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HomeMy WebLinkAbout4.05 MetricomAgmtWirelessCITY CLERK File # ❑���-�� AGENDA STATEMENT CITY COUNCIL MEETING DATE: (January 21, 1997) SUBJECT: Agreement With Metricom To Allow Attachment Of Wireless Radios Within The Public Right -of -Way Prepared By: Paul S. Rankin, Assistant City Manager) EXHIBITS ATTACHED: 1. Newspaper Article Explaining Wireless Technology Used By Metricom, Inc. 2. Resolution Approving The Permit To Install, Operate, And Maintain A Wireless Digital Communications Radio Network 3. Proposed Permit/Agreement RECOMMENDATIO • &r�> Adopt the Resolution authorizing the City Manager to execute the Permit. FINANCIAL STATEMENT: The revenue obtained from Metricom will be based upon the number of radios attached to City Light Standards. The City will receive $60 per location per year. It is estimated that the initial annual revenue would be between $1,800 and $2,900. In addition the City will receive $500 to cover administrative expenses associated with this permit. DESCRIPTION: Several cities in the Bay area have been approached by Metricom, Inc. regarding the placement of radio equipment within the public right-of-way. The Company is installing a wireless network which allows computer users with special modems to access the Internet, without attaching directly to a telephone line. Staff has worked with the Metricom representatives to prepare an agreement which will allow them to install their network in the City of Dublin. BACKGROUND The concept used by Metricom is similar to the design of a cellular telephone network. Radio repeaters are used to receive data. An article describing the service is attached as Exhibit 1. Radios must be placed throughout a service area in order to provide adequate coverage to allow subscribers to reach the service from different locations. Typically the firm prefers to mount the radios on street lights. The data eventually moves from the poletop radios to a wired access point located in the center of a cluster of poletop radios. Eventually it is then transferred to a Network Interconnection Facility. The network has already been established in the surrounding cities. In order to provide complete coverage to its subscribers in this area and to potentially expand its subscriber base, Metricom is interested in installing the Network in the City of Dublin. ------------------------------------------------------------------- COPIES TO: Christopher Sinclair, Metricom ROW Rep. Mcc-forms/agdastmt.doc ITEM NO. �.5 ,oj: . ~ ' Since the City has proceeded with the acquisition of the street lighting system, it is intended to allow the attachment of the Metricom radios on City owned street lights. The radios are approximately the size.ofa . shoe-box (approximately 12" x 8"). The exact number of radios required to service a particular area varies depending upon the topography and other elements. Based upon other installations Metricom anticipates that between 30 and 48 radios may be needed initially to provide coverage in the City. In order to use the system subscribers must purchase or rent a special modem from Metricom. This is in addition to regular service charges which vary depending upon the service selected. This is able to provide the user with access to the Internet without having to wire an office or home. Expanded access is made available to persons using portable computers, who would not otherwise have a wired connection while they are away from their office. PROPOSED PERMIT KEY PROVISIONS Metricom has proposed to operate within the City of Dublin, based upon terms included in a permit. (Exhibit 3) The City Attorney's Office has worked with Staff to develop the proposed terms. The Staff report will highlight key terms and conditions included in this document. Term (page 2 : Section 2) Metricom indicated that the initial term of the agreement needs to be of an adequate length to allow them sufficient opportunity to recover their investment in the network. Therefore, the initial permit is for a period of 5 years. Following the initial 5 year period their are two five year extensions available. Either the City or Metricom could elect to terminate the agreement, provided that notice is given prior to commencement of the renewal period. Fees (page 4 : Sections 4.3 and 4.4) Metricom will pay the City $60.00 per year for the use of each City-owned pole or other property upon which a radio has been installed. Annually Metricom will reconcile the amount owed to account for additions or deletions from the Network within the City. In addition section 4.4 provides for the Annual Fee to be increased based upon the change in the Cpr. Alternative For Services In Lieu of Fee (page 5 : Section 4.5) Annually the City will have the opportunity to obtain wireless services from Metricom in lieu of the Annual Fee. It is the recommendation of Staff that for the first one year period, that the City accept the Annual Fee. Without an identified use and need for the technology within the City data processing system it would be premature to select services at this time. This selection can be modified at each Anniversary Date. Acknowledgment Of Potential For Franchise Fees (Page 6: Section 4.8) The cities of Dublin, San Ramon, Livermore and Pleasanton have embarked on a consultant study to assist with franchise issues in the area oftelecommunications. This effort is scheduled to get underway in the next month. Under new federal laws the regulation of this area must be addressed in a manner which will not be punitive to one operator or industry. The joint study will provide the cities with the framework to consider franchise and other regulatory ordinances. Section 4.8 of the Permit allows the City in the future to enact franchise fee requirements, provided they do not exceed 5% of the gross revenues. CONCLUSION Staff has prepared a resolution which will authorize the City Manager to execute the Permit in substantially the form presented with this report. Staff would recommend that the City Council adopt the Resolution. .... '.,' .'. .. . . ): . ~mt JJast 4ffilerOtlll ~ ~fu5 your modem with radio . r Power users on the go are tuning in for mobile, low-priced Internet access OST ads and articles for wireless technology focus on the fascination and ftill. You know: Make calls from your car, receive faxes at the beach, and surf the Net from a motilltaintop! But those places aren't really where I end up wanting portable cOlmections. I want my Internet for conferences when I'm at my desk. On a warm evening, I want my In- ternet for on-line chatting while out on the deck. I also want it to check e-mail while in someone else's office lobby, when I'm early for an ap- pointment, and then again at their desk when I'm showing them an in- teresting Web site. And I want it the next morning when I arrive at my daughter's school and want to show the kids how to do research on line. I'm not alone in these needs. Think of all those sales- people, service experts, and field engineers who carry portable computers. They need to receive the latest specs, memos, forms, readings, prices and so on, and the Net is a good way to get them. And there are lots of other people who could use portable connections. EXHIBIT 1 e. By PHlLUP ROBINSON Special to the Mercury News . I Anyone who has faced the hassle of wiring a home, office or school for Net access will enjoy the benefit of wireless. San Jose Mercury News · Computing · Sunday, July 14, 1996 I've found a reasonably priced way to do it. And it's one of the older technologies around: radio. I\'e been playing with it for the past month and don't want to give it up. It's called Ricochet, and it comes from MetIicom Inc., a Los Gatos company that cut its teeth over the past decade by selling mobile radio to utility-industry senice workers. Counting the ben~fits The service and speed? Com- plete and unlimited Internet ac- Cl'SS at 38.4 kilobits per second, though officially it only promises 2S.Skps. You get all the usual sel,ices: Web access, Internet Re- lay Chat, e-mail, FTP and Usenet. I can dial out to other modem nwnbers and send faxes (though I can't receive them). The cost is reasonable, too. I gebthe modem for either $10 a month rental or $299 purchase, when I sign up for a year of ser- vice, or; $599 purchase apiece witilOut the service promise (if, for example, I wanted to buy sev- eral and have them call one an- otller, outside an official Ricochet region, for my own wireless net- work). Then, I get the service: a $45 activation fee plus $29.95 per month for unlimited Internet ac- cess. It's $5 per month more for telephone modem access to call other modem numbers or $10 per montil more for TMA plus fax sending and a remote e-mail box (for retrieving e-mail from out- side a Ricochet area). Because you have to use this particular modem to get Ricochet, $40 a month is the true minimum. Even that's reasonable for how much use I'll put it through; how- ever, I'd like it better without that activation fee. Security should be great be- cause the system hops around on different frequencies, making the signal harder to intercept. Rico- chet promises even better securi- ty soon and offers encryption, or scrambling, for corporate gate- ways to Ricochet. Ease? The modem is about tlle size of a large cellular phone, has a battery that lasts twice as long as tile one in my portable PC and plugs into the serial port. Win- dows 95 recognizes it automati- cally. There's also Windows 3.1 and Macintosh software as well as software for popular portable digital assistants. And because Ricochet is based on the Inter- net's own TCP/IP standard, I can use any of my internet-enabled programs with it. That's probably the single best facet of this con- nection. Reach? Once on line, I don't know that I'm running through a radio except that my phone line isn't tied up, and I can move the computer anywhere in tile house. I even can go down to the post office and the library. Limited range What I can't do is keep the con- nection when I cross the Golden Gate Bridge into San Francisco. Nor can I surf the web from my favorite beach north of Santa Cruz. You see, Ricochet works through a constellation of small, low-power radios attached to power poles and buildings. Much of the San Francisco Bay Area is covered by tilese radios, though the city of San Francisco isn't covered, yet. The San Jose area is covered pretty thoroughly, as is Santa Cruz, because of the Uni- versity of California at Santa Cruz. Other Bay Area schools with coverage include Stanford, San Francisco State and Berkeley. Metricom, Inc. 980 University Avenue Los Gatos, CA 95030 1 (888) 4NO-WIRES www.metricom.com Check Ricochet's Web site (http://wVI.w.metricom.com ) for a map of coverage. Ricochet has limited coverage outside tile Bay Area, though Me- tricom says it will hit Seattle this summer and Washington, D.C., in tile fall. The 15 busiest U.S. air- ports also are due to get cover- age. . Out with the old So, because I'm lucky enough to live in a Ricochet zone, tilis radio service almost completely has supplanted my traditional wired Internet service for use in every room of my house and the nearby offices I visit. But it promises more than tllat. It not only cuts the cord, it cuts the need to install the cord in tlle ftrst place. Anyone who has faced the time, dollar and bother of the costs for "iring a home, office or school for Internet access will ap- preciate that beneftt, especially if you don't need Internet access in every room all the time. I wish Ricochet offered ISDN speed now - the company says it's coming. I wish there was more complete coverage of my area and the countrJ,. (Meanwhile, it's one more reason to love living in the Bay Area) But mainly, I wish I'd found Ricochet sooner and hope tilat the service doesn't decide one day - like a restaurant facing a gour- mand - to cut me off for using so many of those unlimited Internet hours from everywhere I want. . Write Phillip Robinson in care of the Mercury News, Business Departmen~ 750 Ridder Park Drive, San Jose, Calif. 95190; or e-mail: prrobinsan@aoLcom. . Metricom is a registered trademark and Ricochet is a trademark of Metricom, Inc. ~ Reprinted with permission from the San Jose Mercury News. July J4. 1996. .. . 7 5 - 1. f RESOLUTION NO. ~ 97 . A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DUBLIN ********* Approving A Permit With Metricom, Inc. WHEREAS, Metricom, Inc. has requested permission from the City of Dublin to place wireless digital cortll11unications I;adios in the public right-of-way; and WHEREAS, the purpose of the installation is for Metricom to operate its Ricochet wireless digital communications network; and WHEREAS, A detailed permit has been written and approved by Metricom, identifying the terms and conditions under which Metricom shall be authorized to utilize the public right-of-way; and WHEREAS, the terms of the Permit also defme the manner of compensation to the City. 'NOW, THEREFORE, BE IT RESOLVED that the City Council does hereby approve the Permit with Metricom, Inc. and the City Manager is authorized to execute the document on behalf of the City. BE IT FURTHER RESOLVED, that the City Council directs Staff to take any measures necessary . to administer the permit, including whether the method of compensation to the City will be in the form of , --' an Annual Fee or Metricom Equipment and Services. PASSED, APPROVED AND ADOPTED this 21st day of January, 1997. AYES: NOES: ABSENT: ABSTAIN: Mayor A TrEST: City Clerk . 3 EXHIBIT 2 ent oy: MetrlCom, Inc. . Hlcocnet Div. 40B 3044U2Bj 01/15/9f 1:55PMjJeHax R329jpage lfj3U PERMIT TO ATTACH, INSTALL, OPERATE AND MAINTAIN A WIRELESS DIGITAL COMMUNICA TJONS RADlO NET'VORK . This Pennit, dated , _, is issued by the City of Dublin to Merricom. Inc. REerr ALS WHEREAS, under California law, the City has the right and power to regulate the time, location, and manner of attachment, installation, operation, and maintenance of wireless digital communications radios in the public right-at-way within the limits ot the City; and WHEREAS, Metricom, Inc. wishes t.O attach, install, operate, and maintain a wireless digital communications radio network on facilities located in the public right-at-way for purposes of op;rating its Ricochet wireless digital conununications radio network; , . Now. THEREFoRE, for good and valuable cOll!lideration the receipt and sufficiency of which is hereby acknowledged, this Permit is issued under the following covenants, terms, and conditions: 1. Definitions. .:'. .. 1.1 "Agency" means any governmental agency or quasi-governmental agency other man the City, including the FCC and the PUC. 1.2 "City" means the City of Dublin. 1.3 "Effective Date" means the date first stated above. 1.4 "FCC" means the Federal Communications Commission. 1.5 "Fcc" means any assessment, license, charge, fee, imposition, tax (but excluding any utility users' tax or franchise fees). or levy lawfully imposed by any governmental body. L6 "uws" 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 tbe parties to this Permit, in effect either at the time of execution of this Permit or at any time during the presence of Radios in the Public Right-of- Way. 1.7 "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. f:Cll\dublio\cOllSt:nt3.doc 1 [Rev; 7.30-%J 1/15197 .... ..... '1 EXHIBIT 3 .. ~- . e-: .... e.- S" -" _...____ _.....____,~. __._ _ r*__._ __. _ _ __. _ r...... __ _. ........_. .~...___, -.. "'-.-.--~_.. ._-........'.........'CIA..;,r'---'1 -~- ._,,,,,,,,y 1.8 "PUC" means the California Public Utilities Commission. 1.9 "Permit" means this r'Permit to Attach, Install, Operate, and Maintain A Wireless Digital Communications Radio Network". 1.10 "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. 1.11 "Provision" means any agreement, clause, condition, covenant, qualification, restriction, reservation. term, or other stipulation in this Permit that defines or otherwise controls, establishes, or limits the performance required or permitted by any party to this Permit. All Provisions, whether covenants Or conditions. shall be deemed to be both covenants and conditions. 1.12 "Public Right-of-Way" means in, upon, above, along, across, under, and over the p't1blic streets, roads, lanes, courts, ways, alleys, boulevards, and places, including, without limitation, all public utility easements and public service casements, as the same now or may [h~re:il.fter 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 a.greement between the City and any such Person or Age.ncy. 1.13 "Radio Month" meam a calendar month during which a Radio occupies space on a City-owned pole or other property, even if such occupancy is less than the entire month. 1.14 "Radios" means that radio equipment to be imtaIled and operated by Metricom hereunder. 1.15 "Ricochet MCDN" means Ricochet MicroCellular Digital Network. a wireless digiral communications micro cellular radio network owned and operated by Metricom. 1.16 "Services" means we wireless digital communications services provjded through Ricochet by Metricom. 2. TERM. This Permit shall be for a tenn of five (5) years. unless it is earlier terminated by eitber parry in accordance willi the provisions herein. and shall commence on the "Effective Date". This Permit shall automatically be renewed for two (2) successive (5) five-year terms by either pnfiy 01\ the same t.:.rn'iS and L..OlhiltL..Jllb ,d :.d fUl L1 he! eiu {cxu::pL ilnd. !lie AIll1ual Fee shall be subject to adjustment as provided in Section 4.2) unless either parry notifies the other of its intention not to renew prior to commencement of a succeeding renewal term f: CIl \duhJ in\~llSent3 .doc [Rev: 7.3(1..96] 1I15!97 2 ! . >ent by: Metricom, Inc. - Ricochet Div. 408 3544028j 01/15/97 1 : 56PMjJeHax #329jpage 19/30 e. 3. SCOPE OF PERMIT. 3.1 Any and all rights expressly granted to Metricom under this Permit. which shall be exercised at Metricom's sole cost and expense, shall be subject to the prior and continuing right of the City under applicab~e 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 Permit shall be deemed to gram, convey, create. or vest a perpetual real property interest in land in Metricom, 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, electroliers, or other City-owned property located 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 tc> the rights granted u.nder this Pennit ~y, at the City's option, be subject to the prior review and approval of City. During the term of this Permit. the location of each Radio installed by Metricom or its designee shall be disclosed. in writing, to me City by Metricom within ten (10) days after its installation, removal. or relocation. Such identifications shan he: inr.nrporMN1 in F.xhihit A to this Permit. e 3,3 The City hereby authorizes and permits Metricom to attach. install. operate, maintain, remove, reattach, reinstall, relocate, Blld replace such number of Radios in or on street lights. utility poles or other property owned by Pacific Gas & Electric Company (uPG&E") or other entities or persons located within the Public Rigbt-of~Way as might be permitted by PG&E or such other property owner(s). Metricom shall furnish to the City docwnentation of said permission from PG&E or the other property owner(s). 3.4 Except as permined by applicable Laws or this Permit, in the performance and exercise of its rights and obligations under this Permit, 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 dtains, gas mains, poles, aerial and underground electric and telephone wires, electroliers, cable television, and other teleconununications, utility, and municipal property without the express written approval of the owner or owners of the affected property or properties_ 3.5 Metricom shall comply with all applicable Laws in the exercise and performance of its rights and obligations under this Permit. 3.6 The City further reserves the right to modify the service voltage delivered to Or at any strf:f.t lieN pnlr. nr nrility pnlf': nn whirh fI 'Rarlln may h~ located. Metricom ~h:dl replace or modify any Radio that will be affected by sllch voltage modifications within thirty (30) days of receiving notice of voltage modifications. [n the event that Metricom fails to f;ca\dllblill\eon-~ent3.doc: 3 (R.uv: 7-30-96J 1/15/97 . ~ -~-_.~--- , 3ent by: Metricom, Inc. - Ricochet Div. 408 3544028~ 01/15/97 1:57PM;Jedax #329;page 20/30 .' e', e--: replace or modify any Radio within the thirty-day notice period before the voltage modification, the City may disconnect any suc.b Radio until Metricom performs and completes the necessary work and advises City accordingly. 3.7 If Metricom in performing under this Permit obtains PG&E's permission for Metricom to attach its Radios to PG&E's poles or other property, which poles or property are located within the Public Right of Way, City agrees not to use such PG&E permission to Metricom, or activities pursuant to this Permit, as a basis to challenge PG&E's Franchise Rights from the City. or as a reason for changing the amount of PG&E' s payments under that Franchise to the City. 4. FEEs AND TAXES. 4.1 Metricom acknowledges and agrees that the City may require users of revenue- producing services such as the Services to pay a utiliry users' taX ("Utility Tax") to the City purs~ant to City's Municipal Code. If the Services arc subject to the Utility Tax, Merricom agrees (0 collect the tax from Service users and remit such tax to the City in accordance with City's Municipal Code_ 4.2 Metricom shall be solely responsible for the payment of all lawful Fees and for the payment of 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 Permit. 4.3 Metricom shall pay to the City an annual fee (the U 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 bas been installed pursuant to this Agreement. The initial Annual Fee shall be due and payable not later than the date of installation of the first Radio under this Permit (the .'Installation Date"). and shall equal the number of Radios Metricom then estimates it will install 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 total number of Radios then installed on City-owned polc:s or other property pursuant to this Permit multiplied by the Annual Fee, adjusted fOT the Prior Yc:ar Adjustment, as described immediately below. The Prior Year Adjustment shall either increase Of decrease a subsequent year's aggregate Annual Fee to account for the installation or removal of Radios during the prior year. and shall equal the difference between (i) the total number of Radios used to calculate the prior year's aggregate 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. 4.4 The Annual Fee shall be increased effective January of the first year of each renewal tenn hereof based on the percentage change in the U.S. Department of Labor, Bureau of Labor Statistics, Consumer Price Index of all items. Base 1982-1984, for the San Francisco f:ca\dublin\consent3 .doc fRC\': 7-30-96J 1115197 4 7 senL oy: Metrlcom, lnc. . HlcoCnet U1V. 4U~ ~~44U~~; Ul/1~/~1 l:~/~M;JeHax #~2~;page 21/~U - Oakland - San Jose Metropolitan Statistical Area which occurred during the previous term or renewal term. . 4.5 Notwithstanding Section 4.3: 4.5,1 In lieu of the Annual Fee City shall be entitled to receive: .4.5.1.1 up to fifty (50) subscriptions to use Metricom's Ricochet Services in the City for so long as Metricom maintains Radios in use on the appropriate number of City-owned poles or other City~owned property pursuant to this Permit. Such Option may be exercised by ~ity in increments of one (1) subscription in lieu of the Annual Fee for one (1) Radio. Metricom shall provide such subscriptions at such time as Metricom is prO\'iding oommercial service in the City. provided thAt pri~r to 5ueh stl''Vla d.u-t Cily :5kll nOI be entitled to receive the Annual Fee or other compensation in lieu thereof. Metricom will - not be required to pay tl1e Annual Fee for the number of Radios installed on City~owned poles or other City-owned property equal to the number of subscriptions the City elects to receive as prov~ded above. The number of Radios installed on City~owned poles or other City-owned property in excess of the number of subscriptions the City elects to receive shall be subject to the Annual Fee. City's use of the subscriptioI13 shall be subject to Metricorn' s stand;u-d Ricochet Service terms and conditions. City shall be required to purchase at its sole cost and expense any equipment and software required to use the Ricochet Service; or ::. 4.5.1.2 up to twenty (20) subscriptions to use Metricom's Ricochet Services and the use of up to twenty (20) Metricom modems. for so long as Metricom maintains Radios in use on the appropriate number of City~owned poles or other City-owned property pursuant to this Permit. Such option may be exercised by City in increments of five (5) subscriptions and five (5) modems in lieu of Annual Fees for twelve (12) Radios. Metricom shall provide such subscriptions and equipment at such time as Metricom is providing commercial service in the City, provided that prior to such service date City shall not be entitled to receive the Annual Fee or other compensation in lieu thereof. The number of Radios installed on City-owned poles or other City-owned property in excess of the number of subscriptions/modems the City elects to receive shaH be subject to the Annual Fee. City's use of the modems and subscriptions shall be subject to the Standard terms and conditions set forth in the terms and conditioDS packaged with the modems. City shall be required to return to Metricom any equipment provided to City upon termination of any free subs~iptions in good condition, ordinary wear and tear excepted. 4.5.2. City shall be requited to make an election under this Section 4.5 within thirty (30) days of the Effective Date, or each anniversary of the Effective Date, as the caSe may be. Such election shall be applicable for the longer of the following one (1) year period or until a subsequent election is made in accordance with the previous sentence. 4.5.3. City shall use all subscriptions and equipment provided pursuant to this Section 4,;) snlr.ly for its Own 1l~t':. Flnri shRIl not ht:" entitled to resell, di~tribute Or otherwh:e permit the use of the same by any other party. f:ca\dl.lblin\conscm3.doc 5 (Rl;V: 7->>901 1/1 5/97 "- ~;-. -- :". z '~ent by: Metricom;. Inc. . Ric6chet Div. 408 3544028; e e. . 01/15/97 1:58PM;Jedax #329;page 22/30 4.6 Metricom shall reimburse City for their administrative expenses, up to a maximum of Five Hundred Dollars ($500). 4.7 In accordance with the California Constitution and the California Revenue and Taxation Code, as such laws are written on the date of this Permit or. may be amended in the future; if the Alameda County Assessor determines that a possessory interest in publicly owned property has been gr(lllted by City to Metricom, Metricom shall be respOnsible for the payment of the full amount of the Possessory Interest Assessment. 4,8 Notwithstanding any other provision of this Pennit, Metricom acknowledges and agrees that City may enact legislation requiring providers of corrununications services such as MetricoID to pay to City a franchise Or other fee to compensate City fairly for the use of City's public rights of way with respect to the communications services provided therein or thereon. . Metricom hereby agrees that Metricom's use of City's public rights of way shall be subject to any .such franchise or other fee legislation enacted by City, and Metricom agrees to collect from the users of its Services and remit to City any such franchise or other fees, all in compliance with the applicable terms and requirements set forth in the applicable provisions of the City Munj.cipal Code. City recognizes Metricorn's CODcern that its competitors be treated similarly with regard to any such franchise or other fees to access similar City facilities. City will make a reasonable effort to assure that such charges are equivalent, subject to allowances for the nature of City property utilized, the market demand for such use of such facilities. and the City's legal authority to impose such charges. Notwithstanding the foregoing. such franchise Or other fee shall not ex~~ fiw pe:rccnt (S %) of Mctricom's adiusted a-fOSS revenues. 5, REMOVAL ANn RELOCATION OF RADIOS. 5.1 Metricom understands and acknowledges that City may require Metricom to relocate, and Metricom shall, at City's direction, relocate upon ten (10) business days' prior wrinen Dotice in situations described in subsection (a) below, and immediately in simations described in subsections (b) and (c) below, at Memcom'll sole COs[ and expense. a Radio whenever City reasonably detenni.nes that the relocation is needed: (a) to facilitate or acconnnodate 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. If Metricom shall fail to relocate any Radios as requested by the City in accordance with the foregoing sentence, City shall be entitled to relocate the R3dios at Metricom l s sole cost and expense. 5.2 In the event Metricom desires to relocate any Radios from one City-owned pole or other property to another City-owned pole or other property, Metricom shall so advise City. City will use its best efforts to accommodate Metricom by making another functionally equivalent City-owned pole or other property available for use in accordance with and subject to me terms aru.1 conditions of this Permit. f: ca \dl.l blin\consem3 .doc [Rev: 7-:,lO-96) HiS'!!7 6 e; )t:lIL uy; MeU'J.CUIII, .LJIC. - nJ.COCneL UJ.V. qUt:l ;j044U'::O, Ul/10/~1 I;O~~MjJeHax ";j~~j~age ~;j/;jU 5.3 In the event that any Radio subject to this Permit 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 require Metricom to promptly remove the abandoned Radio(s) at Metricom I s sole cost and expense or dedicate [he 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 Merricom to remqve 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, but in no other Metricom propeny, intellectual or otherwise, to the City. 5,4 Whenever the removal or relocation of Radios is required under this Permit, . and such removal or relocation shall cause the Public Rigbt-of- Way to be damaged, Metricom, at its sole cost and expense, promptly shall repair and return the Public Right-of-Way, in whi~..h the Radios are located, to a safe and satisfactory condition in accordance with applicable Laws, normal wear and tear excepted. If Metricom docs not repair the site &S just described, 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, at City's standard rates_ Upon the receipt of a demand for payment by the City, Merricom shall reimburse the City for such costs. 6. CONSTRUCTION PEaMrr. 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. 6.2 Upon the completion of construction work, Metricom promptly shall furnish to the City, in hard copy and Metricom's electronic format, suitable documentation showing the exact location of the Radios in the Public Right-of-Way. 7. INDEMNIFlCA TION AND WAIVER. . . 7.1 Metricom agrees to indemnify, 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, jud~ents, 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 t the "Losses") arising. directly or indirectly. in whole Dr in part, out of the . activities or facilities described in this Permit, e~cept to the extent arising from or caused by f;Cl/. \dubl i n\consent:! .doc [Rev: 7-)0-%1 1115/97 7 It> .1. ;ent by: MetricomJ Inc. ._ Ricochet Div:- 408 3544028; 01/15/97 1:59PM;Jedax #329;page 24/30 e: the negligence Or willful misconduct 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 Permit 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 Permit by Metricoffi. 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 installation, maintenance, replacement or relocation of any City-owned facility to which such - Radio is attached. , 7.4 The City shall be liable only fOf the cost of repair to damaged Radios arising from the sole or gross negligence or willful misconduct of City or its employees or agent~, 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 pennit 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 Permit 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 man 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 contr~ctors as additional insureds as respects any liability arising out of Metricom's performance of work under this Permit, 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. e: 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: f: ca\dublin\consem3 .doc [lWv; 7-30-96] 1115/97 8 II )ent by: Metricom, Inc. . Ricochet Div. 408 3544028; .01/15/97 2:00PM;Jetiax #329;Page 25/30 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 collectible insurance that the City may possess, including any self-insured retentions the City may have. and any other insurance the City does possess shall be considered excess insurance only and shall not be required to contribute with this insurance. The cenificate(s) of insurance with endorsements and notices, shall be mailed to: 8.3 Metricom shall obtain and ma.intain at all times during the term of this Permit statutory workers' compensation and employer's liability insurance in an amount not less than five hundred thousand dollars ($500,000) or such other amounts as required by California law, and furnish the City with a certificate shOWing proof of such coverage. :. , .. 8.4 Any insurance provider of Metrioom shall be admitted and authorized to do business in California and shall be rated at least A:X in A. M. Best and Company's Insurance Guide. Insurance certificates issued by non-admitted insurance companies are not acceptable. 8.5 Prior to the execution of this Pemtit, any-deductibles or self-insured retentions must be stated on the certificate{s) of insurance, which shall be sent to and approved by the City. "Cross liability", "severability of interest" or "separation of insureds" clauses shall be maae a pan of the comprehensive general liability and comprehensive automobile liability policies. 9, NarrcES. All notic.es which shall or may be given pursuant to this Permit shall be in writing and delivered personally or transmitted: (i) through the United States mail, by registered Or certified mail. postage prepaid; (ii) by means of prepaid overnight delivery service; or (iii) by .. f; ca \du bl in\CI.lIl$Cflt).doc (Rev; 7-30-96) 1I1SW7 9 /J.... ~.<. > ;ent by: Metricom, Inc. . Ricochet Div. 408 3544028; 01/15/97 2:01PM;JeHax #329;page 26/30 . facsimile traru>mks:ion, if a hard copy of the same is followed by delivery through the U. S. mail or by overnight delivery service as just described, as follows: . . I?; City Metricom Metricom, Inc. 980 University A venue Los Gatas, CA 95030 Ann: Property Manager Notices shall be deemed given upon receipt in the case of personal delivory, three (3) days after deposit in the mail, or the next day in the case of overnight delivery. 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 Permit may be terminated by either partY upon forty five (45) days' prior written notice to the other party upon a default of any material covenant or tenn hereof by the other party, which default is not cured within forty five (45) days of receipt of written notice of default (Dr, if such default is not curable within forty five (45) days, if the defaulting party fails to commence such cure within forty five (45) 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. For purposes of the foregoing sentence, a default of a material covenant or tenn shall include, but not he limited to: (i) failure to pay any SumS due hereunder prior to expiration of the foregoing ten-day grace period; Oi) failure to timely remove or relocate Radios as required hereunder; (iii) failure to comply with terms of tbis Permit, or of applicable laws, ordinances, codes or regulations. relating to public health and safety; (iv) failure to provide indemnity as required by Paragraph 7 hereof; or (v) failure to maintain the insurance required by Paragraph 8 hereof. 11, ASSIGNMENT. A. This License shall not be assigned or transferred by Metricom without the prior written consent of City, which consent shall not be unreasonably withheld, conditioned, or delayed. Metricom shall give City thirty (30) days' prior written notice of any proposed assignment or transfer for which City's consent is required hereunder. City shall give Metricom written approval or disapproval of any such proposed assignment or transfer within ninety (90) days after Metricom's request therefor, and City's failure to approve Or deny any such request f:ca\dublin\consenC.doc 10 [RI'V: 7-30-96) 1/15/97 I"" ,ent by: Metricom, Inc. ~ Ricochet Div. 408 3544026; 01/15/97 2:01PM;JeHax #329;page 27/30 within such ninety (90) day period ~ha11 be deemed :ill approval. Metricom shall provide aU information and documents reasonably requested by the City relating to the transaction. Notwithstanding the foregoing, (i) the transfer of the rights and obligations of Metricom to a subsidiary or other affiliate of Metricom, or to a commercial lending institution designated from time to time by Metricom or its affiliates as security for financing purposes. shall not be deemed an assignment or transfer for purposes of this License, and (ii) a change in control of Metricom (as defined in Section lOC below) shall not be deemed an assignment or transfer for purposes of this License. . B. Upon a change in control of Metricom (as defined in Section lIe below), City shall have the right, for a period of ninety (90) days after it receives notice of the occurrence of such change in control, to notify Metricom in writing of its intention to terminate this License effective no less than sixty (60) days after such written notice. Metricom shall provide all information and documents reasonably requested by the City relating ro the U'ansaction. Such termination shall not be effective, and this License shall continue in full force and effect in accordance with its tenus, if, during such sixty (60) day period, Mctricom provides City evid.~nce rellSonably demonstrating that: (i) Metricom is Dot then in breach of this License, and (ii) the financial condition of Metricom or any successor in interest to Metricom's rights ,under this License immediately after the change in control would be at least as strong as Metricom's financial'condition immediately prior to the change in control. C. For purposes of this License, a "-change in control" of Metricom shall mean the acquisition . by any person (including any "group~ within the meaning of Section 13(d) of the Securities '::.,. " Exchange Act of 1934, as amended) of the power directly or indirectly I through the ownership of voting securities, by contract or otherwise, to direct the management and policies of Metricom; provided however that the ownership of more than fifty percent (50 %) of Met:ricom's outstanding voting securities shall be deemed to constitute control, and the ownership of thirty percent (30%) or less of Metricom's voting securities shall be deemed not to constitute control. Metricom shall advise City whenever any person Or "group" becomes the owner of more than thirty percent (30 %) of Metricom' s outstanding voting sec.urities. 12. Miscellaneous Provisions. 12.1 City understands that Metricom will be operating in one or more bands of the radio spectrum for which no license from the FCC is required. Metricom understands that this Permit does not provide Metricom with exclusive use of any Ciry-awned poles or property and that City shall have the right to permit other providers of teleconununications services to install equipment or devices in the Public Right of Way. However, City agrees to promptly notify Metricom of the acceptance of any proposal for the installation of communications equipm~l1t or d~viGe! h\ w !'uhlIG R1~ht tJfWIt"y. lU~!.p~tlV't 6f wh~thtl a Ij~lI;)c j~ lc:yu.llcd 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. . f:ca \dubl in\::onsCDt3 .doc [Rev: 7.30.96) l/lSt91 11 /'1 ~_____'_"-~"_ ....___..;.._..___......._._~..-"...:" ..__~. .........oI\..........;........._.~__..r_____'--.. - ---~..- ._- 't;' ;ent by: Metricom, Inc~ ~ Ricochet Div. 408 3544028; e. .: . 01/15/97 2:02PMjJeHaX #329jpage 28/30 12.2 This Permit contains the entire understanding between the parties with respect to the subject matter herein. There are DO representations, agreements Or understandings (whether oral or written) between or among the p~rties relating to the subject matter of this Permit which are not fully expressed herein. 12.3 This Permit may not be amended except pursuant to a written instrument signed by both parties . 12.4 If anyone or more of the Provisions of this Permit shall be held by court of competent jurisdiction in a final judicial action to be void, voidable, or unenforceable, such Provision{s) shall be deemed severable from the remaining Provisions of this Pennit and shall in no way affect the validity of the remaining portions of this Pennit. 12.5 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 anachmem, installation, operation, maintenance, or remoyal 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. 12.6 This Permit shall be governed and construed by and in a.ccordance with the laws of the State of California, In the event that suit is brought by a party to this Permit, the parties agree that trial of such action shall be vested exclusively in the state courts of California, County of Alameda. or in the United States District Court, Northern District of California. 12.7 All exhibits referred to in this Pennit and any addenda, attachments. and schedules which may, from time to time, be referred to in any duly executed amendment to this Permit are by such reference incorporated in this Permit and shall be deemed a part of this Permit. 12.8 This Permit is binding upon the successors and assigns of the parties hereto. 12.9 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 Ciry-owned facUlties, including poles, and such rules, regulations, and specifications, and when finalized, sball govern Metricom's acrivlties hereunder as if they were in effect at the time this Permit 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 Merricom's ability to transmit or receive radio signals from Radios installed, pursuant to and in accordance with this Permit. 12.10 To the extent the City has actual knowledge rhereof. the City will attempt to inform Metricom of the displacement of any pole on which any Rlldio is located. f;ca \!lublin \consenr.3.doc [Rev; 7.)0.96] IllS/in 12 15 'k' . I~ent by: Metricom, Inc. - Ricochet Div. 408 3544028; 01/15/97 2:03PM;JeHax #329;page 29/30 " 12.11 In any case where the approval or consent of one party hereto is required. .' requested Or ot.herwif:f\ to hI': eivl':n nnnf':r th if) Pe-rmit, siUch party ~hnlI not unre~gonably delay or withhold its approval or consent. EXECUTED in on the date first above stated_ CITY: [INSERT NAME] By: Title: The Provisions of this Permit are agreed to and hereby accepted. 'r METRICOM: METRICOM, INC. By: . Kirk Wtlmplf"r Director of Right of Way . f; e:a\dablm\conscnt3 .doc [Rev; 7-30-06) 1115/97 13 /~ ,. ;~ent by: Metricom, Inc. - Ricochet Div. 408 3544028; .' . . /7 f; ca\dllblin\mnsent3 .doc [Rey; 7-30-96] 1/15/97 01/15/97 2:03PMjJedax #329;page 30/30 EXHIBIT A RADIO LOCATIONS PROPOSED LOCATIONS TO BE PROVIDED AFTER REVIEW OF STREET LIGHT MAPS AND PRIOR TO DEPLOYMENT 14