HomeMy WebLinkAboutC2009-248 - 3/31/2009 - ApprovedAGREEMENT FOR SERVICES
BETWEEN
THE CITY OF CORPUS CHRISTI
AND
THE CC DIGITAL COMMUNITY DEVELOPMENT CORPORATION
This 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"), anon-profit corporation incorporated under the
provisions of Subchapter D, Chapter 431, Texas Transportation Code.
Recitals
The purpose of this Agreement is to further implement the purposes City of Corpus
Christi Citywide Integrated Wi-Fi Network described in the City's Resolution No. 026635,
passed on January 31, 2006 (the "Resolution"), which authorized creation of the Corporation.
The City has invested more than $7 million in infrastructure for the Network and
signifi~nt additional resources supporting development of the Network
The City wishes to utilize the Corporation to focus on implementation of this 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 1, 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 by such party.
1.2 City Council -the City Council of the City.
1.21 City Purposes -all of the public purposes recited in Section 1 of the Resolution.
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 AVL
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Network Services, personal application portal services, text and video news providers, video
conferencing providers, online productivity solutions, radio frequency identification, and mobile
location tracking.
1.5 Community Partner - a Partner, such as a chanty 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
services to support the Corporation's activities under this Agreement, including but not limited to
operation, maintenance, upgrades, expansions, management, portal applications, and other goods
or services.
1.7 Educational Partner - a Partner 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 Facilities -all components of the Network, wireless or wired, equipment or
software, necessary to operation of the Network, including but not limited to:
a) Wireless Network; Wired Network; portal; fiber, other cable and WiMax backbone;
Network Operating Center; Network hardware and equipment; management equipment;
routing equipment; switches; Network management software; all network addressing and
routing (VLANS, IP route tables, and OSS);
b) 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 infra-City enterprise network, including components and services used in common
to deliver infra-City communications (for example, cellular telephone service) and
including connections (wire, fiber, or RF) from the enterprise network to particular City
departments, but does not include devices used by City departments, including but not
limited to, switching equipment, personal computers, telephones, cellular telephones,
printers, faxes, scanners, unique non-enterprise servers, department software, inside plant
cabling, traffic signals, and mobile computers;
e) office space sufficient to house equipment and personnel necessary to carry out the
Corporation's functions under this Agreement; 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;
~ the fiber, equipment, and other apparatus depicted in Exhibit A; and
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g) all other property, real or personal, comprising the Network or supporting its
operation, as the Network presently exists or may be expanded or upgraded, which may
include in the future wireless equipment and software.
1.9 Governmental Partner - a Partner that is the Federal Govemment, the State of Texas
or a governmental subdivision of the State with boundaries inside the City limits of the City that
uses the Network to carry out the purposes for which it was created.
1.10 Internet- the global information system that: 1) is logically linked together by a
globally unique address space based on the Internet Protocol (IP) or its subsequent
extensions/follow-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
on the communications and related infrastructure described herein.
1.11 ISP -Internet Service Provider.
1.112 Local Business - A local business as defined by the Corporation.
1.12 Maintain or Maintenance - to keep up, preserve, and support the condition and
existence of.
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 fiber 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
Network in a period of time.
1.15 Network Capital Costs -all costs of constructing, expanding and upgrading the
Network including payment or reimbursement for labor, services, material and equipment and
any other costs incurred in connection with the acquisition, construction, improvement or
installation of the improvements and facilities constituting the Network; all incidental costs
incurred in connection therewith including the cost of architectural, legal, engineering, appraisal,
accounting, 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,
including all debt service and fees for financial, legal accounting, and other professional
services; and all other costs, 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 Network in
good repair and operating condition, including the cost of salaries, wages, benefits and other
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compensation for Corporation employees; contractual services for any aspect of the
administration, management and operation and maintenance of the Network; fees and expenses
for 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 renewals occurring in the usual course of business, costs of utility services;
advertising and public information about the Network; and all other costs and expenses of
managing, operating, maintaining and repairing the Network arising in the routine and normal
course 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, information, education, and other services to Users in accordance with public purposes
of the Network. Partner includes Commercial Partners, Local Government Partners, Community
Partners, Educational Partners, Governmental Partners, subgroups of those Partners, and other
discrete groups that may be determined by the Corporation.
1.19 Person - an individual, a partnership (limited or general), a limited liability
company, a corporation, 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 User - a person, whether business, 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 City and its Partners.
1.21 Purposes of the Network -all of the public purposes recited in Section 1 of the Resolution.
1.22 VoIP -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 supercedes the previous agreement between the parties. This Agreement
shall be effective upon the last date of execution by a party hereto, and shall continue in effect
through July 31, 2013.
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
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accomplish the City Purposes. The City hereby leases to the Corporation all the City's personal
property comprising the Facilities, and hereby grants a license to the Corporation to use all the
City's real property and interests in real property comprising the Facilities The City Manager is
authorized to annually designate specific office, building, and 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
contracts and rights held by the City necessary to carry out its obligations under this Agreement.
The City Manager is authorized to add to Exhibit B any omitted document that is subsequently
identified.
3.3 Limit on Grants. The grants in this Article are limited by the City's interest in any
particulaz right or property, and do not purport to grant any greater interest.
ARTICLE 3.1
GRANT RELATED TO SPECIFIC CITY FACILITIES
3.1.1 Definitions.
"Antennae" means antennae, mounting and attachment hardware, and masts,
communications, networking, Internet, computer, and radio equipment and certain
personal property of Corporation, including, without limitation, equipment panels,
cabling, cabinets, emergency power systems and other related personal property that aze
components of a broadband wireless system.
"Antenna Site" means the building rooftops, radio towers, and data center or
collocation facility locations listed herein: 1) Radio tower located next to Savage Lane
Pump Station, 302 N. Navigation Blvd; 2) Radio tower located next to Fleet Maintenance
Building 3B, 5352 Ayers; 3) Radio Tower located next to Holly Road Pump Station,
4800 Holly Road; 4) Radio Tower located next to Flour Bluff Water Tower, 2029
Division Road; and 5) Radio tower located next to O. N. Stevens Water Treatment Plant,
13101 Leopazd Street.
"City Poles" means those city-owned poles or structures in the right-of--way used
to maintain traffic lights and associated hardware.
"Equipment" means radios, antennae, gateways, wires, cables, fibers, filters,
amplifiers and other equipment, and switching, processing, monitoring, transmission and
distribution components of a broadband wireless system, and upgrades and new and
improved technology and devices related thereto.
"Fiber" means the fiber optic transmission system depicted in Exhibit A
3.1.2 License to Use City Traffic Lights and City Poles. The City hereby grants to
the Corporation a license to place Equipment on City Poles. To the extent compatible with
public safety, the City Engineer will prepare standadd specifications allowing the Corporation to
place the Equipment in standard locations with standard methods without further approval. For
non-standard installations on City Poles, the City Engineer will prepare a procedure for
expeditious review and decision.
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3.1.3 License to Place Antennae on Antenna Sites. The City hereby grants to the
Corporation a license to place Antennae on Antenna Sites subject to appropriate location and
attachment requirements as determined by the City Manager or designee.
3.1.4 License to Use City Fiber. The City hereby grants to the Corporation the
continuing right to connect to, transmit through and use the fiber optic transmission system
depicted in Exhibit A for backhaul purposes
ARTICLE 4
PUBLIC 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 administering the Network, the
Corporation shall give first priority to the delivery of police, fire, emergency medical, emergency
management, and other services that directly impact public health and safety, including
suspension of al] other uses of part or all of the Network until the public safety is restored, if
deemed necessary by the City.
4.3 Procedures. The Corporation shall develop appropriate operating procedures for
communication and implementation of priorities.
4.4 Third Party Operation. Should the Corporation enter into a third party agreement for
Operation of the Network, the Agreement shall require that the priorities in this Article 4 be
followed.
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 Administration of Network Services Agreement. The Corporation shall Operate
and Maintain the Network.
5.3 Network Upgrade and Expansion. The Corporation shall continuously upgrade and
expand the Facilities to provide service throughout the City. It will continuously evaluate, plan,
and keep the City informed of the future needs of the Network, including new service offerings,
and shall manage the implementation of upgrades, expansions, and new services. The
Corporation shall update Exhibit A to reflect all modifications.
5.4 Free Access at public hot spots. The Corporation shall assure that access to the Network is
free to all customers at the public hot spots.
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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, if financially feasible, establish a program to assist economically
disadvantaged citizens to purchase equipment necessary to access the Network, and otherwise
assist citizens with training and other services to promote digital equity.
5.6 Information about Network. The Corporation shall inform City residents of the
Network and services available to them on the Network. The Corporation shall develop and
implement a marketing plan, including advertising and other public relations activities. The
Corporation shall coordinate with Partners, advertisers, and others to promote full access to the
beneficial uses of the Network.
5.7 Training and Assistance. The Corporation may establish training and technical
assistance that will enable all residents to utilize the Network, the Community Portal, and the
Services available on thereon, subject to funding, and may charge reasonable fees to recover the
cost thereof.
5.8 Resource Ceuter. 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 azise between the City and
Partners and between Partners.
5.11 Security. The Corporation shall institute reasonable safeguards for the security of
the Network, except for public hot spots which are not secure..
5.12 Privacy. The Corporation shall institute appropriate mechanisms to protect privacy
and confidentiality on the Network in accordance with law.
5.13 Small and Local Business Promotion. The Corporation shall explore how the
Network 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 programs for
that purpose.
5.14 City Purposes. The Corporation shall perform all the duties and responsibilities set
forth in this Agreement in accordance with the City Purposes and in accordance with any
additional purposes or directives that may be adopted by the City Council.
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5.15 Improvement to City Efficiency and Services. The Corporation shall use the
expertise gained in its operation of the Network to continuously seek to identify technologies
and applications that will enable City departments to provide improved services at reduced cost,
shall call these to the attention of City management, and shall assist City management in
implementing them. City management and the Corporation will work cooperatively and
proactively 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
convenient to the performance of the duties and responsibilities set forth in this Agreement.
Without limitation on the foregoing exercise of powers, certain specific powers are specified
below.
6.2 Contracting. The Corporation shall enter into contracts for design, engineering,
construction, procurement, financial, legal, and all other goods and services necessary for its
activities under this Agreement.
6.3 Funds and Property. The Corporation may acquire and receive funds and property
of any kind for the conduct of its activities under this Agreement, including but not limited to,
compensation from Partners, advertising revenues, contributions from the City, purchase,
conveyance, lease, gift, grant, bequest, legacy, devise, or otherwise, and may grant, convey,
transfer, lease, sublease, license, sublicense, mortgage, encumber and dispose of funds, property,
and income there from in furtherance of the Purposes of the Network. The Corporation shall
serve as a receiving, holding and disbursing 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 its day-to-day activities 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 carry out its Operational
and Maintenance duties and responsibilities through service contracts with private Persons and
with the City. The Corporation may employ administrative staff, but will work to keep any
administrative staff to a minimum. For purposes of this Section 6.4, the term "administrative
staff' is limited to general, overall administration and coordination of the Corporation's
activities; administrative support to the Corporation's Board of Directors, oversight of Contracts
with Partners and Contractors, sales and promotion of Network business, and clerical assistance
related thereto.
6.5 Manner and Means. The Corporation shall be solely responsible, in its discretion,
for the manner and means by which it carries out its duties and obligations under this Agreement.
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6.6 Contracts with Other Cities. For adequate consideration, the Corporation may
contract 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
intellectual 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 owned by the City,
and may not create, assume or suffer to exist any mortgage, pledge, lien, charge, security
interest, or other encumbrance against the Facilities or the Network, without the written consent
of the 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 Corporation to negotiate and enter into license contracts for use of the
Network by Commercial Partners, Local Business Partners, Community Partners, Educational
Partners, and Governmental Partners, and other Partners that may be determined by the
Corporation, where such contracts will advance the City Purposes. 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 would 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: 1)
substantially similar terms and conditions for all Partners similarly situated; 2) terms and
conditions for Partners later joining the Network that place them in as equal a position as
possible with those joining earlier; 3) a five year term, unless the Partner contributes assets that
justify a longer term; 4) compliance with all rules, regulations, and policies governing the
Network; 5) indemnity of the City and the Corporation from responsibility for any action of
Partners; 6) appropriate insurance for Partners naming the City and the Corporation as additional
insureds; 7) appropriate performance security; 8) disclaimer of any liability of the City or the
Corporation for any actions of Partners or disputes between Partners and their constituents or
customers; 9) acknowledgement by the Partner that the Corporation and the City shall have no
responsibility for content provided by the Partner or its users; 10) for assignment to the City; 11)
no City liability for acts and omissions of the Corporation; 12) termination of contract as only
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remedy for a judicial determination or new legislation that City or Corporation lacks authority
with respect to any aspect of the Network; 13) reference to the priorities in Article 4; 14)
acknowledgement of open meetings and records laws; 15) provisions to protect proprietary
information of Partners; and, 16) other provisions determined appropriate by the Corporation.
7.3 Commercial Partners. Contracts with Commercial Partners shall provide for fair
compensation to the public for value received through use of the Network bandwidth, which may
include advancement of local economic development.
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 by a commitment by each Partner to deliver services that carry out public purposes of
the City.
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 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 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.
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
sepazate, 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 Corporation's administration of the
Network.
ARTICLE 8
PROCUREMENT CONTRACTS
8.1 Authorization for Procurement Contracts. The Corporation is authorized to
contract with Contractors for the procurement of all goods, services, and property necessary or
convenient to operate, maintain, expand, and upgrade the Network, including but not limited to
construction, installation, equipment, facilities, professional services, leases, licenses, fiber, and
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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
of monies derived from or Facilities financed through obligations, the interest on which is
intended to be excludable from 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.
8.3 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 of the City
Council by resolution. Provided, however, the Corporation may enter into contracts not
exceeding five years without such approval for equipment maintenance, installment leases or
purchases, or similar contracts deemed by the Corporation to conform to good business practices.
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 1, 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
including the actual staff costs of the City, and reimbursement shall be implemented as part of
the Corporation's annual budget submission under Article 11. No reimbursement for cost of
City staff 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.
After considering any request by the Corporation Board, the City Council's determination of the
amount of the invoice shall be final.
ARTICLE 10
FUNDING OF NETWORK AND CORPORATION ACTIVITIES
10.1 City Funding and Support. Each year, through the term of this Agreement, the
City will pay the Corporation in consideration of the Corporation's obligations as provided in
this Agreement, funds as provided in the City's annual operating budget. After the first fiscal
year, the City may continue such support on a declining basis, as it deems necessary. If revenues
are available, these additional contributions will be reimbursed to the City under amutually-
agreed repayment schedule. The City's contributions will be reflected each year in the
Corporation's budget. After the first five years, the City and the Corporation will renegotiate
support that may be provided by the City.
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10.2 Funding Sources. It is expected that the Network will be supported by payments
from the City as described in Section 10.1, payments from Partners for their usage of the
Network, 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.
The Corporation is authorized to seek funding from other sources such as government or
foundation 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 this Agreement.
10.3 Negotiation of Payments. The Corporation shall negotiate payments from Local
Government Partners, Educational Partners, Government Partners, Community Partners, and
other Partners for use of the Network that are calculated to reimburse the Corporation for
Network Capital Costs and Network Operation and Maintenance Costs, and shall negotiate
payments from Commercial Partners that reflect market value of their use of the Network.
Payments shall be without unreasonable discrimination 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.
The Corporation will endeavor to fund its obligations from revenues generated through operation
of the Network. However, if necessary 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 of the 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 Corporation
revenues will be sufficient 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 Agreement 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 to the City Manager,
who shall forward it to the City Council for inclusion in the City operating budget. City prepares
the capital budget as needed for Network improvements.
11.3 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.
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11.4 Approval by City. The Corporation's proposed operating budget will be reviewed
and approved or modified by the City Council during the City's regular budget process. The
budget, as approved or modified by the City Council shall be final.
11.5 Operations within Budget. The Corporation shall operate and manage the
Network within the overall limits of the approved budget.
ARTICLE 12
INDEMNIFICATION
12.1 Definitions for Article. The following terms, as used in this Article 12, shall have
the following meanings:
a) "City" includes the officers, employees, and agents of the City, as well as the City.
b) "Claims" means all damages, losses, injuries, liabilities, penalties, disbursements,
costs, chazges, assessments, and expenses (including attorneys' fees, experts' fees and
expenses incurred in 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) "Defend" 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 for a Claim actually incurred.
e) "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 FAULT OR STRICT LIABILITY IS IMPOSED OR
SOUGHT TO BE IMPOSED ON THE CITY.
12.3 WAIVER BY CORPORATION. TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, THE CORPORATION WAIVES ALL CLAIMS
THAT IT MAY 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
NEGLIGENCE OF THE CITY, WHETHER OR NOT LIABILITY WITHOUT FAULT
OR STRICT LIABILITY IS IMPOSED OR SOUGHT TO BE IMPOSED ON THE CITY.
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12.4 General Scope of Indemnities and Waivers. The Indemnities, Waivers, and
obligations 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 Expiration 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;
b) Commercial General Liability. Commercial general liability insurance with a limit of
at least $1,000,000 Combined 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) 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
written on an occurrence basis;
e) Professional Liability. At least $1,000,000 per claim and $1,000,000 aggregate;
f) Crime and Fidelity Coverage. At least $500,000 per occurrence of coverage for 1)
employee dishonesty, 2) forgery or alteration, 3) theft, disappearance and destruction, 4)
robbery and safe 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 form 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.
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
be issued as a primary policy, 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
certificate of insurance and a copy of each policy shall be provided to the Director. The form
and substance of each certificate and policy must be acceptable to the Director.
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13.3 Waiver of Subrogation. The parties release each other and their respective
Authorized 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
insurance policies required to be maintained by them hereunder to include waivers of the rights
of recovery and subrogation.
13.4 Property Insurance. The City shall maintain a policy of commercial property
insurance on the Facilities. If the facilities, or part thereof, are damaged or destroyed, the City
will determine whether repairs and restoration are practicable and feasible and will inform the
Corporation in writing of its decision within 120 days following the date of such damage or
destruction. If a decision is 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
by the City to not repair and restore the Facilities shall constitute termination of this Agreement.
All proceeds of any property insurance paid for by the City shall be the exclusive property of the
City.
ARTICLE 14
DEFAULT AND REMEDIES
14.1 Eveuts of Default. The occurrence of any of the following events shall constitute
an "Event of Default" by the Corporation under this Agreement.
a) Failure of the Corporation to comply with any term, condition or covenant of this
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 relief law;
or (3) for the appointment 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 prior written approval of the City Council.
14.2 Remedies. On the occurrence of an Event of Default, the City may pursue any one
or more of the following remedies, without any notice or demand whatsoever, except as
otherwise indicated:
a) Terminate this Agreement by giving written notice of termination to the Corporation,
in which event the Corporation shall immediately surrender the Facilities to the City.
b) Re-enter the Facilities without terminating this Agreement, and, without being liable
for 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 IS
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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 information 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
Manager 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 Advisory Committees. The Corporation may establish an advisory committee or
committees 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 operation of the Network.
15.5 Open Meetings and Records. The Corporation shall comply with the Texas Open
Meetings Act and Public Information Act.
15.6 Compliance with Laws. The Corporation shall comply with all applicable federal,
state, 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 for employment is afforded equal employment opportunities
without 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,
promotion, upgrading, demotion, transfer, layoff or termination, rates of pay or other forms of
compensation in selection for training or retraining, including apprenticeship and on the job
training. Subject to compliance with such obligations, and other obligations under this
Agreement, the Corporation shall have plenary power with respect to the hiring and discharge of
its employees.
15.8 Minority Participation. The Corporation shall comply with applicable City
minority, women 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 to achieve a level of minority participation in the Corporation's
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employment practices and in respect to contractual relations for the provision of goods and
services for the Network.
15.9 Assignment. The Corporation shall not voluntarily assign or encumber its interest
in this Agreement without first obtaining 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 in 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 380.001, Texas Local Government Code.
15.12 Assumption of Powers and Duties. Pursuant to Texas Transportation Code
Section 431.104, 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 time 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
Federal Express, UPS, or DHL) for expedited delivery, to be confirmed in writing by such
courier, or when telecopied, telegraphed or telexed to a party, at such party's address set forth
below or at such other address as a party may designate by notice given to the other in
accordance with the foregoing.
To the City:
City Manager
City of Corpus Christi
1201 Leopard
P.O. Box 9277
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Corpus Christi, Texas 78469-9277
Phone: 361/880-3220
Fax: 361/826-3839
To the Corporation
Chairman of the Boazd of Directors
c/o Armando Chapa, Secretary
CC Digital Community Development Corporation
1201 Leopazd
P.O. Box 9277
Corpus Christi, Texas 78469-9277
Phone: 361/880-826-3105
Notice shall, in all events, be 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
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
administrative 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
for convenience 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
Agreement. 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
singulaz 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 of Nueces County, Texas
shall be the exclusive place of venue for any disputes arising under or with respect to this
Agreement.
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 existing 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
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enforced in all respects as if the invalid or unenforceable provision or part thereof had been
omitted.
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 in this Agreement. By mutual agreement of the City
and the Corporation, the previous Agreement for Services Between the City of Corpus Christi
and the CC Digital Community Development Corporation is hereby terminated.
(Execution page and Exhibit A and Exhibit B follow)
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EXHIBIT A
DEPICTION OF FACILITIES
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EXHIBIT B
ASSIGNED CONTRACTS AND RIGHTS
Wi-Fi Facility License Agreement Between AEP -Texas Central Company and City of Corpus
Christi, approved by City Council Apri125, 2006, as amended by Amendment Number 1
executed on May 29, 2008..
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Executed in duplicate originals on this the
day of , 2009.
CITY OF CORPUS CHRISTI
i
By: "/ Iti-
`Ang scobar, City Manager
Date: 8/,g/p9
Attest:
Armando Chapa, City Secreatry
Approved as to legal form: q'l ~' 'D y
By:
Lisa Aguilar, Ass' t City Attorney
for the City Atto y
Bl COUNCIL
SECRETARY
CC DIGITAL COMMUNITY DEVELOPMENT CORPORATION
By: ~X-~~~~~~~2-~ Date:
Sylvia tm re, Chairperson
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NOTICE
This agreement contains a Map of the facilities.
Due to the size of the map, we were unable to include the Map in the electronic
version of the ordinance. However, the map is attached to the original
contract.