6012ORDINANCE NO. 6012
AN UNCODIFIED ORDINANCE OF THE CITY OF ANAHEIM GRANTING A
FRANCHISE TO EARTHI.INK, INC., TO INSTALL, OPERATE AND
MAINTAIN A CITY-WIDE WIRELESS BROADBAND COMMUNICATIONS
NETWORK UPON CERTAIN CITY -OWNED FACILITIES LOCATED WITHIN
THE PUBLIC RIGHTS-OF-WAY IN THE CITY OF ANAHEIM; AND STATING
THE TERMS AND CONDITIONS UPON WHICH SAID FRANCHISE IS
GRANTED.
WHEREAS, Section 1400 -of Article XIV of the Charter of the City of Anaheim (the
"Charter") establishes procedures for the award of franchises by the City; provides that any person,
firm or corporation furnishing the City or its inhabitants with communication services and/or
requiring the use of the public streets or other public places for the operation of equipment for the
furnishing of such communication services (collectively the "communication services and facilities")
may be required by ordinance to have a franchise therefor; and further provides that the City Council
is empowered to grant such franchises and to establish additional procedures and terms and
conditions of such grants; and
WHEREAS, the City Council has heretofore adopted Section 1.02.010 requiring any
person, firm or corporation furnishing the City or its inhabitants with said communication services
and facilities to have a valid and existing franchise therefor; and
WHEREAS, the City Council determined by unanimous motion adopted on July 12,
2005 pursuant to Section 1400 of Article XIV of the Charter of the City of Anaheim to obtain a city-
wide wireless broadband communications network through grant of a franchise for such service and
provided the method of procedure for the grant of such a franchise; and
WHEREAS, no such city-wide wireless broadband communications network service
currently exists; and
WHEREAS, the City Council has heretofore solicited proposals from interested
persons, firms and corporations for the award of a franchise for the furnishing of said communication
services and facilities pursuant to its motion adopted on July 12, 2005; and
WHEREAS, pursuant to said request for proposals, the City of Anaheim has
heretofore received proposals for the award of a franchise for the furnishing of said communication
services and facilities and the exclusive use of certain City facilities therefor, and, following the
review and evaluation of said proposals, EarthLink, Inc., was selected as the qualified applicant; and
WHEREAS, the City Council of the City of Anaheim has heretofore reviewed said
Proposal, and has considered the information presented therein, and in the staff reports and
recommendations and other relevant information relating thereto; and
1
WHEREAS, the City Council has determined that no such city-wide wireless
broadband communications network service currently exists; and therefore no findings are required
pursuant to Anaheim Municipal Code Section 1.03.055, the City Council nonetheless finds that each
of the factors to be considered and weighed pursuant to Section 1.03.055 entered into the
determination to grant the Franchise to EarthLink, Inc. and those factors weighed in favor of granting
the Franchise to EarthLink, Inc.; and
WHEREAS, pursuant to the procedure set forth in Article XIV of the Charter, the
City Council did adopt its Resolution No. 2005-201 declaring its intention to grant a franchise to
EarthLink, Inc. (the "Franchisee"), to install, operate and maintain a city-wide wireless broadband
communications network and for the exclusive use of certain city -owned facilities located within the
public rights-of-way in the City of Anaheim (the "Franchise") upon those certain terms and
conditions as set forth in that certain proposed franchise agreement by and between the City and the
Franchisee, dated for convenience purposes only, as of December 6, 2005 (the "terms and
conditions"); and providing for publication of notice of public hearing, and providing for viewing
and copying of the proposed franchise agreement, and establishing the date, hour and place when and
where any persons having any interest therein or objection thereto could appear and be heard thereon;
and
WHEREAS, notice of said public hearing was published and otherwise given in the
manner required by Article XIV of the Charter and the proposed franchise agreement was made
available for viewing and copying as provided for by Resolution No. 2005-201; and
WHEREAS, on November 15, 2005, the City Council held the duly noticed public
hearing upon said proposed grant of the Franchise to the Franchisee at which public hearing the City
Council did hear testimony and consider evidence from persons having any interest in the proposed
Franchise, and did consider any and all objections thereto; and
WHEREAS, following the conclusion of said public hearing on November 15, 2005,
the City Council determined it to be in the public interest to amend the terms and conditions of the
proposed Franchise and, by a motion duly adopted by the City Council at such regular meeting of
the City Council on November 15, 2005, did terminate further proceedings relating to said terms and
conditions as theretofore set forth in Resolution No. 2005-201; and
WHEREAS, at a duly called and noticed special meeting of the City Council held on
November 15, 2005, and in accordance with the procedural requirements of Section 1403 of the City
Charter, the City Council did adopt its Resolution No. 2005-222 declaring its intention to grant the
Franchise to the Franchisee upon those certain amended terms and conditions (the "amended terms
and conditions") as set forth in that certain franchise agreement by and between the City and the
Franchisee, to be dated for convenience purposes only, as of December 20, 2005 (the "Franchise
Agreement"); and providing for publication of notice of public hearing, and providing for viewing
and copying of the Franchise Agreement, and establishing the date, hour and place when and where
any persons having any interest therein or objection thereto could appear and be heard thereon; and
2
WHEREAS, notice of said public hearing was published and otherwise given in the
manner required by Article XIV of the Charter, and the Franchise Agreement was made available
for viewing and copying as provided for by Resolution No. 2005-222; and
WHEREAS, on December 6, 2005, the City Council held the duly noticed public
hearing upon said proposed grant of the Franchise to the Franchisee at which public hearing the City
Council did hear testimony and consider evidence from persons having any interest in the proposed
Franchise, and did consider any and all objections thereto; and
WHEREAS, the City Council hereby overrules all objections to the proposed grant
of the Franchise to the Franchisee in accordance with the amended terms and conditions and subject
to the limitations hereinafter set forth.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF ANAHEIM DOES
ORDAIN AS FOLLOWS:
SECTION 1. GRANT OF FRANCHISE.
The City Council hereby grants a franchise to EarthLink, Inc., to install, operate, and
maintain a city-wide wireless broadband communications network and for the exclusive use of
certain city -owned facilities located within the public rights-of-way in the City of Anaheim in
accordance with the terms and conditions hereinafter set forth.
SECTION 2. TERMS AND CONDITIONS OF FRANCHISE.
The terms and conditions upon which said franchise is granted, and with which the
Franchisee is hereby expressly required to comply, are each of those certain terms, conditions,
limitations, representations and requirements as expressly set forth in that certain Franchise
Agreement by and between the City of Anaheim and EarthLink, Inc., dated for convenience purposes
only as of December 20, 2005, which Franchise Agreement is hereby incorporated herein by this
reference as if set forth in full. Said Franchise Agreement is, and shall at all times during the term
of said Franchise remain, on file in the Office of the City Clerk of the City of Anaheim, and said
Franchise Agreement shall be available for inspection and review in such Office of the City Clerk
during regular business hours.
SECTION 3. TERM OF FRANCHISE.
Upon timely acceptance of the Franchise, the term of said Franchise, including any
extensions thereof, shall be as expressly set forth in the Franchise Agreement, unless earlier
terminated as provided in said Franchise Agreement. In addition to any other means of acceptance
available to Franchisee, execution of the Franchise Agreement by the Franchisee and filing of an
executed counterpart original thereof with the City Clerk within ten days following the adoption of
this ordinance shall constitute acceptance of this Franchise within the meaning specified and required
3
by Section 1403 of the Anaheim City Charter. By acceptance of this Franchise, the Franchisee
agrees to be bound by each of those terms and provisions as required by Section 1405 of the City
Charter.
SECTION 4. SEVERABILITY.
The City Council of the City of Anaheim hereby declares that should any section,
paragraph, sentence, phrase or word of this ordinance be declared for any reason to be invalid or
unenforceable by the final judgment of any court of competent jurisdiction, it is the intent of the City
Council that it would have passed all other portions of this ordinance independent of the elimination
herefrom of any such portion as may be declared invalid.
SECTION 5. SAVINGS CLAUSE.
The adoption of this ordinance shall not in any manner affect the prosecution for
violations of ordinances which violations were committed prior to the effective date hereof, nor be
construed as a waiver of any license or penalty or the penal provisions applicable to any violation
thereof. The provisions of this ordinance, insofar as they are substantially the same as ordinance
provisions previously adopted by the City relating to the same subject matter, shall be construed as
restatements and continuations and not as new enactments.
THE FOREGOING ORDINANCE was introduced at a regular meeting of the City
Council of the City of Anaheim held on the 6th Day of December, 2005, and thereafter passed and
adopted at a regular meeting of said City Council held on the 20th Day of December, 2005, by the
following roll call vote:
AYES: Mayor Pringle, Council Members Sidhu, Hernandez, Galloway, Chavez
NOES: None
ABSENT: None
ABSTAIN: None
ATTE T:
A.0-1 az'-O-C�
C CLE OF CITY OF ANAHEIM
59667.7
F,
crrY nM
By
YOR OF THE ANAHEIM
AFFIDAVIT OF PUBLICATION
STATE OF CALIFORNIA, )
) ss.
County of Orange )
[ am a citizen of the United States and a resident
of the County aforesaid; I am over the age of
eighteen years, and not a party to or interested in
the above -entitled matter. I am the principal
clerk of the Anaheim Bulletin, a newspaper that
has been adjudged to be a newspaper of general
circulation by the Superior Court of the County
of Orange, State of California, on December 28,
191, Case No. A-21021 in and for the City of
Anaheim, County of Orange, State of California;
that the notice, of which the annexed is a true
printed copy, has been published in each regular
and entire issue of said newspaper and not in any
supplement thereof on the following dates, to
wit
December 29, 2005
"I certify (or declare) under the penalty of
penury under the laws of the State of California
that the foregoing is true and correct":
Executed at Santa Ana, Orange County,
California, on
Date: December 29, 2005
4
r
Signature
Anaheim Bulletin
625 N. Grand Ave.
Santa Ana, CA 92701
(714)796-2209
PROOF OF PUBLICATION
1<� (AZT � .2_,_N'Lt Q
This space is for the County Clerk's Filing Stamp
Proof of Publication
Paste Clipping of
Notice
SECURELY
In This Space
ORDINANCE NO. 6012
AN UNCI '�D ORDINANCE OF THE CITY OF ANAHEIM GRANTING A FRANCI -O EARTHUNK, INC., TO
INSTALL RATE AND MAINTAIN A CRY -WIDE WIRELESS BROADBAND C JNICATIONS NETWORK
UPON CL. JN CITY-ONMED FACIUM LOCATED WITHIN THE PUBLJC RIGHj*-OF-WAY IN THE CRY OF
A%AHEIM; AND STATING THE TERMS AND CONDITIONS UPON WHICH SAID FRANCHISE IS GRANTED.
LEROFE"erKatNaaervlonrsldtir>g maid b ebWb�NNtas�tlonr pro raid .apo�ttrog�wCihYptitprax� � b
a, corporation hx�
stg t 'i it o lfi lYrt' t with �d trsM0101011nrT�wtSMWdser �artd facleyes w Ifiys�a v+ad iw�e a there-
fore; &d
Ute Ctxsroti dllNmkisd gy aaurrkraota moUoat an Maty 12, uant b Sscgat 11go of
noluvork
thh Went aha o r such ` dasA � h� obvided Ifle a 11 1 of into for �sar� eWW
WHEREAS, no such dry-widewtelsn brcatbrrd nortarwrtiGYeMte rn11001 swvkm dwro* exists; lead
%wi Council M� ter on stMtArvi NwA
irwtlbri aWop ionthe2wiw UeW
July5;
and aid lha sookolive use. Cly
fa -
Utter forpm -to of Anghol. has hereld., received pj= for the
d, foro2 for on to add
� *"Wu a k*., was selected as the QtaMW
appillaart WW
Ute Cky Cotard of the Ctiy of Mallein tint hmNaftra raMevrad wld Proptxai end exfddersd Ua tit
form rt presented twain, artiQ 111116 awl and lapwmmendelfons and other rekaamt k .026 p Ufersto;
and
E*J
notltaa of Said wn pell**osd and od onvise overt in the manic required by Article )GV of
the tits proposed itanohNeh iitsnt vies made available for vWAV and ocpyktp as providedlw by Resokr
tion tib. 2tI05,20f; atld
WHEREAS, on November 15, 2005, Ute Caund held the cloy Cvpncgfipat��p;�o_ herinq upon am proposed grant of
the sons h tln b the In M wopo #W aiV a� �� ther d convicler evidence from
persons having any ittereu M the popi,�pd , ertd bpyy
* delarmined it to
be WHEREAS, the tort he % d Wald public an November iF�3 W 391=
k public Interest to armed the temra antatfigggiyooa�MMt� s� d ftta
ls
ithe axincill it ng !e add femN artd 1peeM1'fOUt MI for ReCowd solution Nov It : f std
tt..rt"Na6Aata dh"'trh >� n�la.► sof
the
200 and
W= on 8 2tti15 tits G Couta� held the tltYtr nopeoad It1bYc Wen add goPosed gram of
the ttwndY.rb tie ep ttttikit pt thep�y Gburtcti did Ns1ir etM twrrider evklertce from
persons hou" aryl t rr erid rbA confider err ane therob: and
in ao Mordmoe with the lie std conditions alld ot1. Ute�M her Fn to the Franchises M forth.
NOW, TTS, THE CITY COUNCIL OF THE CRY OF ANAHEIM DOLS ORDAIN AS FOLLOWS:
t?aan �lli a111troo
to EaMUrtk Ino. to M1t>11fI, maN�et a wkeiaes
std attolalvs rant d bceNd wd+ttUte public
nbg= in Ute tray d Alraho nt In aboordmoe vMtit Ute tonne and-46set font.
titNola-
N Penh
isi,
restaae-
THE on e W lana i t a eaut ado et s Cotandi of the Cly d Mdteim Irold
theithDtydDd�r DyfM�groUcsllvotscctfWeedCNy:CourtcNtroWon
A Horror PSN & Co and Members Sidhu. Herwtdsz, Galloway, Chavez
AA AN: fNoneM
gFiFyTY OF 11MAg1y�M
MAYTHEoCITY OF ANAHEIM