20030422 2003-11ORDINANCE NO. 2003-
AN ORDINANCE AMENDING THE LICENSE AGREEMENT
BETWEEN THE CITY OF FAIRFAX, VIRGINIA, AND MFN OF VA, LLC,
WITH RESPECT TO THE PAYMENT SCHEDULE FOR THE THIRD,
FOURTH, AND FIFTH YEARS OF THE LICENSE.
WHEREAS, on December 14, 1999, the City Council of the City of Fairfax, Virginia,
adopted an ordinance granting a license for a period of five (5) years to MFN of VA, LLC
("Grantee"), to use Lee Highway, Arlington Boulevard and University Drive within the City
limits for its wires, conduits, cables and fixtures for the provision of telecommunications
services (the "License"); and
WHEREAS, on December 15, 1999, the City and the Grantee executed a License
Agreement setting forth the terms and conditions of the License, and establishing an annual
payment schedule in Section 5 of the License Agreement for the usage of the public rights-of-
way; and
WHEREAS, the Grantee failed to make the third year payment of $40,250 on or
before January 29, 2002 as required by the License Agreement;
WHEREAS, the Grantee failed to make the fourth year payment of $42,460 on or
before January 29, 2003, as required by the License Agreement;
WHEREAS, the fifth and final payment under the terms of the License Agreement in
the amount of $44,380 is to be paid by the Grantee on or before January 29, 2004; and
WHEREAS, on May 20, 2002, Metromedia Fiber Network, Inc., and its subsidiaries,
including the Grantee, filed for Chapter 11 bankruptcy protection, and on October 16, 2002,
the City filed a proof of claim in the amount of $126,890.00, representing the third, fourth,
and fifth year payments under the License Agreement; and
WHEREAS, the Grantee proposed a payment schedule in order to fulfill its
obligations under the License Agreement and to settle the City's claim, and on March 25,
2003, the United States Bankruptcy Court of the Southern District of New York entered an
Order Authorizing the Assumption of a Certain License Agreement with the City of Fairfax,
Virginia, and Authorizing and Approving the Amendment of that Agreement Pursuant to
Sections 105, 363, and 365 of the Bankruptcy Code; and
WHEREAS, acceptance of the payment schedule proposed by the Grantee and
approved by the Bankruptcy Court is in the best interest of the City; and
WHEREAS, the City and the Grantee desire to amend the License Agreement to
reflect the payment schedule agreed to by the parties and approved by the Bankruptcy Court.
BE IT ORDAINED, by the City Council of the City of Fairfax, Virginia, that the
License Agreement dated December 15, 1999, between the City and MFN of VA, LLC
("Grantee"), authorizing the Grantee to use Lee Highway, Arlington Boulevard and
University Drive within the City limits for its wires, conduits, cables and fixtures for the
provision of telecommunications services for a term of five (5) years, is hereby amended as
follows:
1. The recitals hereto are incorporated herein by this reference.
Defined terms, not specifically defined herein, are as defined in the License
Agreement.
o
o
o
o
Section 5 of the License Agreement is hereby amended in its entirety to read as
follows:
"For the usage of the public rights-of-way for telecommunications facilities pursuant
to this License Agreement, the Grantee shall make payments to the City in accordance
with Exhibit A, attached hereto and made a part hereof. 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."
Except as specifically modified herein, the License Agreement is hereby ratified
and confirmed and continues in full force and effect.
This First Amendment 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.
The terms and provisions of this First Amendment shall inure to and be binding upon
the assigns and successors in interest of the Grantee and the City.
Upon the effective date of this Amendment, MFN shall be deemed in good standing
under the terms of the License Agreement by the City.
This Amendment is subject to bankruptcy court approval and approval by the City
Council of the City of Fairfax. MFN and the City shall work in good faith toward
securing such approvals.
EXHIBIT A
Schedule of payments
Date
02/15/03
03/15/O3
04/15/O3
05/15/03
06/15/03
07/15/03
08/15/03
09/15/03
10/15/03
11/15/03
12/15/03
01 / 15/04
02/15/04
03/15/04
04/15/04
05/15/04
06/15/04
07/15/04
08/15/04
09/15/04
10/15/04
11/15/04
12/15/04
5,442.27
5,442.27
5,442.27
5,442.27
5,442.27
5,442.27
5,442.27
5,442.27
5,442.27
5,442.27
5,442.27
9,140.61
9,140.61
9,140.61
9,140.61
4,574.26
3,698.33
3,698.33
3,698.33
3,698.33
3,698.33
3,698.33
3,698.33
BE IT FURTHER ORDAINED by the City Council of the City of Fairfax, Virginia,
that the City Manager is authorized and directed to execute a First Amendment to License
Agreement containing the terms and conditions set forth herein.
This ordinance shall become effective upon adoption as provided by law.
INTRODUCED: April 8, 2003
PUBLIC HEARING: April 8, 2003
ENACTED: April 22, 2003
ATTEST:
at~
The vote on the motion to adopt the ordinance is recorded as follows:
Councilwoman Cross
Councilman Greenfield
Councilwoman Lyon
Councilman Rasmussen
Councilman Silverthorne
Councilwoman Winter
Vote
Aye
Aye
Aye
Aye
Absent
Aye