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HomeMy WebLinkAbout19-66 Resolution No. 19-66 RESOLUTION AUTHORIZING EXECUTION OF A MASTER POLE ATTACHMENT AGREEMENT WITH SMSA LIMITED PARTNERSHIP D/B/A VERIZON WIRELESS FOR INSTALLATION, MAINTENANCE AND OPERATION OF SMALL WIRELESS FACILITIES BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS,that Richard G. Kozal, City Manager,and Kimberly A. Dewis,City Clerk,be and are hereby authorized and directed to execute a Master Pole Attachment Agreement on behalf of the City of Elgin with SMSA Limited Partnership d/b/a Verizon Wireless,including all subsequent license supplements to be attached thereto,for installation,maintenance and operation of small wireless facilities,a copy of which is attached hereto and made a part hereof by reference. s/ David J. Kaptain David J. Kaptain, Mayor Presented: April 24, 2019 Adopted: April 24, 2019 Vote: Yeas: 8 Nays: 0 Attest: s/Kimberly Dewis Kimberly Dewis, City Clerk CITY OF ELGIN MASTER POLE ATTACHMENT AGREEMENT This Master Pole Attachment Agreement (Agreement) made this 24th day of April 20 19 between the City of Elgin, an Illinois municipal corporation with its principal offices located at 150 Dexter Court, Elgin, IL 60120, hereinafter designated LICENSOR and SMSA Limited Partnership d/b/a Verizon Wireless, an Illinois limited partnership, whose principal place of business is One Verizon Way, Mail Stop 4AW100, Basking Ridge, NJ 07920, hereinafter designated LICENSEE. LICENSOR and LICENSEE are at times collectively referred to hereinafter as the "Parties" or individually as the "Party." WITNESSETH WHEREAS, LICENSOR is the owner, of certain utility poles, wireless support structures, and/or real property,which are located within the geographic area of a license to provide wireless services licensed by the Federal Communications Commission(FCC)to LICENSEE; and WHEREAS,LICENSEE desires to install,maintain and operate small wireless facilities in and/or upon certain of LICENSOR's utility poles,wireless support structures and/or real property; and WHEREAS,LICENSOR and LICENSOR acknowledge that any term used in this Agreement that is defined in Section 6.94.020 of the Elgin Municipal Code, 1976, (Ordinance No. G47-18), as now or hereafter amended) shall have the meaning provided therein; and WHEREAS, LICENSOR and LICENSEE acknowledge that the terms of this Agreement are nondiscriminatory,competitively neutral and commercially reasonable. 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 small wireless facilities as hereinafter set forth; and WHEREAS,the LICENSOR and LICENSEE intend to promote the expansion of communications services in a manner consistent with the Small Wireless Facilities Deployment Act, the Illinois Cable and Video Competition Act, the Illinois Telephone Company Act, the Telecommunications Act of 1996, the Middle Class Tax Relief and Job Creation Act of 2012,the Simplified Municipal Telecommunications Tax Act, 35 ILCS 636/5-1, et. seq. and Federal Communication Commission Regulations; 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; and WHEREAS, the Parties acknowledge that different related entities may operate or conduct the business of LICENSEE in different geographic areas and as a result, each Supplement may be signed by LICENSEE affiliated entities as further described herein, as appropriate based upon the entity holding the FCC license in the subject geographic location. NOW THEREFORE,in consideration of the mutual covenants contained herein and intending to be legally bound hereby,the Parties hereto agree as follows: 1) PREMISES. Pursuant to all of the terms and conditions of this Agreement and the applicable Supplement, LICENSOR agrees to license to LICENSEE that certain space on or upon LICENSOR's utility poles, and/or wireless support structures as more fully described in each Supplement to be executed by the Parties hereinafter referred to as the "Premises", for the installation, operation, maintenance,repair and modification of small wireless facilities;together with the non-exclusive right of ingress and egress from a public right-of-way, seven (7)days a week,twenty four(24) hours a day, 1 over the Property (as defined below) and to and from the Premises for the purpose of installation, operation, maintenance, repair and modification of LICENSEE's small wireless facilities. The LICENSOR's utility poles, wireless support structures and other poles and towers are hereinafter referred to as "Pole" and the entirety of the LICENSOR's property is hereinafter referred to as "Property". 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 the right to install such utilities on,and/or under the Property and to the Premises as necessary for LICENSEE to operate its communications facility, but only from duly authorized provider of such utilities, provided the location of such utilities shall be designated by LICENSOR. 2) PERMIT APPLICATION. For each small wireless facility,LICENSEE shall submit an application to LICENSOR for permit that includes: a) Site specific structural integrity and, for LICENSOR'S utility pole or wireless support structure, make-ready analysis prepared by a structural engineer, as that term is defined in Section 4 of the Structural Engineering Practice Act of 1989; b) The location where each proposed small wireless facility or utility pole would be installed and photographs of the location and its immediate surroundings depicting the utility poles or structures on which each proposed small wireless facility would be mounted or location where utility poles or structures would be installed.This should include a depiction of the completed facility; c) Specifications and drawings prepared by a structural engineer, as that term is defined in Section 4 of the Structural Engineering Practice Act of 1989, for each proposed small wireless facility covered by the application as it is proposed to be installed; d) The equipment type, model numbers and photos for the antennas and all other wireless equipment associated with the small wireless facility; e) A proposed schedule for the installation and completion of each small wireless facility covered by the application, if approved; and f) Certification that the collocation complies with LICENSOR's Small Wireless Facilities Ordinance requirements,to the best of the applicant's knowledge. g) The application fee due. 3) APPLICATION FEES. Application fees are subject to the following requirements: a) LICENSEE shall pay an application fee of$500 for an application to collocate a small wireless facility on up to five(5)locations on existing utility poles or wireless support structures and$100 for each additional small wireless facility location addressed in a consolidated application to collocate a small wireless facility on existing utility poles or wireless support structures. b) LICENSEE shall pay an application fee of$1,000 for each small wireless facility addressed in an application that includes the installation of a new utility pole for such collocation. c) Notwithstanding any contrary provision of State law or local ordinance, applications pursuant to this Section must be accompanied by the required application fee. d) LICENSOR shall not require an application, approval, or permit, or require any fees or other charges,from LICENSEE, for: i) routine maintenance; or 2 ii) the replacement of wireless facilities with wireless facilities that are substantially similar, the same size, or smaller if LICENSEE notifies LICENSOR at least 10 days prior to the planned replacement and includes equipment specifications for the replacement of equipment consistent with the requirements of this Agreement; or iii) the installation,placement, maintenance, operation, or replacement of small wireless facilities that are suspended on cables that are strung between existing utility poles in compliance with applicable safety codes, provided this provision does not authorize such facilities to be suspended from municipal electric lines,if any. LICENSEE shall secure a permit from LICENSOR to work within rights-of-way for activities that affect traffic patterns or require lane closures. 4) REQUIREMENTS. a) LICENSEE's operation of the small wireless facilities shall not interfere with the frequencies used by a public safety agency for public safety communications.LICENSEE shall install small wireless facilities of the type and frequency that will not cause unacceptable interference with a public safety agency's communications equipment. Unacceptable interference will be determined by and measured in accordance with industry standards and the FCC's regulations addressing unacceptable interference to public safety spectrum or any other spectrum licensed by a public safety agency. If a small wireless facility causes such interference,and LICENSEE has been given written notice of the interference by the public safety agency, LICENSEE, at its own expense, shall take all reasonable steps necessary to correct and eliminate the interference, including, but not limited to, powering down the small wireless facility and later powering up the small wireless facility for intermittent testing, if necessary. The LICENSOR may terminate a permit for a small wireless facility based on such interference if LICENSEE is not making a good faith effort to remedy the problem in a manner consistent with the abatement and resolution procedures for interference with public safety spectrum established by the FCC including 47 CFR 22.970 through 47 CFR 22.973 and 47 CFR 90.672 through 47 CFR 90.675. b) LICENSEE shall not install devices on the existing utility pole or wireless support structure that extend beyond 10 feet of the poles existing height. c) LICENSEE shall install pole mounted equipment at a minimum of 8 feet from the ground. d) LICENSEE shall be limited to one(1)cabinet or other ground mounted device for ground mounted installations. e) LICENSEE shall paint antennas, mounting hardware, and other devices to match or complement the structure upon which they are being mounted. 0 INTENTIONALLY OM1'1"1'bD. g) LICENSEE shall comply with all the terms and conditions of LICENSOR's Construction of Utility Facilities in the Public Right-of-Way Ordinance as provided in Chapter 13.15 of the Elgin Municipal Code, 1976, as now or hereafter amended in regards to construction of utility facilities. h) LICENSEE shall comply with requirements that are imposed by a contract between the LICENSOR and a private property owner that concern design or construction standards applicable to utility poles and ground-mounted equipment located in the right-of-way. i) LICENSEE shall comply with applicable spacing requirements in LICENSOR's Construction of Utility Facilities in the Public Right-of-Way Ordinance as provided in Chapter 13.15 of the Elgin 3 Municipal Code, 1976, as now or hereafter amended concerning the location of ground-mounted equipment located in the right-of-way. j) LICENSEE shall comply with LICENSOR's Construction of Utility Facilities in the Public Right- of-Way Ordinance as provided in Chapter 13.15 of the Elgin Municipal Code, 1976, as now or hereafter amended concerning undergrounding requirements or determinations from the municipal officer or employee in charge of municipal utilities, in any. k) LICENSEE shall comply with LICENSOR's Construction of Utility Facilities in the Public Right- of-Way Ordinance as provided in Chapter 13.15 of the Elgin Municipal Code, 1976, as now or hereafter amended for construction and public safety in the rights-of-way,including,but not limited to, wiring and cabling requirements, grounding requirements, utility pole extension requirements, and signage limitations;and shall comply with reasonable and nondiscriminatory requirements that are consistent with PA 100-0585 and adopted by LICENSOR regulating the location, size, surface area and height of small wireless facilities, or the abandonment and removal of small wireless facilities. 1) LICENSEE shall not collocate small wireless facilities within the communication worker safety zone of the pole or the electric supply zone of the pole on LICENSOR utility poles that are part of an electric distribution or transmission system.However,the antenna and support equipment of the small wireless facility may be located in the communications space on the LICENSOR utility pole and on the top of the pole,if not otherwise unavailable,if LICENSEE complies with LICENSOR'S Electrical Code,as now or hereafter amended for work involving the top of the pole.For purposes of this subparagraph,the terms"communications space","communication worker safety zone",and "electric supply zone"have the meanings given to those terms in the National Electric Safety Code as published by the Institute of Electrical and Electronics Engineers. m) LICENSEE shall comply with all other applicable codes and requirements of law, as now or hereafter amended that concern public safety. n) LICENSEE shall install, maintain, repair and modify its small wireless facilities in safe condition and good repair and in compliance with the requirements and conditions of this Agreement. LICENSEE shall ensure that its employees, agents or contractors that perform work in connection with its small wireless facilities are adequately trained and skilled in accordance with all applicable industry and governmental standards and regulations. o) LICENSEE agrees that a small wireless facility and related equipment and appurtenances shall be a color that blends with the pole, structure or infrastructure on which it is mounted and use non- reflective materials which blend with the materials and colors of the surrounding area and structures, and that any wiring on the pole must be covered with an appropriate cover or cable shield. LICENSEE shall comply with any additional requirements concerning aesthetics,including those related to design or placement, adopted by the LICENSOR in effect at the time of an application and the applicable supplement and LICENSOR agrees that any such requirements concerning aesthetics shall be reasonable, objective and published in advance. p) LICENSOR requires the following design or concealment measures in a historic district or within 150 feet of a historic landmark: (1.) The LICENSEE shall make every effort to collocate a small wireless facility on an existing utility pole and in accordance with the following standards as set forth in this Section 4p), unless the following standards have the effect of prohibiting any LICENSEE's technology. In the event that the standards have the effect of prohibiting LICENSEE's technology,the 4 parties shall work in good faith to come up with alternative design and concealment standards. (a.) The collocation shall not increase the height of the utility pole by more than ten (10) feet. (b.) Each antenna shall be located entirely within a shroud enclosure of not more than six(6)cubic feet in volume. (c.) The diameter of the antenna or antenna enclosure should not exceed the diameter of the top of the utility pole, and to the maximum extent practical, should appear as a seamless vertical extension of the pole. In no case shall the maximum diameter of the shroud be wider than one and one half times the diameter of the top of the pole. Where maximum shroud diameter exceeds diameter of the top of the pole, the shroud shall be tapered to meet the top of the pole. (2.) The City's ornamental light fixtures and complimentary signal poles and signage poles, shall not be used as wireless support structures as a collocation is found to be incompatible with the design of such fixture or pole. The current design of the City's ornamental light fixtures is generally depicted in the plan sheet prepared by King Luminaire Company Inc., dated January 26, 1996,a copy of which is on file with the City's Community Development Department. (3.) Where existing utility poles are not available for use,a new,free-standing wireless support structure may be installed,designed to match the City's ornamental street light fixture. The new wireless support structure shall have the small cell facilities enclosed in an equipment cabinet integrated within the transformer base or within a pole mounted enclosure. The free-standing wireless support structure shall not be more than 20 feet in height. (4.) Equipment associated with a collocation should match the color of the structure to which the equipment is attached or proximate thereto. New, free-standing wireless support structures shall be the color required by the City for the installation of a new City ornamental street fixture described above. In all instances,colors shall be selected to make the small wireless facility as inconspicuous as possible. Any such design or concealment measures, including restrictions on a specific category of poles, may not have the effect of prohibiting any LICENSEE's technology. Such design and concealment measures shall not be considered a part of the small wireless facility for purposes of the size restrictions of a small wireless facility.This paragraph may not be construed to limit LICENSOR's enforcement of historic preservation in conformance with the requirements adopted pursuant to the Illinois State Agency Historic Resources Preservation Act or the National Historic Preservation Act of 1966,54 U.S.C.Section 300101 et seq.and the regulations adopted to implement those laws. 5) APPLICATION PROCESS. LICENSOR shall process applications as follows: a) An application to collocate a small wireless facility on an existing utility pole, replacement of an existing utility pole or wireless support structure owned or controlled by LICENSOR shall be processed by LICENSOR within 60 days from the date that LICENSEE submits a complete application to the LICENSOR. b) An application to collocate a small wireless facility that includes the installation of a new utility pole shall be processed by a LICENSOR within 90 days from the date that the LICENSEE submits a complete application to the LICENSOR. 5 c) LICENSOR shall approve an application unless the application does not meet the requirements of this Agreement and Chapter 6.94 of the Elgin Municipal Code, 1976,as now or hereafter amended. d) If LICENSOR determines that applicable codes, local code provisions or regulations that concern public safety,or the Requirements of Chapter 6.94 of the Elgin Municipal Code, 1976,as amended, require that the utility pole or wireless support structure be replaced before the requested collocation,approval may be conditioned on the replacement of the utility pole or wireless support structure at the cost of LICENSEE. LICENSOR must document the basis for a denial, including the specific code provisions or application conditions on which the denial was based,and send the documentation to LICENSEE on or before the day LICENSOR denies an application.LICENSEE may cure the deficiencies identified by LICENSOR and resubmit the revised application once within 30 days after notice of denial is sent to the applicant without paying an additional application fee. LICENSOR shall approve or deny the revised application within 30 days after LICENSEE resubmits the application or it is deemed approved.However,LICENSEE must notify LICENSOR in writing of its intention to proceed with the permitted activity on a deemed approved basis,which may be submitted with the resubmitted application. Any subsequent review shall be limited to the deficiencies cited in the denial. However, this revised application cure does not apply if the cure requires the review of a new location, new or different structure to be collocated upon, new antennas, or other wireless equipment associated with the small wireless facility. e) COMPLETENESS OF APPLICATION. Within 30 days after receiving an application, the LICENSOR shall determine whether the application is complete and notify the applicant. If an application is incomplete, the LICENSOR shall specifically identify the missing information. An application shall be deemed complete if the LICENSOR fails to provide notification to the applicant with 30 days after all documents,information and fees specifically enumerated in the LICENSOR's permit application form are submitted by the application to the LICENSOR. Processing deadlines are tolled from the time the LICENSOR sends the notice of incompleteness to the time the applicant provides the missing information. f) TOLLING. The time period for applications may be further tolled by the express agreement in writing by both LICENSOR and LICENSEE; or a local, State or federal disaster declaration or similar emergency that causes the delay. g) CONSOLIDATED APPLICATIONS. A LICENSEE seeking to collocate small wireless facilities within the jurisdiction of LICENSOR shall be allowed, at LICENSEE's discretion, to file a consolidated application and receive a single permit for the collocation of up to 25 small wireless facilities if the collocations each involve substantially the same type of small wireless facility and substantially the same type of structure.If an application includes multiple small wireless facilities, LICENSOR may remove small wireless facility collocations from the application and treat separately small wireless facility collocations for which incomplete information has been provided or that do not qualify for consolidated treatment or that are denied.LICENSOR may issue separate permits for each collocation that is approved in a consolidated application. 6) COLLOCATION COMPLETION DEADLINE. Collocation for which a permit is granted shall be completed within 180 days after issuance of the permit, unless LICENSOR and LICENSEE agree to extend this period or a delay is caused by make-ready work for a LICENSOR utility pole or by the lack of commercial power or backhaul availability at the site, provided LICENSEE has made a timely request within 60 days after the issuance of the permit for commercial power or backhaul services, and 6 the additional time to complete installation does not exceed 360 days after issuance of the permit. Otherwise,the permit shall be void unless LICENSOR grants an extension in writing to the LICENSEE. 7) DURATION OF PERMITS AND SUPPLEMENTS. The duration of a permit and the initial Supplement shall be for a period of 5 years, and the permit and Supplement shall be renewed for equivalent durations unless LICENSOR makes a finding that the small wireless facilities or the new or modified utility pole do not comply with the applicable codes or local code provisions or regulations in Chapter 6.94 of the Elgin Municipal Code, 1976,as now or hereafter amended. If P.A. 100-0585 is repealed as provided in Section 90 of the Act,renewals of permits shall be subject to the LICENSOR's code provisions or regulations in effect at the time of renewal. 8) EXTENSIONS. Each Supplement may be extended for additional five (5) year terms 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. 9) RENTAL.Each Supplement shall be effective as of the date of execution by both Parties(the"Effective Date"), provided, however, the initial term of each Supplement shall be for five (5) years and shall commence on the first day of the month following the day that LICENSEE commences installation of the equipment on the Premises (the "Commencement Date") at which time rental payments shall commence and be due at a total annual rental as set forth in the Supplement, to be paid in advance annually on the Commencement Date and on each anniversary of it in advance, to the LICENSOR in the Supplement (unless LESSOR otherwise designates another payee and provides notice to LICENSEE). 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 Date of each Supplement. Rental for the use of any poles pursuant to this Agreement, shall be an annual fee of$270.00 per each wireless facility which LICENSEE attaches to LICENSOR's pole. Thereafter, rent will be due at each annual anniversary of the "Commencement Date" of the applicable Supplement. 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. 10) ABANDONMENT.A small wireless facility that is not operated for a continuous period of 12 months shall be considered abandoned and the LICENSEE must remove the small wireless facility within 90 days after receipt of written notice from LICENSOR notifying LICENSEE of the abandonment. The notice shall be sent by certified or registered mail,return receipt requested, by LICENSOR to the LICENSEE at the last known address of LICENSEE.If the small wireless facility is not removed within 90 days of such notice,LICENSOR may remove or cause the removal of such facility and charge said costs to the LICENSEE. LICENSEE shall provide written notice to LICENSOR of any sale or transfer of small wireless facilities not less than 30 days prior to such transfer and said notice shall include the name and contact information of the new wireless provider. 7 11) CONDITION OF PREMISES.Where the Premises includes one or more Poles,LICENSOR covenants that it will keep the Poles in good repair as required by all federal, state, county and local laws. If the LICENSOR fails to make such repairs including maintenance within 60 days, of any notification to LICENSOR,the LICENSEE shall have the right to cease annual rental for the effected poles,but only if the poles are no longer capable of being used for the purpose originally contemplated in this Agreement or otherwise do not comply with existing law. If LICENSEE terminates, LICENSEE shall remove its small wireless facility. Termination of this Agreement shall be the LICENSEE's sole remedy. 12) MAKE READY TERMS.LICENSOR shall not require more make-ready work than required to meet applicable codes or industry standards. Make-ready work may include work needed to accommodate additional public safety communications needs that are identified in a documented and approved plan for the deployment of public safety equipment as specified and included in an existing or preliminary LICENSOR or public service agency plan.Fees for make-ready work,including any LICENSOR utility pole attachment, shall not exceed actual costs or the amount charged to communications service providers for similar work and shall not include any consultants' fees or expenses for LICENSOR utility poles that do not support aerial facilities used to provide communications services or electric service. Make-ready work, including any pole replacement, shall be completed within 60 days of written acceptance of the good-faith estimate by the LICENSOR at the LICENSEE's sole cost and expense. Any make-ready work, including pole replacements, shall be performed by the LICENSEE or its qualified contractor. 13) AERIAL FACILITIES. For LICENSOR utility poles that support aerial facilities used to provide communications services or electric services,LICENSEE shall comply with the process for make-ready work under 47 U.S.C. 224 and its implementing regulations. LICENSOR shall follow a substantially similar process for such make-ready work except to the extent that the timing requirements are otherwise addressed in Chapter 6.94 of the Elgin Municipal Code, 1976,as now or hereafter amended. The good-faith estimate of the person owning or controlling LICENSOR's utility pole for any make- ready work necessary to enable the pole to support the requested collocation shall include LICENSOR utility pole replacement, if necessary. Make-ready work for utility poles that support aerial facilities used to provide communications services or electric services may include reasonable consultants' fees and expenses. 14) NO AERIAL FACILITIES. For LICENSOR utility poles that do not support aerial facilities used to provide communications services or electric services, LICENSOR shall provide a good-faith estimate for any make-ready work necessary to enable the LICENSOR utility pole to support the requested collocation, include pole replacement, if necessary, within 90 days after receipt of a complete application.Make-ready work, including any LICENSOR utility pole replacement, shall be completed within 60 days of written acceptance of the good-faith estimate by LICENSEE at LICENSEE's sole cost and expense. Alternatively, if LICENSOR determines that applicable codes or public safety regulations require the LICENSOR's utility pole to be replaced to support the requested collocation, LICENSOR may require LICENSEE to replace LICENSOR's utility pole at LICENSEE's sole cost and expense. 15) GENERAL RESTRICTIONS. In the event LICENSOR,in its reasonable discretion deems it necessary to remove, relocate or replace a Pole, LICENSOR shall notify LICENSEE at least one hundred eighty (180)days prior of the need to remove or relocate its small wireless facility.In such event,LICENSOR shall provide options for alternative locations for LICENSEE relocation of equipment which shall be in a mutually agreeable location ("Alternative Premises"). LICENSEE shall be solely responsible for 8 all costs related to the relocation of its small wireless facility to the Alternative Premises. In the event that a suitable Alternative Premises cannot be identified, LICENSEE may terminate the applicable Supplement. In the event of an emergency, which for purposes of this Agreement shall be considered any imminent threat to health, safety and welfare of the public, LICENSOR must provide as much notice as reasonably practical under the circumstances. LICENSEE may terminate this Agreement by giving written notice to the other party specifying the date of termination, such notice to be given not less than one hundred eighty (180) days prior to the date specified therein. 16) ELECTRICAL. LICENSEE shall be permitted to connect its equipment to necessary electrical and telephone service, at LICENSEE's expense. LICENSEE shall attempt to coordinate with utility companies to provide separate service to LICENSEE's equipment for LICENSEE use. In the event that LICENSEE can obtain separate electrical service with a separate meter measuring usage, the LICENSEE shall pay the utility directly for its power consumption, if billed directly by the utility. In the event that separate electrical service is not possible or practical under the circumstances, LICENSEE may use existing service, at LICENSEE's expense, upon the reasonable approval of LICENSOR. In the event that LICENSEE uses existing utility service at an individual Premises,the Parties agree to either: (i) attempt to have a sub-meter installed, at LICENSEE's expense, which shall monitor LICENSEE's utility usage (with a reading and subsequent bill for usage delivered to LICENSEE by either the applicable utility company or LICENSOR); or(ii) provide for an additional fee in the applicable Supplement which shall cover LICENSEE's utility usage. The Parties agree to reflect power usage and measurement issues in each applicable Supplement. 17) TEMPORARY POWER. LICENSEE shall be permitted at any time during the Term of each Supplement, to install, maintain and/or provide access to and use of, as necessary (during any power interruption at the Premises), a temporary power source, and all related equipment and appurtenances within the Premises, or elsewhere on the Property in such locations as reasonably approved by LICENSOR. LICENSEE shall be permitted to connect the temporary power source to its equipment on the Premises in areas and manner approved by LICENSOR. 18) USE; GOVERNMENTAL APPROVALS. LICENSEE shall use the Premises for the purpose of constructing, maintaining, repairing and operating small wireless facilities and uses incidental thereto. LICENSEE shall have the right to replace, repair and modify equipment, antennas and/or conduits or any portion thereof and the frequencies over which the equipment operates, in conformance with the original Supplement. It is understood and agreed that LICENSEE's ability to use the Premises is contingent upon its obtaining after the execution date of each Supplement all of the certificates,permits and other approvals(collectively the "Governmental Approvals")that may be required by any Federal, State or Local authorities as well as a satisfactory building structural analysis which will permit LICENSEE use of the Premises as set forth above. 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 in Paragraph 23 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. Notwithstanding anything to the 9 contrary in this Paragraph, LICENSEE shall continue to be liable for all rental payments to the LICENSOR until all equipment is removed from the Property. 19) INSURANCE. a) Required Coverages and Limits. LICENSEE shall carry and maintain, at LICENSEE'S own cost and expense, the following insurance insuring the LICENSEE as named insured and naming the LICENSOR as an additional insured on the commercial general liability policy and provide certification and documentation of inclusion of LICENSOR in a commercial general liability policy: (1) Commercial general liability insurance, including premises-operations, explosion, collapse,and underground hazard(commonly referred to as"X","C", and"U"coverages) and products-completed operations coverage with limits not less than: Five million dollars ($5,000,000.00) for bodily injury(or death) to each person; Five million dollars ($5,000,000.00) for property damage resulting from any one accident; and Five million dollars ($5,000,000.00) for all other types of liability; (2) Automobile liability for owned,non-owned and hired vehicles with a combined single limit of three million dollars ($3,000,000.00) for personal injury and property damage for each accident; (3) Workers' compensation with statutory limits; (4) Employer's liability insurance with limits of not less than one million dollars ($1,000,000.00)per employee and per accident; and (5) Property insurance for LICENSEE's property replacement cost against all risks. b) Excess Or Umbrella Policies. The coverages required by this section may be in any combination of primary, excess, and umbrella policies. Any excess or umbrella policy must provide excess coverage over underlying insurance on a following form basis such that when any loss covered by the primary policy exceeds the limits under the primary policy, the excess or umbrella policy becomes effective to cover such loss. c) Copies Required. The LICENSEE shall provide certificates of insurance evidencing the insurance required by this section to the LICENSOR within ten (10) days following receipt of a written request therefor from the LICENSOR. d) Maintenance and Renewal of Required Coverages. The insurance policies required by this section shall contain the following endorsement: It is hereby understood and agreed that this policy may not be canceled nor the intention not to renew be stated until thirty (30) days after receipt by the City of Elgin, by registered mail or certified mail, return receipt requested, or a written notice addressed to the City Manager of such intent to cancel or not to renew. 10 Within ten(10)days after receipt by the city of said notice,and in no event later than ten(10)days prior to said cancellation,the LICENSEE shall obtain and furnish to the LICENSOR evidence of replacement insurance policies meeting the requirements of this section. e) Self-Insurance. A LICENSEE may self-insure all or a portion of the insurance coverage and limit requirements by subsection a of this section. A LICENSEE that self-insures is not required,to the extent of such self-insurance,to comply with the requirement for the naming of additional insureds under subsection a of this section, or the requirements of subsections b, c and d of this section. A LICENSEE that elects to self-insure shall provide to the LICENSOR evidence sufficient to demonstrate its financial ability to self-insure the insurance coverage and limit requirements required under subsection a of this section,such as evidence that the LICENSEE is a"private self- insurer"under the workers' compensation act. 0 Effect of Insurance and Self-Insurance On Utility's Liability. The legal liability of the LICENSEE to the LICENSOR and any person for any of the matters that are the subject of the insurance policies or self-insurance required by this section shall not be limited by such insurance policies or self- insurance or by the recovery of any amounts thereunder. g) Insurance Companies. All insurance provided pursuant to this section shall be effected under valid and enforceable policies, issued by insurers legally able to conduct business with the licensee in the state of Illinois. All insurance carriers and surplus line carriers shall be rated"A-"or better and of a class size"X"or higher by A.M. Best Company. 20) INDEMNIFICATION.LICENSEE shall indemnify and hold LICENSOR harmless against any and all liability or loss from personal injury or property damage resulting from or arising out of,in whole or in part, the use or occupancy of LICENSOR's improvements or right-of-way associated with such improvements by LICENSEE or its employees, agents, or contractors arising out of the rights and privileges granted under this Agreement and PA 100-0585.LICENSEE has no obligation to indemnify or hold harmless against any liabilities and losses as may be due to or caused by the sole negligence of LICENSOR or its employees or agents.LICENSEE hereby further waives any claims that LICENSEE may have against the LICENSOR with respect to consequential, incidental, or special damages, however caused,based on the theory of liability. 21) 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 and casualty damage not caused by LICENSEE 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, whether or not said items are considered fixtures and attachments to real property under applicable laws. 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. 22) RIGHTS UPON SALE. Should LICENSOR, at any time during the Term of any Supplement decide to sell or transfer all or any part of the Property such sale or grant of an easement or interest therein shall be under and subject to the Supplement and any such purchaser or transferee shall recognize LICENSEE's rights hereunder and under the terms of the Supplement. 11 23) 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 Elgin Attention: City Engineer 1900 Holmes Road Elgin,IL 60123 Copy to: - City of Elgin Attention: Corporation Counsel 150 Dexter Court Elgin,IL 60120 LICENSEE: Chicago SMSA Limited Partnership d/b/a Verizon Wireless 180 Washington Valley Road Bedminster,NJ 07921 Attention Network—Real Estate Copy to: Chicago SMSA Limited Partnership d/b/a Verizon Wireless 1515 E. Woodfield Rd. 10th Floor Schaumburg, IL 60173 Either Party may change the addressee and/or location for the giving of notice to it by providing a thirty(30)days' prior written notice to the other Party. Notice shall be effective upon actual receipt or refusal as shown on the receipt obtained pursuant to the foregoing. 24) 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 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. 25) 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 30 days in 12 which to cure any breach,provided the breaching Party shall have such extended period, not to exceed 90 days, as may be required beyond the 30 days if the breaching Party commences the cure within the 30-day period and thereafter continuously and diligently pursues to cure to completion. The non- breaching Party may maintain any action or affect any remedies for default against the breaching Party subsequent to the 30-day cure period, as potentially extended to 90 days based on circumstances. 26) REMEDIES. In the event of a default by either Party with respect to a material provision of this Agreement, without limiting, other than by the specific terms of this Agreement, 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 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 of Illinois.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 such performance by the non-defaulting Party shall be due and payable by the defaulting Party upon invoice therefor. 27) APPLICABLE LAWS. During the Term, LICENSOR shall maintain the Property and the Pole in compliance with all applicable laws, rules, regulations, ordinances, directives, covenants, easements, zoning and land use regulations, and restrictions of record, permits, building codes, (collectively "Laws"). 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). 28) BOND. LICENSEE shall deposit with LICENSOR on one occasion prior to the commencement of the first Supplement a bond in a form reasonably acceptable to LICENSOR in the amount of$10,000 per small wireless facility to guarantee the safe and efficient removal of any equipment from any Premises subject to this Agreement,which equipment remains more than 30 days after rental payment has ceased and Licensee has failed to remove the equipment. The funds may also be used to restore the premises to original condition,if LICENSEE fails to do so. 29) 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. The performance of this Agreement via each Supplement shall be governed interpreted,construed and regulated by the laws of the state of Illinois. 30) EXECUTION IN COUNTERPARTS. This Agreement and any Supplements may be executed in multiple counterparts,including by counterpart facsimiles or scanned email counterpart signature,each of which shall be deemed an original,and all such counterparts once assembled together shall constitute one integrated instrument. 13 31)AUTHORIZATION. LICENSEE certifies and warrants that it has the authority to enter into this Agreement. 32) CHANGE IN LAW: RIGHTS UNDER EXISTING LAWS. If, after the effective date of this Agreement,the rights or obligations of either Party are materially amended or preempted by changes in Laws,including but not limited to,the maximum amount of authorized application fees and annual rental fees,the Parties shall amend this Agreement and the Supplements to reflect and comply with the applicable changes in Laws. This Agreement is not intended to in any way limit or waive either Party's present or future rights under applicable state and federal law. 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 Elgin,an Illinois Municipal Corporation BY: Name: Air • Title: Richard G. Kozel, City Manager Date: April 24, 2019 AT E LICENSEE: City Clerk /II.414 BY: Name: ift James R. Martin Title: IC ,, _ , . , •. Date M F:\Legal Dept\Agreement\City of Elgin Master Pole Attachment Agreement-SMSA Limited-Verizon-3-12-19.docx 14 EXHIBIT "A" LICENSE SUPPLEMENT This License Supplement (Supplement), is made this day of , 20_, between the City of Elgin, an Illinois municipal corporation, whose principal place of business is 150 Dexter Court, Elgin, IL 60120 (LICENSOR), and , whose principal place of business is (LICENSEE). 1. Master License Agreement. This Supplement is a Supplement as referenced in that certain Master License Agreement between the City of Elgin and , dated ,20 ,(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 (note—Supplement should govern because there may be some site specific items that might have to be addressed at an individual location which might create a conflict with Agreement terms) 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 Paragraph 7 of the Agreement. 4. Consideration. Rent under this Supplement shall be$270.00 per year, payable to LICENSOR at . Thereafter, rent will be due at each annual anniversary of the "Commencement Date" of this Supplement. LESSEE shall obtain electrical service and provide for a separate meter and billing from the applicable utility provider. 5. Site Specific Terms.(Include any site-specific terms) IN WITNESS WHEREOF, the Parties hereto have set their hands and affixed their respective seal the day and year first above written. LICENSOR City of Elgin,an Illinois Municipal Corporation BY: Name: Title: Date: LICENSEE 15 91 :aTpu :0121! :auieN :fig EXHIBIT 1 Premises (see attached site plans) 17