Ordinance No. 956ORDINANCE NO. 956
AN ORDINANCE BY THE CITY COUNCIL OF THE
CITY OF CYPRESS, CALIFORNIA, GRANTING TO
METRICOM, INC., ITS SUCCESSORS AND ASSIGNS,
A NONEXCLUSIVE FRANCHISE TO ATTACH,
INSTALL, OPERATE AND MAINTAIN A WIRELESS
DIGITAL COMMUNICATIONS RADIO NETWORK
IN, ON, OVER, UPON, ALONG AND ACROSS THE
PUBLIC RIGHT -OF -WAY IN THE CITY OF
CYPRESS, CALIFORNIA) AS THE SAME NOW OR
MAY HEREAFTER EXIST, PRESCRIBING CERTAIN
RIGHTS, DUTIES, TERMS AND CONDITIONS IN
RESPECT THERETO.
WHEREAS, Metricom Inc., has applied to the City of Cypress for a non - exclusive
franchise for the attachment, installation, operation, and maintenance of a wireless digital
communications radio network in, on, upon, along and across certain public rights -of -way and
easements within the City of Cypress; and
WHEREAS, it has been found desirable for the welfare of the City of Cypress that
such a non - exclusive radio network franchise be issued to Metricom Inc., by enactment of an
ordinance;
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE
CITY OF CYPRESS, CALIFORNIA, as follows:
1. Definitions.
1.1 "Agency" means any governmental agency or quasi - governmental agency other
than the City, including the FCC and the PUC.
1.2 "City" means the City of Cypress.
1.3 "Effective Date" means the date that Metricom files written acceptance of this
Franchise with City's City Clerk.
1.4 "FCC" means the Federal Communications Commission.
1.5 "Fee" means any assessment, license, charge, fee, imposition, tax (but excluding
any utility users' tax or franchise fee), or levy lawfully imposed by any governmental body.
1.6 "Franchise" means the terms under which Metricom is permitted to attach, install,
operate, maintain, remove, reattach, reinstall, relocate, and replace the Radios in the Public Right
of Way as provided below.
1.7 "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 required by Section 4.3 below, (ii) local, state, or federal taxes collected by Metricom that
have been billed to the subscriber, separately stated on such bill, and paid to such local, state or
federal agency, and (iii) revenue uncollectible from subscribers (i.e., bad debts) with billing
addresses in the City that were previously included in Gross Revenues.
1.8 "Law" or "Laws" means any and all judicial decisions, statutes, constitutions,
ordinances, resolutions, regulations, rules, orders, or other requirements of the City in effect
either at the time of adoption of this Franchise or at any time during the presence of Radios in the
Public Right -of -Way.
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1.9 "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.
1.10 "PUC" means the California Public Utilities Commission.
1.11 "Person" means an individual, a corporation, a limited liability company, a general
or limited partnership, a sole proprietorship, a joint venture, a business trust, and any other form
of business association.
1.12 "Provision" means any agreement, clause, condition, covenant, qualification,
restriction, reservation, term, or other stipulation in this Franchise that defines or otherwise
controls, establishes, or limits the performance required or permitted by either party to this
Franchise. All Provisions, whether covenants or conditions, shall be deemed to be both covenants
and conditions.
1.13 "Public Right -of -Way" means in, upon, above, along, across, under, and over the
public streets, roads, lanes, courts, ways, alleys, boulevards, and places, including, without
limitation, all public utility easements and public service easements, as the same now or may
thereafter exist that are under the jurisdiction of the City. This term shall not include any property
owned by any Person or Agency other than the City except as provided by applicable Laws or
pursuant to an agreement between the City and any such Person or Agency.
1.14 "Radios" means that radio equipment to be installed and operated by Metricom
hereunder.
1.15 "Ricochet" means Ricochet MicroCellular Digital Network, a wireless digital
communications microcellular radio network owned and operated by Metricom.
1.16 "Services" means the wireless digital communications services provided through
Ricochet by Metricom.
2. TERM.
This Franchise shall be for a term of five (5) years, unless it is earlier terminated by either
party in accordance with the provisions herein, and shall commence on the "Effective Date ". This
Franchise shall automatically be renewed for two (2) successive five (5) year terms on the same
terms and conditions as set forth herein unless either party notifies the other of its intention not to
renew at least sixty (60) days prior to commencement of a succeeding renewal term.
3. SCOPE OF FRANCHISE.
3.1 Any and all rights expressly granted to Metricom under this Franchise, which shall
be exercised at Metricom's sole cost and expense, shall be subject to the prior and continuing
right of the City under applicable Laws to use any and all parts of the Public Right -of -Way, and
further shall be subject to all deeds, easements, dedications, conditions, covenants, restrictions,
encumbrances and claims of title which may affect the Public Right -of -Way. Nothing in this
Franchise shall be deemed to grant, convey, create, or vest a perpetual real property interest in
land in Metricom, including any fee or leasehold interest, or easement.
3.2 The City authorizes and permits Metricom to use the Public Right -of -Way to
attach, install, operate, maintain, remove, reattach, reinstall, relocate, and replace such number of
Radios in or on street light poles, power poles or other property owned by public utility
companies or other property owners located within the Public Right -of -Way as may be permitted
by the public utility company or property owner, as the case may be. Metricom shall furnish to
the city documentation of said permission from the individual utility /property owner responsible
before Metricom performs any of the activities described above with respect to its Radios.
3.3 Except as permitted by applicable Laws or this Franchise, in the performance and
exercise of its rights and obligations under this Franchise, Metricom shall not interfere in any
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manner with the existence and operation of any and all public rights -of -way, sanitary sewers,
water mains, storm drains, gas mains, poles, aerial and underground electric and telephone wires,
electroliers, cable television, and other telecommunications, utility, and municipal property
without the express written approval of the owner or owners of the affected property or
properties.
3.4 Metricom shall comply with all applicable Laws in the exercise and performance of
its rights and obligations under this Franchise.
3.5 The City further reserves the right to modify the service voltage delivered to or at
any street light pole, utility pole or other property on which a Radio may be located. Metricom
shall replace or modify any Radio that will be affected by such voltage modifications within thirty
(30) days of receiving notice of voltage modifications. In the event that Metricom fails to replace
or modify any Radio within the thirty -day notice period before the voltage modification, the City
may disconnect any such Radio until Metricom performs and completes the necessary work and
advises the City accordingly.
4. FEES AND TAXES.
4.1 Metricom acknowledges and agrees that the City may require users of revenue -
producing services such as the Services to pay a utility users' tax ( "Utility Tax ") to the City
pursuant to City's Municipal Code. If the Services are subject to the Utility Tax, Metricom
agrees to collect the tax from Service users and remit such tax to the City in accordance with
City's Municipal Code.
4.2 Metricom shall be solely responsible for the payment of all lawful Fees and utility
charges in connection with the exercise of Metricom's right, title, and interest in, and the
attachment, installation, operation, and maintenance of Radios, and the rendering of Services
under this Franchise.
4.3 As compensation for this Franchise, Metricom shall pay to the City, on an annual basis,
an amount equal to five percent (5 %) of Metricom's Gross Revenues which amount will be collected
from subscribers of the Services and remitted to City as provided herein. Metricom shall be entitled to
indicate on its bills to its subscribers the amount of such bill represented by the foregoing franchise fee.
The compensation required by this section shall be due on or before the 45th day after the end of each
calendar year, or fraction thereof. Within 45 days after the termination of this Franchise, compensation
shall be paid for the period elapsing since the end of the last calendar year for which compensation has
been paid. Metricom shall furnish to the City with each payment of compensation required by this
section a statement, executed by an authorized officer of Metricom or his or her designee, showing the
amount of Gross Revenues for the period covered by the payment. If Metricom discovers that it has
failed to pay the entire or correct amount of compensation due, the City shall be paid by Metricom
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 Franchise occurring prior thereto, nor shall the acceptance by
the City of any such payments preclude the City from later establishing that a larger amount was
actually due, or from collecting any balance due to the City.
4.4 Metricom shall keep accurate books of account at its principal office in Los Gatos
or such other location of its choosing for the purpose of determining the amounts due to the City
under Section 4.3. The City may inspect Nletricom's books of account at any time during regular
business hours on five (5) days' prior written notice and may audit the books from time to time at
City's sole expense, but in each case only to the extent necessary to confirm the accuracy of
payments due under Section 4.3. The City may require annual reports from Metricom relating to
its operations and revenues within the City. City agrees to hold in confidence any non - public
information it learns from Metricom in accordance with applicable law.
4.5 Metricom shall reimburse the City at City's standard rates for all reasonable
expenses relating to the preparation, issuance, implementation and administration of this
Franchise, not to exceed Two Thousand Dollars ($2,000) in the aggregate.
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5. REMOVAL AND RELOCATION OF RADIOS.
5.1 Metricom understands and acknowledges that City may require Metricom to relocate,
and Metricom shall, at City's direction, relocate upon fifteen (15) business days' prior written notice in
situations described in subsection (a) below, and immediately in situations described in subsections (b)
and (c) below, at Metricom's sole cost and expense, a Radio whenever City reasonably determines that
the relocation is needed: (a) to facilitate or accommodate the construction, completion, repair,
relocation or maintenance of a City project, (b) because the Radio is interfering with or adversely
affecting proper operation of City light poles, traffic signals or other City facilities, or (c) to protect or
preserve the public health, safety, or welfare. 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 Radios at Metricom's sole cost and expense.
5.2 In the event that any Radio subject to this Franchise is abandoned and no longer
placed in service for a period -of six (6) months or more, Metricom promptly shall notify the City,
and the City, at its option, may require Metricom to promptly remove the abandoned Radio(s) at
Metricom's sole cost and expense or dedicate the same to the City. The City shall not issue notice
to Metricom that the City intends to exercise the option to require removal or dedication of
Radios, unless and until the City first gives fifteen (15) days' prior written notice to Metricom to
remove the Radios. If Metricom shall fail to remove the Radios as required by the City, the City
shall be entitled to remove the Radios at Metricom's sole cost and expense. Metricom shall
execute such documents of title as will convey all right, title, and interest in the abandoned
Radios, but in no other Metricom property, intellectual or otherwise, to the City.
5.3 Whenever the removal or relocation of Radios is required under this Franchise, and
such removal or relocation shall cause the Public Right -of -Way to be damaged, Metricom, at its
sole cost and expense, promptly shall repair and return the Public Right -of -Way, in which the
Radios are located, to a safe and satisfactory condition in accordance with applicable Laws,
normal wear and tear excepted. If Metricom does not repair the site as 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 the actual costs incurred by the City. Upon the
receipt of a demand for payment by the City, Metricom shall reimburse the City for such costs.
6. CONSTRUCTION PERMIT.
6.1 In the event that the attachment, installation, operation, or maintenance of Radios
shall require any construction work in the Public Right -of -Way, Metricom shall apply for the
appropriate street opening and other permits required by Law.
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. INDEMNIFICATION 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, judgments, remedial actions of any kind, and
all costs and cleanup actions of any kind, all costs and expenses incurred in connection therewith,
including, without limitation, reasonable attorney's fees and costs of defense (collectively, the
"Losses ") arising, directly or indirectly, in whole or in part, out of the activities or facilities
described in this Franchise, except to the extent arising from or caused by the sole or gross
negligence or willful misconduct of the City, its council members, officers, employees, agents or
contractors.
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7.2 The waiver by the City of any breach or violation of any Provision of this
Franchise by Metricom shall not be deemed to be a waiver or a continuing waiver by the City of
any subsequent breach or violation of the same or any other Provision of this Franchise by
Metricom.
7.3 Metricom waives any and all claims, demands, causes of action, and rights it may
assert against the City on account of any loss, damage, or injury to any Radio or any loss or
degradation of the Services as a result of a sudden or gradual loss or change of electrical power
caused by, among others, an Act of God, an event or occurrence which is beyond the reasonable
control of the City, a power outage, a lightning strike, or occasioned by the installation,
maintenance, replacement or relocation of any City -owned facility to which such Radio is
attached.
7.4 The City shall be liable only for the cost of repair to damaged Radios arising from
the sole or gross 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, without
limitation, damages, losses, or liability arising from the issuance or approval by the City of a
permit to any third party or any interruption in Services.
8. INSURANCE.
8.1 Metricom shall obtain and maintain at all times during the term of this Franchise
comprehensive general liability insurance and comprehensive automotive liability insurance
protecting Metricom in an amount of not less than one million dollars ($1,000,000) per
occurrence (combined single limit), including bodily injury and property damage, and not less than
one million dollars ($1,000,000) aggregate, for each personal injury liability, products - completed
operations, and each accident. Such insurance shall name the City, its council members, officers,
employees, agents, and contractors as additional insureds as respects any liability arising out of
Metricom's performance of work under this Franchise, or suitable additional insured endorsement
acceptable to the City. Coverage shall be provided in accordance with the limits specified and the
Provisions indicated herein. Claims -made policies are not acceptable. When an umbrella or
excess coverage is in effect, coverage shall be provided in following form. Such insurance shall
not be canceled or materially altered to reduce coverage until the City has received at least thirty
(30) days advance written notice of such cancellation or change. Metricom shall be responsible for
notifying the City of such change or cancellation.
8.2 Metricom shall file the required original certificate(s) of insurance with
endorsements with the City, subject to the City's prior approval, which shall clearly state:
8.2.1 Policy number; name of insurance company; name, address and telephone
number of the agent or authorized representative; name, address and telephone number of
insured; project name and address; policy expiration date; and specific coverage amounts;
8.2.2 That thirty (30) days prior notice of cancellation is unqualified as to the
acceptance of liability for failure to notify the City; and
8.2.3 That Metricom's insurance is primary as respects any other valid or
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:
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THE CITY OF CYPRESS
Attn: Lillian Haina, City Clerk
5275 Orange Avenue
Cypress, CA 90630
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1 2 3
8.3 Metricom shall obtain and maintain at all times during the term of this Franchise
statutory workers' compensation and employer's liability insurance in an amount not less than five
hundred thousand dollars ($500,000) or such other amounts as required by California law, and
furnish the City with a certificate showing proof of such coverage.
8.4 Any insurance provider of Metricom shall be admitted and authorized to do
business in California and shall be rated at least A:X in A. M. Best and Company's Insurance
Guide. Insurance certificates issued by non - admitted insurance companies are riot acceptable.
8.5 Prior to the execution of this Franchise, any - deductibles or self - insured retentions
must be stated on the certificate(s) of insurance, which shall be sent to and approved by the City.
"Cross liability ", "severability of interest" or "separation of insureds" clauses shall be made a part
of the comprehensive general liability and comprehensive automobile liability policies.
9. NOTICES.
All notices which shall or may be given pursuant to this Franchise 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 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, as follows:
City
Metricom
THE CITY OF CYPRESS
Attn: Lillian Haina, City Clerk
5275 Orange Avenue
Cypress, CA 90630
Metricom, Inc.
980 University Avenue
Los Gatos, CA 95030
Attn: Property Manager
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 in the manner set
forth above.
10. TERNIINATION.
This Franchise 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 term hereof by the 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 to thereafter diligently prosecute such
cure to completion), provided that the grace period for any monetary default is ten (10) days from
receipt of notice.
11. MISCELLANEOUS PROVISIONS.
11.1 This Franchise shall not be assigned by Metricom without the express written
consent of the City, which consent shall not be unreasonably withheld. Any attempted assignment
in violation of this Section shall be void. The transfer of the rights and obligations of Metricom to
a parent, subsidiary, or other affiliate of Metricom, or to any successor -in- interest or entity
acquiring fifty -one percent (51 %) or more of Metricom's stock or assets, shall not be deemed an
assignment. Metricom shall give to the City thirty (30) days' prior written notice of any such
transfer.
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11.2 City is informed by Metricom and therefore 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 Agreement does not provide Metricom with exclusive
use of any City 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 agrees to notify Metricom of the pending issuance of a permit or other
authorization for the installation of communications equipment or devices in the Public Right of
Way, irrespective of whether a license is required by the FCC for the operation thereof. In
addition, City agrees to advise such other providers of telecommunications services of the
presence or planned deployment of the Radios in the Public Right of Way. The foregoing is
intended as a courtesy only and City's failure to provide any notice is not intended to create, nor
shall it result in, any liability should City fail to provide the referenced notices
11.3 This Franchise contains the entire understanding between the parties with respect
to the subject matter herein. There are no representations, agreements or understandings
(whether oral or written) between or among the parties relating to the subject matter of this
Franchise which are not fully expressed herein.
11.4 This Franchise may not be amended except pursuant to a written instrument signed
by both parties .
11.5 If any one or more of the Provisions of this Franchise is for any reason held illegal,
invalid, or unconstitutional by the decision of any court of competent jurisdiction, such decision shall
not affect the legality, validity, or constitutionality of the remaining portions hereof. The Council
hereby declares that it would have passed this Franchise and each Provision hereof irrespective of the
fact that any one or more Provisions be declared illegal, invalid, or unconstitutional.
11.6 Metricom shall be available to the staff employees of any City department having
jurisdiction over Metricom's activities 24 hours a day, 7 days a week, regarding problems or
complaints resulting from the attachment, installation, operation, maintenance, or removal of the
Radios. The City may contact by telephone the network control center operator at telephone
number (800) 556 -6123 regarding such problems or complaints.
11.7 This Franchise shall be governed and construed by and in accordance with the laws
of the State of California. In the event that suit is brought by a party to this Franchise, the parties
agree that trial of such action shall be vested exclusively in the state courts of California, County
of Orange, or in the United States District Court, Southern District of California, in the County of
Orange.
11.8 All exhibits referred to in this Franchise and any addenda, attachments, and
schedules which may, from time to time, be referred to in any duly executed amendment to this
Franchise are by such reference incorporated in this Franchise and shall be deemed a part of this
Franchise.
11.9 This Franchise is binding upon the successors and assigns of the parties hereto.
11.10 Metricom acknowledges that the City may develop rules, regulations, and
specifications for the attachment, installation, and removal of Radios and any similar purpose
radios on the City -owned facilities, including poles, and such rules, regulations, and specifications,
and when finalized, shall govern Metricom's activities hereunder as if they were in effect at the
time this Franchise was executed by the City; provided, however, that in no event shall such rules,
regulations or specifications materially interfere with or affect Metricom's right to install Radios,
or Metricom's ability to transmit or receive radio signals from Radios installed, pursuant to and in
accordance with this Franchise.
11.11 To the extent the City has actual knowledge thereof, the City will attempt to
inform Metricom of the displacement of any City -owned pole or other property on which any
Radio is located.
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11.12 In any case where the approval or consent of one party hereto is required,
requested or otherwise to be given under this Franchise, such party shall not unreasonably delay
or withhold its approval or consent.
11.13 This Franchise shall not become effective until written acceptance thereof has been
filed by Metricom with City's City Clerk. By accepting this Franchise, Metricom covenants and
agrees to perform and be bound by each and all of the terms and conditions imposed by the
Charter and Code of the City and this Franchise. Acceptance by Metricom must occur within
ninety (90) days of the enactment of this Franchise by ordinance or else the Franchise is void.
FIRST READ at a regular meeting of the City Council of said City held on the 26th
day of August , 1996, and finally adopted and ordered posted at a regular meeting held on
the 9th day of September 1996.
MAYOR OF THE CITY OF CYPRESS
ATTEST:
CITY CLERK OF THE CITY OF CYPRESS
STATE OF CALIFORNIA )
COUNTY OF ORANGE )
ss
I, LILLIAN M. HAINA, City Clerk of the City of Cypress, California, DO HEREBY
CERTIFY that the foregoing Ordiance was duly adopted at a regular meeting of the City Council of
the City of Cypress held on the 9th day of September , 1996, by the following
roll call vote:
AYES: 5 COUNCIL MEMBERS: Age, Carroll, Jones,
Kerry and Bowman
NOES: 0 COUNCIL MEMBERS: None
ABSENT: 0 COUNCIL MEMBERS None
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CITY CLERK OF THE CITY OF CYPRESS
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Err A
RADIO LOCATIONS
PROPOSED LOCATIONS TO BE PROVIDED
AFTER REVIEW OF STREET LIGHT MAPS
AND PRIOR TO DEPLOYMENT