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RIGHT OF WAY ACCESS AGREEMENT
This Right of Way Access Agreement (the "Agreement") is entered into as of 3vr\ e. l011/ ,
2009, by and between the City of Waterloo, Iowa (the "City") and the Iowa Health System, as agent
for its hospitals and affiliates (the "Hospital"),
RECITALS
A. The Hospital desires to lay fiber optic cable within those portions of the City's public
right of way (the "PROW") described on Exhibit "A" attached hereto.
B. Due to the status of the Hospital as a non-profit corporation, the City is willing to
permit access to the PROW on the terms set forth in this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises exchanged herein and for other
consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as
follows:
1. Access. The City agrees to grant access to the Hospital to construct and maintain fiber
optic cable (the "Cable") under, through, along, and across the PROW. The Hospital's use of the
PROW shall at all times be subject to the regulatory powers of the City as provided in the City's Code
of Ordinances, including but not limited to Chapter 3 of Title 7 concerning excavations in the PROW,
and applicable federal and state statutes and regulations, as such ordinances, statutes, and regulations
may be amended from time to time.
2. Permit for Work. Before commencing any major installation or repair work,
including but not limited to initial installation (collectively, the "Work"), the Hospital shall file with
the office of the City Engineer an application for a permit to excavate the PROW as required by City
ordinance. The City may require that the statement be accompanied by a map, plan, or other
specifications (collectively, the "Plans") showing the proposed location with reference to street and
alleys, the size and dimensions of all Cable facilities, and the distance above or beneath the surface of
the ground of the proposed installation or repair. If the proposed location of any Cable facilities shall
interfere with the reasonable and proper use, construction, repair, or maintenance of any public
improvements or any existing or future public utility system component or facilities, or other structure
upon or under public property, the City shall, within a reasonable time after the filing of the Plans,
note the changes necessary, eliminate all interference with a public improvement or existing City -
owned public utility system facility, and refer the Plans back to the Hospital for amendment. Such
Plans, when properly changed and corrected, shall be filed with the office of the City Engineer. After
approval of the revised Plans by the City a permit shall be issued authorizing the Hospital to proceed
in accordance with the approved Plan, and the Hospital shall carry out all Work in accordance with
the approved Plans. Promptly following completion of the Work, the Hospital shall furnish to the city
copies of "as -built" plans related to the Cable facilities located in the PROW. The Hospital shall keep
complete and accurate maps and records of the locations and operations of its Cable facilities and
make same available to the City for review upon reasonable advance notice. No excavation,
construction, or other major Work to the Cable facilities shall be commenced before the issuance of a
permit for same, except in the case of an emergency as described in Section 6 below.
3. Conduct of Work. In making excavation in the PROW, the Hospital shall proceed
with the Work so as to cause the least possible inconvenience to the public and to assure the safe and
efficient movement of pedestrian and vehicular traffic. The Hospital shall properly protect all
excavations and obstructions by proper placement of shoring, surface plates, barricades, warning
lights, and such other or additional devices as circumstances may warrant, but in any event and at
minimum according to the Manual on Uniform Traffic Control Devices and such other safety
standards as may be required by the City Engineer.
As a condition to use of the PROW, the Hospital shall at its own expense repair or
cause repair to any private property, public property, public utility system component, or other public
improvement damaged or disturbed by the Work, and shall restore all such property as nearly as
possible to the previous condition of same at Hospital's own expense. Immediately after completion
of the Work, any trenches for excavation which the Hospital has opened shall be filled. However, no
trench or excavation in the street shall be filled or covered without giving the City the right to inspect
the same. All backfilling in streets will be according to City specifications. Temporary street
surfacing will be placed in such excavations as soon as the same has been backfilled. Pavements,
sidewalks, curbs, and gutters or other portions of streets and public places opened, disturbed, or
damaged shall be promptly restored and replaced with like materials at the expense of the Hospital
and left in as good condition as before the opening, disturbance, or damage occurred. In the event
like replacement materials are not available, the Hospital shall notify the City Engineer, who must
approve the use of any alternate materials. In cases where a cut or disturbance is made in a section of
street paving or sidewalks, but causes greater disturbance than to just the area cut, rather than replace
only the area cut, the Hospital shall replace that area as may be ordered by the City Engineer, which in
no event shall exceed the panel or panels disturbed. In the event that the Hospital fails to comply with
the provision of this section, after having been given reasonable notice, the City may do such work as
may be needed to properly repair such pavements, sidewalks, curbs, and gutters or other portions of
streets and public places, and the cost thereof shall be repaid to the City by the Hospital within sixty
(60) days of submittal of a request for reimbursement.
4. Relocation of Cable Facilities. Whenever the City paves or repaves any street,
changes the grade line of any street or public place, constructs or reconstructs any conduit, water main
service lines or water connection, sewer, or other City -owned public works or City -owned utility, or
undertakes any other development or redevelopment project, the Hospital shall, upon reasonable
notice from the City, remove, locate, and relocate the Cable facilities at its own expense so as to
conform to the established grade or line of such street or public place, to promote the efficient
operation of any such improvement, and so as not to interfere with the public improvements so
constructed or reconstructed. In the event that the Hospital fails to comply with the provision of this
section, after having been given reasonable notice, the City may do such work as may be needed to
remove, locate, and/or relocate the Cable facilities and to properly repair pavements, sidewalks, curbs,
and gutters or other portions of streets and public places damaged or disturbed in connection with
such work, and the cost thereof shall be repaid to the City by the Hospital within sixty (60) days of
submittal of a request for reimbursement.
5. Above -Ground Facilities. All Cable facilities shall be placed underground, except
where above -ground connection to buildings or other locations above ground is reasonably necessary.
As far as reasonably possible, above -ground connections or facilities shall be within alleys and by
means of poles. The location and specifications of poles are subject to approval by the City Engineer.
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6. Emergencies. In case of emergency, the City reserves the right to remove or relocate
the Cable facilities, at the expense of the Hospital, upon verbal notification to the Hospital prior to
such removal or relocation. The City shall incur no liability by such action. Within forty-eight (48)
hours of taking action, the City shall notify the Hospital in writing of the action taken.
In case of emergency, the Hospital may proceed with the Work without first applying
for or obtaining a permit, provided, however, that the Hospital shall apply for and obtain the permit as
soon as possible after commencing the emergency Work.
7. One -Call System. The Hospital shall register or enroll in the "Iowa One -Call System"
and shall provide locating service in connection therewith on a 24/7 basis. In non -emergency
situations, the Hospital shall respond to all requests for assistance in locating underground Cable
facilities in a timely manner, but in no event more than forty-eight (48) hours after the time of the
request.
8. Restricted Use; No Assignment. The Hospital agrees that the Cable facilities shall be
used solely for the ordinary and necessary business operations of the Hospital. The Hospital shall not
sell, lease, or otherwise permit any other person to make use of the Cable facilities for any purpose or
at any time. The Hospital may not assign or otherwise transfer this Agreement or any of its rights or
duties hereunder without the prior written consent of the City.
9. Work by Others in PROW. 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 above -ground installation or improvement that may be deemed necessary
or proper by the City in, across, along, over, or under the PROW, 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
Hospital for any damages arising out of the performance of any such work. Nothing herein shall be
construed to relieve any other person from liability for damage to the Cable facilities. The City makes
no representations concerning the rights granted herein as they may relate to the rights held by other
users of the PROW.
10. Contractors. The requirements set forth in this Agreement with respect to Work in the
PROW shall apply to all persons, firms, corporations, or other entities performing work for the
Hospital under a contract, subcontract, or any type of work order.
11. Indemnification. The Hospital agrees, at its sole cost and expense, to indemnify, hold
harmless, and defend the City, its officials, agents, employees, and consultants, against any and all
claims, suits, causes of action, proceedings, and judgments (collectively, the "Claims") for damages,
including but not limited to attorneys' fees, or equitable relief relating to injury or damage of any type
or nature whatsoever to any person or property arising out of the construction, maintenance, or
operation of the Hospital's facilities in the PROW, or in any way arising out of the activities of the
Hospital, its employees, agents, or contractors, in the PROW, regardless of whether the injury or
damage was caused in part by the City and regardless of whether the act or omission complained of is
authorized, allowed, or prohibited by this Agreement or applicable law. The covenants set forth in
this Section 11 shall survive the termination or expiration of this Agreement for any reason and shall
apply to all Claims, regardless of whether asserted, prosecuted, or tried in a public or private forum,
including trial and appellate levels.
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12. Insurance. The Hospital shall procure general liability insurance in a minimum
amount of $2,000,000, naming the City as an additional insured, and shall file with the City Clerk a
certificate of insurance which clearly discloses on its face the coverage required herein. Such
insurance shall provide written notice to the City no less than thirty (30) days prior to cancellation.
The Hospital agrees to require contractors and subcontractors engaged in the Work to maintain such
liability insurance in effect during the term of the Work.
13. Governmental Cooperation; No Partnership or Joint Venture. The City does not
encourage the use of its PROW by others and enters this Agreement as an accommodation to the
Hospital. Nothing in this Agreement shall be interpreted as creating a partnership or joint venture
between the City and the Hospital with respect to the matters set forth in this Agreement.
14. Term. The teen of this Agreement shall be perpetual, but may be terminated by the
parties in writing or in the event that the Hospital abandons the Cable facilities.
15. Entire Agreement. This Agreement and the exhibits hereto constitute the entire
agreement between the parties pertaining to the subject matter hereof. All exhibits hereto are hereby
incorporated into and made a part of this Agreement.
16. Severability. In the event any provision of this Agreement is held invalid, illegal, or
unenforceable, whether in whole or in part, 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 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 limited.
17. Binding Effect. The provisions of this Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective personal representatives, successors, and assigns.
18. Headings and Captions. The title or captions of paragraphs in this Agreement are
provided for convenience of reference only and shall not be considered a part hereof for purposes of
interpreting or applying this Agreement, and such titles or captions do not define, limit, extend,
explain, or describe the scope or extent of this Agreement or any of its terms or conditions.
19. Counterparts. This Agreement may be executed in any number of counterparts, each
of which shall be deemed an original and all of which together shall constitute one and the same
instrument.
IN WITNESS WHEREOF, the parties have executed this Right of Way Access Agreement by
their duly authorized representatives as of the date first written above.
[signatures on next page]
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CITY OF WATERLOO, IOWA
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IOWA HEALTH SYSTEM, as agent for
its hospitals and affiliates
By. %n
.�oy. rosser
VP/CIi Iowa Health System