HomeMy WebLinkAboutRes 44-20 10/20/2020 The execution of a master license agreement for the collocation of small wireless facilities located within municipal righs-of-wayA RESOLUTION AUTHORIZING THE EXECUTION OF A MASTER LICENSE AGREEMENT FOR
THE COLLOCATION OF SMALL WIRELESS FACILITIES LOCATED WITHIN MUNICIPAL
RIGHTS-OF-WAY.
WHEREAS, the Village of Mount Prospect, an Illinois municipal corporation and Chicago SMSA
Limited Partnership d/b/a Verizon Wireless, an Illinois limited partnership, are desirous of entering
into a Master License Agreement; and
WHEREAS, establishment of the Master License Agreement being the subject of this Resolution,
for Small Wireless Facilities mounted on utility poles or wireless support structures owned by the
Village of Mount Prospect in public rights -of -ways, will properly facilitate and manage the
deployment of Small Wireless Facilities with the Village's jurisdiction; and
WHEREAS, regulation of the deployment of Small Wireless Facilities can be accomplished through
the use of site-specific permitting, managed and controlled by the Village; and
WHEREAS, Verizon Wireless desires to install, maintain, and operate Small Wireless Facilities in
and/or upon certain of the Village of Mount Prospect's utility poles or wireless support structures.
NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND BOARD OF TRUSTEES OF THE
VILLAGE OF MOUNT PROSPECT, COOK COUNTY, ILLINOIS ACTING IN THE EXERCISE OF
THEIR HOME RULE POWERS:
SECTION ONE: The Board of Trustees of the Village of Mount Prospect do hereby authorize the
execution of a Master License Agreement for the Collocation of Small Wireless Facilities, a copy of
which is attached hereto and hereby made a part hereof as Exhibit "A".
SECTION TWO: That this Resolution shall be in full force and effect from and after its passage
and approval in the manner provided by law.
AYES: Grossi, Hatzis, Hoefert, Rogers, Saccotelli, Zadel
NAYS: None
ABSENT: None
PASSED and APPROVED this 20th day of October, 2020
MASTER LICENSE AGREEMENT FOR THE COLLOCATION OF SMALL WIRELESS
FACILITIES LOCATED WITHIN THE MOUNT PROSPECT MUNICIPAL RIGHTS OF
WAY
This MASTER LICENSE AGREEMENT ("Agreement") is made and entered into
by and between the Village of Mount Prospect, an Illinois municipal corporation
("Licensor"), and Chicago SMSA Limited Partnership d/b/a Verizon Wireless, an Illinois
limited partnership whose principal place of business is One Verizon Way, Mail Stop
4AW1 00, Basking Ridge, New Jersey 07920, ("Licensee"). Licensor and Licensee are at
times collectively referred to hereinafter as the "Parties" or individually as the "Party."
WHEREAS, the Licensor intends to promote the expansion of communications
services in a manner consistent with, for example, 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, and Federal
Communication Commission Regulations; and
WHEREAS, Public Act 100-585, known as the Small Wireless Facilities
Deployment Act, approved by the Governor on April 12, 2018, with an effective date of
June 1, 2018, acts to impose certain additional requirements on municipalities, including
the Licensor, regarding the permitting, construction, deployment, regulation, operation,
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maintenance, repair and removal of certain defined Small Wireless Facilities both within
public rights-of-way and in other locations within the jurisdiction of the Licensor; and
WHEREAS, the Small Wireless Facilities Deployment Act and Chapter 9, Article
VIIIA of the Village's Code of Ordinances, provide that Small Wireless Facilities attached
to a utility pole or wireless support structure owned by the Licensor within the public rights-
of-way are subject to an attachment agreement; and
WHEREAS, the Corporate Authorities of the Licensor have determined that the
establishment of an attachment agreement for Small Wireless Facilities mounted on utility
poles or wireless support structures owned by Licensor in public Right -of -Ways, will
properly facilitate and manage the deployment of Small Wireless Facilities within the
Licensor's jurisdiction; and
WHEREAS, regulation of the deployment of said Small Wireless Facilities can be
accomplished through the use of site-specific permitting, managed and controlled by staff,
but only after a Licensee agrees to the terms of this Agreement; and
WHEREAS, the Licensee desires to install, maintain, and operate Small Wireless
Facilities in and/or upon certain of Licensor's utility poles or wireless support structures.
NOW THEREFORE, based upon the consideration recited herein and the granting
of Site Specific Permits, the Licensee and the Licensor agree to abide by the terms and
conditions of this Agreement as follows:
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1.0 Recitals. The recitals set forth above are incorporated herein and made
part of this Agreement as representing the intent of the Parties, and as substantive
covenants and conditions.
2.0 Pefinitions.1,
2.1 The capitalized terms used herein, unless specifically defined within Section
2.2 of this Agreement, are the terms defined in the Small Wireless Facilities Deployment
Act ("Act") and Chapter 9, Article VIIIA of the Village's Code of Ordinances, as amended.
2.2 The following definitions are specific to this Agreement and are not found in
the Act.
"Act" shall mean the Small Wireless Facilities Deployment Act.
"Agreement" or "License Agreement" shall mean this Agreement.
"Annual License Fee" means the annual rate described in Section 6.2 of this
Agreement.
"CFIR" means the Code of Federal Regulations.
"Entity" means any natural individual, firm, trust, estate, partnership, association,
joint stock company, joint venture, corporation, limited liability company, unit of
local government, a receiver, trustee, guardian or other representative appointed
by order of court, or any other legally recognized organization, whether for-profit
or not-for-profit. The Licensor shall not be considered a "Person" or "Entity" for
purposes of this Agreement.
"Effective Date" means the date this Agreement is executed by the last Party to
sign following approval by the Licensor's Village Board.
"Law(s)" means any applicable statute, administrative or judicial act, decision,
charter, code, constitution, law, opinion of a court of competent jurisdiction, court
order, ordinance, policy, regulation, including procedures and the conditions of
certificates as prescribed by regulation, rule, schedule, specification, rates and
tariffs as established in statute, rules, or regulation, or other requirement of the
Licensor or any other unit of government or agency of a unit of government having
joint or separate jurisdiction over the Licensee, now or hereafter in effect, during
the term of this Agreement. The term Laws includes the Licensor's Right of Way
Ordinance, Chapter 9, Articles Vill of the Code of Ordinances and Small Wireless
Facilities Ordinance, Chapter 9, Article VIIIA of the Code of Ordinances.
"Licensor Representative" means the then -current person at the Licensor that
oversees administration of this Agreement, or his/her designee.
"Permit Drawing and Specifications" means documents submitted by a
Licensee, in conformance with the requirements of the Licensor, for a Site -Specific
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Permit Application which depict the design, construction, installation, and
maintenance of any Small Wireless Facility.
"Site -Specific Location" means a location which qualifies, under this Agreement,
for the placement of, or which contains, Small Wireless Facilities allowed under a
Site -Specific Permit.
"Site -Specific Permit or Permit" means a non-exclusive permit granted by the
Licensor allowing the installation of Small Wireless Facilities at a Site -Specific
Location.
"Site -Specific Permit Application" means the application for a permit for the
installation of Small Wireless Facilities at a Site -Specific Location.
"Unauthorized Communication Site" means the installation of a Small Wireless
Facility or Utility Pole within the corporate limits of the Licensor or the Licensor's
Comprehensive Planning Area without a permit or any Work not specifically
authorized by the Corporate Authorities of the Licensor or in conformance with
applicable law. An Unauthorized Communication Site shall not include any site
where Licensee has, in good faith, performed Work as specifically authorized by
an issued Site Specific Permit, applicable law, or otherwise authorized by the
Corporate Authorities of Licensor.
"Unauthorized Installation Charge" means the penalty payable by Licensee to
Licensor under this Agreement for an Unauthorized Communication Site.
"Work" means all design, construction, restoration, maintenance, removal, repair,
relocation, or modification of any Small Wireless Facility, utility pole or wireless
support structure installed by or on behalf of the Licensee.
3.0. Term.
3.1. Initial and Extension Terms. This Agreement shall apply to all Small
Wireless Facilities proposed, permitted and installed at Site -Specific Locations on Utility
Poles or Wireless Support Structures owned by the Licensor pursuant to Chapter 9,
Article VIIIA of the Code of Ordinances. The initial term of this Agreement shall be 5 years
("Initial Term") commencing on the Effective Date, unless earlier terminated in
accordance with this Agreement. The term of this Agreement shall be extended for an
additional 5 year period (each, an "Extension Term") commencing on the expiration of the
initial term, provided that:
3.1.1. Licensee has not provided the Licensor with a written notice of its intent to
terminate the Agreement at the end of the initial term without renewal; and
3.1-2. The Licensee is in compliance with the provisions of this Agreement and
applicable Laws; and
3.1.3. There has not been any change in the Law that materially affects the
provisions of this Agreement or its enforceability
3.1.4. The Licensor or Licensee has not otherwise terminated this Agreement in
accordance with its provisions.
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3.1.5. The Act has not been repealed or been found to be unconstitutional by a
court of law; and
3.1-6. The Act did not sunset on June 1, 2021.
Up to two (2) additional five (5) year extension terms (the "additional extension
terms") may be entered into by written mutual agreement of the Parties following the initial
extension term, subject to 3. 1. 1 through 3.1.6 above, except that the notice fro m Licensee
as specified in 3.1.1 will propose an additional extension term, and any such additional
extension term shall be subject to the applicable Village code provisions or regulations in
effect at the time of renewal. The Parties acknowledge that in the event this Agreement
is not renewed by mutual agreement of the Parties for a first or second additional
extension term, the Parties shall enter into a new agreement applicable to site-specific
permits applied for after the termination date, subject to the applicable Village Code
provisions or regulations in effect at that time.
3.2 New Agreement/Holdover. A Licensee may enter into a new License
Agreement with the Licensor no later than six (6) months before the expiration of the
Agreement (or any extensions or additions thereof), based upon the License Agreement
then in effect or in accordance with such other contract rates, terms and conditions, or
ordinances that may be adopted by the Licensor from time to time. If upon expiration of
the Agreement or any extension term or additional extension terms, the Parties fail to
negotiate the renewal of a new License Agreement, and the Licensee fails to comply with
Section 3.3, the Licensee shall be deemed to holdover and shall otherwise be liable to
perform its obligations of the terms and conditions of the License Agreement as well as
payment of the holdover amount set forth in Section 7.1 of this Agreement. No holdover
shall exceed six (6) months.
3.3 Non -Renewal. If the Site Specific Permit is expired or is terminated, then
the Licensee, at its option, shall do one of the following, except to the extent prohibited
by applicable Laws:
3.3.1 Remove the Licensee's Small Wireless Facilities at its sole cost and expense
within sixty (60) days of the expiration date of the applicable Site Specific
Permit. If the Licensee fails to remove the Small Wireless Facilities by said
date, the Licensor may in its discretion remove said facility pursuant to
Section 7.2 herein; or
3.3.2 Without cost or charge to the Licensor, abandon the Licensee's Small
Wireless Facilities in place, but only if the Licensor first approves the
proposed abandonment, in writing; including conditions applicable to the
abandonment. In the case of an approved abandonment in place, the
Licensor may at its discretion remove said Small Wireless Facility pursuant
to Section 7.2 herein; or
3.3.3 Sell the Licensee's Small Wireless Facility to a qualified third -party subject
to the Licensor's prior written approval; which will not be unreasonably
withheld.
3.3.4 Upon the occurrence of any circumstance set forth in this Section 3.3, this
Agreement shall be deemed terminated except as to the indemnification
and hold harmless provisions which shall survive until all statutes of
limitations and repose applicable to a casualty occurring during the license
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term have expired. If a Small Wireless Facility has time remaining on its Site
Specific Permit term, then the provisions of this Agreement remain in place
during the remaining time on those Site Specific Permits but there shall be
no right to an extension unless a new License Agreement is negotiated.
3.4 Termination. Except as otherwise provided herein, either party may
terminate this Agreement for cause, as defined herein, upon thirty (30) days written notice
sent by the non -breaching party to other party. In the event of a termination for cause, the
either party may exercise its legal rights and/or equitable remedies either under this
Agreement or by any other means that may be provided by law or equity, including the
right, without limitation to recover any uncollected license or permit application fees that
would be due and payable by the Licensee to the Licensor if this Agreement had not been
terminated during the initial or extension term.
3.4.1 A termination for cause means 1) The Licensee fails to cure a material
default of this Agreement within thirty (30) days after it receives the Licensor's notice of
default, or, if the default can be cured and such cure reasonably requires more than thirty
(30) days to achieve, fails to commence and thereafter diligently continue such cure to
completion within a reasonable period of time; or 2) Any agency exercising jurisdiction
over the Licensee has by final order that is no longer subject to appeal, terminated or
otherwise revoked the Licensee's approval, authorization, certification or license to
provide the Wireless Services or Small Wireless Facilities; 3) The Licensee installs or
causes to be installed five (5) or more Unauthorized Communication Sites during any five
(5) year term. However, cooperation with other agencies/jurisdictions to comply with their
laws and procedures (as set forth in Section 4.1.2 "Compliance with Laws" and Section
8.1 "Provision of Communication Services") shall not be an event of default or basis for
termination, provided no installation is done before Licensor authorization. A termination
or revocation that affects specific sites only will result in the termination of the applicable
Site -Specific Permit(s) only, while a general termination or revocation affecting Licensee's
ability to provide Wireless Services or Small Wireless Facilities in general will result in a
termination of the entire Agreement.
3.4.2 Removal upon Termination for Cause. Upon establishment of
termination for cause and after the expiration of the time period set out in Section 3.4.1
above, Licensor may terminate such Site Specific Permits that are the cause of the
termination for cause as set forth in Section 3.4.1. If the Licensee has failed within ninety
(90) days from the Effective Date of termination for cause to remove or cause removal of
the Licensee's Small Wireless Facilities which are subject to the termination for cause,
the Licensor may at its discretion remove said Facility pursuant to Section 7 herein.
3.5 Changes in the Law. The Parties acknowledge that Communications
Services, and Wireless Services and the law associated with communications services
and wireless services is evolving at the Federal, State and local level. If during the initial
term or extension term the Laws are superseded, preempted, adopted, amended or
repealed in a manner that is binding on the Parties and that requires the Parties to alter
existing Agreements, the Parties shall negotiate an amendment to this Agreement to the
extent necessary to comply with any new Law affecting existing agreements.
4.1 Grant of License. Subject to the terms and conditions of this Agreement,
the Licensor grants to the Licensee and, the Licensee accepts from the Licensor, a non-
exclusive license to submit Site -Specific Permit Applications to install, and, upon
installation pursuant to a valid Site -Specific Permit, to use, operate, maintain, repair,
remove, reattach, reinstall, relocate, and replace Licensee's Small Wireless Facilities
pursuant to said permit. All rights and obligations of the Licensee under this Agreement
shall be exercised by the Licensee at its sole cost and expense unless otherwise agreed
to in writing by the Parties or as otherwise required by the Laws.
4.1.1. Site -Specific Permit. The Licensee shall prior to performing any Work to
install a Small Wireless Facility, submit a Site -Specific Permit Application to the Licensor,
and receive from the Licensor a Site -Specific Permit to occupy the Site -Specific Location
with the Small Wireless Facilities pursuant to Chapter 9, Article VIIIA of the Village Code
of Ordinances.
4.1.2. Compliance with Laws. The installation, use, operation, maintenance,
repair, removal, reattachment, reinstallation, relocation, and replacement of any Small
Wireless Facilities shall comply with all Laws.
4.1.3. License Only. Nothing in this Agreement or in a Site -Specific Permit shall
be deemed to grant, convey, create, or vest in the Licensee a property right or perpetual
interest in the Utility Poles, Wireless Support Structures, land or the rights-of-way of the
Licensor including, without limitation, any fee interest, leasehold interest, easement, or
franchise right. Any interpretation of this license or a Site -Specific Permit by a Court,
which would purport to create any fee, leasehold, easement, or franchise interest in the
Licensee shall, twenty-four (24) hours after such determination, result in the Licensee's
forfeiture of any and all rights under this Agreement or any Site -Specific Permit.
4.1.4 No Warranty. Neither the Licensor, nor any existing easement holder,
franchisee, or other licensee shall be liable to the Licensee for failure of the Licensor or
the others to secure legal authority from a grantor of an easement affecting the installation
of Small Wireless Facilities. It shall be the obligation of the Licensee to ascertain any legal
right held by any servient estate of an easement affecting the proposed or existing Small
Wireless Facilities and to resolve those issues with the owner of the servient estate.
4.2. Immunities. Nothing in this Agreement shall be interpreted to override,
compromise or waive any of the Licensor's statutory or common-law privileges or
immunities which are all specifically reserved. There are no third -party beneficiaries of
this Agreement.
4.3. Authorized Use. The Licensee shall use Licensee's Small Wireless
Facilities for the sole purpose of providing Communications Services and Wireless
Services and may only install, use, operate, design, construct, restore, maintain, remove,
repair, relocate, or modify Licensee's Small Wireless Facilities as authorized by the Site -
Specific Permit and/or applicable Laws.
4.4. Control of Facilities. Licensee's Wireless Service lProviders may own the
equipment installed in the Small Wireless Facilities, but in no event shall Licensee allow
any other Entity to control the Licensee's Small Wireless Facilities or any portion thereof
for any purpose not directly related to the Licensee's provision of Communications
Services or Wireless Services. Licensee shall have no authority to assign, sell or transfer
a Site -Specific Permit without the written consent of the Licensor, unless such
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assignment, sale or transfer is made to an affiliate of the Licensee. The Licensee is at all
times liable and responsible for the obligations of this Agreement. Additionally, the
Licensee shall require its Wireless Service Providers to acknowledge this Agreement and
that any and all Wireless Service Providers shall be responsible for complying with the
terms of this Agreement and any Site Specific Permits in the event the Licensee fails to
do so.
4.5. Condition of Premises. As a material part of the consideration for this
Agreement, Licensee takes and accepts the Licensor's Utility Poles, Wireless Support
Structures and Rights -of -Way "as is" in the condition in which the Licensee finds them,
with any and all latent and patent defects and with no express or implied warranties by
the Licensor of merchantability, fitness, suitability, or fitness for any particular purpose.
The Licensee shall have the right to inspect the Utility Poles, Wireless Support Structures,
and Rights -of -Way prior to installing the Small Wireless Facilities. The Licensor will be
responsible for the regular maintenance of the Utility Poles, Wireless Support Structures
and Rights -of -Way and will keep the Utility Poles, Wireless Support Structures and
Rights -of -Way in good repair as required by all Laws. The Licensee shall be responsible
for repairing any damage to the Rights -of -Way, Wireless Support Structures, or Utility
Poles that is disturbed or damaged as a result of the installation, construction,
reconstruction, use, operation, maintenance, repair, removal, reattaching, reinstallation,
relocation or replacement of the Small Wireless Facilities. The Licensor shall have the
right to temporarily remove or require the Licensee to temporarily remove the Small
Wireless Facilities in order to maintain the Utility Poles, Wireless Support Structures and
Rights -of -Way, at the Licensee's sole cost and expense. In the event that the Small
Wireless Facilities are temporarily removed in accordance with the preceding sentence
and such removal shall last longer than seven (7) days, Licensor will work in good faith
to identify an alternative location for Licensee to temporarily locate its Small Wireless
Facilities in order to minimize interruption to Licensee's business which, subject to the
approval of the Licensor, may include the installation of temporary poles or other methods
which are necessary for Licensee to continue providing Wireless Services.
4.6 Interruption of Service. The Licensor shall not be liable to the Licensee,
its customers, or anyone else for the interruption of service of the Licensee or any
interference with the operation of the Licensee's Small Wireless Facilities.
Notwithstanding the foregoing, Licensor shall use its best efforts to avoid the authorization
of any other Entity to install equipment of the type and frequency that will cause harmful
interference, measured in accordance with then -existing industry standards, to
Licensee's then -existing Small Wireless Facilities unless the interruption is for public
safety purposes, local government, or other public purpose. In the event that Licensee
has a good faith belief that such interference is 'Occurring, the parties shall work in good
faith to minimize or cease the interference in a commercially reasonable manner.
4.7 Electrical. Licensee shall be permitted to connect Small Wireless Facilities
to necessary electrical and telephone service, at Licensee's sole cost and expense.
Licensee shall attempt to coordinate with applicable utility companies to provide separate
service to Licensee's Small Wireless Facilities for Licensee's 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
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the utility. In the event that separate electrical service is not possible or practical under
the circumstances, Licensee may use existing ser~ ice, at Licensee's sole cost and
expense, upon the reasonable approval of Licensor. In the event that Licensee uses
existing utility service at an individual Utility Pole or Wireless Support Structure, the
Parties agree to either: i) attempt to have a submeter 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 Site Specific Permit which shall cover Licensee's
utility usage. The Parties agree to reflect power usage and measurement issues in each
applicable Site Specific Permit.
Licensee shall be permitted at any time during the Term of each Site Specific
Permit, to install, maintain and/or provide access to and use of, as necessary (during any
power interruption at the Utility Pole), a temporary power source, and all related
equipment and appurtenances within the Utility Pole, or elsewhere on the Utility Pole in
such locations as reasonably approved by Licensor. Licensee shall have the right to
install conduits connecting the temporary power source and related appurtenances to the
Utility Pole. In the event such conduits affect the life expectancy of the Utility Pole, an
additional fee that reflects the replacement cost of the Utility Pole may be assessed by
Licensor after providing written notice to Licensee.
4.8 General Restrictions.
4.8.1. Removal, Relocation or Replacement of Utility Pole. In the event
Licensor, in its reasonable discretion deems it necessary to remove, relocate or replace
a Utility 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 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 Site Specific Permit. 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
of the removal, relocation or replacement of a Utility Pole as reasonably practical under
the circumstances.
4.8-2. Damage to Utility Pole. In circumstances where the Utility Pole is
damaged, the Licensor shall have the right to remove the Utility Pole and transport the
Small Wireless Facilities to the Licensor's facilities. The Licensor shall notify the Licensee
of the damaged Utility Pole as soon as reasonably practical. The Licensor shall have
discretion to replace the Utility Pole, as set forth in Section 4.8.1. The Licensee shall be
solely responsible for all costs related to the removal and/or reinstallation of its Small
Wireless Facilities. If the utility pole needs to be replaced, and the utility pole to be
replaced is or was a non- standard design or type in order to accommodate the Licensee's
Small Wireless Facility, and recovery from the liable party who damaged the pole is not
available, the Licensee shall be solely responsible for the incremental costs of the
replacement utility pole over the cost of a standard pole.
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4.8.3. Right -of -Way Only. This Agreement shall only apply to Site -Specific
Permits for Small Wireless Facilities located on Licensor Utility Poles and Wireless
Support Structures that are located entirely within the Right -of -Way.
5.1. Rights and Obligations after Installation of Small Wireless Facilities.
Except as set forth in this Section or as allowed by applicable Laws, should Licensee wish
to modify the form, fit, or function of any Small Wireless Facility during the term of this
Agreement, Licensee may request, in writing, the Licensor's approval and authorization
to add, attach, install, move, repair, replace, or otherwise alter or change the Licensee's
Small Wireless Facilities in a manner consistent with this Agreement and with the Act and
Chapter 9, Article VIIIA of the Village's Code of Ordinances. All written requests for this
purpose shall be filed with the Licensor's Representative, who may revise the Site -
Specific Permit for such Work subject to appropriate reasonable conditions, or require a
new permit. All Work on the Utility Poles shall comply with the applicable Laws, including
the Municipal Code.
5.1.1. Routine Maintenance The Licensee shall not be required to obtain approval
or a permit to perform routine maintenance. However, the Licensee shall notify the
Licensor, in writing, of any routine maintenance at least forty-eight (48) in advance of the
maintenance. Written notice of routine maintenance shall be provided as set forth in
Section 13.19, by phone to the Director of Public Works at 847-870-5640 or by e-mail
transmission to sdorsey@mountprospect.org.].
5.1.2. Replacement of Small Wireless Facilities If the Licensee is seeking to
replace a Small Wireless Facility with a Small Wireless Facility that is substantially similar
and the same size, or smaller, than the existing Small Wireless Facility, the Licensee does
not need to receive written authority or any additional permits from the Licensor. At least
ten (10) days prior to the planned replacement, the Licensee shall notify the Licensor of
the planned replacement and provide the Licensor with (i) the equipment specifications
for the replacement of equipment, which shall include the equipment type and model
numbers for the antennas and all other wireless equipment associated with the
replacement Small Wireless Facility; and (ii) information sufficient to establish that the
replacement Small Wireless Facility is substantially similar. The Licensee shall provide
all information necessary and requested by the Licensor to establish to the Licensor that
the replacement Small Wireless Facility is substantially similar.
5.1.3. Micro Wireless Facilities The installation, placement, maintenance,
operation, or replacement of Micro Wireless Facilities, as defined in the Act, that are
suspended on cables that are strung between existing utility poles in compliance with
applicable safety codes do not require an application or authorization from the Licensor.
However, the Licensee shall still notify the Licensor, in writing, of any work on Micro
Wireless Facilities under this subsection at least forty-eight (48) in advance of that work.
5.1.4 Traffic Plan If any of the work performed in this Section involves activities
that affect traffic patterns or require lane closures, the Licensor may require the Licensee
to obtain a Right -of -Way permit.
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5.2. Due Care. Licensee shall at all times use due care to insure that no
damage, beyond reasonable wear and tear, is caused to Utility Poles, Wireless Support
Structures, Rights -of -Way, or Licensor Facilities, conduits, or any other portion of the
Licensor's or others' property, including but not limited to: ground surfaces, landscaping,
paved surfaces, swales, sewer drainage features, fibers, wires, cables, poles and/or
conduits lawfully located on or about Utility Poles, or other physical structures on which
the Licensee intends to attach and/or install Licensee's Small Wireless Facilities. Any
damage which is caused by the Licensee shall be reported to the Licensor's emergency
contact listed in Section 13.19 herein and in writing to the affected Party within forty-eight
(48) hours of the damage. Licensee shall install, use, operate, maintain, repair, remove,
reattach, reinstall, relocate, and replace its Small Wireless Facilities in safe condition and
good repair and in compliance with the requirements and conditions of this Agreement,
and applicable Laws. 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.
5.3. Identification of Facilities. Licensee shall identify its Small Wireless
Facilities, including, without limitation, its fibers, wires, and cables and equipment
enclosures with appropriate durable visible identification tags that describe the Licensee's
name, number, color, identification, code, size, and manufacture of Licensee's Small
Wireless Facilities. Licensee shall consult with the Licensor Representative to make
certain that such identification tags are specific to the Licensee so as not to be confused
with other Entities lawfully within the area of Licensee's Small Wireless Facilities.
Licensee shall comply with J.U.L.I.E protocol and shall have sole responsibility to locate
Licensee's Small Wireless Facilities. Upon a change in ownership or control of Small
Wireless Facilities, the new Entity shall provide updated identification tags within fourteen
(14) days.
5.4. Interference. Licensee agrees that its license is subject at all times to the
Licensor's right to use its Utility Poles and Wireless Support Structures as set forth in this
Agreement. The Licensee's operation of Small Wireless Facilities shall not interfere with
the frequencies used by a public safety agency for public safety communications, both
present and future frequencies. 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. In the event any after -installed Licensee's Small Wireless Facilities
cause such interference, and after Licensor has notified Licensee in writing of such
interference, Licensee, at its sole expense, will take all commercially reasonable steps
necessary to correct and eliminate the interference, including but not limited to, powering
down such Small Wireless Facilities and later powering up such Small Wireless Facilities
for intermittent testing. The Licensor may terminate a permit for a Small Wireless Facility
based on such interference if the Licensee is not making a good faith effort to remedy the
problem. With respect to interference with public safety frequencies, good faith effort must
be action 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. The Parties
acknowledge that there will not be an adequate remedy at law for noncompliance with the
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provisions of this Paragraph and therefore, either Party shall have the right to equitable
remedies, such as, without limitation, injunctive relief and specific performance.
5.4.1 Subject to the provisions of Section 5.4, Licensee agrees to use its best
efforts to minimize any interference caused by its Small Wireless Facilities to any of
Licensor's or other Entity's equipment which has been installed prior to Licensee's install
of its Small Wireless Facility. In the event that Licensor has a good faith belief that
Licensee's Small Wireless Facilities are causing interference in accordance with this
Section 5.4-1, the parties shall work in good faith to minimize or cease the interference in
a commercially reasonable manner.
5.1. Make Ready Work:
6.1.1. For Licensor's Utility Poles that support aerial facilities used to provide
communications services or electric service, the Licensee shall comply with the process
for make-ready work under 47 U.S.C. 224 and its implementing regulations. The Licensee
shall be responsible for all costs associated with make-ready work. The good faith
estimate of the municipality for any make-ready work necessary to enable the Utility Pole
to support the requested collocation shall include municipality pole replacement, if
necessary.
6.1.2. For Licensor's Utility Poles that do not support aerial facilities used to
provide communications services or electric service, the Licensor shall prove a good -faith
estimate for any make-ready work necessary to enable the Utility Pole to support the
requested collocation, including pole replacement, if necessary, and shall provide the
good faith estimate within ninety (90) days after receipt of a complete application. The
Licensee shall be responsible for all costs associated with make-ready work.
6.1.3. Fees for make-ready work, including any Licensor Utility Pole replacement,
shall not exceed actual costs or the amount charged to Communications Providers for
similar work. Make-ready work can include fees and expenses incurred for review by
consultants, unless the Licensor's Utility Pole does not support aerial facilities used to
provide communications services or electric service.
6.1.4 Make-ready work may include work needed to accommodate additional
public safety communications needs that are associated with the deployment of public
safety equipment for attachment within one (1) year of the application.
6.2. Annual License Fee. The Licensees shall pay, on an annual basis, an
Annual License Fee for each Site -Specific Location in the amount of $200 or an amount
allowed by applicable law and set forth in the Village's Small Wireless Facilities
Ordinance. In establishing The Annual License Fee, Licensor shall comply with applicable
Laws.
6.3 Timing of Annual License Fee Payments. Upon the final inspection of a
Site -Specific Permit the Licensee shall pay the full Annual License Fee for that Site -
Specific Location. Annual License Fees, for all Site -Specific Locations, shall thereafter
be due and payable by the Licensee on January 1st of each year.
6.4 Late Payment Interest. Any Annual License Fees not paid within 60 days
of due date will be assessed a rate of 10% per annum from the due date.
6.5. Failuro to Pay. Licensee's failure to pay any costs or Annual License Fees
under this Agreement within thirty (30) days of the due date shall constitute a material
default. Licensee's obligation to pay all previously incurred costs, fees, and Right -of -Way
fees shall survive the expiration or earlier termination of this Agreement. If a failure to pay
has not been cured within thirty (30) days of the due date, the Licensee shall remove
Licensee's Small Wireless Facilities within the timeframe specified in Section 3.3.1.
Licensee's failure to remove within the time required will authorize the Licensor at its
discretion to remove said facility pursuant to Section 7 herein.
6.6 Application Process. Licensee shall submit applications for Site Specific
Permits in accordance with the requirements of applicable Laws, including the Village's
Code of Ordinances. Licensor shall process requests for the collocation of Small Wireless
Facilities or Site Specific Permits in accordance with the requirements of applicable Laws,
including the Village's Code of Ordinances.
7.0 Removal of Small Wireless Facilities
7.1. Licensee's Obligation to Remove. The Licensee has an obligation to
remove its Small Wireless Facilities, and restore the Utility Pole, Wireless Support
Structures, and Rights -of -Ways to their original condition, reasonable wear and tear and
casualty damage excepted. This obligation arises: (1) upon the termination or expiration
of any Site Specific Permit; (2) when the Licensee is no longer using a Small Wireless
Facility to provide Wireless Services; or (3) when the Licensee abandons the Small
Wireless Facilities. All of the equipment and Small Wireless Facilities of the 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 Licensee remains on the Property
after termination of the Site Specific Permit for a period of less than six months, Licensee
shall pay a holdover fee it the amount of $250 per year until such time as the removal of
the Small Wireless Facilities is completed. If Licensee remains on the Property for more
than six months after termination of the Site Specific Permit, Licensee shall pay a holdover
fee in the amount of $250 per month until such time as the removal of the Small Wireless
Facilities is completed. The Licensor shall have the authority at any time to order and
require Licensee to remove and abate any Small Wireless Facilities that are in violation
of applicable Laws.
7.2. Licensor's Authority to Remove Small Wireless Facilities. In the event that
the Licensee fails to remove a Small Wireless Facility within ninety (90) days from the
termination or expiration of a Site Specific Permit, or from the date of written notice from
the Licensor demanding the removal for abandonment as specified in the Village's Small
Wireless Facilities Ordinance, the Licensor shall have the right to take such action as it
deems necessary to remove the Small Wireless Facility, including the authority to engage
the services of an independent contractor or through any code provisions regarding the
abatement of nuisances. All notices of removal or abandonment shall be sent by certified
or registered mail, return receipt requested, by the Licensor to the Licensee at the last
known address of the Licensee. The Licensee shall pay the Licensor, within thirty (30)
I
days the Licensor I s actual and reasonable cost of removal of the Small Wireless Facility
and for any other losses or damages incurred by the Licensor by such undertaking. This
obligation shall survive termination or expiration of this Agreement. Alternatively, pursuant
to the requirements of the Municipal Code, the Licensor may use any bond or letter of
credit deposited by the Licensee to cover the cost of any removal. If the Licensor removes
the Licensee's Small Wireless Facility in accordance with this Agreement, the Licensor
shall, where practical, take possession of and hold the Small Wireless Facility at its
facilities for a period up to 30 days and notify Licensee that it may take possession of
such Small Wireless Facilities from Licensor's facilities at any time prior to the expiration
of that time period. The Licensor shall have no obligation to pay or reimburse the Licensee
for any Small Wireless Facility removed by the Licensor in accordance with this
Agreement.
8.0. Installation and Replacement of Small Wireless Facilities,
8.1. Provision of Communication Service. This Agreement shall include new
types of Small Wireless Facilities that may evolve or be adopted using wireless
technologies. Licensee shall, at its expense, comply with all Laws in connection with the
use of the Rights -of -Ways or other property. For Site -Specific Locations in the Right of
Way, said locations may be used by Licensee, seven (7) days a week, twenty-four (24)
hours a day, only for the installation, use, operation, maintenance, repair, removal,
reattachment, reinstallation, relocation, and replacement of Small Wireless Facilities
approved by a Site -Specific Permit by the Licensor from time to time for Communication
Services or Wireless Services, and not for any other purpose whatsoever.
8.2. Ongoing Inspections. The Licensor shall have the ongoing right to inspect
any Site -Specific Location or Work related to the Licensee's Small Wireless Facilities as
it deems appropriate.
8.3. Unauthorized Installation Charge. No action or inaction by the Licensor
with respect to unauthorized use of any Right -of -Way or other Licensor property shall be
deemed to be a ratification of an unauthorized use or waiver of any provision of this
Agreement.
8.4. Removal. Licensee may in its discretion remove its Small Wireless
Facilities at its own cost and expense provided that it has given the Licensor
Representative notice of the removal and has been issued any necessary permits to do
so. Upon removal, Licensee shall not be responsible for the payment of any future Annual
License Fee, however, the Licensee shall not be entitled to any refund for License Fees
previously paid.
8.5. Failure to Restore or Remove. The Licensor may, in accordance with the
terms of this Agreement or as otherwise authorized by law, at the Licensee's sole cost
and expense, remove Small Wireless Facilities or cause their removal without liability on
the part of the Licensor, and the Licensee shall pay the Licensor, within thirty (30) days,
the Licensor's actual and reasonable cost of removal and for any other losses or damages
422007111111111�1.1
incurred by the Licensor by such undertaking. This obligation shall survive termination or
expiration of this Agreement.
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9.1. Licensee Indemnification. The Licensee agrees to defend, indemnify and
hold the Licensor and its elected and appointed officials and officers, employees, agents
and representatives (the "Indemnified Parties") harmless from and against any and all
injuries, claims, demands, judgments, damages, liability, losses and expenses, including
reasonable attorney's fees and costs of suit or defense from personal injury, bodily injury
or property damage resulting from or arising out of, in whole or in part, the use or
occupancy of the Licensor's Utility Poles or Rights -of -Way associated with such
improvements by the Licensee or its employees, agents, contractors, subcontractors,
arising out of the rights and privileges granted under applicable Laws or this Agreement;
provided, however that the 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
the Licensor or its employees or agents.
9.2. Waiver. The waiver by a Party of any breach or default or violation of any
provision, by any other party, shall not be deemed to be a waiver or continuing waiver by
that Party of any subsequent breach or default or violation of the same or any other
provision.
9.3. Risk of Loss. The Licensee shall assume all responsibility for promptly
reimbursing the Licensor, or its franchisees, for any of their losses or expenses
associated with damages caused by the acts or omissions of the Licensee, its employees,
agents and/or contractors or subcontractors in the Rights -of -Way, including without
limitation to any poles or conduits, sewers, gas, water, electric lines, fiber or cable
communication lines, caused by the installation, use, operation, maintenance, repair,
removal, reattachment, reinstallation, relocation, and replacement of the Licensee's Small
Wireless Facilities. The Licensee shall provide immediate notification to the Licensor or
the affected Entity upon the occurrence of any such damage.
9.4. Limitation. Notwithstanding the foregoing, neither Party shall have any
liability to the other under this Agreement or otherwise for special, punitive or
consequential damages, including without limitation, damages for lost profits or business
interruption.
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10.1. The Licensee's financial integrity is of interest to the Licensor; therefore, the
Licensee shall obtain and maintain in full force and effect for the duration of this
Agreement, and any extension hereof, at the Licensee's sole expense, insurance
coverage, which will satisfactorily insure the Licensee and, where appropriate, the
Licensor against claims and liabilities which may arise out of the installation, use,
operation, maintenance, repair, removal, reattachment, reinstallation, relocation, and
replacement of Small Wireless Facilities. Such insurance shall be issued by companies
licensed to do business in the State of Illinois, with an A.M. Best's rating of no less than
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A -VII, and subject to the approval by the Licensor, not to be unreasonably withheld or
delayed, unless the Licensee is self-insured.
10-1.1 At all times during the period in which a wireless provider's facilities are
located on village infrastructure, improvements or in Right -of -Way, the wireless provider
shall, at its own sole cost and expense, carry the following insurance coverages:
(A) Property insurance for its property's replacement cost against all risks;
(B) Workers' compensation insurance within statutory limits as required by law
and Employer's Liability coverage in the amount of $1,000,000 for each
accident/disease/policy limit; and
(C) (1) Commercial general liability insurance with respect to its activities on
the village infrastructure, improvements or rights-of-way, including coverage for bodily
injury and property damage, with limits of: Ten million dollars ($10,000,000) per
occurrence for bodily injury and property damage and Ten million dollars ($101000,000)
general aggregate.
(2) The wireless provider shall include the Indemnified Parties as
additional insureds on a primary and non-contributory basis, as their interest may appear
under this Agreement and applicable Laws, on the commercial general liability policy and
shall provide the Licensor with certificates of insurance on ACORD form or its equivalent,
and blanket additional insured endorsements in a form reasonably acceptable to the
Licensor, as proof of inclusion of the Indemnified Parties in a commercial general liability
policy prior to the collocation of any Small Wireless Facility, and shall keep updated
certificates and blanket additional insured endorsements proof of inclusion on file with the
village at all times that the provider maintains Small Wireless Facilities within the village.
(D) A wireless provider may self -insure all or a portion of the insurance coverage
and limits required by the village. A wireless provider that self -insures is not required, to
the extent of the self-insurance, to comply with the requirement that the village be named
an additional insured. A wireless provider that self -insures shall provide to the village
evidence sufficient to demonstrate its financial ability to self -insure the insurance limits
required by the village.
10.1.2. The insurance required shall be maintained by the Licensee throughout the
terms of the Agreement, and such other period of time during which the Licensee is
operating without a license hereunder, or is engaged in the removal of its Small Wireless
Facilities.
10.1.3. Not later than thirty (30) days prior to any cancellation of the insurance
required, the Licensee shall obtain and furnish to the Licensor certificates of insurance
evidencing replacement of the required insurance policies. Licensee shall also provide
the Licensor with thirty (30) days prior written notice of any such cancellation.
11.1. Licensee's Duty to Maintain Current Emergency Contacts. Licensee
will maintain the emergency contact information current at all times with the Licensor
Representative.
12.1. Representations and Warranties of the Parties. As of the Effective Date,
each Party represents and warrants to the other Party that:
4220071-11
12.1.1. It is duly organized, validly existing, and in good standing under the laws
of the jurisdiction of its formation;
12.1.2. The execution, delivery, and performance of this Agreement and its exhibits
are within its powers, have been duly authorized by all legally necessary
actions, and do not violate any of its governing documents, any contracts
with any joint owners to which it is a party, or any Law;
12.1.3. This Agreement and its exhibits and any other document executed and/or
delivered in accordance with this Agreement constitute a legally valid and
binding obligation, enforceable against it in accordance with its covenants,
terms, conditions, and provisions;
12.1-4. It has not filed and it is not now contemplating the filing for bankruptcy
protection and, to its knowledge, no action is threatened against it which
would result in it being or becoming bankrupt;
12.1.5. There is not, to its knowledge, pending or threatened against it or any of its
affiliates, any legal or administrative proceedings that could materially and
adversely affect its ability to perform its obligations under this Agreement;
and
12-1.6. No "event of default" or potential "event of default" with respect to it has
occurred or is continuing and no such event or circumstance would occur
as a result of its entering into or performing its obligations under this
Agreement.
12.2 Representations and Warranties of the Licensee. The Licensee
represents and warrants to the Licensor that:
12.2-1. The Licensee has all approvals, authorizations, certifications, licenses, and
franchises required by the State of Illinois, the FCC and/or any other agency
to provide the Communications Service and Wireless Service; and
12.2.2. The Licensee is not aware of any facts or circumstances that would call
into doubt the continuing validity of any such approvals, authorizations,
certifications, licenses, or franchises; and
12.2.3. There is not pending or, to the Licensee's knowledge, threatened against
the Licensee or its parent corporation or any of its subsidiaries or affiliates,
any legal or administrative proceedings that could materially and adversely
affect the validity of such licenses, authorizations, or franchises; and
12.2.4. All Work to be performed by the Licensee pursuant to this Agreement will
be (i) performed in a good and workmanlike manner, consistent with any
Permit specifications, manufacturer's specifications, prevailing industry
standards, applicable Laws, and the provisions of this Agreement, and (ii)
that it will be free from defects.
13.0. Miscellaneous Provisions,
13.1. No Bar to Other Relief. Nothing contained in this Agreement will prevent
or otherwise restrict either Party from pursuing its rights at law or in equity, including
injunctive relief and specific performance, in the event of a default and a material breach
by the other Party.
13.2. Immediate Relief. Except for challenges to the validity of this Agreement
or portions hereof which are specifically waived and released, nothing in this Agreement
shall be deemed or construed to prohibit a Party from obtaining judicial, regulatory, or
other relief necessary in order to preserve the status quo or prevent the loss or violation
of that Party's rights.
13.3. Amendments. This Agreement may not be amended except pursuant to a
written instrument signed by the Parties.
13.4. Assignment. Except as provided in Sections 13.4.1 and 13.4.2, Licensee
may not directly or indirectly assign, transfer, or convey to another Entity this Agreement
or any Site Specific Permit, or any of the rights and obligations of the Licensee established
by this Agreement or any Site Specific Permit without written approval of the Licensor.
Any assignment or transfer of this Agreement or Site Specific Permit shall be void, and
the Licensor may terminate this Agreement or Site Specific Permit if the Licensee
attempts to assign or transfer this Agreement or Site Specific Permit without compliance
hereof.
13.4.1. The Licensee may assign or transfer this Agreement or a Site Specific
Permit to its parent corporation or any subsidiary corporation or affiliate or
successor in interest, provided that such parent corporation, subsidiary
corporation, affiliate, or successor in interest first agrees, in writing, to be
fully bound by this Agreement or the Site Specific Permit and the exhibits
and to jointly assume all of the Licensee's obligations and liabilities
hereunder, whether arising before or after the date of such assignment or
transfer. The Licensor Representative shall be notified of assignment or
transfer.
13.4.2. If Licensee sells or otherwise transfers all or substantially all of its assets,
then, upon the provision of written approval from the Licensor, which will not
be unreasonably withheld, Licensee may assign or otherwise transfer this
Agreement or Site Specific Permit(s) and the rights and obligations
hereunder without the approval of the Licensor so long as the transferee is
not statutorily unfit to hold such a license and first agrees, in writing, to be
fully bound by this Agreement and Site Specific Permit(s) and the exhibits
and to jointly assume all of the Licensee's obligations and liabilities
hereunder, whether arising before or after the date of such assignment or
transfer. For the avoidance of doubt, if Licensee owns the underlying land
at any site specific location, the mere sale or other transfer of the land shall
not affect this License.
13.5. Sublicensing. The parties agree and acknowledge that, notwithstanding
anything in this Agreement to the contrary, certain Small Wireless Facilities deployed by
Licensee in the rights-of-way pursuant to this Agreement may be owned and/or operated
by Licensee's third -party Wireless Service Providers and installed and maintained by
Licensee pursuant to license agreements between Licensee and such Wireless Service
Providers. Such Small Wireless Facilities shall be treated as Licensee's facilities for all
purposes under this Agreement provided that (i) Licensee remains responsible and liable
for all performance obligations under the Agreement with respect to such facilities, (ii) the
Licensor's sole point of contact regarding such facilities shall be Licensee, and (iii)
4220071
Licensee shall remain responsible and liable for the removal and relocation of such
facilities per the Agreement. However, all Wireless Service Providers shall agree, in
writing, to be fully bound by this Agreement and to jointly assume all of the Licensee's
obligations and liabilities hereunder. Licensee shall not grant such Wireless Service
Providers rights of access to such facilities. The Licensor acknowledges that Licensee
may include third party -owned equipment in its initial installation of Small Wireless
Facilities and that such inclusion shall not be considered a sublicense to a third party
subject to the provisions of this section.
13.6. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together shall constitute
one and the same instrument.
13.7. Exhibits. As of the Effective Date, all exhibits referred to in this Agreement
and any addenda, attachments, and schedules which may, from time to time, be referred
to and duly executed amendments to this Agreement, are by such reference incorporated
in this Agreement and shall be deemed a part hereof as if fully set forth herein.
13.8. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Illinois without regard to its conflict of laws rules
or principles.
13.9. Headings. The headings hereof are inserted for convenience of reference
only, are not a part hereof, and shall have no effect on the construction or interpretation
hereof.
13.10. Independent Contractor. Each Party to this Agreement acts as an
independent contractor and not as an employee of the other Party. Nothing in this
Agreement shall be construed to establish a partnership, joint venture, group, pool,
syndicate, or agency relationship between the Licensor and the Licensee.
13.11. Resolving Conflicting Provisions. To the extent the provisions and any
other authorizations and approvals required to be obtained by the Licensee from the
Licensor are in conflict, the provisions of the Agreement, authorizations and approvals
which impose(s) the higher or greater legal duty or obligation upon the Licensee shall
take precedence.
13.12. Rules of Construction. Each Party and its counsel have reviewed this
Agreement. Accordingly, the rule of construction to the effect that any ambiguities are to
be resolved against the drafting Party shall not be employed in the construction and
interpretation hereof.
13-13. severability. If a court of competent jurisdiction finds or rules that a
provision of this Agreement or any amendment thereto is void or unenforceable, the
unaffected provisions of this Agreement and any amendments thereto will remain in full
force and effect.
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13.14. Successors and Assigns. This Agreement shall be binding upon and inure
to the benefit of the successors and permitted assignees of the Parties and approved
successors.
13.15. Time of Action. For the purposes hereof, the time in which an act is to be
performed shall be computed by excluding the first day and including the last. If the time
in which an act is to be performed falls on a Saturday, Sunday, or any day observed as
an official holiday by the Licensor, the time for performance shall be extended to the
following Business Day.
13.16. Jurisdiction and Venue. Exclusive jurisdiction and venue for any and all
disputes related in any manner to this Agreement, regardless of their basis or nature,
shall be in the Circuit Court of Cook County.
13.17. No Recording. Licensee shall not record this Agreement or any other
document referred to herein without the written consent of the Licensor.
13.18. Entire Agreement. This Agreement contains the entire understanding
between the Parties with respect to the subject matter herein. There are no
representations, warranties, agreements, or understandings (whether oral or written)
between the Parties relating to the subject matter hereof which are not fully expressed
herein.
13.19. Notices. All notices which shall or may be given pursuant to this
Agreement shall be given, in writing, and shall be deemed validly given if delivered or
sent by certified mail, return receipt requested, or by commercial courier, provided the
commercial courier's regular business is delivery service, and addressed, as follows:
LICENSOR: Sean Dorsey
Director of Public Works
Village of Mount Prospect Public Works
1700 W. Central Rd.
Mount Prospect, IL 60056
Copy to: Klein Thorpe & Jenkins, Ltd.
20 N. Wacker Drive, Suite 1660
Chicago, Illinois 60606-2903
Any notice to be sent to the Village Manager or Corporation Counsel shall be sent to the
same address referred to above.
Licensee:
Chicago SMSA Limited Partnership d/b/a Verizon Wireless
180 Washington Valley Road
Bedminster, NJ 07921
Attention Network - Real Estate
24/7 EMERGENCY CONTACT: Phone Number: (800) 621-2622
4220071
Chicago SMSA Limited Partnership d/b/a Verizon Wireless
1515 E Woodfield Rd
10th Floor
Schaumburg, IL 60173
Attention Network - Legal
13.20. No Waiver. A waiver by the Licensor of any breach of one or more of the
terms of this Agreement shall not constitute a waiver of any subsequent or other breach
of the same or other term, nor shall the failure on the part of the Licensor to require exact,
full, and complete compliance with the terms contained herein be construed as changing
the terms of this Agreement or as stopping the Licensor from enforcing full compliance
with the provisions herein. No delay, failure, or omission of the Licensor to exercise any
right, power, privilege, or option arising from any breach shall impair any right, power,
privilege, or option, or be construed as a waiver or acquiescence of such breach or as a
relinquishment of any right. No right, power, privilege, or option of the Licensor shall be
construed as being exhausted by the exercise thereof in one or more of the instances.
The rights, powers, privileges, and options given to the Licensor under this Agreement
and by law shall be cumulative.
13.21 Casualty. In the event of damage by fire or other casualty to a Utility Pole
or Wireless Support Structure on which Small Wireless Facilities are located that cannot
reasonably be expected to be repaired within forty-five (45) days following same or, if the
Utility Pole or Wireless Support Structure Premises 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 Site Specific
Permit upon fifteen (15) days prior written notice to Licensor. Any such notice of
termination shall cause the Site Specific Permit 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 Site Specific Permit and the Parties shall make an appropriate adjustment, as
of such termination date, with respect to payments due to the other under the Site Specific
Permit. 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.
13.22 Applicable Laws. During the term of this Agreement, Licensor shall use and
maintain the Utility Poles, Wireless Support Structures, and Rights -of -Way in compliance
with all Laws. Licensee shall, in respect to the condition of the Small Wireless Facilities
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 Small Wireless Facilities; and (b) all
codes requiring modifications to the Small Wireless Facilities due to the improvements
being made by Licensee to the Small Wireless Facilities.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the
dates set forth below with their respective signatures, to be effective as of the date of the
signature of the last Party to sign.
LICENSEE:
Chicago SMSA Limited Partnership d/b/a Verizon Wireless, By Cellco Partnership, Its
(.3eneral Partner
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LICENSOR
Village of Mount Prospect, Illinoil
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