HomeMy WebLinkAboutMetro Fibernet, LLC - ROW License Agreement - 9.19.2022RIGHT-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 Metro Fibernet, LLC or any of its designated subsidiaries.
c. "Network Segment" shall mean the communications system laid or 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, fibei 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 Aerial 4774 and Underground 28302 (TOTAL 33076) 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
a. 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.
SECTION 3. TERM OF AGREEMENT
a. This Agreement and the rights conferred hereunder shall commence on September 6,
2022 (the "Effective Date"), and shall continue for such period of time as Licensee, or its
successors and assigns, operate the Network Segment.
SECTION 4. TEES 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 $600.00. Licensee
agrees that the Administrative Fee is the City's estimate of the administrative burdens imposed
on the City in connection with Licensee's application and its occupancy of Public Property, and
Licensee agrees that it will not take any action, nor voluntarily provide support to any third -party
action, to challenge the validity or reasonableness of such fee under applicable law. The
Administrative Fee shall be payable upon execution and delivery of this Agreement, or any
future amendment or addendum hereto. In addition to the Administrative Fee, Licensee shall pay
permit fees and such other regulatory fees as may be required by applicable ordinance. An
Administrative Fee calculated in the manner described above shall be payable in connection with
each separate application filed by Licensee to extend or expand the Network Segment, at the
time such application is filed.
b. In each successive year during the term of this Agreement, Licensee shall pay an
annual management fee (the "Management Fee") equal to ($.015 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 lineal -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. In addition to the
Management Fee, Licensee, or its contractors or agents, shall pay excavation permit fees and
such other regulatory fees as may be required by applicable ordinance.
SECTION 5. ADDITIONAL LICENSING PROCESS
a. 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.
b. 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
2
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 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.
c. 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 election 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. If
Licensee extends or expands its Network Segment without following the License Request
process prescribed by this Section, the Administrative Fee and the fee minimum shall double,
and Licensee shall be liable for any Management Fees that it failed to timely pay, plus interest
thereon at 12% per annum, compounded monthly.
d. 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
a. 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 limit obstructions to the minimum area and time necessary, 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 and this Agreement in performing such work. 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. 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.
b. 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
3
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, plus interest at
12% per annum, compounded monthly, within thirty (30) days after receipt of the City's billing.
SECTION 7. WORK BY OTHERS, ALTERATION TO CONFORM WITH
PUBLIC IMPROVEMENTS
a. 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
a. 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; RELOCATION
a. 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 shale 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.
b. 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.
4
ato),
c. 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 and proceed with diligence
to begin and/or complete said relocation or removal within a seasonably allocated time, or if City
in its discretion chooses to allow Licensee to post a performance bond and Licensee fails within
a reasonable time set by the City to furnish a satisfactory performance bond providing for
completion of the required relocation by a designated date, the City at its option may cause the
Licensee facilities to be relocated or removed and then demand reimbursement of costs and
expenses from the Licensee, including interest at the rate of 12% per annum, compounded
monthly, without liability to the City for any loss or damage caused by such relocation or
removal. In addition to the foregoing remedies, City at its option may impose a fine of
$1,000.00 per day or portion thereof starting fourteen (14) days following the City's request and
Licensee's failure to diligently act or, as appropriate in the circumstances, starting seven (7) days
following Licensee's failure to complete the required relocation by the date designated in
connection with the performance bond. Sums payable under this paragraph are due and payable
by the Licensee to the City within thirty (30) days after receipt of the City's billing.
d. 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.
e. 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.
f. 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.
5
SECTION 10. POWERS OF CITY
a. 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
a. 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
a. 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 of 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 permit, license, franchise, or other approval.
b. 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.
c 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 twelve percent (12%) per annum, compounded
monthly, on any sum due and owing; or (iv) any combination of (i), (ii) and (iii).
SECTION 13. TRANSFER OF TITLE
a. 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 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.
6
b. 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
a. 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.
b. 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.
c. 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
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.
d. The covenants set forth in this Section shall survive the termination or expiration of
this Agreement for any reason.
SECTION 15. SEVERABILITY
a. 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 fiom
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
a. 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,
7
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
a. 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
a. 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:
If to Licensee:
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
Metro Fibernet LLC
3701 Communications Way
Evansville, IN 47715
Attn: President
with copy to:
Metro Fibernet, LLC
Attn: Legal Department
8837 Bond St.
Overland Park, KS 66214
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.
8
SECTION 19. APPLICABLE LAWS
a. 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
a. 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. If City prevails in any legal action to collect
fees owed by Licensee under this Agreement, Licensee shall be liable for City's reasonable
attorneys' fees and expenses.
SECTION 21. GENERAL PROVISIONS
a. 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.
Metro Fibernet, LLC_
B
Title:
Sft. VP Ours the' RelY•ir
CITY OF WATERLOO, IOWA
By:
Quentin M. Hart, Mayor
9