GENERATOR USE AGREEMENT THIS GENERATOR USE

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GENERATOR USE AGREEMENT
THIS GENERATOR USE AGREEMENT (the "Agreement") is executed as of
this ~ day of ~ , 20
between the EUREKA FIRE PROTECTION
DISTRICT, with its
mailing address of P.O. Box 97, Eureka, Missouri 63025,
hereafter designated User, and CYBERTEL CELLULAR TELEPHONE COMPANY
d/b/a Verizon Wireless, with its principal office located at One Verizon Way, Mail Stop
4AW100, Basking Ridge, New Jersey 07920, hereafter designated Provider. The User
and Provider are at times collectively referred to hereafter as the "Parties" or individually
as the "Party".
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BACKGROUND
Provider, as lessee, entered into a Lease (the "Lease") with Camp Wyman, Inc.
("Original Ground Lessor"), as lessor, dated September 29, 1993, pursuant to which
Provider leased approximately 2,688 square feet of land (the "Original Leased
Premises"), together with an access easement, for the construction, maintenance and
operation of a communication tower structure, generator and related equipment (the
"Facilities") . Original Ground Lessor subsequently assigned the Lease to Lawless
Homes, Inc. ("Lawless") pursuant to an Assignment of Lease dated December 15,
1995, recorded in the Office of the Recorder of Deeds of St. Louis County, Missouri in
Book 10689, at Page 1699. By amendment dated October 17, 1996, Provider and
Lawless relocated and increased the leased area to approximately 25,040 square feet
of land (the "Property"), which Property is described in Exhibit "A", attached hereto and
incorporated herein by reference.
By a Second Amendment to Lease and
Memorandum of Lease dated December 17, 1996, Provider and Lawless removed the
Original Leased Premises as the premises under the Lease.
Provider assigned the Lease to Crown Castle GT Company LLC ("Crown")
pursuant to an Assignment and Assumption Agreement dated June 29, 2001, recorded
in Book 13254, at Page 574 (the "Assignment") . Contemporaneously with entering
the Assignment, Crown and Provider entered into a Lease Supplement dated June 29,
2001, pursuant to a Global Lease Agreement dated January 31, 2000, as subsequently
amended (the "Lease Supplement") , between Crown and GTE Wireless Incorporated,
whereby Provider leased from Crown the Facilities located on the Property.
In
connection with Provider's use of the Property, Provider has purchased and installed an
emergency power generator (the "Generator") for the purpose of providing emergency
back-up power to the Provider's Facilities and for such other uses as Provider deems
necessary in Provider's sole discretion.
User has requested, and Provider has agreed to permit User, to draw electricity
from the Generator solely in accordance with the terms and conditions of this
Agreement.
STLC Eureka-Generator Use Agreement
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AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
the Parties agree as follows:
1.
Recitals. The Parties hereby affirm the recitals made in this Agreement.
2.
Use. During the term of this Agreement, Provider hereby grants to User a
right to draw electricity from the Generator subject to the following terms, conditions and
lin:iitations:
(a)
User shall have the right to draw electricity from, or
otherwise use, the Generator only during times of
emergency and only during times when Provider elects to
operate the Generator, in Provider's sole discretion. User
acknowledges and agrees that: (i) Provider is not obligated
to operate the Generator for the benefit, or at the direction,
of User; (ii) Provider may discontinue its operation of the
Generator at any time, in Provider's sole discretion, without
notice to or consent from User; (iii) User's use of the
Generator is an ancillary benefit that may not be relied upon
by User for any reason whatsoever.
(b)
User shall notify Provider of the use of the Generator before
User draws electricity from, or otherwise uses the Generator.
User shall notify Provider by calling the Network Operations
Center at (800) 264-6620.
(c)
During the Generator's operation, User shall not use more
than a total of thirty (30) Amps of electricity from the
Generator at any given time. Provider shall designate a
point of distribution for User's connection to the Generator.
User acknowledges that the point of distribution will be
connected to two (2) fifteen (15) Amp circuit breakers (the
"Breaker"), and User's attempt to draw electricity in excess
of a total of thirty (30) Amps shall result in an immediate
discontinuation of electrical service to User without notice to
User. User shall pay for all costs and expenses associated
with connecting User's facilities to the point of distribution
provided by Provider.
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(d)
(e)
User has no right to access, service, operate or otherwise
control the Generator.
User shall not permit any third party to use the Generator.
User acknowledges and agrees that the rights granted
herein are personal to User and may not be shared,
assigned or otherwise transferred to a third party.
3.
Restrictions on Operation of Generator. The Generator will not produce
sound levels in excess of 65 decibels thirty (30) feet from the unit. The Generator will
be cycled on weekdays during daylight hours.
4.
Priority. User acknowledges and agrees that the Provider's right to use
the Generator is primary and superior to any right granted to User by this Agreement.
In the event that Provider requires exclusive use of the Generator, User shall have no
right to use the Generator. Additionally, in the event that Provider's use of the
Generator renders less than thirty (30) Amps of electricity available to User, then User
shall solely have the right to use that portion of excess electricity not being used by
Provider.
5.
Rights of Provider. In addition to Provider's rights as the owner of the
Generator, Provider hereby expressly reserves the following rights with respect to the
Generator:
(a)
the right to use the Generator at any time, which right shall
also run, at the option of Provider, to Provider's visitors,
licensees, invitees, customers and tenants;
(b)
the right to alter, remove, repair and maintain the Generator;
(c)
the right to access the Generator at all times;
(d)
the right to install, construct and maintain any and all utility
lines and utility equipment necessary to operate the
Generator;
(e)
the right to discontinue operation of the Generator at any
time without prior notice to or consent from User. User
acknowledges that nothing contained in this Agreement
obligates Provider to maintain or operate a generator at the
Property; and
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(f)
the right to any other use of the Generator which does not
violate Local, State and Federal laws, rules and ordinances.
6.
Term. This Agreement is effective March 1, 2009 and shall terminate
upon the earlier of: (1) the termination or sooner expiration of the Lease Supplement;
(2) User's breach of this Agreement; (3) Provider's removal of the Generator from the
Property; (4) thirty (30) days after User notifies Provider that User is terminating its use
of the Generator; or (5) Provider's replacement of the Generator with a generator that
lacks the capacity to service User's needs pursuant to the terms and conditions of this
Agreement.
7.
Waiver and Release. WHETHER THE CAUSE OF ANY DAMAGE, LOSS
OR LIABILITY IS INSURABLE, INSURED OR NOT INSURED, FORESEEN OR
UNFORESEEN,
PROVIDER
AND
ITS
REPRESENTATIVES,
AGENTS
CONTRACTORS, SUBCONTRACTORS, INVITEES OR LICENSEES SHALL NOT, IN
ANY EVENT, BE LIABLE TO USER OR ITS REPRESENTATIVES, AGENTS,
CONTRACTORS, SUBCONTRACTORS, INVITEES OR LICENSEES FOR CLAIMS
FOR ANTICIPATORY PROFITS, DIRECT, CONSEQUENTIAL, INCIDENTAL,
EXEMPLARY, PUNITIVE, OR ANY OTHER DAMAGES OF ANY NATURE ARISING
AT ANY TIME, FROM ANY CAUSE WHATSOEVER, WHETHER ARISING IN TORT,
CONTRACT, WARRANTY, STRICT LIABILITY, BY OPERATION OF LAW, OR
OTHERWISE, EVEN IF CAUSED BY PROVIDER, ITS REPRESENTATIVES',
AGENTS', CONTRACTORS', SUBCONTRACTORS', EMPLOYEES', INVITEES' OR
LICENSEES' NEGLIGENCE OR FAULT, RELATING TO (DIRECTLY OR
INDIRECTLY), RESULTING FROM OR ARISING OUT OF THE OWNERSHIP,
MAINTENANCE (OR LACK THEREOF), REMOVAL, REPAIR, OPERATION OR
MALFUNCTION OF THE GENERATOR OR THE BREAKER.
8.
Indemnification. To the extent permitted by law, User shall indemnify and
hold Provider and its representatives, agents, contractors, subcontractors, employees,
invitees and licensees harmless against any claim of liability or loss from personal injury
or property damage resulting from or arising out of the negligence or willful misconduct
of User, its employees, contractors or agents, except to the extent such claims or
damages may be due to or caused by the negligence or willful misconduct of Provider
or its employees, contractors or agents.
9.
Insurance. User agrees that at its own cost and expense, User will
maintain commercial general liability insurance with limits not less than Two Million
Dollars ($2,000,000) for injury to or death of one or more persons in any one occurrence
and Five Hundred Thousand Dollars ($500,000) for damage or destruction to property in
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any one occurrence. User further agrees that it will include Provider as an additional
insured on the aforesaid general liability insurance policy.
10.
Default. Except as otherwise provided in this Agreement, in the event that
User defaults on any term, condition or provision of this Agreement, Provider shall have
the right to terminate this Agreement by providing User five (5) days' written notice of
such termination.
11.
Notices.
All notices hereunder must be in writing and shall be
deemed validly given if sent by certified mail, return receipt requested or by commercial
courier, provided the courier's regular business is delivery service and provided further
that it guarantees delivery to the addressee by the end of the next business day
following the courier's receipt from the sender, addressed as follows (or any other
address that the Party to be notified may have designated to the sender by like notice):
User:
Eureka Fire Protection District
4849 Highway 109
Eureka, Missouri 630265
Attention: Scott A. Kavanagh
Provider:
Cybertel Cellular Telephone Company
d/b/a Verizon Wireless
180 Washington Valley Road
Bedminster, New Jersey 07921
Attention: Network Real Estate
Notice shall be effective upon mailing or delivering the same to a
commercial courier, as permitted above.
12.
Attorneys' Fees. Either Party may enforce this instrument by appropriate
action and the prevailing party shall recover as part of its costs reasonable attorneys'
fees, including, without limitation, costs and attorneys' fees incurred in bankruptcy or on
appeal.
13.
Parties and Terms. The use of any gender shall be deemed to refer to the
appropriate gender, whether masculine, feminine or neuter, and the singular shall be
deemed to refer to the plural where appropriate, and vice versa.
14.
Captions. Headings and paragraph captions in this Agreement are only
for convenience of reference and shall not be considered in interpreting, nor construed
to limit, the context or meaning of the text.
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15.
Severability. If any term, clause or prov1s1on hereof is held invalid or
unenforceable by a court of competent jurisdiction, such invalidity shall not affect the
validity or operation of any other term, clause or provision; and such invalid term, clause
or provision shall be deemed to be severed from the Agreement.
16.
Modification and Termination. It is agreed and understood that this
Agreement contains all agreements, promises and understandings between the
Provider and User and that no verbal or oral agreements, promises or understandings
shall be binding upon either Provider or User in any dispute, controversy or proceeding
at law, and any addition, variation or modification to this Agreement shall be void and
ineffective unless made in writing and signed by the Parties. In the event any provision
of the Agreement is found to be invalid or unenforceable, such finding shall not affect
the validity and enforceability of the remaining provisions of this Agreement. The failure
of either Party to insist upon strict performance of any of the terms or conditions of this
Agreement or to exercise any of its rights under the Agreement shall not waive such
rights and such Party shall have the right to enforce such rights at any time and take
such action as may be lawful and authorized under this Agreement, either in law or in
equity.
Applicable Laws.
User shall use the Generator as may be required or
17.
as permitted by applicable laws, rules and regulations.
18.
Governing Law. This Agreement and the performance thereof shall be
governed, interpreted, construed, and regulated by the laws of the State in which the
Property is located.
<Signature Page to Follow>
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IN WITNESS WHEREOF , the Parties hereto have set their hands and affixed
their respective seals the day and year first above written.
USER:
EUREKA FIRE PROTECTION DISTRICT
~~me~;:~Coai
Title:
cMdti
Date:
-Jh>~ ,9
PROVIDER:
CYBERTEL CELLULAR TELEPHONE
COMPANY d/b/a VERIZON WIRELESS
STLC Eureka-Generator Use Agreement
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EXHIBIT A
DESCRIPTION OF PROPERTY
A tract of land being part of Lot 30 of "Louis Courtois Tract" in Township 44
North, Range 3 East, St. Louis County, Missouri and being more particularly
described as follows:
Commencing at the Northwest corner of said Lot 30; thence along the West line
of said Lot South 00 degrees 31 minutes 34 seconds West, 913.24 feet to the
Point of Beginning; thence leaving said West line South 67 degrees 16 minutes
48 seconds East, 195.44 feet to a point; thence South 22 degrees 43 minutes 12
seconds West, 22.62 feet to a point of curvature; thence along a curve to the left
having a radius of 640.00 feet, an arc distance of 113.75 feet to a point; thence
leaving said curve North 77 degrees 27 minutes 48 seconds West, 142.12 feet to
a point on said West line; thence along said West line North 00 degrees 31
minutes 34 seconds East, 173.77 feet to the Point of Beginning.
Said premises being situated in St. Louis County, Missouri and containing 25,040
square feet or 0.575 acre, more or less.
TOGETHER WITH all right, title and interest of granter in and to the following
described Access and Utility Easement:
A strip of land fifty feet wide through part of Lots 30, 37, 38 and 40 of the "Louis
Courtois Jr. Tract" in U.S. Survey 3206, Township 44 North, Range 3 East, St.
Louis County, Missouri and being more particularly described as follows:
Commencing at the intersection of the Westerly line of said Lot 40 and the
Northerly line of State Highway 44; thence along said Northerly line, South 89
degrees 28 minutes 00 seconds East, 25.00 feet to the Point of Beginning of the
centerline of the Ingress/Egress and Utility (50 foot wide) Easement as described
as follows: thence North 00 degrees 24 minutes 16 seconds East, 787.04 feet to
a point of curvature; thence along a curve to the left having a radius of 300.00
feet, an arc distance of 142.53 feet to a point of reverse curvature; thence along
a curve to the right having a radius of 300.00 feet, an arc distance of 79.17 feet
to a point of tangency; thence North 11 degrees 41 minutes 51 seconds West, a
distance of 312.58 feet to a point of curvature; thence along a curve to the left
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having a radius of 150.00 feet, an arc distance of 319.84 feet to a point of
tangency; thence South 46 degrees 07 minutes 58 seconds West, a distance of
255.43 feet to a point of curvature; thence along a curve to the right having a
radius of 373.00 feet, an arc distance of 874.91 feet to a point of tangency;
thence North 00 degrees 31 minutes 34 seconds East, 574.90 feet to a point of
curvature; thence along a curve to the right having a radius of 615.00 feet, an arc
distance of 138.92 feet to a point; thence North 77 degrees 27 minutes 48
seconds West, a distance of 25.00 feet to the point of terminus of said centerline.
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