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HomeMy Public PortalAbout2004_08_10_r133 Approving a License Agreement for OnFiber Carrier ServicesThe Town of Leesburg, Virginia PRESENTED August 10, 2004 RESOLUTION NO. 2 0 06- ]. 3 3 ADOPTED August 10, 2004 A RESOLUTION: APPROVING A LICENSE AGREEMENT FOR ONFIBER CARRIER SERVICES-VIRGINIA, INC. WHEREAS, Council desires to approve a license agreement to permit OnFiber Carrier Services- Virginia, Inc. to extend a fiber optic cable through the town; and WHEREAS, staff recommends approval. THEREFORE, RESOLVED by the Council of the Town of Leesburg in Virginia as follows: The Town Manager is authorized to approve a license agreement substantially in the form attached hereto to permit OnFiber Carrier Services-Virginia, Inc. to extend a fiber optic cable through the town, subject to approval of the final form of the agreement, possibly including an addendum to provide the town access to the cable, by the Director of Information Technology and the Town Attorney. PASSED this 10t~ day of August 2004. A,TfEST: ?erl~ of Council R04:OnFiber License Agreement.doc LICENSE AGREEMENT TillS LICENSE AGREEMENT, made this __.day of ,2004, by and between the TOWN OF LEESBURG, VIRGINIA, a municipal corporation ("Town"), and ONFIBER CARRIER SERVICES-VIRGINIA, INC., a Virginia corporation ("OnFiber"). WITNESSETH WHEREAS, OnFiber, certificated by the Virginia State Corporation Commission, desires to extend it telecommunications network through the Town by installing a fiber optic cable system that will use the public streets within the Town to a certain extent; and WHEREAS, the general location and description of the facilities to be installed within the Town's fights-of-way (the "Facilities") shall be in accordance with certain drawings approved by the Town and attached hereto as Exhibit A (the "Route Map"); and WHEREAS, OnFiber acknowledges that the primary use of the Town's rights-of-way is for street purposes 'and that the construction and operation of the Facilities shall not adversely affect such property's primary use for street purposes; and WHEREAS, the Town is willing to allow OnFiber to use the subject rights-of-way on the terms and conditions set forth herein. NOW, THERFORE, the Town and OnFiber, for and in consideration of the sum of Ten Dollars ($10.00), the receipt and sufficiency of which is hereby acknowledged, and in consideration of the mutual covenants hereinafter contained, hereby agree and the Town hereby grants unto OnFiber for the term and upon the conditions, covenants and agreements hereinafter set forth, permission to use the subject rights-of-way for the purpose of installing, operating, and maintaining the Facilities. A. Conditions. The Facilities shall be, at all times, maintained, Operated and repaired by OnFiber as provided herein in a safe manner satisfactory to the Town. The rights or privileges herein granted to OnFiber shall be subject to the rights or interests held by others, if any, in and to the subject rights-of-way as of the date of this Agreement. The Town makes no representations or warranties, express or implied concerning the extent of such rights held by others and shall have no responsibility for conflicts with others as a result of this Agreement. The Town makes no warranties with respect to the subject rights- of-way but gives OnFiber permission to use such rights as are herein provided. B. Term. Unless terminated in accordance with the provisions herein, the term of the Agreement shall be five (5) years from the date hereof. Should OnFiber abandon or remove the Facilities without an intention to resume use thereof within a six (6) month period of time, this Agreement shall terminate forthwith at the election of the Town. The Town may unilaterally terminate the Agreement upon ten (10) days notice in the event the Town determines the maintenance and/or operation of the Facilities and the continuation of such License shall adversely affect the health, safety, and welfare of the Town. Termination of this Agreement shall not relieve or release OnFiber or the Town from any liability.or obligation, which may have been incurred or assumed by OnFiber, or the Town hereunder prior to termination. OnFiber hereby agrees that the roadway and vehicular traffic shall not be significantly hindered or disturbed during installation, maintenance or operation of the Facilities. Prior to construction or repair other than "Routine Maintenance" as def'med below, OnFiber shall notify the Town, obtain a right-of-way permit, and, if necessary, proper traffic controls approved by the Town shall be installed. C. Right-of-Way Use Fee. OnFiber shall pay to the Town the right-of-way use fee in accordance with Section 56-468.1 of the Code of Virginia. D. Construction Plans and Specifications. Construction of the Facilities shall be performed in accordance with the approved construction plans approved in connection with the fight-of-way permit. E. Confining Construction Activity. During construction, OnFiber and its contractors and subcontractors shall confine all construction activity, including access and storage, within the applicable areas specified on the approved Plans. F. Excavation. OnFiber shall not make or begin any excavation or other subsurface activity within the subject rights-of-way without fn'st obtaining a right-of-way permit and information concerning the possible location of any underground facility from each and every public utility, municipal corporation, or other person having the right to bury underground facilities. G. Inspection of Construction. The construction of the Facilities is subject to the Town's inspection at all places and all reasonable times to ensure strict compliance with the terms of this Agreement. Such inspections shall be performed in a timely manner so as not to delay the installation of the Facilities. H. Maintenance and Operation. Routine maintenance shall be defined as any work which can be accomplished utilizing mechanical equipment and/or vehicles operated from a location which is entirely behind the back of curb and in such a manner as to not encroach into the traffic lanes or disrupt traffic flow. Prior to commencement of any maintenance that is more extensive than routine maintenance, OnFiber shall submit a proposed maintenance plan and schedule to the Town for approval. The plan and schedule, at a minimum, shall provide a description of work to be performed, a description of equipment, vehicles, work techniques and methods to be used in connection with the maintenance or operation activity, a schedule of when maintenance or operation work will occur with an estimate as to the length of time required to perform the work, and such other information as the Town may need in order to evaluate the proposed maintenance or operation activity. OnFiber shall conf'me all such extensive maintenance and operation activities, including access and storage, within the applicable areas specified in the approved maintenance and operation plans. The Town may impose upon OnFiber reasonable charges and bonding (over and above any other payments required under this Agreement) to cover its costs of reviewing, approving, administering, overseeing, and inspecting the maintenance activity, and to ensure the safety and well being of the public. I. Restoration. OnFiber shall, as soon as practicable after the completion of any extensive maintenance activities, restore all areas disturbed during such activities. These areas shall be restored in kind to a condition substantially the same as that which existed prior to OnFiber's performing such maintenance activities, and shall be restored to the satisfaction of the Town. J. General Responsibilities of Licensee. 1. Compliance with Applicable Laws and Regulations. OnFiber shall construct, operate, and maintain its facilities and improvements in accordance with all applicable federal, state, county and Town laws, orders, rules and regulations existing on the date of this Agreement or enacted thereafter, affecting the installation, maintenance and use of the Facilities. 2. Indemnification. OnFiber agrees to indemnify and hold the Town, its officers, agents, and employees, harmless from and against all claims, losses, expenses, or suits for injuries, death, or damages caused by the acts of OnFiber, its officers, agent or employees including the cost of actual reasonable attorney's fees and other costs. Notwithstanding the provisions of this clause, OnFiber shall not be liable for nor shall it indemnify the Town for property damage or personal injuries caused by the acts of any third parties over which OnFiber has no control, or acts of the Town, its officers, agents, and employees. The Town shall not be liable for damage to the Facilities caused by furore road improvements. K. Insurance. OnFiber shall maintain general liability insurance in the amount of One Million Dollars ($1,000,000) and shall provide to the Town simultaneously with the execution hereof, a certificate of insurance for such policy, which shall name the Town as an additional insured thereon. 3 L. Notices. Notices under the Agreement shall be deemed to be properly served if delivered in person or in writing by certified mail, with return receipt requested, to the following addresses or such other places as the parties reasonably designate: To the Town: Director of Engineering and Public Works The Town of Leesburg P.O. Box 88 Leesburg, Virginia 20178 With a copy to: Town Manager The Town of Leesburg P.O. Box 88 Leesburg, Virginia 20178 To Licensee: OnFiber Carrier Services - Virginia, Inc. 11921 N. Mopac Expressway, Suite 100 Austin, Texas 78759 Attention: Contracts Manager With a copy to: OnFiber Communications, Inc. 7887 E. Belleview Ave., Suite 820 Englewood, Colorado 80111 Attention: General Counsel In addition to the foregoing, OnFiber will provide to the Town the name of a contact person and an emergency telephone number for maintenance of the Facilities. M. No Waiver. Nothing contained in the Agreement shall be deemed to waive the requirement of the various codes, regulations, resolutions, and statutes regarding permits, fees to be paid, or manner of construction, operation, or maintenance, including without limitation, the Town's right-of-way permit requirements to work within the right-of-way. N. Assignment. No assignment of this Agreement or any rights hereunder shall be made without the prior written consent of the Town. O. Entire License. This Agreement (and the Exhibits) embodies the entire agreement between the Town and OnFiber. It is not to be modified or terminated except as provided herein or by any written agreements signed by the authorized representatives of both parties. If any 4 provision herein is invalid it shall be considered deleted and shall not invalidate the remaining provisions. Time shall be of the essence in the performance of all obligations of the Town and OnFiber under this Agreement. P. Applicable Law. The parties agree that this License Agreement will be governed by the laws of the Commonwealth of Virginia and shall be binding upon the parties and their respective successors and/or assigns. IN WITNESS WHEREOF, the parties hereto have executed this License Agreement as of the date and year fa'st written above. ONFIBER CARRIER SERVICES- VIRGINIA, INC. By Title Date THE TOWN OF LEESBURG By Title Date VDOT ROW and Limited access ROW or private easement Town Of: Leesburg ROW end ~ur~c~ct~.