HomeMy WebLinkAboutCC AG PKT 2009-01-26 #HAGENDA STAFF REPORT
DATE: January 26, 2009
T0: Honorable Mayor and City Council
THRU: David Carmany, City Manager
FROM: Jill R. Ingram, Assistant to the City Manager
SUBJECT: REQUEST BY TIME WARNER CABLE TO SUBLEASE
CELL TOWER SPACE
SUMMARY OF REQUEST:
That the City Council receive and file the attached request from Time Warner
Cable for consent to sublease tower space.
BACKGROUND:
The City Council approved a Communication Site Lease Agreement between the
City of Seal Beach and Comcast Cablevision (now Time Warner Cable) on
September 1, 1998, for the operation of communication facilities located west of
the Seal Beach Police Department parking lot area.
Section 10 of the Communication Site Lease Agreement requires the cable
television operator to obtain the City's written consent prior to subleasing
equipment space on the cell tower, and per terms of the agreement, the City
cannot unreasonably withhold consent.
The City Attorney has reviewed the attached request from Time Warner to
sublease tower space, and has approved the consent as to form, as per Section
10 of the Communication Site Lease Agreement.
FINANCIAL IMPACT:
There is no financial impact.
RECOMMENDATION:
That the Ciry Council receive and file the attached request from Time Warner
Cable for consent to sublease tower space.
SUBMITTED BY: NOTED AND APPROVED:
7iLYY1 4~°~
. Ingram, David Carmany, City Manager
Assistant to the City Manager
Attachments:
A. Copy of Request for Consent to Sublease
B. Copy of Communication Site Lease Agreement (dated September 1, 1998)
Agenda Item ~"~
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Business Services
~~T(ME WARNER
CABLE
September 26, 2003
City of Seal Beach
211 8th Street
Seal Beach, CA 90740
Attn: City Manager
RE: Consent to Sublease
Communication Site Lease Agreement dated September 1, 1998 beM•een
City of Seal Beach and Time Warner Cable, as successor in interest to Comcast
Cablevision of Seal Beach, lnc.
Dear City Manager
Per Section 10 of the above-referenced lease, Time Wamer Cable is requesting your consent to
sublease tower space to Voicestream Wireless Corporation. The site is located at 1778 Adolfo Lopez
Drive, Seal Beach, CA. Time Warner Cable and Voicestream have reached terms that are acceptable to
both parties relating to this sublease.
Please provide the City's consent by signing below on both copies. Please mail one back to us in the
envelope provided and retain one for your records.
If neither consent nor objection is received by October 29, 2008, Time Warner Cable will consider
consent given.
If you have any questions, please contact Paul Robinson at 310-563-5811. Thank you for your prompt
attention to this matter.
Sincer ,
Paul Robin osF~n %~~
Vice President Sales, Business Services
CONSENT:
City of Seal Beach
Name Z~aUtd N• Carmun~l
~ dll'1QD121
Title:
3925012_I.DOC
C~p~
COMMUNICATION SITE LEASE AGREEMENT
This Communication Site Lease Agreement (this "Lease")
is entered into a°fective as of this first day of September, 1998
(the "Effective Date") by and between the City of Seal Beach,
public body corporate and politic (the "Landlord") and Comcast
Cablevision of Sea7• Beach, Inc., a Delaware corporation (the
"Tenant").
RECITALS
A. Landlord is the owner of that certain property
located in the City of Seal Beach, County of Orange, State of
California described on Exhibit "A" attached hereto and
incorporated herein by this reference (the "Premises").
B. Tenant is in the communications business and
desires to lease the Premises from the Landlord on the terms and
conditicrs set forth herein.
Operative Provisions
In consideration of the mutual covenants contained in this
Lease, and of the recitals which are incorporated herein by this
reference, the parties hereto agree as follows:
1. Leased Premises. The Landlord leases to the
Tenant and the Tenant leases from the Landlord the Premises.
This Lease shall commence on September 1, 1998, (the
"Commencement Date") and shall end on the date which is one (1)
year from the Commencement Date (the "Initial Term"). Upon the
expiration of the Initial Term and upon each anniversary
thereafter, this Lease shall be automatically extended for
successive terms of one (1) year each (the "Successive Term(s)"),
unless not less than 12o days prior to the expiration of the
Initial Term or any Successive Term, the Tenant delivers to the
Landlord writ[en notice of the Tenant's election not to renew
this Lease for a Successive Term.
2. Rental. Tenant shall pay Landlord as rent for the
Premises each year during the term of this Lease the sum of
Fifteen Thousand Dollars (the "Base Rent"). Tenant shall pay the
Base Rent annually, in advance, on the Commencement Date and on
each anniversary of the Commencement Date. The Base Rent shall
be increased each year as described below. Tenant's obligation
to pay the Base Rent shall be a separate and independent covenant
and shall not be reduced by counterclaim or offset.
The Base Rent shall be increased annually effective as
of each anniversary of the Commencement Date by an amount equal
to the percentage increase in the CPI for the month twelve months
prior to the adjustment date. "CPI" means the Consumer Price
Index for All Urban Consumers for the Lcs Angeles area, issued by
980317 57296-00003 hjw 399093fi.5 0
the Bureau of Labor Statistics for the United States Department
of Labor (1997 equal 100).
3. Use of Premises. The Tenant shall use the
Premises for the operation of communication facilities in
connection with Tenant's cable television business and for no
other purpose. The Tenant shall not construct any improvements
on the Premises without the Landlord's written consent, which
consent shall not be unreasonably withheld.
4. Access to Property. r^or the Term of this Lease,
Tenant shall have 24 hour access to the Premises.
5. Dompliance With Laws. The Tenant shall, at the
Tenant's expense, comply with all present and future federal,
state, local, and city laws, ordinances, rules, regulations, and
policies in connection with the use, operation, maintenance and
construction of the Tenant's facilities on the Premises.
6. Maintenance. Tenant shall maintain the Premises
and all improvements, equipment, structures and other property on
the Premises in good workinc order and condition. Tenant shall
keep the Premises free and clear of all trash, debris and
graffiti.
Indemnification. Insurance and Exculpation.
a. Indemnification of the Landlcrd. The Tenant
shall indemnify, defend and hold the Landlord and any successor
to the Premises, their respective present, future and former
council members, officers, employees, attorneys and agents and
their respective predecessors, successors, assigns, heirs,
executors, and administrators of each of the foregoing from and
against any and all losses, claims, demands, costs, expenses,
liens, fines, penalties, liabilities, judgments and damages
resulting directly or indirectly from or related to the use of
the Premises.
b. Exculpation of the Landlord. The Landlord
shall not be liable to the Tenant for any damage to the Tenant or
the Tenant's, customers, employees, invitees, patrons, and
successors in interest, except to the extent caused by the
negligence of the Landlord. The Tenant on behalf of the Tenant
and the Tenant's successors in interest, hereby waives all claims
against the Landlord for personal injury and property damages,
except to the extent caused by the negligence of the Landlord.
8. Insurance. The Tenant shall obtain and maintain a
broad form commercial general liability insurance policy
providing coverage for at least Five Million Dollars ($5,000,000)
as the combined single limit for each occurrence of bodily
injury, personal injury and property 3amage. The policy shall
provide blanket contractual liability insurance for all written
contracts, and shall include coverage for operations liability,
38031] S]296-00001 h7r 199093fi.5 0 - 2
independent contractors liability, property damage from
explosion., collapse or damage to underground utilities. In
addition to the foregoing, the Tenant shall also maintain
Workers' Comaensation Insurance at statutory liability limits.
All policies, with exception of the workers'
compensation policy, shall name the Landlord as an additional
insured on a certificate of insurance in a form approved by the
Landlord which approval shall not be unreasonably withheld, and
shall require at least thirty (30) days prior written notice of
any intention not to renew the policy or to cancel, replace or
reduce the coverage of such policy.
9. Condition of Premises. The Tenant hereby accepts
the Premises in an "as is" condition with all faults and without
any representation or warranty by the Landlord as to the
condition of the Premises.
10. Assignment gad Subletting. The Tenant shall not
assign this Lease in whole or in part without the Landlord's
prior written consent, which consent shall not be unreasonably
withheld.
11. EstoApel Certificate. The Tenant hereby agrees to
provide, within ten days of a written request by the• Landlord, a
statement in writing certifying that the Lease is unmodified and
in full force and effect (or setting forth the terms of such
modification) and if no default has occurred under the Lease,
that the Landlord is not in default under the terms of the Lease,
and any other matters reasonably requested by the Landlord.
12. Hazardous Substance Indemnification. The Tenant
hereby represents and warrants that the Tenant will not generate
or store any "hazardous substance" on the Premises. For purposes
hereunder the term "hazardous substance" as used herein, means
any substance, material or other thing regulated by or pursuant
to any federal, state or local statute or ordinance by reason of
its potential for harm to human health or the environment because
of its flammability, toxicity, reactivity or corrosiveness. The
Tenant agrees to indemnify, defend and hold the Landlord harmless
against any release of such hazardous substance and any claim,
damage, loss or liability resulting therefrom including all
reasonable attorneys fees, costs and fines incurred as a result
thereof.
13. Mechanic's Liens. Tenant shall keep the Premises
free from any liens arising out of any work performed, material
furnished or obligation incurred by or for Tenant or for any
person or entity claiming through or under Tenant. In the event
that Tenant shall not, within ten (10) days following the
imposition of any such lien, cause the same to be released of
record by payment or posting of a property bond, Landlord shall
have, in addition to any other remedies provided herein and at
law or equity, the right, but not the obligation, to cause such
98031] 5]296-00001 h]v 1990936.5 0 - 3 -
lien to be released by such means as Landlord deems proper,
including payment of the claim giving rise to such lien. All
such sums paid and all expenses incurred by Landlord in
connection therewith shall be due an3 payable to Landlord by
Tenant on demand.
14. Events of Default. Tenant's performance of each
of Tenan*_'s obligations under this Lease is a condition as well
as a covenant. Tenant's right to continue in possession of the
Premises is conditioned upon such performance. Tenant shall be
in material default under this Lease:
(a) If Tenant abandons the Premises;
(b) If Tenant fails to pay rent or any other
charge when due;
(c) If Tenant fai
material non-monetary obligations
of thirty (30) days after written
provided that if more than thirty
complete such performance, Tenant
Tenant commences such performance
thereafter diligently pursues its
Ls to perform any of Tenant's
under this Lease for a period
notice from the Landlord;
(30) days are required to
shall not be in default if
within the thirty (30) days and
completion.
(d) If the Tenant makes a general assignment for
the benefit of creditors, files a petition for adjudication of
bankruptcy or for reorganization, or if a trustee or receiver is
appointed to take possession of substantially all of the Tenant's
assets.
15. Landlord Rights and Remedies. In addition to any
other rights and remedies available to Landlord in law or equity,
Landlord shall have the following rights and remedies in the
event of a default by Tenant that is not cured by Tenant within
the applicable grace period described herein:
a. The rights and remedies provided by
California Civil Code Section 1951.2 to recover from Tenant upon
termination of the Lease:
(1) the worth at the time of award of the
unpaid rent which had been earned at the time of termination;
(2) the worth at the time of award of the
amount by which the unpaid rent which would have been earned
after termination until the time of award exceeds the amount of
such rental loss that Tenant proves could have been reasonably
avoided;
(3) subject to Subdivision (c) of California
Civil Code Section 1951.2, the worth at the time of award of the
amount by which the unpaid rent for the balance of the Term after
9B0317 67796-00001 h]v 1490936.5 0 4 -
the time of award exceeds the amount of rental loss that Tenant
proves could be reasonably avoided; and
(4) any other amount necessary to compensate
Landlord for all the detriment proximately caused by Tenant's
failure to perform its obligations under this Lease or which in
the ordinary course of things would likely result therefrom,
including, but not limited to, any attorneys' fees, broker's fees
commissions or finder's fees, any costs for repairs, clean-up,
refurbishing, removal (including the repair of any damage caused
by such removal) and storage (or disposal) of Tenant's personal
property, equipment, fixtures, and anything else that Tenant is
required to remove but does not remove, and any cost for
alterations, additions, renovations (and any other costs and
expenses) incurred by Landlord in regaining possession of and
reletting (or attempting to relet) the Premises.
The "worth at the time of award" of the amounts referred to
herein shall be computed by allowing interest at the prime rate.
b. The rights and remedies provided by
California Civil Code Section 1951.4, which allows Landlord to
continue this Lease, including the right to recover rent and any
other additional monetary charges as they become due, for as long
as Landlord elects to exercise its remedies described in this
subsection "b" and Landlord does not terminate this Lease or a
sublease of the Premises at such time as Tenant is in default,
Landlord shall not unreasonably withhold its consent to such
assignment or sublease. Acts of maintenance or preservation,
efforts to relet the Premises or the appointment of a receiver
upon Landlord's initiative to protect its interest under this
Lease shall not constitute a termination of Tenant's right to
possession.
16. Voluntary Termination. This Lease may be
voluntarily terminated (i) by the Tenant if the Tenant is unable,
following the exercise of the Tenant's best efforts, to obtain or
maintain any license, permit, or other governmental approval
necessary for the operation of the Tenant's business, (ii) by the
Tenant upon written notice to the Landlord in the event of a
material default of the Landlord which remains uncured for thirty
(30) days following the Landlord's receipt of such written
notice, or (iii) by the Landlord if the Landlord determines in
the Landlord's reasonable discretion that the Tenant's facilities
are being operated in a manner threatening to the health, safety,
or general welfare of the residents of the City of Seal Seach.
Upon termination of this Lease, the Tenant shall,
within thirty (30) days of the date of termination, repair any
damage to the Premises and shall restore the Premises to the
condition of the Premises prior to the Commencement Date. Any
improvements remaining on the Premises at end of such thirty (30)
day period shall, at the election of the Landlord (i) become the
980]17 57396-00003 O7w 139093fi.5 0 ~ 5 -
property of the Landlord, or (ii) be removed by the Landlord at
the Tenant's cost and expense.
17. Condemnation. Zn the event the Premises is
condemned by eminent domain, this Lease shall automatically
terminate as of the date the Premises is condemned. In the event
of a taking under the power of condemnation, the Landlord shall
receive the full amount of any condemnation award and the Tenant
shall not be entitled to any award. The Tenant hereby expressly
waives any right to claim any damages for condemnation, from the
Landlord provided, however, the Tenant shall be entitled to
recover from any condemning authority other than the Landlord
such condemnation damages as may be separately recoverable by the
Tenant.
18. First Refusal. Zn the event that the Landlord at
any time during the term of this Lease determines to sell the
Premises, or any larger parcel of property in which the Premises
is an undivided part, the Landlord shall endeavor to give notice
thereof to the Tenant and shall endeavor to give the Tenant the
right and opportunity to purchase the property underlying the
Premises or such larger parcel, on terms substantially the same
as the Landlord intends to offer the property, or such other
parcel, which term shall be specified in the notice, to any other
person, provided, however, if the Tenant has not agreed to
purchase the property or such parcel on those terms within
thirty (30) days of receipt of such notice, or has failed to
respond to the Landlord within such period, then the Landlord
shall be free to sell the property or such other parcel on the
terms specified in the notice to any other person.
Notwithstanding the foregoing, in the event the Landlord fails to
provide the Tenant with notice of a right and opportunity to
purchase the property, or such larger parcel, such failure shall
not be actionable or result in any damages to the Landlord.
19. Other Communication Facilities. Notwithstanding
any other provision in this Lease, the Landlord shall be able to
lease the Premises to any other communications company provided
such complementary leases do rot unreasonably interfere with
Tenant's use of the Premises.
20. Taxes. Tenant shall be responsible for the
payment of any and all taxes, including without limitation, real
property, franchise, utility and possessory interest taxes
assessed against the Premises, Tenant or Landlord pursuant to
this Lease. Tenant hereby acknowledges receipt of notice of the
potential levy of possessory interest taxes pursuant to
Section 107.6 of the California Revenue and Taxation Code which
requires that municipalities must disclose to parties with which
such municipalities contract, the possibility of an assessment of
a possessory interest tax with respect to such contract.
21. Attorne s' Fe s and Costs. In the event any party
is required to bring suit or other legal proceeding to enforce or
98031] 5]a 96-00001 5]v 1990936.9 ] _ 6 -
interpret the terms and scope of this Lease, it is agreed that
the prevailing party shall be entitled to recover from the non-
prevailing party reasonable attorneys' fees, expenses, expert
fees, and costa of suit incurred therein.
22. Binding Nature. This Lease, and all of the terms
and provisions hereof, shall be binding upon and inure to the
benefit of the parties and their respective partners, directors,
officers, employees, agents, affiliates, successors and assigns.
23. Construction. The language in all parts of this
Lease shall be in all cases construed simply according to its
fair meaning, as though all parties have had equal input in the
drafting of the same, and not strictly for or against any party.
Whenever the context requires, all words used in the singular
will be construed to have been used in the plural, and vis-a-
versa. The captions of the sections of this Lease are for
convenience only and shall not affect the construction or
interpretation of any of the provisions hereof.
24. Partial Invalidity. Should any portion, word,
clause, phrase, sentence, section or paragraph of this Lease be
declared void or unenforceable, such portion shall be considered
independent and severable from the remainder, the validity of
which shall remain unaffected.
25. Integration/Amendment. This Lease embodies the
entire agreement of the parties hereto who have executed it and
supersedes any and all other agreements, understandings,
negotiations, or discussions, either oral or in writing,
expressed or implied, between the parties to this Lease with
respect to the contents hereof. The parties to this Lease each
acknowledge that no representations, inducements, promises,
agreements, warranties, oral or otherwise have been made to them,
or anyone acting on their behalf, which are not embodied in this
Lease; that they have not executed this Lease in reliance of any
representation, inducement, promise, agreement, warranty, fact or
circumstance not expressly set forth in this Lease; and no
representation, inducement, promise, agreement or warranty not
contained in this Agreement, including, but not limited to, any
purported supplements, modifications, waivers or termination of
this Lease, shall be valid or binding, unless executed in writing
by the parties to this Lease. This Lease may be amended, and any
provisions hereof waived, but only in writing signed by the party
against whom such amendment or waiver is sought to be enforced.
26. Compliance With Terms. Failure to insist upon
compliance with any term, covenant or condition contained in this
Lease shall not be deemed a waiver of that term, covenant or
condition, nor shall any waiver or relinquishment of any right or
power contained in this Lease at any one time or more times be
deemed a waiver or relinquishment of any right or power at any
time or other time or times. Execution in counterpart of this
Lease may be executed in a number of counterparts each of which
960317 67396-00071 hiv 1990936.5 0 7 -
shall be deemed an original, but all of which shall constitute
one ar_d the same instrument. This Lease shall not become
effective unless and until it is fully executed.
27. Governing Law and Jurisdic ion. This Lease shall
be interpreted under the laws of the State of California, both as
to interpretation and performance. This Lease is being entered
into in the City of Seal Beach, California and the Superior Court
for the State of California, County of Orange, shall have
exclusive jurisdiction in any action, suit, arbitration or other
proceeding arising out of or with respect to the subject matter
of this Lease, and any cause of action arising out of this Lease
shall be deemed to have arisen from a transaction in the City of
Seal Beach, California.
28. Notices. Any notice or other communication given
hereunder ('Notice") shall be in writing and personally delivered
or sent by United States Registered or Certified Mail or sent by
a nationally recognized courier service such as Federal Express,
addressed to the applicable party at the addresses set forth
below. Delivery of any Notice shall be deemed made on the date
of its actual delivery, or the date indicated in the return
receipt or courier's records as of the date of its delivery or
first attempted delivery if sent by mail or courier. Any party
may change its address for notice purposes by giving notice to
the other parties.
Landlord: The City of Seal Beach
211 8th Street
Seal Beach, California 90740
Attention: City Manager
Tenant: Comcast Cablevision of Seal Beach, Inc.
1830 E. Warner Avenue
Santa Ana, California 92705
with a copy to:
Comcast Corporation
1500 Market Street, East Tower
Philadelphia, Pennsylvania 19102
Attention: General Counsel
In witness whereof, the parties hereto have executed
this Lease as of the date first referenced above.
(Signatures Follow)
980337 57296-00001 h]v 1990936 5 0 ~ 8 -
LANDLORD:
CITY OF SEAL BEACH,
public body corporate and
politic
TENANT:
99031] 5]296-00001 h7v 1490936 5 0 - 9
COMCAST CABLEVISION OF SEAL
BEACH, INC., a Delaware
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