Wireless Telecommunications Antenna and Apparatus Site License

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THIS AGREEMENT is entered into between Montana State University (“University”)
and_________________________________________, (“Licensee”).

RECITALS:

1. The University owns and operates certain real property located at its Bozeman Campus, in Bozeman, Montana for general educational, service and research purposes; and
2. The University is willing to grant a license for uses of certain property which do not conflict with the primary purposes of owning, operating, maintaining and using such property for university services; and
3. Licensee has requested a license to access certain existing University property for the purpose of installing, operating and maintaining facilities for the transmission and reception of wireless telephone, video, data, and radio communication signals (“Wireless Services”), antennas, apparatus, and related equipment, building and materials (“Antenna Facilities”); and
4. University has appropriate facilities at its Bozeman Campus (“Campus”) suitable for such uses and is willing to license same contingent upon Licensee complying with all terms and conditions in this agreement.
5. Compliance with Telecommunications Antenna and Apparatus Siting Policy.

NOW, THEREFORE, for and in consideration of the promises and mutual covenants herein contained, the parties agree as follows:

PERMIT

1.1        The University does hereby permit the Licensee to enter portions of its Campus each more particularly described in Attachment “A”, (“Licensed Premises”), for the purpose of installing, operating, repairing and maintaining the antennas, apparatus, and all necessary equipment, buildings, materials and facilities, including without restriction, all utility lines of Licensee to and from the Licensed Premises required for the transmission and reception of “Wireless Services”.

“Antenna Facilities” and “Wireless Services” shall be itemized and specifically described in Attachment “B”, attached hereto and incorporated herein. The Licensed Premises initially requested by the Licensee will be inspected by both parties. An inventory of the condition and other existing owned or licensed equipment will be made at that time.

The Licensee will calculate and submit their radio frequency impact, which is included in Attachment B. Licensee will submit a frequency study comparing its frequency with all existing frequencies on the University campus. The University will review the information with the Information Technology Center, MontanaPBS-KUSM TV, Facilities Services, existing licensees, and the affected building supervisors, prior to this License Agreement being executed.

1.2        Licensee understands and agrees that this License shall be subject to the prior rights of all other University interests, public utilities, licensees and permittees. During the term of this License and any extension hereof, Licensee shall have reasonable access to the Licensed Premises 24 hours a day, 7 days a week to install, maintain, operate and repair its Antenna Facilities. Licensee, or Licensee’s authorized employee or agent shall contact any person(s) listed on Attachment “D” (as may be amended from time to time) who will provide entrance to the Licensed Premises as required by Licensee.

1.3        Installation shall proceed in accordance with the Installation Plan. (Attachment C) and the General Conditions (Attachment E). Licensee shall submit a Structural Design (Attachment H), an Electrical Design (Attachment I), and a Hazardous Materials Scope of Work (Attachment J), along with construction drawings stamped by an Engineer and/or Architect licensed in Montana. Once the antenna facilities and wireless services are installed and operational, Licensee will provide MSU/MAES with an “as built” plan that shows the equipment and services, within thirty (30) days after installation.

1.4        Licensee understands and agrees that this Agreement gives Licensee no exclusive rights of access, use or control of any University property except as to its specific Licensed Premises as provided herein and University may, at its sole and exclusive discretion, enter into similar agreements with, among others, competing wireless services providers.

1.5        Installed apparatus must be occupied by an antenna under this agreement within ninety (90) days.

TERM

2.1        Unless terminated, as provided elsewhere herein, this License shall continue in force for five (5) years from the Effective Date hereof, which shall be the "Primary Term". Upon mutual written agreement of University and Licensee entered into not less than ninety (90) days prior to the expiration of the Primary Term or any duly agreed upon renewal term, this License may be renewed for up to three (3) additional five (5) year terms (maximum total twenty years), under the same terms and conditions as set forth.

CONSIDERATION

3.1        For the initial five (5) year Primary Term of the License granted herein, Licensee shall pay University annual rental as determined by University $______________, for a maximum of twelve (12) antennas, located on up to twelve (12) apparatus, payable annually, in advance, with the payment of the initial year's Rent payable upon execution of this agreement by University. On the annual Anniversary of the Commencement Date of this License and every subsequent annual Anniversary date thereafter, the Rent shall be increased by Two Percent (2%) over the Rent paid over the preceding year, until any/each 5-year term ends. Rent shall be increased after each 5-year term, by an amount or percent determined by University. Rent for subsequent years shall be payable within thirty (30) days of the anniversary of the Commencement Date. Rent shall be payable to Montana State University-Bozeman, Campus Planning, Design & Construction, P. O. Box 172760, Bozeman, MT 59717-2760.

3.2        If the University terminates this License for any reason OTHER THAN BREACH BY LICENSEE prior to the expiration of the Primary Term or any renewal term for which consideration has been prepaid, University shall reimburse the Licensee for a pro rata share of the prepaid consideration for the unexpired portion of the term.

COORDINATION

4.1        Licensee shall have the right, at its expense, subject to University’s approval, which approval shall not be unreasonably withheld, to erect and maintain on the Premises improvements, personal property and facilities necessary to operate its system. The Antenna Facilities shall be initially configured generally as set forth in Attachment “B”. Licensee shall provide the University with reproducible “as built” drawings of the Antenna Facilities in AutoCAD format. No construction is to be initiated prior to approval of the construction plans by CPDC which approval shall not be unreasonably withheld. Installation will be coordinated with personnel from CPDC and other necessary university personnel.

4.2        Licensee acknowledges that University activities and events or public activities at and/or near the Licensed Premises may be occurring at the time Licensee is installing, constructing and/ or maintaining the Antenna Facilities. Installation and construction shall be scheduled by the Licensee in a manner that will accommodate and not interfere with the operations and maintenance of University and activities and events. Thereafter, Licensee shall provide 72 hour advance notice to the University of the need for access for repairs and maintenance. Emergency repairs require reasonable advance notice to the university.

EXISTING EASEMENTS

Licensee acknowledges the prior rights of existing easement holders and agrees to coordinate all installations, construction and maintenance activities through the CPDC.

GENERAL CONDITIONS DURING CONSTRUCTION 

Licensee is required to follow all parts of the University General Conditions during construction as listed in Attachment “E”

ANTENNA FACILITIES REQUIREMENTS, INTERFERENCE, AND OPERATION

7.1        The Antenna Facilities shall be designed installed, constructed and maintained in accordance with all University, local, state and federal regulations, codes and laws and University regulations. Licensee will conduct a study at their cost, and submit it to the University showing the impact of their equipment, including frequency, power output, angles of output, and cumulative impact of their equipment added to the campus. The Harmonic Evaluation is attached in Attachment B. The University must approve the installation before any work is begun. The Licensee may not change frequencies without the prior written approval of the University.

7.2        The University reserves the right to contract with a frequency coordinating contractor, at the Licensee’s expense, to research the projected impact on the University. Licensee shall operate their Antenna Facilities in such a manner that facilities do not interfere with the operations of the University or any of its departments, facilities, systems, including without restriction, any of its electrical and/or communication systems (voice, data and/or video), and other Licensees’ systems. Whenever University notifies Licensee in writing that the Antenna Facilities interfere with any University operations, Licensee shall immediately and properly remedy or cure the interference as soon as possible. Licensee will provide a clearly marked sign at its Equipment, listing the Licensee name, address and emergency telephone number(s) where the University may contact the Licensee or alternate contacts 24 hours per day, seven days per week.

7.3        Licensee expressly agrees that it will design, install, construct, operate, manage and maintain the Antenna Facilities and Licensed Premises in compliance with FCC standards and any other regulatory agencies’ regulations, at its sole cost and expense.

7.4        Licensee shall provide the University a copy of the materials provided to the FCC documenting compliance with Procedures Implementing the National Environmental Policy Act of 1969, 47 C.F.R. §§1.1301 et seq. and. The Montana Environmental Policy Act, Title 75, Chapter 1, MCA. The Uncontrolled Exposure calculations for each type of antenna are included in Attachment F. As applicable, this information shall include either the request, with documentation, for exclusion from the requirement to prepare an Environmental Assessment, or other environmental review as may be required under MEPA. If the site is considered accessible to the public, e.g., building mounted, an annual power density survey shall be submitted to University for review on each anniversary of this Agreement.

7.5        Licensee understands that the University currently operates certain telecommunications systems on campus. These telecommunication systems are extremely important to the University. For emergency situations that impact the safe and continuing operation of the University and require immediate resolution, such as interference with police and fire radio service, interference with MontanaPBS-KUSM, interference with MSU/MAES’s data and/or telecommunications system, or a damaged piece of equipment that presents an imminent threat to health and safety, Licensee must respond on site within two hours or notification in accordance with the contact list set forth in Attachment G. For non-emergency problems, Licensee must respond within 24 hours of notification. The University will provide Licensee with written notification which will identify whether the problem is an emergency or non-emergency problem.

REPLACEMENT OF FACILITIES/EQUIPMENT

Subject to the prior written approval of CPDC which approval shall not be withheld unreasonably, Licensee may replace or upgrade its Antenna Facilities if such replacement or upgraded facilities are of the same or reasonably similar type as the Antenna Facilities approved herein.

COMMUNICATION UTILITY EASEMENT REQUIREMENTS

All Montana State University communications services to the University are provided through a single point of demarcation located at 73 Renne Library, MSU-Bozeman, Bozeman, MT. ITC is solely responsible for extending services beyond the demarcation point. No commercial non-university services will be provided through the demarcation point. Other arrangements with communication service providers must be made and approved by the University.

ABANDONMENT

Upon termination, revocation or expiration of this License, Licensee shall have the right and duty to promptly remove the Antenna Facilities and restore the License Premises as provided elsewhere herein. During the term of this Agreement and any extension thereof, the Antenna Facilities shall remain the exclusive property of Licensee.

Licensee shall within sixty (60) calendar days after the expiration, non-renewal, cancellation or termination of this License, remove Licensee’s Antenna Facilities and other personal property without damaging any property belonging to University. Any property of the Licensee not removed within the aforementioned sixty (60) calendar days shall become the property of University to dispose of in any way that meet the needs and requirements of University. Licensee shall be liable and shall reimburse University for any expense or cost in removal or disposal of Licensee’s personal property either abandoned or not removed within the aforementioned sixty (60) days.

TERMINATION

11.1        This License shall terminate at such time as:

1. Licensee abandons the Antenna Facilities;
2. the Primary Term expires, or any renewal term expired without agreement to renew as provided above;
3. there is a breach of this License and failure to cure;
4. the university determines to renovate, demolish or remove the licensed premises, or the appurtenant structure/building with agreement for alternate sites; or
5. the university determines the License Premises are necessary for University purposes.

11.2        The University may exercise termination options (d) and (e) above, upon giving Licensee Ninety (90) days prior written notice. The parties will meet as soon as possible to discuss potential alternatives available to Licensee. The university will endeavor to make an alternative location available to licensee to accommodate licensee’s needs for antenna facilities in which case this license shall not terminate in such event. If the parties cannot agree to acceptable alternatives to termination, the termination will take effect upon the expiration of the 90 days. All rights and obligations of the parties shall cease as of the date of the damage or destruction, and licensee shall be entitled to a prorated reimbursement of any prepaid rent. The University shall not be liable for any costs, injury, damage, expense or loss accruing to Licensee pursuant to the expiration, non-renewal, cancellation or termination of this License as provided.

11.3        Except as otherwise provided herein, this License also may be terminated without penalty or further liability:

1. upon ninety (90) days’ prior written notice by Licensee if Licensee is unable to obtain, maintain, or cancels any license, permit or governmental approval necessary to the construction and/or operation of the Antenna Facilities or business; or
2. upon ninety (90) days’ prior written notice by Licensee if the Licensed Premises are or become unusable because of Licensee’s design or engineering specifications for its Antenna Facilities or the communications system to which the Antenna Facilities belong; or
3. immediately upon written notice if the Licensed Premises or the Antenna Facilities are destroyed or damaged so as to substantially and adversely affect the effective use of the Antenna Facilities. In such event, all rights and obligations of the parties shall cease as of the date of the damage or destruction, and Licensee shall be entitled to a prorated reimbursement of any prepaid rent.

RESTORATION 

Upon the cancellation, non-renewal, expiration, or termination of this License for any reason whatsoever, Licensee shall surrender the License Premises in a clean and orderly manner and shall, as requested by the University, restore the License Premises to a condition at least equivalent to that which existed at the time of execution of this Agreement, other than normal wear and tear, including patching, painting, and repairing the areas of university property impacted by the antenna.

INDEMNIFICATION 

Licensee agrees to indemnify, defend, and hold harmless the University from and against all liability for damages, claims, suits, costs, legal expense, fees (including without limitation, reasonable attorney fees), directly or indirectly caused by Licensee, its officers, representatives, agents, contractors, and employees, in whole or in part, resulting in injuries or death to persons or damage or loss to property related to Licensee’s performance of this Agreement. However, Licensee shall not indemnify or save harmless University from such claims or damages to the extent attributable directly and solely to the acts or omissions of University officers, sub-Licensees, representatives, agents, contractors, and employees. Each party shall give the other party hereto prompt and timely notice of any claim or suit instituted which in any way, directly or indirectly, contingently or otherwise, affects or might affect the other party; provided, however, such notice shall not be a precondition to indemnification hereunder and provided further that licensee shall have sole right of defense and settlement of any covered claim and university’s indemnification hereunder shall be reduced by the extent that University’s failure to provide prompt notice of a claim hindered Licensee’s ability to defend such claim.

HAZARDOUS MATERIALS

Licensee shall not keep, store, sell, or dispose of on or about the License Premises any materials, wastes or substances which are in any way explosive, hazardous, dangerous or toxic under any federal, state or local environmental, health or safety law, ordinance, code, statute, rule or regulation such as, lead paint, asbestos, and other illegal contaminants. University grants use of electrical transformers that are usual and customary in telecommunications sites, as long as they are certified not to contain PCBs. Licensee shall notify University immediately if its employees, agents or contractors cause any hazardous substance or oil or fuel spillage or release of hazardous materials on the License Premises. Licensee will provide any necessary Material Safety Data Sheets as required by the University Safety and Risk Management Office. See Attachment J.

UTILITIES AND TAXES

All utilities utilized by licensee in connection with the License Premises by Licensee shall be separately metered and shall be paid in their entirely by Licensee. Licensee, subject to University’s reasonable approval, may connect to Utilities existing within the University and Licensee shall pay for its own power consumption used after receipt of an invoice from University indicating the usage amount. Licensee shall pay any personal property tax, real property tax or any other tax or fee which are directly attributable to the presence or installation of Licensee’s equipment and improvements.

NOTICES

Notices, payments, insurance certificates and other communications to the University pursuant to the provisions hereof shall be sufficient if postage prepaid addressed to:

Campus Planning, Design & Construction
Montana State University-Bozeman
6th & Grant
P. O. Box 172760
Bozeman, MT 59717-2760

COMPLIANCE WITH LAW

The Licensee shall abide by the conditions of this License and all applicable laws and regulations of the City of Bozeman, County of Gallatin, State of Montana and the United States of America relating to its performance of this Agreement. Among other legal responsibilities, Licensee shall be responsible for obtaining, at its cost, any and all permits and/or satisfying any applicable zoning laws, rules or regulations which may be required, prior to commencement of installation of the Antenna Facilities at the License Premises and maintaining same during the entire term of this Agreement and any renewals. At the University’s request, Licensee shall supply documentation to the University to establish its compliance with the laws cited hereunder.

LIMITATION

The License fee provided herein does not include consideration for, among other things, damages, if any, which may be caused by Licensee to property of University on or off the Licensed Premises or any losses, costs, expenses or damages to The University caused by acts or omissions of Licensee, its officers, employees, agents, contractors or representatives not in accordance with this License.

NO ASSIGNMENTS

Neither this License nor any rights or privileges granted hereunder may be assigned, subcontracted, or sublicensed, except upon written consent of the University, which consent shall not be unreasonably withheld. Provided, Licensee may assign this License without such consent to any person controlling, controlled by, or under common control with Licensee, or any person or entity that, after first receiving all applicable state and federal regulatory approvals, acquires Licensee’s communications business and by express written agreement or operation of laws assumes all obligations of Licensee under this License. Upon such assignment, Licensee shall be relieved of all contractual liabilities and obligations hereunder.

COMPLETE AGREEMENT

This is the complete agreement between the parties and no additions, amendments, alterations, or changes in this License shall be effective unless reduced to writing and signed by both parties hereto. Additionally, no statements, discussions or negotiations shall be deemed or interpreted to be included in this License unless specifically and expressly provided herein. This Agreement shall supersede and replace any and all prior agreements between the parties with respect to the subject matter hereunder.

TIME OF ESSENCE

For the purposes of this License, time shall be deemed to be of the essence.

MULTIPLE ORIGINALS

This License may be executed in multiple counterparts, each of which shall be deemed an original.

EFFECTIVE DATE

This License shall be effective upon payment of the fees required herein, provision of the required proof of insurance and compliance with laws necessary for installation, and execution of this License by the last party hereto to sign.

NONINTERFERENCE

24.1        Licensee agrees and acknowledges that this License authorizes Licensee to use and occupy a portion of certain University properties for the location of its Antenna Facilities only as provided herein and only in a manner which will not interfere with University use of the properties and/or the accomplishment of its education, research and service operations on or off campus, which shall be determined at the sole and exclusive discretion of University and Licensee shall install, operate, repair, and maintain its Antenna Facilities in strict accord with this License.

24.2        University shall take reasonable steps to restrict its subsequent tenants, permittees and/or Licensees from conducting their activities in such ways as to materially interfere with Licensee’s activities as authorized hereunder. If the use and operation of similar antenna facilities of a subsequent permittee, or licensee materially interferes with the proper operations of Licensee, University shall, in good faith and exercising due diligence, work with the permittees and/or licensees to negotiate with Licensee to eliminate the interference, including without restriction, making reasonable adjustments in their use and/or operations of their facilities.

24.3        If the use and operation of Licensee’s Antenna Facilities materially interferes with the proper operations of subsequent University permittees and/or Licensees, Licensee and all parties affected shall, in good faith and exercising due diligence, work with the University and negotiate with the other parties to eliminate the interference, including without restriction, making reasonable adjustments in its use and/or operations of its Antenna Facilities.

PROPERTY INTERESTS

Licensee acknowledges and agrees that Antenna Facilities Sites are first and foremost the property of the University, and that the Licensee is not granted any property interest hereby, and that the terms of this License shall in no way inhibit the right of University to use the Licensed Premises or adjacent property in any manner it deems necessary and proper. Licensee acknowledges that it has inspected the Licensed Premises and takes the Licensed Premises “AS IS”. The University makes no warranties or representations that the Licensed Premises are suitable or proper for Licensee’s purposes nor does it guarantee utility service to the site or that Licensee’s use of Licensed Premises will be non-interfering with University operations as provided in Section 7 of this License Agreement.

NONCOLLUSION

Licensee agrees that it has not been and shall not be a party to any collusion with University or any of their officials, or employees as to the terms or conditions of this License, and has not and will not exchange, give or donate money or other things of value for special consideration to University or any of their officials, trustees, or employees, either directly or indirectly, in the procuring and execution of this License.

WARRANTY AND LIMITATION OF LIABILITY

ISSUANCE OF THIS LICENSE DOES NOT CONSTITUTE ANY EXPRESS OR IMPLIED WARRANTIES OF TITLE, INTEREST OR RIGHT TO POSSESSION OF THE LICENSED PREMISES NOR OF THE PHYSICAL CONDITION OF ANY PROPERTY SUBJECT TO THIS LICENSE. LICENSEE SHALL BE RESPONSIBLE FOR IDENTIFYING OTHER PROPERTY INTERESTS, IF ANY, AND ARRANGING WHATEVER ADDITIONAL PERMISSION AS MAY BE REQUIRED. UNIVERSITY MAKES NO WARRANTIES, EITHER EXPRESS OR IMPLIED, AS TO ANY MATTER WHATEVER, INCLUDING WITHOUT LIMITATION, CONDITION OF THE LICENSED PREMISES OR ITS FITNESS FOR LICENSEE’S PURPOSE. IN NO EVENT WILL THE UNIVERSITY, ITS REGENTS OR EMPLOYEES BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT OR OTHER DAMAGES WHATSOEVER ARISING OUT OF LICENSEE’S USE AND/OR LOSS OF USE AND/OR INABILITY TO USE THE LICENSED PREMISES FOR ANY REASON WHATEVER, INCLUDING BUT NOT LIMITED TO UNIVERSITY’S NEGLIGENT ACTS OR OMISSION.

BREACH

A breach of any provision of this License shall act as a breach of the entire License unless the breach is waived in writing by the non-breaching party. No waiver of any breach by any party hereto of any terms, covenants or conditions herein contained in this License shall be deemed a waiver of any subsequent breach of the same, similar or different nature.

DEFAULT

Except as otherwise specifically and expressly provided in any paragraph hereto, should any party hereto fail to perform, keep or observe any of the terms, covenants, or conditions herein contained and fails to cure such failure within thirty (30) days from its receipt of written notice of breach/default; or such longer period as may be required to diligently complete a cure commenced within the thirty day period, then this License may be terminated by any party not in default upon (10) days prior written notice.

THIRD PARTY BENEFICIARIES

 All parties expressly agree that no third-party beneficiaries, expressly or implicitly, are intended to be or shall be created or acknowledged by this License. This License is solely for the benefit of the Licensee and the University, and none of the provisions hereof are intended to benefit any third parties.

GOVERNING LAW

This License Agreement shall be governed by the laws of the State of Montana, exclusive of its conflicts of laws provisions as if this Agreement had been executed and delivered in Montana.

JURISDICTION AND VENUE

The parties hereto expressly agree and consent to the jurisdiction of the State of Montana and hereby consent and agree that the venue of any litigation relating to or involving this License and/or the rights, obligations, duties and covenants therein shall be in the Eighteenth Judicial District in and for Gallatin County.

BINDING EFFECT

The parties agree that this License Agreement shall be binding upon their respective successors, assigns, or transferees of any and every nature, if assignment and/or transfer is permitted by the specific terms of this Agreement.

INVALIDITY

If any part of this Agreement is ever ruled to be invalid, illegal, or unenforceable by a court or other body of competent jurisdiction, the remainder of this Agreement shall continue in full force and effect and shall be deemed modified to the minimum extent necessary to make it enforceable. Provided, if the ruling in question is subsequently overruled or obviated by Legislative or other lawful action, the severed provision(s) of this Agreement shall return to full force and effectiveness.

LEGAL REPRESENTATIVES

Nothing herein shall be construed to make either party the legal representative or agent of the other party, nor shall either party have the right or authority to assume, create or incur any liability or any obligation of any kind, either expressed or implied, in the name of or on behalf of the other party.

LICENSEE: ___________________________

By:__________________________________

Title:_________________________________

Date:_________________________________

MONTANA STATE UNIVERSITY-BOZEMAN

By: __________________________________

Title:_________________________________

Date:_________________________________


Attachments Incorporated into License
Attachment A – Licensed Premises Description – University building location for antenna, equipment, utilities, apparatus, etc.
Attachment B – Antenna Facilities and Wireless Services – Services, Frequencies, Frequency Study, Utilities to be installed
Attachment C – Installation Plan
Attachment D – Contact Information for MSU-Bozeman (see below)
Attachment E – General Conditions and Supplemental Conditions located on this webpage: http://www.montana.edu/pdc/contract-documents.html
Attachment F – Uncontrolled Exposure FCC Calculations
Attachment G – Contact List for Licensee
Attachment H – Structural Design
Attachment I – Electrical Design
Attachment J – Hazardous Material Scope of Work

ATTACHMENT D

Contact Information for MSU-Bozeman