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HomeMy WebLinkAbout05- License Agreement for the Use of City Property By MTPCS LICENSE AGREEMENT FOR THE USE OF CITY PROPERTY BY MTPCS Inc. THIS LICENSE AGREEMENT (this "Agreement") is an agreement between the City of Bozeman, (the "City") and MTPCS, Inc., ("MTPCS"). Whereas, the City is the owner of the water tank located on Kenyon Drive, in the City of Bozeman; and Whereas, MTPCS provides telecommunication 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 MTPCS; Now therefore, in consideration ofMTPCS'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 MTPCS 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 August 1. 2005 until December 31. 2011 on the terms and conditions as set forth below, which MTPCS 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, 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. 1. Rent. This license and permission is given to MTPCS for an annual fee ("Rent") of Twenty One Thousand Dollars for the first year, and Twenty One Thousand Eight Hundred Forty Dollars beginning the second year. Rent shall be payable on or before January 1 st of each year during the term of this Agreement. Rent shall increase on an annual basis by four percent (4%). In consideration of the amount paid toward rent, MTPCS will provide to the City of Bozeman thirty (30) cellular phones and a total of 300 minutes of no cost air time each month which will be grouped among all thirty phones. The value of the phones and minutes, $10,800.00, (ten thousand eight hundred dollars), will be applied toward the annual rent amount. MTPCS hereby acknowledges the title of the City to the above described property and agrees never 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 or MTPCS's occupancy or use hereunder. 2. Indemnity. MTPCS 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 (collectively "Claims") against it, arising out of or in anyway connected with the occupation or use of the property by MTPCS, 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. MTPCS 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, MTPCS 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, MTPCS, or any corporation or entity which results from a merger or consolidation with MTPCS or with any entity that controls MTPCS. 4. Insurance. MTPCS shall maintain, at its expense, commercial general liability insurance covering actions by MTPCS 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 ofthe 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 MTPCS. 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; MTPCS' 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. B. 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 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 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, MTPCS 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 personnel or other individuals authorized by the City only. MTPCS may, at its own expense and subject to pre- approval by the City, construct a separate enclosure within the existing enclosed area with a separate external 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. MTPCS 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 all standard engineering requirements, in addition to all terms 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 MTPCS with reasonable access to the site at all reasonable times; provided however, MTPCS will coordinate such access to the site with the City, and provided further, that MTPCS shall reimburse the City for the City's extraordinary costs and expenses incurred by the provision of such access. G. Maintenance of the water tank by the City of Bozeman will be coordinated with MTPCS. The City's needs and maintenance requirements will supercede all other considerations. In the event maintenance or other requirements involve removal or impact ofMTPCS' s antenna, MTPCS 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 MTPCS with notice at least 48 hours in advance of any maintenance on or to the water tank that may affect or impact MTPCS equipment. H. MTPCS 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 prior to the date of this Agreement. MTPCS 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 tank if that licensee's use of the water tank creates an unreasonable interference with MTPCS 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. IfMTPCS'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 jurisdiction to be in violation of any statutes or regulations of the Government, and MTPCS cannot minimize the risk in accordance with the Government's recommendations or ensure that MTPCS's communications facilities are in compliance with the statutes and regulations of the Government, all within a reasonable period oftime, then the City may terminate this Agreement without notice. The City reserves the right to revoke or terminate the license granted by this agreement, at its discretion, at any time upon 180 days prior written notice to MTPCS. Upon revocation, the surrender or termination ofthe license hereby given, MTPCS shall, within a reasonable time, quietly and peacefully surrender the portion of the Site occupied by MTPCS in substantially the condition existing as of the commencement date of this Agreement. 7. Termination. MTPCS may terminate this Agreement, at MTPCS' s sole option, upon sixty (60) days prior written notice. Upon termination MTPCS 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 December 31,2011, then subject to the terms of this Agreement, MTPCS shall have the right to renew the term of this Agreement for an additional term offive years (the "Renewal Term"). With respect to the Renewal Term, MTPCS will automatically be deemed to have exercised its option for that Renewal Term, unless MTPCS notifies the City in writing on or before the expiration of the term or the Renewal Term, as the case may be, ofMTPCS's intent not to renew the term ofthis Agreement. Each Renewal Term will be on the same terms and conditions as set forth herein. 8. Due Diligence. MTPCS 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 supercedes any prior agreement, verbal or written. 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 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 American 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 party is unsatisfied with the outcome ofthe 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 ,2005. City of Bozeman By: ~_~ Name: Chris Kukulski Title: City Manager Legal description of water tank site EXHIBIT A . , EXHIBIT B Description ofMTPcS Inc install (Was provided under initial License Agreement)