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HomeMy WebLinkAbout06/06/1990, C-7 - RENEWAL OF LEASE FOR SITE OF AN EARTH STATION RECEIVE ONLY FACILITY AT THE CITY WASTEWATER TREATMEN EETIN City Of San LUIS OBI SPO M jume oaTE COUNCIL AGENDA REPORT ITEM NUMBER: - FROM: WII.LIAM HETLAND (►, PREPARED BY: CASSIDY ROWLAND UTILITIES DIRECTOR ADMINISTRATIVE ANALYST SUBJECT: RENEWAL OF LEASE FOR SITE OF AN EARTH STATION RECEIVE ONLY FACILITY AT THE CITY WASTEWATER TREATMENT PLANT WITH KCBX, INC. (KCBX) CAO RECOMMENDATION: ADOPT RESOLUTION AUTHORIZING THE MAYOR TO EXECUTE AN AGREEMENT WITH KCBX, INC., FOR LEASE OF A SITE FOR AN EARTH STATION RECEIVE ONLY FACILITY AT THE WASTEWATER TREATMENT PLANT IN THE AMOUNT OF ONE DOLLAR PER YEAR FOR THE TERM OF TEN YEARS DISCUSSION: The City entered into an agreement with KCBX, Inc: a non-profit public radio station (KCBX) in January, 1979, for lease of a site at the Wastewater Treatment Plant for an earth station receive only facility for reception of satellite radio signals. The agreement granted the option of lease renewal for the same term and conditions for an additional term of ten (10) years provided KCBX gave notice of its intention to exercise the option not less than sixty (60) days prior to lease expiration. Staff has discussed the renewal with Mr. Frank Lanzone, Jr., KCBX President/General Manager and has determined the City was notified of the intent to renew the lease in late 1988 within the required time frame. Correspondence on file indicates a meeting was scheduled with City representatives on January 30, 1989, to discuss renewal of the lease. At this meeting KCBX was requested to provide documentation of any other similar lease arrangements, and KCBX complied with this request (see attachment 1), which are current to date. No further action has been taken since that time. The site leased by KCBX has no other competing uses and the use has no impact on the planned wastewater treatment plant upgrade. KCBX has fully conformed with all requirements of the lease for the past 10 years. Therefore, staff recommends the terms and conditions of the new agreement remain unchanged from the previous agreement. CONCURRENCES:Finance Department concurs with the recommendations in this report. FISCAL IMPACT: Lease payments are one dollar per year and as such there are no fiscal impacts to the City from the agreement. Attachments: Correspondence Resolution Agreement i RESOLUTION NO. (1990 Series) A RESOLUTION OF THE COUNCIL OF THE CITY OF SAN LUIS OBISPO APPROVING AN AGREEMENT BETWEEN THE CITY AND KCBX, INC. (KCBX) FOR THE LEASE OF A SITE FOR AN EARTH STATION RECEIVE ONLY FACILITY AT THE CITY WASTEWATER TREATMENT PLANT WHEREAS, KCBX is a non-profit public service radio station, and WHEREAS, KCBX has been a lessee of good record since January 2, 1979, at the treatment plant site, and WHEREAS, the City wishes to continue lease of the site for the purposes of an earth station receive only facility for KCBX. NOW, THEREFORE, be it resolved, the City Council of San Luis Obispo does hereby approve that certain agreement between the City of San Luis Obispo and KCBX, Inc, (KCBX) for lease of a site at the wastewater treatment plant. Upon motion of , and seconded by , and on the following roll call vote: AYES: NOES: ABSENT: the foregoing resolution was passed and adopted this day of , 1990. Mayor Ron Dunin ATTEST: City Clerk Pam Voges j LEASE This agreement, made and entered into this 6th day of June, 1990, by and between THE CITY OF SAN LUIS OBISPO, a municipal corporation and political subdivision of the State of California ("City") and KCBX, INC. , a California non-profit corporation, operator of Radio Station KCBX ("KCBX") WITNESSETH: 1. City leases to KCBX, and KCBX hires from City, certain real property located in the City of San Luis Obispo, San Luis Obispo County, California, being such portion of the premises of the San Luis Obispo City Waste Water Treatment. Plant, as previously incorporated in the lease dated January 2, 1979 and incoported herein by this reference as though herein set forth in its entirety. 2. This lease shall be for a term of ten (10) years, commencing on June 6. 1990 and ending on June 1 . 2000 . 3. KCBX agrees to pay City as rent for this lease the sum of ONE DOLLAR AND NO/100 ($1.00) per year during the term of this lease which rent shall be payable annually during the term of this lease. 4 . KCBX shall have the option to renew this lease on the same terms and conditions as appear herein on the expiration of the term of this lease for an additional term of ten (10) years. C73 1 it Agreement with KCBX Page 2 KCBX shall give City notice of its intention to exercise the foregoing option not less than sixty (60) days prior to the expiration of the term of this lease. 5. City shall be entitled to make any use of the leased premises which is not inconsistent with the purposes for which this lease is made, and in this respect City hereby specifically agrees that neither it or its agents, employees, or assigns, whomsoever, shall perform any act either on the leased premises or on the premises on which the leased premises are a part which will impair or interfere with the use of the leased premises as a radio signal receiving site by KCBX. 6. KCBX shall be entitled to use the premises herein leased solely for the purpose of installing and operating on the premises a National Public Radio Earth Station Receive Only Terminal facility as may be necessary or convenient for the reception of satellite radio signals. 7. City shall provide a right-of-way affording KCBX reasonable ingress and egress to the premises being leased. KCBX shall improve, if necessary, and maintain the right-of-way provided. KCBX shall also be entitled to an easement for full utilities and telephone on, over, and across the right-of-way provided. S. KCBX shall pay before delinquency all taxes, assessments, licenses, and other charges that are levied and assessed against G��h' Agreement with KCBX Page 3 KCBX's personal property installed on or located in or on the leased premises and against the real property leased - under this agreement, including any and all possessory interest taxes that become payable during the time of this lease. This clause shall not be construed to impose upon KCBX any duty to pay any taxes attributable to property not owned or used by it. 9. KCBX shall make all arrangements for and pay for all utilities and services furnished to or used by it on the leased premises, including, without limitation, gas, electricity., water, telephone service, and trash collection, and for all connection charges. lo. KCBX shall not assign this lease in whole or in part nor sublet the premises in whole or in part without the written consent of City first had and obtained. City shall. be under no obligation to grant said consent. Any dissolution, merger, consolidation, or other reorganization of KCBX shall be deemed to be a voluntary assignment within the meaning of this clause. . 11. No interest of KCBX in this lease shall be assignable by operation of law. • Each of the following acts shall be considered . an involuntary assignment: (a) If KCBX is or becomes bankrupt or insolvent, makes an assignment for the benefit of creditors, or institutes a J �1 U Agreement with KCBX Page 4 proceeding under the Bankruptcy Act in which KCBX is adjudicated a bankrupt; (b) If a writ of attachment or execution is levied on this lease; (c) If, in any proceeding or action to which KCBX is a party, a receiver is appointed with authority to take possession of the premises. Any involuntary assignment shall constitute a default by KCBX and City shall have the right to elect to terminate this lease, in which case this lease shall not be treated as an asset of C> KCBX, except that KCBX shall have sixty (60) days in which to cure any default as defined above by terminating any bankruptcy or insolvency proceedings, releasing any writ of attachment or execution, and terminating the power of any receiver appointed with authority to take possession of the premises. 12. KCBX, as a condition to any rights under this lease, must establish and maintain its qualifications as a non-profit .organization under California State Franchise Tax laws. 13 . KCBX agrees to keep said premises in a clean, wholesome condition, free from rubbish, garbage and like accumulations of waste, and KCBX agrees at all times to comply with all State, federal and local rules and regulations with reference to the operation and occupation of the � . p p premises in the conduct of the Agreement with KCBX Page 5 business thereon, and to use its best efforts to keep down and to prevent the spread of all noxious weeds and pests, except it shall have no responsibility in these respects for the acts of anyone other than itself, its agents, and its employees. 14. City shall have, the right at all reasonable times to enter upon the premises for the purpose of inspecting the same, determining that all the terms, covenants and conditions of this lease are being kept and performed by KCBX.. 15. KCBX shall hold City harmless from any and all damages arising out of any damage to any person or property occurring in, on or about the leased premises, except that City shall beliable to KCBX for damage resulting from the acts or omission of City or its authorized representatives. City shall hold KCBX harmless from all damages arising out of any such damage. The parties' obligation under this clause to indemnify and hold the other party harmless shall be limited to that sum which exceeds the amount of insurance proceeds, if any, received by .the party being indemnified. Lessee at its cost shall maintain public liability and property damage insurance with a single limit of $1, 000, 000. 00 insuring against all liability of KCBX and its authorized representatives arising out of and in connection with KCBX's use or occupancy of the premises. The insurance provided. shall be primary to City's insurance coverage. All public �r-8 Agreement with KCBX Page 6 liability insurance and property damage insurance shall insure performance by KCBX of the indemnity provisions of this clause. The parties hereto hereby release each other from any and all claims which either may have against the other which may supply the basis for a subrogation claim -by anyone insuring either. 16. Time is of the essence of this agreement. 17. Notwithstanding any provisions herein to the contrary City reserves the right to terminate this agreement without cause on six (6) months written notice to KCBX. In the event of a. termination under the provisions of this section or under the provisions of any other section herein, within thirty (30) days following the termination date KCBX shall remove all its equipment and other materials from the leased premises and shall return the leased premises and appurtenances, including but not limited to irrigation systems, to the condition which existed thereon prior to the execution of this agreement, all subject to the approval of City Administrative Officer or designee and at expense of KCBX. 18. Each of the terms, covenants, conditions of this lease are mutual and dependant, and any breach of any of the said terms, covenants or conditions shall constitute grounds for the termination, cancellation, or forfeiture of this lease. In the event of any such breach of any of the terms, covenants, and A_y 9 -1 t Agreement with KCBX r Page 7 conditions hereof, City shall have the right to re-enter the said premises, with or without the use of legal process, and may thereafter have and hold the same as in their first and former state, free from any rights or claims of KCBX by reason of this lease; provided, however, that KCBX shall have a reasonable opportunity in which to cure any defaults of any of the terms, covenants, or conditions of this lease. 19. In the event it becomes necessary for City to commence any action or proceeding in law or equity to collect any payments of rental due herein, or to enforce any of the other terms, covenants, or conditions hereof, or to declare a forfeiture of this lease, or to enforce any other right of City under the terms of the lease, KCBX agrees that in such event it will pay all costs of such suit, action, or proceedings, including a reasonable amount as and for attorney's fees, if City shall prevail in any such proceedings. 20. This lease shall be subject to and subordinate to all laws, rules and regulations of the Federal Communications Commission, the United States, the State of California and City of San Luis Obispo, including any and all conditions imposed by the City Council and City boards and commissions. �T/o Agreement with KCBX Page 8 21. This lease shall extend to and be binding upon the parties hereto, their representatives, assigns and successors, whomsoever. 22. Any notice required or permitted to be given or served under the terms hereof shall be deemed to be delivered and served when deposited in the United States mail, certified mail, return receipt requested, postage prepaid, addressed as follows: CITY: City of San Luis Obispo 955 Morro Street San Luis Obispo, CA 93401 KCBX: KCBX, Inc. 4100 Vachell Lane San Luis Obispo, CA 93401 23. This lease contains the entire agreement of the parties on the matters covered and it may not be modified except by a writing signed by the parties hereto. 24. This lease shall be subject to the approval of the Federal Communications Commission of the United States, and should the Federal Communications Commission refuse to approve this lease, then the rights of the parties hereto shall cease and determine, and this lease shall be of no further effect. Lessee hereby agrees to make application for the foregoing approval forthwith on the application on this and prosecute the application diligently. IN WITNESS WHEREOF, the parties have executed this lease on the date first above written. KCBX, INC. By: Chairman of the Board of Directors KCBX, Inc. CITY OF SAN LUIS OBISPO, a municipal corporation Mayor Ron Dunin ATTEST: f� City Clerk Pam Voges City A inistrative Officer t tt rn Finance Director Utilities Director liEhKCBX ® CENTRAL COAST PUBLIC RADIo f February 2, 1989 Mr . Doug Marks , Manager Wastewater Division City Of San Luis Obispo 25 Prado Road San Luis Obispo, CA 93401 Dear Doug: Public Radio KCBX wishes to renew the lease between KCBXand the City for our sate.11iteezirth station site on Prado Road. _ By way of background, former KCBX manager Steve Burrell approached City Council members in late 1979 to gain their support for a long term lease that would be of very little cost to KCBX. Thus, the $1 per year lease and a waiver of all other required permit/report fees in 1980. It is my hope that the City Council will continue this policy as KCBX continues to be an asset to City residents by broadcasts of news, local issues, public affairs, classical music and jazz.. KCBX retains its status as a non-profit California corporation. Although the site is valuable to KCBX because of its location, it is certainly not desirable for most similar uses due to it's proximity to the wastewater plant and its relatively far distance from other entities that would require such a site. In reviewing our present lease arrangements here is how KCBX is now charged: s Transmitter site at Cuesta Peak : Leased from Sonic Cable Television -- no charge. . • Translator sites: Cambria Water District -- electricity charge ONLY. Unocal (Avila Beach) -- $200/year. KEYT Channel 3 (Santa Barbara) -- no charge . Bud Northshore Communication (Santa Barbara) -- no charge. . 4100 Vachell Lane • San Luis Obispo, GA 93401 (8051 544-K76X �/� KCBX provides a valuablerservice to Central Coast residents. hope the City of San Luis Obispo will 1continue to recognize that fact by extending the favorable lease agreement without increasing the rent. Thank you for your assistance in this matter. Please let me know if you have any questions or require further documentation. Sincerely, Frank R. Lanzone President b General Manager FRL: jmp