Request for Proposals
October, 2015
CA/T Parcel 27 A
Bound by Ramp F and Ramp KK
Boston, Massachusetts
Massachusetts Department of Transportation
Stephanie Pollack, Secretary
REQUEST FOR PROPOSALS
Parcel 27A – inside Ramp F and Ramp KK
Boston, Massachusetts
Issuing Office and Contact Information
This RFP is issued by MassDOT’s Office of Real Estate and Asset Development (OREAD). All
correspondence, including questions, clarifications, and final responses shall be addressed to:
Massachusetts Department of Transportation
Office of Real Estate and Asset Development
10 Park Plaza, Suite 5720
Boston, MA 02116
E-Mail: massdot.re@state.ma.us
Cc: Robin.Blatt@state.ma.us
RFP Schedule
October 7, 2015
5:00 pm, November 20, 2015
2:00 pm, December 11, 2015
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RFI made available to Responders
Written Question Due Date
Deadline for submitted responses
Contents
I. OVERVIEW
5
II. LICENSE TERMS
8
III. SUBMISSION REQUIREMENTS
10
IV. RESERVATIONS AND CONDITIONS
16
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FIGURES
Figure 1: Location Plan
Figure 2: Site Plan
Figure 3: Existing Billboard
Figure 4: Areas Excluded from State Highway Layout & Included in NORUU
APPENDICES
A. Form License Agreement
SCHEDULES
A. MGL Chapter 7C, Section 38 Disclosure Statement
B. Bid Form
C. Clerk’s Certificate
D. Additional Certifications
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I. Overview
A.
Purpose. The Massachusetts Department of Transportation (“MassDOT”) desires to
license a portion of land, known as Parcel 27A, located between highway ramps F and KK at the
interchange of I-93 and I-90 (the “Parcel”) in Boston. MassDOT is seeking responses from
parties, duly licensed by the Massachusetts Office of Outdoor Advertising, who demonstrate the
ability to permit, finance, construct, and maintain outdoor advertising structures on the Parcel
while maintaining harmony with the community and collaborating with MassDOT to deliver
Highway Safety Information and other public announcements. The License will be for an initial
term of ten (10) years, with an extension option for ten (10) years, and will be terminable for
transportation purposes or certain casualties. The highest responsible bidder who also
demonstrates adherence to the development goals outlined in Section 1.D below will be
designated as licensee of the parcel.
MassDOT is a body politic and corporate and public instrumentality of the Commonwealth of
Massachusetts established pursuant to M.G.L. Chapter 6C, as amended (the “Enabling Act”), to,
among other things, own, construct, maintain, repair, reconstruct, improve, rehabilitate, use,
police, administer, control and operate the State Highway System (as defined in the Enabling
Act). The Enabling Act further established within MassDOT the Division of Highways
(“MassDOT – HD” or the “Highway Division”) to administer and enforce M.G.L. Chapter 81
and to administer and manage the State Highway System. Pursuant to Chapter 25 of the Acts of
2009, as amended, effective November 1, 2009 ownership, possession, and control of all real
property formerly of the Massachusetts Turnpike Authority (“MTA”), including the Parcel,
passed to and became vested in MassDOT.
B.
Site Description, Background and Context. Parcel 27A is comprised of
approximately 4.67 acres located between Ramp F and Ramp KK of the Massachusetts
Turnpike, I-93 North, and the South Station Connector. The Parcel includes air rights over the
tunnel and highway, an access road into the parcel, subsurface utilities and structures, and areas
of environmentally sensitive material.
The Parcel was originally created as a part of the Central Artery/Tunnel Project (the “CA/T
Project”), and is one of four adjacent redevelopment parcels encompassing over ten acres at this
location. At a future date the Parcel may be combined with adjacent parcels and highway air
rights and licensed to a developer for a large scale mixed-use development. In the interim
MassDOT would like to make the Parcel available for the construction of outdoor advertising
structures.
The Parcel is located to the rear of the MassDOT Highway District 6 headquarters building
located at 185 Kneeland Street (See Figures 1 & 2). To the west of Parcel 27 lies Chinatown, a
historic and culturally significant community which traces its roots to the early 19th Century.
Home to Boston’s largest Chinese population, Chinatown is an important residential
neighborhood, economic hub, cultural center, and tourist destination with a unique mix of
residences and family owned businesses animating the ground floors of major streets with active
retail and restaurant uses. To the north of Parcel 27 lies the Leather District, a nine-block area of
converted 19th century brick warehouse buildings which grew into a mixed-use neighborhood in
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the 1980’s and 1990’s. With a variety of residential and commercial tenants, the signature of the
Leather District is its distinct architecture of ground floor display windows and cast iron
columns.
C.
Regulatory, Environmental & Structural Issues. Various regulatory,
environmental, and structural issues which encumber the Parcel will determine the location or
locations within the Parcel which are feasible for the construction of outdoor advertising
structures. MassDOT intends to license only those portions of the Parcel and associated property
rights necessary to permit, finance, construct, and maintain the outdoor advertising structures
proposed. Licensee shall be solely responsible, including financially responsible, to obtain any
and all applicable federal, state and city permits, approvals, licenses and reviews necessary for its
proposed use.
1. Zoning: The Parcel is subject to City of Boston zoning. With regard to Parcel 27, Article
43 of the Zoning Code (Chinatown District) with Zoning Maps 1C/1G/1N set forth the
current zoning.
2. Massachusetts Office of Outdoor Advertising: The Office of Outdoor Advertising is
charged with regulating and controlling, the erection and maintenance of off-premise
billboards, signs and other advertising devices in the Commonwealth. Licenses are
issued to firms and individuals wishing to engage in the business of outdoor advertising,
and permits are issued on an annual basis for the erection and maintenance of signs, in
accordance with 700 CMR 3.00, et seq.
3. State Highway Layout: Outdoor advertising will only be permitted on portions of the
Parcel which are excluded from the State Highway Layout (the “SHLO”). The portion of
the Parcel which is excluded from the SHLO is conceptually illustrated in Figure 4.
4. Notice of Restriction Upon Use (the “NORUU”): A portion of the Parcel is subject to a
Notice of Restriction Upon Use (the “NORUU”) agreement between MassDOT and the
Massachusetts Department of Environmental Protection (MassDEP). While outdoor
advertising on the NORUU portion of the Parcel is a permitted use, the restrictions would
require MassDOT and MassDEP to negotiate and agree upon a Release Abatement
Measure (RAM) plan and would impact the handling of any materials removed. The
portion of the Parcel covered by the NORUU is illustrated in Figure 4 in Red.
5. Existing Conditions: The Parcel will be licensed subject to any existing easements,
encumbrances or other rights with respect to utilities, Central Artery facilities, and the
access road that will continue to occupy the site.
6. Foundation Design: Any outdoor advertising structure foundation design shall comply
with the latest design criteria for a billboard foundation; drawings and calculations must
be stamped by a MA registered PE and the foundation design must demonstrate that there
are no adverse impact to any Central Artery facilities nearby.
All information regarding site conditions provided in this RFP is intended for preliminary
planning purposes in the preparation of the Proposal in response to this RFP. It does not
represent definitive information for use in actual building design and construction, and
MassDOT is not responsible for the accuracy, currency, or completeness of this information.
The Selected Developer will be required to prepare the actual outdoor advertising structure
design in direct consultation with MassDOT staff and consultants, to make its own determination
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as to the feasibility of all aspects of the proposed development project, and to demonstrate that
feasibility to MassDOT and, as applicable, the FHWA.
D.
Development Goals. MassDOT seeks outdoor advertising concession to enhance
revenue while maintaining harmony with the local community. Proponents shall demonstrate the
ability to collaborate with MassDOT to deliver Highway Safety information and public service
announcements as deemed appropriate at the sole discretion of MassDOT. Proponents must
demonstrate robust support from the impacted communities. Proponents must demonstrate an
ability to ultimately deliver a fully permitted structure and erect said structure.
All proposals must provide good faith responses to the requirements of this section in order to be
deemed responsive. Failure to provide a response for each specific goal will result in a proposal
being deemed “non-responsive.”
Goal 1 – Maximize revenue to MassDOT.
Goal 2 – Maintain harmony with the local community.
Goal 3 – Develop new innovative advertising concepts, media and locations that will enhance the
experience of the travelling public and the reputation of MassDOT.
Goal 4 – Promote MassDOT in the community.
Goal 5 – Ensure the MassDOT retains control of advertising content.
Goal 6 – Promote community events, Public and Highway Safety.
E.
Bidders Qualifications & Deadline. Bids are due at MassDOT’s Office of Real
Estate and Asset Development by 2:00 PM, local time, on Friday, December 11, 2015 in
accordance with the submission requirements and selection process described below in Section
III. MassDOT reserves the right to select finalists, to seek additional information or revised Bids
for one or more bidders, to select a highest responsible bidder or bidders, to reject any or all
bids, to amend this RFP in any way, or to discontinue the RFP selection process altogether.
MassDOT will designate a Licensee who is the highest responsible bidder to demonstrate the
experience and capacity to:
•
•
•
Permit, construct, and maintain outdoor advertising structures on the Parcel;
Pay MassDOT the proposed Annual Fee;
Accomplish the Development Goals outlined in Section 1.D above.
MassDOT makes no representation or warranty as to the accuracy, completeness,
currency, and/or correctness of any of the information contained in or furnished pursuant
to this RFP. All interested parties should carefully review this RFP, particularly the
Reservations and Conditions set forth in Section IV below.
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II. LICENSE TERMS.
The License will include, without limitation, the general terms and conditions set forth below,
contained in the form of License included as Appendix A, and such other terms as determined by
MassDOT. Submission of a Proposal in response to this RFP shall constitute agreement by the
Proposer to the terms and conditions described in this section. MassDOT reserves its rights to
negotiate and/or change all terms of the License prior to execution.
Pursuant to current regulations of the Massachusetts Environmental Policy Act (“MEPA”),
MassDOT may not execute a License until the completion of any necessary MEPA review.
Upon selection of a prospective Licensee, MassDOT will enter into negotiations with such party
as to any and all aspects of its proposal including, without limitation, the License terms and
conditions. Terms and conditions of the License will include, without limitation:
A.
Term. The Term of the License will be for an Initial Term of ten (10) years, with a
mutual option to extend for one (1) Extended Term of ten (10) years. The License will be
terminable for cause, transportation purposes or certain casualties.
B.
License Fee. The License Fee payment shall be payable annually, in advance, on or
before the first day of each year of the Initial Term and, if applicable, the Extended Term. The
proposed License Fee should include a minimum guaranteed payment as well as a percentage fee
based on gross revenue. MassDOT shall evaluate the License Fee proposals on the basis of
maximizing revenue to MassDOT.
C.
Reserved Rights. MassDOT reserves the right to use, or to allow any third party to
install and operate in the Licensed Premises, wires, cables, conduits, inner ducts, and other
installations for utility and telecommunication facilities. MassDOT further reserves the right for
its employees, agents, grantees and assigns to enter upon the Licensed Premises for any purpose
deemed necessary by MassDOT’s Chief Engineer in connection with the construction,
maintenance or operation of the Metropolitan Highway System or other property of MassDOT.
D.
MassDOT Board of Directors, Secretary of Transportation or delegates.
To the extent required by statute and policy, approval of the License may be subject to approval
of the MassDOT Board, and the Secretary of Transportation or her delegates.
E.
Permits and Approvals. Licensee shall be solely responsible, including financially
responsible, to obtain any and all applicable federal, state and city permits, approvals, licenses
and reviews necessary for its proposed use.
F.
Local Real Estate Taxes. Licensee shall be solely responsible for the payment of
any and all local real estate taxes assessed in connection with its use of Parcel 27A.
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G.
Repair, Maintenance and Utilities. Licensee shall be solely responsible for any
and all repair, maintenance of the Licensed Premises and the provision of any necessary utilities
for its proposed use.
H.
Insurance, Indemnification and Hazardous Materials. Licensee must
provide insurance of types, in amounts, and with provisions to be specified by MassDOT.
Licensee shall indemnify MassDOT against all claims and liabilities that arise during the License
Term in connection with Licensee’s use, occupation and operation of the Licensed Premises,
including any claims or liabilities related to hazardous materials.
I.
Assignment and Sub License. Licensee will not be allowed to mortgage or assign
its interest in the Licensed Premises.
J.
Access and Inspection. MassDOT shall have the right to access and inspect the
Licensed Premises.
K.
Civil Rights Compliance. MassDOT’s policy is to further the goals of Executive
Orders 524 and 526. Each Proposer shall indicate that its firm and designated subcontractors, if
any, do not discriminate by segregation or otherwise against any person because of race, creed,
color, national origin, age, disability, sex, sexual orientation or veteran status in providing or
refusing to provide any person or persons the use of any facility including any and all services,
privileges, accommodations, and activities of the Proposer. Each Proposer also shall indicate that
it does not discriminate by segregation or otherwise against any employee or applicant for
employment because of race, color, creed, national origin, age, handicap or sex. Each Selected
Developer will be required to establish and develop civil rights policies and programs, consistent
with those of MassDOT, designed to prohibit discrimination, ensure equality of opportunity, and
to implement appropriate narrowly tailored affirmative action in all operations, particularly in the
areas of employment and public access in all matters related to its use of the Parcel.
L.
M.G.L. Chapter 62, Section 49A Certification. The License will require
Licensee to certify under pains or penalty and perjury that it is in full compliance with all the
laws of the Commonwealth relating to taxes, and has no outstanding payment or filing
obligations to the Commonwealth of Massachusetts Department of Revenue.
M.
Reservations. In addition to the reservations set forth in Section IV, MassDOT
reserves the right to alter, change and/or negotiate any and all aspects of the proposal, including
the terms of the License, after MassDOT has selected its prospective Licensee.
MassDOT makes the above information available to prospective bidders solely to facilitate
interested respondents’ independent investigations, examinations, due diligence reviews and
analyses of the Property. MassDOT makes no representation or warranty as to the accuracy,
completeness, currency, and/or correctness of any of the information contained in or furnished
pursuant to this RFP.
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III. SUBMISSION REQUIREMENTS
A. Submission Process and Procedures
1. Submission Schedule. The schedule for the submission process is shown below. MassDOT
reserves the right to change or amend this schedule at its sole discretion. Prior to the Bid Due
date, all parties who have requested a copy of this RFP in writing or by e-mail will be
notified of any changes.
Written Questions Due Date
5:00 p.m.
Friday, November 20th, 2015
Bid Due Date
2:00 p.m.
Friday, December 11th, 2015
Public Opening of Bids
2:30 p.m.
Friday, December 11th, 2015
2. Submission Procedures. Bids must be received at the MassDOT Office of Real Estate and Asset
Development by the time and date shown above as the Bid Due Date. All Bids must be sealed to
provide confidentiality of the information and to ensure that the Bids remain intact until MassDOT
opens them. Bids must be submitted to the following address:
Office of Real Estate and Asset Development
Massachusetts Department of Transportation
10 Park Plaza, Suite 5720
Boston, Massachusetts 02116
ATTN: Parcel 27A
Any Bids received after the time and date shown as the Bid Due Date will be returned
unopened. A Bid will be deemed to have been received only if and at the time that it is
delivered directly to the MassDOT Office of Real Estate and Asset Development, at the
address and suite shown above. Time-stamped receipts will be provided for hand-delivered
Bids. Bids may not be left at the main security desk of the State Transportation Building.
Bids will not be deemed to have been received if delivered to any other MassDOT office or
facility, or any other state or other agency. In light of security measures in place at the State
Transportation Building, Bidders should allow extra time to sign into the building when
delivering Bids. Bidders are responsible for determining and complying with all current
procedures for entering the State Transportation Building, including, without limitation,
providing necessary identification, prior to the Bid Due Date.
Bids submitted must contain all required forms and information, and must be in the format
described in this RFP section. Bids must be complete, and must provide sufficient
information for MassDOT to evaluate them. No additions or supplements to Bids will be
accepted after a Bid is submitted, unless specifically requested or allowed by MassDOT.
Once submitted to MassDOT, all Bids and accompanying materials are the sole property of
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MassDOT. All Bids are subject to the reservations and conditions contained in this RFP,
including, without limitation, those specified in Section IV of this RFP. Bids will be opened
publicly by MassDOT at the address shown above, at the time of the Public Opening of Bids,
as noted above.
3. Questions. All questions regarding this RFP or any matter relating to the RFP selection process must
be submitted by e-mail to:
MassDOT.RE@dot.state.ma.us
CC: Robin.Blatt@state.ma.us
with a subject line specifying:
“Parcel 27A questions”.
All questions must be received by MassDOT by the date and time noted above as the Written
Questions Due Date. Acknowledgement of receipt of email will be made to the questioner.
All questions received will be responded to by email only to those parties who have
requested the RFP in writing or by email or have submitted questions by email.
4. Deposits. MassDOT will require each Bidder to make a Fee Deposit, will require the
Selected Developer to provide a Selection Deposit at the time of selection, and reserves the
right to require the Selected Developer to provide a cash or cash equivalent deposit in
addition to the Selection Deposit to be held as a Performance Deposit.
a. Fee Deposit. MassDOT will require each Proposer to provide a Fee Deposit of Ten
Thousand Dollars ($10,000) to be submitted with the Proposals. The Fee Deposit shall be in
the form of a bank, cashier’s, or certified check drawn on a Massachusetts bank without
intervening endorsement made payable to the “Massachusetts Department of Transportation”
and is due at the time that a Proposer submits its Proposal(s). Fee Deposits will be held by
MassDOT in escrow and will be refunded (without interest) to all Proposers whose Proposals
are not selected. Upon selection, the Fee Deposit submitted by the Selected Developer will
be deemed fully earned and non-refundable by MassDOT, except as otherwise provided
herein. The Fee Deposit shall be applied by MassDOT against any and all out-of-pocket
expenses in connection with the preparation of this RFP and the negotiation and execution of
the License including, without limitation, survey, title, legal and engineering costs (the “Third
Party Costs”). If, at the time MassDOT selects the Selected Developer, MassDOT reasonably
believes that the amount of the Fee Deposit will be insufficient to pay the Third Party Costs,
then upon MassDOT’s request, the Selected Developer shall supplement its Fee Deposit by
the amount then requested by MassDOT. Furthermore, if, at the time of execution of the
License, MassDOT reasonably believes that the amount of the Fee Deposit will be
insufficient to pay for all Third Party Costs, then upon MassDOT’s request, the Selected
Developer shall supplement its Fee Deposit by the amount then requested by MassDOT. The
Fee Deposit will be deemed to be forfeited by the Selected Developer in the event that the
Selected Developer withdraws its Proposal and/or fails to execute a License within the
timeframes stipulated. Assuming the Fee Deposit is not forfeited, then any sum remaining
unexpended in the Fee Deposit will be returned to the Selected Developer (without interest)
upon issuance of the building or highway access permit, or in the event that: (i) MassDOT
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discontinues its selection of a Selected Developer prior to the execution of the License; or (ii)
the Developer Designation is terminated through no fault of the Selected Developer.
b. Selection Deposit. MassDOT will require the Selected Developer to provide a Selection
Deposit at the time of selection. The required Selection Deposit is Twenty-Five Thousand
Dollars ($25,000). The Selection Deposit shall be in the form of a bank, cashier’s or certified
check drawn on a Massachusetts bank without intervening endorsement made payable to the
“Massachusetts Department of Transportation.” Upon receipt by MassDOT, the Selection
Deposit will be deemed fully earned and non-refundable by MassDOT, except as otherwise
provided herein. The Selection Deposit will be deemed to be forfeited by the Selected
Developer in the event that the Selected Developer withdraws its Proposal and/or does not
proceed diligently to obtain any necessary approvals for site development, and/or if the
Selected Developer fails to execute the the License. The Selection Deposit will be returned
(without interest) to the Selected Developer in the event that: (i) MassDOT discontinues its
selection of the Selected Developer prior to the execution of the License; (ii) the FHWA,
Massachusetts Office of Outdoor Advertising, City of Boston or other necessary approvals
are not secured through no fault of the Selected Developer; or (iii) the Developer Designation
is terminated through no fault of the Selected Developer. Upon execution of the License by
MassDOT and the Selected Developer, the Selection Deposit will be applied to rent.
c. Performance Deposit. MassDOT reserves the right to require the Selected Developer to
provide a cash or cash equivalent deposit in addition to the Selection Deposit to be held as a
Performance Deposit. Upon receipt by MassDOT, the Performance Deposit will be deemed
fully earned and non-refundable by MassDOT, except as otherwise provided herein. The
Performance Deposit will be deemed to be forfeited by a Selected Developer in the event that
such Selected Developer withdraws its Proposal, does not proceed diligently to obtain any
necessary approvals necessary for site development, or fails to execute the License. The
Performance Deposit will be returned (without interest) to the Selected Developer in the
event that: (i) the FHWA, MEPA, City of Boston and/or other required approvals are not
secured through no fault of the Selected Developer; (ii) the designation is terminated through
no fault of the Selected Developer; or (iii) a License is executed by MassDOT and the
Selected Developer.
5.
Highest Responsible Bidder Selection. MassDOT reserves the right to change or amend
this process at its sole discretion in order to further the purposes of the RFP. Prior to the Bid
Deadline, all parties who have received a copy of this RFP will be notified, in writing, of any
changes. Subsequent to the Bid Deadline, only Bidders who have submitted Bids prior to the
deadline will be notified, in writing, by telephone, or by fax, of any changes. MassDOT will
select the presumptive highest responsible bidder for the Parcel, subject to the negotiation of
the License. MassDOT’s selection of the highest responsible bidder is subject to any and all
reservations contained in this RFP, including, without limitation, MassDOT’s right to (i)
reject all bids and/or re-advertise for bids and (ii) negotiate any and all aspects of the bid,
including, but not limited to, the terms of the License, after MassDOT has selected the
highest responsible bidder.
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B. Bid Submission Requirements
Each Bid must address all of the submission requirements called for in the RFP, and must be in the format
specified. Bidders must complete all of the schedules included in the RFP and provide all requested
information. Bidders are encouraged to address the submission requirements straightforwardly and
concisely.
1. Financial Information. The Bid package must include documentation to evidence Bidder’s ability to
pay the Bid price, all sources of financing, and/or any commitment letters from financial institutions,
or lenders.
2. MGL Chapter 7C, Section 38 Disclosure Statement. The Disclosure Statement form, included in
this RFP as Schedule A, must be completed, signed by an authorized officer of the Bidder, and
included with the submission of the Bid package.
3. Bid Form. The Bid Form, included in this RFP as Schedule B, must be completed in its entirety,
signed by an authorized officer of the Bidder, and included with the submission of the Bid package.
In particular, provide the amount of the proposed cash bid for the purchase of the Parcel.
4. Development Schedule. Provide a graphic conceptual schedule for the proposed development,
including start and finish times and duration for all development activities, including design,
permitting, financing, and construction.
5. Drawings. The Bid must include conceptual drawings of the outdoor advertising structures which
Bidder proposes to erect including site plans and elevations. The plans and elevations to be submitted
in the Proposal should be conceptual in nature. All plans and elevations included in the Proposals
should be included with the Proposals, and must be 11 by 17 inches in size. Larger drawings,
physical models, or computer graphics or models may be used by Proposers at interviews and
presentations, if desired, but are not required for the Proposals. Larger drawings and physical models
should not be submitted with the Proposals; computer models, if created, should be submitted with
the Proposals. Each drawing must be labeled to indicate key features of the Proposals and must
include a scale bar and north arrow where applicable. Each drawing must include the respondent’s
name and must be dated.
6. Bidder Officers and Owners. The Bid must list the officers and others with an interest in the Bidder:
a. For-Profit Corporation. If the Bidder is a corporation, list all officers, directors, and owners of
ten percent (10%) or more of the capital stock.
b. Non-Profit Corporation. If the Bidder is a non-profit corporation, list all officers, and directors
or board members. List any other entities that control or are controlled by the Bidder.
c. Non-corporation. If the Bidder is other than a corporation, list all persons or entities with an
interest of ten percent (10%) or more in the operations of the development entity, including the
title and percentage of the interest for each.
7. Evidence of Authority. Bidder must provide evidence of authority of the person signing the Bid
Form to submit the Bid on behalf of the Bidder. If the Bidder is a corporation, said Bidder must
include as part of its Bid package a duly executed resolution of its Board of Directors either
approving the particular Bid being submitted, or specifically authorizing and empowering a
designated agent of said corporation to bind the corporation in all matters involving, related to, or
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incidental to the submission of a Bid hereunder and, if accepted by MassDOT, the corporation’s full
performance under the terms of the RFP. A sample Clerk’s Certificate is included in this RFP as
Schedule C.
8. Additional Certifications. In order to substantiate compliance with a) Chapter 66A of the
Massachusetts General Laws regarding confidentiality and privacy; b) Section 49A of Chapter 62C of
the Massachusetts General Laws regarding taxes; and c) other matters deemed necessary or
appropriate by MassDOT, all of the certifications included in this RFP as Schedule D must be
completed and signed by an authorized officer or agent of the Bidder, and included with the
submission of the Bid package.
9. Qualification by Foreign Entities to Conduct Business in the Commonwealth. In the event that
the Bidder is not a Massachusetts entity, said Bidder must include as part of its Bid a statement
agreeing to make all necessary filings to qualify to conduct business in the Commonwealth of
Massachusetts prior to execution of the License. Although MassDOT does not require foreign entities
to qualify in Massachusetts prior to submitting a Bid, it is specifically understood and agreed that any
such entity will promptly take all necessary measures to become qualified to conduct business in
Massachusetts at its own expense, upon the written request of MassDOT without regard to whether
such entity is actually selected as the highest responsible bidder, and, in the event that such selection
is made, prior to conducting any business in the Commonwealth.
10. Financial Questions. Each Bidder must provide answers to the following questions in the Bid
package. Note that for purposes of these questions, “the Bidder” shall include: The Bidder; any
director, principal officer, partner, or owner of ten percent (10%) or more of stock or with an interest
of ten percent (10%) or more in the Bidder; or any partnership, corporation, or other entity with which
the foregoing are or have been affiliated. If “yes” is answered to any of these questions, describe the
circumstances in detail.
a. Bankruptcy. In the past ten (10) years, has the Bidder filed for bankruptcy or been declared
bankrupt?
b. Foreclosure. In the past ten (10) years, has the Bidder been the subject of a foreclosure
proceeding?
c. Loan default. In the past ten (10) years, has the Bidder defaulted on a loan?
d. License or Real Estate Contract default. In the past ten (10) years, has the Bidder been in
default of a license, or a contract or agreement for the purchase or sale of real estate, or had such
a license, contract, or agreement terminated due to the Bidder’s failure to comply with the terms
of the license, contract, or agreement?
e. Prohibition. Has the Bidder ever been prohibited from doing business with any government
agency?
f.
Felony. Has the Bidder ever been indicted for or convicted of a felony?
g. Illegal purpose. Has the Bidder ever been involved, affiliated, or in known contact with any
entity intending to utilize the subject property for an illegal purpose or with any entity, individual,
or member of any organized crime group or similar criminal enterprise?
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C. Selection Criteria
For purposes of the potential License of the Parcel/s, MassDOT defines a “responsible bidder” as one that
meets the selection criteria set forth below. All Bids deemed to be responsible will be evaluated according
to the numerical dollar value of the Bid. MassDOT will select the highest responsible bidder for the
Parcel, information contained in the Bids and MassDOT’s analysis of same.
MassDOT reserves the right to request additional information of any or all Bidders in writing and
to use that information in evaluating the Bids.
In evaluating the Bids, MassDOT will consider the following criteria:
1.
Responsible Bidders. For purposes of the RFP, MassDOT defines a “responsible bidder” as a Bidder
who meets the following minimum selection criteria:
a. Fee Deposit. Each Bidder will be required to provide a single Fee Deposit in the amount of Ten
Thousand Dollars ($10,000.00). For additional information concerning the Fee Deposit, see
Section III.A above.
b. Development Goals. All proposals must provide written responses to the requirements of
Section 1.D in order to be deemed responsive. Failure to provide a response for each specific
goal will result in a proposal being deemed “non-responsive.”
c. Financial Capacity. Each Bid must include information to demonstrate Bidder’s financial
capacity to pay the License fee to MassDOT in connection with its Bid, as described in Section
II.B. above. Such evidence of financial capacity should include, without limitation, cash or other
equities, all sources of financing, and any commitment letter(s).
d. Conformance with RFP Requirements. All Bids must be accompanied by a complete set of the
schedules referenced in this RFP and each Bidder must respond to all of the requirements set
forth in the RFP. Any Bidder who does not submit all of the requested schedules or does not
comply with the RFP’s submission requirements or whose responses to such submission
requirements are not satisfactory to MassDOT may be eliminated from consideration.
2. Determination of Highest Responsible Bidder. The highest responsible bidder will be determined
to be the bid with the highest dollar value (net present value) that also addresses all of the
development goals for the parcel.
PURSUANT TO THE ENABLING ACT, MASSDOT RESERVES THE RIGHT TO REJECT
ANY OR ALL BIDS.
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IV Reservations and Conditions
A. General Reservations
1.
MassDOT makes no representations or warranties as to the accuracy, correctness, currency, and/or
completeness of any or all of the information provided in or furnished pursuant to this RFP, or that
such information accurately represents the conditions that would be encountered on the Parcel and in
the vicinity, now or in the future.
2.
MassDOT reserves the right to extend, suspend, supplement, withdraw, or amend this RFP or the
RFP selection process or schedule for any reason, or for no reason, at any time. MassDOT shall not
be liable to any actual Bidder, potential Bidder, or the Selected Bidders for costs or expenses incurred
by them as a result of the issuance, extension, supplementation, withdrawal, or amendment of this
RFP or the process initiated hereby.
3.
MassDOT reserves the right to reject any Bid that does not include all requested schedules, that is not
submitted in conformance with this RFP or any amendments thereto, or that contains responses to the
submission requirements set forth in Section III of this RFP which are not satisfactory to MassDOT,
or to reject any or all Bids, in its sole discretion, for any reason or for no reason. MassDOT further
reserves the right to waive or decline to waive irregularities in any Bid when it determines that it is in
MassDOT’s best interest to do so, and to waive any defects in the RFP submission process when it
determines such defects are insubstantial or non-substantive.
4.
MassDOT reserves the right to revise the terms of the License with the Selected Bidder prior to
entering into the License. In the event that the Selected Bidder shall fail to execute the License as so
revised, then such Bidder shall be deemed in default under the RFP. In the event of any default by any
Selected Bidder hereunder, then in addition to MassDOT’s other rights hereunder, MassDOT may
proceed to select another Bidder as the Selected Bidder, terminate the RFP for either parcel, or begin
a new selection process.
5.
MassDOT reserves the right to discontinue its selection of any Bidder prior to the execution of the
License. MassDOT shall not be liable to any such Bidder for costs or expenses incurred by it as a
result of this discontinuance.
6.
MassDOT reserves the right to seek additional information from any or all Bidders. Until such time as
MassDOT has received Bids in response to this RFP and has received any and all additional
information and/or revised Bids that MassDOT may request pursuant to this RFP, such Bids shall not
be deemed to be complete.
7.
If any matter or circumstance under this RFP requires the consent or approval of MassDOT or that
such matter be satisfactory to MassDOT, then same may be granted, withheld, denied or conditioned
by MassDOT in the exercise of its sole discretion.
8.
If the outside date for the execution of the License contemplated under the RFP shall not fall on a
“Business Day” (a “Business Day” being defined as any day other than a Saturday, Sunday, day on
which commercial banks in Boston, Massachusetts are authorized or required by law to remain closed
or legal holiday recognized by MassDOT), then such date shall be extended to the next succeeding
Business Day.
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B. Severability
If for any reason, any section or provision of this RFP or any addendum to it is determined to be illegal,
invalid, or unenforceable under present or future laws or regulations, then the remainder of this RFP shall
not be affected thereby.
C. Conflict of Interest, Collusion
1.
By submitting a Bid under the RFP, a Respondent certifies that no relationship exists between the
Respondent and MassDOT or any officer, employee, or agent of MassDOT that constitutes a conflict
of interest or that may be adverse to MassDOT.
2.
By submitting a Bid under the RFP, a Respondent certifies that it has not acted in collusion with any
other Respondent or other entity doing business with MassDOT in a way that would constitute unfair
competition or that may be adverse to MassDOT.
3.
Note that “Respondent” as used herein means the respondent; any director, principal, officer, partner,
owner of an equity interest in the respondent, employee, agent or representative of the respondent; or
any partnership, corporation or other entity with which any of the foregoing is or has been affiliated.
D. Confidentiality
1.
Bidders should assume that all material submitted in response to this RFP will be open to the public.
To the extent allowed by Massachusetts public records laws, MassDOT will use best efforts not to
disclose or make public any pages of a Bid on which the Bidder has stamped or imprinted
“confidential.” Confidential data will be limited to confidential financial information concerning the
Bidder’s organization. MassDOT assumes no liability for disclosure or use of any information or
data.
2.
All information submitted in response to this RFP becomes the sole property of MassDOT, with the
exception of confidential financial information concerning the Bidder or its financial partners. No
Bidder has proprietary rights to any ideas or materials submitted in its Bid.
E. Respondent’s Responsibilities
1.
Respondents shall thoroughly familiarize themselves with the provisions of this RFP. Upon receipt of
this RFP, each Respondent shall examine this RFP for missing or partially blank pages due to
mechanical printing or collating errors. It shall be the Respondent’s responsibility to identify and
procure any missing pages.
2.
Respondents shall be entirely responsible for reviewing and verifying all zoning and other regulatory
requirements, title, environmental, engineering, and other information contained in or furnished
pursuant to this RFP regarding the Parcel. Any information contained in or furnished pursuant to this
RFP is included (or made available) as a matter of convenience only and MassDOT is not liable for
any mistakes, costs, expenses, damages, or other consequences arising from use of or reliance on this
information in any respect, and each Bidder, by submitting a Bid to MassDOT in response to this
RFP, expressly agrees that it shall not hold MassDOT or any of its respective officers, agents,
contractors, consultants, or any third party liable or responsible therefore in any manner whatsoever.
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FIGURES
Figure 1: Location Plan
Figure 2: Site Plan
Figure 3: Existing Billboard
Figure 4: Areas Excluded from State Highway Layout & Included in NORUU
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Parcel 27 RFP
Figure 1: Locus Plan
Parcel 27a
Parcel 27 RFP
Figure 2: Site Plan
Existing
Parcel 27 RFP
Figure 3: Existing Billboard
Parcel 27 RFP
Figure 4: Areas Excluded from State
Highway Layout & Included in the NORUU
(in red)
APPENDICES
A. Form License Agreement
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Appendix A: Form License Agreement
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OUTDOOR ADVERTISING LICENSE
This Outdoor Advertising License (this “License”) is made effective as of the ______ day
of _______________, 201__, by and between the MASSACHUSETTS DEPARTMENT OF
TRANSPORTATION, a body politic and corporate and public instrumentality of the
Commonwealth of Massachusetts created pursuant to, and acting under the authority of, Chapter
6C of the Massachusetts General Laws, as amended, having a principal place of business at Ten
Park Plaza, Boston, MA 02116 (“MassDOT”), as licensor, and __________________________,
a _________________________ having a principal place of business of ___________________
(“Licensee”), as licensee.
1. Reference Data. Reference in this License to any of the following terms shall have the
meaning set forth below:
1.1. Licensor (MassDOT):
Massachusetts Department of Transportation
Office of Real Estate and Asset Development
10 Park Plaza, Suite 5720
Boston, MA 02116
1.2. Licensee:
_______________________
_______________________
_______________________
1.3. Property:
A certain parcel of land in the City of Boston,
Massachusetts known as Parcel 27A, containing
approximately 4.67 acres, situated between Ramp F
and Ramp KK of the Massachusetts Turnpike, I-93
North, and the South Station Connector
1.4. Premises:
Certain locations on the Property shown on Exhibit
A attached hereto, which are to be used for the
Permitted Use
1.5. Permitted Use:
The Premises shall only be used for (a) installation,
maintenance, operation, repair and replacement of
advertising structures (“Structures”) and associated
signs (“Signs”) to be used for the periodic
placement of advertisements that satisfy the
requirements of Section 5.4, and (b) access and
utilities appurtenant to the Structures and Signs, all
as approved by MassDOT in accordance with this
License.
1.6. Commencement Date:
___________________
1.7. Installation Period:
The period commencing on the Commencement
Date and terminating on the date that is two (2)
months following the Commencement Date.
1.8. Fee Commencement Date: Date that is two (2) months following the
Commencement Date
1.9. Expiration Date:
The initial term of this License shall expire ten (10)
years from the Commencement Date, on
_________, 20__. Licensee shall have the right,
subject to the restrictions stated herein, to extend
the term for one (1) option period of ten (10) years.
1.10. License Fee:
The minimum fee that Licensee shall pay to
MassDOT for each year of the Term is
________________ (the “Guaranteed Annual
Fee”). This Guaranteed Annual Fee shall be
payable in four equal quarterly installments (the
“Guaranteed Quarterly Fee”) each year beginning
on the Fee Commencement Date through the
Expiration Date, and shall be payable in advance on
the first day of June, September, December and
March each year of the Term without demand.
Within ten (10) days of the due date of the
Guaranteed Quarterly Fee, Licensee shall pay to
MassDOT (the “Quarterly Percentage Fee”), the
difference between (a) the sum of the Gross
Revenues, as hereinafter defined, for the prior three
(3) months multiplied by _______________ and (b)
the prior Guaranteed Quarterly Fee already paid. If
the result of the foregoing computation is negative,
(i) no Quarterly Percentage Fee shall be due to
MassDOT from Licensee for that quarter, and (ii)
no refund of Guaranteed Quarterly Rent or other
payment shall be due to Licensee from MassDOT.
For purposes of calculating the Quarterly
Percentage Fee, “Gross Revenue” shall mean the
sum of all money and other goods and/or services of
value to the Licensee received and/or accrued by the
Licensee from each Sign on the Premises. Within
ten (10) days of the first day of each quarter of the
Term, Licensee shall furnish MassDOT with a
statement of Gross Revenue and a calculation of the
Quarterly Percentage Fee. Licensee shall maintain
books in accordance with generally accepted
accounting principles and permit MassDOT to
inspect its books upon five (5) days’ notice from
MassDOT.
1.11. Performance Bond:
On or before the Effective Date, Licensee shall
furnish to MassDOT a performance bond (or letter
of credit) written in favor of MassDOT in the
amount of the Guaranteed Annual Fee for the first
year of the Term as security for the faithful
performance by Licensee of all terms, covenants
and conditions of this License. Each license year
thereafter, the surety will be renewed in the amount
of the then-current license year’s Guaranteed
Annual Fee.
1.12. Force Account:
Licensee shall establish for the benefit of MassDOT
a force account in a form reasonably acceptable to
MassDOT in an amount estimated by MassDOT to
cover the reimbursement of all MassDOT costs
including, but not limited to, engineering review
and safety and inspection personnel.
2. Grant of License; Premises.
MassDOT hereby grants to Licensee the exclusive right and privilege to use the portion
of the Premises where the advertising Structures are placed and a non-exclusive right to use the
remainder of the Premises. Notwithstanding the foregoing, Licensee agrees that MassDOT and
its grantees and their respective contractors and agents shall have access at all times over the
Premises to reach any MassDOT facilities which may exist now or in the future near the
Premises for purposes of maintenance, repair, and replacement of MassDOT’s facilities.
The Premises are delivered to the Licensee and the Licensee accepts the Premises in their
present condition, “as-is”, it being agreed that the Licensee has had the opportunity to examine
and inspect the Premises in all respects, that MassDOT has made no representations or
warranties of any kind with respect thereto and that MassDOT shall have no obligation to do any
work on, or make any improvements to or with respect to, the Premises or the condition thereof.
3. Term.
This License shall commence on the Commencement Date and shall terminate on
____________, 20__ (the “Initial Term Expiration Date”), unless earlier terminated as provided
in this License. The period between the Commencement Date and the Initial Term Expiration
Date shall be referred to as the “Initial Term.” The period between the Commencement Date and
the Fee Commencement Date shall be referred to as the “Installation Period.” The Initial Term
together with any exercised Option Term (defined below) shall be referred to as the “Term.”
Upon expiration of the Initial Term, this License may be extended for one (1) option
period of ten (10) years from the Initial Term Expiration Date (the “Option Term”). The Option
Term will occur only if the Licensee chooses to exercise this option by giving written notice to
MassDOT no more than six (6) months prior to the end of the Initial Term and no less than three
(3) months prior to the end of the Initial Term. In order to exercise this option, the Licensee
must not be in default under this License at the time of option exercise or the commencement of
the Option Term. The terms and conditions of this License shall apply during the Option Term,
except that during the Option Term, there shall be no option to extend the Term of this License.
4. License Fee.
4.1. License Fee. During the Term, Licensee agrees to pay MassDOT the License
Fee, which shall be the sum of (a) the Guaranteed Annual Fee (as defined in Section 1.10), (b)
Quarterly Percentage Fees (as defined in Section 1.10), and (c) any additional sums due under
this License (“Additional Fees”). The License Fee shall be paid without set off, deduction,
demand or abatement.
The Guaranteed Quarterly Fee shall be payable in advance on the first day of each quarter
(each June 1, September 1, December 1 and March 1 of the Term), without demand or set-off, to
MassDOT and delivered to [Office of Real Estate and Asset Development, 10 Park Plaza,
Boston, Massachusetts 02116], or such other address as MassDOT may direct. The Quarterly
Percentage Fee shall be payable within ten (10) days of the first day of each quarter (by each
June 11, September 11, December 11 and March 11 of the Term), and shall be payable to
MassDOT at the same address as set forth in the immediately preceding sentence.
4.2. License Fee Commencement. The obligation to pay the License Fee under this
License commences on the Fee Commencement Date. During the Installation Period, no License
Fee shall be paid by Licensee.
4.3. Utility and Use Charges. Licensee shall pay as an Additional Fee to MassDOT
(or the appropriate utility company, taxing authority or other third party, if billed directly to
Licensee), all of Licensee’s utility charges, excise or personal property taxes, other charges
relating to the Premises and its use by Licensee, and all other charges specially assessed against
MassDOT as a result of Licensee’s occupancy and use of the Premises, whether payable initially
to MassDOT or to a third party. Licensee shall be responsible for paying all costs arising out of
the installation, use and/or maintenance of utilities, including but not limited to electricity. An
electric meter (or meters as necessary) shall be installed at Licensee’s expense before occupancy.
Upon MassDOT's request, Licensee shall promptly deliver to MassDOT receipts or other
evidence reasonably satisfactory to MassDOT evidencing payment of any Additional Fee
payable directly to third parties.
4.4. Late Payments. In the event any payment required to be paid to MassDOT
hereunder is not made when due, Licensee shall pay interest on such overdue amount at the rate
of one and one-half percent (1 ½ %) per month or the highest rate permitted by law, whichever is
less, commencing on the date that such payment is due.
4.5. Taxes. Licensee shall be solely responsible for the payment of any taxes, levies,
betterments, assessments, fees or charges, whether in existence on the date hereof or becoming
applicable during the Term, which may be assessed against Licensee or MassDOT which are
directly attributable to Licensee’s installations in, or use of, the Premises, or any personal property
or fixtures of Licensee located thereon (collectively referred to as “Taxes”). Licensee shall pay all
Taxes directly to the taxing authority before delinquency and before any fine, interest or penalty
shall become due or be imposed by operation of law for their nonpayment. Such payments shall
constitute an Additional Fee hereunder.
Licensee may contest, in good faith for its own account and at its own expense, the validity
or amount of any Taxes, provided Licensee shall notify MassDOT prior to such contest, shall
indemnify MassDOT against any resulting loss, cost and expense. Licensee shall not permit a lien
or encumbrance on the Premises by reason of failure to pay any Taxes.
4.6. Performance Bond/Letter of Credit. Upon execution of this License, Licensee
shall provide (as security conditioned upon the full and faithful performance of Licensee’s
covenants and obligations hereunder) to MassDOT a performance bond or letter of credit
acceptable to MassDOT with surety satisfactory to MassDOT, in an initial amount equal to the
first license year’s Guaranteed Annual Fee. Each license year thereafter the surety will be
renewed, by a source acceptable to MassDOT, in the amount of the then-current license year’s
Guaranteed Annual License Fee.
The performance bond must be secured through
insurance/bonding companies that are licensed by the Commonwealth of Massachusetts Division
of Insurance and have a Best’s rating of B+ or better, and must be in a form reasonably
acceptable to MassDOT.
5. Permitted Use.
5.1. Permitted Use. The Premises shall be used and occupied by the Licensee solely
for the Permitted Use defined in Section 1.5. Licensee’s use of the Premises shall be in
conformance with the terms and condition of this License and with applicable federal, state and
local laws, regulations and ordinances, including but not limited to those relating to safety. The
Licensee is prohibited from any use of the Premises not specifically permitted under this License
without prior written approval of MassDOT, which may be withheld in MassDOT’s sole
discretion.
5.2. Restrictions; Advertising Guidelines. All advertising must comply with
MassDOT’s Advertising Guidelines, as the same may be changed from time to time, pursuant to
Section 5.4. Among other restrictions, MassDOT is restricting the advertising of alcoholic
beverages, tobacco, and tobacco products on its property. If it is determined by MassDOT that it
is in the public interest to restrict advertising of any other products, this policy will apply to the
Premises and the activities of the Licensee. The Licensee will be notified and expected to make
best faith efforts to respond to the change in a timely fashion.
5.3. Structures and Signs: The cost of all of Licensee’s improvements to the
Premises (including, without limitation, the costs of construction of the Structures, the purchase
and installation of the Signs, and all costs associated therewith) shall be the sole responsibility of
Licensee. All Sign Structures, Signs and other improvements to the Premises shall be installed
by Licensee in accordance with Section 7.3. At the end of the Term, the ownership rights in the
Sign(s), Structure(s) and all lighting and attachments thereto shall, at MassDOT’s option, either
(a) revert to MassDOT, or (b) be removed and the Premises restored to their condition at the start
of the Term, at the Licensee’s sole expense. This Section 5.3 shall survive the termination of this
License.
5.4. Appearance and Character of Advertisements. All advertisements at any time
inserted or placed by the Licensee on the Signs shall be of a reputable character, and the
appearance of all advertisements shall be acceptable to and in accordance with MassDOT’s
standards for character and appearance of advertisements, and shall be subject to MassDOT’s
Advertising Guidelines, as they may be revised from time to time. MassDOT’s current
Advertising Guidelines are attached hereto and incorporated herein as Exhibit B. No libelous,
slanderous, or obscene advertisements may be accepted by the Licensee for display in or upon
MassDOT’s property and MassDOT will not accept such advertisements. MassDOT will not
accept advertisements containing alcohol-related content, violent criminal content, tobacco
promotion, firearms, profane content, promotional material that is harmful to juveniles, and
advertisements that denigrate groups based upon gender, religion, race, ethnic, or political
affiliation, handicap, military veteran status, race, color, creed, religion, ancestry, national origin,
age, sex or sexual orientation for display in and upon MassDOT’s property. Advertisements shall
be submitted in advance to MassDOT for review, at MassDOT’s request, or whenever the
Licensee reasonably believes such advertisements may be objectionable within the meaning of
this Section 5.4. Any advertisements determined by MassDOT to be objectionable shall be
removed by the Licensee within twenty-four (24) hours of notification of such determination. If
the Licensee shall fail to remove such advertisements, MassDOT, at the Licensee’s expense, may
forthwith remove the same without liability for such removal.
5.5. Use of Vacant Advertising Space. On the sign locations which are not
contracted for use by paid advertisers at any given time, MassDOT shall have the option to
display advertisements or announcements calculated to increase its revenues, public travel, or
goodwill, or for the reasons it determines to be in the public interest. If MassDOT desires to
exercise its option to post its own message, MassDOT shall notify Licensee and Licensee shall
produce, post and remove MassDOT’s advertising message. Pursuant to this Section 5.5, (i)
Licensee shall post advertisements for MassDOT at no charge for the space, and (ii) MassDOT
shall pay Licensee fair market price for production and installation of advertisements.
5.6. Public Service Announcements. Notwithstanding anything to the contrary in
this License, for digital Signs Licensee shall provide MassDOT with the greater of (i) five (5)
hours per four (4) week period and (ii) the amount required by the Office of Outdoor Advertising
Digital Regulations of free advertising for public service announcements by either MassDOT,
the Massachusetts Bay Transportation Authority (“MBTA”) or the municipality in which such
digital sign is located at no cost. Licensee also agrees to provide messages to MassDOT or
MBTA for use for emergency messages at no charge to MassDOT or MBTA. The cost of
producing art work for such public service announcements shall be borne by the entity posting
such announcements. Additionally, Licensee shall have the right to post public service
announcements, so long as such public service announcements do not interfere with paid
advertisements or the free advertising given to MassDOT and such public service
announcements are pre-emptible for same.
5.7. Rubbish and Cleanliness. Licensee shall promptly remove rubbish, relating
directly to the Licensee’s occupation of the Premises under the terms of this License, from the
Property and shall keep the Premises and surrounding areas free of such litter and obstructions at
all times. Licensee shall not store rubbish overnight on the Property, nor shall Licensee deposit
rubbish into any MassDOT trash receptacles or dumpsters or those provided to MassDOT’s
contractors which may be in the vicinity of the Premises without written approval of MassDOT.
MassDOT reserves the right to enforce the above provisions by all appropriate means.
5.8. Hazardous Waste Representation and Disclosure. Licensee shall not conduct its
business in any manner contrary to Federal, state or local environmental laws and regulations,
including, without limitation, an explicit covenant that Licensee shall not generate, store, handle
or dispose of any oil or any hazardous waste or hazardous substances in, on, about, of from the
Premises without the prior approval of MassDOT. Licensee shall remain in strict compliance
with Chapters 21C and 21E of Massachusetts General Laws and with the relevant Federal
environmental laws, as amended from time to time, as well as with the regulations promulgated
thereunder (hereinafter collectively referred to as the "Environmental Laws"). Licensee is, to the
best of its knowledge, not aware of the generation, storage, handling or disposal of any such
substance in, on, about, or from the Premises by any person or entity, (including itself), and
agrees to notify MassDOT promptly in the event that it becomes aware of any such generation,
storage, handling or disposal. For purposes of this License, the terms "oil", hazardous waste"
and "hazardous substance" shall have the meanings ascribed to them in the Environmental Laws
and shall be henceforth called “Hazardous Materials”.
MassDOT reserves the right to conduct from time to time an environmental audit of the
Premises. It shall be an Event of Default hereunder if the resulting audit report reveals noncompliance by the Licensee with any Environmental Laws. The Licensee hereby agrees to
indemnify, defend and hold harmless MassDOT and each of its officers, employees, agents and
contractors from and against any and all loss liability, damage, penalties and expenses, arising
directly or indirectly out of Licensee's failure to comply with any of the Environmental Laws.
As used in this paragraph, expenses shall include, but not be limited to, fines, costs associated
with administrative and judicial proceedings, attorneys' fees, costs arising from any lien on the
Premises, costs of any remedial actions, and business interruption resulting from any remediation
or any executive, administrative judicial order and any diminution of the value of the Premises.
This Section 5.8 shall survive the expiration or earlier termination of this License.
5.9. Environmental Cooperation. In the event that the presence of Hazardous
Material is discovered on the Premises during the Term that is not the result of Licensee’s
activities hereunder or during any previous occupancy of the Premises by Licensee, the Licensee
agrees to cooperate with MassDOT in the determination of the responsible party and the
implementation of any remediation required under the Environmental Laws. Such cooperation
may include the temporary adjustment or termination of the rights granted hereunder. MassDOT
shall not be responsible for any damages incurred by the Licensee as a result of the said
temporary adjustment but will make an equitable adjustment to the License Fee due during any
period of temporary adjustment.
6. Utilities.
MassDOT shall have no obligation to provide, but at its discretion may provide to
Licensee, access to utility or telecommunication service to the Premises. Licensee shall be solely
responsible for installation of any utility system required by Licensee, including MassDOT
metering requirements. Once Licensee has installed its utility system pursuant to the plans
approved by MassDOT, Licensee may use such utility system for the Term of this License.
Notwithstanding the preceding, if MassDOT reasonably determines that it is necessary for
transportation safety purposes, Licensee may be required to move said utility system at
Licensee’s sole cost.
7. Repairs, Maintenance and Improvements.
7.1. Licensee's Responsibilities. Licensee shall, at its sole cost and expense, keep
and maintain the Premises and every part thereof, all of Licensee's improvements, fixtures,
facilities, wiring and equipment therein, in first-class and lawful order, condition and repair.
Licensee shall promptly make all such replacements, restorations, renewals and repairs to the
Premises, whether ordinary or extraordinary, foreseen or unforeseen. Licensee shall maintain
and repair all utility systems serving the Structures and Signs. The Licensee will be responsible
for all costs associated with the Structures and Signs and financing the same.
7.2. Contracts for Improvements. All contracts for the construction, installation,
alteration or maintenance of the Signs and Structures shall require:
(a)
that all contractors and subcontractors provide labor that can work in
harmony with other elements of labor employed or to be employed at or
near the Premises;
(b)
insurance coverage and suretyship reasonably satisfactory to MassDOT;
(c)
that all contractors or subcontractors comply with all applicable provisions
of this License; and
(d)
performance bonds and payment bonds in form and substance satisfactory
to MassDOT.
7.3. Alterations. Licensee shall not make or permit to be made any alterations,
additions or improvements to the Premises without MassDOT's prior written consent. No Signs
or Structures may be erected, improved, repaired or altered until Licensee has submitted detailed
structural sign drawings and specifications to MassDOT for review and received the written
consent to said plans and specifications from MassDOT. Such submission of plans and
specifications shall include all of the items set forth on Exhibit C attached hereto. MassDOT
shall have up to sixty (60) days to review and approve plans. Plans must be stamped by a
registered civil engineer and include any necessary calculations certifying and demonstrating that
the Sign design and appurtenances thereto are 1) compliant with the latest edition of the
Massachusetts State Building Code, 2) compliant with all codes pertaining to, but not limited to,
wind loads, seismic design and snow loading, and 3) will not damage any building or structure
upon which such Sign and Structure is erected. Upon receipt of written consent from MassDOT,
the Licensee may begin improvement activities in accordance with any restrictions or conditions
that MassDOT may require. MassDOT's consent to alterations to the Premises shall create no
liability on the part of MassDOT for the alterations or for their compliance with any applicable
laws, ordinances, rules or regulations.
At MassDOT’s option, upon the expiration or earlier termination of this License, any and
all alterations to the Premises as a result of this License shall become a part of the Premises and
title thereto shall vest in MassDOT. This Section 7.3 shall survive the termination of this
License.
7.4. Fixtures and Equipment. Licensee agrees that any and all personal property,
vehicles, furnishings, fixtures, equipment (including, but not limited to, the Structures and Signs)
on the Premises (collectively, “Licensee’s Facilities”) shall be on the Premises at the sole risk
and hazard of the Licensee and those claiming through or under Licensee. Licensee agrees that if
the whole or any part of Licensee’s Facilities shall be destroyed or damaged by fire, water, theft,
vandalism, the leakage or bursting of water pipes, steam pipes, the operation of MassDOT’s
transportation system or otherwise, or from any other cause, said loss or damage will not be the
responsibility of MassDOT; except that MassDOT will not be indemnified or exonerated from
any liability caused by MassDOT's gross negligence or willful misconduct.
7.5. Permits, Licenses and Code Compliance. Licensee shall be responsible for
obtaining all required permits and licenses from federal, state and local authorities, and shall
conduct all of its activities in compliance with local, state and federal code requirements.
7.6. Sign Servicing Hours. The construction of Structures and/or installation,
placement, maintenance and removal of Signs, Structures and/or advertisements shall not disrupt
the operation of MassDOT’s transportation system or unreasonably inconvenience users of
MassDOT facilities.
7.7. Work In Harmony. Licensee agrees that in any work performed in or about the
Premises, it will employ only labor which can work in harmony with all other elements of labor
employed by MassDOT or employed in the area of the Premises.
8. Interference with Transportation Operations.
Licensee shall not interfere with the operation of MassDOT’s transportation system. It is
mutually agreed that the rights and privileges granted herein shall be exercised by Licensee
subject to the paramount right of MassDOT, in its absolute and uncontrolled discretion, to
operate, maintain and improve its transportation system. In keeping with this policy and
notwithstanding any other provisions herein contained, MassDOT reserves the right to terminate,
on thirty (30) days’ written notice, any and all rights and privileges appurtenant to this
occupancy of the Premises, either temporarily or permanently, either in whole or in part, if, in the
sole and absolute discretion of MassDOT, the interests of MassDOT in the maintenance of its
transportation system and/or the preservation of public safety requires the Property be closed in
its entirety or that a portion of the Premises licensed to Licensee be closed to Licensee’s use.
Licensee shall have no claim for loss or damage or otherwise on account of any such earlier
termination, including, without limitation, the right to receive any relocation payments
authorized under federal or state law; except as provided in this Section 8. During any
temporary interference (for more than forty-eight (48) hours) with Licensee’s ability to use one
or more Signs caused by MassDOT, Licensee’s Guaranteed Annual Fee shall be temporarily
adjusted downward. If at any time a portion of the Premises is permanently closed to Licensee,
the License Fee shall be appropriately adjusted downward. Except as provided in this Section,
MassDOT shall not be liable to Licensee for any compensation or reduction of the License Fee
by reason of inconvenience or annoyance, or for loss of business arising from any requirement
that MassDOT or any other party having the right to enter the area, (or the agent of MassDOT or
such party) enter the Premises for any of the purposes reserved to MassDOT herein.
9. Indemnification, Release and Insurance
9.1.
Indemnification. Licensee shall indemnify, defend and save MassDOT
harmless from and against any and all liabilities, losses, damages, costs, expenses (including
reasonable attorneys’ expenses and fees), causes of action, suits, claims, demands or judgments
of any nature whatsoever, including, without limitation, those related to oil and/or hazardous
substances (collectively “Claims”), that may be imposed upon or incurred by or asserted against
MassDOT by reason of any of the following occurrences:
(a)
any accident, injury to, or death of any persons or any damage to property
occurring on the Premises, or any part thereof arising out of or in any way
related to the activities of the Licensee hereunder or the exercise by the
Licensee of any rights or privileges hereby granted; or
(b)
the presence of any Hazardous Materials on the Premises which is a result
of the Licensee’s activities hereunder, or for which the Licensee is a
potentially responsible party as defined by applicable law; or
(c)
the placement or accidental release of any Hazardous Materials onto the
Premises (or other property of MassDOT adjacent to the Premises) by
Licensee or its employees, agents, contractors or consultants or by the
employees, agents, or consultants of Licensee’s contractors or
subcontractors; or
(d)
any use, condition, or occupation of the Premises or any part thereof by
Licensee; or
(e)
any failure of the Licensee to perform or comply with any of the terms
hereof or of any contracts, licenses or restrictions, statutes, laws,
ordinances or regulations affecting the activities allowed hereunder, or any
part thereof.
The provisions this Section 9.1 shall survive the termination or expiration of this License.
9.2.
Release. Licensee has inspected the Premises and decided that the Premises are
suitable for the uses the Licensee contemplates. Licensee assumes all the risk of entry onto the
Premises.
(a)
Licensee hereby releases MassDOT from any responsibility for Licensee’s
losses or damages related to the condition of the Premises, and Licensee
covenants and agrees that it will not assert or bring, nor cause any thirdparty to assert or bring, any claim, demand, lawsuit or cause of action
(whether by way of original claim, cross claim, counterclaim, contribution
claim, indemnification claim, third-party claim or any other Claim) against
MassDOT; including, without limitation, claims for response actions,
response costs, assessments, containment, removal and remedial costs,
governmental oversight charges, including any overhead or response
action costs incurred or assessed by DEP, fines or penalties, permit and
annual compliance fees, reasonable attorney and expert fees, natural
resource damages, property damages, including diminution in property
value claims, and personal injury damages and damages related to a
person’s death relating to, or arising from, the condition of the Premises.
(b)
In clarification of the above release and covenants of defense and
indemnification, and not in limitation of them, Licensee shall indemnify,
defend (at the option of MassDOT) and save MassDOT harmless from and
against any and all Claims related to the injury, illness or death of any
employee of Licensee or of an employee of Licensee’s contractors or
consultants; except if the Claim was solely the result of MassDOT’s gross
negligence or willful misconduct. It shall not be negligent to allow access to
the Property that is in substantially the condition it was in when Licensee
inspected the Premises before accepting this License.
Licensee shall obtain a written release of liability similar to the one in this
Section 9.2(b) (and including the language of Section 9.2(a)) in favor of
MassDOT from each of Licensee’s consultants and contractors before they
enter onto the Premises.
The provisions this Section 9.2 shall survive the termination or expiration of this License.
9.3.
Insurance. Prior to entry on the Premises pursuant to this License, Licensee and
its consultants and contractors shall provide MassDOT with a certificate or certificates of insurance
and shall, during the term hereof, renew and replace any expired certificate, evidencing the
insurance of the activities permitted hereunder, with companies that are reasonably acceptable to
MassDOT, as stated below, in which Licensee and others hereinafter specified are either additional
insureds as their interests may appear or named insureds and which provide minimum liability
coverage as follows:
(a)
Commercial General Liability Insurance
Commercial General Liability Insurance insuring the Licensee, MassDOT,
the Premises, Licensee’s consultants and all activities allowed hereunder
with minimum liability coverage for personal injury, bodily injury and
property damage with limits not less than One Million Dollars
($1,000,000.00) per occurrence and Three Million Dollars ($3,000,000.00)
in aggregate. Umbrella liability coverage with limits of not less than Ten
Million Dollars ($10,000,000.00) covering all work performed must also be
provided. This policy shall be written on an occurrence basis rather than on
a claims made basis. These policies shall name MassDOT as an additional
insured.
(b)
Worker's Compensation Insurance
Worker’s Compensation Insurance insuring all persons employed by
Licensee in connection with any work done on or about the Premises or the
Property with respect to which claims for death or bodily injury could be
asserted against MassDOT or the Premises with limits of liability of not less
than those required by Massachusetts General Laws Chapter 152, as
amended. The policy shall contain a clause waiving the right of subrogation
in favor of MassDOT. Each of Licensee’s subcontractors and consultants
shall have similar policies covering their employees.
(c)
Automobile Liability Insurance
Automobile liability insurance with limits of One Million Dollars
($1,000,000.00) covering all owned, non-owned, hired, rented or leased
vehicles of Licensee and its consultants and contractors, which are not
covered under the Licensee’s Commercial General Liability Insurance and
which may enter into the Premises or other MassDOT owned property.
(d)
Insurance During Construction and/or Installation
A Builder’s All Risk insurance policy is required during periods of
construction and/or installation.
The required insurance coverage hereinbefore specified shall be placed with insurance
companies licensed by the Massachusetts Division of Insurance to do business in the
Commonwealth of Massachusetts and having a Best’s rating of B+ or better; shall be taken out
before the License is commenced and be kept in full force and effect throughout the Term of the
License; shall be primary to and non-contributory to any coverage maintained by MassDOT; and
shall require that MassDOT be given at least 30 days advance notice in the event of any
cancellation or materially adverse change in coverage. All such required insurance shall be
written on an occurrence basis form, as opposed to a claim made basis form. MassDOT and
MADOT shall be named as an additional insured under the Commercial General Liability,
Automobile Liability, Umbrella, and Builder's Risk Insurance Policies. The Workers'
Compensation Insurance Policy shall include a waiver of subrogation in favor of MassDOT
which precludes these insurers from being able to make any subrogation claims against
MassDOT. All such insurance as is required of the Licensee shall be provided by or on behalf of
all subcontractors to cover their operations performed. The Licensee shall be held responsible for
any modifications, deviations or omissions in the compliance with these requirements by the
subcontractors. At the Commencement Date and throughout the Term, MassDOT shall be
provided with original certificates of insurance evidencing that such insurance policies are in
place and provide coverage as required. Licensee shall be responsible for seeing that its
contractors and consultants are properly covered by insurance.
In the event of the cancellation of any policy during the term of this License, or the failure to
keep in effect the insurance required by this section, MassDOT may, without further notice and
at its option, procure or renew such insurance on the account of the Licensee. Licensee agrees to
repay such MassDOT expense, with interest thereon at the rate of eighteen percent (18%)
annually (or the maximum amount of interest allowed by law, whichever is less) from the date of
the expenditure by MassDOT as an Additional Fee.
10. Default and Termination.
In the event that Licensee shall neglect or fail to pay any part of the License Fee specified to
be paid upon the due date hereunder, Licensee shall be in default and MassDOT shall have the right
at any time thereafter to terminate this License by giving Licensee two (2) weeks written notice of
MassDOT’s decision to terminate for non-payment of any sum due (“Termination Notice”).
Licensee shall not be entitled to cure any such default by tendering payment after the expiration of
the two (2) week grace period which starts upon Licensee’s, or Licensee’s servants, agents or
employees, receipt of (or refusal to accept) the Termination Notice. Upon any such failure to pay
after the second Termination Notice sent in any twelve (12) month period, MassDOT may
terminate this License upon notice to Licensee with no right of Licensee to cure such second
default.
If Licensee:
(1)
fails to perform or observe any of the other covenants or obligations contained in
this License and on its part to be performed or observed, or
(2)
makes any assignment for the benefit of creditors or files petition for relief under
bankruptcy law, or
(3)
if such petition is filed against Licensee and not dismissed within sixty (60) days,
or
(4)
should the estate of Licensee be taken by process of law, proceeding in
bankruptcy or insolvency or otherwise,
and such defaults continue after thirty (30) days’ written notice given by MassDOT to Licensee
to cure, MassDOT may terminate this License and may enter into the Premises and repossess the
Premises and expel Licensee and those claiming through or under Licensee and remove
Licensee's effects without being deemed guilty of any manner of trespass and without prejudice
to any remedies which might otherwise be available for such breach of covenant, and, upon entry
as aforesaid, the rights of Licensee created by this License shall terminate. Notwithstanding the
preceding, if Licensee begins to cure a default as soon as possible within said thirty (30) day period
and thereafter continues to pursue a cure with all due diligence, then MassDOT shall not terminate
this License until and unless Licensee ceases to pursue a cure with all due diligence and has not in
fact cured said default. Licensee agrees to pay any cost and expense, including reasonable
attorney's fees incurred by MassDOT in enforcing any of Licensee's obligations under this
License.
Any required performance bond shall be structured to permit MassDOT to collect from
the surety when Licensee is in default hereunder.
Furthermore, in the event that this License is terminated under any of the foregoing
provisions, (except for termination by MassDOT for transportation purposes) Licensee
covenants, as an additional and cumulative obligation after any such termination (1) to pay to
MassDOT all the sums due under this License and (2) to perform all the obligations which
Licensee covenants in this License to perform, both in the same manner and to the extent and at
the same time as if this License had not terminated. In calculating the amounts to be paid by the
Licensee under the preceding sentence, Licensee shall be credited with any License Fee actually
obtained by MassDOT relating to the Premises, after deducting the expenses of collecting the
same.
Nothing herein contained shall, however, limit or prejudice the right of MassDOT to
prove and obtain in proceedings for bankruptcy or insolvency or reorganization or arrangement
with creditors as liquidated damages by reason of such determination an amount equal to the
maximum allowed by any statute or rule of law in effect at the time when, and governing the
proceedings in which, such damages are to be proved, whether or not such amount be greater
than, equal to, or less than the amounts referred to above. Licensee shall not be entitled to offset
or withhold License Fee payments for any claimed breach by MassDOT hereunder.
In the event that it is unlawful to permit advertising at the Property, this License shall be
terminated upon notice from MassDOT to Licensee and Licensee shall be entitled to a refund of
any License Fees prepaid for periods after the effective termination of this License.
11. Damage and Destruction.
11.1. Termination. In the event that the portion of the Premises where a particular
Structure or Sign is located is damaged by casualty, to the extent that MassDOT reasonably
determines that the relevant portion of the Premises is rendered unusable or not viable for the
Permitted Use for a period of one hundred twenty (120) days or more, either party shall have the
option to terminate use of the particular portion of the Premises effective as of the date of
damage by written notice to the other party within thirty (30) days from the date of such
determination and this License shall terminate for that portion of the Premises as if upon
expiration of the Term and an equitable adjustment shall be made to the License Fee. In the
event that neither party exercises its option to terminate the use of a particular damaged portion
of the Premises within the above period, Licensee shall promptly proceed to repair and restore
the affected portion of the Premises. All such repair and restoration work shall be completed in
accordance with the requirements of Section 7.
11.2. Repair and Restoration. In the event that a portion of the Premises is damaged by
casualty and MassDOT reasonably determines that that portion of the Premises continues to be
usable and viable for the Permitted Use, Licensee shall promptly repair any and all casualty
damage to the Premises, Licensee’s property and to any and all of its improvements. All such
repairs shall be completed in accordance with the requirements of Section 7.
11.3. Usable and Viable. MassDOT's reasonable determination of usability or viability
may be made based on any factors that MassDOT (after obtaining input from the Licensee)
determines has or may have an impact upon MassDOT, MassDOT’s operations or Licensee’s
operations. It shall not be unreasonable for MassDOT to determine non-viability if (1)
permitting Licensee to make repairs and restart operations at the Premises will require repairs to
property of MassDOT not then budgeted by MassDOT, or if (2) damages to other portions of the
Property result in MassDOT needing the Premises for its transportation system.
12. Equal Opportunity.
12.1. Equal Opportunity. With respect to its exercise of all rights and privileges herein
granted, Licensee shall undertake affirmative action as required by Federal and state laws, rules
and regulations pertinent to Civil Rights and Equal Opportunity unless Licensee is otherwise
exempted therefrom. Licensee agrees that it shall comply with any and all affirmative action
plans submitted pursuant to the directives of any federal agency and in accordance with federal
law.
12.2. Non-Discrimination Policy. Licensee shall not discriminate against any person,
employee or applicant for employment because of race, color, creed, national origin, age, sex,
sexual orientation, disability or military veteran status in its activities on the Premises, including,
without limitation, the hiring and discharging of employees, the provision or use of services and
the selection of suppliers, contractors, subcontractors or trades persons.
12.3. Minority, Female and Community Participation. Licensee shall take reasonable
steps to encourage and utilize minority and female business enterprises in its operation of the
Premises.
13. Miscellaneous.
13.1. Licenses and Permits. Licensee, at its own sole expense, shall obtain all
necessary approvals, permits and licenses for the use and occupancy of the Premises and any
other permit required for any construction or alteration thereof. MassDOT shall not be liable for
any loss, damage or expense resulting from the failure of any licensing or permitting authority to
grant permits or licenses for such purposes. In addition, Licensee shall specifically maintain in
good standing its license to operate an advertising business, if applicable, in the Commonwealth
of Massachusetts at all times during the Term.
13.2. Assignment or Sublicensing. Licensee shall not assign or sublicense all or a part
of the Signs or all or a part of the rights, privileges and interests granted herein except to
advertisers using the Signs. Licensee shall not assign or sublicense any or all of the Signs or all
the rights, privileges and interests granted herein, without obtaining, for each occasion the prior
written consent of MassDOT, which consent may not be unreasonably withheld. Any attempted
assignment or sublicensing in whole or in part of the rights, privileges and interests granted
without the prior written consent of MassDOT shall render this License null, void and of no
further force or effect. Should consent be granted by MassDOT, Licensee shall remain primarily
liable under this License.
13.3. Compliance with Law. In all of its activities hereunder and in its occupancy of
the Premises, Licensee shall comply with all applicable federal, state and local laws, regulations
and ordinances. Licensee shall also comply with all reasonable regulations and directives of
MassDOT.
13.4. Waiver. No consent or waiver, expressed or implied by MassDOT to or for any
breach of any covenant, condition or duty of Licensee shall be construed as a consent or waiver
to or for any other breach of the same or any other covenant, condition or duty.
13.5. Notice. Whenever by the terms of this License, notice shall or may be given
either to MassDOT or to Licensee, such notices shall be in writing and shall be hand-delivered or
sent by registered or certified mail, postage prepaid:
If intended for MassDOT, addressed to:
Massachusetts Department of Transportation
Office of Real Estate and Asset Development
10 Park Plaza, Suite 5720
Boston, Massachusetts 02116
Attn.: Assistant Secretary for Real Estate and Asset Development
with a copy to:
Massachusetts Department of Transportation
Office of the General Counsel
10 Park Plaza, Suite 3510
Attn.: Deputy General Counsel, Real Estate
(or to such other addresses as may from time to time hereafter be designated by MassDOT by
like notice);
If intended for Licensee, addressed to Licensee at the address set forth above in Section
1.3 (or to such other address or addresses as may from time to time hereafter be designated by
Licensee by like notice).
All such notices shall be effective upon receipt or failure to accept delivery.
13.6. Consents. Whenever in this License the consent or approval of either party is
required, such consent or approval shall be in writing, signed by an officer or agent thereunto
duly authorized by the party granting such consent or giving such approval.
13.7. Covenants Separate and Independent. Each and every covenant and license
contained in this License is, and shall be construed to be, a separate and independent covenant
and license, and the breach of any such covenant or license by any party shall not discharge or
relieve the other party from its obligation to perform hereunder. If any term or provision of this
License or the application thereof to any person or circumstance shall to any extent be judged
invalid and unenforceable, the remainder of this License or the application of such term or
provision to persons or circumstances other than those as to which it is so judged invalid or
unenforceable, shall not be affected thereby, and each term and provision of this License shall be
valid and shall be enforced to the extent permitted by law.
13.8. Effects of Covenants. All of the covenants, conditions and obligations contained
in this License shall be binding upon and shall inure to the benefit of the heirs, executors,
administrators, successors or assigns of the respective parties to the same extent as if each such
heir, executor, administrator, successor or assign were in each case named as a party to this
License.
13.9. Modification. This License may not be modified or amended except by a writing
signed by MassDOT and Licensee.
13.10. Governing Law. This License shall be governed, construed and interpreted in
accordance with the laws of the Commonwealth of Massachusetts.
13.11. Cumulative Remedies. The specific remedies to which MassDOT and Licensee
resort under the terms of this License are cumulative and are not intended to be exclusive of any
other remedies or means of redress which it may be lawfully entitled to seek in case of any
breach or threatened breach by Licensee or MassDOT of any provisions of this License.
13.12. Surrender. No act or thing done by MassDOT during the Term shall be deemed
an acceptance of a surrender of the Premises and no surrender shall be valid unless in writing
signed by MassDOT. The delivery of keys to any employee of MassDOT or of MassDOT's
agents shall not operate as a termination of the License or a surrender of the Premises. Upon
termination of this License or upon expiration of the Term, Licensee shall surrender, free and
clear of all liens and encumbrances, and redeliver the Premises to MassDOT, in original
condition (or, at MassDOT’s option, as improved during the Term), reasonable wear and tear
excepted. Any personal property which shall remain on the Premises after the expiration or
earlier termination of this License shall be deemed to have been abandoned by Licensee, and
either may be retained by MassDOT as its own property or may be disposed of by sale, storage
or otherwise as MassDOT may see fit, all at Licensee's expense.
13.13. Holding Over. If Licensee shall, with the express written consent of MassDOT,
hold over after the expiration of the Term, the resulting occupancy shall be treated as a month-tomonth occupancy. Licensee shall pay monthly any Additional License Fees due hereunder.
Licensee shall remain bound by the terms of this License. Any holding over by Licensee after
the expiration of the Term of this License without MassDOT's express written consent shall be
treated as an occupancy at sufferance, and Licensee shall be liable to pay monthly an occupancy
charge equal to three (3) times the Guaranteed Annual Fee due for the last month of the Term
hereof or any Percentage Fee due hereunder, whichever is greater. Any holding over, even with
the consent of MassDOT, shall not constitute an extension or renewal of this License. This
Section 13.13 shall survive the termination of this License.
13.14. Self-Help. If Licensee shall default in the observance or performance of any term
or condition of this License, MassDOT, without being under any obligation to do so and without
thereby waiving such default, may remedy such default at the expense of Licensee, immediately
and without notice in case of emergency, or in any other case, if Licensee shall fail to remedy
such default within the time set forth in this License. In the event MassDOT exercises such
right, Licensee shall pay to MassDOT immediately upon demand all of MassDOT's reasonable
cost of performing the same, including, without limitation, reasonable attorney's fees and a
reasonable administrative charge. Such payment shall constitute an Additional Fee hereunder. It
shall be reasonable for MassDOT to be reimbursed for the costs of its employees used in
remedying any such default, where the formula used in determining the cost of an employee is
calculated in the same way as the cost for third-party use of MassDOT safety personnel.
13.15. Entry by MassDOT; Reserved Rights. MassDOT and its authorized
representatives may enter upon the Premises for the purposes of accessing the Property and
adjacent transportation system components and/or inspecting the condition of Premises at any
time and may, with reasonable notice, enter upon the Premises to exhibit the same to prospective
licensees or in order to make necessary repairs, alterations, additions or improvements thereto if
Licensee fails to do so as required hereunder (but MassDOT shall have no duty whatsoever to
make any such inspection, repairs, alterations additions or improvements). MassDOT also
reserves the right to enter upon the Premises for any purpose deemed necessary by MassDOT’s
Chief Engineer in connection with the construction, maintenance or operation of the
Metropolitan Highway System or other property of MassDOT. MassDOT further reserves the
right to use, or to allow any third party to install and operate in the Premises, wires, cables,
conduits, inner ducts, and other installations for utility and telecommunication facilities.
13.16. Disclosure of Beneficial Interest.
In compliance with the provisions of
Massachusetts General Laws Chapter 7C, Section 38, upon execution of this License, Licensee,
and upon assignment or sublicensing any assignee or sublicensee, shall file a signed statement as
to the holders of all beneficial interests under this License with MassDOT, a form for which is
attached hereto as Exhibit D and shall provide MassDOT with a copy thereof. Licensee agrees
to deliver a revised form to all said parties within ten (10) days of a change in the beneficial
interests in Licensee.
13.17. Certification of Compliance. In compliance with the provisions of Massachusetts
General Laws Chapter 62, Section 49A and Executive Order No. 481, upon execution of this
License, Licensee, and upon assignment or sublicensing any assignee or sublicensee, shall
provide MassDOT with a signed statement as to compliance with certain laws of the
Commonwealth of Massachusetts, a form for which is attached hereto as Exhibit E.
13.18. No Personal Liability. No member, director, or officer, contractor, employee, or
agent of MassDOT shall be charged personally or held contractually liable under any terms or
provisions of this License or because of any breach thereof or because of the execution of this
License.
13.19. Limitations on Damages. MassDOT shall not be liable to Licensee for any loss of
business or any indirect, incidental, special, consequential or exemplary damages or lost profits.
13.20. Work in Harmony. Licensee agrees that in the use of the Premises or any work
performed in or about the Premises, it will employ only labor which can work in harmony with
all elements of labor employed at the Property and on MassDOT’s transportation system.
13.21. Mechanic's Liens. Licensee agrees to immediately discharge (either by payment
or by the filing of the necessary bond, or otherwise) any mechanics’, materialmen's or other liens
against the Premises and/or MassDOT's interest therein, which liens may arise out of any
payment due for, or purported to be due for, any labor, services, materials, supplies or equipment
alleged to have been furnished to or for Licensee in, upon or about the Premises.
13.22. Licensee’s Authority. Licensee represents, warrants and covenants that (i)
Licensee is a __________ duly organized, validly existing and in good standing under the laws
of the state in which it was organized, (ii) the execution, delivery, and performance of this
License and the transactions contemplated herein are within the power and authority of the
Licensee and have been duly authorized by all necessary proceedings and do not and will not
violate or contravene any provision of Licensee’s [charter document or by-laws]; and (iii) the
person or persons executing this License on its behalf have been duly authorized to do so.
13.23. No Waiver. No failure by MassDOT to insist upon strict performance of any
term, covenant or condition hereof, or to exercise any right or remedy consequent upon a breach
thereof shall constitute a waiver of any such breach or of any such term, covenant or condition.
The acceptance by MassDOT of any amount less than the full amount due to MassDOT
hereunder shall not be deemed a waiver by MassDOT of its right to collect the full amount due.
Licensor may deposit checks or drafts that state “final payment”, “payment in full” or the like
without being deemed to have waived its right to receive all amounts due hereunder. Any waiver
by MassDOT of any term, covenant or condition hereof shall not be effective unless such waiver
is in writing.
[Remainder of page intentionally blank. Signatures follow.]
This License is executed as of the date first above written.
Approved as to Form:
MASSACHUSETTS DEPARTMENT
OF TRANSPORTATION
By:
By:
Lauren D. Armstrong
Deputy General Counsel
Stephanie Pollack
Secretary and Chief Executive Officer
[LICENSEE]
By:
Name:
Title:
EXHIBIT A
PREMISES
[attach plan prepared by Licensee and approved by MassDOT]
EXHIBIT B
ADVERTISING GUIDELINES
Purpose
Through these Guidelines, MassDOT intends to establish uniform, viewpoint-neutral standards for the
display of advertising. In setting its advertising standards, MassDOT seeks to fulfill the following goals
and objectives:
(a)
(b)
(c)
(d)
maximization of revenue generated by advertising;
maintaining the safe and orderly operation of MassDOT;
maintaining a safe and welcoming environment for all MassDOT transportation system
users, including minors who travel on or come in contact with the MassDOT
transportation system; and
avoiding the identification of MassDOT or the Commonwealth of Massachusetts with
advertisements or the viewpoints of the advertisers.
MassDOT reserves the right, from time to time, to suspend, modify or revoke the application of any or all
of these Guidelines as it deems necessary to comply with legal mandates, to accommodate its primary
transportation function and to fulfill the goals and objectives referred to herein. All the provisions of these
Guidelines shall be deemed severable. These Guidelines shall apply to advertising on or in all MassDOT
property unless otherwise expressly provided by contract regarding premises covered by an alcoholic
beverages license.
MassDOT Operations and Promotions
MassDOT has the unqualified right to display, on or in its property, advertisements and notices that
pertain to MassDOT operations and promotions.
Disclaimer
MassDOT reserves the right, in all circumstances, to require that an advertisement on or in its property
include a disclaimer indicating that it is not sponsored by, and does not necessarily reflect the views of,
MassDOT.
Advertising Standards
(a) MassDOT intends that its property constitute nonpublic forums that are subject to the
viewpoint-neutral restrictions set forth below. Certain forms of paid and unpaid advertising
will not be permitted for placement or display on or in MassDOT property.
(b) MassDOT shall not display or maintain any advertisement that falls within one or more of the
following categories:
(i)
Demeaning or disparaging. The advertisement contains material that demeans
or disparages an individual or group of individuals. For purposes of
determining whether an advertisement contains such material, MassDOT will
determine whether a reasonably prudent person, knowledgeable of MassDOT
transportation system users and using prevailing community standards, would
believe that the advertisement contains material that ridicules or mocks, is
abusive or hostile to, or debases the dignity or stature of, an individual or
group of individuals.
(ii)
Tobacco. The advertisement promotes the sale or use of tobacco or tobaccorelated products, including but not limited to depicting such products.
(iii)
Alcohol. The advertisement advertises an alcohol product or a brand of alcohol
products.
(iv)
Profanity. The advertisement contains profane language.
(v)
Firearms. The advertisement either (a) advertises a firearm or a brand of
firearms, (b) contains an image of a firearm in the foreground of the main
visual or (c) contains image(s) of firearm(s) that occupy 15% or more of the
overall advertisement.
(vi)
Violence. The advertisement contains an image or description of graphic
violence, including but not limited to (1) the depiction of human or animal
bodies, body parts or fetuses, in states of mutilation, dismemberment,
decomposition or disfigurement, and (2) the depiction of weapons or other
implements or devices used in the advertisement in an act or acts of violence
or harm on a person or animal.
(vii)
Unlawful goods or services. The advertisement, or any material contained in
it, promotes or encourages, or appears to promote or encourage, the use or
possession of unlawful or illegal goods or services.
(viii) Unlawful conduct. The advertisement, or any material contained in it,
promotes or encourages, or appears to promote or encourage, unlawful or
illegal behavior or activities.
(ix)
Obscenity or nudity. The advertisement contains obscene material or images
of nudity. For purposes of these Guidelines, the terms “obscene” and “nudity”
shall have the meanings contained in Massachusetts General Laws ch. 272,
§31. 1
(x)
Prurient sexual suggestiveness. The advertisement contains material that
describes, depicts or represents sexual activities or aspects of the human
anatomy in a way that the average adult, applying contemporary community
standards, would find appeals to the prurient interest of minors or adults in
1
Mass. Gen. Laws ch. 272. §31, defines “obscene” as follows: “matter is obscene if taken as a whole it (1) appeals to the prurient
interest of the average person applying the contemporary standards of the county where the offense was committed; (2) depicts or
describes sexual conduct in a patently offensive way; and (3) lacks serious literary, artistic, political, or scientific value" Mass.
Gen. Laws. ch. 272, §31, defines “nudity” as follows: “uncovered or less than opaquely covered human genitals, pubic areas, the
human female breast below a point immediately above the top of the areola, or the covered male genitals in a discernibly turgid
state. For purposes of this definition, a female breast is considered uncovered if the nipple or areola only are covered.”
sex. For purposes of these Guidelines, the term “minor” shall have the
meaning contained in Massachusetts General Laws ch. 272, §31.2
(xi)
Political campaign speech. The advertisement contains political campaign
speech. For purposes of these Guidelines, the term “political campaign
speech” is speech that (1) refers to a specific ballot question, initiative petition,
or referendum, (2) promotes or opposes a political party for local, state, or
federal election, or (3) promotes or opposes a candidate or group of
candidates. For purposes of these Guidelines, the term “candidate” shall
include any person actively campaigning for office, any person who has filed
their candidacy or declared their intent to run for office, or any person who has
been reported in the mainstream media as likely to run for a particular public
office.
(xii)
Endorsement. The advertisement, or any material contained in it, implies or
declares an endorsement by MassDOT or the Commonwealth of any service,
product or point of view, without prior written authorization of MassDOT
(through its Secretary) or the Commonwealth (through the Secretary of the
Executive Office of Transportation and Construction).
(xiii) False, misleading, or deceptive commercial speech. The advertisement
proposes a commercial transaction, and the advertisement, or any material
contained in it, is false, misleading or deceptive.
2
(xiv)
Libelous speech, copyright infringement, etc. The advertisement, or any
material contained in it, is libelous or an infringement of copyright, or is
otherwise unlawful or illegal or likely to subject MassDOT to litigation.
(xv)
“Adult”-oriented goods or services. The advertisement promotes or
encourages, or appears to promote or encourage, a transaction related to, or
uses brand names, trademarks, slogans or other materials which are
identifiable with, films rated "X" or “NC-17,” video games rated M or AO,
adult book stores, adult video stores, nude dance clubs and other adult
entertainment establishments, adult telephone services, adult Internet sites and
escort services.
Mass. Gen. Laws ch. 272, §3 I, defines “minor’ as “a person under eighteen years of age.
EXHIBIT C
PLAN SUBMISSION REQUIREMENTS
The following are the requirements for submission to MassDOT by Licensee for approval prior
to commencement of construction or modification of structures for outdoor advertising signs.
MassDOT will evaluate each proposed site to identify which MassDOT departments are
impacted and whose concerns need to be addressed and notify Licensee of this information. For
each location, Licensee shall:
Submit six (6) sets of survey and engineering plans stamped by a Massachusetts
professional engineer
If a boring is required:
• Narrative of how the boring is proposed to be performed.
• Proposed equipment.
• Hours of work.
• Duration.
• How and at what time the boring rig is delivered and picked up.
• Provide any details related to the uniqueness of the specific location and how access
will be gained and the site secured (e.g. Removal and replacement of fencing, etc.)
Submit a complete package of documents clearly stating the assumptions and calculations,
and showing the exact relationship between Licensee’s project and MassDOT facilities on
both plans and sections with sufficient detail necessary to enable a complete review of the
elements of the billboard. The package must include:
• Survey plan of the location and surrounding area that is of appropriate scale.
• Structural drawings and calculations.
• Specifications of materials.
• Source of power, design, route of conduit and materials.
• A list of reference drawings upon which assumptions and calculations were based.
Details of proposed means and methods to perform ALL work.
• Specifications of equipment.
• Identification of work zones (both while working and not)
• Impact plan for the use of cranes and rigs including loads, and fall zones as it relates
to any right of way.
• Proposed hours of operation.
• Upon receipt of any MassDOT review comments, Licensee shall provide a written
resubmission addressing all MassDOT comments within thirty (30) days of its receipt
of such comments, unless Licensee believes addressing MassDOT comments make
the location unviable, in which case it will so notify MassDOT with thirty (30) days.
EXHIBIT D
CHAPTER 7C, SECTION 38 DISCLOSURE STATEMENT
For the purposes of disclosure pursuant to the Massachusetts General Laws, Chapter 7C, Section
38, the undersigned does hereby provide the following statement giving the true names and
addresses of all persons who have or will have a direct or indirect beneficial interest in the real
property defined as the “Premises” in the license to which this document is attached.
Notwithstanding the foregoing, a corporation which is listed for sale to the general public
with the Securities and Exchange Commission need not disclose the name and address of
any stockholder holding less than ten percent (10%) of the outstanding stock of the
corporation. If there are no such persons, the undersigned has indicated by inserting the word
“NONE” in the space below.
Name
Address
______________________________
__________________________________________
______________________________
__________________________________________
______________________________
__________________________________________
Note: If necessary, please attach additional names and addresses on a separate sheet of paper
referencing this Statement.
This Disclosure Statement is signed under the pains and penalties of perjury on this __________
day of ________________, 201__ by the duly authorized __________________ of the
undersigned:
[LICENSEE]
By:
__________________
Name: __________________
Title: __________________
EXHIBIT E
CERTIFICATION OF COMPLIANCE
___________________________________ [Licensee], whose principal place of business is
located at _________________________________ certifies, as a requirement of entering into
the License to which this Certificate is attached for the premises described therein, as follows:
1. The following provisions of this certification are ancillary to the License and will be
and are binding upon Licensee as if literally included among the provisions of the
License.
2. Licensee must not and will not knowingly use undocumented workers in connection
with Licensee’s performance under the License.
3. Pursuant to federal requirements, Licensee must and will verify the immigration status
of all workers assigned to Licensee’s performance under the License without engaging in
unlawful discrimination, and Licensee must not and will not knowingly or recklessly
alter, falsify, or accept altered or falsified documents from any such worker.
4. Licensee is aware that any breach of item 2, item 3, or both item 2 and item 3 during
the term of the License may be regarded as a material breach of the License, subjecting
Licensee to sanctions, including by way of example only and not limitation, suspension
or termination of the License, and any other remedy available to the Massachusetts
Department of Transportation under the License, at law, or in equity.
5. Licensee has complied with all laws of the Commonwealth of Massachusetts relating
to taxes, reporting of employees and contractors, and withholding and remitting of child
support and Licensee is in good standing with respect to all returns due and taxes payable
to the Commonwealth of Massachusetts.
Signed under the penalties of perjury on _______________________, 201__.
[LICENSEE]
By:_______________________________________
Name:
Title:
SCHEDULES
A. MGL Chapter 7C, Section 38 Disclosure Statement
B. Bid Form
C. Clerk’s Certificate
D. Additional Certifications
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Schedule A: Chapter 7C, Section 38 Disclosure Statement
DISPOSITION OF REAL PROPERTY
For the purposes of disclosure pursuant to the Massachusetts General Laws, Chapter 7C, Section
38, the undersigned (the “Bidder”) does hereby provide the following statement giving the true
names and addresses of all persons who have or will have a direct or indirect beneficial interest
in the real property defined as CA/T Parcel 27A, located in Boston, Massachusetts, in that certain
Request for Proposals, dated October 2015, issued by the Massachusetts Department of
Transportation. If there are no such persons, the Bidder has indicated this by inserting the word
“NONE” in the space below.
Name
Address
__________________________________
____________________________________
__________________________________
____________________________________
__________________________________
____________________________________
Note: If necessary, plicense attach additional names and addresses on a separate sheet of paper referencing this
Statement.
This Disclosure Statement is signed under the pains and penalties of perjury on this _____day of
__________, 2015 by the duly authorized _____________ of the Bidder:
Name of Bidder: ________________________________________________________________
Signature: _______________________________________________ Date:
________________
Print Name: ___________________________________________________________________
Title: _________________________________________________________________________
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Schedule B: Bid Form
Reference is herein made to a certain Request for Proposals, dated October 2015 issued by the
Massachusetts Department of Transportation, relating to CA/T Parcel 27A, located in Boston,
Massachusetts (together with all figures, appendices, schedules, and addenda, the “RFP”). Initial
capitalized terms, unless otherwise defined herein, shall have the meanings assigned to such
terms in the RFP. The undersigned (the “Bidder”) affirms that it has read and fully understands
the terms and conditions set forth in the RFP, and hereby agrees to the terms and conditions
thereof.
1. The Bidder hereby irrevocably submits to MassDOT a Cash Bid for the License of Parcel
27A, subject to the terms and conditions of the RFP, in the annual minimum guaranteed
amount of:
a.
b.
c.
d.
e.
f.
g.
h.
i.
j.
_______________ Dollars ($_____________) in year 1 + __% of Gross Revenue
_______________ Dollars ($_____________) in year 2 + __% of Gross Revenue
_______________ Dollars ($_____________) in year 3 + __% of Gross Revenue
_______________ Dollars ($_____________) in year 4 + __% of Gross Revenue
_______________ Dollars ($_____________) in year 5 + __% of Gross Revenue
_______________ Dollars ($_____________) in year 6 + __% of Gross Revenue
_______________ Dollars ($_____________) in year 7 + __% of Gross Revenue
_______________ Dollars ($_____________) in year 8 + __% of Gross Revenue
_______________ Dollars ($_____________) in year 9 + __% of Gross Revenue
______________ Dollars ($_____________) in year 10 + __% of Gross Revenue
2. The Bidder herewith submits to MassDOT a Fee Deposit in the amount of Ten Thousand
Dollars ($10,000.00), to be held and disposed of in accordance with the RFP.
3. The Bidder agrees that all of the Bidder’s expenses related to the preparation of this Bid
for the License of CA/T Parcel 27A and (if applicable) the consummation of the
transaction contemplated hereby, including any costs related to any third party
representation engaged by the Bidder, are the Bidder’s sole responsibility.
Executed under seal by the duly authorized ______________ of the Bidder:
Name of Bidder: ____________________________________________________
Signature: ____________________________ Date: ________________________
Print Name: __________________________ Title: ________________________
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Schedule C: Clerk’s Certificate
(Applicable to all Corporations)
I, _________________________________________________, being the clerk of
___________________________________________________________, hereby certify that the
Bid submitted herewith has been authorized by the board of directors of said corporation, and
that the above signatures are those of duly authorized agents and/or officers of same.
Date: ______________
CORPORATE SEAL
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______________________
Clerk
Schedule D: Additional Certifications
Reference is herein made to a certain Request for Proposals, dated June 2014 issued by the Massachusetts
Department of Transportation (“MassDOT”), relating to the License of CA/T Parcel 27A, located in
Boston, Massachusetts (together with all figures, appendices and schedules, the “RFP”). Initial capitalized
terms, unless otherwise defined herein, shall have the meanings assigned to such terms in the RFP.
Chapter 66A (Confidentiality and Privacy)
The undersigned (the “Bidder”) acknowledges that, during the response and selection process for the RFP
and, if selected as the Selected Bidder, the Bidder’s performance under the License, the Bidder may
acquire or obtain access to “personal data” and become a “holder” of such “personal data” (as defined in
Chapter 66A of the Massachusetts General Laws (“Chapter 66A”)) or other information deemed
confidential by MassDOT. The Bidder shall comply with Chapter 66A and any applicable regulations
promulgated thereunder relative to confidentiality and privacy.
Chapter 62C, Section 49A (Tax Compliance)
Pursuant to M.G.L. Chapter 62C, Section 49A, the Bidder hereby certifies (a) under the pains and
penalties of perjury that the Bidder is in full compliance with all laws of the Commonwealth of
Massachusetts relating to taxes, reporting of employees and contractors and withholding and remitting
child support and (b) to the best of its knowledge and belief, it has no outstanding payment or filing
obligations to the Commonwealth of Massachusetts Department of Revenue.
Section 7 of Chapter 521, Acts of 1990 (Child Care Assistance)
Pursuant to Section 7 of Chapter 521, Acts of 1990, as amended by Chapter 329, Acts of 1991, and
regulations issued pursuant thereto, 102 CMR 12.00, the Bidder certifies under the pains and penalties of
perjury that the Bidder is in compliance with all laws of the Commonwealth of Massachusetts relating to
child care assistance, and if the Bidder is a qualified employer having fifty (50) or more full time
employees, has established a dependent care assistance program, child care tuition assistance, or on-site
or near site child care placement; or is an exempt employer.
Chapter 7, Section 22C (Northern Ireland Notice and Certification)
State agencies, state authorities, the House of Representatives or the state Senate may not procure goods
or services from any person employing ten or more employees in an office or other facility located in
Northern Ireland who fails to complete the certification required by M.G.L. c. 7, section 22C. The Bidder
certifies under the pains and penalties of perjury either that (check the applicable statement):
( ) the Bidder does not employ ten or more employees in an office or other facility in Northern Ireland;
OR
( ) the Bidder employs ten or more employees in an office or other facility located in Northern Ireland
and further certifies that:
1. the Bidder does not discriminate in employment, compensation, or the terms, conditions and privileges
of employment on account of religious or political belief, and
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2. the Bidder promotes religious tolerance within the work place, and the eradication of any
manifestations of religious and other illegal discrimination; and
3. the Bidder is not engaged in the manufacture, distribution or sale of firearms, munitions, including
rubber or plastic bullets, tear gas, armored vehicles or military aircraft for use or deployment in any
activity in Northern Ireland.
Conflict of Interest/Collusion Certification
The Bidder certifies under the pains and penalties of perjury that (a) no relationship exists between the
Bidder and MassDOT or any officer, employee, or agent of MassDOT that constitutes unfair competition
or a conflict of interest or that may be adverse to MassDOT; and (b) it has not acted in collusion with any
other Bidder or other entity doing business with MassDOT in a way that would constitute unfair
competition or that may be adverse to MassDOT.
Other Certifications
The Bidder certifies under the pains and penalties of perjury that the Bidder has filed with the Secretary of
State all certificates and annual reports required by law.
The Bidder certifies under the pains and penalties of perjury that the Bidder is not presently debarred or
suspended from providing goods and/or services to the Commonwealth, or any other applicable
debarment or suspension provision under state law or any rules or regulations promulgated thereunder.
Signed under the pains and penalties of perjury on this ____ day of __________, 2015 by the
duly authorized _______________ of the Bidder:
Name of Bidder:____________________________________________________________
Signature: ____________________________________________________________________
Print Name: ___________________________________________________________________
Title: ________________________________________________________________________
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