HomeMy WebLinkAboutPacific Sun Cable Partnersi
ks
GROUND LEASE
by and between
TOWN OF LOS ALTOS HILLS
and
PACIFIC SUN CABLE PARTNERS, L.P.
Jurge, , 1990
ks
GROUND LEASE
by and between
TOWN OF LOS ALTOS HILLS
and
PACIFIC SUN CABLE PARTNERS, L.P.
Jurge, , 1990
TABLE OF CONTENTS
Paste
ARTICLE 1
PREMISES AND IMPROVEMENTS . . . . . . .
. . . . . 1
1.1
Lease of Premises . . . . . . . . . . . .
. 1
1.2
Improvements . . . . . . . . . . . . . .
. . . . . 2
ARTICLE 2
TERM ... . . . . . . . . . . .
. . . . 2
ARTICLE3
RENTAL . . . . . . . . . . .
. . . . . 3
3.1
Base Rent . . . . . . . . . . . . . . . .
. . . . . 3
3.2
•.Extension Rent . . . . . . . . . . . . .
. . . . . 3
3.3
Annual Increase . . . . . . . . . . . . .
. . . . . 3
3.4
Transactional Costs . . . . . . . . . . .
. . . . . 4
3.5
Inspection Costs . . . . . . . . . . .
4
3.6
Percentage Rent . . . . . . . . . . . . .
. . 4
• 3.7
Late Charge . . . . . . . . . . . . . .
. 5
ARTICLE 4
ADDITIONAL CONDITIONS . . . . .
. . . . 5
4.1
Free Drop . . . . . . . . . .
5
4.2
Moving Conduit . . . . . . . ..
5
4.3
Undergrounding . . . . . . . .
. . . . 5
4.4
Monitoring Service . . . . . . . . . . . .
5
4.5
Survey . . . . . . . . . . . . . . . . . .
. . . . 6
4.6
Letter of Credit . . . . . . . . . . . . .
. 6
4.7
Excess Cost of Equipment . . . . . . . . .
. . . . 6
4.8
Franchise Agreement . . . . . . . . . . . .
. . . . 6
ARTICLE 5
USE . . . . . . . . . . . . . . . . . . .
. . 7
5.1
Permitted Uses . . . . . . . . . . . . . .
. . . . 7
5.2
Prohibited Uses . . . . . . . . . . . . . .
. . . . 7
Pacte
5..3
Approval by the Town and Other Agencies
7
5.4
Compliance with Laws . • • • • • • • • •
8
5.5
Condition, Use of Premises . . . . . . . . . .
. . 8
5.6
Toxics ... . . . . . . . . . . . . . . . . . .
. . 8
ARTICLE 6
MAINTENANCE, REPAIRS AND ALTERATIONS . . . .
. . 10
6.1
General . . . . . . . . . . ... . . . . . . . .
. . 10
6.2
Surrender . . . . . . . . . . . . . . . . . . .
. . 11
6.3
Town's Rights . . . • . . • • . .
it
6.4
Town's Obligations . . . . . . . . . . . . . .
. . 11
6.5
Security Measures . . . . . . . . . . . . . . .
. . 11
6.6
InDrovements . . . . . . . . . . . . . . . •
• . • 1,12
ARTICLE 7
INDEMNITY AND INSURANCE . . . . . . . . . . .
. . 13
7.1
Indemnity . . . . . . . . . . . . . . .
13
7.2
Waiver of Claims . . . . . . . . . . . .
14
. 14
7.3
Insurance . . . . . . . . . . . . . . . . . . .
.
7.4
Waiver of Subrogation . . . . . . .'
15
ARTICLE 8'
DAMAGE, DESTRUCTION AND TERMINATION . . . . .
. . 15
8.1
Destruction Due to Risk Covered by Insurance
15
8.2
Destruction Due to Risk Not Covered by
Insurance . . . . . . . . . . . . . . . . . . .
. . 15
8.3
Loss During Last Part of Term . . . . . . . . .
. 16
8.4
Temporary Facilities . . . . . . . . . . . .
. . 16
8.5
Termination - Advance Payments
16
8.6
Waiver . . . . . . . . . . . . . . . .
17
Paae
ARTICLE 9 TAXES . . . . . . . . . . . . . . . .
. . . . . 17
9.1 Personal Property . . . . . . . . . . . .
. . . . . 17
9.2 Real Property . . . . . . . . . . . . . .
. . . . . 17
9.3 Definition .. . . . . . . . . . . . . . .
. . . . . 17
ARTICLE 10 UTILITIES . . . . . . . . . . . . . .
. . . . . 18
ARTICLE 11 . SIGNS . . . . . . . . . . . . . . . .
. . . . . 18
ARTICLE 12 ASSIGNMENT AND SUBLETTING . . . . . .
. . . . . 18
12.1 Town's Consent Required . . . . . . . . .
. . . . . 18
12.2 No Release of Company . . . ... . . . . .
. . . . . 18
ARTICLE 13 DEFAULTS; REMEDIES . . .
. 19
13.1 Defaults . . . . . . . . . . . . . .
lA
13.2 Remedies . . . . . . . . . .
.. 20
13.3 No Relief From Forfeiture After Default .
. . . . . 20
ARTICLE 14 TOWN'S LIABILITY . . . . . . . . . . .
21
ARTICLE 15 INSPECTION OF COMPANY RECORDS . . . .
. . . . . 21
ARTICLE 16 INTEREST ON PAST -DUE OBLIGATIONS . . .
. . . . . 21
ARTICLE 17 HOLDING OVER .. . . . .
. . . . . 22
ARTICLE 18 TOWN'S ACCESS . . . . . . . . . . . .
. . . . . 22
ARTICLE 19 QUIET POSSESSION . . . . . . . . . . .
. . . . . 22
ARTICLE 20 EASEMENTS . . . . . . . . . . . .
. . . . . 22
ARTICLE 21 GENERAL PROVISIONS . . . . . . . .
23
21.1 Severability . . . . . . . .
. . . . . 23
21.2 Time of Essence . . . . . . . . . . .
. . . . . 23
21.3 Additional Rent . . . . . . . . . . . .
. 23
21.4 Entire Agreement, Modification . . .
. . . . . 23
21.5 No Warranty . . . . . . . . . . . . . . .
. . . . 23
_1
Page
21.6 Notices . . . . . . . . . . • . . . . . . . . 23
21.7 Waivers . . . . . . . . . . . . . . . . . . . . 24
21.8 Cumulative Remedies . . . . . . . . . . . . . 24
21.9 Binding Effect; Choice of Law . . . . . . . . 24
21.10 Conditions to Effectiveness of Lease . . . . . . 24
21.11 Attorneys' Fees . . . . . . . . . . . . . . . 24
21.12 Authority . . . . . . . . . . . . . . . . . . . . 24
21.13 Captions . . . . . . . . . . . . . . . . . . . . 24
21.14 Memorandum of Lease o . . . . . . . . . . . 25
- iv -
THIS LEASE ("Lease"), is made and entered into by and
between the Town of Los Altos Hills, a municipal corporation,
("Town") and Pacific Sun Cable Partners, L.P., a Washington
limited partnership, ("Company").
RECITALS
A. Town, a municipal corporation in Santa Clara County is
the owner of certain .property situated in Santa Clara County,
State of California, as hereinafter described; and
B. Company is a limited partnership organized under the
laws of the State of Washington whose principal business is to
provide cable television services; and
C. Town has entered into a Franchise Agreement with
Company's predecessor, Sun Country Cable, Inc., for cable
television services to be provided to the residents of the Town;
and
D. Company requests use of certain property owned by Town,
and as hereinafter described, for the construction, installation
and operation of a cable television headend facility; and
i
E. Town is willing to permit Company to lease the said
property in accordance with the terms,. conditions and covenants
of this Lease.
NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:
ARTICLE 1
PREMISES AND IMPROVEMENTS
1.1 Lease of Premises. Town hereby leases to Company and
Company leases from Town.for the term, at the rental, and upon
all of the conditions set forth herein, that certain real
property on the Town Property on Purissima Road in the vicinity
of Viscaino Road ("Town Property")., to the southwest of the first,
playing field and the Town riding ring, consisting of
approximately 1593 square feet (the "Premises"). When a survey
of the exact area to be leased is completed by Company and
approved by the Town, as set forth below, a copy of the legal
description of the Premises shall be signed by both parties and
attached hereto as Exhibit A.
The Premises include a non-exclusive, appurtenant easement
to Company from Purissima Avenue. This easement shall be fifteen
(15) feet in width and shall be for the sole purpose of ingress
and egress to the Improvements (as defined below) and for the
lccation of underground conduit from the Improvements (as defined
below) to Purissima Avenue, together with the incidental right to
construct, repair, maintain and replace the underground conduit
within the easement. When a survey of the exact easement is
- 1 -
completed by Company and approved by Town, as set forth below, a
copy of the legal description of the easement shall be signed by
both parties and attached hereto as Exhibit A., page 2. Company
agrees that it shall direct and coordinate construction, repair,
maintenance and replacement of the Improvements and underground
conduit within the Premises so as to'minimize any interference
with uses on the Town Property. Company agrees to repair
immediately any damage to the easement caused by the
construction, repair., maintenance or replacement of the
underground conduit. If Company fails to repair any'damage as
required herein, within ten (10) days after the mailing by Town
of written notice to Company to perform such work, then Town
shall have the right, but not the obligation, to perform such
repair work and Company agrees to reimburse Town on demand
1.2 Improvements. The Premises shall be used by Company
only to locate a building of no more than 240 square feet, an
antenna no taller than 70 feet from the present grade, up to
three microwave dishes no larger than 4.6 meters in diameter and
no taller than 15 feet from the present grade, a black vinyl
covered chain link fence no taller than 6 feet from the present
grade and placed around an area of 1353 square feet to enclose
the antenna and microwave dishes, landscaping and underground
conduit ("Improvements"), to provide the highest quality -cable
television and related services to residents and users in the
Town and nearby communities. The Improvements are more
particularly shown on plans, which were approved through the site
development process required by the Town. A copy of these plans
is attached hereto as Exhibit B.,
ARTICLE 2
TERM
.The .term of this Lease .shall be for a period of approxi-
mately thirteen'(13) years commencing on May 1, 1990 and
terminating on June 17, 2003 unless earlier terminated as set
forth herein. Company and Town have entered into a Franchise
Agreement on June 18 , 1988 and June 21, 1988, respectively (the
"Franchise Agreement"), a copy of which is attached hereto as
Exhibit C. If Town and Company renew the Franchise Agreement,
pursuant to the Franchise Agreement, and provided that Company is
not in default hereunder, Company shall have the option to renew
this Lease for an additional period equal to the Franchise
Agreement renewal period with the understanding that all terms,
conditions, and requirements of this Lease shall continue in
effect during the option term.
- 2 -
ARTICLE 3
RENTAL
3.1 Base Rent. Company shall pay to the Town as rent for
the Premises in advance on the first.day of each calendar month
of the term of this Lease without deduction, offset, prior notice
or demand, in lawful. money of the United States, the sum of One
Thousand ($1,000.00) ("Base Rent"). The Base Rent for May and
June 1990 shall be paid upon execution of the Lease. If the
Lease termination date is not the last day of the month, a
prorated monthly installment shall be paid at the then current
rate for the fractional portion of that month during which the
Lease terminates.
The Base'Rent shall be increased to One
Dollars ($1,100.00) per month on the earlier
or (ii) the date on which the first home
is outside the Town limits is passed by
Improvements. For the purposes of this
shall mean cable is installed so that a
could connect to the cable if the home o
subscribe to cable television.
Thousand One Hundred
of (i) May 1, 1991,
or other facility which
cable utilizing the
Lease, "passed by cable"
home or other facility
r other facility chose to
3.2 Extension Rent. Company also shall pay to Town, as
additional rent, on the first day of each month of the. term of
this Lease without deduction, offset, prior notice, or demand, in
lawful money of the United States, an amount equal to the number
of homes and other residential facilities outside the Town limits
which are passed by cable utilizing the Improvements times Forty
Five Cents ($.45), (the "Extension Rent Factor") regardless of
the number of these homes or other facilities that actually
contract for service for cable television ("Extension Rent").
The calculation of the Extension Rent shall be based on the
number of homes and other facilities passed by cable as of the
thirtieth (30th) day of.the immediately preceding month.
3.3 Annual Increase. During the entire term of this Lease,.
including the option term, if the option is exercised, the Base
Rent shall be increased annually beginning on May 1, 1992, and
the Extension Rent Factor shall be increased annually beginning
on May 1, 1991, and said increases shall be effective on each
anniversary date of this Lease. The annual increase shall be
based on the higher of the two following adjustment factors:
(a) A percentage determined by multiplying 100 times a
fraction, the numerator of which is the most recently published
Consumer Price Index (All Urban Consumer 1982-1984 = 100) for the
San Francisco -Oakland -San Jose Metropolitan Area published by the
United States Department of Labor, Bureau of Labor Statistics
("Index") preceding May 1 ("New Index") minus the Index published
in the same month in the previous year ("Current Index") and the
denominator of which is the Current Index, as illustrated by the
following formula:
-- 3 -
Ir
= 100 X New Index - Current Index
Current Index
(b) A percentage determined by the percentage
increase(s) in the basic rate for cable television services to
the residents of the Town .during the preceding twelve (1.2)
months; provided, that, if the Company can demonstrate, to the
Town's satisfaction, that any increase, or portion thereof, in
the basic rate is due solely to the direct cost of obtaining an
additional channel which results in a net increase in the number
of channelsset forth in Exhibit 'C to the Franchise Agreement,
the amount so demonstrated shall be subtracted from any increase
in the basic rate before the percentage increase is calculated.
As of the effective date of this Lease, the basic rate is $21.'95.
Provided, that, in no event shall the Base Rent or Extension
Rent decrease from the previous year.
3.4 Transactional Costs. Company also shall pay to Town,
as additional rent, any and all transactional costs incurred by
Town as a result of the negotiation, preparation, execution, and
delivery of this Lease, including but not limited to attorneys'
fees ("Transactional Costs"). Town shall furnish Company with an
invoice reflecting the Transactional Costs due and owing
hereunder, and the Company shall make full payment to Town of
said costs within thirty (30) days from the date of Town's
invoice.
3.5 Inspection Costs_. Company shall pay to Town, as
additional rent, prior to Town's execution of this Lease, all the
costs of inspection of Company's installation of,:the Company's
underground conduit and other Improvements incurred by the.Town,
prior to execution of this Lease ("Inspection Costs"). Future
costs incurred by the Town in inspecting any of Company's conduit
or Improvements shall be considered additional rent and shall be
paid by Company, within thirty (3 0) days from the date of Town's
invoice.
3.6 Percentage Rent. on each February 1, commencing on
February 1, 1991, Company shall pay to Town as additional rent an
annual amount equal to five percent (5%) of the Gross Annual
Revenues, as defined in Section 3.25 of Town Ordinance No. 323,
received by Company during the previous calendar year from all
subscribers to cable television services within the Town limits
("Percentage Rent"). If the Lease termination date is not the
last day of the year, the Percentage Rent for the last year of
the Lease shall be prorated and due on February 1 of the year
following the year in which the Lease terminated. The Percentage
- 4 -
Rent shall be reduced by any franchise fees received by Town from
Company by January 30 of each year, pursuant to the Franchise
Agreement.
3.7 Late Charge. Company acknowledges that late payment by
Company to Town of rent will cause Town to incur costs not
contemplated by this Lease, the exact amount of such costs being
extremely difficult and impracticable to fix. Such costs
include, without limitation, processing and accounting charges,
and late charges that may be imposed on Town by the terms of any
encumbrance .and not secured by any encumbrance covering the
Premises. Therefore, if any installment of rent due from Company
is not received by Town when due, Company shall pay to Town an
additional sum of ten percent (10%) of the overdue rent as a late
charge.. The parties agree that this late charge represents a
fair and reasonable estimate of the costs that Town will incur by
reason of late payment by Company. Acceptance of any late charge
shall not constitute a waiver of Company's default with respect
to the overdue amount, nor prevent Town from exercising any of
the other rights and remedies available to Town.
ARTICLE 4
ADDITIONAL CONDITIONS
As additional consideration for Town's entering into this
Lease, Company agrees to the following:
4.1 Free Drop. The free drop to the Ford Country Day School
specified in Exhibit B of the Franchise Agreement shall be
changed to the Town Barn.
4.2 Moving Conduit. If, as a result of work deemed.
necessary by the Town, including but not limited to the
installation or improvement of utilities, Company's underground
conduit in Town must be moved, Company shall promptly perform or
have performed such work at Company's sole cost and expense.
4.3 Undergrounding. If the overhead utilities in any area
of the Town are undergrounded, voluntarily or otherwise, Company
shall at the same time, underground its cables in the affected
area, at Company's sole cost and expense.
4.4 Monitoring Service. If Town deems it appropriate to
have Town staff or an independent contractor conduct a survey of
the service provided by.Company pursuant to the Franchise Agree-
ment, Company shall pay one-half of all costs associated with
such monitoring; provided, however, that if the Company has a
change of management, Company shall, after such a change of
management, pay all of the costs associated with such monitoring.
For the purposes of this Section, "change of management"
shall mean:
5 -
,, (a) if two
longer employed in an
Cable, Inc. ("Sun"):
or more of the following persons are no
active management position with Sun West
David Kinley, John Dolan, Lyn Simpson; or
(b) if any entity other than Sun becomes a general
partner of the Company; or
(c) if Sun dissolves, merges, consolidates, or
reorganizes or transfers, either all at once, or in a series of
transfers, a controlling percentage of the capital stock of Sun.
The phrase "controlling percentage" shall mean the ownership of,
and the right to vote stock possessing at least Fifty One Percent
(51%) of the total combined voting power of all classes of Sun's
capital stock outstanding and entitled to vote for the election
of directors; or
(d) the making by Sun of any general arrangement or
assignment for the benefit of creditors or Sun's becoming a
"debtor" as defined in 11 U.S.C. § 101 or any successor statute
thereto (unless; in the case of a petition filed against the
Company, the same is dismissed within sixty (60) days).
4.5 Survey. Within fourteen (14) days of the Town's
execution of this Lease, Company shall perform or have performed
an ALTA survey of the Town Property and the Premises, including
the easement, in particular, and shall deliver to Town a copy of
said survey for approval. A copy of the approved survey and
legal description of the Premises, including the easement, shall
5e approved and signed by bothparties and shall then be attached
hereto as Exhibit A.
11 4.6 Letter of Credit. Pursuant to Section 3.7 of the
Franchise Agreement, Company shall deliver an irrevocable letter
of credit,. in a form acceptable to Town, in the amount of Forty
Thousand Dollars ($40,000.00) to guarantee the performance of its
obligation under the Franchise Agreement. After Town's City
Attorney has approved the letter of credit, Town shall return the
$40,000 cash paid to Town by Company, in lieu of the letter of
credit, together with all interest accrued by Town on the
$40,000.
4.7 Excess Cost of Eguipment. Prior to receipt of the
certificate of completion for the Improvements, Company shall pay
to Town, an amount which is the remainder of the total equipment
cost of $15,000, set out in Exhibit B to the Franchise Agreement,
which was not expended specifically on access equipment at the
Premises, in order to provide the extra service necessary to
activate up to three (3) local programming channels.
4.8 Franchise Agreement. If any provision of the Franchise
Agreement is determined to be invalid, unconstitutional or
_unenforceable by any branch or agency of the State of California,
the federal government or any court of competent jurisdiction,
the provision so affected shall become a provision of this Lease
and shall be complied with by Company as if it were an original
provision of this Lease.
ARTICLE 5
USE
5.1 Permitted Uses. Company shall use the Premises for the
installation; operation, maintenance and use of a cable tele-
vision headend facility, consisting of the equipment, improve-
ments and specific facilities together with the utilities, cables
and wires reasonably needed to support the operation of the
foregoing facilities, as more particularly specified in
.Article 1. Company shall use the Premises for purposes related
to the cable television headend facility only.
The installation of the Improvements shall be subject to the
reviews, approvals and requirements set forth in Section 5.3.
Company shall be solely responsible for any and all costs
associated with the construction, installation, maintenance and
use of the Improvements; provided that the Town shall pay for the
water used for irrigation of the landscaping.'
Town grants Company reasonable vehicular and foot access to
the Premises solely by the easement described in Exhibit A-2, and
such access shall be available to Company, Company's employees
and invitees, all hours of each day of the week. It is
anticipated, after installation of the Improvements is completed,
that such reasonable access shall be limited to once every week
for the purpose of ordinary fine tuning Company's equipment and
other appropriate maintenance of the Improvements.
.5.2 Prohibited Uses. Company shall not use the Premises
for any purpose not expressly permitted hereunder. Company shall
not (a) create, cause, maintain or permit any nuisance or waste
in, on or about the Premises or permit or suffer the Premises to
be used for any unlawful or immoral purpose, or (b) do or permit
to be done anything in any manner which unreasonably disturbs the
users of the Town Property or the occupants of neighboring
property, or (c) interfere with or disturb in any way the
operation of Town's barn, riding ring and playing fields, or any
future facilities or operations that may be implemented by Town
on the Town Property. Specifically, and without limiting the
above, Company agrees not to cause any unreasonable odors, noise,
vibration, power emissions, or other item to emanate from the
Premises. No materials or articles of any nature shall be stored
outside upon any portion of the Premises.
5.3 Approval by the Town and Other Agencies.. Company, at
its sole cost and expense, may install the Improvements, subject
to -Company's obtaining all required permits, licenses and
- 7 -
approvals from the Town and any other governmental agencies
having jurisdiction over Company's use of the Premises. As a
condition of this Lease, Company shall maintain such permits,
licenses and approvals in force through the term of this Lease,
including the option term, in the event the Lease is extended.
The revocation or expiration of any such permit, license, or
approval shall be a breach of this Lease. Should Company wish to
change, expand or increase the Improvements, it shall not do so
without the prior approval of the Town and without obtaining all
required permits, licenses and approvals from the Town and any
other governmental agencies having jurisdiction over Company's
use of the Premises. If a change, expansion or increase in the
Improvements is so approved, Company and Town shall amend
Exhibit B attached hereto to reflect the changed, expanded or
increased Improvements. Should Company change or expand any
Improvements without the prior approval of Town, Town may require
that Company remove any or all of the same at Company's sole cost
and expense. Company shall be solely responsible for conducting
any environmental review required to be undertaken in association
with Company's use of the Premises and for any and all costs
associated therewith, as well as'any and all fees, charges, or
other expenses that may be imposed by the Town or other
regulatory agencies in connection with Company's use or enjoyment
of the Premises prior to the Lease commencement or at any time
.during the term of the Lease.
5.4 Compliance with Laws. Company shall not do or permit
anything to be done in, on or about the Premises, or bring or
keep anything in, on or about the Premises, which will in any way
conflict with any law, statute, ordinance or governmental rule or
regulation now in force or which may hereafter be enacted or
promulgated by any public authority.
5.5 Condition, Use.of Premises. 'Town makes no warranty or
representation of any kind concerning the condition -of the
Premises, or the fitness of the Premises for the use intended by
Company, and hereby disclaims any personal knowledge with respect
thereto, it being expressly understood by the parties that
Company has personally inspected the Premises, knows their
condition, finds them fit for Company's intended use, accepts
them as is, and has ascertained that they can be used for the
limited purposes specified in Section 5.1,
5.6 Toxics.
(a) Definitions.
(1) "Hazardous Substance" shall mean (i) the
substances included within the definitions of the term
"Hazardous Substance" under the Comprehensive Environ-
mental Response, Compensation and Liability Act of
1980, as amended, 42 U.S.C. section 9601 et seq. and
the regulations promulgated pursuant thereto (collec-
MMM
tively "CERCLA") and (ii) the California Carpenter -
Presley -Tanner Hazardous Substance Account Act,
California Health & Safety Code section 25300 et seq.
and regulations promulgated thereunder.
(2) "Hazardous Waste" shall mean (i) any
waste listed as or meeting the identified character-
istics of a "Hazardous Waste" under the Resource
Conversation and Recovery Act of 1976, 42 U.S.C.
section 6901 et seq. and the regulations promulgated
pursuant thereto (collectively "RCRA") and (ii) any
waste meeting the identified characteristics of
"Hazardous Waste" under the California Hazardous Waste
Control Law, California Health and Safety Code section
25100'et seq. and the regulations promulgated pursuant
thereto (collectively "CHWCL").
(3) "Hazardous Waste Facility" shall mean a
hazardous waste facility as defined under CHWCL.
(4) "Radioactive Materials" or "Radiation"
shall mean such materials as defined in Title 17,
California Code of Regulations section 30100(w) and (z)
or possessing the characteristics of the materials so
defined.
�. (b) Compliance. Company shall obtain Town's prior
written -approval-prior to using, handling, generating,
transporting, storing, treating and/or disposing of Hazardous
Substances, Hazardous Wastes, Radioactive Materials and/or
Radiation in, on, or about the Premises. Town may condition its
approval on, among other things, (i) Company providing adequate
assurance that Company can comply with all applicable laws,
rules, regulations, orders, permits, licenses, and operating
plans of any governmental agency having jurisdiction over the
use, handling, generation, transportation, storage, treatment or
'disposal of Hazardous Substances, Hazardous Wastes, Radioactive
Materials and/or Radiation in, on, or about the Premises or (ii)
Company posting such bonds or policies of insurance providing
coverage in the form and monetary amounts acceptable to Town, in
Town's absolute discretion, to insure and protect Town from loss,
damage, claims,, or injuries relating to or arising from the use,
handling, generation, transportation, storage, treatment or
disposal of Hazardous Substances, Hazardous Wastes, Radioactive
Materials and/or Radiation in, on, or about the Premises.
Following an approval by Town, Company covenants that, at its
sole cost and expense, it will comply with all applicable laws,
rules, regulations, orders, permits, licenses and operating plans
of any governmental authority with respect to the use, handling,
generation, transportation, storage, treatment and/or disposal of
Hazardous Substances, Hazardous Wastes, Radioactive Materials
and/or Radiation, and Company will provide Town with copies of
411 permits, registrations or other similar documents that
authorize Company to conduct any such activities in connection
with its authorized use of the Premises.
(c) Compliance. Company agrees to comply with any and
all applicable laws, rules, regulations, and orders with respect
to the release into the environment of any Hazardous Wastes,
Hazardous Substances, Radiation and/or Radioactive Materials.
Company agrees to notify Town in writing of any unauthorized
release into the environment within twenty-four (24) hours of the
time at which Company becomes aware of such release.
(d) Indemnification. Company shall indemnify, defend,
and hold Town harmless from any and all claims, losses
(including, but not limited to, loss of rental income and loss
due to use of Town Property), damages (including diminution in
value or loss of rental value following expiration or earlier
termination of the term), liabilities, costs, legal fees, and
expenses,.of any sort arising out of or relating to any
unauthorized release into the environment of hazardous substances
or wastes or radiation or radioactive materials by Company or any
of Company's agents, contractors, or invitees, or Company's
failure to comply with this Section 5.6.
(e) Cooperation by Company. Company agrees to
cooperate with Town in furnishing Town with complete information
regarding Company's receipt, handling, use, storage, transporta
tion, generation, treatment and/or disposal of Hazardous Wastes,
w Hazardous Substances, Radiation and/or Radioactive Materials.
Upon request, Company agrees to grant Town reasonable access at
reasonable times to the Premises to inspect Company's receipt,
handling, use, storage, transportation, generation, treatment
and/or disposal of Hazardous.Wastes, Hazardous Substances,
Radiation and/or Radioactive Materials without being deemed
guilty .of any disturbance of Company's use.or, posses. sion and
without being liable to Company in.any manner.
(f) No Reliance. Notwithstanding Town's right of
inspection and review under this paragraph, Town shall .have no
obligation or duty to so inspect or review, and no third party
shall be entitled to rely on Town to conduct any sort of
inspection or review by reason of the provisions of this Section.
(g) Survival. This Section 5.6 of this Lease shall,
survive termination of the Lease, as to any activities during the
term of this Lease.
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ARTICLE 6
MAINTENANCE, REPAIRS AND ALTERATIONS
6.1 General. Company shall keep in good order, condition,
and repair the Premises, and the Improvements placed on the
Premises by Company, and every part thereof. Company shall keep
the Premises clean and free of debris.
6.2 Surrender. On the last day of the term hereof, or upon
any prior termination, Company shall surrender the Premises to
Town in the same condition (the Improvement excepted) as when
received by Company, clean and free of debris. Company shall
also surrender all Improvements and the cables and wires
reasonably needed to support the operation of the Improvements,
that Company placed upon the Premises, with these Improvements
fully functional, in good working order, and the Improvements
shall become the property of the Town; provided that if Town
notifies�Company at least thirty (30) days in advance of the last
day of the term hereof, or within thirty (30) days after any
prior termination date, that Town wishes Company to remove all
Improvements from the Premises, Company shall remove all
Improvements and any related cables, wires or other equipment
which Company has placed on the Premises, repairing any damage to
the Premises occasioned by the installation, maintenance or
removal of Company's Improvements and any related cables, wires
or other equipment, and shall restore the Premises to the same
condition as when Company received the Premises from Town.
6.3 Town's Rights. If Company fails to perform Company's
obligations under any article of this Lease, Town may (but shall
not be required to) enter upon the Premises, after prior notice
to Company, (except in the case of any emergency, in which case
no noticeshall be required), to perform such obligations on
Company's behalf and put the Premises and/or Improvements in good
order, condition and repair, and the cost thereof, together with
interest thereon at the maximum rate then allowable by law, shall
become due and payable as.additional rent to Town with Company's
next rental installment. If no additional rental installment is
due to Town, such costs shall become due and payable within
thirty (30) days from the date of Town's invoice.
6.4 Town's Obligations. Town shall have no obligation to
repair and maintain the Premises nor the Improvements thereto and
facilities placed thereon. Company expressly waives the benefit
of any statute now or hereinafter in effect which would otherwise
afford Company the right to make repairs at Town's expense or to
terminate this Lease because of Town's failure to keep Premises
in good order, condition and repair.
6.5 Security Measures. Town shall have the right to
require that a security system device, operation or plan be
installed and implemented to protect the Premises or the Improve-
meets. Should Town, in its sole discretion, require Company to
install such a security system, Company agrees to bear the sole
cost and expense of any security system, device, operation or
plan and the installation and implementation thereof. Company
shall obtain Town's prior approval before installing or
implementing any security system, device, operation or plan.
6.6 Improvements.
(a) Company shall pay, when due, all claims for labor
or materials furnished or alleged to have been furnished to or
for Company at or for use on the Premises, which claims are or
may be secured by any mechanic or materialmen lien against the
Premises or any interest therein. Company shall give Town not
less than ten (10) days notice prior to the commencement of any
work on the Premises, and Town shall have the right to post
notices of non -responsibility in or on the Premises as provided
by law. If Company, in good faith, contests the validity of any
such lien, claim or demand, then Company shall, at its sole
expense, defend itself and Town against the same and shall pay
and satisfy any such adverse judgment that may be rendered
thereon before the enforcement thereof against the Town or the
Premises. If Town shall require, Company shall furnish to Town a
surety bond satisfactory to Town in an amount equal to such.,
contested lien, claim or demand indemnifying .Town against liabi �
lity for the same and holding the Premises free from the effect
of such lien or claim.- In addition, Town may require Company to
pay Town's attorneys' fees and costs in participating in such
action if Town shall reasonably decide it is in its best interest
to do so.
(b) Before construction of any Improvements are
commenced on the 'Premises and before any building materials
therefor have been delivered to the Premises by Company or agents
under.�ompany's authority, Company shall comply with the follow-
ing conditions or procure Town's written waiver. of the condition
or conditions specified in the waiver
(1) Construction Schedule. Company shall deliver
to the Town; for the Town"s approval, a time schedule
setting forth in detail'a description of the Improvements
and all steps for construction of the Improvements, and
Company's best estimate of the date upon which each step
shall be substantially completed. The Town's approval,
which shall not be unreasonably withheld, or disapproval of
the schedule shall be communicated to Company in the manner
provided for the giving of notice herein and any disapproval
shall be accompanied by a specification of the grounds for
disapproval.
(2) Protection of Adjacent Property. Indemnity of
the Town. Company shall protect the Town Property and adja-
cent property against damage resulting from theperformance
of any work undertaken by Company or Company's agents,
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employees, contractors, or assigns, -and shall indemnify the
Town against all liens or liability in any way arising out
of the performance of the work or the furnishing of labor,
services, materials, suppl..es, equipment or power in
connection therewith.
(3) Insurance. In addition to the insurance
coverage otherwise required under this Lease, Company shall
maintain or cause to be maintained workers' compensation
insurance covering all persons employed in connection with
the construction of any Improvements, repair or maintenance
activities with respect to whom death or injury claims could
be asserted against the Town, Company, or the Premises.
Town may require that any third parties performing work on
the Premises maintain such workers' compensation insurance
as well. Such insurance shall be maintained at Company's
sole cost and expense at all times when any work is in .
process and shall otherwise conform to the requirements of
this Lease for insurance.
(4) Notice of Completion. Company shall not use
any Improvement in any way without receiving a notice of
completion from Town.
(5) Notice of Changes in Plans. on completion of
any Improvement, Company shall give the Town notice of all
changes in the plans and specifications made during the
course of the work and shall at the same time deliver to the
Town "as built"drawings accurately reflecting all such .
changes; provided, no change that substantially alters the
final plans last approved by the Town shall be made without
the Town's prior written approval, which shall not be
unreasonably withheld.
ARTICLE 7
INDEMNITY AND INSURANCE
7.1 Indemnity. This Lease is made upon the express condi-
tion that the Company shall indemnify and hold harmless Town, and
its officers, agents and employees against any and all suits;
claims or actions arising out of Company's .use of the Premises or
from any act permitted, or any omission to act, in or about the
Premises or the Town Property by Company or its agents,
employees, contractors or invitees, including, but not limited
to, any injury or injuries to, or death or deaths of, persons or
property that may occur, or that may be alleged to have occurred
from any cause or causes whatsoever, while in, upon, about, or in
any way connected with the Premises during the term of this
Lease, or during any holdover tenancy thereof (except where
caused solely, exclusively and directly by the negligence of
Town, its employees or agents). Company further agrees to defend
any and all such actions, suits or claims and pay all charges of
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attorneys and all other costs and expenses arising therefrom or
incurred in connection therewith; and if any judgment be rendered
against the Town or any of the other individuals enumerated above
in any such action, Company shall, at its expense, satisfy and
discharge the same.
7.2 Waiver of Claims. Company waives any claims against
Town for injury to Company's business or any loss of income
therefrom, for damage to Company's property, or for injury or
death of any person in or about the Premises or the Town
Property, from any cause whatsoever, except to the extent caused
by Town's active negligence or willful misconduct.
7.3 Insurance.
(a) Workers Compensation.' Company shall procure and
maintain at all times during the term of this Lease, and any
holdover tenancy, workers compensation insurance in conformance
with the laws of the State of California and Federal laws where
applicable. Employers Liability Insurance shall not be less than
One Million'Dollars ($1,000,000.00) per accident or disease.
Prior to commencement of the term of the Lease, Company shall
deliver to Town a Certificate of Insurance which shall stipulate
that thirty (30) days advance written notice.of cancellation or "
material change shall be given to Town.
(b) Bodily Injury Death and Property Damage Liability
Insurance. Company shall also procure and maintain at all times
during the term of this Lease, and any holdover tenancy, compre-
hensive broad form General Public Liability Insurance (including
automobile operation) covering Company and Town for any liability
arising out of the use of, or occurring in, on, or about the
Premises. The policy(ies) shall include coverage for all
vehicles, licensed or unlicensed, on or off the Premises, used by
or on 'behalf ,-of Company during . the term of this Lease . or holdover
tenancy thereof. The policy(ies) shall be subject to a limit for
each occurrence of Five Million Dollars ($51000,000) naming as an
additional insured, the Town and its officers, employees and
agents. 'The Insurers) shall agree that its policy(ies) is
Primary Insurance and that it shall be liable for the full amount
of any loss up to and including the total limit of liability
without right of contribution from any other insurance covering
Town.
Inclusion of Town as an additional insured shall not in any
way affect its rights as respects any claim, demand, suit or
judgment made, brought or recovered against Company. Said policy
shall protect Company and Town in the same manner as though a
separate policy had been issued to each; but nothing in said
policy shall operate to increase the Insurer's liability as set
forth in the policy beyond the amount or amounts shown or to
which the Insurer would have been liable if only one interest had
been named as an insured_.
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Prior to commencement of the term of the Lease, Company
shall deliver to Town a Certificate of Insurance which shall
indicate compliance with the insurance requirements of this
paragraph and shall stipulate that thirty (30) days advance
written notice of cancellation or material change shall be given
to Town.
(c) Fire and Extended Coverage Insurance. Company
shall maintain a policy of standard fire and extended coverage
insurance on its Improvements on the Premises.
7.4 Waiver of Subrogation. Company waives any and all
rights of recovery against the Town, or against the officers,
employees, agents or representatives of Town, for loss of or
damage to the property of the Company or the Premises, to the
extent such loss or damage is insured against under any insurance
policy carried by Company.
ARTICLE 8
DAMAGE, DESTRUCTION AND TERMINATIQN
8.1 Destruction Due to Risk Covered by Insurance. If,
during the term of this Lease, the Premises are totally or
r partially destroyed from a risk required' to be covered by
insurance as described in Article 7, rendering Premises totally
or partially inaccessible or unusable, Company shall restore the
Premises to substantially the same condition as they were in
immediately before destruction, whether or not the insurance
proceeds are sufficient to cover the actual cost of restoration.
Such destruction shall not terminate this Lease. Company shall
immediately apply for all governmental approvals to restore the
Premises and ,complete the restoration within sixty (60) days .of
receiving'. the.'-equisite governmental approvals. If the existing
laws do not pei'mit the restoration, either party can terminate
this Lease immediately by giving notice to the other party.
8.2 Destruction Due to Risk Not Covered by Insurance. If,
during the term of this Lease, the Premises are totally or
partially destroyed from a risk not required to be covered by
insurance as described in Article 7, rendering the Premises
totally or partially inaccessible or unusable, Company shall
restore the Premises to substantially the same condition as they
were in immediately before destruction. Such destruction shall
not terminate this Lease. If the existing laws do not permit the
restoration, either party can terminate this Lease immediately by
giving notice to the other party. However, if the Cost of
restoration exceeds seventy five percent (75%) of the then
replacement value of the Premises destroyed, Company can elect to
terminate this Lease by giving notice to Town within fifteen (15)
days after determining the restoration cost and. replacement
value. If Company elects to terminate this Lease, Town, within
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fifteen (15) days after receiving Company's notice to terminate,
can elect to pay to Company at the time Town notifies Company of
its election, the difference between seventy five percent (75%)
of the replacement value of the Premises and the actual cost of
restoration, in which case Company shall restore the Premises.
on Town's making its election to contribute, each party shall
deposit immediately the amount of its contribution with the
trustee of its choice. If the destruction does not exceed
seventy five percent_(75%) of the then replacement value of the
Premises, Company shall immediately apply for all governmental
approvals to restore the Premises and complete the restoration
within sixty (60) days of receiving the requisite governmental
approvals. If Company elects to terminate this Lease as set
forth above, and Town does not elect to contribute toward the
cost of restoration as provided above, this Lease shall terminate
on the date Town notifies Company of its election not to
contribute.
8.3 Loss During Last Part of Term. If•destruction of the
Premises occurs during the last year of the term of this Lease,
either party can terminate this Lease by giving notice to the
t e than fifteen (15) days after the
other party no mor
destruction; except that, if within fifteen (15) days after the
destruction, Company can exercise the optionto extend the term
as provided herein and if there is no default under this Lease,
the Premises shall be restored as set forth in Sections 8.1 or
8.2 above.
8.4 Temporary Facilities. Town acknowledges and agrees
that it is necessary that Company maintain continuous -operation
on the Premises during the term of this Lease. Therefore, in the
event of damage which renders Company's Improvements inoperable
or unusable, and the Lease is continued pursuant hereto, Company
as hereinafter provided, shall have the right (subject to any
requiremen'ts`of law or governmental authority) to construct or.
install temporary facilities, including temporary or replacement
microwave dishes or antenna, if necessary, in or about the
Premises, in such locations as may be reasonably acceptable to
Town and in a manner which will not interfere with any repair or
reconstruction efforts or with other uses of the Town Property,
in order to continue operation. Town shall permit Company such
access, repair and maintenance rights as may be necessary to
allow Company to operate and maintain such temporary facilities
until the Premises have been sufficiently repaired to permit
Company to use the Premises, or until a substitute permanent
location acceptable to Town and Company has been agreed upon, and
construction of such substitute permanent facility has been
completed.
8.5 Termination - Advance Payments. Upon termination of
this Lease pursuant to this Article 8, Town shall retain the
prorated portion of any advance payments of rent through date of
MEW=
r
termination and shall immediately repay to Company without demand
the balance of any such advance payments.
8.6 Waiver. Town and Company waive the provisions of any
statutes which relate to termination of leases when leased
property is destroyed and agree that such event shall be governed
by the terms of this Lease.
ARTICLE 9
TAXES
9.1 Personal Propertv. Company shall pay prior to
delinquency all taxes, license fees, and public charges assessed
or levied against Company or Company's estate in this Lease or
Company's improvements, trade fixtures, furnishings, equipment
and other personal property.
9.2 Real Property. Company shall pay Company's share of
all Real Property Taxes (as defined in Section 9.3 below) which
become due during the Lease term; these Real Property Taxes shall
be due and payable to Town on or before the later of ten (10)
days prior to the delinquency thereof, or three (3) days after
the date on which Company receives a copy of the tax bill and
notice of Town's determination hereunder. Company's liability to
pay Real Property Taxes shall be prorated on the basis of a three
hundred and sixty five (365) day year to account for any fraction
or portion of a tax year included in the Lease term at the
commencement or expiration of the Lease.
9.3 Definition. The term "Real Property Taxes" as used
herein shall mean:
(a).: all taxes, assessments, levies and other charges,
general and'special, foreseen and unforeseen, now or hereafter
imposed by anygovernmental or quasi -governmental authority or
special district having the direct or indirect power to tax or
levy assessments, which are levied or assessed against or with
respect- to (i) the value, occupancy or use of the Premises and/or
the Improvements, (ii) any improvements, fixtures, equipment and
other real or personal property of Company that are an integral
part of the Premises, (iii) the use of the Premises,
Improvements, public utilities or energy within the Premises;
(b) all charges, levies or fees imposed by reason of
environmental regulation or other governmental control of the
Premises and/or the Improvements;
(c) new excise, transaction, sales, privilege or other
taxes now or hereafter imposed upon Town as a result of this
Lease; and
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(d) all costs and fees (including attorneys' fees)
incurred by Town in contesting any Real Property Taxes and in
negotiating with public authorities as to any Real Property Taxes
affecting the Premises.
If at any time during the Lease -term the taxation or
assessment of the Premises and/or the Improvements prevailing as
of the commencement of this Lease shall be altered, then any such
tax or charge, however designated, shall be included within the
meaning of the term "Real Property Taxes". If any Real Property
Taxes and based upon property or rents unrelated to the Premises
and/or the Improvements, then only that part of such tax that is
fairly allocable to the Premises and/or the Improvements, as
determined by Town, on the basis of the assessor's worksheets or
other available information,shall be included within the meaning
of the term "Real Property Taxes."
ARTICLE 10
UTILITIES
Company shall pay for all water, gas, heat, light, power,
telephone and other utilities and services supplied to the
Premises, together with any taxes thereon; provided that Town
shall pay for the water used for irrigation of the landscaping.
ARTICLE 11
SIGNS
Company shall not place any signs upon the Premises without
the prior written consent of the Town.
ARTICLE 12
ASSIGNMENT AND SUBLETTING
12.1 Town's Consent'Reguired. Company shall not voluntarily
or by operation of law assign, transfer, mortgage, sublet or
otherwise transfer or encumber all or any part of Company's
interest in this Lease or in the Premises, without Town's prior
written consent, which consent may be refused for any reason Town
deems appropriate. Town shall respond to Company's request for
consent thereunder in a timely manner and any attempted assign-
ment, transfer, mortgage, encumbrance or subletting without such
consent shall be void, and shall constitute a breach of this
Lease.
4
12.2 No Release of Company. No subletting or assignment as
approved by Town shall release Company of Company's obligation or
alter the primary liability of Company to pay the rent and to
perform all other obligations to be performed by Company here-
under. The acceptance of rent by Town from any other person
- 18 -
shall not be deemed to bea waiver by Town of any provision
hereof. Con_;ent to one assignment or subletting shall not be
deemed consent to any subsequent assignment or subletting. In
the event of default by any assignee of Company or any successor
of Company in the performance of any -of the terms hereof, Town
may proceed directly against Company without the necessity of
exhausting remediez: against said assignee. Town may consent to
subsequent assignments or subletting of this Lease or amendments
or modifications to this Lease with assignees of Company, without
notifying Company, or any successor of Company, and without
obtaining Company's consent thereto and such action shall not
relieve Company of litbility under this Lease.
ARTICLE 13
DEFAULTS: REMEDIES
13.1 Defaults. The occurrence of any one or more of the
following events shall constitute a material default or breach of
this Lease by Company.
(a) The abandonment of the Premises by Company.
(b) The failure by Company to make any payment of rent
or any other payment required to be made by Company hereunder, as
and when due, where such failure shall continue for a period of
ten (10) business days after written notice thereof from Town to
Company. In the event that Town serves Company with a Notice to
Pay Rent or Quit pursuant to applicable Unlawful Detainer
statutes, such Notice to Pay Rent or Quit shall also constitute
the notice required by this subparagraph.
(c.) The.failure by Company to observe or perform any
of the covenants, conditions•or provisions of this Lease in any
material respect to be observed or performed by Company, other
than those described in Section 13.1(b) above, where such failure
shall continue for a period of thirty (30) days after written
notice thereof from Town to Company; provided, however, that if
the .nature of Company's default is such that more than thirty
(30) days are reasonably required for its cure, then Company
shall not be deemed to be in default, if Company commenced such
cure within said thirty (30) day.period and thereafter diligently
prosecutes such cure to completion.
(d) The making by Company.of any general arrangement
or assignment for the benefit of creditors; Company's becoming a
"debtor" as defined in 11 U.S.C. § 101 or any successor statute
thereto (unless, in the case of a petition filed against Company,
the same is dismissed within sixty (60) days); the appointment of
a trustee or receiver to take possession of all or substantially
all of Company's assets located at or on the Premises or of
Company's interest in this Lease where possession is not restored
to Company within thirty (30) days; or the attachment, execution
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or other judicial seizure of all or substantially all of
Company's assets located at or on the Premises or of Company's
interest in this Lease, where such seizure is not discharged
within thirty (30) days.
(e) A violation by Company of the Franchise Agreement
or of Town Ordinance No. 323.
(f) Three understatements of Gross Annual Revenues by
Company by more than two percent (2%), as set forth in
Section 15.
13.2 Remedies. In the event of any material default or
breach by Company, Town may at any time thereafter, with or with-
out notice or demand, and without limiting Town in the exercise
of any right or remedy which Town may have by reason of such
default or breach:
(a) Terminate Company's right to possession of the
Premises by any lawful means, in which case this Lease shall
terminate and Company shall immediately surrender possession of
the Premises and Improvements to Town. In such event, Town shall
be entitled to recover from Company all damages incurred by Town
by reason of Company's default including, but not limited to, the
cost of recovering possession of the Premises and Improvements,
expenses of reletting, including necessary renovation and altera-
tion of the Premises and Improvements, reasonable attorneys'
fees, the worth,at the time of the award of the unpaid rent that
had been earned at the time of termination of this Lease, and the
worth at the time of award of the amount by which the unpaid rent
for the balance of the term after the time of such award exceeds
the amountof such rental loss for the same period that Company
proves could be reasonably avoided.
(b) Maintain Company's right,to possession, in which
case this'Lease shall continue in effect whether or not Company
shall have abandoned the Premises. In such event Town shall be
entitled to enforce all of Town's rights and remedies under this
Lease, including the right to recover rent as it become due
hereunder.
(c) Pursue any other remedy now or hereafter available
to Town under the laws or judicial decisions of the State of
California.
13.3 No Relief From Forfeiture After Default. Company
waives all rights of redemption or relief from forfeiture under
California Code of Civil Procedure §§ 1174 and 1179, and any
other present or future law, in the event Company is evicted or
Town otherwise lawfully takes possession of the Premises by
reason of any default or breach of this Lease by Company.
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ARTICLE 14
TOWN'S LIABILITY
The term "Town" as used herein shall mean the Town only
while the Town is the owner of the fee title of the Premises. In
the event of any transfer of such title or interest, the Town
(and in case of any subsequent transfer, then the grantor) shall
be relieved from, after the date of such transfer, all liability
as respects its obligations thereafter to be performed, provided
that any funds in the hands of Town at the time of such transfer,
in which Company has an interest, shall be delivered to the
Town's grantee.
ARTICLE 15
INSPECTION OF COMPANY RECORDS
Company shall keep at its principal office, true and
complete records and accounts of all Gross Annual Revenues, as
defined in Section 3.25 of Town Ordinance No. 323, and Company
agrees to give Town access during normal business hours to such
records and accounts. Company agrees that it will keep and
preserve for at least three (3) years after the end of each.
calendar year all records and accounts of all Gross Annual
Revenues. Town shall have the right, at any time, and from time
to time and upon reasonable notice, to audit the books of
account, and any other related documents, including, but not
limited to bank statements, documents, records, returns,
invoices, papers and files of Company relating to,the Gross
Annual Revenues of Company. On request by Town, Company shall
make all such materials available for examination at the
Company's principal office. If such an audit discloses that the
Gross Annual Revenues shown by Company's statement have been
understate4l by more than two percent (2%), then Company shall pay
to Town the .cost of such audit. Town's right to have such an
audit with respect to any calendar year shall expire three (3)
years after Company's statement for such year has been delivered
to Town. It shall be considered a default under this Lease if
there should be more than three (3) such audits during the term
of this Lease which reveal an understatement of Gross Annual
Revenues by Company by more than two percent (2%).
ARTICLE 16
INTEREST ON PAST -DOE OBLIGATIONS
Except as expressly herein provided, any amount due to Town
not paid when due shall bear interest at the lesser of twelve
percent (12%) per year or the maximum rate then allowable by law
from the date due.
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C
ARTICLE 17
HOLDING OVER
If Company remains in possession of the Premises or any part.
thereof after the expiration of the term or option term hereof,
such occupancy shall be a tenancy from month to month with all
the obligations of this Lease applicable to the Company and at a
monthly rental obligation of two (2) times the per month rental
obligation in effect at the time of expiration. The rental
obligation for purposes of this Section shall include Base Rent,
Extension Rent, and Percentage Rent, as adjusted.
ARTICLE 1S
TOWN'S ACCESS
Town and Town's agents shall have the right to enter the
Premises at reasonable times, upon request, for the purpose of
'inspecting the same, showing - the same to prospective purchasers,
lenders,. or lessees, and making such alterations, repairs,
improvements or additions to the Premises as Town may deem
necessary. Town may at any time place on or about the Premises
any ordinary "For Sale" signs and Town may at any time during the
last 120 days of the term hereof place on or about the Premises
any ordinary ".For Lease" signs, all without rebate of rent or
liability to Company. '
ARTICLE 19
OUIET.POSSESSION
Upon Company's paying the rent for the Premises and
observing and performing all of the covenants, conditions and
provisions on.Company's part to be observed and performed
hereunder, Company shall have quiet possession of the Premises
for the entire term hereof -subject to all of the provisions of
this Lease..
ARTICLE 20
EASEMENTS
Town reserves to itself the right, from time to time,to
grant such easements, rights and dedications that Town deems
necessary or desirable, and to cause the recordation of parcel
maps and restrictions, so long as such easements, rights,
dedications, maps and restrictions do not materially interfere
with the use of the Premises by Company. Company shall sign any
of the aforementioned documents upon request of Town and failure
to do so shall constitute a material breach of this Lease.
22 -
ARTICLE 21
GENERAL PROVISIONS
21.1 Severability. The invalidity of any provision of -this
Lease as determined by a court of competent jurisdiction, shall
in no way affect the validity of any other provision hereof.
21.2 Time of Essence. Time is of the essence of this Lease.
21.3 Additional Rent. Any monetary obligations of Company
to Town under the terms of .this Lease shall be deemed to be rent
and all references herein to "rent" shall be deemed to include
the Base Rent and all other sums paid or payable by Company to
Town hereunder.
21.4 Entire Agreement. Modification. This Lease -contains
all agreements.of the parties with respect to any matter
mentioned,herein. %No.prior agreement or understanding pertaining
to any such matter shall be effective. This Lease may be
modified in writing only, signed by the parties in interest at
the time of the modification.
21.5 No Warranty. Except as otherwise stated in this Leasej
Company hereby acknowledges that neither the Town nor any
employees or agents of the Town has made any oral or written
warranties or representations to Company relative to the
condition or use by Company of said Premises and Company
acknowledges that Company assumes all responsibility regarding
the Occupational Safety and Health Act, the legal use and
adaptability of the Premises and compliance with all applicable
laws and regulations in effect during the term of this Lease.
21.6 Notices. Any notice required or permitted to be given
hereunder,'.including a Notice to Pay Rent or Quit, or. Notice to
Terminate, shall be in writing and may be given by personal
delivery or by certified mail, and if given personally or by
mail., shall be deemed sufficiently given if addressed to Company
or to Town at the address noted below:
COMPANY: Pacific Sun Cable Partners, L.P.
c/o Sun West Cable, Inc.
5976 W. Las Positas Blvd. 1202
Pleasanton, CA 94566-4088
Attention: David Kinley, President
TOWN: Town of Los Altos Hills
26379 Fremont Road
Los Altos Hills, CA 94022
Attention: City Manager
Each notice shall specify the paragraph of this Lease, if any,
pursuant or with reference to which it is given. Either party
may by notice to the other specify a different address -or contact
- 23 -
41
r
person for notice purposes. A copy of all notices required or
Permitted to be given to Town hereunder shall be concurrently
transmitted to such party or parties at such addresses as Town
may from time to time hereafter designate by notice to Company.
Notice given under this section shall be deemed in compliance
with applicable statutory notice requirements, including Code of
Civil Procedure Section 1162 and Civil Code Section 1953.
21.7 Waivers. No waiver by Town or Company of any provision
hereof shall. be deemed a waiver of any other provision hereof or
of any subsequent breach by Town or Company of the same or any
other provision. Town's consent to, or approval of, any act
shall not be deemed to render unnecessary the obtaining of Town's
consent to or approval of any subsequent act by Company. The
acceptance of rent hereunder by Town shall not be a waiver of any
preceding breach by Company of any provision hereof, other than
the failure of Company to pay the particular rent so accepted,
regardless of Town's knowledge of such preceding breach at the
time of acceptance of such rent.
21.8 Cumulative Remedies. No remedy or election under this
Lease shall be deemed exclusive but shall, wherever possible, be
cumulative with all other remedies at law or in equity.
21.9 Binding Effect: Choice of Law. Subject to any provi-
sions hereof restricting assignment or subletting by Company and
subject to the provisions of Section 12, this Lease shall bind
the parties, their personal representatives, successors and
assigns. This Lease shall be governed by the laws of the State
of California applicable to leases entered into, and to be wholly
performed, within the State. The language of all parts of this
Lease shall be construed with its fair meaning and not strictly
for or against the Town or Company.
21. 10,. Conditions to Effectiveness of Lease. The approval
of the City Council of Town constitutes an express condition
precedent to the effectiveness of this Lease.
21.11 Attorneys' Fees. If either party brings an action to
enforce the terms hereof or declare rights hereunder, the
prevailing party in any such action, on trial or appeal, shall be
entitled to its reasonable attorneys' fees and court costs to be
paid by the other party.
21.12 Authority. Each individual executing this Lease on
behalf of Company and Town represents and warrants that he or she
is duly authorized to execute and deliver this Lease on behalf of
said party.
21.13 Captions. The captions used herein are for conveni-
ence only and are not a part of this Lease and do not in any way
amplify the terms or provisions hereof.
- 24 -
21.14 Memorandum of Lease. Within ten (10) days of the
approval by the parties of the survey, pursuant to Section 4.5,
Company shall execute and acknowledge a Memorandum of Lease and
Easement prepared by Town. Town shall promptly record the
Memorandum in the County Recorder's Office.
IN WITNESS WHEREOF, the parties have executed this Lease on
the dates set forth below.
ATTEST:
a
City Clerk
APPROVED AS TO FORM:
�4
City.Attorney
PB\MAS\14949018.W50
"TOWN"
OF LOS ALTOS HILLS
CBy::.
403ar
.Dated:
"COMPANY"
PACIFIC SUN CABLE PARTNERS,
L.P.
By: Sun West Cable, Inca
Its: General Partner
By;
David D. Kinley,
President
Dated: ols-4-
- 25 -
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