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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