R06-037
II
1 RESOLUTION NO. R06-037
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3 A RESOLUTION OF THE CITY COMMISSION OF THE
4 CITY OF BOYNTON BEACH, FLORIDA, APPROVING
5 AND AUTHORIZING THE APPROPRIATE CITY
6 OFFICIALS TO EXECUTE A FIRST AMENDMENT TO
7 AGREEMENT WITH PTLLC ACQUISITION CO., LLC,
8 TO PROVIDE BROADBAND ACCESS TO THE CRA
9 AREAS AND THE HEART OF BOYNTON AREA; AND
10 PROVIDING AN EFFECTIVE DATE.
11
12 WHEREAS, on April 19,2005, the City Commission approved and authorized the
13 City to enter into an Agreement with PTLLC Acquisition Co., LLC., (also know as Progress
14 Telecom) to implement Wi-Fi- services within the City, the initial phase of the project to be
15 conducted within the CRA corridors; and
16 WHEREAS, this First Amendment specifically outlines what services are expected
17 from Pregress Telecom in order to complete the project and clarifies the scope of the project
18 and capabilities of the technology; and
19 WHEREAS, the City Commission of the City of Boynton Beach, upon
20 recommendation of staff, deems it to be in4he best interests of the citizens and residents of
21 the City of Boynton Beach, to enter into a First Amendment to Agreement with PTLLC
22 Acquisition Co., LLC, a subsidiary of Progress Telecom, LLC to provide broadband access to
23 the CRA areas and the Heart of Boynton area through a piggy-back with the City of Orlando.
24 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF
25 THE CITY OF BOYNTON BEACH, FLORIDA, THAT:
26
Section 1.
The foregoing "WHEREAS" clauses are true and correct and hereby
27 ratified and confirmed by the City Commission.
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Section 2.
The City Commission of the City of Boynton Beach, Florida does
29 hereby approve and authorize the appropriate City officials to enter into a First Amendment
30 to City Agreement with PTLLC Acquisition Co., LLC, a subsidiary of Progress Telecom,
31 LLC to provide broadband access to the CRA areas and the Heart of Boynton area through a
32 piggy-back with the City of Orlando.
S:ICAIRESOlAgreementslProgress Telecom (wi-fi) 1 st Amendment.doc
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This Resolution shall become effective immediately upon passage.
Section 3.
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PASSED AND ADOPTED this1Jtl day of February, 2006.
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CITY OF BOYNTON BEACH, FLORIDA
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ATTEST:
(Corporate Seal)
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S:ICAIRESOlAgreementslProgress Telecom (wi-fi) 1 sl Amendmenl.doc
FIRST AMENDMENT TO
CITY AGREEMENT
1(0(",-0:'57
1:::1 ORIGINf'
THIS FIRST AMENDMENT TO CITY AGREEMENT (the "Amendment") is entered into this _day
of October, 2005 ("Effective Date") by and between the Citv of Bovnton Beach, with offices located at
100 East Bovnton Beach Blvd.. Bovnton Beach. FL 33425 (hereinafter the "Customer"), and PTLLC
Acauisition Co.. LLC, a Delaware limited liability company with offices located at 100 Second Avenue
South. Suite 400 South. St. Petersbura. FL 33701 (hereinafter "Provider"). Provider and the Customer
may be referred to individually as "Party" or collectively as "Parties."
WHEREAS, the Customer and Provider entered into that certain City Agreement last signed April
20, 2005 (the "Agreement"); and
WHEREAS, the Customer and Provider desire to amend, Agreement as set forth herein.
NOW THEREFORE, in consideration of these mutuai undertakings herein contained, and other
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the
Customer and Provider, intending to be legally bound hereby, agree as follows:
1. Effective upon execution of this Amendment and Scheduie A attached hereto, the
Agreement is hereby amended as specified herein.
2. Amendments. Customer and Provider hereby agree that the Agreement shall be amended,
modified, and changed as follows:
a. Provision of Services. The Provision of Services Section of the Agreement is hereby
deleted and repiaced with the following:
Provision of Services
Provider will install 802.11 wireless ("WiFi") access zones providing general coverage
in the outdoor areas aiong the paved roadways in the areas shown on the Schedule A
coverage map. The Customer may install and interconnect its 802.11 WiFi wireiess
capable equipment within such coverage area. 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 in the areas generally identified 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.
b. Service Level Aareement. The Service Level Agreement Section of the Agreement is
hereby deleted and replaced with the following:
Service Level Aareement (SLA)
Should Customer experience a material degrad<ition 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.
Due to the impact of atmospheric conditions, line of sight obstructions, interferences or
other occurrences out of Provider's reasonable control, there may be (i) unforeseen
interruptions of service, and (ii) outdoor areas with limited or no WiFi coverage, and (iii)
little or no coverage inside of any structure. """
c. Limitation of Service. The following Limitation of Services section shall be incorporated
into and made a part of the Agreement immediately following the Use of Services
Section:
Limitation of Service
The services provided pursuant to this Agreement shall not be used for 911/E911
services, mission critical services or any emergency services whatsoever.
The services provided pursuant to the Agreement are unprotected/non-redundant and
therefore subject to material degradation, impairment and/or outages and thus
10f6.
FIRST AMENDMENT TO
CITY AGREEMENT
Customer acknowledges and agrees that its uses of the services other than for
completely discretionary purposes (e.g., non-critical Internet access constitutes a
completely discretionary use) are at its sole liability and risk.
Customer understands and acknowledges that WiFi zone coverage within any building
or structure will be limited, if available at all.
d. Schedule A. Schedule A of the Agreement is hereby deleted and replaced with the
Schedule A attached hereto.
3. No Other Amendment. Except as expressly set forth herein, all of the terms and conditions
of the Agreement shall remain in full force and effect, without any change whatsoever.
4. Authority.. Provider hereby represents and warrants to Customer that: (i) Provider
possesses full power and authority to enter into and perform this Amendment and to
perform its obligations under the Agreement; (ii) the execution, delivery, and performance
of this Amendment and the Agreement have been duly authorized by the members of
Provider. Customer hereby represents and warrants to Provider that: (i) Customer
possesses full power and authority to enter into and perform this Amendment and to
perform its obligations under the Agreement; (ii) the execution, delivery, and performance
of this Amendment and the Agreement have been duly authorized by the members of
Customer; and (Hi) Customer's performance under this Amendment and the Agreement
shall not violate any federal, state, or municipal laws, rules, or regulations.
5. Counterparts. This Amendment may be executed in two (2) or more counterparts, each of
which when executed and delivered shall be deemed to be an original, and all of which
when taken together shall constitute one and the same instrument.
6. Capitalized Terms. Capitalized terms used herein, but not otherwise defined, shall have
the meaning ascribed to them in the Agreement.
7. Conflict. In the event there is any conflict between the terms and conditions of this
Amendment and the terms and conditions of the Agreement, the terms and conditions of
this Amendment will prevail. The Agreement, as amended hereby, shall remain in full force
and effect.
8. Entire Aareement. The Agreement, including any Schedules to the Agreement, and this
Amendment (including any Schedules hereto) constitute the entire agreement between the
parties with respect to the subject matter hereof and supersede all previous agreements,
oral or written, between the parties concerning the subject matter hereof. No modification
or amendment of the terms of the Agreement or this Amendment shall be effective except
by a writing executed by both parties.
IN WITNESS WHEREOF, the parties have entered into this Amendment as of the date first
written above.
The undersigned Parties have read and agree to the terms and conditions set forth in this
Amendment and the Schedule(s) attached hereto.
SIGNATURES ON NEXT PAGE
2of6.
ATTEST:
FIRST AMENDMENT TO
CITY AGREEMENT
BYf}c#c'iZJ~ -Af1Ikd;
. y Clerk I ' 7
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Approved as to Form and
Lega fficiency:
y Attorney
Print Name
CITY OF BOYNTON BEACH, FLORIDA
.PTLLC ACQUlflON CO., LLC
By: U.l. 06.._ t
,
Title: '" \) f
'".
30f6.
WiFi Zone:
Pilot Term: 6 months
Termination process during Pilot Term: Customer may cancel Service durinq the 6 Month
Pilot Term by submittinq 90 days advance notice to Provider
Term: 36 months
Desired WiFi Coverage Area:
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CITY AGREEMENT
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To facilitate such WiFi coverage area, in accordance with the Equipment and Installation for
Service Section of the Agreement, Customer shall provide to Provider adequate attachment
rights, power, etc. at the following latitude/longitude coordinates at an elevation not less than
forty (40) feet above ground level:
4of6.
CITY AGREEMENT
SCHEDULE A
Approximate
General Site Location/Description LA TITUDE LONGITUDE Attachment Height
Above Ground Level
US 1/Lakeside Harbor 26 32 59.28 N 080 03 20.58 W 40'
1/2 way down Seaview Cir off of US 1 2632 30.78 N 0800320.88 W 40'
.1 miles down NE 9th east of US 1 26 32 09.24 N 080 03 23.04 W 40'
CRA BLDG - corner of Casa Loma and 40'
Ocean Ave 2631 38.04 N 080 03 24.42 W
corner of SE 6th and US 1 263118.00N 080 03 28.50 W 40'
corner of Woolbright and US 1 263052.80 N 0800333.12 W 40'
corner of SE 23rd and US 1 26 30 26.88 N 0800335.16 W 40'
corner of NW 10th Ave and Seacrest Blvd 263210.38 N 080 03 51.90 W 40'
corner of Ocean Ave and NW 2nd 2631 38.04 N 080 04 02.58 W 40'
corner of NW 10th and NW 4th 263210.86 N 08004 12.72 W 40'
on Miller Rd 1/2 way between Old Dixie and 40'
US 1 26 29 52.08 N 080 03 46.32 W
222 N.E. 9th Avenue 2632 3.40 N 080 03 42.80 W Between 80' & 120'
Charges
Aggregate Access Capacity:
Monthly recurring charge:
Non-recurring charge:
Associated WiFi Services
Services - Provider will provide 802.11 b wireless access to the internet in generally open outdoor areas
outlined above. As Customer has express intent to restrict access to particular content and web
pages, Provider will provide connectivity from the Internet to Customer's filtering device, and
connectivity from the 802.11 network to Customer's filtering device, provided however that Provider is
not responsible for the configuration, administration or troubleshooting of Customer provided equipment
or usage restriction policies.
Technical Support Telephone Number - Provider will provide a designated technical support telephone
number, which will be prominently placed on the initial sign-on page. This technical support number will
provide recorded instructions for connection to the wireless network and basic troubleshooting steps.
This recording 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.
Reoortina
Utilization Data - Utilizing customer provided content filtering equipment, Customer will be permitted to
generate real time reports showing the number of users currently online, frequency of use, duration of
use, time of day, sites visited, duration of each site visited, and kilobytes downloaded from each site.
Provider will provide to customer audit logs and error logs from Provider's equipment relating to the
Pilot Project, upon request, to the extent that such logs are available.
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 through customer
provided equipment.
3 MB
$ 3.100
$ 4.200
(non-refundable)
5of6.
CITY AGREEMENT
SCHEDULE A
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. Provider will assist Customer to create,
measure and analyze consumer response to online and offline marketing activities.
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:
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.
6of6.
Level 3 Communications, LLC
1025 Eldorado Boulevard
Office 32A-524
Broomfield. CO 80021
June 5, 2007
VIA OVERNIGHT DELIVERY
Peter Wallace
City of Boynton Beach
100 East Boynton Beach Boulevard
Boynton Beach, FL 33425
Re: Notice of Asset Sale and Consent to Assignment of Contract
Citv Aareement. effective ADril 19. 2005. and First Amendment
Dear Mr. Wallace,
In connection with our sale of certain wireless assets that Level 3 acquired in connection with our
purchase of Progress Telecom, we are seeking your consent to the assignment of the above-
referenced City Agreement to Megabytes Tech, LLC ("Megabytes"), which is purchasing the
wireless assets from us.
As part of this transaction, Megabytes has agreed to assume the City Agreement and all rights,
obligations and liabilities thereunder. This letter provides you with notice that, at the closing
targeted for June 2007, we intend to assign the City Agreement to Megabytes, and we are
seeking your consent to such assignment and our release from any liabilities accruing following
such assignment. Our Asset Purchase Agreement with Megabytes provides that, at any time on
or before the one-year anniversary of the closing, you may terminate the City Agreement and
assume ownership of the equipment used to provide service to you under the City Agreement
(the "Termination Condition").
We greatly appreciate your signature and prompt return of this Consent in the enclosed self-
addressed envelope.
If you have any questions, please do not hesitate to call me at 720-888-0574.
)t~
ry . Hadlock
lanning & Deployment
CONSENT TO ASSIGNMENT OF CONTRACT SUBJECT TO TERMINATION CONDITION:
CITY OF BOYNTON BEACH
/~
KURT Bf{E3SNER
CITY MANAGER
BOYNTON BEACH. FL
By:
Name:
Title: