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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 2009-248 Ord. 028103 CDCDC~AgreementBiEtween (clean version) CityAndCorporation 03/31/09 ,2009.doc p~ V~r}q CCDCDC ("CDC") ~iVU~"1lCW 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 H:\LEG-DIR\Lisa\2009 CCDCDC\AgreementB~tween CityAndCorporation Draft March 31, 2009.doc 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 H:\LEG-DIR\Lisa\2008 CCDCDC\AgreementBdtween (clean version) CityAndCorporation Draft prepared January 15,2009.doc 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 H:\LEG-DIR\Lisa\2008 CCDCDC\.AgreementB6tween (clean version) CityAndCorporation Draft prepared January 15,2009.doc 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. H:\LEG-DIR\Lisa\2008 CCDCDC\AgreementB6tween (clean version) CityAndCorporation Draft prepared January 15, 2009.doc 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. H:\LEG-DIR\Lisa\2008 CCDCDC\AgreementB6tween (clean version) CityAndCorporation Draft prepared January 15, 2009.doc 7 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. H:\LEG-DIR\Lisa\2008 CCDCDC\?,greementB~tween (clean version) CityAndCorporation Draft prepared January 15, 2009.doc 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. H:\LEG-DIR\Lisa\2008 CCDCDC\AgreementBBtween (clean version) CityAndCorporation Draft prepared January 15, 2009.doc 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 H:\LEG-DIR\Lisa\2008 CCDCDC\AgreementBdtween (clean version) CityAndCorporation Draft prepared January 15,2009.doc 10 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 H:\LEG-DIR\Lisa\2008 CCDCDC\AgreementF3diween (clean version) CityAndCorporation Draft prepared January 15, 2009.doc 11 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. H:\LEG-DIR\Lisa\2008 CCDCDC\Agreementl~[ween (clean version) CityAndCorporation Draft prepared January 15, 2009.doc 12 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. H:\LEG-DIR\Lisa\2008 CCDCDC\?,greement13le2ween (clean version) CityAndCorporation Drafr prepared January 15, 2009.doc 13 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. H:\LEG-DIR\Lisa\2008 CCDCDC\Agreementl3le"iween (clean version) CityAndCorporation Draft prepared January 15, 2009.doc 14 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. H:\LEG-DIR\Lisa\2008 CCDCDC\?,greementBlelween (clean version) CityAndCorporation Draft prepared January 15, 2009.doc 15 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 H:\LEG-DIR\Lisa\2008 CCDCDC\AgreementEldtween (clean version) CityAndCorporation Draft prepared January 15, 2009.doc 16 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 H:\LEG-DIR\Lisa\2008 CCDCDC\Agreementl3(~ween (clean version) CityAndCorporation Draft prepared January 15, 2009.doc 17 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 H:\LEG-DIR\Lisa\2008 CCDCDC\Agreementffie7ween (clean version) CityAndCorporation Draft prepared January 15, 2009.doc 18 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 H:\LEG-DIR\Lisa\2008 CCDCDC\?,greementl3ldiween (clean version) CityAndCorporation Draft prepared January 15, 2009.doc 19 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) H:\LEG-DIR\Lisa\2008 CCDCDCWgreementffiQween (clean version) CityAndCorporation Draft prepazed January 15, 2009.doc 21 EXHIBIT A DEPICTION OF FACILITIES H:\LEG-DIR\Lisa\2008 CCDCDC\Agreement)$]lween (clean version) CityAndCorporation Draft prepared January 15, 2009.doc z2 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.. H:\LEG-DIR\Lisa\2008 CCDCDC\Agreement)3~dween (clean version) CityAndCorporation Draft prepared January 15, 2009.doc 20 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 H:\LEG-DIR\Lisa\2008 CCDCDC\Agreementffiween (clean version) CityAndCorporation Draft prepared January 15, 2009.doc 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.