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HomeMy WebLinkAboutCBE Companies, Inc.-6/16/2014CITY OF WATERLOO Council Communication City Council Meeting: June 16, 2014 Prepared: June 11, 2014 Dept. Head Signature: Eric Thorson, PE., City Engineer # of Attachments: SUBJECT: RIGHT-OF-WAY LICENSE AGREEMENT FOR CBE COMPANIES, INC. Submitted by: Eric Thorson, PE, City Engineer Recommended City Council Action: Approve right-of-way license agreement. Summary Statement CBE Companies, Inc. would like to place fiber optic cable in the right of way to connect the building at 301 Tower Park Drive to a building they are leasing a portion of at 233 Fisher Drive. This will allow them to network the communication system between the two sites. Expenditure Required NA Source of Funds NA Policy Issue NA Alternative NA Background Information 06'06/2014 08:32 3192343011 CBWH PAGE 03/11 RIGHT -OF -WAX LICENSE AGREEMENT SECTION 1. DEFINITIONS a "City" shall mean the City of Waterloo, Iowa and, where appropriate, shall include its officers, employees and agents. b. "Licensee" shall mean CBE Comvanies, Inc. or any of its designated subsidiaries. C. "Network Segment" shall mean the communications system to be laid, constructed, installed, repaired, maintained, and operated by Licensee within the corporate limits of the City of Waterloo as contemplated by this Agreement and shall include all equipment owned, operated, leased or subleased in connection with the operation of the Network Segment, including but not be limited to poles, pedestals, wires, pipes, cables, underground conduits, ducts, rnanholes, vaults, fiber optic cables, and other structures, facilities or appurtenan.ces. As of the date of this Agreement, the initial Network Segment route is generally depicted on Exhibit "A" attached hereto, and the parties agree that, for purposes of this Agreement, the initial Network Segment route consists of approximately 526 linear feet. d. "Public Improvements" shall mean any improvements as defined in Code of Iowa Section 26.2, including but not limited to paving, sidewalks, grass, vegetation, trees, street lights, traffic signals, water mains, sewers, electric transmission lines and equipment related thereto, and in addition public utilities, ou. Public Property. e. "Public Property" shall mean City -owned or controlled public rights-of-way, easements, bridges, squares or commons. SECTION 2. BASIC GRANT; RESTRICTED USE Licensee is hereby granted a license to construct, maintain, inspect, protect, repair, replace and retain a Network Segment in, under, upon, along and across the Public Property shown and identified in Exhibit "A" hereto, subject to the regulatory powers of the City and subject to the conditions hereinafter set forth. This Agreement creates no rights to expand the Network Segment or to create or install a new network segment, except on the terms provided in this Agreement This Agreement is initially intended to enable Licensee to provide improved data- transmission atatransmission capabilities among its facilities. The grant of this license is expressly conditioned upon Licensee using the Network Segment solely for. its ordinary and necessary business operations, and Licensee shall not sell, lease, or otherwise permit any other person to make use of the Network Segment for any purpose or at any time. SECTION 3. 'PERM OF AGREEMENT This Agreement and the rights conferred hereunder shall commence on u -u "'" 2014 (the "Effective Date"), and shall continue for such period of time as Licensee, or its successors and assigns, operate the Network Segment. 1 0E406/2014 08:32 3192343011 CBWH PAGE 04/11 SECTION 4. FEES REQUIRED a. Licensee shall pay an administrative fee (the "Administrative Fee") in the amount of $0.10 for each linear foot of Network Segment facilities that Licensee places or causes to be placed in, over, under or across Public Property, subject to a minimum fee of $600.00. Licensee agrees that the Administrative Fee is the City's estimate of the administrative burdens imposed on the City in connection. with Licensee's application and its occupancy of Public Property, and Licensee agrees that it will not take any action, nor voluntarily provide support to any third -party action, to challenge the validity or reasonableness of such fee under applicable law. The Administrative Fee shall be payable upon execution and delivery of this Agreement, or any fixture amendment or addendum hereto. In addition to the Administrative Fee, Licensee shall pay permit fees and such other regulatory fees as may be required by applicable ordinance. An Administrative Fee calculated in the manner described above shall be payable in connection with each separate application filed by Licensee to extend or expand the Networlc Segment, at th.e time such application is filed. b. In each successive year during the term of this Agreement, Licensee shall pay an annual management fee (the "Management Fee") equal to $.01 for each linear foot of Network Segment facilities that Licensee places or causes to be placed in, over, under or across Public Property, subject to a 'minimum fee of $50.00. Licensee agrees that the Management Fee is th.e City's estimate of the right-of-way management costs imposed on the City in connection with Licensee's occupancy of, and activities in and upon, Public Property, and Licensee agrees that it will not take any action, nor voluntarily provide support to any third party action, to challenge the validity or reasonableness of such fee under applicable law. City retains the right to modify or adjust the Management Fee linear -foot charge at any time to ensure that the City is properly reimbursed for its right-of-way management costs. The Management Fee shall be payable annually, based on the linear footage of the Network Segment facilities existing at December 31 of a given year, no later than January 15 of the following year, beginning January 15, 2015. In addition to the Management Fee, Licensee shall pay permit fees and such other regulatory fees as may be required by applicable ordinance. SECTION 5. ADDITIONAL LICENSING PROCESS Before commencing any extension or expansion of its Network Segment, or any major repair work, or the installation of any new Network Segment in the City, the Licensee shall file with the City Engineer's Office a written statement (a "License Request") verifying the Public Property under which or upon which it proposes to extend, expand, install or repair its Network Segment. Work other than repair or replacement of existing Network Segment facilities shall require tb.e further grant of a license for use of Public Property. The License Request shall be accompanied by a map, plan or specifications showing the proposed location of the Network Segment components with reference to streets and alleys and the location of other utilities, the size and dimensions of all facilities, and th.e distance above or beneath the surface of the ground it is proposed to repair or to lay the same. If the proposed locations of any Network Segment facilities shall interfere with the reasonable and proper use, construction, reconstruction and maintenance of any Public Improvements or any existing public utility system component, or other structure upon or under Public Property, the City Engineer shall within 30 days after the filing of such plan, map or specifications, note the changes necessary to eliminate all interference with a Public Improvement or existing public utility system facility and refer the same back to the Licensee for amendment. Such map, plan or specifications, when properly changed and 2 08/06/2014 08:32 3192343011 CBWH PAGE 05/11 corrected, shall be flied in the City Engineer's Office, and after the approval of the same by the City Engineer and the posting of a bond required under applicable law or ordinance regulating work in or upon Public Property, if such is not waived by the City, the License Request shall be approved so that the Licensee may proceed in accordance with the approved maps, plans or specifications. Approval of a License Request does not constitute any state n.ent, representation, or assurance by City as to the presence or location of any privately maintained facilities, equipment or infrastructure. No such excavation, construction or erection shall be commenced before approval of the License Request, unless it is an emergency as determined by Licensee in good faith, and all work shall be in accordance with the approved maps, plans or specifications. Each expansion or extension of the Network Segment for which a License Request is approved, and the plans, maps, and specifications therefor, shall be deemed incorporated into this Agreement by reference as an addendum hereto. All of Licensee's activities in relation to said expanded or extended Network Segment shall be subject to the terms of this Agreement. SECTION 6. CONSTRUCTION AND REPAIR OF FACILITIES In the process of location, construction, reconstruction, replacement, or repair of any Network Segment system component, the excavation or obstruction made or placed in Public Property at any time or for any purpose by the Licensee shall, to protect the public and to assure the safe and efficient movement of traffic, be properly barricaded to comply, at a minimum, with requirements set forth in the latest edition of the Manual on Uniform Traffic Control Devices (MUTCD). The Licensee shall not unnecessarily obstruct the use of streets, avenues, alleys or public places, shall provide the City Engineer with no less than 24-hour notice prior to the actual commencement of the work and shall comply with all provisions, requirements, and regulations in accordance with City ordinances in performing such work. In emergencies which require immediate excavation the Licensee may proceed with the work without first applying for an excavation permit or other applicable permits, provided, however, that the Licensee shall apply for and obtain the permit(s) as soon as possible after commencing such emergency work. All pavement taken up or damaged, and any other disturbed areas, shall be properly and speedily replaced in accordance with the City's regulations. As a condition to use of Public Property, the Licensee shall at its own expense repair any private property, utility system component, public improvement or Public Property damaged by such location, construction, reconstruction, replacement or repair work, in a manner reasonably acceptable to City. It after excavations have been made, the Licensee fails to repair or arrange with the City for the proper repair and restoration of any Public Property to a condition as good as the condition of such property prior to the disturbance of same, and after seven (7) days notice in writing to do so is given to its designated representative, the City may make such repairs at the expense of the Licensee. The Licensee shall pay to the City its costs and charges for such work within thirty (30) days after receipt of the City's billing. SECTION 7. WORK BY OTRERS, ALTERATION TO CONFORM WITH PUBLIC IMPROVEMENTS The City reserves the right to lay, and permit to be laid, wires, pipes, cables, conduits, ducts, manholes and other appurtenances, and to do, or permit to be done, any underground and overhead installation or improvement that may be deemed necessary or proper by the City in, across, along, over or under any Public Property occupied by the Licensee and to change any curb or sidewalk or the grade of any street. In permitting others to do such work the City shall 3 06/06/2014 08:32 3192343011 CBWH PAGE 06/11 not be liable to the Licensee for any damages arising out of the performance of such work by other parties, provided City exercised reasonable care in performance of such work undertaken by the City. Nothing in this Agreement shall be construed as to relieve any other person or company from liability for damage to the Licensee's facilities. SECTION S. LICENSEE CONTRACTORS The requirements of this Agreement shall apply to all persons, firms or corporations performing work for the Licensee under a contract, subcontract or other type of work order. SECTION 9. CONDITIONS OF OCCUPANCY Components of the Network Segment laid or constructed by the Licensee within the City shall conform to established grades of streets, alleys, and sidewalks, and be so located as to cause minimum interference with other public utilities located in or upon Public Property, and to cause minimum interference with the rights or reasonable convenience of property owners who adjoin Public Property. All conduit installed by Licensee shall terminate in a shared box or shall otherwise be accessible to others on terms that the City Engineer determines to be fair and reasonable after consideration of generally prevailing industry practices; provided, however., that Licensee may refuse joint use of conduit and pedestals based on technical considerations, such as limited physical space in the conduit, substantial risk of damage to Licensee's fiber, or risk of interruption to critical services. Because available space in the right-of-way is limited, Licensee is encouraged to share conduit and other facilities with existing right-of-way occupants, to the extent reasonably possible. Because right -of --way space is limited, Licensee agrees to cooperate in good faith and on reasonable terms with future requests from others who desire to collocate in or jointly use any separate conduit -type facilities of Licensee in the right -of way. Licensee may charge reasonable fees to others for future joint use of any conduit, pedestals or other infra- structure installed by Licensee. Licensee agrees to allow City to install its own pipes, cables, conduits, ducts, and/or other appurtenances within Licensee's excavation, provided that such installation is performed at City's sole expense and does not result in any material increase to the Licensee's costs. City shall inform Licensee where it desires to collocate or install conduit, and Licensee will ask its installation contractor to provide a reasonable quote for the cost thereof. The collocation or installation of conduit or cables within Licensee's excavation shall be subject to a separate agreement between City and the contractor. The Licensee shall conduct its work hereunder in such manner as to cause as little interference as possible with pedestrian and vehicular traffic, and shall abide by scheduling directions, if any, given by the City Engineer. The Licensee shall, upon reasonable notice and at its sole cost and expense, remove, locate and relocate its Network Segment facilities in, on, over or under Public Property in such manner as the City may at any time reasonably require for the purpose of facilitating the construction, reconstruction, maintenance, repair or change in grade of any public improvement on, in or about any such Public Property, for the purpose of promoting the efficient operation of any such improvement, or for the purposes of facilitating the vacation and/or redevelopment of public right-of-way by the City. In the event the Licensee fails to act within a reasonably allocated 4 08/06/2014 08:32 3192343011 CBWH PAGE 07/11 time, the City may cause the Licensee facilities to be relocated or removed, and the costs thereof shall be billed to the Licensee and shall be paid as provided in Section 6 hereof. The Licensee shall not place its Network Segment facilities in the Public Property where the same will interfere with the normal use or maintenance of any Public Improvement, including but not limited to streets, alleys, traffic control devices, sanitary sewers, storm sewers, storm drains, or any public utility facility. Upon request, the Licensee agrees to assist in locating underground facilities which are part of its Network Segment. Such assistance will be provided in a timely manner, but not more than forty-eight (48) hours after the time of request. As a condition of this Agreement, the Licensee shall enroll as a member of the "Iowa One -Call System" and shall respond to all requests and notifications placed to the toll free "One -Call" number. Installation, repair, or replacement work completed by the Licensee that requires excavation of Public Property or public right-of-way shall require restoration and replacement of (a) any improvements that were removed, destroyed or damaged by the Licensee's work to a condition at least equal to the condition of such premises before the Licensee's work was undertaken, and (b) surface vegetation with sod in conformance with City ordinances and in accordance with standard local practices for placing sod. All work of restoration and replacement shall be subject to inspection and approval by the City Engineer or his designee. SECTION 10. POWERS OF CITY Nothing in this Agreement shall be construed to abridge the right or power of the City to make further regulations relative to the use of the streets, alleys and public grounds by anyone using the same for the erection and maintenance of utility systems. SECTION 11. PLANS AND COORDINATION Upon completion of the work the Licensee shall promptly furnish to the City copies of "as - built" plans related to its Network Segment facilities Iocated on Public Property. The Licensee shall keep complete and accurate maps and records on the Locations and operations of its facilities in connection with this Agreement. SECTION 12. VIOLATIONS OF AGREEMENT Upon evidence being received by the City that a violation or breach of this Agreement or violation of codes or ordinances lawfully regulating the Licensee in the operation of its Network Segment facilities, or in the use of Public Property therefor, is occurring or has occurred (hereinafter referred to as a "default") the City shall cause an investigation to be made. If the City finds that a default exists or has occurred the City may take appropriate steps to secure compliance with the terms of this Agreement or the codes or ordinances. During the period in which any default exists, City shall be entitled to suspend the processing of any request or application by Licensee to amend the terms of this Agreement, to approve a License Request, or to grant a new pennit, license, franchise, or other approval. The City shall notify the Licensee of the default and the Licensee shall cure such default within thirty (30) days after receipt of such notice; provided, however, where any such default (other than a payment default) cannot reasonably be cured within such thirty (30) day period, 5 06106/2014 08:32 3192343011 CBWH PAGE 08/11 .Licensee shall so notify the City Engineer, and if Licensee shall proceed promptly to cure the sane and prosecute such cure with due diligence, the time for curing such default shall. reasonably be extended for such period of time as may be necessary to complete such cure, as mutually agreed upon by the parties. If the Licensee fails to cure a default within the time allowed, the City shall have the right to (i) seek specific performance; or (ii) remedy the default by doing the act itself, or through a contractor, and charge the costs of such work to the Licensee; or (iii) seek damages for such default, plus interest at the rate of eighteen percent (18%) per annum, compounded monthly, on any sum due and owing; or (iv) any combination of (i), (ii) and (iii). SECTION 13. TRANSFER OF TITLE If Licensee abandons its Network Segment system and facilities for a period of twelve (12) months or more, then at City's option City may effectuate a transfer to City of all of Licensee's night, title and interest in and to the Network Segment. Abandonment shall be presumed if Licensee has not filed with the office of the City Engineer a notice of continued use within thirty (30) days after City's written request for. same. Licensee's continued use shall be established upon filing of such notice, without regard to whether Licensee has allowed the Network Segment or some part thereof to go dark. City shall deliver to Licensee a written notice of City's intent to effectuate a transfer of title and permit Licensee a period of thirty (30) days from the date of delivery in which to provide written notice of non -abandonment, and absent such action by Licensee City may file in the public land records of Black Hawk County, Iowa, a notice of transfer of title to City. Licensee shall not be entitled to any compensation from City for a transfer as contemplated by this Section. SECTION 14. LIABILITY, INDEMNIFICATION AND INSURANCE The Licensee covenants, at its sole cost and expense, to indemnify, defend, and save the City and its officers, agents and employees, harmless from any and all costs, damages, losses and liabilities whatsoever (including but not limited to the reasonable fees and expenses of attorneys and accountants), of any kind or nature, whether in tort or contract, arising directly or indirectly from the exercise of the rights granted herein or from the acts or omissions of Licensee, its employees, contractors and agents, in respect of the Network Segment, any Network Segment facilities, any work relating thereto, or any access to or use of the Network Segment by third parties. The Licensee agrees to require contractors and subcontractors engaged in work for the Licensee within the public rights-of-way or on public property to maintain in effect during the termof work liability insurance in comprehensive form and in the amounts to be reasonably set by the City. Licensee agrees to accept the risk of having its communications systems and equipment upon th.e public right-of-way, including the possible risk of damage or injury to its system or equipment, and agrees to release and discharge the City of any liability for damage or injury to Licensee's equipment, except to the extent caused by the City's gross negligence. In no event shall the City be liable for any consequential damages arising out of any damage or injury to Licensee's equipment placed in the right-of-way. The covenants set forth in this Section shall survive the termination or expiration. of this Agreement for any reason. SECTION 15. SEVERABILITY In the event any provision of this Agreement is held invalid, illegal, or unenforceable, whether in whole or inpart, the offending provision or part thereof shall be deemed severed from 6 .-06/06/2014 08:32 3192343011 CBWH PAGE 09/11 this Agreement and the remaining provisions of this Agreement shall not be affected thereby and shall continue in full force and effect. If, for any reason, a court finds that any provision of this Agreement is invalid, illegal, or unenforceable as written, but that by modifying or limiting such provision it would becom.e valid, legal, and enforceable, then such provision shall be deemed to be written and shall be construed and enforced as so modified or limited without affecting the remaining provisions of. this Agreement, provided, however, that in such event City shall have the option, exercisable in its sole discretion, to terminate this Agreement. SECTION 16. ASSIGNMENT Licensee shall not assign or otherwise transfer this Agreement or any of its rights and interest to any firm, corporation or individual without the prior written consent of the City, except that Licensee shall have the right to assign, convey or otherwise transfer its rights, title, interest and obligations under this Agreement, in whole or in part, to any entity controlled by, controlling or under common control with Licensee, or any entity into which Licensee may be merged or consolidated or which purchases all or substantially all of the assets of Licensee, provided that Licensee shall notify the City in writing of any permitted assignment, conveyance or transfer within thirty (30) days of its occurrence. SECTION 17. VACATION OF STREETS AND ALLEY So long as the Licensee exercises the rights granted to it hereunder the City will not, by ordinance or otherwise, vacate any street, alley or public way in which the Licensee has installed its facilities without reserving such rights as necessary to allow continued use of such property for the said facilities in accordance with the terms of this Agreement, provided that nothing herein shall limit the City's right to require the Licensee to relocate it facilities as provided in Section 10 hereof. SECTION 18. DELIVERY OF NOTICES Except as may be expressly provided herein, any notices hereunder shall be in writing and shall be delivered via certified mail and addressed as follows, unless indicated otherwise in the future: If to City: City of Waterloo, Iowa Attn: City Engineer 715 Mulberry Street Waterloo, IA 50703 With a copy to: City of Waterloo, Iowa Attn: City Attorney 715 Mulberry Street Waterloo, IA 50703 If to Licensee: CBE Companies, Inc. Attn: Deb Reinhardt 1309 Technology Parkway Cedar Rapids, IA 50613 7 '06106/2014 08:32 3192343011 CBWH PAGE 10/11 Provided, however, that in the case of an emergency, notices may be given verbally to the above named persons. In such case written confirmation should be provided. Nothing contained herein shall prevent other forms of notice if actually received by the addressee. Notice shall be deemed given three (3) days after the date of ,mailing if done by certified mail, the next business day if sent by a recognized national overnight carrier or courier, or otherwise on the date actual notice is received. SECTION 19. APPLICABLE LAWS This Agreement is subject to all applicable federal, state and local laws, regulations and orders of governmental agencies as amended, including but not limited to the Communications Act of 1934 as amended, the Telecommunications Act of 1996 as amended and the rules and regulations of the FCC. Neither City nor Licensee waives any rights they may have under any such laws, rules or regulations. SECTION 20. GOVERNING LAW; LEGAL ACTION This Agreement shall be governed by and construed in accordance with the laws of the State of Iowa. In any action to interpret, construe or enforce this Agreement, the parties hereby agree and consent (i) to irrevocably submit to the jurisdiction and venue of the Iowa District Court for Black Hawk County, over any action or proceeding to enforce or defend any matter arising from or related to this Agreement; (ii) to irrevocably waive, to the fullest extent a party may effectively do so, the defense of any inconvenient forum to the maintenance of any such action or proceeding; and (iii) not to institute any legal action or proceeding against the other party or any of the directors, officers, officials, employees, successors, assigns, agents or property of the other party, concerning any matter arising out of or relating to this Agreement, in any court other than, one specified in this Section. SECTION 2L GENERAL PROVISIONS This Agreement constitutes the entire agreement of the parties with respect to the subject matter hereof. It may not be modified or amended except by a written instrument signed by both parties. This Agreement is binding upon the parties and the permitted successors, assigns, transferees and personal representatives of each of them. IN WITNESS WHEREOF, the parties have entered into this Right -of -Way License Agreement by their duly authorized representatives as of the Effective Date. [signatures on next page] 8 06/06/2014 08:32 3192343011 CBWH PAGE 11/11 CBE COMPANIES, DX. CITY OF ERLOO, IOWA \--.) By: By: Title: C- 9 most G. Clark, Mayor l Exhibit A page # 1 scale 1 =100' drawn by WJI- date 5-15-2014 ? CO 7-71 40 pp m! 04m11014— 44 70, 1 r t ' - — ) ' f - — r I - rtr 00, TF -13.1118, 1.41 Exhibit A node # 1 scale I ”= -I 00' drawn by WiL date 5H 5-- 2014 co 44.0 cy, • CTr = CD o II WATERLOO, o / -()),)4 • '75 1