing shall constitute an event of default, if, at the time of the occurrence, Lessee
is current with its payments, continues to make payments on time, and is not otherwise in default
under the terms of this Agreement.
8.05.
Quiet Enjoyment. Lessor covenants that Lessee, on paying the rent and
performing of the covenants set forth in this Agreement, shall peaceably and quietly have, hold,
and enjoy the rights granted to the Lessor pursuant to this Agreement, except that the Lessee’s
rights shall be subordinate to the Lessor’s rights to quiet enjoyment and use of the Property,
provided that such does not interfere with the Tower Space except as otherwise provided in this
Agreement.
8.06.
Title. Lessor represents and warrants to Lessee as of the execution date of this
Agreement, and covenants during the Term that Lessor is seized of good and sufficient title and
interest to the Property and has full authority to enter into and execute this Agreement. Lessor
further covenants during this Agreement that there are no liens, judgments, or impediments of
title on the Property, or affecting Lessor’s title to the same and that there are no covenants,
easements or restrictions which prevent or adversely affect the use or occupancy of the Premises
by Lessee as set forth above.
8.07.
Integration. This Agreement, together with the Lessor’s bid specifications,
comprise the entire agreement and understanding between the Parties and it is acknowledged that
there is and supersedes all previous understandings and agreements between the Parties, whether
oral or written. In the case of conflict with the bid specifications, this Agreement shall supersede
the specifications. The Parties hereby acknowledge and agree that they have not relied on any
17
representation, assertion, guarantee, warranty, collateral contract or other assurance, except those
set out in this Agreement. The Parties hereby waive all rights and remedies, at law or in equity,
arising or which may arise as the result of a Party’s reliance on such representation, assertion,
guarantee, warranty, collateral contract or other assurance.
8.08. Assignment. This Agreement may be sold, assigned, or transferred by the Lessee
without the approval and consent of the Lessor to the Lessee’s principal, affiliates, subsidiaries
of its principal, or to any entity which acquires all or substantially all of Lessee’s assets in the
market defined by the Federal Communications Commission in which the Property is located by
reason of a merger, acquisition, or other business reorganization. As to other Parties, this
Agreement may not be sold, assigned, or transferred without the written consent of the Lessor,
which such consent will not be unreasonably withheld, delayed, or conditioned. No change of
stock ownership, partnership interest or control of Lessee or transfer upon partnership or
corporate dissolution of Lessee shall constitute an assignment hereunder.
8.09. Notices. All notices hereunder must be in writing and shall be deemed validly
given if sent by certified mail, return receipt requested, or by commercial courier, provided the
courier's regular business is delivery service and provided further that it guarantees delivery to
the addressee by the end of the next business day following the courier's receipt from the sender,
addressed as follows (or any other address that the Party to be notified may have designated to
the sender by like notice):
LESSOR:
Municipal Clerk
Borough of Ship Bottom
1621 Long Beach Boulevard
Ship Bottom, New Jersey 08008
LESSEE:
_________________________
_________________________
_________________________
_________________________
Notice shall be effective upon actual receipt or refusal as shown on the receipt obtained
pursuant to the foregoing.
8.10. Subordination and Non-Disturbance. Lessor shall obtain not later than fifteen
(15) days following the execution of this Agreement, a Non-Disturbance Agreement, as defined
below, from its existing mortgagee(s), ground Lessors, and master Lessors, if any, of the
Property. At Lessor’s option, this Agreement shall be subordinate to any future master lease,
ground lease, mortgage, deed of trust, or other security interest (“Mortgage”) by Lessor which
from time to time may encumber all or part of the Property, Tower, or right-of-way; provided,
however, as a condition precedent to Lessee being required to subordinate its interest in this
Agreement to any future Mortgage covering the Tower or Property, Lessor shall obtain for
Lessee’s benefit a non-disturbance and attornment agreement for Lessee’s benefit in the form
reasonably satisfactory to Lessee, and containing the terms described below (“Non-Disturbance
Agreement”), and shall recognize Lessee’s right to remain in occupancy of and have access to
the Premises as long as Lessee is not in default of this Agreement beyond applicable notice and
18
cure periods. The Non-Disturbance Agreement shall include the encumbering Party’s
(“Lender’s”) agreement that, if Lender or its successor-in-interest or any purchaser of Lender’s
or its successor’s interest (“Purchaser”) acquires an ownership interest in the Tower or Property,
Lender or such successor-in-interest or Purchaser will (1) honor all of the terms of the
Agreement, (2) fulfill Lessor’s obligations under the Agreement, and (3) promptly cure all of the
then-existing Lessor defaults under the Agreement. Such Non-Disturbance Agreement must be
binding on all of Lender’s participants in the subject loan (if any) and on all successors and
assigns of Lender and/or its participants and on all Purchasers. In return for such
Non-Disturbance Agreement, Lessee will execute an agreement for Lender’s benefit in which
Lessee (1) confirms that the Agreement is subordinate to the Mortgage or other real property
interest in favor of Lender, (2) agrees to attorn to Lender if Lender becomes the owner of the
Tower or Property and (3) agrees accept a cure by Lender of any of Lessor’s defaults, provided
such cure is completed within the deadline applicable to Lessor. In the event Lessor defaults in
the payment and/or other performance of any mortgage or other real property interest
encumbering the Property, Lessee, may, at its sole option and without obligation, cure or correct
Lessor’s default and upon doing so, Lessee shall be subrogated to any and all rights, titles, liens
and equities of the holders of such mortgage or other real property interest and Lessee shall be
entitled to deduct and setoff against all rents that may otherwise become due under this
Agreement the sums paid by Lessee to cure or correct such defaults.
8.11. Recording. Lessor agrees to execute a Memorandum of this Agreement which
Lessee may record with the appropriate recording officer. The date set forth in the Memorandum
of Lease is for recording purposes only and bears no reference to commencement of either the
Term or rent payments.
8.12. Estoppel. Either Party shall, from time to time, on not less than sixty (60) days
prior written request by the other, execute, acknowledge, and deliver a written statement
certifying that this Agreement is unmodified and in full force and effect, or that this Agreement
is in full force and effect as modified and listing the instruments of modification, the dates to
which rental payments have been paid, and whether to the best knowledge of the Party delivering
the estoppel the other Party is in default hereunder, and, if so, specifying the nature of the
default. No such statement shall be provided that is not accurate.
8.13. Casualty. In the event of damage by fire or other casualty to the Tower or
Premises that cannot reasonably be expected to be repaired within forty-five (45) days following
same, or, if the Property is damaged by fire or other casualty so that such damage may
reasonably be expected to disrupt Lessee’s operations at the Premises for more than forty-five
(45) days, then Lessee may, at any time following such fire or other casualty, provided Lessor
has not completed the restoration required to permit Lessee to resume its operation at the
Premises, suspend this Agreement upon fifteen (15) days prior written notice to Lessor for a
period of five (5) months, and, provided the casualty shall be repaired within those five (5)
months, this Agreement shall resume at the time the casualty is repaired. In the event that the
casualty is not repaired within five (5) months of the aforesaid notice, Lessee may terminate this
Agreement. Any such notice of termination shall cause this Agreement to be suspended with the
same force and effect as though the date set forth in such notice were the date originally set as
the expiration date of this Agreement and the Parties shall make an appropriate adjustment, as of
19
such termination date, with respect to payments due to the other under this Agreement.
Notwithstanding the foregoing, the rent shall abate during the period of repair following such fire
or other casualty in proportion to the degree to which Lessee’s use of the Premises is impaired.
8.14. Assumption of Risk. Lessee undertakes and assumes for its officers, agents,
affiliates, contractors, subcontractors, and employees (collectively “Lessee” for purposes of this
Paragraph), all risk of known dangerous conditions, if any, on or about the Property and Lessee
hereby agrees to indemnify, defend, and hold harmless the Lessor, its elected and appointed
officials, officers, employees, agents, volunteers, and others working on behalf of Lessor in
accordance with Paragraph 4.
8.15. Condemnation. In the event of any condemnation of all or any portion of the
Property, this Agreement shall terminate as to the part so taken as of the date the condemning
authority takes title or possession, whichever occurs first. If as a result of a partial condemnation
of the Premises or Tower, Lessee, in Lessee’s sole discretion, is unable to use the Premises for
the purposes intended hereunder, or if such condemnation may reasonably be expected to disrupt
Lessee’s operations at the Premises for more than forty-five (45) days, Lessee may, at Lessee’s
option, to be exercised in writing within fifteen (15) days after Lessor shall have given Lessee
written notice of such taking (or in the absence of such notice, within fifteen (15) days after the
condemning authority shall have taken possession) terminate this Agreement as of the date the
condemning authority takes such possession. Any such notice of termination shall cause this
Agreement to expire with the same force and effect as though the date set forth in such notice
were the date originally set as the expiration date of this Agreement and the Parties shall make an
appropriate adjustment as of such termination date with respect to payments due to the other
under this Agreement. If Lessee does not terminate this Agreement in accordance with the
foregoing, this Agreement shall remain in full force and effect as to the portion of the Premises
remaining, except that the rent shall be reduced in the same proportion as the rentable area of the
Premises taken bears to the total rentable area of the Premises. In the event that this Agreement
is not terminated by reason of such condemnation, Lessor shall promptly repair any damage to
the Premises caused by such condemning authority.
8.16. Amendment by Operation of Law. Any provision of this Agreement which is
affected by any changes in federal or state law or administrative regulations will necessarily and
accordingly be modified automatically and such changes shall be deemed incorporated herein by
reference as if set forth fully herein, without any action by the Parties required, so as to render
this Agreement consistent with such changes in federal or state law or administrative regulations.
8.17. Severability. If any term of this Agreement or the application thereof to any
extent be held invalid or unenforceable, the remainder of this Agreement, or the application of
such term to the Parties or circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected thereby, and each term of this Agreement shall be valid and
enforceable to the fullest extent permitted by law.
8.18. Governing Law. The Parties acknowledge that this Agreement was prepared
under the laws of the State of New Jersey, and, therefore, that this Agreement shall be interpreted
under the laws of the State of New Jersey.
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8.19. Venue. Any dispute arising out of and/or relating to this Agreement shall be
venued in the Superior Court of New Jersey, Ocean County.
8.20. Binding Effect. This Agreement shall extend to and bind the heirs, personal
representative, successors, and assigns of the Parties hereto.
8.21. Amendments. This Agreement may not be amended, altered, or modified in any
manner except in writing signed by the Parties.
8.22. Waivers. Any failure or delay in the enforcement of any of the provisions of this
Agreement by either of the Parties shall not be construed as a waiver of those provisions.
8.23. Election of Remedies. Neither the exercise of nor the failure to exercise a right or
to give notice of a claim under this Agreement shall constitute an election of remedies or limit
any Party in any manner in the enforcement of any other remedies that may be available to such
Party, whether at law or in equity.
8.24. Force Majeure. Neither Party is liable for any default or delay in the performance
of any of its obligations under this Agreement (other than failure to make payments when due) if
such default or delay is caused, directly or indirectly, by forces beyond such Party’s reasonable
control, including, without limitation, fire, flood, acts of God, labor disputes, pandemic,
accidents, acts of war or terrorism, interruptions of transportation or communications, supply
shortages or the failure of any third Party to perform any commitment relative to the production
or delivery of any equipment or material required for such Party to perform its obligations
hereunder.
8.25. Authorization. The Parties represents and warrants that he/she/it has the authority
to enter into and be bound by the terms of this Agreement.
8.26. Survival. The provisions of the Agreement relating to indemnification shall
survive any termination or expiration of this Agreement. Additionally, any provisions of this
Agreement which require performance subsequent to the termination or expiration of this
Agreement shall also survive such termination or expiration.
8.27. Headings. The headings preceding the text of sections of this Lease are for
convenience only and shall not be deemed part of this Lease.
IN WITNESS WHEREOF, the Parties hereto have set their hands and affixed their
respective seals the day and year first above written.
LESSOR:
____________________________________
By:
WITNESS
Name: _____________________________
Its:_______________________________
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Date: _______________________________
LESSEE:
____________________________________
By:
Name: ______________________________
WITNESS
Its:
______________________________
Date:
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EXHIBIT A
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EXHIBIT B
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EXHBIIT C
[TO BE AGREED UPON FOLLOWING AWARD AND EXECUTION]
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"...If such time for removal causes Lessee to remain on the Property after termination of this Agreement, Lessee shall pay rent at the then existing monthly rate or on the existing monthly pro-rata basis if based upon a longer payment term, plus one-hundred percent (100.00%) per annum (for a total of 200.00% of the then existing rent) until such time as the removal of the Equipment and Property and remove any Utility Equipment requested to be removed by Lessor are completed......"
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Municipal Clerk
Borough of Ship Bottom
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Timeline
First Discovered
Apr 28, 2026
Last Info Update
Apr 30, 2026
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