2009-21ORDINANCE NO. 2009-21
AN ORDINANCE GRANTING AN EXTENSION (AND RENEWAL) OF A
LICENSE TO ABOVENET OF VA, L.L_C.
TO USE THE PUBLIC RIGHT-OF-WAY FOR ITS WTRES,
CONDUITS, CABLES AND FIXTURES FOR THE
PROVISION OF TELECOMMUNICATIONS SERVICES
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
W HEKEAS, 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 aclctiowledged, the parties hereto agree as follows:
1. Recitals- The recitals hereto are incorporated herein by this reference.
2. De~nitions_ The following terms are defined:
~a) "Access Lines" shall have the meaning as defined in Section- 56-468.1
of the Code of Virginia X1950), as amended-
(b) "Certificated provider of telecommunications service" shall the
meaning as defined in Section 56-468.1 of the Code of Virginia <1950), as amended.
~c) "Existing Facilities" shall mean existing water, gas and sewer pipers 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-o f--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 mariner specified in Section 56-468.1 of the Code of
Virginia X1950), as amended-
fie) "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 Grantee_
fig) ""f erm" shall mean the period commencing on September 29, 2009, and
ending on the fiRh <Sth) anniversary thereof unless terminated at an earlier date in accordance
with the terms and conditions of Section 1 3 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 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.
4. Agreement to Protect Existing Facilities.
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,
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.
All 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 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.
6. Insurance.
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 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 deductibles, and any fees associated with the claim, including reasonable
attorneys' fees.
7. Deposit.
Grantee and the City acknowledge that the City currently holds a cash deposit from
Metromedia Fiber Network, Inc., predecessor in interest to Grantee, in the principal amount of
Twenty-Five Thousand Dollars ($25,000) ("Deposit") that ensures faithful compliance with
the conditions of this Agreement. Such Deposit shall remain in effect throughout the term of
this Agreement. The purpose of the Deposit 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 Deposit shall in no way
limit the liability or obligations of Grantee or its insurers under this Agreement. If the funds
represented by the Deposit become exhausted, Grantee shall immediately provide the City
with a new Deposit in the amount of Twenty-Five Thousand Dollars ($25,000).
8. Release of the Deposit.
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. At the
conclusion of the term of this Agreement, after all of the Telecommunications Facilities are
removed or abandoned in place as directed by the City's representative and in accordance
with City specifications and any damage to the Public Ways is repaired in accordance with
Section 13, the City will promptly issue a notice of completion and will release the Deposit,
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.
10. Notice to City Prior to Entering City's Public Ways
Grantee shall provide notice to the City's Street Superintendent 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's Street Superintendent 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 sixty (60) 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 Section 56-468.2 of the Code
of Virginia (1950), as amended.
12. Termination.
This Agreement maybe 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 any provisions in this Agreement to the contrary, the terms and
conditions of this Agreement pertaining to indemnification shall survive termination.
13. End of Term.
As soon as practicable after the end of the Term, Grantee shall, at Grantee's cost and
expense, and as directed by the City's representative, either (i) remove from the Public Ways
all of its Telecommunications Facilities, or (ii) abandon its Telecommunications Facilities in
place in accordance with City specifications . Grantee shall repair any damage to the Public
Ways caused by the removal or abandonment of such Telecommunications Facilities. The
terms and conditions of this Agreement concerning the removal or abandonment of
Telecommunications Facilities shall be applicable to any removal or abandonment of
Telecommunications Facilities under this Agreement.
14. Comuensation.
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 the amount set by the
Virginia Department of Transportation annually pursuant to Section 56-468.1 of the Code of
Virginia (1950), as amended. In no event will the Public Rights-of--Way Use Fee be less than
as provided by Section 56-468.1(C) of the Code of Virginia (1950), as amended. 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, permitting, and like 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.
15. 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.
16. Assignment.
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.
17. 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.
18. 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.
19. 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. In the event
there is any conflict between the terms or definitions contained in this Agreement and Section
56-468.1, of the Code of Virginia (1950), as amended, the provisions in Section 56-468.1 of
the Code of Virginia (1950), as amended, shall control.
20. 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.
21. 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 Grantee shall be given in writing to:
AboveNet of VA, L.L.C.
c/o AboveNet, Inc.
360 Hamilton Avenue
White Plains, NY 10604
Attn: General Counsel
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.
IN WITNESS WHEREOF, the parties have caused this Agreement to be signed by its
proper officers this day of , 2009.
WITNESS/ATTEST: AboveNet of VA, L.L.C.
a Virginia Limited Liability Company
By:_
Name:
Title:
COMMONWEALTH OF VIRGINIA
COUNTY OF
The foregoing instrument was acknowledged before me this day of
2009, by as on
behalf of AboveNet of VA, L.L.C.
My Commission Expires:
Notary Public
Registration Number:
ATTEST:
City Clerk
COMMONWEALTH OF VIRGINIA
CITY OF FAIRFAX
CITY OF FAIRFAX, VIRGINIA,
a Virginia municipal corporation
Name: Robert Sisson
Title: City Manager
Approved as to form:
City Attorney
The foregoing instrument was acknowledged before me this day of
2009, by Robert Sisson as City Manager on behalf of the City of Fairfax,
Virginia.
My Commission Expires:
Notary Public
Registration Number:
This ordinance shall become effective as provided by law.
INT[2ODUCFD: _Tuly 14, 2009
PUBLIC HEARING: September 22, 2009
ADOPTED: September 22, 2009
Mayor
ATTEST:
~~ ~~~ ~~
~~ City Clerk
Votes
Councilwoman Cross Aye
C ounciln~an Drummond Absent
C ouncilnzan Grcent3ald Absent
Councilor aiz Mayor Ayc
Councilman Rasmussen Aye
Councilman Sto nibres Aye