HomeMy WebLinkAbout03- WWC Holding Co., Inc.; Kenyon Drive Water Tank
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LICENSE AGREEMENT FOR THE USE OF CITY PROPERTY
BY WWC 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 isthe 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
Bozeman of the services provided byWWC;
_.. ,
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 provided, 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 the right to install, construct and maintain on
the Site, communication facilities or other supplemental improvements relating to the
pennitted uses.
1. Rent. This license and permission is given to WWC for 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 eventWWC elects to renew
this Agreement as provided herein.
WWC 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 cIaimany 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 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
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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 orinvitees.
3. Assignment.WWCwill 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, assignthis 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 withWWC 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 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 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 liB" attached hereto:
A. The telecommunications facilities will not adversely intertere 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.
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 Title18.
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 interterence with future maintenance and painting
requirements, and verified to prevent sanitary, safety, or personnel
hazards. Brackets,jf 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 personnel 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 preferred 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 term of this Agreement, so long
as such activity is consistent with the permitted uses. Access to the water
tank mustbe 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 WWC with reasonable access to the site at all
reasonable times provided however, WWC will coordinatesuchaccess 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 efforts 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 prior to
the date of this Agreement.WWC will cooperate toassist 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
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'scommunications 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 ofthe 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
tenninate the license granted by this agreement, at its discretion, at any time upon 180
days prior written notice to WWC. Upon revocation, the s\llTenderortermination 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 ofthis agreement.
7. Termination. WWC may terminate this Agreement, at WWC's sole option,
upon sixty (60) days prior written notice. Upon terminationWWC 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 wearandtear excepted.
If this Agreement is not terminated on or before July I, 2008, then subject to the terms of
this Agreement, WWC shall have the right to renew the term of this Agreement for an
_.. ..f.. additional term of five years (the "Renewal Term"). With respect to the Renewal Term,
WWC will automatically be deemed 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 term 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 supercedesanyprior 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 besettIed by the legal remedies available in any court
having jurisdiction.thereof; provided, however, prior to pursuing any Claim in court,.the
parities 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 expenses relating to the mediation. If either party is
unsatisfied withthe outcome of the non'-'binding mediation, then that party may pursue its
remediesinany court having jurisdiction thereof.
In witness, whereof, I have hereunto set my hand this day Of~~.
2003.
City of Bozeman
B1= l-...t.' 7~
Clark Johnson - City Manager
By:
'...... ~ .. , Name: ~c.. ~
TitI~: \ re ..... . .
__,_, - .n".
EXlllBIT A
(Site Description)
The subjectpropertyis in a portion of a 4.32 acre undeveloped neighborhood park
located within Grafs First Subdivision Second Filing, SE 1/.& Sec. 18, T2S-R6E, PMM
more commonly known as 1630 Kenyon Drive, Bozeman,MT
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ExmBIT B
(Construction Drawings Attacl1ed)
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SITE NAME:
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SITE NUMBER:
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