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