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;
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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
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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.
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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 .
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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
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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.
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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:
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' 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.
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