Ordinance No. 9,588ORDINANCE NO. 9588
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN,
TEXAS, AUTHORIZING AN ELEVATED WATER TANK USE AGREEMENT
WITH LEE COLLEGE DISTRICT FOR THE PLACEMENT OF
COMMUNICATION EQUIPMENT ON THE CITY OF BAYTOWN'S
ELEVATED WATER TANK LOCATED AT 1112 PARK STREET, BAYTOWN,
HARRIS COUNTY, TEXAS; 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 the
City Manager to execute and the City Clerk to attest to an Elevated Water Tank Use Agreement with
Lee College District for the placement of communication equipment on the City of Baytown's
elevated water tank located at 1112 Park Street, Baytown, Harris County, Texas. A copy of said
agreement is attached hereto, marked Exhibit "A," and made a part hereof for all intents and
purposes.
Section 2: 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 10'' day of July, 2003.
/!z6- C. "A-L4- -
PETE C. ALFARO, ayor
ATTEST:
GAY Y . SMITH, City Clerk
APPROV'tD' AS TO FORM:
cl'dNACIO RAMIREZ, . City Attorney
• FAKaren\Files \City Council\ Ordinances \Elevated WaterTankUseAgreementOrdinance .doc
• THE STATE OF TEXAS §
§ ELEVATED WATER TANK USE AGREEMENT
COUNTY OF HARRIS §
This Use Agreement is made and entered into this 291h day of June, 2003, by and between
the CITY OF BAYTOWN, a home -rule municipality in Harris and Chambers Counties, Texas,
(hereinafter referred to as "CITY ") and LEE COLLEGE DISTRICT, a governmental entity,
(hereafter referred to as "District ").
WITNESSETH:
In consideration of the mutual covenants, payments, responsibilities and duties herein
contained, CITY and DISTRICT contract as follows:
PROPERTY. CITY hereby grants to DISTRICT for DISTRICT's nonexclusive use
certain portions of real property and certain portions of CITY improvements (hereafter
referred to as "the Property") during the term of this Use Agreement. The Property to be
used by DISTRICT is more particularly described on Attachment "A" which is
incorporated herein by reference for all intents and purposes.
2. USE.
2.1 DISTRICT shall use the property only for the West Chambers County Wireless
project and only for the following specified purposes:
2.1.1 Antenna(s), dish(es) and/or grids as specified on Attachment "A."
2.1.2 Mounting and grounding hardware as specified on Attachment "A."
2.1.3. A concrete pad and a shelter containing telecommunications equipment
consisting of a base station, wireless communication equipment,
switch(es), power supply(ies), battery(ies), and accessories as shown on
Attachment "A," may be provided by the CITY if space permits as
determined by the CITY, otherwise the DISTRCT may build a concrete
pad and structure at its sole cost and expense if the pad and structure and
the location thereof have been approved by the CITY. DISTRICT may not
add additional equipment and/or antennas from that shown on Attachment
"A" without the prior written approval of CITY.
2.2 CITY reserves the right to require DISTRICT to relocate its facilities at any time.
DISTRICT shall complete any relocation of its facilities within thirty (30) days
after written notice from CITY. The relocation shall be at DISTRICT's expense,
unless the CITY's relocation requirement results from the CITY's desire to enter
into a Use Agreement for space on the Elevated Water tank to nongovernmental
third -party user. In that case, the third -party user shall be obligated to reimburse
EXHIBIT A
Elevated Water Tank Use A eement Page 1
• DISTRICT the reasonable relocation costs of DISTRICT. At no time shall CITY
be liable for such costs.
3. TERM. The term of this Use Agreement will be for five (5) years, and will commence
upon the date of full execution of this Use Agreement by both parties (hereafter referred
to as "Commencement Date ") and will terminate at 11:59 p.m. on the date being five (5)
years from the Commencement Date, unless sooner terminated as provided in this Use
Agreement.
4. CONSIDERATION.
4.1 Upon the Conunencement Date, DISTRICT shall pay CITY a use fee in the
amount of ONE AND NO /100 DOLLAR ($1.00).
4.2 No additional antenna or other item may be installed by DISTRICT beyond the
initial array described in Attachment "A."
4.3 In further consideration for the privilege of use of the Property during the term of
this Use Agreement, DISTRICT will be solely responsible for the inspection and
maintenance of the Property utilized by DISTRICT. DISTRICT will notify CITY
of any existing or developing hazardous or dangerous condition on the Property.
In consideration for the privilege of use of the Property, DISTRICT specifically
assumes any and all liability that may arise due to any site or property defects or
other defects arising out of or relating to DISTRICT's use of the Property.
DISTRICT accepts the Property as is, in the condition in which it is found.
CITY hereby disclaims, and DISTRICT hereby accepts CITY's disclaimer,
of any warranty, express or implied, of the conditions or fitness for use of any
portions of the Property, including, but not limited to, use of the Property for
transmission, reception or operation of a communications system or partial system
or for uses incidental thereto. -
4.4 DISTRICT agrees to pay any real estate taxes or payment in lieu of taxes required
or contributed to as a result of this Use Agreement.
4.5 DISTRICT agrees to pay all electrical costs associated with the installation,
operation and maintenance of its equipment installed pursuant to this Use
Agreement. Such amount shall be calculated based upon the difference between
the actual electricity cost to the City from and after the date the Antenna Facilities
are being constructed less the City's average electricity expense for the Property
as of the date of this agreement.
4.6 As additional consideration for the privilege of use of the Property during the
term of this Use Agreement, DISTRICT agrees to allow CITY to install a wireless
access point on the proposed future antenna to be located at or near the San
• Jacinto Mall under mutually acceptable terms. The parties understand and agree
that if such tower is not built on or before the 15`h day of June, 2005, or if an
Elevated Water Tank Use Agreement, Page 2
• agreement is not reached on or before such date, CITY shall have the right to
immediately without notice to terminate this Use Agreement and DISTRICT shall
be required to remove its Antenna Facilities and related equipment from the
Property within ten days. Should DISTRICT fail to remove the same within the
ten -day period, CITY may do so at DISTRICT'S sole cost and expense. The City
shall not be liable for the removal or for any damage to the Antenna Facilities
which may be caused by such removal. Furthermore, any and all damage to the
elevated water tank, whether caused by removal or by DISTRICT'S use of the
Antenna Facilities shall be at DISTRICT'S sole cost and expense and CITY shall
not be liable for the same.
5. STANDARDS.
5.1 DISTRICT may use the Property for the installation, operation, and maintenance
of its Facilities for the transmission, reception and operation of a communications
system. This use shall be nonexclusive
5.2 DISTRICT's antenna shall not interfere with existing antenna or proposed
antenna. Interference shall mean structural interference, signal interference,
internal interference, electrical interference, RF problems or any other
interference. Nothing shall interfere with the communication capabilities of other
users, if any. Landscaping around DISTRICT's structures will be provided by
DISTRICT and maintained by DISTRICT as directed by CITY.
5.3 DISTRICT shall, at its expense, comply with all present and future federal, state,
and local laws, ordinances, rules and regulations including without limitation,
laws and ordinances relating to health, radio frequency emissions, or other
radiation and safety requirements in connection with the use, operation,
maintenance, construction and/or installation of the Antenna Facilities and/or the
Property. CITY agrees to reasonably cooperate with DISTRICT in obtaining, at
DISTRICT's expense (including CITY's reasonable attorney and administrative
fees), any federal licenses and permits required for or substantially required by
DISTRICT's use of the Property.
5.4 DISTRICT's facilities shall, at all times, be painted, at DISTRICT's expense, the
same color as the elevated Water Tank. Repainting of facilities in conjunction
with elevated Water Tank painting shall be accomplished by DISTRICT or billed
by the CITY as CITY in its sole discretion determines.
5.5 DISTRICT will maintain the Property in a sanitary, safe and clean condition.
DISTRICT also agrees to clean any areas on the Property if and when the
DISTRICT's activity or use results in or creates the need for such cleaning.
DISTRICT further agrees and convenants that the Property and any and all
improvements or removal of property shall at all times be subject to inspection by
CITY. However, CITY has no duty to inspect the Property during DISTRICT's
use of the Property.
Elevated Water Tank Use Agreement, Page 3
5.6 DISTRICT will be solely responsible for and promptly pay all charges for gas,
electricity, telephone service, or any other utility used or consumed by DISTRICT
on the Property. If necessary, DISTRICT will have a meter installed at the
Property for DISTRICT's utility use, and the cost of such meter and of
installation, maintenance, and repair thereof will be paid for by DISTRICT.
DISTRICT may install or improve existing utilities servicing the Facility and may
install an electrical grounding system or improve any existing electrical grounding
system to provide the greatest possible protection from lighting damage to the
Facility after approval of the appropriate City department.
5.7 DISTRICT shall have the privilege, at its sole cost and expense, to install, operate
and maintain on the Property, in accordance with good engineering practices and
with all applicable FCC rules and regulations, its Antenna Facilities as described
on Attachment "A."
5.8 DISTRICT's installation of all Antenna Facilities shall be done according to plans
developed by an engineering firm that is knowledgeable in elevated water tank
construction and who is approved by CITY. DISTRICT understands and agrees
that under no circumstances shall there be any welding on the elevated water tank.
The plans shall be sealed in accordance with State of Texas requirements. Any
damage done to the Property and/or the Elevated Water Tank or any other user's
facilities during installation and/or during operations shall be repaired or replaced
within five (5) days at DISTRICT's expense and to CITY's sole satisfaction.
5.9 Prior to any construction on the property, DISTRICT will provide plans depicting
all construction to CITY. Within five (5) days after the Commencement Date,
DISTRICT shall provide CITY with as -built drawings of the Antenna Facilities
and the improvements installed on the Property, which show the actual location of
all equipment, transmission lines and improvements consistent with Attachment
"A." The drawings shall be accompanied by a complete and detailed inventory of
all equipment, personal property, Antenna Facilities and any other items on the
property.
5.10 DISTRICT may update or replace the Antenna Facilities from time to time with
the prior written approval of CITY, provided that the replacement facilities are
not greater in number or size than the existing facilities and that any change in
their location on the Elevated Water Tank is approved by CITY in writing.
DISTRICT shall submit to CITY a detailed proposal, in accordance with Section
5.7 of this Use Agreement, for any such replacement facilities and any
supplemental materials as may be requested, for CITY's evaluation and approval.
As technology advances and improved antenna are developed and reasonably
available, CITY may require in its sole discretion, the replacement of existing
antenna with the improved antenna, as long as the installation and use of the
• improved antenna are practical and technically feasible.
Elevated Water Tank Use Agreement, Page 4
• 5.11 All transmitters shall be FCC type accepted for the intended application with
proper shielding.
5.12 Double shielded, double braided or heliax type coaxial cable is required from
radio equipment through isolators, band pass devices and duplexers, etc., to heliax
transmission line. No RG -8 type cable will be allowed.
5.13 Jacketed heliax transmission line is required. Unjacketed transmission line of any
type is prohibited.
5.14 Radio equipment must be housed in metal cabinets and properly grounded. Rack
mounted equipment will be allowed on a case -by -case basis subject to written
approval of CITY.
5.15 DISTRICT shall identify each transmitter with a copy of the FCC license,
agreement number (if applicable), person's name, and telephone number
responsible for the equipment maintenance, the receiver frequency,
transmit/receive tone frequencies and transmit frequency and power.
5.16 If it shall become necessary for DISTRICT to install any antenna or transmission
lines, CITY will specify type, installation procedures, and placement of
equipment and devices.
5.17 Batteries will be installed and maintained in a manner prescribed by CITY.
Battery type shall be approved by CITY.
5.18 Storage of any standby or emergency equipment or items will be with written
approval of CITY. DISTRICT will be fully responsible for loss or damage.
5.19 All waste material or surplus equipment, etc., shall be hauled away from the site.
5.20 All gates, doors and any security devices shall not be left in an open state and
unattended, unless directed by the CITY.
6. MAINTENANCE & ACCESS.
6.1 DISTRICT shall, at its own expense, maintain any equipment on or attached to
the Property in a safe condition, in good repair and in a manner suitable to CITY
so as not to conflict with the use of the Elevated Water Tank by CITY or other
entities, if any. DISTRICT shall not interfere with the use of the Elevated Water
Tank by CITY or other entities, if any. DISTRICT shall not unreasonably
interfere with the use of the Elevated Water Tank, the Property, related facilities
or other equipment of other users. DISTRICT shall provide a maintenance
schedule which provides at a minimum, review of equipment quarterly along with
a list of maintenance scheduled items. After any severe weather condition, all
equipment shall be checked by DISTRICT.
Elevated Water Tank Use Agreement, Page 5
6.2 DISTRICT shall have sole responsibility for the maintenance, repair, and security
of its equipment, personal property, Antenna Facilities, and shall keep the same in
good repair and condition during the term of this Use Agreement.
6.3 DISTRICT shall keep the Property free of debris and anything of a dangerous,
noxious or offensive nature or which would create a hazard or undue vibration,
heat, noise or interference.
6.4 In the event the CITY or any other tenant undertakes painting or other alterations
on the elevated water tank, DISTRICT shall take reasonable measures at
DISTRICT's cost to cover DISTRICT's equipment, personal property or Antenna
Facilities and protect such from paint and debris fallout which may occur during
the painting or alterations process. DISTRICT shall be responsible for any
additional cost incurred by CITY as a result of special requirements or additional
work due to the antenna system. In the event CITY undertakes any repair,
maintenance or any other type of work for which the CITY'S Director of Public
Works/Utilities determines that the Antenna Facilities should be removed,
DISTRICT shall remove the same within ten days after the CITY makes a request
for the removal. If DISTRICT fails to remove the same within the ten -day period,
CITY may do so at DISTRICT'S sole cost and expense. The City shall not be
liable for the. removal or for any damage to the Antenna Facilities which may be
caused by such removal. Furthermore, any and all damage to the elevated water
tank, whether caused by removal or by DISTRICT'S use of the Antenna Facilities
shall be at DISTRICT'S sole cost and expense and CITY shall not be liable for
the same.
6.5 DISTRICT's access to CITY's tank sites and facilities will be controlled by the
CITY at all times. No unannounced employees of the DISTRICT, agents,
subcontractors, or others may have access to the site and facilities without first
notifying and receiving approval from the CITY. Notwithstanding the above,
DISTRICT may have emergency access, if necessary to restore service, to the
area shown on Attachment "A," which is the separately secured area containing
DISTRICT's equipment enclosure (which area shall have no access to the
remainder of the site), without prior notification and approval. When emergency
access is necessary, DISTRICT shall notify CITY as soon as possible, whether
before or after the access occurred.
7. COMPLIANCE WITH STATUTES, REGULATIONS AND APPROVALS.
7.1 DISTRICT's use of the Property is contingent upon its obtaining and maintaining
all licenses, certificates, permits, zoning, and other approvals that may be required
by any federal, state or local authority. DISTRICT shall erect, maintain and
operate its Antenna Facilities in accordance with site standards, state statutes,
ordinances, rules and regulations now in effect or that thereafter may be issued by
the Federal Communications Commission or any other governing bodies.
Elevated Water Tank Use Agreement, Page 6
• 8. INTERFERENCE.
•
8.1 DISTRICT's installation, operation, and maintenance of its transmission facilities
shall not damage or interfere in any way with CITY's elevated water tank
operations or related repair and maintenance activities or with activities of other
users. DISTRICT agrees to cease all actions which interfere with CITY's use of
the Elevated Water Tank immediately upon notice of such interference. CITY, at
all times during this Use Agreement, reserves the right to take any action it deems
necessary, in its sole discretion, to repair, maintain, alter or improve the Property
in conjunction with elevated water tank operations as may be necessary, including
making parts of the Elevated Water Tank available to other parties.
8.2 Before approving the placement of Antenna Facilities, CITY may obtain, at
DISTRICT's expense, an interference study indicating whether DISTRICT's
intended use will interfere with any existing communications facilities on the
Elevated Water Tank and an engineering study indicating whether the Elevated
Water Tank is able to structurally support the DISTRICT's Antenna Facilities
without prejudice to the CITY's primary use of the Elevated Water Tank.
8.3 CITY does not guarantee to DISTRICT subsequent noninterference with
DISTRICT's transmission or reception operations. A governmental unit may be
allowed to place antenna or other communications facilities on the Elevated
Water Tank regardless of potential or actual interference with DISTRICT's use.
8.4 DISTRICT's use and operation of its facilities shall not interfere with the use and
operation of other communication facilities on the Elevated Water Tank which
pre - existed DISTRICT's facilities or are owned or operated by a governmental
entity regardless of when the same is placed. If DISTRICT's facilities cause
interference, DISTRICT shall take all measures reasonably necessary to correct
and eliminate the interference. If the interference cannot be eliminated in a
reasonable time as determined by CITY, DISTRICT shall immediately cease
operating its facilities until the interference has been eliminated.
8.5 If radio interference occurs, additional protection devices may be required. The
need for additional filtering equipment will be determined on a case -by -case
basis, and the cost of any additional devices that may be required shall be borne
by DISTRICT. CITY reserves the right to require any electronic devices
necessary for elimination of system interference. DISTRICT may secure these
devices in cases where interference is caused to DISTRICT.
EIevated Water Tank Use Agreement, Page 7
0 9. DEFAULT OR BREACH AND CITY'S REMEDIES.
9.1 DISTRICT shall pay CITY a late payment charge equal to five percent (5 %) for
any payment not paid when due. It shall be a default if DISTRICT fails to pay
any sums to CITY when due, and does not cure such default within ten (10) days;
or if DISTRICT fails in the performance of any other covenant or condition of
this Use Agreement and does not cure such other default within thirty (30) days
after written notice from CITY specifying the default complained of; or if
DISTRICT abandons or vacates the Property; or if DISTRICT is adjudicated
bankrupt or makes any assignment for the benefit of creditors; or if DISTRICT
becomes insolvent or DISTRICT reasonably believes itself to be insolvent; or if
DISTRICT fails to operate the Antenna Facilities for a period of thirty (30) days;
or if DISTRICT attempts to assign or transfer this Use Agreement in whole or in
part, or any interest in this Use Agreement or the Antenna Facilities or any rights
under this Use Agreement without the prior written consent of the CITY, which
consent may be withheld for any reason or no reason; or if DISTRICT fails to
comply with any provision in this Use Agreement.
9.2 In the event of a default, CITY shall have the right, at its option, in addition to and
not exclusive of any other remedies CITY may have by operation of the law or in
accordance with this Use Agreement, without any further demand or notice, to
eject all persons and equipment and removable items from the Property, and
declare this Use Agreement at an end, and in which event DISTRICT shall
immediately pay CITY a sum of money equal to the total of (i) the amount of the
unpaid rent accrued through the date of termination, if any; and (ii) any other
amount necessary to compensate CITY for all damages caused by DISTRICT's
failure to perform its obligations under this Use Agreement, including attorneys
fees to enforce the terms and conditions of this Use Agreement
9.3 This Use Agreement may be terminated by DISTRICT if it is unable to obtain or
maintain any license, permit, or other governmental approval necessary for the
construction and/or operation of the Antenna facilities or DISTRICT's business
and CITY shall retain any prepaid rent.
9.4 This Use Agreement may be terminated by CITY if the CITY decides, in its sole
discretion and for any reason, to redevelop the Property and/or discontinue use of
the Elevated Water Tank. Also, CITY shall refund any prepaid rent. CITY will
give notice to the extent possible but no less than thirty (30) days' notice to
DISTRICT will be provided unless an emergency condition exists as determined
in the sole discretion of the City Manager.
9.5 Upon termination or expiration of this Use Agreement for any reason, DISTRICT
shall remove its equipment, personalty, Antenna Facilities, and any improvements
from the Property within thirty (30) days of the date of termination, and shall
• repair to the satisfaction of CITY any damage to the Property caused by such
equipment, all at DISTRICT's sole cost and expense. In the event that
Elevated Water Tank Use Agreement, Page 8
• DISTRICT'S Antenna Facilities, and related equipment are not so removed to the
satisfaction of CITY, any such property or facilities shall become the property of
CITY and DISTRICT shall have no further rights thereto.
•
9.6 Notice of DISTRICT's termination pursuant to paragraph 9.4 shall be given to
CITY in writing by certified mail, return receipt requested, and shall be effective
upon receipt of such notice. All fees paid for the Use Agreement of the Property
prior to said termination date shall be retained by CITY. Upon such termination,
this Use Agreement shall become null and void and the parties shall have no
further obligations to each other, except as those required for site restoration and
equipment removal.
9.7 In the event that this Use Agreement is terminated or otherwise expires,
DISTRICT shall have 30 days from the termination or expiration date to remove
its Antenna Facilities and related equipment from the Property.
9.8 If DISTRICT fails to remove its Antenna Facilities and related equipment from
the Property, CITY may do so at DISTRICT'S sole cost and expense. The City
shall not be liable for the removal or for any damage to the Antenna Facilities
which may be caused by such removal. Furthermore, any and all damage to the
elevated water tank, whether caused by removal or by DISTRICT'S use of the
Antenna Facilities shall be at DISTRICT'S sole cost and expense and CITY shall
not be liable for the same.
10. RELEASE AND INSURANCE.
10.1 Disclaimer of Liability: CITY shall not at any time be liable for injury or damage
occurring to any person or property from any cause whatsoever arising out of
DISTRICT's construction, maintenance, repair, use, operation, condition or
dismantling of the Property or DISTRICT's Antenna Facilities.
10.2 Assumption of Risk: DISTRICT undertakes and assumes for its officers, agents,
contractors and subcontractors and employees (collectively "DISTRICT" for the
purpose of this section), all risk of dangerous conditions whether patent or latent,
obvious or undiscoverable, and regardless of whether CITY should have known
of such dangerous conditions, if any, on or about the Property.
10.3 DISTRICT agrees that no claim or lien may be filed against CITY's property for
work, labor, materials or supplies provided or supplied to DISTRICT, its
contractors or subcontractors concerning the installation, construction, operation,
maintenance or use of the property or DISTRICT'S Antenna Facilities. Should
such claim or lien be filed, DISTRICT, upon the written request of CITY, shall
cause such claim or lien covering CITY'S property to be discharged or bonded
within thirty (30) days following such request.
Elevated Water Tank Use Agreement, Page 9
10.4 Insurance. During the term of the Use Agreement, DISTRICT shall maintain or
cause to be maintained, in full force and effect and at its sole cost and expense,
the following types and limits of insurance: (i) worker's compensation insurance
meeting Texas statutory requirements and employer's liability insurance with
minimum limits of ONE HUNDRED THOUSAND DOLLARS ($100,000) for
each accident, ONE HUNDRED THOUSAND DOLLARS ($100,000) per each
employee, FIVE HUNDRED THOUSAND DOLLARS ($500,000) disease - policy
limit, such policy or policies shall include waiver of subrogation in favor of the
CITY; (ii) comprehensive commercial general liability insurance with minimum
limits of ONE MILLION DOLLARS ($1,000,000) as the combined single limit
for each occurrence of bodily injury, personal injury and property damage. The
policy shall provide blanket contractual liability insurance for all written
contracts, and shall include coverage for products and completed operations
liability, independent contractor's liability; coverage for property damage from
perils of explosion, collapse or damage to underground utilities, commonly
known as XCU coverage; (iii) automobile liability insurance covering all owned,
hired and nonowned vehicles in use by DISTRICT, its employees and agents,
with personal protection insurance and property protection insurance that comply
with the provisions of law, including residual liability insurance with minimum
limits of ONE MILLION DOLLARS ($1,000,000) as the combined single limit
for each occurrence for bodily injury and property damage; (iv) at the start of and
during the period of any construction, builders' all -risk insurance, together with
an installation floater or equivalent property coverage covering cables, materials,
machinery and supplies of any nature whatsoever which are to be used in or
incidental to the installation of the Antenna Facilities. Upon completion of the
installation of the Antenna Facilities, DISTRICT shall substitute for the foregoing
insurance policies of fire, extended coverage and vandalism and malicious
mischief insurance on the Antenna Facilities. The amount of insurance at all
times shall be representative of the insurable values installed or constructed; (v)
business interruption insurance coverage in an amount sufficient to cover such
loss of revenues, for the period of time which it would take, under normal
circumstances, to repair or replace that part(s) of the Antenna Facilities which is
damaged and caused the loss of revenue; (vi) hazardous materials insurance
coverage for damages caused by hazardous materials in an amount satisfactory to
CITY; (vii) all policies other than those for Worker's Compensation shall be
written on an occurrence and not on a claims made basis; (viii) the coverage
amounts set forth above may be met by a combination of underlying and umbrella
policies so long as in combination the limits equal or exceed those stated.
10.5 Evidence of Insurance: Certificates of insurance for each insurance policy
required to be obtained by DISTRICT in compliance with this paragraph, along
with written evidence of payment of required premiums shall be filed and
maintained with CITY annually during the term of the Use Agreement.
DISTRICT shall immediately advise CITY of any claim or litigation that may
• result in liability to CITY.
Elevated Water Tank Use Agreement, Page 10
10.6 Cancellation of Policies of Insurance: All insurance policies maintained pursuant
to this Use Agreement shall contain the following endorsement: "At least sixty
(60) days' prior written notice shall be given to CITY by the insurer of any
intention not to renew such policy or to cancel, replace or materially alter same,
such notice to be given by registered mail to the parties named in this Use
Agreement."
10.7 Insurance Companies: All insurance shall be effected under valid and enforceable
policies, insured by insurers licensed.to do business in the State of Texas.
10.8 Contractors: DISTRICT shall require that each and every one of its contractors
and their subcontractors carry, in full force and effect, workers' compensation,
comprehensive public liability and automobile liability insurance coverages of the
type which DISTRICT is required to obtain under the terms of this paragraph with
appropriate limits of insurance.
10.9 Review of Limits: Once during each calendar year during the term of this Use
Agreement, CITY may review the insurance coverages to be carried by
DISTRICT. If CITY determines that higher limits of coverage are necessary to
protect the interests of CITY or the Additional Insureds, DISTRICT shall be so
notified and shall obtain the additional limits of insurance, at its sole cost and
expense.
11. ACCEPTANCE OF PROPERTY. By taking possession of the Property, DISTRICT
accepts the Property in the condition existing as of the Commencement Date. CITY
makes no representation of warranty with respect to the condition of the Property and
CITY shall not be liable for any latent or patent defect in the Property.
12. NOTICE. All notices or demands are deemed to have been given or made when
delivered in person or mailed by certified, registered, or express mail, return receipt
requested, postage prepaid, United States mail, and addressed to the applicable party as
follows:
CITY: City of Baytown
Attention: City Manager
P.O. Box 424
Baytown, TX 77522
DISTRICT: Lee College District
Attention: Michael Sparkes
P.O. Box 818
Baytown, TX 77522 -0818
0 13. CONSTRUCTION. Both parties have participated fully in the review and revision of
this Use Agreement. Any rule of construction to the effect that ambiguities are to be
Elevated Water Tank Use Agreement, Page 1 i
resolved against the drafting party shall not apply to the interpretation of this Use
Agreement.
14. ASSIGNMENT.
14.1 DISTRICT may not assign this Use Agreement or allow other users on the
Property without the prior written consent of CITY.
14.2 Nothing in this Use Agreement shall preclude CITY from entering into other
Agreements for other space for communications equipment to any person or
entity which may be in competition with DISTRICT, or any other party.
14.3 If ownership of the DISTRICT changes substantially such that a change of control
occurs, such determination being made in the sole discretion of the City Council,
then in that event, the CITY will in its sole discretion terminate this Agreement or
renegotiate the terms of this Agreement as approved by the City Council.
15. SUCCESSORS AND ASSIGNS. This Use Agreement shall be binding upon and inure
to the benefit of the parties, their respective successors, personal representatives and
assigns.
16. MISCELLANEOUS.
16.1 CITY and DISTRICT represent that each, respectively, has full right, power, and
authority to execute this Use Agreement.
16.2 This Use Agreement constitutes the entire agreement and understanding of the
parties and supersedes all offers, negotiations, and other agreements of any kind.
There are no representations -or understandings of any kind not set forth herein.
Any modification of or amendment to this Use Agreement must be in writing and
executed by both parties.
16.3 This Use Agreement does not establish any real property rights, franchises or
other rights whatsoever in real estate to DISTRICT. This Use Agreement
provides limited rights to use and limited rights for access to facilities subject to
revocation upon the terms and conditions of this Use Agreement.
16.4 This Use Agreement and the performance hereof shall be governed, interpreted,
construed and regulated by the laws of the State of Texas. Any litigation
concerning this Use Agreement shall be conducted in Harris County, Texas, and
the parties hereby agree to the venue and personal jurisdiction of these courts.
16.5 CITY reserves the right for CITY's Director of Public Works/Utilities or his
designee to enter upon and have access to any portion of the Property at any and
• all times on any matters.
16.6 One or more instances of forbearance by CITY in the exercise of its rights herein
shall in no way constitute a waiver thereof.
Elevated Water Tank Use Agreement, Page 12
16.7 No right or remedy granted herein or reserved to the CITY is exclusive of any
other right or remedy herein by law or equity provided or permitted, but each
shall be cumulative of every other right or remedy given hereunder. No covenant
or condition of this Use Agreement may be waived without consent of the CITY.
Forbearance or indulgence by CITY shall not constitute a waiver of any covenant
or condition to be performed pursuant to this Use Agreement.
16.8 This Use Agreement is entered into subject to the Charter and ordinances of
CITY, as they may be amended from time to time, and is subject to and is to be
construed, governed and enforced under all applicable State of Texas and Federal
laws.
16.9 If any of the terms, sections, subsections, sentences, clauses, phrases, provisions,
covenants or conditions of this Use Agreement are for any reason held to be
invalid, void or unenforceable, the remainder of the terms, sections, subsections,
sentences, clauses, phrases, provisions, covenants or conditions of this Use
Agreement shall remain in full force and effect and shall in no way be affected,
impaired or invalidated.
16.10 This Use Agreement shall not bestow any rights upon any third party, but rather,
shall bind and benefit the DISTRICT and the CITY only.
16.11 The article and section headings are used in this Use Agreement for convenience
and reference purposes only and are not intended to define, limit or describe the
scope or intent of any provision of this Use Agreement and shall have no meaning
or effect upon its interpretation
16.12 In the event of any ambiguity in any of the terms of this Use Agreement, it shall
not be construed for or against any party hereto on the basis that such party did or
did not author the same.
EXECUTED on the date first written above.
DISTRICT
BY
Signature
Don Coffey, Board Chair
ATTEST:
Di nne Maxie, B Secretary
Elevated Water Tank Use Agreement,Page 13
• •
CITY O . YT WN, T4,40
BY
GARY JA(K ON, City Manager
ATTEST:
Qom,�. ii
G W./SMITH, City Clerk
APPROVED .S TO FORM:
I IO RAMIREZ, Sr., City tt ey
F:\ICaren\Files\Contracts\Antenna Lease Agreement\.eeCollegeElevatedWaterTankUseAgreementRevised.doc
Elevated Water Tank Use Agreement,Page 14
• Attachment A
The following details the approximate location of the DISTRICT'S antennas and equipment on
the CITY'S water tower site located at 1112 Park Street, along with a listing of the number, type
and size of antennas and a description of all other equipment, wiring or cabling that the
DISTRICT will place at 1112 Park Street:
1. Axxcelera Broadband F051 -SV — 10 "x10" Flat Panel Transceiver pointing at a
bearing of 166.7° to Lee College ATC Building.
2. 3 Parabolic Dishes on railings with Axxcelera Broadband backings. One is pointed
Northwest to New 30 Acres Lee College site. One is pointing at a bearing of 102.4°
and one is pointed at a bearing of 50.7° to Barbers Hill,
3. All cable is shielded CATS and will be neatly and professionally strapped down.
4. CATS will traverse steel strand to existing building where RI45 interfaces and a small
switch will be located. It will use no more than a standard 120V AC outlet.
5. A rough diagram of the tower and antennas is attached hereto as Attachment I and
incorporated herein for all intents and purposes.
No other equipment of the DISTRICT shall be placed at the site without a separate written
agreement for the same.
1 The Axxcelera Transceiver is attached behind the dish. The Axxcelera unit only measures 10 "x10 ". It has a small
CATS wire that comes out of the unit to go to the D -mark. The entire unit will be clamped of the railings using the
appropriate commercial hardware.
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The Axxcelera Transceiver is attached behind the dish The Axxcelera unit only measures
10" x 10 ". It has a small Cat 5 wire that comes out of the unit to go to the D -mark. The
entire unit will be clamped to the railings using the appropriate commercial hardware.
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