R00-106RESOLUTION 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
COMMUNICATION SERVICES OF
INC., D/B/A E.SPIRE, AND
EFFECTIVE DATE.
AMERICAN
JACKSONVILLE,
PROVIDING AN
WHEREAS, Chapter 95-403, Florida Laws, authorizes competition in the
ocal exchange telecommunications business, effective January 1, 1996, and
for alternative local exchange telecommunications companies to be
by the Florida Public Service Commission; and
WHEREAS, American Communication Services of Jacksonville, Inc., d/b/a
e.spire, has been certified by the Florida Public Service Commission as an alternate
local exchange telecommunications company and desires to utilize City right-of-way
to serve customers in the City; and
WHEREAS, the City Commission of the City of Boynton Beach, Florida, upon
recommendation of staff, hereby authorizes and directs the Mayor and City Clerk to
enter into a Franchise Agreement between the City of Boynton Beach and American
Communication Services of Jacksonville, Inc., d/b/a e.spire to provide
telecommunications services; and
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF
THE CITY OF BOYNTON BEACH, FLORIDA, THAT:
Section 1. The City Commission of the City of Boynton Beach, Florida
does hereby authorize and direct the Mayor and City Clerk to execute a Franchise
Agreement between the City of Boynton Beach and American CommUnication
Services of Jacksonville, Inc., d/b/a e.spire., said Agreement being attached hereto
as Exhibit "A".
Section2. This Resolution shall become effective
passage.
PASSED AND ADOPTED this ~ day of July, 2000.
ATTEST:
Cit~ Cl,e~ml HI,,///'
S'~ ¢~ranchise Agr ~ e~061300
% *L O*O~,,,'''~
immediately upon
CitY O~ BOYNTON Bi, ACH, FLORIDA
~ce Mayor
Commissioner
Law Offices
HOLLAND & IGNIGHT LLP
One East Broward Boulevard, Suite 1300
PO. Box 14070 (ZIP 33302-4070
Foal Lauderdale, Florida 33301
954-525-1000
FAX 954-463-2030
www.hklaw, com
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Representative Offices:
.Buenos Aires
Tel Aviv
August 28, 2000
GERALD L. KNIGHT
954-468-7868
Internet Address:
gknight~hklaw.com
Sue Kruse, CMC/AAE
City Clerk
City of Boynton Beach
P.O. Box 310
Boynton Beach, FL 33425-0310
Re: Resolution Number R00106 i~) the Franchise
American Commun~vices of Jacksonville
Agreement with
Dear Ms. Cruise:
Please find enclosed a fully executed original copy of the Franchise
Agreement between the City of Boynton Beach, Florida and American
Communication Services of Jacksonville, Inc. d/b/a e.spire. Please note that I
have merged the signature pages of American Communication Services of
Jacksonville, Inc. and the City of Boynton Beach. Also note that on page 1 of the
Franchise Agreement I have corrected a scrivener's error in the third
',WHEREAS" in that American Communication Services of Jacksonville, Inc. is a
"Maryland" corporation and not a "Florida'' Corporation.
Thank you for your cooperation.
cc: Kerry Ezrol, Esq. (w/encl.)
FTL1 g505640 vl
FRANCHISE AGREEMENT
BETWEEN
THE CITY OF BOYNTON BEACH, FLORIDA
AND
AMERICAN COMMUNICATION SERVICES OF JACKSONVILLE, INC.
d/b/a e.spire
FRANCHISE AGREEMENT
THIS AGREEMENT, effective chis __ day of , 2000. is by and
between the CITY OF BOYNTON BEACH, FLORIDA ("the CITY") and.
AMERICAN COMMUNICATION SERVICES OF JACKSONVILLE, INC. d/b/a
e.spire ("Franchisee").
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 to be. certified by the
Florida Pubhc Service Commission; and
WHEREAS, Franchisee has been certified by the Florida Pubhc Service
Commission as an alternate local exchange telecommunications company and desires
co utilize CITY right of way to serve customers in the CITY: and
WHEREAS, Franchisee, a Maryland corporation, is authorized to do business
in the State of Florida; and
NOW, THEREFORE, in consideration of the terms and conditions set forth
herein, 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 Franchise.
1.1. Subject to the terms of this Franchise Agreement the CITY hereby grants
Franchisee a franchise for the right and privilege to construct, install, and maintain a
telecommunication system within the CITY's right of way.
1.2. Notwithstanding anything contained herein to the contrary, Franchisee
shall not provide services other than telecommunication service (as defined in. Section
203.012(5), Fla. Stat.) over the system, without the prior written consent of the CITY,
which consent shall not be unreasonably withheld.
2.0 Term of Franchise. The term of this Agreement shall be five (5) years
unless earlier terminated or partially terminated as provided below:
(a) Upon this Agreement being terminated by operation of law; or
(b)
Upon the City's enactment of an ordinance consistent with Section
337.401, Florida Statutes, as amended by Section 50 of SB 1338 in the
2000 Legislative Session ("Section 50"), in which event Franchisee shall
have one hundred twenty (120) days to register in accordance with the
lawful registration provisions of the City's ordinance as required at the
time of the termination. Following such termination of this Agreement,
Franchisee shall be entitled to continue to use the rights-of-way, without
interruption, subject to compliance with the one hundred twenty (120) day
registration requirement; or
On September 30, 2001, if the provisions of Section 337.401, Florida
Statutes, in effect on that date continue to limit local governments to a
registration procedure as opposed to an agreement or franchise for access
to their rights-of-way, Franchisee shall have one hundred twenty (120)
days to register in accordance with said section and the provisions of this
Agreement shall terminate, except for the rights and obligations of this
Section which shall survive a termination. Franchisee shall be entitled to
continue to use the City's rights-of-way, without interruption, subject to
compliance with the one hundred twenty (120) day registration
requirement; or
(d) If this Agreement is not terminated pursuant to (a), (b) or (c) above, or
otherwise, then at such time as Section 202.24(2)(a), Florida Statutes, as
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enacted by SB 1338 in the 2000 Legislative Session or Section 337.401,
Florida Statutes, as amended by Section 51 of SB 1338 in the 2000
Legislative Session, or other similar statutory provisions become effective
prohibiting a local government from requiring the payment of fees now
required under Section 17.0 of this Agreement, then Section 17.0 shall no
longer be effective.
3.0 Non-Exclusive Franchise. Franchisee's right to use and occupy the CITY's
rights of way shah 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 Subiect to Telecommunications Act, State Law 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. The provisions of
this Agreement shall be construed and enforced consistent with applicable
provisions of federal and state law.
5.0 Franchisee Sub|ect To Other Laws, Police Power.
5.1. Franchisee is subject to and agrees to comply with ali applicable local,
CITY, state and federal laws, ordinances, rules, regulations and orders, as may be
amended from time to time.
5.2. Franchisee shall at all times be subject to all lawful exercise of the police
power of the CITY, and this Agreement is not intended to limit the CITY's exercise of
such power in any way.
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6.0 Reservation of Rights.
6.1. It is exphcitly 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 Franchisee 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.
7,0 Insurance,
7.1. Without limiting any of the other liabilities of Franchisee, Franchisee 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 IAabilitv Insurance in an amount of not less
than One Million and 00/100 ($1,000,000.00) Dollars per occurrence combined single
hmit for bodily injury and property damage. This coverage shall include premises
and]or Operations, Independent Contractors, Products and]or Completed Operations,
Board Form Property Damage, XCU Coverage and a contractual Liability.
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7.1.2. Business Automobile Liability Insur~nca covering all owned, non-
owned, and hired vehicles uSed in connection with the performance of services under
this Agreement in an amount 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 Insurance 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 Franchisee to comply with this Section
shall be approved by the CITY, which approved shall not be unreasonably withheld,
and all certificates of insurance, together with written evidence of payment of
required premiums, shall be filed 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 thirty (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 right 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 Franchisee at least sixty (60) days written notice of
any new insurance requirements. Franchisee 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. Comphance with the foregoing insurance requirements shall not reheve
Franchisee of any hability and obhgations under this Article or under any other
section of this Agreement.
7.5. All insurance policies required in this Article shall be 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.
8.0 Indemnification of the CITY. Franchisee 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, habilities 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. Any processes, or procedures, acts or omissions by Franchisee in connection
with the consideration of an award to Franchisee of this franchise and/or any
amendments thereto and the administration and enforcement of this franchise; or
8.2. The construction, installation, maintenance, or operation of Franchisee's
telecommunications system; or
8.3. The conduct of Franchisee's business, including any acts or omissions of
Franchisee, its servants, employees, or agentS, whether or not such act or omission is
authorized, required, allowed or prohibited by this Franchise Agreement. Provided,
however, that Franchisee shall nOt be responsible for any damageS, attorneys' fees
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or other award in the event Franchisee challenges any provision of this Franchise
Agreement and prevails; and provided further that Franchisee shall not be
responsible to indemnify the CITY for any actions, claims, suits, penalties,
liabilities and judgments for damages, costs or legal fees that arise out of the
negligent acts of the CITY, its agents or employees.
9.0 Construction Bond. Franchisee shall furnish a construction bond in favor of
the CITY in the amount of One Hundred Thousand and 00/100 ($100,000.00) 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 Performance and Payment Bonds. Franchisee shall furnish to CITY,
within thirty (30) calendar days of notice of execution of this Agreement by CITY or
prior to issuance by CITY of the first permit for work in the rights-of-way authorized
pursuant to this Agreement, whichever first occurs, performance and payment bonds
or an irrevocable letter of credit issued by a Florida bank or federally insured lending
institution in the amount of Twenty-Five Thousand and 00/100 ($25,000.00) Dollars.
Such bond(s) must be executed by a surety company authorized to do business in the
State of Florida, in good standing, having a resident agent in the State of Florida and
having been in successful continuous operation for at least five (5) years. The
performance and payment bonds or irrevocable letter of credit shall be used to
guarantee the compliance with the performance requirements and payment of all
sums which may become due to CITY under this Agreement. The bonds or letter of
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credit referenced above shall be maintained in the full amount specified herein
throughout the term of this Agreement and for one (1) year after this Agreement
expires or is terminated, without reduction or allowances for any amounts which are
withdrawn or paid pursuant to this Agreement.
11.0 Liability. Franchisee agrees that CITY shall not be responsible or hable for
injuries to persons or damage to public or private property when such injuries or
damage is caused by the actions of Franchisee or results from Franchisee's use of
CITY's rights-of-way under the terms of this Agreement.
12.0 Release of CITY Liability. Franchisee 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 hability to persons for any and all
damage, social, and economic losses and any fights or claims which may be sustained
by them directly or indirectly in connection with, or arising out of Franchisee's use of
CITY's rights-of-way for the purposes set forth in this Agreement, unless such hability
arises out of the negligent acts of the CITY.
13.0 Use of Rights of Way.
13.1. Franchisee and CITY acknowledge and agree that a non-exclusive license is
hereby granted to Franchisee to utilize the CITY's rights-of-way in accordance with
the terms and conditions of this Agreement for the purpose of installing fiber optic
cable lines. Use of the rights-of-way shah be from a point-to-point basis and shall be
for a definite amount of linear feet. Any future request by Franchisee for a permit as
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described in this Agreement shall require only notification to CITY and permitting by
the CITY's Engineering Division.
13.2. All of Franchisee's telecommunications system facilities shall be installed
and maintained underground to the extent required by the CITY Code.
13.3. Franchisee shall utilize, with the owner's permission, existing conduits,
poles, or other facilities whenever feasible. Franchisee 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, subject to the appropriate protections.
13.4. All of Franchisee'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 rules and regulations concerning the
telecommunications system installed in, on,
consistent with the CITY's Code of Ordinances.
installation and maintenance of a
or over pubhc Streets, as may be
13.5. All safety practices required by law or accepted industry practices and
standards shall be used during construction, maintenance and repair of the
telecommunications system.
13.6. As required by the CITY, and upon receipt of written notice from the CITY,
Franchisee shall remove, relocate, replace or modify at its own expense (except as
otherwise required by law) its facilities within any public Street.
13.7. Franchisee shall obtain any required permits and pay any required fees
before commencing any construction on or otherwise disturbing any private property
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or public Streets as a result of its construction or operations. Franchisee 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 Franchisee, cause the
repairs to be made at Franchisee's expense.
13.8. If the CITY is required to perform emergency Street work requiring
relocation of Franchisee's facilities in the Streets, then Franchisee shall reimburse the
CITY for its reasonable costs associated with such relocation.
13.9. Franchisee shall not place facilities, equipment or fixtures 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 fixtures placed in any public Street shall 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.
13.10. Franchisee agrees to abide by the Minimum Standards Applicable to Public
Rights-of-Way adopted, or amended, by CITY. Franchisee shall furnish the CITY
Building and Engineering Divisions with engineering plans and apphcat, ion for plan
review, make any required corrections, obtain plan approvals, submit application for
permit and obtain a rights-of-way permit through a licensed engineering contractor,
furnish shop drawings signed and sealed by an engineer licensed 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 pubhc rights-of-way and provide as-built
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drawings signed and sealed by a professional land surveyor licensed in the State of
Florida. Franchisee shall not permit other users to occupy Franchisee's facilities in
CITY's rights-of-way without first receiving proof of CITY permits or other
authorizations having been issued to such other user. Provided, however, that
nothing in this Section shall be interpreted in a manner inconsistent with state or
federal law, and this Section shall be implemented with due regard for reasonable
confidentiality protections.
14.0 Restoration of Area. Franchisee 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 Franchisee fails to clean up and restore to CITY's satisfaction,
CITY may, within seventy-two (72) hours notice to Franchisee, clean up and restore
CITY's rights-of-way at Franchisee's sole expense. Franchisee will remit CITY's costs
for Clean up and restoration within thirty (30) days of CITY invoicing Franchisee.
15.0 Performance of Activities. Franchisee agrees to abide by the work schedule
requirements specified in the permit for work in CITY's rights-of-way except for
emergency work defined and authorized by the CITY Building Division.
16.0 Use of Joint Trench. Franchisee may allow CITY facilities to be co-located
within CITY's rights-of-way through the use of a joint trench during Franchisee's
construction project. Such joint trench projects shall be negotiated in good faith by
separate agreement between Franchisee and CITY and may be subject to other
municipal rights-of-way requirements.
17.0 Franchise Fee.
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17.1. In consideration of the privilege granted herein to use and occupy the
Streets to construct, install, and maintain its telecommunications system, Franchisee
shall pay to the CITY a franchise fee equal to one percent (1%) of its gross receipts on
recurring local service revenues as defined in Section 337.401, Florida Statutes.
17.2. Franchisee shall £fle annual statements with the CITY along with each
franchise fee payment. The annual statements shall be audited and reported on by
certified public accountant and certified as true and correct by a duly authorized
financial officer of Franchisee. Franchisee shall bear the cost of the preparation of
such statements.
17.3. The acceptance by the CITY of any Payment from Franchisee of the
franchise fee shall not constitute a release or an accord and satisfaction of any claim
the CITY may have against Franchisee for performance of any of its obhgations under
this Franchise Agreement, or local, state or federal law, including, without hmitation,
Franchisee's obligation to pay the proper franchise fee amount owed, subject, however,
to apphcable statute of limitations, if any.
17.4. Following the expiratiOn or the termination for any reason of its franchise,
Franchisee shall pay the franchise fee owed as of the date that its operations ceased
within ninety (90) calendar days of ceasing such operations. Such payment shall be
accompanied by a gross revenues audit report prepared by a certified public
accountant showing the revenues received by Franchisee since the end of the previous
fiscal year.
17.5. Franchisee 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
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franchise fee payments shall be in addition to any and all taxes of a general nature
and not applicable solely to telecommunications system operations within the CITY or
other fees or charges which Franchisee 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 obhgations of Franchisee; (iii) Franchisee shall not have or make
any claim for any deduction or other credit of all or any part of the amount of said
franchise fee payments from or against any of said CITY taxes or other fees or charges
which Franchisee is required to pay to the CITY, except as agreed herein or required
by law; (iv) Franchisee shall not apply nor seek to apply all or any part 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 obhgations of Franchisee; and (v) Franchisee shall not apply or seek to
apply all or any part 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 obhgations, each of
which shall be deemed to be separate and distinct obligations of Franchisee.
18.0 Right to Inspect Financial Records ~nd Facilities.
18.1. Franchisee shall maintain a complete set of books and records, including
plans, contracts, engineering, accounting, financial, and statistical records.
18.2. The CITY shah have the right to inspect and require financial audit, at
Franchisee's local office, and copy the books and records specified in subsection 18.1
hereof and such other records as may be required by the CITY 'to perform its
regulatory responsibilities here under. The CITY agrees to carry out any such
inspection during Franchisee's normal business hours and upon reasonable notice.
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'Access by the CITY to Franchisee's books and records shall not be denied on grounds
that such books and records contain proprietary or confidential information.
18.3. 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. Franchisee's books and records shall not constitute public
records, except to the extent required by state law, and such reasonable protection
agreed to with Franchisee. To the extent Franchisee considers any books or records
that it is required to produce to be confidential or otherwise protected from public
disclosure, Franchisee shall designate which documents it views as protected and
provide a written explanation to the CITY of the legal basis for Franchisee's claim of
protection.
19.0 Modification of Franchise. This Agreement shall not be modified unless
and until same is agreed to by both parties in writing.
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20.0 Transfer of Franchise.
20.1. FranchiSee shall not assign or transfer its franchise or any right, title or
interest in this Agreement 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 assignment to: (a) a
subsidiary, affiliate or parent company; or (b) any firm or 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
finds that the proposed assignee or transferee lacks the legal, financial or technical
qualifications to operate Franchisee's sYstem.
20.2. 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.
20.3. In the event of an unauthorized transfer in viOlation of this .Section, the
entire amount of the bond established pursuant to Section 11 hereof shall immediately
revert to the CITY, and Franchisee shall be Subject to all applicable sanctions set forth
in this Agreement.
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'21.2.
21.3.
default;
21.4.
21.0 Termination. This Agreement may be terminated by the CITY in the event of
the following occurrences:
21.1. In the event a pubhc right of way is closed, abandoned, vacated,
diScontinued, reconstructed, widened, or repaired by CITY. In this event, CITY shall
notify Franchisee in writing of the need to relocate its facilities and Franchisee shall
have a reasonable period to relocate same.
Franchisee is in default of its obligations under this Agreement and:
Franchisee has been given written notice of the nature and manner of such
Franchisee does not start to take action to correct such default within ten
(10) days after receiving such written notice; and
21.5. Franchisee fails thereafter to proceed diligently and promptly to remedy or
correct the default to the reasonable satisfaction of the non-defaulting party.
22.0 Abandonment and Removal
22.1. In the event that the use of any property of Franchisee within the City's
rights-of-way, or a portion thereof, is discontinued for a continuous period of twelve
(12) months, FranchiSee shall be deemed to have abandoned that property.
22.2. CITY, upon such terms as CITY may impose, may give Franchisee
permission to abandon, without removing, any System facility or equipment laid,
directly constructed, operated or maintained in, on, under or over the City's rights-of-
way. Unless such permission is granted or unless otherwise provided by CITY,
Franchisee shall remove all such facilities and equipment upon receipt of written
notice from CITY and shall restore any affected rights-of-way to substantially its
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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, Franchisee
shall refill, at its own expense, any excavation made by or on behalf of Franchisee and
shall leave all rights-of-way 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 rights-of-
way, streets, public ways, public 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 removal and until full compliance by Franchisee with the
terms and conditions of this Section.
22.3. Upon abandonment of any property in place, the Franchisee, if required by
the CITY, shall submit to CITY a bill of sale and/or other an instrument satisfactory
in form and content to the CITY, transferring to the CITY the ownership of the
property abandoned.
22.4. At the expiration of the term for which this 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 Franchisee to
commence removing, at its own expense, all above-ground portions of the
Telecommunications System from all CITY rights-of-way, streets and public ways
within a reasonable period of time, which shall not be less than one hundred eighty
(180) days.
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22.5. The Franchisee may, with the consent of the CITY, abandon any
underground Franchise property in place so long as it does not materially~interfere
with the use of the City's rights-of-way or streets in which such property is located or
with the use thereof by any public utility or other telecommunications or cable
company.
23.0 Notice. All notices required herein shall be given in writing and shall be sent
by United States mail, postage prepaid, return receipt requested, hand dehvery
evidenced by a delivery receipt, or by overnight 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:
CITY:
With Copy to:
City Manager
City of Boynton Beach
100 E. Boynton Beach Boulevard
P.O. Box 310
Boynton Beach, Florida 33425-0310
Josias, Goren, Cherof, Doody & Ezrol, P.A.
3099 East Commercial Boulevard, Suite 200
Fort Lauderdale, Florida 33308
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Franchisee:
With a copy to:
James C. Falvey, Esquire
e.spire Communications, Inc.
131 National Business Parkway
Suite 100
Annapolis Junction, Maryland 20701
Gerald L. Knight, Esq.
Holland & Knight LLP
One East Broward Boulevard, Suite 1300
Fort Lauderdale, Florida 33301
24.0 Miscellaneous.
25.0 Entire Agreement. This Agreement shall constitute the full and final
expression of intent of the parties, and no section, clause, condition, or privilege may
be modified, varied, altered, or added except by a written agreement executed by the
parties hereto with equal dignity.
26.0 Merger. This document incorporates and includes all prior negotiations,
correspondence, conversations, agreements, or understandings applicable to the
matters contained herein; and the 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.
27.0 Successors and Assigns. 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.
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28.0 Contract Administrator and Designated Representative. CITY's
Contract Administrator for this Agreement is the CITY's Director of Administrative
Services. Franchisee's Designated Representative for this Agreement is James C.
Falvey, Esq. In the administration of this Agreement, as contrasted with matters of
pohcy, all parties may rely upon the instructions or determinations made by the
respective Contract Administrator and the Designated Representative.
29.0 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.
30.0 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 Palm Beach County, Florida.
31.0 Compliance with Laws. Franchisee shall comply with all statutes, laws,
ordinance, rules, regulations, and lawful orders of any governmental entity or public
authority which may be applicable to the use of the premises by Franchisee.
32.0 Records. If the Florida Public Records Act is applicable to Franchisee,
Franchisee 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, Franchisee 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 Pubhc Records Law or for a
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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.
33.0 Third-Party Beneficiaries. Neither Franchisee 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.
34.0 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.
35.0 No Property Rights. This Agreement shall not be deemed a lease of any
CITY property for the use permitted hereunder granting Franchisee any property
rights or leasehold interest, but rather a license to use and occupy the respective
rights of way under the terms and conditions stated herein.
IN WITNESS OF THE FOREGOING, the parties have set their hands and
seals the day and year first written above.
Corporate Seal
American Communication Services
0fJacl~onville, Inc. ~d~/a e.spire
Title/ s~. v±¢e Pres±~n/t -
Dated: ~qust ~, 2000 ~
Regulatory Affairs
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A~ WITNESS my hand and Notary Seal.
Notary Public
My Commission expires: KATHLEEN ROBINSON
NOTARY PUBLIC STATE OF MARYLAND
My Commission Expires November 29, 2000
CITY
ATTEST:
CITY CLERK
CITY OF BOYNTON BEACH
BY:
GERALD BROENING, MAYOR
APPROVED AS TO FORM.
CITY ATTORNEY
FTL1 #482698 v4
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AS WITNESS my hand and Notary Seal.
Notary Public
My Commission expires:
?'" ...... ~{~",. ~'o ~I~__ITY OF BOYNTON BEACH
ATTEST: ~ .... _~ .,.: ~ ~/~ ,(~,~//~
~~~~~' ~:';::~7,:',~',~ OE~LD BROENINO, MAYOR
CI~'CLERK ~
APPROVED AS TO FORM.
CITY ATTORNEY
H: \ 2000 \000063 \e-spireagmtcln071200.doc