HomeMy WebLinkAboutC2006-603 - 12/19/2006 - ApprovedFRANCHISE AGREEMENT
[ONE YF.AR]
.aN ORDINANCE GRA!VTING TO EARTHLINK, INC. A NON-EXCLUSIVE ONE
Y"EAR FRANCHISE TO OPERATF, MAINTAIN, CONSTRUCT, EXTEND, AND
UPGRADF, FACILITIES OF A V4'IRELESS NETWORK IN THE PUBLIC RIGHTS-OF-
W ~S.
WHERF AS, the C'itv of C~orpus Christi. Texas (the "City") and EarthLink, Inc. (the "Grantee")
eo~lten~late enterulg ~nto an agreement tthe "Agraement") whereby certain assets of the City of
Corpus Christi Citywide Integrated w'i-Fi Network will be transferred to Grantee in
cor~sid~'ation of cash and commit~nents of Grantee beneficial to the City's purposes for the
Netw~ork made bv Grantee enter~7ig into an agreement with the CC Digital Community
Development Corporation ,,the "Cc~rporat~ion") to provide certain network access to the City as
managed bv the Corparatio~~ ("Netv~~ork Services Agreement"); and
WHEREAS, for implementation of the Agreement, the City and the Grantee desire that
the City grant a franchise for the (irantee to use the City right-of-way and other property as
provided herein.
NOW, THEREFORE, B~: IT ORDAINED BY THE CITY COUNCIL OF THE
C1TY OF CORPUS CHRISTI, TF,XAS:
SEC'TION l. The City hertby ~rants to the Grantee a non-exclusive franchise to acquire,
~onstruct, install, operate. maintain. extend, and upgrade facilities of its wireless network (the
~`Network'~l in, over. undec and across the public rights-of-way of the City, including, without
bimitaLaon, the installation ~f radios, th~ ~-ight to erect poles or other structures for attachment of
radios, and the nght to access, ust- and Enstall fiber. The City hereby grants Grantee the non-
exclusive right to use any rasement~ and rights-of-way~ owned or controlled by the City for access
~o C'Fty c?«ned property or third party property (subject to Grantee obtaining approval from the
th~rd party property owner+ insofar as consistent ~~ith the City's right in the easement or right-of-
~,~av anc~ cunsistent ~~ith a~~d subor~#inate to the pr~mary purpose and use of the easement or right-
~~f -w ay.
SECTION 2. Th~ term of the franchise shall commence on the effective date of this
fr~ncl~se and shall continue in effeet for one year unless superseded by the commencement of a
longer-tenn franchise.
SECTION 3. During the "E~erm~ the City hereby grants to Grantee the continuing right to
~;onnect to. transmit throu~h and use in connection with the Network the fiber optic transmission
system ~~~'ned or leased by the City~ in connection with the Network ("Fiber System") in
accorda~~cu with standard5 and p~~otoculs in tht Network Services Agreement or agreements
;nciciental theret~~ I'he C'ity herehy ~uthorizes the Corporation to cooperate with Grantee in
2006-603
,
12/l 9/06 ~
Ord02709U
Eartht:ink
E_Sr~~~~~?ee~~~ .~cce~ss cat ~l~e (~°~tv 1-~h~~ ~ul~l =~~ execu~e such additional agreements designating the
;t~~~~=u a«~,l elumher ~~'~ l~n~~~~~ ~i~ thc~ ~~ibc~~ Svstem f'or ~~irantee~s use and related charges, if any,
~-~i?h~}ut ~1~~.~ ner~s~i7t ~>f~ ~-urth~~r ~~;~prc~~.~;lls h~~ tl~e City Cow~cil ("Leased Fiber"). Provided,
~u~~~~ver Eiothi»~ llt:~ei~i ~~~all prc~~~~;nt ~~he C'itv 'i-on~ con~~e~~in~ the Fiber System or any part
~`iere:.~f t~_~= ti~e C~~rporati~>>l _ _
SEC'TION a C)u~~~~ng the I ~rn~. tl~e Citv }iereby ~rants to Grantee the continuing right to
Lo~nnect ~~~. trans~nit throu~i~ and us~= in connectior: with the Network the wireless assets owned or
Ecase~i b~. the C`ity f'°C'it~ ~ti~ireles~ Ass~ts") in a~.~cordance with standards and protocols in the
~iet~~ork Sc;rvices .A~re~n~~;nt c~r a;~,reen~~:r~ts inciciental thereto. The City hereby authorizes the
~~c~iporat~on to cooperate ~vith Gr<~ntee i~~ Grante~e~s access of the City Wireless Assets and to
~°Y~ci~te ~uc~h additional a~~r~eements ~~esi;nating the speed and other specifications and charges, if
.~~ry. without the necessit~~ ~~f furth~ z~ approvals b~ the City Council. Provided, however, nothing
i~erein slla~l pre~~ent the C~,ly frc~n~ .won~~~:ving the C'it~~ Wireless Assets or any part thereof to the
~'orporat~on.
SECTION S, Thr Citv o~~~ns, ~~perates and maintains certain assets, such as building
;~o~~ftops. f~adio to~~~ers, aud data center or a~llocation facility locations (collectively, the
~'Prernises' 1. During the i erm. the t'it~ hereby grants to Grantee the continuing right and license
to operate the Net~ork on such Premises and to access, and install directly onto or within any
~7art ~~f the Pre~nises and o~erate and rriaintain radios, antennae and other devices in the number
designated b_y Grantee an~l to the co-location of equipment and telecommunications lines and
circuits s'`~'o-loc~ated Devices"1 or1 ~he Yremises as set forth in an applieable Antennae Site Use
~~reement that identifies the parti~ ular Premise~, and locations thereon that are appropriate for
~he instailation of such de~vices c~~nsicie--ing the character and use of the Premises. The City
i~erehy authoriz,es the Cor~orat~on ~.~ ith respect to Premises under its control or the City Manager
~o cc~operate with i;rante~~ in Grantee~~ access and use of the Premises, and to execute such
additional agreements designatin~ the ~pecific ?'remises and related rental amounts mutually
~igreed lipon by Grantee and th~° C~~~rporation or the City Manager ("Antennae Site Use
~~reemen t „).
SECTION 6. As compen~ation for the rights and privileges herein conferred, Grantee
~hall pa~ monthiv to ?he Corpor~~tion .i payment based upon a revenue share for the access
~ervlces pr-ovided to custorners thrc~ugh the Network; provided however, Grantee shall pay to the
~.:'~~rparatic~n separate pavn~ents f-or the [.~ased Fi}~er and the Premises. The revenue share for the
access sen ices v~ ill equal a percEnrage t~etween tilree and five percent (3-5%) (as specified in the
'~letwork tiervices A~ eement) of (~rantee's total ~;ross receipts collected and received by Grantee
xc~r the ap~~licable ~~-?reles~ access retail, wholesale and oecasional use services provided via the
~I~:.t~~ork in the (~3rv an~ in !l~e '=.~'it~~~ ~ extra-tc~rritorial junsdiction locations covered by the
v~t~vorl. (i) less anr% appl~~:able sai~s taxes or go•~~e~7~ment required fees, (ii) less refunds, credits
and charg~-backs, liri) less an~~ am~~unt5 paid by ~~he City or the Corporation to Grantee ("Access
E~evenue" _. Ac~ess Re~ ~~nue do.°~ i7~~~ includ~~ fees for add-on products, CPE, installation,
~cfvertisin~, eontent. bi~unNes and :-efer-ral fees= fees for sales through Internet commerce sites,
V~IP or z~ther voice cap~l~ilities (e~cept as ma~ '~e a~reed in the Network Services Agreement).
I~I;~ ~~v~:,~i~~ pa~~me~~t shal~~ bc dur ,_-n~i F~~a~~able f>~~ electronic ftinds transfer as mutually agreed
~~p~>n by ~iit~ Cor}~uraisor~ arr~l Gr<ant~~~ in ~I~~t~ Net~~~~~rk Services A~reement.
tiEC'TION ~. l he i~'it~ her:~hv _r~~nts to C<~rar~tee the right to install, operate and maintain
tl~~~ ?~.et~~o~~k anci th~~ relat~d ~omn~~,~in~c~itions e~~uipme~it on the City street lights, traffic lights
_~il~~l conr~~~~~ting harcl•~ are arld pole~ ~"(~~it~~ Poles" ~ in accordance ~~~ith standards and protocols in
~ I~~~ '~et~ ork Serv~c~es A~reement t>s agree~~~ents ~r~cidental thereto. which will assure location and
~,~stallatic>r~ consistrnt ~~itl,~ public i~ealti~ and sai~tv_ Prior to final adoption of this ordinance,
~~~rantee ~~.v~11 proti~ide th~ (~rty w~ith fts a~iticipated plans far moimting sites, and other assets and
!~ac~lities includin~. but ?~~.~t li~nitt~l t~~ ~~ommunications towers. light standards, utility poles,
hillboard> ;~nd building n~t~ftops, ~~hetlic;r owneci or not owned by tY-e City, and the City will
~nlorm (rrzintee of approva~s requir~:_°d, ii anv. other than this franchise, and the process therefore,
~n<_i ~vill Lt~rtify that ~ZO otl~er appr~~~~als are requir-ed. Submission of any such anticipated plans
tc-ilA f~iot x~e~~uire C.rr-antee tc~ install r~~~ an~ particular location or prevent Grantee from altering its
~ls-~bt~ili ~lans~ Fur expansions anci chan~es duri~i~ the term of this franchise, upon notification
trc~m Gr~~in~ee the Cit~~ wil i proii~ptl ~~ noti ~~ Grantce of approvals required, if any, and the process
thr~retore By agreement. Khe City ~~~ill <~l~arge thf~ Corporation with the duty to assist Grantee in
=_~bta~nin~ any chan~es reyuired, tc~ pron~ptly co~itact and work with City staff to facilitate the
rap~ei issuance of an~ requ~red appr~uval~. and to °ducate pertinent City staff on Grantee's rights
~mcler thi~ iranchise
SECTION 8. 'I'he City hereby authorizes the Corporation to negotiate and enter into a
vetwa~k ~ervices Agreement with the Grantee, whereby the Corporation and Grantee will
cooperate with one anotheT as Grantee acyuires, constructs, installs, operates, maintains, extends,
and upgrades facilitles of r~s Network in the City and the Grantee will provide eertain services via
the Netu~ork for the City's or Corp~~ratiorl's beneiit to be managed by the Corporation. The City
ilereby grants the Corporataon all ri~hts, licenses, permits and authorizations necessary to manage
_~n~~ serv~c~s pmvidee~ ~by tlie Grant~e for the benefit of the City pursuant to the Network Services
~~~reement, as m<~re particularl~ de~cribed in an agreement between the City and the
i'c~rporatic>n.
SECTION 9, T~l~e Netwurk Services f~~-eement shall obligate Grantee to maintain
adequ~te ~?ooks and records relatin~ to its payment obligations under this franchise for four (4)
-~ear~ frc,n~ the date the payment ~~~as made. Grantee shall file annually with the Corporation a
statement ~~f Networl~ acc~ss reven~~es ior that annual period attributable to the operations of the
~:si-al:tee's '~Ietwork pursuant to thi~: f~rar~c:hise oi-dinance. The Corparation and the Grantee may
r~gi-ec to re:,ords ancl audit t~rocedw~es in ihe Netw:~rk Services Agreement.
SECTION 10. Ali constn~etion, excavation, disturbance, or obstruction of rights-of-way
shall be carried out according to applicable federal, state, and local laws, and according to the
requirements of the Director of }~ngin~ering Services of the City, including requirements to
~~e(ocate Corporation facilities and tc~ repair or res~ore City property, at the Grantee's expense.
SE.CTION ll. "I-E~e Grartee ~~(~all ~arr~v out its operations under this franchise in
~cmpliance with ail valir` federa~. state, and lc~cal laws. '~lothing in this franchise shall be
~
: ~~~~strue~l t:~ eontra~t ti~~a~, anv C'it• poli.~ po~ticr t~~ r-c~~rulatc and legislate to protect and promote
,'7e~~ publ~~. ti~alth. ;a~~et~~. :~r,d «cifar.:
SECTION 1 ~. T};~ Grant~~= sh~til carr~~ ~~~ut its operations in compliance with all of the
~~_r~i~~ an~l ~ ondition~; ~~f th~~ Net~~~~or~: Ser~ ices A~r~emtnt.
SECTION 13. In additio~= to ali rights ~~f the City, at law or in equity, to enforce the
te;rr:i, oC tilis ti-ancl~ist. ~he ('~t~~ ma~ forfeit .ind tern~inate this franchise in the event of
~~rminati~»~ of the Net«~a~~?~ Servic~~s .A~~reement in accordance with the terms of the Network
>erv~ces ~,~-eeme~~it
SECTION 14. Neither Grantee rior tl-e ('ity shall be excused from complying with any
~~f the tei-ms and conditio~~~s of thi, franchise bv any failure of the other party on one or more
tac~asions to enforce compi~ance w~th such terms ~~nd conditions.
SECTION 15. [nterpretation ot this franchise and the rights and duties created hereunder
~hall be pursuant to the coi~stitution and laws of the State of Texas and the charter and ordinances
t?f zhe Ctty~ Venue tor actions concerning any matter or controversy growing out of or incident to
the c~uties and obli~ations in this rranchise shall be in the state or federal courts of competent
?urisdicti~~n in Nueces C'ou;lty, Tex~is.
SECTION 16. This franchise may be transferred in accordance with the City charter.
f~urther, Grantee can assign this A~reement 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
=~perations of the division _~f Grantee that is operating the Network. Provided, the City shall be
promptl~ notified in writ~ng of any such assignment with such notification accompanied by
c~ocurr~entation demonstrat~ng that the assignment falls within the requirements of the preceding
~entence Grantee may enter intca one or morc agreements for installation of the Network,
~~peratio-= ~~f the Netwark_ or hoth wit~l one or ~nore entities. Equipment used to provide the
tiet~~ork ri~~ay be leased b~ Grante~~ and~or be suhject to security interests of vendors or lenders,
and. after the A~reement i~; enterecl into bv the C~ty and Grantee, the City shall have no rights in
>>r ~to aa~~~ equipment relate~i to or u~ed in connection with the Network. Provided, however, upon
~xpiration ~r termmation <<f the Network Service~~ Agreement, disposal of the equipment shall be
~n accor~iance with the Network Se~-vices A~-eemt~nt.
~ECTION 17. Ct for an~ reason any section, paragraph, subdivision, clause, phrase,
wc~rd or provision of this c7rdinanct~ shall be held invalid or unconstitutional by final judgment of
~~ court ~~t competent jun~diction, ~t shall not at~fect any other section, paragraph, subdivision,
~l~iuse, ~hrase, word or pr~~vision ol this t~rdinanc~,. for it is the definite intent of the City Council
~hat ~~verv ~ection, paragraph, subdivisic,n_ clause, phrase, word or provision hereof be given full
torcc an~I ~~ffect fur its pur,~ose; pr«vided. howevr~r, that this paragraph does not apply should the
~-ompensation provrded tc. the C: it~ hereunder b~: held invalid by final judgment of a court of
com~~eter~t jurisdicti~m after ali a~~pe~~ls, if anY and the City may in that even declare this
tra~ichis~~ F~ull and ioid. If a~ry <i~,legation of ~~uthority made herein shall be held invalid or
~znconstituuonal I~y~ _G coufi-t of r.oroipete~tt junsd~ction, authority shall be deemed vested in the
:~~~~~ropriate ~Uthorit~. ~c~ ~~.:;rc~~e tl~r~~ dei~;;ate~j authc~ritv and this ordi-lance shall be otherwise
:~~roi't~~ct~,i
SE< "['IO1~~ 1 S. "l~h~ Grantee shali pa}~ all ~•ast~ of publication of notice of this ordinance
;i; ,°~e~;ui~~~d k~y~ t~ht ('it~~ ch~irter
SEC`TIOI\ 19. T~~is trancliise ~~rdinanc~~ s11~11 take effeet when all of the following
;.~~-~nditions have i~een me~: 1) i~ has ~ieen executed bv the parties; 2) the parties ar the
~:~~orpc~ratio~~ and E~rtC~Li»k ha~~e e~~cuied the Ne~work Services Agreement, 3) the parties have
~~~r?cuted the A~reei7ienL and 4) th<~ C'i~~~ and th~~ ('orpo~-ation have entered into an agreement
~~~rantin~ th~, Corp~ration ~~II 1-i~hts required or a~prupriate to perform as contemplated in this
~' 1'~tl7C~11St' ~
E'~ ~VI'I ~IESS WHEREUF, Citv ,~f C~carpus C'hristi and EarthLink, Inc. have executed this
F~ranchise this March ~'~-~_, :'40,
Citv of ('orpus Christi
:+
~3Y~
C'Jeor e . '~1oe, City Mana~er
EarthLink, Inc.
By: ~~~'v~-~.,~.1~ l~
Name: 5~,...,,,rl k'. 17~ 5,.,~if J-
~-_
1'ltl0. !rL /f =t!d -tL'~'-r~ rv.•rjt /
-~7'TES7
Armando Chapa, ty Secr~;tary
.~pproved as to forrr~: March _~~ , ~?i)07
~ y . ~t./ m°' ~~ ~ '~--
Lisa Aguilar, A~~stant Cit~r Attorneti~
ror C`ity Attorney
t_~: ~'~`~~L'..J..L.. AUfHUKltry
S1- C~Ot11ICil ~ ~ ~ ' ~.,~
. ...!'~-.~.;..
SECSETARY
/ 0~ t
-c>-
1C'i~~Ow'I,E DGMEN.1_.
~~~T,~~['E ~)}~ TEXA~ :~
t'(~~ N'I `, t)F Nl'1,:c~'E_ti :
1~he tote ,oin instrument was ackn<~wled ed before me o ~~
g g g r~~~~ "~~ ~,, , 2007, by George K.
Uoe, Citr Manager c~i~ the ( ity of ('~,rpu4 {`hristi, u Texas municipal corporation, on behalf of
sa~d ~ot-~?oration. ~
_ _ _ _ ': , ,, j ~. l I~ ,~~,
= ~,~ ~ u~d~,c, ~' ~.~-
j.. ~ rY,A ~~~ .! . r N -~
, ~,- ~;:, . 5 Notar-~ Public, State of Texas
~ _ .. __ _ ..~ ~
~C'I~tiOWLf-DGMEN'C
~~1~~A~c~ ~ ~F GEOkC~{~a ~
~'( )L', N7 ~' OP~'''-`~~= ~
~~~he tQ~'e~oing instrument was ackn«wledged before me on ~~4~C k~ , 2007, by
. ~ - ~l
~ , w1~~n~:~~j1_ ~~ t" c~t Earthl,ink. Inc. a Delaware co oration, on behalf of~
~A~~~ ,. ~ rP
;aid cvrporation. r`, y,,~~f~ y~ : r'~.t .< "~~' '
.
,~-~. ' ~ 1. ~ t~~~
' Notarv Public, State of Georgia
~!ot9ry PUbI1C. DOI~fB CO«r/tV, (-'pn.w~~
,w~y Coim~isslon E~Uas~ ~; j -_2~,10