G-01-03-08-9A1 - 3/8/2001ORDINANCE NO. a -01- 03 - O'- 9F j
AN ORDINANCE GRANTING A FRANCHISE TO METRICOM, INC.
FOR USE OF PUBLIC RIGHTS-OF-WAY WITHIN THE CITY OF
ROUND ROCK, TEXAS FOR THE PURPOSE OF THE
CONSTRUCTION, MAINTENANCE AND OPERATION OF
METRICOM'S WIRELESS DIGITAL DATA COMMUNICATIONS
RADIO NETWORK; PROVIDING FOR APPROPRIATE
COMPENSATION FOR SUCH USE OF THE PUBLIC RIGHTS-OF-
WAY; AND PROVIDING FOR AN EFFECTIVE DATE
WHEREAS, Metricom, Inc. ("Grantee") , a Delaware corporation,
wishes to use public rights-of-way in the City for the purpose of
constructing, maintaining and operating a wireless digital data
communications radio network known as Ricochet° ("Network") to
provide a type of communications service in the City; and
WHEREAS, such Network will consist of radios and related
equipment that Grantee will attach to facilities in the public
rights-of-way that are owned both by the City and by third parties;
and
WHEREAS, Grantee has complied with applicable requirements
of the City Charter and ordinances in applying for a franchise in
order to carry out these purposes; and
WHEREAS, the City has reviewed Grantee's request and
determined that the granting of a license for use of the public
rights-of-way in the City, on the following terms and conditions,
for the purpose of constructing, maintaining and operating the
Network will benefit the communications -related needs and interests
K:\WPDOCS\ORDINANC\010222B1. WPD/jkg
of the community, including but not limited to, promoting
competition in communications services,
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE
CITY OF ROUND ROCK, TEXAS:
Section 1.
Definitions
For the purpose of this franchise agreement the following
terms, phrases, words and their derivations shall have the meanings
below. Words used in the present tense include the future, words
in the plural number include the singular number and words in the
singular number include the plural number. The words "shall" and
"will" are mandatory and "may" is permissive. Words not defined in
this section shall have the meaning provided by the Communications
Act of 1934 as amended by the Cable Communications Policy Act of
1984, the Cable Television Consumer Protection and Competition Act
of 1992, and the Telecommunications Act of 1996, and if not defined
there, shall have their common and ordinary meaning:
Act means the Federal Communications Act of 1934 as amended by
the Cable Communications Policy Act of 1984, the Cable Television
Consumer Protection and Competition Act of 1992, and the
Telecommunications Act of 1996.
Agency means any governmental or quasi -governmental agency
other than the City, including the Federal Communications
Commission and the PUC.
City means the area within the corporate limits of the City of
Round Rock, Texas and the governing and administrative body
thereof.
Communications Business means the operations necessary and
incident to Grantee's provision of Communications Services in the
City.
Communications Services mean only the wireless digital
communications provided by Grantee to customers in the City for the
purpose of providing access to wireless internet, private intranet,
e-mail and local area networks.
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Effective Date means the effective date of this franchise
agreement.
FCC means the Federal Communications Commission.
Grantee means Metricom, Inc., a Delaware corporation
authorized to do business in the state of Texas.
Gross Revenue means the gross dollar amount received by
Grantee for Communications Services to customers with billing
addresses located within the City by means of the Ricochet°
Network, excluding (i) local, state, or federal taxes that have
been billed to the subscribers and separately stated on
subscribers' bills; (ii) the right-of-way Use Fee, if any, payable
pursuant to Section 4(A) below and any utility users' tax,
communications tax or similar tax or fee; and (iii) revenue
uncollectible from subscribers (i.e. bad debts) with billing
addresses in the City that was previously included in Gross
Revenue.
Installation means the placement, attachment, installation,
operation, maintenance, removal, reattachment, reinstallation,
replacement and/or relocation of Ricochet° equipment in the public
rights-of-way.
Installation Date means the date that the first radio is
installed by Grantee pursuant to this franchise agreement.
Laws mean 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 franchise agreement, in
effect either as of the effective date hereof or at any time during
the presence of radios in the public rights-of-way.
Municipal Access Program means the discount program described
in Section 4(E) below.
Municipal Facilities means City -owned street light polies,
lighting fixtures, electroliers, or other City -owned structures
located within the municipal rights-of-way and may refer to such
facilities in the singular or plural, as appropriate to the context
in which used.
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Network means a system of radios and other equipment,
consisting of Ricochet® MicroCellular Digital Network, a wireless,
microcellular digital radio communications network owned and
operated by Grantee in the provision of its Communications Services
and installed by Grantee in the public rights-of-way pursuant to
this franchise agreement.
Person means an individual, a corporation, a limited liability
grantee, a general or limited partnership, a sole proprietorship,
a joint venture, a business trust or any other form or business
entity or association.
Provision means any agreement, clause, condition, covenant,
qualification, restriction, reservation, term, or other stipulation
in this franchise agreement that defines or otherwise controls,
establishes, or limits the performance required or permitted by any
party to this franchise agreement. All provisions, whether
covenants or conditions, shall be deemed to be both covenants and
conditions.
Public Rights -of -Way means the surface, the air space above
the surface, and the area below the surface of any public street,
road, highway, lane, court, path, alley, sidewalk, boulevard,
drive, bridge, tunnel, easement or similar property, including all
public utility easements and public service easements as the same
now or may hereafter exist, in which the City holds any property
interest or exercises any rights of management or control and
which, consistent with the purposes for which it was acquired or
dedicated, may be used for the installation of the Network.
PUC means the Texas Public Utility Commission.
Radio means the radio equipment, whether referred to singly or
collectively, to be installed and operated by Grantee hereunder.
Ricochet® or Ricochet® MCDN means Ricochet® MicroCellular
Digital Network, a microcellular digital radio communications
network owned and operated by Metricom.
Services means the mobile digital communications services
provided through Ricochet° by Metricom.
Telecommunications Service means the offering of any type of
telecommunications service, other than the wireless digital
communications services provided by Grantee through Ricochet°, to
the public, or to such classes of users as to be effectively
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available directly to the public, regardless of the facilities
used, by means of the transmission, between or among points
specified by the user, of information of the user's choosing,
without change in the form or content of the information as sent
and received.
Use Agreement means this nonexclusive franchise agreement and
may also refer to the associated right to encroach upon the public
rights-of-way conferred hereunder.
Section 2.
Term
(A) This franchise agreement shall be effective as of the
Effective Date and shall extend for a term of six (6)
years ("Initial Term"). If the Grantee has complied with
all terms and conditions of this franchise agreement
during the Initial Term and unless terminated as provided
below, Grantee shall have the right to automatically
renew this franchise agreement for two (2)
consecutive terms of five (5) years each (each a
"Renewal Term") on substantially the same terms and
conditions. In order to exercise this right, Grantee
shall give written notice to the City of its desire to
renew this franchise agreement not less than 90 days and
not more than 120 days prior to the expiration of the
Initial or first Renewal Term.
(B) This franchise agreement and all rights of Grantee
hereunder shall automatically terminate upon the
expiration of the Initial Term or, if applicable, a
Renewal Term, except as otherwise provided above. If any
law or agency rule or regulation is adopted affecting the
City's ability or right to (i) manage the public rights-
of-way, (ii) obtain compensation for use of the public
rights-of-way, or (iii) protect subscribers within the
City on matters such as customer service or customer
protection, Grantee and the City shall meet to negotiate
with diligence and in good faith another franchise
agreement, or amendment to this franchise agreement that,
to the extent allowed by law, maintains each party's
respective benefits under this franchise agreement.
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Section 3.
Grant of Rights
(A) Subject to Grantee's acceptance of the terms of this
franchise agreement, the City hereby grants Grantee a
franchise to locate, place, attach, install, operate and
maintain radios and/or other Network equipment on
facilities located in the public rights-of-way in the
City of Round Rock, Texas. Grantee hereby acknowledges
and agrees that the location, attachment, installation,
operation, maintenance, removal, reattachment,
reinstallation, relocation and/or replacement of any
radios and/or other Network equipment constitutes use of
the public rights-of-way entitling the City to receive
compensation.
(B) Grantee hereby acknowledges and agrees that this
franchise agreement allows only the use of the public
rights-of-way by Grantee in the provision of
Communications Services in the City. If Grantee intends
to provide any Telecommunications Service within the
City, Grantee shall first notify the City in writing and
shall comply with all applicable laws governing the
additional services being offered, including the payment
of independent consideration, to be paid directly or
indirectly to the City.
(C) Any and all rights granted to Grantee under this
franchise agreement shall be subject to the prior and
continuing right of the City to use any and all parts of
the public rights-of-way exclusively or concurrently with
any other person having the legal right to use the public
rights-of-way. In addition, any and all rights granted
by this franchise agreement shall be subject to all
deeds, easements, dedications, conditions, covenants,
restrictions, encumbrances and claims of title of record
which may affect the public rights-of-way. Nothing in
this franchise agreement shall be deemed to grant,
convey, create, or vest in Grantee a real property
interest in land, including but not limited to, any fee,
leasehold interest, or easement. Any work performed
pursuant to the rights granted under this franchise
agreement may, at the City's option, be subject to the
reasonable prior review and approval of the City.
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(D) This franchise agreement and all rights granted by it are
nonexclusive. The City reserves the right to grant other
and future franchise agreement for the use of public
rights-of-way in the City to other persons as the City
deems appropriate. This franchise agreement does not
establish any priority for the use of the public rights-
of-way by Grantee or by any present or future
franchisees, users, or other permit holders. In the
event of any dispute as to the priority of use of the
public rights-of-way, the first priority shall be for
public circulation generally, the second priority to the
City in the performance of its various functions, and
thereafter, as between franchisees, users and other
permit holders, priority shall be on a first-come first-
served basis.
(E) This franchise agreement does not relieve Grantee of any
obligation to obtain any permits, licenses and other
approvals from the City necessary for the construction,
repair or maintenance of the Network for the provision of
Communications Services. If the attachment,
installation, operation, maintenance, or location of the
radios in the public rights-of-way shall require any
permits, Grantee shall, if required under applicable City
ordinances or regulations, apply for the appropriate
permits and pay any assessed permit fees. The City shall
promptly respond to Grantee's requests for permits and
shall otherwise cooperate with Grantee in facilitating
the deployment of Ricochet° in the public rights-of-way
in a reasonable and timely manner. The proposed
locations of Grantee's planned initial installation of
radios shall be provided to the City promptly after
Grantee's review of available street light maps and prior
to deployment of the radios.
(F) Upon the completion of installation, Grantee shall
promptly furnish the City with suitable documentation
showing the exact location of the radios in the public
rights-of-way.
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Section 4.
Compensation
Grantee shall be solely responsible for the payment of all
lawful fees in connection with Grantee's performance under this
franchise agreement, including the fees set forth below:
(A) Grantee shall pay the City throughout the term of this
franchise agreement a fee equal to five percent (5%) of
its Gross Revenues for the use of the public rights-of-
way (the "Use Fee") which amount will be collected from
subscribers of the services with billing addresses in the
City and remitted to the City as provided herein.
Grantee hereby acknowledges and agrees that this Use Fee
constitutes just and reasonable compensation to the City
for Grantee's use of the public rights-of-way as provided
by this franchise agreement. The Use Fee shall be
exclusive of and in addition to all special assessments
and taxes of whatever nature, including but not
limited to, ad valorem taxes, license fees, permit
fees, or other taxes, charges or fees of general
applicability that the City may from time to time impose.
(B) Grantee shall pay the Use Fee on a quarterly basis; it
shall be due within forty-five (45) days following the
last day of each calendar quarter. With each payment
Grantee shall submit a written report, verified by an
officer of Grantee, summarizing Grantee's Gross Revenue
for the previous quarter and computing the Use Fee due
the City for that quarter.
(C) The City may audit Grantee at any time upon ten (10)
business days' prior written notice to verify the
accuracy of the Use Fee paid to the City. Grantee shall
pay any additional amounts due the City as reported in
any city audit within thirty (30) days following
Grantee's receipt of the City's submission to Grantee of
an invoice for such sum, together with supporting
documentation.
(D) All sums due the City under this franchise agreement that
are not paid when due shall bear interest at the rate of
ten percent (10%) per annum, computed monthly.
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(E) Municipal Access Program. As additional consideration
for the City's grant of this franchise agreement,
throughout the Initial Term or any Renewal Term of this
franchise agreement, the City shall have the right to
receive up to the maximum number specified below (based
upon the City's population) of free Ricochet° internet
access subscriptions. These subscriptions allow for
internet access and e-mail only. Services such as
newsgroups, LAN access, and dial -in internet access will
not be provided by Grantee, but may be obtained through
an authorized Ricochet° service provider, at the City's
expense. The number of free subscriptions which the City
may receive shall be determined in accordance with the
City's official population as and when determined by the
2000 census. The number of subscriptions allowed per
population is as follows:
Population Size Maximum
Subscriptions
Less than 9,999 2
10,000 - 24,999 3
25,000 - 49,999 4
50,000 - 74,999 5
75,000 - 99,999 6
100,000 - 149,999 8
150,000 - 199,999 10
200,000 - 299,999 12
300,000 - 399,999 14
400,000 - 499,000 16
500,000 or more 20
The City shall designate one person who shall be
responsible for ordering and receiving any subscriptions.
To take advantage of this program, the designated
individual should contact Grantee's local office
(typically the Local Market Manager). The City's right
to use the subscriptions shall commence at the time the
Ricochet° service is commercially available in the City
and shall extend until the expiration of the term of this
franchise agreement or through the length of time that
radios are deployed in the public rights-of-way,
whichever is shorter. The City's use of the
subscriptions shall be subject to the standard Ricochet°
terms and conditions of use together with those of the
authorized Ricochet® service provider from which the City
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obtains service. The City acknowledges that modems and
equipment required to utilize the subscriptions and any
additional service subscriptions or service options the
City may desire will need to be obtained from an
authorized retailer at negotiated rates or market rates
current from time to time. The City shall use all
subscriptions provided pursuant to this section solely
for its own use and shall not be entitled to resell,
distribute, or otherwise permit the use of same by any
other person, excepting a local public entity that
provides public service within the corporate boundaries
of the City (e.g. municipal schools, public safety, or
fire departments, etc.).
(F) Within thirty (30) days following the Effective Date of
this franchise agreement, Grantee shall provide the City
with a performance bond ("Bond") in the amount of
$5,000.00 issued by a surety and in a form acceptable to
the City. This Bond shall serve as security to the City
for the faithful performance by Grantee of the provisions
of this franchise agreement pursuant to the terms and
conditions of this franchise agreement. The Bond shall
provide that the City may draw on the Bond by presenting
the surety with (i) a written statement, signed by the
City Manager, that sets forth the basis of the City's
demand and contains an appropriate reference to the
applicable law, ordinance or provision of this franchise
agreement under which the City is due the sum demanded
and (ii) a copy of the Bond. Grantee shall keep in
effect and maintain this Bond for the amount specified,
at all times during the term on this franchise agreement.
The Bond shall provide that the surety shall not cancel
the Bond unless the surety provides written notice to the
City at least sixty (60) days in advance of such
cancellation.
Section 6.
Use of Public Rights -of -Way
(A) Grantee shall comply with any applicable City regulations
regarding construction in the public rights-of-way.
(B) Grantee may install its Network in or on poles,
facilities or other structures owned by the City or other
parties that are located within the public rights-of-way
subject to authorization by these parties and compliance
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with City requirements. Upon request, Grantee shall
provide the City with documentation of its authorization
to use third -party facilities.
(C) Upon completion of Grantee's installation of its Network
within the City, Grantee shall provide the City with a
written report that shows the exact location of Network
equipment. Thereafter, Grantee shall provide the City
with such reports on an annual basis or from time to time
as reasonably requested by the City and that apply to
Network elements installed during the previous quarter.
(D) The Network shall not be installed in a manner that
places an undue burden on the present or future use of
the public rights-of-way by the City and the public. If
the City determines that any portion of the Network
places an undue burden on the public rights-of-way,
Grantee, at its discretion, shall (1) modify the Network
or (2) take other actions determined by the City to be in
the public interest to remove or alleviate the burden.
The Network modification shall be at Grantee's sole cost
and expense. The City shall specify a reasonable time
period to perform the modification. In consultation with
Grantee, the City shall propose alternative sites for
Grantee's equipment.
(E) All Network equipment shall be installed so that it
causes minimal interference with the public's use of the
public rights-of-way and with the rights and/or
reasonable convenience of the owners of any properties
that adjoin Grantee's installed equipment.
(F) Grantee, at Grantee's sole cost and expense, and in a
manner approved by the City, shall promptly restore any
portion of the public rights-of-way that are in any way
disturbed or damaged by the installation of the Network
to as good condition as such property was in immediately
prior to the disturbance or damage. Grantee shall
diligently commence such restoration within fifteen (15)
calendar days following the date that Grantee first
became aware of the disturbance or damage; or if
damage results from equipment removal, within fifteen
(15) calendar days following removal of the equipment.
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(G) Grantee, at Grantee's sole cost and expense, shall
protect, support, disconnect or remove from the public
rights-of-way any Network equipment, whether located on
City -owned facilities or third -party facilities, when
required by the City due to street or other public
excavation, construction, repair, grading, regrading or
traffic conditions; the installation of sewers, drains,
water pipes or municipally -owned facilities of any kind;
the vacation, construction or relocation of streets or
any other type of structure or improvement of a public
agency; or any other type of improvement undertaken by or
on behalf of the City and necessary for the public
health, safety or welfare.
(H) Upon the revocation, termination or expiration without
extension or renewal of this franchise agreement,
Grantee shall cease operating its Network and
providing Communications Services within the City within
ten (10) business days. Within six (6) months following
such revocation, termination or expiration and in
accordance with directions from the City, Grantee shall
remove all Network equipment located in the public
rights-of-way. If Grantee has not removed all Network
equipment from the public rights-of-way within (6) months
following revocation, termination or expiration of this
franchise agreement, the City may deem all of Grantee's
Network equipment remaining in the public rights-of-way
abandoned and, at the City's sole option, (i) take
possession of and title to such property or (ii) take any
and all legal action necessary to compel Grantee to
remove the abandoned property.
(I) Within six (6) months following revocation, termination
or expiration of this franchise agreement, Grantee shall
also restore any public or private property disturbed or
damaged by removal of the Network. If Grantee has not
restored all such property within this time, the City, at
the City's sole option, may perform or have performed any
necessary restoration work, in which case Grantee shall
reimburse the City within ten (10) business days of
receipt of written notice from the City for any and all
costs incurred in performing or having the work
performed.
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Section 7.
Indemnification
(A) The City shall not at any time be liable for any injury
or damage occurring to any person or property from any
cause whatsoever that arises out of the installation of
the Network, the construction, maintenance, repair, use,
operation, condition or dismantling of the Network, the
provision of Communications Services or Grantee's
Communications Business, unless arising from or caused by
the negligence or willful misconduct of the City.
(B) Grantee, at Grantee's sole cost and expense, shall
indemnify and hold harmless the City, its officers,
boards, commissions, agents, employees and volunteers
("Indemnitees"), from and against any and all
liabilities, obligations, damages, penalties, claims,
liens, costs, charges, losses and expenses, whether legal
or equitable, which may be imposed upon, incurred by or
asserted against any Indemnitees by reason of any
personal injury or property damage or any act or omission
of Grantee, its personnel, employees, agents, contractors
or subcontractors which may arise out of or be in any way
connected with (i) installation of the Network; (ii) the
construction, operation, maintenance or condition of the
Network; (iii) the provision of any services by means of
the Network, by Grantee; (iv) any claim or lien arising
out of work, labor, materials or supplies provided or
supplied to Grantee, its contractors or subcontractors;
or (iv) Grantee's failure to comply with this franchise
agreement or any federal, state or local law, ordinance,
rule or regulation.
(C) Grantee hereby undertakes and assumes, for
of Grantee, its officers, agents,
subcontractors, agents and employees,
and on behalf
contractors.,
any risk of
dangerous conditions, on or about any City -owned or
controlled property or facilities including, but not
limited to, the public rights-of-way, unless such
conditions arise from or are caused by the negligence or
willful misconduct of the City. In addition, Grantee
hereby agrees to and shall indemnify and hold harmless
any Indemnitees against and from any claim asserted or
liability imposed upon any Indemnitees for any personal
injury or property damage incurred or asserted by Grantee
or any of its employees, agents, servants, contractors or
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subcontractors, and arising from the installation of the
Network or installation, operation, maintenance or
condition of the Network, except to the extent caused by
or arising from the negligence or willful misconduct of
the City.
(D) In the event any action, lawsuit or other proceeding is
brought against any Indemnitees by reason of any matter
for which the Indemnitees are indemnified under
Subsection (B) of this section, the City shall give
Grantee prompt notice of any claim or commencement of any
action, lawsuit or other proceeding; Grantee, at
Grantee's sole cost and expense, shall defend the same
with legal counsel selected by Grantee and reasonably
acceptable to the City and with reasonable participation
by the City. In such an event, Grantee shall not admit
liability in any matter on behalf of any Indemnitees
without the prior written consent of the City.
Section 8.
Insurance
(A) Grantee shall procure and maintain at all times, in full
force and effect, a policy or policies of insurance to
provide coverages as specified herein, naming the City an
additional insured and covering risks related to the
attachment, installation, operation, maintenance,
removal, reattachment, reinstallation, relocation
and/or replacement of any radios and/or other Network
equipment and the construction, installation, operation,
maintenance or condition of the Network.
(B) Primary Liability Insurance Coverage.
Commercial General Liability: $ 1,000,000 per occurrence;
Property Damage Liability: $ 1,000,000 per occurrence;
Automobile Liability: $ 1,000,000 per accident,
including, but not limited to, all owned, hired or non -
owned motor vehicles used in conjunction with the rights
granted under this franchise agreement.
Worker's Compensation: As required by law; and
Employer's Liability as follows: $ 1,000,000 per
accident.
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(C) Excess Liability Insurance Umbrella.
$5,000,000, including Primary Coverage, for each coverage
listed.
(D) Revisions to Required Coverage.
At the reasonable recommendation of the City's Risk
Manager or the City Manager or his/her designee, the City
may at any time revise insurance coverage requirements
and limits required by this franchise agreement. Grantee
agrees that within thirty (30) days of receipt of written
notice from the City, Grantee will implement all such
revisions requested by the City; however, Grantee
reserves the right to review and/or challenge any
proposed increase in policy limits. Grantee shall notify
and/or require its insurance company to notify the City
at least thirty (30) days in advance of any material
reduction in policy limits or of any cancellation,
termination or non -renewal.
(E) Underwriters and Certificates.
Grantee shall procure and maintain its insurance with
underwriters authorized to do business in the State of
Texas and who are reasonably acceptable to the City in
terms of solvency and financial strength. Within sixty
(60) days following adoption of this franchise agreement
by the City Council, Grantee shall furnish the City with
certificates of insurance signed by the respective
companies as proof that it has obtained the types and
amounts of insurance coverage required herein. In
addition, Grantee shall, on demand, provide the City with
evidence that it has maintained such coverage in full
force and effect.
(F) Deductibles.
Deductible or self-insured retention limits on any line
of coverage required herein shall not exceed $25,000 in
the annual aggregate unless the limit per occurrence, or
per line of coverage, or aggregate is otherwise approved
by the City.
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(G) No Limitation of Liability.
The insurance requirements set forth in this section and
any recovery by the City of any sum by reason of any
insurance policy required under this franchise agreement
shall in no way be construed or effected to limit or in
any way affect Grantee's liability to the City and other
persons as provided by this franchise agreement or law.
Section 9.
Defaults
The occurrence at any time during the term of this franchise
agreement of one or more of the following events shall constitute
an "Event of Default" under this franchise agreement:
(1) if Grantee fails to pay the Use Fee on or before the
respective due date.
(2) if either party materially breaches or violates any of
the terms, covenants, representations or warranties set
forth in this franchise agreement or fails to perform any
duty or obligation required by this franchise agreement.
(3) if Grantee (i) files a voluntary petition in bankruptcy;
(ii) is adjudicated insolvent; (iii) files any petition
or fails to contest any petition filed against it seeking
any reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief
for itself under any laws relating to bankruptcy,
insolvency or other relief for debtors; (iv) seeks,
consents to or acquiesces in the appointment of any
trustee, receiver, master, custodian or liquidator of
Grantee, any of Grantee's property or revenues, issues,
earnings, or profits thereof; or (v) makes an assignment
for the benefit of creditors.
(4) if either party violates any existing or future federal,
state, or local laws or any existing or future
ordinances, rules and regulations of the City; provided,
however, that no Event of Default shall be deemed to
occur or exist during the pendency of an legal action
which the City or Grantee may initiate against the other
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under or in connection with such law, ordinance, rule or
regulation.
Section 10.
Uncured Defaults and Remedies
(A) If an Event of Default occurs, the non -defaulting party
shall provide the other party with written notice and an
opportunity to cure such Event of Default. If any Event
of Default is not cured within sixty (60) days of receipt
of written notice (thirty (30) days for any monetary
default) of default (or, if such default is not curable
within sixty (60) days, if the defaulting party fails to
commence such cure within sixty (60) days or fails
thereafter diligently to prosecute such cure to
completion), such Event of Default shall, without further
notice from the non -defaulting party, become an "Uncured
Default" and the non -defaulting party immediately may
exercise the remedies provided in Subsection (B) below.
(B) Upon the occurrence of an Uncured Default, the non -
defaulting party shall be entitled to exercise, at the
same time or at different times, any of the following
remedies, all of which shall be cumulative of and without
limitation to any other available rights or remedies:
(1) terminate this franchise agreement immediately.
Upon such termination, Grantee and City shall
forfeit all rights granted to them under this
franchise agreement, and, except as to Grantee's
unperformed obligations and existing liabilities as
of the date of termination, this franchise
agreement shall automatically be deemed to have no
further force or effect. Grantee shall remain
obligated to pay, and the City shall retain the
right to collect, the Use Fees and any other
payments due up to the date of termination. In this
event, Grantee shall comply with the applicable
provisions of Section 4 "Compensation" of this
franchise agreement. The non -defaulting party's
right to terminate this franchise agreement under
this subsection shall not be construed to
constitute any kind of limitation on its right to
terminate this franchise agreement for any other
reason provided in this franchise agreement.
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(2) commence an action at law for monetary damages, or
in equity for injunctive relief or specific
performance of any of the provisions of this
franchise agreement which, as a matter of equity,
are specifically enforceable.
Section 11.
Information and Notices
(A) Upon the City's request, Grantee shall provide copies of
all documents which Grantee files with or sends to the
FCC and/or the PUC and copies of records Grantee is
required to maintain under FCC and/or PUC regulations
directly relating to this franchise agreement.
(B) Each party shall provide the other party with copies of
all pleadings in all lawsuits to which it is a party and
that pertain to the terms and conditions of this
franchise agreement; the attachment, installation,
operation, maintenance, removal, reattachment,
reinstallation, relocation and/or replacement of any
radios and/or other system equipment in or on any
facility located in the public rights-of-way within the
City; and/or the provision of Communications Services
within thirty (30) days of receipt of same.
(C) From time to time, during normal business hours and on a
non -disruptive basis, the City may review all portions of
Grantee's books and records that are reasonably necessary
to monitor compliance by Grantee with the terms and
conditions of this franchise agreement. Such records
shall include, but shall not be limited to, the financial
information underlying reports provided to the City in
order to allow audits in accordance with Section 4(C).
However, Grantee shall not be required to release
Grantee's income tax returns or information directly
underlying the preparation of any such returns. To the
extent permitted by law, the City shall treat any
information released to it by Grantee on a confidential
basis.
(D) Notices required pursuant to the provisions of this
franchise agreement shall be conclusively determined to
have been delivered when (1) hand -delivered to the other
party, its agents, employees, servants or
representatives, or (2) received by the other party by
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United States Mail, postage prepaid, return receipt
requested, addressed:
TO THE CITY:
City of Round Rock
Attn: City Manager
221 East Main Street
Round Rock, TX 78664
City of Round Rock
City Attorney's Office
309 East Main Street
Round Rock, TX 78664
TO GRANTEE:
Metricom, Inc.
Attn: Network Real Estate Dept.
333 West Julian Street
San Jose, CA 95110
Section 12.
Non-discrimination Covenant
Grantee shall not discriminate against any person on the basis
of race, color, national origin, religion, handicap, sex, sexual
orientation or familial status in the provision of Communications
Services, in the receipt of benefits from Grantee's Communications
Business, in any opportunities for employment with Grantee that
Grantee may offer or in the installation of the Network.
Section 13.
No Waiver
Failure of either party to insist upon the performance of any
term or provision of this franchise agreement or to exercise any
rights that it may have, either under this franchise agreement or
the law, shall not constitute a waiver of its right to insist upon
appropriate performance or to assert any such right on any future
occasion.
19
Section 14.
Governing Law and Venue
This franchise agreement shall be construed pursuant to and in
accordance with the laws of the United States of America and the
State of Texas. In any action at law or in equity, arising out of
the terms of this franchise agreement, Grantee's provision of
Communications Services, the installation of the Network, any
element of the Network, or Grantee's use of the public rights-of-
way, venue for such action shall lie exclusively in the respective
state and/or federal courts located in Williamson County, Texas or
in the United States District Court for the Western District of
Texas. In any such action, the prevailing party shall be entitled
to recover from the other party all reasonable attorney's fees and
other expenses incurred in bringing or defending, as the case may
be, such action.
Section 15.
Arbitration and Mediation
(A) All parties hereby expressly agree that no claims or
disputes arising out of or relating to this franchise
agreement or any breach or violation thereof shall be
decided by any arbitration proceeding, including without
limitation, any proceeding under the Federal Arbitration
Act (9 U.S.C. Section 1-14) or any applicable state
arbitration statute.
(B) Any claim, dispute or other matter in question arising
out of or related to this franchise agreement shall be
subject to mediation.
20
(C) All parties shall endeavor to resolve claims, disputes
and other matters in question between them by mediation.
Request for mediation shall be filed in writing with the
other party to this franchise agreement. Mediation shall
proceed in advance of legal or equitable proceedings,
which shall be stayed pending mediation for a period of
sixty (60) days from the date of filing, unless stayed
for a longer period by agreement of the parties or court
order.
(D) The parties shall share the mediator's fee and any filing
fees equally. The mediation shall be held in Williamson
County, Texas, unless another location is mutually agreed
upon. Agreements reached in mediation shall be
enforceable as settlement agreements in any court having
jurisdiction thereof.
Section 16.
Miscellaneous Provisions
(A) In the event either party's performance of any of the
terms, conditions or obligation's required by this
franchise agreement is prevented by a cause or event that
is not within its reasonable control, such non-
performance shall be deemed excused for the period of
such inability. Causes or events that are not within
either party's control
shall include, but not be limited to, acts of God,
strikes, sabotage, riots or civil disturbances, failure
or loss of utilities, explosions and natural disasters.
(B) Headings and titles that are used in this franchise
agreement are for reference purposes only and shall not
be deemed a part of this franchise agreement.
(C) This franchise agreement contains the entire
understanding and franchise agreement between the City
and Grantee as to the matters contained herein. Any prior
or contemporaneous oral or written agreement is hereby
declared null and void to the extent in conflict with the
terms and conditions of this franchise agreement. This
franchise agreement shall not be amended unless agreed to
in writing by both parties and approved by the City
Council of the City.
21
(D) If any provision of this franchise agreement is held to
be invalid, illegal or unenforceable by a final order
entered by a court of competent jurisdiction, the
validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired.
For purposes of this franchise agreement, a court order
shall be final only to the extent that all available
legal rights and remedies pertaining to such order,
including, without limitation, all available appeals,
have been exhausted. In such an event, the City and
Grantee agree that they shall amend or have amended this
franchise agreement to comply with such final order
entered by a court of competent jurisdiction.
(E) Assignment. This franchise agreement shall not be
assigned by Grantee without the express written consent
of the City, which consent shall not be unreasonably
withheld, conditioned, or delayed. Notwithstanding the
foregoing, the transfer of the rights and obligations of
Grantee hereunder to a parent, subsidiary, successor, or
financially viable affiliate shall not be deemed an
assignment for the purposes of this franchise agreement.
Section 17.
Effective Date
This ordinance takes effect on the 8th day of March, 2001.
Grantee will begin installation within twelve (12) months of the
Effective Date or this franchise agreement shall expire in all
respects.
H.
A. All ordinances, parts of ordinances, or resolutions in
conflict herewith are expressly repealed.
B. The invalidity of any section or provision of this
ordinance shall not invalidate other sections or provisions
thereof.
22
C. The City Council hereby finds and declares that written
notice of the date, hour, place and subject of the meeting at which
this ordinance was adopted was posted and that such meeting was
open to the public as required by law at all times during which
this ordinance and the subject matter hereof were discussed,
considered and formally acted upon, all as required by the Open
Meetings Act, Chapter 551, Texas Government Code, as amended, and
the Act.
Alternative 1.
By motion duly made, seconded and passed with an affirmative
vote of all the Council members present, the requirement for
reading this ordinance on two separate days was dispensed with.
READ, PASSED, and ADOPTED on first reading this day
of , 2001.
Alternative 2.
READ and APPROVED on first reading this the day of
ja/ttl. CLAAIV, , 2001.
READ, APPROVED and ADOPTED on second reading this the
day of 7Y)
ST:
1';
JOi4 E LAND, City Secretary
, 2001.
23
RO S. "A . S UKA, 'R . , Mayor
City of Round Rock, Texas
DATE: March 2, 2001
SUBJECT: City Council Meeting — March 8, 2001
ITEM: 9.A.1. Consider an ordinance granting a franchise to Metricom, Inc. for
use of public rights-of-way within the City of Round Rock for the
purpose of construction, maintenance and operation of Metricom's
wireless digital data communications radio network. (Second
Reading)
Resource: Will Hampton, Communications Director
History: Metricom is a new provider of high-speed wireless Internet service in the
Central Texas area. The City Council received a presentation from David
Pluenneke, a consultant from CCG Inc., detailing Metricom's services on
October 12, 2000.
Funding:
Cost: None
Source of funds: N/A
Outside Resources: N/A
Impact: Metricom will give Round Rock residents and businesses a new option to access
the Internet via wireless technology. The company will mount its relatively
unobtrusive antennas — small plastic boxes — on existing light poles around the
City. Some of the light poles are owned by the City of Round Rock, and some
by TXU.
Benefit: The City will receive a 5 percent franchise fee from Metricom's gross revenues
from Round Rock customers.
Public Comment: None
Sponsor: N/A