2013-10 ORDINANCE NO. 2013-10
To grant to Virginia Electric and Power Company, a public service
corporation doing business in the Commonwealth of Virginia as Dominion
ht for the term and upon
Virginia Power, its successors and assigns, the right,
the conditions herein stated, to use as a provider of retail electric services
the Public Rights-of-Way of the City of Fairfax, Virginia, and to acquire,
and use, and to the extent now
construct, install, operate, maintain, poles, towers,
constructed or installed to operate, maintain, and use, p
structures, attachments, wires, cables, conduits, ductways, manholes,
handholes, meters, appliances, and other equipment necessary or useful in
the distribution, transmission, or sale of electricity in, over, along, on, and
under the Public Rights-of-Way of the City, for the purpose of distributing,
transmitting, and selling electricity at any points within the corporate limits
of the City as the same now exist or may hereafter be extended or altered.
BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FAIRFAX,VIRGINIA:
1. Grant of Franchise. That the right is hereby granted unto Virginia Electric and Power
Company, a public service corporation doing business in the Commonwealth of Virginia as
Dominion Virginia Power,hereinafter referred to as the "Grantee," its successors and assigns, for
the term and subject to the conditions and limitations hereinafter stated, to use as a provider of
retail electric services the Public Rights-of-Way of the City of Fairfax, Virginia, hereinafter
referred to as the "City," and to acquire, construct, install, operate, maintain, and use, and to the
extent now constructed or installed to operate, maintain, and use, poles, towers, structures,
attachments, wires, cables, conduits, ductways, manholes, handholes, meters, appliances, and
other equipment necessary or useful in the distribution, transmission, or sale of electricity.
hereinafter referred to as "Facilities," in, over, along, on, and under the Public Rights-of-Way of
the Cit for the purpose of distributing, transmitting, and selling electricity at any po nt within
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the corporate limits of the City as the same now exist or may hereafter be extended or altered;
provided that such right to sell electricity shall extend only to such areas of the City as are now or
may hereafter be allotted to the Grantee for service by authority of a certificate of public
convenience and necessity issued by the State Corporation Commission in accordanc with law.
All Facilities shall remain the property of Grantee. Grantee shall have the rights to inspect.
rebuild, remove, repair, maintain, improve, alter, modify, replace, and relocate the Facilities, and
to make such changes, alterations, substitutions, additions to or extensions of the Facilities as
Grantee may from time to time deem advisable in its sole and absolute discretion, except as
otherwise provided in this Ordinance.
2. Public Rights-of-Way. As used in this Ordinance, the term "Public Rights-of-Way'
means the streets, alleys,roads,bridges. sidewalks,lanes, courts,ways, and boulevards, including
utility easements, waterways, or other public places used as public rights-of--way, as the I same
now or may hereafter exist, which
are under the jurisdiction or control of the City. term
"Public Rights-of--Way" does
not include (a) private property and private easements and (b)
buildings, parks, signs,
fences, tanks, poles, lines, fixtures, facilities, and other tangible property
or appurtenances of the City.
3. Permits;Location of Facilities.
after the date on which this Ordinance shall become effective, the
(a) From and this
along, on, and under the Public Rights-of-Way authorized by
Facilities in, ov er,
located and constructed shall be located at reasonably suitable and convenient
Ordinance to be loca lans showing the
points. The Grantee shall file with the Director of Public Works of the City p
osed additional or relocated Facilities, and obtain a permit therefor from the
location of prop hts-of--Way•
for to their construction in, over, along, on, and under the Public Rig
City pr ermit from the
Except as provided in Section 3(b), any work performed by Grantee without a p
P
alon , on, and under the Public Rights-of-Way is a violation of this Ordinance.
City in, over g
approval of the State Corporation Commission is required by law, the location
Except where a pp
of the proposed Facilities shall be subject to review by the City Manager or his designee with
the art of the Grantee to appeal from his decision to the City Council, and the
the right on p
decision of the Council on such appeal shall be subject to judicial review.
(b) During an Emergency Situation, the Grantee may perform all reasonable work to
service and alter its Facilities to ensure the safety of all citizens of the City, and need
restore
not file plans
with the Director of Public Works of the City or obtain a permit before
commencing the work; provided, however, that the Grantee shall notify the Director of Public
Works of the City of any such work within a reasonable time after such work'is completed
and 96 hours shall be presumed to be a reasonable time. In providing such notice,the Grantee
shall describe the location and nature of all such work. As used in this Section 3(b), an
"Emergency Situation" is an event that is beyond the ability of the Grantee to control and that
creates an imminent threat of danger to public safety or interruption of electric service. This
includes, but is not necessarily limited to. severe weather conditions, strikes, labor
disturbances, war or acts of war, insurrection, riots, act of public enemy, fire, flood, or other
acts of God.
4. Removal and Relocation of Facilities.
(a) Whenever the City shall determine that it is necessary in connection with
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repair, maintenance, relocation, or improvement of the Public Rights-of-Way, provided
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at a
principal purpose of such repair, maintenance, relocation, or improvement of the Public
Rights-of-Way is to preserve or enhance the public's use of the Public Rights-of-Way for
transportation (in any mode) and/or to preserve or enhance the safety of the Public Rights-of-
Way, the City may require by written notification that any Facilities of Grantee be remov d or
relocated. Within thirty (30) days after receipt of notification unless the City Manager for
good cause extends such time, Grantee shall submit to the City Manager a design plan and
work schedule for removing or relocating the Facilities to such place as shall be mutually
agreeable with the City Manager or his designee and Grantee. Grantee shall complet the
removal or relocation within a reasonable period of time after submitting its design pl and
work schedule to the City Manager, and ninety (90) days shall be presumed to be a reasonable
period of time. Grantee shall, with respect to its Facilities located in, over, along, on and
under the Public Rights-of-Way, bear all costs of relocation and removal and shall instal any
new or additional Facilities on a Like-for-Like or Better basis. As used in this Secti
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n 4,
"Like-for-Like" means the installation or relocation of Facilities in a like or similar manner of
construction when compared to previously installed Facilities. For example, placement of
Facilities above-ground using aerial construction in locations where existing Facilities are
constructed above ground (aerial-to-aerial), or the placement of Facilities underground in
locations where existing Facilities are constructed underground, are "Like-for-Like"; in the
case of underground Facilities, conduit installations are to be replaced by conduit, and irect
burial installations (where permitted) are to be replaced by direct burial. As used i this
Section 4, "Better" Facilities include Facilities which the Grantee, in its discretion, favors over
Like-for-Like Facilities. For example, as a general matter the City prefers underground
Facilities to overhead Facilities. If the Grantee decides that it would also prefer to place
certain overhead Facilities underground, its work will be performed on a "Better" basis. As
another example, if the Grantee decides to replace existing poles with poles that are #Wore
aesthetically pleasing, its work will be performed on a"Better"basis.
(b) In the event that the City specifically requests that the Grantee install Facilities
that are more expensive than Like-for-Like Facilities, the City shall bear the cost of relocation
or removal, but only by the amount by which the cost of the more expensive Facilities exceeds
the cost of Like-for-Like Facilities.
(c) If Grantee does not complete removal or relocation within the period ofitime
required by Section 4(a), then the City may, after giving at least fifteen (15) days' witten
notice to Grantee, take such actions at Grantee's expense as are necessary to effect such
removal or relocation. In the event the City effects the removal or relocation of any Facilities
pursuant to this Section 4, the City shall not be liable to the Grantee for any damages incurred
by Grantee that result from such removal or relocation, unless such damages are the result of
negligence or recklessness or willful misconduct on the part of the City or its agents,
contractors, or employees. In addition, in the event the City effects the removal or relocation
of any Facilities pursuant to this Section 4, Grantee shall indemnify the City for, and hod the
City harmless from, any and all losses, damages, judgments, liabilities, costs, and expenses
arising from or based upon the claims of third parties who allege personal injury, pr perty
damage, or other loss caused, in whole or in part, by the removal or relocation; provide , that
Grantee shall not be required to indemnify and hold the City harmless to the extent th t the
loss incurred by a third party is caused by negligence or recklessness or willful miscond ct on
the part of the City or its agents, contractors, or employees.
5. Tree Trimming.
(a) In the design, location. construction, installation, improvement, mainte ance,
repair, and use of Facilities herein authorized, Grantee shall at all times have the right t keep
the Facilities clear of all trees, stumps, roots, and undergrowth, and to trim or fell an trees
which, in the Grantee's reasonable opinion, may endanger the safe or proper operation f the
Facilities, which shall include any tree which if falling or being felled could come wit 'n ten
feet of any of Grantee's Facilities. Grantee's work shall be consistent with the Best
Management Practices, Utility Pruning of Trees, published by the International Soci ty of
Arboriculture, 2011, as the same may be revised from time to time. Grantee shall avoid
unnecessary damage to the shade trees in and along the Public Rights-of-Way and other public
property of the City and shall not cut or otherwise injure such trees to any greater extent than
is reasonably necessary in the construction, maintenance, and operation of Grantee's Facilities
as herein authorized and provided. Grantee shall not perform any non-emergency tri ing,
maintenance, or removal of trees without providing the City's Right-of-Way Supervis with
reasonable advance notice of such activity, including a list of those Public Rights-of-Way or
areas of the City where tree trimming, maintenance, or removal activities are scheduled to
take place. Grantee shall provide reasonable advance notice, either in person or in writing, to
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residents along the routes of any such work. Where in the opinion of the City's Right-of-Way
Supervisor or his designee the trimming will badly disfigure a particular tree, then upon
written notice from the City's Right-of-Way Supervisor or his designee Grantee shall cause
such tree to be removed and will allow the City at its election and expense to replace such tree
with one appropriate for the location.
(b) The City shall not install any new trees in, under, along, or in proximity to
Grantee's Facilities within the City's Public Rights-of-Way unless and until it has con ulted
with and obtained approval of Grantee's Manager — Distribution Forestry (or his r her
designee) concerning such installation. Grantee's approval will not be unreasonably wit eld,
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conditioned, or delayed.
6. Restoration and Protection of City Property. In the event Grantee shall injure or
otherwise cause damage to any pavement, sidewalk, sewer, water, or other pipe or works of the
City, or any other property of the City, Grantee shall immediately notify the Director of>"ublic
Works of the City and promptly repair or replace the same at its own cost and expense. lin the
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event Grantee has not completed the repair or replacement work identified in a notice provided
by the City within thirty(30)days of the date of the damage,the City may undertake the re air or
replacement work, and Grantee shall thereafter reimburse the City for any and all costs in urred
by the City in performing the work. In the event the City undertakes repair or replacemen work
pursuant to this Section 6, the City shall not be liable for any damages incurred by Grantee that
result from such work. In addition, in the event the City undertakes repair or replacement work
pursuant to this Section 6, the Grantee shall indemnify the City for, and hold the City h less
from, any and all losses, damages, judgments, liabilities, costs, and expenses arising f m or
based upon the claims of third parties who allege personal injury, property damage, or other loss
caused, in whole or in part, by the work; provided, that Grantee shall not be required to
indemnify and hold the City harmless to the extent that the loss incurred by a third party is aused
by negligence or recklessness or willful misconduct on the part of the City or its agents,
contractors, or employees.
7. Use of Grantee Facilities by the City. Grantee shall, when so requested by t e City
Manager, allow its poles and other overhead structures to be used by the City, free of r ntal or
similar charge, for the purpose of placing thereon any traffic lighting, cable for traffic lig ting,
signs, fire and police alarms, telephone wires, and other appliances which may be necess for
the exclusive use of the police or fire department of the City; provided that the City shall follow
all practices and procedures of Grantee with respect to attachment of facilities to Gr4 tee's
property, including but not limited to obtaining all necessary permits from the Grantee, and
provided further that such use by the City shall not interfere with the proper use of said poles and
other overhead structures by Grantee. The location and character of the City's traffic lighting,
cable for traffic lighting, signs, fire and police alarms,telephone wires, and other appliances shall
be subject to the approval of Grantee. The City shall indemnify and save harmless Grantee from
any and all loss, damage, cost, or expense to or which may be incurred by the Grantee, or to
which it may be subjected by reason of, or as a result of, the use of said poles and other overhead
structures by the City as provided herein.
8. Use of Grantee Facilities by Third Parties. Prior to allowing any third party to plat any
facilities or equipment on or otherwise use Grantee's Facilities located in the Public Righ s-of-
Way, Grantee shall in its agreement with the third party require that the third party ob
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'n all
legally required authority and consent from the City to occupy and use the Public Rights-of-Way.
9. Indemnification. Grantee agrees and binds itself, by the acceptance of this Ordinance, to
indemnify, keep, and hold the City free and harmless from liability on account of injury or
damage to persons or property growing out of the construction, improvement, maintenance,
repair, and operation of its Facilities, and in the event that suit shall be brought against the City,
either independently or jointly with the Grantee on account thereof, the Grantee, upon written
notice to it by the City, will defend the City in any such suit at the cost of the Grantee, and, in the
event of a final judgment being obtained against the City, either independently or jointly with the
Grantee, the Grantee will pay such judgment, with all costs, and hold the City harmless
therefrom; but nothing contained herein shall be construed to render the Grantee liable for the
acts or omissions of the City or its agents or employees or of any other person or corporation.
10. Protection of Property of Other Utility Services. The Grantee shall take all prudent action
to avoid damage or injury to pipes, cables, fixtures, and installations 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 such
other affected utility and the City Manager or his designee and shall cooperate and contribute its
capabilities to the extent necessary to remove any hazards and repair any damage.
11. Service. The rights and privileges set forth herein are granted and conferred up the
Grantee upon the express condition and understanding on the part of the Grantee that i will
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render to the public in the City within the territory served by the Grantee, at all times duri g the
term of this Ordinance,reasonably adequate electric service, and that it will maintain its Fac lities
located within the City in good order throughout the term of this grant, and the Grant e by
accepting this Ordinance expressly agrees that the State Corporation Commission shall have
jurisdiction,to the full extent and in the manner now or hereafter during the life of this Ordi ance
provided by law, to require the Grantee to render reasonably adequate electric service d to
maintain its Facilities in good order throughout the term of this grant.
12. Undergrounding.
(a) If the City requests that Grantee's Facilities be placed underground and t the
City's expense constructs and installs to Grantee's specifications the conduits, ductways,
manholes, handholes, and appliances and devices (including but not limited to switches, taps,
transformers, and the like) necessary to facilitate the undergrounding of the Grantee's ex sting
or proposed overhead Facilities, the Grantee shall, at its sole expense, design, remov(', and
relocate such portions of its existing or proposed overhead Facilities underground. The City
will obtain or cause to be obtained, without charge to the Grantee, suitable public or p ivate
easements as may be required by Grantee for such underground Facilities. The ext nt of
undergrounding that shall be required of the Grantee pursuant to this Section 12(a) a ually
shall not exceed two hundred (200) circuit feet, and six hundred (600) circuit feet shall e the
maximum extent of undergrounding that may be aggregated pursuant to this Section 12(a) by
the City and required to be installed by the Grantee in any one year; provided, that the City
shall have given advance written notice to the Grantee, which the Grantee shall have rec ived
no later than June 30 of the previous calendar year, of the extent and general location of the
undergrounding that the City desires to undertake in any calendar year, and the Grantee's
annual obligations under this Section 12(a) shall be contingent on such notice. The extnt of
undergrounding that shall be required of the Grantee pursuant to this Section 12(a) during the
twenty (20) year term of this Ordinance shall in all events not exceed three thousand (3,000)
circuit feet. I
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(b) The Grantee shall not be responsible for any costs required for relocation f any
Facilities that have been placed underground pursuant to Section 12(a) during the term o this
Ordinance.
(c) Any undergrounding of the Grantee's Facilities requested by the City that is in
excess of that required by Section 12(a) will be at the City's expense. In such event, G antee
will openly and fully disclose the cost of such work to the City within sixty (60) days n f the
City's request.
(d) In the event that the Grantee undertakes any undergrounding of its Fac'I ities,
without regard to whether the undergrounding will occur pursuant to Section 12(a), S;ction
12(b), or Section 12(c), the Grantee shall cooperate with the City and other utilities hose
facilities are collocated on existing poles or other structures to ensure that those facilities are
properly removed and relocated.
13. Damage to Grantee Facilities. Should any person intentionally destroy or damage y of
the Facilities of the Grantee, constructed and maintained in accordance with provisions f this
Ordinance,within the corporate limits of the City; or tamper with any metering device inci ent to
the Grantee's Facilities or otherwise intentionally prevent such metering device from properly
registering, or illegally divert electric service so that it does not pass through the metering device;
or unlawfully or maliciously obstruct, tamper with, remove, or injure any part of Grantee's lines
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or any fixture thereof, or unlawfully or maliciously open, close, displace, tamper with, or injure
any switch, switch point, switch lever, signal lever, or signal of Grantee, whereby the life f any
person on any canal, railroad, or urban, suburban, or interurban electric railway is put in peril,the
City shall, at Grantee's request, reasonably cooperate in any criminal prosecution or other legal
action against such individual; provided, however, that Grantee understands and acknowledges
that the City Attorney has no authority to prosecute these types of violations of the Vrginia
Code, and nothing in this Section 13 shall be construed to require such action.
14. Transfer of Franchise. All of the rights and privileges hereby granted to the Grantee may
be exercised by any successor or successors or assignee or assignees of the Grantee, but such
successor or successors or assignee or assignees shall be subject to all of the proisions,
obligations, stipulations, and penalties herein prescribed. The franchise granted herein shall not
be assigned or otherwise transferred without the prior written approval of the City, which
approval will not be unreasonably withheld.
15. Term. The rights and privileges hereby granted shall continue for the period of twenty
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(20) years from and after the final passage of this Ordinance, unless the same be sc,oner
voluntarily surrendered by the Grantee, with the consent of the City Council, or unless the same
be sooner terminated or forfeited as provided by this Ordinance or other law. Upon the expi ation
of the term of this grant and upon the termination of the rights hereby granted, by sun nder,
forfeiture, or otherwise, all of the Facilities of the Grantee in the Public Rights-of-Way shall
remain the property of the Grantee and may be removed from the Public Rights-of-Way t the
option and at the expense of the Grantee within a reasonable time after the expirati n or
termination of such rights and privileges.
16. Surety Bond. This Ordinance and the rights and privileges hereby granted and conferred
shall not become effective unless and until the Grantee shall file with the Clerk of the C;ty its
written acceptance thereof, in form satisfactory to the City, and shall enter into a bond in t - sum
of Fifty Thousand and No/100 Dollars ($50,000.00), with surety satisfactory to the City,
conditioned to the effect that the Grantee will construct and maintain, or if constructe., will
maintain,the Facilities provided for herein and reasonably necessary for the exercise of the rights
and privileges granted in and by this Ordinance, and will maintain the same in goody order
throughout the term of this grant, and will comply with the terms, provisions, and conditions of
this Ordinance in all respects. The bond will be in the form of Exhibit 1 attached hereto.
17. Other Ordinances. The rights and privileges granted herein to use the Public Rig its-of-
Way are expressly subject to the conditions, limitations, and provisions contained in the general
ordinances of the City of Fairfax, Virginia, in force, or that may be hereafter passed by thel City,
relative to the use of the Public Rights-of-Way so far as they may be applicable to the rig is and
privileges herein granted, provided such ordinances that may be passed will not pla e any
unreasonable or impracticable burden upon the Grantee.
)
18. Severability. The sections, paragraphs, sentences, clauses, and phrases contained in this
Ordinance are severable, and if any section, paragraph, sentence, clause, or phrase of this
Ordinance shall be declared unconstitutional or otherwise invalid by a valid judgment or decree
of a court of competent jurisdiction, such unconstitutionality or invalidity shall not affect)any of
the remaining sections,paragraphs, sentences, clauses, or phrases of this Ordinance.
19. Enforcement and Termination.
(a) In the event that the City believes that the Grantee has failed to perform any aterial
obligations under this Ordinance and that such failure is not the result of circumstances eyond
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public hearing no less than thirty (30) days
the Grantee's control, the City Council may hold a p g �'
after providing written notice thereof to the Grantee. The written notice shall specify the nature
of the alleged default. Witnesses shall testify under oath and shall be subject to cross
examination. If, at the conclusion of such hearing, the City Council determines that the Grantee
is in breach of this Ordinance,the City Clerk shall give written notice thereof to the Grantee,who
shall thereupon have two (2)months in which to remedy the condition(s)which were the subject
of such determination. In the event that the Grantee fails to remedy such condition(s) within the
two-month period, the City Council may terminate this Ordinance and the Grantee shall have no
further rights, privileges, or authority hereunder; provided that a decision by the City Council to
terminate the Ordinance shall be subject to judicial review.
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The availability of the remedy specified in Section 19(a) shall not preclude either
party from seeking and enforcing a writ of mandamus in the Fairfax Circuit Court purs t to
Section 15.2-2106 of the Code of Virginia, or any successor statute, or from bringing any other
suit or action which such party would be entitled to bring at law or in equity,as provided b law. _
(c) The failure of either party to at any time require performance by the other p rty of
any provision hereof shall in no way affect the rights of such party thereafter to enfore the
same. Nor shall the waiver by either party of any breach of any provision hereof be takEn as a
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waiver of any succeeding breach of such provision or of the provision itself.
20. No Joint Venture. Nothing herein shall be deemed to create a joint venture or pri icipal-
agent relationship between the parties, and neither party shall be authorized to act toward third
persons or the public in any manner which would indicate any such relationship with the other.
21. Entire Agreement.
(a) This agreement represents the entire franchise agreement between the partes and
supersedes all prior franchise agreements, including course of performance, course of healing,
and usage of trade.
(b) Should any provision of this Ordinance require interpretation or construction, it is
agreed by the parties that the court interpreting or construing this Ordinance shall not apply a
presumption that the provision be more strictly construed against one party by reason of the
rule of construction that a document is to be construed more strictly against the paity who
itself or through its agents prepared the same, it being agreed that the parties hereto and their
respective attorneys and agents have fully participated in the preparation of all pr
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visions
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hereof. -
This Ordinance shall be in force from its passage.
ADOPTED by the City Council of the City of Fairfax, Virginia this 14th day of May, 2013.
APPROVED:
5-6-1./ 3.—e-2-4LIA-
Mayor
ATTESTED:
L0,44,-: -.‘ „
City Clerk
Votes
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Councilman DeMarco Aye
Councilman Drummond Aye
Councilman Greenfield Aye
Councilman Meyer Aye I
Councilmember Schmidt Aye
Councilman Stombres Aye
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The terms and conditions of this franchise are agreed to by the Grantee:
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VA J/ ,ye Sal ;0ati
Title
)2l / 13
1
Date
EXI-1413IT 1
FRANCHISE BOND
KNOW ALL PERSONS BY THESE PRESENTS that we, [INSERT GRANTEE
EE NAME], as Principal, and INSERT NAME OF
NAME], d/b/a [INSERT GRANT ], p [
SURETY],a corporation organized under the laws of the State of[INSERT NAME OF ST TE],
as Surety, are held and firmly bound unto the City of Fairfax,Virginia as Obligee,in the s of
Fifty Thousand and No/100 Dollars ($50,000.00), for the payment whereof, well and truly to be
made, we bind ourselves, our successors, assigns,heirs, executors, and administrators,jointly
and severally, firmly by these presents.
The condition of the above obligation is such that whereas under the date of
, the above-bounden Dominion Power, did enter into an agreement with the City of
Fairfax, Virginia,therein called the City, for the operation of an electric distribution system as
referenced in a City Ordinance and amendments.
NOW, THEREFORE, the condition of the foregoing obligation is such, that if
Dominion Power shall faithfully comply with such ordinance according to the terms thereof,
and shall well and truly indemnify and save harmless,the City from any pecuniary loss resulting
from the breach of any of the terms, covenants, and conditions of such ordinance, then this
obligation shall be void, otherwise to remain in full force and effect.
PROVIDED,however,that the liability of the Surety hereunder shall in no event exceed
the penal sum of this bond as stated above, regardless of the number of years the bond shall
continue in force, and
THIS obligation may be cancelled by the Surety by giving thirty (30) days' notice in
writing of its intention to do so to the City.
Witnessed our hands and seals this day of , 2013.
Dominion Power
d/b/a Dominion Power
By:_
Principal —Vice President
[INSERT NAME OF SURETY]
By:
Attorney-in-fact