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HomeMy WebLinkAboutResolution No. 108-17 - MasterLicenseAgreement.VerizonWireless RESOLUTION BE IT RESOLVED by the Common Council of the City of Rochester that the Common Council concurs in the resolution of the Rochester Public Utility Board appended hereto, which resolution requests approval for the City to enter into a Master License Agreement with Verizon Wireless for the installation of small cellular antennas on City owned traffic control and streetlight poles. Copy of the Agreement is attached. The Mayor and the City Clerk are authorized and directed to execute said agreement on behalf of the City. PASSED AND ADOPTED BY THE COMMON COUNCIL OF THE CITY OF ROCHESTER, MINNESOTA, THIS __________ DAY OF _______________, 2017. ________________________________ PRESIDENT OF SAID COMMON COUNCIL ATTEST: __________________________ CITY CLERK APPROVED THIS _____ DAY OF ______________________, 2017. ________________________________ MAYOR OF SAID CITY (Seal of the City of Rochester, Minnesota) res.pu\\Verizon.MLA MASTER LICENSE AGREEMENT This Master License Agreement (the "Agreement") made this ____day of _____________ 20__, between the City of Rochester, Minnesota, a Minnesota municipal corporation, with its principal offices located at 201 4th Street SE, Rochester, Minnesota 55904, acting by and through its Common Council, and the City of Rochester, a Minnesota municipal corporation with its principal offices located at 4000 East River Road N.E., Rochester, MN, 55906, acting by and through its Public Utility Board, hereinafter designated “LICENSOR” or “City” and Verizon Wireless (VAW) LLC d/b/a Verizon Wireless with its principal offices at One Verizon Way, Mail Stop 4AW100, Basking Ridge, New Jersey 07920 (telephone number 866-862-4404), hereinafter designated LICENSEE. LICENSOR/City and LICENSEE are at times collectively referred to hereinafter as the "Parties" or individually as the "Party." WITNESSETH WHEREAS, LICENSOR is the owner, grantee or licensee of certain light poles, traffic signal poles, public rights-of-way (“ROW”) and/or real property, which are located within the City of Rochester, Minnesota and has agreed to provide this license to provide wireless services licensed by the Federal Communications Commission ("FCC") to LICENSEE; and WHEREAS, LICENSEE desires to install, maintain and operate communications equipment (“Equipment”) in and/or upon certain of LICENSOR's light poles, traffic control poles, and certain public ROW and/or real property; and WHEREAS, LICENSOR and LICENSEE desire to enter into this Agreement to define the general terms and conditions which would govern their relationship with respect to particular sites at which LICENSOR may wish to permit LICENSEE to install, maintain and operate communications equipment as hereinafter set forth; and WHEREAS, LICENSOR and LICENSEE acknowledge that they will enter into a License Supplement ("Supplement"), a copy of which is attached hereto as Exhibit A, with respect to any particular location or site which the Parties agree to license. NOW, THEREFORE, in consideration of the grant of permits to use the City’s ROW, and the mutual covenants contained herein, the adequacy and sufficiency of which is hereby acknowledged, the parties hereto, for themselves, their successors and assigns, do hereby covenant and agree as follows: I.LICENSEE'S REQUEST TO USE PREMISES a.Before the LICENSEE shall make use certain space on of any of the LICENSOR'S light poles, traffic signal poles, conduits, conductor pull boxes, appurtenances, public ROW and/or real property as shall be more fully described in each Supplement to be executed by the Parties, hereinafter referred to as the “Premises” under this Agreement, City of Rochester Master License Agreement 3496761v1 1 LICENSEE shall request permission in writing, which writing shall include a draft Supplement, and shall comply with the procedures set forth in this section. Approval of this Agreement by the LICENSOR shall be in the form of an approved City Council Resolution of this Agreement. Following said approval of this Agreement, each individual Supplement may be approved by the City Engineer. LICENSEE acknowledges and agrees it must obtain a Right of Way Permit for each site that is located in a City right-of-way. The City's current Right of Way Permit application form is attached hereto as Exhibit B. b.LICENSEE shall have a non-exclusive, terminable/revocable license, but not a leasehold interest at its sole cost and expense, to use the Premises, as identified in each individual supplement, as a wireless communications antenna facility (“Approved Use”). A supplement is only terminable/revocable pursuant to the terms and conditions provided herein. LICENSEE's equipment must be mounted on the top of the poles. No pedestrian level light poles are to be used. c.In accordance with this Approved Use, the LICENSEE has a non-exclusive, terminable/revocable license, but not a leasehold interest, to install, operate, maintain, repair, replace, store or remove its antennas, equipment, and appurtenances (collectively, “Antenna Facilities”), which shall be shown on an Exhibit to each Supplement. Upon written approval of LICENSOR, LICENSEE may replace the aforementioned Antenna Facilities with similar and comparable equipment, provided said replacement does not increase structural loading of LICENSOR’s pole on any Premises. d.Regarding each individual Supplement, within thirty (30) days after the receipt of such application the LICENSOR shall notify the LICENSEE in writing whether the application is approved or rejected. LICENSEE shall use the Premises only in accordance with good engineering practices and in compliance with all applicable Federal Communications Commission (“FCC”), National Electrical Code (“NEC”), National Electrical Safety Code (“NESC”), federal, state, and local rules, laws and regulations. e.After receipt of notice from the LICENSOR regarding the approved application, the LICENSEE shall furnish the LICENSOR detailed construction plans and drawings for each individual Premises, together with necessary maps, indicating specifically the poles of the LICENSOR to be used, the number and character of the attachments to be placed on such Poles, equipment necessary for LICENSEE'S use, replacements of existing pole(s), any additional pole(s) which may be required, and any new installations for transmission conduit, pull boxes, and appurtenances. The LICENSOR shall, on the basis of the City Engineer’s issuance of a Permit for each individual Supplement, such detailed construction plans and drawings, submit to the LICENSEE permission to proceed with attachment work (“Work.”) The Parties shall execute a Supplement for each Premises. Upon completion of the executed Supplement and Work, the LICENSEE shall have the right to use the Premises and to make attachments in accordance with the terms of the application and of this Agreement. The LICENSEE shall perform all Work at its own expense and make attachments in such manner as to not interfere with the service of the LICENSOR. f.If LICENSEE’s installation requires a new pole to be constructed or an existing City of Rochester Master License Agreement 3496761v1 2 pole to be replaced by LICENSEE (the “New Pole”) then, any such New Pole, shall be deemed to be a fixture on the Property and the New Pole shall be and remain the property of the LICENSOR, without further consideration to or from LICENSOR. The design of the New Pole shall be approved by the LICENSOR. Upon completion of LICENSEE’s installation, LICENSOR shall be solely responsible for any and all costs relating to the operation, maintenance, repair and disposal of the New Pole. If the New Pole replaces an existing pole, then also as part of LICENSEE’s installation, LICENSEE shall remove, dispose, salvage and or discard such newly replaced pole at a location designated by LICENSOR. All Poles used by LICENSEE under this Agreement shall remain the property of the LICENSOR, and any payments made by the LICENSEE for changes to existing lighting or signal poles, conduits, conductor pull boxes, facilities, and appurtenances, or installation of any new Poles, conduits, conductor pull boxes, facilities, or appurtenances, under this Agreement shall not entitle the LICENSEE to ownership of any of said infrastructure. g.The LICENSOR reserves the right to exclude any of LICENSOR’s light poles, electric distribution poles, electric transmission poles, traffic signal poles, towers, conduits, conductor pull boxes, appurtenances, public ROW and/or real property from use by LICENSEE. h.Neither this Master License Agreement nor any Supplement creates a lease, possessory interest, easement, franchise, or any other real property interest in any part of the Premises. In the absence of an executed Supplement, LICENSEE has no right to use the Premises for any purpose. II.PREMISES. Pursuant to all of the terms and conditions of this Agreement, and the applicable Supplement, LICENSOR agrees to license to LICENSEE Premises, for the installation, operation and maintenance of communications equipment; together with the non-exclusive right of ingress and egress from a public ROW, seven (7) days a week, twenty four (24) hours a day, over the Property (as defined below) and to and from the Premises for the purpose of installation, operation and maintenance of LICENSEE's communications facility. The LICENSOR's light poles, traffic control poles, and other poles and towers are hereinafter referred to as "Pole" or “Poles”. The entirety of the LICENSOR's ROW and real property is hereinafter referred to as "Property". The primary use and purpose of the Property, inclusive of the Premises, is to provide for traffic control and street lighting for the customers of the LICENSOR (“Primary Use”). LICENSOR’S operations in connection with pursuit of the Primary Use (“LICENSOR’S Operations”) take priority over LICENSEE’S operations. LICENSEE agrees that the following priorities of use, in descending order, shall apply in the event of communication interference, emergency public safety needs, Premises repair or reconditioning, or other conflict while this Agreement is in effect, and LICENSEE’S use shall be City of Rochester Master License Agreement 3496761v1 3 subordinate accordingly: (1)LICENSOR; (2)Public safety agencies, including law enforcement, fire, and ambulance services, that are not related to LICENSOR; (3)Other governmental agencies where use is not related to public safety; (4)Pre-existing LICENSEES (if any); (5)LICENSEE referenced in this Agreement. In the event of Jeopardy that poses an immediate threat of substantial harm or damage to the health, safety and welfare of the public and/or Property/Premises, as solely determined by LICENSOR (“Jeopardy”), the LICENSOR may take actions the LICENSOR determines are required to protect, the health, safety and welfare of the Public, or personal property of the Public, from such Jeopardy provided that promptly after such emergency access onto the Premises, and in no event later than twenty-four (24) hours after such access, LICENSOR gives written notice to LICENSEE of LICENSOR’S emergency access. If the LICENSOR determines that the conditions of a Jeopardy would be benefited by cessation of LICENSEE’S operations, LICENSEE shall immediately cease its operations on the Premises upon notice from LICENSOR to do so, and the Term (as defined herein) of the applicable Supplement shall terminate. In the event there are not sufficient electric and telephone, cable or fiber utility sources located at the Premises or on the Property, LICENSOR agrees to grant LICENSEE or the local utility provider the right to install such utilities on, over and/or under the Property and to the Premises as necessary for LICENSEE to operate its communications facility, provided the location of such utilities shall be as reasonably designated by LICENSOR. LICENSEE must obtain and submit to the LICENSOR a structural engineering study carried out by a qualified structural engineer, showing that the Pole(s) is (are) able to support the Antenna Facilities. Said study must be signed by an engineer licensed in Minnesota per State Rule 1800.4200 and Minnesota Statute 326. If the study finds that any proposed structure is inadequate to support the proposed antenna loads, LICENSOR may decline to permit installation. III.INSTALLATION OF EQUIPMENT a.Construction Plans (“Construction Plans” or “Plans”) For the initial installation of all Antenna Facilities and for any and all subsequent revisions and/or modifications thereof, or additions thereto, LICENSEE shall provide LICENSOR and LICENSOR’S City Engineer (“Construction Engineer”) or designee as set forth in Section I. a., each with two (2) sets of construction plans (“Construction Plans”) consisting of the following: CAD drawings showing the location and materials of all planned installations plus an Engineer’s Estimate of all materials and construction methods; City of Rochester Master License Agreement 3496761v1 4 Construction Specifications and Product Specifications for all planned installations; Diagrams and Shop Drawings of proposed Antenna Facilities; A complete and detailed inventory of all equipment and personal property of LICENSEE actually placed on the Leased Premises. LICENSOR retains the right to survey the installed equipment. Construction Plans shall be easily readable and subject to prior written approval by the LICENSOR’S Construction Engineer, which shall not be withheld, conditioned or delayed without cause. LICENSOR shall have thirty (30) business days to review and comment on the Construction Plans. Should the plans need to be revised based on the comments provided by the LICENSOR’S Construction Engineer, no construction shall commence until Final Approval is granted by the LICENSOR’S Construction Engineer. Final Plans shall have affixed to them the signature of the LICENSEE’S Construction Engineer who shall be licensed in the State of Minnesota per Minnesota Rule 1800.4200 and Minnesota State Statute 326. b.Construction Scheduling At least ten (10) business days prior to LICENSEE’S construction mobilization, LICENSEE shall conduct a meeting (“Pre-Construction Meeting” or “Pre-Con Meeting”) on the Property or other location as agreed upon. Said meeting shall be attended by the Construction Engineer, LICENSOR’S representative(s) and all parties involved in the installation. c.Construction Inspection All construction activity shall be subject to inspection and approval by the Construction Engineer. Inspection will be performed beginning with the Pre-Con Meeting and continuing through installation/construction/punch-list and verification of as-built drawings at project completion as determined by LICENSOR, at LICENSEE’S expense. If deemed necessary by the LICENSOR’S Construction Engineer, construction work performed without approval of the Construction Engineer will not be accepted and shall be removed or uninstalled at LICENSEE’S sole expense. LICENSEE shall be solely responsible for all costs associated with said inspection and approval of construction work by Construction Engineer. d.Exposed Antenna Facilities All Antenna Facilities affixed to the Structure which have exterior exposure shall be as close to the color of the Structure as is commercially available to the LICENSEE. For exposed cables, wires or appurtenances, LICENSOR reserves the right to require LICENSEE to provide cables, wires or appurtenances in manufactured colors as commercially available, in lieu of painting. City of Rochester Master License Agreement 3496761v1 5 e.Damage by LICENSEE Any damage to the Property, Leased Premises, or LICENSOR’S equipment thereon caused by LICENSEE’S installation or operations shall be repaired or replaced at LICENSEE’S expense and to LICENSOR’S reasonable satisfaction. f.As-Built Drawings (“As-Built” or “As-Builts”) Within thirty (30) days after LICENSEE activates the Antenna Facilities, LICENSEE shall provide LICENSOR with an As-Built drawing in electronic file format compatible with LICENSOR’S record file system consisting of As-Built drawings of the Antenna Facilities installed at each Premises and any improvements installed on the Property, which shall show the actual location of all equipment and improvements. Said drawings shall be accompanied by a complete and detailed site survey of the Property, inventory of all equipment, and Antenna Facilities. g.Permits The LICENSEE may also be required to obtain from the LICENSOR, or the appropriate governing agency as applicable, any and all permits required for a complete installation. Said permits shall include, but not necessarily be limited to: Right-of-Way, Obstruction/Excavation, Meter Hooding, Storm Water, etc. No zoning permits, zoning review procedures, or other zoning approvals are required pursuant to City Code, including Chapters 60 through 65. Applicable fees for any permits shall be borne by the LICENSEE and the LICENSEE shall be bound by the requirements of said permits. IV.MAINTENANCE and REPAIR of EQUIPMENT (a)Property LICENSOR reserves the right to take any action it deems necessary, in its sole and reasonable discretion, to repair, maintain, alter, or improve the Property in connection with LICENSOR’S Operations (b)Structure Reconditioning and Repair (1) From time to time, LICENSOR paints, reconditions, or otherwise improves or repairs the Structure in a substantial way (“Reconditioning Work”). LICENSOR shall reasonably cooperate with LICENSEE to carry out Reconditioning Work activities in a manner that minimizes interference with LICENSEE’S Approved Use. (2) Except in cases of emergency, prior to commencing Reconditioning Work, LICENSOR shall provide LICENSEE with not less than thirty (30) days prior written notice thereof. Upon receiving such notice, it shall be the sole responsibility of LICENSEE to provide adequate measures to cover or otherwise protect LICENSEE’S Antenna Facilities from the consequences of such activities, including but not limited to City of Rochester Master License Agreement 3496761v1 6 paint and debris fallout. LICENSOR reserves the right to require LICENSEE to remove all Antenna Facilities from the Structure and Leased Premises during Reconditioning work. (3) During LICENSOR’S Reconditioning Work, LICENSEE may maintain a mobile site on the Property or, after approval by LICENSOR, on any land owned or controlled by LICENSOR in the immediate area of the Property. If site will not accommodate mobile equipment, it shall be LICENSEE’S responsibility to locate auxiliary sites. (4) LICENSEE may request a modification of LICENSOR’S procedures for carrying out Reconditioning Work in order to reduce the interference with LICENSEE’S Approved Use. If LICENSOR agrees to the modification, LICENSEE shall be responsible for all incremental cost related to the modification. (c)Licensed Premises LICENSEE shall, at its own cost and expense, maintain the Antenna Facilities in good and safe condition, and in compliance with applicable fire, health, building, and other life safety codes. The LICENSEE shall obtain from the LICENSOR any and all permits required for the purposes of maintaining the installation. Applicable fees for any permits shall be borne by the LICENSEE and the LICENSEE shall be bound by the requirements of said permits. V.CONDITION OF PREMISES. Where the Premises includes one or more Poles, LICENSOR will keep and maintain the Poles in good repair as required for their Primary Use and in the ordinary course of business as its budget permits. LICENSOR makes no representation, warranty, or guarantee as to the physical, structural, or environmental condition of any Premises with regard to LICENSEE’s intended use. VI.TERM; RENTAL; ELECTRICAL. This Agreement shall be for a term of ten (10) years commencing upon the execution hereof by both Parties. Each Supplement shall be effective as of the date of execution by both Parties (the "Effective Date"). The initial term of each Supplement shall be for five (5) years, and shall commence on the first business day following the day that LICENSEE commences installation of the equipment on the Premises (the "Commencement Date"). On the Commencement Date, rental payments shall commence and be due at a total annual rental as set forth in this Agreement, to be paid in advance annually on or before January 1, to the payee designated by LICENSOR in the Supplement or to such other person, firm or place as LICENSOR may, from time to time, designate in writing at least thirty (30) days in advance of any rental payment date by notice given in accordance with Paragraph 16 below. LICENSOR and LICENSEE acknowledge and agree that the initial rental payment for each Supplement shall not actually be sent by LICENSEE until thirty (30) days after the Commencement Date. LICENSOR and LICENSEE agree that they shall acknowledge in writing the Commencement City of Rochester Master License Agreement 3496761v1 7 Date of each Supplement. To reimburse the City for its costs related to the mangement of the Premises, inclusive of Property Management, the LICENSEE shall pay to the LICENSOR a Base Rent (“Base Rent”) equal to Eight Hundred Twenty-five and NO/100 dollars ($825.00) per year for each Premises (i.e., Pole, whether new or existing) upon which the LICENSEE has installed LICENSEE’S Equipment. This Base Rent shall not include the standard Right-of-Way fee that the City might otherwise impose for installations in the ROW. In addition, LICENSEE shall pay to LICENSOR a one-time, lump-sum administrative fee for each Supplement of One Thousand Five Hundred Fifty and 00/100 Dollars ($1,550.00), which shall be paid within sixty (60) days after the execution of each Supplement by both Parties. On all Supplements with a Commencement Date other than January 1, the first year’s rent shall be prorated to the end of the year of the Commencement Date on a monthly basis. Similarly, for all Supplements that expire or otherwise terminate on a date other than December 31, the rent shall be prorated from the beginning of the year to the end of the month in which the Supplement expires or otherwise terminates. In addition, LICENSEE shall pay to LICENSOR a one-time, lump-sum administrative fee for this Agreement of Five Thousand and 00/100 Dollars ($5,000.00), which shall be paid within sixty (60) days after the execution of this Agreement by both Parties. Subsequent to the initial payment of prorated rents in the year of the Commencement Date, the Base Rent due hereunder for all subsequent years shall be paid prior to st January first (1) of each succeeding year. st Commencing January 1, 2018, and on January 1 of each subsequent year, the Base Rent shall be increased annually by two and ¼ percent (2.25%). Upon agreement of the Parties, LICENSEE may pay rent by electronic funds transfer and in such event, LICENSOR agrees to provide to LICENSEE bank routing information for such purpose upon request of LICENSEE. LICENSOR shall, at all times during the term of each Supplement, provide electrical service access within the Premises. In consideration for electrical service for each year, One Thousand Five Hundred and No/100 Dollars ($1,500.00) shall be added to the Base Rent due under each Supplement. On all Supplements with a Commencement Date other than January 1, the first year’s reimbursement shall be prorated to the end of the year of the Commencement Date on a monthly basis. LICENSOR shall be permitted to request a prospective adjustment to the $1,500.00 electrical reimbursement under the Supplement at any point during the term of the Supplement, as long as reasonable advance notice is provided to LICENSEE containing a breakdown of the added actual cost of electrical service (above the current amount paid) resulting from the electrical service that is being provided by LICENSOR. Unless the added actual cost is inaccurate, LICENSEE agrees to revise the amount of electrical reimbursement to be paid, and LICENSOR agrees to enter into an amendment to the applicable supplement to establish the revised amount, if requested by LICENSEE. Additionally, should it be necessary for the City to install new electrical facilities to a pole location in order to provide electrical service to the LICENSEE’S equipment, LICENSEE shall pay for the costs associated with that installation. City of Rochester Master License Agreement 3496761v1 8 VII.EXTENSIONS. This Agreement shall be reviewed at the end of the ten (10) year term by the LICENSOR and the LICENSEE. The Agreement may be extended an additional five (5) year term, not to exceed three (3) five year extensions, by mutual agreement between the LICENSOR and LICENSEE. Either the LICENSOR or the LICENSEE may terminate at the end of the then current term by giving written notice to the respective LICENSOR or LICENSEE of the intent by the other to terminate. Said notice shall be provided at least three (3) months prior to the end of the then current term. Each Supplement shall automatically be extended for one (1) additional five (5) year term, or until the expiration or termination of this Agreement, whichever is earlier, unless LICENSEE terminates it at the end of the then current term by giving LICENSOR written notice of the intent to terminate at least three (3) months prior to the end of the then current term. The initial term and all extensions under a Supplement shall be collectively referred to herein as the “Term." Notwithstanding anything herein, after the expiration of this Agreement, its terms and conditions shall survive and govern with respect to any remaining Supplements in effect until their expiration or termination. VIII.USE; GOVERNMENTAL APPROVALS. LICENSEE shall use the Premises for the purpose of constructing, maintaining, repairing and operating a communications facility and uses incidental thereto, in a manner consistent with each License Supplement It is understood and agreed that LICENSEE's ability to use the Premises is contingent upon its obtaining and maintaining all of the certificates, permits and other approvals (collectively the "Governmental Approvals") that may be required by any Federal, State or other governmental authorities as well as a satisfactory structural analysis, and a radio frequency analysis as stated in “ENVIRONMENTAL” below, which will permit LICENSEE use of the Premises as set forth above. LICENSOR shall cooperate with LICENSEE in its effort to obtain such approvals and shall take no action which would adversely affect the status of the Property with respect to the proposed use thereof by LICENSEE. In the event that (i) any of such applications for such Governmental Approvals should be finally rejected; (ii) any Governmental Approval issued to LICENSEE is canceled, expires, lapses, or is otherwise withdrawn or terminated by governmental authority; and (iii) LICENSEE determines that such Governmental Approvals may not be obtained in a timely manner, LICENSEE shall have the right to terminate the applicable Supplement. Notice of LICENSEE's exercise of its right to terminate shall be given to LICENSOR in accordance with the notice provisions set forth herein and shall be effective upon the mailing of such notice by LICENSEE, or upon such later date as designated by LICENSEE. All rentals paid to said termination date shall be retained by LICENSOR. Upon such termination, the applicable Supplement shall be of no further force or effect except to the extent of the representations, warranties and indemnities made by each Party to the other thereunder. Otherwise, the LICENSEE shall have no further obligations for the payment of rent to LICENSOR for the terminated Supplement. IX.INDEMNIFICATION. LICENSEE shall, to the extent permitted by law, indemnify and hold LICENSOR harmless against any claim of liability or loss from personal injury or property damage resulting City of Rochester Master License Agreement 3496761v1 9 from or arising out of the negligence or willful misconduct of the LICENSEE, its employees, contractors or agents, except to the extent such claims or damages may be due to or caused by the negligence or willful misconduct of the LICENSOR, or its employees, contractors or agents. X.INSURANCE. a.The Parties hereby waive and release any and all rights of action for negligence against the other which may hereafter arise on account of damage to the Premises or to the Property, resulting from any fire, or other casualty of the kind covered by standard fire insurance policies with extended coverage, regardless of whether or not, or in what amounts, such insurance is now or hereafter carried by the Parties, or either of them. These waivers and releases shall apply between the Parties and they shall also apply to any claims under or through either Party as a result of any asserted right of subrogation. All such policies of insurance obtained by either Party concerning the Premises or the Property shall waive the insurer's right of subrogation against the other Party. b.LICENSEE agrees that at its own cost and expense, it will maintain commercial general liability insurance with limits not less than $2,000,000 for injury to or death of one or more persons in any one occurrence and $2,000,000 for damage or destruction to property in any one occurrence. LICENSEE will provide Certificates of Insurance which specifically name LICENSOR as an additional insured. XI.LIMITATION OF LIABILITY. LICENSOR shall be not be liable to the LICENSEE, or any of its respective agents, representatives, employees for any lost revenue, lost profits, loss of technology, rights or services, incidental, punitive, indirect, special or consequential damages, loss of data, or interruption or loss of use of service, even if advised of the possibility of such damages, whether under theory of contract, tort (including negligence), strict liability or otherwise. XII.ANNUAL TERMINATION. Notwithstanding anything to the contrary contained herein, provided LICENSEE is not in default hereunder beyond applicable notice and cure periods, LICENSEE shall have the right to terminate each Supplement upon the annual anniversary of the Commencement Date provided that three (3) months prior notice is given to LICENSOR. XIII.INTERFERENCE. LICENSEE agrees to install equipment of the type and frequency which will not cause harmful interference which is measurable in accordance with then existing industry standards to any equipment of LICENSOR or other licensees of the Property which existed on the Property prior to the date this Agreement is executed by the Parties. In the event any after-installed LICENSEE's equipment causes such interference, and after LICENSOR has notified LICENSEE in writing of such interference, LICENSEE will take all steps necessary to correct and eliminate the interference, including but not limited to, at LICENSOR's option, powering down such equipment and later powering up such equipment for intermittent testing. City of Rochester Master License Agreement 3496761v1 10 XIV.REMOVAL AT END OF TERM. LICENSEE shall, upon expiration of the Term, or within ninety (90) days after any earlier termination of a Supplement, remove its equipment, conduits, fixtures and all personal property and restore the Premises to its original condition, reasonable wear and tear excepted. LICENSOR agrees and acknowledges that all of the equipment, conduits, fixtures and personal property of LICENSEE shall remain the personal property of LICENSEE and LICENSEE shall have the right to remove the same at any time during the Term. All poles, conduit and pole boxes are and shall remain property of the LICENSOR. If such time for removal causes LICENSEE to remain on the Premises after termination of the Supplement, LICENSEE shall pay rent at the then existing monthly rate or on the existing monthly pro-rata basis if based upon a longer payment term, until such time as the removal of the antenna structure, fixtures and all personal property are completed. If LICENSEE does not remove its equipment, conduits, fixtures, and all personal property within 90 days of the expiration of the Term or any earlier termination of a Supplement, LICENSOR, upon notice to LICENSEE, has the right to remove LICENSEE’S equipment, conduits, fixtures, or personal property from the Premises ("LICENSEE's Property"). LICENSOR shall store and care for LICENSEE's Property, and LICENSOR may recover its reasonable costs and expenses incurred in removing LICENSEE's Property and in storing and caring for the property. XV.QUIET ENJOYMENT AND REPRESENTATIONS. LICENSOR covenants that LICENSEE, on paying the rent and performing the covenants herein and in a Supplement, shall peaceably and quietly have, hold and enjoy the Premises. LICENSOR represents and warrants to LICENSEE as of the execution date of each Supplement, and covenants during the Term that LICENSOR is seized of good and sufficient title and interest to the Pole and Property and has full authority to enter into and execute the Supplement. LICENSOR further covenants during the Term that there are no liens, judgments or impediments of title on the Property, or affecting LICENSOR's title to the same and that there are no covenants, easements or restrictions which prevent or adversely affect the use or occupancy of the Premises by LICENSEE as set forth above. XVI.ASSIGNMENT. This Agreement and each Supplement under it may be sold, assigned or transferred by the LICENSEE without any approval or consent of the LICENSOR to the LICENSEE's principal, affiliates, subsidiaries of its principal or to any entity which acquires all or substantially all of LICENSEE's assets in the market defined by the FCC in which the Property is located by reason of a merger, acquisition or other business reorganization. As to other parties, this Agreement and each Supplement may not be sold, assigned or transferred without approval or written consent of the LICENSOR, which such consent will not be unreasonably withheld, delayed or conditioned. LICENSEE shall provide written notice of all sales, assignments or transfers within 60 days thereof. No change of stock ownership, partnership interest or control of LICENSEE or transfer upon partnership or corporate dissolution of LICENSEE shall constitute an assignment hereunder. In the event of any sale, assignment or transfer, LICENSEE shall not be relieved of any of its obligations under this Agreement or any of the Supplements whose term City of Rochester Master License Agreement 3496761v1 11 has not expired or otherwise terminated at the time of such sale, assignment or transfer. XVII.NOTICES. All notices hereunder must be in writing and shall be deemed validly given if sent by certified mail, return receipt requested or by commercial courier, provided the courier's regular business is delivery service and provided further that it guarantees delivery to the addressee by the end of the next business day following the courier's receipt from the sender, addressed as follows (or any other address that the Party to be notified may have designated to the sender by like notice): LICENSOR: City of Rochester, Minnesota City Engineer 201 4th Street SE, Room 108 Rochester, Minnesota 55904 LICENSEE: Verizon Wireless (VAW) LLC d/b/a Verizon Wireless 180 Washington Valley Road Bedminster, New Jersey 07921 Attention: Network Real Estate Notice shall be effective upon actual receipt or refusal as shown on the receipt obtained pursuant to the foregoing. XVIII.RECORDING. LICENSOR agrees to execute a Memorandum of each Supplement which LICENSEE may record with the appropriate recording officer. The date set forth in the Memorandum of License is for recording purposes only and bears no reference to commencement of either the Term or rent payments. XIX.DEFAULT. In the event there is a breach by a Party with respect to any of the provisions of this Agreement or its obligations under it, the non-breaching Party shall give the breaching Party written notice of such breach. After receipt of such written notice, the breaching Party shall have thirty (30) days in which to cure any breach, provided the breaching Party shall have such extended period as may be required beyond the thirty (30) days if the breaching Party commences the cure within the thirty (30) day period and thereafter continuously and diligently pursues the cure to completion. XX.REMEDIES. In the event of a default by either Party with respect to a material provision of this Agreement, without limiting the non-defaulting Party in the exercise of any right or remedy which the non-defaulting Party may have by reason of such default, the non- defaulting Party City of Rochester Master License Agreement 3496761v1 12 may terminate the applicable Supplement and/or pursue any remedy now or hereafter available to the non-defaulting Party under the Laws or judicial decisions of the state in which the Premises are located. Further, upon a default, the non-defaulting Party may at its option (but without obligation to do so), perform the defaulting Party's duty or obligation on the defaulting Party's behalf, including but not limited to the obtaining of reasonably required insurance policies. The costs and expenses of any such performance by the non-defaulting Party shall be due and payable by the defaulting Party upon invoice therefor. If LICENSEE undertakes any such performance on LICENSOR's behalf and LICENSOR does not pay LICENSEE the full undisputed amount within thirty (30) days of its receipt of an invoice setting forth the amount due, LICENSEE may offset the full undisputed amount due against all fees due and owing to LICENSOR under the applicable Supplement until the full undisputed amount is fully reimbursed to LICENSEE. XXI.ENVIRONMENTAL. a. Upon Request of LICENSOR, LICENSEE must obtain a radio frequency interference study carried out by an independent professional radio frequency engineer (“RF Engineer”) showing that LICENSEE’S intended use will not interfere with any existing, licensed communications facilities, as well as LICENSOR’s licensed and unlicensed communications facilities, which are located on or near the structure. The RF Engineer shall provide said evaluation no later than thirty (30) days after frequencies are provided by LICENSOR. LICENSEE shall not transmit or receive radio waves at the Property until such evaluation has been satisfactorily completed. b.LICENSEE shall hire an RF Engineer to conduct a radiation survey of the Property following LICENSEE’S initial RF transmissions on the Premises. LICENSEE shall be responsible for all costs of such survey. c.LICENSEE shall implement all measures at the transmission site required by FCC regulations, including but not limited to posting signs and markings. LICENSOR shall cooperate with and permit LICENSEE to implement all reasonable measures in order for LICENSEE to fulfill its Radio Frequency exposure obligations. LICENSOR agrees that in the event any future party causes the entire site to exceed FCC Radio Frequency radiation limits, as measured on the Premises, LICENSOR shall hold such future party liable for all such later-arising non- compliance. XXII.CASUALTY. In the event of damage by fire or other casualty to the Pole or Premises that cannot reasonably be expected to be repaired within forty-five (45) days following same or, if the Pole or Property is damaged by fire or other casualty so that such damage may reasonably be expected to disrupt LICENSEE's operations at the Premises for more than forty- five (45) days, then LICENSEE may, at any time following such fire or other casualty, provided LICENSOR has not completed the restoration required to permit LICENSEE to resume its operation at the Premises, terminate the Supplement upon fifteen (15) days prior written notice to LICENSOR. Any such notice of termination shall cause the Supplement to expire with the same force and effect as City of Rochester Master License Agreement 3496761v1 13 though the date set forth in such notice were the date originally set as the expiration date of the Supplement and the Parties shall make an appropriate adjustment, as of such termination date, with respect to payments due to the other under the Supplement. Notwithstanding the foregoing, the rent shall abate during the period of repair following such fire or other casualty in proportion to the degree to which LICENSEE's use of the Premises is impaired. XXIII.APPLICABLE LAWS. In general, the laws of Minnesota govern this Agreement. Specifically, LICENSEE shall, in respect to the condition of the Premises and at LICENSEE's sole cost and expense, comply with (a) all Laws relating solely to LICENSEE's specific and unique nature of use of the Premises; and (b) all building codes requiring modifications to the Premises due to the improvements being made by LICENSEE in the Premises. It shall be LICENSOR's obligation to comply with all Laws relating to the Pole in general, without regard to specific use (including, without limitation, modifications required to enable LICENSEE to obtain all necessary building permits). XXIV.MISCELLANEOUS. This Agreement and the Supplements that may be executed from time to time hereunder contain all agreements, promises and understandings between the LICENSOR and the LICENSEE regarding this transaction, and no oral agreement, promises or understandings shall be binding upon either the LICENSOR or the LICENSEE in any dispute, controversy or proceeding. This Agreement may not be amended or varied except in a writing signed by all Parties. This Agreement shall extend to and bind the heirs, personal representatives, successors and assigns hereto. The failure of either party to insist upon strict performance of any of the terms or conditions of this Agreement or to exercise any of its rights hereunder shall not waive such rights and such party shall have the right to enforce such rights at any time. No acceptance by LICENSOR or any of its agents of full or partial payment of any fees during the continuance of any breach of this Agreement will constitute a waiver of such breach or of the LICENSOR’s right to demand strict compliance with such term, covenant, or condition, or operate as a waiver of any requirement of this Agreement. The performance of this Agreement via each Supplement shall be governed interpreted, construed and regulated by the laws of the state in which the Premises is located without reference to its choice of law rules. By executing this Agreement, the parties acknowledge that they: (a) enter into and execute this Agreement knowingly, voluntarily and freely of their own volition with such consultation with legal counsel as they deem appropriate; (b) have had an opportunity to consult an attorney before signing this Agreement; (c) have read this Agreement, understand all of its terms and appreciate the significance of those terms; and (d) have not relied upon any representation or statement not set forth herein. Licensee shall keep the Premises free from any liens arising out of any work performed, material furnished, or obligations incurred by or for LICENSEE. LICENSEE shall inform each and every contractor and material supplier that provides any work, service, equipment, or material to LICENSEE in any way connected with LICENSEE’s use of the Premises that the Premises are City of Rochester Master License Agreement 3496761v1 14 public property and is not subject to mechanics’ liens or stop notices for equipment, other materials, or services provided to LICENSEE. If LICENSEE does not cause the release of lien of a mechanic’s lien or stop notice by any contractor, service provider, or equipment or material supplier purporting to attach to the Premises within 30 days after notice or discovery of the lien, the LICENSOR will have the right, but not the obligation, to cause same to be released by any means it deems proper, including payment of the claim giving rise to such lien. LICENSEE must reimburse the LICENSOR for all expenses it incurs in connection with any such lien (including reasonable attorneys’ fees) with ten days following receipt of the LICENSOR’s demand together with proof of LICENSOR’s expenses. This Master License Agreement creates no right to LICENSEE to receive any relocation assistance under state or federal law. Neither this Master License Agreement nor any Supplement creates a partnership or joint venture between the parties. \[Remainder of Page Intentionally Blank-Signatures on Following Page\] City of Rochester Master License Agreement 3496761v1 15 IN WITNESS WHEREOF, the Parties hereto have set their hands and affixed their respective seals the day and year first above written. LICENSOR: City of Rochester, a Minnesota municipal corporation By: Print Name: Title: Mayor Date: Attest: Print Name: Title: City Clerk Date: By: Print Name: Title: City Engineer, Rochester Public Works Date: By: Print Name: Title: General Manager, Rochester Public Utilities Date: Approved as to form: Print Name: Title: City Attorney Date: LICENSEE: Verizon Wireless (VAW) LLC d/b/a Verizon Wireless By: Name: Its: Date: City of Rochester Master License Agreement 3496761v1 16 EXHIBIT "A" LICENSE SUPPLEMENT This License Supplement ("Supplement"), is made this ___ day of ________________ between the City of Rochester, Minnesota, a Minnesota municipal corporation, with its principal offices located at 201 4th Street SE, Rochester, Minnesota 55904, ("LICENSOR"), and Verizon Wireless (VAW) LLC, a Delaware limited liability company, d/b/a Verizon Wireless, whose principal place of business is One Verizon Way, Mail Stop 4AW100, Basking Ridge, New Jersey 07920 ("LICENSEE"). 1.Master License Agreement. This Supplement is a Supplement as referenced in that certain Master License Agreement between LICENSOR and LICENSEE dated ______________, 201_, (the "Agreement"). All of the terms and conditions of the Agreement are incorporated herein by reference and made a part hereof without the necessity of repeating or attaching the Agreement. In the event of a contradiction, modification or inconsistency between the terms of the Agreement and this Supplement, the terms of this Supplement shall govern. Capitalized terms used in this Supplement shall have the same meaning described for them in the Agreement unless otherwise indicated herein. 2.Premises. The Property owned by Licensor is located at __________________________ the Premises licensed by the LICENSOR to the LICENSEE hereunder is described on Exhibit "1" attached hereto and made a part hereof. 3.Term. The Commencement Date and the Term of this Supplement shall be as set forth in the Agreement. 4.Consideration. Base Rent during the first year of this Supplement shall be ____________ per year, prorated on a monthly basis to the end of the year of the Commencement Date, and th payable to the City of Rochester at 201 4 Street S.E., Room 104, Rochester, MN 55904. Base Rent shall increase by two and 1/4 percent (2.25%) on January 1 of each year of the Term and shall be due on January 1 of each year of the Term. Base Rent due for any partial year at the end of the Term shall be prorated on a monthly basis from January 1 to the end of the Term. In consideration for electrical service, $1,500.00 shall be added to the Base Rent due under this Supplement, prorated on a monthly basis to the end of the year of the Commencement Date. In addition, LICENSEE shall pay to LICENSOR a one-time, lump-sum administrative fee of One Thousand Five Hundred Fifty and 00/100 Dollars ($1,550.00), which shall be paid within sixty (60) days after the execution of this Supplement by both Parties. 5.Site Specific Terms. (Include any site-specific terms) \[Remainder of Page Intentionally Blank- Signatures on Following Page\] City of Rochester Master License Agreement 3496761v1 17 IN WITNESS WHEREOF, the Parties hereto have set their hands and affixed their respective seal the day and year first above written. LICENSOR: By: \[EXHIBIT ONLY - NOT FOR EXECUTION\] Name:______________________________ Its:_________________________________ Date: LICENSEE: Verizon Wireless (VAW) LLC d/b/a Verizon Wireless By: \[EXHIBIT ONLY - NOT FOR EXECUTION\] Name:_______________________________ Its: _________________________________ Date: City of Rochester Master License Agreement 3496761v1 18 EXHIBIT 1 Premises (Include Map, Pole Diagram, Site Plan and Table Listing All Pole Locations) City of Rochester Master License Agreement 3496761v1 19 Exhibit "B" See Attached City of Rochester Right of Permit Application Form City of Rochester Master License Agreement 3496761v1 20