Loading...
HomeMy WebLinkAbout96-066 -Grant a Franchise to Metricom, Inc,i19 REL:6~8/96 RESOLUTION NO. 96-066 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA ANA DECLARING ITS INTENTION TO GRANT A FRANCHISE TO METRICOM, INC., TO INSTALL AND OPERATE A WIRELESS COMMUNICATION RADIO NETWORK IN THE PUBLIC RIGHT-OF-WAY AND SETTING A PUBLIC HEARING THEREON NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SANTA ANA AS FOLLOWS: 1. Pursuant to and in accordance with section 1303 of the Charter of the City of Santa Ana, this Council does hereby declare its intention to grant a franchise to Metricom, Inc., to install and operate a wireless communication radio network in the public right-of-way. The terms and conditions upon which said franchise is proposed to be granted are set forth in Exhibit l, attached hereto and incorporated herein. 2. Notice is hereby given that at the hour of 6:00 P.M. or as soon thereafter as the matter can be heard on August 5, 1996 in the Council Chambers of the City of Santa Aha, 20 Civic Center Plaza, Santa Ana, California, a public hearing will be held by this Council at which time any and all persons interested in or objecting to the proposed franchise grant hereinabove described may appear and be heard. 3. The Clerk of the Council is hereby directed to cause this Resolution to be published within fifteen days after its passage, in a newspaper of general circulation in the City. Exhibit 1 need not be published but shall be made available at no cost to any interested person in the Office of the Clerk of the Council, located on the 8th floor, City Hall, 20 Civic Center Plaza, in the City of Santa Ana, or by mail upon request to the Clerk of the Council. ADOPTED this 1st ATTEST: ~e~k Cou '~/' COUNCILMEMBERS: Pulido Aye Richardson Aye Espinoza Aye Lutz Aye McGuigan Ave Mills Ay~ Moreno Ay~ day of July , 1996. '/~. 'guel A. Pulido fi/Mayor APPROVED AS TO FORM: Richard E. Lay / Acting City Attorney CERTIFICATE OF ORIGINALITY & PUBLICATION State of California County of Orange I, IANICE C. GUY, Clerk of the Council, do hereby certify the attached Resolution ~ ~'0~ to be the original resolution adopted by the City Council of the City of Santa Ana on Date: 7///~,/%;~_. C erk of the City of Santa Ana '- REL: 5/22/96 EXHIBIT 1 PROPOSED FRANCHISE GRANT TO METRICOM, INC. 1. Definitions. 1.1 "Agency" means any governmental agency or quasi- governmental agency other than the city, including the FCC and the PUC. 1.2 "PUC" means the California Public Utilities Commission. 1.3 "City" means the City of Santa Ana. 1.4 "Effective Date" means the date this Franchise is accepted by first stated above. 1.5 "FCC" means the Federal Communications Commission. "Fee" means any assessment, license, charge, fee, imposition, tax (but excluding any utility users' tax), or levy lawfully imposed by any governmental body. 1.7 "Franchise" means the terms under which Metricom is permitted to attach, install, operate, maintain, remove, reattach, reinstall, relocate, and replace the Radios in the Public Right of Way as provided below. · .8 "Gross Revenues" means the gross dollar amount accrued on Metricom's books for Services provided to its customers residing or, in the case of businesses, whose principal executive office is located in, the City, excluding (i) the franchise fee required by Section 4.3 below, (ii) local, state, or federal taxes collected by Metricom that have been billed to the subscriber and separately stated on such bill, and (iii) revenue uncollectible from subscribers (i.e., bad debts) located in the City that were previously included in Gross Revenues. 1.9 "Laws" means any and all judicial decisions, statutes, constitutions, ordinances, resolutions, regulations, rules, tariffs, administrative orders, certificates, orders, or other requirements of the City or other Agency having joint or several jurisdiction over the parties to this Franchise, in effect either at the time of execution of this Franchise or at any time during the presence of Radios in the Public Right-of-Way. ~.[0 "Metricom" means Metricom, Inc., a corporation duly organized and existing under the laws of the State of Delaware, and its lawful successors, assigns, and transferees. 1.11 "Person" means an individual, a corporation, a limited liability company, a general or limited partnership, a sole proprietorship, a joint venture, a business trust, and any other form of business association. 1.12 "Provision" means any agreement, clause, condition, covenant, qualification, restriction, reservation, term, or other stipulation in this Franchise that defines or otherwise controls, establishes, or limits the performance required or permitted by any party to this Franchise. AH Provisions, whether covenants or conditions, shall be deemed to be both covenants and conditions. 1.13 "Public Right-of-Way" means in, upon, above, along, across, under, and over the public streets, roads, lanes, courts, ways, alleys, boulevards, and places, including, without limitation, all public utility easements and public service easements, as the same now or may thereafter exist that are under the jurisdiction of the City. This term shall not include any property owned by any Person or Agency other than the City except as provided by applicable Laws or pursuant to an agreement between the City and any such Person or Agency. 1.14 "Radio Month" means a calendar month during which a Radio occupies space on a pole, even if such occupancy is less than the entire month. 1.15 "Radios" means that radio equipment to be installed and operated by Metricom hereunder as described on Exhibit A attached hereto or any radio equipment which substantially conforms to such Radios. 1.16 "Ricochet" means Ricochet MicroCellular Network, a digital wireless communications microcellular radio network owned and operated by Metricom. 1.17 "Services" means the wireless communications services provided through Ricochet by Metricom. 2 · TERM. Z.1 This Franchise shall be for a term of three (3) years, unless it is earlier terminated by the City in accordance with the provisions herein, and shall commence on the "Effective Date". This Franchise shall automatically be renewed for four (4) successive (3) three-year terms by Metricom on the same terms and conditions as set forth herein unless Metricom notifies City of its intention not to renew prior to commencement of a succeeding renewal term. 2 SCOPE OF FRANCHISE. 3.1 Any and all rights expressl~ ..anted to Metricom under this Franchise, which shall be exercised at Metricom's sole cost and expense, shall be subject to the prior and continuing right of the City under applicable Laws to use any and all parts of the Public Right-of-Way only, exclusively or concurrently, with any other Person or Persons, and further shall be subject to all deeds, easements, dedications, conditions, covenants, restrictions, encumbrances and claims of title which may affect the Public Right- of-Way. Nothing in this Franchise shall be deemed to grant, convey, create, or vest a perpetual real property interest in land in Metrioom, including any fee or leasehold interest, easement, or any franchise rights. 3.2 The City hereby authorizes and permits Metricom to attach, install, operate, maintain, remove, reattach, reinstall, relocate, and replace Radios in or on City street light poles, lighting fixtures, and electroliers, within the Public Right-of-Way for the purposes of providing Services to Persons located within or without the limits of the City. Any work performed pursuant to the rights granted under this Franchise may, at the City's option, be subject to the prior review and approval of the City. During the term of this Franchise, the location of each Radio installed by Metricom or its designee shall be disclosed, in writing, to the City by Metricom within ten (10) days after its installation, removal, or relocation. 3.3 The City hereby authorizes and permits Metricom to attach, install, operate, maintain, remove, reattach, reinstall, relocate, and replace such number of Radios in or on poles or other structures owned by public utility companies or other property owners located within the Public Right-of-Way as may be permitted by the public utility company or property owner, as the case may be. Metricom shall furnish to the city documentation of said permission from the individual utility/property owner responsible. 3.4 Except as permitted by applicable Laws or this Franchise, in the performance and exercise of its rights and obligations under this Franchise, Metricom shall not interfere in any manner with the existence and operation of any and all public and private rights- of-way, sanitary sewers, water mains, storm drains, gas mains, poles, aerial and underground electric and telephone wires, electroliers, cable television, and other telecommunications, utility, and municipal property without the express written approval of the owner or owners of the affected property or properties. 3.$ Metricom shall comply with all applicable Laws in the exercise and performance of its rights and obligations under this Franchise. If required by applicable Laws, Metricom shall obtain the approval of the Radios subject to this Franchise, or any 3 modifications or changes thereto, from any applicable governmental bodies, and secure any required assessment of the impact that the Radios subject to this Franchise may have upon the environment. $.6 If the size of the Radios change in a material way, then Metricom shall notify the City, in writing, as soon as practicable. Such notice shall be served at least one (1) month prior to the effective date of any material change in the size of the Radios. 3.7 The City further reserves the right to modify the service voltage delivered to or at any street light pole or utility pole on which a Radio may be located. Metricom shall replace or modify any Radio that will be affected by such voltage modifications within ten (10) days of receiving notice of voltage modifications. In the 6¥~nt that M~tricom fails to replace or modify any Radio within the ten day notice period before the voltage modification, the City may disconnect any such Radio until Metricom performs and completes the necessary work and advises the City accordingly. 4. FEES AND TAXES 4.~ Metricom acknowledges and agrees that the City may require users of revenue producing services such as the Services to pay a utility users' tax ("Utility Tax") to the City pursuant to City's Municipal Code. If the Services are subject to the Utility Tax, Metricom agrees to collect the tax from Service users and remit such tax to the City in accordance with city's Municipal Code. 4.Z Metricom shall be solely responsible for the payment of all lawful Fees and utility charges in connection with the exercise of Metricom's right, title, and interest in, and the attachment, installation, operation, and maintenance of Radios, and the rendering of Services under this Franchise. 4.3 As compensation for this Franchise, Metricom shall pay to the City, on a quarterly basis, an amount equal to @ percent (3%) of Metricom's Gross Revenues which amount will be collected from subscribers of the Services and remitted to City as provided herein. The compensation required by this section shall be due on or before the 45th day after the end of each calendar quarter, or fraction thereof. Within 45 days after the termination of this Franchise, compensation shall be paid for the period elapsing since the end of the last calendar quarter for which compensation has been paid. Metricom shall @sh to the City with each payment of compensation required by this section a statement, executed by an authorized officer of Metricom or his or her designee, showing the amount of Gross Revenues for the period covered by the payment. If Metricom discovers that it has failed to pay the entire or correct amount of compensation due, the city shall be paid by Metricom wi@ fifteen (15) days of discovery of the error or determination of the i25 correct amount. Any overpaym~ ~J to the City through error or otherwise shall be offset against the next payment due from Metricom- Acceptance by the City of any payment due under this section shall not be deemed to be a waiver by the City of any breach of this Franchise occurring prior thereto, nor shall the acceptance by the City of any such payments preclude the city from later establishing that a Larger amount was actually due, or from collecting any balance due to the City. 4.4 Metricom shall keep accurate books of account at its principal office in Los Gatos, California, or such other location of its choosing for the purpose of determining the amounts due to the City under Section 4.3. The City may inspect Metricom's books of account at any time during regular business hours on five (5) days' prior written notice and may audit the books from time to time at City's sole expense, but in each case only to the extent necessary to confirm the accuracy of payments due under Section 4.3. The City may require quarterly or annual reports from Metricom relating to its operations and revenues within the City. City agrees to hold in confidence any non-public information it learns from Metricom in accordance with applicable law. 4.5 Metricom shall reimburse the City at city's standard rates for all reasonable expenses relating to the preparation, issuance, implementation and administration of this Franchise, not to exceed Two Thousand Dollars ($2,000) in the aggregate. 4.6 As additional compensation for this Franchise, Metricom shall pay to the City an annual fee (the Annual Fee) in the amount of sixty Dollars ($60.00) for the use of each City-owned pole or other property upon which a Radio has been installed pursuant to this Franchise. The initial Annual Fee shall be due and payable not later than the date of installation of the first Radio on a city-owned pole or other property pursuant to this Franchise (the "Installation Date"), and shall equal the number of Radios Metricom then estimates it will install on City-owned poles or other property during the succeeding twelve (12) months multiplied by the Annual Fee. The Annual Fee for subsequent years shall be due and payable not later than thirty (30) days following each anniversary of the Installation Date and shall equal the number of Radios then installed pursuant to this Franchise multiplied by the Annual Fee, adjusted for the Prior Year Adjustment, as described immediately below. The Prior Year Adjustment shall either increase or decrease a subsequent year's Annual Fee to account for the installation or removal of Radios during the prior year, and shall equal the difference between (i) the number of Radios used to calculate the prior year's Annual Fee multiplied by twelve (12), and (ii) the actual number of Radio Months which occurred during such year, multiplied by one-twelfth of the Annual Fee. 4.7 The Annual Fee shall be increased effective January of the first year of each renewal term hereof based on the percentage 5 change in the U.S. Department of Labor, Bureau of Labor Statistics, Consumer Price Index of all items, Base 1982-1984, for the Anaheim- Santa Ana Metropolitan Statistical Area which occurred during the previous term or renewal term. 5. REMOVAL AND RELOCATION OF RADIOS. 5.1 Metricom understands and acknowledges that City may require Metricom to relocate, and Metricom shall, at City's direction, relocate immediately upon a request from city in situations described in subsections (b) and (c) below and upon five (5) business days' prior written notice in all others at Metricom's sole cost and expense, a Radio whenever City reasonably determines that the relocation is needed: (a) to facilitate or accommodate the construction, completion, repair, relocation or maintenance of a City project, (b) because the Radio is interfering with or adversely affecting proper operation of City light poles, traffic signals or other City facilities, or (c) to protect or preserve the public health, safety, or welfare. 5.2 In the event Metricom desires to relocate any Radios from one City-owned pole to another, Metricom shall so advise City. City will use its best efforts to accommodate Metricom by making another functionally equivalent City-owned pole available for use in accordance with and subject to the terms and conditions of this Franchise. 5.3 In the event that any Radio subject to this Franchise is abandoned and no longer placed in service for a period-of six (6) months or more, Metricom promptly shall notify the city, and the city, at its option, may promptly remove the abandoned Radio(s) at Metricom's sole cost and expense or dedicate the same to the City. The City shall not issue notice to Metricom that the City intends to exercise the option to require removal or dedication of Radios, unless and until the City first gives fifteen (15) days' prior written notice to Metricom to remove the Radios. If Metricom shall fail to remove the Radios as required by the city, the City shall be entitled to remove the Radios at Metricom's sole cost and expense. Metricom shall execute such documents of title as will convey all right, title, and interest in the abandoned Radios to the City. 5.4 Whenever the removal or relocation of Radios is required under this Franchise, and such removal or relocation shall cause the street light pole or other part of the Public Right-of-Way to be damaged, or if the weight of the Radios on any street light pole causes any damage, Metricom, at its sole cost and expense, promptly shall repair and return the street light pole or other part of the Public Right-of-Way, in which the Radios are located, to a safe and satisfactory condition in accordance with applicable Laws. If Metricom does not return the affected site to a safe and J. 27 satisfactory condition, then the city shall have the option to perform or cause to be performed such reasonable and necessary work on behalf of Metricom and charge Metricom for the proposed costs to be incurred or the actual costs incurred by the City. Upon the receipt of a demand for payment by the City, Metricom shall reimburse the City for such costs. CONSTRUCTION PERMIT 6.1 In the event that the attachment, installation, operation, or maintenance of Radios shall require any construction work in the Public Right-of-Way, Metricom shall apply for the appropriate street opening and other permits required by law and pay any fee charged by the City for such street opening or other permits. 6.2 Upon the completion of construction work, Metricom promptly shall furnish to the City, in hard copy and electronic format, suitable documentation showing the exact location of the Radios in the Public Right-of-Way. 7. INDEMNIFICATION AND WAIVER 7.1 Metricom agrees to indemnity, protect, defend (with counsel acceptable to the City) and hold harmless the city, its council members, officers, employees, and agents, from and against any and all claims, demands, losses, damages, liabilities, fines, charges, penalties, administrative and judicial proceedings and orders, judgments, remedial actions of any kind, and all costs and cleanup actions of any kind, all costs and expenses incurred in connection therewith, including, without limitation, reasonable attorney's fees and costs of defense (collectively, the "Losses") arising, directly or indirectly, in whole or in part, out of the activities or facilities described in this Franchise, except to the extent arising from or caused by the acts or omissions of the City, its council members, officers, employees, agents or contractors. 7.2 The waiver by the City of any breach or violation of any Provision of this Franchise by Metricom shall not be deemed to be a waiver or a continuing waiver by the City of any subsequent breach or violation of the same or any other Provision of this Franchise by Metricom. 7.3 Metricom waives any and all claims, demands, causes of action, and rights it may assert against the City on account of any loss, damage, or injury to any Radio or any loss or degradation of the Services as a result of a sudden or gradual loss or change of electrical power caused by, among others, an Act of God, an event or occurrence which is beyond the reasonable control of the City, a power outage, a lightning strike, or occasioned by the 7 installation, maintenance, replacement or relocation of any City- owned facility to which such Radio is attached. 7.4 The city shall be liable only for the cost of repair to damaged Radios arising from the city's negligent acts or omissions, and the City shall not be responsible for any damages, losses, or liability of any kind occurring by reason of anything done or omitted to be done by the city or by any third party, including, without limitation, damages, losses, or liability arising from the issuance or approval by the city of a permit to any third party or any interruption in Services. 8. INSURANCE. 8.1 Metricom shall obtain and maintain at all times during the term of this Franchise comprehensive general liability insurance and comprehensive automotive liability insurance protecting Metricom in an amount of not less than one million dollars ($1,000,000) per occurrence (combined single limit), including bodily injury and property damage, and not less than one million dollars ($1,000,000) aggregate, for each personal injury liability, products-completed operations, and each accident. Such insurance shall name the City, its council members, officers, employees, agents, and contractors as additional insureds as respects any liability arising out of Metricom's performance of work under this Franchise, or suitable additional insured endorsement acceptable to the City. Coverage shall be provided in accordance with the limits specified and the Provisions indicated herein. Claims-made policies are not acceptable. When an umbrella or excess coverage is in effect, coverage shall be provided in following form. Such insurance shall not be canceled or materially altered to reduce coverage until the City has received at least thirty (30) days advance written notice of such cancellation or change. Metricom shall be responsible for notifying the city of such change or cancellation. 8.2 Metricom shall file the required original certificate(s) of insurance'with endorsements with the City, subject to the City's prior approval, which shall clearly state: 8.2.1 Policy number; name of insurance company; name, address and telephone number of the agent or authorized representative; name, address and telephone number of insured; project name and address; policy expiration date; and specific coverage amounts; 8.2.2 That thirty (30) days prior notice of cancellation is unqualified as to the acceptance of liability for failure to notify the City; and 8.2.3 That Metricom's insurance is primary as respects any other valid or collectJ~' insurance that the City may possess, including any self- red retentions the City may have, and any,other insurance ~ City does Dossess shall be considered excess insurance o.xy and shall not be required to contribute with this insurance. The certificate(s) of insurance with endorsements and notices, shall be mailed to: city of Santa Ana 20 Civic Center Plaza Santa Ana, CA 92702 Attn: Clerk of the Council 8.3 Metricom shall obtain and maintain at all times during the term of this Franchise statutory workers' compensation and employer's liability insurance in an amount not less than five hundred thousand dollars ($500,000) or such other amounts as required by California law, and furnish the City with a certificate showing proof of such coverage. 8.4 Any insurance provider of Metricom shall be admitted and authorized to do business in California and shall be rated at least A:X in A. M. Best and Company's Insurance Guide. Insurance certificates, issued by non-admitted insurance companies are not acceptable. 8.5 Prior to the execution of this Franchise, any-deductibles or self-insured retentions must be stated on the certificate(s) of insurance, which shall be sent to and approved by the City. "Cross liability", "severability of interest" or "separation of insureds" clauses shall be made a part of the comprehensive general liability and comprehensive automobile liability policies. 9. NOTICES. Ail notices which shall or may be given pursuant to this Franchise shall be in writing and transmitted through the United States mail, by means of private delivery systems, or by facsimile transmission, if a hard copy of the same is followed by delivery through the U. S. mail or by private delivery systems, as follows: city Executive Director Public Works Agency City of Santa Ana 101 W. Fourth Street, M21 Santa Ana, CA 92702 Metricom Metricom, Inc. 980 University Avenue Los Gatos, CA 95030 Attn: Property Manager Notices shall be deemed given three (3) days after deposit in the mail as just described, or on the date received in the case of overnight courier. Either party may from time to time designate any other address for this purpose by written notice to the other party in the manner set forth above. 10. TERMINATION. This Franchise may be terminated by either party upon thirty (30) days' prior written notice to the other party upon a default of any material covenant or term hereof by the other party, which default is not cured within thirty (30) days of receipt of written notice of default (or, if such default is not curable within thirty (30) days, if the defaulting party fails to commence such cure within thirty (30) days or fails to thereafter diligently prosecute such cure to completion), provided that the grace period for any monetary default is ten (10) days from receipt of notice. 11. MISCELLANEOUS PROVISIONS. 11.1 This Franchise shall not be assigned by Metricom without the express written consent of the city, which consent shall not be unreasonably withheld. Any attempted assignment in violation of this Section shall be void. The transfer of the rights and obligations of Metricom to a parent, subsidiary, or other affiliate of Metricom, or to any successor-in-interest or entity acquiring fifty-one percent (51%) or more of Metricom's stock or assets, shall not be deemed an assignment. Metricom shall give to the city thirty (30) days' prior written notice of any such transfer. 11.2 City understands that Metricom will be operating in the 902 to 928 MHz band of the radio spectrum for which no license from the FCC is required. Metricom understands that this Franchise does not provide Metricom with exclusive use of any City poles or property and that city shall have the light to permit other providers of telecommunications services to install equipment or devices in the Public Right of Way. However, City agrees to promptly notify Metricom of the receipt of a proposal for the installation of communications equipment or devices in the Public Right of Way, irrespective of whether a license is required by the FCC for the operation thereof. In addition, city agrees to advise such other providers of telecommunications services of the presence or planned deployment of the Radios in the Public Right of Way. 11.3 This Franchise contains the entire understanding between the parties with respect to the subject matter herein. There are no representations, agreements or understandings (whether oral or written) between or among the parties relating to the subject 10 matter of this Franchise which are not fully expressed herein. 11.4 This Franchise may not be amended except pursuant to a written instrument signed by both parties. 11.5 If any one or more of the Provisions of this Franchise shall be held by court of competent jurisdiction in a final judicial action to be illegal, invalid, or unconstitutional, such Provision(s) shall be deemed severable from the remaining Provisions of this Franchise and shall in no way affect the validity of the remaining portions of this Franchise. The Council hereby declares that it would have passed this Franchise and each Provision hereof irrespective of the fact that any one or more Provisions be declared illegal, invalid, or unconstitutional. 11.6 Metricom shall be available to the staff employees of any City department having jurisdiction over Metricom's activities 24 hours a day, 7 days a week, regarding problems or complaints resulting from the attachment, installation, operation, maintenance, or removal of the Radios. The city may contact by telephone the network control center operator at telephone number (800) 556-6123 regarding such problems or complaints. 11.7 This Franchise shall be governed and construed by and in accordance with the laws of the State of California. In the event that suit is brought by a party to this Franchise, the parties agree that trial of such action shall be vested exclusively in the state courts of California, County of Orange, or in the United States District Court, Central District of California, in the County of Orange. 11.8 All exhibits referred to in this Franchise and any addenda, attachments, and schedules which may, from time to time, be referred to in any duly executed amendment to this Franchise are by such reference incorporated in this Franchise and shall be deemed a part of this Franchise. 11.9 This Franchise is binding upon the successors and assigns of the parties hereto. 11.10 Metricom acknowledges that the City may develop rules, regulations, and specifications for the attachment, installation, and removal of Radios and any similar purpose radios on the City-owned facilities, including poles, and such rules, regulations, and specifications, and when finalized, shall govern Metricom's activities hereunder as if they were in effect at the time this Franchise was executed by the City; provided, however, that in no event shall such rules, regulations or specifications materially interfere with or affect Metricom's right to install Radios, or Metricom's ability to transmit or receive radio signals from Radios installed, pursuant to and in accordance with this Franchise.. 11 11.11 To the extent the city has actual knowledge thereof, the City will attempt to inform Metricom of the displacement of any pole on which any Radio is located. 11.12 In any case where the approval or consent of one party hereto is required, requested or otherwise to be given under this Franchise, such party shall not unreasonably delay or withhold its approval or consent. 11.13 This Franchise shall not become effective until written acceptance thereof has been filed by Metricom with City's City Clerk. By accepting this Franchise, Metricom covenants and agrees to perform and be bound by each and all of the terms and conditions imposed by the Charter and Code of the City and this Franchise. Acceptance by Metricom must occur within thirty (30) days of the enactment of this Franchise by ordinance or else the Franchise is void. 12