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HomeMy WebLinkAbout1359 04-27-1999�dhwnce No. 1359 AN ORDINANCE OF THE CITY OIL EU LIESS, TEXAS, GRAN'T'ING A LICENSE TO METRICOM, INC. FOR THE CONSTRUCTION AND OPERATION OF A COMMUNICATION SYSTEM The City of Euless, State of Texas (hereinafter referred to as the "City "), having determined that the financial, legal, and technical ability of METRICOM, INC. ( "METRICOM ") is reasonably sufficient to provide services, facilities, and equipment necessary for a state of the art wireless and wired telecommunication system, does hereby ordain as follows: SECTION I DEIFINITION OF TERMS 1.1 TERMS. For the purpose of this License, the following terms, phrases, words, and abbreviations shall have the meanings ascribed to them below. When not inconsistent with the context, words used in the present tense include the future tense, words in the plural number include the singular number, and words in the singular number include the plural number: a. "Affiliate" means an entity, which owns or controls, is owned or controlled by, or is under common ownership with Grantee. b. "City" means the City of Euless, Texas or the lawful successor, transferee, or assignee thereof. C. "Communication Service" shall mean any wireless communication services provided by Grantee over its "Communication System" (as hereinafter defined). Communication Service shall not include cable television services or an open video system as defined under the federal law or local exchange telephone service or other certificated telecommunications services, as certificated by the Public Utility Commission for which a separate license would be required to provide such services. d. "Communication System" shall mean Grantee's Richochet microcelIular data transmission system of poletop radio receivers /transmitters, modems, and any associated converters, equipment or facilities designed and constructed for the purpose of producing, receiving, amplifying or distributing data packets by forms of electronic or electric signals to or from subscribers or locations within the City. e. "FCC" means Federal Communications Commission or successor governmental entity thereto. f. "Grantee" means METRICOM, INC., a Delaware corporation, or the lawful successor, transferee, or assignee thereof, with the consent as required in this agreement. g. "Gross Revenue" shall mean all receipts collected by Grantee from customers with billing addresses to include zip code plus four digits with the corporate limits of the City for all communications and communication- related operations and services within the corporate limits of the City as well as any other revenue arising from operation or possession of this License. By way of example, but without limitation, "Gross Revenue" includes all revenues from the sale or lease of customer premise equipment, installation charges, access charges paid to Grantee by other carriers, charges to customers, subscribers and other users of the Communication System, license fees and occupation taxes surcharged to customers, and the lease or re -sale of lines or circuit paths to third parties. "Gross Revenue" does not include (i) revenues uncollectible from customers (bad debts), (ii) discounts, (iii) state, local, or federal taxes, or (iv) the license fee payable to the City pursuant to 4.1.2(a) below. h. "Person" rneans an individual, partnership, association, joint stock company, trust, corporation, or governmental entity. i. "Public Way" shall mean the surface of, and the space above, any public street, highway, freeway, bridge, land path, alley, court, boulevard, sidewalk, parkway, lane, public way, drive, circle, or other public right -of -way, including, but not limited to, public utility easements, dedicated utility strips, or rights -of -way dedicated for compatible uses and any temporary or permanent fixtures or improvements located thereon now or hereafter held by the City in the Service Area which shall entitle the City and Grantee to the use thereof for the purpose of installing, operating, repairing, and maintaining the Communication System. Public Way shall also mean any easement now or hereafter held by the City within the Service Area for the purpose of public travel, or for utility or public service use dedicated for compatible uses, and shall include other easements or rights -of -way as shall within their proper use and meaning entitle the City and Grantee to the use thereof for the purposes of installing or transmitting Grantee's Communication 2 Services over poles, wires, cables, conductors, ducts, conduits, vaults, manholes, amplifiers, appliances, attachments, and other property as may be ordinarily necessary and pertinent to the Communication System. Public Way shall not include any portion below any public street, highway, freeway, bridge, land path, alley, court, boulevard, sidewalk, parkway, lane, public way, drive, circle, or other public right -of -way. j. "Service Area" means the present municipal boundaries of the City, and shall include any additions thereto by annexation or other legal means. k. "Subscriber" or "Customer" means a person or user of the Communication System with a billing address within the corporate limits of the City, who lawfully receives Communication Services or other service therefrom with Grantee's express permission. SECTION 2 GRAM' Oh LICENSE 2.1 GRANT. The City hereby grants to Grantee a nonexclusive License which authorizes Grantee to constrict and operate its Communication System and offer Communication Services in, along, among, upon, across, above, over, or in any manner connected with Public Ways within the Service Area and for that purpose to erect, install, construct, repair, replace, reconstruct, maintain, or retain in, on, over, upon, across, or along any Public Way and all extensions thereof and additions thereto, such wires, cables, conductors, conduits, amplifiers, appliances, attachments and other related property or equipment as may be necessary or appurtenant to the Communication System. 2.2 LIMITED GRANT. This grant of authority to provide the services described herein shall be limited solely to those services expressly described and no others. In the event of any ambiguity, this agreement shall be strictly construed as to the rights granted herein. 2.3 DUTY NOTIFY OF CHANGE. Grantee represents that the Communication System will be utilized exclusively for the rendering of Communication Services. If the nature or character of Communication Services changes in any manner in the future to include the offering of telecommunication or other services not expressly permitted under this License or if there is an increase in the size or number of any poletop radio transmitter /receiver (or like above- ground apparatus) than was contemplated in the adoption of this License, as described in the application, then Grantee shall notify the City in writing as soon as practicable. Such notice shall be served at least sixty (60) days prior to the effective date of any change in the nature or character of the Communication Services or in the poletop radios (or like above - ground apparatus). 3 2.4 COMPLIANCE WITH CITY REQUIREMENTS. Except as expressly provided otherwise herein, Grantee shall comply with all applicable City ordinances, resolutions, standards and procedures, as now or hereafter adopted, to the same extent as any other person or entity doing business within the City. 2.5 TERM. The License granted herein shall be for a term of five (5) years from the effective date of the License as set forth in Section 2.6, unless otherwise Iawfully terminated in accordance with the terms and conditions of this License. 2.6 ACCEPTANCE; EFFECTIVE DATE. Grantee shall accept the License granted pursuant hereto by signing this License and filing same with the City Secretary or other appropriate official or agency of the City within thirty (30) days after the passage and final adoption of this License. Subject to the acceptance by Grantee, the effective date of this License shall be the thirtieth (30) day after its passage. If not accepted within thirty (30) days, this agreement shall be null and void and of no effect and no license shall exist between METRICOM and the City. SECTION 3 REGULATION OF THE USE OF PUBLIC WAYS 3.1 CONDITIONS OF STREET OCCUPANCY. All transmission and distribution structures, poles, other lines, and equipment installed or erected by Grantee pursuant to the terms hereof shall be located so as to cause a minimum of interference with the proper use of Public Way and with the rights and reasonable convenience of property owners who own property abutting any of said Public Ways. 3. 1.1 APPROVAL OF PLANS AND SPECIFICATIONS. Grantee shall provide complete plans and specifications for all construction within streets to the designated City official for their review at least thirty (30) days prior to the start of any construction during the term of this License. In the event of rejection, Grantee shall submit revised plans and specifications for approval. This provision shall apply to each constriction sequence if the construction is accomplished in phases. All such construction shall comply with all applicable ordinance(s), including ordinances which may be adopted after the date of this License. "All applicable ordinances" shall include, but are not limited to, building and fire codes and zoning regulations. Such construction and this License shall be expressly subject to all deeds, easements, dedications, conditions, covenants, restrictions and encumbrances which may affect the Public Ways. 3.1.2 MAPS. Grantee shall provide the City with a map (of general specificity) showing the approximate location of major components of Grantee's Communication System within the City which is attached hereto or will be attached hereto as Exhibit A. Upon written request of the City, Grantee shall update such map to reflect actual or anticipated improvements to the system. Any such map (or update thereof) so submitted shall be for informational purposes 2 only and shall not obligate Grantee to undertake any specific improvements, nor shall such map be construed as a proposal to undertake any specific improvements. Grantee shall submit such map (and updates thereof) to the City in "GIS" format, unless such map (or updates thereof) cannot be prepared in a commercially reasonable manner in such format. 3.2 RESTORATION OF PUBLIC WAYS. If during the course of Grantee's construction, operation, or maintenance of the Communication System there occurs a disturbance of any Public Way by Grantee, it shall, at its expense, replace and restore such Public Way to a condition reasonably comparable to the condition of the Public Way existing immediately prior to such disturbance. 3.3 RELOCATION AT REQUEST OF CITY. Upon its receipt of reasonable advance notice, not to be less than thirty (30) business days, Grantee shall, at its own expense, protect, support, temporarily disconnect, relocate in the Public Way, or remove from the Public Way, any property of Grantee when required by City by reason of traffic conditions, public safety, street abandonment, freeway and street construction, change or establishment of street grade, installation of sewers, drains, gas or water pipes, or any other type of structures or improvements by the City; but, Grantee shall in all cases have the right of abandonment of its property. 3.4 RELOCATION AT REQUEST OF THIRD PARTY. Grantee shall, on the request of any person holding a building moving permit issued by the City, temporarily raise or lower its wires to permit the moving of such building, provided; (a) the expense of such temporary raising or lowering of wires is paid by said person, including, if required by Grantee, making such payment in advance; and (b) Grantee is given not less than fourteen (14) business days advance written notice to arrange for such temporary wire changes. 3.5 VEGETATION MANAGMENT. Grantee and the City agree in principle to a line clearance standard that balances the aesthetic needs of the community while enhancing service reliability. Grantee's commitment is to respond promptly to City - identified tree - related hazards. Grantee shall reasonably compensate the property owner of any damages caused by such trimming, or shall, in its sole discretion and at its own cost and expense, reasonably replace all trees or shrubs damaged as a result of any construction of the System undertaken by Grantee. Such replacement shall satisfy any and all obligations Grantee may have to the property owner pursuant to the terms of this Section 3. 3.6 SAFETY REQUIREMENTS. Construction, installation, and maintenance of the Communication System shall be performed in an orderly and workmanlike manner. all such work shall be performed in substantial accordance with applicable FCC or other federal, state, and Iocal regulations. The Communication System shall not unreasonably endanger or interfere with the safety of persons or property in the Service Area. 5 3.7 ABOVE GROUND CONSTRUCTION. Unless agreed to in writing by both City and Grantee, or approved by the appropriate body of the City, no communication system shall be erected or operated on any above ground poles, facilities or structure except these now or hereinafter owned or leased by one of the City's franchised public utilities, or as provided in section 3.8.2 below. 3.8 USE, RENTAL OR LEASE OF UTILITY POLES AND FACILITIES. 3.8.1 There is hereby granted to Grantee the authority to contract with the City or any appropriate board or agency thereof or with the holder or owner of any utility license in the City for the use, rental or lease of its or their poles and other strictures and facilities for the purpose of supporting or carrying Grantee's Radios, wires, cables, electronic conductors and other facilities and appurtenances necessary or desirable in conjunction with the operation of its Communication System. The City agrees that any public utility owning or controlling such poles or strictures may, without amendment to its license, allow, and is encouraged to allow, Grantee to make such use thereof pursuant to any agreement reached between such utility company and Grantee. 3.8.2 Grantee may request space in the City -owned poles and structures as may be available; however, such permission is within the sole discretion of the City and must be granted in writing. SECTION 4 COMPENSATION TO CITY 4.1 PAYMENT TO CITY. 4.1.1 ADMINISTRATIVE FEE. An administrative fee is assessed Grantee as consideration for the administrative processing cost incurred in the initial adoption of this License, and for the continued monitoring and enforcement of same. Grantee agrees to pay the City an administrative fee of Two Thousand Dollars ($2,000) upon acceptance of the Ordinance (with a credit of $850.00 from the application fee). Nothing herein shall preclude the City from recovering any administrative costs incurred by the City in the approval of permits or in the supervision, inspection or examination of all work by Grantee in the Service Area as prescribed in accordance with applicable ordinances or laws. 4.1.2 PUBLIC WAY USE FEE LICENSE FEE AND LATE PAYMENT CHANGE. a. The City finds that the public streets, alleys and rights -of way to be used by Grantee in the operation of its Communication System within the boundaries of the City are valuable public properties, acquired and maintained by the City at great expense to R its taxpayers, and that the grant to Grantee of the use of said public streets, alleys and rights -of -way is a valuable Property right, without which Grantee would be required to invest substantial capital in right -of -way costs and acquisitions, therefore, Grantee agrees to pay to the City as general compensation for the use of the Public Way during each year of this License ordinance, an amount equal to five (5 %) of Gross Revenues as defined in Section 1.1 herein, or $125.00, whichever is greater, as an on -going administrative fee, for each quarter of each calendar year. b. Grantee shall pay an amount equal to this quarterly payment by the fifteenth (15th) day of the second calendar month immediately following the close of the calendar quarter for which the payment is calculated. Any necessary prorations shall be made in the first and last year of the License. c. In the event any quarterly payment is made after noon on the date due, Grantee shall pay a late payment penalty of the greater of: (i) One Hundred Dollars ($100) or (ii) simple interest at a ten percent (10 %) annuaI percentage rate on the total amount past due. d. Grantee shall obtain on all billing addresses in the City the zip code plus four digits. 4.2 QUARTERLY REPORT. In order to properly determine the Gross Revenues received by Grantee, Grantee agrees that on the same date that each quarterly payment is made, it will file with the Director of Finance a sworn copy of a report, in a form acceptable to the City, in sufficient detail to itemize revenues from each of the revenue categories. The City may, if it sees fit, have the books and records of Grantee examined by a representative of said City to ascertain the correctness of the reports agreed to be filed herein. Neither the acceptance of any payment nor any subsequent review shall be deemed an agreement by the City that the correct payment was paid, absent a fully authorized release by the City on any such payments or on such reports. 4.3 RECALCULATION AT END OF COMPENSATION YEAR. At the end of each calendar year, Grantee shall recalculate the total general compensation actually due. If additional amounts are due the City by Grantee, said amounts shall be paid by the fifteenth (15th) day of February following the calendar year during which such amounts were originally due. If amounts are found to be due Grantee by the City, said amounts shall be credited by the fifteenth (15th) day of February during which such amounts were originally due. Any necessary prorations shall be made. 4.4 TAXES ARE NOT TO BE CREDIT. The compensation paid under this License shall be exclusive of and in addition to all special assessments and taxes of whatever nature, including, but not limited to, ad valorem tax, sales tax, corporate or business occupation taxes or other taxes or fees imposed or levied by any governmental entity. 7 4.5 RIGHTS OF CITY. Payment of money under this License shall not in any way limit or inhibit any of the privileges or rights of the City, whether under the License or otherwise. 4.6 ANNUAL REPORT. Grantee shall file annually with the Director of Finance no later than ninety (90) days after the end of Grantee's fiscal year, a certified statement of revenues (for that year) attributable to the operations of Grantee's system, within the City pursuant to this License ordinance. This statement shall present a detailed breakdown of Gross Revenues and uncollectible accounts for the year. 4.7 CIRCUMVENTING PAYMENTS. Any transaction(s) which have the effect of circumventing payment of the required license fees and/or evasion of payment of license fees or any payments due the City under this License by non - collection or non - reporting of Gross Revenues, bartering, or any other means which evade the actual collection of revenues for business pursued by Grantee are prohibited. 4.8 TRANSFER OF LICENSE. Grantee's right, title, or interest in the License shall not be sold, transferred, assigned, or otherwise encumbered, other than to an Affiliate, without the prior consent of the City, such consent not to be unreasonably withheld. No such consent shall be required, however, for a transfer in trust, by mortgage, by other hypothecation, or by assignment of any rights, title, or interest of Grantee in the License or Communication System in order to secure indebtedness. SECTION 5 ACCOUNTS, BOOKS AND RECORDS 5.1 CITY TO BE INFORMED. Grantee shall keep the City fully informed as to all matters in connection with or affecting the construction, reconstruction, removal, maintenance, operation and repair of Grantee's system, Grantee's accounting methods and procedures in connection therewith, and the recording and reporting by Grantee of all revenues and uncolIectibles. Grantee shall report to the City such other information relating to Grantee as the City may consider useful and shall comply with the City's determination of forms for reports, the time for reports, the frequency with which any reports are to be made, and if reports are to be made under oath. 5.2 ACCOUNTS. Grantee shall keep complete and accurate books of account and records of its business and operations pursuant to this License ordinance in accordance with genet-ally accepted accounting principles, subject to review and approval by the City. The City may require the keeping of additional records or accounts which are reasonably necessary for purposes of identifying, accounting for, and reporting gross revenues and uncollectibles for purposes of Section 4 hereof. Grantee shall keep its books of account and records in such a way that breakdowns of revenues are available by type of service within the City. N. 5.3 ACCESS TO RECORDS. Grantee shall provide the City with access at reasonable times and for reasonable purposes, to examine, audit, review and /or obtain copies of the papers, books, accounts, documents, maps, plans and other records of Grantee pertaining to this License ordinance. Grantee shall fully cooperate in making available its records in Tarrant County, and otherwise assisting in these activities. 5.4 INQUIRES TO GRANTEE. The City may, at any time, make inquiries pertaining to Grantee's operation of its System within City. Grantee shall respond to such inquiries on a timely basis. SECTION 6 INSURANCE INDEMNIFICATION, AND BONDS OR Orl H ER SURVEY 6.1 INSURANCE REQUIRMENTS. Grantee shall maintain in full force and effect, at its own cost and expense, during the term of the License, Comprehensive General Liability Insurance in the amount of One Million Dollars ($1,000,000) combined single limit for bodily injury, and property damage. Said insurance shall designate the City as an additional insured. Such insurance shall be noncancellable except upon thirty (30) days' prior written notice to the City. 6.2 INDEMNIFICATION. Grantee agrees to indemnify, save and hold harmless, and defend the City, its officers, boards and employees from and against any liability for damages and for any liability or claims resulting from property damage or bodily injury (including accidental death), which arise out of Grantee's construction, operation, or maintenance of its Communication System, including, but not limited to, reasonable attorney's fees and costs. Grantee further agrees not to oppose intervention by the City in such a suit, however, any intervention will be at the City's sole cost and expense. 6.3 BONDS AND OTHER SURETY. Except as expressly provided herein, Grantee shall not be required to obtain or maintain bonds or other surety as a condition of being awarded the License or continuing its existence. In order to minimize such costs, the City agrees to require bonds and other surety only in such amounts and during such times as there is a reasonably demonstrated need therefor. The City agrees that in no event, however, shall it require a bond or other related surety in an aggregate amount greater than Two Hundred Thousand Dollars ($200,000), conditioned upon the substantial performance of the material terms, covenants, and conditions of the License. Initially, no bond or other surety will be required. In the event that one is required in the future, the City agrees to give Grantee at lease thirty (30) days prior written notice thereof stating the reason for the requirement. Such reason must demonstrate a change in Grantee's legal, financial, or technical qualifications which would materially prohibit or impair its ability to comply with the terms of the License or afford compliance therewith. 9 SECTION 7 ENFORCEMENT AND TERMINATION OF LICENSE 7.1 NOTICE OF VIOLATION. In the event that the City believes that Grantee has not complied with the terms of the License, it shall notify Grantee in writing of the exact nature of the alleged noncompliance. 7.2 GRANTEE'S RIGHT TO CURE OR RESPOND. Grantee shall have thirty (30) days from receipt of the notice described in 7.1: (1) to respond to the City contesting the assertion of noncompliance, (2) to cure such detail, or (3) in the event that, by the nature of default, such default cannot be cured within the thirty (30) day period, initiate reasonable steps to remedy such default and notify the City of the steps being taken and the projected date that they will be completed. 7.3 PUBLIC HEARING. In the event that Grantee fails to respond to the notice described in Section 7.1 pursuant to the procedures set forth in Section 7.2, or in the event that the alleged default is not remedied with thirty -one (3 1) days after Grantee is notified of the alleged default pursuant to Section 7. 1, the City shall schedule a public meeting to investigate the default. Such public meeting shall be held at the next regularly scheduled meeting of the City which is scheduled at a time which is no less than five (5) business days therefrom. The City shall notify Grantee of the time and place of such meeting and provide Grantee with an opportunity to be heard. 7.4 ENFORCEMENT. Subject to applicable federal and state law, in the event the City, after such meeting, determines that Grantee is in default of any provision of the License, the City may: a. Foreclose on all or any part of any security provided under this License, if any, including without limitation, any bonds or other surety; provided, however, the foreclosure shall only be in such a manner and in such amount as the City reasonably determines is necessary to remedy the default; b. Commence an action at law for monetary damages or seek other equitable relief; c. In the case of a material breach of the License, declare the License Agreement to be revoked; or d. Seek specific performance of any provision, which reasonably lends itself to such remedy, as an alternative to damages. E Grantee shall not be relieved of any of its obligations to comply promptly with any provision of the License by reason of any failure of the License Authority to enforce prompt compliance. 7.5 ACTS OF GOD. Grantee shall not be held in default or noncompliance with the provisions of the License, nor suffer any enforcement or penalty relating thereto, where such noncompliance or alleged defaults are caused by strikes, acts of God, power outages, or other events reasonably beyond its ability to control. SECTION 8 MISCELLANEOUS PROVISIONS 8.1 ACTIONS OF CITY. In any action by the City or representative thereof mandated or permitted under the terms hereof, such party shall act in a reasonable, expeditious, and timely manner. Furthermore, in any instance where approval or consent is required under the terms hereof, such approval or consent shall not be unreasonably withheld. 8.2 NOTICE. Unless expressly otherwise agreed between the parties, every notice or response to be served upon the City or Grantee shall be in writing, and shall be deemed to have been duly given to the required party five (5) business days after having been posted in a properly sealed and correctly addressed envelope by certified or registered mail, postage prepaid, at a Post Office or branch thereof regularly maintained by the U.S. Postal Service. The notices or responses to the City shall be addressed as follows: Mr. Joe C. Hennig, City Manager City of Euless 201 N. Ector Drive Euless, TX 76039 The notices or responses to Grantee shall be addressed as follows: METRICOM, INC. Attn: Network Real Estate Department 980 University Avenue Los Gatos, CA 95032 License Authority and Guarantee may designate such other address or addresses from time to time by giving notice to the other. 8.3 DESCRIPTIVE HEADINGS. The captions to sections contained herein are intended solely to facilitate the reading thereof. Such captions shall not affect the meaning or interpretation of the text herein. 8.4 SEVERABILITY. If any section, sentence, paragraph, term, or provision hereof is determined to be illegal, invalid, or unconstitutional, by any court of competent jurisdiction or by any state or federal regulatory authority having jurisdiction thereof, such determination shall have no effect on the validity of any other section, sentence, paragraph, term or provision hereof, all of which will remain in full force and effect for the term of the License, or any renewal or renewals thereof. 8.5 ACTION BY THE FCC. In the event federal or state law or the FCC imposes more stringent notice requirements, technical standards, consumer protection or consumer services requirements that are contained in this agreement, those more stringent requirements shall prevail. The City shall give reasonable notice when in their determination that has occurred. Grantee shall retain and not waive any or all rights and privileges as afforded either under this contract or pursuant to Federal Law or FCC regulations to complain and/or appeal such a determination. 8.6 TELECOMMUNICATIONS PROVIDER SERVICES. Notwithstanding any other provision in this License, in the event a state or federal agency or a court of competent jurisdiction determines that Metricom is a telecommunications provider under either federal or state law, which requires the City to treat them as other telecommunications providers in direct competition on a competitively - neutral basis, the City shall, upon sixty (60) days' notice, amend this agreement to incorporate the same terms that have been offered to other similarly situated telecommunications providers in the City limits of the City. PRESENTED AND APPROVED ON THE FIRST AND FINAL READING this 27th day of April, 1999, at a regular meeting of the City Council of the City of Euless, Texas, by a vote of 7 ayes, 0 nays, and 0 abstentions. ATTEST: �usah Crim, rty Secretary AS TO FORM: ob McFarland, City Attorney Mary Lib Sal h, Mayor 12 Accepted and agreed to this to applicable federal, state and local law. c %my Jacumcnt+lurJlnwtriarm urd.Joc day of 1AAl` 18 1999 , 1999, subject METRICOM, INC. sy: Name: Lee padze Title: --Sen ior Vice President, Reld Operations Group 13 Approved As To Form ROW t_ al Departm� t BY: r � Date: c�