CC Resolution No. 16-008 Authorizing the City Manager to Execute a Five-Year Antenna Ground Lease Agreement with GTE Mobilenet of California, D/B/A Verizon Wireless for a Portion of Cupertino Civic CenterRESOLUTION NO. 16-008
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO
AUTHORIZING THE CITY MANAGER TO EXECUTE A FIVE-YEAR ANTENNA
GROUND LEASE AGREEMENT WITH UP TO TWO FIVE-YEAR OPTIONS
BETWEEN THE CITY OF CUPERTINO AND GTE MOBILENET OF CALIFORNIA
. LIMITED PARTNERSHIP, A CALIFORNIA LIMITED PARTNERSHIP D/B/A
VERIZON WIRELESS FOR A PORTION OF THE CUPERTINO CIVIC CENTER
WHEREAS, the City Council has considered a request for an Antenna Ground
Lease Agreement between the City of Cupertino and GTE Mobilnet of California
Limited Partnership, a California Limited Partnership d/b/a Verizon Wireless., for the
lease of facilities located at the Cupertino Civic Center, 10800 Torre Avenue; and
WHEREAS, the provisions, terms, and conditions of the Antenna Ground Lease
Agreement have been reviewed and approved by the City Attorney and City Manager.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of
Cupertino hereby authorizes the City Manager to execute the five-year Antenna
Ground Lease in the substantially similar form as set forth in the draft Lease as
presented to Council and further and authorize the City Manager to negotiate and
execute up to two five-year options consistent with the terms of the Lease on behalf of
the City of Cupertino.
PASSED AND ADOPTED at a regular meeting of the City Council of the City of
Cupertino this 191h day of January 2016, by the following vote:
Vote Members of the City Council
AYES: Chang, Vaidhyanathan, Paul, Sinks, Wong
NOES: None
ABSENT: None
ABSTAIN: None
ATTEST: APPROVED:
74211405.1
ANTENNA GROUND LEASE
Between THE CITY OF CUPERTINO and
GTE Mobilnet of California Limited Partnership,
a California limited partnership,
d/b/a Verizon Wireless
ARTICLE 1
1.1
1.2
ARTICLE2
2.1
2.2 2.3
2.4
ARTICLE 3
3.1 3.2 3.3
3.4 3.5
ARTICLE4
4.1
4.2
4.3
4.4
4.5
4.6
4.7
4.8
ARTICLE 5
5.1
5.2 5.3
5.4
5.5
5.6
5.7
5.8
5.9
ARTICLE 6
6.1
6.2
6.3
74211405.l
TABLE OF CONTENTS
Page
PREMISES AND IMPROVEMENTS .............................................................. 1
Lease of Premises .................................................................................................... 1
Improvements ........................................................................................................... 1
TERM ................................................................................................................ 2
Initial Tenn .............................................................................................................. 2
Option to Extend ......................................................................................... : ............ 2
Commencement Date ............................................................................................... 2
Relocation of Mono-Eucalyptus and Adjacent structures ...................................... .2
RENTAL ................................................................................................ , ............ 2
Base Rent ................................................................................................................. 2
Annual Increase ....................................................................................................... 3
Transactional Costs ................................................................................................. .3
Late Charge .............................................................................................................. 3
Additional Consideration ......................................................................................... 3
USE ................................................................................................................... .3
Permitted Uses ........................................................................................................ .3
Access ...................................................................................................................... 4
Prohibited Uses ........................................................................................................ 4
Approval by the City and Other Agencies .............................................................. .4
Additional Antenna(s) to be added by City ............................................................ .4
Compliance with Laws ............................................................................................ 5
Condition, Use of Premises ...................................................................................... 5
Hazardous Materials ................................................................................... : ............ 5
MAINTENANCE, REPAIRS AND ALTERATIONS ...................................... 8
General ..................................................................................................................... 8
Surrender .................................................................................................................. 8
City's Rights ............................................................................................................ 8
City Repair Obligations ........................................................................................... 8
Security Measures .................................................................................................... 8
Ilnprove1nents .......................................................................................................... 9
City Access ............................................................................................................ 1 O
Lessee Access ........................................................................................................ 10
Lessee Access During Security Alert ................................................................... .10
INDEMNITY AND INSURANCE ................................................................. 10
Inde1nnity ............................................................................................................... 10
Waiver of Claims ................................................................................................... 10
Insurance ................................................................................................................ 1 0
-1-
ARTICLE 7
7.1
7.2
7.3
ARTICLE 8
8.1
8.2
8.3
ARTICLE 9
ARTICLE 10
ARTICLE 11
11.1
11.2
11.3
11.4
ARTICLE 12
12.1
12.2
12.3
ARTICLE 13
13.1
13.2
13.3
ARTICLE 14
ARTICLE 15
ARTICLE 16
ARTICLE 17
ARTICLE 18
ARTICLE 19
ARTICLE20
20.1
20.2
20.3
20.4
20.5
74211405.1
TABLE OF CONTENTS
(continued)
Page
DAMAGE, DESTRUCTION AND TERMINATION .................................... 11
Nontermination and Nonabatement ....................................................................... 11
Force Majeure ...................................................................................... : ................. 11
Waiver .................................................................................................................... 11
TAXES .............................................................................................................. 11
Personal Property ................................................................................................... 11
Real Property ......................................................................................................... 11
Definition ............................................................................................................... 12
UTILITIES ....................................................................................................... 12
SIGNS .............................................................................................................. 12
ASSIGNMENT AND SUBLETTING ............................................................ 12
City's Consent Required ........................................................................................ 12
Net Worth Require1nents ....................................................................................... 13
No Release ofLessee ............................................................................................. 13
Right of First Refusal ............................................................................................. 13
DEFAULTS; REMEDIES ............................................................................... 13
Defaults .................................................................................................................. 13
Remedies ................................................................................................................ 14
No Relief from Forfeiture After Default ................................................................ 14
TERMINATION OF LEASE .......................................................................... 14
Termination by Lessee ........................................................................................... 14
Tennination by City ............................................................................................... 15
Condemnation of Leased Premises ........................................................................ 15
CITY'S LIABILITY ........................................................................................ 15
INTEREST ON PAST-DUE OBLIGATIONS ................................................ 16
HOLDING OVER ........................................................................................... 16
CITY'S ACCESS ............................................................................................. 16
QUIET POSSESSION ..................................................................................... 16
EASEMENTS .................................................................................................. 16
GENERAL PROVISIONS .............................................................................. 16
Severability ............................................................................................................ 16
Time of Essence ..................................................................................................... 16
Additional Rent ...................................................................................................... 17
Entire Agreement, Modification ............................................................................ 1 7
No Warranty ........................................................................................................... 17
-11-
74211405.1
TABLE OF CONTENTS
(continued)
Page
20.6 Notices ................................................................................................................... 17
20.7 Waivers .................................................................................................................. 17
20.8 Cumulative Remedies .................................................................... ; ....................... 18
20.9 Choice ofLaw ........................................................................................................ 18
20.10 Condition to Effectiveness of Lease ...................................................................... 18
20.11 Attorneys' Fees ...................................................................................................... 18
20.12 Brokers ................................................................................................................... 18
20.13 Authority ................................................................................................................ 18
20.14 Non-Liability of Officials and Employees of the City ........................................... 18
20.15 Non-Discrimination ............................................................................................... 18
20 .16 Independent Contractor .......................................................................................... 18
20.17 Conflict of Interest ................................................................................................. 18
20.18 Men1orandum of Lease .......................................................................................... 18
20.19 Estoppel Certificate ................................................................................................ 18
-111-
ANTENNA GROUND LEASE
2.Vlln This Lease ("Lease") is made and entered into as of :Jo .. nu.cu· y !1, 2-0-1-5-, by and
between the City of Cupertino, California, ("City" or "Lessor"), and GTE Mobilnet of California
Limited Partnership, a California limited partnership, d/b/a Verizon Wireless ("Lessee").
RECITALS
The following recitals are a substantive portion of this Lease:
A. City is the owner of certain real property situated in Santa Clara County, State of
California, as more particularly described in Exhibit "A" attached and incorporated by this
reference.
B. Lessee is a limited partnership organized under the laws of the State of California
whose principal business is telecommunications.
C. Lessee requests the lease of certain real property owned by the City for the
construction, installation and operation of a cellular telephone communication facility.
D. City is willing to permit Lessee to lease the property in accordance with the terms, conditions and covenants of this Lease.
E. Lessee acknowledges that this project will require a use permit from the City before this Lease will be effective.
NOW THEREFORE, THE PARTIES AGREE AS FOLLOWS:
ARTICLE 1
Premises and Improvements
1.1 Lease of Premises. City hereby leases to Lessee and Lessee leases from City for the term,
at the rental and upon all of the terms and conditions set forth, a portion of the real property located
at 10800 Torre Avenue, Cupertino, CA APN# 369-31-033, commonly known as Cupertino Civic
Center ("City Property"). Lessee shall lease approximately 743.0 square feet, with an aerial
easement of approximately 112.1 square feet, as described in Exhibit "B" attached and
incorporated herein (the "Premises").
1.2 Improvements. The Premises shall be used by Lessee only to locate multiple
equipment cabinets, landscaping, underground cable and conduit, and a mono-eucalyptus tower
(alternately, the "Mono-Eucalyptus" or "antenna structure") for the location of Lessee's antennas
("Improvements"). The Improvements are more particularly shown on plans, which have been submitted for site development and use pennit approvals, as required by the City. A copy of the
plans is attached and incorporated by this reference as Exhibit "C". The plans shall reflect,
among other things, the height of Lessee's antennas on the antenna structure at 5 5 feet. The plans shall also identify the trees surrounding the antenna structure which Lessee
may trim as it deems necessary, at its expense and in accordance with applicable local,
state or federal law, to a height of 44 feet. It is understood and agreed that the final plan for the
1
74211405.1
Improvements will be the plans approved by the City through its site development and use permit
process( es).
ARTICLE2 Term
2.1 InitialTerm. The term of this Lease shall be for a period of approximately five (5) years
beginning on the Commencement Date and terminating on the fifth anniversary of the
Commencement Date, unless terminated earlier ("Term").
2.2 Option to Extend. Provided Lessee is not in default, either at the time of exercise or at the
time the extended Tenn commences, Lessee shall have the option to extend the initial Term of this
Lease for two (2) additional periods of five (5) years ("Option Period") on the same tenns,
covenants and conditions provided. City shall not unreasonable deny this extension. Lessee shall
exercise its option by giving City written notice ("Option Notice") at least sixty (60) days, but not
more than one hundred twenty (120) days, prior to the expiration of the initial Term of this Lease,
or the successive term.
2.3 Commencement Date. The Commencement Date of this Lease shall be the first of the
month during which the latter of the two dates listed occurs, which are: (i) the date of final
approval of any Building Permit, if required, provided that Lessee is diligently pursuing this
Building Permit after obtaining the necessary Use Permit; or (ii) the date of the vacation of the
wire clearance easement encumbering the City Property by the City (which easement imposes a
height limitation of 15 feet on Improvements located within the easement area).
2.4 Relocation of Mono-Eucalyptus and Adjacent structures. City, on one (1) occasion, may
relocate the Premises to another location on City Property (herein referred to as the "Alternate
Property"), provided:
2.4.1 the Alternate Property is similar to the Premises in size and is compatible for
Lessee's use in Lessee's sole discretion;
2.4.2 City shall pay all costs incurred by Lessee for relocating Lessee's equipment from
the Premises to a mutually agreeable site and improving the Alternate Property so that the
Alternate Property is substantially similar to the Premises, including all costs incurred to obtain all
of the certificates, permits and other approvals that may be required by any Federal, State or Local
authorities as well as any satisfactory soil boring tests which will permit Lessee use of the
Alternate Property as set forth in Section 1.2 above;
2.4.3 City shall give Lessee at least twelve (12) months written notice before requiring
Lessee to relocate;
2.4.4 Lessee must be provided advanced notice of the redevelopment process and layout
of City's intended expansion; and
2.4.5 Lessee's service will not be interrupted and Lessee shall be allowed if necessary to
place a temporary cell site and antenna structure on the City Property during relocation.
2
74211405.l
ARTICLE3
Rental
3 .1 Base Rent. Commencing on the Commencement Date, Lessee shall pay to City as rent for
the Premises in advance on the first day of each calendar month of this Lease without deduction,
offset, prior notice or demand, in lawful money of the United States, the sum of Three Thousand
One Hundred Twenty Dollars ($3, 120.00) ("Base Rent"). Rent ·shall be provided to: City of
Cupertino, Finance Department, 10300 Torre Avenue, Cupertino, CA 95014-3202. Lessor and
Lessee agree and acknowledge that the initial rental payment(s) may not actually be sent until
forty-five ( 45) days after the Commencement Date.
3 .2 Annual Increase. During the Term of this Lease, including the Option Periods, the Base
Rent shall be increased annually by 4%, beginning on January 1, 2016 and effective each January
1st thereafter throughout the Term and any Option Period. The sum shall be adjusted annually
reslilting in a compound rate of increase. For example, the Base Rent for December 1, 2015 would
be Three Thousand One Hundred Twenty Dollars ($3120.00) per month and the rate on January 1,
2016 would be Three Thousand Two Hundred Forty Four Dollars and 80 cents ($3244.80.).
3.3 Transactional Costs. Lessee shall pay to City, as additional rent, any reasonable
transactional costs, which shall include any reasonable attorneys' fees incurred by City as a result
of the negotiation, preparation, execution and delivery of this Lease, any amendment, any future
consent of City required and the preparation and negotiation of an amendment to this Lease
("Transactional Costs") not to exceed Seven Thousand Five Hundred Dollars ($7,500.00) without
prior written approval of Lessee. Lessee has provided a deposit to City to cover any transactional
costs. City shall furnish Lessee with an invoice reflecting the Transactional Costs deducted from
the deposit. In the event that the deposit is exceeded or costs are incurred without a deposit than
City shall provide an invoice to Lessee and Lessee shall make full payment to City of these costs
within forty-five ( 45) days from the date ofreceipt of City's invoice.
3.4 Late Charge. Lessee acknowledges late payment by Lessee to City ofrent will cause City
to incur costs not contemplated by this Lease, the exact amount of such costs being extremely
difficult and impracticable to fix. Such costs include, without limitation, processing, accounting
and late charges that may be imposed on City. If any installment of rent due from Lessee is not
received by City within ten (10) days after the date rent is due, Lessee shall pay to City an
additional sum of ten percent (10%) of the overdue rent as a late charge. This penalty shall not be
imposed for the first two payments under the Lease in order to permit Lessee to enroll the Lease in
its payment system. The parties agree this late charge represents a fair and reasonable estimate of
the costs City will incur by reason of late payment by Lessee. Acceptance of any late charge shall
not constitute a waiver of Lessee's default with respect to the overdue amount, nor prevent City
from exercising any of the other rights and remedies available to City.
3.5 Additional Consideration. As additional consideration for City's entering into this Lease,
Lessee agrees to pay to City the sum of Two Thousand Five Hundred Dollars ($2,500.00) upon
the earlier of: (a) sixty (60) days after full execution of this Lease by the City; or (b) issuance of
a certificate of occupancy. This amount shall be in addition to all other sums payable by Lessee to
City under this Lease, and shall be nonrefundable to Lessee unless the City Council fails to
approve the Lease or any requisite use permit.
3
74211405.1
ARTICLE4
Use
4.1 Permitted Uses. Lessee shall use the Premises for installation, operation, maintenance and
use of a wireless communications facility, consisting of the equipment, improvements and
facilities and the utilities, cables and wires reasonably needed to support the operation of a
comrimnications facility. The installation of the Improvements shall be subject to the reviews and
approvals set forth in Section 4.4. Lessee shall be solely responsible for all costs associated with the construction, installation, maintenance and use of the Improvements.
4.2 Access. City grants Lessee reasonable non-exclusive vehicular and foot access to the
Premises. Access shall be available to Lessee, Lessee's employees and invitees during normal
business hours, except if an emergency occurs. It is anticipated, after installation of the
Improvements is completed, that reasonable access shall occur once every two (2) weeks for the
purpose of ordinary tuning of the Lessee's equipment, appropriate maintenance of the
Improvements and the repair and replacement of communication equipment located on the
Premises. City acknowledges that off peak maintenance (non-business hours) of the site is
required approximately once per month. Lessee shall provide 24-hours' notice to City prior to off peak maintenance except in cases of emergency.
4.3 Prohibited Uses. Lessee shall not use Premises for any purpose not expressly permitted.
Lessee shall not: (a) create, cause, or permit any nuisance or waste in, on or about the Premises or
permit the Premises to be used for any unlawful; (b) do or permit anything which unreasonably
disturbs the users of the City Property or the occupants of neighboring property; provided, however, that Lessee's use of the Property pursuant to this Lease shall not be deemed an unreasonable
interference; specifically, and without limiting the above, Lessee agrees not to cause any
unreasonable odors, noise, vibration, power emissions or other item to emanate from the
Premises; and Lessee shall not store any materials or articles of any nature outside upon any
portion of the Premises.
4.4 Approval by the City and Other Agencies. Lessee, at its sole cost and expense, may install
the Improvements, subject to Lessee's obtaining all required permits, licenses and approvals from
the City of Cupertino as the permitting authority and not as lessor hereunder, and any other
governmental agencies having jurisdiction. Lessee shall maintain permits, licenses and approvals
in force through the term of this Lease, as may be extended. Should Lessee wish to subsequently change the Improvements (excluding any minor modification which would not require an
amendment to the site development permit or a building permit, and which would not materially
expand or increase the Improvements or are wholly contained in Lessee's equipment cabinets), it
shall not do so without the prior approval of City and amendment of this lease and without
obtaining all required permits, licenses and approvals from the City of Cupertino as the permitting
authority and not as lessor hereunder, and any other governmental agencies with jurisdiction. City's approval of these modifications shall not be unreasonably withheld. If a change in the
Improvements is approved, Lessee and City shall amend Exhibit "C" to reflect the change.
Should Lessee change or expand any Improvements without the prior approval of City, City may require that Lessee remove the expansion at Lessee's sole cost and expense. Lessee shall be solely
responsible for conducting any environmental review required in association with Lessee's use of
the Premises and for all costs associated, as well as all fees, charges or other expenses imposed by
4
74211405.1
the City as the regulatory agency or other regulatory agencies arising directly out of Lessee's use
of the Premises prior to the Lease commencement or at any time during the term of the Lease.
4.5 Additional Antenna(s) to be added by City. Subject to the conditions set forth in Section 4.8.8 herein, City shall have the right to install additional antennas at its sole cost and expense on
the Mono-Eucalyptus provided these antennas may only be utilized for a public purpose. The
16cation of the antenna(s) shall be approved by Lessee. The antennas shall not interfere with any activity or use by Lessee. In the event that City's antenna(s) interfere with Lessee's use, City's
antenna(s) shall be adjusted or removed to ameliorate this interference.
4.6 Compliance with Laws. Lessee shall not do or permit anything to be done in, on the
Premises, or bring or keep anything in, on the Premises which will conflict with any law, statute, ordinance or govermnental rule or regulation now in force or which may hereafter be enacted.
4.7 Condition, Use of Premises. Except for any warranties and representations expressly set
forth herein, City makes no warranty or representation concerning the condition of the Premises,
or the fitness of the Premises for the use intended by Lessee, and disclaims any personal knowledge, it being expressly understood by the parties that Lessee has personally inspected the
Premises, knows its condition, finds it fit for Lessee's intended use, accepts it as is and has
ascertained that it can be used for the limited purposes specified in Section 4.1.
4.8 Hazardous Materials.
4.8.1 Hazardous Materials on Premises. City and Lessee shall not introduce any Hazardous Materials (as defined below) to the Premises or the Property excluding any Hazardous
Materials that are components of commercially available products or are typically used, stored, or
handled in Lessee's industry or are typically stored or handled by the City, provided that Hazardous Materials are transported, obtained, handled, stored and/or disposed of in accordance
with all federal, state and local laws, ordinances, rules, regulations or policies.
4.8.2 Hazardous Materials Defined. The term "Hazardous Material(s)" shall mean any
toxic or hazardous substance, material or waste or any pollutant or contaminant or infectious or
radioactive material, including but not limited to, those substances, materials or wastes regulated
now or in the future within the definitions of "hazardous substances," "hazardous waste,"
"hazardous chemical substance or mixture," "imminently hazardous chemical substance or
mixture," "toxic substances," "hazardous air pollutant," "toxic pollutant" or "solid waste" in the
following statutes and regulations: (a) "CERCLA" or "Superfund" as amended by SARA, 42
U.S.C. Secs. 9601 et seq.; (b) RCRA, 42 U.S.C. Secs. 6901 et seq.; (c) CWA, 33 U.S.C. Secs.
1251 et seq.; (d) CAA, 42 U.S.C. Secs. 7401 et seq.; (e) TSCA, 15 U.S.C. Secs. 2601 et seq.; (f)
The Refuse Act of 1899, 33 U.S.C. Secs. 407; (g) OSHA, 29 U.S.C. Secs. 651 et seq.; (h)
Hazardous Materials Transportation Act, 49 U.S.C. Secs. 5101 et seq.; (i) USDOT Table ( 49 CPR
Sec. 172.101 App. A and amendments) or the EPA Table (40 CPR Part 302 and amendments); U)
Carpenter-Presley-Tanner Hazardous Substance Account Act, Cal. Health & Safety Code Secs.
25300 et seq.; (k) California Hazardous Waste Control Act, Cal. Health & Safety Code Secs.
25100 et seq.; (1) Porter-Cologne Act, Cal. Water Code Secs. 13000 et seq.; (m) Hazardous Waste
Disposal Land Use Law, Cal. Health & Safety Code Sec. 25220 et seq.; (n) "Proposition 65,"
Cal. Health and Safety Code Sec. 25249.5 et seq.; (o) Hazardous Substances Underground
5
74211405.l
Storage Tank Law, Cal. Health & Safety Code Sec. 25280 et seq.; (p) California Hazardous
Substance Act, Cal. Health & Safety Code Secs. 108100 et seq.; (q) Air Resources Law, Cal.
Health & Safety Code Secs. 39000 et seq.; (r) Hazardous Materials Release Response Plans and
Inventory, Cal. Health & Safety Code Secs. 25500 et seq.; (s) TPCA, Cal. Health and Safety
Code Secs. 25208 et seq.; and (t) regulations promulgated pursuant to said laws or any replacement
thereof, or as similar terms are defined in the federal, state and local laws, statutes, regulations,
orders or rules. Hazardous Materials shall also mean any and all other substances, materials and
wastes which are, or in the future become regulated under applicable local, state or federal law for the protection of health or the environment, or which are classified as hazardous or toxic
substances, materials or wastes, pollutants or contaminants, as defined, listed or regulated by any
federal, state or local law, regulation or order or by common law decision, including, without
limitation: (i) trichloroethylene, tetracholoethylene, perchloroethylene and other chlorinated
solvents; (ii) any petroleum products or fractions thereof; (iii) asbestos; (iv) polychlorinated
biphenyls; (v) flammable explosives; (vi) urea formaldehyde; and (vii) radioactive materials and
waste.
4.8.3 Hazardous Materials Indemnity. Lessee shall indemnify, defend (by counsel
reasonably acceptable to City), protect and hold Lessor harmless from and against any and all
claims, liabilities, penalties, forfeitures, losses and/or expenses, including, without limitation,
diminution in value of the Premises, damages for the loss or restriction on use of the rentable or
usable space or of any amenity of the Premises, damages arising from any adverse impact or
marketing of the Premises and sums paid in settlement of claims, response costs, cleanup costs,
site assessment costs, attorney's fees, consultant and expert fees, judgments, administrative rulings
or orders, fines, costs of death of or injury to any person or damage to any property whatsoever
(including, without limitation, groundwater, sewer systems and atmosphere), to the extent arising from, or caused or resulting, during the Lease Term, in whole or in part, directly or indirectly, by
the presence or discharge in, on, under or about the Premises by Lessee, Lessee's agents,
employees, licensees or invitees acting on Lessee's behalf or at Lessee's direction, of Hazardous
Material, or by Lessee's failure to comply with any laws pertaining to any Hazardous Materials
Law, whether knowingly or by strict liability. Lessee's indemnification obligations shall include,
without limitation, and whether foreseeable or unforeseeable, all costs of any required or necessary
Hazardous Materials management plan, investigation, repairs, cleanup or detoxification or
decontamination of the Premises, and the presence and implementation of any closure, remedial
action or other required plans for the Premises, and shall survive the expiration of or early
termination of the Term. For purposes of the indemnity, any acts or omissions of Lessee or its
employees, agents, customers, sub lessees, assignees, contractors or subcontractors of Lessee while
acting on behalf of Lessee (whether or not they are negligent, intentional, willful or unlawful) shall
be strictly attributable to Lessee. Lessee's indemnity obligations shall not include claims,
liabilities, losses, damages, costs, or other expenses arising from the negligence or misconduct of
City or City's employees, agents, sublessees, assignees, invitees, subcontractors or contractors.
4.8.4 City's Right to Perform Tests. At any time prior to the expiration of the Term, City
shall have the right to enter upon the Premises in order to conduct tests of water and soil, which
tests shall not disrupt or interfere with Lessee's operations, and to deliver to Lessee the results of
such tests to demonstrate that levels of any Hazardous Materials in excess of permissible levels has occurred as a result of Lessee's use of the Premises. Lessee shall be solely responsible for and shall
indemnify, protect, defend and hold City harmless from and against all claims, costs and liabilities
6
74211405.l
including actual attorney's fees and costs arising out of or in connection with any removal,
remediation, clean up, restoration and materials required hereunder to return the Premises and any
other property of whatever nature to their condition existing prior to the appearance of the
Hazardous Materials to the extent such presence arises out of Lessee's use of the Premises. The
testing shall be at Lessee's expense if City has a reasonable basis for suspecting and confirms the
presence of Hazardous Materials in the soil or surface or groundwater in on, under, or about the.·
Premises, which has been caused by or resulted from the activities of Lessee, its agents,
employees, contractors or invitees acting on Lessee's behalf or at Lessee's direction.
4.8.5 Survival. This entire Section 4.8 of this Lease shall survive termination of the·
Lease, as to any activities during the term of this Lease.
4.8.6 Termination of Lease. City shall have the right to terminate the Lease in City's
sole and absolute discretion in the everit that: (i) any use of the Premises by Lessee involves the·
generation or storage, use, treatment, disposal or release of Hazardous Material in a manner or for
a purpose prohibited or regulated by any govermnental agency, authority or Hazardous Materials
Laws; (ii) Lessee has been required to take remedial action in connection with Hazardous Material
contaminating the Premises, if the contamination resulted from Lessee's action or use of the
Premises; or (iii) Lessee is subject to an enforcement order issued by any governmental authority
in connection with the release, use, disposal or storage of a Hazardous Material on the Premises.
Lessee shall have thirty (3 0) days after receipt of notice from City to cure or commence cure, prior
to City's ability to exercise its rights under this Section.
4.8.7 Covenant of Non-Interference. Lessee shall be responsible for inspecting City Property and finding adequate space at the site without moving or relocating any of City's facilities
or equipment, or any other facility, or utility located at the City Property at the time Lessee's
facilities are installed. Lessee's equipment shall not cause incurable interference with any other
existing facility or antenna on the City Property as of the date of this Agreement. In the event that
Lessee's equipment does cause incurable interference with other facilities, Lessee shall be·
required to install, at its own expense, frequency filters or take other reasonable measures to
correct the problem. Lessee shall be required to coordinate with other existing utilities located at
the City Property, to ensure that Lessee's equipment does not interfere with the existing frequency
utilized by existing utilities. Lessor shall not permit the installation or subsequent equipment on
the City Property by Lessor or a third party which interferes with Lessee's operations.
4.8.8 Co-location. Lessee acknowledges that it has given City prior approval that it will
lease one (1) position on Lessee's antenna structure on the Premises to one (1) other
communications provider (the "First Other User"), subject to the First Other User's compliance
with the conditions below. Lessee further acknowledges and approves that City shall be entitled to
require Lessee to lease additional positions on Lessee's antenna structure on the Premises, subject
to the conditions below. The City may also require that the antenna structure be extendable to a
height of up to 80 feet, following the grant of a height exception. If Lessor wishes to require
Lessee to lease space on Lessee's antenna structure on the Premises to allow a second other
communications provider (the "Second Other User") to attach its communications equipment on
the antenna structure, Lessor shall submit a written request to Lessee listing the proposed
equipment to be placed on the antenna structure. The terms "First Other User" and "Second Other
User" are collectively referred to hereinafter as the "Other User." Lessee shall review such request
7
74211405.l
and determine the following, including without limitation (1) whether the Other User's proposed
installation interferes or conflicts with Lessee's or other users' use of the antenna structure or the
Premises; (2) whether the antenna structure can withstand the structural load of Other User's proposed equipment; or (3) if Other User's proposed equipment jeopardizes Lessee's permits or any approval for use of the Premises. If testing or analysis, including without limitation a
structural analysis, intermodulation study, construction or zoning drawings, or any environmental
testing is required, Other User shall be responsible for the costs of such testing or analysis. Upon
approval, Lessee and Other User shall enter into a separate agreement permitting Other User to
attach its approved equipment to the antenna structure. Lessee shall have no liability of any nature
to Lessor for failure to allow Other User(s) to use Lessee' antenna structure. Lessee shall receive
100% of the rental for any Other Users' use of Lessee's antenna structure, and City shall receive
100% of the rental, negotiated by City and such Other User for the portion of the Other User's
lease of any City Property. All operations by Lessee shall be in compliance with all Federal
Communications Commission ("FCC") requirements. Should City add new facilities on the City
Property in the future, Lessee will not cause measurable electronic or physical interference with
City owned and operated equipment that is related to public health and safety and is located on the
City Property. Lessee shall reasonably cooperate with current and future users of the City Property. Lessor will not grant a lease to any party for use of the City Property if the new use
would interfere with Lessee's operation of its communications facility. Any future lease of the
Site which permits installation of communication equipment shall be conditioned upon not
interfering with Lessee's operation of the Premises.
4.8.9 Electromagnetic Emissions. Lessee's operations on the Premises shall comply
with all applicable federal laws and regulations regarding electromagnetic emissions. After its
Improvements are constructed on the Premises, Lessee shall conduct all necessary tests to ensure
that its facilities are in compliance with those laws and regulations. The tests shall be conducted by a licensed engineer, and the results shall be provided to the City.
ARTICLES
Maintenance, Repairs and Alterations
5 .1 General. Lessee shall keep in good order, condition and repair the Premises, and the
Improvements placed on the Premises. Lessee shall keep the Premises clean and free of debris.
5.2 Surrender. Within ninety (90) days after the last day of the Term, or any Option Tenn if so
extended, Lessee shall surrender the Premises to City in the same condition as when received,
clean and free of debris, reasonable wear and tear. Lessee shall also remove all Improvements and
cables and wires located above ground or below ground that Lessee placed upon the Premises, and
repair any damage to the Premises by the installation, maintenance or removal of Lessee's
Improvements and any related cables, wires or other equipment, and shall restore the Premises to
the same conditions as when Lessee received the Premises from City, reasonable wear and tear.
5.3 City's Rights. If Lessee is in default, subject to City mailing or delivering notice in
accordance with Section 20.6 herein and the expiration of any applicable cure periods, City may (but shall not be required to) enter upon the Premises, (except in the case of an emergency, in
which case no notice shall be required), to perform obligations on Lessee's behalf and put the
Premises and/or Improvements in good order, condition and repair, and the cost, together with
8
74211405.1
interest at the maximum rate then allowable by law, shall become due and payable as additional
rent to City with Lessee's next rental installment, provided, however, in the case of a non-
emergency, City shall notify Lessee of City's intention to perfonn Lessee's obligations ten (10)
days prior to performing any work on Lessee's behalf. If no rental installment is due to City, these
costs shall become due and payable within thirty (30) days from the date of City's invoice
accompanied by supporting documentation for such costs.
5.4 City Repair Obligations; City shall have no obligation to repair and maintain the Premises
nor the hnprovements and facilities. Lessee expressly waives the benefit of any statute now or
hereinafter in effect which would afford Lessee the right to make repairs at City's expense or to terminate this Lease because of City's failure to keep Premises in good order, condition and
repair.
5.5 Security Measures. City shall have the right to require a reasonable security system,
device, operation or plan be installed and implemented to protect the Premises or the
Improvements. Should City, in its sole discretion, require Lessee to install a security system,
Lessee agrees to bear the sole cost of any security system, device, operation or plan and the
installation and implementation. Lessee shall obtain City's prior approval before installing or
implementing any security system, device, operation or plan. Any security and fencing depicted in
the exhibits attached hereto have been approved by City.
5.6 Improvements.
5.6.1 Lessee shall pay, when due, all claims for labor or materials furnished or alleged to
have been furnished to or for Lessee at or for use on the Premises, which claims are or may be
secured by any mechanic or material lien against the Premises or any interest therein. Lessee shall
give City not less than ten (10) days' notice prior to the commencement of any work on the
Premises, and City shall have the right to post notices of non-responsibility in or on the Premises.
If Lessee, in good faith, contests the validity of any lien, claim or demand, then Lessee shall, at its
sole expense, defend itself and City against it and shall pay any adverse judgment that may be
rendered before enforcement against the City. If City shall require, Lessee shall furnish to City a surety bond satisfactory to City in an amount equal to the contested lien, claim indemnifying City
against liability for and holding the Premises free from the lien or claim. In addition, City may
require Lessee to pay City's attorneys' fees and costs in participating in the action if City decides
to participate.
5.6.2 Lessor shall submit to the City for the City's approval the plans prior to submitting
the Lease to the City for the City's approval. Before construction of any subsequent
Improvements are commenced on the Premises, and before any building materials have been
delivered to the Premises by Lessee or agents, Lessee shall comply with the following conditions
or procure City's written waiver of the conditions specified:
5 .6.2.1 Construction Schedule. A construction schedule approved by Lessee
and the City setting forth in detail a description of the Improvements and all steps for construction
of the Improvements, and Lessee's best estimate of the date upon which each step shall be
substantially completed is attached and incorporated herein as Exhibit "D". A construction
schedule shall not be required for like kind replacement following after initial installation.
9
74211405.1
5.6.2.2 Protection of Adjacent Property, Indemnity of the City. Lessee shall
protect the City Property and adjacent property against damage resulting from the performance of
work undertaken by Lessee or Lessee's agents, employees, contractors excluding any damage
caused by gross negligence or the willful act of City, and shall indemnify the City against all liens
or liability arising out of the performance of the work or the furnishing of labor, services,
materials, supplies, equipment or power on behalf of Lessee.
5.6.2.3 Insurance. In addition to the insurance coverage otherwise required
under this Lease, Lessee shall maintain workers' compensation insurance covering all persons
employed in connection with the construction of any Improvements, repair or maintenance
activities with respect to whom death or injury claims could be asserted against the City, Lessee or
the Premises. City may require any third party(ies) performing work at the Premises to maintain
workers' compensation insurance as contractor's sole cost and expense at all times when any work
is in process and shall otherwise confonn to the requirements of this Lease for insurarice.
5.6.2.4 Final Inspection. Lessee shall not provide service to its customers from
the Improvements in any way without receiving a final inspection of the Improvements from the
City.
5.6.2.5 Notice of Changes in Plans. Upon completion of any Improvement,
Lessee shall give City notice of all changes in the plans and specifications made during the
course of the work and at the same time deliver to City "as built" drawings accurately reflecting all
changes, provided that no change that substantially alters the final plans last approved by the City
shall be made without the City's prior written approval.
5.7 City Access. The City or its agents, may enter into the Project at all reasonable times
during the term of this Lease Agreement for the purpose of determining whether or not Lessee is
complying with the terms and conditions or for any other purpose incidental to rights of the City.
City shall provide Lessee with at least two (2) business days' prior notice and shall have the ability
but not the obligation to accompany City during any such inspection.
5.8 Lessee Access. Lessee may enter into or upon the Premises during normal business
hours, Monday thru Friday from 8 a.m. to 5 p.m. upon reasonable notice to the City. In the event
of an emergency, Lessee's access shall be 24/7. Lessee acknowledges that other lessees and
licensees also have rights to access the Premises, and that if multiple lessees or licensees request
simultaneous access, the City may have to delay Lessee's access to the Premises to accommodate
all parties. City acknowledges that off peak maintenance (non-business hours) is required
approximately once per month. Lessee shall provide 24-hours' notice to City prior to off peak
maintenance except in cases of emergency.
5.9 Lessee Access During Security Alert. During times of high security alert by the Homeland
Security Advisory System, Lessee must obtain City's consent to access the Project.
ARTICLE6
Indemnity and Insurance
6.1 Indemnity. This Lease is made upon the express condition that Lessee shall indemnify and
hold harmless the City and its officers, agents and employees against any suits, claims or actions to
10
74211405.1
the extent arising out of Lessee's use of the Premises or from any act permitted, or any omission to
act, in or about the Premises or the City Property by Lessee or its agents, employees, contractors or
invitees, including, but not limited to, any injury or injuries to, or death or deaths of, persons or
property that may occur, or that may be alleged to have occurred from any cause or causes
whatsoever, while in, upon, about or in any way connected with the Premises during the tem1 of
this Lease, or during any holdover tenancy thereof (except where caused solely by the active
negligence or willful misconduct of City, its employees or agents). Lessee agrees to defend any
actions, suits or claims and pay all reasonable charges of attorneys and all other costs and expenses
arising therefrom; and, if any judgment be rendered against the City or any of the other individuals
enumerated above in any action, except to the extent the judgment arises from the negligence or
willful misconduct of the City, its employees or agents, Lessee shall, at its sole cost and expense,
satisfy and discharge same.
6.2 Waiver of Claims. Lessee waives any claims against City for injury to Lessee's business or
any loss of income, for damage to Lessee's property, or for injury or death of any person in or
about the Premises or the City Property, from any cause whatsoever, except to the extent caused by
City's negligence or willful misconduct.
6.3 Insurance. During the term of this Lease, Lessee shall maintain in full force and affect the
following insurance policies:
6.3.1 Commercial general liability policy (bodily injury and property damage); and
6.3.2 Comprehensive automobile liability insurance policy.
These policies shall be maintained with respect to employees and vehicles using the Property with
coverage amounts and including the required endorsements, certificates of insurance and coverage
verifications as defined in Exhibit "E" attached and incorporated by this reference.
ARTICLE7
Damage, Destruction and Termination
7.1 Nontermination and Nonabatement. Except as provided herein, no destruction or damage
to the Premises by fire, windstorm or other casualty, whether insured or uninsured, shall entitle
Lessee to terminate this Lease, unless Premises are rendered unusable as a cell site.
7.2 Force Majeure. Prevention, delay or stoppage due to strikes, lockouts, labor disputes, acts
of God, inability to obtain labor, materials or reasonable substitutes, governmental restrictions,
governmental regulation, governmental controls, judicial orders, enemy, or hostile governmental
actions, civil commotion, fire or other casualty, and other causes beyond the reasonable control of
Lessee, shall excuse the performance by Lessee for a period equal to the prevention, delay or
stoppage, except the obligations imposed with regard to rent to be paid by Lessee pursuant to this
Lease. In the event any work performed by Lessee or Lessee's contractor's results in a strike,
lockout, and/or labor dispute, the strike, lockout, and/or labor dispute shall not excuse the
performance by Lessee of the provisions of this Lease.
11
74211405.l
7.3 Waiver. City and Lessee waive the provisions of any statutes which relate to termination
of leases when leased property is destroyed and agree that such event shall be governed by the
terms of this Lease.
ARTICLE 8
Taxes
8.1 Personal Property. Lessee shall pay prior to delinquency all taxes, license fees and public
charges assessed or levied against Lessee or Lessee's estate in this Lease or Lessee's Improvements, trade fixtures, furnishings, equipment and other personal property.
8.2 Real Property. Lessee shall pay Lessee's share of any increased real property taxes (as
defined in Section 8.3 below) which become due and payable by Lessee. Should these taxes
become due and payable by the City then on or before the later of ten (10) days prior to the
delinquency, or three (3)days after the date on which Lessee receives a copy of the tax bill and
notice of City's determination including documentation reasonably supporting of the determination hereunder that the tax has increased due to this Lease and installation of Lessee's
antenna. Lessee's liability to pay real property taxes shall be prorated on the basis of a three
hundred sixty-five (365) day year to account for any fraction or portion of a tax year included in the Lease term at the commencement or expiration or earlier termination of this Lease. Lessee is
not responsible for taxes related to rental income to City under this Lease. Lessee specifically
acknowledges it is familiar with Section 107.6 of the California Revenue and Taxation Code,
realizes that a possessory interest subject to property taxes may be created, agrees to pay any tax,
and waives any rights Lessee may have under Revenue and Taxation Code 107.6.
8.3 Definition. The term "real property taxes" as used herein shall mean:
8.3.1 All increased taxes, assessments, levies and other charges, general and special,
foreseen and unforeseen, now or hereafter imposed by any governmental or quasi-governmental
authority or special district having the direct or indirect power to tax or levy assessments, which are levied or assessed against or with respect to (i) value, occupancy, use or possession of the
Improvements, (ii) any improvements, fixtures, equipment and other real or personal property of
Lessee that are an integral part of the Premises, (iii) use of the Improvements public utilities or
energy within the Premises;
8.3.2 All increased charges, levies or fees imposed by reason of environmental
regulation or other governmental control of the premises and/or the Improvements, imposed due to
the Improvements installed by Lessee;
8.3.3 Intentionally omitted; and,
8.3.4 All costs and fees (including reasonable attorneys' fees) incurred by City in
contesting any increase in real property taxes at Lessee's written request and in negotiating with
public authorities as to any real property taxes affecting the Premises as a result of this Lease. If
at any time during the Term, the taxation or assessment of the Improvements prevailing as of
the commencement of this Lease shall be altered, then any tax or charge, however designated,
shall be included within the meaning of the term "real property taxes." If any real property taxes
are based upon the hnprovements, then only that part of such tax that is fairly allocable to the
12
74211405.l
Improvements, as determined by City, on the basis of the assessor's worksheets or other available
information, shall be included within the meaning of the term "real property taxes."
ARTICLE9
Utilities
Lessee shall pay for all water, gas, heat, light, power, telephone and other utilities and
services supplied to the Premises, together with any taxes.
ARTICLE 10
Signs
Lessee shall not place any signs upon the Premises without prior written consent of City
except as required by law.
ARTICLE 11
Assignment and Subletting
11.1 City's Consent Required. Lessee shall not voluntarily or by operation of law assign,
transfer, mortgage, sublet or otherwise transfer or encumber all or any part of Lessee's interest in
this Lease or in the Premises, without City's prior written consent, which consent shall not be
unreasonably withheld. City shall respond to Lessee's request for consent in a timely manner and
any attempted assignment, transfer, mortgage, encumbrance or subletting without consent shall
be void and shall constitute a breach of this Lease.
11.2 Net Worth Requirements. Notwithstanding the foregoing, Lessee may assign or sublet the
Premises, or any portion thereof, without the City's consent, to any entity which controls, is
controlled by, or is under the common control with Lessee, or to any entity resulting from any
merger or cons.olidation with Lessee, or to any partner of Lessee or to apy partnership in which
Lessee is a general partner, or to any person or entity which acquires all of the assets of Lessee on
the City Property, or to any entity which obtains a security interest in a substantial portion of
Lessee's assets Any entity listed in this paragraph or its general partner, affiliate, or parent
company shall have a net worth of not less than Ten Million Dollars ($10,000,000) as evidenced
by publicly available financial or investor related statements or documentation, or by a net worth
letter from an officer of a publicly-traded affiliate of Lessee.
11.3 No Release of Lessee. No subletting or assignment as approved by City shall release
Lessee of Lessee's obligation or alter the primary liability of Lessee to pay the rent and to perform
all other obligations to be performed by Lessee hereunder. The acceptance of rent by City from
any other person shall not be deemed to be a waiver by City of any provision hereof. Consent to
one assignment or subletting shall not be deemed consent to any subsequent assignment or
subletting. In the event of default by any assignee of Lessee or any successor of Lessee in the
performance of any of the terms hereof, City may proceed directly against Lessee without the
necessity of exhausting remedies against said assignee.
11.4 Right of First Refusal. If Lessor elects, during the Term to grant to a third party by
easement or other legal instrument an interest in and to that portion of the Property occupied by
Lessee, or a larger portion thereof, for the purpose of operating and maintaining communications
13
74211405.1
facilities or the management thereof, with or without an assignment of this Agreement to such
third party, Lessee shall have the right of first refusal to meet any bona fide offer of transfer on the
same terms and conditions of such offer. If Lessee fails to meet such bona fide offer within thirty
(30) days after written notice thereof from Lessor, Lessor may grant the easement or interest in the
Property or portion thereof to such third person in accordance with the terms and conditions of
such third party offer.
ARTICLE 12
Defaults; Remedies
12.1 Defaults. The occurrence of any one or more of the following events shall constitute a
material default or breach of this Lease by Lessee:
12.1.1 The abandonment of the Premises by Lessee as defined by Civil Code §1951.3.
12.1.2 The failure by Lessee to make any payment of rent or any other payment required
to be made by Lessee hereunder, as and when due, where the failure shall continue for a period of
ten (10) business days after receipt of written notice from City to Lessee.
12.1.3 The failure by Lessee to observe or perform any of the covenants, conditions or
provisions of this Lease in any material respect to be observed or perfonned by Lessee, other than
those described in Section 12.l(B) above, where the failure shall continue for a period of thirty
(30) days after receipt of written notice from City to Lessee; provided, however, that ifthe nature
of Lessee's default is that more than thirty (30) days are reasonably required for its cure, then
Lessee shall not be deemed to be in default, if Lessee commenced cure within the thirty (30) day
period and thereafter diligently prosecutes the cure to completion.
12.1.4 The making by Lessee of any general arrangement or assignment for the benefit of
creditors; Lessee's becoming a "debtor" as defined in 11 U.S.C. §1.01 or any successor statute
thereto (unless, in the case of a petition filed against Lessee, it is dismissed within sixty (60)
days); the appointment of a banlauptcy trustee or receiver to take possession of all or substantially
all of Lessee's assets located at or on the Premises or of Lessee's interest in this Lease where
possession is not restored to Lessee within thirty (30) days; or the attachment, execution or other
judicial seizure of all or substantially all of Lessee's assets located at the Premises or of Lessee's
interest in this Lease, where seizure is not discharged within thirty (30) days.
12.2 Remedies. In the event of any material default or breach by Lessee, City may at any time
thereafter, following any notice required by statute, and without limiting City in the exercise of
any right or remedy which City may have by reason of default or breach:
12.2.1 Terminate Lessee's right to possession of the Premises by any lawful means, in
which case this Lease shall terminate and Lessee shall immediately surrender possession of the
Premises and Improvements to City. In that event, City shall be entitled to recover from Lessee all
damages incurred by City by reason of Lessee's default including, but not limited to, the cost of
recovering possession of the Premises, expenses of reletting, including if necessary, removal of
Improvements and restoration of the Premises, reasonable attorneys' fees, the worth at the time
of the award of the unpaid rent that had been earned at the time of termination of this Lease and the
worth at the time of award of the amount by which the unpaid rent for the balance of the term after
14
74211405.1
the time of such award exceeds the amount of rental loss for the same period that Lessee proves
could be reasonably avoided.
12.2.2 Maintain Lessee's right to possession, in which case this Lease shall continue in
effect whether or not Lessee shall have abandoned the Premises. In that event, City shall be
entitled to enforce all of City's rights and remedies under this Lease, including the right to
recover rent as it becomes due.
12.2.3 Pursue any other remedy now or hereafter available to City under the laws or
judicial decisions of the State of California.
12.3 No Relief from Forfeiture After Default. Lessee waives all rights ofredemption or relief
from forfeiture under California Code of Civil Procedure § § 117 4 and 1179, and any other
present or future law, in the event Lessee is evicted or City otherwise lawfully takes possession of
the Premises by reason of any default or breach of this Lease by Lessee.
ARTICLE 13
Termination of Lease
13 .1 Termination by Lessee. Except as provided otherwise herein or by applicable law,
Lessee may terminate this Lease for cause upon the giving of not less than thirty (3 0) days
written notice to City if any of the following occur:
13 .1.1 The failure by City to observe or perform any of the covenants, conditions or
provisions of this Lease in any material respect to be observed or performed by City, where the
failure shall continue for a period of thirty (30) days after written notice from Lessee to City;
provided, however, that ifthe nature of the City's default is such that more than thirty (30) days are
reasonably required for its cure, then City shall not be deemed to be in default, if City commenced
to cure.within a thirty (30) day period and thereafter diligently prosecutes such cure to completion;
13 .1.2 Lessee fails to obtain or loses any permits necessary for operation of the Premises as a cellular telephone communications facility.
13 .1.3 Lessee determines that the site is inappropriate for technological reasons, beyond
its control; including but not limited to signal interference.
13.2 Termination by City. Except as otherwise provided or by applicable law, City may
terminate this Lease for cause upon giving thirty (30) days written notice if any of the following
occur:
13 .2.1 The City Council of the City of Cupertino determines through credible scientific
evidence collected with regard to the cellular telecommunications facility operated at the
. Premises, that the facility is a threat to public health or safety. The City shall provide at least 30-days' prior written notice to Lessee of the intent to revoke the permit and Lessee shall have a full and fair opportunity to provide contradictory scientific data prior to City Council action; or
13.2.2 Lessee loses or fails to satisfy any condition of any permit required by City
necessary for operation of the Premises as a cellular telephone communication facility.
15
74211405.l
13 .3 Condemnation of Leased Premises. Should all or part of the Premises be taken by any
public or quasi-public agency or entity under the power of eminent domain under the term of this
lease:
13 .3 .1 Either City or Lessee may terminate this Lease by giving the other thirty (3 0) days'
prior written notice of termination; and
13.3.2 Any damages and compensation awarded or paid because of the taking shall belong
to the City, except for amounts paid Lessee for relocation expenses or for damage to property
owned by Lessee and the value of the unexpired term of this Lease.
ARTICLE 14
City's Liability
The term "City" as used herein, shall mean the City only while the City is the owner of the
fee title of the Premises. In the event of any transfer of title or interest, the City (and in case of any
subsequent transfer, then the grantor) shall, after the date of such transfer, be relieved from all
liability with respect to its obligations hereunder occurring after the transfer date, provided that
any funds in the hands of City at the time of transfer, in which Lessee has an interest, shall be
delivered to the City's grantee.
ARTICLE 15
Interest on Past-Due Obligations
Except as expressly provided, any amount due City when not paid when due shall bear
interest at the lesser of ten percent ( 10%) per year or the maximum rate allowable by law from the
date due.
ARTICLE 16
Holding Over
If Lessee remains in possession of the Premises or any part after the expiration of the term
or option term the occupancy shall be a tenancy from month to month with all the obligations of
this Lease applicable to Lessee and at a monthly rental obligation of 150% of the Base Rent in
effect at the time of expiration.
ARTICLE 17
City's Access
City and City's agents shall have the right to enter the Premises for the purpose of showing
to prospective purchasers, lenders or lessees, and making alterations, repairs, improvements or
additions to the Premises as City may deem necessary. City shall provide Lessee with at least five
(5) business days' prior written notice and Lessee shall have the ability but not the obligation to
accompany City during any such inspection.
16
74211405.l
ARTICLE 18
Quiet Possession
Upon Lessee's paying rent for the Premises and observing and perfonning all of the
covenants, conditions and provisions on Lessee's part to be observed and performed, Lessee shall
have quiet possession of the Premises for the entire term subject to all of the provisions of this
Lease.
ARTICLE 19
Easements
City reserves to itself, the right, from time to time, to grant such easements, rights and
dedications outside of the Premises and subject to the terms of this Lease, that City deems
necessary or desirable, and to cause the recordation of parcel maps and restrictions, so long as the
easements, rights, dedications, maps and restrictions do not materially interfere with the use of the
Premises by Lessee. Lessee shall sign any of the aforementioned documents upon request of City
and failure to do so shall constitute a material breach of this Lease.
ARTICLE20
General Provisions
20.1 Severability. The invalidity of any provision of this Lease as determined by a court of
competent jurisdiction shall in no way affect the validity of any other provision.
20.2 Time of Essence. Time is of the essence under this Lease.
20.3 Additional Rent. Any monetary obligations of Lessee to City under the terms of this
Lease shall be deemed to be rent and all references herein to "rent" shall be deemed to include the
Base Rent and all other sums paid or payable.by Lessee to City.
20.4 Entire Agreement, Modification. This Lease contains all agreements of the parties with
respect to any matter mentioned herein. No prior agreement or understanding shall be effective.
This Lease may be modified in writing only.
20.5 No Warranty. Except as otherwise stated in this Lease, Lessee hereby acknowledges that
neither the City nor any employees or agents of the City has made any oral or written warranties or
representations to Lessee relative to the condition or use by Lessee of the Premises and Lessee
acknowledges that Lessee assumes all responsibility regarding the Occupational Safety and Health
Act, the legal use and adaptability of the Premises and compliance with all applicable laws and
regulations in effect during the term of this Lease.
20.6 Notices. Any notice required or permitted to be given, shall be in writing and may be
given by personal delivery or by first class mail, and if given personally or by mail, shall be
deemed sufficiently given if addressed to Lessee or to City at the address noted below:
17
74211405.l
Lessee:
GTE Mobilnet of California Limited Partnership,
d/b/a Verizon Wireless
180 Washington Valley Road
Bedminster, New Jersey 07921
Attention: Network Real Estate
Re: DeAnza Stevens Creek
City:
David Brandt
City Manager, City of Cupertino
10300 Torre Avenue
Cupertino, CA 95014-3202
With Copy to:
Randolph Stevenson Hom, City
Attorney 20410 Town Center Lane,
Suite 210 Cupertino, CA
95014-3255 Each notice shall specify the provision pursuant to which it is given. Either party may specify a
different address or contact person. A copy of all notices required or pennitted to be given to City
hereunder shall be concurrently transmitted to the party at the address as City designated by notice
to Lessee. Notice given under this section shall be deemed in compliance with applicable statutory
notice requirements, including Code of Civil Procedure § 1162.
20.7 Waivers. No waiver by City or Lessee of any provision shall be deemed a waiver of any
other provision or of any subsequent breach by City or Lessee of the same or any other provision.
City's or Lessee's approval of any act shall not be deemed to render unnecessary obtaining of their
consent of any subsequent act. The acceptance of rent by City shall not be a waiver of any
preceding breach by Lessee of a provision, other than the failure of Lessee to pay the particular
rent so accepted, regardless of City's knowledge of the breach at the time of acceptance of rent.
20.8 Cumulative Remedies. No remedy or election under this Lease shall be deemed exclusive
but shall, wherever possible, be cumulative with all other remedies at law or in equity.
20.9 Choice of Law. This Lease shall be governed by the laws of the State of California. The
language of all parts of this Lease shall be construed with its fair meaning and not strictly for or
against the City or Lessee.
20.10 Condition to Effectiveness of Lease. The approval of the City Council of City constitutes
an express condition precedent to the effectiveness of this Lease.
20.11 Attorneys' Fees. If either party brings an action to enforce the terms or declare rights
hereunder, the prevailing party in any such action, shall be entitled to its reasonable attorneys'
fees and court costs to be paid by the other party.
18
74211405.l
20.12 Brokers. Each party represents that it is has not had dealings with any real estate broker or
finder, with respect to this lease in any manner. Each Party shall hold harmless the other party
from all damages resulting from any claims that may be asserted against the other party by any
broker, finder, or other person with whom the Indemnifying Party has or purportedly has dealt.
20.13 Authority. Each individual executing this Lease on behalf of Lessee and City represents
and warrants that he or she is duly authorized to execute and deliver this Lease on behalf of said
party.
20.14 Non-Liability of Officials and Employees of the City. No official or employee of City
shall be personally liable for any default or liability under this agreement.
20.15 Non-Discrimination. Lessee covenants it shall not discriminate based upon race, color,
creed, religion, sex, marital status, age, handicap, national origin or ancestry in any activity under
this lease.
20.16 Independent Contractor. It is agreed that Lessee shall act and be an independent contractor
and not an agent nor employee of City.
20.17 Conflict of Interest. Lessee shall at all times avoid conflict of interest or appearance of
conflict of interest in performance of this agreement.
20.18 Memorandum of Lease. Following execution of this Lease, either party, at its sole
expense shall be entitled to record a Memorandum of Lease in the official records of Santa Clara
County. Upon termination or expiration of this Lease, Lessee shall execute and record a quitclaim
deed.
20.19 Estoppel Certificate. Lessee shall, from time to time, upon at least thirty (30) days receipt
of prior written notice from City, execute, acknowledge and deliver to City a statement in writing:
(a) certifying this Lease is umnodified and in full force and effect, or, if modified, stating the
nature of the modification and certifying that the Lease, as modified, is in full force and effect, and
the date to which the rental and other charges, if any, have been paid; and, (b) acknowledging that
there are not to Lessee's knowledge, any defaults, or stating if any defaults are claimed, any
statement may be relied upon by any prospective purchaser or encumbrancer of the City Property.
[Signature page follows]
19
74211405.1
CITY OF CUPERTINO, CALIFORNIA
APPROVED AS TO FORM:
GTE Mobilnet of California Limited Partnership,
d/b/a Verizon Wireless
By: Cellco Partnership
Its: General Partner
"Lessee"
20
74211405.1
David Brandt
City Manager
;/
'
74211405.l
Exhibit A
Property
[See attached]
21
Exhibit A
Property
Real property in the City of Cupertino1 County of Santa Clara, State of Calrfomia1 described as
follows:
PARCEL ONE:
LOT 7, AS SHOWN ON THAT CERTAIN MAP ENTITLED TRACT NO. 3743 CUPERTINO TOWN
CENTER, WHICH MAP WAS FILED FOR RECORD IN THE OFFICE Of THE RECORDER Of THE
COUNTY Of SANTA CLARA, STATE OF CALIFORNIA ON OCTOBER 161 1964, IN BOOK 186 Of
!VlAPS PAGE(S) 36 AND 37.
PARCEL nvo:
PARCELS A, B1 C & D, AS SHOWN ON THAT CERTAIN PARCEL MAP ENTITLED, "PARCEL MAP,
BEING ALL Of LOT 4, TRACT NO. 3743, CITY OF CUPERTINO'\ WHICH PARCEL MAP WAS FILED
FOR RECORD IN THE OFFICE Of THE RECORDER OF THE COUNTY Of SANTA CLARA, STATE OF
CALIFORNIA ON MARCH 7, 1974 IN BOOK 337 OF MAPS, AT PAGE 11.
APN: 369-31-033
74211405.l
Exhibit B
Premises
[See attached]
22
I
I
I I I I I I I
I
I
I
I
I I I I I I
I I
I
I I I I I
I I !
I
I I
I
~ I J;
<.L ~.,.,.>-0.10'
EXISTING BUILDING[ I TOPz2SS./
-:J
APN; 369-31-033
IJll I I I~ 111
111
111'
1\1
/II
/111
/II'
111/
1/15
111:
2
/II
ill Ill
1111
111
1
1111
1111
1111
111/ Ill
111:
.l:!:.11??~·
-----------k!l~~· _J 7.80'
S~ PROJECT AREA ENi'.AR.GfMENT ___zrrrr C-2
I I
I I I
I I I
I I
I I I
I
I I
I I I
I I I
I I
I
I I I
I
I I
I I I I I
I I
I
I
I
I I
I I I
¥~
SCALE 1" = 60' OVERALL SITE PLAN
DATE Of SURVEY: 0:3-28-14
SURVMD BY OR UNDER DIRECTION Of: KENNETH D. GEIL. R.C.E.t'4a03
CONTRACTOR IS RESPONSIBLE TO VERIFY L.£ASE AREA PRIOR TO CONSTRUCTION.
BOUNDARY SHOWN IS BASED ON MONUMENTATION FOUND AND RECORD INFORMATION. lHIS IS NOT A BOUNDARY SUR\£Y. THIS IS A SPEOAUZED TOPOGRAPHIC MAP WITH PROPERTY LINES ANO EASEMENTS BEING A GRAPHIC DEPICTION BASED ON INFORMATION V~
LOCATED IN THE COUNTY Of SANTA Ct.ARA. STATE OF CALIFORNIA
BEARINGS SHOWN ARE BASED UPON MONUMENTS FOUND AHO RECORD lNfDIWATlON. THIS IS NOT A BOUNDARY SURVEY.
ELEVATIONS SHOWN ~ THIS PLAN ARE BASED UPON U.S.G.S. N..A.V.D. 88 DAT\IM. ABOVE Mu.N SEA LEVEL UNLESS OTllERWISE NOTED.
N.a.v.o. 1929 CORRECTION: SUBTRACT 2.74' FROM £l.EVAT10MS SHOWN.
COtlTDUR INTERVAi.: N/A 10 TI-IE ORIGINAL SlTE AND CAFl.RIER FOR \'MICH 11-IEY ARE PREPARED. REUSE. REPRODUCllON OR PU9UCATION BY ANY METHOD, IN \'MOLE OR !N PART, IS PROHIBl1ED EXCEPT BY v.RITIEN PERMISSION FROM GEIL ENGINEERING TITI.E TO THESE PLANS AND/OR SPECIFICATIONS SHAU. REMAlN 'MTH GEIL ENGINEERING WITI-IOUT PREJUDICE AND VISUAL
~1~ PROJECT :'ii Pl "'-'.AREA
ASSESSOR'S PARCEL NUMBER: 369-31-033
OWNER(S~
SITE CONTACT:
CITY OF CUPERTINO 10800 TORRE AVENUE CUPERTINO, CA 9501.4.
MARK CASEY 916-508-79-f!i
G!!UEnglneerlng Engineering•SUrv=)'ing•Plcinning 1225 High Street Auburn, C111lfoml11 95603-5015 Phone: (530) 885-0426 • Fox: (530) 823-13D9
Verf:r:on Wlrelen PCS Equipment A.S.A.C. survey Ferm
Project Ncrne: DeAn:r:ci Stewn" Creek
Project Site location: 108DO Torre Avenue Cupertino, CA 95014 ScintciClciroCounty
Dcite of Observation: 03-28-14
CONTACT WITH THEM SHAU. CONSlllUTE PRIMA FACIE EVIDENCE Of ACCEPTANCE OF THESE RESlRICTIONS.
Equipment/Procedure Und to Obtain Cocirdinote..:: Trimble G!tg-=XT poll g(Qsrt""ed w!lh Pgthfindfl! Offiqr wttworrt
Tw11 cif Antenno Mount: Propoud Mono-Eucolwtu!!I Tower-
NM} B3 Csm!Wurt= Latitude: N37"19'08.92" Longltude:W 122· 01' 40.59"
NAO n rgpp11naj!lll Latitude: N 37" 19' 09.13" Langitude:W 122· 01' 38.73"
ELEVA110N of Gl'ound at a.,..., of Structure (NAWBB) 225' AMSL
CERTIFICATION: I, the unden;tgned, do hereby certify elevation Usted cibove i& bci5"d an afield survey done undermysuper,riston and thotth11 cici;urocyof thci5" elevations meet or exi;:11ed 1-A Stondords as defined In the FAA ASAC lnf111TT111tie>nSheet91:003,ondthcittheyciretrueondcicourotetothebntof my knowledge and belief.
Kenneth O. Gell Collfcim!ci RCE 14803
LEASE AREA DESCRIPTION
CLf'E:RrlNO. CA
ALL THAT CERTAIN LEASE AREA BEING A PORTION OF TMAT CERTAIN LDT 7 AS IS SHOWN ON THAT CERTAIN TRACT t.IAP RECORDED AT BOOIC 1B6 OF TRACT MAPS AT PAGE 36. OFFICIAL RECORDS OF SANTA CU.RA COUNTY, B£JNG LOCATED IN THE CITY OF CUPERTINO, COUNTY OF SANTA CURA, STATE OF CALIFORNIA, BEING MORE PARTICULARLY DESCRIBED AS FOU.OWS:
COMMENCING AT A STANDARD MONUMENT IN BOX SET ON THE MONUMENT LINE IN THE INTERSECTION OF RODRIGUES AVENUE AND TORRE AVENUE AS IS SHOWN ON THE ABOVE REFERENCED TRACT MAP. FROM WHICH A SIMILAR MONUMENT BEARS SOUTH B9"03'2D" EAST 27B.7B FEO: THENCE FROM SA.JC POINT OF COMMENC£MENT SOUTH B0-47'11" EAST 368.33 FEET TO THE TRUE POINT OF BEGINNING: THENCE FROM SAID POINT OF BEGINNING NORTH 01"22'3D" EAST 12.67 FEET; THENCE SOUTH B8"37'30" EAST 31.54 FEET; THENCE SOUTH 01"22'3D" WEST 19.00 Frrr: THENCE SOUTH 88"37'3o· EAST 17.43 mm THENCE SOUTH 01·22•30• WEST 10,66 FEET: THENCE NORTH 89'3D'5o· WEST 26.« FEET; THENCE NORTH D1".!16•32• EAST 17..40 FEET: TMENCE NORTH B0""7'11• WEST 22.61 FEET TO THE POINT OF BEGINNING.
TOGETHER WITH A NON-EXCLUSIVE: EASEMENT FOR llTlUTY PURPOSES FIVE FEET IN WIDTii THE CENTERLINE OF WHICH IS DESCRIBED AS FOlLOWS: BEGINNING AT A POINT WHICH BEARS SOUTH 01•22•.!ID" WEST "-17 f'EET FROM THE NORTHWEST CORNER OF THE ABOVE DESCRIBED LEASE AFl.EA MID RUNNING THENCE NORTH 88"37"30" WEST 13.30 f'EET: THENCE NORTH 01"22'30" EAST 7.55 f'EEf; THENCE NORTH B8"37'30" WEST "3.41 FEET TO A POINT HEREAFTER DEFINED AS POINT "A": Tf.IENCE CONTINUING NORTH 88"37'30" WEST so.n FEET; THENCE NORTH D1"22'30" EAST 6.12 f'EET MORE OR LESS TO THE PUBLIC FUGKT OF WAY,
ALSO TOGETHER WITH A NON-EXCLUSIVE EASEMENT FOR UTILITY PURPOS£S nvt FEET IN WIDTli THE CENTERLINE OF WHICH IS DESCRIBED AS FOU.OWS: BEGINNING AT THE PREVIOUSLY DESCRIBED POINT "A" AND RUNNING THENCE NORTH 01"22'30" WEST 7.44 FEET MORE 'DR LESS TO THE PUSUC RIGHT OF WAY.
AL.SO TOGETHER WITH A NON-EXCLUSIVE EASEMENT FOR ACCESS a: UTILITY PURPOSES FIFTEEN FEET IN WIDTH THE CENTERLINE OF WHICH IS DESCRIBED AS FOLLOWS: BEGINNING AT A POINT WHICH BEARS NORTH 89'30'50" WEST 22.10 rEET FROM THE SOUTHEAST CORNER OF THE ABOVE DESCRIBED LEASE AREA AND RUNNING THENCE SOUTH 01"22'30" WEST 1B.18 FEET: THENCE NORTH 88"51•15"' WEST 113.26 FEET: THENCE NORTM 01"08"45" EAST 58.3 FEET TO THE PUBLIC RIGHT OF WAY,
ALSO TOGUHER WJTH A NON-EXCWSIVE EASEMENr ~OR ACCESS PURPOSES SIX FEET IN. WIDTH TliE CENTERUN.E OF WHICH IS DESCRIBED AS FOLLOWS; BEGINNING AT A POINT WHICH SEARS SOUTH 01"22."3o· WEST 9.3.!I FEET FROl.I THE NORTMWEST CORM.ER or THE ABOVE DESCRIBED LEASE AREA AND RUNNING THENCE NORTH 88".37'30" WEST 12.BD FEET; THENCE SOUTH 01•22.'30"' WEST 39.DO F'EET.
ALSO TOGETHER WITH AN AERIAL EASEMENT HAVING A RADIUS OF 10.00 FEET AND BEING CENTERED ON THE PROPOSED TOWER LOCATION AS IS SHOWN HEREON.
VICINITY MAP
~ I '<I I I I I I I I
t
~ "1 "1 i:i::.,.., u::>-< zO
UJ !':':g "'~ ~=<3 :ii~ :> "'o· :>;"' "10: :JO ~~~ ~ ~ Q~ E-< E-< ~~~ ~~ z-iu rn. < "1 ~
C-1
I
I I
I~
I~ ~ I~
11
I I
FOG LINE
.....
PROPOSED 0 NON-EXCWSIVE VERIZON 'MRaESS UllLITY ROUTE H PROPOSED 5' NON-EXCLUSIVE VERIZON 'MRELESS UllLITI' ROU
/ARKING INDICATORS
ELECflruCAL eo:
I I ~
: ....
I
...
Ll
1~~11 :f lil I 11 ~ l~·I ' ;;::t,rA
.... ~ '= I I I I_, , PROio ... · .. I L PROl"OSED6'NON-EXcws1VE~-~LLO&.n.oN/'~·~~ VERIZON WIRELESS • I
I
---c.!';.~-~ss~ENTT -~·" -I 1 '?.~ PROPOSQl ~IU f
/
't PROPOSED 15' NbN-EXCWSl\IE VERIZON L NON-EXCLUSIVE VERIZON WIRELESS AERIAL I WIRELESS ACCESS & UTILITY EASEMENT EASEMENT 112.1 so. FT. +/-I I I lj --PEXISTING 10' P.U E. _ -----_L ""PLOYEE PARKING• ~<R 16'/TRACTS/'6 ~II= j --=:-~ ---f,fl I I / i'i~.:'~.;>;,~~,EA~:'..':i '-......_ / PER EJ42/0R/166
. -----)---I EXISTING 5' WCE. RE CLEARANCE: EASEMENT)
-40' 1REE 1RIMMING RADIU I 1 / I "' '"/TRAClS/'6
I I i i I i l .... ~ : ~ ! L--·--~ / I I I l
I I .
,P
/ /,/
ALL ElEVA1lONS ARE A.M.S.L UNLESS NOlED OTHERWISE.
MAXIMUM TREE CANOPY HEIGHT• 27+'
I I I I I I
I
I
I
I I I
./
60UNOARY SHO'MI IS BASED ON MONUMENTATION FOUND AND RECORD INFORMA110N. lHIS IS NOT A BOUNDARY SURVEY. lHIS IS A SPECIALIZED TOPOGRAPHIC MAP WllH PROPERTY LINES ANO EASEMENTS BEING A GRAPHIC DEPICTION BASED ON INFORMATION SOURCES OF ONUMENTAllON SUR~. NO :HED OR AND LINES OF ·1ED NOR SURVE'rED. NO PROPERTY MONUMENTS ...,,,.,,
"THESE ORAWINGS ANO/OR lHE ACCOMPANYING SPECIFlCATlON AS INSTRUMENTS OF" SERVICE, ARE 11-IE EXCLUSl\IE PROPER1Y OF GEIL ENGINEERING ANO 11-IEIR USE ANO PUBLICATION SHAU. BE RESTRIClED TO "THE ORIGINAL SllE AND CARRIER FOR
~
!1~+1,~~I
~ s= := ~;d~ ~! ! •
~ i~~ ~-iqi " ~ " WHIGH "THEY ARE PREPARED. REUSE, I I REPRODUCTION DR PUBLICATION BY ANY i ~~~~~ ~og:T ~~I~~· IS , ~ ~I , PERMISSION FROM GEIL ENGINEERjNG TITI.E f----~---< TO THESE PLANS AND/OR SPECIACATIONS SHALL REMAIN \YITH GEIL ENGINEERlNG Wlll-IOUT PREJUDICE ANO \1SUAL CONTACT WllH 11-iEM SHAU. CONSlllUlE PRIMA FACIE EVIDENCE OF ACCEPTANCE OF" THESE RESTRICTIONS.
~ 0'1 0'1 p:;,...; u::>-< zO wf:>:ll Z<..: "'"'" ~&io i;..oz UJ E-< e:: o°' <>lo"' N°''" Z o::> ... " ~ ~
"~ ;~ '"~ ...... 0"' ,..,,.. "-;;
r -VL__. -
SCALE 1" = 10' C-2 .._,_ "" eo 90
PROJECT AREA ENLARGEMENT
74211405.l
Exhibit C
Site Plans
[See attached]
23
EXISTING TELCO VAULT, PROPOSED VERIZON WIRELESS TELCO P.O.C.
EXISTING CURB, BY OTHERS, TO REMAIN
EXISTING ELECTRICAL VAULT, PROPOSED VERIZON WIRELESS POWER P.O.C.
~ j ;: PROPOSED VERIZON WIRELESS ~ ~I :_i s·-o· WIDE NON-EXCLUSIVE
I I ' UTIUTY EASEMENT
j t ___ffi ENLARGED SITE PLAN ~ I: ,,, j ~ 1 PROPOSED VERIZON WIRELESS ~ ;, SIM. A4.1 UNDERGROUND POWER I I I . I'
PROPOSED VERIZON WIRELESS UNDERGROUND POWER & TELCO
40'-11·
1<-0\JR\Gl.ltS p._\J[\'11.l[
I I l I I I· Ir"· I I I
EXISTING LIGH6~H~R~~g~~iJ!~ t .1 ~j f?RJZrl .,_.J¥j !
'--'
/__ NG LOT, BY 7 EXl5ci~~iR~~T~ REMAIN
"
. ;Ji "* ~~g~E J5ksEXISTING BLACKWOOD
EXISTING FENCE LINE, BY OTHERS, TO REMAIN
1--+---t----~:i~~gE 5~~~~CONTROL STORM
-#.Jl--+-+1------EXISTING 10' P.U.E.
EXISTING 5' WIRE --r--trt-+----+lf-----CLEARANCE EASEMENT
II I ~~~~~ ;gNRCERM~ CURB, BY
0'2' 10' 20' 1:..:. • .1 (2\ PARTIAL SITE PLAN ~SCALE:.1"=10.0' 1n = 10.0'
o' 20' 1 oo· 200· 1:..:. • .1 , .. = 100.0'
PARTIAL SITE PLAN~ W/PROPOSEO
EQUIPMENT COMPOUNDS ,::·:" • .,. ....
~ODRIGUES AVENUE ,"'(--22~i[~-,
I J .
1
1 : 11
I l_l 11
1
1· : •.. I Ill I 1l1i
I [[[II I Ill I Ill:'."':
w I llll:e I ~ I Ill 8 "' I PN· 369-31-033 [[[, -I i:! A . Ill' I ~I: 111/" .... Ill i:! ~ M ~
O', 1111"' I Ill 15 I m: i:!
I Ill/ ~ I [[[ > I M ~
I [[j/ I Ill I 111:
I 1 Ill/ L1
Ill
111: ~ _)II ·"'o---~-:-1~,..__ I
f' 170.23·.£. 7.80'ft PACIF!CA DRNE
~ (1\ OVERALL SITE PLAN ~SCALE:1n:::100.0'
39.51' I[_
36.91' ft
w• ~ ~~~ ~ r ~ J ~ I
(f) ~ f--61~ ! ~H ~ H~ ::?! m ...... •
11 i':J wwv "'"'-uzo w"' "'>"' z« ~~~ ti?~ c) <( 1---~ NO\:r: zoW C:S"'"-a~D
t: 0 N ·-:i.. ~
Revisions: .&--1--l .&:,,.--/--/-
..&.--/--/-.4..-1--/-IA-1--1--
File:lti2.B36..Att.""g Dmvm Br:llSI" CheckedBv:wsr Scale: ASHaTED Oote:12/11/201s
Job No.162.!3S
~ ~ d ~ , ~ ~ • ~ • ~ ~ y
~ • ~ ~ -
z :s "-w f-U1
:::l <( 0:: w 6
Al.1
PROPOSED VERIZON WIRE!.£SS RRH UNITS W/ A2 BACKPACKS
PROPOSED VERIZON WIRELESS ANTENNAS
PROPOSED VERIZON WIRELESS SURGE PROTECTORS
NOTE: VERIZON WIRELESS TO INSTALL ''LEAF SOCKS" ON ALL PROPOSED PANEL ANTENNAS & RRH UNITS. ALL ANTENNAS & EQUIPMENT TO BE PAINTED FLAT GREEN
NOTE: BRANCHES SHOWN ARE FOR ILLUSTRATIVE PURPOSES ONLY. NOT TO SCALE
EXISTING LIGHT STANDARD, BY OTHERS, TO REMAIN
WEST ELEVATION A3.l) SCALE: 1/4-= 1 '-0"
PROPOSED VERIZON WIRELESS RRH UNITS -----~ W/ A2 BACKPACKS
:l~~r~;SEDA~TE:~~ -----~
PROPOSEDS~~~lfO~;:~~~~ -----~
TREE POI E APPEARANCE ANO MAINTENANCE
THE APPLICANT SHALL CONSTRUCT A EUCALYPTUS sm.E TREEPOLE TO RAJSE THE HEIGHT OF THE ANTENNAS AND SHALL MITT Tl-1E FOLLOWING DESIGN CRITERA:
a. USE A SUFFICIENT NUMBER or ARTIFICIAL BRANCHES TO OBSCURE THE APPEARANCE or THE PANEL ANTENNAS AND ANY ASSOCIATED MOUNTING FRAMEWORK_ b. PANEL ANTENNAS MOUNTES AWAY FROM THE MAST SHALL BE COVERED BY LEAF SOCKS TO BLEND WITH THE GREEN FOLIAGE OF Tl-1E ARTIFICIAL BRANCl-ES. c. THE MAST SHALL BE WRAPPED WITH A FAUX BARK ANO ANY ANTENNA MOUNTED CLOSE TO THE MAST SHALL BE PAINTED BROWN TO MIMIC A TREE TRUNK. d. THE FOLLIAGE SHALL HAVE A MOffiED GREEN COLORATION.
(PER COA #6)
COLOCATION OF ANTfNNAE
THE TREEPOLE SHALL BE STRUCTYURALLY DESINGED TO ACCOMODATE THE COLLOCATION OF ADDITIONAL ANTENNAE FROM OTHER WIRELESS CARRIERS. THE CO-LOCATION AGREEMENT SHALL BE AT MARKET RATES WITH REASONABLE COMPENSATION TO THE MAST OWNER.
(PER COA #3)
PROPOSED VERIZON WIRELESS FAUX BARK ClADDING (PER COA #6)
PROPOSED VERIZON WIRELESS MONO-EUCALYPTUS
EXISTING TRASH ENCLOSURE, BY OTHERS. TO REMAIN
PROPOSED VERIZON WIRELESS BOKW DIESEL GENERATOR W/ LEVEL 2 ENCLOSURE ON A 6'-0"X13'-0" CONCRETE SLAB (PER COA #9)
PROPOSED VERIZON WIRELESS IPE WOOD SlAT FENCE (PER COA H7)
PROPOSED VERIZON WIRELESS ARCTOSTAPHYLOS BUSHES {PER COA #13)
EXISTING LIGHT STANDARD, BY OTH~S. TO REMAIN
EXISTING TRASH ENCLOSURE, BY OTHERS, TO REMAIN
---~~OF PR0£_0SED B~ so.oo' AG.L:T
~~OF PRO!OSEO ME_NO-EU~
55.00' A::G.LT
CL~~OSED ~IZON ~ELESS ~ENNAS~ 52.00'A.G.L
NOTE: VERIZON WIRELESS TO INSTALL "LEAF SOCKS" ON ALL PROPOSED PANEL ANTENNAS & RRH UNITS. ALL ANTENNAS & EQUIPMENT TO BE PAINTED FIAT GREEN
NOTE: BRANCHES SHOWN ARE FOR ILLUSTRATIVE PURPOSES ONLY. NOT TO SCALE
PROPOSED VERIZON WIRELESS FAUX BARK CLADDING {PER COA f6)
PROPOSED VERIZON WIRELESS MONO-EUCALYPTUS
SOUTH ELEVATION A3.1 J SCALE: 1/4' = 1'-0"
I!!! ;! ®~i i; a~ :! U!l: ~~
Ul ~1· i i u ~ n: • ~ t~ (/) ~u ::?m ..-.. •
i':S ww .... "'"' ~ o:z:O w"' v>> °' d]<< GJ~'-' t::;gs6 <Ct-~ NO<>' zo"-" i:5"' o_ c S: D
): 0 N ·c
~
Revisions: ,.&.--/--/--.&-/-/-A-1-1-&-!--/-17.\-t-/-
Job-No.1SUJ6
~e Ii ,, 'I I• 'i ~; !!1 iii j!~ .;1 !•' R'I •Ii I• m::
~
~
CJ) z 0 ~ _J w
f-u w -, 0 O'.'. o._
A3.1
74211405.1
Exhibit D
Construction Schedule
[See attached]
24
Site Name: De Anza Stevens Creek
General Contractor: Supervisor's Name and Contact Number:
I ACTIVITY II Week 1 II Week 2 II Week 3 II Week 4 II Week 5 II Week 6 II Week 7 I
::slMITIWIT IF Is ::slMITlwlT IF Is ::slMITlwlT IF Is ::slMITlwlT IF Is ::slMITIWIT IF Is ::slMITIWIT IF Is ::slMITlwlT IF Is:
PreCon Meeting Completed Previous Week
Dig Alert/Utility Marks Comp-~ Telco Conduits
Electrical Conduits
Tower Foundation R Equipment Foundation
Generator Pad ~ Tewer Set
Equipment Set •.
Coax Cable Tray/Conduits
Antennas & Coax
Site Electrical IHIHI
Site Grounding --Landscape & Irrigation Building Final fRl
NOTES:
VZW Construction Schedule Rev.O 9/3/05
Exhibit E
Insurance Requirements
Lessee shall purchase and maintain the insurance policies set forth below at its sole cost
and expense. Such policies shall be maintained for the full term of this Lease. The term "City"
shall include the duly elected or appointed council members, commissioners, officers, agents,
employees and volunteers of the City of Cupertino, California, individually or collectively.
1. MINIMUM SCOPE AND LIMITS OF REQUIRED INSURANCE POLICIES.
On or before the commencement of the terms of this Lease, Lessee shall furnish City with
certificates showing the type, amount, class of operations covered, effective dates and dates of
expiration of insurance coverage in compliance with this Exhibit. These certificates, which do not
limit Lessee's indemnification, shall also contain substantially the following statement: "Should
any of the above insurance covered by this certificate be canceled or coverage reduced before the
expiration date thereof, Lessee affording coverage shall provide thirty (30) days' advance written
notice to the City of Cupertino, "Attention: City Manager." Endorsements including the City as
additional insured shall be submitted with the insurance certificates. The following policies shall
be maintained with insurers authorized to do business in the State of California and shall be issued
under forms of policies satisfactory to the City:
74211405.l
(1) Workers' Compensation:
Statutory coverage as required by the State of California.
(2) Liability:
Commercial general liability coverage in the following minimum limits:
Bodily Injury: $1,000,000 each occurrence
$2,000,000 aggregate -all other
Property Damage: $500,000 each occurrence
$1,000,000 aggregate
If submitted, combined single limit policy with aggregate limits in the
amounts of $2,000,000 will be considered equivalent to the required
minimum limits shown above.
(3) Automotive:
Comprehensive automobile liability coverage in the following minimum
limits:
Bodily injury: $500,000 each occurrence
Property Damage: $500,000 each occurrence or
25
Combined Single Limit: $1,000,000 each occurrence
2. SUBROGATION WAIVER:
Lessee agrees that in the event of loss due to any of the perils for which it has agreed to provide
comprehensive general and aut.omotive liability insurance, Lessee shall look solely to its insurance
for recovery. Lessee hereby grants to City, on behalf of any insurer providing comprehensive
general and automotive liability insurance to either Contractor or City with respect to the services
of Contractor herein, a waiver of any right to subrogation which any insurer of Lessee may
acquire against City by virtue of the payment of any loss under the insurance.
3. ABSENCE OF INSURANCE COVERAGE.
City may direct Lessee to immediately cease all activities with respect to this Lease if it determines
that Lessee fails to carry, in full force and effect, all insurance policies with coverages at or above
the limits specified in this Lease. Any delays or expense caused due to stopping of work and
change of insurance shall be considered Lessee's delay and expense. At the City's discretion,
under conditions of lapse, City may purchase appropriate insurance and charge all costs related to
such policy to Lessee.
4. PROOF OF INSURANCE COVERAGE AND COVERAGE VERIFICATION.
A Certificate of Insurance, on an Accord form, and completed coverage verification shall be
provided to City by each of Lessee's insurance companies as evidence of the stipulated coverages
prior to commencement of this Lease, and annually thereafter for the term of this Agreement. All
of the insurance companies providing insurance for Lessee shall have, and provide evidence of, a
Best Rating Service rate of A VI or above. The Certificate of Insurance and coverage verification
and all other notices related to cancellation or non-renewal shall be mailed to:
City Clerk
City of Cupertino
10300 Torre Avenue
Cupertino, CA 95014-3202
74211405.1
26