HomeMy WebLinkAbout01- TW Wireless, LLC; Kenyon Drive Water Tank 01-06
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LICENSE AGREEMENT FOR THE USE OF CITY PROPERTY
BY TW WIRELESS
THIS LICENSE AGREEMENT (this "Agreement") is an agreement between the City of
Bozeman, (the "City") and TW Wireless, L.L.c., a Delaware limited liability Company ("TW ").
Whereas, the City is the owner of the water tank located on Kenyon Drive, in the City of
Bozeman; and
Whereas, TW 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 TW;
Now therefore, in consideration of TW's promises herein, the City hereby gives permission,
revocable and terminable as hereinafter provided, to TW to use the water tank located on Kenyon Drive in
the City of Bozeman, during the period commencing December32, 2001 until DecemberZr, 2006 on the
terms and conditions as set forth below, which TW 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. This permission is given to TWas an accommodation to TW, and for an initial annual fee of
Eighteen Thousand dollars ($18,000.00). The annual fee shall be payable on or before December
30th of each year during the term of this agreement. The annual fee shall increase on an annual
basis by four percent (4%). TW acknowledges the title of the City to the above described
property and agrees never to deny such title or claim, at any time, any interest or estate of any
kind or extent whatsoever in the property by virtue of this agreement or its occupancy or use
hereunder.
2. TW shall exercise its privilege at its own risk and agrees to indemnity, defend, and hold harmless
the City from any and all liability, loss, or damage the City may suffer asa result of claims,
demands, cost or judgment against it, arising out of or in anyway connected with the occupation
or use ofthe property by TW, or its members, employees, guests, or invitees.
3. TW 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. Not
withstanding the foregoing, TW may assign this Agreement to any corporation or entity which
controls, is controlled by, or is under common control with, TW, or any corporation or entity
which results from a merger or consolidation with TW or with any entity that controls TW. No
transfer or assignment of the stock of TW, or any controlling interest in TW, whether by sale,
merger, exchange or other means, shall constitute an assignment of this Agreement.
4. TW shall maintain at its expense commercial general liability insurance covering actions by TW
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 TW.
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5. The placement of all telecommunications facilities on City-owned property must comply
with the following requirements:
A. The telecommunications facilities will not adversely interfere with the purpose for which
the property is intended: TW'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 this 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. TW shall construct a shield or shroud,
similar to the one currently in place, along the top of the water tank, capable of
housing up to five carriers. Such improvements shall become the property of the
City of Bozeman.
D. In addition to all other requirements, TW 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 only. TW may, at its own expense and subject to preapproval 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. TW 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 license..
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 TW with reasonable access to the site at all reasonable times; provided
however, TW will coordinate such access to the site with the City, and provided further,
that TW 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 TW.
The City's needs and maintenance requirements will supercede all other considerations.
In the event maintenance or other requirements involve removal or impact of TW's
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antenna, TW 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
TW with notice at least 48 hours in advance of any maintenance on or to the water tank
that may affect or impact TW equipment.
H. TW 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. TW
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 TW'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. IfTW'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 statues or
regulations of the Government, and TW cannot minimize the risk in accordance with the
Government's recommendations or ensure that TW'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 TW. Upon revocation, the surrender or termination of the license hereby given,
TW shall, within a reasonable time, quietly and peacefully surrender the portion of premises
occupied by TW in substantially the condition existing as of the commencement date of this
agreement.
7. TW may terminate this agreement upon sixty (60) days prior written notice. Upon
termination, TW shall remove its equipment and improvements, and will restore the site
to substantially the condition existing as of the commencement date of this agreement. If
this Agreement is not terminated on or before December~, 2006, then subject to Section
6 above, TW shall have the right to renew the term of this Agreement for an additional
term. With respect to each Renewal Term, TW will automatically be deemed to have
exercised its option for that Renewal Term, unless TW notifies the City in writing on or
before the expiration of the term or the Renewal Term, as the case may be, of TW'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, unless a different fee or other consideration is
negotiated.
8. TW shall at all times exercise due diligence in the protection of the City of Bozeman's
property against damages.
9. 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. 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;
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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 17 th day of December , 2001.
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City of Bozeman
Clark Johnson, City Manager
TW ess, L.L.C., a Delaware
limited ility company
Steohen Walters
Title: President - TW Wireless
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09/09/2002 14:31 FAX
J~n~05 2002 03'04
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MdeDIJ1IO\ to The Site 1.lceMlI A.1Ift01DP\
Tho .uad1ed SilO t._ ~ '""'" aad """""" """ tbO \1" day of~'
2oo1l1l>o .A~ by .... _Tho CilY of_l"L_ser"l. .... TW W""'....
L.t..C., . IJclaWlllC LimiIed Uabai<y CompanY l"~ of ..bK:b dri. AddcnduD' Is mad. a
part, is bereby anumdcd aud sup"pledlfllted as follows:
\. 1n case ofanr coofIiol bClW"<I'the \CtI1IS o{this AddoJUlUm tmd the ~
the tcttnS of this Addendum sbaU conUOl
2. Section 1 oftbe ]..icenso AgreSn1cnt is herebY changed to:
I. Thi> ....,....... is p.cn to TW OS on ~ to TW. .... fi>t ... iDitial......1 foe of
Eif,b\e"R "IJ1<IO'lIll'I <lei'"" ($II.OOO). Tho.-I foe sbaO be payable 011 '" -- J)ecell1ber
30" of ca<b y<ot dorD1S tho...... of.... ..,- ".ccpl (Ill" II>c .... yeor _111< _ual foe
wiD be payable OIl '" __ May 31. 2002 .... will be . ~....... tio: of $12, 7S0 ....
0C0dJI0D"l' _ Ap<U 15.2002 to o-nbe' 31. 2lJ02. Tho....... fi:e ""'11_ Oft aD
......1 basi> by foUr por<OGt l4~). TW ~ tbc tillc of tho COy to tbc ...... ...,.,ibed
pruportY .... _ _ to deoy oocl1 \iIIc '" clainl. at any time. any iJItotOlII '" ...... of any
kind'" _ ~ in 111< proportY by ...... of tWo __ or "" oo:cupan<Y OJ use
hereunder .
IN WITNESS WHEREOf. 1be pOnieS - baV.....,..r<d tWo ............ by proP"
","",P' \h<feuntO duly .....,....... '" to do on tbO dale.nd y= - borein _e -
Dales thig 29ttl day of Aoril ..-1002 -
LESSOR: LESSEE;
City of Bozeman TW WEST Wireless. L.L.C.. a pelllware
By~-=--l \.- ~ t.~
- BY: r ;.
_ 5 :D A-' A. J '~L: ~
eta'" Johnion
ITS: city MlllUlgef ITS; President
F~l 'falL tn. 8\-600\238
STATE. OF MONTANA )
8.S.
COUNTY OF GALLATIN)
011 tbis ~ day of I\pri 1 J in the year of 2.002_. before me Edi th Ann \/accl).
~. ootatY public. petSOnaUy ~ Clarl< Jo\lllOOn. pro~ed to
me 011 tbe basis ofsoli>filC:toI)' evid""'" to be the person(s) who'" IlllD>'Sls) is (atc)
!I1Jbo<tibed to tile w\Ihin ~ ..m ackOO",ledge<Ithat be (sbe) (\beY) .-med the
..... for. and.DO benalf of the City of Bozeman. Montana.
09/09/2002 14:31 FAX ~003
Jun-05~2002 03:05pm From-Qwest Corporate Real Estate +3036941719 T-983 P.OO4/D04 f-357
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subscnDed to the within .instIument. and aclcnow1edeed tbat he executed tbe same.
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