HomeMy WebLinkAboutC2006-604 - 12/19/2006 - ApprovedFRAN('HISE AGRFEMENT
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Al~ ORDINANCE GR,~NTIN(~ TO EARTHLINK, INC. A N01~i-EXCLUSIVE TEN
Y'EA~t F'RANCHISE '('O OPERATE, MAINTAIN, CONSTRUCT, EXTEND, AND
UPGRADE FACII~ITIE~ OF A WIRELESS NF,TWORK IN THE PUBLIC RIGHTS-OF-
V-' A Y
WHGRE.aS, the City of ~_'orpus (`hristi, Texas ~the "City") and EarthLink, Inc. (the "Grantee")
c~~ntemplate enterir~~ into an agreE~rnent (the "Agreement") whereby certain assets of the City of
Corpus (_'hristi Cityw~ide lntegrated Wi-Fi Network will be transferred to Grantee in
consideration of cash an~.i coinm~tments of Grantee beneficial to the City's purposes for the
Network made h~~ Grantee entering =nto an agreement with the CC Digital Community
Development Corporatior~ (the "Corporation") tf~ provide certain network access to the City as
managed hy the Cor}?orati~~n ("Net~~ork Services Agreement"); and
W-HEREAS, for ~ mplementation of the .~greement, the City and the Grantee desire that
the Cit~ ~~-ant a franchis~~ for the Grantee to use the City right-of-way and other property as
pr~vided herein,
NOW, THEREFORE, BE IT ORDA[NED BY THE CITY COUNCIL OF THE
CITY OF CORPUS CHRISTI, TEXAS:
SECTION 1. "Tht City hereby grants to the Grantee a non-exclusive franchise to acquire,
c~nst~uct, install, operate~ maintatin, extend, and upgrade facilities of its wireless netwark (the
"'Vetwork") in, over, under and across the public rights-of-way of the City, including, without
limit~tion, the installation of radias, the right to erect poles or other structures for attachment of
radios, and the right to a~cess, use and install fiber. The City hereby grants Grantee the non-
exclusi~~e right to use any easements and rights-of-way owned or controlled by the City for access
to C'ity o~vned property or third party property (subject to Grantee obtaining approval from the
thir~i part~~ propert~ owrne~~) insofa~- as ~ansistent with the City's right in the easement or right-of-
~ ay and consistent with ~3nd subordinate to the primary purpose and use of the easement or right-
o f=~r~ay
SECTION 2. Tl~e term ~~f th~ franchise shall commence on the effective date of this
f~-anchise and shall cont~nue in ~ffec~ for ten (101 years. Thereafter, the franchise may be
renevaed ±or two (?) succzssi~re fi~~e (~l year periods of time upon at least six (6) months prior
written n~~tice bv (Jrantet to tlle t'orpol-ation, provided that Grantee has not committed a Major
Defa~lt (as defined in the Net«ork Ser~ ices Agreement) under the Network Services Agreement
t11at is continuin~ durin~ the six (t,) n~onths prior to any renewal term. Provided, however, the
f,~anchise shall e~p~re tip~~<<~ expira~ion c~f the N~twork Services Agreement, if earlier.
2006-604
12/19/06 -~~_
Ord0271 I10
EarthLink
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tiI~~CTION 3. Durin~ thc '~.:rn~~ t:he Citv hereby grants to Grantee the continuin~ ri~ht to
~~~~~~~z~ect ±~~_ tra»s~riit thr-ol~~~h ancl ~i~~.: i~; c~unnectictn ~~~ith the Net~tork the fiber optic transmission
~~~~tcm ~~«~ned or Icased b~ the ~'it~ ~n connc~ction with the Network ("Fiber System") in
v~ccordanc~ with standarcis an~i F~~~,>toculs i-1 thc~ Network Ser~~ices Agreement ar agreements
incittent<il thereto The t~it~~ her~~l,~~ ;~uthorizes the Corporation to cooperate with Grantee in
t~~r-a»tee s access oi~ the t~it~ Fihci ~in~l to exec~~te sucll additional agreements designating the
speed anc? number c~f lin~~~ <~f th~ Fih~~i~ System for Grantee's use and related charges, if any,
witl~out tl7e necessit~ of~ rurt}ier ~ppr~~l~als bv ihe City Council ("Leased Fiber"). Provided,
huti~ evei~, nothin~ llerein ~hall prf ~~ent +he C'ity from conveyin~ the Fiber System or any part
tl~er~of r~ the Corporat~on
SECTION ~. Dtu~ing the f en~~, the City hereby grants to Grantee the continuing right to
conn~t t~z, transmit throu~~h and u;t in ~onnection with the Network the wireless assets owned or
leaszd hy the City ("Cit~ Wireles_> Assets") in ~~ccordance with standards and protocols in the
Net~vork ~ervices Agreement or a~;reements incidental thereto. The City hereby authorizes the
Cc~rporation to cooperate with Grantee in Grantee's access of the City Wireless Assets and to
e~ecute st~ch additional a~;reement~ desi~~ating the speed and other specifications and charges, if
anv, wixhout the necessit~ of further approvals by the City Council. Provided, however, nothing
herein shall prevent the C ity from conveving thE~ City Wireless Assets or any part thereof to the
~ ornorat~~~n.
SF.CTION 5. The City c4wns, operates and maintains certain assets, such as building
rooftc~ps, radio towers, and data center or collocation facility locations (collectively, the
"Premises"'). During the ['erm, the Citv hereby grants to Grantee the continuing right and license
tca ~perate the Netwark on such Premises and tu access, and install directly onto ar within any
part of the Premises and uperate arid maintain r~dios, antennae and other devices in the number
designated by Grantee and to ihe co-location of equipment and telecommunications lines and
c~~rcui~s (`°Co-located De~~ices"} on the Yremises as set forth in an applicable Antennae Site Use
Agreement that identilies the particular Premises and locations thereon that are appropriate for
the i~stal(ation of such cievices ccrosidering the character and use of the Premises. The City
hereby authorizes the Corporation with respect to Premises under its control ar the City Manager
tc~ cooperate with Grantee in Gr<intee's access and use of the Premises, and to execute such
additional agreements designatin~ the specific Premises and related rental amounts mutually
a~ree~l upon by C~rantet° and tlie Corporatio~i or the City Manager ("Antennae Site Use
A~reem ent").
SECTION 6. A~ comper~sation for the rights and privileges herein conferred, Grantee
shall pay monthly to the Colporation a payment based upon a revenue share for the access
sen iees provided to custc~mers through the Netv~-ork; provided however, Grantee shall pay to the
C'orporation separate payrnents for the Leased Fiber and the Premises. The revenue share for the
access services will equal a percentage between r.hree and five percent (3-5%) (as specified in the
'~ietvu~rk Services .Agreement) of ~~rantee's total gross receipts collected and received by Grantee
for the applicable «~ireless access r-etail.. wholesale and occasional use serviees provided via the
'~`etwork in the C`ity~ an~l in the Cit4~'s e~tra-territorial jurisdiction locations covered by the
Network ii) less an~~ appl~cablc s~.les ta~:es or ~c•~vernment required fees, (ii) less refunds, credits
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an~j char~~-backs. i iii ) le~> an~~ am~~unt~ paid by the Ciry or the (~'orporation to Grantee ("Access
R~~ ~~~~nur~'~ ~. Aeces~ Re~ vnue eioc~~ r~~~; includc~ fr~s for add-ui7 products, CPE, installation,
a~l~~ertis~n;. eontent. hou~~ties ane3 ,-e1~r~~-ra1 fees, fees for sales through Internet commerce sites,
Vc:~I~' oi c~ther ~~oice capahilities ~~~~~;ce}~t ~is mav be ~-~reed in the Network Serviees Agreement).
T=~ re~ ~nEie payme~lt sh<~fl be +~u~_ ant'; ~ayable by electronic funds transfer as mutually agreed
u~~o<i b~~ tl~e Corpuralion a~~d Grantee »~ ihe Net~~~ork Services Agreement.
SECTION 7. ~Th~~ Citv her~bv ~rants to +~raT~tee the right to install, operate and maintain
the ~let~v~~rk and the related com~rlunieations eyuipment on the City street lights, traffic lights
ai~d connecting hardw are :_ind pole> 1"C i tv Poles") in accordance with standards and protocols in
tre 'rieht~ork Service5 Agrc;ement ~~r a~reements incidental thereto, which will assure location and
rnstallat~or~ consistent with public health and safety. Prior to final adoption of this ordinance,
Graiitee ~ iU provide the ~'it_y ~tiit1~~ its anticipated plans for mounting sites, and other assets and
facilities, including, but ~~ot limited t~~. communications towers, light standards, utility poles,
billl~oards and building r~~oftops, ~vhether owned or not owned by the City, and the City will
~nfortn tJrantee ot' approvals required, i f any, other than this franchise, and the process therefore,
~nd will certify that no ~ther approvals are required. Submission of any such anticipated plans
will not rtquire Grantee tE~ install tm any particular location or prevent Grantee from altering its
as-built plans. For~ expansions anu changes dur~ng the term of this franchise, upon notification
frc~n~~ Grantee the C`ity wil? promptly notafy Grantee c~f approvals required, if any, and the process
th~r~.fore. By agreement. the Cit~ will charge the Corporation with the duty to assist Grantee in
obtaining any changes required, tc~ prr~mptly contact and wark with City staff to facilitate the
rapi~i issuance of anv required appr~ovals, and to educate pertinent City staff on Grantee's rights
u~~d~r this franchise.
SECTIDN 8. The City hereby authorizes the Corporation to negotiate and enter into a
Network Services AgreeTnent with the• Grantee, whereby the Corporation and Grantee will
cuop~rate with one another as Grantee acquires, constructs, installs, operates, maintains, extends,
and upgrades facilities of ~ts Netw~~rk in the City and the Grantee will provide certain services via
the Netwc~rk far the City'~ or Cor}»ratian's benefit to be managed by the Corporation. The City
l~~reby ~ants the C~orporation all r~ghts, licenses, permits and authorizations necessary to manage
any s~rvices provided by rhe Grantee for the benefit of the City pursuant to the Network Services
Agree~ner~t, as more particularl~~ described ~n an agreement between the Ciry and the
Corporati~n.
SF,CTION 9. TI~e Net~ ~>rk Services Agreement shall obligate Grantee to maintain
adequate books and recoi-ds relating to its payment obligations under this franchise for four (4)
years from the date the payment ~~~as made. Grantee shall file annually with the Corporation a
staternent of Net~~vork access reve~lues t~~r that arinual period attributable to the operations of the
Crrantee's Netwark pursu~~nt to th~s franchise orainance. The Corporation and the Grantee may
a~ree to records and audit procedures in the Network Services Agreement.
S~:CTION 10. A?1 constn~etion. excavation, disturbance, or obstruction of rights-of-way
shall ~e carried out according to applicable fedr.ral, state, and local laws, and aeeording to the
s-~~u~re~~i7e~rts o(~~ the Director ~~f t~~~~interin~ S~:r~~ices of the C'ity, including req~iirements to
~-e?~xate t~<~rporation faciliEies and ~~> reF~,~ir or r-estore City propert_y, at the Grantee's expense.
SECT~ION ] l. ~I E~e Grantee ~f~iall can v out its operations under this franchise in
<c~mpliancv with all val~~~ federal. sta~~~, and Ic~cal laws. Nothing in this franchise shall be
~~c~nstrue~ ?o contract a~~~a~ anv Cit ~ pol~~~~ power to regulate and legislate to protect and promote
~h~ ~~ub(~c f~ealth, safetv, and weltar~~,
SECTION 12. 1~11e GrantLe shal} carrv out its operations in compliance with all of the
t~er-ms and :;onditions of th~~ Netwo~~k Ser~- ices A~i~eement.
SECTION l3. 1~~ addition to all rights of the City, at law or in equity, to enforce the
terms ot this franchise, the Cit~ mav forfeit and terminate this franchise in the event of
tern~ination of the Network Services .~~;reement in accordance with the terms of the Network
Serti ices Agreement.
SECTION 14. Neither Grantee nor the City shall be excused from complying with any
of the tenns and conditions of th~s franchise by any failure of the other party on one or more
accasions to enforce compliance with s~ich terms and conditions.
SECTION 15. Interpretation oi~this franc:hise and the rights and duties created hereunder
shali be pursuant to the constitution and laws of the State of Texas and the charter and ardinances
of'the Cit~-. Venue for actions concerning any matter or controversy growing out of or incident to
the duties and obligations in this franchise shall be in the state or federal courts of competent
jurisdiction in Nueces County, Texas.
SECTION 16. This franchise may be transferred in accordance with the City charter.
Further, Grantee can assi~n 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 ar
operations of the division of Grantee that is operating the Network. Provided, the City shall be
promptlv notified ~n writing of arly such assignment with such notification accompanied by
d~~cur~entation demonstrating that ~the assignment falls within the requirements of the preceding
sentence, Grantee may x~nter int~ one or more agreements for installation of the Netwark,
operati~n of the Network, or botl~ with one or more entities. Equipment used to provide the
Network rnay be leased hv Grante~~ ~ncL-c~r be suhject to security interests of vendors or lenders,
and. after the Agreement is entered int~~ by the City and Grantee, the City shall have no rights in
or tc~~ anv~ equipment related to or ~ued in connect}on ~vith the Network. Provided, however, upon
erpiration or termination uf the Network Services Agreement, disposal of the equipment shall be
ir~ accordance with the Ne~wark SE~~ vicE:s Agreement.
SECTION 17. I'~ for an~,~ reason any ~ection, paragraph, subdivision, clause, phrase,
~~~or~ or prc~vision ~f this ~~rdinanc~~ shall be held invalid or unconstitutional by final judgment of
~ court o~~ eompetent jurisdiction~ it s11a11 not a*fect any other section, paragraph, subdivision,
clause, phrase, word or pr~~vision c~`'thi5 ordinance, for it is the definite intent of the City Council
th~~t every section, paragraph, stibc~~~ isinn, clause, phrase, word or provision hereof be given full
io~-cc a~~~l c~tf~ct for ~ts pur;~ose; pr~>vidc~i, ho~ev~,r, that this paragraph does not apply should the
~~c~rlx~en~at~on pru~~ided tr, the (~'it~E hereunder h~~ held invalid by final judgment of a court of
~~.c~mpet~nt jurisdiction alter all appe~~<<. if an~~_ ancl the Citv may in that even declare this
+~rz~~~chisc >>ull ancf ~. oi~i. lf a~1y c9Lle~~~ion ~_~f <<uthoriry ~nade herein shall be held invalid or
~_~ncc~>nstit~~tional by .~ cor~=-t of con~peteT~t jurisci~ction, authority shall be deemed vested in the
a~pr~pr~at~~ auth~~~-in~ to ~~:ercise the dclegated ~~uthority and this ordinance shall be otherwise
_u~aftiect~d
SECTION 18. The Grante~:~ shali pay all costs of publication of notice of this ordinance
~s r~q~tire~i by the: C~~ty charter_
~ECTION 19. I his franchise ordinance shall take effect when all of the following
condit~ons have been met 1) it has been executed by the parties; 2) sixty (60) days have expired
si~ICe finai adoption by the C:ity C~~uncil, 3) the parties or the Gorporation and EarkhLink have
e~:ecutec~ the Network Services A~reement, 4} tr~e parties have executed the Agreement, and 5)
the ~_'ity a;~d the Corporat~on have entered into an agreement granting the Corporation all rights
requ~red o~- appropr~ate to perform as contemplated in this Franchise.
IN WITNESS WHEREOF. Citv ~~f'Corpus Christi and EarthLink, Inc. have executed this
Fr-anc~ise this March ~ , 200?.
Citv a~f Corpus Christi
By: ~
- -- _ -- _ ___
Geor ~ ~ ~ Noe, City 1Vlan~ger
~I'7'EST
~ ( J
Armando Chapa, City ecretary
Approved as to form: Mar-ch ~, ?00?
k.
By' ~ .~'------ '
L~sa Agui(ar, Assista~ Ciry Attorney
F ur Citv Attornev
EarthLink, Inc.
By: ~'~ ~
Name: S ~~ / c ;.tio~~- J~.
Title: ~ v!' - G z~ ~~-;/ ~,~,.,,.~ I
~ "~ t~~v AIJTMORIZEb
~' (~OtlKCIL ~..=~-~~
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~SEC v
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A~~KNOWLt~:DGVIENT
~`l ~~ T'E ~) k; TE k:a S;
a:'t)1 NTY OF NI~E(_'ES ;
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Tt~te tare~aing instrtiment ~vas acknowledged befc>re me on ~~ , 2007, by George K.
`~loe, Citv Manager ~~t~the t'itv of C~7rpus Christi, a~I~exas municipal corporation, on behalf of
sa~a corporation. /
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'~ '`` .,. _ ~s Notary Public, State of Texas
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ACKNOWLEDGMENT
STATE t~~ GEORGIA §
COL'NTY OF ~~''~~
The fc~egoing instrument was acknowledged before me on I' C.!-C~ -`~ , 2007, by
t-~1'~?~~,t >[Title] af EarthL.ink, [nc. a Georgia corparation, on behalf of said corporation.
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,`! Notary Public, State of Georgia
~rv Public Dou~s~~~^h` ~"o-°~~
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