HomeMy WebLinkAbout027100 ORD - 12/19/2006AN ORDINANCE GRANTING TO EARTHLINK, INC. A NON - EXCLUSIVE TEN YEAR
FRANCHISE TO OPERATE, MAINTAIN, CONSTRUCT, EXTEND, AND UPGRADE
F.A('ILITIES OF A WIRELESS NETWORK IN THE PUBLIC RIGHTS -OF -WAY
WHEREAS. the City of orpus Christi. Texas (the "City ") and EarthLink, Inc. (the
Grantee ') contemplate entering into an agreement (the "Agreement ") whereby certain assets of the
)f Corpus Christi Citywide Integrated Wi -Fi Network will be transferred to Grantee in
,.ionsrderation of cash and commitments of Grantee beneficial to the City's purposes for the
Network made by Grantee entering into an agreement with the CC Digital Community
Dey etopmcnt Corporation the Corporation ") to provide certain network access to the City as
managed by the Corporation (- Network Services Agreement "); and
WHEREAS, for implementation of the Agreement. the City and the Grantee desire that the
('art grant _t franchise for the Grantee to use the City right -of -way and other property as provided
hercir_
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY
OF CORPUS CHRISTI, TEXAS:
SECTION 1. The City hereby; grants to the Grantee a non - exclusive franchise to acquire,
construct. install. operate. maintain. 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
limitation, the installation :>f radios. the right to erect poles or other structures for attachment of
ratios, and the right to access. use and install fiber. The City hereby grants Grantee the non-
exclusive right to use any easements and rights -ol -way owned or controlled by the City for access
io !_ ity owned property or third party property (subject to Grantee obtaining approval from the third
party property owner) insofar as consistent with the City's right in the easement or right -of -way and
consistent with and subordinate to the primary purpose and use of the easement or right -of -way.
SECTION 2. I hti term of the franchise shall commence on the effective date of this
franchise and shall continue in effect for ten (10) years. Thereafter, the franchise may be renewed
Cor two (i) successive five 5) year periods of time upon at least six (6) months prior written notice
by Grantee to the Corporation. provided that Grantee has not committed a Major Default (as defined
in the Network Services .'agreement) under the Network Services Agreement that is continuing
during the six (6) months prior to any renewal term. Provided. however, the franchise shall expire
tip' n expiration of the Nety, ork Services Agreement. if earlier.
SECTION 3. During the '. crm_ the City hereby grants to Grantee the continuing right to
connect 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
with standards and protocols in the Network Services Agreement or agreements incidental thereto.
The City hereby _authorizes the Corporation to cooperate with Grantee in Grantee's access of the
( Fiber and to execute such additional agreements designating the speed and number of lines of
thri fiber System for Grantee•s use and related charges, if any. without the necessity of further
approvals by the City Council (-Leased Fiber "). Provided. however, nothing herein shall prevent
the (ity !rnn1 conveying tho Fiber ''ystcm or any part thereof to the Corporation.
0271110
SECTION 4. During the "Term. the City hereby grants to Grantee the continuing right to
connect to. transmit through and use in connection with the Network the wireless assets owned or
leased bx the ('ity ("City Wireless Assets ") in accordance with standards and protocols in the
Network Services Agreement or agreements incidental thereto. The City hereby authorizes the
Corporation to cooperate = -vith Grantee in Grantee's access of the City Wireless Assets and to
xccute such additional agreements designating the speed and other specifications and charges, if
ant :vithoatt the necessity of further approvals by the City Council. Provided, however, nothing
herein shale prevent the (' from conveying the City Wireless Assets or any part thereof to the
ti c rrporanor_
SECTION 5, the City owns_ operates and maintains certain assets, such as building
roc tops. radio towers. and data center or collocation facility locations (collectively, the
-Premises" t. During the Term. the City hereby_ grants to Grantee the continuing right and license to
)perate the Network on such Premises and to access, and install directly onto or within any part of
the Premises and operate acrd maintain radios, antennae and other devices in the number designated
by Grantee and to the co- location of equipment and telecommunications lines and circuits ( "Co-
located 1)e\ ices ") on the Premises as set forth in an applicable Antennae Site Use Agreement that
identifies the particular Premises and locations thereon that are appropriate for the installation of
uch devices considering the character and use of the Premises. The City hereby authorizes the
_.orporation with respect =,o Premises under its control or the ('ity Manager to cooperate with
:ir antee n Grantee's access and use or the Premises. and to execute such additional agreements
designating the specific Premises and related rental amounts mutually agreed upon by Grantee and
the Corporation or the ('it. Manager i" \ntennae Site 1 use Agreement ").
SE('TION 6. As compensation for the rights and privileges herein conferred, Grantee shall
„a., monthly to the Corporation a payment based upon a revenue share for the access services
pre ided to customers through the Network; provided however, Grantee shall pay to the
Corporation separate payments for the I eased hiber and the Premises. The revenue share for the
act ess sere ices will equal a percentage between three and five percent (3 -5 %) (as specified in the
Net. ~.work Services Agreement) of Grantee's total gross receipts collected and received by Grantee
for the applicable wireless access retail. wholesale and occasional use services provided via the
Network in the City and in the City s extra- territorial jurisdiction locations covered by the Network
i) less an applicable sales taxes 01 government required fees, (ii) less refunds, credits and charge -
backs. (in) less any amounts paid by the City or the Corporation to Grantee ( "Access Revenue ").
\cress Rev enue does not include fees fin- add -on products, CPE, installation, advertising, content,
bounties and referral fees. fees lb! sales through Internet commerce sites, VoIP or other voice
capabilities (except as may be agreed in the Network Services Agreement). The revenue payment
he due and payable IT, electronic funds transfer as mutually agreed upon by the Corporation
tno (rrante; in the Network Services Agreement.
SECTION 7. the City hereby grants to Grantee the right to install, operate and maintain
the Network and the related communications equipment on the City street lights, traffic lights and
connecting hardware and poles ( "( ity 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,
Grantee wail provide the (ity with its anticipated plans for mounting sites, and other assets and
facilities. including. but not limited to. communications towers, light standards, utility poles,
billboards and building rooftops, whether :awned or not owned by the City, and the City will inform
Grantee of approvals required_ if any, other than this franchise, and the process therefore, and will
certifv that no other approvals are required. Submission of any such anticipated plans will not
require Grantee to install on any particular location or prevent Grantee from altering its as -built
plans For expansions and changes during the term of this franchise, upon notification from Grantee
the City will prompt]. notify Grange of approvals required, if anv, and the process therefore. By
agreement. the City will charge they Corporation with the duty to assist Grantee in obtaining any
..hanges 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. Thc City hereby authorizes the Corporation to negotiate and enter into a
Ne work Services Agreement with the Grantee, whereby the Corporation and Grantee will
:ooperatc with one another as Grantee acquires. constructs, installs, operates, maintains, extends,
and upgrades facilities of its Network in the City and the Grantee will provide certain services via
the Network for the City's or Corporation's benefit to be managed by the Corporation. The City
trerek grants the Corporation all rights. licenses. permits and authorizations necessary to manage
m services provided by the (irantee 1cui the benefit of the City pursuant to the Network Services
s,.g,eccment. as more particularly deserihed in an agreement between the City and the Corporation.
SECTION 9, The Network Services \greement shall obligate Grantee to maintain
tdequate hooks and records relating to its payment obligations under this franchise for four (4)
ears from the date the payment vas made. Grantee shall file annually with the Corporation a
statement of Network access revenues for. that annual period attributable to the operations of the
irtantee's Network pursuant to this franchise ordinance. The Corporation and the Grantee may
agree to records and audit procedures in the Network Services Agreement.
SECTION 10. All construction. excavation, disturbance, or obstruction of rights -of -way
shall he carried out according to applicable federal, state, and local laws, and according to the
requirements of the Director of Engineering Services of the City, including requirements to relocate
orporatior facilities and to repair or restore City property. at the Grantee's expense.
SECTION 1 1. [he i irantee shall carry out its operations under this franchise in compliance
\yitn tall valid federal. state. and local laws. Nothing in this franchise shall be construed to contract
_twit; anv City police power to refulatc- and legislate to protect and promote the public health,
safct . and welfare.
SECTION 12. The Grantee shall carry out its operations in compliance with all of the
terms and conditions of the 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 forfeit and terminate this franchise in the event of termination of the
Network 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
he terms and conditions of this franchise by any failure of the other party on one or more occasions
io enforce compliance with such terms and conditions.
SECTION 15. Interpretation of this franchise and the rights and duties created hereunder
shad he pursuant to the constitution and laws of the State of Texas and the charter and ordinances of
the City. \ enue 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
iur sdiction in Nueces County, Texas
SECTION 16. This franchise may be transferred in accordance with the City charter.
urther, 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 of all or substantially all of the assets or operations
of the division of Grantee that is operating the Network. Provided, the City shall be promptly
notified ;'? meriting of any such assignment with such notification accompanied by documentation
.iei ionstrattng that the assignment falls within the requirements of the preceding sentence. Grantee
ma� nte; into one or more agreements for installation of the Network, operation of the Network, or
Both with one or more entities. Fgtripment used to provide the Network may be leased by Grantee
inc or be subject to securit\ interests of vendors or lenders, and. after the Agreement is entered into
the City and Grantee, the Cite shall have no rights in or to any equipment related to or used in
connection with the Network. Prop ided however. upon expiration or termination of the Network
per .ices .\agreement. ,_lispo.al of they equipment shall he in accordance with the Network Services
y<,? cement
SECTION 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
,io?npetent jurisdiction. it shall not affect any other section, paragraph, subdivision, clause,
phrase, \Nord or provision of this ordinance, for it is the definite intent of the City Council that every
ectton, paragraph. subdivision, clause. phrase, word or provision hereof be given full force and
.affect foi its purpose: provided, hok\ek-er. that this paragraph does not apply should the
.o mpensation provided to the City hereunder he held invalid by final judgment of a court of
,:onlpetent jurisdiction after all appeals, if any, and the City may in that even declare this franchise
nul and y o d. If any delegation of authority made herein shall be held invalid or unconstitutional
by;
our of competent jurisdiction. authority shall be deemed vested in the appropriate authority to
=exercise the delegated authority and this ordinance shall be otherwise unaffected.
SECTION 18. The grantee 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
conditions have been met: I) it has been executed by the parties; 2) sixty (60) days have expired
since final :adoption by the City Council_ 3) the parties or the Corporation and EarthLink have
executed the Network Services Agreement, 4) the parties have executed the Agreement, and 5) the
Cif,. and the Corporation have entered into an agreement granting the Corporation all rights
eq,rired or appropriate to perform as contemplated in this Franchise.
4
I hat the foregoing ordinance was read for the first time and passed to its second reading on this
the Jj day of Myeet y , 2006.11) the following vote:
Henry Garrett
Brent ( hcsney
John E. 'Vlarez
\lelodv ( oper
fern Garcia
afrIL
Bill Kelly
Rex A. Kinnison
Jesse Novola
Mark Scott
°A l e-
That the. orng ordinance was read for the second time and passed finally on this the
day of l j 2006, by the following vote:
Henry Garrett
Brent Chesney
John E Marez
Melody Cooper
Jerr, Garcia
Bill Kelly
Rex A. Kinnison
Jesse Novola
Mark Scott
APPROVED AND PASSED on this \C day of
A "I'TEST
Armando ('.hapa. City Secretary
Approved:
rf
Lisa Aguilar
Assistant ( ity Attorney
for City Attorney
)1 t
, 2006.
ArGi LL.4/ x.14.1
Hen ' Garrett. Mayor
0 :'71 110
PUBLISHER'S AFFIDAVIT
- e CI F1' F CORPUL; CHRISTI
N
AcH ei I 7
B th nder the ,ignc-d A V iiary Public, this dav personally came Sandra
ho r 1u1 acc ording to law, says that she is Legal
S I s R(presenlative ol .th( Lctrous Christi Caller-Times, a daily newspaper
t a oo Cims.! I!! aid City and State, generally circulated in
A Re ti : art Hogg. ,lim Wells, Karnes, Kenedy, Kleberg,
1
, Ni e Iwo toria and Webb Counties, and that
' X ( tr
(JTIC Ei PASSAGE OF ORDINANCE ON which the
\
as :r1St.:t ted he Corpus Christi Caller-Times and on
r • cul Interactive on the 19TH day(s) of
r' EMBER ...!Ot
$ I h
il-ellticc, OA/a-41*J
Legal Sales Representative
TWe..t 1 Tirrirts)
-iscribed and sworn to me on the date of
11//tiA0
tk.
Notary Public Nueces County, Texas
Michelle Cabrera
P-irt or Type Name of Notary Public
M \ ommksion expires on March 19, 2008.
"AICP-1-LLF. JOYCE CABRERA
1\AMIS3iON K-XPIP[7',
lath 200t
,„ ,,
November 19, 2006
•
rNOTICE OF PASSAGE
OF ORDINANCE GN
nR$T READING
On November 14, 200E
;orpus Christi Cit•r
;ouncil approved first
ead.ng of a••
irdinance granting t ,
arthlirk !nc. a nor -
exclus•ya ten year
'ranchise with possible
2 five year extensions .
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
oitai Community'
corporation ranging
tram 3 to 5% of defined
Toss receipts as finally
determined in a
network services
agreement.
is Armando Chapa
City Secretary
ity of Corpus Christ,
- t
m (:XEi
it N
PUBLISHER'S AFFIDAVIT
(IT' OF CORPUS CHRISTI
Ad
ID(
t3, 11 re .rn, tJit i.?Idersigned. 1 Notary PLblik this daN personally came Sandra
) n
H H(1 n.r-n ac n )rdmg to law. says that she is Legal
s .7-:'coreseniativt, (nfr-pris ci,risr. Caller-Times, a daily newspaper
at O1 -1st ire said C tx -Ind State generally circulated in
Be sa e R- wks. Diva ,nm Hogg ,Iim Wells, Karnes, Kenedy, Kleberg,
On-<
Nu ectn: Ret igl. 5 n Fricio, Vic:oria and Webb Counties, and that
ti :n!)1 cation t NOTICE OF PASSAGE OF ORDINANCE NO. which the
xe,' a Lop, was nse-'ed in the Corpus Christi Caller-Times and on
h :V, 1 \A, 1Cv A'oh T h interactive on the 24TH day(s) of
DEC EMBER 2001)
I -
LATil: Sales Representative
FW( ) T-rneist
cribed and sworn to me on the date of
'/24
Notary Public. Nueces County, Texas
Michelle Cabrera
ill. or Type Name of Notary Public
ommission expires on March 19, 2008.
, CXPIH".'S
40'8
Sunday • December 24, 2006
NORIODIDF PASSAGE
OP ORDINANCE NO,
027100
On December 19, 2006
Corpus Christi City
O unco approved
second reading of an
}rdinance granting to
_arthlink Inc. a non-
exclusive ten year
franchise with possible
2 five year extensions,
0 operate. maintain,
construct. extend. and
Jpgrade facilities d a
viceless network in the
jublic rights -of -way.
and certain other City
.,roperty. with
,payments to the CC
Digital Community
Corporation in the
amount of 5% of
defined gross receipts
as fin2Sy determined in
a netW rk services
agreement.
's/ Armando Chapa
City Secrete
!`qty of Corpus Chris