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HomeMy Public PortalAbout20091116 - Resolution - Board of Directors (BOD) (3) Cover Sheet for Scanning by ECS 4rieinatine Department General Manager Laserfiche Template Board of Directors Template Fields Document Date: 11/16/2009 Document Type: Resolution Preserve Name: Keywords(no more than 4): FAA Communications Site Lease Project Name: Project Number: Vendor or Other Party: Name (First): Name (Last): Address: APN Number: Document No, 09-32 Additional Field: Additional Field: Additional Field: Additional Field: RESOLUTION NO. 09-32 RESOLUTION OF THE BOARD OF DIRECTORS OF THE MIDPENINSULA REGIONAL OPEN SPACE DISTRICT APPROVING THE COMMUNICATIONS SITE LEASE WITH THE UNITED STATES OF AMERICA ACTING THROUGH THE FEDERAL AVIATION ADMINISTRATION OF THE DEPARTMENT OF TRANSPORTATION. (RANCHO SAN ANTONIO OPEN SPACE PRESERVE, BLACK MOUNTAIN) I 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 the United States of America, acting through the Federal Aviation i Administration of the Department of Transportation, 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 further authorized to approve options for extensions 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 further is authorized to execute any and all other documents necessary or appropriate to the closing of the transaction. i RESOLUTION NO. 09-32 PASSED AND ADOPTED by the Board of Directors of the Midpeninsula Regional Open Space District on November 18, 2009 at a Special Meeting thereof, by the following vote: AYES: Jed Cyr, Larry Hasset, Nonette Hanko, Pete Siemens, Cecily Harris , and Curt Riffle NOES: ABSTAIN: ABSENT: Mary Davey ATTEST: APPROVED: /Cretar/ President Board of Directors Board of Directors I, the Interim 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. Interim District Clerk COMMUNICATIONS SITE LEASE AGREEMENT This Agreement is made by and between the Midpeninsula Regional Open Space District, a special district of the State of California("District") and the United States of America, acting through the Federal Aviation Administration of the Department of Transportation ("Federal Government"). WHEREAS, District is the owner of certain real property located in the County of Santa Clara, State of California, a part of Rancho San Antonio Open Space Preserve; and WHEREAS, Federal Government leases portions thereof from District for the purposes of operating and maintaining communications structures and facilities and related equipment; and WHEREAS, District and Federal Government desire to enter into a new lease for such real property and for such purposes. Now, therefore, the parties agree: 1. Premises. A parcel of land, consisting of approximately 0.59 acres more or less and referred to as "Site 3" on Exhibit A and described in Exhibit B, attached hereto and incorporated herein by this reference("Premises"). 2. Access to Premises. Access to the Premises is only permitted on the route shown on Exhibit A ("License Area"). Federal Government shall access the Premises only in such a manner and at such times so as to minimize contribution to erosion potential. Federal Government shall not pen-nit heavy trucks and/or other heavy machinery or equipment [weighing in excess of ten(10) tons] to use the License Area. Federal Government shall, at Federal Government's sole cost and expense, repair all damage to the Premises, as well as all damage to improvements within or adjacent to the Premises designed to protect road access to the Premises such as water drains, berms, or culverts, caused by use by Federal Government or its agents, employees, or contractors. Federal Government shall 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. Federal Government expressly acknowledges that District does not warrant or otherwise guarantee to Federal Government 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 in the event the License Area shall be rendered impassable due to causes beyond the reasonable control of Federal Government, or if District shall for any reason terminate the license herein granted, provided only that Federal Government agrees to pay 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 Federal Government at its sole cost and expense. FAA Communications Lease—2009 Page 1 3. Use. The Premises may be used for the purposes of 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. Federal Government shall use the Premises in accordance with all statues, ordinances, rules, regulations, or other statements of lawful governmental authority with jurisdiction over the Premises and over Federal Government's use thereof, now in force or hereafter promulgated, including those of the District (collectively, "Regulations"), and shall at its own expense abide by and comply with any and all such Regulations regulating Federal Government's use of the Premises. Notwithstanding the foregoing, District reserves the right to enter on the Premises and to use the same (except for the Improvements) 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 roads, or for grazing purposes, 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 the conduct of Federal Government's business on the premises. 4. Term. a) Initial Term. Provided that adequate appropriations are available from year to year for the payment of rentals, the term of this Lease is from October 1, 2008, and expires five (5) 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 Federal Government options to extend the term ("Extended Term") of this Lease for each of four(4) additional periods of five (5) years, each upon expiration of the proceeding term so that the maximum term of this Lease, including the initial five years of this Lease, shall be for a total of twenty-five (25) years. The lease may, at the option of the Federal Government,be extended beyond September 30, 2013 and no extension shall extend beyond September 30, 2028. Federal Government shall notify the District no later than ninety(90) days before the expiration of the lease term, of its intent to exercise the option(s) or of its intent to vacate the premises at the end of the lease term. Any extension exercised by the Federal Government pursuant to this clause shall be subject to the availability of adequate appropriations from year to year for the payment of rentals. Notwithstanding the foregoing, if Federal Government 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 Federal Government 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. Federal Government 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 FAA Communications Lease—2009 Page 2 i 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 options to extend granted by District to Federal Government are personal to Federal Government and shall not be exercised by or assigned, voluntarily or involuntarily, to anyone other than Federal Government. Any assignment of one or more of said options to extend without District's prior written consent shall be void. After Federal Government's exercise of any one or more of said options to extend, all references 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 t'erm as extended. Upon exercise by Federal Government of any of the four(4) options to extend the Lease Term granted pursuant hereto, the parties shall execute an amendment to that effect and setting the Rent for such Extended Term. c) Federal Government 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 Federal Government written notice of such termination at least twenty-four(24) months prior to the date on which such termination shall become effective. 5. Rent. (a) The Fixed Monthly Rent("Rent") for the Premises for the Initial Term shall be Three Thousand Five Hundred and Seventy-Five Dollars ($3575.00). Rent for each Extended Tenn shall be set by adjustment of the annualized, then current Rent,by four percent (4%) for each of the Extended Tenn years, the average of the sum of which shall be the annual Rent for such Extended Term, payable on a pro-rata basis monthly. (b) Federal Government shall pay District rent in monthly installments, in arrears, on the last day of each month of the Tenn hereof. All rent payable by Federal Government under this Lease shall be payable as set forth herein, without notice or demand, and without any deduction, offset or abatement, in lawful money of the United States of America to the District, or to such other persons or at such other places as District may, from time to time, designate in writing. All rent payable by Federal Government under this Lease will be made by electronic funds transfer as described in Exhibit C. The FAA uses the Central Contractor Registration (CCR) system as the primary means to maintain Contractor information required for payment under any FAA contract. Please reference Exhibit C. 6. Late Payment Provision. Notwithstanding any other provisions of this Lease, unless paid FAA Communications Lease—2009 Page 3 within fifteen(15) days following the due date, all amounts due to the District shall bear interest until paid at the rate determined by the Secretary of the Treasury pursuant to the Public Law 92- 14, 85 Stat. 97. 7. Improvements. Authorized improvements ("Improvements") are described and shown in Exhibit D, attached hereto and incorporated herein by this reference. Except for the Improvements specifically authorized, Federal Government shall not make or permit to be made any alterations, additions or improvements to, or of, the Premises or any part thereof without the prior written consent of District. District shall be entitled to review and to reasonably accept or reject any change which Federal Government may desire to make to the Premises. Prior to commencing construction or installation of any alteration the design of which District determines is acceptable, Federal Government shall deliver to District detailed plans and specifications for such construction or installation and obtain District's consent thereto. Any consent given by District shall not constitute implied consent to any subsequent alteration upon or to the Premises and shall apply only to those items or matters for which consent was expressly requested. Federal Government shall notify District at least twenty(20) 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. Title to the Improvements and to all alterations constructed or installed on the Premises shall be and remain vested in Federal Government. 8. Maintenance and Repair. Federal Government accepts the Premises "as is" in the condition existing at commencement hereof. Federal Government shall, at Federal Government'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. Federal Government shall promptly remove from the Premises any vehicles, machinery, equipment or other items which Federal Government from time to time no longer uses in the conduct of its business on the Premises. 9. 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 Federal Government'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, Federal Government will be billed for the work performed which shall be paid to District within 30-days of billing. 10. Utilities. Federal Government shall timely pay for all utilities furnished to the Premises for use by Federal Government. 11. Lien. Federal Government shall keep Premises free from any liens arising out of any work performed, materials furnished or obligations incurred by Federal Government. FAA Communications Lease—2009 Page 4 12. Surrender and Restoration of Premises. At the expiration or sooner termination of the Lease term and upon written request by District (to be made no later than ten (10) days after the date of such expiration or sooner termination), Federal Government shall, at Federal Government's sole cost and expense, demolish the Improvements and remove the debris resulting therefrom as well as any and all equipment, vehicles, machinery or other devices remaining on or about the premises. Federal Government shall be entitled, without obtaining District's prior consent, to remove all furniture and trade fixtures not affixed to either the premises or the Improvements at the expiration or sooner termination of the Lease term, provided any damage occasioned thereby is promptly repaired by Federal Government at Federal Government's sole cost and expense (unless District expressly waives the need for such repairs). Upon demolition and/or removal by Federal Government of such Improvements, furniture, trade fixtures, vehicles, machinery and other devices on the premises, Federal Government shall at it sole expense restore the premises to as good condition as that existing at the time of Federal Government's initial entry upon the premises under this Lease or any preceding Lease to the reasonable satisfaction of the District. (Ordinary wear and tear, damage by natural elements and by circumstances over with Federal Government has no control are excepted.) If Federal Government shall fail to so demolish the land affected thereby, all within ninety(90) days after the end of the Lease term, or within such additional time as may be mutually agreed upon, District shall be entitled to perform such work at Federal Government's expense. The obligations of the Federal Government and rights of the District set forth in this paragraph shall survive the termination of this Lease. 13. Interference with Communications and Indemnification of Interference Claims. Federal Government's Improvements shall not disturb the communications configurations, equipment and frequency which exist on District Land upon commencement hereof and shall comply with all non-interference rules of the Federal Communications Commission ("FCC"). The parties acknowledge FCC jurisdiction over disputes regarding frequency interference. 14. Waiver of Claims. With regard to any liability which may arise out of work under this Agreement, each party expressly agrees that it shall be solely and exclusively responsible for its own agents, servants, and/or employees and that neither party looks to the other to save or hold it harmless for the consequences of one of its own agents, servants, and/or employees. Neither party is hereby waiving any rights or protection it presently enjoys by reason of any applicable State or federal law. In accordance with and subject to the conditions, limitations and exceptions set forth in the Federal Tort Claims Act of 1948, as amended(28 USC 2671 et. seq.),hereafter termed "the Act" the Federal Government will be liable to persons damaged by any personal injury, death or injury to or loss of property, which is caused by a negligent or wrongful act or omission of an employee of the Government while acting within the scope of his office or employment under circumstances where a private person would be liable in accordance with the law of the place where the act or omission occurred. The foregoing shall not be deemed to extend the Federal Government's liability beyond that existing under the Act at the time of such act or omission or to preclude the Government from using any defense available in law or equity. FAA Communications Lease—2009 Page 5 I 15. Quiet Enjoyment. District warrants that they have good and valid title to the Premises, and rights of ingress and egress, and warrants and covenants to defend the Government's use and enjoyment of said premises against third party claims. 16. Notification Of Change In Land Title. Should District sell or otherwise convey to another party or parties any interest in the aforesaid land, rights of way thereto, and any areas affecting said demised Premises, District shall notify h Government, in writing, of an such transfer or conveyance affecting the demised Premises teGoe , g, y y g within 30 calendar days after completion of the "change in property rights". Concurrent with the written notification, District shall provide the Government copies of the legal document(s) (acceptable to local authorities) for transferring and or conveying the property rights. 17. Subordination Nondisturbance and Attornment. The Government agrees, in consideration of the warranties herein expressed, that this lease is subject and subordinate to any and all recorded deeds of trust, mortgages, and other security instruments now or hereafter imposed upon the premises, so long as such subornation shall not interfere with any right of the Government under this lease. It is mutually agreed that this subordination shall be self operative and that no further instrument shall be required to effect said subordination. In the event of any sale of the Premises, or any portion thereof, or any such transfer of ownership, by foreclosure of the lien of any such security instrument, or deed provided in lieu of foreclosure, the Government will be deemed to have attorned to any purchaser, successor, assigns, or transferee. The succeeding owner will be deemed to have assumed all rights and obligations of the Lessor under this lease, establishing direct privity of estate and contract between the Government and said purchasers/transferees, with the same force, effect and relative priority in time and right as if the lease had initially been entered into between such purchasers or transferees and the Government; provided that such transferees shall promptly provide, following such sale or transfer, appropriate documentation deemed necessary by the Real Estate Contracting Officer, and shall promptly execute any instrument, or other writings, as shall be deemed necessary to document the change in ownership. 18. Contract Disputes. All contract disputes and arising under or related to this lease contract shall be resolved through the Federal Aviation Administration (FAA) dispute resolution system at the Office of Dispute Resolution for Acquisition(ODRA) and shall be governed by the procedures set forth in 14 C.F.R. Parts 14 and 1.7, which are hereby incorporated by reference. Judicial review, where available, will be in accordance with 49 U.S.C. 46110 and shall apply only to final agency decisions. A Lessor may seek review of a final FAA decision only after its administrative remedies have been exhausted. All Contract Disputes shall be in writing and shall be filed at the following address: FAA Communications Lease—2009 Page 6 li i Office of Dispute Resolution for Acquisition, AGC-70, Federal Aviation Administration, 800 Independence Ave., S.W., Room 323, Washington, DC 20591 Telephone: (202) 267-3290 Facsimile: (202) 267-3720 A contract dispute against the FAA shall be filed with the ODRA within two (2) years of the accrual of the lease contract claim involved. A contract dispute is considered to be filed on the date it is received by the ODRA. The full text of the Contract Disputes clause is incorporated by reference. Upon request the full text will be provided by the RECO. 19. Protest. (a) Protests concerning Federal Aviation Administration Screening Information Requests (SIRs) or awards of lease contracts shall be resolved through the Federal Aviation Administration(FAA) dispute resolution system at the Office of Dispute Resolution for Acquisition(ODRA) and shall be governed by the procedures set forth in 14 C.F.R. Parts 14 and 17, which are hereby incorporated by reference. Judicial review, where available, will be in accordance with 49 U.S.G. 46110 and shall apply only to final agency decisions. A protestor may seek review of a final FAA decision only after its administrative remedies have been exhausted. (b) Offerors initially should attempt to resolve any issues concerning potential protests with the Real Estate Contracting Officer. (c) Protests shall be in writing and shall be filed at: Office of Dispute Resolution for Acquisition, AGC-70, Federal Aviation Administration, 800 Independence Ave., S.W., Room 323, Washington, DC 20591 Telephone: (202) 267-3290 Facsimile: (202) 267-3720 At the same time as filing the protest with the ODRA, the protestor shall serve a copy of the protest on the Real Estate Contracting Officer(RECO). (d) A protest is considered to be filed on the date it is received by the ODRA and shall be filed: (i) Not later than seven(7)business days after the date the protester knew or should have known of the grounds for the protest; or (ii) If the protester has requested a post-award debriefing from the RECO, not later than five (5)business days after the date on which the RECO holds that debriefing. j L —2 FAA Communications ease 009 Page 7 The full text of the Protest clause is incorporated by reference. Upon request the full text will be provided by the RECO. 20. Anti-deficiency Limitation. Pursuant to 31 U.S.C. § 1341,nothing contained herein shall be construed as binding the Federal Government to expend in any one fiscal year any sum in excess of appropriations made by Congress, for the purposes of this Agreement for that fiscal year, or other obligation for the further expenditure of money in excess of such appropriations. 21. Federal Tort Claims Act. Federal Government agrees that the construction, installation, maintenance and use of the structures, appurtenances, equipment, and tools on the lands of the District on which they are used or installed shall be effected with all reasonable diligence and precaution to avoid damage to the landproperty, or ersonnel of the District; further, the p g p Government agrees to cooperate, to the extent allowed by law, in the submission of claims pursuant to the Federal Tort Claims Act against the United States by third parties for personal injury, or property damage resulting from the negligent act or omission of any employee of the Government in the course of his employment (28 U.S.C. § 2671, et seq.). 22. Anti-Kickback. The Anti-Kickback Act of 1986 (41 U.S.C. 51-58) (the Act), prohibits any person from (i) Providing or attempting to provide or offering to provide any kickback; (ii) Soliciting, accepting, or attempting to accept any kickback; or(iii) Including, directly or indirectly, the amount of any kickback in the contract price charged by a prime Contractor to the United States Government or in the contract price charged by a subcontractor to a prime contractor or higher tier subcontractor. 23. Covenant Against Contingent Fees. The District warrants that no person or agency has been employed or retained to solicit or obtain this contract upon an agreement or understanding for a contingent fee, except a bona fide employee or agency. For breach or violation of this warranty, the Government shall have the right to annul this contract without liability or, in its direction, to deduct from the contract price or consideration, or otherwise recover the full amount of the contingent fee. 24. No Officials to Benefit. No member of or delegate to Congress, or resident commissioner, shall be admitted to any share or part of this contract, or to any benefit arising from it. However, this clause does not apply to this contract to the extent that this contract is made with a corporation for the corporation's general benefit. 25. Assignment and Subleasing. Federal Government may not assign or sublease, or otherwise transfer all or any part of its interest in this Agreement or in the Premises without the prior written consent of District, such consent not to be unreasonably withheld. Consent by District to one assignment or subletting shall not be deemed to be consent to any subsequent assignment or subletting. An assignment or subletting without the prior written consent of District, or any assignment or subletting by operation of law, shall be void and shall, at the option FAA Communications Lease—2009 Page 8 of District, terminate this Lease. Federal Government 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 Federal Government. 26. Entry by District. District may, at any and all reasonable times and upon 24 hours written notice to Federal Government, enter onto the Premises to inspect the same, to exhibit the Premises to other prospective Federal Governments, to post notices of non-responsibility, all without abatement of rent payable by Federal Government hereunder. Federal Government hereby waives any claim for damages for any loss of occupancy or quiet enjoyment of the Premises occasioned thereby. Notwithstanding the foregoing, District shall not access, disturb or open any of Federal Government's Improvements located on the Premises, except in the case of an emergency situation which poses a substantial and immediate threat of injury to persons or damage to Property, District shall provide Federal Government with such notice as is reasonably possible under the circumstances prior to such emergency access. 27. Waiver. The waiver by either party of a breach of any term, covenant, or condition herein contained by the other party 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 herein contained. Acceptance of Rent hereunder shall not be deemed to be a waiver of any preceding breach by Federal Government of any term, covenant or condition of this Lease, other than the failure of Federal Government to pay the particular rent so accepted. 28. Notices. All notices, statements, demands, requests, approvals, or consents (collectively, "notice") 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 other as follows: To District: To Federal Government: Midpeninsula Regional Open Space District United States Department of Transportation 330 Distel Circle Federal Aviation Administration Los Altos, CA 94022-1404 Real Estate &Utilities Branch, ANM-53 Attn: Real Property Department 1601 Lind Avenue SW Renton, WA 98057 or to such other address as either party nay 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. 29. General Provisions. This Lease contains all of the terms, covenants, and conditions agreed to by District and Federal Government, and 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. Terms, 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, FAA Communications Lease—2009 Page 9 administrators, sub-Federal Governments, and assigns of the parties. When the context of this Lease requires, masculine includes feminine, business entities of any kind and singular includes plural. Captions used herein are for convenience only, are not a part of this Lease and do not in any way limit or amplify the specific terms and provisions of the Lease. This Lease shall be governed and construed in accordance with the laws of the State of California in the County of Santa Clara. FAA Communications Lease—2009 Page 10 FEDERAL GOVERNMENT: By: Date: DISTRICT: Date: Pre ident Board of Directors Attest: c ..� ' Anna hater* Ac#,,-j District Clerk Approved as to form: 44U �)41.� Susan M. Schectman General. Counsel i FAA Communications Lease—2009 Page 11 FAA Communications Tower Location Monte Bello Open Space Preserve Rancho n Antonio \\-J - f '. �V! J, / Open S ace Preserv. FAA Communications _ Tower -- �� onte Be 4 C /lo Ro jr/ \ 1 2 3 - ,- _ ' 1 License Area Monte Bello Open Space Preserve rp 0 BPlla,Road / Exhibit A 0 0.1 0.2 0.4 Produced by Midpeninsula Regional Open Space Preserve, April 2009 e Miles EXHIBIT B Legal Description of FAA Lease Area on Black Mountain—Site 3 (Rancho San Antonio Open Space Preserve) A parcel of land 160 feet square located in Section 13, Township 7 South, Range 3 West, in the County of Santa Clara, State of California more fully described as follows: From the southwest comer of said Section 13 proceed North 53 degrees 9 feet 16 inches East for 1,289.5 feet, more of less to the US Corps of Engineers Triangulation Station "Black Mountain." Thence North 67 degrees 11 feet 52 inches East for 211.7 feet more or less to the true point of beginning; thence North 77 degrees 4 feet thirty-nine inches East for 160 feet; thence South 12 degrees 55 feet 21 inches East for 160 feet; thence South 77 degrees 4 feet thirty-nine inches West for 160 feet; thence North 12degrees 55 feet 21 inches West for 160 feet to the true point of beginning. All bearings are true and the parcel contains 0.59 acres, more or less. FAA Communications Lease—2009 Page 12 EXHIBIT C ELECTRONIC FUNDS TRANSFER (c) Method of Payment (FAA) (1) All payments by the Federal Government under this contract will be made by electronic funds transfer(EFT), except as provided in paragraph (a) (11) or(a) (111) hereof. As used in this clause, the term "EFT" refers to the funds transfer and may also include the payment information transfer. Payment information transfer refers to the payment information normally sent with a payment to assist the contractor in associating the payment to specific contracts. (11)In the event the Federal Government is unable to release one or more payments by EFT, the District agrees to either: (i) Accept payment by check or (ii) Request the Federal Government to extend the payment due date until such time as the Government can make payment by EFT (but see paragraph(d) of this clause). (III) In the event that the District is granted a waiver from EFT under the exceptions as provided for in FAA AMS Section T3.3.I.A-7, the Federal Government payments will be made by check. A waiver from EFT is not permanent, and the District must register for EFT when the circumstances that justified the waiver change. (d) District's EFT information. Federal Government will make payment to the District using the EFT information contained in the Central District Registration (CCR) database. In the event that the EFT information changes, the District will be responsible for providing the updated information to the CCR database (Reference Clause, "Central District Registration-Real Property"). If the District is granted an exemption from CCR, the District will follow the requirements of alternate clause "District Payment Information- Non-CCR". (e) Mechanisms or EFTpayment. The Government may make payment by EFT through either the Automated Clearing House(ACH)network, subject to the rules of the National Automated Clearing House Association, or the Fedwire Transfer System. The rules governing Federal payments through the ACH are contained in 31 CFR Part 210. (f) Suspension of payment. If the District's EFT information in the CCR database is incorrect, then the Government is not required to make payments to the District under this contract until correct EFT information is entered into the CCR database, and any invoice or contract financing request submitted during this period of noncompliance will be deemed not to be a proper invoice for the purpose of prompt payment under this contract. In such instances, the late interest payment terms of the contract regarding notice of an improper invoice and delays in accrual of interest penalties apply. FAA Communications Lease—2009 Page 13 (g) Liability for incomplete or erroneous transfers. (1) If an incomplete or erroneous transfer occurs because the Federal Government used the District's EFT information incorrectly, the Federal Government remains responsible for, (i) Making a correct payment; (ii) Paying any late payment penalty due; and (iii) Recovering any erroneously directed funds. O If an p II incomplete or erroneous transfer occurs because the District's EFT information was incorrect, or was revised within 30 days of Federal Government release of the EFT payment transaction instruction to the Federal Reserve System, and, (III) If the funds are no longer under the control of the payment office, the Federal Government is deemed to have made payment and the District is responsible for recovery of any erroneously directed funds; or (IV) If the funds remain under the control of the payment office, the Government will make payment under the provisions of paragraph(d) "Suspension of Payment". (h) EFT and payment terms. A payment will be deemed to have been made in a timely manner in accordance with the payment terms of this contract if, in the EFT payment transaction instruction released to the Federal Reserve System, the date specified for settlement of the payment is on or before the payment due date, provided the specified payment date is a valid date under the rules of the Federal Reserve System. (i) EFT and assignment of claims. If the District assigns the proceeds of this contract, as provided for in the assignment of claims terms of this contract, the District will require that the assignee register separately in the CCR database and that the assignee agree that payments will be made by EFT in accordance with the terms of this clause. The requirements of this clause will apply to the assignee as if it were the District. EFT information that shows the ultimate recipient of the transfer to be other than the District or the CCR registered assignee is incorrect EFT information within the meaning of paragraph(d) "Suspension of Payment" clause. (j) EFT and Change of Name or Ownership Changes. If the District transfers ownership of the property under lease or changes its business name, it will follow the requirements of section (g)of clause, "Central District Registration - Real Property". (k) Liability for change of EFT information by financial agent. The Government is not liable for errors resulting g from changes to EFT information made by the District's financial agent. (1) Payment information. The accounting office will forward to the District available payment information that is suitable for transmission as of the date of release of the EFT instruction to the Federal Reserve System. The Government may request the District to FAA Communications Lease—2009 Page 14 designate a desired format and method(s) for delivery of payment information from a list of formats and methods the payment office is capable of executing. However, the Government does not guarantee that any particular format or method of delivery is available at any particular payment office and retains the latitude to use the format and delivery method most convenient to the Government. The District can obtain detailed payment information by registering for the US Treasury PAID system. This can be done on the internet by logging onto the website: https:Hftnsapps.treas.gov/paid/. If the Government makes payment by check in accordance with paragraph(a) of this clause, the Government will mail the payment information to the remittance address contained in the contract and CCR database. CENTRAL CONTRACTOR REGISTRATION - REAL PROPERTY The FAA uses the Central Contractor Registration (CCR) system as the primary means to maintain Contractor information required for payment under any FAA contract. (a) Definitions. As used in this clause for: "Central Contractor Registration(CCR)database" means the primary Government repository for Contractor information required for the conduct of business with the Government. "Contractor" is synonymous with "District" for real property leases or other contracts "Data Universal Numbering System (DUNS)number" means the 9-digit number assigned by Dun and Bradstreet, Inc. (D&B)to identify unique business entities. "Data Universal Numbering System +4 (DUNS+4) number" means the DUNS number assigned by D&B plus a 4-character suffix that may be assigned by a business concern. (D&B has no affiliation with this 4-character suffix.) This 4-character suffix may be assigned at the discretion of the business concern to establish additional CCR records for identifying alternative Electronic Funds Transfer(EFT) accounts for the same parent concern. "Registered in the CCR database" means that the Contractor has entered all mandatory information, including the DUNS number or the DUNS+4 number, into the CCR database. (b) By submission of an offer, the offeror acknowledges that: (1) A prospective awardee will be registered in the CCR database prior to award, during performance, and through final payment. (2) The offeror will enter, in the space provided on the clause, Contractor Identification Number Data Universal Numbering System (DUNS) number- Real Property the offerors DUNS or DUNS+4 number that identifies the offerors name and address exactly as stated in the offer. The DUNS number will be used by the Contracting Officer to verify that the offeror is registered in the CCR database. FAA Communications Lease—2009 Page 15 (c) If the offeror does not have a DUNS number, it will contact Dun and Bradstreet directly to obtain one. (1) An offeror may obtain a DUNS number: (i) If located within the United States,by calling Dun and Bradstreet at 1-866-705- 5 711 or via the Internet at htlp://www.dnb.com; or (ii) If located outside the United States,by contacting the local Dun and Bradstreet office. (2) The offeror will be prepared to provide the following information: (i) Company* legal business. (ii) Tradestyle, doing business, or other name by which your entity is commonly recognized. (iii) Company Physical Street Address, City, State, and ZIP Code. (iv) Company Mailing Address, City, State and ZIP Code (if separate from physical). (v) Company Telephone Number. (vi) Date the company was started. (vii)Number of employees at your location. (viii) Chief executive officer/key manager. (ix) Line of business (industry). (x) Company Headquarters name and address (reporting relationship within your entity). Individual (non-corporate)Districts of real property that are not normally in the business of leasing real property: You should consider your leasing to the Government as a separate business (usually a sole proprietorship) then provide the pertinent ownership information as an sole proprietor when providing this information to Dunn& Bradstreet. (d) If an otherwise successful Offeror does not become registered in the CCR database in the time prescribed by the Contracting Officer, the Contracting Officer may proceed to award to the next otherwise successful registered Offeror, if the Contracting Officer determines it to be in the best interests of the Government. (e) Processing time, normally 48 hours, will be taken into consideration when registering. Offerors who are not registered will consider applying for registration immediately upon receipt of this solicitation. FAA Communications Lease—2009 Page 16 (f) The Contractor is responsible for the accuracy and completeness of the data within the CCR database, and for any liability resulting from the Government's reliance on inaccurate or incomplete data. To remain registered in the CCR database the Contractor is required to review and update, on an annual basis from the date of initial registration or subsequent updates, its information in the CCR database to ensure it is current, accurate and complete. Updating information in the CCR does not alter the terms and conditions of this contract and is not a substitute for a properly executed contractual document. (g) Changes (1)Name or Ownership Changes (i) If a Contractor has legally changed its business name, "doing business as" name, or division name (whichever is shown on the contract), or has transferred the assets used in performing the contract, the Contractor will provide the responsible Contracting Officer a minimum of one business day's written notification of its intention to: a) Change the name in the CCR database; b) Agree in writing to the timeline and procedures the Contracting Officer specifies to document the requested change in the contract. With notification, the Contractor will provide sufficient documentation to support the legally changed name then execute the appropriate supplemental agreement to document the name change provided by the Contracting Officer. (ii) The Contractor's entry of the name/ownership change in CCR does not relieve the Contractor of responsibility to provide proper notice of the name change to the Contracting Officer. The change in CCR cannot be made effective until the appropriate documentation/ supplemental agreement is executed by the Contracting Officer. Any discrepancy in payee information in CCR caused by a failure to fulfill the requirements specified in paragraph (g)(1) (i) above, will result in a discrepancy that is incorrect information, within the meaning of paragraph (d) Suspension of Payment of the electronic funds transfer(EFT)clause of this contract. (2) Assignment of Claims. The Contractor will not change the name or address for EFT payments in the CCR or manual payments to reflect an assignee. Assignees must separately register in the CCR database. The Contractor will notify the Contracting Officer and will comply with the instructions for submitting an Assignment of Claims notification. Information provided to the Contractor's CCR record that indicates payments, including those made by EFT, to an ultimate recipient other than that Contractor, without proper notice to the Contracting Officer, will be considered to be incorrect information within the meaning of the paragraph (d) "Suspension of payment" of the EFT clause of this contract. FAA Communications Lease—2009 Page 17 (h) Exceptions to CCR. As provided for in AMS Procurement Toolbox Section T3.3.I.A-8, "Central Contractor Registration", certain contractors may qualify by limited exceptions to CCR waiver. If a contractor is determined by the Contracting Officer to merit justification of a waiver from CCR, then the contractor will provide initial payment information and any future vendor information changes to the Contracting Officer on the "Vendor Miscellaneous Payment Information" form, provided by the Contracting Officer. An alternate clause, "Contractor Payment Information-Non CCR" will be included in the contract and the District/vendor will comply with the terms of that clause. Having an exception from CCR does not excuse a vendor from EFT payment requirements, as required in the clause, "Payment by Electronic Fund Transfer- Real Property". (i) Offerors and Contractors may obtain information on registration and annual confirmation requirements via the internet at htlp://www.ccr.gov or by calling 1-888-227-2423, or 269-961- 5757. FAA Communications Lease—2009 Page 18 I CONTRACTOR IDENTIFICATION NUMBER- DATA UNIVERSAL NUMBERING SYSTEM (DUNS) NUMBER- REAL PROPERTY(OCT 2006) (a) Definitions. As used in this clause "Contractor Identification Number," as used in this provision, means "Data Universal Numbering > p g System (DUNS)number, which is a nine-digit number assigned by Dun and Bradstreet Information Services, to identify unique business entities (taken from CCR clause) "Data Universal NumberingSystem +4 DUNS+4 number" means the DUNS number assigned Y ( ) � by D&B plus a 4-character suffix that may be assigned by a business concern. (D&B has no affiliation with this 4-character suffix.) This 4-character suffix may be assigned at the discretion of the business concern to establish additional CCR records for identifying alternative Electronic Fund Transfer. (b) Contractor identification is essential for receiving payment and complying with statutory contract reporting requirements. Therefore, the offeror will provide its DUNS or DUNS+4 number below. The DUNS number will be used by the Contracting Officer to verify that the offeror is registered in the CCR database. DUNS OR DUNS+4 NUMBER: (c) If the offeror does not have a DUNS number, he should contact Dun and Bradstreet at 1- 866-705-5711, or via the internet at http://www.dnb.com directly to obtain one. Detailed requirements for obtaining a DUNS number is contained in Paragraph (c) of clause "Central Contractor Registration-Real Property". CERTIFICATION OF REGISTRATION IN CENTRAL CONTRACTOR REGISTRATION (CCR) (Oct-06) (a) In accordance with clause, "Central Contractor Registration-Real Property", and by submission of this offer, the offeror certifies that they are registered in the CCR Database and have entered all mandatory information including the DUNS or DUNS+4 Number required in clause, "Contractor Identification Number-Data Universal Numbering System (DUNS) Number- Real Property". (b) / Signature of Offeror /Date FAA Communications Lease—2009 Page 19 IF �� r • .ti j1� - _ Tod°.tJ� - � ♦t - Tower _�,� y • , �� - SM County Tower _ _1 • ,. ♦. 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