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· CITY OF SAN BERN. _ilDIN~REQUEST ......R COUNCIL ACTION
From: Dean Gray, Director of Telecommunications Subject: Approval of agreement for installment
of City-owned microwave equipment
Dept: ADMIN/TELECOMMUNICATIONS on property leased by Comcast
Cablevision
Date: December 21, 1989
Synopsis of Previous Council action:
None
Recommended motion:
Adopt Resolution
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Signature
Contact person: Dean Gray
Phone: 384-5147
Supporting data attached: Yes
Ward:
N/A
FUNDING REQUIREMENTS:
Amount: $500.00($50/month January l-oct. 30, 1990)
Source: (Acct. No,) 107-105-53010
(Acct. Description) Land an.d Building ~nt~ ___ A'
Fmance: ~_
Council Notes:
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CITY OF SAN BERN. ,-1DINO - REQUEST F~R COUNCIL ACTION
STAFF REPORT
The resolution enables the City of San Bernardino to install
microwave equipment on property leased by Comcast Cablevision.
This microwave link will allow for Cal State, Los Angeles and
Cal Poly educational programming to be cablecast on the City's
Community Access Channel.
The original intention of establishing a link was to provide
educational programs for the City's Fire Department staff. Both
of the above-mentioned institutions offer a B.S. in Fire
Protection with course offerings such as "Fire Defense Planning,"
"Fire Protection Systems Design," and "Urban Government and
Politics."
Since the City will be managing a second access channel in mid
1990, additional educational coursework could be available over
the same system, providing a greater diversity of programs to
City residents. Course titles for the winter term include the
following: "Computer Graphics for Instructional Presentations,"
"Foundations of Vocational Education," "Health Studies on
Alcohol, Narcotics, Nutrition and Tobacco."
Staff has contacted both institutions, which have agreed to
provide educational programming, and as appropriate enroll
students for credit, thereby maximizing use of educational access.
Upon approval of the attached resolution, it is anticipated that
the microwave equipment will be installed within two weeks and
that pilot programming could begin immediately thereafter.
It is recommended that the resolution authorizing the Mayor
to enter into agreement with Comcast Cablevision be adopted.
75-0264
RESOLUTION NO.
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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.
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BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE
CITY OF SAN BERNARDINO AS FOLLOWS:
SECTION 1. The Mayor of the City of San Bernardino is
hereby authorized and directed to execute on behalf of said City
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an agreement with COMCAST CABLEVISION relating to the lease of
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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
meeting thereof, held on the
day of
, 1990, by the following vote, to
wit:
AYES:
NAYS:
ABSENT:
City Clerk
12/21/89
AGREEMENT WITP COMCAST CABLEVISION RELATT ; TO THE INSTALLATION
OF MICROWAVE UIPMENT ON COMCAST CABLEV~ ~ON LEASED PROPERTY.
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The
day of
foregoing resolution
hereby approved this
is
, 1990.
Approved as to form
and legal content:
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JAMES F. PENMAN
City Attorney
\
By
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12/21/89
w. R. Holcomb, Mayor
City of San Bernardino
..
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TOWER SPACE LEASE AGREEMENT
This Lease, dated this day of , 19 ,.. is by
and between the City of San Bernardino, an incorporated city or its
lawful successors and assigns (hereinafter "Lessee") and Comcast
Cablevision of San Bernardino, Inc., (hereinafter "Lessor").
RECITALS
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 MHz,
watts, and for no other purpose.
A. Tower Space. Space to mount one (1) antenna, at the 8
foot level on the Tower.
B. Building 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.
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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
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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 i~
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
additionally 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
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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.
7.
CONSTRUCTION PERMITS
COMPLIANCE WITH LAWS.
AND
LICENSES;
MECHANICS
LIENS;
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 ~uch
labor or materials shall attach to or affect the Prem1ses
or any part thereof, or to any of the improvements or
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appurtenances thereon. Whenever and as often as any
l!Iech<;Lnics' , ~aterialmens' , contractors' or any other lien
1S f1led aga1nst 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 Regulations. 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 att~ibutable
to Lessee with ten (10) days after Lessee's rece1pt 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
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in this Section.
10. ~NDEMN~FICATION. Lessor and Lessee agree to mutually
1ndemn1fy and hold harmless the other, its affiliates
officers, directors and employees from all damages, claims o~
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 ar1s1ng
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 f?r any increase
in the property insurance of Lessor cover1ng 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.
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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 within
ten (10) days after the termination of this Lease shall be
deemed abandoned.
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l4. ASSIGN~mNT 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
within the time periods provided herein Lessee's sole
remedy shall
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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 prov1s1on 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 af ter
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 "0" Street
San Bernardino, CA 92418
or to such other address as either party shall have specified
in writing to the other party.
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RE: AGREEMENT WIT" COMCAST CABLEVISION RELAT' TO THE INSTALLATION
OF MICROWAVE ,UIPMENT ON COMCAST CABLEV__iON LEASED PROPERTY
IN WITNESS THEREOF,
the parties effective as
written.
ATTEST:
Shauna Clark
City Clerk
Approved as to form
and legal content:
JAHES F. PENHAN
city Attorney
~ )
BY /J~" -; r ~--
this Agreement has been executed by
of the date and year first above
CITY OF SAN BERNAROINO
Municipal Corporation of
the State of California
By:
W. R. Holcomb, Mayor
City of San Bernardino
LESSOR:
BY:
Comcast Cablevision
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EXHIBIT "A"
TOWER SITE OESCRIPTION
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 87" 56' 00" W, a
distance of 82.00 feet; Thence, N 20 04' 00" 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:
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