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HomeMy WebLinkAboutCityMgrForm.1472.08-01-1979CITY MANAGER FORM ORDINANCE NO. AN ORDINANCE APPROVING THE FORM OF A TWO-WAY RADIO ANTENNA TOWER AGREEMENT BETWEEN THE CITY OF CAPE GIRARDEAU, MISSOURI AND MISSOURI UTILITIES COMPANY, AUTHORIZING THE MAYOR TO EXECUTE, AUTHORIZING THE PAYMENT OF A SUM OF MONEY WHEREAS, Missouri Utilities Company owns a water storage tank on Gordonville Road in the City of Cape Girardeau, Missouri; and WHEREAS, the City of Cape Girardeau, Missouri desires to mount on said water tower two-way radio antennas; and WHEREAS, the said parties desire to enter into an Agreement for said purpose; NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF CAPE GIRARDEAU, MISSOURI, AS FOLLOWS: SECTION 1. The "Two -Way Radio Antenna Tower Agreement", copy attached hereto marked Exhibit "A", between the City of Cape Girardeau, Missouri and Missouri Utilities Company, is approved as to form. SECTION 2. The Mayor of the City of Cape Girardeau, Missouri, is hereby authorized and directed to execute said Agreement, copy attached hereto marked Exhibit "A", for and on behalf of the City of Cape Girardeau, Missouri. SECTION 3. The payment of a sum of money by the City of Cape Girardeau, Missouri to Missouri Utilities Company is hereby authorized to be made in accordance with the terms and provisions of said Agreement. SECTION 4. This Ordinance shall be in full force and effect ten days after its passage and approval. PASSED AND APPROVED THIS f ,s DAY OF 1979. ATTEST: MAYOR CITY CLERKpI"�' TWO-WAY RADIO ANTENNA TOWER AGREEMENT This agreement made this day of , 1979, between Missouri Utilities Company, herein called LICENSOR, and City of Cape Girardeau, Missouri, herein called LICENSEE, and having its office at 401 Independence Street, Cape Girardeau, Missouri. WITNESSETH: WHEREAS, Licensee requires the use of two-way radio communication equipment in the conduct of its business, and WHEREAS, Licensee requires shelter for its transmitters and an elevated location for its two-way radio antennas, and WHEREAS, Licensor owns a building suitable for housing the transmitters, and a tower suitable for mounting two-way radio antennas, both at the location of its water storage tank on Gordonville Road, and WHEREAS, permission to install its transmitter in Licensor's building and attach its antennas to Licensor's tower is subject to available space and to prior rights granted under the terms of existing agreements with other users, and WHEREAS, Licensor is willing to permit, to the extent covered herein the installation of Licensee's antennas to Licensor's tower, where in its judgment such use will not interfere with or adversely affect Licensor's two-way radio communication or utility services, and WHEREAS, Licensee shall pay Licensor for the privilege of installing its transmitters in Licensor's building, and attaching its antennas to Licensor's tower under this agreement, a rental rate of One Dollar ($1.00) per month. NOW, THEREFORE, in consideration of the mutual covenants, terms and conditions herein contained, the parties hereto do hereby mutually covenant and agree as follows: GENERAL LOCATION OF AND PURPOSE FOR ATTACHMENT The license granted by this Agreement is applicable only for the purpose hereinafter stated. This Agreement applies only t *Z the locatioxi described above, and covers the licensing of space in Licensor's building for the installation of one or more two (2) frequency transmitters and space on Licensor's tower for attachment of two (2) or more antenna systems, used by Licensee in its two-way radio communication systems. II ATTACHMENT CONDITIONS Licensee shall submit to Licensor evidence, satisfactory to Licensor, of any necessary consent from federal, state, municipal or other public authorities, to construct, use and maintain Licensee's equipment on or attached to Licensor's property located at its Gordonville Road water tower. Licensee shall have, retain, and assume all legal liability and responsibility for any damages and hazards which occur or may arise as a result of the placement or attachment of Licensee's equipment to, on, or in any of Licensor's facilities. Licensee's assumption and retention of legal liability and responsibility shall include all existing and future responsibilities and liabilities incurred or occassioned either directly or indirectly. III REMOVAL OF ATTACHMENT Licensee may at any time remove its equipment from Licensor's building and tower, but in that event, it shall immediately give Licensor written notice of such removal. In the event of removal by Licensee under the terms of this paragraph or otherwise, any and all expenses connected therewith and all damage to the property of Licensor or other user of Licensee's property, including but not limited to damage to property owned or occupied by Licensor, and injuries to third persons or other property shall and will be the sole and exclusive responsibility of Licensee. IV RENTALS AND BILLING Licensee shall pay to Licensor for use of building space, and for attachments made to the tower under this Agreement, a 2. rental at the rate as established above. Said rental shall be payable monthly in advance on the first day of each month during which this Agreement remains in effect. V RESERVATION OF RIGHTS AND INSPECTION A. No use of Licensor's building or tower, however lengthy or extended, nor any payments made under this agreement, nor any other action of Licensee of any kind whatsoever shall create or constitute or give Licensee any ownership or property rights in Licensor's building, tower, or associated equipment. Licensee's right and rights in the future are strictly limited to the terms of this Agreement and shall be and remain always as a mere license governed by the terms of this Agreement. B. - Licensor reserves the right to maintain its building and tower and to operate its facilities associated therewith in such manner as will best enable it to fulfill its service requirements. Licensor shall not be liable to Licensee, its customers, or any others, for any interruption to service of Licensee or for any interference with the operation of Licensee's equipment arising in any manner out of the use of Licensor's facilities hereunder, whether intentional, unintentional, negligent, or otherwise. C. Nothing herein contained shall be construed as affecting the rights or privileges previously granted by Licensor, by contract or otherwise, to others not parties to this Agreement, to also use the tower covered by this Agreement; and Licensor retains the right to continue and extend such rights or privileges. The attachment privileges herein granted shall at all times be subject to such existing contracts and arrangements. t D. Licensor reserves the right to inspect the installation of Licensee's equipment in and on Licensor's facilities. The making of such inspections or the omission to do so shall 3. not operate in anywise to relieve Licensee and/or Licensee's insuror of their responsibility, obligation and liability assumed under the terms of this Agreement, or created by law. By preserving the right to make inspections as herein provided, Licensor does not undertake any obligations to inspect and shall have no duty to inspect and in the event of inspection shall have no duty to notify or warn Licensee or any third party who may be affected by Licensee's attachunent, all said duties of warning, notification, inspection, repair and correction, and the like shall be and remain the sole and exclusive responsibility of Licensee; VI RISK OF LOSS, LIABILITY AND INSURANCE. A. Licensee shall exercise special precautions to avoid causing damage to facilities of Licensor and other users and equipment associated or connected therewith. In the event Licensee, its contractors, agents or employees cause such damage or such damage is caused by the presence of Licensee's equipment on Licensor's tower, Licensee assumes all responsibility for, and agrees promptly to reimburse Licensor and other users in full as billed by Licensor for all loss and expense occasioned by such damage. Licensee shall make immediate oral and written report to Licensor of the occurrence of damage. B. Licensee shall indemnify, protect, save harmless, and insure Licensor and other users from and against any and all claims or demands for damages as a result of injury or destruction of property or as a result of injury or death of a person or persons, including payments made under any Workmen's Compensation Law or under any plan for employee's disability and death benefits, and including all expenses incurred in defending against any such claims or demands, which may arise out of or be caused by the erection, installation, maintenance, presence, use, rearrangements, or removal of Licensee's 4. equipment in Licensor's building or on L•icensor's tower or by the proximity of the respective cables, wires, apparatus, and appliances of the parties hereto or by any act of Licensee, its agents and employees on or in the vicinity of Licensor's building or tower. Licensee shall submit to Licensor evidence of Licensee's insurance coverage in such form and in such companies as are satisfactory to Licensor to protect the parties hereto from and against any and all claims, demands, actions, judgments, costs, expenses and liabilities of every name and nature which may arise or result directly or indirectly from or by reason of such claims and demands for damages. The amounts of such insurance against liability due to damage or destruction of property shall be not less than $100,000. as to any one claim or damage, and $300,000. as to any one occurrence and against liability due to injury or death of persons shall be not less than $500,000. as to any one occurrence. C. Licensee shall also submit to Licensor evidence of Licensee's insurance coverage in such form and in such companies as are satisfactory to Licensor to protect the parties hereto from all claims under any Workmen's Compensation Laws in effect that may be applicable to them. D. All insurance here required shall be furnished by Licensee at its own expense and shall remain in force for the entire life of this Agreement, and all such insurance here required shall provide that such insurance will not be cancelled or changed except after thirty (30) days' written notice to Licensor. Unless it requests otherwise in writing, Licensor shall be named as an additional insured in each of such policies. C. In addition, Licensee shall indemnify, protect, save harmless and insure Licensor and Joint User: 1. With respect to all communications transmitted over Licensee's two-way radio communication system from and 5. against any and all claims and demands for damages or loss for liabel and slander, for business disparagement, for unauthorized use of ideas or confidential material, and from and against all claims and demands for infringement of patents with respect to the manufacture, use and operation of Licensee's equipment whether arising from the use of Licensee's equipment in combination with Licensor's tower or otherwise. 2. From and against any and all claims and demands for damages to property and for injury or death to persons which may arise out of or be caused by excessive electrical voltages and currents being conducted over Licensee's equipment, whether resulting from lightning, electric power line current or otherwise and regardless of whether such electrical voltages and currents were also conducted along and through Licensor's cables, wires, conduits, and facilities. 3. From all loss and expense which may result from any claims of governmental bodies, property owners or others that Licensee has not a sufficient right or authority for placing and maintaining Licensee's equipment at the location of Licensor's tower. VII TERM OF AGREEMENT A. This agreement shall become effective upon its execution and if not terminated because of default, violation or violations of any of the terms of this Agreement, or for other reasons provided for herein, shall continue in effect for a term of one year, and shall be automatically renewable for successive one-year periods unless terminated by one of the parties hereto. Either party may terminate the Agreement at the end of the first calendar year or any year thereafter by giving the other party at least sixty (60) days written notice of 0 and Licensee shall remove its equipment from Licensor's building and tower, as specified in Section VII. C. Should Licensee, without the prior written consent of Licensor, use any of its equipment attached to Licensor's tower for any service other than that provided for herein, which is the only service covered by this Agreement, such action shall constitute forthwith a breach of this Agreement, and Licensor may at its option, at any time after such breach occurs, forthwith terminate Licensee's attachment rights under this Agreement, and require Licensee to remove all of Licensee's equipment from Licensor's building and tower, as specified in Section VII. IX AMENDMENT AND ASSIGNMENT A. This Agreement may be amended at any time by joint agreement between the parties in writing similarly executed. B. This Agreement shall not be assibnable by Licensee without the written consent of Licensor. Fiq FAILURE TO ENFORCE Failure of Licensor to enforce or insist upon compliance with any of the terms or conditions of this Agreement or to give notice or declare this Agreement or the attachment rights hereunder terminated shall not constitute a general waiver or relinquishment of any terms or conditions of the Agreement, but the same shall be and remain at all times in full force and effect. XI SUCCESSORS AND ASSIGNS This Agreement shall not inure to the successors of Licensee nor shall Licensee assign, transfer or sublet the privileges hereby granted without the prior written consent of Licensor. Licensee agrees that it will not grant, sell, rent, loan or lease M. J to others, for any period of time, the use of all or any part of Licensee's equipment while attached to Licensor's tower. IN WITNESS WHEREOF, the parties hereto have respectively caused this Agreement to be duly executed the day and year first above written. ATTEST: Verna L. Landis, City Clerk ATTEST: CITY OF CAPE GIR.ARDEAU,, MISSOURI By � � A 4- Paul W- to r; Mayor EN MISSOURI UTILI`T`IES COMPANY M