19991214 1999-27ORDINANCE NO. 1999- :>7
AN ORDINANCE GRANTING A LICENSE TO MFN OF
VA, LLC AND ITS SUCCESSORS TO USE FOR THE
TERM AND UPON THE CONDITIONS STATED
HEREIN THE RIGHT-OF-WAY OF LEE HIGHWAY (U.S.
ROUTE 29), ARLINGTON BOULEVARD (U.S. ROUTE
50) AND UNIVERSITY DRIVE IN THE CITY OF
FAIRFAX, VIRGINIA, FOR ITS WIRES, CONDUITS,
CABLES AND FIXTURES FOR THE PROVISION OF
TELECOMMUNICATIONS SERVICES.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF FAIRFAX,
VIRGINIA (hereinafter referred to as "City") that MFN of VA, LLC (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 Lee
Highway (U.S. Route 29), Arlington Boulevard (U.S. Route 50) and University Drive
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 service.
The conditions of the License are as follows:
RECITALS
WHEREAS, Grantee is a certificated provider of telecommunications service in the
Commonwealth of Virginia; and
WHEREAS, Grantee desires to use the City's Public Ways to construct, operate, maintain,
repair, and upgrade its Telecommunications Facilities; and
WHEREAS, Grantee 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 Grantee 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 Grantee 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
1999-27 -2
2. All Equipment erected by the Grantee shall be neat and symmetrical, and shall
be so located as in no way to interfere with the safety or convenience of persons traveling on
or over the said streets, alleys, highways and other public places. Installation of Equipment
shall be in accordance with the plans entitled "Fairfax City Limits Proposed MMFN Build",
as prepared by OSP Consultants and dated October 27, 1999, and any revisions thereto. Such
revisions, as made by Grantee or requested by the City, shall be approved by the City before
installation is begun. Copies of such revisions shall be provided to the City and be in
accordance with the conditions and restrictions in this License. In the installation and
maintenance of its Equipment, the Grantee shall not open or encumber more of any street,
alley, highway or other public place than will be necessary to enable it to perform the work
with proper economy and efficiency.
3. The installation of Equipment under the provisions of this License shall be
subject to the supervision of the City Manager or his designee and the Grantee shall
replace and properly reconstruct any sidewalk and street pavement and repair any
other property owned by the City, including trees and landscaping, which may have
been or may be displaced or damaged by the Grantee in the construction and
maintenance of its system. Grantee shall bear the expense for any City permits
required for installation and maintenance of the Equipment.
4. In the event the City reasonably determines it to be necessary, the City may
require the Grantee to remove or relocate any Equipment on public property to other public
property. The Grantee shall not be entitled to payment from the City for any portion of the
cost it incurs hereunder whether such costs are incurred directly or indirectly. The Grantee
shall bear all expense of such removal or relocation provided the City will issue, without
charge to the Grantee, whatever City permits are required for relocation of the Grantee's
Equipment. The Grantee shall use its best efforts to remove or relocate, or commence
removal or relocation of, said Equipment within ninety (90) days of notification unless the
City Manager, for good cause, extends such time.
5. The Grantee shall pay to the City for the usage of the public right-of-way for
telecommunications facilities the following amounts:
First Year $ 35,510
SecondYear $ 38,330
Third Year $ 40,250
Fourth Year $ 42,260
Fifth Year $ 44,380
The annual fee shall be due to the City within 45 days after the effective date of this License,
and upon each anniversary of that date. Notwithstanding the aforesaid, if any one or more
payments are prohibited or limited by law at the time for payment, the parties shall
renegotiate the terms of this License at such time.
6. The Grantee shall maintain all of its Equipment in good and safe order and
condition; and shall at all times fully indemnify, protect and save harmless the City, its elected
officials, officers, employees, and agents from and against any and all costs, charges and
claims arising from any act or omission of the Grantee, including, but not limited to, attorneys
fees, during the term of this License.
1999-27 -3
7. Grantee shall at all times during the term of this License maintain general
liability insurance, including bodily injury, personal injury and property damage coverage, in
the amount of two million dollars ($2,000,000) with the City of Fairfax, its elected officials,
officers, employees and agents, named as additional insureds. Grantee shall require, at all
times, that all general contractors, contractors, subcontractors or consultants performing work
under this License, maintain general liability, automobile 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, automobile
liability coverage in the amount of two million dollars ($2,000,000), worker's compensation
and employer's liability insurance coverage in the statutory amounts with the City of Fairfax,
its elected officials, officers, employees and agents named as additional insureds on such
policies. Grantee shall deliver to the City, for review and approval before any work is begun,
certificates of insurance, in a form acceptable to the City, demonstrating that the insurance
coverage required by this paragraph is in full force and effect. Such certificates shall indicate
that the insurance company shall give to the City thirty (30) days prior written notice of
expiration, cancellation, renewal or change in coverage. Thirty (30) days prior to the
expiration, cancellation or renewal of any such insurance policy, Grantee shall provide the
City with written evidence acceptable to the City, that the required insurance coverage is
effective, will be continuing during the course of the work, and that the insurance premiums
are paid. Grantee shall have the affirmative obligation, independent of the general contractor,
subcontractors and insurance companies, to keep itself and the City informed of all
expirations, renewals, cancellations and changes in insurance coverage for insurance required
under this paragraph, including the insurance coverage required of the general contractors,
contractors, subcontractors and consultants. Grantee shall immediately notify the City of any
expirations, renewals, cancellations or changes in such insurance coverage. If the City is
required to pay any claim made under the applicable insurance policies, Grantee agrees to
indemnify, pay and reimburse the City for all such claims, including all deductibles, and costs
(including attorney's fees).
8. The Grantee and its agents shall take all prudent action to avoid damage or
injury to pipes, cables, fixtures or installations of the City and of other utility services,
particularly those installations whose disruption can cause hazards or danger to persons or
property. In the event such damage or injury occurs, the Grantee shall immediately notify the
appropriate public safety department and shall cooperate and contribute its capabilities
promptly and to the extent necessary to remove any hazards and repair any damage. 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. 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 between City water and sanitary
sewer facilities and Grantee's Equipment shall be one (1) foot vertical and five (5) feet
horizontal.
9. Grantee shall continuously provide the City with an accurate and complete list
of emergency telephone numbers of representatives of Grantee and any contractors,
subcontractors, consultants or others responsible for the installation, operation and
maintenance of the 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.
1
1999-27
-4
10. Upon the expiration of the term of this License or upon earlier termination by
surrender, forfeiture or otherwise, all facilities of the Grantee in the City shall remain the
property of the Grantee and, at the option of the City, shall be removed from the streets, alleys
and public places of the City at the expense of the Grantee within a reasonable time after
expiration or termination. The Grantee shall be liable for any damage to the City property or
personal injury resulting from said removal.
11. The rights and privileges granted herein to use public property are expressly
subject to the conditions, limitations and provisions contained in the general ordinances of the
City, now in force or that may be hereafter passed by the City Council, relative to the use of
the streets, alleys and public places of the City, so far as they may be applicable to the rights
and privileges herein granted, provided such ordinances that may be passed will not place
unreasonable or impractical burden upon the Grantee. Grantee reserves its right to challenge
any conditions, limitations and provisions contained in the general ordinances of the City that
may be hereafter passed by the City Council.
12. Nothing in this License shall be construed to grant unto the Grantee any
exclusive right or to prevent a grant of similar privileges to other grantees.
13. Prior to installation of Equipment, Grantee shall submit to the City a bond in
the amount of Twenty-Five Thousand Dollars ($25,000) to ensure faithful compliance with
the conditions of this License, such bond shall be in a form acceptable to the City, meeting the
requirements of Section 2-48, et seq., of the Code of the City of Fairfax, Virginia, and shall
remain in effect throughout the term of this License. The amount of said bond shall be
subject to reasonable increases by the City upon thirty (30) days prior written notice to
Grantee, if the City determines that a higher bond amount is needed to ensure compliance
with the terms and conditions of this License.
14. Unless otherwise stated herein, all notices which shall or may be required or
given pursuant to this License shall be in writing and delivered personally or transmitted: (i)
through the United States mail; (ii) by means of prepaid overnight delivery services; or (iii) by
facsimile transmission, if a hard copy of same is followed by delivery through the United
States mail or by prepaid overnight delivery service as just described, effective upon
verification of receipt, as follows:
to the City:
to Grantee:
City Manager
City of Fairfax
10455 Armstrong Street
Fairfax, VA 22030
Thomas McHale
Vice President, Operations
Metromedia Fiber Network Services
of Virginia, L.L.C.
8201 Greensboro Drive, Suite 700
McLean, Virginia 22102
1999-27 -5
with copies to: Alan Smart
and
at the same address.
Director of
Customer Implementation
Christopher Ricciuti
Director of Operations
Notices shall be deemed given upon receipt in the case of personal delivery, three (3) days
after deposit in the mail or the next day in the case of overnight delivery. Either party may,
from time to time, designate any other person or address for this purpose by written notice to
the other party in the manner set forth above.
15. The sections, paragraphs, sentences, clauses and phrases contained in this
License are severable, and if any phrase, clause, sentence, paragraph or section of this License
shall be declared unconstitutional or otherwise invalid by a valid judgement 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 License.
16. At all times during the term of this License, Grantee, its employees, agents and
contractors, shall comply with all federal, state and local, statutes, laws, ordinances,
regulations and administrative orders. Nothing herein shall be construed to relieve Grantee,
its employees, agents and contractors from their obligations to comply with such laws.
Neither shall any provision herein be construed to release Grantee, its employees, agents and
contractors from obtaining all required permits for installation or maintenance of Equipment.
17. The City and Grantee agreed that this License describes the entire agreement
and understanding between the parties and that no written or verbal statements or
representations have been made which either modify, add to or change this License.
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 23, 1999
PUBLIC HEARING: December 14, 1999
ADOPTED: December 14, 1999
1999-27
Vote:
Councilman Coughlan
Councilman Greenfield
Councilman Lederer
Councilman Petersen
Councilman Rasmussen
Councilman Silverthorne
ATTEST:
ity Clerk
aye
absent
aye
aye
aye
aye
Mayor