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HomeMy WebLinkAbout01- City Property by TW Wireless I . LICENSE AGREEMENT FOR THE USE OF CITY PROPERTY BY TW WIRELESS THIS I JCRNSE AGREEMENT (this "Agreement") is an agreement betwccn the City of Bozeman, (the "City") and TW Wireless, L.L.C., a Delaware limited liability Company ("TW "). Whereas, the City is the owner of the water tank located on Kenyon Drive, in the City of Bozeman; and Whereas, TW provides telecommunication services for the community of Bozcman; and Whereas, the City recognizes the benefits to the City and to the citizens of Bozcman of the scrvices provided by TW; Now therefore, in consideration of TW's promiscs hcrcin, thc City hereby gIves permission, revocable and terminable as hereinafter provided, to TW to use the water tank located on Kcnyon Drive in the City of Bozeman, during the period commencing lkcember 3(7, 200 I until Dccember 27, 2006 on the terms and conditions as set forth below, which TW promises to comply with and abidc by. Such right shall include the right to use that portion of the water tank, generally depicted on construction drawings, for purposes involving, relating to or supporting telecommunications, including the right to install, construct, reconstruct and maintain on the Site communication facilities or other supplemental improvcments relating to the pem1itted uses. 1. This permission is given to TWas an accommodation to TW, and for an initial annual fee of Eighteen Thousand dollars ($18,000.00). The annual fee shall be payable on or betixe Dccember 30th of each year during the term of this agreement. The annual fee shall increase on an annual basis by four percent (4'];,). TW acknowledges the title of the City to the above describcd property and agrecs never to deny such title or elaim, at any time, any interest or estate of any kind or exlcnt whatsoever in the property by virtue of this agreement or its occupancy or use hereunder. 2. TW shall exercise its privilege at its own risk and agrees to indemnify, defend, and hold harmless the City from any and all liability, loss, or damage the City may suffer as a result of claims, demands, cost or judgment against it, arising out of or in anyway connected with the occupation or use of the property by TW, or its members, employees, gucsts, or invitees. 3. TW will not assign or transfer this agreement or sublet all or any portion of the site without the prior written consent of the City, which consent will not be unreasonably withheld. Not withstanding the foregoing, TW may assign this Agreement to any corporation or entity which controls, is controllcd by, or is under common control with, TW, or any corporation or entity which results from a merger or consolidation with TW or with any entity that controls TW. No transfer or assignment of the stock of TW, or any controlling interest in TW, whether by sale, merger, exchange or other means, shall constitute an assignment of this Agreement. 4. TW shall maintain at its expense commercial general liability insurance covering actions by TW providing for a limit of not less than $1,500,000.00 single limits, bodily injury and/or property damage combined, for damages arising out of bodily injuries to or death of all persons and for damages to or destruction of property, including the loss of use of the Site. Such policy shall name the City as an additional insured and shall contain a provision that no cancellation thereof shall be effective by the insurer without 45 days prior written noticc to the City and TW. 1 5. The placement of all telecommunications j~lci1itics on City-owncd property must comply with the following requirements: A. The telecommunications facilities will not adversely interfere with the purposc for which the property is intended: TW's access to the facilities will not increase the risks of contamination to the City's watcr supply; the presence of the t~lcilities will not increase the water tank maintenance cost to the City; and the presence of the facilities will not harm the health of workers maintaining the water tank. I3. The right to this license granted by this Agreement shall be contingent upon the fulfillment of all general and spceial conditions imposed by the conditional use procedure of Bozeman Municipal Code, Title 18. C. All work at the site must be properly scheduled with the C:ity. Tank penetration and reinforcement requirements established by a professional design must be adhered to. The location and placement of cables shall be designed to reduce interference with future maintenance and painting requirements, and verified to prevent sanitary, safety, or personnel hazards. Brackets, if any, shall he mounted in such a manner so as to prevent failure, and shall not cause damage to the tank. TW shall construct a shield or shroud, similar to the one currently in place, ailing the tllp of the water tank, capablc of housing up to five carriers. Such improvemcnts shall bccomc thc propcrty of the City of Bozeman. D. In addition to all other requirements, TW shall ensure that any antenna affixed to the water tank shall be color matched with the tank, and shall be profiled at or below the top ofthe tank. E. Following installation of the monopole tower and/or antennas to be mounted on the City's water tank, entry into the enclosed area surrounding the tank shall be restricted to City personnel only. TW may, at its own expense and subject to preapproval by the City, construct a separate enclosure within the existing enclosed area with a separate extcmal access to facilitate a preferred locale for base station equipment, provided that the restricted access to the area surrounding the tower is not compromised. F. TW may, at its own expense and subject to necessary approvals, modify, supplement, replace, and upgrade the telecommunications t~lcility on the site at reasonable times during the term of this agreement, so long as such activity is consistcnt with the pcnnitted uses. Acccss to the water tank must be coordinated with the City of Bozeman. ^ny improvements or modifications required for installation or operation of equipment, as well as utility provisions and service, must confom1 to applicable specifications, codes and all standard engineering requircmcnts, in addition to all terms of this license. Proposed modification or intensification of the permitted uses shall also be subject to the conditional use procedure of Bozeman Municipal Code, Title 18, as applicable. The City shall provide TW with reasonable access to the site at al1 reasonable times; provided however, TW will coordinate such access to the site with the City, and provided further, that TW shall reimburse the City fIx the City's extraordinary costs and expenses incurred by the provision of such access. G. Maintenance of the water tank by the C'ity of Bozeman will be coordinated with 'rw. The City's needs and maintenance requirements will supercede all other considerations. In the event maintenance or other requirements involve removal or impact of TW's 2 . . ~ antenna, TW may affix such antenna to another pole on a temporary basIs to avoid disruption of telecommunication service. The City will use its hest efforts to provide TW with notice at least 48 hours in advance of any maintenance on or to the water tank that may affect or impact TW equipment. H. TW will not use the site in any way that interferes with the existing use of the site hy the City or other licensees holding rights to the site prior to the date of this Agreement. TW will cooperate to assist other licensees in resolving technical interference problems created by the installation of additional equipment on the site. Afler the date of this Agreement, the City agrees not to allow any other licensee to use the water tank if that licensee's use of the water tank creates an unreasonable interference with TW's communications facilities or any other existing licensees facility. Notwithstanding the foregoing, if the City initiates use of the water tank for telemetry or other purposes, that use will have precedence over all other telecommunication uses, and any interference problems will he resolved in favor of the City's uses. 6. If TW's communications facilities (a) create a definable risk to the health, safety or welfare ofthe puhlie or (b) is declared hy a court of competent jurisdiction to he in violation of any statues or regulations of the Government, and TW cannot minimize the risk in accordance with the Government's recommendations or ensure that TW's communications facilities are in compliance with the statutes and regulations of the Government, all within a reasonable period of time, then the City may terminate this Agreement without notice. The City reserves the right to revoke or tenninate the license granted by this agreement, at Its discretion. at any time upon 180 days prior written notice to TW. Upon revocation, the sUHender or termination of the license hereby given, TW shall, within a reasonahle time, quietly and peacefully surrender the portion of premises occupied by TW in substantially the condition existing as of the commencement date of this agreement. 7. TW may tenninate this agreement upon sixty (60) days prior written notice. Upon temlination, TW shall remove its equipment and improvements, and will restore the si te to substantially the condition existing as of the commenccmcnt date ofthis agreement. If this Agrccmcnt is not terminatcd on or hefore December~, 2006, then subject to Section 6 above, TW shall have the right to renew the term of this Agreement for an additional tenn. With respect to each Rcnewal Te1111, TW will automatically be deemed to have exercised its option for that Renewal Term, unless TW noti fles the City in writing on or before the expiration of the tenn or the Renewal Term, as the case may be, of TW's intent not to renew the ten11 of this Agreement. Each Renewal Term will be on the same ten11S and conditions as set forth herein, unless a dilTerent lee or other consideration is negotiated. 8. TW shall at all times exercise due diligence in the protection of thc City of Bozeman's property against damages. 9. Any amendment or modification of this agreement or any provision herein shall be made in writing or executed in the same manner as the original document and shall aner execution become part of this agreement. 10. Any claim, controversy or dispute (collectively, "Claim") arising out of this Agreement shall be settled by the legal remedies available in any court having jurisdiction thereof; , .' . . . provided, however, prior to pursuing any Claim in court, the parties agree to submit to non-binding mediation pursuant to the American Arbitration Association. This lllcdiation shall he held in the county in which the site is located and each party shall pay its own cost and expense relating to the mediation. If either party is unsatisfied with the outcome orthe non-binding mediation, then that party may pursue its remedies in any court having jurisdiction thereof In witness, whereof, I have hereunto set my hand this ~7th day of December ,2001. .U_"'\ --..-.--.- City of Bozeman Clark Johnson, City Manager ( 'fW ess, L.L.c., a Delaware limited 'a Jility company Stephen Walters Title: President - TW Wireless 4