HomeMy Public PortalAbout2016_02_23_R023 License Agreement with Centurylink Communications The Town of
Leesburg, PRESENTED February 23,2016
RION
1rgZE NO. 2016-023 ADOPTED February 23, 2016
A RESOLUTION: AUTHORIZING THE TOWN MANAGER TO EXECUTE A LICENSE
AGREEMENT BETWEEN THE TOWN OF LEESBURG AND
CENTURYLINK COMMUNICATIONS, LLC, FOR
TELECOMMUNICATIONS FACILITIES IN TOWN RIGHT-OF-WAY
WHEREAS, CenturyLink Communications, LLC, seeks to use the Town's Right-of-Way
for telecommunication purposes; and
WHEREAS, CenturyLink Communications, LLC, 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 data center
community;
WHEREAS, CenturyLink Communications, LLC, 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 CenturyLink Communications, LLC,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, CenturyLink Communications, LLC,has approved the License Agreement
and all fees will be borne by CenturyLink; and
LICENSE AGREEMENT
FOR TELECOMMUNICATIONS FACILITIES PASSING THROUGH
THE TOWN OF LEESBURG, VIRGINIA
THIS LICENSE AGREEMENT,made and entered into this day of
, 2016,by and between CENTURYLINK COMMUNICATIONS,LLC (the
"Provider"), a company authorized to do business in the Commonwealth of Virginia and having
a principal place of business at 100 CenturyLink Drive. Monroe,LA 71203,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
CENTURYLINK COMMUNICATIONS, LLC
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
ight-ofWay 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 an irrevocable,unconditional
letter of credit and/or surety bond equal to 10%of the anticipated construction costs of the
Provider's Facilities in the Rights-of-Way or public owned property or such other amount
determined by the Town. Upon completion of construction, and thereafter until the Provider's
facilities have been removed from the Rights-of-Way or public owned property,and for one
hundred twenty(120)days thereafter,(unless the Town notifies the Provider that a reasonably
longer period shall apply), Provider shall deposit with the Town and maintain an irrevocable,
unconditional letter of credit or a bond in an amount reasonably determined by the Town. The
construction bond and removal bond shall serve as security for:
1. The faithful performance by the Provider of all terms,conditions and obligations
including the restoration of the Rights-of-Way or public owned property of this
License;
2. Any expenditure, damage, or loss incurred by the Town occasioned by the Provider's
breach of this License or its failure to comply with all rules,regulations,orders,
permits and other directives of the Town;
3. Payment of all compensation due to the Town,including Permit and Application
Fees;
License Agreement
CENTURYLINK COMMUNICATIONS, LLC
Page 3
4. The payment of premiums for the liability insurance required pursuant to this
License.
D. Compensation. The Provider shall pay to the Town for the usage of the public right-of-way
for telecommunications facilities the following amounts, reflecting a charge of$0.46 per foot for
—120 feet of access:
First Year $55.20
Second Year $55.20
Third Year $55.20
Fourth Year $55.20
Fifth Year $55.20
The annual fee shall be due to the Town within 45 days after the effective date of this License,
and upon each anniversary of that date.
E. Communications Right of Way Use License Review and Inspection 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.
License Agreement
CENTURYLINK COMMUNICATIONS,LLC
Page 4
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
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 estimate as to the length of time required to perform the work,
and such other information as the Town may need 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 Provider.
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
License Agreement
CENTURYLINK COMMUNICATIONS, LLC
Page 5
Agreement or enacted thereafter, affecting the installation,maintenance and use of
the Facilities, including any necessary Federal Aviation Administration("FAA")
approval for land located within the Town's airport,if applicable.
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.
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. This provision also shall apply to instances where
Provider has not obtained necessary FAA approval. 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.
License Agreement
CENTURYLINK COMMUNICATIONS,LLC
Page 6
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
To Provider:
CenturyLink Communications, LLC
100 CenturyLink Drive
Monroe, LA 71203
ATTN: Gary Pace
In addition to the foregoing,the Provider will provide the name and contact person and
an emergency telephone number for maintenance of the Facilities.
0. 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.
License Agreement
CENTURYLINK COMMUNICATIONS, LLC
Page 7
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.
CenturyLink Communications,LLC
By4
Name Gary ,Face
Mar,National Contract Admin&ROW
Title
Date elZs0(�
THE TOWN OF LEESBURG
By
Kaj . Dentler
Town Manager
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CERTIFICATE OF LIABILITY INSURANCE DATE IMMIDDIYYYYI02/052016
T111S CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS
CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES
BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED
REPRESENTATIVE OR PRODUCER,AND THE CERTIFICATE HOLDER.
IMPORTANT: if the certificate holder Is an ADDITIONAL INSURED,the policy(les)must be endorsed. If SUBROGATION IS WAIVED,subject to
the teams and conditions of the policy,certain policies may require an endorsement. A statement on this certificate does not confer rights to the
certificate holder In lieu of such endorsement(s).
CONTACT
PRODUCE USANAME,
Marsh PHONE I FAX
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130151h Averse,Suite 1900 E-MAIL
SeMee,WA 98101.2882 ADDRESS:
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J13913-CTL-GAWUW-15.18 INSURER A_Cleenwich insurance Company 22322
INSURED INSURER a:XL Specialty Insurance Co. 37885
Cekidingk u,Inc.end a8 subsidiaries, NSM American Eike insurance 29700
Including but not limited b:Qwest Communicalbns INSURER c: Company
Intematarel Inc.;Sawis,Inc.;and Embarq Corporation INSURER D:
100 CenIui 4 his Drive;Mailstop 5TS154 .".._
Moose,LA 71203 INSURER a:
_INSURER F:
COVERAGES CERTIFICATE NUMBER: SEA-002851769.30 REVISION NUMBER:16
THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD
INDICATED. NOTWITHSTANDING ANY REQUIREMENT,TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS
CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS,
EXCLUSIONS AND CONDITIONS OF SUCH POLICIES.LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS.
I`TR TYPE OP INSURANCE AWL
POLICY NUMBER IMMMVDDDMYSUBR POLICY YY IMMNW EXP
LIMITS
A X COMMERCIAL GENERAL LIABILITY X RGD500033303 09/01/2015 09/01/2016 EACH occuRRENGE $ 3,000,000
DAMAGE TO RENTED
CL IMS-MADEn OCCUR PREMISES(Ea occurrence) $ _...._...3,
MED EXP(Any are person) ,$ 10,000
�___._...... PERSONALaADV INJURY $ 3,001�
GR'It AGGREGATE LIMIT APPLIES PER: GENERAL AGGREGATE $ 15,000,000
—X1 POLICY LOC PRODUCTS-CAMPOOP AGG $ 15,000,000
OTHER: $
A AUTOMOBILE unsure RAD500033403 09/0112015 09/01/2016 COMBINED LIMIT $ 2,000,000
X ANY A To Auto Physical Damage-Self Insured BODILY INJURY(Per person) $
X ALL OVIND)AUT — AUTOS
BODILYU$AEY(Per aoddent) $
AUTPROPERTY DAMAGE
X ISM TOS X NON OS-OWNED $
$
C X UMBRELLA LAB X OCCUR UMB000800503 09/012015 09/012015 EACH OCCURRENCE $ 1,000,000
EXCESS LIAR CLAIMS-MADE AGGREGATE $ 1,000,000
DEB X RETENTION$25,000 $
B WORKERS COMPENSATION RWD500032903 AOS 09/012015 09/01/2016 X I PAT E OT
EMPLOYERS*AND EMPLOYERS*LIABILITY
ANY PROPRETORIPARTNERIEXECUTIVE YN N N!A E.L.EACH ACCIDENT $ 1,000,009
oFFICERAEMBER EXCLUDED? 1,000,000
b E.L -EA EMPLOYEE $
IgifIDNslicdb.OF OPERATIONS below El DISEASE-POLICY UMIT $ 1,000,000
B XS Workers'Compensation/EL RWE500033103 WA 09/012015 09/012016 Breese of 1,000,000 SIR $1,000,000
B XS Workers Compensation/EL RWE500033203 OH 09/012015 09/012016 Excess of 1,000,000 SIR $1,000,000
DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES (ACORD 101,Additions!Remarks Schedule,may be attached If mon space Is required)
Town of Leesburg is included as Additional Insured as respects their Interest In the operations of the Named Insured as required by written contract regarding General Ute.
CERTIFICATE HOLDER CANCELLATION
Town of Leesburg SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE
Department of Public Works&Capital Projects THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN
25 Wes)Irlarket Street ACCORDANCE WITH THE POLICY PROVISIONS.
Leesburg,VA 20176
AUTHORIZED REPRESENTATIVE
of Marsh USA Inc.
I Cheryl)L.Koch eA.A4- GL ...
Yrj mak_
401988-2014 ACORD CORPORATION. All rights reserved.
ACORD 25(2014/01) The ACORD name and logo are registered marks of ACORD
-2-
A RESOLUTION: AUTHORIZING THE TOWN MANAGER TO EXECUTE A LICENSE
AGREEMENT BETWEEN THE TOWN OF LEESBURG AND
CENTURYLINK COMUNICATIONS LLC, 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 CenturyLink
Communications, LLC, for telecommunications facilities to pass through the Town so long as
approved by the Town Attorney.
PASSED this 23rd day of February, 2016.
paw
David S. Butler,Mayor
Town of Leesburg
A ES '
/71
Clerk of Councip
P:\Resolutions\2016\0223 License Agreement with Century Link Communications.doc