15. Antenna Site Lease
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CUPERJINO
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City Hall
10300 Torre Avenue
Cupertino, CA 95014-3255
(408) 777-3354
Fax: (408) 777-3333
DEPARTMENT OF PUBLIC WORKS
Summary
AGENDA ITEM
IS-
AGENDA DATE December 6.2005
SUBJECT AND ISSUE
Adoption of Resolution No. 05- ;2,b 3 , 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.
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FISCAL IMP ACT
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,
ST AFF RECOMMENDATION
Staff recommends that the City Council adopt Resolution No. 05- :2..03, 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:
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David W. Knapp
City Manager
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Director of Public Works
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Antenna Site Lease Agreement
between the CITY of Cupertino and
Nextel of California, Inc., a Delaware Corporation, d/b/a Nextel Communications
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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 ofland. 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
lirnitation, 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 ofrequired 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
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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 often
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 ofreceipt of written notice from the CITY, LESSEE shall renew or replace such surns
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 ofthe
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 ofthe 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.
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II. TERM OF LEASE
A. COMMENCEMENT AND TERMINATION The term ofthis 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 Te="), 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 rnonetary breach or default within thirty (30) days or a non-monetary breach within sixty
(60) days this LEASE shall be subject to te=ination 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 te=inate 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
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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 rémoval, and provided that CITY has given LESSEE and any
third party fmancing entity thirty (30) days prior written notice, the Facilities shall be deemed
abandoned and City May dispose of the Facilities. LESSEE shall notify CITY ofthe name and address
of the third party fmancing 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 RlGHTS 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 tirne without CITY consent. CITY acknowledges that LESSEE has entered into a
financing arrangernent including promissory notes and fmancial and security agreements for the
financing of the Facilities (the "Collateral") with a third party fmancing entity (and may in the future
enter into additional financing arrangements with other fmancing 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 ofthis 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
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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
I. 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 ofthis 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
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Cupertino, 10300 Torre Avenue, Cupertino, CA 95014, without prior demand and without any
abatement; deduction or setoff.
B. LATE PAYMENT CHARGE The rent shaH be delinquent if not received by the
close ofthe business day on the lOth 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 ofthis 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: .
I. 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
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1. Ouiet 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 pe~cent (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.
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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 LESS¡<:E 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,
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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 indemnity, 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 indemnity, 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 ofthe work or provision of SERVICES hereunder by LESSEE, its
agents, representatives, employees or subcontractors.
a. Minimum Scope ofInsurance The coverage shall include Commercial
General Liability together with Broad Form Comprehensive General Liability including explosion,
collapse and underground; Automobile liability including Code I (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 ofInsurance 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
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aggregate for public liability and five hundred thousand dollars ($500,000) combined single limÜ 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. Policv 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, emplòyees, 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 ofInsurers Theinsurance carrier shall provide proof of
theirratings. 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 arid Repairs LESSEE agrees to assume full responsibility for the
operation, maintenance, and repairs of the PREMISES throughout the term hereof without expenses to
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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 ofthis 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 rnonthly in advance together with the monthly Rent. The parties
estimate the Utility Charge at the Commencement Date to be Two Hundr6d 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 ofthe damage or
destruction by so notifying CITY in writing no rnore 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
ofthis 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
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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. Ifterrninated, 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 ofthe 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 1. 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 ofthe
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
frorn 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 tJ::¡ereto 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
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, ,
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,CA94596
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 er¡.ter the PREMISES for the
purpose of viewing and ascertaining the condition of the same, or to proteét 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 prornptiy and any all
reasonable costs incurred by CITY in having such necessary rnaintenance 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 ternlinate without further notice at expiration of
the term. Any holding over by LESSEE after expiration shall be under the same terms ofthis 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.
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I)~{Y
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 umeasonably interfere
with LESSEE's use of the PREMISES and will reimburse LESSEE for physical damages, if any, to
LESSEE's facilities lócated 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 ofthe 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 sub lessees 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 terin, 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 ofthe 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, s¡¡ch
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.
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" "
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 ofthis 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 obj ection, 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.
TN 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.
CITY OF CUPERTINO
~
BY
TIT
John Statton, Mayor
NEXTEL OF CALIFORNIA, INC.
BY
TITLE
Æ....LP, .ru'--
Mark B. Nelson
Vice President
MARi{ NELSO\\!
JUN~' 2000
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EXHIBIT" A"
CA-2151B/Hwy 280/87
10555 Mary Avenue
Cupertino, CA 95014
APN: 326-06-052
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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 NEXTEL OF CALIFORNIA, INC.
WHEREAS, on June 19, 2000, the City Council of the City of Cupertino approved
Resolution 00-184, authorizing execution of an 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 ofNextel; 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, 20 I 0, 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 ifNextel 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 Citv Council
AYES:
NOES:
ABSENT:
ABSTAIN:
ATTEST:
APPROVED:
City Clerk
Mayor, City of Cupertino
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