Mobilitie/Network Technology IA LLC_Master Licensing Agreement (MLA) Copyrighted
April 17, 2017
City of Dubuque Consent Items # 19.
ITEM TITLE: Master Licensing Agreement (MLA)with Mobilitie/Network
Technology IA LLC
SUMMARY: City Manager recommending approval of a Master
Licensing Agreement with Mobilitie/Network Technology IA
LLC, which represents one portion of a comprehensive
strategy to improve the connectivity of Dubuque through
new broadband and wireless investments.
SUGGESTED DISPOSITION: Suggested Disposition: Receive and File; Approve
ATTACHMENTS:
Description Type
Master Licensing Agreement with Mobilitie/Network City Manager Memo
Technology IA LLC-MVMMemo
Memo to City Manager Mobi lite Network Technology Staff Memo
LLC Master License Agreement
MASTER LICENSE AGREEMENT CITY OF DUBUQUE Supporting Documentation
AND MOBILITIE-NETWORK TECHNOLOGY LLC
Exhibit 1 Part A Communication Site Application Supporting Documentation
Exhibit 1 Part B Supplemental License Form for Supporting Documentation
Communication System Installation
Exhibit 2 Permitto Work in the Public Right of Way Supporting Documentation
Fees
Exhibit 3 Insurance Schedule B Supporting Documentation
THE CITY OF Dubuque
DUB E i"
Masterpiece on the Mississippi 2007.2012.2013
TO: The Honorable Mayor and City Council Members
FROM: Michael C. Van Milligen, City Manager
SUBJECT: Master Licensing Agreement (MLA) with Mobilitie/Network Technology IA
LLC
DATE: April 11, 2017
Information Services Manager Chris Kohlmann, Civil Engineer Dave Ness and
Sustainable Innovations Consultant David Lyons recommend City Council approval of a
Master Licensing Agreement with Mobilitie/Network Technology IA LLC, which
represents one portion of a comprehensive strategy to improve the connectivity of
Dubuque through new broadband and wireless investments.
This agreement does not require any costs or expenses to the City of Dubuque. It does
contemplate lease revenue for any new poles placed in the public right-of-way (not to
exceed $2,000 annually per site), for equipment attached to any City-owned pole or for
any fiber resource of the City used to support a site (at a rate determined by the City). It
is unknown what level of revenue to expect until final design and deployment of
infrastructure is determined.
I concur with the recommendation and respectfully request Mayor and City Council
approval.
ZyL^1
Mic ael C. Van Milligen
MCVM:jh
Attachment
cc: Crenna Brumwell, City Attorney
Barry Lindahl, Senior Counsel
Cindy Steinhauser, Assistant City Manager
Teri Goodmann, Assistant City Manager
Chris Kohlmann, Information Services Manager
David Ness, Civil Engineer
Gus Psihoyos, City Engineer
John Klostermann, Public Works Director
David Lyons, Sustainable Innovations Consultant
2
THE CITY OF Dubuque
DUB E *Amenca CRY
11111.1
Masterpiece on the Mississippi 2007.2012.2013
TO: Michael C. Van Milligen, City Manager
FROM: David Ness, Civil Engineer— City of Dubuque
Chris Kohlmann, IS Manager — City of Dubuque
David Lyons, Sustainable Innovations Consultant — GDDC
SUBJECT: Master Licensing Agreement (MLA) with Mobilitie/Network Technology IA
LLC
DATE: April 11 , 2017
INTRODUCTION
The City of Dubuque has embarked upon an aggressive program to accelerate the
deployment of broadband internet and fiber in Dubuque. That program, focusing on
public/private partnerships to reduce time and costs, has been successful in
accelerating deployment of fiber, increasing the number of carriers actively installing
new fiber and competing in Dubuque and bringing new broadband options to the
community. It has been said by many, and we agree, that fiber broadband "future-
proofs" a community. That remains the highest priority.
However, fiber can't go everywhere that data is sought or needed. More internet users
and devices are now mobile than are fixed. The amount of data consumed by mobile
devices is growing at an annual rate of greater than 42%. According to research firm
Gartner the IoT (internet of things - where everything is connected to everything)
predicted that 6.4 billion IoT devices would be used globally in 2016. "IoT services are
the real driver of value in IoT, and increasing attention is being focused on new services
by end-user organizations and vendors," Gartner analyst Jim Tully said in the press
release. IoT will literally crush existing wireless data systems as it matures and "grows
Up "
Number of Global Users(Millin..
2.000 THE NUMBER OF CONNECTED UMMOS MUL EXCEED 50 BiLLION BY W�
1.800
1,600
1 400 -
200
1.000 —Deskto,a 18.1i 0
600 —Mobile
600 11160
400
1C1 `
200 0 19
01M RJCWIO'T
2007 300e 2009 3010 2011 2012 Mla 2014 M15 'RI, 142 WK sel -2114 2111 . 2112 2111 2129
BACKGROUND
Staff began to analyze the situation and determined that improved investment and
collaboration is required if Dubuque is to compete for access to state-of-the —art mobile
technology and data services. We also realized, however, that we would be beginning
with multiple strikes already against us. From the fact that we are a small market
without a dense urban population, to the fact that our topography for wireless
telecommunications is "challenging," and for many reasons in between, national carriers
would simply not be making their biggest infrastructure investments here nor bringing
their most unique and cost intensive advanced products to Dubuque.
City Staff and Greater Dubuque Development created a strategy to "get out ahead" of
the issue. It is composed of the following:
- Work with what is clearly the largest Dubuque wireless carrier (Verizon) to
examine its existing capacity and needs, and create a three-part strategy to
collaborate with the company to invest here and increase its capacity and resolve
its existing coverage challenges. This portion of the planning is underway and we
expect to be able to bring new options to the table soon.
- Determine the most effective way to interest second tier carriers to enter, invest
and compete in the Dubuque market. The early strategy effort here is to work with
what are called "neutral platforms", which are telecommunication companies that
construct wireless capacity and then "lease" it to competitors who want to enter the
market. Today's requested action falls in this portion of the strategy.
- Finally, analyze public infrastructure capable of leveraging wireless data
infrastructure to bring capacity to under-served areas or to support critical public
services such as public safety.
One key to the success of this strategy is to adequately anticipate and coordinate with
the communication industry's movement toward what is called "small cell" technology.
Small cells are low-power radio access nodes that are in busy or difficult to reach areas
and which carry a mobile signal to a larger, more area wide transfer site. (Think of them
as "spokes" that feed a communication "hub"). These small cells can be located on
existing private utility poles, public street lights/traffic poles or on purpose built poles.
2
7
ij
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ri '
Images of examples of small cell wireless options.
DISCUSSION
Mobilitie is the largest privately-held telecommunications infrastructure company in the
United States. One portion of its infrastructure business is to create turn-key facilities
for large national wireless carriers. Mobilitie's initial foray into Iowa was less than
successful, as many cities felt that Mobilitie's approach was too aggressive and that its
national positions supporting FCC (Federal Communications Commission) control over
local decisions was offensive. However, Dubuque responded openly to Mobilitie noting
that our needs (broad wireless infrastructures capable of linking to a broadband
connected community) were a priority and that we were interested in collaborations IF
they served the needs of the community.
Overthe course of discussions, a potential collaboration did develop that would reduce
the time and cost for Mobilitie to install wireless infrastructures while meeting the City's
communication needs and generating revenue. Attached is a proposed MLA (Master
Licensing Agreement) that sets out the structure for Mobilitie's on-going wireless
investments in the community while assuring the protection of public safety, public
rights-of-way and revenue for the City. The process conforms with all existing City
requirements, will accelerate wireless investment in the community, improve mobile
service capacity for citizens and generate revenue if a new pole is constructed or a City
pole is used (but not if a private utility pole is used, as state and federal law restricts
that).
BUDGETIMPACT
This Agreement does not require or contemplate any costs or expenses to the City of
Dubuque. It does contemplate lease revenue for any new poles placed in the public
right-of-way (not to exceed $2,000 annually per site), for equipment attached to any City
3
owned pole or for any fiber resources of the City used to support a site (at a rate
determined by the City).
It is unknown what level of revenue to expect until final design and deployment of
infrastructure is determined.
RECOMMENDATION AND ACTION REQUESTED
The attached agreement represents one portion of a comprehensive strategy to improve
the connectivity of Dubuque through new broadband and wireless investments. We
would respectfully request your approval and would ask that you forward this
information to the City Council with a recommendation to approve and execute the
attached Master Licensing Agreement.
CC: Barry Lindahl, City Attorney's Office
Steve Brown, Project Manager Engineering
4
f(Y�P�1F:]PRi infra ructt:r,
April 7, 2017
David Lyons
Greater Dubuque Development Corporation
900 Jackson St
#109
Dubuque, IA 52001
Mobilitie, LLC
660 Newport Center Dr
Suite 200
Newport Beach, CA 92660
USA Tel: 949.515.1500
www.mobilitie.corn
Re: Network Technology IA, LLC/ Dubuque, IA — Master License Agreement
Dear Mr. Lyons,
On behalf of Network Technology IA, LLC, please find enclosed two (2) partially executed originals of the
Master License Agreement made by and between Network Technology IA, LLC and the City of Dubuque,
IA.
Please contact me at your earliest convenience should you have any questions or require additional
information from Network Technology IA, LLC. My contact information is (949) 999-4542 or
nmorales@mobilitie.com. Thank you for your assistance with this matter.
Best Regards,
Net chnology IA, LLC
Legal
es
ssistant
MASTER LICENSE AGREEMENT BETWEEN THE
CITY OF DUBUQUE AND NETWORK TECHNOLOGY IA,LLC
FOR THE USE OF PUBLIC RtGHTS-OF-WAY
TABLE OF CONTENTS
PAGE
SECTION I. DF.FINITiONS--- ---------------------2
SECTION 2. GRANTING CLAUSE----------------------------------4
SECTION 3. PERMITTED USE OF RIGHTS-OF-WAY-- -------5
SECTION 4. TERM AND AMENDMENTS------_ -----—------—_5
SECTION 5. LICENSE FEES--------------------------------- 6
SECTION 6. APPROVAL OF COMMUNICATION SITES-------------------• 8
SECTION 7. CONSTRUCTION WORK REGULATION BY CITY -----------10
SECTION 8. CONSTRUCTION, RESTORATION AND MAINTENANCE
ACTIVITIES______ _.___—____—____—_—____—-----]1
SECTION 9. SUPERVISION BY CITY OF LOCATION OF POLES-------13
SECTION 10. INTERFERENCE WITH OTHER FACILITIES PROHIBITED------14
SECTION 11. COMPLIANCE WITH UTILITY REGULATIONS----------------14
SECTION 12. EMERGENCY CONTACTS-------------------____14
SECTION 13. INDEMNITY--------- ------------------IS
SECTION 14. INSURANCE REQUIREMENTS16
SECTION 15. ADMINISTRATION OF LICENSE— -------------17
SECTION 16. ASSIGNMENT OF LICENSF.-------------------------------17
SECTION 17. FUTURE CONTINGENCY-----------------------_—__18
SECTION 18. AGREEMENT VIOLATIONS LEADING TO TERMINATION.---18
SECTION 19. GOVERNING LAW,JURISDICTION AND VENUE— -----19
SECTION 20. MISCELLANEOUS PROVISIONS ------------------------19
022817ba]
MASTER LICENSE AGREEMENT BETWEEN THE
CITY OF DUBUQUE AND NETWORK TECHNOLOGY [A,LLC,FOR THE USE
OF PUBLIC RIGHTS-OF-WAY
This MASTER LICENSE AGREEMENT FOR THE USE OF PUBLIC RIGHTS OF
WAY ("Agreement') is made and entered into by and between the City of Dubuque
("City" or "Licensor"), and Network Technology IA. LLC,. an Iowa limited liability
company ("Licensee). Licensor and Licensee are at times collectively referred to
hereinafter as the`Parties` or individually as the`Party."
WHEREAS, Licensee has requested use of certain locations within the public
rights-of-way of the City to install, maintain and operate communications systems as
specified in this Agreement; and
WHEREAS, the City has the power to regulate the public rights-of-way within its
territorial boundaries and is willing to permit such use subject to the terms and conditions
of this Agreement; and
WHEREAS, the City believes the creation of additional communication systems in the
City is critical to the future growth of its economy and quality of life of its citizens.
NOW THEREFORE, IN RECOGNITION OF MUTUAL CONSIDERATION,THE
ABOVE PARTIES AGREE TO THE FOLLOWING:
SECTION I. DEFINITIONS
For purposes of this Agreement the tollowing terms shall have the same meanings herein.
When not inconsistent with the context words in the plural number include the singular
number, and words in the singular include the plural.
(a) "Annual License Fee"means the annual rates described in the table at Section 5(b)
of this Agreement.
(b) "Backhaul Equipment'means broadband backhaul transmission facilities,whether
provided by landline communications infrastructure(including,without limitation,
fiber, conduit and related equipment and improvements) ("Landline Backhaul
Equipment) and/or wireless communications infrastructure (including, without
limitatiou, wireless microwave and related cables, wires. equipment and
improvements)(`Wireless Backhaul Equipment')that interconnects with Wireless
Communication Equipment at the Point-of-Demarcation and is for the purpose of
providing Backhaul Service.
(c) "Backhaul Service'means communications transport service,whether provided by
Landline Backhaul Equipment or Wireless Backhaul Equipment that interconnects
with the Wireless Communication Equipment at the Point-of-Demarcation.
2
(d) "City Representative"means the City Manager or his/her designee.
(e) "Communication License Fee" means the rate described in Section 5(a) of this
Agreement.
(f) "Communication System" or "Communication Systems" means Wireless
Cornmunication Equipment and/or Backhaul Equipment.
(g) "Communication Service" means Wireless Communication Service and/or
Backhaul Service.
(h) "Communication Site" means a location in the Public Rights-of-Way selected for
the Communication System.
(i) "Communication Site Application" means a document, substantially in the farm
attached as Exhibit 1, Part A, which shall identify the location of the proposed
Communication Site, describe the characteristics of the proposed Communication
System installation, and he accompanied by relevant documents to support
approval of the proposed installation.
O "Communication Sites Inventory"means an accurate and current inventory of all
Communication Sites approved by Licensor pursuant to this Agreement.
(k) "Effective Date"means the latest date on which this Agreement is signed by both
Parties.
(1) "Licensee Pole" or"Licensee Poles" means pole(s) or similar vertical structure(s)
owned and installed by Licensee for the purpose of supporting Communication
Systems.
(m) "Point of Demarcation" means the point of where the Wireless Communication
Equipment terminate and interconnect with Backhaul Equipment.
(n) "Rights-pf-Way" or "Public Rights-of-Way" means the surface of, and the space
above and below,any public street,road, highway,freeway, lane,path,public way
or place, sidewalk, alley, boulevard. parkway, drive, or other easement now or
hereafter-held by the City .
(o) "Rights-of-Way Regulations" means all portions of City ordinances and policies
that concern the regulation or management of Public Rights-of-Way, which are
applicable to all utilities operating within the Public Rights-of-Way.
(p) "ROW Management Fee Schedule"shall have the meaning ascribed to it in Section
5(b)of this Agreement.
g
(q) "Supplemental License" means a document, substantially in the form attached as
Exhibit 1, Part B. Each Communication Site installation will be subject to a
Supplemental License.
(r) "Transmission Media" means radios, antennas, transmitters, wires, fiber optic
cables, and other wireless transmission devices which are part of Clic Wireless
Communication Equipment.
(s) "Unauthorized Communication Site" means use of Public Rights-of Way for the
installation of Coaunumcation System on City poles or poles owned by another
party, or for the installation of Licensee Pales or any other Systems, for which
Licensee did not receive approval wider this Agreement.
(q "Unauthorized Installation Charge"means the license fee payable by Licensee to
Licensor under this Agreement for an Unauthorized Communication Site.
(u) "Wireless Communication Service"means wireless,Wi-Fi,voice,data,messaging,
or similar type of wireless service now or in the future offered to the public in
general using spectrum radio frequencies, whether or not licensed by the Federal
Communication Commission("FCC")or any successor agency.
(v) "Wireless Communication Equipment" means the Transmission Media attached,
mounted, or installed on a pole located in Public Rights-of-Way, in addition to
control boxes, cables, conduit. power sources, and other equipment, structures,
plant, and appurtenances between the Transmission Media and the
Point-of-Demarcation for the purpose of providing Wireless Communication
Service,
SECTION 2. GRANTING CLAUSE
(a) License to Use Rights-of-Way—Licensor hereby grants Licensee,a non-exclusive
license to use and occupy Rights-of-Way throughout the territorial boundaries of
the City, as these boundaries may be adjusted from tine-to-tine due to
annexations, for the permitted uses contemplated under Section 3, subject to the
conditions outlined in this Agreement.
(b) License to Use City Poles—Licensor also grants I.icensee a non-exclusive license
to use City poles for the purpose of attaching the Communication System based on
the then-current inventory of City poles. Licensee's access to individual City poles
and attaching Communication Systems will be determined on a case-by-case basis
pursuant to the provisions of this Agreement,and such access and attachment shall
not be unreasonably withheld, conditioned or delayed by the City.
(c) License to Use Licensee Poles — Licensee also grants Licensor a non-exclusive
license to use Licensee Poles for the purpose of attaching City equipment provided
that such attachment of City equipment passes Licensee's structural analysis and/or
4
City equipment does not interfere with Licensee's operations. Licensor's
attachment of City equipment to Licensee Poles is subject to Licensee's approval,
which shall not be unreasonably withheld,conditioned or delayed.
SECTION 3. PERMITTED USE OF RIGHTS-OF-WAY
(a) Provision of Personal Communication Service— Public Rights-of-Way may be
used by Licensee,seven(7)days a week,twenty-four(24)hours a day,only for the
installation, construction, use, maintenance, operation, repair, modification,
replacement and upgrade of Licensee Poles and/or Communication System by
Licensee from time to time for Wireless Communication Service and/or Backhaul
Service or to comply with applicable federal and state laws, ordinances, rules and
regulations, and not for any other purpose whatsoever. This Agreement shall
include new types of Wireless Communication Equipment or Backhaul Equipment
that may evolve or be adopted using wireless technologies. Licensee shall, at its
expense, comply with all applicable federal and state laws, ordinances, rules and
regulations, and Rights-of-Way Regulations in connection with the use of Public
Rights-of-Way.
(b) Installations — WireIess Communication Equipment and Wireless Backhaul
Equipment may be installed only on Licensor's poles under the terms of this
Agreement, on poles under the terms of a separate agreement with the owner of
such poles, or on Licensee's Poles and surrounding space until the
Point-of-Demarcation,and Landline Backhaul Equipment may be installed only at
the locations and as provided in a Supplemental License executed by the City. If
the Communication System is to be installed on a Licensee Pole,such pole shall be
deemed part of the Communication System for purposes of this Agreement.
Licensee agrees to tag or otherwise identify each Licensee Pole it installs in the
Public Rights-of-Way as owned by Licensee,
(c) Iowa One Call—Iowa One Call Registration is required and can be accomplished
by calling 1-800-292-8989, with submission of documentation to City
Representative when received.
SECTION 4. TERM AND AMENDMENTS
(a) Term of Agreement — The term of this Agreement shall be for ten (10) years
commencing on the Effective Date and ending at midnight on the last day of the
term (the "Term"), provided however that, unless either Parry provides written
notice to the other Party prior to expiration of the Term or a Renewal Tenn (as
defined below)that the notifying Party will not renew the Term or a Renewal Term,
the Term or Renewal Term will automatically renew torthree(3)additional five(5)
year periods (each a `Renewal Tenn'% upon the same terms and conditions set
forth in this Agreement. Notwithstanding the foregoing,in no event shall the Term
or a Renewal Term expire until: (i) terminated pursuant to Section 18, or(ii) the
5
expiration or earlier termination of all Supplemental Licenses entered into
hereunder.
(b) Supplemental Licenses — Each Communication Site will be subject to a
Supplemental License pursuant to the terms and conditions of flus Agreement. The
term of each Supplemental License shall be for(5) years commencing on the date
the corresponding Communication Site Application is approved as provided
hereunder("Commencement pate"),provided however that,so long as the Term or
a Renewal Term is still in effect,unless Licensee provides written notice to the City
prior to the expiration of the then current term that Licensee will not renew the
term, the term will automatically renew for three (3) additional, consecutive five
(5)year periods, upon the same terms and conditions set forth in this Agreement.
(c) Termination of Supplemental Licenses — A Supplemental License may be
terminated prior to the expiration of the Term: (i) by Licensor upon notice to
Licensee, if Licensee fails to pay any amount when due hereunder concerning the
applicable Communication System and such failure continues for fifteen(15)days
after Licensee's receipt of written notice of nonpayment from Licensor; or (ii) by
either Party upon notice to the other Party, if such other Party materially breaches
any provision of this Agreement concerning the applicable Communication System
and the breach is not cured within sixty(60) days after receipt of written notice of
the breach from the non-breaching Party; or(iii) by Licensee, at any lime, with or
without cause,upon notice to Licensor.
(d) Effect of Termination —All Annual License Fees paid prior to the expiration or
earlier termination of the Supplemental License shall be retained by Licensor.
Within thirty (30) days after such expiration or earlier termination, Licensee shall
provide the City Representative with a schedule and timeline for removing the
Communication System acceptable to the City Representative. Licensee shall
continue to be liable to Licensor for the Annual License Fee prorated for every
month that such Communication System remains in the Rights-of--Way and the
Supplemental Licensee shall be deemed to remain in effect until it is removed.
After such removal,the Supplemental License shall be of no further force or effect
and Licensee shall have no further obligations for the payment of Annual License
Fees to Licensor in connection therewith.
SECTION 5. LICENSE FEES
(a) Communication License Fee — Licensee shall pay Licensor an one-time
communication license fee of $200 C`Communicalion License Fee") for
attachment or installation of Wireless Communication Equipment (or Wireless
Backhaul Equipment) at a Communication Site. Licensor shall only charge
Licensee this Communication Licenser, Fee once during the Tetra of this
Agreement and any Renewal Terms.
6
(b) Annual License Fee —'Che Parties acknowledge that the Licensor is currently in.
the process of developing a City Public Right-of-Way License management fee
schedule("ROW Management Fee Schedule"),however,such ROW Management
Cee Schedule will not be effective or established as of the Effective Date of this
Agreement. As such, the Parties expressly acknowledge and agree that the ROW
Management Fee Schedule or any required fees set forth therein shall not be
applicable to any Communication Site(s)during the Team or any Renewal Term(s)
under this Agreement Instead, the Annual License Fee(s) applicable to a
Communication Site(s)shall be as provided in the following table depending on the
type of Communication System thereat, and shall not exceed $2000 per
Communication Site:
Type of Communication System: Annual License Feer
Wireless Communication Equipment (or Wireless Annual fee as
Backhaul Equipment) on a pole owned by City and determined by the City
located in the City's Public Right-of-Way Manager, and as agreed
to by the Partes and set
forth in the
Supplemental
Licenae(s),
Wireless Communication Equipment (or WirelessAnnual fee as
Backhaul Equipment)on apole installed and owned by determined by the City
Licensee and located in the City's Public Right-of-Way Manager, and as agreed
to by the Parties and as
set forth in the
Supplemental
License(s).
Landline Backhaul Equipment owned by the City and Annual fee as
located in the City's Public Right-of-Way determined by the City
Manager, and as agreed
to by the Parties and as
set forth in the
Supplemental
License(s). If the
Landline Backhaul
Equipment exceeds
fifty (50) feet, the City
may charge Licensee
an additional one-time
charge not to exceed
$4.00 pper lineal foot.
The City may specifically waive any fee for an approved Communication Site.
7
The City expressly acknowledges and agrees that it shall not charge Licensee, and
Licensee shall not be responsible for any payment of, an Annual License Fee for
Wireless Communication Equipment(or Wireless Backhaul Equipment) on a pole
owned by a third party located in the City's Public Right-of-Way.
(c) Timing of License Fee Payments—Licensee shall pay in advance to Licensor the
Annual License Fee for the corning year for each Communication Site. The Annual
License fee for all Communication Sites installed during any given month will
commence and be due on the first day of the following month (the "License Fee
Commencement Date"). Thereafter, on each annual anniversary of License Fee
Commencement Date,Licensee shall pay Licensor the Annual License Fees.
(d) Late Payment Interest — Any Annual License Fees not paid within fifteen (15)
days of notice of non-payment will be assessed a rate of 10°% per annum from that
date.
(e) Annual License Fees to Licensor—Licensee shall pay Licensor the fees specified
in this Section pursuant to a payment process m mutually agreed to by the Parties or
in the form of a money transfer or a check made out to the order of the City of
Dubuque and sent to:
City of Dubuque,City Hall
Attn: Finance Department
50 W 13th St,
Dubuque,lowri 52001
(f) Permit to Work in Public Right-of-Way Fees —The Annual License Fees per
Communication Site and Communication License Fee do not include the applicable
Permit To Work In Right-of-Way fees set forth in Exhibit 2 attached hereto,and as
such fees may from time to time be amended.
SECTION 6. APPROVAL OF COMMUNICATION SITES
(a) Communication Site Application — Licensee shall file with the City
Representative a Communication Site Application for every proposed
Communication Site. Said application form may be modified from time-to-lime by
the City Representative as deemed necessary in order to more efficiently process
applications from Licensee.
(b) Communication Site Approval Process — Upon filing of a complete
Communication Site Application, the City Representative shall process the
Communication Site Application within thirty (30) days, unless the City
Representative and Licensee agree to extend such process.
(1) Rights-of-Way Determination -The Licensor will determine whether the
location(and any existing pole)identified by Licensee as a Communication
8
Site is within City Rights-of-Way, The Licensor shall timely notify the
Licensee if a survey is required. If a survey is required, Licensee may
provide the survey at its own cost or it may have Licensor provide the
survey and the Licensee agrees to bear the cost of such survey if conducted
by the Licensor.
(2) Ownership of City Pole—The Licensor will confirm the ownership of any
City pole identified for installation of the Communication System.
(3) Site Eligibility—Licensor shall determine whether a requested City pole or
the location for the installation for a new pole is eligible as a
Communication Site based on space availability or other considerations. In
addition, Licensor must determine whether public safety considerations
prevent eligibility of a pole as a Communication Site. Concerning a request
to install a new pole, Licensor shall determine whether Rights-of-Way
Regulations and availability of Rights-of-Way prevent the pole installation
at the requested location,
(4) Review Criteria — For each Communication Site Application, the City
Representative shall:
a. Verify that the Communication Site Application is complete.
b. Review engineering design documents to determine:
i. compliance with contractual requirements under this Agreement;
and
ii. no interference with City public safely radio system,traffic signal
light system,or other communications components; and
iii, compliance with City pole attachment regulations for traffic light
poles, including replacement of an electric meter with dual
meters, if and as applicable.
iv. review for no interference with other third party equipment
lawfully in the right of way.
C. Determine compliance with any other applicable requirements
including but not limited to planning, zoning, historical, cultural
and environmental requirements.
d- Verify insurance submittal meets City requirements for carrier and
contactor(s),
9
All Communication Site Applications requesting access to a City pole must
include a load bearing study to determine whether the attachment of the
Communication System may proceed without pole modification or whether the
installation will require pole reinforcement or replacement. If pale
reinforcement or replacement is necessary. Licensee shall provide engineering
design and specification drawings demonstrating the proposed alteration to the
pole.
As appropriate,.the City Representative shall require Licensee to make design
modifications in order to comply with applicable contractual, regulatory, or
legal requirements. Failure to make the requested design modifications shall
result in an incomplete Communication Site Application which may not be
processed under this Agreement.
(5) Approval of Application — Upon finding that the Communication Site
Application is complete and in compliance with all applicable requirements
as outlined above, the City Representative shall approve such
Commmucation Site application. The approval of the Communication Site
Application requesting to attach to a City pole,or to install a new pole,shall
authorize Licensee to proceed to obtain all generally applicable,ministerial
permits that are required of all occupants of the Public Rights-of-Way, if
required (collectively, "ROW Permit"). Licensee shall comply with the
requirements of the Rights-of-Way Regulations, including obtaining. a
ROW Permit. Upon obtaining a ROW Permit, Licensee may proceed to
install the Communication System in coordination with any affected City
departments. Approval of a Communication Site Application related to the
use of a pole owned by a third party, shall authorize Licensee to proceed
with attachment process applicable to the pole owner and in accordance
with the pole owner's regulations proceed to install the Communication
System in coordination with any affected City departments. When using a
third party pole, Licensee must abide by all applicable federal and state
laws, ordinances, rules and regulations when working in public right of
way.
(6) Execution of Supplemental License — Upon approval of the
Communication Site Application, the Parties shall execute a Supplemental
License, which shall be effective as of the date of application approval.
SECTION 7. CONSTRUCTION WORK-REGULATION BY CITY
(a) Compliance with Law Required—The work done by Licensee in connection with
the installation, construction, maintenance, repair, and operation of
Communication System on poles within the Public Rights-oF-Way shall be subject
to and governed by all pertinent local and state laws, rules, regulations, including
the City's Rights-of-Way Regulations, that are applicable to ensuring the work
10
done does not unduly inconvenience the public in the use of the surface of the
streets and sidewalks.
(b) Duty to Minimize Interference — All pole excavations, construction activities,
and aerial installations on poles in the Rights-of-Way shall be carried on as to
minimize interference with the use of City's Rights-of-Way and with the use of
private property,in accordance with all regulations of the City necessary to provide
for public health,safety and convenience.
SECTION 8. CONSTRUCTION, RESTORATION AND MAINTENANCE
ACTIVITIES
(a) Eligibility of City Pole—Prior to submitting a Communication Site Application
related to the use of a City pole,Licensee shall verify with the City the eligibility of
the specified pole for attachment of the Communication System. In addition,
Licensee shall conduct an engineering load bearing study to determine whether the
pole can withstand the added weight of the Communication System. If the
proposed installation will require pole reinforcement or replacement, the
engineering design documents included with the Communication Site Application
shall include specifications relating to the proposed pole reinforcement or
replacement. Construction activities involving pole reinforcement or replacement
shall be coordinated with applicable City personnel
(b) Compliance with Rights-of-Way Regulations— In the installation, construction,
maintenance, upgrade, and operation of Communication System, Licensee shall
comply with the provisions of the Rights-of-Way Regulations, including but not
limited to provisions pertaining to the following activities:
(1) construction activities related to tire installation, maintenance, repair,
upgrade, and removal of Communication System on existing poles in the
Rights-of-Way;
(2) installation of new poles in the Rights-of-Way;
(3) cut or otherwise disturb the surfaces of the flights-of-Way;
(4) disruption of vehicular and pedestrian traffic on Rights-of-Way to a
minimum as reasonably necessary to execute the required work;
(5) applicable excavation and restoration standards;
(6) pavement repairs;
(7) notification to abutting property owner(s).
II
(c) Submission of Engineering Plans — Prior to installation, Licensee shall submit
engineering plans to the City representative for review and approval in accordance
with the Rights-of-Way Regulations and as required by commtmication site
application,Exhibit 1, Part A.
(d) Identification of Utility [,fines — Prior to beginning any excavation or boring
project on Public Rights-of-Way, Licensee shall engage Iowa One Call. Licensee
has the responsibility to protect and support the various utility facilities of other
providers while conducting construction,installation,and maintenance operations.
(e) Maintenance and Repair of Communication System— Licensee shall keep and
maintain all Communication System installed on Public Rights-of-Way in
commercially reasonable condition and repair throughout the Perm, normal wen
and tear and casualty excepted. Licensee shall have the right to conduct testing and
maintenance activities, and repair and replace damaged or malfunctioning
Communication System at any time during the Tenn.
(f) Upgrade of Communication System — Licensee shall have the right to upgrade
the Communication System with next-generation equipment and innovative new
technologies. Prior to making any such equipment or technology upgrade that
materially changes the size or weight of the Communication System,Licensee shall
rile a Communication Site Application with the City Representative, who shall
review the application for compliance with the permitted use under this Agreement
and to verify that the new installation will not cause any interference with City's
public safety communications system, traffic signal system, or other City
communications infrastructure operating on spectrum where the City is legally
authorized to operate. Licensee will address any interference issues prior to
approval of such application. It will be the responsibility of Licensee to verify that
upgrades to systems do not effect third parry systems and if upgrades are on third
parry systems that they do not interfere with City systems.
(g) Coordination of Maintenance and Equipment Upgrade Activities — Prior to
Licensee engaging in planned or routine maintenance activities, or equipment
upgrades concerning Communication System attached to a City street light or
traffic signal pole, Licensee shall provide twenty (20) days advance notice to the
City Representative in order to coordinate such maintenance activities with City
operations of the traffic light system or other public safety functions. Licensee
shall obtain a ROW Permit prior to engaging in any maintenance or equipment
upgrade activities in the Rights-of-Way regardless of pole ownership. Such twenty
(20)day advance notice shall not be required in the case of an emergency.
(h) Removal of Non-Compliant Installations—The City shall have the authority at
any time to order and require Licensee to remove and abate any Communication
System or other structure that is in violation of the City's Rights-of-Way
Regulations. In case Licensee; after receipt of written notice and thirty (30) days
opportunity to cure, fails or refuses to comply, the City shall have the authority to
12
remove the sante at the expense of Licensee,all without compensation or liability
for damages to Licensee.
(i) Reservation of Rights—The City reserves the right to install, aid permit others to
install utility facilities in the Rights-of-Way. In permitting such work to be done by
others, the City shall not be liable to Licensee for any damage caused by those
persons or entities.
(j) Nu Limitation in City's Operation of Street Light or Traffic Signal System—
The Partes agree that this Agreement does not in any way limit Licensor's right to
locate, operate.maintain,and remove City street light or traffic signal poles in the
manner that best enables the operation of its street light or traffic signal system and
protect public safety. The City Representative may deny access to City street fight
or traffic signal poles due to operational conditions at the requested site, limited
space availability, public safety concerns, future light or traffic signal system
planning, or other operational considerations. Farther,nothing in this Agreement
shall be construed as granting Licensee any attachment right to install
Communication System to any specific street light or traffic signal pole,other than
an approved Communication Site Application and execution of the corresponding
Supplemental License under the terms of this Agreement.
(k) Coordination of Street Light or Traffic Signal Maintenance Activities and
Emergency Response— Prior to conducting planned or routine maintenance on
specific components of the traffic signal system mounted on poles where
Communication System has been installed,the City shall provide Licensee twenty
(20) days advance notice of such maintenance activities. In advance of such
maintenance activities, Licensee or Licensor, as appropriate, shall temporarily
cut-off electricity to its Communication System for the safety of maintenance
personnel. In the event of failure of components of the traffic signal system for
whatever reason, including damage resulting from vehicular collisions, weather
related events, or malicious attacks, Licensor will respond to restore traffic light
signal operations as a matter of public safety under the emergency provisions
outlined in Section 12. Should the events that results in damage or failure of the
street light or traffic signal system also affect Communication System, Licensee
shall have the sole responsibility to repair or replace its Communication System
and shall coordinate its own emergency efforts with the City.
SECTION 9. SUPERVISION BY CITY OF LOCATION OF POLES
(a) Supervision by City Representative — In the event Licensee desires to install
poles on Public Rights-of-Way in order to install Communication System at a
selected Communication Site, such poles shall be owned and maintained by
Licensee. Such poles shall be of adequate strength and straight,and shall be set so
that they will not interfere with the flow of water in any gutter or drain,and so that
they will not unduly interfere with ordinary travel on the streets or sidewalk. The
location of all Licensee's personal property, poles, aid electrical connections
13
placed and constructed by the Licensee in the installation, construction, and
maintenance of Communication System shall he subject to the lawful, reasonable.
and proper control, direction and/or approval of the City Representative.
Compliance with any other applicable requirements including but not limited to
planning, zoning, historical, cultural and environmental requirements must be
confirmed.
(b) Pre-Approval by City Representative — Prior to submitting a Communication
Site Application covering the installation of a new pole, Licensee shall verify with
the City Representative the eligibility of the Rights-of-Way location for the
proposed pole installation. Licensee shall include in the Communication Site
Application documentation from the City Representative approving the proposed
pole location in the Rights-of--Way.
SECTION 10. INTERFERENCE WITH OTHER FACILITIES PROHIBITED
(a) Interference with Rights of Others Prohibited — Licensee shall not impede,
obstruct or otherwise interfere with the installation,existence and operation of any
other system in the Rights-of--Way, including sanitary sewers, water mains, storm
water drains, gas mains, poles, aerial and underground electrical infrastructure,
cable television and telecommunication wires,public safety and City networks,and
other telecommunications, utility,or City personal property.
(b) Signal Interference with City's Communication Infrastructure Prohibited—
In the event that Licensee's Communication System interferes with the City's
traffic light signal system, public safety radio system, or other City
communications infrastructure operating in a spectrum where the City is legally
authorized to operate,Licensee will respond to the Licensor's request to address the
source of the interference as soon as practicable, but in no event later than
twenty-four(24) hours of receiving notice.
SECTION 11. COMPLIANCE WITH UTILITY REGULATIONS
(a) Compliance with Local Regulations —All Communication System installations
shall be in compliance with all relevant legal requirements for connecting the
Communication System to electricity and telecommunications service. City is not
responsible for providing electricity or transport connectivity to Licensee, unless
otherwise specifically provided for within a supplemental license.
SECTION 12. EMERGENCY CONTACTS
(a) Coordination of Emergency Events — In case of an emergency due to
interference, failure of street light or traffic signal system, or any unforeseen
events,Licensor will act to protect the public health and safety of its citizens,and to
protect public and private property, notwithstanding any provision in this
Agreement. Licensor will make every reasonable effort to coordinate its
14
emergency response with the Licensee. To that end, the Licensor will use the
following emergency contacts: The Licensee's network operations center may be
reached 24/7 at(877) 244-7889.
(b) Licensee's Duty to Maintain Cm rent Emergency Contacts — Licensee will
maintain the emergency contact information current at all times with the City
Representative.
(c). Licensee's Response to Network Emergency- In case of a network emergency,
Licensee may access its Communication System without first obtaining a ROW
permit provided Licensee has conducted network trouble-shooting and diagnostic
tests and has reasonably identified the point or points of network failure or
malfunction. While acting under this provision to address a network emergency,
Licensee shall conduct its activities within the Rigbts-of-Way in such a manner as
to protect public and private property. Licensee will make every reasonable effort
to coordinate its emergency response with the Licensor. To that end, prior to
entering the Rights-of-Way,Licensee will contact the City Representative and give
notice to Licensor of the network emergency and an estimated time period to
address the situation.
(d) Licensor's Duty to Maintain Emergency Contacts—Licensor will maintain the
emergency contact information current at all times with Licensee
SECTION 13. INDEMNITY
(a) General Indemnity Clause—Licensee covenants and agrees to INDEMNIFY,
DEFEND and HOLD HARMLESS, the City and the elected officials,
employees, officers, directors, agents and representatives of the City,
individually and collectively ("Indemnitees"), from and against any and all
costs, claims, liens, damages, losses, expenses, fees, fines, penalties,
proceedings,actions, demands, causes of action, liability and suits of any kind
and nature, including but not limited to, personal or bodily injury,death and
property damage, made upon the City arising out of a third-party claim to the
extent arising from any negligent acts or omissions of Licensee, any agent,
officer, director, representative, employee, consultant or subcontractor of
Licensee, or their respective officers, agents employees, directors or
representatives while in the exercise of the rights or performance of the duties
under this Agreement. The indemnity provided for in this paragraph shall
not apply to any liability arising from the gross negligence or willful
misconduct of the City or an Indemnitee.
(b) Licensor's Duty to Notify Licensee of Claims — The City shall give prompt
written notice to Licensee of any claim for which the City seeks indemnification.
Licensee shall have the right to investigate, defend, and compromise these claims
with prompt notice to the City attomey. Said approval shall not be unreasonably
withheld,delayed or conditioned.
15
(c) Licensor's Consent to Settle Claims—Licensee may not settle any claim subject
to this Section without the consent of City, unless (i) the settlement will be fully
funded by Licensee,and(ii)the proposed settlement does not contain an admission
of liability or wrongdoing by any elected officials, employees, officers,directors,
volunteers or representatives of City. The City's withholding its consent as
allowed in the preceding sentence does not release or impair Licensee of any
obligations under this Section. Licensee must give City at least twenty (20) days
advance written notice of the details of a proposed settlement before it becomes
binding. Any settlement purportingto bind City must first be approved by the City.
(d) General Limitation — Neither party will be liable under this Agreement for
consequential, indirect, or punitive damages (including lost revenues, loss of
equipment, interruption, loss of service, or loss of data) for any cause of action
based on the breach of this Agreement.
SECTION 14. INSURANCE REQUIREMENTS
(a) The Licensee shall at all times during the Term of this Agreement and any Renewal
Terms,provide insurance as described in the Insurance Schedule B attached hereto
as Exhibit 3, as such schedules may from time to time be amended.
(b) Prior to the commencement of any work under this Agreement,the Licensee shall
famish copies of all required certificate(s)of insurance to the City Representative.
The City shall have no duty to pay or perform under this Agreement until such
certificate has been received by the City.
(c) In addition to any other remedies the City may have upon the Licensee's failure to
provide and maintain any insurance or policy endorsements to the extent and within
the time herein required,the City shall have the right to order the Licensee to stop
work hereunder, and/or withhold any payment(s)which become dueto the
Licensee hereunder until the Licensee demonstrates compliance with the
requirements hereof.
(d) Nothing herein contained shall be construed as limiting in any way the extent to
which the Licensee may be held responsible for payments of damages to persons or
property resulting from the Licensee's or its subcontractors' performance of the
work covered under this Licensee Agreement.
(e) Licensor is a member of the Iowa Community Assurance Pool and Licensee
accepts Licensor's coverage as adequate for purposes of this Agreement.
SECTION 15. ADMINISTRATION OF LICENSE
(a) Administration of License by City Officials-The City Representative is the City
Manager or the City Manager's designee who is responsible for the administration
16
i
ofthis Agreement. The City Representative shall review the operations of Licensee
in the Rights-of-Way under this Agreement and the Rights-of-Wav Regulations.
(b) Licensee's Duty to Communicate with City Officials — Licensee shall
communicate with the City Representative all matters in connection with or
affecting the installation, construction, reconstruction, maintenance and repair of
Licensee's Communication System in the Rights-of-Way and provide periodic
deployment plans to the City Representative.
(c) Notice — Notices required by this Agreement may be given by registered or
certified mail by depositing the same in the United.States mail in the continental
United States, postage prepaid. Either Party shall have the right,by giving written
notice to the other, to change the address at which its notices are to be received.
Until any such change is made, notices shall be delivered as follows:
If to Licensor. With a copy to:
City Manager City Attorney
City Hall City Hall
50 West las'Street 50 West 13" Street
Dubuque IA 52001 Dubuque IA 52001
563.589.4110 563.589.4110
If to Licensee: With a copy to:
Network Technology IA,LLC Network Technology IA, LLC
2220 University Drive 2220 University Drive
Newport Reach,CA 92660 Newport Beach,CA 92660
Attention:Asset Management Attention: Legal Department
SECTION 16. ASSIGNMENT OF LICENSE
(a) Limited Right of Assignment—This Agreement and each Supptemental License
under it may resold or assigned by Licensee without any approval or consent of the
Licensor, but requiring poor notice to Licensor, to Licensee's principal, affiliates-
subsidiaries of its principal or to any entity which acquires all or substantially all of
Licensee's assets in the market defined by the FCC in which the Right-of-Way is
located by reason of a merger,acquisition or other business reorganization provided
that such acquiring entity is bound by all of the terms and conditions of this
Agreement. As to other parties,this Agreement and each Supplemental License may
not be sold or assigned without the written consent of the Licensor, which shall not
be unreasonably withheld- Licensee shall provide the City Representative notice of
any such merger, acquisition or other business reorganization with a principal,
Affiliate or subsidiary of Licensee within a reasonable period of time after the
17
consummation thereof No change of stock ownership, partnership interest or
control of Licensee or transfer upon partnership or corporate dissolution of
Licensee shall constitute an assignment hereunder.
(b) Licensee's Right to Grant Security Interest in License—Additionally,Licensee
may mortgage or grant a security interest in this Agreement and the
Communication System, and may assign this Agreement and Communication
System to any mortgagees or holders of security interest,including their successors
or assigns(collectively"Mortgagees"),provided such Mortgagees' interests in this
Agreement are subject to all of the terms and provisions of this Agreement. In such
event. City shall execute such consent to financing as may reasonably be required
by Mortgagees.
SECTION 17, FUTURE CONTINGENCY
(a) Renegotiation for Incapacity of Contract—Notwithstanding anything contained
in this Agreement to the contrary, in the event that this Agreement,in whole or in
part,is declared or determined by a judicial, administrative or legislative authority
exercising its jurisdiction to be excessive, unrecoverable, unenforceable, void,
unlawful, or otherwise inapplicable, the Licensee and Licensor shall meet and
negotiate an amended Agreement that is in compliance with the authority's
decision or enactment and, unless explicitly prohibited.
SECTION 18. AGREEMENT VIOLATIONS LEADING TO TERMINATION
(a) Events of Termination—This Agreement may be terminated before the expiration
date of the Tetra on written notice by City to Licensee, if Licensee materially
breaches any provision of this Agreement and such breach is not cured by Licensee
within sixty(60)days after Licensee's receipt of written notice of such breach from
the City. Licensee shall not be excused from complying with any of the terms and
conditions of this Agreement by the previous failure of the City to insist upon or
seek compliance with such terms and conditions.
(b) No Waiver of Duties —Termination of this Agreement does not relieve Licensee
from the obligation(i) to pay Annual License Fees accrued and owing to Licensor
under the Agreement at the time of termination, or (ii) concerning any claim for
damages against Licensee under this Agreement. Licensor's rights, options, and
remedies under this Agreement are cumulative, and no one of them is exclusive of
the other. Licensor may pursue any or all such remedies or any other remedy or
relief provided by law, whether or not stated in this Agreement. No waiver by
Licensor of a breach of any covenant or condition of this Agreement is a waiver of
any succeeding or preceding breach of the same or any other covenant or condition
of this Agreement.
18
SECTION 19. GOVERNING LAW,JURISDICTION AND VENUE
(a) Governing Law— This Agreement is passed in accordance with the constitutions,
statutes,ordinances,and regulations of the United States,the State of Iowa,and the
City of Dubuque in effect on the effective date of this Agreement,and as such local,
state, and federal laws may be subsequently amended.
(b) Compliance with Local Ordinances — Notting in this Agreement shall be
interpreted to limit the authority ofthe City to adopt,from time to time,ordinances,
rules and regulations that are generally applicable to occupants of the
Rights-of-Way that it determines necessary in the exercise of City's governmental
powers. Licensee shall abide by any Rights-of-Way Regulations that do not
conflict or are otherwise preempted by state or federal law..
(c) Enforcement of Local Regulations — Licensor expressly reserves the right to
enforce requirements for ministerial issuance of ROW Permits. It is understood
and agreed that Licensee is responsible for obtaining all such permits necessary to
install,maintain and operate its Communication System.
(d) Jurisdiction and Venue—THE PROVISIONS OF THE AGREEMENT SHALL
BE CONSTRUED UNDER, AND IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF IOWA, AND ALL OBLIGATIONS OF THE PARTIES
CREATED HEREUNDER SHALL BE PERFORMED IN THE DISTRICT
COURT OF IOWA FOR DUBUQUE COUNTY. THEREFORE, IN THE EVENT
ANY COURT ACTION IS BROUGHT DIRECTLY OR INDIRECTLY BY
REASON OF THIS AGREEMENT, THAT COURT SHALL HAVE
JURISDICTION OVER THE DISPUTE AND VENUE SHALL BE IN
DUBUQUE COUNTY.
SECTION 20, MISCELLANEOUS PROVISIONS
(a) Change of Law — If any applicable federal or state laws, ordinances, rates and
regulations, (including, but not limited to, those issued by the Federal
Communications Commission or its successor agency) and any binding judicial
interpretations thereof(collectively, "Lawsl that governany aspect of the rights or
obligations of the Parties under this Agreement shall change after the Effective
Date and such change makes any aspect of such rights or obligations inconsistent
with the then-effective Laws, then the Parties agree to promptly amend the
Agreement as reasonably required to accommodate and/or ensure compliance with
any such legal or regulatory change.
(h) Waiver—None of the material provisions of this Agreement may be waived or
modified except expressly in writing signed by the Licensee and Licensor. Failure
of either Party to require the performance of any term in this Agreement or the
waiver by either Party of any breach thereof shall not prevent subsequent
19
enforcement of this term and shall not be deemed a waiver of any subsequent
breach.
(c) Severahility — If any clause or provision of the Agreement is illegal, invalid, or
unenforceable under present or future laws effective during the Tenn, then and in
that event it is the intention of the Parties hereto that the remainder of this
Agreement shall not be affected thereby, and it is also the intention of the Parties
that in lieu of each clause or provision of this Agreement that is illegal, invalid, or
unenforceable, there be added as part of this Agreement a clause or provision as
similar in terms to such illegal,invalid,or unenforceable clause or provision as may
be possible and be legal,valid,and enforceable.
(d) Captions — The captions contained in this Agreement are for convenience of
reference only and in no way limit or enlarge the terms and conditions of this
Agreement.
(e) Extent of Agreement—Thus Agreement,together with its attached exhibits and the
authorizing ordinance, if any, embodies the complete agreement of the Parties,
superseding all oral or written previous and contemporary agreements between the
Parties and relating to this Agreement.
(f) Authority — The signer of this Agreement for the Licensee and the City hereby
represents and warrants that he or she has full authority to execute this Agreement
on behalf of the Licensee or the City respectively.
(g) Non-Waiver of Rights — By entering this Agreement, neither Licensor nor
Licensee has waived any rights either Party may have under applicable federal and
slate laws, ordinances, rules and regulations pertaining to the provision of
Communication Service or Licensee's access rights concerning the Rights-of-Way.
(h) Force Majeure — In the event a Party's performance of any of the terms,
conditions,obligations or requirements of this Agreement is prevented or impaired
due to a force majeure event beyond such Party's reasonable control,such inability
to perform will be deemed to be excused and no penalties or sanctions will be
imposed as a result thereof. For purposes of this subsection,"force majeure"means
an act of God, a natural disaster or an act of war (including terrorism), civil
emergencies and labor unrest or strikes,untimely delivery of equipment,pole hits,
and unavailability of essential equipment,and/or materials,and any act beyond the
Party's reasonable control- It also includes an explosion, the or other casualty or
accident, which is not the result of gross negligence, an intentional act or
misconduct on the part of the Party.
(i) Technical Amendments — Other than proposed substantive contractual
amendments requested under Section 4, the Parties may mutually agree to make
technical amendments to the Agreement and its exhibits that would not alter the
20
obligations and responsibilities of the Parties under the Agreement, in order to
address advances and/or innovations in wireless technologies and equipment.
QJ No Partnership or Joint Venture — The relationship between Licensor and
Licensee is at all times solely that of licensor and licensee, not that of partners or
joint venturers.
(k) Effect of Rankruptey— Bankruptcy, insolvency, assignment for the benefit of
creditors, or the appointment of a receiver is an event of default,
(I) Counterparts—This Agreement may be executed in multiple counterparts,each of
which is an original. Regardless of the number of counterparts,they constitute only
oneagreement. In making proof of this agreement,iL is not necessary to produce or
account for more counterparts than are necessary to show execution by or on behalf
of all Parties.
(m) Further Assurances — The Parties must execute and deliver such additional
documents and instruments as may be required to effect fully the provisions hereof.
No such additional document(s),however,may alter the rights or obligations of the
Parties as contained in this Agreement.
21
EXECUTED and AGREED.
CITY OF DUBUQUE
By its City Manager
Printed Name: Michael
Title:
Date:
NETWORK TECHNOLOGY IA, LLC
By its roegupd, cotutw
efri
(Signature)
Van Mill i gen Printed Name: aksisTOWIR G-WELS
Title:ap,r,ratDg,kucmo-
Date: 4/1/1i
City Manager
( /7/-4;
22
EXHIBIT 1, PART A
COMMUNICATION SITE APPLICATION
Applicant: Date:
Licensee: Application/License#:
Licensee Site Communication Site GIS Type of Communication Equipment
ID-# Coordinates
[Wireless Communication Equipment]
[Wireless Backhaul Equipment]
[Landline Backhaul Equipment]
If Wireless Communication Equipment or Wireless Backhaul Equipment:
Pole Type Pole Alteration Attachm Attachm Attachme Location of Equipment
ent ent nt Shelter
Height Weight Dimension
s
[City Pole] [Pole [Installed on Pole]
[Third-Party Pole] Reinforcement] [Installed in Ground
[Licensee Pole] [Pole Replacement] (Vault)]
[Not [New Pole] [Other Location (Requires
Applicable/Needed [Not City Representative
] Applicable/Needed] Approval)]
[Not Applicable/Needed]
APPLICANT SHALL PROVIDE THE FOLLOWING IF/AS APPLICABLE:
• Site plan and engineering design and specifications for installation of Communication
System, including the location of radios, antenna facilities, transmitters, equipment
shelters, cables, conduit, point of demarcation, backhaul solution, electrical
23
distribution panel, electric meter, and electrical conduit and cabling, as well as
documentation showing any existing underground or overhead utilities in the proposed
project area. Where applicable,the design documents should include specifications on
design,pole modification, and ADA compliance.
• For City poles, include documentation from the City verifying that the pole is eligible
for attachment, as well as documentation showing any existing underground or
overhead utilities in the proposed project area. Also include a load bearing study that
determines whether the pole requires reinforcement or replacement in order to
accommodate attachment of Cominunication System. If pole reinforcement or
replacement is warranted, the design documents should include the proposed pole
modification.
• For new pole installations, include documentation from the City Representative
verifying that the pole location in the Rights-of-Way is eligible for installation.
• If the proposed installation includes a new pole, provide design and specification
drawings for the new pole.
• If the proposed installation will require reinforcement or replacement of an existing
pole, provide applicable design and specification drawings.
• The number, size,type and proximity to the facilities of all communications conduit(s)
and cables to be installed.
• Description of the utility services required to support the facilities to be installed.
• All necessary permits and letters of authorization from all affected parties.
• List of the contractors and subcontractors,and their contact information,authorized to work
on the project.
APPLICANT REPRESENTATIVE:
PRINT NAME:
TITLE:
EMAIL ADDRESS:
TELEPHONE NUMBER:
-----------------------------------FOR CITY USE ONLY ------------------------------
RECEIPT DATE: APPLICATION NO.:
APPROVED BY:
PRINT NAME:
TITLE:
APPROVAL DATE:
24
EXIFHBIT 1,PART B
Supplemental License Form
Supplemental License No.
For Communication System Installation
This Supplemental License is entered on this day of , between the
City of Dubuque, acting through its City Representative,or his/her designee, ("Licensor")
and Network Technology IA,LLC, an Iowa limited liability company("Licensee").
1. Overview of Supplemental License—This Supplemental License applies to the
Communication Sites described below.
Authorizing
Agreement:
License: Master License Agreement for Use of Public Rights-of-Way
Licensor: City of Dubuque
Licensee: Network Technology IA, LLC
Licensee email contact information: [ _
Initial Aggregate
Annual License Fees:
Commencement Date:
Term: Term of 5 years with option of three(3)additional and
consecutive five(5)year automatic renewal periods
pursuant upon the same terms and conditions set forth in the
Master License Agreement.
Licensee- Situ Communication Site GIS Type of Communication Equipment
ID# Coordinates
[Wireless Communication Equipment]
[Wireless Backhaul Equipment]
[Landline Backhaul Equipment]
25
If Wireless Communication Equipment or Wireless Backhaul Equipment:
Pole Type Pole Alteration Attachm Attachm Attachme Location of .Equipment
ent ent nt Shelter
Height Weight Dimension
S
[City Pole] [Pole [Installed on Pole]
[Third-Party Pole] Reinforcement] [Installed in Ground
[Licensee Pole] [Pole Replacement] (Vault)]
[Not [New Pole] [Other Location (Requires
Applicable/Needed [Not City Representative
] Applicable/Needed] Approval)]
[Not Applicable/Needed]
2. Source of Authority—This Supplemental License is authorized and executed pursuant
to the terms and conditions of the "Master License Agreement between the City and
Licensee for the Use of Public Rights-of-Way,"as it may be amended by the Parties during
its Term ("Master License Agreement"). All of the terms and conditions of the Master
License Agreement, including any future amendments, are incorporated herein by
reference and made a part hereof without the necessity of repeating or attaching the Master
License Agreement. Capitalized terms used in this Supplemental License shall have the
same definitions and meanings ascribed to them in the Master License Agreement, unless
otherwise indicated herein.
3. Approval Process—This Supplemental License arises from and is part of the approval
process associated with the Communication Site Application approved by the City
Representative on . The Communication Site Application,including
all attachments,is incorporated as Exhibit 1,Part A and made a part hereto. If not attached,
the Communication Site Application is hereby incorporated herein by reference and made
a part hereof without the necessity of repeating or attaching it.
4. Scope of License—This Supplemental License is limited to the Communication System
installation(s) referenced in the Communication Site Application associated with this
Supplemental License.
26
5. Conflict in Interpretation—Nothing in this Supplemental License is intended to grant
Licensee any rights or privileges beyond those addressed in the Master License
Agreement. In the event of any conflict in contractual interpretation between this
Supplemental I.,icense and the Master License Agreement,the teens and conditions of the
Supplemental License shall govern, provided however that any future amendments or
modifications to the Master License Agreement shall simultaneously apply and serve to
amend or modify this Supplemental License without the need by either Party to provide
notice of such to the other.
6. Site Specific Conditions — All site specific conditions shall be addressed in the
Communication Site Application associated with this Supplemental License.
7. Site Modifications—Prior to making any post-installation future material modifications
to a Communication Site, other than maintenance and repair of site specific
Communication System as further provided in the Master License Agreement, Licensee
shall file a supplemental license form with the City Representative describing the proposed
modifications. The City Representative,or his/her designee,shall review the supplemental
license form pursuant to the terms and conditions in the Master License Agreement,and if
approved such supplemental license form shall be attached hereto and made a part hereto.
Any additional site modifications shall be incorporated hereto in the same manner.
8. License Fee — The aggregate Annual License Fees applicable to this Supplemental
License, as summarized in Section 1 above, shall be calculated based on the number of
applicable Communication System as set forth in the Master License Agreement,payable
by Licensee as provided therein.
9. Commencement Date—The Commencement Date for this Supplemental License shall
be the same date that the Communication Site Application associated with this
Supplemental License,which is hereby approved by the City Representative.
10.Term—The term for this Supplemental License,as described in Section 1 above,is set
forth in the Master License Agreement.
i
I
27
NOW THEREFORE, the Parties hereto by the signature of their respective
representatives hereby agree to enter into this Supplemental License.
LICENSOR
CITY OF DUBUQUE
By:
Printed Name:
Title-
Date-
LICENSEE
itle:Date:LICENSEE
NETWORK TECHNOLOGY IA, LLC
By its
By:
Printed Name:
Title:
Date:
28
EXHIBIT 2
Permit To Work In Right-of-Way Fees
See attached
29
TO ALL CONTRACTORS:
On May 7, 2012 the Dubuque City Council approved the revised"Peri[to Work in Public Right-of-way"and associated
charges,penalties and requirements. Fees for excavation have changed, but the sidewalk/driveway permits remain the
same. Please note the charges listed below.
Excavation Permit and Street Division fees are as follows:
INSPECTION PERMIT FEE
RATE: $0.75/S.F.
MINIMUM $50.00
MAXIMUM $1,000.00(case by case basis)
SURFACE&PUBLIC WORKS DEPT.RESTORATION FEE
HMA $0.75/S.F. plus $6.55/S.F.'
HMA OVER CONCRETE $0.75/S.F. plus $8,55/$.F'
CONCRETE $0.75/S.F. plus $8.0o/S.F'
BRICK $0.75/S.F. plus $12.00/S.F'
'(Add't Traffic Control$may be added)
DIRECTIONAL BORING/TRENCHING 'Charge if City replaces excavation street patch.
RATE: $0.75/S.F. entrance/exit excavation areas+$0.50/1-5.trench/boring
CORING $50.00 per core
MINIMUM $50.00
MAXIMUM' $1,000+entrance/ext excavation areas
'residential purposes only
Record Drawings Required(Autocad Compatible;pelf or as-buih paper copy)
Public Sidewalk and Approach Permit charges.
NEW INSTALLATION REPAIR/REPLACEMENT
SIDEWALK&/or APPROACH $25 SIDEWALK,APPROACH,COURTESY STRIP,WATER STOP BOX:
Remove&Replace: $50/$25(Mandated/Non Mandated-
Lift, Grind, Remove, Lid $10 or before deadline)
Assessment of Any Work $50
NOTE:
-Multiple curb cut/approaches at one site will be considered as one and only one permit will be required and invoiced.
-The charges for all permits will be invoiced through the city finance department on a monthly basis.
-Failure to obtain permit prior to beginning any work in the public right-of-way may result in possible penalties and the loss
of the right to work in the public right-of-way.
-The contractor must provide the city a copy of"certification of insurance"meeting city specifications,endorsements,
requirements and guideline coverages priorto commencing any work in the public right-of-way.
-Any contractor doing business in the State of Iowa shall register with the labor commission and shall meet the
requirements as a condition of registration. According to chapter 91 c,Iowa Code,if you have not already registered with
the Division of Labor this should be done immediately.
-One call is required on any and all work in the public right-of-way and is the responsibility of the permittee.
-Any utility boxes, pedestals,vaults,must be identified with the utility contact name and number.
-Abutting owner must be notified of proposed work PRIOR to the start of any work or mobilization to site.
-If you have any questions please feel free to contact our office or visit the website at wwvv.citvofdubuque.orq to see a full
copy of the Policy for Excavation in Rights-of-Way..
Rev 02/2017 W:VANE SMITI-nMaaleMEXCAVATION REIATED
EXHIBIT 3
Insurance Schedule B
See attached
30
City of Dubuque Insurance Requirements for General,Artisan or Trade
Contractors, Subcontractors or Sub Subcontractors
Insurance Schedule B
Cass
Asbestos Removal Earthwork Piles&Caissons Steel
Asphalt Paving Electrical Plumbing Storm sewers
Concrete Elevators Retaining Walls Structural Steel
Construction Managers Fiber Optics Reinforcement Trails
Cranes Fire Protection Roofing Tunneling
Culverts Fireproofing Sanitary Sewers Water main
Decking General Contractors Sheet Metal
Demolition HVAC Site Utilities
Deconstruction Mechanical Shoring
Paving&Surfacing Special construction
Class 6:
Chemical Spraying Masonry Stump Grinding
Doors,Window&Glazing Vehicular Snow Removal Tank Coating
Drywall Systems Painting&Wall Covering Tree Removal
Fertilizer Application Pest Control Tree Trimming
Geotech Boring Scaffolding Tuckpointing
Insulation Sidewalks Waterproofing
Finish Carpentry Plastering Well Drilling
Landscaping Rough Carpentry
Clams C:
Carpet Cleaning Grass Cutting Tile&Terrazzo Flooring
Carpet&Resilient Flooring Janitorial Window Washing
Caulking&Sealants Non Vehicular Snow&Ice
Acoustical Ceiling Removal
Filter Cleaning Office Furnishings
General Cleaning Power Washing
Page l of 6 Schedule B,General,Artisan or Trade Contractors,Subcontractors or Sub Subcontractors July 2016
City of Dubuque Insurance Requirements for General,Artisan or Trade
Contractors, Subcontractors or Sub Subcontractors
Insurance Schedule B (continued)
INSTRUCTIONS FOR INSURANCE SUBMITTAL:
1. Contractor shall furnish a signed Certificate of Insurance to the City of Dubuque, Iowa
for the coverage required in Exhibit I prior to commencing work and at the end of the
project if the term of work is longer than 60 days. Providers presenting annual
certificates shall present a Certificate at the end of each project with the final billing.
Each Certificate shall be prepared on the most current ACORD form approved by the
Iowa Department of Insurance or an equivalent.The issued certificate must clearly
indicate the project number,project name,or project description for which it is being
provided Eg: Project# Project name:
or Project Location at or
construction of
2. All policies of insurance required hereunder shall be with a carrier authorized to do
business in Iowa and all carriers shall have a rating of A or better in the current A.M.
Best's Rating Guide.
3. Each Certificate required shall be furnished to the City of Dubuque
Department.
4. Failure to provide minimum coverage shall not be deemed a waiver of these
requirements by the City of Dubuque. Failure to obtain or maintain the required
insurance shall be considered a material breach of this contract.
S. Contractor shall require all subcontractors and sub-subcontractors to obtain and
maintain during the performance of work insurance for the coverages described in this
Insurance Schedule and shall obtain certificates of insurances from all such
subcontractors and sub-subcontractors. Contractor agrees that it shall be liable for the
failure of a subcontractor and sub-subcontractor to obtain and maintain such coverages.
The City may request a copy of such certificates from the Contractor.
6. All required endorsements to various policies shall be attached to the Certificate of
insurance.
7. Whenever an ISO form is referenced the current edition must be used.
g. Provider shall be required to carry the minimum coverage/limit,or greater if required by
law or other legal agreement, in Exhibit 1- Insurance Schedule B. If the provider's limit of
liability is higher than the required minimum limit then the provider's limit shall be this
agreement's required limit.
Page 2 of 6 Schedule B,General,Artisan or Trade Contractors,Subcontractors or Sub Subcontractors July 2016
City of Dubuque Insurance Requirements for General,Artisan or Trade
Contractors, Subcontractors or Sub Subcontractors
Insurance Schedule B (continued)
Exhibit 1
A) COMMERCIAL GENERAL LIABILITY
General Aggregate Limit $2,000,000
Products-Com pleted Operations Aggregate Limit $2,000,000
Personal and Advertising Injury Limit $1,000,000
Each Occurrence $1,000,000
Fire Damage Limit(any one occurrence) $ 50,000
Medical Payments $ 5,000
a) Coverage shall be written on an occurrence,not claims made,form.The general liability coverage shall
be written in accord with 150 form CG0001 or business owners form SP0002. All deviations from the
standard ISO commercial general liability form CG 0001,or Business owners form BP 0002,shall be
clearly identified.
b) Include ISO endorsement form CG 25 Be'Designated Location(s)General Aggregate Omit"or CG 2503
'Designated Construction Project(s)General Aggregate lima"as appropriate.
c) Include endorsement indicating that coverage is primary and non contributory.
d) Include endorsement to preserve Governmental Immunity.Oample attached).
e) Include an endorsement that deletes any fellow employee exclusion.
1) Include additional insured endorsement for
The City of Dubuque,including all its elected and appointed officials,all its employees and
volunteers,all its boards,commissions and/or authorities and their board members,employees
and volunteers.Use 150 form CG 2010. Ongoing operations.
g) All contractors shall include The City of Dubuque(per the above verbiage)as an additional insured for
completed operations under 150 form CG 2037 during the project term and for a period of two years
after the completion of the project.
B) AUTOMOBILE LIABILITY $1,000,000(Combined Single Limit)
Q WORKERs'COMPEN5ATIOR&EMPLOYERS LIABILITY
Statutory Benefits covering all employees injured on the job by accident or disease as prescribed by
Iowa Code Chapter 95.
Coverage A Statutory—State of Iowa
Coverage B Employers Liability
Each Accident $100,000
Each Employee-Disease $100,000
Policy Limit-Disease $500,000
Policy shall include an endorsement providing a waiver of subrogation to the City of Dubuque.
Coverage B limits shall be greater if required by Umbrella Carrier.
Page 3 of 6 Schedule B,General,Artisan or-Trade Contractors,Subcontractors or Sub Subcontractors July 201E
City of Dubuque Insurance Requirements for General, Artisan or Trade
Contractors, Subcontractors or Sub Subcontractors
Insurance Schedule B (continued)
Exhibit I
D) Umbrella Liability
Umbrella liability coverage must beat least fallowing farm with the underlying policies Included
herein.
All Class A contractors with contract values in excess of$10,000,000 must have an umbrella of
$10,000,000.
All Class A and Class B contractors with contract values between$500,000 and$10,000,000 must have
an umbrella of$3,000,000.
All Class A and B contractors with contract values less than$500,000 must have an umbrella of
$1,000,000.
All Class C contractors are not required to have an umbrella.
All contractors performing excavation work must have a minimum of$3,000,000 umbrella regardless
of the contract value.
E) Pollution Liability Coverage required: _yes _no
Pollution liability coverage shall be required if project involves any pollution exposures including
abatement of hazardous or contaminated materials including,but not limited to,the removal of lead,
asbestos,or PCB's.Pollution product and complete operations coverage shall also be covered.
$2,000,000 each occurrence
$4,000,000 policy aggregate
a) Policy to include premises and transportation coverage.
b) Include additional insured as stated in Af above.
c) Include preservation of governmental immunity as stated in Ad above.
d) Provide evidence of coverage for 5 years after completion of project.
F) Railroad Pratect've L'abirty Coverage required: yes no
Any Contract for construction ar demolition work on or within Fifty feet(501 from the
edge of the tracks of a railroad or effecting any railroad bridge or trestle,tracks,
roadbeds,tunnel,underpass,or crossing for which an easement or license or
indemnification of the railroad is required, shall require evidence of the following
additional coverages.
Railroad Protective Liability:
$ each occurrence(per limits required by Railroad) 'I
$ policy aggregate(per limits required by Railroad)
Page 4 of 6 Schedule 0,General,Artisan or Trade Contractors,Subcontractors or Sub Subcontractors July 2016
City of Dubuque Insurance Requirements for General,Artisan or Trade
Contractors, Subcontractors or Sub Subcontractors
OR
An endorsement to the Commercial General Liability policy equal to ISO CG 2417(Contractual
Liability-Railroads). A copy of this endorsement shall be attached to the Certificate oflnsunimce-
Page 5 of Schedule B,General,Artisan or Trade Contractors,Subcontractors or Sub Subcontractors July 2016
City of Dubuque Insurance Requirements for General,Artisan or Trade
Contractors, Subcontractors or Sub Subcontractors
Preservation of Governmental Immunities Endorsement
1. Nonwa'ver of Governmental Immunity.The insurance carrier expressly agrees and states that the
purchase of this polity and the including of the City of Dubuque,Iowa as an Additional Insured does
not waive any of the defenses of governmental immunity available to the City of Dubuque,Iowa
under Code of Iowa Section 670.4 as it is now exists and as it may be amended from time to time.
2. Clams Covemee.The insurance carnerfurther agrees that this policy of insurance shall cover only
those claims not subject to the defense of governmental immunity under the Code of Iowa Section
670.4 as it now exists and as it may be amended from time to time.Those claims not subject to
Code of Iowa Section 670.4 shall be covered by the terms and conditions of this insurance policy.
3. Assertion f Government ImmunW.The City of Dubuque, Iowa shall be responsible for asserting any
defense of governmental immunity,and may do so at any time and shall do so upon the timely
written request of the insurance carrier.
4. Nan-Den'al of Coverage The insurance carrier shall not deny coverage under this policy and the
insurance carrier shall not deny any of the rights and benefits accruing to the City of Dubuque,Iowa
under this policyfor reasons of governmental immunity unless and until a court of competent
jurisdiction has ruled in favor of the defense(s)of governmental immunity asserted by the City of
Dubuque,Iowa.
No other Change in Policy,The above preservation of governmental immunities shall not otherwise
change or alter the coverage available under the policy.
SPECIMEN
Page 6of6 schedule B,General,Artisan or Trade Contractors,Subcontractors or Sub Subcontractors July 2016