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Home My WebLink About2007-12-26 08-046 ORDERItem No. 02 046 Date: December 26, 2007 Item/Subject: ORDER, Authorizing the City Manager to Execute a License Agreement with New angular Wreless PCS, LLC Responsible gains. bnent: Legal In 2005, the City contracted with Intertech Associates to evaluate the voice communications of the city's emergency services. Based on the conclusions of their Inal report, four additional VHF radio receiver sites were identified as needed in order to provide a reliable system for Fire and Police. Three of the sites are located on Bangor Water Dstnct properties while the fourth is at Fre Station 5. A Community Oriented Policing Services (COPS) Interoperability, grant was secured to implement the Improvements. The Bangor Water District water tower on Venture Way is a key radio resolver locabon necessary to eliminate radio "dead spots" on the City's Westside. Unlike the others, the Venture Way Iocation presents a challenge for equipment placement There Is limited land available at this location for an additional equipment Wilding. At the recommendation of Bangor Water District, we approached Lingular Wireless to request that they allow us to place our equipment In a new building they are planning for that location. Lingular has agreed, and the attached license agreement has been negotiated. This agreement Provides adequate equipment area to meet the Citys needs at an annual lease fee of one dollar per year. The installation at this sole will complete this $600,000 emergency services radio communications Improvement project. The Government Operations Committee recommends approval. Department Head YS Comments: Recommend! IaR Recommend rov appal. City Manager Associated Information: Budget Approval: /�U/J � D r� Fnance(DiYector Legal Approval: 94 o ici r Introduced for Consent Agenda _A Passage _ First Reading Page Referral 3E D96 Assi9ncd to Cownilw p•ei[ico ➢ecembe[ 26. 20p7 Ca CITY OF BANGOR (TITLE.) ORDER, Authorizing the My Manager to IXecute a License Agreement with New Cingular Wireless PCS, LLC BY the Oh C'auod/ of the CRY of9agga: ORDERED, THAT the City Manager it hereby authorized, on behalf of the City of Bangor, to execute a License Agreement with Cingular Wireless PCS, LLC to protide space for the City to install, maintain, operate, repair, and replace emergency equipment. The Agreement shall be in a form substantially the same as attached hereto and in a final form approved by the City Solicitor or Assistant City Solicitor. M = c ML 1 I Dere er 26, 2W7 Yns # DB -066 UW ©.BHH UM ) Aurh r5vine eAe 01 v Mf ever to �eete f Lieeose Agieenent vitt dee i M l+r VSeel ess M AMgPm to co.ndror T f II ii H 046 Markel: Cell SixNamle' Cell site Now Hmem1A5 Fired Mset Number: 101123% LICENSE AGREEMENT TITS LICENSE AGREEMENT ("License") made this day of 2007 between New Choular Wireless PCS, LLC ("Licensor") and the City of Stages, Maim, USA ("Licenaee'). Background Licensor is the holder of a leasehold interest in certain real property and the improvements thereon located at Cleveland Street, Smaller, ME (die "Property') pursuant m the terms of a cedar Lease Agreement dated January 1, 2007 ('Prime Lease') attached hello as Exhibit A. Licensor and Licensee wish to enter into this License to allow Liceosm to area a linoted portion ofLicensor's equipment shelter for the placement and operation of normal radio broadcasting equipment on the terms, conditions and provisions set forth herein. 1. DEMISE AND USE Licensor hereby licenses to Liceruee, subject to the terms and conditions set font herein, that portion of Licensee's equipment shelter as shown on Exhibit B hereto (the "Premises'). Within said area Licensee may round, munter n, operate, relan and replace Licensee's equipment (the "Licensee Facilities" or "Facififies'). At no time during the term of this License shall Licensee disrupt, inmrrpt or interfere with Licensm's operations nor enter trim or intrude upon Licenser's area within the equipment shelter. Licensee shall have sole responsibility for scanning at its cast all expense any required permits or governmental approvals required for its use of the Premises. Further, the rights granted Licensee under this License are subject to Licensee obtaining all such permits and complying with all appficeble laws and ordimnces. Licensor agrees to cooperate with Licensee obtaining such permits or governmental approvals with all expenses to be paid by Licata ee. Licensee hereby represents and warrents that it shall at all times operate its equipment in compliance with applicable laws all smodards, and without causing any interference or degradation to Licensors opemtlous at the property. Licensee hereby acknowledges that this License is subordinate and subject m the terms of the Prime Lease. Licensee shall comply with all applicable provisions ufthe Prime Lease, and shall M Perform my act or use the Premises in any rummer that would constitute a default or breach of the Prime Lease. 2. TERM AND RENEWALS Subject to the condition that in no event shall the term of this License exceed the U8 646 tend of the Prime Lease, this License shall be for an initial term ("the Initial Term") of five (5) years. The "Commencement Date" hereunder shall be the date of this License as first carmen above. Licensee shall have the option to renew the Initial Term for up In two (2) consecutive five (5) year mores (collectively the "R rmaa l Terms', upon the terms and conditions set forth herein. This License shall renew automatically for each successive Renewal Term, mdess Licensee ne ifles Licensor of Licensee's intent not to renew this License no later then ninety, (90) days prior to the expiration of the then correct Renewal Term. Notwithstanding anything herein to the contrary, in the event the Prime Lease terminates, is canceled or otherwise expires, the term of this License shall likewise expire automatically by operation of law as of the same date. 3. RENTAL AND UTUJTQ Tice annum fee far the use of the Premises and utility service for the Initial Tenn eat any Renewal Terms shall he the sum of One Dollars ($1.00), b be paid in annually in advance. INDEMNIFICATION Licensee shall indemnify, Licensor against any claim, liability or lass from death, perso al injury or property damage resulting from or arising out of Licensee's use of the Premises, except to the extern attributable to the negligent or intentional acts or omissions of Licensor. Licensor shall indemnify Liceosce against any claim, liability or loss from death, personal injury or property damage raising out of Lioensor's use of the Premises, except to the extent attributable to the negligent or intentional acts or omissions of Licensee 5. DEFAULT 5.1 If Licensee defaults in the payment of the annual fee and such default continues for a period of fifteen (15) days after receipt of written notice man Licensor; or defaults in the performance of any other covenants or conditions herein contained, and such default shall continue for a period of thirty (30) days after receipt of written more from Licenser, than Licensor may terminate this License without further notice to Licensee. Licenser's right to terminate shall not be deemed to be an exclusive or limiting remedy, the parties acknowledging that Licensor shall have aft otter rights and remedies available at law or equity. 5.2 In the event Licensor defaults in any of its conventions and obligations hereunder, Licensee shall provide Licensor with written notice thereof, and Licensor shall have a reasonable time (but in no event less than thirty (30) days) mater the circumstances to care such default. If Licensor fails to cure such default, Licensee shall have arty and all rights and remedies available to it as may be provided in law or equity. 6. ADDITIONAL EQUIPMENT Licensee may not install any additional equipment at the Premises without 08 046 Licenser's prior written consent. Licensor's consent to any prior modification or other addition an the equipment or Licensee's Facilities shall not commute a waiver or consent to any further modification or addition. 7. TERMINATION 7.1. This License shall commence on the date. provided herein, and continue until expiration, unless temdnated as provided in this License. At termination of the License, Licensee shall remove all the equipment and other property of Licensee, without damage to the Premises. Any damage caused by Licensee's removal shall be repaired immediately m Licensee's sole cost and expense. 7.2. This License may be terminated by Licensee immediately upon writers notice to Licensor if (1) Licensee is unable to obtain any required permit or authorization or any such permit or carbonization is subsequently revoked or act renewed; (2) any, physical equipment or electronic emissions mmaially interferes with the operation ofLicersee's equipment, or (3) Licensee determines, based on technological or other developments, that it will be unable to use or corrtieme to use the Premises for its intended purpose. 7.3. Licensor may commune this License immediately if (1) my permit, authorization or approval obtained by Licensor for the Premises or the Tower is subsequently revoked or mot terse axi; (2) the Licensee Facilities materially interfere with the operation of Licenser's equipment (as Licensor may determine at its sole discretion) and Licenses is unable to eliminate such interfnemce within fomieen (14) days after come to Licensee of the interference; (3) the Prime Lease expires or is terminated; or (4) Licemsce commits any material breach of this License and has to cute such breach within fourteen (14) days atter notice of the breach 8. INSURANCE Limited by the Maine Tort Claims An, Licensee shall maintain throughout the term of this License personal injury and property damage insurance of 9 least $400,000 per person, $400,000 per occurrence and $400,000 for property damage insuring against all liability arising from Licensee's use, occupancy or mainamm ce of the Premises during the term of this License. Such policies shall more Licensor as an additional insured on its liability policy, shall state that the policies are not cancelable and shall act expire without at least thirty days prior notice to Licensor and Licensee shall, within tem day of the dee of this License and thereafter during the term upon Licenser's request, provide Licensor with a certificate ofinsa mance evidencing such insurance. 9. COMPLIANCE WITH LAW Licensee shall obtain at its sole cost and expense, and maintain as applicable to Licensee's me, Federal Communications Commission (`FCC') and Federal Aviation Administration ("FAA") authority to build and operate its Facilities. Licensee shall 38 046 install and operate its Facilities in ammma which audit comply with all federal, state and local laws and regulations governing the installation, operation and use thereof, including but not limited to those of the FCC and the US Environmental Protection Agency. Furthermore, Licensee and Licensor each warrant and same that it will conduct its activities on the Premises in compliance with all applicable Environmental Laws. Licence agrees to defend, indemnify and hold Licensor hornless from and against any and all claims, cones of action, demands and liability including, but not limited to, damages, costs, expenses, assessments, penalties, fines, losses, judgments and attorneys' fees that Licensor may suffer due to the introduction, use, existence or discovery of any Hazardon Substance on the Licensed Premises or Property or the migration of any Hamrdous Substance in other properties or released into the mviromnevt, that is caused by or results from Licensee's activities on the Premises. Licensor agrees to defend, indemnify and hold Licensee harmless from and against my and all claims, causes of action, demands and liability including but not limited m, damages, costs, expenses, assessments, penalties, fines, losses, judgments and attomeys' fees them Licensee may suffer due to the introduction, use, existence or discovery of my Hazardous Substance on the Premises or the migration of my Hazardous Substance to other properties or released into the envimnnsent, that is caused by or results from Limmost's activities on the Premises. The indemnification in this Section specifically include costs incurred in cmmection with my investigation of site conditions or any cleanup, remedial, removal or restoration work required by my govemmented anthenty. The provision of this Section will survive the expiration ortermhstion ofthis license. Licensee will not cause interference with the operations of Licensor or my other Party occupying the Premises on the date this License is signed, and if such interference mems, Licensee will eliminate such interference within forty-eight hours after notice of rinwhomece from the Licensor. 11. QMT ENJOYMENT; LICENSOR'SREPRESENTATIONS If Licensee observes and performs the covenants and conditions of this License and ta not in default, Licensor covenants and agrees that subject to the provision ret forth in ibis License including Licensees rights to terminate, Licensee shall peaceably and quietly joy the we of the Premises granted by this License without interference by Chooser. Licensor hereby represents and warrants to Licence that the entity executing this License has full authority to cater into and perform this License. IPillilliffT.xyL11051 s1. Licensee may not assign its interest in this License or otherwise convey, transfer 08 040^ sublet or sublicense any of its rights under dais License or any portion of its Facilities without Lacenam s prior consent Any assignee of Licensee shall assu ne mad agree in writing to perform Licensee's obligations under this License. Licensor may assign the Premises and its interest in this License upom written notice to Licensee, which notice shall some the vane, address and telephone number of Licensor's assignee. 13. hWNTENANCE If the Premises are damaged for any reason other than the wrongful or negligent act or omission of the Licensee or its contractors, and the Prunises are rendered unusable for Licensee's business purposes, the monthly fee shall abate until its the Premises are restored. Licensor shall maintain, at its sole cost and expense, all certificates, penrits or other approvals repaired to operate the Premises. Licensee accepts the Premises "as is^ without any representation or warranty as an its tradition Licensee agrees that by scraping the Premises, it has inspected the Premises. 14. REPRESENTATIONS Licensee and Licensor each represent and warrent to the other than (i) each is duly organized, validly existing, and in good standing under lire laws of the state in which it is conducting business; (u) each has all requisite power and authority to after into this License and to carry our and perform its obligations under the terms of this License; and (iii) this License has been duty authorized, executed and delivered by a representative with authority to do so, and constitutes a valid ant binding obligation of such party enforceable in accordance with its tams. 15. RADIO FREQUENCY COMPLIANCE The parties recognize that the site will be used by the Licensee to locate equipment used in connection with the operation of VUF emergency radio receivers that emit radio frequency energy, and agree to cooperate b limit homes exposure to radio frequency emissions to permissible levels, in accordance with the Federal Communications Commission ("FCC") and Occupational Safety mW Health Administration C'OSEUk") rules. Licensee agrees to take all reasonable actions necessary to ensure that its employees and contractors ave not exposed m radio frequency emissions in excess of permissible hoahs including but not limited to appropriate among; of Licensee's employees who may visit the site. Licensee agrees to ensure to the best of its ability that all authorized persons are made aware of the potential for exposure. 16. NOTICE Any notice or demand required or perruirted to be given hereunder will be sufficiently given if made by certified mail, postage prepaid, or return receipt requested, or overnight courier addressedtothe other party at due address set forth berein. Any such notice or demand will be deemed to have been made three (3) business days after it is postmarked and deposited with the United States Postal Service, if seat by mail, and the U 8 040 near business day if by overnight courier. Either party may from time to time designate any other address for this purpose by giving written notice thereof to the other party. Iftu Licensor: - Ifto Licensee New Cingular Winless PCS, LLC City of Bangor, Maine AM: Network Real Estate Admirdstrafon City Manager Re: Cell Site 4: ; Cell Site Name: 73 Harlow Street AM: Real Estate Dept Bangor, Maine 04401 Fixed Asset No: 6100 Atlantic Blvd. - Nor cross, CA 30071 with a copy to: with a copy to: New Cingular Wireless PCS, UC Fire Chief AM.: Legal Deliarhnmt(Maiw Site) City of Bangor Re: Cell Site k: ; Cell Site Name: 289 Main Street Fixed Asset No: Bangor, Maine 5 Wood Hollow Road Parsippany, NJ 07054 sed: New Cingular Wireless PCS, LLC 580 Main Street Bolton, MA 01740 AM: Real Estate Dept. ryAIl 1fT471RH WY;iI Licensee (or designee) shall have 24 hr entry access for emergency repairs or scheduled maintenance of authorized equipment Licensee shall minimize the number of key holders and maintain a tin of such. ImbfM14 & Licensee shall pay as additiaml met any Increase in real estate taxes levied against the Prerwsos and Licensee's equipment, which increased taxes are directly attributable to the Licensee's use and occupancy of the Premises. After notice, payment shag be made by Liwtsee within thirty (30) days after presentation of receipted tax bills. City of Bangor maintains a tax exempt status. 08 046 19. DESTRUCTION OR CONDEMNATION OF PREMISES If the Premises, in whole or in part, is damaged by Ore or other casualty so as to prevent Licensee's use of the Leased Premises and Licensor cannot or elects not to repair the Premises within a reasonable time period not to exceed thirty (30) days after the data of damage Licensee or Licensor will have the option to terminate dds License, without any further liability hereunder, upon written ounce to the other party. In the event of partial destruction of the Premises, Licensee will be entitled to a rent abatement until Licensor completes repairs and Licensee is she to narrow use of the Leased Premises. If a proceeding is incurred by any governmental authority pursuant to which the Premises, in whole or in part, is proposed to be taken or condemned, Licensee or Licensor will have the option to terminate Ws License at any time thereafter during the pendency of such proceeding without further liability hereunder, upon thirty (30) days written notice to the other patty. Licensee may at its own expense, make a claim in any condensation proceeding except for Licensor award involving the Premises for losses related to Licensee's Communications Equipment and relocation costa. 20. MLSCELLANEOUS 20.1 Tbis License shall be binding upon the parties hereto, thein respective heirs, executors, administrators, successors N interest, successors in title and assigns. This License shell be governed by the laws of the state where the Premises are located. 20.2 This License contains the entire agreement between the parties, mW comrot be amended or canceled except in writing signed by both parties. Headings used in the License are for convenience and are not part of the agreement. 20.3 Licensor and Licensee agree to do any further acts and execute such additional documents as the other may reasonably require to confirm dds License and carry out the purposes of the License. 20.4 Intentionally Deleted 20.5 The prevailing party in my dispute betwcen the parties may collect from the other party the prevailing party's costs and reasonable attomeys' fees incurred in the dispute. 21. RELOCATION OF COMMUNICATIONS EOUIPMENT Licensor reserves the right, upon ninety (90) days prior written notice, to relocate Licervsee's aluipment within the Premises, as Licensor determines. In the event a relocation is required, Licensee shall bear the expense of such relocation. If, however, Licensee detemdaes that the proposed relocation area is no longer consistent with the optimal operation of Licensee 's communication system, then Licensee shall have the right to terminate this License immediately. Upon termination of this License, Licensee shall have ninety (90) days to remove its equipment from Premises, anW return the Premises to its original condition, reasonable weer end [ear fiom the elements excepted. M. Force Ma eure. Licensor shall rut be liable to Licensee for any loss or damage to the Premises, Licemaxes use or its equipment due to fire, other casualty, act of God, the state of repair of the Premises, the bursting or leakage of any water, ger, sewer or steam pipes, or theft or any other act or neglect of my third party unless such loss or damage was caused by the sole negligent set or omission of Licensor, its agents, servants, employees, comhaators, licensees or invitees. IN WITNESS WNEBEOF, mail intending to be legally bound hereby, the parties hereto have caused this License Agreement to be duly executed as of the done first above written. Witness or Attest Licensor: New Cimgolm Wireless PCS, LLC, By: AT&T Mobility Corporation Its: Manager By: _ Name: Title: Witness or Attest Licimsee: City of Bangor By: Name: Title: