County Manager: ##### County Attorney: ***** Staff: Jack Belcher, Department of Technology Services, Marc McCauley, Arlington Economic Development, Loan Hoang, Department of Management and Finance ARLINGTON COUNTY, VIRGINIA County Board Agenda Item Meeting of February 21, 2015 DATE: February 6, 2015 SUBJECT: Adoption of a Policy Statement Regarding ConnectArlington as an Economic Development Tool; Approval of Standard Form Dark Fiber License Agreement for Implementation of ConnectArlington; Approval of a Schedule of Rates and Fees and Related Authorizations concerning ConnectArlington. C. M. RECOMMENDATION: 1. Adopt the attached Policy Statement Regarding ConnectArlington as an Economic Development Tool. (Exhibit A). 2. Approve the attached Standard Form Dark Fiber License Agreement for use by others of ConnectArlington dark fiber. (Exhibit B). 3. Authorize the County Manager to Execute the Standard Form Agreement(s) and related documents on behalf of the County Board, subject to approval as to form of each Agreement by the County Attorney. 4. Approve the attached Schedule of Rates and Fees. (Exhibit C) 5. Authorize the County Manager to promulgate Administrative Regulations to implement the ConnectArlington program consistent with the County Board’s Policy Statement and the Standard Form Agreement. ISSUES: None identified. SUMMARY: ConnectArlington fiber is presently used for government purposes such as the Intelligent Transportation System (ITS), Public Safety Radio Ring, and for connection of County and School facilities. The County plans to make available to others, through License Agreements, for economic development purposes, “dark fiber” that is part of the County’s ConnectArlington network and is not currently needed by the County. The phrase “dark fiber” means fiber optic cable that is not lighted by lasers or other electronic equipment. Once 21.
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County Manager: #####
County Attorney: ***** Staff: Jack Belcher, Department of Technology Services, Marc McCauley, Arlington Economic Development, Loan Hoang, Department of Management and Finance
ARLINGTON COUNTY, VIRGINIA
County Board Agenda Item Meeting of February 21, 2015
DATE: February 6, 2015 SUBJECT: Adoption of a Policy Statement Regarding ConnectArlington as an Economic Development Tool; Approval of Standard Form Dark Fiber License Agreement for Implementation of ConnectArlington; Approval of a Schedule of Rates and Fees and Related Authorizations concerning ConnectArlington. C. M. RECOMMENDATION:
1. Adopt the attached Policy Statement Regarding ConnectArlington as an Economic Development Tool. (Exhibit A).
2. Approve the attached Standard Form Dark Fiber License Agreement for use by others of ConnectArlington dark fiber. (Exhibit B).
3. Authorize the County Manager to Execute the Standard Form Agreement(s) and related documents on behalf of the County Board, subject to approval as to form of each Agreement by the County Attorney.
4. Approve the attached Schedule of Rates and Fees. (Exhibit C)
5. Authorize the County Manager to promulgate Administrative Regulations to implement the ConnectArlington program consistent with the County Board’s Policy Statement and the Standard Form Agreement.
ISSUES: None identified.
SUMMARY: ConnectArlington fiber is presently used for government purposes such as the Intelligent Transportation System (ITS), Public Safety Radio Ring, and for connection of County and School facilities. The County plans to make available to others, through License Agreements, for economic development purposes, “dark fiber” that is part of the County’s ConnectArlington network and is not currently needed by the County. The phrase “dark fiber” means fiber optic cable that is not lighted by lasers or other electronic equipment. Once
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electronics are applied, the fiber is able to transmit signals and the dark fiber becomes “lit” or “lighted.”
The fiber available for licensing will be installed as a “middle mile” in conduit located in County rights of way. This “middle mile” fiber is not currently fully installed and will be completely installed by the Fall of this year. This “middle mile” infrastructure is located between fiber provided by “first mile” operators and “last mile” users. “First mile” fiber allows connections from the “middle mile” to other destinations, whether within, Arlington, or elsewhere broadband services are provided. “Last mile” connections are links from the “middle mile” to the Licensee’s desired destination. Under the terms of a standard form License Agreement, Licensees must ensure that last mile users are located in Arlington. Availability of the middle mile dark fiber may increase availability of robust broadband services. In so doing, this will help distinguish Arlington as a “connected community” that will benefit the economic and fiscal health of Arlington’s commercial sector. The County’s role and responsibility for the middle mile will be to own and maintain the physical network. The County will provide physical security, manage the assignment of dark fiber optic strands to Licensees, and oversee the interconnections between Licensees and the middle mile. It will be the responsibility of the Licensee to provide for the interconnection with ConnectArlington, and to ensure the security of, and maintain service which the Licensee may agree to provide to first and last mile customers. The terms, fees and use requirements are specified in the attached License Agreement presented for consideration and approval by the Board. Localities, including the County, are prohibited from being involved in the promotion or marketing of a Licensee as a provider of services.
BACKGROUND: One impetus for the initial construction of ConnectArlington was the looming expiration of the cable franchise agreement with Comcast. Through this agreement the County (and the Arlington Public Schools) receive free unrestricted use of a fiber optic “institutional” network which has provided basic network services such as email, data file exchange, in-house developed video productions, and intra-County telephone service. Comcast announced to the County its intention to no longer offer access to the institutional network in an unlimited and free manner as part of any future cable franchise renewal agreement and therefor in 2010, the County Board approved construction of the first phase of ConnectArlington. Upon completion, the first phase will provide a County-owned network that is independent from commercially provided telecommunications services.
To build the network, the County leveraged a number of related initiatives. Specifically, • ITS (Intelligent Transportation Systems).1 • Public Safety Radio Ring.2
1A three phased project funded by Federal Grants and general obligation bonds. The project will replace the copper wire connected traffic signals with fiber optics to allow enhanced traffic management. Phases I and II have been completed. Phase III funding was approved by the County Board in December 2014. 2Funded with bonds, this project uses underground fiber for transmission of public safety emergency dispatch in response to 911 calls. The underground communications replaced microwave transmission that was disrupted by
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• Power upgrades undertaken by Dominion Virginia Power (DVP).3 • Site Plan approvals 4
Where possible, four two-inch diameter conduits were placed a minimum of three feet underground in the urban corridors of Arlington County. Two of the conduits were equipped with dedicated fiber optic cable to support ITS, the Public Safety Radio Ring, and necessary telecommunications services of the County and Schools. Two of the conduits were left vacant to provide for redundancy and future expansion. Where undergrounding was deemed unnecessary, fiber optic cables were strung by the County on telephone poles to reach County and School facilities. The County and Arlington Public Schools worked closely together to coordinate funding and protocols for installing the fiber in Schools. As a result of these efforts, by February 2015, approximately 200 traffic signals, 14 Public Safety Ports (at traffic lights for connection by Public Safety in emergencies), 6 radio towers and 49 County and Schools facilities have been connected to ConnectArlington fiber. By the end of 2016, any remaining traffic signals and County/Schools facilities will be connected to ConnectArlington. At that point, 250 Traffic Signals, 14 Public Safety Ports, 6 Radio towers, and 96 County and School facilities will be connected. With the majority of the underlying construction designed, funded, underway and soon to be completed, the Manager announced on April 1, 2014, a plan to explore the expansion of ConnectArlington to provide middle mile dark fiber connections for economic development purposes. Since April, the County has engaged telecommunication consultants to review possible approaches and solicited industry views through issuance of a Request for Information. DISCUSSION: Consistent with guidance provided at adoption of the FY 2015 budget and FY 2015-FY 2024 Capital Improvement Plan by the County Board, fiber has been ordered and construction is proceeding to install 864 strands of dark fiber for ConnectArlington within one vacant conduit. If an applicant desires to initially license strands that are not yet currently available, the strands will be installed by the County as promptly as reasonably possible. The County installed dark fiber will be used to meet the future communications needs of the County Given that in the near term not all of this fiber is presently needed for County government operations and other public purposes, the fiber can and should be utilized in support of the economic development goals of Arlington County. After studies, interviews and discussions with commercial and government entities, staff has determined that there is a need and interest in dark fiber by commercial and government entities in primarily commercial areas and corridors at reasonable rates.
weather or line-of-sight obstructions. The ring connects six radio towers (5 in Arlington and 1 in Fairfax County.) The construction of the ring was completed in August 2014. 3The County co-located fiber optic cable in conjunction with two DVP system upgrades in various locations throughout the County. These upgrades were completed in 2012 and 2013. 4 A standard site plan condition approved by the Board requires developers to construct/install four 2-inch communication conduits and junction boxes along site frontage for the sole and exclusive use by Arlington County.
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The licensing of dark fiber to others for economic development purposes is appropriate and beneficial to the economic and fiscal sustainability of Arlington County. The fiber will provide access to a reliable, diverse, secure fiber network that is critical to Arlington’s commercial tenant base; it should improve the capacity, redundancy, security and affordability of the overall telecommunications infrastructure, thus creating a strong locational competitive advantage to Arlington County. This phase of investment in ConnectArlington is consistent with Arlington Economic Development’s Strategic Plan, Arlington’s Framework for Prosperity:
• Arlington will be recognized for its superior business environment which includes world-class facilities, infrastructure and systems;
• Arlington will support a sustainable and flourishing economy which will contribute meaningfully to a fiscally sound and healthy community;
• Arlington will be an inclusive and interconnected community that fosters an innovative and creative workforce, supported by effective workforce development programs; and,
• Arlington will enjoy high quality places that ensure an exceptional quality of life and offer amenities that are valued by residents, businesses, and visitors.
The investment in this phase of ConnectArlington continues a long history of Arlington making significant, visionary investments in the future growth and sustainability of Arlington which has allowed for a commitment to smart growth land use planning that has made Arlington a national and regional model for fiscal balance, stability and growth. The economic development benefit from the use of dark fiber will help enhance future health and vitality of higher-density, mixed-use urban villages, particularly the commercial real estate sector, that is the foundation of Arlington’s fiscal stability and growth. Major Provisions of Draft License Agreement: If approved by the County Board, the attached Standard Form Dark Fiber License Agreement could be entered into by any potential licensee and the County without further action required by the Board5. The major terms of the Agreement include that:
• Dark fiber shall be licensed and the County will not be involved in any manner with promoting, marketing or providing of services to end users. This avoids County involvement in direct provision of telecommunications services.
• The County Manager, or her designee, will administratively process a License Agreement with the County and the Licensee using only a County Board approved Standard Form License Agreement and Schedule of Rates and Fees.
• The Licensee must license the entire available fiber loop (“the Middle Mile”) for each strand of fiber licensed. This requirement will ease administration of ConnectArlington.
5 696 of the total 864 strands of fiber to be installed in the County conduit will be available for licenses using the Standard Form Licensing Agreement. Another 168 strands of dark fiber will be available for use through a different License Agreement to persons and entities to which the County is permitted by law to make donations and contributions. Terms and provisions of the licensing of these 168 strands may be guided by a different set of rates and conditions. The non-standard Form License Agreements will be brought to the Board, periodically, for approval.
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• Licensed fiber must have at least one connection to a building or facility in Arlington County. This ensures that the Licensee’s use of the County dark fiber will inure to the benefit of the County. An applicant may obtain, if available, and upon paying the appropriate fee, interconnections at multiple locations along an individual dark fiber strand licensed to the applicant.
• A Schedule of Rates and Fees will be approved by the County Board periodically. A maximum number of fibers (48) can be licensed to any single licensee at any time, in order to avoid hoarding of and squatting on County fiber.
• The County will retain ownership of, control of, access to, and responsibility for maintenance of the Middle Mile fiber loop and direct points of access to the middle mile (“joint use boxes”). Licensees will be responsible for physical access to buildings and facilities (the Last Mile), unless determined in separate agreement with the County, and for connections to any telecommunications network (the First Mile). Licensees will not have access to the Middle Mile or joint use boxes without approval and supervision of the County. This is intended to provide the safety and integrity of the system.
• The Licensee will be licensing specified dark fiber strands, and will have no rights over, or access to, Middle Mile conduit through which all the County’s ConnectArlington fiber runs.
Limitations on Use Making County dark fiber available to others, until the County needs to use it, is intended to support the County’s economic development goals, by providing high speed, reliable fiber optic lines whih are vital to commercial and governmental entities and will enhance of the economic and fiscal health of Arlington’s commercial cores. The dark fiber licensed to others shall not be used:
• To provide cable services, unless such Licensee has obtained a franchise agreement with the County;
• To provide a connection(s) to others outside of Arlington County, without a physical connection to a building or facility in Arlington; and,
• For sub-licensing by the Licensee to others. Terms and Pricing Structure: The Schedule of Rates and Fees has been constructed by the AED, DTS and DMF staff after working with consultants. The objectives include:
• Recovery of the County initial and ongoing financial investments in ConnectArlington; • Encouraging use by multiple licensees; • County ability to recapture use of any licensed fiber once the County needs require it. As
such, under the initially proposed Schedule of Rates and Fees, licenses for the use of dark fiber by private business Licensees cannot exceed a term of 10 years.
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Status of Construction If the Board approves the form Dark Fiber License Agreement attached, the County will then install middle mile fiber for licensees. In so doing, the County will be able to satisfy licensee need in an expeditious manner. The remaining installation of the 10 mile network infrastructure will follow the route described in Exhibit D. By the Fall of 2015, the infrastructure will consist of 864 strands of single mode ribbon optical fiber laid underground in a designated conduit. To satisfy Virginia Department of Transportation requirements and to accommodate expected demand for access, infrastructure enhancements will be necessitated along the route. Specifically, larger junction boxes will be installed by the County to accommodate the amount of fiber being deployed. Additionally, to satisfy physical security requirements desired by potential licensees, each junction box will be secured with a locked cover. Once the 10 mile infrastructure is completed and is being used by Licensees, staff will monitor and evaluate the effectiveness of the project. Depending on experience and value analysis, staff may seek additional funding (through revenues from the first 10 miles and additional appropriations if needed) to expand the network. An expanded network would connect all the urban corridors of the County, including, East Falls Church, the Columbia Pike Corridor, South Four Mile Run and Shirlington. In total distance this would provide an additional 12 miles of network infrastructure. Construction on this stage would not begin until County Board approval and funding has been approved. ConnectArlington Implementation The ConnectArlington infrastructure will also be used as part of the in-building wireless systems being adopted by developers and the County and Schools. Prior to and following the adoption by the County Board in October 2013, of a Resolution Advancing New Public Safety Technology, several properties and new County and School construction will avail themselves of ConnectArlington fiber. The buildings with the wireless systems are using the “robust fiber optic network” (ConnectArlington) referenced in the Board resolution. In addition, the County Manager, may, in the future, suggest as economic incentives for businesses, funding for their last mile connections to ConnectArlington. The advisability of using any fund for economic development incentives will be measured primarily through two metrics: amount of occupied office space and overall fiscal impact. Any investment should include a cost-benefit analysis to the County. Any funds for economic development incentives will be appropriated by the County Board to the Industrial Development Authority (IDA), who will then execute the agreement and appropriation for the last mile connections. If the County Board approves the Manager’s recommendations, then DTS staff is prepared to promptly receive applications from interested persons or entities. The applications will be processed by DTS staff. An administrative process for processing, receiving payments and the necessary physical interconnection work is in place. It is estimated that no more than 90 days will be needed for review, acceptance of an application, issuance of a Notice of Availability, execution of an agreement and physical interconnections of the First and Last Mile to ConnectArlington.
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FISCAL IMPACT: The expansion of ConnectArlington, including the addition of 864 strands of dark fiber within ten miles of existing conduit, has a capital project budget estimate of $4.1 million. This was funded partially during the FY 2015 adopted budget at $1.6 million and presented in the adopted FY 2015 – FY 2024 Capital Improvement Plan (CIP). The remaining funds were identified from FY 2014 closeout of $2.5 million and will be presented as part of the allocation of the FY 2016 PAYG proposed budget. Capital costs include amounts to be paid to the Federal Highway Administration (FHWA) to reimburse a portion of the Federal funds associated with the purchase and installation of the conduit the County will utilize for Connect Arlington, as well as various junction boxes installed as part of the ITS Phase I and II projects. This payment to FHWA will ensure the conduit is available for the purposes described herein. Operating expenses are estimated at approximately $700,000 - $800,000 annually to pay for a business/project manager and an accounting/administrative specialist, contractors to manage the construction and inspect the work, software to maintain geographic systems related to the fiber, monitoring costs for the overall network and contingencies for fiber repairs. The FY 2016 proposed budget includes $500,000 which covers full year costs for the business manager, half year funding for the accounting specialist, contractor costs as well as some fiber mapping and monitoring costs. Staff will reevaluate the project needs as ConnectArlington gets underway and will identify the balance of funds needed at the fiscal year end closeout review process. As ConnectArlington is implemented, staff will gather data about the supply and demand economics for the leasing of the dark fiber. The investment in ConnectArlington enhances the County’s fiber network and economic infrastructure. Thus, like most public infrastructure investments, it has broader goals and impacts than merely direct revenue cost recovery. The licensing of dark fiber will generate direct revenue and will likely lead to increased economic activity and other indirect revenues. At this time, no revenue is budgeted since it is too early to make a projection. Staff does estimate, based upon conservative market assumptions about the number of strands to be licensed and resulting revenues, that the costs of the capital investments and the early-year operating and maintenance costs will be recovered over an 8 to 10 year period. This payback does not include the revenue realized from additional tax payments from development spurred by this initiative. Any license revenues received will be appropriated and recorded in a separate cost center which will be tracked separately. The following is a history of previous Board budget actions on these items:
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ConnectArlington Timeline
Date of Board Action Project Amount Authorized, Funding SourceJune 26, 2004 Public Safety radio system & infrastructure $4.0 M, 2004 IDA Lease Revenue BondsJune 3, 2010 - Schools CIP FY11-FY16 ConnectArlington $1.9 M, 2010 School GO BondsJune 15, 2010 - County CIP FY11-FY16 ConnectArlington, ITSJuly 21, 2012 - CIP FY13-FY22 ConnectArlington, ITS $13.475 M, 2012 County GO Bonds; $15.3 M,
federal grants; $9.1 M, other local fundsJuly 18, 2014 - CIP FY15-FY24 ConnectArlington, ITS $3.5 M, 2014 County GO Bonds
Recent Contract Authorizations Contract Amount Authorized, Funding SourceFebruary 21, 2009 award of DVP construction at Kirkwood/Lee
Hwy - install CA fiber$0.4 M, funded by IDA bonds
January 22, 2011 award of ITS Phase I construction, CA fiber $4.7 M, funded by federal grants, IDA bondsMay 19, 2012 award of ITS Phase II construction, CA fiber $8.0 M, funded by federal grants, IDA bondsOctober 20, 2012 award of CA last mile construction - phase I $5.4 M, funded by GO bondsDecember 13, 2014 award of ITS Phase III construction, CA fiber $8.8 M, funded by federal grants, GO bonds
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EXHIBIT A
COUNTY BOARD POLICY STATEMENT REGARDING CONNECTARLINGTON AS AN ECONOMIC DEVELOPMENT TOOL
Consistent with guidance provided by the County Board at the adoption of the Fiscal Year 2015 budget, and the adoption of the Fiscal Years 2015 to 2024 Capital Improvement Plan; and
Consistent with the goals in Arlington Economic Development’s Strategic Plan, Arlington’s Framework for Prosperity (including the goal of creating an interconnected community); and
Consistent with the County’s investments in long-term infrastructure needs for the County and Schools; and
Consistent with the plan to lay 864 strands of dark fiber in a conduit traversing our major business corridors; and
Consistent with a desire to provide access to dark fiber that will result in secure and affordable access;
The Arlington County Board finds that the licensing of dark fiber for economic development purposes is beneficial to the economic and fiscal sustainability of Arlington County.
POTOMAC RIVER
CONNECT ARLINGTONEconomic Development
LegendArlington County
Landmark Building
Pavement
Potomac River
Connect Arlington Additional Segments
10-Mile Segment
12-Mile Segment
Map prepared by GIS Mapping Center2100 Clarendon Blvd., Suite 813Arlington, VA 22201Email: [email protected] Maps are available for sale at the above location.
Spatial reference: Virginia State Plane North, NAD 1983.Base map updated from March 2013 digital aerial photography.Potomac River from USGS 1:24,000 DLG files.Cadastral and political data layers are maintained on an on-going basis.
Map shall not be construed as legal document.
Pursuant to Section 54.1-402 of the Code of Virginia, any determination of topography or contours, or any depiction of physical improvements, property lines or boundaries is for general information only and shall not be used for the design, modification, or construction of improvements to real property or for flood plain determination.
Map © 2015 Arlington County, VAPrinted: February 2015
²
0 0.5 10.25Mile
1:15,000
February 12, 2015
DARK FIBER LICENSE AGREEMENT
BETWEEN
THE COUNTY BOARD OF ARLINGTON COUNTY, VIRGINIA
AND
[INSERT NAME OF LICENSEE]
EXHIBIT B
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ARTICLE I ......................................................................................................................................... 1
DEFINITIONS; LICENSE GRANT .................................................................................................. 1
Section 1.1. Definitions ..................................................................................................................................... 1
Section 1.2. Grant of License ............................................................................................................................. 1
Section 1.3. Ownership of County Network and Related Facilities .................................................................... 2
Section 1.4. Limitations of County’s Obligations ................................................................................................ 2
Section 1.5. Licensee's Equipment ..................................................................................................................... 3
Section 1.6. Restrictions On Use of Licensed Fibers ........................................................................................... 3
Section 1.7. Use of County Conduits .................................................................................................................. 4
Section 1.8. Process for Obtaining Access to Licensed Fibers ............................................................................. 4
Section 1.9. Liens ............................................................................................................................................... 4
Section 1.10. Unauthorized Use of Available Fiber ............................................................................................. 4
Section 1.11. Administrative Rules ..................................................................................................................... 5
Section 1.12. Licensee’s Cooperation ................................................................................................................ 5
ARTICLE 2 ........................................................................................................................................ 6
ADDITIONAL LICENSED FIBERS OR INTERCONNECTION POINTS .................................... 6
Section 2.1. Application ..................................................................................................................................... 6
Section 2.2. Coordination of Multiple Applications ........................................................................................... 6
Section 2.3. Rejection of an Application ............................................................................................................. 6
Section 2.4. Approval of an Application............................................................................................................. 7
Section 2.5. Notice of Availability ...................................................................................................................... 7
Section 2.6. License in Additional Licensed Fibers and Additional Interconnection Fibers ................................. 7
Section 2.7. License in Additional Interconnection Points .................................................................................. 8
Section 2.8. Amendment of Schedules .............................................................................................................. 8
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ARTICLE 3 ........................................................................................................................................ 8
PRICING AND PAYMENT .............................................................................................................. 8
Section 3.1. Connection Fees .............................................................................................................................. 8
Section 3.2. License Fees .................................................................................................................................... 8
Section 3.3. Licensee Costs ................................................................................................................................ 9
Section 3.4. Construction Costs ......................................................................................................................... 9
Section 3.5. Payments ........................................................................................................................................ 9
Section 3.6. Late Payments; Proration ............................................................................................................... 9
ARTICLE 4 ..................................................................................................................................... 10
TERM AND TERMINATION ....................................................................................................... 10
Section 4.1. Term of Agreement ....................................................................................................................... 10
Section 4.2. Term of Licenses ........................................................................................................................... 10
Section 4.3. Early Termination By Licensee ...................................................................................................... 10
Section 4.4. Termination by the County for Cause ............................................................................................ 10
Section 4.5. Termination by Licensee for Cause................................................................................................ 11
Section 4.6. Cure Period .................................................................................................................................. 11
Section 4.7. Termination By County For Convenience ..................................................................................... 12
Section 4.8. Termination in Case of Force Majeure.......................................................................................... 12
Section 4.9. Obligations Upon Expiration or Termination ................................................................................. 12
Section 4.10. County’s Right to Use Licensed Fibers Upon Termination ........................................................... 13
Section 4.11. No Rights of Licensee after Expiration or Termination ............................................................... 13
Section 4.12. Receivership and Foreclosure ..................................................................................................... 13
ARTICLE 5 ..................................................................................................................................... 14
LOCATION OF AND ACCESS TO COUNTY FACILITIES ........................................................ 14
Section 5.1. No Construction ........................................................................................................................... 14
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Section 5.2. Access to County Network ........................................................................................................... 14
Section 5.3. Location of Licensed Fibers and Interconnection Points ............................................................... 14
Section 5.4. County’s Right to Relocate ........................................................................................................... 14
Section 5.5. Collocation of County Network Users........................................................................................... 15
Section 5.6. Licensee's Work ........................................................................................................................... 15
Section 5.7. The County’s Work ....................................................................................................................... 15
Section 5.8. Inspections ................................................................................................................................... 15
Section 5.9. No Access to County Property by Licensee ................................................................................... 16
Section 5.10. Continuing Right of County To Enter County Facilities ................................................................ 16
ARTICLE 6 ..................................................................................................................................... 16
LICENSEE’S EQUIPMENT ........................................................................................................... 16
Section 6.1. Licensee’s Equipment ................................................................................................................... 16
Section 6.2. Access to Licensee’s Equipment ................................................................................................... 16
Section 6.3. County’s Right of Inspection......................................................................................................... 17
ARTICLE 7 ..................................................................................................................................... 17
TECHNICAL SPECIFICATIONS .................................................................................................. 17
Section 7.1. Cable Specifications ...................................................................................................................... 17
Section 7.2. Construction and Splicing ............................................................................................................. 17
ARTICLE 8 ..................................................................................................................................... 17
PERMITS AND COMPLIANCE .................................................................................................... 17
Section 8.1. Governmental Approvals............................................................................................................ 17
Section 8.2. Certification ................................................................................................................................. 17
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ARTICLE 9 ..................................................................................................................................... 18
ACCEPTANCE AND ACTIVATION ............................................................................................. 18
Section 9.1. Testing and Acceptance of Licensed Fibers ................................................................................... 18
Section 9.2. Activation of Licensed Fibers ........................................................................................................ 18
Section 9.3. Irrevocable Acceptance of Licensed Fibers ................................................................................... 18
Section 9.4. No Warranty by County ............................................................................................................... 18
ARTICLE 10 .................................................................................................................................. 18
MAINTENANCE AND REPAIR OF COUNTY NETWORK ....................................................... 18
Section 10.1. Maintenance .............................................................................................................................. 18
Section 10.2. Repairs ....................................................................................................................................... 18
Section 10.3. Routine Monitoring .................................................................................................................... 19
Section 10.4. Notification by County of Anticipated Disruption ....................................................................... 19
Section 10.5. Maintenance of Licensee's Equipment ....................................................................................... 19
Section 10.6. Outages ...................................................................................................................................... 19
Section 10.7. Emergency Repairs ..................................................................................................................... 20
ARTICLE 11 .................................................................................................................................. 21
COVENANTS, REPRESENTATIONS AND WARRANTIES ..................................................... 21
Section 11.1 Licensee’s Covenants .................................................................................................................. 21
Section 11.2. Licensee’s Representations and Warranties ............................................................................... 23
Section 11.3. County’s Representations and Warranties ................................................................................. 23
ARTICLE 12 .................................................................................................................................. 24
LIABILITY ..................................................................................................................................... 24
Section 12.1. Limitation of the County’s Liability ............................................................................................. 24
Section 12.2. Limitation of Licensee's Liability .................................................................................................. 24
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Section 12.3. Force Majeure ............................................................................................................................ 24
Section 12.4. Electrical Outages ....................................................................................................................... 24
Section 12.5. Damage Caused by Third Parties ................................................................................................ 24
Section 12.6. Damage to Facilities ................................................................................................................... 24
Section 12.7. Licensee’s and Licensee’s Contractor’s Insurance ....................................................................... 25
Section 12.8. County’s Insurance and Self Insurance ....................................................................................... 27
Section 12.9. Indemnification by Licensee ....................................................................................................... 27
ARTICLE 13 .................................................................................................................................. 28
DEFAULT, SECURITY FUND, AND REMEDIES ....................................................................... 28
Section 13.1. Termination Rights ..................................................................................................................... 28
Section 13.2. Security Fund ............................................................................................................................. 28
ARTICLE 14 .................................................................................................................................. 29
ASSIGNMENT AND SUBLICENSING ......................................................................................... 29
Section 14.1. Assignment by the County ......................................................................................................... 29
Section 14.2. No Sublicense by Licensee .......................................................................................................... 29
Section 14.3. No Assignment; Exceptions. ....................................................................................................... 29
ARTICLE 15 .................................................................................................................................. 30
FORCE MAJEURE ......................................................................................................................... 30
Section 15.1. Effects of Force Majeure ............................................................................................................ 30
Section 15.2. Notice of Force Majeure Event ................................................................................................... 30
Section 15.3. Exception for Payment of Fees ................................................................................................... 30
Section 15.4. Time for Performance ................................................................................................................ 30
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ARTICLE 16 .................................................................................................................................. 30
ABANDONMENT .......................................................................................................................... 30
Section 16.1. Licensed Fibers, Interconnection Fibers, and Interconnection Points ......................................... 30
Section 16.2. Licensee Equipment Placed in County Rights-of-Way ................................................................. 31
Section 16.3. Abandonment by the County ..................................................................................................... 31
ARTICLE 17 .................................................................................................................................. 31
TAXES ............................................................................................................................................ 31
Section 17.1. General ....................................................................................................................................... 31
ARTICLE 18 .................................................................................................................................. 32
PROVISIONS RELATED TO VARIOUS LAWS ......................................................................... 32
Section 18.1. County Records and Information................................................................................................ 32
Section 18.2. Confidential Information and Documents .................................................................................. 32
Section 18.3. Non-Appropriation ..................................................................................................................... 32
Section 18.4. Sovereign Immunity ................................................................................................................... 33
Section 18.5. No Promotion or Marketing of Licensee; Publicity; Media Releases ........................................... 33
ARTICLE 19 .................................................................................................................................. 34
MISCELLANEOUS......................................................................................................................... 34
Section 19.1. Captions; Headings ..................................................................................................................... 34
Section 19.2. Failure to Exercise Rights............................................................................................................ 34
Section 19.3. Further Assurances..................................................................................................................... 34
Section 19.4. Counterparts .............................................................................................................................. 34
Section 19.5. Interpretation ............................................................................................................................ 34
Section 19.6. Contractors ................................................................................................................................ 34
Section 19.7. Contact Persons ......................................................................................................................... 34
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Section 19.8. No Relief From Taxes, Fees or Other Government Impositions .................................................. 34
Section 19.9. Audit .......................................................................................................................................... 34
Section 19.10. Delegation ................................................................................................................................ 35
Section 19.11. Notices ..................................................................................................................................... 35
Section 19.12. No Exclusivity ........................................................................................................................... 35
Section 19.13. Entire Agreement and Amendment of License Agreement ....................................................... 35
Section 19.14. No Vested Right in Licensee or Others; Limitations .................................................................. 36
Section 19.15. No Rights in Third Parties; No Third Party Beneficiaries; No Agency ......................................... 36
Section 19.16. No Recourse Against County .................................................................................................... 36
Section 19.17. No Partnership ......................................................................................................................... 36
Section 19.18. Licensee Not an Agent of the County ....................................................................................... 36
Section 19.19. No Waiver of Rights by County ................................................................................................. 36
Section 19.20. Reservation of Rights by County............................................................................................... 37
Section 19.21. Survival .................................................................................................................................... 37
Section 19.22. Severability .............................................................................................................................. 37
Section 19.23. Applicable Law ......................................................................................................................... 37
Section 19.24. Recitals; Exhibits ...................................................................................................................... 37
Section 19.25. Effective Date ........................................................................................................................... 37
Section 19.26. Exhibits and Schedules ............................................................................................................. 37
LIST OF EXHIBITS AND SCHEDULES ...................................................................................... 40
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DARK FIBER LICENSE AGREEMENT
THIS LICENSE AGREEMENT (“Agreement”) is dated as of the ____ day of ___, 20__,
between The County Board of Arlington County, Virginia, a body politic (“County”), and
_________, a _______ established under the laws of ____ (“Licensee”). The County and the
Licensee are sometimes collectively hereafter referred to as the “Parties,” and each singularly
as a “Party.”
RECITALS
A. The County has constructed a fiber optic network for the purpose of providing
communications capabilities to County government facilities (the “County
Network”).
B. The County has determined that certain bundles of fiber optic cable installed as part
of the County Network are excess because they are not currently needed to meet the
County’s current communications needs (the “Available Fiber”).
C. The County desires to license a portion of the Available Fiber, in the form of Dark
Fiber, to the Licensee.
D. The Licensee desires to expand its communications capabilities, and in the interests
of convenience and efficiency, the Licensee finds that it is prudent and economical
to license Dark Fiber from the County rather than to construct additional facilities
of its own.
E. The County believes that the interests of the public, including the County’s
economic development goals, would be served by allowing the Licensee to license a
portion of the Available Fiber, in accordance with the terms and conditions
contained herein.
NOW, THEREFORE, in consideration of the mutual covenants, agreements and undertakings
contained herein, the Parties agree as follows:
ARTICLE I
Definitions; License Grant
Section 1.1. Definitions. Capitalized terms used in this Agreement shall have the meanings
ascribed to them in Exhibit A (“Definitions”).
Section 1.2. Grant of License. In consideration of the Licensee's payment of all fees due and
payable hereunder and the covenants of the Parties contained in this Agreement, the County
hereby grants to the Licensee a license for the exclusive use of each of the Original Licensed
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Fibers described in Schedule 1 (each such individual license being defined as a separate
“License”), commencing on the Acceptance Date set forth in Schedule 1. The County also
hereby grants to the Licensee a license for the nonexclusive use of each of the Original
Interconnection Points described in Schedule 1 (each such individual license being defined as a
separate “License”), commencing on the Acceptance Date set forth in Schedule 1. The County
also hereby grants to the Licensee a license for the exclusive use of the Original
Interconnection Fibers connecting the Original Licensed Fibers and each Original
Interconnection Point (each such individual license being defined as a separate “License”),
commencing on the Acceptance Date set forth in Schedule 1. Each License shall be subject to
the terms, conditions and covenants of this Agreement. As a condition of the grant of each
License, the Licensee agrees to accept each Original Licensed Fiber, each Original
Interconnection Point, and each Original Interconnection Fiber AS IS WHERE IS, and
acknowledges that the Licensed Fibers and Interconnection Fibers are Dark Fiber. The
Licensed Fibers and Interconnection Fibers shall be identified by strand number, and the
Interconnection Points shall be identified using standard GPS location descriptions, as
determined by the County.
Section 1.3. Ownership of County Network and Related Facilities. All components of the
County Network are and shall remain the property of the County. Notwithstanding anything to
the contrary in this Agreement, the Licensee shall have no ownership interest in the Available
Fiber or in any Licensed Fiber, Interconnection Point, Interconnection Fiber, or other
component of the County Network, including without limitation, any Joint Use Box or other
Interconnection Point located within any County Facilities, whether installed by or at the
expense of the County, the Licensee, or Licensee’s contractor. The Licensee shall be solely
responsible for obtaining all such rights or permissions as may be necessary or required for the
Licensee to install, maintain, repair, replace, and remove the Licensee's Equipment. The terms
of this Agreement apply only to (i) the Licensed Fibers; (ii) the Interconnection Fibers, up to
the points of demarcation between the Interconnection Fibers and the Licensee’s Equipment at
each Interconnection Point; and (iii) Interconnection Points located within any County
Facilities.
Section 1.4. Limitations of County’s Obligations.
1.4.1. The Licensed Fibers and the Interconnection Fibers shall be licensed only
as Dark Fiber. The Licensee acknowledges and agrees that the County shall not be required to
supply or deliver any optronics, transceivers, electronics, optical or electrical equipment, patch
or drop cables, or other facilities, including without limitation any equipment to light the
Licensed Fibers or the Interconnection Fibers, any generators, batteries, air conditioners, fire
protection, or monitoring and testing equipment, all of which are the sole responsibility and
expense of the Licensee. The County shall have no obligation to activate or light the Available
Fiber or any portion thereof, or to install, construct or maintain any fiber optic equipment
or facilities other than the Licensed Fibers and the Interconnection Fibers. The County shall
have the obligation to construct only such Interconnection Points as it may agree to construct
subject to this Agreement, and shall maintain all Interconnection Points located within any
County Facilities.
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1.4.2. Subject to the terms of this Agreement, the Licensee may enter into
separate contractual arrangements with its customers. The County shall not be a party to any
such contracts between the Licensee and its customers. The County shall have no role in the
provision of services to the Licensee’s customers, and shall have no liability of any kind to the
Licensee’s customers. The Licensee’s customers shall not be deemed third party beneficiaries
of this Agreement. The Licensee shall indemnify the County against any liability arising from
any claim contrary to the provisions of this subsection.
Section 1.5. Licensee's Equipment. T he Licensee shall be responsible, at its sole cost and
expense, for ordering, supplying, constructing, installing, maintaining, repairing, replacing, and
removing any and all of the Licensee's Equipment, except as otherwise specifically set forth in
this Agreement. Additionally, the Licensee shall be responsible, at its sole cost and expense,
for obtaining any easements, licenses or consents that may be required for the installation and
maintenance of the Licensee's Equipment.
Section 1.6. Restrictions On Use of Licensed Fibers.
1.6.1. The Licensee shall have the right to use the Licensed Fibers and the
Interconnection Fibers for any lawful purpose, subject to applicable law, provided, however
that (i) the Licensee shall not use the Licensed Fibers or the Interconnection Fibers to provide
cable services unless and until it has obtained a franchise agreement from the County; and (ii)
the County reserves the right to require the Licensee to obtain a franchise or other form of
authorization for any other class of service which the County is hereafter authorized to regulate
by franchise or otherwise. The Licensee shall not have the right, by sublicense or otherwise, to
make any of the Licensed Fibers or the Interconnection Fibers available to any person or entity
in the form of Dark Fiber.
1.6.2. Notwithstanding Section 1.6.1, the Licensee shall not physically
interconnect the Licensed Fibers or any Interconnection Fibers with any Licensee Lateral that
serves any customer located outside of Arlington County.
1.6.3. The Licensee expressly acknowledges that the County Facilities, with
the exception of the Licensed Fibers and Interconnection Fibers, will be used by other entities,
including the County and other owners and users of telecommunications systems, and that such
entities could be harmed by Licensee’s actions. The Licensee shall not engage in any of the
following activities during the term of this License Agreement:
1.6.3.1. Any activity that encroaches upon, or interferes with the
use of, County Rights-of-Way, public utility easements, or public service easements that are
used in connection with the operation of the County Network, including the Licensed Fiber,
Interconnection Fibers, and Interconnection Points;
1.6.3.2. Any activity that interferes with the County’s rights and
obligations to design, construct, operate, monitor, manage, maintain, repair, modify, replace, or
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remove the County Network;
1.6.3.3. Any activity that interferes with or adversely affects the
use of the fibers or cable of any other person or entity using the County Network; or
1.6.3.4. Any activity that interferes with the use, by the County or
others, of County Facilities.
Section 1.7. Use of County Conduits. Neither the Licensee nor any third party shall have the
right to install any fiber optic lines or other facilities in any County Conduit. The Licensee
shall have no independent right or permission to use or occupy any County Conduit, other than
the permission to use the Licensed Fibers and the Interconnection Fibers granted by this
Agreement.
Section 1.8. Process for Obtaining Access to Licensed Fibers.
1.8.1. The Licensee shall have no right to connect or to use any Licensed Fiber,
any Interconnection Fiber, or any Interconnection Point until the County has issued a Notice of
Availability with respect to such Licensed Fiber, Interconnection Fiber, or Interconnection
Point. Upon determination by the County that the requested fibers are ready for splicing, the
County shall issue a Notice of Availability and the Licensee shall have the permission to use
the Licensed Fibers, Interconnection Fibers, and Interconnection Points, subject to the terms of
this Agreement.
1.8.2. The County shall use commercially reasonable efforts to issue a Notice
of Availability for the Licensed Fibers, Interconnection Fibers, and Interconnection Points
identified on Schedule 1 within ninety (90) Days after the Effective Date. If the County does
not issue a Notice of Availability for a Licensed Fiber, Interconnection Fiber, or
Interconnection Point by that date, the Licensee may, by written notice to the County,
terminate this Agreement as to such Licensed Fiber, Interconnection Fiber or Interconnection
Point.
Section 1.9. Liens. The Licensee shall not file or permit liens or other encumbrances of any
kind to be placed on the County Network, the County Facilities, or any property, assets or
facilities of Facility Third Parties. Upon written notice of a lien or encumbrance benefiting the
Licensee, the Licensee's creditor or the Licensee's agent, the Licensee shall take all steps
necessary to remove said lien or encumbrance at Licensee's sole expense. The Licensee shall
ensure that any third-party materialman's liens filed or deemed filed by law will be removed
upon completion of the work, but in any event within ninety (90) Days.
Section 1.10. Unauthorized Use of Available Fiber.
1.10.1. The County may examine and audit Licensee's Equipment as provided
in Section 6.3. If the County finds that Licensee has interconnected with any Available Fiber
for which Licensee does not hold a License, the County may assess a one-time charge payable
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by Licensee equal to double the amount Licensee would have paid for the use of such
Available Fiber at the Standard Pricing, plus interest thereon calculated at a rate of one and
one-half percent (1.5%) per month from the date that the unauthorized use first occurred.
1.10.2. The County shall determine the date on which unauthorized fiber use
first occurred, based on reasonable inquiry and inspection. If the date that the unauthorized use
first occurred cannot be determined by the County upon reasonable inquiry or inspection, any
unauthorized use of fiber shall be deemed to have first occurred on the Acceptance Date
indicated on the earliest Notice of Availability to any licensed user for the Strand or Strands in
question.
1.10.3. Unpaid fees for unauthorized fiber use and interest shall continue to
accrue on a monthly basis until an Application is approved authorizing the Licensee's use of
any Available Fiber, provided that such Application is approved. If such Application is
rejected, upon notice from the County to the Licensee, the County shall have the right to
disconnect the Licensee's Equipment from the unauthorized fibers according to the provisions
of Section 4.9. The Licensee shall pay any fees and interest due under this Section within
thirty (30) Days from receipt of written notice from the County. Any payments under this
Section shall be refundable to the Licensee in the event that the Licensee demonstrates to the
County's reasonable satisfaction that such payments were in error, and the Licensee's
Equipment has been disconnected or removed from the fibers for which the charges were
assessed.
Section 1.11. Administrative Rules. The County’s Administrative Rules shall establish in
further detail procedures for obtaining access to County Facilities, performance of work in the
County Rights-of-Way, connection of the Licensee Equipment to the County Network, and
related matters. The Administrative Rules shall be promulgated by and amended by the
County in its sole discretion, pursuant to the exercise of the County’s police powers and its
authority under applicable law to manage its property. The Director of the Department of
Technology Services shall have the authority to amend the Administrative Rules on behalf of
the County. Amendments shall be signed, dated, and provided to the Licensee in writing
pursuant to the notice provisions of this Agreement. In the event of a conflict between this
Agreement and the Administrative Rules, the Administrative Rules shall control. The
Administrative Rules as in effect as of the Effective Date are attached as Exhibit B.
Section 1.12. Licensee’s Cooperation. Licensee shall use reasonable commercial efforts to
cooperate with the County concerning construction, installation and testing activities pertaining
to any portion of the County Network, whether used by the County, Licensee, or a third party.
The County shall provide Licensee with reasonable advance notice, in writing, of the necessity
for any such cooperation.
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ARTICLE 2
Additional Licensed Fibers or Interconnection Points
Section 2.1. Application. The Licensee may submit an Application for Additional Licensed
Fibers, Additional Interconnection Fibers, or Additional Interconnection Points at any time. A
completed Application shall include, as a minimum, the following:
2.1.1 A form attached as Exhibit C, as may be amended from time to time by
the County in its sole discretion, which shall include sufficient information to identify the
Additional Licensed Fibers and Additional Interconnection Fibers to which the Licensee
wishes to connect, specifically: (i) the number of Additional Licensed Fibers with which the
Licensee desires to connect; (ii) the number of Additional Interconnection Fibers with which
the Licensee desires to connect; (iii) the date on which the Licensee desires to connect; (iv) a
description of the Licensee's Equipment; and (v) the date on which the form is submitted (the
"Application Form").
2.1.2. Any plans, drawings, specifications, certifications and other information
reasonably necessary in order to evaluate the Licensee's Application.
2.1.3 A fee, in the amount specified in Schedule 2, payable to the County (the
"Application Fee"). The Application Fee may be adjusted from time to time by the County in
its sole discretion.
The Licensee will receive written notice from the County when the Application is complete. In
the event that an Application remains incomplete six (6) months after the Licensee's
submission of the Application Form, the Application shall be deemed expired and the
Application Fee shall be forfeited to the County. The County shall approve or reject an
Application in writing within thirty (30) Days after its receipt of a completed Application.
Section 2.2. Coordination of Multiple Applications. The County shall approve or reject
Applications in the order they are received.
Section 2.3. Rejection of an Application. The County may reject an Application for any lawful
reason, including, without limitation, the following:
2.3.1. There are no Strands at the locations requested in the Application that are
available for licensing by the County to the Licensee;
2.3.2 The County has determined that any remaining Strands must be reserved
for potential future use by the County;
2.3.3 The existence of physical obstacles renders the granting of access
impractical or undesirable, in the sole discretion of the County;
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2.3.4 Approving the Application would be contrary to an adopted action,
policy, or resolution of the Board specifically concerning ConnectArlington;
2.3.5. Approving the Application would require an outage or disruption of
service to another existing licensee;
2.3.6. The Licensee rejects the County's proposed Interconnection Points or
other modifications to the Application, or rejects, under Section 2.5, the Notice of Availability
as inconsistent with the terms of the Application as approved by the Parties; or
2.3.7. The Licensee is in default of this Agreement or any individual License
for which a notice of default has been issued and remains uncured.
2.3.8 In the event of a rejection of the application by the County, the entire
amount of the Application Fee shall be forfeited.
Section 2.4. Approval of an Application. Subject to the terms of Subsections 2.1 and 2.3, the
County will countersign each approved Application and deliver same to the applicant to
indicate the County’s approval. If the County approves an Application, the County shall use
commercially reasonable efforts to issue a Notice of Availability within ninety (90) Days after
the date the Application is approved. The County shall be under no obligation to approve any
Application that would require installation or construction of facilities beyond or in addition to
the Available Fiber. If the County does not issue such Notice of Availability within the time
frames prescribed in this Section, the Licensee may withdraw its Application.
Section 2.5. Notice of Availability. The terms and conditions of a Notice of Availability shall
reflect the Application made by the Licensee and approved by the County. The terms and
conditions of each Notice of Availability, when issued to the Licensee by the County, shall
automatically be incorporated herein without further notice or amendment of the Agreement by
the Parties, provided, however, that to ensure clarity in the application and interpretation of this
Agreement, Schedule 1 shall be amended to reflect the addition of Additional Licensed Fibers,
and Additional Interconnection Points. Schedule 3 shall also be amended to show any changes
in the License Fee, and Schedule 4 shall be amended to show the termination date of the
individual Licenses in the Additional Fiber and Additional Interconnection Points. If the terms
and conditions of a Notice of Availability do not reflect the Application as approved by the
Parties, the Licensee shall have ten (10) Days from the date of receipt to reject in writing the
Notice of Availability by identification of the inconsistency between the Application and the
Notice of Availability. Any Notice of Availability not timely rejected by the Licensee in
writing is automatically incorporated herein without further notice or amendment of the
Agreement by the Parties, again provided that Schedules 1, 3 and 4 shall be amended to reflect
the addition of Additional Licensed Fibers, Additional Interconnection Fibers, and Additional
Interconnection Points.
Section 2.6. License in Additional Licensed Fibers and Additional Interconnection Fibers. By
issuance of each Notice of Availability for Additional Licensed Fibers or Additional
8
Interconnection Fibers and amendment of Schedule 1, the County issues to the Licensee a
license for the Licensee's exclusive use of the each of the Additional Licensed Fibers and
Additional Interconnection Fibers identified therein, subject to the terms of this Agreement,
commencing on the Acceptance Date. Each license of an individual Additional Licensed Fiber
or Additional Interconnection Fibers shall be referred to hereinafter as a "License". The
Licensee acknowledges and agrees to accept each Additional Licensed Fiber each Additional
Interconnection Fiber, and each Additional Interconnection Point AS IS WHERE IS,
acknowledges that the Additional Licensed Fibers and Additional Interconnection Fibers are
Dark Fiber, and agrees that each License is subject to the Agreement, Underlying Rights, Laws
and Codes. Each License shall represent a personal right specific to Licensee's use.
Section 2.7. License in Additional Interconnection Points. A Notice of Availability for an
Additional Interconnection Point shall include an estimate of the Interconnection Costs, if any.
As further set forth in Section 3.4, upon the approval of an Application for Additional
Interconnection Points, Licensee shall bear any Interconnection Costs. By issuance of each
Notice of Availability for Additional Interconnection Points, the County grants to Licensee a
license for Licensee's non-exclusive use, subject to the requirements and restrictions of Article
5 of this Agreement, of the each of the Additional Interconnection Points identified therein,
subject to the terms of this Agreement, commencing on the Acceptance Date.
Section 2.8. Amendment of Schedules. A Notice of Availability for Additional Licensed
Fibers, Additional Interconnection Fibers, or Additional Interconnection Points shall attach
amended Schedules 1, 4 and 5, which shall be deemed to be attached hereto and to replace the
corresponding schedules then in effect
ARTICLE 3
Pricing and Payment
Section 3.1. Connection Fees. Unless otherwise waived in accordance with the Administrative
Rules or another generally applicable policy of the County, the Licensee shall pay a standard
Connection Fee for each Interconnection Point and any associated Interconnection Fibers. The
Connection Fees shall be computed in accordance with Schedule 2, and the total of all Initial
Connection Fees shall also be set forth on Schedule 2. The full amount of the Initial
Connection Fees shall be paid upon the later of thirty (30) Days after the Effective Date or the
receipt of an invoice therefor. The Connection Fees for any Additional Interconnection Points
shall be computed in accordance with Schedule 2 as in effect at that time, shall be set forth in
the corresponding Notice of Availability, and shall be paid upon the later of thirty (30) Days
after the issuance of such Notice of Availability or the receipt of an invoice therefor.
Section 3.2. License Fees.
3.2.1. The Licensee shall pay an annual License Fee for each Licensed Fiber.
The License Fee for each Licensed Fiber shall be computed in accordance with the Standard
Pricing on Schedule 2, and the total License Fee for all Licensed Fibers (the “Total License
9
Fee”) shall be set forth on Schedule 3. Schedule 3 shall be amended to reflect any Additional
Licensed Fibers, pursuant to Section 2.6. The License Fee for each Additional Licensed Fiber
shall be determined by the Standard Pricing in effect at the time Licensee submits an
Application.
3.2.2. The Standard Pricing as of the Effective Date is set forth in Schedule 2
herein and shall be effective until adjusted by the County. The County may adjust the Standard
Pricing from time to time at its sole discretion, by providing the Licensee and all other
licensees of Available Fiber notice of any adopted revised Standard Pricing. For the avoidance
of doubt, an adjustment to the Standard Pricing under this Section 3.2.2 shall not adjust the
License Fee for existing Licenses. Instead, the adjusted Standard Pricing shall be used to
calculate the License Fee for Licenses issued as a result of Applications submitted on or after
the effective date of the adjusted Standard Pricing.
3.2.3. License Fees are payable in advance, on a calendar year basis. The
yearly License Fee with respect to each Licensed Fiber upon the later of thirty (30) days after
the Acceptance Date or the receipt of an invoice therefor with respect to such Licensed Fiber,
and shall be pro-rated from the Acceptance Date to the end of the calendar year in which such
Acceptance Date occurs. Thereafter, License Fees with respect to such Licensed Fibers shall be
paid yearly in advance no later than January 30 of each year of the term of this Agreement.
Section 3.3. Licensee Costs. The Licensee shall pay all costs incurred by the Licensee for the
installation, maintenance, replacement, repair, and removal of the Licensee's Equipment. The
Licensee shall coordinate all work required for the interconnection of the Licensee's Equipment
to Licensed Fibers with the County and any affected third parties, in accordance with the
applicable Administrative Rules.
Section 3.4. Construction Costs. The Licensee shall be responsible for all costs incurred in
connection with the construction or installation of the Licensee’s Equipment, including without
limitation the installation of fiber optic cable up to each Interconnection Point. The Licensee
shall provide for such work to be done only by a contractor approved by the County pursuant
to Section 5.6, provided however, that certain construction work may be performed by the
County or the County’s contractor. In the latter case, the Licensee shall reimburse the County
for all Interconnection Costs within thirty (30) days of receipt of an invoice therefor.
Section 3.5. Payments. Payments required to be made by the Licensee to the County pursuant
to this Agreement shall be made at the address set forth in Schedule 5 herein. The County may
change the address and method for payment by providing written notice to the Licensee.
Section 3.6. Late Payments; Proration.
3.6.1. Any payments not made when due shall accrue interest at the rate of one
and one-half (1.5%) percent per month on the unpaid balance or the highest lawful rate,
whichever is less, calculated and applied commencing on the first Day of the next month after
the payment was due.
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3.6.2. For the last year of the Agreement term, Licensee shall pay for only that
prorated portion of the License Fees due for the year until the expiration date of the Agreement
term. In the event of an early termination of this Agreement, for a reason other than a breach
of the Agreement, by Licensee, Licensee shall be liable for only that prorated portion of the
License Fees that is due for the year until the date of such termination. Any excess fees
previously paid to the County shall be promptly refunded to Licensee upon termination of this
Agreement.
ARTICLE 4
Term and Termination
Section 4.1. Term of Agreement. This Agreement shall expire upon the date set forth in
Schedule 4, unless otherwise terminated in accordance with this Agreement.
Section 4.2. Term of Licenses. Each License shall be granted for a specified period, and the
term of each License shall be as set forth in Schedule 4, provided that every individual License
shall terminate upon the expiration or earlier termination of this Agreement. Under no
circumstances shall the term of any individual License exceed ten (10) years.
Section 4.3. Early Termination By Licensee. At any time after the third (3rd) anniversary of the
Acceptance Date of an individual License, the Licensee may terminate that License upon sixty
(60) Days advance written notice to the County and payment of an early termination fee, which
shall be due with said notice (the "Early Termination Fee"). The Early Termination Fee shall
be as set forth in Schedule 2 existing on the Effective Date. If the Licensee reduces the number
of Licensed Fibers pursuant to this Section, Schedules 1 and 3 shall be amended to take into
account the reduced number of fibers.
Section 4.4. Termination by the County for Cause. Subject to the provisions of Section 4.6, the
County shall have the right to terminate this Agreement and/or any individual Licenses granted
hereunder on sixty (60) Days' written notice in the event any of the following:
4.4.1. Any of the Licensee's Equipment or the Licensed Fibers is maintained or
used in violation of any law or in aid of an unlawful act or undertaking.
4.4.2. The Licensee attaches to any portion of the County Network without
prior written authorization by the County.
4.4.3. The Licensee's insurance carrier notifies the Licensee or the County that
the policy or policies of insurance required under this Agreement have been cancelled, not
renewed, or amended so that the requirements under this Agreement will no longer be satisfied,
or, if the Licensee was self-insured, and the Licensee has ceased to be self-insured or the
Licensee’s self-insurance program is no longer certified or approved by the applicable
regulatory authority.
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4.4.4. The Licensee fails to pay any sum when due required by this Agreement.
4.4.5. Any authorization, permission or right that may be required by any
governmental or private authority for the construction, operation and maintenance of the
Licensee's Equipment or use of the License Fibers is denied, revoked, terminated or cancelled.
4.4.6. The Licensee's breach of the representations or warranties set forth in
Article 11 below.
4.4.7. The Licensee makes an assignment or transfer not specifically authorized
by this Agreement.
4.4.8. The Licensee fails to comply with any of the terms and conditions of this
Agreement, or defaults in any of its obligations thereunder, after any applicable cure period.
4.4.9. Any other acts, events, omissions or matters which pursuant to any other
section of this Agreement specifically give rise to the County's right of termination of this
Agreement.
Section 4.5. Termination by Licensee for Cause. Subject to the provisions of Section 4.6, the
Licensee shall have the right to terminate this Agreement and all Licenses granted hereunder
on sixty (60) Days' written notice to the County in the event of any of the following:
4.5.1. The County Network is constructed or maintained in violation of any law
or in aid of an unlawful act or undertaking.
4.5.2. The County fails to comply with any of the terms and conditions of this
Agreement, or defaults in any of its obligations thereunder.
4.5.3. Any authorization, permission or right that may be required by any
governmental or private authority for the construction, operation and maintenance of the
County Network is denied, revoked, terminated or cancelled.
4.5.4. The breach of any of the representations or warranties set forth in Article
8 below.
4.5.5. Any other acts, events, omissions or matters which pursuant to any other
section of this Agreement specifically provide the Licensee a right to terminate this
Agreement.
Section 4.6. Cure Period. Upon the receipt of a written notice of termination pursuant to
Sections 4.4 and 4.5, the breaching Party shall take corrective action as necessary to eliminate
the breach and shall confirm in writing to the non-breaching Party that such corrective action
has been completed within sixty (60) Days of receipt of a notice of termination. If the
12
breaching Party fails to discontinue or correct the breach or fails to give the required written
confirmation to the non-breaching Party within such sixty (60) Day period, this Agreement and
all Licenses granted hereunder shall automatically terminate without the necessity of any
further notice from either Party.
Section 4.7. Termination By County For Convenience. Notwithstanding any provision in this
Agreement to the contrary, the County has the right to terminate this Agreement, without
further obligation and without any liability whatsoever, if the County determines that such
termination is in the County's best interest. Any individual License for specific Licensed
Fibers may also be terminated at any time if the County determines that such termination is in
the County's best interest. Except in the event of an emergency involving public health,
safety, welfare, or as required by applicable law, any such termination shall be effected by the
delivery to the Licensee of a written notice of termination at least sixty (60) Days before the
date of termination, specifying the date upon which such termination becomes effective. The
County shall reimburse the Licensee for a pro rata share of any License Fees for the affected
Licensed Fibers that were previously paid by the Licensee for any period extending beyond the
effective date of the termination. Such reimbursement shall be due thirty (30) Days after the
effective date of the termination, provided that Licensee has cooperated with the County
regarding the prompt disconnection and, if applicable, the removal of all of the Licensee’s
Equipment affected by the termination.
Section 4.8. Termination in Case of Force Majeure.
4.8.1. If a Force Majeure event causes damage to the Licensee's Equipment
located within Arlington County such that the Licensee determines that the Licensee's
Equipment cannot be repaired, restored or replaced at a reasonable cost within ninety (90)
calendar Days after the Force Majeure event, the Licensee may elect to terminate this
Agreement effective thirty (30) Days after written notice to the County.
4.8.2. If a Force Majeure event causes damage to the Licensed Fibers such that
the County determines that the Licensed Fibers cannot be repaired, restored or replaced at a
reasonable cost within ninety (90) calendar Days after the Force Majeure event, the County
may elect to terminate this Agreement effective thirty (30) Days after written notice to the
Licensee.
Section 4.9. Obligations Upon Expiration or Termination. Upon the expiration or earlier
termination of this Agreement or of an individual License, the Licensee shall immediately
cease to use any of the affected Licensed Fibers. In addition, upon such expiration or
termination, or the rejection of an Application for Additional Licensed Fibers if the Licensee
was engaged in the unauthorized use of Licensed Fibers as set forth in Section 1.10, the
Licensee shall promptly, at its sole cost and expense, cause the Licensee's Equipment to be
disconnected from the County Network and the Licensed Fibers and shall remove the
Licensee's Equipment from the County’s property. Under no circumstances shall the Licensee
remove, cut, alter, tamper with or otherwise damage or interfere with the Licensed Fibers or
any component of the County Network in the course of, or as a consequence of, the
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disconnection and removal of the Licensee’s Equipment. If the Licensee fails to remove the
Licensee's Equipment within thirty (30) Days of the effective date of expiration, termination,
or rejection of an Application for Additional Licensed Fibers, the County shall have the right to
disconnect and remove the Licensee's Equipment without further notice to the Licensee, and
without liability to the Licensee or third parties, including the Licensee's creditors, for any
damage to the Licensee's Equipment or resulting from the removal of the Licensee's
Equipment. In such events, the County may draw upon the security fund to reimburse the
County for the cost of disconnection. Alternatively, the County may charge the Licensee for
such cost and, upon receipt of an invoice therefore, the Licensee shall promptly pay to the
County such cost.
Section 4.10. County’s Right to Use Licensed Fibers Upon Termination. Immediately upon
the termination of this Agreement or any individual License, the County shall have the right to
use the Licensed Fibers, or to license the Licensed Fibers to another entity, subject only to the
Licensee’s rights and obligations with respect to the timely disconnection and removal of the
Licensee’s Equipment.
Section 4.11. No Rights of Licensee after Expiration or Termination. The Licensee shall have
no rights in the Licensed Fibers, the Interconnection Fibers, or the Interconnection Points or
any other element of the County Network after the termination or expiration of this Agreement.
If the Licensee desires to thereafter obtain permission to use any such County-owned facilities
after the expiration or termination of this Agreement, the Licensee shall apply for a new license
agreement under the then-applicable procedures.
Section 4.12. Receivership and Foreclosure.
4.12.1 At the option of the County, this Agreement shall be deemed terminated
one hundred twenty (120) calendar Days after the appointment of a receiver or trustee for the
Licensee, unless (a) the receivership or trustee is vacated within one hundred (120) Days of
such appointment; or (b) the receiver or trustee has, within one hundred (120) Days of
appointment, fully complied with all terms and conditions of this Agreement and has remedied
all defaults under this Agreement
4.12.2 If there is a foreclosure or an involuntary sale of the whole or any part of
the Licensee's Equipment, the County may provide a written notice of termination of this
Agreement to Licensee and to the purchaser or successor to the Licensee's Equipment. The
termination of this Agreement shall be effective thirty (30) Days after the date of delivery of
such notice of termination, unless (a) the County, in its sole discretion, has approved in writing
the transfer of this Agreement, and (b) the purchaser or successor has agreed in writing to be
bound by all the terms and conditions of this Agreement.
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ARTICLE 5
Location of and Access to County Facilities
Section 5.1. No Construction. Except as expressly provided in this Agreement, the County
shall not be required to construct or install any facilities for, or on behalf of, the Licensee.
Notwithstanding the foregoing, if the Licensee requests the installation of Additional
Interconnection Points, the County may install such Additional Interconnection Points, subject
to payment of the Connection Fees and any Interconnection Costs pursuant to Article 3. The
County shall not be required to route the Licensed Fibers to any specific Utility Pole or
Conduit or other infrastructure, or to construct or install a specific Utility Pole or Conduit or
appurtenant facility for the deployment of the Licensed Fibers or the Licensee's Equipment.
The County makes no representation with respect to the location of any Utility Pole or Conduit
or any infrastructure required for the operation or use of the Licensed Fibers. Other than the
locations of Interconnection Points set forth in Schedule 1, the Licensee acknowledges that the
County does not make any representation regarding the location of any Utility Pole or Conduit
or any infrastructure appurtenant to the County Network, the accuracy of any maps, schematic
drawings or plans, or the approximate length in miles and route of the County Network.
Section 5.2. Access to County Network. All work on the County Network, including
constructing, lashing, and splicing, shall be performed exclusively by the County or its
approved contractors. The County shall provide the Licensee access to the Licensed Fibers at
the Interconnection Points, provided that the Licensee, through a County-approved contractor,
shall splice all interconnections between the County Network and the Licensee's Equipment.
The County shall have the sole discretion to determine the standards and methods by which
Strands enter and exit the County Network and connect to the Licensee's Equipment, consistent
with applicable Laws, Underlying Rights and Codes. The Licensee, at its sole cost and
expense, shall provide sufficient fiber optic cable and other materials necessary to reach the
Interconnection Points and allow for connections to the Licensed Fibers.
Section 5.3. Location of Licensed Fibers and Interconnection Points. The location of the
Interconnection Points, the Interconnection Fibers, and the Licensed Fibers, or any portion
thereof, shall be as-built upon completion of construction. All maps, drawings, and other
representations of the County Network (or any portion thereof) provided to Licensee or
contained herein are intended for generally illustrative purposes only. Except as provided
herein, the County makes no representations or warranties with regard to the precision or
accuracy of maps, drawings or illustrations of the County Network or any portion thereof.
Section 5.4. County’s Right to Relocate. The County shall have the right to relocate or modify
the routing and location of the County Network or any portion thereof for any reason. In the
event that relocation requires the removal, resplicing, or reconnection of any of the Licensee's
Equipment, upon at least ten (10) Days prior written notice to the Licensee, the County shall
have the right to disconnect the Interconnection Fibers from the Licensee’s Equipment, and
shall promptly remove or relocate the Licensee's Equipment at the Licensee's sole cost and
expense. Notwithstanding the foregoing, if the relocation of the Licensee's Equipment is
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required solely as a result of the County's violation of Laws or Codes or the County's breach of
any Underlying Rights, as finally determined by a court of competent jurisdiction, the County
shall pay or shall reimburse to the Licensee the reasonable cost of relocation of the Licensee's
Equipment.
Section 5.5. Collocation of County Network Users. The County shall not be restricted by the
terms of this Agreement from granting or renewing the contractual rights of any third party for
use of the Available Fiber, other than the Licensed Fibers. The Licensee acknowledges that its
right to use the Interconnection Points is not exclusive, and the Interconnection Points may be
shared with other users. The Licensee shall cooperate with thirdparty users of the County
Network to the full extent of standards set by the Codes and common practices applied by the
telecommunications industry in Virginia.
Section 5.6. Licensee's Work. The Licensee, at its sole cost and expense, shall obtain all
necessary permits and other authorizations required by the County and other applicable
government entities before commencing any work in the County’s Rights-of-Way or the Public
Rights-of-Way. The Licensee, its contractors, and their respective employees shall comply
with all applicable safety requirements and construction Codes and standards. Nothing in this
Agreement shall be deemed to waive or suspend any such requirement. The Licensee shall
notify the County in writing (email is acceptable) 72 hours prior to commencing work, in any
such Rights-of-Way, on any of the Licensee's Equipment connected to the County Network.
The Licensee's work shall not interfere with, disrupt, or adversely affect the County Network
or any authorized third party's use thereof, or the operations, facilities, or services of any
affected Facility Third Party. The Licensee shall ensure that work performed by or on behalf
of the Licensee and its agents on the Licensee's Equipment satisfies the work qualification
requirements set forth in the Administrative Rules, and conforms in all other respects to the
Administrative Rules. The Licensee shall ensure that all work done on the Licensee’s behalf in
connection with the installation of facilities to be connected to the County Network at an
Interconnection Point shall be performed by contractors selected from a list of contractors
previously approved by the County. The Licensee shall be solely responsible to the selected
contractor for the cost of installation. No work will be done without the presence of a County
inspector.
Section 5.7. The County’s Work. The County shall notify the Licensee prior to commencing
work affecting the Licensed Fibers, as provided in the Administrative Rules. The County’s
work shall not interfere with, disrupt, or adversely affect the Licensee's use of the Licensed
Fibers, except as necessary for the installation, maintenance, repair, replacement, removal, and
relocation of the County Network. The County's work on the County Network shall conform
to the Administrative Rules.
Section 5.8. Inspections. The County shall have the right, but not the obligation, to have a
representative present when the Licensee performs any work on the Licensee's Equipment.
The County's representative shall have the right to order that work be stopped or order
immediate modification to any work, if the representative in his or her reasonable discretion,
determines that the work would materially interfere with or damage the County Network, the
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rights of third-party licensees of the County Network, any Utility Pole or Conduit, or property
of any Facility Third Party, or violate any Laws, Codes or Underlying Rights. The County, its
elected and appointed officers, officials, employees, and contractors shall have no liability for
any claim, cost, loss or damage resulting from any stop-work order, modification order, or any
other determination, omission or action of the County's representative. This Section shall not
be construed to impose any duty, obligation or liability on the County.
Section 5.9. No Access to County Property by Licensee. Other than as authorized in this
Agreement or applicable law, including the County Code and related permitting procedures
governing access to, use of, or work in the County Rights-of-Way, the Licensee shall not
access, directly or indirectly, (i) the County Network, or any part thereof, or any other utility
facility on the County's side of the Interconnection Points, or (ii) any building or other real
property owned or controlled by the County. Unauthorized access by the Licensee to, or use
of, the County Network, or any other utility facility shall constitute a material breach of this
Agreement.
Section 5.10. Continuing Right of County To Enter County Facilities. Nothing in this
Agreement limits the County’s authority to enter, occupy, or perform work in, or in the vicinity
of, any County Facilities, including without limitation the Licensed Fibers, the Interconnection
Fibers, and the Interconnection Points.
ARTICLE 6
Licensee’s Equipment
Section 6.1. Licensee’s Equipment. The Licensee shall at its own cost and expense construct
or cause to be constructed (i) any infrastructure required to connect the Licensee’s Network to
the County Network; and (ii) any Licensee Laterals and other facilities required to serve the
Licensee’s customers at locations in Arlington County. The Licensee shall be responsible for
installation and interconnection of conduit, fiber, splice cases and other attendant structures
and equipment to and within structures located on Licensee's side of the Interconnection
Points.
Section 6.2. Access to Licensee’s Equipment.
6.2.1. From time to time, access to the Licensee’s Equipment may facilitate
scheduled and non-scheduled maintenance and repair work associated with the County
Network, including without limitation the Licensed Fibers and related Interconnection Points.
The Licensee will cooperate with the County to allow access by the County, its employees, and
its contractors to the Licensee’s Equipment for maintenance and repairs to the County
Network.
6.2.2. So long as an emergency situation does not exist, the County shall
provide a written request to the Licensee at least seventy-two (72) hours in advance of any
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required access to the Licensee’s Equipment. If an emergency situation exists, the County shall
provide notice by any reasonable means of the need for access to the person identified pursuant
to Schedule 5, but the County may proceed to address the emergency without express
authorization from the Licensee, if a timely response is not received by the County.
Section 6.3. County’s Right of Inspection. The County shall have the right to inspect the
Licensee’s Equipment. The County shall provide Licensee with fifteen (15) Days advance
written notice of any inspection request and any inspection shall be performed only during
ordinary business hours. Each Party shall bear its own costs related to any examination. The
Licensee shall cooperate with the County in granting access to its facilities, and the Licensee
shall have the right to have a representative present throughout any inspection.
ARTICLE 7
Technical Specifications
Section 7.1. Cable Specifications. The Available Fiber consists of fiber optic cable specified to
the standards set forth in Exhibit B herein. The County shall have the right to install, replace
or modify any or all sections of the Available Fiber with any other type, brand, or quality of
fiber optic cable so long as the specifications are within commonly accepted industry standards
and provide substantially the same technical capacity and facility, without compromise to the
Licensee's use of the Licensed Fibers.
Section 7.2. Construction and Splicing. The construction of the County Network and all fiber
splicing performed by the County or the Licensee shall meet the standards of Exhibit B, as well
as all applicable Laws and Codes.
ARTICLE 8
Permits and Compliance
Section 8.1. Governmental Approvals. The Licensee, at its sole cost and expense, shall
obtain and maintain, or cause to be obtained and maintained, all federal, state, local and
commercial permits, approvals and consents necessary for the Licensee's entry upon land of the
County and others, work on or within such land, and use of the Licensed Fibers and the
Interconnection Points. The County shall obtain and maintain, or cause to be obtained and
maintained, all federal, state, local, and commercial permits, approvals and consents necessary
for construction and operation of the County Network and take commercially reasonable
actions to keep the County Network in compliance with all Laws until all Licenses terminate.
Section 8.2. Certification. Upon request of the County, the Licensee shall certify that it has all
permits, approvals and consents necessary for entry upon land or its use of the Licensed Fibers.
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ARTICLE 9
Acceptance and Activation
Section 9.1. Testing and Acceptance of Licensed Fibers. Before issuing any Notice of
Availability for any Licensed Fiber or Interconnection Fiber, the County shall have performed
acceptance tests to determine whether the respective Licensed Fibers meet the technical
specifications described in Exhibit B. The County shall provide the Licensee with written
results of such tests with the Notice of Availability, and the Licensee shall be deemed to have
accepted the Licensed Fibers or Interconnection Fibers ten Days after receipt of the respective
Notice of Availability (the “Acceptance Date”) unless it notifies the County in writing within
such ten Day period that it does not accept the Licensed Fibers or Interconnection Fibers. In
such event, the County shall repair or substitute fibers that do not meet the required tests and
specifications and provide written notice of such repair or substitution, and the Acceptance
Date shall then be ten Days after Licensee’s receipt of such notice.
Section 9.2. Activation of Licensed Fibers. The Licensee has sole responsibility for the
activation of the Licensed Fibers, Interconnection Fibers, and associated facilities. The County
shall not have the responsibility for the payment of any utilities, connection, and service fees
that are required for the operation of the Licensed Fibers Interconnection Fibers.
Section 9.3. Irrevocable Acceptance of Licensed Fibers. Licensee's initial payment of the
annual License Fee pertaining to any Licensed Fiber, whether Initial Licensed Fiber or
Additional Licensed Fiber, shall be deemed to constitute Licensee's irrevocable acceptance of
such Licensed Fiber and any associated Interconnection Fibers.
Section 9.4. No Warranty by County. The County makes no warranty, express or implied,
regarding the quality of any signal transmitted over the Licensed Fibers or the Interconnection
Fibers.
ARTICLE 10
Maintenance and Repair of County Network
Section 10.1. Maintenance. The County shall schedule and perform periodic maintenance
checks on the County Network, including the Licensed Fibers, Interconnection Fibers, and
Interconnection Points, at its sole cost and expense. The County shall make routine repairs on
the County Network in the course of regularly scheduled maintenance. The County shall
maintain the County Network in good operating condition throughout the term of this
Agreement.
Section 10.2. Repairs. The County shall correct any failure or impairment of the Licensed
Fibers or other portions of the County Network, subject to the requirements of the
Administrative Rules.
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Section 10.3. Routine Monitoring.
10.3.1. The County shall monitor at least one unlicensed fiber in the Licensed
Fiber Conduit for cable continuity on a 24-hour Day, seven Days per week, basis. The County
shall not monitor the Licensed Fibers. Where routine monitoring reveals a potential
maintenance issue, each Party shall, with regard to their respective facilities, take reasonable
and timely steps to address the issue prior to it affecting the operation or functionality of their
respective facilities.
10.3.2. The Licensee may conduct independent diagnostic testing, fault
isolation, repair verification, and end-to-end network testing, as it deems appropriate, on the
Licensee's side of the Interconnection Points. The Licensee may notify the County in writing if
the Licensee determines, as a result of its independent testing and surveillance programs or
otherwise, that any part of the Licensed Fibers or Interconnection Fibers does not conform to
its performance standards. The Parties shall confer to expedite trouble resolution and resolve
possible differences in interpretation of trouble reports.
Section 10.4. Notification by County of Anticipated Disruption. In the event that that the
County anticipates a disruption, or potential disruption, to the Licensee's use of the Licensed
Fibers or Interconnection Fibers due to maintenance or repair of the County Network, the
County shall provide written notice thereof to the Licensee and use commercially reasonable
efforts to schedule the maintenance to minimize any effect on the Licensed Fibers or
Interconnection Fibers.
Section 10.5. Maintenance of Licensee's Equipment. The County shall have no obligation to
operate, maintain, or repair the Licensee's Equipment. The Licensee shall periodically inspect
the Licensee's Equipment and shall keep, operate, maintain and repair the Licensee's
Equipment in accordance with Laws, the Codes and Underlying Rights at the Licensee's sole
expense.
Section 10.6. Outages.
10.6.1. In the event of any unscheduled outage, the Licensee shall first perform
the troubleshooting steps as set forth in the Administrative Rules. If, thereafter, the outage is
not eliminated, then the Licensee shall notify the County and the County shall immediately
perform an assessment of the outage. Upon completion of such assessment by the County, the
County shall notify the Licensee, as soon as reasonably practicable, of the results of such
assessment and include in its notice to the Licensee the nature and cause of the outage, the
extent of the repairs required, and the estimated time to restore.
10.6.2. The County further agrees to use its best efforts to restore the provision
of the Licensed Fibers and Interconnection Fibers, on an expedited basis, and to restore and
any splicing of the Licensed Fibers and Interconnection Fibers in a systematic manner, with the
Licensed Fibers having equal priority to other Strands within the Licensed Fiber Conduit. The
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County further agrees that it shall dispatch repair technicians to the affected site within 2 hours
from the Licensee's notification of outage to the County. All permanent repair work on the
Licensed Fibers and Interconnection Fibers shall be performed by the County or its contractors
during a maintenance window mutually agreed upon by the Parties.
10.6.3. If an outage exceeds 8 hours, except in the case of a Force Majeure,
then the County shall give the Licensee a credit equal to one Day's License Fee for the Strands
affected (to be considered 1/30th of the then current monthly rate) for each consecutive 8 hour
outage interval, or fraction thereof, in excess of the initial 8 hours. (E.g., 8 hour outage = 1 Day
credit; 10 hour outage = 2 Days credit; 17 hour outage = 3 Days credit). The credit shall apply
whether or not the Licensee dispatched repair technicians to the repair site, and shall constitute
an offset against or refund of the Licensee’s payment of License Fees to the County.
Section 10.7. Emergency Repairs.
10.7.1. If at any time, in case of emergency or disaster, it shall become
necessary in the reasonable judgment of the County to cut or move any part of the County
Network, including without limitation any of the Licensed Fibers, the Interconnection Fibers,
or any Interconnection Point, the County shall have the right to do so without incurring any
liability or obligation whatsoever, provided, however, that the County shall restore any portion
of the County Network, including without limitation any of the Licensed Fibers, the
Interconnection Fibers, or any Interconnection Point, that has been cut or removed as soon as
commercially practicable.
10.7.2. The County shall provide all equipment, manpower, supervision,
certified fiber optic splicers, consumable materials, equipment, tools, construction equipment
and machinery, utilities, transportation, any and all applicable taxes, and other facilities and
work as necessary for the proper execution and completion of temporary and permanent
emergency restoration of the County Network, including without limitation any of the Licensed
Fibers, the Interconnection Fibers, or any Interconnection Point (“Emergency Repairs”).
10.7.3. In conducting Emergency Repairs, the County shall provide emergency
response and restoration services, including appropriate supervision, technical expertise, labor,
equipment, and materials to assess and restore functionality to the County Network whenever
necessary. Emergency Repairs provided in this section do not apply to facilities not owned by
the County.
10.7.4. Execution of the Emergency Repairs shall include, at a minimum, the
ability of the County to respond as required herein upon report of damage to the County
Network, and to perform:
10.7.4.1. Underground and aerial defect discovery work to ascertain the
extent of damage to fiber optic cables and/or facilities;
10.7.4.2. Underground trenching and placement and repair of the
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County Conduit and other County Facilities;
10.7.4.3. Placement of underground fiber optic cable and facilities in
the County Conduit; and
10.7.4.4. Splicing, termination and testing of fiber optic cable.
10.7.5. The County agrees to provide, at the County’s cost and expense, and the
Licensee agrees to accept, service according to the following standards:
10.7.5.1. For purposes of this Section 10.7, an “emergency” is defined
as an abrupt failure of the County Network. The County will provide emergency restoration
services to splice or bridge around the fiber failure. These services will be provided for all fiber
optic cable up to and including panel terminations.
10.7.5.2. The County will provide, consistent with Schedule 5, a
designated point of contact available by direct telephone service to initiate restoration service
and from that point on will provide a designated point of contact by direct telephone service at
the restoration site until all temporary or permanent restoration is complete. The Licensee will
provide an authorized representative as a designated point of contact to the County to exchange
required communications regarding restoration during the emergency service.
10.7.5.3. The County shall provide emergency restoration services for
the County Network. Emergency restoration services will be available 7 Days/week, 52
weeks/year, 24 hours/Day, including holidays.
10.7.5.4. The County will initiate (no less than hourly and on demand)
status reports to the designated the Licensee's representative during emergency temporary
restoration. The County will communicate all information regarding the condition and
restoration through the County’s designated point of contact.
10.7.5.5. Emergency restoration services are in support of the County
Network only. This Agreement does not provide support for the Licensee’s Equipment.
10.7.5.6. After temporary restoration is complete, a permanent repair
and site restoration plan will be proposed by the County within two (2) Days. Upon the
County’s approval, this work will be scheduled and initiated by the County.
ARTICLE 11
Covenants, Representations and Warranties
Section 11.1 Licensee’s Covenants. Except as expressly authorized by applicable Laws or this
Agreement, in the exercise and performance of its rights and obligations under this Agreement,
the Licensee covenants and agrees that as of the Effective Date and at all times during the
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Term:
11.1.1. The Licensee shall comply with all applicable federal, state and local
laws in the exercise and performance of its rights and obligations under this Agreement. The
Licensee shall comply with any County permit or authorization issued to the Licensee in
connection with the location of Licensee's Equipment, including without limitation the
Licensee’s Laterals, or Licensee’s Network within the Public Rights-of-Way. The Licensee
shall obtain, as required, any and all necessary approvals for the design, construction,
installation, operation and testing of the Licensee's Equipment, Licensee’s Laterals, or the
Licensee’s Network to be located within the County.
11.1.2 The Licensee shall not interfere in any manner with the existence and
operation of any and all private, County, or Public Rights-of-Way, sanitary sewers, water
mains, storm drains, gas mains, poles, aerial and underground electric and telephone wires,
electroliers, cable television, and other telecommunications, utility, and County Facilities
without the express written approval of the owner or owners of the affected property,
properties, or facilities. Licensee shall not do or permit anything to be done by anyone under its
direct control or doing work on its behalf, other than the County, its employees, subcontractors,
and agents, to do anything that which may in any way obstruct or interfere with the rights of
any person located within the Public Rights-of-Way or County Rights-of-Way, or injure them,
or use or allow the Public or County Rights-of-Way to be used by anyone under its direct
control or doing work on its behalf for any improper or unlawful purpose.
11.1.3 The Licensee shall keep all parts of the County Network free of any
liens that may be created or which may attach as the result of the acts or omissions of the
Licensee, its employees, subcontractors or agents. If such a lien is filed, the Licensee shall
immediately cause such lien to be removed or released and shall indemnify, hold harmless, and
defend the County from any and all costs to remove such lien including, but not limited to,
reasonable attorneys' fees.
11.1.4. The Licensee shall not do, or permit anything to be done, by anyone
under the Licensee’s direct control or doing work on its behalf, other than the County, its
employees, subcontractors, and agents, in, on or about the County Network, or the Licensee's
Equipment located within the County, which is prohibited by, or will in any way conflict with,
any Laws. However, if any laws, rules, ordinances, resolutions, or other regulations which are
enacted or promulgated by a governmental entity (other than the County) after the Effective
Date of this Agreement materially interferes with the Licensee's rights hereunder, the Licensee
shall have the right to terminate this Agreement without penalty.
11.1.5. The Licensee shall not, in connection with this Agreement, commit,
cause, maintain or permit, nor suffer, or allow to be committed, caused, maintained or
permitted by anyone under its direct control or doing work on its behalf, other than the County,
its employees, subcontractors, and agents, any waste, abuse or destructive use within the
County Rights-of-Way, nor any public or private nuisance, nor any other act or thing which
may disturb the quiet enjoyment of any other person lawfully using the County Rights-of-Way,
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11.1.6. The Licensee shall be solely and fully responsible for the reporting of all
hazardous materials releases to the appropriate agencies, when such releases are caused by, or
result from, the Licensee's activities or by anyone under its direct control or doing work on its
behalf, other than the County, its employees, subcontractors, and agents. The Licensee shall
take all necessary precautions to prevent any hazardous materials used by the Licensee or by
anyone under its direct control or doing work on its behalf, from entering into any storm or
sewage drain system or from being relicensed within the County Rights-of-Way. The
Licensee shall be solely responsible for any cleanup and/or remediation required by Laws or
any federal, state or local entity or agency.
Section 11.2. Licensee’s Representations and Warranties. The Licensee represents and
warrants to the County that:
11.2.1. The Licensee is duly organized, validly existing, and in good standing in
its state of organization, and authorized to do business in Virginia.
11.2.2 The Licensee is fully authorized by all necessary and appropriate
organizational actions to enter into this Agreement, and the Agreement is fully enforceable
according to its terms.
11.2.3. Execution and performance by the Licensee of the Agreement will not
constitute a breach of any other agreements to which the Licensee is a party.
11.2.4. No further consents or approvals are required from any third party or
governmental agency, as a condition to the execution, delivery and performance of this
Agreement, including the Licensee's performance under any License granted hereunder.
11.2.5. The Licensee shall comply with all Laws, Codes and Underlying Rights.
Without limiting the foregoing, the Licensee warrants that to the extent applicable, the
Licensee holds a Federal Communications Commission license exempting the Licensee's
Equipment from the requirements of 47 C.F.R. § 15.1 et seq., or, in the alternative, that the
Licensee's Equipment conforms to the requirements of 47 C.F.R. § 15.1 et seq.
Section 11.3. County’s Representations and Warranties. The County represents and warrants
to the Licensee that:
11.3.1. The County is duly organized and validly existing as a political
subdivision of the Commonwealth of Virginia.
11.3.2. The County is fully authorized by all necessary and appropriate
organizational actions to enter into this Agreement.
11.3.3. Upon issuance of a Notice of Availability for any Licensed Fiber,
Interconnection Fiber, or Interconnection Point, the County will have obtained all necessary
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easements, licenses or consents from any third party or governmental agency for that Licensed
Fiber, except for any easements, licenses or consents required for the installation and
maintenance of the Licensee's Equipment.
ARTICLE 12
Liability
Section 12.1. Limitation of the County’s Liability. THE COUNTY SHALL NOT BE
LIABLE TO THE LICENSEE OR ANY OTHER PERSON, FIRM OR ENTITY FOR ANY
INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES,
OR FOR ANY LOST PROFITS OF ANY KIND OR NATURE WHATSOEVER ARISING
OUT OF THIS AGREEMENT. NO WARRANTIES OF ANY KIND APPLY TO THE
COUNTY NETWORK OR THE COUNTY’S PERFORMANCE UNDER THIS
AGREEMENT. THE COUNTY MAKES NO WARRANTY, EXPRESS, IMPLIED OR
STATUTORY, AS TO THE DESCRIPTION, QUALITY, MERCHANTABILITY,
COMPLETENESS OR FITNESS FOR ANY PURPOSE OF THE LICENSED FIBERS OR
THE COUNTY NETWORK AND APPURTENANT COUNTY FACILITIES.
Section 12.2. Limitation of Licensee's Liability. THE LICENSEE SHALL NOT BE LIABLE
TO THE COUNTY FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL,
OR PUNITIVE DAMAGES, OR FOR ANY LOST PROFITS OF ANY KIND OR NATURE
WHATSOEVER ARISING OUT OF THIS AGREEMENT. Nothing in this Section 12.2 shall
limit the Licensee's obligation to indemnity, hold harmless, release, and defend the County, its
elected and appointed officials, officers, employees, and contractors from claims of any kind
arising out of the acts or omissions of the Licensee.
Section 12.3. Force Majeure. Subject to Article 15, neither Party shall be liable to the other in
any manner for any delays or failure to complete construction for reasons constituting a Force
Majeure.
Section 12.4. Electrical Outages. Inability to use the Licensed Fibers or Interconnection
Fibers due to an electrical power outage is not covered by this Agreement. This Agreement
merely provides to the Licensee permission to use Dark Fiber.
Section 12.5. Damage Caused by Third Parties. The County is not liable to the Licensee for
damage to the County Network, the Licensed Fibers, the Interconnection Fibers, any
Interconnection Point, or the Licensee’s Equipment that is caused by third parties. The County
will respond to and repair, or cause others to respond and repair, any damage to the County
Network that is caused by third parties that are engaged in construction or other business
operations in the County Rights-of-Way as if it were an Emergency Repair under Section 10.7.
Section 12.6. Damage to Facilities.
12.6.1. Damage to County Network. The Licensee shall exercise reasonable
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care to avoid causing damage to the County Network, any portion thereof, or any other County
Facilities; any Utility Pole or Conduit, or other property owned by Facility Third Parties that
may be connected to or appurtenant to the County Network; or to any equipment or facilities of
the County’s third-party invitees. The Licensee and not the County shall be liable for any loss
or damage to the County Network or any portion thereof, to any other County Facilities, or to
Utility Poles, Conduit, or Facility Third Party property, that is caused by the Licensee's
employees, agents or contractors. The Licensee shall immediately report to the County any
such loss or damage and shall reimburse the County or any damaged third party or parties for
all actual costs incurred by the County or a damaged third party in making repairs or
replacements, whichever is reasonably required, within ten (10) Days of receiving reasonably
detailed documentation of such costs. The Licensee shall also be liable to the County for the
reasonable cost to repair any damage to the County Network, or any component part thereof, or
any other County Facilities, resulting from the operation and maintenance of the Licensee's
Equipment. The Licensee's payment for damage, or reimbursement for repair or replacement,
shall not be set-off from any amount due and payable under this Agreement.
12.6.2. Damage to Licensee's Equipment. The County shall exercise reasonable
care to avoid causing damage to the Licensee's Equipment. The Licensee shall not be
responsible for any direct damage to the Licensee's Equipment to the extent caused solely by
the County’s employees, invitees, agents or contractors.
12.6.3. Actions Against Third Parties. Except as otherwise set forth in this
Agreement, nothing contained herein shall be construed as a limitation on the right of any
Party to bring an action for damages against a third party.
Section 12.7. Licensee’s and Licensee’s Contractor’s Insurance. Before commencing work
on, or in the vicinity of, any aspect of the County Network, any Utility Pole or Conduit, or the
Interconnection Points, the Licensee or its approved contractors shall deliver to the County
certificates of insurance, meeting the requirements of this Agreement, to show that the
following minimum coverages are in effect. The Licensee shall require each of its contractors,
performing work on the County Network and/or the Licensee’s Equipment, to keep in full
force and effect, during the Term of this Agreement, the insurance required by this Article.
The Licensee and its contractors shall include the County and its elected and appointed
officials, officers, boards, commissions, commissioners, agents, and employees as additional
insureds for any claims or liability arising out of this Agreement. The Licensee shall notify the
County if any of its policies are replaced by policies that do not provide comparable coverage
to those set forth below. Prior to the Effective Date of this Agreement, and at the beginning of
each year thereafter throughout the Term, the Licensee shall deliver to the County certificates
of insurance indicating that the insurance required by this Article is prepaid for a one year
policy period, and that insurance policies insure all activities of the Licensee and its contractors
contemplated under this Agreement.
12.7.1. Workers' Compensation. With respect to all work and operations
performed under this Agreement, the Licensee shall carry workers' compensation insurance in
accordance with the laws of the Commonwealth of Virginia.
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12.7.2. Commercial General Liability. With respect to all work and operations
performed under this Agreement, the Licensee shall carry general liability insurance coverage
including, but not limited to:
Premises - Operations
Products and Completed Operations Bodily Injury Liability
Contractual Liability
Independent Contractors
The policy or policies shall be on an occurrence basis/form and policy coverage limits shall be
not less than:
$2,000,000 per Occurrence
$5,000,000 Annual Aggregate
$50,000 Fire/ Legal/Liability
12.7.3. Automotive Liability. The Licensee shall carry automotive liability
insurance covering all motor vehicles, including hired and non-owned coverage, used in
connection with this Agreement. Limits of coverage shall be: $1,000,000 combined single
limit.
12.7.4. Professional Liability Insurance. Before commencing work as
contemplated in this Agreement and throughout the term of the Agreement, the Licensee shall
cause its engineers and other design professionals who perform engineering or other
professional work related to the Licensee's design, installation and use of the County Network
and the Licensee’s Equipment to procure and maintain professional liability insurance for any
and all services so performed with minimum coverage of $2,000,000 per occurrence.
12.7.5 The insurance hereby required to be carried by this Agreement shall be
provided by an insurance company licensed to do business in the Commonwealth of Virginia
and rated not lower than A-VII in the A.M. Best Rating Guide.
The following definition of the term “County” applies to all insurance policies issued in
fulfillment of the Licensee’s obligations contained in this Agreement:
“The County Board of Arlington County, Virginia, its officers, elected and appointed
officials, employees, agents and contractors, and any affiliated or subsidiary Board,
Authority, Committee, or Independent Agency (including those newly or hereinafter
constituted), provided that such affiliated or subsidiary Board, Authority, Committee,
or Independent Agency is either a Body Politic Created by the County Board of
Arlington County, Virginia, or one in which controlling interest is vested in Arlington
County or Arlington County Constitutional Officers.”
The Licensee and its contractors shall disclose to the County the amount of any deductible or
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self-insurance component applicable to the General Liability, Automobile Liability,
Professional Liability, or any other policies required by this Agreement. The County reserves
the right to request and receive from the Licensee additional information to determine if the
Licensee and its contractors have the financial capacity to meet its obligations under a
deductible to ensure protection for the County.
12.7.6. Notwithstanding any of the above, the Licensee may satisfy its
obligations under this Article by means of self-insurance for all or any part of the insurance
required, provided that the Licensee can demonstrate financial capacity and the alternative
coverages are submitted to and acceptable to the County Risk Manager. Upon request, the
Licensee shall provide its most recent actuarial report and provide a copy of its self-insurance
resolution to the Risk Manager to determine the adequacy of the insurance funding.
Section 12.8. County’s Insurance and Self Insurance. The County may, in its discretion,
require that any work on the County Network performed on its behalf is performed by persons
carrying insurance consistent with the requirements of Subsections 12.7.1 through 12.7.4.
Section 12.9. Indemnification by Licensee.
12.9.1. The Licensee shall, at its sole cost and expense, release, indemnify, hold
harmless, and defend the County, its elected and appointed officials, officers, boards,
commissions, commissioners, agents, and employees against any and all claims, suits, causes
of action (whether frivolous or otherwise), proceedings, and judgments for damages or
equitable relief arising out of the construction, maintenance, operation, or use of the Licensee’s
Equipment or the County Network; the acts, errors, or omissions of the Licensee or its agents,
employees or independent contractors; the conduct or presence of the Licensee’s business in
the County; or in any way arising out of the Licensee’s enjoyment or exercise of the rights
privileges granted by this Agreement, regardless of whether the act or omission complained of
is authorized, allowed, or prohibited by applicable law or this Agreement. The Licensee agrees
not to sue or to seek any monetary damages from the County, including the persons and entities
described in this subsection, in connection with the above-described acts or omissions.
12.9.2. The County and the Licensee shall each give to each other prompt
written notice of any claim or the commencement of any action, suit or other proceeding
covered by the provisions of this Section 12.9. The Licensee shall provide the defense of any
claims brought against the County, its elected and appointed officers, officials and employees,
under this section of the Agreement, subject to the terms of any applicable insurance policy,
and, subject to the consent of the County, which consent shall not be unreasonably withheld.
Nothing herein shall be deemed to prevent the County from cooperating with the Licensee and
participating in the defense of any litigation by its own counsel at its own cost and expense.
12.9.3. The Licensee shall not implead or join the County, its elected and
appointed officials, officers, boards, commissions, commissioners, employees, and agents in
any action against the Licensee arising out of the rights the Licensee enjoys under this
Agreement, unless a court of competent jurisdiction has determined that the County is a
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necessary party.
12.9.4. This indemnity provision shall survive the term of this Agreement for
acts of the Licensee committed while the Agreement was in effect or performed under color of
the Agreement after the expiration, revocation, cancellation, or termination of the Agreement.
12.9.5. Nothing in this Agreement shall be construed to waive the tort or any
sovereign, governmental, or other immunity or applicable defense of the County, and its
elected and appointed officials, officers, boards, commissions, commissioners, agents, and
employees, nor authorize or permit the Licensee or its insurer to do so.
ARTICLE 13
Default, Security Fund, and Remedies
Section 13.1. Termination Rights. The Parties each have the right to terminate this Agreement
in the event of default, after notice and opportunity to cure, pursuant to Article 4.
Section 13.2. Security Fund.
13.2.1. To ensure the performance of its obligations under this Agreement, the
Licensee shall establish a security fund in the form of a letter of credit in favor of the County, as
beneficiary, in an amount equal to 200% of the annual License Fee. The letter of credit shall be
in a form that is substantially similar to Exhibit D, and acceptable to the County. The letter of
credit shall be issued by a bank located in Northern Virginia. Presentment and payment shall be
authorized to be made at such bank or a branch thereof in Northern Virginia. In lieu of a letter
of credit, the County may accept a deposit of funds with the Treasurer, in an amount equal to
200% of the annual License Fee, to be held in trust for the benefit of the County. The letter of
credit or deposit of funds shall be submitted to the County prior to the execution of the License
Agreement by the County.
13.2.2. If the Licensee fails to make timely payment of any monetary amount
payable by the Licensee under the terms of this Agreement, the County shall give the Licensee
written notice of the failure to make timely payment. If the Licensee has not remedied such
failure within fifteen (15) Days of such notice, the County may withdraw the amount thereof,
as well as interest and any penalties, from the security fund.
13.2.3. Within three (3) Days after a withdrawal from a cash security fund, the
County shall mail to the Licensee, by certified mail, return receipt requested, written notification
of such withdrawal.
13.2.4. Upon termination of the Agreement, the balance then remaining in any
deposited cash security fund shall be returned to the Licensee, or in the case of a letter of credit,
such letter shall be released by the County, within ninety (90) Days of such termination, provided
that there is then no outstanding sum due from the Licensee.
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13.2.5. If at the time of a withdrawal from the letter of credit by the County, the
amounts available are insufficient to provide the total payment towards which the withdrawal is
directed, the balance of such payment shall continue as the obligation of the Licensee to the
County until it is paid. Within thirty (30) Days of being notified in writing that any amount has
been withdrawn by the County, the Licensee shall restore the letter of credit to the full face
amount of the letter of credit specified above.
Section 13.3. Remedies Cumulative. All remedies provided in this Agreement are
cumulative, exclusive and in addition to any remedies available at law or in equity. All
remedies may be exercised and enforced concurrently or sequentially as often as occasion
therefore may arise.
ARTICLE 14
Assignment and Sublicensing
Section 14.1. Assignment by the County. Upon written notice to the Licensee, the County
may assign this Agreement and all Licenses granted hereunder as permitted by applicable law.
Section 14.2. No Sublicense by Licensee. The Licensee shall not sublicense in whole or in
part (whether voluntarily or by action of law), directly, indirectly, or contingently this
Agreement, any individual License, or any interest in this Agreement or a License to any third
party.
Section 14.3. No Assignment; Exceptions. Notwithstanding anything in this Agreement to the
contrary, the Licensee shall not assign or otherwise transfer in whole or in part (whether
voluntarily or by action of law), directly, indirectly, or contingently this Agreement, any
License, or any interest herein without the County's prior written consent. Notwithstanding the
foregoing, the Licensee shall have the right to: (i) assign this Agreement and all of the Licenses
to the Parent of the Licensee or to another Affiliate of the Licensee having the same Parent as
the Licensee; (ii) assign the Licenses and this License Agreement to the Parent of the Licensee
or to an Affiliate of the Licensee having the same Parent as the Licensee; (iii) consummate any
transaction that is the result of a merger of the Parent of the Licensee; or (iv) consummate any
transaction that is the result of a merger of the Parent of the Licensee’s Parent, or any other
Parent entity in a direct line of ownership between the Licensee and the Licensee’s ultimate
parent entity.
14.3.1 For purposes of this Section 14.3, “Affiliate” means any Person
who, directly or indirectly, owns or controls, is owned or controlled by, or is under common
ownership or control with, the Licensee, and “Parent” means an entity that holds a majority
ownership interest in the another entity.
14.3.2 In the case of any assignment, regardless of whether consent of
the County is required, the assignee shall assume in writing the obligations, liabilities and
responsibility for all acts and omissions, known and unknown, of the incumbent Licensee
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under this agreement, for all purposes, and shall agree to abide by and accept all terms of this
Agreement and be bound by the terms of the Agreement. In the case of an assignment without
prior consent of the County under Section 14.3, the assignee shall, no later than thirty (30) days
after the consummation of such an assignment, submit to the County a written
acknowledgment affirming its obligations under this section. No assignment or attempted
assignment shall be valid, unless and until the County has received the written
acknowledgment of the assignee and acknowledged its receipt in writing. The County Manager
or their designee is authorized to approve assignment(s) on behalf of the County.
ARTICLE 15
Force Majeure
Section 15.1. Effects of Force Majeure. Neither Party shall be held responsible for failure to
perform the duties and responsibilities imposed by this Agreement if such failure is due to
Force Majeure, provided that the Party subject to Force Majeure complies with this Article 15.
Section 15.2. Notice of Force Majeure Event. A Party rendered unable to fulfill any of its
obligations by reason of a Force Majeure event shall give prompt written notice to the other
Party and full details of the event as soon as possible, but in no event later than five (5) Days
after the occurrence (unless additional time is required by virtue of Force Majeure).
Section 15.3. Exception for Payment of Fees. Nothing in this section shall excuse the
Licensee from the prompt payment of any License Fees, Connection Fees, Interconnection
Costs, Repair Costs, or any other charges that are required of Licensee by this Agreement or
any Laws.
Section 15.4. Time for Performance. The Party claiming Force Majeure shall exercise due
diligence to remove any inability caused by Force Majeure to perform acts required by this
Agreement. The time for performance hereunder shall be extended for a period of time
reasonably necessary to overcome the effects of delays caused by any Force Majeure event. In
the event any such failure or delay shall last for a period of more than one hundred eighty (180)
Days, then either Party may terminate this Agreement forthwith, without liability except as
accrued before the Force Majeure event, by notice in writing to the other Party.
ARTICLE 16
Abandonment
Section 16.1. Licensed Fibers, Interconnection Fibers, and Interconnection Points. The
Licensee shall not retain permission to use Licensed Fibers, Interconnection Fibers, or
Interconnection Points that are not in fact being used by the Licensee or to serve a customer of
the Licensee. If the County determines, pursuant to its right of inspection as provided in
Section 6.3 or otherwise, that any Licensed Fibers, Interconnection Fibers, or Interconnection
Points are not in use, the County shall have the right to declare by written notice to the
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Licensee that such facilities have been abandoned by the Licensee and are therefore subject to
being licensed to a third party at any time. The Licensee shall have the right to rebut any such
declaration by demonstrating in writing to the County’s reasonable satisfaction that in fact the
facilities in question have been used to transmit signals continuously within the thirty (30)
Days preceding such notice.
Section 16.2. Licensee Equipment Placed in County Rights-of-Way. On an annual basis, the
Licensee shall provide the County with a report describing any Licensee Equipment installed in
the County Rights-of-Way or on other County property that has been out of service for a period
of six (6) months or more. The Licensee is not required to submit such report if no Licensee
Equipment is out of service. Within ninety (90) Days after the Licensee’s receipt of written
notice from the County to remove such facilities, the Licensee shall promptly remove the
facilities at the Licensee’s cost and expense, if the Licensee has not already done so. If the
Licensee fails to remove any abandoned facilities as described in this Section, then the County
shall be entitled to remove the facilities from the County Rights-of-Way or County property,
unless the Licensee demonstrates to the County’s satisfaction that the Licensee has the right
under applicable law to maintain the facilities at their existing location. Upon receipt of an
invoice therefor, the Licensee shall reimburse the County for its reasonable and actual costs
and expenses for removals pursuant to this Section.
Section 16.3. Abandonment by the County. If the County desires at any time to abandon any
portion of the County Network, and such abandonment shall make any or all of the Licensed
Fibers, Interconnection Fibers, or Interconnection Points unusable, the County shall give the
Licensee notice in writing to that effect promptly after the County decides to abandon any such
facilities, but in no event less than ninety (90) Days’ prior to the date on which the County
intends to abandon the facilities. If the Licensee has need for such facilities to remain in place,
the County may, at its sole discretion, transfer ownership of the facilities to the Licensee for a
mutually agreed price, and the Licensee shall indemnify, defend, release and hold harmless the
County, its elected and appointed officers, employees, and contractors from obligation,
liability, damages, costs, expenses or charges incurred thereafter in connection with such
facilities. It is not the intent of this provision to place an obligation upon the County to transfer
or sell any such abandoned facilities to the Licensee or to any other person or entity.
ARTICLE 17
Taxes
Section 17.1. General. The Licensee shall pay when due all federal, state and local taxes and
assessments applicable to the Licensee’s real and personal property, including, without
limitation, Licensee’s Equipment.
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ARTICLE 18
Provisions Related to Various Laws
Section 18.1. County Records and Information.
18.1.1. The Licensee agrees that all drawings, specifications, blueprints, data,
findings, memoranda, correspondence, documents or records of any type, whether written or
oral or electronic, and all documents generated by the County as a result of the Licensee’s
request for Dark Fiber under this Agreement, are the exclusive property of the County
("Record" or "Records"), and all such Records shall be provided to and/or returned to the
County upon completion, expiration, termination, or cancellation of this Agreement. The
Licensee shall not use, willingly allow, or cause such materials to be used for any other
purpose other than performance of all obligations under this Agreement without the written
consent of the County. Additionally, the Licensee agrees that the Records are confidential
records and neither the Records nor their contents shall be released by the Licensee, or third
parties; nor shall their contents be disclosed to any person or entity other than the County. The
Licensee agrees that all oral or written inquiries from any person or entity regarding the status
of any Record generated as a result of the existence of this Agreement shall be referred to the
County for a response. At the County's request, the Licensee shall deliver all Records to the
County, including "hard copies" of computer records and, at the County's request, shall destroy
all computer records created as a result of the County's request for services pursuant to this
Agreement.
18.1.2. The Licensee agrees to include the provisions of this section as part of
any contract or agreement the Licensee enters into with contractors or other third parties for
work related to work pursuant to this Agreement.
18.1.3 The County shall not be required to hold as confidential, any public
records required to be disclosed by a governmental or judicial order, or by statute including, without limitation, the Virginia Freedom of Information Act.
18.1.4. No termination of this Agreement shall have the effect of rescinding,
terminating or otherwise invalidating this section of this Agreement.
Section 18.2. Confidential Information and Documents. The Licensee, and its employees,
agents, and contractors, shall protect as confidential and not release all County information and
documents obtained as a result of Licensee’s work under this Agreement. The Licensee shall
take measures to ensure that all of its employees, agents, sublicensees, and contractors are
informed of, and abide by, this requirement.
Section 18.3. Non-Appropriation. All of the County’s obligations under this Agreement are
subject to appropriation of funds by the County Board of Arlington County, Virginia for the
specific purpose of satisfying the payment and performance of such obligations. In the event
that funds are not appropriated at the beginning of any County’s fiscal year for the specific
33
purpose of satisfying the obligations of the County under this Agreement, then this Agreement
shall become null and void and shall terminate on the last Day of County’s fiscal year for
which appropriations were made for such purpose, without any termination fee or other
liability whatsoever to the County. If funds for the County’s obligations under this Agreement
are not appropriated, then all of the Licensee’s permissions pursuant to this Agreement shall
cease before the beginning of the County’s next fiscal year. It is agreed by both the County
and the Licensee that, notwithstanding any provision in this Agreement to the contrary, this
clause shall supersede any and all obligations imposed by any other provision of this
Agreement including the Exhibits hereto. No subsequent amendment of, or addendum to, this
Agreement shall compromise the full legal implication of this section between the Parties or
their respective successors or assigns.
Section 18.4. Sovereign Immunity. Notwithstanding any other provision of this Agreement to
the contrary, nothing in this Agreement or any action taken by the County pursuant to this
Agreement shall constitute or be construed as a waiver of either the sovereign or governmental
immunity of the County. The Parties intend that this provision shall be construed as broadly as
possible.
Section 18.5. No Promotion or Marketing of Licensee; Publicity; Media Releases.
18.5.1 The County shall have no obligation to promote, market or advertise, in
any fashion, the operations or services of the Licensee. Under no circumstances shall the
Licensee state, suggest, or imply, in any fashion, that the County endorses or has endorsed the
Licensee’s services.
18.5.2. Neither Party shall publish or use any advertising, sales promotions, or
other publicity materials that use the other Party's name, logo, trademarks or service marks
without the prior written approval of the other Party. Each Party shall have the right to review
and approve any publicity materials, media releases, press releases or other public statements
by the other that refer to, or that describe any aspect of, this License. Each Party agrees not to
issue any such publicity materials, press releases or public statements without the prior written
approval of the other Party. Nothing in this License establishes a license for either Party to use
any of the other Party's brands, marks or logos without the prior written approval of the other
Party.
18.5.3. Neither Party shall issue any media releases or otherwise make any
announcements, or do any marketing or advertising or public relations, that references the
Parties’ relationship without the prior review and written approval of the other Party.
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ARTICLE 19
Miscellaneous
Section 19.1. Captions; Headings. The captions and section numbers appearing in this
Agreement are inserted only as a matter of convenience for the Parties. They do not define,
limit, construe or describe the scope or intent of such sections, nor in any way affect this
Agreement or have any substantive effect.
Section 19.2. Failure to Exercise Rights. No failure or delay on the part of a Party in
exercising or enforcing any right, power or privilege hereunder, and no course of dealing
between the Parties, shall operate as a waiver thereof; nor shall any single or partial exercise of
any right, power or privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, power or privilege.
Section 19.3. Further Assurances. A Party and its respective officers and directors, if any, will
take such further action after the execution of this Agreement as may be reasonably requested
by the other Party in order to carry out the purposes of this Agreement.
Section 19.4. Counterparts. Upon agreement of the County, this Agreement may be executed
by one or more Parties on any number of separate counterparts, and all of said counterparts,
taken together, shall be deemed to constitute one and the same instrument.
Section 19.5. Interpretation. No portion of this Agreement shall be construed against either
Party based on any claim that said Party drafted said portion.
Section 19.6. Contractors. The Licensee may hire contractors to install, repair, replace,
upgrade and maintain the Licensee's Equipment, provided that the Licensee ensures those
contractors comply with the obligations of the Licensee and provisions of this Agreement.
The County acknowledges that such contractors shall be required to maintain insurance
coverage in amounts deemed reasonable and prudent by t he Licensee.
Section 19.7. Contact Persons. The names and contact information for representatives of the
County and the Licensee are set forth on Schedule 5, which may be amended by the Parties
from time-to-time.
Section 19.8. No Relief From Taxes, Fees or Other Government Impositions. None of the
annual payments charged to the Licensee pursuant to this Agreement includes any tax or
franchise fee charged by any governmental entity. The Licensee shall pay all taxes, fees, and
assessments attributable to the Licensee’s use of the Licensed Fibers and the operation of the
Licensee’s Equipment.
Section 19.9. Audit. The Licensee agrees to retain all books, records and other documents
related to this Agreement for at least five (5) years. The County or its authorized agents shall
35
have, upon request, full access to and the right to examine and audit such books, records and
documents during the Term. The County shall provide the Licensee with fifteen (15) Days
advance written notice of any audit or examination request and any audit or examination shall
be performed only during ordinary business hours. Each Party shall bear its own costs related
to any audit or examination. The Licensee shall not charge the County for access to such
books, records and other documents. The Licensee shall cooperate with the County in granting
access to its facilities and records, and the Licensee shall have the right to have a representative
present throughout any audit or examination.
Section 19.10. Delegation. Unless the language or context clearly provides to the contrary, or
unless not authorized or permitted by law, where the County is required or permitted by this
Agreement to perform an act(s), the County Manager is authorized to perform or to delegate to
the Director, Department of Technology Services, the authority to perform such act(s)
described in the following sections of this Agreement: Sections 1.8; 1.8.1; 1.10 through 1.12;
2.1.1; 2.1.3; 2.2 through 2.5; 3.5; 4.4; 4.7; 4.9; 4.13; 5.2; 5.4; 5.6; 5.7; 6.2.2; 8.1; 8.2; 9.1; 10.1
through 10.4; 10.6; 10.7; 13.2; 14.3.2; 16.1 through 16.3; 18.1.1; 19.9; and 19.11.
Section 19.11. Notices. All notices, consents, approvals, denials and other communications
required or permitted by this Agreement shall be in writing, and shall be deemed duly given if
delivered in person, or sent by Federal Express, or other overnight delivery service, or by
certified mail, return receipt requested, or other method which furnishes a receipt upon
delivery, to and by the respective representatives of the Parties set forth in Schedule 8 hereof.
The persons designated to receive notices and the place notices are to be sent for either the
County or Licensee may be changed by notice given pursuant to the provisions of this Section.
Notices personally delivered or sent by overnight delivery service shall be deemed effective
upon delivery; notices sent by certified mail shall be deemed effective upon the earlier of (a)
the date of receipt or rejection by the addressee, or (b) three (3) Days following the date of
mailing (excluding Sundays and holidays on which mail is not delivered by the United States
Postal Service). Notwithstanding the foregoing, any notice pertaining to a change of address of
a Party shall be deemed effective only upon receipt or rejection by the Party to whom such
notice is sent.
Section 19.12. No Exclusivity. Nothing in this Agreement is intended to limit the County's
right to use, or license to others the permission to use, any portion or component of the County
Network other than the Licensed Fibers, the Interconnection Fibers, and the Interconnection
Points.
Section 19.13. Entire Agreement and Amendment of License Agreement. This Agreement
together with all exhibits, contain and embody the entire agreement of the Parties. No
representations, inducements, or agreements, oral or otherwise, between the Parties not
contained and embodied in this Agreement shall be of any force or effect. Unless specifically
otherwise provided herein, this Agreement may not be amended, modified, or changed in
whole or in part in any manner other than by an agreement in writing approved by the County
Board of Arlington County and duly signed by all properly authorized representatives of all
Parties to this Agreement.
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Section 19.14. No Vested Right in Licensee or Others; Limitations. This Agreement
constitutes a license to the Licensee for the use of the Licensed Fibers, the Interconnection
Fibers, and the Interconnection Points only, subject to the terms and conditions hereof. By this
Agreement, the County is not transferring or granting to Licensee any other interest or estate in
the Licensed Fibers, Interconnection Fibers, or the Interconnection Points, nor any other real or
personal property interest, including any fee, easement, or franchise rights.
Section 19.15. No Rights in Third Parties; No Third Party Beneficiaries; No Agency. This
Agreement does not provide third persons or entities (including without limitation sublicensees
or customers of the County or of Licensee) with any remedy, claim, liability, reimbursement,
cause of action, or other right or privilege, as a third party beneficiary, provided however that
the provisions hereof involving indemnification and limitation of liability of the County shall
also inure to the benefit of the County’s employees, officers, officials, and agents.
Section 19.16. No Recourse Against County. The Licensee shall have no recourse against the
County, its elected or appointed officials, officers, boards, commissions, commissioners,
employees and agents for any loss, cost, expense, claim, liability or damage arising out of any
action undertaken or not undertaken by the Licensee pursuant to this Agreement or applicable
law, whether or not such action or non-action was required by this Agreement or applicable
law, arising out of the enforcement or non-enforcement by the County or the Board of any
provision or requirement of this Agreement or applicable law, or otherwise arising out of the
Agreement or applicable law. This Section shall not preclude injunctive relief.
Section 19.17. No Partnership. In all matters pertaining to this License, the relationship of the
County and Licensee shall be that of licensor and licensee. Neither the County nor the Licensee
shall make any representations or warranties that their relationship is other than that of licensor
and licensee. This Agreement is not intended to create nor shall it be construed to create any
partnership, joint venture, employment or agency relationship between the County and the
Licensee. No Party shall have the power to bind or obligate any other Party. No Party shall be
liable for the payment or performance of any debts, obligations, or liabilities of the other Party,
unless expressly provided otherwise in this Agreement. Each Party retains full control over the
employment, direction, compensation and discharge of its employees, and will be solely
responsible for all compensation of such employees, including without limitation social
security, withholding and workers compensation responsibilities.
Section 19.18. Licensee Not an Agent of the County. The Licensee is not an agent of the
County. The Licensee shall have no authority, express or implied, to act as agent, for any
purpose, of the County or any of its departments. The County is not the Licensee’s agent and
shall have no authority, express or implied, to act as agent of the Licensee for any purpose.
Section 19.19. No Waiver of Rights by County. No waiver by the County of any breach of
any covenant, condition or requirement specified for this Agreement shall operate as
invalidation or as a continual waiver of such covenant, condition or requirement, or of any
subsequent breach. No payment by the Licensee or receipt by the County of a lesser amount of
37
money than is due to the County shall be deemed an accord and satisfaction. The County may
accept any check or payment without prejudice to the County’s right to recover the balance of
such money due or to pursue any other remedy provided for in this Agreement or in the
governing law of the Commonwealth of Virginia.
Section 19.20. Reservation of Rights by County. Neither the entering into of this Agreement
by the County, nor any provision hereof, shall be deemed to conflict with, limit, or preclude the
County’s enforcement of its ordinances, regulations and policies, or the exercise of its
governmental functions and police powers.
Section 19.21. Survival. In addition to any term, paragraph or section of this Agreement
which specifically states that the same survives the expiration or termination of this
Agreement, the following sections also shall survive: Sections 1.9; 3.4; 3.6; 4.9; 11.1.3; 12.1;
12.6.1; 12.9; 18.2; and 19.16 through 19.18.
Section 19.22. Severability. The sections, paragraphs, sentences, clauses and phrases of this
Agreement are severable. If any phrase, clause, sentence, paragraph or section of this
Agreement shall be declared invalid by a court of competent jurisdiction, then such invalidity
shall not affect the validity of any of the remaining phrases, clauses, sentences, paragraphs and
sections of this Agreement.
Section 19.23. Applicable Law. This Agreement and all work performed hereunder shall be
governed in all respects by the laws of the Commonwealth of Virginia. The jurisdiction, forum,
and venue for all litigation with respect to, or arising out of, this Agreement shall be in the
General District Court of Arlington, County, Virginia, and in the Circuit Court of Arlington
County, Virginia, and in no other courts. In exercising the permissions authorized by this
Agreement, the Licensee shall comply with all applicable federal, state, and local laws,
ordinances and regulations.
Section 19.24. Recitals; Exhibits. The Recitals and Exhibits are incorporated into, and made a
part of, this Agreement.
Section 19.25. Effective Date. This Agreement shall be effective on the date when this
Agreement is executed on behalf of the County. The Licensee shall execute the Agreement
before the County.
Section 19.26. Exhibits and Schedules. The Exhibits and Schedules are incorporated herein by
reference as though set forth fully in this Agreement, notwithstanding that the Exhibits and
Schedules may not be physically attached to this Agreement. The Exhibits are as follows:
Exhibit A: Definitions
Exhibit B: Administrative Rules
Exhibit C: Form of Application for Additional Arlington County Dark Fiber
Exhibit D: Form of Letter of Credit
Exhibit E: Depiction of County Network
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The Schedules are as follows:
Schedule 1: Licensed Fibers and Interconnection Points
Schedule 2: Schedule of Rates and Fees
Schedule 3: Statement of Annual License Fee
Schedule 4: License Term
Schedule 5: Addresses for Notice and Payment and Designation of Contact Persons
In the event of an inconsistency between the terms contained in the Exhibits and Schedules and
the terms of the remainder of the Agreement, the Exhibits and Schedules shall control, but only
with respect to the specific inconsistency.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.]
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as
of the Effective Date.
THE COUNTY:
THE COUNTY BOARD OF
ARLINGTON COUNTY, VIRGINIA
By:____________________________
Name:__________________________
Title:___________________________
Date:___________________________
Approved as to form:
__________________
County Attorney
THE LICENSEE:
[INSERT NAME OF LICENSEE]
By:____________________________
Name:__________________________
Title:___________________________
Date:___________________________
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LIST OF EXHIBITS AND SCHEDULES
Exhibits
Exhibit A: Definitions
Exhibit B: Administrative Rules and Technical Specifications
Exhibit C: Form of Application for Additional Arlington County Dark Fiber
Exhibit D: Form of Letter of Credit
Exhibit E: Depiction of the County Network
Schedules
Schedule 1: Licensed Fibers and Interconnection Points
Schedule 2: Schedule of Rates and Fees
Schedule 3: Statement of Annual License Fee
Schedule 4: License Term
Schedule 5: Addresses for Notice and Payment and Designation of Contact Persons
41
EXHIBIT A
DEFINITIONS
“Acceptance Date” means the date on which the Licensee is deemed to have accepted the
Original Licensed Fibers, Original Interconnection Fibers, and Original Interconnection Points,
or any Additional Licensed Fibers, Additional Interconnection Fibers, and Additional
Interconnection Points, pursuant to Section 9.1, and the Licenses in such Licensed Fibers or
Interconnection Points become effective.
"Additional Interconnection Point" means an Interconnection Point made available by the
County in response to a request submitted by the Licensee after the Effective Date, as
identified by number as designated by the County and set forth on Schedule 1.
"Additional Licensed Fibers" means the Strands made available by the County in response to a
request submitted by the Licensee after the Effective Date and identified on Schedule 1, as
amended from time to time.
"Administrative Rules" means the rules, regulations and procedures promulgated by the
County relating to administrative or technical matters under the Agreement, as set forth in
Exhibit B, as may be amended from time to time. The Administrative Rules may include, but
are not limited to, guidelines for access, maintenance and repair of the County Network and the
Licensee's Equipment connected thereto.
"Agreement" means this document when signed by both of the Parties, and the terms,
conditions, and covenants described herein.
"Application" means a completed Application Form submitted to the County by the Licensee
to request Additional Licensed Fibers and/or Additional Interconnection Fibers, or to notify
County of an assignment of a License authorized hereunder, as further set forth in Sections 2.1
and 14.1.
"Application Fee" shall have the meaning set forth in Section 2.1.3.
"Application Form" shall have the meaning set forth in Section 2.1.1.
“Available Fiber” means Strands of Dark Fiber located in the County Conduit that the County
has designated as excess and available for licensing.
"Codes" mean regulations, rules, requirements, industry standards, specifications or rulings, as
may from time to time be amended, supplemented or revised, applicable to the County
Network, including but not limited to (i) Telcordia Manual of Construction Procedures (Blue
42
Book); (ii) the standards of a telephone or electric utility that is a Facility Third Party; (iii) any
underlying right or aerial license agreement; (iv) the National Electric Code (NEC); (v) the
National Electrical Safety Code (NESC); (vi) regulations promulgated under the Occupational
Safety and Health Act (OSHA) and its Virginia equivalent as applicable; (vii) the rules,
regulations and orders of any governing authority having jurisdiction over the County Network
or the use thereof, or construction and operation requirements applicable to the County; (viii)
the standards promulgated jointly by the Telecommunications Industry Association and the
Electronic Industries Alliance; (ix) the Building Industry Consulting Services International
(BICSI); and (x) the County Code.
“Connection Fee” means the fee to be paid by the Licensee for the right to use a single
Interconnection Point.
“Core Junction Box” means a handhole or other location in the County Rights-of-Way at
which the County or its contractor obtains access to the County Network for the installation
and connection of Interconnection Fibers.
“County Code” means the County Code of Arlington County, Virginia, as it may be amended.
“County Conduit” means any one or all of the four underground conduits owned by the County
that contain the County Network.
“County Facilities” means any real or personal property of the County, including, without
limitation, all buildings and structures, whether owned or leased by the County, the County
Rights-of-Way, and the County Network.
"County Network" means the fiber optic network constructed, owned and maintained by the
County, as depicted on Exhibit E, inclusive of all equipment and fiber up to and including the
Interconnection Points. The County Network shall not include Licensee's Equipment.
“County Rights-of-Way” means the surface, the air space above the surface, and the area
below the surface of any street, highway, lane, path, alley, sidewalk, avenue, boulevard, drive,
concourse, bridge, tunnel, park, parkway, waterway, dock, bulkhead, wharf, pier, easement, or
similar property or waters within the County in which the County now or hereafter holds any
property interest, which consistent with the purposes for which it was created, obtained or
dedicated, may be used for the purpose of installing, operating and maintaining a
telecommunications system. No reference herein to a “County Right-of-Way” shall be deemed
to be a representation or guarantee by the County that its interest or other right to control the
use of such property is sufficient to permit use of the property for the purpose of installing,
operating and maintaining a telecommunications system. The Licensee shall be deemed to
gain only those rights to use the property as are properly in the County, in its sole
determination, and as the County may have the right and power to give.
"Dark Fiber" means optical fiber without lasers, electronics, optronics, power, or any
telecommunications service that would function to light the fiber or otherwise transmit data or
43
communications within the County Network.
“Day” or “Days” means calendar days, provided that if a day falls on a weekend or a County
holiday, it refers to the next day.
"Early Termination Fee" shall have the meaning set forth in Section 4.3.
“Emergency Repair” shall have the meaning set forth in Section 10.7.2.
"Facility Third Party" means a person or an entity that owns or controls facilities or property,
other than County Rights-of-Way, that any part of the County Network crosses, attaches,
contacts or on which the County Network is located.
“Fiber Count” means the total number of Licensed Fibers.
"Force Majeure" means any act or event that is beyond the reasonable control of a Party, and
that despite the exercise of due diligence and reasonable efforts prevents that Party from
performing an obligation under this Agreement or otherwise complying with any terms of this
Agreement, including, without limitation, acts of God, severe or unexpected weather-related
events such as ice storms, hurricanes, tornadoes, fires and floods, man-made events such as
riots, insurrections, acts of terrorism or war (whether declared or otherwise), nation-wide
shortages of materials or products, and, to the extent unforeseeable and applicable to
performance under this Agreement, acts of governmental, regulatory or judicial bodies.
"Interconnection Costs" are those expenses incurred by the County for the modification of the
County Network to facilitate the interconnection of the License’s Equipment, including
without limitation the installation and preparation of Core Junction Boxes, Interconnection
Points, and Interconnection Fibers, and shall include splicing costs, entrance costs, overlash
costs, costs charged to the County by third parties including any make-ready costs assessed by
Facility Third Parties as are necessary or required to facilitate interconnection, and other such
costs. Interconnection Costs may also include the County’s internal costs.
“Interconnection Fiber” means a strand of fiber optic cable running between (i) a Licensee
Lateral or the Licensee’s Network at an Interconnection Point and (ii) a Licensed Fiber at a
Core Junction Box, for the purpose of connecting such Licensee Lateral or the Licensee’s
Network to the County Network. The Interconnection Fibers shall be identified on Schedule 1.
"Interconnection Point" means a designated point at which the Licensee’s Network or a
Licensee Lateral interconnects with one or more Interconnection Fibers, which may include a
Joint Use Box; a patch panel, wiring closet or other suitable location inside a building, whether
owned by the County or a third party; or some other location suitable for terminating
Interconnection Fibers and splicing such fibers to the Licensee’s Network or a Licensee
Lateral. The Interconnection Points shall identified set forth on Schedule 1.
“Joint Use Box” means a handhole or other location in the County Rights-of-Way at which the
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Licensee, through its County-approved contractor, obtains access to Interconnection Fibers in
order to splice them to the Licensee’s Network or one or more Licensee Laterals; a Joint Use
Box may serve other entities in addition to the Licensee.
“Laws" mean all statutes, regulations, rules, ordinances, codes, and orders, now in force or as
may be hereafter enacted, promulgated, or amended, of any local, state or federal governmental
authority with jurisdiction over the County Network, the Licensee's use of the Licensed Fibers,
and this Agreement applicable to the construction and operation of the County Network and
Licensee's use of the Licensed Fibers, including, but not limited to, the rulings and orders of
regulatory agencies such as the Virginia State Corporation Commission and the Federal
Communications Commission.
"License" shall have the meaning set forth in Section 1.2.
“License Fee” means the annual fee to be paid by the Licensee for the right to connect to and
use an individual Licensed Fiber.
"Licensee's Equipment" means the Licensee’s Network; the Licensee Laterals; any and all
facilities and equipment necessary to interconnect the Licensee's Network and the Licensee
Laterals with the County Network that is owned or controlled by the Licensee; and any and all
facilities and equipment necessary to light and monitor the Licensed Fibers that is owned or
controlled by the Licensee. The Licensee’s Equipment shall not include the Licensed Fibers,
any Interconnection Fibers or Interconnection Points, or any other facilities or equipment
owned or provided by the County. The Licensee's Equipment includes but is not limited to, all
optronics, transceivers, electronics, optical or electrical equipment, patch or drop cables, any
equipment to light the Dark Fiber, any generators, batteries, air conditioners, fire protection, or
monitoring and testing equipment, any of which, if required, are the Licensee's sole
responsibility and expense.
"Licensed Fibers" means those fibers identified on Schedule 1 and licensed to the Licensee
pursuant to Section 1.2 or Section 2.6.
“Licensed Fiber Conduit” means the County Conduit containing the Licensed Fibers.
“Licensee Lateral” means a fiber optic line that is required to serve at least one of the
Licensee’s end user customers and that connects one or more individual end user locations
situated in Arlington County with an Interconnection Point.
“Licensee’s Network” means the communications network operated by the Licensee,
consisting of backbone facilities and other components, that permits the transmission of signals
from locations outside of Arlington County to an Interconnection Point.
"Notice of Availability” means the written notification provided by the County to the Licensee
to inform the Licensee that one or more Licensed Fibers, Interconnection Fibers, or
Interconnection Points requested by the Licensee have been made available by the County for
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connection to the Licensee’s Network or the Licensee’s Equipment.
"OTDR" means optical time-domain reflectometer.
"Original Licensed Fibers" means the Licensed Fibers identified in Schedule "1" as of the
Effective Date.
"Original Interconnection Fibers" means the Interconnection Fibers identified in Schedule "1"
as of the Effective Date.
"Original Interconnection Points" means the Interconnection Points identified in Schedule "1"
as of the Effective Date.
“Public Rights-of-Way” means the surface, the air space above the surface, and the area below
the surface of any street, highway, lane, path, alley, sidewalk, avenue, boulevard, drive,
concourse, bridge, tunnel, park, parkway, waterway, dock, bulkhead, wharf, pier, easement, or
similar property or waters within the County in which a government entity other than the
County now or hereafter holds any property interest, which consistent with the purposes for
which it was created, obtained or dedicated, may be used for the purpose of installing,
operating and maintaining a telecommunications system.
"Repair" or "Repairs" means the repair of any failure or material impairment of the County
Network or any portion thereof, as further described in Section 10.2.
"Repair Cost" means the County’s direct costs and out of pocket expenses for any Repairs.
"Standard Pricing" means the rates used to compute the License Fee, as set forth in Schedule 2.
"Strand" means a single optical fiber of the County Network.
"Total License Fee" means the sum of all of the License Fees to be paid annually by the
Licensee for the right to connect to and use all of the Licensed Fibers.
"Underlying Rights" means the rights, obligations, restrictions and limitations granted or
imposed upon the County or the County Network by authorizations, easements, licenses,
leases, conduit access agreements, pole attachment agreements, aerial attachment or conduit
rights, or tariffs of Facility Third Parties.
"Utilitv Pole or Conduit" means any pole or conduit constructed in the Public Rights of Way,
County Rights of Way, or on private property to deliver a utility service to which the County
Network is attached.
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EXHIBIT B
ADMINISTRATIVE RULES
These administrative rules are established to address p rocedures for obtaining access to
County Facilit ies, performance of work in the County Rights -of-Way, connection of the
Licensee Equipment to the County Network, and other related matters. These rules are
incorporated into the standard form Dark Fiber License Agreement (“Agreement”) and
may be amended from time to t ime as provided in the Agreement.
1. Interconnection
a. Licensee Request for Interconnection
i. Required Documentation
1. Licensee’s request to perform the interconnection will be made
in the form of a service request and will include the desired
locations (physical address, cross street, etc.) for interconnection.
b. Approval of Interconnection Design
i. Licensee Submission of Design
1. Licensee shall submit to the Project Officer, for approval,
construction design drawings detailing the proposed
interconnection.
ii. County Concurrence
1. The County shall, in writing and within ten (10) business days
after Licensee submission, approve the interconnection design or
propose changes to the design in order to gain approval.
iii. Reconciliation
1. Upon County’s written notice to the Licensee that changes to the
design are necessary, the County and Licensee shall mutually
agree upon an amended design.
c. Coordination with County
i. Licensee shall coordinate with the County Project Officer before
performing any work related to the interconnection within the County
right-of-way.
d. Work
i. Permits
1. No work by any Licensee, contractor, person, or entity shall be
performed within the boundaries of the County rights-of-way
until a permit has been obtained from the County, as required
pursuant to Chapter 22 of the Code of Arlington County,
Virginia, as such chapter may be amended, reenacted, or
replaced.
2. Licensee shall be required to obtain all other applicable permits
47
required by Law.
ii. Pre-Approved Contractor
1. When making the interconnection, Licensee shall procure the
services of a contractor from a pre-approved list as provided by
the County.
e. Monitoring and Access
i. No contractor other than County contractor or pre-approved contractor
under County supervision shall enter or open any County junction box.
ii. Licensee may request County-supervised access to Licensee’s
interconnection. This requested should be in writing and directed to the
County Project Officer
iii. Licensed fibers shall be monitored by Licensee. Signal disruptions
and/or outages shall be diagnosed and troubleshot by Licensee and/or
end user and reported to the County only after the Licensee’s obligation
to self-diagnose and self-correct has been met as described below.
iv. Licensee shall assist the County in the County’s attempts to troubleshoot
disruptions and outages. Failure of Licensee to assist in the
troubleshooting process shall relieve the County of providing timely
responses to Licensee.
f. Inspection
i. The County shall inspect its conduit, cable, cable splices, and optical
performance as it deems necessary.
ii. The licensee shall assist the County in providing reasonable access to the
fiber end points as necessary to perform inspection and troubleshooting.
iii. The County shall not intentionally interrupt communication over the
Licensee’s fiber without consent and coordination with the Licensee.
2. Maintenance and Repair of County Network
a. County Notice to Licensee
i. In the event of non-emergency maintenance or repair by the County of
the County Network, the County shall provide advance notice, of
fourteen (14) business days, to the Licensee’s designated recipient by
phone or electronic mail.
ii. In the event of emergency maintenance or repair by the County of the
County Network, the County shall provide reasonable advance notice, of
four (4) hours, to the Licensee’s designated recipient by phone or
electronic mail.
b. Schedule
i. A schedule shall accompany an advance notice of non-emergency
maintenance or repair. The schedule shall include the following
description of the work: location, affected fibers (if applicable),
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estimated start time, duration, and estimated end time.
c. Licensee Request for Repair
i. A request for repair shall be submitted by the Licensee to the County as
described below in Licensee Outages/Repair.
3. Licensee Outages/Repair
a. Licensee Troubleshooting
i. Before notifying the County of a County Network outage, the Licensee
shall confirm that all equipment and related appurtenances in the
Licensee’s ownership and control are in working order.
b. Licensee Notice to County
i. Upon Licensee’s determination of an outage in the County Network,
Licensee shall immediately notify the County Project Officer by calling
703-228-7772 during normal business hours and 703-558-2222 after
hours.
c. County Assessment of Outage
i. Upon Licensee notice to County of a County Network outage, the
County shall activate its maintenance contract with a County contractor
and perform or caused to be performed the necessary assessment and
attempt to determine the source of the outage.
d. Repair
i. The County shall immediately repair, or cause to be repaired, the source
of outage within the County Network. Upon notice to the County of an
estimated repair timeline, the County shall communicate the timeline to
the Licensee. Until the repair is completed, the County shall provide
Licensee an updated repair timeline at regular intervals.
4. Disconnection
a. Licensee Request for Disconnection
i. Required Documentation
1. The Licensee, seeking to voluntarily disconnect from the County
Network, shall submit a written request for disconnection to the
County at least thirty (30) days prior to the Licensee’s desired
effective date of disconnection. The request shall include the
requested effective date of the disconnection and the
identification number(s) of the fiber(s) requested to be
disconnected.
b. Coordination with County
i. Upon County’s receipt and approval of Licensee’s request for
disconnection, the Licensee shall complete the disconnection within
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thirty (30) days of the desired effective date of disconnection.
c. Work
i. Permits
1. No work by any Licensee, contractor, person, or entity shall be
performed within the boundaries of the County rights-of-way
until a permit has been obtained from the County, as required
pursuant to Chapter 22 of the Code of Arlington County,
Virginia, as such chapter may be amended, reenacted, or
replaced.
2. Licensee shall be required to obtain all other applicable permits
required by Law.
ii. Pre-Approved Contractor
1. When making the disconnection, Licensee shall procure the
services of a contractor from a pre-approved list provided by the
County.
iii. Monitoring and Inspection
1. The County shall designate a representative to monitor and
inspect the Licensee’s disconnection from the County Network.
The representative shall be authorized to stop and reschedule all
work.
d. Involuntary Disconnection
i. The County is authorized to disconnect and remove the Licensee
Equipment according to the Agreement.
5. Technical Specifications
The County recognizes that due to junction box capacity issues, the need for lateral junction
boxes may arise. The following describes the process for the installation of a lateral junction
box.
a. Process for Outside Plant Integration.
i. Agreement is signed and Notice of Availability is issued to the Licensee.
ii. County and Licensee agree on a ConnectArlington core junction box to
serve as a splice point for each Interconnection Point.
iii. The County may, if deemed necessary by the County, install a
ConnectArlington “lateral” junction box in the public right-of-way
connected to the ConnectArlington “core” junction box by conduit, a
“joint-use” 144-strand fiber cable linking the junction boxes, and
perform applicable splicing and testing.
iv. Notes:
1. County builds and owns all lateral junction boxes, fiber, and
conduit in right-of-way and/or public utility easement.
2. Licensee builds its necessary infrastructure from its point of
origination to the lateral or core junction box.
3. The core junction boxes and lateral junction boxes will be
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secured with lock bolts permitting access to only the County.
4. Licensee may request County-supervised access to the core and
lateral junction boxes.
5. Only one penetration of the ConnectArlington core junction box
will be permitted. Once the lateral box is completely occupied,
the next nearest ConnectArlington core junction box may be
employed, beginning with (ii) above.
b. First Mile Connections
i. A Licensee can make a first mile connection to the ConnectArlington
network at a mutually agreed upon location. Only County contractors
will be allowed to access the core junction box and perform any
necessary splicing and/or maintenance at that location.
c. Last Mile Connections
i. Lateral junction boxes are joint use junction boxes which are located in
the County Right of Way (ROW) and are or will be intended to be used
as a means to make the Last Mile connection to the Licensee’s end user.
These junction boxes which we will refer to as Joint Use Junction (JUJ)
boxes and any other subsidiary joint use junction boxes located within
the County ROW will be built by the Licensee and owned and
maintained by the County. Junction boxes will have a 144 count cable
connecting them to the main ConnectArlington core junction boxes.
Licensees will be required to coordinate any required splices to
ConnectArlington fiber located within these JUJ boxes with the County
Project Officer. Build of conduit and fiber pull from the end users
property up to the County ROW and into the JUJ box will be the
responsibility of the Licensee or its’ subsequent end user.
6. Fiber Optic Testing Specifications
a. Introduction
i. Before the Notice of Availability is issued and each fiber in the County
Network is lit, the County’s contractor will perform end-to-end testing
of each fiber. Below is the test plan to determine acceptable optical
performance of the fiber links.
b. Testing Philosophy
i. This test procedure is designed to ensure that the fiber optic plant meets
general industry standards, and is suitable to support connectivity to a
range of potential fiber interface equipment. Testing shall be performed
after construction is completed for each site. Each link shall be tested for
continuity and to ensure that there are no unacceptable anomalies in the
fiber optic cable. An optical time-domain reflectometer (OTDR) shall be
used to measure and document splice and connector locations, and an
optical power meter test set shall be used to determine end-to-end optical
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losses and fiber continuity.
c. Testing Criteria
i. The test shall be successfully completed and shall be conducted in the
presence of the County’s designated observer. The test shall be deemed
successfully completed if:
1. maximum end-to-end fiber losses do not exceed 0.385 dB/km at
1310 nm, and 0.285 dB/km at 1550 nm.
2. individual splice losses do not exceed 0.10 dB at 1310 nm; and
0.05 dB at 1550 nm.
3. maximum mated connector losses do not exceed 0.50 dB at
either wavelength. The average connector loss for one cable
segment (144 fibers from one patch panel if backbone
installation or 12 fibers from one edge site patch panel
installation) shall not exceed 0.30 dB at 1550 nm.
ii. Testing will be performed by contractor personnel. County personnel
may request and perform additional testing. The County Project Officer
has the authority to approve higher losses on a case-by-case basis.
d. OTDR Testing Procedure
i. An OTDR shall be used to measure and document splice losses and
connector losses. To correctly identify abnormalities at a short range, a
500-meter or 1.0 km launch cable shall be used between the OTDR and
the fiber under test. Bi-directional traces shall be acquired for each fiber.
If the connection of the launch cable to the patch panel requires
optimization by the operator, sampling acquisition will commence upon
completion of the optimization.
ii. Each fiber will be identified, and the results of the test for each fiber will
be recorded as indicated below in the section “Test Data File Names.”
The test will be repeated for each of the fibers linking a particular site.
All tests will be made at 1310 nm and 1550 nm.
iii. Settings on the OTDR shall be:
1. The Refractive Index shall be set for the actual fiber type under
test (commonly-used Corning SMF-28 single mode fiber has a
refractive index of 1.4677 at 1310 nm);
2. Pulse width no greater than 100 ns (10m) for all fiber lengths;
3. Event threshold: 0.010 dB.
4. Scattering coefficient specified by the fiber manufacturer for
each wavelength tested;
5. A minimum of 10,000 sampling acquisitions (Averages);
6. Maximum range setting shall be no more than 10 km for all fiber
length less than 10 km; and
7. Maximum range setting shall be no more than 25% higher than
the fiber lengths under test for the fibers in the segment from the
remote site to the hub patch panel.
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iv. Test Documentation
1. Installed optical fiber OTDR test documentation shall include:
a. Total fiber length;
b. Individual fiber traces for complete fiber length;
c. Paper and/or computer disk records of all traces;
d. Losses of individual splices and connectors;
e. Losses of other anomalies;
f. Wavelength tested and measurement directions;
g. Manufacturer, model and serial number of the test
equipment; and
h. Name, signature, and company of the engineer
performing the tests.
2. All data collected at each location during the tests shall be
recorded by the County at the time of the tests using electronic
means.
e. Optical Power Meter Test Procedure
i. Optical power meter measurements shall be made at the same time as
the OTDR tests to determine overall fiber loss and to ensure that fibers
have appropriate end-to-end continuity (fibers not crossed). Calibration
readings shall be taken at the beginning and end of a testing day:
1. Power on both fiber optic power meter and laser light source;
2. Allow each instrument a minimum 10-minute warm-up period;
3. Clean all connectors, in-line adapters, and the source and meter
connections with alcohol, lint-free wipes, and compressed air;
4. Connect a jumper to the light source, and a second jumper to the
meter. Connect the jumpers using a bulkhead;
5. Ensure that the wavelength setting on the light source and the
power meter is 1310nm;
6. Set the power meter to record absolute (ABS) readings;
7. To ensure that the jumpers are functional and that a proper
connection has been established, observe the power reference
reading on the meter’s main display;
8. Record the measurement on the display, ensuring that the meter
is set to display absolute measurements (ABS);
9. Power down the light source and the power meter. Disconnect
the light source jumper at the bulkhead ONLY. Cap the free
connectors on both jumpers; If inconsistent/erroneous readings
are observed, re-clean the jumpers and fiber termination points
and test again before recording final dB value;
10. Change the light source and power meter to 1550 nm and repeat
tests;
11. Disconnect the jumpers from the fiber under test. To test
additional fibers, be sure to clean each connector and termination
point with both alcohol and compressed air. This should be done
53
before testing all fibers;
12. Connect the jumpers to the ends of the next fiber to be tested and
observe the measurement on the main display;
13. The meter and light source should only be powered off when
traveling to a new test site. At each new site, the meter and
source must both be allowed a ten-minute warm up period.
Follow steps 1-11 at each new site; and
14. Recalibrate the light source and meter after each day’s testing is
completed, following the calibration procedure.
Approved at the regular meeting of the County Board on February 21, 2015
54
EXHIBIT C
APPLICATION FOR ADDITIONAL ARLINGTON COUNTY DARK FIBER
The following information and documentation must be provided in full by a currently licensed applicant desiring additional fibers. No application will be processed unless all information, documentation and
fees have been received.
1. APPLICANT INFORMATION
Legal Name of Applicant (Person or Entity Applying for License): Application Date:
_____________________________________________________________
_________________
_
Mailing Address:
___________________________________________________________________________________
_ Street Apt./Suite No. City State Zip Code
Telephone No. 1: __________________________ Type: _______________________
Telephone No. 2: __________________________ Type: _______________________
Email: _________________________________________
a. Applicant’s Business Contact (if applicable)
______________________________________________________
__________________________
Last Name First Name Title
Mailing Address:
___________________________________________________________________________________
_
Street Suite No. City State Zip Code
Telephone No. 1: __________________________ Type: _______________________
Telephone No. 2: __________________________ Type: _______________________
Email: _________________________________________
b. Applicant’s Technical Contact (if applicable)
______________________________________________________
________________________
__ Last Name First Name Title
Mailing Address:
___________________________________________________________________________________
55
_ Street Suite No. City State Zip Code
Telephone No. 1: __________________________ Type: _______________________
Telephone No. 2: __________________________ Type: _______________________
Email: _________________________________________
c. Applicant’s Authorized Agent (if applicable)
______________________________________________________ ________________________
__
Last Name First Name Agent’s Firm/Company
Mailing Address:
___________________________________________________________________________________
_
Street Suite No. City State Zip Code
Telephone No. 1: __________________________ Type: _______________________
Telephone No. 2: __________________________ Type: _______________________
Email: _________________________________________
2. NUMBER OF FIBER OPTIC STRANDS
Date of Original License Agreement: ___________
Name of Original Licensee: _________________________
Date on which Licensee Desires to Connect Additional Strands: ___________
Number of Currently Assigned Strands at Date of Application: ___________
Number of Additional Strands Requested: ___________
(Cannot exceed the number permitted by the Schedule of Rates and Fees)
3. APPLICATION MUST BE ACCOMPANIED BY ACCURATE AND COMPLETE COPIES
OF THE FOLLOWING DOCUMENTS:
A copy of the document(s) that establish the authority for the Applicant (if an entity, not an
individual) to sign the Application. Where an agent signs the Application on behalf of an
Applicant, the document(s) establishing the Agent’s authority also must be provided.
Certificate of Insurance for Commercial General Liability, not less than $1 Million CSL BI/PD
each occurrence, $2 Million annual aggregate with the County listed as additional insured party
under the insurance. (This may be satisfied by an endorsement to an existing Commercial
General Liability insurance policy.)
Identification/description/location of additional Interconnection Fibers and/or Interconnection
Points, if applicable.
56
4. APPLICATION SUBMISSION
The Applicant shall submit this Application, all documents and materials required by Section 3 of this
Application, and the Application Fee (listed in the most current Schedule of Rates and Fees) electronically. Application and required documents and materials should be submitted to
[email protected]. The Application Fee shall be remitted electronically. If these
submissions cannot be made electronically, they shall be submitted to:
Manager, ConnectArlington Licensing
Arlington County Government
Department of Technology Services 2100 Clarendon Boulevard
Suite 511
Arlington, Virginia 22201
Processing of the Application may be delayed unless it has been filled out in its entirety, submitted with
all required documentation and materials attached, and properly signed by, or on behalf of, the Applicant.
After the receipt and initial review of the Application, the Applicant (or its Agent) will be contacted by
County staff if any additional information or documentation is needed. No Application will be considered
to be complete until all information and documentation requested by the County Department of Technology Services staff is received. Once the Application is determined to be complete, and all
additional requested information and documentation is received, the Application will be reviewed by the
Department of Technology Services for feasibility. Once a feasibility determination has been made, the Applicant will receive electronic written notice that the Application has been accepted as complete, and
the Application is being reviewed for approval or rejection.
5. REJECTION OF APPLICATION
The County may reject an Application for any lawful reason, including, without limitation, the following:
There are no fiber optic strands available for licensing by the County to the Applicant at the
location(s) requested by the Applicant;
The County has determined that any remaining fiber optic strands must be reserved for future use
by the County;
Existing physical obstacles would make the County granting access to the fiber optic strands
impractical or undesirable, in the sole discretion of the County;
Approval of the Application would require installation or construction by the County of facilities
beyond, or in addition to, the available County fiber optic strands.
Approval of the Application would be contrary to an adopted action, policy, or resolution of the
Arlington County Board specifically concerning ConnectArlington;
Approval of the Application would require an outage or disruption of service to an existing fiber
optic strand licensee;
.
6. APPROVAL OF APPLICATION
Upon approval of the Application by the County, the County will countersign the Application and deliver the same to the Applicant to indicate the County’s approval. The Applicant must then enter into a standard
form County Dark Fiber License Agreement with the County. The County will use commercially
57
reasonable efforts to issue a Notice of Availability to the Applicant within ninety (90) days after the standard form County Dark Fiber License Agreement has been fully executed by the Applicant. If the
County does not issue a Notice of Availability within ninety (90) days after receipt of a fully executed
standard form County Dark Fiber License Agreement from the Applicant, the Applicant may withdraw its Application.
7. CERTIFICATION
I hereby certify that: i) I have the full authority to make the foregoing Application as, or on behalf of, the
Applicant; ii) the information in this Application and the required submittals are complete and correct;
and iii) any work to be performed or facilities to be installed pursuant to this Application or any License granted hereby will comply with all laws of the Commonwealth of Virginia and all ordinances, rules,
regulations, policies, and special conditions of Arlington County and the County Board of Arlington
County, Virginia. By submitting this Application, I acknowledge that the Application is a public record under the Virginia Public Records Act, and may be subject to release under the Virginia Freedom of
Information Act.
Signature of Applicant: ________________________________________ Date: __________________
Print Name: ____________________________________________ Telephone No.:
________________
Company Full Legal Name (if applicable):
__________________________________________________
Title of Representative:
_________________________________________________________________
For Internal Use Only
___________________________________________________ Countersigned on behalf of County
___________________________________________________
Name
___________________________________________________
Title
___________________________________________________
Signature ___________________________________________________
Date of Approval
□ Approved □ Rejected
58
EXHIBIT D
FORM OF LETTER OF CREDIT
UNCONDITIONAL IRREVOCABLE STANDBY LETTER OF CREDIT
NUMBER ______
County Board of Arlington County, Virginia
2100 Clarendon Boulevard
Suite 300
Arlington, Virginia 22201
ATTN: County Manager
Date of Issuance: __________, _____
Issuing Bank: ___________________
Applicant: (Name)______________________
(Address) ____________________
____________________
____________________
____________________
Beneficiary: County Board of Arlington County, Virginia
Face Amount: $__________
Expiration Date: ____________, _____
Initial and Automatic Renewal Periods: One year and automatically renewing
year to year thereafter
Ladies and Gentlemen:
We, _____________________, “Bank”, registered to do business in the Commonwealth of
Virginia, hereby open our Unconditional Irrevocable Standby Letter of Credit Number
__________ “Letter of Credit” in favor of the County Board of Arlington County, Virginia,
“Beneficiary” effective on the Date of Issuance, for the account of the Applicant in an aggregate
Face Amount of _________ and 00/100 Dollars ($________). We hereby undertake to honor
promptly all sight drafts presented to the Bank by the Beneficiary drawn under and in compliance
with this Letter of Credit, provided that such drafts do not exceed the Face Amount hereof, and
further provided that all drafts are accompanied by the following documents:
1. A copy of the Letter of Credit and all amendments thereto, if any; and
2. A dated statement, on Arlington County Virginia letterhead, signed by the County
Manager of Arlington County, Virginia, reading as follows: “Due to the failure
of the Applicant to make timely payment of a monetary amount or amounts
payable to the Beneficiary, pursuant to a certain License Agreement between the
Beneficiary, as Licensor, and the Applicant, as Licensee, dated ______
59
(“Applicant”), the Beneficiary, or its appointed designee(s), is entitled to draw
upon this Letter of Credit to pay Beneficiary a sum of money in the in the amount
of $____________ due to Beneficiary from the Applicant in connection with such
Agreement.”
We hereby agree that signed drafts drawn under and in compliance with this Letter of Credit will
be duly honored upon presentation and delivery of such documents. Partial drawings are allowed
hereunder. Signed draft(s) and the above described documents may be presented at any of the
Bank offices located in the Arlington, Virginia area and such drafts will be promptly honored by
the Bank.
It is a condition of this Letter of Credit that this Letter of Credit is deemed to be automatically
renewed, without amendment, for a period of one (1) year from the Expiration Date hereof and,
the Letter of Credit shall automatically renew itself from year to year thereafter without the
necessity of any act by the Bank or request from the Beneficiary.
The Bank shall give at least sixty (60) Days prior written notice to the Beneficiary at its
Notification Address, if the Bank is not going to renew this Letter of Credit at the end of such
sixty (60) Day time period. During such time period, irrespective of whether or not the
Beneficiary has incurred attorneys’ fees and costs to be reimbursed hereunder, Beneficiary may
draw the entire Face Amount of this Letter of Credit by presentation to the Bank of this Letter
of Credit, a sight draft, and a statement of Beneficiary’s entitlement to draw on this Letter of
Credit as a result of Bank’s notification of non-renewal.
Thereafter, the Beneficiary, or his/her appointed designee(s), may draw at any time, prior to the
then current expiration date, up to the full amount then available hereunder, against signed drafts
drawn on the Bank. In such event, the Letter of Credit and all amendments thereto, shall be
accompanied by the Beneficiary’s signed statement, on Arlington County letterhead, stating that
the Beneficiary is in receipt of the bank’s notice of non-renewal under Letter of Credit Number
______ and the Applicant’s obligations to the Beneficiary remain.
This Letter of Credit is transferable in its entirety by Beneficiary, but not in part. Any fees
charged by the Bank in connection with such transfer shall be paid by the Applicant. This Letter
of Credit is irrevocable. The Bank cannot assign or transfer its obligations under this Letter of
Credit without Beneficiary’s prior written consent, which may be withheld at Beneficiary’s sole
discretion. The Bank, Beneficiary and Applicant agree that his Letter of Credit shall be subject
to the following:
1. Funds available under this Letter of Credit shall be paid to the Treasurer of
Arlington County, Virginia in such amounts and at such times as determined by
the Beneficiary in its sole discretion, provided that the aggregate amounts drawn
shall not exceed the Face Amount of this Letter of Credit;
2. The Bank shall have no right, duty, obligation, or responsibility to evaluate the
performance or nonperformance of the underlying obligations, contractual or
60
otherwise, between the Applicant and the Beneficiary or between the Applicant
and any third party, which obligations are secured by this Letter of Credit; and,
3. The Bank hereby agrees that no change, extension of time, alteration or addition
to the Applicants’ obligations under the Agreement, shall in any way affect the
Bank’s obligations under this Letter of Credit. The Bank hereby waives notice
of any such change, extension of time, alteration or addition on the understanding
that no such change, extension of time, alteration or addition shall increase the
Face Amount of the Bank’s obligation under this Letter of Credit.
The Bank hereby undertakes to honor all drafts presented to the Bank by the Beneficiary drawn
under and in compliance with the terms of this Letter of Credit.
Notification Addresses: Except as otherwise specifically provided herein, any notice required or
permitted to be given under this Letter of Credit shall be given in writing and shall be deemed
given:
A. On the delivery date, as certified by Airborne Express or Federal Express; or
B. If delivered by hand, on the date of delivery as certified by the person delivering
the notice;
C. All notices hereunder shall be addressed to the parties as follows or to such other
addresses as either of the parties may designate from time to time by giving written notice
as herein required:
To the Beneficiary: THE COUNTY BOARD OF ARLINGTON COUNTY, VIRGINIA
2100 Clarendon Boulevard
3rd Floor
Arlington, Virginia 22201
Attn: County Manager
With a copy to:
Chief Information Officer
Arlington County Government Building
2100 Clarendon Boulevard
Suite 610
Arlington, VA 22201
To the Bank: (Name)____________________
(Title) ____________________
____________________
The notice period shall begin upon receipt by the Beneficiary of such written notice.
Communications with respect to this Letter of Credit shall be in writing and shall be addressed
to the Bank and the Beneficiary at the respective Notification Addresses. All communications
shall refer to the number of this Letter of Credit. Except as otherwise expressly stated herein,
this Letter of Credit is subject to the Uniform Customs and Practice for Documentary Credits, as
61
most recently published by the International Chamber of Commerce, and the applicable law of
the Commonwealth of Virginia.
Very truly yours,
_______________________, Bank
By:
Name: ________________________
Title: _________________________
Form and content acceptable to Applicant:
_______________________, Applicant
By:
Name: ________________________
Title: _________________________
Date: _________________________
62
EXHIBIT E
DEPICTION OF THE COUNTY NETWORK
63
SCHEDULE 1: LICENSED FIBERS AND INTERCONNECTION POINTS
1. Original Licensed Fibers.
Subject to the terms of the License Agreement, the Licensee shall have the right to use the
Original Licensed Fibers defined in the following table:
Acceptance
Date
Original
Licensed
Fiber
Numbers
Original
Fiber
Count
2. Original Interconnection Points.
Subject to the terms of the License Agreement, the Licensee shall have the right to use the
Original Interconnection Points defined in the following table:
Segment Acceptance
Date
Original
Interconnection
Point
A
B
C
D
3. Original Interconnection Fibers.
Subject to the terms of the License Agreement, the Licensee shall have the right to use the
Original Interconnection Fibers defined in the following table:
Acceptance
Date
Original
Interconnection
Fiber
Numbers
Fiber
Count
64
4. Additional Licensed Fibers.
Subject to the terms of the License Agreement, the Licensee shall have the right to use the
Additional Licensed Fibers defined in the following table:
Acceptance
Date
Additional
Licensed
Fiber
Numbers
Additional
Fiber
Count
5. Additional Interconnection Points.
Subject to the terms of the License Agreement, the Licensee shall have the right to use the
Additional Interconnection Points defined in the following table:
Segment Acceptance
Date
Additional
Interconnection
Point
A
B
C
D
6. Additional Interconnection Fibers.
Subject to the terms of the License Agreement, the Licensee shall have the right to use the
Additional Interconnection Fibers defined in the following table:
Acceptance
Date
Additional
Interconnection
Fiber
Numbers
Fiber
Count
65
SCHEDULE 2: SCHEDULE OF RATES AND FEES
[Insert Schedule of Rates and Fees HERE]
66
SCHEDULE 3: STATEMENT OF ANNUAL LICENSE FEE
Subject to the terms of the License Agreement, the Licensee shall pay to the County an annual
License Fee in the amount of $ __________.
1. The annual License Fee was computed as follows:
Standard
Pricing
Per fiber
No. of Licensed
Fibers
Annual
License Fee
2. The prorated License Fee for the period from the Acceptance Date through the end of
the first year of the Term shall be:
Annual
License
Fee
No. of
Days/365
Prorated fee for
first year
67
SCHEDULE 4: LICENSE TERM
1. Term of License Agreement.
This License Agreement shall terminate on ____________.
2. Term of Individual Licenses.
The termination date of the individual Licenses granted to the Licensee in each
Licensed Fiber shall be as follows:
Acceptance
Date
Licensed
Fibers
Term of
License
Termination
Date
68
SCHEDULE 5: ADDRESSES FOR NOTICE AND PAYMENT AND DESIGNATION
OF CONTACT PERSONS
Notices To The County:
Office of the County Manager
Arlington County Government Building
2100 Clarendon Boulevard
Suite 302
Arlington, VA 22201
Real Estate Bureau
Arlington County Government Building
2100 Clarendon Boulevard
Suite 800
Arlington, VA 22201
Chief Information Officer
Arlington County Government Building
2100 Clarendon Boulevard
Suite 610
Arlington, VA 22201
Payments to the County, for purposes of payments to the County as required by this
Agreement:
Arlington County Treasurer
Arlington County Government Building
2100 Clarendon Boulevard
Suite 201
Arlington, VA 22201
To The Licensee:
Licensee - Notification
CONNECTARLINGTONSchedule of Rates and FeesEffective Date: February 21, 2015
Length of License Term 3 Years 5 Years 10 Years
Minimum Number of Strands per Licensee
1 1 1
Maximum Number of Strands per Licensee
48 48 48
License Fee (Annual fee per strand)
$7,200 $6,000 $4,800
Annual Escalation within a Licensed Term
3.0% 3.0% 3.0%
Non-Refundable Application Fee (for initial application and application for additional fibers under existing agreement)
$750 $750 $750
Connection FeesFirst two connections included with
license agreement; $500 each additional connection
First two connections included with license agreement; $500 each additional
connection
First two connections included with license agreement; $500 each additional
connection
Early Termination FeeNone (no termination allowed without
cause per license agreement)60% of annual license fee 250% of annual license fee
Exhibit C
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