HomeMy WebLinkAboutOrdinances - 23-17 - 04/03/2023 - ROW Agreement i3 Broadband CITY OF MCHENRY
MCHENRY COUNTY
STATE OF ILLINOIS
Ordinance 23-17
An Ordinance Authorizing the Execution of a Right-of-Way Permitting Agreement
Between the City of McHenry and i3 Broadband
Passed by the
Mayor and City Council
Of the
City of McHenry
McHenry County
State of Illinois
Apri13, 2023
Published in pamphlet form by authority of the Mayor and City Council of the City
of McHenry, McHenry County, Illinois this 4th day of Apri12023
ORDINANCE NO. 23-17
An OrclinanceAuthorizing the Execution of a Right-of-Way PermittingAgreement
Between the City of McHenry and i3 Broaclband
WHEREAS, the City of McHenry ("City"), McHenry County, Illinois, is a home rule
municipality as contemplated under Article VII, Section 6, of the Constitution of the State of
Illinois, and the passage of this Ordinance constitutes an exercise of the City's home rule powers
and functions as granted in the Constitution of the State of Illinois; and
WHEREAS, the City owns or controls various public ways within the corporate limits of
the City, including but not limited to highways, roads, streets, lanes, alleys, paths, curbs,
sidewalks, underground water and sewer, or other public ways, public easements, and public
rights-of-way (hereinafter"Public Ways"); and
WHEREAS, i3 Broadband, through its affiliate, iTV-3, LLC, is a holder of a certificate to
provide competitive local exchange carrier service and is thus entitled to access to the City's
Public Ways and desires to utilize the City's Public Ways for the installation of a fiber optic
cable and appurtenances; and
WHEREAS, the City intends to exercise its authority to manage i3 Broadband's use of
the City's Public Ways, all in accordance with and subject to the terms, conditions and
limitations of the City's Title 8, Chapter 7, Construction of Utility Facilities in the Rights-of-
Way, except to the extent specifically modified by a Right-of-Way Permitting Agreement,
attached hereto as Exhibit A, for the mutual convenience of and efficient operations of i3
Broadband and the City; and
WHEREAS, the Mayor and City Council have concluded that the execution of the Right-
of-Way Agreement is in the interests of the health, safety and welfare of the City and its citizens.
NOW, THEREFORE, BE IT ORDAINED by the CITY COLJNCIL of the CITY OF
McHENRY, McHenry County, Illinois, as follows:
SECTION 1: The Right-of-Way Permitting Agreement between the City of McHenry and
i3 Broadband attached hereto as Exhibit A, is hereby approved, and the Mayor and Clerk of the
City are hereby authorized to affix their signatures thereto in their respective official capacities
as the Mayor and Clerk of the City.
SECTION 2: If any section, paragraph, subdivision, clause, sentence or provision of this
Ordinance shall be adjudged by any Court of competent jurisdiction to be invalid, such judgment
shall not affect, impair, invalidate or nullify the remainder thereof, which remainder shall remain
and continue in full force and effect.
SECTION 3: All ordinances or parts of ordinances in conflict herewith are hereby
repealed to the extent of such conflict.
An Ordinance Authorizing the Execution of a Right-of-Way Permitting Agreement
Between the City of McHenry and i3 Broadband, Page 1
SECTION 4: This Ordinance shall be in full force and effect upon its passage, approval
and publication in pamphlet form (which publication is hereby authorized) as provided by law.
Ayes Nays Absent Abstain
Alderman Devine X
Alderman Glab*
Alderman Harding X
Alderman Strach X
Alderwoman Miller X
Alderman Santi X
Alderman McClatchey X
* Alderman Glab did not vote as he was serving as Mayor Pro Tem
APPROVED:
Mayor a ne ett
(SEAL) � �Q-
ATTEST: ""' " �
City Clerk Trisha Ramel
Passed: A�ril3 2023
Approved: A�ri13 2023
Z:IMIMcKenryCityof IOrdinanceslROW Agreement.i3Broadband.doc
An Ordinance Authorizing the Execution of a Right-of-Way Permitting Agreement
Between the City of McHenry and i3 Broadband, Page 2
CERTIFICATION
I, Monte Johnson, do hereby certify that I am the duly appointed, acting and qualified
Deputy Clerk of the City of McHenry, McHenry County, Illinois, and that as such Clerk, I am
the keeper of the records and minutes and proceedings of the Mayor and Aldermen of said City
of McHenry.
I do hereby further certify that at a regular meeting of the Mayor and Aldermen of the
City of McHenry, held on the 3rd day of April, 2023, the foregoing Ordinance entitled An
Ordinance Authorizing the Execution of a Right-of-Way Permitting Agreement Between the City
of McHenry and i3 Broadband, was duly passed by the City Council of the City of McHenry.
The pamphlet form of Ordinance No 23-171 including the Ordinance and a cover sheet
thereof, was prepared, and a copy of such Ordinance was posted in the City Hall, commencing
on the 4th day of April 2023, and will continue for at least 10 days thereafter. Copies of such
Ordinance are also available for public inspection upon request in the office of the City Clerk.
I do further certify that the original, of which the attached is a true and correct copy, is
entrusted to me as the Clerk of said City for safekeeping, and that I am the lawful custodian and
keeper of the same.
GIVEN under my hand and seal this 4�" day of Apri12023.
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_ '����,• Monte Johnson, Deputy City Clerk
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to contracts or agreements with CLEC, and CLEC agrees that all parties contracting with
CLEC for any part of the Installation Project shall be bound by the terms and conditions of this
Agreement and by the Municipality's Right of Way Ordinance, other than as modified by this
Agreement.
5. 'Two .Stage Permitting Procedure.
a. The Parties agree that the permitting process for the Installation Project may take place
in two stages. The intent of this two -stage process is to streamline the process for both
parties, and to ensure that the Parties' resources can be expended in the most efficient
manner possible.
b. First, the CLEC must annually apply for and obtain a "Master Permit" pursuant to this
Agreement. The Master Permit is intended to provide the Municipality with generally
applicable information about the CLEC Installation Project proposed to be undertaken
within the Municipality.
c. Thereafter; for each Individual Installation, the CLEC may provide only such additional
information as is described in this Agreement related to each Individual Installation.
d. Unless the Parties mutually agree otherwise, in writing, the application for a Master
Permit trust be submitted at least thirty (30) days before the, CLEC intends to begin
work in the Municipality's rights of way, and the Municipality shall have twenty-five
(25) days to respond to any such Master Permit application.
e. Unless the Parties mutually agree otherwise, in writing, the application for any
Individual Installation project; must be submitted at least 10 days before the CLEC
intends to begin work in the Municipality's rights of way for that Individual
Installation, and the Municipality shall have seven (7) clays to respond to any such
Individual Installation application.
6. Master Permit Application for Installation Project. CLEC may satisfy certain permit
requirements annually rather than for each Individual Installation by completing a master permit
application (the "Master Application") for the Installation Project. Once the requirements of the
Master Application have been met, the Municipality shall issue a permit (the "Master Permit")
which authorizes the CLEC to proceed to the Stage Two permit process for each Individual
Installation. The following items must be submitted annually (and updated if information changes)
to be eligible for a twelve-month long Master Permit:
a. The CLEC's corporate time and address, telephone and fax numbers, and an e-mail
address and cell phone number for a contact person, as well as such information for a local
contact, if different.
b. The CLEC's subcontractor's name and address. if different than the CLEC, its telephone
and fax numbers, and an e-mail address and cell phone number for a contact person, as
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well as such information for a local contact, if different, and a description of its interest in
the work.
c. The names, addresses and telephone and fax numbers, and e-mail addresses of all
professional consultants, if any, advising the CLEC with respect to the application.
d. A detailed description of the proposed work and the purposes and intent of the facilities to
be installed and the uses to which the facilities will be put. The scope and detail of such
description shall be appropriate to the nature and character of the work to be performed,
with special emphasis on those matters likely to be affected or impacted by the work
proposed.
e. A written traffic control plan demonstrating the protective measures and devices that will
be employed consistent with the: Illinois Manual on Uniform Traffic Control Devices, to
prevent injury or damage to persons or property and to minimize disruptions to efficient
pedestrian and vehicular traffic.
f. An emergency contingency plan which shall specify the nature of potential emergencies,
including, without limitation, construction and hazardous materials emergencies, and the
intended response by the CLEC. The intended response shall include notification to the
Municipality and, shall promote protection of the safety and convenience of the public.
Compliance with ICC regulations for emergency contingency plans constitutes compliance
with this section unless the Municipality finds that additional information or assurances are
needed.
g. Evidence of insurance as required by the Right of Way Ordinance that will cover all
Installation Project work of CLEC in the Municipality plus evidence of professional
liability insurance of one million dollars ($1,000,000.00).
h. Submission to the Municipality of a Performance Bond:
i. The Performance Bond shall be in a form acceptable to the Municipality.
ii. The Performance Bond shall be for $50,000, unless the CLEC is working on greater
than two Individual Installations at the same time, in which case the Municipality
may require a bond in a dollar amount sufficient to provide for one hundred twenty
five percent (125%) of 'the reasonably estimated cost to restore the right-of-way for
all such Individual Installations to at least as good a condition as that existing prior
to the construction project proposed under the Master Permit, as determined by the
Director of Public Works. Notwithstanding the requirement to post a greater bond
amount in the event that more than two Individual Installations are underway at the
same time, the CLEC shall not be required to post a total Performance Bond in an
amount greater than $100,000.
iii. The Performance Bond may be called upon to address any and all liens and all
damages, claims, costs or expenses that the Municipality may pay or incur by
reason of any action or nonperformance by CLEC in violation of this Agreement
and the applicable provisions of the Municipality's Right of Way Ordinance for the
Installation Project, including, without limitation, any damage to public property or
restoration work the CLEC was required to perform, but that the Municipality must
perform itself or have completed as a consequence solely of the CLEC's failure to
perform or complete, and all other payments due the Municipality from the CLEC
pursuant to this; Agreement and. to the applicable provisions of the Municipality's
Right of Way Ordinance.
iv.. Only where the construction of facilities proposed under the Master Permit will be
performed in phases in multiple locations in the City, with each phase consisting of
construction in multiple locations, but where construction in one location will not
be undertaken prior to substantial completion of restoration in the previous location,
then the Public Works Director may, in the exercise of sound discretion, allow the
CLEC to post a single amount of security which shall be applicable to each phase
or location of the construction under the Master Permit. The amount of the Bond
for such phased construction shall be equal to the greatest amount that would have
been required under the provisions of this section for any single phase or location
(or equal to the amount for multiple locations if construction will be occurring in
more than one place at a time).
v. This Performance Bond shall be continuously maintained at the CLEC's sole cost
and expense until the completion of the Installation Project.
i. All licenses and regulatory authorizations issued by any agency authorizing the provision
of the services to be provided.
j. A. master landscape plan, if, in the opinion of the Director of Public Works, any is
appropriate for the Installation Project.
k. At least one customer service contact name, number and e-mail address that the
Municipality may provide to members of the public with any complaints or comments
about CLEC service or work in the public ways.
7. Permit Requirements for Individual Installations. Once a Master Permit has been issued by
the Municipality, CLEC shall only be required to submit such additional information as may be
required by this section for each Individual Installation location within the Municipality, These
shall include, but not necessarily be limited to, the following;
a. Updates to any written traffic control and emergency contingency plan already on file with
the Master Permit application, only if either will change for the Individual. Installation. If
any traffic interference or lane closures will be necessitated by an Individual Installation,
CLEC must give municipality at least three business days' notice.
b. For the Individual Installation, drawings, plans and specifications showing the work
proposed, including engineering plans depicting the Individual Installation in detail, and
the certification of an engineer that such drawings, plans and specifications comply with
applicable codes, rules and regulations. Drawings shall include a location map, dimensions
of the right-of-way line and a legend of all symbols.
c. Any request for a variance from one or more provisions of the Right of Way Ordinance
pursuant to the variance provisions of that Ordinance.
d. A detailed site plan showing the preferred location of the proposed facilities (subject to
One -Call marks) including any existing apparent structure and any apparent adjacent
improvements.
e: A specific landscape plan or update, if, in the opinion of the Director of Public Works., any
is appropriate for the Individual Installation..
f. Such additional information as .may be reasonably required by the Municipal permitting
authority to protect the public's health, safety, and welfare.
8. Variations. The Parties agree that the Municipality's Public Works Director may exercise
discretion in determining whether an item identified in this Agreement applies to the
particular circumstances of a Master Application Permit or an individual Installation
permits and may waive a requirement or modify it to better fit the circumstances of the
specific application pursuant to the Variation Procedure of the Municipality's Right of Way
Ordinance.
9. Fees and Costs. Municipality shall not impose any permit fees. inconsistent with the
requirements of 35 ILCS 635/30, but all Parties agree that the Municipality may recover
third -party engineering and other third -party costs incurred in the review of any
installations or permit requests. By executing this Agreement, the CLEC agrees to
reimburse the Municipality for all reasonably incurred third -party engineering and other
third -party costs within 30 days of receipt from the municipality of an invoice or other
documentation of such costs. The Municipality shall endeavor to keep the CLEC informed
of the need for any third party review associated with any installations or permit requests.
10. Miscellaneous Provisions.
a.. Transferability of Agreement. The CLEC's right, title, or interest in this Agreement
shall not be sold, transferred, assigned, or otherwise encumbered, other than to an entity
controlling, controlled by, or under common control with the CLEC, without prior
written notice to Municipality. No such notice shall be required, however, for a transfer
in trust, by mortgage, by other hypothecation, or by assignment of any rights, title, or
interest of the CLEC in its fiber optic network in order to secure indebtedness.
b. Specific Performance. This Municipality may seek specific performance of the
CLEC's specific performance of this Agreement if after written notice by Municipality
to CLEC of the occurrence or existence of a default or material breach, CLEC, faits to
cure, or commence good faith efforts to cure, such default or maternal breach within 45
days after delivery of such notice. The Municipality may also seek monetary damages
for its provable damages from any such breach.
c. Indemnification. The indemnification provisions of the Right of Way Ordinance shall
extend to and include any matters associated with or arising out of this Agreement.
d. No Joint Venture or Partnershin. This Agreement shall not be construed so as to
create a joint venture, partnership, employment, or other agency relationship between
the parties hereto.
e. Joint and Collective Work Product. This Agreement is and shall be deemed and
construed to be a joint and collective work: product of Municipality and CLEC, and as
such, this Agreement shall not be construed against one party as the otherwise
purported drafter of the same by any court of competent jurisdiction in order to resolve
any inconsistency, ambiguity, vagueness or conflict, if any, in the terms or provisions
contained herein.
E Severability. If any provision of this Agreement is held unenforceable by any court
having jurisdiction, no other provisions will be affected, and the court will modify the
unenforceable provision (consistent with the intent of the parties as evidenced in this
Agreement) to the minimum extent necessary so as. to render it enforceable.
g, Governing Law. This Agreement shall be subject to and governed by the laws of the
State of Illinois. Venue for the resolution of any disputes or the enforcement of any
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rights arising out of or in connection with this Agreement shall be in the Circuit Court
for McHenry County, Illinois.
h. Counterparts. This Agreement may be executed in multiple counterparts, each of
which shall be deemed an original, but all of which together shall constitute one and
the same instrument,
i, Paragraph Headings. Paragraph headings are inserted for convenience only and in no
way limit or define the interpretation to be placed upon this Agreement.
j. Entire Agreement. This Agreement constitutes the entire agreement and understanding
between the parties and supersedes any prior agreement or understanding relating to
the subject matter of the Agreement. This Agreement may be changed, modified or
amended only by a duly authorized written instrument executed by the parties hereto.
k. Notices. Any notice required or permitted under this Agreement shall be in writing and
shall be sufficient if personally delivered or mailed by certified mail, return receipt
requested, addressed as follows:
To Municipality:
City Administrator Derik Morefield
City of McHenry
333 S. Green Street
McHenry, IL 60050
To the CLEC:
Clint Streit, General Manager Northern Illinois
D Broadband
602 High Point Lane
East Peoria, IL 61611
Notices mailed in accordance with the provisions of this paragraph shall be deemed
to have been given on the third business day following mailing. Notices personally
delivered shall be deemed to have been given upon delivery.
RV IfITNESS OWEREOF, each of the parties hereto has caused this Agreement to be
executed by its duly authorized representatives as of the day and year first above written.
City of McHenry, Illinois i3 Br d
By: By
Wayne Jett, Mayor Clint Streit, Gen ral Manager
Northern Illinois
ATTEST: � � W�-tA
Trisha Ramel, City Clerk
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