Larry, thanks for your insight! I was hoping you would chime in. My lawyer had the same concerns. -RickG
On Wed, Mar 3, 2010 at 11:01 AM, Larry Yunker <leyun...@wispadvantage.com> wrote: > After reading over the agreement, I see a quite a few items that I would > want to address. > > First and foremost, based on my experience with water tower access as an > ISP, I would have to note that 24x7 access needs to be negotiated. If you > have to pay for access outside of 8-5 MF then so be it... but your equipment > WILL GO DOWN on a Friday night after 5:00 and you will not want to wait > until Monday at 8:00AM to get it fixed! > > Second, also based upon my experience with water tower access as an ISP, I > would want provisions with regards to how you will handle tower maintenance > (i.e. painting of the tower, discontinued use of the tower, replacement of > the tower). You are looking at a month of downtime if the city decides to > have their tower painted. The sandblasting/painting crews will not work > with you... they will destroy your equipment if it's left on the tower > during their work. There is no easy answer to this... We required a village > to put up a replacement communications tower BEFORE disassembling a > decommissioned water tower.... but that only worked because the 911 system > needed the new tower just as badly as we did! > > Third, from a legal perspective, I would be careful about certain wording. > I see that this document is written as a "utility easement". You want to > watch out for words that identify you as a utility. In many states, > utilities are subject to state or local franchise taxes. The last thing > that you want to do is admit to being a "utility" and then have your local > village enact a franchise tax for all wireless internet utilities! > > Fourth, the contract mentions assignment but does cover transferability or > delegation. These issues are important in case you choose to sell your > tower rights or choose to discontinue service off of that tower. Likewise, > you need to protect against the Village selling off its water tower to a > private water company. (It happens... there are a lot of suburbs in Chicago, > Illinois that have outsourced their water plant). > > Fifth, you identify a type of service plan that you intend to provide. That > service plan should be subject to a separate SLA (service level agreement). > > Sixth, I would suggest that you better identify the types of equipment that > you can install. You will need NEMA cabinets, cabling, mounting gear, > battery backups, maybe even a generator. From what I understand, my former > company now has a fiber hut at the base of one of the village water towers. > You want to keep as many options open as possible without chasing them away > from the deal. > > Seventh, indemnification.... generally these liability issues are covered by > your INSURANCE. You have insurance, don't you? You had better! You name > the tower owner as an additional insured and in the case of a claim, your > insurance has to step in and defend you and the additional insured. In > fact, I believe that all of the villages that I contracted with required > that we provide proof of insurance and a separate binder for the village. > > Eighth, private holding company.... you can further limit your liability > under the contract by creating a separate legal entity that solely maintains > the lease on that tower, but it requires following corporate formalities to > a tee if you hope to avoid "piercing of the corporate veil". "Corporate > formalities" is a discussion to have with your attorney. > > > I'm sure that there are other issues to be addressed, but that's all I have > time to touch on at this point. > > Regards, > Larry E. Yunker II, Esq. > > Disclaimer: The opinions provided above are not to be considered "legal > advice". While I am a former WISP and I am currently licensed as an > attorney in the state of Ohio, I am not licensed in the state of Kentucky. > Therefore, you are advised to seek a legal professional who is licensed in > your state and you are warned not to rely upon the commentary as provided > above. > > > -----Original Message----- > From: wireless-boun...@wispa.org [mailto:wireless-boun...@wispa.org] On > Behalf Of RickG > Sent: Tuesday, March 02, 2010 7:17 PM > To: WISPA General List > Subject: Re: [WISPA] tower contracts > > I dont have any issues with them protecting themselves, my issue is > making sure I have protection. Maybe I'm making more out it than I > shoudl? Here is the whole agreement: > > EASEMENT AGREEMENT > 1. PARTIES: > , hereinafter referred to as > "Grantor". > CITY OF ANYTOWN, hereinafter referred to as "Grantee". > 2. AFFECTED PROPERTY: > Grantor is currently the owner of the following described real property > located in the City of Anytown, Kentucky: > Anytown Water Tower and its Premises > LEGAL DESCRIPTION - TBD > Hereinafter referred to as "the Property". > 3. GRANT OF EASEMENT: > For a period of five (5) years from the date of implementation, the Grantor > does hereby grant unto the Grantee, a Utility Easement for the Anytown > Water Tower and its premises (the Property) for the limited purposes > directly > associated with providing high-speed, wireless internet service to the > surrounding area. > 4. TYPE OF EASEMENT: > The easement described above shall provide the Grantee reasonable access > to the Anytown Water Tower and its premises (the Property) in order to > install and maintain antennae, associated transceiver devices, required > electrical power, and required electrical grounding. > All aspects of this easement are secondary to the primary purposes of the > Property as a public water supply. All fixtures, devices, and activities are > subject to the approval of the Water Department of the City of Anytown > and any existing or future requirements of the Kentucky Department of > Water and/or superseding authorities. > The City of Anytown does not provide for continuous business operations; > consequently, reasonable access to the Property is generally limited to > normal business hours and subject to the availably of municipal personnel > and resources. > 5. CONSIDERATION: > The City of Anytown recognizes the manifest public need for high-speed > internet access and the current technological limitations that result in the > requirements that only wireless technologies can address. Subsequently, > the City of Anytown does not require any payments in consideration of > this easement. > However, the City of Anytown shall provide for the costs of electrical > power to operate the Grantee's hardware once installed on the Property, not > to exceed a load of twenty amperes (20 Amps) at one hundred twenty volts > (120V). In consideration of these electrical costs, the Grantee shall > provide > its standard, non-profit service package and maintenance to the Office of > the Anytown City Clerk at 123 Main Street, Anytown, KY. The City of > Anytown may extend the network as needed for the purposes of > government. > 6. MAINTENANCE: > The Grantor shall maintain the Property in a manner consistent with its > primary purpose as a public water supply. The Grantee shall inform the > Grantor of any observed maintenance issues which might arise. > 7. INDEMNIFICATION: > The Grantee does hereby agree to defend, hold harmless, and indemnify > Grantor, its successors and assigns, from any claim of liability or any > other > claim involving the access, utilities, or arising out of the Grantee's > use of the > easement described above, unless caused by Grantor's negligent or willful > conduct or Grantor's failure to fulfill its maintenance obligations as set > forth > in Paragraph 6 above. As a government. the Grantor reserves all rights > afford under its Sovereign Immunity. > 8. REMEDIES: > In addition to all other remedies allowed by law, the parties, their > successors and assigns, shall have the right to seek injunctive relief for > the > enforcement of the terms and conditions of this agreement. > 9. BINDING EFFECT ON SUCCESSOR INTERESTS: > The terms, conditions and provisions of this agreement shall extend to, be > binding upon and inure to the benefit of the heirs, personal representatives > and assigns of the parties. > 10. ATTORNEY FEE: > In case suit or action is instituted in connection with this agreement, the > prevailing party shall be entitled to recover from the losing party such > sums > as the court may adjudge reasonable as attorney fees and costs in such suit > or action, or upon appeal. > DATED this day of , 20 . > GRANTOR: GRANTEE: > By: By: > MAYOR > CITY OF ANYTOWN > STATE OF KENTUCKY > > On Tue, Mar 2, 2010 at 7:05 PM, Cliff <w...@eccentrixtechnologies.com> > wrote: >> My understanding is, even without that clause written, being a government >> they have that clause. >> >> -----Original Message----- >> From: wireless-boun...@wispa.org [mailto:wireless-boun...@wispa.org] On >> Behalf Of RickG >> Sent: Tuesday, March 02, 2010 6:04 PM >> To: WISPA General List >> Subject: [WISPA] tower contracts >> >> One of our favorite topics :) >> >> So, I've had fairly good luck with the tower agreements that I've >> posted until lately. It seems people are getting real particular these >> days, which is fine. After two years of discusions, I've finally made >> some progress of getting on a nearby towns water tank. My issue is >> that they have scrapped my contract and come up with an "easement >> contract" of their own. Its not too bad but I'm concerned about the >> "indemification section". Basically, it reads as follows: >> >> INDEMNIFICATION: >> The Grantee does hereby agree to defend, hold harmless, and indemnify >> Grantor, its successors and assigns, from any claim of liability or any >> other >> claim involving the access, utilities, or arising out of the Grantee's >> use of the >> easement described above, unless caused by Grantor's negligent or willful >> conduct or Grantor's failure to fulfill its maintenance obligations as set >> forth >> in Paragraph 6 above. As a government. the Grantor reserves all rights >> afford under its Sovereign Immunity. >> >> Basically, it protects them but not me. LOL, normally my contract does >> the reverse! Thoughts? >> -RickG >> >> >> > ---------------------------------------------------------------------------- >> ---- >> WISPA Wants You! Join today! >> http://signup.wispa.org/ >> > ---------------------------------------------------------------------------- >> ---- >> >> WISPA Wireless List: wireless@wispa.org >> >> Subscribe/Unsubscribe: >> http://lists.wispa.org/mailman/listinfo/wireless >> >> Archives: http://lists.wispa.org/pipermail/wireless/ >> >> >> >> > ---------------------------------------------------------------------------- > ---- >> WISPA Wants You! 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