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HomeMy WebLinkAbout08- Alltel Communications License Agreement for the Use of City Property~ \~ f LICENSE AGREEMENT FOR THE USE OF CITY PROPERTY BY Alltel Communications, LLC THIS LICENSE AGREEMENT (this "Agreement") is an agreement between the City of Bozeman, (the "City") and Alltel Communications, LLC, a Delaware limited liability corporation. ("Licensee") Whereas, the City is the owner of the water tank located on 1630 Kenyon Drive, in the City of Bozeman; and Whereas, LICENSEE 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 LICENSEE; Now therefore, in consideration of LICENSEE's promises herein, and other good and valuable considerations, the receipt and sufficiency of which is hereby acknowledged, the City hereby gives permission, revocable and terminable as hereinafter provided, to LICENSEE use the water tank and appurtenant ground space, more particularly described in Exhibit A attached hereto (the "Site"),located on 1630 Kenyon Drive in the City of Bozeman, during the period commencing August 1, 2008 until July 31, 2013 on the terms and conditions as set forth below, which LICENSEE 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 LICENSEE for an annual fee ("Rent") of Twen Four Thousand Five Hundred Six Seven Dollars, ($24,567.00), for the first year, and Twenty Five Thousand Five Hundred Fifty Dollars,,~$25,550.00), beginning the second year. Rent shall be payable on or before August 1 st of each year during the term of this Agreement. Rent shall increase on an annual basis by four percent (4%) with first increase effective August 1, 2010. LICENSEE hereby acknowledges the title of the City to the above described property and agrees never to deny such title or claim, at anytime, or claim any interest or estate of any kind or extent whatsoever in the property or Site by virtue of this Agreement or LICENSEE'S occupancy or use hereunder. 2. Indemnity. LICENSEE 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 LICENSEE, 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. The City shall agrees to indemnify, defend, and hold harmless Licensee from any and all liability, loss, or damage except to the extent that such are due to the negligence or intentional acts of the Licensee, its members, employees, guests or invitees. 3. Assignment. LICENSEE 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. Notwithstandingthe foregoing, LICENSEE 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, LICENSEE, or any corporation or entity which results from a merger or consolidation with LICENSEE or with any entity that controls LICENSEE. 4. Insurance. LICENSEE shall maintain, at its expense, commercial general liability insurance covering actions by LICENSEE 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 notice to the City and LICENSEE. A current copy of the policeswill be sent to the Citesannually at the same time that the yearly rent is paid. 5. Construction and Restrictions. The placement of all telecommunications facilities on 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; LICENSEE'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. Any work on the tank is subject to review and approval y the City to make sure that no damage is done to the tank through drilling b~ oltin~ welding or other methods of attachment. Tank penetration and reinforcement requirements established by a professional design must be adhered to. No welding is allowed on the tank without the direct approval and supervision of the C~ 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. The shroud housing the equipment cables and wire shall be well maintained and promptly repaired in the event of wind or other damage identified upon inspection by LICENSEE or by notification by the Ci D. In addition to all other requirements, LICENSEE 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. AnY maintenance work on the tank or other equipment may not changte the appearance of the grounds, or tank, without prior approval of the City. 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. LICENSEE 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. LICENSEE 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 LICENSEE with reasonable access to the site at all reasonable times; provided however, LICENSEE will coordinate such access to the site with the City, and provided further, that LICENSEE 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 LICENSEE. The City's needs and maintenance requirements will supersede all other considerations. In the event maintenance or other requirements involve removal or impact of LICENSEE's antenna, LICENSEE 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 LICENSEE with notice at least 48 hours in advance of any maintenance on or to the water tank that may affect or impact LICENSEE's equipment. H. LICENSEE 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. LICENSEE 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 LICENSEE 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 LICENSEE'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 LICENSEE cannot minimize the risk in accordance with the Government's recommendations or ensure that LICENSEE'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 terminate the license granted by this agreement, at its discretion, at any time upon 180 days prior written notice to LICENSEE. Upon revocation, the surrender or termination of the license hereby given, LICENSEE shall, within a reasonable time, quietly and peacefully surrender the portion of the Site occupied by LICENSEE in substantially the condition existing as of the commencement date of this Agreement. 7. Termination. LICENSEE may terminate this Agreement, at LICENSEE'S sole option, upon sixty (60) days prior written notice. Upon termination LICENSEE 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 May 31, 2013, then subject to the terms of this Agreement, LICENSEE shall have the right to renew the term of this Agreement for an additional term of five years (the "Renewal Term"). The second five year term is subject to negotiation of price, and terms and conditions. With respect to the Renewal Term, LICENSEE will automatically be deemed to have exercised its option for that Renewal Term, unless LICENSEE notifies the City in writing 30 days prior to the expiration of the term or the Renewal Term, as the case maybe, of LICENSEE'S intent not to renew the term of this Agreement. The basic terms and conditions set forth in this agreement will be the starting_point for ne otiating the Renewal Term. 8. Due Diligence. LICENSEE 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 of the 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 ~ l~ day of ~ pvt~b¢P, 2008. City of Bozeman Alltel Com nications LL By: y: Name: Chris Kukulski Na James E. M onald Title• City Manager Ti e• V. Pres. - N twork Services EXHIBIT B See Attached ~ g 9s ~ -- ° ~~ I~ ~~ ~~ ~~ ~ 9 ~ p ~a ~ ~~ ~~ ~~~\ ~~~~ ~ /~,~ ~ II .I /~ ~ ~ II ~' i ,I ~ ~ ~ ~ i ~,_ i ~ ~ ~ ~ ~~\ 1 f .~ \~~ r ~ ~ ~\~ ~------------'------- r- \a\ ---- ~ ,~ \~~ ` ~ ~~r ~ J i'~ ~~, ~~ ~~ ~ ~~~~ ~~ i' ~~\ „ ~~ v ~ ~, i i i i i i i i I 1 1 I ~iya~~~~ ~§ ~~ ~ ~E~ ~ ~~~ ~e ~ ~ ~~ ~ ~; ~~ F ~ ~ 0 ~ 8 ~ ~~ ~~§~ ~ S S f~~~ 2LG ~ ~~ '~ ~~ ~ ~ W ~-~ ~ m ~ ~ ~ ~ z~ ~~ ' ' ~~~1~~ ~ D ~ ~ ~ ~ CD ~ - ~ ~D C/~ -z ~~~~ ~ C/1 ~ ~~~ ~y~ oo~r~~N ~ ~~ ~~'~ ~+ ;N 'z ~ hi es k `~' A g i a ~~~~ ~~ a ~~~~ ~~ ~"p!~„ ~a" n ~ rs %~"~ ip~ ~~ 88~~ 3 R i~~Y ~ 8 D `J ~ ~ ~~ ~ ~ g ~ ~ o " °~ ~ C P ¢ P ~a p € Is ~~ ®~ ~~__ _ _1_~,\ ~ -~` ~~ ~' ~~ '~~, ~~~, I--- -- ------- ' --'_~- ~ -- '~- ~>~ ~ I i''~ ~ I ~' ,~ .I ~/ '' ~ ~ ~ •, ~/ ~ _~ ,t _ _ , ~C ; ° I ~~ \ +~ ~ I UUUUU I ) ~\~ ~------------------- r- ~,{~ I I ~,~ ~~~ J ~ ~\` ~~~ i ~ \\ x~ ~~ v ~ ~~ p~~~ ~ ~~~ ~ ~~~ ~~ ~~ ~ gip ~~ ~ ~ g; ~ jj !F~ 9R 4 ~ g 3a9~ ~ y B ~~ 9 5sa ~~~; lF9q ~ f ' ~~~~ ~ ~~ 0 ~„~ 3 ~ m ~ -~~ ~ ~ o ; n ~~ _ ~ ~'~' ~ ~ Oo Zm . ~ ~ ~ ~~ ~ -.--~- ~~ ~~ ~~ ~~~ ~~ NN ~ • d ~ ~ N F Ii ~ 8 6 ~ ~ ~~j~p~p~+ ~ 1~~E~ ~~ 4 ~p ii~ ~ ~~~~~ ~~i~ y ~ ? x ~ ~ ~' Peya L ~ ~'~ 9 € mo Q~ Z ~ y~~4aP~ }~ ~~ SSYi ~ °Z 4a ~j A Ma~ptc ~Yi_ ~p ~~~ ~ ~~~~p~ ~@~ Commission Memorandum REPORT TO: Honorable Mayor and City Commission FROM: James Goehrung, Director of Facility Services Chris Kukulski, City Manager SUBJECT: License Agreement with Alltel Communication for a Cellular Phone Antenna on the Kenyon Drive Water Tank MEETING DATE: November 3, 2008 RECOMMENDATION: Authorize the City Manager to sign a five year License Agreement with Alltel for a cellular antenna on the Kenyon Drive Water tank. BACKGROUND: The City of Bozeman is leasing space on the Kenyon Drive water tank for cellular phone antennas. The cellular market has been very volatile in the last couple of years, with the agreements changing hands a number of times as companies have been bought out, or as companies have merged. We now have two antenna agreements in place with two separate companies. Each time the licenses have expired, staff has entered into negotiations on the fees we will charge the companies for the use of our property. My understanding is that this particular location provides a wide area of coverage to a fairly large population, which makes it a valuable site. The original license was negotiated by former City Manager Clark Johnson. The two licenses we currently have on the tank expire at different times. The dollar amount in this agreement will bring it up to par with the second lease we have on the tank. FISCAL EFFECTS: The license fee for the first year is $24,567.00 and $25,550.00 the second year. The fee will increase each year by an inflation factor of 4% for the balance of the license agreement. ALTERNATIVES: Respectfully submitted, As suggested by the City Commission. Ja es Goehrung Director of Facility Services Chris A. Kukulski, City Manager Attachments: License Agreement Report compiled on October 29, 2008 ALLTEL Communications, Inc. Property Management Department One Allied Drive Mailstop: 1269-B2F02A Little Rock, AR 72202 Angela Arrowood, Coordinator (501) 905-7611 office (501) 905-6944 fax Angela.Arrowood(~alltel.com October 28, 2008 Mr. James Goehrung Director of Facility Services City of Bozeman P. O. Box 1230 Bozeman, MT 59771 Elltet Gianna Gregory-Lloyd, Sr. Contract Specialist (501) 905-0542 office (501) 905-6944 fax Gianna.GregorV-Lloy~u alltel.com RE: License Agreement for the Use of City Property MT08 Bozeman WT Dear Mr. Goehrung: Enclosed are two (2) original License Agreements on the above referenced Site. Alltel has partially executed these documents. Once the appropriate person has signed off, please return one original to Alltel at the address above. Should you have any questions, please do not hesitate to contact me. Sincerely, '~~na ~ ~ ~~ Gianna Gregory-Lloyd Sr. Contract Specialist enclosures cc: file