2000-30 FPL FiberNet Franchise AgreementORDINANCE 30-2000
•
AN ORDINANCE OF THE VILLAGE COUNCIL OF THE VILLAGE OF NORTH PALM
BEACI-I, FLORIDA, AUTHORIZING AND DIRECTING THE MAYOR AND VILLAGE CLERK
TO ENTER INTO A FRANCHISE AGREEMENT WITH FPL FIBERNET, LLC, ATTACHED AS
EXHIBIT "A", WHICH FRANCHISE AGREEMENT AUTHORIZES FPL FIBERNET, LLC, AS
A TELECOMMUNICATIONS COMPANY TO UTILIZE PUBLIC RIGHTS-OF-WAY WITHIN
THE VILLAGE; AUTHORIZING AND DIRECTING THE MAYOR AND THE VILLAGE
CLERK TO EXECUTE THE FRANCHISE AGREEMENT; PROVIDING FOR THE REPEAL OF
ALL ORDINANCES OR PARTS OF ORDINANCES IN CONFLICT HEREWITH; AND,
PROVIDING FOR AN EFFECTIVE DATE.
I3E IT ORDAINED BY THE VILLAGE COUNCIL OF NORTH PALM BEACH, FLORIDA:
Section 1. The Village Council of the Village of North Palm Beach does hereby approve
the Franchise Agreement with FPL FiberNet, LLC, attached as Exhibit "A", which Franchise
Agreement authorized FPL FiberNet, LLC, as a telecommunications company to utilize the public
rights-of--way within the Village.
Section 2. The Mayor and the Village Clerk are hereby authorized and directed to
execute the Franchise Agreement for and on behalf of the Village of North Palm Beach.
Section 3. All ordinances or parts of ordinances in conflict herewith are hereby repealed.
Section 4. This Ordinance shall take effect immediately upon passage.
r1
LJ
PLACF~D ON FIRST READING THIS 28th DAY OF SEPTEMBER, 2000.
PLACED ON SECOND, FINAL READING AND PASSED THIS 12th DAY OF OCTOBER, 2000.
(VILLAGE SEAL) MAYOR
ATTEST:
EXHIBIT A
INTERIM FRANCHISE AGREEMENT
THIS FRANCHISE AGREEMENT effective as of October 12, 2000 by and between the
VILLAGE OF NORTH PALM BEACH, a municipal corporation, whose address is 501 U.S.
Highway 1, North Palm Beach, Florida 33408 (hereinafter referred to as the "Village") and FPL
Fibernet, L.L.C., (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 Village's Public
Rights-of--Way to serve customers in the Village;
WHEREAS Village has the right and authority to manage the Public Rights-of--Way of the
Village, and may thereby establish reasonable requirements for the grant of franchises to
telecommunications providers for use of the Public Rights-of--Way of the Village;
WHEREAS Franchisee has requested from the Village a Franchise to use the Public Rights-
of-Way of the Village to conduct business as a telecommunications provider; and
WHEREAS the Village and Franchisee have negotiated this Franchise 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 Village and Franchisee enter into this Franchise
Agreement and agree as follows:
SECTION 1. DEFINITIONS.
1.1 "Agreement" or "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 Village and Franchisee.
1.4 "FCC" shall mean the Federal Communications Commission.
1.5 "Franchise Year" shall be the fiscal year from January 1st through December
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• 31st provided that the first Franchise Year shall begin on the effective date of this Agreement and
end on December 3151 of the year in which this Agreement was executed.
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 call forwazding, 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 aze 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) cellulaz 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, boulevazd, concourse, driveway,
freeway, thoroughfare, parkway, sidewalk, bridge, tunnel, park, waterway, dock, bulkhead, wharf,
pier, court, lane, path, alley, way, drive, circle, utility easement other than a drainage easement,
public place, or any other property in which the Village holds any kind of property interest or over
which the Village 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 Village property except as
described above and shall not include Village 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.
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• 1.10 "Telecommunications Services" or "Services" shall mean any services that
Franchisee is authorized to provide by the FCC or the PSC.
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 Village 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 Village.
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 of the Village 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) yeazs unless
earlier terminated or partially terminated as provided below:
a. Upon this Agreement being terminated by operation of law; or
b. Upon the Village's enactment of an ordinance consistent with Section
337.401, Florida Statutes, as amended by Section 50 of SB 1338 in the 2000 Legislative Session
("Section 50"), in which event Provider shall have one hundred twenty (120) days to register in
accordance with the lawful registration provisions of the Village's ordinance as required at the time
of the termination. 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; 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 pazagraph 10.7 of this Agreement. Provider shall
be entitled to compliance with the one hundred twenty (120) day registration requirement; or
d. If this Agreement is not terminated pursuant to (a), (b) or (c) above,
or otherwise, then at such time as 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 Village'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 Village's ability
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• 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 Village. The Village and Franchisee understand
that this Franchise Agreement shall be subject to future ordinances, including any right-of--way
construction and administration ordinances and telecommunications ordinances which may be
adopted by the Village consistent with applicable state or federal law. By execution of this 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 Village to obtain additional fees or in-kind services from
the Franchisee in exchange for additional consideration from the Village 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 Village including any area which is annexed or consolidated
within the Village.
2.6 Governing Reauirement. Franchisee shall, at all times during the life of this
Franchise, be subject to all lawful exercise of the police power by the Village, provided that such
police power shall not alter the Grantee's rights or obligations under this Agreement.
SECTION 3. FRANCHISE FEE.
3.1 Payment of Franchise Fee. Franchisee shall pay to the Village a Franchise
Fee equal to five hundred dollars ($500.00) per linear mile per year of any cable, fiber optic, or other
pathway that makes physical use of the Public Rights-of--Way of the Village. This Franchise Fee is
being paid to the Village under the authority of Section 337.401(4), Florida Statutes.
Notwithstanding, if the Franchisee commences to provide such telecommunications services as
defined in Section 1.3 of this Agreement, then the Fratchisee shall be required to pay the greater of
(1) the fee imposed herein subsection 3.1, or (2) fee outlined in subsection 3.3 below.
3.2 Method of Payment. All payments of the Franchise Fees identified in Section
3.1 above shall be made within thirty (30) business days after the close of each fiscal quarter. Any
payments due not made within the time set forth herein shall accrue interest at the rate of twelve
percent (12%) per annum. Acceptance of any fee payment shall not be deemed a waiver or release
of any claims the Village may have for additional sums, nor be construed as an accord that the
amount paid is correct.
3.3. Payment of Franchise Fee. In the event the estimated recurring local
service revenues, generated by the commencement of telecommunications services, would be greater
• than the fee amount being paid under subsection 3.1 above, the Franchisee shall pay to the Village
the following fee. Franchisee shall pay to the Village a Franchise Fee equal to one percent (1%) of
its Gross Receipts on recurring local services revenues from Telecommunications Services provided
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• within the corporate limits of the Village. Included within such one percent (1%) maximum fee or
consideration are all taxes, licenses, fees, in-kind contributions accepted pursuant to Florida Statute
§ 337.401(5), and other impositions except ad valorem taxes and amounts for assessments for special
benefits, such as sidewalks, street pavings, and similar improvements, and occupational license taxes
levied or imposed by the Village upon a Telecommunications Company. This Franchise Fee is being
paid to the Village under the authority of Section 337.401(3), Florida Statutes. In the event the
maximum fee authorized by law is either decreased or increased from the current amount of one
percent (1 %) of gross receipts on Recurring Local Service Revenues, this Franchise Agreement shall
be deemed to be automatically amended to reflect the revised amount prospectively (from the
effective date or such change in the law).
3.4 Method of Payment. All payments of the Franchise Fees identified in
Section 3.3 above shall be made within thirty (30) business days after the close of each fiscal quarter,
and Franchisee shall file, with the Village'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. Any payments due not made within the time set forth
herein shall accrue interest at the rate of twelve percent (12%) per annum. Acceptance of any fee
payment shall not be deemed a waiver or release of any claims the Village may have for additional
sums, nor be construed as an accord that the amount paid is correct.
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 Village are consistently declared and
identified separately from all other revemies. All records shall be maintained for a minimum of three
(3) years, or longer if required by applicable regulatory bodies. The Village may, at its option, upon
ten (10) days 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 Village, 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 Palm Beach County. However, the Franchisee may choose to
provide such records at a location outside Palm Beach County but if it chooses to provide such
records outside Palm Beach County, it shall be required to compensate the Village for the Village's
reasonable travel costs to a location outside Palm Beach County to review such records. Reasonable
costs shall include mileage costs within a distance of seventy five miles from Village Hall and
mileage as well as the actual cost for meals and overnight accommodations for travel to a location
more than seventy-five miles from Village Hall. The Village's entitlement to such reimbursement
shall be subject to the same guidelines as the Village routinely applies in reimbursing its employees
for overnight travel.
• 4.2 Public Insaection and Business Confidentiality. Franchisee recognizes that
the Village must comply with the provisions of Chapter 119, Florida Statutes. However, the Village
acknowledges that certain records provided by Franchisee may be exempt from the disclosure
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• requirements 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
Sections 119.07(3)(r)[records disclosing the name, address, and telephone number of subscribers]
and 166.231(9)(c)[information obtained during Village audit of Franchisee may not be a public
record], Florida Statutes.
SECTION 5. CONSTRUCTION AND INSTALLATION OF FRANCHISEE'S
TELECOMMUNICATIONS SYSTEM.
5.1 General.
a. Franchisee shall construct the Telecommunications System within the
public right-of--way in conformity with this Agreement and applicable law. The Village may require
such modifications to the system or facilities proposed as may be necessary in the exercise of the
Village's authority to manage its Rights-of--way. This section does not authorize the Village 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 Village under permits issued for said work by the proper officials of the Village, and
shall be done in such manner as to give the least inconvenience to the inhabitants of the Village.
The Village may require Franchisee to notify affected residents prior to work activity in the right-of-
way. Franchisee, shall, at its own cost and expense, and in a manner approved by the Village,
replace and restore any such pavements, sidewalks, curbing, other paved 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
franchised. Franchisee shall prepare and keep full and complete maps showing the as-installed
locations of its facilities placed within the public tights-of--way and easements of the Village. A copy
of the maps shall be filed with both the Village Engineering Department and the Village Utilities
Department. Except in the case of an emergency, the Franchisee shall not commence any
construction in the Public Right-of--Way until all applicable permits have been issued. The term
emergency shall mean an out-of-service condition or other similar condition that may affect the
public's health, safety and welfare. Franchisee shall provide reasonable advance notice to the Village
of its intent to commence construction in the Right-of--Way in the event of an emergency.
c. Franchisee shall, as provided by Sections 337.403 and 337.404,
Florida Statutes, and within the time frame required by the Village, which shall not be unreasonable
under the circumstances, protect, support, temporarily disconnect, relocate, or remove any of its
property, at no cost to the Village, when required by the Village 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.
d. Franchisee shall, on the request of any person holding a building
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• moving permit issued by the Village, temporazily raises or lowers 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.
e. In all sections of the Village where the cable, wires, or other similar
facilities of public utilities (herein "infrastructure") aze located underground, the Franchisee shall
similarly place its cables, wires or other like facilities underground, consistent with applicable law.
f. 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 Village
ordinances, obtain any required permits from the appropriate City personnel.
5.2 Laws. Reeulations 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 standazds and
rules and regulations, and all other applicable governmental requirements, including, but not limited
to the standards of the Occupational Safety and Health Administration, the National Electrical Safety
Code, and the Village Electric Code.
5.3 Construction Bond Required. Prior to performing any work in the Public
Rights-of--Way, the Franchisee shall establish in the Village'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 an amount equal to the contractor's certified estimate
for the construction, or such other estimate of cost as is reasonably acceptable to the Village
Engineer and shall be in 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, within seven (7)
days of Village's 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 Village 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.
SECTION 6. INSURANCE AND INDEMNIFICATION.
6.1 Indemnification.
• a. Franchisee shall and does hereby agree to, save, indemnify and hold
the Village, elected and appointed offices, officers, boazds, 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
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• 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 Village 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 Village shall not extend to any claims solely caused by the negligence of the Village, elected and
appointed offices, officers, boards, commissions, legal counsel, employees and agents.
b. In all instances in which Franchisee is obligated to indemnify and
hold harmless the Village as provided for in this Agreement, Franchisee's obligation shall be
conditioned upon (i) the Village 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 Village as a basis for such
obligation, which notice shall be given within a reasonable time after the Village 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 Village's insurance carrier or excess
insurance carrier without jeopardizing the Village's available coverage.
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 bylaw;
b. comprehensive general liability insurance with minimum limits of
Two Million Dollazs ($2,000,000) as the combined single limit for each occunrence 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 Village may reasonably require.
• 6.2.1 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
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• Section 6.3 below. If Franchisee elects to self-insure, Franchisee shall provide to the reasonable
satisfaction of the Village administration, evidence demonstrating its financial ability to self-insure
the insurance coverage and limit requirements required under this Section.
6.3 Named Insureds. All certificates of insurance shall name the Village of
North Palm Beach as an additional insured.
6.4 Cancellation of Policies of Insurance. At least thirty (30) days prior written
notice shall be given to the Village 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 Village.
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, Village shall suspend this
agreement until such time as a new or renewed certificate is received by the Village.
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 Village Clerk, after approval by the Village, an annual bond or
corporate guazantee in the minimum sum of Twenty-Five Thousand Dollazs ($25,000.00) having as
a surety a company qualified to do business in the State of Florida, and acceptable to the Village by
and through its telecommunications counsel. The bond or guarantee 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 guarantee shall be famished 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 Village as a result,
including the full amount of any compensation, indemnification or cost of removal or abandorunent
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 guazantee required by this Section, the Village 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. DEFAULT.
8.1 Events of Default. Subject to Section 8.2 herein, Franchisee shall be in
default if, during the term of this Agreement, Franchisee fails to perform or observe any term,
covenant, agreement or condition of this Agreement, on the part of Franchisee, to be performed
within thirty (30) days after prompt written notice thereof from the Village, 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.
8.2 Notice and Cure. Neither party shall be in default under this Franchise or
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• 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.
8.3 Apaeal. Franchisee may appeal any determination of default either to non-
binding mediation or a court of competent jurisdiction.
SECTION 9. REMEDIES.
9.1 Remedies Not Exclusive. The rights and remedies of the Village 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.
9.2 Revocation. The Franchise may be revoked by the Village Council 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 Village shall give the Franchisee written notice, by certified mail at the last known
address, that Franchisee is in material violation of the Franchise or material breach of the Franchise
Agreement and describe the nature of the alleged violation or breach with specificity. For purposes
of this Subsection 9.2, the term "material" shall mean a substantial and major violation rather than
a temporary or minor violation of the Franchise, Franchise Agreement, or federal, state, local law
or ordinance. The Village shall make the final determination as to whether or not the violation is
material.
SECTION 10. MISCELLANEOUS.
10.1 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 Village 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.
10.2 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:
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• If to the Village: Village Manager
Village of North Palm Beach
501 U.S. Highway 1
North Palm Beach, Florida 33408
With a Copy to: Village Attorney
Village of North Palm Beach
501 U.S. Highway 1
North Palm Beach, Florida 33408
Franchisee:
With Copy to:
All Notices shall be deemed given on the day of mailing. 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.
10.3 Assienment or Transfer. Franchisee may assign this Agreement without
prior notice to or approval of the Village when such assignment is to: (a) a subsidiary 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. With respect to any
other prospective transferor assignment, written notice shall be provided to the Village Council at
least twenty (20) working days in advance of the date of such transfer or assignment. Prior Village
Council approval shall be required, with respect to any entity which succeeds to all or substantially
all of its assets whether by merger, sale or otherwise, before any transfer or assignment of this
Agreement shall become valid. Such approval shall not be unreasonably withheld, and such
approval shall be granted within twenty (20) working 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 ofnon-compliance by the Franchisee have
• been resolved or preserved to the Village's satisfaction.
10.4 Entire Agreement. This Agreement contains the entire agreement between
the parties. Neither party has made any representations except those expressly set forth herein, and
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• no rights or remedies are or shall be acquired by either party by implication or otherwise unless
expressly set forth herein.
10.5 Terminoloey. 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.
10.6 Caations. 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.
10.7 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.
10.8 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.
10.9 Counterparts. The Agreement maybe 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.
10.10 Governing L~ 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 15'h Judicial Circuit of Florida, or in the United States District Court for the Southern
District of Florida.
10.11 Attorneys Fees. Except as otherwise provided, Village and Franchisee agree
that if litigation becomes necessary to enforce any of the obligations, terms and conditions of this
Franchise, the prevailing party shall be entitled to recover a reasonable amount of attorney's fees and
court costs, including fees and costs on appeal, from the non-prevailing party.
10.12 Force Maieure. 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.
• 10.13 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
Page 12 of 14
• 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.
10.14 Independent Contractor Relationship. The relationship of Franchisee to
the Village is and shall continue to be an independent contractual relationship, and no liability or
benefits, such as worker's compensation, pension rights or liabilities, insurance rights or liabilities
or other provisions or liabilities, arising out of or related to a contract for hire or employer/employee
relationship, shall arise or accrue to either party or either party's agents or employees as a result of
the performance of this Agreement, unless expressly stated in this Agreement.
10.15 Severabilitv. 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]
•
Page 13 of 14
ATTEST:
VILL OF NO ALM BEACH
By:
[FRANCHISEE]
By: l
Q-
Name: ~ • L S"~~aYl(Y1
Title: ~.~~~
Page 14 of 14
Appr d as to form & le 1 su i
By:
illage orney