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HomeMy WebLinkAboutR-2000-149 RESOLUTION NO. 2000-149 A RESOLUTION OF THE CITY OF DANIA BEACH, FLORIDA, APPROVING AN INTERIM RIGHTS-OF-WAY USER AGREEMENT BETWEEN THE CITY OF DANIA BEACH AND FPL FIBERNET, L.L.C. FOR 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; PROVIDING FOR CONFLICTS; FURTHER, PROVIDING FOR AN EFFECTIVE DATE. BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF DANIA BEACH, FLORIDA: Section 1. That the agreement between the City of Dania Beach and FPL Fibernet, L.L.C., which is attached to this Resolution as Exhibit "A", allowing the use of the Rights of Way in the City of Dania Beach for providing telecommunication services, is hereby accepted and the appropriate city officials are hereby authorized to execute same. Section 2. That the City Manager and City Attorney are authorized to make minor revisions to such Interim Rights-of-Way User Agreement as are deemed necessary and proper for the best interests of the City. Section 3. That all resolutions or parts of resolutions in conflict with this t; resolution are hereby repealed to the extent of such conflict. Section 4. That this resolution shall be in force and take effect immediately upon its passage and adoption. PASSED AND ADOPTED THIS 26th DAY OF SEPTEMBER, 2000. GARES20WRESSAMPLE 10/4/2000 1 RESOLUTION NO. 2000-149 • G m� COMMISSIONER ATTEST: / ROLL CALL: MAYOR BERTINO - YES VICE-MAYOR MCELYEA- YES SHERYL CHAPMAN COMMISSIONER CALI - YES ACTING CITY CLERK COMMISSIONER ETLING - YES COMMISSIONER MIKES- YES APPROVED AS TO FORM AND CORRECTNESS: BY: 2 N AAI�j THOM S J. ANI�BRO CITY ATTORNEY GARES200WRESSAMPLE 10/4/2000 2 RESOLUTION NO. 2000-149 Weiss Serota.Helfman Pastoriza & Guedes P.A. M A�mo Via Federal Express To: Charlene Johnson, Deputy City Clerk From: Gary Resnick, Office of the City Attorney Date: September 27, 2000 Re: Interim Rights-of-Way Use Agreement with FPL Fibernet Attached please find a Memorandum for the Mayor and Commission, as well as the revised Agreement with FPL Fibernet,LLC, as passed by the Commission on September 26, 2000. I would appreciate your distributing this. After the appropriate City Official executes the Agreement,please return the signed original to our office. We will then send the Agreement to FPL Fibernet for its signature. If you have any questions about this Agreement or would rather have it sent to you via email,please do not hesitate to contact me. Thank you again for your assistance. 1 ® Weiss S`erota Helfman Pastoriza & Guedes, P.A. MA�MMO To: Mayor, City Commission, and City Manager From: Gary Resnick, Office of the City Attorney Date: September 27, 2000 Re: Interim Rights-of-Way Use Agreement with FPL Fibernet Attached please find the revised Agreement with FPL Fibernet, LLC, as passed by the Commission on September 26, 2000. The revised Agreement incorporates the changes the Commission approved at the meeting. The changes are as follows: o Page 4—Section 2.9 was revised to provide that"above ground work shall be done only • with the prior written permission of the City Commission...." ® Page 5 —Section 3.2 was revised to insert the word"Provider"before the word"shall" in the second line. o Page 10—In Article 8, section"7.1"was corrected to provide"8.L" After the appropriate City Official executes the Agreement,please return the signed original to our office. We will then send the Agreement to FPL Fibernet for its signature. If you have any questions about this Agreement or about telecommunications generally, please do not hesitate to contact us. Cc: Thomas Ansbro, City Attorney Charlene Johnson, Deputy City Clerk 1 • FPL FIBERNET, L.L.C. INTERIM RIGHTS-OF-WAY USE AGREEMENT THIS AGREEMENT made and entered into this 26 day of September, 2000, by and between FPL FIBERNET, L.L.C. (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 that would be capable of providing 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 "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. 1.2 "Construction" means: Excavation, installation, removal, repair or maintenance of equipment in the rights-of-way. 1.3 "Telecommunication Service" means: a. Local Telephone Service, toll telephone service, telegram or telegraph service, teletypewriter service, or private communication service; or b. The term "Telecommunication Service" does not include any Internet access service, electronic mail service, electronic bulletin board service, or similar on-line computer service, nor cable television, Open Video Service or other audio-video transmission or cable radio or similar service. ARTICLE 2. AUTHORITY FOR USE OF RIGHTS-OF-WAY AND SCOPE OF AGREEMENT 2.1 The City grants the Provider permission to design, engineer, construct, acquire, lease, or cause to be constructed, facilities on, over, within, above or below City- owned rights-of-way within the City. The Provider's maintenance obligations shall be performed in accordance with industry standards and all applicable codes and laws. The Provider may place such facilities in the City Rights-of-Way subject to individual construction permits. The Provider shall detail the proposed route diagram, as well as a description of all facilities and appliances, the time period for performing construction and work in the Rights-of-Way, specific location and construction requirements, subject to the City's permitting approval and other conditions for construction and work in the Rights-of-Way. 2.2 The City grants access and use of its Rights-of-Way to the Provider for the construction, installation, and maintenance of its 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 2 • 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 and use the City's Rights-of-Way 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. 2.5 The Provider shall construct and maintain its telecommunications facilities so as not to interfere unreasonably 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 installed by 3 Provider that will be capable for the provision of Telecommunications Services as 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 or 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 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 Provider hereby agrees that the installation of the equipment, fiber optic conduits and cables and telecommunication facilities related to Provider's services shall be installed at the locations/routes as specifically set forth in the plans submitted to the City's Engineer. All utilities shall be placed underground and all underground construction shall be done in accordance with the standards and policies approved by the City Engineer and Director of Public Works, which includes but is not limited to the utilization of trenchless technology methods and "open cut" construction methods as well as the requirements set forth the submitted and approved plans. 2.9 Above ground installation shall be done only with the prior written permission of the City Commission and of the owner of the poles and cables to be utilized, if any, a copy of which shall accompany the sealed plans to be submitted to the City Engineer or his designee for approval. Provider shall endeavor to install all equipment and telecommunication facilities underground, unless prevented by available technology or the physical characteristics of the location. 2.10. Provider shall provide the City Engineer or his designee with as-built plans in the form requested upon completion of all construction work in the City's right-of- way. 2.11 Tree Trimming. Provider shall have the authority to trim trees upon and overhanging streets, alleys, sidewalks, driveways and public places of the City so as to prevent the branches of such trees from coming in contact with the wires and cables of Provider or otherwise interfering with Provider's access or use of its facilities. All tree trimming shall be conducted in accordance with any and all applicable ordinances, laws, regulations, or statutes and acceptable local horticultural practices. ® 4 . 2.12 The Provider shall at all times comply with the requirements of the State's one- call notification system, Chapter 556 of the Florida Statutes. 2.13 Use of Joint Trench. PROVIDER may allow City facilities to be co-located within City's rights-of-way through the use of a joint trench during Provider's construction project. Such joint trench projects shall be negotiated in good faith by separate agreement between Provider and City and may be subjected to other municipal rights-of-way requirements. 2.14 Coordination with other Utilities: The City will provide any information it may have regarding existing or proposed installations. The Provider will be required to demonstrate why it cannot utilize existing conduits or cables that are available or why it cannot install its conduit as part of a joint effort with other proposed installations. Article 3. Construction and Performance Security Fund and Costs 3.1 Prior to commencing any excavation or construction work within the City's Rights-of-Way the Provider shall post a construction bond or cash deposit 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. The bond shall be issued by a surety authorized to do business in the State of Florida and in a form substantially similar to the public construction bond set forth in § 255.05, Florida Statutes. In the event the Provider fails to complete its work in a safe, timely and competent manner in accordance with the provisions of the permit, within seven days of City's notice to the Provider of such failure or as required by applicable law, there shall be recoverable, jointly and severably from the surety and principal of the Bond, any damages or loss suffered by the City as a result including the full cost of removal of the facilities and restoration of the rights of way to their condition prior to Provider's construction. r 3.2 At the time of Provider's acceptance of the terms and conditions of this Agreement, the Provider shall file with the City Clerk, after approval by the City, a performance security fund in the form of an annual bond or cash deposit in the minimum sum of Twenty-Five Thousand Dollars ($25,000.00) having as a surety a company qualified to do business in the State of Florida, and acceptable to the City by and through its telecommunications counsel. The security fund shall be conditioned on the full and faithful performance by the Provider of all requirements, duties and obligations imposed upon Provider by the provisions of this Agreement. The security fund shall be furnished annually and shall provide 5 a continuing guarantee of Provider's full and faithful performance at all times throughout the effective term of this Agreement. In the event Provider fails to cure its default in performance of any requirements, duties and obligations imposed upon Provider by the provisions of this Agreement, there shall be recoverable, jointly and severally from the principal and surety of the bond, any damages or loss suffered by the City as a result, including the full amount of any compensation, indemnification or cost of removal or abandonment of any property of the Provider, plus a reasonable allowance for attorneys' fees, up to the full amount of the bond. In lieu of the bond or cash deposit required by this Section, the City may in its reasonable discretion accept a corporate guarantee of the Provider or its parent company, if the Provider is a publicly traded company and maintains an insurance rating of no less than A-. 3.3 Construction and Relocation Costs a. The Provider shall be responsible for all costs and fees incurred by the City that are directly associated with its installation, maintenance, repair and replacement of its facilities within the Rights-of-Way, that are not otherwise recovered through the usage fees. Such costs and fees shall include, but are not limited to permit fees and engineering costs. 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. 6 ARTICLE 4. TERM/TERMINATION 4.1 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 a superseding 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 Provider 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 and shall comply with all other lawful provisions of the City's ordinance. Following such termination of this Agreement, Provider 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 and all lawful provisions of the City's ordinance; or C. 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, Provider shall have one hundred and twenty (120) days to register in accordance with said section and the provisions of this Agreement shall terminate, except as set forth in this paragraph and in paragraph 11.7 of this Agreement. Provider shall be entitled to continue to occupy the right-of-way subject to compliance with the one hundred twenty (120) day registration requirement and subject to compliance with the City's lawful regulations regarding construction within the public rights-of-way, in the absence of other regulations; shall be deemed to be those matters set forth in this Agreement; 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 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 6 of this Agreement, then Section 6 shall no longer be effective. e. Notwithstanding anything in this Section to the contrary, Franchisee hereby acknowledges the City's authority to impose the franchise fee required in Section 6 hereof, and the operation of any termination provision set forth hereinabove shall not affect City's ability to cause revenues generated herefrom by the imposition of such franchise fee to be included in the calculation of either revenue streams or tax rates as may be required or permitted by applicable law enacted as SB 1338 in the 2000 Legislative Session. 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 five (5) years thereafter, unless extended at the request of either party. 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 Rights-of-Way Construction and Administration Ordinance. ARTICLE 5. LEASE OF PROVIDER'S FACILITIES 5.1 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. 5.2 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 6. TRANSFER OF OWNERSHIP 6.1 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. ARTICLE 7. COMPENSATION 7.1 Application Fee The Provider shall pay the City $5,000 at the time it files its application with the City. Such fee is a one time fee related to processing, reviewing 8 and negotiating a use agreement and as such shall not be credited towards the applicable use fee or other fees and costs. 7.2 Use Fee Commencing on the effective date of this Agreement and continuing throughout its Term, the Provider shall pay an annual fee (on the City's fiscal year basis) equal to: a. Fifty cents ($.50) per linear foot of any cable, fiber optic, or other pathway that makes physical use of the City's Rights-of-Way. By way of illustration, and not limitation, such linear foot fee shall be required 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 on a quarterly basis 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). 7.3 The Provider shall send all payments payable hereunder, to: Michael W. Smith, City Manager City of Dania Beach 9 100 W. Dania Beach Boulevard Dania Beach, Florida 33004 7.4 Payment shall be made within thirty (30) business days after the close of each fiscal quarter or year, as appropriate. 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. 7.5 If any quarterly or annual 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 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 8. ACCEPTANCE 8.1 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 9. CONFIDENTIAL INFORMATION 9.1 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 166.231(9)(c), Florida Statutes. ARTICLE 10. INDEMNIFICATION 10.1 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 10 • 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. 10.2 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. 10.3 Provider 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 representatives, on each such occasion contacts Provider 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. Provider does not waive any claims against the City for damages arising out of the City's gross negligence or willful misconduct by the City, or its employees, contractors, . agents, or representatives. ARTICLE 11. INSURANCE 11.1 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 Two Million Dollars ($2,000,000) combined single limit per occurrence for bodily injury, personal injury, and property damage liability, naming the City as an additional insured. 11 ® (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. 11.2 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. 11.3 Nothing contained in this Agreement shall limit the Provider's liability to the City to the limits of insurance certified or carried. 11.4 The Provider and the City agree that the Provider may self-insure its obligations under this Agreement. The Provider shall provide the City within thirty (30) days written notice prior to cancellation, revocation, non-renewal or material change in such self-insurance. The City shall be named as an additional insured. 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: FPL Fibernet, LLC , 9250 W. Flagler Street Miami, Florida 33174 12 ® Attn: Sol. Stamm, Controller The City: Honorable Charles K. McElyea, Mayor City of Dania Beach 100 West Dania Beach Boulevard Dania Beach, Florida 33004 With a Copy to: Michael W. Smith, City Manager City of Dania Beach 100 West Dania Beach Boulevard Dania Beach, Florida 33004 and Thomas Ansbro, City Attorney City of Dania Beach 100 West Dania Beach Boulevard Dania Beach, Florida 33004 or to replacement addresses that may be later designated in writing. REMAINDER OF PAGE LEFT BLANK INTENTIONALLY 13 • 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. CITY OF DANIA BEACH i By: C'K. cElyea, a or ATTEST: By: Mic e S ' h, anager 'Sheryl Chap n,Acting City Jerk Approved as to form& legal sufficiency BY• Thomas Ansbr Cit§Xit rney WITNESS: FPL FIBERNET, L.L.C. By: Name: Title: 14 FPL FIBERNET, L.L.C. INTERIM RIGHTS-OF-WAY USE AGREEMENT THIS AGREEMENT made and entered into this 26 day of September, 2000, by and between FPL FIBERNET, L.L.C. (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 that would be capable of providing 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 numbor. The words "shall" and "will" are mandatory and "may" is permissive. Words not defined shall be given their common and ordinary meaning. 1.1 "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. 1.2 "Construction" means: Excavation, installation, removal, repair or maintenance of equipment in the rights-of-way. 1.3 "Telecommunication Service" means: a. Local Telephone Service, toll telephone service, telegram or telegraph service, teletypewriter service, or private communication service; or b. The term "Telecommunication Service" does not include any Internet access service, electronic mail service, electronic bulletin board service, or similar on-line computer service, nor cable television, Open Video Service or other audio-video transmission or cable radio or similar service. ARTICLE 2. AUTHORITY FOR USE OF RIGHTS-OF-WAY AND SCOPE OF AGREEMENT 2.1 The City grants the Provider permission to design, engineer, construct, acquire, lease, or cause to be constructed, facilities on, over, within, above or below City- owned rights-of-way within the City. The Provider's maintenance obligations shall be performed in accordance with industry standards and all applicable codes and laws. The Provider may place such facilities in the City Rights-of-Way subject to individual construction permits. The Provider shall detail the proposed route diagram, as well as a description of all facilities and appliances, the time period for performing construction and work in the Rights-of-Way, specific location and construction requirements, subject to the City's permitting approval and other conditions for construction and work in the Rights-of-Way. 2.2 The City grants access and use of its Rights-of-Way to the Provider for the construction, installation, and maintenance of its 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 2 • 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 and use the City's Rights-of-Way 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 athe 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. 2.5 The Provider shall construct and maintain its telecommunications facilities so as not to interfere unreasonably 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 installed by 3 Provider that will be capable for the provision of Telecommunications Services as 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 or 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 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 Provider hereby agrees that the installation of the equipment, fiber optic conduits and cables and telecommunication facilities related to Provider's services shall be installed at the locations/routes as specifically set forth in the plans submitted to the City's Engineer. All utilities shall be placed underground and all underground construction shall be done in accordance with the standards and policies approved by the City Engineer and Director of Public Works, which includes but is not limited to the utilization of trenchless technology methods and "open cut" construction methods as well as the requirements set forth the submitted and ® approved plans. 2.9 Above ground installation shall be done only with the prior written permission of the City Commission and of the owner of the poles and cables to be utilized, if any, a copy of which shall accompany the sealed plans to be submitted to the City Engineer or his designee for approval. Provider shall endeavor to install all equipment and telecommunication facilities underground, unless prevented by available technology or the physical characteristics of the location. 2.10. Provider shall provide the City Engineer or his designee with as-built plans in the. form requested upon completion of all construction work in the City's right-of- way. 2.11 Tree Trimming. Provider shall have the authority to trim trees upon and overhanging streets, alleys, sidewalks, driveways and public places of the City so as to prevent the branches of such trees from coming in contact with the wires and cables of Provider or otherwise interfering with Provider's access or use of its facilities. All tree trimming shall be conducted in accordance with any and all applicable ordinances, laws, regulations, or statutes and acceptable local horticultural practices. • 4 ® 2.12 The Provider shall at all times comply with the requirements of the State's one- call notification system, Chapter 556 of the Florida Statutes. 2.13 Use of Joint Trench. PROVIDER may allow City facilities to be co-located within City's rights-of-way through the use of a joint trench during Provider's construction project. Such joint trench projects shall be negotiated in good faith by separate agreement between Provider and City and may be subjected to other municipal rights-of-way requirements. 2.14 Coordination with other Utilities: The City will provide any information it may have regarding existing or proposed installations. The Provider will be required to demonstrate why it cannot utilize existing conduits or cables that are available or why it cannot install its conduit as part of a joint effort with other proposed installations. Article 3. Construction and Performance Security Fund and Costs 3.1 Prior to commencing any excavation or construction work within the City's Rights-of-Way the Provider shall post a construction bond or cash deposit 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. The bond shall be issued by a surety authorized to do business in the State of Florida and in a form substantially similar to the public construction bond set forth in § 255.05, Florida Statutes. In the event the Provider fails to complete its work in a safe, timely and competent manner in accordance with the provisions of the permit, within seven days of City's notice to the Provider of such failure or as required by applicable law, there shall be recoverable, jointly and severably from the surety and principal of the Bond, any damages or loss suffered by the City as a result including the full cost of removal of the facilities and restoration of the rights of way to their condition prior to Provider's construction. 3.2 At the time of Provider's acceptance of the terms and conditions of this Agreement, the Provider shall file with the City Clerk, after approval by the City, a performance security fund in the form of an annual bond or cash deposit in the minimum sum of Twenty-Five Thousand Dollars ($25,000.00) having as a surety a company qualified to do business in the State of Florida, and acceptable to the City by and through its telecommunications counsel. The security fund shall be conditioned on the full and faithful performance by the Provider of all requirements, duties and obligations imposed upon Provider by the provisions of this Agreement. The security fund shall be furnished annually and shall provide 5 ® a continuing guarantee of Provider's full and faithful performance at all times throughout the effective term of this Agreement. In the event Provider fails to cure its default in performance of any requirements, duties and obligations imposed upon Provider by the provisions of this Agreement, there shall be recoverable, jointly and severally from the principal and surety of the bond, any damages or loss suffered by the City as a result, including the full amount of any compensation, indemnification or cost of removal or abandonment of any property of the Provider, plus a reasonable allowance for attorneys' fees, up to the full amount of the bond. In lieu of the bond or cash deposit required by this Section, the City may in its reasonable discretion accept a corporate guarantee of the Provider or its parent company, if the Provider is a publicly traded company and maintains an insurance rating of no less than A-. 3.3 Construction and Relocation Costs a. The Provider shall be responsible for all costs and fees incurred by the City that are directly associated with its installation, maintenance, repair and replacement of its facilities within the Rights-of-Way, that are not otherwise recovered through the usage fees. Such costs and fees shall include, but are not limited to permit fees and engineering costs. 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. 6 ARTICLE 4. TERM/TERMINATION 4.1 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 a superseding 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 Provider 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 and shall comply with all other lawful provisions of the City's ordinance. Following such termination of this Agreement, Provider 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 and all lawful provisions of the City's ordinance; or C. 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, Provider shall have one hundred and twenty (120) days to register in accordance with said section and the provisions of this Agreement shall terminate, except as set forth in this paragraph and in paragraph 11.7 of this Agreement. Provider shall be entitled to continue to occupy the right-of-way subject to compliance with the one hundred twenty (120) day registration requirement and subject to compliance with the City's lawful regulations regarding construction within the public rights-of-way, in the absence of other regulations; shall be deemed to be those matters set forth in this Agreement; 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 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 6 of this Agreement, then Section 6 shall no longer be effective. e. Notwithstanding anything in this Section to the contrary, Franchisee hereby acknowledges the City's authority to impose the franchise fee required in Section 6 hereof, and the operation of any termination 7 provision set forth hereinabove shall not affect City's ability to cause revenues generated herefrom by the imposition of such franchise fee to be included in the calculation of either revenue streams or tax rates as may be required or permitted by applicable law enacted as SB 1338 in the 2000 Legislative Session. 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 five (5) years thereafter, unless extended at the request of either party. 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 Rights-of-Way Construction and Administration Ordinance. ARTICLE 5. LEASE OF PROVIDER'S FACILITIES 5.1 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. 5.2 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 6. TRANSFER OF OWNERSHIP 6.1 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. ARTICLE 7. COMPENSATION 7.1 Application Fee The Provider shall pay the City $5,000 at the time it files its application with the City. Such fee is a one time fee related to processing, reviewing 8 and negotiating a use agreement and as such shall not be credited towards • the applicable use fee or other fees and costs. 7.2 Use Fee Commencing on the effective date of this Agreement and continuing throughout its Term, the Provider shall pay an annual fee (on the City's fiscal year basis) equal to: a. Fifty cents ($.50) per linear foot of any cable, fiber optic, or other pathway that makes physical use of the City's Rights-of-Way. By way of illustration, and not limitation, such linear foot fee shall be required 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 on a quarterly basis 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). 7.3 The Provider shall send all payments payable hereunder, to: Michael W. Smith, City Manager City of Dania Beach 9 • 100 W. Dania Beach Boulevard Dania Beach, Florida 33004 7.4 Pavment shall be made within thirty (30) business days after the close of each fiscal quarter or year, as appropriate. 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. 7.5 If any quarterly or annual 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 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 8. ACCEPTANCE 8.1 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 9. CONFIDENTIAL INFORMATION 9.1 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 166.231(9)(c), Florida Statutes. r ARTICLE 10. INDEMNIFICATION 10.1 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 10 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. 10.2 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. 10.3 Provider 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 representatives, on each such occasion contacts Provider 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. Provider does not waive any claims against the City for damages arising out of the City's gross negligence or willful misconduct by the City, or its employees, contractors, • agents, or representatives. ARTICLE 11. INSURANCE 11.1 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 Two Million Dollars ($2,000,000) combined single limit per occurrence for bodily injury, personal injury, and property damage liability, naming the City as an additional insured. ® 11 (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. 11.2 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. 11.3 Nothing contained in this Agreement shall limit the Provider's liability to the City to the limits of insurance certified or carried. 11.4 The Provider and the City agree that the Provider may self-insure its obligations under this Agreement. The Provider shall provide the City within thirty (30) days written notice prior to cancellation, revocation, non-renewal or material change in such self-insurance. The City shall be named as an additional insured. 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: FPL Fibernet, LLC 9250 W. Flagler Street Miami, Florida 33174 12 Attn: Sol. Stamm, Controller The City: Honorable Charles K. McElyea, Mayor City of Dania Beach 100 West Dania Beach Boulevard Dania Beach, Florida 33004 With a Copy to: Michael W. Smith, City Manager City of Dania Beach 100 West Dania Beach Boulevard Dania Beach, Florida 33004 and Thomas Ansbro, City Attorney City of Dania Beach 100 West Dania Beach Boulevard Dania Beach;Florida 33004 • or to replacement addresses that may be later designated in writing. REMAINDER OF PAGE LEFT BLANK INTENTIONALLY 13 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. CITY OF DAN A ACH By: C.K. McElyea,Ma r ATTEST: By: Michael It Via ger Sheryl Chap an,Acting City Crerk Approved as to form& legal sufficiency By: Thomas Ansbro,C Att6mey WITNESS: FPL FIBERNET, L.L.C. By: Name: Title: 14