HomeMy Public PortalAbout20090812 - Resolution - Board of Directors (BOD) (3) Cover Sheet for Scanning by ECS
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Document Date: 8/12/2009
Document Type: Resolution
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Keywords (no more than 4): C&C Communications Site Lease
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Document No. 09-26
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RESOLUTION NO. 09-26
RESOLUTION OF THE BOARD OF DIRECTORS OF
THE MIDPENINSULA REGIONAL OPEN SPACE
DISTRICT APPROVING THE COMMUNICATIONS
SITE LEASE AND ACCESS LICENSE WITH C&C
EQUIPMENT COMPANY, INC. (RANCHO SAN
ANTONIO OPEN SPACE PRESERVE, BLACK
MOUNTAIN)
The Board of Directors of the Midpeninsula Regional Open Space District does resolve
as follows:
Section One. The District may, under the provisions of Section 5540 and 5563 of the
Public Resources Code, lease property owned by the District for a period of up to twenty-five
(25)years, and the Board of Directors finds that the premises to be leased for Communication
Facilities are presently unnecessary for park and open space purposes and considers that a lease
of such premises for Communication Facilities to be in the public interest, on the terms
proposed.
Section Two. The Board of Directors of the Midpeninsula Regional Open Space District
does hereby approve the Communications Site Lease (Lease) between Midpeninsula Regional
Open Space District and C&C Equipment Company, Inc., a copy of which is attached hereto and
by reference made a part hereof, and hereby authorizes the President or other appropriate officers
to execute said Lease on behalf of the District.
Section Three. The General Manager of the District or the General Manager's designee
shall cause to be given appropriate notice of acceptance to Lessee. The General Manager is
authorized to approve options of the Lease on the terms and conditions set forth in the Lease.
The General Manager shall report any such option of the Lease to the Board of Directors at the
meeting immediately following the granting of the option. The General Manager is authorized to
review and approve an additional modular communication building on the premises and report
any such action to the Board of Directors at a meeting immediately following such approval.
The General Manager further is authorized to execute any and all other documents necessary or
appropriate to the closing of the transaction.
RESOLUTION No. 09-26
PASSED AND ADOPTED by the Board of Directors of the Midpeninsula Regional Open Space
District on August 12, 2009 at a Special Meeting thereof, by the following vote:
AYES: MARY DAVEY,LARRY HASSETT,NONETTE HANKO,PETE SIEMENS,
CECILY HARRIS,CURT RIFFLE
NOES: NONE
ABSTAIN:
ABSENT: JED CYR
A T: APPROVED:
Secretary President
Board of Directors Board of Directors
1, the Deputy District Clerk of the Midpeninsula Regional Open Space District, hereby
certify that the above is a true and correct copy of a resolution duly adopted by the Board of
Directors of the Midpeninsula Regional Open Space District by the above vote at a meeting
thereof duly held and called on the above day.
Deputy District Clerk
COMMUNICATIONS SITE LEASE AND ACCESS LICENSE
THIS LEASE is made and entered into this 12th day of August . 20 09 by and
between MIDPENINSULA REGIONAL OPEN SPACE DISTRICT, a California special district
hereinafter called"District"and C&C EQUIPMENT COMPANY, INC,hereinafter called
"Lessee."
RECITALS
WHEREAS, District and Lessee have established a communications facilities site on Black
Mountain in the City of Palo Alto and on the Rancho San Antonio Open Space Preserve; and
WHEREAS, District and Lessee desire to enter into a new Lease for the continued operation of
said communications site by Lessee;
NOW THEREFORE, District and Lessee agree:
1) Premises. District hereby leases that certain parcel of land shown on Exhibit A attached
hereto and incorporated herein("Premises")to Lessee, and Lessee hereby leases the Premises
from District.
2) Term.
a) Initial Tenn. The term of this Lease shall commence on September 1, 2009, and shall
expire ten(10)years thereafter, unless sooner terminated in accordance with the
provisions hereof, or unless extended pursuant to an option to extend the Lease term
expressly granted herein.
b) Options to Extend Term. District hereby grants to Lessee options("Option")to extend
the term of this Lease for each of one(1) additional period of ten(10)years and one(1)
additional period of five(5)years, each upon expiration of the proceeding term so that
the maximum term of this Lease, including the initial ten years of this Lease, shall be for
a total of twenty-five(25)years. Each of said options to extend the term hereof shall be
exercised by Lessee, if at all,by Lessee's delivery of notice of exercise of such option to
District at least three(3)months,but not more than nine(9)months,prior to expiration of
the Lease term(as extended, if at all, from time to time). Each of said extension periods
shall be on all the provisions contained in this Lease, except for the rent, which shall be
adjusted as provided for below. Notwithstanding the foregoing, if Lessee is in default
hereunder on the date of delivery of any option notice required to be given in order to
exercise an option, said Option notice shall be totally ineffective, or if Lessee is in default
on the date the extended term referred to in any such Option notice is to commence, such
extended term shall not commence and this Lease shall expire at the end of the term
during which such Option notice is given. Lessee shall not be entitled to exercise any of
the Options to extend following the first Option to extend unless each and all of the
preceding Options to extend have been properly exercised in accordance herewith. In the
event the term of this Lease shall for any reason expire or terminate, all Options to extend
which have not been exercised shall be deemed to terminate upon such expiration or
sooner termination, and shall thereafter be of no further force or effect. The Option to
extend granted by District to Lessee are personal to Lessee and shall not be exercised by
or assigned,voluntarily or involuntarily,to anyone other than Lessee. Any assignment of
one or more of said Option to extend without District's prior written consent shall be
void. After Lessee's exercise of any one or more of said Option to extend, all references
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in this Lease to the term shall be considered to mean the term as extended, and all
references to expiration or termination of the term of this Lease shall be considered to
mean the expiration or termination of the term as extended.
c) Lessee acknowledges that California Public Resources Code Section 5563 provides in
part that: "When land or property is temporarily unnecessary for park or open space
purposes,it may be leased for other purposes for a term not exceeding 25 years with an
express provision in the lease that should the board by ordinance determine to use the
lands for park, open space, or other District purposes, the lease shall thereby be
terminated." Accordingly, notwithstanding anything to the contrary herein contained,
District shall be entitled to terminate this Lease at any time during the term hereof
pursuant to said Section 5563, provided only that District delivers to Lessee written
notice of such termination at least twenty-four(24)months prior to the date on which
such termination shall become effective.
d) Lessee may terminate Lease upon at least twelve(12)months written notice to District.
3) Rent, Lessee will pay each month the greater of either Paragraph 3.a or Paragraph 3.b:
a) Fixed Minimum Rent, Lessee shall pay to District in advance on the first day of each
month the Fixed Minimum Rent of$3,467.17 per month for September 1, 2009 through
August 31,2010. Annually thereafter the Fixed Minimum Rent shall be adjusted to equal
75%of the average monthly Percentage of Gross Fees Rent actually paid by Lessee to
District over the preceding one year period [(Annual Percentage of Gross Fees Received
for Proceeding Year/12 months)x 75%=Fixed Minimum Rent].
b) Percentage of Gross Fees Payment. No later than the thirtieth (30fl')day following each
calendar month upon which the calculation is made, Lessee shall pay District a
Percentage of Gross Fees Rent of twenty-five percent(25%)of the gross fees received
for such calendar month, directly or indirectly, by Lessee.
c) Gross Fees. "Gross Fees"means the entire amount of all fees and charges for rights,
including without limitation communications privileges and licenses of whatsoever
nature,granted by Lessee with respect to all or any portion of the Improvements, or with
respect to the substantial use of all or any portion of the Improvements and/or any
communications equipment therein by Lessee or any other person, firm, or corporation.
"Gross Fees"includes, without limitation, all deposits received and not refimded to
customers in connection with any transaction with respect to the Improvements, and all
orders secured or received with respect to the Premises by telephone, mail, house to
house or other canvassing by personnel which Lessee, in the normal and customary
course of its operations would credit or attribute to its business derived from or made
possible by the Improvements and/or any communications equipment therein. No
deduction shall be allowed for uncollected or uncollectible credit amounts. Lessee shall
be entitled to deduct from the amount of Gross Fees,the amount of any city, county,
state, or federal sales, use,gross receipts, luxury, or excise tax on such fees or charges
which is both added to the fee(or absorbed therein)and paid to the taxing authorities by
Lessee(but not by any customer of Lessee). Any transaction on an installment basis or
otherwise involving the lending of credit shall be treated as a charge for the full and
normal amount thereof in the month in which such transaction was entered into,
irrespective of the time of payment. Notwithstanding the foregoing, the following items
and services are specifically excluded from the definition of"Gross Fees":
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i) Equipment servicing
ii) Technical services
iii) Antennae combining
iv) Licensing applications
v) Sales and service of communication equipment and other services which do not relate
to Lessee's or any sub-lessee's use or occupation of the Premises
vi) Fees received from the Federal government tenants located on Tower B
d) All rent payable by Lessee under this Lease shall be payable without notice or demand,
and without any deduction,offset or abatement, in lawful money of the United States of
America to District at the address stated herein or to such other persons or at such other
places as District may from time to time designate in writing.
e) Lessee shall keep at its principal office true and complete records and accounts of all
Gross Fees as defined herein, including bank deposits,made with respect to business
conducted at or otherwise derived from the Premises. Such books and records shall
include such records of gross sales as would normally be examined by an accountant
pursuant to generally accepted auditing standards in performing an audit on Lessee's
gross fees. On or before the thirtieth(30th)day of each month, Lessee shall furnish to
District a true and accurate statement for each preceding month, of all Gross Fees during
said preceding month, which statement shall be certified by a responsible representative
of Lessee to be correct. Lessee agrees to give District access during normal business
hours to such books and records. Lessee shall keep and preserve for at least two(2)years
after the end of each calendar lease year all bank books, or duplicate deposit slips, and
other evidence of such fees for such year, and shall keep and preserve for at least two(2)
years after expiration of the term thereof all license agreements and other agreements
granting to a customer of Lessee any rights whatsoever respecting the Improvements or
any equipment therein.. District shall have the right at any time and from time to time to
audit all of the books of account, bank statements, documents, records,returns, papers,
and files of Lessee relating to Gross Fees, and Lessee on request by District shall make
all such matters available for such examination at Lessee's principal place of business;
provided that, if Lessee's principal place of business is situated in a location which is
more than forty(40)miles from District's principal place of business, which is currently
located in Los Altos, California,then Lessee shall make such information and materials
available to District at District's principal place of business. If District shall have such an
audit made for any years and the Gross Fees shown by Lessee's statement for such year
shall be found to be understated by more than two percent(2%),then Lessee shall pay to
District the cost of such audit. Districts right to have such an audit made with respect to
any year shall expire twelve(12)months after Lessee's statement for such year shall have
been delivered to District. District shall have the right to terminate this Lease upon notice
to Lessee if there should be more than two(2)audits during the term of this Lease which
reveal understatements of Gross Fees by Lessee by more than two percent(2%). The
term"lease year"means the period during the Lease term commencing on January I in
each year and ending at midnight on the 31 st of December next occurring,except that the
first lease year shall commence at the start of the lease term and shall end at midnight on
the 31 st of December next occurring, and except that the last lease year shall end at the
end of the Lease term.
4) Taxes. Lessee shall pay any and all possessory taxes levied against the Premises and/or the
improvements during the Lease term. Lessee shall pay such taxes at least ten(10)days prior
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to delinquency thereof, and shall promptly thereafter deliver to District written receipts or
other reasonable evidence of the payment thereof.
5) Use,
a) The Premises may be used for purposes of installing, operating and maintaining
equipment for transmission and reception of electromagnetic and other communications
signals, and for all lawful uses incidental thereto, and for no other purpose without
District's prior written consent. Lessee shall not use the Premises or permit anything to be
done in or about the Premises which will in any way conflict with any statute, ordinance,
rule, regulation,or other statement of lawful governmental authority now in force or
which may hereafter be promulgated(collectively"Regulations"), and shall at its own
expense abide by and comply with any and all such Regulations regulating the use of the
Premises. Such Regulations shall be deemed to include the then current"Regulations for
Use of Midpeninsula Regional Open Space District Land"and"Item No. 3 of the
Nfidpeninsula Regional Open Space District Basic Policy"incorporated herein by this
reference.
b) Notwithstanding the foregoing, District reserves the right to enter on the Premises and to
use the same in any manner District shall desire, including without limitation for
purposes of constructing, installing, operating, maintaining,repairing, replacing, altering,
and moving pipelines,conduits, culverts, ducts, fences,power and communication poles
and lines, and District reserves the right to grant easements over, across, under, or upon
the Premises,or for ingress and egress thereto, or for any other purpose,provided only
that any such use by District and District's granting of any such easements shall not result
in any unreasonable interference with Lessee's use of the Premises.
6) Access to Premises.
a) District hereby grants to Lessee a non-exclusive revocable License permitting Lessee,
Lessee's authorized agents,employees, contractors, and sub-lessees to use a segment of
that certain road providing access to the Premises,which segment is situated on land
owned by District and is more particularly outlined in Exhibit C attached hereto and
incorporated herein by this reference(the"License Area").The License granted pursuant
to this paragraph may be revoked by District at any time by delivery of a six-month
written notice to Lessee of such revocation, and shall terminate automatically without
notice and without need for further documentation upon the expiration or sooner
termination of the Lease term.
b) The License Area shall be used by Lessee, if at all,only for purposes of obtaining ingress
to and egress from the Premises. Lessee shall exercise its access rights pursuant to the
License granted herein only in such manner as will minimize erosion or other damage to
the License Area, and shall refrain from using the same to the extent reasonably
practicable when weather conditions shall render the License Area subject to greater than
normal erosion or other damage. Lessee shall not permit trucks and/or other machinery or
equipment weighing in excess of ten(10)tons to use the License Area, except during the
time of construction of Lessee's Improvements on the Premises, or with District's prior
written consent
c) Lessee shall, at Lessee's sale cost and expense, repair all damage to the License Area, as
well as all damage to improvements within or adjacent to the License Area designed to
protect the surface of the License Area such as water drains,berms,or culverts, caused by
use of the License Area by Lessee or its agents, employees, or contractors. Lessee shall
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be liable for any damage to the License Area and its immediate surroundings arising from
its use thereof, or its repair or failure to repair the same as hereinabove required
d) Lessee hereby expressly acknowledges that District does not warrant or otherwise
guarantee to Lessee continuous access to the Premises by way of the License Area or
otherwise. Notwithstanding the foregoing sentence, District shall use its best efforts to
provide access to the Premises across other land owned by District, and District further
represents that District has an alternate route to the Premises from Page Mill Road, in the
event the License Area shall be rendered impassable due to causes beyond the reasonable
control of Lessee,or if District shall for any reason terminate the License herein granted,
provided only that Lessee agrees to pay its pro-rata share of any and all additional
expenditures incurred by District as a result thereof. Any permits, licenses or easements
as may be required from time to time in order to cross over lands not owned by District in
order to gain access to the Premises shall be obtained by Lessee at its sole cost and
expense.
7) Maintenance and Repair. Lessee acknowledges that it has inspected the Premises, and Lessee
accepts the Premises"as is"in the condition existing at commencement hereof Lessee shall,
at Lessee's expense, maintain the Premises in good, safe and sanitary condition, order and
repair, and shall keep the Premises free from trash and other debris. Lessee shall promptly
remove from the Premises any vehicles, machinery,equipment or other items which Lessee
from time to time no longer uses in the conduct of its business on the Premises. As modular
buildings are repainted, Lessee agrees to repaint the buildings the color as specified by
District staff. As fencing is moved and/or replaced, dark green fencing shall be required.
8) Fire Clearance, Defensible space of at least 100 feet in width around the perimeter of the
Premises is required by law(Public Resource Code 4291). Defensible space shall be
maintained free of all low-lying brush, dry weeds, and similar flammable materials at
Lessee's expense. Annual site inspections of the Premises will be conducted by District staff
to ensure that the defensible space is properly maintained. As needed,the District will
arrange for the removal of brush,weeds,and flammable materials. The cost shall be pro-
rated, based on the size, topography and flammable material in each area requiring
maintenance, and overlap with other communication site Premises. Upon completion of
work, Lessee will be billed for the work performed which shall be paid to District within 30-
days of billing.
9) Alterations.
a) Lessee shall not make or permit to be made any alterations, additions or improvements
("alterations")to or of the Premises or any part thereof without the prior written consent
of District,which consent shall not be unreasonably withheld and provided that Lessee
shall have the right to make any alterations, additions or improvements to the interior of
the Improvements and/or the antenna systems without securing District's prior approval.
b) District shall be entitled to review and accept or reject the design of all alterations which
Lessee may desire to make to the Premises. Prior to commencing construction or
installation of any alteration the design of which District determines is acceptable,Lessee
shall deliver to District detailed plans and specifications for such construction or
installation and obtain District's consent thereto,which consent shall not unreasonably be
withheld.
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c) All construction or installation work performed by Lessee or caused to be performed by
Lessee in,on or about the Premises shall comply in all respects to all applicable statutes,
ordinances,building codes,rules and regulations, including but not limited to file,safety,
and construction standards of lawful governmental authority, and shall furthermore
comply with District's open space use and management guidelines then in effect.
d) Any consent given by District pursuant to this Paragraph shall not constitute implied
consent to any subsequent alteration upon or to the Premises,but shall apply only to those
items or matters for which consent was expressly requested.
e) Lessee shall notify District at least ten(10)days in advance of any construction on the
Premises,and District shall be entitled to post on the Premises notices of non
responsibility in favor of District prior to commencement of any such construction.
10) Liens. Lessee shall keep the Premises free from any liens arising out of any work performed,
materials furnished or obligations incurred by Lessee.
11) Utilities. Lessee shall pay directly to the charging authority promptly as the same become due
all bills for any and all services and utilities supplied to the Premises, including but not
limited to telephone, water, gas, electricity and garbage removal.
12) Waiver of Claims and Indemnification. Lessee waives all claims against District for loss of
business or for damage to property, including the improvements and any alterations thereto
and any equipment or machinery therein, or injury or death to persons occurring in,on, or
about the Premises,or the License Area, from any cause arising at any time,except as may be
caused by the negligence or willful misconduct of District. Lessee,on behalf of itself and its
Permittees, hereby indemnifies District and holds District exempt and harmless from and
against any damage to property or injury or death to persons arising from the use by Lessee or
its Permittees of the Premises, or the License Area, or from the failure of Lessee to keep the
Premises,the License Area or the required defensible space in good and safe condition as
herein provided, District shall not be liable to Lessee or its Permittees for any damage,
injury,or death arising out of the act or negligence of any owner, occupant, or user of any
property adjacent to or in the vicinity of the Premises and not owned by District. Lessee shall
pay all damage to the Premises and surrounding areas caused by its Permittees, invitees,
licensees, agents, contractors, and employees.
13) Insurance.
a) Lessee, at Lessee's sole expense, shall obtain and keep in force during the term of this
Lease a conu-nercial general liability insurance policy with an insurance company
satisfactory to District, protecting District and Lessee against any and all liability arising
from Lessee's use of the Premises, or the License Area, or from any occurrence in, on,
about, or related to the Premises,or the License Area with a single combined property
damage and personal injury limit of One Million Dollars($1,000,000). All such public
liability insurance shall insure performance by Lessee of the indemnity provisions hereof,
and the policy shall contain a cross-liability endorsement. Lessee agrees to furnish a
certificate of such insurance to District naming District as an additional insured on or
prior to the commencement hereof, and again upon any renewal or modification of such
insurance. No such policy of insurance shall be cancelable or subject to reduction of
coverage or other modification except after thirty (30)days prior written notice to
District. The limits of said insurance shall in no event be deemed to limit the liability of
Lessee hereunder.
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b) District shall have no obligation to insure against loss to Lessee's leasehold
improvements, fixtures, machinery, equipment, or other personal property in or about the
Premises occurring from any cause whatsoever, and Lessee shall have no interest in the
proceeds of any insurance carried by District.
14) Assignment and Subletting. Lessee shall not assign this Lease or any interest therein,without
the prior written consent of District,which consent shall not be unreasonably withheld.
Consent by District to one assignment shall not be deemed to be consent to any subsequent
assignment. An assignment without the prior written consent of District, or any assignment or
subletting by operation of law, shall be void and shall, at the option of District, terminate this
Lease. Lessee is engaged in the business of granting use of portions of the Improvements to
other persons, firms,corporations, or entities. In order that Lessee's business purposes may be
efficiently and expeditiously achieved, Lessee shall have the right to rent or sublet any
portion of the Improvements at any time in accordance with Lessee's previously established
business practice. Any rental or sublease may be reviewed at any time by the District in
accord herewith. District may, for good cause shown, request that a rental or sublease be
terminated; in such case, Lessee agrees to take necessary action to terminate such rental or
sublease agreement. District agrees that no such request for termination will be unreasonably
made. Lessee shall not,during the term of this Lease, encumber its interest in the Premises by
mortgage or deed of trust or other security instrument, or otherwise use the Premises as
security for any indebtedness of Lessee
15) Default.
a) The occurrence of any of the following shall constitute a material default and breach of
this Lease by Lessee:
(i) The abandonment of the Premises by Lessee;or
(ii) A failure by Lessee to observe and perform any provision of this Lease
to be observed or performed by Lessee.
b) In the event of any such default by Lessee, and in addition to any other remedies
available to District at law or in equity, this Lease and all rights of the Lessee hereunder
shall be terminated upon delivery by District of notice of such termination to Lessee
Upon such termination, District may recover from Lessee all amounts to which District
may be entitled pursuant to Section 1951.2 of the California Civil Code, or any successor
statute hereinafter enacted, including but not limited to(i)the worth at the time of award
of the amount by which the unpaid rent for the balance of the term after the time of award
exceeds the amount of such rental loss for the same period that Lessee proves could be
reasonably avoided, discounting such amount at the discount rate of the Federal Reserve
Bank of San Francisco at the time of award plus one percent(1%), and further including
(ii)any other amount necessary to compensate District for all the detriment proximately
caused by Lessee's failure to perform Lessee's obligations under this Lease or which in
the ordinary course of things would be likely to result therefrom,including but not
limited to all expenses incurred by District in connection with demolishing all structures
on the Premises and removing the debris therefrom, and removing any other property left
by Lessee on the Premises.
c) In addition to the remedies provided above, in the event Lessee shall fail to perform any
obligation to be performed by Lessee under this Lease, or shall fail to pay any sum
required to be paid by Lessee under this Lease, District may, but shall not be obligated to
do so,perform or pay the same or cause the same to be performed or paid, and Lessee
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shall promptly upon demand by District therefore,reimburse to District all costs
reasonably incurred by District in connection therewith, together with interest on such
sums at the lower of fifteen percent(15%)per annum or the highest rate then permitted
by law from the date incurred by District until repaid in full by Lessee.
16) E=by District. In addition to such rights to use the Premises as are reserved by District in
Paragraph 6(b),District shall, at any and all reasonable times have the right to enter onto the
Premises to inspect the same,to exhibit the Premises to prospective purchasers or Lessees, to
post notices of non-responsibility, and to alter, improve or repair the Premises, all without
abatement of rent payable by Lessee hereunder. Lessee hereby waives any claim for damages
for any loss of occupancy or quiet enjoyment of the Premises occasioned thereby.
17) Waiver. The waiver by District of any breach of any term,covenant,or condition herein
contained shall not be deemed to be a waiver of such term,covenant, or condition or any
subsequent breach of the same or any other term, covenant, or condition hereof. The
subsequent acceptance of rent hereunder by District shall not be deemed to be a waiver of any
preceding breach by Lessee of any term, covenant or condition of this Lease,other than the
failure of Lessee to pay the particular rent so accepted.
18) Surrender of Premi ses.
a) At the expiration of this Lease, Lessee shall upon District's prior written consent remove
all Improvements, including fixtures, equipment, furnishings and furniture,regardless of
whether such items are affixed to the Premises, except for District owned equipment or
improvements, and provided that any damage to the Premises occasioned thereby is
promptly repaired by Lessee at Lessee's sole cost and expense(unless District expressly
waives the need for such repairs).
b) Should Lessee terminate the Lease prior to the twentieth year hereof, Lessee shall leave
any Improvements identified by District, including fixtures, equipment, furnishings and
furniture,regardless of whether such items are affixed to the Premises, for the use and
ownership of District. Parties shall negotiate in good faith to determine the Fair Market
Value(FMV)of such Improvements by obtaining a joint appraisal of such Improvements
from a qualified appraiser. District may purchase said Improvements for such FMV.
Should District elect not to purchase any such Improvements, Section 18(a)above shall
apply-
c) Lessee hereby specifically waives any rights to, and releases District from any and all
claims for relocation benefits and/or relocation payments to which Lessee might
otherwise be entitled pursuant to California Government Code Section 7260 el seq., and
any similar or successor statutes,Lessee shall hold District harmless from and indemnify
District against any and all liability, cost, and expense suffered or incurred by District and
arising in connection with any such right or claim.
19) Holding Over. Any holding over after the expiration of the term,with the consent of District,
shall be construed to be a tenancy from month to month on the same terms and conditions
specified herein so far as applicable.
20) Indemnification for FrgQuengy Interference Claims. Lessee agrees to indemnify District,hold
District harmless and defend District from and against any and all claims, demands, or
actions arising from claims of other Lessees of the District of frequency interference caused
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by Lessee. The parties acknowledge that the Federal Communications Commission(FCC)
has exclusive jurisdiction over disputes regarding frequency interference.
2 1) Improvements.
a) Existing Improvements and proposed improvements are shown in Exhibit D. Existing
Improvements include the following: (i)Two(2)modular buildings, I Vx22%(ii) 120'
tower and foundation; (iii)a 45 kilowatt generator; (iv)One(1)modular building, 6'x10'
I.D.; and(v)a perimeter fence. Lessee may construct such other improvements within
the Lease Premises as District shall authorize in writing.
b) Construction of Impiovements. At any time and from time to time during the term,
Lessee may, but is not obligated to, construct or otherwise make new Improvements on
any part of all of the Premises and to add to any existing Improvements in whole or in
part, and to modify or change the contour or grade, or both,of the land,provided Lessee
is not then in default under any condition or provision of this Lease. Before any major
work of construction, alteration, or repair is commenced on the Premises, Lessee shall
apply for and obtain all necessary permits for the construction of Lessee's proposed
Improvements, from the County of Santa Clara and/or City of Palo Alto, after first
obtaining written approval from District, which approval shall not be unreasonably
withheld. Lessee shall give District written notice immediately prior to the actual
commencement of construction. District shall have the right to post and maintain such
notices as may be necessary or advisable to protect District's interest from mechanics'or
materialmen's liens or other liens of similar nature. Lessee covenants that it will cause to
be included in all contracts for construction of any kind or nature relating to the Premises
a provision stating that District is not responsible or liable in any respect for the
obligations incurred under such contracts. The entire cost and expense of the construction
of any Improvements on the Premises, including plans and permits and all on-site
Improvements shall be borne by and paid solely by Lessee. Upon commencement of
construction, Lessee shall proceed with due diligence to the completion of the
Improvements and shall use best efforts to complete the same without unreasonable
delay. Lessee shall file a Notice of Completion upon the completion of the
Improvements.
c) Title to the Improvements. Title to all Improvements now existing and/or constructed by
or for Lessee shall be vested in and remain in Lessee. Lessee's trade fixtures, equipment
and Improvements shall remain the property of the Lessee and Lessee may remove the
same at the end of the term,or sooner termination of the term of this Lease. Upon written
request from Lessee, District shall execute and deliver any instrument that may be
required by any equipment supplier, vendor, lessor and/or lender whereby District waives
and/or releases any rights it may have or acquire with respect to any equipment or trade
fixtures Lessee or any sub-lessee may affix to the Premises and agreeing that the same do
not constitute realty.
22) Use of Lessee's Improvements by District. District shall have the right to place its own radio
equipment within Lessee's Improvements at no rental charge. District will enter into a Lessee
Site License agreement with Lessee. Should District desire to install any additional
equipment on the Premises or Improvements, District may sublease additional space at
Lessee's normal and customary fees, charges and rent,provided that additional space is
available and that such additional use causes no interference with existing users. District
equipment subject to rent free placement are those components identified in Exhibit B,
attached hereto and incorporated herein.
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23) Limitations on Lessee's Right to Solicit Existing Single User Lessees.
a) The term"single user Lessee" is limited to, and includes Stanford Educational Television
and the Federal Aviation Administration(FAA). These Lessees have facilities on
District's lands for their sole use and do not lease,rent to license their facilities to others.
b) Lessee is a"multi-user Lessee", in that it intends to sublet and license others to use
Lessee's communication facilities, now existing or to be built,on District's land. District
has other"multi-user Lessees"on District land and Lessee may solicit and sublease to
any sub-Lessee of any other multi-user Lessee on District land.
c) Lessee shall not solicit or seek to relocate to Lessee's facility any of the present, existing
uses of any of the single user Lessees listed above. Lessee shall have the right to relocate
any of the single user Lessee's antennae to Lessee's tower to solve any interference
problems.
24) Notices. All notices, statements, demands,requests, approvals, or consents(collectively
"notices")given hereunder by either party to the other shall be made in writing and shall be
served personally or by first class mail, certified or return receipt requested, postage prepaid,
and addressed to the parties as follows:
District: Real Property Manager
Midpeninsula.Regional Open Space District
330 Distel Circle
Los Altos, CA 94022
(650)691-1200 (telephone)
(650)691-0485 (fax)
Lessee: President
C&C Equipment Company, Inc.
P.O. Box 1138
Eastsound, WA 98245
(360) 376-2150(telephone)
(360) 376-2151 (fax)
or to such other address as either party may have furnished to the other as a place for the service
of notice. Any notice so served by mail shall be deemed to have been delivered three(3) days
after the date posted.
25) General.
a) This Lease contains all of the terms, covenants, and conditions agreed to by District and
Lessee, and this Lease may not be modified orally or in any manner other than by an
agreement in writing signed by all of the parties to this Lease or their respective
successors in interest.
b) The covenants and conditions hereof] subject to the provisions as to subletting and
assignment, shall inure to the benefit of and bind the heirs, successors, executors,
administrators, sub-lessees, and assigns of the parties.
c) When the context of this Lease requires,the masculine gender includes the feminine, a
corporation, or a partnership, and the singular number includes the plural.
d) The captions of this Lease are for convenience only and are not a part of this Lease and
do not in any way limit or amplify the terms and provisions of this Lease.
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e) This Lease shall be governed and construed in accordance with the laws of the State of
California with venue in the County of Santa Clara.
f) Time is of the essence as to all of the provisions of this Lease as to which time of
performance is a factor.
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IN WITNESS WHEREOF, the parties hereto execute this Lease.
MIDPENINSULA REGIONAL OPEN SPACE LESSEE
DISTRICT
C&C EQUIPMENT COMPANY,INC
ird9dent, Board of Directors
Date: ��1.2. B®/ Title: T7�D��'►
} Date: 0' 7'D
ey
Attest:
Anna Jatc
District Cl
Approved as to form:
Susan M. Schectman, General Counsel
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