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
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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
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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
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Site Plans
[See attached]
23
74211405.1
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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
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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
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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