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CC Resolution No. 19-063 Authorizing the City Manager to Execute an Antenna Ground Lease Agreement Between the City of Cupertino and T-Mobile West Tower LLC for an Existing Cell Tower_revised 8/11/23RESOLUTION N0. 19-035 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO AUTHORIZING THE CITY MANAGER TO EXECUTE A FIRST AMENDMENT TO ANTENNA GROUND LEASE AGREEMENT BETWEEN THE CITY OF CUPERTINO AND GTE MOBILNET OF CALIFORNIA LIMITED PARTNERSHIP D/B/A VERIZON WIRELESS FOR EXISTING CELL TOWER AT THE CUPERTINO CIVIC CENTER. WHEREAS, the City Council has considered a request for a First Amendment to Antenna Ground Lease agreement between the City of Cupertino and GTE Mobilnet of California Limited Partnership d/b/a Verizon Wireless, for the lease of facilities located at the Cupertino Civic Center, 10300 Torre Avenue; and WHEREAS, the provisions, terms, and conditions of the First Amendment to Antenna Ground Lease agreement have been reviewed and approved by the City Attorney and City Manager. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Cupertino hereby authorizes the City Manager to execute the First Amendment to Antenna Ground Lease, as presented to Council, on behalf of the City of Cupertino. PASSED AND ADOPTED at a regular meeting of the City Council of the City of Cupertino this 2nd day of April 2019, by the following vote: Vote AYES: NOES: ABSENT: ABST AIN: Members of the City Council Scharf, Chao, Paul, Sinks, Willey None None None ATTEST: APPROVED: GraceSchmidt StevenScharf,Mayor CityClerk CityofCupertino FIRST AMENDMENT TO ANTENNA GROUND LEASE Tliis FIRST AMENDMENT TO ANTENNA GROUND LEASE ("An'iendment") is iriade as of tlie last date of execution indicated oi'i tlie signature page below, by and between City of Cupertit'io, California ("Lessor" or "City"), and GTE Mobilnet of California Liinited Partnersliip d/b/a Verizon Wireless ("Lessee"), witli reference to tlie facts set foi'tli ii'i tlie Recitals below: RECIT ALS A. Lessor and Lessee, or tlieir predecessors in interest, are parties to an Anteima Ground Lease dated January 19, 2016 (tlie "Lease"), wl'iereby Lessor lias leased a portion of tlie City Property (as defined in tlie Lease) to Lessee to construct, operate and maintain a communicatioi'is facility. B. Lessor and Lessee desire to (i) extend tlie lieiglit of Lessee's Mono-Eucalyptus, ai'id (ii) inodify Lessee's Improven'ients. AGREEMENT NOW, THEREFORE, iri consideratioi'i of tlie facts contaii'ied in tlie Recitals above, tl'ie inutual covenat'its and conditions below, ai'id otlier good and valuable consideration, tlie receipt and sufficiency of wliicli are liereby acknowledged, tlie parties agree as follows: 1. EXTENSION OF MONO-EUCALYPTUS. Lessee sliall liave tlie riglit to extei'id the height of tlie Mono-Eucalyptus by fifteen (15) feet, to a l'ieiglit of seventy-five (75) feet, at Lessee's sole cost and expense, wliicli fifteei'i (15) foot Moi'io-Eucalyptus extension sliall be owned by Lessee. 2. LEASE OF PREMISES. Section ).1, Lease of Premises, of tlie Lease sl'iall be modified by deleting "1 12. l," and replacing witli, "314. 16." 3. IMPROVEMENTS. Section 1.2, Iinprovements, of tlie Lease sliall be modified by deleting, "55 feet," and replacing witli, "a RAD Center of 66.O feet." 4. EXHIBIT "C". Exliibit"C" attaclied to tlie Lease is liereby inodified and supplemented with Exliibit "C" attaclied liereto and inade a part liereof. Exliibit "C" attaclied liereto sliall coi'itrol to describe tlie aerial easeinei'it in tlie evei'it of any discrepancy between tlie description of tlie aerial easeinent as set fortli in Exl'iibit "C" attaclied liereto and tlie description of tlie aerial easei'nent attaclied to tlie Lease. All references ii'i tlie Lease to Exliibit "C" slioll hereinafter refer to Exliibit "C" attaclied to tlie Lease as inodified and supplemented by Exliibit "C" attaclied l'iereto. 5. CONTINUED EFFECT. Except as specifically modified by tliis An"iendinent, all of the tertns and conditions of tlie Lease sliall reinain in full force and effect. In tlie event of a conflict between any terin and provisioi'i ot- tlie Lease and tliis Aineimmei'it, tlie terins ai'id provisions of tliis Ainendmei'it sliall control. In additioi'i, except as otlierwise stated in tliis Deanza Stevens Ci'eek 69871710B. i656792.5 I Aineiminent, all initially capitalized terms will have tl'ie saine respective defined ineaning stated in tlie Lease. All captions ai'e for reference purposes only ai'id sl'iall not be used in the construction or interpretatioi'i oftliis Amendinent. IREAfA JNDER OF PA GE INTENTJONA LL Y LEFT ELA NKI l' Deanza Stevei'is Ci'eek 69871710B.1656792.5 IN WITNESS WHEREOF, Lessor and Lessee liave caused tliis FIRST AMENDMENT TO ANTENNA GROUND LEASE to be executed by eacli party's duly autliorized representative effective as of tlie date last below written. LESSOR: City of Cupertino, California LESSEE: GTE Mobilnet of California Liinited Partnersliip d/b/a Verizon Wireless By Cellco Paitnersliip, Its General Paitner Name: Scott R Stewait Title: Director - :Netw,ork Field Engineering I Approved as to form: City Attorney Deanza Stevens Ci'eek 6987)710B. 1656792.5 3 Deai'iza Stevens Creek 6987 7 0B.1656792.5 EXHIBIT C 4 c RO 10' PUE EASEMENT VERIZONWIIIELESS -I ALL 'VERIZON WIRELESS" EASEMENTS SHOWN ON THIS PLAN ARE SIIBJECT TO THE TERM OF THE ORIGINAL ANTENNA GROUND LEASE AGREEMENT DATED Offl912018. MODIFIED AND SuPPLEMENTED BY THE FIRST AMENDMENT TO ANTENNA GROUND LEASE. SHEET l1llE SITE s+itn NUMBERI PAGE I OF 2 t THE LYLE COMPANY EXHIBIT C DEANZA STEVENS CREEK 10800 TORRE AVENUE, CUPERTINO, CA 95014 TOP OF (N) MON()EUCALYPTUS BRANClH5.Eu!! Q5 (N) VERIZON WIRELESS RRH UNIT TYP OF ,) - l (E) MONOEuCALYPTuS (N) HYBRID TRUNK CABLE. TYP OF 2 [E) TR ASH ENCLOSURE iN) VERIZON WIRELESS SURGE StlPPRESSOR. TYP OF 1 iE) WOOD FENCE iE) VERIZON WIRELESS EQUIPMENT PAD THE LYLE COMPANY EXHIBIT C DEANZA STEVENS CREEK 10800 TOFIFIE AVENUE, CUPEFITINO, CA 95014 SIIEET TITLE. ELEVATION SHEET NUMBER. PAGE 2 0F 23110 (iOu) CAMP [)IIVI 8UIIE Aln IIAIICIIO CORDaVA. C.1 9i61n RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: McGuireWoods LLP 1800 Century Park East, 8th Floor Los Angeles, California 90067 Affn: Marc H. Goldsmith, Esq. Re: DeAnza Stevens Creek DOCUM'ENT: 23'2628a85 IIllIlllIIIIIIIlllIllIIllIIIIIIIIIIIIIIllIIlllllIIlllIII)IllFees.. Taxes Copies.. AMT PAID REG)NA ALCOMENDRAS 'SANTA CLARA COUNTY RECORDER R.ecorded at the request of Recording Service Pages : 45 00 45 00 RDE # 024 4XOi/2G316 1 I :09 AM ST ATE OF CAuFORNIA COUNTY OF SANTA CLARA Assessor's Parcel No.: 369-3 ]-033 Document Transfer Tax = $0.00; the total guaranteed term of the Lease is less than 35 years MEMORANDUM OF ANTENNA GROUND LEASE This MEMORANDUM OF ANTENNA GROUND LEASE ("Memorandum") is made as of the last date of execution indicated on the sigriature page below betffleen the City of Cupertino, California, with an address of David Brandt, City Manager, City of Cupertino, 10300 Torre Avenue, Cupertino, CA 95014-3202, hereinafter designated "CITY," and GTE Mobilnet of California Limited Partnership, d/b/a Verizon Wireless, with an address for notices at 180 Washington Valley Road, Bedminster, New Jersey 07921, Attn: Network Real Estate (Site: DeAnza Stevens Creek), hereinafter designated "LESSEE," CITY and LESSEE are at times collectively referred to hereinafter as the "Parties" or individually as the "Party." 1.CITY and LE8SEE entered into an Antenna Ground Lease (the "Lease") dated as of januarq 19 , 201i, for an initial term of five (5) years, commencing on the Cornrnencement Date (defined hereinafter), and may be extended for two (2) additional five (5) year terms by LESSEE upon providing to CITY written notice at least sixty (60) days, but not more than one hundred twenty (120) days prior to the end of the then current term. The total guaranteed temi of the Lease is less than thirty-five (35) years. 2.Pursuant to the Lease, CITY has leased to LESSER a portion of that certain real property legally described in Exhibit "A" attached hereto and incorporated herein (the entirety of CtTY's property is referred to hereinafter as the "Property"), 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 a right-of-way extending from the nearest public right of way, and for the installation and maintenance of utility wires, poles, cables, conduits, and pipes over, under, or along a one or more rights of way, said leased premises and rights of way being substantially as described in the Lease. The Lease shall comtnence on the first day of the month during which the latter of the two dates listed occurs, which are: (i) the date of final approval of any Building Permit, if required, provided that Lessee is diligently pursuing this Building Permit after obtaining the necessary Use Permit; or (ii) the date of the vacation of the wire clearance easement encumbering the City Property by the CITY (which easement imposes a height limitation of 15 feet on Improvements located within the easement area). The teims, covenants and provisions of the Lease, 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 CITY and LESSEE. 2 IN WITNESS WHEREOF, the Parties hereto have set their hands and affixed their respective seals the day and year last written below. CITY: C}TY OF CUPERTINO, CALIFORNIA APPROVED AS TO FORM: lph Stevenson Hom Brandt City Manager Date. J iq I! ATTEST: 1([laty5! Date: 3 I '(=l(o LESSEE: GTE Mobilnet of Califomia Limited Partnership, d/b/a Verizon Wireless By: Cellco Partnership, its General Partner NByame: P! T:,a Execu,t3/e D,77r,-,Network 3 CITY ACKNOWLEDGEMENT 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. ST ATE OF CALIFORNIA personally appeared who proved to me on the basis of satisfactory evidence to be the person(/) whose name(/) is/a7e subscribed to the within instrument and acknowledged to me that he/sJffi/t)r6y executed the same in his$r/tNeir authorized capacity(ie4, and that by his%r/t56ir signature(4 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 Califomia that the foregoing paragraph is true and correct. WITNESS my hand and official seal. 8amamCoumy gau %b21 2019 Notary Public (Seal) (l 70127916 I LESSEE ACKNOWLEDGEMENT 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 CONTRA COSTA the person whose natne 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 Califomia that the foregoing paragraph is true and correct. A7'RJ KRliSE-LUOTKE ! Commission # 21041802 Notaty Public - CalilOtnla z;c, 2 , z, W/ Contta COllnty='- Comm.E3M4 WITNESS my hand and official seal. lic (Seal) 70127916.1 EXHIBIT A Legal Description of Property Real property in the City of Cupertino, County of Santa Clara, State of Califomia, described as follows: PARCEL ONE: LOT 7, AS SHO\)VN ON THAT CERTAIN MAP ENTITLED TRACT N0. 3743 CUPERTINO TOWN CENTER, WHICH MAP WAS FILED FOR RECORD IN THE OFFICE OF THE RECORDER OF THE COUNTY OF SANTA CLARA, ST ATE OF CALIFORNIA ON OCTOBER 16, 1964, IN BOOK 186 0F MAPS PAGE(S) 36 AND 37. PARCEL TWO: PARCELS A, B, C & D, AS SHOWN ON THAT CERT AIN PARCEL MAP ENTITLED, "PARCEL MAP. BEING ALL OF LOT 4. TRACT N0. 3743. CITY OF CUPERTrNO" WHICH PARCEL MAP WAS FILED FOR RECORD IN THE OFFICE OF THE RECORDER OF THE COUNTY OF SANTA CLARA. ST ATE OF CAtIFORNIA ON MARCH 7. S974 BOOK 337 0F MAPS. AT PAGE 11 APN: 369-31-033 70127916 I ia ,i. ANTENNA GROUND LEASE Beh=veen THE CITY OF CUPERTINO and GTE Mobilnet of California Limited Partnership, a California limited partnership, d/)b/a Verizon Wireless 74211405.1 TABLE OF CONTENTS ARTICLE 1 PREMISES AND IMPROVEMENTS Lease of Premises Improvements, ARTICLE 2 TERM Initial Term Option to Extend Commencement Date Relocation of Mono-Eucalyptus and Adjacent structures ARTICLE 3 RENTAL. Base Rent Aiu"irial Increase Transactional Costs Late Charge Additional Consideration ARTICLE 4 USE Permitted Uses Access Prohibited Uses Approval by the City and Other Agencies. Additional Antenna(s) to be added by City Compliance with Laws Condition, Use of Premises Hazardous Materials. ARTICLE 5 MAnSTTENANCB, REPAIRS AND ALTERATIONS. General Surrender City's Rights City Repair Obligations Security Measures........... Improvements City Access Lessee Access . . . Lessee Access During Security Alert ARTICLE 6 INDEMNITY AND INS'[TRANCE Indemnity Waiver of Claims Insurai'ice Page .1 .3 4 4 .4 4 5 5 5 8 10 (L 74211405.1 TABLE OF CONTENTS (contirtued) Page ARTICLE 7 7.1 7.2 7.3 ARTICLE 8 8.1 8.2 8.3 ARTICLE 9 ARTICLE 10 ARTICLE 11 DAMAGE, DESTRUCTION j'aSJD TERMINATION....................................11 Nontermination and Nonabatement ....,. ,,, , , l l ForceMajeure . ....... . . .. 11 Waiver........ . 11 TAXES ... .. 11 Personal Property Real Property Definition. UTILITIES SIGNS ASSIGNMENT AND SUBLETTING 11.1 City's Consent Reqiired 11.2 Net Worth Requirements 11.3 No Release of Lessee 11.4 Right of First Refusal.. ... ARTICLE 12 DEFAULTS; REMEDIES 12.1 Defaults 12.2 Remedies 12.3 No Relief from Forfeihire After Default. ARTICLE 13 TERMINATION OF LEASE 13.1 Termination by Lessee . 13.2 Termination by City 13.3 Condemnation of Leased Prexnises ARTICLE14 CITY'SLIABILITY ARTICLE15 INTERESTONPAST-DUEOBLIGATIONS ARTICLE 16 HOLDING OVER ARTICLE 17 CITY'S ACCESS ARTICLE18 QUIETPOSSESSION ARTICLE 19 EASEMENTS ARTICLE 20 GENERAL PROVISIONS 13 201 20.2 20.3 20.4 20.5 Severability Time of Essence Additional Rent Entire Agreement, Modification. No Warranty 74211405.1 TABLE OF CONTENTS (continued) 20.6 20.7 20.8 20.9 20.10 20.11 20.12 20.13 20.14 20.15 20.16 20.17 20.18 20.19 Notices Waivers Cumulative Remedies Choice of Law Condition to Effectiveness of Lease.. Attorneys' Fees..... Brokers Authority Non-Liability of Officials and Employees of the City Non-Discrinxination Independent Contractor Conflict of Interest Memorandum of Lease Estoppiel Certificate.. -111- Page {i 74211405.1 ANTENNA GROUND LEASE This Lease ("Lease") is made and entered into as of javiutGulE MobilrnX't=oef"Caj hbfyOlannldabetween the City of Cupertino, Califoinia, ("City" or "Lessor"), and Litnited Pattnership, a California litnited partnership, d/b/a Verizon Wireless ("Lessee" RECITALS The following recitals are a substantive portion of tlus Lease: A. City is the owner of certaiix real propexiy situated in Santa Clara Corinty, State of Califoinia, as more particularly described ii'i Exhibit "A" attached and incorporated by this reference. B. Lessee is a limited partnership organized under the laws of tlie State of Califomia whose principal business is telecommunications. C. Lessee requests the lease of ceitain real property ownedaby the City for the construction, instaIlation and operation of a cellular telephone cornrnunication facility. D. City is willing to permit Lessee to lease the property in accordance with the terms, conditions 'and covenants of this Lease. B. LesseeacknowledgesthatthisprojectwilIrequireausepermitfromtheCitybefore this Lease will be effective. NOW THERF,FORF,, THE PARTIES AGREE AS FOLLOWS: ARTICIE, 1 Premises and Improvements 1.1 Lease of Premises. City hereby leases to Lessee and Lessee leases from City for the term, at the rental and upon all of the terins and conditions set forth, aportion of the real propcrty located at 10800 Torre Avenue, Cupertino, CA APN# 369-3 1-033, comrnonly known as Cupertino Civic Center ("City Property"). Lessee shall lease approximately 743.0 square feet, with an aerial easement of approximately 112.1 square feet, as described in Exhibit"B" attached and incorporated herein (the "Premises") 1.2 Improvements. The Premises shall be used by Lessee only to locate multiple equipment cabinets, landscaping, rinderground cable and conduit, and a mono-eucalyptus tower (alternately, the "Mono-Eucalyptus" or "antenna structure") for the location of Lessee's antennas ("Improvements"). The Iinprovements are more particularly shown on plans, which have been submitted for site development and use pen'nit approvals, as required by the City. A copy of the plans is attached and incorporated by this reference as Exhibit "C". The plans shall reflect, among other things, the height of Lessee's antennas on the antenna structur"e at 55 feet. The plans shall also identify the trees surrorinding the antenna structure which Lessee may trim as it deems necessary, at its expense and in accordance with applicable local, state or federal law, to a height of 44 feet. It is understood and agreed that the final plan for the I 74211405.1 Improvements will be tlie plans approved by the City thro'igli its site development and use permit process(es). ARTICLE 2 Term 2.1 Initial:Term. The tem of this Lease shall be for a period of apjroximately five (5) years beginning on the Corninencement Date and terminating on tlie fi:tth aru'iiversary of the Commencement Date, unless teimii'iated earlier ("Teriu"). 2.2 0ption to Extend. Provided Lessee is not in defarilt, either at the tin':ie of exercise or at the tiine the extended Terin coinmences, Lessee shall have the option to extend tlie initial Teri'n of tl'ffs Lease for two (2) additional periods of five (5) years ("Option Period") on the same teims, covenants and conditions provided. City shall not unreasonable deny this extension. Lessee shall exercise its option by giving City written notice ("Option Notice") at Ieast sixty (60) days, but not more than one bamdred twenty (120) days, prior to the expiration of the initial Term of this Lease, or the successive term. 2.3 Comi'nencement Date. The Commencement Date of this Lease sl'iall be the first of the month during which the latter of the two dates listed occurs, which are: (i) the date of final approval of aiiy Building Permit, if required, provided that Lessee is diligently pursuing this Building Permit after obtaining the necessary Use Pennit; or (ii) the date of the vacation of tlie wire clearance easement enctunbering the City Property by the City (which easement imposes a height limitation of 15 feet on Improvements located within the easement area). 2.4 Relocation of Mono-Eucalyptus and Adjacent sttuctures. City, on one (1) occasion, may relocate the Premises to another location on City Property (herein referred to as the "Alternate Property"), provided: 2.4.1 the Alternate Property is similar to the Premises in size and is compatible for Lessee's use in Lessee's sole discretion; 2.4.2 City shall pay all costs incurred by Lessee for relocating Lessee's equipment from the Premises to a mutually agreeable site and improving the Alternate Property so that the AJternate Property is substantially similar to the Premises, including all costs incurred to obtain all ofthe certificates, permits and other approvals that may be required by any Federal, State or Local authorities as well as any satisfactory soil boring tests which will permit Lessee use of the Altemate Property as set forth in Section 1.2 above; 2.4.3 City shall give Lessee at least twelve (12) months written notice before requiring Lessee to relocate; 2.4.4 Lessee must be provided advanced notice of the ;edevelopment process and layorit of City's intended expansion; and 2.4.5 Lessee's service will not be internupted and Lessee shall be allowed if necessary to place a temporary cell site and antenna stuchire on the City Property during relocation. 2 74211405.1 ARTICLE 3 Rental 3.1 BaseRent. CommencingontheCoinmencementDate,LesseeshallpaytoCityasrentfor the Premises in advance on the first day of each calendar month of this Lease without deduction, offset, prior notice or demaiid, in lawful money of the United States, the sum of Three Thousand One Htffidred Twenty Dollars ($3,120.00) ("Base Rent"). Rent 'shall be provided to: City of Cupertino, Finance Deparhnent, 10300 Toxre Avenue, Cupeitino, CA 95014-3202. Lessor and Lessee agree and aclaiowledge that the initial rental payment(s) may not actually be sent until forty-five (45) days after the Corninencement Date. ' 3.2 Annual Increase. Durii'ig tlie Term of this Lease, including the Option Periods, the Base Rent shall be increased amiually by 4%, beginning on January 1, 2016 and effective each Jaiiuary 1st thereafter throughout the Terin and any Option Period. The sum shall be adjusted annually restilting in a compotind rate of increase. For example, the Base Rent for December 1, 2015 would be Three Thousand One Hundred Twenty Dollars ($3120.00) per month and the rate on January 1, 2016 would be Three Thousand Two Hundred Forty Four Dollars and 80 cents ($3244.80.). 3.3 Transactional Costs. Lessee shall pay to City, as additional rent, any reasonable traiisactional costs, which shall include any reasonable attorneys' fees incurred by City as a result of the negotiation, preparation, execution and delivery of this Lease, any amendment, any future consent of City required and the preparation and negotiation of an ainendment to this Lease ("Transactional Costs") not to exceed Seven Thousand Five Hundred Dollars ($7,500.00) withorit prior written approval of Lessee. Lessee has provided a deposit to City to cover any transactional costs. City shall fumish Lessee with an invoice reflecting the Transactional Costs deducted from the deposit. In the event that the deposit is exceeded or costs are incurred without a deposit than City shall provide aii invoice to Lessee and Lessee shall malce full payment to Cit)r of these costs within forty-five (45) days from the date of receipt of City's invoice. 3.4 . Lessee acknowledges late payment by Lessee to City of rent will cause City to incrir costs not contemplated by this Lease, tlie exact amount of such costs being extremely difficult and impracticable to fix. Such costs include, without limitation, processing, accounting and late charges that may be imposed on City. If any installment of rent due from Lessee is not received by City within ten (10) days after the date rent is due, Lessee shall pay to City an additional sum of ten percent (l 0%) of the overdue rent as a late charge. This penalty shall not be imposed for the first two payments under the Lease in order to permit Lessee to enroll the Lease in its payment system. The parties agree this late charge represents a fair and reasonable estimate of the costs City will incur by reason of late payment by Lessee. Acceptance of any late charge shall not constitute a waiver of Lessee's default with respect to the overdue amount, nor preyent City from exercising any of the other rights and remedies available to City. 3.5 Additional Consideration. As additional consideration for City's entering into tbis Lease, Lessee agrees to pay to City the srim of Two Thousand Five Hundred Dollars ($2,500.00) upon the earlier of: (a) sixty (60) days after full execution of tis Lease by the City; or (b) issuance of acertificateofoccupancy. ThisamountshallbeinadditiontoallothersumspayablebyLesseeto City under tbis Lease, and shall be nonrefundable to Lessee unless the City Council fails to approve the Lease or any requisite use permit. 3 74211405.1 ARTICLE 4 Use 4.1 Perinitted Uses. Lessee shall use the Premises for installation, operation, maintenance and use of a wireless coinrnunications facility, consisting of tlie equipment, iinprovements and facilities mid the ritilities, cables aiid wires reasonably needgd to sripport the operation of a cominui'iications facility. The installation of the Improvements .shall be subject to the reviews arid approvals set foith in Section 4.4. Lessee shall be solely responsible for all costs associated with the construction, installation, maintenance and use of the Improvements. 4.2 Access. City graiits Lessee reasonable non-exdusive veicular aiid foot access to the Premises. Access shall be available to Lessee, Lessee's employees and invitees diring normal business hours, except if an emergency occurs. It is anticipated, aft.er installation of the Improvements is coinpleted, that reasonable access shall occrir once every two (2) weeks for the pxupose of ordinary tuning of the Lessee's equipment, appropriate maintenance of the Iinprovements aiid the repair and replacement of communication equipment located on the Premises. City aclaxowledges that off pealc maintenance (nt,n-business hours) of the site is required approximately once per month. Lessee shall provide 24-hours' notice to City prior to off peak maiutenance except in cases of emergency 4.3 Prohibited Uses. Lessee shall not use Premises for any purpose not expressly permitted. Lessee sliall not: (a) create, cause, or permit any nuisance or waste in, on or about the Premises or permit the Premises to be used for any rinlawful; (b) do or permit anylliing wich rinreasonably distiirbs the risers of the City Propeity or the occupants of neighboring property; provided, however, that Lessee's use ofthe Property prirsuant to this Lease shall not be deemed anunreasonable inteiference; specifically, and without limiting the above, Lessee agrees not to carise any unreasonable odors, noise, vibration, power emissions or other item to emanate from the Premises; and Lessee sliall not store any materials or articles of any nature outside upon any portion of tlie Premises. 4.4 Approval by the City and Other Agencies. Lessee, at its sole cost and expense, may install the Improvements, subject to Lessee's obtaining all required permits, licenses and approvals from the City of Cupertino as the perznitting authority and .i'iot as lessor hereunder, and any other governmental agencies having jurisdiction. Lessee shall maintain permits, licenses and approvals in force throrigh the teim of this Lease, as may be extended. Should Lessee wish to subsequently change the Itnprovements (excluding any minor modification which would not require an m'nendnyent to the site development permit or a building permit, and which would not materially expand or increase the Improvements or are wholly cont ained in Lessee's equipment cabinets), it sl'iall not do so without the prior approval of City and amendment of tis lease and without obtaining all required perinits, licenses and approvals from the City of Cupertino as the permitting authority and not as lessor hereunder, aiid any other governmental agencies with jurisdiction. City's approval of these modifications shall not be unreasonably withheld. If a change in the Improvements is approved, Lessee and City shall amend Exhibit "C" to reflect the change. Sho'iild Lessee chmge or expmid any Improvements witliout the prior approval of City, City may require that Lessee remove the expansion at Lessee's sole cost and expense. Lessee shall be solely resporisible for conducting any environmental review required in association with Lessee's use of tl'ie Premises and for all costs associated, as well as all fees, charges or other expenses imposed by 4 74211405.1 the City as the regulatotay agency or other regulatory agencies arising directly orit of Lessee's rise of tlie Premises prior to the Lease conunencement or at any tiine duiing the term of the Lease. 45 Additional Antenna(s) to be added by City. Subject to the conditions set foitli in Section 4.8.8 lierein, City shall have the right to install additio.iial antennas at its sole cost and expense on the Mono-Eucalyptus provided these antennas may only bee utilized for a public purpose. The 16cation of the aiitenna(s) sl'iall be approved by Lessee. The ai'itennas shall not interfere with any activity or rise by Lessee. In the event that City's antenna(s) interfere with Lessee's use, City's antenna(s) shall be adjusted or removed to ameliorate tlffs interference 4.6 Compliance with Laws. Lessee shall not do or pernnit anything to be done in, on the Premises, or bring or lceep anything in, on the Premises which will conflict with any law, statute, ordinai'ice or governinental iule or regulation now in force or wliich may hereafter be enacted. 4.7 Condition, Use of Preises. Except for any warranties and representations expressly set forth herein, City makes no warranty or representation conceriig the condition of the Premises, or the fitness of the Pren'iises for the use intended by Lessee, and disclaims any personal laiowledge, it being expressly understood by the paities that Lessee has personally inspected tlie Preinises, laiows its condition, finds it fit for Lessee's iiitended use, accepts it as is and has ascertained that it cai'i be used for the liinited purposes specified in Section 4.1. 4.8 Hazardous Materials. 4.8.1 Hazardoris Materials on Premises. City and Lessee shall not introduce any Hazardous Materials (as defined below) to the Premises or the Property excluding any Hazardous Materials that are components of commercially available products or are typically used, stored, or handled in Lessee's industry or are typically stored or handled by the City, provided that Hazardous Materials are transported, obtained, handled, stored and/or disposed of in accordance with alr federal, state and local laws, ordinances, rules, regulations or policies. 4.8.2 Hazardous Materials Defined. Theterm"Hazardoris Material(s)"shallmeanany toxic or hazardous substance, material or waste or any pollutant or contaminant or infectious or radioactive material, including but not limited to, those substances, materials or wastes regulated now or in the future within the definitions of "hazardous substances," "hazardous waste," "hazardous chemical substance or mixti'ire," "imininently hazardous chemical substance or mixtiuae," "toxic substances," "hazardous air pollutant," "toxic pollutant" or "solid waste" in the following statutes and regtilations: (a) "CERCLA" or "Superfund" as mnended by SARA, 42 U.S.C. Secs. 9601 et seq.; (b) RCRA, 42 U.S.C. Secs. 6901 et seq.; (c) CWA, 33 U.S.C. Secs. 1251 et seq.; (d) CAA, 42 U.S.C. Secs. 7401 et seq.; (e) TSCA, 15 U.S.C. Secs.. 2601 et seq.; (f) The Refuse Act of 1899, 33 U.S.C. Secs. 407; (g) OSHA, 29 U.S.C. Secs. 651 et seq.; (h) Hazardous MaterialsTransportation Act, 49 U.S.C. Secs. 5201 et seq.; (i) USDOT Table (49 CFR Sec. 172.101 App. A and amendments) or the EPA Table (40 CFR Part 302 and amendments); (j) Carpenter-Presley-Tanner Hazardous Substance Account Act, CaI. Health & Safety Code Secs. 25300 et seq.; (k) California Hazardoris Waste Control Act, Cal. Health & Safety Code Secs. 25100 et seq.; (l) Porter-Cologne Act, Cal. Water Code Secs. 13000 et seq.; (m) Hazardous Waste Disposal Land Use Law, Cal. Health & Safety Code Sec. 25220 et seq.; (n) "proposition 65," Cal. Health and Safety Code Sec. 25249.5 et seq.; (o) Hazardous Substances Underground 5 74211405.1 Storage Tanlc Law, Cal. Health & Safety Code Sec. 25280 et seq.; (p) California Hazardous Substance Act, Cal. Health & Safety Code Secs. 108100 et seq.; (q) Air Resources Law, Cal. Health & Safety Code Secs. 39000 et seq.; (r) Hazardous Materials Release Response Plans and Inventory, Cal. Health & Safety Code Secs. 25500 et seq.; (s) TPCA, Cal. Health and Safety Code Secs. 25208 et seq.; and (t) regulations promulgated pursuant to said laws or any replacement thereof, or as similar terms are defined in the federal, state and local laws, statutes, regulations, orders or rules. Hazardous Materials shall also mean any and all other substances, materials and wastes which are, or in the fi'iture become regulated under applicable local, state or federal law for the protection of health or tl'ie environment, or which are classified as hazardous or toxic substances, materials or wastes, pollutants or contaminants, as defined, listed or regulated by aiiy federal, state or local law, regulation or order or by cornrnon law decision, including, without liniitation: (i) tricbloroetliylene, tetracholoethylene, perchloroethylene and other chlorinated solvents; (ii) any petroleum products or fractions thereof, (iii) asbestos; (iv) polychlorinated biphenyls; (v) flapnable explosives; (vi) urea formaldehyde; and (vii) radioactive materials and waste. 4.8.3 Hazardous Materials Indemnity. Lessee shall indemnify, defend (by counsel reasonably acceptable to City), protect and hold Lessor harmless from and against aiiy and all claims, liabilities, penalties, forfeitures, losses and/or expenses, including, without limitation, diminution in vague of the Premises, dainages for the loss or restriction on use of the rentable or usable space or of any amenity of the Premises, damages arising from any adverse iinpact or marketing of tlie Premises and sums paid in settlement of claims, response costs, cleanup costs, site assessment costs, attonxey's fees, consultant and expert fees, judgments, adininistrative rulings or orders, fines, costs of death of or injury to any person or damage to any property whatsoever (including, without limitation, groundwater, sewer systems aiid atmosphere), to the extent arising from, or carised or resulting, during the Lease Term, in whole or in part, directly or indirectly, by the presence or discharge in, on, ui'ider or aboxit the Premises by Lessee, Lessee's agents, employees, licensees or invitees acting on Lessee's behaIf or at Lessee's direction, of Hazardous Material, or by Lessee's failure to comply with any laws pertaining to any Hazardous Materials Law, whether Icnowingly or by strict liability. Lessee's indemnification obligations shall inchide, without limitation, andwhether foreseeable or unforeseeable, all costs of any required ornecessary Hazardous Materials management plan, investigation, repairs, cleanup or detoxification or decontamination of the Premises, and the presence and implementation of any closure, remedial action or other required plans for the Premises, and shall survive the expiration of or early termination of the Term. For purposes of the indemnity, any acts or omissions of Lessee or its employees, agents, customers, sublessees, assignees, contractors or subcontractors of Lessee while acting on behalf of Lessee (whether ornotthey are negligent, intentional, willful or unlawful) shall be strictly attributable to Lessee. Lessee's inderty obligations shall not include claims, liabilities, losses, damages, costs, or other expenses arising from the negligt'nce or misconduct of City or City's employecs, agents, sublessees, assignees, invitees, subcontractors or contractors. 4.8.4 City's Right to Perform Tests. 4t any tie prior to the expiration of the Term, City shall have the right to enter upon the Premises in order to conduct tests of water arid soil, which tests shau not disrupt or interfere with Lessee's operations, and to deJiver to Lessee the results of suchtests to demonstrate that levels of any Hazardous Materials in excess of permissible levels has occurred as a result of Lessee's use of the Premises. Lessee shall be solelyresponsible for and shall indemnify, protect, defend and hold City harmless from and against all claims, costs and liabilities 6 74211405.1 including actual attorney's fees and costs aiising out of or in coitnection witli any removal, remediation, clean rip, restoration and materials required hererinder to return the Premises aiid any other property of whatever nature to their condition existing prior to the appearance of the Hazardous Materials to the extent such presence arises out of Lessee's rise of the Premises. The testing shall be at Lessee's expense if City has a reasonable basis for suspecting aiid confiims the presence of Hazardous Materials in the.. soil or surface or groundwater in on, rinder, or aborit the Premises, which has been caused by or resilted from the activities of Lessee, its agents, employees, contractors or invitees acting on Lessee's behalf or at Lessee's direction. 4.8.5 Survival. This entire Section 4.8 of this Lease shall s'irvive termination of the ' Lease, as to any activities during the term of this Lease. 4.8.6 Termination of Lease. City sliall liave the right to terminate the Lease in City's sole and absolute discretion in the everit that: (i) any rise of the Premises by Lessee involves the ' generation or storage, use, treatment, disposal or release of Hazardous Material in a manner or for a prirpose prohibited or regulated by any governi'nental agency, authority or Hazardous Materials Laws; (ii) Lessee has beei'i required to talce remedial action in connection with Hazardous Material contaminating the Premises, if the contai'nination resulted from Lessee's action or rise of the a Preinises; or (iii) Lessee is subject to an enforcement order issued by any governmental authority in connection with the release, use, disposal or storage of a Hazardous Material on tl'ie Premises. Lessee shall have thirty (30) days after receipt of notice from City to cure or commence cure, prior to City's ability to exercise its rights rinder this Section. 4.8.7 Covenant of Non-Interference. Lessee shall be responsible for inspecting City Property and finding adeq'i'iate space atthe site withoutmoving orrelocating any of City's facilities or equipment, or any other facility, or ritility located at the City Property at the time Lessee's facilities are installed. Lessee's equipment shall not cause incurable interference with any other existing facility or antenna on the City Property as of the date of this Agreement. In the event that Lessee's equipment does cause inctuaable interference with other facilities, Lessee shall be' required to install, at its own expense, freqriency filters or talce other reasonable measures to correct the problem. Lessee sl"iall be required to coordinate with other existing utilities located at the City Property, to ensure that Lessee's equipn"ient does not interfere with the existing frequency utilized by existing utilities. Lessor shall not permit the installation or subseqrient equipment on the City Property by Lessor or a third party wliich interferes with Lessee's operations. 4.8.8 Co-location. Lessee aclgiowledges that it has given City prior approval that it wilj lease one (1) position on Lessee's antenna structure on the Premises to one (l) other coinmunications provider (the "First Other User"), subject to the First Other User's compliance with the conditions below. Lessee fuither aclcnowledges and approves that City shall be entitled to require Lessee to lease additional positions on Lessee's antenna stnucture on the Premises, subject to the conditions below. The City may aIso require that the antenna structure be extendable to a height of up to 80 feet, following the grant of a height exception. If Lessor wishes to require Lessee to lease space on Lessee's antenna structure on the Premises to allow a second other communications provider (the "Second Other User") to attach its communications equipment on the antenna structure, Lessor shall submit a written request to Lessee listing the proposed equipmenttobeplacedontheanteru'iastructure. Theterms"FirstOtherUser"and"SecondOther User"arecollectivelyreferredtohereinafterasthe"OtherUser." Lesseeshallreviewsuchrequest 7 74211405.1 and determine the following, including without liinitation (1) whether the Other User's proposed installation interferes or conflicts with Lessee's or otlier risers' use of the antenna structure or the Premises; (2) whether the antenna stnicture can withstand the structural load of Other User's proposed eqriipment; or (3) if Other User's proposed equipment jeopardizes Lessee's permits or any approval for use of the Preinises. If testiiig or analysis, incl'i'iding without limitation a structural analysis, intermodulation.,study, construction or zoning drawings, or any enviroental testing is required, Other User shall be responsible for tlie costs of such testing or analysis. Upon approval, Lessee and Other User shall ei'iter into a separate agreement permitting Other User to attach its approved equipment to the antenna structure. Lessee shall liave no liability of any nature to Lessor for failure to allow Other User(s) to use Lessee' antenna structure. Lessee shall receive 100% of the rei'ital for any Other Users' use of Lessee's antenna structure, and City shall receive 100% of the rental, negotiated by City and such Other User for the portion of the Other User's lease of any City Property. All operations by Lessee shall be in compliance with all Federal Comn'irinications Commission ("FCC") requirements. Shorild City add new facilities on the City Property in the future, Lessee will not cause measurable electronic or physical interference with City owned and operated equipment that is related to public health and safety and is located on the City Property. Lessee shall reasonably cooperate with current and future users of the City Property. Lessor will not grant a lease to ai'iy parff for use of the City Property if the new use would iriterfere with Lessee's operation of its communications facility. Any future lease of the Site which permits installation of coinmunication equipment shall be conditioned upon not interfering with Lessee's operation of tlie Premises. 4.8.9 Electromagnetic Emissions, Lessee's operations on the Premises shall comply with all applicable federal laws and regulations regarding electromagnetic emissions. After its Improvements are constructed on the Premises, Lessee shall conduct all necessary tests to ensure that its facilities are in compliance withthose laws and regulations. The tests shall be conducted by a licensed engineer, and the results shall be provided to the City. ARTICLE 5 Maintenance, Repairs and Alterations 5.1 General. Lessee shall keep in good order, condition and repair the Premises, and the Itnprovements placed on the Premises. Lessee sliall keep the Premises dean and free of debris. 5.2 . Within ninety (90) days after the last day of the Term, or any Option Term if so extended, Lessee shall surrender the Premises to City in the saine condition as when received, cJean and free of debris, reasonable wear ai'id tear. Lessee shall also remove all Improvements and cables and wires located above grourid or below ground that Lessee placed upon the Premises, and repair any damage to the Premises by tlie iiistallation, maintenance or removal of Lessee's Improvements and any related cables, wires or other equipment, and shall restore the Premises to the same conditions as when Lessee received the Premises from City, reasonable wear and tear. 5.3 City's Rights. If Lessee is in default, subject to City mailing or delivering notice in accordance with Section 20.6 herein and the expiration of any applicable cure periods, City may (but shall not be required to) enter upon the Premises, (except in the case of an emergency, in which case no notice shall be reqriired), to perform obligations on Lessee's behalf and put the Premises and/or Improvements in good order, condition and repair, and the cost, together with (i 8 74211405.1 interest at tlie maximum rate then allowable by law, shall become due and payable as additional rent to City with Lessee's next rentaI i+'istalhnent, provided, however, in the case of a non- emergency, City shall notify Lessee of City's intention to perfori'n Lessee's obligations ten (10) dayspriortoperforminganyworkonLessee'sbehalf. IfnorentalinstallmentisduetoCity,these costs shall become ate and payable withiii thirty (30) days from the date of City's invoice accompanied by supporting doc'imentation for such costs. 5.4 City Repair Obligations. City sliall have no obligation to repair and maintain the Premises nor the hriprovements and facilities. Lessee expressIy waives the benefit of any stati'ite now or hereinafter in effect which woiild afford Lessee the right to malce repairs at City's expense or to teiminate this Lease because of City's failure to keep Preinises in good order, condition and repaua. 5.5 Secuiity Measures. City shall have the right to reqriire a reasonable security 'system, device, operation or plan be installed and implemented to protect the Premises or the hnprovements. Should City, in its sole discretion, require Lessee to install a security system, Lessee agrees to bear the sole cost of any security system, device, operation or plan ,and the installation and implementation. Lessee shall obtain City's prior approval before installing or implementing any security system, device, operation or plai'i. Any security and fencing depicted in 'the exhibits attached hereto have been approved by City, 5.6 Improvements. 5.6.1 Lesseeshallpay,whendue,allclaimsforlaborormaterialsfurnishedorallegedto liave been furnished to or for Lessee at or for rise on the Premises, which claims are or may be secured by any mechanic or material lien against the Preinises or any interest therein. Lessee shall give City not less than ten (10) days' notice prior to the coinmencement of any work on the Premises, and City sliall have the right to post notices of non-responsibility in or on the Preises. If Lessee, in good faith, contests the validity of any lien, claim or demand, then Lessee shall, at its sole expense, defend itself and City against it and shall pay any adverse judgment that may be rendered before enforcement against the City. If City shall require, Lessee shall furnish to City a surety bond satisfactory to City in an amount equal to the contested lien, claim indemnifying City against liability for and holding the Preinises free from the lien or claim. In addition, City may reqriire Lessee to pay City's attorneys' fees and costs in participating in the action if City decides to participate. 5,6.2 Lessor shall submit to the City for the City's approval the plans prior to submitting the Lease to the City for the City's approval. Before construction of any subsequent Itnprovements are coinmenced on the Premises, and before any building materials have been delivered to the Preinises by Lessee or agents, Lessee shall comply with the following conditions or procwe City's written waiver of the conditions specified: 5.6.2.1 Constniction Schedule. A construction schedule approved by Lessee and the City setting forth in detail a description of the Improvements and all steps for construction of the Improvements, and Lessee's best estimate of the date upon wbich each step shall be substantially completed is attached and incorporated herein as Exhibit "D". A construction schedule shall not be required for lilce kind replacement following after initial installatiori. 9 74211405.1 5.6.2.2 Protection of Adjacent Property, Indemnity of the City. Lessee shall protect tl'ie City Property and adjacent propeity against damage resulting from the performance of work rindertaken by Lessee or Lessee's agents, en'iployees, contractors excluding any damage caused by gross negligence:or the willful act of City, and shall indemnify tlie City against all liens or liability arising out of the performance of the worlc or the finnishing of labor, services, materials, supplies, eqriipment or power on behalf of Lessee. 5.6.2.3 . In addition to the insurance coverage otherwise reqr'iired rinder this Lease, Lessee shall maintain worlcers' compensation insurance covering all persons employed in connection with the construction of any Improvements, repair or maintenance activities with respect to wliom death or injury claims could be asserted a.gauist the City, Lessee or the Premises. City may require any tlmd party(ies) performing work at the Premises to maintain workers' compensation insurance as contractor's sole cost and expense at all times when any worlc is in process and sliall othemise conforin to the requirements of this Lease for insurat'ce. 5.6.2.4 Final Inspection. Lessee shall not provide service to its customers from the Improvements in any way without receiving a final inspection of the Improvements from the City. 5.6.2.5 Notice of Chanzes in Plans. Upon completion of any Improvement, Lessee shall give City notice of all changes in the plans and specifications made during the course ofthe work and at the same tiine deliver to City "as built" drawings accuratelyreflecting all changes, provided that no change that substaixtially alters the fiiial plans last approved by the City shall be made withorit the City's prior written approval. 5.7 . The City or its agents, may enter into the Project at all reasonable times during the term of this Lease Agreement for the purpose of deterinining whether or not Lessee is complying with the terms and conditions or for any other purpose incidental to rights of the City. City shall provide Lessee with at Ieast two (2) business days' prior notice and shall have the ability but not the obligation to accompany City dining any such inspection. 5.8 Lessee Access. Lessee may enter into or upon the Preinises during normal business hours, Monday thru Friday from 8 a.m. to 5 p.m. upon reasonable notice to the City. In the event of an emergency, Lessee's access shall be 24/7. Lessee acknowledges that other Iessees and licensees also have rights to access the Premises, and that if multiple Iessees or licensees request simultaneous access, the City may have to delay Lessee's access to the Preinises to accoinmodate all parties. City aclonowledges that off peak maintenance (non-business hotuas) is required approximately once per month. Lessee shall provide 24-horirs' notice to City prior to off peak maintenance except in cases of emergency. 5.9 Lessee Access During Secirity Alert. During times of high security alert by the Homeland Security Advisory System, Lessee must obtain City's consent to access the Project. ARTICLE 6 Indemnity and Insurance 6.1 . ThisLeaseismadeupontheexpressconditionthatLesseeshallindeinnifyand hold harmless the City and its officers, agents and employees against any suits, claims or actions to l" 10 74211405.1 tlie extent arising orit of Lessee's rise of the Premises or from any act permitted, or any onxission to act, in or aborit the Premises or the City Property by Lessee or its agents, employees, contractors or invitees, including, but not liznited to, aiiy injriry or ii'ijutaies to, or death or deaths of, persons or property that may occur, or that may be alleged to liave occurred from ai'iy carise or causes wliatsoever, wliile in, upon, aborit or in any way coiu'iected with tl'ie Premises dwing the ten'i"i of this Lease, or during aiiy holdover tenancy thereof (except where caused solely by the active negligence or wiillful misconduct of City, its employees or agents). Lessee agrees to defend any actions, suits or claims pd pay all reasonable charges of attorneys and all other coats and expenses arising therefrom; and, if any judginent be rendered against the City or any of the other individuals emimerated above in ariy action, except to the extent the judgment arises from the negligence or willfuf misconduct of the City, its employees or agents, Lessee shall, at its sole cost and expense, satisfy and discharge same. 6,2 WaiverofClairris. Lesseewaivesanyclaii'nsagainstCityforinjurytoLessee'sbusinessor any loss of income, for damage to Lessee's property, or for injury or death of any person in or about the Premises or the City Propeity, from any cause whatsoever, except to the extent caused by City's negligence or willful misconduct. 6,3 Insurance. During the term of this Lease, Lessee sliall maintain in full force and affect the following insurance policies: 6.3.I Commercialgeneralliabilitypolicy(bodilyinjuryandpropertydainage);and 6.3.2 Comprehensive automobile liability insurance policy. These policies shall be maintained with respect to employees and vehicles using the Property with coverage amorints and including the required endorsements, certificates of insurance and coverage verifications as defined in Exhibit G'E" attached and incorporated by this reference. ARTICLE 7 Damage, Destruction and Termination 7.1 NonterminationaiidNonabatement. Exceptasprovidedherein,nodestructionordamage to the Premises by fire, windstorm or other casualty, whether insured or rininsured, shalI entitIe Lessee to terminate this Lease, unless Premises are rendered unusable as a cell site. 7.2 Force Majerire. Prevention, delay or stoppage due to strikes, lockouts, labor disputes, acts of God, inability to obtain labor, materials or reasonable substitutes, governrnental restrictions, governinental regulation, governmental controls, judicial orders, enemy, or hostile gove.wnental actions, civil commotion, fire or other casuaIty, and other causes beyond the reasonable control of Lessee, shall excuse the performance by Lessee for a period equal to the prevention, delay or stoppage, except the obligations imposed with regard to rent to be paid by Lessee pursuant to this Lease. Ire the event any work performed by Lessee or Lessee's contractor's results in a strike,' lockout, and/or labor dispute, the strike, lockout, and/or labor disprite shall not excuse the performance by Lessee of the provisions of this Lease. 11 7421 1405.1 7.3 Waiver. City aiid Lessee waive tlie provisions of any statutes which relate to termination of leases when leased propeity is destroyed and agree that such event shall be governed by the terms of this Lease. ARTICLE 8 Taxes 8.1 Personal Property. Lessee shall pay prior to delinquency all taxes, license fees and priblic charges assessed or levied against Lessee or Lessee's estate in is Lease or Lessee's Improvements, trade fixtiires, furnishings, equipment and other personal property. 8.2 Real Property. Lessee shall pay Lessee's share of any increased real property taxes (as defined in Section 8.3 below) which become due and payable by Lessee. Should these taxes become due and payable by the City then on or before the later of ten (10) days prior to tlie delinquency, or three (3)days after the date on whicli Lessee receives a copy of the tax bill and notice of City's determination including documentation reasonably supporting of the determination hereunder tliat the tax has increased due to this Lease and installation of Lessee's antenna. Lessee's liability to pay real property taxes shall be prorated on the basis of a three hundred sixty-five (365) day year to accorint for any fraction or portion of a tax year included in the Lease term at the comuiencement or expiration or earlier termination of this Lease. Lessee is not responsible for taxes related to rental income to City under tis Lease. Lessee specifically acknowledges it is familiar with Section 107.6 of the Califomia Revenue and Taxation Code, realizes that a possessory interest subject to property taxes may be created, agrees to pay any tax, and waives any rights Lessee may have under Revem'te and Taxation Code 107.6. 8.3 Definition. The term "real property taxes" as used herein shall mean: 8.3.1 All increased taxes, assessments, levies and other charges, general and special, foreseen and unforeseen, now or hereafter imposed by any governmental or quasi-governmental arithority or special district having the direct or indirect power to tax or levy assessments, which are levied or assessed against or with respect to (i) value, occupancy, use or possession of the Improvements, (ii) any improvements, fixtures, equipment and other real or personal property of Lessee that are an integral part of the Premises, (iii) use of the Improvements public utilities or energy ivithinthe Premises; 8.3.2 All increased cliarges, levies or fees imposed by reason of environi'nental regulation or other governmental control ofthe prcmises and/or the Improvements, iinposed due to the Improvements installed by Lessee; 8.3.3 Intentionally omitted; and, 8.3.4 All costs and fees (including reasonable attorneys' fees) incirred by City in contesting any increase in real property taxes at Lessee's written reqriest and in negotiating with public authorities as to any real property taxes affecting the Premises as a result of this Lease. If at any time during the Term, tlie taxation or assessment of the Improvements prevailing as of the commencement of this Lease shall be altered, then any tax or charge, however designated, shall be included within the meaning of the term "real property taxes." If any real property taxes are based upon the Improvements, then only that part of such tax that is fairly allocable to the 12 74211405.1 Improvements, as deterinined by City, on tlie basis of the assessor's worksheets or other available inforination, shall be inchided withii'i tlie meaning of the term "real property taxes." ARTICLE 9 Utilities Lessee 'shall pay for all water, gas, heat, light, power, telephoru" and other utilities and services supplied to the Premises, together witli any taxes. ARTICLE 10 Signs Lessee shall not place any signs upon the Premises without prior written consent of City except as required by law. ARTICLE II Assignment and Subletting 11.1 City's Consent Required. Lessee shall not voluntarily or by operation of law assign, transfer, mortgage, sublet or otherwise transfer or encumber all or any part of Lessee's interest in this Lease or in the Preises, without City's prior written consent, which consent shall not be unreasonablywithheld. CitysliallrespondtoLessee'srequestforconsentinatimelymannerand any attempted assigrunent, transfer, mortgage, encumbrance or subletting without consent sliall be void and shall constitute a breach of this Lease. 11,2 Net Worth Requirements. Nomithstanding the foregoing, Lessee may assign or subletthe Premises, or any portion thereof, without the City's consent, to any entity which controls, is contolled by, or is under the cominon control with Lessee, or to any entity resulting from any merger or consolidation with Lessee, or to any partner of Lessee or to any partnership in which Lessee is a general partner, or to any person or entity which acquires all of the assets of Lessee on the City Property, or to any entity which obtains a security interest in a substantial portion of Lessee's aSSetS Any entity listed in this paragraph or its general partner, affiliate, or parent company shall have a net worth of not less thari Ten Million Dollars ($10,000,000) as evidenced by publicly available financial or investor related statements or docunentation, or by a net worth letter from an officer of a publicly-taded affiliate of Lessee. 11,3 No Release of Lessee. No subletting or assignment as approved by City shall release Lessee of Lessee's obligation or alter the primary liability of Lessee to paythe rent and to perform all other obligations to be perfoimed by Lessee hereunder. The acceptance of rent by City from any other person shall not be deemed to be a waiver by City of any provision hereof. Conserit to one assigent or subletting shall not be deemed consent to any subsequent assignment or subletting. In the event of default by any assignee of Lessee or any successor of Lessee in the performance of any of the terms hereof, City may proceed directly against Lessee without the necessity of exhausting remedies against said assignee. 11,4 Right of First Refusal. If Lessor elects, during the Term to grant to a third parly by easement or other legal instrument an interest in and to that portion of the Property occupied by Lessee, or a larger portion thereof, for the purpose of operating and maintaining communications 13 74211405.1 ;, 1. facilities or the management tliereof, with or witliorit an assigninent of this Agreement to such third paity, Lessee shall have the right of first refusal to meet any bona fide offer of transfer on the same ter'ins and conditions of such offer. If Lessee fails to meet sucli bona fide offer witlm thirty (30) days after written notice thereof from Lessor, Lessor may grant the easement or interest intlie Property or portion thereof to such third person in accordance with the terms and conditions of such third party offer. ARTICLE 12 Defaults; Remedies 12.1 Defaults. Tlie occurrence of any one or more of the following everds shall constitute a material default or breach of this Lease by Lessee: 12.1.1 TlieabaiidonrnentofthePremisesbyLesseeasdefinedbyCivilCode§1951.3. 12.1.2 The failure by Lessee to malce any payment of rent or any other payment required to be made by Lessee hereunder, as and when due, where the faiJure shall continrie for a period of ten (10) business days after receipt of written notice from City to Lessee. 12.1.3 The failure by Lessee to observe or perform any of the covenants, conditions or provisions of this Lease in any material respect to be observed or perforined by Lessee, other than those described in Section 12.1(B) above, where the failure shall continue for a period of thirty (30) days after receipt of written notice from City to Lessee; provided, however, that if the nature of Lessee's default is that more than thirty (,30) days are reasonably required for its cire, then Lessee sliall not be deemed to be in default, if Lessee commenced cure within the thirty (30) day period and thereafter diligently prosecutes the cure to completion. 12.1.4 ThemakingbyLesseeofanygeneralariangementorassigunentforthebenefitof creditors; Lessee's becoming a "debtor" as defined in 11 U.S.C. §l.Ol or any successor statute thereto (iu'iless, in the case of a petition filed against Lessee, it is dismissed within sixty (60) days); the appointment of a banlauptcy trustee or receiver to take possessioxi of all or substantially all of Lessee's aSsets located at or 011 the Premises or of Lessee's interest in this Lease where possession is not restored to Lessee within thirty (30) days; or the attachment, execution or other judicial seizure of all or substantially all of Lessee's assets located at the Premises or of Lessee's interest in this Iease, where seizure is not discharged witMn thirty (30) days. 12.2 Remedies. In the event of any material default or breach by Lessee, City may at any tie thereafter, folloiving any notice required by statiite, and without limiting City in the exercise of any right or remedy wliich City may have by reason of default or breach: 12.2.1 Terminate Lessee's right to possession of the Premises by any lawful means, in which case this Lease shall terminate m'id Lessee shall immediately surrender possession of the Preinises and Itnprovements to City. Inthat event, City shall be entitled to recover from Lessee all damages incurred by City by reason of Lessee's defarilt inctuding, but not limited to, the cost of recovering possession of tl'ie Pren'ffses, experises of reletting, including if necessary, removal of Improvements and restoration of the Pre.ises, reasonable attorneys' fees, the worth at the time ofthe award ofthe unpaidrentthathad been earned atthe time oftermination of tis Lease andthe worth at the time of award of the ai'no'i'int by which the unpaid rent for the balance of the term after 14 74211405.1 the tie of such award exceeds the amorint of rental loss for the sai'ne period that Lessee proves could be reasonably avoided. 12.2.2 Maintain Lessee's right to possession, in which case this Lease shall continue in effect wliether or not Lessee shall liave abandoned the Premises. In that event, City shall be entitled to enforce all of City's rights and remedies under this Lease, including the right to recovei rent as it becomes due. 12.2.3 Pursue any other remedy now or hereaffer available to City ruider the laws or judicial decisions of the State of California. 12.3 No Relief from Forfeihire After Default. Lessee waives all rights of redemption or relief :a'om forfeiture inder California Code of Civil Procedure §§1174 and 1179, and any other present or Aiture law, in the event Lessee is evicted or City othervvise lawfully takes possession of the Premises by reason of miy default or breacli of this Lease by Lessee. ARTICLE 13 Termination of Lease 13.1 Termination by Lessee. Except as provided otherwise herein or by applicable law, Lessee may terminate this Lease for cause upon the giving of not less than thirty (30) days written notice to City if any of the following occur: 13.1.1 The failure by City to observe or perform any of the covenants, conditions or provisions of tbis Lease in any material respect to be observed or perfornied by City, where the failtire shall continue for a period of thirty (30) days after written notice from Lessee to City; provided, however, that ifthe natiire ofthe City's defarilt is such that more than thirty (30) days are reasonably reqriired for its crire, then City shall not be deemed to be in default, if City commenced to cure.within athirty (30) day period and thereafter diligently prosecutes sucli cure to completion; 13. 1.2 Lessee fails to obtain or loses any permits necessary for operation of the Premises as a cellular telephone comi'nunications facility. 13.1.3 Lessee determines that the site is inappropriate for technological reasons, beyond its control; inchiding but not limited to signal interference. 13.2 Termination by City. Except as otherwise provided or by applicable law, City may terminate this Lease for cause ripon giving ty (30) days written notice if any of the following OCCllr: 13.2.1 The City Council of the City of Cupertino determines through credible scientific evidence collected with regard to the cellular telecommunications facility operated at the Premises, that the facility is a threat to public health or safety. The City shall provide at least 30-days' priorwrittennotice to Lessee ofthe intentto revoke thepermit and Lessee sl'iall have a fiill and fair opportunity to provide contradictory scientific data priorto City Council action; or 13.2.2 Lessee loses or fails to satisfy any condition of any permit required by City necessary for operation of the Premises as a cellular telephone cornrnunication facility. 15 74211405.1 13.3 Condeinnation of Leased Premises. Should alI or part of the Premises be taken by any public or quasi-priblic agency or entity under tlie power of eminent domaiii under the term of this lease: 13.3.1 EitherCityorLesseemayterniinatethisLeasebygivingtlieotherthirty(30)days' pripr written notice of termination; and 13.3.2 Anydamagesandcompensationawardedorpaidbecauseofthetakingshallbelong to the City, except for aiuorints paid Lessee for relocation expenses or for damage to property owned by Lessee and the value of the unexpired term of this Lease. ARTICLE 14 City's Liability The term "City" as used herein, shall mean the City only while the City is the owner of the feetitleoftliePreinises. Intheeventofanytransferoftitleorinterest,theCity(andincaseofany subseqrient transfer, then the grantor) shall, after the date of such transfer, be relieved from all liability with respect to its obligations hereunder occurring after the transfer date, provided that any funds in the hands of City at the time of transfer, in which Lessee has an interest, shall be delivered to the City's grantee. ARTICLE 15 Interest on Past-Due Obligations Except as expressly provided, any ai'nourit due City when not paid when due shall bear interest at the lesser of ten percent (10%) per year or the maxirnui'n rate allowable by law from the date due. ARTICLE 16 Holding Over If Lessee remains iii possession of tlie Preises or atiy part after the expiration of the term or option term tlie occupancy shall be a tenancy from month to month with all the obIigations of this Lease applicable to Lessee and at a monthly rentaI obligation of 250% of the Base Rent in effect at the time of expiration, ARTICLE 17 City's Access City and City's agents shall have the right to enter the Premises for the purpose of showing to prospective purcliasers, lenders or lessees, and making alterations, repairs, improvements or additionstothePrernisesasCitymaydeemnecessary. CityshallprovideLesseewithatleastfive (5) business days' prior written notice and Lessee shall have the ability but not the obligation to accompany City duiing any such inspection. 16 74211405.1 ARTICLE 18 Quiet Possession Upon Lessee's paying rent for tl'ie. Pren'iises and observing aixd perfoiming all of the covenants, conditions and provisions on Lessee's pait to be observed and performed, Lessee shall have quiet possession of the Premises for thp entire term sribject to all of the provisions of tlffs Lease. ARTICLE 19 Easements City reserves to itself, the right, from time to time, to grant such easements, rights and dedications outside of tlie Premises and subject to the terms of this Lease, that City deems necessary or desirable, and to cause the recordation of parcel maps and restrictions, so long as the easements, rights, dedications, maps and restrictions do not materially interfere with the rise of the Premises by Lessee. Lessee sliall sign any of the aforementioned documents upon request of City and failure to do so shall constitute a material breach of this Lease. ARTICLE 20 General Provisions 20,1 . The invalidity of any provision of this Lease as determined by a court of competent jurisdiction shall in no way affect the validity of any other provision. 20.2 Time of Essence. Time is of the essence undcr this Lease. 20.3 Additional Rent. Any monetary obligations of Lessee to City under the terms of this Lease shall be deemed to be rent and all references herein to "rent" shall be deemed to include the Base Rent and all other sims paid or payable,by Lessee to City. 20.4 Entire Agreement, Modification. Tbis Lease contains all agreements of the parties with respect to any matter mentioned herein. No prior agreement or understanding shall be effective. This Lease may be modified in writing only. 20.5 No Warranty. Except as otherwise stated in this Lease, Lessee hereby acl<nowledges that neither the Citynor any employees or agents ofthe City has made any oral or written warranties or representations to Lessee relative to the condition or use by Lessee of the Premises and Lessee aclmowledges that Lessee assumes all responsibility regarding the Occupational Safety and Health Act, the legal use and adaptability of the Preises and compliance with all applicable laws and regulati'ons in effect d'ciring the term of this Lease. 20.6 Notices. Any notice required or peimitted to be given, shall be in writing and may be giveri by personal delivery or by first class mail, and if given personally or by mail, shall be deemed sufficiently given if addressed to Lessee or to City at the address noted below: 17 7421 1405.1 GTE Mobilnet of California Liinited Partnership, d/b/a Verizon Wireless 180 Wasl'ffngton Valley Road Bedrninster, New Jersey 07921 Attention: Network Real Estate Re: DeAnza Stevens Creelc David Brandt City Manager, City of Cupertino 10300 Torre Avenue Cupertino, CA 95014-3202 With Copy to: Randolph Stevenson Hom, City Attorney 20410 Town Center Lane, Suite 210 Cupertino, CA 95014-3255 Each notice shall specify the provision pursuant to which it is given. Either party may specify a different address or contact person. A copy of all notices reqriired or peri'nitted to be given to City hereunder shall bc concurrcntlytransmitted to the party at the address as City designated by notice to Lessce. Notice given under this section shan be deemed in compliance vvith applicable statutory notice requirements, including Code of Civil Procedure §1162. 20,7 Waivers. No waiver by City or lessee of any provision shall be deemed a waiver of any other provision or of any subsequent breach by City or Lessee of the same or any other provision. City's or Lessee's approval of any act shall not be deemed to render unnecessary obtaining oftheir consent of any subsequent act. The acceptance of rent by City shall not be a waiver of any preceding breacli by Lessee of a provision, other than the failr'ire of Lessee to pay the particrilar rent so ac6epted, regardless of City's 1<nowledge of the breach at the time of acceptance of rent. 20.8 Cumulative Remedies. No remedy or election under this Lease shall be deemed exchtsive but shall, wherever possible, be cumulative with all other remedies at law or in equity. 20.9 Choice of Law. This Lease shall be governed by tlie laws of the State of California. The language of all parts of this Lease shall be construed with its fair meaning and not strictly for or against the City or Lessee. 20.10 Condition to Effectiveness of Lease. The approval of the City Coiuicil of City constitutes an express condition precedent to the effectiveness of this Lease. 20.11 Attorneys' Fees. If either party brings an action to enforce the terms or declare rights hereunder, the prevailing party in any such action, shall be entitled to its reasonable attorneys' fees and court costs to be paid by the other party. 18 74211405.1 20.12 Brokers. Each party represents that it is has not had dealings witli any real estate broker or finder, with respect to this lease in any maiu'ier. Each Party sliall liold harmless the other party :irom all damages resulting from any claims tliat may be asseited against the other paity by any brolcer, finder, or other person with whom the Indemnifying Paity has or purportedly has dealt. 20,13 . Each individual executing this Lease on behalf of Lessee and City represerits and warrants that he or she is duly ai'ithorized to execute and deliver this Lease on behalf of said Pane. 20,14 Non-Liability of Officials and Employees of tlie City. No official or employee of City shall be personalIy liable for any default or liability under this agreement. 20.15 Non-Discriinination. Lessee covenants it shall not discrimiiiate based upon race, color, creed, religion, sex, marital stahis, age, handicap, national origin or ancestry in any activity tmder this lease. 20.16 hidependent Contractor. It is agreed that Lessee shall act and be an independent contractor and not an agent nor employee of City. 20.17 Conflict of hxterest. Lessee shall at all times avoid conflict of interest or appearance of conflict of interest in performance of tis agreement. 20,18 Memorand'im of Lease. Following execution of tlffs Lease, either party, at its sole expense shall be entitled to record a Memorandum of Lease in the official records of Santa Clara County. Upon termination or expiration of this Lease, Lessee shall cxccutc and record a quitclaim deed. 20.19 Estoppel Certificate. Lessee shall, from time to time, upon at least thirty (30) days receipt of prior written notice from City, exegute, acla'iowledge and deliver to City a statement in writing: (a) certif%ng this Lease is uru'nodified and in full force and effect, or, if modified, stating the nal-tire of the modification and certifying that the Lease, as modified, is in full force and effect, and the date to which the rentaI and other charges, if any, have been paid; and, (b) acla'iowledging that there are not to Lessee's knowledge, any defaults, or stating if any defaults are clainied, any statement may be reIied upon by any prospective purchaser or encumbrancer of the City Property. [Signature page follows] 19 74211405.1 CITY OF CUPERTINO, CALIFORNIA APPROVED AS TO FORM: enson Hom City Attorney AGTTBs>T,c,A'krt'<A' ItQt y)5 GTE Mobilnet of California Limited Partnership, d/b/a Verizon Wireless Cellco Parh'iership General Paitner B7:Phil E6cutive Director - Network Date:3/7 /2-/!7 "Lessee" David Brandt City Manager 20 74211405.1 Exl'iibit A Property [See attached] 21 74211405.1 Exhibit A L Property Real properLy iri the City:of Cupertino, County of Sarita Clara, State of California, described as follows: PARCEL ONE: LOT 7, AS SHOWN ON Tt-IAT CERTAIN MAP ENTITLED TRACT NO. 3743 CUPERTINO TOWN CENTER, WHICH F"IAP WAS FILED FOR RECORD IN THE OFFICE OF THE RECORDER OF THE COUNTY OF SANTA CtARA, STATE OF CALJFORNIA ON OCTOBER 16, 1%4, JN BOOK 186 0F MAPS PAGE(S) 36 AND 37. PARCEL TWO: PARCELS A, El, C & D, AS SHOWN ON THAT CERTAIN PARCEL MAP ENTITLED, "PARCEL MAP, BEING ALL OF LOT 4, TRACT N0. 3743, CIT!' OF CUPERTINO", WHICH PARCEL MAP WAS FILED FOR RECORD IN THE OFFICE OF THE RECORDER OF THE CO[lNTY OF SANTA ClAU, STATE OF CALIFORNIA ON MARCH 7, 1974 m BOOK 337 0F MAPS, AT PAGE IL APN: 369-31-033 Exlffbit B Premises [See attached] 22 74211405.1 Tl)lm AVDIIIE .-_____ _ _ _ _ _ __________ _ ,.. Ill ' 'N - - - - - - ' - - - - - " % I tl li li li 1 , 'a' i a' : : I l___xeo 1 I .I , l_ _ _J ,, t ,y I MV. : ,4 =F_Ej=E=EE=EEj_; ='====3H=="-' i ta" .,,,.:,,,., -=, = %)S)%l - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - {!=r -"i - -' s -, 'ii:iiii:'! 'i!i:iliiiiiii!ii:i!.:iiii B'll""%a'g!""'la:"::al:al"\'g:o"aaOa"""'aa :=i""---="!gsa-'-a"::,:""=si"-q:'gi='a="i":a"oa:"""a"<:=a""iexo! "a=Ba=ls==ie_.teBaol'#gTi-:s"'g!uh!>agaaoaaii%a.o%!N a Uffif.j V a 9 gg@ % :L !f -:. . i ,!) r- N- ,iei,a6 f,h"a;,:: :=a':_a:Qq,g'G!:. ,J5:=a,== " 7 . aa lm;5,\al!,,g!a=%gIb . 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"' a (') I % DH.VJZA STEVENS CREEK 1(1800 TORRE AVENUE rUPERTINO, CA 1)6014 PLOT PLIIN AND !jTE TOPCI('IIlAPlfi I VON7499wireless I I;,,i l_.-l 7_i€ ki;;;"Aii; -PI;ttj )(i+har4 I un4 ;;;;l;'- ' "--nashjn!;-mnl W 7_[ !;sad';tin Ilnl nyaihmn I-:,i'.- .,., I I m.ir*=,;r i II 7_[-l Tt-av- Wi " "i(l-fi' }i+i I++lt)lii jj n__ !IV;;-iii.-ki;ii l_2i k i -II ffi'1 l_ l(;;;_i-,'Aii2_O_B_j i- -- 11V5 '::ljaskm r; [ ' aaj : ._lj T;va; -k;;F_-Ul 7 7; ;- :y . :- 0 :, , , _, I Al i " ;!i 'b PLOTPIANANII tti SITETOPO(iRAP)ff [[i:fl Exl'nbit C Site Plans [See attached] 23 74211405.1 l,__@_ _ __-/ [)EANZA STEVENS CREEK ffik e-- (6pi[i venzon' ;o;H;;,s;;zi;u;5 ffr5z':'u,'aa'aa""""-"- i?.W'.!',, ";Ms,)'a""a'-tH("n"[: OVERALL SITE PLAN #"T"'af%:'5a-ao-L-ag,., ; y,zy(;g41y5nH,,j,,";'a"'o:lPa-a'ao SNO11VA313 lD3t'OHd 3_gj a- i' 'a? ..,..,..=:i;ff,jAmdm 11096 Vl 'o)fu)atln:) :inmhv isuoi oogot .ljG;!IJ9A (B%(,,_< z'!,-.9i'. (: m:f5jir?5-99'.iim q I cgff6siiswva l""S"aa- II I W'a""""" 'i & '& & .__. .-- & - ) I -i< ii< :i'gg, %di'a a: bl g,i :, ?;i "'!b" B=a !"""aa" !Th. i, ,7J01"e "ai': -!a', ,:u a"'jut !'_s_.g_ ta !2o m. 'E"::a f-"-;, "a"",5uH, .J"m,20Q= a'a-a_=o !b==:ac W!=a= H aTh'B"" ':llf""'a':f; 'l "'I :.l :ffi":2o:=": !a"" "0,'i[ 'p's !Ed t'i'I'a'4! " 'L%)i %%ffi "ffiz8a ;$, $:y@"'ffl" a -_ [ll[lf_UtlllUl_) I I -imiTffnn1) Tli'lTTI'm!r:1-I T']JTlI 1.u t 2!]) 1iJ! iI I i I I H= (,qj 1]I)i. I 0 I ( f [::. X :][-n i p g :l i i I ! i i l )} i ll Ll IS _M ."a %a '+:r ""l' %i "-i":l , ,!,Cji,,)a'd 19- ':_"",,:I;'-_ _:_ ,i-"-1i] f [R[1 1 f nr f t n f r) r:A'J ':16'""lj "U:a,"'4'!-B:,!"i !,Qll":,M,l.a-z.Ms' /! .1I ill Th [ h-ar F_1:.,l-b a!: ?_ ?' J, 11fa!l] Fi JA(. 'iliV [lffl .d "'T i Iw ., g m g I ",. & mJ!.)i' mW ;Ud I :a U.8=ffi!< IP!,, 0 -!:y,; i % :ffiffl!'i=! h '- I 8' b @ I )'ffl0 I-!I i a,,,i I €_b I (!,IE! I ' QXG I ' ii !',,d i J"'M. l"@ffi\e i t I :!II l u 11l!l I:id'l ..l..0i: IA i Y!8:l'il I /T',. i!la [!Q:a_tt!!Il_.: it_ M II '-l ffl _____________l I s !!:ffl '!I":"i:'o:'gf"ffi"i."";=5i I d" i %j i Ill iim- I gb i ffl,p. I :!"i"ffl'!s :;l I b tv m" W !g ""'2N olffig: """a"""'!!"!" t, o=o l,, BaA , ;= ""':";it rgH ffi.o_:,ffi\:ja.i;! :!"..""'a"i'ibs,,_6xa"'!:!a"',o!":,!z i i l L,_ .j J,-=.sittna._-rb\'w lxX%}k]"l r'(\r'!l '!A'-";'<-i Mi'h'?h I t'a..A-_r } 'l 'y '-l 'I" Illi 13L _[lJif'l :!J"':"':J&" f,_"'%,"'J=' t!..l'Qaa""'(W"' X X N 't J i m ; ;EG ;'l'g ff[ a;:; 1111 llul!.ffi =j= 'am"'r"""',:W("""4a"">").aa"a"""h.:':%Q"'a'!'j',;o"a&NX'*'a'a'Al":'a';M"a"-"""'""""'o2"-'""-'_,___'7'. i i ,l * (a:a" 17 -ll'a lq%%jlifi'l ;li,fi%'i. L'-. g.-lIt-l;7C.:15"'I'.f;;'-l'A/..J 'v.6:.h.'iJ - ,1. l :___ ""l.z__,_________,'.... "'(5;;=J 4,1:,:,2 2,, =4f7'2. _',"", _-y ;' g E G,I!(Bi"i 'la lh"u 'Tf" ,i. --. .. .1 Ij..ll.L.llllLI I =;.r - I,yz:5a'e t:W6.X> ?W" ( ('%y i TmmTff.l .A'_ ;r_ d i_ .1!z\lll !iTh'.5 .1 /!l .t!e- .1 t "j, j.7; l!a'(V _l i Q _ _ 17I I I (//' 'T'," 9ffl"1 l?l IQ Z *j4 .i' u a,, W:'!bu €igWg:_ffl I,,z=i: v, "i=ati I :l J F li Li [ r [[l') r i ]fl lF[1 [ L F[ l 17 Ll HB:' fg a!' ffl' l- ii il ' IJ ""' } ' ! gm Exlubit D Construction Schedule [See attaclied] 24 74211405.1 3tteName: DeAnzaStevensCreek l 3eneralContractor: Supervisor'sNameandContactNumber: I l I Week 1 Week2 i'Week 3 Week4 l Week 5 Week 6 Week7 I ACTIVITY .!_l!!L T W'_T"IIF as_J,Js M'T'W'Ll F's S'M T W'T'F'Js S'M'J !!l !J F's S'M'T W'T'F s _J M'T W'T'F s__J. PreCon Meeting l Comp leted Previous W-iek II I I II DTeiglcAoleCrt/OnUdtiuli71tsMarks 1.Comp stt-:' F=evicius Waek I 'I 'I I!'J!Ml 'N!a ill immn I I I Electrical Conduits i rmiswramtm aiaaxmm I I i' Tower Foundation 1,I I !l i l I 1, I Equipment Foundation 'I m.aabRfflias I I I Generator Pad l I taxs I l' TewerSet i'I wam wmat aa I I l' Equipment Set ;'I am I I .I I l Coax Cable Tray/Conduits '1 I W s m m I I 'I Antennas & Coax I',I I s s aa ff s I 'I Site Electncal II I n s s ffi I I I I I' Site Grounding II I s m I m m m am mffi!!l I 'l Landscape & Irrigation I,I s wa I I I Building Final i I I I s I I I I I I 'l I I II ,l I I I I I ,l I I I I I Exl'fflbit E Ins'irance Requirements Lessee shall prirchase and maiiitain the insurance policies set forth below at its sole cost aiid expense. Sucli policies shall be maintained for the fiill term of this Lease. The term "City" shall include the duly elected or appointed council members, commissioners, officers, agents, employees and volunteers of the City of Cupertino, California, individually or collectively. " 1.MINIMUM SCOPE AND LIMITS OF REQUIRED INSURANCE POLICIES. On or before the coinmencement of the terms of this Lease, Lessee shall furnish City with certificates showing the type, amount, class of operations covered, effective dates and dates of expiration of insrirance coverage in compliance with this Exhibit. These certificates, which do not limit Lessee's indemnification, shall also contain substantially the following statement: "Shorild any of the above insurance covered by this certificate be canceled or coverage reduced before the expiration date thereof, Lessee affording coverage shall provide tlmty (30) days' advance written notice to the City of Cupertino, "Attention: City Manager." Endorsements including the City as additional insured shall be submitted with the insurance certificates. The following policies shall be maintained with iiisurers autliorized to do business in tlie State of California and shall be issued rinder forms of policies satisfactory to the City: (I) Workers' Compensation: Statutory coverage as required by the State of California. (2) Liability: Corninercial general liability coverage in the followiiig minimim limits: Bodily Injury:$1,000,000 each occurrence $2,000,000 aggregate - all other Property Damage: $500,000 each occurrence $1,000,000 aggregate If submitted, combined single limit policy with aggregate limits in the amounts of $2,000,000 will be considered equivalent to the reqriired minimuin limits shown above. (3) Automotive: Comprehensive automobile liability coverage in the following minimum limits: Bodily injury:$500,000 each occurrence Property Damage:$500,000 each occurrence or 25 7427 1405.1 Combined Single Lii'iut:$1,000,000 each occurrence 2.SUBROGATION WAIVER: Lessee agrees that in the event of Ioss due to any of the perils for wbich it has agreed to provide comprehensive general and automotive liability insurance, Lessee shall loolc solely to its insurance for recovery. Lessee l'iereby @rants to City, on behaIf of any insurer providing comprehensive general and aritomotive liability insurance to either Contractor or City with respect to the services of Contractor herein, a waiver of any riglit to subrogation which any insurer of Lessee may acqriire against City by viitue of the payment of any loss tuider tlie insurance. 3.ABSENCE OF INSURANCE COVERAGE. City may direct Lessee to iinmediately cease all activities witlirespectto this Lease if it determines that Lessee fails to carry, in full force and effect, all insurance policies with coverages at or above the limits specified in this Lease. Any delays or expense caused due to stopping of work and chaiige of insurance shall be considered Lessee's delay aiid expense. At tlie City's discretion, under conditions of lapse, City may purchase appropriate insurance and charge all costs related to such policy to Lessee. 4.PROOF OF INSURANCE COVERAGE AND COVERAGE VF,RIFICATION. A Certificate of Instiraiice, ox':i an Accord form, and completed coverage verification shall be provided to City by each of Lessee's insurance companies as evidence of the stipulated coverages prior to commencement of this Lease, and ani'iuaIly thereafter for the term of this Agreement. All of the insurance compariies providing insurance for Lessee shall have, and provide evidence of, a Best Rating Service rate of A VI or above. The Certificate of hisurance and coverage verification and all other notices related to cancellation or non-renewal shall be mailed to: City Clerk City of Cupertino 10300 Torre Avemie Cupertino, CA 95014-3202 26 (l 74211405.1