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CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
Date: October 8, 1998
OR'~~.'AL
Ii "''II IV
Subject: Resolution authorizing the execution
of an agreement with Metricom, Inc., for the
installation of wireless digital radio receivers in
the public right of way
From: Lori Sassoon, Assistant to the
City Administrator
Dept: City Administrator's Office
Synopsis of Previous Council action:
Recommended motion:
Adopt resolution.
!~.~ ~
Signature
Contact person: Lori Sassoon
Phone: 5122
Supporting data attached: Yes
Ward: All
FUNDING REQUIREMENTS:
Amount: $19,500 - $54,500 annually in potential General Fund
revenue
Source: fAcet. No.)
(Acct. Description)
Finance:
Council Notes:
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STAFF REPORT
Metricom, Inc., has requested permission to install its wireless modem network in the public
right of way. This resolution would authorize the Mayor to execute a license agreement with
Metricom for this purpose, bringing potential revenue of$19,500 to $54,500 annually to the
General Fund.
Metricom Wireless Data Svstems
Metricom's Ricochet network provides wireless data services to its subscribers. Subscribers use
a special modem in their PC, laptop, or palmtop computer, which transmits a radio signal to the
network of radio receivers that are located overhead on streetlight and utility poles. The service
allows for connection to the Internet at speeds of up to 128 Kbps without the phone line used
with a traditional modem. Subscribers pay a flat fee of $29.95 per month, with no per-minute
charges. This allows subscribers to remain connected 24 hours per day (if they choose) at no
additional cost.
The Ricochet network is already operational in the San Francisco, Seattle, and Washington, D.C.
metropolitan areas, as well as in airports throughout the country. Metricom is now establishing a
network in southern California, and seeking licensing agreements with all Los Angeles, Orange,
and San Bemardino counties and cities.
Terms of the AlUeement
Highlights of the proposed license agreement are as follows:
tJ In return for the use of City-owned property, Metricom will pay an annual pole use fee of
$60 per radio for a total of$19,500 - 22,500 per year to the General Fund, depending upon
the number of radios installed.
tJ Metricom will pay a franchise fee of 5% of gross revenues collected from subscribers in the
City. If the company achieves its estimated market penetration of 1 %, this could total
$32,000 annually.
tJ Wherever possible, Metricom will attach its radios to city-owned light poles rather than
facilities owned by SCE. This will maximize the amount of revenue received by the City in
annual pole use fees.
tJ The agreement is non-exclusive. If required, the radios can be co-located with other facilities
that may be installed by other companies in the future.
tJ Metricom will obtain all appropriate construction and encroachment permits from
Development Services, as well as a business license.
tJ The agreement specifies that the City will not incur any additional electricity costs.
Metricom has an agreement with SCE to pay the utility directly for electricity costs.
tJ The agreement is for five years, with two renewals.
Installation of Radio Receivers
Upon approval of the agreement, Metricom will begin deployment of the radio network. The six
pound radio receivers are mounted to street light poles, and an antenna extends downward
approximately 12 inches (see attached photos). The Ricochet network requires an estimated 4-5
radios per square mile, depending upon topographical conditions. In San Bernardino, Metricom
estimates that 325 to 375 radios will need to be installed. The City has a total of approximately
9,000 street lights, so these radios will occupy approximately 3% of all light poles.
Each radio receiver uses electricity from the street light on which it is mounted. Development
Services staffhas reviewed the power requirements, and the radios should not interfere with the
normal operation of the street lighting system. If, however, there were to be issues with a
particular unit affecting street lighting or any other public or private facilities, the agreement
requires Metricom to respond and relocate the receivers at their cost.
Installation of radios will be completed by licensed and bonded sub-contractors, who are
required to purchase City business licenses and permits. They must also abide by construction
standards as may be required by Development Services. According to Metricom's right of way
representative, Richard Bartoccini, the contractors have safely completed tens of thousands of
radio installations.
The Council will recall that installation offacilities on street lights was discussed previously
concerning decorative banners. Staff believes that since Metricom is providing a new service to
the community, and since the City will benefit from additional revenue, the installation is
appropriate.
Recommendations
It is recommended that the Mayor and Council approve the resolution authorizing the Mayor to
execute a license agreement with Metricom, Inc.
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[EXHIBIT B)
[PROPOSED RADIO LOCATIONS)
PROPOSED LOCATIONS TO BE PROVIDED
AFTER REVIEW OF STREET LIGHT MAPS
AND PRIOR TO DEPLOYMENT
[EXHIBIT C]
[FORM OF SURETY BOND]
Bond Number:
SURETY BOND
KNOW ALL MEN BY THESE PRESENTS:
That METRICOM, INC. as Principal, and , incorporated
under the laws of the State of , and authorized to execute bonds and
undertakings as sole surety, are held and firmly bound unto , as
Obligee, in the sum of . ($ ); for the payment thereof,
well truly to be made, said Principal and Surety bind themselves, their administrators, successors
and assigns, jointly and severally, firmly by these presents.
The condition of the foregoing obligation is such that:
WHEREAS, the above bounden Principal is about to enter into a certain agreement with the
Obligee for the following: , the award of
which said agreement was made to the Principal by the Obligee, on
NOW THEREFORE, if the Principal shall well, truly and faithfully perform its duties, all
the undertakings, covenants, terms, conditions, and provisions of said agreement during the
original term thereof, and any extensions thereof which may be granted by the Obligee, with or
without notice to the Surety, and ifhe shall satisfy all claims and demands incurred under such
agreement, and shall fully indemnify and save harmless the Obligee from all costs and damages
which it may suffer by reason of failure to do so, and shall reimburse and repay the Obligee all
outlay and expenses which the Obligee may incur in making good any default, then this
obligation shall be void; otherwise to remain in full force and effect.
PROVIDED, FURTHER, that the said Surety, for value received, hereby stipulates and
agrees that no change, extension of time, alteration or addition to the terms of the agreement or
to the work to be performed thereunder or the specifications accompanying the same shall in any
way affect its obligation on this bond, and it does hereby waive notice of any such change,
extension of time, alteration or addition to the terms of the agreement or to the work or to the
specifications.
MelncoM Ilona rorm
page c./ of/
PROVIDED, HOWEVER, this bond is issued subject to the following express
conditions:
1. This bond shall be deemed continuous in form and shall remain in full force and effect
until canceled under Section , after which all liability ceases except as to any
liability incurred or accrued prior to the date of such cancellation.
2. The aggregate liability of the Surety hereunder on all claims whatsoever shall not exceed
the penal sum of this bond in any event.
3. The surety reserves the right to withdraw as surety from this bond, except as to any
liability incurred or accrued, and may do so upon giving the Obligee sixty (60) days
written notice.
SIGNED AND SEALED .this
day of
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PRINCIPAL
SURETY
(Type Company Name)
By:
By:
Title:
Title:
By:
Address:
Telephone:
(Affix Corporate Seals)
(Attach Acknowledgments of both Principal and Surety signatures)
melncom Dona rorm
pageC-2.f2
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RICOCHET@ BY METRICOM~:
BETTER WIRELESS DATA SERVICES
FOR YOUR COMMUNITY
wfie
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"Hd:'irzg Ricocha m~.lrIs that th~ students
,It .H,z/colm X EI~merzt"ry ,Ire able to
~lcce)j d ~:ery cruci~d rese~lrch ~md
communic..ltionj tool. .znd. ultim'ttely,
b~com~ better lif~lorzg le.lmers.'
DR. ]OH:>I P'-'iNELL. PRI:"CIPAL
:-'LUCOL~I X ELE~IE:''-T.'<RY. W-\5HINGTON, D.C.
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Metricom
RICOCHET BY METRICOM
Would you like to offer your community
low-cost, high-speed online access - with
no cabling, trenching or public investment?
Metricom's twelve-year track record speaks for
itself. Our experience enables us to offer the
fastest and most reliable mobile data services in
the industry. Leapfrogging current performance
standards, our new network will provide your
constituents wireless Internet, e-mail, and local
area network access at speeds up to 128 Kbps -
comparable to expensive ISDN connections.
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.San Jose is known throughout the world as the
C.:lpitol of Silicon Valley. We have earned this
distinction, not only be~;tse ~~e house the nation'i
top high-tech j:rms in our o'U:n bac.~yard, but
because ,u:e use the latest st..lte-of-the-art technology
in our day-to"day operations. Our police ,md fire
teams, fin.:lnce department, libraries, and [mer-
rutiona! ,A.;"ryon man..:ge,~~n: ;tse J! ~;r:com 's
u'ire!ess d..trwt net-u'ork :0 .zecess ;'ntoT"7'Z~uion and
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:\LWOR SL-S.~" H.\.\!:-.lER
CITY OF S.~" ]O'5E
WIRELESS
With Ricochet service. inspectors can issue permits
from the field, mobile libraries can have Internet
;Kcess, cities can monicor and control ucility
functions remotely, attorneys can check e-mail
from the counhouse. realtors lnd contractors can
keep in touch with their offices. Grandparents can
communicate with loved ones online. The uses are
practically limitless!
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SIMPLE
Because Metricom's Ricochet poletop radios are so simple to
install, bringing wireless Internet access to public services,
schools, and corporate tenants becomes much easier - even in
areas where it would be difficult to provide additional cabling.
Many small and large corporations use Ricochet wireless
technology extensively. They appreciate the t1exibility oi being
able to relocate data lines without rewiring.
A~
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Seattle City Light
.' _" _ fzeld crews ;a'1/e time tryl
using Ricochet to log onto their internal net'1l.'or.~
.lnd 00':";:';"; ;.-:-iric..ll T~~::'r infonr',dtion from remote :ocu;'onj",
SE.\7T"....Z em' LrcF-IT. PO~R LTILm" CO~I:P.\""r'
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VALUABLE
Many government agencies already use Ricochet.
including local post offices, public schools. and city
councils. Residents can order stamps using the s~'stem
and can participate in wireless city council meetings.
Seniors can enjo,' e-mail and communicate with loved
ones far awav. With laptops and Ricochet modems in
squad cars, police departments can file reportS from the
field, allowing squad cars to spend more time on patrol.
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CONVENIENT
Because of our unique network design and patented
routing technology, Ricochet users do not experience the
well-publicized busy signals that cause an uproar among
users of other popular online services and wired Internet
service providers. Our packet-switched system uses
available radio frequencies so efficiently that it's easy
to add additional users onto the same channel.
Expanding network capacity and coverage is as simple
as mounting new radios. And because the Ricochet
network is completely private to the point it reaches
the Internet, we provide unmatched wireless security
through RSA encryption.
Low UJPACT
Greater demand for Internet access, fax lines, and
additional phone service has placed a significant
burden on existing phone capacity. Increasing
bandwidth for these technologies typically involves
J significant infrastructure upgrade. Nletricom,
however. simply installs small radio transceivers on
streetlight and utility poles, at no cost to your
wmmunity. These shoebox-sized radios
ha\'e low visual or environmental
impact. It's the fastest, easiest way
to increase available bandwidth
for data services - without
trenching, cables or street hardware.
We are proud to offer a technology that
has such little impact on vour neighborhood,
Radios are generally mounted on less than J% of
poles in a given region, and operate in the public
spectrum, similar to devices like garage door openers
and babv monitors.
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the phone lines were set ;ip, in the past,
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EXPANDING
Hundreds of communities like yours have given
Metricom right-of-way approval. We have installed
thousands of streetlight radios, providing access to
some of the country's most technologically advanced
institutions - organizations like Microsoft and the
NASA - Ames Research Center, and universities like
Stanford and George Washington University.
~[unicipal employees use our services in growing
numbers. ~'e continue to gain new subscribers in the
San Francisco Bay Area, Seattle, and Washington,
D.C. regions and also offer coverage to many
copo~ate ca_mpuses and airpo.rtS throughout the
nation.
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O p POP' ~ . ' \' T ~ - .
.. .IL. .11
We're offering vou a unique public-private
opportUnity to bring your ~ommunity new
WJ:"S of ~ommunic;l[ing - without wires.
A simple rigfu-of-wav approv.lI is .,II it takes
to get on board. With the RicGcnet netwGrk
and wireless technGlogv. vou can be online
.lo::time. .ln~"".here. Prepare your .:ommunity
for greJ.ter producrivit;( with Ri~oche[
hign-speed wireless communications from
Metricom.
.4. represenl4ui'7:e :;:ill cont~lcr you co discus;,' ow.
ngbc-oJ~:':"ay .IPplic.uion.
For more informacion on the Ricochet system by
Jletricom, see U:J' onLine "z{ i.:,."7.:.':;,',metncom.com,
Or e-m.lil requests to: rightof:.:;.l)'@ricochet.nec.
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che: wirdc:ss ,del.::ommuni":,1rions inJuscn:
RJJio'i .m: insc.lllc:d in hundreds of
muni..:ip.liicies .t..:ross che: C. S.
. ThousJ,nds ut 'i.Hisfic:d 'iubs.::-ibc:rs preta
Ri';ll\;het over wire 'tine scr\"i.:es
E.\SE OF .\D~!D<15TR.\TION
. EJ...:h rJJio inst.llled bv '\'lecricom in minutes
. .\IinimJI maimen.1nce'or ongoing:
.tJministr,uion required
Lo~ .\EST:-o:E"C ~lP.-\CT
Shocbox-siud r.ldios Jrt: mounted oJO
t:Xlsnn:.::; ,Cnll:rures
Typi..:.tTly. no more chJn seven rJdios insulleJ
per sqUJre mile, less than 3% of streeclighr
poles per region I
:'\io trenching, "::.lbling or street hardware
E.\i"lRON:I<lE:-''T.\l. SAFETY
.-\urhoriuJ by the: FCC co operJt!: tn the
publi~ ipCl.:trum under Part 15 of FCC rules;
0th~r P,ut 13 Jevil.:cs indude gJrage door
\)pl.'nl.'rs .\nJ b.lb~- monitors
Br::-''EFITS 70 YOL'R CO:--05T:,1.:,::-.-n
IX'ireless freedom
Tr.wd:s <.vith your iJpwp or hJ.nJhdJ Jc:yice
\;"0 need to insulI ..in e~tr.l phone line
Send e-m.liI without eying; up .\ phone line
Sr,lY in wUl.:h online. rClprdll.'ss 0f location
Unlimited .tccess
5u,- online 2~ hours J. d;lV
~~ busy signals .
:'\io Jropped ...:onnC'l.:tions
L01i.' flat.rate pricing
\il) J.irrimc: ...:harges
. :"io billing; lurprises
Com..'enimt technology
ISD:'\l' speed - performance ...:ompar;1ble to
wire line solutions
CompJtible with desktop. iJptop or hJndheld
computer devices
RSA security - safe J.gainst ea....esdropping;
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P'.... R()'~.:.;,<l!C
Metricom, Ine.
(NASDAQ:
MCOM), founded
in 1985, is the leader
in wireless daca
commurucauons
technology, and
develops and
markets the
Ricochet wireless
network and
services. Ricochec
offers low-cos!,
high-pertormance,
and ~asy.to.use
data communi-
cations for a broad
range of personal
and commercial
applications. Our
wireless ser....ice
gives users fasc,
reliable, unlimited
access to the
[ncernec, e-mail.
pnvJte mtranets,
local area networks
(LA:>!s), and online
sen'ices. To learn
more Jbout
Metricom and the
Ricochet service.
visit us online at
www.metncom.comeor www.ricochet.net.
Mc:tricom. Inc.
980 l.: niversicy Avenue
Los G.nos. CA 95032
~C8.399.32~C
v...ww.metncom.~om
www.ricochc:t.net
rightotway@ricochc:t.net
Ii
Metrlcom
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Floating Free
Too many modem hassles when you travel? Cut the line and go wireless.
inco th~ hued phone 5}'stem~ which
may involve' moving furniture ro
locate.:.l jack ..md/or reding QUt .1
long cord. It J.lso means finding ~
loc;)l number for your Imernet .K-
cess provider .lnd programming it
inw your 5ottw;lce. J.long with
whatever dialing codes the hord's
phone requires. .-\nd it may mean
figuring out:.l way to get [he solt-
ware ro dial using your credit card.
so each on-line session doesn't get
priced Jt usurious horel phone
rates. Onl~' then CJ.n you ..:heck
~'our e-mail.
It CJn be even worse .H .11[-
porrs. where those fancy new p;l~'
phones rh.H daim to work \virn
laprops usually don 'c. Even the
phones in the costly J.irline dubs
may be rough ro hook up.
But chen:':) J. way ,Hound .ill
chat hassle: J. wireless modem rhJr
~onnecrs you to the Internet without using
Jny phone lines or telephones, not even
cellular phones. [C'j easy to use, reli;lble
and noc mUl.:h more expensive chan tradi-
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IF YOC'RE..... business traveler,check-
ing into J hord requires more chan gec-
tlng J ke~ JnJ unpal.:king ~Qur dorhes.
You're likely co 'ipend up co In hour
serring up ~our computer ;lnd modem to
work with the hoeel'') phone system-if
you can do so at all.
Thac requires plugging: ~our modem
~ .... II ~!l ~,j.:o-
:;.... .\ it r ~10 'oj E Y
BY WALTER S. MOSSBERG
tional phone connections. It's the Ricochet
Wireless modem, and it comes from an
oumt called Merricom in Los Gatos, Calif.
I've been using a Ricochet fot quite a
while now, and it makes my life easiet
whenever I go to a ciry whete irs wireless
netWork has been deployed. I just check in
to the horel, connect the modem to my lap-
top's serial porr, rum it on and click on an
icon on my screen, and rm usually con.
neered at 28.8 kilobirs per second, the
speed of most regular modems. It's the
same at airports. You can send
e-mail while sitting at the gate or at a table
in a snack bar.
Nor only thar, but you can remain con-
tinuously connCCred to the Internet for as
long as you like, because there's no charge
per ~call" or per minute. So if you set your
software to automatically retrieve e-mail,
you can leave the hotel for a meeting and
find all your messages already down-
loaded when you teturn. And you can go
tight to any Web page you want.
The Ricochet modem I use-the SE-
is a small, black, rectangular unit with a
screen and a foldout antenna that looks
like a linle cell phone, but isn't. It's less
than 5 inches long, 2.3 inches wide and just
an inch thick. and it weighs a mere 8
ounces. These dimensions include the slim
banetv. which lasts from eight to 12 hours.
There's also a small. light AC adaprer. Both
fit easily in a comer of a briefcase.
The modem itself costs $349, about
double the price of a standard model. And
the fee for unlimired monthly use of the in-
ternet and e-mail is $29.95, about 50 per-
cent more than the standard cost of un-
limited access over phone lines, though
you can cut this to $24.92 if you pay for a
year ($299) up front. But if you travel
much. you can save enough on hotel and
credit-card phone charges to more than
make up the difference. And if you live in
an area with Ricochet service, you can use
ir at home and save rhe cost of a dedicat-
ed phone line or of rhe extra traffic on your
main phone line.
Which brings up the principal draw-
back of the Ricochet. It works only with
~letricom' s proprietary wireless network,
which is propagated by small transceivers
that hang from streetlights in cities and
suburbs. That's an expensive setup, and
Metricom has so far built netWorks in on-
ly three metro areas officially, and in a
fourth unofficialIy.
The three advertised cities are San
francisco, Searrle and Washingron, D.C.
I've used my Ricochet in various ciry and
suburban neighborhoods in aU three, with
good resulrs. The Ricochet even worked
fine in rhe Bay Area aU the way down into
Silicon Valley, and in the D.C. area in a
distant Maryland suburb outside the Belt-
way. The fourth ciry is Los Angeles, where
a large swath of rhe Wesrside has been net-
worked for Ricochet as parr of 'a project
for the police. Even rhough this system is
meant for the cops, any Ricochet owner
can use it. I tested it in West Hollywood,
and it worked great.
In addition, Metricom has hooked up
11 airports, even if rhe surrounding cities
aren't yet netWorked. They include airports
in New York (LaGuardia) and Washing-
ton (National), as well as in Minneapolis,
Searrle, Baltimore and Phoenix, and in Cal-
ifornia, San Jose, Oakland, San francisco,
Orange Counry and Los Angeles (LAX).
And a number of small cities in the West
and ylidwest, including Sconsbluff and
Gering in Nebraska and Casper, Wyo., are
gening Ricochet networks.
Metricom is working on serting up sys-
tems in New York (parr of Brooklyn is
unofficially wired already), Detroit,
Philadelphia, Chicago and Boston. But it's
shorr of capital for expansion and is trying
to attraer utiliry and phone companies as
parmets. (It already has a deal with a unit
of Brooklyn Union Gas.) It needs money
for marketing, too. Without a prominent
ad campaign, it has so far signed up only
about 15,000 subscribers.
This is a shame, because rhe modem
and the network really work well. Al-
though Metricom claims rhe modem
achieves speeds of 14.4 to 28.8kbps, de-
pending on location, I've found I almost
always connect at 28.8. It works with lap-
tops and some handheld computers. It al-
so works fine with desktop computers,
.
both PCS and Macs, though you may need
an optional longer cable, as the radio in
the modem can cause desktop monitors to
flicker if they're too close.
There are othet Ricochet modems in ad-
dition to the SE model I use. The older,
somewhat larger Original seUs for S99-
without a banery-for desktop use; the
mobile version runs S299. And an ultra-
thin SX model will arrive later this year for
$379. It's longer and wider than the SE
model, but is just 0.4 inches thick. It's de-
signed to fit under a handheld computer
such as a Philips Velo or Apple Newron,
or to hug the lid of a laptop, attached with
Velero.
Besides the monthly fee, there's a one-
time $45 activation charge. Metricom sup-
plies you with an e-mail address and ac-
count, but you can also use the Ricochet
to access an existing account you may
have with a service provider, company or
universiry. It works fine wirh America On-
line if you serrhe AOL software toconnecr
over a TCP/IP link.
You can use any Web browser or
e-mail software package. Ricochet's sofr-
ware installs a "dialer,'" which doesn't re-
quire a phone number and connects you to
the network almost instantly. lf you use a
Ricochet e-mail account, you can arrange
to access it by regular phone when you' re
not in a Ricochet-networked area, for $5
to $10 a month extra. And you can sign up
for special plans to dial directly inro a cor-
porate network and to use Ricochet on a
college campus.
If you live in or ofren navel to any Ric-
ochet ciry, check out this wireless modem.
It's one technology that delivers. m!I
by Sm..rtMoncy, J joint v<ntule of The Hearst Corporation md Dow Jon.. s.. Company, Inc.
NOV!!'.(sell 1991
~ Metricom@
Agoura Hills
Anaheim
Arcadia
Artesia
EI Monte
Baldwin Park
Bell
Bellflower
Beverly Hills
Bradbury
Buena Park
Burbank
Carson
Cerritos
Claremont
Commerce
Costa Mesa
Covina
Cudahy
Culver City
Rancho Cucamonga
Riverside City
Redondo Beach
Alameda
Alameda County
Albany
Antioch
Atherton
Belmont
Belvedere
Berkeley
Brisbane
Burlingame
Campbell
Capitola
Concord
Contra Costa Co.
Corte Madera
Cupertino
Daly City
Danville
Dublin
CALIFORNIA RIGHT OF WAY APPROVALS
October 9, 1998
SOUTH CALIFORNIA APPROVALS
Cypress
Diamond Bar
Downey
Duarte
La Palma
Garden Grove
Gardena
Glendale
Glendora
Hawthorne
Hermosa Beach
Huntington Beach
Huntington Park
Industry
Inglewood
Irvine
La Car'ladalFlintridge
Laguna Hills
Laguna Niguel
La Habra
Walnut
Rancho Cucamonga
Montclair
La Habra Heights Rolling Hills
Lakewood Rosemead
Lake Forest Azusa
La Mirada San Fernando
San Dimas San Gabriel
La Puente San Marino
La Verne Santa Ana
Lomita Santa Clarita
Long Beach Santa Fe Springs
Los Alamitos Seal Beach
Los Angeles South EI Monte
Manhattan Beach South Gate
Maywood South Pasadena
Mission Viejo Stanton
Monterey Park Temple City
Newport Beach Torrance
Orange Villa Park
Pasadena West Covina
Placentia Westlake Village
Pomona Westminster
Rancho Palos Verdes Whittier
Lawndale Signal Hill
NORTHERN CALIFORNIA APPROVALS
EICerrito
Fairfax
Foster City
Fremont
Hayward
Hillsborough
Larkspur
Livermore
Los Altos
Los Altos Hills
Los Gatos
Marin Co.
Martinez
Menlo Park
Mill Valley
Millbrae
Milpitas
Moraga
Morgan Hill
Mountain View
Newark
Novato
Oakland
Orinda
Pacifica
Palo Alto
Piedmont
Pittsburg
Pleasanton
Redwood City
Richmond
Ross
San Anselmo
San Bruno
San Carlos
San Francisco
San Jose
E. Palo Alto
San Leandro
San Luis Obispo
San Mateo Co. (Unincorp. Areas)
San Rafael
San Ramon
Santa Clara
Santa Clara Co. (Unincorp. Areas)
Santa Cruz
Santa Rosa
Saratoga
Sausalito
So. San Francisco
Sunnyvale
Tiburon
Union City
Vallejo
Walnut Creek
Woodside
~
D:\MetricomlApproved California CKies List 1998.doc
Printed on 10109/98
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RESOLUTION NO.
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY
OF SAN BERNARDINO AUTHORIZING THE MAYOR TO EXECUTE A LICENSE
AGREEMENT WITH METRICOM, INC., RELATING TO THE INSTALLATION OF
WIRELESS DIGITAL RADIO RECEIVERS IN THE PUBLIC RIGHT OF WAY.
BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE
CITY OF SAN BERNARDINO AS FOLLOWS:
SECTION 1. The Mayor of the City of San Bernardino is hereby authorized and
directed to execute on behalf of said City a License Agreement with Metricom, Inc., relating to
the installation of wireless digital radio receivers in the public right of way, a copy of which is
attached hereto, marked Exhibit "A" and incorporated herein by reference as fully as though set
forth at length.
SECTION 2. The authorization to execute the above-referenced agreement is
rescinded if the parties to the agreement fail to execute it within sixty (60) days of the passage
of this resolution.
III
III
Vlo le-
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RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY .
OF SAN BERNARDINO AUTHORIZING THE MAYOR TO EXECUTE A LICENSE
AGREEMENT WITH METRICOM, INC., RELATING TO THE INSTALLATION OF
WIRELESS DIGITAL RADIO RECEIVERS IN THE PUBLIC RIGHT OF WAY.
I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor
and Common Council of the City of San Bernardino at a
meeting thereof, held on the
_ day of
.1998, by the following vote, to wit:
Council Members:
AYES
NAYS
ABSTAIN ABSENT
ESTRADA
LIEN
(V ACANl)
SCHNETZ
DEVLIN
ANDERSON
MILLER
City Clerk
The foregoing ordinance is hereby approved this
day of
1998.
Judith Valles, Mayor
City of San Bernardino
Approved as to
Form and legal content:
JAMES F. PENMAN,
City ttomey ()
By: . r~
98-314
, &fl.. ...-;'....:C;^
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.
SAN BERNARDINO
........
iIictnl1t Agrttmtnt
US HIS UCENSE AGREEMENT (the "License") is dated as of
, //-,;l. ,1998, and entered into by and between the CITY OF SAN
BERNARDINO, a California municipal corporation (the "City"), and
METRICOM, INC., a Delaware corporation ("Metricom").
i&trita16
A. Under California law the City has the right and power to regulate the
time, location, and manner of attachment, installation, operation, and maintenance of
wireless digital communications radios in the Public Way within the limits of the City.
B. Metricom wishes to attach, install, operate, and maintain a wireless digital
communications radio network on facilities located in the Public Way for purposes of
operating its Ricochet<!!) wireless digital communications radio network (the
"Network").
.Agrttmtnt
Nnw, tl1trtfurt, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree to the following
covenants, terms, and conditions:
1 DEFINITIONS. The following definitions shall apply generally to the provisions of
this agreement:
1.1 Agency. "Agency" means any governmental or quasi-governmental
agency other than the City, including the FCC and the PUC (as such terms are
defined in ss 1.4 and 1.10 below).
1.2 City. "City" means the City of San Bernardino.
1.3 Effective Date. "Effective Date" means the latest to occur of (a) the date
on which this license, as finally approved by the City Council of San Bernardino,
is executed by the City and delivered to Metricom; (b) the date on which all
permits required hereunder for deployment of the Radios is issued by the City;
or (c) the date on which Metricom hangs its first Radio as provided below.
1.4 FCC. "FCC" means the Federal Communications Commission.
Telecommunications License Agrmntnt
City of S4n Bunardino :: Mdriamr, Inc.
pago 1 of16
sbentardinoJ.doc [rwg07sd}5Qpa981
10/8/1998
98-314
1.5 Fee. "Fee" means any assessment, license, charge, fee, imposition, tax (but
excluding any utility users' tax or franchise fees), or levy of general application to
Persons doing business in the City lawfully imposed by any governmental body.
1.6 Gross Revenues. "Gross Revenues" means the gross dollar amount
accrued on Metricom's books for Services provided to its customers with billing
addresses in the City, excluding (i) the Franchise Fee, if any, payable pursuant to
S 4 et seq. below; (ii) local, state, or federal taxes collected by Metricom that have
been billed to the subscribers and separately stated on subscribers' bills; and
(iii) revenue uncollectible from subscribers (i.e., bad debts) with billing addresses
in the City that was previously included in Gross Revenues.
1.7 Laws. "Laws" means any and all statutes, constitutions, ordinances,
resolutions, regulations, judicial decisions, rules, tariffs, administrative orders,
certificates, orders, or other requirements of the City or other governmental
agency having joint or several jurisdiction over the parties to this Ucense, in
effect either at the time of execution of this License or at any time during the
presence of Radios in the Public Way.
1.8 License. "License" means this nonexclusive Ucense Agreement and may
also refer to the associated right to encroach upon the Public Way conferred
hereunder.
1.9 Metricom. "Metricom" means Metricom, Inc., a corporation duly
organized and existing under the laws of the State of Delaware, and its lawful
successors, assigns, and transferees.
1.10 PUc. "PUC" means the California Public Utilities Commission.
1.11 Person. "Person" means an individual, a corporation, a limited liability
company, a general or limited partnership, a sole proprietorship, a joint venture,
a business trust, or any other form of business entity or association.
1.12 Provision. "Provision" means any agreement, clause, condition,
covenant, qualification, restriction, reservation, term, or other stipulation in this
License that defines or otherwise controls, establishes, or limits the performance
required or permitted by any party to this License. All Provisions, whether
covenants or conditions, shall be deemed to be both covenants and conditions.
1.13 Public Way. "Public Way" means in, upon, above, along, across, and over
the public streets, roads, lanes, courts, ways, alleys, boulevards, and places,
including all public utility easements and public service easements as the same
now or may hereafter exist that are under the jurisdiction of the City. This term
sbernanfin03.doc [rwg07sdJSapa98}
Tekcommunicatiorrs Lianse Agrmnent
City of San Ilmrardino :: Melricom, Inc.
pt:gt 2 ofl6
10/8/1998
98-314
shall not include any property owned by any Person or Agency other than the
City, except as provided by applicable Laws or pursuant to an agreement
between the City and any such Person or Agency.
1.14 Radio Month. "Radio Month" means a calendar month during which a
Radio occupies space on a City-owned pole or other City-owned property, even
if such occupancy is less than the entire month.
1.15 Radio. "Radio" means the radio equipment, whether referred to singly or
collectively, to be installed and operated by Metricom hereunder and more
particularly described in Exhibit A attached hereto.
1.16 Ricochet@, "Ricochet@" or "Ricochet@ MCDN" means Ricochet@
MicroCellular Digital Network, a wireless, microcellular digital radio
communications network owned and operated by Metricom.
1.17 Services. "Services" means the wireless digital communications services
provided through Ricochet by Metricom to subscribers with billing addresses
within the City.
2 TERM. The term of this License shall commence on the Effective Date and shall
expire on the date which completes five (5) years after the Effective Date, unless it is
earlier terminated by either party in accordance with the provisions herein. The term of
this License shall be renewed automatically for two (2) successive terms of five (5) years
each on the same terms and conditions as set forth herein, except that the Annual Fee
shall be subject to adjustment as provided in ~ 4.2.1 below, unless either Metricom or
the City notifies the other party of its intention not to renew not less than thirty (30)
calendar days prior to commencement of the relevant renewal term.
3 SCOPE OF LICENSE. Any and all rights expressly granted to Metricom under this
License, which shall be exercised at Metricom's sole cost and expense, shall be subject to
the prior and continuing right of the City under applicable Laws to use any and all
parts of the Public Way exclusively or concurrently with any other Person or Persons
and shall be further subject to all deeds, easements, dedications, conditions, covenants,
restrictions, encumbrances, and claims of title which may affect the Public Way.
Nothing in this License shall be deemed to grant, convey, create, or vest in Metricom a
perpetual real property interest in land, including any fee, leasehold interest, or
easement.
3.1 Attachment to City-Owned Property. The City hereby authorizes
Metricom to attach, install, operate, maintain, remove, reattach, reinstall,
relocate, and replace Radios in or on City street light poles, lighting fixtures,
electroliers, or other City-owned property located within the Public Way for the
Telecommunications Lianst Agrunwnt
City of Sa. Berrumli.o :: Melricom, I.c.
pagd 0116
sbenulrdi.03.doc [rwg07sc050pa98}
10/811998
98-314
purposes of providing Services to Persons located within or without the limits of
the City. Notwithstanding anything to the contrary herein, Metricom agrees that
it will not attach or deploy a total number of Radios within the City exceeding
Four Hundred Fifty (450) without the express prior written consent of the City.
3.1.1 Preference for City-0wned Property. In any situation where
Metricom has a choice of attaching its Radios to either City-owned
property or third-party-owned property in the Public Way, Metricom
agrees to attach to City-owned property, provided that such City-owned
property is at least equally suitable functionally for the operation of
Ricochet@ and the rental fee and installation costs associated with such
attachment over the length of the term is equal to or less than the fee or
cost to Metricom of attaching to the alternative third-party-owned
property .
3.2 Attachment to Third-Party Property. Subject to obtaining the permission
of the owner(s) of the affected property, the City hereby authorizes and permits
Metricom to attach, install, operate, maintain, remove, reattach, reinstall,
relocate, and replace such number of Radios in or on poles or other structures
owned by public utility companies, including SCE, or other property owners
located within the Public Way as may be permitted by the public utility company
or property owner, as the case may be. Metricom shall furnish to the city
documentation of such permission from the individual utility or property owner
responsible. Notwithstanding anything to the contrary herein, Metricom agrees
that it will not attach or deploy a total number of Radios within the City
exceeding Four Hundred Fifty (450) without the express prior written consent of
the City.
3.3 No Interference. Except as permitted by applicable Laws or this License
Metricom in the performance and exercise of its rights and obligations under this
License shall not interfere in any manner with the existence and operation of any
and all public and private rights-of-way, sanitary sewers, water mains, storm
drains, gas mains, poles, rerial and underground electrical and telephone wires,
electroliers, cable television, and other telecommunications, utility, or municipal
property, without the express written approval of the owner or owners of the
affected property or properties.
3.4 Compliance with Laws. Metricom shall comply with all applicable Laws
in the exercise and performance of its rights and obligations under this License.
3.4.1 Encroachment Permits. Any and all construction work performed
pursuant to the rights granted under this License, including the
Tekcommunications License Aptmtnt
City o[San BerrIlITdino :: Mmicom, Inc.
page 40[16
sbmumIin03.doc (rwg07scOSapa98j
10/811998
98-314
installation, operation, maintenance, location, and attachment of the
Radios in the Public Way, sha1I, if required under applicable City
ordinances, be subject to the prior review and approval of City by means
of submission of an encroachment permit application, payment of any
applicable permitting fees, and the City's ordinary administrative review.
Metricom agrees to apply for and obtain all appropriate permits required
by applicable Law prior to the commencement of any work of
construction in the Public Way. The locations of Metricom's planned
initial installation of Radios shall be incorporated in Exhibit B attached to
this License. After the initial deployment of the Radios, new attachments,
removals, and relocations of Radios shall also be subject to the City's
permitting process. If the location of any Radio is different from thaf
applied for in the applicable permit, the location of such Radio installed
by Metricom or its designee sha1I be disclosed in writing to the City by
Metricom within ten (10) days after its installation, removal, or relocation.
3.4.2 As-Built Drawings. Upon the completion of construction work,
Metricom promptly sha1I furnish to the City, in hard copy and in
Metricom's electronic format, suitable documentation showing the exact
location of the Radios in the Public Way.
3.4.3 Modification of Service Voltage. The City reserves the right to
modify the service voltage delivered to or at any street light pole or utility
pole on which a Radio may be located. Metricom sha1I replace or modify
any Radio that will be affected by such voltage modifications within thirty
(30) days of receiving notice of voltage modifications. In the event that
Metricom fails to replace or modify any Radio within the thirty-day notice
period before the voltage modification, the City may disconnect any such
Radio until Metricom performs and completes the necessary work and
advises City accordingly.
3.5 Annual Business License. Metricom agrees to obtain an annual City
business license prior to the Effective Date and maintain the same throughout the
term of this License.
4 FEES AND TAXES. Metricom sha1I be solely responsible for the payment of all lawful
Fees and utility charges in connection with the exercise of Metricom's rights under this
License, including those set forth below.
4.1 Franchise Fee. Metricom sha1I pay to the City, on an annual basis, an
amount (the "Franchise Fee") equal to five percent (5%) of Metricom's Gross
Revenues collected during each preceding calendar year, which amount sha1I be
sbemardin03.doc 17Wg07sc05apll98]
Telecommunicatioft$ Liamse Agrwnent
City of San Benumlino :: NkI7iamr, Inc.
""go 5 0[16
10/811998
98-314
collected from subscribers of the Services and remitted to City as provided
herein. The Franchise Fee shall be due on or before the forty-fifth (45th) day after
the end of each calendar year or fraction thereof. Within forty-five (45) days after
the termination of this License, the Franchise Fee shall be paid for the period
which has elapsed since the end of the last calendar year for which the Franchise
Fee has been paid. Metricom shall furnish to the City with each payment of the
Franchise Fee a statement, executed by an authorized officer of Metricom or his
or her designee, showing the amount of Gross Revenues for the period covered
by the payment. If Metricom discovers that it has failed to pay the entire or
correct amount of the Franchise Fee, Metricom shall pay the difference to the
City or make such other adjustment within fifteen (15) days of discovery of the
error or determination of the correct amount. Any overpayment to the City
through error or otherwise shall be offset against the next payment due from
Metricom. Acceptance by the City of any payment due under this section shall
not be deemed to be a waiver by the City of any breach of this License occurring
prior thereto, nor shall the acceptance by the City of any such payments preclude
the City from later establishing that a larger amount was actually due or
collecting any balance due to the City.
4.1.1 Accounting and Audit. Metricom shall keep accurate books of
account at its principal office in Los Gatos or such other location of its
choosing for the purpose of determining the amounts due to the City
under ~ 4.1. The City may inspect Metricom's books of account at any
time during regular business hours on five (5) days' prior written notice
and may audit the books from time to time, but in each case only to the
extent necessary to confirm the accuracy of payments due under ~ 4.1.
The City shall bear the cost of any such audit, unless such audit reveals an
underpayment to the City of more than five percent (5%) of the Franchise
Fee which was due to the City for such calendar year. Once each calendar
year the City may require an annual report from Metricom relating to its
operations and revenues within the City. City agrees to hold in
confidence any nonpublic information it learns from Metricom in
accordance with applicable law.
4.2 Annual Fee. Metricom shall pay to the City an annual fee (the" Annual
Fee") in the amount of Sixty Dollars ($60.00) for the use of each City-owned pole
or other structure or piece of City-owned property upon which a Radio has been
installed pursuant to this License. The initial Annual Fee shall be due and
payable not later than the date of installation of the first Radio on City-owned
poles or other City-owned property under this License (the "Installation Date")
and shall be computed based upon the number of Radios Metricom estimates as
sbemardin03.doc {rwg07sdJSap098}
Telecommunications Licmse Apmrent
City of S4n Benumlino :: Metri<om, Inc.
page 60f16
10/811998
98-314
of the Installation Date that it will install on City-owned poles or other City-
owned property during the succeeding twelve (12) months. The Annual Fee for
subsequent years shall be due and payable not later than thirty (30) days
following each anniversary of the Installation Date and shall equal the total
number of Radios then installed on City-owned poles or other City-owned
property pursuant to this License multiplied by the Annual Fee, adjusted for the
Prior Year Adjustment, as described immediately below. The Prior Year
Adjustment shall either increase or decrease a subsequent year's aggregate
Annual Fee to account for the installation or removal of Radios during the prior
year, and shall equal the difference between (i) the total number of Radios used
to calculate the prior year's aggregate Annual Fee multiplied by twelve (12) and
(ii) the actual number of Radio Months which occurred during such year,
multiplied by one-twelfth of the Annual Fee.
4.2.1 CPI Adjustment. At the commencement of each renewal term, the
Annual Fee with respect to such term shall be adjusted effective January
1st of the first year of such renewal term by a percentage amount equal to
the percentage change in the U.S. Department of Labor, Bureau of Labor
Statistics, Consumer Price Index of all items, Base 1982-1984, which
occurred during the previous term or renewal term, as the case may be,
for the Los Angeles-Anaheim-Riverside Consolidated Metropolitan
Statistical Area.
4.3 City Access Program Subscription Rate. In consideration of City's
execution and delivery of this License, City shall have the right throughout the
term of this License 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 moderns 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
Telecommunications Lianst Agreement
City .f Son 8errumiino :: Mttricom. Inc.
pag< 7.f16
sberrumlin03.doc {rwg07sc/JSopfl98j
10/8/1998
98-314
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 ~ 4.3 solely for its own use
and shall not be entitled to resell, distribute, or otherwise permit the use of the
same by any other party.
4.4 Reimbursement of City's Expenses. Metricom shall reimburse the City at
City's standard rates for all reasonable expenses relating to the preparation,
issuance, and implementation of this Ucense, promptly upon receipt of bills,
paid invoices, and such other documentation as Metricom shall reasonably
require. The reimbursement provided for in this ~ 4.4 shall not replace or excuse
Metricom from the payment of any applicable City permit fee for work
undertaken in connection with this Ucense.
4.5 Electrical Consumption. Metricom covenants and agrees that in no event
will the City incur or be liable for any costs for the electrical consumption of the
Radios installed on City-owned poles pursuant to this Ucense. Metricom agrees
to contract directly with the applicable public utility company for the provision
of the Radios' electricity. Metricom agrees to indemnify and hold the City
harmless with respect to any electrical charges or electrical rate increases the City
may incur in connection with or because of Metricom's attachment of Radios to
City-owned poles pursuant to this Ucense.
4.6 Potential Utility Users' Tax. Metricom acknowledges and agrees that the
City may require users of revenue-producing services such as the Services to pay
a utility users' tax ("Utility Tax") to the City pursuant to City's Municipal Code.
If the City determines that the Services are subject to the Utility Tax, Metricom
agrees to collect the tax from Service users and remit such tax to the City in
accordance with City's Municipal Code. The amount of any such Utility Tax
shall be deducted from Franchise Fee, if any, owing to the City under ~ 4.1 above.
4.7 Most-Favored Nation Clause. Should Metricom after the parties'
execution and delivery of this License enter into an attachment permit agreement
with another municipality of the same size or smaller than the City in the Los
Angeles Metropolitan Statistical Area which agreement contains financial
benefits for such municipality which, taken as a whole and balanced with the
other terms of such agreement, are in the City's opinion substantially superior to
those in this License, City shall have the right to require that Metricom modify
this Ucense to incorporate the same or substantially similar superior benefits and
such other terms.
sbenuudin03.doc [rwg07sc05apa98}
Telecommunications Lian5t Agrmrrent
City of San Bmumlino ;; Mdricmn. Inc.
page 8 of16
10/8/1998
98-314
5 REMOVAL AND RELOCAnON OF RADIOS. Metricom understands and acknowledges
that City may require Metricom to relocate one or more of its Radios, and Metricom
shall at City's direction relocate or remove such Radios at Metricom's sole cost and
expense, whenever City reasonably determines that the removal or relocation is needed
for any of the following purposes: (a) to facilitate or accommodate the construction,
completion, repair, relocation, or maintenance of a City project; (b) because the Radio is
interfering with or adversely affecting proper operation of City light poles, traffic
signals, or other City facilities; (c) to protect or preserve the public health, safety, or
welfare; or (d) to address an emergency in the City's discretion. If Metricom shall fail to
relocate any Radios as requested by the City in accordance with the foregoing
provision, City shall be entitled to relocate the Radios at Metricom's sole cost and
expense, without further notice to Metricom.
5.1 Metricom Desires Relocation. In the event Metricom desires to relocate
any Radios from one City-owned pole or other property to another City-owned
pole or other property, Metricom shall so advise City. City will use its best
efforts to accommodate Metricom by making another functionally equivalent
City-owned pole or other property available for use in accordance with and
subject to the terms and conditions of this License.
5.2 Discontinuation of Service. In the event that any Radio subject to this
License is abandoned and no longer placed in service for a period-of six (6)
months or more, Metricom promptly shall notify the City, and the City, at its
option, may require Metricom promptly to remove the abandoned Radio(s) at
Metricom's sole cost and expense or dedicate the same to the City. The City shall
not issue notice to Metricom that the City intends to exercise the option to
require removal or dedication of Radios, unless and until the City first gives
fifteen (15) days' prior written notice to Metricom to remove the Radios. If
Metricom shall fail to remove the Radios as required by the City, the City shall be
entitled to remove the Radios at Metricom's sole cost and expense. Metricom
shall execute such documents of title as will convey all right, title, and interest in
the abandoned Radios, but in no other Metricom property, intellectual or
otherwise, to the City.
5.3 Damage to Public Way. Whenever the removal or relocation of Radios is
required under this License, and such removal or relocation shall cause the
Public Way to be damaged, Metricom, at its sole cost and expense, shall
promptly repair and return the Public Way in which the Radios are located to a
safe and satisfactory condition to the satisfaction of the City's Director of
Development Services. If Metricom does not repair the site as just described,
then the City shall have the option to perform or cause to be performed such
Telecommunications License Agrummt
City of San 8mrarrIino :: Mtlricom, Inc.
page 90fl6
10/8/1998
sbemardin03.doc fn>>g07sc05apa98]
98-314
reasonable and necessary work on behalf of Metricom and to charge Metricom
for the proposed costs to be incurred or the actual costs incurred by the City at
City's standard rates, as follows: (a) in an emergency as deemed by the City in its
discretion, by immediate action; and (b) in situations not emergencies, upon
fifteen (15) days' prior written notice to Metricom. Upon the receipt of a demand
for payment by the City, Metricom shall reimburse the City for such costs.
6 INDEMNIFICATION, WAIVER, AND BOND. Metricom agrees to indemnify, defend
(with counsel reasonably acceptable to the City and to Metricom's insurance carrier),
protect, and hold harmless the City, its council members, officers, and employees from
and against any and all claims, demands, losses, damages, liabilities, fines, charges,
penalties, administrative and judicial proceedings and orders, judgements, remedial
actions of any kind, all costs and cleanup actions of any kind, and all costs and expenses
incurred in connection therewith, including reasonable attorney's fees and costs of
defense (collectively, the "Losses") arising, directly or indirectly, in whole or in part, out
of the activities or facilities described in this License, except to the extent arising from or
caused by the negligence or willful misconduct of the City, its council members,
officers, employees, agents, or contractors.
6.1 Waiver of Breach. The waiver by the City of any breach or violation of
any Provision of this License by Metricom shall not be deemed to be a waiver or
a continuing waiver by the City of any subsequent breach or violation of the
same or any other Provision of this License by Metricom.
6.2 Waiver of Claims. Metricom waives any and all claims, demands, causes
of action, and rights it may assert against the City on account of any loss,
damage, or injury to any Radio or any loss or degradation of the Services as a
result of a sudden or gradual loss or change of electrical power caused by,
among others events, an Act of God, an event or occurrence which is beyond the
reasonable control of the City, a power outage, a lightning strike, or occasioned
by the installation, maintenance, replacement or relocation of any City-owned
facility to which such Radio is attached.
6.3 Limitation of City's Liability. The City shall be liable only for the cost of
repair to damaged Radios arising from the negligence or willful misconduct of
City or its employees or agents, and the City shall not be responsible for any
damages, losses, or liability of any kind occurring by reason of anything done or
omitted to be done by the City or by any third party, including damages, losses,
or liability arising from the issuance or approval by the City of a permit to any
third party or any interruption in Services.
Telecommunications UctnSt Agrmnent
City of San Bmuudi.o :: Metricmn, I.c.
pagt 10 of16
10/8/1998
sbernardin03.doc {rwg07sdlS0pa98}
98-314
6.4 Bond or Other Security. Prior to the commencement of any work under
this License, Metricom shall furnish or cause to be furnished to City a good and
sufficient bond, substantially in the form attached hereto as Exhibit C entitled
Surety Bond, in the amount of Seven Thousand Five Hundred Dollars ($7,500), or
such other comparable security instrument as may be approved by the City's
attorney or risk manager, securing the faithful performance by Metricom of all of
the work, construction, installation, and removals required to be performed by
Metricom under this License within the time periods set forth hereunder.
7 INSURANCE. Metricom shall obtain and maintain at all times during the term of this
License (including the period between the expiration hereof and Metricom's removal of
its Radios or other equipment from the Public Way) commercial general liability
insurance and commercial automobile liability insurance protecting Metricom in an
amount not less than One Million Dollars ($1,000,000) per occurrence (combined single
limit), including bodily injury and property damage, and in an amount not less than
One Million Dollars ($1,000,000) annual aggregate for each personal injury liability and
products-completed operations. Such insurance policies shall name the City, its council
members, officers, and employees as additional insureds as respects any covered
liability arising out of Metricom's performance of work under this License. Coverage
shall be provided in accordance with the limits specified and the Provisions indicated
herein. Claims-made policies are not acceptable. When an umbrella or excess coverage
is in effect, coverage shall be provided in following form. Such insurance shall not be
canceled or materially altered to reduce coverage until the City has received at least
thirty (30) days' advance written notice of such cancellation or change. Metricom shall
be responsible for notifying the City of such change or cancellation.
7.1 Filing of Certificates and Endorsements. Prior to the commencement of
any work pursuant to this License, Metricom shall file with the City the required
original certificate(s) of insurance with endorsements, subject to the City's prior
approval, which shall clearly state all of the following:
(a) the policy number; name of insurance company; name and
address of the agent or authorized representative; name,
address, and telephone number of insured; project name and
address; policy expiration date; and specific coverage
amounts;
(b) that thirty (30) days' prior notice of cancellation is required
to the City; and
(c) that Metricom's insurance is primary as respects any other
valid or collectible insurance that the - City may possess,
sbenuudin03.doc [rwg07sdl5apa98]
Telecommunications Uan5e Agrwnent
City of San _no:: Metricom, Inc.
pagt 11 of16
10/811998
98-314
including any self-insured retentions the City may have; and
any other insurance the City does possess shall be
considered excess insurance only and shall not be required
to contribute with this insurance.
The certificate(s) of insurance with endorsements and notices shall be mailed to
the City as the address specified in ~ 8 below:
7.2 Workers' Compensation Insurance. Metricom shall obtain and maintain
at all times during the term of this License statutory workers' compensation and
employer's liability insurance in an amount not less than Five Hundred
Thousand Dollars ($500,000) and shall furnish the City with a certificate showing
proof of such coverage.
7.3 Insurer Criteria. Any insurance provider of Metricom shall be admitted
and authorized to do business in California and shall be rated at least A:X in
A.M. Best & Company's Insurance Guide. Insurance policies and certificates issued
by non-admitted insurance companies are not acceptable.
7.4 Severability of Interest. Prior to the execution of this License, any
deductibles or self-insured retentions must be stated on the certificate(s) of
insurance, which shall be sent to and approved by the City. "Cross liability,"
"severability of interest," or "separation of insureds" clauses shall be made a pait
of the commercial general liability and commercial automobile liability policies.
7.5 Contractors' and Subcontractors' Insurance. Metricom shall require that
all contractors and subcontractors obtain insurance meeting the criteria set forth
herein and shall furnish to the City copies of all certificates evidencing such
policies of insurance.
7.6 Insurance and Indemnification Obligation. Metricom's compliance with
the insurance requirements herein shall not excuse, replace, or otherwise affect
Metricom's duty to indemnify and defend the City pursuant to ~ 6 of this
License.
8 NOTICES. All notices which shall or may be given pursuant to this License shall be
in writing and delivered personally or transmitted (a) through the United States mail,
by registered or certified mail, postage prepaid; (b) by means of prepaid overnight
delivery service; or (c) by facsimile transmission, if a hard copy of the same is followed
by delivery through the U. S. mail or by overnight delivery service as just described,
addressed as follows:
sbmuudin03.doc [rwg07sdl5apa98}
Telecommunications Licznse Agrttmtnt
City of San &rrumIi1UJ :: Mttri-. I.c.
""g<120fI6
10/8/1998
98-314
if to the City:
CITY OF SAN BERNARDINO
Attn: City Administrator
300 North "0" Street
San Bernardino, CA 92418
if to Metricom:
METRICOM, INC.
Attn: Property Manager
980 University Avenue
Los Gatos, CA 95032
Notices shall be deemed given upon receipt in the case of personal delivery, three (3)
days after deposit in the mail, or the next day in the case of overnight delivery. Either
party may from time to time designate any other address for this purpose by written
notice to the other party delivered in the manner set forth above.
9 TERMINATION. This Ucense may be terminated by either party upon forty five (45)
days' prior written notice to the other party upon a default of any material covenant or
term hereof by such other party, which default is not cured within forty-five (45) days
of receipt of written notice of default (or, if such default is not curable within forty-five
(45) days, if the defaulting party fails to commence such cure within forty-five (45) days
or fails thereafter diligently to prosecute such cure to completion), provided that the
grace period for any monetary default shall be ten (10) days from receipt of notice. As
used in this ~ 9, the term default shall include, with respect to Metricom's obligations
hereunder, Metricom's failure (i) to comply with the restrictions established in ~ 3,
(ii) timely to pay any sums owing to the City under ~ 4, and (iii) to maintain, deploy,
relocate, or remove its Radios as provided in ~ 5 hereof.
10 AsSIGNMENT. This License shall not be assigned by Metricom without the express
written consent of the City, which consent shall not be unreasonably withheld,
conditioned, or delayed. Any attempted assignment in violation of this ~ 10 shall be
void. Notwithstanding the foregoing, the transfer of the rights and obligations of
Metricom hereunder to a parent, subsidiary, or financially viable affiliate of Metricom
or to any successor-in-interest or entity acquiring all or substantially all of Metricom's
outstanding voting stock or assets shall not be deemed an assignment or transfer for the
purposes of this License, provided that (i) any such transferee will have a financial
strength after the proposed transfer at least equal to that of Metricom prior to the
transfer, (ii) any such transferee assumes all the obligations of Metricom hereunder, and
(ill) Metricom shall not be released from the obligations of this License by virtue of such
Telecommunications Ur.nw Agrmnent
City of San Bmumlioo :: Metricmn, loc.
pagd30f16
10/8/1998
,berrrardio03.doc [rwg07sdJ5apa98]
98-314
transfer. If such criteria are satisfied, it shall not be deemed reasonable for the City to
withhold its consent to the proposed transfer, unless the proposed transferee has a
record of performance under similar agreements which is unacceptable to the City
under a reasonable standard of evaluation. Lack of prior specific experience in
administering a system providing the Services described in this License shall not, by
itself, be deemed a reasonable basis for refusing or conditioning the City's consent.
Metricom shall give to the City thirty (30) days' prior written notice of any proposed
transfer for which notice is required hereunder, and the City's consent shall be deemed
approved unless the City objects in writing within such thirty-day period. In the case of
any proposed transfer for which the City's consent is required hereunder, Metricom
agrees to reimburse the City for its reasonable expenses incurred in reviewing such
transfer proposal.
11 MISCELLANEOUS PROVISIONS. The provisions which follow shall apply generally to
the obligations of the parties under this License.
11.1 Nonexclusive Use. Metricom understands that this License does not
provide Metricom with exclusive use of any City-owned poles or property and
that City shall have the right to permit other providers of telecommunications
services to install equipment or devices in the Public Way; however, City shall
endeavor promptly to notify Metricom of the receipt of a proposal for the
installation of communications equipment or devices in the Public Way,
regardless of whether a license is required by the FCC for the operation thereof.
11.2 Amendment of License. This License may not be amended except
pursuant to a written instrument signed by both parties.
11.3 Severability of Provisions. If anyone or more of the Provisions of this
License shall be held by court of competent jurisdiction in a final judicial action
to be void, voidable, or unenforceable, such Provision(s) shall be deemed
severable from the remaining Provisions of this License and shall in no way
affect the validity of the remaining portions of this License.
11.4 All-Hours Contact. Metricom shall be available to the staff employees of
any City department having jurisdiction over Metricom's activities twenty-four
(24) hours a day, seven (7) days a week, regarding problems or complaints
resulting from the attachment, installation, operation, maintenance, or removal
of the Radios. The "City may contact by telephone the network control center
operator at telephone number (800) 556-6123 regarding such problems or
complaints.
11.5 Governing Law; Jurisdiction. This License shall be governed and
construed by and in accordance with the laws of the State of California. In the
sbmurrdin03.doc [rwg07sdJ5apa98[
Ttltcammunicatioru Liana Agrmnent
City of San BmumIino :: Metricom, Inc.
P"8' 14 ofl6
10/811998
98-314
event that suit is brought by a party to this License, the parties agree that trial of
such action shall be vested exclusively in the state courts of California, County of
San Bernardino, or in the United States District Court, Central District of
California in the County of San Bernardino.
11.6 Attorneys' Fees. Should any dispute arising out of this License lead to
litigation, the prevailing party shall be entitled to recover its costs of suit,
including reasonable attorneys' fees. The costs, salary, and expenses of the City
Attorney and members of his office in connection with that action shall be
considered as attorneys' fees for the purposes of this Agreement.
11.7 Exhibits. All exhibits referred to in this License and any addenda,
attachments, and schedules which may from time to time be referred to in any
duly executed amendment to this License are by such reference incorporated in
this License and shall be deemed a part of this License.
11.8 Successors and Assigns. This License is binding upon the successors and
assigns of the parties hereto.
11.9 Rules, Regulations, and Specifications. Metricom acknowledges that the
City may develop rules, regulations, and specifications, including a general
ordinance or other regulation governing wireless telecommunications in the City
(the "Regulations"), for the attachment, installation, and removal of Radios and
any similar purpose devices on the City-owned facilities, including poles, and
that such Regulations, when finalized, shall govern Metricom's activities
hereunder as if they had been in effect at the time this License was executed by
the City; provided, however, that in no event shall such Regulations materially
interfere with or affect Metricom's right to install Radios or Metricom's ability to
transmit or receive radio signals from Radios installed pursuant to and in
accordance with this License or materially increase Metricom's obligations
hereunder.
11.10 Advice of Displacement. To the extent the City has actual knowledge
thereof, the City will attempt to inform Metricom of the displacement of any pole
on which any Radio is located.
11.11 Consent Criteria. In any case where the approval or consent of one party
hereto is required, requested or otherwise to be given under this License, such
party shall not unreasonably delay, condition, or withhold its approval or
consent.
11.12 Entire Agreement. This License contains the entire understanding
between the parties with respect to the subject matter herein. There are no
sberrum1in03.doc [rwg07sc05apa98}
Telecommunications Lianlt Agrmnent
City of San Bmumlino :: M<tricom. Inc.
page 15 0116
10/8/1998
98-314
representations, agreements, or understandings (whether oral or written)
between or among the parties relating to the subject matter of this License which
are not fully expressed herein.
1Iu UJitutss 1U4trt.of. the parties have executed this License as of the date
first above written.
City:
. municipal corporation
By: -
Date:
ed as to Legal Form and Content:
- {theW' ._
Metricam:
METRICOM, INC., a Delaware corporation
By:
[ruzme typ<d[
Its:
Date:
.1998
sbmuzrdino3.doc [rwg07sdJ51rpd98]
r.I<commun_ Liaru< Agnement
City of San _.:: /ktricom,/nc.
pag< 16 of16
llV8/l998
98-314
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[EXHIBIT B]
(pROPOSED RADIO LOCATIONS]
PROPOSED LOCATIONS TO BE PROVIDED
AFTER REVIEW OF STREET LIGHT MAPS
AND PRIOR TO DEPLOYMENT
98-314
(EXHIBIT q
[FORM OF SURETY BOND]
Bond Number:
SURETY BOND
KNOW ALL MEN BY THFSE PRESENTS:
That METRICOM, 1Ne. as Principal, and .
incorporated under the laws of the State of . and authorized to
execute bonds and undertakings as sole surety, are held and firmly bound unto
. as Obligee, in the sum of
($ ); for the payment thereof, well truly to be made, said Principal and
Surety bind themselves, their administrators, successors and assigns, jointly and
severally, firmly by these presents.
The condition of the foregoing obligation is such that:
WHEREAS, the above bounden Principal is about to enter into a certain agreement with
the Obligee for the following: . the
award of which said agreement was made to the Principal by the Obligee, on
NOW TIiEREFORE, if the Principal shall well, truly and faithfully perform its
duties, all the undertakings, covenants, terms, conditions, and provisions of said
agreement during the original term thereof, and any extensions thereof which may be
granted by the Obligee, with or without notice to the Surety, and if he shall satisfy all
claims and demands incurred under such agreement, and shall fully indemnify and
save harmless the Obligee from all costs and damages which it may suffer by reason of
failure to do so, and shall reimburse and repay the Obligee all outlay and expenses
which the Obligee may incur in making good any default, then this obligation shall be
void; otherwise to remain in full force and effect.
PROVIDED, FURTIiER, that the said Surety, for value received, hereby
stipulates and agrees that no change, extension of time, alteration or addition to the
terms of the agreement or to the work to be performed thereunder or the specifications
accompanying the same shall in any way affect its obligation on this bond, and it does
hereby waive notice of any such change, extension of time, alteration or addition to the
terms of the agreement or to the work or to the specifications.
. ""...,arm
po!' c.! of2
98-314
PROVIDED, HOWEVER, this bond is issued subject to the following express
conditions:
1. This bond shall be deemed continuous in form and shall remain in full force and
effect until canceled under Section . after which all liability ceases except as
to any liability incurred or accrued prior to the date of such cancellation.
2. The aggregate liability of the Surety hereunder on all claims whatsoever shall not
exceed the penal sum of this bond in any event.
3. The surety reserves the right to withdraw as surety from this bond, except as to
any liability incurred or accrued, and may do so upon giving the Obligee sixty
(60) days written notice.
SIGNED AND SEALED this
day of
.19_.
PRINCIPAL
SURETY
(Type Company Name)
By:
Title:
By:
Title:
Bv:
,
Address:
Telephone:
(Affix Corporate Seals)
(Attach Acknowledgments of both Principal and Surety signatures)
arm
".,. C-2of2
CITY OF
San Bernardino
RACHEL
CLARK
CITY CLERK
November 6, 1998
Metricom, Inc.
A TfN: Property Manager
980 University Avenue
Los Gatos, CA 95032
Dear Sir:
At the Mayor and Common Council meeting of November 2, 1998, Resolution 98-314
was adopted.
Enclosed are three (3) original agreements.
Please obtain signatures where indicated and return all three original agreements to my
attention as soon as possible.
Please be advised that said resolution will be null and void if it is riot executed within
ninety (90) days - January 1, 1999.
If you have any questions, please do not hesitate to contact me at (909) 384-5002.
Sincerely,
Rachel Clark
City Clerk
~//. / . ----i//:-->
/It!v~u"-" /N'
By: Melanie Miller, Senior Secretary
mam
Enclosure
P. o. BOX 131', SAN BERNARDINO, CA '1401
300 NORTH D STREET, SAN BERNARDINO,
CALIFORNIA 92418-0001 CIOI)314.1001
I I . ') 3. 4 - 5 1 0 2 FAX . C . 0 ') 3 . 4. 5 1 5 .
TOOfTTY -(1")3...5540
L~=lc:~a~: _.~~!::~~~~~~~~E,~j;!Z..
e-mail: barl@metricom.com
po
t,,)) Metricom
November 3, 1998
Ms. Lori E. Sassoon
City of San Bernardino
300 N. "0" Street
San Bernardino, CA 92418
909-384-5122
RE: Finalizing the Approved Metricom Agreement
Dear Lori:
Thank you for your assistance in having Metricom's agreement approved by Council on November 2,
1998. Once the agreement is signed, please send both executed originals to:
Ms. Linda Paul
Local Government Relations Manager
Metricom, Inc.
1460 East 33'" Street
Signal Hill, CA 90807
562-988-0039
and a copy of the transmittal letter to me.
NOTE: The insurance and surety bond are not required or put in place until just prior to the
commencement of the work, as stipulated in the agreement. Metricom will not obtain permits until all the
necessary licenses, insurance and bonding requirements are met. Also, the mep of the proposed radio
locations is representational only. An actual map showing where the radios are to be installed will be
submitted prior to permitting.
I have enclosed an Airborne shipping label and envelope for your convenience. The proper signatory
authority at Metricom will sign both originals and return one fully executed original back to the City Clerk.
Please indicate if you want the original agreement sent to someone other then the City Clerk.
The City should remit an invoice for the itemized expenses incurred in the connection with the processing
of this agreement, in accordance with Section 5.4 of the agreement, to Linda Paul at the above address.
Linda will review the bill, authorize payment and send the invoice to Metricom accounting for payment.
Please state on the invoice who the check should be made out to and where the payment should be sent.
Thank you for your assistance. Once the correct information is on file, the installation of the radios and the
City's continued relationship with Metricom will progress very smoothly.
7?J:/' .
Richard A. Bartocci~
Right-of-Way Representative
~
Visit our I49bsile: www.melricom.com
felopllOl1C:
!'j()? 98/4', n039
rAX:
!jG:-l. URh'. 77[-(1
~ Metricom"
980 University Avenue
Los Galas, CA 95032
December 1,1998
Melanie Miller
Senior Secretary
City of San Bemardino
P.O. Box 1318
San Bemardino, CA 92404
Re: License Agreement between the City of San Bemardino and Metricom,
Inc., dated November 2, 1998 (the "Agreement")
Dear Ms. Miller:
Enclosed are three (3) copies of Agreement, finally executed on bebalf of Metricom, Inc.
Please return one fully executed copy to my attention as soon as it is convenient. Thank
you for your cooperation in this matter.
Should you have any questions or concerns regarding the Agreement, please feel free to
call me at (408) 399-8108.
Sincerely,
~~.~
n E. Rodriguez
" Con ts Specialist
Enclosure
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408.399.8200
FAX:
408.354.1024
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RESOLUTION AGENDA ITEM TRACKING FORM
Meeting Dale(Date Adopted): II / t),Z /98Item# /6 Resolution # 9J>- 3/~
Vote: Ayes:~Nays: -&- Abslain:~ Absent:-&-
Change to motion to amend original docs: ;u:;
.#-d
;~
3
.-\.ttaclunents: ~ . Resolution # On Allachments: ~
Contract Term: 'I? ~ r 17;::::~Ontract Expiration Dale: ~tJ d~,,1' -
Dale Sent to Mayor: 11/ O.'?/98 Dale Remrned from Mayor: JII 0<-//98
Dale of Mayor's Signature: II / ()t{ /98 Date of Clerk's Signature: II I ~ ICJR
Reso Log Updaled: v"/ Seal Impressed: . /
Dale Memo Senllo Department forSignamre:
/
Date Leller Sent to Outside Party for Signature:
60 Day Reminder Leller Sent on 30th day:
90 day Reminder Letter Sent on 45th day:
_ day Reminder Letter Sent:
Request for Council Action & Staff Report Attached:
L'pdated Prior Resolutions (Other Than Below):
Updated CITY Personnel Folders (6*l3. 6*29. 6*33. 10584, 12634):
Updated CDC Personnel Folders (5557):
Updated Traffic Folders (3985. 8234. 655):
Copies Distributed To: City Attornev & Others: Ul::; nd", In
1<t:dJ(~(<1.h It JI~) ,
Other: ~ ~~s.s~ //-1:--91'
If ,,/I /I-'fff
h~a--
?/ 7 .ur...
1);/"9
f
Dale Received Back:
~.. Dale Received Back:
See Attached:
12jp-Z/99
I I
See Attached:
See Attached:
See Attached:
Yes V No_ By ...:11_
Yes_
Yes_
Yes_
Yes
No ~ By IIIaIII
No ..,,--- By IIIaIII
.....--:
No_ By ma.....
No'-:=:::::- By IIIaIII
I SeeAllacbed:
1/ / () r /98 See Attached:
Jlr'
I
Note With/On Reso of Attachment stored separately: I"- It/-
.
Direct City Clerk-PUBLISH. POST. RECORD W€QrrNTY 1-'-'. I) glllo.
~
Date II/~~k;(
Date /11 "" 196
Date /1/ .I';' ICJ8
Date II lex,. 19
Date /I /Ou 15
/ht' td-dt/tH?l -t:kln~o/
By: IIIaIII Dale: / Z- / llZr98
Ready to File:
Date: I]. / () 'Z-;9
ilia...
Last Uodated: 10/09/1998
etc.
/llA/arz ~
TO THE