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80-014b - Cable TV United Cable and De Anza College, Reso 5590Citrl of Curerti»o 10300 Torre Avenue Cupertino, California 95014 Telephone: (408) 252-4505 DEPARTMENT OF THE CITY CLERK June 16, 1981 Dean George Sloan De Anza College .Learning Center Cupertino, California 95014 CABLE TELEVISION AGREEMENT P.O. Box 580 Cupertino, California 95015 We are enclosing to you for your files a fully executed copy of the Agreement between United Cable Television of Cupertino, Inc., De.An:a College and City of Cupertino, along with a certified copy of Resolution No. 5590. Sincerel , DOROTHY CORNELIUS CITY CLERK CITY OF CUPERTINO DC/so encl. cc: Public Works City of Cuper°tiio 10300 Torre Avenue Cupertino, California 95014 Telephone: (408) 252-4505 DEPARTMENT OF THE CITY CLERK June 16, 1981 Attention: Mr. John Cribb United Cable Television 21680 Lomita Avenue Cupertino, California 95014 CABLE TELEVISION AGREEMENT P.O. Box 580 Cupertino, California 95015 We are enclosing to you for your files a fully executed copy of the Agreement between United Cable Television of Cupertino, Inc., De Anza College and City of Cupertino, along with a certified copy of Resolution No. 5590. Sincerel CITY CLERK DOROTHY CORNELIUS CITY OF CUPERTINO DC/so encl. cc: Public Works v RESOLUTION NO. 5590 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO AUTHORIZING EXECUTION OF AGREEMENT BETWEEN UNITED CABLE TELEVISION OF CUPERTINO, INC., DE ANZA COLLEGE AND CITY OF CUPERTINO PERTAINING TO PUBLIC ACCESS CHANNELS, PUBLIC ACCESS STUDIO, EDUCATIONAL CHANNELS AND INSTITUTIONAL NETWORK WHEREAS, there has been presented to the City Council an agreement per- taining to public access channels, public access studio, educational channel and institutional network, and the terms and conditions of 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 said agreement in behalf of the City of Cuper- tino. PASSED AND ADOPTED at a regular meeting of the City Council of the City of Cupertino this 6th day of April 1981 by the following vote: Vote Members of the City Council AYES: Gatto, Johnson, Plungy, Sparks, Rogers NOES: None ABSENT: None ABSTAIN: None APPROVED: /s/ Barbara A. Rogers Mayor, City of Cupertino ATTEST: /s/ Dorothy Cornelius City Clerk CABLE TELEVISION AGREEMENT BETWEEN FOOTHILL -DE ANZA COMMUNITY COLLEGE DISTRICT, UNITED CABLE, AND THE CITY OF CUPERTINO THIS AGREEMENT, made and entered into on this 6th day of April , 1981, by and among the CITY OF CUPERTINO, a municipal corporation of the State of California (hereinafter referred to as CITY), UNITED CABLE TELEVISION OF CUPERTINO, INC. (hereinafter referred to as UNITED), and the FOOTHILL -DE ANZA COMMUNITY COLLEGE DISTRICT (hereinafter referred to as DE ANZA COLLEGE). WITNESSETH WHEREAS, the City and United entered into a franchise agreement to con- struct, operate and maintain a community antenna television system on October 14, 1980; and 1\1 WHEREAS, Section 3.32 (operational standards) of said franchise agreement designates certain requirements in regard to public access channels, public access studio, educational channels and institutional network; and WHEREAS, the City, United and De Anza College have mutually agreed that it is in the best interest of the community to have De Anza College assume these obligations; NOW, THEREFORE, in consideration of the covenants and conditions herein contained, the parties hereto agree as follows: SECTION 1 DE ANZA COLLEGE AGREES: 1. To assume the responsibility for, and to faithfully perform, those 4 FA obligations originally undertaken by United in its franchise agreement with the City which relate to the operation and maintenance of public access channels, public access studio, educational channels, and the in- stitutional network in the community antenna television system. It is understood and agreed that the obligations with respect to the aforesaid portions of the community antenna television system are set forth in the following documents: (a) Application dated December 27, 1979 from United Cable Television Cor- poration to the City of Cupertino for the franchise; (b) Letter dated August 29, 1980, from United Cable Television Corporation to Mr. Robert Quinlan, City Manager, City of Cupertino; and (c) Chapter 6.28 of the Cupertino Municipal Code. In the event of any conflict between or among the provisions contained in the above listed documents, the more stringent standards shall be deemed controlling. 2. To supervise, maintain, conduct, and operate, in accordance with the best community antenna television industry practice, those activities of the community antenna television system which relate to the public access channels, public access studio, educational channels, and the institutional network. 3. To fund all television staff positions, at its own cost and expense, except for one local program coordinator position, and to assume responsibility for the management of an operating budget for the public access channels, public access studio, educational channels, and the institutional network. All positions related to the assumption of these franchise -related respon- sibilities will be De Anza staff positions. De Anza College agrees to pro- vide that level of staffing necessary to fulfill the requirements of the community antenna television system with respect to the public access channels and the public access studio. 5 C A. To provide information on how to subscribe to United in all materials related to public access and educational channels, including telecourse schedules sent to all Cupertino residences. United information will be available also at College information centers and booths on -campus as well as at off -campus sites such as banks, grocery stores, Vallco Mall and other shopping centers. 5. To provide to the extent De Anza College deems it compatible with the needs of the College and the regular conduct of College affairsz College typesetting, graphics and printing services to United Cable of Cupertino for any printed materials which contain information on the public access and/or educational channels. The cost of this service to United will be on the same non-profit basis as charged professional and educational -related groups not affiliated with De Anza College. 6. To provide 3,600 sq. ft. of land to United for all receiving and transmitting equipment as per the separate lease in Appendix A of this agreement. In addition, De Anza agrees to provide a maximum of one foot wide easement from the headend site for underground cable to the public access studio, Flint Center, Learning Center, and off -campus. The route of these easements as well as all utilities to the headend will be approved by De Anza College prior to construction. 7. To grant United twenty-four hour access to the headend located at De Anza. 8. To allow United to construct a tower with a maximum height of 100 ft. The proposed location of the headend at De Anza is shown on the attached Appendix A exhibits. 9. To indemnify and save harmless the City and United, their officers and their employees from and against any and all claims, demands, actions, suits, and proceedings by others, against all liability to others, including but 6 not limited to any liability for damages by reason of or arising out of any violation of proprietary or copyright interests, and against any loss, cost, expense and damages resulting therefrom, including reasonable attorney s fees, arising out of the supervision, operation, maintenance, and/or conduct of the public access channels, public access studio, educational channels, and the institutional network. SECTION II UNITED agrees as follows: 1. To provide all line maintenance and repair services outside the cablecasting studio building for the public access channels, educational channels, and institutional network. 2. To provide an opportunity to De Anza College's Program Coordinator to in- clude information on public access and educational programming in United's promotional literature, mailings, and schedule distributions. 3. To assist De Anza College in connecting educational and public access channels with community antenna television systems provided by Sunnyvale Cable, Tele- prompter of Santa Clara and Video Engineering of Saratoga, including the installation of underground and overhead cable to those companies whenever United's construction plans are along the same route. It is understood the De Anza College and/or the other cable companies will pay for any additional supplies or labor necessary to complete these connections. 4. To assign, to the extent it is technically possible and reasonably practical, to De Anza College one cable channel number which is the same as those available in the following channel systems: Sunnyvale Cable, Teleprompter of Santa Clara, and Video Engineering in Saratoga. 5. To install, maintain, repair, and/or replace all equipment required by the franchise 7 agreement according to the manufacturer's technical specifications required for proper operation. United shall not be required to maintain, repair, and/or t, replace at United's sole cost any equipment which malfunctions or fails due to neglect or abuse by De Anza or other access users. Whenever possible, a complete service manual will be acquired and kept for each piece of franchise equipment. De Anza College will lease franchise equipment from United for $1 (one dollar) per year during the duration of this agreement. 6. To permit De Anza College to use at no cost the television receiving tower and/or earth satellite stations for a low power UHF transmitting antenna and/or other College -related needs to the extent that such does not interfere with the receiving and transmitting operations of United. United shall have the right to sub -lease tower space to others for television transmitting and receiving devices provided such devices are not for the transmission of educational courses and/or materials in northern Santa Clara Valley for private or public agencies not affiliated with De Anza College. 7. To donate $240,938 to De Anza College before June 1, 1981, as a one-time payment for the assumption for a 14 year 5 and 1/2 month period for all the franchise requirements listed in Section I, Paragraph 1, and the headend lease in Appendix A of this agreement. B. To sell to De Anza College during the term of this agreement non -franchise tele- vision equipment at the same cost United would have to pay for this equipment on bid. 9. If De Anza fails for any reason to perform all or any part of this agreement, United shall immediately assume responsibility for performance of all franchise - related operations herewith transferred to De Anza, except for the operation of the educational channels. If De Anza fails for any reason to perform all or any part of this agree- ment, United shall have the right to continue to operate the headend and public access studio at De Anza for the remaining term of any lease agreement. In addition, De Anza shall refund to United an amount equal to the unexpended portion of the local program director's salary and social security benefits 8 through October 14, 1995 (based on the attached current value agreement for these items on May 1, 1981, listed in Appendix B of this agreement). 10. To indemnify and save harmless De Anza College, its officers, and employees from and against any and all claims, demands, actions, suits, and proceedings of any and every kind (including those brought because of an alleged violation of proprietary or copyright interests) and any and all judgments, expenses, and costs resulting therefrom (including reasonable attorney's fees) arising in any manner out of United"s use of any programming from the public access, educational and institutional channels. SECTION III THE CITY OF CUPERTINO AGREES: 1. To allow De Anza to assume the authority, responsibilities, and obligations of the franchise awarded to United as outlined in Section I, Paragraphs 1 and 2, of this agreement. 2. To indemnify and save harmless De Anza College, its officers and employees from and against any and all claims, demands, actions, suits, and pro- ceedings of any and every kind (including those brought because of an alleged violation of proprietary or copyright interests) and any and all judgments, expenses, and costs resulting therefrom (including reasonable attorney's fees) arising in any manner out of the City's use of any programming from the public access, educational and institutional channels. 0 3. That United shall proceed to render service to subscribers within ninety (90) days after the installation of the headend tower, provided, however, that the installation of the headend tower shall be pursued with reasonable diligence. 4. To permit De Anza College to select and approve new and replacement local origination/access franchise equipment. Any new and/or replacement equipment selected by De Anza shall be at the same value as the original equipment specified in the franchise. Such selection shall be subject to and conditioned upon the final approval of the City. 10 SECTION IV AGREI=NTS APPLICABLE TO DE ANZA COLLEGE,_UNITED, AND CITY OF =ERTINO 1. Each party to this Agreement shall observe and comply with all valid laws, ordinances, statutes, orders, and regulations now or hereafter made or issued respecting this Agreement by any federal, state, county, local or other govern -- mental agency or entity. 2. This Agreement shall be effective commencing May 1, 1981 and shall continue until October 14, 1995, unless sooner terminated by the occurrence of any event which causes termination of the franchise itself as specified in Chapter 6.28 of the Cupertino Municipal Code and the franchise agreement dated October 14, 1980 by United Cable Television of Cupertino, Inc., and the City of Cupertino. This Agreement shall be renewed for an additional period equal to the period, and for the duration, of any extension or renewal of the franchise granted by the City of Cupertino pursuant to Chapter 6.28 of the Cupertino Municipal Code; provided (1) De Anza College shall have fully and faithfully assumed the responsibility for the operation and maintenance of public access channels, a public access studio, educational channels, and the institutional network as specified in Section I, Paragraph 1 for the full term of this agreement as speci- fied above, (2) no written notice to cancel is served by De Anza College on United and the City, and (3) the renewal term of this agreement shall be subject to the same terms and conditions as are contained in this agreement, but United shall pay an additional sum to De Anza College that will fairly compensate the college for assuming all of the franchise requirements specified in Section I, Paragraph 1, for the term of the renewal, such additional amount to be determined by agreement of the parties. 11 3. The channel frequencies assigned to public access, educational, and institu- tional network channels will be licensed to and the property of United as per FCC regulations. 4. The City of Cupertino, United, and De Anza College shall have the right to duplicate that programming from public access, educational and institutional network channels for which there is no exclusive distribution rights or copyright ownership. If such duplicated programming is subject to exclusive distribution rights and/or copyright ownership, use by the City or United shall result in a waiver of the rights granted under Section I, Paragraph 9 of this Agreement. 5. Nothing contained herein shall be construed as a novation of the franchise agreement dated October 14, 1980 entered into by the City of Cupertino and United Cable Television of Cupertino, Inc. Nothing contained herein shall be construed as a modification of the terms of the franchise granted to United Cable Television of Cupertino, Inc. on September 15, 1980. 6. The parties hereto acknowledge and agree that the assumption by De Anza of the franchise -related obligations herewith transferred shall not relieve United from United's duty to perform those obligations in the event De Anza fails for any reason to satisfactorily perform those obligations. 7. No provision contained herein shall constitute a waiver of or bar to the exercise of any governmental right or power of the City of Cupertino. 12 I 8. Any notice, request, demand or other communication shall be deemed to be properly given when deposited in the United States mail, postage prepaid, or when deposited with a public telegraph company for transmittal, charges prepaid, addressed as follows: Vice President, Western Region United Cable Television of Cupertino, Inc. United Cable Television Corporation 21680 Lomita Avenue 4700 S. Syracuse Parkway Cupertino, CA 95014 Denver, CO 80237 President De Anza College 21250 Stevens Creek Blvd. Cupertino, CA 95014 City of Cupertino 10300 Torre Avenue Cupertino, CA 95014 Foothill -De Anza Community College District 12345 E1 Monte Road Los Altos Hills, CA 94022 9. The illegality of any particular provision of this Agreement shall not affect the other provisions thereof, but the Agreement shall be construed in all respects as if such invalid provisions were omitted. 10. If suit be brought on this Agreement, the prevailing party or parties shall be entitled to reasonable attorneys fees as well as costs of suit therein incurred. 11. This Agreement may not be assigned or in any way transferred, in whole or in part, without the prior written consent of the parties hereto, which consent shall not be unreasonably withheld. 13 Appendix A LEAST. AGREEMENT ( THIS AGREEMENT, made aad entered into this day of , 1981, by and between the FOOTHILL -DE ANZA COMMUNITY COLLEGE DISTRICT, a public community college district of the State of California (he-reinafter referred to as "Lessor"), and UNITED CABLE TELEVISION OF CUPERTINO, INC., a California corporation (hereinafter re•fer-red. to as "Lesse-eff') . WHEREAS, , Lessor is, the owner and entitled to possession or that certain real property situated in the City of Cupertino, County of Santa Clara, State of: California, and more particularly describer) in Exhibit "11" 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 hereinbelow; 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 agreements shall be fully kept and performed by the Lessee, does hereby lease unto Lessee, for the purpose of construct- ing and operating a cable television head end and antenna facility, more particularly described in Section 14 herein, and for no other purpose, that real property situated in the City of Cupertino, County �. of Santa Clara, State of California, and more particularly described n Exhibit "1" attached hereto and incorporated herein by reference. 14 E 2. Term of Lease: A_ Except as provided herein to the contrary, the term of said Lease shall be for the same period and duration as provided in Ordinance No. 930, Section 6.28-050,,which Ordinance establishes and grants" unto Lesseet herein, a non—exclusive franchise to bperate a cable television franchise system within the City of Cupertino until October 14, 1g95_ B._ 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 opertaion of law; or (2) Lessor and Lessee. shall, notwithstanding- the status of the above mentioned franchise, mutually agree, in writing, to terminate said Lease. C. Lessor and Lessee shall each forthwith commence and thereafter pursue with reasonable diligence any and all things required to be doneby each of them respectively to cause the Lessee to obtain any and all approvals and/or permits otherwise required for the proposed use of the premises and/or construction of any improvements on said premises. Notwithstanding any other provision of this Lease, should Lessee be unable to obtain all approvals and/or permits, including but not limited to those consents specified in Section 9 herein otherwise necessary for the proposed use of the premises and/or construction of improvements on said premises, this Lease shall terminate. D. The term of this Lease shall renew for an additional period equal to the period, and for the duration, of any extension or renewal ,f the franchise granted by the City Council of the City of Cupertino pursuant to Chapter 6.28 of"the Cupertino Municipal Code, provided: 15 (1) Lessee shall have fully and faithfully performed all the terms, covenants, and conditions of this Lease for the full term specified f is Section 2A of this Lease; (2) no written notice to cancel is served by Lesse-e on Lessor; and (3) the renewed term of this Lease shall be subject to the same terms and conditions as are contained in this Lease but at such rental as will reflect any increase in the value of said premises since the date of this Lease determined by agreement of the Parties. C 3. Basic Rent: Lessee agrees to pay to Lessor a rental in the amount of $14-5,576.00 (included in total amount of $240,938.00 paid to De Anza College under terms of Section II, Part 7 of this agreement). Said rent shall be payable before June 1, 1981, and shall be for the use and occupancy of said premises May 1, 1981 through t October 14, 1995. h. No Assignment Without Lessor's Consent: A. Except as provided in Subsection B of this Section 4, 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 je deemed to be a consent to any subsequent assignment of this Lease by Lessee. 16 Ci The consent of Lessor to any assignment of Lessee's interest in this pease, however, shall not be unreasonably withheld. B. Notwithstanding the provisions of Subsection A of this Section 4, 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. 5. 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 f. 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 t. 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 f any way connected with said premises or with any improvements or personal property on said premises; (2) some condition of 17 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. B. Notwithstanding the provisions of Subsection A of this Section 5, 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. 6. 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, t 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. 7. 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 C loss or liability caused by or connected with Lessee's occupation and use of said premises under this Lease in amounts not less than: $2,500,000.00 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 that $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 7 of this Lease 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 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 f: 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 (10%) per annum until paid. 19 g, Haintenance 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 _ir, Code of the State of California and all rights provided for by Section 1941 of said Civil Code. 9. Requirements of Governmental Agencies: A. At all times during the term of this lease, Lessee, at Lessee's own cost and expense, shall: (1) Make 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; (2) Observe and comply with all valid laws, ordinances, �r statutes, orders, and regulations now or hereafter made or issued respecting said premises or the improvements or facilities on _ 20 said premises by any federal, state, county, local or other govern- mental agency or entity, including 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 President of De Anza College and appropriate State and/or local officials prior -to the commencement of construction ,f 7f 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 requirement that, prior to the commence- ment 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 on the De Anza College campus. 10. Fence and Security: A. Lessee shall, at its own cost and expense, cause a C 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 Cthe De Anza College Director of Plant Services, at such time as the construction of said fence and gate .shall -be completed. t 21 B. Lessee hereby acknowledges that De Anza College is not obligated to provide, nor will said entity provide, police or other security protection of any nature or degree. 11. Utilities: Lessee shall be responsible for the installation and costs of said ins.tallation'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 nTaintenance thereof.. N 12. 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 L4, 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 C _ 22 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. 13. Disposition of Improvements Upon Termination of Lease: On expiration or sooner termination of this lease, Lessee sha.11 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. The tower and earth stations and related equipment in- stalled on said premises shall be removed by Lessee, its successors E� or qssigns, at its own expense. The fence and building, less its contents, constructed by the Lessee, on the leased premises, shall revert and become the property of Lessor. Lessee shall have the right of abandonment on any of its facilities located underground. 14. Permissible Use of Premises: Lessee shall use said premises for locating, maintain- ing and operating a headend tower, two to three earth stations, and a portable building, approximately 18' 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. 23 15. Fire Insurance: A_ Lessee shall, at Lessee's own cos.t 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 cor�pany acceptable to Lessor against loss or destruction by fire and the perils, including- vandalism and malicious mischief, commonly f 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 9 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 16 of this lease. B. Each policy of insurance procured by Lessee pursuant to Subsection A of this Section 15 shall expressly provide that it cannot be cancelled for any reason or altered in any manner C unless ten days' prior written notice has been given to Lessor in the manner specified in this lease for service of noti.ces on Lessor by Lessee. C. Promptly on issuance, reissuance or renewal of any insurance policy required by this lease, including fire and. k 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. C 24 E 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 15 , 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 10 percent per annum until paid. 16. Lessee's uuty to ttestore rrerises: 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 25 C l 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 res-tora-tion shall be done in accordance with the requi-rements for construction work on said premises a.s set forth in Section g of this. lease. a. 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. 16 . 17. 'Taxes disci isiessifierits. 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 improvements and other property thereon. 26 C 18. Miscellaneous: A, All notices required by law, or by this Lease, to i r 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 t 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. 27 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 f: be put by Lessee, and will faithfully observe in the use of the premise's 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 attorney's fee which shall be fixed by the court as part of the costs of such suit. Upon the filing of any action 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 te:n&acy 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. J. Lessor hereby agrees not to construct any improvements on the premises ;mown as the De Anza College Campus on Stevens Creek Blvd., Cupertino, California, which would substantially interfere with the reception capability of the headend tower and earth stations of the Lessee. K. Lessor hereby grants Lessee the right, at Lessee's expense, to trim trees which will interfere with the reception capa- bility of the headend tower and earth stations of the Lessee. NC trees will be removed without prior written consent of Lessor. L. Lessee shall be given the first option to rent additional space adjacent to the headend site and not needed for use by De Anza College. Ef 29 51 EVENS UREEK BLVD. z54 H a P'a -r . I ot baA COULFE4 o M A, a 41414 p eo JA Er �'L;- i,' . Ur514 1=> 5!T�lam, , A160 MC-.? U 11, L3 DE MZA MIRE, CUPERT1110.1 CALIFORI.IA APPE]IDIX A.0 EARBI T 2 ftb,V I NO I 4 t DE ,'�JZA COLT a, CUPERTI►JO, C�LIFOR�JI� i ✓.i;� Yr i 32 APPE,@IX A, EXHIBIT 3 t 5 DE NO COU-EGE, aFERTINO, CUFORIIA 33 APPEMIX A, . EXHIBIT 4 Appendix B UNITED CONTRIBUTIONS IN 81-82 TO DE ANZA FOR TV AGREEMENT UNTIL 10/14/95 1. Local Program Director Salary $ 114,091 Z. Lease on 3,600 sq.. ft. of De Anza land 45,576 3. Local' Program Director Social Security 10,271 4. Pubd i c Access Studio Uti 1 i ti es 21,000 5. One-time construction cost savings of public access studio ($50/ft. x 1,000 sq. ft). 50,000 $ 240 , 938 34 This Agreement Executed on April 6 , 1981. APPROVED AS TO FORM: ATTEST: City Clerk CITY OF CUPERTINO By Mayor, City o Cupertino Executed on .7 7 1981. rnnTUTI I _nr LN17a rnmmiINTTV rni I rrG' Executed on g' 7�U 1981. UNITED CABLE TELEVISION OF CUPERTINO, INC. By 35 STATE OF COLORADO) ss. COUNTY OF DENVER) I, Connie Romal, a Notary Public in and for said state and county, duly commissioned and sworn, hereby certify that Virgil M. Reed, who is to me personally known, executed the foregoing instrument this 20th day of May, 1981. Ndtary Public My Commission Expires: J7/Ifl State of Av ,,I County of CC-/q-'Q 9 On this day of � 19 S7 , before me 4-4.1N0,,Q- tary Public,in and for s4id State, personally appeared known to me personally and acknowledged to me that 9r executed the same for the purposes therein stated. Witness my hand and official seal. OFFICIAL SE , E'NOr Li it A. SPELLMAN 111'—HIAL Q,d %A IN itie. COUNTY OF SANTA CLARA Comm. Exp. Oct. 21, 1981 paliacg 0:91100 11 ORD I 101130HU ULT'.'