HomeMy WebLinkAboutC2006-171 - 4/25/2006 - Approved
AGREEMENT FOR SERVICES
BETWEEN
THE CITY OF CORPUS CHRISTI
AND
THE CC DIGITAL COMMUNITY DEVELOPMENT CORPORATION
fhls Agreement is made by 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
The 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 J J, 2006 (the "Resolution"), which authorized creation of the Corporation.
fhe City has invested more than S7 million in infrastructure for the Network and
significant additional resources supporting development of the Network.
fhe City wishes to utilize the Corporation to focus on implementation of this highest
priority CIty project.
ARTICLE 1
DEFINITIONS
In addition to any other terms defined within this Agreement, the following terms, when
used in this Agreement, shall have the meanings ascribed to them below in this Article I, 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 hy such party
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 A VL
Network Services, personal application portal services, text and video news providers, video
2006-171
04/25/06
Ord0267~6
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(CD(I)(
conferencmg providers. online productivIty solutions. radio frequency identification, and mobile
iocatlOlI tracking
1.5 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
.;;ervices 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 Pmtner 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 Facilitie....' ~ all components of the Network, wireless or wired, equipment or
software, necessary to operation of the Network, including but not limited to:
a) WiFi mesh Network: portal: tIber, other cable and WiMax backbone; Network
()perating Center; Network hardware and equipment; management equipment; routing
equipment: switches; Network management software; VLANS, IP Adressing, and ass;
h) Network Bandwidth:
c) 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
mcluding wires from the enterprise network to particular City departments, but does not
ll1c1ude devices used by City departments, including but not limited to, personal
computers. telephones. cellular telephones, printers, faxes, scanners, individual servers,
department .;;oftwarc, local cabling, traffic signals, and mobile computers;
c) office space sufticient 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;
n the tiber. equipment, and other apparatus depicted in Exhibit A (consisting of one page
entItled City Fiher \1ap and two pages entitled City of Corpus Christi Local and Wide
Area Network), attached hereto and incorporated herein; and
g) all other propert y, 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
Jr a governmental subdivision of the State with boundaries inside the City limits of the City that
uses the Network to carry .)ut the purposes for which It was created.
1.1 () Internet '" the global mfonnation system that: I) is logically linked together by a
globally unique address space based on the Internet Protocol (IP) or its subsequent
cxtensions'foIlow-ons; 2) is able to support communications using the Transmission Control
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
'Ill the communications and related infrastructure described herein.
1.11 ISP - Internet Service Provider.
1.12 Maintain orUaintenance to keep up, preserve, and support the condition and
existence (If
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 tiber 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
'\ietwork in a penod of time.
1.15 Network Capital Costs - all costs of constructing, expanding and upgrading the
'\ietwork induding payment or reimbursement for labor, services, material and equipment and
any other costs incurred in connection with the acquisition, construction, improvement or
mstallation of the improvements and facilities constituting the Network; all incidental costs
incurred in connection therewith including the cost of architectural, legal, engineering, appraisal,
accountmg, financial, consulting, design, statisticaL and other professional, technical and
supervisory services: all debt service, fees, charges, and expenses incurred in connection with the
authorization, preparation, sale, issuance and delivery of bonds or other debt instruments,
mcluding all debt service and fees for financial, legaL accounting, and other professional
..;ervices: and all other cosh. 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
'\ietwork in good repair and operating condition, including the cost of salaries, wages, benefits
dnd other compensation for Corporation employees; contractual services for any aspect ofthe
administration, management and operation and maintenance ofthe Network; fees and expenses
tor professional servIces; insurance 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 renewah occurring in the usual course of business, costs of utility services;
advertismg and public information about the Network. and all other costs and expenses of
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managing. operating. maintaining and repairing the Network arising in the routine and normal
(ourse of 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, mformation, education. and other services to Users in accordance with the public
purposes of the Network. Partner includes Commercial Partners. Community Partners,
Educational Partners, Governmental Partners, subgroups of those Partners, and other discrete
groups that may be determmed by the Corporation.
1.19 Person - an individual, a partnership (limited or general), a limited liability
company, a corporatlOn. 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 U",er - a person, whether husiness, 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 Clty and its Partners.
1.21 Purposes of the Network - all of the public purposes recited in Section 1 of the
ResolutlOl1
1.22 VolP - 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 Jul y 3 I . 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 ofthe 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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Corporation to use all the City's real property and interests in real property comprising the
Facilities. The City wlll incidentally grant to the Corporation a franchise for use of the City's
nghts-of-way The City \lanager IS authorized to annually designate specific office, building,
dnd 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
Gontracts and rights held bv 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.
33 Limit on Grants. The grants III 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
PlJBLIC 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 ofthe Network, first
priority shall be given to the delivery of police, fire, emergency medical, emergency
management, and other services that directly impact public health and safety, including
suspending all other uses ()fpart or all of the Network until the public safety is restored, if
deemed necessary by the ('ity.
4.3 Procedures. The Corporation shall develop appropriate operating procedures for
Gommunication and Implementation of priorities.
4.4 Third Party Operation. Should the Corporation enter into a third party agreement
tc)r OperatlOn of the Network, the Agreement shall require that the priorities in this Article 4 be
tallowed.
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 (ipgrade and Expansion. The Corporation shall continuously upgrade
dnd expand the Facilities to provide serVlce 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,
mcluding new services offerings, and shall manage the implementation of upgrades, expansions,
md 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
\letwork portaL the City or 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 Corporation shall, iffinancially feasible, establish a program to assist economically
disadvantaged citizens to purchase equipment necessary to access the Network, and otherwise
dssist citizens with training and other services to promote digital equity.
5.6 Information about Network. The Corporation shall inform City residents of the
\letwork and the services available to them on the Network. The Corporation shall develop and
implement a marketmg plan, including advertising and other public relations activities. The
Corporation shall coordinate with Partners. advertisers. and others to promote full access to the
heneficial uses of the Network.
5.7 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
\letwork. and may charge reasonable tees 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 \letwork in accordance with law.
5.13 Small and Local Business Promotion. The Corporation shall explore how the
\letwork can be used to enhance the success of small businesses within the City and to enhance
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the success of businesses primarily 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 ofthe Network and
m accordance with any additional purposes or directives that may be adopted by the City
('ounci I.
5.15 Improvement to City Efficiency and Services. The Corporation shall use the
expertise gained in its operation ofthe Network to continuously seek to identify technologies and
applications that will enable City departments to provide improved services at reduced cost, shall
call these t.o the attention of City management, and shall assist City management in
Implementmg them City management and the Corporation will work cooperatively and
proactivel\! to achieve full benefit of 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
convement to the performance of the duties and responsibilities set forth in this Agreement.
Without lImitation on the tlxegoing exercise of powers. certain specific powers are specified
helow.
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 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. OT 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
dnd dishursmg 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
-:arry out its Operational and Maintenance duties and responsibilities through service contracts
with pnvatc Persons and with the City. The Corporation may employ administrative staff, but
will work to keep any admmistrative staff to a minimum. For purposes of this Section 6.4, the
term "administrative stafr is limited to generaL overall administration and coordination of the
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{'orporation's activities: admimstrative support to the Corporation's Board of Directors,
lversight of Contracts with Partners and Contractors. sales and promotion of Network business,
md clerical assistance related thereto.
6.5 Manner and Means. rhe Corporation shall be solely responsible, in its discretion,
tor 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
-.:ontract wIth other cities to 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
property 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
mtellectual property rights shall be the sole and exclusive property of the City and the
Corporation.
6.8 No Sale of Property or Encumbrances. Except as provided in this Agreement, the
Corporation shall have no authority to sell or otherwise alienate the Facilities or the Network,
and may not create. assume or sutfer to exist any mortgage, pledge, lien, charge, security
mterest. or other encumbrance against the Facilities or the Network, without the written consent
)fthe 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 ('orporation to negotiate and enter into license contracts for use of the
\Jetwork 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 \vould 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 term "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: I)
substantIally similar terms and conditions for all Partners similarly situated; 2) terms and
conditions tor Partners later joining the Network that place them in an as equal a position as
possible With those joining earlier; 3) a fi ve year term. unless the Partner contributes assets that
Justify a longer term: 4) compliance with all rules, regulations, and policies governing the
'\Jetwork; ';) indemnity oflhe City and the Corporation from responsibility for any action of
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Partners; 6) appropnate insurance for Partners naming the City and the Corporation as additional
Insureds; -, 1 appropnate performance security; 8) disclaimer of any liability ofthe City or the
Corporation 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
tor content provIded by the Partner or its users; 10) for assignment to the City; 11) no City
lIability fl)r acts and omiSSIOns oflhe Corporation; 12) termination of contract as only remedy for
<I Judicial determination 0] new legislatIon that City or Corporation lacks authority with respect
To any aspect of the \i etwork: 13) reference to the priorities in Article 4; 14) acknowledgement of
\lpen meetings and recnrds laws: 15) provisions to protect proprietary information of Partners;
,md, 161 other provisions determined appropriate by the Corporation.
7.3 Commercial Partners. Contracts with Commercial Partners shall provide for fair
...:ompensation to the publi( for value received through use of Network bandwidth.
7.4 Community Partners. Contracts with Community Partners shall provide for fair
compensation to the public for value received through use of Network bandwidth, which may be
fulfilled bv 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
determllled 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
determllled by the Corporation to serve 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 Network,-services 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
~ontract with Contractors tor the procurement of all goods, services, and property necessary or
~onvement to operate, mamtain, 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
ofmomes derived from or Facilities financed through obligations, the interest on which is
mtended to be excludable trom 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 1986. as amended, and regulations promulgated thereunder.
803. 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 ofthe City
Council bv 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 I, 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
mcluding the actual staff costs of the City, and reimbursement shall be implemented as part of
the Corporation's annual hudget submission under Article] I. No reimbursement for cost of
City stafT shall be made until the City presents an itemized invoice to the Corporation. The
Corporation Board may review the invoice, and request any reduction believed appropriate.
A.fter conSIdering any request by the Corporation Board, the City Council's determination of the
amount of the invoice shall be tinal
ARTICLE 10
FUNDING OF NETWORK
10.1 City Funding and Support. Each year, from August I, 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 yeaL 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
will be retlected each year III the Corporation's budget. After the first five years, the City and
the Corporation will reneg\ltiate support that may be provided by the City.
10.2 Funding Sources. It is expected that the Network will be supported by payments
trom the City as described m Section] 0.1 and payments trom Partners for their usage ofthe
'\Jetwork 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.
fhe Corporation is authoril.ed to seek funding from other sources such as government or
t(mndation 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 thIsA..greement. Th( City wdl pay debt service on the obligations sold to finance the
mitial cost of constructIOn the Network. The Corporation will reimburse the City for the portion
<11 each such payment that 1S determined by multiplying it by a traction the numerator of which is
".5,900.000 and the denommator 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 Mamtenance Costs, and shall negotIate payments from Commercial Partners that reflect
market value of their use ofthe Network Payments shall be without unreasonable
chscrimmatlOn 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.
rhe Corporation will endeavor to fund its obligations from revenues generated through operation
of the Network. However. ifnecessary 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 ofthe Corporation's annual budget submission pursuant to Article 11, shall identify
and 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 sutlicient 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
'\greement 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 V1anager, who shall t()rward it to the City Council. The date in 2006 for
submittmg the Corporation's initial budget shall be deferred to a date directed by the City
('ounC1 i
1].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 by City. The Corporation's proposed operating and capital budget will
be reviewed and approved or modi tIed hy the City Council during the City's regular budget
process The budget, as approved or modified by the City Council shall be final.
1 ].5 Operations within Budget. The Corporation shall operate and manage the
'\Jetwork within the overall limits of the approved budget.
ARTICLE 12
INDEMNIFICA TION
12.1 Definitions for Article. The following terms, as used in this Article 12, shall have
the tollowmg 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,
costs, charges, assessments, and expenses (including attorneys' fees, experts' fees and
expenses incurred m investigating, defending, or prosecuting any litigation or
proceeding), assertIOns, demands, litigation, suits, proceedings, causes of action (whether
In tort or contract or in law or at equity), or judgments.
c) 'De/,end" 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 tor a Claim actually incurred.
\?) "Waive" means to knowingly and voluntarily relinquish a right and/or to release
another party 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 WITHOUT F AUL T 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 APPLICALE LAW, THE CORPORATION WAIVES ALL CLAIMS
THAT IT MA Y 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
'\iEGLIGENCE OF THE CITY, WHETHER OR NOT LIABILITY WITHOUT FAULT
OR STRICT LIABILITY IS IMPOSED OR SOUGHT TO BE IMPOSED ON THE CITY.
12.4 General Scope of Indemnities and Waivers. The Indemnities, Waivers, and
obligatlOns to Defend in thIS Article 12 are independent of, and will not be limited by each other
or any insurance obligations in this Agreement (whether or not complied with), and will survive
the Contract ExpiratlOn 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 law 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;
h) Commercial General Liability. Commercial general liability insurance with a limit of
at least $1.000,000 Combined Smgle Limit insuring against all liability of the
Corporation and its AuthOrIzed Representatives arising out of and in connection with the
Corporation's duties and obligations under this Agreement.
c) Commercial Business Automobile Liability. At least $1,000,000 Combined Single
Limit arising out of the operation. maintenance or use of owned and non-owned
automobiles or other vehicles.
d) Umbrella Liability. At least $2,000,000 per occurrence of umbrella liability coverage
wntten on an occurrence basis:
e) Professional Liability. At least $1,000,000 per claim and $1,000,000 aggregate;
t) Crime and Fidel ity Coverage At least $500,000 per occurrence of coverage for l)
employee dishonesty, 2) forgery or alteration. 3) theft, disappearance and destruction, 4)
robbery and sate burglary. and 5) computer fraud; and
g) Other Coverages. Such other insurance coverages as may be required by the City's
Director of Risk Management.
The torm 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- 7 status as rated in the most recent edition of Best's Insurance Reports, shall
he issued as a primary POllCY. shall contain an endorsement requiring sixty (60) days written
notice from the insurance companies 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 City as an additional insured. Each policy shall be evidenced by a certificate of insurance. A
,~ertificate of insurance and a copy of each policy shall be provided to the Director. The form
dnd substance of each certificate and polIcy must be acceptable to the Director.
13.3 Waiver of Subrogation. The parties release each other and their respective
Authonzed 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
msurance policies required to be maintained by them hereunder to include waivers of the rights
,If recovery and subrogation.
t 3.4 Property Insurance. The City shall maintain a policy of commercial property
Insurance on the Facilities If the facilities. or part thereot~ are damaged or destroyed, the City
will detenmne whether repairs and restoration are practicable and feasible and will inform the
Corporation in writing of lts decision Within 120 days following the date of such damage or
destruction If a decision 15 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
hy the ('it\' to not repair and restore the Facilities shall constitute termination of this Agreement.
;\11 proceeds of any propel1y insurance paid for by the City shall be the exclusive property of the
City
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
Lease Agreement. and the continuation of that failure for a period of thirty (30) days after
the City's delivery of written notice thereof to the Corporation;
b) 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 relieflaw;
Ill' ( 1) for the appomtment of a liquidator or receiver for all or substantially all of the
Corporation's property or for the Corporation' s interest in this Agreement; or
c) 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 pnor 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 anyone
It" more ot the following remedies. without any notice or demand whatsoever, except as
ntherwise mdicated
,j) Terminate this Agreement by gIving written notice of termination to the Corporation,
m which event the Corporation shall immediately surrender the Facilities to the City.
0) Re-enter the Facilities without terminating this Agreement, and, without being liable
tor 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. The 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 CorporatIOn 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 inf()rmation 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
\tanager 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 be requested by the City Council.
15.4 Advisor} Committees. The Corporation shall establish an advisory committee or
.:ommittees 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 operatlOn of the Network,
15.5 Open Meetings and Records. The Corporation shall comply with the Texas Open
\1eetings Act and PublIc lnformation Act.
15.6 Compliance with Laws. The Corporation shall comply with all applicable federal,
'jtate. 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 tor employment is afforded equal employment opportunities
\vithout discrimination because of age. race, creed. sex, color or national origin. Such action
shall be taken with reference. but not be limited to, recruitment. employment, job assignment,
15
promotIon, upgradmg, delnotion, transfer. layoff or termination, rates of pay or other forms of
compensatIon in selection for training or retraining, including apprenticeship and on the job
train mg. Subject to compliance wIth such obligations, and other obligations under this
.\greement. the Corporation shall have plenary power with respect to the hiring and discharge of
Its employees.
15.8 Minority Participation. rhe Corporation shall comply with applicable City
minority, 'komen and disadvantaged business enterprise policies in performing Corporation's
obligatIOns hereunder. which policy consists of an obligation on the part of the Corporation to
use its reasonable efforts tll 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 f(lr the Network.
15,9 Assignment. The Corporation shall not voluntarily assign or encumber its interest
III this Agreement without first obtainlllg 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 III 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 380.00 I. Texas Local Government Code.
15.12 Assumption of Powers and Duties. Pursuant to Texas Transportation Code
Section 4.~ 1.104. the City Council may assume the powers and duties of the Corporation; upon
assumption the City shall assume the assets and liabilities of the Corporation.
15.13 Income of Corporation. Pursuant to Texas Transportation Code Section 431.107,
the City is entitled at any lIme 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 be 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
16
Federal Express, UPS. or DHL) for expedited delivery. to be confirmed in writing by such
-:ourier. or when telecopied, telegraphed or telexed to a party, at such party's address set forth
below or at such other address as a pm1y may designate by notice given to the other in
accordance with the foreg< ling.
10 the Citv
Mr. George K. Noe
CIty Manager
CIty of Corpus Christi
1201 Leopard
P.O. Box 9277
Corpus Christi, Texas 78469-9277
Phone: 36] /880-3220
Fax: 3611826-3839
10 the Corporation
Chairman of the Board of Directors
c/o Armando Chapa, Secretary
CC Digital Community Development Corporation
1201 Leopard
P.O. Box 9:277
Corpus Chnsti, Texas 78469-9277
Phone: 361826-3105
\lotice shall, in all events, he effective upon receipt by the addressee except that notice by
facsimile electronic transmission shall. ifreceived 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
administrati ve 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
tor convemence of reference only. They shall not be deemed to be part of this Agreement or to
in any way define, limit, extend, or describe the scope or intent of any provision of this
'\greement. 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 ofNueces County, Texas
17
"hall be the exclusive place of venue for any disputes arising under or with respect to this
\greemenl
15.20 No Third Party Beneficiaries. This agreement is entered into solely for the
benefit of 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,
If. for any reason. any such provision or any part thereof. is determined to be invalid and contrary
to any existmg 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 imalid 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 III this Agreement.
(EXECliTION PAGE AND EXHIBIT A and EXHIBIT B FOLLOW)
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Executed In duplicate origmals on this the. 9n~_ day of_u --.Jk\.- ~
CITY OF CORPUS CHRISTI
G~itYManager ---
'\ ttest:
.... -..,
.. ~~~~-
Armando Chapa, City Secretary
Approved as to legal form April 18, 1006
Lisa Aguilar '
'\ssistant CIty Attorney
For City Attorney
_~_J)J_~_~~
Date
,2006.
Or(1 fj.L_~l5..t AU\HUt<I~
;y ~U"Cll .___'iftS! O~
..........~
~f~nAIV -UL
CC DIGITAL COMMUN [TY DEVELOPMENT CORPORA nON
,/^ ~
( . / i -
By: J2.wdflfd 1 '
Bud Harris. Chairperso
Date:
I Y' II-t{
. f
19
Exhibit A
DEPICTION OF FACILITIES
20
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.
21