LEASE AGREEMENT (Draft of 12 Mar 2013)

Transcription

1 LEASE AGREEMENT (Draft of 12 Mar 2013) THIS AGREEMENT, made this day of, 2013, by and between CENTRE REGION PARKS AND RECREATION AUTHORITY ( CRPRA ), having its principal office at 2643 Gateway Drive #1, State College, PA 16801, and CENTRE REGION COUNCIL OF GOVERNMENTS ( COG ), having its principal office at 2643 Gateway Drive #1, State College, PA 16801, (together, Lessor ); COLLEGE TOWNSHIP, a Township of the Second Class, having its principal office at 1481 E. College Avenue, State College, PA (the Township ); - AND - COLLEGE TOWNSHIP WATER AUTHORITY ( CTWA ), a municipal authority duly organized under the Municipal Authorities Act of 1945, as amended, having its principal office at 1481 East College Avenue, State College, PA BACKGROUND A. CRPRA and COG are jointly developing a regional park on a 68-acre tract of land located on Linden Hall Road, College Township, Centre County, Pennsylvania (the Park Property ), as such land and development specifications are more particularly shown on the Master Plan attached hereto as Exhibit A (the Park ). B. Title to the Park Property is held by COG while the Park itself will be operated by CRPRA. C. CTWA owns and operates a public water system serving College Township, Centre County, Pennsylvania. D. By Right of Entry Agreement dated December, 2011, as amended and/or extended from time to time, CRPRA and COG granted permission unto CTWA to enter upon the Park Property to drill and sample test water wells in order to identify a potential water source for the CTWA public water system. E. As a result of the investigation conducted by CTWA pursuant to the terms of the Right of Entry Agreement, CTWA has identified (i) a site to locate a water well for the limited purpose of serving the water needs of the Park, (ii) a separate site to locate a future distribution well to serve the CTWA public water system and (iii) a separate site to locate a monitoring well. The well sites are located at #19, #20 and #23 as set forth on the Oak Hall Regional Park Phase I Utility Plan attached hereto as Exhibit B. F. The parties hereto desire that, upon the terms and conditions set forth herein, Lessor grant to CTWA a Lease and the parties agree as to the rights and obligations of each party to install, use, operate, own and maintain on the Park Property the following assets: (i) a water

2 supply well, known as Oak Park Well #19 ( OH-19 ), as a Transient Noncommunity Water System well pursuant to the Pennsylvania Department of Environmental Protection ( DEP ) regulations; (ii) a future public water distribution well, to be known as Oak Park Well #20 ( OH- 20 ), as a Community Water System well pursuant to DEP regulations; (iii) a monitoring well site, known as Monitoring Well #23 ( OH-23 ); and (iv) the necessary electrical service, water mains, service connections and appurtenances to support OH-19, OH-20 and OH-23, as such electrical and water distribution system is depicted on Exhibit B, including that section labeled Park Water System Facility as depicted in blue, that section labeled CTWA Water System Facility as depicted in red, and that section labeled CTWA Future System Facilities as depicted in green (all such facilities are referred to collectively as the Water System ). G. The Township has agreed to apply for and hold in the name of the Township the permits necessary for OH-19. H. CTWA desires to lease and Lessor desires to grant to CTWA a ninety-nine (99) year Lease of the Leased Premises, as defined below, for the rent and on the terms and conditions set forth in this Lease Agreement. NOW, THEREFORE, intending to be legally bound, and in consideration of the foregoing and the mutual covenants contained in this Lease Agreement, the parties agree as follows: 1. Leased Premises. Subject to the terms and conditions of this Lease, Lessor hereby leases to CTWA the following portion of the Park Property: (i) the land within a thirty (30) foot radius of OH-19; (ii) the land within a thirty (30) foot radius of OH-20; (iii) the land within a thirty (30) foot radius of OH-23; (iv) the land within a seventy-five (75) foot radius of the Pumphouse; and (v) the land consisting of ten (10) feet on either side of the location of those sections of the Water System depicted in red and green on Exhibit B (all land referred to collectively as the Leased Premises ). Provided, however, Lessor shall be able to use the Leased Premises, with the exception of the well heads and Pumphouse itself, for Park purposes provided such use does not interfere with CTWA s operation of the Water System. Further, Lessor hereby grants to CTWA a nonexclusive easement for ingress, egress and access over the balance of the Park Property as necessary to provide CTWA access to the Leased Premises in order to install, use, operate and maintain the Water System, subject to the limitations set forth in paragraph 6(a) below. 2. Installation/Ownership of Water System. a. OH-19 System (i) CTWA shall, at CTWA s cost and expense, install OH-19, the Pumphouse, a well station for the operation of OH-19 to be housed in the Pumphouse, OH-23 and the water mains, service connections and appurtenances making up that portion of the Water System depicted in red on Exhibit B (collectively, the OH-19 System ) on the Leased Premises on or before 2

3 September 30, 2013, subject to approval and receipt by the Township of all permits necessary to comply with any regulatory requirements of a Transient Noncommunity Water Supply well which approvals the Township and CTWA shall diligently pursue upon execution of this Lease. The installation of all such facilities shall be done according to plans approved by Lessor and no facilities shall be subsequently relocated without Lessor s approval which approval shall not be unreasonably withheld or delayed. Lessor shall cooperate with the Township and CTWA to prepare, process and follow to conclusion any requirement to obtain, at CTWA s cost and expense, all necessary permits, repermitting, testing, or any action required of the Township or CTWA to maintain compliance with any regulatory requirements in connection with the installation and operation of the OH-19 System. Upon installation, CTWA shall use, operate and maintain the OH-19 System throughout the Term of this Lease in accordance with the terms and conditions hereof. The OH-19 System shall be owned by and remain the exclusive asset of CTWA during the Term of this Lease. (ii) Lessor shall, at Lessor s cost and expense, install the water mains, service connections and appurtenances making up that portion of the Water System depicted in blue on Exhibit B on or before September 30, The water mains, service connections and appurtenances making up that portion of the Water System depicted in blue on Exhibit B shall be owned by and remain the exclusive assets of Lessor. (iii) Lessor shall, at Lessor s cost and expense, establish the interconnection between the OH-19 System and the balance of the Water System. CTWA shall provide such access to the OH-19 System and cooperate as needed to facilitate such interconnection. b. OH-20 System. (i) CTWA shall have the right to install OH-20 and the water mains, service connections and appurtenances making up that portion of the Water System necessary only to operate OH-20, as such portion is depicted in green on Exhibit B (together, the OH-20 System ) at any time during the Term of this Lease at CTWA s cost and expense. CTWA s installation of all such facilities shall be done according to plans approved by Lessor and no facilities shall be subsequently relocated without Lessor s approval which approval shall not be unreasonably withheld or delayed. Lessor shall cooperate with CTWA to prepare, process and follow to conclusion any requirement by CTWA to obtain, at CTWA s cost and expense, all necessary permits, re-permitting, testing, or any action required of CTWA to maintain compliance with any regulatory requirements in connection with the installation and operation of the OH-20 System. Further, Lessor shall be responsible for the payment of any fees, costs or charges imposed by the Susquehanna River Basin Commission, DEP or other regulatory body as a result of or related to the use of the Park Property for Park 3

4 purposes, including but not limited to costs or fees imposed for consumptive water use. Upon installation, CTWA shall use, operate and maintain the OH-20 System throughout the Term of this Lease in accordance with the terms and conditions hereof. The OH-20 System shall be owned by and remain the exclusive asset of CTWA during the Term of this Lease. (ii) CTWA shall, at CTWA s cost and expense, establish the interconnection between the OH-20 System and the balance of the Water System. Lessor shall provide such access to its portion of the Water System and cooperate as needed to facilitate such interconnection. 3. Rent. CTWA shall pay to Lessor, as consideration for the grant of this Lease, annual rent of One ($1.00) Dollar. 4. Water Service. a. Upon approval and receipt of all permits necessary to comply with any regulatory requirements of a Transient Noncommunity Water Supply well and installation of the OH-19 System, and for the duration of the Term of this Lease or for such shorter period of time as set forth below, CTWA will provide water from OH-19 sufficient to service the Park facilities as such facilities are contemplated by the Master Plan attached hereto as Exhibit A, including service to the restrooms and concessions building, maintenance building, 4,000 gallon fire water storage tank, drinking fountains and irrigation systems (collectively, the Park Water Service ), in amounts not to exceed 25,000 gallons per day and 1,000,000 gallons per year. In consideration for CTWA s provision of the Park Water Service, Lessor shall pay to CTWA an annual fee of One ($1.00) Dollar, provided however, in any year when Lessor requires water from OH-19 in excess of 1,000,000 gallons for the Park Water Service, such water shall be purchased by Lessor in an amount equal to CTWA s then-current cost per thousand gallons as set forth annually in CTWA s rate structure. As of the date of this Lease, said amount is $6.10. b. Upon approval and receipt of all permits necessary to comply with any regulatory requirements of a Community Water System well and installation of the OH- 20 System, CTWA shall have the option to drain and mothball OH-19 in accordance with DEP regulations and provide the Park Water Service through the OH-20 System, subject however, to the same limitations and cost provisions as set forth in Section 4(a) above. c. CTWA shall have no obligation to provide the Park Water Service if either of the following occur at such time that OH-20 is not operational: (i) OH-19 no longer produces water sufficient for the Park Water Service, or (ii) neither the Township nor CTWA is able to obtain or maintain any permit necessary to operate OH-19 through no fault or unreasonable delay of either party. 5. Term. The term of this Lease shall be for a period of ninety-nine (99) years commencing upon the date of the execution of this Lease and expiring at 5:00 p.m. on the 4

5 day preceding the expiration of ninety-nine (99) years from the date of this Lease. Provided, however, if during the Term of this Lease, neither the Township nor CTWA is able to obtain or maintain any permit necessary to install or operate OH-20 for any reason, or otherwise at CTWA s discretion, CTWA shall have the option to terminate this Lease upon ninety (90) days written notice to Lessor. Upon such termination, this Lease shall become null and void and all parties shall be released from any further liability, obligation or for the performance of this Lease, except that CTWA and the Township, as necessary, shall, at CTWA s cost and expense and within sixty (60) days of CTWA s written notice of termination, seal OH-20 and properly abandon the same in accordance with DEP regulations and transfer the OH-19 System and any existing permits for the OH-19 System to Lessor. 6. Use. a. CTWA and its agents agree to install, use, operate and maintain the Water System and use the Leased Premises in such manner as not to materially interfere with Lessor s functions or uses of the Park Property, except as permitted by this Agreement, and in compliance with all federal, state and local laws and regulations. Additionally, CTWA and its agents agree that it shall not engage in cutting of timber or extraction of minerals, except as permitted by this Agreement. CTWA and its agents shall remove all waste materials that may be placed upon the Park Property for purposes of maintenance of the OH-19 System or the OH-20 System as soon as practical and in no event longer than five (5) days from commencement of said maintenance. b. Lessor and its agents agree to construct, use, operate and maintain the Park and the Park Property in such manner as not to materially interfere with CTWA s operation of the OH-19 System and the OH-20 System, except as permitted by this Agreement. Specifically, Lessor agrees not to engage in any activity or permit any activity upon the Park Property or on contiguous property owned by Lessor which would interfere with, pose a threat of contamination to or otherwise endanger the integrity of the Water System, including but not limited to those prohibited and limited land uses set forth in College Township Ordinance O Wellhead Protection Ordinance, adopted December 20, 2012, as such Ordinance may be amended from time to time. Further, Lessor will not construct any structures, systems or other physical improvements on the Leased Premises, other than those contemplated on Exhibit B, without CTWA s prior written consent. 7. Maintenance. a. CTWA shall, at its cost and expense, maintain and insure the wells and well heads for OH-19, OH-20 and OH-23; the Pumphouse and well station housed thereby; as well as the water mains, service connections and appurtenances making up that portion of the Water System depicted in red and green on Exhibit B, including the draining and mothballing of the red portion of the Water System within thirty (30) days of written request of Lessor, which request shall not occur more frequently than once each 5

6 year, and shall keep the same in good repair and condition during the Term of this Lease. Provided, however, any damage to the above-stated facilities caused by actions of Lessor or its agents, successors or assigns shall be the sole responsibility and expense of Lessor and repairs shall be promptly completed by Lessor to return said facilities to the condition prior to said damage. b. Lessor shall, at its cost and expense, maintain and insure all of the Park Property grounds, including the grounds within the Leased Premises, all Park structures other than the Pumphouse, and the water mains, service connections and appurtenances making up that portion of the Water System depicted in blue on Exhibit B and shall keep the same in such good repair and condition so as not to interfere with CTWA s installation, use and operation of the Water System. Provided, however, any damage to the Park Property caused by actions of CTWA or its agents, successors or assigns shall be the sole responsibility and expense of CTWA and repairs shall be promptly completed by CTWA to return the Park Property to the condition prior to said damage. 8. Indemnification. a. In connection with the installation, use, operation and/or maintenance of the OH-19 System and the OH-20 System, as provided for herein, as well as other activities provided for herein, CTWA agrees to assume full risk of and responsibility for and to release, discharge, indemnify, hold harmless and, if requested, defend Lessor against and from any and all loss, costs, expenses, damages, injuries or deaths, caused by CTWA or its agents, successors or assigns, including but not limited to injuries or deaths to employees of CTWA. CTWA at its expense, will provide Comprehensive General Liability Insurance coverage, including premises/operations coverage, independent contractor s liability, completed operations coverage, contractual liability coverage, with a combined single limit of not less than One Million Dollars ($1,000,000.00) per occurrence and Two Million Dollars ($2,000,000.00) aggregate. CTWA shall provide Lessor thirty (30) days written notice of any termination of or change in the coverage provided. CTWA shall make Lessor additional insureds on said policy of insurance. b. In connection with the construction, use, operation and maintenance of the Park and the Park Property, as well as other activities provided for herein, Lessor agrees to assume full risk of and responsibility for and to release, discharge, indemnify, hold harmless and, if requested, defend CTWA against and from any and all loss, costs, expenses, damages, injuries or deaths, caused by Lessor or its agents, successors or assigns, including but not limited to injuries or deaths to employees of Lessor. Lessor at its expense, will provide Comprehensive General Liability Insurance coverage, including premises/operations coverage, independent contractor s liability, completed operations coverage, contractual liability coverage, with a combined single limit of not less than One Million Dollars ($1,000,000.00) per occurrence and Two Million Dollars ($2,000,000.00) aggregate. Lessor shall provide CTWA thirty (30) days written notice of any termination of or change in the coverage provided. Lessor shall make CTWA additional insured on said policy of insurance. 6

7 9. Electrical Service. CTWA shall separately meter charges for the consumption of electricity for purposes of installing, operating and maintaining the OH-19 Water System and the OH-20 Water System and shall pay all costs associated therewith. Lessor shall be responsible for the costs associated with the consumption of electricity for purposes of operating the balance of the Park facilities. 10. Condemnation. If during the term of this Lease, all or any portion of the Leased Premises should be taken for any public or quasi-public use under any law, ordinance of regulation or by right of eminent domain, or should be sold to the condemning party under the threat of condemnation, such that CTWA in its sole discretion is unable to continue to operate the OH-19 System or the OH-20 System, if the OH-19 System has been replaced by the OH-20 System at such time, this Lease shall terminate effective as of the date of the taking of said premises by the condemning authority. Lessor and CTWA shall each be entitled to receive and retain such separate awards and portions of lump sum awards as may be allocated to their respective interests in any condemnation proceedings. The termination of this Lease shall not affect the rights of the respective parties to such awards. 11. Assignment. CTWA may not assign or sublet this Lease without the prior written consent of Lessor except to any entity resulting from any merger or consolidation with CTWA. 12. Right of Entry Agreement Superseded. This Lease supersedes and replaces in its entirety the Right of Entry Agreement between the parties dated December, 2011, as amended and/or extended from time to time. 13. Entire Agreement. This Lease constitutes the entire understanding between the parties hereto and shall not be modified, altered or changed unless by written instruments executed by the parties hereto with the same formality as this Lease. 14. Governing Law. This Lease shall be constructed under and in accordance with the laws of the Commonwealth of Pennsylvania and all obligations of the parties created hereunder are performable in Centre County. 15. Binding. This Agreement shall be binding upon the parties hereto, their heirs, successors, executors, administrators and assigns. 16. Notices. All notices to be given hereunder shall be in writing and shall be deemed sufficient if deposited in the United States Mail, postage prepaid, addressed to the addresses set forth above or to such other addresses as either party may advise the other from time to time in writing. 17. Memorandum of Lease. CTWA shall be permitted to record a Memorandum of this Lease in the office of the Recorder of Deeds of Centre County, Pennsylvania memorializing the terms of this Lease Agreement. 7

8 18. Legal Construction. In case any one or more of the provisions contained in this Lease shall for any reason be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision thereof and this Lease shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. 19, Rights and Remedies Cumulative. The rights and remedies provided by this Lease are cumulative and the use of any one right or remedy by either party shall not preclude or waive its right to use any or all other remedies. Said rights and remedies are given in addition to any other rights the parties may have by law, statute, ordinance, or otherwise. 20. Waiver of Default. No waiver by the parties hereto of any default or breach of any term, condition or covenant of this Lease shall be deemed to be waiver of any other breach of the same or any other term, condition or covenant contained herein. IN WITNESS WHEREOF, the parties hereto, intending to be legally bound, have executed this Lease the day and year first above written. LESSOR: CENTRE REGION PARKS AND RECREATION AUTHORITY By: Its: CENTRE REGION COUNCIL OF GOVERNMENTS By: Its: COLLEGE TOWNSHIP By: Its: COLLEGE TOWNSHIP WATER AUTHORITY By: Its: ::ODMA\PCDOCS\DOCSLIB2\486316\3 8

9 COMMONWEALTH OF PENNSYLVANIA ) ) SS COUNTY OF CENTRE ) On this, the day of, 2013, before me the undersigned officer, personally appeared, who acknowledged him/herself to be the of CENTRE REGION PARKS AND RECREATION AUTHORITY, and that as such officer, being duly authorized to do so, executed the foregoing instrument for the purposes therein contained by signing the name of the corporation by him/herself as such officer. IN WITNESS WHEREOF, I have hereunto set my hand and official seal. Notary Public My Commission Expires: COMMONWEALTH OF PENNSYLVANIA ) ) SS COUNTY OF ) On this, the day of, 2013, before me the undersigned officer, personally appeared, who acknowledged him/herself to be the of CENTRE REGION COUNCIL OF GOVERNMENTS and that as such officer, being duly authorized to do so, executed the foregoing instrument for the purposes therein contained by signing the name of the corporation by him/herself as such officer. IN WITNESS WHEREOF, I have hereunto set my hand and official seal. Notary Public My Commission Expires: 9

10 COMMONWEALTH OF PENNSYLVANIA ) ) SS COUNTY OF ) On this, the day of, 2013, before me the undersigned officer, personally appeared, who acknowledged him/herself to be the of COLLEGE TOWNSHIP and that as such officer, being duly authorized to do so, executed the foregoing instrument for the purposes therein contained by signing the name of the corporation by him/herself as such officer. IN WITNESS WHEREOF, I have hereunto set my hand and official seal. Notary Public My Commission Expires: COMMONWEALTH OF PENNSYLVANIA ) ) SS COUNTY OF ) On this, the day of, 2013, before me the undersigned officer, personally appeared, who acknowledged him/herself to be the of COLLEGE TOWNSHIP WATER AUTHORITY and that as such officer, being duly authorized to do so, executed the foregoing instrument for the purposes therein contained by signing the name of the corporation by him/herself as such officer. IN WITNESS WHEREOF, I have hereunto set my hand and official seal. Notary Public My Commission Expires: 10

11 EXHIBIT A Oak Hall Regional Park Phase I Master Plan 11

12 EXHIBIT B Oak Hall Regional Park Phase I Utility Plan 12