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Home My WebLink About1998-22 - Agreement with Brooks FiberiilLL N0. ~~'-~~ ORDINANCE NO. 98- 2 Z A4'r ORDLtiANCE APPROVING A,~1 LNT'ERIlbI RIGEiT-OF-WAY Eiiiu.iJiviEi~'i wiin liitUOKS FIBER COIVL'~IUNICATIONS RELATWG TO liSE OF PtiBL?C WAYS FOR TELECOMbitiNICATIONS FACII,TTIES. ~ r . __ .. :. }LY .2;), t_":? =1~~i ~ :.~1~ ^J'~":1er wr r+~, ..._. ~' ,t. :''lj'It..U-W w,f cpr;sh <_: 1tS ;:ti7r^or rr limits; and ,~r~,r-r.~ 3s, trr City is in the process of eo sic»ri._g i :,::cip:~l:~c'.s:vc .:3Y.: ~` way Ord:raL'CC ;''I<<:W ~+rv;ilanCC~'~, the current drag ci which hoc loon nrnv,~3,~;,y rn RrnQk~ _~ihCt Communications ("Company"); and :~- : ~1~:.~.;;, the company desires to use, prior to the enactment of the ROW Ordinance, certain public right-of-way of the City for the purpose of construction, operation, and maintenance of Telecommunications Facilities pursuarn to the terms and conditions of a Interim Right-of-Way Agreement, in substantially the form attached as Exhibit A; and NOW, THEREFORE, be it ordained by the Board of Aldermen of Riverside, Missouri: Section 1. The Interim Right-of-Way Agreement in substantially the form attached as F hibi A with such changes as the Mayor shall agree, the execution of such Agreement being conclusive proof of such agreement, the performance of Ciry obligations under the document, and the executions and delivery of all documents and the performancE of all actions related thereto are approved. ~~ The Mayor, the City Clerk and the City Administrator are authorized and directed to execute such documents and take such actions as are necessary or desirable to effectuate the irtent of this Ordinance. Sec:ior. 3. This ordinance shall take effect immediately. Passed this/~ day of Feoruary, 19y8. -- ATTEaT: MAY - CITY CLERK - ~ INTERIM RIGHT-OF-WAY AGREEMENT THIS AGREEMENT, entered into as of =1~~ ~`7~ , 1998, by and between BROOKS FIBER COMMUNICATIONS OF MISSOURI, INC., ("Company") and the CITY OF RIVERSIDE, MISSOURI, a municipal corporation, ("City"). A. The City is the owner of certain public right-of-way within its corporate limits. B. The City is in the process of considering a comprehensive right of way ordinance ("Right- of-Way Ordinance"), the current draft of which has been provided to the Company. C. The Company desires to use, prior to the enactment of the Right-of-Way Ordinance, certain public right-of-way of the City for the purpose of construction, operation, and maintenance of Telecommunications Facilities (defined below) pursuant to the laws of Missouri and this Agreement. D. The City is willing to allow, pursuant to the terms and conditions of this Agreement, the Company to use the public right-of-way for such purposes prior to the enactment of the Right-of-Way Ordinance but subject to Right-of-Way Ordinance when enacted. NOW, THEREFORE, in consideration of conditions set forth in this Agreement, the Company and the City agree as follows: SECTION I-DEFINITIONS For purposes of the Agreement, the following words and phrases shall have the meanings given herein: "Company" means Brooks Fiber Communications of Missouri, Inc. "City" means the City of Riverside, Missouri. "Affiliate" means a Person that (directly or indirectly) owns or controls, is owned or controlled by, or is under common ownership or control with another Person. "City Property" means and includes all real property owned by the City, other than Public Ways, and all property held in a proprietary capacity by the City. "Emergency" means a condition that (1) poses a cleaz and immediate danger to life or health, or of a significant loss of property; or (2) requires immediate repair or replacement in order to restore service to a customer. "Gross Revenue" means all amounts received by or on behalf the Company from, or in connection with or related to its use of any Public Way including but not limited to the operation of a Telecommunication Service and all other income derived from or by reason of the operation and/or use of its Telecommunication Facilities in the Public Way. Gross Revenues do not include receipts from any business endeavor which in no way uses the Public Way; personnel fees; penalties chazged for late payment; sales taxes collected; or the revenue of any Person other than the Company and its Affiliates. "Person" means and includes individuals, corporations, trusts, companies, associations, joint stock companies or associations, firms, partnerships, limited liability companies and any other entity and includes their successors, assigns, lessees, lessors, sublessees, sublessors, and licensees. 'Public Street means any highway, street, cartway, alley or other public right-of-way for motor vehicle travel under the jurisdiction and control of the City which has been acquired, established, dedicated or devoted to highway purposes not inconsistent with Telecommunications Facilities. "Public Way" means and includes all Public Streets, Utility Easements, bicycle lanes, public sidewalk and other public rights-of-way, now or hereafter owned by the City, but only to the extent of the City's right, title, interest or authority to grant a license or permit to occupy and use such Public Way for Telecommunications Facilities. "Telecommunications Facilities" mean the plant, equipment and property, including but not limited to, cables, wires, conduits, ducts, pedestals, antennae, electronics and other appurtenances used or to be used to transmit, receive, distribute, offer or otherwise provide Telecommunications Service. "Telecommunications Service" means the providing or offering for rent, sale or lease, or in exchange for the other value received of any kind, of the transmittal of voice, data, image, graphic and video programming information between or among points by wire, cable, fiber optics, laser, microwave, radio, satellite or similaz facilities, with or without benefit of any closed transmission medium. "Utility Easement" means any easement owned by the City and acquired, established, dedicated or devoted for public utility purposes not inconsistent with Telecommunications Facilities. SECTION 2-AUTHORITY GRANTED The City grants to the Company, subject to the terms and conditions of this Agreement, the non-exclusive right to occupy or use the Public Ways for the location of Telecommunication Facilities for the delivery of Telecommunications Services. SECTION 3-USE OF PUBLIC WAYS In the use of Public Ways under this Agreement, the Company shall be subject to the Right-of-Way Ordinance when enacted and all other rules, regulations, policies, resolutions, and ordinances now or hereafter adopted or promulgated by the City and is subject to all applicable laws, orders, rules and regulations adopted by governmental bodies now or hereafter having jurisdiction. In addition, the Company shall be subject to all technical specifications, design criteria, policies, resolutions, and ordinances now or hereafter adopted or promulgated by the City relating to permits and fees, sidewalk and pavement cuts, utility location, construction coordination, surface restoration, and other requirements on the use of the Public Way and shall comply with the following: (a) The Company's use of Public Way shall in all matters be subordinate to the City's use of the Public Way. The Company must obtain the City's prior written consent for placement of its Telecommunication Facilities. (b) All earth, materials, sidewalks, paving, crossings, utilities, public improvements, or improvements of any kind injured or removed by the Company in its activities under this Agreement shall be fully repaired or replaced promptly by the Company at its sole expense and to the reasonable satisfaction of the City or owner thereof. (c) The Company shall keep and maintain accurate records and as-built drawings depicting horizontal and vertical location of all Telecommunications Facilities constructed, reconstructed, or relocated in the Public Way after the date hereof. The Company shall cooperate promptly and fully with the City and take all measures necessary to provide accurate and complete information regazding 2 by this Agreement. However, this shall not relieve the Company from the requirement of notifying the City of the Emergency work and obtaining any permits necessary for this purpose upon alleviation of the Emergency situation. SECTION 6-INSPECTION OF RECORDS The City shall have access to and the right to review all books, receipts, files, records and documents of the Company necessary or desirable to verify the correctness of the Gross Revenues and to correct the same if found to be erroneous. SECTION 7-INDEMNITY AND HOLD HARMLESS The Company shall hold and save the City, its boazds, officers, employees, agents, and authorized contractors harmless from and against all claims, damages, expense, liability, and costs including attorney fees, azising out of, resulting from or alleged to azise out of or resulting from any and all acts, omissions or failure to act of the Company or its Affiliates, officers, employees, agents, contractors or subcontractors in the construction, operation, maintenance, repair or removal of Telecommunications Facilities, and in providing or offering Telecommunications Service, regazdless of whether such acts or omissions are authorized, allowed or prohibited by this Agreement. In the event such a claim shall be made or such an action shall be instituted against the City, then upon notice and request by the City to the Company, the Company will assume liability for the defense of such actions with counsel acceptable to the City at the cost of the Company. SECTION 8-LOCATION OF TELECOMMUNICATIONS FACILITIES No Telecommunications Facilities shall be wnstructed, installed, repaired, removed, located, relocated or any work performed on the Telecommunications Facilities except in accordance with the following terms and conditions: (a) All Telecormunications Facilities shall be so located as to cause minimum interference with the proper use of Public Ways and to cause minimum interference with the rights and reasonable convenience of property owners who adjoin any of the Public Ways. (b) Whenever any existing electric utilities, cable facilities or Telecommunications Facilities aze located underground within a Public Way, the Company must also locate its Telecommunications Facilities underground. (c) The Company shall not construct, erect, maintain or own any poles within the City unless prior written approval is obtained from the City; such approval shall not be unreasonably withheld upon the Company's showing of need provided the Company has complied with all applicable laws, regulations and ordinances relating to the location of Telecommunications Facilities. SECTION 9-MAINTENANCE The Company shall maintain its Telecommunications Facilities in good and safe condition. SECTION 10-COMPENSATION FOR USE In consideration of the rights and privileges granted to the Company under this Agreement, the Company shall pay to the City a sum equal to five percent (5 %) of Gross Revenues. Payment shall be made monthly thirty days after the end of the applicable calculation month and shall be accompanied by a statement of Gross Revenues for the applicable month. No acceptance of any payment shall be construed as an accord 4 SECTION 18-ASSIGNMENT The rights contained in this Agreement inure to the benefit of the Company, and any pazent, subsidiazy, affiliate or successor entity now or hereafter existing. The rights shall not be assignable to any other person or entity without the express written consent of the governing body of the City, which consent shall not be unreasonably withheld. SECTION 19-NOTICES All notices required to be given to either party under the provisions of this Agreement shall be deemed served when delivered by hand, or 48 hours after being sent by certified United States mail, return receipt requested, in writing to the persons specified below. All notices required to be given the City shall be delivered or mailed to: City of Riverside, Missouri, 4500 High Drive, Riverside, Missouri 64168. All notices required to be given to the Company shall be delivered or mailed to: Brooks Fiber Communications of Missouri, Inc., 425 Woods Mill Road South, Suite 300, Town & Country, Missouri 63017, ATTN: President. SECTION 20-ENTIRE AGREEMENT: AMENDMENT This Agreement represents the entire Agreement between City and the Company, and may be amended only by written instrument, signed by the party against whom enforcement is sought. SECTION 21-SEVERABILITY If a court of competent jurisdiction should hold any section or part of this Agreement, other than Section 10-Compensation for Use, invalid, such holding shall not affect the remainder of this Agreement nor the content in which such section or part so held invalid may appeaz, except to the extent that an entire section or part may be inseparable connected in meaning or affect with that section or part. SECTION 22-CITY'S FAILURE TO ENFORCE The City's failure to enforce and remedy any noncompliance by the Company of the terms and conditions of this Agreement shall not be construed as a wavier of the City's right to enforce such compliance. No waiver shall be effective unless in writing and no waiver shall be construed as a continuing waiver. The parties set their hands to this Agreement the date and yeaz indicated below. CITY OF RIVERSIDE, MISSOURI > ~ ~~ BY{~ c' / .` /C MA O BROOKS FIBER COMMUNICATIONS OF MISSOURI, INC. BY: Name: ~/i~K- ~ Title: r/7GLs ATTEST: ', ~~ ~,/_/y ~.LJ/firc('~'/ it ~.l~i~~~~ict~ CITY CLERK -' ~ ~~ 7