File ID No.: CA6108
FIRST AMENDMENT TO LEASE AGREEMENT FOR CATV OPERATIONS (LEASE) This First Amendment ("First Amendment") to the Lease Agreement for CATV Operations is entered into as of May - → 2022, but effective as of January 1, 2022 (the "First Amendment Effective Date"), between the City of Fullerton, a municipal corporation ("Lessor") and Spectrum Pacific West, LLC, a Delaware limited liability company ("Lessee"), formerly known as Time Warner Cable Pacific West LLC.
WHEREAS, Lessor and Lessee entered into the Lease Agreement for CATV Operations on January 1, 2017, renewed by letter dated July 23, 2018, further renewed by letter agreement dated November 26, 2019, further renewed by Lease Extension letter agreement dated October 27, 2020 (collectively, the "Lease") for the Demised Premises (as defined in the Lease) located on a portion of the Land (as defined in the Lease) at 2011 N. Acacia Avenue, Fullerton, California.
NOW THEREFORE, for valuable consideration, the receipt and adequacy of which are hereby acknowledged, Lessor and Lessee agree to amend the Lease as follows:
1. Definitions. Any capitalized term used in this First Amendment, but not defined in this First Amendment, has the meaning given such term in the Lease.
Term. Section 5 of the Lease titled "Term" is amended to extend the Term of the Lease from January 1, 2022 through, and including December 31, 2024 (the "Fourth Renewal Term"). Section 5 is further amended to provide Lessee the option to renew the Term of the Lease for two (2) additional terms of five (5) years each (the "Fifth Renewal Term" and "Sixth Renewal Term" respectively, and each an "Additional Renewal Term").
Lessee must exercise the option with respect to each Additional Renewal Term, if at all, by giving notice of exercise to Lessor on or before September 1, 2024 for the Fifth Renewal Term and September 1, 2029 for the Sixth Renewal Term.
Each Additional Renewal Term will be on the same terms and conditions as the Lease, except that the Rent will be payable as set forth in Section 3 titled "Rent" below.
Rent. Section 6 of the Lease titled "Rent" is amended to establish Rent for the Fourth
PERIOD MONTHLY RENT
01/01/2022 - 12/31/2022 $4,173.13
01/01/2023 - 12/31/2023 $4,298.32
01/01/2024 - 12/31/2024 $4,427.27
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In addition to the foregoing, within 30 days after execution of this First Amendment, Lessee will pay to Lessor $486.20, which constitutes the difference between the Rent that Lessee has actually paid for the period of January 1 - April 30, 2022 based on the prior rental rate in the Lease, and the Rent Lessee owes pursuant to the rental rate set forth in this Section. Commencing on January 1, 2025, and continuing through the duration of the Fifth Renewal Term and Sixth Renewal, if exercised, monthly Rent will increase by three (3%) percent annually.
Lessor agrees that Lessee may make its monthly Rent payments via ACH transfer or any other form of direct deposit (and Lessor will provide Lessee with all bank instructions and other information needed for such ACH transfer or other direct deposit payment).
4. Lessee Insurance. Section 21(a)-(d) of the Lease titled "Insurance" is deleted in its entirety and replaced with the following language:
(a) At all times during the Term, Lessee, at its own expense, will maintain the following minimum scope of insurance coverage from insurers authorized to do business in the state where the Demised Premises is located:
(1) Commercial General Liability insurance with an occurrence limit of not less than $1,000,000 per occurrence and an aggregate of $2,000,000 for bodily njury, personal injury, and property damage. Lessee Will name Lessor a an additional insured and, upon Lessor's request, will provide Lessor wit certificates evidencing such coverage.
(2) Automobile Liability Insurance for all activities of Lessee arising out of or in connection with work to be performed under this Lease, including coverage for any owned, hired, non-owned or rented vehicles in an amount not less than $2.000,000 combined single limit for each accident (3)
the Demised Premises is located.
(4) "All Risk" Property Insurance for Lessee Facilities and Lessee improvements and betterments for their full replacement value. The policy shall contain the following provisions: (1) Lessor shall be loss payee; (2) the insurer shall waive all rights of recovery against Lessor. (b) All insurance coverages shall be confirmed by execution of endorsements and certificates of insurance. Lessee is required to file the completed policy endorsements and certificates with Lessor within 30 days of the execution date of this First Amendment, and to thereafter maintain current endorsements on file with Lessor. The completed endorsements anc certificates of insurance are subject to the approval of Lessor (c) The required insurance policies shall contain, or be endorsed to contain, the following provisions:
1. Commercial General Liability, Business Automobile Liability Policies. 2 File ID No.: CA6108
a. The Lessor, its officers, officials, employees, and volunteers are to be covered as an additional named insured as respects: liability arising out of activities performed by or on behalf of the Lessee; products and completed operations of the Lessee; premises owned, occupied or used by the Lessee; or automobiles owned, leased, hired, or borrowed by the Lessee.
b. The Lessee's insurance coverage shall be primary insurance as respects the Lessor, its elected and appointed officials, officers, agents, employees, and volunteers.
Any insurance or self-insurance maintained by the Lessor, its officers, elected and appointed officials, agents, employees, or volunteers shall be excess of the Lessee's insurance and shall not contribute with it.
c. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to the Lessor, its officers, officials, agents, employees, or volunteers.
d. The Lessee's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability.
2. Workers' Compensation.
The insurer shall agree to waive all rights of subrogation against the Lessor, its officers, elected and appointed officials, agents, employees, and volunteers for losses arising from work performed by the Lessee for the Lessor.
3. All Coverages.
Each of insurance policy required by this section shall be endorsed to state that coverage shall not be canceled by either party, except after thirty (30) days' prior written (except for nonpayment) for which a ten (10) day notice is required). personal property. Lesse wil hall the right da said it bie fixtune, equipection and othet program of self-insurance, subject to Lessor approval.
5. Emergency Default Notice. Section 26 (Notices") of the Lease is amended by adding the following language to the end of the first paragraph:
Notwithstanding the foregoing, during an Emergency Default, Lessee may give notice to Lessor via email at: [email protected]; or via telephone to the following 24-hour emergency line: 714- 738-3103 and the same will be deemed to have satisfied the notice requirements under the Lease.
Either Lessor or Lessee may add additional addresses or change its address for purposes of receipt of any such communication by giving 10 days" prior written notice of such change to the other party in the manner prescribed in this Section.
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6. Disputes. The parties agree that if any claim, controversy or dispute arising out of or relating to this Lease (each such claim, controversy or dispute, a "Dispute") is not resolved in the ordinary course of business, either party may require escalation by each party to appropriate representatives at a higher level of management than those involved in the day-to-day administration of the Lease ("Escalation"). Such higher level representatives will thereafter attempt, in good faith, to resolve such Dispute within 30 days (or such longer period as the parties may agree upon) after Escalation. Each party agrees that it will not have the right to demand arbitration or commence any legal proceedings without first attempting to resolve the applicable Dispute through Escalation.
7. Broker. Lessor and Lessee respectively represent and warrant to each other that neither of them has consulted or negotiated with any broker or finder with regard to the Demised Premises or the preparation of this First Amendment. Lessor and Lessee each agree to indemnify, defend, and hold harmless the other from and against any and all claims, demands, actions, causes of action, liabilities, losses, costs, and expenses (including, without limitation, court costs and disbursements, and actual attorneys' fees reasonably incurred) arising from or related to any claim by any broker, agent or other person or entity, for any commission, fees, or other form of compensation, reimbursement or consideration, with regard to the Demised Premises, the preparation of this First Amendment or the transactions contemplated hereby.
Estoppel. Lessor hereby represents and warrants that as of the date of execution of this First Amendment: (a) Lessee is not in default or breach of the Lease; (b) no event has occurred which with the passage of time or the giving of notice would constitute such a breach or default of the Lease; and (c) all rent, additional rent and other amounts due and payable under the Lease have been paid in full through and including April 30, 2022.
Confirmation of Lease. Lessor and Lessee confirm and ratify in all respects, the terms and conditions of the Lease, as amended by this First Amendment. In the event of any conflict or inconsistency between any of the provisions of this First Amendment and any of the provisions of the Lease, the provisions of this First Amendment will govern.
10. Drafting. Lessor and Lessee each acknowledges that this First Amendment was fully negotiated by the parties and that no provision of this First Amendment will be interpreted in favor of either Lessor or Lessee, or against either Lessor or Lessee, merely because such party or its legal representative or advisor drafted such provision.
11. Counterparts: Facsimiles. This First Amendment may be executed in counterparts, each of which (once executed) will constitute an original and all of which together (once executed) will constitute one and the same document. This First Amendment may be signed and delivered by facsimile or electronically, and the same facsimile or "pdf" signatures will constitute original signatures with all force and effect of law.
12. Lender's Consent. Lessor hereby represents and warrants that: (a) no lender consent is required for this First Amendment; and (b) the effectiveness of this First Amendment is not conditioned upon Lessor receiving any lender's consent.
All other terms, conditions, and provisions of the Lease not in conflict with this First Amendment shall remain in full force and effect.
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Lessor and Lessee have executed this First Amendment to be effective as of the First Amendment Effective Date.
LESSOR: LESSEE:
CITY OF FULLERTON SPECTRUM PACIFIC WEST, LLC
By: Charter Communications, Inc.,
its Manager
By: MM
By:
Name: Name: Carrie E. Walters
Title: Title: VP, Real Estate and Property Administration APPROVED AS TO FORM:
By:
Richard D/Jones
CITY ATTORNEY