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HomeMy Public PortalAboutORD11232 BILL NO. 89-23 SPONSORED BY COUNCILMAN VEILE ORDINANCE NO. //;7- 3 ;2- AN ORDINANCE OF THE CITY OF JEFFERSON, MISSOURI, AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE AN AGREEMENT WITH UNITED TELEPHONE OF MISSOURI ALLOWING THE INSTALLATION OF CABLE ACROSS PARK PROPERTY. BE IT ENACTED BY THE COUNCIL OF THE CITY OF JEFFERSON, MISSOURI, AS FOLLOWS: Section I. The Mayor and Clerk are hereby authorized and directed to execute an agreement with United Telephone of Missouri, allowing the installation of cable across park property. Section 2. The agreement shall be substantially the same in form and content as that agreement attached hereto as Exhibit A. Section 3. This Ordinance shall be in full force and effect from and after the date of its passage and approval. Passed J`, Or`l Approved !� Pr s' g Officer or ATTEST: City Clerk AGREEMENT TO PERMIT UNITED TELEPHONE COMPANY TO INSTALL, OPERATE AND MAINTAIN AN UNDERGROUND TELECOMMUNICATION LINE ON CITY PROPERTY AND COVENANT NOT TO SUE This AGREEMENT, made this 4 day of 1989 , by and between the City of Jefferson (hereinafter referred to as "City") by its Parks and Recreation Commission, (hereinafter referred to as "Commission") , and United Telephone Company, a Missouri corporation (hereinafter referred to as "Company"). WITNESSETH: WHEREAS, the Company is engaged in telecommunication, a portion of which has been designed to cross a parcel of real property, more parti- cularly described in "Exhibit "A", which is attached hereto and made a part hereof for all purposes, which property is located within the boundaries of Binder Park, a recreational park under City Park and Recreation Commission supervision; and, which use is controlled by certain regulations of the United States Department of the Interior, National Park Service under the provisions of the Land and Water Conservation Fund Act of 1965 (Public Law 88-578) ; and, WHEREAS, the Company is desirous of expediently and economically acquiring the necessary permission to construct, operate and maintain an underground telecommunication line for telephone service; NOW, THEREFORE, the parties agree as follows: 1 , Permitted Activities on Land. For and in consideration of Five Dollars ($5,00) and the promises hereafter made by Company, Commission hereby permits Company to enter upon and use the land described in "Exhibit A" for the purposes of locating, assembling, constructing, operating, patrolling, inspecting, maintaining, replacing, removing and reconstructing Company' s underground telecommunication facilities and any other facilities necessary and incidental thereto (hereinafter collectively "Company' s telecommunication facilities") . The foregoing shall include without limitation permission to: A. Park or otherwise leave idle, excavating machinery on the surface of the land described in "Exhibit A" which machinery will be removed from the land upon completion of the project; B. Disturb, dig, cut, excavate, blade, shovel and entrench the surface of the earth beneath the property described in "Exhibit All to the depth required for the installation and construction of Company' s tele- communication facilities; and Company covenants and agrees that at the conclusion of the installation and construction of Company' s telecom- cunication facilities, the surface of the land will be restored to the slope and grade at which it existed in nature at the time installation and construction commenced. Furthermore, Company covenants and agrees that the ground left bare by said installation will be prepared for re- seeding and re-seeded with such grasses and/or foliage as the Commission deems advisable; 2 C. Install , construct, operate and maintain any facilities necessary Ala AM to the maintenance of the underground telecommunication facilities; no TV above ground structures, equipment, or assemblies are permitted without additional prior written approval of the Director of Parks and Recreation; D. Demolish, destroy, cut or open fences, if any, on or along the land described in "Exhibit A"; however, Company shall restore such fences as it may have cut, opened, or demolished to as good or better condition as before said cutting or opening, and Company agrees to keep said fences closed during its entry upon the land described in "Exhibit A" except when it is necessary to have them open in order to perform the activities permitted hereunder; and Company may install , maintain and use gates in fences within the land described in "Exhibit A" which cross or hereafter might cross the route of the telecommunication facilities; AMh E. Patrol , inspect and maintain the telecommunication facilities; F. Use existing non-public, City owned, roads, or other roads in Binder Park for purposes of ingress and egress to the land described in "Exhibit A". Company agrees to pay for damages to said roads, if any caused by Company' s use thereof under this Agreement, pursuant to paragraph 3 of this Agreement. 2. Covenant Not to Sue. The City and the Commission hereby covenant and agree that neither of them will ever institute any suit or action at law or equity against Company nor institute, prosecute or in any way aid in the institution or prosecution of any claim, demand, action or cause of action for damages, costs, expenses or compensation against Company for or on account of any . 3 act, the doing or performance of which is expressly or impliedly permitted by paragraph 1 of this Agreement and all subparagraphs thereof. The City and the Commission understand and agree that this convenant specifically prohibits either or both of them from ever instituting any suit or action in law or equity, in trespass, inverse condemnation, nuisance or sub- stantive equivalents to these actions, for or on account of Company doing or performing any act expressly or impliedly permitted by paragraph 1 of this Agreement and all subparagraphs thereof. This Agreement shall constitute a complete and absolute defense to any action, legal or equi- table, in which the City or any agency thereof, including without limita- tion the Commission, seeks relief on the basis of the Company' s doing an act that is expressly or impliedly permitted by paragraph 1 of this Agree- ment; provided that nothing in this Agreement shall be construed as a release of Company from liability for failing to exercise the requisite degree of care in doing or performing the acts permitted by paragraph 1 , nor shall anything contained herein be construed as a waiver by Company of any lawful defense to any action based on an alleged failure to exercise the requisite degree of care in doing or performing the acts permitted by paragraph 1 . Nothing in this Agreement shall be construed as a waiver of or an agreement not to enforce the right of the City or the Commission to seek full and complete performance of Company' s obligations under this Agreement and any compensatory damages connected with Company' s failure to perform. ® 4 3. Damages. Any and all damages to real or personal property owned or lawfully possessed by the City or the Commission which arise out of and are directly and proximately caused by Company' s entry upon the land described in "Exhibit A" during or subsequent to the assembling, construction and installation of Company' s telecommunication facilities or doing or per- forming the other acts permitted by paragraph 1 , shall be paid by the Company as such damages accrue and become ascertainable. A. Future Cooperation Required. Company specifically agrees that it will enter upon the land described in "Exhibit A" for the purposes permitted in paragraph 1 hereof and no other purpose, and that it will not interfere with the activities con- ducted on said land except to the extent required for the assembling, con- struction, owning, operating, patrolling, inspecting, maintaining, repair- ing, replacing, removing, and reconstruction of Company' s telecommu- nication facilities as provided herein. Commission shall continue to use and enjoy the surface of the land described in "Exhibit A" as it did prior to the execution of this Agreement provided such use or uses shall not interfere with or endanger the assembling, constructing, owning, operat- ing, patrolling, inspecting, maintaining, repairing, replacing, removing and reconstructing of Company' s telecommunication facilities. The City and/or the Commission may enter agreements with others who offer electric , gas or water service, which agreements affect the land described in "Exhibit A" , provided that they do not interfere with Company' s telecom- munication facilities or Company' s doing the "permitted activities" set out in paragraph 1 . 5 In any case where proposed activities of the Commission or of any other entity may affect or be affected by Company' s telecommunication facilities located on the land described in "Exhibit A", the commission or the City shall provide Company with reasonable advance written notice and opportunity for review of said proposed activities, including without limitation plans and drawings for any construction of improvements on or adjacent to the land described at "Exhibit A". Company shall consent to said proposed activities if in its reasonable discretion, Company con- cludes that said proposed activities should not interfere with the operation, inspection, maintenance, replacement, reconstruction and removal of Company' s telecommunication facilities or pose a danger to persons or property due to Company' s telecommunication facilities. In the event that Company consents in writing to said proposed activities, the City and/or the Commission shall require that said activities be performed in a careful and safe manner so as to avoid danger to persons and property and shall warn and instruct all persons engaged in said activities as to the location of Company' s telecommunication facilities and the dangers associated therewith. If the City or the Commission is to perform said work on or adjacent to the land described in "Exhibit A" , United Telephone shall be named as an additional insured on any public liability insurance policies carried by the City and/or Commission and applicable to said project; or if said work is to be performed by others, City and/or Commission shall require said others to name United Telephone as additional insured on public liability insurance policies which City may require said others to carry in connection with said work, or City and/or Commission shall require said others to give United Telephone such other assurances or indemnities against liability as City or Commission may 6 require said others to provide as protection for the City or the Commis- sion in connection with said work. If the proposed activities of the City, the Commission or any other entity would interfere with Company' s permitted activities or pose a danger to Company' s telecommunication facilities located on the land described in "Exhibit A" , or would pose a danger to persons or property due to Company' s telecommunication facilities, and if Company agrees to re-route or modify its telecommunication facilities to accommodate there- to, the City and Commission shall give its permission for Company to use alternate land, without charge to Company, and Company' s costs for said modification or re-routing of Company' s facilities shall be reimbursed. S. Duration of Covenants. The promises and covenants made herein are intended by the parties to endure until such time as Company abandons or permanently removes all Company' s telecommunication facilities which are the subject matter here- of. Therefore, in the event the land described in "Exhibit A" is sold, conveyed or bargained away, a condition of such sale shall be that the buyer/grantee of such property shall grant an easement to Company which conveys permanent rights and privileges identical to the permitted acts set forth in paragraph 1 of this Agreement, and any other rights necessary and proper to the continued operation, maintenance, inspection, replace- ment, removal , and reconstruction of Company' s telecommunication facilities located in the property described in "Exhibit A." If such an easement is not granted at the closing of the sale, the sale shall be null and void. ® 7 6. Default. For any material breach of the terms of this Agreement, the aggrieved party shall have available all lawful remedies not inconsistent with the covenant not to sue made in this Agreement. 7. Intent. The parties intend that this Agreement and covenant not to sue shall constitute a covenant running with the land for the benefit of the Company, its successors and assigns. The parties mutually agree that they will use best efforts or prepare any documents which in the future are required to fully accomplish this intent and all other desired effects of this Agreement. To acknowledge the solemnity of our covenants and agreements, and in witness of this Agreement, we have set our hands this G day of 1 981 CITY OF JEFFERSON UNITED TELEPHONE OF MISSOURI PA b RECREATION COMMISSION APP?OVED h a i a n Steven L. McMahon As)u FORM Vice President — Operations nl�! ATTEST: ATTEST* CITY OF JEFFERSON a ATTEST: • v 8 ' s EXHIBIT "A" A strip of land 16.50 feet wide across part of the Southeast Quarter of the Southeast Quarter and part of the Southeast Quarter of the Southwest Quarter of Section 1 , Township 44 North, Range 13 West, Cole County, Missouri, said 16.50 foot wide strip lying northerly of and contiguous with the northerly line of U.S. Route 50, the northerly line of said U.S. Route 50 being more particularly described as follows: Beginning at the southwest corner of Lot 4 of ERHARDT-HIGH SUBDIVISION, SECTION 2, as per plat of record in Plat Book 11 , Page 410, Cole County Recorder's Office, the southwest corner of said Lot 4 being the point of intersection with the easterly line of the Southwest Quarter of the Southeast Quarter of said Section 1 with the northerly line of U.S. Route 50; thence along the northerly line of said U.S. Route 50 the following courses: S86 014'51"W, 690.60 feet; thence NO3 045'09"W, 5.00 feet; thence S86 014151"W, 1400.00 feet; thence NO3 045'09"W, 20.00 feet; thence S86 014151"W, 150.00 feet; thence S03 045'09"E, 25.00 feet; thence S86014151"W, 406.36 feet to the westerly line of the Southeast Quarter of the Southwest Quarter of said Section 1 and the point of termination of this easement. 9