07-017, Nathan Hall Tank House
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Tank House Use Agreement
This Agreement is executed by and between the City of Cupertino, a municipal
corporation, hereinafter called "City" and Rotary Club of Cupertino, hereinafter called
"Rotary."
Whereas, the City of Cupertino owns certain property located at the north-westerly comer of
Lot 6, Tract Number 6574, filed for record in the Office of the County Record of the County
of Santa Clara, on the 13th day of June, 1979, in Book 443 of Maps at Pages 34 and 35,
commonly known as the Nathan Hall Tank House Stevens Creek Blvd., Cupertino, California;
and,
Whereas, on this property is located a historical building, the Nathan Hall Tank House; and,
Whereas, over the years the Tank House has fallen into disrepair; and,
Whereas, the City would like to restore the Tank House as a historical site; and,
Whereas the Rotary Club of Cupertino has pledged a donation of $25,000.00 for the
restoration of the Tank House; and
Whereas, the Rotary Club is willing to pledge $10,000.00 additional monies and 100 hours of
labor on interior improvements in exchange for the exclusive use of the Tank House.
Now, therefore, fair consideration haven been given, the parties agree as follows:
I. DEMISED PREMISES City hereby leases to Rotary for the sum of One (1) dollar per year
Payable on the first business day of July of each year, the property located at the north-
westerly comer of Lot 6, Tract Number 6574, filed for record in the Office of the County
Record of the County of Santa Clara, on the 13th day of June, 1979, in Book 443 of Maps at
Pages 34 and 35, commonly known as the Nathan Hall Tank House as generally described
and delineated on Exhibit A attached hereto and referred to hereafter as the "Premises."
II. TERM The term of this Agreement shall be five years commencing on the date that
electric power is first available to the Tank House. This Agreement is renewable upon
mutually agreed terms negotiated between the parties in good faith.
III. PERMITTED USES The use of the Premises is restricted to storage, meetings and
Historical purposes. The Premises shall not be used for any other purpose without the written
permission ofthe Cupertino City Council.
IV. CONSTRUCTED IMPROVEMENTS It is anticipated that Rotary will construct
improvements on the Premises compatible with their permitted usage. Before any
construction, alteration or repair is commenced,
I. Rotary agrees to notify City in writing of their intention to commence such work.
All improvements shall comply with the City's applicable development standards and review
process, including review and approval of any permits required by the City.
2. All improvements shall comply with current building codes, ordinances, regulations
and requirements.
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3. Depending upon the building usage, all improvements may be required to be ADA
compliant.
It is also anticipated that the City or its agents or contractors will construct
improvements on the Premises. Rotary agrees to provide access to the Premises as necessary
for such improvements.
V. ACCESS City agrees to maintain all access roads and walkways from the nearest public
road to the Premises. Rotary agrees to maintain all walkways on the Premises. No parking lot
shall be constructed or maintained on the Premises.
VI. MAINTENANCE Rotary agrees to maintain the Tank House and the exterior Premises
in a safe and sanitary condition. Exterior maintenance includes any landscaping on the
Premises and maintaining grass and weeds in a fire safe condition.
VII. UTILITIES Rotary shall be responsible for the costs of all utilities and services on the
Premises. The City shall be responsible for connecting water and electric service to the Tank
House. Some utilities may be provided to the Tank House by donation as described in Exhibit
B and may, from time to time, be extended or extinguished. The City takes no responsibility
to provide any utility or service, initially donated and subsequently extinguished.
VIII. FURNISHINGS The Tank House is an unfurnished facility. Rotary agrees to provide
any furnishings necessary for their permitted uses. All furnishings so provided and not
attached to the Premises as fixtures, are the sole property of Rotary. At the expiration of this
Agreement and extensions thereto, all furnishings must be removed from the Premises unless
donated to the City and expressly accepted by the City Council.
IX. INSURANCE Rotary shall, at its own expense, maintain in full force and effect during
the term of this Agreement, and during any extension or hold over period, the following
insurance in amounts not less than the amounts specified, and issued by an insurance
company admitted in California and having a Best Guide Rating of A- Class VII or better.
I. Comprehensive public liability for personal injury and property damage coverage,
in an amount not less than One Million Dollars ($1,000,000.00) for anyone person injured or
killed, not less than Two Million Dollars ($2,000,000.00) per incident and not less than Two
Hundred Thousand Dollars ($200,000.00) property damage for each occurrence. The City
shall be named as additional insured in all policies for the Premises.
2. Rotary shall furnish the City Certificates of Insurance evidencing insurance
coverage set forth above, the name and policy number of each carrier, and that the policy will
not be cancelled or modified without thirty (30) days written notice to the City. Lack of
sufficient insurance shall be considered a breach of this Agreement.
3. City takes no responsibility for items and furnishings owned by Rotary. Insuring
such items for loss and destruction is solely the responsibility of Rotary.
X. INDEMNIFICATION Rotary shall indemnify, defend, and hold harmless City, its
employees, successors and assigns from and against any and all loss, cost, claim, liability,
action, damage, injury to or death of any person (hereinafter referred to as "Claims"),
including reasonable attorney's fees, occurring on the Premises and arising out of or
connected with the negligence or willful misconduct of Rotary, its members, agents or
contractors, except for Claims arising out of the negligence or willful misconduct of City, its
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agents or contractors, breach of any duty or obligation by City under this Agreement, or any
condition relating to the Premises which Rotary has no obligation to repair or maintain.
City shall indemnify, defend, and hold harmless Rotary, its members, employees,
successors and assigns from and against any and all loss, cost, claim, liability, action, damage,
injury to or death of any person (hereinafter referred to as "Claims"), including reasonable
attorney's fees, arising out of or connected with negligence or willful misconduct of City, its
agents or contractors, except for Claims arising out of the negligence or willful misconduct of
Rotary, its members, agents or contractors, violation of any law by Rotary, its members,
agents or contractors, breach of any duty or obligation by Rotary under this Agreement, or
any condition relating to the Premises which City has no obligation to repair or maintain.
XI. ASSIGNMENT The parties agree that the expertise and experience of Rotary are
material considerations inducing the City to enter into this Agreement. Rotary shall not
assign, sell, lease, merge, consolidate or transfer any interest in this Agreement, or the
performance of any of Rotary's obligations herein, without prior written consent of the City.
Any attempt by Rotary to so assign this Agreement or any rights, duties or obligations arising
herein shall be void and of no effect. The consent of the City will not be unreasonably
withheld.
XII. RECOGNITION The City shall install a sign near Stevens Creek Blvd. identifying the
site as "Nathan Hall Tank House, circa 1870, which will allow the attachment of small signs
recognizing the sponsorship of Rotary and other businesses and community groups that
participate in the restoration of the Tank House.
In addition, the City will install a Rotary recognition plaque on the building of
approximately 400 square inches.
XIII. ENTRY AND INSPECTION City reserves the right to enter the Premises for the
purpose of viewing and ascertaining the condition of same, or to protect its interests in the
Premises, or to inspect the operations conducted thereon. In the event that such entry or
inspection by City discloses that the Premises are not in a safe, healthy and sanitary condition,
City shall have the right, after thirty (30) days written notice to Rotary, to have any necessary
maintenance work done for and at the expense of Rotary and Rotary hereby agrees to pay
promptly and any all reasonable costs incurred by City in having such necessary maintenance
work done in order to keep the Premises in a safe, healthy and sanitary condition. Failure to
reimburse City for the reasonable costs incurred by City within thirty (30) days of completion
of said maintenance work shall constitute a breach of this Agreement.
XIV. HOLDING OVER This Agreement shall terminate without further notice at the
expiration of the term, if no further term has been negotiated. Any holding over by Rotary
after expiration of this Agreement shall be under the same terms of this Agreement, except
that the City Council shall determine a fair market rental value to be paid to City monthly, and
shall not constitute a renewal or extension or give Rotary any rights in or to the Premises
except otherwise expressly provided in this Agreement.
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XV. MISCELLANEOUS
1. Administration and Notices. City's agent for control and administration of this
Agreement shall be the Director of Community Development. Any communications relative
to this Agreement shall be directed as follows:
Director of Community Development
City of Cupertino
10300 Torre Avenue
Cupertino, CA 95014
Communication to Rotary shall be made as follows:
2. Waiver. The waiver by City of any term, covenant, or condition herein contained
shall not be deemed to be a waiver of such term, covenant or condition, or any subsequent
breach of the same or any other terms, covenant or condition herein contained. The
subsequent acceptance of rent hereunder by City shall not be deemed to be a waiver of any
preceding breach by Rotary of any term, covenant or condition of this Agreement, regardless
of City's knowledge of such preceding breach at the time of acceptance of such rent. Failure
on the part of City to require or exact full and complete compliance with any of the covenants,
conditions or agreements of this Agreement shall not be construed as in any manner changing
the terms hereof and shall not prevent City from enforcing any provision hereof.
3. Title. City warrants that it has full right, power, and authority to execute this
Agreement; City further warrants that Rotary shall have quiet enjoyment of the Premises
during the Term of this Agreement or any Renewal Term.
4. Captions. The captions of the various articles and paragraphs of this Agreement
are for convenience and ease of reference only and do not define, limit, augment, or describe
the scope, content, or intent of this Agreement or of any part of this Agreement.
5. Entire Agreement. This Agreement contains the entire agreement between the
parties. No promise, representation, warranty, or covenant not included in this Agreement has
been or is relied on by either party. Each party has relied on its own examination of this
Agreement, the counsel of its own advisors, and the warranties, representations, and
covenants in the Agreement itself. The failure or refusal of either party to inspect the
Premises, to read the Agreement or other documents, or to obtain legal or other advice
relevant to this transaction constitutes a waiver of any objection, contention, or claim that
might have been based on such reading, inspection, or advice.
6. Severability. The invalidity or illegality of any provision of this Agreement shall
not affect the remainder of the Agreement.
7. Successors. Subject to the provisions of this Agreement on assignment and
subletting, each and all of the covenants and conditions of this Agreement shall be binding on
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and shall inure to the benefit of the heirs, successors, executors, administrators, assigns,
sublessees, tenants, subtenants, and personal representatives of the respective parties.
IN WITNESS WHEREOF, this Agreement is executed by City, acting by and through
the Mayor, and by Rotary, acting by and through its lawfully authorized officers.
APPROVED AS TO FORM:
, (
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CITY OF CUPERTINO
BY '~bK.y
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and could prevent fraudulent removal and reattachment of this form to another document.
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Exhibit A