HomeMy Public PortalAbout20091116 - Resolution - Board of Directors (BOD) (3) Cover Sheet for Scanning by ECS
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Document Date: 11/16/2009
Document Type: Resolution
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Keywords(no more than 4): FAA Communications Site Lease
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Document No, 09-32
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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
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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
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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
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License Area
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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
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