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HomeMy WebLinkAbout1990-046 RESOLUTION NO. 90-46 1 RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING THE 2 EXECUTION OF AN AGREEMENT WITH COMCAST CABLEVISION RELATING TO THE INSTALLATION OF MICROWAVE EQUIPMENT ON COMCAST CABLEVISION 3 LEASED PROPERTY. 4 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SECTION 1. The Mayor of the city of San Bernardino is hereby authorized and directed to execute on behalf of said city an agreement with COMCAST CABLEVISION relating to the lease of certain space to provide for installation of City-owned micro wave equipment, a copy of which is attached hereto, marked Exhibit "A" and incorporated herein by reference as fully as though set forth at length. SECTION 2. The authorization to execute the above referenced agreement is rescinded if the parties to the agreement fail to execute it within sixty (60) days of the passage of this resolution. SECTION 3. The city Administrator is authorized to execute renewals on behalf of the Lessee for a maximum of three renewals. I HEREBY CERTIFY that the foregoing resolution was duly adopted by the Mayor and Common Council of the City of San Bernardino at a reqular meeting thereof, held on the day of February ,1990, by the following vote, to 5th wit: AYES: Council Members Estrada. Reillv. Flores. Maudslev. Minor, Pope Ludlam. Miller NAYS: None ABSENT: None I/n?/y?/4'?, if';." ,C/. ,~...fi '"~~~ u, ,/ city Clerk 12/21/89 II ,----- , TOWER SPACE LEASE AGREEMENT 111 This Lease, dated this duLl day of '~d~~ ' 1910, is by and between the City of San Bernardino, an incor rated city or its lawful successors and assigns (hereinafter "Lessee") and Comcast Cablevision of San Bernardino, Inc., (hereinafter "Lessor"). R E C I TAL S Lessor owns and operates a tower (the "Tower") located in the site known as Blue Mountain, Grand Terrace, California, as more particularly described on Exhibit "A" attached hereto and incorporated herein by reference; and Lessor has a lease for the Blue Mountain site which expires on October 30, 1990; and Lessor desires to lease to Lessee and Lessee desires to lease from Lessor certain space on the Tower and in Lessor's building adjacent to said Tower (the "Building"). Therefore, in consideration of the covenants, agreements and other valuable consideration herein contained, Lessor and Lessee hereby agree as follows: 1. LEASED PREMISES. Subject to the terms and conditions set forth herein, Lessor hereby leases to Lessee, and Lessee hereby leases from Lessor the space on the Tower and in the Building described in Paragraphs A and B of this section 1, for the sole purpose of operating thereon a radio transmitter at:2, t ~ '<<Hz, /0 watts, and for no other purpose. A. Tower Space. Space to mount one (1) antenna, at the 8 foot level on the Tower. B. Buildinq Floor Space. Not more than six (6) square feet of floor space in the Building as designated by Lessor to house Lessee's radio equipment (the "Building Space") (said Tower Space and Building Space being hereinafter collectively referred to as the "Premises" and more fully described in Exhibit "A" hereto). 2. LIMITATION OF USE. This Lease covers a single service occupancy of the Premises and secondary, auxiliary or other use of the Premises is strictly prohibited. 1 , 3. TERM; RENEWAL TERM. A. Initial Term. The initial term of this Lease shall be for the term of the lease of Blue Mountain site commencing on the date hereof (the "Commencement Date") and terminating on the date the Blue Mountain site lease terminates. B. Renewal Term. Thereafter, Lessee shall have the option of entering into negotiations of a new lease agreement regarding the Premises on substantially the same, but not necessarily identical, terms as set forth herein (the "Renewal Terms"). Lessee shall notify Lessor in writing not later than ninety (90) days prior to the Expiration Date of the Initial Term of its desire to enter into negotiations regarding a renewal hereof. 4. RENT. Lessee shall pay to Lessor during the Initial Term hereof, in advance, the monthly rent set forth below (the "Base Monthly Rent"). Lessee's obligation to pay the Base Monthly Rent shall commence on the earlier of the following: (i) the date of installation of Lessee's equipment on the Premises; or (ii) three (3) months after the Commencement Date. Base Monthly Rent. The Base Monthly Rent for the Premises for the Initial Term shall be $50.00, to be paid annually in advance. 5. RIGHTS RESERVED TO LESSOR AND LESSEE. A. Lessor reserves the right to use for its own purposes all portions of the Tower not herein leased, and the right to lease such space to others. B. The lease of the Premises hereunder shall be subject and subordinate to the requirements of Lessor and its use thereof, including but not limited to the terms and conditions of the underlying lease agreement for the Blue Mountain site. If Lessor's business operations, in Lessor's sole judgment, necessitate the dismantling of the Tower or preemption of Building Space or to otherwise discontinue the use of the Premises, Lessor shall have the absolute right to terminate this Lease with the provision of thirty (30) days notice thereof to Lessee. In the event of termination hereunder, and except as otherwise provided for herein, neither party shall suffer any further obligation or liability under this Lease, and Lessee 2 shall be entitled to a refund of any rent paid in advance. C. If the site becomes unfit or undesirable for use for Lessee's purpose, Lessee may terminate this Lease by written notice to Lessor thirty (30) days prior to the effective date of said termination. In such event, Lessee shall be entitled to a refund of any rent paid in advance. 6. ACCESS, INSTALLATION, MAINTENANCE AND REPAIRS. A. Lessor hereby grants to Lessee access to the Premises and the Property of which the Premises form a part, to the extent Lessor can lawfully grant such access, for the purpose of installation of radio transmission facilities. All equipment or other property brought onto the Premises by Lessee shall at all times remain the personal property of Lessee. All engineering, installation and repairs, modification, and work performed to accommodate and to repair Lessee's equipment shall be performed in a good and workmanlike manner, and shall be performed only by properly licensed, and otherwise fully qualified personnel with Lessor's prior approval of plans and contractors. In the event Lessor allows Lessee to utilize the services or material of Lessor, Lessee shall pay Lessor reasonable charges for labor and material used in connection therewith. All maintenance work shall be performed by Lessor and Lessee shall pay Lessor at the rate of $20/hr. for labor plus material used therewith. All repairs and maintenance must be agreed upon by both parties, with signal quality meeting minimum FCC requirements. B. Lessee shall pay all costs and expenses of mounting its antenna on the Tower and installing, operating and maintaining its radio equipment in the Building. Lessee shall also pay any expense or cost to strengthen and addi tionally support Lessor's Tower which is necessitated by the mounting of Lessee's antenna thereon, as may be determined by Lessor at its sole discretion, provided such expenses are agreed to by both parties before construction begins. C. In the event the installation, maintenance and operation of Lessee's equipment on the Premises causes objectionable interference to be received by equipment of Lessor, or other authorized users of the Premises, Lessee shall immediately make every effort to eliminate such interference. In the event that such interference is not satisfactorily eliminated, in Lessor's sole 3 1- judgment, Lessee shall immediately cease the continued operation of its equipment hereunder and this Lease shall terminate without further obligation of either party to the other, and Lessee shall remove its equipment pursuant to Section 13 hereof and Lessee shall be entitled to a refund of any sums paid in advance. D. Lessor may in its sole discretion determine the necessity of repairs to modifications or construction placed on any facility by Lessee for its benefit, and in the event Lessee shall fail within thirty (30) days after receipt of written notice to make such repairs as Lessor reasonably deems necessary, Lessor, at its election, may terminate, upon thirty (30) days, this Lease. Lessor shall have the right to make emergency repairs if such repairs are necessary for the safety of its property. Lessee will promptly reimburse the Lessor at the rate specified in section 6A herein for the cost and expense of all such emergency repairs. Lessor shall maintain the Premises, other than Lessee's improvements, in good and tenable condition and repair. E. All equipment of Lessee shall be designed, constructed, installed, maintained and operated in compliance with all applicable rules and regulations of the Federal Communications Commission (the "FCC"), the Federal Aviation Administration (the "FAA") and other applicable governmental construction and electrical codes, and good engineering practices. CONSTRUCTION PERMITS COMPLIANCE WITH LAWS. AND LICENSES; MECHANICS LIENS; 7. A. Construction Permits and Licenses. Lessee shall provide Lessor with a copy of all applications filed with the FCC for construction permits and licenses of the radio facilities to be located on the Premises. Copies of all amendments and renewals to said construction permits and licenses filed during the term of this Lease shall also be delivered to Lessor at the time they are filed with the FCC, the FAA, or other applicable governmental agency. No FAA filings, or any amendments thereto, relative to the Premises are to be prepared by Lessee without the prior review and consent of Lessor. B. Mechanics Liens. Lessor shall not be liable for any labor or materials furnished or to be furnished to Lessee upon credit. Lessee agrees that no lien for any such labor or materials shall attach to or affect the Premises or any part thereof, or to any of the improvements or 4 appurtenances thereon. Whenever and as often as any mechanics I, materialmens I, contractors I or any other lien is filed against the Premises, or any part thereof, for labor or materials furnished or to be furnished to Lessee, Lessee shall promptly take such action by bonding, deposit, or payment as will discharge or satisfy such lien. Lessee shall send a copy of any notice of mechanics lien with which it is served by Lessor by registered or certified mail within three (3) business days of service. If Lessee fails to take curative action within thirty (30) days after receipt of written notice from Lessor demanding such action, then in addition to any other right or remedy of Lessor, Lessor may, at its option, discharge the same either by payment of the amount claimed or by procuring the discharge of such lien by deposit in court or giving of authority or in such manner as may be prescribed by law or declare Lessee in default under this Lease. Any amount paid by Lessor to discharge any such lien, including all necessary disbursements, expenses and reasonable legal fees, shall be repaid by Lessee to Lessor on demand, and if unpaid, may be treated as additional rent. C. Compliance with Law and Insurance Requlations. From and after the Commencement Date, Lessee shall, at its own cost and expense, comply with all governmental laws, ordinances and regulations applicable to the Premises or the installation, operation or maintenance of Lessee's antenna or equipment thereon. 8. UTILITIES. Lessor shall pay all charges for electricity charged or attributable to the Premises, and all other charges for services or utilities of whatsoever kind or nature used in, upon or about the Premises during the Initial Term or any Renewal Term of this Lease. Any costs or expenses for extraordinary utility or other services required by Lessee at the Premises shall be at Lessee's sole cost and expense. 9. PERSONAL PROPERTY TAXES. Lessee shall be liable for and shall pay prior to delinquency all taxes and assessments of any kind or nature whatsoever, and penalties and interest thereon, if any, levied against Lessee's personal property or fixtures installed in and upon the Premises. If any of Lessee's personal property shall be assessed with Lessor's real property, Lessee shall pay to Lessor the taxes attributable to Lessee with ten (10) days after Lessee's receipt of a written statement from Lessor setting forth the taxes applicable to Lessor's property. Upon Lessor's request, Lessee shall furnish Lessor with satisfactory evidence of Lessee's payment of the personal property taxes provided for 5 in this Section. 10. INDEMNIFICATION. Lessor and Lessee agree to mutually indemnify and hold harmless the other, its affiliates, officers, directors and employees from all damages, claims or liabilities, including reasonable attorney's fees and costs and expense of legal action resulting from or related to: A. Any breach of any warranty, representation or agreement made in this Lease; B. Any wrongful or negligent conduct of the other arising from or related to any commission or omission hereunder; C. Any and all claims by third parties relating to any breach of any warranty, representation or agreement made in this Lease; and D. Any other acts or omissions hereunder whether or not authorized or contemplated by the terms of this Lease. Notwithstanding anything to the contrary contained herein, Lessee expressly understands and agrees that in no event shall any liability of Lessor of whatsoever nature pursuant to the terms of this Lease exceed the amount of insurance coverage pursuant to Section 11 hereof. 11. INSURANCE. Lessee shall have the obligation to obtain the insurance required hereunder. Lessee shall, as additional rent for the Premises, pay the cost of all insurance required hereunder. A. Liability Insurance. Lessee shall, at Lessee's expense obtain and keep in force during the terms of this Lease a policy of Combined Single Limit, Bodily Injury and Property Damage insurance insuring Lessor and Lessee against any liability arising out of the ownership, use, occupancy or maintenance of the Premises and all areas appurtenant thereto. Such insurance shall be a combined single limit policy in an amount not less than $1,000,000 per occurrence. The policy shall insure performance by Lessee of the indemnity provisions of this Paragraph 11. The limits of said insurance shall not, however, limit the liability of Lessee hereunder. B. Property Insurance. Lessee shall pay for any increase in the property insurance of Lessor covering the Property if said increase is caused by Lessee's acts, omissions, use or occupancy of the Premises. Lessee shall insure its fixtures and equipment installed in the Premises. 6 ., ' '. C. Worker's Compensation. Lessee shall also maintain worker's compensation insurance in compliance with applicable statutory requirements and as additionally may be required by Lessee's activities hereunder. D. Insurance Policies. Lessee shall deliver to Lessor copies of policies of such insurance or certificates evidencing the existence and amounts of such insurance with loss payable clauses as required by this Paragraph. No such policy shall be cancellable or subject to reduction of coverage or other modification except after thirty (30) days prior written notice to Lessor. Lessee shall, at least thirty (30) days prior to the expiration of such policies, furnish Lessor with renewals thereof, or Lessor may order such insurance and charge the cost thereof to Lessee, which amount shall be payable by Lessee upon demand. Lessee shall not do or permit to be done anything which shall invalidate the insurance policies referred to in this Paragraph. All policies of insurance shall name Lessor (and at Lessor's request, any additional parties designated by Lessor) as an additional insured. 12. CONDEMNATION OR OTHER TAKINGS. If for any reason beyond the reasonable control of Lessor, Lessor's Tower or Building are or ever become unavailable for use as herein contemplated, including the termination of any lease to which this Lease is subordinate, or the requirements of a duly authorized governmental body for Lessor to cease operations at the Property, or if the title to the Property shall be taken by condemnation, this Lease shall thereupon terminate with respect to such use. All compensation which may be awarded upon any condemnation shall belong to Lessor, but Lessee shall be entitled to claim against the condemnor for the taking of or damage to any Lessee's personal property. 13. REMOVAL OF LESSEE'S PROPERTY. Upon termination of this Lease for whatever reason, Lessee shall remove all of its installations from the Premises in such a manner as not to interfere with continuing use of the Tower or Building by other users thereof. Lessee shall, at its expense, repair any damage to tt.e Tower or Building, or both, caused by said removal. Any of Lessee's personal property not removed wi thin ten (10) days after the termination of this Lease shall be deemed abandoned. 7 .. 14. ASSIGNHENT AND SUBLETTING. This Lease or any right hereunder shall not be sublet or sublicensed by Lessee. This Lease shall not be assigned by Lessee without the prior written consent of Lessor, which consent shall not be unreasonably withheld. Subject to the foregoing, the terms and conditions of this Lease shall inure to the benefit of and be binding upon the parties and their respective successors and assigns. Notwithstanding anything to the contrary set forth herein, Lessor may assign this Lease Agreement to any entity controlling, controlled by, or under common ownership with Lessor, without the prior written consent of Lessee. 15. EVENTS OF DEFAULT; REMEDIES. A. Default by Lessee. In the event of any breach hereof by Lessee which: (1) shall not have been cured within five (5) days after receiving notice specifying such breach (or if such breach is not for the payment of money and Lessee shall not within twenty (20) days after receiving notice of such breach, have commenced and be diligently proceeding to cure said breach); or (2) if the leasehold estate hereby created shall be taken on execution or other process of law; or (3) if any assignment of Lessee's property shall be made for the benefit of creditors; or (4) if a trustee in bankruptcy or similar office shall be appointed to take charge of all or any substantial part of the property of the Lessee by a court of competent jurisdiction; then Lessor lawfully may immediately, or at any time thereafter, enter and repossess the Premises and expel Lessee and those claiming through or under Lessee and remove Lessee's effects, by any lawful means, without being deemed guilty of any manner of trespass, and without prejUdice to any remedies, legal or equitable, which might otherwise be used for arrears of rent or preceding breach of covenant, and upon such entry this Lease shall terminate. B. Default by Lessor. Lessor shall not be in default under this Lease unless Lessor fails to perform the obligation required of Lessor hereunder within a reasonable time, but in no event shall Lessor be deemed to be in default sooner than twenty (20) days after written notice by Lessee to Lessor specifying the nature of Lessor's failure to perform, provided, however, that if the nature of Lessor's obligation is such that more than twenty (20) days are required for performance, that Lessor shall not be in default if Lessor commences performance within such twenty (20) day period and thereafter diligently prosecutes the same to completion. In the event of a default by Lessor under this Lease which is not cured wi thin the time periods provided herein Lessee's sole remedy shall 8 " be to terminate this Lease upon thirty (30) days prior written notice to Lessor. 16. NO WAIVER. Failure or delay on the part of Lessee or Lessor to exercise any right, power or privilege hereunder shall not operate as a waiver thereof or a waiver of any other subsequent breach, right or remedy. 17. ENTIRE AGREEMENT. This Lease constitutes the entire agreement of the parties hereto and supersedes all prior offers, negotiations and agreements, written or verbal. No revision of this Lease shall be valid unless made in writing and signed by Lessee and Lessor. 18. SEVERABILITY. If any clause or provision of this Lease is held to be illegal or unenforceable under present or future laws effective during the term hereof, then and in that event, it is the intention of the parties hereto that the remainder of this Lease shall not be affected thereby; and it is also the intention of the parties to this Lease that in lieu of each clause or provision of this Lease that is held to be illegal, invalid or unenforceable, there shall be added as a part of this Lease a legal, valid and enforceable clause or provision as may be possible. 19. NOTICES. All notices, requests, correspondence related to this Lease deemed to be delivered three (3) certified mail: payments shall be in days after and other writing and being sent A. If to Lessor Comcast Cablevision 2090 North "D" Street San Bernardino, CA 92405 Attention: General Manager with a copy to: Comcast Cablevision 201 Eighth Street Seal Beach, CA 90740 Attention: Legal Counsel B. If to Lessee: Shauna Clark, City Clerk City of San Bernardino 300 North "D" Street San Bernardino, CA 92418 or to such other address as either party shall have specified in writing to the other party. 9 RE: ,AGREEMENT WI~H COMCAST CABLEVISION RELATNG TO ~HE INSTALLATION OF MICROWAVE EQUIPMENT ON COMCAST CABLEVISION LEASED 'PROPERTY ,. IN WITNESS THEREOF, the parties effective as written. this Agreement has been executed by of the date and year first above ATTEST: CITY OF SAN BERNARDINO Municipal Corporation of the State of Califor . ~/?dU~ 'Shauna Clark City Clerk LESSOR: Approved as to form and legal content: BY: J;)? vislon of San Bernard no, Inc. James W. Bequette, Regional Vice President JAMES F. PENMAN City Attorney BY: iJz~ ?f:_.,_~ () 10 ., EXHIBIT "A" TOWER SITE DESCRIPTION Nearest City, County, State: Grand Terrace, San Bernardino, CA Type of Tower: 4" Painted Steel Pipe Tower Height: 13' OHAGL: (Overall height above ground level) 13' Geographic Coordinates: Latitude: 340 1'57" Longitude: 1170 17'46" FAA File No. (to be provided) Legal Description of property on which Tower located: A portion of the Northeast 1/4 of the Northeast 1/4 of Section 4, Township 2 South, Range 4 West, San Bernardino Merdian, as per official plat thereof, more particularly described as follows. Commencing at the Northeast corner of said section; Thence, S 00 40' 54" E, along the East line of said section, a distance of 637.00 feet; Thence, S 890 19' 06", perpendicular to the East line of said section, a distance of 228.00 feet to the true point of beginning; Thence, N 870 56' DO" W, a distance of 82.00 feet; Thence, N 20 04' DO" E, a distance of 128.00 feet; Thence, S 870 56' 00" E, a distance of 82.00 feet; Thence, S 20 04' 00" W, a distance of 128.00 feet to the point of beginning. containing 0.24 acres and referred to as parcel No. 1 and; commencing at the Northeast corner of said section; Thence, S 00 40' 54" E, along East line of said section, a distance of 757.00 feet; Thence, S 890 19' 06" W, perpendicular to said East line, a distance of 318.00 feet to the true point of beginning; Thence continuing S 890 19' 06" W, a distance of 100.00 feet; Thence, N 00 40' 54" W, parallel to said East line, a distance of 75 feet; Thence, N 890 19' 06" East, perpendicular to said East line, a distance of 100.00 feet; Thence, S 00 40' 54" E, parallel to said East line, a distance of 75 feet to the true point of beginning. containing 0.17 acres and referred to as Parcel No.2. ,. EXHIBIT "A" TOWER SITE DESCRIPTION CONTINUED Sketch of Tower: -+ 0 W l!.!U /1/J-Ie /JAM ~' t 02't ELoc,I'<, Bu.',Ld,"'S I$,' CITY OF San Bernardino OFFICE OF THE CITY ADMINISTRATOR RISK MANAGEMENT DIVISION February 23, 1990 Dalila Fuentes AST CABLEVISION CORPORATION OF CALIFORNIA 201 Eight Street Seal Beach, California 90740 Gea Ms. Fuentes: T s letter is to confirm the general liability coverage for the City of San Bernardino in regard to the above referenced activity. City of San Bernardino Agreement to Install Microwave Comcast Cablevision Property Resolution 90-46 Equipment ~ are self insured for legal liability up to $1,000,000. A se ond $1,000,000 coverage is provided by the Big Independent . ies Excess Pool (BICEP). An excess policy number 4789-2398 issued by Insurance Company of the State of Pennsylvania in the amount of $8,000,000, brings coverage to the $10,000,000 level, where a $15,000,000 umbrella is added by BICEP to complete coverage to $25,000,000. iHs it relates to property insurance coverage, the City of San B rnardino maintains blanket coverage with premium based on .I.V. value of $59,280,151 with $5,000 deductible and D.I.C. overage for earthquake and flood with 5% deductible. Since the alue of the antenna and the microwave equipment is only $6,100 and in two locations, it falls within the self-insured level of coverage. The State of California has issued a Certificate of Consent to Self-Insure, effective January 1, 1979, number 6-0124-01-09000- CIT. Through our BICEP pool, we maintain excess Workers' 300 NORTH 0 STREET SAN BERNARDINO CALIFORNIA 92418-0001 714/384-5308 Compensation coverage, with a deductible of $500,000. If you have any questions, please do not hesitate to contact me. Sincerely, James E. Robbins Acting Director of Risk Management JR/sf cc: Dean Gray, Director of Telecommunications AGREEMENT WITH COMCAST CABLEVISION RELATING TQ THE INSTALLATION OF MICROWAVE: EQUIPMENT ON COMCAST CABLEVISION LEASED' PROPERTY. The <" ~~ day of foregoing Februdry resolution is hereb~;approved , 1990..--'J' / ' ~/7~;:;~/,-;; ,_ .,' W. . Hol omb,LMayor City of San Bernardino this Approved as to form and legal content: JAMES F. PENMAN City Attorney ~ By I A/'1.~'v>) /f / j / " _/ ) ? /,' 'r iI (__/"')I,'/'vl"--r::,-- 12/21/89 -2-