HomeMy WebLinkAboutORDINANCES-2003-078-O-0307/23/2003
78-0-03
AN ORDINANCE
Authorizing the City Manager to
Execute an Easement Agreement with
Northwestern University for Subsurface
Installation of a Telecommunications System
WHEREAS, the City of Evanston is an Illinois municipal corporation having home
rule powers under Article VII of the 1970 Illinois Constitution; and
WHEREAS, among the powers granted to a home rule unit by Article VII, Section VI
of the 1970 Illinois Constitution is that to exercise any power and perform any function
pertaining to its government and affairs; and
• WHEREAS, a cooperative effort to create a telecommunications system with
Northwestern University ("Northwestern"), institution of higher learning located at 633 Clark
Street, Evanston, Illinois 60208 pertains to the government and affairs of the City in that it
will expedite telecommunications between City Departments; and
WHEREAS, Article VI I, Section X of the 1970 Illinois Constitution allows the City, as
a unit of local government, to contract with corporations to share services and combine
functions; and
WHEREAS, the City and Northwestern had previously entered into an Easement for
Telecommunications on July 5, 1984, which Easement with its amendments on December
22, 1986, July 8, 1994, and March 9, 1999, provided for installation and maintenance of a
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telecommunications system in the City's right-of-way (the "1984-2003 Easement"); and
78-0-03
WHEREAS, the telecommunications system installed pursuant to the 1984-2003 •
Easement remains in situ and in operation, serving Northwestern; and
WHEREAS, the continuation of that service is in the best interests of the citizens of
Evanston; and
WHEREAS, the 1984-2003 Easement Properties are legally described in Exhibit A
and pictorially represented in the route map in Exhibit B, both of which Exhibits are
attached to the Easement Agreement; and
WHEREAS, the City is desirous of connecting certain of its City buildings with a
single mode fiber optic cable system (fiber optic cable system); and
WHEREAS, this fiber optic cable system will provide the City with a high
performance system capable of the gigabit speed of one billion bits per second; and 0
WHEREAS, installation of the fiber optic system requires boring for underground
conduits with no above -ground lines except for fiber entry points into the buildings; and
WHEREAS, Northwestern is desirous of establishing additional fiber optic
capabilities to serve its Evanston facilities; and
WHEREAS, Northwestern is desirous of entering into an agreement with the City for
shared use of the underground conduits and installation therein of this additional fiber optic
system; and
WHEREAS, Northwestern has agreed to undertake at its sole cost and be solely
responsible for installation of the City's fiber optic cable system, to pay the City an annual
easement fee, and to give other consideration, in exchange for the right to install and
maintain its own fiber optic cable system; and •
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78-0-03
0 WHEREAS, said Article VII, Section X of the 1970 Illinois Constitution allows the
City to contract with Northwestern to share services and combine functions by continuing
the 1984-2003 telecommunications system and by providing for a new shared system; and
WHEREAS, the City and Northwestern have determined that joint action is the most
effective way to accomplish the above -described purposes; and
WHEREAS, the City and Northwestern have authorized the execution of this
Agreement as an exercise of the City's Intergovernmental Authority and Northwestern's
corporate authority; and
WHEREAS, execution of said Agreement is in the best interests of the citizens of
Evanston,
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
• EVANSTON, COOK COUNTY, ILLINOIS:
SECTION 1: That the City Manager is hereby authorized and directed to sign, and
the City Clerk is hereby authorized and directed to attest on behalf of the City of Evanston,
an Easement Agreement, attached hereto as Exhibit 1 and made a part hereof, between
the City, as Grantor, and Northwestern University, as Grantee, providing for installation and
maintenance of a telecommunications in the City's right-of-way.
SECTION 2: That the City Manager is hereby authorized and directed to negotiate
any additional terms of the Agreement as may be determined to be in the best interests of
the City.
SECTION 3: That all ordinances or parts of ordinances in conflict herewith are
• hereby repealed.
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78-0-03
SECTION 4: That this Ordinance shall be in full force and effect from and after
its passage, approval, and publication in the manner provided by law.
Introduced: 2003
Adopted: D , 2003
Approved:
VLC 26 . , 2003
ATTEST: Mayor
ity Clerk
A» oved as to form: I if
v Corporation Coun
•
Final Signature Version
EASEMENT FOR COMMUNICATIONS SYSTEM AND AGREEMENT TO BUILD A
FIBER OPTIC CABLE SYSTEM FOR THE CITY OF EVANSTON
THIS AGREEMENT is made and entered into effective as of this a 7- day of
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2003
(the "Effective
Date"), by and
between
the City of Evanston
(hereinafter
called
"City"), and
Northwestern
University
(hereinafter called
"Northwestern").
WHEREAS, the City of Evanston is an Illinois municipal corporation having home
rule powers under Article VII of the 1970 Illinois Constitution; and
WHEREAS, among the powers granted to a home rule unit by Article VII,
Section VI of the 1970 Illinois Constitution is that to exercise any power and perform any
function pertaining to its government and affairs; and
WHEREAS, a cooperative effort to create a communications system with
Northwestern University, an institution of higher learning and Illinois corporation located
at 633 Clark Street, Evanston, Illinois 60208 pertains to the government and affairs of
the City in that it will expedite communications between City Departments; and
WHEREAS, Article VII, Section X of the 1970 Illinois Constitution allows the City,
as a unit of local government, to contract with corporations to share services and
combine functions; and
WHEREAS, the City and Northwestern had previously entered into a thirty-year
agreement establishing easements for Telecommunications on July 5, 1984, which
agreement with its amendments on December 22, 1986, July 8, 1994, and March 9,
1999, provided for installation and maintenance of a telecommunications system in the
City's right-of-way (the "1984-2013 Easement"); and
WHEREAS, the payment rates under the 1984-2013 Easement expired on July
5, 2003 and the City and Northwestern have decided to supercede the terms of the
1984-2013 Easement with the terms of this Agreement; and
WHEREAS, the telecommunications system installed pursuant to the 1984-2013
Easement remains in situ and in operation, currently serving properties that
Northwestern owns, properties that Northwestern leases from others, the main
Evanston Public Library, and those buildings located in what was formerly referred to
as the Evanston Research Park whose addresses are set forth in Exhibit K attached
hereto (hereafter collectively referred to as the "Research Park Buildings"); and
WHEREAS, the continuation of that service is in the best interests of the citizens
of Evanston; and
WHEREAS, legal descriptions of the Northwestern easements currently existing
under the 1984-2013 Easement are set forth in Exhibit A and pictorially represented in
the route map appearing as Exhibit B, both of which Exhibits are attached hereto and
made a part hereof. Such existing Northwestern easements are hereafter referred to as
the "Existing Northwestern Easements"; and
WHEREAS, Northwestern wishes to expand its fiber optic cable system in
Evanston, and to do so Northwestern has requested additional communications
easements from the City at the properties with the legal descriptions set forth in Exhibit
C and pictorially represented in the route map appearing as Exhibit D, both of which
Exhibits are attached hereto and made a part hereof. Such proposed Northwestern
easements are hereafter referred to as the "New Northwestern Easements"; and
WHEREAS, the City wishes to improve its communications capabilities and
expand its emergency dispatch back-up capabilities, particularly by connecting 15 City
buildings that serve the public safety and emergency needs of the community, including
the Evanston Police Station, and Evanston Fire Stations Nos. 1, 2, 3, 4, and 5, with a
single mode fiber optic cable system laid out in accordance with the Logical Fiber Plan
of City Buildings set forth in Exhibit E attached hereto and made a part hereof (the
"Logical Fiber Plan"); and
WHEREAS, such improvements are in the best interests of the citizens of
Evanston;
WHEREAS, the Logical Fiber Plan contemplates that the City's fiber optic cable
system will use conduits built and maintained by Northwestern that are located on
Northwestern's property or in easements that Northwestern has or will obtain from the
City;
WHEREAS, installation of a fiber optic system generally requires boring for
underground conduits with no above -ground lines except for fiber entry points into the
buildings; and
WHEREAS, in exchange for rights to continue using the Existing Northwestern
Easements and acquiring rights to use the New Northwestern Easements Northwestern
has agreed to conduct a competitive bid process and include minority, women,
disadvantaged and local business enterprises ("M/W/D/LBE's") in its consideration of
contractors in accordance with the minority participation program guidelines of the
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Northwestern University Information Technology Department attached hereto as Exhibit
L , select a qualified contractor, and provide project management services needed to
install, terminate and test both the City's new fiber optic cable system and
Northwestern's expanded fiber optic cable system, and maintain portions of the City's
fiber optic cable system, all at Northwestern's cost as described in the Fiber Plan,
Implementation and Post -Implementation document attached as Exhibit F hereto ; and
WHEREAS, said Article VII, Section X of the 1970 Illinois Constitution allows the
City to contract with Northwestern to share services and combine functions by
continuing the 1984-2013 communications system and by integrating it into a new Total
Fiber Plan as shown in Exhibit G attached hereto that both the City and Northwestern
will utilize; and
WHEREAS, the City and Northwestern have determined that joint action is the
most effective way to accomplish the above -described purposes; and
WHEREAS, the City and Northwestern have authorized the execution of this
Agreement as an exercise of the City's Intergovernmental Authority and Northwestern's
corporate authority; and
WHEREAS, Grantor's City Council enacted Ordinance 78-0-03 on
, 2003, , a copy of which is attached hereto as Exhibit J, to authorize the
City Manager to execute this Agreement; and
WHEREAS, the purposes, powers, rights, objectives, and responsibilities of the
City and Northwestern under this Agreement are fully set forth herein.
NOW, THEREFORE, in consideration of the mutual agreements contained
herein and in the further consideration of the recitals hereinabove set forth, it is hereby
agreed by and between City and Northwestern, as follows:
1. The foregoing recitals are found as fact and made a part hereof.
2. Easement and License Grants:
A. City hereby grants and conveys to Northwestern, and its successors and
agents (collectively, "Northwestern"), an easement to install, maintain,
operate, replace, upgrade, and remove a buried communications system,
in and under the City's public ways, as located and described in Exhibits A
and Exhibit B hereto, such easements referred to hereafter as the
"Existing Northwestern Easements". To enable Northwestern to expand
its fiber optic cable capabilities City hereby further grants and conveys to
Northwestern additional easement property with the same rights as
granted immediately above in the areas described in proposed Exhibit C,
which will be updated after construction by Northwestern, and represented
in Exhibit D attached hereto, such easements referred to hereafter as the
"New Northwestern Easements". The Existing Northwestern Easements
and the New Northwestern Easements are hereafter referred to
collectively as the "Northwestern Easements'.
B. Northwestern hereby grants the City an irrevocable license to locate
during the term of this Agreement the City's fiber optic cable in the same
Northwestern -owned conduits located on Northwestern's property or in the
Northwestern Easements located on the City's property as Northwestern
uses for its own fiber optic cable system as indicated on the map entitled
"Total Fiber Plan" attached as Exhibit G hereto and in variations to such
locations to the extent that these Northwestern conduits are relocated
during the term of this Agreement (the "License").. Northwestern or a
general contractor retained by Northwestern shall be entitled to use the
area below the surface described in the Northwestern Easements to
trench, bore, and direct bury a communications system. Northwestern or
such general contractor may carry out such core drill boring operations
and other subsurface work as may be necessary for the purposes of
Northwestern or the City. The License does not create an interest in real
estate and the City acknowledges that the City does not and shall not
claim at any time any interest or estate of any kind or extent whatsoever in
any Northwestern -owned property by virtue of this Agreement or the City's
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use of Northwestern property and Northwestern Easements to lay
portions of the City's Fiber.
C. The parties agree to cooperate fully to accomplish the Total Fiber Plan as
depicted in Exhibit G attached hereto. Northwestern agrees to cause the
general contractor to apply for, and the City agrees to issue when the
application is complete, two street opening permits for construction of the
Total Fiber Plan: one for the North section of the Total Fiber Plan at a
permit fee of $250, and a second permit for the South section of the Total
Fiber Plan at a permit fee of $250. For the scope of work contemplated
by the Total Fiber Plan, no other permits are anticipated to be required for
construction of the Total Fiber Plan.
D. Northwestern, its successors, and agents, in performing the work
necessary to carry out the purposes for which the Northwestern
Easements are granted, shall not interfere with or obstruct traffic
without first having notified the City of Evanston Engineering
Department as to the date and time period during which such
obstruction will exist and received City approval therefor.
E. In performing its work, Northwestern, its successors and agents,
will cause no permanent interference with, or obstruction to,
entrances to public or private property. In the event temporary
obstruction is necessary, Northwestern will notify the City of
Evanston Engineering Department in writing. Wherever possible
Northwestern will keep such temporary obstruction to a minimum of
time. The City shall be responsible for providing advance written
notification to residences in the affected area The City further
agrees to place a notice of the City's construction of the Total Fiber
Plan in the City's newsletter "Highlights" and on the City's website.
The City shall provide Northwestern with a copy of the text of any
notice or posting described in this Section 2.C. prior to the
publication of such items.
F. Northwestern shall not make, or cause to be made, any subsurface
installation and shall not break or cause to be broken, the
pavement surface of the City of Evanston sidewalks or street right-
of-way and shall not undertake any excavation without first notifying
the Public Works Department of the City of Evanston in writing. All
work shall be done in accordance with the requirements of the
Public Works Department and applicable codes and pavement
surfaces shall be restored promptly after completion of work at the
site.
G. The City shall be the contact point for the "JULIE" (the Joint Utility
Locating Information for Excavators) notification system and will
M
then notify Northwestern when a JULIE request is received. The
City shall be responsible for physically marking City Fiber not
located in Northwestern Easements. Northwestern shall be
responsible for physically marking Northwestern property and
Northwestern Easement Fiber locations pursuant to "JULIE"
requests. In the event that the JULIE system is replaced, the City
and Northwestern agree to file such notices and make such
markings in accordance with the requirements of any successor
utility identification system.
H. In the event the City shall require the relocation of any Northwestern
conduits, vaults and hand -holes located in Northwestern Easements that
contain only Northwestern Fiber, in order for the City to relocate, improve
or modify any public street or right-of-way for reasons unrelated to the
Deep Tunnel project, then the cost of relocation of such installation shall
be at Northwestern's sole cost. For relocations of Northwestern conduits,
vaults and hand -holes required by the City to accommodate the Deep
Tunnel construction, the cost of any such relocation shall be equally split
between Northwestern and the City. In the event the City shall require
the relocation of any City conduits, vaults and hand -holes located on City
property but not in a Northwestern Easement in order for the City to
relocate, improve or modify any public street or right-of-way, then the cost
of relocation of such installation shall be at the City's sole cost. In the
event the City shall require the relocation of any conduits, vaults and
hand -holes containing City Fiber and Northwestern Fiber located in a
Northwestern Easement in order for the City to relocate, improve or modify
any public street or right-of-way, then the cost of relocation of such
installation shall be equally split between Northwestern and the City. In
those instances where Northwestern and the City will share in the cost of
any necessary relocation work described in this Section 3.F. Northwestern
shall perform or engage a contractor to perform the relocation services.
Where a contractor is retained Northwestern agrees to obtain competitive
quotes for the work, and obtain the City's written approval before
proceeding, such approval not to be unreasonably withheld, delayed or
conditioned. For all such relocation charges to be reimbursed by the City,
Northwestern shall submit itemized statements.
I. Northwestern shall use the communications system located on City
easement property provided for by this Agreement for the business
purposes of Northwestern, its tenants, its affiliates, and occupants
of the Research Park Buildings. Northwestern shall not sell or
lease to, or allow to be used by, anyone other than Northwestern
University, its tenants, its affiliates, occupants of the Research Park
Buildings or the City, Northwestern's communications system that
is located on City easement property, whether said use is or is not
for a fee.
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3. Fiber Optic Cable System for the City:
A. Northwestern at its sole cost shall contract for and install the City's fiber
optic cable system and expand Northwestern's fiber optic cable system in
two phases. The parties each agree to use their respective best efforts to
take such actions as are reasonably necessary to enable, Phase 1, the
North Section to be completed within two hundred forty-five days (245)
days (plus any extensions as described below) from the date this
agreement is executed, and .Phase 2, the South Section, to be completed
within one (1) year (plus any extensions as described below) from the date
the City issues the Street Opening permit, all as described in Exhibit F, the
"FIBER PLAN, Construction and Support", document attached hereto
made a part hereof. The foregoing completion dates shall be extended to
add the number of days between the submission of the general
contractor's completed permit application and the City's issuance of a
construction permit, to add a negotiated number of days due to any Stop
Work Orders issued by the City, or to add a negotiated number of days
due to changes in the Logical Fiber Plan requested by the City. The City
acknowledges that Northwestern's ability to complete the project in
accordance with the above -referenced time frame depends in part upon
the City performing its responsibilities outlined in the Fiber Plan,
Construction and Support document attached as Exhibit F in accordance
with the project timetable. Northwestern agrees to absorb unanticipated
cost overruns in laying the City's fiber optic cable for the Logical Fiber
Plan in accordance with the Fiber Plan, Implementation and Post -
Implementation document; provided, however, Northwestern shall not be
responsible for paying for overruns caused by the City, as described
below. Furthermore, the City shall be responsible for and shall reimburse
Northwestern for any additional reasonable charges billed to Northwestern
by contractors to the extent resulting from (i) changes requested by the
City in the Logical Fiber Plan, including without limitation, the addition of
cable, conduits, routes, City Building connections or route changes
(excluding route changes due to physical obstructions), or (ii) delays
caused by the City. In the case of changes requested by the City,
Northwestern agrees to obtain competitive quotes for the work, and obtain
the City's written approval before proceeding, such approval not to be
unreasonably withheld, delayed or conditioned. For all contractor charges
to be reimbursed by the City, Northwestern shall require the contractor to
submit itemized statements.
B. During the term of this Agreement Northwestern will construct, operate,
and maintain its fiber optic cable system and construct the City's fiber
optic cable system according to the terms of this Agreement, including the
specifications set forth in said Exhibit F. The foregoing represents
Northwestern's sole obligations with respect to the City's fiber optic cable
system. NORTHWESTERN HEREBY DISCLAIMS ANY AND ALL
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT
LIMITATIONS, WARRANTIES OF FITNESS FOR A PARTICULAR
PURPOSE, OR MERCHANTABILITY. Northwestern does not warrant
that the system will meet the City's communications requirements.
Furthermore, the City acknowledges and agrees that Northwestern may
rely upon the written technical information provided by the City to
Northwestern, the City's approval of the network design, the City's
approval of the Scope of Work in the contractor bid documents, the City's
acceptance of the system as it relates to the City's Fiber, and the GIS
maps provided by the City. Notwithstanding the foregoing disclaimers by
Northwestern, Northwestern does agree to include in the contract with the
general contractor engaged to install the City's Fiber a requirement that
such contractor warrant that the City's Fiber so installed will conform to the
requirements in the Scope of Work for the City's Fiber, including the
specifications set forth in Exhibit F, and that such warranty is intended to
and will benefit both Northwestern and the City. The general contractor
shall be required to include similar provisions in its agreements with
subcontractors who will perform work on the City's Fiber.
C. If Northwestern fails to present the City with a fully operational system that
meets all requirements and time schedules provided by this agreement
within two (2) years after the execution of this Agreement (plus any
extensions granted pursuant to Section 3.A above) Northwestern agrees
to pay the City $ 7.28 per linear foot, per year, at the times specified in
Section 5 for each year this Agreement is in effect, calculated by
multiplying $7.28 times the linear length of Northwestern Easement
property as depicted in the Total Fiber Plan attached as
Exhibit_G_hereto; such property is approximately 18,715 linear feet in
length.. The cost per linear foot will be adjusted annually based on the
United States Labor Department Bureau of Labor Statistics Consumer
Price Index -All Urban Consumers- Chicago Metropolitan Area (the "CPI").
In calculating the easement payments due for the first two years of this
Agreement, the City will credit Northwestern for easement payments made
within the first two years not to exceed a total of $94,000 when assessing
additional amounts to be paid in accordance with the foregoing formula.
In the event that Northwestern installs a portion of the City's Fiber in the
Total Fiber Plan but fails to complete all of the connections for each of the
15 City Buildings identified in the Total Fiber Plan within the end of the
foregoing two-year time period (together with any granted extensions) due
to reasons within Northwestern's reasonable control, then Northwestern
shall be responsible for reimbursing the City for the reasonable costs to
retain another party to complete such City Fiber installation up to the $2
million cap described hereafter. In no event shall Northwestern's total
liability with respect to installation of the Total Fiber Plan in accordance
with the specifications in Exhibit F and the Scope of Work hereunder
exceed in the aggregate $2 million. The amounts expended by
Northwestern in installing a portion of the City Fiber, as documented by
receipts and invoices, shall be subtracted from $2 million to determine the
maximum reimbursement by Northwestern for reasonable costs the City
incurs to retain a contractor to complete the portions of City Fiber depicted
in the Logical Fiber Plan in accordance with the specifications in Exhibit F
hereto and the Scope of Work hereunder. If requested by the City,
Northwestern shall provide the City with copies of the above -mentioned
receipts and invoices. The City agrees to obtain quotes for such work in
accordance with the requirements of the Evanston City Code and
applicable State of Illinois statutes. For all such contractor charges to be
reimbursed by Northwestern, the City shall require the contractor to submit
itemized statements and Northwestern reserves the right to object in good
faith to City reimbursement for any unreasonable charges. In the case
that Northwestern completes installation of a portion of the City Fiber in
the Logical Fiber Plan, but not all, the annual payments for the
Northwestern Easements shall remain at $47,000 for each year that this
Agreement remains in effect. The provisions in this Section 3.0 represent
the City's sole remedies and Northwestern's sole liabilities for failing to
complete the entire Total Fiber Plan as described in this Agreement within
the required time period.
D. Northwestern will contractually require all contractors and subcontractors
hired to perform any work in constructing or maintaining the City's fiber
optic cable system or Northwestern's fiber optic cable system to provide
the City and Northwestern with the indemnity set forth in Section 12 of this
Agreement, to name the City and Northwestern as additional insureds and
to comply in all respects with the insurance requirements in Exhibit H
attached hereto and made a part hereof (the "Insurance Requirements").
The City will provide Northwestern with the indemnity set forth in Section
12 of this Agreement and will name Northwestern as an additional insured
and comply in all respects with the Insurance Requirements for the term of
this Agreement. Northwestern shall name the City as an additional
insured for purposes of covering the City for any work performed by
Northwestern in maintaining the City's Fiber during the term of this
Agreement.
4. Northwestern Easement Property: The City will provide Northwestern with a
geographic information system ("GIS") route map of the external path of the
Northwestern Easements. Within one hundred twenty days (120) after City's
written acceptance of the system as described below in Section 7 below,
Northwestern, at its sole cost, will provide the City with the legal description of
the location of Northwestern's installed fiber optic system. This legal description
shall become a part of and be attached hereto as an addendum to Exhibits A and
C.
Wdem
5. City Fiber Costs and Annual Easement Fee: In addition to incurring the cost
of laying the fiber optic cable in the configuration depicted in the Logical Fiber
Plan and as specified in Exhibit E attached hereto, Northwestern shall pay the
City an annual fee for the Northwestern Easements at the rate of $47,000 US
(Forty-seven thousand and No/100 Dollars (US)) per year. The first annual
easement payment shall be made within 30 business days of the Effective Date
of this Agreement; subsequent payments shall be made on each anniversary of
the Effective Date for the period this Easement Agreement remains in effect.
This annual easement fee shall include the right of Northwestern to add
additional pathway, fiber or copper cable within any Northwestern Easement
during the term of this Agreement. This annual easement fee shall include also
the right of Northwestern to lay up to 2,500 feet of additional cable at an as yet
undefined area(s) to be used when and if Northwestern has such a need to
expand its system. This additional allowance of 2,500 feet is derived from an
Existing Northwestern Easement granted under the Second Amendment dated
July 8, 1994 to the 1984-2013 Easement running west on Lincoln, north on
Sherman, west on Central, crossing Ridge to Evanston Hospital, Northwestern
intends to use these additional feet of cable to redesign the aforementioned
easement into a more optimal configuration. Northwestern will identify the
area(s) where such additional cable is proposed to be laid and obtain the City's
prior approval for this additional easement property. Northwestern shall obtain all
necessary permits for this reconfiguration,. The permit fees for this
reconfiguration are included in the Permit Fees described above in Section 2.C.
If the location of this replacement easement is approved by the City Council, the
City agrees to prepare the necessary Easement documents. If during the term of
this Agreement Northwestern wishes to add its own fiber optic cable into conduits
located on the City's property that contain only the City's fiber, Northwestern may
request a license from the City to add such cable, and the price for such license
shall be the price applicable to an additional easement as described in Section 6
below , including any credits in the event that Northwestern takes on the
responsibility of maintaining and repairing the City's Fiber in such City conduits,
per the negotiation procedures set forth in the last sentence of Section 6 below.
6. Changes to the Configuration of the Total Fiber Plan: During the term of this
Agreement Northwestern may request new easements from the City. The parties
agree to negotiate the terms of any such new easement, provided, however, the
price per linear foot, per year, of any new easements granted within a period of
five years from the Effective Date of this Agreement shall not exceed $7.28
adjusted in accordance with the CPI as described in Section 3.0 above. For
easements granted after said five-year period, the easement fee shall be $7.28
per linear foot adjusted in accordance with CPI. During the term of this
Agreement the City may wish to add additional City buildings connected to the
Total Fiber Plan with City Fiber that could be installed in conduits located on
Northwestern Property or in Northwestern Easements. The City and
Northwestern will work together to create a design for and obtain quotes to install
such additional City Fiber. Northwestern agrees to obtain the City's written
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approval before proceeding, such approval not to be unreasonably withheld,
delayed or conditioned. For all such contractor charges to be reimbursed by the
City, Northwestern shall require the contractor to submit itemized statements.
The parties will negotiate terms for Northwestern to undertake responsibility for
maintaining any additional City Fiber based on fair market value for such
services.
7. System Acceptance: The contractor retained by Northwestern will install,
terminate and test the City's fiber optic cable system and perform the tests
outlined in the Acceptance Plan attached as Exhibit I hereto and made a part
hereof (the "Acceptance Plan"). Once the system has been installed the City will
prepare the GIS documentation described in Section 3 of Exhibit 1. The
contractor will deliver to Northwestern the test results on compact discs (CD).
When Northwestern has received both the CD with satisfactory test results and
the GIS documentation, Northwestern will deliver to the City copies of test CD,
together with a written acceptance document for the City's signature. The City
shall have 30 days from the date of its receipt of the acceptance document to
sign and return the acceptance document to Northwestern (the "Acceptance
Period"). Within such Acceptance Period the City shall notify Northwestern in
writing of any test results not within the acceptable tolerances set forth in Section
1 of Exhibit I or of nonconformities in the system to the specifications set forth in
Exhibit F.
8. System Ownership: The City will own all fiber optic cable designated as "City
Fiber" in the conduits located on Northwestern property or in the Northwestern
Easements. The City will also own all fiber optic cable and the conduits located
on the City's property, excluding the conduits located on Northwestern
Easements, which conduits are owned by Northwestern. The City's fiber is
identified as "City Fiber" on the Total Fiber Plan attached as Exhibit G hereto.
Northwestern will own all fiber optic cable in the conduits located on
Northwestern property or in the Northwestern Easements other than City Fiber.
Northwestern's fiber in the Northwestern Easements is identified as
"Northwestern Easement Fiber' in the Total Fiber Plan attached as Exhibit G
hereto. The City has the right to inspect City Fiber located on Northwestern's
property or in the Northwestern Easements quarterly, following a minimum of 48
hours advance written notice, and immediately in the event of a breach of
security demonstrated to be affecting the City's Fiber. The City shall notify
Northwestern immediately of any such suspected security breach, and provide
Northwestern with information supporting the City's belief that access to the
City's Fiber on Northwestern's property or in Northwestern's Easement is
necessary to cure the breach. In such event Northwestern will accompany the
City's inspectors in inspecting the affected City Fiber. Northwestern agrees to
notify the City's Information Systems Director, Network Administrator and
Emergency Communications Coordinator (911), immediately after Northwestern
becomes aware of a breach of security that affects the City Fiber.
SiF.�
9. System Maintenance and Repair:
A. Northwestern shall be responsible for providing 24/7 telephone support
365 days per year for the maintenance of City Fiber in conduits located on
Northwestern property or in the Northwestern Easements. Northwestern
will dispatch technicians for restoration within 8 hours of a City reported
incident on Northwestern Easement or Northwestern Property. The City
shall be solely responsible for maintaining and repairing any City Fiber
that is located on the City's property (excluding Northwestern Easements).
Northwestern or its agents has the sole right to enter the conduits on
Northwestern property or the Northwestern Easements for purposes of
repairing any damage to either Northwestern Fiber or City Fiber contained
therein. Northwestern shall be responsible for paying the cost of all
repairs made to either Northwestern Fiber or City Fiber contained in
conduits on Northwestern property or Northwestern Easements, unless
such damage has been caused by the City, its employees or agents, in
which case the City shall reimburse Northwestern promptly for the
reasonable costs it incurs in making such repairs, including the cost of any
necessary permits needed to make the repairs.
B. Northwestern agrees to apply and pay for, and the City agrees to issue, an
annual maintenance permit that will cover the repair and maintenance
services that Northwestern performs under this Agreement with respect to
the Total Fiber Plan for each year that this Agreement is in effect
(excluding Years 1 and 2 which are covered by the permits described in
Section 2.C). Each such maintenance permit for the upcoming year shall
be applied and paid for prior to anniversary date of the Effective Date
while this Agreement is in effect. The City agrees to issue permits
required for any such maintenance repair services within a reasonable
time frame. The City agrees to use reasonable efforts to issue such
permits within 10 business days from the date the permit application is
complete, but in no event later than 20 business days. Northwestern
agrees to require any contractors retained to perform such repair services
to submit itemized statements for their charges, which statements
Northwestern will submit to the City for reimbursement.
C. Northwestern agrees not to intentionally hinder or interrupt City fiber optic
cable service. If in making any necessary maintenance or repair
Northwestern believes that a service interruption may be caused,
Northwestern shall provide the City's Information Systems Director,
Network Administrator and Emergency Communications Coordinator
(911), with no less than three days' advance notice for any outage due to
scheduled maintenance, and immediate notice following any unplanned
outage.
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D. In the event that Northwestern deems it necessary to relocate any
Northwestern conduits that contain both Northwestern Fiber and City Fiber
to upgrade or maintain the Total Fiber Plan, Northwestern shall provide
the City with 30 days advance written notice of any planned relocation.
Northwestern shall be responsible for the costs incurred in connection with
any such relocation.
10. Purchase of Abandoned Easements: Northwestern may abandon a
Northwestern Easement, or portion thereof; provided, however, the City shall
have a right of first purchase to acquire the conduit, hand -holes and vaults within
such Easement or portion thereof for the cost to be negotiated and agreed
between the parties in accordance with Section 13 below. Similarly, the City may
abandon fiber optic cable in a conduit located on Northwestern Property or a
Northwestern Easement; provided, however, Northwestern shall have a right of
first purchase to acquire such cable for the cost to be negotiated and agreed to
between the parties in accordance with Section 13 below
11. Agreement Assignability:
A. The parties agree that the Easements granted hereunder shall inure to the
benefit of Northwestern and its successors and agents, to Northwestern
affiliates, to any third party tenants of properties owned by Northwestern
or properties leased by Northwestern, and to occupants of the Research
Park Buildings.
B. The license granted by Northwestern hereunder to the City to place City
Fiber in conduits located on Northwestern property or in Northwestern
Easements, and the responsibility of Northwestern to lay and maintain
cable for the City as described herein, in each case runs only to the City
and is non -assignable by the City to others.
C. Northwestern agrees to provide the City with a list of names and
addresses for each third party tenant in a Northwestern Property that
receives telecommunications services from Northwestern resulting from
use of the Northwestern Easements. Northwestern shall provide the first
list to the City within thirty (30) days of the Effective Date of this
Agreement, and updated lists prior to the anniversary date of the Effective
Date for each year that this Agreement is in effect. Such lists of third party
tenants shall become parts of Exhibit M attached hereto and incorporated
herein.
D. The City shall notify Northwestern of any telecommunications taxes or
surcharges that are assessable with respect to the third party tenant's use
of services made available through the use of the Northwestern
Easements, and Northwestern shall bill such tenants for these amounts
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and remit the amounts collected to the City once annually within thirty
days of each anniversary date of the Effective Date.
12. Indemnification:
A. Northwestern, its successors, and agents shall indemnify and save
harmless City, its officers, employees, and agents against any and all loss,
damage, and cost to the extent caused by the negligent or wrongful acts
of Northwestern, its officers, agents, representatives or employees.
B. The City shall indemnify and save harmless Northwestern, its trustees,
officers, employees and agents against any and all loss damage and cost
to the extent caused by the negligent or wrongful acts of the City, its
officers, agents, representatives or employees.
C. As for loss or damage caused by City residents or invitees or their agents
to the Northwestern Easements affecting City Fiber and/or Northwestern
Fiber for which Northwestern has assumed responsibility hereunder to
repair, the City agrees to assign, subrogate or otherwise make available to
Northwestern the insurance or other forms of coverage that the City has
against such loss. Northwestern may apply the amounts recovered under
such coverage to offset the costs Northwestern i ncurs in repairing such
damage and in obtaining the benefits of such coverage (including
reasonable attorneys' fees and court costs).
D. In no event shall either the City or Northwestern be liable for any indirect,
consequential, incidental, or punitive damages, even if they have been
advised of their possibility.
13. Term:
A. The term of this Agreement shall be twenty (20) years from the Effective
Date.
B. Within six months prior to this Agreement's stated expiration date the
parties shall indicate to one another in writing their interest in renewing
this Agreement for an additional mutually agreed to number of years or in
negotiating a new agreement to become effective upon expiration of this
Agreement. In the event that the parties enter into negotiations for a new
agreement but do not complete such negotiations and sign a new written
agreement prior to the expiration of this Agreement, the parties may
mutually agree in writing to extend this Agreement for six (6) months.
After expiration of such six months, they may mutually agree in writing to a
second six-month extension, and thereafter a third six-month extension.
For any such six-month extension(s) agreed to by the parties, the
Agreement shall be extended and continue in effect and the annual
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payments, pro -rated for a six-month period, and due hereunder shall
continue to be due and owing. The annual payment shall be, $ 7.28 per
linear foot, per year, each year calculated for the linear length of the
Northwestern Easement property then in use. The cost per linear foot will
be adjusted annually based on the CPI as described above in Section 5,
C. If the parties decide not to renew this Agreement or replace it with another
agreement at the expiration of this Agreement or any extensions the
Northwestern Easements and the License will expire, however,
Northwestern shall not be required to remove its facilities and installations
in the Northwestern Easements. Such easements may be abandoned or
sold to the City at a negotiated price and Northwestern shall have no
continuing financial obligations to the City with respect to the Northwestern
Easements. Similarly, the City shall not be required to remove City Fiber
on Northwestern property or in Northwestern Easements; such Fiber may
be abandoned or sold to Northwestern at a negotiated price and the City
shall have no continuing financial obligations to Northwestern with respect
to the License.
14. Miscellaneous:
A. The making, execution and delivery of this Easement by the City have
been induced by no representations, statements, warranties, or
agreements other than those herein expressed.
B. This Agreement embodies the entire understanding of the parties and
there are no further or other agreements or understandings, written or
oral, in effect between the parties, their officers, agents, representatives
and employees, relating to the subject matter hereof.
C. The parties intend for this Agreement to replace and supercede the 1984-
2013 Easement effective as of the Effective Date of this Agreement with
respect to the Existing Northwestern Easements described therein.
D. This Agreement may be amended or modified only by an instrument of
equal formality, signed by the duly authorized officers of the respective
parties.
E. The laws of the State of Illinois shall govern this Agreement.
15. Delivery of Notices: Any notices required or permitted hereunder shall be in
writing and shall be delivered via certified mail, first class postage prepaid, or by
receipted personal delivery, and addressed to the parties as follows, unless
otherwise indicated in the future:
If to City:
With a copy to
City Manager
Evanston Civic Center
2100 Ridge Avenue
Evanston, Illinois 60201
Law Department
Evanston Civic Center
2100 Ridge Avenue
Evanston, Illinois 60201
If to Northwestern: Northwestern University
Associate Vice President,
Information Technology
1603 Orrington Avenue
Evanston, Illinois 60201
With a copy to: Northwestern University
Office of General Counsel
633 Clark Street
Evanston, Illinois 60208-1109
Notice shall be deemed given on date of mailing.
IN WITNESS WHEREOF, the parties have executed this Agreement at
Evanston, Illinois, on the date under their respective officer's signature below, intending
for this Agreement to become effective as of the Effective Date.
Accepted by:
NORTH ESTERN UNIVERSITY CITY OF EVANSTON, COOK COUNTY
ILLINO
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-17-
SCHEDULE OF EXHIBITS
Exhibit A: Legal Description of Existing Northwestern University Easements
Exhibit B: Map of Existing Northwestern University Easements
Exhibit C: Legal Description of New Northwestern Easements
Exhibit D: Map of New Northwestern Easements
Exhibit E: Logical Fiber Plan of City Buildings
Exhibit F: Fiber Plan, Implementation and Post -Implementation
Exhibit G: Map of Total Fiber Plan
Exhibit H: Insurance Requirements
Exhibit I: Acceptance Plan
Exhibit J: City Manager Authorization Ordinance 78-0-03
Exhibit K: The Research Park Buildings
Exhibit L: NUT Minority Participation Program Policy
Exhibit M: Third Party Tenants in Northwestern Properties Receiving Telecom Services
Resulting from the Northwestern Easements
M