19980922 1998-30ORDINANCE NO. 1998- 30
AN ORDINANCE GRANTING A LICENSE
TO WORLDCOM ICC, 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 TELECOMMUNI~TION SERVICES
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
FAIRFAX, VIRGINIA (hereinafter referred to as "City") and
WorldCom ICC, 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, WorldCom is a certificated provider of
telecommunications service in the Commonwealth of Virginia;
and
WHEREAS, WorldCom desires to use the City's Public Ways to
construct, operate, maintain, repair, and upgrade its
Telecommunications Facilities; and
WHEREAS, WorldCom, 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 construct and install its
telecommunications facilities within the City's Public
Ways; and
WHEREAS, The City agrees to permit WorldCom 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 WorldCom and
other good and valuable consideration, the receipt and
1998-30
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, 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 WorldCom.
(g) "Term" shall mean the period commencing on
the date of execution of this Agreement and ending on the
fifth (5th) anniversary thereof, unless terminated at an
earlier date in accordance with the terms and conditions of
Section 13 of this Agreement.
2
1998-30
3. Grant.
Subject to the terms and conditions of this Agreement,
the City hereby grants to WorldCom, its agents and
contractors, nonexclusive permission to construct and
install telecon%munications 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. WorldCom 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
conunencement of any work. WorldCom 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 WorldCom in
writing of its approval, or disapproval, of the proposed
construction within a reasonable time after delivery by
WorldCom to the City of plans and specifications in a form
pre-approved by the City. Further, WorldCom 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, WorldCom agrees to obtain any
and all permits and required permissions from the City
prior to contmencing 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
WorldCom, its contractors, employees or representatives, at
all times while work is being undertaken.
4. Agreement to Protect Existing Facilities.
WorldCom 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 WorldCom 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. WorldCom 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 WorldCom 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
1998-30
alternative sources in the event of any interruption in
water service. WorldCom 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
WorldCom and the City prior to the commencement of any
construction. WorldCom 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
WorldCom'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, and existing
conduit shall be used wherever available. No attachments
shall be made to existing utility poles without the
permission of the owner of said pole. All 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 WorldCom 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 private property, and a copy of such
written permission shall be promptly provided to the City.
WorldCom 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.
WorldCom agrees to continuously provide the City with
an accurate and complete list of emergency telephone
numbers of representatives of WorldCom 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 WorldCom shall immediately notify the City of any
changes to the list.
5. Indemnification.
WorldCom 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 WorldCom, 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
4
1998-30
WorldCom, 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 WorldCom, the City shall promptly give
written notice thereof to WorldCom 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. WorldCom shall pay all judgments,
costs, expenses and reasonable attorneys' fees incurred by
the City and the parties herein indemnified from such legal
proceedings.
6. Insurance.
WorldCom 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 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.
WorldCom 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. WorldCom 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 WorldCom 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
1998-30
for insurance required under this section, including
insurance required of its employees, agents and
contractors. WorldCom agrees, for itself, its employees,
agents and contractors, to keep all such insurance coverage
Ln 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
~nsurance policy, WorldCom 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, WorldCom agrees to pay all
such claims, including all deductibles, and any fees
associated with the claim, including reasonable attorneys
fees.
7. Bond.
WorldCom, 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 WorldCom or its insurers under
this Agreement. If the funds represented by the Bond
become exhausted, WorldCom 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 WorldCom, 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
WorldCom within thirty (30) days after three (3) months
from the date of the City's notice of completion.
1998-30
9. Scheduled Maintenance or R~oval.
Prior to the commencement of any scheduled maintenance
or removal of its Telecommunications Facilities that
requires entry onto the City's Public Ways, WorldCom shall
submit a proposed maintenance or removal plan and schedule
to the City for approval, such approval not to be
unreasonably withheld or delayed.
10. Notice to City Prior to Entering City's Public
Ways
WorldCom 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 WorldCom cannot provide
the required advance notification, in which event WorldCom
shall notify the City as soon as is practicable.
ll. Relocation
The City may request relocation of any of the
Telecommunications Facilities by delivering written notice
thereof to WorldCom, which notice shall delineate with
specificity the alternative Public Ways to which WorldCom
may relocate such Facilities. WorldCom 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., WorldCom 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 WorldCom, 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 WorldCom 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.
1998-30
14. End of Term.
As soon as practicable after the end of the Term,
WorldCom shall, at WorldCom'$ cost and expense, remove from
the Public Ways all of its Telecommunications Facilities.
WorldCom 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 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, WorldCom 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. WorldCom agrees to pay the Public Rights-of-
Way Use Fee, as modified from time to time by the Virginia
Department of Transportation. WorldCom 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, WorldCom 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 WorldCom that the fees and charges
payable by WorldCom are applied on a nondiscriminatory
basis to all telecommunications service providers using the
Public Ways.
17. Assignment.
WorldCom 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
WorldCom 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 WorldCom, any
purchaser of all or substantially all of the assets of
WorldCom, or any company or entity with which or into which
WorldCom may merge or consolidate.
1998-30
18. Governing Law.
This Agreement shall be subject to, and construed in
accordance with the laws of the Commonwealth of Virginia
and the ordinances, policies and regulations of the City.
19. Binding Effect.
The terms and provisions of this Agreement shall inure
to and be binding upon the assigns and successors in
interest of WorldCom 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 WorldCom 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 WorldCom 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 the 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 WorldCom
shall be given in writing to:
WorldCom, Inc.
One Tower Lane, Suite 1600
Oakbrook Terrace, Illinois 60181
Attn: Counsel for Development
With A Copy To:
WorldCom Network Services, Inc.
Purchasing & Contracts
6929 N. Lakewood Avenue
Tulsa, OK 74117
Attn: Contract Administrator
1998-30
All 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.
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: September 8, 1998
PUBLIC HEARING: September 22, 1998
ADOPTED: September 22, 1998
Vote:
Councilman Coughlan
Councilman Greenfield
Councilman Lederer
Councilman Peterson
Councilman Rasmussen
Councilman Silverthorne
aye
abstain
aye
aye
aye
aye
ATTEST:
(J ~ity Clerk