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Home My WebLink About11-07-16 CC Mtg - C10. Addendum 1 to Bozeman Fiber License Agreement for Conduit Commission Memorandum REPORT TO: Honorable Mayor and City Commission FROM: David Fine, Economic Development Specialist SUBJECT: Authorize the City Manager to sign First Addendum to the License Agreement for the Use of City Conduit between the City of Bozeman and Bozeman Fiber MEETING DATE: November 7, 2016 AGENDA ITEM TYPE: Consent RECOMMENDATION: Authorize the City Manager to sign First Addendum to the License Agreement for the Use of City Conduit between the City of Bozeman and Bozeman Fiber BACKGROUND: On January 11, 2016, the City Commission adopted Resolution 4658 establishing policies for the licensing of City-owned broadband infrastructure. The City issued and advertised a competitive request for proposals to use excess City-owned conduit for installing fiber optic cable. One firm, Bozeman Fiber, responded to that request for proposals. Based on that response, City staff negotiated a license agreement that was approved by the City Commission in June. This Addendum increases the amount of conduit being licensed by Bozeman Fiber. Bozeman Fiber is licensing conduit throughout its requested linear footage, leaving five or six, respectively, remaining conduits for use by the City or the private sector where 7-way duct is deployed and a single 1.25” conduit unoccupied along Montana Ave. FISCAL EFFECTS: Upon the execution of this Agreement, Licensee shall pay to the City a payment equal to $0.75 per linear foot of licensed conduit, which for the use of the Licensed Conduit equals $12,168, paid annually in advance. The initial License Fee rate shall be effective for the first year of the term. After the first anniversary of the Effective Date, the City may increase the License Fee rate based on an analysis of costs of 107 construction, maintenance, and operation of the City Duct System as well as then-current market rates for conduit leases or licenses, provided that after the first year of the term, the increase shall occur no more frequently than once every two years. Licensee may terminate this Agreement if such a License Fee adjustment results in a License Fee rate increase of more than 25%. ATTACHMENT: Addendum to the License Agreement for the Use of City Conduit between the City of Bozeman and Bozeman Fiber 108 Page 1 FIRST ADDENDUM TO LICENSE AGREEMENT FOR THE USE OF CITY CONDUIT between THE CITY OF BOZEMAN AND BOZEMAN FIBER This FIRST ADDENDUM to the LICENSE AGREEMENT FOR THE USE OF CITY CONDUIT dated June 20, 2016 (“Agreement”) is made and entered into by and between the City of Bozeman, a self governing municipal corporation organized and existing under its Charter and laws of the State of Montana with its principal offices located at 121 North Rouse, Bozeman MT 59771 (the “City”) and Bozeman Fiber, a nonprofit public benefit corporation, with its principal offices located at 2000 Commerce Way, Bozeman, Montana (“Licensee”). The City and Licensee may hereinafter be referred to individually as a “Party” or collectively as the “Parties.” In consideration of the mutual covenants and agreements herein contained, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows: 1. Initial License Fee; Fee Adjustment. Section 5 of the Agreement is replaced its entirety with: Upon the execution of this Agreement, Licensee shall pay to the City a payment equal to $0.75 per linear foot of Licensed Conduit, which for the use of the Licensed Conduit equals twelve thousand one hundred and sixty eight dollars ($12,168.00), paid annually in advance. The initial License Fee rate shall be effective for the first year of the term. After the first anniversary of the Effective Date, the City may increase the License Fee rate based on an analysis of the costs of construction, maintenance, and operation of the City Duct System as well as then-current market rates for conduit leases or licenses, provided that after the first year of the term, the increase shall occur no more frequently than once every two years. Licensee may terminate this Agreement if such a License Fee adjustment results in a License Fee rate increase of more than 25%. 2. Replacement of Exhibit B. Exhibit B to the Agreement is replaced with the Exhibit B attached to this First Addendum. 3. Utility Notification Center and Line Location. Section 9 of the Agreement is replaced in its entirety with: Licensee shall register with, and coordinate its activities with, the Montana Utility Notification Center and any successor organization coordinating location of utility lines. Lessee will be responsible for all locates of the City Conduit System occupied by Lessee. Lessee agrees to respond promptly and appropriately to all line location requests from the public or from other utilities, whether or not such requests are made through the Utility Notification Center. In any event, the City is not responsible for any damage to fiber assets in Licensed Conduit resulting from a failure by the Lessee to accurately locate its fiber assets in the City Conduit. 4. Agreement still valid. All remaining terms and provisions of the Agreement remain valid. 109 Page 2 IN WITNESS WHEREOF, the duly authorized representatives of the Parties have executed this Agreement as of the Effective Date of the Agreement. BOZEMAN FIBER By: Title: STATE OF MONTANA ) ) ss. COUNTY OF GALLATIN ) The foregoing instrument was acknowledged before me, a notary public, this ___ day of ________________, 2016, by _________________________ as ___________________ of Bozeman Fiber. Witness my hand and official seal. My commission expires: (SEAL) Notary Public CITY OF BOZEMAN By: City Manager ATTEST: City Clerk APPROVED AS TO FORM: City Attorney 110 Exhibit B Page 1 EXHIBIT B Licensed Segments of City Conduit System North 7th TIF (Blue Tube) The North 7th TIF Conduit initiates at the NE corner of N 5th Avenue and the Alley between Main and W Mendenhall Street 1. North 193’ to the NE corner of N 5th Avenue and W Mendenhall 2. West 39’ to the west side of N 5th Avenue 3. North 936’ to the SW corner of N 5th Avenue and W Villard Street 4. West 422’ on the south side of W Villard Street 5. North 546’ on the wast side of the Alley to W Short Street 6. East 166’ to the east side of N 6th Avenue 7. North 355’ to the SE corner of N 6th Avenue and W Peach Street 8. East 237’ tot he SW corner of N 5th Avenue and W Peach Street 9. South 271’ on the west side of N 5th Avenue 10. 432’ west from the SE corner of N 6th Avenue and W Peach Street to the NW corner of N 7th Avenue and Durston Total Distance in the North 7th TIF Conduit = 3597’ Downtown TIF (Blue Tube) The Downtown TIF Conduit initiates at the NE corner of N 5th Avenue and the Alley between Main and W Mendenhall Street 1. East 100’ on the north side of the alley 2. From the initiation 589’ south on the east side of N 5th Avenue to the south side of W Babcock Street 3. East 1342’ to the SE corner of S Wilson Avenue and W Babcock Street 4. North 195’ on the east side of S Wilson Avenue 5. From maintenance hole behind City Hall (SW corner of N Montana Avenue and E Lamme Street) east 752’ to the SE corner of N Church Avenue and E Lamme Street 6. South 1855’to the SE corner of S Church Avenue and E Curtiss Street 7. East 213’ to the SW corner of E Curtiss Street and the Alley between S Church Avenue and S Wallace Avenue 8. From the SE corner of N Rouse Avenue and E Mendenhall Street east 1532’ tot he SW corner of N Broadway Avenue and E Mendenhall Street 9. From the Alley between E Mendenhall Street and E Main Street east of N Wallace Avenue south 296’ to the south side of Main Street 10. East 165’ to the property boundry 11. South 476’ to the library 12. From MHD103+88 on the SE corner of N Tracy Avenue and the Alley between E Lamme Street and E Mendenhall Street 177’ to the SE corner corner of N Tracy and E Lamme Street 13. East 1010’ to MHD115+75 (at City Hall). 111 Exhibit B Page 2 Downtown TIF (Orange Tube) The Downtown TIF Conduit initiates at the NE corner of N 5th Avenue and the Alley between Main and W Mendenhall Street 1. East 100’ on the north side of the alley 2. From the initiation 589’ south on the east side of N 5th Avenue to the south side of W Babcock Street 3. East 203’ along W Babcock Street 4. From MHD103+88 on the SE corner of N Tracy Avenue and the Alley between E Lamme Street and E Mendenhall Street 177’ to the SE corner corner of N Tracy and E Lamme Street 5. East 1010’ to MHD115+75 (at City Hall). Total Distance in the Downtown TIF Conduit = 9973’ 2654’ of conventional conduit on North Montana Avenue from City Hall north to the EOC 112