HomeMy WebLinkAboutDeere and Company-2/4/2013RIGHT-OF-WAY 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 Deere & Company
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, manholes, vaults, fiber optic cables, and other structures, facilities or appurtenances. 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 472 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, on 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 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. TERM OF AGREEMENT
This Agreement and the rights conferred hereunder shall commence on January 28, 2013
(the "Effective Date"), and shall continue for such period of time as Licensee, or its successors
and assigns, operate the Network Segment.
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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 future 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 Network Segment, at the 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 the 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, 2014. 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 the 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 the 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
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the Licensee for amendment. Such map, plan or specifications, when properly changed and
corrected, shall be filed 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 statement, 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. If, 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 fifteen (15) business 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.
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SECTION 7. WORK BY OTHERS, 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
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 8. 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.
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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
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 located 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
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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 permit, 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,
Licensee shall so notify the City Engineer, and if Licensee shall proceed promptly to cure the
same 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 the prime rate of interest as established by the Wall Street
Journal, plus two percent (2%) per annum 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 of all of Licensee's right,
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. 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
term of 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 the 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
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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 in part, the offending provision or part thereof shall be deemed severed from
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 become 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, which
City shall not unreasonably withhold, condition or delay, 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
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If to Licensee:
715 Mulberry Street
Waterloo, IA 50703
Deere & Company
Attn: Mgr Global Real Estate
One John Deere Place
Moline, Ill 61265
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 mailed within the continental United States of
America, 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 21. 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]
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Deere & Company
By:
Cameron McGovern
Title: Manager Global Real Estate
Date: % /23 / 13
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City of Waterloo, Iowa
By:
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