HomeMy WebLinkAbout026756 ORD - 04/25/2006ORDINANCE
APPROVING THE AGREEMENT FOR SERVICES BETWEEN
THE CITY OF CORPUS CHRISTI AND THE CC DIGITAL
COMMUNITY DEVELOPMENT CORPORATION REGARDING
WI -FI NETWORK
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF CORPUS
CHRISTI, TEXAS:
SECTION 1. The City Manager is herby authorized to execute on behalf of the
City of Corpus Christi the Agreement for Services Between the City of Corpus
Christi and the CC Digital Community Development Corporation, a substantial
copy of which is attached hereto as Exhibit A and incorporated herein.
SECTION 2 That upon written request of the Mayor or five Council members,
copy attached, the City Council (1) finds and declares an emergency due to the
need for immediate action necessary for the efficient and effective administration
of City affairs and (2) suspends the Charter rule that requires consideration of
and voting upon ordinances at two regular meetings so that this ordinance is
passed and to s effect upon first reading as an emergency measure this the
'II' day of ` 2006.
ATTEST:
Armando Chapa
Secretary
APPROVED: April 20, 2006
By.
Lisa Aguilar,
Assistant City Attorney
for City Attorney
THE CITY F CORPUS CHRISTI
Henry Garrett
Mayor
Corpus Christi, Texas
o16day of G/ . , 2006
TO THE MEMBERS OF THE CITY COUNCIL
Corpus Christi, Texas
For the reasons set forth in the emergency clause of the foregoing ordinance an
emergency exists requiring suspension of the Charter rule as to consideration and
voting upon ordinances at two regular meetings: 1 /we, therefore, request that you
suspend said Charter rule and pass this ordinance finally on the date it is introduced, or
at the present meeting of the City Council.
Respectfully..
Respectfully.
He ry Garrett
Mayor
Council Members
The above ordinance was passed by the following vote:
Henry Garrett
Brent Chesney
Melody Cooper
Jerry Garcia
Bill Kelly
Rex A. Kinnison
Jon Marez
Jesse Noyola
Mark Scott
AGREEMENT FOR SERVICES
BETWEEN
THE CITY OF CORPUS CHRISTI
AND
CHE CC DIGITAL COMMUNITY DEVELOPMENT CORPORATION
Phis Agreement is made b■ and between the City of Corpus Christi, Texas (the "City "), a
home rule city under the Constitution of the State of Texas, and the CC Digital Community
Development Corporation (the "Corporation "), a non - profit corporation incorporated under the
provisions of Subchapter D, Chapter 431. Texas Transportation Code.
Recitals
[he purpose of this Agreement is to implement the City of Corpus Christi Citywide
integrated Wi -Fi Network for the purposes described in the City's Resolution No. 026635,
passed on January 31. 20(16 (the "Resolution" ). which authorized creation of the Corporation.
[he City has invested more than S7 million in infrastructure for the Network and
significant additional resources supporting development of the Network.
The City wishes te utilize the Corporation to focus on implementation of this highest
priority City protect
ARTICLE 1
DEFINITIONS
In addition to any ether teens defined within this Agreement, the following terms, when
used in this Agreement, shall have the meanings ascribed to them below in this Article 1, unless
the context clearly requires otherwise.
1.1 Authorized Representative any officer, agent, employee of or independent
contractor retained or employed by either party, acting within the scope of authority given such
person hN such part'
1.2 City Council the City Council of the City.
1.3 City Manager - the City Manager of the City, or his designee.
1.4 Commercial Partner - a Partner that uses the Network to offer or deliver goods and
services for profit, and shall include but not be limited to ISPs, WISPs, E- Commerce Services,
E- Business Services, seat management services, VoIP WiFi Network Services, WiFi AVL
Network Services, personal application portal services, text and video news providers, video
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vonferencrrig providers. online productivity solutions. radio frequency identification, and mobile
location tracking.
13 Community Partner - a Partner, such as a charity or non - profit group, that uses the
network to provide services that implement public purposes of the City.
1.6 Contractor - a person that contracts with the Corporation to provide goods or
services to support the Network including but not limited to operation, maintenance, upgrades,
expansions. management, network support. portal applications, and other goods or services.
1.7 Educational Partner - a Partner that is a school district, institution of higher
education. or other non - profit educational institution located within the boundaries of the City
that uses the Network to carry out its educational purposes.
1.8 Facilities al components of the Network, wireless or wired, equipment or
software, necessary to <_)peration of the Network, including but not limited to:
a! WiFi mesh Network; portal: fiber, other cable and WiMax backbone; Network
Operating Center; Network hardware and equipment; management equipment; routing
equipment; switches: Network management software; VLANS, IP Adressing, and OSS;
h) Network Bandwidth:
City real property and rights-of-way occupied by cable. equipment, or other apparatus
supporting the Network (including rights of ingress and egress);
d) the intra -City enterprise network, including components and services used in common
to deliver intra -City communications (for example, cellular telephone service) and
including wires from the enterprise network to particular City departments, but does not
Include devices used by City departments, including but not limited to, personal
computers, telephones, cellular telephones, printers. faxes. scanners, individual servers,
department software. local cabling. traffic signals. and mobile computers;
) office space sufficient to house equipment and personnel necessary to manage and
operate the Network; warehouse space sufficient for housing and staging equipment and
supplies, and other building space necessary to operations of the Network (along with
necessary furnishings), any of which may be provided by the City, through designation
by the City Manager, or otherwise acquired by the Corporation;
f) the fiber. equipment. and other apparatus depicted in Exhibit A (consisting of one page
entitled City Fiber Map and two pages entitled City of Corpus Christi Local and Wide
area Network), attached hereto and incorporated herein; and
g) all other property, real or personal, comprising the Network or supporting its
operation, as the Network presently exists or may be expanded or upgraded.
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1.9 Governmental Partner - a Partner that is the Federal Government, the State of Texas
a go ernmental subdivision of the State with boundaries inside the City limits of the City that
uses the ?Network to carry out the purposes for which it was created.
1.10 Internet the global information system that: 1) is logically linked together by a
globally unique address space based on the Internet Protocol (IP) or its subsequent
extensions-`follow -ons: 2) is able to support communications using the Transmission Control
i TCP /IP) suite or its subsequent extensions /follow -ons, and /or other IP- compatible protocols;
and 3) provides. uses or makes accessible. either publicly or privately, high level services layered
on the communications and related infrastructure described herein.
1.11 ISP - Internet Service Provider.
1.12 Maintain or Maintenance to keep up. preserve, and support the condition and
existence ,>f.
1.13 ,Network the City of Corpus Christi Citywide Integrated Network, a
communications network composed of integrated physical and logical elements, including both
wireless infrastructure and optical fiber connections, located within the boundaries of the City,
that links computers and networks of individuals and of government, academic and private
entities within the City. to each other and to the Internet, at a common, publicly - available portal.
1.14 :Network Bandwidth - the maximum amount of data that can be transmitted over the
Network in a period of time.
1.15 Network Capital Costs all costs of constructing, expanding and upgrading the
Network including payment or reimbursement for labor, services, material and equipment and
any other costs incurred it connection with the acquisition, construction, improvement or
installation of the improvements and facilities constituting the Network; all incidental costs
incurred in connection therewith including the cost of architectural, legal, engineering, appraisal,
accounting. financial, consulting, design. statistical, and other professional, technical and
supervisory services, all debt service, tees, charges, and expenses incurred in connection with the
authorisation, preparation sale. issuance and delivery of bonds or other debt instruments,
including all debt service ._tnd fees for financial, legal, accounting, and other professional
services: and all other costs, charges. fees. and expenses related thereto.
1.16 Network Operation and Maintenance Expenses - all expenses incurred in the
efficient and economical administration. management and operation and the maintenance of the
Network in good repair and operating condition, including the cost of salaries, wages, benefits
and other compensation for Corporation employees, contractual services for any aspect of the
administration. management and operation and maintenance of the Network; fees and expenses
for professional sere ices; ; nsurance premiums; materials and supplies used in the ordinary course
of business, including costs of ordinary and current rentals of equipment, costs of routine repairs,
replacements and renewals occurring in the usual course of business, costs of utility services;
advertising and public information about the Network; and all other costs and expenses of
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managing, operating, maintaining ;tnd repairing the Network arising in the routine and normal
course business.
1.17 Operate or Operation to conduct. direct. and manage.
1.18 Partner - a person that is given the right by contract to use the Network to provide
products, information. education. and other services to Users in accordance with the public
purposes of the Network. Partner Includes Commercial Partners, Community Partners,
Educational Partners, (ion ernmental Partners, subgroups of those Partners, and other discrete
groups that may be determined by the ( orporation.
1.19 Person - an individual, a partnership (limited or general), a limited liability
company, a corporation, an association. a joint stock company, a trust, a joint venture, an
unincorporated organization, an individual, or other legal entity or governmental entity.
1.20 User - a person, whether business, residential, or visitor, who shall have free access
(as provided in Section 5.4) to the portal of the Network to find and utilize services made
available thereon by the City and its Partners.
1.21 Purposes of the Network all of the public purposes recited in Section 1 of the
Resolution.
1.22 VoIP - Voice over Internet Protocol..
1.23 WiFi - wireless fidelity.
1.24 WISP Wireless Internet Service Provider.
1.25 WiMax - Worldwide Interoperability for Microwave Access.
ARTICLE 2
TERM
This Agreement shall be effective upon the last date of execution by a party hereto, and
shall continue in effect through July 31. 2016.
ARTICLE 3
GRANT BY CITY
3.1 Grant of Facilities. The City hereby grants to the Corporation the exclusive right
and authority to Operate, Maintain, extend, upgrade, use and control the Facilities as necessary to
Operate the Network for the Purposes of the Network. The City hereby leases to the Corporation
all the City's personal property comprising the Facilities, and hereby grants a license to the
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.orporation to use all the ity's real property and interests in real property comprising the
Facilities, The C itv will incidentally grant to the Corporation a franchise for use of the City's
ts-ot-way The (itv Manager is authorized to annually designate specific office, building,
and storage space on City property necessary for the Corporation's operations.
3.2 Assignment of Rights. The City hereby assigns and grants to the Corporation the
contracts and rights described in Exhibit B. attached hereto and incorporated herein, and all other
contracts and rights held by the City necessary to operation of the Network. The City Manager is
authorized to add to Exhibit B any omitted document that is subsequently identified.
3.3 Limit on Grants. The grants in this Article are limited by the City's interest in any
particular right or property . and do not purport to grant any greater interest.
3.4 Completion of Initial Network. The City will manage construction and installation
of the initial Network throughout the City. targeted for completion by August 1, 2006, and will
physically transfer control of the Facilities to the Corporation upon completion.
ARTICLE 4
PUBLIC SERVICES - PRIORITIES
4.1 City Services. City departments shall utilize the Network to provide improved
services at the lowest possible cost to residents.
4.2 Priority of Public Health and Safety. In administration of the Network, first
priority shall be given to the delivery ot police, fire, emergency medical, emergency
management, and other services that directly impact public health and safety, including
suspending all other uses of part or all of the Network until the public safety is restored, if
deemed necessary by the City_
4.3 Procedures. -[he Corporation shall develop appropriate operating procedures for
communication and implementation of priorities.
4.4 Third Party Operation. Should the Corporation enter into a third party agreement
for Operation of the Network. the ,Agreement shall require that the priorities in this Article 4 be
tollowed.
ARTICLE 5
GENERAL DUTIES OF THE CORPORATION
5.1 Corporation's Duties and Responsibilities. The Corporation shall have the duties
and responsibilities set forth in this Article.
5.2 Network Operation and Maintenance. The Corporation shall Operate and
Maintain the Network at a state of the art level.
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5.3 Network Upgrade and Expansion. The Corporation shall continuously upgrade
and expand the Facilities to provide service to every part of the City at a state of the art level. It
will continuously evaluate. plan, and keep the City informed of the future needs of the Network,
Including new services offerings, and shall manage the implementation of upgrades, expansions,
and new services_ The Corporation shall update Exhibit A to reflect all modifications.
5.4 Free Access to Network Portal. The Corporation shall assure that access to the
portal of the Network is free to all Customers. However, once a customer has accessed the
Network portal, the City cr a Partner may charge for access to a particular service.
5.5 Network Available to All. The Corporation shall promote, coordinate, facilitate,
produce. and assist in assuring that access to the benefits of the Network is available to
Customers of all economic means in all geographical areas within the City. In this connection,
the C'orporation shall, f financially feasible, establish a program to assist economically
disadvantaged citizens to - purchase equipment necessary to access the Network, and otherwise
assist citizens with training and other services to promote digital equity.
5.6 Information about Network. The Corporation shall inform City residents of the
Network and the services available to them on the Network. The Corporation shall develop and
implement a marketing plan, including advertising and other public relations activities. The
Corporation shall coordinate with Partners, advertisers, and others to promote full access to the
beneficial uses of the Network.
5." Training and Assistance. The Corporation shall promote training and technical
assistance that will enable all residents to utilize the Network and the Services available on the
Network, and may charge reasonable fees to recover the cost thereof.
5.8 Resource Center. The Corporation shall serve as a resource center for information,
materials and equipment relating to use of the Network.
5.9 Network Rules and Regulations. The Corporation shall establish and administer all
rules, regulations, policies. and procedures necessary to Operation of the Network.
5.10 Coordination. The Corporation shall coordinate use of the Network by City
departments and Partners. and shall resolve any conflicts that may arise between the City and
Partners and between Partners.
5.11 Security. The Corporation shall institute reasonable safeguards for the security of
the Network_
5.12 Privacy. The Corporation shall institute appropriate mechanisms to protect privacy
and confidentiality on the Network in accordance with law.
5.13 Small and Local Business Promotion. The Corporation shall explore how the
Network can be used to enhance the success of small businesses within the City and to enhance
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the success of businesses iirimarik owned by City residents, and may implement programs for
that purpose.
5.14 Network Purposes. The Corporation shall perform all the duties and
responsibilities set forth in this Agreement in accordance with the Purposes of the Network and
in accordance with anv additional purposes or directives that may be adopted by the City
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5.15 Improvement to City Efficiency and Services. The Corporation shall use the
expertise gained in its operation of the Network to continuously seek to identify technologies and
applications that will enable City departments to provide improved services at reduced cost, shall
call these to the attention of City management, and shall assist City management in
implementing them. City management and the Corporation will work cooperatively and
proactively to achieve full benefit >)f the Network in the delivery of City services.
ARTICLE 6
GENERAL POWERS OF THE CORPORATION
6.1 General Powers. The Corporation shall exercise all of its powers necessary or
convenient to the performance of the duties and responsibilities set forth in this Agreement.
Without limitation on the foregoing exercise of powers. certain specific powers are specified
below.
6.2 Contracting. The Corporation shall enter into contracts for design, engineering,
construction, procurement. financial, legal, and all other goods and services necessary for the
operation F_of the Network.
6.3 Funds and Property. The Corporation may acquire and receive funds and property
of any kind for support of the Network. including but not limited to, compensation from Partners,
advertising revenues, contributions from the City. purchase, conveyance, lease, gift, grant,
bequest, legacy, device, or otherwise. and may grant, convey, transfer, lease, sublease, license.
sublicense. mortgage. encumber and dispose of funds, property, and income therefrom in
furtherance of the Purposes of the Network. The Corporation shall serve as a receiving, holding
and disbursing entity for monies intended to promote electronic communications.
6.4 Operational Contracts; Minimal Staff. The Corporation and the City believe that
the Corporation can most effectively carry out its duties and obligations under this Agreement by
avoiding duplication of resources and by conducting day -to -day Operation and Maintenance of
the Network through contracts with Persons already possessing experienced staff and resources
relevant to needed Network services. Consequently, it is preferred that the Corporation not
employ Operational and Maintenance staff, rather it is contemplated that the Corporation will
carry out its Operational and Maintenance duties and responsibilities through service contracts
with private Persons and with the City. The Corporation may employ administrative staff, but
will work to keep any administrative staff to a minimum. For purposes of this Section 6.4, the
term "administrative staff is limited to general. overall administration and coordination of the
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Corporation's activities; administrative support to the Corporation's Board of Directors,
oversight of Contracts -,vith Partners and Contractors. sales and promotion of Network business,
Lind clerical assistance related thereto.
6.5 Manner and Means. The Corporation shall be solely responsible, in its discretion,
for the manner and means by which it carries out its duties and obligations under this Agreement.
6.6 Contracts with Other Cities, For adequate consideration, the Corporation may
contract with other cities t�. , participate in the Network, or to provide services to the other cities
for the creation and management of similar systems.
6.7 Intellectual Property Rights. The Corporation may develop all intellectual
propert y rights required for the advertisement, promotional activities, marketing and public
relations for the Network, the cost of all of which shall be an Operating Expense. Any and all
intellectual property rights shall be the sole and exclusive property of the City and the
"orporation.
6.8 No Sale of Property or Encumbrances. Except as provided in this Agreement, the
C corporation shall have no authority to sell or otherwise alienate the Facilities or the Network,
and may not create, assume or suffer to exist any mortgage, pledge, lien, charge, security
interest_ or other encumbrance against the Facilities or the Network, without the written consent
of the City
ARTICLE 7
AGREEMENTS WITH PARTNERS
7.1 Contracts with Partners. Based on the City Council's determination that
participation of Partners in the Network will multiply the benefits of the Network, the City
directs and authorizes the Corporation to negotiate and enter into license contracts for use of the
Network by Commercial Partners. Community Partners, Educational Partners, and Governmental
Partners. and other Partners that may be determined by the Corporation. The Corporation may
enter into one agreement with members of a Partner group or may enter into an agreement with
one member that represents the interests of a Partner group, where the Corporation determines
that such an arrangement would best serve the Purposes of the Network. The Corporation shall
actively seek Partners whose participation is especially likely to enhance jobs and economic
development in the community_ The terin "Partner" shall not include a legal relationship with
the City or Corporation in the nature of a partnership as a business entity.
7.2 Partner Contract Provisions. All contracts with Partners shall provide: 1)
substantially similar terms and conditions for all Partners similarly situated; 2) terms and
conditions for Partners later joining the Network that place them in an as equal a position as
possible with those joining earlier: 3) a five year term, unless the Partner contributes assets that
justify a longer term: 41 compliance with all rules, regulations, and policies governing the
Network; 5 i indemnity of the City and the Corporation from responsibility for any action of
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Partners, O) appropriate insurance for Partners naming the City and the Corporation as additional
Insureds. ') appropriate performance security; 8) disclaimer of any liability of the City or the
''orporation for any actions of Partners or disputes between Customers and Partners; 9)
acknowledgement by the Partner that the Corporation and the City shall have no responsibility
for content provided by the Partner or its users; 10) for assignment to the City; 11) no City
liability for acts and omissions of the Corporation; 12) termination of contract as only remedy for
a judicial determination 01 new legislation that City or Corporation lacks authority with respect
to any ,aspect of the Network 13) reference to the priorities in Article 4; 14) acknowledgement of
open meetings and records laws; 15) provisions to protect proprietary information of Partners;
and. 16 p other provisions determined appropriate by the Corporation.
7.3 Commercial Partners. Contracts with Commercial Partners shall provide for fair
compensation to the public for value received through use of Network bandwidth.
7.4 Community Partners. Contracts with Community Partners shall provide for fair
compensation to the publnw for value received through use of Network bandwidth, which may be
fulfilled by a commitment by each Partner to deliver services that carry out public purposes of
the Cit.
7.5 Educational Partners. Contracts with Educational Partners shall provide for
payment based on allocation of Network Capital Costs and Network Operational and
Maintenance Costs: provided, less than a full allocation may be charged during a phase -in
determined by the Corporation to serve the Purposes of the Network.
7.6 Governmental Partners. Contracts with Governmental Partners shall provide for
payment based on allocation of Network Capital Costs and Network Operational and
!Maintenance Costs: provided, less than a full allocation may be charged during a phase -in
determined by the Corporation to serge the Purposes of the Network.
7.7 Form of Contracts. The Corporation shall develop forms of contracts to be used for
similarly situated groups of Partners.
7.8 Equal Access for Partners. Subject to Network bandwidth capacity, contracts shall
be offered without unreasonable discrimination to similarly situated Partners. The Corporation
shall continuously monitor the adequacy of Network Bandwidth to meet the needs of the City
and Partners for speed and reliability, and shall establish a planning methodology for
determining the timing of upgrades and expansions to maintain the Network functioning at a
state of the art level
7.9 City Departments Not Partners. While City departments will utilize the Network,
they will not be considered Partners under this Article. The Corporation will enter into a
separate, annual contract with the City to govern City use of the Networkzservices and property
to be provided by the City. and other matters necessary to the administration of the Network.
ARTICLE 8
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PROCUREMENT CONTRACTS
8.1 Authorization for Procurement Contracts. The Corporation is authorized to
,contract with Contractors or the procurement of all goods, services, and property necessary or
convenient to operate. maintain. expand. and upgrade the Network, including but not limited to
�-onstruction, installation, equipment, facilities, professional services, leases, licenses, fiber, and
real or personal property. The Corporation will use the procurement process the Board deems
most economical, efficient. and advantageous for the Network.
8.2 Adverse Actions Regarding Bonds. To the extent the Corporation is given control
of monies derived from or Facilities financed through obligations, the interest on which is
intended to be excludable from the income of the holders thereof for federal income tax
purposes, the Corporation shall take all actions necessary to ensure that the interest payable on
the obligations is and remains excludable from the income of the holders thereof under the
internal Revenue Code of 1 986. as amended, and regulations promulgated thereunder.
8.3. Bonds To Be Approved By City. The Corporation may not issue bonds, notes or
other debt obligations extending beyond the current fiscal year without approval of the City
Council be. resolution.
ARTICLE 9
INITIAL FUNDING AND STAFFING
In order- to implement the Network at the earliest possible time, the City may advance
funds prior to the fiscal year commencing August 1, 2006, as it deems necessary, as start up costs
to operate the Network as provided in this Agreement, and shall provide staffing for the
Corporation through the corporate officers identified in the Corporation's Bylaws and their
designees. The Corporation shall develop a plan for reimbursing the City for the start up costs
Including the actual staff costs of the City, and reimbursement shall be implemented as part of
the Corporation's annual budget submission under Article 11. No reimbursement for cost of
City staff shall be made until the City presents an itemized invoice to the Corporation. The
orporation Board ma' review the invoice, and request any reduction believed appropriate.
After considering any request by the Corporation Board. the City Council's determination of the
amount of the invoice ,hall be tin&
ARTICLE 10
FUNDING OF NETWORK
10.1 City Funding and Support. Each year, from August 1, 2006 through July 31,
2011, the City will pay the Corporation $2,500,000 in consideration of the Corporation's
obligations as provided in this Agreement. In addition, for the first fiscal year the City will
contribute $1,000,000 to fund staff, insurance, and other costs necessary for start-up operation of
the Network; after the first fiscal year. the City may continue such support on a declining basis,
as it deems necessary. If revenues are available, these additional contributions will be
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reimbursed to the City under a mutually- agreed repayment schedule. The City's contributions
i11 he reflected each year in the Corporation's budget. After the first five years, the City and
the Corporation will renegotiate support that may be provided by the City.
10.2 Funding Sources. It is expected that the Network will be supported by payments
from the City as described in Section 10.1 and payments from Partners for their usage of the
Network and by advertising revenues. The Corporation may institute other funding such as fees
for communication - enhanced services. use of infrastructure assets. and other services and assets.
The Corporation is authorized to seek funding from other sources such as government or
foundation grants and loans. The City may, at its discretion, contribute additional funding.
Funds received by the Corporation may only be used for the purpose of fulfilling its obligations
under this Agreement. The City will pay debt service on the obligations sold to finance the
Initial cost of construction the Network. The Corporation will reimburse the City for the portion
>f each such payment that is determined by multiplying it by a fraction the numerator of which is
'+5,900.000 and the denominator of which is the total principal financed.
10.3 Negotiation of Payments. The Corporation shall negotiate payments from
Educational Partners, Government Partners, and Community Partners for use of the Network that
are calculated to reimburse the Corporation for Network Capital Costs and Network Operation
and Maintenance Costs. and shall negotiate payments from Commercial Partners that reflect
market al ue of their- use c f the Network. Payments shall be without unreasonable
discrimination to similarly- situated Partners.
10.4 Obligations Subject to Available Funds. The obligations of the Corporation
under this Agreement, including upgrades and maintenance, are subject to available revenues.
The Corporation will endeavor to fund its obligations from revenues generated through operation
of the Network. However if necessary for it to carry out all of the duties and responsibilities
required of it in Article 5, the Corporation shall request the City to contribute funding in addition
to the City's payment described in Section 10.1. A request for such additional funding shall be
made as part of the Corporation 's annual budget submission pursuant to Article 11, shall identify
ind fully describe the duties and responsibilities that will not be fulfilled without the
- contribution, and shall provide an estimate of cost savings to City operations from the activity
funded that may offset the additional contribution. If it is expected that future Network revenues
will be sufficient to reimburse the requested contribution, the request will include a schedule for
reimbursing the City for its additional contribution. All obligations of the City under this
agreement are subject to appropriation for each fiscal year.
ARTICLE 11
ANNUAL BUDGET
11.1 Fiscal Year. The Corporation shall use the same fiscal year as the City.
11.2 Submission of Budget to City. Each year, by the date requested in writing by the
City Manager, the Corporation shall submit its proposed operating budget and five -year capital
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budget to the City Manager, who shall forward it to the City Council. The date in 2006 for
submitting the Corporatio -?'s initial budget shall be deferred to a date directed by the City
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11.3 Reimbursements to City. The budget shall provide for reimbursement to the City,
as provided elsewhere in this Agreement. for advances of funding and services furnished by the
City.
11.4 Approval b:k City. The Corporation's proposed operating and capital budget will
he reviewed and approved or modified by the City Council during the City's regular budget
process The budget, as approved or modified by the City Council shall be final.
11.5 Operations within Budget. The Corporation shall operate and manage the
Network within the overall limits of the approved budget_
ARTICLE 12
INDEMNIFICATION
12.1 Definitions for Article. The following terms. as used in this Article 12, shall have
the following meanings:
A) -City- includes the officers, employees. and agents of the City, as well as the City.
h) "Claims" means all damages, losses, injuries. liabilities, penalties, disbursements,
_osts, charges, assessments, and expenses (including attorneys' fees, experts' fees and
expenses incurred in investigating. defending. or prosecuting any litigation or
proceeding). assertions. demands, litigation. suits, proceedings, causes of action (whether
,n tort or contract or in law or at equity), or judgments.
,.!) "Defend' means to provide and pay for the legal defense of the City against a Claim
with counsel reasonably acceptable to the City.
d) " Indemnify' means to protect the City against a potential Claim and /or to compensate
the City fora Claiin actuallV incurred.
e) -Waite" means to knowingly and voluntarily relinquish a right and /or to release
another part} from liability in connection with a Claim.
12.2 INDEMNITY BY CORPORATION. TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, THE CORPORATION SHALL INDEMNIFY
AND DEFEND THE CITY AGAINST ALL CLAIMS ARISING, OR ALLEGED TO
ARISE, FROM THE CORPORATION'S (1) PERFORMANCE OF ITS DUTIES AND
OBLIGATIONS UNDER THIS AGREEMENT, (2) BREACH OF THIS AGREEMENT,
OR (3) VIOLATION OF OR FAILURE TO COMPLY WITH APPLICABLE LAW.
THIS OBLIGATION TO INDEMNIFY AND DEFEND WILL NOT BE AFFECTED BY
THE ACTIVE OR PASSIVE ORDINARY NEGLIGENCE OF THE CITY, WHETHER
OR NOT LIABILITY WITHOt T FAULT OR STRICT LIABILITY IS IMPOSED OR
SOUGHT TO BE IMPOSED ON THE CITY.
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12.3 WAIVER BY CORPORATION. TO THE FULLEST EXTENT
PERMITTED BY .4PPLICALE LAW, THE CORPORATION WAIVES ALL CLAIMS
THAT IT MAY HAVE AGAINST THE CITY FOR CLAIMS ARISING, OR ALLEGED
TO ARISE, FROM THE CITY'S (1) PERFORMANCE OF ITS DUTIES AND
OBLIGATIONS UNDER THIS AGREEMENT, (2) BREACH OF THIS AGREEMENT,
OR (3) VIOLATION OF OR FAILURE TO COMPLY WITH APPLICABLE LAW. THIS
WAIVER WILL NOT BE AFFECTED BY THE ACTIVE OR PASSIVE ORDINARY
NEGLIGENCE OF THE CITY, WHETHER OR NOT LIABILITY WITHOUT FAULT
OR STRICT LIABILITV IS IMPOSED OR SOUGHT TO BE IMPOSED ON THE CITY.
12.4 General Scope of Indemnities and Waivers. The Indemnities, Waivers, and
obligations to Defend in this Article 12 are independent of, and will not be limited by each other
any insurance obligations in this Agreement (whether or not complied with), and will survive
the Contract Expiration Date until all related Claims against City are fully and finally barred by
applicable law
ARTICLE 13
INSURANCE
13.1 Insurance Maintained by Corporation. The Corporation shall obtain and
maintain in effect the following policies of insurance:
a) Workers' Compensation. Such workers' compensation insurance coverage as may be
required by 1aw, or deemed prudent by the Corporation, including at least $100,000
Bodily Injury by Accident each Accident, $100,000 Bodily Injury By Disease each
employee, and $500,000 Bodily Injury by Disease Policy Limit;
11) Commercial General Liability. Commercial general liability insurance with a limit of
at least $1.000.000 Combined Single Limit insuring against all liability of the
E'olporation and its Authonzed Representatives arising out of and in connection with the
Corporation's duties and obligations under this Agreement.
L) Commercial Business Automobile Liability. At least $1,000,000 Combined Single
1_imit arising out ot.the operation, maintenance or use of owned and non -owned
_automobiles or other vehicles.
d) [ imbrella Liability. At least S2,000.000 per occurrence of umbrella liability coverage
,vvritten on an occurrence basis_
e) Professional Liability. At least $1,000,000 per claim and $1,000,000 aggregate;
r`) Crime and Fidelity Coverage At least $500.000 per occurrence of coverage for 1)
employee dishonesty, 2) forgery or alteration, 3) theft, disappearance and destruction, 4)
robbery and sate burglary, and 5) computer fraud; and
g) Other ('overages. Such other insurance coverages as may be required by the City's
Director of Risk Management.
The form of the above insurance policies shall be subject to review and approval by the City's
Director of Risk Management. Said Director may modify the requirements for coverage
provided herein based on review of risks and market conditions.
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13.2 Insurance Requirements. All insurance required under this Agreement shall be
issued by insurance companies licensed to do business in the State of Texas with the financial
rating of at least A status as rated in the most recent edition of Best's Insurance Reports, shall
be issued as a primary policy, shall contain an endorsement requiring sixty (60) days written
notice from the insurance .: ompanies to the City and the Corporation before cancellation, non-
renewal. termination, or change in the coverage, scope or amount of any policy, and shall name
the Cif) as an additional insured. Each policy shall he evidenced by a certificate of insurance. A
certificate of insurance and a copy of each policy shall be provided to the Director. The form
and substance of each certificate and policy must he acceptable to the Director.
13.3 Waiver of Subrogation. Fhe parties release each other and their respective
Authorized Representatives from any claims for damage to any person, the Network, the
Facilities or any or any other real or personal property of the City or the Corporation that are
caused by or result from risks insured against under any insurance policies required or permitted
to be carried by the parties under this Agreement. The parties agree to cause the issuers of the
insurance policies required to be maintained by them hereunder to include waivers of the rights
ofrecov ery and subrogation.
13.4 Property Insurance. The City shall maintain a policy of commercial property
insurance on the Facilities If the facilities, or part thereof, are damaged or destroyed, the City
will determine whether repairs and restoration are practicable and feasible and will inform the
Corporation in writing of its decision within 120 days following the date of such damage or
destruction. If a decision s made to repair and restore the Facilities, the Corporation shall
submit a revised budget to the City for approval based on the changed circumstances. A decision
by the City to not repair and restore the Facilities shall constitute termination of this Agreement.
all proceeds of any property insurance paid for by the City shall he the exclusive property of the
itv
ARTICLE 14
DEFAULT AND REMEDIES
14.1 Events of Default. The occurrence of any of the following events shall constitute
an "Event of Default" by the Corporation under this Lease Agreement.
a) Failure of the Corporation to comply with any term, condition or covenant of this
1_.ease Agreement, and the continuation of that failure for a period of thirty (30) days after
he City's delivery of written notice thereof to the Corporation;
h) The filing of a petition by or against the Corporation (1) in any bankruptcy or other
insolvency proceeding; (2) seeking any relief under any state or federal debtor relief law;
or (3) for the appointment of a liquidator or receiver for all or substantially all of the
`c'orporation's property or for the Corporation's interest in this Agreement; or
:) The assignment or transfer of this Agreement or any of the Corporation's rights or
interest therein. whether by voluntary assignment, involuntary transfer or operation of
law, without the prior written approval of the City Council
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14.2 Remedies. On the occurrence of an Event of Default, the City may pursue any one
more of the following remedies without any notice or demand whatsoever, except as
)therwtse indicated
Terminate this \greement by giving written notice of termination to the Corporation,
which event the Corporation shall immediately surrender the Facilities to the City.
h) Re -enter the Facilities without terminating this Agreement, and, without being liable
for any damages, whether caused by the negligence of the City or otherwise, and do
whatever the Corporation is obligated to do under this Agreement.
ARTICLE 15
MISCELLANEOUS PROVISIONS
15.1 Books. "I he Corporation shall maintain books of account with respect to its
management and operation of the Network in accordance with generally accepted accounting
principles applicable to the Corporation.
15.2 Audit. The lorporation shall be subject to the annual audit contracted by the City,
and shall reimburse the City for the audit expenses related to the audit of the Corporation.
15.3 Reports to City. The Corporation shall provide written periodic reports as
requested by the City Council, describing the Corporation's performance of obligations under
this Agreement, including actual and projected expenses and revenues, and shall promptly
provide such additional information as may be requested by the City Manager or City Council at
any time. The reports shall include a section jointly developed by the Corporation and the City
Manager describing usage by City departments of the Network, and the reductions in cost and
improvements in services resulting therefrom. The Corporation shall make presentations at City
Council meetings as may he requested by the City Council.
15.4 Advisory Committees. The Corporation shall establish an advisory committee or
committees composed of discrete Partner groups to receive their input and recommendations
about the design and operation of the Network. and may include other groups with a particular
interest in the operation of the Network
15.5 Open Meetings and Records. The Corporation shall comply with the Texas Open
=Meetings Act and Public information Act
15.6 Compliance with Laws. The Corporation shall comply with all applicable federal,
state, and local laws and regulations.
15.7 Discrimination Prohibited. The Corporation shall not discriminate against any
employee or applicant for employment in violation of federal, state or local law because of age,
race, creed, sex, color. disability, or national origin, and shall take affirmative action to ensure
that any employee or applicant for employment is afforded equal employment opportunities
without discrimination because of age, race, creed, sex, color or national origin. Such action
shall be taken with reference, but not he limited to. recruitment, employment, job assignment,
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promotion. upgrading, demotion, transfer. layoff or termination, rates of pay or other forms of
,.ompensation in selection for training or retraining, including apprenticeship and on the job
,raining subject to compliance with such obligations. and other obligations under this
agreement. the Corporation shall have plenary power with respect to the hiring and discharge of
its emplo■,ees
15.8 Minority Participation. f he Corporation shall comply with applicable City
minority, women and disadvantaged business enterprise policies in performing Corporation's
()bligations hereunder. which policy consists of an obligation on the part of the Corporation to
use its reasonable efforts to achieve a level of minority participation in the Corporation's
employment practices and in respect to contractual relations for the provision of goods and
services for the Network.
15.9 Assignment. The Corporation shall not voluntarily assign or encumber its interest
in this Agreement without first obtaining the City's written consent.
15.10 Obligations of Corporation Not Obligations of City. The obligations of the
Corporation shall not be those of the City unless expressly assumed by the City in writing
through authorized action
15.11 Economic Development Program. The City Council declares that the creation of
the Network and the duties and responsibilities of the Corporation with respect thereto as
described in this Agreement are pursuant to a program to promote state and local economic
development and to stimulate business and commercial activity in the City established by the
City Council pursuant to Section 350.00 E . Texas Local Government Code.
15.12 Assumption of Powers and Duties. Pursuant to Texas Transportation Code
Section 431,104. the City !:_'ouncil may assume the powers and duties of the Corporation; upon
lssumption the City shall assume the assets and liabilities of the Corporation.
15.13 Income of (' orporation. Pursuant to Texas Transportation Code Section 431.107,
the City is entitled at any time to receive any income earned by the Corporation that is not
needed to pay the Corporation's expenses or obligations. The earnings of the Corporation may
not benefit a private interest.
15.14 Relocation of Facilities. The City reserves the right to construct, maintain, and
modify City -owned property for City operations. including but not limited to street
improvements. Upon reasonable, written notice by the City, the Corporation shall temporarily or
permanently remove. relocate, change, or alter the Facilities as required by the City. The
required work shall he at the Corporation's expense.
15.15 Notices. Any notice or other communication required or permitted to be given
under this Agreement shall be in writing and deemed to have been duly given if and when
delivered personally (with receipt acknowledged) or otherwise actually received by the intended
recipient, or three (3 ) days after mailing the same (by certified mail, return receipt requested)
with proper postage prepaid, or when sent by a national commercial courier service (such as
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Federal Express. L- PS. or )HL} for expedited delivery, to be confirmed in writing by such
courier, or when telecopied, telegraphed or telexed to a party, at such party's address set forth
below or at such other address as 3 part, may designate by notice given to the other in
accordance with the foregoing.
lo the City
Mr. George K. Noe
City Manager
Cite of Corpus Christi
1201 Leopard
P O Box 9277
Corpus Christi, Texas 78469 -9277
Phone: 36 °. /880 -3220
Fax 361/826-3839
/826 -3839
lo the Corporation
Chairman of the Board of Directors
c/o Armando Chapa, Secretary
CC' Digital Community Development Corporation
1201 Leopard
P_0, Box 9277
Corpus Christi, Texas 78469 -9277
Phone: 361'826-3105
Notice shall, in all events. he effective upon receipt by the addressee except that notice by
facsimile electronic transmission shall, if received after 5:00 p.m. or any day which is not a
business day, be deemed received on the next following business day.
15.16 Amendments. This Agreement may be amended only by a written instrument
signed by both parties. The City Manager is authorized to agree, on behalf of the City, to
administrative amendments that do not change the substance of this Agreement.
15.17 Title and Captions. All articles or section titles or captions in this Agreement are
for convenience of reference only. They shall not be deemed to be part of this Agreement or to
n any way define, limit, extend, or describe the scope or intent of any provision of this
Agreement. Except as specifically otherwise provided. reference to "Articles" and "Sections"
are to Articles and Sections to this .Agreement.
15.18 Pronouns and Plurals. Whenever the context may require, any pronoun used in
this Agreement shall include the corresponding masculine, feminine or neuter forms, and the
singular form of nouns, pronouns and verbs shall include the plural and vice versa.
15.19 Applicable Law. This Agreement shall be governed by, and construed and
enforced in accordance with, the laws of Texas. The district courts of Nueces County, Texas
17
shall be the exclusive place of venue for any disputes arising under or with respect to this
\green ent
15.20 No Third Party Beneficiaries. This agreement is entered into solely for the
'benefit if the City and the Corporation, and is not intended and shall not be construed as a
contract for the benefit of any third party. including, without limitation, any User, Contractor,
employee or Partner
15.21 Severability. Each provision of this Agreement shall be considered severable and,
It; for any reason, any such provision or any part thereof. is determined to be invalid and contrary
to any existing or future applicable law. such invalidity shall not impair the operation of or affect
those portions of this Agreement that are valid, but this Agreement shall be construed and
enforced in all respects as if the invalid or unenforceable provision or part thereof had been
,)mitted
15.22 Entire Agreement. This Agreement contains the entire agreement of the parties
and supersedes all prior and contemporaneous agreements and understandings, oral or otherwise,
among the parties with respect to the matters contained in this Agreement and may not be
modified or amended except as set forth in this Agreement.
(EXECUTION PAGE AND EXHIBIT A and EXHIBIT B FOLLOW)
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Executed In duplicate originals on this the dav of , 2006.
TY (IF ORP1r‘> HR;STI
George K. Noe, Cit) Manager Date
Attest:
Armando Chapa. City Secretary
Approved as to legal tOrm. April 8, 2006
Lisa Aguilar
Assistant City Attorne
For Cit., Attorney
CC DIGITAL COMMt1N1TY DEVELOPMENT CORPORATION
By: Date:
Bud Harris, Chairperson
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Exhibit A
DEPICTION OF FACILITIES
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EXHIBIT B
ASSIGNED CONTRACTS AND RIGHTS
Contract between Northrop Grumman Information Technology, Inc. and City of
Corpus Christi. Texas, 2005 -394, 08- 23 -05, M2005 -280.
Wi -Fi Facility License Agreement Between AEP -Texas Central Company and
City of Corpus Christi, approved by City Council on April 25, 2006.