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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. Hwy 101 6 Bmnch U991 l200.1 Item 8.i. - Page 3 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 2 Hay 101 & Bnncb U9911100.1 Item 8.i. - Page 4 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 Hwy 101 6 Bmch U9911200.1 Item 8.i. - Page 5 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 Hwy 101 6: Branch U9911200.1 Item 8.i. - Page 6 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, Hwy LO1 G: Bmch U9911200.1 Item 8.i. - Page 7 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 6 Hwy 101 6: Bmcb U9911200.1 Item 8.i. - Page 8 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 Huy 101 & Bmch U9911100.I Item 8.i. - Page 9 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 8 Hwy 101 & Bmcb U9911200.1 Item 8.i. - Page 10 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 Hay 101 6 Bmch 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 Hwy 101 A! Bnnch 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 Hwy 101 B Bmch U99 11100. I 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 Hwy 101 C Bnncb 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. Hwy 101 6: Bmch U9911200.1 Item 8.i. - Page 16 Item 8.i. - Page 17 Item 8.i. - Page 18 It e m 8 . i . - P a g e 1 9 EXHIBIT "C" SURVEY Hwy 101 &Branch U9911200.1 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. Hwy 101 & Bnoch 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. Hay 10 1 6 Branch 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 Hwy 101 &Branch U9911200.1 Item 8.i. - Page 23 THIS PAGE INTENTIO NALLY LEFT BLANK Item 8.i. - Page 24