HomeMy WebLinkAboutOrdinance #3384 11,2
ORDINANCE NO. 3 3 8 4
AN ORDINANCE OF THE CITY OF HUNTINGTON BEACH
GRANTING A FRANCHISE TO METRICOM,INC.
TO INSTALL, OPERATE AND MAINTAIN A
"RICOCHETTM59 WIRELESS DIGITAL
COMMUNICATIONS RADIO NETWORK "
IN THE CITY PUBLIC RIGHT-OF-WAY
The City Council of the City of Huntington Beach does ordain as follows:
SECTION 1. The City of Huntington Beach hereby grants a Franchise to Metricom,Y
Inc., to install, operate and maintain a"RichocheJN"'wireless digital communications radio
network in the City public right-of-way. The terms and conditions of the franchi§e gated
by this ordinance are contained in the Franchise Agreement attached hereto as Exhibit 1 and v
incorporated by reference herein as though fully set forth in this Section 1.
PASSED AND ADOPTED by the City Council of the City of Huntington Beach at a
regular meeting thereof held on : 2 nd day of Elruary �, 1998.
rs
Mayor
ATTEST: APPROVED AS TO FORM:
City Clerk /s19� Ci ttorn
12.
REVIEWED AND APPROVED: INITIATED AND APPROVED:
City A ministrator Fire Chief
RE D AND APPROVED:
Direct r Public Works
SM:PCD:Ordinance:Metricom
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FRANCHISE AGREEMENT
BETWEEN THE CITY OF HUNTINGTON BEACH
AND METRICOM,INC.,TO INSTALL, OPERATE
AND MAINTAIN A"RICOCHET"WIRELESS DIGITAL
COMMUNICATIONS RADIO NETWORK
IN THE CITY PUBLIC RIGHT-OF-WAY
Table of Contents
Section PaFe
1 Grant of Franchise 1
2 Term. 2
3 Scope of Franchise 2
4 Franchise Fee 2
5 City Review and Approval of Construction Plans
for Installation of Radios . 3
6 Pole Fees 4
7 City Access Rate 5
8 Taxes 6
9 Business License 6
10 Modification of the Radios . 6
11 Construction Permit. . 7
12 Indemnification and Waiver 8
13 Insurance 8
14 Books and Records . 8
15 Most Favored Nations 8
16 Cash Deposit or Other Security 9
17 Liquidated Damages . 9
18 Notices . 10
19 Miscellaneous . 11
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FRANCHISE AGREEMENT
BETWEEN THE CITY OF HUNTINGTON BEACH
AND METRICOM,INC.,TO INSTALL, OPERATE
AND MAINTAIN A"RICOCHET" WIRELESS DIGITAL
COMMUNICATIONS RADIO NETWORK
IN THE CITY PUBLIC RIGHT-OF-WAY
THIS AGREEMENT is made and entered into this day of January 1998,by and
between the City of Huntington Beach, a California municipal corporation("City")and
Metricom,Inc., a Delaware corporation("Metricom")with principal offices located at 980
University Avenue,Los Gatos, California 95030.
1. Grant of Franchise. Pursuant to Chapter 12.48 of the Huntington Beach
Municipal Code ("Chapter 12.48"),the City hereby grants,and enters into this Franchise with
Metricom to install, operate and maintain a"RicochetTm"wireless digital communication radio
network in the City public right-of-way. "Ricochet"means the Ricochet Microcellular
Digital Network, a wireless microcellular digital radio communications network owned and
operated by Metricom. "Radio"means the radio equipment,whether referred to singly or
collectively,to be installed and operated by Metricom hereunder and more particularly described
in Exhibit A attached hereto. The radio equipment are to be attached to poles in the public right-
of-way consist primarily of"radio repeaters,"which are a very low powered digital wireless
communications micro cellular radios certified by the Federal Communications Commission
operating in the license free (902-928 MHz)portion of the radio spectrum.
The Grant of this Franchise to Metricom includes any acquisition of an ownership interest
in Metricom by Vulcan Venture or its affiliates. Notwithstanding anything to the contrary in
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§12.48.060 of the Huntington Beach Municipal Code,the acquisition of additional equity
ownership in Metricom by Vulcan Ventures or its affiliates, including the presently pending
transaction announced October 13, 1997,will not constitute an assignment,transfer, or change in
control for which the City's consent is required for purposes of this Franchise Agreement.
2. Tem. This Franchise is hereby granted by City to Metricom which shall
commence on Janu=5 1998 ("Effective Date"),and shall be for a term of five (5)years
from the Effective Date,unless it is earlier terminated by either party in accordance with the
provisions herein. The term of this Agreement shall be renewed automatically for up to two (2)
successive terms of five(5)years each,unless either Metricom or the City notifies the other party
of its intention not to renew not less than thirty(30)calendar days prior to commencement of the
relevant renewal term. All renewals shall be on the same terms and conditions as set forth
herein,except that the Pole Fee shall be subject to adjustment as provided below.
3. Scope of Franchise. This Franchise shall be subject to Chapter 12.48 and
provisions of this Agreement. To the extent this Agreement-conflicts with Chapter 12.48,
Chapter 12.48 shall control. All words used herein shall have the same definition as provided in
Chapter 12.48. Metricom shall comply with all applicable laws and Chapter 12.48 in the
exercise and performance of its rights and obligations under this Franchise.
4. Franchise Fee. Metricom shall pay the City's franchise fee in the amount of five
percent(5%) of its Gross Revenues. "Gross Revenues"means the gross dollar amount accrued
on Metricom's books for Services provided to its customers with billing addresses in the City,
excluding (i)this franchise fee,(ii) local, state or federal taxes collected by Metricom that have
been billed to the subscriber and separately stated on such bill, and(iii)revenue uncollectible
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from subscribers(i.e., bad debts) located in the City that were previously included in Gross
Revenues.
5. City Review and Approval of Construction PIans For Installation Of Radios.
(a) Metricom shall submit plans to the City Engineer describing any construction
program for installation of radios or similar major construction or reconstruction programs, at
least forty five (45) days before the start of construction. The plans shall be engineered to scale
and include the proposed location of the radios. The City Engineer shall have the power to
review and approve the plans for system upgrades and rebuilds to assure that they are consistent
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with applicable statutes, ordinances, and regulations governing construction within the public
streets of City , including without limitation the encroachment permit ordinance, zoning
ordinances and traffic safety standards. Where such plans and specifications are not in
i
compliance with such statutes, ordinances, and regulations, Metricom shall modify or revise
such plans and specifications so as to achieve such compliance.
i
(b) At least forty five(45) days prior to submitting its building plans,Metricom shall
submit a request to the City Engineer for maps identifying the location of City-owned poles or
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f other City-owned property that are available for attachment of Metricom's radios. Within thirty
(30) days of receiving such a request,the City Engineer shall provide the maps requested.
E
,
(c) Metricom agrees to attach its radios to City-owned poles or other City-owned
`i property whenever possible,provided that such City-owned poles or other City-owned property
i
are at least equally suitable functionally for the operation of Metricom's radio network and the
fee associated with such attachment is equal to or less than the fee or cost to Metricom of
attaching to the alternative third-party-owned property.
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6. Eple Fees. In addition to all other fees and taxes payable as a condition of this
Franchise,Metricom agrees to pay a per pole annual fee of sixty dollars ($60)pursuant to
Section 12.48.080(d) of Chapter 12.48. The initial annual pole fee shall be due and payable not
later than the date of installation of the first radio on a City-owned pole or other City-owned
property pursuant to the Franchise ("Installation Date"), and shall equal the number of radios
Metricom then estimates it will install on City-owned poles or other City-owned property during
the succeeding twelve (12) months multiplied by the annual fee. The Pole Fee for subsequent
years shall be due and payable not later than thirty(30)days following each anniversary of the
Installation Date and shall equal the number of radios then installed on City-owned poles or other
City-owned property pursuant to the Franchise,multiplied by the annual fee, adjusted for the
prior year adjustment, as described below. The prior year adjustment shall either increase or
decrease a subsequent year's Pole Fee to account for the installation or removal of radios during
the prior year, and shall equal the difference between(i)the number of radios used to calculate
the prior year's Pole Fee multiplied by twelve(12), and(ii)the actual number of radio months
which occurred during such year, multiplied by one twelfth(IA2) of the Pole Fee.
The Pole Fee shall be increased effective January of the first year of each renewal term
hereof based on the percentage change in the U.S. Department of Labor,Bureau of Labor
Statistics, Consumer Price Index of all items,Base 1982-1984,for the Los Angeles-Anaheim-
Riverside, California area which occurred during the previous term or renewal term.
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7. City Access Rate.
(a) City Access Program Subscription Rate. City shall have the right
throughout the term of this Franchise to purchase a number of subscriptions based upon the
City's population,up to the maximum number set forth below,to RicochetTM Basic Service
Subscriptions when such service is commercially available in the City at the rate of fifty percent
(50%) of the regular Basic Service Subscription rate as current from time to time. The number of
subscriptions which the City may purchase at the City Access Program rate shall be determined
in accordance with the City's official population,as shown on the latest available census data, as
follows: (a)for cities with a population of less than 100,000,up to a maximum of twenty (20)
discount subscriptions; (b) for cities with a population of 100,000 to 249,000,up to a maximum
of thirty (30) discount subscriptions; (c) for cities with a population of 250,000 to 500,000 up to
a maximum of forty (40) discount subscriptions;and(d)for cities with a population:of over
500,000,up to a maximum of fifty(50)discount subscriptions. City understands and agrees that
Metricom's modems and equipment required to utilize the discounted subscriptions and any
additional service subscriptions or service options the City may desire are expressly excluded
from this special City Access Program rate and may be obtained from either Metricom or an
authorized retailer at market rates current from time to time or under other promotional programs
which may be available from time to time in addition to the City Access Program rate. City shall
use all subscriptions provided pursuant to this subsection solely for its own use and shall not be
entitled to resell, distribute, or otherwise permit the use of the same by any other party.
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(b) License Restrictions. City shall use all subscriptions and equipment
provided pursuant to this Section 6 solely for its own use and shall not be entitled to resell,
distribute, or otherwise permit the use of the same by any other party.
S. Taxes. Metricom acknowledges and agrees that its services may be subject to the
City Utility Users Tax pursuant to Chapter 3.36 of the Huntington Beach Municipal Code
("HBMC"). Metricom agrees to collect the tax from service users and remit such tax to the City
in accordance with HBMC Chapter 3.36 upon City determination that Metricom's.services are
subject to the Tax.
9. Business License. Metricom shall obtain an annual City business license prior
to the Effective Date and maintain the same throughout the term of this Franchise.
10. Modification of the Radios.
(a) If the size, weight and power of the radios including the radio repeaters,
change in a material way from those described in Exhibit A,Metricom shall notify the City in
writing as soon as practicable and specify the change and reasons therefore. Such notice shall be
served at least thirty (30) days prior to the effective date of any material change in the size,
weight and power of the radios. Such change shall permit City Council to reopen, review and
modify the Franchise if the change materially alters the scope of the Franchise.
(b) The City further reserves the right to modify the service voltage delivered
to or at any street light pole or utility pole on which a radio may be located. Metricom shall
replace or modify any radio that will be affected by such voltage modifications with ten(10)
days of receiving notice of voltage modifications. In the event that Metricom fails to replace or
modify any radio within the ten(10)day notice period before the voltage modification,the City
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may disconnect any such radio until Metricom performs and completes the necessary work and
advises the City accordingly.
11. Construction_Permit.
(a) Metricom agrees that the Franchise is subject to all applicable permits as
required by law and the HBMC.
(b) Metricom acknowledges that the City may develop rules, regulations, and
specifications for the attachment,installation,and removal of radios on the City owned facilities,
including poles, and such rules,regulations, and specifications, when finalized, shall govern
Metricom's activities hereunder as if they were in effect at the time this Franchise was executed
by the City; provided, however,that in no event shall such rules,regulations or specifications
materially interfere with or affect Metricom's right to install radios, or Metricom's ability to
transmit or receive radio signals from radios installed,pursuant to and in accordance with this
Franchise, or materially increase Metricom's obligations under this Franchise.
(c) Metricom shall be available to the staff employees of any City department
having jurisdiction over Meticom's activities 24 hours a day, seven(7) days a week, regarding
problems or complaints resulting from the attachment,installation, operation,maintenance, or
removal of the radios. The City may contact,by telephone,the network control center operator
at telephone number(800) 556-6123 regarding such problems or complaints. Metricom shall
notify the City prior to any changes in this telephone number.
(d) To the extent the City has actual knowledge thereof,the City will attempt
to inform Metricom of the displacement of any City owned pole or other property on which any
radio is located.
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12. Indemnification and Waiver. Consistent with Section 12.48.140 of Chapter 12.48,
Metricom agrees to indemnify,protect, defend(with counsel acceptable to the City) and hold
harmless the City, its council members,officers, employees and agents, from and against any and
all claims, demands, losses, damages, liabilities, fines, charges, penalties, administrative and
judicial proceedings and orders,judgments,remedial actions of any kind, and all costs and
cleanup actions of any kind, all costs and expenses incurred in connection therewith, including,
without limitation,reasonable attorney's fees and costs of defense(collectively, the "Losses")
arising, directly or indirectly, in whole or in part, out of the activities or facilities described in
this Franchise, except to the extent arising,from or caused by the active negligence of the City, its
council members, officers, employees or contractors.
13. Insurance. Metricom agrees to obtain and maintain at all times during the term of
this Franchise insurance coverage as specified by Chapter 12.48.
14. Books and Records. Metricom shall keep accurate books of accounts pursuant to
Section 12.48.080 of Chapter 12.48 at its principal office in Los Gatos, California or such other
location of its choosing within the State of California.
15. Most Favored Nations. Should Metricom enter into an agreement with
another similarly situated jurisdiction of the same size or smaller as City in the Los Angeles,
Orange or Riverside County, California containing financial benefits for such jurisdiction which,
taken as a whole, are substantially superior to those in this Franchise, City shall have the right to
require that this Franchise be modified to incorporate the same or similar benefits and such other
terms. Metricom shall supply copies of relevant agreements upon written request by the City.
The benefits of such superior agreements shall be made available to City and become effective
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on the date Metricom receives the City's request for such superior agreement with such other
jurisdiction.
16. Cash Deposit or Other Security. Prior to the commencement of any work
.under this Franchise,Metricom shall furnish or cause to be furnished to City the following
security for the purpose of securing the faithful performance by.Metricom of all the work,
construction, installation, and other obligations required to be performed by Metricom under this
Franchise, within the time periods set forth in this Franchise: (i) a performance bond in the
amount of Three Thousand Dollars($3,000.00); and(ii)a letter of credit in the amount of One
Thousand Dollars ($1,000.00). Should the City draw upon this cash deposit pursuant to Section
12.48.050 of Chapter 12.48,then Metricom shall replenish the deposit within fourteen(14) days
of the draw down.
17. Liquidated Domages. The City and Metricom agree that as of the time of the
grant of this Franchise, it is impractical, if not impossible to reasonably ascertain the extent of
damages which will be incurred by City as a result of a material breach by Metricom of its
obligations under this Franchise. Accordingly, City ,through its City Administrator, Council or
a hearing officer,may,in its discretion, assess liquidated damages for the following:
(1) Up to two hundred dollars ($200.00) for each day of each material
breach, not to exceed six hundred dollars ($600.00) for each occurrence
of material breach;
(2) For a second material breach of the same nature occurring within
12 months where a fine or penalty was previously assessed,up to four
hundred dollars ($400.00) for each day of each material breach,not to
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exceed twelve hundred dollars($1,200.00)for each occurrence of the
material breach;
(3) For a third or further material breach of the same nature occurring
within those same 12 months, where a fine or penalty was previously
assessed,up to one thousand dollars ($1,000.00) for each material
breach, not to exceed three thousand dollars ($3,000.00) for each
occurrence of the material breach.
Prior to assessing any liquidated damages against the Metricom, City shall have provided
Metricom u7th notice and opportunity to cure in accordance with the provisions of Chapter
12.48.
The City and Metricom acknowledge and agree that the above-described liquidated
damages provisions represent a reasonable sum in light of all of the circumstances. Said
liquidated damages sums shall be applicable to each calendar day of delay following expiration
of the 30-day notice period provided above during which Metricom has been found by the City
Council to be in material default pursuant to this Section.
18. Notices. All notices which shall or may be given pursuant to this Franchise shall
be in writing and delivered personally or transmitted: (i)through the United Stated mail,by
registered or certified mail,postage prepaid; (ii)by means of prepaid overnight delivery service; _
or(iii)by facsimile transmission, if a hard copy of the same is followed by delivery through the
United States mail or by overnight delivery service as just described as follows:
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CRY Metricom, Inc.
City of Huntington Beach Metricom,Inc.
2000 Main Street 980 University Avenue
Huntington Beach, CA 92648 Los Gatos, CA 95030
Attn: Fire Chief Attn: Property Manager
Notices shall be deemed given upon receipt in the case of personal delivery, three
(3) days after deposit in the mail, or the next day in the case of overnight delivery. Either party
may from time to time designate any other address for this purpose by written notice to the other
party in the manner set forth above.
19. Mi cellaneous.
(a) This Franchise and Chapter 12.48 contain the entire understanding
between the parties with respect to the subject matter herein. There are no representations,
agreements or understandings(whether oral or written)between or among the parties relating to
the subject matter of this Franchise which are not fully expressed herein.
(b) This Franchise may not be amended except pursuant to a written
instrument signed by both parties pursuant to Chapter 12.48.
(c) This Franchise shall be governed and construed by and in accordance with
the laws of the State of California and the HBMC,without reference to its conflicts of law
principles. In the event that suit is brought by a party to this Franchise,the parties agree that trial
of such action shall be vested exclusively in the state courts of Orange County, California,or in a
United States District in Orange County, California.
(d) All exhibits referred to in this-Franchise and any addenda,attachments,
and schedules which may, from time to time,be referred to in any duly executed amendment to
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this Franchise are by such reference incorporated in this Franchise and shall be deemed a part of
this Franchise.
(e) This Franchise is binding upon the successors and assigns of the parties
hereon.
(f) In any case where the approval or consent of one party hereto is required,
requested or otherwise to be given under this Franchise, such party shall not unreasonably delay
or withhold its approval or consent.
METRICOM INC a CITY OF HUNTINGTON BEACH,
a Delaware corporati,n ',rcipal corer f the 7 0 la
By:
Mayor
D- —2 i n--
(print name) ATTEST:
Its: (circle one)Chairman/PresidentfVice President
AND City Clerk '5/v
By: APPROVED AS TO FORM:
Van,(-sse- A WA~
(print name) City Attorney
Its: (circle one)Secretary/Chief Financial Officer/
Asst.Secretary-Treasurer INITIATED AND APPROVED:
7'
REVIEWED AND APPROVED:
Vire Chief
City AdrffGistrator D AND
Director PublicWorks
ROVED:
s
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EXHIBIT A
[DESCRIPTION AND DIAGRAM OF RADIOS]
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END VIEW TOP VIEW
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EXHIBIT A-2
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EXHIBIT B
[PROPOSED RADIO LOCATIONS]
PROPOSED LOCATIONS TO BE PROVIDED
AFTER REVIEW OF STREET LIGHT MAPS
AND PRIOR TO DEPLOYMENT
Ord. No. 3384
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) ss:
CITY OF HUNTINGTON BEACH }
I, CONNIE BROCKWAY,the duly elected, qualified City Clerk of the
City of Huntington Beach, and ex-officio Clerk of the City Council of said City, do
hereby certify that the whole number of members of the City Council of the City of
Huntington Beach is seven; that the foregoing ordinance was read to said City Council
at a regular meeting thereof held on the 20th of January, 1998, and was again read to
said City Council at a regular meeting thereof held on the 2nd of February, 1998, and
was passed and adopted by the affirmative vote of at least a majority of all the members
of said City Council
AYES: Julien, Harman, Green, Dettloff, Sullivan, Garofalo
NOES: None
ABSENT: Bauer
ABSTAIN: None
I,Connie Brockway CITY CLERK of the City of
Huntington Beach and ex-officio Clerk of the City
Council,do hereby certify that a synopsis of this -
ordinance hass been published in the Independent on
JI uCL�f �a� ,19 r
In accordance with the City Charter of said City City Clerk and ex-officio Clad
onnie Brockway Cily Clerk of the City Council of the City
"- Depu1y Ci1y Clerk of Huntington Beach, California
G/ordinanc/ordbkpg
2/5/98