2018-06
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LICENSE AGREEMENT
THIS LICENSE AGREEMENT (“Agreement”) is entered into this ____ day of
__________, 2018, by and between AT&T Corp. (AT&T) (“Licensee”), and THE CITY OF
FAIRFAX, VIRGINIA, a Virginia municipal corporation (the “City”).
RECITALS
WHEREAS, Licensee is a “certificated provider of telecommunications service” in the
Commonwealth of Virginia; and
WHEREAS, Licensee desires to use portions of the City’s Public Ways (as hereinafter defined) to
operate, maintain, repair, and upgrade its Telecommunications Facilities by installing a new fiber
optic cable in existing underground conduit (as hereinafter defined); and
WHEREAS, Licensee, 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 install its
Telecommunications Facilities within the City’s Public Ways; and
WHEREAS, the City agrees to permit Licensee 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
Licensee 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.
2. Definitions. The following terms are defined:
(a) “Access Lines” shall have the meaning as defined in § 56-468.1 of the Code of
Virginia (1950), as amended.
(b) “Certificated provider of telecommunications service” shall have the meaning
as defined in § 56-468.1 of the Code of Virginia (1950), as amended.
(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, licensees or users of the City’s Public Ways.
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(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 § 56-468.1 of the Code of Virginia (1950), as amended.
(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 Licensee.
(g) “Term” shall mean the period commencing on May ____, 2018, 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.
3. Grant.
Subject to the terms and conditions of this Agreement, the City hereby grants to Licensee, its
agents and contractors, nonexclusive permission to install its Telecommunications Facilities over
and/or under portions of the City’s Public Ways during the Term in location(s) and 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 strict accordance with this Agreement.
Licensee 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. Licensee may commence installation 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 Licensee in writing of its approval, or disapproval, of
the proposed construction within a reasonable time after delivery by Licensee to the City of plans and
specifications in a form pre-approved by the City. Further, Licensee 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, Licensee 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.
Licensee for itself, its employees, officers, agents and contractors, agrees to take all prudent
action (specifically including, but not limited to, measures required by the City) to protect all
Existing Facilities located within the City’s Public Ways from any damage or injury caused by any
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work performed by or on behalf of Licensee 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. Licensee 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 Licensee
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. Licensee shall
provide for a local, Virginia-licensed contractor to be on-call to respond within thirty (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
Licensee and the City prior to the commencement of any construction. Licensee 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 Licensee’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. Licensee shall ensure that all
utility markings it makes shall be accomplished by flags or stakes, or by spot marking with water
soluble paint.
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 Licensee 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.
Licensee 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.
Licensee agrees to continuously provide the City with an accurate and complete list of
emergency telephone numbers of representatives of Licensee 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 Licensee shall immediately notify the City of any changes to the list.
5. Indemnification.
Licensee 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
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Licensee, 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 Licensee, 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 Licensee, the City shall
promptly give written notice thereof to Licensee 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. Licensee shall pay all judgments, costs, expenses and reasonable attorneys’ fees
incurred by the City and the parties herein indemnified from such legal proceedings.
If Licensee defaults in its obligation to repair any damage(s) to Existing Facilities, then the
City may (but shall not be obligated to) cure such default and shall charge the work to be done to
Licensee in accordance with the City’s then current rates for such work, following notice to Licensee
and a minimum ten (10) day opportunity to cure the default. In the event of an emergency (defined
as any default which threatens public safety or health in the City’s reasonable determination), the
City shall only be required to give Licensee notice reasonable under the circumstances.
6. Insurance.
Licensee 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 Five Million Dollars ($5,000,000) 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.
Licensee shall require, at all times, that all contractors performing work under this Agreement
maintain general liability, auto liability, excess liability, workers compensati on and employer’s
liability insurance coverage, in the following amounts: general liability insurance coverage, in the
amount of One Million Dollars ($1,000,000) 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. Licensee 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
cancellation of coverage to the City.
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This obligation shall not relieve Licensee 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. Licensee
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 and that any insurance premiums have been paid. If the City is
required to pay any claim made under the applicable insurance policies, Licensee agrees to pay all
such claims, including all deductibles, and any fees associated with the claim, including reasonable
attorneys’ fees.
7. Bond.
Prior to the execution of this Agreement by the City, Licensee shall furnish to the City and
maintain in effect a surety bond in the principal amount of Twenty-Five Thousand and No/100
Dollars ($25,000.00) (“Bond”) to ensure faithful compliance with the conditions of this Agreement.
Such Bond shall remain in effect throughout the term of this Agreement and shall be irrevocable
during 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 Licensee or its insurers under this Agreement. Whenever the City draws upon the
Bond, Licensee shall immediately undertake actions to restore the Bond to its full amount.
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 Licensee, 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 Licensee 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, Licensee 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
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Licensee 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 Licensee cannot provide the required advance notification, in
which event Licensee 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 Licensee, which notice shall delineate with specificity the alternative Public
Ways to which Licensee may relocate such Facilities. Licensee 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 thirty (30) days after delivery of such notice. 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 may be terminated:
(a) by Licensee, 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 Licensee 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. In addition, this
Agreement shall automatically terminate if Licensee does not obtain an initial permit for installation
of the Telecommunications Facilities within one (1) calendar year following the date of this
Agreement.
13. End of Term.
As soon as practicable after the end of the Term, Licensee shall, at Licensee’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. Licensee 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.
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14. Compensation.
In consideration for execution and performance of this Agreement by the City, Licensee
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 § 56-468.1 of the Code of Virginia (1950), as amended.
Licensee agrees to pay the Public Rights-of-Way Use Fee, as modified from time to time by the
Virginia Department of Transportation. Licensee 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, Licensee 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.
If § 56-468.1 of the Code of Virginia (1950) is repealed or voided, or if Licensee provides
service other than local exchange or interexchange telephone service, and where allowed by law, on
and after the effective date of such repeal, the amount(s) paid by Licensee to the City under this
Agreement shall be calculated using the following: $2.50 per linear foot of City’s Public Ways
occupied by Licensee’s Telecommunications Facilities constructed, installed or used by Licensee
under this Agreement or any other Agreement between Licensee and the City, payable annually.
15. Assignment.
Licensee 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 Licensee 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
Licensee, any purchaser of all or substantially all of the assets of Licensee, or any company or entity
with which or into which Licensee may merge or consolidate.
16. 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.
17. Binding Effect.
The terms and provisions of this Agreement shall inure to and be binding upon the assigns
and successors in interest of Licensee and the City.
18. Severability.
The sections, paragraphs, sentences, clauses and phrases contained in this Agreement are
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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 § 56-468.1, of the Code of Virginia (1950), as
amended, the provisions in § 56-468.1 of the Code of Virginia (1950), as amended, shall control.
19. Entire Agreement.
This Agreement, including all Exhibits, if any, constitutes the entire agreement between
Licensee 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 Licensee and the City or unless
provided for herein.
20. 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 Licensee shall be given in writing to:
AT&T Corp.
3450 Riverwood Parkway, SE
Room 162-11
Atlanta, GA 30339
Attn: Right of Way Dept.
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 __________, 2018.
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WITNESS/ATTEST: AT&T Corp.
______________________________
By:___________________________________
A.S. Richardson
Sr. Technical Project Manager
ACKNOWLEDGMENT
STATE OF Georgia )
COUNTY OF Gwinnett ) SS:
On this ____ day of _________________, 2018, before me, personally appeared A. S.
Richardson to me known, who, being by me duly sworn, did depose and say that he is the Sr.
Technical Project Manager of AT&T Corp., the corporation described in, and which executed the
foregoing instrument, and that he signed his name thereto by authority of the Board of Directors.
Notary Public
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ATTEST: CITY OF FAIRFAX, VIRGINIA,
a Virginia municipal corporation
______________________________ By:____________________________________
City Clerk Name: Robert L. Sisson
Title: City Manager
Approved as to form:
________________________________________
City Attorney
COMMONWEALTH OF VIRGINIA
CITY OF FAIRFAX
The foregoing instrument was acknowledged before me this ____ day of ____________,
2018, by Robert L. Sisson as City Manager on behalf of the City of Fairfax, Virginia.
_______________________________________
Notary Public
My Commission Expires: ______________________________
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