HomeMy WebLinkAbout4.05 MetricomAgmtWireless
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CITY CLERK
File # D~[Q][(J]-~lQJ
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AGENDA STATEMENT
CITY COUNCIL MEETING DATE: (January 21, 1997)
Agreement With Metricom To Allow Attachment Of Wireless Radios
Within The Public Right-of-Way
~repared By: Paul S. Rankin, Assistant City Manager)
EXIllBITS A TT ACH~D:
SUBJECT:
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~ vP Adopt the Resolution authorizing the City Manager to execute the
/ V 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.
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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. Staffhas 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.
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COPIES TO: Christopher Sinclair, Metricom ROW Rep.
ITEM NO. 4.;
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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.
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your modem with radio
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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
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By PHlLUP ROBINSON
Special to the Mercury News
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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.
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Reprinted with permission from the San Jose Mercury News. July J4. 1996.
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RESOLUTION NO. ~ 97
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A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
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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
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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;
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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.
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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.
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EXHIBIT 3
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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
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1I15!97
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01/15/97 1 : 56PMjJeHax #329jpage 19/30
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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
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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
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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.
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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.
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'~ent by: Metricom;. Inc. . Ric6chet Div. 408 3544028;
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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.
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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
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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:
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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
..
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. 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
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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.
.
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~_____'_"-~"_ ....___..;.._..___......._._~..-"...:" ..__~. .........oI\..........;........._.~__..r_____'--.. - ---~..- ._-
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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.
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"
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
.
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EXHIBIT A
RADIO LOCATIONS
PROPOSED LOCATIONS TO BE PROVIDED
AFTER REVIEW OF STREET LIGHT MAPS
AND PRIOR TO DEPLOYMENT
14