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HomeMy WebLinkAboutR-2000-069 RESOLUTION NO. 2000-069 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF DANIA BEACH, FLORIDA, AUTHORIZING THE PROPER CITY OFFICIALS TO EXECUTE AN INTERIM LICENSE AGREEMENT BETWEEN CONCERT GLOBAL NETWORKS USA, L.L.C. AND TI4E CITY FOR THE INSTALLATION AND MAINTENANCE OF UNDERGROUND COMMUNICATION CONDUITS AND CABLE FACILITIES; PROVIDING FOR CONFLICTS; FURTHER, PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, an international consortium of more than 40 telecommunication companies has undertaken to build a fiber optic cable system to improve telephone and Internet connections between the United States and Europe, Latin America and the Caribbean which requires the installation of underground communication conduits and cable facilities with municipal rights-of-way in South Florida; and WHEREAS, City owns, operates and controls real property, rights-of-way, and other improvements (individually and collective referred to as "rights-of-way") located within and throughout the City's municipal boundaries; and WHEREAS, the City's Code of Ordinances is currently being revised to account for the increase in requests for use of the City's rights-of-way originating from the deregulation of telecommunications and utilities providers; and WHEREAS, City is willing to allow providers of services utilizing rights-of-way for their services to use such rights-of-way in order that new technology may be made available to its residents and businesses, provided that such use will be subject to any future ordinances of the City governing the use of rights-of-way; and WHEREAS, City desires to permit Concert Global Networks USA, L.L.C, • ("Global") and Global desires to receive from City, the ability to use certain portions of RESOLUTION NO. 2000-069 the rights-of-way for the installation and operation of subterranean cable communication facilities as described below, subject to execution of an Interim License Agreement pertaining to use of rights-of-way; WHEREAS, Global acknowledges that following the expiration of the Agreement, an ordinance enacted by City shall govern the relationship between the parties with respect to use of City's rights-of-way; and WHEREAS, the parties desire to set forth in this Agreement the terms and conditions of their relationship for a period of one (1) year; and WHEREAS, the City Manager and the Director of Public Utilities recommend that the City Commission authorize the appropriate City officials to execute the attached temporary agreement with Global; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF DANIA BEACH, FLORIDA: Section 1: That the City Commission approves and authorizes the execution, by the appropriate City officials of the attached Interim License Agreement with Concert Global Networks USA, L.L.C. embodying the terms and conditions approved by the City Commission this date, in a form acceptable to the City Manager and approved as to form and legality by the City Attorney; provided, however, that the City Manager and City Attorney are authorized to make minor revisions as are deemed necessary in the best interest of the City. Section 2: That all resolutions or parts of resolutions in conflict are repealed to the extent of such conflict. 2 RESOLUTION NO. 2000-069 Section 3: That this resolution shall be in force and take effect immediately • upon its passage and adoption. PASSED AND ADOPTED this 9TH day of MAY, 2000. f-9 C.K. CELY MAYOR - COMMISSIONER ATTEST: ROLL CALL: MAYOR McELYEA - YES VICE-MAYOR BERTINO- YES 'SH ERYIfdHAPmAW COMMISSIONER CALI - YES ACTING CITY CLERK COMMISSIONER ETLING - YES COMMISSIONER MIKES- YES APPROVED AS TO FORJM AND CORRECTNESS: BY: TH MAt J. ANSB O CITY ATTORNEY F:\566001\Telecommunications\AT&T\RESunderground cable.doc 3 RESOLUTION NO. 2000-069 CONCERT GLOBAL NETWORKS • USA, L.L.C. INTERIM RIGHTS-OF-WAY USE AGREEMENT THIS AGREEMENT, made and entered into this_ day of , 2000, by and between CONCERT GLOBAL NETWORKS USA, L.L.C., a corporation (the "Provider"), and the City of Dania Beach, Florida (the "City"), (the Provider and the City being collectively referred to herein as the "Parties"). WHEREAS, the Provider has requested the City to authorize the use of the City's Rights-of-Way to construct and maintain ducts, conduits and other communications infrastructure and facilities for the installation of fiber optic cables and associated equipment in order to provide international and other Telecommunications Services; and WHEREAS, the City is currently considering the development of a Telecommunications Ordinance and a Right-of Way Construction and Administration Ordinance to govern the use of its Rights-of-Way by Telecommunications providers and others; and WHEREAS, the City agrees to grant the Provider the non-exclusive right to use the City Rights-of-Way under the jurisdiction of the City, subject to all applicable construction permitting requirements; and • WHEREAS, the Provider has agreed to accept the use of the Rights-of-Way in accordance with the terms and conditions of this Agreement and; NOW, THEREFORE, in consideration of the mutual promises and covenants herein contained, the Parties mutually agree as follows: ARTICLE 1. DEFINED TERMS For the purpose of this Agreement, the following terms, phrases, words and their derivations shall have the meaning given herein. When not inconsistent with the context, words used in the present tense include the future tense, words in the plural number include the singular number, and words in the singular number include the plural number. The words "shall" and "will" are mandatory and"may" is permissive. Words not defined shall be given their common and ordinary meaning. 1.1 "Interexchange Toll Telephone Service" means: international, interstate and intrastate interexchange telecommunications service for which there is a toll charge which varies in amount with the distance and elapsed transmission time of each individual communication 1.2 "Local Telephone Service" means: a. Access to a local telephone system, and the privilege of telephonic- quality communication with substantially all persons having telephone or radio telephone stations constituting a part of such local telephone system; or b. Any facility or service provided in connection with a service described in paragraph (a). C. The term "Local Telephone Service" does not include any service which is an Interexchange Toll Telephone Service; private communication service; cellular mobile telephone or telecommunication service; specialized mobile radio, or pagers and paging, service, including but not limited to "beepers" and any other form of mobile and portable one- way or two-way communication; or teletypewriter service. 1.5 "Major Construction" means: Excavation, installation, removal, or maintenance of equipment in the rights-of- way, provided, however, that major construction shall not mean installation, repair, rehabilitation or maintenance of equipment that does not involve excavation or other physical disruption of the rights-of-way, or other work in the rights-of-way that the City considers, in its sole discretion, to be minor • construction that does not impact the physical integrity of the right-of-way or its use by the traveling public. 1.6 "Telecommunication Service" means: a. Local Telephone Service, toll telephone service, telegram or telegraph service, teletypewriter service, or private communication service; or b. Cellular mobile telephone or telecommunication service; or specialized mobile radio, and pagers and paging, service, including but not limited to "beepers" and any other form of mobile and portable one-way or two-way communication; but does not include services or equipment incidental to telecommunication services enumerated in this paragraph such as maintenance of customer premises equipment, whether owned by the customer or not, or equipment sales or rental for which charges are separately stated, itemized, or described on the bill, invoice, or other tangible evidence of the provision of such service. C. The term "Telecommunication Service" does not include any Internet access service, electronic mail service, electronic bulletin board service, or similar on-line computer service. 2 ARTICLE 2. AUTHORITY FOR USE OF RIGHTS-OF-WAY AND • SCOPE OF AGREEMENT 2.1 The Provider intends to design, engineer, construct, acquire, lease, or caused to be constructed, facilities and acquired appropriate interests in real property or other rights within the City, as may be required to provide and maintain Telecommunications Services. The Provider's maintenance obligations shall be performed in accordance with industry standards. The Provider requests a grant from the City to use the City Rights-of-Way subject to individual construction permits, that shall detail the proposed route diagram, as well as a description of all facilities and appliances, and location and construction requirements. 2.2 The City hereby agrees to provide access and use of its Rights-of Way to the Provider for the Construction, installation, and maintenance of its telecommunications transmission facilities within the City limits subject to the grant of applicable construction permits. Under this Agreement, the Provider may erect, install, construct, repair, replace, relocate, reconstruct, remove, and retain in, on, under, upon, across and along the Rights-of-Way within the City, as located and approved by the City, as set forth in this Agreement, such lines, cable, conductors, ducts, conduits, vaults, manholes, appliances, pedestals, attachments, and other property and equipment as are necessary and appropriate to the operation of the facilities. ® 2.3 The Provider shall construct, operate and maintain its telecommunications facilities in accordance with all applicable federal, state and local laws, including all permit requirements, and fee payments, and all other City codes and ordinances in effect as of the date of this Agreement or hereinafter adopted. The grant of this Agreement does not in anyway impact the continuing authority of the City through the proper exercise of its police powers to adopt and enforce ordinances necessary to provide for the health, safety and welfare of the public. The City makes no express or implied representation or warranty regarding its rights to authorize the installation or construction of facilities on any particular segment of Rights-of-Way. The burden and responsibility for making all such determinations in advance of construction or installation shall be entirely upon the Provider. 2.4 The Provider understands that the City is currently considering the development of a Telecommunications Ordinance and Rights-of-Way Construction and Management Ordinance regulating the use of its Rights-of-Way, and the Provider specifically agrees to be bound by the terms of any such ordinances adopted, to the extent such ordinances are consistent with state and federal law. Provider does not waive the right to challenge any provisions of any future applicable ordinances which are inconsistent with state or federal law. 3 2.5 The Provider shall construct and maintain its telecommunications facilities so as not to unreasonably interfere with other users of the Rights-of-Way. The Provider shall make use of existing poles and other facilities available to the Provider to the greatest extent possible. All such attachments shall only be made with the prior written permission of the owner of the poles and conduits to be utilized. Except where emergencies make such action impractical, the Provider shall use reasonable efforts to notify all occupants of adjacent or abutting properties affected by the proposed work prior to commencement of such work. All construction and maintenance by Provider or its subcontractors shall be performed in accordance with industry standards. 2.6 At least thirty (30) days before the beginning of any installation, removal or relocation of its facilities, the Provider shall submit detailed plans of the proposed action to the City Civil Engineer. Said plans shall be sealed by a Florida professional engineer or other engineer as defined by Section 471.003(2)(d), Florida Statues, and will depict the aboveground, at grade or underground installation of fiber optic cable and associated equipment to be used by Provider for the provision of Telecommunications Services permitted by the certificate granted to Provider by the Florida Public Service Commission. The City Engineer shall, within thirty (30) days of receipt of such plans, either approve the plans and grant a Permit to utilize the Rights-of-Way or inform the Provider of the reasons for disapproval. The Provider shall designate a responsible contact person with ® whom officials of the Department of Public Works can communicate with on all matters relating to facilities installation and maintenance. 2.7 Prior to any excavation or major construction within the Rights-of-Way, the Provider shall obtain a permit and perform such work in accordance with applicable provisions of the City Code, and any subsequent ordinances or regulations that may be adopted by the City regarding excavation work. 2.8 Construction and Removal Bond a. Prior to commencing any excavation or construction work within the City's Rights-of-Way the Provider shall post a construction bond with the City in an amount equal to one hundred and fifty percent (150%) of the anticipated constructions costs, or such other amount approved by the City Manager, in order to guarantee the timeliness and quality of any construction, repair and restoration work. The bond shall be required to remain in effect for twelve (12) months after the completion of the construction activity. In lieu of such a bond the Provider may provide proof of self-insuring status that demonstrates adequate financial resources to defend and cover claims related to the construction. • b. Prior to commencing any excavation or construction work within the City's Rights-of-Way and through 120 days after removal of its facilities 4 and equipment, Provider is required deposit with the City and maintain a removal bond in an amount approved by the City Manager, or shall provide proof of self-insuring status that demonstrates adequate financial resources to insure removal of facilities. 2.9 The Provider shall at all times comply with the requirements of the State's one- call notification system, Chapter 556 of the Florida Statutes. 2.10 Construction and Relocation Costs a. The Provider shall be responsible for all costs borne by the City that are directly associated with its installation, maintenance, repair and replacement of its Telecommunications facilities within the Rights-of- Way, that are not otherwise recovered through the usage fees. All such costs shall be itemized and the City's books and records related to these costs shall be made available upon request to the Provider. b. As provided by and in accordance with the requirements of Section 337.403, Florida Statues, Provider agrees to relocate its facilities to another reasonable location, or to deepen in place, upon receipt of the City's written request in accordance with Section 337.403, Florida Statutes. • C. If the Provider agrees to adapt or conform its cable and conduit, or in any way or manner to alter, relocate or change its cable and conduit to enable any other entity or person, except for the City as provided for in Paragraph 2.10(a) of this Agreement, to use, or to use with greater convenience, any public street, alley or right-of-way, Provider shall not be required to make any changes until such other entity or person shall have undertaken, with solvent bond satisfactory to City and Provider, to reimburse Provider for any loss or expense which will be caused by, or arise out of such change, alteration or relocation of Provider's' cable and conduit; provided, however, that the City shall never be liable for such reimbursement. ARTICLE 3. TERM/TERMINATION The Term of this Agreement shall commence on the date of acceptance of this Agreement by the Provider, as defined in Article 6 of this Agreement and shall end ten (10) years thereafter, unless extended on a month-by-month basis at the request of the City. The above statement notwithstanding, it is the intent of the Parties to renegotiate this Agreement in good faith should the City adopt a Telecommunications Ordinance and Right-of Way Construction and Administration Ordinance. 5 ARTICLE 4. LEASE OF PROVIDER'S FACILITIES 4.1 The Provider shall not allow any person to utilize the Provider's ducts, conduits or other facilities to install communications lines, cables or other equipment within the City's Rights-of-Way unless such person has first obtained a separate use agreement from the City. 4.2 Provider agrees to notify the City before allowing any person to utilize the Provider's ducts, conduits or other facilities to install communications lines, cables or other property within the City's Rights-of-Way. Failure to give such notice shall constitute grounds for revocation of this Agreement and shall render Provider jointly and severally liable to the City for all fees, damages, penalties or other obligations that the other person may owe to the City. ARTICLE 5. TRANSFER OF OWNERSHIP The Provider shall not assign or transfer this Agreement without the written consent of the City, which consent shall not be unreasonably withheld, except that upon prior written notice to the City, Provider may make such assignment ® to: (a) a subsidiary, affiliate or parent company; or (b) any firm or corporation which Provider 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. ARTICLE 6. COMPENSATION 6.1 Application Fee The Provider shall pay the City $5,000 at the time it files its application with the City in the Form of attached Exhibit B. Such fee is a one time fee related to processing, reviewing and negotiating a use agreement and as such shall not be credited towards the applicable use fee. 6.2 Use Fee Commencing on the effective date of this Agreement and continuing throughout its Term, the Provider shall pay a quarterly fee (on the City's fiscal year basis) equal to: a. Fifty cents ($.50) per linear foot of any cable, fiber optic, or other pathway that makes physical use of the City's Rights-of-Way. By 6 way of illustration, and not limitation, such linear foot fee shall be irequired to the extent the Provider is engaged in Interexchange Toll Service, or is engaged in the provision of any other Telecommunications Services except Local Telephone Service; or b. If at any time during the term of this Agreement the Provider begins to receive recurring facilities-based Local Telecommunications Services Revenues for services originating or terminating within the City's corporate limits, Provider shall pay one percent(1%) of its quarterly Gross Receipts on all such revenues. "Local Telecommunications Service Revenues" are defined as all revenues received by the Provider from its customers for providing the local transport of voice, data and video signals within the municipal limits of the City as provided in this Agreement, including but not limited to, those revenues derived from Telecommunications Services listed in Section 203.012(2), Florida Statues, as it may be amended. C. The consideration to be paid by the Provider to the City under this Section is compensation for the use by the Provider of the City's right-of-way and is not a tax, as may be allowed by the Florida Constitution, the general or special laws of the State of Florida. The Provider shall at all times continue to be subject to public service taxes (Section 166.231, Florida Statues), ad valorem taxes (Section 166.211, Florida Statues), and such other taxes, charges or fees as may be lawfully authorized by the Florida Constitution, the general or special laws of the State of Florida and the provisions of the Municipal Home Rule Powers Act (Chapter 166, Florida Statues). 6.3 The Provider shall send all payments payable hereunder, to: Dania Beach , Florida 6.4 Payment shall be made within thirty (30) business days after the close of each fiscal quarter. Acceptance of any fee payment shall not be deemed a waiver or release of any claims the City may have for additional sums, nor be construed as an accord that the amount paid is correct. 6.5 If any quarterly payment is not received by the City within such period, the Provider shall pay interest on any such unpaid portion thereof at the maximum allowable rate under applicable law from the first day after the 7 payment period of thirty (30) business days until paid to the City, and the Provider shall reimburse the City for the actual and reasonable out-of-pocket costs of the City associated with collecting any sums of money the Provider is required to remit to the City pursuant to this Permit. ARTICLE 7. ACCEPTANCE This Agreement shall be accepted by the Provider within thirty (30) days of approval by the City, such approval shall be in writing and accompanied by delivery of all documents including any insurance certificates, applications, and evidence of performance of all other requirements set forth in this Agreement. ARTICLE 8. CONFIDENTIAL INFORMATION Provider recognizes that the City must comply with the provisions of Chapter 119, Florida Statutes. The City acknowledges that certain records provided by the Provider may be exempt from the disclosure requirement of Chapter 119, Florida Statutes and may be required to remain confidential. These documents include, but are not necessarily limited to, records included within the provisions of Section 119.07(3)(r) and 166.23l(9)(c), Florida statutes. ARTICLE 9. INDEMNIFICATION • 9.1 The Provider shall indemnify, hold harmless, and defend the City, its officers, boards, commissions, agents, and employees from and against any and all lawsuits, claims, causes of action, liability, demands, damages, disability, losses, and expenses, including reasonable attorneys' fees, resulting or in any manner arising from the action or inaction of the Provider in constructing, operating, maintaining, repairing, or removing any of its facilities in the City, or in exercising or failing to exercise any right or privilege granted by this Agreement except where such claim or loss arises from the negligence or willful misconduct of the City, its officers, agents, boards, commissions or subcontractors. 9.2 The City shall promptly notify the Provider of any claims subject to indemnification and shall cooperate with all reasonable requests by the Provider for information, documents, testimony, or other assistance appropriate to a resolution of such claims, the Provider shall have full responsibility for and control of any action or undertaking directed at the resolution of such claims. 9.3 Company agrees to waive any claims against the City for damages arising from any unintentional breach of the underground conduit or fiber optic cable system, provided that prior to any construction or excavation project undertaken by the City or any of its contractors, the City, or its 8 representatives, on each such occasion contacts Company via a telephone call to the 24-hour One Call System. In the event such call is not made and damage to the conduit or fiber or both occurs, the City's liability shall be limited to the cost of repair to the conduit and fiber and shall explicitly exclude any consequential business damages. Company does not waive any claims against the City for damages arising from any act or omission, or breach of the underground conduit of fiber, constituting negligence, gross negligence or willful misconduct by the City, or its employees, or any of its contractors, agents or representatives. ARTICLE 10. INSURANCE 10.1 During the term of this Agreement, the Provider shall obtain and maintain at the Provider's sole expense, with financially reputable insurers which are licensed to do business in all jurisdictions where any work is performed, naming the City as additional insured, not less than the following insurance: (a) Workers' compensation as provided for under any worker's compensation or similar law in the jurisdiction where any work is performed with an employer's liability limit of not less than $500,000 per accident. • (b) Commercial general liability, including coverage for contractual liability and products completed operations liability, with a limit of not less than One Million Dollars ($1,000,000) combined single limit per occurrence for bodily injury, personal injury, and property damage liability,naming the City as an additional insured. (c) "All risk" property insurance covering not less than the full replacement cost of the City's personal property while on a Provider job site. 10.2 Certificate of Insurance. The Provider shall, as a material condition of this Agreement, prior of the commencement of any work and prior to any renewal thereof, deliver to the City a certificate of insurance, satisfactory in form and content to the City, evidencing that the above insurance is in force and will not be cancelled or materially altered without first giving the City thirty (30) days prior written notice. 10.3 Nothing contained in this Agreement shall limit the Provider's liability to the City to the limits of insurance certified or carried. 9 ARTICLE 11. 'TAXES The Provider shall be fully responsible for the payment of all ad valorem, property, use, and other taxes. ARTICLE 12. MISCELLANEOUS 12.1 This Agreement, together with all Exhibits, shall constitute the entire Agreement and no negotiations or discussions prior to execution shall be of any effect. 12.2 The invalidity in whole or in part of any provision shall not affect the validity of any other provision. 12.3 The right and remedies of the Parties shall be cumulative and in addition to any other rights and remedies provided by law or equity. A waiver of a breach of any provision thereof shall not constitute a waiver of any other breach. The laws of the State of Florida shall govern this Agreement. 12.4 Notices shall be in writing, mailed certified with return receipt requested, effective upon receipt and sent to: ® The Provider: Attn: The City: The City of Dania Beach , Florida or to replacement addresses that may be later designed in writing. IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the day and year below written, but effective as of the day and year first set forth above. 10 THE CITY OF DANIA BEACH, FLORIDA CONCERT GLOBAL NETWORKS USA, L.L.C. By: By: Name: Name: Title: Title: Date: Date: STATE OF ) ss. COUNTY OF ) On this day of 2000, executed the foregoing instrument. IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my official seal the day and year aforesaid. Notary Public • STATE OF ) ss. COUNTY OF ) On this day of 2000, executed the foregoing instrument. IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my official seal the day and year aforesaid. Notary Public 11 INTEROFFICE MEMORANDUM CITY OF DANIA BEACH 7W TO: Mayor and City Commissioners cc: Michael Smith, City Manager Bud Palm, Utilities/Public Works Director FROM: Thomas Ansbro, City Attorney RE: Proposed Interim License Agreement between City and Concert Global Networks USA, L.L.C.; Right-of-Way Agreement for installation and maintenance of underground communication conduits DATE: May 5, 2000 • Attached is a proposed draft of an Interim License Agreement between the City and a company known as Concert Global Networks USA, L.L.C. This company is, in essence, a successor to AT&T, with respect to the installation and maintenance of certain cable lines which are being and have been installed in South Florida municipalities in connection with a subaqueous landing of fiber optic cable from Europe, Latin America and the Caribbean on Hollywood beach. have been in contact with the attorney for the company and we are identifying with precision the particular municipal rights-of-way in which four 4" diameter cable conduit lines have been installed within the City with the past several weeks. It is my understanding that no more than one-mile of local streets are involved (an area north of East Dania Beach Boulevard which zig zags towards North Federal Highway on local City streets). The operative Florida Statutes specifies that no more than a certain monetary amount can be charged for this type of installation (Chapter 337, F.S.). We are negotiating with the company as to the precise amount that can be charged per linear foot per cable per quarter of a year, and it is anticipated to be between $0.25 to $0.35 cents. I have also discussed the requirement that the agreement must be retroactive from the time in which the cable work installation was completed (although again, it is believed to be only a matter of several weeks). In addition, we are awaiting a response to our request for an in-kind contribution of a "T-1" communications line. In addition, we will be seeking a payment of $5,000.00 application fee in connection with this agreement. At this time, we request Commission authority to enter into the agreement, subject to negotiating the highest allowable charges and in-kind services that we can obtain. i