HomeMy WebLinkAboutC2006-605 - 12/19/2006 - Approved~GREEMENT FOR SERVICES
BETW'EEN
THE CITY OF CORPUS CHRISTI
AND
THE CC DIGITAL COMMI'NITY DEVELOPMENT CORPORATION
This A~reement is made by and between the City of Corpus Christi, Texas (the "City"), a
hc~me rule city under the C onstitution of the State of Texas, and the CC Digital Community
Development Corporation (the "Coiporation"j, a non-profit corporation incorporated under the
pro~ isions of Subchapter I), Chapter 431, Texas '~'ransportation Code.
Recitals
The purpose of thi~ Agreement is to furthE:r implement the purposes City of Corpus
Christi Citywide Integrated Wi-Fi 'vetwork described in the City's Resolution No. 026635,
passed cn _tanuary ~], 20~F (the "R_esolution"), which authorized creation of the Corporation.
The City a~~d the Corporatiun have determined that the objectives of the Resolution can
be most expeditiously and securely~ realized through a sale of the wireless assets of the Network
to Eat~hLink, Inc, ("EarthLink"), a private sector ~ompany with the requisite expertise and
~-esources ~o promptly undertake operation of a fu(1-service Network, and the execution of a
Network Services Agreem~nt (the "NSA~') betwec;n EarthLink and the Corporation.
The City wishes accordingl~y to change the role of the Corporation to oversee compliance
with the NSA Services A~reement and to manage the Wired Network, the Community Portal,
and reiated aetivities described hereunder~.
ARTIC"LE 1
DEFINITIONS
In addition to any ather tern~s defined within this Agreement, the following terms, when
used in this Agreement, shall have the meanings ascribed to them below in this Article 1, unless
the co~text clearly requires otherwise.
l.l Authorized Representative any officer, agent, employee of or independent
contra~etor retained or employed bv either party, acting within the scope of authority given such
~erson by ~uch part~
l.2 City Council - the City Council of the City.
l.3 ~'ity Manager the Cit~ Manager of the City, or his designee.
l.21 City Purpos~s - all ot the public purposes recited in Section 1 of the Resolution.
2006-605
12/19/06
Ord0271 O1
C'CDCDC
1.~ Community Partner - a Partner, such as a charity or non-profit group, that uses the
net~ ark tc~ provide services that implement publir. purposes of the City.
l.6 Contractor - a person that contracts w ith the Corporation to provide goods or
services to support the Corporation'~ activities under this Agreement, including but not limited to
~~peration, maintenance, u~grades, ; xpansions, m~inagement, portal applications, and other goods
~~r sc•rvice~.
1.? Educational Partner - a Partner that is a school district, institution of higher
education, or other non-prc~fit educational institution located within the boundaries of the City
that ases the Network to c~~rry out it~ educational purposes.
1.8 Facilities - all components ~Fthe Citv's Wired Network (the "Wired Network"),
~ncludin~ cabling, equipment or sottware necessary for its operation, including but not limited to:
a) Wired Network; portal; tiber, other cable backbone; Network Operating Center;
~~'~red Network hardware and equipment; management equipment; routing equipment;
sw~tches; Network management software; all network addressing and routing (VLANS,
IP r~oute tables, and OSS);
h ) Network Bandv~~idth;
c) City real property and ri~hts-of-way occupied by cable, equipment, or other apparatus
supporting the Wired Network (including rights of ingress and egress);
d) the intra-City e~iterprise network, including components and services used in common
to deliver intra-Citv communications (for example, cellular telephone service) and
including connecticns (wire, fiber, or RF) from the enterprise network to particular City
departments, but does not ir~clude devices used by City departments, including but not
limited to, s~~itchin~ equipment, personal computers, telephones, cellular telephones,
printers, faxes, scar~ners, un~que non-enterprise servers, department software, inside plant
cabling, traffic signals, and r~iobile computers;
e) office space sufl icient to Ilouse equipment and personnel necessary to carry out the
Corporation`s functions under this Agreement; warehouse space sufficient for housing
and staging eyuipment and 5upplies, and ozher building space necessary to operations of
the Wired 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
( o~-poratian:
f} the Fiber tietwork, equipment, and other apparatus depicted in Exhibit A(consisting
of one page entitled City Fiber Map and tw~o pages entitled City of Corpus Christi Local
and Wide Area Netv~~arkj, attached hereto and incorporated herein; and
u) all other property, real or- personal, comprising the Wired Netwark or supporting its
~~peration, as the V~~~ired Network presentl}~ exists or may be expanded or upgraded, which
~z~av include ~n the tuture ~~ ireless equipment and software.
Prc~~ ided, I~o~vever, specifically excluded from the definition of "Facilities" are any of the
"Assets' conveyed to EarthLink in the Asset Purchase Agreement.
1.9 Governmental Partner - a Partner that is the Federal Government, the State of Texas
ur ~ govenunental subdivision of the State with baundaries inside the City limits of the City that
usec t~e Network to carry out the purposes for which it was created.
1.10 Internet - the global ~nformation system that: 1) is logically linked together by a
global~y uiiique address space based on the Internet Protocol (IP) or its subsequent
extensions.'follow-ons; 2) ~s able to support communications using the Transmission Control
~ 1~CP/~P? ~uite or its subsequent extensions/follo~~-ons, and/or other IP-compatible protocols;
and ~) provides, uses or makes accessible, either publicly or privately, high level services layered
~~r~ tlie cammunications and related infrastructure ~escribed herein.
l.l 1 ISP - lnternet Service Pro~~ider.
Loe~l Business -:~~ local business as defiiied by the Corporation.
1.l 2 Maintain or ;'Ilaintenance to keep up, preserve, and support the condition and
e~istence «f.
l.l 3 Network - the wireless mesh communications network conveyed by the City to
EarthLink in the Asset Purchase A~reement.
l.17 Operate or Operation - to conduct, direct, and manage.
1.18 Partner - a person that is g~~~en the right by contract to use the Community Portal to
~rovic~e products, informat~on, education, and other services to Users in accardance with City
Purposes. Partner includes Local Crovernment Partners, Community Partners, Educational
Partners, Governmental Partners, st-bgroups of thc>se Partners, and other discrete groups that may
he deternlined by the Corp~~ration.
1.19 Persor: - an individual, a partnership (limited or general), a limited liability
i;ompar~~, a eorporation, a~~ association, a joint stock company, a trust, a joint venture, an
unincorporated organization, an ind~vidual, or oth~.r legal entity or governmental entity.
1,2U Zlser - a person, whether business, re~idential, or visitor, who shall have free access
( as pravided in Section 5.4 ) to the purtal e,f the Network to find and utilize services made
available thereon.
l,22 VoIP - Voice over Internet Protocol.
1,23 WiFi - wireless fidelit~.
ARTICLE 2
TERM
"l~h~s Agreement shall be effective on the Effective Date of the NSA and shall continue in
~ffect unti1 termination or expiratioil of the NSA.
ARTICLE 3
GRANT BY CITY
3.l Grant of' Facitities. The Citv hereby grants to the Corporation the exclusive right
and ~uthority to Op~rate, Nlaintain. extend, upgrade, use and control the Facilities as necessary to
accor~lisl~ the City Purposes. The City~ hereby leases to the Corporation all the City's personal
proper~y cvmprising the F~~cilities, and hereby grants a license to the Corporation to use all the
C'ity's real property and interests in real property ~;omprising the Facilities, and grants the
Corpo~a~tion the right to sub-lease or sub-license its rights in these to EarthLink as the
~ c~rporatic~n deems necessary to meet its c~bligations under the NSA. The City Manager is
authorized to annually des~gnate specific office, building, and starage space on Cityproperty
necessarv for the Corporat~on's opE~rations.
3.2 Assignment of' Rights. The C~ity hereby assigns and grants to the Corporation the
~„c~ntracts and rights described in Exhibit B, attached hereto and incorporated herein, and all other
contr~ets and rights held bv the Cit_y~ necessary to carry out its obligations under this Agreement.
rhe Cit~ 1~lanager is authorized to add to Exhibit B any omitted document that is subsequently
a.dentifie~~.
3.3 Limit on Grants. T'he ~rants in this f~-ticle are limited by the City's interest in any
partict~lar right or propert_y and do t~ot purport to ~rant any greater interest.
.~RTICI,E 3.1
GRANT RE LATED TO NETWORK SERVICES AGREEMENT
3.1.1 Definitions.
"Antennae" means antennae, mounting and attachment hardware, and masts,
cammunications, nctworking, internet, computer, and radio equipment and certain
personal property c?f Corporation, including, without limitation, equipment panels,
cabling, cabinets, e~nergency power systems and other related personal property that are
components of a br~~adband wireless syste~n.
"Antenna Site" means the building rooftops, radio towers, and data center or
collocation facility locations listed in Schedule 3.6 to the NSA.
"Citv Poles" has the rneaning defined in Section 3.1 of the NSA.
"Equipment"' means radios, antennae, gateways, wires, cables, fibers, filters,
amplifiers and othea~ equipment, and switclling, processing, monitoring, transmission and
distribution cumponents of ::~ broadband wireless system, and upgrades and new and
ian~~roved technolo~;y and d~vices related thereto.
"Fiber" means the fiber optic transmission system described in Exhibit Schedule
~ ~ to the NS.a.
3.1.2 License to l~se City Traffic Lights and City Poles. The City hereby grants to
the Carporation a license tc~ place Equipment on City Poles. To the extent compatible with
public safety, the City Engineer will prepare standard specifications allowing the Corporation to
place the Equipment rn starldard locations with standard methods without further approval. For
non-st~ndard installations <~n City P~les, the City ~ngineer will prepare a procedure for
~;xpeditious review~ and decision. T'he C'ity hereby grants to the Corporation the right to grant to
~arthLink a sublicense of the rights granted in this paragraph substantially in the substance and
t~o~-m set torth i~l Exhrbit C to the NSA_
3.1.3 License to Place Antennae on Antenna Sites. The City hereby grants to the
Corporation a license to place Antennae an Antenna Sites subject to appropriate location and
attachment requirements a~ determined by the Cit~/ Manager or designee. The City hereby grants
to the Co~aration the nght to grant to EarthLink ~~ sublicense of the rights granted in this
~ara~raph >ubstantially in the substance and forn~ set forth in Exhibit D to the NSA.
3.1.4 License to Use City Fiber. I'he City hereby grants to the Corparation the
continuing right to connect to, transmit through and use the fiber optic transmission system
described in Schedule 3.7 c~f the NS~ for backhaul purposes, with the right to subgrant such right
to Earthl_.ink.
ARTICi.E 4
PUBLIC SERVICES - PRIORITIES
4.1 City Services. City departments shall utilize the opportunities provided by the
Network. the Wired Network and the Community Portal to provide improved services at the
lowest possible cost to residents.
4.2 Priority of Public Health and Safety~ In administering the NSA, the Wired
Netwot~k and the Co~nmunity Portal and carrying c~ut its obligations hereunder, the Corporation
shall give first priorit_y to the deliverv of~ police, fire, emergency medical, emergency
management, and oth~r se~~ices tha! directly impact public health and safety, including
~uspension of all other uses of part c~r all of~the Network until the public safety is restored, if
deemed necessary bv the (`<ty.
4.3 Procedures. The Corporation shall develop appropriate operating procedures for
uo~nmunieation and implementation of priorities.
ARTICLE 5
GENERAL DUTIES OF 'THE CORPORATION
S,l Corporation's Duties and Responsibilities. The Corporation shall have the duties
and re~ponsibilities set forth in this .~rticle,
S.2 Administration of Network Services Agreement. The Corporation shall
administer the NSA to insure perfo~7nance according to its terms and to obtain its full benefits for
the cumni~inity.
5.3 I3evelopment of Community PortaL The Corporation shall develop and manage
the C'o~nmunity Portal described in the NSA.
5.4 Development of Wired Network. The Corporation shall develop and manage the
Wired Network, including ~uality ai~service and traffic management through hardware and
softvv~e to be detennined !~y the Corporation.
5.5 Network Available to .411. The Corpuration shall promote advancement of the
highest level of electronic commun~cations technology for the community, and shall promote,
::oordinate, facilitate, produce, and assist in assuri~ig that access to the benefits of the Network
and to electronic communications teehnology is available to Customers of all economic means in
all geographical areas within the Citv, In this connection, the Corporation shall, if financially
feasibl~, establish a program to assist economically disadvantaged eitizens to purehase
equipment necessarv to access the'~;etw~ork, and otherwise assist citizens with training and other
seiti~ices to promote digital equity.
5.6 Information about Network, The Cc~rporation shall inform City residents of the
~ietwo~k and the Community Portai and related services available to them. The Corporation
shall d~velop and implement a mark~tin~ plan, ineluding advertising and other public relations
act~iv:ties. The Corporation shall coordinate with EarthLink, Partners, advertisers, and others to
promote full aecess to the beneficia; uses of the Network.
5.7 Training and .assistance. "l~l7e Cocporation shall promote training and technical
assistance that will enable all residents to utilize the Network, the Community Portal, and the
Services a~ ailable on thereun, and may charge reasonable fees to recover the cost thereof.
5.8 Resource Center. The ('orporation shall serve as a resource center for information,
mater-ials and equipment relating to dise of~the Net~avork, the Community Portal, and
techno~ogical resources_
5.9 Community Rules and Regulations. The Corporation shall establish and
admin~ster all rules, regulations, policies. and procedures necessary to Operation of the
Comrr~nity Portal.
5.10 Coordination. The C c~rporation shall coordinate use of the Community Portal by
C~ity departments and Parti~ers, and ~hall resolve any conflicts that may arise between the City
and Partners and bet~veen ['artners.
_5.l I Securitv. Th~ Corporation shall institute reasonable safeguards for the security of
?he C`ommunity Portal.
5.12 Privacy. The Corporation shall institute appropriate mechanisms to protect privacy
and confidentiality on the ('ommunity Portal in accordance with law.
5.13 Small and Local Business Promotion. The Corporation shall explore how the
~:ommunitv Portal can be used to enhance the success of small businesses within the City and to
enhance the success of businesses primarily owned by City residents, and may implement
prograans tor that purpose-
5.14 City Purposes. The (~'~orporation shall perform all the duties and responsibilities set
torth in thi~ Agreement in <iccordance with the City Purposes and in accordance with any
addiUOnal purposes or directives thai ma~ be adopted by the City Council.
5.15 Improvement to City Efticiency and Services. The Corporation shall use the
expertise gained in its adm~nistration of the NSA, its operation of the Community Portal, and
~ther ~ctivlties to continuously seek to identify technologies and applications that will enable
City departments to provide impro~ ed services at reduced cost, shall call these to the attention of
t:ity mana~ement, and shall assist ('rty management in implementing them. Citymanagement
and the Corporation will wurk cooperatively and proactively to achieve full benefit of the
'~Tetwa~k and the Commumty Porta! in the delivert~ of City services.
ARTICLE 6
GENERAL POV4'ERS OF THE CORPORATION
6.1 Generai Powers. The t_'orporation shall exercise all of its powers necessary or
conver~ient to the performance of the duties and responsibilities set forth in this Agreement.
Without limitation on the fi~regoing exercise of powers, certain specific powers are specified
~elo~v.
6.2 Contracting. I'he Corporation shall enter into contracts for design, engineering,
constrt~ction, procurement, financiair legal, and all other goods and services necessary for its
activities u~ider this Agreement.
6.3 Fvnds and Property. ~he ('orporation may acquire and receive funds and property
of any kind for the conduct of its act~vities under this Agreement, including but not limited to,
comp~nsation from Partners, advertising revenues, contributions from the City, revenues directed
to it ur~der the NSA, purchase, com~eyance, lease, gift, grant, bequest, legacy, device, ar
otherwise, and may grant, convey, transfer, lease, sublease, license, sublicense, mortgage,
encumber and dispose of fiinds, propert_y, and income there from in furtherance of its activities
under th~s .Agreement. Th~ Corporation shall sen~e as a receiving, holding and disbursing entity
tor monies intended zo pra~note electronic communications.
6.4 Operationai C'ontracts; Minimal Staff. The Corporation and the City believe that
ihe CQrporation can most ~ffectivel~ carry out its duties and obligations under this Agreement by
a~ oiding duplication of resources and bv conducting its day-to-day activities through contracts
with Fersons already possessing experienced staff~ and resources relevant to needed services.
Consequently, it is preferred that tY~e Corporation not employ Operational and Maintenance staff,
rather it is contemplated that the C~~rporation will carry out its Operational and Maintenance
~uties and responsibilities ?hrough sen~ice contracts with private Persons and with the City. The
~~'~arporation may employ administrative staff, but will work to keep any administrative staff to a
+.ninimum. For purposes o~`this Section (~.4, the term "administrative staff' is limited to general,
o~~erall administration and coordination ~~f the Coaporation's activities; administrative support to
=:he C"orporation's Board o~~Directors, o~ ersight oi Contracts with Partners and Contractors, sales
and promotion, and clerica( assistai~ce related thereto.
h.5 Manner and !~Zeans. I he ('~~rporation shall be solelv responsible, in its discretion,
for the manner anci means ~~y which it carries out ~ts duties and obligations under this Agreement.
6.7 Intellectual Property Rights. The Corporation may develop all intellectual
prapet#y rights required fo~~ the ad~~ertise~nent, promotional activities, marketing and public
relatians related to its actis ities under this Agreerr~ent. Any and all intellectual property rights
shall be th~; sole and exclusive pro~erty ~~f the Cit~,~ and the Corporation.
6.8 No Sale of Property or Encumbrances. Except as provided in this Agreement, the
Corparation shall have no ~~uthorit} to sell or otherwise alienate the Facilities owned by the City,
and ~nay nut create, assume or suffer to exist any mortgage, pledge, lien, charge, security
~nterest, ar other e~icumbrance against the Facilities ar the Network, without the written consent
:~f ihe Cit~
ARTICLE 7
AGREEMF.NTS WITH PARTNERS
7.1 Contracts with Partners. Based on the City Council's determination that
partic~ation of Partners in the Network will multiply the benefits of the Netwark, the City
~irects and ~uthorizes the Corporation ta negotiate and enter into license contracts for use of the
Community Portal by Local Business Partners, Cc~mmunity Partners, Educational Partners, and
iJovernmental Partners, and other Partners that may be determined by the Corporation, where
such contraets will advance the Citv Purposes. Trie Corporation may enter into one agreement
with rnembers of a Partner group ot ma} enter into an agreement with one member that
represents the interests of ~ Partner ~roup, where the Corporation determines that such an
arrangement would best ser-ve the Piirposes of the Network. The Corporation shall actively seek
Partne~s whose participatic~n is especially likely t~ enhance jobs and economic development in
the comm~mity. The term "Partner ` shali ~lot include a legal relationship with the City or
~'~~rparati~~T~ in the nature ~~f a partnership as a business entity.
?.2 Partner Contract Provisions. All contracts with Partners shall provide: 1)
substantially similar terms and conditions for all Partners similarly situated; 2) compliance with
al~ rules. regulations. and policies gc~verning the Community Portal; 3) indemnity of the City and
+he ('orporation from responsibilit~ for any action of Partners; 4) appropriate insurance far
Partners naming the City and the Corporation as additional insureds; 5) disclaimer of any
~iabi(ity ~f the City or the t'orporat~un ti~r any actaons of Partners or disputes between Partners
and their constituents or customers. 6) acknowledgement by the Partner that the Corparation and
th~ C'ity shall have no resp~nsibilit~ for content provided by the Partner or its users; 7) for
;~ssignment to the City; 8} ~~o City liability for acts and omissions of the Corporation; 9)
te:-m~natron of contract as c~nly remedy for a judicial determination or new legislation that City or
f~~rpo~ation lacks authorir~~ with respect to any aspect of the Community Portal; 10) reference to
th~ priorities in Article 4; s 1) acknowledgement of open meetings and records laws; 12)
~ro~•~sions to protect propr,etary infi>rmation of Partners; and, 13) other provisions determined
appropriate by the C~~rporation.
?.3 Local Business Partners. C~~ntracts with Local Business Partners shall provide for
fair campensation to the public for ~ alue received through use of the Community Portal, which
may include advancement .~f local ~conc~rnic development.
7>4 Community Partners. Contracts with Community Partners shall provide for fair
~ompensation to the public through a commitmen~ by each Partner to deliver services that carry
~ut pablic purposes of the ~~ity.
7.5 Educational Partners. Contracts with Educational Partners shall provide far
pay-rrient based on recover~ of the C'orporation's costs of administering the Community Portal.
7.6 Governmental Partners. Contracts with Governmental Partners shall provide for
paymant based on recover~ of the ('orporation's c~sts of administering the Community Portal.
7.7 Form of Contracts. The Cc~rporation shall develop forms of contracts to be used for
~imilazlv s~tuated groups o~~Partners
7.9 City Departments Not Partners. W}iile City departments will utilize the
(.: ommunity Portal, they ~~i ll not be considered Partners under this Article. The Corporation will
~nter irrtc~ a separate, annua( contract with the City to govern City use of the Community Portal,
ser-vices and property to b~ providecl by the City, ~nd other matters necessary to the
Corpo~ation's administratic~n of its ~3utie~.
ARTIC LE 8
PRO(:'UREMENT CONTRACTS
8.l Authorization for Procurement Contracts. The Corporation is authorized to
~ antra~t with Contractors for the prc~curement of all goods, services, and property necessary or
_~~c~n~~enien~ to carry out its responsibilit~es under this Agreement, including but not limited to
~c~~lstructi~~n, installation, ~quipment, facilities, pr~ofessional services, leases, licenses, fiber, and
:-eai ,~r personal property. The Cor~~orataon will use the procurement process the Board deems
rn~st ecunomical, efficient, and ad~~antageous for the Network.
8.2 Adverse Actions Regarding Bonds. To the extent the Corporation is given control
~f monies derived from or Facilities financed through obligations, the interest on which is
~ntended to be excludable t`rom the income of the holders thereof for federal income tax
purposes, the Corporation shall tak~ 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 ~ 986, as amended, and regulations promulgated thereunder.
8.3. Bonds To Be approved B,y City. The Corporation may not issue bonds, notes or
<~ther debt ~bligations exte~lding beyond the currez~t fiscal year without approval of the City
~'~~uncil h~ resolution, pro~~ided this requirement cioes not apply to the NSA as the NSA has
already been appro~ ed pursuant to c~rdinance Nurnber 027103. Provided, however, the
(~'~~rporation may enter intct contracr.s not exceeding three years without such approval for
equipment maintenance, installment leases or purc;hases, or similar contracts deemed by the
~.orporation to conform to good bus~ness practiees.
ARTICGE 9
INITIAL FtiNDING AND STAFFING
In ~rder to implement the Network at the earliest possible time, the City may advance
funds priar to the fiscal year commencin~ August 1, 2006, as it deems necessary, as start up costs
to operate zhe 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
desigrtee5. The Corporation shall develo~ a plan for reimbursing the City for the start up costs
including the actual staff c~~sts of the. City, and reirnbursement shall be implemented as part of
the C'c~tporation's annual budget submission under Article 11. No reimbursement for cost of
City staff shall be made until the C~ty presents an itemized invoice to the Corporation. The
E'orporation Board may re~ iew the ~nvoice, and request any reduction believed appropriate.
~fter considering any request by the Cor-paration r3oard, the City Council's determination of the
dmount of the invoice shall be final
ARTICLE 10
FtiNDING OF CORPORATION ACTIVITIES
10.1 City Funding and Support. Each year, from August 1, 2006 through the term of
this A~reement, the City will pay the Corporation $2,~00,000 in consideration of the
Corpo~ation's obligations as provided in this Agreement. In addition, for the first fiscal year the
Citv will contribute ~1,000,000 ro fund staff, insurance, and other costs necessary for start-up
c~peration ~?f the Netwark; after the f irst fiscal year, the City may continue such support on a
decl~n~n~ hasis, as it deem~ necessary. ]f revenues are available, these additional contributions
w=.11 ~ie rei~nbursed to the t'ity under a mutually-agreed repayment schedule. The City's
:,antributiuns wili be reflected each year in the Coiporation's budget. After the first five years,
t~h~ (~'ity and the Corparatiun will renegotiate support that may be provided by the City.
10.2 Funding Sources. lt is expected that the Network will be supported by payments
trom the City as described in Secti<m l 0. ~, payments from EarthLink as provided in the NSA,
~~ayments trom Partners for their usage e>f the Community Portal, and by advertising revenues.
I'he Corporation mav instiiute other funding such as fees for communication-enhanced services,
~~se of infrastructure assets_ and other sen-ices and assets. The Corporation is authorized to seek
tund~ng fr~~m other ~ourcc;s such as government or foundation grants and loans. The City may, at
~ts diser~ti~n, contribute additional fundin~. Funds received by the Corporation may only be
~~sed for the purpose of ful~illing it~ obli,~ations ur~der this Agreement. The City will pay debt
serv~ce on ihe obligations ~old to fir~anc~ the initial cost of construetion the Netwark.
10.3 Negotiation of Payments. i'he Cor~~oration shall negotiate payments from Local
dJC~vernrtient Partners, Educational Partners, Government Partners, Community Partners, and
other Partners for use of~the Comm~~nity Portal. Payments shall be without unreasonable
discrimination to similarlv-situated Pariners.
10.4 Obligations Subject to Available Funds. The obligations of the Corporation
~nder this Agreement, including upgrades and maintenance, are subject to available revenues.
"rhe Corporation w~ill endeavor to fund its obligations from revenues generated through its
~ctiti°ities under this .Agreement. Hc~wever, if necessary for it to carry out all of the duties and
i-esponsibilities required of it in Article ~. the Corporation shall request the City to contribute
iundir~g in addition to the (`ity's payment described in Section 10.1. A request for such
additianal funding shall be made as part of the Corporation's annual budget submission pursuant
to A.rticle ~ l, shall identify and full~ describe the ~3uties and responsibilities that will not be
tulfilled without the contribution, and shall provide an estimate of cost savings to City operations
from the activity funded th~t may offset the additional contribution. If it is expected that future
t'c~rporation revenues will he sufficzznt to reimburse the requested contribution, the request will
include a schedule for reimbursing rhe (._'ity for its additional contribution. All obligations of the
C'itv under this A~reement are subject t~a appropriation for each fiscal year.
ARTICLE ll
ANNUAL BUDGET
1 l.l Fiscal Year. The Cor~oration shall use the same fiscal year as the City.
11.2 Submission of Budget to City. Eacl~ year, by the date requested in writing by the
City !~fanager, the Corporation shall submit its proposed operating budget and five-year capital
budget to the City Manager, who shall forward it to the City Council.
,.,u , ,. ., ~,~,K _~. _..,,o. _ . _ _ . _ _,~. . ~....~ ~... _......~ ,~
l 1.3 Reimbursements to ~'ity. Che bud~;et shall provide for reimbursement to the City,
as provicied elsew~here in tt~is A~re~ment~ for advances of funding and services furnished by the
~"'it~
11.4 Approval b~~ Cit,y. The Curporatior's proposed operating and capital budget will
~e reviewed and approved or modified h~ the Citv Council during the City's regular budget
pracess. The budget, as approved c~r modified by the City Council shall be final.
11.5 Operations within Budget. The Carporation shall operate and manage the
'~Ietwork ~ ithin the overall limits of the approved budget.
ARTICLE 12
INDEMNIF[CATION
12.1 Definitions for Article. 1'he follow~ng terms, as used in this Article 12, shall have
~he following meanings:
a- '`City" includes the officers, employees, and agents of the City, as well as the City.
b j``Clainis" means all damages, losses, injuries, liabilities, penalties, disbursements,
costs, charges, assessments. and expenses ~including attorneys' fees, experts' fees and
expenses incurred ~r~ investigating, defending, or prosecuting any litigation ar
proceeding). assertions, demands, litigation, suits, proceedings, causes of action (whether
in tort or contract o~- in law ~r at equity), or judgments.
c)°`Defenc!" rneans to prov~de anci pay for the (egal defense of the City against a Claim
w~ith counsel reasonably acceptable to the City.
d) "Indemnifi~" means to pr~tect the City against a potential Claim and/or to compensate
the City for a Claim actualh~ incurred.
el ~`WaivE~" means to know~ngly and voluritarily relinquish a right and/or to release
another part_y from iiability in connection ~vith a Claim.
12.2 INDEMNITY BY CORPORATION. TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, THE CORPORATION SHALL INDEMNIFY
AND HEFEND 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 OBI~IGATION TO INDEMNIFY AND DEFEND WILL 1vOT BE AFFECTED BY
THE ACTIVE OR PASSIVE ORDINARY NEGLIGENCE OF THE CITY, WHETHER
OR NOT LIABILITY W(THOUT FALJLT OR STRICT LIABILITY IS IMPOSED OR
SOUGHT TO BE IMPOSED ON THE CITY.
12.3 WAIVER BY CORPORAT[ON. 1'O THE FULLEST EXTENT
PERI~ITTED BY APPLICABLE LAW, THE CORPORATION WAIVES ALL CLAIMS
THA'~' IT MAY HAVE AGAINST THE CITY FOR CLAIMS ARISING, OR ALLEGED
TO A~ISE, FROM THE CITY'S (1) PERFORMANCE OF ITS DUTIES AND
OBLI~ATIONS UNDER THIS AGREEMENT, (2) BREACH OF THIS AGREEMENT,
OR (3) V10LAT10N OF OR FAILURE TO COMPLY WITH APPLICABLE LAW. THIS
V~=AI~'ER WILL NOT BE AFFECTED BY THE ACTIVE OR PASSIVE ORDINARY
'~EGLIGENCE OF THE CITY, ~'VHETHER OR NOT LIABILITY WITHOUT FAULT
OR STRICT LIAB1LITti" IS IMPOSF,D OR SOUGHT TO BE IMPOSED ON THE CITY.
12.4 General Scope of Indemnities and Waivers. The Indemnities, Waivers, and
~~h3i~ation> to Defend in this Articl~ 12 ~re independent of, and will not be limited by each other
~~r any ins~irance obligatior~~s in this ~~greement (whether or not complied with), and will survive
Uh~ Cantrait Expiration Date unti( all related C'laitns against City are fully and finally barred by
appl~cable law.
ARTICLE 13
[NSURANCE
13.1 Insurance Maintained by Corporation. The Corporation shall obtain and
maintain in effect the following policies of insura~ice:
a i Workers' Compensation Such workers' compensation insurance coverage as may be
required by law or ~ieemed prudent by the Corporation, including at least $100,000
Bodily Injury by Accident each Accident, $100,000 Bodily Injury By Disease each
employee, and $SOt?,000 Bodily Injury by Disease Policy Limit;
b> Commercial General Liabilitv. Commercial general liability insurance with a limit of
af least $1,0~O,OOU Gombined Single 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 i 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 othe~r vehicles.
d- ~.lmbrella Liabil~ty. At least ~?,000,000 per occurrence of umbrella liability coverage
~~ritten on an occurrence bas~s;
e- Professional Liability. At least $1,000,~00 per claim and $1,000,000 aggregate;
f j~~'rime and Fidelity Coverage. At least `6500,000 per occurrence of coverage for 1)
einployee dishonesty, 2) forgery or alteration, 3) theft, disappearance and destruction, 4)
robbery and safe burglary, and 5~~ computer fraud; and
g j 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 :>ubject to review and approval by the City's
Director of~ Risk Management. Sai~3 Director may modify the requirements for coverage
prc~v~ded h~rein based on review of z-isks and market conditions.
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
ratin~ of at least A-~ status as rated in the most recent edition of Best's Insurance Reports, shall
be issued as a primary poliey, shall contain an endorsement requiring sixty (60) days written
notice fronl the insurance c~mpanies to the City and the Corporation before cancellation, non-
renew~.l, termination, or ch~nge in the co~~erage, sr.ope or amount of any policy, and shall name
the t'ity as an additional insured. t:ach policy shall be evidenced by a certificate of insurance. A
;:ertificate ~f insurance ancl a copy t7f each policy shall be provided to the Director. The form
~nd ~ubstance of each cert~ficate and policy must be acceptable to the Director.
13,3 Waiver of Subrogation. Che parties release each other and their respective
Autharired Representatives from any claims for ciamage to any person, the Network, the
Facilitie5 or any or any other real or personal property of the City or the Corporation that are
caused by or result fi•om risks insured a~ainst under any insurance policies required or permitted
ta be carrizd by the parties under th~s Agreement~ The parties agree to cause the issuers of the
~nsurance policies requirec+ to be maintairled by them hereunder to include waivers of the rights
~~i recoverv and subrogatic~n.
13.4 Property Insurance. The ('ity shal: maintain a policy of commercial property
insurance ~~n the Facilities If the facilities, or part thereof, are damaged or destroyed, the City
will detennine whether repairs and testoration are practicable and feasible and will inform the
C~rporation in writing of its decisic>n within 120 days following the date of such damage ar
destt-uctio~~. If a decision ~s made t~~ repair and re~tore the Facilities, the Corporation shall
submit a rc:vised budget to the City tor approval based on the changed circumstances. A decision
bv the Citw~ to not repair ai?d restorr~ the Facilities shall constitute termination of this Agreement.
All proczeds of any property insurance paid for bv the City shall be the exclusive property of the
C;t~
ARTICLE 14
DEFAULT AND REMEDIES
14.1 Events of Default. The occurrence ~f any of the following events shall constitute
an "Event of Default" by tlle Corporation under this Agreement.
a) Failure of the C~rporation to comply with any term, condition or covenant of this
I:ease Agreement, and the continuation of that failure for a period of thirty (30) days after
tlle City's delivery of written notice thereef to the Corporation;
b) The filing of a petition t~r~ or against th~ Corporation (1) in any bankruptcy or other
insc~ivency proceeding; (2) ~eeking any relief under any state or federal debtor relief law;
or i 3) for the appointment of a 1 iq uidator ctr receiver for all or substantially all of the
C'orporation's property or fc~r the Corporation's interest in this Agreement; or
~ i The assi~nment or transfer of this Agreement or any of the Corporation's rights or
iilterest therein, whether by ~ oluntary assi~nment, involuntary transfer or operation of
lavt, without the prior written approval of ~.he City Council.
14.2 Remedies. On the oc~urrence of an Event of Default, the City may pursue any one
or more oi~ the following remedies, ~vith~ut any notice ar demand whatsoever, except as
atherwise indicated
a~ T'etminate this agreement by giving wr-itten notice of termination to the Corporation,
in ~vhich event the ~~orporation shall immediately surrender the Facilities to the City.
l~) Re-enter the Facilities ~~~thout terminating this Agreement, and, without being liable
fi~r any damages, N hether caused by the negligence of the City or otherwise, and do
whatever the Corpc~ration is obligated to do under this Agreement.
ARTICLE 15
MISCELI~ANEOL'~S PROVISIONS
15.1 Books. The C'orporation shall maintain books of account with respect to its
mana~ement and operatio~~ of the Network in accordance with generally accepted accounting
principles applicable to the Corporation.
l 5.2 Audit. The (_'orporation shal( 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 ('ity. The t~orporation shall provide written periodic reports as
requested hy the City Cour~cil, describing the Cor~~oration's performance of obligations under
th~s Agreement, inc(uding actual and projected expenses and revenues, and shall promptly
pro~~i~e such additional intormation as may be requested by the City Manager or City Council at
anti° tirne i'he reports shal ~ include ~~ section jointly developed by the Corporation and the City
Ylana~er describing usage ~y City ~epartments of services under the NSA, and the reductions in
~ost ar~d improvements in services 1-~sulting therefcom. The Corporation shall make
presentati~ns at Cit~r Council meetings as may be requested by the City Council.
15.4 Advisory Committees. The Corporation shall establish an advisory committee or
~ommittees composed of discrete Partner groups ta receive their input and recommendations
about the design and operation of the Community Portal, and may include other groups with a
partieular interest in the operation ot~the Community Portal.
15.~ Open Meetings and Records. The (~'orporation shall comply with the Texas Open
Meetings Act and Public lnformation Act_
15.6 Compliance with La~vs. "I'he Corporation shall comply with all applicable federal,
~tate, ~d local laws and re,~ulation~.
15.7 Discrimination Prohibited. The G~~rporation shall not discriminate against any
employee c~r applicant for employment in ~~iolatioli of federal, state or local law because of age,
race, creed. sex, color, disai~ility, or national origiri, and shall take affirmative action to ensure
that any employee or applic:ant for e~nployment is afforded equal employment opportunities
~~~ithout discriminatian bec~use of a~e, race, creed. sex, color or national origin. Such action
shall be taken with reference, but not be limited to, recruitment, employment, job assignment,
pramotian, upgrading, demotion, transfer, layoff or termination, rates of pay ar other forms of
compensation in selection for training or retrainin~, including apprenticeship and on the job
training. Subject to compliance with such obligations, and other obligations under this
Agreer~ent. the Corporation shall have pl~nary po~Ner with respect to the hiring and discharge of
its employees.
l 5.8 Minority Participation. The Corporation shall comply with applicable City
~n~nor~tti~, women and disacivantaged business enterprise policies in performing Corporation's
~blig~tions hereunder, which polic~ consists of ar obligation on the part of the Corporation to
~~se its reasonable efforts t~~ achieve a]evel of minority participation in the Corporation's
~mpfo~yment practices and in respec~~ to c~~ntractual relations for the provision of goods and
serv~ces for the :~;et~~ork.
15.9 Assignment. The Corporation shall not voluntarily assign or encumber its interest
,n this Agreement v~~ithout first obt~~inin~ the City s written consent.
15.10 Obligations of Corporation Not Obligations of City. The obligations of the
C'orpo~ation shall not be those of the Cit~~ unless expressly assumed by the City in writing
throug~ authorized action.
l 5.11 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 ~n this Agreeme~it are pursuant to a program to promote state and local economic
~eve~lopment and to stimulate business and commercial activity in the City established by the
~'rty Council pursuant to S~ction 3~0.0Ol, Texas Local Government Code.
15.12 Assumption of Powers and Duties. Pursuant to Texas Transportation Code
Section 431.104, the Gity C'ouncil may assume the powers and duties of the Corporation; upon
assu~Ytption the City shall assume the assets and liabilities of the Corporation.
l 5.13 Income of ('orporation. Pursuant to Texas Transportation Code Section 431.107,
the C'ity is entitled at any time to receive any income earned by the Corparation that is not
needed to pay the Corporation's expenses or obligations. The earnings of the Corporation may
ilot ~ienefit a private interest.
l 5.14 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
impro~ements. C1pon reasc~nable, «~ritten notice by the City, the Corporation shall temporarily or
permanently remove, relocate, chan~e, c~r alter the Facilities as required by the City. The
reyu7red work shall be at the Corporation's expense.
15.15 Notices. Any notice ur other communication required or permitted to be given
under this Agreement shali be in writing and deemed to have been duly given if and when
deli~ ered personally {with receipt acknowledged) or otherwise actually received by the intended
recipient, or three {31 days after ma~ling the same (by certified mail, return receipt requested)
with proper postage prepai~i, or ~vhen sent by a national commercial courier service (such as
Feder~l Express, L'PS, or DHL) for expedited delivery, to be confirmed in writing by such
~our~er, c~r when telecopie~3, telegraphed ~~r telexed to a party, at such party's address set forth
helow or at such other address as a partti may designate by notice given to the other in
~ccor~ance with the foregc~ing.
.~,. ~, ~ ,,~,~ . ~. . . w..
_ _ . ~_~__ _. _. _ ._ .. ~. R~. ~..._ _~ _ .....
~..,. _ _~,.. „~,~ ..e.~ .,,~ _.~. .~...,,
~I~o the Citv
Mr George K. Noe
City Manager
City of Corpus Christi
1201 Leopard
P.O. Box 9?7?
Corpus Christi, Texas 78469-9277
Phone: 361 `880-32?~
Fax: 361!8?6-3839
"l o the Lorporation
Chairman ofthe Board of Directors
c;'o Armando Chapa, Secretary
CC Digital C'ommunity Development Corporation
1201 Leopard
P.O. Box 9 ~ 7?
Corpus Chr~sti, Texas 78469-9277
Phone: 361 /880-82ti-310~
Notice shall, in all events, he effective upon receipt by the addressee except that notice by
facsimile electronic transmission shall, if received after 5:00 p.m. or any day which is not a
busin~ss day, be deemed received on the next following business day.
15.16 Amendments. This ,~~greement may be amended only by a written instrument
signed by bath parties. The City Manager is authorized to agree, on behalf of the City, to
administrative amendments that do ilot change the~ substance of this Agreement.
15.17 Title and Captions. All articles or section titles or captions in this Agreement are
for convenience of reference only. The~~ shall not be deemed to be part of this Agreement or to
in any way define, li~nit, extend, or describe the scope or intent of any provision of this
:Agreemen±. Except as specifically c,thenuise pro~ ided, reference to "Articles" and "Sections"
are to Arti~~les and Sections to this ~greement.
15.18 Pronouns and Plurals. ~~ henever the context may require, any pronoun used in
th~s .~greement shall include the corresponding masculine, feminine or neuter forms, and the
singul~r form of nouns, pr~~nouns and verbs shall Enclude the plural and vice versa.
15.19 Applicable Law. T}~~s Agreement shall be governed by, and construed and
enforced in accordance with, the la~ s oi~ Texas. The district courts of Nueces County, Texas
shall be th~ exclusive place~ of venu~= for any dispi~tes arising under or with respect to this
~greement.
15.20 No Third Party Beneficiaries. This a~-eement is entered into solely for the
henefit of the Citv and the Corporation, and is not intended and shall not be construed as a
cc~ntr~t f~>r the benefit of~ any third party~_ includi~ig, without limitation, any User, Contractor,
employee ~~r Partner
15.21 Severabilit~~. Each provision of this Agreement shall be considered severable and,
if. far any reason, any such provision or any part ~hereof, is determined to be invalid and contrary
to any existing or future applicable law, such invalidity shall not impair the operation of or affect
thase port~ons of this Agreement th~~~t ar~ valid, but this Agreement shall be construed and
enforced in all respects as ~f the in~ alid or unenforceable provision or part thereof had been
o~ni*ted.
15.22 Entire Agreement. I'his ,~greement contains the entire agreement of the parties
and su~ersedes 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
mc,dified c~r amended except as set torth in this A~reement. By mutual agreement of the City
and the Corporation, the previous ~greement for Services Between the City of Corpus Christi
and the C(' Digital C'ammunity Development Corporation is hereby terminated.
(EXECC'TION PAGE ~ND EXHIBIT A and EXHIBIT B FOLLO~
~= ~y'~~~ ~~ ~
Exeuuted ~n duplicate orig~nals on :.~his tl~e ~_~.~ dav of -~~~vu~ l. , 2007.
~(TY QF CORPUS CHR~(STI
,, _
f , ~~` `
. * .
, ~- ~~._v
Ge r Noe, City Manager Date
.ACtest:
--~~~~~ ...>
.Armando ~'hapa, Ci Secretary
Approved as to legal forn~ March ~, 20(~7
_ _ ,?~.~t.-i.-- ,~__t.t..~
Lisa Aguilar 1'
Assis~nt City Attorney
For Citv Attornev
~, ,~~- ~ ~~~
~ ~ . AUi"r;u~<<«
RY G~fNGII ~~" t~:t.J_!~_...~.
........._..~L~--....
SECRETAfTY
1~{~
C~` DIG17 AL COMMUNITY DEVELOPMENT CORPORATION
g~'~, 7 ~ ~-- _ --
Geor~K.. oe, President
Date ' ~ 'i 1r ~ ~
Exhibit A
DEPIC'"[~ION O~~ FACILITIES
20
EXHIBI'I~ B
ASSIGNED ('C~NTRAC'TS AND RIGHTS
Wi-F3 Facility License Agreement Between ~iEP - Texas Central Company and City of
Carpus Christi, appro~~ed by~ City Council April 25, 2006.
21