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HomeMy WebLinkAboutC-8842-1 - License Agreement for Use of Amateur Radio Repeaters1 N 00 Q� LICENSE AGREEMENT 1 WITH THE NEWPORT BEACH REPEATER CLUB V FOR USE OF AMATEUR RADIO REPEATERS 1. PARTIES AND DATE This LICENSE AGREEMENT ("Agreement") is made as of MAO C-%4 3 , 2022 ("Effective Date"), by and between the CITY OF NEWPORT BEACH, a municipal corporation and charter city ("Licensor"), and the NEWPORT BEACH REPEATER CLUB, a unincorporated association ("Licensee"). Licensor and Licensee are sometimes individually referred to as a "Party" and collectively as the "Parties." 2. RECITALS 2.1. Licensor is the owner of two (2) amateur radio repeaters ("Repeaters") mounted on the radio tower at the City of Newport Beach utilities yard, located at 949 West 16th Street, Newport Beach, California ("Premises"), as described on Exhibit "A" attached hereto and incorporated herein by this reference. 2.2. Licensee seeks to use the Repeaters for amateur "HAM" radio operations in accordance with applicable law, and when requested by Licensor, to provide consulting to Licensor regarding maintenance, operation, repair, replacement, and upgrades of Licensor's radio equipment. NOW, THEREFORE, for good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows: 3. LICENSE TO USE REPEATERS 3.1. Licensor hereby issues a revocable nonexclusive nonassignable license to Licensee, subject to the limitations and restrictions set forth in this Agreement, to use the Repeaters for amateur "HAM" radio purposes in accordance with all applicable law. 3.2. This license shall be subject and subordinated to all deeds, leases, easements, dedications, conditions, covenants, restrictions, encumbrances, and claims of title which may affect the Repeaters or Premises. Licensee shall not infringe on any of the foregoing without the written approval of Licensor, and any such affected party. In case of such infringement, Licensor may terminate this Agreement upon reasonable prior written notice to Licensee. Nothing in this Agreement shall be deemed to grant, convey, create, or vest a perpetual real property interest in any portion of the Repeaters or the Premises in Licensee, including any fee or leasehold interest, easement, or any franchise rights. This Agreement shall not grant Licensee any present or future rights to the Repeaters or the Premises, other than as set forth herein. 3.3. Licensee acknowledges and understands that the Repeaters are public property dedicated for public purposes and that these purposes have priority over any other use, including Licensee's use of the Repeaters. Licensee shall not interfere with Licensor's use of the Repeaters or Premises. 3.4. This license is a nonexclusive license, and Licensor reserves the right to allow the Repeaters to be used by other parties in its sole and absolute discretion. 3.5. Licensor reserves the right to make additions, deletions, or modifications to the Repeaters or the Premises in its sole and absolute discretion. 4. QUALIFICATION TO USE OF REPEATERS 4.1. This license is expressly made contingent upon Licensee obtaining and maintaining all applicable certificates, permits, licenses, and any other approvals or authorizations that any federal, state, or local authority may require for use of the Repeaters. 4.2. Licensee shall only permit use of the Repeaters by its members and guests who are licensed and qualified to use the Repeaters in accordance with applicable law. Licensee shall maintain an updated and accurate roster of Licensee's members and guests which identifies each name, address, phone number, email address, and call sign. Licensee shall furnish a copy of its roster to Licensor when requested by Licensor for law enforcement purposes, regulatory purposes, or to verify Licensee's compliance with this Agreement. 5. TERM OF AGREEMENT 5.1. The initial term of this Agreement shall commence on the Effective Date and continue through December 31, 2022, unless otherwise terminated in accordance with the provisions of this Agreement ("Initial Term"). This Agreement shall automatically extend for successive one (1) year periods (each a "Renewal Term") on the same terms and conditions as set forth in this Agreement unless either Party notifies the other Party in writing of its intention not to extend this Agreement at least thirty (30) days prior to the expiration of the Initial Term or any Renewal Term, as applicable. Notwithstanding the foregoing, this Agreement shall not automatically extend beyond December 31, 2026. Newport Beach Repeater Club Page 2 5.2. Either Party may terminate this Agreement with or without cause at any time upon written notice to the other Party. 5.3. This Agreement shall terminate, without notice: (i) upon the institution by or against Licensee of insolvency, receivership, or bankruptcy proceedings or any other proceedings for the settlement of Licensee's debts; (ii) upon Licensee making an assignment for the benefit of creditors, or, (iii) upon Licensee's dissolution or ceasing to do business. 6. USE OF RADIO FREQUENCIES 6.1. Licensee shall use the Repeaters only for the radio frequencies expressly authorized by this Agreement. 6.2. Licensee shall not use the Repeaters to broadcast or transmit any data or signal on any frequency not expressly authorized by this Agreement, including in the event of an emergency, unless expressly authorized by Licensor in writing. 6.3. Licensee shall not broadcast or transmit any data or signal on any frequency reserved exclusively for police, fire, or other exclusive public agency use, unless expressly authorized by Licensor in writing. 6.4. Licensee shall use the Repeaters only in accordance with all applicable laws, including but not limited to, the Federal Communications Commission's rules and regulations, and any delegated or successor entity thereof. 6.5. Licensee shall not operate the Repeaters so that they cause radio frequency interference with other communication facilities or frequencies. 7. CONSULTATION Upon written request from Licensor, Licensee agrees to provide consulting and advice to Licensor regarding maintenance, operation, repair, replacement, and upgrades of Licensor's radio equipment, including but not necessarily limited to, the Repeaters. 8. ENTRY UPON PREMISES 8.1. No grant of an easement or other interest in land is intended by this Agreement. 8.2. This Agreement does not confer any right, license, permission, or authorization whatsoever for Licensee to enter upon the Premises. Newport Beach Repeater Club Page 3 8.3. Licensor shall not provide Licensee with a key or any other device to access the Premises. 8.4. Licensee shall not enter upon the Premises without (i) Licensor's prior written authorization; (ii) Licensor's staff accompanying Licensee at all times while Licensee is upon the Premises; and (iii) complying with all rules, regulations, policies, requests, and directions of Licensor regarding access to the Premises and activity upon the Premises. 8.5. Licensee acknowledges that if Licensor authorizes Licensee to access the Premises, the Premises shall be accessed in an "as -is" condition, with no warranty, express or implied from Licensor as to any latent, patent or unforeseeable condition of the Premises, including its suitability for occupation or use by Licensee. 8.6. Licensee shall request access to the Premises from Licensor by contacting Licensor's Project Administrator who may deny access in its sole discretion, and may revoke access previously authorized at any time in its sole discretion. 9. ASSUMPTION OF THE RISK Licensee acknowledges and agrees that Licensee shall solely bear all risk of loss, damage, or injury arising out of Licensee's and its members, officers, contractors, agents, volunteers, guests, or employees ("Licensee Parties") use of the Repeaters and access to the Premises. 10.INDEMNITY 10.1. To the fullest extent permitted by law, Licensee agrees to indemnify, defend (at Licensor's option), and hold harmless Licensor, its officials, officers, employees, agents, volunteers, and representatives ("Indemnified Parties") from and against any and all claims, losses, damages, defense costs, or liability, of any kind or nature whatsoever (collectively referred to hereinafter as "Claims"), arising out of or in connection with Licensee Parties' (i) acts, errors, or omissions, (ii) performance or failure to perform this Agreement, (iii) use of the Repeaters, (iv) occupancy of Premises, or (iv) work performed by, or on behalf of, Licensee, relative to this Agreement. 10.2. Notwithstanding the foregoing, nothing herein shall be construed to require Licensee to indemnify the Indemnified Parties from any Claims arising from the sole negligence, active negligence or willful misconduct of the Indemnified Newport Beach Repeater Club Page 4 Parties. Nothing in this indemnity shall be construed as authorizing any award of attorneys' fees in any action on or to enforce the terms of this Agreement. 10.3. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. Any policy limits do not act as a limitation upon the amount of indemnification to be provided by Licensee. 10.4. The obligations set forth in this Section shall survive the termination or expiration of this Agreement. 11. POSSESSORY INTEREST TAXES Pursuant to California Revenue and Tax Code Section 107 et seq., a private party entering into a written contract with any local public entity of government whereby a possessory interest subject to property taxation may be created, could be subject to, and responsible for, the payment of property taxes levied on the interest. Licensee shall be solely responsible for any and all possessory interest taxes, if any, that may arise out of, in connection with, or related to this Agreement. Licensee agrees to timely pay all such taxes directly to the taxing authority. 12. INDEPENDENT CONTRACTOR 12.1. The Parties agree that this Agreement is an arms -length transaction and that they do not intend to create a joint venture, partnership, or any other joint enterprise, and additionally, at no time is either party the principal or agent of the other. Licensee Parties shall at all times be and shall remain, as to Licensor, wholly independent. Licensee shall not at any time or in any manner represent that it or any of its agents or employees are agents or employees of Licensor. 12.2. Licensor shall not be liable or responsible for any benefits, including, but not limited to, worker's compensation, disability, retirement, life, unemployment, health or any other benefits of Licensee Parties. Licensee agrees that it shall not sue or file a claim, petition or application therefor against Licensor or any of its officers, employees, agents, representatives or sureties for any such benefits. 13. INTERRUPTIONS OF USE If it is necessary or convenient for Licensor to shutoff power to, disconnect, or otherwise disable the Repeaters, Licensor shall have the right to do so in its sole and absolute discretion. Licensor shall not be liable to Licensee or any other party for any interference with the use of the Repeaters. Newport Beach Repeater Club Page 5 14.ASSIGNMENT AND SUBLETTING Licensee shall not assign or transfer this Agreement or sub -license all or any portion of use of the Repeaters without the prior written consent of Licensor. Any unauthorized assignment or sub -license shall be void and shall immediately terminate this Agreement. 15. PARTIES REPRESENTATIVES 15.1. Licensee shall designate in writing to Licensor a representative who shall be responsible for the day-to-day operation of Licensee's use of the Repeaters and who shall facilitate consolation pursuant to this Agreement at Licensor's request. 15.2. This Agreement will be administered by Licensor's Emergency Services Coordinator or designee thereof ("Project Administrator") who shall have the authority to act for Licensor under this Agreement and represent Licensor in all matters pertaining to the use of the Repeaters and consolation to be provided by Licensee pursuant to this Agreement. 16. NOTICES 16.1. All notices, demands, requests or approvals, including any change in mailing address, to be given under the terms of this Agreement shall be given in writing, and conclusively shall be deemed served when delivered personally, or on the third business day after the deposit thereof in the United States mail, postage prepaid, first-class mail, addressed as hereinafter provided. 16.2. All notices, demands, requests or approvals from Licensee to Licensor shall be addressed to Licensor at: Attn: Katie Eing, Emergency Services Coordinator NEWPORT BEACH POLICE DEPARTMENT 870 Santa Barbara Drive Newport Beach, CA 92660 16.3. All notices, demands, requests or approvals from Licensor to Licensee shall be addressed to Licensee at- Attn: Gary Standard NEWPORT BEACH REPEATER CLUB 260 Evening Canyon Road Corona Del Mar, CA 92625 Newport Beach Repeater Club Page 6 17. GENERAL PROVISIONS 17.1. Recitals. Licensor and Licensee acknowledge that the above Recitals are true and correct and are hereby incorporated by reference into this Agreement. 17.2. Compliance with all Laws. Licensee shall, at its own cost and expense, comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, all work prepared by Licensee shall conform to applicable City, county, state and federal laws, rules, regulations and permit requirements and be subject to approval of the Project Administrator and City. 17.3. Waiver. A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character. 17.4. Integrated Contract. This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. 17.5. Conflicts or Inconsistencies. In the event of any conflict between the terms of this Agreement and the terms of any other agreements between the Licensor and Licensee regarding the subject matter herein, the terms of this Agreement shall control. 17.6. Interpretation. The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of the Agreement or any other rule of construction which might otherwise apply. 17.7. Amendments. This Agreement may be modified or amended only by a written document executed by both Licensee and Licensor and approved as to form by the City Attorney. 17.8. Severability. If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 17.9. Controlling Law and Venue. The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange, State of California. Newport Beach Repeater Club Page 7 17.10. Equal Opportunity Employment. Licensee represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because race, religious creed, color, national origin, ancestry, physical handicap, medical condition, marital status, sex, sexual orientation, age or any other impermissible basis under law. 17.11. No Attorneys' Fees. In the event of any dispute or legal action arising under this Agreement, the prevailing party shall not be entitled to attorneys' fees. 17.12. Authority. Licensee, and the persons signing this Agreement on behalf of Licensee, each represent that the signatories hold the positions set forth below their signatures and that the signatories are authorized to execute this Agreement on behalf of Licensee and to bind Licensee hereto. 17.13. Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original and all of which together shall constitute one (1) and the same instrument. [SIGNATURES ON FOLLOWING PAGE] Newport Beach Repeater Club Page 8 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date:: y B Ar n C. Harp UM oLj%%I7t City Attorney ATTEST: Date.-- By: ate:By: < Leilani I. Brown City Clerk LICENSOR: CITY OF NEWPORT BEACH, a California municipal corporation Date: FEB 22022 By: Grac . Leung CitylOanager LICENSEE: NEWPORT BEACH REPEATER CLUB, an unincorporated association Date:a�2-- Signature: c� Print: S' 1)0iy'o Title: President and � l Signature: Print: 14�ffz---o Title: Secretary [END OF SIGNATURES] Attachments: Exhibit A — Description of Amateur Repeaters and Authorized Frequencies Newport Beach Repeater Club Page 9 EXHIBIT A DESCRIPTION OF AMATEUR REPEATERS AND AUTHORIZED FREQUENCIES One — ICOM Model IC-FR5000 VHF FM Repeater operating on frequencies 145.42 MHz. Transmit & 144.82 MHz. Receive, CTCSS tone 136.5 Hz. One — ICOM Model IC-FR6000 UHF FM Repeater operating on frequencies 445.22 MHz. Transmit & 440.22 MHz. Receive, CTCSS tone 79.7 Hz. Newport Beach Repeater Club Page A-1