CC 2017-11-28_09f Water Tank Lease Agreement
MEMORANDUM
TO: CITY COUNCIL
FROM: HEATHER K. WHITHAM, CITY ATTORNEY
SUBJECT: CONSIDERATION OF APPROVAL OF WATER TANK LEASE
AGREEMENT WITH VERIZON WIRELESS- 459 PUESTA DEL SOL
(RESERVOIR #5)
DATE: NOVEMBER 28, 2017
SUMMARY OF ACTION:
Approval of Water Tank Lease Agreement with Verizon Wireless for property located at
459 Puesta Del Sol.
IMPACT ON FINANCIAL AND PERSONNEL RESOURCES:
Verizon will pay the City rent of $2,500 per month, which will be increased each year by
an amount equal to 3% of the rent for the previous year. Verizon will also pay a one-
time total of $5,000 as a contribution towards the already completed painting of the
water tank, and a one-time administrative review and processing fee of $2,000.
RECOMMENDATION:
It is recommended that the City Council approve and authorize the Mayor to execute a
Water Tank Lease Agreement and Memorandum of Lease between the City and
AirTouch Cellular, dba Verizon Wireless (“Verizon”) for use of approximately 360 square
feet of property located at 459 Puesta Del Sol, Arroyo Grande and space on the City’s
water tank for use as a wireless communication facility.
BACKGROUND:
The City owns land located at 459 Puesta Del Sol, Arroyo Grande, and maintains a
water tank (Reservoir #5) at that location. Verizon expressed an interest in leasing a
portion of the property for a wireless communications facility (“Lease Site”). After
lengthy negotiations, the parties drafted the attached Water Tank Lease Agreement
(“Lease”) for an approximately 360 square foot portion of land and space on the City’s
water tank at the Lease Site. The term of the Lease is for five years with four additional
five-year extensions.
ANALYSIS OF ISSUES:
The City currently has nine cell site leases with various telecommunication providers.
The monthly rent averages approximately $2,300. In conducting an informal survey of
Item 9.f. - Page 1
CITY COUNCIL
CONSIDERATION OF APPROVAL OF WATER TANK LEASE AGREEMENT WITH
VERIZON WIRELESS- 459 PUESTA DEL SOL (RESERVOIR #5)
NOVEMBER 28, 2017
PAGE 2
cell site rates in the County, the $2,500 per month negotiated with Verizon appears to
be comfortably within current market rates.
Verizon’s application for a Conditional Use Permit to operate the proposed facility was
approved by the Planning Commission on July 5, 2016. Prior to the 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.
ALTERNATIVES:
The following alternatives are provided for City Council consideration:
1. Approve the recommendation;
2. Do not approve the recommendation; or
3. Provide alternative direction.
ADVANTAGES:
Approval of the Lease will result in annual General Fund revenue of $30,000, which
amount shall increase annually by 3%. In addition, the City will receive a $5,000
contribution for the painting of the tank and a $2,000 reimbursement for administrative
and processing costs. The additional telecommunication facility should also provide
enhanced cell phone service within the area.
DISADVANTAGES:
No disadvantages have been identified.
ENVIRONMENTAL REVIEW:
No environmental review is required for the approval of the Water Tank Lease
Agreement.
PUBLIC NOTIFICATION AND COMMENTS:
The Agenda was posted at City Hall and on the City’s website in accordance with
Government Code Section 54954.2.
Item 9.f. - Page 2
SITE NAME: RANCHO & JAMES
SITE NUMBER: 295265
ATTY/DATE: LAB/11.14.2017
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WATER TANK LEASE AGREEMENT
This Water Tank Lease 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 Street, Arroyo Grande, California
93420, Tax ID #95-6000-668, hereinafter designated LESSOR, and AirTouch Cellular Inc., a
California corporation, d/b/a Verizon Wireless, 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 "Property"), with an address of 459 Puesta
Del Sol, Arroyo Grande, California 93420, commonly known as Reservoir #5, which property is
more particularly described in Exhibit "A" attached hereto and made a part hereof, also known as
assessor's parcel number (“APN”) 007-890-043 recorded in the Office of the County Recorder of
the County of San Luis Obispo. LESSOR is the owner of a water tank (the “Tank”) located on the
Property. LESSOR hereby leases to LESSEE: (i) a parcel of ground space measuring
approximately fifteen feet (15’) by twenty-four feet (24’) for LESSEE’s equipment shelter and base
station equipment (the “Land Space”); and (ii) space on the Tank sufficient for LESSEE’s antennas
and appurtenant equipment (the “Tank Space”); together with the non-exclusive right for ingress
and egress, seven (7) days a week twenty-four (24) hours a day, on foot or motor vehicle, including
trucks, and for the installation and maintenance of utility wires, cables, and conduits, under, a
twelve foot (12’) wide right-of-way (the “Access Right-of-Way”) extending from the nearest public
right-of-way, Puesta Del Sol, across the Property to the Land Space and Tank Space; and a five foot
(5’) wide utility right-of-way (the “Utility Right-of-Way”) for the installation and maintenance of
utility wires, cables, and conduits, from a utility point of connection on the Property to the Land
Space and from the Land Space to the Tank Space. The Land Space, Tank Space, Access Right-of-
Way and Utility Right-of-Way are hereinafter collectively referred to as 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 shall 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. This Agreement shall be effective as of the 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 forty-five (45) days of the Commencement Date, LESSEE shall pay
to LESSOR a one-time Premises preparation fee of Five Thousand Dollars ($5,000.00) as a
contribution towards the painting of the Tank located on the Premises.
(b) Beginning upon the Commencement Date, LESSEE shall pay to LESSOR
Two Thousand Five Hundred Dollars ($2,500.00) per month (“Rent”). The initial Rent payment
shall be payable within forty-five (45) days after the Commencement Date, and each subsequent
Rent payment shall be payable on the first (1st) day of each month. Rent for any fractional month
at the end of the term or renewal terms shall be prorated. Rent shall be payable to LESSOR at City
of Arroyo Grande, 300 East Branch Street, Arroyo Grande, CA 93420; Attention: Administrative
Services Director.
(c) Rent shall 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 (15th) 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 Agreement.
(f) LESSOR hereby agrees to provide to LESSEE certain documentation (the
“Rental Documentation”) evidencing LESSOR’s interest in, and right to receive payments under,
this Agreement, including without limitation: (i) documentation, acceptable to LESSEE in
LESSEE’s reasonable discretion, evidencing LESSOR’s good and sufficient title to and/or interest
in the Property and right to receive rental payments and other benefits hereunder; (ii) a complete
and fully executed Internal Revenue Service Form W-9, or equivalent, in a form acceptable to
LESSEE, for any party to whom rental payments are to be made pursuant to this Agreement; and
(iii) other documentation requested by LESSEE in LESSEE’s reasonable discretion. From time to
time during the Term of this Agreement and within thirty (30) days of a written request from
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LESSEE, LESSOR agrees to provide updated Rental Documentation in a form reasonably
acceptable to LESSEE. The Rental Documentation shall be provided to LESSEE in accordance
with the provisions of and at the address given in Paragraph 17. Delivery of Rental Documentation
to LESSEE shall be a prerequisite for the payment of any rent by LESSEE and notwithstanding
anything to the contrary herein, LESSEE shall have no obligation to make any rental payments until
Rental Documentation has been supplied to LESSEE as provided herein.
Within fifteen (15) days of obtaining an interest in the Property or this Agreement,
any assignee(s) or transferee(s) of LESSOR shall provide to LESSEE Rental Documentation in the
manner set forth in the preceding paragraph. From time to time during the Term of this Agreement
and within thirty (30) days of a written request from LESSEE, any assignee(s) or transferee(s) of
LESSOR agrees to provide updated Rental Documentation in a form reasonably acceptable to
LESSEE. Delivery of Rental Documentation to LESSEE by any assignee(s) or transferee(s) of
LESSOR shall be a prerequisite for the payment of any rent by LESSEE to such party and
notwithstanding anything to the contrary herein, LESSEE shall have no obligation to make any
rental payments to any assignee(s) or transferee(s) of LESSOR until Rental Documentation has
been supplied to LESSEE as provided herein.
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 fully informed of all applicable Federal,
State and local rules and regulations. LESSEE shall, at its sole cost and expense, install a daisy
chain locking mechanism on LESSOR’s gate at the entrance of the Property. Once installed by
LESSEE in a good and workmanlike manner, the locking mechanism shall become the personal
property of LESSOR. 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 obtaining 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. LESSOR has reviewed the plans attached
hereto as Exhibit “B,” and LESSOR approves the site design of LESSEE's initial installation at the
Premises as described and depicted therein. LESSEE shall have the right to replace, repair, add or
otherwise modify its equipment or any portion thereof, whether the equipment is specified or not on
any exhibit attached hereto, during the term 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. To the extent any portion of the Property is damaged due to any of LESSEE’s and/or its
employees’, agents’, or contractors’ activities on the Property outside the ordinary use of the
Premises, LESSEE shall, at its own cost and expense, repair such damage and restore the Property
to as good a condition as before such cause of damage occurred, reasonable wear and tear and
casualty damage 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 permits required by the City of Arroyo Grande which
will permit LESSEE use of the Premises as set forth above. LESSOR shall cooperate with LESSEE
in its effort to obtain such approvals. In the event that any Governmental Approvals should be
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finally rejected or any Governmental Approval issued to LESSEE is canceled, revoked, expires,
lapses, or is otherwise withdrawn or terminated by any 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 of 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 further 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, which LESSOR demonstrates are attributable to LESSEE's communications
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 rent, any increase in real property taxes levied against the Property which LESSOR
demonstrates 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
harmless from 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 rights under this Agreement, the compliant Party will have the right after
thirty (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 indemnify, defend, keep and save harmless LESSOR, and its directors, officials, officers,
agents and 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 occurred, from any cause or causes whatsoever (collectively, "Claims"), to
the extent resulting from 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.
Notwithstanding 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.
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(b) Insurance. LESSEE shall maintain prior to the beginning of and for the
duration of this Agreement insurance coverage as specified in Exhibit “D” attached hereto and
incorporated herein as though set forth in full.
9. ANNUAL TERMINATION. Notwithstanding anything to the contrary contained
herein, and provided LESSEE is not in default hereunder beyond applicable 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 this 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 and/or 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.
(b) 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 permit 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 anything herein to the contrary, in the event LESSOR fails
to comply with this Section 10, LESSEE's sole remedy is to terminate this Agreement.
11. REMOVAL UPON TERMINATION/HOLDOVER.
(a) Removal Upon Termination: LESSEE, upon termination of this Agreement,
shall, within ninety (90) days, remove its building(s), antenna installation(s) (including footings),
fixtures and all personal property and otherwise restore the Premises to its original condition,
reasonable wear and tear and casualty damage excepted. LESSOR agrees and acknowledges that all
of the equipment, fixtures and personal property of LESSEE shall 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 existing monthly rate or on the existing monthly pro-rata basis if based upon a
longer payment term, until such time as the removal of the building, antenna structure, fixtures and
all personal property are completed.
(b) Holdover: LESSEE has no right to retain possession of the Premises or any
part thereof beyond the expiration of that removal period set forth in Subparagraph 11(a) above,
unless the Parties are negotiating a new lease or lease extension in good faith. In the event that the
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Parties are not in the process of negotiating a new lease or lease extension in good faith, LESSEE
holds over in violation of Subparagraph 11(a) and this Subparagraph 11(b), then the rent then in
effect payable from and after the time of the expiration or earlier removal period set forth in
Subparagraph 11(a) shall be equal to the rent applicable during the month immediately preceding
such expiration or earlier termination.
12. RIGHT OF FIRST REFUSAL/RIGHTS UPON SALE.
(a) Right of First Refusal: If LESSOR elects, during the Term to grant to a third
party by easement or other legal instrument an interest in and to that portion of the Tank and/or
Property occupied by LESSEE for the purpose of operating and maintaining communications
facilities or the management thereof, with or without an assignment of this Agreement to such third
party, LESSEE shall have the right of first refusal to meet any bona fide offer of transfer on the
same terms and conditions of such offer. If LESSEE fails to meet such bona fide offer within thirty
(30) days after written notice thereof from LESSOR, LESSOR may grant the easement or interest in
the Property or portion thereof to such third person in accordance with the terms and conditions of
such third party offer.
(b) Rights Upon Sale: Should LESSOR, at any time during the term of this
Agreement, decide to sell all or any part of the Property or Tank 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 the Rent
and performing the 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 Tank and has full authority to enter into and execute this Agreement.
LESSOR further covenants that there are no other liens, judgments or impediments of title on the
Property or Tank or affecting LESSOR'S title to the same and that there are no covenants,
easements or restrictions which prevent the use of the 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, promises 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 this Agreement shall not waive such rights and such Party shall
have the 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. ASSIGNMENT. 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
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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
communication towers of LESSEE in the market defined by the FCC in which the Property is
located. As to other parties, this Agreement may not be sold, assigned or transferred without the
written consent of LESSOR, which consent shall not be unreasonably withheld, conditioned or
delayed.
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 further that it guarantees delivery to the
addressee by the end of the next business day following the courier's receipt from the sender,
addressed as follows (or any other address that the Party to be notified may have designated to the
sender by like notice).
LESSOR: City Mana ger, City of Arroyo Grande
300 East Branch Street
Arroyo Grande, California 93420
LESSEE: AirTouch Cellular Inc.
dba Verizon Wireless
180 Washington Valley
Bedminster, New Jersey 07921
Attention: Network Real Estate
(Site: Rancho & James)
Notice shall be effective upon actual receipt or refusal as shown on the receipt obtained pursuant to
the foregoing.
18. 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 from
time to time may encumber all or part of the Property or right-of-way, provided, however, every
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 form. In the event LESSOR defaults in
the payment and/or other performance of any mortgage or other security interest encumbering the
Property or Tank, 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.
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20. RECORDING. LESSOR agrees to execute a Memorandum of this Tank Lease
Agreement which LESSEE may record with the appropriate Recording Officer. The date set forth in
the Memorandum is for recording purposes only and bears no reference to commencement of either
term or rent payments.
21. DEFAULT; REMEDIES.
(a) Default. In the event there is a breach 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 breach. After receipt of such written notice, LESSEE
shall have fifteen (15) days in which to cure any monetary breach and thirty (30) days in which to
cure any non-monetary breach, provided LESSEE shall have such extended period as may be
required beyond the thirty (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 thirty (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 failed to
cure the breach within the time periods provided in this Paragraph.
In the event there is a breach by LESSOR with respect to any of the provisions of
this Agreement or its obligations under it, LESSEE shall give LESSOR written notice of such
breach. After receipt of such written notice, LESSOR shall have thirty (30) days in which to cure
any such breach, provided LESSOR shall have such extended period as may be required beyond the
thirty (30) days if the nature of the cure is such that it reasonably requires more than thirty (30) days
and LESSOR commences the cure within the thirty (30) day period and thereafter continuously and
diligently pursues the cure to completion. LESSEE may not maintain any action or effect any
remedies for default against LESSOR unless and until LESSOR has failed to cure the breach within
the time periods provided in this Paragraph.
(b) Remedies. Upon a default, the non-defaulting Party may at its option (but
without obligation to do so), perform the defaulting Party’s duty or obligation on the defaulting
Party’s behalf, including but not limited to the obtaining of reasonably required insurance policies.
The costs and expenses of any such performance by the non-defaulting Party shall be due and
payable by the defaulting Party upon invoice therefor. In the event of a default by either Party with
respect to a material provision of this Agreement, without limiting the non-defaulting Party in the
exercise of any right or remedy which the non-defaulting Party may have by reason of such default,
the non-defaulting Party may terminate the Agreement and/or pursue any remedy now or hereafter
available to the non-defaulting Party under the Laws or judicial decisions of the state in which the
Premises are located; provided, however, the non-defaulting Party shall use reasonable efforts to
mitigate its damages in connection with a default by the defaulting Party.
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, with the exception of sodium
hypochlorite, which is part of the chlorine injection system at the Tank. 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, with the
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exception of sodium hypochlorite. 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/diesel/gasoline, HVAC system, and a halon/FM200 fire
suppression system and that the use and maintenance of such items shall not constitute a violation
or breach of this paragraph. LESSEE shall be responsible for and shall indemnify and hold harmless
LESSOR from 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 other casualty so that such damage may reasonably be expected to
disrupt LESSEE's operations at the Premises for more than forty-five (45) days, then LESSEE may
at any time following such fire or other casualty, provided LESSOR has not completed the
restoration required to permit LESSEE to resume its operation at the Premises, terminate this Lease
upon fifteen (15) days written notice to LESSOR. Any such notice of termination shall cause this
Lease to expire with the same force and effect as though the date set forth in such notice were the
date originally set as the expiration date of this 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 fire
or other casualty.
24. CONDEMNATION. In the event of any condemnation of the Property, LESSEE
may terminate this 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 the same force and effect as though the date set forth in such
notice were the date originally set as the expiration date of this 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 an 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 and 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.
Item 9.f. - Page 11
Rancho & James 10
94247548_3
27. SURVIVAL. 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
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. GOVERNING 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.
31. ATTORNEY FEES AND COSTS. The prevailing Party in any legal claim 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.
33. INTERPRETATON.
(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) "includes"
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 LIABILITY OF OFFICIALS AND EMPLOYEES OF EITHER.
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.
Item 9.f. - Page 12
Rancho & James 11
94247548_3
35. PUBLIC DOCUMENT. LESSOR is a municipal corporation under the laws of the
State of California. LESSOR and LESSEE acknowledge that this Lease Agreement is subject to
public disclosure as specified by California Government Code § 6250 et seq. and is a “public
record” within the meaning of California Government Code § 6252(e).
36. NO ASSURANCES. Execution of this Lease is completely unrelated to any and all
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
communications facility which shall be reviewed pursuant to prevailing requirements at that time.
37. TANK COMPLIANCE. LESSOR covenants that it will keep the Tank in good
repair as required by all applicable laws. No materials may be used in the installation of the antennas
or transmission lines that will cause corrosion or rust or deterioration of the Tank structure or its
appurtenances. LESSEE agrees that it shall not commence any work requiring Tank penetrations
without LESSOR’s prior written consent. All antenna(e) on the Tank must be identified by a marking
on the Tank and all transmission lines are to be tagged at the conduit opening where it enters any
user's equipment space.
[SIGNATURES APPEAR ON THE FOLLOWING PAGE]
Item 9.f. - Page 13
Rancho & James 12
94247548_3
IN WITNESS WHEREOF, the Parties have caused this Agreement to be effective as of the
last date written below.
"LESSOR"
CITY OF ARROYO GRANDE
______________________________
JIM HILL, Mayor
Date:__________________________
ATTEST:
______________________________
KELLY WETMORE, City Clerk
APPROVED AS TO FORM:
______________________________
HEATHER K. WHITHAM, City Attorney
"LESSEE"
AirTouch Cellular Inc., a California corporation, d/b/a
Verizon Wireless
By:
Print Name: _______________________
Its: ______________________________
Date:
Item 9.f. - Page 14
Rancho & James Exhibit “A”
94247548_3
EXHIBIT “A”
DESCRIPTION OF PROPERTY
to this Agreement dated ________________, 201___, by and between City of Arroyo Grande,
a municipal corporation, as LESSOR, and AirTouch Cellular Inc., a California corporation, d/b/a
Verizon Wireless as LESSEE
The Property: Real property in the unincorporated area of the County of SAN LUIS OBISPO, State of
California, described as follows:
Item 9.f. - Page 15
Rancho & James Exhibit “B”
94247548_3
EXHIBIT “B”
DESCRIPTION OF PREMISES
to this Agreement dated ________________, 201___, by and between City of Arroyo Grande,
a municipal corporation, as LESSOR, and AirTouch Cellular Inc., a California corporation, d/b/a
Verizon Wireless, as LESSEE.
[SEE ATTACHED]
Notes:
1. Lessee may replace this Exhibit with a survey of the Premises once Lessee receives it.
2. The Premises shall be setback from the Property’s boundaries as required by the applicable governmental
authorities.
3. The access road’s width will be the width required by the applicable governmental 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 from what is shown above.
5. The locations of any utility easements are illustrative only. The actual locations will be determined by the servicing
utility company in compliance with all local laws and regulations.
Item 9.f. - Page 16
Item 9.f. - Page 17
WIRELESS
C IC.
5015 SHOREHAM PLACE, STE. 150
SAN DIEGO, CA 92122
www.sacw.com
619.736.3766
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2785 MITCHELL DRIVE, BLDG 9
WALNUT CREEK, CA 94598
...... . , . . . . � . . . . : .. ·· .. '•, .... . ·. :· . ... ··,·-.
NEW VERIZON WIRELESS --�
ANTENNA LEASE AREAS (TYP.),
3'-6" X 7'-6" (±26.25 S.F.) each
NEW VERIZON WIRELESS
CABLE TRAY ROUTE
EXISTING
WATER TANK
. :· .... · •. : ... : . · .... :: .....
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RANCHO & JAMES
PSL#295265
459 PUESTA DEL SOL
ARROYO GRANDE, CA 93420
DRAWN BY: OM
CHECKED BY: NB
DATE: 10/23/17
DRAWING:
LEASE EXHIBIT (8)
@
NORTH Item 9.f. - Page 18
Rancho & James Exhibit “C”
94247548_3
EXHIBIT “C”
SURVEY
[SEE ATTACHED]
Item 9.f. - Page 19
Item 9.f. - Page 20
Item 9.f. - Page 21
Rancho & James Exhibit “D”
94247548_3
EXHIBIT “D”
INSURANCE
Prior to the beginning of and throughout the duration of this Agreement, LESSEE will maintain
insurance in conformance with the requirements set forth below. LESSEE acknowledges that the
insurance coverage and policy limits set forth in this section constitute the amount of coverage
required.
LESSEE shall provide the following types and amounts of insurance:
Commercial General Liability Insurance in the amount of $2,000,000 per occurrence for bodily
injury and property damage and $2,000,000 general aggregate including cross liability for claims or
suits by one insured against another.
Commercial Automobile Liability covering all owned, non-owned and hired vehicles with a
combined single limit of $2,000,000 each accident for bodily injury and property damage.
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 in compliance with the statutory requirements of the state of operation with
employer’s liability limits of $1,000,000 each accident; $1,000,000 disease each employee;
$1,000,000 disease policy limit.
Insurance procured pursuant to these requirements shall be written by insurers that are admitted or
licensed carriers in the state of California and with an A.M. Bests rating of A- or better and a
minimum financial size VII.
General conditions pertaining to provision of insurance coverage by LESSEE. LESSEE and
LESSOR agree to the following with respect to insurance provided by LESSEE:
1. LESSEE agrees to include LESSOR, its officials and employees as an additional
insured as their interest may appear under this Agreement on the general and automobile liability
coverage required by this Agreement.
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 them. 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, and upon notice to
and acceptance by LESSEE, reasonable modification and additional reasonable requirements by
LESSOR, as the need arises.
Item 9.f. - Page 22
Rancho & James Exhibit “D”
94247548_3
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 the execution of this
Agreement.
5. It is acknowledged by the Parties of this Agreement that all insurance coverage
required to be provided by LESSEE is intended to apply 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 and upon notice to and acceptance by
LESSEE, reserves the right 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.
7. LESSEE will renew the required coverage accordingly, as long as LESSOR faces an
exposure from operations of any type pursuant to this Agreement.
8. 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
certificate of insurance and blanket 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. The 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, or officials.
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 from 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 provide, as soon as practicable, 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.
Item 9.f. - Page 23
Rancho & James
66069104.2 1
Upon Recording, Return to:
McGuireWoods LLP
1800 Century Park East, 8th Floor
Los Angeles, CA 90067
Attn: Lindsay A. Barstow, Esq.
Re: Rancho & James
_____________________________________________________________________________________
(Space above line for Recorder’s Use)
DTT = $0.00; Guaranteed lease term less than 35 years
No Prior Recordings
STATE OF CALIFORNIA )
)
COUNTY OF SAN LUIS OBPISPO )
)
APN: 007-890-043 )
MEMORANDUM OF WATER TANK LEASE AGREEMENT
This MEMORANDUM OF WATER TANK LEASE AGREEMENT (“Memorandum”)
is made as of the date of last execution below by and between the City of Arroyo Grande, a
municipal corporation of the State of California, with its mailing address located at 300 East
Branch Street, Arroyo Grande, California 93420, hereinafter designated LESSOR, and AirTouch
Cellular Inc., a California corporation, d/b/a Verizon Wireless, with an address for notices at 180
Washington Valley Road, Bedminster, New Jersey 07921, Attn: Network Real Estate, (Site:
Rancho & James), hereinafter designated LESSEE. LESSOR and LESSEE are at times
collectively referred to hereinafter as the “Parties” or individually as the “Party.”
1. LESSOR and LESSEE entered into an unrecorded Water Tank Lease Agreement (the
“Agreement”) on ____________________, 201__, which lease shall be for an initial term
of five (5) years, commencing on the Commencement Date (defined hereinafter), and
shall automatically be extended for four (4) additional five (5) year terms unless LESSEE
terminates it at the end of the then current term. The total term of the Agreement is less
than thirty-five (35) years.
2. LESSOR shall lease to LESSEE a portion of land space and space on that certain water
tank located on the real property legally described in Exhibit “A” attached hereto and
incorporated herein (the entirety of LESSOR’s property is referred to hereinafter as the
“Property”), said portion being substantially described and depicted in the Agreement,
together with the non-exclusive right for ingress and egress, seven (7) days a week
twenty-four (24) hours a day, on foot or motor vehicle, including trucks over or along
rights-of-way extending from demised premises to the nearest public right-of-way, and for
the installation and maintenance of utility wires, poles, cables, conduits, and pipes over,
under, or along one or more rights-of-way, all being as described and depicted in the
Agreement.
Item 9.f. - Page 24
Rancho & James
66069104.2 2
3. The Commencement Date of the Agreement, of which this is a Memorandum, is as set
forth therein.
4. If LESSOR elects during the initial term or any extension term of the Agreement to sell
or to grant a third party by easement or other legal instrument an interest in and to that
portion of the Property occupied by LESSEE for the purpose of operating and
maintaining communications facilities or the management thereof, LESSEE shall have
the right of first refusal to meet any such bona fide offer.
5. The terms, covenants and provisions of the Agreement, the terms of which are hereby
incorporated by reference into this Memorandum, shall extend to and be binding upon the
respective executors, administrators, heirs, successors and assigns of LESSOR and
LESSEE.
[SIGNATURES APPEAR ON THE FOLLOWING PAGE]
Item 9.f. - Page 25
Rancho & James
66069104.2 3
IN WITNESS WHEREOF, LESSOR and LESSEE have caused this Memorandum to be
duly executed on the date last written below.
"LESSOR"
CITY OF ARROYO GRANDE
______________________________
JIM HILL, Mayor
Date:__________________________
ATTEST:
______________________________
KELLY WETMORE, City Clerk
APPROVED AS TO FORM:
______________________________
HEATHER K. WHITHAM, City Attorney
"LESSEE"
AirTouch Cellular Inc., a California corporation,
d/b/a Verizon Wireless
By:
Print Name: _______________________
Its: _____ ________________________
Date:
Item 9.f. - Page 26
Rancho & James
66069104.2 4
LESSOR ACKNOWLEDGMENT
A Notary Public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the truthfulness,
accuracy, or validity of that document.
STATE OF _________________ )
)
COUNTY OF _______________ )
On ____________________, 201__, before me, ___________________________, Notary
Public, personally appeared _____________________________, who proved to me on the basis of
satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument
and acknowledged to me that he/she/they executed the same in his/her/their authorized
capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity
upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
____________________________________
Notary Public
Place Notary Seal Above
Item 9.f. - Page 27
Rancho & James
66069104.2 5
LESSEE ACKNOWLEDGMENT
A Notary Public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the truthfulness,
accuracy, or validity of that document.
State of California )
)
County of _______________ )
On __________________, 201__, before me, _____,
Notary Public, personally appeared _______________________________, who proved to me on
the basis of satisfactory evidence to be the person whose name is subscribed to the within
instrument and acknowledged to me that he executed the same in his authorized capacity, and that
by his signature on the instrument the person, or the entity upon behalf of which the person acted,
executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
_____________________________
Signature of Notary Public
Place Notary Seal Above
Item 9.f. - Page 28
EXHIBIT A
[LEGAL DESCRIPTION OF PROPERTY]
Item 9.f. - Page 29
THIS PAGE INTENTIONALLY LEFT BLANK
Item 9.f. - Page 30