80-014a - Cable TV United Cable, Reso 5510RESOLUTION NO. 5510
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO
AUTHORIZING EXECUTION OF LEASE AGREEMENT BETWEEN THE CITY
AND UNITED CABLE TELEVISION OF CUPERTINO, INC.
WHEREAS, there has been presented to the City Council a Lease Agree-
ment between the City of Cupertino and United Cable Television of Cupertino,
Inc. for the lease of a portion of the City Corporation Yard property by
United Cable Television of Cupertino, Inc. for the installation of a headend
facility in conjunction with its franchise to serve Cupertino; and said
agreement having been approved by the Director of Public Works and the City
Attorney;
NOW, THEREFORE, BE IT RESOLVED, that the Mayor and the City Clerk are
hereby authorized to execute the agreement herein referred to in behalf
of the City of Cupertino. i'
PASSED AND ADOPTED at a regular meeting of the City Council of the
City of Cupertino this 15th day of December , 1980 by the following
vote:
Vote Members of the Citv Council
AYES: Gatto, Plungy, Sparks, Rogers
NOES: None
ABSENT: Johnson
ABSTAIN: None
APPROVED:
/s/ Barbara A. Rogers
Mayor, City of Cupertino
ATTEST:
/s/ Dorothy Cornelius
City Clerk
LEASE AGREEMENT
THIS AGREEMENT, made and entered into this day of
, 1980, by and between the CITY OF CUPERTINO, a
municipal corporation of the State of California (hereinafter referred
to as "Lessor"), and UNITED CABLE TELEVISION OF CUPERTINO, INC., a
California corporation (hereinafter referred to as "Lessee").
WHEREAS, Lessor is the owner and entitled to possession of
that certain real property situated in the City of Cupertino, County
of Santa Clara, State of California, and more particularly described
in Exhibit "A" attached hereto and incorporated herein.by reference; and
WHEREAS, Lessee is desirous of leasing said real property for
the purposes and pursuant to the terms, covenants and conditions set
forth hereinbelo.w;
NOW, THEREFORE, the parties hereto agree as follows:
1. Demise and Description of Property:
Lessor, in consideration of the rent, covenants and agreements
hereinafter contained, to be paid, kept and performed by the Lessee,
and upon the condition that each and all of the said covenants and agree-
ments shall be fully kept and performed by the Lessee, does hereby
lease unto Lessee, for the purpose of constructing and operating a
cable television head end and antenna facility, and for no other pur-
pose, that real property situated in the City of Cupertino, County of
Santa Clara, State of California, and more particularly described in
Exhibit "A" attached hereto and incorporated herein by reference.
2. Term of Lease:
Except as provided herein to the contrary, the term of said
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Lease shall be for the same period and duration as provided in Ordinance
No. 930, Section 6.2.8.050, which Ordinance establishes and grants
unto Lessee herein, a non-exclusive franchise to operate a cable tele-
vision franchise system within the City of Cupertino until October 14,
1995. Said Lease term may, however, sooner terminate, at the option
of Lessor, upon the happening of either of the two following events:
(1) the above mentioned franchise shall sooner terminate either by
agreement or by operation of law; or (2) Lessor and Lessee shall,
notwithstanding the status of the above mentioned franchise, mutually
agree, in writing, to terminate said Lease.
3. Basic Rent:
Lessee agrees to pay to Lessor an annual rental in
the amount of $3,300.00. Said rent shall be payable 105 days
after the day on which the Lessee's fiscal year expires. Lessee
shall notify Lessor in writing of its fiscal year end date
within sixty (60) days from the date hereof.
Should the term of this lease commence on a day other
than the first day of the Lessee's fiscal year, then upon the
commencement of said term, the Lessee shall pay to the Lessor
as the minimum rental for the fractional period of the year
beginning with said day of commencement and ending with the last
day of said fiscal year, that portion of said annual rental as
the number of days in the fractional period bears to three hundred
sixty-five (365).
Lessee shall pay the rent reserved to Lessor at the Office
of the City Clerk, City of Cupertino, P. 0. Box 580, Cupertino,
California 95015, or at such other place or places as may be
designated from time to time by the Lessor by written notice to
the Lessee, at the times and in the manner provided hereinabove.
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4. Rental Increase:
The annual rental described in Section 3 of this lease
shall be increased on the first anniversary of the commencement
date of this lease and on each successive anniversary of that
date thereafter, herein called the adjustment dates, at the rate
of eight percent (8%) per annum. A schedule of the projected
annual rental for each year of this lease is attached hereto as
Exhibit B ", and by this reference made a part hereof. The
annual rental as so increased on each of the adjustment dates
will be the rent payable by the Lessee to the Lessor, and agreed
to be paid by the Lessee to the Lessor, in annual installments
for the use and occupancy of said premises for the year follow-
ing the adjustment date and until again adjusted on the next
subsequent adjustment date.
5. No Assiqnment Without Lessor's Consent`.`
A. Except as provided in Subsection B of this Section
5, Lessee shall not assign or otherwise transfer this lease,
any right or interest in this lease, or any right or interest in
said premises or any of the improvements that may now or hereafter
be constructed or installed on said premises without the express
written consent of the Lessor first had and obtained. Any
assignment or transfer by the Lessee without the prior written
consent of the Lessor, whether it be voluntary or involuntary, by
operation of law or otherwise, is void and shall, at the option
of the Lessor, terminate this Lease. A consent by Lessor to one
assignment shall not be deemed to be a consent to any subsequent
assignment of this lease by Lessee. The consent of Lessor to
any assignment of Lessee's interest in this lease, however, shall
not be unreasonably withheld.
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B. Notwithstanding the provisions of Subsection A. of
this Section 5, the Lessee may without the prior written consent
of the Lessor transfer and assign all the Lessee's interest under
this lease and the leasehold estate hereby created in Lessee to
any trustee named in a Deed of Trust, any mortgagee named in a
mortgage, or any person named in any other type of security
instrument for the purpose of incurring an encumbrance on
such interest and such leasehold estate.
6. Hold Harmless:
A. Lessee shall indemnify and hold the Lessor and
the property of the Lessor, including said premises, free and
harmless from,any and all liability, claims, loss, damages, or
expenses, including attorneys' fees and costs, arising by
reason of the death or injury of any person, including Lessee
or any person who is an employee or agent of Lessee, or by reason
of damage to or destruction of any property, including property
owned by Lessee or any person who is an employee or agent of
Lessee, caused or allegedly caused by (1) any cause whatsoever
while such person or property is in or on said premises or in
any way connected with said premises or with any improvements
or personal property on said premises; -(2) some condition of
said premises or some building or improvement on said premises;
(3) some act or omission on said premises of Lessee or any person
in, on, or about said premises with the permission and consent
of Lessee; or (4) any matter connected with Lessee's occupation
and use of said premises.
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B. Notwithstanding the provisions of Subsection A.
of this Section , Lessee shall be under no duty to indemnify
and hold Lessor harmless from any liability, claims, or damages
arising because of any intentional or willful acts of Lessor
or any person who is an agent or employee of Lessor acting in the
course and scope of,their agency or employment.
7. Exoneration of Lessor:
Lessee hereby expressly waives all claims for damages
and agrees that Lessor shall not be liable for any damages or
injuries to Lessee's business, for any loss of income from
Lessee's business, for any damage or destruction of property
belonging to Lessee or on said premises with the consent of
Lessee, or for any injuries to Lessee or any person on said
premises with the consent of Lessee unless such damage, injury,
loss, or destruction directly results from.an intentional or
willful act of Lessor or some agent or employee of Lessor, acting
in the course and scope of their employment.
S. Liability Insurance:
A. Lessee shall, at Lessee's own cost and expense,
secure promptly after execution of this lease and maintain during
the entire term of this lease a broad form comprehensive coverage
policy of public liability insurance, issued by an insurance
company acceptable to Lessor insuring Lessee and Lessor against
loss or liability caused by or connected with Lessee's occupation
and use of said premises under this lease in amounts not less than:
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$01,500,000.00 for injury to or death of one person or for damage
to or destruction of any property of others, and subject to such
limitation for the injury to or death of one person, of not less
than $5,000,000.00 for injury to or death of two or more persons
as a result of any one accident or incident.
B.
Any policy
of insurance
procured by
Lessee
pursuant
to Subsection
B. of this
Section
of this lease
shall
expressly
provide that it connot be cancelled for any rea-son or altered
in any manner unless ten days' prior written notice has been
given by the insurance company issuring the policy to Lessor in
the manner specified in this lease for service of notices on
Lessor by Lessee.
C. -Promptly on issuance, reissuance, or renewal of
any insurance.policy required by this lease, including liability
insurance policies, Lessee shall cause a duplicate copy of the
policy or a certificate evidencing the policy and executed by
the insurance company issuing the policy or its authorized agent
to be given to Lessor.
D. Should Lessee at any time fail to procure or
maintain the insurance required by this Section, Lessor may
obtain such insurance and pay the premiums on such insurance
for the benefit of Lessee. Any amounts paid by Lessor to
procure or maintain insurance pursuant to this subsection shall
be immediately due and repayable to Lessor by Lessee together
with interest thereon at the rate of 10 percent per annum
until paid.
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9_. Maintenance by Lessee:
At all times during the term of this lease Lessee shall,
at Lessee's own cost and expense, keep and maintain said premises
and all improvements now or hereafter placed on said premises
as well as all facilities now or hereafter appurtenant to said
premises in good order and repair and in a safe and clean condition.
Furthermore, Lessee shall, at Lessee's own cost and expense,
maintain at all times during the term of this lease the whole of
said premises as well as any improvements, landscaping, or
facilities thereon in a clean, sanitary, neat, tidy, orderly,
and attractive condition, hereby waiving all right to make repairs
at the expense of Lessor as provided in Section 1942 of the Civil
Code of the State of California and all rights provided for by
Section 1941 of said Civil Code.
10. Requirements of Governmental Agencies:
A. At all times during the term of this lease, Lessee,
at Lessee's own cost and expense, shall:
(1) Mak'e all construction, alterations, additions, or
repairs to said premises or the improvements or facilities on said
premises required by any valid law, ordinance, statute, order, or
regulation now or thereafter made or issued by any federal, state,
county, local, or other governmental agency or entity, including
the. City of Cupertino;
(2) Observe and comply with all valid laws, ordinances,
statutes, orders, and regulations now or hereafter made or issued
respecting said premises or the improvements or facilities on
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said premises by any federal, state, county, local or other govern-
mental agency or entity, includi.ng the City of Cupertino; and
(3) Indemnify and hold Lessor and the property of Lessor,
including said premises, free and harmless from any and all liability,
loss, damages, fines, penalties, claims, and actions resulting
from the Lessee's failure to comply with and perform the require-
ments of this section.
B. Lessee hereby acknowledges and agrees that Sub-
sections A. (1) and A. (2) shall be interpreted to include the
requirement that any and all matters relating to the use, location
and construction of the facilities referred to in this lease shall
be approved by the Director of Public Works, the Director of Plan-
ning, Planning Commission, and/c>r- the City Council prior to the
commencement of construction of any such facilities on the leased
premises. Lessee further acknowledges and agrees that Subsections
A. (1) and A. (2) shall also be interpreted to include the require-
ment that, prior to the commencement of any such facilities and
prior to the use of the leased premises, the Lessee shall submit
all plans and obtain all permits and approvals otherwise required
for the construction of such improvements within the City of
Cupertino and for the proposed use of the premises within the City
of Cupertino.
11. Fence and Securitv:
A. Lessee shall, prior to the occupation of the leased
premises, and at its own cost and expense, cause a fence with
locking gate to be constructed around the leased premises. Said
fence and gate shall be identical in type and style to the
existing fence in and about and adjacent to said premises. Lessee
further agrees to deliver at least one key to said locking gate
to the Director of Public Works, City of Cupertino, at such time
as the construction of said fence and gate shall be completed.
B. Lessee hereby acknowledges that the City of Cupertino
is not obligated to provide, nor will said entity provide, police
or other security protection of any nature or degree, apart from
or different than that provided to other business enterprises
operating within the City of Cupertino.
C. Notwithstanding the provisions of Subsection B. of
this Section , Lessor shall provide, at its own cost and
expense, to Lessee a proportional benefit of the security protection
program currently implemented on the property commonly known
as Mary Avenue.
The leased premises are contained within said property.
However, Lessor is under no obligation to prov'-de to Lessee any
greater protection under said program than is arrently provided
to other occupants of the City of Cupertino y.a..d.
12. Utilities:
Lessee shall be responsible for the installation and
costs of said installation of any electrical, telephone, water
or other utility service required for the operation of the
facilities to be located on the leased premises and shall pay
all periodic charges for the maintenance thereof.
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13. Standby Electric Power:
Lessee, at its own cost and expense, may provide
emergency standby electrical power as provided for in the
Franchise Agreement dated October 14, 1980 and Chapter 6.28 of
the Cupertino Municipal Code. If Lessee elects to use a
generator, it shall conform to all provisions of Chapter 10.48
of the Cupertino Municipal Code relating to noise standards.
Lessee, as a material part of the consideration to
Lessor in entering into this lease, waives all claims for damages
to goods, wares, merchandise and equipment in, upon, or about
said premises, and for injuries to persons in or about said premises
from any.cause relating to the utilization of said standby capabil-
ity by Lessee. Lessee further agrees to hold Lessor exempt and
harmless for and on account of any damage or injury to any person
arising from the failure of Lessee to keep said utilization
facilities in good condition and repair, excepting any damage or
injuries due to the willfull or intentional act or some agent or
employee of Lessor acting in the course and scope of their employment.
14. Disposition of Improvements Upon Termination of Lease:
On expiration or sooner termination of this lease,
Lessee shall promptly surrender possession of said premises to
Lessor in as good condition as said premises are now on the date
of this lease, reasonable wear and tear and damage by the elements
or fire or any casualty beyond the control of Lessee excepted.
Any and all improvements installed or constructed by
the Lessee, its successors or assigns, on the leased premises, shall
revert and become the property of Lessor.
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15. Permissible Use of Premises:
Lessee shall use said premises for locating, maintain-
ing and operating an eighty foot (80') headend tower, two to
three earth stations, and a portable building, approximately
1.8' x 22' x 9' in size, which shall be used to house machinery
and equipment. Lessee shall not use said premises for any other
purpose without the written consent of Lessor, which consent shall
not be unreasonably withheld.
16. Fire Insurance:
A. Lessee shall, at Lessee's own cost and expense,
at all times during the full term of this lease, keep all
buildings, improvements, or other structures on said premises in-
sured for their full replacement cost by an insurance company
acceptable to Lessor against loss or destruction by fire and
the perils, including vandalism and malicious mischief, commonly
covered under the standard extended coverage endorsement in the
county where said premises are located. Any loss payable under
any such policy shall be paid by the insurance company to a
trustee such as a joint control agency selected by the insurance
company and used to fund the repair of the damaged building or
improvement pursuant to Section 17 of this lease.
B. Each policy of insurance procured by Lessee pursuant
to Subsection A of this Section shall expressly provide that
it cannot be cancelled for any reason or altered in any manner
unless ten days' prior written notice has been given to Lessor
in the manner specified in this lease for service of notices on
Lessor by Lessee.
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C. Promptly on issuance, reissuance or renewal of
any insurance policy required by this lease, including fire and
liability insurance policies, Lessee shall cause a duplicate copy
of the policy or a certificate evidencing the policy and executed
by the insurance company issuing the policy or its authorized
agent to be given to Lessor.
D. Should Lessee, at any time during the term of this
lease, have in full force and effect a "blanket" policy of
insurance insuring said premises as well as other property owned
or occupied by Lessee in the amounts and against loss or
destruction by the perils described in Subsection A of this
Section such blanket insurance policy shall be deemed to
meet and satisfy the requirements of this Section provided a copy
of the policy, or a certificate evidencing the policy, is delivered
to Lessor as required by Subsection C of this Section.
E. Should Lessee at any time fail to procure or
maintain the insurance required by this Section, Lessor may obtain
such insurance and pay the premiums on such insurance for the
benefit of Lessee. Any amounts paid by Lessor to procure or
maintain insurance pursuant to this subsection shall be immediately
due and repayable to Lessor by Lessee together with interest
thereon at the rate of percent per annum until paid.
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17. Lessee's Uuty to Restore Yrer•.ises:
A. Should, at any time during the term of this lease,
any buildings or improvements now or hereafter on said premises
be destroyed in whole or in part by fire, theft, the elements,
or any other cause not the fault of Lessor, this lease shall
continue in full force and effect and Lessee, at Lessee's own
cost and expense, shall repair and restore the damaged or
destroyed building, buildings, improvement or improvements
according to the original plan thereof or according to such
modified plans thereof as shall be approved in writing by the
Lessor. The work of repair and restoration shall be commenced
by Lessee within ten days after the damage or destruction occurs
and shall be completed with due diligence not longer than two
months after the work is commenced. In all other respects, the
work of repair and restoration shall be done in accordance with
the requirements for construction work on said premises as set
forth in Section of this lease.
B. Any and all fire or other insurance proceeds that
become payable at any time during the term of this lease because
of damage to or destruction of any buildings or improvements on
said premises shall be paid to Lessee and applied by Lessee toward
the cost of repairing and restoring the damaged or destroyed
buildings or improvements in the manner required by Subsection A
of this Section
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18 . Taxes ancz r�55essi«ants .
In addition to the abovementioned payment of rent,
Lessee shall pay and discharge all taxes, general and special
assessments, and other charges of every description which,
during the term of this lease, may be levied upon or assessed
against the leased property and all interests therein and all
improvem2n.ts and other property thereon.
19. Entry after Premises Closed:
Any person entering or leaving the premises known
as the City of Cupertino Yard at,10555 Mary Avenue
at any time other than during regular business hours may be
questioned as to his or her business by the watchman or security
guard in charge of the premises and required to sign any premises
register by the watchman or security guard. Any person not
satisfying the watchman or security guard that he or she has
the right to enter the premises may be excluded from the premises
by the watchman or security guard.
20. Bonds:
Lessee shall, at its own cost and expense, bond each
and every employee and agent of the Lessee who uses, operates
or maintains the leased premises in any manner which requires
that said employee or agent be physically present on the leased
premises. Each such employee or agent shall be bonded in the
amount of $ Said bond shall be provided by a
bonding company approved by the Lessor. Satisfactory evidence
of such bond or bonds shall be provided by -the Lessee to the
Lessor.
21. Miscellaneous:
a. All notices required by law, or by this Lease, to
be given to the Lessee may be given personally or by depositing
the same in the United States mail, postage prepaid, and ad-
dressed to the Lessee at the said premises.
b. The filing of any petition in bankruptcy or insolvency
by or against Lessee, including a petition under Chapters X, XI,
or XII of the Bankruptcy Act shall be deemed to constitute a
breach of this Lease, and thereupon, ipso facto, and without
entry or other action by the Lessor, this Lease shall become and
be terminated, and the Lessor shall forthwith be entitled to re-
cover damages for the breach so occasioned in an amount equal to
the amount of the rent reserved in this Lease for the residue
of the term thereof, less the fair rental value of the premises
for the residue of said term and in any event nor less that the
full amount allowable under Section 63 (a) of the Bankruptcy
Act or as may be provided by the provisions of Chapters X, XI,
XII of the Bankruptcy Act, should the proceedings be under any of
said provisions.
C. The waiver by Lessor of any breach of any term covenant
or condition herein contained shall not be deemed to be a waiver
of such term, covenant or condition, or of any subsequent breach
of the same or any other term, covenant or condition herein
contained.
d. In the event of a partial or total destruction of
the said premises during the said term, from any cause, Lessor shall
not be obligated to repair the same or to contribute any sums for
said repair.
e. In the event Lessor, for any reason whatsoever,
cannot deliver possession of the said premises to the Lessee at
the commencement of the said term as hereinbefore specified, this
Lease shall not be void or voidable, nor shall the Lessor be
liable to the Lessee for any loss or damage resulting therefrom;
but in that event there shall be a proportionate deduction of
rent covering the period between the commencement of the said
term and the time when the Lessor can deliver possession.
f. Lessee will, at its sole cost and expense, comply
with all of the requirements of all Municipal, County, State and
Federal authorities now in force, or which may hereafter be in
force, pertaining to the said premises, occasioned by or affecting
the use to which said premises have been, are being, or are to
be put by Lessee, and will faithfully observe in the use of the
premises all Municipal and County ordinances and State and Federal
statutes now in force or which may hereafter be in force. The
judgment of any court of competent jurisdiction, and all records
and admissions in any action or proceeding against Lessee may
be admissible to establish the violation by Lessee of any such
ordinance or statute as conclusive evidence of such violation.
g. In the event suit shall be brought for an unlawful
detainer of said premises or for the recovery of any rent due
under the provisions hereof, or because of the breach of any
other covenant herein contained on the part of the Lessee to be
kept or performed, or for declaratory relief to determine the
rights of the parties hereunder, Lessee will pay to Lessor a
reasonable attorneys fee which shall be fixed by the court as
part of the costs of such suit. Upon the filing of any action
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for unlawful detainer the court_ in which said action is pending
may appoint a receiver without notice to take possession of the
said premises and collect any rent that may be or become due
from any subtenant and to hold the same during the pendency of
said action.
h. Any holding over after the expiration of the said
tenancy with the consent of the Lessor, shall be construed to
be a tenancy from month to month, and shall otherwise, be on the
terms and conditions herein specified, so far as applicable.
i. The covenants and conditions herein contained
shall, subject to the provisions�as to assignment, apply to and
bind the heirs, executors,administrators, successors and
assigns;of the parties hereto.
CITY OF CUPERTINO
By
Mayor
91
ty Clerk
Approved as to form: LESSEE:
City Attorney
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STATE OF CALIFORNIA )
ss.
COUNTY OF SANTA CLARA)
On 19 , before me, the undersigned, a
Notary Public in and for said State, personally appeared
known to me to be the persons whose names are subscribed to the within
Instrument, and acknowledged to me that they executed the same.
14ITNESS my hand and official seal.
Notary Public in and for the County
of Santa Clara, State of California
---------------------------------------------------------------------------
CORPORATION ACKNOWLEDGEMENT
STATE OF CALIFORNIA )
) ss.
COUNTY OF SANTA CLARA)
On , 19 , before me, the undersigned, a
Notary Public in and for the said State, personally appeared
known to me
to be the of the
corporation that executed the within Instrument, known to me to be the person
who executed the within Instrument, on behalf of the Corporation herein named,
and acknowledged to me that such Corporation executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal in the County of Santa Clara the day and year in this certificate first
above written.
Notary Public in and for the County
of Santa Clara, State of California
-- VAGAAIT GAM-rl.►
4"
► .w
4.4
► M
--- - - ---c40+r0►^Mwr»
CORPORATION YARD - CITY OF CUPERTINO --.
"EXHIBIT A, PAGE 1"
N
60,
"EXHIBIT A, PAGE 2"
"EXHIBIT B"
1980 -
$ 3,300.00
1981 -
3,564.00
1982 -
3,852.00
1983 -
4,152.00
1984 -
4,488.00
1985 -
4,848.00 „
1986 -
5,232.00
1987
5,652.00
1988 -
6,108.00
1989 -
6,600.00
1990 -
7,128.00
1991 -
7,692.00
1992 -
8,304.00
1993 -
8,976.00
1994 -
9,696.00
1995 -
10,476.00