HomeMy Public PortalAbout2015_09_22_R101 Authorizing the TM to Execute a License Agreement with NOVEC for Telecommunications Facilities in ROW The Town of
Leesburg,
Virginia
PRESENTED September 22,2015
RESOLUTION NO. 2015-101 ADOPTED September 22,2015
A RESOLUTION: AUTHORIZING THE TOWN MANAGER TO EXECUTE A LICENSE
AGREEMENT BETWEEN THE TOWN OF LEESBURG AND NOVEC
SOLUTIONS, INC., FOR TELECOMMUNICATIONS FACILITIES IN
TOWN RIGHT-OF-WAY
WHEREAS,NOVEC Solutions, Inc., seeks to use the Town's Right-of-Way for
telecommunication purposes; and
WHEREAS,NOVEC Solutions, Inc., seeks to install, operate and maintain a fiber optic
cable system that will use public streets within the Town; and
WHEREAS,the purpose is to provide support to Loudoun County's Emergency
Communications network with such network providing support to the Town;
WHEREAS,the NOVEC Solutions, Inc., acknowledges that the primary use of the Town's
Rights-of-Way is for street purposes,and that the construction and operation shall not adversely
affect such property's primary use for street purposes; and
WHEREAS,a License Agreement is necessary to allow installation,operation and
maintenance of the fiber optic cable system; and
WHEREAS, the Town Attorney has negotiated a License Agreement between the Town
and NOVEC Solutions, Inc.,to install operate and maintain the fiber optic cable system; and
WHEREAS,the term of the License Agreement will run for five (5)years,with an
automatic renewal for a like period; and
WHEREAS,NOVEC Solutions, Inc., has approved the License Agreement and all fees
will be borne by NOVEC; and
LICENSE AGREEMENT
FOR TELECOMMUNICATIONS FACILITIES PASSING THROUGH
THE TOWN OF LEESBURG,VIRGINIA
THIS LICENSE AGREEMENT, made and entered into this 3rd day of September,
2015, by and between NOVEC SOLUTIONS, INC. (the "Provider"), a company authorized to
do business in the Commonwealth of Virginia and having a principal place of business at 10323
Lomond Drive, Manassas, Virginia 20109, and the TOWN OF LEESBURG, VIRGINIA, a
municipal corporation ("Town"),(the Provider and the Town being collectively referred to as the
"Parties").
WITNESSETH
WHEREAS, the Provider, licensed to do business in the Commonwealth of Virginia, has
requested that the Town authorize the Provider to use Town Rights-of-Way and public owned
property for telecommunications purposes and to install, operate and maintain a fiber optic cable
system(the "Facilities")that will use the public streets within the Town to a certain extent; and
WHEREAS, the general location and description of the telecommunications facilities to
be installed within the Town's Rights-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, the Provider 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 the Provider to use certain Town Rights-of-
Way and public owned property subject to the terms and conditions set forth herein.
NOW, THEREFORE, the Town and Provider, for and in consideration of the mutual
promises and covenants hereinafter contained, hereby agree and the Town hereby grants unto the
Provider 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 the Provider as provided herein in a safe manner satisfactory to the Town.
The rights and privileges herein granted to the Provider 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 the Provider permission to use such rights as are herein provided.
License Agreement
NOVEC SOLUTIONS, INC.
Page 2
B. Term/Termination. Unless terminated in accordance with the provisions herein,
the term of the Agreement shall be five (5) years from the date hereof. The Agreement will
automatically renew for a like period unless either party provides twelve (12) months' notice of
non-renewal.
Should the Provider abandon or remove the Facilities without an intention to resume use
thereof for 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 one hundred twenty (120)
days' notice in the event the Town determines, in the exercise of its reasonable good faith
judgment, that 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. In such an event, the
Town agrees to cooperate with the Provider to attempt to find other suitable space in the public
Rights-of-Way of the Town for placement of the Facilities. The Provider agrees, in such cases to
relocate its Facilities at its own expense unless otherwise provided by applicable law of the
Commonwealth of Virginia and/or by an ordinance of the Town.
Termination of this Agreement shall not relieve or release the Provider or the Town from
any liability or obligation, which may have been incurred or assumed by the Provider or the
Town hereunder prior to termination.
C. Right-of-Way Application and Permit. The Provider shall pay the Town a Right-of-
Way Permit Application fee at the time it files its plans with the Town. The Right-of Way
Permit Application fee paid pursuant to Sec. 30-2 of the Town Code shall be in addition to the
other fees required hereunder. Additionally, prior to the commencement of any construction, the
Provider, if required by the Town, shall deposit with the Town a Permit Fee equal to $0.46/linear
foot per foot per year, currently estimated to be 2,161 linear feet.
D. Right-of-Way Use Fee. The Right-of-Way Use Fee ordinarily collected by the Town
pursuant to Section 56-468.1 of the Code of Virginia is not applicable because NOVEC
Solutions is not a "Provider of Telecommunications Service" or a "Provider of Local
Telecommunications Service" as defined by Va. Code § 56-468.1. It does not offer access lines
that are connected to the public switched telephone network, or any kind of voice
communications, nor is it a cable operator.
In lieu of the aforementioned fee, and to compensate the Town for the inconvenience
caused by the construction of the facilities,the Provider will provide the following to the Town:
1. Provider will grant the Town exclusive use of twelve (12) strands of fiber along
Wirt Street between Royal Street and West Market Street as part of the fiber optic
route being deployed under this agreement.
2. Provider will place a minimum 100 ft. slack coil at Dominion Pole#JH31 located
at the intersection of Wirt Street and Royal Street and at Dominion Pole#JI76
located at the intersection of Wirt Street and West Market Street.
License Agreement
NOVEC SOLUTIONS, INC.
Page 3
3. The Town will be responsible for the installation of its own conduit and fiber
optic cable to the specified Provider slack coil locations listed above. At each
slack coil location,the Provider will be responsible for all splicing(of the NS
backbone)to the Town fiber optic cable at cost upon the request of the Town,and
billed to the Town for said service.
E. License Agreement Fee. The Provider shall pay to the Town prior to the Town's
execution of this License Agreement, a License Agreement Fee of Five Thousand Dollars
($5,000.00) which shall compensate the Town to evaluate the route, and coordinate with other
provides and other agencies, the route,plans and plats submitted by the Provider.
F. Construction Plans and Specifications. Construction of the Facilities shall be
performed in accordance with the approved construction plans approved in connection with the
right-of-way permit.
G. Confining Construction Activity. During construction, Provider and its contractors
and subcontractors shall confine all construction activity, including access and storage, within
the applicable areas specified on the approved Plans.
The Provider hereby agrees that the roadway and/or vehicular traffic shall not be
hindered significantly or disturbed during installation, maintenance or operation of the Facilities.
Prior to construction or repair, other than "Routine Maintenance" as defined below, the Provider
shall notify the Town, obtain a Right-of-Way Application and Permit, and, if necessary, proper
traffic controls approved by the Town shall be installed. Except in an emergency, the Provider
shall notify all residents affected by proposed work prior to the commencement of such work by:
1. Mailing written notice of the Provider's intent to commence work in the area to each
address affected by the proposed work;or
2. Hanging door placards on the doors of all affected residences and businesses at least
seven(7) days prior to commencement of such work and posting additional notices in
conspicuous places in the area of the proposed work as required to provide reasonable
notice to affected residences and business of the proposed work.
The Provider shall perform the work authorized in such Permit in accordance with all
requirements of the Town Code, and any subsequent ordinances or regulations currently in force
or that may be adopted by the Town regarding excavation work.
H. Excavation. Provider shall not make or begin any excavation or other subsurface
activity within the subject Rights-of-Way without first 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.
I. 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
License Agreement
NOVEC SOLUTIONS, INC.
Page 4
Agreement. Such inspections shall be performed in a timely manner so as not to delay the
installation of the Facilities.
J. 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, Provider 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 estimated as to the length of time required to perform the
work, and such other information as the Town may need to order to evaluate the proposed
maintenance or operation activity.
Provider shall confine all such extensive maintenance and operation activities, including
access and storage, within the applicable areas specified in the approved maintenance and
operation plans.
K. Restoration. Provider 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
Provider performing such maintenance activities, and shall be restored to the reasonable
satisfaction of the Town.
L. General Responsibilities of Licensee.
1. Compliance with Applicable Laws and Regulations. Provider 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. Provider 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 to real and/or tangible personal property caused by the acts or
omissions of Provider, its officers, agent or employees, including the cost of actual reasonable
attorney's fees and other costs. Notwithstanding the provisions of this clause, Provider 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 the Provider has no control, or acts of the Town, its
authorized officers, agents, and employees. The Town shall not be liable for damage to the
Facilities caused by future road improvements except where the damage to the Facilities is
caused by the negligence, gross negligence, or willful misconduct of the Town.
License Agreement
NOVEC SOLUTIONS, INC.
Page 5
3. Disclaimer of Consequential Damages. Notwithstanding any other provision of this
Agreement, in no event shall either party be liable for consequential, incidental, punitive,
exemplary, or similar damages under this Agreement.
4. Relocation of Facilities. Whenever the Town shall determine that it is necessary in
connection with the repair, relocation, or improvement of the public Rights-of-Way, the Town
may require by written notification that any properties or facilities of the Provider be removed or
relocated. Within thirty (30) days after receipt of notification, unless the Town extends such
period for good cause shown, or because of its reliance on traffic control infrastructure installed
by Provider that must be relocated, the Town will extend the relocation time to a sufficient
degree that continuity of services to the Town can be assured, the Provider shall remove or
relocate its facilities to such place and under such terms and conditions as specified by the Town.
The Provider shall bear all expenses associated with the removal and relocation except that the
Town will issue, without charge to the Provider, whatever local permits are required for the
relocation of the Provider's facilities. If the Provider does not complete its removal or relocation
within thirty(30) days or such other period as authorized by the Town, the Town may take such
actions as necessary to effect such removal or relocation at the Provider's expense. Further, the
Provider will be responsible for any additional costs and expenses incurred by the Town as a
result of the Provider's failure to remove or relocate its facilities in a timely manner.
M. Insurance. Provider shall maintain general liability insurance in the amount of Two
Million Dollars ($2,000,000) 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.
N. 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 Public Works& Capital Projects
The Town of Leesburg
25 W. Market Street
Leesburg, Virginia 20176
With a copy to:
Town Manager
Town of Leesburg
25 W. Market Street
Leesburg, VA 20176
License Agreement
NOVEC SOLUTIONS, INC.
Page 6
To Provider:
Michael J. Dailey, President
NOVEC Solutions
P.O. Box 2710
Manassas, VA 20108-0875
With a copy to:
Patrick A. Toulme, Vice President and Senior Corporate Counsel
Northern Virginia Electric Cooperative
P.O. Box 2710
Manassas, VA 20108-0875
In addition to the foregoing, the Provider will provide the name and contact person and
an emergency telephone number for maintenance of the Facilities.
O. 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 Rights-of-Way.
P. Assignment. No assignment of this Agreement or any rights hereunder shall be
made without the prior written consent of the Town. However,the Town shall not unreasonably
delay, condition, or refuse its consent to any such assignment by the Provider, upon written
request by the Provider.
Q. Entire License. This License Agreement (and the Exhibits) embodies the entire
agreement between the Town and the Provider. 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 provision herein is invalid it shall be considered deleted and shall not invalidate
the remaining provisions. The Provider shall not expand or extend its Facilities without approval
from the Town Transportation Engineer and a written amendment to this License signed by the
Town Manager and authorized agent of the Provider.
R. 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 first written above.
NOVEC Solutions, Inc.
1
License Agreement
NOVEC SOLUTIONS, INC.
Page 7
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Town Manager
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A RESOLUTION: AUTHORIZING THE TOWN MANAGER TO EXECUTE A LICENSE
AGREEMENT BETWEEN THE TOWN OF LEESBURG AND NOVEC
SOLUTIONS, INC., FOR TELECOMMUNICATIONS FACILITIES IN
TOWN RIGHT-OF-WAY
WHEREAS,the terms contained in the License Agreement are reasonable and equitable
and will benefit the Town.
THEREFORE, RESOLVED by the Council of the Town of Leesburg in Virginia that the
Town Manager is authorized to execute the License Agreement with NOVEC Solutions, Inc., for
telecommunications facilities to pass through the Town so long as approved by the Town Attorney.
PASSED this 22nd day of September, 2015.
\M-7—
s en C. mstattd,Mayor
`; Town of Leesburg
A E.T (7)ji, l
Clerk of Coun'+r
P:\Resolutions\2015\0922 License Agreement for NOVEC Telecommunications Facilities in Town ROW.doc