october 8 2014 - chesapeake, virginia...october 8 2014 to mayor krasnoff ... the grantee to...

C esapeake City of ChesapeakeVIRGINIA

Office of the City Attorney306 Cedar Road

Chesapeake Virginia 23322757 3826586

Fax 757 3828749

October 8 2014

TO Mayor Krasnoff ViceMayor de Triquet and Members of the City Council

RE AN ORDINANCE GRANTING A FRANCHISE TO

DATED OCTOBER 14 2014 FOR THE TERM AND UPON THECONDITIONS HEREIN STATED TO OCCUPY AND USE THE STREETSALLEYS AND PUBLIC PLACES OF THE CITY OF CHESAPEAKE TO

INSTALL MAINTAIN UPGRADE REPAIR AND REMOVE POLESWIRES ELECTRICAL CONDUCTORS CONDUITS SUBWAYSMANHOLES FIXTURES APPLIANCES AND APPURTENANCES OF ATELECOMMUNICATIONS SYSTEM IN THE CORPORATE LIMITS OF

THE CITY OF CHESAPEAKE VIRGINIA

Please find enclosed a proposed telecommunications franchise ordinance which allowsthe grantee to establish operate and maintain telecommunications facilities on City streets Thefranchise will serve to promote higher quality communication services within the City ofChesapeake as well as encourage the deployment of advanced communication technology tobetter serve our residents and businesses

Pursuant to state law a franchise to use public streets in excess of five years cannot begranted until bids have been solicited by the governing body of the locality in which the streetsare located In addition a public hearing must be conducted at which time the bids will beopened and the franchise awarded to the highest responsible bidder

In order to meet these legal requirements a public notice soliciting bids has beenpublished in The VirginianPilot on October 5 and October 12 2014 All bids are to be readaloud at the public hearing on October 14 2014 Additional bids may be solicited prior toclosing of the bids After closing of the bids the City Council may award the bid to the highestresponsible bidder and adopt the franchise ordinance setting forth the terms and conditions of thefranchise

The proposed franchise route is 2714 miles as shown on the enclosed exhibit andincludes both above ground and underground fiber cable

The key features of the franchise ordinance are as follows

The term of the franchise is 20 years with one renewal option for an additional20 years and

The City of Chesapeake adheres to the principles of equal employment opportunityThis policy extends to all programs and services supported by the City

bpender

Text Box

DOCKET ITEM: NPPH-B

The franchise is non exclusive

The grantee will provide the City with a total of seven free access points alongwith language that allows the parties to mutually agree to additional free accesspoints These free access points allow the City to access the fiber at some pointin the future at which time the City can negotiate with grantee regarding thecost of using a portion of the fiber and signal for City purposes The seven 7free access points are as follows a Chesapeake Regional Airport b ClarenceV Cuffee Community Center c Animal Control Center d WVTCTelevision Station e Chesapeake Police Training Center f Chesapeake FireStation 2900 Benefit Road g Chesapeake Department of Human Services

The grantee will exercise reasonable efforts to protect the Citys streets andrightofway and

The City shall not be liable to the grantee for having to repair or relocate any ofits equipment which may become necessary to protect the public health safetyor welfare

The grantee is required to obtain necessary City permits

The City reserves the right to collect a Public RightofWay Use Fee as setforth in Section 564681 of the Code of Virginia 1950 as amended and

The City retains the authority to inspect and exercise oversight over granteesuse maintenance and operation of its facilities and its use of the Citys rightofway for compliance purposes and

The grantee is to secure maintain and provide proof of insurance coverage inthe minimum amount of One Million Dollars100000000and to indemnifythe City against losses and damages and

The grantee is to secure maintain and provide the City with a performance bondin the amount of One Hundred Thousand Dollars 10000000which may beincreased or reduced in the event that certain conditions warrant a change and

The City may terminate the franchise for a material breach and removegranteestelecommunications system facilities and equipment from the rightofway

Once this franchise has been awarded by the City Council the ordinance will be completedand the franchise will become effective thirty 30 days after adoption The Department ofInformation Technology supports the award of the franchise to the highest responsible bidder

2

Please advise if you have any questions or concerns in this regard

Very truly yours

PAJan L Proctor

City Attorney

JLPhvm

Enclosures

cc James E Baker City ManagerPeter Wallace Chief Information OfficerDolores Moore City ClerkAnna MDAntonio Assistant to the City Manager

3

AN ORDINANCE GRANTING A FRANCHISE TO

DATED OCTOBER 14 2014 FOR THE TERM AND UPON THE CONDITIONSHEREIN STATED TO OCCUPY AND USE THE STREETS ALLEYS AND PUBLICPLACES OF THE CITY OF CHESAPEAKE TO INSTALL MAINTAIN

UPGRADE REPAIR AND REMOVE POLES WIRES ELECTRICAL

CONDUCTORS CONDUITS SUBWAYS MANHOLES FIXTURESAPPLIANCES AND APPURTENANCES OF A TELECOMMUNICATIONS

SYSTEM IN THE CORPORATE LIMITS OF THE CITY OF CHESAPEAKEVIRGINIA

WHEREAS pursuant to Section 1522100 of the Code of Virginia 1950 as

amended the City has the authority to grant franchises and other authorizations for the use

and occupancy of the streets as hereinafter defined and

WHEREAS the Grantee desires to obtain a franchise to use and occupy the Citys

streets for the purpose of constructing maintaining and repairing its Telecommunications

System as hereinafter defined which is more particularly described as follows Grantees

poles wires electrical conductors conduits subways manholes fixtures appliances and

appurtenances Grantees Telecommunications System shall be placed in along about

over under and across Grantors public rightsofway as set forth on that certain Exhibit A

which is attached hereto and made a part hereof and as follows enter Chesapeake from

Norfolk on Berkley Avenue near Vellines Avenue proceed on Berkley Avenue aerially in an

easterly direction continue along Wingfield Avenue aerially and in a southerly direction

continue along Parkside Drive aerially in a westerly direction continue on Campostella

Road aerially in a northerly direction continue along Liberty Street aerially in a westerly

direction continue on Old Atlantic Avenue aerially in a southerly direction continue on

Atlantic Avenue aerially in a southerly direction continue on Campostella Road aerially in

a southwesterly direction continue on Burns Street aerially in a southerly direction cross ICity Attorneys OfficeCity of Chesapeake 464 north of I64 aerially in a southerly direction continue on Keats Street aerially inMunicipal Center306 Cedar Road

Chesapeake Virginia23322

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southerly direction continue on Campostella Road aerially in a southerly direction continue

on Shelly Street aerially in a southerly direction continue on Great Bridge Boulevard

aerially in a southerly direction cross I64 west of I464 aerially in a southerly direction

continue on Great Bridge Boulevard aerially in a southerly direction continue on Mains

Creek Road aerially in a westerly direction continue on Mullen Road aerially in a northerly

direction continue on Libertyville Road aerially in a westerly direction continue on

Bainbridge Boulevard aerially and underground in a southerly direction continue on

Dominion Boulevard underground in southwesterly direction continue along Moses Grandy

Trail underground in a westerly direction continue along Cedar Road underground and

aerially in a southwesterly direction continue along Grassfield Road aerially in a southerly

direction continue along West Road primarily aerially and also underground in southerly

direction continue along Benefit Road primarily aerially and also underground continue

along Douglas Road primarily underground and also aerially in a westerly direction and

continue along route US17 underground in a southerly direction exiting the City of

Chesapeake and

WHEREAS the City intends to exercise to the fullest extent permitted by

applicable law and in accordance with Sections 1522100 et seq of the Code of

Virginia its authority with respect to the regulation of the occupation and use of the

Streets in connection with the construction maintenance and repair of a

Telecommunications System

WHEREAS the City by notice published in The VirginianPilot on October 5

2014 and October 12 2014 solicited bids for the Franchise as hereinafter defined and

City Attorneys OfficeCity of ChesapeakeMunicipal Center306 Cedar Road


757 3826586 2Fax 757 382 8749

WHEREAS on October 14 2014 the City Council received and opened bids for

the Franchise and awarded said Franchise to

NOW THEREFORE BE IT ORDAINED by the Council of the City of

Chesapeake Virginia that

1 The Franchise is hereby awarded to for a

period of twenty years subject to the terms and conditions below

2 The terms of the Franchise as agreed to by the City and

are as follows

ARTICLE I

DEFINITIONS

1 Definitions

The following terms as used in this Ordinance have the following meanings with

all terms defined in this Article I in the singular to have the correlative meaning when

used in the plural and vice versa

a Abandonment means the permanent cessation of all uses of a

Telecommunications System

b Cable Services means cable services as defined in Section

6025 of the Communications Act of 1934 as amended by the Cable Communications

Policy Act of 1984 the Cable Television Consumer Protection and Competition Act of

1992 and the Telecommunications Act of 1996 and as may be further amended from time

to time the Cable Act In the event that cable services is no longer defined in the

City Attorneys Office Cable Act or the definition in the Cable Act otherwise becomes inapplicable CableCity of ChesapeakeMunicipal Center306 Cedar Road

Telecommunications Services shall mean cable services as defined in the Cable Act


757 3826586 3Fax 757 3828749

immediately prior to such term no longer being defined in the Cable Act or such definition

otherwise becoming inapplicable

c Certificated Provider means Certificated provider of

telecommunications service as that term is defined in Section 564681 of the Code of

Virginia 1950 as amended

d City means the City of Chesapeake Virginia and the grantor of

this Franchise

e Customer means any Person who uses the services of the

Grantee in the corporate limits of the City

f Effective Date means thirty 30 days from and after the

passage of this Ordinance

g Equipment means the poles wires electrical conductors

conduits subways manholes fixtures appliances and appurtenances that are owned

physically controlled or physically maintained by the Grantee in on over or under the

Streets to provide Telecommunications Services except such equipment used to provide

wireless telecommunication services

h FCC means the Federal Communications Commission

i Franchise has the meaning set forth in Section 2 of this

Ordinance

j Grantee means

k Ordinance means this Ordinance as amended modified

City Attorneys Office or supplemented from time to timeCity of ChesapeakeMunicipal Center306 1 Performance Bond has set forth in Section 37306 Cedar Road on as the meaningChesapeake Virginia23322

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Fax 757 3828749

of this Ordinance

m Person means an individual a corporation a partnership an

association a trust or any other entity or organization including a governmental or

political subdivision or an agency or instrumentality thereof

n PROW Use Fee means the Public RightsofWay Use Fee that

the City is authorized to impose to the extent applicable pursuant to Section 564681 of

the Code of Virginia 1950 as amended

o Streets means the streets alleys parks parkways public

grounds waters and other public places other than Structures of the City within the

corporate limits of the City as the same now exist or may be hereafter extended or altered

and any location thereon thereover or thereunder and any portion thereof for the

purposes of this Ordinance the airwaves above the streets used for broadcast cellular

mobile radio service satellite or other wireless services shall be excluded from the

requirements of this Ordinance

p Structures includes buildings signs fences tanks poles lines

fixtures equipment and appurtenances of the City

q Telecommunications means the transmission between or among

points specified by the user of information of the users choosing without change in the

form or content of the information as sent and received

r Telecommunications Services means the offering of

Telecommunications for a fee regardless of the facilities used The term

City Attorneys Office Telecommunications Services shall not include Cable Services

City of ChesapeakeMunicipal Center306 Cedar Road


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s Telecommunications System means the plant equipment real

property including interests in real property tangible and intangible personal property

cable wires optical fibers amplifier antenna and all other electronic devices equipment

and facilities of a telecommunications provider located in the public rightsofway

t Term has the meaning set forth in Section 3 of this Ordinance

ARTICLE II

GRANT OF AUTHORITY

2 Grant of Franchise The City grants to the Grantee a franchise the Franchise

to occupy and use the Citys Streets to install construct maintain upgrade repair and

remove Equipment of its Telecommunications System subject to the conditions of this

Ordinance The approved geographic location is further set forth in that certain Exhibit

A which is incorporated herein by reference and made a part of this Ordinance Grantee is

not authorized to sublicense or sublease to any Person the right to occupy or use the

Streets to install construct maintain upgrade repair or remove Equipment or any other

facilities for any purpose Notwithstanding the foregoing Grantee shall be permitted to

offer and provide lit and dark fiber transport services to its customers and end users

3 Term of Franchise The Franchise commences on the Effective Date and expires

twenty 20 years after the Effective Date unless the Franchise is renewed as provided in

Section 5 of this Ordinance or the Franchise is terminated as provided in Article X of this

Ordinance The period of time that the Franchise is in effect is referred to as the Term

4 Nonexclusive Franchise Nothing in the Ordinance affects the right of the City

City Attorneys Office to grant any Person a franchise to occupy and use the Streets to install constructCity of Chesapeake

306Municipal Center

maintain u rade re air and remove such Persons e ui ment poles wires electrical306 Cedar Road pg p q p p


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conductors conduits subways manholes fixtures appliances and appurtenances for the

purpose of providing Telecommunications Services or service or to engage in any other

activity in the Streets provided that the exercise of such right will not require any existing

grantees facilities to be unreasonably interfered with or relocated Nothing in this

Ordinance affects the right of the City to occupy and use the Streets to install construct

maintain operate upgrade repair and remove its equipment poles wires electrical

conductors conduits subways manholes fixtures appliances and appurtenances for the

purpose of providing Telecommunications Services or service or to engage in any other

activity in the Streets provided that the exercise of such right will not require any existing

grantees facilities to be unreasonably interfered with or relocated

5 Renewal Upon expiration of the initial twenty 20 year term this

Franchise shall renew for an additional twenty 20 year period upon written notice

provided from Grantee to the City of Grantees desire to extend the initial term and with

the Citys agreement to extend the initial term Such written notice from Grantee to the

City must be given at least ninety 90 days prior to the expiration of the initial term In

no event however shall the overall Term of this Franchise exceed forty 40 years which

is inclusive of any and all extensions If written notice is not provided prior to ninety 90

days of expiration of the Term then such failure to notify shall in no way be construed as

a renewal or extension of the Franchise under the terms hereunder

6 Public Works and Public Improvements Nothing in this Ordinance

abrogates the right of the City to perform any public works or improvements If Grantees

City Attorneys Office Equipment interferes with the construction maintenance repair or removal of the CitysCity of ChesapeakeMunicipalal Center306 public works or public improvements the Grantee at its own expense unless otherwise306 Cedar Road


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required by law and except for aesthetic purposes the benefit of a third party or the

benefit of the City to compete as a telecommunications provider shall upon ninety 90

days written notice protect alter or relocate Equipment as directed by the City In the

event such relocation shall be required Grantee shall be entitled to any state or federal funds

made available to the City in conjunction with the relocation or protection of work If the

Grantee refuses or neglects to so protect alter or relocate GranteesEquipment the City

may break through remove alter or relocate Equipment and the Grantee shall pay to the

City the reasonable costs incurred in connection with such breaking through removal

alteration or relocation as set forth in Section 667 of the Citys Code of Ordinances The

City and its officers employees agents attorneys consultants and independent

contractors shall not have any liability to the Grantee for any damage as a result of or in

connection with such public works or public improvements except as required by law

7 Street Closings Nothing in this Ordinance waives or releases the rights of the

City in and to the Streets If all or part of the Streets are eliminated discontinued closed

or demapped except for aesthetic purposes the benefit of a third party or the benefit of

the City to compete as a telecommunications provider the Franchise shall cease with

respect to such Streets upon the effective date of the final action of the City in connection

therewith

ARTICLE III

COMPENSATION AND OTHER PAYMENTS

8 CompensationPROW Use Fee Grantee represents and the City

City Attorneys Office acknowledges that Grantee is a certificated provider of telecommunications services asCity of ChesapeakeMunicipal Center

defined by Virginia law including as set forth in Section 564681 of the Code of306 Cedar Road


757 38265868

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Virginia 1950 as amended Grantee holds certificate numbers TT237 and T672a

Accordingly the City hereby reserves the right as authorized by state and federal law to

impose at any time on the Grantee a a PROW Use Fee in accordance with Section

564681G of the Code of Virginia 1950 as amended andor b any other fee or

payment as may be allowed by federal or state law for the occupation and use of the

streets The City reserves any right that it may have or acquire as may be authorized by a

change to existing federal and state law to upon thirty 30 days written notice to

Grantee impose a reasonable franchise fee for the use of the Streets The Grantee shall be

obligated to pay the PROW Use Fee andor any other lawful fee as applicable if charged

or enacted by the City The City shall provide the Grantee notice of the PROW Use Fee

as required by Section 564681J of the 1950 Code of Virginia as amended

Notwithstanding the foregoing the City agrees not to impose this right on Grantee as

long as Grantee maintains its corporate status as a Section 501c4 non profit

organization and is able to verify the same to the reasonable satisfaction of the City

9 No Credits or Deductions The compensation and other payments to be

made pursuant to this Article III a shall not be deemed to be in the nature of a tax and

b except as may be otherwise provided by Section 564681 of the Code of Virginia

1950 as amended to the extent applicable shall be in addition to any and all taxes or

other fees or charges that the Grantee shall be required to pay to the City or to any state or

federal agency or authority all of which shall be separate and distinct obligations of the

Grantee

City Attorneys Office 10 Interest on Late Payments For any payment that is the product of a locallyCity of ChesapeakeMunicipal Center

imposed fee and is required by this Ordinance which is not actually received in whole or306 Cedar Road


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in part by the City on or before the applicable date fixed in this Ordinance the Grantee

shall pay interest thereon from the due date to the date paid at a rate equal to the rate of

interest then charged by the City for late payments of real estate taxes Accordingly for

any delay or failure to remit a PROW Use Fee payment andor any other fee or payment

as may be authorized pursuant to federal or state law and thus as may required by this

Ordinance at Article III Paragraph 8 the Grantee shall pay interest thereon as defined

and governed by the applicable federal or state code section

11 Reservation of Rights No acceptance of any payment by the City shall be

construed as an accord and satisfaction that the amount paid is in fact the correct amount

nor shall such acceptance of any payment be construed as a release of any claim that the

City may have for further or additional sums payable under the provisions of this

Ordinance All amounts paid shall be subject to audit and recomputation by the City

provided that the City initiates any such audit within two 2 years of the date on which

the payment in question was made to the City is performed in accordance with Section 29

of this Franchise and is completed within a reasonable period Neither City nor Grantee

shall be deemed to have waived any rights provided by law by enactment of this Franchise

Ordinance or execution of a Franchise Agreement

12 Continuing Obligation and Holdover If the Grantee continues to use

Equipment in the Streets to provide Telecommunications Services after the Term then

the Grantee shall continue to comply with all applicable provisions of this Ordinance

including without limitation all compensation and other payment provisions of this

City Attorneys Office Ordinance throughout the period of such continued use provided that any suchCity of ChesapeakeMunicipal Center

continued use shall in no way be construed as a renewal or other extension of this306 Cedar Road


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Ordinance or the Franchise nor as a limitation on the remedies if any available to the

City as a result of such continued use after the Term

If this Ordinance terminates for any reason whatsoever and the Grantee fails to

cease using Equipment in the Streets to provide Telecommunication Service the City in

addition to all other remedies available to it under this Ordinance or by law shall be

entitled to receive all payments it is entitled to receive under this Ordinance including but

not limited to the compensation set forth in Section 8 of this Ordinance

ARTICLE IV

SERVICES

13 Quality All work involved in the installation maintenance upgrade repair

and removal of Equipment shall be performed in a safe thorough and reliable manner in

accordance with industry professional state and federal mandated standards and using

materials of good and durable quality If at any time it is determined by the City or any

other agency or authority of competent jurisdiction that any Equipment is harmful to the

health or safety of any Person or property then the Grantee shall at its own cost and

expense promptly correct all such conditions

14 Liability Limitation Neither the City nor its officials employees agents

attorneys consultants or independent contractors shall be responsible to

the Grantee for any liability as a result of or in connection with Section 13 above or the

protection breaking through movement removal alteration or relocation of any

Equipment by or on behalf of the Grantee or the City in connection with any emergency

related to the safety health and welfare of the public However nothing in this SectionCity Attorneys OfficeCity of ChesapeakeMunicipal Center306 Cedar Road


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shall waive any rights that the Grantee has against the City for the Citys gross negligence

or willful misconduct

15 New Grades or Lines If the grades or lines of any Street are changed

at any time during the Term except for aesthetic purposes the benefit of a third party or

the benefit of the City to compete as a telecommunications provider then the Grantee

shall at its own cost and expense and upon the request of the City protect or promptly

alter or relocate Equipment so as to conform with such new grades or lines

If the Grantee refuses or neglects to so protect alter or relocate

Equipment the City after providing reasonable notice and an opportunity to cure shall

have the right to break through remove alter or relocate such Equipment The City shall

reimburse the Grantee for the cost of alteration relocation removal or break through of

Equipment authorized by this Section 15 only to the extent required by applicable law To

the extent the City is not required by applicable law to reimburse Grantee Grantee shall

bear such cost without reimbursement of contribution by the City

16 Protection of Streets In connection with the installation maintenance

upgrade repair or removal of Equipment the Grantee shall at its own cost and expense

protect the Streets and any Structures thereon thereunder or thereover shall comply with

Chapter 66 of the Chesapeake City Code as amended and reasonable and feasible design

and other construction standards and policies promulgated by the City and shall obtain

the prior approval of the Citys Director of Development and Permits before altering the

Streets or any such Structures Such approval shall not be unreasonably withheld or

City Attorneys Office delayed Any alteration shall be made by the Grantee at its sole cost and expense in aCity of ChesapeakeMunicipal Center

manner rescribed by the City The Grantee shall be liable at its and expense to306 Cedar Road p y y s own cos an exp


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replace or repair within a reasonable time to the condition that existed prior to the

commencement of Grantees activities any Street or Structure thereon thereunder or

thereover that may become disturbed or damaged as a result of the Grantees activities

The Grantee shall warrant any such replacement or repair for one 1 year from the

completion of such work as determined by the City If Grantee does not commence such

replacement or repair after thirty 30 days written notice or within a time period as

agreed to by the parties the City or the owner of the affected Structure may make such

replacement or repair and the Grantee shall pay the cost of the same

17 No Obstruction Except in the case of an emergency involving public safety

in connection with the installation maintenance upgrade repair or removal of

Equipment the Grantee shall not obstruct the sidewalks streets subways railways rivers

or other traffic to from or within the corporate limits of the City without the prior

consent of the City Equipment of the Grantee in the Streets shall

be located so as to cause minimum interference with any use of the Streets and adjoining

property As soon as practicable the Grantee shall notify the City Manager of any

emergency necessitating an obstruction under this Section and as necessary to protect

the public safety Grantee shall coordinate its activities in responding to the emergency

with the City Manager or hisher designee

18 Underground Utilities The City reserves the right at any time to lawfully

require placement of Equipment underground in locations serving new subdivisions

within the City and Grantee shall comply with any such City requirement provided any

City Attorneys Office such requirement is applied in a nondiscriminatory manner Grantee shall place theCity of ChesapeakeMunicipal Center306 Cedar Road Equipment to be installed in the Citys public rightofway underground and suchChesapeake Virginia23322

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Equipment shall be installed in a protective conduit in accordance with the plans approved

by the City

19 Moving Equipment The Grantee shall upon five 5 days prior written

notice by the City or any Person holding a permit to move any Structure or within the

time that is reasonable under the circumstances temporarily move Equipment to permit

the moving of said Structure The Grantee may impose a reasonable charge on any Person

other than the City for any such movement of its Equipment and may require payment of

such charge prior to such movement

20 Safety Precautions The Grantee shall at its own cost and expense undertake

all necessary and appropriate efforts to prevent accidents at its work sites in at or on the

Streets including the placing and maintenance of proper guards fences barricades

watchmen and suitable and sufficient lighting

21 Moving Wires The City may at any time in case of fire disaster or other

emergency as determined by the City in its sole reasonable discretion cut or move

equipment in which event the City shall not incur any liability to the Grantee unless such

liability is due to the grossly negligent or willful acts of the City The City will make

every reasonable effort to consult with the Grantee prior to any such cutting or movement

of Equipment and Grantee shall be given the opportunity to perform such work itself

Absent the Citys gross negligence or willful misconduct all costs to repair or replace

such Equipment shall be borne by the Grantee

City AttorneysOfficeCity of ChesapeakeMunicipal Center306 Cedar Road


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ARTICLE V

PUBLIC SERVICES

22 Use of City Structures This Franchise does not grant to the Grantee use of

City owned Structures The terms and conditions of the Granteesuse of any City owned

Structure shall be set forth in a separate ordinance agreement lease or other document as

appropriate

ARTICLE VI

OVERSIGHT AND REGULATION

23 CitysRight of Oversight The City has the right to oversee regulate

and inspect the installation maintenance upgrade repair and removal of Equipment in the

Streets in accordance with the provisions of this Ordinance Chapter 66 of the Chesapeake

City Code as amended and applicable law The City shall have the right to adopt or issue

such lawful rules regulations orders or other directives governing the Granteesuse of the

Streets as it shall find necessary or appropriate pursuant to and in furtherance of the

purposes of this Ordinance including the right to regulate and direct the time manner and

placement of all above ground equipment located in the public rightofway as the City

deems necessary to avoid an unsafe condition inconvenience or a public nuisance and the

Grantee expressly agrees to comply with all such rules regulations orders or other

directives Any such designation shall not be for aesthetic purposes the benefit of a third

party or the benefit of the City to compete as a telecommunications provider No rule

regulation order or other directive issued pursuant to this Section 23 shall constitute an

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24 Permits The Grantee shall obtain all construction building or other

governmental or regulatory permits or approvals necessary before installing maintaining

upgrading repairing and removing Equipment Nothing in this Ordinance waives any of

the Citys ordinances or regulations or the Citys right to require the Grantee to secure

appropriate permits or approvals for use of the Streets Any fees that the City may charge

in strict accordance with Article III Paragraph 8 of this Franchise to the Grantee or its

Customers to issue permits or approvals shall not be offset against any compensation that

the Grantee may be required to pay to the City pursuant to Article III of this Ordinance

25 Reports At the reasonable request of the City the Grantee shall promptly

submit to the City such information as maintained in the ordinary course of business as

the City may request and as allowed by federal and state law regarding the Grantees

placement and location of equipment in the Streets and payments and collections made

by Grantee pursuant to this Ordinance

26 Books and Records Throughout the Term the Grantee shall maintain in the

City or make available at Granteeslocation in the City or as mutually agreed upon by the

City and Grantee within fifteen 15 business days after receipt of written request or

within the time that is reasonable under the circumstances though not to exceed thirty 30

days complete and accurate books of account and records or copies thereof of the

business ownership and operations of the Grantee with respect to Grantees installation

construction maintenance upgrade repair relocation and removing of the Equipment in

the Streets and with respect to the collection and remittance of the PROW Use Fee that

City Attorneys Office may be required under this Ordinance including without limitation books of account andCity of ChesapeakeMunicipal Center306 Cedar Road records as maintained in the ordinary course of business adequate to enable the GranteeChesapeake Virginia23322

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to demonstrate at all times throughout the Term that it is and has been in compliance

with each term and condition of this Ordinance and if applicable the terms of Section

564681 of the 1950 Code of Virginia as amended providing for a PROW Use Fee All

such documents that pertain to financial matters that may be the subject of an audit by the

City shall be retained by the Grantee for a minimum of three 3 years following

termination of this Ordinance

27 Right of Inspection The City and its designated representatives shall have

the right to inspect examine and audit during normal business hours and upon sixty 60

days notice to the Grantee all documents records and other information of the Grantee

required to be maintained under Section 26 of this Ordinance including but not limited to

the data submitted to the Virginia Department of Transportation or its successor to the

extent applicable under Section 564681Fof the Code of Virginia 1950 as amended

in connection with the calculation of the PROW Use Fee All such documents records

and other information shall be made available within the corporate limits of the City in

order to facilitate inspection examination or audit Further during normal business hours

and upon notice to the Grantee the City and its designated representatives may inspect

and examine Equipment within on over or under the Streets

28 Treatment of Proprietary Information Access by the City to the

documents records or other information covered by this Ordinance shall not be denied by

the Grantee on grounds that such documents records or information are alleged by the

Grantee to contain proprietary information provided that this requirement shall not be

City Attorneys Office deemed to constitute a waiver of the Grantees right to assert that the proprietaryCity of ChesapeakeMunicipal Center306 Cedar Road information contained in such documents records or other information should not be


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disclosed and to withhold such information upon the agreement of the City In order to

determine the validity of such assertion and withholding by the Grantee the City agrees

to review the alleged proprietary information at the Grantees premises subject to the

terms as reasonably determined by the parties and to limit access to the alleged

proprietary information to those individuals who require the information in the exercise

of the Citys rights under this Ordinance as reasonably determined by the parties If the

City Attorney concurs with the Grantees assertion regarding the proprietary nature of

such information the City will not disclose such information to any Person and will not

remove from the Grantees premises the proprietary portion of any document or other

tangible thing that contains such proprietary information If the City Attorney does not

concur with such assertion then the Grantee shall promptly provide such documents

including the alleged proprietary portion thereof to the City provided that the Grantee

shall not be required to provide the proprietary portion thereof if it promptly notifies the

City of its intentions to challenge the City Attorneysdecision or during the pendency of

any court challenge to such provision The labeling of documents records or other

information as proprietary shall be the sole responsibility of the Grantee

29 Compliance Audits The City may conduct compliance audits concerning

Grantees compliance with the terms and conditions of this Ordinance at any time during

the Term provided that the City gives the Grantee written notice sixty 60 days in

advance of the commencement of compliance audits and such audit has not taken place

within the previous twentyfour 24 months



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ARTICLE VII

LIABILITY AND INSURANCE

30 Insurance Specifications Throughout the Term the Grantee shall at its

own expense maintain a liability insurance policy or policies in a form reasonably

acceptable to the City demonstrating through a certificate of liability insurance that the

Grantee is maintaining the insurance requirements of this section Such policy or policies

shall be issued by companies duly licensed to do business in the Commonwealth of

Virginia and acceptable to the City Such companies must carry a rating by Best of not

less than A Such policy or policies shall insure a the Grantee and b the City and its

officials boards commissions council elected officials agents and employees against

each and every form of liability of the Grantee referred to in this Ordinance in the

minimum combined amount of one million dollars1000000 for bodily injury and

property damage and Workers Compensation insurance as required by Virginia law The

foregoing minimum limitation shall not prohibit the Grantee from obtaining a liability

insurance policy or policies in excess of such limitations provided that the City its

officials boards commissions council elected officials agents and employees shall be

named as additional insureds to the full extent of any limitation contained in any such

policy or policies obtained by the Grantee

31 Insurance Maintenance The liability insurance policies required in

Section 30 shall be maintained by the Grantee throughout the Term and such other period

of time during which the Grantee operates or is engaged in the removal of EquipmentCity Attorneys OfficeCity of Chesapeake Each such certificate of liability insurance shall contain the following endorsement It isMunicipal Center306 Cedar Road


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hereby understood and agreed that this policy may not be canceled nor the intention not to

renew be stated until ninety 90 days after receipt by the City by registered mail of a

written notice of such intent to cancel or not to renew Within sixty 60 days after

receipt by the City of said notice and in no event later than thirty 30 days prior to said

cancellation the Grantee shall obtain and furnish to the City replacement certificates of

insurance in a form reasonably acceptable to the City The Certificate of Insurance is

incorporated herein by reference and attached to this Ordinance as Exhibit B

32 Increased Insurance Coverage In the event of any changed circumstances

following the Effective Date the City after consulting with the Grantee may alter the

minimum face amount of the liability insurance policy or policies required in Section 30

33 Liability Not Limited The legal liability of the Grantee to the City and any

Person for any of the matters that are the subject of the liability insurance policies

required by Section 30 including without limitation the Grantees indemnification

obligations set forth in this Ordinance shall not be limited by such insurance policies nor

by the recovery of any amounts thereunder except to the extent necessary to avoid

duplicative recovery from or payment by the Grantee

34 Liability of Grantee The Grantee subject to Section 36 shall be

responsible for and shall indemnify defend and hold harmless the City from and against

any liability arising out of or in connection with the installation maintenance upgrade

repair or removal of Equipment The Grantee shall at its own cost and expense replace

repair or restore any damaged property to its prior condition and shall pay appropriate

City Attorneys Office compensation in the event of any injury to or death of any Person occasioned by anyCity of ChesapeakeMunicipal Center

negligent or willful act or negligent or willful failure to act of the Grantee or anyCedar Road Y officerChesapeake Virginia23322

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Fax 757 3828749

employee agent or subcontractor thereof in connection with the installation

maintenance upgrade repair or removal of Equipment located within on over or under

the Streets

35 Liability of City The City its officials employees agents and attorneys

shall not be responsible for any liability of the Grantee any affiliated Person or any other

Person arising out of or in connection with the installation maintenance upgrade repair

or removal of Equipment or the provision of Telecommunications Services through the

Equipment

The City and its officials employees agents and attorneys shall have no liability

to the Grantee any affiliated Person or any other Person for any special incidental

consequential or other damages as a result of the exercise of any right of the City pursuant

to this Ordinance or applicable law including without limitation the rights of the City to

approve or disapprove the grant termination amendment renewal or transfer of the

Franchise or to otherwise modify all of any part of this Ordinance or the Franchise

However nothing in this Section shall waive any of Grantees rights against the City for

the Citys gross negligence or willful misconduct

36 Indemnification of City The Grantee shall defend indemnify and hold

harmless the City its officials employees agents and attorneys from and against all

liabilities whether special incidental consequential and all other damages costs and

expenses including reasonable attorneys fees arising solely out of or in connection with

the award of this Franchise the installation maintenance upgrade repair or removal of

City Attorneys Office Equipment or the installation maintenance upgrade repair or removal of theCity of ChesapeakeMunicipal Center

telecommunications system except to the extent that such liabilities damages costs and306 Cedar Road


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expenses are caused by the Citys gross negligence or willful misconduct However in

exercising any right under this provision the City within a reasonable time period must

provide written notice of the commencement or threatened commencement of the action

or proceeding involving a claim in respect of which the City will seek indemnification

hereunder The Grantee shall be entitled to have sole control over the defense through

counsel of its own choosing and over settlement of such claim provided that the Grantee

must obtain the prior written approval of City of any settlement of such claims against the

City Should the City fail to approve or deny any such settlement within thirty 30 days

the failure to respond will be deemed an acceptance of the proposed settlement If in

such a suit a final judgment is obtained against the City either independently or jointly

with the Grantee the Grantee will pay the judgment including all reasonable costs and

will hold the City harmless therefrom

The City 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

reasonable notice to the Grantee of such claim such that the Grantees ability to defend

against such claim is compromised or c denies approval of a settlement of such claim

for which the Grantee seeks approval

ARTICLE VIII

PERFORMANCE BOND

37 General Requirement Prior to the Effective Date and prior to the

commencement of each new construction project hereunder Grantee shall furnish to the

City a performance bond referred to herein as Performance Bond made payable to theCity Attorneys OfficeCity of Chesapeake City in the amount of One Hundred Thousand Dollars 10000000 The PerformanceMunicipal Center306 Cedar Road


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Bond is incorporated herein by reference and attached to this Ordinance as Exhibit C

However in the event that the Grantee requests less than five 5 permits for each

calendar year then the amount of the Performance Bond shall be determined by the City

on a case by cases by basis and within the Citys sole discretion Each Performance Bond

is to guarantee that the project for which it is furnished is done in a proper manner without

damage to the Streets or other property of the City Each Performance Bond shall be

written by a corporate surety or bank reasonably acceptable to the City and authorized to

do business in the Commonwealth of Virginia Each Performance Bond shall remain in

place until ninety 90 business days after completion of the construction project for

which it is furnished

Each Performance Bond shall guarantee to the satisfaction of the City

a timely completion of construction

b construction in compliance with applicable plans permits technical codes

and standards

c proper location of the facilities as specified by the City

d restoration of the Streets or other property affected by the construction

e the submission of as built drawings after completion of the work and

f timely payment and satisfaction of all claims demands or liens for labor

material or services provided in connection with the work

38 Increased Amount At any time during the Term the City may

acting reasonably require the Grantee to increase the amount of any Performance

City Attorneys Office Bond if the City finds that new risk factors exist in accordance with Section 37 thatCity of ChesapeakeMunicipal Center306 Cedar Road reasonably necessitate an increase in the amount of such Performance Bond LikewiseChesapeake Virginia23322

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Fax 757 3828749

the City may decrease the amount of any performance bond if the historical performance

or other factors as determined by the City may warrant such a decrease Upon

completion of construction any such performance bond or letter of credit shall be

reduced to an amount of One Thousand Five Hundred Dollars150000 unless the

City in its reasonable discretion has reason to believe that increased risk factors exist

39 Not a Limit on Liability The obligation to perform and the liability of the

Grantee pursuant to this Ordinance shall not be limited by the acceptance of any

Performance Bond required by this Article VIII

40 Form Each Performance Bond shall contain the following endorsement It

is hereby understood and agreed that this bondletter of credit may not be canceled or

revoked

ARTICLE IX

TRANSFER RESTRICTIONS

41 Transfer of Franchise Neither the Franchise nor any rights or obligations of

the Grantee pursuant to this Ordinance nor any guaranty of the performance of the

Granteesobligations pursuant to this Ordinance shall be assigned sold or transferred in

any manner in whole or in part to any Person nor shall title therein either legal or

equitable or any right or interest therein pass to or vest in any Person without prior

written notice to the City of any such transfer

42 Permitted Encumbrances Nothing in this Article IX shall be deemed to

prohibit any assignment pledge lease sublease mortgage or other transfer of all or any

part of the Equipment or any right or interest therein However Grantee shall notify theCity Attorneys OfficeCity of Chesapeake City in writing at least sixty 60 days after a transfer of ownership or physical control ofMunicipal Center306 Cedar Road


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the Equipment for which approval of the State Corporation Commission is necessary

Any Person to whom ownership or physical control of the Equipment is transferred shall

be required to obtain a franchise from the City prior to providing any services through the

Equipment

ARTICLE X

TERMINATION

43 Termination Events The City at its option may terminate the

Ordinance upon any material breach of the Ordinance by the Grantee should the Grantee

fail to correct such breach within thirty 30 days after receiving written notice or within a

reasonable time as agreed to by the parties Should the Grantee make any legal challenge

to the Citys termination decision the City agrees to delay exercising its removal rights as

delineated in Section 47 until final resolution of such legal challenge A material breach

shall include but is not limited to the following

a any failure of the Grantee to maintain the insurance required by

Article VII of this Ordinance

b any failure of the Grantee to maintain any Performance Bond

required by Article VIII of this Ordinance

c any failure of the Grantee to comply with any material

provision of this Ordinance that is not cured within thirty 30 days after the

Grantee receives written notice from the City and

d any persistent failure of the Grantee to comply with any material

term condition or provision of this OrdinanceCity Attorneys OfficeCity of ChesapeakeMunicipal Center306 Cedar Road


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44 Voluntary Termination Upon sixty 60 days written notice the

Grantee may choose to terminate the Franchise upon expiration of the Term unless the

same be sooner voluntarily surrendered by the said Grantee or unless the same be sooner

forfeited as provided by federal or state law including this franchise

45 Rights Upon Termination In the event of any termination of this

Ordinance whether pursuant to this Article X or by the expiration of the Term the

Grantee may remove its facilities or request that the City allow the facilities to remain in

place If the Grantee makes a request to allow its facilities to remain in place the Grantee

must submit for the Citys approval a complete description of the facility and the date on

which Grantee intends to discontinue using the facility Notwithstanding Grantees

request that any such facility remain in place the City may require Grantee to remove the

facility from the Street or modify the facility to protect the public health welfare safety

and convenience or otherwise serve the public interest The City may require Grantee to

perform a combination of modification and removal of the facility Grantee shall

complete such removal or modification in accordance with a schedule set by the City

Until such time as Grantee removes or modifies the facility as directed by the City or

until the rights to and responsibility for the facility are accepted by another person having

authority to construct and maintain such facility Grantee shall be responsible for all

necessary repairs and relocations of the facility maintenance of the Street in the same

manner and degree as if the facility were in active use maintenance of insurance

requirements as provided in Section 31 and Grantee shall retain all liability for such

City Attorneys Office facility If Grantee abandons its facilities the City may choose to use such facilities asCity of ChesapeakeMunicipal Center

authorized by state or federal law306 Cedar Road


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46 Removal Upon Termination Upon the Grantees decision to

voluntarily remove any facility at the termination of this Ordinance or the Citys decision

not to allow any facility to remain in place at the termination of this Ordinance the

Grantee shall remove at the Grantees sole cost and expense all or any portion

designated by the City of the Equipment in the Streets in accordance with all applicable

requirements of the City and subject to the following

a in removing the Equipment in the Streets or part thereof the

Grantee shall refill and compact at its own cost and expense any excavation that

shall be made by it and shall leave in all material aspects all Streets and other

property in as good condition as that prevailing prior to the Grantees removal of

the Equipment from the Streets and without affecting altering or disturbing in any

way any utility facilities or electric or other cables wires Structures or

attachments

b the City shall have the right to inspect and approve the condition of

such Streets after removal and to the extent that the City determines that said

Streets and other property have not been left in materially as good condition as that

prevailing prior to the Grantees removal of the Equipment the Grantee shall be

liable to the City for the cost of restoring the Streets and other property to said

condition

c the Performance Bond liability insurance and indemnity provisions of

this Ordinance shall remain in full force and effect during the entire period of

City Attorneys Office removal and associated repair of all Streets and for not less than one hundredCity of ChesapeakeMunicipal Center

twenty 120 days thereafter and306 Cedar Road


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d removal shall be commenced within ninety 90 days of the removal

order by the City and shall be substantially completed within twelve 12 months

thereafter including all associated repair of the Streets

47 Failure to Commence Removal If in the reasonable judgment of the

City the Grantee fails to commence removal of the Equipment in the Streets within ninety

90 days after the Citys removal order or if the Grantee fails to substantially complete

such removal including all associated repair of the Streets within twelve 12 months

thereafter then to the extent not inconsistent with applicable law the City shall have the

right to authorize removal of the Equipment installed by the Grantee in the Streets at the

Granteescost and expense by another Person

ARTICLE XI

SUBSEQUENT ACTION

48 Procedures in Event of Subsequent Invalidity In the event that after the

Effective Date any court agency commission legislative body or other authority of

competent jurisdiction a declares this Ordinance invalid in whole or in part or b

requires the Grantee either to i perform any act that is inconsistent with any provision of

this Ordinance or ii cease performing any act required by any provision of this

Ordinance including any obligations with respect to compensation or other financial

obligations pursuant to this Ordinance or c alters the Citys jurisdiction or rights related

to this Franchise or similar franchises then either the City or the Grantee shall promptly

notify the other of such fact

Upon receipt of such notification the parties acting in good faith shall determineCity AttorneysOfficeCity of Chesapeake whether such declaration or requirement has a material and adverse effect on thisMunicipal Center306 Cedar Road


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Ordinance If the parties acting in good faith determine that such declaration or

requirement does not have a material and adverse effect on this Ordinance then the

Grantee shall comply with such declaration or requirement If the parties acting in good

faith determine that such declaration or requirement does have such an effect or that

compliance with such declaration or requirement by the Grantee would materially

frustrate or impede the ability of the Grantee to carry out its obligations pursuant to and

the purposes of this Ordinance then the Grantee and the City shall enter into good faith

negotiations to amend this Ordinance If the parties fail to produce an agreement which is

reasonably acceptable to both the City and the Grantee then the City or Grantee may

accelerate the expiration of the Term so that the Term shall expire on a date determined by

the City and Grantee not less than twelve 12 months after such determination

49 Enhanced City Authority To the extent that any statute rule regulation

ordinance or any other law is enacted adopted repealed amended modified changed or

interpreted in any way during the Term so as to enhance the Citys or Granteesability to

meet the telecommunications related needs and interests of the citizens the parties may

acting in good faith negotiate a modification to this Ordinance to reflect such enactment

adoption repeal amendment modification change or interpretation and the parties agree

to comply with any such modifications arising out of negotiations or any regulations If

the parties fail to reach an agreement the Term may be accelerated so that the term shall

end not less than twelve 12 months after the failure to reach an agreement



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ARTICLE XII

MISCELLANEOUS

50 Appendices The Appendices to this Ordinance attached hereto and all

portions thereof and exhibits thereto are except as otherwise specified in such

Appendices incorporated herein by reference and expressly made a part of this

Ordinance The procedures for approval of any subsequent amendment or modification to

said Appendices shall be the same as those applicable to any amendment or modification

hereof except as specified in such Appendices or elsewhere in this Ordinance

51 Action Taken by City Any action to be taken by the City pursuant

to this Ordinance shall be taken in accordance with the applicable rules and

procedures of the City as said rules and procedures may be amended or modified

throughout the Term

52 Entire Ordinance This Ordinance including all Appendices embodies

the entire understanding and agreement of the City and the Grantee with respect to the

subject matter hereof and merges and supersedes all prior representations agreements and

understandings whether oral or written between the City and Grantee with respect to the

subject matter hereof including without limitation all prior drafts of this Ordinance and

any Appendix to this Ordinance and any and all written or oral statements or

representations by any official employee agent attorney consultant or independent

contractor of the City or the Grantee

City Attorneys Office 53 Delays and Failures Beyond Control of Grantee Notwithstanding any otherCity of ChesapeakeMunicipal Center

provision of this Ordinance the Grantee shall not be liable for delay in performance of or306 Cedar Road


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failure to perform in whole or in part its obligations pursuant to this Ordinance due to

strike war or act of war whether an actual declaration of war is made or not

insurrection riot act of public enemy accident fire flood or other act of God technical

failure sabotage or other events where the Grantee has exercised all due care in the

prevention thereof to the extent that such causes or other events are beyond the control of

the Grantee and such delay in performance or failure to perform affects only part of the

Granteescapacity to perform the Grantee shall perform to the maximum extent it is able

to do so and shall take all steps within its power to correct such causes

The Grantee agrees that in correcting such causes it shall take all reasonable

steps to do so in as expeditious a manner as possible The Grantee shall notify the City in

writing of the occurrence of an event covered by this Section 53 within five 5 business

days or a reasonable time period under the circumstances of the date upon which the

Grantee learns of its occurrence

54 Notices All notices statements demands requests consents approvals

authorizations offers agreements appointments designations or other direction or

communication hereunder by any party to another shall be in writing and shall be

sufficiently given and served upon the other party immediately if delivered personally or

by telex or telecopy provided with respect to telex and telecopy that such transmissions

are received on a business day during normal business hours the first business day after

dispatch if sent by express mail and the second business day after dispatch if sent by first

class mail registered or certified return receipt requested postage prepaid and addressed

City Attorneys Office as follows



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CITY City AttorneyCity Hall Building306 Cedar Road

Chesapeake Virginia 23322

GRANTEE

With a copy to

55 Additional Representations and Warranties In addition to the

representations warranties and covenants of the Grantee to the City set forth elsewhere in

this Ordinance the Grantee represents and warrants to the City and covenants and agrees

which representations warranties covenants and agreements shall not be affected or

waived by any inspection or examination made by or on behalf of the City that as of the

Effective Date

a Organization Standing Power Authorization and Enforceability

The Grantee is a limited liability company duly organized validly existing and in good

standing under the laws of the State of New York and is duly authorized to do business in

the Commonwealth of Virginia and the City of Chesapeake The Grantee has all requisite

power and authority to execute deliver and perform this Ordinance and all otherCity Attorneys OfficeCity of Chesapeake agreements entered into or delivered in connection with or as contemplated herebyMunicipal Center306 Cedar Road


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The execution delivery and performance of this Ordinance and all other

agreements entered into in connection with the transactions contemplated hereby have

been duly legally and validly authorized by all necessary action on the part of the Grantee

and its Guarantors and this Ordinance and all other agreements entered into in

connection with the transactions contemplated hereby have been duly executed and

delivered by the Grantee and constitute or upon execution and delivery will constitute

the valid and binding obligations of the Grantee and are enforceable or

upon execution and delivery will be enforceable in accordance with their respective

terms

b Consent No consent approval or authorization of or declaration of filing

with any public governmental or other authority including without limitation the FCC

or any other federal agency or any state country or municipal agency authority

commission or council and if applicable public utility commissions telephone

companies and other entities on the part of the Grantee is required for the valid execution

and delivery of this Ordinance or any other agreement or instrument executed or delivered

in connection herewith

c No Coercion Full Disclosure The Grantee enters into this Ordinance

willingly and without coercion undue influence or duress Grantee has reviewed each

and every obligation imposed upon it pursuant to this Ordinance or otherwise in

connection with the Franchise In addition the Grantee has not entered into this

Ordinance with the intent to act contrary to the lawful provisions herein and the Grantee

City Attorneys Office represents and warrants that so long as it affects or owns or controls Equipment withinCity of ChesapeakeMunicipal Center306 Cedar Road


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on under or over the Streets it will be bound by the lawful terms and conditions of this

Ordinance

d Fees The Grantee has paid all franchise license or advertising costs that

have become due to the City pursuant to any franchise or permit and has made adequate

provisions for any such fees and charges that have accrued

e Licenses and Permits The Grantee will secure prior to commencing

construction activities all necessary permits and licenses in connection with the

installation maintenance upgrade repair and removal of Equipment within on over or

under the Streets

56 Additional Covenants Until the termination of this Ordinance and

the satisfaction in full by the Grantee of its obligations under this Ordinance in

consideration of the Franchise the Grantee and its Guarantorsas applicable agree that

they will comply with the following affirmative covenants unless the City otherwise

consents in writing

a Compliance with Laws Licenses and Permits The Grantee shall

comply with all lawful local laws and all rules regulations orders or other

directives of the City issued pursuant to this Ordinance or with respect to the Citys

management of its Streets The Grantee shall have the sole responsibility for

obtaining all permits licenses and other forms of approval or authorization

necessary to install maintain upgrade repair and remove Equipment within on

over and under the Streets



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b Condition of Equipment All Equipment in the Streets will be

maintained in good repair and proper working order and condition throughout the

Term

57 Binding Effect This Ordinance shall be binding upon and inure to the

benefit of the City and the Grantee and their respective successors permitted transferees

and assigns

58 No Waiver Cumulative Remedies No failure on the part of the City to

exercise and no delay in exercising any right hereunder shall operate as a waiver

thereof nor shall any single or partial exercise of any such right preclude any other right

all subject to the conditions and limitations established in this Ordinance The rights and

remedies provided herein are cumulative and not exclusive of any remedies provided by

law and nothing contained in this Ordinance shall impair any of the rights of the City

under applicable law A waiver of any right or remedy by the City at any one time shall

not affect the exercise of such right or remedy or any other right or other remedy by the

City at any other time In order for any waiver of the City to be effective it must be in

writing

59 Headings Other Terms The headings contained in this Ordinance are to

facilitate reference only do not form a part of this Ordinance and shall not in any way

affect the construction or interpretation hereof Terms such as hereby herein hereof

hereinafter hereunder and hereto refer to this Ordinance as a whole and not to the

particular sentence or paragraph where they appear unless the context otherwise requires

City Attorneys Office The term may is permissive the terms shall and will are mandatory not merelyCity of ChesapeakeMunicipal Center306 Cedar Road directive All references to any gender shall be deemed to include all others as the contextChesapeake Virginia23322

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may require Terms used in the plural include the singular and vice versa unless the

context otherwise requires

60 No Agency The Grantee shall conduct the work to be performed pursuant

to this Ordinance as an independent contractor and not as an agent of the City

61 Survival All representations and warranties contained in this Ordinance

shall survive the Term The Grantee acknowledges that certain of the obligations to be

performed under this Ordinance are to be performed after the Franchise terminates or

expires

62 Delegation of City Rights The City reserves the right to delegate and

redelegate from time to time any of its rights or obligations under this Ordinance to any

body organization or official Upon such delegation or redelegation references to City

in this Ordinance shall refer to the body organization or official to whom such delegation

or redelegation has been made Any such delegation by the City shall be effective upon

written notice by the City to the Grantee of such delegation

Upon receipt of such notice by the Grantee the Grantee shall be bound by all terms

and conditions of the delegation not in conflict with this Ordinance Any such delegation

revocation or redelegation no matter how often made shall not be deemed an amendment

to this Ordinance or require any consent of the Grantee

63 Claims Under Ordinance The City and the Grantee on its behalf and on

behalf of its Guarantorsagree that any and all claims asserted by or against the City

arising under this Ordinance or related thereto shall be heard and determined either in a

City Attorneys Office court of the United States District Court for the Eastern District of Virginia located inCity of ChesapeakeMunicipal Center

Norfolk Virginia or in the Chesapeake Circuit Court located in the City of Chesapeake306 Cedar Road


757 3826586 36Fax 757 3828749

Virginia Notwithstanding the foregoing for any claim that the FCC has preemptory

authority such claim will remain under the jurisdiction of the FCC This Franchise

including all terms and conditions contained herein shall be governed interpreted and

enforced in accordance with the laws of the Commonwealth of Virginia without regard to

the conflicts of law principles thereof

64 Modifications Except as otherwise provided in this Ordinance any

Appendix to this Ordinance or applicable law no provision of this Ordinance nor any

Appendix to this Ordinance shall be amended or otherwise modified in whole or in part

except by an instrument in writing duly executed by the City and the Grantee which

amendment shall be authorized on behalf of the City through the adoption of an

appropriate ordinance resolution or order by the City as required by applicable law

65 Reservation of Rights The City reserves the right to adopt or issue such

lawful rules regulations orders or other directives governing the Grantees use of the

Streets as it shall find necessary or appropriate in the exercise of its police power and

such other orders as the City shall find necessary or appropriate pursuant to and in

furtherance of the purposes of this Ordinance and the Grantee expressly agrees to

comply with all such lawful rules regulations orders or other directives If any such

exercise of right materially alters any of the terms or conditions of this agreement the

parties may acting in good faith negotiate such change No rule regulation order or

other directive issued pursuant to this Section shall constitute an amendment to this

Ordinance

City Attorneys Office 66 Free Access Points Grantee agrees to install at no cost to Grantor or theCity of Chesapeake

Cedar306 Road Chesapeake Regional Airport certain access points to Grantees TelecommunicationsChesapeake Virginia23322

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System as identified in subparagraphs a through h below Chesapeake Regional

Airports access point is identified in subparagraph a only Such access points are

intended to provide the Grantor and the Chesapeake Regional Airport the ability to obtain

services from Grantee subject to mutually agreeable rates terms and conditions

a Chesapeake Regional Airport West Road Grantee agrees to

provide one access point to Grantor along West Road near the Chesapeake Regional

Airport or in a location as mutually agreed to by the parties which shall be near the

closest public and private demarcation and

b Clarence V Cuffee Community Center 2019 Windy Road Grantee

agrees to provide one access point to Grantor along 2019 Windy Road or in a location as

mutually agreed to by the parties which shall be near the closest public and private

demarcation and

c Animal Control Center 2100 S Military Highway Grantee

agrees to provide one access point to Grantor along 2100 S Military Highway or in a

location as mutually agreed to by the parties which shall be near the closest public and

private demarcation and

d WCTV Television Station 1617 Cedar Road Grantee agrees

to provide one access point to Grantor along 1617 Cedar Road or in a location as mutually

agreed to by the parties which shall be near the closest public and private demarcation

and



757 382658638

Fax 757 3828749

e Chesapeake Police Training Center 1080 Sentry Drive

Grantee agrees to provide one access point to Grantor along 1080 Sentry Drive or in a



f Chesapeake Fire Station 2900 Benefit Road Grantee agrees

to provide one access point to Grantor along 2900 Benefit Road or in a location as

mutually agreed to by the parties which shall be near the closest public and private

demarcation and

g Chesapeake Department of Human Services 100 Outlaw Street

Grantee agrees to provide one access point to Grantor along 100 Outlaw Street or in a



h The parties may by an amendment hereto as evidenced in a written

instrument and signed by their respective authorized signatories add additional access

points in other designated areas

ADOPTED by the Council of the City of Chesapeake Virginia this 14 day of

October 2014APPROVED

MayorATTEST

City AttorneysOfficeCity of Chesapeake Clerk of the CouncilMunicipal Center306 Cedar Road


757 3826586 39Fax 757 3828749

The terms and conditions of this Franchise are agreed to by Grantee

Name Date

Title



757 3826586 40Fax 757 3828749

EXHIBIT A

GEOGRAPHICAL SURVEY OF AUTHORIZED LOCATION



757 3826586 41Fax 757 3828749

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757 382658642Fax 757 3828749

EXHIBIT C

PERFORMANCE BOND



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october 8 2014 - chesapeake, virginia...october 8 2014 to mayor krasnoff ... the grantee to...

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