January 2, 2019

TO: Mayor West, Vice-Mayor de Triquet and Members of the City Council

City of Chesapeake

Office of the City Attorney 306 Cedar Road

Chesapeake. Virg inia 23322 (757) 382-6586

Fax (757) 382-8749

RE: AN ORDINANCE GRANTING A FRANCHISE TO ALL ACCEPTED RESPONSIBLE BIDDERS, FOR THE TERM AND UPON THE CONDITIONS HEREIN STATED TO CONSTRUCT, INSTALL, MAINTAIN, LOCATE, MOVE, OPERATE, PLACE, PROTECT, RECONSTRUCT, REINSTALL, RELOCATE, REMOVE AND REPLACE TELECOMMUNICATION FACILITIES, FIDER OPTIC OR OTHER CABLE AND RELATED FACILITIES, INCLUDING WITHOUT LIMITATION, RADIOS, ANTENNAS, AND ASSOCIATED TRANSMITTING AND RECEIVING EQUIPMENT, FOR THE PROVISION OF TELECOMMUNICATIONS SERVICE IN THE PUBLIC STREETS AND PUBLIC RIGHTS-OF-WAY IN THE CORPORATE LIMITS OF THE CITY OF CHESAPEAKE, VIRGINIA.

Please find enclosed an ordinance containing the City's terms, conditions and requirements for granting a franchise to use the Citfs rights-of-way for small cell wireless telecommunication services to Cell co Partnership d/b/a Verizon Wireless. A copy of this ordinance was submitted to Council at the December 11,2018, meeting. It was continued to the January 8, 2019, meeting in order to allow Verizon to submit the original signed documents to the City.

Council accepted Verizon' s bid at the December 11,2018, meeting. Accordingly, it would be appropriate for Council to consider approval of the ordinance.

Please advise if you would like any additional information

With best regards, I am

JPS/jhp Enclosures

cc: James E. Baker, City Manager Sandy Madison, City Clerk

Sincerely yours,

Lr.ir~ J/o~ Tsfro~an City Attorney ·

Kelly Lackey, Deputy City Attorney Richard Hartwick, Assistant City Attorney

"The City of Chesapeake adheres to the principles of.equal employment opportunity. This policy extends to all programs and services supported by the City.·

City Attorney's Office City of Chesapeake Municipal Center 306 Cedar Road Chesapeake, Virginia 23322 (757) 382-6586 Fax: (757) 382-8749

AN ORDINANCE GRANTING A FRANCHISE TO (NAME OF COMPANY), FOR THE TERM AND UPON THE CONDITIONS HEREIN STATED TO CONSTRUCT, INSTALL, MAINTAIN, LOCATE, MOVE, OPERATE, PLACE, PROTECT, RECONSTRUCf, REINSTALL, RELOCATE, REMOVE AND REPLACE TELECOMMUNICATION FACILITIES, FIBER OPTIC OR OTHER CABLE AND RELATED FACILITIES, INCLUDING WITIIOUT LIMITATION, RADIOS, ANTENNAS, AND ASSOCIATED TRANSMITTING AND RECEIVING EQUIPMENT, FOR THE PROVISION OF TELECOMMUNICATIONS SERVICE IN THE PUBLIC STREETS AND PUBLIC RIGHTS-OF-WAY IN THE CORPORATE LIMITS OF THE CITY OF CHESAPEAKE, VIRGINIA.

WHEREAS, pursuant to Article VII, Section 9 of the Constitution of Virginia and

Chapter 21 ofTitle 15.2 of the Virginia Code and Chapter 15.1 ofTitle 56 of the Virginia

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

occupancy of the streets and public rights-of-way, including for wireless facilities; and

WHEREAS, (NAME OF COMPANY). is a corporation duly organized and existing

under the laws ofthe State of [NAME OF STATE); and

WHEREAS, [NAME OF COMPANY), is a "Wireless infrastructure provider" or

"wireless provider" as defined by Code of Virginia§ 56-484.26; and

WHEREAS, (NAME OF COMPANY), hereinafter "Grantee", desires to use and

occupy the streets and public rights-of-way located within the City for the purposes of

constructing, installing, operating, and maintaining network facilities for teleconununications

in the City of Chesapeake; and

WHEREAS, the City is agreeable to allowing Grantee to use the streets and public

rights-of-way in accordance with the tenns and conditions hereinafter set forth and subject to

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City Attomey's Office City of Chesapeake Municipal Center 306 Cedar Road Chesapeake, Vrginia 23322 (757) 382-6586 Fax; (757) 382·8749

any current lawful telecommunications regulatory ordinance and those that may be adopted

by the City in the future; and

WHEREAS, the City intends to exercise, to the fullest extent pennitted by applicable

law, and in accordance with Sections 15.2-2100, et seq. of the Code ofVirginia, its authority

with respect to the regulation of the occupation and use of the public streets in connection

with the construction, maintenance, operation and repair of Telecommunication facilities; and

WHEREAS, the City, by written notification published in The VirginianMPilot on

-----J ___ _J 2018 and ______ _. 2018, advertised the notice of the

City Council public hearing concerning the Franchise (hereinafter defined) and solicited bids

for the Franchise; and

WHEREAS, on _____ , ---.J 2018, the City Council at its public hearing

received and opened bids for the Franchise and awarded the Franchise to Grantee.

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

Chesapeake, Virginia:

A. The Franchise is awarded to Grantee, for an initial period ofTen (10) years

with Three (3) options to renew the Term (defined below) for an additional Five (5) years.

B. The tenns and conditions of the Franchise, as agreed to by the parties are as

follows:

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City Attorney's Office City of Chesapeake Municipal Center 306 Cedar Road Chesapeake, VJrQinia 23322 (757) 382-0586 Fax: (757) 382-8749

ARTICLE I.

' Definitions. For the purpose of this Ordinance, and the interpretation and enforcement

thereof, the following words and phrases shall have the following meanings, unless the

context of the sentence in which they are used shall indicate otherwise:

"Abandonment or Abandon, means where a Franchise Ordinance is granted for

Telecommunication Facilities and installation of said Telecommunication Facilities has

commenced and subsequently is ended or interrupted, for whatever reason, for a period of

twelve consecutive months, the Telecommunication Facilities or any parts thereof shall be

deemed to be abandoned. Should all of the Telecommunication Facilities be detennined to be

abandoned then the Franchise Ordinance shall automatically expire and become void.

(a) The City Manager shall within thirty (30) days thereof, by certified mail, return receipt

requested, notify the Grantee of record of the Telecommwtication Facilities that have been

determined abandoned.

(b) If the identity or whereabouts of the Grantee is unknown or not able to be ascertained, and

after notice pursuant to subsection (a), above, has been made to the last known address of any

known Grantee, the City Manager shall give notice by publication once each week for two

weeks in a newspaper of general circulation in the city.

Such notice, when sent in accordance with these requirements, shall be sufficient to prove

abandonment whether or not it was ever received.

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City Attorney's Office City of Chesapeake Municipal Center 306 Cedar Road ~sapeake, \f~n~ 23322 (757) 382-6586 Fax: (757) 382-8749

''Affiliate" means a person or entity that directly, or indirectly, through one or more

intennediaries, owns, controls, is owned or controlled by, or is under common ownership or

control with another person or entity.

"Building-supported antenna., is defined as one (I) or more antenna affixed to a building or

structure at least fifty (SO) feet in height for purposes of supporting broadcast or receiving

equipment of any frequency or electromagnetic wave, or any similar system of wires, poles,

rods, reflecting discs, or similar devices used for the transmission or reception of

electromagnetic waves.

"Cable service" shall have the same meaning as in the 47 U.S. Code§ 522, and shall be

synonymous with the term "cable television service."

"City" means the City of Chesapeake, Virginia, and where appropriate to the context, its

officers, agents, employees and volunteers.

"City Attorney" means the City Attorney or his designee.

"City Council" means the City Council of the City of Chesapeake.

"City Engineer" means the City Engineer or his designee.

"City Manager" means the City Manager or his designee.

, "City property" means and includes all real property owned by the City, including all

property held in a proprietary capacity by the City.

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City Attorney's Office City of Chesapeake Municipal Center 306 Cedar Road Chesapeake, Virginia 23322 (757) 382-6586 Fax: (757) 382-8749

"Company Pole(s)" means any structure installed or approved to be installed by or on behalf

of Grantee, in Public streets and Public rights-of-way, after the effective date of this

Ordinance.

"Communication small cell facilit)l' is defined as a wireless facility, which provides and

extends wireless communications systems' service coverage and increases network capacity.

Communication small cell facilities consist of associated antennas that are attached to Wireless

support structures or other existing poles, buildings or structures and mounting and mechanical

equipment, all of which meet the following qualifications: 1) Each antenna is located inside an

enclosure of no more than six (6) cubic feet in volume, or, in the case of an antenna that has

exposed elements, the antenna and all of its exposed elements could fit within an imaginary

enclosure of no more than six (6) cubic feet; and 2) All other wireless equipment associated

with the facility has a cumulative volume of no more than twenty eight (28) cubic feet, or higher

if permitted by Virginia Code Section 15.2-2316.3, 1950, as amended. The volume calculation

excludes electric meters, concealment, telecommunications demarcation boxes, ground·based

enclosures, back-up power systems, grounding equipment, power transfer switches, cut-off

switches, and vertical cable runs for the connection of power and other services.

"Communication Tower" is defined as a tower, monopole, pole like structure or antenna

which supports communication (broadcasting and/or receiving) equipment utilized by

commercial, government or other corporate, public and quasipublic users. Towers include

radio, television, cellular telephone, personal communication services (PCS), microwave and

other similar communications facilities, satellite earth station and building-supported anterutas

which are more than twenty-two (22) feet in height. The towers may be self-supporting or

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guy-supported. The regulations set out below do not apply to the following: (I) amateur radio

communications ante11Il8S; (2) antennas and dishes limited exclusively to home use; (3) dish

antennas two (2) meters or less in diameter in areas zoned for commercial or industrial use

and dish antennas one (I) meter or less in diameter regardless of zoning; (4) towers and

antennas used as accessory structures in industrial zoning districts, which meet the height

restrictions in section 14-600 of the Chesapeake Zoning Ordinance, as amended; and (5)

! towers owned by the city. Please see Article VU of this ordinance.

"Conduit" means any materials, such as metal or plastic pipe, that protects wire, cable, lines,

fiber optic cable, or other technology for the provision of telecommunications service.

"Duct" means a pipe, tube, channel or similar item for carrying wires, lines, cables, fiber optic

cable, or other technology for the provision of telecommunications service.

"Ejfoctive Date" means thirty (30) days from and after the passage of this Ordinance.

"Fiber optic or other cable and related facilities" means fiber optic cables or other cable,

facilities, conduits, converters, splice boxes, handholds, manholes, vaults, equipment, drains,

surface location markers, appurtenances and related facilities located or to be located by

Grantee in the public streets or rights-of· way of the City used or useful for the transmission of

telecommunications services.

"Grantee" means Grantee.

"Grantor" or "City" means the City of Chesapeake.

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City Attorney's Office City of Chesapeake Munidpal Center 306 Cedar Road Chesapeake, Vwginia 23322 (757) 382-6586 Fax: (757) 382-8749

"Grantor Pole(s) " means any utility pole, light pole, traffic signal pole, or other pole-like

structure owned by the City of Chesapeake and capable of supporting a Small Cell Facility

attachment.

"Micro-wireless facility" is defined as a Small Cell FacUity that is no larger than twenty four

(24) inches in length, fifteen (1 5) inches in width, and twelve (12) inches in height and that

has an exterior antenna, if any, no longer than eleven (II) inches.

"Public streets and public rights-of-way" or "public ways" include the surface of, and the

• i space above and below, any public street, road, highway, avenue, way, bridge, viaduct, aJley

or other public right-of-way, including unimproved public right of ways, now or hereafter

held by the City for the purpose of public travel, whether present or future, to the extent of the

City's right, title, interest or authority to grant a franchise to occupy and use such streets and

easements for the purpose of providing telecommwl.ications services.

"Public works project or public improvements" include, without limitation, the construction,

realigrunent, paving or repaving, or other work on any public street or public right-of-way,

change of grade or alignment of any public street or public right-of-way, the construction or

reconstruction of any water, sanitary sewer, storm sewer, force main, drainage or

communications facility of the City.

"Small Cell Facility" means a wireless facility that meets both of the following qualifications:

(i) each antenna is located inside an enclosure of no more than six (6) cubic feet in volume,

or, in the case of an antenna that has exposed elements, the antenna and all of its exposed

, · elements could fit within an imaginary enclosure of no more than six (6) cubic feet and (ii) all

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City Attorney's Office City of Chesapeake Munidpal Center 306 Cedar Road Chesapeake, Vrgilia 23322 (757) 382-6586 Fax: (757) 382-8749

other wireless equipment associated with the facility has a cumulative volume of no more

than twenty eight (28) cubic feet, or such higher limit as is established by the Federal

Communications Commission. The following types of associated equipment are not included

in the calculation of equipment volume: electric meter, concealment, telecommunications

demarcation boxes, back-up power systems, grounding equipment, power transfer switches,

cut-off switches, and vertical cable runs for the connection of power and other services.

"Stealth tower" is defined as a tower or antenna that is designed to blend into the area

surrounding the proposed facility such as. but not limited to, artificial trees, clock towers, bell

towers, steeples, water towers, light poles, flag poles, slick sticks and similar mounting

structures that camouflage or conceal the presence of antennas or towers.

"Structures" means anything constructed, erected, installed or otherwise put in place which

has a permanent location on or in the ground or which is attached to something having a

permanent location on or in the ground; provided, however, that this definition shall not apply

to objects or facilities that are wholly underground. Structures includes buildings, signs,

fences, tanks, poles, lines, fixtures, equipment, and appurtenances of the City.

"Telecommunications facilities" means the plant, equipment and property, including, but not

limited to, the poles, pipes, mains, conduits, ducts, fiber optic and other cables, circuits, and

wires, antennae, radios, new Wireless support structures and any other equipment and

property used by Grantee to provide telecommunications service. Telecommunications

facilities pennitted hereunder expressly includes fiber cable in, on or over the public rights of

way that may be installed by Grantee. In addition, Grantee may use fiber of any

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authorization of such third-party provider and in accordance with the applicable pennitting

requirements of the City. Telecommunications facilities shall expressly include Wireless

Facilities.

"Telecommunicalions service" means the providing or offering for rent, sale or lease, or in

exchange for other value received, the transmittal of signals, including but not limited to,

voice, data, image, graphic or video or other programming infonnation, except cable

television service, between or among points by wire, lines, cable, fiber optics, circuits, laser or

infrared, microwave, radio, or satellite or other Telecommunication facilities, but not

including cable television service. Telecommunications service specifically includes wireless

services as defined in Chapter 15.1 of Title 56 of the Virginia Code, as amended.

"Third Party Pole(s)" means any existing structure that is not owned, in whole or in part by

the City or Grantee and is installed within the Public streets and Public rights-of-way as of the

I date of adoption of the ordinance authorizing this Ordinance. Third Party Poles include, but

are not limited to, any structure that is owned, operated or owned and operated by a public

service corporation as defmed in Virginia Code Ann.§ 15.2-J, as amended.

"Wireless facility" means equipment at a fixed location that enables wireless communications I 1 between user equipment and a communications network, including (i) equipment associated

with wireless services, such as private, broadcast, and public safety services, as well as

unlicensed wireless services and fixed wireless services, such as microwave backhaul, and (ii)

1 • radio transceivers, antennas, coaxial, or fiber-optic cable. regular and backup power supplies,

and comparable equipment, regardless of technological configuration.

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City Attorney's Office City of Chesapeake Municipal Center 306 Cedar Road Chesapeake, Virginia 23322 (757) 382-6586 Fax: (757) 382-8749

"Wireless infrastructure provider" means any person, including a person authorized to

1

provide telecommunications service in the state, that builds or installs transmission

equipment, wireless facilities, or Wireless support structures, but that is not a wireless

services provider.

"Wireless services provider" means a provider of wireless services.

"Wireless support structure" means a freestanding structure, such as a pole, pole-like

structure, monopole, tower, either guyed or self-supporting, or suitable existing structure or

alternative structure designed to support or capable of supporting wireless facilities. "Wireless

support structure .. does not include any telephone or electrical utility pole or any tower used

for the distribution or transmission of electrical service.

"Zoning Ordinance" means the Chesapeake Zoning Ordinance, as amended.

ARTICLE II.

Gnnt of Authority. (a) Subject to the tenns of this Ordinance, the City hereby grants to

Grantee the non-exclusive right to construct, install, maintain, locate, move, operate, place,

protect, reconstruct, reinstall, relocate, remove and replace telecommunication facilities, fiber

optic or other cable and related facilities, including without limitation, radios, antennae, and

associated transmitting and receiving equipment, for the provision of telecommunications

service in the public streets and public rights-of-way in the City. Grantee shall have the right

to install or relocate Telecommunication facilities to Grantor Poles or structures at Grantee's

expense, upon request of Grantee and execution of a separate support structure agreement

between Grantee and the City on terms and conditions satisfactory to the parties. Grantee

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City Attorney's Office City of Chesapeake MuRcipaJ Center 306 Cedar Road Chesapeake, Vrginla 23322 (757) 382·6586 Fax: (757) 382-8749

shall be solely responsible for obtaining any required consents from State agencies or private

parties to the extent that its operations affect State or private property. It is expressly agreed

that this Ordinance does not give Grantee the right to occupy any public rights-of-way with

permanent aboveground cabinets, pads and other similar structures except pursuant to (i) the

express approval of the City pursuant to the applicable provisions of Chapter 66 of the

Chesapeake City Code, the Chesapeake Zoning Ordinance, as amended, and (ii) the Code of

Virginia, 1950, as amended. Nothing in this Ordinance shall be construed as consent by the

City for Grantee to provide cable service television service within the City.

(b) Grantee hereby accepts the franchise and agrees to comply with all of the terms of the

Ordinance, as well as with all applicable Federal, State, Chesapeake City Code, Chesapeake

Zoning Ordinance and local laws, ordinances, resolutions, codes, rules and regulations,

regardless of whether they are expressly referenced in this Ordinance.

. . (c) Grantee acknowledges that this grant of authority is for the benefit of Grantee only,

and that Grantee is not authorized to lease, sublease, assign or otherwise allow another person,

company, entity or providers to use or occupy the public rights-of-way except in accordance

with provisions of this Ordinance. However, notwithstanding the foregoing, Grantee will be

permitted to offer and provide its Telecommunication facilities and/or Wireless facilities to its

customers, licensees and end users.

(d) Grantee acknowledges that, to the extent allowed by State and Federal law, the City

1 has the authority to adopt ordinances regulating the use of the public rights-of-way, so long as

such ordinances apply equally to all certificated providers of telecommunications services and

are related to using the public streets and public rights-of-way in the City. Grantee agrees to Page 11 of49

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be bound by all current and such future lawful ordinances so long as it operates

telecommunication services or has property or equipment within the public streets or rights-

of-way located in the City.

(e) This Ordinance is not a grant by the City of any fee simple or other property interest

except as expressly contemplated by this Ordinance and is made subject and subordinate to

the prior and continuing right of the City to use the public streets and public rights-of-way

occupied by Grantee for the purpose of laying, installing, maintaining, repairing, protecting,

, replacing, and removing sanitary sewers, water mains, stonn drains, gas mains, poles and

City Attorney's Office City of Chesapeake Municipal Center 306 Cedar Road Chesapeake, Virginia 23322 (757) 382-6586 Fax: (757) 382-8749 ,,

other equipment for municipal uses and with the right of ingress and egress, along, above,

over, across and in said public streets and public rights-of-way.

(f) This Ordinance shall be in full force and effect thirty (30) days after the date of its

approv~l by the City Council governing body; provided, however, that notwithstanding such

approval, this Ordinance shall not become effective until all required bonds, letters of credit,

certificates of insurance and other instruments required by this Ordinance have been filed

with, and accepted and approved by the City, which acceptance and approval shall not be

unreasonably delayed, conditioned or withheld.

ARTICLE III.

Term of Ordinance. (a) The term of this Ordinance shall be for an initial term often (10)

years, commencing on the effective date of this Ordinance, with three (3) options for renewal

for tenns of five (S) years each upon mutual written agreement signed by the Chesapeake City

Manager and an authorized Chief Executive Officer (or designee) of Grantee, unless sooner

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tenninated as provided herein or otherwise provided by Jaw. Grantee shall notify the City in

writing of its desire to exercise any such renewal option at least ninety (90) days in advance of

the expiration of the then current Franchise term. Upon tennination of this Ordinance as

herein provided, and unless the parties are in active good faith negotiation of a replacement

ordinance or otherwise and agree in writing to an extension, Grantee shall be prohibited from

further access to the public rights..of-way in the City of Chesapeake. In no event, however,

shall the overall Tenn of this ordinance exceed forty (40) years, which is inclusive of any

and all extensions. If written notice is not provided prior to ninety (90) days of expiration

of the Term, then such failure to notify shall in no way be construed as a renewal or

extension of the Franchise under the tenns hereunder. Notwithstanding this section, or any

other provision of this Ordinance, Grantee has the right to terminate this Ordinance for any

reason ("Right to Unilateral Termination") upon ninety (90) days written notice of its

intention to exercise its Right to Unilateral Tennination. Upon such notice, Grantee shall

remove its telecommunication facilities in the manner set forth in this ordinance.

ARTICLE IV.

Termination. (a) The City, at its option, may terminate the Ordinance upon any material

breach of the Ordinance by the Grantee, as determined by the City subject to the parameters

below, should the Grantee fail to correct such breach within thirty (30) days after receiving

written notice or within a reasonable time as agreed to by the parties in writing. Should the

Grantee make any legal challenge to the City's termination decision, the City agrees to delay

exercising its removal rights as delineated herein until final resolution of such legal challenge.

City Attorney's Office • 1 A material breach shall include, but is not limited to the following: City of Chesapeake Municipal Center 306 Cedar Road Venion 11-05-2018 Chesapeake, Virginia 23322 (757) 382-6586 Fax: (757)382~749

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City Attorney's Office City of Chesapeake Municipal Center 306 Cedar Road Chesapeake, Vrginia 23322 (757) 382-6586 Fax: (757) 382·8749

{1) any failure of the Grantee to maintain the insurance required by Article

XI of this Ordinance;

(2) any failure of the Grantee to maintain any Performance Bond required

by Article XII of this Ordinance;

(3) any failure of the Grantee to comply with any material provision of this

Ordinance that is not cured within thirty (30) days after the Grantee

receives written notice from the City; and

( 4) any failure of the Grantee to comply with any material tenn, condition

or provision of this Ordinance or failure to comply with applicable laws

of the Chesapeake City Code or Chesapeake Zoning Ordinance.

Voluntary Termination. Upon sixty (60) days written notice, the Grantee may choose to

tenninate the Franchise upon expiration of the Tenn, unless the same be sooner voluntarily

surrendered by said Grantee or wtless the same be sooner forfeited as provided by federal or

state law, including this ordinance.

Rights Upon Termination. In the event of any termination of this Ordinance. whether

pursuant to this Article or by the expiration of the Tenn, the Grantee shall remove its facilities,

or request in writing that the City allow its facilities to remain in place. If the Grantee makes a

written request to allow its facilities to remain in place, the Grantee must also submit for the

City's approval a complete description of the facilities and the date upon which Grantee intends

to discontinue its use of the facilities. Notwithstanding any approval by Grantor that a requested

facility may remain in place, the City may require, at a later date and at any time, that Grantee

remove the facility from the Street, or that it must modify that facility to protect the public

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health, welfare, safety and convenience, or otherwise serve the public interest. The City may

also require Grantee to perform a combination of modification and removal of the facility.

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

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

the City, Grantee shall be responsible for all necessary repairs and relocations of the facility,

maintenance of the public street in the same manner and degree as if the facility were in active

use, maintenance of insurance requirements as provided in this Ordinance and Grantee shall

retain all liability for such facility. If Grantee abandons its facilities, the City may choose to

use such facilities as authorized by state or federal law. Upon the termination of the Ordinance,

the facilities as well as the property, if any, of the Grantee in the Public streets, Public rights-

of-ways or public ways and other public places shall thereupon, without compensation to the

, Grantee, or upon the payment of a fair valuation become the property of the City; but the

Grantee shall be entitled to no payment by reason of the value of the franchise. Any such

facilities or property acquired by the City may be sold or leased or, if authorized by general

law, maintained, controlled, and operated by the City.

Removal Upoa Termlaation. Upon the Grantee's decision to remove any facility at the

tennination of this Ordinance or the City•s decision not to allow any facility to remain in place

at the termination of this Ordinance, the Grantee shall remove, at the Grantee's sole cost and

expense, all, or any portion designated by the City, of the facilities in the public streets in

accordance with all applicable requirements of the City and subject to the following:

(a) in removing the facilities in the public streets, or part thereof, the

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

be made by it and shall leave, in all material aspects, all public streets and other property

in as good or better condition as that prevailing prior to the Grantee's removal of the

facilities from the public streets and without affecting, altering or disturbing in any way

any utility facilities or electric or other cables, wires, Structures or attachments.

(b) the City shall have the right to inspect and approve the condition of such Streets

after removal and, to the extent that the City determines that said Streets and other

property have not been left in materially as good condition as that prevailing prior to the

Grantee's removal of the facilities, the Grantee shall be liable to the City for the cost of

restoring the Streets and other property to said condition;

(c) the Performance Bond, liability insurance and indemnity provisions of this

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

associated repair of all Streets, and for not less than one year thereafter; and

(d) removal shall commence within ninety (90) days of the Grantor's issuance of a

notice to remove and shall be substantially completed within twelve (12) months

thereafter including all associated repair of the Streets.

' Failure to Commeace Removal. If, in the reasonable judgment of the City, the Grantee fails

to commence removal of the facilities in the public streets within ninety (90) days after the

City's notice to remove, or if the Grantee fails to substantially complete such removal, including

all associated repair of the public streets and public property, within twelve (12) months

thereafter, then, the City or its designee, shall have the right to remove the facilities installed

by the Grantee in the public streets at the Grantee's cost and expense.

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ARTICLEV.

Abandonment. Upon the tcnnination or expiration of this Ordinance, including any renewal

period, or if any portion of Grantee' facilities is abandoned, Grantee shall remove its

Telecommunication facilities at its own expense; provided, however, that if directed by the

City Manager in writing, Grantee may abandon some or all of the facilities in place, and such

facilities shall become the property of the City upon their abandorunent. If in the event

Grantee fails to remove its facilities within one hundred twenty (120) days after abandonment

or termination, except facilities abandoned in place at the direction of, or with the consent of

the City, the City may cause such facilities to be removed, without further notice, and charge

the cost for removal to Grantee, which shall pay such costs within thirty (30) days of the

demand to do so. The City may collect such costs, expenses and attorney's fees as debts owed

to the City by making a claim against Grantee's bond or bringing action in any court of

competent jurisdiction to enforce this section. The City shall also have a lien on the property

of Grantee in an amount equal to all such costs, expenses, and legal fees associated with

collection efforts.

ARTICLE VI.

Compliance With Applicable Law. Grantee shall at all times during the term of this

Ordinance, including any renewal period, comply with all applicable federal, state, and local

laws, ordinances, and regulations. Expressly reserved to the City is the right to adopt. in

addition to the provisions of this Ordinance and existing laws, such additional ordinances and

regulations as are necessary for the lawful exercise of its police power for the benefit and

safety of the public. Grantee shall notify the City in writing within sixty (60) days of any

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violation, suspension, or revocation of any Federal, State or local laws, ordinances or

regulation.

ARTICLE VII.

Construction and InstaUatlon. All facilities of Grantee shall be constructed, installed and

located in accordance with the following tenns and conditions, unless otherwise specified by

the City.

(a) Grantee shall comply with (i) Chesapeake City Code and (ii) the Chesapeake Zoning

· Ordinance, as amended, including but not limited to include Section 13-600 et seq.

ARTICLE VIII

Location and Relocation of Facilities.

(a) Whenever all existing electric utilities, cable facilities or Telecommunications Facilities

I are located underground within a particular segment of a street or public right-of-way of the

City, Orantee shall also install its Telecommunications Facilities underground. Provided,

however, that Grantee reserves the option to attach Telecommunications Facilities to Third

Party Poles or, upon approval of the City, Grantor Poles or Company Poles, as are appropriate

for Grantee's Teleconununications Facilities and can safely bear the weight or wind loading

thereof in accordance with the requirements of the Chesapeake Zoning Ordinance.

(b) Whenever existing overhead electric utilities, cable facilities or Telecommunication

facilities are relocated underground within a particular segment of a street or public right-of­

way of the City, Grantee shall relocate its facilities within a reasonable period of time, after

Page 18 of49 Venlon 11..0~2018

notification by the City that such facilities must be relocated. However, such time shall not

exceed six (6) months unless another time is agreed to by the City and Grantee in writing.

Absent extraordinary circwnstances or undue hardship as reasonably determined by the City,

such relocation shall be made concurrently to minimize the disruption of the public streets or

public rights-of-way. The City acknowledges that antennas cannot always physically operate

underground. If Grantees small cell wireless facilities cannot operate underground and the

existing pole or structure upon which Grantees facilities are attached is eliminated, Grantee

may attach Telecommunication facilities to Third Party Poles or, upon approval of the City,

Grantor Poles or Company Poles, as are appropriate for Grantee's Telecommunication

facilities and can safely bear the weight or wind loading thereof in accordance with the

requirements of the Chesapeake Zoning Ordinance. If there should be no available poles as

1 mentioned above, Grantee shall apply for a permit for a new Wireless support structure as

required by this ordinance and the Chesapeake Zoning Ordinance.

Should Grantee during installation or anytime thereafter, undergrounds any

Telecommunications facilities as part of its installation of Telecommunications facilities

pursuant to this Ordinance, Grantee shall, at no material cost or expense to Grantee, provide

reasonable advanced notice to the City and cooperate in good faith with the City, at the City's

request, to provide the City with an opportunity to underground City facilities alongside

Grantee's Telecommunication facilities.

(c) Grantee, including its contractors and consultants, prior to any construction or work

being commenced, is required to obtain at its sole expense, all applicable permits, including

City Attorney's Office any application and permit for, street opening, if any public streets will be disturbed, and City of Chesapeake Municipal Center Page 19 of 49 306 Cedar Road Venlon 11-05-2018 Chesapeake, Vrginia 23322 (757) 382-6586 Fax: (757) 382·8749

street, lane or sid.ewalk closures. Grantee shall obtain all required pennits for the construction

or installation of its facilities as required in this Ordinance.

(d) In the performance and exercise of its rights and obligations under this Ordinance, Grantee

shall not interfere in any manner with the existence and operation of any public street and

public or private right-of-way, sanitary sewer, water line, storm drain gas main, pole,

overhead or underground electric and telephone wires, television cables, public works.

facilities of other telecommunication providers, or City property, without the prior written

approval of the City.

(e) Except as may be expressly provided herein, nothing in this Ordinance shall be construed

to abrogate or limit the right or ability of the City to perform any public works or public

improvements in the area subject to this Ordinance. If any facilities of Grantee interfere with

the construction, operation, maintenance, repair or removal of such public works or public

improvements, as determined by the City, then within one hundred eighty (180) days after

written notice by the City, Grantee shall, at its own expense protect, alter, remove or relocate

facilities, as directed by the City Manager or Director of Development and Permits or

designee. If Grantee fails to so protect, alter, remove or relocate equipment within such

period, the City may break through, remove, alter or relocate the facilities of Grantee without

any liability to City, and Grantee shall pay to the City the costs incurred in connection with

such breaking through, removal, alteration or relocation. Grantee shall also reimburse the

City for or bear any additional cost actually incurred by the City as a result of Grantee's

failure to comply with the City's request to protect, alter or remove facilities under this

City Attorney's Office Ordinance. The City may collect such costs, and any reasonable expenses and attorney fees City of Chesapeake Municipal Center Page 20 of 49 306 Cedar Road Venion 11-05-2018 Chesapeake, Virginia 23322 (757) 382-6586 Fax: (757) 382-8749

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incurred in collecting such costs, as debts owed to the City, by bringing action in any court of

competent jurisdiction or exercising the City's rights to draw on bonds or letters of credit, or

in any other lawful manner, individually or in combination.

(f) The City retains the right and privilege to cut or move any Telecommunication facilities

located within the public ways or other areas of the City as the City may detennine to be

necessary, appropriate or useful in response to any life-threatening emergency. The City will

endeavor to notify Grantee of such emergencies which may impact its Telecommunication

facilities as soon thereafter as is reasonably feasible. Nothing herein shall create any duties or

: obligations on the City to notify Grantee in advance of taking such actions nor shall the City.

its officers, agents, employees, or volunteers in any way be liable for any failure to notify

Grantee.

(g) The facilities of Grantee shall be located so as not to interfere with the public safety or, to

the extent possible, with the convenience of persons using the public streets or rights-of-way.

Grantee shall construct, maintain and locate its Telecommunication facilities so as not to

materially and adversely interfere with the construction, location and maintenance of sewer,

1 water, drainage, electrical, signal and facilities of the City.

(h) The City shall have the right to specifically designate the location of the facilities of

Grantee with reference to sewer and water mains, drainage facilities, signal poles and lines

and similar services, other facilities, such as public telephone utilities, public electric utilities,

cable television facilities, and railway, communication and power lines, in such a manner as

the City detennines necessary to protect the public safety, health and welfare and public and

private property. Failure by the City to designate the location of Grantee's facilities shall not Pagell of49

Venlon 11-05-2018

relieve Grantee of its responsibilities in matters of public safety, as provided in this

Ordinance.

(i) Except in the cases of emergencies, Grantee shall not move, alter, change or extend any of

its telecommunications system in any public street or public right-ofMway unless (i) prior

written notice of its intention to do so is given to the City Manager and the City Manager

authorizes such action in writing, or (ii) appropriate and required pennits are obtained by

Grantee. The City Manager shall use his best efforts to either approve or deny Grantee•s

request to relocate it facilities within thirty (30) days of receipt of Grantee's request. Such

permission shall be conditioned upon compliance with the tenns and conditions of this

Ordinance, with such other tenns and conditions as will preserve, protect and promote the

safety of the public using the public ways, and as will prevent undue interference with or

obstruction of the use of the public ways by the public, the City or by any other public utility,

public service corporation or cable operator for their respective purposes and functions. Such

work by Grantee shall also be coordinated with the City's annual paving program through the

Office of the City Engineer. Notwithstanding the foregoing or anything in this Ordinance to

the contrary, alterations or changes to Grantee' s facilities shall not be subject to City notice or

approval requirements to the extent that (i) such alterations or changes involve only

substitution of internal components, and do not result in any change to the external

appearance, dimensions, or weight of the facilities or (ii) such alterations or changes involve

replacement of a facility with a facility that is the same, or smaller in weight and dimensions.

G) Grantee shall not open, disturb or obstruct, at any time, any more of the public streets or

City Attorney's Office · public rights-ofMway than is reasonably necessary to enable it to proceed in laying or repairing City of Chesapeake Municipal Center Page ll of 49 306CedarRoad Venioo 11·05·2018 Chesapeake, Virginia 23322 (757) 382·6586 Fax: (757) 382-8749

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its Telecommunication facilities. Grantee shall not pennit any public street or public right-of-

way so opened, disturbed or obstructed by it to remain open, disturbed or obstructed for a

longer period of time than shall be reasonably necessary as determined by the City. In all

c~es where any public street or public right-of-way is excavated, disturbed or obstructed by

Grantee, Grantee shall take all precautions necessary for the protection of the public and shall

maintain adequate warning signs, barricades, signals and other devices necessary or proper to

adequately give notice, protection and warning to the public of the existence of all actual or

probable conditions present.

(k) Neither Grantee, nor any person acting on Grantee 's behalf, shall take any action or

pennit any action to be done which may impair or damage any City property, including, but

not limited to, any public street, public right-of-way or other property located in, on or

adjacent thereto.

(1) In the event of an unexpected repair or emergency, Grantee may commence such repair

and emergency response work as required under the circumstances, provided Grantee shall

notify the City as promptly as possible, before such repair or emergency work is started or as

soon thereafter as possible if advance notice is not practicable.

' (m) Grantee shall maintain itS facilities in good and safe condition and in a manner that

complies with all applicable federal, state and local requirements, laws, ordinances, and

, regulations.

Pagel3 of49 Venioa ll-05-2018

(n) Grantee shall at all times employ a high standard of care and shall install and maintain

and use approved methods and devices for preventing failure or accidents which are likely to

cause damages, injuries or nuisances to the public.

( o) Grantee shall obtain all required penn its from the City and any other governmental entity

having jurisdiction prior to commencing work or any nature and shall comply with all terms

and conditions of any such permit. Grantee shall furnish detailed plans of the work and other

required information, and shall pay all required fees prior to issuance of a pennit in

accordance with the rates in effect at the time of payment. Grantee shall comply with all

applicable ordinances and permitting requirements. The City shall issue all permits in

accordance with applicable law.

(p) A single permit may be issued for multiple excavations or pole installations, or pole

attachments or Telecommunication Facility installation to be made in public streets and

rights-of way; provided, however, any applicable fees established by the City shall apply to

each such excavation, pole installations, or pole attachments or Wireless Facility installation

unless otherwise provided by ordinance. Exceptions to the requirement for a written permit

may be allowed in cases of emergencies involving public safety. In the case of emergency

excavations or pole related repairs or Telecommunication Facility repairs made in a pu~lic

street or public right-of-way without a permit, Grantee shall make a report of each such

excavation pole related repair or Wireless Facility repair to the City within two (2) working

days and pay the applicable fee. Any pennit application and inspection related to repair of

excavations or pole related repairs or Wireless Facility installations shall be promptly acted

City Attorney's OffiCe upon by the City so as not to unreasonably delay Grantee in efficiently discharging its public City of Chesapeake Municipal Center Page 24 of 49 306 Cedar Road Version 11-05-2018 Chesapeake, Wginia 23322 (757) 382-6586 Fax: (757) 382-8749

City Attorney's Office City of Chesapeake Municipal Center 306CedarRoad Chesapeake, Vrginia 23322 (757) 382-6586 Fax: (757) 382·8749

service obligation and in any event shall be granted or denied within sixty (60) days from

submission and, if denied, accompanied by a written explanation of the reasons the penn it

was denied and the actions required to cure the denial.

(q) (l) Promptly after installation, repair, removal, relocation, construction, maintenance or

extension of the Telecommunication facilities including fiber optic or other cable and related

facilities or any portion thereof and/or any pavement cut by Grantee in any public streets or

public rights-of-way or public way of the City, the incidental trenches or excavations, if any,

shall be refilled by Grantee in a manner acceptable to the City Manager. Grantee shall be

responsible for damage to City street pavements, existing utilities, curbs, gutters and

sidewalks due to Grantee's installation, repair, removal, relocation, construction, maintenance

or extension of its Telecommunication facilities in the public streets, public rights-of-way

pavement, existing utilities, and sidewalks, curbs, gutters or any other portions of public ways

damaged, disturbed or destroyed by such work shall be promptly restored and replaced to as

good or better condition as that prevailing prior to such installation, repair or extension by

Grantee at its own expense; however, where it is necessary, and if authorized by the City, in

order to achieve the fonner conditions, Grantee shall use materials whose type, specification

and quantities exceed or are different from those used in the installation, then Grantee at its

own expense shall provide such different materials. Where a cut or disturbance is made in a

section of sidewalk or paving, rather than replacing only the area actually cut, Grantee shall

replace the full width of the existing sidewalk or appropriate sections of paving as detennined

by the Director of Development and Permits or designee and the full length of the section or

sections cut. a section being defined as that area marked by expansion joints or scoring or as

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City Attorney's Office City of Chesapeake Municipal Center 306 Cedar Road Chesapeake, Vwginia 23322 (757) 382-6586 Fax: (757) 382-8749

determined by the Director of Development and Permits or designee. Grantee shall maintain,

repair and keep in good condition for a period of one ( l) year following such disturbance all

portions of public ways disturbed by Grantee, provided such maintenance and repair shall be

necessary because of defective workmanship or materials supplied by Grantee. Upon failure

of Grantee to repair, replace and restore said damaged property, in a manner as may be

reasonably specified by the City and to the reasonable satisfaction of the City, after thirty (30)

days' notice in writing shall have been given by the City, the City may cause such necessary

repairs to be made and may collect the costs incurred from Grantee, including but not limited

to, exercising the City's rights to draw on bonds or letters of credit. The City may collect

such costs, and any expenses and attorney fees incurred in collecting such costs, as debts

owed to the City, by bringing action in any court of competent jurisdiction or in any manner

allowed by law.

(2) All trees, landscaping and grounds removed, damaged or disturbed as a result of the

construction, installation maintenance, repair or replacement of Telecommunication facilities

shall be replaced or restored, as nearly as may be practicable, to the condition existing prior to

perfonnance of work. All restoration work within the public ways or other areas shall be

done in accordance with landscape plans approved by the City, such approval not to be

unreasonably withheld, conditioned or delayed.

(r) (I) Grantee shall promptly remove or correct any obstruction, damage, or defect in any

public street or public right-of-way caused by Grantee in the installation, operation,

maintenance or extension of Grantee •s telecommunications system. Any such obstruction,

damage, or defect whi~h is not promptly removed, repaired or corrected by Grantee after

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proper notice to do so, given by the City to Grantee, may be removed or corrected by the City,

and the cost thereof shall be charged against Grantee and payable on demand. Any expense,

cost, or damages incurred for repair, relocation, or replacement to City water, sanitary sewer,

stonn sewer, storm drainage, telecommunication facilities or other property resulting from

construction or maintenance of Grantee telecommunications system shall be borne by Grantee

and any and all expense and cost incurred in coMection therewith by the City shall be fully

reimbursed by Grantee to the City.

(2) If weather or other conditions do not permit the complete restoration required by this

Section, Grantee shall temporarily restore the affected property. Such temporary restoration

shall be at Grantee's sole expense and Grantee shall promptly undertake and complete the

required permanent restoration when the weather or other conditions no longer prevent such

pennanent restoration.

(3) Grantee or other agent or person acting on its behalf shall use suitable bani cades,

flags, flaggers, lights, flares and other measures as required for the safety of all members of

the general public and to prevent injury or damage to any person, vehicle or property by

reason of such work in or affecting such ways or property and shall comply with all federal,

state, and local laws and regulations, including, but not limited to, the flagging requirements

of the Virginia Department of Transportation.

(s) Except in the case of the City's gross negligence or intentional or willful misconduct, the

City, its officers, agents, or employees, shall not be liable for any damage to or loss of any of

Grantee's Telecommunication facilities within the public ways or any other areas of the City

as a result of or in connection with any public works, public improvements, construction, Pagel? of49

Venlon 11-0S-1018

excavation, grading, filling, or work or activity or lack of any activity of any kind by or on

behalf of the City.

(t) Grantee shall cooperate with the City in coordinating its construction activities as follows:

(1) Grantee shall provide the City with a schedule of its proposed construction activities

prior to commencing any construction;

(2) Upon request, Grantee shall meet with the City and other users of the public ways to

coordinate construction in the public ways; and

(3) All construction locations, activities and schedules shall be coordinated, as directed by

the Director of Development and Pennits or designee, to minimize public inconvenience,

disruption or damages. Grantee shall submit a written construction schedule to the Director of

' Development and Pennits or designee at least ten (1 0) working days before commencing any

work in or about the public streets or public rights-of-way. Grantee shall further notify the

Director of Development and Pennits or designee not less than five (5) working days in

advance of such excavation or other work and shall comply with the provisions of the

Virginia Underground Utility Damage Prevention Act, Virginia Code Section 56-265.14, el

seq., if applicable.

ARTICLE IX.

Payment of Fees. The Grantee shall pay to the City all amounts (fees, costs, expenses,

compensation, and taxes) allowed by the Chesapeake City Code, Chesapeake Zoning

Ordinance and the Code of Virginia, 1950, as amended, including but not limited to such fees

City Attorney's Office allowed by Virginia Code § 15.2-2316.4, § 15.2-2316.4:1 and §56-484.29. City of Chesapeake

Pagel8of49 Municipal Center 306 Cedar Road Venion 11-05-1018 Chesapeake, Vilginia 23322 (757) 382-6586 Fax: (757) 382-8749 i

City Attorney's Office City of Chesapeake Municipal Center 306 Cedar Road Chesapeake, Virginia 23322 (757) 382-6586 Fax: (757) 382·8749

ARTICLE X.

Mapping. (a) Grantee shall maintain an accurate map of its Telecommunication facilities.

Grantee shall provide the City with "as built" drawings and an accurate map or maps showing

the location of its facilities, including pole lines and conduit lines and any other facilities

requested by the City, to include a digitized map(s) in both printed and electronic fonn

. readable by the current version of Auto CAD certifying the location of all Telecommunication

facilities within the City. The Grantee shall provide the City with updated maps on an annual

basis.

(b) If any of the requested infonnation of Grantee in this Ordinance is considered

proprietary, confidential or a trade secret, Grantee will notify the City of this opinion and the

City will keep such infonnation confidential to the extent permitted by the Virginia Freedom

oflnfonnation Act (Virginia Code Sections 2.2-3700 et seq.) or other successor statute or law,

as amended from time to time. Grantee will submit an existing Facilities Map showing the

locations of the Wireless Facilities in public streets or public right of way as a condition

' precedent to the City's approval of this Ordinance. As for new installations of Wireless

Facilities, after the effective date of this franchise, Grantee shall submit the proposed

Mapping of its plans for new construction to the City prior to any construction. As-built

drawings of any new construction of facilities shall be furnished to the City within sixty (60)

days of completion of such construction. All as-built maps and drawings shall be drawn to

scale and reference to a physical City benchmark to the extent the physical benchmark is in

reasonable proximity to Grantee new installation. All mapping shall be provided in a fonnat

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City Attorney's Office City of Chesapeake Municipal Center 306 Cedar Road Chesapeake, Vrg1nia 23322 (757) 382·6586 Fax: (757) 382·8749

compatible to the City's present and future mapping systems. Alternatively, Grantee wilJ pay

for the cost of making the mapping compatible.

(c) Prior to its installation of any facilities in the public streets or public rights-of-way and

after Grantee provides the City with its proposed plans for the facilities, the City may, in its

discretion, designate certain locations to be excluded from use by Grantee for its

Telecommunication facilities, including, but not limited to, ornamental or similar specially

designed streets lights or other facilities or locations which, in the reasonable judgment of the

Director of Development and Permits or designee, do not have electrical service adequate for

or appropriate for Grantee's facilities or cannot safely bear the weight or wind loading

thereof, or any other facility or location that in the reasonable judgment of the Director of

Development and Permits or designee, is incompatible with the proposed facilities or would

be rendered unsafe or unstable by the installation. The Director of Development and Permits

or designee may further exclude certain other facilities that have been designated or planned

for other use or are not otherwise proprietary, legal or subject to other limitations or

restrictions as may be reasonably determined by the City. In the event such exclusions

conflict with reasonable requirements of Grantee, the City will cooperate in good faith with

Grantee to attempt to find suitable alternatives, if available, provided that the City shall not be

required to incur financial costs nor require the City to acquire new locations for Grantee.

Grantee shall, prior to any excavation or installation within the public streets or public rights-

of-way, provide sufficient notification and joint installation opportunity on a shared cost basis

to potential users of the public streets or public rights-of-way as may be provided for by a

separate City policy. However, any such joint installer and/or potential users shall be subject

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to the requirements of obtaining a separate franchise agreement as determined by the City.

Such notification and adopted policies shall be designed to maximize co .. location of providers

to minimize the disturbance to the public streets or public rights-of-way and maximize its

useable capacity.

ARTICLE XI.

lnsuranee Requirements. At all times during the term of this ordinance and any renewal

period, Grantee shall, at its expense, maintain the following insurance policies. Any required

insurance shall be in a form and with an insurance company eligible to do business in the

Commonwealth of Virginia and have a rating of no less than "A,. by A.M. Best Co.

(a) Commercial General Liability. Commercial General Liability insurance including

contractual liability coverage on an occunence basis insuring against claims, loss, cost,

damage, expense or liability from loss of life or damage or injury to persons or property

arising out of any of the work or activity under or by virtue of this Ordinance. The limits of

liability for such coverage shall be Two Million Dollars ($2,000,000) combined single limit

for any one occurrence and in the aggregate. However, the parties acknowledge that Grantee

may meet the policy limit in this section by combination of Grantee's General Commercial

Liability Policy and Grantee's Umbrella or Excess Liability Policy.

(b) Contractual Liability. Broad form Contractual Liability insurance, including the

indemnification obligations of Grantee set forth in this Ordinance.

(c) Workers' Compensation. Workers' Compensation insurance covering Grantee's

statutory obligation under the laws of the Conunonwealth ofVirginia and Employee's

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City Attorney's Office City of Chesapeake Municipal Center 306 Cedar Road Chesapeake, Virginia 23322 (757) 382-6586 Fax: (757) 382-8749

Liability insurance shall have a minimum limit of a $1,000,000 in coverage for all its

employees engaged in work under this Ordinance.

(d) Automobile Liability. Automobile Liability insurance having limits of liability of One

Million Dollars ($1,000,000) combined single limit per occurrence applicable to owned or

. non-owned vehicles used in the perfonnance of any work under this Ordinance.

, (e) Pollution Liability Insurance. Grantee shall maintain during the life of this Ordinance i

1

Pollution Liability Insurance in the amount of One Million Dollars ($1,000,000) for each

occurrence. Coverage shall be provided for bodily injwy and property damage resulting from

pollutants which are discharged suddenly and accidentally. Such insurance shall also provide

coverage for cleanup costs.

(f) Umbrella Excess Coverage. The insurance coverages and amounts set forth in this

Section may be met by an umbrella excess liability policy following the fonn of the

underlying primary coverage in an amount of Five Million Dollars (SS,OOO,OOO).Grantee may

use any combination of primary and excess to meet required total limits.

(g) Grantee shall, prior to commencing construction pursuant to this Ordinance or within

ten (I 0) days after the granting of the franchise contemplated by this Ordinance, whichever is

sooner, shall furnish the City a memorandum certificate or certificates of insurance, showing

the type, amount, effective dates and date of expiration of the policies, and thereafter prior to

the expiration of any such policy. Such certificate or certificates and evidence of insurance

shall include the City, its officers, agents, and employees as additional insureds. In addition

to being a named additional insured on the certificate of insurance, evidence of insurance will

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require the insurance carrier(s) for Commercial General Liability and Umbrella Excess

Coverage to provide written endorsements that the City is a named additional insured.

Grantee shall obtain a written obligation on the part of each insurance company to notifY

Grantee at least thirty (30) days before cancellation or a material change of any such

insurance. Upon receipt of such notice from Grantee's insurance company. Grantee will

immediately notify the City of Chesapeake on any of the required coverages that are not

replaced. All such insurance shall be subject to the review and approval of the City's Risk

Manager for compliance with the stated requirements.

(h) Maintenance. The liability insurance policies required herein shall be maintained by

the Grantee throughout the Tenn and such other period of time during which the Grantee

operates or is engaged in the removal of Equipment. Each such certificate of liability

insurance shall contain the following endorsement: "It is hereby understood and agreed that

this policy may not be canceled nor the intention not to renew be stated until ninety (90) days

after receipt by the City, by registered mail, of a written notice of such intent to cancel or not

to renew." Within sixty (60) days after receipt by the City of said notice, and in no event later

than thirty (30) days prior to said cancellation, the Grantee shall obtain and furnish to the City

, replacement certificates ofinsurance in a fonn reasonably acceptable to the City.

(i) Increased Insurance Coverage. In the event of any changed circumstances following

the Effective Date, the City, may a1ter the minimum face amount of the liability insurance

policy or policies required herein.

(j) Notwithstanding the forgoing, Grantee may, in its sole discretion, self-insure any of

the required insurance under the same terms as required by this Ordinance. However, if Page33 of49

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City Attorney's Office City of Chesapeake Municipal Center 306 Cedar Road Chesapeake, V~nia 23322 (757) 382-6586 Fax: (757) 382-8749 ,

Grantee detennines to do so, the City (Grantor) reserves the right to request and review the

Grantee's most cunent financial reports that indicate the Grantee's retention funding and, the

City will require and review certificates of insurance that identifies insurance limits and

includes all applicable reinsurers. In the event Grantee elects to self-insure its obligation

under this Ordinance to include Grantor as an additional insured, the following conditions

apply: (i) Grantor shall promptly and no later than one hundred and eighty (180) days after

notice thereof provide Grantee with written notice of any claim, demand, lawsuit, or the like

for which it seeks coverage pursuant to this Section and provide Grantee with copies of any

demands, notices, summonses, or legal papers received in connection with such claim,

demand, lawsuit, or the like; (ii) Grantor shall not settle any such claim, demand, lawsuit, or

' the like without the prior written consent of Grantee; and (iii) Grantor shall fully cooperate

with Grantee in the defense of the claim, demand, lawsuit, or the like.

ARTICLE XII.

Surety.

(a) Prior to the effective date of this Ordinance, and prior to the commencement of any

construction by Grantee, Grantee shaU provide a bond, in a fonn satisfactory to the City

Attorney, and by a surety authorized to do business in the Commonwealth of Virginia, in the

amount of One Hundred Thousand Dollars ($1 00,000) securing its faithful performance of the

terms and conditions of this Ordinance. Grantee shall maintain such bond for the duration of

this Franchise, unless otherwise agreed to in writing by the City.

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(b) The bond shall guarantee Grantee's faithful performance of the terms and conditions of

this Ordinance. including, but not limited to, (I) the timely completion of construction; (2)

compliance with applicable plans, pennits, technical codes and standards; (3) proper location

of the facilities as specified by the City; (4) restoration of the public ways and other property

affected by the construction as required by this Ordinances; (S) the submission of "as-built"

drawings after completion of the work as required by this Ordinance; (6) timely payment and

, satisfaction of all claims, demands or liens for labor, material or services provided in

coMection with the work; and (7) the payment by Grantee of all lawful liens, taxes, damages,

claims, costs or expenses which the City has been compelled to pay or has incurred by reason

of any act or default of Grantee under this Ordinance and all other payments due the City

from Grantee pursuant to this Ordinance. Provision shall be made to pennit the City to make

claims against the bond for any of the foregoing.

(c) Whenever the City detennines that Grantee has violated one (I) or more terms,

conditions or provisions of this Ordinance for which relief is available against the bond, a

written notice shall be given to Grantee. The written notice shall describe in reasonable detail

the violation so as to afford Grantee an opportunity to remedy the violation. Grantee shall

have thirty (30) days subsequent to receipt of the notice in which to correct the violation

before the City may make demand upon the bond.

(d) Such bond shall be in addition to any performance or defect bond or other surety

required by the City in connection with the issuance of any construction permit issued

pursuant to Chapter 33 of the City Code or any successor ordinance.

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(e) Each Perfonnance Bond shall contain the following endorsement: "It is hereby

understood and agreed that this bond/letter of credit may not be canceled or revoked ...

ARTICLE XIII •

. Transfer of ownenbip. Notwithstanding any provision of this Ordinance, Grantee may not

assign, transfer, lease, or sell any of the rights and privileges granted hereunder without the

' approval of the City Manager. Any assigrunent, transfer, lease or sale of any rights and

privileges granted hereunder to any of Grantee's Affiliates or any party providing financing to

Grantee, shall not be effective until the assignee, transferee, Jessee, or the purchaser, including

an Affiliate, has filed with the City a duly executed instrument reciting the fact of such

assigrunent, transfer, lease or sale and accepting the tenns of the Ordinance and agreeing to

perfonn all of the conditions thereof. The City and Grantee agree and acknowledge that,

notwithstanding anything in this Ordinance to the contrary, certain Telecommunication

Facilities installed by Grantee in the Rights-of-Way pursuant to this Ordinance may be owned

and/or operated by Grantee's third-party wireless carrier customers ("Carriers"). However,

such Telecommunication Facilities must be installed, maintained and/or repaired by Grantee

pursuant to this ordinance. Such Telecommunication Facilities shall be treated as Grantee's

Telecommunication Facilities for all purposes under this Ordinance provided that (i) Grantee

remains responsible and liable for all perfonnance obligations under this Ordinance with

respect to such Telecommunication Facilities; (ii) the City's sole point of contact regarding

such Telecommunication Facilities shall be Grantee; and (iii) Grantee shall have the right to

remove and relocate the Telecommunication Facilities.

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ARTICLE XIV.

Ll1biUty of City and Indemnifiatlon. The City, its officials, employees, agents, and

attorneys, shall not be responsible for any liability of the Grantee, any affiliated person or any

other person, arising out of or in connection with the installation, maintenance, upgrade,

repair or removal of facilities or the provision ofTelecommunications Services through the

facilities.

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

1 Grantee, any affiliated Person or any other Person for any special, incidental, consequential or

other damages as a result of the exercise of any right of the City pursuant to this Ordinance or

applicable law, including, without limitation, the rights of the City to approve or disapprove

the grant, tennination, amendment, renewal or transfer of the Franchise, or to otherwise

modify all of any part of this Ordinance or the Franchise.

Grantee agrees to indemnify, defend and hold hannless the City, its officers, employees and

agents from and against all claims, demands, losses, damages, liabilities, fines, and penalties,

and all costs and expenses incurred in connection therewith, including, without limitation,

reasonable attorney's fees and costs of defense (collectively, the losses), arising out of any

breach by Grantee of the terms and conditions of this Ordinance, except to the extent

proximately caused by the gross negligence or willful misconduct of the City, its officers,

employees and agents. In addition, Grantee shall protec~ indemnify, and hold harmless the

'

I City. its officers, agents, and employees, from any and all demands for fees, claims, suits,

actions, causes of action, or judgments based on the alleged infringement or violation of any

patent, invention, article, arrangement, or other apparatus that may be used in the performance Page37 of49

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of any work or activity arising out of the use of any telecommunication facilities or the

provision of telecommunication service, except to the extent proximately caused by the gross

negligence or willful misconduct of the City, its officers, employees or agents.

ARTICLE XIV.

Hazardous Substan~es. In its performance of this Ordinance, Grantee shall not transport,

dispose of or release any hazardous substance, material, or waste, and Grantee shall comply

with all federal, state, and local laws, rules, regulations, and ordinances controlling air, water,

noise, solid wastes, and other pollution, and relating to the storage, transport, release, or

disposal of hazardous material, substances or waste. Grantee shall indemnify and hold the

City, its officers, agents, employees and volunteers hannless from any and all costs, claims,

damages, causes of action, liabilities, fines or penalties, including reasonable attorney's fees,

resulting from Grantee's violation of this section or any applicable federal, state, or local

1 • envirorunentallaw or regulation, and agrees to reimburse City for all costs and expenses

incurred by the City in eliminating, remedying, or remediating such violations. Orantee also

agrees to reimburse the City and hold the City, its officers, agents, employees and volunteers

harmless from any and all costs, expenses, attorney's fees and any and all penalties or civil

judgments that are obtained against it as a result of Grantee's use or release of any hazardous

substance or waste onto the ground, or into the water or air from, near or upon the City,s

: · premises. For purposes of this Section, the following definitions shall apply:

"Hazardous Substances" means asbestos and any and all pollutants, dangerous substances,

toxic substances, hazardous wastes, hazardous materials and hazardous substances as

referenced or defined in, or pursuant to, any federal, state, local or other applicable Page38of49

Venlon 11-05-2018

environmental law, statute, ordinance, rule, order, regulation or standard in effect on the date

hereof including, without limitation, the Resource Conservation and Recovery Act (42 U.S.C

6901, et seq.), as amended, the Federal Insecticide, Fungicide and Rodenticide Act (7 U.S.C.

135, et seq.), as amended, the Comprehensive Environmental Response, Compensation and

Liability Act (42 U.S.C. 9601, et seq.), as amended, and the Toxic Substance Control Act (15

U.S.C. 2601, et seq.), as amended.

"Release" includes the placing, releasing, depositing, spilling, leaking, pumping, transmitting,

emitting, emptying, discharging, injecting, escaping, leaching, disposing or dumping of any

substance, whether accidental or intentional.

ARTICLE XVI.

General Provisions. (a) Authority. Grantee warrants and represents that it has obtained

all necessary and appropriate authority and approval from all applicable federal and state

agencies or authorities to provide all Telecommunication facilities and services it intends to

provide within the City. and upon request by the City will provide evidence of such authority.

(b) Other remedies. Nothing in this Ordinance shall be construed as waiving or limiting

any rights or remedies that the City or Grantee may have, at law or in equity, for enforcement

of this Ordinance.

(c) Severability. If any section, subsection, sentence, clause, phrase, or other portion of

this Ordinance, or its application to any person, is, for any reason, declared invalid, in whole

· or in part by any court or agency of competent jurisdiction, said decision shall not affect the

City Attorney's Office , ' validity of the remaining portions hereof. City of Chesapeake

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(d) Nonenforcement. Neither party shall be excused from complying with any of the

provisions of this Ordinance by any failure of the other party, upon any one or more

occasions, to insist upon strict performance of this Ordinance or to seek the other party's

· compliance with any one or more of such terms or conditions of this Ordinance.

(e) Conflicts of law. lfthere is a conflict between the provisions of this Ordinance and

any law, whether federal, state, or City, including all future laws and ordinances, the law and

conflicting Ordinance provision will, to the extent reasonably possible, be construed so as to

be consistent with each other and if such construction is not reasonably possible, the

conflicting provision of this Ordinance shall be deemed superseded by such law and have no

effect, notwithstanding the contract clause of the United Stated Constitution.

(f) Change of law. Notwithstanding anything in this Ordinance, if any federal, state, or

local laws or regulations (including, but not limited to,.those issued by the Federal

Communications Commission or its successor agency) and any binding judicial

interp~tations thereof (collectively, "Laws") that govern any aspect of the rights or

obligations of the parties under this Ordinance shall change after the Effective Date and such

change (a) declares this Ordinance invalid, in whole or in part, or (b) requires the Grantee

either to (i) perform any act that is inconsistent with any provision of this Ordinance or (ii)

cease perfonning any act required by any provision of this Ordinance, including any

obligations with respect to compensation or other financial obligations pursuant to this

Ordinance, or (c) alters the City's jurisdiction or rights related to this Franchise or similar

franchises, then either the City or the Grantee shall promptly notify the other of such fact.

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Upon receipt of such notification, the parties, acting in good faith, shall detennine whether

such declaration or requirement has a material and adverse effect on this Ordinance. If the

parties, acting in good faith, detennine that such declaration or requirement does not have a

material and adverse effect on this Ordinance, then the Grantee shall comply with such

declaration or requirement. If the parties, acting in good faith, determine that such declaration

. . or requirement does have such an effect or that compliance with such declaration or II

requirement by the Grantee wou1d materially frustrate or impede the ability of the Grantee, to

carry out its obligations pursuant to, and the purposes of, this Ordinance, then the Grantee and

the City may enter into good faith negotiations to amend this Ordinance. Such materially

frustration or impediment of the ability of the Grantee shall not include the potential increase

in cost or expense to the Grantee, nor the choice of location, placement or other requirements

of Telecommunication Facilities. If the parties fail to produce an ordinance which is

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

accelerate the expiration of the Tenn so that the Tenn shall expire on a date detennined by the

City and Grantee not less than twelve (12) months after such detennination.

(g) Enhanced City Authority. To the extent that any statute, rule, regulation, ordinance or

any other law is enacted, adopted, repealed, amended, modified, changed or interpreted in any

way during the Tenn so as to enhance the City's or Grantee's ability to meet the

telecommunications related needs and interests of the citizens, the parties may, acting in good

faith, negotiate a modification to this Ordinance to reflect such enactment, adoption, repeal,

amendment, modification, change or interpretation, and the parties agree to comply with any

' such modifications arising out of negotiations or any regulations. If the parties fail to reach an

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ordinance, the Term may be accelerated so that the term shaJl end not less than twelve (12)

months after the failure to reach an ordinance.

(h) Controlling law and venue. By virtue of entering into this Ordinance, Grantee agrees

and submits itself to the Chesapeake Circuit Court in the City of Chesapeake, Virginia or in

the United States District Court for the Eastern District of Virginia, Norfolk Division, and

further agrees that this Ordinance is controlled by the laws of the Commonwealth of Virginia

or any applicable federal laws and that all claims, disputes and other matters shall be decided

only by such court according to the laws of the Commonwealth of Virginia or any applicable

federal laws or by any regulatory body with jurisdiction, including the Federal

Communications Commission.

(i) Captions. The section captions and headings in this Ordinance are for convenience

and reference purposes only and shall not affect in any way the meaning or interpretation of

this Ordinance.

0) Nondiscrimination. During the perfonnance of this Ordinance, Grantee agrees that it

~ will not discriminate against any employee or applicant for employment on the basis of race,

religion, color, sex, handicap or national origin. Grantee agrees to post in conspicuous places,

available to employees and applicants for employment, notices setting forth the provisions of

this nondiscrimination clause. Grantee, in all solicitations or advertisements for employees

placed by or on behalf of Grantee, will state that Grantee is an equal opportunity employer.

Notices, advertisements and solicitations placed in accordance with federal law, rule or

regulation shall be deemed sufficient for the purpose of meeting the requirements herein.

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(k) Entire Ordinance. This Ordinance, including all Appendices, embodies the entire

: understanding and ordinance of the City and the Grantee with respect to the subject matter I

hereof and merges and supersedes all prior representations, agreements and understandings,

whether oral or written, between the City and Grantee with respect to the subject matter

hereof, including, without limitation, all prior drafts of this Ordinance and any Appendix to

this Ordinance and any and all written or oral statements or representations by any official,

employee, agent, attorney, consultant or independent contractor of the City or the Grantee.

(1) Delays and Failures Beyond Control of Grantee. Notwithstanwng any other provision

of this Ordinance, the Grantee shall not be liable for delay in performance of, or failure to

perfonn, 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, fire, flood or other act of God, or sabotage, 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 perfonnance 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. The Grantee shall notify the City in writing of the

occurrence of an event covered by this Section within five (S) business days or a reasonable

time period under the circumstances of the date upon which the Grantee learns of its

occurrence.

City Attorney's Office (m) Notices. City of Chesapeake Municipal Center 306 Cedar Road Chesapeake, Virginia 23322

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City Attorney's Office City of Chesapeake Municipal Center 306 Cedar Road Chesapeake, Vi19inia 23322 (757) 382-6586 Fax: (757) 382-8749

(I) Notices given pursuant to this Ordinance shall be in writing and addressed as

foJlows:

To the City: City Attorney

City Attorney's Office

306 Cedar Road, 6u. Floor

Chesapeake, Virginia 23322

To [NAME OF COMPANY], Grantee:

[ADDRESS HERE]

Attn: [CONTACT INDIVIDUAL'S NAME]

[PHONE NUMBERS AND EMAIL ADDRESS HERE]

With an optional courtesy copy to:

[IF APPLICABLE]

(2) Either party may change the address at which it will receive notices by

providing written notice of the change to the other party.

(n) No Agency. The Grantee shall conduct the work to be performed pursuant to this

Ordinance as an independent contractor and not as an agent of the City.

(o) Survival. All representations and warranties contained in this Ordinance shall survive

the Tenn. The Grantee acknowledges that certain of the obligations to be performed under

this Ordinance are to be perfonned after the Franchise terminates or expires.

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(p) Delegation of City Rights. The City reserves the right to delegate andre-delegate, from

time to time, any of its rights or obligations under this Ordinance to any body, organization or

official. Upon such delegation or re-delegation, references to ''City" in this Ordinance shall

refer to the body, organization or official to whom such delegation or re-delegation has been

made.

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

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

revocation or re-delegation, no matter how often made, shall not be deemed an amendment to

this Ordinance or require any consent of the Grantee.

(q) Modifications. Except as otherwise provided in this Ordinance, (including any

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

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

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

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

ordinance, resolution or order by the City, as required by applicable law.

(r) Reservation of Rights. The City reserves the right to adopt or issue such lawful rules,

regulations, orders, or other directives governing the Grantee's use of the public streets as it

shall find necessary or appropriate in the exercise of its police power, and such other orders as

the City shall find necessary or appropriate pursuant to and in furtherance of the purposes of

this Ordinance, and the Grantee expressly agrees to comply with aU such lawful rules,

regulations, orders, or other directives. If any such exercise of right materially alters any of

the terms or conditions of this ordinance, the parties may, acting in good faith, negotiate such Page45of49

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change. No rule, regulation, order or other directive issued pursuant to this Section shall

constitute an amendment to this Ordinance.

(s) Reports. At the reasonable request of the City, the Grantee shall promptly submit to

the City such information, as maintained in the ordinary course of business, as the City may

request and as allowed by federal and state law regarding the Grantee's placement and

location of equipment in the public streets and payments and collections made by Grantee

pursuant to this Ordinance.

(t) Books and Records, Right of Inspection. Throughout the Term, the Grantee shall

maintain in the City, or make available at Grantee's location in the City or as mutually agreed

upon by the City and Grantee within fifteen (I 5) business days after receipt of written request,

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

days, complete and accurate books of account, docwnents and record~ or copies thereof, of

the business, ownership, and operations of the Grantee with respect to Grantee's installation,

construction, maintenance, upgrade, repair, relocation and removing of the facilities in the

Public streets that may be required under this Ordinance, including without limitation, books

of account and records, as maintained in the ordinary course of business, adequate to enable

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

compliance with each tenn and condition of this Ordinance. All such documents that pertain

to financial matters that may be the subject of an audit by the City shall be retained by the

Grantee for a minimum of three (3) years following tennination of this Ordinance. The City

and its designated representatives shall have the right to inspect, examine and audit, during

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normal business hours and upon sixty ( 60) days' notice to the Grantee, all such documents,

records and other information of the Grantee required to be maintained.

(u) Treatment of Proprietary Information. Access by the City to the documents, records

or other information covered by this Ordinance shall not be denied by the Grantee on grounds

that such documents, records or information are alleged by the Grantee to contain proprietary

information, provided that this requirement shall not be deemed to constitute a waiver of the

Grantee's right to assert that the proprietary information contained in such documents, records

or other information, should not be disclosed and to withhold such information upon the

agreement of the City. In order to determine the validity of such assertion and withholding by

the Grantee, the City agrees to review the alleged proprietary information at the Grantee's

premises, subject to the terms as reasonably determined by the parties, and, to limit access to

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

exercise of the City's rights under this Ordinance, as reasonably determined by the parties. If

the City Attorney concurs with the Grantee's assertion regarding the proprietary nature of

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

remove from the Grantee's premises the proprietary portion of any document or other tangible

thing that contains such proprietary information. If the City Attorney does not concur with

such assertion, then the Grantee shall promptly provide such documents, including the alleged

proprietary portion thereof, to the City, provided that the Grantee shall not be required to

provide the proprietary portion thereof if it promptly notifies the City of its intentions to

challenge the City Attorney's decision or during the pendency of any court challenge to such

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provision. The labeling of documents, records or other infonnation as proprietary shall be the

sole responsibility of the Grantee.

ADOPTED by the Council of the City of Chesapeake, Virginia this __ day of

_ _____ ..J 2018.

APPROVED:

Mayor ATTEST:

Clerk of the Council

APPROVED AS TO FORM:

Th undersigned hereby agrees to comply with all the terms, requirements and conditions of the above Franchise Ordinance.

Grantee

By: ___ _____________________ __

Name: -------------------------------

1 Its: ----------------------~~

Date: ______________________________ _

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State of ______ _

City/County of ______ ,. TO WIT;

The foregoing instrument was acknowledged before me this __ day of ____ __,

2018, by--------- -----------of Grantee. He/she

is personally known to me or has produced __________ as evidence of

identification.

Notary Public

My commission expires------My registration number: -------

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