CC- Item 2A - Public Hearing - Metricom Nonexclusive Attachment Agreement S E M F
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TO: HONORABLE MAYOR
AND MEMBERS
ROSEMEAD CITY COUNCIL
FROM: FRANK G. TRIPEPI, CITY MANAGER ,. .447"---
DATE:
. 2DATE: MARCH 26, 1997 ,
RE: PUBLIC HEARING - METRICOM NONEXCLUSIVE ATTACHMENT
AGREEMENT
Metricom, Inc. of Los Gatos, California has developed a radio
device which will allow wireless radio communication between
computers. The device uses a portion of the radio spectrum set
aside for low-powered, non FCC licensed systems. A wireless
modem plugs directly into a laptop, desktop or PDA (Personal
Digital Assistant) computer and then transmits data wirelessly
to Metricom's network through pole top and building top
transmitters. The system, which is already operational in parts
of Northern California, will allow portable computer owners to
access the Internet and other modem applications without
connecting to a telephone line. The system uses free shared
spectrum - i.e. , the same frequencies that portable telephones,
remote controls, and other unlicensed low powered devices
utilize - and contemplates installing a small number of the low
powered transceivers in each city.
The benefits to computer users are potentially great. For
$29.95 per month, an end user can secure complete wireless
Internet access. There is no need to add a telephone line as
the wireless modem connects via radio waves to Metricom's
system.
Because Metricom is utilizing City right-of-ways, and possibly
City utility poles, for placement of its wireless transceivers,
it needs the City's permission. The success of the network
depends upon it's being available wherever a wireless modem user
might reasonably expect to go. The company is therefore
applying for permission to install it's wireless network in
every city in Los Angeles County.
COUNCIL AGENDA
APR 0 .81997'
ITEM No. 1" A
Page 2 .
The attached agreement is the basic form used by Metricom in all
of their California cities, as amended as a result of
negotiations between the City Attorney's office and Metricom's
representative. Under the Agreement, Metricom pays rental fees
of $60. 00 per transceiver per year to the owner of the utility
poles.
The Agreement provides for Metricom to pay a franchise fee to
the City based on 5% of gross revenues. This will defray any
and all regulatory expenses of the City. It also provides for
reimbursement for the City's expenses incurred in negotiating
this, agreement, including attorney's fees. Metricom is required
to obtain building permits and is not exempted from any fees
therefor. Thus, the nonexclusive franchise will not result in
any expense to the City.
The Agreement contains a Most Favored Nation's clause under
which Metricom agrees that if it negotiates a similar agreement
with a city of 100, 000 or less population, on financial terms
more favorable than Rosemead's, it will match those terms for
Rosemead.
The franchise term is three years, renewable five times, for a
total of fifteen years. Since the franchise is nonexclusive,
should other companies request similar access in the future, the
Council is free to grant such requests.
RECOMMENDATION
It is recomemnded that the City Council approve the Franchise
Agreement with Metricom Inc.
FGT:js
Agenda/040897 (1)
4
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�� 980 University Avenue
ec®m Los Gatos, CA 95030
Office of Right-of-Way Legal Counsel
Writer's Direct Number:(408)399-8114
January 10, 1997
'Via (Airborne &rpress
CITY OF ROSEMEAD
Attn: Mr. Don Wagner, Assistant City Manager
8838 East Valley Boulevard
Rosemead, CA 91770
re: Proposed Attachment Permit Agreement between Metricom, Inc. and the City of
Rosemead, California
Dear Mr. Wager:
Enclosed please find a copy of the above-referenced Attachment Permit
Agreement, which we have drafted in accordance with our understanding of the
business terms agreed between the City and Joe Milone and hereby transmit to you at
the request of Cary S. Reisman, Esq. on behalf of METRICOM, INC. If the agreement is
acceptable, please cause both counterparts which have been forwarded to Mr. Reisman
to be executed as required by applicable ordinances and return both to this office. One
fully-executed counterpart will be promptly returned to the City.
Thank you for your prompt and courteous attention to this matter. If you have
any questions, please do not hesitate to call me at(408) 399-8114 or (510) 845-9681.
Very truly yours,
t*-44.—. c )(• ,...e..te0/1.11
Robert L. Delsman, Right-of-Way Legal Counsel
enclosure
cc: Bill Stephens
Joe Milone y
2950 L 1 $ (j
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Telephone: FAX:
408.399.8200 408.354.1024
�t. 980 University Avenue
• W;, Metncom' Los Gatos, CA 95030
Office of Right-of-Way Counsel
Writer's Direct Number: (408)399-8114
January 6, 1997
airborne £ press
WALLIN,KRESS, REISMAN &KRANITZ
Attn: Cary S. Reisman,Esq.
2800-28th Street, Suite 315
Santa Monica, CA 90405-6205
re: Franchise Agreement between Metricom, Inc. and the City of Rosemead,
California
Dear Cary:
Enclosed please find two (2) counterparts of the above-referenced franchise
agreement, which we have revised in accordance with our discussion last week. Since
the only change was at §4.1, we have not enclosed a redline. Please advise me at your
earliest convenience if you would like us to assist in drafting the franchise ordinance in
accordance with the form we have supplied to you for review.
If the draft is acceptable, please cause both counterparts to be executed by the
City and returned to this office. One (1) fully-executed counterpart will be returned to
the City promptly.
Thank you for your prompt and courteous attention to this matter. If you have
any questions, please do not hesitate to call me at (408) 399-8114 or (510) 845-9681.
Very truly yours,
•
•
•
R -rt L. Delsman, Right-of-Way Legal Counsel
enclosures
cc: Bill Stephens
•
Joe Milone
2950
Telephone: FAX:
408.399.8200 408.354.7024
a .
ROSEMEAD
ATTACHMENT PERMIT AGREEMENT
THIS ATTACHMENT PERMIT AGREEMENT (the "Permit") is dated as of December 9,
1996, and entered into by and between the CITY OF ROSEMEAD, a California municipal
corporation(the"City"),and METRICOM,INC., a Delaware corporation("Metricom").
RECITALS
A. 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 of Way within the limits of the City.
B. Metricom wishes to attach, install, operate, and maintain a wireless digital
communications radio network on facilities located in the Public Right of Way for purposes of
operating its RicochetTM wireless digital communications radio network(the"Network").
AGREEMENT
Now, THEREFORE, for good and valuable consideration, the parties agree to the following
covenants,terms, and conditions:
1 DEFINITIONS. The following definitions shall apply generally to the provisions of this
agreement:
1.1 Agency. "Agency" means any governmental or quasi-governmental agency other
than the City, including the FCC and the PUC (as such terms are defined in§§ 1.4 and 1.9
below).
1.2 City. "City"means the City of Rosemead.
1.3 Effective Date. "Effective Date"means the date on which Metricom hangs its first
Radio as provided below or, if earlier, the date on which this Permit is finally approved by
the City Council of Rosemead.
1.4. FCC. "FCC"means the Federal Communications Commission.
1.5 Fee. "Fee" means any assessment, license, charge, fee, imposition, tax (but
excluding any utility users' tax or franchise fees), or levy of general application to Persons
doing business in the City lawfully imposed by any governmental body.
Attachment Permit Agreement
City of Rosemead::Metricom,Inc.
page 1 of 14
rosemea3.doc[wkrkpa112296]
1.6 Gross Revenues. "Gross Revenues" means the gross dollar amount accrued on
Metricom's books for Services provided to its customers with billing addresses in the City,
excluding (i) the Franchise Fee, if any, payable pursuant to §4 et seq. below; (ii) local,
state, or federal taxes collected by Metricom that have been billed to the subscribers and
separately stated on subscribers' bills; and (iii) revenue uncollectable from subscribers
(i.e., bad debts) with billing addresses in the City that was previously included in Gross
Revenues.
1.7 Laws. "Laws" means any and all statutes, constitutions, ordinances, resolutions,
regulations, judicial decisions, rules, tariffs, administrative orders, certificates, orders, or
other requirements of the City or other governmental agency having joint or several
jurisdiction over the 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.
1.8 Metricom. "Metricom" means Metricom, Inc., a corporation duly organized and
existing under the laws of the State of Delaware, and its lawful successors, assigns, and
transferees.
1.9 PUG. "PUC"means the California Public Utilities Commission.
1.10 Permit. "Permit" means this nonexclusive Attachment Permit Agreement and may
also refer to the associated right to encroach upon the Public Right of Way conferred
hereunder.
1.11 Person. "Person"means an individual, a corporation, a limited liability company, a
general or limited partnership, a sole proprietorship, a joint venture, a business trust, or
any other form of business entity or association.
1.12 Provision. "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.
1.13 Public Right of Way. "Public Right of Way" means in, upon, above, along,
across, and over the public streets, roads, sidewalks, lanes, courts, ways, alleys,
boulevards, and places, including all public utility easements and public service easements
as the same now or may hereafter exist that are under the jurisdiction of the City. This
term shall not include any property owned by any Person or Agency other than the City,
except as provided by applicable Laws or pursuant to an agreement between the City and
any such Person or Agency.
1.14 Radio Month. "Radio Month" means a calendar month during which a Radio
occupies space on a City-owned pole or other City-owned property, even if such
occupancy is less than the entire month.
Attachment Permit Agreement
City of Rosemead::Metricom,Inc.
page 2 of 14
rosemea3.doc[wkrkpa1122961
1.15 Radio. "Radio" means the radio equipment, whether referred to singly or
collectively, to be installed and operated by Metricom hereunder and more particularly
described in Exhibit A attached hereto.
1.16 Ricocheirm "RicochetTM" or "RicochetTM MCDN" means RicochetTM
MicroCellular Digital Network, a wireless, microcellular digital radio communications
network owned and operated by Metricom.
1.17 Services. "Services" means the wireless digital communications services provided
through Ricochet by Metricom to subscribers with billing addresses within the City.
2 TERM. The term of this Permit shall commence on the Effective Date and shall expire on
the date which completes three (3) years after the Effective Date, unless it is earlier terminated by
either party in accordance with the provisions herein. The term of this Permit shall be renewed
automatically for four (4) successive terms of three (3) years each on the same terms and
conditions as set forth herein, except that the Annual Fee shall be subject to adjustment as
provided in §§4.2 and 4.2.1 below, unless either Metricom or the City notifies the other party of
its intention not to renew not less than thirty (30) calendar days prior to commencement of the
relevant renewal term.
3 SCOPE OF PERMIT. 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 applicable Laws to use any and all parts of the Public
Right of Way exclusively or concurrently with any other Person or Persons and shall be further
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 grant, convey, create, or vest a perpetual real property interest in land in Metricom,
including any fee, leasehold interest, or easement.
3.1 Attachment to City-Owned Property. The City hereby authorizes 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. In exchange for such authorization,
Metricom agrees, if requested by the City, to utilize City-owned poles or other
City-owned property in preference to third-party-owned property for the attachment of
Radios wherever such attachment is at least equally functionally feasible and commercially
reasonable.
3.2 Attachment to Third-Party Property. Subject to obtaining the permission of the
owner(s) of the affected property, the City hereby authorizes and permits Metricom to
attach, install, operate, maintain, remove, reattach, reinstall, relocate, and replace such
number of Radios in or on poles or other structures owned by public utility companies,
including SCE, or other property owners located within the Public Right of Way as may
be permitted by the public utility company or property owner, as the case may be.
Metricom shall furnish to the city documentation of such permission from the individual
utility or property owner responsible.
Attachment Permit Agreement
City of Rosemead::Metricom,Inc.
page 3 of/4
rosemea3.doc[mkrkpal12296]
3.3 No Interference. Except as expressly permitted by applicable Laws or.this Permit
Metricom in the performance and exercise of its rights and obligations under this Permit
shall not interfere in any manner with the existence and operation of any and all public and
private rights-of-way, sanitary sewers, water mains, storm drains, gas mains, poles, wrial
and underground electrical and telephone wires, electroliers, cable television, and other
telecommunications, utility, or municipal property or functions, without the express
written approval of the owner or owners of the affected property or properties.
3.4 Compliance with Laws. Metricom shall comply with all applicable Laws in the
exercise and performance of its rights and obligations under this Permit.
3.4.1 Construction Permits. Any and all construction work performed
pursuant to the rights granted under this Permit, including the installation,
operation, maintenance, location, and attachment of the Radios in the
Public Right of Way, shall be subject to the prior review and approval of City by
means of submission of a permit application, payment of any applicable permitting
fees, and the City's ordinary administrative review, or as otherwise agreed between
the parties. Metricom agrees to apply for and obtain all appropriate permits
required by applicable Law prior to the commencement of any work of
construction in the Public Right of Way. The locations of Metricom's planned
initial installation of Radios shall be incorporated in Exhibit B attached to this
Permit. After the initial deployment of the Radios, new attachments, removals,
and relocations of Radios shall also be subject to the City's permitting process,
including the payment of any applicable fees. If the location of any Radio is
different from that applied for in the applicable permit, the location of such Radio
installed by Metricom or its designee shall be disclosed in writing to the City by
Metricom at least five (5) days prior to its installation or relocation or within ten
(10) days after its removal.
3.4.2 As-Built Drawings. Upon the completion of construction work,
Metricom promptly shall furnish to the City, in hard copy and in Metricom's
electronic format, suitable documentation showing the exact location of the Radios
in the Public Right of Way.
3.5 Modification of Service Voltage. The City reserves the right to modify the
service voltage delivered to or at any street light pole or utility pole on which a Radio may
be located. Metricom shall replace or modify any Radio that will be affected by such
voltage modifications upon reasonable advance notice as required by the City. The City
agrees to endeavor to provide not less than thirty (30) days' notice of voltage
modifications. In the event that Metricom fails to replace or modify any Radio within the
City's stated reasonable notice period before the voltage modification, the City may
disconnect any such Radio until Metricom performs and completes the necessary work
and advises City accordingly.
3.6 Annual Business License. Metricom agrees to obtain an annual City business
license prior to the Effective Date and maintain the same throughout the term of this
Permit.
Attachment Permit Agreement
City of Rosemead::Metricom,Inc.
page 4 of 14
rosemea3.doc[ivkrkpa112296)
4 FEES AND TAXES. Metricom shall be solely responsible for the payment of all lawful Fees
and utility charges in connection with the exercise of Metricom's rights under this Permit
including those set forth below.
4.1 Franchise Fee. Metricom shall pay to the City, on a quarterly basis, an amount
(the "Franchise Fee") equal to five percent (5%) of Metricom's Gross Revenues collected
during each preceding calendar quarter, to cover the City's expenses in administering this
Agreement and in payment for use of the City's right of way, which amount may be
collected from subscribers of the Services and shown separately on the customers'
monthly statements, and remitted to City as provided herein. The Franchise Fee shall be
due on or before the forty-fifth (45th) day after the end of each quarter of each calendar
year or fraction thereof. Within forty-five (45) days after the termination of this Permit,
the Franchise Fee shall be paid for the period which has elapsed since the end of the last
quarter for which the Franchise Fee has been paid. Metricom shall furnish to the City with
each payment of the Franchise Fee a statement, executed by an authorized officer of
Metricom or his or her designee, showing the amount of Gross Revenues for the period
covered by the payment. If Metricom fails to pay the entire or correct amount of the
Franchise Fee, Metricom shall pay the difference to the City or make such other
adjustment within fifteen (15) days of discovery of the error or determination of the
correct amount. Any overpayment to the City through error or otherwise shall be offset
against the next payment due from Metricom. Acceptance by the City of any payment due
under this section shall not be deemed to be a waiver by the City of any breach of this
Permit occurring prior thereto, nor shall the acceptance by the City of any such payments
preclude the City from later establishing that a larger amount was actually due or
collecting any balance due to the City.
4.1.1 Accounting and Audit. Metricom shall keep accurate books of account
at its principal office in Los Gatos or such other location of its choosing for the
purpose of determining the amounts due to the City under §4.1. The City may
inspect Metricom's books of account at any time during regular business hours on
five (5) days' prior written notice and may audit the books from time to time, but
in each case only to the extent necessary to confirm the accuracy of payments due
under §4.1 Metricom shall bear the cost of any such audit if such audit reveals an
underpayment to the City of more than five percent (5%) of the Franchise Fee
which was due to the City for such calendar year. Once each calendar year the
City may require an annual report from Metricom relating to its operations and
revenues within the City. City agrees to hold in confidence any nonpublic
information it learns from Metricom in accordance with applicable law.
4.2 Annual Fee. Metricom shall pay to the City an annual fee (the "Annual Fee") in
the amount of Sixty Dollars ($60.00) for the use of each City-owned pole or other
structure or piece of City-owned property upon which a Radio has been installed pursuant
to this Permit. The initial Annual Fee shall be due and payable not later than the date of
installation of the first Radio on City-owned poles or other City-owned property under
this Permit (the "Installation Date") and shall be computed based upon the number of
Radios Metricom estimates as of the Installation Date that it will install on City-owned
Attachment Permit Agreement
City of Rosemead::Metricom,Inc.
page 5 of 14
rosemea3.doc fwkrApa112296]
poles or other City-owned property during the succeeding twelve (12) months. . 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 poles or other City-owned property pursuant to this
Permit multiplied by the Annual Fee, adjusted for the Prior Year Adjustment, as described
immediately below. The Prior Year Adjustment shall either increase or decrease a
subsequent year's 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.
4.2.1 CPI Adjustment. At the commencement of each renewal teen, the
Annual Fee with respect to such term shall be adjusted effective January 1st of the
first year of such renewal term by a percentage amount equal to the percentage
change in the U.S. Department of Labor, Bureau of Labor Statistics, Consumer
Price Index of all items, Base 1982-1984, which occurred during the previous term
or renewal term, as the case may be, for the Los Angeles-Anaheim-Riverside
Consolidated Metropolitan Statistical Area.
4.3 RicochetTM Tradeout Option. Notwithstanding anything to the contrary in this
Permit, the City shall have the right to elect to receive one of the following tradeouts in
lieu of the amount of the Annual Fee specified in connection with each such tradeout
option:
(a) up to fifty(50) subscriptions to use Metricom's RicochetTM Services in
the City for so long as Metricom maintains Radios in use in the ratio
specified below of City-owned poles or other City-owned property
pursuant to this Permit. Such option may be exercised by City 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 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. Metricom will not be required to pay
the 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 provided 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 subscriptions shall be subject to Metricom's standard
RicochetTM Service terms and conditions. City shall be required to
purchase at its sole cost and expense any equipment and software required
to use the RicochetTM Service; or
(b) up to twenty (20) subscriptions to use Metricom's RicochetTM
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
Attachment Permit Agreement
City of Rosemead::Metricom,Inc.
page 6 of 14
rosemea3.doc[vkrkpa112296]
City-owned poles or other City-owned property pursuant to this Permit.
Such option may be exercised by City in increments of two (2)
subscriptions and two (2) modems in lieu of Annual Fees for five (5)
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 shall 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 conditions
packaged with the modems. City shall be required to return to Metricom
any equipment provided to City upon termination of any free subscriptions
in good condition, ordinary wear and tear excepted.
4.3.1 Timing of City's Election. City shall be required to make an election
under this §4.3 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 either the following one-year period or until a subsequent election is
made in accordance with the previous sentence.
4.3.2 License Restrictions. City shall use all subscriptions and equipment
provided pursuant to this §4.3 solely for its own use and shall not be entitled to
resell, distribute, or otherwise permit the use of the same by any other party.
4.4 Reimbursement of City's Expenses. Metricom shall reimburse the City at City's
standard rates for all reasonable expenses relating to the preparation, issuance, and
implementation of this Permit, promptly upon receipt of bills, paid invoices, and such other
documentation as Metricom shall reasonably require. The reimbursement provided for in
this §4.4 shall not replace or excuse Metricom from the payment of any applicable City
permit fee for work undertaken in connection with this Permit.
4.5 Potential Utility Users' Tax. Metricom acknowledges and agrees that the City
may require users of revenue-producing services such as the Services to pay a utility
users' tax ("Utility Tax") to the City pursuant to City's Municipal Code. If the City
determines that the Services are subject to the Utility Tax, Metricom agrees to collect the
tax from Service users and remit such tax to the City in accordance with City's Municipal
Code.
4.6 Most-Favored Nation Clause. Should Metricom after the parties' execution and
delivery of this Permit enter into an attachment permit agreement with another
municipality with a population of less than 100,000 in the Los Angeles Metropolitan
Statistical Area which agreement contains financial benefits for such municipality which
are substantially superior to those in this Permit, City shall have the right to require that
Metricom modify this Peiiiiit to incorporate the same or substantially similar superior
benefits.
Attachment Permit Agreement
City of Rosemead::Metricom,Inc.
page 7 of 14
rosemea3.doc[wkrkpa112296]
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5 REMOVAL AND RELOCATION OF RADIOS. Metricom understands and acknowledges that
City may require Metricom to relocate one or more of its Radios, and Metricom shall at City's
direction relocate such Radios at Metricom's sole cost and expense, whenever City reasonably
determines that the relocation is needed for any of the following purposes: (a) to facilitate or
accommodate the construction, completion, repair, relocation, or maintenance of a City project;
(b) because the Radio is interfering with or adversely affecting proper operation of City light
poles, traffic signals, or other City facilities or functions; 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 provision, City shall be entitled to remove or relocate the Radios at
Metricom's sole cost and expense, without further notice to Metricom. In any case of emergency,
the City shall have the right to remove any Radio at Metricom's expense and promptly thereafter
to notify Metricom of such removal.
5.1 Metricom Desires Relocation. 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 the terms and conditions of this Permit.
5.2 Discontinuation of Service. In the event that any Radio subject to this Permit is
abandoned and no longer placed in service for a sixty (60) days or more, Metricom
promptly shall notify the City, and the City, at its option, may require Metricom promptly
to remove the abandoned Radio(s) at Metricom's sole cost and expense within fifteen(15)
days following notice from the City or dedicate the same to the City. The City shall not
issue notice to Metricom that the City intends to exercise the option to require removal or
dedication of Radios, unless and until the City first gives fifteen (15) days' prior written
notice to Metricom to remove the Radios. If Metricom shall fail to remove the Radios as
required by the City, the City shall be entitled to remove the Radios at Metricom's sole
cost and expense. Metricom shall execute such documents of title as will convey all right,
title, and interest in the abandoned Radios, but in no other Metricom property, intellectual
or otherwise, to the City.
5.3 Damage to Right-of-Way. Whenever the removal or relocation of Radios is
required under this Permit, and such removal or relocation shall cause the Public
Right of Way to be damaged, Metricom, at its sole cost and expense, shall promptly repair
and return the Public Right of Way in which the Radios are located to a safe and
satisfactory condition to the satisfaction of the City's Director of Public Works. If
Metricom does not repair the site as just described, then the City shall have the option,
upon fifteen (15) days' prior written notice to Metricom, to perform or cause to be
performed such reasonable and necessary work on behalf of Metricom and to 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, Metricom
shall reimburse the City for such costs within thirty(30) days.
6 INDEMNIFICATION, WAIVER, AND BOND. Metricom agrees to indemnify, defend (with
counsel reasonably acceptable to the City), protect, and hold harmless the City, its council
members, officers, employees, and agents from and against any and all claims, demands, losses,
Attachment Permit Agreement
City of Rosemead::Metricom,Inc.
page 8of14
rosemea3.doc[wkrkpa112296]
•
damages, liabilities, fines, charges, penalties; administrative and judicial proceedings and orders,
judgements, remedial'actions of any kind, all costs and cleanup actions of any kind; and all costs
and expenses incurred in connection therewith, including reasonable attorney's fees and costs of .
defense (collectively,the "Losses") arising, directly or indirectly, in whole or in part, out.of the
activities or facilities described in this Permit, except to the extent arising from or caused by,the
negligence or willful misconduct of the City, its council members, officers, employees, agents, or
contractors.
6.1 Waiver of Breach. 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 Metricom.
6.2 Waiver of Claims. 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.
6.3 Limitation of City's Liability. The City shall be liable only for the cost of repair
to damaged Radios arising from the negligence or willful misconduct of City or its
employees or agents, 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 damages, losses, or liability arising from the issuance
or approval by the City of a permit to any third party or any interruption in Services.
6.4 Bond or Other Security. Prior to the commencement of any work under this
Permit, Metricom shall furnish or cause to be furnished to City a good and sufficient bond,
substantially in the form attached hereto as Exhibit C entitled Surety Bond, in the amount
of Five Thousand Dollars ($5,000), or such other comparable security instrument as may
be approved by the City's attorney or risk manager, securing the faithful performance by
Metricom of all of the work, construction, installation, and removals required to be
performed by Metricom under this Permit within the time periods set forth hereunder.
7 INSURANCE. Metricom shall obtain and maintain at all times during the term of this
Permit (including the period between the expiration hereof and Metricom's removal of its Radios
or other equipment from the Public Right of Way) comprehensive general liability insurance and
comprehensive automobile liability insurance protecting Metricom in an amount of not less than
Two Million Dollars ($2,000,000) per occurrence (combined single limit), including bodily injury
and property damage, and in an amount of not less than Two Million Dollars ($2,000,000)
aggregate for each personal injury liability, products-completed operations, and each accident.
Such insurance shall name the City, its council members, officers, employees, and agents as
additional insureds as respects any liability arising out of Metricom's performance of work under
this Permit. 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
Attachment Permit Agreement
City of Rosemead::Metricom,Inc.
page 9 of 14
rosemea3.doc[wkrkpa112296]
•
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.
7.1 Filing of Certificates and Endorsements. Prior to the commencement of any
work pursuant to this Permit, 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 all of the following:
(a) 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;
(b) A provision stating that thirty (30) days' prior notice of cancellation
is unqualified as to the acceptance of liability for failure to notify
the City; and
(c) A provision stating 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 certificate(s) of insurance with endorsements and notices, shall be mailed to the City at the
address specified in§ 8 below.
7.2 Workers' Compensation Insurance. Metricom shall obtain and maintain 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 shall furnish the City with a
certificate showing proof of such coverage.
7.3 Insurer Criteria. Any insurance provider of Metricom shall be admitted and
authorized to do business in California and shall be rated at least A:X in A.M. Best &
Company's Insurance Guide. Insurance certificates issued by non-admitted insurance
companies are not acceptable.
7.4 Severability of Interest. Prior to the execution of this Peniiit, any-deductibles or
self-insured retentions must be stated on the certificate(s) of insurance, which shall be sent
to and approved by the City. "Cross liability," "severability of interest," or "separation of
insureds" clauses shall be made a part of the comprehensive general liability and
comprehensive automobile liability policies.
Attachment Permit Agreement
City of Rosemead::Metricom,Inc.
page 10 of 14
rosemea3.doc Iwkrkpa112296J
• 7.5 Contractors' and Subcontractors' Insurance. Metricom shall require that all
contractors and subcontractors obtain insurance meeting the criteria set forth herein and
shall furnish to the City copies of all certificates evidencing such policies of insurance.
7.6 Insurance and Indemnification Obligation. Metricom's compliance with the
insurance requirements herein shall not excuse, replace, or otherwise affect Metricom's
duty to indemnify and defend the City pursuant to § 6 of this Permit.
8 NOTICES. All notices which shall or may be given pursuant to this Permit shall be in
writing and delivered personally or transmitted (a) through the United States mail, by registered
or certified mail, postage prepaid; (b) by means of prepaid overnight delivery service; or (c)by
facsimile transmission, if a hard copy of the same is followed by delivery through the U. S. mail or
by overnight delivery service as just described, addressed as follows:
if to the City:
CITY OF ROSEMEAD
Attn: City Manager
P.O. Box 399
Rosemead, CA 91770
if to Metricom:
METRICOM, INC.
Attn: Property Manager
980 University Avenue
Los Gatos; CA 95030
Notices shall be deemed given upon receipt in the case of personal delivery, 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 delivered in the
manner set forth above.
9 TERMINATION. This Permit may be terminated by eitherfparty upon forty five (45) days'
prior written notice to the other party upon a default of any material covenant or term hereof by
such other party, which default is not cured within forty-five (45) days of receipt of written notice
of default (or, 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 thereafter diligently to prosecute such
cure to completion), provided that the grace period for any monetary default shall be ten (10)
days from receipt of notice.. As used in this § 9, the'term default shall include, with respect to
Metricom's obligations hereunder, Metricom's failure (i) to comply with the restrictions
established in § 3, (ii) timely to pay any sums owing to the City under §4, and (iii) to maintain,
deploy, relocate, or remove its Radios as provided in§ 5 hereof
10 ASSIGNMENT. This Permit shall not be assigned by Metricom without the express written
consent of the City, which consent shall not be unreasonably withheld, conditioned, or delayed.
Any attempted assignment in violation of this § 10 shall be void. Notwithstanding the foregoing,
Attachment Permit Agreement
City of Rosemead::Metricom,Inc.
page II of 14
rosemea3.doc Iwkrkpal/2296]
the transfer of the rights and obligations of Metricom hereunder to a parent, subsidiary, or
financially viable affiliate of Metricom or to any successor-in-interest or entity acquiring fifty-one
percent (51%) or more of Metricom's outstanding voting stock or assets shall not be deemed an
assignment or transfer for the purposes of this Peiinut, provided that (i) any such transferee will
have a financial strength after the proposed transfer at least equal to that of Metricom prior to the
transfer, (ii) any such transferee assumes all the obligations of Metricom hereunder, and
(iii) Metricom shall not be released from the obligations of this Permit by virtue of such transfer.
If such criteria are satisfied, it shall not be deemed reasonable for the City to withhold its consent
to the proposed transfer, unless the proposed transferee has a record of performance under similar.
agreements with governmental entities which is unacceptable to the City under a reasonable
standard of evaluation or is otherwise not responsible. Lack of prior specific experience in
administering a system providing the Services described in this Permit shall not, by itself, be
deemed a reasonable basis for refusing or conditioning the City's consent. Metricom shall give to
the City thirty (30) days' prior written notice of any transfer for which notice is required
hereunder, together with sufficient documentation and data to permit the City to evaluate
Metricom's compliance with the criteria herein set forth. In the case of any proposed transfer for
which the City's consent is required hereunder, Metricom agrees to reimburse the City for its
reasonable expenses incurred in reviewing such transfer proposal.
11 MISCELLANEOUS PROVISIONS. The provisions which follow shall apply generally to the
obligations of the parties under this Permit.
11.1 Nonexclusive Use. Metricom understands that this Permit does not provide
Metricom with exclusive use of any City-owned poles or property and that City shall have
the right to permit other providers of telecommunications services to install equipment or
devices in the Public Right of Way; however, City shall endeavor promptly to notify
Metricom of the receipt of a proposal for the installation of communications equipment or
devices in the Public Right of Way, regardless of whether a license is required by the FCC
for the operation thereof.
11.2 Amendment of Permit. This Permit may not be amended except pursuant to a
written instrument signed by both parties .
11.3 Severability of Provisions. If any one 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 Permit and shall in no way affect the validity of the remaining
portions of this Permit.
11.4 All-Hours Contact. Metricom shall be available to the staff employees of any
City department having jurisdiction over Metricom's activities twenty-four (24) hours a
day, seven (7) days a week, regarding problems or complaints resulting from the
attachment, installation, operation, maintenance, or removal of the Radios. The City may
contact by telephone the network control center operator at telephone number
(800) 556-6123 regarding such problems or complaints.
Attachment Permit Agreement
City of Rosemead::Metricom,Inc.
page 12 of 14
rosemea3.doc[wkrkpa112296]
• 11.5 Governing Law; Jurisdiction. This Permit shall be governed and construed by
and in accordance with the laws of the State of California. In the event that suit is brought
by a party to this Permit, the parties agree that trial of such action shall be vested
exclusively in the state courts of California, County of Los Angeles, or in the United
States District Court, Central District of California in the County of Los Angeles.
11.6 Attorneys' Fees. Should any dispute arising out of this Permit lead to litigation,
the prevailing party shall be entitled to recover its costs of suit, including reasonable
attorneys' fees.
11.7 Exhibits. All exhibits referred to in this Permit 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.
11.8 Successors and Assigns. This Permit is binding upon the successors and assigns
of the parties hereto.
11.9 Rules, Regulations, and Specifications. Metricom acknowledges that the City
may develop rules, regulations, and specifications, including a general ordinance or other
regulation governing wireless telecommunications in the City (the "Regulations"), for the
attachment, installation, and removal of Radios and any similar purpose devices and that
such Regulations, when finalized, shall govern Metricom's activities hereunder as if they
had been in effect at the time this Permit was executed by the City; provided, however,
that in no event shall such Regulations materially interfere with or affect Metricom's right
to install Radios or Metricom's ability to transmit or receive radio signals from Radios
installed pursuant to and in accordance with this Permit or materially increase Metricom's
obligations hereunder.
11.10 Advice of Displacement. To the extent the City has actual knowledge thereof,
the City will attempt to inform Metricom of the displacement of any pole on which any
Radio is located.
11.11 Consent Criteria. In any case where the approval or consent of one party hereto
is required, requested or otherwise to be given under this Permit, such party shall not
unreasonably delay, condition, or withhold its consideration of and determination upon
approval or consent.
11.12 Entire Agreement. This Permit contains the entire understanding between the
parties with respect to the subject matter herein. There are no representations,
agreements, or understandings (whether oral or written) between or among the parties
relating to the subject matter of this Permit which are not fully expressed herein.
Attachment Permit Agreement
City of Rosemead::Metricom,Inc.
page 13 of 14
rosemea3.doc Iwkrkpa1122961
IN WITNESS WHEREOF the parties have executed this Permit as of the date first above
written.
City: CITY OF ROSEMEAD, a California municipal corporation
By:
[name typed]
Its:
Metricom: METRICOM,INC., a Delaware corporation
By:
Kirk Wampler,Director of Right of Way
Attachment Permit Agreement
City of Rosemead::Metricom,Inc.
page 19 of 14
rosemea3.doc[wkrkpal12296)
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•
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Taos Ceorvs. CA 95030
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EXHIBIT A-2
• [EXHIBIT B]
[PROPOSED RADIO LOCATIONS]
PROPOSED LOCATIONS TO BE PROVIDED
AFTER REVIEW OF STREET LIGHT MAPS
AND PRIOR TO DEPLOYMENT
[EXHIBIT Cl
[FORM OF SURETY BOND]
Bond Number:
SURETY BOND
KNOW ALL MEN BY THESE PRESENTS:
That METRICOM, INC. as Principal, and , incorporated
under the laws of the State of , and authorized to execute bonds and
undertakings as sole surety, are held and firmly bound unto , as
Obligee, in the sum of ($ ); for the payment thereof,
well truly to be made, said Principal and Surety bind themselves, their administrators, successors
and assigns,jointly and severally, firmly by these present.
The condition of the foregoing obligation is such that:
WHEREAS, the above bounden Principal is about to enter into a certain agreement with the
Obligee for the following:
the award of which said agreement was made to the Principal by the Obligee, on
NOW THEREFORE, if the Principal shall well, truly and faithfully perform its duties, all
the undertakings, covenants, terms, conditions, and provisions of said agreement during the
original term thereof; and any extensions thereof which may be granted by the Obligee, with or
without notice to the Surety, and if he shall satisfy all claims and demands incurred under such
agreement, and shall fully indemnify and save harmless the Obligee from all costs and damages
which it may suffer by reason of failure to do so, and shall reimburse and repay the Obligee all
outlay and expenses which the Obligee may incur in making good any default, then this obligation
shall be void; otherwise to remain in full force and effect.
PROVIDED, FURTHER, that the said Surety, for value received, hereby stipulates and
agrees that no change, extension of time, alteration or addition to the terms of the agreement or to
the work to be performed thereunder or the specifications accompanying the same shall in any
way affect its obligation on this bond, and it does hereby waive notice of any such change,
extension of time, alteration or addition to the terms of the agreement or to the work or to the
specifications.
PROVIDED, HOWEVER,this bond issued subject to the following express conditions:
1. This bond shall be deemed continuous in form and shall remain in full force and effect until
canceled under Section , after which all liability ceases .except as to any liability
incurred or accrued prior to the date of such cancellation.
2. The aggregate liability of the Surety hereunder on all claims whatsoever shall not exceed
the penal sum of this bond in any event.
3. The surety reserves the right to withdraw as surety from this bond except .as to any
liability incurred or accrued, and may do so upon giving the Obligee sixty (60) days
written notice.
SIGNED AND SEALED this day of , 19 ✓
PRINCIPAL SURETY
(Type Company Name)
By: By:
Title: Title:
By: Address:
Telephone:
(Affix Corporate Seals)
(Attach Acknowledgments of both Principal and Surety signatures)
•
F. Metricom®
SOUTHERN CALIFORNIA
CITY APPROVALS
Scheduled Hearings by Date: Approved Cities, Alphabetically:
1/27/97 Los Alamitos 10/16/96 Agoura Hills
1/28/97 Maywood 12/10/96 Anaheim
1/28/97 Newport Beach 10/25/96 Arcadia
2/3/97 San Fernando 12/2/96 Azusa
2/3/97 Bell 12/9/96 Bellflower
2/4/97 Redondo Beach 7/24/96 Calabasas
2/5/97 Westlake Village 9/3/96 Carson
2/11/97 Gardena 10/24/96 Cerritos
2/11/97 Rolling Hills 12/9/96 Costa Mesa
2/11/97 Glendora 11/19/96 Covina
34017 Placentia 9/3/96 Cudahy
2/18/97 Manhattan Beach 9/9/96 Cypress
2/18/97 Rosemead 8/27/96 El Monte
3/11/97 Paramount 1/13/97 Hawthorne
3/24/97 Pomona 8/3/96 Hermosa Beach
12/16/96 Huntington Park
7/1/96 Industry
9/10/96 Inglewood
9/24/96 Irvine
9/16/96 La Canada/Flintridge
10/22/96 La Puente
•
12/3/96 Laguna Niguel
11/15/96 Los Angeles (City)
11/25/96 Mission Viejo
9/24/96 Orange (City)
1/7/97 Rancho Palos Verdes
1/19/97 San Dimas
8/5/96 Santa Ana
12/9/96 Seal Beach
6/25/96 Westminister
6196
Printed on 1/23/97 Page 1
•
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