Loading...
R05-067 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 26 27 28 29 30 31 32 33 RESOLUTION NO. R05-OCW A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF BOYNTON BEACH, FLORIDA, APPROVING AND AUTHORIZING THE APPROPRIATE CITY OFFICIALS TO EXECUTE AN AGREEMENT WITH PTLLC ACQUISITION CO., LLC, TO PROVIDE BROADBAND ACCESS TO THE CRA AREAS AND THE HEART OF BOYNTON AREA; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City of Boynton Beach Information Technology Department is actively seeking to implement Wi-Fi- services within the City, the initial phase of the project shall be conducted within the CRA corridors; and WHEREAS, the goal is to implement a turnkey solution for a pilot project within the ~RA and Heart of Boynton corridors; and WHEREAS, the City Commission of the City of Boynton Beach, upon :commendation of staff, deems it to be in the best interests of the citizens and residents of Ihe City of Boynton Beach, to enter into an agreement with PTLLC Acquisition Co., LLC, a ~ubsidiary of Progress Telecom, LLC to provide broadband access to the CRA areas and the Heart of Boynton area through a piggy-back with the City of Orlando. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF rile 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 ?TLLC Acquisition Co., LLC, a subsidiary of Progress Telecom, LLC to provide broadband access to the CRA areas and the Heart of Boynton area through a piggy-back with the City of ©rlando. Section 3. This Resolution shall become effective immediately upon passage. S:\CA\RESO~,greements\Progress Telecom (wi-fi).doc 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 24 25 PASSED AND ADOPTED this IQ day of April, 2005. ATTEST: CITY OF BOYNTON BEACH, FLORIDA ~Mayor Comm~sszOn ~.-- ~.. .,~(.~.~C ommis sioner Commissioner .5:\CA\RESO~Agreements\Progress Telecom (wi-fi).doc City Agreement ~,O ~'- O(o '7 This City Agreement (the "Agreement") dated as of ,~l-r'~ri ~ IQ, , 2005 ("Effective Date") between PTLLC Acquisition Co., LLC, a Delaw~!~e lir~ited liability company, with offices located at 100 Second Avenue South, Suite 400 South, St. Petersburg, FL 33701 (hereinafter called "Provider") and City of Boynton Beach, having offices located at 100 East Boynton Beach Blvd., Boynton Beach, FL 33425 (hereinafter called "Customer") shall remain in effect for a period of twelve (12) months beginning on the Effective Date (the "Term"). Provision of Services Provider will provide to Customer shared broadband access to the location(s) identified in Schedule A of this Agreement in exchange for Customer's payment of fees and compliance with the terms and conditions of this Agreement. Any orders for services that extend beyond the Term shall remain subject to the terms and conditions of this Agreement as if the Term had not expired. Customer will provide routers and other security devices for connecting locations. Provider will provide the bandwidth to the given location(s) as specified in Schedule A that Customer will use to connect to Customer provided equipment. The connection will be deemed complete when the Provider has delivered the link to Customer. Customer represents and warrants that it is a tax exempt municipality. Equipment and Installation for Service Provider shall supply adequate equipment to provide the services it has agreed to provide pursuant to this Agreement. All equipment supplied by Provider will at all times remain the property of Provider. The Customer may not sell, transfer, lease, encumber or assign all or part of the equipment to any third party. The Customer shall pay for the full cost of the repair or replacement of any lost, stolen, un-returned, damaged, sold, transferred, leased, encumbered or assigned equipment or part thereof, together with any costs incurred by Provider in obtaining or attempting to obtain possessions or replace any such equipment. On expiration or termination of this Agreement or any service provided pursuant to this Agreement, the Customer authorizes Provider to retrieve from the Customer's premises the equipment for appropriate disposition, with prior notice. During the term of this Agreement, for purposes of the placement and maintenance of Provider's communications equipment and cabling, and interconnecting such Provider equipment to its network to provide the services, (i) Customer grants Provider the right free of charge to occupy portions of Customer's facilities and real property, including, but not limited to, the right to place antennas and other equipment on Customer's facilities and real property, and (ii) Customer agrees to secure from third parties, on behalf of Provider, substantially equivalent access rights, if required for Provider to deliver Customer's service. Provider shall be given adequate power for its equipment without charge and the right to pass through third party traffic. Provider shall be permitted twenty-four (24) hours a day, seven (7) days a week access to the space where its equipment is located, subject to reasonable documented rules of Customer or the third party governing such access. Provider and Customer agree that as part of the Customer's rules regarding access that Provider shall give Customer reasonable written notice of its intent to access any Customer facilities identified in Exhibit "A". Customer shall provide Provider with written notice of any proposed modifications to any such rules thirty (30) days prior to any such modifications being implemented, which changes shall not be implemented unless Provider consents to the proposed modifications. Service Level Aqreement (SI_A) Municipality Agreement (rev/01-24-2005) Should Customer experience a material degradation of service, Customer shall advise Provider of the material service degradation at the time it occurs, and Provider shall have twenty-four (24) hours to address such service deficiency from the time of notification. A material degradation of service is an occurrence that significantly impairs the ability of Customer to transmit and/or receive data. Mean Time to Respond (MTTR) On a monthly basis, Provider's MTTR to notifications, if any, from Customer of any material degradation of service will be four (4) hours. Use of Material Customer assumes all risks and liabilities associated with material downloaded or uploaded using Provider's network, including, but not limited to, confidentiality limitations, content limitations (such as liability for libel, defamation, invasion of privacy, or a violation of indecency and/or obscenity restrictions), copyright restrictions, trademark restrictions, service mark restrictions, trade secrets, patent restrictions or any other intellectual property tangible or intangible rights associated with material. Use of Services Customer understands and agrees that this service may be utilized solely for lawful purposes and the use of this service in connection with or as an adjunct to any other product or service that violates any municipal, county, state, federal or foreign law or regulation is expressly prohibited. Customer agrees that its use of the services herein shall not infringe upon the use by other customers of Provider's network unless specified for emergency situations. Should Customer violate any provision of this Section, Provider, at its sole discretion, may only suspend the services after providing notice of such violation and providing the Customer with an opportunity to cure the violation. If Customer does not correct the violation, Provider may issue a default notice to Customer pursuant to the Section entitled "Default," in which case the provisions of that Section will apply to said violation. Fees Recurring and non-recurring fees shall be as set forth in Schedule A. All fees are due net thirty (30) from the invoice date and after that date are subject to a late payment charge of eighteen percent (18%) per annum calculated from the due date until the date of payment. Account Termination Customer may terminate this Agreement or any service provided pursuant to this Agreement prior to the expiration of its term by submitting a written notice to Provider no less than thirty (30) days prior to the requested date of termination of the Agreement or service. For any service(s) termination pursuant to this Section, Customer shall pay to Provider a termination fee equal to seventy five percent (75%) of the remaining monthly recurring fees due for the service during the first year of the service term and fifty percent (50%) of the remaining monthly recurring fees due for the service after the first year until the end of their service term. The termination fee along with any other unpaid fees then due, shall be paid within thirty (30) days of the termination notice. Any such payment(s) not made within this thirty (30) day period will be subject to a late payment charge of eighteen percent (18%) per annum calculated from the due date until the date of payment. Notwithstanding anything else to the contrary in this paragraph, for any multi- year order, if Customer does not obtain necessary budget and/or appropriations approval from the City Commission to continue the services, this Agreement may be terminated without any termination fee. Municipality Agreement (rev/01-24-2005) Indemnification Indemnification To the extent permitted by law, each Party shall indemnify, defend and hold harmless the other from and against any and all liabilities, claims, damages, losses, costs, expenses and iud.qments arising out of or in connection with bodily iniury (includin,q death) or damage to tangible property caused by the negligence or willful misconduct of the indemnifying Party, its employees, directors, officers, agents or invitees. LIMITATION OF LIABILITY/DISCLAIMER OF WARRANTIES Except as otherwise specifically set forth in this Agreement, neither Party shall be liable to the other Party for any direct or indirect, consequential, special, incidental, reliance or punitive damages of any kind or nature whatsoever (including, but not limited, to any lost profits, lost revenue, lost savings, cost of substitute equipment or services, or harm to business), regardless of the forseeability thereof, whether based upon statute, contract, tort, negligence, strict liability or otherwise. Each Party hereby releases the other Party, its subsidiaries and affiliates, and their respective officers, directors, managers, members, employees and agents from any such claim. The limitations set forth in this Section shall not limit Customer's indemnification obligations hereunder with respect to third party claims against Provider as set forth in the Indemnification Section above. Provider makes no oral or written warranties or representations, express or implied, in fact or in law, and all other warranties, whether express, implied or statutory, including, without limitation, warranties of merchantability or fitness for a particular purpose, are hereby excluded and disclaimed. Nothing contained in this Agreement shall constitute a waiver of Customer's sovereign immunity or the provisions of Section 768.28, Florida Statutes. Disclaimer Provider assumes no responsibility for the content contained on the Internet. Provider discloses and Customer acknowledges that there may be content on the Internet or otherwise available through the services provided by Provider, which may be offensive to some individuals, which may not be in compliance with local, state or federal laws, rules or regulations, including, but not limited to, pornographic or otherwise inappropriate sexually explicit or offensive content. Customer acknowledges that its use of Provider's services to access information, content or other services is at its own risk. Governinq Law and Venue The laws of the State of Florida shall govern the terms of this Agreement. Venue for any lawsuit filed to enforce any terms of this Agreement shall be filed in state court in Palm Beach County, Florida. Assi,qnment Customer may not assign this Agreement without Provider's consent, which consent shall not be unreasonably withheld. Default Municipality Agreement (rev/01-24-2005) If Customer or Provider fail to perform their obligations pursuant to this Agreement,, either party may, at its sole discretion, issue a default notice to the other party demanding the default condition to be cured. If the default condition is not remedied within the time period specified in the notice letter, which shall not be less than five (5) business days, The non-defaulting party may then, without the necessity of any further notice, discontinue performance and terminate this Agreement and pursue any other remedies available at law or in equity including, without limitation, damages, including, but not limited to, unpaid overdue fees plus interest and costs, and any applicable early termination fee as set forth in the Section entitled "Account Termination." Either party's failure to exercise any of its rights hereunder shall not constitute or be construed r as being a waiver of any past, present, or future right or remedy. Each Party at its own expense, shall keep in force and at all times maintain during the term of this Agreement: (a) Public Liability Insurance: Public Liability Insurance, issued by responsible insurance companies and in a form acceptable to the Customer, protecting and insuring against all the foregoing with coverage limits of not less than One Million Dollars ($1,000,000) for Bodily Injury and Property Damage. (b) Automobile Liability Insurance: Automobile Liability coverage shall be in the minimum amount of Three Hundred Thousand Dollars ($300,000) combined single limits for Bodily Injury and Property Damage. (c) Workers' Compensation Covera,qe: Full and complete Workers' Compensation Coverage, as required by State of Florida law, shall be provided. (d) Insurance Certificates: Each Party shall provide the other Party with Certificate(s) of Insurance on all the policies of insurance and renewals thereof in a form(s) acceptable to the Customer. Said Public Liability policy shall provide that the non-insuring Party be named as an additional insured. The non- insuring Party shall be notified in writing of any reduction, cancellation or substantial change of policy or policies at least thirty (30) days prior to the effective date of said action. All insurance policies shall be issued by responsible companies who are licensed and authorized to do business under the laws of the State of Florida. Force Majeure Neither Party shall be held liable for any delay or failure in performance of any part of this Agreement from any cause beyond its reasonable control and/or without its fault or negligence, including, without limitation, acts of God, acts of civil or military authority, government laws, rules or regulations, embargoes, epidemics, war, terrorist acts, riots, insurrections, fires, explosions, earthquakes, nuclear accidents, floods, cable or fiber cuts, strikes of Party or its affiliates, power blackouts, volcanic action, other major environmental disturbances, unusually severe weather conditions or hurricanes Confidentiality/Publicity This Agreement is subject to the terms and conditions of the Mutual Confidentiality Agreement entered into between the Parties contemporaneously herewith. Customer shall not make any public announcement or issue any press release regarding this Agreement without the prior written consent of Provider. Municipality Agreement (rev/01-24-2005) Rpr 08 O~ l~:5~p Kissenberths 407-830-~2~3 p.8 Entire Agreement This Agreement constitutes the entire Agreement between the Parties and no other representations or statements will be binding upon the Parties except as evidenced by a signed amendment to this Agreement. If any part of this Agreement is held to be invalid or unenforceable for any reason, the remaining terms and conditions of this Agreement shall remain in full force and effect. PTLLC Acquisition Co., LLC Date: ~- ~- 0 ~ City of By: Name: Date: A~est:  CLERK Approved O~'fice Provider and Customer may be referred to individually as "Party" or collectively as "Parties." NOTICE INFORMATION All wdtten notices required under this Agreement, except as specifically set forth in Appendices hereto, shall be sent to the following: To: PTLLC Acquisition Co., LLC 100 Second Avenue South, Suite 400S St. Petersburg, Florida 33701 Facsimile: (727) 471-5311 Attention: Contract Management To: Facsimile: Attention: the Municipality Agreement (rev/01-24-2005) City Agreement Schedule A SCOPE OF SERVICE: Location 1' Term months Location 2: Term months Location 3: Term months Internet Access at a specific address: Address 1: Address 2: City, State Postal Code: Monthly recurring charge: $ Non-recurring charge: $ Requested Access Capacity: Requested Delivery Date: Internet Access at a specific address: Address 1: Address 2: City, State Postal Code: Monthly recurring charge: $ Non-recurring charge: $ Requested Access Capacity: Requested Delivery Date: Internet Access at a specific address: Address 1: Address 2: City, State Postal Code: Monthly recurring charge: $ Non-recurring charge: $ Requested Access Capacity: Requested Delivery Date: WiFi Zone: Pilot Term: 6 months Termination process during Pilot Term: 6 Month Pilot Term: 38 months Desired WiFi Coverage Area: Martin Luther King Blvd and park, CRA and Marina area to the East of Park as well as Federal Highway to the West, Boat Park and camera located on Premise, Marina, Federal highway as accessed from tower at South Side of CRA (Federal and Se 2nd Avenue). Requested Aggregate Access Capacity: 3 MB Monthly recurring charge: $ 3,100 Non-recurring charge: $ 4,200 (non-refundable) Provider will deliver wireless 802.11 access for broadband internet access within the coverage area listed above. If requested in writing, Provider will also supply Customer with a map outlining the areas of coverage and optimum signal saturation. Associated WiFi Services Services - Provider will provide open an 802.11 coverage in the area outlined above. Where practical, the antennas will be located at street level. Excessive Use - If requested by Customer, Provider can limit usage by setting time usage restrictions on access. Municipality Agreement (rev/01-24-2005) Page 1 of 3 City Agreement Schedule A Registration - If requested by Customer, Provider will set up a registration system for all users utilizing the network. Surveys - Provider will provide the ability for Pilot Project users to participate in an opt-in survey, content to be provided by Customer. Provider will retain survey information and results for a period of 90 days following completion date of the Pilot Project. Technical Support Telephone Number - Provider will provide a designated technical support telephone number, which will be prominently placed on the initial sign-on page. Provider will be the sole and primary contact for customer service inquiries. Network User Instructions - Provider will provide network user instructions that Customer will be able to post on its website and use in promotional materials. Disclaimer - Provider will display Customer's disclaimer and acceptance indicator on the initial sign-on page. No advertising, commercial promotions, etc. - Unless expressly authorized by Customer, there will be no advertising, commercial promotions, etc. on the Internet access being paid for by Customer, with the exception of acknowledgement of Provider as the service provider ("Service provided by Provider"), contact information for service provider and the designated technical support telephone number provided by Provider. Provider will provide Customer the logo and phone number. Reporting Utilization Data - Provider will provide real time reports to Customer showing the number of users online. Provider will also provide to Customer any and all available audit logs of transactions related to the Pilot Project and will provide Customer with access to any and all other available information related to the Pilot Project that it may request. Such information will at a minimum include frequency of use, duration of use, time of day, sites visited, duration of each site visited and the kilobytes downloaded from each site. Provider will provide the information to Customer on a monthly basis (within 30 days of month end) on a CD/DVD medium or in electronic format. In addition, Provider will make good faith efforts to provide Customer with user data that may be requested periodically during the course of the Pilot Project. Data will be stored by Provider for one (1) year. Provider will assist Customer to create, measure and analyze consumer response to online and offline marketing activities. Online Monitoring of Utilization - Customer will have the capability to monitor online broadband utilization to determine how much of the available broadband is being utilized. All research, data and findings performed by Customer shall be the sole property of Customer. Marketing and Promotional Materials - Customer shall market the Pilot Project, including press releases, in a manner that will give acknowledgement to Provider as the service provider. All promotional materials, press releases or public statements issued by Provider that references Customer of City of Boynton Beach as a customer and/or the Pilot Project shall be subject to written approval by Customer prior to issuance or publication. Designated Contacts. For the services to be provided pursuant to this Addendum, Customer designates the following person as the primary contact for Provider: Contact Name: Contact Phone: Contact Cell: Contact e-mail: Municipality Agreement (rev/01-24-2005) Page 2 of 3 City Agreement Schedule A Use of Material: Use of Services: Provider will display a disclaimer and acceptance indicator on the initial sign-on page. Users will assume all risks associated with use of Provider's network. Users will be responsible for using the service for lawful purposes. Municipality Agreement (rev/01-24-2005) Page 3 of 3