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R-2000-208
RESOLUTION NO. 2000-208 • A RESOLUTION OF THE CITY OF DANIA BEACH, FLORIDA, APPROVING AN INTERIM FRANCHISE AGREEMENT BETWEEN THE CITY OF DANIA BEACH AND AMERICAN COMMUNICATION SERVICES OF JACKSONVILLE, INC., D/B/A E.SPIRE 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 TO PROVIDE 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 American Communication Services Of Jacksonville, Inc., d/b/a e.spire, 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 Franchise 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 That all resolutions or parts of resolutions in conflict with this resolution are hereby repealed to the extent of such conflict.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. • G:\R E S20001R E S-E.S P I R E 12/22/2000 1 RESOLUTION NO. 2000-208 PASSED AND ADOPTED THIS 19" DAY OF DECEMBER, 2000. AYOR - COIVIWSWNER ATTEST: ROLL CALL: ? MAYOR MCELYEA - YES (� VICE-MAYOR BERTINO- YES SHERYL CHAPMAN COMMISSIONER CALI - NO ACTING CITY CLERK COMMISSIONER ETLING - NO COMMISSIONER MIKES- YES APPROVED AS TO FORMAND CORRECTNESS: BY: /n!A (� THOMAS/JJANSB'RD CITY ATTORNEY • GARES20001RES-E.SPI RE 12/22/2000 2 RESOLUTION NO. 2000-208 INTERIM FRANCHISE AGREEMENT • WITH AMERICAN COMMUNICATION SERVICES OF JACKSONVILLE, INC., DB/A E.SPIRE THIS INTERIM FRANCHISE AGREEMENT effective as of 2000 by and between the CITY OF DANIA BEACH, a municipal corporation, whose address is 100 West Dania Beach Boulevard, Dania Beach, Florida 33004 (hereinafter referred to as the "City") and AMERICAN COMMUNICATION SERVICES OF JACKSONVILLE, INC., D/B/A E.SPIRE, whose address is 131 National Business Parkway, Suite 100, Annapolis Junction, Maryland 20701 (hereinafter referred to as the "Franchisee"). WHEREAS Chapter 95-403, Florida Laws, authorizes competition in the local exchange telecommunications business, effective January 1, 1996, and provides for alternative local exchange telecommunications companies to be certified by the Florida Public Service Commission; WHEREAS Franchisee has been certified by the Florida Public Service Commission as an alternative local exchange telecommunications company and desires to utilize the City's Public Rights-of-Way to serve customers in the City; WHEREAS City has the right and authority to manage the Public Rights-of-Way of the City, and may thereby establish reasonable requirements for the grant of franchises to telecommunications providers for use of the Public Rights-of-Way of the City; WHEREAS Franchisee has requested from the City a Franchise to use the Public Rights- of-Way of the City to conduct business as a telecommunications provider; and WHEREAS the City and Franchisee have negotiated this Interim Franchise Agreement ("Agreement") which is mutually agreeable to both parties. NOW, THEREFORE, in consideration of the mutual covenants contained herein and intending to be legally bound thereby, the City and Franchisee enter into this Agreement and agree as follows: SECTION 1. DEFINITIONS. 1.1 "Agreement" or "Interim Franchise Agreement" shall mean this Agreement. 1.2 "Customer" shall mean any Person who is provided Services of any kind by Franchisee, directly or indirectly. For the purpose of provision of Services between different locations of the same Customer, the term "Customer" shall include any Person controlling, controlled by or under common control with such Customer. 1.3 "Effective Date" shall mean the date on which this Agreement is executed by both the City and Franchisee. 1.4 "FCC" shall mean the Federal Communications Commission. • 1.5 "Franchise Year" shall be the fiscal year from January 1 st through December 31 st provided that the first Franchise Year shall begin on the effective date of this Agreement and end on December 31 St of the year in which the effective date occurs. 1.6 "Recurring Local Service Revenues" means revenues from the monthly recurring charges for local service, including but not limited to (1) recurring basic area revenues derived from the provision of flat-rated basic area services, (2) recurring optional extended area revenues derived from the provision of optional extended area services, (3) local private line revenues derived from local services which provide communication between specific locations, either through dedicated circuits, private switching arrangements, predefined transmission paths, whether virtual or physical, or any other method of providing such services; and (4) revenues derived from the sale of local services for resale; and (5) other local service revenues from the provision of secondary features that are integrated with the telecommunications network, including, without limitation, services such as voice mail, call forwarding, call waiting, and touchtone line service. Except as provided herein, revenues from all recurring local services provided by a Franchisee over a Telecommunications Facility or System in the Public Rights-of- Way shall constitute Recurring Local Service Revenues subject to this Agreement. Recurring local service revenues do not include revenues from (1) toll charges for the transmission of voice, data, video, or other information; (2) access charges paid to Franchisee by carriers for origination and/or termination of toll telephone service as defined in Section 203.012(7), Florida Statutes, or other charges required by the Federal Communications Commission which are • directly passed through to end users; (3) interstate service; (4) ancillary services such as directory advertising, directory assistance, detailed billing services, inside wire maintenance plans, bad check charges, and non-recurring charges for installation, move, changes or termination services; (5) cellular mobile telephone or telecommunications services; or specialized mobile telephone or telecommunications service; or specialized mobile telephone or telecommunications services; or specialized mobile radio, or pagers or paging service, or related ancillary services; (6) public telephone charges collected on site; (7) teletypewriter or computer exchange services as defined in Section 203.012(6), Florida Statutes; or (8) local message rated (message, unit or time basis) and minutes of use charges in excess of the minimum flat-rated charges for similar services. 1.7 "PSC" shall mean the Florida Public Service Commission. 1.8 "Public Rights-of-Way" means the surface, the airspace above the surface and the area below the surface of any public street, highway, road, boulevard, concourse, driveway, freeway, thoroughfare, parkway, sidewalk, bridge, tunnel, park, waterway, dock, bulkhead, wharf, pier, court, lane, path, alley, way, drive, circle, easement, public place, or any other property in which the City holds any kind of property interest or over which the City exercises any type of lawful control, to the full extent of such interest or lawful control. "Public Rights-of-Way" shall not include any real or personal City property except as described above and shall not include City buildings, fixtures, and other structures or improvements, regardless of whether they are situated in the Public Rights-of-Way. 1.9 "Telecommunications Provider" shall mean any entity that provides • Telecommunications Services. 2 1.10 "Telecommunications Services" or "Services" shall have the meaning given in Section 203.012 (5), Florida Statutes. 1.11 "Telecommunications System," "System" or "Facilities" shall refer to the system or facilities of the Franchisee in the Public Rights-of-Way, as authorized by this Agreement. SECTION 2. FRANCHISE. 2.1 Grant of Franchise. Subject to all the terms and conditions contained herein, and to all State and local laws, the City hereby grants Franchisee permission to erect, construct, install, operate, repair, maintain, expand and use the Telecommunications System for the provision of Telecommunications Services in, on, over, under and/or across the Public Rights-of-Way of the City, which services may not include cable television, radio, wireless telephone, or open video without amendment to this Agreement. Notwithstanding anything contained herein to the contrary, Franchisee shall not provide services other than Telecommunication Services over the system, without the prior written consent of the City, which consent shall not be unreasonably withheld. 2.2 Nonexclusive/Priority. The permission hereby granted ("Franchise") shall be nonexclusive. This Franchise does not establish any priority for the use of the Public Rights- of-Way by Franchisee or by any present or future franchisee or other permit holders. 2.3 Term of Franchise. The term of this Agreement shall be five (5) years unless earlier terminated or partially terminated as provided below: a. Upon this Agreement being terminated by operation of law; or b. Upon the City's enactment of 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 Franchisee shall have one hundred twenty (120) days to register in accordance with the lawful registration provisions of the City's ordinance as required at the time of the termination and shall comply with all other lawful provisions of the City's ordinance. Following such termination of this Agreement, Franchisee shall be entitled to continue to use the rights-of-way, without interruption, subject to compliance with the one hundred twenty (120) day registration requirement 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, Franchisee 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. Franchisee shall be entitled to continue to occupy the rights- 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 Sections 5 through 9 of this Agreement; or 3 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 3 of this Agreement, then Section 3 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 3 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. 2.4 Future Ordinances of the City. The City and Franchisee understand that this Interim Franchise Agreement shall be subject to future ordinances, including any rights-of- way construction and administration ordinances and telecommunications ordinances which may be adopted by the City consistent with applicable state or federal law. By execution of this Interim Franchise Agreement, Franchisee does not waive any rights it may have to challenge any provisions of any future applicable ordinances which are inconsistent with state or federal law. However, where any changes in federal or state law authorize the City to obtain additional fees or in-kind services from the Franchisee in exchange for additional consideration from the City to the Franchisee, the Franchisee shall not, by this paragraph, be deemed to have agreed to such . additional requirements without such additional consideration. 2.5 Franchise Area. This Franchise is granted on a nonexclusive basis through Public Rights-of-Way located within the City including any area which is annexed or consolidated within the City. 2.6 Governing Requirement. Franchisee shall, at all times during the life of this Franchise, be subject to all lawful exercise of the police power by the City. Franchisee is subject to and agrees to comply with all lawful applicable local, City, state and federal laws, ordinances, rules, regulations and orders, as may be amended from time to time. 2.7 Application. Franchisee shall be required to complete and submit to the City an application and pay an application fee of$5,000 prior to execution of this Agreement by the City. The application fee shall be creditable against the fee payable under Section 3.1. SECTION 3. COMPENSATION REQUIRED. The following consideration for the use of Public Rights-of-Way by Franchisee for the purpose of installing and placing the Telecommunication Facilities, cables, conduits and other equipment to be utilized solely for pass through telecommunications services shall be paid by Franchisee to City as follows: A. Linear Foot Compensation. Franchisee shall pay annually to City a fee equal to Fifty Cents ($.50) per linear foot of each fiber optic conduit, cable, or other pathway that makes physical use of the Public Rights-of-Way. Said fee shall commence within thirty (30) 4 days following completion of the placement and installation of Franchisee's fiber optic conduit, cable, or other pathway in the Public Rights-of-Way, but not later than sixty (60) days from the date of the initiation of construction of said facilities. Subsequent annual payments under this section shall be made on or before the one (1) year anniversary date of the initial payment, unless an alternate method of compensation, as indicated below, has been initiated. The fee shall be calculated on a per linear foot basis measured by the length of conduit owned by Franchisee. All measurements shall be calculated to the nearest foot. Each annual payment shall be accompanied by an annual report providing detailed information on all aerial and underground usage of the Public Rights-of-Way. The report shall also list any and all newly added installations, in the Public Right-of-Way. Said report shall also include a statement on company letterhead by an officer or designee of Franchisee certifying that the information and computations contained in the report is true and accurate. B. Alternate Compensation Payment. Upon submitting appropriate documentation substantiating than Franchisee is providing local services within the corporate limits of the City, then Franchisee will be released from its obligations of compensating the City on a linear foot basis as set forth above and shall be required to compensate the City as follows: Percentage of Gross Receipts: Franchisee shall pay quarterly (on the City's fiscal year basis) to the City a sum of money equal to one percent (1%) of its gross receipts on Recurring Local Service Revenues derived during each quarter from services provided within the corporate limits by Franchisee, excluding revenues derived from calls made by the City. All payments made pursuant to this paragraph 3B shall be made within thirty (30) business days after the close of each fiscal quarter, and Franchisee shall file, with the City's Director of Finance, a statement, signed by an authorized accounting or financial representative of Franchisee, of the gross receipts on Recurring Local Service Revenues derived in the preceding quarter. C. Acceptance of any fee payment as indicated in paragraphs 3A and 3B shall not be deemed a waiver or release of any claims the City may have for additional sums, nor be construed as an accord and satisfaction that the amount paid is correct. D. If any payment is not received by the City within thirty (30) days of the required period, Franchisee shall pay interest on any such unpaid portion thereof at the rate of eighteen percent (18%) per annum from the first day after the payment period until paid to the City, and Franchisee shall reimburse the City for the actual and reasonable out of pocket costs of the City associated with collecting any sums of money Franchisee is required to remit to the City pursuant to this Agreement. E. This Agreement governs only the placement of telecommunication lines, cables, and equipment in Public Rights-of-Way, and is in no way contingent upon entry into any additional franchise agreement between Franchisee and the City. However, in the event Franchisee desires to utilize its network for any purpose other than as an alternate local exchange carrier, including but not limited to cable television services, open video system or other communication related services, Franchisee shall enter into the requisite franchise or other agreements, and shall remit any required additional compensation. 5 SECTION 4. REPORTS. 4.1 Access to Company Records. The Franchisee shall establish and maintain appropriate accounts in accordance with generally accepted accounting methods, and shall maintain records in such detail that revenues within the limits of the City are consistently declared and identified separately from all other revenues. All records shall be maintained for a minimum of three (3) years, or longer if required by applicable regulatory bodies. The City may, at its option, upon ten (10) days written notice to the Franchisee, examine the records and accounting files, and such other.books and records, if such records relate to the calculation of Franchise Fee payments or any other payments due to the City, or to proper performance of any terms of this Franchise. The examination of such books, accounts, records or other materials necessary for determination of compliance with the terms, provisions and requirements of this Franchise shall be during regular hours of business at a location within Broward County. 4.2 Public Inspection and Business Confidentiality. Franchisee recognizes that the City must comply with the provisions of Chapter 119, Florida Statutes. However, the City acknowledges that certain records provided by Franchisee may be exempt from the disclosure requirements of Chapter 119, Florida Statutes and may be required to remain confidential. SECTION 5. CONSTRUCTION AND INSTALLATION OF FRANCHISEE'S TELECOMMUNICATIONS SYSTEM. 5.1 General. a. Franchisee shall construct the Telecommunications System within the Public Rights-of-Way in conformity with this Agreement and applicable law. The City may require such modifications to the system or facilities proposed as may be necessary in the exercise of the City's authority to manage its Public Rights-of-Way. This section does not authorize the City to exercise authority it does not otherwise have under applicable law. b. Any pavements, sidewalks, curbing, other paved area, or landscaped area taken up, or any excavations made by Franchisee shall be done under the supervision and direction of the City under permits issued for said work by the proper officials of the City, and shall be done in such manner as to give the least inconvenience to the inhabitants of the City. The City may require Franchisee to notify affected residents prior to work activity in the Public Rights-of-Way. Franchisee hereby agrees that the installation of the equipment, fiber optic conduits and cables and telecommunication facilities shall be installed at the locations and routes as specifically set forth in the plans submitted to the City. The City may specify in permits the dates and time periods for performing construction, and may restrict construction and work in certain areas. In addition, the City may require the utilization of trenchless technology methods and "open cut" construction methods, and may specify other requirements for construction and use of the rights-of-way as may be necessary. C. Franchisee, shall, at its own cost and expense, and in a manner Is approved by the City, replace and restore any such pavements, sidewalks, curbing, other paved 6 area, or landscaped area in as good a condition as before the work involved in such disturbance was performed, and shall, consistent with applicable law, repair immediately, at its own expense, any damage caused to other permitted facilities or City facilities. Franchisee shall warrant and guarantee such restoration for a period of one (1) year. If Franchisee fails to clean up and restore to City's satisfaction, City may, within seventy-two (72) hours notice to Franchisee, clean up and restore City's Public Rights-of-Way at Franchisee's sole expense. Franchisee will remit City's costs for clean up and restoration within thirty (30) days of City invoicing Franchisee d. Franchisee shall prepare and keep full and complete maps showing the as-installed locations of its facilities placed within the Public Rights-of-Way and easements of the City. A copy of the maps shall be filed with both the City Engineering Department and the City Utilities Department in a format that can be incorporated into the City's CAD system. e. The Franchisee shall not be required to obtain a permit prior to construction in the event of an emergency, which is defined as a situation where in the reasonable judgment of the Franchisee, the Franchisee is unable to obtain a permit prior to construction because such construction is: 1) necessary to prevent damage to the Facilities, or 2) necessary to restore Service during an unplanned and unexpected outage. Franchisee shall notify the City of any event it considers to be an emergency where the same occurs during business hours. Where an emergency occurs during periods other than business hours the Franchisee may perform that work which is necessary to respond to the emergency and shall immediately notify the City at the next opportunity to do so during business hours. The City may then inspect the emergency work and may require the Franchisee to obtain a retroactive permit. Franchisee shall be required to comply with the provisions of Section 556, Florida Statutes, for all emergency work to the extent possible. f. Franchisee shall, as provided by Sections 337.403 and 337.404, Florida Statutes, and within the time frame required by the City, which shall not be unreasonable under the circumstances, protect, support, temporarily disconnect, relocate, or remove any of its property, at no cost to the City, when required by the City by reason of traffic conditions, public safety, road construction, change of street grade, installation of sewers, drains, water pipes, power lines, signal lines, tracks, or any other type of municipal improvements; provided, however, that the Franchisee shall, in all such cases, have the privilege of abandoning any property in place. g. Franchisee shall, on the request of any person holding a building moving permit issued by the City, temporarily raise or lower its wires to permit the moving of buildings. The,expense of such temporary raising or lowering of wires shall be paid by the person requesting the same, and the Franchisee shall have the authority to require such payment in advance. The Franchisee shall be given not less than thirty (30) days advance written notice to arrange for such temporary relocation. h. In all sections of the City where the cable, wires, or other similar facilities of public utilities are located underground, the Franchisee shall similarly place its cables, wires or other like facilities underground, consistent with applicable law. 7 i. In the event the Franchisee deems the trimming or removal of any trees reasonably necessary to construct any portion of the System and to maintain the integrity and safety of same, it shall, pursuant to the requirements of existing or subsequently enacted City ordinances, obtain any required permits from the appropriate City personnel. j. Franchisee shall comply with the provisions of Section 556.104, Florida Statutes, for all construction in the Public Rights-of-Way. k. Franchisee shall furnish the City's Engineering Division and Public Works Department with engineering plans and application for plan review, make any required corrections, obtain plan approvals, submit application for permit and obtain a rights-of-way permit through a licensed engineering contractor, furnish shop drawings signed and sealed by an engineer licensed in the State of Florida for any structures placed in the rights-of-way, obtain City approval of a Maintenance of Traffic Plan for the project, schedule and attend a pre-construction meeting prior to commencing work in the Public Rights-of-Way and provide as-built drawings signed and sealed by a professional land surveyor licensed in the State of Florida. Notwithstanding the foregoing, pursuant to Section 471.003, Florida Statutes, Franchisee may allow its engineers, who are regular, full-time employees, to perform all services in the fulfillment of the permit obligations stated herein that are required to be performed by engineers licensed in the State of Florida. Franchisee shall not permit other users to occupy Franchisee's Facilities in Public Rights-of-Way without first receiving proof of City permits or other authorizations having been issued to such other user; provided, however, that nothing in this Section shall be interpreted in a manner inconsistent with state or federal law, and this Section shall be implemented with due regard for reasonable confidentiality protections. In applying for permits for underground construction, Franchisee shall submit maps or other information indicating the location of existing utilities in the rights-of-way along the routes sought to be used by Franchisee. City may when issuing permits, specify the specific location in the rights-of-way where the Franchisee may install its facilities, including the depth of such facilities installed underground. Franchisee's route specification and intended routes shall be approved by the City Commission. 1. Use of Joint Trench. Franchisee shall allow City facilities to be co- located within City's Public Rights-of-Way through the use of a joint trench during Franchisee's construction project. Such joint trench projects shall be negotiated in good faith by separate agreement between Franchisee and City and may be subjected to other municipal rights-of-way requirements. in. Coordination with other Utilities: The City will provide any information it may have regarding existing or proposed installations. Franchisee will be required to demonstrate why it cannot utilize existing conduits or cables that are available on Franchisee's proposed installation route or why it cannot install its conduit as part of a joint effort with other proposed installations. 5.2 Laws, Regulations and Construction Standards. Franchisee shall construct, install, operate and maintain the Telecommunications System in a manner consistent with all Federal, State and local laws, ordinances, construction standards, FCC technical standards and rules and regulations, and all other applicable governmental requirements, including, but not limited to 8 the standards of the Occupational Safety and Health Administration and the National Electrical Safety Code. 5.3 Construction Bond Required. Prior to obtaining a permit or to performing any work in the Public Rights-of-Way, the Franchisee shall establish in the City's favor a construction bond in an amount adequate to ensure the Franchisee's faithful performance of the construction, upgrade, rebuild or other work. The construction bond shall be in the amount equal to One Hundred Thousand and 00/100 Dollars ($100,000.00),or other amount as approved by the City Attorney, and shall be in a form which is substantially similar to the public construction bond as set forth in Section 255.05, Florida Statutes. In the event a Franchisee fails to complete the work in a safe, timely and competent manner in accordance with the provisions of the permit and/or fails to restore the Rights-of-Way, within seven (7) days of City's written notice to Franchisee of such failure or as required by applicable law, 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 Franchisee, or the cost of completing the work, plus a reasonable allowance for attorneys' fees, up to the full amount of the bond. The Franchisee shall be entitled to obtain a release of the construction bond from the City upon completion of the work and submission to the City of necessary documentation demonstrating that the work has been completed in accordance with the provisions of the applicable permit and this Agreement. SECTION 6. INSURANCE AND INDEMNIFICATION. 6.1 Indemnification. a. Franchisee shall and does hereby agree to, save, indemnify and hold the City, elected and appointed officers, boards, commissions, legal counsel, employees and agents harmless from any injury, claim,,demand, suit, judgment, execution, liability, debt, damages or penalty arising out of, resulting from, or alleged to rise out of or result from any act or omission by Franchisee relating to its performance under this Agreement, including Franchisee's negligent acts or omissions in the operation of the Facilities together with all costs, expenses, and liabilities incurred by the City in connection with each such claim, demand, action or proceeding including, but not limited to, reasonable attorney's fees. The Franchisee's obligation to indemnify the City shall not include indemnification for acts or omissions of the City, or its officers, boards, commissions, legal counsel, employees and agents, which acts are negligent, wrongful, or in bad faith. b. In all instances in which Franchisee is obligated to indemnify and hold harmless the City as provided for in this Agreement, Franchisee's obligation shall be conditioned upon (i) the City giving Franchisee written notice of all claims, damages, losses, suits and any other events which are in any way related to or asserted by the City as a basis for such obligation, which notice shall be given within a reasonable time after the City becomes aware thereof, and (ii) Franchisee shall be afforded the sole right to the defense of such matter and the sole right to determine the disposition of such matter, unless such defense assumption and control over the disposition of the case would not be permitted by the City's insurance carrier or excess insurance carrier without jeopardizing the City's available coverage. 9 6.2 Insurance. During the term of this Franchise, Franchisee shall maintain, or cause to be maintained, in full force and effect and at its sole cost and expense, the following types and limits of insurance: a. Workers' compensation insurance within Florida statutory limits and employers' liability insurance with minimum limits of One Hundred Thousand Dollars ($100,000) each accident, or such greater minimum amount as is required by law; b. Comprehensive general liability insurance with minimum limits of Two Million Dollars ($2,000,000)as the combined single limit for each occurrence of bodily injury, personal injury and property damage. The policy shall provide blanket contractual liability insurance for all written contracts,and shall include coverage for products and completed operations liability, independent contractor's liability; coverage for property damage from perils of explosion, collapse or damage to underground utilities, commonly known as XCU coverage; and coverage for loss or damage arising out of publications or utterances in the course of or related to advertising, broadcasting,telecasting or other communication activities conducted by or on behalf of Franchisee; C. Automobile liability insurance covering all owned, hired, and non- owned vehicles in use by Franchisee, its employees and agents, with personal protection insurance and property protection insurance to comply with the provisions of the applicable State law, including residual liability insurance with minimum limits of Two Million Dollars ($2,000,000) as the combined single limit for each occurrence for bodily injury and property damage; and d. Such other or alternate limits as the City may reasonably require. 6.3 The Franchisee may self-insure all or a portion of the insurance coverage and limit requirements required by this Section. In the event Franchisee does self-insure, Franchisee shall not be required to comply with the requirement for the naming of additional insureds under Section 6.4 below. If Franchisee elects to self-insure, Franchisee shall provide to the reasonable satisfaction of the City, evidence demonstrating its financial ability to self-insure the insurance coverage and limit requirements required under this Section. 6.4 Named Insureds. All certificates of insurance shall name the City of Dania Beach as an additional insured. 6.5 Cancellation of Policies of Insurance. At least thirty (30) days prior written notice shall be given to the City by the insurer of any intention not to renew such policy or to cancel, replace or materially alter same, such notice to be given by registered mail to the City. In the event the required insurance is canceled, or for any reason terminated and is not replaced with a new or renewed insurance policy which covers the contractual period, City shall suspend this agreement until such time as a new or renewed certificate is received by the City. SECTION 7. PERFORMANCE BOND. At the time of Franchisee's acceptance of the terms and conditions of this Agreement, the Franchisee shall file with the City Clerk, after approval by the City, a cash security fund or an annual bond 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 10 and through its attorney. The bond or security fund shall be conditioned on the full and faithful performance by the Franchisee of all requirements, duties and obligations imposed upon Franchisee by the provisions of this Agreement. The bond or security fund shall be furnished annually and shall provide a continuing guarantee of Franchisee's full and faithful performance at all times throughout the effective term of this Agreement. In the event a Franchisee fails to cure its default in performance of any requirements,duties and obligations imposed upon Franchisee by the provisions of this Agreement, subject to Section 8 below, 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 Franchisee, plus a reasonable allowance for attorneys' fees, up to the full amount of the bond. In lieu of the bond or security fund required by this Section, the City may in its reasonable discretion accept a corporate guarantee of the Franchisee or its parent company, if the Franchisee is a publicly traded company and maintains an insurance rating of no less than A-. SECTION 8. RELOCATION. As provided by and in accordance with the requirements of Section 337.403, Florida Statutes,Franchisee agrees to relocate the facilities to another reasonable location or deepen in place such facilities upon receipt of the City's request in accordance with Section 337.403, Florida Statutes. Any facility placed upon, under, over, or along any rights-of-way that is found by the City to be unreasonably interfering in any way with the convenient, safe, or continuous use, or the maintenance, improvement, extension, or expansion of such pubic road, shall, upon 30 days' written notice to the Franchisee by the City, be removed or relocated by the Franchisee at its own expense except as provided in Section 337.403(l)(a), (b), (c),Florida Statutes. SECTION 9. DEFAULT. 9.1 Events of Default. Franchisee shall be in default if, during the term of this Agreement, Franchisee fails to perform or observe any term, covenant, or condition of this Agreement, within thirty (30) days after prompt written notice thereof from the City, unless such performance shall reasonably require a longer period, in which case Franchisee shall not be deemed in default if Franchisee commences the required performance promptly and thereafter pursues and diligently completes such action. 9.2 Notice and Cure. Neither party shall be in default under this Agreement or in breach of any provision hereof unless and until the other party shall have given such party written notice of such default and the defaulting party shall have failed to cure the default within thirty (30) days after receipt of such notice; provided, however, that where such default cannot reasonably be cured within such thirty (30) day period, if the defaulting party shall proceed promptly to cure the same and prosecute such cure with due diligence, the time for curing such default shall be extended for such period of time as may be reasonably necessary under the circumstances to complete such cure. 9.3 Appeal. Franchisee may appeal any determination of default either to non- binding mediation or a court of competent jurisdiction. . SECTION 10. REMEDIES. 11 10.1 Remedies Not Exclusive. The rights and remedies of the City set forth in this Agreement shall be in addition to and not in limitation of, any other rights and remedies provided by law or in equity. 10.2 Revocation. The Franchise may be revoked by the City for Franchisee's material violation of the Franchise, material breach of the Franchise Agreement or material violation of Federal, State, local law or ordinance. To invoke the provisions of this subsection, the City shall give the Franchisee written notice, by certified mail at the last known address, that Franchisee is in material violation of the Franchise, Federal, State, or local law, or material breach of the Interim Franchise Agreement and describe the nature of the alleged violation or breach with specificity. Franchisee shall have the opportunity to cure any such material violation or material breach, in accordance with Section 9.2,prior to revocation of the Franchise. 10.3 Termination. At the expiration of the term for which this Franchise is granted, or upon its earlier revocation or termination, as provided for herein, in any such case without renewal, extension or transfer, the City shall have the right to require Franchisee to commence removing, at its own expense, all above-ground portions of the Telecommunications System from all Public Rights-of-Way, within a reasonable period of time, which shall not be less than one hundred eighty (180) days. 10.4 Abandonment. The Franchisee may, with the consent of the City, abandon any underground Franchise property in place so long as it does not materially interfere with the use of the Public Rights-of-Way or with the use thereof by any public utility or other telecommunications or cable company. SECTION 11. MISCELLANEOUS. 11.1 Amendments. The parties hereto may from time to time consider it in their best interest to change, modify or extend a term, condition or covenant of this Agreement. Any such change, addition, deletion, extension or modification, which is mutually agreed upon by and between the City and Franchisee shall be incorporated in written amendments (herein referred to as "Amendments") to this Agreement. Such Amendments shall not invalidate this Agreement nor relieve or release either party of any of their respective obligations under this Agreement except as expressly stated in such Amendment. No Amendment to this Agreement shall be effective and binding upon the parties unless it expressly makes reference to this Agreement. 11.2 Notices. Except as otherwise specified herein, all notices, consents, approvals, requests and other communications (herein collectively referred to as Notices") required or permitted under this Agreement shall be effective only when given in writing and mailed by registered or certified first-class mail, return receipt requested, addressed as follows: If to the City: Michael Smith, City Manager City of Dania Beach 100 West Dania Beach Boulevard Dania Beach, Florida 33317 With a Copy to: Tom Ansbro, City Attorney 12 City of Dania Beach 100 West Dania Beach Boulevard Dania Beach, Florida 33004 If to Franchisee: James C. Falvey, Esq. Senior Vice-President Regulatory Affairs e.spire Communications, Inc. 131 National Business Parkway, Suite 100 Annapolis Junction, MD 20701 With a Copy to: Gerald L. Knight. Esq. Holland & Knight, L.L.P. One East Broward Boulevard, Suite 1300 Fort Lauderdale, FL 33301 All Notices shall be deemed given on the day of receipt. Either party may change its address for the receipt of Notices at any time by giving notice thereof to the other as provided in this Section. Any Notice given by a party hereunder must be signed by an authorized representative of such party. 11.3 Assignment or Transfer. Franchisee shall not assign or transfer its Franchise or any right, title or interest in this Agreement without the written consent of the City, which consent will not be unreasonably withheld. Such approval shall be granted within thirty (30) days provided the assignee or transferee is certificated by the Florida Public Service Commission, has complied with the insurance and bonding requirements as required herein, agrees in writing to abide by and comply with the terms and conditions of this Agreement, and all outstanding issues of non-compliance by the Franchisee have been resolved or preserved to the City's satisfaction. Notwithstanding the foregoing, upon written notice to the City, and upon submission of a statement by the assignee that it assumes all obligation of Franchisee under this Agreement, Franchise may make such assignment without the consent of the City to: (a) a subsidiary, affiliate or parent company; (b) any firm or corporation which Franchisee controls, is controlled by, or is under common control with; or (c) any partnership in which it has a majority interest. 11.4 Entire Agreement. This Agreement contains the entire agreement between the parties. Neither party has made any representations except those expressly set forth herein, and no rights or remedies are or shall be acquired by either party by implication or otherwise unless expressly set forth herein. 11.5 Terminology. Unless the context otherwise expressly requires, the words "herein", "hereof' and "hereunder" and other words of similar import refer to this Agreement as a whole and not to any particular Section or other subdivision. 11.6 Captions. The headings of the Sections in this Agreement are for convenience only to facilitate reading and reference to its provisions and shall not be used to construe or interpret the scope or intent of this Agreement or in any way affect the same. 13 11.7 Survival. Any rights either party may have, which rights accrued to that party prior to termination of this Agreement, shall survive termination of the Agreement. 11.8 Construction. By their execution of this document, the parties indicate that they have been given a full and fair opportunity to consult with legal counsel of their choice. The Agreement shall be construed without regard to any presumption or other rule of law requiring construction against the party causing this Agreement to be drafted. 11.9 Counterparts. The Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original but all of which shall constitute one and the same agreement. 11.10 Governing Law; Venue. This Agreement shall be construed pursuant to the laws of the State of Florida. Any litigation regarding this Agreement shall commence in the Circuit Court for the 17"' Judicial Circuit of Florida, or in the United States District Court for the Southern District of Florida. 11.11 Force Mai eure. In the event of forced delay in the performance by either party of obligations under this Agreement due to acts of God or of the public enemy, fires, floods, epidemics, riots, insurrection, war, unavoidable casualties or other conditions or events beyond Franchisee's control, the time for performance of such obligations shall be extended for the period of the forced delay. 11.12 Waiver of Compliance. No failure by either party to insist upon the strict performance of any covenant, agreement, term or condition of this Agreement, or to exercise any right, term or remedy consequent upon a breach thereof shall constitute a waiver of any such breach or such covenant, agreement, term or condition. No waiver of any breach shall affect or alter this Agreement, but each and every covenant, agreement, term or condition of this Agreement shall continue in full force and effect with respect to any other existing or subsequent breach hereof. 11.13 Severability. If any section, paragraph or provision of this Agreement shall be held to be invalid or unenforceable for any reason, the invalidity or unenforceability of such section, paragraph, or provision shall not affect any of the remaining provisions of this Agreement. [Signatures on Next Page] 14 I ATTESTI CITY OF DANIA BEACH By: By: SHERYL CHAPMAN C.K. MCELYEA, MAYOR ACTING CITY CLERK- BY: MICHAEL SMITH CITY MANAGER Approved as to form & legal sufficiency THOMAS ANSBRO, CITY ATTORNEY WITNESS: AMERICAN COMMUNICATION SERVICES OF JACKSONVILLE, INC., D/B/A E.SPIRE By: Name: James C. Falvey, Esq. Title: Senior Vice President Regulatory Affairs • 15 TO: Mayor; City Commission, City Manager FROM: Gary I. Resnick, Office of the City Attorney DATE: November 30, 2000 RE: Resolution Approving the Interim Franchise Agreement with American Communication Services of Jacksonville, Inc. d/b/a e.spire ("e.spire") Attached please find the Interim Franchise Agreement with e.spire.This Agreement allows e.spire to install facilities within the City's rights-of-way to provide telecommunications services. Significant terms of the Agreement include the following: C Application Fee—The Agreement provides for an application fee in the amount of$5,000 to cover costs incurred in reviewing the application and preparing this Agreement. O Term--The Agreement is five years. It is entitled"Interim"because it is contemplated that the City will enact a general Rights-of-Way Use Ordinance that will then govern. ® Scope of Agreement -- The Agreement allows e.spire to begin the permitting process to commence construction and placement of facilities. The Agreement allows e.spire to provide telecommunications services only. If e.spire desires to provide other services, for example cable television, it must obtain further permission. © Compensation to the City --e.spire will pay the City$.50 per linear foot of fiber installed. If e.spire begins providing services within the City,then it will pay the City one percent(1%) of its gross receipts (the maximum State Law currently allows). o Construction and Installation Requirements—e.spire must apply for permits and submit detailed plans showing where its facilities will be located. Permits issued by the City may specify the dates and time periods for performing construction, may restrict construction in certain areas and during certain hours, and may require trenchless or other. construction methods. e.spire must restore all areas to the complete satisfaction of the City. The City may require that utilities doing work in the same area coordinate their construction to avoid multiple disturbances of the same rights-of-way. a Insurance and Indemnification—e.spire must maintain workers compensation insurance with$100,000 per accident,and general liability and automobile insurance with$2,000,000 for each occurrence. e.spire must fully indemnify the City. MEMORANDUM To: Mayor and City Commission, City of Dania Beach From: Mitchell A. Bierman, Assistant City Attorney Date: August 28, 2000 Re: Interim Right-of-Way User Agreement for American Communications Services d/b/a e.spire Attached is a proposed Interim Right-of-Way User Agreement ("Agreement") for American Communications Services d/b/a e.spire ("e.spire"). The Agreement is ready for approval by the commission. The Agreement grants e.spire permission to locate telecommunications facilities in the City's rights-of-way and operate a communications system in the City. We anticipate that the City will enter into numerous similar agreements because, as you are aware, • a large number of communications providers have expressed interest in locating facilities in the City's rights of way. The Agreement regulates e.spire's use of the City's rights of way and requires payment of statutorily authorized user fees .pending the City's adoption of a right-of-way ordinance. Additionally, the Florida Communications Services Tax Simplification Act ("Act") will become effective on October 1, 2001. This law will supersede and preempt certain provisions of the interim agreement, most notably, its user fee provision. Accordingly, the term of the agreement is 5 years subject to preemption of those provisions superseded by the Act or by City Ordinance. The Agreement requires e.spire to obtain a permit for any work in the rights of way except narrowly defined "emergency" work. Construction must be performed only pursuant to the permit and e.spire must submit detailed plans in a form required by the City showing the location of all underground facilities. All construction is subject to a right of inspection by the City. It must be performed so as to cause minimum inconvenience to the public. E.spire must restore the rights-of-way to the condition they were in prior to e.spire's construction. The City is further protected by indemnity, insurance and bonding requirements. E-spire must obtain at least $2 million in liability insurance and name the City as an insured. It must provide a construction bond in an amount sufficient for the proposed construction and a performance bond in the amount of $25,000. which shall remain in place during the life of the Agreement. If e.spire fails to perform its obligations the City may recover against the performance bond. E.spire has paid an application fee of $5,000. It shall receive a credit for this amount against user fees payable to the City under the Agreement. The user fee is limited by statute to an amount not to exceed 1% of the user's gross revenues from recurring local services provided in the City. This fee is inclusive of all taxes, licenses, fees and in-kind contributions. As stated above, the Act will change the fee structure to one in which the user will pay a single tax to be collected by the state and remitted to the City. The state and not the City will perform all audits of revenues for the purpose of collecting the tax. Thus the City will only collect the user fee and audit e.spire's records until October 1, 2001, when the Act takes effect. If the Act is repealed, struck down or amended such that it does not preempt the fee provisions, then the Agreement shall remain in full force unless superseded by a City right of way ordinance. • • Page 1 of 2 Johnson, Charlene —.--Gary I. Resnick[GResnick@wsh-flalaw.coml Sent: Thursday, January 04, 2001 10:54 AM To: Gary I. Resnick; 'Johnson, Charlene' Subject: RE: Amended Adelphia and e.spire Agreements i forgot to attach the agreemen Gary Rcsnicl: Weiss Scrota 1-leli'man Paston a & GneCICi. P-A. 954.763.4)42) 954.764.777O fax e-mail: gresn1ck!(1':v.vsh-11alav1:-,com -----Original Message----- From: Gary I. Resnick Sent: Thursday, January 04, 2001 10:52 AM To: 'Johnson, Charlene' Subject: Amended Adelphia and e.spire Agreements Charlene, Pursuant to your request through Tom, attached is the amended agreement for Adelphia Business Solutions. The resolution remains the same as the one I sent you prior to the meeting. I did not make the amendments to the e.spire agreement since e.spire will not be signing it. Again, the resolution remains the same. The changes to e.spire were identical to the changes in Adelphia's. In Section 5 k. add the following at the end: City may when issuing permits, specify the specific location in the rights-of-way where the Franchisee may install its facilities, including the depth of such facilities installed underground. Franchisee's route specification and intended routes shall be approved by the City Commission. Also, Section 8 was changed to the following: SECTION 8. RELOCATION. As provided by and in accordance with the requirements of Section 337.403, Florida Statutes, Franchisee agrees to relocate the facilities to another reasonable location or deepen in place such facilities upon receipt of the City's request in accordance with Section 337.403, Florida Statutes. Any facility placed upon, under, over, or along any rights- of-way that is found by the City to be unreasonably interfering in any way with the convenient, safe, or continuous use, or the maintenance, improvement, extension, or expansion of such pubic road, shall, upon 30 days' written notice to the Franchisee by the City, be removed or relocated by the Franchisee at its own expense except as provided in i Section 337.403(1)(a), (b), (c)„Florida Statutes. If you have any questions, feel free to contact me. Gary Resnick Weiss Scrota Helfman Pastoriza & Guedes, P.A. • 954.763.4242 954.764.7770 fax e-mail: gresnick@wsh-flalaw.com 1/22/01