CC 2012-09-25_08.i. Land Lease Agreement Verizon WirelessMEMORANDUM
TO: CITY COUNCIL
FROM: TIMOTHY J. CARMEL, CITY
SUBJECT: CONSIDERATION OF APPROVAL OF LAND LEASE AGREEMENT
WITH VERIZON WIRELESS
DATE: SEPTEMBER 25,2012
RECOMMENDATION:
It is recommended the City Council approve and authorize the Mayor to execute a Land
Lease Agreement between the City and GTE Mobilnet of Santa Barbara Limited
Partnership, dba Verizon Wireless ("Verizon") for use of approximately eight hundred
thirty-three (833) square feet of property located at 300 Reservoir Road.
IMPACT ON FINANCIAL AND PERSONNEL RESOURCES:
Verizon will pay the City rent of two thousand dollars ($2,000) per month. Rent is
increased each year by,an amount equal to three (3) percent of the rent for the previous
year. A monopine will be constructed at Verizon's sole cost, to accommodate Verizon's
antenna and other appurtenances; the City shall have the right to 40% of all rent paid by
any subleases of Verizon. Additionally, Verizon will pay a one-time administrative review
and processing fee of two thousand hundred dollars ($2,000). Minimal impacts on
personnel resources to administer the Agreement and associated rent payments.
BACKGROUND:
Verizon expressed an interest in leasing a portion of the Reservoir Site for a wireless
communications site. After negotiations, the parties drafted the attached Land Lease
Agreement ("Lease") for an approximate 833 square foot portion of the Reservoir Site
and the construction of a monopine. The term of the Lease is for five (5) years with four
(4) additional five (5) year extensions.
ANALYSIS OF ISSUES:
Verizon's application for a conditional Use Permit to operate the proposed facility was
approved by the Planning Commission on September 18, 2012. Prior to construction of
any improvements on the proposed Lease site, Verizon will be required to obtain.all
necessary building permits and comply with all applicable conditions for its proposed
facility. The proposed equipment should have minimal impacts since it will be on a site
shared by other cellular facilities.
Item 8.i. - Page 1
CITY COUNCIL
CONSIDERATION OF APPROVAL OF LAND LEASE AGREEMENT WITH VERIZON
WIRELESS
SEPTEMBER 25,2012
PAGE 2
ALTERNATIVES:
The following alternatives are provided for the Council's consideration:
1. Approve staffs recommendation;
2. Do not approve staffs recommendation; or
3. Provide direction to staff.
ADVANTAGES:
Approval of the Lease will result in annual General Fund revenue of twenty-four
thousand dollars ($24,000) which amount shall be increased annually by three percent
(3%).
DISADVANTAGES:
No disadvantages have been identified.
ENVIRONMENTAL REVIEW:
No environmental review is required for approval of the Land Lease Agreement.
PUBLIC NOTIFICATION AND COMMENTS:
The Agenda was posted in front of City Hall on Thursday, September 20, 2012. The
Agenda and report were posted on the City's website on Friday, September 21, 2012.
No public comments were received.
Item 8.i. - Page 2
LAND LEASE AGREEMENT
This ~e&e Agreement (the "Agreement" or "Lease") is made as of the date of full execution below,
between the City of Arroyo Grande, a municipal corporation of the State of California, with its
mailing address located at 300 East Branch Skeet, Arroyo Grande, California 93420, Tax ID #95-
6000-668, hereinafter designated LESSOR, and GTE Mobilnet of Santa Barbara Limited
Partnership, a Delaware Limited Partnership, dba Verizon Wireless, by Cellco partnership, its
general partner, with its principal office located at One Verizon Way, Mailstop 4AW100, Basking
Ridge, New Jersey 07920, hereinafter designated LESSEE. LESSOR and LESSEE are at times
collectively referred to hereinafter as the "Parties" or individually as the "Party."
1. PREMISES. LESSOR is the owner of that certain parcel of property (the entirety
of LESSOR'S property is referred to hereinafter as the "Fee Parcel"), located at 304 Reservoir Road,
Arroyo Grande, California 93421, which property is more particul&ly described in Exhibit "A"
attached hereto and made a part hereof, also knowri as assessor's parcel number ("APN") 007-01 1 -
003 recorded in the Office of the County Recorder of the County of San Luis Obispo. LESSOR is
the holder of exclusive permanent easements in those certain parcels of property located at 250
Westley Avenue and 240 Vernon Street, Arroyo Grande, California 93421, which property is more
particularly described in Exhibit "A" attached hereto, also known as APN 007-0 1 1-02 11007-0 1 1 -
049 and PLPN 007-01 1-023, respectively (collectively, the "Easement Parcels"). The Fee Parcel and
the Easement Parcels are hereinafter collectively referred to as the bbProperty." LESSOR hereby
licenses to LESSEE a portion of the Easement Parcels and leases to LESSEE a portion of the Fee
Parcel (collectively, the "Premises"), including approximately eight hundred thirty-three (833)
square feet of property, together wit11 the non-exclusive right for ingress and egress, seven (7) days
a week twenty-four (24) hours a day, on foot or motor velljcle, including trucks, and for the
installation and maintenance of utility wires, cables, and conduits, under, a twelve foot (12') wide
right-of-way extending from the nearest public right-of-way, West Branch Street, across the
Property and running to the Premises. The Premises are more particularly described in Exhibit "B"
attached hereto and made a part hereof. In the event any public utility is unable to use the
aforementioned right-of-way, LESSOR hereby agrees to grant an additional right-of-way to either
LESSEE or to the public utility at no cost to LESSEE.
2. SURVEY. LESSOR also hereby grants to LESSEE the right to survey the
Property and the Premises, and said survey sl~all then become Exhibit "C" which shall be attached
hereto and made a part hereof, and shall control in the event of boundary and access discrepancies
between it and Exhibit "B." Cost for such work shall be borne by LESSEE.
3. TERM. Tlis Agreement shall be effective as of tlle date of execution by both
Parties, provided, however, the initial term shall be for five (5) years and shall commence on the
Commencement Date (as hereinafter defined). The Commencement Date is defined as the first (1st)
day of the month following the date this Agreement is executed by the Parties or the first (1st) day
of the month following the date LESSEE is granted a building.permit by the governmental agency
charged with issuing such permits, whichever event occurs last. This Agreement shall
automatically be extended for four (4) additional five (5) year terms unless LESSEE terminates it at
the end of the then current term by giving LESSOR written notice of the intent to terminate at least .
six (6) months prior to the end of-the then current term.
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4. ADDITIONAL EXTENSIONS. If at the end of the fourth (4th) five (5) year
extension term this Agreement has not been terminated by either Party by giving to the other written
notice of an intention to terminate at least six (6) months prior to the end of such term, this
Agreement shall continue in force upon the same covenants, terms and conditions for a further term
of five (5) years and for five (5) year terms thereafter until terminated by either Party by giving to
the other written notice of its intention to so terminate at least six (6) months prior to the end of
such term.
5. RENT.
(a) Within thirty (30) business days of the Commencement Date, and on the fist day of
each month thereafter, LESSEE shall pay to LESSOR Two Thousand Dollars ($2,000.00) per
month ("Rent"). Rent for any fractional month at the end of the term or renewal tenns shall be
prorated. Rent shall be payable to LESSOR at City of Arroyo Grande, P.0, Box 550, 300 East
Branch Street Arroyo Grande, CA 9342 1 ; Attention: Financial Services Director.
(b) During the term hereof, LESSEE shall have the right to sublet all or-a portion -of the
Premises, upon notice to LESSOR, to any designated wireless communication provider, provided
such sublease is subject to the provisions of this Agreement. LESSOR shall be entitled to additional
monthly rent fiom any such sublessee pursuant to the terms and provisions of Paragraph 16 of this
Agreement.
(c) Rent sl~all be increased on each anniversary of the Commencement Date by an
amount equal to three percent (3%) of the Rent for the previous year during the initial term and all
extension terms.
(d) Rent payments made after the fifteenth (I 5th) day of any month will be considered
delinquent, and shall accrue interest at the rate of six percent (6%) per annum on that delinquent
amount until LESSEE'S account is paid to current. If the fifteenth (15th) day of the month is on a
Saturday, Sunday or holiday, then LESSEE has until the next business day for the payment to be
received by LESSOR.
(e) Within forty-five (45) days of the full execution of this Agreement, LESSEE
shall pay to LESSOR as additional consideration a one-time administrative fee of Two Thousand
Dollars ($2,000.00) for LESSOR'S transactional costs associated with preparation and processing of
this Agreanent.
6. USE: GOVERNMENTAL APPROVALS. LESSEE shall use the Premises solely
for the purpose of constructing, maintaining and operating a wireless communications site and all
necessary appurtenances and shall abide by, and keep itself hlly informed of all applicable Federal,
State and local rules and regulations including, but not limited to, City's Telecommunication
Facilities Siting and Permit Submittal Requirements, Resolution No. 3569. A security fence
consisting of chain link construction or similar but comparable construction may be placed around
the perimeter of the Premises at the discretion of LESSEE, subject to obtainirig all necessary
permits and approvals. All improvements shall be at LESSEE'S expense and the installation of all
improvements shall be at the discretion and option of LESSEE subject to site design approval by
LESSOR. LESSEE shall have the right to replace, repair, add or otherwise modify its equipment or
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any portion thereof, whether the equipment is specified or not on any exhibit attached hereto, during
the tern of this Agreement. LESSEE will maintain the Premises in a good condition, reasonable
wear and tear and casualty damage excepted. LESSOR will maintain the Property, but excluding the
Premises, in good condition, reasonable wear and tear excepted.
It is understood and agreed that LESSEE'S ability to use the Premises is contingent upon its
obtaining after the execution date of this Agreement all of the certificates, permits and other
approvals (collectively the "Governmental Approvals")' that may be required by any Federal, State
or Local authorities, including all land use pqmits required by the City of Arroyo Grande which
will permit LESSEE use of the Premises as s& forth above. LESSOR shall cooperate with LESSEE
in its effort to obtain such approvals. In the event that any of Governmental Approvals should be
finally rejected or any Governmental Approval issued to LESSEE is canceled, revoked, expires,
lapses, or is otherwise withdrawn or terminated by governmental authority, or soil boring tests are
found to be unsatisfactory so that LESSEE in its reasonable discretion will be unable to use the
Premises for its intended purposes, or LESSEE, in its sole discretion, determines that the use the
Premises is obsolete or unnecessary, LESSEE shall have the right to terminate this Agreement,
provided that at least three (3) months prior written notice is given to LESSOR. Notice .of
LESSEE'S exercise of its right to terminate shall be given to LESSOR in writing by certified mail,
return receipt requested, and shall be effective upon the mailing of such notice by LESSEE. All
rentals paid to said termination date shall be retained by LESSOR. Upon such termination, this
Agreement shall be of no further force or effect except to the extent of the representations,
warranties and indemnities made by each Party to the other hereunder. Otherwise, all the Parties
shall have no Mer obligations including the payment of money, to each other.
7. TAXES. LESSEE shall pay any personal property taxes assessed on, or any
portion of such taxes attributable to, LESSEE's co~nmunications facility or LESSEE's use and
occupancy of the Property. LESSOR shall pay when due all real property taxes and all other fees
and assessments attributable to the Premises. LESSEE shall pay, as additional renf any increase in
real property taxes levied against the Property which is attributable to LESSEE's use of the Property
upon production of documentary proof of such increase to LESSEE. Either Party to this Agreement
may timely file a protest with the appropriate taxing authority, and LESSOR consents to LESSEE's
intervention and timely protest with the appropriate taxing authority. The Parties will reasonably
cooperate with each other with information regarding the relative valuation of their property and
allow each other to participate in any proceeding related to the tax protest. LESSEE shall
indemnify, defend and hold LESSOR l~arrnless fiom and against any damage or loss to the extent
arising out of or attributable to LESSEE's tax protest with the respective taxing authority. In the
event one Party fails to comply with the requirement to pay taxes or any other legal requirement and
that noncompliance interferes with the other Party's rjghts under tllis Agreement, the compliant
Party will have the right after thty (30) days written notice to the noncompliant Party to takes steps
necessary to effect compliance. All costs and expenses incurred by the compliant Party in effecting
compliance will be either charged to LESSEE, in the event LESSEE is the noncompliant Party, or
offset against Rent in the event LESSOR is the noncompliant Party.
8. INDEMNITY; INSURANCE.
(a) Indemnity. This Agreement is made upon the express condition that LESSEE shall
indernnifi, defend, keep and save harmless LESSOR, and its directors, officials, officers, agents and
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employees (collectively, the "LESSOR Parties") against any and all suits, claims or actions, and any
losses, costs or damages, including reasonable attorneys' fees, arising out of any injury or injuries
to, or death or deaths of, persons or damage to property that may occur, or that may be alleged to
have occun-ed, from any cause or causes whatsoever (collectively, "Claims"), to the extent resulting
fiom LESSEE'S negligence or willful misconduct during the term of this Agreement, including any
extension term or during any holdover tenancy thereof, except to the extent caused by the proven
active negligence or willful misconduct of any of the LESSOR Parties.
Nstwithstanding any other provision of this Agreement, neither Party shall be liable to the
other for consequential damages, damages for lost income and profits, exemplary or punitive
damages or other special damages, whether in tort, contract or equity.
(3) Insurance. LESSEE shall maintain prior to the beginning of and for the duration of
tlus Agreement insurance coverage as specified in Exhibit "D" attached hereto and incorporated
herein as though set forth in full.
9. ANNUAL TERMINATION. Notwithstanding anytlung to the contrary contained
herein, and provided LESSEE is not in default hereunder beyond applicabIe notice and cure periods
and shall have paid all rents and sums due and payable to LESSOR by LESSEE, LESSEE shall
have the right to terminate tlGs Agreement upon the annual anniversary of this Agreement, provided
that six (6) months prior written notice is given LESSOR
10. INTERFERENCE.
(a) LESSOR agrees that LESSOR andlor any other tenants of the Property who
currently have or in the future take possession of the Property will be permitted to install only such
radio equipment that is of the type and frequency, which will not cause measurable interference to
the existing equipment of LESSEE.
(3) LESSEE shall construct, maintain and operate the Premises and improvements
thereon in such a manner that will not cause interference to LESSOR including, but not limited to,
LESSOR'S re-broadcaster for its fire, police and other public safety departments, and other lessees
or licensees of the Property. All operations by LESSEE shall be in compliance with all Federal
Communications Commission ("FCC") requirements and all applicable laws.
(c) Subsequent to LESSEE'S construction, installation and operation of improvements in
the Premises, LESSOR shall not pennit itself, its lessees, or its licensees to install new equipment
on the Property contiguous thereto owned or controlled by LESSOR, if such equipment will cause
interference with LESSEE'S operations. In the event interference occurs, LESSOR agrees to take all
reasonable steps necessary to eliminate such interference, in a reasonable time period.
Notwithstanding anythug herein to the contrary, in the event LESSOR fails to comply with this
Section 10, LESSEE'S sole remedy is to terminate this Agreement.
1 1. REMOVAL UPON TERMINATION. LESSEE, upon termination of this
Agreement, shall, within ninety (90) days, remove its building(s), antenna installation(s) (except
footings), fixtures and al.1 personal property and otherwise restore the Premises to its original
condition, reasonable wear and tear and casualty damage excepted. LESSOR agrees and
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acknowledges that all of the equipment, fixtures and personal property of LESSEE sl~all remain the
personal property of LESSEE and LESSEE shall have the right to remove the same, whether or not
said items are considered fixtures and attachments to real property under applicable law. If such
time for removal causes LESSEE to remain on the Premises after termination of this Agreement,
LESSEE shall pay Rent at the then existi& monthly rate or on the existing monthly pro-rata basis if
based upon a longer payment tern, until such time as the removal of tlle buildihg, antenna structure,
fixtures and all personal property are completed.
12. RIGHTS UPON SALE. Should LESSOR, at anytime during the term of this
Agreement, decide to sell all or any part of the Property to a purchaser other than LESSEE, such
sale shall be under and subject to this Agreement and LESSEE'S rights hereunder, and any sale by
LESSOR of the portion of this Property underlying the right-of-way herein granted shall be under
and subject to the right of LESSEE in and to such right-of-way.
13. QUIET ENJOYMENT. LESSOR covenants that LESSEE, on paying tile Rent
and performing tlle covenants shall peaceably and quietly have, hold and enjoy the Premises.
14. TITLE. LESSOR covenants that LESSOR is seized of good and sufficient title and
interest to the Property and has 111 authority to enter into and execute this Agreement LESSOR
further covenants that there are no other liens, judgments or impediments of title on tlle Property or
affecting LESSOR'S title to the same and that there are no covenants, easements or restrictions
which prevent the use of tile Premises by LESSEE as set forth above.
15. INTEGRATION. It is agreed and understood that this Agreement contains all
agreements, promises and understandings between LESSOR and LESSEE and that no verbal or oral
agreements, prolnises or understandings shall be binding upon either LESSOR or LESSEE in any
dispute, controversy or proceeding at law, and any addition, variation or modification to. this
Agreement shall be void and ineffective unless made in writing and signed by the Parties. In the
event any provision of this Agreement is found to be invalid or unenforceable, such finding shall
not affect the validity and enforceability of the remaining provisions of this Agreement. The failure
of either Party to insist upon strict performance of any of the terms or conditions of this Agreement
or to exercise any of its rights under tlis Agreement shall not waive such rights and such Party shall
have tl~e right to enforce such rights at any time and take such action as may be lawful and
authorized under this Agreement, either in law or in equity.
16. ASSlGNMENT. This Agreement may be assigned by LESSEE without any
approval or consent of LESSOR to LESSEE'S principal, affiliates, subsidiaries of its principal; to
any entity which acquires all or substantially all of LESSEE'S assets in the market defined by the
FCC in which the Property is located by reason of a merger, acquisition or other business
reorganization; or to any entity which acquires or receives an interest in the majority of
comrnunicatio~~ towers of LESSEE in the market defined by the FCC in which the Property is
located. As to other parties, tllis Agreement may not be sold, assigned or transferred without the
written consent of LESSOR, which consent shall not be unreasonably withheld, conditioned or
delayed. LESSEE may sublet space on LESSEE'S tower located on the Premises (the "Tower")
within its sole discretion, upon notice to LESSOR. Any sublease that is entered into by LESSEE
shall be subject to the provisions of this Agreement including, but not limited to, tile provisions for
payment of additional montldy rent as stated below, and shall be binding upon the successors,
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assigns, heirs and legal representatives of the respective Parties hereto.
In the event LESSEE subleases any space on the Tower to any party which is not a permitted
assignee as described above, in accordance with this Agreement, any rental paid by any sublessee(s)
shall be divided between LESSOR and LESSEE in the following manner: forty percent (40%) to
LESSOR and sixty percent (60%) to LESSEE. LESSEE shall not be responsible to LESSOR for
the collection or payment of rents by the sublessee to LESSOR, and LESSEE shall have no liability
to LESSOR in the event of failure of payment by the sublessee. In this event: (i) LESSEE shall
have no liability of any nature to LESSOR for failure to sublet Premises to any or all potential
sublessee(s), and (ii) at LESSOR'S request, LESSEE will provide LESSOR with a tri-party
agreement to be executed by LESSEE, its sublessee, and LESSOR to confirm the direct payment
obligation from the sublessee to LESSOR and to indicate LESSOR has been notified. of the
sublease. It is understood and agreed by the Parties that the foregoing rental percentage amounts
shall only apply if LESSEE is able to accommodate all of the sublessee's facilities within the
Premises. If LESSEE is unable to accommodate any or part of the sublessee's facilities within the
Premises, then LESSOR may enter into an agreement with the sublessee for a portion of the
Property that the sublessee requires to locate its facilities. In this event, LESSOR shall receive one
hundred percent (1 00%) of the rental, negotiated by LESSOR and the sublessee, for the portion of
the sublessee's facilities that are located on the Property outside LESSEE'S Premises.
17. 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 fwther 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: City Manager, City of Arroyo Grande
300 East Branch Street
. Arroyo Grande, California 93421
LESSEE: GTE Mobilnet of Santa Barbara Limited Partnership,
dba Verizon Wireless
180 Washington Valley
Bedminster, New Jersey 07921.
Attention: Network Real Estate
(Site: Hwy 101 & Branch, #247223)
Notice shall be effective upon actual receipt or rehal as sl~own on the receipt obtained pursuant to
the foregoing.
IS. SUCCESSORS. This Agreement shall extend to and bind the heirs,
personal representatives, successors and permitted assigns of the Parties hereto.
19. SUBORDINATION AND NON-DISTURBANCE. At LESSOR'S option, this
Agreement shall be subordinate to any mortgage or other security interest by LESSOR which fiom
time to time may encumber all or part of the Property or right-of-way, provided, however, every
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such mortgage or other security interest shall recognize the validity of this Agreement in the event
of a foreclosure of LESSOR'S interest and also 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 cure periods. LESSEE shall execute whatever instruments may reasonably be required to
evidence this subordination clause. In the event the Property is encumbered by a mortgage or other
security interest, LESSOR will obtain and furnish to LESSEE, a non-disturbance agreement for
each such mortgage or other security interest in recordable fom. In the event LESSOR defaults in
the payment andlor other performance of any mortgage or other security 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 security 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.
20: RECORDING. LESSOR agrees to execute a Memorandum of tlis Lease 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 term or rent payments.
21. DEFAULT. In the event there is a default by LESSEE with respect to any of the
provisions of this Agreement or its obligations under it, including the payment of rent, LESSOR
shall give LESSEE written notice of such default. After receipt of such written notice, LESSEE
shall have fifteen (15) days in which to cure any monetary default and thirty (30) days in which to
cure any non-monetary default, provided LESSEE shall have such extended period' as may be
required beyond the hrty (30) days if the nature of the cure is such that it reasonably requires more
than thirty (30) days and LESSEE commences the cure within the tlurty (30) day period and
thereafter continuously and diligently pursues the cure to completion. LESSOR may not maintain
any action or effect any remedies for default against LESSEE unless and until LESSEE has fhiled to
cure the same within the time periods provided in this Paragraph.
22. ENVIRONMENTAL. LESSOR represents that, to the best of LESSOR's
knowledge, the Premises have not been used for the generation, storage, treatment or disposal of
hazardous materials, hazardous substances or hazardous wastes. In addition, LESSOR represents
that, to the best of LESSOR's knowledge, no hazardous materials, hazardous substances, hazardous
wastes, or underground storage tanks are located on or near the Premises. LESSEE will not bring
onto or store on the Premises hazardous materials, hazardous substances or hazardous wastes.
Notwithstanding the immediately preceding sentence, LESSOR and LESSEE acknowledge that
LESSEE may be utilizing and maintaining on the Premises sealed batteries, propane/dieseVgaioline,
WAC system, and a halon/Fh4200 fire suppression system and that the use and maintenance of
such items shall not constitute a violation or breach of this paragraph. LESSEE sllall be responsible
for and shall ihdemnifj and hold harmless LESSOR fiom any and all liabilities and damages,
including but not limited to removal costs, to the extent arising out of any environmental damage
caused by LESSEE.
23. CASUALTY. In the event of damage by fire or other casualty to the 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 ot.l~& casualty so that such damage may reasonably be expected to
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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, terminate this Lease
upon fifteen (15) days written notice to LESSOR. Any such notice of termination shall cause this
Lease to expire with tlle same force and effect as though the date set forth in such notice were the
date originally set as the expiration date of this Lease and the Parties shall make an appropriate
adjustment, as of such termination date, with respect to payments due to the other under this Lease.
Notwithstanding the foregoing, all rents shall abate during the period of repair following such fie
or other casualty.
24. CONDEMNATION. In the event of any condemnation of the Property, LESSEE
may terminate tbis Lease upon fifteen (15) days written notice to LESSOR if such condemnation
may reasonably be expected to disrupt LESSEE'S operations at the Premises for more than forty-
five (45) days. LESSEE may on its own behalf make a claim in any condemnation proceeding
involving the Premises for losses related to the antennas, equipment, its relocation costs and its
damages and losses (but not for the loss of its leasehold interest). Any such notice of termination
shall cause this Lease to expire with tl~e same force and effect as though the date set forth in such
notice were the date originally set as the expiration date of this Lease and the Parties shall make an
appropriate adjustment as of such termination date with respect to payments due to the other under
this Lease.
25. SUBMISSION OF LEASE. The submission of this Lease for examination does not
constitute & offer to lease the Premises and this Lease becomes effective only upon the full
execution of this Lease by the Parties. If any provision herein is invalid, it shall be considered
deleted from this Lease and shall not invalidate the remaining provisions of this Lease. Each of the
Parties hereto warrants to the other that the person or persons executing this Lease on behalf of such
Party has the full right, power and authority to enter into and execute this Lease on such Party's
behalf md that no consent from any other person or entity is necessary as a condition precedent to
the legal effect of this Lease.
26. APPLICABLE LAWS. LESSEE shall use the Premises as may be required or as
permitted by applicable laws, rules and regulations. LESSOR agrees to keep the Property in
conformance with all applicable, laws, rules and regulations and agrees to reasonably cooperate
with LESSEE regarding any compliance required by LESSEE in respect to its use of the Premises.
27. SURVJVAL. The provisions of this Agreement relating to indemnification from
one Party to the other Party 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.
28. CAPTIONS. The captions contained in this Agreement are inserted for
convenience only and are not intended to be part of this Agreement. They shall not affect or be
utilized in the construction or interpretation of this Agreement.
29. WAIVERS. No provision of this Lease Agreement shall be deemed to have been
waived by a Party unless the waiver is in writing and signed by the Party against whom enforcement
of the waiver is attempted. No custom or practice which may develop between the Parties in the
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implementation or administration of the terms of this Lease Agreement shall be construed to waive
or lessen any right to insist upon strict performance of the terms of this Lease Agreement.
30. WVERNTNG LAW. COURTS. This Lease shall be governed by and construed
in accordance with the laws of the State of California. Sole venue for any legal claim arising
hereunder shall be in the Superior Court of the State of California in San Luis Obispo County.
3 1. ATTORNEY FEES AND COSTS. The prevailing Party in any legal cIaim arising
hereunder shall be entitled to its reasonable attorneys' fees and costs and court costs as may be
awarded by the court in a final, non-appealable action.
32. NO PRESUMPTIONS REGARDING PREPARATION OF LEASE AGREEMENT.
The Parties acknowledge and agree that each of the Parties has been represented by counsel or has
had full opportunity to consult with counsel and that each of the Parties has participated in the
negotiation and drafting of this Lease Agreement. Accordingly it is the intention and agreement of
the Parties that the language, terms and conditions of this Lease Agreement are not to be construed
in any way against or in favor of any Party hereto by reason of the roles and responsibilities of the
Parties or their counsel in connection with the preparation of this Lease Agreement.
(a) Unless the context of this Lease Agreement clearly requires otherwise: (i) the plural
and singular numbers shall be deemed to include the other; (ii) the masculine, feminine and neuter
genders shall be deemed to include the others; (iii) "or" is not exclusive; and (iv) "incIudesl' and
"including" are not limiting.
(b) The headings in this Lease Agreement are for reference only and are not
incorporated in any term herein for any purpose.
34. NO PERSONAL LIABlLITY OF OFFICIALS AND EMPLOYEES OF EITKER.
No elected official, officer, employee, agent, or volunteer of either Party shall be personally liable
for any default or liability whatsoever under this Lease Agreement, except in instances of criminal
negligence.
35. PUBLIC DOCUMENT. LESSOR is a municipal corporation under the laws of the
State of Califomia. LESSOR and LESSEE acknowledge that this Lease Agreement is subject to
public disclosure as specified by Califomia Government Code $ 6250 ei seq. and is a ''public
record" within the meaning of California Government Code 6252(e).
36. ClTY BUSINESS LICENSES AND CITY PERMITS REQUIRED. LESSEE,
including without limitation LESSEE'S contractors andlor representatives who perform any work at
the Premises on behalf of LESSEE, shall obtain a City of Arroyo Grande Business License before
performing any services permitted by this Lease, and shall maintain such license(s) in force at all
times subsequent during the Term of this Lease and any month-to-month tenancy thereafter.
Licensee shall obtain and maintain in force such business license during the Term hereof.
37. NO ASSURANCES. Execution of this Lease is completely unrelated to any and all
9
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U9911200.I
Item 8.i. - Page 11
City of Arroyo Grande planning process(es) and all other required municipal licenses, permits,
authorizations, and approvals whatsoever. Grant of this Lease does not assure LESSEE that it will
be successful in whole or in part in securing any or all required City of Arroyo Grande permits, or
any other required permits or authorizations. LESSEE is solely responsible, at its sole expense, for
securing any and all required governmental authorizations to construct and to operate the Facility
which shall be reviewed pursuant to prevailing City of Arroyo Grande requirements at that time.
-4
IN WITNESS WEEREOF, the Parties have caused this Agreement to be effective as of the
last date written below.
"LESSOR" "LESSEE"
CITY OF ARROYO GRANDE
TONY FERRUU, Mayor
Date:
A'ITEST:
KELLY WETMORE, City Clerk
APPROVED AS TO FORM:
GTE Mobilnet of Santa Barbara Limited Partnerslip, a
Delaware limited partnership, dba Verizon Wireless
By: Cellco Partn its general partner
Print Name: Walter.L. Jones, Ir.
Its: Area Vice resi ent Network i.b
TIMOTHY I. CARMEL, City Attorney
Date:
Hwy 101 8 Bmnch
U99 11 200.1
" 'L
Item 8.i. - Page 12
DESCRIPTION OF PROPERTY
to tllis Agreement dated ,201 -7 by and between City of Arroyo Grande,
a municipal corporation, as LESSOR, and GTE Mobilnet of Santa Barbara Limited Parthership, a
Delaware limited partnership, dba Verizon Wireless, by Cellco Partnership, its general partner, as
LESSEE
Fee Parcel:
Real property in the City of Arroyo Grande, County of San Luis Obispo, State of California,
described as follows:
THAT PORTION OF LOT 29 OF HARRIS RESU3DIVISIONS OF PARTOF RANCHO CORRAL DE
PIEDRA, EL PISM3 AND BCCSA DE CHUVIISAL, IN THE COLNTY OF SAN LUIS OBISPO, STATE OF
CALJBRNIA, AS PER MAP OF THE SUBDIVISION RECORDED NOVEMBER 24, 1886 IN BOCK A,
PAGE 63 OF MAF'S, IN THE OFFICE OF THE COCR\TP/ RECORDER OF SAID COUNTY, DESCRIBED
AS FOLLOWS:
COMF/ENCII\IG AT A PO:[NT ON ME NORTHERLY L.INE OF LOT 29 OF HARRIS' RESUBDIVISION
OF A PWT OF THE RANCHOS CORRAL DE PIEDRA, EL PISMO AND BOLSA DE CHEMISAL, AS
PER MAP OF SAID SUBDIVISION NOW ON FILE IN THE COUNTY RECORDER'S OFFICE, SAN LUIS
OBISPO COW, CALIFCRNIA, SAID P0:INT OF BEGINNING BEING DISTANTSOUTH 2g025'
WEST, 54.9 FEET ALONG M NORTHERLY LINE OF SAID LOT 29 FROM THE MOST WESTERLY
CORNER OF A TRACT OF LAND CONVEYED BY ME ARRO'A3 CRANE M. E. CHLRCH, BY DEED,
TO THE COASTSIDE CAMPMEETING ASSOCIATION, JUNE 19, 1913 AND RECORDED 1I\1 BOCK
97, PAGE 370 OF DEEDS, SAN LUIS CBISPO calNm RECORDS, AND RLINNNG THENCE FR~
SAID POINT OF EGINNING SOUTH E055' EAST, 104.2 FEET TO A POINT ON THE WESTERLY
LINE OF SAID CONEYED TRACT; MENCE SOUTH 747' EAST, 353.8 FEET ALONG THE
WESTERLY LINE CF SAID CONVEYEO TRACT TO A POINT; MWCE SOLrm 64O05' WEST, 900
FEET TO A POINT; THENCE NORTH E055' WST, 301.94 FEET TO A POINT CN ME
NORMERLY LINE OF SAID LOT 29; MENCE NCRM 2g025' WEST, 243.2 FEETALONG THE
NORMERLY LINE OF SAID LOT 29 TO THE POINTOF BEGO\IWING AND BEING A PARTOF SAID
LOT 29.
APN: 007-0 11-003
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U991120.1
Item 8.i. - Page 13
Easement Parcels: '
Real property in the Gty of Arroyo Grande, County of San Luis Obispo, State of California,
described as follows:
THAT PORTIOI\I OF LOTS 26,28 AND 29 OF THE RESUBDNISION OF THE RPNCHO CORRAL DE
PIEDRA, PISMO AND BOLSA DE CHEMISAL, IN THE CITY OF ARROYO GRANDE, CMTY OF SAN
LUIS OBISPO, STATE OF CPLIFORMA, AS SURVEYED BY R. R, HARRIS, RECORDED NOVEMBER
24, 1886 IN BOOK A PAGE 63 OF MWS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID
COUNTY, DESCRIBED AS FOLLOWS:
BEGINNING AT POT S. 75 AT THE WEST CORNER OF SAID LOT 28; THENCE WESTERLY ALONG
AN OLD FENCE ON WmERLY UNE OF SAID LOT 28, THE FOLLOWING:
(1) NORTH 28O 32' EPST, 216.2 RET TO A POINT Ifrl THE CENTERLINE PRODUCED OF A 50.00
FOOT ROAD RUNNING NORTH 54O 40' EAST AND FROM WHICH POINT A STAKE IN THE
NORTHERLY LINE OF THE SAID ROAD BEPRS NORTH 2B0 32 EAST, 56.70 FEET DISTANT;
THENCE ON THE CENTERLINE OF SAID 50,00 FOOT ROAD;
(2) NORTH 54O 40' EAST, 428.10 FEET TO A POINT FROM WHICH AN IRON POST BEARS NORTH
22" 03' WEST, 25.70 FEET DISTANT AND AN IRON POST BEARS SOUTH 81° 15' WEST, 5Sn90
FEET DISTANT;
(3) NORTH 81° 15' EAST, 394.10 FEET TO A POINT FROM WHICH AN IRON PO9 ON THE EAST
SIDE OF SAID ROAD BEARS NORTH 81° 15' EAST, 25.00 FEET DISTANT AND AN IRON POST
BEARS NORTH 36O 15' EAST, 35.35 FEET DISTANT;
(4) SOUTH 8O 45' EAST, 1025130 FEET TO AN IRON POST FROM WHICH Afrl IRON POST BEARS
NORTH 2g0 45' EAST, 40.10 FEET DISTANT; THENCE LEAVING THE (INTERLINE OF SAID
ROAD;
(5) SOUTH 290 45' wm, soao RET TO AN IRON POST;
(6) SOUTH 52O 55' WEST, 56,60 FEET TO AN IRON POST;
(7) SOUTH 08" 00' EAST, 60.60 FEET TO A 9AKE ON THE NORTHERLY SIDE OF A ROAD 70.00
FEET WIDE; THENCE PLONG THE NORTHERLY SIDE OF SAID ROAD;
(8) SOUTH 80° 17' WW, 150130 FEi3; THENCE LEAVING SAID ROAD;
(9) SOUTH 090 23' EAST, 176.60 FEET TO A STAKE IN THE NORTHERLY LINE OF THE LAND OF
W.H. RYAN: THENCE ALONG AN OLD FENCE THE GENERAL COURSE OF WHICH IS SOUTH 57O
WEST;
(10) SOUTH 57O 00' WEST, 526.90 FEET TO A STAKE:
(11) NORTH 09O 44' WEST, 188.60 FEET TO A 9AKE;
(12) SOUM 81" 24' WEST, 250,OO FEET TO A POINT IN THE (ENTER OFA 50.00 FOOT ROAD
FROM WHIM AN IRON PO9 BEARS SOUM 81" 24' WEST, 25.00 FEET DISTANT; THENCE ON
THE ENTERLINE OF THE LAST NAMED ROAD;
(13) NORTH OBO 49' WEST, 854.70 FEET TO A POINT IN THE WEST THE LINE OF SAID LOT 29
OFTHE HARRIS' RENBDIVISIONS HEREIN BEFORE NAMED, FROM WHICH A STAKE AT THE
INTERSECTION OF THE WEST LINE OF SAID ROAD WITH THE SAID LOT LINE BEARS SOUTH
28O 32' WEST, 41.20 FEET DISTANT: THENCE ALONG SAID OLD FENCE ON THE SAID LOT UNE;
(14) NORM 28" 32' EAT, 204 -90 FEET TO THE POINT OF BEGINNING.
EXCEPTING THEREFROM THAT PORTION OF LOT 29 DESCRIBED AS FOLLOWS:
BEGIMNIAlG AT 5.75 ON THE NORTHWESTERLY LINE OF SAID LOT 29; THENCE ALONG THE
NORTHWESTERLY LINE OF SAID LOT 29 SOUTH 2g0 22' WEST, 140.08 FEET TO THE TRUE
POINT OF BEGINNING; THENCE CONTINUING ALONG SAID NORTHWESTERLY LINE OF SAID
LOT 29, SOUTH 2g0 22' WEST, 161.18 FEET TO A POINT; THENCE PLONG THE
NORTHEASTERLY UNE OF THE LAND CONVEYED TO THE an OF ARROYO GRANDE BY DEED
2-m~ 71 i PAGF 267 OF nmrrnl n~r-5 360 n~' FAT 775 17 EF-
THENCE NORTH OBO 49' WEST, 446.92 RET TO THE TRUE POINT OF BEGINNING., CONVEYED
TO ALBERT A. SPIERUNG AND L. JEAN SPIERLING, AS JOINT TElJAbITS, BY DEED RECORDED
MPRCH 1, 1963 IN BOOK 1228 PAGE 256 OF OFFICIAL RECORD.
APN: 007-01 1-021 and 007-011-049
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Item 8.i. - Page 14
RBI propetty in the a y of hrp Qande, Bmty of Sa Luii Qirpo, Sate of Cdhmia
desdd ia follons:
~,R€~~~Z~NTYC(S~FE~~~BYUNCF~L<X~~ ll-ErKE
N;RTH 29'25'WI #QI)3Tl€ MXllWmLY UK CF WDLOTS 30 CN) 23 TOPE
~W~YOC(ZNRGll€PRCPERlY~TOTHE(IMCF~ROIOCRPNE
CKR& A~XXRATIO~BY CeDDAW JLF€ 19, 1913 #rDRE-ED JUY 24, 1913 IN
Bag, ~370CF~, B03RffiCFSPIDCLNl-Y; 'IFB'KE EUTH7'47'EP6T
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U9911200.1
Item 8.i. - Page 15
EXHIBIT B
DESCFUPTION OF PREMISES
to this Agreement dated , 201 -3 by and between City of Arroyo Grande,
a municipal corporation, as LESSOR, and GTE Mobilnet of Santa Barbara Limited Partnership, a
Delaware limited partnership, dba Verizon Wireless, by Cellco Partnerslip, its general partner, as
LESSEE.
Notes:
1. Lessee may replace this Exhibit with a survey of the Premises once Lessee receives it
2. The Premises shall be setback fiom the Property's boundaries as required by the applicable
authorities.
3. The access road's width will be the width required by the applicable govemmentol authorities, including police and
fire departments.
4. The type, number, mounting positions and locations of antennas and transmission lines are illustrative only. The
actual types,-numbers, mounting positions and locations may vary fYom what is shown above.
5. The locations of any utility easements are illustriitive only. The actual locations will be determined by the servicing
utility company in compliance with all local laws and regulations.
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Item 8.i. - Page 17
Item 8.i. - Page 18
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EXHIBIT "C"
SURVEY
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Item 8.i. - Page 20
EXHIBIT "Dm
INSURANCE
Prior to tlze beginning of arrd throzrgl~ozrt the duration of this Agreenrerzt, LESSEE will maintain
insur-a~rce in corljbr-nrance ~vitlz the reqzlirements set for-th below. LESSEE will me existing coverage
to comply with these reqllirentents. If that exishitg coverage does not meet the requirements set
fortlt Irere, LESSEE agrees to amend, szlpplentent or endorse tlze e~isting coverage to do so.
LESSEE aclntowledges that the insurance coverage and policy lil~zits set fortlz in this section
constittlte tlze minintum amount of coverage requir-ed.
LESSEE shall provide the follo~~irtg lypes and amourzts of insurance.
Commercial General Liability Insurance using Insurance Services Office "Commercial General
Liability" policy from CG 00 01 or the substantial equivalent. Defense costs must be paid in
addition to limits where cost is not prohibitive. There shall be no cross liability exclusion for claims
or suits by one insured against another. Limits are subject to reasonable review but in no event less
than $1,000,000 per occurrence.
Business Auto Coverage on IS0 Business Auto Coverage fiom CA 00 01 including symbol 1 (Any
Auto) or the substantial equivalent. Limits are subject to reasonable review, but in no event to be
less than $1,000,000 per accident covering owned, non-owned and hired vehicles.
Fire and Extended Coverage Insurance. LESSEE shall maintain a policy of standard fire and
extended coverage insurance on its improvements to the Premises.
Workers Compensation on a state-approved policy form providing statutory benefits as required by
law with employer's liability limits no less than $1,000,000 per accident or disease per employee.
Excess or Umbrella Liability Insurance (Over Primary) if used to meet limit requirements, shall
provide coverage at least as broad as specified for the underlying coverages. Any such coverage
provided under an umbrella liability policy shall include a drop down provision providing primary
coverage above a maximum $25,000 self-insured retention for liability not covered by primary but
covered by the umbrella Coverage shall be provided on a "pay on behalf' basis, with defense costs
payable in addition to policy limits. Policy shall contain a provision obligating insurer at the time
insured's liability is determined, not requiring actual payment by the insured hrst There shall be no
cross liability exclusion precluding coverage for claims or suits by one insured against another.
Coverage shall be applicable to LESSOR for injury to employees of LESSEE unless caused by the
negligence or willhl misconduct of LESSOR. The scope of coverage provided is subject to
approval of LESSOR following receipt of proof of insurance as required herein. Limits are subject
to review but in no event less than $1,000,000 per occurrence.
I~zszlrnnce pronn.edpurszlant to tlzese I-equirenterz~ shall be written by insurer tlrat are admitted or.
licertsed carriers in tlte state Calijbrriia and ~vitlz an A.M. Bests I-ating of A- or better and a
ntinintzlm firtarzcial size Y71.
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U9911200.1
Item 8.i. - Page 21
General conditions pertaining to provision of insurance coverage by LESSEE. LESSEE and
LESSOR agree to the following with respect to irisurance provided by LESSEE:
1. LESSEE agrees to have its insurer endorse the third party general liability coverage
required herein to include as additional insureds City, its officials employees and agents, using
standard IS0 endorsement No. CG 201 0 with an edition prior to 1992 or its substantial equivalent.
2. 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 Premises or to the Property,
resulting from any fire, or other casualty of the kind covered by standard fire insurance policies with
extended coverage, regardless of whether or not, or in what amounts, such insurance is now or
hereafter carried by the Parties, or either of tl~ern. 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
Premises or the Property shall waive the insurer's right of subrogation against the other Party.
3. All coverage types and limits required are subject to approval, modification and
additional reasonable requirements by LESSOR, as the need arises. LESSEE shall not make any
major reductions in scope of coverage (e-g. elimination of contractual liability or reduction of
discovery period) that may affect LESSOR's protection without LESSOR's prior written consent,
which consent shall not be unreasonably withheld, conditioned or delayed.
4. Proof of compliance with these insurance requirements, consisting of certificates of
insurance evidencing all of the coverages required and a blanket additional insured endorsement to
LESSEE'S general liability policy, shall be delivered to LESSOR at or prior to the execution of this
Agreement. Ji the event such proof of any insurance is not delivered as required, or in the event
such insurance is canceled at any time and no replacement coverage is provided, LESSOR has the
right, but not the duty, upon ten (1 0) days prior written notice to LESSEE to obtain any insurance it
deems necessary to protect its interests under this or any other agreement and to pay the premium.
Any premium so paid by LESSOR shall be charged to and promptly paid by LESSEE or deducted
fiom sums due LESSEE, at LESSOR's option.
5. It is acknowledged by the Parties of this Agreement that all insurance coverage
required to be provided by LESSEE is intended to apply first and on a primary, noncontributing
basis in relation to any other insurance or self insurance available to LESSOR as relates to LESSEE
operations.
6. LESSOR, in LESSOR's reasonable discretion, reserves the right at any time during
the term of the Agreement to change the amounts and types of insurance required by giving
LESSEE ninety (90) days advance written notice of such change. If such change results in
substantial additional cost to LESSEE, LESSOR will negotiate additional compensation
proportional to the increase benefit to-LESSOR.
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U9911100.1
Item 8.i. - Page 22
7. LESSEE will renew the required coverage accordingly, as long as LESSOR, or its
employees or agents face an exposure fiom operations of any type pursuant to this agreement. This
obligation applies whether or not the agreement is canceled or terminated for any reason.
Termination of this obligation is not effective until LESSOR executes a written statement to that
effect.
8. LESSEE or its insurer shall provide LESSOR with tlmty (30) days notice of any
cancellation of coverage. LESSEE shall provide proof that policies of insurance required herein
expiring during the term of this Agreement have been renewed or replaced with other policies
providing at least the same coverage. Proof via a certificate of insurance that such coverage has
been ordered shall be submitted within ten (10) business days of expiration without lapse in
coverage. A coverage binder or letter from LESSEE'S insurance agent to this effect is acceptable.
A certificate of insurance andlor additional insured endorsement as required in these specifications
applicable to the renewing or new coverage must be provided to LESSOR within ten (10) business
days of the expiration of the coverages.
9. rile provisions of any workers' compensation or similar act will not limit the
obligations of LESSEE under this agreement. LESSEE expressly agrees not to. use any statutory
immunity defenses under such laws with respect to LESSOR, its employees, officials and agents.
10. Requirements of specific coverage features or limits contained in this section are not
intended as limitations on coverage, limits or other requirements nor as a waiver of any coverage,
normally provided by any given policy. Specific-reference to a given coverage feature is for
purposes of clarification only as it pertains to a given issue, and is not intended by any party or
insured to be limiting or all-inclusive.
11. These insurance requirements are intended to be separate and distinct fiom any other
provision in this agreement and are intended by the Parties here to be interpreted as such.
12. The requirements in this Section supersede all other sections and provisions of this
Agreement to the extent that any other section or provision conflicts with or impairs the provisions
of this Section.
13. LESSEE agrees to be responsible for ensuring that no contract used by any party
involved in any way with the project reserves the right to charge LESSOR or LESSEE for the cost
of additional insurance coverage required by this agreement. Any such provisions are to be deleted
with reference to LESSOR. It is not the intent of LESSOR to reimburse any third party for the cost
of complying with these requirements. There shall be no recourse against LESSOR for payment of
premiums or other amounts with reseect thereto.
14. LESSEE agrees to provide immediate notice to LESSOR of any claim or loss against
LESSEE arising out of the work performed under this agreement. LESSOR assumes no obligation.
or liability by such notice, but has the right (but not the duty) to monitor the handling of any such
claim or claims if they are likely to involve LESSOR.
18
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