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HomeMy WebLinkAbout03- License Agreement for the Use of City Property by WWC Holding Co., Inc. I LICENSE AGREEMENT FOR THE USE OF CITY PROPERTY BYWWC HOLDING CO., INC. THIS LICENSE AGREEMENT this ("Agreement") is an agreement between the City of Bozeman, (the "City") and WWC Holding Co., Inc., a Delaware Corporation ("WWC"). Whereas, the City is the owner of the water tank located on Kenyon Drive, in the City of Bozeman; and Whereas, WWC provides telecommunication services for the community of Bozeman; and Whereas, the City recognizes the benefits to the City and to the citizens of Bozcman of the services provided by WWC; "-. ... Now therefore, in consideration of WWC's promises herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the City hereby givers permission, revocable and terminable as hereinafter providcd, to WWC to use the water tank and appurtenant ground space, more particularly described in Exhibit A attached hereto (the "Site"), located on Kenyon Drive in the City of Bozeman, during the period commencing July 1, 2003 until July 1, 2008 on the terms and conditions as set forth below, which WWC promises to comply with and abide by. Such right shall include the right to use that portion of the water tank, generally depicted on construction drawings attached hereto as Exhibit B, for purposes involving, relating to or supporting telecommunications, including thc right to install, construct and maintain on the Site, communication facilities or other supplemental improvements relating to the permitted uses. 1. Rent. This license and permission is given to WWC [or an annual fee ("Rent") of Eighteen Thousand Dollars. Rent shall be payable on of before July 1 of each year during the term of this Agreement. Rent shall increase on an annual basis by four (4) percent. As additional consideration hereunder, WWC shall pay the City a signing fee of Twenty~Five Thousand Dollars ($25,000) upon execution full execution. This shall be a one-time fee and no further signing fee shall be due in the event WWC elects to renew this Agreement as provided herein. WWC 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 estate of any kind or extent whatsoever in the property or Site by virtue of this Agreement of WWC's occupancy or use hereunder. 2. Indemnity. WWC shall exercise its privilege at its own risk and agrees to indemnify, defend, and hold harmless the City [rom 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 anyway connected with the occupation or use of the property by WWC, or its members, employees, guests, or invitees, except to the extent that such Claims are due to the negligence or intentional acts of the City, its members, employees, guests or invitees. 3. Assignment. WWC 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, conditioned or delayed. Notwithstanding the foregoing, WWC 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, WWC, or any corporation or entity which results from a merger or consolidation with WWC or with any entity that controls WWC. 4. Insurance. WWC shall maintain, at its expense, commercial general liability insurance covering actions by WWC 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 propeny, 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 30 days prior written notice to the City and WWC. 5. Construction and Restrictions. The placement of all telecommunications facilities on the Site must comply with the following requirements and shall be in accordance with Exhibit "B" attached hereto: A. The telecommunications facilities will not adversely interfere with the purpose for which the property is intended; WWC'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. E. 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 by a professional design must be adhercd to. The location and placement of cables shall be dcsigned to reduce interference with future maintenance 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 failure, and shall not cause damage to the tank. D. In addition to all other requirements, WWC 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 mounted on the City's water tank, entry into the enclosed area surrounding the tank shall be restricted to City pcrsonnel or other individuals authorized by the City only. WWC may, at its own expense and subject to pre-approval by the City, construct a separate enclosure within the existing enclosed area with separate external access to facilitate a prefened locale for base station equipment, provided that the restricted access to the area surrounding the tower is not compromised. F. WWC 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 telm 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 all standard engmeenng requirements, m addition to all tenns of this Agreement. 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 WWC with reasonable access to the site at all reasonable times provided however, WWC will coordinate such access to the site with the City, and provided further that WWC shall reimburse the City for the City's extraordinary costs and expenses incurred by the provisions of such access. G. Maintenance of the water tank by the City of Bozeman will be coordinated with WWc. The City's needs and maintenance requirements will supercede all other considerations. In the event maintenance or other requirements involve removal or impact of WWC's antenna, WWC may affix such antenna to another pole on a temporary basis to avoid disruption of telecommunication service. The City will use its best effOlts to provide WWC with notice at least 48 hours in advance of any maintenance on or to the water tank that may affect or impact WWC. H. WWC will 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. WWC will cooperate to assist othcr licensees in resolving technical inteIference 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 tank if that licensee's use of the water tank creates an unreasonable interference with WWC'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 be resolved in favor of the City's uses. 6. Police Power. If WWC's communications facilities (a) create a definable lisk to the health, safety or welfare of the public; or (b) is declared by a court of competent jurisdiction to be in violation of any statutes or regulations of the Government, and WWC cannot minimize the risk in accordance with the Governments' recommendations or ensure that WWC'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 telminate the license granted by this agreement, at its discretion, at any time upon 180 days prior written notice to WWc. Upon revocation, the surrender or termination of the license hereby given, WWC shall, within a reasonable time, quietly and peacefully surrender the portion of the Site occupied by WWC in substantially the condition existing as of the commencement date of this agreement. 7. Termination. WWC may terminate this Agreement, at WWC's sole option, upon sixty (60) days prior written notice. Upon termination WWC shall remove its . equipment and improvements, and will restore the Site to substantially the condition existing as of the commencement date of this Agreement, normal wear and tear excepted. If this Agreement is not terminated on or before July 1, 2008, then subject to the terms of this Agreement, WWC shall have the right to renew the term of this Agreement for an --- additional term of five years (the "Renewal Tenn"). With respect to the Rencwal Term, WWC will automatically be dcemcd to have exercised its option for that Renewal Term, unless WWC notifies the City in writing on or before the expiration of the term or the Renewal Term, as the case may be, of WWC's intent not to renew the telm of this Agreement. Each Renewal Term will be on the same terms and conditions as set forth herein. 8. Due Diligence. WWC shall at all times exercise due diligence in the protection of the City's property at the Site against damages. 9. Amendment. This Agreement represents the entire understanding between the parties regarding the subject matter and superccdes any prior agreement, verbal or written. Any amendmcnt or modification of this Agreement or any provision herein shall he made in writing or executed in the same manner as the original document and 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 pmities agree to submit to non-binding mediation pursuant to the American Arbitration Association. This mediation shall be held in the county in which the Sitc is located and each party shall pay its own cost and expenses relating to the mediation. If either party is unsatisfied with the outcome of the non-binding mediation, then that party may pursue its remedies in any court having jurisdiction thereof. '-J !, In witness, whereof, I have hereunto set my hand this .:':) da y 0 r \j ut-<-~~l-:-' 2003. City of Bozeman By: \ - l~---- 7l*O\o~ Clark Johnson - City Manager ww?t~o., Inc. ~ . ~I&-- By:. - '. N /1. tif~....X:-, amc: (-:')<',-tc /. .1.:;:: I Title: '\ /) L? - !Jh''f>}I6~ (JlzT EXHIBIT A (Site Description) Thc subject property is in a portion of a 4.32 acre undcveloped ncighborhood park located within Grafs First Subdivision Second Filing, SE .'/4 Sec. 18, T2S-R6E, PMM more commonly known as 1630 Kenyon Drive, Bozeman, MT - -" .. - (PQ4~r.llV s'au~N\BJa uoqJnJ1SUO;)) 8 ll81HX3: