HomeMy WebLinkAbout027099 ORD - 12/19/2006AN ORDINANCE GRANTING TO EARTHLINK, INC. A NON - EXCLUSIVE ONE YEAR
FRANCHISE TO OPERATE, MAINTAIN, CONSTRUCT, EXTEND, AND UPGRADE
FACILITIES OF A WIRELESS NETWORK IN THE PUBLIC RIGHTS -OF -WAY
WHEREAS. the ( ity of t `orpus Christi. Texas (the "City ") and EarthLink. Inc. (the
-Grantee-) contemplate entering into an agreement (the "Agreement ") whereby certain assets of the
it,. of Corpus Christi Citywide Integrated \\' i- Fi Network will be transferred to Grantee in
consideration of cash and commitments of Grantee beneficial to the City's purposes for the
Ne work n iade h. Grantee entering into an agreement with the CC Digital Community
)e. eloprnent Corporation the "Corporation") to provide certain network access to the City as
managed hw the Corporation ("Network Services Agreement"): and
WHEREAS, for implementation of the Agreement, the City and the Grantee desire that the
_ram a franchise for the Grantee 10 use the City right -of -way and other property as provided
ter _'It'
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY
OF CORPUS CHRISTI, TEXAS:
SECTION 1. The t_'it} hereby grants to the Grantee a non - exclusive franchise to acquire,
construct. install. operate. inaintair-., extend, and upgrade facilities of its wireless network (the
--Network") in, over, under and across the public rights -of -way of the City, including, without
=imitation. the installation of radios_ the right to erect poles or other structures for attachment of
.adios.. and the right to access. use. and install fiber, The City hereby grants Grantee the non-
exclusive ri,uht to use any easements and rights- of-way owned or controlled by the City for access
�� tits owned property or third part'. property (subject to Grantee obtaining approval from the third
hare, property owner) insofar as consistent with the City's right in the easement or right -of -way and
::onsisten' with and subordinate to the primary purpose and use of the easement or right -of -way.
SECTION 2. The term of the franchise shall commence on the effective date of this
ranchise and shall continuo in effect for one vear unless superseded by the commencement of a
onger -term franchise
SECTION 3. During the h rm. the City hereby grants to Grantee the continuing right to
_onnect to, transmit through and use in connection with the Network the fiber optic transmission
system owned or leased by the City in connection with the Network ( "Fiber System ") in accordance
,tiith standards and protocols in the Aetvyork Services ,ie\greement or agreements incidental thereto.
!he City hereby authorizes the Corporation to cooperate with Grantee in Grantee's access of the
itii 1 ibex and to execute such additional agreements designating the speed and number of lines of
the Fiber stem lot Grantee's use and related charges, if any, without the necessity of further
tppm', als hi, the City Council ("Leased Fiber "). Provided, however, nothing herein shall prevent
he =,.iry from conveying the Fiber Sy stem or any part thereof to the Corporation.
SECTION 4 During the "1 erm. the City hereby grants to Grantee the continuing right to
i:onnect to. transmit through and use in connection with the Network the wireless assets owned or
cased by the City ("City `wireless Assets ") in accordance with standards and protocols in the
Network Services Agreement or agreements incidental thereto. The City hereby authorizes the
orporativn to cooperate v, ith Grantee in Grantee's access of the City Wireless Assets and to
.execute such additional agreements designating the speed and other specifications and charges, if
and .
without the necessity of further approvals by the City Council. Provided, however, nothing
herein shall prevent the City from conveying the City Wireless Assets or any part thereof to the
',..orporatior..
SECTION 5. :the City owns. operates and maintains certain assets, such as building
rooltnps. radio towers. and data center or collocation facility locations (collectively, the
Premises During the Term. the ('itv hereby grants to Grantee the continuing right and license to
Operate the Network on such Premises and to access. and install directly onto or within any part of
he Premises and operate and maintain radios, antennae and other devices in the number designated
tirantce and to the co- location of equipment and telecommunications lines and circuits ( "Co-
Heated Dew ices ") on the Premises as set forth in an applicable Antennae Site Use Agreement that
.de= }tides the particular Premises and locations thereon that are appropriate for the installation of
uc= i1ev=ccs considering the character and use of the Premises. The City hereby authorizes the
orporation with respect to: Premises under its control or the City Manager to cooperate with
irantee irantec'r access and use of the Premises. and to execute such additional agreements
ies,gnating the specific Premises and related rental amounts mutually agreed upon by Grantee and
he t'orporation or the (it) Manager ("Antennae Site I :se Agreement").
SECTION 6. As compensation for the rights and privileges herein conferred, Grantee shall
pa) monthly to the Corporation a payment based upon a revenue share for the access services
pro v ided to customers through the Network; provided however, Grantee shall pay to the
orporation separate payments for the Leased Fiber and the Premises. The revenue share for the
access services will equal a percentage between three and five percent (3 -5 %) (as specified in the
Network Services Agreement) of Grantees total gross receipts collected and received by Grantee
ri)r the applicable wireless :access retail. 'wholesale and occasional use services provided via the
Network ork in the City. ind in the City.; extra- territorial jurisdiction locations covered by the Network
less any applicable sales taxes or government required fees, (ii) less refunds, credits and charge -
backs. (ii: less any amounts paid hi, the t_7ity or the Corporation to Grantee ( "Access Revenue ").
\(ress Revenue does not include ices for add -on products" CPT', installation, advertising, content,
counties and referral fees. fees for sales through Internet commerce sites, VoIP or other voice
ap hilitics <except as may be agreed in he Network Services Agreement). The revenue payment
hat
be due and payable by electronic funds transfer as mutually agreed upon by the Corporation
nd 6-antce in the Aelkvork - ervices Vrcement.
SECTION ". 1'he ( city herehv grants to Grantee the right to install, operate and maintain
Mlle Network and the related communications equipment on the City street lights, traffic lights and
onneetine nardware and poles ("City Poles ") in accordance with standards and protocols in the
Network Services _Agreement or agreements incidental thereto, which will assure location and
installation consistent with public health and safety, Prior to final adoption of this ordinance,
irantce vvili provide the City with its anticipated plans for mounting sites, and other assets and
?aciities, including. but not limited to. communications towers_ light standards, utility poles,
billboards and building rooftops. whether owned or not owned by the City, and the City will inform
r.; irantee of approvals required, if an other than this franchise, and the process therefore, and will
i:ertily that no other approvals are tequired. Submission of any such anticipated plans will not
iegt, rc Grantee to install on any particular location or prevent Grantee from altering its as -built
Hans. For expansions and changes daring the term of this franchise. upon notification from Grantee
he v, i1= promptl. notiV Grantcc of approvals required, if any, and the process therefore. By
agreement, the City,- will charge the Corporation with the duty to assist Grantee in obtaining any
changes required. to promptly contact and work with City staff to facilitate the rapid issuance of any
required approvals. and to educate pertinent City staff on Grantee's rights under this franchise.
SECTION 8. The City hereby authorizes the Corporation to negotiate and enter into a
'Newyork Services ..\greement with the Grantee, whereby the Corporation and Grantee will
,:ooperate y.ith one another as Grantee acquires, constructs, installs, operates, maintains, extends,
ate upgrades facilities of it': Network in the City and the Grantee will provide certain services via
he Network for the (H t.\ 's or Corporation's benefit to be managed by the Corporation. The City
aer_h., grants the Corporation all rights_ licenses, permits and authorizations necessary to manage
my service, provided by the Grantee tar the benefit of the City pursuant to the Network Services
ygyeerne! t. as more particularly described in an agreement between the City and the Corporation.
SE( TION 9. l'he Network Services .-Agreement shall obligate Grantee to maintain
adequate hooks and record; relating to its payment obligations under this franchise for four (4)
ears from the date the payment v as made. Grantee shall file annually with the Corporation a
statement w' Network access revenues lug that annual period attributable to the operations of the
irantee's Network pursuani to this franchise ordinance. The Corporation and the Grantee may
�gr�c fo r,:'cords and audit procedure . in the Network Services Agreement.
SECTION 10. All construction. excavation, disturbance, or obstruction of rights -of -way
,hail he carried out according to applicable federal, state, and local laws, and according to the
-cgiiirements of the Director of h:ngineering Services of the City, including requirements to relocate
orporatiun facilities and to repair of restore City property, at the Grantee's expense.
SECTION 11. The t grantee shall carry out its operations under this franchise in compliance
ith ail valid federal. state..ind local laws. Nothing in this franchise shall be construed to contract
Jway any City police power to regulate and legislate to protect and promote the public health,
afet;
an w elfare
SECTION 12. -Mc Grantee shall carry out its operations in compliance with all of the
terms and conditions afthe Network Services Agreement.
SECTION 13. In addition to all rights of the City, at law or in equity, to enforce the terms
of this franchise, the City may forfeh and terminate this franchise in the event of termination of the
Net'4 ork Services Agreement in accordance with the terms of the Network Services Agreement.
SECTION 14. Neither Grantee nor the City shall be excused from complying with any of
the leans and conditions of this franchise by any failure of the other party on one or more occasions
to enforce compliance with such terms and conditions.
SECTION 15. Interpretation of this franchise and the rights and duties created hereunder
shat; be pursuant to the constitution and laws of the State of Texas and the charter and ordinances of
the t'ity. Venue for actions concerning any matter or controversy growing out of or incident to the
duties and obligations in this franchise shall he in the state or federal courts of competent
irisdictior in Nueces Count' , Texas
SECTION 16. This franchise may be transferred in accordance with the City charter.
Further, Grantee can assign this Agreement pursuant to the sale of all or substantially all of the
assets or stock of Grantee or pursuant to the sale ()Call or substantially all of the assets or operations
of the division of Grantee that is operating the Network. Provided, the City shall be promptly
rtotilied in writing of any such assignment with such notification accompanied by documentation
demonstrating that the assignment falls within the requirements of the preceding sentence. Grantee
ma, enter into one or more agreements fir- installation of the Network, operation of the Network, or
both with one or more entities. Equipment used to provide the Network may be leased by Grantee
rncor be subject to securit' interests of v endors or lenders. and. after the Agreement is entered into
w h�° Cite and Grantee, the City shall hake no rights in or to any equipment related to or used in
. onnecti(n with the Network. Pro\ ided_ however. upon expiration or termination of the Network
Services - \greement. disposal of the equipment shall he in accordance with the Network Services
\g:tec°ment
SE(TION 17, if for any reason any section. paragraph, subdivision, clause, phrase, word
or provision of this ordinance shall he held invalid or unconstitutional by final judgment of a court
of .ompetent jurisdiction. it shall not ;effect any other section, paragraph, subdivision, clause,
phrase, word or provision or this ordinance. for it is the definite intent of the City Council that every
,ecaon, paragraph. subdivision_ clause- phrase, word or provision hereof be given full force and
.: f . cat for its purpose. provided. however. that this paragraph does not apply should the
.:onrpensation provided to the City hereunder he held invalid by final judgment of a court of
- ompetent jurisdiction after all appeals. i f any. and the City may in that even declare this franchise
nul and ord. If any delegation of authority made herein shall he held invalid or unconstitutional
court oi competent .jurisdiction. authority shall be deemed vested in the appropriate authority to
xercrse the delegated authority. and his ordinance shall be otherwise unaffected.
SE:(TION 18. The irantee shall pay all costs of publication of notice of this ordinance as
required by the City charter
SECTION 19. This franchise ordinance shall take effect when all of the following
,:onditions have been met: ) it has heen executed by the parties; 2) the parties or the Corporation
and Farthl, ink hake executed the Network Services Agreement, 3) the parties have executed the
`vgreernent, and 4) the Cite and the Corporation have entered into an agreement granting the
'orporati,)n all rights required or appropriate to perform as contemplated in this Franchise.
4
1 hat the loregoing ordinance was read for the first time and passed to its second reading on this
the it`day of Afove, ,- . ?OO6. by the following vote:
(larett
Brent Chesney,
J .h
F M arez
Melody Cooper
Jerry, Garcia
Bill Kelly
Rex A. Kinnison
Jesse Novola
Mark Scott
1 tat th regoing ordinance was read for the second time and passed finally on this the
d ay of ' N , 2006. by the following vote:
Henry (Jarrett
Brent Chesney
John E. 'Marez
Wc
Bill Kelly
Rex A. Kinnison 9-
Jesse Novola
Melody. t'ooperr0 Mark Scott ("klik
ferry Garda
APPROVED AND PASSED on this
A "CTES'F
Armando ('hapa. Cite Sec'ietary
- Approved:
Aguilar
Assistant ('ity Attorney
for City Attorney
T �! day of
PMd sI '
H- ry Garret Mayor
, 2006.
< e c,r. Texas
C unto, of Nueces
PUBLISHER'S AFFIDAVIT
CITY OF CORPUS CHRISTI
ss Ad ## 3617123
PO
13-fore rrae, the undersigned. a Notary Public, this day personally came Sandra
()rum, who being first: duly sworn, according to law, says that she is Legal
Sales Representative of the Corpus Christi Caller - Times, a daily newspaper
p ,blished al Corpus Christ; in said City and State, generally circulated in
A, - ansas. Bee, Brooks. Duval. Jim Hogg, Jim Wells, Karnes, Kenedy, Kleberg,
Oak, Nueces, Refugio. San Patrick), Victoria and Webb Counties, and that
rl , puhlcation )1. NOTICE OF PASSAGE OF ORDINANCE ON which the
annexed is a true copy, was inserted in the Corpus Christi Caller -Times and on
rr Woad Wide Web on the Caller -Times Interactive on the 19TH day(s) of
N,_)VEMBER, 2006
Legal Sales Representative
TWO (2 ) Time(s)
Subscribed and sworn to me on the date of
11(14 crui
Notary Public, Nueces County, Texas
Michelle Cabrera
Print or Type Name of Notary Public
My commission expires on March 19, 2008.
JOYCE CARER*
p�rq�$'yry EXPIRCg
; ;,," Mae 1!4. 2008
• November,. 19, 2098 away
n,
NOME OF
OF
Fes# READING
On November 14, 2006,
Corpus Christi City
reading fapproved first an
granting to
, Inc. a non -
excFtrsive one year
fronghtite , con,
ex teed, and upgrade
facittes of a wireless
network in the public
rights -of -way, and
certain other City
property, with
payments to the CC
Digital Community
Corporation ranging
from 3 to 5% of defined
gross receipts as finally
determined in a
network services
agreement.
is/ Armando Chapa
City Secretary
k City of Corpus Christi
_ e
riT
PUBLISHER'S AFFIDAVIT
iF CORPUS CHRISTI
Ac
tH3 t_,r( leter---qgne(ii P this cla \. personally came Sandra
ho ,tuI\ s\.or-ri, he( orchng to lay, , says that she is Legal
Caller-Ttmes, a daily newspaper
Hist:e a° pHs Chrtst
,aid (it\ and Stan. generally circulated in
t Is, Bev 1), tvH lilt Hogg, hrn Wells, Karnes, Kenedy, Kleberg,
O. Nut- Patricio Victoria and Webb Counties, and that
01 .1 cat
\foric, ( 0; PASS.kGE OF ORDINANCE NO. which the
t ! s 1-„, he Corpus C;iristi Caller-Times and on
t- 1 W 1 1ierTj,7 es Interactive on the 24TH day(s) of
)!-A -EMBER
„?!
ht-al Salc; Representative
() (2 Ttmets)
St -,scrihed and sworn t ) me on the date of
/
No!ary Nueces County, Texas
Nitohelle Cabrera
Pt-'111 or Tve Name of Notary Public
-:--)mrrit,;sion expires on March 19, 2008.
AFRERA
07, rt,r.
tCiOS
ptttlr 24, 2oas .
NOTICE OF PASSAGE
OF ORDINANCE NO.
027099
On December 19, 2006,
Corpus Christi City
Council approved
second reading of an
ordinance granting to
Earth link Inc a non
exclusive one year
franchise to operate
maintain, construct .
extend, and upgrade
facilities of a wireless
network in the public
rights -of -way, and
certain other City
property, with
payments to the CC
Digital Community
Corporation in the
amount of 5% of
ded gross receipts
as Its+ determined in
a network services
ag++ment.
/e/ Armando Chaps
City Secretary
'it,/ of Corpus Christi