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00-072 Antenna Site Lease, Nextel (now T-Mobile) / TowerCo, 10555 Mary Avenue 19925 Stevens Creek Blvd., Suite 100 , . Cupertino, CA 95014-2358 ,. Phone: 408-833-6246 • •• r•a AN. Fax: 408-540-1210 Gary M. Baum, Esq. ..,; E-mail: garybaumlaw @gmail.com Law Offices of Gary M. Baum MEMORANDUM FROM: Gary M. Baum, Special Counsel /0"---- TO: Rick Kitson, Public & Environmental Affairs Director CC: Colin Jung, Chad Mosley, Teresa Zueger,Timm Borden SUBJECT: Nextel/Sprint/T-Mobile/Tower Entity 7/TOWERCO ASSETS LLC Cell Site Lease— 10555 Mary Avenue(Corporation Yard) Summary and Next Step DATE: July 1,2010 Tenant: Original Lessee: Nextel assigned to Sprint/Nextel then assigned to Tower Entity Tin 2008 and then to TOWERCO ASSETS, LLC also in 2008 Tenant Address and Contact information: Tower Co, 5000 Valleystone Drive, Suite 200, Cary,N.C. 27519, Sheneshia Fitts, 919-469-5559 Approved by Council: June 19, 2000 Permit Modification: Use permit modified by Planning Commission September 25, 2001 to delete the requirement to remove Pac Bell Wireless monopole and to allow co-location on an approved antenna tree pole with a different wireless company. Lease Executed: About June 14, 2000 Lease Number: SF04551A Lease Address: 10555 Mary Avenue, Cupertino Lease Term: Initial term 5 years starting December 31, 2000 (date may be earlier if a building permit was issued before this date, but it appears doubtful). The lease can be renewed at the sole discretion of lessee for 2, 5 year periods for a total lease term of 15 years. At the end of the 15 year term, December 31, 2015 the lease terms must be renegotiated. Rental Amount: Base Rent is $1850.00 monthly. This amount increases by 5% each year. As of 1/2008 the rent amount was 2532.78. Permitted Use: See paragraph I A. "The Premises may be used by LESSEE for any lawful activity in connection with the provision of mobile/wireless communication services, including MEMORANDUM FROM: Gary M. Baum,Special Counsel TO: Rick Kitson,Public&Environmental Affairs Director SUBJECT: Nextel/Sprint/T-Mobile/Tower Entity 7/TOWERCO ASSETS LLC Cell Site Lease—10555 Mary Avenue(Corporation Yard)Summary and Next Step DATE: July 1,2011 without limitation, the transmission and the reception of radio communication signals on various frequencies and the construction, maintenance and operation of related communication facilities." Notice: Tenant—See above, Tower Co Notice: Director of Public Works, City of Cupertino, 10300 Torre Avenue, Cupertino, CA 95014 Rent Payments to: Department of Finance, City of Cupertino, 10300 Torre Avenue, Cupertino, CA 95014 Assignment: See paragraph IV.A.2 Tenant may assign following Landlord's written consent which shall not be unreasonably withheld. Next Step: 1. The City should make sure to calendar the 2015 lease expiration date as it will be a good opportunity to obtain both a lease increase and modern lease terms more favorably to the City. Negotiations could start in 2014. It should be noted that the 5% annual increase in lease amount is a very good deal for the City. Attached to this memo is the Memorandum of Agreement providing formal notification of the latest transfer and a copy of the lease. Please contact me if I can provide additional interpretation of this lease. cc: Carol Korade, w/o attachments Antenna Site Lease Agreement between the CITY of Cupertino and Nextel of California, Inc., a Delaware Corporation, d/b/a Nextel Communications This Antenna Site Lease Agreement ("Lease") is executed by and between the CITY of Cupertino, a municipal corporation, hereinafter called"CITY" and Nextel of California, Inc., a Delaware corporation, d/b/a Nextel Communications, hereinafter called"LESSEE." I. DEMISED PREMISES CITY hereby leases and LESSEE leases from CITY a portion of that certain real property situated in the CITY of Cupertino, State of California, commonly known as Cupertino Service Center("Site") described and delineated as specifically shown on Exhibit A attached hereto, consisting of approximately six hundred (600) square feet of land. Said real property is hereinafter called the "PREMISES" and is described in Exhibit B attached hereto. A. PERMITTED USE The PREMISES may be used by LESSEE for any lawful activity in connection with the provision of mobile/wireless communication services, including without limitation, the transmission and the reception of radio communication signals on various frequencies and the construction, maintenance and operation of related communication facilities. LESSEE shall not use the PREMISES for any activity or in any manner which would tend to lower the character of the PREMISES, or in such a manner as to create any nuisance which disturbs, interferes with, or annoys any other neighboring person or entity. B. CONSTRUCTED IMPROVEMENTS It is contemplated that LESSEE shall construct upon the Premises a telecommunications facility which shall consist of a ten foot by twenty foot equipment shelter in which Lessee shall place its communications equipment. Before any work of construction, alteration, or repair is commenced on the PREMISES, LESSEE shall comply with all of the following conditions and provisions unless CITY's written waiver is first obtained: 1. All new structures shall first comply with CITY's applicable development standards and review process, including review and approval of required conditional use permits by the Planning Commission or CITY Council as appropriate. 2. LESSEE shall notify CITY in writing of LESSEE's intention to commence any work of improvements at least five (5) working days prior to commencement of such work. The notice shall specify the approximate location and nature of the intended improvements. CITY shall have the right to post and maintain on the PREMISES any notices of non-responsibility provided for under applicable law, and to inspect the PREMISES in relation to compliance with this Lease, other permits or the construction at all reasonable times. 3. LESSEE shall secure and deliver to CITY, care of the Public Works Department, adequate evidence of compliance with all applicable building codes, ordinances, regulations, and requirements for all permits and approvals, including but not restricted to grading 1 Cop1 permits,building permits, zoning and planning requirements, and approvals from various governmental agencies and bodies regulating water, sewer, and any other utility or improvement on the Site. 4. LESSEE shall provide required bonds or other security securing completion of any new structures to be constructed upon the Site,pursuant to section I(B)(5) of this Lease, and shall furnish CITY, care of the Public Works Department, with evidence of said security prior to undertaking any such construction on the PREMISES. 5. Prior to any work being conducted upon the Premises, LESSEE shall have provided to the CITY a bond or Certificate of Deposit as a security deposit in the amount of ten thousand dollars ($10,000.00) to cover the costs for the removal of LESSEE's equipment in and upon the PREMISES and any repairs that may be required to the PREMISES which are the responsibility of the LESSEE to repair under this lease. The CITY shall have the right to draw against the deposit in the event of a default by LESSEE or to cover the costs for the removal of the encroachment and any repairs that may be required to the PREMISES in the event that LESSEE fails to meet and fully perform any of its obligations hereunder. Within ten days of receipt of written notice from the CITY, LESSEE shall renew or replace such sums of money as shall bring the security deposit current. No release of the bond or certificate of deposit held as a security deposit shall be made except upon approval of the CITY, in accordance with California law. LESSEE agrees that the bond or certificate of deposit shall be held in full force and effect for the Term of this Agreement. The Security Deposit shall be released by the CITY upon completion of the removal of the encroachment and any repairs necessary to restore the PREMISES to their original condition as of the Commencement Date of the lease excepting reasonable wear and tear beyond the control or without the fault or neglect of the Lessee. The deposit shall be released thirty (30) days after the CITY Engineer's inspection and acceptance of the work. 6. Once any approved work of improvement is begun, LESSEE shall diligently prosecute completion of said work or construction. All work shall be performed in a good and workmanlike manner, and shall substantially comply with plans and specifications approved by CITY and as required by this Lease. C. SOIL CONDITIONS CITY makes no covenants or warranties respecting the condition of the soil or subsoil or any other condition of the PREMISES that might affect LESSEE's ability to construct the monopole antenna upon the PREMISES. D. UTILITY INSTALLATION ACCESS CITY grants to LESSEE the right to install utilities, for the purpose of serving the PREMISES only,which may be, in CITY's sole opinion, reasonably required. 2 II. TERM OF LEASE A. COMMENCEMENT AND TERMINATION The term of this Lease (Term) shall be five (5)years commencing with the issuance of a local building permit allowing LESSEE to construct its mobile/wireless communications facilities on the PREMISES, or December 31, 2000, whichever is earlier(hereinafter referred to as "Commencement Date"). At the option of LESSEE, the term of this Lease may be renewed for successive five-year periods of time (hereinafter referred to as "Renewal Term"), but in no event, shall the Lease be extended for more than two Renewal Terms without the negotiation and execution of a new lease. Not withstanding the above, the CITY may terminate the lease prior to the expiration of its term or any Renewal Term, under the following circumstances: 1. If LESSEE is in material breach; 2. If the CITY is required by federal, state or local law to regain possession of the PREMISES; 3. If the CITY no longer utilizes the Site as a city facility. Upon a breach or default of any of the terms or obligations of this LEASE by LESSEE, the CITY shall serve written notice upon LESSEE reasonably describing the breach or default. If LESSEE fails to cure a monetary breach or default within thirty (30) days or a non-monetary breach within sixty (60) days this LEASE shall be subject to termination at the option of the CITY. The CITY shall be entitled to exercise all rights and remedies hereby reserved under this LEASE or made available under applicable laws. Termination of this LEASE by the CITY shall constitute the withdrawal of any consent or authorization of CITY for LESSEE to perform any construction or other work under this LEASE excepting only that work necessary to remove all equipment and to repair the PREMISES to their original condition existing at the Commencement Date of the LEASE, reasonable wear and tear beyond the control or without the fault or neglect of the LESSEE excepted. LESSEE may terminate this LEASE at any time during the term of this LEASE or any Renewal Term thereof upon thirty- (30) day's notice to the CITY with no further liability except as expressly provided herein. Upon such early termination by LESSEE, the CITY shall make a pro-rata refund to LESSEE of the rental fee paid to the CITY by LESSEE prorated to the date of CITY's acceptance of the removal of the LESSEE's FACILITIES. In the event of termination by either party, LESSEE shall immediately cease all work being performed under this LEASE, excepting only that work necessary for LESSEE to remove all equipment and repair the PREMISES in accordance with Section II(B). B. SURRENDER OF PREMISES LESSEE shall remove all LESSEE Facilities at its sole expense upon cancellation, expiration or earlier termination of this Lease. LESSEE shall repair any damage to the PREMISES caused by such removal and shall return the PREMISES to the 3 condition which existed on the Commencement Date, reasonable wear and tear and damages beyond the control or without the fault or neglect of LESSEE excepted. If LESSEE fails to remove the Facilities within thirty(30) days of the termination or expiration of this LEASE, CITY may remove and store the Facilities at LESSEE's sole cost and expense. If LESSEE does not claim the Facilities within thirty(30) days following said removal, and provided that CITY has given LESSEE and any third party financing entity thirty(30) days prior written notice, the Facilities shall be deemed abandoned and City May dispose of the Facilities. LESSEE shall notify CITY of the name and address of the third party financing entity for notice purposes herein and the CITY will be notified of any changes with respect to said entity and its address. LESSEE's obligation to observe and perform the covenants of this paragraph shall survive the end of this Lease. C. LIEN RIGHTS CITYwaives any lien rights it may have concerning the Facilities which are deemed LESSEE's personal property and not fixtures, and LESSEE has the right to remove the same at any time without CITY consent. CITYacknowledges that LESSEE has entered into a financing arrangement including promissory notes and financial and security agreements for the financing of the Facilities (the"Collateral") with a third party financing entity (and may in the future enter into additional financing arrangements with other financing entities). In connection therewith, CITY(i) consents to the installation of the Collateral; (ii) disclaims any interest in the Collateral, as fixtures or otherwise; and(iii) agrees that the Collateral shall be exempt from execution, foreclosure, sale, levy, attachment, or distress for any rent due or to become due and that such Collateral may be removed at any time without recourse to legal proceedings, except as when deemed abandoned pursuant to Section II, Paragraph B of this Lease. D. ACCESS TO IMPROVEMENTS 1. LESSEE shall have the right (but not the obligation) at any time following the full execution of this Lease and prior to the Commencement Date, to enter the PREMISES for the purpose of making necessary inspections and engineering surveys (and soil tests where applicable) and other reasonably necessary tests (hereinafter singularly and collectively referred to as "Tests") to determine the suitability of the PREMISES for LESSEE's Facilities (as defined herein) and for the purpose of preparing for the construction of LESSEE's Facilities. During any Tests or pre- construction work, LESSEE will have insurance as set forth in Section IV, B, 4, Insurance. LESSEE will notify CITY of any proposed Tests or pre-construction work and will coordinate the scheduling of same with CITY. If LESSEE determines that the PREMISES are unsuitable for LESSEE's contemplated use, then LESSEE will notify CITY and this Lease will terminate. 2. LESSEE has the right to construct,maintain and operate on the PREMISES radio communication facilities, including but not limited to, radio frequency transmitting and receiving equipment,batteries, utility lines, transmission lines, radio frequency transmitting and receiving antennas and supporting structures and improvements (hereinafter referred to as "Facilities"). In connection therewith, LESSEE has the right to do all work reasonably necessary to prepare, add, maintain and alter the PREMISES for LESSEE's communications operations and to install utility lines and transmission lines connecting antennas to transmitters and receivers. All of LESSEE's construction and installation work shall be performed at LESSEE's sole cost and expense and in good 4 workmanlike manner. Title to LESSEE's Facilities and any equipment placed on the PREMISES by LESSEE shall be held by LESSEE. All of LESSEE'.'s Facilities shall remain the property of LESSEE and are not fixtures. LESSEE has the right to remove all LESSEE's Facilities at its sole expense on or before the expiration or termination of this Lease. 3. At no charge to LESSEE, CITY shall provide access to the PREMISES to LESSEE, LESSEE's employees, agents, contractors and subcontractors five(5) days a week during working hours and on other days and times by special arrangement with CITY. Not withstanding the foregoing, in the event of an emergency, Lessee shall have access to the PREMISES at all hours, seven (7) days a week. Twenty-four hour emergency access is available through County Communications. CITY represents and warrants that it has full rights of ingress and egress from the PREMISES, and hereby grants such rights to LESSEE to the extent required to construct, maintain, install and operate LESSEE's Facilities on the PREMISES. LESSEE's exercises of such rights shall not cause undue inconvenience to CITY, nor shall it compromise the security of CITY's adjoining Site. 4. CITY shall maintain all access roadways from the nearest public roadway to the PREMISES in a manner sufficient to allow access. CITY shall be responsible for maintaining and repairing such roadways, at its sole expense, except for any damage caused by LESSEE or LESSEE's agents or assigns. If LESSEE or LESSEE's agents or assigns cause any such damage, LESSEE shall promptly repair same. 5. LESSEE shall have the right to install utilities, at LESSEE's expense, and to improve the present utilities on or near the PREMISES (including, but not limited to the installation of emergency back-up power). Subject to CITY's approval of the location, which approval shall not be unreasonably withheld, LESSEE shall have the right to place utilities on(or to bring utilities across) CITY's Property in order to service the PREMISES and LESSEE's Facilities. 6. LESSEE shall fully and promptly pay for all utilities furnished to the PREMISES for the use, operation and maintenance of LESSEE's Facilities. III. RENT A. BASIC RENT 1. Upon the Commencement Date, LESSEE shall pay to CITY, as rent, the sum of one thousand eight hundred dollars ($1,800.00)per month. If the Commencement Date is other than the first day of a calendar month, LESSEE may pay on the first day of the Term the prorated Rent for the remainder of the calendar month in which the Term commences, and thereafter, LESSEE shall pay a full month's rent on the first day of each calendar month, except that payment shall be prorated for the final fractional month of this Lease, or if this Lease is terminated before the expiration of any month for which Rent should have been paid. 2. These amounts will be due and payable on or before the first day of each month during the term of this Lease. The rent will be paid in advance to the Department of Finance, City of 5 Cupertino, 10300 Torre Avenue, Cupertino, CA 95014, without prior demand and without any abatement, deduction or setoff. B. LATE PAYMENT CHARGE The rent shall be delinquent if not received by the close of the business day on the 10th of each calendar month. Such unpaid amounts of rent shall be subject to a late payment charge equal to ten percent (10%) of such unpaid amounts. This late payment charge is intended to compensate CITY for its additional administrative costs resulting from LESSEE's failure, and has been agreed upon by CITY and LESSEE, after negotiation, as a reasonable estimate of the additional administrative costs which will be incurred by CITY as a result of LESSEE's failure; the actual cost being impossible to ascertain at the time of this Lease. This late payment will constitute liquidated damages due the CITY and will be paid to CITY together with such unpaid amounts. Acceptance of the payment of this late charge will not constitute a waiver by CITY of any default by LESSEE under this Lease. C. ADJUSTMENT OF RENT The rent in subparagraph A above will be adjusted according to this paragraph notwithstanding any provision in that subparagraph to the contrary: 1. Rent shall be increased on each anniversary of the Commencement Date by an amount equal to Five Percent (5%) of the rent for the previous year. IV. COVENANTS AND CONDITIONS • A. CITY COVENANTS 1. Quiet Possession _LESSEE, paying the said rent and performing the covenants and Leases herein, shall and may at all times during the said term peaceably and quietly have, hold and enjoy the said PREMISES for the term thereof. 2. Assignment and Subleasing The parties agree that the expertise and experience of LESSEE are material considerations inducing the CITY to enter into this LEASE. LESSEE shall not assign, sell, Lease, merge, consolidate or transfer any interest in this LEASE nor the performance of any of LESSEE's obligations herein, without prior written consent of the CITY, and any attempt by LESSEE to so assign this LEASE or any rights, duties or obligations arising herein shall be void and of no effect. The consent of the CITY will not be unreasonably withheld. Notwithstanding the foregoing, LESSEE shall have the right to assign its rights under this LEASE without the consent of the CITY to any of its subsidiaries or affiliates or its parent company or to any successor in interest or entity acquiring fifty-one percent(51%) or more of its stocks or assets, provided hoever, that LESSEE shall not be released from any obligation under this LEASE without the written consent of the CITY. Additionally, Lessee may assign, mortgage, pledge, hypothecate or otherwise transfer without consent its interest in this Lease to any financing entity, or agent on behalf of any financing entity to whom Lessee (i) has obligations for borrowed money or in respect of guaranties thereof, (ii) has obligations evidenced by'ponds, debentures, notes or similar instruments, or (iii) has obligations under or with respect to letters o f credit, bankers acceptances and similar facilities or in respect of guaranties thereof 6 3. Hazardous Waste CITY represents and warrants that any activity concerning Hazardous Materials on the Site and the PREMISES which CITY and/or its agents undertakes or permits to be undertaken by other Lessees, Licensees or Permittees of CITY will be done in accordance with all local, state and federal regulations governing the proper use, storage, transportation and disposal of said materials. In addition to the indemnity provided in section IVB4(b), CITY shall indemnify, defend,protect and hold LESSEE harmless from and against any and all claims, loss, proceedings, damages, causes of action, liability, costs or expenses (including attorney's fees) arising as a result of any Hazardous Materials which exist within the property, common areas,building or PREMISES as of the date first written above and any Hazardous Materials which are present within the property, common areas,building or PREMISES after said date which are not the result of the activities or omission of LESSEE. Notwithstanding the foregoing, nothing herein is intended to obligate LESSEE to bring the PREMISES into compliance with applicable requirements, ordinances and statutes unless such compliance is triggered by LESSEE's use, operations or LESSEE's Facilities constructed upon the PREMISES. Not withstanding any other provision of this Lease, LESSEE relies upon the representations stated herein as a material inducement for entering into this Lea: e. B. LESSEE COVENANTS 1. Compliance with Law LESSEE agrees, at its sole cost and expense, to comply with all the requirements, ordinances and statutes now in force, or which may hereafter be in force, of all municipal, county, state and federal authorities, pertaining to the said PREMISES, or the operations conducted thereon. 2. Taxes LESSEE agrees to pay before delinquency all taxes, adjustments, and fees assessed or levied upon LESSEE or the Leased PREMISES, including the land and any buildings, structures, machines, appliances or other property or improvements erected, installed or maintained by LESSEE or by reason of the business or other activities of LESSEE upon or in connection with the Leased PREMISES. LESSEE recognizes and agrees that this Lease may create a possessory interest subject to property taxation, and that LESSEE may be subject to further payment of property or possessory interest taxes without any compensatory reduction in rent due to the CITY. 3. Hazardous Waste LESSEE shall not bring any hazardous materials onto the PREMISES except for those contained in its back-up power batteries (lead-acid batteries) and common material used in telecommunications operations, e.g., cleaning solvents. LESSEE will treat all hazardous materials brought onto the PREMISES by it in accordance with all Federal, State and Local laws and regulations. In addition to the indemnity provided in section IVB4(a), LESSEE shall indemnify, defend,protect and hold CITY harmless from and against any and all claims, loss, proceedings, damages, causes of action, 7 liability, costs or expenses (including attorney's fees) arising as a result of any Hazardous Materials which exist within the property, common areas, building or PREMISES as a result of the activities or omission of LESSEE. 4. Indemnity a. LESSEE shall indemnify, defend, and hold harmless CITY, its employees, successors and assigns from and against any and all loss, cost, claim, liability, action, damage, injury to or death of any person (hereinafter referred to as "Claims"), including reasonable attorney's fees, occurring on the PREMISES and arising out of or connected with the negligence or willful misconduct of LESSEE, its agents or contractors, except for Claims arising out of the negligence or willful misconduct of CITY, its agents or contractors, breach of any duty or obligation by CITY under this Lease, or any condition relating to the PREMISES which LESSEE has no obligation to repair or maintain. b. CITY shall indemnify, defend, and hold harmless LESSEE, its employees, successors and assigns from and against any and all loss, cost, claim, liability, action, damage, injury to or death of any person (hereinafter referred to as "Claims"), including reasonable attorney's fees, arising out of or connected with negligence or willful misconduct of CITY, its agents or contractors, except for Claims arising out of the negligence or willful misconduct of LESSEE, its agents or contractors, violation of any law by LESSEE, its agents or contractors,breach of any duty or obligation by LESSEE under this Lease, or any condition relating to the PREMISES which CITY has no obligation to repair or maintain. c. The foregoing indemnity in a. and b. will survive the termination of this Lease. 5. Insurance Coverage LESSEE, at LESSEE's sole cost and expense, shall procure and maintain for the duration of this LEASE, including any extensions of this LEASE and during the period that LESSEE is performing any work upon the expiration or earlier termination of this LEASE to remove the equipment from CITY property, insurance,naming CITY as an additional insured, against claims for injuries to persons or damage to property which may arise from, or in connection with, the performance of the work or provision of SERVICES hereunder by LESSEE, its agents, representatives, employees or subcontractors. a. Minimum Scope of Insurance The coverage shall include Commercial General Liability together with Broad Form Comprehensive General Liability including explosion, collapse and underground; Automobile liability including Code 1 (any auto), Code 2 (owned autos), Code 8 (hired autos) and Code 9 (nonowned autos); Workers' Compensation as required by the California Labor Code and Employers Liability insurance. b. Minimum Limits of Insurance LESSEE shall maintain limits no less than two million dollars ($2,000,000) combined single limit per occurrence for bodily injury, personal injury and property damage in Commercial General Liability; three million dollars ($3,000,000) in 8 aggregate for public liability and five hundred thousand dollars ($500,000) combined single limit per accident for bodily injury and property damage in Automobile Liability; and Workers' Compensation and Employers Liability limits of one million dollars ($1,000,000)per occurrence. c. Deductibles and Self-insured Retention Any deductibles or self-insured retention must be declared to, and approved by the CITY. d. Policy Provisions The following provisions must be included in the policies: (1.) The CITY of Cupertino, its officers, employees, agents and contractors are to be covered as additional insured regarding liability arising out of activities performed by or on behalf of, LESSEE, products and completed operations of LESSEE, premises owned, Leased or used by LESSEE, and vehicles owned, Leased, hired or borrowed by LESSEE. The coverage shall contain no special limitations on the scope of protection afforded to the CITY, its officers, employees, agents and contractors. (2.) LESSEE's insurance coverage shall be primary insurance as respects the CITY, its officers, employees, agents and contractors. Any insurance or self-insurance maintained by the CITY, its officers, employees, agents or contractors shall be excess of LESSEE's insurance and shall not contribute with it. (3.) Any failure to comply with reporting provisions of the policies by LESSEE shall not affect coverage provided the CITY, its officers, employees, agents or contractors. (4.) All policies required by this LEASE shall be endorsed to state that coverage shall not be suspended, voided, canceled or reduced in limits except after thirty (30) days prior written notice has been given to the CITY. e. Acceptability of Insurers The insurance carrier shall provide proof of their ratings. All ratings shall be a minimum of"Best A-7." f. Verification of Cov_rage The CITY shall provide all required forms. LESSEE shall furnish CITY with certificates of insurance and with all endorsements affecting coverage required by this LEASE. The certificates and endorsements for each policy are to be signed by a person authorized by that insurer to bind coverage on its behalf. g. Subcontractors LESSEE shall either include all subcontractors as insured under its policies or shall require all subcontractors to meet CITY's requirements listed above. 6. Maintenance and Repairs LESSEE agrees to assume full responsibility for the operation, maintenance, and repairs of the PREMISES throughout the term hereof without expenses to 9 the CITY unless otherwise specified herein, and to perform all repairs and replacements necessary to maintain and preserve the PREMISES in good order, in a safe,healthy and sanitary condition, in manner reasonably satisfactory to CITY in compliance with all applicable regulations and laws. LESSEE agrees that CITY shall not be required to perform any maintenance, repairs, or services, or to assume any expense not specifically assumed herein, in connection with the PREMISES. Upon expiration of this Lease, LESSEE will surrender the PREMISES to CITY in good order and condition. 7. Nondiscrimination LESSEE agrees not to discriminate in any manner against any person or persons on account of race, marital status, sex, religious creed, color, ancestry, or national origin in LESSEE's use of the premises, including, but not limited to, the providing of goods, services, facilities, privileges, advantages and accommodations, and the obtaining and holding of employment. 8. Utility Costs LESSEE agrees to order, obtain and pay all utilities, including but not limited to water, gas, electricity, telephone, communications services, sanitary and drainage services, and service installation charges on any improvements made by LESSEE on the PREMISES. LESSEE shall also secure and utilize waste disposal services for the PREMISES in accordance with applicable local and state ordinances. All utilities on the Site shall be underground. In the event utilities to the PREMISES are furnished by the CITY and are measured by privately installed sub-meters, LESSEE shall pay as additional rent the cost of utility service provided to the PREMISES and attributable to LESSEE's use ("Utility Charge"). LESSEE shall pay the estimated cost of the Utility Charge monthly in advance together with the monthly Rent. The parties estimate the Utility Charge at the Commencement Date to be Two Hundred Fifty Dollars ($250.00) per month. During the lease term, at CITY's request (which request shall not be more frequent than once every twelve months), LESSEE shall calculate the actual Utility Charge for the immediately preceding twelve (12) months based on the readings from the privately installed sub-meters at CITY's Property. If the actual Utility Charge varies from the estimated Utility Charges paid, the parties shall adjust the Utility Charge to reflect LESSEE's actual usage. 9. Waste, Damage or Destruction LESSEE agrees to give notice to CITY of any fire or damage that may occur on the leased PREMISES within ten (10) days of such fire or damage. LESSEE agrees not to commit or suffer to be committed any waste or injury or any public or private nuisance, to keep the PREMISES clean and clear of refuse and obstructions, and to dispose of all garbage, trash and rubbish in a manner reasonably satisfactory to the CITY. If the PREMISES is destroyed or damaged so as in LESSEE's judgment, to hinder its effective use of CITY's property, LESSEE may elect to terminate this Lease as of the date of the damage or destruction by so notifying CITY in writing no more than 30 days following the date of damage or destruction. In such event, all rights and obligations of the parties which do not survive the termination of this Lease shall cease as of the date of the damage or destruction. 10. Contingency It is understood by LESSEE and CITY that this Lease is fully contingent upon LESSEE obtaining final development approvals for construction of improvements on the leased land from the CITY. In the event that such governmental approvals are not obtained on or 10 before December 31, 2000, after due diligence by LESSEE, LESSEE shall have the right to terminate this agreement within 30 days by notifying CITY in writing. If terminated, LESSEE shall have no further obligation to pay rent or comply with any other provision of this Lease. 11. Interference with Communications LESSEE's facilities shall not disturb the communications configurations, equipment and frequency which exist on CITY's property on the Commencement Date (hereinafter referred to as "Pre-existing Communications"), and LESSEE's facilities shall comply with all non-interference piles of the Federal Communications Commission (FCC). CITY shall not permit the use of any portion of the Site in a way which interferes with the communications operations of LESSEE described in Paragraph I. A., above. Such interference with LESSEE's communications operations shall be deemed a material breach by CITY, and CITY shall have the responsibility to terminate said interference within a reasonable time of LESSEE's written notice to CITY. In the event any such interference does not cease within ten days time, the parties acknowledge that continuing interference will cause irreparable injury to LESSEE, and therefore, LESSEE shall have the right to terminate the Lease immediately upon notice to CITY. Notwithstanding the foregoing, Pre-existing Communications operating in the same manner as on the Commencement Date shall not be deemed interference. 12. Legal Proceedings LESSEE agrees that should it become necessary for CITY to commence legal proceedings to collect rent,recover possession, or enforce any other provision of this Lease, the prevailing party will be entitled to legal costs and expenses in connection therewith, including reasonable attorney's fees as determined by the court. The parties agree that the laws of the State of California shall be used in interpreting this Lease and will determine all rights and obligations hereunder, and it is agreed that this Lease is executed in Cupertino, CA. 13. Electromagnetic Fields LESSEE shall comply with all present and future laws, orders and regulations relating to Electromagnetic Fields (EMFs), and the American National Standards Institute (ANSI) standards. Without limiting the provision of LESSEE's indemnity contained herein, LESSEE, on behalf of itself and its successors and assigns, shall indemnify the CITY from and against all claims of personal injuries due to EMFs to the extent such personal injuries are caused by LESSEE's facilities on the Premises. C. RESTRICTIVE CONDITIONS 1. Administration and Notices CITY's agent for control and administration of this Lease shall be the Director of Public Works of the CITY of Cupertino, and any communication relative to the terms or conditions or any changes thereto or any notice or notices provided for by this Lease or by law to be given or served upon CITY may be given or served by certified letter deposited in the United States mails, postage prepaid, and addressed as indicated below,. Any notice or notices provided for by this Lease or by law to be given or served upon LESSEE may be given or served by depositing in the United States mails,postage prepaid, a certified letter addressed to said LESSEE at the PREMISES or at such other address designated in writing by LESSEE, or may be personally served upon them or any person hereafter authorized by them to receive such notice. Any notice or notices given or served as provided herein shall be effectual and binding for all purposes upon the 11 principals of the parties so served upon personal service or forty-eight(48)hours after mailing in the manner required herein: CITY: Director of Public Works City of Cupertino 10300 Tone Avenue Cupertino, CA 95014 LESSEE: Nextel of California, Inc. 1255 Treat Blvd., Suite 800 Walnut Creek,CA 94596 Attention: Property Management with a copy to: Nextel Communications 2001 Edmund Halley Drive Reston,VA 20191-3436 Sixth Floor, Mail Stop 6E630 Site Leasing Services; Contracts Manager CITY or LESSEE may, from time to time, designate any other address for this purpose by written notice to the other party. 2. Entry and Inspection CITY reserves the right to enter the PREMISES for the purpose of viewing and ascertaining the condition of the same, or to protect its interests in the PREMISES, or to inspect the operations conducted thereon. In the event that such entry or inspection by CITY discloses that the PREMISES are not in a safe,healthy and sanitary condition, CITY shall have the right, after thirty (30) days written notice to LESSEE, to have any necessary maintenance work done for and at the expense of LESSEE and LESSEE hereby agrees to pay promptly and any all reasonable costs incurred by CITY in having such necessary maintenance work done in order to keep the PREMISES in a safe,healthy and sanitary condition. Failure to reimburse CITY for the reasonable costs incurred by CITY within thirty (30) days of completion of said maintenance work shall constitute a default of this Lease. 3. Holding Over. This Lease shall terminate without further notice at expiration of the term. Any holding over by LESSEE after expiration shall be under the same terms of this Lease, as may be amended, and shall not constitute a renewal or extension or give LESSEE any rights in or to the PREMISES except as otherwise expressly provided in this Lease. 4. Merger The voluntary or other surrender of this Lease by LESSEE, or a mutual cancellation thereof, shall not work a merger and shall, at the option of CITY,terminate all or any existing subleases or subtenancies or may, at the option of CITY, operate as an assignment to it of any or all such subleases or subtenancies. 12 5. Reservation of CITY Rights CITY hereby reserves all rights ,title and interest in any and all gas, oil, minerals and water beneath said Leased premises. CITY shall have the reasonable right to enter the PREMISES for the purpose of making repairs to or developing municipal services. CITY hereby reserves the right to grant and use such easements or establish and use such rights-of-way over, under, along and across the PREMISES for utilities, thoroughfares, or access as it may deem advisable for the public good. Provided, however, CITY shall not unreasonably interfere with LESSEE's use of the PREMISES and will reimburse LESSEE for physical damages, if any, to LESSEE's facilities located on the PREMISES resulting from CITY's exercising the rights retained in this paragraph. Such reimbursement may include a reduction in the annual rent proportionate to the amount of any physical damage as reasonably determined by CITY. CITY shall pay the costs of maintenance and repair of all CITY installations made pursuant to the rights reserved herein. All utilities shall be underground. 6. Time is of the Essence Time is of the essence of each and all of the terms and provisions of this Lease and this Lease shall inure to the benefit of and be binding upon the parties hereto and any successor of LESSEE as fully and to the same extent as though specifically mentioned in each instance, and all covenants, stipulations and agreements in this Lease shall extend to and bind any assigns or sublessees of LESSEE. 7. Waiver The waiver by CITY of any term, covenant, or condition herein contained shall not be deemed to be a waiver of such term, covenant or condition, or any subsequent breach of the same or any other terms, covenant or condition herein contained. The subsequent acceptance of rent hereunder by CITY shall not be deemed to be a waiver of any preceding breach by LESSEE of any term, covenant or condition of this Lease, regardless of CITY's knowledge of such preceding breach at the time of acceptance of such rent. Failure on the part of CITY to require or exact full and complete compliance with any of the covenants, conditions or agreements of this Lease shall not be construed as in any manner changing the terms hereof and shall not prevent CITY from enforcing any provision hereof. 8. Recordation LESSEE may, at its cost, record this Lease or a memorandum of this Lease. 9. Title. a. CITY warrants that it has full right, power, and authority to execute this Lease; CITY further warrants that LESSEE shall have quiet enjoyment of the PREMISES during the Term of this Lease or any Renewal Term. b. LESSEE has the right to obtain a title report or commitment for a Leasehold title policy from a title insurance company of its choice. If, in the opinion of LESSEE, such title report shows any defects of title or any liens or encumbrances which may adversely affect LESSEE's use of the PREMISES, LESSEE shall have the right to terminate this Lease immediately upon written notice to CITY. 13 10. Captions. The captions of the various articles and paragraphs of this Lease are for convenience and ease of reference only and do not define, limit, augment, or describe the scope, content, or intent of this Lease or of any part of this Lease. 11. Entire Agreement This Lease contains the entire agreement between the parties. No promise, representation, warranty, or covenant not included in this Lease has been or is relied on by either party. Each party has relied on its own examination of this Lease, the counsel of its own advisors, and the warranties, representations, and covenants in the Lease itself. The failure or refusal of either party to inspect the PREMISES, to read the Lease or other documents, or to obtain legal or other advice relevant to this transaction constitutes a waiver of any objection, contention, or claim that might have been based on such reading, inspection, or advice. 12. Severability The invalidity or illegality of any provision of this Lease shall not affect the remainder of the Lease. 13. Successors Subject to the provisions of this Lease on assignment and subletting, each and all of the covenants and conditions of this Lease shall be binding on and shall inure to the benefit of the heirs, successors, executors, administrators, assigns, sublessees, tenants, subtenants, and personal representatives of the respective parties. IN WITNESS WHEREOF, this Lease agreement is executed by CITY, acting by and through the Mayor, and by LESSEE, acting by and through its lawfully authorized officers. APPROVED AS TO FO' . City Attorney Charles Kilian CITY OF CUPERTINO 2 BY ' TITJohn Statton, Mayor NEXTEL OF CALIFORNIA, INC. BY /41 .,?�� C� �,.. s P er , 1 � < n�:. TITLE Mark B. Nelson �"ird U`a �n�' Vice President f. . �:3 VICE PRE-• DE_HT OF 1AC:.iNEERING ORIGINAL EXHIBIT "A" CA-2151B/Hwy 280/87 10555 Mary Avenue Cupertino, CA 95014 APN: 326-06-052 PA 4 NO. 1 t - • SSG NO at a polat on the Wastorl;y lino of,that cortais 40 acre tract of land crawl in the Deed from Lloyd L. EdWirdss at ux, to Jae A. Sorb, et us dated February 8, 1945, rceordad February 10, 1945 lg. book 1243 0. page , Santa Clara County Asaords, distant thereon South 0. OS' rest 2320.4 toot trop an iv= pipe in tho csotsrlino of Nostostead load; g thence South 0` 08' Nast along tics *Easterly hoc of said 40 acre tract 32.09 feat to an iron pipe at the Southaasterlr corner thereof; rums g thine* South 89" 44' West along the Southerly line of said 40 acre tract 59.52 foe. .o an iron pipe sit the Southwestsr3y corner thereof; • • thence North 0. 08' 30" Vest along the Westerly lino of said 40 acre tract 32.09 feeti • thence North 89' 44' Teat 659.54 fest to the point of beginning. • • NO approximately 2.00 scram and using a portion of the Southwest 114 o Section 11 Township 7 South, Bangs 2 West* 1N. D. 1. & P.1.110. 2 • E20I101 at a point on the Pastnrl3r lino of that certain 40 acre tract of laud scribed in the Dead from Lloyd L. Edv►ards, at ex, to Jod A. Sorel, st ux. dated lcebruaryr 1, 1945, recorded February 10, 1945, In Zook 1243 O. R., pate 2 , Santa Clara County Records, distant thereon South 0 08' asst 2444.4 fast from as troll pipe in the centerline of Homestead Road; - • thence South 0' 08' East Aloof the Easterly line of said 40 acre tract 56.00 ' set to the Northeasterly corner of .hat certain 2 acre tract of la*d dasc is the Deed from Jos A. sarai, et nut, to M, Jekovich. at us, dated Pebrua y 11, 1941 La look 1569 O. !•., Page 37, Santa Clara County Reaards; u thalami South 89' 44' West along the *orcharly ling of said 2 acre tract S9.S4 fast to the Korthusaterly corner thereof pa the Wastarly s of. . ' said acre tract; - •R thence Ninth Sr 44' bast along said 1,tsct aid lino 56 Gut; rune . 'thence North 89' 44' East cod parcllal with the Northerly limo of said 2 acre. tract 6!9.55 foot to"the point of beginning. IWa approximately 0.85 acrap end being a portion of t•.he Southwest 214 of Sec • - :l, Township 7 South, Sans* 2 Heats K. D. .S. 4 K. •w. l ML Y ( ?ARCS 1 and 2 all Mat portion thereof 444¢ribe as Parcels Z • and 2 the Dead ftoo I . Jakoviab, at ux,. to tbs State of California. recorded Sagas 12,. 1964 In look 6619, 0. R., Psga 556, Santa Clara County **cords, and • • more particuisry describe: as follaiu: . •P ty QIl . . •• at tba fouthvovtorly cornor of tho 2.00'oara parcel of land coavaynd 971:77,T;.7, to K. ' skovicb, at ut., by Dead recorded rebruary 15, 1949 i4 Book 1569 of •--• 0ff tc to cords, page 37; t • slosg the Southerly lira of said parcel South 89' 15' 33" East 133.92 _ fest; . • frog a taa,gao$•that boars North 16' 12' 43" Wait, along a =rim to as ' right b a radius of 1447.00 feet, through an angle of 4' 35' 21', in arc - leagt. of 115.90 feat' . • firma tangent that bears Werth 12' 16' 35" Wst, along a amnia to As- right f a radius of 600,00 teat through = angle•of 7" It' 36", eft arc isuyth v . EXHIBIT "A" CA-2151B/]Hwy 280/87 10555 Mary Avenue Cupertino, CA 95014 APN: 326-06-052 oe 77.0. foot to that Southerly line of the parcel of land conveyed to tb• State o California by Dead trcordad October 22, 1959 is look 4582 of Official Records page 4791 • • alooy, loot said lino Worth 89' :ES' 33" Shutt 91.69 feet to the Easterly line of the parcel of lead conveyed to the State of California by Dasd trecvrdsd Demob* 1. 1960 in Book 4998 of Official ttrcurd*, page 436; t• • sloes last said line &moth 0` sat' 03" Vest 381.09 feat to the point of -• amt. •• 0.434 of as acre, mom or lulu'. M to 1 above, this ciMw y inct t i• mar ran 1 hr purp0 k.s or a rrr+tfe+Hly and the •ntor boroby releases aril raliuquishos to t1ui *cantata any and all abutter rights of access, appurtanant to rantcr's rsasiaing.proparcy, in end to said saa+ay. 7i1Cgl. r CONME C '• • at the Southeasterly corner of the 2.00 acre parcel of lied conveyed to X. 1 cb, at ux, by Deed recorded 'February 18, 1948 in Book 1569 of Offia Leaasda, pogo 37; • t • along the southerly line of said psrcai North 19` 15' 33" Pest 30.00 tone; - North•0` 52' 33" East 188.09 feat to.the line coma* to the lands, now or ••resrly, of said K. J*kovich, et us, and of Jva $or:i, of us; them sloes list said line South 19• lS' 33" Fast 30.00 fast to the line common to the , • s, nom or formerly, of said K. Jakovich;•art-ie -nand of Noreen-J. — . Net • . , et elf t• •• along last amid line South 0' 52' 31" West 183.09 feet to the point of -- t. . • e' •• 0430 of as sere, ears or lass. • 'r'he • - and distance; Wood in the above descriptions are on the California Coon Osten. Eons 3. Multiply the above distances by 1.0000495 to obtain =mood • el dimes. `/ • DOCUMENT: 20503430 Pages: 6 II 11 I 111 111 11 II II Fees. . . . 24.00 Taxes. . . Copies. AMT PAID 24.00 Prepared by and after recording return to: REGINA ALCOMENDRAS RDE # 010 TowerCo SANTA CLARA COUNTY RECORDER 11/10/2009 Attention: Legal 5000 Valleystone Drive Recorded at the request of 2:56 PM Cary,NC 27519 Ci t y (Recorder's Use Above This Line) STATE OF CALIFORNIA Parcel No: 326-06-052 COUNTY OF SANTA CLARA 1 MEMORANDUM OF AGREEMENT Document Date: 1vov(N — 4/ Lessor: CITY OF CUPERTINO, a municipal corporation Address: Attn: Director of Public Works 10300 Torre Avenue, Cupertino, CA 95014-3202 Lessee: TOWERCO ASSETS LLC, a Delaware limited liability company Address: 5000 Valleystone Drive, Cary, NC 27519 Legal Description of the Land is attached as Attachment A on Pages 5 and 6 THE UNDERSIGNED GRANTOR DECLARES DOCUMENTARY TRANSFER TAX IS -0- X TERM OF LEASE,INCL,OPTIONS UNDER 35 YEARS COMPUTED ON FULL VALUE OF PROPERTY COMPUTED ON FULL VALUE LESS VALUE OF LIENS OR ENCUMBRANCES REMAINING AT THE TIME OF SALE UNINCORPORATED AREA CITY OF Memorandum of Agreement _PagJ�1J i of 6 TowerCo ID:CA2156 C��C/ Cascade ID:CA2317 PUBLIC WORKS DEPARTMENT JAN 15 2010 �� (.4,5(0D MEMORANDUM OF AGREEMENT This Memorandum of Agreement ("Memorandum") is entered into as of the latter of the signature dates below, by and between the CITY OF CUPERTINO, a municipal corporation, having a mailing address of 10300 Tone Avenue, Cupertino, California 95014-3202 (hereinafter referred to as "Lessor"), and TOWERCO ASSETS LLC, a Delaware limited liability company, having a mailing address of 5000 Valleystone Drive, Cary, North Carolina 27519 (hereinafter referred to as "Lessee"). 1. Lessor and Nextel of California, Inc., a Delaware corporation, d/b/a Nextel Communications ("Sprint/Nextel") entered into that certain unrecorded Antenna Site Lease Agreement dated June 14, 2000, as amended, if applicable (as amended, the "Agreement") for approximately six hundred (600) square feet of certain real property and easements which are a portion of that certain parcel of real property owned by Lessor located in the County of Santa Clara, State of California described in ATTACHMENT A attached hereto (the"Land"). 2. Sprint/Nextel assigned all its right, title and interest in, to and under the Agreement to Tower Entity 7 LLC, a Delaware limited liability company ("Tower Entity"), by that certain Assignment and Assumption of Ground Lease dated September 23, 2008 and recorded as Document 20111246 among the official records of the County of Santa Clara, State of California. 3. Thereafter, Tower Entity was acquired by and merged into Lessee. 4. The term of the Agreement is for five (5) years commencing on December 31, 2000. 5. The current term expires on December 30, 2010. 6. The Agreement has a provision that the term may be extended for two (2) successive five (5) year terms with an expiration date of December 30, 2015. 7. The purpose of the Memorandum is to give record notice of the Agreement and of the rights created thereby, all of which are hereby confirmed. The terms of the Agreement are incorporated herein by reference. In the event of a conflict between the terms of this Memorandum or the addition of any terms in this Memorandum which are not contained in the Agreement, such conflicting or additional terms shall be deemed to be part of the Agreement and shall otherwise amend the Agreement and be controlling. 8. This Memorandum may be executed in two or more counterparts, all of which shall be considered the same agreement and shall become effective when one or more counterparts have been signed by each of the parties. This Memorandum is not and will not be binding on either party until and unless it is fully executed by both parties. [SIGNATURES APPEAR ON NEXT PAGE] Memorandum of Agreement Page 2 of 6 TowerCo ID:CA2I56 Cascade ID:CA23I7 IN WITNESS WHEREOF, the parties have executed this Memorandum as of the latter of the signature dates below. LESSOR: CITY OF CUPERTINO, a municipal corporation '(L4 �/ N ame: � � v� L V Title: I raffir 7 Date: /6 .'Z, ' 07 LANDLORD ACKNOWLEDGMENT State of California County of 7ca✓1 11 let CO On 00j. vC( ?L)t;4 before me, I_)(V1orci ) ,Notary Public (Here insert name and title of the officer) personally appeared Zit\ A• @' 1 1 l 3 t who proved to me on the basis of satisfactory evidence to be the persons) whose name(s) is/afe subscribed to the within instrument and acknowledged to me that he/sue executed the same in his/weir authorized capacity(-i.&), and that by his/her/their-signature(-9} on the instrument the person(s), or the entity upon behalf of which the person( -}-acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. 6a) (Notary Seal) Signature of Notary Public lull KAREN IIERNARD-GUERIN )• CommtsNon tt 1615449 ? ' Notary Public-CaNlomio —Santa Clam county My Comm.ExpN«Nov 9 Memorandum of Agreement Page 3 of 6 TowerCo ID:CA2I56 Cascade ID:CA2317 LESSEE: TOWERCO ASSETS LLC, a Delaware limited liability company By: Name: Daniel Hunt Title: Vice President and CFO Date: < i 1%5 L C.)y TENANT ACKNOWLEDGMENT State of North Carolina County of Wake _\ ` _^ �b9 before me, �G H t� -r ` 0d C. Notary Public On NOV�.�Mb�l � , ' � �`e� �N. V 1 1� y (Here insert name and title of the officer) personally appeared Daniel Hunt, Vice President and CFO who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of North Carolina that the foregoing paragraph is true and correct. ITNESS my hand and official seal. RAYMOND W. MOORE Notary Public, North Carolina (Notary Seal Wake County �� }' ) My Commission Expires Signat re of Notary Public October 07, 2014 Memorandum of Agreement Page 4 of 6 TowerCo ID:CA2156 Cascade ID:CA2317 ATTACHMENT A LAND PARCEL ONE: Beginning at a point on the Easterly line of that certain 40 acre tract of lands described in the Deed from Lloyd L. Edwards, et ux, to Joe A. Sorci, et ux., dated February 8, 1945, recorded in February 10, 1945 in Book 1243 O.R., Page 265, Santa Clara County Records, distant thereon South 0° 08' East 2520.46 feet from an iron pipe in the centerline of Homestead Road; running thence South 0° 08" East along the Easterly line of said 40 acre tract, 132.09 feet to an iron pipe at the Southeasterly corner thereof; running thence South 89° 44" West along the Southerly line of said 40 acre tract, 659.52 feet to an iron pipe at the Southwesterly corner thereof; running thence North 0° 08' 30" West along the Westerly line of said 40 acre tract, 132.09 feet; running North 89° 44' East 659.54 feet to the point of beginning. Being a portion of the Southwesterly '/ Section 11, Township 7 South, Range 2 West, M.D.B. & M. PARCEL TWO: Beginning at a point on the Easterly line of that certain 40 acre tract of land described in the Deed from Lloyd L. Edwards, et ux., to Joe A. Sorci, et ux., dated February 8, 1945, recorded February 10, 1945 in Book 1243 O.R., Page 265, Santa Clara County Records, distant thereon South 0° 08' East, 2464.46 feet from an iron pipe in the centerline of Homestead Road; running thence South 0° 08' East along the Easterly line of said 40 acre tract, 56.00 feet to the Northeasterly corner of that certain 2 acre tract of land described in the Deed from Joe A. Sorci, et ux, to M. Jakovich, et ux., dated February 18, 1948, recorded February 18, 1948 in Book 1569 O.R., Page 37, Santa Clara County Records; running thence South 89° 44' West along the Northerly line of said 2 acre tract, 659.54 feet to the Northwesterly corner thereof on the Westerly line of said 40 acre tract; running thence North 0° 08' 30" West along said last named line, 56 feet; running thence North 89° 44' East and parallel with the Northerly line of said 2 acre tract, 659.55 feet to the point of beginning. Being a portion of the Southwest 'A of Section 11, Township 7 South, Range 2 West, M.D.B. & M. Excepting from Parcels One and Two all that portion thereof described as Parcels 1 and 2 in the Deed from M. Jakovich, et ux., to the State of California, recorded August 12, 1964 in Book 6619, O.R., Page 656, Santa Clara County Records, and being more particularly described as follows: Parcel 1: Commencing at the Southwesterly corner of the 2.00 acre parcel of land conveyed to M. Jakovich, et ux., by Deed recorded February 18, [949 in Book 1569 in Official Records, Page 37; thence along the Southerly line of said parcel, South 89° 15' 33" East 133.92 feet; thence from a tangent that bears North 16° 12' 43" West along a curve to the right with a radius of 1447.00 feet, through an angle of 4° 35' 21", an arc length of 115.90 feet; thence from a tangent that bears North 12° 16' 35" West, along a curve to the right with a radius of 600.00 feet through an angle of 7° 21' 34", an arc length of 77.07 feet to the Southerly line of the parcel of land Memorandum of Agreement Page 5 of 6 TowerCo ID:CA2156 Cascade ID:CA2317 conveyed to the State of California by Deed recorded October 22, 1959 in Book 4582 of Official Records, Page 479; thence along last said line, North 89° 15' 33" West 91.69 feet to the Easterly line of the parcel of land conveyed to the State of California by Deed recorded December 1, 1960 in Book 4998 of Official Records, Page 436; thence along last said line, South 0° 52' 03"West 188.09 feet to the point of commencement. Parcel 2: Commencing at the Southeasterly corner of the 2.00 acre parcel of land conveyed to M. Jakovich, et ux., by deed recorded February 18, 1948 in Book 1569 of Official Records, Page 37; thence along the Southerly line of said parcel, North 89° 15' 33" West 30.00 feet; thence North 0° 52' 31" East 188.09 feet to the line common to the lands now or formerly of said M. Jakovich, et ux, and of Joe Sorci, et ux.; thence along last said line, South 89° 15' 33" East, 30.00 feet to the line common to the lands now or formerly of said M. Jakovich, et ux., and of Norman J. Nathanson, et al; thence along last said line, South 0° 52' 31" West 188.09 feet to the point of commencement. The bearings and distances used in the above description are on the California Coordinate System, Zone 3. Multiply the above distances by 1.0000495 to obtain ground level distances. Memorandum of Agreement Page 6 of 6 TowerCo ID:CA2156 Cascade ID:CA2317 Computer– Username–teresaz Password–Spring2011 Teresa's documents–all files saved in H:\Teresa's documents Phone numbers and voice mail– Line#1 -Direct line for Teresa's desk–777-3405 Line#2–main CA line–777-3403 Fax–777-3401 Carol's direct–forwards to her cell–777-3402 Carol's cell–510-517-6143 Carol home–510-769-8474 Voicemail–366-7875–password is the same as phone number for each line My cell–425-205-5434. My email–teresazueger @gmail.com .fti.1 Scanner–insert docs in feeder(face up and vertical). Use the docsend computer. Log on with same username/password as main computer. Hit net connect. Hit scan which will initiate the doc feeder. After all pages have scanned, hit the send tab along the bottom of the screen. Hit next and then send. This takes you to a screen where it assigns a unique name to the document. Delete this and assign your own name to it. hit ok and it will send it to the computer. Hit"start over" and it will erase the document from the scanner(it is still sent to the computer)–this just gets it ready for the next scan. If you don't hit start over,you will need to delete that document from your next scan or it will be included in whatever you scan next. Scan file is saved on the desk top and has all scanned documents saved by date. Newest is always at top. Claims All files are stored in back cabinet beneath the fax machine. When a new claim comes in, access the "claims" file in Teresa's documents. 1) assign the next number in the excel sheet and fill out relevant info 2)fill out the LLN form–loss liability notice form 3) scan the LLN and the claim form and email to chantelle Coleman doan at ABAG a) ChantelleD@abag.ca.gov b) (510)464-7972 tell Chantelle you are sending a new claim. She will email back with any instructions. She also send letters telling you what to do with claims- like when they need rejected. All the form letters are saved in the claims file–see 2010 or 2011. Just change all the dates and names and sign the letters. Feel free to have Gary review before you mail if you want to. Or Laura or Grace can also review. In the event Chantelle needs additional info, she will email you. Mostly she will ask questions and you can forward to the person who can answer. If it is a PW type claim—sidewalk,tree, etc.,send them to Chylene Osborne and she can direct to the correct person. If it is parks,send to donna and mark and they will forward as needed. mainly,just ask Laura if you have a question. Any pending files are all stored in the cabinet if you need anything. Open/active claims are towards the front. If it has been denied but is awaiting a possible lawsuit (w/in 6 months after we deny), it is in the back of the top drawer. Older claims that are closed are in the bottom drawer. If you access my email,you can also see Carol's and her calendar. If you click on contacts it gives you a blank list; so you have to click on the other contact choices. This is some problem with the fact that they have assigned me so many email accounts(city attorney,sec.to attorney, etc.). Some contract attorneys we use and you may need to email: Valerie Armento:valeriearmentoPvahoo.com—may come by occasionally to use the library Gary Baum—garvbaumlaw@gmail.com—408-833-6246—gary usually works in our office when doing city work. Joe Wiley- iwilev@wprlaw.com - Martha Lennihan -mlennihan @lennihan.net Mailbox-#3—outside in the box closest to the building Library book updates can be done when you're bored (or have nothing else to do)O Water delivery is on Thursday. Check requests—see Teresa documents and check requests. Be on the lookout for the Bank of America statement as Tina needs that and any corresponding receipts asap. • Antenna Site Lease Agreement between the CITY of Cupertino and Nextel of California,Inc., a Delaware Corporation, d/b/a Nextel Communications This Antenna Site Lease Agreement("Lease") is executed by and between the CITY of Cupertino, a municipal corporation, hereinafter called"CITY" and Nextel of California, Inc., a Delaware corporation, d/b/a Nextel Communications, hereinafter called"LESSEE." I. DEMISED PREMISES CITY hereby leases and LESSEE leases from CITY a portion of that certain real property situated in the CITY of Cupertino, State of California, commonly known as Cupertino Service Center("Site") described and delineated as specifically shown on Exhibit A attached hereto, consisting of approximately six hundred(600) square feet of land. Said real property is hereinafter called the"PREMISES" and is described in Exhibit B attached hereto. A. PERMITTED USE The PREMISES may be used by LESSEE for any lawful activity in connection with the provision of mobile/wireless communication services, including without limitation, the transmission and the reception of radio communication signals on various frequencies and the construction, maintenance and operation of related communication facilities. LESSEE shall not use the PREMISES for any activity or in any manner which would tend to lower the character of the PREMISES, or in such a manner as to create any nuisance which disturbs, interferes with, or annoys any other neighboring person or entity. B. CONSTRUCTED IMPROVEMENTS It is contemplated that LESSEE shall construct upon the Premises a telecommunications facility which shall consist of a ten foot by twenty foot equipment shelter in which Lessee shall place its communications equipment. Before any work of construction, alteration, or repair is commenced on the PREMISES, LESSEE shall comply with all of the following conditions and provisions unless CITY's written waiver is first obtained: 1. All new structures shall first comply with CITY's applicable development standards and review process, including review and approval of required conditional use permits by the Planning Commission or CITY Council as appropriate. 2. LESSEE shall notify CITY in writing of LESSEE's intention to commence any work of improvements at least five (5)working days prior to commencement of such work. The notice shall specify the approximate location and nature of the intended improvements. CITY shall have the right to post and maintain on the PREMISES any notices of non-responsibility provided for under applicable law, and to inspect the PREMISES in relation to compliance with this Lease, other permits or the construction at all reasonable times. 3. LESSEE shall secure and deliver to CITY, care of the Public Works Department, adequate evidence of compliance with all applicable building codes, ordinances, regulations, and requirements for all permits and approvals, including but not restricted to grading 1 permits, building permits, zoning and planning requirements, and approvals from various governmental agencies and bodies regulating water, sewer, and any other utility or improvement on the Site. 4. LESSEE shall provide required bonds or other security securing completion of any new structures to be constructed upon the Site, pursuant to section I(B)(5) of this Lease, and shall furnish CITY, care of the Public Works Department,with evidence of said security prior to undertaking any such construction on the PREMISES. 5. Prior to any work being conducted upon the Premises, LESSEE shall have provided to the CITY a bond or Certificate of Deposit as a security deposit in the amount of ten thousand dollars ($10,000.00) to cover the costs for the removal of LESSEE's equipment in and upon the PREMISES and any repairs that may be required to the PREMISES which are the responsibility of the LESSEE to repair under this lease. The CITY shall have the right to draw against the deposit in the event of a default by LESSEE or to cover the costs for the removal of the encroachment and any repairs that may be required to the PREMISES in the event that LESSEE fails to meet and fully perform any of its obligations hereunder. Within ten days of receipt of written notice from the CITY, LESSEE shall renew or replace such sums of money as shall bring the security deposit current. No release of the bond or certificate of deposit held as a security deposit shall be made except upon approval of the CITY, in accordance with California law. LESSEE agrees that the bond or certificate of deposit shall be held in full force and effect for the Term of this Agreement. The Security Deposit shall be released by the CITY upon completion of the removal of the encroachment and any repairs necessary to restore the PREMISES to their original condition as of the Commencement Date of the lease excepting reasonable wear and tear beyond the control or without the fault or neglect of the Lessee. The deposit shall be released thirty (30) days after the CITY Engineer's inspection and acceptance of the work. 6. Once any approved work of improvement is begun, LESSEE shall diligently prosecute completion of said work or construction. All work shall be performed in a good and workmanlike manner, and shall substantially comply with plans and specifications approved by CITY and as required by this Lease. C. SOIL CONDITIONS CITY makes no covenants or warranties respecting the condition of the soil or subsoil or any other condition of the PREMISES that might affect LESSEE's ability to construct the monopole antenna upon the PREMISES. D. UTILITY INSTALLATION ACCESS CITY grants to LESSEE the right to install utilities, for the purpose of serving the PREMISES only,which may be, in CITY's sole opinion, reasonably required. 2 II. TERM OF LEASE A. COMMENCEMENT AND TERMINATION The term of this Lease (Term) shall be five(5)years commencing with the issuance of a local building permit allowing LESSEE to construct its mobile/wireless communications facilities on the PREMISES, or December 31, 2000, whichever is earlier(hereinafter referred to as "Commencement Date"). At the option of LESSEE, the term of this Lease may be renewed for successive five-year periods of time(hereinafter referred to as "Renewal Term"), but in no event, shall the Lease be extended for more than two Renewal Terms without the negotiation and execution of a new lease. Not withstanding the above, the CITY may terminate the lease prior to the expiration of its term or any Renewal Term, under the following circumstances: 1. If LESSEE is in material breach; 2. If the CITY is required by federal, state or local law to regain possession of the PREMISES; 3. If the CITY no longer utilizes the Site as a city facility. Upon a breach or default of any of the terms or obligations of this LEASE by LESSEE,the CITY shall serve written notice upon LESSEE reasonably describing the breach or default. If LESSEE fails to cure a monetary breach or default within thirty (30) days or a non-monetary breach within sixty (60) days this LEASE shall be subject to termination at the option of the CITY. The CITY shall be entitled to exercise all rights and remedies hereby reserved under this LEASE or made available under applicable laws. Termination of this LEASE by the CITY shall constitute the withdrawal of any consent or authorization of CITY for LESSEE to perform any construction or other work under this LEASE excepting only that work necessary to remove all equipment and to repair the PREMISES to their original condition existing at the Commencement Date of the LEASE,reasonable wear and tear beyond the control or without the fault or neglect of the LESSEE excepted. LESSEE may terminate this LEASE at any time during the term of this LEASE or any Renewal Term thereof upon thirty- (30) day's notice to the CITY with no further liability except as expressly provided herein. Upon such early termination by LESSEE,the CITY shall make a pro-rata refund to LESSEE of the rental fee paid to the CITY by LESSEE prorated to the date of CITY's acceptance of the removal of the LESSEE's FACILITIES. In the event of termination by either party, LESSEE shall immediately cease all work being performed under this LEASE, excepting only that work necessary for LESSEE to remove all equipment and repair the PREMISES in accordance with Section II(B). B. SURRENDER OF PREMISES LESSEE shall remove all LESSEE Facilities at its sole expense upon cancellation, expiration or earlier termination of this Lease. LESSEE shall repair any damage to the PREMISES caused by such removal and shall return the PREMISES to the 3 condition which existed on the Commencement Date, reasonable wear and tear and damages beyond the control or without the fault or neglect of LESSEE excepted. If LESSEE fails to remove the Facilities within thirty (30) days of the termination or expiration of this LEASE, CITY may remove and store the Facilities at LESSEE's sole cost and expense. If LESSEE does not claim the Facilities within thirty (30) days following said removal, and provided that CITY has given LESSEE and any third party financing entity thirty(30) days prior written notice, the Facilities shall be deemed abandoned and City May dispose of the Facilities. LESSEE shall notify CITY of the name and address of the third party financing entity for notice purposes herein and the CITY will be notified of any changes with respect to said entity and its address. LESSEE's obligation to observe and perform the covenants of this paragraph shall survive the end of this Lease. C. LIEN RIGHTS CITYwaives any lien rights it may have concerning the Facilities which are deemed LESSEE's personal property and not fixtures, and LESSEE has the right to remove the same at any time without CITY consent. CITYacknowledges that LESSEE has entered into a financing arrangement including promissory notes and financial and security agreements for the financing of the Facilities (the"Collateral") with a third party financing entity(and may in the future enter into additional financing arrangements with other financing entities). In connection therewith, CITY(i) consents to the installation of the Collateral; (ii) disclaims any interest in the Collateral, as fixtures or otherwise; and (iii) agrees that the Collateral shall be exempt from execution, foreclosure, sale, levy, attachment, or distress for any rent due or to become due and that such Collateral may be removed at any time without recourse to legal proceedings, except as when deemed abandoned pursuant to Section II, Paragraph B of this Lease. D. ACCESS TO IMPROVEMENTS 1. LESSEE shall have the right (but not the obligation) at any time following the full execution of this Lease and prior to the Commencement Date, to enter the PREMISES for the purpose of making necessary inspections and engineering surveys (and soil tests where applicable) and other reasonably necessary tests (hereinafter singularly and collectively referred to as"Tests") to determine the suitability of the PREMISES for LESSEE's Facilities (as defined herein) and for the purpose of preparing for the construction of LESSEE's Facilities. During any Tests or pre- construction work, LESSEE will have insurance as set forth in Section IV, B, 4, Insurance. LESSEE will notify CITY of any proposed Tests or pre-construction work and will coordinate the scheduling of same with CITY. If LESSEE determines that the PREMISES are unsuitable for LESSEE's contemplated use, then LESSEE will notify CITY and this Lease will terminate. 2. LESSEE has the right to construct,maintain and operate on the PREMISES radio communication facilities, including but not limited to, radio frequency transmitting and receiving equipment,batteries, utility lines, transmission lines, radio frequency transmitting and receiving antennas and supporting structures and improvements (hereinafter referred to as "Facilities"). In connection therewith, LESSEE has the right to do all work reasonably necessary to prepare, add, maintain and alter the PREMISES for LESSEE's communications operations and to install utility lines and transmission lines connecting antennas to transmitters and receivers. All of LESSEE's construction and installation work shall be performed at LESSEE's sole cost and expense and in good 4 workmanlike manner. Title to LESSEE's Facilities and any equipment placed on the PREMISES by LESSEE shall be held by LESSEE. All of LESSEE's Facilities shall remain the property of LESSEE and are not fixtures. LESSEE has the right to remove all LESSEE's Facilities at its sole expense on or before the expiration or termination of this Lease. 3. At no charge to LESSEE, CITY shall provide access to the PREMISES to LESSEE,LESSEE's employees, agents, contractors and subcontractors five(5) days a week during working hours and on other days and times by special arrangement with CITY. Not withstanding the foregoing, in the event of an emergency, Lessee shall have access to the PREMISES at all hours, seven (7) days a week. Twenty-four hour emergency access is available through County Communications. CITY represents and warrants that it has full rights o f ingress and egress from the PREMISES, and hereby grants such rights to LESSEE to the extent required to construct, maintain, install and operate LESSEE's Facilities on the PREMISES. LESSEE's exercises of such rights shall not cause undue inconvenience to CITY,nor shall it compromise the security of CITY's adjoining Site. 4. CITY shall maintain all access roadways from the nearest public roadway to the PREMISES in a manner sufficient to allow access. CITY shall be responsible for maintaining and repairing such roadways, at its sole expense, except for any damage caused by LESSEE or LESSEE's agents or assigns. If LESSEE or LESSEE's agents or assigns cause any such damage, LESSEE shall promptly repair same. 5. LESSEE shall have the right t:o install utilities, at LESSEE's expense, and to improve the present utilities on or near the PREMISES (including, but not limited to the installation of emergency back-up power). Subject to CITY's approval of the location,which approval shall not be unreasonably withheld, LESSEE shall have the right to place utilities on(or to bring utilities across) CITY's Property in order to service the PREMISES and LESSEE's Facilities. 6. LESSEE shall fully and promptly pay for all utilities furnished to the PREMISES for the use, operation and maintenance of LESSEE's Facilities. III. RENT A. BASIC RENT 1. Upon the Commencement Date, LESSEE shall pay to CITY, as rent, the sum of one thousand eight hundred dollars ($1,800.00) per month. If the Commencement Date is other than the first day of a calendar month, LESSEE may pay on the first day of the Term the prorated Rent for the remainder of the calendar month in which the Term commences, and thereafter, LESSEE shall pay a full month's rent on the first day of each calendar month, except that payment shall be prorated for the final fractional month of this Lease, or if this Lease is terminated before the expiration of any month for which Rent should have been paid. 2. These amounts will be due and payable on or before the first day of each month during the term of this Lease. The rent will be paid in advance to the Department of Finance, City of 5 Cupertino, 10300 Tone Avenue, Cupertino, CA 95014, without prior demand and without any abatement, deduction or setoff. B. LATE PAYMENT CHARGE The rent shall be delinquent if not received by the close of the business day on the 10th of each calendar month. Such unpaid amounts of rent shall be subject to a late payment charge equal to ten percent(10%) of such unpaid amounts. This late payment charge is intended to compensate CITY for its additional administrative costs resulting from LESSEE's failure, and has been agreed upon by CITY and LESSEE, after negotiation, as a reasonable estimate of the additional administrative costs which will be incurred by CITY as a result of LESSEE's failure; the actual cost being impossible to ascertain at the time of this Lease. This late payment will constitute liquidated damages due the CITY and will be paid to CITY together with such unpaid amounts. Acceptance of the payment of this late charge will not constitute a waiver by CITY of any default by LESSEE under this Lease. C. ADJUSTMENT OF RENT The rent in subparagraph A above will be adjusted according to this paragraph notwithstanding any provision in that subparagraph to the contrary: 1. Rent shall be increased on each anniversary of the Commencement Date by an amount equal to Five Percent(5%) of the rent for the previous year. IV. COVENANTS AND CONDITIONS A. CITY COVENANTS 1. Quiet Possession _LESSEE,paying the said rent and performing the covenants and Leases herein, shall and may at all times during the said term peaceably and quietly have, hold and enjoy the said PREMISES for the term thereof. 2. Assignment and Subleasing The parties agree that the expertise and experience of LESSEE are material considerations inducing the CITY to enter into this LEASE. LESSEE shall not assign, sell, Lease, merge, consolidate or transfer any interest in this LEASE nor the performance of any of LESSEE's obligations herein,without prior written consent of the CITY, and any attempt by LESSEE to so assign this LEASE or any rights, duties or obligations arising herein shall be void and of no effect. The consent of the CITY will not be unreasonably withheld. Notwithstanding the foregoing, LESSEE shall have the right to assign its rights under this LEASE without the consent of the CITY to any of its subsidiaries or affiliates or its parent company or to any successor in interest or entity acquiring fifty-one percent(51%) or more of its stocks or assets, provided however, that LESSEE shall not be released from any obligation under this LEASE without the written consent of the CITY. Additionally, Lessee may assign, mortgage,pledge, hypothecate or otherwise transfer without consent its interest in this Lease to any financing entity, or agent on behalf of any financing entity to whom Lessee (i) has obligations for borrowed money or in respect of guaranties thereof, (ii)has obligations evidenced by bonds, debentures, notes or similar instruments, or (iii) has obligations under or with respect to letters of credit,bankers acceptances and similar facilities or in respect of guaranties thereof. 6 3. Hazardous Waste CITY represents and warrants that any activity concerning Hazardous Materials on the Site and the PREMISES which CITY and/or its agents undertakes or permits to be undertaken by other Lessees, Licensees or Permittees of CITY will be done in accordance with all local, state and federal regulations governing the proper use, storage, transportation and disposal of said materials. In addition to the indemnity provided in section IVB4(b), CITY shall indemnify, defend,protect and hold LESSEE harmless from and against any and all claims, loss, proceedings, damages, causes of action, liability, costs or expenses(including attorney's fees) arising as a result of any Hazardous Materials which exist within the property, common areas,building or PREMISES as of the date first written above and any Hazardous Materials which are present within the property, common areas,building or PREMISES after said date which are not the result of the activities or omission of LESSEE. Notwithstanding the foregoing,nothing herein is intended to obligate LESSEE to bring the PREMISES into compliance with applicable requirements, ordinances and statutes unless such compliance is triggered by LESSEE's use, operations or LESSEE's Facilities constructed upon the PREMISES. Not withstanding any other provision of this Lease, LESSEE relies upon the representations stated herein as a material inducement for entering into this Lease. B. LESSEE COVENANTS 1. Compliance with Law LESSEE agrees, at its sole cost and expense, to comply with all the requirements, ordinances and statutes now in force, or which may hereafter be in force, of all municipal, county, state and federal authorities,pertaining to the said PREMISES, or the operations conducted thereon. 2. Taxes LESSEE agrees to pay before delinquency all taxes, adjustments, and fees assessed or levied upon LESSEE or the Leased.PREMISES, including the land and any buildings, structures, machines, appliances or other property or improvements erected, installed or maintained by LESSEE or by reason of the business or other activities of LESSEE upon or in connection with the Leased PREMISES. LESSEE recognizes and agrees that this Lease may create a possessory interest subject to property taxation, and that LESSEE may be subject to further payment of property or possessory interest taxes without any compensatory reduction in rent due to the CITY. 3. Hazardous Waste LESSEE shall not bring any hazardous materials onto the PREMISES except for those contained in its back-up power batteries (lead-acid batteries) and common material used in telecommunications operations, e.g., cleaning solvents. LESSEE will treat all hazardous materials brought onto the PREMISES by it in accordance with all Federal, State and Local laws and regulations. In addition to the indemnity provided in section IVB4(a), LESSEE shall indemnify, defend,protect and hold CITY harmless from and against any and all claims, loss,proceedings, damages, causes of action, 7 liability, costs or expenses (including attorney's fees) arising as a result of any Hazardous Materials which exist within the property, common areas,building or PREMISES as a result of the activities or omission of LESSEE. 4. Indemnity a. LESSEE shall indemnify, defend, and hold harmless CITY, its employees, successors and assigns from and against any and all loss, cost, claim, liability, action, damage, injury to or death of any person(hereinafter referred to as "Claims"), including reasonable attorney's fees, occurring on the PREMISES and arising out of or connected with the negligence or willful misconduct of LESSEE, its agents or contractors, except for Claims arising out of the negligence or willful misconduct of CITY, its agents or contractors,breach of any duty or obligation by CITY under this Lease, or any condition relating to the PREMISES which LESSEE has no obligation to repair or maintain. b. CITY shall indemnify, defend, and hold harmless LESSEE, its employees, successors and assigns from and against any and all loss, cost, claim, liability, action, damage, injury to or death of any person(hereinafter referred to as "Claims"), including reasonable attorney's fees, arising out of or connected with negligence or willful misconduct of CITY, its agents or contractors, except for Claims arising out of the negligence or willful misconduct of LESSEE, its agents or contractors, violation of any law by LESSEE, its agents or contractors,breach of any duty or obligation by LESSEE under this Lease, or any condition relating to the PREMISES which CITY has no obligation to repair or maintain. c. The foregoing indemnity in a. and b. will survive the termination of this Lease. 5. Insurance Coverage LESSEE, at LESSEE's sole cost and expense, shall procure and maintain for the duration of this LEASE, including any extensions of this LEASE and during the period that LESSEE is performing any work upon the expiration or earlier termination of this LEASE to remove the equipment from CITY property, insurance, naming CITY as an additional insured, against claims for injuries to persons or damage to property which may arise from, or in connection with, the performance of the work or provision of SERVICES hereunder by LESSEE, its agents, representatives, employees or subcontractors. a. Minimum Scope of Insurance The coverage shall include Commercial General Liability together with Broad Form Comprehensive General Liability including explosion, collapse and underground; Automobile liability including Code 1 (any auto), Code 2 (owned autos), Code 8 (hired autos) and Code 9 (nonowned autos); Workers' Compensation as required by the California Labor Code and Employers Liability insurance. b. Minimum Limits of Insurance LESSEE shall maintain limits no less than two million dollars ($2,000,000) combined single limit per occurrence for bodily injury, personal injury and property damage in Commercial General Liability; three million dollars ($3,000,000) in 8 aggregate for public liability and five hundred thousand dollars ($500,000) combined single limit per accident for bodily injury and property damage in Automobile Liability; and Workers' Compensation and Employers Liability limits of one million dollars ($1,000,000)per occurrence. c. Deductibles and Self-:insured Retention Any deductibles or self-insured retention must be declared to, and approved by the CITY. d. Policy Provisions The following provisions must be included in the policies: (1.) The CITY of Cupertino, its officers, employees, agents and contractors are to be covered as additional insured regarding liability arising out of activities performed by or on behalf of, LESSEE,products and completed operations of LESSEE, premises owned, Leased or used by LESSEE, and vehicles owned, Leased,hired or borrowed by LESSEE. The coverage shall contain no special limitations on the scope of protection afforded to the CITY, its officers, employees, agents and contractors. (2.) LESSEE's insurance coverage shall be primary insurance as respects the CITY, its officers, employees, agents and contractors. Any insurance or self-insurance maintained by the CITY, its officers, employees, agents or contractors shall be excess of LESSEE's insurance and shall not contribute with it. (3.) Any failure to comply with reporting provisions of the policies by LESSEE shall not affect coverage provided the CITY, its officers, employees, agents or contractors. (4.) All policies required by this LEASE shall be endorsed to state that coverage shall not be suspended, voided, canceled or reduced in limits except after thirty (30) days prior written notice has been given to the CITY. e. Acceptability of Insurers The insurance carrier shall provide proof of their ratings. All ratings shall be a minimum of"Best A-7." f. Verification of Coverage The CITY shall provide all required forms. LESSEE shall furnish CITY with certificates of insurance and with all endorsements affecting coverage required by this LEASE. The certificates and endorsements for each policy are to be signed by a person authorized by that insurer to bind coverage on its behalf. g. Subcontractors LESSEE shall either include all subcontractors as insured under its policies or shall require all subcontractors to meet CITY's requirements listed above. 6. Maintenance and Repairs LESSEE agrees to assume full responsibility for the operation, maintenance, and repairs of the PREMISES throughout the term hereof without expenses to 9 the CITY unless otherwise specified herein, and to perform all repairs and replacements necessary to maintain and preserve the PREMISES in good order, in a safe,healthy and sanitary condition, in manner reasonably satisfactory to CITY in compliance with all applicable regulations and laws. LESSEE agrees that CITY shall not be required to perform any maintenance, repairs, or services, or to assume any expense not specifically assumed herein, in connection with the PREMISES. Upon expiration of this Lease, LESSEE will surrender the PREMISES to CITY in good order and condition. 7. Nondiscrimination LESSEE agrees not to discriminate in any manner against any person or persons on account of race, marital status, sex, religious creed, color, ancestry, or national origin in LESSEE's use of the premises, including,but not limited to, the providing of goods, services, facilities, privileges, advantages and accommodations, and the obtaining and holding of employment. 8. Utility Costs LESSEE agrees to order,obtain and pay all utilities, including but not limited to water, gas, electricity, telephone, communications services, sanitary and drainage services, and service installation charges on any improvements made by LESSEE on the PREMISES. LESSEE shall also secure and utilize waste disposal services for the PREMISES in accordance with applicable local and state ordinances. All utilities on the Site shall be underground. In the event utilities to the PREMISES are furnished by the CITY and are measured by privately installed sub-meters, LESSEE shall pay as additional rent the cost of utility service provided to the PREMISES and attributable to LESSEE's use ("Utility Charge"). LESSEE shall pay the estimated cost of the Utility Charge monthly in advance together with the monthly Rent. The parties estimate the Utility Charge at the Commencement Date to be Two Hundred Fifty Dollars ($250.00)per month. During the lease term, at CITY's request (which request shall not be more frequent than once every twelve months), LESSEE shall calculate the actual Utility Charge for the immediately preceding twelve (12) months based on the readings from the privately installed sub-meters at CITY's Property. If the actual Utility Charge varies from the estimated Utility Charges paid, the parties shall adjust the Utility Charge to reflect LESSEE's actual usage. 9. Waste, Damage or Destruction LESSEE agrees to give notice to CITY of any fire or damage that may occur on the leased PREMISES within ten(10) days of such fire or damage. LESSEE agrees not to commit or suffer to be committed any waste or injury or any public or private nuisance, to keep the PREMISES clean and clear of refuse and obstructions, and to dispose of all garbage, trash and rubbish in a manner reasonably satisfactory to the CITY. If the PREMISES is destroyed or damaged so as in LESSEE's judgment, to hinder its effective use of CITY's property, LESSEE may elect to terminate this Lease as of the date of the damage or destruction by so notifying CITY in writing no more than 30 days following the date of damage or destruction. In such event, all rights and obligations of the parties which do not survive the termination of this Lease shall cease as of the date of the damage or destruction. 10. Contingency It is understood by LESSEE and CITY that this Lease is fully contingent upon LESSEE obtaining final development approvals for construction of improvements on the leased land from the CITY. In the event that such governmental approvals are not obtained on or 10 before December 31, 2000, after due diligence by LESSEE, LESSEE shall have the right to terminate this agreement within 30 days by notifying CITY in writing. If terminated,LESSEE shall have no further obligation to pay rent or comply with any other provision of this Lease. 11. Interference with Communications LESSEE's facilities shall not disturb the communications configurations, equipment and frequency which exist on CITY's property on the Commencement Date (hereinafter referred to as "Pre-existing Communications"), and LESSEE's facilities shall comply with all non-interference rules of the Federal Communications Commission (FCC). CITY shall not permit the use of any portion of the Site in a way which interferes with the communications operations of LESSEE described in Paragraph I. A., above. Such interference with LESSEE's communications operations shall be deemed a material breach by CITY, and CITY shall have the responsibility to terminate said interference within a reasonable time of LESSEE's written notice to CITY. In the event any such interference does not cease within ten days time, the parties acknowledge that continuing interference will cause irreparable injury to LESSEE, and therefore, LESSEE shall have the right to terminate the Lease immediately upon notice to CITY. Notwithstanding the foregoing, Pre-existing Communications operating in the same manner as on the Commencement Date shall not be deemed interference. 12. Legal Proceedings LESSEE agrees that should it become necessary for CITY to commence legal proceedings to collect rent,recover possession, or enforce any other provision of this Lease, the prevailing party will be entitled to legal costs and expenses in connection therewith, including reasonable attorney's fees as determined by the court. The parties agree that the laws of the State of California shall be used in interpreting this Lease and will determine all rights and obligations hereunder, and it is agreed that this Lease is executed in Cupertino, CA. 13. Electromagnetic Fields LESSEE shall comply with all present and future laws, orders and regulations relating to Electromagnetic Fields (EMFs), and the American National Standards Institute (ANSI) standards. Without limiting the provision of LESSEE's indemnity contained herein, LESSEE, on behalf of itself and its successors and assigns, shall indemnify the CITY from and against all claims of personal injuries due to EMFs to the extent such personal injuries are caused by LESSEE's facilities on the Premises. C. RESTRICTIVE CONDITIONS 1. Administration and Notices CITY's agent for control and administration of this Lease shall be the Director of Public Works of the CITY of Cupertino, and any communication relative to the terms or conditions or any changes thereto or any notice or notices provided for by this Lease or by law to be given or served upon CITY may be given or served by certified letter deposited in the United States mails,postage prepaid, and addressed as indicated below,. Any notice or notices provided for by this Lease or by law to be given or served upon LESSEE may be given or served by depositing in the United States mails,postage prepaid, a certified letter addressed to said LESSEE at the PREMISES or at such other address designated in writing by LESSEE, or may be personally served upon them or any person hereafter authorized by them to receive such notice. Any notice or notices given or served as provided herein shall be effectual and binding for all purposes upon the 11 principals of the parties so served upon personal service or forty-eight(48)hours after mailing in the manner required herein: CITY: Director of Public Works City of Cupertino 10300 Torre Avenue Cupertino, CA 95014 LESSEE: Nextel of California, Inc. 1255 Treat Blvd., Suite 800 Walnut Creek,CA 94596 Attention: Property Management with a copy to: Nextel Communications 2001 Edmund Halley Drive Reston,VA 20191-3436 Sixth Floor,Mail Stop 6E630 Site Leasing Services; Contracts Manager CITY or LESSEE may, from time to time, designate any other address for this purpose by written notice to the other party. 2. Entry and Inspection CITY reserves the right to enter the PREMISES for the purpose of viewing and ascertaining the condition of the same, or to protect its interests in the PREMISES, or to inspect the operations conducted thereon. In the event that such entry or inspection by CITY discloses that the PREMISES are not in a safe,healthy and sanitary condition, CITY shall have the right, after thirty(30) days written notice to LESSEE,to have any necessary maintenance work done for and at the expense of LESSEE and LESSEE hereby agrees to pay promptly and any all reasonable costs incurred by CITY in having such necessary maintenance work done in order to keep the PREMISES in a safe, healthy and sanitary condition. Failure to reimburse CITY for the reasonable costs incurred by CITY within thirty (30) days of completion of said maintenance work shall constitute a default of this Lease. 3. Holding Over. This Lease shall terminate without further notice at expiration of the term. Any holding over by LESSEE after expiration shall be under the same terms of this Lease, as may be amended, and shall not constitute a renewal or extension or give LESSEE any rights in or to the PREMISES except as otherwise expressly provided in this Lease. 4. Merger The voluntary or other surrender of this Lease by LESSEE, or a mutual cancellation thereof, shall not work a merger and shall, at the option of CITY, terminate all or any existing subleases or subtenancies or may, at the option of CITY, operate as an assignment to it of any or all such subleases or subtenancies. 12 • 5. Reservation of CITY Rights CITY hereby reserves all rights ,title and interest in any and all gas, oil, minerals and water beneath said Leased premises. CITY shall have the reasonable right to enter the PREMISES for the purpose of making repairs to or developing municipal services. CITY hereby reserves the right to grant and use such easements or establish and use such rights-of-way over, under, along and across the PREMISES for utilities, thoroughfares, or access as it may deem advisable for the public good. Provided,however, CITY shall not unreasonably interfere with LESSEE's use of the PREMISES and will reimburse LESSEE for physical damages, if any, to LESSEE's facilities located on the PREMISES resulting from CITY's exercising the rights retained in this paragraph. Such reimbursement may include a reduction in the annual rent proportionate to the amount of any physical damage as reasonably determined by CITY. CITY shall pay the costs of maintenance and repair of all CITY installations made pursuant to the rights reserved herein. All utilities shall be underground. 6. Time is of the Essence Time as of the essence of each and all of the terms and provisions of this Lease and this Lease shall inure to the benefit of and be binding upon the parties hereto and any successor of LESSEE as fully and to the same extent as though specifically mentioned in each instance, and all covenants, stipulations and agreements in this Lease shall extend to and bind any assigns or sublessees of LESSEE. 7. Waiver The waiver by CITY of any term, covenant, or condition herein contained shall not be deemed to be a waiver of such term, covenant or condition, or any subsequent breach of the same or any other terms, covenant or condition herein contained. The subsequent acceptance of rent hereunder by CITY shall not be deemed to be a waiver of any preceding breach by LESSEE of any term, covenant or condition of this Lease,regardless of CITY's knowledge of such preceding breach at the time of acceptance of such rent. Failure on the part of CITY to require or exact full and complete compliance with any of the covenants, conditions or agreements of this Lease shall not be construed as in any manner changing the terms hereof and shall not prevent CITY from enforcing any provision hereof. 8. Recordation LESSEE may, at its cost, record this Lease or a memorandum of this Lease. 9. Title. a. CITY warrants that it has full right,power, and authority to execute this Lease; CITY further warrants that LESSEE shall have quiet enjoyment of the PREMISES during the Term of this Lease or any Renewal Term. b. LESSEE has the right to obtain a title report or commitment for a Leasehold title policy from a title insurance company of its choice. If, in the opinion of LESSEE, such title report shows any defects of title or any liens or encumbrances which may adversely affect LESSEE's use of the PREMISES, LESSEE shall have the right to terminate this Lease immediately upon written notice to CITY. 13 10. Captions The captions of the various articles and paragraphs of this Lease are for convenience and ease of reference only and do not define, limit, augment, or describe the scope, content, or intent of this Lease or of any part of this Lease. 11. Entire Agreement This Lease contains the entire agreement between the parties. No promise, representation, warranty, or covenant not included in this Lease has been or is relied on by either party. Each party has relied on its own examination of this Lease, the counsel of its own advisors, and the warranties, representations, and covenants in the Lease itself. The failure or refusal of either party to inspect the PREMISES, to read the Lease or other documents, or to obtain legal or other advice relevant to this transaction constitutes a waiver of any objection, contention, or claim that might have been based on such reading, inspection, or advice. 12. Severability The invalidity or illegality of any provision of this Lease shall not affect the remainder of the Lease. 13. Successors Subject to the provisions of this Lease on assignment and subletting, each and all of the covenants and conditions of this Lease shall be binding on and shall inure to the benefit of the heirs, successors, executors, administrators, assigns, sublessees, tenants, subtenants, and personal representatives of the respective parties. IN WITNESS WHEREOF, this Lease agreement is executed by CITY, acting by and through the Mayor, and by LESSEE, acting by and through its lawfully authorized officers. APPROVED AS TO FO' . City Attorney Charles Kilian CITY OF CUPERTINO BY TIT ' John Statton, Mayor NEXTEL OF CALIFORNIA, INC. TITLE dG `� a .bt :0 Mark B. Nelson Vice President iCE PRESt0S17 1.4;G N EEFUNS ORIGINAL EXHIBIT "A" CA-2151B/:Hwy 280/87 10555 Mary Avenue Cupertino, CA 95014 APN: 326-06-052 • SCO NO at o pols.t on the Westerly line of,tbat cotteie 40 acre tract of lead crlbed to the Dead From Lloyd 1.. Edwards, et ux, to Joe A. Sorei, et us detail February a, 1943, recorded 1sbtuary 10, 1943 lo Book 1243 0. R., pugs , Santa Clara County leoordio di*tact thereon South 0. OS' Seat 2520.4 feet trot an iron pipe in the csotsrlins of Bomestead load; g thence South 0" 08' Fist along the Westerly line of said 40 acre treat 32.09 feet to an iron pipe at the Southeasterly corner thereof; roma g thanes South 119' 44' Vast along the Southerly lime of said 40 acre tract 39.32 fee: .v an iron pipe at the Southwesterly corner thereof; thence North 0' 08' 30" Vast along the Westerly line of said 40 acre tract • 32.09 testi thence North 89' 44' East 639.34 feet to the point of beginning. • 6 NO approximately 2.00 acres and *sing a portion of the Southwest 1/4 o 844Cion 11 Township 7 South. Range 2 West, l!. D. 1. i 9,....=.110. 2 El9RT101 at a point on the Nrastarly lino of that curtain 40 nato tract of land • scribed in the Deed from Lloyd L. Edwards, et ux. to Joe A. Sorel, et ex. dated February a, 1945. recorded February 10, 1945, in Book 1243 0. R., page 2 , Seats Clara County Records, distant thereon South 0' O8' Bast 2444.4 feet from as trod pipe is the centerline of Uoeeatead Road; •- • thence South 0' 08' East along the Easterly line of said 40 acre tract 54.00 ' set to the Northeasterly corner of .bat carteia 2 sera tract of lead doss is the Deed fuss Joe A. Sorel, et ax, to 114 Jekovieb. et us, dated Marva y no 1141 is look 1569 O. R., Pegs 37, &anon Clara County saaordsh • as thecae South 89' 44' Vest *long the Korcbarly line of said 2 acre treat 59.54 feat to the 3tarthweater ly earner thereof on the Westerly 3inre of. , said oars tract; .8 thence birth 89' 44' Noae along said last uoa'4 lino $6 foot; rune 'thence North 19' 44' last and parallel with the Northerly lino of said 2 acre tract 09.SS fact to'thee point of ',ginning, •• • DIG spproxiastely 0.85 scref and being a portion. of :-.he Southwest 1/4 of tee • - =1, Township 7 South, len;ge 2 West, K. D. 1. 4 )f. «. 710a N'ARCSLS 1 and 2 ail that portion thneusot dileadbsd as Paresis i' • and 2 the Deed from 11. Jekoviab, it ux,• to the State of Calit•oteoia. recorded Aiwa 12, 1964 in Book 6619, 0. B.. Pegs 556, Santa Clara County hoards, and • more particulsry described as follows: a. • at the Southeasterly corner of the 2.00.acxe parcel of land eesveyed s+�t7-7777,71 , to K. • abovich, at us., by Dead recorded February 18. 3949 is Souk 1569 of Oltit Record., page 371 • ?;?1,' t *Um the Southerly lima of said parcel South 89' 15' 33" Test 133.92 /`� feet; Eno a tangos&that bears North 16' 12' 43" Nast, along a curve to the • right Is a radios of 1447.00 fort, through an angle of 4' 35' 211, se art . least ! t of 1130 feat' . ' ftos a tangent that bears North 12. 16' 35" Vest, along a outwit to Out- right th a radius of 600.00 feet through ma =sliver 7' 21' 31", stn *te 3segth EXHIBIT "A" CA-2151B/Hwy 280/87 10555 Mary Avenue Cupertino, CA 95014 APN: 326-06-052 of 77.0 foot to the Southerly line of the parcel of land conveyed to the State o California by Deed sacordod October 22, 1959 Lt Book 4582 of Official Records page 479; • aloes last acid line Worth !Sr 15' 33" West 91.69 feet to the Easterly lino of the patvml of lead conveyed to the State of California by Deed tecorded Deceaba 1. 1960 is Seek 4991 of Official Ra curtts, pegs 438; t• alooz last said lies South 0' 52' 03" Vest 181.09 feet to the point of -• swat. 4.• 0.414 of as aar+e, mare or 1we. As to • 1 ahovc, this etatvryaoce is lode roe the h+ttrposes or* Tray and the nt or here by releases and rotiuquldhus to the Branton any and all abutter rights of access, appurtenant to ranter': resiininl prep.tty, is and to said seaway. PARCEL •_ COMMENC '• • at the Southeasterly corner of the 2.00 acre parts! of find conveyed to K. J - ch, at ux, by Deed recorded February 18, 1948 in Hook 1569 of Offic I Zaaos'da, page 37; • - along the Southerly tine of said parcel North 198 15' 33" West 30.00 !sett 7brtb•0' 52' 32" asst 188.09 fast to.the line cameos to the loads, uav of ••reerly, of said W. Jebovich, et mac, and of Jos foci. at vat theca Allem list said line South 59' iS' 33" East 30.00 feet to the line common to the • •s, doer or formerly, of said K. Jekovich;•at-•treks•-and of formes-3.--•. Vat , et a1; t. - along List, said line South 0' 32' 31" Vest 188.09 feet to the point of -. •t. • -• • '' •• 0.130 of as sere, more or less. • • The • • and dierinces weed in the shove descriptions are en the California Ceer System, sore 3• Multiply the above distances by 1.0000695 to obtais =routed • el distances. INfl1ALS 00 David Woo From: David Woo Sent: Wednesday, November 23, 2011 3:16 PM To: Mark Linder Cc: Roger Lee; Timm Borden; Rick Kitson; Carol Atwood Subject: RE: cell tower agreements Mark, I found the agreements.Answers below. They are in order of expiration. 15t one is ending soon. -Dave From: Mark Under Sent: Monday, November 21, 2011 3:10 PM To: David Woo Subject: cell tower agreements David, During the November 15 Council discussion regarding cell towers on city property, Council asked when the current agreements expire. The agreements I am aware of are: 1) T-Mobile Monopole at City Service Center- expires 12,/23/11. Is at$2,375.94/mo. 2) Nextel/Sprint/Metro PCS/Tower Co. monopine at City Service Center -expires 12/31/15.Currently $2,932.03/mo.With 5%annual increase. 3) T-Mobile Light Pole on Bollinger Road @Blaney Ave- expires 2028. Before then,automatically extends every 5 years unless T-Mobile opts-out,with 1st extension coming up in 2013. Has 4%annual increase. Currently they pay$22,947.23 annually or$1,912.27/month. 4) T-Mobile Pole at Memorial Park—expires 2040. Before then, automatic extensions every 5 years unless T-Mobile declines,with 1st extension in 2015. $2,150/mo. 15%increase every 5 years. I think they are interested in negotiating for a higher fee. Thanks Mark 1 /.&/4, e ENCROACHMENT AGREEMENT BETWEEN THE CITY OF CUPERTINO AND OMNIPOINT COMMUNICATIONS,INC. This Agreement is entered into as of Z9, ZoOe ("Effective Date") by and between the City of Cupertino, California, a California municipal corporation ("CITY") and Omnipoint Communications,Inc.,a Delaware corporation,d/b/a T-Mobile("COMPANY"). Recitals WHEREAS, COMPANY has made application to the CITY for an Encroachment Permit to install telecommunications facilities in the CITY right-of-way, hereinafter referred to as "ENCROACHMENT'; WHEREAS, CITY has approved the project plans and specifications, true copies of which are on file in the office of the City Engineer of Cupertino, and incorporated herein by reference; WHEREAS, CITY has a duty to regulate the construction, installation, operation and maintenance of ENCROACHMENTS in the public right of way, public easement and public service easement within the CITY to protect the public health,safety and welfare;and WHEREAS, COMPANY agrees to comply fully with all applicable terms, provisions and requirements of legislation enacted by the CITY;and NOW,THEREFORE, Agreements In consideration of the Recitals set forth above, the terms and conditions of this Agreement and other valuable consideration,the adequacy of which is hereby acknowledged,the parties hereto agree as follows: ARTICLE 1 INSTALLATION AND MAINTENANCE OF COMPANY EQUIPMENT 1.1 Permitted Installation. Subject to the issuance of encroachment permits, during the term of this Agreement, COMPANY may install its equipment ("EQUIPMENT') as shown on the T- Mobile SF 14949 Tin Tin Market improvement plans by MSA Architecture and Planning ("Work"), which improvement plans are attached hereto and made a part hereof, within CITY right-of way,as shown on the aforementioned improvement plans. 1 1.2 Encroachment Permits. COMPANY shall obtain encroachment permits from CITY for the installation of the EQUIPMENT and for any other work within the CITY's public right-of- ways. The installation of any aboveground Equipment shall require the approval of the CITY's Department of Public Works, not to be unreasonably withheld, conditioned or delayed. COMPANY shall submit detailed engineering plans of the proposed work certified by a professional engineer, including, but not limited to maps showing planned construction, a description of the nature an extent of underground work, a description of aerial work, a description of all planned above-ground facilities, such as amplifiers, generators and node boxes, a map of the location of all such facilities, a description of all noise-producing facilities, and a map showing the planned location of all conduit and other information as may be required by the City Engineer. COMPANY shall also submit all fees and bonds commonly required for such work. All work within the CITY right-of-way shall be performed in strict compliance with an encroachment permit. COMPANY shall comply with all applicable regulatory requirements, including, without limitation, compliance with the California Environmental Quality Act, and CITY requirements regarding directional boring. Within ten (10) business days of receiving City's written request, COMPANY shall promptly submit to CITY accurate as-built plans and record drawings certified by a professional engineer showing in detail, to the reasonable satisfaction of the City Engineer,and with as much accuracy as possible,the location,depth,and size of all COMPANY facilities in the CITY right-of-way. 1.3 Encroachment Permit Fee. It is further agreed that COMPANY shall pay any and all necessary direct expenses for inspection, checking, etc., incurred by CITY in connection with said Project,and that COMPANY shall have deposited the fee with CITY,within twenty(20)days of the full execution of this AGREEMENT. The fee is five percent(5%) of Company's construction costs in the right-of-way. Should construction cost vary materially from the estimate from which said sum is calculated, the City Engineer shall notify COMPANY of any additional sum due and owing as a result thereof. 1.4 Encroachment Permit Bonds. Prior to, or upon, execution of the permit, COMPANY shall have deposited with the CITY a performance bond naming CITY as obligee in the amount equal to one hundred percent (100%) of the value of the Work to be performed by or on behalf of COMPANY within and affecting the CITY right-of-way to guarantee and assure the faithful performance of COMPANY's obligations under this Agreement. At the same time, COMPANY shall have deposited with the CITY a labor and material bond naming CITY as obligee in the amount equal to fifty percent(50%)of the value of the Work to be performed by or on behalf of COMPANY within and affecting the CITY right-of-way to guarantee and assure payment by COMPANY of all laborers and for all material used in performing the Work. CITY shall have the right to draw against the performance bond in the event of a default by COMPANY or in the event that COMPANY fails to meet and fully perform any of its obligations, provided that COMPANY is first given thirty (30) days written notice of any intent to draw against the bond and an opportunity to cure.The form of the performance bond shall be mutually agreed upon by the parties. CITY shall have the right to draw against the labor and material bond in the event that COMPANY fails to make payment to all laborers and for all material used in performing the Work, provided that COMPANY is first given thirty (30)days written notice of any intent to draw against the bond and an opportunity to cure. The performance bond shall be refunded after the expiration of thirty (30) days from the acceptance of the Work by the CITY.The performance bond shall earn no interest. The labor and material bond 2 shall be refunded after the expiration of ninety (90) days from the acceptance of the Work by the City, if no liens on the Work or the underlying property that were placed because of failure by COMPANY to make payment to all laborers and for all material used in performing the Work have been found to exist. The labor and material bond shall earn no interest. 1.5 Coordination with Other Permittees. To the maximum extent possible and to the extent reasonably feasible and not unduly interfering with COMPANY's business plans or customer commitments, COMPANY shall coordinate its construction work with other companies known to be installing infrastructure in the CITY's public right-of-way. Prior to performing any work, COMPANY shall, to the best of its abilities and with the assistance of the CITY, contact all other telecommunications companies and other utilities using or with known plans to use the CITY's public right-of-way to coordinate COMPANY's work. 1.6 Radio Frequency Radiation Assessment. A comprehensive radio frequency radiation (RFR) assessment is required for all proposed personal wireless service facilities established in residential areas and facilities where the antennas are mounted less than 10 meters above ground level. The purpose of the assessment is to ensure that COMPANY's RFR emissions are within adopted federal RFR exposure standards as embodied in the Federal Communications Commission Guidelines published in 1996. COMPANY's assessment shall be prepared by a California state-registered radio frequency engineer or someone of superior qualifications. The assessment shall document existing ambient RFR emissions in those areas identified by CITY to contain existing RF radiators,and worst case projections of power densities and public exposure, that is ground level exposure and potential upper story residential exposure. This assessment is due prior to the CITY issuing any encroachment permits for installation of facilities. 1.7 Use of Other City Property. COMPANY is not authorized to use any CITY property located outside of the CITY right-of-way, nor any CITY infrastructure located within the CITY right-of-way,without the express written agreement of CITY. 1.8 Maintenance and Repair of Facilities. COMPANY shall be responsible for maintaining the EQUIPMENT and any surrounding or adjacent area affected by the use or maintenance of the EQUIPMENT. COMPANY shall be responsible for locating and marking underground utilities associated with the EQUIPMENT when an Underground Service Alert is issued. COMPANY shall be responsible for repairing damage to the EQUIPMENT, including knockdowns of the modified lightpole, in a timely fashion. ARTICLE 2 AUTHORIZED USES 2.1 Permitted Uses. This Agreement authorizes the installation, operation, use, maintenance, repair and removal of the EQUIPMENT in the City's right of way by COMPANY to provide all services it is otherwise permitted to provide, including, without limitation, those telephone services described in its Certificate of Public Convenience and Necessity issued by the California Public Utilities Commission and the lease of unbundled network elements. In order to provide video service to subscribers in the CITY, COMPANY shall obtain all necessary 3 permits and authorities required to do so, and inform the CITY of its intention to provide video service. 2.2 Interference. COMPANY shall not use the Equipment in any way that interferes with the use of the right of way by CITY or lessees or licensees of CITY using the right of way as of the Effective Date. Similarly, CITY shall not permit its lessees, licensees, employees, invitees or agents to to intentionally interfere with the operations of COMPANY. The foregoing notwithstanding, CITY and COMPANY each recognize that unforeseeable emergencies can from time to time arise that may cause either party to temporarily interfere with operations of the other within the public right of way. In such circumstances, the interfering party shall act to notify the other party and remove the interference in as timely a manner as possible. Both CITY and COMPANY shall make every effort to avoid creating any interference with the operations of the other in the public right of way. 2.3 Access. COMPANY shall have 24-hours-a-day, 7-days-a-week access to its Equipment at all times during the Initial Term of this Agreement and any Renewal Term, at no charge to COMPANY. COMPANY shall employ all necessary measures when accessing Equipment to protect the public safety and to maintain safe pedestrian and vehicle movement that might be affected by such access. ARTICLE 3 PAYMENTS 3.1 Payments. a. ANNUAL RENTAL FEE. COMPANY agrees to pay an annual fee to compensate CITY for the use of CITY right of way under the terms of this Agreement. The Annual Fee will be calculated at a base rate of One Thousand Seven Hundred Dollars and No Cents ($1,700.00)per month for the location of COMPANY equipment at the streetlight location and within a five-foot-wide easement in CITY right of way adjacent to 20041 Bollinger Road, Cupertino, California,as shown on the T-Mobile SF 14949 Tin Tin Market improvement plans by MSA Architecture and Planning, attached hereto and made a part hereof. The rental fee shall be due and payable in advance to CITY. The annual rental fee for the upcoming year shall be due and payable to CITY on the anniversary date of the Commencement Date(as defined below). Rent not received by CITY on or before the 30th day after the anniversary date shall be considered in default. The rental area will initially contain the equipment shown on the aforementioned improvement plans, including a modified lightpole, antennas, coaxial cable, and associated equipment. Additional equipment of a significant nature added to the rental area during the term of the Agreement shall be subject to prior review by CITY, as well as to an increased rental fee to be negotiated in such events by CITY and COMPANY. Significant additional equipment shall include, but not be limited to, equipment that alters the appearance of the original installation, 4 equipment that alters the basic service provided by COMPANY, as described in Article 2,above. Nothing in this agreement precludes the imposition of a franchise fee in the event that CITY enacts enabling measures applicable to providers of communications services such as those provided by COMPANY. b. ELECTRICITY CHARGES COMPANY shall be solely responsible for the payment of all electrical utility charges and connection charges to the applicable utility company based upon the antennas usage of electricity and applicable tariffs. COMPANY agrees to reimburse the CITY for any additional electrical utility charges incurred by the CITY solely based upon attachment of the antennas,provided the CITY shall furnish to COMPANY sufficient documentation form the utility company indicating with reasonable certainty that the additional charge was directly attributable to COMPANY antennas. 3.2 Rate Adjustment. The rate in Article 3.1 above will be adjusted annually according to this paragraph notwithstanding any other provision to the contrary: a. The rate shall be increased annually on January 1 by an amount equal to four percent (4%)of the rate for the previous year. b. The rate shall be adjusted annually on January 1 to include any additional equipment of a significant nature installed in the previous year. 3.3 Time of Payment. The first payment under this Agreement shall with twenty (20) days of the full execution of this Agreement. Thereafter, COMPANY shall annually make payment on the fifth business day after January 1 thereafter. A late payment charge on any unpaid amount shall accrue from the due date until paid at a rate of one and one-half percent(1-1/2%)per month until paid. CITY shall have the right to audit COMPANY's rent rolls to ensure proper calculation of payments, subject to any reasonable COMPANY requirements to ensure confidentiality of the records. 3.4 Place of Payment. Payment pursuant to this Article 3 shall be made to: City of Cupertino, Finance Department, 10300 Torre Avenue,Cupertino,CA 95014. ARTICLE 4 TERM AND TERMINATION 4.1 Term and Extension. This Agreement shall commence within three (3) of the Effective Date, or upon the date that COMPANY commences installation of its Equipment, which first occurs, ("Commencement Date"),and expire five(5)years after the Commencement Date of this 5 Agreement("Initial Term"). This Agreement shall thereafter automatically be extended for up to three(3) additional five (5)year terms ("Renewal Terms"), unless COMPANY delivers to CITY a notice of non-extension at least thirty (30) days prior to the expiration of the existing term, in which case this Agreement shall expire and not be further extended. Except to the extent that COMPANY has the right to continue to use and/or maintain the Equipment, COMPANY shall discontinue use of the equipment immediately upon expiration of this Agreement and within one hundred and twenty (120) days after expiration of this Agreement, COMPANY shall either completely remove the Equipment or, with CITY approval, abandon the Equipment in place. Notwithstanding the foregoing, the City Engineer may require a shorter removal period due to exigent circumstances and may authorize a longer period if it is in the public interest. If COMPANY fails to remove the facilities within the prescribed time period and CITY has not approved abandonment in place, CITY may remove the facilities at the expense of COMPANY, and COMPANY shall promptly reimburse the CITY for any and all expenses, including administrative overhead. Any removal or relocation work by COMPANY shall only be done pursuant to this Agreement. 4.2 CITY Termination. CITY may terminate this Agreement by giving sixty (60)days written notice upon the occurrence of either of the following: a. Failure of COMPANY to make any payment required by this Agreement, where such failure continues for a period of sixty (60) days after written notice by CITY;or b. Violation of any provision of this Agreement or any encroachment permit issued hereunder, where such violation is not cured within sixty (60) days after written notice by CITY or, where such violation cannot reasonably be cured within sixty (60) days, COMPANY fails to promptly begin such cure and thereafter bring it to completion in a reasonably expeditious fashion. a. 4.3 COMPANY Termination. COMPANY may terminate this Agreement by giving sixty(60)days written notice to CITY. ARTICLE 5 REMOVAL AND RELOCATION 5.1 Removal Due to CITY Project. Upon receipt of a demand from CITY, COMPANY, at its sole cost and expense, shall remove and relocate any EQUIPMENT facilities installed, used and/or maintained by COMPANY under this Agreement when such removal or relocation is made necessary due to any work being done by or on behalf of CITY or other applicable governmental agency, including but not limited to, any change of grade, alignment or width of any street, sidewalk or other public facility, installation of curbs or gutters, installation of landscaping, and/or construction, maintenance or operation of any underground or aboveground facilities by CITY. COMPANY shall complete the removal or relocation within one hundred and eighty (180) days of receipt of written notice from CITY or according to an agreed upon schedule with the CITY of no less than one hundred and twenty(120)days. Notwithstanding the foregoing,the City Engineer may require a shorter period due to exigent circumstances and may 6 authorize a longer period if it will not delay the CITY's project. If COMPANY fails to remove or relocate the facilities within the prescribed time period,CITY may remove the facilities at the expense of COMPANY, and COMPANY shall promptly reimburse the CITY any and all expenses, including administrative overhead. Any removal or relocation work by COMPANY shall only be done pursuant to an encroachment permit. 5.2 Abandonment. If the EQUIPMENT, or any part thereof, is abandoned for a period of one year or more, COMPANY shall notify CITY and shall promptly vacate and remove the EQUIPMENT or the abandoned part thereof at COMPANY's sole expense. Alternatively, CITY may allow COMPANY, in its sole discretion,to abandon the EQUIPMENT in place and convey it to CITY. If COMPANY fails to remove the EQUIPMENT as required by CITY within one hundred and twenty (120) days after receipt of notice from CITY, CITY may, in its sole discretion, (a)remove the EQUIPMENT at COMPANY's sole expense,which COMPANY shall promptly reimburse to CITY, or (b) deem the EQUIPMENT, or any part thereof, to have been conveyed to CITY. Notwithstanding the foregoing, if this Agreement expires or is terminated, the foregoing shall not apply to the extent it is preempted by California Public Utilities Code section 7901 or otherwise prohibited by other applicable law. 5.3 Repair of Rights-of-Way. Whenever the removal or relocation of facilities is required under this Agreement, COMPANY shall promptly repair and return the CITY right-of-way and adjacent property to the condition in which it existed as of the Effective Date, reasonable wear and tear and casualty excepted. If COMPANY fails to do so, CITY shall have the option to perform such work at COMPANY's sole expense, which COMPANY shall promptly reimburse to CITY within thirty(30)days of COMPANYS receipt of an invoice detailing such expenses. ARTICLE 6 TAXES 6.1 Taxes. COMPANY agrees that it will be solely responsible for any and all lawful taxes, fees and assessments relating to its use and maintenance of the EQUIPMENT. Pursuant to Section 107.6 of the California Revenue and Taxation Code, CITY hereby advises, and COMPANY recognizes and understands, that COMPANY's use of the public right-of-way may create a possessory interest subject to property taxation and that COMPANY will be subject to the payment of property taxes levied on such interest. If CITY receives notice of any personal property or real property tax assessment against CITY, which may affect COMPANY and is directly attributable to COMPANY's Equipment installation, CITY shall provide timely notice of the assessment to COMPANY sufficient to allow COMPANY to consent to or challenge such assessment, whether in a Court, administrative proceeding, or other venue, on behalf of CITY and/or COMPANY. Further, CITY shall provide to COMPANY any and all documentation associated with the assessment and shall execute any and all documents reasonably necessary to effectuate the intent of this Article 6.1. ARTICLE 7 INDEMNIFICATION 7 7.1 COMPANY shall indemnify, defend, and hold harmless the CITY and its officers,officials, agents,employees and volunteers against any and all liability,claims, actions,causes of action or demands whatsoever against any of them, including any injury to or death of any person or damage to property or other liability of any nature, to the extent caused by the installation and maintenance of the EQUIPMENT by COMPANY or COMPANY's employees, officers, officials, agents, transferees or independent contractors, except when such liability arises from CITY's negligence,willful misconduct or criminal acts. ARTICLE 8 INSURANCE 8.1 It is further agreed that: The COMPANY shall take out, and shall require any contractor engaged to perform the Work to take out, and maintain at all times during the performance and maintenance of the Work called for or required to be done hereunder, a policy of commercial general liability insurance naming the CITY and members of the City Council of the City of Cupertino individually and collectively, as additional insureds. Said separate policy shall provide bodily injury and property damage coverage to the foregoing named CITY and individuals covering all the Work performed by, for, or on behalf of said COMPANY. Both bodily injury and property damage insurance must be on an occurrence basis; and said policy or policies shall provide damage insurance must be on an occurrence basis; and said policy or policies shall provide that the coverage afforded thereby shall be primary coverage as to COMPANY's negligent acts or omissions, and if the CITY, its members of the City Council individually and collectively, and the officers, agents and employees of the CITY, individually and collectively, have other insurance against the loss covered by said policy or policies, that other insurance shall not be called upon to cover a loss under said additional policy. 8.2 The insurance carrier shall provide proof of their ratings. All ratings shall be a minimum of "Best A-7"in accordance with AM Best's guidelines. 8.3 Each of said policies of insurance shall provide coverage in the following minimum amounts: For bodily injury, One Million Dollars ($1,000,000 each person; Two Million Dollars ($2,000,000)each occurrence,property damage, One Million Dollars($1,000,000) on account of any one occurrence with an aggregate limit of not less than Two Million Dollars($2,000,000). 8.4 All policies will be issued by insures acceptable to CITY. COMPANY's minimum coverage obligations hereunder may be satisfied in whole or in part by a combination of primary and umbrella insurance coverage. 8.5 Within ten (10) days of the full execution of this Agreement, COMPANY shall provide the CITY evidence of said foregoing policy or policies of insurance in a format acceptable to CITY. Each such policy or policies shall bear an endorsement precluding the cancellation or reduction in coverage without giving the CITY at least thirty (30) days advance notice thereof. The CITY shall be shown as additionally insured on a separate "Additional Insured Owners, Lessees or Contractors" (Form A) or (Form B) Endorsement provided along with the evidence of said foregoing policy or policies of Insurance. The commercial general liability requires an 8 endorsement of aggregate limits of insurance per project and an endorsement of primary insurance. 8.6 In event that the Work covered herein should be mutually situated in or affect the area of jurisdiction of a separate municipality or political subdivision of the State of California, the policies of insurance required herein and above shall co-name such municipality or political subdivision and the provision set forth herein and above for the protection of the CITY shall equally apply to municipality and political subdivision. 8.7 The COMPANY'S insurance shall stay in full force and effect for the duration of this agreement,and until released by the City Engineer. ARTICLE 9 MISCELLANEOUS PROVISIONS 9.1 Uses Subordinate. This Agreement is not a grant by CITY of any property interest. This Agreement shall not create a vested right of any nature in COMPANY to use the public rights- of-way. This Agreement is subject and subordinate to the prior and continuing right of CITY and its assigns to use any and all of the public right-of-way for any lawful use. It is further subject to all deeds, easements, dedications, conditions, covenants, restrictions, encumbrances and claims of record as of the Effective Date that may affect the public right-of-way. COMPANY shall be solely responsible for obtaining all necessary permits and approvals from all public and private entities. 9.2 Notices. All notices which shall or may be given pursuant to this Agreement shall be in writing and transmitted through first class United States mail, certified and postage paid,or upon receipt if personally delivered or sent by next-business-day delivery via a nationally recognized overnight courier, to the following address or such other address of which a party may give written notice: City: City of Cupertino City Manager 10300 Torre Avenue Cupertino, CA 95014 Company: T-Mobile USA,Inc. 12920 SE 38th Street Bellevue,WA 98006 Attn: PCS Lease Administrator With a Copy to: T-Mobile USA, Inc. 12920 SE 38th Street Bellevue,WA 98006 Attn: Legal Dept. 9 With Copies to: Omnipoint Communications,Inc. 2380-A Bisso Lane Concord, CA 94520 Attn: Lease Administration Manager Attn: Legal Dept. 9.3 Assignment. This Agreement shall not be assigned by COMPANY without CITY's prior written consent, which shall not be unreasonably withheld, and any such attempted assignment shall be void; provided however, COMPANY may assign this Agreement, without CITY's approval,to any person controlling,controlled by,or under common control with COMPANY or entity that, acquires COMPANY's fifty-one percent (51%) or more of COMPANY's stock or assets. Upon such assignment, Tenant shall be relieved of all liabilities and obligations hereunder and Landlord shall look solely to the assignee for performance under this Lease and all obligations hereunder. COMPANY shall give to CITY thirty (30) days' prior written notice of such transfer. The sale, lease or other transfer of interests by COMPANY of its facilities to third parties in the normal course of its business shall not be deemed an Assignment. Nothing in this Agreement shall be deemed to prohibit COMPANY from assigning any monies that may be payable to COMPANY under the provisions of this Agreement. 9.4 Entire Agreement. This Agreement contains the entire understanding between the parties with respect to the subject matter herein. There are no representations, agreements or understandings (whether oral or written) between or among the parties relating to the subject matter of this Agreement which are not fully expressed herein. 9.5 Amendments. This Agreement may not be amended except pursuant to a written instrument signed by all parties. 9.6 Severability. If any one or more of the provisions of this Agreement shall be held by a court competent jurisdiction in a final judicial action to be void,voidable,or unenforceable, such provision(s) shall be deemed separable from the remaining provisions of this Agreement and shall in no way affect the validity of the remaining portions of this Agreement. 9.7 Construction of Agreement. This Agreement shall be governed and construed by and in accordance with the laws of the State of California. In the event that suit is brought by a party to this Agreement, the parties agree that trial of such action shall be venued exclusively in the state courts of California, County of Santa Clara, or in the United States District Court, Northern District of California, in the County of Santa Clara. 9.8 Successors. This Agreement is binding upon the successors,assigns and transferees of the parties hereto. 10 9.9 Order of Precedence. To the extent the provisions of this Agreement and any permit required to be obtained by COMPANY from CITY are in conflict,the provisions of the Agreement shall take precedence. 9.10 Waiver of CITY's Lien. CITY hereby waives any and all lien rights it may have, statutory or otherwise, concerning the Equipment or any portion thereof, which shall be deemed personal property for the purposes of this Agreement, whether or not the same is deemed real or personal property under applicable laws, and CITY gives COMPANY the right to remove all or any portion of the same from time to time, whether before or after a default under this Agreement, in COMPANY's sole discretion and without CITY's consent. IN WITNESS WHEREOF,the parties have executed this Agreement on the dates set forth below. Omnipoint Communications, Inc., a Delaware corporation, d/b/a T- i o By: : . _ ■ -7" -1 .1 r - tr 1 1 .........van:.utr:, :6' 51 1 i' 111111 (viCk. .....) 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'-' 1----L 1:ii i 4--- —, . , 11---- - .: : _ - _, , ... -?. — .--,,, 5 '''gD-m B .. .....„................ , ,__ 1.11 ''''t ,'.".' • ' CT,:;- tgii 55E r - U 11-h i eat, 1 impli...• 1. - - .....,.., i i 5 '' ri'a ;•-1 a. ,,a =611Zi =tRi 0; rr— ..,, __ ,, ....._. .........VIMMI g, t I Er: if R ti. r----.-.Th cf b. i 4 2 I i 1:1 a Ell ?e g$1 ........4.____, I __ L 1 i I' . 0 i p..- ,,,g gl _s 11 L., 5‘51 = Es s- s- cc us L' z .1,,,,,A\nig 3,0,-ADM,-jig,-A.pi.,as Vd Ildqii ye,,4,■__ i i ynr T • •Mobile•- August 22,2008 City Clerk: Kimberly Smith 10300 Torre Avenue Cupertino,CA 95014 Re: OCI Site Number SF14949/Cupertino,CA Dear Ms. Smith, General Order 159-A(GO-159-A)of the California Public Utilities Commission(CPUC)requires cellular carriers to send a notification Ietter of a utility's intent to construct a cellular facility to CPUC's Safety and Enforcement Division within 15 business days of receipt of all requisite local Iand use approvals. The notification letter shall state that such approvals have been received, or that no land use approvals are required. As set forth in GO 159-A, copies of the notification letter are required to be served concurrently by mail on the local governmental agency. Where the affected local governmental agency is a city, service of the notification letter to the city shall consist of service of separate copies of the notification letter upon the City Manager,the City Planning Director and the City Clerk. In order to comply with these requirements,I have enclosed a copy of the notification letter for our project within your city limits. If you have any questions or require additional information,please contact Tom Derkas at(925) 521-5987. Sincerely, prLiusL-Db0, Renee Davis Compliance Consultant Omnipoint Communications Inc. 4 Attachments T-Mobile USA,Inc. 1855 Gateway Blvd.,Suite 900 Concord,CA 94520 ATTACHMENT A .rip • 1. Prom Site Identification Number: SF14949 Site Name: Tin Tin Market Site Address: - 20041 Bollinger Avenue County: Santa Clara Site Location: Cupertino, CA 95014 Assessor's Parcel Number: 369-34-052 Latitude: NAD 83 37- 18-41.19 N Longitude: NAD 83 122-01 - 27.19 W 2. Project Description: Number of Antennas to be installed: 3 Tower Design: Monopole Tower Appearance: Street Light pole Tower Height: A) Building Height N/A B) Structure Height 32'-0"' C) Top of Antenna Height 31'-6" Lease Area: 7'x 11' 3. Business addresses of all Governmental Agencies City of Cupertino, CA 4. Land Use Approval: 5. If Land Use approval was not required: Explain reason for exemption and attach documentation from the jurisdiction(Le. copy of ordinance)that officially states exemption: T-Mobi4144112008 1855 Gateway Blvd..Suite 900 Concord,CA 94520 T • •Mobile•° August 22,2008 Safety&Enforcement Division California Public Utilities Commission 505 Van Ness Avenue San Francisco, CA 94102 RE: OCI Site Number SF14949/Cupertino,_CA This is to provide the Commission with notice pursuant to the provisions of General Order No. 159A of the Public Utilities Commi.ssion of the State of California("CPUC") that: X (a) The cellular company has obtained all requisite land use approval for the project described in Attachment A. (b) That no land use approval is required because A copy of this notification is also being provided to the appropriate local governmental agency for its information. Should there be any questions regarding this project,or if you disagree with any of the information contained herein,please contact Tom Derkas at (925) 521-5987 of Omnipoint Communications, Inc. dba T-Mobile,USA corporate identification number U-3056-C. Very truly your Renee Davis Regulatory Compliance cc: City of Cupertino 4 T-Mobile USA,Inc. 1855 Gateway Blvd.,Suite 900 Concord,CA 94520 OWNER AUTHORIZATION AGREEMENT -, Market: SF—South Bay Site Number: SF15041C • Site Name: Memorial Park Site Address: 21267 Stevens Creek Blvd.,Cupertino,CA 95014 RE: Property described as: APN:326-29-006 (the"Property") City of Cupertino Is the owner of the Property (the "Owner") and has the authority to enter into a lease agreement with Omnipoint Communications, Inc. ("T-Mobile") concerning the portion of the Property that T-Mobile seeks to occupy. Owner hereby grants T-Mobile and its agents a revocable right to enter the Property to perform any reasonable tests that T-Mobile deems desirable to determine the feasibility of constructing and operating its communications facility upon the Property,including but not limited to 1)radio frequency testing; 2)soils testing;3)on-site feasibility assessment;and 4)filing of zoning applications(the"Access Right"). Owner may revoke the Access Right at any time by delivering written notice to T-Mobile by certified mail, return receipt requested,at the following address: T-Mobile USA,Inc. With a Copy to: 12920 SE 386 Street Omnipoint Communications Bellevue,WA 98006 2280 Bisso Lane Attn: PCS Lease Administrator Concord,CA 94520 With a copy to: Attn: Legal Dept. Attn: Lease Administrator This notice will be effective three (3) days after actual receipt by T-Mobile, provided, however, that T- Mobile may still enter the Property to remove any equipment it has placed there. Owner further agrees to cooperate with T-Mobile in obtaining, at T-Mobile's expense, all licenses and permits or authorizations required for T-Mobile's use of the Property from all applicable government and/or regulatory entities (including, without limitation, zoning and land use authorities, and the Federal Communications Commission)including appointing T-Mobile as agent for all land use and zoning permit applications, and Owner agrees to cooperate with and to allow T-Mobile,at no cost to Owner,to obtain a title report,zoning approvals,variances,and land-use permits. T-Mobile agrees to repair any damage to Property caused by T-Mobile's use of the Access Right. T- Mobile further agrees to indemnify, defend and hold Owner harmless from and against any and all damages, losses and expenses arising out of or resulting from any claim,action or other proceeding that is based upon any negligent act or omission or willful misconduct of T-Mobile or its employees or agents, arising in connection with the Access Right.. EACH PARTY ACKNOWLEDGES THAT THE OTHER HAS.MADE NO REPRESENTATIONS OR COMMITMENTS THAT A LEASE AGREEMENT CONCERNING THE PROPERTY WILL BE ENTERED INTO IN THE FUTURE. OWNER: Ci Q, .e '' 11 J By: " Wy' � ((. (e-08 Name: c �+ t Its: '.-'"`-fi"-k 114-41-"D/- ) AKa Sato Cons■ l+in9 • • SITE LEASE WITH OPTION THIS SITE LEASE WITH OPTION (this"Lease") is by and between City of Cupertino, a municipal corporation("Landlord") and T- Mobile West Corporation,a Delaware corporation("Tenant"). 1. Option to Lease. (a)In consideration of the payment of Two Thousand One Hundred Fifty and no/100 dollars($2,150.00)(the"Option Fee")by Tenant to Landlord, Landlord hereby grants to Tenant an option to lease the use of a portion of the real property described in the attached Exhibit A (the "Property"),on the terms and conditions set forth herein(the"Option"). Tie Option shall be for an initial term of twelve(12)months,commencing on the Effective Date(as defined below)(the"Option Period"). The Option Period may be extended by Tenant for an additional twelve(12)months upon written notice to Landlord and payment of the sum of Two Thousand One Hundred Fifty and no/100 dollars($2,150.00)("Additional Option Fee")at any time prior to the end of the Option Period. (b)During the Option Period and any extension thereof,and during the term of this Lease,Landlord agrees to cooperate with Tenant in obtaining, at Tenant's expense, all licenses and permits or authorizations required for Tenant's use of the Premises (as defined below) from all applicable government and/or regulatory entities(including,without limitation,zoning and land use authorities,and the Federal Communications Commission("FCC")("Governmental Approvals"),including all land use and zoning permit applications,and Landlord agrees to cooperate with and to allow Tenant,at no cost to Landlord,to obtain a title report,zoning approvals and variances,land-use permits,and Landlord expressly grants to Tenant a right of access to the Property to perform surveys, soils tests, and other engineering procedures or environmental investigations on the Property necessary to determine that Tenant's use of the Premises wilf be compatible with Tenant's engineering specifications, system design, operations and Governmental Approvals. Notwithstanding the foregoing,Tenant may not change the zoning classification of the Property without first obtaining Landlord's written consent. During the Option Period acrd any extension thereof, Landlord agrees that it will not interfere with Tenant's efforts to secure other licenses and permits or authorizations that relate to other property. During the Option Period and any extension thereof,Tenant may exercise the Option by so notifying Landlord in writing,at Landlord's address in accordance with Section 12 hereof. (c)If Tenant exercises the Option,then, subject to the following terms and conditions,Landlord hereby leases to Tenant the use of that portion of the Property sufficient for placement of the Antenna Facilities(as defined below),together with all necessary space and easements for access and utilities, as generally described and depicted in the attached Exhibit B (collectively referred to hereinafter as the "Premises"). The Premises,located at 21267 Stevens Creek Blvd.,Cupertino,CA 95014 comprises approximately two hundred forty(240)square feet. 2. Term. The initial term of this Lease shall be five(5)years commencing on the date of the exercise of the Option(the"Commencement Date"),and terminating at midnight on the last day of the month of the initial term(the"Initial Term"). 3. Renewal. Tenant shall have the right to extend this Lease for five(5)additional and successive five-year terms (each a"Renewal Term")on the same terms and conditions as set forth herein. This Lease shall automatically renew for each successive Renewal Term unless Tenant notifies Landlord,in writing,of Tenant's intention not to renew this Lease,at least thirty(30)days prior to the expiration of the Initial Term or any Renewal Term. If Tenant shall remain in possession of the Premises at the expiration of this Lease or any Renewal Term without a written agreement,such tenancy shall be deemed a month-to-month tenancy under the same terms and conditions of this Lease. 4. Rent. (a)From and after the Commencement Date,Tenant shall pay Landlord or designee,as rent,Two Thousand One Hundred Fifty and no/100 dollars($2,150.00)per month("Rent"). The first payment of Rent shall'e due within twenty(20)days following the Commencement Date and shall be prorated based on the days remaining in the month following rte Commencement Date,and thereafter Rent will be payable monthly in advance by the fifth day of each month to Landlord at the address specified in Section 12 below. If this Lease is terminated for any reason(other than a default by Tenant)at a time other than on the last day of a month,Rent shall be prorated as of the date of termination and all prepaid Rent shall be immediately refunded to Tenant.Landlord,its successors,assigns and/or designee,if any,will submit to Tenant any documents required by Tenant in connection with the payment of Rent,including,without limitation,an IRS Form W-9. (b)Upon the commencement of any Renewal Term hereunder,Rent will be increased for each such Renewal Term over the monthly or annual installment of Rent payable during the preceding Renewal Term by fifteen percent(15%). 5. Permitted Use. The Premises may be used by Tenant for the transmission and reception of radio communication signals and for the construction,installation,operation,maintenance,repair,removal or ref la cement of related facilities,including,without limitation,tower and base, antennas,microwave dishes,equipment shelters and/or cabinets and related activities. 6. Interference. Tenant shall not use the Premises in any way which interferes with the use of the Property by Landlord,or lessees or licensees of Landlord with equipment installed prior in time to Tenant's installation. Similarly,Landlord shall not use,nor shall Landlord permit its lessees,licensees,employees,invitees or agents to use,any portion of the Property in any way which interferes with the operations of Tenant. Such interference shall be deemed a material breach by the interfering party,who shall,upon written notice from the other,be responsible for terminating said interference. In the event any such interference does not cease promptly, the parties acknowledge that continuing interference may cause irreparable injury and,therefore,the injured party shall have the right,in addition to any other rights that it may have at law or in equity,to bring a court action to enjoin such interference or to terminate this Lease immediately upon written notice. Site Number: SF1504I �i CA Site Lease-version 9.21.07 Site Name: Memorial Park Market: SF04 7. improvements;Utilities;Access. (a) Tenant shall have the right, at its expense, to erect and maintain on the Premises improvements, personal property and facilities necessary to operate its communications system,including,without limitation,radio transmitting and receiving antennas,microwave dishes,tower and base, equipment shelters and/or cabinets and related cables and utility lines and a location based system, including, without limitation, antenna(s),coaxial cable,base units,location based systems,and other associated equipment(collectively,the"Antenna Facilities"). Tenant shall have the right to alter,replace,expand,enhance and upgrade the Antenna Facilities at any time during the term of this Lease. Tenant shall cause all construction to occur lien-free and in compliance with all applicable laws and ordinances,and shall discharge or bond any mechanic's lien filed or recorded. Landlord acknowledges that it shall not interfere with any aspects of construction, including, without limitation, attempting to direct construction personnel as to the location of or method of installation of the Antenna Facilities and the Easements(as defined below)("Construction Interference"). Landlord further acknowledges that it will be responsible for any costs and damages(including,fines and penalties)that are directly attributable to Landlord's Construction Interference. The Antenna Facilities shall remain the exclusive property of Tenant and shall not be considered fixtures. Tenant shall have the right to remove the Antenna Facilities at any time during and upon the expiration or termination of this Lease. (b) Tenant, at its expense, may use any and all appropriate means of restricting access to the Antenna Facilities, including, without limitation,the construction of a fence. (c)Tenant shall,at Tenant's expense,keep and maintain the Antenna Facilities now or hereafter located on the Property in commercially reasonable condition and repair during the term of this Lease,normal wear and tear and casualty excepted. Upon termination or expiration of this Lease,the Premises shall be returned to Landlord in good,usable condition,normal wear and tear and casualty excepted. (d)Tenant shall have the right to install utilities,at Tenant's expense,and to improve the present utilities on the Property(including,but not limited to,the installation of emergency power generators). Landlorc agrees to use reasonable efforts in assisting Tenant to acquire necessary utility service. Tenant shall,wherever practicable, install separate meters for utilities used on the Property by Tenant. Landlord shall diligently correct any variation,interruption or failure of utility service. (e)As partial consideration for Rent paid under this Lease,Landlord hereby grants Tenant an easement in,under and across the Property for ingress,egress, utilities and access(including access for the purposes described in Section 1)to the Premises adequate to install and maintain utilities,which include,but are not limited to,the installation of power and telephone service cable,and to service the Premises and the Antenna Facilities at all times during the Initial Term of this Lease and any Renewal Term (collectively, the "Easements"). The Easements provided hereunder shall have the same term as this Lease. (f)Tenant shall have 24-hours-a-day,7-days-a-week access to the Premises("Access")at all times during the Initial Term of this Lease and any Renewal Term at no additional charge to the Tenant. (g) Tenant, at its sole expense, shall have the right to remove and dispose of the existing light pole standard currently located in the approximate area designated on the Exhibit B. Following removal, Tenant shall have the right to replace the former light pole standard with a replacement light pole standard structurally capable of supporting Tenant's antennas and other ancillary equipment(the"Light Pole Replacement"). Upon installation of the Light Pole Replacement, Tenant shall maintain the Light Pole Replacement during the term of this Lease provided that Landlord shall be solely responsible for changing out any light fixtures located thereon as necessary. Upon the expiration or earlier termination of this Lease,title and ownership of the Light Pole Replacement shall automatically,without need for execution of further documentation transfer to Landlord in its"AS IS"and"WHERE IS"condition without warranty cr representation of any kind. Following such transfer, Landlord will be solely responsible for the ongoing maintenance and upkeep of the Light Pole Replacement and Tenant shall have no further responsibility in relation thereto. (h)Tenant shall comply with the conditions of approval set forth in City of Cupertino Planning Commission Resolution No.6581 adopted February 9,2010,attached hereto as Exhibit C. 8. Termination. Except as otherwise provided herein,this Lease may be terminated,without any penalty or further liability as follows: (a)upon thirty(30)days'written notice by Landlord if Tenant fails to cure a default for payment of amounts due under this Lease within that thirty(30)day period; (b) immediately if Tenant notifies Landlord of unacceptable results of any title report, environmental or soil tests prior to Tenant's installation of the Antenna Facilities on the Premises, or if Tenant is enable to obtain, maintain, or otherwise forfeits or cancels any license (including,without limitation,an FCC license),permit or any Governmental Approval necessary to the installation and/or operation of the Antenna Facilities or Tenant's business; (c)upon thirty(30)days'written notice by Tenant if the Property or the Antenna Facilities are,or become unacceptable under Tenant's design or engineering specifications for its Antenna Facilities or the communications system to which the Antenna Facilities belong; (d) immediately upon written notice by Tenant if the Premises or the Antenna Facilities are destroyed or damaged so as in Tenant's reasonable judgment to substantially and adversely affect the effective use of the Antenna Facilities. In such event,all rights and obligations of the parties shall cease as of the date of the damage or destruction,and Tenant shall be entitled to the reimbursement of any Rent prepaid by Tenant. If Tenant elects to continue this Lease,then all Rent shall abate until the Premises and/or the Antenna Facilities are restored to the condition existing immediately prior to such damage or destruction;or (e)at the time title to the Property transfers to a condemning authority,pursuant to a taking of all or a portion of the Property sufficient in Tenant's determination to render the Premises unsuitable for Tenant's use Landlord and Tenant shall each be entitled to pursue their own separate awards with respect to such taking. Sale of all or part of the Property to a purchaser with the power of eminent domain in the face of the exercise of the power shall be treated as a taking by condemnation;or (f) upon thirty (30) days written notice by Tenant if Term.. Jetermines that the Property or Antenna Facilities are inappropriate or unnecessary for Tenant's operations due to economic reasons. 9. Default and Right to Cure. Notwithstanding anything contained herein to the contrary and without waiving any other rights granted to it at law or in equity,each party shall have the right,but not the obligation,to terminate this Lease on written notice pursuant to Section 12 hereof,to take effect immediately,if the other party(i)fails to perform any covenant for a period of thirty(30)days after receipt of written notice thereof to cure. 10. Taxes. Landlord shall pay when due all real property taxes for the Property,including the Premises. In the event that Landlord fails to pay any such real property taxes or other fees and assessments,Tenant shall have the right,but not the obligation,to pay such owed amounts and deduct them from Rent amounts due under this Lease. Notwithstanding t1 e foregoing,Tenant shall pay any personal property tax,real property tax or any other tax or fee which are directly attributable to the presence or installation of the Tenant's Antenna Facilities,only for so long as this Lease has not expired of its own terms or is not terminated by either party. Landlord hereby grants to Tenant the right to challenge,whether in a Court, Administrative Proceeding,or other venue,on behalf of Landlord and/or Tenant,any personal property or real property tax assessments that may affect Tenant. If Landlord receives notice of any personal property or real property tax assessment against the Landlord,which may affect Tenant and is directly attributable to Tenant's installation,Landlord shall provide timely notice of the assessment to Tenant sufficient to allow Tenant to consent to or challenge such assessment. Further,Landlord shall provide to Tenant any and all documentation associated with the assessment and shall execute any and all documents reasonably necessary to effectuate the intent of this Section 10. 11. Insurance and Subrogation and Indemnification. (a) Tenant shall provide Commercial General Liability Ins,srance in an aggregate amount of One Million and no/100 dollars ($1,000,000.00). Tenant may satisfy this requirement by obtaining the appropriate endorsement to any master policy of liability insurance Tenant may maintain. (b)Landlord and Tenant hereby mutually release each other(and their successors or assigns)from liability and waive all right of recovery against the other for any loss or damage covered by their respective first party property insurance policies for all perils insured thereunder. In the event of such insured loss,neither party's insurance company shall have a subrogated claim against the other. To the extent loss or damage is not covered by their first party property insurance policies,Landlord and Tenant each agree to indemnify and hold harmless the other party from and against any and all claims,damages,cost and expenses,including reasonable attorney fees,to the extent caused by or arising out of (a)the negligent acts or omissions or willful misconduct in the operations or activities on the Property by the indemnifying party or the employees, agents, contractors,licensees,tenants and/or subtenants of the indemnifying party, or(b)a breach of any obligation of the indemnifying party under this Lease. Notwithstanding the foregoing, this indemnification shall not extend to indirect, special, incidental or consequential damages, including, without limitation,loss of profits,income or business opportunities to the indemnified party or anyone claiming through the indemnified party. The indemnifying party's obligations under this section are contingent upon (i) its receiving prompt written notice of any event giving rise to an obligation to indemnifying the other party and(ii)the indemnified party s granting it the right to control the defense and settlement of the same. Notwithstanding anything to the contrary in this Lease,the parties hereby confirm that the provisions of this section shall survive the expiration or termination of this Lease. Tenant shall not be responsible to Landlord,or any third-party,for any claims,costs or damages(including,fines and penalties)attributable to any pre-existing violations of applicable codes,statutes or other regulations governing the Property,including the Premises. 12. Notices. All notices,requests,demands and other communications shall be in writing and are effective three(3)days after deposit in the U.S.mail,certified and postage paid,or upon receipt if personally delivered or sent by next-business-day delivery via a nationally recognized overnight courier to the addresses set forth below. Landlord or Tenant may from time to time designate any other address for this purpose by providing written notice to the other party. If to Tenant,to: With a copy to: T-Mobile USA,Inc. Attn: Legal Dept. 12920 SE 38th Street � Bellevue,WA 98006 Attn: PCS Lease Administrator If to Landlord,to: a City of Cupertino With a copy to: Attn:Rick Kitson Attn: Legal Dept. 10300 Torre Avenue Cupertino,CA 95014 And with a copy to: T-Mobile West Corporation Send Rent payments to: 2380-A Bisso Lane City of Cupertino Concord,CA 94520 10300 Torre Avenue Atm:Lease Administration Manager Cupertino, CA 95014 • 13. Quiet Enjoyment,Title and Authority. Landlord covenants t.nd warrants to Tenant that(i)Landlord has full right,power and authority to execute this Lease; (ii)it has good and unencumbered title to the Property free and clear of any liens or mortgages, except those disclosed to Tenant and which will not interfere with Tenant's rights to or use of the Premises;and(iii)execution and performance of this Lease will not violate any laws,ordinances,covenants,or the provisions of any mortgage,lease. or other agreement binding on Landlord. Landlord covenants that at all times during the term of this Lease,Tenant's quiet enjoyment of the Premises or any part thereof shall not be disturbed as long as Tenant is not in default beyond any applicable grace or cure period. 14. Environmental Laws. Landlord represents that it has no knowledge of any substance,chemical or waste(collectively, "Hazardous Substance")on the Property that is identified as hazardous,toxic or dangerous in any applicable federal,state or local law or regulation. Landlord and Tenant shall not introduce or use any Hazardous Substance on the Property in violation of any applicable law. Landlord shall be responsible for, and shall promptly conduct any investigation and remediation as required by any applicable environmental laws,all spills or other releases of any Hazardous Substance not caused solely by Tenant,that have occurred or which may occur on the Property. Each party agrees to defend,indemnify and hold harmless the other from and against any and all administrative and judicial actions and rulings, claims, causes of action,demands and liability (collectively, "Claims") including, but not limited to, damages, costs, expenses, assessments, penalties, fines, losses, judgments and reasonable attorney fees that the indemnitee may suffer or incur due to the existence or discovery of any Hazardous Substances on the Property or the migration of any Hazardous Substance to other properties or the release of any Hazardous Substance into the environment (collectively, "Actions"),that relate to or arise from the indemnitor's activities on the Property.Landlord agrees to defend,indemnify and hold Tenant harmless from Claims resulting from Actions on the Property not caused by Landlord or Tenant prior to and during the Initial Term and any Renewal Term of this Lease. The indemnifications in this section specifically include,without limitation,costs incurred in connection with any investigation of site conditions or any cleanup, remedial, removal or restoration work required by any governmental authority. This Section 14 shall survive the termination or expiration of this Lease. 15. Assignment and Subleasing. Tenant may, upon written nctice to Landlord, assign or transfer(by sublease or otherwise)its rights arising under this Lease to any corporation,partnership or other entity wh.ch(i)is controlled by,controlling or under common control with Tenant, (ii)shall merge or consolidate with or into Tenant,(iii)shall succeed to all or substantially all the assets,property and business of Tenant,or(iv)is an affiliate or subsidiary or other party as may be required in connectior with any offering,merger,acquisition,recognized security exchange or financing. Under all other circumstances, such assignment or transfer shall require Landlord's written consent, which consent shall not be unreasonably withheld,conditioned or delayed.Upon assignment,Tenant shall be relieved of all liabilities and obligations hereunder and Landlord shall look solely to the assignee for performance under this Lease and all obligations hereunder. Tenant may not sublease the Premises,without Landlord's prior written consent,such consent not to be unreasonably withheld,conditioned or delayed. Additionally,Tenant may,upon notice to Landlord,collaterally sssign or grant a security interest in this Lease and the Antenna Facilities, and may assign this Lease and the Antenna Facilities to any mortgagees or holders of security interests, including their successors or assigns (collectively"Secured Parties"). In such event,Landlord shall execute such consent to leasehold financing as may reasonably be required by such Secured Parties. 16. Successors and Assigns. This Lease and the Easements granted herein shall run with the land,and shall be binding upon and inure to the benefit of the parties,their respective successors,personal representatives and assigns. 17. Waiver of Landlord's Lien. Landlord hereby waives an and all lien rights it may have, statutory or otherwise, concerning the Antenna Facilities or any portion thereof,which shall be deemed personal property for the purposes of this Lease,whether or not the same is deemed real or personal property under applicable laws,and Landlord gives Tenant and Secured Parties the right to remove all or any portion of the same from time to time,whether before or after a default under this Lease,in Tenant's and/or Secured Parties' sole discretion and without Landlord's consent. 18. Miscellaneous. (a)The prevailing party in any litigation arising hereunder shall be entitled to its reasonable attorneys'fees and court costs,including appeals,if any. (b)Each party agrees to furnish to the other,within twenty (20)days after request,such truthful estoppel information as the other may reasonably request. (c) This Lease constitutes the entire agreement and understanding of the parties, and supersedes all offers, negotiations and other agreements. There are no representations or understandings of any kind rot set forth herein. Any amendments to this Lease must be in writing and executed by both parties. (d)Each party agrees to cooperate with the other in executing any documents(including a Memorandum of Lease in substantially the form attached hereto as Exhibit C)necessary to protect its rights or use of the Premises. The Memorandum of Lease may be recorded in place of this Lease by either party. In the event the Property is encumbered by a mortgage or deed of trust,Landlord agrees,upon request of Tenant,to obtain and furnish to Tenant a non-disturbance and attornment agreement for each such mortgage or deed of trust, in a form reasonably acceptable to Tenant. Tenant may obtain title insurance on its interest in the Premises. Landlord agrees to execute such documents as the title company may require in connection therewith. (e)This Lease shall be construed in accordance with the laws of the state in which the Property is located. Site Number: SF15041 CA Site Lease-version 9.21.07 Site Name: Memorial Park Market: SF04 (f)If any term of this Lease is found to be void or invalid,such finding shall not affect the remaining terms of this Lease,which shall continue in full force and effect. The parties agree that if any provisions are deemed not enforceable,they shall be deemed modified to the extent necessary to make them enforceable. Any questions of particular interpretation shall not be interpreted against the draftsman, but rather in accordance with the fair meaning thereof. No provision of this Lease will be deemed waived by either party unless expressly waived in writing signed by the waiving party. No waiver shall be implied by delay or ally other act or omission of either party. No waiver by either party of any provision of this Lease shall be deemed a waiver of such provision with reEpect to any subsequent matter relating to such provision. (g)The persons who have executed this Lease represent and warrant that they are duly authorized to execute this Lease in their individual or representative capacity as indicated. (h)This Lease may be executed in any number of counterpart ccpies,each of which shall be deemed an original,but all of which together shall constitute a single instrument. (i)All Exhibits referred to herein and any Addenda are incorpernted herein for all purposes. The parties understand and acknowledge that Exhibit A(the legal description of the Property)and Exhibit B(the Premises location within the Property),may be attached to this Lease and the Memorandum of Lease,in preliminary form. Accordingly,the parties agree that upon the preparation of final,more complete exhibits,Exhibits A, and/or B,as the case may be,which may have been attached hereto in preliminary form,may be replaced by Tenant with such final,more complete exhibit(s). The terms of all Exhibits are incorporated herein for all purposes. (j)If Landlord is represented by any broker or any other leasing agent,Landlord is responsible for all commission fee or other payment to such agent,and agrees to indemnify and hold Tenant harmless from all claims by such broker or anyone claiming through such broker. If Tenant is represented by any broker or any other leasing agent,Tenant is responsible for all commission fee or other payment to such agent,and agrees to indemnify and hold Landlord harmless from all claims by such broker or anyone claiming through such broker The effective date of this Lease is the date of execution by the la:.t party to sign(the"Effective Date"). LANDLORD: of Cupe ino__,a municipal•.rporation CA By: . . _ l J -- Printed Name: • ;■ -- Title: _� �_ — "-- Date: . 9 . (e) Approved as to form- By: /w Printed Name: 1r o ^\CO Y`Ct..e L I\ -- Title: \}O h r,, -- Date: (o`CS. ' 10 _- TENANT: T-Mobile West Corporation,a Delaware corporation By: -- Printed Name: Martin Vernon Area Director Northern CA -- Title: Date: —4-'Z i l l -- N-__1011-_,,,n.e.4.4.g..4 0_7y/, T-Mobi Legal Approv EXHIBIT A Legal Description The Property is legally described as follows: LEGAL DESCRIPTION REAL PROPERTY LOCATED IN THE CITY OF CUPERTINO, COUNTY OF SANTA CLARA, STATE OF CALIFORNIA BEING AN EIGHT AND ONE—HALF FOOT BY 30 FOOT (8.50' X 30.00') RECTANGULAR LEASE AREA SITUATED ENTIRELY WITHIN THAT CERTAIN 14.5± ACRE (NET) PARCEL OF LAND DESCRIBED IN GRANT DEED TO THE CITY OF CUPERTINO RECORDED AUGUST 4, 1965 IN BOOK 7057, AT PAGE 660, AND AS SAID PARCEL IS SHOWN ON THAT CERTAIN RECORD OF SURVEY MAP FILED FOR RECORD 3/01/1968, IN BOOK 234 AT PAGE 8, RECORDS OF SAID COUNTY, SAID PARCEL BEING A PORTION OF CUPERTINO MEMORIAL PARK AND SAID LEASE AREA BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE NORTHEAST CORNER OF SAID 14.5± ACRE PARCEL AS SAID PARCEL IS SHOWN ON SAID MAP, SAID POINT ALSO BEING A POINT ON THE SOUTHERLY RIGHT OF WAY LINE OF CHRISTENSEN DRIVE; THENCE ALONG THE EAST UNE OF SAID PARCEL, SOUTH 00'02'03" EAST, 343.89 FEET; THENCE LEAVING SAID UNE AT A RIGHT ANGLE, SOUTH 89'57'57" EAST, 133.88 FEET TO THE NORTHEAST CORNER OF AND POINT OF BEGINNING FOR THE LEASE AREA HEREIN DESCRIBED; THENCE IN A CLOCKWISE DIRECTION AROUND THE PERIMETER OF SAID LEASE THE FO_LOWING FOUR (4) COURSES AND DISTANCES: 1.) SOUTH 26'32'18" WEST, 30.00 FEET; THENCE, 2.) NORTH 63'27'42" WEST, 8.50 FEET; THENCE, 3.) NORTH 26'32'18" EAST, 30.00 FEET; THENCE, 4.) SOUTH 63'27'42" EAST, 8.50 FEET TO THE POINT OF BEGINNING AND CONTAINING 255 SQUARE FEET. TOGETHER WITH ACCESS AND U11UTY EASEMENTS AS SHOWN OR AS NEEDED TO SERVICE THE LEASE AREA. EXHIBIT B The location of the Premises within the Property(together with access and utilities)is more particularly described and depicted as follows: [Enter Premises description here or on attachment(s).] However,it is expressly agreed and understood by and between the Land Lord and Tenant that the exact and precise location of the Tenant's Antenna Facilities are subject to review and approval by the planning and/or zoning Boards having jurisdiction over the"Premises". Therefore,it is expressly agreed and understood by and between Landlord and Tenant that the precise location of the Premises as shown on Exhibit "B"may be modified by the Tenant in order to comply with and obtain necessary planning and/or zoning approvals,and any and all other approvals necessary for Tenant's intended use of the property. The Premises as described herein may therefore be modified by the Tenant to reflect the final engineering design. An amended Exhibit"B"(if necessary)will be provided by the Tenant and attached to the lease in place of the existing Exhibit "B",a copy of which will be provided to the Landlord for review prior to being incorporated into the lease. L 1 CHRISTERSEN DRIVE 20'AZIMUTH I __ ! 0 I r��� k ',..A�� Y\ r _ _ . . PROMO Mew Vt.1 :j1F Its ® 0 r .. -45VES DRIVE ^\ l8 260'AZIMUTH hr u .. _ r l- i 140•AZIMUTH o II R; A! 2 O ,� i___) RAW/ AVE '=I i .■ ... �. 1Di ■ '�\ . \.,,C.,:-` • ;{ - 1APR.11649006 uEwRw aux Z i' / ` \ '\ \ , �,I y \ \ ` . �; g ■-/ �— �__. __. ----- STEVENS CREEK BLVD OVERALL SITE PLAN • , - • \---\...._.. ',114......6 . , / A = )„. /.4/, ...,,, ., •-:.:,1 . / i/.1 1., i i•q.s,L; -ILKA:[NMI fay-*AC--41 •-.0•T / r VAT'hi 0 7,a v .., / +)70,,:„. ..; '';' / ,. i":■;14T,...LZ 20°AZIMUTH . ---.----.* ''''',..1'.. ),*T':n**.ttLE•e.Tr,,.• / • PR E.-,rr T-WItiLf • • *T.?O, CAC / ' • T-fif 4 IroX.",',.IT IN iNt , , ''. 7.14,,*Mei 14,1,NEE. oarA TA;T•f*tura .* • 1 t fa*.lo..-MI•-;e I it.E.•..-.1: . . ••E`1.*;,E, . , ■,_ . f. Ar 26V AZIMUTH i wit . - .,, 1 140°AZIMUTH 4.- ,' ., , , -'--- - -.,..._ ; -.....„.... --'4. r \I' I /, 4,4:11 "... • • ,...".-'....... r , __i__ _ , _ i ANTENNA CONFIGURATION CH I . , '-% 4b ; ...7...i... ■ c NAO., ,.....*•.cd...*t. '1,TEr •,;•--44 w•rE..-EL 1 re.,11. I .,., ...-.. ..-,..,-. 1 I 1 I - i # i i r.1.2 a ■ ,.....1...-...w.• - R t - ,, r , . i , I / ' • /`,..”--'A..1 .1- • ' 6 _ - . ..r.ort.r... TE,E* . • . ..-Lo,.....,....1.*,4; /, r _ • i TNT J.T•Als.•Tf*.*••■•*;•,"••-,f,„,-*,r,rnoltr..T.i.ennTia...1,..I',7+'Att.! 'nor,. L • ..11 1, i S , i • / •,' v ."' . , . 1 , / ;-• \--,-11 •-' .• -1 .. \ .., .., / • ,- .4_,1,4 .....EL=‘TE....,— , •, :75: / , ' - , ■tr-, . .,; 11 -1 e cant Fil . e.E. .,, 1 ... / *.•,.76%;, -: -...1,..-..„. I I / `-- . ■ *, '4--- BTS CABINET i . i ENLARGED EOUIPMENT AREA PLAN _ [ .1 ria ■ ,! f .1 2 BTS CABINET/PANEL ANTENNA OFT AILS Exhibit C—Conditions of Approval ASA-2009-04 CITY OF CUPERTINO 10300 Torre Avenue Cupertino,Cal:'.fomia 95014 RESOLUTION NO. 6581 OF THE PLANNING COMMISSION OF THE CITY OF CUPERTINO APPROVNG AN ARCHITECTURAL AND SITE APPROVAL TO ALLOW THE REPLACEMENT OF AN EXISTING 60-FOOT TALL BASEBALL FIELD LIGHT POLE WITH A PERSONAL WIRELESS SERVICE FACILITY,CONSISTING OF A BASE EQUIPMENT ENCLOSURE AND A 75-FOOT TALL MONOPOLE THAT WILL CARRY SIX PANEL ANTENNAS,A TEMPORARY MICROWAVE DISH AND THE BASEBALL FIELD LIGHTS AT AN EXISTING PARK LOCATED AT 21267 STEVENS CREEK BOULEVARD(MEMORIAL PARK) SECTION I: FINDINGS WHEREAS, the Planning Commission of the City of Cupertino received an application for an Architectural and Site Approval,as described in Section II of this Resolution;and WHEREAS, the necessary public notices have been given in accordance with the Procedural Ordinance of the City of Cupertino,and the Planning Commission has held one or more public hearings on this matter;and WHEREAS,the applicant has met the burden of proof required to support said application;and has satisfied the following requirements: 1) The proposed use, at the proposed Iocation, will not be detrimental or injurious to property or improvements in the vicinity, and will not be detrimental to the public health,safety,general welfare,or converu:ence;and 2) The proposed use will be located and conducted in a manner in accord with the Cupertino Comprehensive General Plan; the purpose of the Architectural and Site Review Chapter of the Cupertino Municipal Code;. the Cupertino Wireless Facilities Master Plan; and the Wireless Communications Facilities Ordinance, Chapter 19.108 of the Cupertino Municipal Code. NOW,THEREFORE, BE IT RESOLVED: That after careful consideration of maps,facts,ex:.libits,testimony and other evidence submitted in this matter,the application for Architectural and Site Approval is hereby approved,subject to the conditions which are enumerated in this Resolution beginning on Page 2 thereof;and Resolution No.6581 ASA-2C09-04 February 9,2010 Page 2 That the subconclusions upon which the finding:; and conditions specified in this resolution are based and contained in the public hearing record concerning Application No. ASA-2009-04 as set forth in the Minutes of the Planning Commission Meeting of February 9, 2010, and are incorporated by reference as though fully set forth herein. SECTION II: PROTECT DESCRIPTION Application No.: ASA-2009-04 Applicant: Dayna Aguirre (for T-Mobile) Property Owner: City of Cupertino Location: 21267 Stevens Creek Boi;:levard (Memorial Park) SECTION III: CONDITIONS ADMINISTERED BY THE COMMUNITY DEVELOPMENT DEPT. 1. APPROVED EXHIBITS Approval is based on Exhibits titled: "SF15041 Memorial Park/Stevens Creek Boulevard/Cupertino, CA 95014/County of Santa Clara" dated 01/29/10 and consisting of six sheets labeled T-1,C1, A-4 through A-4,except as may be amended by the conditions contained in this resolution. 2. NOTICE OF FEES, DEDICATIONS, RESERVATIONS OR OTHER EXACTIONS The Conditions of Project Approval set forth herein may include certain fees, dedication requirements, reservation requirements,and other exactions. Pursuant to Government Code Section 66020(d) (1), these Conditions constitute written notice of a statement of the amount of such fees, and a description of the dedications, reservations, and other exactions. You are hereby further notified that the 90-day approval period in which you may protest these fees, dedications, reservations, and other exactions, pursuant to Government Code Section 66020(a), has begun. If you fail to file a protest within this 90-day period complying with all of the requirements of Section 66020,you will be legally barred from later challenging such exactions. 3. CO-LOCATION OF ANTENNAE The monopole shall be structurally designed to accommodate the co-location of additional antennae from other wireless carriers. The co-location agreement shall be at market rates with reasonable compensation to the mast owner. 4. ABANDONMENT If after installation, the aerial is not used for its permitted purpose for a continuous period of 18 months, said aerial and associated facilities shall be removed. The applicant shall bear the entire cost of demolition. • Resolution No.6581 ASA-2009-04 February 9,2010 Page 3 5. EXPIRATION DATE This use permit shall expire ten(10) years after the effective date of the permit. The applicant may apply for a renewal of the use permit at which time the Planning Commission may review the state of wireless communication technologies, camouflage techniques and maintenance to determine if the visual impact of the aerial facility can be reduced. 6. PERSONAL WIRELESS SERVICE FACILITY MAINTENANCE The applicant shall be responsible for the operation and maintenance of the new personal wireless service facility, including the base equipment, monopole and baseball field lights. The applicant shall provide the City with company contact information for the purposes of notification for maintenance and repair work. 7. EQUIPMENT ENCLOSURE SCREENING The base equipment shall be screened from public view as determined by the Director of Community Development prior to issuance of building permits. 8. MONOPOLE ARTWORK The artwork (sculpture) final details, including size, materials, color and placement location on the monopole shall be approved by the Director of Community Development after consultation with the Fine Arts Commission. 9. POST-CONSTRUCTION RADIO FREQUENCY ENERGY EXPOSURE TESTING Prior to the commercial operation of this facility, the applicant shall submit a field test report on the radio frequency energy emissions to the Director of Community Development confirming that public exposures to generated radio frequency energy (measured at full power) complies with federal safety standards at ground level and nearest residential Property line(measured at second floor level). PASSED AND ADOPTED this 9th day of February 2010, at a Regular Meeting of the Planning Commission of the City of Cupertino by the following roll call vote: AYES: COMMISSIONERS:Chairperson Brophy,Vice Chair Lee,Kaneda, Miller NOES: COMMISSIONERS: none ABSTAIN: COMMISSIONERS: none .- ABSENT: COMMISSIONERS: Giefer ATTEST: APPROVED: /s/Aarti Shrivastava /s/Paul Brophy Aarti Shrivastava Paul Brophy,Chair Community Development Director Planning Commission g:/planning/pdreport/res/2005/ASA-2009-04 res.doc EXC-2009-02 CITY OF CUPERTINO 10300 Torre Avenue Cupertino,California 95014 RESOLUTION NO. 6582 OF THE PLANNING COMMISSION OF THE CITY OF CUPERTINO APPROVING A HEIGHT EXCEPTION TO ALLOW SIX ANTENNAS TO BE MOUNTED AT A HEIGHT OF 60-75 FEET ON A REPLACEMENT LIGHT POLE WHERE 55 FEET IS ALLOWED AT 21267 STEVENS CREEK BOULEVARD (MEMORIAL PARK) SECTION I: PROTECT DESCRIPTION Application No.: EXC-2009-02 Applicant: Dayna Aguirre (for T-Mobile) Location: 21267 Stevens Creek Boulevard (Memorial Park) SECTION II: FINDINGS FOR EXCEPTION WHEREAS, in order to provide height flexibility in situations where practical difficulties, unnecessary hardships or results inconsistent with the purpose and intent of Chapter 19.108 occurs, an applicant for development may file an exception request to seek approval to deviate from the standards; and WHEREAS, the Planning Commission finds the following with regards to the Height Exception for this application: 1. That the literal enforcement of the provisions of this title will result in restrictions inconsistent with the spirit and intent of this title in that the extra antenna height above the ordinance maximum of 55 feet is needed to provide a safe work environment for personnel who must maintain the field lights; 2. That the proposed project will not be injurious to property or improvements in the area nor be materially detrimental to the public health, safety, or welfare in that, visually, the antennas will be mounted in-line with the rest of the monopole and the diameter of the radome approximates the diameter of the pole. 3. The proposed development will not create a hazardous condition for pedestrian or vehicular traffic because it is not sited within the travel ways or sight Iines of pedestrian or vehicular traffic. Resolution No.6582 EXC-2009-02 February 9,2010 Page 2 NOW,THEREFORE, BE IT RESOLVED: That after careful consideration of maps, facts, exhibits, testimony and other evidence submitted in this matter, application no. EXC-2009-02 is hereby approved;and That the subconclusions upon which the findings and conditions specified in this Resolution are based and contained in the Public Hearing record concerning Application EXC-2009-02, as set forth in the Minutes of the Planning Commission Meeting of February 9,2010,and are incorporated by reference herein. SECTION III: CONDITIONS ADMINISTERED BY THE COMMUNITY DEVELOPMENT DEPT. 1. APPROVED EXHIBITS Approval is based on Exhibits titled: "SF15041 Memorial Park/Stevens Creek Boulevard/Cupertino, CA 95014/County of Santa Clara" dated 01/29/10 and consisting of six sheets labeled T-1, Cl, fit•-1 through A-4, except as may be amended by the conditions contained in this resolution. 2. NOTICE OF FEES,DEDICATIONS, RESERVATIONS OR OTHER EXACTIONS The Conditions of Project Approval set forth herein may include certain fees, dedication requirements, reservation requirements, and other exactions. Pursuant to Government Code Section 66020(d) (1), these Conditions constitute written notice of a statement of the amount of such fees, and a description of the dedications, reservations, and other exactions. You are hereby further notified that the 90-day approval period in which you may protest these fees, dedications, reservations, and other exactions, pursuant to Government: Code Section 66020(a), has begun. If you fail to file a protest within this 90-day period complying with all of the requirements of Section 66020,you will be legally barred from later challenging such exactions. PASSED AND ADOPTED this 9th day of February 2010, at a regular meeting of the Planning Commission of the City of Cupertino by the following roll call vote: AYES: COMMISSIONERS:Chairperscn Brophy,Vice Chair Lee, Kaneda, Miller NOES: COMMISSIONERS: none ABSTAIN: COMMISSIONERS: none ABSENT: COMMISSIONERS:Giefer - ATTEST: APPROVED: /s/Aarti Shrivastava /s/Paul Brophy Aarti Shrivastava Paul Brophy,Chair Director of Community Development Planning Commission "� ,, I 1°nO IN / / VV\i'e j Pt he_ cnT ��„ir --� City Hall 10300 Torre Avenue Cupertino,CA 95014-3255 (408)777-3354 CITY OF Fax: (408)777-3333 CUPERJINO DEPARTMENT OF PUBLIC WORKS Summary AGENDA ITEM I c AGENDA DATE December 6, 2005 SUBJECT AND ISSUE Adoption of Resolution No. 05- )N b3 , authorizing the City Manager to execute a five-year extension of the Antenna Site Lease agreement between the City of Cupertino and Nextel of California, Inc., a Delaware Corporation dba Nextel Communications. BACKGROUND On June 19, 2000, Council approved a five-year Antenna Site Lease Agreement with Nextel Communications (copy attached) installation of mobile wireless communication facilities at the Cupertino Service Center. The area leased to Nextel by the City is approximately 600 square feet at the rear of the Service Center adjacent to the freeway. The facilities consist of an antenna pole, previously approved by the Planning Commission, and a small building housing wireless communication equipment. After being fully executed, the agreement took effect on December 31, 2000. Contained in the agreement, whose original term will expire on December 31, 2005, is a provision for two successive five-year extensions, each to be exercised at the prerogative of Nextel, for a maximum total term of 15 years. After the 15 year maximum term, the agreement would have to be renegotiated. Nextel Communications wishes to exercise the first five-year extension of the agreement for the period beginning December 31, 2005, and ending on December 31, 2010. All covenants, terms and conditions, including but not limited to payment of rent, maintenance of insurance, indemnification, repairs, utility costs, waste and destruction, as contained in the existing Antenna Site Lease Agreement would remain in effect with the extension. In addition, a cost of living increase of 5% per year will continue to be applied annually to the rent for use of the site, per the terms of the agreement. Based on the initial lease amount of $1,800.00 per month, the fee upon renewal will begin at approximately $2,300.00 per month, and increase to almost $2,800.00 per month in the fifth year of the extension. Approval of the attached resolution will authorize the City Manager to execute the first five-year extension of the agreement. I .5- 1 Printed on Recycled Paper FISCAL IMPACT By extending Nextel's Antenna Site Lease Agreement for mobile wireless communication facilities space at the Cupertino Service Center, the City will receive revenue of approximately $27,600.00 in the first year of the agreement extension, and increasing amounts each year, up to approximately $33,500.00 in the fifth year of the extension. This will amount to a total of more than $152,300.00 over the five-year extension of the Site Lease Agreement, STAFF RECOMMENDATION Staff recommends that the City Council adopt Resolution No. 05- 103, authorizing the City Manager to execute a five-year extension of the Antenna Site Lease agreement between the City of Cupertino and Nextel of California, Inc., a Delaware Corporation dba Nextel Communications. Submitted by: Approved for submission to the City Council: CALL clay( Ralph A. Qualls, Jr. David W. Knapp Director of Public Works City Manager 1 S- LOVIA Antenna Site Lease Agreement De-C- 1 5 between the CITY of Cupertino and Nextel of California,Inc., a Delaware Corporation, d/b/a Nextel Communications This Antenna Site Lease Agreement("Lease") is executed by and between the CITY of Cupertino, a municipal corporation, hereinafter called"CITY" and Nextel of California, Inc., a Delaware corporation, d/b/a Nextel Communications, hereinafter called"LESSEE." I. DEMISED PREMISES CITY hereby leases and LESSEE leases from CITY a portion of that certain real property situated in the CITY of Cupertino, State of California, commonly known as Cupertino Service Center("Site") described and delineated as specifically shown on Exhibit A attached hereto, consisting of approximately six hundred(600) square feet of land. Said real property is hereinafter called the"PREMISES" and is described in Exhibit B attached hereto. A. PERMITTED USE The PREMISES may be used by LESSEE for any lawful activity in connection with the provision of mobile/wireless communication services, including without limitation, the transmission and the reception of radio communication signals on various frequencies and the construction,maintenance and operation of related communication facilities. LESSEE shall not use the PREMISES for any activity or in any manner which would tend to lower the character of the PREMISES, or in such a manner as to create any nuisance which disturbs, interferes with, or annoys any other neighboring person or entity. B. CONSTRUCTED IMPROVEMENTS It is contemplated that LESS twenty construct upon the Premises a telecommunications facility which shall consist of ten work of foot equipment shelter in which Lessee shall place its communications equipment. Before any construction, alteration, or repair is commenced on the PREMISES, LESSEE shall comply with all of the following conditions and provisions unless CITY's written waiver is first obtained: 1. All new structures shall first comply with CITY's applicable development standards and review process, including review and approval of required conditional use permits by the Planning Commission or CITY Council as appropriate. 2. LESSEE shall notify.CITY in writing of LESSEE'S intention of uch commence The any work of improvements at least five(5) working days prior to commencement shall specify the approximate location and nature of the intended improvements. CITY shall have the right to post and maintain on the PREMISES any notices of non-responsibility provided for under applicable law, and to inspect the PREMISES in relation to compliance with this Lease, other permits of the construction at all reasonable times. 3. LESSEE shall secure and deliver to CITY, care of the Public Works Department, adequate evidence of compliance with all applicable building codes, ordinances, regulations, and requirements for all permits and approvals, including but not restricted to grading 1 permits, building permits,zoning and planning requirements, and approvals from various governmental agencies and bodies regulating water, sewer, and any other utility or improvement on the Site. 4. LESSEE shall provide required bonds or other security securing completion of • any new structures to be constructed upon the Site,pursuant to section I(B)(5) of this Lease, and shall furnish CITY, care of the Public Works Department,with evidence of said security prior to undertaking any such construction on the PREMISES. 5. Prior to any work being conducted upon the Premises,LESSEE shall have provided to the CITY a bond or Certificate of Deposit as a security deposit in the amount of ten thousand dollars ($10,000.00) to cover the costs for the removal of LESSEE's equipment in and upon the PREMISES and any repairs that may be required to the PREMISES which are the responsibility of the LESSEE to repair under this lease. The CITY shall have the right to draw against the deposit in the event of a default by LESSEE or to cover the costs for the removal of the encroachment and any repairs that may be required to the PREMISES in the event that LESSEE fails to meet and fully perform any of its obligations hereunder. Within ten days of receipt of written notice from the CITY, LESSEE shall renew or replace such sums of money as shall bring the security deposit current. No release of the bond or certificate of deposit held as a security deposit shall be made except upon approval of the CITY, in accordance with California law. LESSEE agrees that the bond or certificate of deposit shall be held in full force and effect for the Term of this Agreement. The Security Deposit shall be released by the CITY upon completion of the removal of the encroachment and any repairs necessary to restore the PREMISES to their original condition as of the Commencement Date of the lease excepting reasonable wear and tear beyond the control or without the fault or neglect of the Lessee. The deposit shall be released thirty (30) days after the CITY Engineer's inspection and acceptance of the work. 6. Once any approved work of improvement is begun,LESSEE shall diligently prosecute completion of said work or construction. All work shall be performed in a good and workmanlike manner, and shall substantially comply with plans and specifications approved by CITY and as required by this Lease. C. SOIL CONDITIONS CITY makes no covenants or warranties respecting the condition of the soil or'subsoil or any other condition of the PREMISES that might affect LESSEE's ability to construct the monopole antenna upon the PREMISES. D. UTILITY INSTALLATION ACCESS CITY grants to LESSEE the right to install utilities, for the purpose of serving the PREMISES only,which may be, in CITY's sole opinion, reasonably required. 2 S—`I II. TERM OF LEASE • A. COMMENCEMENT AND TERMINATION The term of this Lease (Term)er) shall be five(5) years commencing with the issuance of a local building permit allowing LEASE to construct its mobile/wireless communications facilities on the PREMISES, or December 31, 2000, whichever is earlier(hereinafter referred to as"Commencement Date"). At the option of LESSEE,the term of this Lease may be renewed for successive five-year periods of time(hereinafter referred to as "Renewal Term"), but in no event, shall the Lease be extended for more than two Renewal Terms without the negotiation and execution of a new lease. Not withstanding the above, the CITY may terminate the lease prior to the expiration of its term or any Renewal Term,under the following circumstances: 1. If LESSEE is in material breach; 2. If the CITY is required by federal, state or local law to regain possession of the PREMISES; 3. If the CITY no longer utilizes the Site as a city facility. E,the Upon a breach or default of any of the terms or obligations of rdefault EIf LESSEE CITY shall serve written notice upon LESSEE reasonably describing the breach o fails to cure a monetary breach or default within thirty (30) days or a non-monetary breach within sixty (60) days this LEASE shall be subject to termination at the option of the CITY. The CITY shall be entitled to exercise all rights and remedies hereby reserved under this LEASE or made available under applicable laws. Termination of this LEASE by the CITY shall constitute the withdrawal of any consent or authorization of CITY for LESSEE to perform any construction.or other work under this LEASE excepting only that work necessary to remove all equipment and to repair the PREMISES to their original condition existing at the Commencement Date of the LEASE,reasonable wear and tear beyond the control or without the fault or neglect of the LESSEE excepted. LESSEE may terminate this LEASE at any time during the term of this LEASE or any Renewal Tenn thereof upon thirty- (30) day's notice to the CITY with no further liability except as expressly provided herein. Upon such early termination by LESSEE,the CITY shall make a pro-rata refund to LESSEE of the rental fee paid to the CITY by LESSEE prorated to the date of CITY'S acceptance of the removal of the LESSEE'S FACILITIES. • In the event of termination by either party, LESSEE shall immediately cease all work being performed under this LEASE, excepting only that work necessary for LESSEE to remove all equipment and repair the PREMISES in accordance with Section II(B). B. SURRENDER OF PREMISES LESSEE shall remove all LESSEE Facilities at its sole expense upon cancellation, expiration or earlier termination of this Lease. LESSEE shall repair any damage to the PREMISES caused by such removal and shall return the PREMISES to the 3 S • •• condition which existed on the Commencement Date,reasonable wear and tear and damages beyond the control or without the fault or neglect of LESSEE excepted. If LESSEE fails to remove the Facilities within thirty (30) days of the termination or expiration of this LEASE, CITY may remove and store the Facilities at LESSEE's sole cost and expense. If LESSEE does not claim the Facilities. within thirty (30) days following said removal, and provided that CITY has given LESSEE and any third party financing entity thirty (30) days prior written notice, the Facilities shall be deemed abandoned and City May dispose of the Facilities. LESSEE shall notify CITY of the name and address of the third party financing entity for notice purposes herein and the CITY will be notified of any changes with respect to said entity and its address. LESSEE's obligation to observe and perform the covenants of this paragraph shall survive the end of this Lease. C. LIEN RIGHTS CITYwaives any lien rights it may have concerning the Facilities which are deemed LESSEE's personal property and not fixtures, and LESSEE has the right to remove the same at any time without CITY consent. CITYacknowledges that LESSEE has entered into a fmancing arrangement including promissory notes and financial and security agreements for the financing of the Facilities (the"Collateral") with a third party financing entity (and may in the future enter into additional financing arrangements with other financing entities). In connection therewith, CITY(i) consents to the installation of the Collateral; (ii) disclaims any interest in the Collateral, as fixtures or otherwise; and(iii) agrees that the Collateral shall be exempt from execution, foreclosure, sale,levy, attachment, or distress for any rent due or to become due and that such Collateral may be removed at any time without recourse to legal proceedings, except as when deemed abandoned pursuant to Section II,Paragraph B of this Lease. D. ACCESS TO IMPROVEMENTS 1. LESSEE shall have the right(but•not the obligation) at any time following the full execution of this Lease and prior to the Commencement Date, to enter the PREMISES for the purpose of making necessary inspections and engineering surveys (and soil tests where applicable) and other reasonably necessary tests (hereinafter singularly and collectively referred to as"Tests") to determine the suitability of the PREMISES for LESSEE's Facilities (as defined herein) and for the purpose of preparing for the construction of LESSEE'S Facilities. During any Tests or pre- construction work, LESSEE will have insurance as set forth in Section IV,B, 4, Insurance. LESSEE will notify CITY of any proposed Tests or pre-construction work and will coordinate the scheduling of same with CITY. If LESSEE determines that the PREMISES are unsuitable for LESSEE's contemplated use,then LESSEE will notify CITY and this Lease will terminate. 2. LESSEE has the right to construct,maintain and operate on the PREMISES radio communication facilities, including but not limited to, radio frequency transmitting and receiving equipment,batteries, utility lines,transmission lines, radio frequency transmitting and receiving antennas and supporting structures and improvements (hereinafter referred to as "Facilities"). In connection therewith,LESSEE has the right to do all work reasonably necessary to prepare, add, maintain and alter the PREMISES for LESSEE's communications operations and to install utility lines and transmission lines connecting antennas to transmitters and receivers. All of LESSEE's construction and installation work shall be performed at LESSEE's sole cost and expense and in good 4 • • workmanlike manner. Title to LESSEE's Facilities Facilities lleremain the property of LESSEE LESSEE shall be held by LESSEE. All of LESSEE's and are not fixtures. LESSEE has the right to remove all LESSEE'S Facilities at its sole expense on or before the expiration or termination of this Lease. 3. At no charge to LESSEE, CITY shall provide access to the PREMISES to LESSEE,LESSEE's employees, agents, contractors and subcontractors five(5) days a week during working hours and on other days and times by special arrangement with CITY. Not withstanding the foregoing, in the event of an emergency,Lessee shall have access to the PREMISES at all hours, seven (7) days a week. Twenty-four hour emergency access is available through County Communications. CITY represents and warrants that it has full rights of ingress and egress from the PREMISES, and hereby grants such rights to LESSEE to the extent:required to construct,maintain, install and operate LESSEE's Facilities on the PREMISES. LESSEE's exercises of such rights shall not cause undue inconvenience to CITY,nor shall it compromise the security of CITY's adjoining Site. 4. CITY shall maintain all access roadways from the nearest public roadway to the PREMISES in a manner sufficient to allow access. CITY shall be responsible for maintaining and or LESSEE's repairing such roadways, at its sole expense, except for any damage caused by LESSEE ESSEE shall agents or assigns. If LESSEE or LESSEE's agents or assigns cause any such damage, promptly repair same. • 5. LESSEE shall have the right to install utilities, at LESSEE'S expense, and to improve the present utilities on or near the PREMISES (including,but not limited to the installation of emergency back-up power). Subject to CITY's approval,of the location,which approval shall not be unreasonably withheld,LESSEE shall have the right to place utilities on(or to bring utilities across) CITY's Property in order to service the PREMISES and LESSEE's Facilities. 6. LESSEE shall fully and promptly pay for all utilities furnished to the PREMISES for the use, operation and maintenance of LESSEE'S Facilities. III. RENT A. BASIC RENT 1. Upon the Commencement Date,LESSEE shall pay to CITY, as rent,the slim of one thousand eight hundred dollars ($1,800.00)per month. If the Commencement Date is other than the first day of a calendar month,LESSEE may pay.on the first day of the Term the prorated Rent for the remainder of the calendar month in which the Term commences, and thereafter, LESSEE shall pay a full month's rent on the first day of each calendar month, except that payment shall be prorated for the final fractional month of this Lease, or if this Lease is terminated before the expiration of any month for which Rent should have been paid. 2. These amounts will be due and payable on or before the first day of each month during the term of this Lease. The rent will be paid in advance to the Department of Finance, City of 5 • Cupertino, 10300 Torre Avenue, Cupertino, CA 95014,without prior demand and without any abatement, deduction or setoff. B. LATE PAYMENT CHARGE The rent shall be delinquent if not received by the close of the business day on the 10th of each calendar month. Such unpaid amounts of rent shall be subject to a late payment charge equal to ten percent(10%) of such unpaid amounts. This late payment charge is intended to compensate CITY for its additional administrative costs resulting from LESSEE's failure, and has been agreed upon by CITY and LESSEE, after negotiation, as a reasonable estimate of the additional administrative costs which will be incurred by CITY as a result of LESSEE'S failure;the actual cost being impossible to ascertain at the time of this Lease. This late payment will constitute liquidated damages due the CITY and will be paid to CITY together with such unpaid amounts. Acceptance of the payment of this late charge will not constitute a waiver by CITY of any default by LESSEE under this Lease. • C. ADJUSTMENT OF RENT The rent in subparagraph A above will be adjusted according to this paragraph notwithstanding any provision in that subparagraph to the contrary: 1. Rent shall be increased on each anniversary of the Commencement Date by an amount equal to Five Percent (5%) of the rent for the previous year. IV. COVENANTS AND CONDITIONS A. CITY COVENANTS 1. Quiet Possession _LESSEE,paying the said rent and performing the covenants and Leases herein, shall and may at all times during the said term peaceably and quietly have,hold and enjoy the said PREMISES for the term thereof. - 2. Assignment and Subleasing The parties agree that the expertise and experience of LESSEE are material considerations inducing the CITY to enter into this LEASE. LESSEE shall not assign, sell,Lease, merge, consolidate or transfer any interest in this LEASE nor the performance of any of LESSEE's obligations herein, without prior written consent of the CITY, and any attempt by LESSEE to so assign this LEASE or any rights, duties or obligations arising herein shall be void and of no effect. The consent of the CITY will not be unreasonably withheld. Notwithstanding the foregoing, LESSEE shall have the right to assign its rights under this LEASE without the consent of the CITY to any of its subsidiaries or affiliates or its parent company or to any successor in interest or entity acquiring fifty-one percent(51%) or more of its stocks or assets, provided however, that LESSEE shall not be released from any obligation under this LEASE without the written consent of the CITY. Additionally, Lessee may assign, mortgage, pledge,hypothecate or otherwise transfer without consent its interest in this Lease to any financing entity, or agent on behalf of any financing entity to whom Lessee (i) has obligations for borrowed money or in respect of guaranties thereof, (ii)has obligations evidenced by bonds, debentures, notes or similar instruments, or (iii) has obligations under or with respect to letters of credit, bankers acceptances and similar facilities or in respect of guaranties thereof. • 6 D 3. Hazardous Waste CITY represents and warrants that any activity concerning Hazardous Materials on the Site and the PREMISES which CITY and/or its agents undertakes or permits to be undertaken by other Lessees, Licensees or Permittees of CITY will be done in accordance with all local, state and federal regulations governing the proper use, storage, transportation and disposal of said materials. In addition to the indemnity provided in section IVB4(b), CITY shall indemnify, defend,protect and hold LESSEE harmless from and against any and all claims, loss, proceedings, damages, causes of action, liability, costs or expenses (including attorney's fees) arising as a result of any Hazardous Materials which exist within the property, common areas,building or PREMISES as of the date first written above and any Hazardous Materials which are present within the property, common areas,building or PREMISES after said date which are not the result of the activities or omission of LESSEE. Notwithstanding the foregoing, nothing herein is intended to obligate LESSEE to bring the PREMISES into compliance with applicable requirements, ordinances and statutes unless such compliance is triggered by LESSEE's use, operations or LESSEE's Facilities constructed upon the PREMISES. Not withstanding any other provision of this Lease,LESSEE relies upon the representations stated herein as a material inducement for entering into this Lease. B. LESSEE COVENANTS 1. Compliance with Law LESSEE agrees, at its sole cost and expense, to comply with all the requirements, ordinances and statutes now in force, or which may hereafter be in force, of all municipal, county, state and federal authorities,pertaining to the said PREMISES, or the operations conducted thereon. 2. Taxes LESSEE agrees to pay before delinquency all taxes, adjustments, and fees assessed or levied upon LESSEE or the Leased PREMISES, including the land and any buildings, structures,machines, appliances or other property or improvements erected, installed or maintained by LESSEE or by reason of the business or other activities of LESSEE upon or in connection with the Leased PREMISES. LESSEE recognizes and agrees that this Lease may create a possessory interest subject to property taxation, and that LESSEE may be subject to further payment of property or possessory interest taxes without any compensatory reduction in rent due to the CITY. 3. Hazardous Waste LESSEE shall not bring any hazardous materials onto the PREMISES except for those contained in its back-up power batteries (lead-acid batteries) and common material used in telecommunications operations, e.g., cleaning solvents.. LESSEE will treat all hazardous materials brought onto the PREMISES by it in accordance with all Federal, State and Local laws and regulations. In addition to the indemnity provided in section IVB4(a), LESSEE shall indemnify, defend,protect and hold CITY harmless from and against any and all claims, loss,proceedings, damages, causes of action, 7 liability, costs or expenses (including attorney's fees) arising as a result of any Hazardous Materials which exist within the property, common areas,building or PREMISES as a result of the activities or omission of LESSEE. 4. Indemnity • a. LESSEE shall indemnify, defend, and hold harmless CITY, its employees, successors and assigns from and against any and all loss, cost, claim, liability, action, damage, injury to or death of any person(hereinafter referred to as "Claims"), including reasonable attorney's fees, occurring on the PREMISES and arising out of or connected with the negligence or willful misconduct of LESSEE, its agents or contractors, except for Claims arising out of the negligence or willful misconduct of CITY, its agents or contractors,breach of any duty or obligation by CITY under this Lease, or any condition relating to the PREMISES which LESSEE has no obligation to repair or maintain. b. CITY shall indemnify, defend, and hold harmless LESSEE, its employees, successors and assigns from and against any and all loss, cost, claim, liability, action, damage, injury to or death of any person(hereinafter referred to as"Claims"), including reasonable attorney's fees, arising out of or connected with negligence or willful misconduct of CITY, its agents or contractors, except for Claims arising out of the negligence or willful misconduct of LESSEE,its agents or contractors, violation of any law by LESSEE, its agents or contractors,breach of any duty or obligation by LESSEE under this Lease, or any condition relating to the PREMISES which CITY has no obligation to repair or maintain. c. The foregoing indemnity in a. and b. will survive the termination of this Lease. 5. Insurance Coverage LESSEE;at LESSEE's sole cost and expense, shall procure and maintain for the duration of this LEASE, including any extensions of this LEASE and during the period that LESSEE is performing any work upon the expiration or earlier termination of this LEASE to remove the equipment from CITY property, insurance,naming CITY as an additional insured, against claims for injuries to persons or damage to property which may arise from, or in connection with,the performance of the work or provision of SERVICES hereunder by LESSEE,its agents, representatives, employees or subcontractors. a. Minimum Scone of Insurance The coverage shall include Commercial General Liability together with Broad Form Comprehensive General Liability including explosion, collapse and underground; Automobile liability including Code 1 (any auto), Code 2 (owned autos), Code 8 (hired autos) and Code 9 (nonowned autos); Workers' Compensation as required by the California Labor Code and Employers Liability insurance. b. Minimum Limits of Insurance LESSEE shall maintain limits no less than two million dollars ($21000,000) combined single limit per occurrence for bodily injury,personal injury and property damage in Commercial General Liability; three.million dollars ($3,000,000) in 8 • I 5-q° aggregate for public liability and five hundred thousand dollars ($500,000) combined single limit per accident for bodily injury and property damage in Automobile Liability; and Workers' Compensation and Employers Liability limits of one million dollars ($1,000,000)per occurrence. c. Deductibles and Self-insured Retention Any deductibles or self-insured retention must be declared to, and approved by the CITY. d. Policy Provisions The following provisions must be included in the policies: (1.) The CITY of Cupertino, its officers, employees, agents and contractors are to be covered as additional insured regarding liability arising out of activities performed by or on behalf of, LESSEE, products and completed operations of LESSEE, premises owned,Leased or used by LESSEE, and vehicles owned,Leased,hired or borrowed by LESSEE. The coverage shall contain no special limitations on the scope of protection afforded to the CITY, its officers, employees, agents and contractors. (2.) LESSEE's insurance coverage shall be primary insurance as respects the CITY, its officers, employees, agents and contractors. Any insurance or self-insurance maintained by the CITY, its officers, employees:, agents or contractors shall be excess of LESSEE'S insurance and shall not contribute with it. (3.) Any failure to comply with reporting provisions of the policies by LESSEE shall not affect coverage provided the CITY, its officers, employees, agents or contractors. (4.) All policies required by this LEASE shall be endorsed to state that coverage shall not be suspended, voided, canceled or reduced in limits except after thirty(30) days prior written notice has been given to the CITY. e. • Acceptability of Insurers The,insurance carrier shall provide proof of their ratings. All ratings shall be a minimum of`Best A-7." f. Verification of Coverage The CITY shall provide all required forms. LESSEE shall furnish CITY with certificates of insurance and with all endorsements affecting coverage required by this LEASE. The certificates and endorsements for each policy are to be signed by a person authorized by that insurer to bind coverage on its behalf. g. Subcontractors LESSEE shall either include all subcontractors as • insured under its policies or shall require all subcontractors to meet CITY's requirements listed above. 6. Maintenance and Repairs LESSEE agrees to assume full responsibility for the operation, maintenance, and repairs of the PREMISES throughout the term hereof without expenses to 9 1 - t1 • the CITY unless otherwise specified herein, and to perform all repairs and replacements necessary to maintain and preserve the PREMISES in good order, in a safe,healthy and sanitary condition, in manner reasonably satisfactory to CITY,in compliance with all applicable regulations and laws. LESSEE agrees that CITY shall not be required to perform any maintenance,repairs, or services, or to assume any expense not specifically assumed herein, in connection with the PREMISES. Upon expiration of this Lease,LESSEE will surrender the PREMISES to CITY in good order and condition. 7. Nondiscrimination LESSEE agrees not to discriminate in any manner against any person or persons on account of race, marital status, sex, religious creed, color, ancestry, or national origin in LESSEE's use of the premises, including,but not limited to, the providing of goods, services, facilities,privileges, advantages and accommodations, and the obtaining and holding of employment. 8. Utility Costs LESSEE agrees to order, obtain and pay all utilities, including but not limited to water, gas, electricity,telephone, communications services, sanitary and drainage services, and service installation charges on any improvements made by LESSEE on the PREMISES. LESSEE shall also secure and utilize waste disposal services for the PREMISES in accordance with applicable local and state ordinances. All utilities on the Site shall be underground. In the event utilities to the PREMISES are furnished by the CITY and are measured by privately installed sub-meters,LESSEE shall pay as additional rent the cost of utility service provided to the PREMISES and attributable to LESSEE's use("Utility Charge"). LESSEE shall pay the estimated cost of the Utility Charge monthly in advance together with the monthly Rent. The parties estimate the Utility Charge at the Commencement Date to be Two Hundred Fifty Dollars ($250.00) per month. During the lease term, at CITY's request(which request shall not be more frequent than once every twelve months),LESSEE shall calculate the actual Utility Charge for the immediately preceding twelve (12)months based on the readings from the privately installed sub-meters at CITY's Property. If the actual Utility Charge varies from the estimated Utility Charges paid, the parties shall adjust the Utility Charge to reflect LESSEE's actual usage. 9. Waste, Damage or Destruction LESSEE agrees to give notice to damage. CITY of a y such fire fire or damage that may occur on the leased PREMISES within ten(10) days of public private LESSEE agrees not to commit or suffer to be committed any waste or injury or any p c or nuisance,to keep the PREMISES clean and clear of refuse and obstructions, and to dispose of all garbage, trash and rubbish in a manner reasonably satisfactory to the CITY. • If the PREMISES is destroyed or damaged so as in LESSEE's judgment,to hinder its effective use of CITY's property, LESSEE may elect to terminate this Lease as of the date of the damage or destruction by so notifying CITY in writing no more than 30 days following the date of damage or destruction. In such event, all rights and obligations of the parties which do not survive the termination of this Lease shall cease as of the date of the damage or destruction. 10. Contingency It is understood by LESSEE and CITY that this Lease is fully contingent upon LESSEE obtaining final development approvals for construction of improvements on the leased land from the CITY. In the event that such governmental approvals are not obtained on or 10 t P tL before December 31, 2000, after due diligence by LESSEE, LESSEE shall have the right to terminate this agreement within 30 days by notifying CITY in writing. If terminated,LESSEE shall have no further obligation to pay rent or comply.with any other provision of this Lease. 11. Interference with Communications LESSEE's facilities shall not disturb the communications configurations, equipment and frequency which exist on CITY's property on the Commencement Date(hereinafter referred to as"Pre-existing Communications"), and LESSEE'S facilities shall comply with all non-interference rales of the Federal Communications Commission (FCC). CITY shall not permit the use of any portion of the Site in a way which interferes with the communications operations of LESSEE described in Paragraph I. A., above. Such interference with LESSEE'S communications operations shall be deemed a material breach by CITY, and CITY shall have the responsibility to terminate said interference within a reasonable time of LESSEE'S written notice to CITY. In the event any such interference does not cease within ten days time, the parties acknowledge that continuing interference will cause irreparable injury to LESSEE, and therefore, • LESSEE shall have the right to terminate the Lease immediately upon notice to CITY. Notwithstanding the foregoing,Pre-existing Communications operating in the same manner as on the Commencement Date shall not be deemed interference. 12. Legal Proceedings LESSEE agrees that should it become necessary for CITY to commence legal proceedings to collect rent,recover possession, or enforce any other provision of this Lease, the prevailing party will be entitled to legal costs and expenses in connection therewith, including reasonable attorney's fees as determined by the court. The parties agree that the laws of the State of California shall be used in interpreting this Lease and will determine all rights and obligations hereunder, and it is agreed that this Lease is executed in Cupertino, CA: 13. Electromagnetic Fields LESSEE shall comply with all present and future laws, orders and regulations relating to Electromagnetic Fields (EMFs), and the American National Standards Institute(ANSI) standards. Without limiting the provision of LESSEE'S indemnity CITY contained herein,LESSEE, on behalf of itself and its successors and assigns, shall indemnify from and against all claims of personal injuries due to EMFs to the extent such personal injuries are caused by LESSEE'S facilities on the Premises. C. RESTRICTIVE CONDITIONS 1. Administration and Notices CITY's agent for control and administration of this Lease shall be the Director of Public Works of the CITY of Cupertino, and any communication relative to the terms'or conditions or any changes thereto or any notice or notices provided for by this Lease or by law to be given or served upon CITY may be given or served by certified letter deposited in the United States mails, postage prepaid, and addressed as indicated below,. Any notice.or notices provided for by this Lease or by law to be given or served upon LESSEE may be given or served by p postage prepaid, a certified letter addressed to said LESSEE at depositing in the United States mails,p g -p p the PREMISES or at such other address designated in writing by LESSEE, or may be personally served upon them or any person hereafter authorized by them to receive such notice. Any notice or notices given or served as provided herein shall be effectual and binding for all purposes upon the 11 • • 1 13 principals of the parties so served upon personal service or forty-eight(48)hours after mailing in the manner required herein: CITY: Director of Public Works City of Cupertino 10300 Torre Avenue Cupertino, CA 95014 • LESSEE: Nextel of California,Inc. 1255 Treat Blvd., Suite 800 Walnut Creek,CA 94596 Attention: Property Management with a copy to: Nextel Communications 2001 Edmund Halley Drive Reston,VA 20191-3436 Sixth Floor,Mail Stop 6E630 • Site Leasing Services; Contracts Manager CITY or LESSEE may, from time to time, designate any other address for this purpose by written • notice to the other party. • 2. Entry and Inspection CITY,reserves the right to enter the PREMISES for the purpose of viewing and ascertaining the condition of the same, or to protect its interests in the PREMISES, or to inspect the operations conducted thereon. In the event that such entry or inspection by CITY discloses that the PREMISES are not in a safe,healthy and sanitary condition, CITY shall have the right, after thirty(30) days written notice to LESSEE,-to have any necessary maintenance work done for and at the expense of LESSEE and LESSEE hereby agrees to pay promptly and any all reasonable costs incurred by CITY in having such necessary maintenance work done in order to keep the PREMISES in a safe,healthy and sanitary condition. Failure to reimburse CITY for the reasonable costs incurred by CITY within thirty(30) days of completion of said maintenance work shall constitute a default of this Lease. 3. Holding Over. This Lease shall terminate without further notice at expiration of the term. Any holding over by LESSEE after expiration shall be under the same terms of this Lease, as may be amended, and shall not constitute a renewal or extension or give LESSEE any rights in or to the PREMISES except as otherwise expressly provided in this Lease. 4. Merger The voluntary or other surrender of this Lease by LESSEE, or a mutual cancellation thereof, shall not work a merger and shall, at the option of CITY,terminate all or any existing subleases or subtenancies or may, at the option of CITY, operate as an assignment to it of any or all such subleases or subtenancies. 12 IS� 1 5. Reservation of CITY Rights CITY hereby reserves all rights ,title and interest in any and all gas, oil,minerals and water beneath said Leased premises. CITY shall have the reasonable right to enter the PREMISES for the purpose of making repairs to or developing municipal services. CITY hereby reserves the right to grant and use such easements or establish and use such rights-of-way bver, under, along and across the PREMISES for utilities, thoroughfares,or access as it may deem advisable for the public good. Provided, however, CITY shall not unreasonably interfere with LESSEE's use of the PREMISES and will reimburse LESSEE.for physical damages, if any,to LESSEE's facilities located on the PREMISES resulting from CITY's exercising the rights retained in this paragraph. Such reimbursement may include a reduction in the annual rent proportionate to the amount of any physical damage as reasonably determined by CITY. CITY shall pay the costs of maintenance and repair of all CITY installations made pursuant to the rights reserved herein. All utilities shall be underground. 6. Time is of the Essence Time is of the essence of each and all of the terms and provisions of this Lease and this Lease shall inure to the benefit of and be binding upon the parties hereto and any successor of LESSEE as fully and to the same extent as though specifically mentioned in each instance, and all covenants, stipulations and agreements in this Lease shall extend to and bind any assigns or sublessees of LESSEE. 7. Waiver The waiver by CITY of any term, covenant, or condition herein contained shall not be deemed to be a waiver of such term, covenant or condition, or any subsequent breach of the same or any other terms, covenant or condition herein contained. The subsequent acceptance of rent hereunder by CITY shall not be deemed to be a waiver of any preceding breach by LESSEE of any term, covenant or condition of this Lease,regardless of CITY's knowledge of such or exact preceding breach at the time of acceptance of such rent. Failure on the part of CI require full and complete compliance with any of the covenants, conditions or CITY sfrome shall not be construed as in any manner changing the terms h ereof and shall not prevent enforcing any provision hereof. 8. Recordation LESSEE may, at its cost, record this Lease or a memorandum of this Lease. 9. Title. a. CITY warrants that it has full right,power, and authority to execute this Lease; CITY further warrants that LESSEE shalt:have quiet enjoyment of the PREMISES during the Term of this Lease or any Renewal Term. _ b. LESSEE has the right to obtain a title report or commitment fora Leasehold title policy from a title insurance company of its choice. If, in the opinion of LESSEE,such title report shows any defects of title or any liens hall have the right to terminate this Leaseymmediately LESSEE's use of the PREMISES, LESSEE upon written notice to CITY. 13 I S—( 10. Captions.. The captions of the various articles and paragraphs of this Lease are for convenience and ease of reference only and do not define, limit, augment, or describe the scope, content, or intent of this Lease or of any part of this Lease. 11. Entire Agreement This Lease contains the entire agreement between the parties. No promise, representation, warranty, or covenant not included in this Lease has been or is relied on by either party. Each party has relied on its own examination of this Lease,the counsel of its own advisors, and the warranties,representations, and covenants in the Lease itself. The failure or refusal of either party to inspect the PREMISES, to read the Lease or other documents, or to obtain legal or other advice relevant to this transaction constitutes a waiver of any objection, contention, or claim that might have been based-on such reading, inspection, or advice. 12. Severability The invalidity or illegality of any provision of this Lease shall not affect the remainder of the Lease. 13. Successors Subject to the provisions of this Lease on assignment and subletting, each and all of the covenants and conditions of this Lease shall be binding on and shall inure to the benefit of the heirs, successors, executors, administrators, assigns, sublessees,tenants, subtenants, and personal representatives of the respective parties. IN WITNESS WHEREOF, this Lease agreement is executed by CITY, acting by and through the Mayor, and by LESSEE, acting by and through its lawfully authorized officers. • APPROVED AS TO FO' . City Attorney Charles Kilian CITY OF CUPERTINO BY TIT John Statton, Mayor NEXTEL OF CALIFORNIA, INC. • BY . :2L_. !L,- x^® PiA TITLE Mark B. Nelson Vice President ;N 2r311(3 VICE PRESCIENT OF . ui l=Cj4vti ORIGINAL • • EXHIBIT "A" CA-2151B/)Htwy 280/87 10555 Mary Avenue Cupertino, CA 95014 APN: 326-06-052 • • of 77.0' feat to the tedra rdasd�ocs;bosa21.959 iat fk2 og Oi2 St4t:ao a California by award' pose 4791 - • _.; a3.oag laot amid lissa North 89' 15' 33" Vast 91.69 feet to the Easterly line of the parcel of 1444 Oooveyed to the State of.c alifarnia by Dead roeardad Doccab _ 1, 1960 in Book 4998 of Official lent rds, paeget 436; r....,. aloes last said lines South 0' 52' 03" West 38$.D foot to t7am point . of 0.474 of WI arias testae Or lame. . r A* to - 1 satOdc, thbt otbatv+.7aut.0 ttt ae C0? the. 1+ierjotaa►a or :t fr ff and t • •:nttor horoby releases es anal rolluquishas to the graamma any Ad it end aba�tsaatr , ri'hs of'across, appeartenmt to rst;►tat'S rvoai.saitag'p po y• to said rota y• • PARC141. • • CONMSNC, , at the Southeasterly corer of the 2.00 acre patrcel of Vand.couveyed to X. J • ad, at us, by Deed recorded Te bruary 18, 1948 in look 1369 of 011ie - 1 aaeo d , page 37; tt•-_ ales$ tb& .out c' .y 1lsia of said parcel Narth t39° 15' 33" West 3.3.00 Laecg- V4rth•0` 52' 31" fast 189.09 teat to.the lino cameos to the ? d4, • now Olt i..rosrlig of acid K. J&,ovich, et wc. 4e=e4 Of Jon ft: t. at vs; theac :a1otag list said lino South 89' 23' 33" rant 30.00 feet to t4e lima =moo to thi _- s, you or fossarly, of said 21. Jakovich;•et-mi--entd of Ihorekee-L.---, • Vat: , et al; • I t,., along laat: said lima South 0° 32' 31" West 198.00 feet to tha poi at • •• , ' *'1" .P 0.131 of an acre, more or /mar. Ita >.- _ smA diatintaiused in tom above descriptiots are on she California CoettioOte Syateme Zone 3. 1410.tLply the ate diatamsaa by 1.0000485 to obtain ;roiled bavel distances. • • NOM• AIM 4 • EXHIBIT "A" • CA-2151B/Hwy 280/87 10555 Mary Avenue Cupertino, CA 95014 APN: 326-06-052 PA u .P 0. 1.a - —.. ._.. . . . . _ .._ .. _. ACC pD at a poLat on tad Easterly Una o(,tbat can=oe; 40 a ors treat of leod ..crihod In the Deed from Lloyd L. 1'diAids, at ux, to Joe'A. Sorel, et us dated February e, 1945, recorded February 10. 1945 in book 1.243 0. R.; pass ; Santa Clara County words, distant thereon South 0` DI' San 2320.4. foot from sus iron pipe in the centerline of Uneaten-4 goad; •1 tea South 0° 08' Flat along. than 'westerly fins of said 40 acts tract 32.09,feet to an iron pipe at the Southeasterly.corner a thereof; • rums °S thence South S9' 44' West along the Southerly.line of said 40 acre tract 59.52 tee." .0 an tromp/pa at the Souttaitstarkir corner thereof; . thence North 0` 08' 30" West along the Westerly line -of maid 40 acre .trout . 3240 € tt • thence North 39" 44' at 659.54 feet to the point of beginning. ' eag ag. SO approxisaataiy 2.00 acres and being a portion of the Southwest 114 o Section. 11 Township 7 South, Range 2 Vest, 8!. • S, & M. . ? _�}._110. 2 =In at a point on the tfzraterly liaa of .t.tct curtain 40 auto trout of. lid • etcribed 'in-the Deed from Lloyd L. Edwards, at eau, to Joe A. Satci, at cut. dated. February 3, lo 1445. recorded February 10, 1945, in look 1243 O. 2,, page 2• , $iota•Clara County Records, distant thetaon South 0' 0s t 2464.4- fast from as iron pipe in the centerline of Ek eete ad Road; thence South 0` OS' Fast along: the Easterly lima of said 40 acre tta3`t: 56.00•' set to the Northeasterly corner or .hat certain 2 sera tract.of 1amd daze ,- in the Dead from Jae A. Sorel, at euac, to M. Js1 avich. et cos, dated . • g*breaa y 18, 1$49 iaa Zook 1569 0. a., Fega 37, Santa Clara County Records; ant thanaa South 0° 44' East along the Northerly line of iraid.2 acxa treat 59.54 feat to she Sorthuesterlg corner thereof pa the Westerly ai of. . .' said aura tract; - Et: A thence %nth S'w 44' Seat along gatd laat: ua�d lima SS s rem 'thence North S9' 44' last and parclle i. with the 46ortherly Rasa of said 2 acre. tract 649.55 feet to',the point of beginning, •• , L spproxt tely O.SS scrip and being a pPitter. of the Southwest 1/4 . of WI ,.. .1, Torarship T South, lenge 2. West. K. D. A. i K. TIM PARCELS 1 and! 2 all that portion thatea aoscribt4 as Fels 1 • and 2 t e Deed from U. Jatoeriah, at us,-to the Stator of Cslifota ia. recorded Augos 14. 1964 in sook 66.19. 0. h.. pegs 556, Santa Clara City Asaards, and more particular/ described as follows: • at the Southeasterly corner of the 2.03 ea e pare of of land eve 17,;777; to X. ':ate%itb, a.t u3.8 .by Deed rocorded rcbr ary 13, 1949 in look 1.569 of . Off is retards, page 31; alb the th r1y. line of aid parcel South 394 15' 33".Rent 133.92 1"-",27 feet; iffier a tag tars Vort4 g6° 12' 43" Wet, ales g a ea o • right ? .h a radius of 1447.00 foot, through an eagle of 4° 35' 21', es arc lmstof 113.90 feat, ® o 33" a e , t .5<. ft e t t Mars North 12 16 33 t, r z . a :Was of soom fcAt thromo a .e• y' 21a was ea.agt 1e alb RESOLUTION NO. 05-203 DRAFT A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO AUTHORIZING EXECUTION OF THE FIRST EXTENSION OF THE ANTENNA SITE LEASE AGREEMENT BETWEEN THE CITY OF , CUPERTINO AND NEXT EL OF CALIFORNIA, INC. WHEREAS, on June 19, 2000, the City Council of the City of Cupertino approved Resolution 00-184, authorizing execution of m Antenna Site Lease Agreement (hereinafter Agreement) between the City of Cupertino and Nextel of California, Inc., a Delaware Corporation doing business as Nextel Communications (hereinafter Nextel) for the lease of facilities located at the Cupertino Service Center, 10555 South Mary Avenue; and WHEREAS, the original five-year term of the Agreement is set to expire on December 31, 2005; and WHEREAS, the Agreement provides for two.additional five-year extensions of the agreement at the prerogative of Nextel; and WHEREAS, Nextel wishes to exercise the first five-year extension of the Agreement for the period beginning December 31, 2005, and ending on December 31, 2010, and there has been presented to the City Council a recommendation to authorize the City Manager to execute the first five-year extension of the Agreement, as well as the second extension allowed by the Agreement if Nextel wishes to exercise its option for a second extension. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Cupertino hereby authorizes the City Manager to execute the first extension to the Agreement, as well as the second extension allowed by the Agreement if Nextel wishes to exercise its option for a second extension, on behalf of the City of Cupertino PASSED AND ADOPTED at a regular meeting of the City Council of the City of Cupertino this 6th day of December 2005,by the following vote: Vote Members of the City Council AYES: NOES: ABSENT: ABSTAIN: ATTEST: APPROVED: City Clerk Mayor, City of Cupertino 1 5=19 #/T 4.1 r� i b,I� ar ] ;∎• 4111 S• �-,,,cam ��� '' ' 10300 Tone Avenue Cupertino,CA 95014-3202 City of (408)777-3354 Cupertino FAX(408)777-3333 Public Works Department SUMMARY AGENDA ITEM 7 AGENDA DATE January 21, 1997 - SUBJECT AND ISSUE Agreement with Pacific Bell Mobile Services Submitted for your approval is a lease agreement between the city and Pacific Bell Mobile Services to lease an antenna site at the city's service center. BACKGROUND It is desirable to lease unused portions of the city's service center in order to generate revenue. The site is located immediately adjacent to Route 85 and between the covered storage facility and the retaining/soundwall. The size is 4x14 or 56 sq. ft. TERMS OF LEASE • The term is for five years and is renewable for two renewal terms, then the lease must be renegotiated. • The improvements will consist of a pad and monopole antenna designed to accommodate additional antennas from other service providers. This allows use of the same antenna by other companies. • Basic rent is $1200 per month, $14,400 per year, with a 5% annual increase. • All other normal indemnities, insurance, and sureties are included. STAFF RECOMMENDATION Adopt Resolution No. 9773 approving the lease agreement with Pacific Bell Mobile Services for the purpose of antenna site at the city's service center. Submi. d by: fik Appro .d for 'ubmission: Be J.Viskovi v Don•!d D. : own D' ector of Publi Works City Manager Printed on R9cycled Paper 7-/ RESOLUTION NO. 9773 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO AUTHORIZING EXECUTION OF LEASE AGREEMENT BETWEEN THE CITY OF CUPERTINO AND PACIFIC BELL MOBILE SERVICES FOR THE LEASE OF ANTENNA SITE AT 10555 MARY AVENUE (SERVICE CENTER) WHEREAS, there has been presented to the City Council a proposed lease agreement between Pacific Bell Mobile Services, Lessee, and the City of Cupertino, Lessor, for Lessee to lease an unused area at the city's service center for antenna purposes; and; and WHEREAS, the terms, conditions, and provisions of the aforementioned lease agreement have been reviewed and approved by the City Attorney and the Director of Public Works. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Cupertino hereby approves the aforementioned lease agreement and authorizes the Mayor and the City Clerk to execute said agreement on behalf of the City of Cupertino. PASSED AND ADOPTED at regular meeting of the City Council of the City of Cupertino this 21st day of January, 1997, by the following vote: Vote Members a the'City Council AYES: NOES: ABSENT: ABSTAIN: ATTEST: APPROVED: City Clerk Mayor, City of Cupertino _ /9/ xpires eca2_3r" Antenna Site Lease Agreement 0? r Between the CITY of Cupertino and Pacific Bell Mobile Services This Antenna Site Lease Agreement("Lease") is executed by and between the CITY of Cupertino, a municipal corporation,hereinafter called"CITY"and Pacific Bell Mobile Services, a California corporation, hereinafter called"LESSEE." I. DEMISED PREMISES CITY hereby leases and LESSEE leases from CITY a portion of that certain real property situated in the CITY of Cupertino, State of California, commonly known as Cupertino Service Center("Site") described and delineated as specifically shown on Exhibit A attached hereto, consisting of approximately fifty square feet of land. Said real property is hereinafter called the "PREMISES." A. PERMITTED USE The PREMISES may be used by LESSEE for any lawful activity in connection with the provision of mobile/wireless communication services, including without limitation,the transmission and the reception of radio communication signals on various frequencies and the construction, maintenance and operation of related communication facilities. LESSEE shall not use the PREMISES for any activity or in any manner which would tend to lower the character of the PREMISES, or in such a manner as to create any nuisance which disturbs, interferes with, or annoys any other neighboring person or entity. B. CONSTRUCTED IMPROVEMENTS It is contemplated that LESSEE shall construct an approved concrete pad and a communications monopole antenna. Before any work of construction, alteration, or repair is commenced on the PREMISES, LESSEE shall comply with all of the following conditions and provisions unless CITY's written waiver is first obtained: 1. All new structures shall first comply with CITY's applicable development standards and review process, including review and approval of required conditional use permits by the Planning Commission or CITY Council as appropriate. 2. LESSEE shall notify CITY in writing of LESSEE's intention to commence any work of improvements at least five(5)working days prior to commencement of such work. The notice shall specify the approximate location and nature of the intended improvements. CITY shall have the right to post and maintain on - the PREMISES any notices of nonresponsibility provided for under applicable law, and to inspect the PREMISES in relation to compliance with this Lease, other permits or the construction at all reasonable times. 1 • 3. LESSEE shall secure and deliver to CITY, care of the Public Works Department, adequate evidence of compliance with all applicable building codes, ordinances, regulations, and requirements for all permits and approvals, including but not restricted to grading permits, building permits, zoning and planning requirements, and approvals from various governmental agencies and bodies regulating water, sewer, and any other utility or improvement on the Site. 4. LESSEE shall provide required bonds or other security securing completion of any new structures to be constructed upon the Site,pursuant to section I(B)(5) of this Lease, and shall furnish CITY, care of the Public Works Department,with evidence of said security prior to undertaking any such construction on the PREMISES. 5. Prior to the execution of this Lease, LESSEE shall have provided to the CITY a bond or Certificate of Deposit as a security deposit in the amount of ten thousand dollars($10,000.00) to cover the costs for the removal of LESSEE's equipment in and upon the PREMISES and any repairs that may be required to the PREMISES which are the responsibility of the LESSEE to repair under this lease. The CITY shall have the right to draw against the deposit in the event of a default by LESSEE or to cover the costs for the removal of the encroachment and any repairs that may be required to the PREMISES in the event that LESSEE fails to meet and fully perform any of its obligations hereunder. Within ten days of receipt of written notice from the CITY,LESSEE shall renew or replace such sums Qf money as shall bring the security deposit current. No release of the bond or certificate of deposit held as a security deposit shall be made except upon approval of the CITY, in accordance with California law. LESSEE agrees that the bond or certificate of deposit shall be held in full force and effect for the Term of this Agreement. The Security Deposit shall be released by the CITY upon completion of the removal of the encroachment and any repairs necessary to restore the PREMISES to their original condition as of the Commencement Date of the lease excepting reasonable wear and tear beyond the control or without the fault or neglect of the Lessee. The deposit shall be released thirty (30) days after the CITY Engineer's inspection and acceptance of the work. 6. Once any approved work of improvement is begun, LESSEE shall diligently prosecute completion of said work or construction. All work shall be performed in a good and workmanlike manner, and shall substantially comply with plans - and specifications approved by CITY and as required by this Lease. C. SOIL CONDITIONS CITY makes no covenants or warranties respecting the condition of the soil or subsoil or any other condition of the PREMISES 2 that might affect LESSEE's ability to construct the monopole antenna upon the PREMISES. D. UTILITY INSTALLATION ACCESS CITY grants to LESSEE the right to install utilities, for the purpose of serving the PREMISES only, which may be, in CITY's sole opinion, reasonably required. II. TERM OF LEASE A. COMMENCEMENT AND TERMINATION The term of this Lease (Term) shall be five (5) years commencing with the issuance of a local building permit allowing LESSEE to construct its mobile/wireless communications facilities on the PREMISES, or December 31, 1996,whichever is earlier(hereinafter referred to as "Commencement Date"). At the option of LESSEE,the term of this Lease may be renewed for successive five-year periods of time(hereinafter referred to as"Renewal Term"), but in no event, shall the Lease be extended for more than two Renewal Terms without the negotiation and execution of a new lease. j r} nOi Not withstanding the above, the CITY may terminate the lease prior to the expiration of its term or any Renewal Term, under the following circumstances: 1. If LESSEE is in material breach; 2. If the CITY is required by federal, state or local law to regain possession of the PREMISES; 3. If the CITY no longer utilizes the Site as a city facility. Upon a breach or default of any of the terms or obligations of this LEASE by LESSEE,the CITY shall serve written notice upon LESSEE reasonably describing the breach or default. If LESSEE fails to cure a monetary breach or default within thirty (30) days or a non-monetary breach within sixty (60) days this LEASE shall be subject to termination at the option of the CITY. The CITY shall be entitled to exercise all rights and remedies hereby reserved under this LEASE or made available under applicable laws. Termination of this LEASE by the CITY shall constitute the withdrawal of any consent or authorization of CITY for LESSEE to perform any construction or other work under this LEASE excepting only that work necessary to remove all equipment and to repair the PREMISES to their original condition existing at the Commencement Date of the LEASE, reasonable wear and tear beyond the control or without the fault or neglect of the LESSEE excepted. LESSEE may terminate this LEASE at any time during the term of this LEASE or any Renewal Term thereof upon thirty (30) days notice to the CITY with no further liability except as expressly provided herein. Upon such early termination by LESSEE, the CITY shall make a pro-rata refund to LESSEE of the rental fee paid to the CITY by 3 LESSEE prorated to the date of CITY's acceptance of the removal of the LESSEE's • FACILITIES. In the event of termination by either party, LESSEE shall immediately cease all work being performed under this LEASE, excepting only that work necessary for LESSEE to remove all equipment and repair the PREMISES in accordance with Section II(B). • B. SURRENDER OF PREMISES LESSEE shall remove all LESSEE Facilities at its sole expense upon cancellation, expiration or earlier termination of this Lease. LESSEE shall repair any damage to the PREMISES caused by such removal and shall return the PREMISES to the condition which existed on the Commencement Date, reasonable wear and tear and damages beyond the control or without the fault or neglect of LESSEE excepted. All such fixtures and any equipment not removed shall conclusively be deemed to have been abandoned by LESSEE. Upon CITY's compliance with any statutorily required notice to LESSEE, abandoned equipment may be appropriated, sold, stored, destroyed, converted, or otherwise disposed of by CITY without further notice to LESSEE or to any other person and without obligation to account for them. LESSEE will pay CITY for all expenses incurred in connection with CITY's disposition of such property, including without limitation the cost of repairing any damage to the PREMISES caused by the removal of such property. LESSEE's obligation to observe and perform the covenants of this paragraph shall survive the end of this Lease. C. ACCESS TO IMPROVEMENTS 1. LESSEE shall have the right(but not the obligation) at any time following the full execution of this Lease and prior to the Commencement Date,to enter the PREMISES for the purpose of making necessary inspections and engineering surveys (and soil tests where applicable) and other reasonably necessary tests (hereinafter singularly and collectively referred to as "Tests")to determine the suitability of the PREMISES for LESSEE's Facilities (as defined herein) and for the purpose of preparing for the construction of LESSEE's Facilities. During any Tests or pre-construction work, LESSEE will have insurance as set forth in Section IV, B, 4, Insurance. LESSEE will notify CITY of any proposed Tests or pre-construction work and will coordinate the scheduling of same with CITY. If LESSEE determines that the PREMISES are unsuitable for LESSEE's contemplated use,then LESSEE will notify CITY and this Lease will terminate. 2. LESSEE has the right to construct, maintain and operate on the - PREMISES radio communication facilities, including but not limited to, radio frequency transmitting and receiving equipment, batteries, utility lines, transmission lines, radio frequency transmitting and receiving antennas and supporting structures and improvements (hereinafter referred to as"Facilities"). In connection therewith, LESSEE 4 has the right to do all work reasonably necessary to prepare, add, maintain and alter the PREMISES for LESSEE's communications operations and to install utility lines and transmission lines connecting antennas to transmitters and receivers. All of LESSEE's construction and installation work shall be per.Formed at LESSEE's sole cost and expense and in good workmanlike manner. Title to LESSEE's Facilities and any equipment placed on the PREMISES by LESSEE shall be held by LESSEE. All of LESSEE's Facilities shall remain the property of LESSEE and are not fixtures. LESSEE has the right to remove all LESSEE's Facilities at its sole expense on or before the expiration or termination of this Lease. 3. At no charge to LESSEE, CITY shall provide access to the PREMISES to LESSEE, LESSEE's employees, agents, contractors and subcontractors five (5) days a week during working hours and on other days and times by special arrangement with CITY. Not withstanding the foregoing, in the event of an emergency, Lessee shall have access to the PREMISES at all hours, seven(7) days a week. Twenty- four hour emergency access is available through County Communications. CITY represents and warrants that it has full rights of ingress and egress from the PREMISES, and hereby grants such rights to LESSEE to the extent required to construct, maintain, install and operate LESSEE's Facilities on the PREMISES. LESSEE's exercises of such rights shall not cause undue inconvenience to CITY, nor shall it compromise the security of CITY's adjoining Site. i� . 4. CITY shall maintain all access roadways from the nearest public roadway to the PREMISES in a manner sufficient to allow access. CITY shall be responsible for maintaining and repairing such roadways, at its sole expense, except for any damage caused by LESSEE or LESSEE's agents or assigns. If LESSEE or LESSEE's agents or assigns cause any such damage, LESSEE shall promptly repair same. 5. LESSEE shall have the right to install utilities, at LESSEE's expense, and to improve the present utilities on or near the PREMISES (including, but not limited to the installation of emergency back-up power). Subject to CITY's approval of the location, which approval shall not be unreasonably withheld, LESSEE shall have - the right to place utilities on(or to bring utilities across) CITY's Property in order to service the PREMISES and LESSEE's Facilities. 6. LESSEE shall fully and promptly pay for all utilities furnished to the PREMISES for the use, operation and maintenance of LESSEE's Facilities. III. RENT _ A. BASIC RENT 5 1. ' Upon the Commencement Date, LESSEE shall pay to CITY, as rent, the sum of one thousand two hundred dollars ($1,200.00)per month. If the Commencement Date is other than the first day of a calendar month, LESSEE may pay on the first day of the Term the prorated Rent for the remainder of the calendar month in which the Term commences, and thereafter, LESSEE shall pay a full month's rent on the • first day of each calendar month, except that payment shall be prorated for the final fractional month of this Lease, or if this Lease is terminated before the expiration of any - month for which Rent should have been paid. 2. These amounts will be due and payable on or before the first day of each month during the term of this Lease. The rent will be paid in advance to the Department of Finance, City of Cupertino, 10300 Torre Avenue, Cupertino, CA 95014, without prior demand and without any abatement, deduction or setoff. B. LATE PAYMENT CHARGE The rent shall be delinquent if not received by the close of the business day on the 10th of each calendar month. Such unpaid amounts of rent shall be subject to a late payment charge equal to ten percent tt q: (10%) of such unpaid amounts. This late payment charge is intended to compensate CITY for its additional administrative costs resulting from LESSEE's failure, and has been agreed upon by CITY and LESSEE, after negotiation, as a reasonable estimate of x ': the additional administrative costs which will be incurred by CITY as a result of LESSEE's failure; the actual cost being impossible to ascertain at the time of this Lease. This late payment will constitute liquidated damages due the,CITY and will be paid to .r CITY together with such unpaid amounts. Acceptance of the payment of this late charge will not constitute a waiver by CITY of any default by LESSEE under this Lease. C. ADJUSTMENT OF RENT The rent in subparagraph A above will be adjusted according to this paragraph notwithstanding any provision in that subparagraph to the contrary: 1. Rent shall be increased on each anniversary of the Commencement Date by an amount equal to Five Percent(5%) of the rent for the previous year. IV. COVENANTS AND CONDITIONS A. CITY COVENANTS 1. Quiet Possession LESSEE,paying the said rent and performing the covenants and Leases herein, shall and may at all times during the said term peaceably and quietly have, hold and enjoy the said PREMISES for the term thereof. 2. Assignment and Subleasing The parties agree that the expertise and experience of LESSEE are material considerations inducing the CITY to enter into this LEASE. LESSEE shall not assign, sell, Lease, merge, consolidate or 6 transfer any interest in this LEASE nor the performance of any of LESSEE's obligations herein, without prior written consent of the CITY, and any attempt by LESSEE to so assign this LEASE or any rights, duties or obligations arising herein shall be void and of no effect. The consent of the CITY will not be unreasonably withheld. Notwithstanding the foregoing,LESSEE shall have the right to assign its rights under this LEASE without the consent of the CITY to any of its subsidiaries or affiliates of which LESSEE • maintains twenty-five percent legal or equitable interest,provided however, that LESSEE shall not be released from any obligation under this LEASE. 3. Hazardous Waste CITY represents and warrants that any activity concerning Hazardous Materials on the Site and the PREMISES which CITY and/or its agents undertakes or permits to be undertaken by other Lessees, Licensees or Permittees of CITY will be done in accordance with all local, state and federal regulations governing the proper use, storage, transportation and disposal of said materials. In addition to the indemnity provided in section IVB4(b), CITY shall indemnify, defend,protect and hold LESSEE harmless from and against any and all claims, loss,proceedings, damages, causes of action, liability, costs or expenses (including attorney's fees) arising as a result of any Hazardous Materials which exist within the property, common areas, building or PREMISES as of the date first written above and any Hazardous Materials which are present within the property, common areas, building or PREMISES after said date which are not the result of the activities or omission of LESSEE. Notwithstanding the foregoing, nothing herein is intended to obligate LESSEE to bring the PREMISES into compliance with applicable requirements, ordinances and statutes unless such compliance is triggered by LESSEE's use, operations or LESSEE's Facilities constructed upon the PREMISES. Not withstanding any other provision of this Lease, LESSEE relies upon the representations stated herein as a material inducement for entering into this Lease. B. LESSEE COVENANTS 1. Compliance with Law LESSEE agrees, at its sole cost and expense, to comply with all the requirements, ordinances and statutes now in force, or which may hereafter be in force, of all municipal, county, state and federal authorities, pertaining to the said PREMISES, or the operations conducted thereon. 2. Taxes LESSEE agrees to pay before delinquency all taxes, adjustments, and fees assessed or levied upon LESSEE or the Leased PREMISES, . including the land and any buildings, structures, machines, appliances or other property or improvements erected, installed or maintained by LESSEE or by reason of the business or other activities of LESSEE upon or in connection with the Leased PREMISES. 7 LESSEE recognizes and agrees that this Lease may create a possessory interest subject to property taxation, and that LESSEE may be subject to further payment of property or possessory interest taxes without any compensatory reduction in rent due to the CITY. 3. Hazardous Waste LESSEE shall not bring any hazardous materials onto the PREMISES except for those contained in its back-up power batteries (lead-acid batteries) and common material used in telecommunications operations, e.g., cleaning solvents. LESSEE will treat all hazardous materials brought onto the PREMISES by it in accordance with all Federal, State and Local laws and regulations. In addition to the indemnity provided in section IVB4(a), LESSEE shall indemnify, defend,protect and hold CITY harmless from and against any and all claims, loss, proceedings, damages, causes of action, liability, costs or expenses (including attorney's fees) arising as a result of any Hazardous Materials which exist within the property, common areas, building or PREMISES as a result of the activities or omission of LESSEE. 4. Indemnity a. LESSEE shall indemnify, defend, and hold harmless CITY, its employees, successors and assigns from and against any,^,and all loss, cost, claim, liability, action, damage, injury to or death of any person(hereinafter referred to as "Claims"), including reasonable attorney's fees, occurring on the PREMISES and arising out of or connected with the negligence or willful misconduct of LESSEE, its agents or contractors, except for Claims arising out of the negligence or willful misconduct of CITY, its agents or contractors, breach of any duty or obligation by CITY under this Lease, or any condition relating to the PREMISES which LESSEE has no obligation to repair or maintain. b. CITY shall indemnify, defend,and hold harmless LESSEE, its employees, successors and assigns from and against any and all loss, cost, claim, - liability, action, damage, injury to or death of any person(hereinafter referred to as "Claims"), including reasonable attorney's fees, arising out of or connected with negligence or willful misconduct of CITY, its agents or contractors, except for Claims arising out of the negligence or willful misconduct of LESSEE, its agents or contractors, violation of any law by LESSEE, its agents or contractors, breach of any duty or obligation by LESSEE under this Lease, or any condition relating to the PREMISES which CITY has no obligation to repair or maintain. c. The foregoing indemnity in a. and b. will survive the termination of this Lease. 8 5. Insurance Coverage LESSEE, at LESSEE's sole cost and expense, shall procure and maintain for the duration of this LEASE, including any extensions of this LEASE and during the period that LESSEE is performing any work upon the expiration or earlier termination of this LEASE to remove the equipment from CITY property, insurance, naming CITY as an additional insured, against claims for injuries to persons or damage to property which may arise from, or in connection with, the performance of the work or provision of SERVICES hereunder by LESSEE, its agents,representatives, employees or subcontractors. a. Minimum Scopy of Insurance The coverage shall include Commercial General Liability together with Broad Form Comprehensive General Liability including explosion, collapse and underground; Automobile liability including Code 1 (any auto), Code 2 (owned autos), Code 8 (hired autos) and Code 9 (nonowned autos); Workers' Compensation as required by the California Labor Code and Employers Liability insurance. b. Minimum Limits of Insurance LESSEE shall maintain limits no less than two million dollars ($2,000,000) combined single limit per occurrence for bodily injury,personal injury and property damage in Commercial General Liability; three million dollars ($3,000,000) in aggregate for public liability and five hundred thousand dollars ($500,000) combined single limit per accident for bodily injury and property damage in Automobile Liability; and Workers' Compensation and Employers Liability limits of one million dollars ($1,000,000)per occurrence. c. Deductibles and Self-insured Retention Any deductibles or self-insured retention must be declared to, and approved by the CITY. d. Policy Provisions The following provisions must be included in the policies: (1.) The CITY of Cupertino, its officers, employees, agents and contractors are to be covered as additional insured regarding liability arising out of activities performed by or on behalf of, :LESSEE,products and completed operations of LESSEE,premises owned, Leased or used by LESSEE, and vehicles owned, Leased, hired or borrowed by LESSEE. The coverage shall contain no special limitations on the scope of protection afforded to the CITY, its officers, employees, agents and contractors. (2.) LESSEE's insurance coverage shall be primary insurance as respects the CITY, its officers, employees, agents and contractors. Any 9 insurance or self-insurance maintained by the CITY,'its officers, employees, agents or contractors shall be excess of LESSEE's insurance and shall not contribute with it. • (3.) Any failure to comply with reporting provisions of the policies by LESSEE shall not affect coverage provided the CITY, its officers, employees, agents or contractors. • (4.) All policies required by this LEASE shall be endorses to state that coverage shall not be suspended, voided, canceled or reduced in • limits except after thirty (30) days prior written notice has been given to the CITY. e. Acceptability of Insurers The insurance carrier shall provide proof of their ratings. All ratings shall be a minimum of"Best A-7." f. Verification of Coverage The CITY shall provide all required forms. LESSEE shall furnish CITY with certificates of insurance and with all endorsements affecting coverage required by this LEASE. The certificates and endorsements for each policy are to be signed by a person authorized by that insurer to bind coverage on its behalf. g. Subcontractors LESSEE shall either include all subcontractors as insured under its policies or shall require all subcontractors to meet CITY's requirements listed above. p 6. Maintenance and Repairs LESSEE agrees to assume full responsibility for the operation, maintenance, and repairs of the PREMISES throughout the term hereof without expenses to the CITY unless otherwise specified herein, and to perform all repairs and replacements necessary to maintain and preserve the PREMISES in good order, in a safe,healthy and sanitary condition, in manner reasonably satisfactory to CITY in compliance with all applicable regulations and laws. LESSEE agrees that CITY shall not be required to perform any maintenance,repairs, or services, or to assume any expense not specifically assumed herein, in connection with the PREMISES. Upon expiration of this Lease, LESSEE will surrender the PREMISES to CITY in good order and condition. 7. Nondiscrimination LESSEE agrees not to discriminate in any manner against any person or persons on account of race,marital status, sex, religious creed, color, ancestry, or national origin in LESSEE's use of the premises, including,but not limited to, the providing of goods, services, facilities, privileges, advantages and accommodations, and the obtaining and holding of employment. 8. Utility Costs LESSEE agrees to order, obtain and pay all utilities, including but not limited to water, gas, electricity, telephone, communications services, 10 sanitary and drainage services, and service installation charges on any improvements made by LESSEE on the PREMISES. LESSEE shall also secure and utilize waste • disposal services for the PREMISES in accordance with applicable local and state ordinances. All utilities on the Site shall be underground. In the event utilities to the PREMISES are furnished by the CITY and are • measured by privately installed sub-meters, LESSEE shall pay as additional rent the cost of utility service provided to the PREMISES and attributable to LESSEE's use ("Utility Charge"). LESSEE shall pay the estimated cost of the Utility Charge monthly in advance together with the monthly Rent. The parties estimate the Utility Charge at the Commencement Date to be Two Hundred Fifty Dollars ($250.00)per month. During the lease term, at CITY's request(which request shall not be more frequent than once every twelve months),LESSEE shall calculate the actual Utility Charge for the immediately preceding twelve (12)months based on the readings from the privately installed sub- meters at CITY's Property. If the actual Utility Charge varies from the estimated Utility Charges paid,the parties shall adjust the Utility Charge to reflect LESSEE's actual usage. 9. Waste. Damage or Destruction LESSEE agrees to give notice to CITY of any fire or damage that may occur on the leased PREMISES within ten(10) days of such fire or damage. LESSEE agrees not to commit or suffer to be committed any waste or injury or any public or private nuisance,to keep the PREMISES clean and clear of refuse and obstructions, and to dispose of all garbage,trash and rubbish in a manner reasonably satisfactory to the CITY. If the PREMISES is destroyed or damaged so as in LESSEE's judgment, to hinder its effective use of CITY's property, LESSEE may elect to terminate this Lease as of the date of the damage or destruction by so notifying CITY in writing no more than 30 days following the date of damage or destruction. In such event, all rights and obligations of the parties which do not survive the termination of this Lease shall cease as of the date of the damage or destruction. 10. Contingency It is understood by LESSEE and CITY that this Lease is fully contingent upon LESSEE obtaining fmal development approvals for - construction of improvements on the leased land from the CITY. In the event that such governmental approvals are not obtained on or before December 31, 1996, after due diligence by LESSEE, LESSEE shall have the right to terminate this agreement within 30 days by notifying CITY in writing. If terminated, LESSEE shall have no further obligation to pay rent or comply with any other provision of this Lease. 11. Interference with Communications LESSEE's facilities shall not - disturb the communications configurations, equipment and frequency which exist on CITY's property on the Commencement Date (hereinafter referred to as "Pre-existing Communications"), and LESSEE's facilities shall comply with all non-interference rules of the Federal Communications Commission(FCC). CITY shall not permit the use of 11 any portion of the Site in a way which interferes with the communications operations of LESSEE described in Paragraph I. A., above. Such interference with LESSEE's communications operations shall be deemed a material breach by CITY, and CITY shall have the responsibility to terminate said interference within a reasonable time of LESSEE's written notice to CITY. In the event any such interference does not cease within ten days time,the parties acknowledge that continuing interference will cause irreparable injury to LESSEE, and therefore, LESSEE shall have the right to terminate the Lease immediately upon notice to CITY. Notwithstanding the foregoing, Pre-existing Communications operating in the same manner as on the Commencement Date shall not be deemed interference. 12. Legal Proceedings LESSEE agrees that should it become necessary for CITY to commence legal proceedings to collect rent,recover possession, or enforce any other provision of this Lease,the prevailing party will be entitled to legal costs and expenses in connection therewith, including reasonable attorney's fees as determined by the court. The parties agree that the laws of the State of California shall be used in interpreting this Lease and will determine all rights and obligations hereunder, and it is agreed that this Lease is executed in Cupertino, CA. 13. Electromagnetic Fields LESSEE shall comply with all present and future laws, orders and regulations relating to Electromagnetic Fields (EMFs), and the American National Standards Institute (ANSI) standards. Without limiting the provision of LESSEE's indemnity contained herein,LESSEE, on behalf of itself and its successors and assigns, shall indemnify the CITY from and against all claims of personal injuries due to EMFs to the extent such personal injuries are caused by LESSEE's facilities on the Premises. C. RESTRICTIVE CONDITIONS 1. Administration and Notices CITY's agent for control and administration of this Lease shall be the Director of Public Works of the CITY of Cupertino, and any communication relative to the terms or conditions or any changes thereto or any notice or notices provided for by this Lease or by law to be given or served _ upon CITY may be given or served by certified letter deposited in the United States mails,postage prepaid, and addressed as indicated below,. Any notice or notices provided for by this Lease or by law to be given or served upon LESSEE may be given or served by depositing in the United States mails,postage prepaid, a certified letter addressed to said LESSEE at the PREMISES or at such other address designated in writing by LESSEE, or may be personally served upon them or any person hereafter authorized by them to receive such notice. Any notice or notices given or served as - provided herein shall be effectual and binding for all purposes upon the principals of the parties so served upon personal service or forty-eight(48) hours after mailing in the manner required herein: 12 City: Director of Public Works City of Cupertino 10300 Torre Avenue Cupertino, CA 95014 Lessee: Pacific Bell Mobile Services 4420 Rosewood Drive, Bldg. 2, 4t Flr. • Pleasanton, CA 94588 CITY or LESSEE may, from time to time, designate any other address for this purpose by written notice to the other party. 2. Entry and Inspection CITY reserves the right to enter the PREMISES for the purpose of viewing and ascertaining the condition of the same, or to • protect its interests in the PREMISES, or to inspect the operations conducted thereon. In the event that such entry or inspection by CITY discloses that the PREMISES are not in a safe, healthy and sanitary condition, CITY shall have the right, after thirty (30) days written notice to LESSEE, to have any necessary maintenance work done for and at the expense of LESSEE and LESSEE hereby agrees to pay promptly and any all reasonable costs incurred by CITY in having such necessary maintenance work done in order to keep the PREMISES in a safe, healthy and sanitary condition. Failure to reimburse CITY for the reasonable costs incurred by CITY within thirty (30) days of completion of said maintenance work shall constitute a default of this Lease. 3. Holding Over. This Lease shall terminate without further notice at expiration of the term. Any holding over by LESSEE after expiration shall be under the same terms of this Lease, as may be amended, and shall not constitute a renewal or extension or give LESSEE any rights in or to the PREMISES except as otherwise expressly provided in this Lease. 4. Merger The voluntary or other surrender of this Lease by LESSEE, or a mutual cancellation thereof, shall not work a merger and shall, at the option of CITY, terminate all or any existing subleases or subtenancies or may, at the option of CITY, operate as an assignment to it of any or all such subleases or subtenancies. 5. Reservation of CITY Rights CITY hereby reserves all rights , title and interest in any and all gas, oil,minerals and water beneath said Leased premises. CITY shall have the reasonable right to enter thePREMISES for the purpose of making repairs to or developing municipal services. CITY hereby reserves the right to grant and use such easements or establish and use such rights-of-way over, under, along and across the PREMISES for utilities,thoroughfares, or access as it may deem advisable for the public good. Provided, however, CITY shall not unreasonably interfere with LESSEE's use of the PREMISES and will reimburse LES SEE for physical damages, if any, to 13 • LESSEE's facilities located on the PREMISES resulting from CITY's exercising the rights retained in this paragraph. Such reimbursement may include a reduction in the annual rent proportionate to the amount of any physical damage as reasonably determined by CITY. CITY shall pay the costs of maintenance and repair of all CITY installations made pursuant to the rights reserved herein. All utilities shall be underground. 6. Time is of the Essence Time is of the essence of each and all of - the terms and provisions of this Lease and this Lease shall inure to the benefit of and be binding upon the parties hereto and any successor of LESSEE as fully and to the same extent as though specifically mentioned in each instance, and all covenants, stipulations and agreements in this Lease shall extend to and bind any assigns or sublessees of LESSEE. 7. Waiver The waiver by CITY of any term, covenant, or condition herein contained shall not be deemed to be a waiver of such term, covenant or condition, or any subsequent breach of the same or any other terms, covenant or condition herein contained. The subsequent acceptance of rent hereunder by CITY shall not be deemed to be a waiver of any preceding breach by LESSEE of any term, covenant or condition of this Lease, regardless of CITY's knowledge of such preceding breach at the time of acceptance of such rent. Failure on the part of CITY to require or exact full and complete compliance with any of the covenants, conditions or agreements of this Lease shall not be construed as in any manner changing the terms hereof and shall not prevent CITY from enforcing any provision hereof. 8. Recordation LESSEE may, at its cost, record this Lease or a memorandum of this Lease. 9. Title. a. CITY warrants that it has full right,power, and authority to execute this Lease; CITY further warrants that LESSEE shall have quiet enjoyment of the PREMISES during the Term of this Lease or any Renewal Term. b. LESSEE has the right to obtain a title report or commitment for a Leasehold title policy from a title insurance company of its choice. If, in the opinion of LESSEE, such title report shows any defects of title or any liens or encumbrances which may adversely affect LESSEE's use of the PREMISES, LESSEE shall have the right to terminate this Lease immediately upon written notice to CITY. 10. Captions The captions of the various articles and paragraphs of - this Lease are for convenience and ease of reference only and do not define, limit, augment, or describe the scope, content, or intent of this Lease or of any part of this Lease. 14 11. Entire Agreement This Lease contains the entire agreement between the parties. No promise,representation, warranty, or covenant not included in this Lease has been or is relied on by either party. Each party has relied on its own examination of this Lease, the counsel of its own advisors, and the warranties, representations, and covenants in the Lease itself. The failure or refusal of either party to inspect the PREMISES,to read the Lease or other documents, or to obtain legal or other advice relevant to this transaction constitutes a waiver of any objection, contention, or claim that might have been based on such reading, inspection, or advice. 12. Severability The invalidity or illegality of any provision of this Lease shall not affect the remainder of the Lease. 13. Successors Subject to the provisions of this Lease on assignment and subletting, each and all of the covenants and conditions of this Lease shall be binding on and shall inure to the benefit of the heirs, successors, executors, administrators, assigns, sublessees, tenants, subtenants, and personal representatives of the respective parties. IN WITNESS WHEREOF,this Lease agreement is executed by CITY, acting by and through the Mayor, and by LESSEE, acting by and through its lawfully authorized officers. APPROVED AS TO FORM: Ckr Attorney CITY OF CUPERTINO • BY 4 TITLE' your, Cit o Cupertino PACIFIC BELL MOBILE SERVICES BY EVAth;% - TITLE Klee 413b/ VLCI MLtJi tv'tPk W( . 15 • • • a IN 1 --------------j:----";-- A-.oi -ter r7I-.. '17 1II aim , Q OInEM41�8N 'IL's?) 0 I VIV58161 I 110.-1 1 ire 010 eO ' 111a n 0 it e rTI 9 Z , _r . vrn 0 • r Z CALICOANIA INTERSTATE 260 I ---T — ' gin-etc`p • _.--- SCTOCD T J�Q. $ rl 1 1 N T-9- - •----t - :L•,z • o o r CT t -- . _-Y .- 0 – -- --- 0 1 _c ^ BAYS^ 041Ri =II 2F= Z k. 0 . OPEN 0 ��a°: a$ °2 ��e \ _ \ Rte" i ._ • 000 o rr,c� � s$ R $ � � I )i''' • Ion ° A1, 0' 4 fN:-.: . o®eaee000 r0 �� ! 1iI ! I1i1IVor xcn ( t o $ E iaa2 „._i ,- 1 w (. .)I3) •� ? , g a No,Rv 0. - ' .�1 _ FA- ,Z I i ( ai(.')I . ii:11J• )i_.• ( :i �(•�) /-=.�: ' i !) eo- ^ o L — — -- ----- . - -–—k---- - • _. . _ co N PACIFIC ... .BELL® s Fy D 1 p o Mobile Services - X m m a § S 1 _Z_ ~ �� 4420 ROSEWOOD DR. BIRO. 2, 4TH FLOOR �' >E., — / . �\ >D PLEASANTON, CALIFORNIA 9458E ' 9 i Igo . / • am -D O .-I O 1 z —4 I00 0 z p =._ m • r rn D O _1 0i • 0 0 z • k. I1 g� rn -cn ,- 'rn 1 D O II�i © 0 o O z s N 1O g� 0000 O O=Pq a r9 f—' 5 i 1 A ' 7 e D O j - O a Rxt .-N o O Rg 0z: z '43 "� i. A In C O ° O f�l C in N °�N PACIFIC © BELL® ›IZ m A \ i./ D a c o a Mobile Services -g n s .<. o 'N. u j 44:to ROSEWOOD DR. BLDG. 2, 4TH FLOOR ^ 3 O m T. / I \ PU:ASANTON. CAUFORNIA 94588 5 9 z .o Bond No. KO 50 30 481 • Premium: $100. PERFORMANCE AGREEMENT PERMIT BOND KNOW ALL BY THESE PRESENTS, That we, PACIFIC BELL MOBILE SERVICES, as • Principal, and the INSURANCE COMPANY OF NORTH AMERICA, as Surety, are held and firmly bound unto the CITY OF CUPERTINO, as Obligee, in the sum of TEN THOUSAND AND NO/100THS ($10,000.00) Dollars for which sum, well and truly to be paid, we bind ourselves, our heirs, executors, administrators, successors and assigns,jointly and severally, firmly by these presents. THE CONDITION OF THIS OBLIGATION IS SUCH, That WHEREAS, The Principal has entered into a Lease Agreement for the construction of an Antenna Site at Cupertino Service Center. NOW THEREFORE, if the Principal will truly and faithfully perform the dismantling and removal work required if the PCS facility becomes inoperative or abandoned for Ninety days (90) then this obligation to void; otherwise to remain in full force and effect. PROVIDED HOWEVER, that this Bond is written upon the following expressed conditions: (1) That in no event shall the liability of the Surety hereunder be cumulative from year to year, nor shall the Surety in any event be liable for more than the amount of the bond. (2) This bond may be canceled by the Surety by the sending of notice in writing to the Obligee, stating when, not less than thirty (30) days thereafter, liability hereunder shall terminate as to subsequent acts or omission of the Principal. SIGNED,AND SEALED this 23rd day of January, 1997. PACIFIC BE L MOBILE SERVICES By: INSURANCE COMPANY OF NORTH AMERICA By: / C� Larry C. Ger' an, Attorney-In-Fact 10680 Gold Center Drive Rancho Cordova, CA 95670 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT STATE OF CALIFORNIA ) } COUNTY OF SAN FRANCISCO } On January 23, 1997 before me, _ Doris B. Diaz, Notary Public Date Name.Title ofOfficer,Notary Public personally appeared Larry C. Gerrman, Attorney-In-Fact ' NAllME(S)OF SIGNER(S) personally known to me - OR - El proved to me on the bases of satisfactory evidence to be the person whose namer is//subscribed to the within instrument and acknowledged to me that he/PC executed the same in hi .) / authorized capacity(, and that by his/Q /t signature on the instrument the person, or the entity upon behalf of which the person' acted executed the instrument. WITNESS my hand and official seal. +" DORIS B. DIAZ 0 a 1 NOTARY PUBLIC.CALIFORNIA o a / SAN FRANCISCO COUNTY i 9r My Calm.Expires May 2?.,199W f�v Signature ofNotary Power of INSURANCE COMPANY OF NORTH AM. .CA , , 658859 - Attorney " • • • • CIGNA • Know all men by these presents: That INSURANCE COMPANY OF NORTH AMERICA,a corporation of the Commonwealth of Pennsylvan. having its principal office in the City of Philadelphia,Pennsylvania, pursuant to the following Resolution,adopted by the Board of Directors of the said Company on December 5, 1983,to wit: • 'RESOLVED.That pursuant to Articles 3.48 and 5.1 of the By-Laws the"following Rules shall govern the execution for the Company of bonds,undertakings,recognizances,contracts and other writings in the nature thereof. (I) That the President,any Senior Vice President,any Vice President,and Assistant Vice President,or any Attorney-in-Fact,may execute for and on behalf of the C contracts and other writings in the nature thereof,the same to be attested when necessary by the Corporate Company Co and yl I bonds.t undertaking,e ; that the gniarcet, I orpora Secretary,or any Assistant Corporate Secretary,and the seal of the Corrgarny affixed thereto;and that the President, any Senior Vice President,any Vice President or any Assistant:Vice President may appoint and authorize any other Officer(elected or of the of all such writings on behalf of the.Company and to affix the seat of the Company thereto. appointed) Company, Attorneys-in-Fact to so execute or attest to the execution 1(2) Any such writing executed in accordance with these Rules shall be'as binding upon the Company in any case as though signed by the President and attested to by the Corporate Secretary. '' i- (3) The signature of the President,or a Senior Vice President,or a Vice President,or an Assistant Vice President and the seal of the Company may be affixed by facsimile on any power of attorney granted pursuant to this Resolution,and the signature of a certifying Officer and the ml of the Company may be affixed by facsimile to any certificate of any such power,and any such power or certificate bearing such facsimile signanue and seal ' shall be valid and binding on the Company,. . I(4) Such other Officers of the Company,and Attorneys-in-Fact shall have authority to certify or verify copies of this.Resolution,the By-Laws of the Company,and any affidavit or record of the Company necessary to the discharge of their duties. I(5) The passage of this Resolution does not revoke any earlier June 9,granted by Resolutions of the Board of Directors adopted on Ju 9,1953,May 28,1975 and March 23,1977.' does hereby nominate,constitute and appoint.:D. RICHARD STINSON, LARRY C. GERRMAN, both of the City of San Francisco, State of CALIFORNIA--------- it •u) oGT, ,each individually if there be more than one named,its true and lawful attorney-in-fact, to make, execute, seal and deliver on its behalf, and as its act and aj deed any and all bonds, undertakings, recognizances, contracts and other writings in the nature thereof in penalties not exceeding .. '0 Twenty Million DOLLARS($20,000,000)each, and the execution of such writings in pursuance of these presents shall be as o ' y binding upon said Company,as fully and amply as if they had been duly executed and acknowledged by the regularly elected officers of the Company at its 8 .� principal office. ami ire-, IN WITNESS WHEREOF, the said William Jungreis , Vice-President, has hereunto subscribed his name and affixed the m v td corporate seal of the said INSURANCE COMPANY OF NORTH AMERICA this 18th day of January 1996 a z o « INSURANCE COMPANY OF NORTH AMERICA hi illa • . V t� ;es z t' .� William Jungreis Vice President LIJ s. Ca Z 0 H COMMONWEALTH OF PENNSYLVANIA o be COUNTY OF PHILADELPHIA ss. _ O 4+ o . On this 18th day of January, A.D.:1996, "before me, a Notary Public of the Commonwealth of Pennsylvania in and for the County �, of Philadelphia came • William Jungreis ,Vice-President of the INSURANCE.COMPANY OF NORTH AMERICA to me personally c e) known to be the individual and officer who executed the preceding instrument, affixed and he acknowledged that he executed the same,and that the seal axed to • .2 the preceding instrument is the corporate seal of said Company; that the said corporate seal and his signature were duly affixed by the authority and E •E direction of the said corporation,--and that Resolution,adopted by the Board of Directors of said Company,referred to in the preceding instrument,is now in 0 .r? force. tt" IN'T1: l WHEREOF, I have hereunto set my hand and affixed my official seal at the City of Philadelphia the day and year first above b v writte A���"" '/�.//j z• vj�■N' NOTARIAL SEAL fetatif SE * v (Se 6 %,i MARY E COWNS,Notary Public EV ��* = City of Philadelphia,Phila.County '� t' My Commission Expires Jtme 22,1998 • . _ i y•• t1 ; �••'�3YLVQ►�• �� . :Notary Public /ii�q fRY!����1�5� ))0� . - I,the undersignedl9tJ try of INSURANCE COMPANY OF NORTH AMERICA, do hereby,certify.that.the.original POWER OF ATTORNEY, of- which the foregoing is a substantially,true and correct copy,is in full force and effect. In witness whereof, I have hereunto subscribed my name as Secretary, and affixed the corporate seal xe of the Corporation, this 23rd der'• -f ........ JtInlliry „ 97, �(/ - : Debra H.Paziora Secretary THIS POWER OF ATTORNEY MAY NOT BE USED.TO EXECUTE ANY BOND WITH AN INCEPTION DATE AFTER January 18, 1998. BS-33363c Ptd.in U.S.A. ,- . • c� �c ,(� 420 Rosewood Driv .Building 2.3rd Floor PAC I F I C TJ B E - !i/- Pleasanton.Califn is 94588 Wireless JP.-- (925)227-300 p(ci • flOt& November 9, 1999 Director of Public Works City of Cupertino 01 10300 Torre Avenue PUBLIC WORK Cupertino, CA 95014 NOV 15 1999 Re: Site No. SF-551-04 10555 Mary'Avenue Cupertino, CA ea/A4k6: - C,,cV'6.0,1(- Dear Sir/Madam: Paragraph IIIC of the Antenna Site Lease Agreement for the above mentioned property provides for a rent increase of 5% effective December 23, 1999. • ,rit.,( Therefore, effective December 23, 1999, I have calculated the rent to a -1 389.15 err • month. Please review the attached worksheet that shows the calculations. • Thank you for your support of our PCS project, and please do not hesitate to contact me at 925-227-4721, should you have any questions or concerns. Regards, gittly, fit 6U/L! • Vickie Madden Property Management • encl. cc: �I • Department of Finance City of Cupertino Lease File: SF-551-04 RI Chron File • December 1999 Rent Increase Calculations Site No: SF-551-04 Base Rent: $1,323.00 Increase in rent amount is 5%per annum above current rent. $1,323.00 x 0.05 =$66.15 $1,323.00 +$66.15 =$1,389.15 Monthly rent for the year December 23, 1999 through December 22, 2000 is $1,389.15 Prorated Rent: $66.15 /31 = $2.13 $2.13x9 = $19.21 $1,323.00+$19.21 =$1,342.21 January 2000 rent check will be in the amount of$1408.36 c:\ Kevin Flaherty 844 Dubuque Avenue PACIFIC♦IBE1.�.s • roject Manager . South San Francisco,California 94080 iite Acquisition and Construction )415)737-5355 Mobile Services Fax(415)737-5387 Mobile(415)987-4839 • PUBLIC WORKS February 20, 1997 FEB 211997 Director of Public Works . City of Cupertino - 10300 Torre Avenue Cupertino, CA 95014 Re: PROPOSED COMMUNICATIONS SITE. 10555 Mary Ave., Cupertino Our ref.: SF-551-04 Hwy. 85 &4th To whom it may concern: Pursuant to Paragraph IIA of the Antenna Site Lease Agreement, I am pleased to • announce that we have obtained the necessary planning and building permits to begin construction. The commencement date of the Initial Term was December 23, 1996. Accordingly, enclosed is check number 2626 for$3948.39 in payment of first month's rent ($348.39), January's rent($1200.00),February's rent ($1200.00) and March's rent ($1200.00). The first rent payment has been pro-rated from the commencement date for the month of December. Subsequent monthly payments will be made by the PBMS Accounting Group in the full rental amount ($1200.00) on the first day of each month. If you have any questions regarding rental payments, please call our Property Manager, Ms. Barbara Hendricks, at (510) 227-3189. The building contractor appointed by PBMS to construct the communications site is Rudolph & Sletten. Your Site Acquisition Representative will be contacting you in the near future to arrange a date for a pre-construction meeting in order to discuss the building program and to agree on a date for the commencement of the building work. Should you require any additional information regarding construction please do not hesitate to contact Jan Hadsell, at telephone number (415) 737-5405. • Sincere , • r ` cid F. Kevin Flaherty NETWORK DEPLOYMENT MANAGER cc: Rudolph & Sletten Barbara Hendricks, Property Manager sda..nv II ma[U41t-LI its vi.ot iirriws �jAio () ,, NaVr /S,Zoo J CITY OF CUPERTINO To: Carol Augstine, Finance Manager From: Carmen Lynaugh Date: 01/05/2004 Subject Nextel Rental amount for 2004 Every year a Five percent increase is due on Nextal's rental rate for their site at our Service Center. The current rate is $1984.50 per month and the new rate for 2004 is $2083.73 per month. Please make this change in their monthly billing. Thank you, Ct � i 54-VA,- , '- i °° ' — 14 1,$ oo f v . J cw..1,20 O 2 - 1 1% 0 ..) cw..t Zoo 3 - If 19 SS4i;So rna J ati•. I, Too 4 -• el_ of53 ,7 3 -• I,ZOOS - # 2,lg"1 ,'Y2_ . I X2006 — 2,,2"I-7. 3' cor 6 T . sk,rk,c, anp- • \ q-cf° e4,10; r.es �•31 205 4.04 4-1(D"Peci W‘‘.44‘. Z 52► 10300 Torre Ci Avenue ty Hall Cupertino,CA 95014-3255 J PH: (408)777-3354 CITY I F FX: (408)777-3333 CUPERJINO _ PUBLIC WORKS DEPARTMENT File No. 50,890.02 November 27, 2007 Nextel of California, Inc. 1255 Treat Blvd., Ste. 800 Walnut Creek,Ca 94596 ATTN: Property Management Reference: Annual Antenna Site Lease Rent Adjustment The five-year extension of the Antenna Site Lease Agreement(Agreement)between the City of Cupertino and Nextel of California is about to enter its third year. Per the terms of the Agreement and the extension, a cost of living increase of 5% is to be applied annually to the rent for the site. Based on the initial lease amount of$1,800.00 per month,the rent will be $2,532.78 per month starting January 2008 and continuing through December 2008. If you have questions, please call Public Works at(408) 777-3354. Sincerely, Glenn Goepfert Assitant Director of Public Works Copy to: Nextel Communications 2001 Edward Halley Dr. Reston,Va 20191-3436 Sixth Floor,Mail Stop 6E630 Site Leasing Services; Contracts Manager Finance Printed on Recycled Paper L. I- D ,,-_:, --::: • .....::: --= , — . ,,,, ........ • ........ ... f\. .,-.1:.' • ••-- ... 1---- • -' --.7. ... :-... ...-- ........- 14(,) ... ... --:-. : — .., .., --2' 'E. a) . ... ---- - - ' - cp E .-- ,-. . cp CD a) - ..,, o . Lc) a3.,... ................• _ a) .4. l as ... ..._ ..,. . e.., •— o I_ Oil '..) o -.7... . el (..) , Lo c ,,,_. 1.7e. ul 15 r a) (NI .> Z ,- 5 < tid i)1 tn (yl e-4 m• t,• Z = = kn ci. CPN <t w C.) ;.. ^ 6, © '71' EN 7:J en = • fie 4 :1-• ,„,- .0 WWI Comol) TOWER/STRUCTURE BOND Bond Number: 674011096 KNOW ALL MEN BY THESE PRESENTS, THAT Nextel of California, Inc., as Principal, and Liberty Mutual Insurance Company, a corporation duly organized under the laws of the State of Massachusetts, as Surety, are held and firmly bound unto City of Cupertino , 10300 Torre Avenue, Cupertino, CA 95014-3202, as Obligee, in the sum of Ten Thousand And 00/100 Dollars ($10,000.00) lawful money of the United States, for the payment of which, well and truly to be made, we bind ourselves, our heirs, executors, administrators, successors and assigns, jointly and severally, firmly by these presents, the liability of the Surety being limited to the penal sum of this bond regardless of the number of years the bond is in effect. WHEREAS the Principal has entered into a written agreement with the property owner for the placement of a tower or structure furnishing telephone, television or other electronic media service, which agreement sets forth the terms and conditions which govern the use of such towers or structures and which agreement is hereby specifically referred to and made part hereof, and WHEREAS, the City of Cupertino requires the submission of a bond guaranteeing the maintenance, replacement, removal or relocation of said tower or structure located at 10555 Mary Avenue, Cupertino, CA 95014 -Sprint Nextel Site #CA2317D (De Anza/Stevens Creek). NOW THEREFORE, the condition of this obligation is such, that if the above bounden Principal shall perform in accordance with the aforesaid ordinance and/or agreement, and indemnify the Obligee against all loss caused by Principal's breech of any ordinance or agreement: relating to maintenance, replacement, removal or relocations of a tower or structure, then this obligation shall be void, otherwise to remain in full force and effect unless cancelled as set forth below. THIS BOND may be cancelled by Surety by giving thirty (30) days written notice to the Obligee by registered mail. Such cancellation shall not affect any liability the Surety may have or incurred under this bond prior to the effective date of the termination. Provided that no action, suit or proceeding shall be maintained against the Surety on this bond unless action is brought within twelve (12) months of the cancellation date of this bond. THIS BOND signed, sealed, dated on the 01st day of May , 2007. This bond is effective the 25th day of April , 2007. Nextel of California, Inc. PrBy: -e1 Principal - lit 44 /1t4 5 .11 45 i y Liberty Mutal Insurance Company , Surety By / / -/ /. _ �� --- Paige M. T •r, Attorney-In-Fact 1984954 THIS POWER OF ATTORNEY IS NOT VALID UNLESS IT IS PRINTED ON RED BACKGROUND. This Power of Attorney limits the acts of those named herein,and they have no authority to bind the Company except in the manner and to the extent herein stated. LIBERTY MUTUAL INSURANCE COMPANY BOSTON,MASSACHUSETTS POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS: That Liberty Mutual Insurance Company (the 'Company), a Massachusetts stock insurance company,pursuant to and by authority of the By-law and Authorization hereinafter set forth,does hereby name,constitute and appoint PAIGE M.TURNER,ROY R.YANCEY,KEITH A.STILES,MICHAEL J.GRANACHER, KRISTY BARBER,ALL OF THE CITY OF KANSAS CITY,STATE OF MISSOURI ..: .. .... . , each individually if there be more than one named its true and lawful attorney-in-fact to make execute,seal,acknowledge and deliver,for and on its behalf as surety and as its act and deed,an:and all undertakings,bonds, recognizances and other surety obligations in the penal sum not exceeding FIFTY MILLION AND 00/100******** DOLLARS($ 50;000,000.00 )each,and the execution of such undertakings, bonds, recognizances and other surety obligations, in pursuance of these presents, shall be as binding upon the Company as if they had been duly signed by the president and attested by the secretary of the Company in their own proper persons. That this power is made and executed pursuant to and by authority of the following By-law and Authorization: ARTICLE XIII-Execution of Contracts:Section 5.Surety Bonds and Undertakings. Any officer of the Company authorized for that purpose in writing by the chairman or the president, and subject to such limitations as the chairman or the president may prescribe,shall appoint such attorneys-in-fact,as may be necessary to act in behalf of the Company to make, r3 execute, seal, acknowledge and deliver as surety any and all urdertakings, bonds, recognizances and other surety obligations. Such 'C attorneys-in-fact,subject to the limitations set forth in their respective powers of attorney, shall have full power to bind the Company by their N signature and execution of any such instruments and to attach thereto the seal of the Company. When so executed such instruments shall be 2.D as binding as if signed by the president and attested by the secretary. C y 3 • 3 a 0 .Q By the following instrument the chairman or the president has authorized the officer or other official named therein to appoint attorneys-in-fact: - d >. ]C Pursuant to Article XIII, Section 5 of the By-Laws, Garnet W. Elliott, Assistant Secretary of Liberty Mutual Insurance Company, is hereby R .^ authorized to appoint such attorneys-in-fact as may be necessary to act in behalf of the Company to make,execute, seal,acknowledge and _ u 3 deliver as surety any and all undertakings,bonds,recogn zances and other surety obligations. H▪ Ch 3▪ That the By-law and the Authorization set forth above are true copies thereof and are now in full force and effect a tL 52 RI CE u > IN WITNESS WHEREOF, this Power of Attorney has been subscribed by an authorized officer or official of the Company and the corporate seal of 0 fz .— Liberty Mutual Insurance Company has been affixed thereto in Plymouth Meeting,Pennsylvania this 18th day of July , Q M e = 2006 -13 0 LIBERTY MUTUAL INSURANCE COMPANY `- � :.L � o Byt-(--#7-..- G✓- LG� c. - F j' Garnet W.Elliott,Assistant Secretary H o 5'.,,, COMMONWEALTH OF PENNSYLVANIA ss '--=--'- ..-o 7 rn COUNTY OF MONTGOMERY p A cOn this 18th day of July , 2006 , before me, a Notary Public, personally came Garnet W. Elliott,to me known, and acknowledged 3 that he is an Assistant Secretary of Liberty Mutual Insurance Company; that he knows the seal of said corporation; and that he executed the above 72.. c Power of Attorney and affixed the corporate seal of Liberty Mutual Insurance Company thereto with the authority and at the direction of said corporation. IN TESTIMONY WH.,-deg , unto subscribed my name and affixed my notarial seal at Plymouth Meeting,Pennsylvania,on the day and year t et - V first above written. QWW �' ` ..02 : A: t C# tuSOtywEALd arto h(ti LYA A E i• a5 OF j T : y4s oO 0 i "tea.. Ter sa Pastella,Notary Public v r mt � Ezprest .28; ry Y kAear.#enasyluaniaAssocatWnci€lWxtea I* CERTIFICATE N., ., RY I,the undersigned,Assistan ecretary of Liberty Mutual Insurance Company, do hereby certify that the original power of attorney of which the foregoing is a full,true and correct copy,is in full force and effect on the date of this certificate;and I do further certify that the officer or official who executed the said power of attorney is an Assistant Secretary specially authorized by the chairman or the president to appoint attorneys-in-fact as provided in Article XIII,Section 5 of the By-laws of Liberty Mutual Insurance Company. This certificate and the above power of attorney may be signed by facsimile or mechanically reproduced signatures under and by authority of the following vote of the board of directors of Liberty Mutual Insurance Company at a meeting duly called and held on the 12th day of March,1980. VOTED that the facsimile or mechanically reproduced signature of any assistant secretary of the company, wherever appearing upon a certified copy of any power of attorney issued by the company in ccnnection with surety bonds,shall be valid and binding upon the company with the same force and effect as though manually affixed. IN TESTIMONY WHEREOF,I have hereunto subscribed my name and affixed the corporate seal of the said company,this 1st day of May , 2007 Il,r By /' _ . h. David M.Carey,Ass nt Secretary • WARM"-,THIS POWER OF ATTORNEY IS INVALID WITHOUT THE P-')BORDER This Power of Attorney is granted under and by the,.athority of the following resolutions adopted by the Boards.._Directors of Farmington Casualty Company,Fidelity and Guaranty Insurance Company, Fidelity and Guaranty Insurance Underwriters, Inc., Seaboard Surety Company, St. Paul Fire and Marine Insurance Company, St. Paul Guardian Insurance Company, St. Paul Mercury Insurance Company,Travelers Casualty and Surety Company,Travelers Casualty and Surety Company of America,and United States Fidelity and Guaranty Company,which resolutions are now in full force and effect,reading as follows: RESOLVED,that the Chairman,the President,any Vice Chairman, any Executive Vice President, any Senior Vice President, any Vice President, any Second Vice President,the Treasurer,any Assistant Treasurer,the Corporate Secretary or any Assistant Secretary may appoint Attorneys-in-Fact and Agents to act for and on behalf of the Company and may give such appointee such authority as his or her certificate of authority may prescribe to sign with the Company's name and seal with the Company's seal bonds,recognizances,contracts of indemnity,and other writings obligatory in the nature of a bond,recognizance,or conditional undertaking,and any of said officers or the Board of Directors at any time may remove any such appointee and revoke the power given him or her;and it is FURTHER RESOLVED,that the Chairman,the President,any Vice Chairman,any Executive Vice President,any Senior Vice President or any Vice President may delegate all or any part of the foregoing authority to one or more officers or employees of this Company,provided that each such delegation is in writing and a copy thereof is filed in the office of the Secretary;and it is FURTHER RESOLVED,that any bond,recognizance,contract of indemnity,or wri'ing obligatory in the nature of a bond,recognizance,or conditional undertaking shall be valid and binding upon the Company when(a)signed by the President,any Vice Chairman,any Executive Vice President,any Senior Vice President or any Vice President,any Second Vice President,the Treasurer,any Assistant Treasurer,the Corporate Secretary or any Assistant Secretary and duly attested and sealed with the Company's seal by a Secretary or Assistant Secretary;or(b)duly executed(under seal,if required)by one or more Attorneys-in-Fact and Agents pursuant to the power prescribed in his or her certificate or their certificates of authority or by one or more Company officers pursuant to a written delegation of authority; and it is FURTHER RESOLVED,that the signature of each of the following officers:President,any Executive Vice President,any Senior Vice President,any Vice President, . any Assistant Vice President,any Secretary,any Assistant Secretary,and the seal of the Company may be affixed by facsimile to any power of attorney or to any certificate relating thereto appointing Resident Vice Presidents, Resident Assistant Secretaries or Attorneys-in-Fact for purposes only of executing and attesting bonds and undertakings and other writings obligatory in the nature thereof,and any such power of attorney or certificate bearing such facsimile signature or facsimile seal shall be valid and binding upon the Company and any such power so executed and certified by such facsimile signature and facsimile seal shall be valid and binding on the Company in the future with respect to any bond or understanding to which it is attached. I,Kori M.Johanson,the undersigned,Assistant Secretary,of Farmington Casualty Company,Fidelity and Guaranty Insurance Company,Fidelity and Guaranty Insurance Underwriters, Inc., Seaboard Surety Company, St. Paul Fire and Marine Insurance Company, St. Paul Guardian Insurance Company, St. Paul Mercury Insurance Company,Travelers Casualty and Surety Company,Travelers Casualty and Surety Company of America,and United States Fidelity and Guaranty Company do hereby certify that the above and foregoing is a true and correct copy of the Power of Attorney executed by said Companies,which is in full force and effect and has not been revoked. IN TESTIMONY WHEREOF,I have hereunto set my hand and affixed the seals of said Companies this day of U ( U�� ,20 D / Kori M.Johans"Assistant Assistant Secretary • 0.5U �pv•wr ? �s, *r ..)„,00.2..)„,00...)„,00.2�2 6'�"`i, ∎t 0 6 gq o J m ANas t m ejr"le ) js 2 MOOORtttp 1 192 7 Z AO A> m pope!,4117 ° HARTFORD,t 9 a Z o b 16G pc+s "®/ 1951 'tre'. EA tyS8ALii I et v ° N SA `y. 0+4 d pF N EW cc, ;",4:SN ow.-7-11 AN To verify the authenticity of this Power of Attorney,call 1-800-421-3880 or contact us at www.stpaultravelersbond.com.Please refer to the Attorney-In-Fact number, the above-named individuals and the details of the bond to which the power is attached. WARNING:THIS POWER OF ATTORNEY IS INVALID WITHOUT THE RED BORDER WARNIN' THIS POWER OF ATTORNEY IS INVALID WITHOUT THE R' 4ORDER ST PAUL POWER OF ATTORNEY TRAVELERS Farmington Casualty Company St.Paul Guardian Insurance Company Fidelity and Guaranty Insurance Company St.Paul Mercury Insurance Company Fidelity and Guaranty Insurance Underwriters,Inc. Travelers Casualty and Surety Company Seaboard Surety Company Travelers Casualty and Surety Company of America St.Paul Fire and Marine Insurance Company United States Fidelity and Guaranty Company Attorney-In Fact No. 213838 Certificate No. 0 0 0 9 8`t 7 3 6 KNOW ALL MEN BY THESE PRESENTS:That Seaboard Surety Company is a corporation duly organized under the laws of the State of New York,that St.Paul Fire and Marine Insurance Company,St.Paul Guardian Insurance Company and St.Paul Mercury Insurance Company are corporations duly organized under the laws of the State of Minnesota,that Farmington Casualty Company,Travelers Casualty and Surety Company,and Travelers Casualty and Surety Company of America are corporations duly organized under the laws of the State of Connecticut,that United States Fidelity and Guaranty Company is a corporation duly organized under the laws of the State of Maryland,that Fidelity and Guaranty Insurance Company is a corporation duly organized under the laws of the State of Iowa,and that Fidelity and Guaranty Insurance Underwriters,Inc.is a corporation duly organized under the laws of the State of Wisconsin(herein collectively called the"Companies"), and that the Companies do hereby make,constitute and appoint Rodney W. Paddock, Pamela Sage-Biggers, Glenna L. Blair, Anita Hawkins, Mark D. Holt, Kevin J. O'Donnell, R. Neil Weatherford, Martha C. Roper, Natalie A. Siegman, Heidi V.Johnson, and Shawn Byrne of the City of Overland Park ,State of Kansas ,their true and lawful Attorney(s)-in-Fact, each in their separate capacity if more than one is named above,to sign,execute,seal and acknowledge any and all bonds,recognizances,conditional undertakings and other writings obligatory in the nature thereof on behalf of the Companies in their business o `uaranteeing the fidelity of persons,guaranteeing the performance of contracts and executing or guaranteeing bonds and undertakings required or pe `"tfrin anreidkqons o 2E-pitreedings allowed by law. 27th IN WITNESS WHEREOF,the Companies have caused this ins µ o s nend ;'io orate seals to be hereto affixed,this day of June 2006 ti ,: { ,6"" • Farmington Casualty Co \.\ St.Paul Guardian Insurance Company Fidelity and Guaranty Its ss rantOrt IPaRD,40 St.Paul Mercury Insurance Company Fidelity and Guaranty InsuetnderwrItirs,Inc. Travelers Casualty and Surety Company Seaboard Surety Company Travelers Casualty and Surety Company of America St.Paul Fire and Marine Insurance Company United States Fidelity and Guaranty Company pStYiETy ova 6 SRN \Nf id. ��fL '•--'� '`i. N r'� ~S[�S V A���ti z �py..�..".»A..•.Ua,A P /15.7.!;:"F.- P.\N.S q J f P A ,606 l6 w / N qy � Y Y 4 u O 982 l0 � Rr� 19*2 ti " VOR F/ {IYPOR f � • `< • i <:< 1 ; 1951 g;SE ! oSEAL,Ii d / t O• QF#NE \ ANC', ... 00 4 wft A1N State of Connecticut By: City of Hartford ss. orge Wdompson,Sen• President On this the 27th day of June 20°, efore me personally appeared George W.Thompson,who acknowledged himself to be the Senior Vice President of Farmington Casualty Company, Fidelity and Guaranty Insurance Company,Fidelity and Guaranty Insurance Underwriters,Inc., Seaboard Surety Company, St. Paul Fire and Marine Insurance Company, St. Paul Guardian Insurance Company, St. Paul Mercury Insurance Company,Travelers Casualty and Surety Company,Travelers Casualty and Surety Company of America,and United States Fidelity and Guaranty Company,and that he,as such,being authorized so to do,executed the foregoing instrument for the purposes therein contained by signing on behalf of the corporations by himself as a duly authorized officer. t�,•TET In Witness Whereof,I hereunto set my hand and official seal. 'TM VN wr C My Commission expires the 30th day of June,2011. * POMP * Marie C.Tetreault,Notary Public 58440-6-06 Printed in U.S.A. WARNING:THIS POWER OF ATTORNEY IS INVALID WITHOUT THE RED BORDER TRAVELERS CASUALTY AND SURETY COMPANY TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA Hartford, Connecticut 06183 CANCELLATION NOTICE Date: August 17, 2006 Office at: 7465 W. 132nd Overland Park, KS 66213 City of Cupertino 10300 Torre Avenue Cupertino, CA 95014 Re: Nextel of California, Inc. dba Nextel Communications Bond #53S103303426 Type of Bond/Policy: Site Restoration Bond Operation of a Communications Facility located at 10555 Mary Avenue Nextel Site No. CA 2151B/Hwy 280/85 You are hereby notified that this Company elects to cancel the above captioned bond required by City of Cupertino, CA. This cancellation is to take effect on September 22, 2006. in accordance with the terms of said Bond or Policy. Travel- Casua__ -f America *Ai/�. By: , An r 'wkins • ey-in- act Bob Rizzo From: Jim Davis Sent: Tuesday, October 09, 2007 11:33 AM To: Bob Rizzo Subject: FW: FCC Cell Tower Order Affecting Municipalities FYI Original Message From: Rick Kitson Sent: Tuesday, October 09, 2007 8:25 AM To: Jim Davis Cc: David Knapp Subject: FW: FCC Cell Tower Order Affecting Municipalities FYI, We may be seeing some activity around the towers at the yard. Rick Original Message From: John W Pestle [mailto:jwpestle @varnumlaw.com] Sent: Mon 10/8/2007 3:49 PM To: John W Pestle Cc: Subject: FCC Cell Tower Order Affecting Municipalities This will alert you about an FCC ruling requiring backup power for cell towers which may generate activity and litigation for municipalities in the next year regarding (1) cell towers on municipal property, and (2) zoning, permits and other regulations affecting cell towers on private property. The key points are as follows. Order: On October 4 the FCC issued an order reinforcing and clarifying a prior order requiring cell phone (and landline) phone companies within one year to install backup power supplies at most sites (and have portable power supplies available for sites without permanent backup power) . This is an outgrowth of Hurricane Katrina, a finding that telephone and cell phone companies there did not have adequate backup power supplies to keep the phones operating, and hence that backup power supplies need to be installed at key phone and cell phone locations nationwide. See http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-07-177Al.doc In its order, the FCC declined to exempt cell antennas in non-traditional locations, such as the small "distributed antenna" systems popularized by companies such as NextG, which are often located on utility poles, light poles, in the rights of way, or camouflaged in steeples and the like. The FCC order does not by its terms preempt state or local laws or leases which prevent backup power installations--but as set forth below, cell companies may claim that Federal law preempts in any event, even as to lease terms that prohibit dangerous substances (e.g.--gasoline) from being introduced on the municipal land or building being leased for a cell antenna. Municipal Sites: As a result, municipalities may shortly see a lot of activity to put generators and battery backup systems at cell tower sites on private and public property, including those in the rights of way. This may cause problems for towers in sensitive municipal locations, such as on the roofs of municipal or school buildings, or on water towers, because the systems typically involve gas, diesel or propane powered generators (with accompanying fuel tanks) or batteries with lots of sulfuric acid. Lease terms often prohibit such dangerous substances or require municipal approval of changes from the initial installation, and either type of system is heavy, which may cause building or structural concerns. 1 Cell companies may seek lease amendments to allow them to install such backup power systems (in fact the FCC said they should seek such amendments, if leases now preclude such systems) . Due to decisions by the Ninth Circuit Court of Appeals, in west coast and adjacent states the cell companies may claim tzat lease provisions effectively preventing backup power systems violate Section 253 of the Federal Communications Act. On the other hand, municipalities may have concerns if they justifiably don't want such systems installed on particular properties, yet the lease does not clearly preclude them. Zoning, Building Codes and the Like: The cell phone companies complained to the FCC that local zoning laws, building codes or environme:rital restrictions may prevent backup power installations. Municipalities should be aware that if this is the case, they may face challenges to such laws not under the FCC order but under the cell tower zoning provisions of the Federal 1996 Telecommunications Act. These provisions apply to all state and local laws which regulate the "placement, construction or modification" of cell towers--i.e. building codes, permits and other local requirements, not just zoning. They require action by a municipality in "a reasonable time" which here the carriers will argue is very short, given the FCC directive for backup power installations to be completed within a year. Carriers will likely argue that local requirements which they can't comply with "prohibit or effectively prohibit" the provision of cell phone service, in violation of the statute. And (this is often the hardest part) under the statute, all denials have to "in writing" and based on "a written record". Although these requirements sound simple, the courts have interpreted them in ways that local practices and procedures often may not meet. Failure to meet them is one of the most common reasons local zoning decisions violate the Federal statute. Most importantly, note that a violation of the statute usually (under court decisions) leads to the permit or zoning approval in question being granted as it was applied for, the courts do not send the case back to the municipality for it to redo in compliance with the statute. Suggested Actions: Municipalities should examine the leases they have with cell companies, to see if backup power supplies (batteries or generators) can be installed without municipal approval, especially as to locations where this would be a concern. Municipalities should be prepared to respond promptly to the various types of local approvals (zoning, building codes, permits, environmental) which may be involved in likely new backup power installations at cell sites. They should make sure they comply with the Federal statute regarding zoning and other local regulations applicable to cell towers. In particular, in a contentious case, municipalities should make sure to involve people with knowledge of the statute and comply with its procedural requirements regarding the form of any denial, what has to be in it and tae need for a written record. We have a detailed paper on the Federal cell tower statute. If you would like a copy, either email me, or get a copy from our web site--go to www.varnumlaw.com/serviceGroups/cableTV/cellularwireless/ John Pestle Varnum, Riddering, Schmidt & Howlett LLP ADDRESS FOR REGULAR MAIL: Bridgewater Place PO Box 352 Grand Rapids, Michigan 49501-0352 ADDRESS FOR OVERNIGHT DELIVERY, UPS: Bridgewater Place 333 Bridge Street, N.W. Grand Rapids, Michigan 49504 phone 616-336-6000 ex 6725 direct 616-336-6725 fax 616-336-7000 email jwpestle @varnumlaw.com 2 1 4EX S 4 roP%( o f ulitaszt Z WIT *TO -r- kt°(L. r4.ap ' kV% ellikocticellesulT eft. meat_ stra riPUBLIC WORKS DEPARTMENT Ralph A. Qualls,Jr., Director SCgava'.% /01 i 9ss CITY HALL 10300 TORRE AVENUE-CUPERTINO,CA 95014-3266 CUPERTINO (408)777-3354-FAX(408) 777-3333 November 27, 2007 James Cosgrove 56 Bay Road Fairfax, CA 94930 Subject: T-Mobile Communication Site Lease at 10555 Mary Ave., Cupertino, CA 95014, Site No. SF04551A: Planned Enhancement of Equipment Dear Mr. Cosgrove: Attached are the acceptance of T-Mobile's planned enhancement of equipment of the subject site and a copy of an excerpt of the applicable lease agreement pertaining to the hours of access to do the work involved. As you will note, the agreement calls for the work to be accomplished during normal working hours or otherwise by arrangement with the City. Please call the City Service Center at(408) 777-3269 to schedule the work. Please contact me at glenngnu,cupertino.org or(408) 777-3244 if you have questions. ely, -; Glenn Goepfert Assistant Director of Public Works Attachments T —Mobile e G�e`( stick together T-Mobile, USA Attn: UMTS Froject-Ericsson VIA CERTIFIED U.S.MAIL RETURN RECEIPT REQUESTED October 21,2007 City of Cupertino Attn: Director of Public Works 10300 Torre Ave. Cupertino CA, 95014 Re: T-Mobile Communications Site Lease at 10555 Mary Ave Cupertino CA,95014. Site No.: SF04551A Dear Sir of Madam: Pursuant to the above referenced lease,we request your consent to enhance our equipment on the premises as more specifically described on the Site Upgrade Checklist attached.. To confirm your consent of the proposed activity,please sign and date the acceptance and acknowledgment below on the two originals enclosed,initial the first page of the attached checklist, and return one original with the initialed checklist in the enclosed return envelope or fax the approved letter and checklist to(415)480-1406. If you have any questions,please contact James Cosgrove at(415)233.3838. We thank you for your courtesy and cooperation. Sincerely, Tom Derkas, Senior Manager TMO Development Acknowledged,Accepted,and Agreed: Lessor: Gal..-- Name: 1foetid 40W T Title: 166T. D t t p Date: ■2►7 • a? Site Number: SF04551A Site Name: SF551 Hwy 85 4TH Consent Letter T-MOBILE SITE UPGRADE ACTIVITY Site Number: SF04551A Site Address: V2 10555 Mary Avenue Cupertino, CA 95014 Month of planned activity December-07 Check if Quanity required required Type of Adjustment/Equipment Coax cables, exchange (no additional coax cables) Antenna-exchange (no additional & I X 3 antennas) Equipment Cabinet-exchange (no additional X 2 cabinets) Remote Radio Unit- RRU Antenna - new Equipment Cabinet- New Coax cables, new Electric Service Meter Structural Modification T-1, phone line Lease Area Expansion Access Route Modification Tower Height Extension Antenna mount modification GPS Antenna Add Microwave feed Stealth screen Add/Mod Cable Tray Add/Mod Utility trench RET Cables FCC Signage Tower Lighting TMA add workmanlike manner. Title to LESSEE'S Facilities and any equipment placed on the PREMISES by worlflm property of LESSEE LESSEE shall be held by LESSEE. All of LESSEE'S all LESSEE' Facilities n t its sole expense on or • and are not fixtures. LESSEE has the right to remove before the expiration or termination of this Lease. 3. At no charge to LESSEE, CITY shall provide access to theda ek dtuoin LESSEE,LESSEE'S employees, agents, contractors and subcontractors with CITY. Not withstanding the wowhours and on other days and times by special arrangement foregoing, in the event of an emergency,Lessee Tr aye access tot e PRE . SES at all hours, seven (7) days a week. Twenty-four hour emergency access is available through County Communications. ( ) Y ingress and egress from the PREMISES, and CITY represents and warrants that it has full rights of ingr _ hereby grants such rights to LESSEE to the extent required to construct,rights shall not cause install and undue operate LESSEE's Facilities on the PREMISES. LESSEE. s exercises of CITY'S adjoining Site. inconvenience to CITY,nor shall it compromise the security 4. CITY shall maintain all access roadways from nearest responsible for maintaining roadway to the PREMISES in a manner sufficient to allow access. CITY shall n damage caused by LESSEE or LESSEE'S agents or such roadways,( ESSEE or LESSEE'S agents or assigns cause any such damage,LESSEE shall agents or assigns. If promptly repair same. • 5. LESSEE shall have the right to install utilities,ut not limited to pece, nd of improve the present utilities on or near the PREMISES (including, approval l not installation be emergency back-up power). Subject to CITY'e approval ht to place utilities on(or to bring utilities across) unreasonably withheld,LESSEE shall have the g p CITY'S Property in order to service the PREMISES and LESSEE's.Facilities. 6. LESSEE shall fully and promptly pay for all utilities furnished to the PREMISES for the use, operation and maintenance of LESSEE'S Facilities. • III. RENT A. BASIC RENT 1. Upon the Commencement Date, LESSEE shall pay to CITY,it Date rent,the es sum of one thousand eight hundred dollars ($1,800.00) per month.first day of the the prorated Rent for the first day of a calendar month,LESSEE may p y. LESSEE shall pay the remainder of the calendar month in which the Term th�cept that payment�shall be prorated for a full month's rent on the first day of each calendar the final fractional month of this Lease, or if this Lease is terminated before the expiration of any month for which Rent should have been paid. 2. th These amounts will be due and payable on or before the first day of Finance, each ty of during the term of this Lease. The rent will be paid in advance to the Department Bob Rizzo From: Terry Greene Sent: Wednesday, September 11, 2002 1:12 PM To: Bob Rizzo Cc: Ralph Qualls Subject: RE: Redwood Tree/Corp Yard Bob, in light of the fact that "we", the City, are requiring Nextel to plant a 35 ft. tree to mask their antenna, on our property, it would be improper to charge them for the tree, especially if they wanted to use one that we were going to dispose of in the first place. So.... Lets suggest to them that they can have one of our trees, but they must take it out and move it at their expense, and they must do so without causing any damage to the existing trees and ground cover adjacent to the tree. This arrangement should probably occur, at least at first, between the City and Ne:del. Can you contact someone there to initiate a discussion? Terry Original Message From: Bob Rizzo Sent: Wednesday,September 11,2002 7:07 AM To: Terry Greene Subject: RE: Redwood Tree/Corp Yard Terry, I suggest you talk to the Planning Dept, Colin Jung he can explain why they required a 35'tree to be planted in the rear of the Corp Yard next to the sound wall. In my opinion it is not needed. Bob -----Original Message----- From: Terry Greene Sent: Tuesday,September 10,2002 3:48 PM To: Bob Rizzo Cc: David Marks; Ralph Qualls Subject: RE: Redwood Tree/Corp Yard Bob, a few questions: • who or what agency imposed the tree masking requirement on the Nextel antenna? • does Nextel already have an agreement of an■r kind with the City regarding the antenna? if yes, what kind? I suspect we need an agreement to sell the tree to Nextel. We'll need some protective clauses in case of an accident and we'll also need a means to spell out some of our expectations in the actual removal, such as protecting the existing ground cover, the trees, the curt) and sidewalk, etc. I also think we'll need to have the agreement, or at least the concept, approved in advance by Council. Lets talk with Dave, Ralph and Chuck to see if we should ask them to make a proposal to us. The tree mover may be the one who makes the offer, but it should be through Nextel. We should not try to deal directly with Ted until an agreement with Nextel is in place. Original Message----- From: Bob Rizzo Sent: Monday,September 09,2002 11:37 AM To: Terry Greene Cc Ralph Qualls Subject: Redwood Tree/Corp Yard Terry, I would be willing to contact Nextel to inform them that the city would be willing to sell to them one of the large redwood trees next to the library. What we need to tell them is our selling price. I don't know how much 1 a 30 ft plus redwood cost. What I'm suggesting is to meeting again with Ted from the Tree Movers, who are contracted to move an install a tree for Nextel, to negotiate a selling price. Let me know if you want to proceed this way. Bob 2 09/09/02 17:07 T24087773333 C]:TY CUPERTINO --- Service Center al 001/006 City of Cupertino 10300 Torre Ave. Cupertino,CA O5014 Fax To: it C.kA.eil D1 19' F► P.ce From CO I U _ Fa c • 2..-7 2-76 —2- j pate: ` i 2 , Phone:: y� Pbo4e: 7 7 —2 2 Re: / i&T PCS/�• `i ' e fTY117' e: (Including this cover page) • ) rgsnt ^or Review ❑Please Comment El Pleas Reply ❑Please Recycle • Comments: Mil chap T NLI i c Works/sfeiru Ce-myn ee, K.A+ C"4\ 1N4- ,O a1\ ,set �+1s`�e off- Ip-e,,; • . 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CITY OF CUPERTINO To: Building Division %it/ From: Bob Rizzo, Service Center Manager - Date: October 2, 2002 Re: Nextel Tower Plan Check—Comments After review of submitted plans for the Nextel,tower construction at the City's Service Center my comments follows: 1.) Sheet E-5, Specify "Directional Boring " only for this project. Do not allow any trenching within the boundaries of the Service Center/Corporation Yard. 2.) All splice boxes are to be "traffic rated". If you need additional information, please contact me. C/: Ron Silva, Public Works Supervisor File SC Nextel .� CITY OF CUPERJINO To: Building Division From: Bob Rizzo, Service Center Manager Date: October 2, 2002 Re: Nextel Tower Plan Check—Comments After review of submitted plans for the Nextel tower construction at the City's Service Center my comments follows: 1.) Sheet E-5, Specify "Directional Boring " only for this project. Do not allow any trenching within the boundaries of the Service Center/ Corporation Yard. 2.) All splice boxes are to be "traffic rated". If you need additional information, please contact me. Ron Silva, Public Works Supervisor 7" File SC Nextel J C�O�°p✓ a a, C. .nunity Development Department 10300 Torre Avenue Cupertino,CA 95014 CITY OF Telephone(408)777-3308 CU PEVINO Fax(408 777-3333 Planning Division January 16, 2002 Mr. Ashraf Rageh Nextel of California 1255 Treat Blvd., Suite 800 Walnut Creek, CA 94596 RE: construction Nextel/MetroPCS Treepole, Cupertino Service Center, 10555 Mary Ave. Aush: It has been awhile since we talked about this project. I understand your construction team is getting started on this treepole, so it is a great time to review some things about the approval. I recently visited the Service Center to inform them about the project and the Community Development Department's expectations. 1. Before your building contractor and subcontractors visit the project site, they must make arrangements in advance with the Service Center Manager, Bob Rizzo, (408) 777-3269. Upon arrival they must check into the onsite Service Center office before driving into the corporation yard. 2. You will need to apply for a building permit. This will be reviewed by planning, building, public works engineering and the service center. 3. Your building plans should include a landscape & irrigation plan with the following items: a. Two, 24" boxed redwoods planted at the southwest corner of the property. The Service Center told me it has a waterline that runs along the southern property line that you can use for irrigation. b. A 35-foot tall tree planted near the treepole as shown on the approved plans. The tree should be irrigated as well. c. Planting and irrigation of vines placed next to the soundwall weepholes. You will need to design a"construction yard-proof' box to protect the vine plantings. The water line along the northern property line has inadequate water pressure for irrigation and will need to be upgraded. Give me a call if you have any questions. (408) 777-3257. Sincerely, Colin Jun Senior Planner Encl: approval documents, file no. 12-U-00(M) Cc: Bob Rizzo, Carmen Lynaugh Printed on Recycled Paper Bob Rizzo From: Carmen Lynaugh Sent: Thursday, January 10, 2002 2:22 PM To: Bob Rizzo Cc: Ralph Qualls Subject: RE: Nextel Communications Tower Bob Nextel's lease allows for the sublease and the City Council has approved the sublease to Metro PCS in November. The sublease did not make the lease area any larger, the second stied will fit within the Nextel original area. Nextel is ultimately responsible for everything even with this sublease. As for the question of the Redwood tree this is a requirement of the Planning Commission. Carmen Original Message----- From: Bob Rizzo Sent: Thursday,January 10,2002 1:48 PM To: Ralph Qualls;Carmen Lynaugh Subject: Nextel Communications Tower Ralph &Carmen, I just meet with Colin Jung regarding the recent revision to the proposed Nextel and Metro PCS communication tower to be installed at the Corporation Yard. In the proposed layout Nextel is planning to install two(2)equipment sheds plus the antenna tower. It is my understanding that we only have an agreement with one company Nextel. So the question is does the agreement allow Nextel to sub-lease addition space to another company? If not we could be getting another monthly check for lease of the Corp Yard. Reviewing the proposed site plan everything is ok but the installation of the specified large tree at the northeast corner of the site could be a problem.. How can they plant a 35' Redwood tree in this area? Bob 1 10300 Tone Avenue ��f•••+++ Cupertino,CA 95014 (408)777-3308 CITY OF FAX(408)777-3333 CUPERJINO Community Development Department September 25, 2001 Mr. Ashraf Rageh Nextel of California 1255 Treat Blvd., Suite 800 Walnut Creek, CA 94596 SUBJECT: PLANNING COMMISSION ACTION LE I I ER— 12-U-00(M) This letter confirms the decision of the Planning Commission, given at the meeting of September 25, 2001, approving a use permit modification to delete the requirement to remove an existing antenna monopole (Pac Bell Wireless)and allow co-location on an approved antenna"treepole" (Nextel)with a different wireless company, according to Planning Commission Resolution No. 6110. Please be aware that this modification is approved for a period of two years effective September 24, 2001 and expiring on September 24,2003. Also note that an appeal of this decision can be made within 14 calendar days of the decision. If this occurs,you will be notified of a public hearing,which will be scheduled before the City Council. Sincerely, Colin J g Community Development Department Enclosure: Resolution No. 6110 g:/planning/post hearing/actionletterl2u00(m) Printed on Recycled Paper 12-U-00(M) CITY OF CUPERTINO 10300 Torre Avenue Cupertino, California 95014 RESOLUTIC)N NO. 6110 OF THE PLANNING COMMISSION OF THE CITY OF CUPERTINO APPROVING MODIFICATIONS TO A USE PERMIT TO: 1) DELETE THE REQUIREMENT TO DEMOLISH AN EXISTING 40-FOOT TALL PERSONAL COMMUNICATIONS SERVICES MONOPOLE AND RELOCATE ITS ANTENNAE, AND 2)MODIFY AN APPROVED 60-FOOT TALL TREE POLE THAT HOSTS 12, 4-FOOT LONG PANEL ANTENNAE AT 52 FEET AND THREE PANEL ANTENNAE AT 60 FEET IN HEIGHT, A 10' X 20' X 10' BASE EQUIPMENT SHELTER, AND 9' X 13' EQUIPMENT PAD AT 10555 MARY AVENUE SECTION I: FINDINGS WHEREAS, the Planning Commission of the City of Cupertino received an application for a Use Permit, as described in Section II. of this Resolution; and WHEREAS,the necessary public notices have been given in accordance with the Procedural Ordinance of the City of Cupertino, and the Planning Commission has held one or more public hearings on this matter; and WHEREAS, the applicant has met the burden of proof required to support said application; and has satisfied the following requirements: 1) The proposed use, at the proposed location, will not be detrimental or injurious to property or improvements in the vicinity, and will not be detrimental to the public health, safety, general welfare, or convenience; 2) The proposed use will be located and conducted in a manner in accord with the Cupertino Comprehensive General Plan and the purpose of this title. NOW, THEREFORE,BE IT RESOLVED: That after careful consideration of maps, facts, exhibits, testimony and other evidence submitted in this matter, the application for Use Permit is hereby recommended for approval, subject to the conditions which are enumerated in this Resolution beginning on Page 2 thereof; and That the subconclusions upon which the findings and conditions specified in this resolution are based and contained in the public hearing record concerning Application No. 12-U-00(M) as Set forth in the Minutes of the Planning Commission Meeting of September 10, 2001 and are incorporated by reference as though fully set forth herein. Resolution No. 6110 12-U-00(M) September 10, 2001 Page-2- SECTION II: PROJECT DESCRIPTION Application No.: 12-U-00(M) Applicant: Nextel of California,Inc. Property Owner: City of Cupertino Location: 10555 Mary Avenue SECTION III: CONDITIONS ADMINISTERED BY THE COMMUNITY DEVELOPMENT DEPT. 1. APPROVED EXHIBITS Approval is based on Exhibits titled: "HWY 280/85 MARY AVE., CA-2151 B", consisting of 3 sheets labeled T-1 and A-1 dated 7/23/01, and C-1 dated 4/18/00, except as may be amended by the conditions contained in this resolution. 2. RELATIONSHIP OF PERMIT APPROVAL TO OTHER APPROVALS This use permit approval modifies and supersedes Planning Commission Resolution No. 6049 adopted on August 14, 2000. 3. CO-LOCATION OF ANTENNAE The use permit is for two sets of antennae co-located on the same tree pole. In the event a wireless carrier elects to remove its antennae from the mast, the mast owner shall make the mast available to other wireless carriers for antenna location subject to City approval. The co-location agreement shall be at market rates with reasonable compensation to the mast owner. 4. ABANDONMENT If after installation, the aerial is not used for its permitted purpose for a continuous period of 18 months, said aerial and associated facilities shall be removed. The applicant shall bear the entire cost of demolition. 5. EXPIRATION DATE This use permit shall expire five (5) years after the effective date of the permit. The applicant may apply for a renewal of the use permit at which time the Planning Commission may review the state of wireless communication technologies to determine if the aerial facility can be reduced in height or size. 6. TREE POLE APPEARANCE AND MAINTENANCE The applicant shall use a sufficient number of artificial branches to obscure the appearance of the panel antennae and any associated mounting framework. Panel antennae mounted away from the mast shall be painted to match the green foliage of the artificial branches. The mast and any panel antennae mounted close to the mast shall be painted brown to mimic a tree trunk. The applicant shall perform regular maintenance of the permitted tree pole to maintain its appearance and obscure the panel antennae from public view. Resolution No. 6110 12-U-00(M) September 10, 2001 Page-3- 7. LANDSCAPE SCREENING The applicant shall work with Community Development staff to provide additional onsite landscape screening near the pole and at the southwest corner of the Service Center where there is visibility to the adjacent residences. The applicant shall plant a 35-foot tall tree near the tree pole. Location and species are subject to the approval of the Community Development Director. Vines shall be planted and irrigated near the sound wall weep holes. In addition two 24-inch boxed Coastal Redwood trees shall be planted and irrigated at the southwest corner of the property. 8. TREEPOLE DESIGN FOR FUTURE CO-LOCATION OF ANTENNA The applicant shall design and construct the tree pole to accommodate a future co-location of antennae at a subordinate height to the approved sets of antennae. PASSED AND ADOPTED this 10th day of September 2001, at a Regular Meeting of the Planning Commission of the City of Cupertino, State of California,by the following roll call vote: AYES: COMMISSIONERS: Corr, Patnoe, Chen, Auerbach and Chairperson Kwok NOES: COMMISSIONERS: ABSTAIN: COMMISSIONERS: ABSENT: COMMISSIONERS: ATTEST: APPROVED: /s/Steve Piasecki /s/Patrick Kwok Steve Piasecki Patrick Kwok, Chair Director of Community Development Cupertino Planning Commission g:/planning/pdrepordres/12u00(M) Non Jul 23 13:21 30 2001 ■ C) Z D ra Al( „:. �� _ _ U IIIYIY MI C e /a /0 Z pO N D r m z =< Z Hi (1) Mil ;MI X Z c w 2 R. egg N'g§ -o CD � ...4 >0 m. l 1 0 _...... q C) N Pi —I N 9 D U U > N n ° 0 V) 0 o........ .... .... .. .. . .. .. .. .. .. . ... .... :_.. \,) , .it --1 1 Q ri 'i m rn .'�. N 2� °6 C .. ! m pg -1 E 9 K ›- �o CP n m z > < ,.., .,.S i 5 -.< q N V G1 i C > u O ®` y �° � c h OcF + + > o = wg � D ®. p. * E2 8 - Q p. ill j 1, r- i"," V 12=1‹ ..■. —< , o D y O 0,>,„. .. 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SA (925)RAMON, CALIFORNIA 945 925) 887-3386 WALNUT CREEK, CA 94596 g cZi1 g o 8 y OFFICE: (925) 260-2300 w + FAX: (925) 279-2861 F rt iC WORK\2003\2003.14\2003-14-A1.tlwg Non Jul 23 13'45 27 2001 • 1 RP o z gV n 5♦ m44 E. a A oA S� W gS ��--rr�� Z N ! FP M ---- v ii ol AO \ z KP . �_ • •.�. '.-\ ; „ \ v \ r I i� i } \ �.� 1 i tl— g Noa - • ` \►Ins AP • • • • \`` � ` \ wa F \ m!L \\\S ORAL\\\ •,�\� \ill'_ \\ \ \ \ .\ \ \x 1\ \ ��' \\1 k t ji)jr_olr■,,.;ail )K 1 . , i . `ter^ — ` . i Y U� \ RP\ \ \ \ \ o i ° Xs ° 4 _. -...... z E s .� ' 3.13 § 1-.1 I \ \ \ \ `.... ,' ::*N / '-9 s V f!4`. , i 3 ---- !11 II it Iti`%! - -X4--0= , ,ill it\\�\-g ......-.,-- .._..... _..V_.-.� ---• __ -nrn CU ril 4P t aIll , AZ;1 ci 4 \ -41k:. .:. 1,, __)i. i CI gA. 113 I Sa. "Iiiii:ISIIH'"1. t \ ft/ 13 e ,,- .N., , .,-A . x i cost iip r../.., ,,, ,,. ,....,;.\\ 0 N 4 to r- \ • > E. r ' 1 i 0 Si il ‘-\17'-- ----V- . 6 \ P ii R5 is.1 • Ea i /t\ I IP Iii i C7 z z N DD z '�Fi ama Z vm� o n W:!I o. M O 1 wmPm o 'D -< y m m o g " HC7 w ao =C Z D D kiPa� r o $$a mnw �� 25m�o N o — s� g s N $ R E F Q P corn 25 ►�■ A H m rIIIII . m co RESOLUTION NO. 00-184 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO AUTHORIZING EXECUTION OF ANTENNA SITE LEASE AGREEMENT BETWEEN THE CITY OF CUPERTINO AND NEXTEL OF CALIFORNIA, INC., A DELAWARE CORPORATION, dba NEXTEL COMMUNICATIONS WHEREAS, there has been presented to the City Council an Antenna Site Lease Agreement for the lease of facilities located at the Cupertino Service Center, 10555 South Mary Avenue; and WHEREAS, the provisions, terms, and conditions of the aforementioned agreement have been reviewed and approved by the City Attorney and the Director of Public Works. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Cupertino hereby authorizes the Mayor and the City Clerk to execute said agreement on behalf of the City of Cupertino. PASSED AND ADOPTED at a regular meeting of the City Council of the City of Cupertino this 19th day of June, 2000,by the following vote: Vote Members of the City Council AYES: Burnett, Chang, James, Lowenthal, ,Statton NOES: None ABSENT: None ABSTAIN: None ATTEST: APPROVED: /s/Kimberly Smith /s/John Statton City Clerk Mayor, City of Cupertino permits, building permits, zoning and planning`requirements, and approvals from various governmental agencies and bodies regulating water, sewer, and any other utility or improvement on the Site. 4. LESSEE shall provide required bonds or other security securing completion of any new structures to be constructed upon the Site,pursuant to section I(B)(5) of this Lease, and shall furnish CITY, care of the Public Works Department; with evidence of said security prior to undertaking any such construction on the PREMISES. 5. Prior to any work being conducted upon the Premises, LESSEE shall have provided to the CITY a bond or Certificate of Deposit as a security deposit in the amount of ten thousand dollars ($10,000.00) to cover the costs for the removal of LESSEE's equipment in and upon the PREMISES and any repairs that may be required to the PREMISES which are the responsibility of the LESSEE to repair under this lease. The CITY shall have the right to draw against the deposit in the event of a default by LESSEE or to cover the costs for the removal of the encroachment and any repairs that may be required to the PREMISES in the event that LESSEE fails to meet and fully perform any of its obligations hereunder. Within ten days of receipt of written notice from the CITY, LESSEE shall renew or replace such sums of money as shall bring the security deposit current. No release of the bond or certificate of deposit held as a security deposit shall be made except upon approval of the CITY, in accordance with California law. LESSEE agrees that the bond or certificate of deposit shall be held in full force and effect for the Term of this Agreement. The Security Deposit shall be released by the CITY upon completion of the removal of the encroachment and any repairs necessary to restore the PREMISES to their original condition as of the Commencement Date of the lease excepting reasonable wear and tear beyond the control or without the fault or neglect of the Lessee. The deposit shall be released thirty (30) days after the CITY Engineer's inspection and acceptance of the work. 6. Once any approved work of improvement is begun, LESSEE shall diligently prosecute completion of said work or construction. All work shall be performed in a good and workmanlike manner, and shall substantially comply with plans and specifications approved by CITY and as required by this Lease. C. SOIL CONDITIONS CITY makes no covenants or warranties respecting the condition of the soil or subsoil or any other condition of the PREMISES that might affect LESSEE's ability to construct the monopole antenna upon the PREMISES. D. UTILITY INSTALLATION ACCESS CITY grants to LESSEE the right to install utilities, for the purpose of serving the PREMISES only,which may be, in CITY's sole opinion, reasonably required. 2 Antenna Site Lease Agreement between the CITY of Cupertino and Nextel of California;Inc., a Delaware Corporation, d/b/a Nextel Communications This Antenna Site Lease Agreement("Lease") is executed by and between the CITY of Cupertino, a municipal corporation, hereinafter called"CITY" and Nextel of California, Inc., a Delaware corporation, d/b/a Nextel Communications, hereinafter called"LESSEE." I. DEMISED PREMISES CITY hereby leases and LESSEE leases from CITY a portion of that certain real property situated in the CITY of Cupertino, State of California, commonly known as Cupertino Service Center("Site") described and delineated as specifically shown on Exhibit A attached hereto, consisting of approximately six hundred (600) square feet of land. Said real property is hereinafter called the"PREMISES" and is described in Exhibit B attached hereto. A. PERMITTED USE The PREMISES may be used by LESSEE for any lawful activity in connection with the provision of mobile/wireless communication services, including without limitation, the transmission and the reception of radio communication signals on various frequencies and the construction,maintenance and operation of related communication facilities. LESSEE shall not use the PREMISES for any activity or in any manner which would tend to lower the character of the PREMISES, or in such a manner as to create any nuisance which disturbs, interferes with, or annoys any other neighboring person or entity. B. CONSTRUCTED IMPROVEMENTS It is contemplated that LESSEE shall construct upon the Premises a telecommunications facility which shall consist of a ten foot by twenty foot equipment shelter in which Lessee shall place its communications equipment. ,Before any work of construction, alteration,or repair is commenced on the PREMISES, LESSEE shall comply with all of the following conditions and provisions unless CITY's written waiver is first obtained: 1. All new structures shall first comply with CITY's applicable development standards and review process,including review and approval of required conditional use permits by the Planning Commission or CITY Council as appropriate. 2. LESSEE shall notify CITY in writing of LESSEE's intention to commence any work of improvements at least five (5)working days prior to commencement of such work. The notice shall specify the approximate location and nature of the intended improvements. CITY shall have the right to post and maintain on the PREMISES any notices of non-responsibility provided for under applicable law, and to inspect the PREMISES in relation to compliance with this Lease, other permits or the construction at all reasonable times. 3. LESSEE shall secure and deliver to CITY, care of the Public Works Department, adequate evidence of compliance with all applicable building codes, ordinances, regulations, and requirements for all permits and approvals,including but not restricted to grading 1 ORIGINAL condition which existed on the Commencement Date, reasonable wear and tear and damages beyond the control or without the fault or neglect of LESSEE excepted. If LESSEE fails to remove the Facilities within thirty(30) days of the termination or expiration of this LEASE, CITY may remove and store the Facilities at LESSEE's sole cost and expense. If LESSEE does not claim the Facilities within thirty(30) days following said removal, and provided that CITY has given LESSEE and any third party financing entity thirty(30) days prior written notice,the Facilities shall be deemed abandoned and City May dispose of the Facilities. LESSEE shall notify CITY of the name and address of the third party financing entity for notice purposes herein and the CITY will be notified of any changes with respect to said entity and its address. LESSEE's obligation to observe and perform the covenants of this paragraph shall survive the end of this Lease. C. LIEN RIGHTS CITYwaives any lien rights it may have concerning the Facilities which are deemed LESSEE's personal property and not fixtures, and LESSEE has the right to remove the same at any time without CITY consent. CITYacknowledges that LESSEE has entered into a financing arrangement including promissory notes and financial and security agreements for the financing of the Facilities (the"Collateral")with a third party financing entity(and may in the future enter into additional financing arrangements with other financing entities). In connection therewith, CITY(i) consents to the installation of the Collateral; (ii) disclaims any interest in the Collateral, as fixtures or otherwise; and (iii) agrees that the Collateral shall be exempt from execution, foreclosure, sale, levy, attachment, or distress for any rent due or to become due and that such Collateral may be removed at any time without recourse to legal proceedings, except as when deemed abandoned pursuant to Section II,Paragraph B of this Lease. D. ACCESS TO IMPROVEMENTS 1. LESSEE shall have the right (but not the obligation) at any time following the full execution of this Lease and prior to the Commencement Date, to enter the PREMISES for the purpose of making necessary inspections and engineering surveys (and soil tests where applicable) and other reasonably necessary tests (hereinafter singularly and collectively referred to as"Tests") to determine the suitability of the PREMISES for LESSEE's Facilities (as defined herein) and for the purpose of preparing for the construction of LESSEE's Facilities. During any Tests or pre- construction work,LESSEE will have insurance as set forth in Section IV,B, 4, Insurance. LESSEE will notify CITY of any proposed Tests or pre-construction work and will coordinate the scheduling of same with CITY. If LESSEE determines that the PREMISES are unsuitable for LESSEE's contemplated use, then LESSEE will notify CITY and this Lease will terminate. 2. LESSEE has the right to construct, maintain and operate on the PREMISES radio communication facilities, including but not limited to, radio frequency transmitting and receiving equipment,batteries, utility lines, transmission lines, radio frequency transmitting and receiving antennas and supporting structures and improvements (hereinafter referred to as "Facilities"). In connection therewith, LESSEE has the right to do all work reasonably necessary to prepare, add, maintain and alter the PREMISES for LESSEE's communications operations and to install utility lines and transmission lines connecting antennas to transmitters and receivers. All of LESSEE's construction and installation work shall be performed at LESSEE's sole cost and expense and in good 4 II. TERM OF LEASE A. COMMENCEMENT AND TERMINATION The term of this Lease (Term) shall be five (5)years commencing with the issuance of a local building permit allowing LESSEE to construct its mobile/wireless communications facilities on the PREMISES, or December 31, 2000, whichever is earlier(hereinafter referred to as"Commencement Date"). At the option of LESSEE, the term of this Lease may be renewed for successive five-year periods of time(hereinafter referred to as "Renewal Term"), but in no event, shall the Lease be extended for more than two Renewal Terms without the negotiation and execution of a new lease. Not withstanding the above,the CITY may terminate the lease prior to the expiration of its term or any Renewal Term,under the following circumstances: 1. If LESSEE is in material breach; 2. If the CITY is required by federal, state or local law to regain possession of the PREMISES; 3. If the CITY no longer utilizes the Site as a city facility. Upon a breach or default of any of the terms or obligations of this LEASE by LESSEE,the CITY shall serve written notice upon LESSEE reasonably describing the breach or default. If LESSEE fails to cure a monetary breach or default within thirty (30) days or a non-monetary breach within sixty (60) days this LEASE shall be subject to termination at the option of the CITY. The CITY shall be entitled to exercise all rights and remedies hereby reserved under this LEASE or made available under applicable laws. Termination of this LEASE by the CITY shall constitute the withdrawal of any consent or authorization of CITY for LESSEE to perform any construction or other work under this LEASE excepting only that work necessary to remove all equipment and to repair the PREMISES to their original condition existing at the Commencement Date of the LEASE,reasonable wear and tear beyond the control or without the fault or neglect of the LESSEE excepted. LESSEE may terminate this LEASE at any time during the term of this LEASE or any Renewal Term thereof upon thirty- (30) day's notice to the CITY with no further liability except as expressly provided herein. Upon such early termination by LESSEE,the CITY shall make a pro-rata refund to LESSEE of the rental fee paid to the CITY by LESSEE prorated to the date of CITY's acceptance of the removal of the LESSEE's FACILITIES. In the event of termination by either party, LESSEE shall immediately cease all work being performed under this LEASE, excepting only that work necessary for LESSEE to remove all equipment and repair the PREMISES in accordance with Section II(B). B. SURRENDER OF PREMISES LESSEE shall remove all LESSEE Facilities at its sole expense upon cancellation, expiration or earlier termination of this Lease. LESSEE shall repair any damage to the PREMISES caused by such removal and shall return the PREMISES to the 3 Cupertino, 10300 Torre Avenue, Cupertino, CA 95014,without prior demand and without any abatement, deduction or setoff. B. LATE PAYMENT CHARGE The rent shall be delinquent if not received by the close of the business day on the 10th of each calendar month. Such unpaid amounts of rent shall be subject to a late payment charge equal to ten percent(10%) of such unpaid amounts. This late payment charge is intended to compensate CITY for its additional administrative costs resulting from LESSEE's failure, and has been agreed upon by,CITY and LESSEE, after negotiation, as a reasonable estimate of the additional administrative costs which will be incurred by CITY as a result of LESSEE's failure; the actual cost being impossible to ascertain at the time of this Lease. This late payment will constitute liquidated damages due the CITY and will be paid to CITY together with such unpaid amounts. Acceptance of the payment of this late charge will not constitute a waiver by CITY of any default by LESSEE under this Lease. C. ADJUSTMENT OF RENT The rent in subparagraph A above will be adjusted according to this paragraph notwithstanding any provision in that subparagraph to the contrary: 1. Rent shall be increased on each anniversary of the Commencement Date by an amount equal to Five Percent(5%) of the rent for the previous year. IV. COVENANTS AND CONDITIONS A. CITY COVENANTS 1. Quiet Possession _LESSEE, paying the said rent and performing the covenants and Leases herein, shall and may at all times during the said term peaceably and quietly have,hold and enjoy the said PREMISES for the tenn thereof. 2. Assignment and Subleasing The parties agree that the expertise and experience of LESSEE are material considerations inducing the CITY to enter into this LEASE. LESSEE shall not assign, sell,Lease, merge, consolidate or transfer any interest in this LEASE nor the performance of any of LESSEE's obligations herein;,without prior written consent of the CITY, and any attempt by LESSEE to so assign this LEASE or any rights, duties or obligations arising herein shall be void and of no effect. The consent of the CITY will not be unreasonably withheld. Notwithstanding the foregoing, LESSEE shall have the right to assign its rights under this LEASE without the consent of the CITY to any of its subsidiaries or affiliates or its parent company or to any successor in interest or entity acquiring fifty-one percent(51%) or more of its stocks or assets, provided however, that LESSEE shall not be released from any obligation under this LEASE without the written consent of the CITY. Additionally,Lessee may assign, mortgage, pledge,hypothecate or otherwise transfer without consent its interest in this Lease to any financing entity, or agent on behalf of any financing entity to whom Lessee (i)has obligations for borrowed money or in respect of guaranties thereof, (ii)has obligations evidenced by bonds, debentures, notes or similar instruments, or (iii) has obligations under or with respect to letters of credit, bankers acceptances and similar facilities or in respect of guaranties thereof. 6 workmanlike manner. Title to LESSEE's Facilities and any equipment placed on the PREMISES by LESSEE shall be held by LESSEE. All of LESSEE's Facilities shall remain the property of LESSEE and are not fixtures. LESSEE has the right to remove all LESSEE's Facilities at its sole expense on or before the expiration or termination of this Lease. 3. At no charge to LESSEE, CITY shall provide access to the PREMISES to LESSEE,LESSEE's employees, agents, contractors and subcontractors five (5) days a week during working hours and on other days and times by special arrangement with CITY. Not withstanding the foregoing, in the event of an emergency,Lessee shall have access to the PREMISES at all hours, seven (7) days a week. Twenty-four hour emergency access is available through County Communications. CITY represents and warrants that it has full rights of ingress and egress from the PREMISES, and hereby grants such rights to LESSEE to the extent required to construct, maintain, install and operate LESSEE's Facilities on the PREMISES. LESSEE's exercises of such rights shall not cause undue inconvenience to CITY,nor shall it compromise the security of CITY's adjoining Site. 4. CITY shall maintain all access roadways from the nearest public roadway to the PREMISES in a manner sufficient to allow access. CITY shall be responsible for maintaining and repairing such roadways, at its sole expense, except for any damage caused by LESSEE or LESSEE's agents or assigns. If LESSEE or LESSEE's agents or assigns cause any such damage, LESSEE shall promptly repair same. 5. LESSEE shall have the right to install utilities, at LESSEE's expense, and to improve the present utilities on or near the PREMISES (including,but not limited to the installation of emergency back-up power). Subject to CITY's approval of the location, which approval shall not be unreasonably withheld, LESSEE shall have the right to place utilities on(or to bring utilities across) CITY's Property in order to service the PREMISES and LESSEE's Facilities. 6. LESSEE shall fully.and promptly pay for all utilities furnished to the PREMISES for the use, operation and maintenance of LESSEE's Facilities. III. RENT A. BASIC RENT 1. Upon the Commencement Date, LESSEE shall pay to CITY, as rent, the sum of one thousand eight hundred dollars ($1,800.00)per month. If the Commencement Date is other than the first day of a calendar month, LESSEE may pay.on the first day of the Term the prorated Rent for the remainder of the calendar month in which the Term commences, and thereafter, LESSEE shall pay a full month's rent on the first day of each calendar month, except that payment shall be prorated for the final fractional month of this Lease, or if this Lease is terminated before the expiration of any month for which Rent should have been paid. 2. These amounts will be due and payable on or before the first day of each month during the term of this Lease. The rent will be paid in advance to the Department of Finance, City of 5 liability, costs or expenses (including attorney's fees) arising as a result of any Hazardous Materials which exist within the property, common areas,building or PREMISES as a result of the activities or omission of LESSEE. 4. Indemnity a. LESSEE shall indemnify, defend, and hold harmless CITY, its employees, successors and assigns from and against any and all loss, cost, claim, liability, action, damage, injury to or death of any person(hereinafter referred to as "Claims"), including reasonable attorney's fees, occurring on the PREMISES and arising out of or connected with the negligence or willful misconduct of LESSEE, its agents or contractors, except for Claims arising out of the negligence or willful misconduct of CITY, its agents or contractors,breach of any duty or obligation by CITY under this Lease, or any condition relating to the PREMISES which LESSEE has no obligation to repair or maintain. b. CITY shall indemnify, defend, and hold harmless LESSEE, its employees, successors and assigns from and against any and all loss, cost, claim, liability, action, damage, injury to or death of any person (hereinafter referred to as "Claims"), including reasonable attorney's fees, arising out of or connected with negligence or willful misconduct of CITY, its agents or contractors, except for Claims arising out of the negligence or willful misconduct of LESSEE, its agents or contractors, violation of any law by LESSEE, its agents or contractors,breach of any duty or obligation by LESSEE under this Lease, or any condition relating to the PREMISES which CITY has no obligation to repair or maintain. c. The foregoing indemnity in a. and b. will survive the termination of this Lease. 5. Insurance Coverage LESSEE, at LESSEE's sole cost and expense, shall procure and maintain for the duration of this LEASE, including any extensions of this LEASE and during the period that LESSEE is performing any work upon the expiration or earlier termination of this LEASE to remove the equipment from CITY property, insurance, naming CITY as an additional insured, against claims for injuries to persons or damage to property which may arise from, or in connection with,the performance of the work or provision of SERVICES hereunder by LESSEE, its agents, representatives, employees or subcontractors. a. Minimum Scope of Insurance The coverage shall include Commercial General Liability together with Broad Form Comprehensive General Liability including explosion, collapse and underground; Automobile liability including Code 1 (any auto), Code 2 (owned autos), Code 8 (hired autos) and Code 9 (nonowned autos):, Workers' Compensation as required by the California Labor Code and Employers Liability insurance. b. Minimum Limits of Insurance LESSEE shall maintain limits no less than two million dollars ($2,000,000) combined single limit per occurrence for bodily injury,personal injury and property damage in Commercial General Liability; three million dollars ($3,000,000) in 8 3. Hazardous Waste CITY represents and warrants that any activity concerning Hazardous Materials on the Site and the PREMISES which CITY and/or its agents undertakes or permits to be undertaken by other Lessees, Licensees or Permittees of CITY will be done in accordance with all local, state and federal regulations governing the proper use, storage, transportation and disposal of said materials. In addition to the indemnity provided in section IVB4(b), CITY shall indemnify, defend,protect and hold LESSEE harmless from and against any and all claims, loss, proceedings, damages, causes of action, liability, costs or expenses (including attorney's fees) arising as a result of any Hazardous Materials which exist within the property, common areas,building or PREMISES as of the date first written above and any Hazardous Materials which are present within the property, common areas,building or PREMISES after said date which are not the result of the activities or omission of LESSEE. Notwithstanding the foregoing,nothing herein is intended to obligate LESSEE to bring the PREMISES into compliance with applicable requirements, ordinances and statutes unless such compliance is triggered by LESSEE's use, operations or LESSEE's Facilities constructed upon the PREMISES. Not withstanding any other provision of this Lease, LESSEE relies upon the representations stated herein as a material inducement for entering into this Lease. B. LESSEE COVENANTS 1. Compliance with Law LESSEE agrees, at its sole cost and expense, to comply with all the requirements, ordinances and statutes now in force, or which may hereafter be in force, of all municipal, county, state and federal authorities,pertaining to the said PREMISES, or the operations conducted thereon. 2. Taxes LESSEE agrees to pay before delinquency all taxes, adjustments, and fees assessed or levied upon LESSEE or the Leased PREMISES, including the land and any buildings, structures, machines, appliances or other property or improvements erected, installed or maintained by LESSEE or by reason of the business or other activities of LESSEE upon or in connection with the Leased PREMISES. LESSEE recognizes and agrees that this Lease may create a possessory interest subject to property taxation, and that LESSEE may be subject to further payment of property or possessory interest taxes without any compensatory reduction in rent due to the CITY. 3. Hazardous Waste LESSEE shall not bring any hazardous materials onto the PREMISES except for those contained in its back-up power batteries (lead-acid batteries) and common material used in telecommunications operations, e.g., cleaning solvents. LESSEE will treat all hazardous materials brought onto the PREMISES by it in accordance with all Federal, State and Local laws and regulations. In addition to the indemnity provided in section IVB4(a), LESSEE shall indemnify, defend,protect and hold CITY harmless from and against any and all claims, loss,proceedings, damages, causes of action, 7 the CITY unless otherwise specified herein, and to perform all repairs and replacements necessary to maintain and preserve the PREMISES in good order, in a safe,healthy and sanitary condition, in manner reasonably satisfactory to CITY.in compliance with all applicable regulations and laws. LESSEE agrees that CITY shall not be required to perform any maintenance, repairs, or services, or to assume any expense not specifically assumed herein, in connection with the PREMISES. Upon expiration of this Lease, LESSEE will surrender the PREMISES to CITY in good order and condition. 7. Nondiscrimination LESSEE agrees not to discriminate in any manner against any person or persons on account of race, marital status, sex,religious creed, color, ancestry, or national origin in LESSEE's use of the premises, including,but not limited to, the providing of goods, services, facilities, privileges, advantages and accommodations, and the obtaining and holding of employment. 8. Utility Costs LESSEE agrees to order,obtain and pay all utilities, including but not limited to water, gas, electricity,telephone, communications services, sanitary and drainage services, and service installation charges on any improvements made by LESSEE on the PREMISES. LESSEE shall also secure and utilize waste disposal services for the PREMISES in accordance with applicable local and state ordinances. All utilities on the Site shall be underground. In the event utilities to the PREMISES are furnished by the CITY and are measured by privately installed sub-meters, LESSEE shall pay as additional rent the cost of utility service provided to the PREMISES and attributable to LESSEE's use("Utility Charge"). LESSEE shall pay the estimated cost of the Utility Charge monthly in advance together with the monthly Rent. The parties estimate the Utility Charge at the Commencement Date to be Two Hundred Fifty Dollars ($250.00)per month. During the lease term, at CITY's request (which request shall not be more frequent than once every twelve months), LESSEE shall calculate the actual Utility Charge for the immediately preceding twelve (12)months based on the readings from the privately installed sub-meters at CITY's Property. If the actual Utility Charge varies from the estimated Utility Charges paid, the parties shall adjust the Utility Charge to reflect LESSEE's actual usage. 9. Waste, Damage or Destruction LESSEE agrees to give notice to CITY of any fire or damage that may occur on the leased PREMISES within ten(10) days of such fire or damage. LESSEE agrees not to commit or suffer to be committed any waste or injury or any public or private nuisance, to keep the PREMISES clean and clear of refuse and obstructions, and to dispose of all garbage, trash and rubbish in a manner reasonably satisfactory to the CITY. If the PREMISES is destroyed or damaged so as in LESSEE's judgment, to hinder its effective use of CITY's property, LESSEE may elect to terminate this Lease as of the date of the damage or destruction by so notifying CITY in writing no more than 30 days following the date of damage or destruction. In such event, all rights and obligations of the parties which do not survive the termination of this Lease shall cease as of the date of the damage or destruction. 10. Contingency It is understood by LESSEE and CITY that this Lease is fully contingent upon LESSEE obtaining final development approvals for construction of improvements on the leased land from the CITY. In the event that such governmental approvals are not obtained on or 10 aggregate for public liability and five hundred thousand dollars ($500,000) combined single limit per accident for bodily injury and property damage in Automobile Liability; and Workers' Compensation and Employers Liability limits of one million dollars ($1,000,000)per occurrence. c. Deductibles and Self-insured Retention Any deductibles or self-insured retention must be declared to, and approved by the CITY. d. Policy Provisions The following provisions must be included in the policies: (1.) The CITY of Cupertino, its officers, employees, agents and contractors are to be covered as additional insured regarding liability arising out of activities performed by or on behalf of,LESSEE,products and completed operations of LESSEE,premises owned, Leased or used by LESSEE, and vehicles owned,Leased,hired or borrowed by LESSEE. The coverage shall contain no special limitations on the scope of protection afforded to the CITY, its officers, employees, agents and contractors. (2.) LESSEE's insurance coverage shall be primary insurance as respects the CITY, its officers, employees, agents and contractors. Any insurance or self-insurance maintained by the CITY, its officers, employees, agents or contractors shall be excess of LESSEE's insurance and shall not contribute with it. (3.) Any failure to comply with reporting provisions of the policies by LESSEE shall not affect coverage provided the CITY, its officers, employees, agents or contractors. (4.) All policies required by this LEASE shall be endorsed to state that coverage shall not be suspended, voided, canceled or reduced in limits except after thirty(30) days prior written notice has been given to the CITY. e. Acceptability of Insurers The insurance carrier shall provide proof of their ratings. All ratings shall be a minimum of"Best A-7." f. Verification of Coverage The CITY shall provide all required forms. LESSEE shall furnish CITY with certificates of insurance and with all endorsements affecting coverage required by this LEASE. The certificates and endorsements for each policy are to be signed by a person authorized by that insurer to bind coverage on its behalf. g. Subcontractors LESSEE shall either include all subcontractors as insured under its policies or shall require all subcontractors to meet CITY's requirements listed above. 6. Maintenance and Repairs LESSEE agrees to assume full responsibility for the operation,maintenance, and repairs of the PREMISES throughout the term hereof without expenses to 9 principals of the parties so served upon personal service or forty-eight(48)hours after mailing in the manner required herein: CITY: Director of Public Works City of Cupertino 10300 Torre Avenue Cupertino, CA 95014 LESSEE: Nextel of California, Inc. 1255 Treat Blvd., Suite 800 Walnut Creek,CA 94596 Attention: Property Management with a copy to: Nextel Communications 2001 Edmund Halley Drive Reston,VA 20191-3436 Sixth Floor,Mail Stop 6E630 Site Leasing Services; Contracts Manager CITY or LESSEE may, from time to time, designate any other address for this purpose by written notice to the other party. 2. Entry and Inspection CITY reserves the right to enter the PREMISES for the purpose of viewing and ascertaining the condition of the same, or to protect its interests in the PREMISES, or to inspect the operations conducted thereon. In the event that such entry or inspection by CITY discloses that the PREMISES are not in a safe,healthy and sanitary condition, CITY shall have the right, after thirty(30) days written notice to LESSEE,to have any necessary maintenance work done for and at the expense of LESSEE and LESSEE hereby agrees to pay promptly and any all reasonable costs incurred by CITY in having such necessary maintenance work done in order to keep the PREMISES in a safe, healthy and sanitary condition. Failure to reimburse CITY for the reasonable costs incurred by CITY within thirty (30) days of completion of said maintenance work shall constitute a default of this Lease. 3. Holding Over. This Lease shall terminate without further notice at expiration of the term. Any holding over by LESSEE after expiration shall be under the same terms of this Lease, as may be amended, and shall not constitute a renewal or extension or give LESSEE any rights in or to the PREMISES except as otherwise expressly provided in this Lease. 4. Merger The voluntary or other surrender of this Lease by LESSEE, or a mutual cancellation thereof, shall not work a merger and shall, at the option of CITY,terminate all or any existing subleases or subtenancies or may, at the option of CITY, operate as an assignment to it of any or all such subleases or subtenancies. 12 before December 31, 2000, after due diligence by LESSEE, LESSEE shall have the right to terminate this agreement within 30 days by notifying CITY in writing. If terminated, LESSEE shall have no further obligation to pay rent or comply with any other provision of this Lease. 11. Interference with Communications LESSEE's facilities shall not disturb the communications configurations, equipment and frequency which exist on CITY's property on the Commencement Date (hereinafter referred to as "Pre-existing Communications"), and LESSEE's facilities shall comply with all non-interference rules of the Federal Communications Commission (FCC). CITY shall not permit the use of any portion of the Site in a way which interferes with the communications operations of LESSEE described in Paragraph I. A., above. Such interference with LESSEE's communications operations shall be deemed a material breach by CITY, and CITY shall have the responsibility to terminate said interference within a reasonable time of LESSEE's written notice to CITY. In the event any such interference does not cease within ten days time, the parties acknowledge that continuing interference will cause irreparable injury to LESSEE, and therefore, LESSEE shall have the right to terminate the Lease immediately upon notice to CITY. Notwithstanding the foregoing, Pre-existing Communications operating in the same manner as on the Commencement Date shall not be deemed interference. 12. Legal Proceedings LESSEE agrees that should it become necessary for CITY to commence legal proceedings to collect rent,recover possession, or enforce any other provision of this Lease, the prevailing party will be entitled to legal costs and expenses in connection therewith, including reasonable attorney's fees as determined by the court. The parties agree that the laws of the State of California shall be used in interpreting this Lease and will determine all rights and obligations hereunder, and it is agreed that this Lease is executed in Cupertino, CA. 13. Electromagnetic Fields LESSEE shall comply with all present and future laws, orders and regulations relating to Electromagnetic Fields (EMFs), and the American National Standards Institute (ANSI) standards. Without limiting the provision of LESSEE's indemnity contained herein,LESSEE, on behalf of itself and its successors and assigns, shall indemnify the CITY from and against all claims of personal injuries due to EMFs to the extent such personal injuries are caused by LESSEE's facilities on the Premises. C. RESTRICTIVE CONDITIONS 1. Administration and Notices CITY's agent for control and administration of this Lease shall be the Director of Public Works of the CITY of Cupertino, and any communication relative to the terms or conditions or any changes thereto or any notice or notices provided for by this Lease or by law to be given or served upon CITY may be given or served by certified letter deposited in the United States mails,postage prepaid, and addressed as indicated below,. Any notice or notices provided for by this Lease or by law to be given or served upon LESSEE may be given or served by depositing in the United States mails,postage prepaid, a certified letter addressed to said LESSEE at the PREMISES or at such other address designated in writing by LESSEE, or may be personally served upon them or any person hereafter authorized by them to receive such notice. Any notice or notices given or served as provided herein shall be effectual and binding for all purposes upon the 11 10. Captions. The captions of the various articles and paragraphs of this Lease are for convenience and ease of reference only and do not define, limit, augment, or describe the scope, content, or intent of this Lease or of any part of this Lease. 11. Entire Agreement This Lease contains the entire agreement between the parties. No promise, representation, warranty, or covenant not included in this Lease has been or is relied on by either party. Each party has relied on its own examination of this Lease, the counsel of its own advisors, and the warranties, representations, and covenants in the Lease itself. The failure or refusal of either party to inspect the PREMISES, to read the Lease or other documents, or to obtain legal or other advice relevant to this transaction constitutes a waiver of any objection, contention, or claim that might have been based on such reading, inspection, or advice. 12. Severability The invalidity or illegality of any provision of this Lease shall not affect the remainder of the Lease. 13. Successors Subject to the provisions of this Lease on assignment and subletting, each and all of the covenants and conditions of this Lease shall be binding on and shall inure to the benefit of the heirs, successors, executors, administrators, assigns, sublessees, tenants, subtenants, and personal representatives of the respective parties. IN WITNESS WHEREOF, this Lease agreement is executed by CITY, acting by and through the Mayor, and by LESSEE, acting by and through its lawfully authorized officers. APPROVED AS TO FO . City Attorney Charles Kilian CITY OF CUPERTINO BY TIT ' John Statton, Mayor NEXTEL OF CALIFORNIA, INC. BY ;%11 9 r,. TITLErlaa , Mark B. Nelson Vice President JUG„ ORIGINAL 5. Reservation of CITY Rights CITY hereby reserves all rights ,title and interest in any and all gas, oil, minerals and water beneath said Leased premises. CITY shall have the reasonable right to enter the PREMISES for the purpose of making repairs to or developing municipal services. CITY hereby reserves the right to grant and use such easements or establish and use such rights-of-way over, under, along and across the PREMISES for utilities, thoroughfares, or access as it may deem advisable for the public good. Provided, however, CITY shall not unreasonably interfere with LESSEE's use of the PREMISES and will reimburse LESSEE for physical damages, if any, to LESSEE's facilities located on the PREMISES resulting from CITY's exercising the rights retained in this paragraph. Such reimbursement may include a reduction in the annual rent proportionate to the amount of any physical damage as reasonably determined by CITY. CITY shall pay the costs of maintenance and repair of all CITY installations made pursuant to the rights reserved herein. All utilities shall be underground. 6. Time is of the Essence Time is of the essence of each and all of the terms and provisions of this Lease and this Lease shall inure to the benefit of and be binding upon the parties hereto and any successor of LESSEE as fully and to the same extent as though specifically mentioned in each instance, and all covenants, stipulations and agreements in this Lease shall extend to and bind any assigns or sublessees of LESSEE. 7. Waiver The waiver by CITY of any term, covenant, or condition herein contained shall not be deemed to be a waiver of such term, covenant or condition, or any subsequent breach of the same or any other terms, covenant or condition herein contained. The subsequent acceptance of rent hereunder by CITY shall not be deemed to be a waiver of any preceding breach by LESSEE of any term, covenant or condition of this Lease,regardless of CITY's knowledge of such preceding breach at the time of acceptance of such rent. Failure on the part of CITY to require or exact full and complete compliance with any of the covenants, conditions or agreements of this Lease shall not be construed as in any manner changing the terms hereof and shall not prevent CITY from enforcing any provision hereof. 8. Recordation LESSEE may, at its cost, record this Lease or a memorandum of this Lease. 9. Title. a. CITY warrants that it has full right,power, and authority to execute this Lease; CITY further warrants that LESSEE shall have quiet enjoyment of the PREMISES during the Term of this Lease or any Renewal Term. b. LESSEE has the right to obtain a title report or commitment for a Leasehold title policy from a title insurance company of its choice. If, in the opinion of LESSEE, such title report shows any defects of title or any liens or encumbrances which may adversely affect LESSEE's use of the PREMISES, LESSEE shall have the right to terminate this Lease immediately upon written notice to CITY. 13 EXHIBIT "A" CA-2151B/Hwy 280/87 • 10555 Mary Avenue Cupertino, CA 95014 APN: 3 26-06-052 AA. -+ NO. 1,j - l3tC NO at a pulut on the Nmsterly► lice of,that cortola 40 acro tract of lend cribs(' In the Deed from Lloyd L. Ldwisids, at ux, to Joe A. Nord, at oz dated February 8, 1945, recorded labruary 10, 1943 in Book 1243 0. 1t.; pigs • , Santa Clara County llsovrda, distant thereon South 0. OS' Seat 2320.4 feat iron so iron pips in the ceoterlins of Noaeetsad load; $ time* South 0" 03' Fast oleo= them Masterly lima of said 40 acre tract 32.09 foot to an iron pipe at the Southeesterlyr,corner thereof; rum g thane* South 89' 44' West along time Southerly line of said 40 acre tract 39.32 fee:' .o an iron pipe at the Souttwestsrly corner thereof; . --4 . thence North 0' 08' 30" Weise along the Westerly line of said 40 acre tsaet • 32.09 fssti • . • thence North 89' 44' Feat 659.34 feet to the point of tegismmia8. • 6 MO approximately 2.00 acres and icing a portion of the Soutbwust 1/4 o Ssetioa 11 Township 7 South, Range 7 Wast, l!. D. E. & T'0. Pa�.Y• . ..O• 2 • El94ii01 r at anoint on the Easterly lino of that certain 40 uara trout of lead • scribed in the Deed from Lloyd L. Edwards, et ax, to Joe A. Sorel, et us. dated February 8, 1945. recorded February 10, 1945, in look 1243 O. 1., page 2 , Scats Clara County Recordas, distant thereon South 0' 08' last 2464.4 fast from lea iron pipe in the centerline of Homestead Rood; •• • thence South 0' 08' Zest Aloof the Easterly lint of said 40 acre tract 56.00 ' set to the $orthmsstsrly corner of .lust certaia 2 sore tract of land dust is the Doled hoe Jos A. sores, it tiX, to H, Jakovieh, at ex, dated Tebrea y 18, 1948 in look 1569 O. 1,,, Pogo 37, Senn Clara County Soeorda; • • mg thence South $9' 44' West along the Norcbarly line of said 2 acre treat 59.34 feat to the )Turtbesstsriy corner thereof on the Westerly life of. . • said sere trace; .g thence Mirth 89' 44' iwae along said .na. 4 lino 56 feet; rune . 'thence North 89' 44' East And parallel with the Northerly limo of said 2 core. tract 09.33 feet to"the point of beginning. -•• , 'ISO approximately 0.83 scrap mud being a portion of 4he Southwest 1/4 of ire • . :1, Township 7 South, flange 2 West, K. D. S. 4 K. TWIN PASCSLS 1 and 2 all that portion thereof dileribli as Percale t and 2 the Deed fray K. Jekoviab, at ur,• to the Scats of California. recorded Amass 12,, 1964 in loot 6619, O. 2.,, Page 334, Santa Clara County lacords, and • aore particulary described as follows: .PARCEL Ohs:, . • -• at the Southuastorly corner of the 2.00'aare parcel of load eoeveyad 57,7.7.771; to K. • slrovich, at ma., by Deed recorded Psbruary 18, 2949 la lank 1569 of Oftic Pacords, page 37; L°,v` t • sloes the Southerly line of said parcel South 89' IS' 33" last 133.92 fest; _ right hooa ar f 1447.00 bears e t,Worth through 43" 4' 35'a21'�serve or: least. of 115,90 feat' . from a tasgeat that bears North 12' 16' 35" Wst, along a sue to A e- rL$hi the radius of 600,00 feet ,through as augur a f 7' 21' 30, say arc length • EXHIBIT "A" CA-2151B/Hwy 280/87 10555 Mary Avenue Cupertino, CA 95014 APN: 326-06-052 • of 17.0 feet to tbs Southerly line of the parcel of land co toeyad to the Stet* o California by Deed TscordQJ October 22, 1959 in look 4512 of Official Records peat 4791 aloes lest seta line. Borth 19' 1e.' 33" beet 91.69 fast to the Easterly line of tbs parcel of Lead conveyed to the State of California by D4ed tocvrdsd Demob. 1, 1960 is Book 4990 of Official Retards, pogo 436; t• • aloes last said lice. South 0' 52' 03" West 181.09 feet to the pout of -• . meat. •• . • 0.424 of as agree. mom or Iola. As to - 1 above, this coonN anrc it Mar nor the purposes of a ropoway and the ntor haroby rolsaeos and raliue;uish os to the greaten any and all abetter rights of access, appurtenant to rancor': rawiaina property, L sad to sa14 roomy. PARCEL 't CCt91XNC '. • at tba Southeasterly corner of the 2.00 acre parcel of land conveyed • to K. .1 • ob, at ux, by Dead recorded February 18, 1941 is Book 1569 of Of f ins Records, peg. 37; • t along the Southerly lino of said weal North 119' 15' 33" Vest 30.00 feet; - . - Myrth•0' 52' 31" fast 188.09 foot to,tiro line commit to the Undo* • now on! ••uaassly, of said K. Jackovle h, at um end of doe ion:i.. eft us; thence Allem list said lino South 59. 15' 33" East 30.00 fest. to CLs line common to tba ' • •Si nov or fosnarly, of said R. Jakovieh;•st-•ncr-aM of Noreen-L • • • . Vat , et si; t- - alone Let said line South 0` 52' 31" West 168.09 fast to the point of • • t. • •• • 1' • 0.130 of an aare, more or less. • ?bs and distaats$ mood in the shove dssariptioos are on the California Coon System, Zoo* 3. Multiply the ahors distsaosy by 1.0000493 to obtain =mama • el distances. OVA real EXHIBIT "B" CA-2151B/Hwy 280/87 i 10555 Mary Avenue • Cupertino, CA 95014 Gs APN: 326-06-052 ;;, a� Z z N _..._....._....._........_......__......................_._............_.__........__ / X (1.) ''Z; ti CIA cu d .. ..,. ,., _c:, .___ oti ' . ,., ---i . . o . f,) ,.. (1) 0 N Q a 00 _ \ . o cn 3 w — W 0 Pot CP V.:1 to 17 r.S es C., ,r i, 44,77\i ott ,, ( Date 2//00 INumber of pages including cover sheet CITY 'F CU PERTINO 1 TO: Cot_IA/ iu-e G FROM: Bob Rizzo 'i v'Plekviii ' • City of Cupertino 10555 Mary Ave. Cupertino, CA. 95014 Phone Phone (408) 777-3350 Fax Phone 7 7 7 33 e.3 Fax Phone (408) 777-3399 I CC: REMARKS: ❑ Urgent 1:14'or your review ❑ Reply ASAP ❑ Please Comment lac=ri/fr-uwe o /D2opv i d .-1 2 e Li r Tz)i- N sere e___ / ' -44-Ti w nr ' c c2.v lo ".24. . R j—r-o 41-4- D P 'T 5e t o k o i*c-z-'s /c:e::c?..49/2-1. 2e")-1!' C o4 S% 126-13 WOO 2.) r / � f &-Ql t-6/ S e--7yj fc-37L v, /►mac P l_as A-4,77 ,c ©2 5-41 v74 C2tc,z .A9y.2 _ " �‘e-- 7-12-e--2.4— s-X / °,6 k„, ��) 2 v ,bdx 7 . g6,1,.. TRANSMISSION VERIFICATION REPORT TIME : 08/31/2000 07:43 NAME : FAX . TEL : DATE,TIME 08/31 07:42 FAX NO. /NAME CITYQHALL DURATION 00:00:29 PAGE(S) 01 RESULT OK MODE STANDARD 08/30/00 12:59 '®'4087773333 CITY CUPERTINO >-■ Service Center ij001/003 Ciry o!Cuperina FAX Date: �' ,3 D 0 • Number of pad s inclu•ing cover sheet: imiros To: From: D\I) R.A-z.z_ip P(C A1(�� • Phone: Phone: 777- Fax phone: FAX phonee 77_1333 CC: 'Ni(.4r, - REMARKS: ❑ Urgent Q For your review Repiy ASAP ❑ Please comment 15 L iiS - irotD- " 1j1Jc11 free,_s �e ' A) i- ! kz. i O ar, S +c) '�l 1�' \ I ve� I r` fi cvc`-1 fo v r4 o cA r„v∎elk +' IcALf.gki a " v■ -�,o, tL.r`�"i Tl�G 1 fl° —* i �' . c r�a.�a ok Qltz osQ, re,N1 E'.k),r � `� rs 6.,54, 7}, w i�� VU a r fOr yam , 08/30/OU 12:59 224087773333 CITY CUPERTINO Service Center Z O02/CO3 Aus-25-2090 03;We FrorNEXTlil T-614 P.011/013 P-664 ----"- av &VW VO.ee1"Ui r4 Ashref Rageb ' Martel Comtnunications )255 Treat Boulevard,Suite 800 Walnut Creek, CA ;l4596 VArl Re: Site CA-2151113(Highway 280/85) Dear Mk I have located 6 different trees this would be appropriate for the mite and design conditions. These is es are available at Valley Crest Tree Company in Sunol. The criteria I am working with is as foUows. 1. Evergreen 2. 45'tall ultimately(should grow taller and that prune,otbecwise will be a long time to get to 45') 3. Pine tree like if possible 4. 48" box if available-5'x 5' planting space S. Tall as possible initially 6. Tough lad,hardy Nester growth preferred e I. Currently available My preferred choice would be: Pines ca narierasia-Canary Island Pine 48"box, 18'tall by 6'wide when installed, ;5040'ultimately,fart growth rate Other choices available: ` Pious pines--:Italian Stone Pine 48"box, 12'tan by 7'wide when installed 40-80'ultimately,moderate growth rate Cinnamomurn camphor;-Camphor Tree 45"box, 13'tall by 7'wide 50' ultimately,slow growth rate Quercus agrifblia--Coast Dive Oak 36"box, 12'tall by 5'wide 20-70'ultimately,fast growth ate if watered Ulmus parviful&a'Drake'-Evergreen,Elm 48"box, 14'tall by 8'wide 40-60'ultimately,that growth rate I understand the desire to plant as big a tree as possible immediately. I would, however, recommend planting a;man container sine; 15 gallon or 24" box. The smaller the tree is COOkt W5 a 9/h Ff( a IA•14 j"IS7 (c /2°29c-16c)° 08/30/00 13:00 $`4087773333 CITY CUPERTINO -f-.a Service Center (2003/003 Aug-25-2000 03:54pa Free-NEXTIL T-614 P.012/013 F-684 when planted,usually,the roots establish sooner and the tree grows faster and stronger. The roots have not been rastziceed and stunted by the edge of the container as long. I cannot guaranetoe which size tree will reach 415'first,but T would put my money on the smaller tree. If you have any questions„pleases call. Sincerely, Donald L.Wiblbo:g • • Pacific Gas and Electric Company 10900 North Blaney Avenue Cupertino, :A 95014 1-800/743-500 August 15, 2000 Cupertino City Yard 1055 Mary Avenue Cupertino, CA 95014 ATTN: Mr. Bob Rizzo Re: Transformer Replacement Dear Mr. Rizzo With regard to the transformer at the City Yard, should future loads exceed the load capacity of the transformer, after Nextel pulls electrical service from the transformer, PG&E will replace and upgrade the transformer at no cost to the city. This is a standard PG&E procedure. Should you require further information with this matter, I can be reached at (408) 725-3366 Sincerely, Dale Stephens Project Manager AUG-15-2000 13:50 PG&E DE ANZA AREA 3 P.01/01 ,P10,10/1 and Electric Company 10900 North Blaney Avenue Cupertino CA 95014 1-800/743-5000 Amoititt 15, 2000 . , ' 0 ,.. City Yard -ry Avenue '' •. CA 95014 111111 Bob Rizzo ft.,Aorsformer Replacement D400101t, Rizzo ,• , ,.,,,., , .-,rd to the transformer at the City Yard, should future loads exceed the =city of the transformer, after Nextel puns electrical service from the er, PG&E will replace and upgrade the transformer at no cost to the c.k. s is a standard PG&E procedure. ,you require further information with this matter, I can be reached at .1-..., (. ' ' f' r -3366 , •,,„;, ‘,. , • - ''' • ens anager • TOTAL P.01 i �: C, .nunity Development Department 10300 Torre Avenue CITY OF Cupertino, CA 95014 �U PE T1 I O Telephone(408) 777-3308 Fax (408 777-3333 Planning Division January 16, 2002 Mr. Ashraf Rageh < Nextel of California 1255 Treat Blvd., Suite 800 Walnut Creek, CA 94596 RE: Construction Nextel/MetroPCS Treepole, Cupertino Service Center, 10555 Mary Ave. Aush: It has been awhile since we talked about this project. I understand your construction team is getting started on this treepole, so it is a great time to review some things about the approval. I recently visited the Service Center to inform them about the project and the Community Development Department's expectations. 1. Before your building contractor and subcontractors visit the project site, they must make arrangements in advance with the Service Center Manager, Bob Rizzo, (408) 777-3269. Upon arrival they must check into the onsite Service Center office before driving into the corporation yard. 2. You will need to apply for a building permit. This will be reviewed by planning, building, public works engineering and the service center. 3. Your building plans should include a landscape & irrigation plan with the following items: a. Two, 24" boxed redwoods planted at the southwest corner of the property. The Service Center told me it has a waterline that runs alone the southern property line that you can use for irrigation. b. A 35-foot tall tree planted near the treepole as shown on the approved plans. The tree should be irrigated as well. c. Planting and irrigation of vines placed next to the soundwall vveepholes. You will need to design a"construction yard-proof box to protect the vine plantings. The water line along the northern property line has inadequate water pressure for irrigation and will need to be upgraded. Give me a call if you have any questions. (408) 777-3257. Sincerely, Colin Junes Senior Planner Encl: approval documents, file no. 12-U-00(M) Cc: Bob Rizzo, Carmen Lynaugh Panted on Recycled Paper CITY OF CUPERTINO 10300 Torre Avenue,Cupertino,California 95014 (408) 777-3308 To: Department Heads,Rick Kitson, Bob Rizzo From: Colin Jung, Senior Planner CS Date: February 10, 2003 C Subj: Review of Draft Wireless Master Plan Attached for your review is a copy of the draft Wireless Master Plan. The document articulates a long-term plan for the deployment, siting and design of wireless communications facilities throughout the community. Reviewers please note that the document suggests the USE! of private lands,public lands, such as parks and public rights-of-way, and the use of public utility structures. The document will be simultaneously reviewed by the City's Telecommunications Commission and the City's wireless master plan consultant, Kreines and Kreines. The document will also be reviewed later by wireless communications industry. I would appreciate any and all comments in writing by March 10, 2003. Thank you for your attention to this matter. City of Cupertino Wireless Master Plan Draft - February 5, 2003 • t r ; II 4,` Draft 2/5/03 Acknowledgements CITY COUNCIL Michael Chang, Mayor Sandra James,Vice Mayor Patrick Kwok Richard Lowenthal Dolly Sandoval PLANNING COMMISSION Charles Corr,Chairperson Angela Chen Taghi Saadati Gilbert Wong Vacancy TELECOMMUNICATIONS COMMISSION Salvatore Algeri, Chairperson Ernest Tsui Reginald Duhe David Eggleston L. T. Guttadauro STAFF David W. Knapp, City Manager Steve Piasecki, Director of Community Development Ciddy Wordell, City Planner Colin Jung,Senior Planner &Project Manager Peter Gilli,Senior Planner Ralph Qualls,Director of Public Works CONSULTANT Ted Kreines, Kreines & Kreines- Wireless Planning Consultants 1 Draft 2/5/03 Table of Contents Chapter 1. INTRODUCTION 3 Chapter 2. GOALS 4 Chapter 3. SUMMARY OF POLICIES 5 Chapter 4. BACKGROUND 7 Chapter 5. LOCATIONS 13 Chapter 6. SITING & DESIGN 17 Chapter 7. SAFETY 26 Chapter 8. MONITORING 29 Chapter 9. IMPLEMENTATION .. 30 Chapter 10. GLOSSARY OF TERMS 33 2 Draft 2/5/03 Chapter 1. Introduction Wireless telecommunications were first introduced in the region in the late 1970's. The first hand-held equipment or cell phones were very heavy, and service was unreliable and expensive. Consumer demand was small, but continued to grow with continual technological innovation that reduced the size and weight of phones, and improved the reliability and coverage of communications. Increased competition from new companies entering the market have helped drive down prices, making the phones and the cost of service more affordable for the general public. Rapid consumer acceptance and pervasive use of this communications technology in the last decade have also meant a commensurate proliferation of the personal wireless service facilities throughout this community and the country that is often typified by the rectangular-shaped antennae mounted in clusters on buildings, poles and towers. The rapid proliferation of these facilities present a unique challenge to Cupertino to balance the preservation of community aesthetics with the demands of wireless communications companies to provide increasing levels of service and coverage in a quickly changing technological environment. Many communities throughout the United States have reacted to this proliferation of personal wireless service facility applications by amending their zoning ordinances to allow such facilities or creating new ordinances to regulate their siting and design. The City of Cupertino took the later approach in 1996 by adopting an ordinance that specifically regulated the siting and design of personal wireless service facilities. Since then new facility proposals have been reviewed on a case by case basis by the City's Planning Commission with technical expertise provided by the Telecommunications Commission. By 1999, it had become increasingly clear to these City decisionmakers that the long-germ impact on the City's visual landscape through the growing accumulation of these facilities was not being addressed. While the community continues to embrace wireless communications, it will not do so at the cost of the community's appearance. The City Council has endorsed the preparation of a Wireless Master Plan and has provided funding for a consultant. The City has contracted with the consulting firm of Kreines and Kreines to provide technical expertise on this plan preparation. 3 Draft 2/5/03 • Chapter 2. Goals • Balance community aesthetics with the wireless companies needs for service and coverage by planning for well-sited and well-designed personal wireless service facilities that fit unobtrusively in the Cupertino environment. • Guide decisionmakers and City staff by providing a policy framework and design guidance as they make decisions about these facilities. • Educate the general public about personal wireless service facilities and the community's design expectations in order to improve their involvement and participation in the decisionmaking process. • Assist the wireless companies and their representatives with information that facilitates their facility deployment process. 4 Draft 2/5/03 Chapter 3. Summary of Policies Policy 4-1: Carriers should use the best available camouflage techniques to reduce the intrusive and obtrusive visual impacts of personal wireless service facilities to the extent possible. Policy 5-1 : Preferred locations for personal wireless service facilities are on existing buildings and structures. Policy 5-2 : Only unobtrusive personal wireless service facilities should be considered in residential neighborhoods. Policy 5-3 : Development of unobtrusive cell sites in surrounding communities shall be encouraged. Policy 6-1 :Personal wireless service facilities should be sited to avoid visually intrusive impacts as viewed from the public right-of-way and from residential neighborhoods. Policy 6-2 : Personal wireless service facilities should be appropriately scaled to fit harmoniously with the surrounding elements of the site and neighborhood. Policy 6-3 : Personal wireless service facilities should be compatible with their surroundings so that their shape, size, color, material, and texture blend with their surroundings. Policy 6-4: The City may consider reasonably accommodating a personal wireless service facility that does not meet the adopted siting and design guidelines, if the carrier can provide compensating visual benefits that improve the appearance of the community. Policy 7-1: The City should reserve the right to require applicants to prepare radiofrequency radiation assessments for personal wireless service facilities when the general public is in reasonably close proximity to such a facility and to determine compliance with FCC Guidelines. Policy 7-2 : If a network of residential-based personal wireless service facilities is proposed, a comprehensive RFR assessment should be done for all proposed sites. Policy 7-3 : When mechanical ventilation or power generators are proposed in personal wireless service facilities, the City should ascertain whether an acoustical analysis is necessary to determine compliance with the City's Noise Ordinance. Policy 8-1 : All personal wireless service facilities approved by the City will be conditioned with a permit expiration date to create opportunities for the City and 5 Draft 2/5/03 applicant to check maintenance, improve equipment and camouflage techniques when needed. Policy 8-2 : All personal wireless service facilities approved by the City should be conditioned with an abandonment provision providing for dismantling and removal of a facility by the company and/or property owner. 6 Draft 2/5/03 Chapter 4. Background Federal Regulatory Authority Master planning for personal wireless service facilities must consider the Telecommunications Act of 1996, a broad revision of the 1934 federal statute governing telecommunications. It is important at the local government level because it contains language that both preserves and limits the authority of local government to regulate personal wireless service facilities. Section 704(a)(7)(A) states: Except as provided in this paragraph, nothing in this Act shall limit or affect the authority of a State or local government or instrumentality thereof over decisions regarding the placement, construction, and modification of personal wireless service facilities. This same section (704) also sets forth the limitations of that local authority: - Shall not unreasonably discriminate among providers of functionally equivalent services. - Shall not prohibit or have the effect of prohibiting the provision of personal wireless services. - Shall act on any request for authorization to place,construct, or modify personal wireless service facilities within a reasonable period of time after the request is filed. - Shall put any decision to deny personal wireless service facilities into writing, supported by substantial evidence contained in the written record. - Shall not regulate personal wireless service facilities on the basis of the environmental effects of radio frequency emission to the extent that such facilities comply with the Federal Communications Commission Guidelines for such emissions. Technology Overview Wireless communications are transmitted through the air via radio waves of various frequencies. Radiofrequency radiation is one of numerous types of electromagnetic radiation. Cellular and Enhanced Specialized Mobile Radio 7 Draft 2/5/03 (ESMR) operate at frequencies between 800 and 900 megahertz (MHz), and Personal Communications Systems (PCS) operate at both 900 MHz, as well as between, 1850 and 2,200 MHz. These three technologies function similarly in that their communications systems consists of interconnected "cell sites" or geographic areas that cover a region. In general,cell sites tend to be smaller in size and more numerous in the cities and larger in size and less numerous in rural areas. This happens because cities have more people (customers) than rural and outlying areas. As more people demand wireless communications services, wireless systems will require additional capacity to handle calls. To add capacity,wireless companies use two methods: 1) Change technology from analog to digital, 2) Add more cell sites. As more cell sites are added, the coverage area of each cell site must be reduced to avoid overlapping coverage. Currently, the wireless companies are offering voice communications, paging and text messaging; however, they are aggressively working to provide other information services over their wireless networks, such as, data and video communications and wireless internet services. To develop the capacity to handle this large amount of information, companies must continue to develop new technologies and undoubtedly provide more cell sites. Each cell site within the system contains a set of transmitting and receiving antennae that are mounted to the ground,building, monopole or lattice tower. Calls placed with a wireless phone are transmitted by the phone to a cell site antenna that is connected via a land-based line to a central computer switching system. The central switch completes the call by connecting it to a conventional phone through a land-based line or to another wireless phone through the nearest antenna. When a call is made from or to a wireless phone, the call and caller is handed off from cell site to cell site. Community Issues 1. Height. A determining factor in the location, siting and design of a personal wireless service facility is the height of the antennae. The dish, panel,whip and yagi antennae function on a line of sight transmission. Antennae need to be placed at specific heights in relationship to one another in order to transmit and receive radio signals. Buildings, hills and trees can block signals when the line of sight is obstructed, so wireless companies often seek approval for antenna heights that are above the obstructions. Other problems may occur when the coverage area has varying topography,which makes line of sight transmission difficult. 8 Draft:t/5/03 Personal wireless service facilities are often mounted on the roof of a building if the building is of adequate height, that is, of at least 25 feet above ground level (two stories). When the building is taller than 25 feet(three stories minimum), the antennae may be side-mounted on the building wall. The challenges occur when most of surrounding structures in a local area are low-profile, one-story buildings and the wireless carrier must erect a new lattice tower or monopole to mount the antennae and achieve the necessary height. Such mounts can have obtrusive visual effects if not properly camouflaged in an area of low-profile buildings. 2. Facility Proliferation. "How many personal wireless service facilities will be built?" is a frequent question. To some degree the number of facilities will depend on how popular wireless communications will be to the general consumer, how many new companies enter the field, and what types of additional services will be offered by these companies, which affects the capacity of the cell sites. As more personal wireless service facilities are added to increase capacity, each facility may be shorter in height to serve a smaller area and avoid overlaps in coverage with adjacent cell sites. A. Consumer Demand-Most companies have already established their initial network of cell sites (the Coverage Phase),which were designed to provide the most coverage per facility and were established along highways and other major transportation corridors. Most of these wireless companies have now entered a Capacity Phase, where companies are infilling their service area with additional facilities to fill "holes" in their coverage and add capacity to high demand areas. Wireless communications continues to be extremely popular with the general public. The FCC reports that there were 122.4 million wireless subscribers nationwide at the end of 2001, up 54 percent from the end of 1999. In California, wireless phones are even more popular with the total number of subscribers soaring 76% to 15 million in the same time frame. In Cupertino,local high technology companies have sought personal wireless service facility approval on their own buildings in order to improve intra-building and inter-building coverage for their own employees. B. Number of Companies -Staff is aware of at least eight wireless companies operating personal wireless service facilities within the City boundaries. There are two cellular companies: Verizon Wireless and AT&T Wireless; one enhanced specialized mobile radio company: Nextel Communications;four PCS companies: Sprint PCS, Cingular Wireless, MetroPCS and Voicestream; and one paging company: PageNet. Except for P'ageNet, which operates one paging 9 Draft 2/5/03 facility in the City, and Voicestream,which shares the Cingular cell sites, the other companies operate from 3 to 7 facilities within City boundaries. While the capital requirements remain very high for new companies interested in entering the field, consumer demand continues to grow for wireless services. The federal government has also allocated an additional portion of the electromagnetic spectrum for personal wireless services and may hold additional auctions for potential new licensees in the near future. Each new licensee entering the field, and the expectation is for two more licenses, may add a separate new network to Cupertino. C. Additional Future Services - Most of the companies mentioned envision expanding the range of the services they offer over their wireless networks. Going beyond voice communications, paging and text messaging to include transmission of larger quantities of data, video communications and even wireless internet connections. The quantity of information the companies would like to transmit far exceeds the capacity of their existing communications networks. New technologies must be developed, including a much more highly distributed set of personal wireless service facilities to make this vision a reality. 3. Visibility & Aesthetics. Many people find the personal wireless service facilities to be visually unattractive. City staff and wireless companies spend a lot of time designing facilities that are well-camouflaged,but this is becoming a more difficult task as the best sites (least visible) are already occupied with facilities. Cupertino has outstanding vistas. The primary one is the nearby western foothills, which are largely in a natural state. The City also expends a great deal of effort beautifying its major transportation corridors by landscaping its medians and rights-of-way, requiring significant private landscaping, and relating building design to the public realm. The height and continued proliferation of facilities will likely make them more apparent to residents in the future and potentially create more obtrusive visual impacts than ever before. One strategy to reduce the proliferation of facilities is to require the co-location of facilities on a single structure, such as, a lattice tower. There is, however, an inherent tradeoff. Accommodating many facilities on a single structure reduces proliferation,but often causes serious visual impacts. Many antennae and equipment concentrated on one lattice tower tend to draw more attention than the dispersal of less visible but more numerous facilities. An example of this is• the lattice tower on the De Anza College Campus. 10 Draft 2/5/03 Policy 4-1: Carriers should use the best available camouflage techniques to reduce the intrusive and obtrusive visual impacts of per.vonal wireless service facilities to the extent possible. 4. Facility Installation in Residential Areas. Personal wireless services are increasingly moving toward home usage. If costs continue to decline, consumers will continue to use their "cell" phone instead of their land line phone while at home. A small, but growing number of subscribers have gone completely wireless, abandoning their land lines. The wireleis companies follow their subscribers' phone usage. Ultimately,the facilities may serve every neighborhood in the City. The deployment of personal wireless service facilities in residential neighborhoods could have significant, obtrusive visual impacts if not properly planned. It appears in residential neighborhoods, that the best places for personal wireless service facilities will be on top of or attached to street lights, utility poles, traffic signal poles or other tall structures in the public right-of- way. 11 Draft 2/5/03 In the past this was done with Metricom's antennae placed on street lights, which has met with no public objection. Metricom was a wireless internet service. Even though the company is now out of business, their abandoned antennae continue to dot ti City streets. Another company has bought Metricom's technology and plans on reusing its antenna network. Other possible sites for residential deployment include: stadium light poles at middle and high schools, flag poles and light standards in parking lots at churches, schools and other non-residential uses in the neighborhoods. 12 Draft 2/5/03 Chapter 5. Locations This section deals with the topic of the best locations in the community for personal wireless service facilities. The continuing demand for personal wireless services throughout the community will escalate the proliferation of facilities, perhaps even into the residential neighborhoods. At risk are the visual qualities of this community: its natural vistas, the tree-lined streets, the well- tended and attractive commercial and industrial areas. The key challenge is to balance the preservation of community aesthetics with the demands of wireless companies/customers to provide increasing levels of personal wireless services. It is not the purpose of this plan to encourage the location of every local personal wireless service facility within the City's boundaries. There are numerous nearby locations in the five cities and uniLncorporated areas that border Cupertino that could serve equally as well or better as potential locations. 1. Generally Appropriate Locations (Existing Structures). The best facilities are those that are unobtrusive. Using existing structures that can accept antennae that will not be noticed should be encouraged since these structures are already part of the City's visual landscape. Such structures would include two-story or taller buildings, taller signs, P.G. &E. lattice towers and power poles, church steeples and other taller structures found throughout the community. Policy 5-1 : Preferred locations for personal wireless service facilities are on existing buildings and structures. Because there are significant elevational differences in the City, there may be hillside locations in the City where a ground-mounted personal wireless facility will be technically feasible and considered unobtrusive. There are currently no such facilities located in the City. However, there is a nearby water utility property in the unincorporated area off Cristo Rey Drive that has a couple of facilities. 2. Potentially Appropriate Locations (New Structures). Sometimes more visible personal wireless service facilities, such as a new lattice tower or monopole,must be considered. Under these circumstances, they should be located in areas that have the least visual. impact. In considering such a visible facility, all alternative locations should be reviewed and the best available camouflage techniques should be applied (See Siting and Design Section of Plan). 13 Draft 2/5/03 3. Inappropriate Locations (Mainly Residential Areas). Obtrusive personal wireless service facilities that are mounted on new lattice towers or monopoles are inappropriate in residential neighborhoods. Much of Cupertino is developed with one and two-story dwellings and these facilities could stand out in marked visual contrast to their surroundings. If facilities in residential areas are to be considered, the primary goal must be to preserve the visual integrity of the residential neighborhood. Numerous techniques exist to make personal wireless service facilities more compatible and unobtrusive in residential areas. They are discussed in the Siting and Design Section. Policy 5-2 : Only unobtrusive personal wireless service facilities should be considered in residential neighborhoods. 4. Candidate Locations. The following maps and list describe the locations that have been used or may be potentially used for personal wireless service facilities. It is meant to be as inclusive as possible,but there may be other opportunities that will be reviewed on a case-by-case basis. A. Privately-Owned Locations There are numerous taller structures on private property that are candidate locations for personal wireless service facilities. There are two inappropriate structures: 1) billboards--very large, off-site advertising signs, that are legal, nonconforming structures not permitted to expand their use, and 2) flag poles used for the display of the American and State flags. These taller structures are described below: • Taller buildings: 2+ story buildings ( Map #2) • Light standards • Utility structures: transmission towers, taller utility poles, private water tanks (Map #3) • P.G.& E. service center and power substations (Map #2) • Pylon signs (not billboards) • Personal wireless service monopoles (Map #1) • Religious institutions (Map #3) • Historic structures (e.g. wooden water tower) 14 Draft 2/5/03 B. Publicly-Owned Locations (Map #2) City-owned Locations The City of Cupertino owns numerous buildings and properties throughout the community that could be potentially used for personal wireless service facilities; most,however, are shorter, one-story,buildings. • City Hall • Community Hall (to be built) • Library (to be built) • Sports Center • Quinlan Community Center • Water tanks • Park recreation centers • Service Center (Corporation yard has three facilities.) • Remnant properties along Mary Avenue • Parks and Blackberry Farm Golf Course • Traffic signal poles • Street light poles Other Government-Owned Locations Other locations owned by other government agencies may be suitable sites for personal wireless service facilities. Each agency would decide whether its properties would be available for lease for personal wireless service facilities. Such facilities need permits from the City since these commercial facilities do no relate directly to the government agency's mission. • Santa Clara County Fire Department fire stations • Fremont Unified High School District properties (building mounts, light standards, stadium lights) • De Anza College Campus • Caltrans rights-of-way and service center C. Custom-built Locations These are privately-owned and publicly-owned locations that lack a suitable, existing structure on which to mount a personal wireless service facility. Sometimes there is no mounting structure. Other times the mounting structure is not structurally suitable for antennae, and a substitute structure is fabricated and erected to replace the older one. 15 Draft 2/5/03 It is important that any new or replacement structure be designed to camouflage the personal wireless service facility, and be designed with materials and proportions that blend into the environment,not creating visual contradictions. This is discussed in some detail in the Siting and Design Section. Possible custom-built structures to house or mount personal wireless service facilities include: • City gateway or neighborhood entry features, • Flagpoles • Church steeples • Building entry features • Rooftop penthouses • Artificial trees (treepoles) • Rocks • Street lights • Power/Telephone poles D. Non-Cupertino Locations The City of Cupertino is bordered by the cities of Los Altos, Sunnyvale, Santa Clara, San Jose and Saratoga. In the west foothills, Cupertino is surrounded by the unincorporated lands of Santa Clara County. Each jurisdiction has buildings, taller structures and features, and property that could accommodate a personal wireless service facility. In many cases, these locations may be preferable to a Cupertino-based location if they are less obtrusive to the surrounding area. Examples of locations include: • Shopping centers in all surrounding cities, • The quarries and lattice towers in the unincorporated west foothills, • The Hewlett Packard campus, water tank, hotel, office buildings, hospital and lattice towers in Santa Clara along Highway 280, • Cupertino Middle School light poles, lattice towers,Caltrans right- of-way, water tanks along Highways 85 and 280 in Sunnyvale, • The Home Depot, office buildings, commercial buildings, high school, and taller utility poles in San Jose, • The taller utility poles along Prospect Road and hillside locations in Saratoga. 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Finding an appropriate location is only the first step in determining what is an acceptable personal wireless service facility in the City. Equally important is the process of siting and designing the facility. Siting is the relationship of the personal wireless service facility to its site and any structures on that site. Design is the arrangement of parts, details,form, color, etc. to achieve a desired functionality and appearance. Since these facilities are not meant for public access, the functionality has to do more with the adequacy of the cell site in the wireless company's grid of cell sites. The wireless company is best able to determine the functionality of its cell site. The City is more concerned with the appearance of the facility and how well it fits into the overall context of the built environment. Sometimes the objectives of functionality and appearance will conflict in the process of designing a personal wireless service facility. It will be the City's role to balance these two elements as it plans for facilities throughout its jurisdiction. VISIBILITY POLICIES Policy 6-1 :Personal wireless service facilities should be sited to avoid visually intrusive impacts as viewed from the public right-of-way and from residential neighborhoods. Policy 6-2 : Personal wireless service facilities should be appropriately scaled to fit harmoniously with the surrounding elements of the site and neighborhood. Policy 6-3 : Personal wireless service facilities should be compatible with their surroundings so that their shape, size, color, material, and texture blend with their surroundings. SITING AND DESIGN GUIDELINES Specific siting and design guidance is provided for personal wireless service facilities categorized by the type of equipment. In general the equipment should be sited to blend in with their surroundings. The environmental context will help dictate the best site and best camouflage technique(s) to use. This is not intended to be an exhaustive survey of siting and design guidance. Wireless companies are encouraged to provide creative solutions to facility siting and design that meet the plan's goals. 17 Draft 2/5/03 1. Antennae • Antennae near the ground in hilly locations should be screened by existing vegetation. If vegetation is sparse, additional landscaping may be planted that is similar to the surrounding vegetation or native to the area. • Antennae should be painted and textured to match the background view or foreground view,whichever will make the antennae less obtrusive. If the background is the sky, the preference is a flat gray color. • Antennae may be screened with radio wave transparent materials that have been designed and fabricated to match elements normally viewed in the immediate environment. • Typically the least obtrusive placement on a building is a flush mounting on some roof-top equipment, structure, penthouse or • building wall. A secondary location is a central place on the roof where the roofline can cut off angles of view, making the antennae less visible. The least desirable roof mount is a vertical protrusion at or near the parapet where the antennae are likely to be the most visible. • For lattice towers, the most successful antennae siting/design solutions are: 1) the top hat design,where a short, rectangular framework of steel is erected on top of the tower and the antennae are mounted to this framework extension, and 2) the leg-mounted design, where the antennae are mounted on the legs of the tower above the ground level. I uvY R:s k T•; 18 Draft 2/5/03 • Select antennae of a shape and size that are • proportion to the mounting surface, and mount them flush against the structure. • On a monopole, antennae should be mounted flush to the shaft or in vertical alignment with the shaft. Some of the newer monopoles have been designed to accommodate more than one set of antennae and their city approvals conditionedtwith a co-location requirement. The antennae should be enclosed in a screening cylinder if this reduces the obtrusiveness of the facility. • Anew antennae rack configuration on an existing monopole should only be considered if the monopole can be adapted with adequate tree-type camouflage. • The antenna shape and mounting orientation guideline may be relaxed if the antenna is of such a small size that its presence would not be noticed by the general public. An example of this is the Metricom antenna suspended from the cross arm of a city light pole m ,- , qty, E � is 7 x c x ?b y� # y�f Ny4 �" fi "� _Ui L d � : z , xa x � f sue -,„..,71,,,..,4,773 & 6 k F y f"1-,-, �' ; Draft 2/5/03 • Antennae may be mounted on top of a pole-type structure (e.g. light pole, traffic signal pole, power/telephone pole, golf course net pole, etc.) if the pole is 30 feet or less in height. The antennae should be vertically aligned with the pole and shall not exceed 15% of the height of the pole. 2. Co-Located Antennae • In general co-located antennae,whether they are on the same monopole, lattice tower or building roof should be less visually obtrusive than separate personal wireless service facilities. • All of the siting and design guidelines applicable to a single set of antennae apply to co-located antennae as well. • Building rooftops suitable for numerous co-located antennae should be retro-fitted with larger equipment screens that are architecturally compatible with the building. 3. Cables • Cable runs along the ground should generally be undergrounded unless such undergrounding would adversely affect the health of nearby mature trees. • If the cable runs are located above ground, they should be camouflaged from public view. Cables should not be routed along exterior surfaces unless they are camouflaged with materials that integrate with the design of the structure. • In lattice towers, cables should be bundled together and routed along the legs or cross members of the lattice tower. iffir 4. Equipment Cabinets &Enclosures 20 Draft 2/5/03 • On developed sites,the best location for equipment cabinets is an interior building space or a pad in an underground parking garage if available. Secondary locations include the roof and ground level parking areas. Roof-mounted equipment should be adequately screened. Ground level equipment enclosures should not remove City-required parking spaces or landscaped areas. • Ground level enclosures should be tall enough to screen the equipment and match the building materials of other onsite structures whenever possible. • Screening landscaping should also match existing, onsite landscaping if appropriate. • For lattice towers, siting the equipment beneath the lattice tower legs is one of the preferred locations. • For utility pole-type mouni:s, equipment cabinets may be mounted on the shaft if they are small enough in size to integrate with the appearance of the structure. rvif t tJ r yy Try g } 3°< Aga 21 Draft 2/5/03 • Larger equipment cabinets should be sited in underground vaults in the public right of way. The best locations are the street and the sidewalk areas. In general the vaults should avoid landscaped areas and street trees. • Larger equipment cabinets should also be sited in the rear yards of adjacent residences. Equipment cabinets should not be visible above the fence line. Wireless companies will need to negotiate land leases and easements with affected property owners. 5. Lattice Towers & Monopoles. • New lattice towers will not be considered by the City because of their obtrusiveness and because monopoles satisfactorily serve the same purpose of elevating the antennae with fewer visual impacts. • A monopole should be sited among other tall vertical structures or elements to reduce its obtrusiveness. For example among a cluster of buildings, grove of trees, or within a power substation. L • Monopoles should be approximately the same or smaller diameter as other vertical elements in the surrounding environment. The "slim line" monopoles have dramatically decreased the needed diameter of such poles,but co-location of additional antennae is problematic. 22 Draft 2/5/03 • Monopoles should be colored to match their foreground or background elements. If the sky is the background or foreground element then the monopole should be painted a flat gray color. • Intrusive and obtrusive monopoles should be camouflaged as artificial trees. Since such artificial trees appear more authentic when placed next to real trees, the planting of larger trees near the monopole may be a project requirement. • The artificial tree should be of a form similar to the surrounding trees to which it is being visually integrated, and be constructed of materials that retain a natural appearance for the life of the personal wireless service facility. • The artificial tree should not be significantly taller than the surrounding vertical elements (i.e. buildings, trees, structures, etc. it ttr k i - s t F � � 3 .� ddb , bbd F F`B X •e _ ql a t,t tt+4 L P + Other Structure Mounts. There is a host of other types of structures that are not buildings,lattice towers or monopoles that may be suitable for elevating antennae and around which a satisfactory personal wireless service facility can be built. This category includes: 23 Draft 2/5/03 power/telephone poles, light poles, taller pylon signs (except billboards), golf course net poles, etc. Some of these structures may not be structurally suitable to carry such wireless facilities, so the City will allow the wireless companies to fabricate suitable replacement structures. In other cases where a structure does not exist, the City may allow wireless companies to design and fabricate a custom-built facility that will fit into its surroundings. Additions or changes to city-owned utility structures will require the review and approval of the City Public Works Department. 6. Replacement Structures • If the wireless company needs to fabricate a new structure to replace one that is not suitable for antenna mounting, then the new structure shall approximate the size, height, shape, colors and dimensions of the existing structure in order to fit the new structure into the visual landscape. Replacement public structures will need the approval of the City Public Works Department. • Replacement structures should accommodate internalized cable runs. I • I Other Considerations There may be unusual visual conditions or technologically reasons why a personal wireless service facility cannot meet the siting and design guidelines described above. If the carrier can provide compensating visual benefits that 24 Draft 2/5/03 improve the appearance of the community, the City may consider accommodating such a facility. Policy 6-4: The City may consider reasonably accommodating a personal wireless service facility that does not meet the adopted siting and design guidelines, if the carrier can provide compensating visual benefits that improve the appearance of the community. 25 Draft 2/5/03 Chapter 7. Safety Radio Frequency Radiation (RFR) Background. There is an ongoing debate among scientists and the general public as to the health risks associated with exposure to RFR from personal wireless service facilities. The City of Cupertino has commissioned its wireless master plan technical consultant, Kreines and Kreines, to•prepare a paper investigating the federal government's regulation of RFR emissions from personal wireless service facilities and the City of Cupertino's scope of authority to review health and safety issues involving RFR. This paper, titled: "White Paper: City of Cupertino Scope of Authority to Review Health and Safety Issues Involving Radio Frequency Radiation (including Radiation of Co-located Facilities)" and dated October 31, 2001 is incorporated by reference into this Plan. A copy may be obtained from Cupertino Community Development staff. The white paper concludes that the City does not have the authority to regulate personal wireless service facilities on the basis of RFR, nor does the City have the authority to set exposure standards for RFR emissions from personal wireless service facilities, which has been pre-empted by the Telecommunications Act of 1996. The Telecommunications Act is very clear that the City may not deny an application for a personal wireless service facility because of RFR if the facility meets the FCC Guidelines for RFR exposure. The prohibition applies only to personal wireless service facilities. The adopted federal RFR exposure standards are embodied in FCC Guidelines published on August 1, 1996 and titled: "Guidelines for Evaluating the Environmental Effects of Radiofrequency Radiation." The FCC-adopted standards are the 1991 Institute of Electronics and Electrical Engineers (IEEE) standards that were subsequently adopted by the American National Standards Institute (ANSI) and became known as ANSI/IEEE C95.1-1992 in combination with a stricter National Council on Radiation Protection and Measurement (NCRP) standard that NCRP set in 1986. According to the white paper, if the City suspects that RFR standards are being exceeded, it is doubtful that the City has the police powers over a violation of the FCC Guidelines by a personal wireless service facility. An FCC Guide titled: "A Local Government Official's Guide to Transmitting Antenna RF Emission Safety: Rules, Procedures, and Practical Guidance," published in June 2000, suggests that if a violation is suspected, the local government first contact the facility 26 Draft 2/5/03 operator, and if it still has questions about compliance, the local government should contact the FCC. While the City has no authority to regulate or enforce police powers on RFR, it appears the City may review and monitor RFR for compliance with FCC Guidelines. In fact the FCC Guide previously mentioned states: "... this document recognizes that, as a practical matter, state and local governments have a role to play in ensuring compliance with FCC's limits, and it provides guidance to assist you in effectively fulfilling that role. The twin goals of this document are: (1) to define and promote locally-adaptable procedures that will provide you, ..., with adequate assurance of compliance, while (2) at the same time, avoiding the imposition of unnecessary burdens on either the local government process or the FCC's licensees. Review of RFR Emissions for Compliance with Federal Standards. As a general rule, the applicant should bear the entire cost associated with measuring, recording,reporting and monitoring RFR emissions associated with personal wireless service facilities. Based on previous RFR reports, it is likely that most facilities will not exceed FCC RFR Guidelines; however, the City should establish some standards for assessment to ensure FCC Guidelines are meet. Policy 7-1: The City should reserve the right to require applicants to prepare radiofrequency radiation assessments for personal wireless service facilities when the general public is in reasonably close proximity to such a facility and to determine compliance with FCC Guidelines. A RFR report should normally be required in the following situations: • For building-mounted antennae • For antennae mounted less than 1.0 meters (32.8 feet) above ground level • For all co-located antennae. The concern is for cumulative emissions exceeding the FCC Guidelines • For residential deployment of antennae. The RFR reporting must consider potential exposure, as well as, actual exposure. For example, a report that measures ground level RFR exposure of residents in their homes would not take into account the potential of residents adding second stories to their homes and possibly bringing themselves in closer proximity to the transmitting antennae. Policy 7-2 : If a network of residential-based personal wireless service facilities is proposed, a comprehensive RFR assessment should be done for all proposed sites. 27 Draft 2/5/03 NOISE Some of the wireless communication companies require mechanical ventilation to keep their equipment operating within an acceptable temperature range and generators to provide power or backup power in the event of a power outage. All of this equipment are potential noise sources and must comply with the City's Community Noise Ordinance. Policy 7-3 : When mechanical ventilation or power generators are proposed in personal wireless service facilities, the City should ascertain whether an acoustical analysis is necessary to determine compliance with the City's Noise Ordinance. HAZARDOUS MATERIALS Hazardous materials that are typically used in personal wireless service facilities may include such materials as Gallium Arsenide, a carcinogen, sulfuric acid in batteries, diesel fuel for generators and compressed gases. The quantities found at these facilities are usually not large and do not present a serious threat to life or property. All such facilities require building permit review, which includes review by the Fire Department of Santa Clara County that administers the City's hazardous materials ordinance. That ordinance addresses the identification, containment, storage and monitoring of hazardous materials. Fire Department personnel also has specialized equipment, training and personnel to deal with hazardous material releases. 28 Draft 2/5/03 Chapter 8. Monitoring Wireless communications is a high growth industry subject to rapid innovation and technological change. The City should keep abreast of the growth and changes as wireless communications become even more pervasive and integrated into society and our community life. In the future, how the equipment functions, how it looks, and where it is located will probably change and the City must prepare itself to react 1:0 change, set standards and plan for the future infrastructure of wireless communication. Since many personal wireless service facilities have been approved by the City before the preparation of this master plan, many may not meet the City's current guidelines and standards. Periodic review, if legally possible,would benefit the City and the applicant if needed to update the installed equipment. Presently, any changes to a facility require some type of City approval. Periodic reviews can be accomplished by placing an expiration date on the City's discretionary approvals. The City permit will then need to be "renewed" after a certain period of time by the applicant, which creates an opportunity for the City and the applicant to check maintenance, make beneficial changes, not only because of advances in equipment technology,but also advances in camouflaging techniques. The City has been placing 5-year expiration dates on most facility approvals. Some of these will expire in the next few years. Staff should monitor its facility approvals to ensure that future approvals are likewise conditioned and that expirations are"caught" and re-permitted as necessary. Policy 8-1 : All personal wireless service facilities approved by the City will be conditioned with a permit expiration date to create opportunities for the City and applicant to check maintenance, improve equipment and camouflage techniques when needed. In the event a company abandons its personal wireless service facility, the facility should be dismantled and removed by the company and/or property owner. Such a condition should be placed in City approvals for private property and in City lease agreements for City-owned and leased properties. Policy 8-2 : All personal wireless service facilities approved by the City should be conditioned with an abandonment provision providing for dismantling and removal of a facility by the company and/or property owner. 29 Draft 2/5/03 Chapter 9. Implementation BACKGROUND This section of the plan addresses how this wireless master plan will be implemented by the City through its zoning ordinances, City lease agreements and development standards. While all personal wireless service facilities will require some sort of discretionary review and/or approval, the City will not be overly burdensome from a regulation standpoint for well-designed and sited facilities that meet the goals of this plan. Applicants can expect a "tiered permit system" where the level of staff and public review of a facility proposal will depend on how well a facility is camouflaged and how unobtrusive it is in appearance to the viewing public. The necessity for a RFR report is a separate issue. The RFR report's conclusions may affect the level of review. The Planning Division staff is the main contact for most City approvals of personal wireless service facilities. Simpliest Most Complex Building Permit Only City Lease Director's Approval ASA/Design Approval Use Permit (Staff) (Planning Commission) 1. Building Permit Only. Only a building permit has been required for personal wireless service facilities that are 100% screened from any public view. The facility is able to use existing structures to screen the equipment, or replace existing structures with ones composed of radio transparent materials that are identical in appearance. While Planning staff reviews these proposals for qualification, no separate planning permit is required. To date,very few facilities have qualified for this minimum level of review. 2. City Lease. A lease to locate personal wireless service facilities on an existing City-owned facility or structure is typically negotiated with Public Works Department staff and approved or disapproved by the City Council at a public meeting. The level of Planning Division involvement and public review depends on the obtrusiveness of the facility. A building permit may also be required. An example of this type of entitlement is the lease of City light standards to Metricom for its antenna boxes. Leases involving the construction of new stand- alone facilities will probably require greater scrutiny. 30 Draft 2/5/03 3. Director's Approval. Also known as a Director's Minor Modification, this approval is executed by Planning staff and the Community Development Director. No public hearing or notice is required, but the decision is reviewed and may be appealed by anyone during a 14 calendar-day appeal period. Typically, well-screened,building- mounted or structured-mounted antennae qualify for this level of approval. 4. ASA/Design Approval. Certain facility applications require review by the Design Review Committee, a two-member subcommittee of the Planning Commission. The public meeting is less formal than a full Planning Commission hearing and requires 10-day advanced noticing of adjacent property owners. This type of application is typically for more noticeable building and structure-mounted antennae. 5. Use Permit. Typically, new tower- or monopole-mount personal wireless service facilities will require public review by the City's Planning Commission. Public hearing noticing consists of a notice published in a local newspaper of general circulation and mailed noticed to property owners within 500 feet. The Community Development Director may refer a Director's Minor Modification to the Planning Commission for public hearing review. This is necessary when the Director believes there are significant design issues or potential public controversy about the project. Noticing may be just adjacent property owners or more if warranted by the Director. WIRELESS COMMUNICATIONS FACILITIES ORDINANCE The wireless communications facilities ordinance was adopted and incorporated into the City's Municipal Code (Chapter 19.108) in 1997. It has been the City's main implementation tool and by default its policy document for the review of all personal wireless service facilities in the City. With the adoption of a wireless master plan, this ordinance will need to be updated and broaden to implement the master plan. The ordinance shall specify maximum antenna height and provide for an exception process. This ordinance also regulates ham radio facilities intended for personal use. implementor: Community Development Dept. OTHER ZONING ORDINANCES The Location Section of this Plan identifies all types of locations and structures that may be appropriate for personal wireless service facilities. Since these locations and structures may be in any number of zoning districts, a review and 31 Draft 2/5/03 probable amendments of the zoning code is required to ensure that it is internally consistent with the Wireless Master Plan. Implementor: Community Development Dept. OTHER CITY ORDINANCES AND CITY POLICIES As this master plan proposes the potential lease of all types of City property for private purposes, a review of other City ordinances and policies regarding such lease to private concerns is necessary to ensure that they are internally consistent with the Wireless Master Plan and that appropriate levels of review are built into the leasing process. Implementors: Community Development Dept., Public Works Dept. & City Attorney LEASE AGREEMENTS Model lease agreements should be developed by the City to facilitate lease of public property and structures for personal wireless service facilities and to protect City interests. Coordination with affected departments, such as the Parks and Recreation Dept. for City parklands, will be necessary to ensure their concerns are met. The City's consultant has prepared a survey of lease rates to ascertain market rental rates for such facilities. Implementor: Public Works Dept. CITY STANDARD DETAILS The City Public Works Department maintains standard specifications for all public works structures. Some of the structures suggested in this plan,like traffic signal poles and light poles, may not be physically or structurally suited to accommodate a personal wireless service facility. These structures should be evaluated by the wireless companies and the Public Works Department to determine their suitability. An alternative design or standard may need to be adopted to accommodate a residential deployment of personal service wireless facilities. Implementors: Public Works Dept. & Wireless Companies. 32 Draft 2/5/03 Chapter 10. Glossary of Terms A meaningful understanding of this Wireless Master Plan depends on a common knowledge and understanding of the terminology used in this document. The Wireless Master Plan uses the following terms and their definitions in regulating and planning personal wireless service facilities. • Above Ground Level (AGL). A measurement of height from the natural grade of a site to the highest point of a structure. • Antenna. An antenna is the transmitting/receiving portion of the personal wireless service facility that tends to be, proportionally, a small part of the total personal wireless service facility. Presently,five (5) types of antenna have been identified: - Dish or Parabolic Antenna. This is a bowl-shaped antenna of varying diameter used for point-to-point microwave communications. - Global Positioning System (GPS) Antenna. This is a small can-shaped antenna affix to a rod and mounted at a lower height, usually near the equipment cabinets. ""r jai , A 44 - Panel Antenna. This is an antenna usually deployed in clusters of three and commonly used in cellular and PCS systems. These antennae usually are rectangular in shape, standing with the end up. They can resemble plasic or glass light casings, such as seen on streetlights,but the more typical shape is like a fluorescent light case. 33 Draft 2/5/03 They are typically 4-5 feet in height, 6-12 inches in width and 6-8 inches in depth. - Whip Antenna. This is an omni-directional antenna that appears as a very thin, rod-like element, projecting up or down from its mount. They are typically 2-6 inches in diameter and 1-18 feet in length. - Yagi Antenna. This is a directional antenna designed to "see" one site. It consists of a thin, rod-like element with half a dozen or more short cross members mounted at right angles. This antenna is mounted in a horizontal direction from its mount. • Antenna Mount or Mount. This term refers to the antenna mounting hardware and the structure, if any, that elevates the antennae above the surrounding landscape, for example, a building, monopole, lattice tower, etc. There are four (4) typical types of mounts: - Ground-mount. Each antenna is fastened to a separate, short, thin rod that is anchored to the ground. These installations would be typically seen on foothill properties where the height of the hill provides the elevation for the antennae. - Roof-mount. Antennae are mounted on the roof of a building. - Side-mount. Antennae are mounted on the side of a building. 34 Draft 2/5/03 - Tower or Monopole-mount. Antennae are mounted on the top or side of a lattice tower, guyed tower or monopole, or a monopole. Sometimes a large and substantial framework is added so the antennae will protrude noticeably above or beyond the surface of the tower or monopole. This is referred to as a "top hat" or "rack" configuration, which is often used to accommodate more than three panel antennae at one mount. On monopoles, sometimes a dual-polarized or cross- polarized panel antennae are used which allows the antennae to be mounted very closely, almost flush, to the surface of the monopole. - Structure-mount. Antennae are mounted to the top or side of a structure, other than a building, tower or monopole, such as a water tank or tall ground sign. • Applicant. A person or entity who submits a permit application for a personal wireless service facility before the City of Cupertino. • Base Transceiver Station. The personal wireless service facility equipment housed in cabinets or an enclosure or shelter. The term is usually used for a PCS-type cell site. • Camouflage. A palette of techniques used to disguise, hide and conceal a personal wireless service facility from public view by blending its appearance into elements of the visual background. The term connotes the use of paint, landscaping, building materials and artificial screens in patterns that merge with the elements in the background environment. • Carrier. An entity or company in the business of providing personal wireless services. • Cell Site. An informal term for a personal wireless service facility. • Cellular. A mobile telephone technology operating in the 800 MHz range of the electromagnetic spectrum. • Co-applicant. All other persons and/or entities joining with an applicant in permit application for a personal wireless service facility, including the owner(s) of the personal wireless service facility,the property owner(s), and any tenant(s) for the personal wireless service facility. • Co-location. The practice of installing antennae from more than one wireless communications company on a single antenna mount. • Co-location,Horizontal. The horizontal orientation of personal wireless service facilities from more than one carrier on a building. • Co-location,Vertical. The generally vertical orientation of personal wireless service facilities from more than one carrier on a vertical mount such as a monopole or lattice tower. 35 Draft 2/5/03 Horizontal Co-location of Antennae • 5 4 � b,ry`,p s ? ,a c i e Far ''+ ', er fa r k • Commercial Mobile Radio Services (CMRS). As defined by Section 704 of the 1996 Telecommunications Act, any of several technologies using radio signals at various frequencies to send and receive voice,video and data. These are considered "functionally equivalent services" by the Telecommunications Act. • Cross-polarized Antenna. Three panel antennae flush-mounted or attached very close to a shaft. • Design. The appearance of a personal wireless service facility, which includes materials,colors and shape. • Enhanced Specialized Mobile Radio (ESMR). Private land mobile radio with telephone services. The local purveyor of this communications technology is Nextel Communications. • Environmental Assessment. The document required by the Federal Communications Commission and the National Environmental Policy Act when a personal wireless service facility is proposed in an area that may be environmentally affected by the facility. The environmental assessment must show how negative environmental impacts can be mitigated. • Equipment Cabinets. Personal wireless service facilities also include one (1) or more small,enclosed structures,cabinets, boxes, sheds or underground vaults near the base of the antenna mount. These structures house power connections, emergency batteries,hardwire telephone connections and sometimes ventilation equipment needed for the operation of the facility. The equipment is connected to the antennae by cable(s). The equipment is usually secured by an enclosing structure, such 36 Draft 2/5/03 as a fence, shed or vault. "Base transceiver station" is also used to describe the radio equipment in these structures used by PCS technology. • Federal Communications Commission (FCC). The FCC is the United States governmental agency responsible for regulating personal wireless services. This agency issues licenses and writes federal regulations and standards governing telecommunication companies. The Telecommunications Act of 1996 granted this agency significant authority to regulate personal wireless services. • Functionally Equivalent Services. Cellular, PCS, ESMR,Specialized Mobile Radio and Paging. According to the Telecommunications Act, these five services must receive the same treatment by local government. • Guyed Monopole or Guyed Tower. A monopole or lattice tower that is anchored to the ground or other surface by diagonally-oriented cables. • Intrusive. A term used to describe a personal wireless service facility that visually contrasts with its surroundings to the point of conflicting with it, but not to the extent of visually dominating the surroundings (See Obtrusive.) • Lattice Tower. A self-supporting mount with multiple legs and cross bracing of structural steel. • Licensed Carrier. A company authorized by the FCC to construct and operate a commercial mobile radio services system. • Location. The area where a personal wireless service facility is located or proposed to be located. The term differs from"siting". • Mean Sea Level (MSL). A uniform reference point from which height can be measured. • Modification. The changing of any portion of a personal wireless service facility from what was approved in a previous City permit. • Monopole. A self-supporting mount consisting of a single shaft of wood, steel or concrete specifically designed and constructed to carry more than one personal wireless service antennae. • Mount. See Antenna-Mount. • Obtrusive. A term used to describe a personal wireless service facility that is visually dominating to its surrounding environment. This term usually applies to a facility where a new monopole or lattice tower is erected to mount the antennae. It may also apply to building-mounted or structure-mounted facilities that lack adequate camouflage. • Omni-directional Antenna. A thin rod that transmits or receives a radio signal in all directions. Also called a "whip" antenna. • Paging. A service that provides tone, text and limited voice messaging. Commercial paging operates on several frequencies, including narrowband PCS. 37 Draft 2/5/03 • Panel Antenna. A flat surface antenna that is usually deployed in three directional sectors and used to transmit and receive signals from that sector only. • Personal Communications Services (PCS). A form of radiotelephone service capable of transmitting and receiving voice, data, text and video messaging and which operates in the 1850-1900 MHz range. • Personal Wireless Services. The Plan uses the definition found in Section 704 of the Telecommunications Act of 1996. Unlicensed Wireless Services, Common Carrier Wireless Exchange and Commercial Mobile Radio Services, which includes: Cellular, Personal Communications Services (PCS), Enhanced Specialized Mobile Radio,Specialized Mobile Radio and Paging. • Personal Wireless Service Facility. As defined in the Telecommunications Act of 1996, a facility that is designed to provide personal wireless services. • Radio Frequency (RF) Engineer. Someone with a background in electrical engineering who specializes in the study of radio frequencies. RF engineers are licensed by the State as Professional Engineers. • Radio Frequency Radiation (RFR). The emissions from personal wireless service facilities that in excessive amounts can be harmful to humans. • Search Ring. A generally circular geographic area of a specific radius that a carrier uses to focus his search for a personal wireless service facility location. • Separation. The distance between one carrier's antenna array and another carrier's antenna array. Separation may be horizontal or vertical. • Siting. The method of placing a personal wireless service facility on a specific site or property. The term differs from determining"location." • Specialized Mobile Radio (SMR). A group of services serving dispatch and data communication users, usually over a small geographic area. SMR operates over several frequencies in the 800 to 900 MHz range. • Telecommunications Act of 1996. This is a broad revision of the 1934 federal statute governing telecommunications. It is important at the local government level because it contains language that both preserves and limits the authority of local government to regulate personal wireless service facilities. • Unobtrusive. A term used to describe a personal wireless service facility that is not visually dominating to its surroundings. These are usually facilities mounted on buildings or other structures that are well- camouflaged. This also describes facilities that are not as well camouflaged, but do not visually stand-out because of placement, shape and/or relative size of the facility compared to surrounding visual elements. 38 Draft 2/5/03 • Unlicensed Wireless Services. Commercial mobile services that can operate on public domain frequencies and that therefore need no FCC license for each personal wireless service facility. However, an unlicensed carrier needs a FCC license. 39 City Hall f * 10300 Torre Avenue Cupertino CA 95014-3255 0 (408)777-3354 CITY OF 0°' FAX(408)777-3333 CUPERJINO _ PUBLIC WORKS DEPARTMENT Summary AGENDA ITEM r AGENDA DATE June 19, 2000 SUBJECT AND ISSUE Authorization for execution of Antenna Site Lease Agreement between the City of Cupertino and Nextel of California, Inc., a Delaware Corporation dba Nextel Communications BACKGROUND Nextel of California, Inc. desires to utilize the City's Service Center to erect an antenna for wireless antenna. The City benefits by leasing property and receiving a revenue stream. Terms of the Agreement The following are the high points of the agreement: • The term is for five years and two renewable options of five years each, bringing the total to 15 years. • The size of the area leased by the City is approximately 600 square feet at the rear of the Service Center adjacent to the freeway. • The facility will consist of an antenna pole, to be approved by the Planning Commission, and a small building to house equipment. • The lease is $1,800 per month with a cost of living increase of 5%per year. STAFF RECOMMENDATION Staff recommends that the City Council adopt Resolution No. 00- /1 , authorizing the Mayor to execute the Antenna Site Lease Agreement with Nextel Communications. Subm,! -• A roveRfoi subyission: pP ,II --Af btu' ` :/A -rt J. Vis • ich DonaJ 1 D.'Briwn irector of Public Works City Manager l 6- Printed on Recycled Paper / RESOLUTION NO. 00-184 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO AUTHORIZING EXECUTION OF ANTENNA SITE LEASE AGREEMENT BETWEEN THE CITY OF CUPERTINO AND NEXTEL OF CALIFORNIA, INC., A DELAWARE CORPORATION, dba NEXTEL COMMUNICATIONS WHEREAS, there has been presented to the City Council an Antenna Site Lease Agreement for the lease of facilities located at the Cupertino Service Center, 10555 South Mary Avenue; and WHEREAS, the provisions, terms, and conditions of the aforementioned agreement have been reviewed and approved by the City Attorney and the Director of Public Works. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Cupertino hereby authorizes the Mayor and the City Clerk to execute said agreement on behalf of the City of Cupertino. PASSED AND ADOPTED at a regular meeting of the City Council of the City of Cupertino this 19th day of June, 2000, by the following vote: Vote Members of the City Council AYES: NOES: ABSENT: ABSTAIN: ATTEST: APPROVED: City Clerk Mayor, City of Cupertino RESOLUTION NO. 00-184 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO AUTHORIZING EXECUTION OF ANTENNA SITE LEASE AGREEMENT BETWEEN THE CITY OF CUPERTINO AND NEXTEL OF CALIFORNIA, INC., A DELAWARE CORPORATION, dba NEXTEL COMMUNICATIONS WHEREAS, there has been presented to the City Council an Antenna Site Lease Agreement for the lease of facilities located at the Cupertino Service Center, 10555 South Mary Avenue; and WHEREAS, the provisions, terms, and conditions of the aforementioned agreement have been reviewed and approved by the City Attorney and the Director of Public Works. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Cupertino hereby authorizes the Mayor and the City Clerk to execute said agreement on behalf of the City of Cupertino. PASSED AND ADOPTED at a regular meeting of the City Council of the City of Cupertino this 19th day of June, 2000,by the following vote: Vote Members of the City Council AYES: Burnett, Chang, James, Lowenthal, Statton NOES: None ABSENT: None ABSTAIN: None ATTEST: APPROVED: /s/Kimberly Smith /s/John Statton City Clerk Mayor, City of Cupertino Antenna Site Lease Agreement between the CITY of Cupertino and Nextel of California, Inc., a Delaware Corporation, d/b/a Nextel Communications This Antenna Site Lease Agreement("Lease") is executed by and between the CITY of Cupertino, a municipal corporation, hereinafter called"CITY" and Nextel of California, Inc., a Delaware corporation, d/b/a Nextel Communications, hereinafter called"LESSEE." I. DEMISED PREMISES CITY hereby leases and LESSEE leases from CITY a portion of that certain real property situated in the CITY of Cupertino, State of California, commonly known as Cupertino Service Center("Site") described and delineated as specifically shown on Exhibit A attached hereto, consisting of approximately six hundred(600) square feet of land. Said real property is hereinafter called the "PREMISES" and is described in Exhibit B attached hereto. A. PERMITTED USE The PREMISES may be used by LESSEE for any lawful activity in connection with the provision of mobile/wireless communication services, including without limitation, the transmission and the reception of radio communication signals on various frequencies and the construction, maintenance and operation of related communication facilities. LESSEE shall not use the PREMISES for any activity or in any manner which would tend to lower the character of the PREMISES, or in such a manner as to create any nuisance which disturbs, interferes with, or annoys any other neighboring person or entity. B. CONSTRUCTED IMPROVEMENTS It is contemplated that LESSEE shall construct upon the Premises a telecommunications facility which shall consist of a ten foot by twenty foot equipment shelter in which Lessee shall place its communications equipment. Before any work of construction, alteration, or repair is commenced on the PREMISES, LESSEE shall comply with all of the following conditions and provisions unless CITY's written waiver is first obtained: 1. All new structures shall first comply with CITY's applicable development standards and review process, including review and approval of required conditional use permits by the Planning Commission or CITY Council as appropriate. 2. LESSEE shall notify CITY in writing of LESSEE's intention to commence any work of improvements at least five (5)working days prior to commencement of such work. The notice shall specify the approximate location and nature of the intended improvements. CITY shall have the right to post and maintain on the PREMISES any notices of non-responsibility provided for under applicable law, and to inspect the PREMISES in relation to compliance with this Lease, other permits or the construction at all reasonable times. 3. LESSEE shall secure and deliver to CITY, care of the Public Works Department, adequate evidence of compliance with all applicable building codes, ordinances, regulations, and requirements for all permits and approvals, including but not restricted to grading 1 ORIGINAL permits,building permits, zoning and planning requirements, and approvals from various governmental agencies and bodies regulating water, sewer, and any other utility or improvement on the Site. 4. LESSEE shall provide required bonds or other security securing completion of any new structures to be constructed upon the Site,pursuant to section I(B)(5) of this Lease, and shall furnish CITY, care of the Public Works Department, with evidence of said security prior to undertaking any such construction on the PREMISES. 5. Prior to any work being conducted upon the Premises, LESSEE shall have provided to the CITY a bond or Certificate of Deposit as a security deposit in the amount of ten thousand dollars ($10,000.00) to cover the costs for the removal of LESSEE's equipment in and upon the PREMISES and any repairs that may be required to the PREMISES which are the responsibility of the LESSEE to repair under this lease. The CITY shall have the right to draw against the deposit in the event of a default by LESSEE or to cover the costs for the removal of the encroachment and any repairs that may be required to the PREMISES in the event that LESSEE fails to meet and fully perform any of its obligations hereunder. Within ten days of receipt of written notice from the CITY, LESSEE shall renew or replace such sums of money as shall bring the security deposit current. No release of the bond or certificate of deposit held as a security deposit shall be made except upon approval of the CITY, in accordance with California law. LESSEE agrees that the bond or certificate of deposit shall be held in full force and effect for the Term of this Agreement. The Security Deposit shall be released by the CITY upon completion of the removal of the encroachment and any repairs necessary to restore the PREMISES to their original condition as of the Commencement Date of the lease excepting reasonable wear and tear beyond the control or without the fault or neglect of the Lessee. The deposit shall be released thirty (30) days after the CITY Engineer's inspection and acceptance of the work. 6. Once any approved work of improvement is begun, LESSEE shall diligently prosecute completion of said work or construction. All work shall be performed in a good and workmanlike manner, and shall substantially comply with plans and specifications approved by CITY and as required by this Lease. C. SOIL CONDITIONS CITY makes no covenants or warranties respecting the condition of the soil or subsoil or any other condition of the PREMISES that might affect LESSEE's ability to construct the monopole antenna upon the PREMISES. D. UTILITY INSTALLATION ACCESS CITY grants to LESSEE the right to install utilities, for the purpose of serving the PREMISES only,which may be, in CITY's sole opinion, reasonably required. II. TERM OF LEASE A. COMMENCEMENT AND TERMINATION The term of this Lease (Term) shall be five (5) years commencing with the issuance of a local building permit allowing LESSEE to construct its mobile/wireless communications facilities on the PREMISES, or December 31, 2000, whichever is earlier(hereinafter referred to as "Commencement Date"). At the option of LESSEE, the term of this Lease may be renewed for successive five-year periods of time (hereinafter referred to as "Renewal Term"), but in no event, shall the Lease be extended for more than two Renewal Terms without the negotiation and execution of a new lease. Not withstanding the above, the CITY may terminate the lease prior to the expiration of its term or any Renewal Term, under the following circumstances: 1. If LESSEE is in material breach; 2. If the CITY is required by federal, state or local law to regain possession of the PREMISES; 3. If the CITY no longer utilizes the Site as a city facility. Upon a breach or default of any of the terms or obligations of this LEASE by LESSEE,the CITY shall serve written notice upon LESSEE reasonably describing the breach or default. If LESSEE fails to cure a monetary breach or default within thirty (30) days or a non-monetary breach within sixty (60) days this LEASE shall be subject to termination at the option of the CITY. The CITY shall be entitled to exercise all rights and remedies hereby reserved under this LEASE or made available under applicable laws. Termination of this LEASE by the CITY shall constitute the withdrawal of any consent or authorization of CITY for LESSEE to perform any construction or other work under this LEASE excepting only that work necessary to remove all equipment and to repair the PREMISES to their original condition existing at the Commencement Date of the LEASE, reasonable wear and tear beyond the control or without the fault or neglect of the LESSEE excepted. LESSEE may terminate this LEASE at any time during the term of this LEASE or any Renewal Term thereof upon thirty- (30) day's notice to the CITY with no further liability except as expressly provided herein. Upon such early termination by LESSEE, the CITY shall make a pro-rata refund to LESSEE of the rental fee paid to the CITY by LESSEE prorated to the date of CITY's acceptance of the removal of the LESSEE's FACILITIES. In the event of termination by either party, LESSEE shall immediately cease all work being performed under this LEASE, excepting only that work necessary for LESSEE to remove all equipment and repair the PREMISES in accordance with Section II(B). B. SURRENDER OF PREMISES LESSEE shall remove all LESSEE Facilities at its sole expense upon cancellation, expiration or earlier termination of this Lease. LESSEE shall repair any damage to the PREMISES caused by such removal and shall return the PREMISES to the 3 condition which existed on the Commencement Date, reasonable wear and tear and damages beyond the control or without the fault or neglect of LESSEE excepted. If LESSEE fails to remove the Facilities within thirty (30) days of the termination or expiration of this LEASE, CITY may remove and store the Facilities at LESSEE's sole cost and expense. If LESSEE does not claim the Facilities within thirty(30) days following said removal, and provided that CITY has given LESSEE and any third party financing entity thirty(30) days prior written notice, the Facilities shall be deemed abandoned and City May dispose of the Facilities. LESSEE shall notify CITY of the name and address of the third party financing entity for notice purposes herein and the CITY will be notified of any changes with respect to said entity and its address. LESSEE's obligation to observe and perform the covenants of this paragraph shall survive the end of this Lease. C. LIEN RIGHTS CITYwaives any lien rights it may have concerning the Facilities which are deemed LESSEE's personal property and not fixtures, and LESSEE has the right to remove the same at any time without CITY consent. CITYacknowledges that LESSEE has entered into a financing arrangement including promissory notes and financial and security agreements for the financing of the Facilities (the"Collateral")with a third party financing entity (and may in the future enter into additional financing arrangements with other financing entities). In connection therewith, CITY(i) consents to the installation of the Collateral; (ii) disclaims any interest in the Collateral, as fixtures or otherwise; and(iii) agrees that the Collateral shall be exempt from execution, foreclosure, sale, levy, attachment, or distress for any rent due or to become due and that such Collateral may be removed at any time without recourse to legal proceedings, except as when deemed abandoned pursuant to Section II, Paragraph B of this Lease. D. ACCESS TO IMPROVEMENTS 1. LESSEE shall have the right(but not the obligation) at any time following the full execution of this Lease and prior to the Commencement Date, to enter the PREMISES for the purpose of making necessary inspections and engineering surveys (and soil tests where applicable) and other reasonably necessary tests (hereinafter singularly and collectively referred to as "Tests")to determine the suitability of the PREMISES for LESSEE's Facilities (as defined herein) and for the purpose of preparing for the construction of LESSEE's Facilities. During any Tests or pre- construction work, LESSEE will have insurance as set forth in Section IV,B, 4, Insurance. LESSEE will notify CITY of any proposed Tests or pre-construction work and will coordinate the scheduling of same with CITY. If LESSEE determines that the PREMISES are unsuitable for LESSEE's contemplated use, then LESSEE will notify CITY and this Lease will terminate. 2. LESSEE has the right to construct, maintain and operate on the PREMISES radio communication facilities, including but not limited to, radio frequency transmitting and receiving equipment,batteries, utility lines, transmission lines, radio frequency transmitting and receiving antennas and supporting structures and improvements (hereinafter referred to as "Facilities"). In connection therewith, LESSEE has the right to do all work reasonably necessary to prepare, add, maintain and alter the PREMISES for LESSEE's communications operations and to install utility lines and transmission lines connecting antennas to transmitters and receivers. All of LESSEE's construction and installation work shall be performed at LESSEE's sole cost and expense and in good 4 workmanlike manner. Title to LESSEE's Facilities and any equipment placed on the PREMISES by. LESSEE shall be held by LESSEE. All of LESSEE's Facilities shall remain the property of LESSEE and are not fixtures. LESSEE has the right to remove all LESSEE's Facilities at its sole expense on or before the expiration or termination of this Lease. 3. At no charge to LESSEE, CITY shall provide access to the PREMISES to LESSEE, LESSEE's employees, agents, contractors and subcontractors five (5) days a week during working hours and on other days and times by special arrangement with CITY. Not withstanding the foregoing, in the event of an emergency, Lessee shall have access to the PREMISES at all hours, seven (7) days a week. Twenty-four hour emergency access is available through County Communications. CITY represents and warrants that it has full rights of ingress and egress from the PREMISES, and hereby grants such rights to LESSEE to the extent required to construct, maintain, install and operate LESSEE's Facilities on the PREMISES. LESSEE's exercises of such rights shall not cause undue inconvenience to CITY, nor shall it compromise the security of CITY's adjoining Site. 4. CITY shall maintain all access roadways from the nearest public roadway to the PREMISES in a manner sufficient to allow access. CITY shall be responsible for maintaining and repairing such roadways, at its sole expense, except for any damage caused by LESSEE or LESSEE's agents or assigns. If LESSEE or LESSEE's agents or assigns cause any such damage, LESSEE shall promptly repair same. 5. LESSEE shall have the right to install utilities, at LESSEE's expense, and to improve the present utilities on or near the PREMISES (including, but not limited to the installation of emergency back-up power). Subject to CITY's approval of the location, which approval shall not be unreasonably withheld, LESSEE shall have the right to place utilities on( or to bring utilities across) CITY's Property in order to service the PREMISES and LESSEE's Facilities. 6. LESSEE shall fully and promptly pay for all utilities furnished to the PREMISES for the use, operation and maintenance of LESSEE's Facilities. III. RENT A. BASIC RENT 1. Upon the Commencement Date, LESSEE shall pay to CITY, as rent, the sum of one thousand eight hundred dollars ($1,800.00)per month. If the Commencement Date is other than the first day of a calendar month, LESSEE may pay on the first day of the Term the prorated Rent for the remainder of the calendar month in which the Term commences, and thereafter, LESSEE shall pay a full month's rent on the first day of each calendar month, except that payment shall be prorated for the final fractional month of this Lease, or if this Lease is terminated before the expiration of any month for which Rent should have been paid. 2. These amounts will be due and payable on or before the first day of each month during the term of this Lease. The rent will be paid in advance to the Department of Finance, City of 5 Cupertino, 10300 Torre Avenue, Cupertino, CA 95014,without prior demand and without any abatement, deduction or setoff. B. LATE PAYMENT CHARGE The rent shall be delinquent if not received by the close of the business day on the 10th of each calendar month. Such unpaid amounts of rent shall be subject to a late payment charge equal to ten percent(10%) of such unpaid amounts. This late payment charge is intended to compensate CITY for its additional administrative costs resulting from LESSEE's failure, and has been agreed upon by CITY and LESSEE, after negotiation, as a reasonable estimate of the additional administrative costs which will be incurred by CITY as a result of LESSEE's failure; the actual cost being impossible to ascertain at the time of this Lease. This late payment will constitute liquidated damages due the CITY and will be paid to CITY together with such unpaid amounts. Acceptance of the payment of this late charge will not constitute a waiver by CITY of any default by LESSEE under this Lease. C. ADJUSTMENT OF RENT The rent in subparagraph A above will be adjusted according to this paragraph notwithstanding any provision in that subparagraph to the contrary: 1. Rent shall be increased on each anniversary of the Commencement Date by an amount equal to Five Percent(5%) of the rent for the previous year. IV. COVENANTS AND CONDITIONS A. CITY COVENANTS 1. Quiet Possession LESSEE,paying the said rent and performing the covenants and Leases herein, shall and may at all times during the said term peaceably and quietly have,hold and enjoy the said PREMISES for the term thereof. 2. Assignment and Subleasing The parties agree that the expertise and experience of LESSEE are material considerations inducing the CITY to enter into this LEASE. LESSEE shall not assign, sell, Lease, merge, consolidate or transfer any interest in this LEASE nor the performance of any of LESSEE's obligations herein, without prior written consent of the CITY, and any attempt by LESSEE to so assign this LEASE or any rights, duties or obligations arising herein shall be void and of no effect. The consent of the CITY will not be unreasonably withheld. Notwithstanding the foregoing, LESSEE shall have the right to assign its rights under this LEASE without the consent of the CITY to any of its subsidiaries or affiliates or its parent company or to any successor in interest or entity acquiring fifty-one percent (51%) or more of its stocks or assets, provided however, that LESSEE shall not be released from any obligation under this LEASE without the written consent of the CITY. Additionally, Lessee may assign, mortgage, pledge,hypothecate or otherwise transfer without consent its interest in this Lease to any financing entity, or agent on behalf of any financing entity to whom Lessee (i)has obligations for borrowed money or in respect of guaranties thereof, (ii)has obligations evidenced by bonds, debentures, notes or similar instruments, or (iii)has obligations under or with respect to letters of credit,bankers acceptances and similar facilities or in respect of guaranties thereof. 6 3. Hazardous Waste CITY represents and warrants that any activity concerning Hazardous Materials on the Site and the PREMISES which CITY and/or its agents undertakes or permits to be undertaken by other Lessees, Licensees or Permittees of CITY will be done in accordance with all local, state and federal regulations governing the proper use, storage, transportation and disposal of said materials. In addition to the indemnity provided in section IVB4(b), CITY shall indemnify, defend, protect and hold LESSEE harmless from and against any and all claims, loss, proceedings, damages, causes of action, liability, costs or expenses (including attorney's fees) arising as a result of any Hazardous Materials which exist within the property, common areas, building or PREMISES as of the date first written above and any Hazardous Materials which are present within the property, common areas,building or PREMISES after said date which are not the result of the activities or omission of LESSEE. Notwithstanding the foregoing, nothing herein is intended to obligate LESSEE to bring the PREMISES into compliance with applicable requirements, ordinances and statutes unless such compliance is triggered by LESSEE's use, operations or LESSEE's Facilities constructed upon the PREMISES. Not withstanding any other provision of this Lease, LESSEE relies upon the representations stated herein as a material inducement for entering into this Lease. B. LESSEE COVENANTS 1. Compliance with Law LESSEE agrees, at its sole cost and expense, to comply with all the requirements, ordinances and statutes now in force, or which may hereafter be in force, of all municipal, county, state and federal authorities,pertaining to the said PREMISES, or the operations conducted thereon. 2. Taxes LESSEE agrees to pay before delinquency all taxes, adjustments, and fees assessed or levied upon LESSEE or the Leased PREMISES, including the land and any buildings, structures,machines, appliances or other property or improvements erected, installed or maintained by LESSEE or by reason of the business or other activities of LESSEE upon or in connection with the Leased PREMISES. LESSEE recognizes and agrees that this Lease may create a possessory interest subject to property taxation, and that LESSEE may be subject to further payment of property or possessory interest taxes without any compensatory reduction in rent due to the CITY. 3. Hazardous Waste LESSEE shall not bring any hazardous materials onto the PREMISES except for those contained in its back-up power batteries (lead-acid batteries) and common material used in telecommunications operations, e.g., cleaning solvents. LESSEE will treat all hazardous materials brought onto the PREMISES by it in accordance with all Federal, State and Local laws and regulations. In addition to the indemnity provided in section IVB4(a), LESSEE shall indemnify, defend, protect and hold CITY harmless from and against any and all claims, loss,proceedings, damages, causes of action, 7 liability, costs or expenses (including attorney's fees) arising as a result of any Hazardous Materials which exist within the property, common areas,building or PREMISES as a result of the activities or omission of LESSEE. 4. Indenmity a. LESSEE shall indemnify, defend, and hold harmless CITY, its employees, successors and assigns from and against any and all loss, cost, claim, liability, action, damage, injury to or death of any person(hereinafter referred to as "Claims"), including reasonable attorney's fees, occurring on the PREMISES and arising out of or connected with the negligence or willful misconduct of LESSEE, its agents or contractors, except for Claims arising out of the negligence or willful misconduct of CITY, its agents or contractors,breach of any duty or obligation by CITY under this Lease, or any condition relating to the PREMISES which LESSEE has no obligation to repair or maintain. b. CITY shall indemnify, defend, and hold harmless LESSEE, its employees, successors and assigns from and against any and all loss, cost, claim, liability, action, damage, injury to or death of any person(hereinafter referred to as "Claims"), including reasonable attorney's fees, arising out of or connected with negligence or willful misconduct of CITY, its agents or contractors, except for Claims arising out of the negligence or willful misconduct of LESSEE, its agents or contractors, violation of any law by LESSEE, its agents or contractors,breach of any duty or obligation by LESSEE under this Lease, or any condition relating to the PREMISES which CITY has no obligation to repair or maintain. c. The foregoing indemnity in a. and b. will survive the termination of this Lease. 5. Insurance Coverage LESSEE, at LESSEE's sole cost and expense, shall procure and maintain for the duration of this LEASE, including any extensions of this LEASE and during the period that LESSEE is performing any work upon the expiration or earlier termination of this LEASE to remove the equipment from CITY property, insurance, naming CITY as an additional insured, against claims for injuries to persons or damage to property which may arise from, or in connection with, the performance of the work or provision of SERVICES hereunder by LESSEE, its agents, representatives, employees or subcontractors. a. Minimum Scope of Insurance The coverage shall include Commercial General Liability together with Broad Form Comprehensive General Liability including explosion, collapse and underground; Automobile liability including Code 1 (any auto), Code 2 (owned autos), Code 8 (hired autos) and Code 9 (nonowned autos); Workers' Compensation as required by the California Labor Code and Employers Liability insurance. b. Minimum Limits of Insurance LESSEE shall maintain limits no less than two million dollars ($2,000,000) combined single limit per occurrence for bodily injury, personal injury and property damage in Commercial General Liability; three million dollars ($3,000,000) in 8 aggregate for public liability and five hundred thousand dollars ($500,000) combined single limit per accident for bodily injury and property damage in Automobile Liability; and Workers' Compensation and Employers Liability limits of one million dollars ($1,000,000)per occurrence. c. Deductibles and Self-insured Retention Any deductibles or self-insured retention must be declared to, and approved by the CITY. d. Policy Provisions The following provisions must be included in the policies: (1.) The CITY of Cupertino, its officers, employees, agents and contractors are to be covered as additional insured regarding liability arising out of activities performed by or on behalf of, LESSEE, products and completed operations of LESSEE, premises owned, Leased or used by LESSEE, and vehicles owned, Leased, hired or borrowed by LESSEE. The coverage shall contain no special limitations on the scope of protection afforded to the CITY, its officers, employees, agents and contractors. (2.) LESSEE's insurance coverage shall be primary insurance as respects the CITY, its officers, employees, agents and contractors. Any insurance or self-insurance maintained by the CITY, its officers, employees, agents or contractors shall be excess of LESSEE's insurance and shall not contribute with it. (3.) Any failure to comply with reporting provisions of the policies by LESSEE shall not affect coverage provided the CITY, its officers, employees, agents or contractors. (4.) All policies required by this LEASE shall be endorsed to state that coverage shall not be suspended, voided, canceled or reduced in limits except after thirty(30) days prior written notice has been given to the CITY. e. Acceptability of Insurers The insurance carrier shall provide proof of their ratings. All ratings shall be a minimum of"Best A-7." f. Verification of Coverage The CITY shall provide all required forms. LESSEE shall furnish CITY with certificates of insurance and with all endorsements affecting coverage required by this LEASE. The certificates and endorsements for each policy are to be signed by a person authorized by that insurer to bind coverage on its behalf. g. Subcontractors LESSEE shall either include all subcontractors as insured under its policies or shall require all subcontractors to meet CITY's requirements listed above. 6. Maintenance and Repairs LESSEE agrees to assume full responsibility for the operation, maintenance, and repairs of the PREMISES throughout the term hereof without expenses to 9 the CITY unless otherwise specified herein, and to perform all repairs and replacements necessary to maintain and preserve the PREMISES in good order, in a safe, healthy and sanitary condition, in manner reasonably satisfactory to CITY in compliance with all applicable regulations and laws. LESSEE agrees that CITY shall not be required to perform any maintenance, repairs, or services, or to assume any expense not specifically assumed herein., in connection with the PREMISES. Upon expiration of this Lease, LESSEE will surrender the PREMISES to CITY in good order and condition. 7. Nondiscrimination LESSEE agrees not to discriminate in any manner against any person or persons on account of race,marital status, sex, religious creed, color, ancestry, or national origin in LESSEE's use of the premises, including, but not limited to, the providing of goods, services, facilities,privileges, advantages and accommodations, and the obtaining and holding of employment. 8. Utility Costs LESSEE agrees to order, obtain and pay all utilities, including but not limited to water, gas, electricity, telephone, communications services, sanitary and drainage services, and service installation charges on any improvements made by LESSEE on the PREMISES. LESSEE shall also secure and utilize waste disposal services for the PREMISES in accordance with applicable local and state ordinances. All utilities on the Site shall be underground. In the event utilities to the PREMISES are furnished by the CITY and are measured by privately installed sub-meters, LESSEE shall pay as additional rent the cost of utility service provided to the PREMISES and attributable to LESSEE's use ("Utility Charge"). LESSEE shall pay the estimated cost of the Utility Charge monthly in advance together with the monthly Rent. The parties estimate the Utility Charge at the Commencement Date to be Two Hundred Fifty Dollars ($250.00)per month. During the lease term, at CITY's request(which request shall not be more frequent than once every twelve months), LESSEE shall calculate the actual Utility Charge for the immediately preceding twelve (12)months based on the readings from the privately installed sub-meters at CITY's Property. If the actual Utility Charge varies from the estimated Utility Charges paid, the parties shall adjust the Utility Charge to reflect LESSEE's actual usage. 9. Waste, Damage or Destruction LESSEE agrees to give notice to CITY of any fire or damage that may occur on the leased PREML3ES within ten(10) days of such fire or damage. LESSEE agrees not to commit or suffer to be committed any waste or injury or any public or private nuisance, to keep the PREMISES clean and clear of refuse and obstructions, and to dispose of all garbage, trash and rubbish in a manner reasonably satisfactory to the CITY. If the PREMISES is destroyed or damaged so as in LESSEE's judgment,to hinder its effective use of CITY's property, LESSEE may elect to terminate this Lease as of the date of the damage or destruction by so notifying CITY in writing no more than 30 days following the date of damage or destruction. In such event, all rights and obligations of the parties which do not survive the termination of this Lease shall cease as of the date of the damage or destruction. 10. Contingency It is understood by LESSEE and CITY that this Lease is fully contingent upon LESSEE obtaining final development approvals for construction of improvements on the leased land from the CITY. In the event that such governmental approvals are not obtained on or 10 before December 31, 2000, after due diligence by LESSEE, LESSEE shall have the right to terminate this agreement within 30 days by notifying CITY in writing. If terminated, LESSEE shall have no further obligation to pay rent or comply with any other provision of this Lease. 11. Interference with Communications LESSEE's facilities shall not disturb the communications configurations, equipment and frequency which exist on CITY's property on the Commencement Date (hereinafter referred to as "Pre-existing Communications"), and LESSEE's facilities shall comply with all non-interference rules of the Federal Communications Commission (FCC). CITY shall not permit the use of any portion of the Site in a way which interferes with the communications operations of LESSEE described in Paragraph I. A., above. Such interference with LESSEE's communications operations shall be deemed a material breach by CITY, and CITY shall have the responsibility to terminate said interference within a reasonable time of LESSEE's written notice to CITY. In the event any such interference does not cease within ten days time, the parties acknowledge that continuing interference will cause irreparable injury to LESSEE, and therefore, LESSEE shall have the right to terminate the Lease immediately upon notice to CITY. Notwithstanding the foregoing, Pre-existing Communications operating in the same manner as on the Commencement Date shall not be deemed interference. 12. Legal Proceedings LESSEE agrees that should it become necessary for CITY to commence legal proceedings to collect rent, recover possession, or enforce any other provision of this Lease, the prevailing party will be entitled to legal costs and expenses in connection therewith, including reasonable attorney's fees as determined by the court. The parties agree that the laws of the State of California shall be used in interpreting this Lease and will determine all rights and obligations hereunder, and it is agreed that this Lease is executed in Cupertino, CA. 13. Electromagnetic Fields LESSEE shall comply with all present and future laws, orders and regulations relating to Electromagnetic Fields (EMFs), and the American National Standards Institute (ANSI) standards. Without limiting the provision of LESSEE's indemnity contained herein, LESSEE, on behalf of itself and its successors and assigns, shall indemnify the CITY from and against all claims of personal injuries due to EMFs to the extent such personal injuries are caused by LESSEE's facilities on the Premises. C. RESTRICTIVE CONDITIONS 1. Administration and Notices CITY's agent for control and administration of this Lease shall be the Director of Public Works of the CITY of Cupertino, and any communication relative to the terms or conditions or any changes thereto or any notice or notices provided for by this Lease or by law to be given or served upon CITY may be given or served by certified letter deposited in the United States mails, postage prepaid, and addressed as indicated below,. Any notice or notices provided for by this Lease or by law to be given or served upon LESSEE may be given or served by depositing in the United States mails,postage prepaid, a certified letter addressed to said LESSEE at the PREMISES or at such other address designated in writing by LESSEE, or may be personally served upon them or any person hereafter authorized by them to receive such notice. Any notice or notices given or served as provided herein shall be effectual and binding for all purposes upon the 11 principals of the parties so served upon personal service or forty-eight(48)hours after mailing in the manner required herein: CITY: Director of Public Works City of Cupertino 10300 Torre Avenue Cupertino, CA 95014 LESSEE: Nextel of California, Inc. 1255 Treat Blvd., Suite 800 Walnut Creek,CA 94596 Attention: Property Management with a copy to: Nextel Communications 2001 Edmund Halley Drive Reston, VA 20191-3436 Sixth Floor, Mail Stop 6E630 Site Leasing Services; Contracts Manager CITY or LESSEE may, from time to time, designate any other address for this purpose by written notice to the other party. 2. Entry and Inspection CITY reserves the right to enter the PREMISES for the purpose of viewing and ascertaining the condition o f the same, or to protect its interests in the PREMISES, or to inspect the operations conducted thereon. In the event that such entry or inspection by CITY discloses that the PREMISES are not in a safe,healthy and sanitary condition, CITY shall have the right, after thirty(30) days written notice to LESSEE, to have any necessary maintenance work done for and at the expense of LESSEE and LESSEE hereby agrees to pay promptly and any all reasonable costs incurred by CITY in having such necessary maintenance work done in order to keep the PREMISES in a safe, healthy and sanitary condition. Failure to reimburse CITY for the reasonable costs incurred by CITY within thirty(30) days of completion of said maintenance work shall constitute a default of this Lease. 3. Holding Over. This Lease shall terminate without further notice at expiration of the term. Any holding over by LESSEE after expiration shall be under the same terms of this Lease, as may be amended, and shall not constitute a renewal or extension or give LESSEE any rights in or to the PREMISES except as otherwise expressly provided in this Lease. 4. Merger The voluntary or other surrender of this Lease by LESSEE, or a mutual cancellation thereof, shall not work a merger and shall, at the option of CITY, terminate all or any existing subleases or subtenancies or may, at the option of CITY, operate as an assignment to it of any or all such subleases or subtenancies. 12 5. Reservation of CITY Rights CITY hereby reserves all rights ,title and interest in any and all gas, oil, minerals and water beneath said Leased premises. CITY shall have the reasonable right to enter the PREMISES for the purpose of making repairs to or developing municipal services. CITY hereby reserves the right to grant and use such easements or establish and use such rights-of-way over, under, along and across the PREMISES for utilities, thoroughfares, or access as it may deem advisable for the public good. Provided, however, CITY shall not unreasonably interfere with LESSEE's use of the PREMISES and will reimburse LESSEE for physical damages, if any,to LESSEE's facilities located on the PREMISES resulting from CITY's exercising the rights retained in this paragraph. Such reimbursement may include a reduction in the annual rent proportionate to the amount of any physical damage as reasonably determined by CITY. CITY shall pay the costs of maintenance and repair of all CITY installations made pursuant to the rights reserved herein. All utilities shall be underground. 6. Time is of the Essence Time is of the essence of each and all of the terms and provisions of this Lease and this Lease shall inure to the benefit of and be binding upon the parties hereto and any successor of LESSEE as fully and to the same extent as though specifically mentioned in each instance, and all covenants, stipulations and agreements in this Lease shall extend to and bind any assigns or sublessees of LESSEE. 7. Waiver The waiver by CITY of any term, covenant, or condition herein contained shall not be deemed to be a waiver of such term, covenant or condition, or any subsequent breach of the same or any other terms, covenant or condition herein contained. The subsequent acceptance of rent hereunder by CITY shall not be deemed to be a waiver of any preceding breach by LESSEE of any term, covenant or condition of this Lease, regardless of CITY's knowledge of such preceding breach at the time of acceptance of such rent. Failure on the part of CITY to require or exact full and complete compliance with any of the covenants, conditions or agreements of this Lease shall not be construed as in any manner changing the terms hereof and shall not prevent CITY from enforcing any provision hereof. 8. Recordation LESSEE may, at its cost, record this Lease or a memorandum of this Lease. 9. Title. a. CITY warrants that it has full right, power, and authority to execute this Lease; CITY further warrants that LESSEE shall have quiet enjoyment of the PREMISES during the Term of this Lease or any Renewal Term. b. LESSEE has the right to obtain a title report or commitment for a Leasehold title policy from a title insurance company of its choice. If, in the opinion of LESSEE, such title report shows any defects of title or any liens or encumbrances which may adversely affect LESSEE's use of the PREMISES, LESSEE shall have the right to terminate this Lease immediately upon written notice to CITY. 13 10. Captions The captions of the various articles and paragraphs of this Lease are for convenience and ease of reference only and do not define, limit, augment, or describe the scope, content, or intent of this Lease or of any part of this Lease. 11. Entire Agreement This Lease contains the entire agreement between the parties. No promise, representation, warranty, or covenant not included in this Lease has been or is relied on by either party. Each party has relied on its own examination of this Lease, the counsel of its own advisors, and the warranties, representations, and covenants in the Lease itself. The failure or refusal of either party to inspect the PREMISES, to read the Lease or other documents, or to obtain legal or other advice relevant to this transaction constitutes a waiver of any objection, contention, or claim that might have been based on such reading, inspection, or advice. 12. Severability The invalidity or illegality of any provision of this Lease shall not affect the remainder of the Lease. 13. Successors Subject to the provisions of this Lease on assignment and subletting, each and all of the covenants and conditions of this Lease shall be binding on and shall inure to the benefit of the heirs, successors, executors, administrators, assigns, sublessees, tenants, subtenants, and personal representatives of the respective parties. IN WITNESS WHEREOF, this Lease agreement is executed by CITY, acting by and through the Mayor, and by LESSEE, acting by and through its lawfully authorized officers. APPROVED ' S TO Ft • L , A i Ieh.tdi iL rATy Attorney Charles P. Han CITY OF CUPERTINO BY TIT John Statton, Mayor NEXTEL OF CALIFORNIA, INC. BY ,►naj 6 .. MARK NELSON TITLE Mark B.Nelson Vice President JUN 1 L: 2000 VICE PRESIDENT OFWGINEFRING NEXTEL OF C�;Ll� ;?°I;A, ,,.^. ORIGINAL .‘ EXHIBIT "A" CA-2151 B/Hwy 280/87 10555 Mary Avenue Cupertino, CA 95014 APN: 326-06-052 PA• NO. 2 t _.- ._..._. • SRO 110 at o pv,tat es the Westerly line of,that cottais 40 acre tract of lend cribed In time Deed from Lloyd L. Edwiids, et ux, to Joe A. Sorel, et wr doted February 1, 1943, recorded February 10, 1943 in look 1243 0. S.; Pais ' , Salta Clare County aecerds, distant thereoa South O' OS' last 2320. feet fros an iron pips in the centerline of Noasstsad Road; g tbSOCi South 0' 08' list along the I sterly line of said 40 acre tract 32.09 fast to an iron pipe at the Southeasterly corner thereof; rhos g thane South 89" 44' West along the Southerly line of said 40 acre tract 39.32 fee: .o in iron pipe at the Southwesterly corner thereof; thence Worth 0' 08' 30" West along the Westerly line of said 40 acre tract ' 32.09 testa thence North 89' 44' Fast 639.54 fort to the point of beginning. • NG approximately 2.00 acres and being a portion of the Southwest 1/4 o $se;ion 11 Township 7 South, Range 2 West, H. D. 1, i X. P, 110. 2 • MOTU • at a point on tits Zistarly lino of that certain 40 hero trace of land • scribed in the Deed from Lloyd L. Edwards, at ux, to Joe A. Sorel, at ex. dated February 11, 1943, recorded February 10, 1945, in look 1243 O. 2., page 2 , Santa Clara County Records, distant thereon South O. 08' Rent 2464.4 feet from an iron pipe in the centerline of Homestead load; theoaa South 0' 08' test slong the Easterly line of said 40 acre tract 56.00 ' set to the Northeasterly corner of .bat cartels 2 sore trace of land disc is the Deed from Joe A. sores, et ex, to 114 Jakovieb. at ex, dated Yebras y 11, 1949 is Rook 1569 0. 1., Peg. 37, Sane Clara County Records; ag thecae South 89' 44' Best along the Norcherly lira of raid g acre tract S9.S4 foot to the Northwesterly corner thereof on the VVestaly tine of. , • said acre tract; . •- • •g thence north 89. 44' East slang said lent pawed lino 56 foot: rang 'thence North 89' 44' last ani parcllal with the Northerly lira of said 2 acre. treat 6!9.55 feet to'Lhe point of beginning. epproxioetely 0.83 scree and being a portion of aws southwest 1/4 of Sec :1, Tommahlp 7 South, (tease 2 West, N. D. s, i W. 710n PARC1L8 1 and 2 all that portion thereof diiCribed as Parcels 1 • and 2 the Deed frail(' Jakoviab, at um,. to the Stets of Califernis. recorded Angus 12, 1964 In Soot 6619, 0. R.. rage 356, Santa Clara County Records, and • more particulary described as fellows FAQ WS: at the Southeasterly corner of the 2.00'aaie parcel or land eoaveyed INITIALS to K. ' akoi'ieh, at ux, by Dead recorded Psbruasy 11, 2949 in Boob 1569 of Offic Records, page 97; , t *loud the Southerly line of said parcel South 89. 15' 33° East 133.92 pr— feet; rkee a frail a taugont.that bears North 16' 12' 43° Vent, along a eMNs to the ' right b a radios of 1447.00 feet, through an angle of 4. 33' 21', ea are lent of 713,90 feat' . lease taw= that bears North 12' 16' 35° West, along a scum to the'. risks th a radian of 600,00 feet through an eagle-of 7' 21' 30, an arc leagty EXHIBIT "A" CA-2151B/Hwy 280/87 10555 Mary Avenue Cupertino, CA 95014 APN: 326-06-052 of 77.0 foot to the Somberly line of the parcel of land conveyed to the Sc&ta • California by Dead sreordad October 22, 1959 in book 4582 of officio). Records pall 479; • • aloes lost said lino Worth 19' 151 33" ieest 91.69 foot to the Faatarly line of tba parcel of laved eopveysd to tha State of c.aliforats by Doed 'warded Demobs 1, 1960 is book 4991 of Official, rrcurds, page 436; t• • aloes last said lice tooth 0' 51' 03" We laa.09 fast to the point of ... east. «. 0.474 of as cart. aoro or laaa. As to • 1 above, this conveyance to made for thr purposes of a frrowsy and the ntor hereby roleaeos and roliuquislu s to thin groom' any and all &butter rights of access, appurtenant to rantor's remaining property, is sad to said rocvsy. 'ARCM CCI9t1NC ' • at the Sonthsastsrly corner of the 2.00 acre pnrcol of land rouvsysd to K. J oh. at ux, by Deed recorded 7sbruary 18, 1948 in book 1569 of Of Elm , Records, page 37; • t along the Southerly 21na of said parcel North 19" 15' 33" West 30.00 toots - Wort11'0" 32' 31" asst 188.09 foot to,tha lino comma to the loads, now of ••weedy, of said K. 3*bovich. et ex. and of doe $os;i, of nx; theme along list said line South 89' iS' 33" East 30.00 fast to the limo common to the , s, air or fosserly, of said K. Jakovich;•at-•nxr-sand of Noreen L Vat - • . et al; ' t• •• along Lot; said lino South 0' 52' 31" Vast 188.09 feet to the point of -• • •t. • •• • 1' 0.130 of an acre, more or less. • • The • • ad distant** mold in the above descriptions axe on the California Color System, Zone 3% 3z1tip1y the above distances by 1.0000495 to obtais argued • el distances. ` ' EXHIBIT "B" CA-2151B/Hwy 280/87 eu 10555 Mary Avenue Cupertino, CA 95014 k\ APN: 326-06-052 4 a) U Z CNI k O ‘Ci O O i1 Z 6 ■ 01 aO CV 4 o L. 0 O \\*i71 tg O CIJ v p INma►LS -�•� N 0 O 'er ets Z c C January 12 2010 RECEIVED PUBLIC WORKS DEPARTMENT JAN 15 2010 City of Cupertino Attn: Ralph Qualls 10300 Torre Avenue Cupertino, CA 95014-3202 Re: TowerCo ID.: CA2156 Recorded copy of the Memorandum of Agreement Dear Mr. Qualls: Enclosed please find a copy of the recorded Memorandum of Agreement executed by you on behalf of the City of Cupertino and TowerCo. Thank you for your cooperation in this matter and please contact me with any questions. Sincerely, Sheneshia Fitts Legal Department 919-573-8674 sfitts @towerco.com TowerCo Enclosure 5000 Valleystone Dr. a 919.469.5559 919.469.5530 x info @towerco.com towerco.com Suite 200 Cary,NC 27519 —Cc)P 1 O Prepared by and after recording return to: " TowerCo s �' Attention: Legal -x " ? ' ' 5000 Valleystone Drive -..S.'1: tif .; ' "- Cary,NC27519 _ ' 4z �, a '� 4.4 � -�*"�-��`�z-h ��- �� r� �.� -, �A +��� '� �`>�1��t..1.4..,ew ,r (Recorder's Use� f 4� � , x 'I� " r. ' STATE OF CALIFORNIA _ � q- t'-':1'-';'-:;7--- -.2'' '''` t ' ` ' six z , :r.-',--'-,---, COUNTY OF SANTA CLARA ' *�` ,� is , � -~-4,,,,,w� ,A may- -^'�` �; MEMORANDUM 'S `_-=" _ __ a z -x .. . Document Date: ITY OF CUPE Lessor: CRTINO, a municipal corporation Address: Attn: Director of Public Works 10300 Torre Avenue, Cupertino, CA 95014-3202 Lessee: TOWERCO ASSETS LLC, a Delaware limited liability company Address: 5000 Valleystone Drive, Caiy,NC 27519 Legal Description of the Land is attached as Attachment A on Pages 5 and 6 THE UNDERSIGNED GRANTOR DECLARES DOCUMENTARY TRANSFER TAX IS -a X TERM OF LEASE, INCL.OPTIONS UNDER 35 YEARS COMPUTED ON FULL VALUE OF PROPERTY COMPUTED ON FULL VALUE LESS VALUE OF LIENS OR ENCUMBRANCES REMAINING AT THE TIME OF SALE UNINCORPORATED AREA CITY OF Memoram Agreement Page 1 of 6 o nduID:CA2156 of Agreem TowerC Cascade ID:CA23I7 MEMORANDUM OF AGREEMENT This Memorandum of Agreement ("Memorandum") is entered into as of the latter of the signature dates below, by and between the CITY OF CUPERTINO, a municipal corporation, having a mailing address of 10300 Torre Avenue, Cupertino, California 95014-3202 (hereinafter referred to as "Lessor"), and TOWERCO ASSETS LLC, a Delaware limited liability company, having a mailing address of 5000 Valleystone Drive, Cary, North Carolina 27519 (hereinafter referred to as "Lessee"). 1. Lessor and Nextel of California, Inc., a Delaware corporation, d/b/a Nextel Communications ("Sprint/Nextel") entered into that certain unrecorded Antenna Site Lease Agreement dated June 14, 2000, as amended, if applicable (as amended, the "Agreement") for approximately six hundred (600) square feet of certain real property and easements which are a portion of that certain parcel of real property owned by Lessor located in the County of Santa Clara, State of California described in ATTACHMENT A attached hereto (the"Land"). 2. Sprint/Nextel assigned all its right, title and interest in, to and under the Agreement to Tower Entity 7 LLC, a Delaware limited liability company ("Tower Entity"), by that certain Assignment and Assumption of Ground Lease dated September 23, 2008 and recorded as Document 20111246 among the official records of the County of Santa Clara, State of California. 3. Thereafter, Tower Entity was acquired by and merged into Lessee. 4. The term of the Agreement is for five (5) years commencing on December 31, 2000. 5. The current term expires on December 30, 2010. 6. The Agreement has a provision that the term may be extended for two (2) successive five(5) year terms with an expiration date of December 30, 2015. 7. The purpose of the Memorandum is to give record notice of the Agreement and of the rights created thereby, all of which are hereby confirmed. The terms of the Agreement are incorporated herein by reference. In the event of a conflict between the terms of this Memorandum or the addition of any terms in this Memorandum which are not contained in the Agreement, such conflicting or additional terms shall be deemed to be part of the Agreement and shall otherwise amend the Agreement and be controlling. 8. This Memorandum may be executed in two or more counterparts, all of which shall be considered the same agreement and shall become effective when one or more counterparts have been signed by each of the parties. This Memorandum is not and will not be binding on either party untiL and unless it is fully executed by both parties. • [SIGNATURES APPEAR ON NEXT PAGE] Memorandum of Agreement Page 2 of 6 TowerCo ID:CA2156 Cascade ID:CA2317 IN WITNESS WHEREOF, the parties have executed this Memorandum as of the latter of the signature dates below. LESSOR: CITY OF CUPERTINO, a municipal corporation (*/ Name: Va 'Title: I.�tX Date: /6 .2k . 09 LANDLORD ACKNOWLEDGMENT State of California County of --)ct✓1 f 4 C la rep On lT. 9(49 1 a0"Q0i before me, 1tlai'cl 61,+erl✓1 ,Notary Public n (Here insert name and title of the officer) personally appeared Fot@t 1 • Q i l I k who proved to me on the basis of satisfactory evidence to be the persons.) whose name()) is/afe subscribed to the within instrument and acknowledged to me that he/she/they executed the same in hisaler414eir authorized capacity(ies-), and that by his/heritheir signature on the instrument the person(sj, or the entity upon behalf of which the person(&)-acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. (Notary Seal) Signature of Notary Public , KAREN BERNARD-GUERIN Commission#E 1615449 ? i Notary Public-California ; Santa Clara County `'��,�` My Comm.E�ir�Nov 9.2009 Memorandum of Agreement Page 3 of 6 TowerCo ID:CA2156 Cascade ID:CA2317 LESSEE: TOWERCO ASSETS LLC, a Delaware limited liability company By: Name: Daniel Hunt Title: Vice President and CFO Date: TENANT ACKNOWLEDGMENT State of North Carolina County of Wake On before me, _ , Notary Public (Here insert name and title of the officer) personally appeared Daniel Hunt, Vice President and CFO who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of North Carolina that the foregoing paragraph is true and correct. WITNESS my hand and official seal. (Notary Seal) Signature of Notary Public Memorandum of Agreement Page 4 of 6 TowerCo ID:CA2156 Cascade ID:CA2317 ATTACHMENT A LAND PARCEL ONE: Beginning at a point on the Easterly line of that certain 40 acre tract of lands described in the Deed from Lloyd L. Edwards, et ux, to Joe A. Sorci, et ux., dated February 8, 1945, recorded in February 10, 1945 in Book 1243 O.R., Page 265. Santa Clara County Records, distant thereon South 0° 08' East 2520.46 feet from an iron pipe in the centerline of Homestead Road; running thence South 0° 08" East along the Easterly line of said 40 acre tract, 132.09 feet to an iron pipe at the Southeasterly corner thereof; running thence South 89° 44" West along the Southerly line of said 40 acre tract, 659.52 feet to an iron pipe at the Southwesterly corner thereof; running thence North 0° 08' 30" West along the Westerly line of said 40 acre tract, 132.09 feet; running North 89° 44' East 659.54 feet to the point of beginning. Being a portion of the Southwesterly '/ Section 11, Township 7 South, Range 2 West, M.D.B. & M. PARCEL TWO: Beginning at a point on the Easterly line of that certain 40 acre tract of land described in the Deed from Lloyd L. Edwards, et ux., to Joe A. Sorci, et ux., dated February 8, 1945, recorded February 10, 1945 in Book 1243 O.R., Page 265., Santa Clara County Records, distant thereon South 0° 08' East, 2464.46 feet from an iron pipe in the centerline of Homestead Road; running thence South 0° 08' East along the Easterly line of said 40 acre tract, 56.00 feet to the Northeasterly corner of that certain 2 acre tract of land described in the Deed from Joe A. Sorci, et ux, to M. Jakovich, et ux., dated February 18, 1948, recorded February 18, 1948 in Book 1569 O.R., Page 37, Santa Clara County Records; running thence South 89° 44' West along the Northerly line of said 2 acre tract, 659.54 feet to the Northwesterly corner thereof on the Westerly line of said 40 acre tract; running thence North 0° 08' 30" West along said last named line, 56 feet; running thence North 89° 44' East and parallel with the Northerly line of said 2 acre tract, 659.55 feet to the point of beginning. Being a portion of the Southwest 'A of Section 11, Township 7 South, Range 2 West, M.D.B. &M. Excepting from Parcels One and Two all that portion thereof described as Parcels 1 and 2 in the Deed from M. Jakovich, et ux., to the State of California, recorded August 12, 1964 in Book 6619, O.R., Page 656, Santa Clara County Records, and being more particularly described as follows: Parcel 1: Commencing at the Southwesterly corner of the 2.00 acre parcel of land conveyed to M. Jakovich, et ux., by Deed recorded February 18, 1949 in Book 1569 in Official Records, Page 37; thence along the Southerly line of said parcel, South 89° 15' 33" East 133.92 feet; thence from a tangent that bears North 16° 12' 43" West along a curve to the right with a radius of 1447.00 feet, through an angle of 4° 35' 21", an arc length of 115.90 feet; thence from a tangent that bears North 12° 16' 35"West, along a curve to the right with a radius of 600.00 feet through an angle of 7° 21' 34", an arc length of 77.07 feet to the Southerly line of the parcel of land Memorandum of Agreement Page 5 of 6 TowerCo ID:CA2156 Cascade ID:CA2317 conveyed to the State of California by Deed recorded October 22, 1959 in Book 4582 of Official Records, Page 479; thence along last said line, North 89° 15' 33"West 91.69 feet to the Easterly line of the parcel of land conveyed to the State of California by Deed recorded December 1, 1960 in Book 4998 of Official Records, Page 436; thence along last said line, South 0° 52' 03"West 188.09 feet to the point of commencement. Parcel 2: Commencing at the Southeasterly corner of the 2.00 acre parcel of land conveyed to M. Jakovich, et ux., by deed recorded February 18, 1948 in Book 1569 of Official Records, Page 37; thence along the Southerly line of said parcel, North 89° 15' 33" West 30.00 feet; thence North 0° 52' 31" East 188.09 feet to the line common to the lands now or formerly of said M. Jakovich, et ux, and of Joe Sorci, et ux.; thence along last said line, South 89° 15' 33" East, 30.00 feet to the line common to the lands now or formerly of said M. Jakovich, et ux., and of Norman J. Nathanson, et al; thence along last said line, South 0° 52' 31" West 188.09 feet to the point of commencement. The bearings and distances used in the above description are on the California Coordinate System, Zone 3. Multiply the above distances by 1.0000495 to obtain ground level distances. Memorandum of Agreement Page 6 of 6 TowerCo ID:CA2156 Cascade ID:CA2317 • , 9 • Antenna Site Lease Agreement between the CITY of Cupertino and Nextel of California,Inc.,a Delaware Corporation, d/b/a Nextel Communications This Antenna Site Lease Agreement("Lease") is executed by and between the CITY of Cupertino, a municipal corporation, hereinafter called"CITY"and Nextel of California, Inc., a Delaware corporation, d/b/a Nextel Communications, hereinafter called"LESSEE." I. DEMISED PREMISES CITY hereby leases and LESSEE leases from CITY a portion of that certain real property situated in the CITY of Cupertino, State of California, commonly known as Cupertino Service Center("Site")described and delineated as specifically shown on Exhibit A attached hereto,consisting of approximately six hundred(600) square feet of land. Said real property is hereinafter called the"PREMISES"and is described in Exhibit B attached hereto. A. PERMITTED USE The PREMISES may be used by LESSEE for any lawful activity in connection with the provision of mobile/wireless communication services, including without limitation,the transmission and the reception of radio communication signals on various frequencies and the construction,maintenance and operation of related communication facilities. LESSEE shall not use the PREMISES for any activity or in any manner which would tend to lower the character of the PREMISES, or in such a manner as to create any nuisance which disturbs, • interferes with, or annoys any other neighboring person or entity. B. CONSTRUCTED IMPROVEMENTS It is contemplated that LESSEE shall construct upon the Premises a telecommunications facility which shall consist of a ten foot by twenty foot equipment shelter in which Lessee shall place its communications equipment. Before any work of construction, alteration, or repair is commenced on the PREMISES,LESSEE shall comply with all of the following conditions and provisions unless CIT'Y's written waiver is first obtained: 1. All new structures shall first comply with CITY's applicable development standards and review process, including review and approval of required conditional use permits by the Planning Commission or CITY Council as appropriate. 2. LESSEE shall notify CITY in writing of LESSEE's intention to commence any work of improvements at least five(5)working days prior to commencement of such work. The notice shall specify the approximate location and nature of the intended improvements. CITY shall have the right to post and maintain on the PREMISES any notices of non-responsibility provided for under applicable law, and to inspect the PREMISES in relation to compliance with this Lease, other permits or the construction at all reasonable times. 3. LESSEE shall secure and deliver to CITY, care of the Public Works Department, adequate evidence of compliance with all applicable building codes, ordinances, • regulations, and requirements for all permits and approvals, including but not restricted to grading 1 ORIGINAL • permits,building permits, zoning and planning requirements, and approvals from various governmental agencies and bodies regulating water, sewer,and any other utility or improvement on the Site. 4. LESSEE shall provide required bonds or other security securing completion of any new structures to be constructed upon the Site,pursuant to section I(B)(5) of this Lease, and shall furnish CITY, care of the Public Works Department, with evidence of said security prior to undertaking any such construction on the PREMISES.. 5. Prior to any work being conducted upon the Premises, LESSEE shall have ✓ provided to the CITY a bond or Certificate of Deposit as a security deposit in the amount of ten thousand dollars ($10,000.00)to cover the costs for the removal of LESSEE's equipment in and upon the PREMISES and any repairs that may be required to the PREMISES which are the responsibility of the LESSEE to repair under this lease. The CITY shall have the right to draw against the deposit in the event of a default by LESSEE or to cover the costs for the removal of the encroachment and any repairs that may be required to the PREMISES in the event that LESSEE fails to meet and fully perform any of its obligations hereunder. Within ten days of receipt of written notice from the CITY, LESSEE shall renew or replace such sums of money as shall bring the security deposit current. No release of the bond or certificate of deposit held as a security deposit shall be made except upon approval of the CITY, in accordance with California law. LESSEE agrees that the bond or • certificate of deposit shall be held in full force and effect for the Term of this Agreement. The Security Deposit shall be released by the CITY upon completion of the removal of the encroachment and any repairs necessary to restore the PREMISES to their original condition as of the Commencement Date of the lease excepting reasonable wear and tear beyond the control or without the ' fault or neglect of the Lessee. The deposit shall be released thirty (30)days after the CITY Engineer's inspection and acceptance of the work. 6. Once any approved work of improvement is begun, LESSEE shall diligently prosecute completion of said work or construction. All work shall be performed in a good and workmanlike manner, and shall substantially comply with plans and specifications approved by CITY and as required by this Lease. C. SOIL CONDITIONS CITY makes no covenants or warranties respecting the condition of the soil or subsoil or any other condition of the PREMISES that might affect LESSEE's ability to construct the monopole antenna upon the PREMISES. D. UTILITY INSTALLATION ACCESS CITY grants to LESSEE the right to install utilities, for the purpose of serving the PREMISES only,which may be, in CITY's sole opinion, reasonably required. 2 II. TERM OF LEASE • A. COMMENCEMENT AND TERMINATION The term of this Lease(Term) shall be five (5)years commencing with the issuance of a local building permit allowing LESSEE to construct its mobile/wireless communications facilities on the PREMISES, or December 31,2000, whichever is earlier(hereinafter referred to as"Commencement Date"). At the option of LESSEE,the term of this Lease may be renewed for successive five-year periods of time(hereinafter referred to as "Renewal Term"), but in no event, shall the Lease be extended for more than two Renewal Terms without the negotiation and execution of a new lease. Not withstanding the above,the CITY may terminate the lease prior to the expiration of its term or any Renewal Term,under the following circumstances: 1. If LESSEE is in material breach; 2. If the CITY is required by federal, state or local law to regain possession of the PREMISES; 3. If the CITY no longer utilizes the Site as a city facility. Upon a breach or default of any of the terms or obligations of this LEASE by LESSEE, the CITY shall serve written notice upon LESSEE reasonably describing the breach or default. If LESSEE fails to cure a monetary breach or default within thirty (30) days or a non-monetary breach within sixty (60) days this LEASE shall be subject to termination at the option of the CITY. The CITY shall be entitled to exercise all rights and remedies hereby reserved under this LEASE or made available under applicable laws. Termination of this LEASE by the CITY shall constitute the withdrawal of any consent or authorization of CITY for LESSEE to perform any construction or other work under this LEASE excepting only that work necessary to remove all equipment and to repair the PREMISES to their original condition existing at the Commencement Date of the LEASE,reasonable wear and tear beyond the control or without the fault or neglect of the LESSEE excepted. LESSEE may terminate this LEASE at any time during the term of this LEASE or any Renewal Term thereof upon thirty- (30) day's notice to the CITY with no further liability except as expressly provided herein. Upon such early termination by LESSEE,the CITY shall make a pro-rata refund to LESSEE of the rental fee paid to the CITY by LESSEE prorated to the date of CITY's acceptance of the removal of the LESSEE's FACILITIES. In the event of termination by either party, LESSEE shall immediately cease all work being performed under this LEASE, excepting only that work necessary for LESSEE to remove all equipment and repair the PREMISES in accordance with Section II(B). B. SURRENDER OF PREMISES LESSEE shall remove all LESSEE Facilities at its sole expense upon cancellation, expiration or earlier termination of this Lease. LESSEE shall repair • any damage to the PREMISES caused by such removal and shall return the PREMISES to the 3 • condition which existed on the Commencement Date,reasonable wear and tear and damages beyond the control or without the fault or neglect of LESSEE excepted. If LESSEE fails to remove the Facilities within thirty(30) days of the termination or expiration of this LEASE, CITY may remove and store the Facilities at LESSEE's sole cost and expense. If LESSEE does not claim the Facilities within thirty(30)days following said removal, and provided that CITY has given LESSEE and any third party financing entity thirty(30) days prior written notice, the Facilities shall be deemed abandoned and City May dispose of the Facilities. LESSEE shall notify CITY of the name and address of the third party financing entity for notice purposes herein and the CITY will be notified of any changes with respect to said entity and its address. LESSEE's obligation to observe and perform the covenants of this paragraph shall survive the end of this Lease. C. LIEN RIGHTS CITYwaives any lien rights it may have concerning the Facilities which are deemed LESSEE's personal property and not fixtures, and LESSEE has the right to remove the same at any time without CITY consent. CITYacknowledges that LESSEE has entered into a financing arrangement including promissory notes and financial and security agreements for the financing of the Facilities(the"Collateral")with a third party financing entity (and may in the future enter into additional financing arrangements with other financing entities). In connection therewith, CITY(i) consents to the installation of the Collateral; (ii)disclaims any interest in the Collateral, as fixtures or otherwise; and(iii) agrees that the Collateral shall be exempt from execution, foreclosure, sale, levy, attachment, or distress for any rent due or to become due and that such Collateral may be removed at any time without recourse to legal proceedings, except as when deemed abandoned pursuant to Section II, Paragraph B of this Lease. • D. ACCESS TO IMPROVEMENTS 1. LESSEE shall have the right(but not the obligation) at any time following the full execution of this Lease and prior to the Commencement Date, to enter the PREMISES for the purpose of making necessary inspections and engineering surveys (and soil tests where applicable) and other reasonably necessary tests (hereinafter singularly and collectively referred to as "Tests") to determine the suitability of the PREMISES for LESSEE's Facilities(as defined herein) and for the purpose of preparing for the construction of LESSEE's Facilities. During any Tests or pre- construction work, LESSEE will have insurance as set forth in Section IV, B,4, Insurance. LESSEE will notify CITY of any proposed Tests or pre-construction work and will coordinate the scheduling of same with CITY. If LESSEE determines that the PREMISES are unsuitable for LESSEE's contemplated use, then LESSEE will notify CITY and this Lease will terminate. 2. LESSEE has the right to construct,maintain and operate on the PREMISES radio communication facilities, including but not limited to, radio frequency transmitting and receiving equipment,batteries, utility lines, transmission lines, radio frequency transmitting and receiving antennas and supporting structures and improvements(hereinafter referred to as"Facilities"). In connection therewith, LESSEE has the right to do all work reasonably necessary to prepare, add, maintain and alter the PREMISES for LESSEE's communications operations and to install utility lines and transmission lines connecting antennas to transmitters and receivers. All of LESSEE's construction and installation work shall be performed at LESSEE's sole cost and expense and in good 4 • workmanlike manner. Title to LESSEE's Facilities and any equipment placed on the PREMISES by LESSEE shall be held by LESSEE. All of LESSEE's Facilities shall remain the property of LESSEE and are not fixtures. LESSEE has the right to remove all LESSEE's Facilities at its sole expense on or before the expiration or termination of this Lease. 3. At no charge to LESSEE, CITY shall provide access to the PREMISES to LESSEE, LESSEE's employees, agents, contractors and subcontractors five(5) days a week during working hours and on other days and times by special arrangement with CITY. Not withstanding the foregoing, in the event of an emergency, Lessee shall have access to the PREMISES at all hours, seven (7)days a week. Twenty-four hour emergency access is available through County Communications. CITY represents and warrants that it has full rights of ingress and egress from the PREMISES, and hereby grants such rights to LESSEE to the extent required to construct, maintain,install and operate LESSEE's Facilities on the PREMISES. LESSEE's exercises of such rights shall not cause undue inconvenience to CITY,nor shall it compromise the security of CITY's adjoining Site. 4. CITY shall maintain all access roadways from the nearest public roadway to the PREMISES in.a manner sufficient to allow access. CITY shall be responsible for maintaining and repairing such roadways, at its sole expense, except for any damage caused by LESSEE or LESSEE's agents or assigns. If LESSEE or LESSEE's agents or assigns cause any such damage,LESSEE shall promptly repair same. 5. LESSEE shall have the right to install utilities,at LESSEE's expense, and to • improve the present utilities on or near the PREMISES (including,but not limited to the installation of emergency back-up power). Subject to CITY's approval of the location, which approval shall not be unreasonably withheld, LESSEE shall have the right to place utilities on(or to bring utilities across) CITY's Property in order to service the PREMISES and LESSEE's Facilities. 6. LESSEE shall fully and promptly pay for all utilities furnished to the PREMISES for the use, operation and maintenance of LESSEE's Facilities. III. RENT A. BASIC RENT 1. Upon the Commencement Date, LESSEE shall pay to CITY, as rent,the sum of one thousand eight hundred dollars ($1,800.00)per month. If the Commencement Date is other than the first day of a calendar month, LESSEE may pay on the first day of the Term the prorated Rent for the remainder of the calendar month in which the Term commences, and thereafter, LESSEE shall pay a full month's rent on the first day of each calendar month, except that payment shall be prorated for the final fractional month of this Lease, or if this Lease is terminated before the expiration of any month for which Rent should have been paid. 2. These amounts will be due and payable on or before the first day of each month • during the term of this Lease. The rent will be paid in advance to the Department of Finance, City of 5 Cupertino, 10300 Tone Avenue, Cupertino, CA 95014, without prior demand and without any • abatement, deduction or setoff. B. LATE PAYMENT CHARGE The rent shall be delinquent if not received by the close of the business day on the 10th of each calendar month. Such unpaid amounts of rent shall be subject to a late payment charge equal to ten percent(10%) of such unpaid amounts. This late payment charge is intended to compensate CITY for its additional administrative costs resulting from LESSEE's failure, and has been agreed upon by CITY and LESSEE, after negotiation, as a reasonable estimate of the additional administrative costs which will be incurred by CITY as a result of LESSEE's failure; the actual cost being impossible to ascertain at the time of this Lease. This late payment will constitute liquidated damages due the CITY and will be paid to CITY together with such unpaid amounts. Acceptance of the payment of this late charge will not constitute a waiver by CITY of any default by LESSEE under this Lease. C. ADJUSTMENT OF RENT The rent in subparagraph A above will be adjusted according to this paragraph notwithstanding any provision in that subparagraph to the contrary: 1. Rent shall be increased on each anniversary of the Commencement Date by an amount equal to Five Percent(5%)of the rent for the previous year. IV. COVENANTS AND CONDITIONS A. CITY COVENANTS 1. Quiet Possession LESSEE, paying the said rent and performing the covenants and Leases herein, shall and may at all 1:imes during the said term peaceably and quietly have, hold and enjoy the said PREMISES for the term thereof. 2. Assignment and Subleasine, The parties agree that the expertise and experience of LESSEE are material considerations inducing the CITY to enter into this LEASE. LESSEE shall not assign, sell, Lease, merge,consolidate or transfer any interest in this LEASE nor the performance of any of LESSEE's obligations herein,without prior written consent of the CITY, and any attempt by LESSEE to so assign this LEASE or any rights, duties or obligations arising herein shall be void and of no effect. The consent of the CITY will not be unreasonably withheld. Notwithstanding the foregoing, LESSEE shall have the right to assign its rights under this LEASE without the consent of the CITY to any of its subsidiaries or affiliates or its parent company or to any successor in interest or entity acquiring fifty-one percent(51%) or more of its stocks or assets, provided however, that LESSEE shall not be released from any obligation under this LEASE without the written consent of the CITY. Additionally,Lessee may assign,mortgage,pledge, hypothecate or otherwise transfer without consent its interest in this Lease to any financing entity, or agent on behalf of any financing entity to whom Lessee (i) has obligations for borrowed money or in respect of guaranties thereof, (ii) has obligations evidenced by bonds, debentures, notes or similar instruments, or (iii) has obligations under or with respect to letters of credit,bankers acceptances and similar facilities or in respect of guaranties thereof. 6 • 3. Hazardous Waste CITY represents and warrants that any activity concerning Hazardous Materials on the Site and the PREMISES which CITY and/or its agents undertakes or permits to be undertaken by other Lessees,Licensees or Permittees of CITY will be done in accordance with all local, state and federal regulations govern[ng the proper use, storage, transportation and disposal of said materials. In addition to the indemnity provided in section IVB4(b), CITY shall indemnify,defend,protect and hold LESSEE harmless from and against any and all claims, loss, proceedings, damages, causes of action, liability,costs or expenses (including attorney's fees) arising as a result of any Hazardous Materials which exist within the property, common areas,building or PREMISES as of the date first written above and any Hazardous Materials which are present within the property, common areas,building or PREMISES after said date which are not the result of the activities or omission of LESSEE. Notwithstanding the foregoing, nothing herein is intended to obligate LESSEE to bring the PREMISES into compliance with applicable requirements,ordinances and statutes unless such compliance is triggered by LESSEE's use,operations or LESSE:E's Facilities constructed upon the PREMISES. Not withstanding any other provision of this Lease, LESSEE relies upon the representations stated herein as a material inducement for entering into this Lease. B. LESSEE COVENANTS 1. Compliance with Law LESSEE agrees, at its sole cost and expense,to comply • with all the requirements, ordinances and statutes now in force, or which may hereafter be in force, of all municipal,county, state and federal authorities, pertaining to the said PREMISES, or the operations conducted thereon. 2. Taxes LESSEE agrees to pay before delinquency all taxes, adjustments, and fees assessed or levied upon LESSEE or the Leased PREMISES, including the land and any buildings, structures, machines, appliances or other property or improvements erected, installed or maintained by LESSEE or by reason of the business or other activities of LESSEE upon or in connection with the Leased PREMISES. LESSEE recognizes and agrees that this Lease may create a possessory interest subject to property taxation, and that LESSEE may be subject to further payment of property or possessory interest taxes without any compensatory reduction in rent due to the CITY. 3. Hazardous Waste LESSEE shall not bring any hazardous materials onto the PREMISES except for those contained in its back-up power batteries(lead-acid batteries) and common material used in telecommunications operations, e.g., cleaning solvents. LESSEE will treat all hazardous materials brought onto the PREMISES by it in accordance with all Federal, State and Local laws and regulations. In addition to the indemnity provided in section IVB4(a),LESSEE shall indemnify, defend, protect and hold CITY harmless from and against any and all claims, loss,proceedings, damages, causes of action, 7 • liability, costs or expenses(including attorney's fees) arising as a result of any Hazardous Materials which exist within the property, common areas,building or PREMISES as a result of the activities or omission of LESSEE. 4. Indemnity a. LESSEE shall indemnify, defend, and hold harmless CITY, its employees, successors and assigns from and against any and all loss,cost,claim, liability, action, damage, injury to or death of any person(hereinafter referred to as "Claims"), including reasonable attorney's fees, occurring on the PREMISES and arising out of or connected with the negligence or willful misconduct of LESSEE, its agents or contractors, except for Claims arising out of the negligence or willful misconduct of CITY, its agents or contractors, breach of any duty or obligation by CITY under this Lease, or any condition relating to the PREMISES which LESSEE has no obligation to repair or maintain. b. CITY shall indemnify, defend, and hold harmless LESSEE, its employees,successors and assigns from and against any and all loss,cost,claim, liability,action, damage, injury to or death of any person(hereinafter referred to as"Claims"), including reasonable attorney's fees, arising out of or connected with negligence or willful misconduct of CITY, its agents or contractors, except for Claims arising out of the negligence or willful misconduct of LESSEE, its agents or contractors, violation of any law by LESSEE, its agents or contractors,breach of any duty or obligation by LESSEE under this Lease, or any condition relating to the PREMISES which CITY has • no obligation to repair or maintain. c. The foregoing indemnity in a. and b. will survive the termination of this Lease. 5. Insurance Coverage LESSEE, at LESSEE's sole cost and expense, shall procure and maintain for the duration of this LEASE, including any extensions of this LEASE and during the period that LESSEE is performing any work upon the expiration or earlier termination of this LEASE to remove the equipment from CITY property, insurance, naming CITY as an additional insured, against claims for injuries to persons or damage to property which may arise from, or in connection with,the performance of the work or provision of SERVICES hereunder by LESSEE, its agents, representatives, employees or subcontractors. a. Minimum Scope of Insurance The coverage shall include Commercial General Liability together with Broad Form Comprehensive General Liability including explosion, collapse and underground; Automobile liability including Code 1 (any auto), Code 2 (owned autos), Code 8 (hired autos) and Code 9 (nonowned autos); Workers' Compensation as required by the California Labor Code and Employers Liability insurance. b. Minimum Limits of Insurance LESSEE shall maintain limits no less than two million dollars ($2,000,000)combined single limit per occurrence for bodily injury, personal injury and property damage in Commercial General Liability; three million dollars ($3,000,000)in 8 aggregate for public liability and five hundred thousand dollars ($500,000)combined single limit per • accident for bodily injury and property damage in Automobile Liability; and Workers' Compensation and Employers Liability limits of one million dollars($1,000,000)per occurrence. c. Deductibles and Self-insured Retention Any deductibles or self-insured retention must be declared to, and approved by the CITY. d. Policy Provisions The following provisions must be included in the policies: (1.) The CITY of Cupertino, its officers, employees,agents and contractors are to be covered as additional insured regarding liability arising out of activities performed by or on behalf of, LESSEE,products and completed operations of LESSEE,premises owned,Leased or used by LESSEE, and vehicles owned, Leased,hired or borrowed by LESSEE. The coverage shall contain no special limitations on the scope of protection afforded to the CITY, its officers, employees, agents and contractors. (2.) LESSEE's insurance coverage shall be primary insurance as respects the CITY, its officers, employees, agents and contractors. Any insurance or self-insurance maintained by the CITY, its officers, employees, agents or contractors shall be excess of LESSEE's insurance and shall not contribute with it. • (3.) Any failure to comply with reporting provisions of the policies by LESSEE shall not affect coverage provided the CITY, its officers, employees, agents or contractors. (4.) All policies required by this LEASE shall be endorsed to state that coverage shall not be suspended, voided,canceled or reduced in limits except after thirty(30) days prior written notice has been given to the CITY. e. Acceptability of Insurers The insurance carrier shall provide proof of their ratings. All ratings shall be a minimum of"Best A-7." f. Verification of Coverage The CITY shall provide all required forms. LESSEE shall furnish CITY with certificates of insurance and with all endorsements affecting coverage required by this LEASE. The certificates and endorsements for each policy are to be signed by a person authorized by that insurer to bind coverage on its behalf. g. Subcontractors LESSEE shall either include all subcontractors as insured under its policies or shall require all subcontractors to meet CITY's requirements listed above. 6. Maintenance and Repairs LESSEE agrees to assume full responsibility for the operation,maintenance, and repairs of the PREMISES throughout the term hereof without expenses to 9 • the CITY unless otherwise specified herein, and to perform all repairs and replacements necessary to maintain and preserve the PREMISES in good order, in a safe,healthy and sanitary condition, in manner reasonably satisfactory to CITY in compliance with all applicable regulations and laws. LESSEE agrees that CITY shall not be required to perform any maintenance,repairs, or services, or to assume any expense not specifically assumed herein, in connection with the PREMISES. Upon expiration of this Lease, LESSEE will surrender the PREMISES to CITY in good order and condition. 7. Nondiscrimination LESSEE agrees not to discriminate in any manner against any person or persons on account of race,marital status, sex, religious creed, color, ancestry, or national origin in LESSEE's use of the premises, including,but not limited to, the providing of goods, services, facilities,privileges, advantages and accommodations, and the obtaining and holding of employment. 8. Utility Costs LESSEE agrees to order,obtain and pay all utilities, including but not limited to water, gas, electricity,telephone. communications services, sanitary and drainage services, and service installation charges on any improvements made by LESSEE on the PREMISES. LESSEE shah also secure and utilize waste disposal services for the PREMISES in accordance with applicable local and state ordinances. All utilities on the Site shall be underground. In the event utilities to the PREMISES are furnished by the CITY and are measured by privately installed sub-meters, LESSEE shall pay as additional rent the cost of utility service provided to the PREMISES and attributable to LESSEE's use("Utility Charge"). LESSEE shall pay the • estimated cost of the Utility Charge monthly in advance together with the monthly Rent. The parties estimate the Utility Charge at the Commencement Date to be Two Hundred Fifty Dollars ($250.00)per month. During the lease term, at CITY's request(which request shall not be more frequent than once every twelve months), LESSEE shall calculate the actual Utility Charge for the immediately preceding twelve(12)months based on the readings from the privately installed sub-meters at CITY's Property. If the actual Utility Charge varies from the estimated Utility Charges paid,the parties shall adjust the Utility Charge to reflect LESSEE's actual usage. 9. Waste, Damage or Destruction LESSEE agrees to give notice to CITY of any fire or damage that may occur on the leased PREMISES within ten(10) days of such fire or damage. LESSEE agrees not to commit or suffer to be committed any waste or injury or any public or private nuisance, to keep the PREMISES clean and clear of refuse and obstructions, and to dispose of all garbage, trash and rubbish in a manner reasonably satisfactory to the CITY. If the PREMISES is destroyed or damaged so as in LESSEE's judgment, to hinder its effective use of CITY's property, LESSEE may elect to terminate this Lease as of the date of the damage or destruction by so notifying CITY in writing no more than 30 days following the date of damage or destruction. In such event, all rights and obligations of the parties which do not survive the termination of this Lease shall cease as of the date of the damage or destruction. 10. Contingency It is understood by LESSEE and CITY that this Lease is fully contingent upon LESSEE obtaining final development approvals for construction of improvements on • the leased land from the CITY. In the event that such governmental approvals are not obtained on or 10 • before December 31, 2000, after due diligence by LESSEE, LESSEE shall have the right to terminate this agreement within 30 days by notifying CITY in writing. If terminated, LESSEE shall have no further obligation to pay rent or comply with any other provision of this Lease. 11. Interference with Communications LESSEE's facilities shall not disturb the communications configurations, equipment and frequency which exist on CITY's property on the Commencement Date(hereinafter referred to as "Pre-existing Communications"), and LESSEE's facilities shall comply with all non-interference rules of the Federal Communications Commission (FCC). CITY shall not permit the use of any portion of the Site in a way which interferes with the communications operations of LESSEE described in Paragraph I. A., above. Such interference with LESSEE's communications operations shall be deemed a material breach by CITY, and CITY shall have the responsibility to terminate said interference within a reasonable time of LESSEE's written notice to CITY. In the event any such interference does not cease within ten days time,the parties acknowledge that continuing interference will cause irreparable injury to LESSEE, and therefore, LESSEE shall have the right to terminate the Lease immediately upon notice to CITY. Notwithstanding the foregoing, Pre-existing Communications operating in the same manner as on the Commencement Date shall not be deemed interference. 12. Legal Proceedings LESSEE agrees that should it become necessary for CITY to commence legal proceedings to collect rent,recover possession, or enforce any other provision of this Lease,the prevailing party will be entitled to legal costs and expenses in connection therewith, including reasonable attorney's fees as determined by the court. The parties agree that the laws of the • State of California shall be used in interpreting this Lease and will determine all rights and obligations hereunder, and it is agreed that this Lease is executed in Cupertino, CA. 13. Electromagnetic Fields LESSEE shall comply with all present and future laws, orders and regulations relating to Electromagnetic Fields(EMFs),and the American National Standards Institute(ANSI) standards. Without limiting the provision of LESSEE's indemnity contained herein,LESSEE, on behalf of itself and its successors and assigns, shall indemnify the CITY from and against all claims of personal injuries due to EMFs to the extent such personal injuries are caused by LESSEE's facilities on the Premises. C. RESTRICTIVE CONDITIONS 1. Administration and Notices CITY's agent for control and administration of this Lease shall be the Director of Public Works o f the CITY of Cupertino, and any communication relative to the terms or conditions or any changes thereto or any notice or notices provided for by this Lease or by law to be given or served upon CITY may be given or served by certified letter deposited in the United States mails,postage prepaid, and addressed as indicated below,. Any notice or notices provided for by this Lease or by law to be given or served upon LESSEE may be given or served by depositing in the United States mails,postage prepaid, a certified letter addressed to said LESSEE at the PREMISES or at such other address designated in writing by LESSEE, or may be personally served upon them or any person hereafter authorized by them to receive such notice. Any notice or notices given or served as provided herein shall be effectual and binding for all purposes upon the 11 • principals of the parties so served upon personal service or forty-eight(48)hours after mailing in the manner required herein: CITY: Director of Public Works City of Cupertino 10300 Torre Avenue Cupertino, CA 95014 LESSEE: Nextel of California, Inc. 1255 Treat Blvd., Suite 800 Walnut Creek,CA 94596 Attention: Property Management with a copy to:Nextel Communications 2001 Edmund Halley Drive Reston, VA 20191-3436 Sixth Floor, Mail Stop 6E630 Site Leasing Services; Contracts Manager CITY or LESSEE may, from time to time, designate any other address for this purpose by written notice to the other party. • 2. Entry and Inspection CITY reserves the right to enter the PREMISES for the purpose of viewing and ascertaining the condition of the same, or to protect its interests in the PREMISES, or to inspect the operations conducted thereon. In the event that such entry or inspection by CITY discloses that the PREMISES are not in a safe, healthy and sanitary condition, CITY shall have the right, after thirty(30)days written notice to LESSEE, to have any necessary maintenance work done for and at the expense of LESSEE and LESSEE hereby agrees to pay promptly and any all reasonable costs incurred by CITY in having such necessary maintenance work done in order to keep the PREMISES in a safe, healthy and sanitary condition. Failure to reimburse CITY for the reasonable costs incurred by CITY within thirty (30)days of completion of said maintenance work shall constitute a default of this Lease. 3. Holding Over. This Lease shall terminate without further notice at expiration of the term. Any holding over by LESSEE after expiration shall be under the same terms of this Lease, as may be amended, and shall not constitute a renewal or extension or give LESSEE any rights in or to the PREMISES except as otherwise expressly provided in this Lease. 4. Merger The voluntary or other surrender of this Lease by LESSEE, or a mutual cancellation thereof, shall not work a merger and shall, at the option of CITY, terminate all or any existing subleases or subtenancies or may, at the option of CITY, operate as an assignment to it of any or all such subleases or subtenancies. 12 • 5. Reservation of CITY Rights CITY hereby reserves all rights , title and interest in any and all gas, oil,minerals and water beneath said Leased premises. CITY shall have the reasonable right to enter the PREMISES for the purpose of making repairs to or developing municipal services. CITY hereby reserves the right to grant and use such easements or establish and use such rights-of-way over, under, along and across the PREMISES for utilities, thoroughfares, or access as it may deem advisable for the public good. Provided, however, CITY shall not unreasonably interfere with LESSEE's use of the PREMISES and will reimburse LESSEE for physical damages, if any, to LESSEE's facilities located on the PREMISES resulting from CITY's exercising the rights retained in this paragraph. Such reimbursement may include a reduction in the annual rent proportionate to the amount of any physical damage as reasonably determined by CITY. CITY shall pay the costs of maintenance and repair of all CITY installations made pursuant to the rights reserved herein. All utilities shall be underground. 6. Time is of the Essence Time is of the essence of each and all of the terms and provisions of this Lease and this Lease shall inure to the benefit of and be binding upon the parties hereto and any successor of LESSEE as fully and to the same extent as though specifically mentioned in each instan_:e, and all covenants, stipulations and agreements in this Lease shall extend to and bind any assigns or sublessees of LESSEE. 7. Waiver The waiver by CITY of any term, covenant, or condition herein contained shall not be deemed to be a waiver of such term, covenant or condition,or any subsequent breach of the same or any other terms, covenant or condition herein contained. The subsequent acceptance of rent hereunder by CITY shall not be deemed to be a waiver of any preceding breach by LESSEE of any term, covenant or condition of this Lease, regardless of CITY's knowledge of such preceding breach at the time of acceptance of such rent. Failure on the part of CITY to require or exact full and complete compliance with any of the covenants, conditions or agreements of this Lease shall not be construed as in any manner changing the germs hereof and shall not prevent CITY from enforcing any provision hereof. S. Recordation LESSEE may, at its cost,record this Lease or a memorandum of this Lease. 9. Title. a. CITY warrants that it has full right,power, and authority to execute this Lease; CITY further warrants that LESSEE shall have quiet enjoyment of the PREMISES during the Term of this Lease or any Renewal Term. b. LESSEE has the right to obtain a title report or commitment for a Leasehold title policy from a title insurance company of its choice. If, in the opinion of LESSEE, such title report shows any defects of title or any liens or encumbrances which may adversely affect LESSEE's use of the PREMISES, LESSEE shall have the right to terminate this Lease immediately upon written notice to CITY. 13 10. Captions. The captions of the various articles and paragraphs of this Lease are • for convenience and ease of reference only and do not define, limit, augment, or describe the scope, content, or intent of this Lease or of any part of this Lease. 11. Entire Agreement This Lease contains the entire agreement between the parties. No promise,representation,warranty, or covenant not included in this Lease has been or is relied on by either party. Each party has relied on its own examination of this Lease,the counsel of its own advisors, and the warranties, representations, and covenants in the Lease itself. The failure or refusal of either party to inspect the PREMISES,to read the Lease or other documents, or to obtain legal or other advice relevant to this transaction constitutes a waiver of any objection,contention,or claim that might have been based on such reading, inspection,or advice. 12. Severability The invalidity or illegality of any provision of this Lease shall not affect the remainder of the Lease. 13. Successors Subject to the provisions of this Lease on assignment and subletting, each and all of the covenants and conditions of this Lease shall be binding on and shall inure to the benefit of the heirs, successors, executors, administrators, assigns, sublessees, tenants, subtenants,and personal representatives of the respective parties. IN WITNESS WHEREOF,this Lease agreement is executed by CITY, acting by and through the Mayor, and by LESSEE, acting by and through its lawfully authorized officers. • APPROVED AS TO FO' . , y City Attorney Charles Kilian CITY OF CUPERTINO , ,________. ....A7b BY TIT John Statton, Mayor NEXTEL OF CALIFORNIA, INC. BY n9apulLg.fist— . MAR r( NE LSO TITLE Mark B. Nelson • Vice President Ai . 2210 VICE PPESI"]ENT Or:!A GINEE INCi ORIGINAL • EXHIBIT "A" CA-2151B/Hwy 280/87 10555 Mary Avenue Cupertino, CA 95014 APN: 326-06-052 PA -. etti. 1 580 00 at a pilot es the Masterly limo of,,tbat certain 40 onto tract of land crLbod In the Deed from Lloyd L. ',Mills, at ux, to Joe A. Sorel, at us dated February 4, 1943, recorded 7abreary 10, 1943 la toot 1243 0. 8., pegs , Santa Clara County &words, i,istaut &hareem South 0 OS' gust 2320. fast trot: ea iron pipe is the centerline of 1000staad load; • - thence South 0' 04' Nast along the Westerly line of said 40 acre trait 32.011 feet to an iron pipe at the Soutbeasterly corner thereof; thence South 89. 44' Nast along the southerly Nine of said 40 acts tract 39.32 tee: .o as iron pipe at the Southvsstsrly corner thereof; • thanes North 0. 08' 30" Vest along the Westerly line of said 40 acre Duet • 32.09 testa; thence North 89° 44' East 651.34 Last Co the point of beginning. • • approximately 2.00 acres and N►eiug a portion of the Southwest 1/4 o Section 11 Township 7 South, Zsay;a 2 Vest, X. D. S. i If. 2 • • MINX • at a point on t)ot Zostarly lima of Cult Certain 40 morn tract of laud bed is the Deed from Lloyd L. Edwards, st cx, to Joe A. Sorel, at ox. dated February 4, 1943, recorded.Pobruary 10, 1945, is look 1263 O. 2., pate 2 , Santa Clara County Ricards, distant thereon South 06 08' last 2466.4 feat !tom as iron pipe is the centerline of Kowatsad Road; thecae South 0° 08' East along the Easterly lima of said 40 acme tract 36.00 set to the Sorthsastsrly corner of .bat eartala 2 aura tract of laud des; is tba Deed hoe Jos A. Sorel, at ass to M. J*hovieh. et sac, dated Clara County Fabcaa y 10, 1941 lo look 1369 4. I., pogo 37, Santa Crs Coty laasrds; u thaws south =9. 44' Vest along the Norcharty lima of said 2 acre tract Sl.S4 feet to the $orthwatarly corner thereof on the Vestatrly line of. , • said am tract; . .g thence North 89. 44' West along said !wet mood line $6 foot; runs 'thence North 19' 44' last end parc11a1 with the lortharly lima of said 2 aerie. tract 699.35 feet to'thc point of beginning. Pc , INati eppsoxiaatsly 0.15 acrep and being a portior. of •'am Southwest 1/4 of itc • - 11, Tasnship 7 South, tango 2 West, K. D. S. i X. • ••• TJGW PARC5LS 1 aa4 2 all that portion !Ansa daiaiibed as fusels i cad 2 the Deed trot K. Jsboviab, at use to the State of California, recorded Acs 12, 1964 in Soot 6619, 0. l., Psga 556, Santa Clara County $taoords, sad • more particulaxy dascrtbed as follows: �• A • at the fouthamtorly corner of tho 2.00'acxxe parcel of lead oosveyed � w to X. sbovieb, et us, by Dead rsrded February 18, 1941 is Nook 1369 of t�i�}�,�.", Ottic Records, pigs 37; • . toes; slam the Southerly lima of said parcel South 39' 1S' 33" fast 133.92 • =�-7° • Iran a tangnat,tleat boars North 16. 12' 43" Vast, along a eerm to the right h a radius of 1447.00 feet, through an angle of 4. 33' 21', so set , -_---- low of 11.3.90 fast' . tron a tango= that bears North 12. 16' 35" Vest, along a serve to the- right ft a radius of 600.00 foot throoala an =give! 7. 21' 366, as ass length • • EXHIBIT "A" CA-2151B/Hwy 280/87 10555 Mary Avenue Cupertino, CA 95014 APN: 326••06-052 ot 77.0 loot to the Southerly Una of the partial of land convoyed to the Stet* • California by Deed tscorda4 October 22, 1939 in look 4382 of Official **cords page 4794 • • aloes lost said Urea Worth 99' 13' 33" Hest 91.69 toot to the Esstarly lino of the psr;col of lead eoavayed to the State of Califoesia by Dood recorded Deccebe 1, 1960 in look 4998 of Official Itrcard., page 436; t• • alms Last said lino South 0' 52" 03" boot 111.09 foot tip the point o f -- • emonto •• • 0.474 of as serer. more or leas. As to • 1 above, this e&Mtvt y:encc in made for the pur;c wwa ur * rrrdrwy and the for hereby rulesesoe and tolinSquisihus to rho 8rsatun any and ell abettor rights of •cools, appurtasuent ta ranter's remaining- property, is sad to said r.eersy. • PARCIL C@041W • at the Southsastsrly corner of the 2.00 acre parcel of land corvoyed to X. J eh, at u:, by Deed recorded Yabrusry 18, 1948 in look 1369 of Offia leaords. page 37; t aloes the Southerly lino of said pascal North 89" 13' 33' Vest 30.00 teats Uorth•O' 33' 31" Seat 188.09 foss: to.the line cosmos' to the laads, now or ••reedy, of said N. Jahovie h. it Luc. end of Sue fermi. of sal theme aloes list as3.d line South 89' 13' 33" East 30.00 last to the lino cession to the . • .s, soy or foruarly, of said M. Jakovieh;•.c-•eats-and of Sereas-3.- Nat- •• . . et al; t. •• gloss last said lino South 0' 32' 31' Neat 153.09 feet to the point of -• • •t. • .. • 0430 of an sore, more or less, ma • and d1aeanC5S mead in the above descriptions are ea the California Door System, Tons 3. Multiply the above distsaoas by 1.0000495 to obtain ;mood el distoaces. mirnms arm { EXHIBIT "B" CA-2151B/Hwy 280/87 4 ti..) 10555 Mary Avenue Cupertino, CA 95014 I c'N APN: 326-06-052 Ti V L` X L ;y - z Z -/ till' _ 4 . . ■ 0 � „ g A-- • C .- = N oIE. LJ \ : OA - W ul w CD la 0 plimi cA In INITIALS -� N to Z C) mit L RESOLUTION NO. 00-184 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO AUTHORIZING EXECUTION OF ANTENNA SITE LEASE AGREEMENT BETWEEN THE CITY OF CUPERTINO AND NEXTEL OF CALIFORNIA, INC., A DELAWARE CORPORATION, dba NEXTEL COMMUNICATIONS WHEREAS, there has been presented to the City Council an Antenna Site Lease Agreement for the lease of facilities located at the Cupertino Service Center, 10555 South Mary Avenue;and WHEREAS, the provisions, terms, and conditions of the aforementioned agreement have been reviewed and approved by the City Attorney and the Director of Public Works. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Cupertino hereby authorizes the Mayor and the City Clerk to execute said agreement on behalf of the City of • Cupertino. PASSED AND ADOPTED at a regular meeting of the City Council of the City of Cupertino this 19th day of June, 2000,by the following vote: Vote Members of the City Council AYES: Burnett, Chang,James, Lowenthal, Statton NOES: None ABSENT: None ABSTAIN: None ATTEST: APPROVED: /s/Kimberly Smith /s/John Statton City Clerk Mayor, City of Cupertino DOCUMENT: 20111246 Pages: 10 " I_ Fees. . . 45.00 Taxes. . . Recording Requested by and Copies. . en Recorded Mail to: AMT PAID 45.00 wri L 1-7?e�J•C REGINA ALCOMENDRAS RDE 4 008 6&,(j7) 66rK1201 SANTA CLARA COUNTY RECORDER 1/27/2009 ,I 6j7 / .- .e7 0-- Recorded at the request of 10:00 AM a• 600 Mortgage Company • TITLE OF DOCUMENT 0 Ss-177 77-Le..„--cf .,---12 C1 (,iiSS c. (),�6 Documentary Transfer Tax:I n C]Computed on full value of property conveyed or 0 al less reng.ln mbrances Signature of Declarant 0 Unincorp ted Area 11:4-City of_ @ u f- i n O Parcel Number ,Sc)(o-- 0 C.,° 0 cJ Mail TaxStatements To: /Owe( ,2f7h/y Z ac 6/39/ Spr i fizt,,t waq Overland Pk k, k5 (,1 6/ EXECUTION COPY ..wt- 3a u-O( -os:� ASSIGNMENT AND ASSUMPTION OF GROUND LEASE L. cASe "NJ © i:)■'\S e,r e. e 5s *hop 35-vices-s THIS ASSIGNMENT AND ASSUMPTION OF GROUND LEASE("Assignment")is made, entered into and effective as of this 23 day of September,2008("Transfer Date"),by Nextel of California, Inc., a Delaware corporation,l-.aving an address at 6391 Sprint Parkway, Mailstop KSOPHT0101-z2650, Overland Park,Kansas 66251-2650("Assignor"),to Tower Entity 7 LLC,a Delaware limited liability company. having an address at 6391 Sprint Parkway, Mailstop KSOPI-IT0101-72650, Overland Park,Kansas 66251-2650 ("Assignee").The notice address for the Assignee shall be: Tower Entity 7 LLC do TowerCo Acquisition LLC,5000 V 1 ystone Drive,Cary,North Carolina 27519. a-c U,vl Kt-L r Preliminary Statement: Pursuant to that certain Purchase and Sale Agreement dated as of July 23,2008 (as amended.modified and supplemented from time to lime, the "Purchase Agreement"),by and between TowerCo Acquisition LLC,the parties identified as sellers therein(including Assignor), Sprint Spectrum L.P.,as agent for such sellers and the"Tower Entities"(including Assignee) that become parties thereto,Assignor has,among other things,agreed to assign all its right,title and interest in and to the Ground Lease(as defined on Exhibit"A")to Assignee and to assign, transfer and convey to Assignee its right,title and interest in all Towers and Tower Related Buildings and Equipment located on the land demised under the Ground Lease(as such land is further described in Exhibit B(as so described, the"Real Property")). All capitalized terms not otherwise defined in this Assignment shall have the meanings ascribed thereto in the Purchase Agreement. In consideration of the mutual covenants contained in this Assignment, and other good and valuable consideration,the receipt and sufficiency of which is hereby acknowledged, Assignor and Assignee hereby agree as follows: 1. ASSIGNMENT. As of the Transfer Date,Assignor for good and valuable consideration as recited in the Purchase Agreement,the receipt and sufficiency of which are hereby acknowledged,does hereby convey, assign, contribute and transfer all of its right,title, and interest in,to and under the Ground Lease, and the leasehold,license or other interest created thereunder,to Assignee and its successors and assigns. 2. ACCEPTANCE OF ASSIGNMENT. Assignee as of the Transfer Date,hereby accepts the foregoing assignment of the Ground Lease and assumes all of the Assumed Liabilities arising under or pursuant to the Ground Lease. t-cp Q� 1W re SS I 1D 5-Ss- f31 ar-t 14 wen c i-e- H C L4 Qr+;r1 o, C 14 45011-1 CA2 156/CA2317 //37 9 y.3 DeAnza/Stevens Creek v L 3. APPURTENANT PROPERTY,EASEMENTS,AND IMPROVEMENTS. Assignor hereby grants,bargains,conveys, contributes and transfers to Assignee, its successors and assigns forever, all of Assignor's right,title and interest(subject to Permitted Liens)in and to (i)all appurtenant property and rights relating to the Real Property,(ii)all easements and rights of way benefiting the Real Property, (iii)all Towers located on the Real Property and(iv) all Tower Related Buildings and Equipment located on the Real Property and all other Tower Related Assets located on or relating to the Real Property;excluding,in the case of clauses(i) through(iv), any and all Excluded Assets. 4. BINDING EFFECT. This Assignment will be binding on and inure to the benefit of the parties herein,their heirs,executors,administrators, successors-in-interest and assigns. 5. GOVERNING LAW. This Assignment and its validity,construction and performance will be governed by and construed in accordance with the internal laws of the State of Delaware,without regard to principles of conflicts of laws,except to the extent mandatorily governed by the laws of the state in which the Real Property is located. 6. COUNTERPARTS. This Assignment may be executed in two or more counterparts,each of which will be deemed an original,but all of which together will constitute one and the same instrument. 7. PURCIIASE AGREEMENT. This Assignment is intended to implement the provisions of the Purchase Agreement and shall not be construed to enhance,extend or limit the rights or obligations of Assignor or Assignee(it being understood that Assignee will not be deemed to be assuming any Excluded Liabilities). No provision of this Assignment shall in any way modify the express provisions(including without limitation the warranties,representations, covenants,agreements,conditions or any of the obligations and indemnifications of the parties hereto with respect to the subject matter of the Purchase Agreement)set forth in the Purchase Agreement. To the extent any provision of this Assignment is inconsistent with the Purchase Agreement,the provisions of the Purchase Agreement shall control. 8. AMENDMENT. This Assignment may not be amended, waived or otherwise modified except by a written instrument signed by the parties hereto. THIS ASSIGNMENT has been executed by Assignor and Assignee effective as of the Transfer Date. [Signatures on following pages] CA2156/CA2317 2 DeAnza/Stevens Creek A Witnesses: ASSIGNOR: Nextel of California, Inc., a Delaware corporation B Print ame: V c-i Shf)Lg.r Ljz.0, Print N e: John F.Buchert Title: Assistant Secretary Print Name: en-I--ke.rirn.Q .le1nK�;nS State of New York County of New York The fore oin instr iment was acknowledged before me this If"day of September, 2008, by Jam ' an Assistant Secretary of Nextel of California, Inc., a Delaware corporation,on behalf of the company.The above-named individual is personally known to me or has produced a drivers license or passport as identification. Notary Pub lc Print Name: My Commission Expires: Notary Public.SO of New YOst No.OITA6171844 Qualified in New Yak C, ty Rion Expires Nor 19,2011 CA2156/CA2317 3 DeAnza/Stevens Creek ea ASSIGNEE: Tower Entity 7 LLC, a Delaware limited liability company By: 411, Print Name: V, �' _ , , Name: John F.Huebert Title: Assistant Secretary Print Name: i c4-1-het-,,� `1-e d� State of New York County of New York The foregoing instrument was acknowledged before me this iv.%day of September,2008, by John F.Buchert an Assistant Secretary of Tower Entity 7 LLC, a Delaware limited liability company, on behalf of the company. The above-named individual is personally known to me or has produced a drivers license or passport as identification. Notary Public Print Name: My CDmmission Expires: BRETTE TANNENBAUM Notary Public,Statso�York No.Qualified in New York Coun f Expires November 19,2011 CA2156/CA2317 4 DeAnza/Stevens Creek EXHIBIT "A" The Ground Lease That certain lease agreement(the"Ground Lease") dated June 14, 2000 by and between City Of Cupertino, as lessor, and Assignor, as lessee,with respect to that certain parcel of real property ("Real Property") located in the County of Santa Clara, State of CA, which Real Property is more particularly described on Exhibit"B"attached hereto. The Memorandum of the Ground Lease is recorded in Book ,Page_' or as Official Document/Instrument N cr ~— , in the Register's office of Santa Clara County, State of CA. ,i &I,K1t),-cA CA2156/CA2317 5 DeAnza/Stevens Creek Exhibit B Real Property A Leasehold Estate, said leasehold being a portion of the following described parent parcel: REAL PROPETY in the City of Cupertino, County of Santa Clara, State of California, described as follows: Being a potion of the Southwest quarter of Section 11, Township 7 South,Range 1 West, M.D.B. &M., and more particularly described as follows: PARCEL ONE: Beginning at the point of intersection of the Northerly line of that certain parcel conveyed to Joseph A. Corci,et ux,by Deed recorded April 19, 1955 in Book 3146 of Official Records, Page 300 with the Westerly line of that certain Parcel 5,as awarded to the State of California by Final Order of Condemnation entered in Case No. P7082 of the Superior Court of the State of California, in and for the County of Santa Clara, a Certified Copy of which was recorded January 5, 1965 in Book 6804 of Official Records, Page 315;thence along said Northerly line of said lands of sorci, South 89° 44; West 190.00 feet to the Easterly line of that certain Parcel One conveyed to the City of Cupertino, by Deed recorded July 23, 1964 in Book 6593 of Official Records, Page 135; thence, along said Easterly line of said conveyed to the City of Cupertino, South 0° 52' 31" West 178.50 feet to the Southeasterly corner thereof at a point in the Southerly line of said lands conveyed to Sorci; thence,along said last mentioned Southerly line, South 89° 44' East 20.00 feet to the Westerly line of that certain parcel conveyed to Joe Sorci, et ux, by Deed recorded January 24, 1958 in Book 3990 of Official Records, Page 172;thence along said Westerly line of said last mentioned lands,North 0° 08' 00"West 89.58 feet to the Northwesterly corner thereof; thence along the Northerly line of said last mentioned lands North 89°44' East 170.00 feet to said above mentioned Westerly line of lands conveyed to the State of California; thence along said Westerly line of said last mentioned land, North 0° 52' 31"East 89.58 feet to the point of beginning. PARCEL TWO: Beginning at the point of intersection of the Southerly line of that certain parcel conveyed to Joe Sorci, et ux, by Deed recorded January 24, 1958 in Book 3990, Official Records, Page 172, with the Westerly line of that certain Parcel 5,as awarded to the State of California by Final Order of Condemnation entered in Case No. P7082 of the Superior Court of the State of California, in and for the County of Santa Clara, a Certified Copy of which was recorded January 5, 1965 in Book 6804 of Official Records, Page 315; thence along said Southerly line and along the Westerly and Northerly lines of said lands of Sorci, South 89° 44' West 170.00 feet,North 0'' 08' West 89.58 feet and North 89° 44' East 170.00 feet to said Westerly line of said lands of the State of California; thence along said Westerly line of said last mentioned lands South 0° 52' 31" West 89.58 feet to the point of beginning. • PARCEL THREE: Beginning at a point on the Easterly line of that certain 40 acre tract of lands described in the Deed from Lloyd L. Edwards, et ux, to Joe A. Sorci, et ux, dated February 8, 1945, recorded in February 10, 1945 in Book 1243 O,R., Page 265, Santa Clara County Records,distant thereon South 0° 08' East 2520.46 feet form an iron pipe in the centerline of Homestead Road; running thence South 0° 08" East along the Easterly line of said 40 acre tract, 132.09 feet to an iron pipe at the Southeasterly corner thereof; running thence South 89°44"West along the Southerly line of said 40 acre tract, 659.52 feet to an iron pipe at the Southwesterly corner thereof; running thence North 0° 08' 30" West along the Westerly line of said 40 acre tract, 132.09 feet; running North 89°44' East 659.54 feet to the point of beginning. Being a portion of the Southwesterly `/a Section 11, Township 7 South, Range 2 West, M.D.B. & M. PARCEL FOUR: Beginning at a point on the Easterly line of that certain 40 acre tract of land described in the Deed from Lloyd L. Edwards, et ux,to Joe A. Sorci, et ux, dated February 8, 1945, recorded February 10, 1945 in Book 1243 O.R., Page 265, Santa Clara County Records, distant thereon South 0° 08' East, 2464.46 feet from an iron pipe in the centerline of Homestead Road; running thence South 0° 08' East along the Easterly line of said 40 acre tract, 56.00 feet to the Northeasterly corner of that certain 2 acre tract of land described in the Deed from Joe A. Sorci, et ux,to M. Jakovich,et ux, dated February 18, 1948, recorded February 18, 1948 in Book 1569 O.R., Page 37, Santa Clara County Records; running thence South 89° 44' West along the Northerly line of said 2 acre tract, 659.54 feet to the Northwesterly corner thereof on the 'Westerly line of said 40 acre tract; running thence North 0° 08' 30" West along said last named line, 56 feet; running thence North 89°44' East and parallel with the Northerly line of said 2 acre tract, 659.55 feet to the point of beginning. Being a portion of the Southwest 1/4 of Section 11, Township 7 South, Range 2 West, M.D.B. & M. Excepting from Parcels 3 and 4 all that portion thereof described as Parcels 1 and 2 in the Deed from M. Jakovich, et ux,to the State of California,recorded August 12, 1964 in Book 6619, O.R., Page 656, Santa Clara County Records, and being more particularly described as follows: Parcel 1: Commencing at the Southwesterly corner of the 2.00 acre parcel of land conveyed to M. Jakovich, et ux,by Deed recorded February 18, 1949 in Book 1569 in Official Records, Page 37; thence along the Southerly line of said.parcel, South 89° 15' 33" East 133.92 feet;thence from a tangent that bears North 16° 12' 43" West along a curve to the right with a radius of 1447.00 feet,through an angle of 4° 35' 21", an arc length of 115.90 feet;thence from a tangent that bears North 12° 16' 35" West, along a curve to the right with a radius of 600.00 feet through an angle of 7° 21' 34", an arc length of 77.07 feet to the Southerly line of the parcel of land conveyed to the State of California by Deed recorded October 22, 1959 in Book 4582 of Official Records, Page 479; thence along last said line,North 89° 15' 33" West 91.69 feet to the Easterly line of the parcel of land conveyed to the State of California by Deed recorded December 1, 1960 in Book 4998 of Official Records, Page 436;thence along last said line, South 0° 52' 03"West 188.09 feet to the point of commencement. Parcel 2: Commencing at the Southeasterly corner of the 2.00 acre parcel of land conveyed to M. Jakovich, et ux, by deed recorded February 18, 1948 in Book 1569 of Official Records, Page 37; thence along the Southerly line of said parcel,North 89° 15' 33" West 30.00 feet; thence North 0° 52' 31" East 188.09 feet to the line common to the lands now or formerly of said M. Jakovich, et ux, and of Joe Sorci, et ux; thence along last said line, South 89° 15' 33"East, 30.00 feet to the line common to the lands now or formerly of said M. Jakovich, et ux, and of Norman J.Nathanson, et al; thence along last said line, South 0° 52' 31" West 188.09 feet to the point of commencement. The bearings and distances used in the above description are on the California Coordinate System, Zone 3. Multiply the above distances by 1.0000495 to obtain ground level distances. PARCEL FIVE: A portion of that parcel of land described as Parcel One in Deed No. 13843 to the State of California, recorded October 22, 1959 in Volume 4582, Page 479 Official Records of Santa Clara County, described as follows: Commencing at a point on the Southerly line of that 2.70 acre tract of land described in said Parcel One, distant thereon S. 89° 15' 33" E. 91.69 feet from the Southwesterly corner of said tract; thence from a tangent that bears N. 4° 55' 01" W. along a curve to the right with a radius of 600.00 feet,through an angle of 17° 07' 52" an arc length of 179.40 feet to the Northerly line of said tract of land;thence along the last said line S. 89° 15' 33"E. 339.37 feet to a line being the Westerly line of the Easterly 220 feet of said tract as described in said Parcel One; thence along last said line S. 0° 52' 31" W., 178.50 feet to the Southerly line of said tract of land; thence along last said line N. 89° 15' 33" W. 348.08 feet to the point of Commencement. Tax Parcel No. 326-06-052 r_ .. . .. • EXHIBIT "B" CA-2151B/Hwy 28018 . u 10555 Mary Avenue Cupertino,CA 95014 APN:326-06-052 • rn - ,, Y 2 i 1. p %'' g -. -- —-- ___ .. ' -4 i : , xi 4.____---Z cu I VI `n 0 Vs.,.p. -E *-- CO a . s wCe o 0 ea 0 \ 1 O .116 04 -- Pi W E _- Y 0 - C �� ci) In .._._ 'uimacs 44 te4 as at t o Z L) . L e PAGE 1 ?fie First State I, HARRIET SMITH WINDSOR, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF MERGER, WHICH MERGES: "TOWER ENTITY 7 LLC", A DELAWARE LIMITED LIABILITY COMPANY, WITH AND INTO "TOWERCO ASSETS LLC" UNDER THE NAME OF "TOWERCO ASSETS LLC", A LIMITED LIABILITY COMPANY ORGANIZED AND EXISTING UNDER THE LAWS OF THE STATE OF DELAWARE, AS RECEIVED AND FILED IN THIS OFFICE THE TWENTY-THIRD DAY OF SEPTEMBER, A.D. 2008, AT 2:13 O'CLOCK P.M. �rwrs N A' n,,- �� ,= Harriet Smith Windsor.Secretary of State 4595986 8100M AUTHENTICATION: 6869067 t� . • , 080978140 DATE: 09-23-08 You may verify this certificate online at Corp.delaware.gov/authver.shtml State of Delaware Secretary of State Division of Corporations Delivered 02:08 PM 09/23/2008 FILED 02:13 PM 09/23/2008 SRV 080978140 - 4595986 FILE CERTIFICATE OF MERGER OF TOWER ENTITY 7 LLC .(a Delaware limited liability company) AND TOWERCO ASSETS LLC (a Delaware limited liability company) The undersigned,a limited liability company formed and existing under and by virtue of the Delaware Limited Liability Company Act DOES HEREBY CERTIFY THAT: 1. The name and state of formation of each of the constituent limited liability companies to the merger are as follows: Name State of Formation Tower Entity 7 LLC Delaware TowerCo Assets LLC Delaware 2. An Agreement and Plan of Merger between the parties to the merger has been approved,adopted and executed by each constituent Iimited liability company in accordance with the requirements of Section 18-209 of the Delaware Limited Liability Company Act. 3. The name of the surviving limited liability company shall be TowerCo Assets LLC. 4. The Certificate of Formation of TowerCo Assets LLC as now in force and effect,shall continue to be the Certificate of Formation of said surviving limited liability company until amended and changed pursuant to the provisions of the Delaware Limited Liability Company Act. 5. The merger shall be effective upon the filing of this Certificate of Merger with the Secretary of State of the State of Delaware. 6, The executed Agreement and Plan of Merger is on file at the office of the surviving company,the address of which is c/o TowerCo H Holdings LLC,5000 Valleystone Drive,Cary,North Carolina 2751 S'. Deo:US1:5339550,4 • 2 7. A copy of the Agreement and Plan of Merger will be furnished by the surviving company, on request and without cost,to any member of any constituent limited liability company. Executed as of September 23,2008. TOWERCO ASSETS LLC By: Ououlef2 Name: Daniel Hunt Title: Authorized Person DocN:US1:3339550vI October 21, 2009 /04 Roger Lee .mrkr4.ysc rile✓ T® rid AssistantDirector of Public Work; !?a;ee,,,i /15 ,ham 7;44d-.P-172° 5 City Hall 10300 Torre Avenue 0/- 41ex svdfid,,,4 - Cupertino, CA 95014 0� a�� C(5.5. - /1 ire-- • 73 bromic/ac 7. r- is /44r r .Cc 35d / Re: TowerCo ID: CA2156 Request for Memorandum �''�' - w Sic,-✓_ Dear Mr. Lee: Thank you for taking the time to speak to me on the telephone today. Per our conversation, I have revised paragraphs 5 and 6 of the Memorandum of Agreement regarding the term expiration date and the renewal terms. I have also enclosed a copy of the original Agreement and have highlighted the portions pertaining to renewing the term of the Agreement. TowerCo appreciates the City's cooperation in executing a Memorandum of Ground Lease. Please have the enclosed Memorandum executed and returned to my attention. If you have any additional questions, please give me a call. Sincerely, r'!`lti,l Jill Miraglia Legal Department TowerCo 919-573-8685 jmiraglia@towerco.com Enclosures 5000Valleystone Dr. c_ 919.469.5559 919.469.5530 info @towerco.com towerco.com Suite 200 Cary,NC 27519 September 30, 2009 Ralph A. Qualls, Jr. Director of Public Works City Hall 10300 Torre Avenue Cupertino, CA 95014 Re: TowerCo ID: CA2156 Request for Memorandum of Agreement Dear Mr. Qualls: I am writing in response to your letter dated September 22, 2009 to Mr. Raymond Moore of our office. The Agreement expressly permits the assignment of the Agreement to any "subsidiaries or affiliates" of Lessee without the need to obtain the Lessor's consent. On September 23, 2008, Nextel of California, Inc. assigned its interest in the Agreement to its affiliate, Tower Entity 7 LLC. Tower Entity 7 LLC was subsequently acquired by merger into TowerCo Assets LLC. With respect to TowerCo's expertise and experience, TowerCo is the fifth largest tower company in the United States, owning and leasing over 3,100 towers located in 47 states and Puerto Rico. In September 2008, it acquired in an all cash transaction valued at over $670,000,000 just about every single communications tower Sprint/Nextel owned. TowerCo was able to make this transaction without the need for any debt financing based solely on its experience and expertise in owning communications towers. TowerCo's equity partners include Vulcan Capital (which serves as the TowerCo investment arm of Vulcan Inc., founded by Paul G. Allen, co-founder of Microsoft) and Soros Strategic Partners. Additional information on TowerCo can be reviewed at its website www.towerco.com. TowerCo appreciates the Lessor's cooperation in executing a Memorandum of Ground Lease. We have revised the Memorandum to reflect your comment that the Memorandum state the December 31, 2010 as the expiration date of the current term. 5000 Valleystone Dr. _ 919.469.5559 3 919.469.5530 info@towerco.com towerco.com Suite 200 = Cary,NC 27519 CA2156 September 3o,2009 Page 2 Please have the enclosed Memorandum executed and returned to my attention. If you have any additional questions, please give me a call. Sincerely, ki(-1 •.) Jill Miraglia Legal Department 919-573-8685 jmiraglia@towerco.com Enclosures T info @towerco.com towerco.com F DM-754336-V1 v� // PUBLIC WORKS DEPARTMENT Ralph A. Qualls,Jr., Director ‘,1 19s CITY HALL 10300 TORRE AVENUE—CUPERTINO, CA 95014-3266 CUPERTINO (408)777-3354—FAX(408)777-3333 October 14, 2009 Ms. Jill Miraglia, TowerCo, Legal Department 5000 Valleystone Drive Cary,NC 27519 RE: TowerCo Site: CA2156—Request for Memorandum of Agreement • Dear Ms. Miraglia, I am in receipt of your transmittal dated September 30, 2009 regarding the TowerCo request for memorandum of agreement. Thank you for clarification that TowerCo is an affiliate of Nextel of California, Inc. As a result of this clarification, and per our agreement, I agree that the City's written consent is not required. As you stated in the proposed memorandum, the original agreement is dated in the year 2000 with conditions that the agreement can be extended for up to two 5 year terms. The agreement is currently in the last five year term and will expire in 2010. Item No. 5 of your memorandum states that the expiration date is December 30, 2015. Please revise this date to be consistent with the original agreement and forward for our review. Please contact Roger Lee, Assistant Director of Public Works — Maintenance at 408-777- 3350 with any inquiries. Sincerely, IR. Ralph A. Qualls, Jr. Director of Public Works \ /� �. PUBLIC WORKS DEPARTMENT Ralph A. Qualls,Jr., Director SST.I9s CITY HALL 10300 TORRE AVENUE—CUPERTINO,CA 95014-3266 CUPERTINO (408)777-3354—FAX(408) 777-3333 September 22, 2009 Mr. Raymond W. Moore, Paralegal 5000 Valleystone Drive Cary,NC 27519 RE: TowerCo ID.: CA2156 Request for Memorandum of Agreement Dear Mr. Moore, I am in receipt of your transmittal dated July 8, 2009 regarding the above topic. The current agreement dated December 2005 regarding this site is between the City of Cupertino and Nextel of California, Inc. In October of 2008, the City received written notice from TowerCo that the interests of Nextel, relative to this site, had been assigned to TowerCo. Agreement section IV - Covenants and Conditions, subsection A.2. Assignment and Subleasing, requires that the City be provided an opportunity to consent to the noticed assignment. The expertise and experience of the lessee are material considerations to this agreement. Forward for City review all pertinent information that would assist the City in determining the experience and abilities of TowerCo. The memorandum of agreement included in your transmittal does not reflect the December 2010 expiration date of our current agreement. Any proposed agreement must include all of the provisions of the existing agreement. In its current form and subject to subsequent review,your request to execute the 2009 memorandum of agreement is denied. Please contact Roger Lee, Assistant Director of Public Works — Maintenance at 408-777- 3350 with any inquiries. Sincerely, -71.. 4 C Ralph A. Qualls, Jr. Director of Public Works PUBLIC WORKS DEPARTMENT Ralph A. Qualls,Jr., Director �C.S�•194, CITY HALL 10300 TORRE AVENUE—CUPERTINO, CA 95014-3266 CUPERTINO (408)777-3354—FAX(408)777-3333 September 22, 2009 Mr. Jamie A. Ebling Authorized Representative of TowerCo 1819 Main Street, Suite 302 Sarasota, Florida 34231 RE: TowerCo Site: CA2156 - Proposal Dear Mr. Ebling, I am in receipt of your transmittal dated August 3, 2009 regarding the TowerCo Ground Rights Purchase Program. The current agreement dated December 2005 regarding this site is between the City of Cupertino and Nextel of California, Inc. In October of 2008, the City received documentation from TowerCo that the interests of Nextel, relative to this site, had been transferred to TowerCo. The City is entitled by the agreement to approve this assignment and has requested additional information from Mr. Raymond W. Moore, Paralegal with TowerCo. This process is pending. The City of Cupertino appreciates your offer of$239,000 to purchase a perpetual easement, subject to the execution of a purchase agreement, for the above site. In analyzing this offer, the City respectfully declines. Please be advised that the current agreement expires in December 2010. One additional five year term extension can be offered without renegotiation of agreement terms. Please contact Roger Lee, Assistant Director of Public Works — Maintenance at 408-777- 3350 with any inquiries. Sincerely, ' 2.4 -=- C U Ralph A. Qualls, Jr. Director of Public Works \� PL67 � C ti� 1 �. PUBLIC WORKS DEPARTMENT Ralph A. Qualls,Jr., Director 51 19, CITY HALL r) 10300 TORRE AVENUE—CUPERTINO,CA 95014-3266 ���� CUPERTINO (408)777-3354—FAX (408)777-3333 September 14, 2009 Mr. Raymond W. Moore, Paralegal 5000 Valleystone Dr. Cary,NC 27519 RE: TowerCo ID.: CA2156 Request for Memorandum of Agreement Dear Mr. Moore, I am in receipt of your transmittal dated July 8, 2009 regarding the above topic. The current agreement dated December 2005 regarding this site is between the City of Cupertino and Nextel of California, Inc. Prior to considering your request, the City requires documentation that the interests of Nextel, relative to this site, have been transferred to TowerCo. A revised agreement may be necessary to reflect this change. The memorandum of agreement included in your transmittal would have already expired and does not reflect the expiration dates of our current agreement. In addition, any agreement must include all of the provisions of the existing agreement. In its current form and subject to subsequent review, your request to execute the 2009 memorandum of agreement is denied. Please contact Roger Lee, Assistant Director of Public Works — Maintenance at 408-777- 3350 with any inquiries. Sincerely, c_�:_. . a Ralph A. Qualls, Jr. Director of Public Works -���, 2- c \\ / b� ) rik. PUBLIC WORKS DEPARTMENT Ralph A.Qualls,Jr., Director t 94. CITY HALL 10300 TORRE AVENUE—CUPERTINO, CA 95014-3266 CUPERTINO (408)777-3354—FAX(408)777-3333 September 14, 2009 Mr. Jamie A. Ebling Authorized Representative of TowerCo. 1819 Main Street, Suite 302 Sarasota, Florida 34231 RE: TowerCo Site: CA2156 - Proposal Dear Mr. Ebling, I am in receipt of your transmittal dated August 3, 2009 regarding the TowerCo Ground Rights Purchase Program. The current agreement dated December 2005 regarding this site is between the City of Cupertino and Nextel of California, Inc. Prior to considering your proposal, the City requires documentation that the interests of Nextel, relative to this site, have been transferred to TowerCo. A revised agreement may be necessary to reflect this change. The City of Cupertino appreciates your offer of$239,000 to purchase a perpetual easement, subject to the execution of a purchase agreement, for the above site. In analyzing this offer, the City respectfully declines. Please be advised that the current agreement expires in December 2010. One additional five year term extension can be offered without renegotiation of agreement terms. Please contact Roger Lee, Assistant Director of Public Works — Maintenance at 408-777- 3350 with any inquiries. Sincerely, Ralph A. Qualls, Jr. Director of Public Works August 3, 2009 ifiL& Ak/ra,,,e,✓ �}Z� City of Cupertino 10300 Torre Ave Cupertino, CA 95014-3202 RE: TowerCo Site: CA2156 - Proposal Dear Mayor: This letter follows our recent written communication regarding the TowerCo Ground Rights Purchase Program. This program offers qualified landowners a generous financial alternative to the monthly rent lease arrangement presently in place, and is offered in specific cases that meet certain criteria. I have researched the details of your lease agreement with TowerCo and the tower facility located on your property, and I am pleased that we are able to make this program available to you. Specifically, I am able to offer to you the amount of$239,000.00 (hereinafter "Purchase Price") for a perpetual easement under the area defined as the leased space or leased premises in your lease agreement with TowerCo, together with non-exclusive easements for access and utilities that currently serve the tower facility related equipment. The parties will sign a standard purchase agreement (hereinafter "Purchase Agreement") that will set forth the Purchase Price and the terms of the arrangement. This document will set forth the Purchase Price in detail, and will provide for the completion of the transaction. At the closing, TowerCo will pay the Purchase Price to you in exchange for a perpetual easement for the space, and non-exclusive easements for the access and utility easements. Further, the Purchase Agreement will provide for the assignment or transfer of the lease agreement you have to TowerCo. TowerCo will retain the right to operate the tower facility until such time as it is no longer needed or is no longer operational. The easement will be terminated when the tower is no longer used by TowerCo or any other wireless carrier. The easement will continue to require that TowerCo pay all real estate taxes, maintain the tower facility, maintain insurance coverage for the tower and other improvements, and remove the tower and equipment at the expiration of the easement. The Purchase Agreement will also set forth the conditions and contingencies associated with this transaction. Specifically, TowerCo will order and obtain a title report, a survey of the tower site as set forth in the current lease agreement, and complete other investigations, all at no cost to you. I t is estimated that these inspections and reports will be completed in approximately sixty (60) days following the execution of the Purchase Agreement. This program allows you to take advantage of the time value of money and guarantee to you a specified amount for the use of your land for the location of the tower, regardless of what happens to technology or the economy in the next 10 to 20 years. In addition, the conveyance of the easement is treated as a `capital gain' and is currently taxed at fifteen percent (15%) rather than at ordinary income tax rates. Because each situation is unique, you should discuss the financial aspects and related tax implications with your personal advisor. TowerCo's objective is to decrease its monthly rental payments by investing in its own assets. By providing a lump sum amount for the easement and taking assignment of the lease agreement, they will be able to increase their monthly cash flow. As I mentioned, the offer set forth in this letter is subject to the full execution of the Purchase Agreement, and does not represent a contract or agreement for the purchase and sale of the easement. It is designed to outline the terms on which the Purchase Agreement will be drafted. The Purchase Agreement will contain the details, steps, processes, contingencies and other conditions of the transaction, and will control all aspects of this arrangement. Please review this letter and feel free to contact me if there are any questions. I will thereafter prepare the necessary Purchase Agreement and have it delivered to you for execution. I look forward to working with you. Sincerely, Jamie A. Ebling Authorized Representative of TowerCo 1819 Main Street, Suite 302 Sarasota, Florida 34231 866.319.0842 main 941.870.9207 fax jebling @towerco.com July 8, 2009 Ralph Qualls, Director of Public Works City of Cupertino 10300 Torre Avenue Cupertino, CA 95014-3202 Re: TowerCo ID.: CA2156 Request for Memorandum of Agreement Dear Mr. Qualls: As part of the customary review of our tower portfolio, we have been examining the real estate records relative to our site located on property owned by the City of Cupertino at 10555 Mary Avenue, Cupertino, California. During this review, we learned that a Memorandum. of Agreement was not recorded when the original Antenna Site Lease Agreement was signed with Nextel of California, Inc. In order to correct this omission, we have prepared an updated Memorandum of Agreement. Please review this document and if it meets with your approval, have it executed in the presence of a notary public and return it to me in the enclosed pre- paid envelope. Once the Memorandum of Agreement has been executed, we will record the document and provide you with a time-stamped copy. If you have any questions regarding this document, please feel free to contact me. Please refer to our TowerCo ID CA2156 in all communications. hank you in advance for your cooperation. Sincerer Ra and W. Moore TowerCo Paralegal 919-573-8683 RMoore @towerco.com Enclosures 5000 Valleystone Dr. a 919.469.5559 p, 919.469.5530 x info @towerco.com towerco.com Suite 200 m ' Cary,NC 27519 Kristy Barber MARSHBond Specialist II —1 Marsh USA Inc. m,',"` MARSH MERCER KROLL 2405 Grand Boulevard GUY CARPENTER OLIVER WYMAN Kansas City,MO 64108 816 556 4318 Kristy.Barber@marsh.com www.marsh.com February 12, 2009 City of Cupertino 10300 Torre Avenue Cupertino, CA 95014 Subject: TowerCo Assets LLC Tower Removal Bond # CMS214138 Replaces Bond #674011096 Effective Date: February 12 2009 Bond Amount: $ 10,000.00 Dear City Manager: Enclosed please find the captioned replacement bond that we are filing on behalf of our client, TowerCo. You are receiving this replacement bond due to TowerCo's purchase of this site from Sprint Nextel. You will be receiving a cancellation notice for Sprint Nextel's original bond shortly. Should you have any questions regarding this change, please contact me at 816-556-4318. Sincerely, 4L, ,xba„-Q5c, Kristy ber Bond Specialist II Encl. 5D./ k90 2- TOWER/STRUCTURE: REMOVAL BOND Bond Number: CMS 21 ,Z 3a Replaces Bond: 674011096 Effective: February 12 2009 KNOW ALL MEN BY THESE PRESENTS, THAT, TowerCo Assets LLC as Principal, and RU Insurance Company, a corporation duly organized under the laws of the State of Illinois, as Surety, are held and firmly bound unto City of Cupertino, 10300 Torre Avenue, Cupertino, CA 95014, as Obligee, in the sum of Ten Thousand and NO/100 Dollars ($10,000.00) lawful money of the United States, for the payment of which, well and truly to be made, we bind ourselves, our heirs, executors, administrators, successors and assigns, jointly and severally, firmly by these presents, the liability of the Surety being limited to the penal sum of this bond regardless of the number of years the bond is in effect. WHEREAS, the Obligee, by ordinance, permit or written agreement with the Principal, requires the submission of a bond guaranteeing the removal of telecommunications equipment located at 10555 Mary Avenue, Cupertino, CA 95014 (Site#CA2156) upon discontinuance of service. NOW THEREFORE, the condition of this obligation is such, that if the above bounden Principal shall perform in accordance with the aforesaid ordinance and/or agreement, and indemnify the Obligee against all loss caused by Principal's breech of any ordinance or agreement relating to maintenance, replacement, removal or relocations of a tower or structure, then this obligation shall be void, otherwise to remain in full force and effect unless cancelled as set forth below. THIS BOND may be cancelled by Surety by giving thirty (30) days written notice to the Obligee. Such cancellation shall not affect any liability the Surety may have or incurred under this bond prior to the effective date of the termination. PROVIDED HOWEVER, that this bond is executed subject to the following express provisions and conditions: 1. No action, suit or proceeding shall be maintained against the Surety on this bond unless action is brought within twelve (12) months of the cancellation date of this bond. 2. Neither cancellation nor termination of this bond by Surety, nor inability of Principal to file a replacement bond or replacement security for its obligations, shall constitute a loss to the Obligee recoverable under this bond. 3. No right of action shall accrue on this bond for the use of any person, corporation or entity other than the Obligee named herein or the heirs, executors, administrators or successors of the Obligee. 4. The aggregate liability of the surety is limited to the penal sum stated herein regardless of the number of years this bond remains in force or the amount or number of claims brought against this bond. 5. If any conflict or inconsistency exists between the Surety's obligations as described in this bond and as may be described in any underlying agreement, permit, document or contract to which this bond is related, then the terms of this bond shall prevail in all respects. THIS BOND signed, sealed, dated on the 12th day of February, 2009. This bond is effective the 12th day of February , 2009. Towe Asw" n� sets LLC By: ■Jbl/►' LatAA7, --- Daniel Hunt, Chief Financial Officer RLI Insurance Company By: dC.,,, ' • _ .. • IA s 1 : Kristy M. :4 er, Attorney-in-Fact . . RLRLI vision POWER OF ATTORNEY A Division 3967 Peoria,Insurance Company P.O.Box 3967 Peoria,IL 61612-3967 Phone: 309-692-1000 Fax: 309-692-8637 RLI Insurance Company Know All Men by These Presents: That this Power of Attorney is not valid or in effect unless attached to the bond which it authorizes executed, but may be detached by the approving officer if desired. That RLI Insurance Company,an Illinois corporation,does hereby make,constitute and appoint: PAIGE M.TURNER, ROY R.YANCEY, KEITH A. STILES, KRISTY M. BARBER,JOINTLY OR SEVERALLY in the City of Kansas City , State of Missouri its true and lawful Agent and Attorney-in-Fact, with full power and authority hereby conferred, to sign, execute, acknowledge and deliver for and on its behalf as Surety, the following described bond. Any and all bonds provided the bond penalty does not exceed Ten Million Dollars($10,000,000). The acknowledgment and execution of such bond by the said Attorney-in-Fact shall be as binding upon this Company as if such bond had been executed and acknowledged by the regularly elected officers of this Company. All authority hereby conferred shall expire and terminate, without notice, unless used before midnight of July 11,2007 , but until such time shall be irrevocable and in full force and effect. The RLI Insurance Company further certifies that the following is a true and exact copy of the Resolution adopted by the Board of Directors of RLI Insurance Company,and now in force to-wit: "All bonds,policies, undertakings, Powers of Attorney or other obligations of the corporation shall be executed in the corporate name of the company by the President, Secretary, any Assistant Secretary,Treasurer,or any Vice President, or by such other officers as the Board of Directors may authorize. The President, any Vice President, Secretary, any Assistant Secretary, or the Treasurer, may appoint Attorneys in Fact or Agents who shall have authority to issue bonds,policies or undertakings in the name of the Company. The corporate seal is not necessary for the validity of any bonds,policies,undertakings, Powers of Attorney or other obligations of the corporation. The signature of any such officer and the corporate seal may be printed by facsimile." IN WITNESS WHEREOF, the RLI Insurance Company has caused these presents to be executed by its President with its corporate seal affixed this 11th day of July , 2005 . .R"""""'ll,, RLI Insurance Company „c,J,,p.NCE cd"., ����G�pPORgT� 9�" • "Pr '• State of Illinois —� _ By = C } SS " SEAL . County of Peoria Jonat ■• c ael President•/,�''''"4l.I N 0%s' `` CERTIFICATE "Hunnuu,o` On this 11th day of July 2005 , before me,a Notary Public, I, the undersigned officer of RLI Insurance Company, a stock personally appeared Jonathan E.Michael , who being corporation of the State of Illinois, do hereby certify that the attached by me duly sworn,acknowledged that he signed the above Power of Attorney Power of Attorney is in full force and effect and is irrevocable; and as the aforesaid officer of the RLI Insurance Company and acknowledged furthermore,that the Resolution of the Company as set forth in the Power said instrument to be the voluntary act and deed of said corporation. of Attorney, is now in force. In testimony whereof, I have hereunto set my hand and the seal of the RLI Insurance Company this \ 12th day of February 2009 Jac. eline M.Bock••r Notary Public RLI Insurance Company I 7 ' "OFFICIAL SEAL" r,,..1.1 r' JACQUELINE M. BOCKLER 1 By: wors COMMISSION EXPIRES 03/01/061 i Jonat n E. c ael President A0058D03 2433317010106 October 20,2008 CITY OF CUPERTINO CA DEPT OF PUBLIC WORKS 10300 TORRE AVE CUPERTINO,CA 95014-3202 Dear CITY OF CUPERTINO CA: Re: Lease Agreement dated June 14,2000,by and between CITY OF CUPERTINO CA("Landlord")and Nextel of California,Inc.,demising certain real property located in the County of Santa Clara,California("Property") Site Name:Deanza/Stevens Creek;Site Number:CA2156 Effective September 23,2008,TowerCo Assets LLC("TowerCo"),acquired the above referenced tower. This letter is your written notification of the assignment from Nextel of California,Inc.to TowerCo. Our records indicate that the Lease Commencement Date was December 31,2000. Please indicate on the attached Landlord Information Form if this date is not correct. The enclosed rent check is for the month of November. In the event that you receive your payments through direct deposit,your banking information will be transferred from Sprint and will be processed over the next few pay cycles. You will not need to complete a new direct deposit form. In an effort to ensure efficient communication with property owners and to verify our Landlord database,we ask that you take a moment to complete the attached forms and forward the completed forms to our office: TowerCo Attn:Property Management 5000 Valleystone Drive Cary,NC 27519 Main Number:(919)469-5559 or(866)460-5559 Fax Number:(919)469-5530 We thank you for your cooperation and look forward to doing business with you. Sincerely, ........._.._..... Jennifer A.Courtemanche Director Lease Accounting TowerCo TowerCo Enc. 5000 Valleystone Dr. 919.469.5559 919.469.5530 info @towerco.com www.towerco.com Cary,NC 27519 CUP20I TowerCo Landlord Information Form Site Name: Deanza / Stevens Creek Site Address: 10555 Mary Avenue - (H) Pacbell Monopole - City Yard Cupertino, CA 95014 TowerCo Site Number: CA2156 Site Lease Commencement Date: December 31, 2000 Landlord Contact Information: Name: Address: City: State: Zip: Phone: Fax: Email: Return to: TowerCo 5000 Valleystone Dr. Cary, NC 27519 Fax: (919) 469-5530 Special Instructions/ Comments: AUTHORIZATION AGREEMENT FOR DIRECT DEPOSITS (ACH CREDITS) TOWER ID CA2156 LESSOR NAME I (we) hereby authorize , hereinafter called TowerCo, to initiate credit entries and to initiate, if necessary, debit entries and adjustments for any credit entries in error to my (our) Checking Savings account (select one) indicated below and the depository named below, hereinafter called BANK, to credit and/or debit the same to such account. BANK NAME BRANCH CITY STATE ZIP TRANSIT/ABA NO. ACCOUNT NO. This authority is to remain in full force and effect until TowerCo has received written notification from me (or either of us) of its termination in such time and in such manner as to afford TowerCo and BANK a reasonable opportunity to act on it. NAME(S) (PLEASE PRINT) SIGNED X DATE SIGNED X DATE ***** ATTACH A VOIDED CHECK***** Form W.9 Request far Taxpayer Give form to the (Rev.October 2007) Identification Number and Certification requester.Do not Department al the Treasury send to the IRS. Internal Revenue Service Name(as shown on your income tax return) m aBusiness name,if different from above qa o Check appropriate box: ❑ IndividuaVSole proprietor ❑ Corporation ❑ Partnership ❑ Limited liability company.Enter the tax classification(D=disregarded entity,C=corporation,P=pertnership)► ❑ Exempt o g ❑ Other(see Instructions)► 2 Address(number,street.and apt.or suite no.) Requester's name and address(optional) as City,state,and ZiP code a t�o1 pj List account number(s)here(optional) rn CO Taxpayer Identification Number(TIN) Enter your TIN In the appropriate box.The TIN provided must match the name given on Line 1 to avoid social security number backup withholding.For individuals,this Is your social security number(SSN).However,for a resident alien,sole proprietor,or disregarded entity,see the Part I instructions on page 3.For other entities,It Is your employer Identification number(EIN).It you do not have a number, see How to get a TIN on page 3. or Note.If the account Is in more than one name,see the chart on page 4 for guidelines on whose Employer Identification number number to enter. Part II Certification Under penalties of perjury,I certify that: 1. The number shown on this form is my correct taxpayer identification number(or I am waiting for a number to be issued to me).and 2. I am not subject to backup withholding because:(a)I am exempt from backup withholding,or(b)I have not been notified by the Internal Revenue Service(IRS)that I am subject to backup withholding as a result of a failure to report all interest or dividends,or(c)the IRS has notified me that I am no longer subject to backup withholding,and 3. I am a U.S.citizen or other U.S.person(defined below). Certification instructions.You must cross out item 2 above If you have been notified by the IRS that you are currently subject to backup withholding because you have failed to report all interest and dividends on your tax return.For real estate transactions,item 2 does not apply. For mortgage interest paid,acquisition or abandonment of secured property,cancellation of debt,contributions to an individual retirement arrangement(IRA),and generally,payments other than interest and dividends,you are not required to sign the Certification,but you must provide your correct TiN.See the Instructions on page 4. - Sign signature of Here U.S.person • Date► General Instructions Definition of a U.S. person. For federal tax purposes,you are considered a U.S.person if you are: Section references are to the Internal Revenue Code unless • An individual who is a U.S.citizen or U.S.resident alien, otherwise noted. •A partnership,corporation,company,or association created or Purpose of Form organized in the United States or under the laws of the United A person who Is required to file an information return with the States, IRS must obtain your correct taxpayer Identification number(TIN) • An estate(other than a foreign estate),or to report,for example,income paid to you,real estate • A domestic trust(as defined in Regulations section transactions,mortgage interest you paid,acquisition or 301.7701-7). abandonment of secured property,cancellation of debt,or Special rules for partnerships.Partnerships that conduct a contributions you made to an IRA. trade or business in the United States are generally required to Use Form W-9 only if you are a U.S.person(including a pay a withholding tax on any foreign partners'share of income resident alien),to provide your correct TIN to the person from such business.Further,in certain cases where a Form W-9 requesting it(the requester)and,when applicable,to: has not been received,a partnership Is required to presume that 1.Certify that the TIN you are giving is correct(or you are a partner is a foreign person,and pay the withholding tax. waiting for a number to be issued), Therefore,if you are a U.S.person that Is a partner in a 2.Certify that you are not subject to backup withholding,or partnership conducting a trade or business in the United States. provide Form W-9 to the partnership to establish your U.S. 3.Claim exemption from backup withholding If you are a U.S. status and avoid withholding on your share of partnership exempt payee.If applicable,you are also certifying that as a income. U.S.person,your allocable share of any partnership income from The person who gives Form W-9 to the partnership for a U.S. trade or business is not subject to the withholding tax on purposes of establishing its U.S.status and avoiding withholding foreign partners'share of effectively connected income. on its allocable share of net income from the partnership Note.If a requester gives you a form other than Form W-9 to conducting a trade or business in the United States is in the request your TIN,you must use the requester's form if it is following cases: substantially similar to this Form W-9. • The U.S.owner of a disregarded entity and not the entity. Cat No 10231X Form W-9(Rev 10-2007) Antenna Site Lea~~e Agreement between the CITY oif Cupertino and Nextel of California, Inc., a Delaware Corporation, d/b/a Nextel Communications This Antenna Site Lease Agreement ("Lease") is executed by and between the CITY of Cupertino, a municipal corporation, hereinafter called "CITY" and Nextel of California, Inc., a Delaware corporation, d/b/a Nextel Communications, hereinafter called "LESSEE." I. DEMISED PREMISES CITY hereby leases and LESSEE leases from CITY a portion of that certain real property situated in the CITY of Cupertino, State of California, commonly known as Cupertino Service Center ("Site") described and delinf:ated as specifically shown on Exhibit A attached hereto, consisting of approximately six hundred (600) square feet of land. Said real property is hereinafter called the "PREMISES" and is described i~l Exhibit B attached hereto. A. PERMITTED USE The PREMISES maybe used by LESSEE for any lawful activity in connection with the provision of mobile/wireless communication services, including without limitation, the transmission and the reception of radio communication signals on various frequencies and the construction, maintenance and operation of related communication facilities. LESSEE shall not use the PREMISES for any activity or in any manner which would tend to lower the character of the PREMISES, or in such a m<<nner as to create any nuisance which disturbs, interferes with, or annoys any other neighboring person or entity. B. CONSTRUCTED IMPROVEMENTS It is contemplated that LESSEE shall construct upon the Premises a telecommunications facility which shall consist of a ten foot by twenty foot equipment shelter in which Lessee shall place its communications equipment. Before any work of construction, alteration, or repair is commenced on the; PREMISES, LESSEE shall comply with all of the following conditions and provisions unless CITY'~s written waiver is first obtained: 1. All new structures shall first comply with CITY's applicable development standards and review process, including review and af~proval of required conditional use permits by the Planning Commission or CITY Council as appropriate. 2. LESSEE shall notify CITY in v~~riting of LESSEE'S intention to commence any work of improvements at least five (5) working days f~rior to commencement of such work. The notice shall specify the approximate location and nature of th.e intended improvements. CITY shall have the right to post and maintain on the PREMISES any noti~~es ofnon-responsibility provided for under applicable law, and to inspect the PREMISES in relation to compliance with this Lease, other permits or the construction at all reasonable times. 3. LESSEE shall secure and delivc;r to CITY, care of the Public Works Department, adequate evidence of compliance with all. applicable building codes, ordinances, regulations, and requirements for all permits and appr~~vals, including but not restricted to grading 1 ORIGINAL permits, building permits, zoning and planning requirements, and approvals from various governmental agencies and bodies regulating water, sewer, and any other utility or improvement on the Site. 4. LESSEE shall provide required bonds or other security securing completion of any new structures to be constructed upon the Site, pursuant to section I(B)(5) of this Lease, and shall furnish CITY, care of the Public Works Department, v~rith evidence of said security prior to undertaking any such construction on the PREMISES. 5. Prior to any work being conduc~:ed upon the Premises, LESSEE shall have provided to the CITY a bond or Certificate of Deposit as a security deposit in the amount often thousand dollars ($10,000.00) to cover the costs for th~~ removal of LESSEE's equipment in and upon the PREMISES and any repairs that maybe required t~~ the PREMISES which are the responsibility of the LESSEE to repair under this lease. The CITY shall have the right to draw against the deposit in the event of a default by LESSEE or to cover the costs for the removal of the encroachment and any repairs that maybe required to the PREMISES in the event that LESSEE fails to meet and fully perform any of its obligations hereunder. Within ten days of receipt of written notice from the CITY, LESSEE shall renew or replace such sums of money as shall bring the security deposit current. No release of the bond or certificate of deposit held as a security deposit shall be made except upon approval of the CITY, in accordance with California law. LESSEE agrees that the bond or certificate of deposit shall be held in full force and effi~ct for the Term of this Agreement. The Security Deposit shall be released by the ('ITY upon completion of the removal of the encroachment and any repairs necessary to restore the PREMISES to their original condition as of the Commencement Date of the lease excepting reasonable wear and tear beyond the control or without the fault or neglect of the Lessee. The deposit shall be released thirty (30) days after the CITY Engineer's inspection and acceptance of the work. 6. Once any approved work of improvement is begun, LESSEE shall diligently prosecute completion of said work or construction. All work shall be performed in a good and workmanlike manner, and shall substantially comply with plans and specifications approved by CITY and as required by this Lease. C. SOIL CONDITIONS CITY makes no covenants or warranties respecting the condition of the soil or subsoil or any other condition of the PREMISES that might affect LESSEE's ability to construct the monopole antenna upon the PREMISES. D. UTILITY INSTALLATION ACCESS CITY grants to LESSEE the right to install utilities, for the purpose of serving the PREMISES only, which maybe, in CITY's sole opinion, reasonably required. 2 II. TERM OF LEASE A. COMMENCEMENT AND TERMINATION The term of this Lease (Term) shall be five (5) years commencing with the issuance of a local building permit allowing LESSEE to construct its mobile/wireless communications facilities on the PREMISES, or December 31, 2000, whichever is earlier (hereinafter referred to as "Commencement Date"). At the option of LESSEE, the term of this Lease maybe renewed for successive five-year periods of time (hereinafter referred to as "Renewal Term"), but in no event, shall the Lease be extended for more than two Renewal Terms without the negotiation and execution of a new lease. Not withstanding the above, the CITY may terminate the lease prior to the expiration of its term or any Renewal Term, under the following circumstances: 1. If LESSEE is in material breach; 2. If the CITY is required by federal, state: or local law to regain possession of the PREMISES; 3. If the CITY no longer utilizes the Site pis a city facility. Upon a breach or default of any of the terms or obligations of this LEASE by LESSEE, the CITY shall serve written notice upon LESSEE reason,rbly describing the breach or default. If LESSEE fails to cure a monetary breach or default within thirty (30) days or anon-monetary breach within sixty (60) days this LEASE shall be subject to termination <<t the option of the CITY. The CITY shall be entitled to exercise all rights and remedies hereby reserved under this LEASE or made available under applicable laws. Termination of this LEASE by the CITY shall constitute the withdrawal of any consent or authorization of CITY for LESSEE to perform any construction or other work under this LEASE excepting only that work necessary to remove all equipment and to repair the PREMISES to their original condition existing at the Commencement Date of the LEASE, reasonable wear and tear beyond the control or without the fault or neglect of the LESSEE excepted. LESSEE may terminate this LEASE at any time during the term of this LEASE or any Renewal Term thereof upon thirty- (30) day's notice to the CITY with no further liability except as expressly provided herein. Upon such early termination by LESSEE, the CITY shall make apro-rata refund to LESSEE of the rental fee paid to the CITY by LESSEE prorated to the date of CITY's acceptance of the removal of the LESSEE's FACILITIES. In the event of termination by either party, LESSEE shall immediately cease all work being performed under this LEASE, excepting only that work necessary for LESSEE to remove all equipment and repair the PREMISES in accordance with Section II(B). B. SURRENDER OF PREMISES LESSEE shall remove all LESSEE Facilities at its sole expense upon cancellation, expiration or earlier termination of this Lease. LESSEE shall repair any damage to the PREMISES caused by such remov~~l and shall return the PREMISES to the condition which existed on the Commencement Date, reasonable wear and tear and damages beyond the control or without the fault or neglect of LESSEE excepted. If LESSEE fails to remove the Facilities within thirty (30) days of the termination or expiration of this LEASE, CITY may remove and store the Facilities at LESSEE'S sole cost and expense. If LESSEE does not claim the Facilities within thirty (30) days following said removal, and provided that CITY has given LESSEE and any third party financing entity thirty (30) days prior writtc;n notice, the Facilities shall be deemed abandoned and City May dispose of the Facilities. LESSEE shall notify CITY of the name and address of the third party financing entity for notice purposes lterein and the CITY will be notified of any changes with respect to said entity and its address. LE,SSEE's obligation to observe and perform the covenants of this paragraph shall survive the end of this Lease. C. LIEN RIGHTS CITYwaives any lien rights it may have concerning the Facilities which are deemed LESSEE'S personal property and not fixtures, and LESSEE has the right to remove the same at any time without CITY consent. CITYack;nowledges that LESSEE has entered into a financing arrangement including promissory notes and. financial and security agreements for the financing of the Facilities (the "Collateral") with a third party financing entity (and may in the future enter into additional financing arrangements with other financing entities). In connection therewith, CITY(i) consents to the installation of the Collateral; (ii) disclaims any interest in the Collateral, as fixtures or otherwise; and (iii) agrees that the Collater~il shall be exempt from execution, foreclosure, sale, levy, attachment, or distress for any rent due or to become due and that such Collateral maybe removed at any time without recourse to legal proceedings, except as when deemed abandoned pursuant to Section II, Paragraph B of this Lease. D. ACCESS TO IMPROVEMENTS 1. LESSEE shall have the right (blot not the obligation) at any time following the full execution of this Lease and prior to the Commencement Date, to enter the PREMISES for the purpose of making necessary inspections and engineering surveys (and soil tests where applicable) and other reasonably necessary tests (hereinafter singularl}~ and collectively referred to as "Tests") to determine the suitability of the PREMISES for LESSI?E's Facilities (as defined herein) and for the purpose of preparing for the construction of LESSEE'S Facilities. During any Tests or pre- construction work, LESSEE will have insurance as set forth in Section IV, B, 4, Insurance. LESSEE will notify CITY of any proposed Tests or pre-construction work and will coordinate the scheduling of same with CITY. If LESSEE determines that the PREMISES are unsuitable for LESSEE'S contemplated use, then LESSEE will notify CITY and this Lease will terminate. 2. LESSEE has the right to construct, maintain and operate on the PREMISES radio communication facilities, including but not limited to, radio frequency transmitting and receiving equipment, batteries, utility lines, transmission lines, radio frequency transmitting and receiving antennas and supporting structures and improvements (hereinafter referred to as "Facilities"). In connection therewith, LESSEE has the right to do all work reasonably necessary to prepare, add, maintain and alter the PREMISES for LESSEE'S communications operations and to install utility lines and transmission lines connecting antennas to transmi~~aers and receivers. All of LESSEE'S construction and installation work shall be performed at LESSEE's sole cost and expense and in good 4 workmanlike manner. Title to LESSEE'S Facilities acid any equipment placed on the PREMISES by LESSEE shall be held by LESSEE. All of LESSEE's Facilities shall remain the property of LESSEE and are not fixtures. LESSEE has the right to remove all LESSEE'S Facilities at its sole expense on or before the expiration or termination of this Lease. 3. At no charge to LESSEE, CITY shall provide access to the PREMISES to LESSEE, LESSEE'S employees, agents, contractors acid subcontractors five (5) days a week during working hours and on other days and times by special arrangement with CITY. Not withstanding the foregoing, in the event of an emergency, Lessee shall }lave access to the PREMISES at all hours, seven (7) days a week. Twenty-four hour emergency access is available through County Communications. CITY represents and warrants that it has full rights of :ingress and egress from the PREMISES, and hereby grants such rights to LESSEE to the extent req~zired to construct, maintain, install and operate LESSEE'S Facilities on the PREMISES. LESSEE'S exercises of such rights shall not cause undue inconvenience to CITY, nor shall it compromise the security of CITY'S adjoining Site. 4. CITY shall maintain all access roadways from the nearest public roadway to the PREMISES in a manner sufficient to allow access. CITY shall be responsible for maintaining and repairing such roadways, at its sole expense, except for any damage caused by LESSEE or LESSEE's agents or assigns. If LESSEE or LESSEE's agents or assigns cause any such damage, LESSEE shall promptly repair same. 5. LESSEE shall have the right to install utilities, at LESSEE's expense, and to improve the present utilities on or near the PREMISE~~ (including, but not limited to the installation of emergency back-up power). Subject to CITY'S approval of the location, which approval shall not be unreasonably withheld, LESSEE shall have the right to place utilities on (or to bring utilities across) CITY'S Property in order to service the PREMISES ar~d LESSEE's Facilities. 6. LESSEE shall fully and promptly pay for all utilities furnished to the PREMISES for the use, operation and maintenance of LESSEE's Facilities. III. RENT A. BASIC RENT 1. Upon the Commencement Date., LESSEE shall pay to CITY, as rent, the sum of one thousand eight hundred dollars ($1,800.00) per month. If the Commencement Date is other than the first day of a calendar month, LESSEE may pay ors the first day of the Term the prorated Rent for the remainder of the calendar month in which the Term commences, and thereafter, LESSEE shall pay a full month's rent on the first day of each calendar month, except that payment shall be prorated for the final fractional month of this Lease, or if this Leasc; is terminated before the expiration of any month for which Rent should have been paid. 2. These amounts will be due and payable on or before the first day of each month during the term of this Lease. The rent will be paid in advance to the Department of Finance, City of 5 Cupertino, 10300 Torre Avenue, Cupertino, CA 95014•, without prior demand and without any abatement, deduction or setoff. B. LATE PAYMENT CHARGE Tlie rent shall be delinquent if not received by the close of the business day on the 10th of each calendar -month. Such unpaid amounts of rent shall be subject to a late payment charge equal to ten percent (] 0%) of such unpaid amounts. This late payment charge is intended to compensate CITY for its additional administrative costs resulting from LESSEE'S failure, and has been agreed upon by CITY and LESSEE, after negotiation, as a reasonable estimate of the additional administrative costs which will be incurred by CITY as a result of LESSEE'S failure; the actual cost being impossible to ascertain at the time of this Lease. This late payment will constitute liquidated damages due the CITY and will be paid to CITY together with such unpaid amounts. Acceptance of the payment of this late charge will not constitute a waiver by CITY of any default by LESSEE under this Lease. C. ADJUSTMENT OF RENT The rent in subparagraph A above will be adjusted according to this paragraph notwithstanding any provi;~ion in that subparagraph to the contrary: 1. Rent shall be increased on each anniversary of the Commencement Date by an amount equal to Five Percent (5%) of the rent for the I~revious year. IV. COVENANTS AND CONDITIONS A. CITY COVENANTS 1. Quiet Possession LESSEE, paying the said rent and performing the covenants and Leases herein, shall and may at all times during the said term peaceably and quietly have, hold and enjoy the said PREMISES for the term thereof. 2. Assignment and Subleasing The parties agree that the expertise and experience of LESSEE are material considerations inducing the CITY to enter into this LEASE. LESSEE shall not assign, sell, Lease, merge, consolidate or transfer any interest in this LEASE nor the performance of any of LESSEE'S obligations herein, v~ithout prior written consent of the CITY, and any attempt by LESSEE to so assign this LEASE or ally rights, duties or obligations arising herein shall be void and of no effect. The consent of the CIT~t will not be unreasonably withheld. Notwithstanding the foregoing, LESSEE shall have th~~ right to assign its rights under this LEASE without the consent of the CITY to any of its subsidiaries or affiliates or its parent company or to any successor in interest or entity acquiring fifty-one percent (51 %) or more of its stocks or assets, provided however, that LESSEE shall not be released from any obligation under this LEASE without the written consent of the CITY. Additionally, Lessee may assign, mortgage, pledge, hypothecate or otherwise transfer without consent its interest in this Lease to any financing entity, or agent on behalf of any financing entity to whom Lessee (i) has obligations for borrowed money or in respect of guaranties thereof, (ii) has obligations evidenced by bonds, debentures, notes or similar instruments, or (iii) has obligations under or with respect to letters of credit, bankers acceptances and similar facilities or in respect of guaranties thereof. 6 3. Hazardous Waste CITY represents and warrants that any activity concerning Hazardous Materials on the Site and the PREMISES which CITY and/or its agents undertakes or permits to be undertaken by other Lessees, Licensees or Permittees of CITY will be done in accordance with all local, state and federal regulations governing the proper use, storage, transportation and disposal of said materials. In addition to the indemnity provided in section IVB4(b), CITY shall indemnify, defend, protect and hold LESSEE harmless from and against any and all claims, loss, proceedings, damages, causes of action, liability, costs or expenses (including attorney's fees) arising as a result of any Hazardous Materials which exist within the property, common areas, building or PREMISES as of the date first written above and any Hazardous Materials which are present within the property, common areas, building or PREMISES after said date which are not the result of the activities or omission of LESSEE. Notwithstanding the foregoing, nothing herein is inte~ided to obligate LESSEE to bring the PREMISES into compliance with applicable requirements, ordinances and statutes unless such compliance is triggered by LESSEE'S use, operations or LESSEE's Facilities constructed upon the PREMISES. Not withstanding any other provision of this Lease, LESSEE relies upon the representations stated herein as a material inducement for entering into this Lease. B. LESSEE COVENANTS 1. Compliance with Law LESSEE agrees, at its sole cost and expense, to comply with all the requirements, ordinances and statutes nov~~ in force, or which may hereafter be in force, of all municipal, county, state and federal authorities, pertaining to the said PREMISES, or the operations conducted thereon. 2. Taxes LESSEE agrees to pay before delinquency all taxes, adjustments, and fees assessed or levied upon LESSEE or the Leased PREMISES, including the land and any buildings, structures, machines, appliances or other property or improvements erected, installed or maintained by LESSEE or by reason of the business or other activities of LESSEE upon or in connection with the Leased PREMISES. LESSEE recognizes and agrees that this Lease may create a possessory interest subject to property taxation, and that LESSEE maybe subject to further payment of property or possessory interest taxes without any compensatory reduction in :rent due to the CITY. 3. Hazardous Waste LESSEE shall not bring any hazardous materials onto the PREMISES except for those contained in its back-up power batteries (lead-acid batteries) and common material used in telecommunications operations, e.g., cleaning solvents. LESSEE will treat all hazardous materials brought onto the PREMISES by it in accordance with all Federal, State and Local laws and regulations. In addition to the indemnity provided in section IVB4(a), LESSEE shall indemnify, defend, protect and hold CITY harmless from and against any and all claims, loss, proceedings, damages, causes of action, 7 liability, costs or expenses (including attorney's fees) arising as a result of any Hazardous Materials which exist within the property, common areas, building or PREMISES as a result of the activities or omission of LESSEE. 4. Indemnity a. LESSEE shall indemnify, defend, and hold harmless CITY, its employees, successors and assigns from and against a:ny and all loss, cost, claim, liability, action, damage, injury to or death of any person (hereinafter referred to as "Claims"), including reasonable attorney's fees, occurring on the PREMISES and arising out of or connected with the negligence or willful misconduct of LESSEE, its agents or contractors, except for Claims arising out of the negligence or willful misconduct of CITY, its agents or contractors, breach of any duty or obligation by CITY under this Lease, or any condition relating to the PREMISES which LESSEE has no obligation to repair or maintain. b. CITY shall indemnify, defend, and hold harmless LESSEE, its employees, successors and assigns from and against any and all loss, cost, claim, liability, action, damage, injury to or death of any person (hereinafter referred to as "Claims"), including reasonable attorney's fees, arising out of or connected with negligence or willful misconduct of CITY, its agents or contractors, except for Claims arising out of the negligence or willful misconduct of LESSEE, its agents or contractors, violation of any law by LESSEE, its agents or contractors, breach of any duty or obligation by LESSEE under this Lease, or any condition relating to the PREMISES which CITY has no obligation to repair or maintain. c. The foregoing indemnity in a. and b. will survive the termination of this Lease. 5. Insurance Coverage LESSEE., at LESSEE's sole cost and expense, shall procure and maintain for the duration of this LEASE, including any extensions of this LEASE and during the period that LESSEE is performing any work upon the expiration or earlier termination of this LEASE to remove the equipment from CITY property, insurance, naming CITY as an additional insured, against claims for injuries to persons or damage to property which may arise from, or in connection with, the performance of the work or provision of SERVICES hereunder by LESSEE, its agents, representatives, employees or subcontractors. a. Minimum Scope of Insurance The coverage shall include Commercial General Liability together with Broad Form Comprehf;nsive General Liability including explosion, collapse and underground; Automobile liability including Code 1 (any auto), Code 2 (owned autos), Code 8 (hired autos) and Code 9 (nonowned autos); V~'orkers' Compensation as required by the California Labor Code and Employers Liability insurance. b. Minimum Limits of Insurance LESSEE shall maintain limits no less than two million dollars ($2,000,000) combined single limit per occurrence for bodily injury, personal injury and property damage in Commercial General Liability; three million dollars ($3,000,000) in 8 aggregate for public liability and five hundred thousand dollars ($500,000) combined single limit per accident for bodily injury and property damage in Automobile Liability; and Workers' Compensation and Employers Liability limits of one million dollars x;$1,000,000) per occurrence. c. Deductibles and Self-in.~ured Retention Any deductibles or self-insured retention must be declared to, and approved by the CITY. d. Policy Provisions The following provisions must be included in the policies: (1.) The CITY of Cupertino, its officers, employees, agents and contractors are to be covered as additional insured regarding liability arising out of activities performed by or on behalf of, LESSEE, products and completed ~~perations of LESSEE, premises owned, Leased or used by LESSEE, and vehicles owned, Leased, hire-d or borrowed by LESSEE. The coverage shall contain no special limitations on the scope of protection afforded to the CITY, its officers, employees, agents and contractors. (2.) LESSEE'S insurance coverage shall be primary insurance as respects the CITY, its officers, employees, agents and contractors. Any insurance or self-insurance maintained by the CITY, its officers, employees, agents or contractors shall be excess of LESSEE'S insurance and shall not contribute with it. (3.) Any failure to comply with reporting provisions of the policies by LESSEE shall not affect coverage provided the CITY, its officers, employees, agents or contractors. (4.) All policies required by this LEASE shall be endorsed to state that coverage shall not be suspended, voided, canceled or reduced in limits except after thirty (30) days prior written notice has been given to the CITY. e. Acceptability of Insurer; The insurance carrier shall provide proof of their ratings. All ratings shall be a minimum of "Best A-7." f. Verification of Covera~~_ The CITY shall provide all required forms. LESSEE shall furnish CITY with certificates of insurance and with all endorsements affecting coverage required by this LEASE. The certificates and endorsements for each policy are to be signed by a person authorized by that insurer to bind coverage on its behalf. g. Subcontractors LESSEE shall either include all subcontractors as insured under its policies or shall require all subcontractors to meet CITY'S requirements listed above. 6. Maintenance and Repairs LESSEE agrees to assume full responsibility for the operation, maintenance, and repairs of the PREMISES throughout the term hereof without expenses to 9 the CITY unless otherwise specified herein, and to perform all repairs and replacements necessary to maintain and preserve the PREMISES in good order, in a safe, healthy and sanitary condition, in manner reasonably satisfactory to CITY in compliancc; with all applicable regulations and laws. LESSEE agrees that CITY shall not be required to perform any maintenance, repairs, or services, or to assume any expense not specifically assumed herein, in connection with the PREMISES. Upon expiration of this Lease, LESSEE will surrender the PREMISES to CITY in good order and condition. 7. Nondiscrimination LESSEE agrees not to discriminate in any manner against any person or persons on account of race, marital statL~s, sex, religious creed, color, ancestry, or national origin in LESSEE'S use of the premises, including, but not limited to, the providing of goods, services, facilities, privileges, advantages and accomrr~odations, and the obtaining and holding of employment. 8. Utility Costs LESSEE agrees to order, obtain and pay all utilities, including but not limited to water, gas, electricity, telephone, communications services, sanitary and drainage services, and service installation charges on any improvements made by LESSEE on the PREMISES. LESSEE shall also secure and utilize waste disposal services for the PREMISES in accordance with applicable local and state ordinances. All utilities on the Site shall be underground. In the event utilities to the PREMISES are furnished by the CITY and are measured by privately installed sub-meters, LESSEE shall pay as additional rent the cost of utility service provided to the PREMISES and attributable to LESSEE's use ("Utility Charge"). LESSEE shall pay the estimated cost of the Utility Charge monthly in advan~;e together with the monthly Rent. The parties estimate the Utility Charge at the Commencement Date to be Two Hundred Fifty Dollars ($250.00) per month. During the lease term, at CITY'S request (which request shall not be more frequent than once every twelve months), LESSEE shall calculate the act~.ral Utility Charge for the immediately preceding twelve (12) months based on the readings from the privately installed sub-meters at CITY'S Property. If the actual Utility Charge varies from the estimated iJtility Charges paid, the parties shall adjust the Utility Charge to reflect LESSEE'S actual usage. 9. Waste, Damage or Destruction LESSEE agrees to give notice to CITY of any fire or damage that may occur on the leased PREMISES within ten (10) days of such fire or damage. LESSEE agrees not to commit or suffer to be committed any waste or injury or any public or private nuisance, to keep the PREMISES clean and clear of refuse and obstructions, and to dispose of all garbage, trash and rubbish in a manner reasonably satisfactory to the CITY. If the PREMISES is destroyed or damaged so :~s in LESSEE'S judgment, to hinder its effective use of CITY'S property, LESSEE may elect to termin~ite this Lease as of the date of the damage or destruction by so notifying CITY in writing no more than 30 days following the date of damage or destruction. In such event, all rights and obligations of the parties which do not survive the termination of this Lease shall cease as of the date of the damage ar destruction. 10. Contingency It is understood ley LESSEE and CITY that this Lease is fully contingent upon LESSEE obtaining final development: approvals for construction of improvements on the leased land from the CITY. In the event that such governmental approvals are not obtained on or 10 before December 31, 2000, after due diligence by LESSEE, LESSEE shall have the right to terminate this agreement within 30 days by notifying CITY in vrriting. If terminated, LESSEE shall have no further obligation to pay rent or comply with any other provision of this Lease. 11. Interference with Communications LESSEE'S facilities shall not disturb the communications configurations, equipment and frequency which exist on CITY's property on the Commencement Date (hereinafter referred to as "Pre-existing Communications"), and LESSEE's facilities shall comply with all non-interference rules of the Federal Communications Commission (FCC). CITY shall not permit the use of any portion of the Site in a way which interferes with the communications operations of LESSEE described in ]?aragraph I. A., above. Such interference with LESSEE'S communications operations shall be deemed a material breach by CITY, and CITY shall have the responsibility to terminate said interference ~Nithin a reasonable time of LESSEE'S written notice to CITY. In the event any such interference does not cease within ten days time, the parties acknowledge that continuing interference will cause irreparable injury to LESSEE, and therefore, LESSEE shall have the right to terminate the Lease immediately upon notice to CITY. Notwithstanding the foregoing, Pre-existing Communications operating in the same manner as on the Commencement Date shall not be deemed interference. 12. Legal Proceedings LESSEE agrees that should it become necessary for CITY to commence legal proceedings to collect rent, recover possession, or enforce any other provision of this Lease, the prevailing party will be entitled to leg~~l costs and expenses in connection therewith, including reasonable attorney's fees as determined by the court. The parties agree that the laws of the State of California shall be used in interpreting this Lease and will determine all rights and obligations hereunder, and it is agreed that this Lease is executed in Cupertino, CA. 13. Electromagnetic Fields LESSEE shall comply with all present and future laws, orders and regulations relating to Electromagnetic Fie-lds (EMFs), and the American National Standards Institute (ANSI) standards. Without limiti~ig the provision of LESSEE's indemnity contained herein, LESSEE, on behalf of itself and its successors and assigns, shall indemnify the CITY from and against all claims of personal injuries due t~~ EMFs to the extent such personal injuries are caused by LESSEE'S facilities on the Premises. C. RESTRICTIVE CONDITIONS 1. Administration and Notices (TTY's agent for control and administration of this Lease shall be the Director of Public Works of th~~ CITY of Cupertino, and any communication relative to the terms or conditions or any changes thereto or any notice or notices provided for by this Lease or by law to be given or served upon CITY mazy be given or served by certified letter deposited in the United States mails, postage prepaid, and addressed as indicated below,. Any notice or notices provided for by this Lease or by law to be given or served upon LESSEE maybe given or served by depositing in the United States mails, postage prepaid., a certified letter addressed to said LESSEE at the PREMISES or at such other address designated in. writing by LESSEE, or may be personally served upon them or any person hereafter authorized ~by them to receive such notice. Any notice or notices given or served as provided herein shall be ef~ectual and binding for all purposes upon the 11 principals of the parties so served upon personal service or forty-eight (48) hours after mailing in the manner required herein: CITY: Director of Public Works City of Cupertino 10300 Torre Avenue Cupertino, CA 95014 LESSEE: Nextel of California, Inc. 1255 Treat Blvd., Suite 800 Walnut Creek,CA 94596 Attention: Property Management with a copy to: Nextel Communications 2001 Edmund Halley Drive Reston, VA 20191-3436 Sixth Floor, Mail Stop 6E630 Site Leasing Services; Contracts Manager CITY or LESSEE may, from time to time, designate piny other address for this purpose by written notice to the other party. 2. Entry and Inspection CITY re:;erves the right to enter the PREMISES for the purpose of viewing and ascertaining the condition of the same, or to protect its interests in the PREMISES, or to inspect the operations conducted thereon. In the event that such entry or inspection by CITY discloses that the PREMISES are not in a safe, healthy and sanitary condition, CITY shall have the right, after thirty (30) days written notice to LESSEE, to have any necessary maintenance work done for and at the expense of LESSEE and LE:iSEE hereby agrees to pay promptly and any all reasonable costs incurred by CITY in having such necessary maintenance work done in order to keep the PREMISES in a safe, healthy and sanitary conditi~~n. Failure to reimburse CITY for the reasonable costs incurred by CITY within thirty (30) days of corr~pletion of said maintenance work shall constitute a default of this Lease. 3. Holding_Over. This Lease shall terminate without further notice at expiration of the term. Any holding over by LESSEE after expiration shall be under the same terms of this Lease, as maybe amended, and shall not constitute a renewal or extension or give LESSEE any rights in or to the PREMISES except as otherwise expressly provided in this Lease. 4. Merger The voluntary or other surrender of this Lease by LESSEE, or a mutual cancellation thereof, shall not work a merger and shall, at the option of CITY, terminate all or any existing subleases or subtenancies or may, at the option of CITY, operate as an assignment to it of any or all such subleases or subtenancies. 12 5. Reservation of CITY Riuhts (:ITY hereby reserves all rights ,title and interest in any and all gas, oil, minerals and water beneath said Leased premises. CITY shall have the reasonable right to enter the PREMISES for the purpose of making repairs to or developing municipal services. CITY hereby reserves the right to grant and use such easements or establish and use such rights-of--way over, under, along and across the PREM:ISES for utilities, thoroughfares, or access as it may deem advisable for the public good. Provided, however, CITY shall not unreasonably interfere with LESSEE'S use of the PREMISES and will reimburse LESSEE for physical damages, if any, to LESSEE'S facilities located on the PREMISES resulting from CITY'S exercising the rights retained in this paragraph. Such reimbursement may include a reduction in the annual rent proportionate to the amount of any physical damage as reasonably determined by CITY. CITY shall pay the costs of maintenance and repair of all CITY installations made pursuant to the rights reserved herein. All utilities shall be underground. 6. Time is of the Essence Time is of the essence of each and all of the terms and provisions of this Lease and this Lease shall inure to t}ie benefit of and be binding upon the parties hereto and any successor of LESSEE as fully and to the same extent as though specifically mentioned in each instance, and all covenants, stipulations and agreements in this Lease shall extend to and bind any assigns or sublessees of LESSEE. 7. Waiver The waiver by CITY of any term, covenant, or condition herein contained shall not be deemed to be a waiver of such term, covenant or condition, or any subsequent breach of the same or any other terms, covenant or condition herein contained. The subsequent acceptance of rent hereunder by CITY shall not be deemed to be a waiver of any preceding breach by LESSEE of any term, covenant or condition of this Lease, regardless of CITY'S knowledge of such preceding breach at the time of acceptance of such rent. Failure on the part of CITY to require or exact full and complete compliance with any of the covenants, conditions or agreements of this Lease shall not be construed as in any manner changing the terms hereof and shall not prevent CITY from enforcing any provision hereof. 8. Recordation LESSEE may, at its cost, record this Lease or a memorandum of this Lease. 9. Title. a. CITY warrants that it has full right, power, and authority to execute this Lease; CITY further warrants that LESSEE shall have quiet enjoyment of the PREMISES during the Term of this Lease or any Renewal Term. b. LESSEE has the right to obtain a title report or commitment for a Leasehold title policy from a title insurance company of its choice. If, in the opinion of LESSEE, such title report shows any defects of title or any liens or encumbrances which may adversely affect LESSEE'S use of the PREMISES, LESSEE shall have the right to terminate this Lease immediately upon written notice to CITY. 13 10. .Captions The captions of the various articles and paragraphs of this Lease are for convenience and ease of reference only and do not define, limit, augment, or describe the scope, content, or intent of this Lease or of any part of this Lease. 11. Entire Agreement This Lease contains the entire agreement between the parties. No promise, representation, warranty, or cove:nant not included in this Lease has been or is relied on by either party. Each party has relied on its ~~wn examination of this Lease, the counsel of its own advisors, and the warranties, representations, and covenants in the Lease itself. The failure or refusal of either party to inspect the PREMISES, to read the Lease or other documents, or to obtain legal or other advice relevant to this transaction constitutes a waiver of any objection, contention, or claim that might have been based on such reading, inspection, or advice. 12. Severability The invalidity or illegality of any provision of this Lease shall not affect the remainder of the Lease. 13. Successors Subject to the pro~~isions of this Lease on assignment and subletting, each and all of the covenants and conditions of this Lease shall be binding on and shall inure to the benefit of the heirs, successors, executors, administrators, assigns, sublessees, tenants, subtenants, and personal representatives of the respective parties. IN WITNESS WHEREOF, this Lease agreement is executed by CITY, acting by and through the Mayor, and by LESSEE, acting by and through its lawfully authorized officers. APPROVED AS TO Attorney Charles Krllian CITY OF CUPERTINO '~%~ ~~~ BY TIT John Statton, Mayor NEXTEL OF CALIFORNIA, INC. BY ~~~1~~ ~.~.. ~A„ ~C NL.~~ TITLE Mark B. Nelson Vice President ~~ ~ ~ ~ ~ ~~ ~~ ORIGINAL EXHIBIT "A" CA-2151B/Hwy 280/87 10555 Mary Avenue Cupertino, CA 95014 APN: 326-06-052 PA No. t ! __ .. 3CC MC set a polst oa ICl~ iiastoety 13aw ol,,tl~t coetais +i0 acss tsaat of land cr3bsd 1a tbo i>ead fries Lloyd t., Ldwesids, at uac, so Joe A. 3crei, et ev< dstad Fsirrusry d. 1913. rscotdad ?sbtcwrr 1Q, llii3 to look 3213 4. ti.; pa=s , Santa Clars Coueit~ Rseaorda, dtstaat eberseaa sou:h o' t38' l;aat 2320.b t«t =ra: sA teoa pips iet the csoterlias of lioasstsad Lead; tAsOCS SoutL 0. Oa' Sass clans tbs TisstsrlY lisw of said i0 ads treat 32.0li tsac to an troy pipe st Rhe SoutAyastsrir eotear ti~ssraE; rye s th+~acs ~Coutle 39• i~' Wrest shag tbt soatbsrlr lies of said d0 acts treat 39.32 tse:. .o sa ison pipe yet the SauttM+sstsrly tasASr Ihsssof; thaeeca Korth 0• I38' 3t?" Yest ~tlon~ the Veatsriy lies of acid i0 acts tsaet •32.09 testa; tbsases Nostle 84' i4' Fast bS9.Si fast to the po3at o!' bagiaaias. NG appsoxiaatsly Z.OO acre~e clad ~siug = partiaa of the Southtatst 1~4 0 >-sat3oa 11 Township 7 Sontb, Ssa,~e 7 ilast, i!, D. ~. ie !:. sT1t3TKl1 at a pa1aC oa tl,e >Wstotcly li~~a of t.-3t eortuta 1-O uoro tease of 3sud scribssl is tks Dssd tso+s Lloyd >~, Ydvards, st wr, to Joo /1. Sorci. sL vs. datsd >~sbrewry S, 19iS, rsaorded Pobruary I0, i9ri5, in Saeolc lti3 d. fit., pare Z .Scats Clars County ftgcords. dilstaat thersoa 3out:h 0' OS' Lest 2ibi.i !sat trot as iro,a Dipe is ttx ciantsrl3as of lio+esats~ad kosd; thcoas South 0. 08' Fiat alvajr the Lasttrl,~- lice at said f0 acts tract 36.00 ~ alt Lo the liasshoastsrlT cotasr ~-f .leaf esstaii 2 sera erect a# la~4d dssc is the Dosed fxos Jvs A. sivrai~, et ee~c, to K. Jatcawleh, st tis, dated lsebras y 1s:, 1litl in look 1569 O. !., rugs 37, 8a:eu Clara Cotiwty laostda; ug tbsaas Isowstb 89' fi' S~ost a2o~-s the tiorch+rrly 1#tea eF tai.! 1 acre treat S4. S4 fsas to the >itvrtLirsstorly aeornar ttearso>E ose tbs tia~ts;arty 23ae off. , said ears trues Me thoeies li~rtA 89' 6i' mat along 'said isait end lino S6 t+ot: sveea 'eLanc• Horch 89' i4' Sast cad parallel wilt. tt'ss ttortkarly tlaa ot; said 2 +scr«. t:sat ie9.SS fast to'El~ poine o!° baisu~ing. . 21114 spptoxiaatsly 0.83 acrep aa~d tysicy~ a portior. of ~Slee 5oeittursst 1/i o>E isc 1, zossship 7 Soutb, lti»ge ~: f~Teats K. D. s. i K. r...... ..r .~w~.~ .. . i1RG!! *JNLCir.S 1 cad 2 #1Z that pOrtias tl~aacdo! dasCtcibld u Ya~Casls 2 cad 2 t2ia nssd iseel M. Jskaviab. st ux.• to flea Islets of Califos~ala. rscordad dat=es 1Z, 196i is !soot 6b29. 0. >R.. ?s3s SSb, Santa Clara County ssaeerda, sad s~ors paacCiculery dsacrtbed as talltr,+st . at the Southvastorly cosncr of Cleo 2.OO~aai+o parer! o[ 2sad aoavtyad tNiTIALs to K• ~ ~~'~h, •t u>t., >,y need lrswsdsd >rsbruur~ 13. 29i9 is yak 1569 of Ollie T.acorda, page 37; ~ `~'~ t sloaj elver. So+vtlessly tins of said parrcal Sout:e ll9' 1S' 33" Lst: 135.!2 fast! tra a mot that SsaYS lfortb i6. 11' i3" Nsst, alas= a morns to tlfs risbt b a radial o! 1rri7.OQ last, t~hsau>ih so aaa;is at' i• ~' u' ~ sra are laaa~t o! iI3.90 fast' '; iso+s a taa~as t>sae >t+atars ltortt>a 12. 18' 3S" Wet, aios~ a see~a to t#s• . tii~ ~ a udiw of SOO.Ot7 1Mt tleacOWSh aye aajl.s~ st 7' 31• ]i", a* eta leaa)rtle - .. EXHIBIT "A" CA-2151B/Hwy 280/87 10555 Mary Avenue Cupertino, C'A 95014 APN: 326-06-052 o[ 77.0 tent to tba 5osthsrly lion of ttM~ parcel ^ol laai ~-v~ayod to tits Scats o Cal3.tat'wis ay Dead srae:daJ Octoly~sr Z2~ 1159 is :Dolt iSd2 of Olt3e3a3 A+~cotds pal{r iT9i aloa~ lase said 13~a ~lortk a9' 1J' 33" LTe~et 9x.69 asst to the psstarly liar o! tba ps~tcsl of lamt eogveyad to tha states of t.aliive~aia by Dstd towrdsd Dereobe 1. 2960 Zs 3voic i99i of Olticiil ltvcurd~c. Pags 436: t aloes last said lies tooth 0• ST' 03" Wrst llla.pp fast tp t1~ pout of esaat. . O.ifi of an aar+e. wtea or 2wra. As to 2 aiwvt. tltijx c~MV~•r:atco 1r r:~d~ C.~t• lha~ ru~~kn •.f ri ltM~lwlr sad thr ator iwsoby svlsatws sad Yolsuqussiws •to tiw 8raattia any a.+d nil abrtts~ :fights of acacss~ appurtaaan= to rat-tor': Ysewiains psopatCCy, iu atad to sa31 s~++•Y• CClQt>:ilC at eia Soathsastsrly rosaar of the- 2.00 acs: parcel 0! lied Coaveysd to K. J ab. at nx, by Deed sscordsd fia:brssary 18, 19th 3a Dook IS69 of OtEiet lanosda. Dssa ]7= t alanr the sotittbasly liaa o! said ~parcal Nort>r i9' 1S' ~3" tiisst 30.00 teat= 1lorth•0' S2' 3l" last 188.09 list to, tiw 13nr cossws to ti+a is+ado, ii4w Of• issrl~~ of ii~d K. .~i>yioY~Cit. it v:K. *nd O~ doo fOL".'~.. 4! Wt~ thswe aloes list said lies Sauth a9. 1S' 33" Fast 10.00 last to t>re line rot^ood to tbs s, aov or iosrerlr. o! said K. ~Jakov3ah;•at-ax;-and eE Noun i. Nat ~ at a1; t a7.oai isst said lies: South 0` S2' 31" 1Jsst 183.09 fast to tbs point of t. 0.130 0l as ears, cars or lea:. •: ?ba ad d3etogCSi uosd la tl-s sbo~vs dssasiptioss ass set eba Callforaia Cosy iystsr. Zoaa 1. ~tltiply tltis albaiw diataaaae ~ 1.OOOOilS to obtsis 3rou~M al d3at~tCSS. INITIALS ~,: Garage O 10x20 Nextel Shelter New Monopole Existing Pac Bell Not to Scale CA-2151B Office Storage Units Existing Monopole to be removed T Hwy 85 ~~ y ,~ o z~.N wog N„ ~ ~ ... `~ ~ l 1 '~ ~aa \p C N ~ ~ ~ ~ Parking Lot Mary Ave ~~~ ~ :~, C'~ N ~ (!~ ~ ~~ M -+~I ~ y N ~ 00 O 0\0 J CITY OF CUPE~TINO City Hall ,~ 10300 Tone Avenue -~i Cupertino, CA 95014-3255 0 (408) 777-3354 ~U ~ FAX (408) 777-3333 PUBLIC WORKS DEPARTMENT Sum>rriary AGENDA ITEM r E~GENDA DATE June 19, 2000 SUBJECT AND ISSUE Authorization for execution of Antenna Site Lease Agr~:ement between the City of Cupertino and Nextel of California, Inc., a Delaware Corporation dba Nextel Communications BACKGROUND Nextel of California, Inc. desires to utilize the City's Service Center to erect an antenna for wireless antenna. The City benefits by leasing property and receiving a revenue stream. Terms of the Agreement The following are the high points of the agreement: • The term is for five years and two renewable options of five years each, bringing the total to 15 years. • The size of the area leased by the City i~~ approximately 600 square feet at the rear of the Service Center adjacent to the freeway. • The facility will consist of an antenna pole, to be approved by the Planning Commission, and a small building to house equipment. • The lease is $1,800 per month with a cost oi~ living increase of 5% per year. STAFF RECOMMENDATION Staff recommends that the City Council adopt Resolution No. 00- '~, authorizing the Mayor to execute the Antenna Site Lease Agreement with Nextel Communications. ~~pprove~fo su, fission: ~.,-.~ ~. G` Donal D: Brpwn City Manager Printed on Rec~~cled Paper l ~~ l RESOLUTION NO.00-184 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO AUTHORIZING EXECUTION OF ANTI?NNA SITE LEASE AGREEMENT BETWEEN THE CITY OF CUPERTINO AND NEXTEL OF CALIFORNIA, INC., A DELAWARE CORPORATION, dba NEXTEL COMMUNICATIONS WHEREAS, there has been presented to the City Council an Antenna Site Lease Agreement for the lease of facilities located at the Cupertino Service Center, 10555 South Mary Avenue; and WHEREAS, the provisions, terms, and conditions of the aforementioned agreement have been reviewed and approved by the City Attorney and the Director of Public Works. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Cupertino hereby authorizes the Mayor and the City Clerk to execute said agreement on behalf of the City of Cupertino. PASSED AND ADOPTED at a regular meeting of the City Council of the City of Cupertino this 19"' day of June, 2000, by the following vote: Vote Members of the C~ Council AYES: NOES: ABSENT: ABSTAIN: ATTEST: City Clerk APPROVED: Mayor, City of Cupertino l ~ -- v ~ ~.. ~l ~~:~ -. RESOLUTION NO.00-184 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO AUTHORIZING EXECUTION OF ANTENNA SITE LEASE AGREEMENT BETWEEN THE CITY OF CUPF;RTINO AND NEXTEL OF CALIFORNIA, INC., A DELAWARE CORPORATION, dba NEXTEL COMMUNICATIONS WHEREAS, there has been presented to the (~ity Council an Antenna Site Lease Agreement for the lease of facilities located at the Cupertino Ser,~ice Center, 10555 South Mary Avenue; and WHEREAS, the provisions, terms, and conditions of the aforementioned agreement have been reviewed and approved by the City Attorney an~i the Director of Public Works. NOW, THEREFORE, BE IT RESOLVED ghat the City Council of the City of Cupertino hereby authorizes the Mayor and the City Clerk to execute said agreement on behalf of the City of Cupertino. PASSED AND ADOPTED at a regular meeting of the City Council of the City of Cupertino this 19"' day of June, 2000, by the following vote: Vote Members of the City Council ~~- AYES: Burnett, Chang, James, Lowenthal, St:~tton NOES: None ABSENT: None ABSTAIN: None ATTEST: APPROVED: /s/Kimberly Smith /s/John :itatton City Clerk Mayor, City of Cupertino ~e<aware P.~s 2~ie .first ,State I, HARRIET SMITH WINDSOR, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY TAE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF MERGER, WHICH MERGES: "TOWER ENTITY 7 LLC", A DELAWARE LIMITED LIABILITY COMEANY, WITH AND INTO "TOWERCO ASSETS LLC" UNDER TAE NAME OF "TOWERCO ASSETS LLC", A LIMITED LIABILITY COMPANY ORGANIZED AND EXISTING UNDER THE LAWS OF THE STATE OF DELAWARE, AS RECEIVED AND FILED IN THIS OFFICE THE TWENTY-THIRD DAY OF SEPTEMBER, A_D. 2008, AT 2:13 O'CLOCK P.M. 4595986 8100M 080978140 You may verify this certificate online at corp.delaNare.gov/authver.shtml. Harriet Smith Windsor, Secretary of State AUTHENT I CAT ION : 68 69 0 67 DATE: 09-23-08 State of D~elawa3:++s Secretary of State Division of Corporations Delivered 02:08 ~1 09/23/2008 FILED 02:13 PM 09/23/2008 SRV 080978140 - 4595986 FILE CERTIFICATE OF MERGER OF' TOWER ENTITY 7 LLC (a Delaware limited liability company) ANI) TOWERCO A:iSETS LLC (a Delaware limited liability company) The undersigned, a limited liability company formed and existing under and by virtue of the Delaware Limited Liabilit}~ Company Act DOES HEREBY CERTIFY THAT: l . The name and state of formation of each of the constituent limited liability companies to the merger are as follow~~: Name State of Formation Tower Entity 7 LLC Delaware TowerCo Assets LLC Delaware 2. An Agreement and Plan l~f Merger between the parties to the merger has been approved, adopted and executed by each constituent limited liability company in accordance with the requirements of Section 18-209 of the Delaware Limited Liability Company Act. 3. The name of the survivin; limited liability company shall be TowerCo Assets LLC. 4. The Certificate of Formation of TowerCo Assets LLC as now in force and effect, shall continue to be the Certificate of Formation of said surviving limited liability company until amended and changed pursuant to the provisions of the Delaware Limited Liability Company Act. 5. The merger shall be effecl:ive upon the filing of this Certificate of Merger with the Secretary of State of the State of Delaware. 6. The executed Agreement +ind Plan of Merger is on file at the office of the surviving company, the address of which is c/o TowerCo II Holdings LLC, 5000 Valleystone Drive, Cary, North Carolina 27519. DacN;l1S1:533955Dv1 7. A copy of the Agreemertit and Plan of Merger will be furnished by the surviving company, on request and without: cost, to any member of any constituent limited liability company. Executed as of September 23, 2008. Tt~WERCO ASSETS LLC Name: Daniel Hunt Title: Authorized Person naa: us~:s339sso~i October 20, 2008 CITY OF CUPERTINO CA DEPT OF PUBLIC WORKS 10300 TORRE AVE CUPERTINO, CA 95014-3202 Dear CITY OF CUPERTINO CA: Re: Lease Agreement dated June 14, 2000, by and between CITY OF CUPERTINO CA ("Landlord") an~~ Nextel of California, Inc., demising certain real property located in the County of Santa Clara, California ("Property") Site Name: Deanza i Stevens Creek; Site Number: CA2156 TowerCo Effective September 23, 2008, Tower(:o Assets LLC ("TowerCo"), acquired the above referenced tower. This letter is your written notification of the assignment from Nextel of California, Inc. to TowerCo. Our records indicate that the Lease Commencement Date was December 31, 2000. Please indicate on the attached Landlord Information Form if this date is not correct. The enclosed rent check is for the month of November. In the event that you receive your payments through direct deposit, your banking information will be transfen•ed from Sprint and will be processed over the next few pay cycles. You will not need to complete a new direct deposit form. In an effort to ensure efficient communication with property owners and to verify our Landlord database, we ask that you take a moment to complete the attached forms and forward the completed forms to our office: TowerCo Attn: Property Management 5000 Valleystone Drive Cary, NC 27519 Main Number: (919)469-5559 or (866)460-5559 Fax Number: (919)469-5530 We thank you for your cooperation and look forward to doing business with you. Sincerely, C~ ~ __ ___ __,,.- Jennifer A. Courtemanche Director Lease Accounting TowerCo Enc. 5000 Valleystone Dr f 1 919.469.5559 ~ ~ 919.469.5530 ' ;info@towerco.com ~' ~ www.towerco.com Cary, NC 27519 i ~ CUP201 TowerCo Landlord lipformation Form Site Name: Deanza / Stevens Creek Site Address: 10555 Marv Avenue - (H~~ Pacbell Monopole -City Yard Cupertino, CA 95014 TowerCo Site Number: CA2156 Site Lease Commencement Date: December 31, 2000 Landlord Contact Information: Name: Address: City: State: Zip: Phone: Fax: Email: Return to: TowerCo 5000 Valleystone Dr. Cary, NC 27519 Fax: (919) 469-5530 Special Instructions/ Comments: AUTHORIZATION AGREEMENT FOR CIIRECT DEPOSITS (ACH CREDITS) TOWER ID CA2156 LESSOR NAME (we) hereby authorize hereinafter called TowerCo, to initiate credit entries and to initiate, if necessary, debit entries and adjustments for any credit entries in error to my (our) Checking Savings account (select one) indicated below and the depository named below, hereinafter called BANK, to credit and/or debit the same t~~ such account. BAN K NAME BRANCH CITY STATE ZI P TRANSIT/ABA NO. ACCOUNT NO. This authority is to remain in full force and effect until TowerCo has received written notification from me (or either of us) of its terirination in such time and in such manner as to afford TowerCo and BANK a reasonable opportunity to act on it. NAME(S) (PLEASE PRINT) SIGNED X SIGNED X DATE DATE ***** ATTACH A VOIDED CHECK***** Form YY'9 Request for 'Taxpayer (Rev. October 2007) Identification Number and Certification Oapartment of tlts ireaeury intanwl Revenue SerNes N qO a ~~ ~~ e N V) Name (as shown on your income tax return) Give form to the requester. Do not send to the IRS. eualnesa name, If different Irom above Cheek appropriate box: ^ IndivldueVSole proprietor ^ Corporation ^ Pannership Exempt ^ Limited liability company. Enter the tax classification (t)=disregarded entity, C=corporation, P:partnership) - ,,.,,,, ^ payer n Osier (see Inehuctlonsl - Address (number, street, and apt or aulle no.l Clly, atala, and ZiP codo ust account number(sl here (optional) Requesters name and address (optlonaQ -er Identification Number Enter your TIN In the appropriate box. The TiN provided must match the name given an Line 1 to avoid social secudty number backup withholding. For individuate, this Is your social security number (SSIV). However, for a resident ~ alien, sob proprietor, or disregarded entity, see the Part I instructions on patge 3. For other entities, It Is your employer Identification number (EIN). if you do net have a number, sell' Now to get a TiN on page 3. or Note. 1- the account Is in more than one name, sae the chart on page a tar guidelines on whose Employer Identlficatlon number number to enter. I Certification Under penaltlea of perjury, I certify that: i. The number shown on this form is my correct taxpayer identification number (or I am waiting for a number to be Issued to me), end 2. lam not sub}act to backup withholding because: (a) I am exempt from backup withholding, or (b) I have not been notified by the Internal Revenue Service (IRS) that I am subject to backup withholding as a result of a (allure to report all Interest or dividends, or (c} the IRS has notified me that I am no longer subject to backup withholding, and 3. I am a U.S. citizen or other U.S. person (defined below). CertMlcatlon Instructtone. You must cross out item 2 above if you have b~aen notified by the IRS that you are currently sub}act to backup withholding because you have tailed to report all Interest and dividends on your tax return. For real estate transactions, item 2 does not apply. For mortgage interest paid, aoquisition or abandonment of secured property, cancellation of debt, contributions to an individual retirement arrangement (IRA), and generally, payments other than interest and dividends, you are not required to sign the Certificat(on, but you must provide your correct TIN. See the Inatructiona on page 4. - Sign 18lgnawre of Here U.s. oaraon - Data - General Instructions Definition of a U.S, person. For federal tax purposes, you are Section references are to the Internal Revenue Code unless considered a U.S. person if you are: otherwise noted. • An individual who is a U.S. citizen or U.S. resident alien, Purpose of Form • A partnership, corporation, company, or association created or organized in the United States or under the laws of the United A person who is required to file an information return with the States, IRS must obtain your correct taxpayer identi8catlon number (TIN) • An estate (other than a foreign estate), or to report, for example, income paid to you, real estate • A domestic trust (as defined in Regulations section transactions, mortgage interest you paid, acquisition or 301.7701-7). abandonment of secured property, cancellation of debt, or contrbutions you made to an IRA. gpecial rules for partnerships. Partnerships that conduct a Use Form W-9 only it you are a U.S. person Qncluding a trade or business in the United States are generally required to pay a withholding tax on any torelgn partners' share of income resident alien), to provide your correct TIN to the person requesting R (the requester) and, when applicable, to: from such business. Further, in certain cases where a Form W-9 has not been received, a partnership is required to presume that 1. Certify that the TIN you era giving is correct (or you are a partner is a foreign person, and pay the withholding tax. waiting for a number to 6e issued), Therefore, if you are a U.S. person that Is a partner in a 2. Certify that you are not subject to backup withholding, or Partnership conducting a trade or business in the United States. provide Form W-9 to the partnership to establish your U.S. 3. Claim exemption from backup withholding if you are a U.S. status and avoid withholding on your share of partnership exempt payee. It applicable, you are also certifying That as a income. U.S. person, your allocable share of any partnership income from a U.S. trade or business is not subject to the withholding tax on The person who gives Form W-8 to the partnership for torelgn partners share of effectively connected income. purposes of establishing its U.S. status and avoiding withholding on its allocable share of net income from the partnership Note. If a requester gives you a loan other than Form W-9 to conducting a trade or business in the United States is In the request your TIN, you must use the requester's form ii it is following casaa: substantially similar to this Form W-9. • The U.S. owner of a disregarded entity and not the entity, Cat No 10291X Farm Wig (Rev 10.2007) EXECUTION COPY ASSIGNMENT AND ASSUMP7i ION OF GROUND LEASE THIS ASSIGNMENT AND ASSUMPTI01~1 OF GROUND LEASE ("Assignment") is made, entered into and effective as of this Z~ day of September, 2008 ("Transfer Date"), by Nextel of California, Inc., a Delaware corporation, having an address at 6391 Sprint Parkway, Mailstop KSOPHTO101-22650, Overland Park, Kansas 66251-2650 ("Assignor"), to Tower Entity 7 LLC, a Delaware limited liability compan~~, having an address at 6391 Sprint Parkway, Mailstop KSOPHT0101-22680, Overland Park, Kansas 66251-2650 ("Assi nee"). The notice address for the Assignee shall be: Tower Entity '7 LLC c/o TowerCo Acquisition LLC, 5000 Valleystone Drive, Cary, North Carolina 27519. Preliminary S~~atement: Pursuant to that certain Purchase and Sale t~.greement dated as of July 23, 2008 (as amended, modified and supplemented from time to time, the "Purchase Agreement"), by and between TowerCo Acquisition LLC, the parties identified as sellers therein (including Assignor), Sprint Spectrum L.P., as agent for such sellers and the "Tower Entities" (including Assignee) that become parties thereto, Assignor has, among other things, agreed to assign all its right, title and interest in and to the Ground Lease (as defined on Exhibit "A") to Assignee and to assign, transfer and convey to Assignee its right, title and interest in all Towers and Tower Related Buildings and Equipment located on the land demi::ed under the Ground Lease (as such land is further described in Exhibit B (as so described, the "Real Property")). All capitalized terms not otherwise defined in this Assignment shall have the meanings ascribed thereto in the Purchase Agreement. In consideration of the mutual covenants contained in this Assignment, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Assignor and Assignee hereby agree as follows: 1. ASSIGNMENT. As of the Transfer Date, Assignor for good and valuable consideration as recited in the Purchase Agreement;, the receipt and sufficiency of which are hereby acknowledged, does hereby convey, assign, contribute and transfer all of its right, title, and interest in, to and under the Ground Lease, and the leasehold, license or other interest created thereunder, to Assignee and its successors and assigns. 2. ACCEPTANCE OF ASSIGNMENT. Assignee as of the Transfer Date, hereby accepts the foregoing assignment of the Ground Le<<se and assumes all of the Assumed Liabilities arising under or pursuant to the Ground Lease. CA2156/CA2317 DeAnza / Stevens Creek 3. APPURTENANT PROPERTY, EASEMENTS, AND IMPROVEMENTS. Assignor hereby grants, bargains, conveys, contributes and transfers to Assignee, its successors and assigns forever, all of Assignor's right, title and interest (subject to Permitted Liens) in and to (i) all appurtenant property and rights relating to the Real Property, (ii) all easements and rights of way benefiting the Real Property, (iii) all Towers located on the Real Property and (iv) all Tower Related Buildings and Equipment located on the Real Property and all other Tower Related Assets located on or relating to the Real Property; excluding, in the case of clauses (i) through (iv), any and all Excluded Assets. 4. BINDING EFFECT. This Assignment will be binding on and inure to the benefit of the parties herein, their heirs, executors, administrators, successors-in-interest and assigns. 5. GOVERNING LAW. This Assignment and its validity, construction and performance will be governed by and construed in accordance with the internal laws of the State of Delaware, without regard to principles of conflicts of laws, except to the extent mandatorily governed by the laws of the state in which the Real Property is located. 6. COUNTERPARTS. This Assignment may be executed in two or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. 7. PURCHASE AGREEMENT. This ~~ssignment is intended to implement the provisions of the Purchase Agreement and shall not be construed to enhance, extend or limit the rights or obligations of Assignor or Assignee (it being understood that Assignee will not be deemed to be assuming any Excluded Liabilities). 11o provision of this Assignment shall in any way modify the express provisions (including without limitation the warranties, representations, covenants, agreements, conditions or any of the obligations and indemnifications of the parties hereto with respect to the subject matter of the Purchase Agreement) set forth in the Purchase Agreement. To the extent any provision of this Assignment is inconsistent with the Purchase Agreement, the provisions of the Purchase Agreement shall control. 8. AMENDMENT. This Assignment may not be amended, waived or otherwise modified except by a written instrument signed by the parties hereto. THIS ASSIGNMENT has been executed by Assignor and Assignee effective as of the Transfer Date. [Signatures on following pages] CA2156/CA2317 2 DeAnza / Stevens Creek Witnesses: ASSIGNOR: Nextel of California, Inc., a Delaware corporation By: Print Name: Print Na e: JOhti F. Buchert Title: Assistant Secretary `~c:~•~ `TE~~ Print Name: r.ri~ `Ie.r1 k~~ ~ State of New York County of New York The foregoingg instrument was acknowledged before me this ~4•~day of September, 2008, by Jdm F. 8uohort an Assistant Secretary of Nextel of California, Inc., a Delaware corporation, on behalf of the company. The above-named individual is personally known to me or has produced a drivers license or passport as identification. Notary Public Print 1`lame: My Commission Expires: BRETTE TANNENBAUM Notary PubNc, 9t~e of New YoOt No. 01TA81776~14 CommteabnE~Mes~ YNovert~7M1 CA2156/CA2317 3 DeAnza / Stevens Creek ASSIGNEE: Tower Entity 7 LLC, a Delaware limited liability company By: Print Name: Name; J~ ~~ Title: Assistant Secretary Print Name:~A~p,, ~'~~ ~~~., k, ~~ State of New York County of New York Th J o~regoinp ' ~trument was acknowledged before me this ~~ day of September, 2008, by F an Assistant Secretary of Tower Entity 7 LLC, a Delaware limited liability company, on behalf of the company. The above-named individual is personally known to me or has produced a drivers license or passport as identification. Notar~~ Pu lic Print P1ame: My Commission Expires: . TANNEWBAUM 91r1e d Now Yot1c ~ ^i IJ w1Y~ou^t~ Cb^ expires November 7 , 2017 CA2156/CA2317 4 DeAnza / Stevens Creek EXHIBIT --A-- The Ground Lease That certain lease agreement (the "Ground Lease") dated June 14, 2000 by and between City Of Cupertino, as lessor, and Assignor, as lessee, with respect to that certain parcel of real property ("Real Property") located in the County of Santa Clara, State of CA, which Real Property is more particularly described on Exhibit "B" attache~3 hereto. The Memorandum of the Ground Lease is recorded in Book ,Page _ or as Official Document/Instrument Number , in the Register's office of Santa Clara County, State of CA. CA2156/CA2317 5 DeAnza / Stevens Creek E ibit B Real Proc-erty EXHIBIT "A" CA-2151 B/Hwy 280!87 10555 Mary Avenue Cupertino, CA 95014 APN: 326-Of.-052 Pa fi0. t -- ._...._.._. ....... ... ~C MC wt w pvtpt as she YsataYiy li~wt oE,,tl+at cortgiw 40 acts toast o[ !.sad Bribed 1a tM Dasd troai Lioyi 4. Wwtzdr, at Luc, is .1oa A, iorci, at ~ dat+ed Tatirwry A, 1lf3. rstordad ~labrwtzr 3:0. igi3 Sa~ aaok ltf~ 0. k.; pap ,lama Clara Cowas7 Wsarda, ii»tsgt eharwa Natth 0. Oi' Staat 2520. last troll aft ices pips iu tM es~atccliue of fiowsstsad Yoad= tMacs souk 0. 06' Est ales= eM ssatarly l.igr at said iQ acre t~eaat SZ.OtI test w aA iroa pips st ehs sostbssttarir coegar tbsssoti rvr ebraca 6outh t4. 44' 1~itst s1oW; tM sonthssir ilea of wid 40 acss treat 59.32 tse:.o sA 3tan pipe at the SauchuRStsr17~ toetar thassoi; tl+saaa Ibrcb 0. 08' 3a" hest a:tou~ the iia:tarly lies of aaL! i0 =cra tsset ' 1.1.09 tastf sMaea ?loofa 89' 44' xait 6Sl.:fi Post to the point at batisaia;. spproxLatsly 2.00 acsss reel *siaj s partioa of eke iout>>Ntst 1/4 o fsatioa 23 4ovaahip 7 South, La,l+~ x Waat, M. D, 9• t !!. 31tAi10i ae a point oq ttts F,lstariy liq~t of text CarttlLt 40 earn ttoct of 3r~ad saYibad to the Dead fro+s Lloyd L. sdvssds, at ux, to Joa A. forai, of wc, drtsd rsbrwnr t~ 1945. rsaordad l~abrwtry 20. 1965, is iaok 12dS 0. 3t., pate 2 , Seats Clara Ca•aty ltRcacds, di~-wse ttteraon ~teh o• p6• Lut 2464.; fast flow as lion papa is the csrtterlige of tiataatssd 3;osd; tbeaea poach 0' Oa' left sloes tlta LrattYl~- lf~a at said 60 sera fleet 36.00 sat to tbs lioYtlwaCariT cotuar oJ' .MC castr3s Z sera Brant of lead daas is tt+ mod tuo~ Joa M Sorai, st apt, to ll, Jsitsl-ish, at tpc, dated yabrr~t y il, 1Kl iw >reotc 1569 O. 1., l'agr 37, lanea C3.asw Couatp ts•wrLi tbseea seutA =9'• ii' i~hst aioa~l tl~s Norrl++~riy ].tea et raid 2 aura , Boast .Sd.S4 feat to tl~s Kvs#1~vastas3,~ aose~as thereof oa tl.a Rltatarit leaf e!. . swat rare traati f thsac~ N•rtla p!' ii' W+ae aiopi; Paid l+tst uawoa 3ina St t+ot: :uwa 'than~a North a4' •i' laist +sad l~are12a1 vit~+ the llaetl+stly llaa eF said 1 +ksa ttaot Lb9.SS teat to'Rla point et Leji.~-.tiat. IIID wPPtoxisrtslr 0, l3 acres as<l Oaiat s portior. aY •`.ba 5owttwsat 114 of tea 1, Tvsast~hip 7 Sentb, Snags Z Nutt. K. D. i. i K. l~ tJISCpLS 1 and 2 a1I that pwrtia- tbazsof dsicribid •u ParaaL 2 and 2 tlta Datd iser 1[. Jatoviah, at ui:^• to the =tale of Califotaia. tsscosdad Ausra 1Z, 1!K is bot 6629, 0. S.. ls~~ 336, Santa Cissa Cotsrty Naaarda• and aora pasricultxy d~acr2bsd sa J'allo•~s 's at tln pouthyevtvrly coraoz o1' Rho 2.OO~aaio paecsi oC lead eaavsyed ;y~E~;:,•:. to x. alras•ieh, at w-, 1y Dead tscotdad Ysbrwts~ lp, a94! SA 3ook 1369 of ..__.....~ Ottie l.eotda, pnpa l7{ ._, sioa,i tlta iogtbasly liaa o! said pares! 3outs E9' 2S' 33" Zaee 3,3].!2 , lest= _.i ti'l+tt s ts~oaG that basua ltosth i6. 12• i]" Ttaat, s3.ao; a etflMS to tM risAe b a ~rwas,.a of ]L4~7.00 teat, tbrogttt sq aatia s! i• 35' Z1', as ere "" f 3~tatt of Li3,l0 tarts ~ ions a Wtsot ~t3tat Mass ltortb 12. 16' 3S" Ws~, s~,oa ~a axsw to t1wt~ ~ ~--.. { sitlte tip x saditn of i00.p0 test tkltoaplt apt aapl.s~ st T u x • ss sec lasttl . _.._.•{ , .. CA21565 DeAnza / Stevens Creek Exhibit B Real Pro~pert~ ~. EXHIBIT' "A" CA-2151B/H~wy 280/87 l 0555 Mary Avenue Cupertino, C~~ 95014 APN: 326-06-052 st 7r.0 loaf .to tle iortl~at~"1r iiws et tine Masi o! leas ~ to t9r Ss+1ts • Ci3ilors:a -t ad s+rees'le~l bceow~r 22, 19J9 !at 9w1~ 4St2 e! Otti~t3st teeas~s ple i7ft elee0 Les ..ii ltss 1lvetk it• 1=' 7r' N.st 91.N tNt se tM ~etarly line o! tl~t Ht~ ei Lwd eoq~rayst eo tha stave e! CalttoeaL- b~- botd towNod ids 1. flip is ~ooic if•l~o of.'O(t~ttalMat t +(~i-~ N`~le /4~~ii/ ~~` e~ ~t Y~ ltrs >toYR~1 0~ +~' Os~ I.A~• M~.Y~ iel~ t'O ~~M p..q~ O~ • A.~fi of ~ agra, woe+e es Joao. As !o l aUeve. this G'hv~MCt~ to ws~ for t~ ~+in'iMwaw al" i1 teriwr an! tlr r twnbl- wlaooe seat ~tiaqutytwa to tlw ~t•ertsa asy aei i~31 atirttes nthss et aeasss~ apyurasonc co •r~n-oos': rw faz• }reprsCy, ie qd to east trowey. at the leneMaaesr~r aetaor a! s,bo 2.00 arta pNtee2 0! 3i~ seoce~rad se 1[. J et yx, 1~r Dse/ rseoti~l la~etiary 31l. 1941 ~t took Isi! st Ollie 9eeaa+ta, Mp ~?t . lased aLeR t6a lart~es3y ilea et qii p,~seai Nart~ t9' 33' 33" Twat SO.OQ slott'w•0• S3' ~" iesz it0.09 lss! lee. the 13ae eowaR to ttis 3stis• . aov a! , .! osi~ ti..1rl~rieh. ee ~~ +-di et .fos Oe~. oe ~i to sUs els,sow ~r !sue ~.~ssei~ 1I.sJ, »" tae 30.OQ lone a ens Zsae soaeon lla • K ui 'tOeiah,r' st-mcr-+mt et Me~arra.~ • e alert s.e~ wii 13oe ivas~ 0` ,!t' :~i• host 136.09 toe to sia ~e3st el • 0.310 0! as sera. use or laaa. • 'i'M aM ~esaaes pei is tl~s stiem~ daasts-e3erA are oa tlr Caiiteesta ~~ qs 1. ~Wtt4piY au. atiri+re tietaraea y 1.000pilS a etiteta !1't1ilAtS ~,. CA21565 DeAnza / Stevens Creek Exhibit B Real Property Garage ^ O Existing Pac Bell Not to Scale !^I • A A ~ ~ T l,A-l 1,1.13 Office Storage Units Existing Monopole to be removed 1 Hwy 85 10x20 Nextel Shelter New ..~~ u A O ~ z ~ "' ~ x w o~ N.. ~` n ~ ~~ ~ ~, o~ O~ Y o~~ '~ ~ `^ o ~ N N b~ ja W O v Parking Lot Mary Ave CA21565 DeAnza / Stevens Creek ACORD~ CERTIFICATE OF LIABILITY INSURANCE OP ID AN DATE (MM/DDIYYYY) TOWER-1 10 08 08 PRODUCER ThIIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION O~JLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE Arthur J Gallagher RMS HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR 3341 Bandford Way Ste 1 ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. taleigh NC 27615-2099 Phone:919-847-3318 Fax:919-847-3160 INSURERS AFFORDING COVERAGE NAIC# VSURED INSUFtERA: Federal Insurance Com an 20281 INSURER B: TowerCo Asaeta LLC 112 Tower View Ct Cary NC 27513-3595 INSURER C: INSURER D: INSURER E: THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACTOR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALI. THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. TR NSR TYPE OF INSURANCE POLICY NUMBER DATE MIIA/DDIYY DATE MM/DDIYY LIMITS GENERAL LIABILITY EACH OCCURRENCE S 1 r 0 0 0 r O O O A X COMMERCIAL GENERAL LIABILITY 35836282 10/21/08 10/21/09 PREMISES Eaoccurence S 1r 000, 000 CLAIMS MADE ~ OCCUR MED EXP (Any one person) S 10 ~ 0 0 0 PERSONALBADVINJURY S1r000~OOO GENERAL AGGREGATE S 2~ 0 0 0 r O O O GEN'L AGGREGATE LIMIT APPLIES PER: PRODUCTS -COMP/OP AGG s Included POLICY ~ECT X LOC AUT OMOBILE LIABILITY COMBINED SINGLE LIMIT 1 000 000 A X ANY AUTO 73532573 10/,21/08 10/21/09 (Eaaxident) S , , ALL OWNED AUTOS BODILY INJURY SCHEDULED AUTOS (Per person) S HIRED AUTOS BODILY INJURY NON-OWNED AUTOS (Per accident) S PROPERTY DAMAGE (Per eccldent) S GARAGE LIABILITY AUTO ONLY - EA ACCIDENT S ANY AUTO OTHER THAN EA ACC S AUTO ONLY: AGG S EXCESS/UMBRELLA LIABILITY EACH OCCURRENCE S 1 O r 0 0 0~ O O O A OCCUR ~ CLAIMSMADE 79845416 10/:21/08 10/21/09 AGGREGATE S 10, 000 000 a DEDUCTIBLE S X RETENTION Z 1 O~ 0 0 0 S WORKERS COMPENSATION AND X TORY LIMITS ER A EMPLOYERS'LIABILITY ANY PROPRIETOR/PARTNER/EXECUTIVE 71720483 10/:21/08 10/21/09 E.L. EACHACCtDENr s 500,000 OFFICERIMEMBER EXCLUDED? E.L. DISEASE - EA EMPLOYEE S 5 0 0 / 0 0 0 It yea, describe under SPECIAL PROVISIONS below E.L. DISEASE -POLICY LIMIT S 500 ~ 0 0 0 OTHER ESC RIPTION OF OPERATIONS (LOCATIONS / VEHIC LE8l EXCLUSION8 ADDED BY ENDORSE MENT /SPECIAL PRO VISIONS :ERTIFICATE HOLDER 00000-1 This Certificate Provides Evidence of Coverage For The Policy Period Shown Above CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATIOI DATI_ THEREOF, THE ISSUING INSURER WILL ENDEAVOR TO MAIL 3 O DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, BUT FAILURE TO DO SO SHALL IMPC~8E NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE INSURER, ITS AGENTS OR REPRESENTATNES. tCORD 25 (2001108) ®ACORD CORPORATION 1988 IMPORT~-NT If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). If SUBROGATION IS WAIVED, subject to the terms ~~nd conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). DISCLAIMER The Certificate of Insurance on the reverse side of this form does not constitute a contract between the issuing insurer(s), authorized representative or producer, and the certificate holder, nor does it affirmatively or negatively amend, extend or alter the coverage afforded by the policies listed thereon. \CORD 25 (2001108)