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RESOLUTION NO. R0S- 0°o8
A RESOLUTION OF THE CITY COMMISSION OF THE
CITY OF BOYNTON BEACH, FLORIDA, APPROVING
AND AUTHORIZING THE APPROPRIATE CITY
OFFICIALS TO EXECUTE AN EXCLUSIVE
AGREEMENT WITH ACHIEVA TELECOM SERVICES,
INC., D/B/A TALK'S CHEAP FOR
INSTALLATION OF A PAY
OCEANFRONT PARK; AND
EFFECTIVE DATE.
THE
TELEPHONE AT
PROVIDING AN
WHEREAS, a public telephone must be available to the public in case of
emergency, but due to lack of use, BellSouth has removed its telephone; and
WHEREAS, the City Commission of the City of Boynton Beach, upon
recommendation of staff, deems it to be in the best interests of the citizens and residents of
the City of Boynton Beach, to enter into an agreement with Achieva Telecom Services, Inc.,
d/b/a Talk's Cheap for the installation of a pay telephone at Oceanfront Park.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF
THE CITY OF BOYNTON BEACH, FLORIDA, THAT:
Section 1. The foregoing "WHEREAS" clauses are true and correct and hereby
ratified and confirmed by the City Commission.
Section 2. The City Commission of the City of Boynton Beach, Florida does
hereby approve and authorize the appropriate City officials to enter into an agreement with
IAchieva Telecom Services, Inc., d/b/a Talk's Cheap for the installation of a pay telephone at
Oceanfront Park.
Section 3. This Resolution shall become effective immediately upon passage.
S:\CA\RESOXAgreements\Talk's Cheap.doc
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PASSED AND ADOPTED this I ~" day of March, 2005.
ATTEST:
CITY OF BOYNTON BEACH, FLORIDA
(_/..~6~ ' e May~r t.~~
~o~mi.!'~. ~ _-4
:S:\CA\RESOV~,greements\Talk's Cheap.doc
EXCLUSIVE AGREEMENT FOR PAY TELEPHONE SERVICE
This Pay Telephone Location Agreement is made this ox9 '~ day ofJm-,v~t,~,-~ ,20 o b,'~"by
and between Ci~. of Bo.ynton Beach with its principal offices located at 100 E. Boynton Beach
Blvd.~ ~ Bo.ynton Beach~ FL 33425, hereinafter referred to as "Owner," and Achieva Telecom
Services, Inc. d/b/a Talk's Cheap, hereinafter referred to as "TC," on the following terms and
conditions:
1. Owner desires pay telephone service at the locations listed in this Agreement and is willing to
devote space at the locations to TC and to provide reasonable compensation to TC in return for the
provision of such pay telephone service. TC is ready, willing, and able to provide pay telephone
service at such locations with the cooperation of Owner.
2. Owner hereby grants TC the exclusive right to install and operate pay telephones at the
locations listed herein and/or on the attached Schedule B. The following locations are subject to this
Agreement: Oceanfront Park. All installations shall occur at the locations mutually agreed upon
between TC and Owner as reflected above. Any changes from the locations mutually agreed to above
shall be subject to negotiations between the parties and shall be reflected in an Amendment to this
Agreement executed by the appropriate representatives of both parties.
3. This Agreement shall commence on the date of installation of TC's pay telephones and, subject
to annual budget appropriations by the Boynton Beach City Commission, shall run for an initial period
often (10) years. Owner may cancel this agreement at any time with 90 days advance notice. This
Agreement shall renew upon TC and Owner agreeing in writing to the terms and conditions of any
future renewal period.
4. In consideration of TC's installation and maintenance of its pay telephone equipment at request
of Owner, Owner agrees to pay TC an installation fee of $129.85 per pay telephone, payable at
the time this Agreement is signed, and a monthly fee of $ 49.95 per pay telephone, payable on a
quarterly basis, thirty (30) days in advance ,as billed by TC. Should owner fail to make payments
within thirty (30) days of the payment due date, TC shall have the right to disconnect all pay
telephones installed pursuant to this Agreement and to assess Owner for the costs of disconnection and
removal of said pay telephones. TC shall be responsible for payment of telephone line charges for all
lines servicing these pay telephones.
5. Owner understands that TC retains the exclusive right to select all carriers for all
telecommunications services associated with pay telephones installed pursuant to this Agreement and
to set the rates for all calls placed from such pay telephones. Owner further understands that TC
retains the right to all revenues, (including coinage, dial around compensation, and operator services
commissions, for example) if any, generated from usage of such pay telephones. During the term of
this Agreement or any renewal period, owner shall not grant the right to install, own, or operate pay
telephones at any of the locations described herein to any other company or person, including the local
exchange telephone company.
6. Owner agrees to notify TC promptly of any malfunction of the equipment or loss of pay
telephone service and shall allow TC access to Owner's place of business during normal business
hours for pay telephone maintenance, repair, collections, and other related functions. TC agrees to
promptly repair or replace any defective equipment.
7. Owner shall exercise due diligence in preventing damage, destructiom vandalism, or theft to
TC's equipment installed under this Agreement, but shall not be liable for such loss unless caused by
Owner's willful actions or gross negligence. TC reserves the right to remove its equipment without
advance notice and without liability to Owner in the event TC experiences excessive vandalism.
8. The location of the pay telephones and the space provided shall be such as to make the pay
telephones available for public use and the Owner shall take no action that prevents or adversely
affects the use of the pay telephones. Owner shall allow the display of signs and instructions affixed to
I Owner__ TC~/''
the equipment by TC and shall not allow any other company or person to affix other signs or
instructions on the equipment. TC retains the right to affix advertisements for itself on the equipment.
9. Owner represents and warrants that s/he is the owner of the locations set forth herein or is the
authorized representative of such premises owner and that s/he has full authority to enter into this
Agreement and to bind Owner. If Owner is a tenant, s/he represents and warrants that s/he has
obtained all necessary consents from the landlord and/or any other party with interest in the premises
with respect to the installation of pay telephones. Owner further warrants that s/he has not entered into
any other agreement with any other pay telephone provider for the provision of pay telephone service
at the locations set forth herein. Owner agrees to provide whatever documentation may be requested
by TC in furtherance of this Agreement, including, but not limited to authority to enter into this
Agreement, as well as any other pay telephone agreements or records of revenue regarding previous
pay telephone service.
10. In the event the Owner should sell, lease, or otherwise transfer any of the locations subject to
this Agreement, Owner agrees that any such sale, lease, or transfer shall be made subject to the terms
and conditions of this Agreement.
11. Owner and TC shall comply with all regulatory requirements relative to the provision of pay
telephone service under this Agreement, including, but not limited to the Americans With Disabilities
Act, the rules of the Florida Public Service Commission ("FPSC"), and the rules of the Federal
Communications Commission ("FCC"). However, nothing herein shall require TC to make
modifications to Owner's property in order to comply with such requirements. This Agreement shall
at all times remain subject to such changes or modifications as the FPSC or FCC may direct from time
to time, or which may be required by state or federal law. In the event that TC is required to make
changes to this Agreement as the result of such regulatory requirements, TC retains the right, upon
thirty (30) days notice to Owner, to change this Agreement, and Owner shall then have the right to
accept such changes or to terminate this Agreement prior to the effective date of such changes.
12. TC shall install all pay telephones and associated wiring and equipment in a professional
manner. Owner specifically authorizes TC to arrange for removal of any existing pay telephone
equipment. Upon removal or relocation of TC's equipment, reasonable efforts will be made bv TC to
restore the Owner's site to its condition at the time of installation, normal wear and tear b~ing the
exception. Any deficiencies noted by the Owner must be brought to TC's attention within thirty (30)
days of when the work was last completed. TC agrees to repair its equipment within 72 hours
following receipt of notice of malfunction by the Owner. If the reason for malfunction is the result of
dial tone failure, TC will report the outage to as soon as possible to the serving local exchange
provider. Dial tone malfunctions will not be part of the 72 hour restoration period.
13. All pay telephones, equipment, fixtures, and other supplies shall remain the property of TC.
TC shall have the right to enter the location to remove all of its property at such time as this Agreement
expires or terminates. Owner hereby gives TC the authority to contact the local exchange telephone
company as necessary for both installation and removal of pay telephones. Owner acknowledges that
all equipment installed by TC pursuant to this Agreement remains the property of TC.
14. Owner agrees not to use or allow others to use the phone lines or equipment in a manner not
contemplated by this Agreement.
15. All notices hereunder shall be given by certified mail, return receipt requested, to the addresses
specified in this Agreement for each party or as modified by any Amendments to this Agreement.
16. This Agreement shall be binding upon and inure to the benefit of Owner and TC and their
respective heirs, successors, and assigns. Owner or TC may not assign or transfer this Agreement
without the prior written consent of TC or owner, which shall not be unreasonably withheld. TC or
Owner shall have the right to assign this Agreement without the prior consent of TC or Owner.
17. Talk's Cheap shall indemnify and hold harmless the City, its elected officials~ officers and
employees from and against any and all claims, demands, damages, liabilities, or causes of action of
whatsoever kind or nature arising out of, or in connection with any negligent act or omissionj~r willful
2 Owner
malfeasance of Talk's Cheap, its agents, or employees, pertaining to its activities and obligations
pursuant to this Agreement.
18. To the extent authorized by the Constitution and laws of the State of Florida, the City shall
indemnify and hold harmless Talk's Cheap against any and all claims, demands, damages, liabilities, or
causes of action of whatsoever kind or nature arising out of, or in connection with any negligent act or
omission or willful malfeasance of the City, its agents, or employees, pertaining to its activities and
obligations pursuant to this Agreement.
19. Each party agrees to pay all claims, losses, liens, settlements, or judgments of any nature in
connection with any injury resulting from its performance or nonperformance of its obligations
pursuant to this Agreement, including but not limited to reasonable attorney's fees and costs, including
paralegal expenses, at both the trial and appellate levels. Both parties agree to defend all
actions brought pursuant to this provision; provided, however, that the City reserves the right to select
its own legal counsel to conduct any defense in any such proceeding and to direct the defense or
settlement of any such claim or suit. All costs and fees associated therewith shall be the responsibility
of the party found to have committed the negligent act or omission or willful malfeasance, in the event
such matter is settled at trial. Otherwise, costs and fees shall be as determined in the settlement
process. Each party agrees to notify the other party as soon as that party becomes aware of any claim
or action brought pursuant to this provision.
20. Neither party shall be liable in any way for delay, failure in performance, loss or damage due to
force majeure or other causes beyond its reasonable control.
21. The parties agree that in the event of any dispute concerning this Agreement. they will first
attempt in good faith to resolve such dispute on an informal basis.
22. This Agreement constitutes the entire Agreement between the parties and supercedes all prior
offers, negotiations, and understandings and can only be changed by a written Amendment signed by
the authorized representatives of both parties. This Agreement is not binding on TC until signed by
one of its duly authorized officers. Any prior understandings between the parties are hereby merged
into and superseded by this Agreement.
23. This Agreement shall be governed by the laws of the State of Florida and the United States and
venue shall lie in Palm Beach County, Florida.
24. The addresses of the parties for purposes of any notices under this Agreement shall be:
3 Owner
TC:
Achieva Telecom Services, Inc., d/b/a Talk's Cheap
Public Communications Administrator
5500 Military Trail, Ste 22-336
Jupiter, FL 33458
Phone (800) 715-2646 Fax (561) 744-2210
For Owner:
Name: City of Boynton Beach
Contact Person:
Address: 100 E. Boynton Beach Blvd,
Boynton Beach, FL 33425
Phone: 561-742-6000 Fax:
Email:
This Agreement is hereby agreed upon and accepted by both TC and the Owner.
Clerk
Date
(Achie~~
Peter C. Fedor
Name (Printed or typed)
City:
Cit~ of Boynton Beach
f~lCyor Jerl/y Taylor
;ate
President
Title
Date
4 Owner
SCHEDULE "B" TO
EXCLUSIVE AGREEMENT FOR PAY TELEPHONE SERVICE
City of Boynton Beach
Installation Requirements:
Description:
Install one pay telephone and enclosure at Oceanview Park, 6415 N. Ocean Blvd,
Ocean Ridge, FL 33435
Dmarc location: I Equipment room in office bldg
Phone to be installed in former location on rest room wall.
Standard installation includes pay phone & booth attached to existing wiring that terminates at Dmarc.
Standard Installation 1st phone ~$129.95 ] $129.95
Additional phones at the same location ~$99.95 ea
Additional Installation Requirements:
Wire Installation
Booth / Pedestal
fl. hrs $
type $
$
$
$
$129.95
Total Installation Cost:
First Quaner Service
Total Due With Agreement
$149.85
$ 279.80
Owner