Ordinance No. 7,650960314 -5
ORDINEINCE NO. 7650
AN ORDINANCE AUTHORIZING AND DIRECTING THE MAYOR TO
EXECUTE AND THE CITY CLERK TO ATTEST TO A LEASE AGREEMENT
WITH BOWEN -SMITH CORP. FOR A SKYLINE TOWER SITE FOR RADIO
COMMUNICATIONS EQUIPMENT; AUTHORIZING PAYMENT BY THE CITY
OF BAYTOWN, THE SUM OF FIVE THOUSAND ONE HUNDRED SEVENTY -
TWO AND NO /100 DOLLARS ($5,172.00); MAKING OTHER PROVISIONS
RELATED THERETO; AND PROVIDING FOR THE EFFECTIVE DATE
THEREOF.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS:
Section 1: That the City Council of the City of Baytown, Texas, hereby authorizes and directs
the Mayor and City Clerk of the City of Baytown to execute and attest to a Lease Agreement with
Bowen -Smith Corp. for a Skyline tower site for radio communications equipment. A copy of said
agreement is attached hereto, marked Exhibit "A," and made a part hereof for all intents and
purposes.
Section 2: That the City Council of the City of Baytown authorizes payment to Bowen -Smith
Corp. of the sum of FIVE THOUSAND ONE HUNDRED SEVENTY -TWO AND NO /100
DOLLARS ($5,172.00), pursuant to the Agreement.
Section 3: That pursuant to the provisions of Texas Local Government Code Annotated §
252.048, the City Manager is hereby granted general authority to approve any change order
involving a decrease or an increase in costs of FIFTEEN THOUSAND AND NO /100 DOLLARS
($15,000.00) or less, subject to the provision that the original contract price may not be increased
by more than twenty -five (25 %) or decreased by more than twenty -five (25 %) percent without the
consent of the contractor to such decrease.
Section 4: This ordinance shall take effect immediately from and after its passage by the City
Council of the City of Baytown.
INTRODUCED, READ and PASSED by the affirmative vote of the City Council of the City
of Baytown this the 14th day of March, 1995.
(7. ar'4'
PETE C. ALFA 0, Mayor
I,; r i,
ATTEST:
EILEEN P. HALL, City Clerk
® APPROVED AS TO FORM:
JGD(ACIO RAMIREZ, S ity Attorney
c :\council \meetings\march \bowen. 14
is
960314 -5a
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ADDENDUM
THE - FOREGOING SHALL BE MADE-PART OF THE LICENSE- AGREEMENT
BETWEEN BOWEN -SMITH CORP., HEREIN REFERRED TO AS LICENSOR AND
CITY OF BAYTOWN AS TRUSTEE FOR HARRIS COUNTY ORGANIZED CRIME AND
NARCOTICS TASK FORCE, HEREIN REFERRED TO AS LICENSEE, THE PARTIES
MUTUALLY AGREE AS FOLLOWS:
I. Due to the modified structure of rental rates your rental rate will increase $86.00
per month. Your new rental rate for the period of April 1, 1996 thru March 31, 1997
will be $431.00 per month.
H. Both parties agree that all terms and conditions of the License Agreement dated
jkpril 1, 1995 for the 500' level of our Skyline rental tower will remain in foil
force and effect.
ACCEPTED AND AGREED TO THIS THE DAY OF , 19_
LICENSEE
CITY OF BAYTOWN
L:
TITLE:
LICENSOR
BOWEN -SMITH CORP.
W. D. Sharp �-
Vice President
EXHIBIT A
LICENSE AGREEMENT*
® THIS AGREEMENT, effective as of the 1 st day of April, 1995, by and between Bowen -Smith
Corp., a Delaware Corporation, having an address at 12454 Old Galveston Road, Webster, Texas
77598 (hereinafter called "Licensor ") and City of Baytown as Trustee for Harris County Organized
Crime and Narcotics Task Force, having an address at P. O. Box 96755, Houston, Texas 77213,
(hereinafter called "Licensee ").
1. Licensor hereby grants percussion to Licensee to install and operate the radio communications
equipment described below ( "Equipment ") on the tower located at Skyline at the following location:
LT: 29 -4345 LG:95- 29 -26.
A. DB264 antenna at the 500' AGL of the tower.
B. 7/8" Flexible coaxial transmission line between antenna and radio equipment anchored
to the tower.
C. Radio communications equipment consisting of a transmitter operating on a frequency
of VHF TX VHF RX using call letters assigned by the FCC, and receiver and accessories to
be installed in Licensor's equipment house near the base of the tower ( "Equipment House ") or the
equipment house of the Licensee, if any ( "Licensee's Equipment House ").
No outside storage of any kind is permitted by this Agreement without prior written consent
of Licensor, which shall not be unreasonably withheld.
2. This Agreement shall commence on the date first written above -and shall terminate on the
31 st day of March, 1996 ( "Initial Term ") with additional automatic one (1) year renewal periods
commencing on successive anniversaries of the day following the termination dates) hereof. Said
renewal periods shall commence automatically without further action on the part of Licensor or
Licensee provided, however, that either party may terminate this Agreement at the expiration of the
Initial Term or each of the renewal periods, as the case may be, by giving the other party not less than
ninety (90) days written notice of its intention to terminate this Agreement.
3. (a) Licensee shall pay to Licensor a monthly fee of $345.40 ( "Base Fee ") during the Initial
Term of this Agreement which shall be payable on the fast day of every month. The Base Fee set
forth is inclusive of the charge for furnishing standard 110 volt power to Licensee.
(b) Licensor shall have the right to increase the monthly rental due hereunder at the end of
the Initial Term hereof and at the end of each annual renewal period thereafter for the full term of this
License Agreement and any extension hereof; in an amount not to exceed the average increase to
other customers of Licensor for similar locations on similar towers and for similar equipment house
space. In the event Licensor shall exercise its right to impose an increase, Licensee shall have the
right to terminate this Agreement upon thirty (30) days written notice from the date of receipt of such
notice of rental increase. Payment of any increased rate by, Licensee shall constitute Licensee's
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acceptance of the rental modification to this Agreement.
4. (a) Licensee shall operate its Equipment during the term hereof in compliance with an
present and future rules and regulations imposed by any local, state or federal authority having
jurisdiction over- transmissions and operations involved in the radio- communications systems and
equipment. Prior to installation of its Equipment, Licensee's Equipment House, if any, or any
modifications or changes (other than replacements of identical items at the same location) to the
Equipment, Equipment House or Licensee's Equipment House, if any, Licensee shall comply with
the following:
(i) Licensee shall submit all plans for Licensor's approval, which shall not be
unreasonably withheld.
(ii) Prior to commencement of any work, Licensee shall obtain Licensor's written
approval and required approvals of all federal, state and local agencies. Licensee shall promptly
deliver to Licensor written proof of compliance with all applicable Federal, State and Local laws and
regulations in connection with any installations or modifications.
(iii) All of the modifications, installations or changes shall conform with Licensor's
design and specifications, including weight and wind load requirements and shall not interfere with
radio communications systems and equipment of other licensees located on Licensor's tower and
facility, and shall be in compliance with all applicable local, state and federal governmental
requirements, including but not limited to zoning, FAA and FCC specifications.
(iv) All of Licensee's Equipment shall be clearly marked to show Licensee's name, call
sign, frequency and location. The coaxial cable shall be identified in the same manner at the bottom i
and top of the line.
(b) Licensee agrees that in all matters where Licensor's approval is required and Licensor
determines in its sole discretion that a possibility of a threat of interference or other disruption with
the business of Licensor or other existing licensees exists, Licensor shall have the absolute right to
withhold consent.
(c) In the event Licensee requires an electric power supply different from the power
currently provided by Licensor, Licensee at its sole cost and expense shall obtain such power supply.
Any work performed in connection with the power supply shall comply with provisions of
subparagraph (a) hereof. Licensee hereby agrees that any power lines installed by Licensee shall run
within the current easements of Licensor, and any deviation from such easements shall be corrected
at Licensee's expense which sum shall be immediately due upon the rendering of an invoice as an
additional fee hereunder.
(d) In the event a zoning variance is required in connection with the installation or
modification of Licensee's Equipment, or Licensee's Equipment House, Licensor shall have the right
to either (i) cancel this Agreement or (ii) allow Licensee, at its sole cost and expense, to obtain such
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variance. Licensor, at Licensee's request and expense, agrees to reasonably cooperate with Licensee
® in obtaining such variance.
5. The installation and operation of Licensee's Equipment shall not interfere electrically, or
in any other manner whatsoever, with Licensor or with any other party presentlyy' operating and
maintaining radio communications systems and equipment at the tower, and with Licensor's lighting
system_ All repeater systems on the tower shall be equipped with a passtype duplexer, and no
traptype duplexers shall be allowed. Any prov'sion in- this Agreement to the contrary
notwithstanding, it is expressly understood and agreed that if the installation or operation of
Licensee's Equipment shall interfere with other radio communications systems and equipment,
Licensee shall upon request (verbal or otherwise) immediately suspend its operations and do
whatever Licensor deems necessary to eliminate or remedy such interference. If Licensee fails to
immediately eliminate or remedy such interference, Licensor may at its option immediately and
without notice remove any and all of Licensee's Equipment at Licensee's cost and expense, or
eliminate or remedy such interference at Licensee's cost and expense or terminate the Agreement and
disconnect Licensee's equipment. Thereafter, Licensor shall have all rights given to it in Paragraph
9 below.
6. (a) Licensee at its own cost and expense shall be responsible for maintenance of its
Equipment and improvements on premises, if any, in accordance with all applicable laws and
regulations. All maintenance work shall be performed by certified steeplejacks or contractors
previously approved in writing by Licensor. In the event Licensor in its opinion, determines that any
structural modifications or repairs are needed to be made to its tower or surrounding premises due
to the presence of Licensee's Equipment or other improvements, Licensor shall give notice of such
fact to Licensee, and Licensee shall have the right to (i) terminate this Agreement by giving ten (10)
days written notice to Licensor, or (ii) Licensee may make the needed modifications and repairs, at
its sole cost and expense, in accordance with provisions of Paragraph (4) (a) hereto.
(b) Licensor agrees that Licensee shall have free access to the tower for the purpose of
installing Licensee's radio equipment, and that during the continuation of this Agreement, Licensee
shall have free ingress and egress to the said tower for the purpose of maintaining and repairing
Licensee's equipment. Licensee agrees that only authorized engineers of Licensee, or persons under
their direct supervision, will be permitted to enter said property for any purpose permitted herein.
Additionally, Licensee agrees that its coaxial cable must be permanently identified at the top and
bottom. Licensee understands and agrees that other licensees and their authorized representatives
shall similarly have access, ingress and egress to the tower for similar purposes, and that Licensor
shall not be responsible for the actions of any of such parties.
(c) Licensor at all times during the term of this License Agreement will maintain the
Tower and all associated Tower marking and lighting in compliance with all applicable Federal, State
and Local laws, rules and regulations relating to tower marking or lighting, including without
limitation, Part 17 of the rules and regulations of the Federal Communications Commission (the
"FCC "). In the event Licensee receives notice or otherwise obtains knowledge that the Tower
marking or lighting is not in compliance with any applicable law, rule or regulation, Licensee will
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immediately so notify Licensor (by fax or by telephone confirmed in writing) and will cooperate with
Licensor in curing any such noncompliance. Provided Licensee shall have complied with its
obligations hereunder, Licensor agrees to indemnify and hold Licensee harmless from and against
any and all liability, damage, loss, cost or expense incurred by Licensee, including but not limited
to any fine, penalty or forfeiture assessed against Licensee by the FCC, arising out of Licensor's
failure so to maintain the Tower marking and lighting.
(d) All of Licensee's transmission lines (as well as those of other licensees on the tower)
must be painted (red and white to match tower painting scheme) in compliance with Part 17 of
Federal Communications Commission rules and regulations within ninety (90) days of installation
of same, and -such paint must be maintained over the life of this License Agreement and any extension
hereof. If Licensee is in default of its obligation to have its transmission lines so painted, (a) Licensor
shall not be responsible to pay or reimburse Licensee or defend Licensee in legal action that may
result form notification of violations of Federal Communication Commission rules and" regulations
attributable to such failure to paint; and (b) Licensor may at its sole discretion bring Licensee's
transmission lines into compliance at Licensee's sule expense. Charges for such painting shall be
invoiced to Licensee following the completion of the work, and all invoices for such work shall be
due and payable within thirty (30) days of the date of such invoice. Failure to make such payment
shall be a default hereunder.
(e) Notwithstanding anything to the contrary contained in this License Agreement,
promptly after receipt by either party hereto of notice of the assertion of any claim sought against
either party hereto resulting from lack of maintenance, proper marking or proper lighting of the
Tower, the party receiving such notice will notify the other party in writing of the assertion of such
claim, and, subject to the provisions hereinafter set forth, the Licensor shall assume the defense of
such claim and the payment of expenses therefore insofar as such claim shall relate to any alleged
claim which Licensor has agreed to indemnify Licensee against. It shall be a condition of Licensor's
obligation hereunder to hold Licensee harmless from the claims herein described that Licensee (i)
permits Licensor to assume full responsibility for the defense of such claim, (ii) cooperates fully and
timely with all of Licenser's requests for assistance in preparing and presenting such defense, and (iii)
not be in default of any provision contained in this LicenseAgreement. The cooperation required of
Licensee hereunder shall include, without limitation, having its employees testify when requested by
the Licensor and making available any records, information, documents, or other data reasonably
requested by Licensor or its counsel in connection with such claim. Provided that Licensee is not in
breach of any of its obligations hereunder, Licensor or its counsel shall make available to Licensee
or its counsel any information concerning the claim and the status of the defense and negotiation with
respect thereto which Licensee or its counsel may request, except that Licensor or its counsel shall
not be required to deliver to Licensee or its counsel any information or materials which are protected
by a legal privilege, the furnishing of which would, in the opinion of Licensor or its counsel, have
an adverse affect upon the defense against such claim. In the event Licensee has had other fines,
penalties or forfeitures levied against it arising out of the same type of action covered by this
provision, which fine, penalty or forfeiture was not related to a tower owned by Licensor, then, in
such event, Licensor's obligations hereunder shall be limited to the amount of fine, penalty or
forfeiture which would be due without regard to Licensee's prior fine, penalty or forfeiture. In the
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event Licensee has suffered a prior fine, penalty or forfeiture assessed against it relating to a tower
not owned by Licensor, and in the further event Licensee relieves Licensor from any of its obligations
to indemnify Licensee hereunder, Licensee may, by written notice to Licensor, elect to defend itself
against the claims so asserted. In such event, Licensor shall give to Licensee the same cooperation
required of Licensee in the defense of such claim.
(0 Provided that Licensee is not in default in the performance of its obligations hereunder,
at the expiration of this Agreement or earlier termination hereof, Licensee shall remove its Equipment
and /or Licensee's Equipment House, if any, provided that such removal is done by a certified
steeplejack or contractor previously approved in writing by Licensor and in accordance with a
previously approved removal plan, in a workmanlike manner, without any interference, damage or
destruction to any other equipment, structures or operations of the tower, and without injury or
damage to the tower. Any and all interference or damage caused to the tower or operations of the
tower by such removal shall be immediately repaired or eliminated by-Licensee. If Licensee fails to
make such repairs within three (3) days after occurrence of such damage, injury or interference,
Licensor may perform all the necessary repairs at Licensee's cost and expense and such sum shall be
immediately due upon the rendering of an invoice as an additional fee hereunder.
7. (a) It is the express intention of the parties that Licensee agrees to indemnify and hold
Licensor and other present licensees harmless, and no action shall life, from any and all claims or
suites arising out of injury to, or death of; any person, or loss or damage done to Licensor's or other
Licensee's facilities or equipment, whether on, above or below ground, that occur as a result of the
installation, operation or maintenance of Licensee's Equipment, Licensee's Equipment House, if any,
or other improvements of Licensee, including, without limitation, the joint or concurrent, sole or
gross negligence, or willful misconduct of the Licensee, or its agents, employees, representatives, or
contractors. Licensee hereby assumes the risk of the inability to operate as a result of any structural
or power failures of the tower or failure of Licensee's Equipment for any reason whatsoever.
(b) It is the express intention of the parties that Licensor agrees to indemnify and hold
Licensee harmless, and no action shall lie, from any and all claims or suits arising out of injury to,
or death of, any person, or loss or damage done to Licensee's facilities or equipment, whether on,
above or below ground, that occur as a result of the installation, operation or maintenance of
Licensor's Equipment, Licensoe's Equipment House, if any, or other improvements of Licensor,
including, without limitation, the joint or concurrent, sole or gross negligence, or wiUfid misconduct
of the Licensor, or its agents, employees, representatives, or contractors.
(c) It is further the express intention of the parties that each party's foregoing indemnity
obligation shall include litigation expenses, court costs, reasonable attorneys' fees, investigation
costs, and all other reasonable costs and expenses incurred by the indemnified party from the first
written demand notice that any claim or demand has been made or may be made, and shall not be
limited in any way by any limitation on the amount or type of damages, compensation, or benefits
payable under applicable workers' compensation acts, disability benefit acts, or other employee
benefit acts. The provisions of this article shall survive the termination of this License Agreement
with respect to any damage, injury or death occurring before such termination.
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8. In the event the tower or any part thereof is damaged or destroyed by or any cause, Licensor
may elect to repair, rebuild, or restore the tower to the same condition as it was immediately prior to
such casualty. In such event, the payments required herein shall cease as of the date of such casualty
until the tower, in Licensoes opinion, is restored to a useable condition for Licensee's operation. If
Licensor chooses not to repair, restore or rebuild the tower, Licensor may cancel this Agreement by
giving written notice of cancellation to Licensee within thirty (30) days of such casualty. If this
Agreement is cancelled, the payments required herein shall terminate as of the date of such casualty.
Licensor shall not be responsible or liable to Licensee for any loss, damage or expense that may be
occasioned by, through or in connection with any acts or omissions of other Licensees occupying the
tower, or any part of the premises adjacent to or connected with the tower, or for any structural or
power failures or destruction or damage to the tower, the Equipment House or Licensee's Equipment
House, if any.
9. ' In the event of Licensee's default hereunder, including but not limited to- (i) the non - payment
of fees, additional fees or other payments set forth herein, (ii) abandonment of the premises, (iii) the
breach of any provision hereof, or (iv) the filing of any case, proceeding or other action under any
existing or future law of any jurisdiction, domestic or foreign relating to bankruptcy, insolvency,
reorganization or relief of debtors, seeking to have an order for relief entered with respect to
Licensee, or seeking reorganization, arrangement, adjustment, winding up, liquidation, dissolution,
composition or other relief with respect to it or its debts, or the making by Licensee of any
assignment or any other arrangement for the general benefit of creditors under any statute, in addition
to other legal or equitable remedies available, Licensor, after giving the Licensee notice of the
proposed termination and an opportunity to cure the default or remove Licensee's personal property
within a reasonable period of time, which shall not be less than thirty (30) days, shall be entitled, at
Licensor's option, to terminate this- Agreement and remove all of Licensee's Equipment,
improvements or personal property located on the premises at Licensee's cost and expense. In the
event that Licensor incurs any cost or expenses on behalf of Licensee or in connection with
Licensee's obligations hereunder, such sums shall be due to Licensor after the expiration of thirty (30)
days from the rendering of an invoice to Licensee.
10. All notices required to be given hereunder shall be given in writing either by telecopier,
overnight, other facsimile transmission, certified or registered mail at the respective addresses of the
parties set forth herein or at such other address as may be designated in writing by either party.
Notice given by mail shall be deemed given three days after the date of mailing thereof.
LICENSOR: BOWEN -SMITH CORP.
12454 OLD GALVESTON ROAD
WEBSTER, TEXAS 77598
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® LICENSEE: CITY OF BAYTOWN AS TRUSTEE FOR
HARRIS COUNTY ORGANIZED CRIME AND
NARCOTICS TASK FORCE
P. 0. BOX 96755
HOUSTON, TEXAS 77213
11. (a) Licensee shall maintain through self - insurance during the term of this Agreement
comprehensive general liability insurance coverage, including blanket contractual and completed
operations coverage, with limits of liability of at least $1,000,000 in respect of bodily injury,
including death, arising from any one occurrence, and $1,000,000.00 in respect of damage to property
arising from.any•one occurrence. Said insurance shall-include Licensor-as an additional insured and
shall provide the Licensor will receive at least (30) days prior written notice of any cancellation or
material change in such insurance coverage.' Such coverage shall be similar to that generally
provided by the highest rated insurance companies authorized to write such insurance in. the -State o
Texas. Licensee shall furnish to Licensor evidence of such insurance confirming that the insurance
coverage as specified herein is in full force and effect. Licensee agrees to indemnify and save
Licensor harmless from and against any and all loss, costs, liabilities, damages, judgments, and
expenses (including attorneys' fees), in connection with claims resulting from bodily injury or death
of any person or property damage to any property sustained by any person, including Licensee,
arising from or predicated upon Licensee's or Licensee's contractors, agents, invitees, visitors,
servants or employees operations at the premises including, but not limited to, the installation,
removal and maintenance of Licensee's equipment on the tower, in the Equipment Building or on
other improvements.
(b). Notwithstanding the foregoing insurance requirements, the insolvency, bankruptcy, or
failure of any insurance company carrying insurance for Licensee, or failure of any such insurance
company to pay claims accruing, shall not be held to waive any of the provisions of this Agreement
or refieve Licensee from any obligations under this Agreement.
12. Licensor reserves the right to assign, transfer, mortgage or otherwise encumber its interest
in the property on which the tower is located and/or its interest in the Agreement. Licensee agrees
upon demand to execute and deliver to Licensor such fiuther instruments subordinating this
Agreement in connection with any debt of Licensor as may be required by Licensor, in connection
with Licensoe's contemplated transaction. Licensee further agrees to execute and deliver to any
Lender of Licensor an Estoppel Certificate containing such information as may be reasonably
requested by such Lender.
13. This Agreement is made subject to all local, state and federal laws and regulations now or
hereafter in force, and shall not be modified, extended or terminated except by an instrument duly
signed by Licensor and Licensee. Waiver of a breach of any provision hereof under any
circumstances will not constitute a waiver of any subsequent breach of such provision, or of a breach
of any subsequent breach of such provision, or of a breach of any other provision of this Agreement.
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This Agreement or any rights hereunder may not be assigned, transferred or otherwise encumbered
by Licensee without prior written consent of Licensor, which shall not be unreasonably withheld.
14. Licensor and Licensee represent and warrant to each other that no broker was involved in
connection with this transaction and each party agrees to indemnify and hold the other harmless from
and against the claims of any broker made in connection with this transaction.
15. This Agreement contains the entire agreement of the parties hereto, and there are no oral
representations or agreements by either party hereto which conflict with, modify or otherwise change
or affect any provisions herein contained. This Agreement shall be governed by the laws of the State
of Texas.
16. Should Licensor fail or neglect to comply with any terms or conditions of this License and
"Rental- Agreement or to comply-with any reasonable requirement of Licensee after thirty (30) -days t'=
of a written notice and demand, the License and Rental Agreement shall be subject to termination,.
- at the sole discretion of the Licensee. Lt the event of such termination, Licensor shall refund all
monies for the unexpired term of the lease along with monies during which the breach causing such
termination persisted. Furthermor, the Licensee shall surrender all rights and privileges afforded to
Licensor under this Agreement.
17. This Agreement shall in all respects be-interpreted and construed in accordance with and
governed by the laws of the State of Texas, regardless of the place of its execution or performance.
The place of making and the place of performance for all purposes shall be Baytown, Harris County,
Texas.
18. All parties agree that should any provision of this Agreement be determined to be invalid
or unenforceable, such determination shall not effect any other term of this Agreement, which shall
continue in full force and effect.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date
first written above.
EXECUTED AT WEBSTER, TEXAS, THIS THE 16 DAY OF lu'er ,' , 1995
LICENSOR: BOWEN -SMITH CORP.
BY:
AU ORIZED REPRESENTATIVE
LICENSEE: CITY OF BAYTOWN -AS TRUSTEE FOR
HARRIS COUNTY ORGANIZED CRII ]E
AND NARCOTICS TASK FORCE
TITLE:
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