19981124 1998-36ORDINANCE NO. 1998- 36
AN ORDINANCE GRANTING A
LICENSE TO TCG VIRGINIA,
INC. AND ITS SUCCESSORS TO
USE FOR THE TERM AND UPON
THE CONDITIONS STATED
HEREIN THE PUBLIC RIGHT-OF-
WAY IN THE CITY OF FAIRFAX,
VIRGINIA FOR ITS WIRES,
CONDUITS, CABLES AND
FIXTURES FOR THE PROVISION
OF TELECOMMUNICATION
SERVICES
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
FAIRFAX, VIRGINIA (hereinafter referred to as "City")
and TCG VIRGINIA, INC., (hereinafter referred to as
the "Grantee") and its successors, for a period of
five (5) years, subject to the conditions and
restrictions herein stated, be and is hereby
authorized and empowered on a non-exclusive basis to
construct, maintain, operate, remove, relocate or
replace its conduits, ducts, cables, wires and all
other necessary underground apparatus (hereinafter
collectively called "Equipment") under and through the
public right-of-way within the corporate limits of the
City of Fairfax, Virginia, as the same now exist or
may hereafter be extended or altered, for the purpose
of placing conduits, ducts, cables, wires and all
other necessary underground apparatus for the
provision of providing telecommunication services.
The conditions of the License are as follows:
RECITALS
WHEREAS, TCG Virginia, Inc. is a wholly owned
subsidiary of Teleport Communications Group, Inc.,
which is a wholly owned subsidiary of AT&T Corp.; and
WHEREAS, TCG Virginia, Inc. is a certificated provider
of telecommunications service in the Commonwealth of
Virginia; and
WHEREAS, TCG Virginia, Inc. desires to use the City's
Public Ways to construct, operate, maintain, repair,
and upgrade its Telecommunications Facilities; and
WHEREAS, TCG Virginia, Inc., in addition to the
consideration hereinafter provided, agrees to give
certain assurances and guarantees to the City in
exchange for receiving permission from the City to
1998-36
construct and install its telecommunications
facilities within the City's Public Ways; and
WHEREAS, The City agrees to permit TCG Virginia, Inc.
to use the City's Public Ways pursuant to the terms
and conditions of this Agreement.
NOW, THEREFORE, in consideration of the covenants,
assurances, indemnities and guarantees of TCG
Virginia, Inc. and other good and valuable
consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as
follows:
1. Recitals. The recitals hereto are
incorporated herein by this reference.
2. Definitions. The following terms are
defined:
(a) "Access Lines" shall mean residence and
business telephone lines and other switched common
lines connecting the customer premises to the end
office switch. Access lines do not include local,
state and federal government lines; access lines used
to provide service to users as part of the Virginia
Universal Service Plan; interstate and intrastate
dedicated WATS lines; special access lines; off-
premises extensions; official lines used by providers
of telecommunications service for administrative,
testing, intercept, and verification purposes; and
commercial mobile radio service lines.
(b) "Certificated provider of
telecommunications service" shall mean a public
service corporation holding a certificate issued by
the State Corporation Commission to provide local
exchange or interexchange telephone service.
(c) "Existing Facilities" shall mean
existing water, gas and sewer pipes and all other
utilities and conduits in the City's Public Ways
including, but not limited to, electric lines and
traffic signal cables, as well as any pavements,
curbing and landscaping owned by the City and any
other franchisees or users of the City's Public Ways.
(d) ~Public Rights-of-Way Use Fee" shall
mean a fee charged and billed monthly to the ultimate
end user of each access line of a certificated
provider of local exchange telephone service, the rate
of which fee shall be established annually by the
Virginia Department of Transportation in the manner
specified in Va. Code Ann. ~ 56-468.1.
(e) "Public Ways" shall mean the surface,
the air space above the surface, and the area below
the surface of any public street, road, highway, lane,
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1998-36
path, alley, sidewalk, boulevard, drive, bridge,
easement, other public right-of-way, or other public
property in the City.
(f) "Telecommunications Facilities" shall
mean any and all telecommunications cables, lines,
conduits, access manholes, pedestals, boxes, and other
similar equipment and devices owned or used by
Grantee.
(g) ~Term" shall mean the period commencing
on the date of execution of this Agreement and ending
on the fifth (Sth) anniversary thereof, unless
terminated at an earlier date in accordance with the
terms and conditions of Section 13 of this Agreement.
3. Grant.
Subject to the terms and conditions of this
Agreement, the City hereby grants to Grantee, its
agents and contractors, nonexclusive permission to
construct and install telecommunications facilities
over and/or under any and all Public Ways during the
Term in accordance with plans pre-approved by the City
and in a form acceptable to the City, and to operate,
maintain, repair, reconstruct, replace, relocate and
remove the same in accordance with this Agreement.
Grantee agrees to consult with the City, prior to the
submission of the first set of any plans for work to
be conducted under this Agreement, and obtain the
City's approval for plan format and site plans prior
to the commencement of any work. Grantee may effect
construction of the facilities on the Public Ways only
after approval has been given by the City, which
approval shall not be unreasonably withheld. The City
shall notify Grantee in writing of its approval, or
disapproval, of the proposed construction within a
reasonable time after delivery by Grantee to the City
of plans and specifications in a form pre-approved by
the City. Further, Grantee may perform maintenance on
the facilities from time to time without prior
approval by the City. However, in the event such
maintenance will disturb or block vehicular or
pedestrian traffic in the Public Ways, Grantee agrees
to obtain any and all permits and required permissions
from the City prior to commencing with such
maintenance, unless the requirement for maintenance is
due to an emergency situation threatening the health,
safety and welfare of the residents of the City. A
potential business loss shall not be considered an
emergency situation under this Agreement.
A copy of this Agreement, together with any
written modifications thereto, shall be maintained on
site by Grantee, its contractors, employees or
representatives, at all times while work is being
undertaken.
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1998-36
4. Agreement to Protect Ex~ sting Facilitien.
Grantee for itself, its employees, officers,
agents and contractors, agrees to take all prudent
action to protect all Existing Facilities located
within the City's Public Ways from any damage or
injury caused by any work performed by or on behalf of
Grantee regarding the construction, installation,
operation, inspection, maintenance, repair,
reconstruction, replacement, relocation, or removal of
its Telecommunications Facilities or the failure,
deterioration or collapse of such Telecommunications
Facilities. Grantee shall immediately notify the City
Manager and the appropriate public safety agency (e.g.
fire department) of any damage or injury to any
Existing Facility caused by work authorized pursuant
to this Agreement, and, without in any way limiting
the obligations of Grantee under this Agreement, shall
pay to the City upon demand all costs incurred by the
City for the repair of such damage or injury
including, but not limited to, all costs incurred by
the City in purchasing water from alternative sources
in the event of any interruption in water service.
Grantee shall provide for a local, Virginia-licensed
contractor to be on-call to respond within 30 minutes
to any incident where City water or sanitary sewer
lines or services are damaged or injured. Such
contractor shall be a reputable water and sanitary
sewer contractor and shall be mutually agreed to by
Grantee and the City prior to the commencement of any
construction. Grantee shall provide test pits at all
utility crossings and keep such test pits open until
that section of the boring operation is complete. The
minimum separation of City water and sanitary sewer
facilities and Grantee's equipment shall be one (1)
foot vertical and five (5) feet horizontal. Further,
no new utility poles shall be added within City rights
of way to accommodate Grantee's Telecommunications
Equipment. Existing conduit shall be used wherever
available. Grantee agrees that its Telecommunications
Equipment shall be above ground only in areas where
there are existing utility poles and where the owner
of the pole has granted permission to Grantee to
attach to the pole. In areas where permission by the
pole owner is not granted, or where there are no
existing utility poles or conduit, Grantee agrees to
place its Telecommunications Equipment underground, in
a manner to be approved by the City. Ail cable
location identifying markers are to be ground mounted.
Ail disturbed areas are to be cleaned,
stabilized, covered and seeded, as necessary, at the
end of each work day, and no construction equipment or
any other vehicles owned by Grantee or its employees
or contractors, shall be parked on city rights of way
after working hours. Written permission shall be
obtained for parking or any other encroachment on
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1998-36
private property, and a copy of such written
permission shall be promptly provided to the City.
Grantee agrees that if it finds any naturally
occurring asbestos while conducting work under this
Agreement, it shall immediately inform the City and
the Fairfax County Air Pollution and Control Division.
Grantee agrees to continuously provide the City
with an accurate and complete list of emergency
telephone numbers of representatives of Grantee and
any contractors, subcontractors, consultants,
employees, or others responsible for the installation,
operation and maintenance of the Telecommunications
Equipment. Such list shall provide for 24 hours a
day, 7 days a week contact, and Grantee shall
immediately notify the City of any changes to the
list.
5. Indemnification.
Grantee hereby agrees to indemnify and hold
harmless the City, its elected officials, officers,
employees and agents from all demands, claims,
actions, judgments, damages, losses, liabilities,
costs and expenses (including attorneys' fees and
costs) arising out of the acts or omissions of
Grantee, its employees, contractors or agents in
connection with the construction, installation,
operation, inspection, maintenance, repair,
reconstruction, replacement, relocation, or removal of
its Telecommunications Facilities or the failure,
deterioration or collapse of such Telecommunications
Facilities, or the damage to or encroachment upon
private property by Grantee, its employees,
contractors or agents. If the City suffers any
damage, loss or liability, or if any legal proceedings
are instituted (whether frivolous or otherwise)
against the City, its elected officials, officers,
employees and/or agents with respect to such work
performed by or on behalf of Grantee, the City shall
promptly give written notice thereof to Grantee which
shall, at its own expense, pay for or defend (with
counsel reasonably acceptable to the City) all such
actions and pay for all damages, losses, liabilities,
costs and expenses (including reasonable attorneys'
fees and costs) in defense of such legal proceedings.
Grantee shall pay all judgments, costs, expenses and
reasonable attorneys' fees incurred by the City and
the parties herein indemnified from such legal
proceedings.
~'~ Iqs~rance.
Grantee shall at all times during the Term of
this Agreement maintain a commercial general liability
insurance policy, to include bodily injury, personal
injury, and property damage coverage, written on an
1998-36
occurrence basis with a company licensed to transact
business in Virginia and reasonably acceptable to the
City, in an amount of not less than Two Million
Dollars ($2,000,000) to cover construction,
installation, operation, inspection, maintenance,
repair, reconstruction, replacement or removal of its
Telecommunications Facilities and any damage or loss
suffered or incurred by the City, its elected
officials, officers, agents and employees resulting
from such work. Grantee shall require, at all times,
that all contractors performing work under this
Agreement maintain general liability, auto liability,
excess liability, workers compensation and employer's
liability insurance coverage, in the following
amounts: general liability insurance coverage, in the
amount of Two Million Dollars ($2,000,000) per
occurrence; auto liability coverage in the amount of
Two Million Dollars ($2,000,000); workers compensation
and employer's liability insurance coverage in the
statutorily required amounts; and excess liability
insurance coverage in the amount of Two Million
Dollars ($2,000,000), with the City, its elected
officials, officers, employees, agents,
representatives and volunteers named as additional
insureds on such policies. Grantee shall deliver to
the City, for review and approval by the City before
any work is commenced under this Agreement,
certificates of insurance, of a form acceptable to the
City, demonstrating that the insurance coverage
required by this section is in full force and effect.
Such certificate, among other things, shall indicate
that the insurance company shall give thirty (30) days
prior written notice of expiration, cancellation, non-
renewal or material change in coverage to the City.
This obligation shall not relieve Grantee from
its independent obligation to give any notices to the
City required by this Agreement, including the
obligation to keep itself and the City informed of all
expirations, renewals, cancellations and changes in
insurance coverage for insurance required under this
section, including insurance required of its
employees, agents and contractors. Grantee agrees,
for itself, its employees, agents and contractors, to
keep all such insurance coverage in full force and
effect during the period when installation,
maintenance, relocation or removal work is performed
under this Agreement. Thirty (30) days prior to the
expiration, cancellation or renewal of any such
insurance policy, Grantee shall provide the City with
written evidence, in a form acceptable to the City,
that the required insurance coverage is bound, will be
continuing 'throughout the course of any work under
this Agreement, and that any insurance premiums have
been paid. If the City is required to pay any claim
made under the applicable insurance policies, Grantee
agrees to pay all such claims, including all
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1998-36
deductibles, and any fees associated with the claim,
including reasonable attorneys fees.
7. Bond.
Grantee, prior to execution of this Agreement by
the City, shall submit to the City and maintain in
effect a bond in the principal amount of Twenty-Five
Thousand Dollars ($25,000) ("Bond") to ensure faithful
compliance with the conditions of this Agreement.
Such bond shall be in a form acceptable to the City,
meeting the requirements of Article XI, Sections 2-48
through 2-53 of the Code of the City of Fairfax,
Virginia, and shall remain in effect throughout the
term of this Agreement. The purpose of the Bond is to
provide payment to the City for any and all
expenditures incurred by the City under this
Agreement, including but not limited to costs of
repairs to any water line or any other Existing
Facilities and attorneys' fees and costs, reasonably
necessary to enforce the terms of this Agreement. The
Bond shall in no way limit the liability or
obligations of Grantee or its insurers under this
Agreement. If the funds represented by the Bond
become exhausted, Grantee shall immediately provide
the City with a new Bond in the amount of Twenty-Five
Thousand Dollars ($25,000).
8. Release of the Bond.
Upon completion of the construction and
installation of each of its Telecommunications
Facilities and notice thereof to the City from
Grantee, representatives of the City will inspect the
work to ensure satisfactory completion to City
requirements. When the construction and installation
of all of the Telecommunications Facilities is fully
completed and applicable City requirements are
satisfied, the City will promptly issue a notice of
completion and will release the Bond, without
interest, to Grantee within thirty (30) days after
three (3) months from the date of the City's notice of
completion.
9. Scheduled Maintenance or Removal.
Prior to the commencement of any scheduled
maintenance or removal of its Telecommunications
Facilities that requires entry onto the City's Public
Ways, Grantee shall submit a proposed maintenance or
removal plan and schedule to the City for approval,
such approval not to be unreasonably withheld or
delayed.
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1998-36
10. Notice to City Prior to Entering City'E
Public Ways
Grantee shall provide notice to the City at least
forty-eight (48) hours prior to entering the City's
Public Ways to maintain its Telecommunications
Facilities, except in the event of an emergency where
Grantee cannot provide the required advance
notification, in which event Grantee shall notify the
City as soon as is practicable.
11. Relocation
The City may request relocation of any of the
Telecommunications Facilities by delivering written
notice thereof to Grantee, which notice shall
delineate with specificity the alternative Public Ways
to which Grantee may relocate such Facilities.
Grantee shall thereafter relocate such
Telecommunications Facilities to such alternative
Public Ways as soon as practicable, but shall not be
required to do so sooner than one-hundred and twenty
(120) days after delivery of such notice., Grantee
shall have the option to do sooner, in its discretion.
Reimbursement for relocation costs shall be in
accordance with Va. Code Ann. ~ 56-468.2.
13. Termination.
This Agreement may be terminated:
(a) by Grantee, at its election and without
cause, by delivering written notice thereof to the
City at least (60) days prior to the effective date of
such termination; or
(b) by either Grantee or the City if, after
written notice by one party to the other of the
occurrence or existence of a default by the other
party under this Agreement, such defaulting party
fails to cure, or commence good faith efforts to cure,
such default within thirty (30) days after delivery of
such notice.
Notwithstanding the provisions of this Section
13, the terms and conditions of this Agreement
pertaining to indemnification shall survive a
termination under this Section.
14. End of Term.
As soon as practicable after the end of the Term,
Grantee shall, at Grantee's cost and expense, remove
from the Public Ways all of its Telecommunications
Facilities. Grantee shall repair any damage to the
Public Ways caused by the removal of such
Telecommunications Facilities. The terms and
conditions of this Agreement concerning the removal of
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1998-36
Telecommunications Facilities shall be applicable to
any removal of Telecommunications Facilities under
this Section.
15. Compensation.
In consideration for execution and performance of
this Agreement by the City, Grantee agrees to pay the
City a Public Rights-of-Way Use Fee in an amount equal
to Fifty Cents ($0.50) per Access Line per month
("Fee"), which fee shall be effective until changed by
the Virginia Department of Transportation as provided
by statute. The Public Rights-of-Way Use Fee will be
set by the Virginia Department of Transportation
annually pursuant to Va. Code Ann. ~ 56-468.1, but in
no event will the fee be less than Fifty Cents ($0.50)
per Access Line per month, as provided by statute.
Grantee agrees to pay the Public Rights-of-Way Use
Fee, as modified from time to time by the Virginia
Department of Transportation. Grantee further
acknowledges and agrees to pay all applicable zoning,
subdivision, site plan and comprehensive plan fees of
general application in addition to payment of the
Public Rights-of-Way Use Fee. Finally, Grantee agrees
to comply with all other requirements imposed by the
Virginia Department of Transportation and the City in
connection with the administration of the Public
Rights-of-Way Use Fee, including all applicable
reporting requirements and any and all requirements
for permits, including any applicable fees therefor.
16. Non-Discrimination.
City represents to Grantee that the fees and
charges payable by Grantee are applied on a
nondiscriminatory basis to all telecommunications
service providers using the Public Ways.
17. Assigr~nent.
Grantee may not assign or otherwise transfer this
Agreement or the license granted herein without the
prior written consent of the City, which consent shall
not be unreasonably withheld or delayed; provided,
however, that Grantee shall not be required to obtain
the consent of the City to any assignment or transfer
of this Agreement or the license herein granted to any
Affiliate of Grantee, any purchaser of all or
substantially all of the assets of Grantee, or any
company or entity with which or into which Grantee may
merge or consolidate.
18. Gpverning Law.
This A~eement shall be subject to, and construed
in accordance with the laws of the Commonwealth of
Virginia ~ the ordinances, policies and regulations
of the City.
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1998-36
19. Binding Effect.
The terms and provisions of this Agreement shall
inure to and be binding upon the assigns and
successors in interest of Grantee and the City.
20. Severability.
The sections, paragraphs, sentences, clauses and
phrases contained in this Agreement are severable, and
if any phrase, clause, sentence, paragraph or section
of this Agreement shall be declared unconstitutional
or otherwise invalid by a valid judgment or decree of
a court of competent jurisdiction, such
constitutionality or invalidity shall not affect any
of the remaining phrases, clauses, sentences,
paragraphs or sections of this Agreement.
21. Entire Agreement.
This Agreement, including all Exhibits, if any,
constitutes the entire agreement between Grantee and
the City with respect to the subject matter hereof and
supersedes any prior discussions, agreements, or
understandings, whether verbal or written. No
amendment or modification of this Agreement shall be
valid unless made in writing and signed by Grantee and
the City or unless provided for herein.
22. Notices.
Unless otherwise designated in writing, all
notices required or permitted hereunder to be sent to
the City shall be given in writing to:
City Manager
Fairfax City Hall
10455 Armstrong Street
Fairfax, Virginia 22030.
Unless otherwise designated in writing, all
notices required or permitted hereunder to be sent to
Grantee shall be given in writing to:
TCG Virginia, Inc.
1331 F Street N.W.
Suite 200
Washington D.C. 20004
Attn: Tom Fenner, Director of Operations
Ail notices shall be deemed served if hand-delivered
or sent by United States registered or certified
mail, return receipt requested, or by a nationally
recognized overnight delivery service with signed
evidence of receipt. Notices shall be effective upon
receipt.
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1998-36
BE IT FURTHER ORDAINED by the City Council of the
City of Fairfax that the City Manager is authorized
and directed to execute a License containing the terms
and conditions contained herein.
This ordinance shall become effective as provided
by law.
INTRODUCED: November 10, 1998
PUBLIC HEARING: November 24, 1998
ADOPTED: November 24, 1998
Vote:
Councilman Coughlan
Councilman Greenfield
Councilman Lederer
Councilman Peterson
Councilman Rasmussen
Councilman Silverthorne
aye
aye
aye
aye
aye
absent
Mayor
ATTEST:
~ ~ity Clerk
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