HomeMy WebLinkAbout49811 ORDINANCE NO. 4 9 8 1
2
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF AUBURN,
WASHINGTON, AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE A
4 FRANCHISE AGREEMENT BETWEEN THE CITY AND METRICOM, INC.
5
WHEREAS, METRICOM, INC. submitted its application for a
7 franchise agreement with the CITY prior to the CITY'S imposing
8 a moratorium on the issuance of land use development permits
9
for commercial wireless telecommunication facilities and like
10
towers; and
11
WHEREAS, the CITY has determined METRICOM INC.'S
13 application to be complete; and
]4 WHEREAS, a public hearing was conducted July 7, 1997
regarding the CITY entering into a franchise agreement with
METRICOM, INC.; and
17
18 WHEREAS, it has been determined that METRICOM, INC., has
19 the financial, technical and legal ability to provide the
20 services proposed in its application; and
2]
WHEREAS, there is capacity in the City's Public Ways, as
22
defined in the franchise agreement, to accommodate METRICOM
24
Ordinance No. 4981
July 14, 1997
Page 1
1
INC.'S proposed facilities as well as additional utility and
2
telecommunications facilities; and
WHEREAS, the damage or disruption, if any, of public or
4
5 private facilities, improvements, service, travel or
6 landscaping, including remedies, are addressed in the
7
franchise agreement to the satisfaction of the CITY; and
8
WHEREAS, the cost and disruption of construction within
9
the Public Ways, as defined in the franchise agreement, is in
]0
]1 the public interest, minimized; and
12 WHEREAS, the grant to use the Public Ways, as defined in
the franchise agreement, is in the public interest and the
14
effect, if any, on the public health, safety and welfare is
15
minimized and addressed in the franchise agreement; and
17 WHEREAS, the service METRICOM, INC., will provide to the
18 community and region is in the public interest; and
19
WHEREAS, the availability of alternate routes and/or
20
locations for any proposed facilities is addressed in the
2]
22 franchise agreement; and
23
25
26
Ordinance No. 4981
July 14, 1997
Page 2
1 WHEREAS, the franchise agreement requires that applicable
2 federal and state telecommunication laws, regulations and
3 policies followed during the term of the franchise agreement;
4
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN,
5
WASHINGTON, DO ORDAIN AS FOLLOWS:
Section !. The Mayor and City Clerk of the City of
7
8 Auburn are hereby authorized to execute a Franchise Agreement
9 between the City and METRICOM, INC. A copy of said Agreement
lO
is attached hereto, designated as Exhibit "A" and incorporated
]1
by reference in this Ordinance.
12
Section 2. The Mayor is hereby authorized to implement
14 such administrative procedures as may be necessary to carry
15 out the directives of this legislation.
Section 3. This Ordinance shall take effect and be in
17
force five days from and after its passage, approval and
]8
19 publication as provided by law.
20
21
22
23
24
25
Ordinance No. 4981
July 14, 1997
Page 3
4
6
CHARLES A. BOOTH
8 MAYOR
9
10 ATTEST:
11
Robin Wohlhueter,
13 City Clerk
]4
15
APPROVED AS TO FORM:
16
17 ~~
18
Michael J. Reynolds,
19 City Attorney
20
21
22
23
24
25
26
Ord:L~anae :No. ~981
July 14, 1997
Page 4
ORIGINAL
1
TABLE OF CONTENTS
2
FRANCHISE AGREEMENT WITH METRICOM
3
4
SECTION PAGE NO.
1. Definition of Terms 1
6
1.1 Agency 1
7
1.2 Affiliate 1
8 1.3 Anniversary Date 2
1.4 Cable Act 2
9 1.5 City Property 2
1.6 Communication Service 2
10
1.7 Emergency 3
11 1.8 Excess Capacity 3
1.9 Facilities 3
12 1.9a Overhead Facilities 4
1.9b Telecommunication Facilities 4
]3
1.9c Underground Facilities 4
14 1.10 FCC 4
1.11 Franchise 4
15 1.12 Franchise Area 5
1.13 Franchise Authority 5
16
1.14 Franchisee 5
17 1.15 Gross Revenue 5
1.16 Person 6
18 1.17 Property of Franchisee 7
1.18 Public Way 7
19
1.19 Radio Month 7
20 1.20 Radios 7
1.21 Ricochet 7
21 1.22 Subscriber or Customer 8
22 1.23 Surplus Space 8
1.24 Teleco=~unication System 8
23 1.25 Usable Space 8
24
25
28 Table of Contents
July 17, 1997
Page 1 [L\LegaL\agree\tc]
Exhibit "A" to Ordinance No. 4981
2. Terms of Franchise 9
2.1 Grant of Authority, Franchise
3 and Permits Required: 9
2.1.a Nonexclusive Franchise 9
4
2.1.b No Grant of Cable TV 10
5 Rights
2.1.c Limitation of Authority 11
8 2.1.d Franchise Required 11
2.1.e Compliance with 11
7
Applicable Law, Rules,
8 Regulations and Orders
9 2.2 Franchises and Franchise
10 Agreements 11
2.2.a City Discretion 11
]] 2.2.b Future Franchises 11
2.2.c Terms and Conditions 12
12 2.2.d Modifications of 12
13 Franchise
2.2.e Responsibility for 13
14 Costs
15 3. App]icat~on and Determination 13
3.1 Application. 13
]7 3.1.a Provision Intent 14
3.1.b Map of Existing 14
18 Facilities
19 3.1.c Description of Services 14
3.1.d Description of Access
20 and Line Extension
Policies 14
2] 3.1.e Service Area 15
22 3.1.f Provision of Service and 15
Use of Utility Poles 15
23 3.1.g FCC Licenses and
Certificates
24 3.1.h Franchise and Other 15
25 Washington Cities
26 Table of Contents
July 17, 1997
Page 2 [t\tegat\agree\tc]
Exhibit ~A" to Ordinance No. 4981
1 3.1.i Other Requested 15
2 Information
3.2 Determination 15
3 3.2.a Financial and Technical 15
Ability
4 3.2.b Legal Ability 16
5 3.2.c Facilities Accommodation 16
3.2.d Additional Facilities 16
6 Accommodation
3.2.e Damage or Disruption 16
? 3.2.f Minimizing Disruption 16
8 Cost
3.2.g Service 16
9 3.2.h Public Health, Safety and
Welfare 16
10 3.2.i Alternate Routes 16
11 3.2.j Federal and State Laws 16
3.2.k Other Factors 17
12
4. Acceptance. Rffect.~ve Date. 17
13
14 5. Po].4ce Powers 18
15 6. Rules and Regu]at.~ons of the C.~ty 18
16
7. Aaministration 18
17
8. Annexat.ion 19
18
9. Regu]at.~on of the Use o~ p~,h].4c Ways 19
19
20 9.1 Conditions of Street Occupancy 19
9.2 Approval of Plans and 19
2] Specifications
9.3 Restoration of Public Ways 20
9.4 Relocation/Removal 20
23 9.5 Building or Moving 22
9.6 Additional Requirements 22
24
10. Tree Trimm.~ng 22
25
Table of Contents
26
July 17, 1997
Page 3 [[\[egs[\sgree\tc]
Exhibit "A" to Ordinance No. 4981
1
2 15 . Safety Requ.~ rements 23
3 12. Use. Rental or Lease of Uti3 ity Poles
and Fac~ 1.4 ties 25
4
5 12.1 Metricom may seek to contract
with City 25
8 12.2 Compensation for use of City 26
owned poles
7 12.3 Increase of Annual Fee 28
8
13. Undergro,,nd.~ ng and nandscap.~ ng 29
9
13.1 Necessity to Comply with Underground
10 Wiring Ordinance 29
]1 13.2 Compliance to Comply 29
12 14. Poles and Fac~.~]ties 30
13 14.1 CITY Use of Poles and Facilities 30
14 14.1.a City Expense 31
14.1.b City Owned Facilities 31
15 14.1.c No Pole or Trench Charge 31
14.1.d No~contact with equip- 31
16 ment
17
14.2 Other Use of Poles and Facilities 31
18
15. Construct4on .in R.~ght-of-Way 32
19
20 15.1 Notification to City Public Works
Department 32
21
15.2 Facility Planning 33
23 15.3 Installation 34
24 15.4 Record of Installation 35
25
Table of Contents
July 17, 1997
Page 4 [[\[ega[\sgree\tc]
Exhibit "A" to Ordinance No. 4981
15.5 Shared Use of Excavations 36
15,6 Interference With Use of Public 37
3 Ways
4
16, Transfer or Assignment of Franchise
5 Agreement 38
6 17, Removal and/or Abandonment of 40
M~TRTCOM'S Property
7
8 18, Franchise Applicat.~on, Fees, Compen-
sation, Charges, Reporting Requirements,
9 Franchise Transfer and Best Rates 41
10
18.1 Franchise Application and Fee 41
11
18,2 Other Required Permits or 41
12 Inspections
13
18,3 Franchise Fee for Compensation 42
14 for Use of Public Ways and Late
Payment Charge
15
18.3.a Compensation for Use of 42
16 Public Ways
17 18,3.b, Annual Franchise Fee 43
Adjustments
18 18.3.c Quarterly Payment 44
18,3.d Late Payment 44
19
20 18.4 Fees and Compensation Not a Tax 44
21 18,5 Compensation To City 45
22
18.6 Quarterly Report 45
23
18.7 Recalculation at End of 46
24 Compensation Year
25
Table of Contents
26
July 17, 1997
Page 5 [[\[egal\agree\tc]
Exhibit "A' to Ordinance No. 4981
1
18,8 Taxes are Not to be a Credit 46
18,9 Utility Tax Liability- 47
3 Franchise Fees
4
18,10 Rights of City 47
5
18,11 Annual Report 47
18,12 Circumventing Payments 48
7
8 18,13 Best Rates 49
19, Acco~tso Books and Records 49
10
]1 19,1 City to be Informed 49
]2 19,2 Accounts 50
]3
19.2.a Complete and Accurate 50
14 Books
]5 19.2.b City's Existing Legal 51
]6 Boundaries
17 19,3 Access to ~ecords 52
]8 19,4 Inquiries to METRICOM 52
19
19,5 FCC and other Filings 52
20
2] 20, Indemn.~f~cat~on, Insurance, and 53
Bonds or other Surety
22
23 20,1 Indemnification 53
24
25
28 Table of Contents
July 17, 1997
Page 6 [[\[egaL\agree\tc]
Exhibit "A" to Ordinance No. 4981
1 20.2 Insurance 55
2 20.2.a Commercial General 56
Liability Insurance
3 20.2.b Automobile Liability 56
Insurance
4
5 20.3 Performance Bond 57
8 20.4 Recourse Against Bonds and 58
Other Security
7 20.4.a Recourse 59
8 20.4.b Restoration 59
20.4.c Rights of the City 60
9
21. Enforcement and Termination of
]0 Franch.~se 60
11
21.1 Notice of Violation 60
12 21.2 METRICOM'S Right to Cure 60
21.3 Public Hearing 61
13 21.4 Enforcement 62
14 21.4.a Foreclose 62
21.4.b Monetary damages 62
15 21.4.c Expiration 62
21.4.d Material breach 63
18 21.4.e Specific per- 63
17 formance
21.5 Emergencies 63
18 21.6 Moratorium on right of way 63
use permits
19
21.7 Acts of God 64
20
~2. Franchise Amendment 64
2]
23. Tariff Changes 65
22
23 24. Misce]laneous Provisions 65
24 24.1 Action of City 66
25
Table of Contents
26
July 17, 1997
Page 7 [[\[egat\agree\tc]
Exhibit ~A" to Ordinance No. 4981
]
24.2 Notice 66
2
24.3 Descriptive Headings 67
24.4 METRICOM Availability 67
4
5 24.5 Venue of Any Court Action 68
6 24.6 Exhibits 68
7
24.7 Action by the FCC 68
8
25. Severability 69
9
Signatures 70
]0 71
11
12 Attachment "A" 72
Statement of Acceptance
14 Attachment ~B" 73
City of Auburn boundary map
15
18
19
20
2]
22
23
24
25
Table of Contents
July 17, 1997
Pa~e 8 [[\Lega[\agree\~c]
Exhibit "A" to Ordinance No. 4981
ORiGiNAL
1 CITY OF AUBURN, WASHINGTON
2
FRANCHISE AGREEMENT WITH METRICOM
4
WHEREAS, METRICOM, INC., has applied to the CITY OF
5
AUBURN for a non-exclusive franchise for the attachment,
installation, operation and maintenance of a wireless digital
7
8 communications radio network in, on, upon, along and/or across
9 certain public ways within the CITY OF AUBURN.
]0
NOW, THEREFORE, the' CITY OF AUBURN, hereinafter referred
11
to as ~CITY" and METRICOM, INC., hereinafter referred to as
12
~METRICOM" agree as follows:
14 1. Definition of Terms.
15 1.1. "Agency" means any governmental agency or quasi-
governmental agency , including, but not limited to, the FCC
17
(Federal Communication Commission) and the W.U.T.C.
18
19 (Washington Utility and Transportation Commission) or
20 successor governmental entities thereto.
21 1.2. ~Affiliate" means an entity which <directly or
22
indirectly) owns or controls, is owned or controlled by, or is
23
under common ownership with Franchisee. For purposes of this
25
Me~icom Fr~chiseA~eement
~17, 1997 {t:\tegat\aaree\metr-5}
Pagel
Exh~it"A"to Ord~ceNo. 4981
]
definition, the term ~own" means to own an equity interest (or
2
the equivalent thereof) of more than ten (10) percent.
3
1.3. ~Anniversary Date" means for billing purposes, the
4
5 anniversary date shall be referenced to the execution date of
8 this franchise.
?
1.4. "Cable Act" means the Federal Cable Communications
8
Policy Act of 1984, as amended.
9
1.5. "City Property" means and includes all real
10
]1 property owned by the City, other than public ways. and utility
12 easements as those terms are defined herein, and all property
13
held in a proprietary capacity by the City, which are not
14
subject to right-of-way licensing and franchising as provided
15
herein.
16
17 1.6. ~Communication Service" shall mean any
]8 communication services provided by Metricom covered by the
19
terms of this franchise agreement over its "Telecommunication
20
system" (as hereinafter defined) either directly or as a
21
carrier for its subsidiaries, affiliates or any other person
22
23 engaged in Communication Services, including, but not limited
24 to, transmission of voice, data or other electronic
25
Me~com Fr~chise Agreement
hly 17, 1997 {t :\tegat\aaree\metr-5}
Page 2
Exhibit "A" ~ Ord~ce No. 4981
1
intelligence, facsimile reproduction, burglar alarm, meter
2
reading and home shopping. However, Communication Service
shall not include cable television services as defined under
4
5 the Cable Act for which a separate franchise would[ be required
6 to provide such cable television services, nor shall it
?
include video dialtone service as defined by the FCC in which
8
a separate franchise would also be required to provide such
9
video dialtone services.
]0
11 1.7. "Emergency" means a condition of imminent danger to
12 the health, safety and welfare of persons or property located
13
within the City including, without limitation, damage to
14
persons or property from natural consequences, such as storms,
15
16 earthquakes, riots or wars.
17 1.8. ~Excess Capacity" means the volume or capacity in
18
any existing or future duct, conduit, manhole, handhole or
19
other utility facility within the public way that is or will
20
be available for use for additional telecommunications
21
22 facilities.
23 1.9. "Facilities" includes "Overhead Facilities",
24 ~Telecommunication Facilities" and ~Underground Facilities":
25
Me~icom Fr~chise A~eement
July 17, 1997 {t :\tegat\agree\metr-5}
P~e 3
E~ibit "A" to O~in~ce No. 4981
1 1.ga. "Overhead Facilities" means utility poles,
2
utility facilities and telecommunications facilities
located above the surface of the ground, including the
4
5 underground supports and foundations for such facilities;
6 1.9b. ~Telecommunication Facilities" means the
7 plant, equipment and property, including but not limited
8
to, cables, wires, conduits, ducts, pedestals, antennae,
9
electronics and other appurtenances used or to be used to
10
]1 transmit, receive, distribute, provide or offer
12 telecommunications services; and
13 1.9c. "Underground Facilities" means utility and
14
telecommunication facilities located under the surface of
15
the ground, excluding the underground foundations or
17 supports for overhead facilities.
18 1.10. "FCC" means Federal Communications Commission, or
19
successor governmental entity thereto.
20
1.11. "Franchise" shall mean the initial authorization,
2]
or renewal thereof, approved by an ordinance of the City,
22
23 which authorizes the franchisee to construct, install,
24 operate, or maintain telecommunications facilities in, under,
25
26
Me~icom Fr~chiseAgreemem
h~17, 1997 {t:\tegat\agree\metr-5}
Page4
Exh~it"A"to Ord~ceNo. 4981
1
over, or across public ways of the City and to also provide
2
telecommunications service to persons or areas in the
Franchise Area (the City).
4
5 1.12. "Franchise Area" means all areas within the
6 current CITY limits and within any future adjusted boundaries
7
of the CITY limits. The effective date of any such changes in
8
the CITY limits will be the effective date(s) of any future
9
annexations.
]0
11 1.13. "Franchise Authority" means the CITY OF AUBURN or
12 the lawful successor, transferee, or assignee thereof.
13
1.14. "Franchisee" means METRICOM, INC., a Delaware
14
corporation, or the lawful successor, transferee, or assignee
15
thereof, with the consent as required in this franchise
16
17 agreement.
18 1.15. "Gross Revenue" shall mean all receipts accrued in
]9
Franchisee's books for all communications and communication-
20
related operations and services from subscribers to
22 Franchisee's business who have a billing address within the
23 corporate limits of the CITY as well as any other revenue
24 arising from operation or possession of this franchise
25
Me~com Fr~chise A~eement
~ly 17, 1997 {t :\tegat\agree~etr-5}
Page 5
Exhibk "A" ~ Ord~ce No. 4981
1
agreement, less the application and administrative fees
2
mandated in Sections 18.1 and 18.2 of this franchise agreement
and the franchise fee mandated by Section 18.3 hereinf By way
4
5 of example, but without limitation, "Gross Revenue" includes
6 all revenues from the sale or lease of equipment, installation
7
charges to subscribers who have billing addresses within the
8
corporate limits of the City, charges to customers,
9
subscribers and other users of the Telecommunication system
10
1] who have billing addresses within the corporate limits of the
12 City. ~Gross revenues" does not include: (a) taxes, fees, or
assessments of any kind or description imposed on or levied
14
against Franchisee which are not applicable to all other
15
persons or entities doing business within the City, (b)
16
17 revenues uncollectible from customers (bad debts) which have
18 been written off through generally accepted accounting
]9
practices, and (c) discounts.
20
1.16. "Person" means an individual, corporation,
21
22 partnership, limited liability company, general or limited
23 partnership, sole proprietorship, joint stock company, trust
24
25
Me~icom Fr~chise Agreement
~ly 17, 1997 {t :\tegal\agree~etr-5)
Page 6
Exhibit "A" to Ordnance No. 4981
]
corporation, business trust, any other form of business
2
association or entity, or a governmental entity.
1.17. "Property of Franchisee" means all property owned,
4
5 installed or used by Franchisee in the conduct of its business
6 in the City under the authority of the franchise granted
7 herein.
8
1.18. ~Public Way" shall mean the surface, t. he air space
9
above the surface and the area below the surface of any public
1] street, including, but not limited to, any public alley,
12 boulevard, drive, electric power company easement, right-of-
]3
way or sidewalk under the jurisdiction of the City.
14
1.19. ~Radlo Month" means a calendar month during which
15
a Radio occupies space on City-owned poles, even if such
16
17 occupancy is less than the entire month.
18 1.20. "Radios" means that radio equipment to be
19 installed and operated, leased or owned by METRICOM hereunder.
20
1.21. "Ricochet" means Ricochet MicroCellular Digital
2]
Network, a wireless digital communications microcellular radio
22
23 network owned and operated by METRICOM.
24
25
Me~icom Fr~chiseA~eement
h~17, 1997 {t:\tegat\agree\metr-5}
P~e7
E~k"A"toOrd~ceNo. 4981
1
1.22. "Subscriber" or "Customer" means a person or user
2
of the Telecommunication system who lawfully receives
Communication Services or other service therefrom with
4
5 Franchisee's express permission.
6 1.23. ~Surplus Space" means that portion of the usable
7
space on a utility pole which has the necessary clearance from
8
other pole users, as required by the federal or state law,
9
rules, regulations and/or orders, to allow its use by a
10
]1 telecommunications carrier for a pole attachment.
12 1.24. "Telecommunication System" shall mean METRICOM'S
13
system of poletop radio receiver/transmitters, modems,
14
antennas, and any associated converters, equipment or
15
facilities designed and constructed for the purpose of
16
]7 producing, receiving, amplifying or distributing by audio,
]8 video or other forms of electronic or electric signals to or
19
from subscribers or locations within the CITY.
20
1.25. bUsable Space" means the total distance between
2]
the top of a utility pole and the lowest possible attachment
22
23 point that provides the minimum allowable vertical clearance
24
25
26
Me~icom Fr~chise Agreement
~]y ]7, ]997 {[ :\[ega[\a~ee\me~-5}
P~e 8
Exhib~ "A" to Ord~ce No. 4981
1
as specified in any federal or state law, rules, regulations
or orders.
2. Terms of Franchise.
4
5 2.1. Grant of Authority, Franchise and Permits Required:
6 2.1.a. The CITY hereby grants to METRICOM a
7
nonexclusive franchise for a term of five (5) years from
8
the date of execution of the Statement of Acceptance by
9
METRICOM, which authorizes METRICOM to construct and
10
11 operate for transmission its Telecommunication System
12 within the Public Way and offer Communication Services
for distribution and sale within the Franchise Area.
14
Within the Franchise Area METRICOM may erect, install,
15
construct, repair, replace, reconstruct, maintain, or
]6
]7 retain within any Public Way and all extensions thereof
18 and additions thereto, such poles, facilities,
19
conductors, amplifiers, appliances, attachments and other
20
related property or equipment as may be necessary or
21
22 appurtenant to the Communications System subject to CITY
23 review and any other applicable laws, ordinances,
24 regulations, codes, rules or orders. This franchise does
25
Me~icom Fr~chiseAgreemem
hly 17, 1997 {t:\tegat\agree\metr-5}
Page9
Exh~it"A"toOrd~ceNo. 4981
1
not provide METRICOM exclusive use of any CITY poles or
2
property provided, however, that CITY agrees to obtain in
writing from any future telecommunication provider
4
5 covenants that subsequent to the installation by METRICOM
6 of its Telecommunication system in accordance with the
7
terms and conditions of this franchise, (a) such new
8
prorider shall not install new equipment if such
9
equipment causes interference with METRICOM'S operations
10
11 and (b) that in the event such interference occurs, such
12 provider shall immediately take all steps necessary to
eliminate such interference.
]4
2.1.b. This franchise agreement does not grant
]5
METRICOM the right to use such facilities for Cable
17 Television. No privilege or exemption shall be granted
18 or conferred on METRICOM except those specifically
19
prescribed herein, and any use of any Public Way shall be
20
consistent with any prior and future lawful occupancy of
2]
the Public Way or any subsequent improvement or
22
23 installation therein.
24
25
Me~icom Fr~chiseAgreemem
~17,1997 {t:\tegat\agree\~tr-5}
Page 10
E~ibit"A"mOrdh~ceNo. 4981
1
2.1.c. This grant of authority to provide the
2
services described herein shall be limited solely to
those services expressly described and no others. In the
4
5 event of any ambiguity, this franchise agreement shall be
B strictly construed as to the rights granted herein.
7
2.1.d. No person shall construct or operate a
8
Communications System nor provide a Communications
9
Service in the CITY without a franchise agreement
10
11 executed by the CITY and FRANCHISEE.
12 2.1.e. METRICOM is at all times subject to and must
comply with all applicable federal, state and. local laws,
]4
ordinances, codes, rules, regulations and orders.
15
METRICOM shall at all times be subject to the exercise of
]B
17 the CITY'S police powers.
18 2.2. Franchises and Franchise Agreements:
19
2.2.a. The CITY may grant franchises to other
20
telecommunication providers at its sole discretion.
21
2.2.b. All future franchises granted by the CITY
22
23 shall be nonexclusive, and shall not expressly or
24 implicitly preclude the issuance of other franchises, or
25
Me~icom Fr~chiseAgreement
July 17, 1997 {t:\tegat\agree\metr-5}
Pagell
Exhibit"A"toOrdh~ceNo. 4981
1 affect the CITY'S right to use or authorize the use of
2
its public ways to other persons as it determines
appropriate.
4
5 2.2.c. The terms, conditions and provisions of this
6 franchise agreement when fully executed, together with
7 all applicable laws, ordinances, codes, rules,
8
regulations and orders, enacted now or in the future,
9
shall define the rights and obligations of METRICOM and
10
1] the CITY relating to the franchise.
12 2.2.d. METRICOM acknowledges that the City may
]3 develop rules, regulations, and specifications for the
]4
attachment, installation, removal of radios and any
]5
similar purpose radios on the City-owned facilities and
]7 any located in the public way, including poles, and such
18 rules, regulations, and specifications, when finalized,
19 shall govern METRICOM'S activities hereunder as if they
20
were in effect at the time this Franchise was executed by
2]
the City; provided, however, that in no event shall such
22
23 rules, regulations or specifications (i) materially
24 interfere with or affect METRICOM'S right to install
25
26
Me~icom Fr~iseAgreemem
Ju~17, 1997 {t:\tegat\agree\metr-5)
P~el2
Exhibk"A"toOrd~ceNo. 4981
1
radios, or METRICOM'S ability to transmit or receive
2
radio signals from radios installed pursuant to and in
accordance with this Franchise, or (ii) increase
4
5 METRICOM'S financial obligations as identified under this
6 franchise agreement or impose new financial obligations
7
under this agreement.
8
Except as provided in this section 2.2.d.,
9
amendments to this franchise require mutual consent by
10
]1 both parties and a written instrument signed by both
12 parties.
2.2.e. Except as expressly provided to the
14
contrary, all costs incurred by METRICOM in complying
15
with this franchise agreement or any applicable laws,
17 ordinances, codes, rules, regulations and/or orders or
]8
any action thereunder shall be the sole responsibility of
19
METRICOM and shall not be the responsibility of or
20
charged to the CITY.
21
22 3. App.licat.~on and Determinat.~on.
23 3.1. Application. An applicant for a new franchise to
24 construct, operate, and maintain a telecommunication system as
25
Me~icom Fr~chiseAgreement
July17,1997 {t:\teaat\agree\metr-5}
Page 13
Exhibit"A"toOrd~anceNo. 4981
] defined in federal or state law within the CITY shall file an
2
application in a form prescribed by the CITY, accompanied by a
3
non-refundable filing fee in the amount of Two Thousand Five
4
5 Hundred Dollars ($2,500.00). Information submitted by
6 franchisee applicant with its application shall include the
7 following:
8
3.l.a. Whether the applicant intends to provide
9
cable service, video dialtone service or other video
10
]] programming service, and sufficient information to
12 determine whether such service is subject to cable
13
franchising;
14
3.1.b. An accurate map showing the location of any
15
existing telecommunications facilities in the City that
17 applicant intends to use or lease;
18 3.1.c. A description of the services or facilities
19
that the applicant will offer or make available to the
20
City and other public, educational, and governmental
21
institutions;
22
23 3.1.d. A description of applicant's access and line
24 extension policies;
25
Me~icom Fr~ch]seAgreement
3u~]7, ]997 ([:\[ega[\agree\metr-5)
Page|4
Exh~k~A"~00rd~ceNo. 498]
1
3.1.e. The area or areas of the City the applicant
2
desires to serve and a schedule for build[-out to the
3
entire franchise area;
4
5 3.1.f. The applicant's intended means and methods
8 of providing service and whether shared use Of other
7
utility poles or conduits is envisioned; and
8
3.1.g. Documentation of all FCC licenses and
9
]0 equipment certifications required by the FCC; and
11 3.1.h. A list of all cities in Washington where the
12 applicant has obtained a franchise; and
13
3.1.i. Such other and further information
14
reasonably necessary for the City to evaluate the
]5
16 application in whole.
17 3.2. Determination. The City shall issue a written
18 determination granting or denying the application in whole or
19
in part. Prior to granting or denying this franchise
20
agreement, the City Council shall conduct a public hearing and
2]
22 make a decision based upon the standards set forth below.
23 3.2.a. The financial and technical ability of the
24 applicant;
25
Me~icom Fr~chiseA~eemem
~1y17,1997 {t:\tegat\agree\~tr-5}
Page 15
E~ib~"A"toOrd~ceNo. 4981
] 3.2.b. The legal ability of the applicant;
2
3.2.c. The capacity of the Public Ways to
accommodate the applicant's proposed facilities;
4
5 3.2.d. The capacity of the Public Ways to
6 accommodate additional utility and telecommunications
7 facilities if the franchise is granted;
8
3.2.e. The damage or disruption, if any, of public
9
or private facilities, improvements, service, travel or
]0
1] landscaping if the franchise is granted;
]2 3.2.f. The public interest in minimizing the cost
13 and disruption of construction within the Public Ways;
14
3.2.g. The service that applicant will provide to
15
the community and region;
]7 3.2.h. The effect, if any, on public health, safety
18 and welfare if the franchise requested is granted;
19
3.2.i. The availability of alternate routes and/or
20
locations for the proposed facilities;
21
3.2.j. Applicable federal and state
22
23 telecommunication laws, regulations and policies; and
24
25
Me~icom Fr~chiseAgreement
July 17, 1997 {t:\tegat\agree\metr-5}
Pagel6
Exhibit"A"to Ord~ceNo. 4981
1 3.2.k. Such other factors as may demonstrate that
2
the grant to use the Public Ways will serve the community
interest. Pursuant to RCW 35A.47.040, the City Council
4
5 shall not approve this franchise agreement until the next
6 regularly scheduled council meeting following the public
7 hearing. If the application is denied, the written
8
determination shall include the reason for denial.
9
4. Acceptance, Rffective Date.
10
11 METRICOM shall accept the franchise granted pursuant
12 hereto by signing this franchise and the Statement of
13
Acceptance shown in Attachment "A" and providing proof of
14
compliance with Section 20, and filing same with the City
]5
Clerk or other appropriate official of the CITY within thirty
16
17 (30) days after the passage and final adoption of this
18 franchise. If not accepted and filed as provided in this
19
section within thirty (30) days, this agreement sihall be null
20
and void and of no effect and no franchise shall exist between
2]
the CITY and METRICOM.
22
23
24
25
26
Me~ic0m Fr~chiseAgreement
3u]y ]7, ]997 {[:\[ega[\agree\metr-5}
Page ]7
Bxh~b]t~A"~00rd]nanceNo. 498]
1 5. Pol.~ce Powers.
2
In accepting this franchise, METRICOM acknowledges that
its rights hereunder are subject to the legitimate rights of
4
5 the police power of the CITY to adopt and enforce general
6 ordinances necessary to protect the safety and welfare of the
7 public and METRICOM agrees to comply with all applicable
8
general laws enacted by the CITY pursuant to such power.
9
6. Rules and Regulations of the City.
10
11 In addition to the inherent powers of the CITY to
12 regulate and control any franchise it grants and those powers
13 expressly reserved by the CITY or agreed to and provided for
14
in this franchise, the right and power is hereby reserved by
15
the CITY to promulgate such additional regulations as it may
18
17 find necessary in the exercise of its lawful powers giving due
]8 regard to the rights of METRICOM.
19
7. Adm~n4strat.~on.
20
The performance of METRICOM under this franchise shall be
21
under the general direction of the Public Works Director or
23 his/her designees who shall be the contact person for all
24 matters relating to telecommunications, including but not
25
26
Me~]c0m Fr~ch]se
~]y ]7~ ]997 {[:\[ega[\a~ee\~-5}
P~e 18
E~ib~ "A" to Ord~ce No. 4981
1
limited to, any required notices, correspondence,
2
communications or actions.
8. Annexat~ on.
4
5 In the event that any territory served by METRICOM is
6 annexed to the CITY after the effective date of this
7
franchise, such territory shall be governed by the terms and
8
conditions contained herein upon the effective date of such
9
annexation.
10
11 9. Regu]at.~on of the Use of Public Ways.
]2 9.1. Conditions of Street Occupancy. All transmission
13
and distribution structures, poles, other facilities, and
14
equipment installed or erected by METRICOM pursuant to the
15
terms hereof shall be located so as to cause a minimum of
17 interference with the proper and lawful use of Public Ways and
18 to ensure the rights and reasonable convenience of property
19
owners who own property that adjoins any of said Public Ways.
20
9.2. Approval of Plans and Specifications. In
2]
22 accordance with Section 15 of this agreement, METRICOM shall
23 provide complete plans and specifications for all construction
24 within Public Ways to the designated city official for their
25
Me~icom Fr~chise A~eemem
~ly 17, 1997 ([ :\[egat\agree\~tr-5)
P~e 19
Exhibit "A" to Ord~ce No. 4981
] review at least sixty (60) days prior to the start of any
2
construction during the term of this franchise. In the event
3
plans and/or specifications are not approved, METRICOM shall
4
5 submit revised plans and specifications for approval.
8 9.3. Restoration of Public Ways. If during the course
7 of METRICOM'S construction, operation, or maintenance of the
8
Telecommunication system there occurs a disturbance of any
9
Public Way by METRICOM, METRICOM shall, at its expense,
10
]] replace and restore such Public Way to a condition reasonably
]2 comparable to the condition of the Public Way existing
13 immediately prior to such disturbance.
14
9.4. Relocation/Removal. Whenever the CITY determines
15
it is necessary that any facilities of METRICOM be removed or
18
|7 relocated to accommodate public safety, change in traffic
]8 conditions, the improvement of any areas, including but not
19 limited to, the grading or widening of any street within the
20
public way or the repair or relocation of any CITY owned
21
utilities, METRICOM shall, within sixty (60) days of written
22
23 notice from the CITY, remove or relocate such facilities as
24 directed, to an area within CITY public way mutually agreed
25
28
Me~icom Fr~chiseAgreement
July 17, 1997 {t:\tegat\a~ree\metr-S}
Page20
Exhibit"A"toOrd~ceNo. 4981
1
upon, at no cost to the City. METRICOM shall within the first
2
30 days after receipt of notice, communicate to the CITY its
intention, plan and schedule for said relocations or removals.
4
5 If METRICOM fails to comply with the requirements of the
6 initial thirty (30) day period, the CITY has the unilateral
7
right to proceed with the necessary relocation and removal
8
using its own employees or contractor, and METRICOM agrees to
9
reimburse the CITY all documented costs which were reasonably
]0
1] incurred by CITY and/or its contractors for any relocation,
12 removal or delay costs. METRICOM will design and install its
13
system in such manner that future relocations required by the
]4
CITY may be accomplished with least interruption of services.
15
In the event METRICOM fails to complete full performance
17 within the sixty (60) day period, METRICOM agrees to reimburse
18 the CITY for all damages incurred by the CITY or its
19
contractors for delays of future CITY work in the public way
20
related to equipment, conduit and cable routing conflicts
2]
related to METRICOM'S failure to comply with the requirements
22
23 of this subsection.
24
25
Me~icom Fr~chise Agreemere
~ly 17, 1997 (t :\tegat\agree\metr-5}
Page 21
Exhibit "A" to Ord~ce No. 4981
1
9.5. Building or Moving. Whenever any person shall have
2
obtained permission from the CITY to use any street or public
way for the purpose of moving any building, METRICOM, upon
4
5 seven (7) days written notice from the CITY, shall raise or
6 remove, at the expense of the person desiring to move the
7
building, any of METRICOM'S facilities which may obstruct the
8
removal of such building; provided, that the moving of such
9
building shall be done in accordance with regulations and
]0
11 general ordinances of the CITY. Where more than one street is
12 available for the moving of such building, the building shall
]3
be moved on such street as shall cause the least interference
]4
and inconvenience to the public. In such event, the CITY
15
shall have the authority for and responsibility of determining
17 the route to be utilized.
18 9.6 Additional Requirements. For additional
]9
requirements which may be applicable, see Section 15 of this
20
agreement.
2]
10. Tree Tr4mming.
22
23 Upon prior written approval of the CITY and in accordance
24 with CITY ordinances, METRICOM shall have the authority to
25
Me~icom FranchiseAgreement
hly 17, 1997 {t:\tegat\agree\metr-S}
P~e22
Exhibit"A"toO~in~ceNo. 4981
1
trim trees upon and overhanging streets, public ways and
2
places in the franchise area so as to prevent the branches of
such trees from coming in physical contact with the facilities
4
5 of METRICOM. METRICOM shall be responsible for debris removal
6 from such activities. If such debris is not removed within
7
twenty-four (24) hours, the CITY may, at its sole! discretion,
8
remove such debris and charge METRICOM for the cost thereof.
9
This section does not, in any instance, grant automatic
10
11 authority to clear vegetation for purposes of providing a
]2 clear path for radio signals. Any such general vegetation
13
clearing will require a land clearing permit.
14
ll. Safety Requirements.
15
Construction, installation, and maintenance of the
16
17 Telecommunication system shall be performed in an orderly and
18 workmanlike manner. All such work shall be performed in
substantial accordance with applicable FCC or ot]her federal,
20
state, and local law and regulations using commonly accepted
methods and devices for preventing failure and accidents which
23 are likely to cause damage, injury, or nuisance to the public.
24
28
Me~icom Fr~chiseAgreement
hly17,1997 {t:\teaat\aaree\metr-5}
Page 23
Exhib~"A"toOrd~ceNo. 4981
1
All of METRICOM'S structures, facilities, equipment and
2
connections within Public Ways or within the franchise area,
wherever situated or located, shall at all times be kept and
4
5 maintained in a safe, suitable condition, and inn good order
6 and repair.
7
The CITY reserves the general right to see that
8
METRICOM'S telecommunication system and telecommunications
9
facilities are constructed and maintained in a safe condition.
]0
11 If a violation of the National Electrical Safety Code or other
12 applicable ordinance(s) or regulation(s) is found to exist by
the CITY, METRICOM shall respond within a twenty-four (24)
]4
hour period of time from receipt of notification of violation
15
to restore the telecommunication system and/or
17 telecommunications facilities to a condition safe for the
]8 public. If the repairs are not made within the established
19
time frame, the CITY may make the repairs itself or have them
20
made and collect all reasonable costs thereof from METRICOM.
21
22
24
25
Me~icom Fr~chise A~eement
July 17, 1997 {t :\tegat\agree\~tr-5)
P~e 24
E~it "A" to Ord~ce No. 4981
1
12. Use, Rental or Lease of Utility Po]es and
2
Fac~ 1.4 t.~ es.
3
12.1. METRICOM may seek to contract with the CITY or any
4
5 appropriate board or agency thereof or with the holder or
6 owner of any utility franchise in the CITY for the use, rental
7
or lease of its or their poles and other structures and
8
facilities for the purpose of extending, carrying or laying
9
METRICOM'S facilities, electronic conductors and other
]0
11 facilities and appurtenances necessary or desirable in
12 conjunction with the operation of its Telecommunication
13
system. The CITY agrees that any public utility owning or
14
controlling such poles or other structures or facilities may,
]5
without amendment to its franchise, allow, and is encouraged
16
17 to allow, METRICOM to make such use thereof pursuant to any
]8 agreement reached between such utility company and METRICOM.
19
The CITY reserves the right to determine on a case by case
20
basis that particular circumstances require that a certain
21
22 utility pole is not appropriate for use by Metricom. METRICOM
23 agrees that prior to utilizing any CITY-owned poles, a
24 complete proposal illustrating the size, weight, and
25
Me~icom Fr~chiseA~eement
July 17, 1997 ([:\[egat\agree\~tr-5)
P~e25
Exhibk"A"toOrd~anceNo. 4981
]
attachment hardware for poletop radio antennas will be
2
submitted to the City Engineer for approval. METRICOM further
agrees that should the size, weight, or dimensions of such
4
5 poletop antennas change in the future from those approved by
6 the City Engineer, a new application will be submitted for
7
approval by the City Engineer prior to installation. The
8
proposal will also clearly indicate on a City map, the
9
specific CITY-owned poles to be utilized.
10
]1 12.2. As compensation for the use of City owned-poles,
]2 Metricom shall pay to the City an annual fee (the ~Annual
13
Fee") in the amount of Sixty Dollars ($60.00) for the use of
14
each City-owned pole upon which a Radio has been installed
15
16 pursuant to this Franchise. The initial Annual 2Fee shall be
17 due and payable not later than the date of installation of the
]8 first Radio on a City-owned pole pursuant to this Franchise
19
(the ~Installation Date"), and shall equal the total number of
20
Radios Metricom then estimates it will install on City-owned
21
22 poles during the succeeding twelve (12) months multiplied by
23 the Annual Fee. The Annual Fee for subsequent years shall be
24 due and payable not later than thirty (30) days following each
25
Me~icom Fr~chiseAgreement
Ju~17, 1997 {t:\tegat\agree\metr-5}
Page26
Exhibit"A"toOrdin~ceNo. 4981
1 anniversary of the Installation Date and shall equal the
2
number of Radios then installed on City-owned poles pursuant
to this Franchise multiplied by the Annual Fee, adjusted for
4
5 the Prior Year Adjustment, as described immediately below.
6 The Prior Year Adjustment shall either increase or decrease a
7 subsequent year's Annual Fee to account for the installation
8
or removal of Radios during the prior year, and shall equal
9
the difference between (i) the total number of Radios used to
10
]] calculate the prior year's Annual Fee multiplied by twelve
12 (12), and (ii) the actual number of Radio Months which
13 occurred during such year, multiplied by one-twelfth of the
14
Annual Fee as illustrated below.
15
16
]7
18
19
20
21
22
24
25
26 Me~icom ~iseAgreemem
· ~17, 1997 (t:\tegat\agree\metr-5}
Page27
Exhibit"A"~ Ord~ceNo. 4981
1
ILLUSTRATIVE CALCULATION OF ANNUAL FEE
2
ANNUAL RENEWAL F~E
3
4
No of radios installed x
5 multiplied by annual fee xx _
subtotal xxx
8 ± prior year adjustment (below) xx _
7 TOTAL xxx
8 PRIOR YEAR ADjUSTMeNT
9
# of radios - prior year x
10
multiplied by 12 months 12 _
11 subtotal (prior year radio xx
months)
12 - # of radio months current year <x> _
subtotal - adjustment of x
13 radio months
14 x 1/12 of annual fee x
Prior year adjust xxx
15
12.3. The Annual Fee shall be increased effective
17
January of the first year of each renewal term hereof based on
18
the percentage change in the U.S. Department of Labor, Bureau
19
20 of Labor Statistics, Consumer Price Index of all items, Base
21 1982-1984, for the Seattle - Tacoma Metropolitan Statistical
22
Area which occurred during the previous term or renewal term.
23
24
25
Me~icom Franchise Agreement
July 17, 1997 {t :\tegat\aaree\metr-S}
Page 28
ELibit "A" to Ord~ce No. 4981
1 !3. Underground.~ng and Landscaping.
13.1. The purpose of this section is to declare the
necessity to comply with the City's Underground Wiring
4
5 Ordinance, Auburn City Code 13.32, entitled "Underground
6 Wiring". As currently proposed, the facilities of the
7 Franchise do not require undergrounding. However, if future
8
design modifications include features which would otherwise be
required to be placed underground, then those portions of the
l0
ll Franchisee's future facilities shall be placed underground to
12 the extent that it is technologically feasible. Where the
13
Franchisee's facilities consist of antennae or other
]4
facilities which are required to remain above ground in order
]5
to be functional, this Section shall not apply.
16
17 13.2. In those situations where cable or wire
]8 transmission may be required, compliance with the underground
19
ordinance is required. In those areas and portions of the
20
CITY where the transmission or distribution facilities of a
21
22 utility providing telephone service and those of a utility
23 providing electric service are underground, then METRICOM
24 shall likewise construct, operate and maintain all of its
25
Me~icom Fr~chise Agreement
July 17, 1997 {t :\teaat\aaree\metr-S}
Page 29
E~ibit "A" to Ordh~ce No. 4981
1
transmission and distribution facilities which are not
2
wireless in the same area underground upon CITY approval.
METRICOM shall seek and obtain such approvals as are necessary
4
5 from other affected utilities and such activities shall be
6 accomplished in concurrence and cooperation with the other
7
affected utilities. Should landscaping be disrupted as a
8
result of this activity, METRICOM will restore the landscaping
9
and associated irrigation to their pre-construction appearance
]0
11 and function.
12 14. Poles and Facilities.
13
14.1. CITY. Use of METRiCOM Poles and Facilities. With
]4
respect to poles and trenches which are facilities and which
15
are (1) wholly owned by METRICOM and (2) within the Franchise
17 area, the CITY, subject to METRICOM'S prior written consent,
18 which may not be unreasonably withheld, may install and
maintain CITY-owned overhead facilities upon such poles, and
20
in underground conduits, for police, fire and other
2]
noncommercial communications purposes, subject to the
23 following:
24
25
Me~icom Fr~chiseAgreemem
~17, 1997 {t:\tegat\agree\metr-5}
Page30
Exhibit"A"to Ordh~ceNo. 4981
1 14.1.a. Such installation and maintenance shall be
2
completed at the CITY'S expense;
14.1.b. METRICOM shall have no obligation under the
4
5 indemnification provisions of this franchise for the
6 installation or maintenance of such CITY-owned facilities
7
or conduits.
8
14.1.c. METRICOM shall not charge the CITY a fee
9
for the use of such poles or trenches in accordance with
]0
11 this section as a means of deriving revenue therefrom;
12 provided, however, nothing herein shall require METRICOM
]3 to bear any cost or expense in connection with such
]4
installation and maintenance of CITY-owned facilities or
15
conduits.
17 14.1.d. In no case shall the City attach to or come
18 into contact with Franchisee's electronic equipment.
]9 14.2. Other Use of METRICOM Poles and Facilities.
20
Understanding that Franchisee does not presently own any poles
2]
or facilities, if during the term of this Franchise,
22
23 Franchisee obtains such, the following will apply:
24
25
2B Me~com Fr~chise Agreement
hly 17, 1997 {t :\tegat\agree\metr-5}
P~e 31
Exhibit "A" to Ordnance No. 4981
1 With respect to poles owned or placed by METRICOM in the
2
Franchise Area, or conduits or other facilities developed or
placed in the Franchise Area by METRICOM, the CITY may approve
4
5 use of or attachment or addition of devices to such placed
8 facilities by another franchisee or user, so long as such
?
action will not unreasonably interfere with METRICOM'S rights
8
under this franchise. METRICOM may not charge 'the CITY any
9
fee or costs based on such CITY approval, but METRICOM may
10
]1 seek from such others receiving CITY approval compensation as
12 necessary to recover its costs and expenses arising from
actions taken pursuant to approvals given as per this section.
]4
Further requirements regarding CITY-owned utility poles and
15
facilities are contained in Section 12.
16
17 15. Construction .in the Pub.].ic Way.
]8 15.1. Notification to City Public Works Department.
19
METRICOM shall submit an application to the Public Works
20
Department for a permit to perform work in the CITY'S public
21
22 ways. No work, other than emergency repairs shall commence
23 without such a permit. Emergency repairs may be made
24 immediately with written notification of such repairs given to
25
Me~icom Fr~chiseAgreement
July 17, 1997 {t:\tegat\agree\metr-5}
Page 32
Exhibit"A"toOrd~ceNo. 4981
I the CITY no later than the next business day. The application
2
shall include a complete proposal illustrating the locations,
3
(as specified in paragraph 15.4) size, weight, and attachment
4
5 hardware (to include sample materials) for poletop antennas.
6 The City Engineer will consult with the CITY'S pole supplier
7
to assure the CITY'S poles are structurally adequate prior to
8
approval. METRICOM agrees to modify its plans and mounting
9
details as required by the City Engineer pursuant to
10
11 structural review of the CITY'S pole supplier, and to pay the
12 CITY'S costs of such reviews.
13
15.2. Facility Planning. The CITY has established a
]4
policy to co-locate telecommunication cables and conduits in a
15
common corridor in so much as is technically feasible in order
16
]7 to minimize impact to the CITY'S pavement and interference
18 with existing and future CITY owned utilities. METRICOM
19
agrees to work with the CITY and other providers in planning
20
the location of any facilities in the public way. In order to
2]
aid the CITY in such co-location planning, in the event
23 METRICOM needs to install underground facilities, METRICOM
24 shall conduct any exploratory work as necessary to identify
25
Me~com Fr~chise Agreement
hly 17, 1997 {t :\tegat\aaree\metr-5}
P~e 33
E~ibit "A" to O~ce No. 4981
1
the location of any other existing underground utilities where
2
CITY records are inadequate to clearly indicate the same. The
CITY will make all existing relevant records available at no
4
5 cost to facilitate this cooperative effort. This section
6 applies to only those sections of the public ways where
7
installation of underground conduit or cables and related
8
support equipment is planned. Should METRICOM elect to
9
install extra capacity, which it may elect to make available
10
11 to others, it is understood that such spare capacity shall not
12 be sub-leased without the sub-leasee having negotiated a
franchise with the CITY.
14
The CITY in providing record drawings makes no guarantee
15
of accuracy, either express or implied.
17 15.3. Installation. In accordance with requirements of
]8 ACC 12.04, entitled "Public Works Construction" and ACC 12.28
19
entitled, ~Barricades" and with the permit issued, all
20
transmission facilities, equipment, and structures shall be
21
22 located and installed so as to cause minimum interference with
23 the rights and reasonable convenience of other property
24
owners, and at all times shall be maintained in a safe
25
Me~icom Fr~chiseAgreement
hly 17, 1997 {t :\teaat\agree\melt-5}
Page 34
E~ibit"A"toOrd~anceNo. 4981
] condition, and in good order and repair. Suitable barricades,
2
flags, lights, flares, or other devices shall be used at such
3
times and places as are reasonably required for the safety of
4
5 the public. Any poles or other fixtures placed in any street
6 by METRICOM shall be placed in such manner as not to interfere
7 with the usual travel on such public way. With respect to
8
excavations within any area, the CITY and METRICOM shall
9
comply with the provisions of Chapter 19.122 RCW and any other
10
11 applicable state law. To obtain a permit for facility
12 installation, METRICOM shall post a performance bond from a
13 Washington State based surety company in the amount determined
14
by the CITY, after City review of the scope of work intended.
15
Once the installation and all related site restoration work is
]7 completed to the CITY'S satisfaction, and record plans for
18 each crossing are received, the CITY will release the bond.
19
15.4. Record of Installation. METRICOM shall provide to
20
the CITY in AutoCad drawing file format, upon the CITY'S
21
written request, copies of available drawings in current use
22
23 showing the location of METRICOM'S facilities within the
24 Public Way to include those located on poles of the servicing
25
26
Me~icom Fr~chiseAgreemem
~1y17,1997 {t:\tegat\agree\metr-5}
Page 35
Exhibk"A"toOrdin~ceNo. 4981
electric power utility or other entity. METRICOM shall update
such map to reflect actual or anticipated improvements to the
4 system. Any such map (or update thereof) so submitted shall
5 be for informational purposes only and shall not obligate
6 METRICOM to undertake any specific improvements:, nor shall
7
such map be construed as a proposal to undertake any specific
8
improvements. Upon completion of any new work that changes
9
the nature and location of facilities in the public right-of-
10
]1 way, METRICOM shall submit to the CITY an updated record of
]2 said changes in AutoCad drawing file format. As an option,
13
METRICOM may submit only a map of such changes and pay the
]4
CITY'S cost to prepare the AutoCad record drawings. Each map
]5
revision will clearly distinguish poles owned by the City from
16
]7 poles owned by the electric power utility or other entity.
18 15.5. Shared Use of Excavations. METRICOM and the CITY
]9
shall exercise best efforts to coordinate construction work
20
which either entity may undertake within the Franchise area so
21
22 as to promote the orderly and expeditious performance and
23 completion of such work as a whole. Such efforts shall
24 include, at a minimum, reasonable and diligent efforts to keep
25
Me~icom Franchise Agreement
hly 17, 1997 {t :\legal\agree\melt-5}
Page 36
Exhibit "A" to O~ance No. 4981
1 the other party and other utilities within the franchise areas
informed of its intent to undertake any construction work.
METRICOM and the CITY shall further exercise best efforts to
4
5 minimize any delay or hindrance to any construction work
6 undertaken by themselves or other utilities within the
7 franchise area.
8
15.6. Interference With Use of Public Wayl~. METRICOM
9
must obtain a permit to perform work in the public: way for all
]0
11 work performed by METRICOM in such areas. When installing,
12 locating, laying, or maintaining facilities, apparatus, or
13 improvements, METRICOM shall not interfere with the use of any
14
street to any greater extent than is necessary, shall comply
15
with all CITY rules and regulations pertaining to traffic
]8
17 patterns and street maintenance, and shall leave the surface
]8 of any such street in as good condition as it was prior to
19 performance by METRICOM of such work. Any facility,
20
apparatus, or improvement under this Ordinance shall be laid,
21
installed, located, or maintained in conformance with
22
23 instructions given by, and to the satisfaction of the CITY.
24 In any event, METRICOM shall, at its own expense, and to the
25
26
Me~icom Fr~chiseAgreement
hly 17, 1997 {t:\teaat\aaree\metr-5}
Page37
Exhibit"A"toOrdhanceNo. 4981
1
satisfaction of the CITY, in accordance with the terms of the
2
application for any permit to perform work in the public way,
restore to CITY standards and specifications any damage or
4
5 disturbance caused to streets as a result of METRICOM'S
6 construction, operations or activity.
?
16. Transfer or AssigDment of Franch.~se Agreement. This
8
franchise agreement with METRICOM shall not be sold,
9
transferred, leased, assigned, or disposed of directly or
10
11' indirectly, in whole or in part, either by sale, voluntary or
]2 involuntary merger, consolidation, by operation of law or
otherwise, without the prior written consent of the CITY to
14
ensure a review of unforeseen circumstances not present at the
15
time of the original franchise. The CITY'S approval shall
16
17 comply with any of its ordinance requirements and shall not be
18 unreasonably withheld, conditioned or delayed. Such costs
]9
associated with this review process shall be reimbursed to the
20
CITY by the new prospective franchisee0 Such reimbursable
2]
costs will not exceed those, in constant dollars, incurred in
22
23 the refranchising process.
24
25
Me~icom Fr~chise A~e~m~nt
Sly 17, 1997 (L:\tegat\agree\~tr-5)
P~e 38
E~ib~ "A' to Ord~ce No. 4981
1
An assignment of this franchise shall be deemed to occur
2
if there is an actual change in control or working control or
3
where ownership of fifty (S0%) percent or more of the
4
5 beneficial interests, singly or collectively, are obtained by
6 other parties. The word "control" as used herein is not
7
limited to majority stock ownership only, but includes actual
8
working control in whatever manner exercised.
9
METRICOM shall promptly notify the CITY prior to any
]0
]1 proposed change in, or transfer of, or acquisition by any
12 other party in control of METRICOM'S company or METRICOM'S
]3
Telecommunications System or Facilities, or substantial parts
14
thereof, or of the control of the capacity or bandwidth of
15
franchisee shall cause a review of the proposed transfer
]6
17 requiring City approval. Transactions between. affiliated
]8 entities are not exempt from City approval. In the event that
19
the CITY adopts a resolution denying its consent and such
20
change, transfer or acquisition of control has been affected,
21
the CITY may cancel, terminate or revoke this franchise
22
23 agreement. Approval shall not be required for mortgaging
24 purposes or if said transfer is from METRICOM to another
25
Me~icom Fr~chise Agreement
~ly 17, 1997 (t :\tegat\agree\~tr-5}
P~e 39
E~ibit "A" to Ord~ce No. 4981
1
person or entity controlling, controlled by, or under common
2
control with METRICOM.
17. Removal and/or Abandonment of M~TRICOM'S Property.
4
5 In the event that the use of any part of the telecommunication
6 system is discontinued for any reason for a continuous period
of twelve (12) months, or in the event such system or property
8
has been installed in any public way or public place without
complying with the requirements of this franchise and all
lO
11 other applicable CITY ordinances and regulations or this
12 franchise has been terminated, canceled or has expired,
13
METRICOM shall promptly, upon being given ten (10) days'
14
notice, remove within ninety (90) days from the public way or
15
18 public places all such property and poles of such system other
17 than any the CITY has authorized to be abandoned in place.
18 The City may extend such time period for removal for an
19
additional period of time not to exceed ninety (90) days.
20
Upon removal, METRICOM shall promptly restore the public way
21
22 and/or'other areas from which such property has been removed
23 to a condition reasonably comparable to the condj. tion of the
25
Me~icom Fr~chise Agreement
~ly 17, 1997 {t:\tegat\agree\~tr-5}
P~e 40
E~ibk "A" to Ord~ce No. 4981
Public Way existing immediately prior to such removal or
2
abandonment, normal wear and tear excepted.
Any property of METRICOM remaining in place= ninety (90)
4
5 days after the termination or expiration of the franchise
B shall be considered permanently abandoned. In such event,
7
CITY may at CITY'S option, remove and put such abandoned
8
property in storage. METRICOM agrees to reimburse the CITY
9
the cost and expense of removal and storage, which costs will
]0
]1 be documented by the CITY.
12 .18. Franchise App.lication, Fees, Compensat.~on, Charges,
13
Reporting Requ.~rements, Franchise Transfer and Best Rates.
14
18.1. Franchise Application Fee. Prior to the
1B processing of this franchise agreement, METRICOM agrees to
17 submit its application on the form provided by the CITY
18 together with a Two Thousand Five Hundred Dollars ($2,500)
19
application fee.
20
18.2. Other Required Permits or Inspections. METRICOM
2]
shall, in addition to the fees described in Section 18.1
22
23 above, be subject to all permit fees associated with
24 activities undertaken as a result of the authority granted in
25
MeWicom Franchise Agreement
July 17, 1997 {t :\tegat\agree\~tr-S}
Page 41
Exhibit "A" to Ord~ce No. 4981
1 this franchise and pursuant to any requirements of other City
2
ordinances and regulations. Where the CITY incurs costs and
expenses for review, inspection, or supervision of activities
4
5 undertaken through the authority granted in this franchise and
6 pursuant to any requirements of other City ordinances and
? regulations relating to the subject for which a permit fee is
8
not established, METRICOM shall pay such actual. and direct
9
costs and expenses directly to the CITY. In addition to the
10
1] above, METRICOM shall promptly reimburse the CITY for any and
]2 all actual costs the CITY reasonably incurs in response to any
emergency involving METRICOM'S facilities.
14
18.3. Franchise Fee for Compensation for Use of the
15
Public Ways and Late Payment Charge.
16
17 18.3.a. Compensation for Use of P~,~.l.~c Ways. The
18 CITY finds that the Public Ways to be used by METRICOM in
the operation of its Telecommunication System within the
20
boundaries of the Franchise are valuable public
properties, acquired and maintained by the CITY at great
23 expense to its taxpayers, and that the grant to METRICOM
24 of the use of said Public Ways is a valuable property
25
Me~icom Fr~chise Agreement
July 17, 1997 {t :\te~at\aaree\~tr-5}
Page 42
Exhibit "A" to Ord~ce No. 4981
right, without which METRICOM would be requinred to invest
2
substantial capital in right-of-way costs and
4 acquisitions; therefore, METRICOM agrees to pay to the
5 CITY as a general compensation for the use of the Public
6 Way during each year of the initial term of this
franchise, a franchise fee as determined by City Council,
8
not to exceed six percent (6%) of Gross Revenues, as
9
defined in Section 1 herein, for each quarter of each
10
11 calendar year. METRICOM agrees to pay the franchise fee
12 mandated by this Section 18.3.a but CITY acknowledges and
understands that such amount (and any other fees,
14
assessments, or taxes imposed on METRICOM not described
15
in section 18.4. below) shall appear as a line item on
16
17 the bill sent to, and shall be collected from, the
18 Subscribers.
19
18.3.b. Annual Franchise Fee Adjustments. The
20
initial annual franchise fee percentage shall be five
21
22 percent (5%) of gross revenues unless and until it is
23 adjusted by City Council. Any such adjustment shall
24
occur at least sixty (60) days before any subsequent
25
Me~icom Fr~chiseAgreemem
July 17, 1997 {t:\tegat\agree\metr-5}
Page 43
Exhib~"A"toOrd~ceNo. 4981
1
annual anniversary date. Any adjustment shall become
effective on the subsequent annual anniversary date.
18.3.c. Quarterly Payment. METRICOM shall forward
4
5 by check wire transfer an amount equal to this quarterly
8 payment by the fifteenth (15th) day of the second
7 calendar month immediately following the close of the
8
calendar quarter for which the payment is calculated.
9
18.3.d. Late Payment. In the event any quarterly
10
11 payment is made after noon on the date ten (10) days
12 after the date due, METRICOM shall pay a late payment
13
penalty of the greater of: (i) Twenty-five Dollars
14
($25.00) or (ii) simple interest at a twelve percent
15
(12%) annual percentage rate on the total amount past
16
17 due.
18 18.4. Fees and Compensation Not a Tax. The fees, charges
19
and fines provided for in this franchise and any compensation
20
charged and paid for the Public Ways provided for herein,
21
22 "fiduciary or in kind", if applicable, are separal~e from, and
23 additional to, any and all federal, state, local and City
24 taxes as may be levied, imposed or due from a
25
Me~icom Fr~chise Agreement
July 17, 1997 {t :\tegat\agree\~tr-5}
Page 44
E~ibit "A" to Ord~ce No. 4981
1 telecommunications carrier or provider, its customers or
2
subscribers or on account of the lease, sale, delivery or
transmission of telecommunications services.
4
5 18.5. Compensation to City. The compensation required
6 from any telecommunications carrier shall be as provided by
7
law. In the event the franchise fee agreed to herein shall be
8
held unenforceable by a court of law which has jurisdiction
9
over the CITY, METRICOM agrees to pay the equivalent amount
10
11 paid in franchise fees as a city utility tax which, it is
12 agreed, shall be applied retroactively to time periods during
]3
which the franchise fee was determined to be unenforceable.
14
18.6. Quarterly Report. In order to properly determine
]5
the gross revenues received by METRICOM, METRICOM agrees that
17 on the same date that each quarterly payment is made, it will
18 file with the Director of Finance a sworn copy of a report, in
19
a form acceptable to the CITY, in sufficient detail to itemize
20
revenues from each of the revenue categories. The CITY may,
2]
if it sees fit and at its own expense, have the books and
22
23 records of METRICOM examined by a representative of said CITY
24 to ascertain the correctness of the reports agreed to be filed
25
Me~icom Fr~chiseAgreement
July 17, 1997 {t:\tegat\agree\metr-5}
Page 45
Exhib~"A"toOrd~ceNo. 4981
1 herein. Neither the acceptance of any payment nor any
2
subsequent review shall be deemed an agreement by the CITY
that the correct payment was paid, absent a fully authorized
4
5 written release by the CITY on any such payments or on such
6 reports. Any necessary prorations shall be made in the first
?
and last year of each term of the franchise.
8
18.7. Recalculation at End of Compensation Year. At the
9
end of each calendar year, METRICOM shall recalculate the
]0
ll total general compensation actually due. If additional
12 amounts are due the CITY by Franchisee, said amounts shall be
paid by the fifteenth (15th) day of February following the
]4
calendar year during which such amounts were originally due.
]5
If amounts are found to be due METRICOM by the CITY, said
17 amounts shall be credited by the fifteenth (15th) day of
18 February during which such amounts were originally due. Any
19
necessary prorations will be made.
20
18.8. Taxes are Not to be a Credit. The compensation
2]
22 paid under this franchise shall be exclusive of and in
23 addition to all special assessments and taxes of whatever
24 nature which are applicable to all other persons or entities
25
Me~icom Franchise A~eement
~ly 17, 1997 (t :\tegat\agree\metr-5)
Page 46
E~ibit "A" m Ord~ce No. 4981
1 doing business within the CITY, including, but not limited to,
2
ad valorem tax, sales tax, corporate or business occupation
taxes or other taxes or fees imposed or levied by any
4
5 governmental entity.
8 18.9. Utility Tax Liability-Franchise Fees. Revenues
7 derived directly or indirectly from sources within the CITY,
8
shall be subject to applicable utility tax as negotiated as of
9
the time of commencement of such operations. Franchise fees
10
11 shall be in addition to any utility tax, but shall be
12 collectible only to the extent as then allowed by law, and in
13
no event may the combined utility tax and franchise fee exceed
14
six percent (6%) of Gross Revenues.
]5
18.10. Rights of CITY. Payment of money' under this
16
17 franchise shall not in any way limit or inhibit any of the
18 privileges or rights of the CITY, whether under this franchise
]9
or otherwise, except insofar as CITY'S privileges or rights
20
are expressly limited or inhibited by the terms of this
2]
franchise.
22
23 18.11. Annual Report. METRICOM shall file annually with
24 the Director of Finance no later than ninety (90) days after
25
26
Me~icom Fr~chise Agreemere
hly 17, 1997 {t:\tegat\agree\~tr-5)
P~e 47
E~ibk "A" to Ord~ce No. 4981
1
the end of METRICOM'S fiscal year, an unaudited statement of
2
revenues (for that fiscal year just ended) attributable to the
operations of METRICOM'S telecommunication system, within the
4
5 CITY pursuant to this franchise agreement. This statement
6 shall present a detailed breakdown of gross revenues and
7
uncollectible accounts for the year. The CITY may, if it sees
8
fit, have such report audited by an independent certified
9
10 public accountant of its choosing. If the audil5 reveals an
]1 error in payment by METRICOM of more than five percent (5%),
12 then METRICOM shall pay for the costs of the audit. If the
audit reveals an error in payment of five percent (5%) or
14
less, the CITY shall pay the costs of the audit. This report
15
will summarize those accounts reconciled to be within the
17 Franchise Area by the CITY'S quarterly review.
18 18.12. Circumventing Payments. Any transaction(s) which
19
have the effect of circumventing payment of the required
20
franchise fees and/or evasion of payment of franchise fees or
21
22 any payments due the CITY under this franchise by non-
23 collection or non-reporting of gross revenues, bartering, or
24
25
Me~icom Fr~chise Agreement
July 17, 1997 {t :\legal\agree\melt-5}
Page 48
E~ibit "A" to Ord~ce No. 4981
1
any other means which evade the actual collection of revenues
2
for business pursued by METRICOM are prohibited.
3
18.13. Best Rates. As part of the compensation to the
4
5 CITY for the grant of this franchise, the CITY shall be
6 entitled to obtain subscriptions, at the CITY'S discretion, to
7 the communication service at METRICOM'S lowest rate applicable
8
to any government body or municipality of the State of
9
Washington. In addition, CITY shall be entitled to METRICOM'S
10
11 lowest available rate applicable to any governmental body or
]2 municipality of the State of Washington for purchase and/or
13
lease, should the CITY determine to purchase and/or lease,
14
equipment or modems applicable to government bodies or
]5
municipalities in the State of Washington for purposes of
16
]7 accessing the communication service.
18 !9, Accounts, Books and Records.
19.1. City to be Informed. METRICOM shall keep the CITY
20
fully informed as to all matters in connection with or which
2]
22 may affect the construction, reconstruction, removal,
23 maintenance, operation and repair of METRICOM'S system,
24 METRICOM'S accounting methods and procedures in connection
25
Me~icom FranchiseAgreement
July 17, 1997 {t:\tegat\agree\~tr-S}
Page49
E~ibit"A"toOrd~ceNo. 4981
!
therewith, and the recording and reporting by METRICOM of all
2
revenues and uncollectibles. METRICOM shall report to the
CITY such other non-proprietary information relating to
4
5 METRICOM as the CITY may reasonably determine to be necessary
6 to protect the rights and obligations under this Agreement.
7
CITY acknowledges that METRICOM is a reporting company under
8
the Securities Exchange Act of 1934 and that shares of its
9
stock are publicly traded. As such, METRICOM may be precluded
10
11 from disclosing certain sensitive, non-public information by
12 virtue of rules and regulations promulgated under such act or
13
otherwise.
]4
19.2. Accounts.
19.2.a. METRICOM shall keep complete and accurate
16
17 books of account and records of its business and
18 operations pursuant to this franchise ordinance in
accordance with generally accepted accounting principles
20
or in accordance with accounting rules prescribed by
21
22 applicable federal or state regulatory agencies. The
23 CITY may require the keeping of additional records or
24 accounts which are reasonably necessary for purposes of
25
26 ................................................
Me~com Fr~chiseAgreement
July 17, 1997 {t:\teaat\agree\metr-S}
Page50
E~ibit"A"toOrd~ceNo. 4981
1
identifying, accounting for, and reporting gross revenues
2
and uncollectibles for purposes of Section 20.4 hereof.
METRICOM shall keep its books of account and records in
4
5 such a way that breakdowns of revenues are available by
6 type of service within the CITY.
7
19.2.b. Attachment ~B", attached hereto and by this
8
reference incorporated herein as if fully set forth,
9
reflects the CITY'S existing legal boundaries. All
lO
ll subscribers who report a billing address in the City of
12 Auburn shall be subject to taxes and fees under this
franchise. When required by the City, Metriccm shall make
14
available a complete list of addresses only for all
15
subscribers with an Auburn street and/or post office
17 address with the following zip codes:(98001, 98002,
]8 98003, 98022, 98031, 98032, 98042, 98047, 98071, 98092,
19
98372, 98390). This list shall be available for review
20
by the CITY at a local METRICOM business office. The
21
list will be provided on a computer disc in ASCI II
22
23 format sorted by zip code. It is understood that this
24 data is only needed for Auburn to perform an audit to
25
26 ................................................
Me~icom ~chiseA~eemem
~17, 1997 {t:\tegat\aaree\metr-5)
Page51
Exhibit"A"~ Ordin~ceNo. 4981
1 ascertain that. the correct subscribers are subjected to
2
Auburn taxes and fees. As the city annexes new areas
Attachment ~B" will be updated to reflect the change in
4
5 corporate city limits.
6 19.3. Access to Records. Subject to the caveat set
7
forth in Section 19.1 above, METRICOM shall provide the CITY
8
with access at reasonable times and for reasonable purposes,
9
to examine, audit, review and/or obtain copies of the papers,
10
11 books, accounts, documents, maps, plans and other records of
12 METRICOM pertaining to this franchise ordinance. METRICOM
13 shall fully cooperate in making available its records and
]4
otherwise assisting in these activities.
15
19.4. Inquiries to METRICOM. The CITY may, at any time,
17 make inquiries pertaining to METRICOM'S operation of its
]8 Telecommunication System within the Franchise Area. METRICOM
19
shall respond to such inquiries on a timely basis.
20
19.5. FCC and other Filings. Subject to the caveat set
21
forth in Section 19.1 above, METRICOM shall provj. de the CITY
22
23 with notices of all petitions and applications submitted by
24 METRICOM to the FCC, Securities and Exchange Commission and
25
28
Me~icom Fr~chise A~eement
~ly 17, 1997 {t :\tegat\agree\metr-5)
P~e 52
Exh~it "A" to Ord~ce No. 4981
1 the Washington Utilities and Transportation Commission or
2
their successor agencies, directly relating to any
substantially important matters which negatively affect the
4
5 use of the Public Ways and/or the telecommunications
6 operations authorized pursuant to this franchise.
7 20, Tndemnification, Tnsurance, and Bonds or other Surety.
8
20.1. Indemnification. In the construction,
9
installation, repair, operation or maintenance of all
10
11 conductors, facilities, conduits, radios, substations,
]2 apparatus and appliances or other facilities, METRICOM hereby
agrees to defend, indemnify, protect and hold ]harmless the
14
CITY from all claims, actions or damages of every kind or
15
description which may accrue to or be suffered by any person
16
|7 or persons, corporation or property by reason of or occasioned
18 in whole or in part by any act or activity carried on by
19
METRICOM, its officers, agents, servants or employees in the
20
exercise or in furtherance of the privileges and authority
21
granted herein, whether or not it is alleged that the CITY is
22
23 responsible to any extent, and including specifically, but not
24 limited to, suits by employees of METRICOM against the CITY.
25
26
Me~icom Fr~chiseAgreement
h~17, 1997 {t:\teaat\aaree\metr-S}
Page53
Exh~it"A"to Ordin~ceNo. 4981
]
In the event any claim or demand be presented to or filed with
2
the CITY which may give rise to METRICOM'S duty to defend and
so hold the CITY harmless, the CITY shall within sixty (60)
4
5 days notify METRICOM thereof in writing and METRICOM shall
6 have the right, but without any subrogation claim(s) or rights
7
against the CITY, at its selection, to settle or compromise
8
such claim or demand. In the event any suit or action is
9
commenced in which the CITY is named as a party, which might
10
]1 give rise to METRICOM'S obligation to so defend and save the
12 CITY harmless, METRICOM shall be notified thereof within
13
thirty (30) days, and METRICOM shall have the right, but
14
without any subrogation claim(s) or rights against the CITY,
15
at its sole cost and expense, to defend, settle or compromise
17 such suit or action by attorneys of its own selection subject
18 to the CITY'S right to participate as provided in this
19
section.
20
The provisions of this section shall not be construed to
2]
22 require METRICOM to hold harmless, appear and defend, pay any
23 judgment or reimburse the CITY'S costs as to any claim,
24 demand, suit or action occasioned by the sole or gross
25
Me~icom FranchiseA~eement
July 17, 1997 {t:\tegat\agree\~tr-S}
Page54
Exhibit"A"toOrdinanceNo. 4981
1 negligence of the CITY. Provided that if the CITY, its
2
employees, or agents negligently damage any facility installed
by METRICOM pursuant to this agreement, the CITY'S
4
5 responsibility with respect to any damage directly or
6 indirectly resulting from such action, including, but not
7 limited to, any claim of economic loss by any person resulting
8
from interference with or disruption of said communications
9
facility, shall be limited to the cost of replacing or
10
]] repairing such facility.
]2 The CITY shall have the right at all times to participate
13 through its own attorney in any suit or actions which arise
]4
out of any right, privilege or authority granted by or
]5
exercised pursuant to this agreement in the event the CITY
17 determines that such participation is required to protect the
18 interest of the CITY or the public. The provisions of this
19
section shall survive the expiration or termination of this
20
franchise agreement.
21
20.2. Insurance. METRICOM shall maintain in full force
22
23 and effect throughout the term of this agreement the
24 following:
25
26 Me~icom Fr~iseAgreement
Ju~17, 1997 (t:\tegat\agree\metr-5}
Page55
Exh~it"A"to Ord~ceNo. 4981
]
20.2.a. Commercial General Liability Insurance in
2
an amount of not less than $5,000,000 per occurrence,
4 $5,000,000 General Aggregate and $5,000,000
5 Products/Completed Operations Aggregate. The Commercial
6 General Liability insurance policy shall contain or be
7
endorsed to include the following:
8
1. Products and Completed liability operations
9 coverage.
]0
2. Contractual liability coverage.
]1
3. Cross liability/Severability of interest.
4. Broad form property damage
13
]4 5. Occurrence form.
15 6. Independent contractors coverage.
7. No X, C, or U (explosion, collapse, or
17 underground) exclusion.
18 8. CITY named as additional insured.
19
20.2.b. Automobile Liability Insurance covering any
20
auto in an amount of not less than $5,000,000 combined
21
22 single limit.
23 The Automobile Liability and Commercial General
24 Liability insurance shall be written by companies
25
Me~icom Fr~chise A~eement
hly 17, 1997 {t :\tegat\agree\~tr-5}
P~e 56
E~ibR "A" to Ord~ce No. 4981
licensed to do business in the State of Washington. An
2
excess or umbrella liability policy may be purchased to
3
meet the required insurance limits. Certificates of
4
5 insurance evidencing the insurance requirements shall be
6 furnished to the CITY before the franchise becomes
7
effective and at any time thereafter at the request of
8
the CITY. Such insurance certificates shall. give thirty
9
(30) days notice of cancellation to the CITY. Any
10
]1 contractors, subcontractors, or agents of METRICOM shall
12 also meet all of the insurance requirements of Section 20
13
and shall not be allowed on any CITY right-of-way until
14
certificates of insurance evidencing the insurance
15
]6 requirements in a satisfactory manner are received by the
17 CITY.
]8 20.3. Performance Bond. METRICOM shall promptly repair
19
or cause to be repaired any damage to CITY property caused by
20
METRICOM or any agent, employee or servant of METRICOM.
21
METRICOM shall comply with all present and future ordinances
22
23 and regulations regarding excavation or construction and, if
24 deemed necessary by the CITY, shall be required to post a
25
Me~icom Fr~chise Agreement
~ly 17, 1997 {[ :\legat\agree\metr-5}
Page 57
Exhibit "A" to Ordin~ce No. 4981
1
performance bond or other surety acceptable to the CITY in an
2
amount specified by the CITY in favor of the CITY warranting
that all restoration work will be done promptly and in a
4
5 workmanlike manner.
6 It is understood between CITY and METRICOM that no
7
performance bond will be required if METRICOM uses Puget Sound
8
Energy, or its successor utility company, to perform any
9
installation, maintenance or restoration work. However, if
10
11 Puget Sound Energy is not used by METRICOM, then METRICOM
12 shall be required to post a performance bond pursuant to this
]3
section.
14
20.4. Recourse against Bonds and other Security. Bonds
15
and other security may be utilized by the CITY for purposes,
16
17 including, but not limited to, reimbursement to the CITY by
18 reason of METRICOM'S failure to pay the CITY any sums due
]9
under the terms of this franchise, reimbursement to the CITY
20
for reasonable costs borne by the CITY to correct METRICOM'S
21
violations not corrected after due notice, and monetary
22
23 remedies or damages assessed against METRICOM due to default
24 or violations of the requirements of this franchise.
25
26 ................................................
Me~icom Fr~chise Agreement
hly 17, 1997 {t :\tegat\agree\~tr-5}
Page 58
E~ibit "A" ~ O~ce No. 4981
1
20.4.a. Recourse. In the event METRICOM has been
2
declared to be in default by the CITY under this
3
franchise and if METRICOM fails, within thirty (30) days
4
5 of mailing of the CITY'S finding of default, to pay the
6 CITY any monetary sanctions, or fails to perform any of
7
the conditions of the franchise, the CITY may thereafter
8
foreclose against the performance bond and/or withdraw
9
from any security an amount sufficient to compensate the
10
]] CITY'S damages, with interest at the legal rate. Upon
]2 such foreclosure or withdrawal, the CITY shall notify
13
METRICOM in writing, by First Class Mail, postage
]4
prepaid, of the amount and date thereof.
15
20.4.b. Restoration. Within thirty (30) days after
16
17 mailing notice to METRICOM that the CITY has foreclosed
]8 METRICOM'S performance bond or that any amount has been
19
withdrawn by the CITY from other security pursuant to
20
subsection 20.4.a. above, METRICOM shall deposit such
further bond or sum of money, or other security, as the
22
23 CITY may require, sufficient to meet the requirements of
24 this franchise agreement.
25
Me~icom Fr~chiseAgreemem
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E~ibk"A"toOrd~ceNo. 4981
]
20.4.c. Rights of the City. The rights reserved to
2
the CITY with respect to any bond or security are in
addition to all other rights of the CITY whether reserved
4
5 by this franchise agreement or authorized by law, and no
8 action, proceeding, or exercise of a right with respect
7
to any bond or other security shall constitute an
8
election or waiver of any rights or other remedies the
9
CITY may have.
]0
11 21. Enforcement and Termination of Franch.~se.
12 21.1. Notice of Violation. In the event that the CITY
13
believes that METRICOM has not complied with the terms of the
14.
franchise, the CITY shall notify METRICOM in writing of the
15
exact nature of the alleged noncompliance or violation.
17 21.2. METRICOM'S Right to Cure or Respond.. EXCEPT in
18 cases involving a notice of safety violation (Section 11,
]9
~Safety") where a cure is required within twenty-four (24)
20
hours, METRICOM shall have thirty (30) days from receipt of a
2]
22 Notice of Violation described in Section 21.1: (1) to respond
23 to the CITY contesting the assertion of noncompliance or
24 violation, (2) to cure such default, or (3) in the! event that,
25
Me~icom FranchiseAgreemem
July17,1997 {t:\tegat\agree\metr-5}
Page 60
Exhibit"A"toOrd~ceNo. 4981
] by the nature of default, such default cannot be cured within
2
the thirty ( 30 ) days period, initiate reasonable steps to
remedy such default and notify the CITY of the steps being
4
5 taken and the projected date that they will be completed.
6 If a franchise issue arises in which the C2TY questions
7
either METRICOM'S compliance with this agreement or the
8
propriety of METRICOM'S action(s) relating to this agreement,
9
METRICOM shall, upon written inquiry, provide a specific
]0
11 reference to either the federal, state, or local law or the
12 W.U.T.C. order or action establishing a basis for METRICOM'S
actions.
14
21.3. Public Hearing. In the event that METRICOM fails
]5
to respond to the notice described in Section 11 or Section
16
]7 21.1 pursuant to the procedures set forth in Section 21.2, or
18 in the event that the alleged violation is not remedied within
19
the prescribed period of time after METRICOM is notified of
20
the alleged violation pursuant to Section 11 or Section 21.2,
21
the City Council shall schedule a public hearing to
22
23 investigate the violation. Such public hearing shall be held
24 at the next regularly scheduled hearing of the City Council
25
Me~icom Franchise Agreement
July 17, 1997 {t :\teaat\agree\melt-S}
Page 61
E~ibit "A" to Ord~ce No. 4981
1
which is scheduled at a time which is no less than five (5)
2
business days therefrom. The CITY shall notify' METRICOM of
the time and place of such public hearing and provide METRICOM
4
5 with an opportunity to be heard.
8 21.4. Enforcement. Subject to applicable federal and
7
state law, in the event the CITY, after such public hearing,
8
determines that METRICOM is in default of any provision of the
9
franchise, the CITY may:
]1 21.4.a. Foreclose on all or any part of any
]2 security provided under this franchise, if any, including
13
without limitation, any bonds or other surety; provided,
14
however, the foreclosure shall only be in such a manner
15
and in such amount as the CITY reasonably determines is
16
17 necessary to remedy the default;
18 21.4.b. Commence an action at law for monetary
19
damages or seek other equitable relief;
20
21.4.c. After the expiration of said 30-day period
2]
22 to cure violation, the CITY may act to remedy the
23 violation and charge the costs and expenses of such
24 action to METRICOM.
25
Me~icom Fr~chiseAgreement
hly17,1997 {t:\tegat\agree~etr-5}
Page 62
E~ibit"A"toOrd~ceNo. 4981
1 21.4.d. In the case of a material breach of the
2
franchise, declare the franchise agreement to be
terminated or revoked; or
4
5 21.4.e. Seek specific performance of any provision,
6 which reasonably leads itself to such remedy, as an
7 alternative to damages.
8
METRICOM shall not be relieved of any of its obligations
9
to comply promptly with an provision of the franchise by
10
11 reason of any failure of the CITY to promptly enforce
12 compliance.
13 21.5. Emergencies. The CITY may act without; any written
14
prior notice in case of an emergency.
15
21.6. Moratorium on right-of-way use permits. In
17 addition to other remedies provided herein, if METRICOM is not
18 in compliance with requirements of this franchise, and if a
]9
good faith dispute does not exist concerning such compliance,
20
the CITY may place a moratorium on issuance of any pending
2]
METRICOM right-of-way use permits until compliance is
22
23 achieved.
24
25
Me~icom Fr~chise Agreement
July 17, 1997 {t :\te~at\a~ree\metr-5)
Page 63
Exhibit "A" to Ordnance No. 4981
]
21.7. Acts of God. METRICOM shall not be held in
2
default or noncompliance with the provisions of the franchise,
4 nor suffer any enforcement or penalty relating thereto, where
5 such noncompliance or alleged defaults are caused. by strikes,
6 acts of God, power outages, or other events reasonably beyond
7
its ability to control.
8
22. Franchise Amendment.
9
This franchise may be amended only by written instrument,
10
11 signed by both parties, which specifically states that it is
12 an amendment to this franchise, and is approved and executed
13
in accordance with the laws of the State of Washington.
]4
Without limiting the generality of the foregoing, this
15
16 franchise shall govern and supersede and shall not. be changed,
]7 modified, deleted, added to, supplemented or otherwise amended
18 by any permit, approval, license, agreement or other document
19
required by or obtained from the CITY in conjunction with the
20
exercise (or failure to exercise) by METRICOM of any and all
2]
22 rights, benefits, privileges, obligations, or duties in and
23 under this franchise, unless such permit, approval, license,
24 agreement or document specifically:
25
26 ................................................
Me~icom Fr~chiseAgreement
July 17, 1997 {t:\tegat\agree\metr-S}
Page 64
E~ibit"A"toOrdin~ceNo. 4981
]
(a) references this franchise; and
2
(b) states that it supersedes this franchise to the
3
extent it contains terms and conditions which change, modify,
4
5 delete, add to, supplement or otherwise amend the terms and
6 conditions of this franchise.
?
This franchise is subject to the provisions of any
8
applicable tariff now or hereafter on file with the Washington
9
Utilities and Transportation Commission or its successor. In
10
]] the event of any conflict or inconsistency between the
12 provisions of this franchise and such tariff, the provisions
of such tariff shall control.
14
23. Tariff Changes.
15
If METRICOM shall file, pursuant to Chapter 80.28 RCW,
]7 with the Washington Utilities and Transportation Commission
]8 (or its successor) any tariff affecting the City's right
19
arising under this franchise, METRICOM shall gj. ve the City
20
Clerk written notice thereof within five (5) calendar days of
21
the date of such filing.
22
23 24. M~sce]]aneo,,s Provisions.
24
25
Me~icom Fr~chise A~eement
July 17, 1997 ([ :\[egat\agree\~tr-5)
P~e 65
E~ibR "A' to Ord~ce No. 4981
1
24.1. Action of City. In any action by the CITY or
2
representative thereof mandated or permitted under the terms
3
hereof, such party shall act in a reasonable, expeditious, and
4
5 timely manner. Furthermore, in any instance where approval or
6 consent is required under the terms hereof, such approval or
7
consent shall not be unreasonably withheld, conditioned or
8
delayed.
9
24.2. Notice. Unless otherwise expressly agreed between
10
1] the parties, every notice or response to be served upon the
]2 CITY or METRICOM shall be in writing, and shall ]be deemed to
13
have been duly given to the required party five (5) business
14
days after having been posted in a properly sealed and
15
correctly addressed envelope by certified or registered mail,
]7 postage prepaid, at a Post Office or branch thereof regularly
]8 maintained by the U.S. Postal Service.
19
The notices or responses to the CITY shall be addressed as
20
follows:
21
22 City Clerk
25 West Main Street
23 Auburn, WA 98001
24 With a copy to:
25
Me~icom Franchise Agreement
hly 17, 1997 {t :\legal\agree\melt-5}
Page 66
E~ibit "A" m Ordnance No. 4981
] City Attorney
2 City of Auburn
25 West Main Street
3 Auburn, WA 98001
4 The notices or responses to METRICOM shall be addressed as
5
follows:
Metricom, Inc.
7 980 University Avenue
8 Los Gatos, CA 95030
Attention: Property Manager
9
10 The CITY and METRICOM may designate such other address or
]]
addresses from time to time by giving notice to the other.
]2
24.3. Descriptive Headings. The captions to sections
14 contained herein are intended solely to facilitate the reading
15 thereof. Such captions shall not affect the meaning or
16 interpretation of the text herein.
]7
24.4. METRICOM Availability. METRICOM shall be
]8
available to CITY staff employees of a CITY department having
19
20 jurisdiction over METRICOM'S activities 24 hours a day, 7 days
21 a week, regarding problems or complaints resulting from the
attachment, installation, operation, maintenance, or removal
23
of METRICOM'S telecommunication system. The CITY may contact
24
by telephone the network control center at 1-800-873-3466, a
25
26
Me~icom ~chiseAg~ement
~17, 1997 {t:\tegat\agree\metr-5}
Page67
Exh~it"A"to Ord~ceNo. 4981
]
telephone number at which a METRICOM employee can be reached
2
twenty-four (24) hours a day, seven (7) days a week regarding
such problems or complaints.
4
5 24.5. Venue of Any Court Action. This franchise shall
6 be governed and construed by and in accordance with the laws
7
of the State of Washington. In the event that suit is brought
8
by a party to this franchise, the parties agree that
9
10 jurisdiction of such action shall be vested exclusively in the
]] King County Superior Court for the State of Washington, or in
12 the United States District Court for the Western District of
Washington located in Seattle, Washington.
14
24.6. Exhibits. All exhibits referred to in this
15
16 franchise and any addenda, attachments, and schedules which
17 may, from time to time, be referred to in any duly executed
18 amendment to this franchise are by such reference incorporated
19
in this franchise and shall be deemed a part of this
20
franchise.
2]
22 24.7. Action by the FCC. In the event the FCC
23 promulgates more stringent notice requirements, technical
24 standards, consumer protection or consumer services
25
Me~icom Fr~chiseAgreement
hly 17, 1997 {t:\tegat\aaree\metr-5}
P~e68
Exhibk"A"toOrdin~ceNo. 4981
1 requirements than are contained in this agreement, those more
2
stringent requirements shall prevail. The CITY shall give
reasonable notice when in their determination that has
4
5 occurred. METRICOM shall retain and not waive any or all
8 rights and privileges as afforded either under this contract
7
or pursuant to federal law or FCC regulations to complain
8
and/or appeal such a determination.
9
25. Severability.
10
11 If any section, sentence, paragraph, term, or provision
12 hereof is determined to be illegal, invalid, or
13
unconstitutional, by any court of competent jurisdLiction or by
14
any state or federal regulatory authority having jurisdiction
15
thereof, such determination shall have no effect on the
]8
17 validity of any other section, sentence, paragraph, term or
18 provision hereof, all of which will remain in full force and
19
effect for the term of the franchise, or any renewal or
20
renewals thereof.
2]
PASSED BY THE CITY COUNCIL OF THE CITY OF AUBURN,
22
23 WASHINGTON, AT ITS REGULAR MEETING ON THE ~z~ day of
24 ~ , 1997.
25
Me~icom Fr~chiseAgreemem
hly 17, 1997 {t:\tegat\aaree\metr-S}
Page69
Exhibit"A"to Ord~ceNo. 4981
l
2
3 CITY OF AUBURN
4
5
CHARLES A. BOOTH
7 MAYOR
8
9
ATTEST:
10
11
13 Robin Wohlhueter,
City Clerk
14
15
16
APPROVED AS TO FORM:
17
18 r-
20//X '
Michael J. Reynolds,
21 City Attorney
22
23
24
25
26
Metricom Franchise Agreement
July 17, 1997
Page 70
"it "A" t.o
Exhib Ordinance No. 4981
3 CITY OF AUBURN'
4
CHARLES A. BOOTH
7 MAYOR
8
9
ATTEST:
10
11
13 Robin Wohlhueter,
City Clerk
14
15
16
APPROVED AS TO FORM:
17
18
19
20
Michael J. Reynolds,
21 City Attorney METRICOM, IN .
23 W D. Swain
V.P., Administration
24
25
26
Me~ic0m Franchise Agreement
luly 17, 1997 {[
Page 70
"it "A" to
Exhib Ordinance No. 4981
NO 209
State of C(~rf ~ ' CAPACITY CLAIMED BY SIGNER
,County of [] INDIVIDUAL(S)
[] COFIPORATE
DATE . OT ~
T~LE(S)
~ PARTNER(S)
personally appeared ;11 b ' ,
~ME(S) OF SIGNER(S) ~ TRUSTEE(S)
~ personally known to me - OR -~ proved to me on the basis of satisfacto~ evidence
~ SUBSCRIBING WITNESS
tO be the person(s) whose name(s) is/are
D GUAnDIAN/CONSERVATOR
subscribed to the within instrument and .ac-
knowledged to me that he/she/they executed ~ OTHEn:
[.......... ~ the same in his/her/their authorized
e.~ capacity(ies), and that by his/her/their
] ~!~ ~ signature(s) on the instrument the person(s),
" ~ ' - orthe enti~ upon behalf of which the person(s) SIGNER IS REPRESENTING:
· ~ ~~ l acted, executed the instrument. NAME OF PERSON(S) OR ENTI~(IES)
...... ' ' ' ' ~" ' ' ~ ~ Witness my hand and official seal.
A~E~ON NOTARY: Although the information r fraudulent a~achmenl of this ~ffifi~l:e
to unauthodz~ d~ument.
THIS CERTIFICATE Title or Type of Document
Number of Pages Date of Document
I
DESCRIBED AT RIGHT: S'gner(s) ~her Than Na ed Above_
~ 1~1 NATI~AL NOTARY AS~IATION · 82~ Remm~ Ave. · P.O. ~x 71 ~ · ~n~a Pa~, CA 91~-71~
]
2 METRICOM, INC.
4
5 By:
Title:
7
8
9
STATE OF WASHINGTON )
10
)ss
]1 COUNTY OF KING )
12 On this day of , 1997, before me the
undersigned, a Notary Public in and for the State of
13
Washington, duly commissioned and sworn, personally appeared
]4 , of METRICOM, INC., the corporation
that executed the within and foregoing instrument, and
15 acknowledged the said instrument to be the free and voluntary
act and deed of said corporation, for the uses and purposes
16
therein mentioned, and on oath stated that he/she is
17 authorized to execute said instrument.
18 IN WITNESS WHEREOF, I have hereunto set my hand and
affixed my official seal on the date hereinabove set forth.
19
20
21
NOTARY PUBLIC in and for the State of
22 Washington, residing at
23
MY COMMISSION EXPIRES:
24
25
Me~icom Fr~chiseA~om~nt
July 17, 1997 ([:\[ega[\agree\~tr-5)
P~e71
E~ibit"A"toOrdin~ceNo. 4981
]
2
ATTACHMENT "A"
3
STATEMENT OF ACCEPTANCE
4
5
8 METRICOM, INC., for itself, its successors and assigns,
hereby accepts and agrees to be bound by all terms, conditions
7
and provisions of the franchise granted pursuant to Ordinance
8 No. 4981, attached hereto and incorporated herein by this
reference.
9
11 BY: //~.
13 Title:
14
Date:
15
16
17 Attached hereto is a copy of the executed Ordinance
approving the execution of the franchise by the City and a
18 corporate resolution or corporate secretary certificate
therefor duly executed and approving this Statement of
]9
Acceptance, the execution thereof and authorizing the officer
20 executing this Statement of Acceptance to do so.
21
22
23
24
25
26 ................................................
Me~]c0m FranchiseAgreement
/u]y ]7, ]997
Page72
Exh]bit~'A"to Ord~ceNo. 498]
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..,, .~:=.. :.-... '~t~,'~ ~,z:":., '~~. ~,.~~;~.:'. i:..i::':,..~" _'~=....~ .....t:::..:,
· . ~ ..."':'.... "' ...";"... "'. 7" '? ':"..' "' ,;; "'~:r "..
" ......"' ~"'~. ." ": "'j ." ".:..':""':"'L'."' :'..;.." T'::L.=".'..' ~..'(' "~<~" . """ ""
Legend=
, ~H~ C~y of Au~rn ~undary ~ G,~, D,,, C,~
' C~ of A~rn
~ Potential Annexation Area A~TACB~E~NT "B"
~ C[~ OF AUBURN