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HomeMy WebLinkAboutCity of Hudson Iowa-5/6/2013RIGHT-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. "Hudson" shall mean City of Hudson, Iowa. c. "Licensee" shall mean City of Hudson, Iowa or Waterloo Water Works, as applicable. d. "Water Main Segment" shall mean the water main to be laid, constructed and installed by Hudson within the corporate limits of the City of Waterloo as contemplated by this Agreement and shall include all system components owned and operated, in connection with the operation of the Water Main Segment, including but not be limited to pipes, underground conduits and other structures, facilities or appurtenances. As of the date of this Agreement, the Water Main Segment route is to be within the City right-of-way for Ranchero Rd. west of DeWitt Rd. e. "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. f. "Public Property" shall mean City -owned or controlled public rights-of-way, easements, bridges, squares or commons. SECTION 2. BASIC GRANT; RESTRICTED USE Hudson is hereby granted a license to install and construct a Water Main Segment in, under, upon, along, and across Public Property within the City right-of-way for Ranchero Rd. west of DeWitt Rd., subject to the regulatory powers of the City and subject to the conditions hereinafter set forth. This Agreement creates no rights to expand the Water Main Segment or to create or install a new Water Main Segment, except on the terms provided in this Agreement. This Agreement is initially intended to enable Hudson to provide water services to unserved areas of Hudson and to enable the Waterloo Water Works to provide water services to unserved areas of Waterloo. The grant of this license is expressly conditioned upon Licensee using the Water Main Segment solely for its ordinary and necessary operations, and Licensee shall not sell, lease, or otherwise permit any other person to make use of the Water Main Segment for any purpose or at any time. It is expressly understood that the Water Main Segment within the Public Property of City, upon the completion of the construction and installation, shall become the property of the Waterloo Water Works pursuant and subject to its agreements with Hudson, and the Waterloo Water Works shall then maintain and repair said Water Main Segment upon the terms and conditions with the City that it maintains or repairs its mains. SECTION 3. TERM OF AGREEMENT This Agreement and the rights conferred hereunder shall commence upon the acceptance and execution of this Agreement by all parties (the "Effective Date") and shall continue for such period of time as Licensee, or its successors and assigns, operates the Water Main Segment. SECTION 4. CONSTRUCTION AND REPAIR OF FACILITIES In the process of location, construction, reconstruction, replacement, or repair of any Water Main Segment system component, the excavation or obstruction made or placed in Public Property at any time or for any purpose by 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). 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, Licensee may proceed with the work without first applying for an excavation permit or other applicable permits, provided, however, that 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, 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, 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 Licensee. 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 5. 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 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 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 Licensee's facilities. SECTION 6. LICENSEE CONTRACTORS The requirements of this Agreement shall apply to all persons, firms or corporations performing work for Licensee under a contract, subcontract or other type of work order. 2 SECTION 3. TERM OF AGREEMENT This Agreement and the rights conferred hereunder shall commence upon the acceptance and execution of this Agreement by all parties (the "Effective Date") and shall continue for such period of time as Licensee, or its successors and assigns, operates the Water Main Segment. SECTION 4. CONSTRUCTION AND REPAIR OF FACILITIES In the process of location, construction, reconstruction, replacement, or repair of any Water Main Segment system component, the excavation or obstruction made or placed in Public Property at any time or for any purpose by 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). 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, Licensee may proceed with the work without first applying for an excavation permit or other applicable permits, provided, however, that 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, 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, 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 Licensee. 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 5. 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 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 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 Licensee's facilities. SECTION 6. LICENSEE CONTRACTORS The requirements of this Agreement shall apply to all persons, firms or corporations performing work for Licensee under a contract, subcontract or other type of work order. 2 SECTION 7. CONDITIONS OF OCCUPANCY Components of the Water Main Segment laid or constructed by Hudson 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. 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. Hudson shall not place its Water Main 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, Licensee agrees to assist in locating underground facilities which are part of its Water Main 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, 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 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 Licensee's work to a condition at least equal to the condition of such premises before 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 8. 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 9. PLANS AND COORDINATION Upon completion of the work Hudson shall promptly furnish to the City and to the Waterloo Water Works copies of "as- built" plans related to its Water Main Segment facilities located on Public Property. Licensee shall keep complete and accurate maps and records on the locations and operations of its facilities in connection with this Agreement. SECTION 10. VIOLATIONS OF AGREEMENT Upon evidence being received by City that a violation or breach of this Agreement or violation of codes or ordinances lawfully regulating the operation of its Water Main 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 3 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 Licensee of the default, and 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 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 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 11. ABANDONMENT If Hudson and Waterloo Water Works abandon the Water Main Segment system and facilities for a period of twelve (12) months or more, then at City's option City may remove the Water Main Segment or any part thereof. Abandonment shall be presumed if Hudson and Waterloo Water Works have 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. Hudson's and Waterloo Water Works' continued use shall be established upon filing of such notice, without regard to whether Licensee has in fact abandoned the Water Main Segment. City shall deliver to Hudson and Waterloo Water Works a written notice of City's intent to remove the Water Main Segment or portion thereof and permit Licensee a period of thirty (30) days from the date of delivery in which to provide written notice of non -abandonment. Hudson and Waterloo Water Works shall not be entitled to any compensation from City. SECTION 12. LIABILITY, INDEMNIFICATION AND INSURANCE Each 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 Water Main Segment, any Water Main Segment facilities or appurtenances, any work relating thereto, or any access to or use of the Water Main Segment by third parties. Licensee agrees to require contractors and subcontractors engaged in work for 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 set by the City. Licensee agrees to accept the risk of having its facilities and appurtenances in or upon the public right-of-way, including the possible risk of damage or injury to its facilities or appurtenances, and agrees to release and discharge the City of any liability for damage or injury to Licensee's facilities or appurtenances, 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 facilities or appurtenances placed in the right-of-way. The 4 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 Licensee of the default, and 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 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 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 11. ABANDONMENT If Hudson and Waterloo Water Works abandon the Water Main Segment system and facilities for a period of twelve (12) months or more, then at City's option City may remove the Water Main Segment or any part thereof. Abandonment shall be presumed if Hudson and Waterloo Water Works have 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. Hudson's and Waterloo Water Works' continued use shall be established upon filing of such notice, without regard to whether Licensee has in fact abandoned the Water Main Segment. City shall deliver to Hudson and Waterloo Water Works a written notice of City's intent to remove the Water Main Segment or portion thereof and permit Licensee a period of thirty (30) days from the date of delivery in which to provide written notice of non -abandonment. Hudson and Waterloo Water Works shall not be entitled to any compensation from City. SECTION 12. LIABILITY, INDEMNIFICATION AND INSURANCE Each 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 Water Main Segment, any Water Main Segment facilities or appurtenances, any work relating thereto, or any access to or use of the Water Main Segment by third parties. Licensee agrees to require contractors and subcontractors engaged in work for 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 set by the City. Licensee agrees to accept the risk of having its facilities and appurtenances in or upon the public right-of-way, including the possible risk of damage or injury to its facilities or appurtenances, and agrees to release and discharge the City of any liability for damage or injury to Licensee's facilities or appurtenances, 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 facilities or appurtenances placed in the right-of-way. The 4 covenants set forth in this Section shall survive the termination or expiration of this Agreement for any reason. SECTION 13. 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 14. ASSIGNMENT Hudson shall not assign or otherwise transfer this Agreement or any of its rights and interest hereunder to any firm, corporation, entity or individual without the prior written consent of the City, except with respect to the transfer of the Water Main System within the City to the Waterloo Water Works as contemplated in Section 2 above. SECTION 15. VACATION OF STREETS AND ALLEY So long as Hudson or Waterloo Water Works exercise the rights granted to it hereunder the City will not, by ordinance or otherwise, vacate any street, alley or public way in which Hudson or Waterloo Water Works have 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 Hudson or Waterloo Water Works to relocate it facilities as provided in Section 7 hereof. SECTION 16. 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: With a copy to: City of Waterloo, Iowa Attn: City Engineer 715 Mulberry Street Waterloo, IA 50703 City of Waterloo, Iowa Attn: City Attorney 715 Mulberry Street Waterloo, IA 50703 5 If to Hudson: If to Waterloo Water Works: City of Hudson Attn: 525 Jefferson Street Hudson, IA 50643 Waterloo Water Works Attn: Mr. Dennis Clark 325 Sycamore St. Waterloo, IA 50703 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 on the date of mailing if done by certified mail, or otherwise on the date actual notice is received. SECTION 17. APPLICABLE LAWS This Agreement is subject to all applicable federal, state and local laws, regulations and orders of governmental agencies, as amended. Neither City, Waterloo Water Works nor Hudson waive any rights they may have under any such laws, rules or regulations. SECTION 18. 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 19. 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. 6 If to Hudson: If to Waterloo Water Works: City of Hudson Attn: 525 Jefferson Street Hudson, IA 50643 Waterloo Water Works Attn: Mr. Dennis Clark 325 Sycamore St. Waterloo, IA 50703 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 on the date of mailing if done by certified mail, or otherwise on the date actual notice is received. SECTION 17. APPLICABLE LAWS This Agreement is subject to all applicable federal, state and local laws, regulations and orders of governmental agencies, as amended. Neither City, Waterloo Water Works nor Hudson waive any rights they may have under any such laws, rules or regulations. SECTION 18. 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 19. 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. 6 CITY OF HUDSON, IOWA WATERLO • *CATER WO By: 7 CITY OF WATERLOO, IOWA la By:f, Title: „At