HomeMy WebLinkAboutEdge Wireless, LLC 2001-06-30 Active . w
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BACK-UP GENERATOR AGREEMENT
This Back-Up Generator Agreement is made and entered into the�day of June 2001
("Effective Date"),by and between the City of iJkiah, 300 Seminary Road,iJkiah, California
95482 ("City ")and Edge Wireless LLC,an Oregon limited liability company,Attention: Sr.
Real Estate Manager, 600 S W Columbia, Suite 7200, Bend, Oregon 97702 ("Edge").
RECITALS:
1. City and Edge have entered a License Agreement under which Edge will conshvct a
100 foot tower for communications antennas, including PCS Wireless Telephone antennas used
by Edge, and an equipment building to house communications equipment, including equipment
used by Edge.
2. The property which Edge is authorized to use under its License Agreement with City
is located at the IJkiah Civic Center.
3. As a provider of wireless telephone service,Edge requires a back-up generator which
can provide electrical power to its communications equipment in the event of an interruption in
or loss of regulaz electric service.
4. The City maintains a back-up diesel generator at the IJkiah Civic Center for use when
the Civic Center experiences a loss of or interruption in regular electric service.
5. The City is willing to make that back-up diesel generator available to Edge for use
during the term of its license under the License Agreement,provided Edge pays all costs
associated with its use of the City's diesel generator.
AGREEMENT:
In consideration of and reliance upon the above-recitals and the terms and conditions as
fwther stated herein, the parties agree as follows:
1. The City will fiuvish Edge with emergency electrical power for its communications
equipment located on property Edge has licensed from the City (the"licensed premises'�,during
such tnne that all of the following conditions aze met:
A. the City maintains a diesel generator at the iJkiah Civic Center with sufficient
excess capacity above the City's requirements for emergency power generation to satisfy the
needs of Edge for an emergency power source for its communications equipment on the licensed
premises;
B. The License Agreement remains in effect;and
C. Edge makes all payments required by this Agreement in accordance with this
Agreement.
2. Edge shall pay a fee for the auailability and use of the back-up power provided under
this Agreement equal to the actual cost of furnishing power to Edge during emergencies,payable
within ten(10) days after the City provides Edge with a bill for such costs.
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Edge expressly agrees that the City may temunate this Agreement at any time that it determines,
in its sole discretion,that the diesel generator does not have sufficient capacity to provide
emergency power to Edge,upon not less than 30 days prior written notice to Edge. If the City
terminates tlris Agreement prior to termination of the License Agreement,or if the City is
othenvise unable to provide emergency power to Edge, Edge shail be entitled to use a portabie
backup generator to provide electricity to its equipment in the event of a power outage.
3. Edge will receive back-up power in emergencies only as part of the same emergency
power system operated by the City for the Civic Center. Edge understands and agrees that the
diesel generator is designed to commence operation automatically,when there is an interruption
or loss of power at the Civic Center, but there is a brief period after the power loss or interruption
before the diesel generator begins producing emergency power. Edge expressly assumes the risk
of any damage to its equipment, data or software caused by this interruption of power.
A. Edge hereby waives and releases the City from any claim for damages or loss
resulting or alleged to result from the provision of emergency power under this Agreement or the
failure of the City to furnish emergency power hereunder,regardless of the cause. Tlus waiver
and release extends to any such claim or damage whether based on any act or omission of the
City or its officers, agents, employees, contractors or volunteers and whether based on strict
liability,negligence, gross negligence or intentional wrongdoing.
B. Edge shall protect and defend the City against any claim for money made by
third parties,including customers of Edge or its�liates or contractors, against the City,if the
claun is based on the City's obligation to furnish emergency power under this Agreement,
regazdless of whether the act or omission involves strict liability or allegedly negligent or
intentionally wrongful acts or omissions of the City or its officers, agents,employees,contractors
or volunteers. All obligations unposed on Edge by this Subparagraph B will extend to the City
and its officers, agents, employees, and contractors.
Under its obligation to defend the City, Edge shall provide at its expense such attorneys,
investigators, consultants, experts or other professionals as may be necessary to defend any such
claim or demand and sha11 pay all expenses associated with such defense, including any expenses
incurred by the City to assist or participate in such defense. If Edge fails to provide competent
representation when necessary to prevent any prejudice to the City's interests,the City may
retain such services and incur such expenses as may be reasonably prudent to protect its interests
and Edge shall pay any such expenses incurred by the City within 30 days of the date the City
provides the Edge with written notice of the expense and a demand for payment.
In agreeing to indemnify City under this pazagraph,the Edge shall pay any settlement or
judgment resulting from a claim,demand, cause of action or suit covered by this agreement to
indemnify the City.
This indemnification and hold harmless provision of ttus Agreement shall remain in effect,even
if the Agreement is otherwise terminated or fully performed.
4. Ttris Agreement shall be govemed by the laws of the State of California Any action
filed by either party arising out of this Agreement shall be filed in the state courts in Mendocino
County, each party consenting to the jurisdiction and venue of such courts.
5. Miscellaneous:
5.1. Edge shall not assign any interest in this Agreement,and shall not transfer
any interest in the same(whether by assignment or novarion),without the prior written consent
of the City;provided that no consent shall be required for assignment of this Agreement to a
permitted assignee of the License Agreement.
5.2 The parties hereby agree that all applicable Federal, State and local rules,
regulations and guidelines not written into this Agreement shall hereby prevail during the period
of this Agreement.
5.3 This Agreement contains the entire agreement among the parties and
supersedes all prior and contemporaneous oral and written agreements, understandings, and
representations among the parties. No amendments to this Ageement shall be binding unless
executed in writing by all of the parties.
5.4 No waiver of any of the provisions of this Agreement shall be deemed,or
shall constitute a waiver of any other provision, nor shall any waiver constitute a continuing
waiver. No waiver shall be binding unless executed in writing by the pariy making the waiver.
5.5 Whenever notice,payment or other communication is required or permitted
under this Agreement it shall be deemed to have been given when personally delivered or when
deposited in the United Sates mail with proper first class postage affixed thereto and addressed
as stated in the first pazagraph of this Agreement.
5.6 This Agreement may be executed in one or more duplicate originals bearing
the original signature of both parties and when so executed any such duplicate original shall be
admissible as proof of the eacistence and terms of the Agreement between the parties.
WHEREFORE,the parties have entered this Agreement on the date first written above.
THE CITY OF UKIAH EDGE WIRELESS,LLC
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By: By:
Printed: Printed: �Z��
Title: City Manager Tifle: Director of Svst?ms Development