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HomeMy Public PortalAbout2001_06_26_O010 Approving the Dominion Telecom Franchise AgreementThe Town of Leesburg, ORDINANCE NO. 2001-O- 10 PRESENTED ADOPTED June 26, 2001 June 26, 2001 AN ORDINANCE: APPROVING DOMINION TELECOM FRANCHISE AGREEMENT WHEREAS, Dominion Telecom, Inc. has proposed a five-year, non-exclusive franchise agreement (Attachment I) to use the public rights-of-way within the town to provide telecommunications services; and WHEREAS, the Economic Development Commission and the Information Technology Commission recommend approval of the proposal; and WHEREAS, the Town Attorney recommends approval of the franchise agreement. THEREFORE, ORDAINED by the Council of the Town of Leesburg, Virginia as follows: SECTION I: The attached franchise agreement is approved and the Mayor is authorized and directed to execute it. SECTION II: This ordinance shall be effective upon adoption. PASSED this 26th day of June, 2001. ATTEST: Mayor Town of Leesburg erk of Council O: dominion telecom franchise FRANCHISE AGREEMENT TERMS AND CONDITIONS FOR USE OF TOWN'S RIGHTS OF WAY This Franchise Agreement (the "Agreement") is dated this ~& day of x,/'~//~ , 2001, by and between the Town of Leesburg, Virginia, a Virginia municipal corporation (the "Town") and Dominion Telecom, Inc., a Virginia corporation (the "Franchisee"), having its principal place of business at 701 East Cary Street, 9th Floor, Richmond, VA 23219. Section 1 Grant In consideration of Franchisee's billing and collecting from its customers and remitting of any fees under Section 2, as applicable, the Town hereby awards to Franchisee, its successors and assigns, for the term of five (5) years after the Effective Date (as defined in Section 18), and subject to the conditions and limitations described herein, a non-exclusive franchise to use the streets, alleys, sidewalks, rights-of-way, and/or other public places of the Town (collectively, the "Public Ways"). The purpose of this Agreement is to allow Franchisee's construction of a system of underground conduits, ducts, mains and pipes and such other underground facilities as well as any required overhead and above-ground apparatus, including but not limited to poles, posts, cable and wires, for which permits may be issued by the Town, (collectively referred to as the "Franchisee Facilities"), attached hereto as Exhibit A, as may hereafter be modified, and incorporated by reference, for the purpose of placing and maintaining there the Franchisee's wires, cables and appurtenances thereto used for providing telecommunications services, such wires, cables and appurtenance are also included in the term "Franchisee Facilities." Nothing herein shall be deemed to grant Franchisee any easement in, or right to access and use either private property or public property outside the jurisdiction of the Town, or to modify, alter, abridge or otherwise affect any such right Franchisee may have or in the future obtain. Section 2 Public Rights-of-Way Use Fee The Public Rights-of-Way Use Fee is set annually by the Virginia Department of Transportation ("VDOT"), pursuant to Va. Code Ann. § 56-468.1. Franchisee agrees to bill and collect from its customers and remit to the Town payments received of the Public Rights-of-Way Use Fee, if and when the Franchisee has access lines (as defined in Va. Code Ann. § 56- 468.1 (A)) within the Town. Franchisee further acknowledges and agrees to pay all applicable zoning, subdivision, site plan and comprehensive plan fees of general application. Franchisee agrees to comply with all other reasonable and generally applicable requirements imposed by VDOT and the Town in connection with the administration of the Public Rights-of-Way Use Fee, including all applicable reporting requirements and any and all reasonable requirements for permits, including any applicable fees therefor. If the Public Rights-of-Way Use Fee is eliminated, discontinued, preempted or otherwise is declared or becomes invalid, Franchisee and the Town shall negotiate in good faith to determine fair and reasonable compensation to the Town for use of the Public Ways by Franchisee for Telecommunications. DC01/EM MOE/142096.16 Section 3 Non-Discrimination Franchisee shall have rights, privileges and obligations with respect thereto no less favorable than those that are granted by the Town for the use of the Public Ways to any other licensee, franchisee or user of the Town's Public Ways. In addition, Town represents to Franchisee that the rights, privileges and obligations created by the Town relating to use of the Public Ways as well as the fees and charges payable by Franchisee to Town are applied on a nondiscriminatory basis to all telecommunications service providers using the Public Ways. If Town applies any term, condition, obligation, right, privilege or fee relating to the subject of this Agreement more favorably to any licensee, franchisee or user of the Town's Public Ways, Town agrees that Franchisee shall have the right to modify this Agreement to encompass said terms. Section 4 Location of Franchisee Facilities Ail Franchisee Facilities, under, above, or along streets, alleys, rights-of-way, and public places of the Town authorized by this Agreement to be placed and constructed, shall be located as shown on the Drawing, attached hereto as Exhibit A, as may have been or may hereafter be modified, and incorporated by reference. Prior to construction of Franchisee Facilities above, in and under Public Ways of the Town, Franchisee shall obtain approval of Franchisee's plans, showing the location of the proposed Franchisee Facilities from the Town, which shall not be unreasonably or discriminatorily conditioned, withheld, or delayed. Franchisee Facilities may be constructed overhead where utility poles exist and electric, cable, or telephone lines or a combination thereof are now overhead, but where no overhead poles exist, all Franchise Facilities shall be constructed underground. Any installation above ground where utility poles do not exist shall be considered as a special exception pursuant to Section 13-39 of the Town Code. When Franchisee's plans have been approved, the plans, and any subsequent modifications to them agreed to by the Town, shall be effective and binding to the same extent as if they were set out fully in this Agreement. Section 5 Relocation of Franchisee Facilities Whenever the Town requires all new and existing utility and cable facilities of all users of the Public Ways to be located or relocated underground, respectively, within a particular segment of the Town's Public Ways in order to protect the public safety and welfare, the Town may order, and Franchisee agrees, to relocate, at its own expense unless otherwise provided by general law of this Commonwealth or by the ordinance of the Town, within one hundred eighty (180) days of written notification from the Town, all of Franchisee Facilities which, in the reasonable discretion of the Town using recognized engineering standards, interfere, disturb or conflict with the operation, relocation, improvement, repair, construction or maintenance of present streets, alleys, rights-of-way, public grounds, storm drainage systems, sewer systems, water mains or other public facilities. Nothing in this Agreement shall be construed to require Franchisee to relocate any facilities other than Franchisee Facilities. Notwithstanding any other provision of law or this Agreement, where present overhead utility poles, electronic lines, and telephone lines are moved from overhead to underground placement, within a defined area of the Town, all Franchisee Facilities located above ground DC01/EM MOE/142096.16 2 within the affected area shall be similarly moved and located underground at the same time and the cost of the movement of the Franchisee Facilities shall be solely the obligation of the Franchisee. Franchisee shall relocate any of Franchisee Facilities subject to this Section using like construction to such places designated by the Town except as otherwise provided herein. The Town shall use reasonable good faith efforts to designate locations for any relocated facilities that will permit Franchisee to continue cost effectively and efficiently to serve its existing and future customers within the Town and beyond. Any Town permits needed as a result of a relocation request by the Town shall be provided automatically and at no cost to Franchisee. For any relocation of Franchisee Facilities undertaken by Franchisee apart from those addressed elsewhere in this Section 5 or this Agreement, all such Franchisee Facilities, if reasonably feasible and not detrimental, vis-~t-vis other carriers, shall be relocated underground. The Town shall reimburse Franchisee for any relocation under this Section 5 to the extent required by Va. Code Ann. § 56-468.2, and other applicable law. Nothing herein shall be construed to limit the authority of the Town to adopt an ordinance that will restrict the placement of overhead lines for all utilities using the Public Ways within a defined area of the Town. Section 6 Repairs If Franchisee, in the construction, operation, replacement, maintenance, removal or repair of Franchisee Facilities, damages any pavement, street, alley, sidewalk, sewer, water or other pipe or other public property belonging to the Town, Franchisee shall promptly repair the same at its own cost and expense. If Franchisee shall default in this obligation, the Town may cure such default and shall charge the reasonable costs of such work to the Franchisee in accordance with Town's then current, published, standard rates for such work. However, prior to performing any such work, the Town will give Franchisee written notice of the default and a period of thirty (30) days after receipt of such notice within which to cure the default. The Town shall extend the thirty (30) day period for a reasonable time if such default cannot reasonably be cured within such period and Franchisee has commenced and is diligently pursuing such cure. If Franchisee does not so cure the default, the Town will provide Franchisee with a written notice advising of the expiration of the cure period and stating the date (which date shall be no less than three (3) business days after Franchisee's receipt of such notices) on which the Town intends to commence the work on Franchisee's behalf. Notwithstanding the foregoing, if such default threatens the public safety and welfare, the Town shall make a reasonable effort to provide Franchisee with telephonic notice and an opportunity to immediately cure such default. If the Town is unable to reasonably provide such notice or Franchisee fails to immediately cure the default, the Town may commence the cure on Franchisee's behalf. In any event, the Town shall immediately thereafter provide Franchisee with written notice of Town's performance of such emergency work. DC0 I/EMMOE/142096.16 3 Franchisee may, from time to time, perform routine maintenance on Franchisee Facilities without prior approval by the Town. Routine maintenance shall include day-to-day monitoring of, general repairs to, or replacement of discrete portions of Franchisee Facilities that do not require disturbing the surface or the area below the Public Ways or require an additional permit from the Town. Except in an emergency or in the performance of routine maintenance, Franchisee shall obtain an excavation permit or other necessary approval, which shall not be unreasonably or discriminatorily conditioned, withheld or delayed, prior to commencing work on any street, alley, right-of-way, or public ground. Franchisee agrees to exercise reasonable judgment in order to avoid inconvenience to the general public or the Town. Franchisee shall not impede the flow of traffic to any greater extent than is reasonably necessary in performing any maintenance, removal, replacement, construction or repairs. Section 7 Indemnification Subject to the following, Franchisee shall indemnify the Town, its officers, officials and employees (for the purposes of this section only, collectively the "Town"), and shall hold the Town harmless from liability on account of injury, death or damage to persons or property arising solely out the construction, improvement, removal, maintenance, repair or operations of Franchisee Facilities within the boundaries of the Town. If a suit claiming such injury, death, or damage shall be brought or threatened against the Town, either independently or jointly with Franchisee, Franchisee will defend, indemnify and hold the Town harmless in any such suit, at the cost of Franchisee, provided that the Town promptly provides written notice of the commencement or threatened commencement of the action or proceeding involving a claim in respect of which the Town will seek indemnification hereunder. Franchisee shall be entitled to have sole control over the defense of such proceeding through counsel of its own choosing and over settlement of such claim provided that the Franchisee must obtain the prior written approval of the Town of any settlement of such claims against the Town, which approval shall not be delayed more than thirty (30) days. If, in such a suit, a final judgment is obtained against the Town, either independently or jointly with Franchisee, Franchisee will pay the judgment, including all reasonable costs, and will hold the Town harmless therefrom. The Town waives the applicability of these indemnification provisions in their entirety if it (a) elects to conduct its own defense against such claim, (b) fails to give prompt notice to Franchisee of any such claim such that Franchisee's ability to defend against such claim is compromised, (c) denies approval of a settlement of such claim for which Franchisee seeks approval, or (d) fails to approve or deny a settlement of such claim within thirty (30) days of the Franchisee seeking approval. These indemnity provisions shall not apply to claims for liability for damages arising out of bodily injury to persons or damage to property caused by or resulting from the negligence or intentional acts of the Town, its agents or employees. Section 8 Bond Prior to the Effective Date of this Agreement, Franchisee has deposited with the Town a Performance Bond made payable to the Town in the amount of one hundred thousand dollars ($100,000). The Performance Bond is to guarantee that the project is done in a proper manner without damage to the Public Ways. The bond shall be written by a corporate surety acceptable to the Town and authorized to do business in the Commonwealth of Virginia. Upon completion DC0 I/EMMOFdI42096.16 4 of construction of the Franchisee Facilities, Franchisee may reduce the Performance Bond to the amount of twenty-five thousand dollars ($25,000) and made payable to the Town, and the Performance Bond shall be maintained at this amount through the term of this Agreement. Section 9 Insurance Franchisee shall also maintain in force a comprehensive general liability policy in a form satisfactory to the Town Attorney, which at minimum must provide: (a) verification that an insurance policy has been issued to Franchisee by an insurance company licensed to do business in the State of Virginia, or a form of self insurance acceptable to the Town Attorney; (b) verification that Franchisee is insured against claims for personal injury, including death, as well as claims for property damage arising out of (i) the use and occupancy of the Public Ways by Franchisee, its agents, employees and permittees, and (ii) placement and use of Franchisee Facilities in the Public Ways, its officers, agents, employees and permittees, including, but not limited to, protection against liability arising from completed operations, damage of underground facilities and collapse of property; (c) verification that the Town Attorney will be notified thirty (30) days in advance of cancellation of the policy or material modification of a coverage term; (d) verification that comprehensive liability coverage, automobile liability coverage, workers compensation and umbrella coverage established by the Town Attorney in amounts sufficient to protect the Town and the public and to carry out the purposes and policies of this Agreement; and (e) verification that the policy has a combined single limit coverage of not less than two million dollars ($2,000,000). The policy shall include the Town as an additional insured party, and Franchisee shall provide the Town Attorney with a certificate of such coverage before beginning installation of any lines, cable or equipment. Franchisee shall also require similar indemnification and insurance coverage from any contractor working on its behalf in the Public Ways. Section 10 Renewal Prior to the expiration of this Agreement, the parties will make a good faith effort to negotiate and enter into a new Franchise Agreement upon reasonable and nondiscriminatory terms and conditions. DC0 I/EMMOE/142096.16 5 Upon a timely request to negotiate a new Franchise Agreement by Franchisee prior to the expiration of this Agreement, Franchisee shall be permitted to continue operations of the Franchisee Facilities within the Town under the terms of the Agreement after the expiration hereof until the Town acts. Nothing herein shall be construed to grant Franchisee a perpetual franchise interest. Section 11 Termination This Agreement may be terminated: (a) by Franchisee, at its election and without cause, by delivering written notice thereof to the Town at least sixty (60) days prior to the effective date of such termination; or (b) by either Franchisee or Town, if necessary and only to the extent to promote public safety and welfare, after written notice by one party to the other of the occurrence or existence of a default by the other party under this Agreement, and the defaulting party fails to cure, or commence good faith efforts to cure, such default within thirty (30) days after delivery of such notice. Franchisee shall remove all Franchisee Facilities from the streets, alleys and public places of the Town at the expense of Franchisee within six (6) months after the termination, abandonment, or expiration of this Agreement, or by such reasonable time to be prescribed by the Town Council, whichever is later. No such removal will be required while any negotiations to enter into a new Franchise Agreement as provided for in Section 10, are pending before the Town. If such negotiations do not lead to a new Franchise Agreement, the six (6) month period provided above shall commence on the date the Town gives notice that the Town will not enter into a new Franchise Agreement with the Franchisee or expiration, whichever is later. The Town reserves the right to waive this requirement, as provided for herein. The Town shall grant Franchisee access to the Public Ways in order to remove its Franchisee Facilities pursuant to this paragraph. Notwithstanding the foregoing, Franchisee Facilities may be abandoned without removal upon request by Franchisee and approval by the Town. This Section survives the expiration or termination of this Agreement. Section 12 Assignment and Transfer of Franchise This Franchise shall not be assigned or transferred without the expressed written approval of the Town, which shall not be unreasonably or discriminatorily conditioned, withheld or delayed. However, Franchisee may assign, transfer, or sublet its rights, without the consent of the Town, to any Affiliate of Franchisee, any person or entity that controls, is controlled by or is under common control with the Franchisee, any company or entity with which or into which Franchisee may merge or consolidate, to any lender of Franchisee or purchaser of substantially all of Franchisees assets, provided the Town is advised of the action. As part of any such assignment, transfer or sublet of rights, any successor(s) of Franchisee shall agree to be bound by DC01/EM MOF_./142096.16 6 all of the terms and conditions and shall be entitled to all rights of this Agreement and shall agree to be subject to all the provisions, obligations, stipulations and penalties here prescribed. In addition, the Town agrees, that nothing in the Agreement shall be construed to require Franchisee to obtain approval from the Town in order to lease or sell Franchisee Facilities, or any portion thereof, or grant an indefeasible right of use ("IRU") in Franchisee Facilities, or any portion thereof, to any entity or person. Section 13 Choice of Law This Agreement shall be subject to, and construed in accordance with the laws of the Commonwealth of Virginia, the ordinances, policies and regulations of Town, and the Communications Act of 1934, as amended. Section 14 Entire Agreement This Agreement, including all Exhibits, constitutes the entire Agreement between Franchisee and the Town with respects to the subject matter hereof and supersedes any prior discussions, agreements or understandings, whether verbal or written. No amendment or modification shall be valid unless made in writing and signed by Franchisee and the Town or unless provided for herein. Section 15 Severability The sections, paragraphs, sentences, clause 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 unlawful or invalid by a valid judgement or decree of a court of competent jurisdiction, such unconstitutionality, unlawfulness, or invalidity shall not affect any of the remaining phrases, clauses, sentences, paragraphs or sections of this Agreement. Section 16 Reservation of Rights Both the Town and Franchisee reserve and may seek any and all remedies available at equity or at law. Neither the Town nor Franchisee shall be deemed to have waived any rights or remedies at equity or at law by virtue of executing this Agreement. Any waiver of the Agreement or any of its provisions must be in writing. Further, if either party fails to enforce any right or remedy available under this Agreement, that failure shall not be construed as a waiver of any right or remedy with respect to any breach or failure by the other party. The Town reserves the right by ordinance or resolution to establish any reasonable regulations for the convenience, safety, health and protection of its inhabitants under its police powers, consistent with state and federal law. The rights herein granted are subject to the exercise of such police powers as the same now are or may hereafter be conferred upon the Town. Without limitation as to the generality of the foregoing the Town reserves the full scope of its power to require by ordinance substitution of underground service for overhead service, or DC01/EMMOE/142096.16 7 the transfer of overhead service from the front to the rear of property whenever reasonable in all areas in the Town and with such contributions or at such rates as may be allowed by law. Notwithstanding anything herein to the contrary, nothing herein shall be construed to extend, limit or otherwise modify the authority of the Town preserved under Sections 253 (b) and (c) of the Communications Act of 1934, as amended, and Title 56, Chapter 15, of the Code of Virginia. Nothing herein shall be construed to limit, modify, abridge or extend the rights of Franchisee under the Communications Act of 1934, as amended, or under the Code of Virginia. Section 17 Waiver Nothing herein shall be construed as a waiver of any rights, privileges or obligations of the Town or Franchisee nor constitute a waiver of any remedies available at equity or at law. Subject to the foregoing, any waiver of the Agreement or any of its provisions shall be effective and binding upon the Parties only if it is made in writing and duly signed by the Parties. If either party fails to enforce any right or remedy available under this Agreement, that failure shall not be construed as a waiver of any right or remedy with respect to any breach or failure by the other party. Section 18 Effective date This Agreement shall become effective on the date of Franchisee's written acceptance of this Franchise (the "Effective Date"). This Agreement shall be void if the Effective Date does not occur within one (1) year after the Town adopts an ordinance approving this Franchise, or if Franchisee does not obtain an initial permit for installation of Franchisee Facilities within one (1) year after the date of Town's adoption of the approving ordinance. Section 19 Notice Any notice given under this Agreement shall be mailed or delivered to the following addresses: Town Franchisee Town Manager 25 West Mark Street P.O. Box 88 Leesburg, VA 20178 Gregg T. Kamper Vice President, General Manager Dominion Telecom, Inc 701 Cary Street, 9th Floor Richmond, VA 23219 All correspondences shall be by registered mail, certified mail or regular mail with return receipt requested; and shall be deemed delivered when received or refused by the addressee. The parties may change addresses by like notice. DC01/EM MOE/142096.16 8 IN WITNESS WHEREOF, the parties have caused this Agreement to be signed by its proper officers this C~ ~ day of eP,: ~,,y,~...q, 2001. DOMINION TELECOM, INC By: Name: Title: ///~g~.2'~//7 ~--~7 ~'- Date of Acceptance: TOWN OF LEESBURG, VIRGINIA Name: /~.~. Attest: Clerk APPROVED AS'TO FORM, . Town Attorney DC0 I,/EM MOE/142096.16