Chapter 26 - Existing Franchise Ordinances
Division 12 - McLEODUSA Telecommunications Services, Inc.
SEC. 26.12-1 WHEREAS, McLeodUSA Telecommunications Services, Inc. organized under the Laws of the State of Iowa authorized to do business in the State of Illinois (hereafter also designated as Grantee), has petitioned the Town of Normal, Illinois, asking that the right, permission and authority be granted to it by ordinance to install, maintain, repair, replace, and use a fiber optic cable within certain public rights-of-way; and
SEC. 26.12-2 WHEREAS, the Town of Normal and Grantee have agreed upon the terms, provisions, and conditions granting permission and authority to use certain public rights-of-way all as hereafter set forth.
NOW, THEREFORE, BE IT ORDAINED BY THE PRESIDENT AND BOARD OF TRUSTEES FOR THE TOWN OF NORMAL, ILLINOIS:
SEC. 26.12-3 That for the mutual and other valuable considerations as herein provided, the right, permission, and authority are hereby given and granted to McLeodUSA Telecommunications Services, Inc. upon the terms and subject to the conditions of this Division to install, maintain, repair, replace, and use a fiber optic cable within the certain named public rights-of-way. Said cable may occupy the following public rights-of-way: All as set forth on plans on file in the Office of the Town Clerk. A general depiction of said plans is attached hereto as Exhibit A. The permission and authority herein granted shall not be exercised and no work done until a permit authorizing the same shall have been issued by Grantor and the payment of any applicable fee and tax.
SEC. 26.12-4 The above described uses of the public ways shall exist by authority herein granted for a period of 20 years from and after the date of passage of this Ordinance.
SEC. 26.12-5 The exact location of said privilege shall be as shown on prints attached hereto, which by reference are made a part of this Division. Said cable shall be installed, maintained, repaired, replaced, and used in accordance with the ordinances of the Town of Normal and the regulations of the Public Works Director.
SEC. 26.12-6 The privilege herein granted may not be transferred or assigned to any other person or entity without the written consent of Grantor.
SEC. 26.12-7 Grantee acknowledges that Grantor has enacted an ordinance imposing a telecommunication infrastructure maintenance fee and that Grantee is a telecommunications retailer as defined in that ordinance. Grantee understands that it will be required to pay a telecommunication infrastructure maintenance fee in accordance with Town Code and that nothing in this Agreement intends to waive payment of that fee.
SEC. 26.12-8 In the event the privilege herein granted is terminated, expires, or the Grantee vacates the premises, the Grantee shall nevertheless remain liable to the Town of Normal under the provisions hereof until all cable and supporting structures herein authorized are removed and the public way is restored as herein required.
SEC. 26.12-9 All structures hereafter installed shall be so placed and all work in connection with such installation shall be so performed as not to interfere unreasonably with ordinary travel on the highways of the Town of Normal or with any municipally owned facilities then in place or hereafter placed. Grantee, after doing any excavating, shall leave the surface of the ground in the same condition as existed prior to such excavation. All sidewalks, parkways, or pavements disturbed by Grantee shall be restored by it; and the surface to be restored shall be the same or similar type construction as that previously existing prior to its being disturbed; and in the event that any such sidewalk, parkway, or pavement shall become uneven, unsettled, or otherwise requires repairing because of such disturbance by Grantee, then Grantee, as soon as climatic conditions will permit, shall promptly upon receipt of notice from the Town of Normal so to do, cause such sidewalk, parkway, or pavement to be repaired or restored to as good condition as before said sidewalk, parkway, or pavement was disturbed by Grantee.
SEC. 26.12-10 This grant of authority is subject to amendment, modification, or repeal; and permission and authority herein granted may be revoked by the Town of Normal if Grantee fails or neglects to comply with this grant of authority, but only after being given a reasonable amount of time to cure any defaults. Upon the determination by the Town of Normal that it is necessary to relocate said cable or structures, the Town shall give Grantee 60 days written notice that relocation is necessary, and the Grantee shall relocate the cable and structures and shall bear the sole expense of relocation. If Grantee’s proposed plan of relocation is not acceptable to the Town of Normal, the Town shall cooperate with Grantee in attempting to relocate Grantee’s cable and other structures on Town-owned property. Upon termination of the privilege herein granted by lapse of time or otherwise, the Grantee, without cost or expense to the Town of Normal, shall remove the cable and structures herein authorized and restore the public way to a proper condition under the supervision of the Director of Public Works. In the event of the failure, neglect, or refusal of said Grantee to remove the cable and other structures, the Town of Normal will have the choice of either performing said work and charging the cost thereof to said Grantee or determining what the cost of said work shall be and billing the Grantee for said cost, proceeding against the surety bond posted by Grantee as hereafter provided, or pursue any other remedies provided by law.
SEC. 26.12-11 Grantee shall hold and save the Town of Normal harmless from any and all liability and expense, including judgments, costs, and damages, arising out of the installation, removal, relocation, alteration, repair, maintenance, restoration, or any other way connected with the cable or structures herein authorized, and from any and all damages thereto on account of the location, construction, alteration, repair, or maintenance of any public ways, bridges, subways, tunnels, vaults, sewers, water mains, conduits, pipes, poles, and other utilities.
SEC. 26.12-12 Grantee agrees to furnish the Town of Normal a surety bond written by a company authorized to do business within the State of Illinois in the amount of $10,000. Said bond shall be in existence during the term of this Agreement and shall be conditioned upon Grantee’s performance of its obligations pursuant to this Agreement. In the event Grantee, after reasonable notice, fails to perform pursuant to the terms of this Agreement, then the Town of Normal may in addition to other remedies recover on the surety bond. The Director of Public Works is hereby authorized to determine what cost would be involved to perform any obligation of Grantee hereunder, and present said claim to Grantee and the surety company together with a date by which said performance will begin. The Grantee or the surety company shall make payment to the Town of Normal on said claim within a reasonable time, but in any event, payment shall be made prior to the date performance of said obligation is scheduled to begin as set forth in the claim presented by the Director of Public Works to Grantee and the surety company.
SEC. 26.12-13 Grantee agrees to furnish the Town of Normal, prior to issuance of a permit for this privilege, a copy of proof of insurance (certificate of insurance) in an amount not less than $1 million combined single limit with said insurance covering all liability, both public liability and property damage, that may result from the granting of this privilege to Grantee. The aforementioned insurance coverage shall be maintained at all times by the Grantee until the cable or structures described in this grant of authority are removed and the public way is restored as herein required. The aforementioned insurance coverage shall name the Town of Normal as an additional insured.
SEC. 26.12-14 Grantee shall, at its own expense, defend all suits and does agree to indemnify and save harmless the said Town of Normal and its officers and employees from and against any and all claims and liabilities of whatever nature arising from the granting of authority herein to Grantee or imposed upon or assumed by it, or by reason of or in connection with any damage of life, limb, or property as a result of any of the structures constructed by it under or by virtue of this Agreement, and shall save and keep harmless the Town of Normal from any and all damages, judgments, costs and expenses of every kind, that may arise by reason thereof; provided that notice in writing shall be immediately given to Grantee of any claim or suit against the Town of Normal which, by the terms hereof, the Grantee shall be obligated to defend or against which the Grantee has hereby agreed to save and keep harmless the Town of Normal and provided further that the Town of Normal shall furnish to said Grantee all information in its possession relating to said claim or suit, and cooperate with said Grantee in the defense of any said claim or suit. The governing body of the Town of Normal may, if it so desires, assist in defending any such claim or suit. The Grantee will not rely upon governmental immunity afforded to the Town of Normal, and further agrees that it will pay the costs incurred by the Town of Normal for the necessary defense of any suit not only against the Town of Normal but also against its officers and employees resulting from this franchise grant.
SEC. 26.12-15 The Grantee agrees to hold harmless and indemnify the Town of Normal against any and all damages and claim arising out of damage to the fiber optic cable or structures done in whole or in part by the Town of Normal, its officers, employees, and agents, except as hereinafter set forth, Grantee waives all claims against the Town of Normal, whether arising directly, by subrogation, assignment, or otherwise, for any and all damages, direct or indirect, resulting from damage to the fiber optic cable or structures done in whole or in part by the Town of Normal, its officers, employees, and agents. Such indemnification shall not include damage or injury which arise out of the Town of Normal's willful misconduct, including the failure by the Town of Normal, or its agents and employees to contact the Illinois JULIE system prior to excavation or construction. Grantee retains the right to recover damages from employees of the Town of Normal for willful and wanton damage to Grantee's property, but said retention shall in no way create any liability for the Town of Normal.
SEC. 26.12-16 Unless otherwise provided herein, Grantee agrees to abide by all Town of Normal ordinances, rules, and regulations governing the use of municipal property, municipal rights-of-way, and other matters.
SEC. 26.12-17 This Agreement shall be in full force upon receipt by the Town Clerk of the company's written and unconditional acceptance of all the provisions of this Agreement executed by its proper officers there unto duly authorized under the corporate seal of said company and attested by its Secretary or Assistant Secretary.
SEC. 26.12-18 This Agreement may only be amended in writing.
SEC. 26.12-19 Grantee shall take all necessary steps as to insure that the location of its fiber optic line and all other structures is on record with JULIE or such other State-Wide-One-Call Notice System as may be in place pursuant to the Illinois Underground Utility Facilities Damage Prevention Act (220 ILCS 50/l et. seq.)
SEC. 26.12-20 Grantee agrees any litigation involving this agreement shall be filed and prosecuted in McLean County, Illinois.
SEC. 26.12-21 Notices required under this agreement shall be sent by the Town of Normal to McLeodUSA Telecommunications Services, Inc., OSP Engineering, 2910 Westown Parkway, Suite 300, West Des Moines, Iowa 50266; Attention Mr. Kelly Wingfield, Permit Manager. Grantee shall send notices required under this agreement to Town Clerk, Town of Normal, Normal City Hall, P.O. Box 589, Normal, Illinois 6l761.
(Entire Division 12 Added June 21, 1999 by Ord. No. 4601)