HomeMy WebLinkAbout01- City Property by VoiceStream Wireless
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LICENSE AGREEMENT FOR 'fllE USE OF CITY PROPERTY
BY VOICESTREAM WIRELESS
THIS LICENSE AGREEMENT (this "Agreement") is an agreement between the City of
Bozeman, (the "City") and VoiceStream PCS BT A I Corporation, a Delaware corporation
("VOICESTREAM").
Whereas, the City is the owner of the water tank located on Kenyon Drive, in the City of
Bozeman; and
Whereas, VOICESTREAM provides telccornmunication services for the community of
Bozeman; and
Whereas, the City recognizes the benefits to the City and to the citizens of Bozeman of the
services provided by VOICESTREAM;
Now therefore, in consideration of VOICESTREAM's promises herein, and other good and
valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the City hereby
gives permission, revocable and terminable as hereinafter provided, to VOICESTREAM to use the
water tank and appurtenant ground space, marc particularly described in Exhibit A attached hereto (the
"Site"), located on Kenyon Drive in the City of Bozeman, during the period commencing December _,
2001 until December _,2006 on the terms and conditions as set forth below, which VOICESTREAM
promises to comply with and abide by. Such right shall include the right to use that pOliion 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 improvements relating to the permitted uses.
L Rent. This license and permission is given to VOICESTREAM for an annual fee ("Rent") of
Nine 'Ihousand Dollars for the first year, and Eighteen Thousand Dollars beginning the second
year. Rent shall be payable on or before December 30th of each year outing thc term of this
Agreement. Rent shall increase on an annual basis by fOLlr percent (4%).
VOICESTREAM hereby acknowledges the title of the City to the above described property and
agrees ncver to deny such title or claim, at any time, or claim any interest or estatc of any kind or
extent whatsoever in thc property or Site by virtue of this Agreemcnt or VOICESTREAM's
occupancy or use hercunder.
2. Indemnity. VOICESTREAM shaLl exercise its pri vilcge at its own lisk 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 (collectively "Claims") against it, arising out of or in
anyw~IY connected with the occupation or use of the property by VOICESTREAM, or its members,
employees, guests, or invitecs, except to the extent that such Claims are due to the negligence or
Site Name: Bozeman Water Tank I
Site N IImher: MT1080A
IVlarkct: Montana
intentional acts of the City, its members, employees, guests or invitees.
3. Assignment. YOICESTREAM will not assign or tnmsfer this Agreement or sublet all or any
portion of the si te without the prior written consent of the City, which consent will not be unreasonably
withheld, conditioned or delayed. Notwithstanding the foregoing, YOICESTREAM may, upon written
notice to the City, assign this Agreement to any corporation or entity which controls, is controlled by, or
is under common control with, VOICESTREAM, or any corporation or entity which results from a
merger or consolidation with VOICESTREAM or with any entity that controls YOICESTREAM.
4. Insurance. YOICESTREAM shall maintain, at its expense, commercial general liability
insurance covering actions by VOICESTREAM providing for a limit of not less than $ I ,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 notice to the City and
YOICESTREAM.
5. Const.-uction and Restrictions. The placement of all telecommunications facilities on the Site
must comply with the followmg requirements and shall be in accordance with Exhibit B attached hereto:
A. The telecommunications facilities will not adversely intertere with the purpose for which
the property is intended; YOICESTREAM's access to the facilities will not increase the risks of
contamination to the City's water supply; the presence of the facilities 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. .
n. The right to the license granted by this Agreement shall be contingent upon the
fulfillment of all general and special 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 City. Tank penetration and
reinforcement requirements established hy a professional design must he adhered to. The location and
placement of cables shall be designed to reduce interference with future maintcnance and painting
requirements, and verified to prevent sanitary, safety, or personnel hazards. Brackets, if any, shall be
mounted in such a manner so as to prevent fai lure, and shall not cause damage to the tank.
D. In addition to all other requirements, VOICESTREAM 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
of the tank.
E. Following installation of the monopole tower and/or antennas to be mouTlted on the
City's water tank, entry into the enclosed area sUTTounding the tank shall be restricted to City personnel
or other individuals authori:;:cd by the City only. VOICESTREAM may, at its own expense and subject
Sitc Namc: Bozeman Water Tank 2
Sire Numher: MT1080A
Nlarket: Montana
to pre-approval by the City, construct a separate enclosure within the existing enclosed area with a
separate external access to facilitatc a prcfened locale for base station equipment, provided that the
restricted access to the area sunounding the tower is not compromised.
F. YOICESTREAM may, at its own expense and subject to necessary approvals, modify,
supplement, replace, and upgrade the telecommunications facility on the site at reasonable times during
the term of this Agreement, so long as such activity is consistent with the permitted uses. Access to the
water tank must be coordinated with the City of Bozeman. Any improvements or modifications
required for installation or operation of equipment, as well as utility provisions and service, must
conform to applicable specifications, codes and a]] standard engineering requirements, in addition to all
terms of this ^greement. Proposed modification or intensification of the pemlitled uses shall also be
subject to the conditional use procedure ofBozenwn Municipal Code, Title 18, as applicable. The City
shall provide YOICESTREAM with reasonable access to the site at all reasonable times; provided
however, VOICESTRl~AM will coordinate such access to the site with the City, and provided further,
that VOICESTREAM shall reimburse the City for the City's extraordinary costs and expenses inclined
by the provision of such access.
(' Maintenance of the water tank by the City of Bozeman will be coordinated with
~. YOICESTREAM. The City's needs and maintenance requirements will supercede all other
considerations. In the event maintenance or other requirements involve removal or impact of
YOICESTREAM's antenna, YOICESTREAM may affix such antenna to another pole on a temporary
basis to avoid disruption of telecommunication service. The City will use its best efforts to provide
VOICESTREAM with notice at least 48 hours in advance of any maintenance on or to the water tank
that may affect or impact VOICESTREAM equipment.
H. YOICESTREAM wi]] not use the site in any way that interferes with the existing use of
the site by the City or other licensees holding rights to the site plior to the date of this Agreement.
YOICESTREAM will cooperate to assist other licensees in resolving technical interference problems
created by the installation of additional equipment on the site. After the date of this Agreement, the City
agrees not to allow any other licensee to use the water tanki f that licensee's use of the water tank creates
an unreasonable interference with VOTCESTREAM's communications facilities or any other existing
licensees faci lity. Not wi thstanding the forcgoing, if the City initiates LIse of the water tank fortelemetry
or other purposes, that use will have precedence over all other telecommunication uses, and any
interference problems will be resolved in favor of the City's uses.
6. Police Power. If YOICESTREAM's communications facilities: (a) create a definable risk to
the health, safety or welfare of the public; or (b), is declared by a court of competent jlllisdiction to be in
violation of any statutes or regulations of the Government,ancl YOICESTREAM cannot minimize the
risk in accordance with the Government's recommendations or ensure that YOICESTREAM'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 wlitten notice to YOICESTREAM. Upon revocation, the surrender or
SHe Name: Bozeman Water TAnk -'
Site Numlwr: MT 1 080 A
Market: Montana
.
tennination of the license hereby given, VOICESTREAM shall, within a reasonable time, quietly and
peacefully surrender the portion of the Site occupied by VOICESTREAM in substantially the condition
existing as of the commencement date of this Agreement.
7. Termination. VOICESTREAM may terminate this Agreement, at VOICESTREAM's sole
option, upon sixty (60) days prior written notice. Upon termination VOICESTREAM shall remove its
equipment and improvements, and will restore the site to substantially the condition existing as of the
commencement date of this Agreement, nonTIal wear and tear excepted. If this Agreement is not
tenninated on or before December .__, 2006, then subject to the tenTIS of this Agreement,
VOICESTREAM shall have the tight to renew the term of this Agreement for an additionalte1ll1 of five
years (the "Renewal Term"). With respect to the Renewal Term, VOICESTREAM will automatically
be deemed to have exercised its option for that Renewal Tenn, unless VOICESTREAM notifies the City
in writing on or before the expiration of the term or the Renewal Tenn, as the case may be, of
VOICESTREAM's intent not to renew the term of this Agreement. Each Renewal Term will be on the
same terms and conditions as set forth herein.
x. Due Diligence. VOICESTREAM shall at all times exercise clue diligence in the protection of
the City's propeTty at the Site against damages.
9. Amendment. This Agreement represents the entire understanding between the parties
regarding the subject matter and supercedes any prior agreement, verbal or written. Any amendment or
modification of this Agreement or any provision herei n shall be made in wliting or executed in the same
manner as the original document ancl shall after execution become part of this Agreement.
10. Dispute Resolution. 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 AmeTican Arbitration Association. This mediation shall be 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 patty is unsatisfied with the outcome of the non-binding mediation, then that patty may pursue
its remedies in any comt having jurisdiction thercof.
In witness, whereof, I have hercunto set my hand this 10th day of __D.e.cember , 200 I.
City of Bozeman
R '7--,.-.... ~.J .. .. ..""." '.'."_._."~-~..........._,.~~~.
y: ..----, --- ".'~V~'~
Name: Clark Johnson
Title: City Manager
P.o. Box 640
Bozeman, Montana 59771-0640
VOICESTREAM pes HTA I Corporation,
A Delaware corporation
Silt' Name; .!3oz'~m;".;rl Watt-I' 'J'ilnk 4
Site Number; Mtu"p\a. ^,-(I(;B{)A
MaI"kd; r\Ot-frArJA
---.----
r
VOJCESTREAM PCS BTA 1 CORPORATION
By: \ (as C
Its. v;ce . esident, Development & (~perations" WesteD1J;tgg.l()Jl
Notice: 12920 SE 38lh Street
BeHevue, W A 98006
Site Narne. Bozeman Water Tank
Site No. MTO I080A
Market: Montana
.
EXHIBIT B
Description of V oiceStream installation
(may be substituted at later date, at VoiceStream sole option,
with Landlord approved construction drawings.)
Tenant's equipment to include E-911 location based equipment per
local/statelfederal regulation.
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11.'(\7- SG,\L.E: 1.~40' "~o.
Site Name: Bozeman Wa ter Tank 7
Site N umher:MT 1 080 A
Market: Montana