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Home My WebLink AboutD-1667 2100 Slack Street Recorded 10/27/2005r J LI LI E ROE LD San Luis Obispo County — Clerk/Recorder Recording Requested By: Recorded at the requ t of Public GTE Mobilnet of Santa Barbara Limited Part D 0 C # : 2005090598 d/b /a Verizon Wireless 180 Washington Valley Road Bedminster, New Jersey 07921 Attention: Network Real Estate (Re: SLO Foothill Cell Site) When Recorded Please Return to: City Clerk City of San Luis Obispo 990 Palm Street San Luis Obispo, Ca 93401 CONSENT TO COMMON USE AGREEMENT LO 10/27/2005 10 :03 AM Titles: 1 Pages: 10 Fees 34.00 Taxes 0.00 Others _ 0.00 PAID $34.00 THIS CONSENT TO COMMON USE AGREEMENT ( "Agreement ") is made and entered into in the City of San Luis Obispo on thisz✓ �day of IJOVYyE1 2004, by and among the City of San Luis Obispo, a municipal corporation ( "City "),.GTE Mobilnet of Santa Barbara Limited Partnership d/b /a Verizon Wireless ( "Verizon Wireless "), and Scott D. Stimson and Barbara M. Stimson, husband and wife, as joint tenants whose address is 2100 Slack Street, San Luis Obispo ( "Owners "). WITNESSETH: WHEREAS, Owners own that certain parcel of property located at 2100 Slack. Street, San Luis Obispo, California, as is more particularly described on Exhibit "A" attached hereto and incorporated herein by this reference (the entirety of Owner's property is hereinafter referred to as the "Property "). WHEREAS, the City has acquired an interest to certain rights of way and easements on the Property (collectively referred to as the "City Easements "), and described as follows: 1. An easement for the purpose of construction of a water tank and waterline as shown on record of survey map recorded April 9, 1956 in Book 8, at Page 8, of Record Survey. 2. An easement for street and utility purposes as recorded September 7, 1978, in Book 2098, at Page 632, of Official Records. WHEREAS, pursuant to that certain Option and Lease Agreement dated March 4, 2004 (the "Lease "), Verizon Wireless secured from Owners a leasehold interest on a portion of the SLO Foothill 1 569818.5 M I40 Property more particularly described in the Lease (the "Premises ") for the purpose of constructing, operating and maintaining a communications facility. WHEREAS, Verizon Wireless' Premises is partially located on a portion of the City Easements as shown on Exhibit "B" attached hereto and made a part hereof. WHEREAS, to access the Premises, Verizon Wireless intends to utilize the existing access road that is currently used by City and other telecommunications carriers to access their facilities on the Property, which access road is substantially depicted on Exhibit C attached hereto and incorporated herein by this reference ( "Access Road "). NOW THEREFORE, in consideration of their mutual promises, obligations, and covenants hereinafter contained, the parties hereto agree as follows: 1. USE OF SITE AND ACCESS ROAD. City hereby consents to and acknowledges: (i) Verizon Wireless' construction, maintenance and operation of the Premises upon that portion of the City Easements described in Exhibit `B "; and (ii) Verizon Wireless' use of the Access Road for ingress and egress to the Premises. 2. TERM. The term of this Agreement shall commence upon the date of this Agreement's full execution by the parties hereto, and shall continue until the expiration or termination of the Lease. 3. CITY EASEMENT. Verizon Wireless acknowledges that City's interest in and to the City Easements, was recorded prior to Verizon Wireless' interest to any portion of the Premises that is located within the City Easements. Verizon Wireless acknowledges and agrees that City has retained and continues to reserve all rights to use all portions of the City Easements for all the purposes for which City Easements were acquired. 4. APPROVAL OF PLANS. Before commencing construction at the Premises, Verizon Wireless shall submit plans and specifications to City for City's written approval, which approval shall not be unreasonably withheld, conditioned or delayed. The City shall respond in writing within twenty -five (25) days of submission relative to approval or rejection of the plans and specifications. All work to be done by Verizon Wireless shall be preformed in accordance with the approved plans unless otherwise approved in writing by City, which approval shall not be unreasonably withheld, conditioned or delayed. City shall not be entitled to any compensation for reviewing Verizon Wireless' plans and specifications. 5. CONFLICT WITH CITY IMPROVEMENTS. City reserves the right to lay, construct, repair, alter, relocate and maintain subsurface, surface or other improvements of any type within the City Easements described above. If the City reasonably finds that the location or relocation of such subsurface, surface or other improvements conflicts with facilities constructed or maintained pursuant to the Verizon Wireless Lease and under this Agreement, whether such facilities were constructed before or after the improvements of the City, Verizon Wireless shall relocate permanently or temporarily; as directed at the reasonable discretion of the City Utilities Director, and as reasonably agreed to by Verizon Wireless, any such facility at no expense to the City upon receipt of a written reasonable request from the City Utilities Director to do so and 2 SLO Foothill M M shall commence such work by beginning engineering, surveying or other pre - construction activities on or before the date specified in such written request, which date shall not be less than thirty (30) days from receipt of such, written request. Veri zon Wireless shall thereafter with commercially reasonable diligence prosecute such work to completion. 6. HOLD HARMLESS AND INDEMNIFICATION. Verizon Wireless agrees to defend, indemnify, protect and hold the City and its agents, officers and employees harmless from and against any and all claims asserted or liability established for damages or injuries to any person or property, including injury to Verizon Wireless' employees, agents or officers which arise from or are connected with or are caused or claimed to be caused by the acts or omissions of Verizon Wireless and its agents, officers or employees in performing the work associated with its facilities in the Verizon Wireless Premises or access thereto and all expenses of investigating and defending against same; provided, however, that Verizon Wireless' duty to indemnify and hold harmless shall not include any claims or liability arising from the established sole negligence or willful misconduct of the City, its agents, officers or employees.. 7. ACCESS TO SITE. Verizon Wireless shall. have -the right to use the Access Road for ingress and egress to the Premises twenty -four (24) hours a day seven (7) days a week. The City shall not unreasonably restrict Verizon Wireless' use of the Access Road or its access to the Premises. In accordance with the Lease Verizon Wireless acknowledges and agrees that: (i) any damage to the Access Road caused by Verizon Wireless that is not attributed to ordinary wear and tear shall be repaired by Verizon Wireless at its sole. cost and expense; and (ii) the reasonable costs of maintaining the Access Road, shall be shared equally between all parties using the Access Road. 8. ASSIGNMENT. This Agreement may be sold, assigned or transferred by the Verizon Wireless without any approval or consent of City or Owners. Written notice shall be provided to the City within thirty (30) days of any assignment. 9. AMENDMENTS. Any amendment, modification, or variation from the terms of this Agreement shall be in writing and shall be effective as to the City only upon approval by the City Administrative Officer of the City. 10. COMPLETE AGREEMENT. This written Agreement, including all writings specifically incorporated herein by reference, shall constitute the complete agreement between the parties hereto as to the subject matter hereof. No oral agreement, understanding, or representation not reduced to writing and specifically incorporated herein shall be of any force or effect, nor shall any such oral agreement, understanding, or representation be binding upon. the parties hereto. 11. NOTICE. All written notices to the parties hereto shall be sent by United States mail, postage prepaid by registered or certified mail addressed as follows: City Utilities Director City of San Luis Obispo 879 Morro Street San Luis Obispo, CA 9340.1 SLO Foothill M M Verizon Wireless GTE Mobilnet of Santa Barbara Limited Partnership, d/b /a Verizon Wireless 180 Washington Valley Road Bedminster, New Jersey 07921 Attention: Network Real Estate Owners Scott D. & Barbara M. Stimson 2100 Slack Street San Luis Obispo, CA 93405 12. AUTHORITY TO EXECUTE AGREEMENT. The City, Owners and Verizon Wireless do covenant that each individual executing this agreement on behalf of each party is a person duly authorized and empowered to execute Agreements for such party. IN WITNESS WHEREOF, the parties hereto have caused this instrument to be executed the day and year first above written. APPROVED AS TO FORM: z��ct!�� City ey SLO Foothill CITY OF SAN LUIS OBISPO, A Municipal orati on Ci Administrative Officer OWNERS Scott D. Stimson & Barbara M. Stimson, husband and wife, joint tenants By: GTE Mobilnet of Santa Barbara Limited Partnership, a Delaware limited partnership, d/b /a Verizon Wireless By: Cellco Partnership, Its: general By: Robert F. Swaine West ea Vice President - Network Date: e - U —D� ffs M M State of California } County of San Luis Obispo } On July 29, 2004, before me, Diane R. Stuart, Notary Public, personally appeared Kenneth Hampian ( X ) personally known to me or ( ) 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 capacity, and that by his signature on the instrument the person or the entity upon behalf of which the person acted, executed the instrument. Witness my hand and official seal. Notary • OFFICIAL Ejj DIANE R. STUART -4 NT LjNOTA Y PUBLIC - CALIFORNIA COMMISSION #1305430 SAN LUIS OBISPO C 20 2005 My ComMISSlon Exp. ( ) individual(s) ( ) corporation ( ) partnership ( ) attorney -in -fact ( X ) political agency Consent to Common Use Agreement. 5 SLO Foothill M w ACKNOWLEDGMENT State of California ) ) ss. County of San Luis Obispo ) On P MIAI + 11,2004 , before me, yl'G ql L HdkVPX6k a Notary Public, personally appeared ?"G 96U,14 V- S- NISOO , (or 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 -lie /she executed the same in *iis/ her authorized capacity, and that by his/her signature on the instrument, the person, or the entity upon behalf of which the person acted, executed the instrument. Witness my hand and official seal. VICTORIA HERRERA Commission # 1489944 ..m Notary PubUc - CaUfomla San Luis Obispo County My Comm. E*k9s May 17, 2008 SLO Foothill P 7J ACKNOWLEDGMENT State of California ) ) ss. County of San Luis Obispo ) N On AuquA 7-0.100'A , before me, NAk< P 1f lX AAa-V` a Notary Public, Yersonally appeared ' �)cA- DS"IW3CV� , personally known to me (or 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 /she executed the same in his /her authorized capacity, and that by his /her signature on the instrument, the person, or the entity upon behalf of which the person acted, executed the instrument. Witness my hand and official seal. Nota4 0 417 °. a_, . L4 l' t Notarial Seal Phillip V6tman, Notary Public City of Pittsburgh, Allegheny County My Commission Expires June 6, 200.5 Member, PennsylvaniaHssoaatonof Notaries SLO Foothill • CORPORATE ACKNOWLEDGMENT STATE OF AR_ IZONA ) ) SS. COUNTY OF MARICOPA ) On this a3 day of overr,be/L, 2004, before me, the undersigned, a Notary Public in and for, the State of Arizona, duly commissioned and sworn, personally appeared Robert F. Swaine to me known to be an authorized representative of GTE Mobilnet of Santa Barbara Limited Partnership dba Verizon Wireless, by Cellco Partnership, Its General Partner, that executed the foregoing instrument, and acknowledged said instrument to be the free and voluntary act and deed of GTE Iylobiinet of Santa Barbara Limited Partnership dba Verizon Wireless, for the uses and purposes therein mentioned, and on oath stated that he /she is authorized to execute the said instrument. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year first above written. Print or Type Name: JANET LOEBS Notary Public in and for the State of AZ, residing at NIARICOPA COUNTY My appointment expires: DEC. 24, 2006 M M Exhibit "A" Legal Description of the Property Real property in the City of San Luis Obispo, County of San Luis Obispo, State of California, described as follows: THE SOUTHWEST QUARTER OF THE SOUTHWEST QUARTER OF SECTION 24, IN TOWNSHIP 30 SOUTH, RANGE 12 EAST, MOUNT DIABLO BASE AND MERIDIAN, IN THE CITY OF SAN LUIS OBISPO, COUNTY OF SAN LUIS OBISPO, STATE OF CALIFORNIA, ACCORDING TO THE OFFICIAL PLAT THEREOF. EXCEPT THEREFROM ALL THAT PART THEREOF KNOWN AS MONTEREY HEIGHTS ACCORDING TO THE MAP OF SAID MONTEREY HEIGHTS RECORDED IN BOOK 3, PAGE 66 OF MAPS. ALSO EXCEPT THEREFROM THE PARCEL OF LAND AS DESCRIBED IN DEED DATED JUNE 26, 1928 EXECUTED BY RALPH LAW AND ELIZABETH C. LAW, HIS WIFE TO J.F. FAULSTICH AND EVA FAULSTICH AND RECORDED JULY2, 1928 IN BOOK 53, PAGE 368 OF OFFICIAL RECORDS. ALSO EXCEPT THEREFROM THE PARCEL OF LAND DESCRIBED IN DEED EXECUTED BY RALPH LAW AND ELIZABETH C. LAW, HIS WIFE TO MAY R. MALNO AND RECORDED MAY 1, 1.930 IN BOOK 85, PAGE 409 OF OFFICIAL RECORDS. ALSO EXCEPT THE PARCEL OF LAND CONVEYED TO JOHN SNETSINGER BY DEED RECORDED MARCH 14, 1974 INBOOK 1769, PAGE 240 OF OFFICIAL RECORDS. ALSO EXCEPT THEREFROM THE PARCEL OF LAND DESCRIBED IN CERTIFICATE COMPLIANCE RECORDED AUGUST 18, 1987 IN BOOK 3035, PAGE 730 AND RE- RECORDED OCTOBER 14, 1987 IN BOOK 3059, PAGE 598 BOTH OF OFFICIAL RECORDS. APN: 052- 271 -010 and 073 - 341 -008 SLO Foothill mmz mz = � i� z m�A mA � II O7�7pp �N P it A7ap0 N D °aim Ab. 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