R00-119 RESOLUTION NO. R00-//~
A RESOLUTION OF THE CITY COMMISSION OF THE
CITY OF BOYNTON BEACH, FLORIDA, AUTHORIZING
THE MAYOR AND CITY CLERK TO EXECUTE A
FRANCHISE AGREEMENT BETWEEN THE CITY OF
BOYNTON BEACH AND FPL FIBERNET LLG, AND
PROVIDING AN EFFECTIVE DATE.
WH£REAS, Chapter 95-403, Florida Laws, authorizes competition in the
local exchange telecommunications business, effective January 1, 1996, and
~rovides for alternative local exchan§e telecommunications companies to be
;ertified by the Florida Public Service Commission; and
WHERE.aS, FPL Fibernet LLG, has been certified by the Florida Public
Commission as an alternate access vendor and desires to utilize City right-
to serve customers in the City; and
WHEREAS, the City Commission of the City of Boynton Beach, Florida, upon
~n of staff, hereby authorizes and directs the Mayor and City Clerk to
into a Franchise Agreement between the City of Boynton Beach and FPL
LLC to provide telecommunications services; and
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF
CITY OF BOYNTON BEACH, FLORIDA, THAT:
Section 1. The City Commission of the City of Boynton Beach, Florida
hereby authorize and direct the Mayor and City Clerk to execute a Franchise
reement between the City of Boynton Beach and FPL Fibernet LLC, said
reement being attached hereto as Exhibit "A".
Section2. This Resolution shall become effective immediately upon
le.
PASSED AND ADOPTED this ~ day of September, 2000.
Vice Mayor
Mayor Pro Tem
&TTEST:
Cite'Clerk
( C o r P q [~t~,~ ~il~///z
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tO:
FROM:
RE:
DATE:
MEMORANDUM
Sue Kruse, City Clerk.J
Mary Ramsey, Legal Secret~
FiberNet Franchise Agreement
September 11, 2000
0o-II?
Attached is the odginal FPL FiberNet Franchise Agreement with the City
of Boynton Beach, for your safekeeping.
Thank you.
Enclosure as noted
cc: Kurt Bressner, City Manager - w/o encl.
Wilfred Hawkins, Director of Administrative Services - w/o encl.
S:ca~def3ts~citycle~V, rans~bemet Franchise Agreement 9/11/00
JOSIAS,
GOREN, CHEROF, DOODY
ATTORNEYfl AT LAW
SUITE "~00
3099 BAST COMMERCIAL BOULEVARD
FORT LAUDERDALE, FLORIDA 33308
IV-CONSENT AGENDA
ITEM C.2
& EZROL, P.A.
STEVEN L. JOSIAS
SAMUEL S. GOREN
JAMES A. CHEROF
DONALD J. DOOD¥
KERRY L. EZROL
TELEPHONE (954) 771-4500
FACSIMILE (954) 771-4923
August 31, 2000
MICHAEL D. CIRULLO, JR.
JULIE F. KLAHR
PETER J. BOBER
STACY B. WILLIAMS
VIA COURIER
Daniel E. Taylor, Esquire
TSCS
Tripp Scott
ATTENTION: Rhonda Henderson, Paralegal
110 S.E. Sixth Street
Republic Tower, 15~' Floor
Fort Lauderdale, FL 33301
Re: FPL FiberNet Franchise Agreement with the City of Boynton Beach
Dear Mr. Taylor:
Enclosed, for your review and. execution by your client, please find the original Agreement
.between the City ofBoynton: Beach- and FPL FiberNet. Once your client has executed same,
please have the original deliveredtothe City Attorney's Office, City of Boynton Beach, I00 East
Boynton Beach Boulevard<? Boyntor~ Beack; Florida prior to the City Commission meeting of
September 6, 20001' YOu may'~t Rosemaric' Lamanna at (56I) 742-6050 if you have any
questions~ ~ ~ ~ii~'~'-'
Should you have any questi°n~ or require additional, information, please feel free to contact me,
Sincexety~-
KERRY E., EZROEi
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Enclgsur¢
~ Rosemm'ie Lammmayparaleg~,.Cit~ of BOynton Beach-.
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FRANCHISE AGREEMENT
BETWEEN THE CITY OF BOYNTON BEACH, FLORIDA
AND FPL FIBERNET LLC
FRANCHISE AGRR~MENT
THIS AGREEMENT, effective this __ day of ,2000, is by and between
the CITY OF BOYNTON BEACH ("the CITY") and FPL FIBERNET LLC.
WHEREAS, Chapter 95-403, Florida Laws, authorizes competition in the local exchange
telecommunications business, effective January 1, 1996, and provides for alternative local
exchange telecommunications companies and alternate access vendors to be certified by the
Florida Public Service Commission; and
WHEREAS, FPL FIBERNET LLC has been certified by the Florida Public Service
Commission as an alternate access vendor and desires to utilize CITY right of way; and
WHEREAS, FPL FIBERNET LLC, a Delaware corporation, is registered and
authorized to do business in the State of Florida; and
NOW, THEREFORE, in consideration of the terms and conditions set forth hereto, and
in consideration of the promises and undertakings herein, and other good and valuable
consideration, the receipt and the adequacy of which is hereby acknowledged, the parties hereto
agree as follows:
1.0 ..Grant of Fra~ehi,~o_.
1.1 Subject to the terms of this Franchise Agreement, the CITY hereby grants FPL
FIBERNET LLC a Franchise for the privilege to construct, install, and maintain a portion of a
telecommunication system within the CITY's right of way, said portion and right of way being
described in the Application of FPL FIBERNET LLC dated May 8, 2000, and incorporated
herein by this reference.
1.1. Notwithstanding anything contained herein to the contrary, FPL FIBERNET LLC shall
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not provide services other than alternative access vendor services authorized pursuant to
§364.337(6), Fla. Stat., without the prior written notification to the CITY and payment to the
CITY of any and all authorized additional compensation.
2.0 Term of Franchise.
· This Franchise shall be for a period of five (5) years unless otherwise sooner terminated
in accordance with the terms of this Franchise Agreement. The Franchise shall commence upon
the date of execution by CITY. This Franchise Agreement is subject to all other requirements
and conditions set forth in this Franchise Agreement.
3.0 Non-Exclusive Franchise.
FPL FIBERNET LLC's privilege to use and occupy a portion of the CITY's rights of
way shall be non-exclusive, and the CITY reserves the right to grant a similar or other use of
said rights of way, or any portions thereof, to any person, including the CITY, at any time
during the term of this Franchise Agreement.
4.0 Franchise Subject to Telecommunications Act, State l,aw and Ordinance.
This Franchise Agreement is subject to and shall be governed by all terms, conditions and
provisions of the Telecommunications Act, any amendments thereto, and any other applicable
provision of federal or state law.
5.0 Franchise Subject To Other Laws, Police Power.
5.1. FPL FIBERNET LLC is subject to and agrees to comply with all applicable local, CITY,
state and federal laws, ordinances, roles, regulations and orders, as may be amended from time
to time.
5.2. FPL FIBERNET LLC shall at all times be subject to all lawful exercise of the police
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power of the CITY, and this Agreement is not intended to limit the CITY's exercise of such
power in any way.
6.0 Reservation of Ri~ht~.
6.1. It is explicitly understood that this Franchise Agreement may be modified, after public
notice 'and hearing, to the extent necessary to comply with the laws of the State of Florida and the
requirements of federal law.
6.2. The CITY reserves the right to adopt and incorporate by reference herein, by ordinance,
any additional terms, conditions, or regulations as it shall find necessary in the lawful exercise of
its constitutional powers. Additional regulations adopted by the CITY shall be incorporated into
this Franchise Agreement and complied with by FPL FIBERNET I_LC within sixty (60) days of
the date of adoption of such additional regulations.
6.3. The CITY reserves the right to acquire, purchase, own and/or operate a
telecommunications system to the extent permitted by local, state and federal law.
6.4. Both the CITY and FPL FIBERNET LLC reserve and may seek any and all remedies
available at law and equity. Neither the CITY nor FPL FIBERNET LLC shall be deemed to
have waived any rights or remedies at law Or equity by virtue of executing this Franchise
Agreement.
7.0 Insurance.
7.1. Without limiting any of the other liabilities of FPL FIBERNET LLC, FPL FIBERNET
LLC shall furnish evidence to CITY prior to its execution of this Franchise Agreement and shall
maintain in force at all times during the term of this Agreement the following insurance:
7.1.1..Comprehensive General Liability In.qurane~ in an amount of not less than One
Million and 00/100 ($1,000,000.00) Dollars per occurrence combined single limit for bodily
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injury and property damage. This coverage shall include premises and/or Operations,
Independent Contractors, and Subcontractors, Products and/or Completed Operations, Board
Form Property Damage, XCU Coverage and a contractual Liability.
7.1.2. Business Automobile Liability Insurance_ covering all owned, non-owned, and
hired (,ehicles used in connection with the performance of services under this Agreement in an
mount not less than Five Hundred Thousand and 00/100 ($500,000.00) Dollars combined single
limit for bodily injury and property damage liability.
7.1.3. Workers' Compensation ln.~uranee in compliance with Chapter 440, Florida
Statutes, and all applicable' federal laws. The policy must include Employers' Liability with a
minimum of One Hundred Thousand and 00/100 ($100,000.00) Dollars per accident.
7.2. The insurance coverage obtained by FPL FIBERNET LLC to comply with this Section
shall be approved by the CITY, which approval shall not be unreasonably withheld, and all
certificates of insurance, together with written evidence of payment of required premiums, shall
be fried and maintained with the CITY. The certificates of insurance filed pursuant to this
subsection must contain a statement that the CITY shall receive at least thh'ty (30) days' advance
written notice of any non-renewal, cancellation, or modification of insurance or reduction in
coverage. CITY shall be included as an "Additional Insured."
7.3. CITY reserves the fight to review and reasonably amend the insurance requirements if it
is determined that such adjustments are necessary to protect CITY's interests. CITY shall give
FPL FIBERNET LLC at lease sixty (60) days written notice of any new insurance requirements.
FPL FIBERNET LLC shall furnish CITY with a certificate(s) of insurance whenever CITY so
requests, as evidence that such insurance is in force. CITY reserves the right to require a
certified copy of such certificate(s) upon request.
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7.4. Compliance with the foregoing insurance requirements shall not relieve FPL FIBERNET
LLC of any liability and obligations under this Article or under any other section of'this
Agreement.
7.5. All insurance policies required in this Article shall be without any deductible amount and
shall l~e issued by companies authorized to do business in the State of Florida, with management
and financial strength qualifications set forth by CITY's Risk Management Division.
7.6. FPL FIBERNET LLC and the CITY agree that FPL FIBERNET LLC may self-insure its
obligations under this Franchise Agreement. FPL FIBERNET LLC shall provide the CITY with
thirty (30) days written notice prior to cancellation, revocation, non-renewal, or material change
in such self-insurance.
8.0 Indemnffication of the CITY.
8.1. FPL FIBERNET LLC agrees at its sole cost and expense to fully indemnify, hold
harmless, and defend at the CITY Attorney's option, the CITY, its officials, officers, boards,
commissions, commissioners, agents, and employees against any and all actions, claims, suits,
penalties, liabilities and judgments for damages at law or equity of any nature whatsoever,
including but not limited to, costs and expenses for legal fees and disbursements assumed or
incurred by the CITY and the reasonable value of any services rendered by the CITY Attorney
arising out of or in connection with:
8.1.1. The construction, installation, maintenance,~ or operation of FPL FIBERNET
LLC's telecommunications system; or
8.1.2. The conduct of FPL FIBERNET LLC's business, including any acts or
omissions of FPL FIBERNET LLC, its servants, employees, or agents, whether or not sucl~ act
or omission is authorized, required, allowed or prohibited by this Franchise Agreement.
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9.0 Construction Bond.
FPL FIBERNET LLC shall furnish a construction bond in favor of the CITY in the
amount of Fifty Thousand ($50,000.00) Dollars. If such construction bond is not furnished to
the CITY within forty-five (45) days of the effective date hereof, this Franchise Agreement and
the grant of the Franchise will become null and void without further action by the CITY. The
construction bond must be approved by the CITY, which approval shall not be unreasonably
withheld.
10.0 Liabili~. FPL FIBERNET LLC agrees that CITY shall not be responsible or liable for
injuries to persons or damage to public or private property when such injuries or damage is
caused by the actions of FPL FIBERNET LLC or results from FPL FIBERNET LLC's use of
CITY's rights-of-way under the terms of this Agreement.
11.0 Release of CITY Liability. FPL FIBERNET LLC acknowledges and realizes that
potential dangers and risks associated with the types of activities described herein and hereby
agrees to release, waive, discharge, and covenants not to sue CITY, its officers, agents, and
employees for any and all liability to persons for any and all damage, social, and economic losses
and any rights or claims which may be sustained by them directly or indirectly in connection
with, or solely arising out of FPL FIBERNET LLC's use of CITY's rights-of-way for the
purposes set forth in this Agreement.
12.0 Use of Rights of Way
12.1 FPL FIBERNET LLC and CITY acknowledge and agree that a non-exclusive Franchise
is hereby granted to FPL FIBERNET LLC to utilize that portion of CITY's rights-of-way
described in Exhibit "A" in accordance with the terms and conditions of this Agreement for the
sole purpose of installing fiber optic cable lines. Use of the rights-of-way described in Exhibit
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"A" shall be from a point-to-point basis and shall be for a definite mount of linear feet. Any
future request by FPL FIBERNET LLC for a permit as described in this Agreement and at such
locations identified in Exhibit "A" shall require only notification to CITY and permitting by the
Engineering Division.
12.2 'All of FPL FIBERNET LLC's telecommunications system facilities shall be installed
and maintained underground to the extent required by local or state law.
12.3 FPL FIBERNET LLC shall utilize, with the owner's permission, existing conduits,
poles, or other facilities whenever feasible. FPL FIBERNET LLC has the duty and the
responsibility to obtain or establish the existence of an easement or dedication for its use.
Copies of agreements for use of conduits or other facilities shall be filed with the CITY upon
the CITY's request.
12.4 All of FPL FIBERNET LLC's transmission lines, equipment, structures and other
facilities shall be installed, located and maintained so as to cause minimum interference with the
rights and convenience of property owners. The CITY may issue such roles and regulations
concerning the installation and maintenance of a telecommunications system installed in, on, or
over public Streets, as may be consistent with the CITY~ s Code of Ordinances.
12.5 All safety practices required by law or accepted industry practices and standards shag be
used during construction, maintenance and repair of the telecommunications system..
12.6 As required by the CITY, and upon receipt of written notice from the CITY, FPL
FIBERNET LLC shall remove, relocate, replace or modify at its own expense (except as
otherwise required by law) its facilities within any public Street.
12.7 FPL FIBERNET LLC shall obtain any required permits and pay any required fees before
commencing any construction on or otherwise disturbing any private property or public Streets
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as a result of its construction or operations. FPL FIBERNET LLC shall, at its own expense,
restore such property to a condition as good as its former condition. If such restoration is not
performed in a reasonable and satisfactory manner within thirty (30) calendar days, the CITY
may, after prior notice to FPL FIBERNET LLC, cause the repairs to be made at FPL
FIBE~2qET LLC's expense.
12.8 If the CITY is required to perform emergency Street work requiring relocation of FPL
FIBERNET LLC's facilities in the Streets, then FPL FIBERNET LLC shall reimburse the
CITY for its reasonable costs associated with such relocation.
12.9 FPL FIBER_NET LLC slaall not place facilities, equipment or fLxtures where they will
interfere with any gas, electric, telephone, water, or sewer facilities, or obstruct or hinder in any
manner the various utilities serving the residents of the CITY. All such facilities, equipment or
f'mtures placed in any public Street slmll be placed close to the line of the lot abutting on the
public Street, in a manner so as not to interfere with use of the public Street.
12.10 FPL FIBERNET LLC agrees to abide by the Minimum Standards Applicable to Public
Rights-of-Way adopted, or amended, by CITY. FPL FIBERNET LLC shall furnish the
Engineering Division with engineering plans and application for plan review, make any required
corrections', obtain plan approvals, submit application for permit and. .obtain a rights-of-way
permit through a Franchised engineering contractor, furnish shop drawings signed and sealed by
an engineer Franclaised in the State of Florida for any structures placed in the rights-of-way,
obtain CITY approval of a Maintenance of Traffic Plan for the project, schedule, and attend a
pre-construction meeting prior to commencing work in the public rights-of-way and provide as-
built drawings signed and sealed by a professional land surveyor Franchised in the State of
Florida. FPL FIBERNET, LLC shall require in writing that any and all licensees or users
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utilizing its facilities to comply with all roles, regulatiom, laws, and ordinances of CITY.
12.11 Prior to authorizing any telecommunication, communication, or cable company to expand
its telecommunications, communication or cable system in the CITY, FPL FIBERNET LLC shall
notify the CITY in writing and furnish the identity and address of the company.
13.0 ..Restoration of Area. FPL FIBERNET LLC warrants to CITY that it will be responsible
for promptly cleaning up and restoring that portion of CITY's rights-of-way affected by this
Agreement. If FPL FIBERNET LLC fails to clean up and restore to CITY's satisfaction, CITY
may, within seventy-two (72) hours notice to FPL FiBERNET LLC, clean up and restore
CITY's rights-of-way at FPL FIBERNET LLC's sole expense. FPL FIBERNET LLC will
remit CITY's costs for clean up and restoration within thirty '(30) days of CITY invoicing FPL
FIBERNET LLC.
14.0 Performance of Acfi_'vifien. FPL FIBERNET LLC agrees to abide by the work schedule
requirements specified in the permit for work in CITY's rights-of-way except for emergency
work def'med and authorized by City Engineer or his designee.
15.0 Franchise Fee.
15.1 In consideration of the privilege granted herein to use and occupy the portion of
the City's right of way identified on Exhibit "A," to construct, install, and maintain its
telecommunications system, FPL FIBERNET LLC shall pay to the CITY a Franchise fee equal
to five hundred dollars ($500.00) per lineal mile of the Company's System which makes physical
use of the Public Rights-of-Way; provided, however, that the fee imposed hereunder shall not
apply in any manner to the Company if it commences to provide such telecommunication services
as defined in Section 203.012(3) (Florida Statutes), in which case the Company shall pay to the
City a fee calculated as stated in Section 337.401(3) (Florida Statutes).
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15.2 The Company shall calculate the amount of the annual franchise fee payment on
the date the Agreement is adopted, and subsequently on each anniversary of that date thereafter,
based on the total mileage of the Company's System installed in the Public Rights-of-Way on that
date. Payments by the Company shall be made within thirty-five (35) days therea/ter, and shall
be acc~)mpanied by an explanation of the calculation of the payment amount. Payments received
after the 36~ day shall be subject to interest charges of 12% per annum or the highest amount
then permitted by law, whichever is lower.
15.3 Notwithstanding anything included in this Agreement to the contrary, in no event
shall the Company be required to pay any fee, charge, cost, expense or compensation, or perform
any service, that is in excess of that amount permitted or directed .by law.
15.4 To the extent that Chapters 202 and 337, Fla. Stat. conflict and preempt with this Section,
then Chapters 202 and 337 shall preempt and supersede this Section concerning the payment of
franchise fees by FPL FIBERNET LLC to the CITY,
15.5 The acceptance by the CITY of any payment from FPL FIBERNET LLC of the
Franchise fee shall not constitute a release or an accord and satisfaction of any claim the CITY
may have against FPL FIBERNET LLC for performance of any of its obligations under this
Franchise Agreement, or local, state or federal law.
15.6 Following the expiration or the termination for any reason of its Franchise, FPL
FIBERNET LLC shall pay the Franchise fee owed as of the date that its operations ceased within
mety (90) calendar days of ceasing such operations.
15.7 FPL FIBERNET LLC expressly agrees that: (i) the Franchise fee payments to be made
pursuant to this Section shall not be deemed to be in the nature of a tax; (ii) such Franchise fee
payments shall be in addition to any and all taxes of a general nature and not applicable solely to
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telecommunications system operations within the CITY or other fees or charges which FPL
FIBERNET LLC shall be required to pay to the CITY or to any state or federal agency or
authority, as required herein or by law, all of which shall be separate and distinct obligations of
FPL FIBERNET LLC; (iii) FPL FIBERNET LLC shall not have or make any claim for any
deduct]on or other credit of all or any pan of the amount of said Franchise fee payments from or
against any of said CITY taxes or other fees or charges which FPL FIBERNET LLC is required
to pay to the CITY, except as agreed herein or required by law; (iv) FPL FIBERNET LLC shall
not apply nor seek to apply all or any pan of the amount of said Franchise fee payments as a
deduction or other credit from or against any of said CITY taxes or other fees or charges, each of
which shall be deemed to be separate and distinct obligations of FPL FIBERNET LLC; (v) FPL
FIBERNET LLC shall not apply or seek to apply all or any pan of the amount of any of said
taxes or other fees or charges as a deduction or other credit from or against any of its Franchise
fee obligations, each of which shall be deemed to be separate and distinct obligations of FPL
FIBERNET LLC; and (vi) the Franchise fee specified herein is the fair market value for the grant
hereunder of a Franchise for use of the portion of the right of way, including all public
easements, public fights-of-way and other entitlement to use, occupy or traverse public property,
for the purpose of operating a telecommunications system.
16.0 Right to Inspect Financial Records and Facilities.
16.1 FPL FIBERNET LLC shall maintain a complete set of books and records, including
plans, contracts, and engineering records.
16.2 The CITY shall have the right to inspect and conduct financial audit, at FPL FIBERNET
LLC's local office, and copy the books and records specified in subsection 16.1 hereof and such
other records as may be required by the CITY to perform its regulatory responsibilities, The
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CITY agrees to carry out any such inspection during FPL FIBER.NET LLC's normal business
hours and upon reasonable notice. Access by the CITY to FPL FIBER_NET LLC's books and
records shall not be denied on grounds that such books and records contain proprietary or
confidential information.
16.3 ' The CITY shall accord all books and records that it inspects under this Section the degree
of confidentiality such books and records are entitled to under federal and state law. FPL
FIBERNET LLC's books and records shall not constitute public records, except to the extent
required by state law. To the extent FPL FIBERNET LLC considers any books or records that it
is required to produce to be confidential or otherwise protected from public disclosure, FPL
FIBERNET LLC shall designate which documents it views as protected and provide a written
explanation to the CITY of the legal basis for FPL FIBERNET LLC's claim of protection.
16.4 The CITY shall have the right to inspect FPL FIBERNET LLC's facilities and property
during FPL FIBERNET LLC's normal business hours and upon reasonable notice.
17.0 Modification of Franchi,~e.
FPL FIBERNET LLC shall file an application with the CITY for any modification of its
Franchise. This Agreement may not be modified unless such modification is approved by both
parties in writing.
18.0 Transfer of Franchise.
18.1 Franchisee shall not assign or transfer its franchise or any right, title or interest in this
Agreemem without the written consent of the CITY, which consent will not be unreasonably
withheld; except that upon written notice to the CITY; and upon submission of a statement by
the assignee that it assumes all obligations of Franchisee under this Agreement, Franchisee
may make such assignmem to: (a) a subsidiary, affiliate or parent company; or (b) any fu'm or
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corporation which Franchisee controls, is controlled by, or is under common control with; or
(c) any partnership in which it has a majority interest; or (d) to any entity which succeeds to all
or substantially all of its assets whether by merger, sale or otherwise. Consent will be deemed
granted within 120 days of any request unless the CITY f'mds that the proposed assignee or
transferee lacks the legal, financial or technical qualifications to operate Franchisee's system.
18.2 Franchisee shall file an application to transfer its franchise or to transfer control of
Franchisee. Such application shall allow the terms and conditions of this Agreement to be
negotiable.
18.3 In the event of an unauthorized transfer in violation of this Section, the entire amount of
the bond established pursuant to Section 9 hereof shall immediately revert to the CITY, and
Franchisee shall be subject to all applicable sanctions set forth in this Agreement.
19.0 Termination. This Agreement may be terminated by either party in the event of the
following occurrences:
19.1. In the event the public right of way is closed, abandoned, vacated, discontinued,
reconstructed, widened, or repaired by CITY. In this event, CITY shall notify FPL FIBERNET
LLC in writing of the need to relocate its facilities and FPL FIBERNET LLC shall have a
reasonable period to relocate same.
19.2. Either party is in default of its obligations under this Agreement and:
19.2.1 That party has been given written notice of the nature and manner of such default;
19.2.2 That party does not start to take action to correct such default within ten (10)
days after receiving such written notice; and
19.2.3 That party fails thereafter to proceed diligently and promptly to remedy or
correct the default to the reasonable satisfaction of the non-defaulting 'party.
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19.3. Any and all rights, remedies, and options given herein shall be cumulative and in
addition to and without waiver of, or in derogation of, any right or remedy given under any laws
now or hereafter in effect, including, but not limited to CITY's right to recover any and all
damages caused by FPL's breach.
20.0 Abandonment and Removal.
20.1. In the event that the use of any property of FPL FIBERNET LLC located within the
City's property or a portion thereof is discontinued for a continuous period of twelve (12)
months, FPL FIBERNET LLC shall be deemed to have abandoned that property.
20.2. CITY, upon such terms as CITY may impose, may give FPL FIBERNET LLC
permission to abandon, without removing, any System facility or equipment laid, directly
constructed, operated or maintained in, on, under or over the CITY's property. Unless such
permission is granted or unless otherwise provided by CITY, FPL FIBERNET LLC shall
remove all such facilities and equipment upon receipt of written notice from CITY and shall
restore any affected Property to substantially its former state at the time such facilities and
equipment were installed, so as not to impair its usefulness. In removing its plant, structures
and equipment, FPL FIBERNET LLC shall refill, at its own expense, any excavation made by
or on behalf of FPL FIBERNET LLC and shall leave all Property and other public ways and
places in substantially as good condition as that prevailing prior to such removal without
materially interfering with any electrical or telephone cable or other utility wires, poles or
attachments. CITY shall have the right to inspect and reasonably approve the condition of the
Property, streets, public ways, pubJic places, cables, wires, attachments, and poles prior to and
after removal. The liability, indemnity and insurance provisions of this Agreement and any
security fund provided for herein shall continue in full force and effect during the period of
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removal and until full compliance by FPL FIBERNET LLC with the terms and conditions of
this Section.
20.3. Upon abandonment of any property in place, FPL FIBERNET LLC, if required by
CITY, shall submit to CITY a bill of sale and/or other instrument satisfactory in form and
content to the CITY, transferring to the CITY the ownership of the property abandoned.
20.4. At the expiration of the term for which the Franchise is granted, or upon its earlier
revocation or termination, as provided for herein, in any such case without renewal, extension
or transfer, the CITY shall have the right to require FPL FIBERNET LLC to commence
removing, at its own expense, all above-ground portions of the Telecommunications System
from all Property, streets and public ways within a reasonable period of time, which shall not
be less than one hundred eighty (180) days.
20.5. The FPL FIBERNET LLC may, with the consent of the CITY, abandon any
underground property in place so long as it does not materially interfere with the use of the
Property, street or rights-of-way in which such property is located or with the use thereof by
any public utility or other cable grantee, Franchisee, or Franchise.
21,0 Notices. All notices required herein shall be given in writing and shall be sent by United
States mail, postage prepaid, return receipt requested, hand delivery evidenced by a delivery
receipt, or by ovemight express delivery service addressed to the party for whom it is intended at
the place last specified. All notices given shall be deemed to have been given upon receipt.
Either party shall have the right, by giving written notice to the other, to change the address at
which its notices are to be received. Until any such change is made, notices shall be delivered as
follows:
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CITY:
BOYNTON BEACH
100 East Boynton Beach Boulevard
Boynton Beach, Florida 33425
Attention: Kurt Bressner, City Manager
(561) 742-6060 / (561) 742-6090 facsimile
With Copy to:
James A. Cherof, City Attorney
Josias, Goren, Cherof, Doody & Ezrol, P.A.
3099 East Commercial Boulevard, Suite 200
Fort Lauderdale, FL 33308
(954) 771-4500 / (954) 771-4923 facsimile
FPL FIBERNET LLC:
Sol Stamm, Controller
FPL FiberNet 1JJC
9250 W. Flagler Street
Post Office Box 029100
Miami, FL 33102-9100
(305) 552-3183
With a copy to:
James A. Scott, Esq.
Edward J. Pozzuoli, Esq.
Daniel E. Taylor, Esq.
Tripp Scott
110 S.E. Sixth Street, 15~ Floor
Fort Lauderdale, FL 33301
(954) 525-7500 / (954) 761-8475 facsimile
R. Wade Litchfield, Esquire
700 Universe Boulevard
Juno Beach, FL 33408
22.0 Miscellaneous.
22.1. Entire A~eement. 'This Agreement shall constitute the full and final expression of intent
of the parties, and no paragraph, clause, condition, or privilege may be modified, varied, altered,
or added except by a written agreement executed by the parties hereto with equal dignity.
22.2. Merger. This document incorporates and includes all prior negotiations, correspondence,
conversations, agreements, or understandings applicable to the matters contained herein; and the
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parties agree that there are no commitments, agreements, or understandings concerning the
subject matter of this Agreement that are not contained in this document. Accordingly, the
parties agree that no deviation from the terms hereof shall be predicated upon any prior
representations or agreements, whether oral or written.
22.3. Assignment. This Agreement shall not be transferred or assigned, in whole, or in part,
by FPL FIBERNET LLC without the prior written consent of CITY, which consent shall not be
unreasonably withheld, except as provided in paragraph 18.1.
22.4. Successors and Assi~c~ns. This Agreement shall be binding upon and inure to the benefit
of the successors and assigns of the parties hereto where permitted by this Agreement.
22.5. Contract Admini~trator and Desi.~,nated Representati_'ve. CITY's Contract
Administrator for this Agreement is the City Manager. FPL FIBERNET LLC's Designated
Representative for this Agreement is R. Wade Litchfield, Esquire. In the administration of this
Agreement, as contrasted with matters of policy, all parties may rely upon the instructions or
determinations made by the respective Contract Administrator and the Designated Representative.
22.6. Joint Preparation. The preparation of this Agreement has been a joint effort of the
parties and the resulting document shall not, solely as a matter of judicial construction, be
construed more severely against one of the parties than the other by virtue of the fact that it may
have been physically prepared by one party or its attorneys.
22.7. Venue. This Agreement is governed by the laws of Florida. Any disputes relating to this
Agreement shall be resolved in accordance with the laws of Florida and venue for any action
shall be Broward County, Florida.
22.8. Compliance with Laws. FPL FIBERNET LLC shall comply with all statutes, laws,
ordinance, rules, regulations, and lawful orders of any governmental entity or public authority
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which may be applicable to the use of the premises by FPL FIBERNET LLC.
22.9. Records. If the Florida Public Records Act is applicable to FPL FIBERNET LLC, FPL
FIBERNET LLC shall preserve and make available all records and documents pertinent to this
Agreement in accordance with the requirements of Chapter 119, Florida Statutes. In addition,
FPL ~IBERNET LLC shall preserve and make available to CITY all financial records,
supporting documents, statistical records, and any other documents pertinent to this Agreement
for a period of time as required by the Public Records Law or for a period of four (4) years after
termination of this Agreement, whichever is longer, or if an audit has been initiated and audit
findings have not been resolved at the end of these four (4) years, the records shall be retained
until resolution of he audit findings.
22.10. Third-Part'v Beneficiaries. Neither FPL FIBERNET LLC nor CITY intends to directly
or substantially benefit a third-party by this Agreement. Therefore, the parties agree that there
are no third-party beneficiaries to this Agreement and that no third-party shall be entitled to assert
a claim against either of them based upon this Agreement.
22.11. Severability. In the event a portion of this Agreement is found by a court of competent
jurisdiction to be' invalid, the remaining' provisions shall continue to be effective.
22.12. No Propertlz Rightq. This Agreement shall not be deemed a lease of any CITY property
for the use permitted hereunder granting FPL FIBERNET LLC any property fights or leasehold
interest, but rather a Franchise to use and occupy the respective rights of way under the terms
and conditions stated herein.
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IN WITNESS OF THE FOREGOING, the parties have set their hands and seals the day
and year first written above.
FPL FIBERNET LLC
~ Ngme~ ~
Title: ~. x~- ~IL' ~v-o._x~
Dated:C~ I~/oo
AS WITNESS may hand and Notary Seal.
My Commission expires:
Corporate Seal
ATTEST:
S~ ~USE,
CITY CLE~
CITY.
CITY OF BOYNTON BEACH
z GERALD BROENING, MAYOR
APPROVED AS TO FORM
JAMES A. CHEROF
CITY ATTORNEY
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