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Subject
Approval of a Rights-Of-Way Use Agreement between TCG Maryland and the Mayor and Council of Rockville and Authorization for the City Manager to execute the agreement.
Recommendation
Staff recommends that the Mayor and Council approve the Rights-Of-Way Use Agreement between TCG Maryland and the Mayor and Council of Rockville; accept the side letter for a one-time license fee; and, further, to authorize the City Manager to execute the agreement in a form acceptable to the City Attorney.
Discussion
TCG Maryland is a wholly-owned subsidiary of AT&T that wants to install communications (fiber-optic) cable and equipment in the City's rights-of way (ROW). TCG's initial project is to install its cable and equipment along part of Fortune Terrace and part of Seven Locks to provide telecommunications services to a customer. TCG has represented to staff that neither it nor AT&T will be using this cabling to provide cable television services, and this agreement does not allow for the plant to be used to provide cable television services. Staff has told TCG that if it intends to provide cable television services in the future, it must obtain a cable television franchise from the City, and TCG has said it understands this.
Companies such as TCG that want to use the City's ROW must first enter into an agreement with the City that sets the terms and conditions for installing and maintaining the infrastructure. TCG has agreed to the City's standard ROW Use Agreement with a few modifications, among them, one providing more specificity on the City's insurance requirements and another clarifying the City's bond requirements.
The City's standard ROW Use Agreement is in the form of a revocable license, the key terms and conditions of which are the following:
- Before working in the City's ROW, TCG will submit drawings, apply for and obtain necessary permits and pay the City's standard permit fees
- TCG will provide 48-hour advance notice before doing work that will interfere with or cause damage to the ROW
- TCG will join "Miss Utility" and comply with its requirements
- TCG will comply with all applicable laws, including the City's Road Code
- TCG will post notices along the ROW in advance of construction, including a telephone number for people to call with questions or complaints
- During construction, TCG will take precautions to protect people and property; after construction, TCG will restore the ROW to substantially preconstruction condition
- TCG will indemnify and hold harmless the City
- TCG will carry liability insurance naming the City as additional insured, with endorsements reflecting the same, and protecting the parties, in the amount of not less than two-million dollars
- TCG will furnish a performance bond
- TCG will provide to the Department of Public Works and keep updated 24-hour, 7-day per week emergency contact information
The terms and conditions of the agreement have been reviewed, discussed, and approved by the Director of Public Works and his staff, the Senior Assistant City Attorney, the Director of Information and Technology, and the Telecommunications and IT Operations Manager. The City's Risk Manager drafted revised insurance requirements language, which has been incorporated in the agreement.
TCG/AT&T has provided the City with a side letter agreeing to pay the City a one-time license fee of $7,500 upon execution of the Rights of Way Use Agreement.
Mayor and Council History
This is the first time this item has been brought before the Mayor and Council.
Fiscal Impact
TCG will pay the City's standard permit fees, which are cost-based and approved by the Mayor and Council. The fees are: for work in the street: $4.35/linear foot; for work in sidewalks and grassy areas: $2.20/linear foot; for overhead work: $0.06/linear foot. There is a $185 minimum fee. The amount of revenue from fees will not be known until TCG applies for its permits and provides detailed drawings. Since the City does not collect franchise fees from telecommunications companies for use of its ROW, and since there is no application fee to cover staff time for negotiation and preparation of the ROW agreement, the standard agreement contains a provision for a one-time payment as additional consideration. This payment is negotiable and is in the form of cash or complimentary services or cable on a one-time basis. TCG has offered to pay cash ($7,500), and for its own reasons, requested that this be covered in a side letter. Staff and legal counsel have agreed to this format.
Next Steps
TCG will apply for the necessary permits and submit supporting documents to the Department of Public Works.
Attachments
Department Head:
Mike Cannon, Chief Information Officer
Approved on: 12/21/2009
Assistant City Manager:
Jenny Kimball, Assistant City Manager
Approved on: 12/22/2009
City Manager:
Scott Ullery, City Manager
Approved on: 12/23/2009
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