City of Hampton, Virginia
Ordinance - Non-Coded
22 Lincoln Street
Hampton, VA 23669
Enactment Number: -1063
ORDINANCE GRANTING A FRANCHISE TO VERIZON VIRGINIA INC. FOR THE TERM AND UPON
THE CONDITIONS HEREIN STATED TO OCCUPY AND USE THE STREETS, ALLEYS AND PUBLIC
PLACES OF THE CITY OF HAMPTON, VIRGINIA WITHIN ITS CORPORATE LIMITS TO INSTALL,
MAINTAIN, UPGRADE, REPAIR AND REMOVE POLES, CABLE, OPTICAL FIBERS, WIRES,
ELECTRICAL CONDUCTORS, CONDUITS, SUBWAYS, MANHOLES, AND OTHER EQUIPMENT AND
FIXTURES OF A TELECOMMUNICATIONS SYSTEM IN THE CORPORATE LIMITS OF THE CITY OF
WHEREAS, the CITY has the authority to grant
franchises and other authorizations for the use and occupancy of the Streets
(as hereinafter defined); and
WHEREAS, the Streets are a valuable public resource
that has required and will continue to require substantial investment by the
WHEREAS, the Grantee desires to obtain a franchise to
use and occupy the streets for the purpose of constructing, maintaining and
repairing a Telecommunications System (as hereinafter defined); and
WHEREAS, the CITY intends to exercise, its authority
with respect to the regulation of the occupation and use of the Streets in
connection with the construction, maintenance and repair of a
Telecommunications System to the fullest extent permitted by applicable law, including the Communications Act of 1934, as amended
by the Telecommunication Act of 1996 (the 1996 Act); Sections 15.2-2100,
56‑458 through 56‑468.2 of the Code of Virginia (Va. Code Ann.
Sections 56‑458 56-468.2 (1998)) (State ROW Law); and Section
37-225 of the Code of the City of Hampton (City ROW Law);
WHEREAS, consistent with applicable law, including Section 253 of
the 1996 Act and State ROW Law, the City desires to minimize inconvenience and
disruption to the public, provide for the orderly and efficient use of the
Streets now and in the future, and preserve adequate capacity for existing and
future uses of the Streets;
NOW, THEREFORE, BE IT
ORDAINED by the Council of the CITY of HAMPTON, Virginia:
The following terms, as used in this Ordinance, have the following meanings,
with all terms defined in the singular to have the correlative meaning when
used in the plural and vice versa:
Agreement means this
Telecommunications Franchise Agreement, as mutually amended, modified or
supplemented from time to time
Cable Services" means
"cable services" as defined in Section 602(5) of the Communications
Act of 1934, as amended by the Cable Communications Policy Act of 1984, the
Cable Television Consumer Protection and Competition Act of 1992, and the
Telecommunications Act of 1996 and as may be further amended from time to time
(the "Cable Act"). In the event that "cable services" is no
longer defined in the Cable Act or the definition in the Cable Act otherwise
becomes inapplicable, "Cable Telecommunications Services" shall mean
"cable services" as defined in the Cable Act immediately prior to
such term no longer being defined in the Cable Act or such definition otherwise
(c)"CITY" means the CITY of HAMPTON, Virginia.
"Customer" means any
Person who uses the services of the Grantee in the corporate limits of the
Construction means to install,
construct, maintain, upgrade, repair or remove Equipment.
Emergency means an emergency
as defined under Section 56-265.15 of the Code of Virginia.
Facilities" means the cables, optical fiber, poles, wires, electrical
conductors, conduits, subways, manholes, fixtures, appliances and appurtenances
that are owned, physically controlled, or physically maintained by the Grantee
in, on, over, or under the Streets to provide Telecommunications Services,
except such equipment used to provide wireless telecommunication services.
(h)"FCC" means the Federal Communications
"Franchise" has the
meaning set forth in this Ordinance.
"Grantee" means VERIZON
VIRGINIA INC., a Virginia Public Service Corporation.
(k) Like-for-Like means the installation
or relocation of Facilities in a like or similar manner of construction when
compared to previously installed Facilities. For example, placement of
facilities above-ground using aerial construction in locations where existing
facilities are constructed above ground (aerial-to-aerial) or the placement of
facilities underground, either direct bury or within conduit, in locations
where existing facilities are constructed underground
New Equipment means
any Equipment to be placed in, on, over or under the Streets by the Grantee
where no Equipment owned by that Grantee existed prior to this construction.
This term expressly excludes the replacement, repair or placement of additional
Equipment to increase capacity, and emplacement of parallel Equipment in order
to provide services to customers, and placement of Equipment on poles owned by
"Ordinance" means this
Ordinance, as amended, modified or supplemented from time to time.
(n)"Performance Bond" has the meaning set
forth in this Ordinance.
"Person" means an
individual, a corporation, a partnership, an association, a trust or any other
entity or organization, including a governmental or political subdivision or an
agency or instrumentality thereof.
"PROW Use Fee" means
the Public Rights‑of‑Way Use Fee that the CITY has imposed pursuant
to Section 56‑468.1 of the Code of Virginia, as amended, and Section
"Streets" means the
streets, alleys, parks, parkways, public grounds, waters and other public
places and public thoroughfares, other than Structures, of the CITY, as the
same now exist or may be hereafter extended or altered, and any location on,
over or under, and any portion thereof. For the purposes of this Ordinance,
the airwaves above the streets used for broadcast, cellular mobile radio
service, satellite or other wireless services shall be excluded from the
requirements of this Ordinance.
buildings, signs, fences, tanks, poles, lines, fixtures, equipment, and
appurtenances of the CITY.
(s)"Telecommunications" means the
transmission, between or among points specified by the user, of information of
the user's choosing, without change in the form or content of the information
as sent and received by or through any electronic, cable, optical, microwave,
or other medium or method in existence or hereafter devised, regardless of the
protocol used for such transmission or conveyance.
Services" means the offering of Telecommunications for a fee, regardless
of the facilities used. The term "Telecommunications Services" shall
not include Cable Services.
(u)"Telecommunications System" means the
plant, equipment, real property (including interests in real property),
tangible and intangible personal property, cable, wires, optical fibers,
amplifier, antenna, and all other electronic devices, Equipment and facilities
of a telecommunications provider located in, on, over or under the Streets.
"Term" has the meaning
set forth in this Ordinance.
2. Grant of Franchise. The CITY grants the Grantee a franchise (the "Franchise")
to occupy and use the Streets to install, construct, maintain, upgrade, repair
and remove Equipment of its Telecommunications System subject to the conditions
of this Ordinance. Grantee is not authorized to sublicense or sublease to any
Person the right to occupy or use the Streets to install, construct, maintain,
upgrade, repair or remove Equipment or any other facilities for any purpose.
The Grantee shall have the right to remove, trim, cut and keep clear of its
Equipment the trees in the Streets, but in the exercise of such right the
Grantee shall not cut or otherwise injure these trees to any greater extent
than is reasonably necessary for the installation, upgrade, construction,
repair, maintenance and removal of the Equipment. The Grantee shall not trim,
cut or remove any tree from any Street unless prior written notice of its
intention so to do is given to the department or agency of the City as shall be
designated by the City Manager and permission in writing so to do is granted by
this department or agency, except in cases of emergency or when this
requirement is waived by this department or agency. Any trimming, cutting or
removal of trees by the Grantee shall be done in accordance with industry
standards in urban forestry.
3. Term of Franchise. The Franchise commences on the Effective Date and expires fifteen
(15) years after the Effective Date, unless the Franchise is renewed. The
period of time that the Franchise is in effect is referred to as the
4. Nonexclusive Franchise. Nothing in the Ordinance affects the right of the
CITY to grant any Person a franchise to occupy and use the Streets to install,
construct, maintain, upgrade, repair and remove such Person's equipment, poles,
wires, electrical conductors, optical fibers, conduits, subways, manholes;
fixtures, appliances and appurtenances for the purpose of providing
Telecommunications Services or to engage in any other activity in the Streets,
provided that the exercise of such right will not require any existing
grantees facilities to be unreasonably interfered with or relocated.
5. Right of CITY to Use Streets. Nothing in this Ordinance affects the right of the
CITY to occupy and use the Streets to install, construct, maintain, operate,
upgrade, repair and remove its equipment, poles, wires, electrical conductors,
optical fibers, conduits, subways, manholes, fixtures, appliances and
appurtenances or to engage in any other activity in the Streets, provided that
the exercise of such right will not require any existing grantees facilities
to be unreasonably interfered with or relocated.
Provided that the Grantee is not then in default under the terms of this
Agreement, the Grantee shall have the option, subject to City Council approval
and without unreasonable delay, to renew this Franchise for three (3)
consecutive renewal terms of five (5) years each (each, an Extended Term).
The Grantee shall notify the City of its desire to exercise any such renewal
option at least six (6) months in advance of the expiration date or the
applicable Extended Term, as the case may be. During any Extended Term, all of
the terms and conditions of this Agreement shall remain in full force and
effect, unless the parties hereto otherwise mutually agree to modifications.
Street Repair and Relocation
the CITY or any of its departments, agencies, and/or agents, servants, or
employees shall grade, regrade, construct, reconstruct, widen, or alter any
street, except for aesthetic purposes,
the benefit of a third party, or the benefit of the CITY to compete as a
telecommunications provider, it shall be
the duty of the Grantee, upon written request of the CITY, within a reasonable
time as may be agreed to by the parties based on the size and scope of the
work, to alter or relocate its Equipment in the street, using Like-for-Like
construction. Grantees expenses
for such alteration or relocation shall be reimbursed by the City in accordance
with 56‑468.2 of the Code of Virginia, as amended. In the event the Grantee must relocate
Equipment pursuant to this Section, the CITY shall provide, at no cost to
Grantee, permits and alternative space in the Streets or within private
easements for such relocation of Equipment, provided that (1) such alternative
space need not be in the exact same Streets but shall be in reasonable
proximity to the previous location; and (2) such space shall be reasonably
economically and technologically feasible for the relocation of such Equipment.
If the Grantee refuses or
neglects to so protect, alter or relocate Equipment within thirty (30) days after a second notice to the
Grantee by the CITY, the CITY may break through, remove, alter or relocate
Equipment and the Grantee shall pay to the CITY the reasonable, actual costs
incurred in connection with such breaking through, removal, alteration or
relocation as described in the preceding paragraph.
If the City determines at any
time that any of the Grantees facilities or equipment pose a threat to the
health or safety of any person or property, the City may order the Grantee to
remove, relocate or alter Grantee facilities. The Grantee shall promptly take
action necessary to fix any unsafe condition necessary to protect public health
The Grantee shall be entitled to
an apportioned amount of state or federal funds made available to the CITY in
conjunction with the relocation or protection of work. If two or more
telecommunications service providers are eligible for relocation reimbursement,
then available funds shall be shared by those eligible providers by prorating
the reimbursement based on the total reimbursement to which each provider would
shall be given access to the street plans and specifications, and any proposed
modifications to such, in the possession of the CITY, subject to existing law.
8. Requested Relocation of Grantee Facilities. Except for the relocation of facilities at the
GRANTEES expense to make way for new street construction as specified above,
if the CITY or any Person requests that the Grantee move, change, alter, or
relocate Grantee facilities, then the CITY or Person requesting the relocation
shall reimburse the Grantee for all such relocation costs . The cost of such relocation or removal shall include
the cost of installing such facilities in a new location, and the cost of any
lands, or any rights or interest in lands, and any other rights, required to
accomplish such relocation or removal. The cost of relocation or removal shall
include the entire amount paid by Grantee properly attributable to such relocation or removal after deducting therefrom any
increase in the value of the new facility and any salvage value derived from
the old facility.
9. Street Closings. Nothing in this Agreement waives or releases the rights of the City in
and to the Streets. If all or part of the Streets are eliminated,
discontinued, closed or demapped in accordance with applicable law, the
Franchise shall cease with respect to such Streets upon the later to occur of
(a) the effective date that such Streets become eliminated, discontinued,
closed or demapped and any conditions specified by the City are met; or
(b) in the case of any transfer of title to such Streets to a private
Person, the closing date of such transfer. If the elimination, discontinuance,
closing or demapping of all or part of the Streets is undertaken for the benefit
of any private Person, the City shall condition its consent to the elimination,
discontinuance, closing or demapping on the agreement of the private Person on
(i) granting the Grantee the right to continue to occupy and use the
Streets or (ii) reimbursing the Grantee for the reasonable costs of
relocating the affected Equipment.
10. Quality. All work involved
in the installation, maintenance, upgrade, repair and removal of Equipment
shall be performed in a safe, thorough and reliable manner in accordance with industry,
professional, state and federal mandated standards and using materials of good
and durable quality. If, at any time, it is determined by an agency or
authority of competent jurisdiction that any Equipment is harmful to the health
or safety of any Person or property, then the Grantee shall, at its own cost
and expense, promptly correct all such conditions.
11. Non Like-for-Like
Relocation of Grantees Equipment.
If the Grantee is required to relocate its facilities in a like-for-like
(aerial-to-aerial or underground-to-underground) manner, at Grantees expense,
as necessary to accommodate a street improvement project of the City, and the
City or any Person requests that the Grantee relocate its facilities to an
underground location where aerial construction would normally suffice, then the
City or any Person requesting the underground construction shall reimburse the
Grantee for the incremental difference between aerial and underground
construction. The underground
construction costs shall include the cost of any lands, or any rights or
interest in lands, and any other rights, required to accomplish the underground
construction less any salvage value derived from the old facility.
12. New Equipment to be Placed Underground. Where financially and
technically reasonable and consistent with tariffs, the Grantee shall place its
New Equipment underground in locations serving new subdivisions or other areas
within the CITY where Equipment currently does not exist to the extent the CITY
makes the same undergrounding requirement applicable to all users of the
Streets. Existing overhead utility services may remain overhead when repaired,
replaced, upgraded, or increased in capacity.
13. Temporary Raising and Lowering of Wires. The Grantee shall, upon sixty (60) days prior
written notice by the CITY or any Person holding a permit to move any Structure
or within the time that is reasonable under the circumstances, temporarily
raise its cables and wires or otherwise move Equipment to permit the moving of
said Structure. The Grantee may impose a reasonable charge based on its actual
costs and industry standards on any Person other than the CITY for any such
movement of its Equipment and may require payment of such charge prior to such
14. Restoration. The Grantee shall, at its own cost and expense,
replace, repair or restore any damaged property as close as reasonably possible
to its prior condition. The Grantee shall be liable, at its own cost and
expense, to reasonably replace or repair, within a reasonable time to the
condition that existed prior to the commencement of Grantee's activities, any
Street or Structure thereon, thereunder or thereover that may become disturbed
or damaged as a direct result of the Grantee's activities. If Grantee does not
commence such replacement or repair within a reasonable time period as agreed
to by the parties and after notice by the CITY to the Grantee, the CITY may
make such replacement or repair and the Grantee shall pay the reasonable cost
of the same.
15. Compensation/PROW Use Fee.
The CITY has imposed a PROW Use Fee in accordance with Section 56‑468.1
(G) of the Code of Virginia. The City reserves the right to impose at any time
on the Grantee any other fee or payment as may be allowed by federal or
state law. The Grantee shall be obligated to pay the PROW Use Fee and/or any fee or payment authorized by federal or state
law. The City has provided the Grantee appropriate notice of the PROW Use Fee
as required by Section 56‑468.1(G) of the Code of Virginia. If the
PROW Use Fee is eliminated, discontinued, preempted or otherwise is declared or
becomes invalid, the Grantee and the City shall negotiate in good faith to
determine fair and reasonable compensation to the City for use of the Streets
by the Grantee for Equipment to provide Telecommunications Services.
16. No Credits or Deductions.
The compensation and other payments to be made: (a) shall not be deemed to be
in the nature of a tax, and (b) except as may be otherwise provided by Section
56‑468.1 of the Code of Virginia, as amended, shall be in addition to any
and all taxes or other fees or charges that the Grantee shall be required to
pay to the CITY or to any state or federal agency or authority, all of which
shall be separate and distinct obligations of the Grantee.
17. Reservation of Rights.
No acceptance of any compensation payment by the City shall be construed as an
accord and satisfaction that the amount paid is in fact the correct amount, nor
shall such acceptance of any payment be construed as a release of any claim
that the City may have for further or additional sums payable under the
provisions of this Agreement. All amounts paid shall be subject to audit and
recomputation by the City.
18. Remedy for Underpayment. If
(a) as a result of an audit or any other review, the City determines that
the Grantee has not remitted all PROW Use Fees which the Grantee has received
from Subscribers in any twelve (12) month period, and (b) the amounts due
are undisputed or uncontested by the Grantee, then, in addition to making full
payment of the relevant obligation, the Grantee shall pay the City the legal
rate of interest as provided by state law on the past due obligation.
19. Liability Limitation. Neither the CITY nor its officials,
employees, agents, attorneys, consultants or independent contractors shall be
responsible to the Grantee for any liability as a result of or in connection
with the protection, breaking through, movement, removal, alteration, or
relocation of any Equipment by or on behalf of the Grantee or the CITY in
accordance with this Franchise and in connection with any emergency related to
the safety, health and welfare of the public. However, nothing in this Section
shall waive any rights that the Grantee has against the CITY for any willful or
negligent acts or omissions of the CITY.
20. No Obstruction. Except in the case of an emergency involving
public safety, in connection with the installation, maintenance, upgrade repair
or removal of Equipment, the Grantee shall not obstruct the sidewalks streets,
subways, railways, rivers or other traffic to, from or within the corporate
limits of the CITY without the prior consent of the CITY. Equipment of the
Grantee in the Streets shall be located so as to cause minimum interference
with any use of the Streets and adjoining property. As soon as practicable, the
Grantee shall notify the CITY Manager or Public Works Director or their
designee of any emergency necessitating an obstruction under this Section, and
as necessary to protect the public safety, Grantee shall coordinate its
activities in responding to the emergency with the CITY Manager or Public Works
Director or their designee.
21. Safety Precautions. The
Grantee shall, at its own cost and expense, undertake to prevent accidents at
its work sites in, at or on the Streets, including the placing and maintenance
of proper guards, fences, barricades, watchmen and suitable and sufficient
lighting, in accordance with federal and state law.
22. Emergency Activity. The CITY may, at any time, in case of
fire, disaster, or other emergency, as determined by the CITY in its sole
reasonable discretion, cut or move equipment, in which event the CITY shall not
incur any liability to the Grantee unless such liability is due to the
negligent or willful acts or omissions of the CITY. The CITY will make every
reasonable effort to consult with the Grantee prior to any such cutting or
movement of Equipment and Grantee shall be given the opportunity to perform
such work itself. The CITY shall have the obligation to protect Grantees
Equipment to the maximum extent reasonable under the circumstances. Absent
CITY negligence or willful misconduct, all costs to repair or replace such
Equipment shall be borne by the Grantee.
23. Use of CITY Structures. This Franchise does not grant to the
Grantee use of CITY-owned Structures. The terms and conditions of the Grantee's
use of any CITY-owned Structure shall be set forth in a separate ordinance,
agreement, lease or other document, as appropriate.
24. Use of Grantees Facilities.
This Franchise does not grant to the City free use of any Grantee Facilities.
The Grantee may enter into pole attachment, joint-use, or conduit lease
agreements with any party, including the City, regarding use of Grantee
facilities. Grantee shall not charge the City for any Grantee facilities being
utilized by the City for traffic signaling, lighting, police, fire or any other
public safety or governmental purposes as of the effective date of this
agreement. However, Grantee may chose to enter into an agreement and impose
charges going forward for the use of additional Grantee facilities by the City.
25. Licenses and Permits. Except during emergency situations, the
Grantee will secure, prior to commencing construction activities, all necessary
permits and licenses in connection with the Construction of Equipment within,
on, over, or under the Streets. Prior to construction, the grantee shall first
file with the city plans showing the location of proposed facilities. The
location of the proposed facilities shall be subject to review by the Director
of Public Works or his designee who may impose such additional conditions,
requirements or restrictions as reasonably necessary to prevent or minimize
interference with public streets or other public places. During emergency
situations, the Grantee may take all reasonable measures to restore service and
alter its Equipment as necessary to ensure the safety of the citizens of the
CITY. Nothing in this Ordinance waives any CITY ordinance or regulation or the
right of the CITY to require the Grantee to secure appropriate permits or
approvals for use of the Streets.
26. Compliance with Laws; Licenses and Permits. The Grantee shall
comply with all reasonable and lawful local laws, rules, regulations, orders,
or other directives of the CITY issued pursuant to this Ordinance or with
respect to the CITY's management of its Streets, provided they are applied in
an equitable and nondiscriminatory fashion to all users of the Streets. The
Grantee shall have the sole responsibility for obtaining all permits, licenses
and other forms of approval or authorization necessary to install, maintain,
upgrade, repair and remove Equipment within, on, over and under the Streets.
Throughout the Term, the Grantee shall, at its own expense, maintain a
liability insurance policy or policies, in a form reasonably acceptable to the
CITY. Within thirty (30) days of the effective date of this agreement and
prior to the commencement of any work, and annually on the anniversary of this
agreement, and without need of demand, Grantee shall provide certificates of
insurance to the CITY demonstrating that the Grantee is maintaining the
insurance requirements of this section. Each certificate shall include the
CITY as an additional insured. Such policy or policies shall be issued by companies
duly licensed to conduct business in the Commonwealth of Virginia. Such policy
or policies shall insure the Grantee and the CITY and its officials, boards,
commissions, council, elected officials, agents and employees against liability
(a) Commercial General Liability Insurance (including,
but not limited to, premises-operations, broad form property damage,
products/completed operations, contractual liability, independent contractors,
personal injury) with limits of at least $1,000,000 combined single limit for
each occurrence (Limits may be satisfied with primary and/or excess coverage.);
(b) Commercial Automobile Liability Insurance with limits
of at least $1,000,000 combined single limit for each occurrence; and
(c) Workers' Compensation insurance as required by Virginia law; and
(d) Employer's Liability insurance with limits of not
less than $1,000,000 per occurrence.
The foregoing minimum limitation shall
not prohibit the Grantee from obtaining a liability insurance policy or
policies in excess of such limitations.
28. Surety. The CITY may require the Grantee to furnish the CITY
with a form of surety to ensure faithful performance under this agreement in an
amount not to exceed Fifty Thousand Dollars ($50,000.00). The form of the
surety may, at Grantees option, be a performance bond, letter of credit, cash
deposit, or cashiers check. Any required Surety Bond shall be written by a
corporate surety or bank reasonably acceptable to the CITY and authorized to do
business in the Commonwealth of Virginia. Grantee shall provide any required
surety within thirty (30) days of the effective date of this agreement.
29. Bond Form. Any surety bond
that may be required shall contain the following endorsements:
(1) This Bond shall be effective
___________, 20____, and shall remain in full force and effect thereafter for a
period of one year and will automatically extend for additional one year
periods from the expiry date hereof, or any future expiration date, unless the
Surety provides to the Obligee not less than sixty (60) days advance written
notice of its intent not to renew this Bond or unless the Bond is earlier
canceled pursuant to the following. This Bond may be canceled at any time upon
sixty (60) days advance written notice from the Surety to the Obligee.
(2) Neither cancellation, termination nor
refusal by Surety to extend this bond, nor inability of Principal to file a
replacement bond or replacement security for its obligations under said
Agreement, shall constitute a loss to the Obligee recoverable under this bond.
30. Indemnification of CITY. The
Grantee shall defend, indemnify and hold harmless the CITY, its officials,
employees, agents, and attorneys, from and against all liabilities, whether
special, incidental, consequential and all other reasonable damages, costs and
expenses (including reasonable attorneys' fees) arising solely out of or in
connection with the installation, maintenance, upgrade, repair or removal of
Equipment except to the extent that such liabilities, damages, costs and
expenses are caused by the CITY's negligence or willful misconduct. The CITY
shall notify the Grantee within forty-five (45) days of any claims, demands, or
actions (Claims) covered by this indemnity after which the Grantee shall
defend such Claims. Provided that failure to give the above notice will not
relieve the Grantee from its obligation to indemnify the City unless the Grantee
is materially prejudiced by such failure. The Grantee shall be entitled to have
sole control over the defense through counsel of its own choosing and over
settlement of such claim, and the CITY shall cooperate in the defense of such
Claims. The City shall promptly notify the Grantee of any claim filed against
the City which may be covered by this section. The foregoing indemnity obligations
shall not apply to Claims arising from the negligence or willful misconduct of
City; however, they shall apply to Claims arising from the joint negligence of
the Grantee and City, provided that in such cases, the amount of the Claims for
which the City shall be entitled to indemnification shall be limited to that
portion attributable to the negligence or willful misconduct of the Grantee.
31. Statutory Indemnification.
City does not waive any indemnification that it has under the laws of the
32. Transfer of Franchise. The
Grantee shall not transfer ownership or control of the System or Franchise
without the written notice to the City. The Grantee, or its successor in
interest, shall submit to the City, within forty-five (45) days after closing
of the transaction, a written certification, executed by an authorized senior
officer or executive of the Grantee, or its successor in interest, that
subsequent to the transaction: (i) the Grantee or its successor in
interest shall continue to hold all required certificates of public convenience
and necessity, or such other successor authorization, issued by the Virginia
State Corporation Commission; and (ii) the Grantee or its successor in
interest shall continue to be bound by the terms and conditions of this
Agreement, including but not limited to, the liability insurance policy and
performance bond/security fund requirements of Section 26 and Section 27 of
33. Termination Events. The CITY, at its option, may terminate the
Ordinance upon any material breach of the Ordinance by the Grantee should the
Grantee fail to correct such breach within ninety (90) days after receiving
specific written notice of such material breach from the CITY or, if the breach
cannot reasonably be corrected within 90 days, within a reasonable time as
agreed to by the parties.
34. Entire Ordinance. This Ordinance embodies the entire
understanding and agreement of the CITY and the Grantee with respect to the
subject matter hereof and merges and supersedes all prior representations,
agreements and understandings, whether oral or written, between the CITY and
Grantee with respect to the subject matter hereof, including, without
limitation, all prior drafts of this Ordinance and any and all written or oral
statements or representations by any official, employee, agent, attorney,
consultant or independent contractor of the CITY or the Grantee.
35. Delays and Failures Beyond Control of Grantee.
Notwithstanding any other provision of this Ordinance, the Grantee shall not be
liable for delay in performance of, or failure to perform, in whole or in part,
its obligations pursuant to this Ordinance due to strike, war or act of war
(whether an actual declaration of war is made or not), insurrection, riot, act
of public enemy, accident, fire, flood or other act of God, technical failure,
terrorism, sabotage or other events, where the Grantee has exercised all due
care in the prevention thereof, to the extent that such causes or other events
are beyond the control of the Grantee and such delay in performance or failure
to perform affects only part of the Grantee's capacity to perform, the Grantee
shall perform to the maximum extent it is able to do so and shall take all
steps within its power to correct such cause(s).The Grantee agrees that in
correcting such cause(s), it shall take all reasonable steps to do so in as
expeditious a manner as possible.
36. Notices. All notices, statements, demands, requests, consents,
approvals, authorizations, offers, agreements, appointments, designations, or
other direction or communication hereunder by any party to another shall be in
writing sent to the following address:
CITY: City of Hampton, Virginia
Hampton City Hall, 8th Floor
22 Lincoln Street
Hampton, VA 23669
Verizon Virginia Inc
Attention: Vice President and General Counsel
600 E. Main Street, Suite 1100
Richmond, VA 23219
37. Organization, Standing, Power, Authorization and Enforceability. The Grantee is a Public Service Corporation duly
organized, validly existing and in good standing under the laws of the Commonwealth of Virginia, and is duly authorized to do business in the CITY. The Grantee
has all requisite power and authority to execute, deliver and perform this
Ordinance and all other agreements entered into or delivered in connection with
or as contemplated hereby.
38. Binding Effect. This Ordinance shall be binding upon and inure
to the benefit of the CITY and the Grantee and their respective successors
permitted transferees and assigns.
39. Headings; Other Terms. The
headings contained in this Ordinance are to facilitate reference only, do not
form a part of this Ordinance, and shall not in any way affect the construction
or interpretation hereof. Terms such as "hereby", "herein",
"hereof', "hereinafter", "hereunder", and
"hereto" refer to this Ordinance as a whole and not to the particular
sentence or paragraph where they appear, unless the context otherwise requires.
The term "may" is permissive; the terms "shall" and
"will" are mandatory, not merely directive. All references to any
gender shall be deemed to include all others, as the context may require. Terms
used in the plural include the singular, and vice versa, unless the context
40. No Third Party Beneficiary
Rights. Nothing in this Franchise is intended to interfere
with any tariffs, contracts or other arrangements between the Grantee and a
third party, or to create any third party beneficiary rights.
41. Effective Date: This ordinance shall be in force from its passage.
the regular meeting of the City Council of the City of Hampton, Virginia held
on July 16, 2008.
Signed by ____________________________ Date
Molly Joseph Ward, Mayor
Attested by ____________________________ Date _________________
Katherine K. Glass
Clerk of the Council
The terms and conditions of this franchise are agreed to by
VERIZON VIRGINIA INC.
Robert W. Woltz, Jr.