HomeMy WebLinkAboutOrd 1800 - Wireless Digital Communications Radio Network Franchise with Metricom Inc Ji ;G)
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City of
Washington
Ordinance No. IX4 M
AN ORDINANCE OF THE CITY OF TUKWILA, WASHINGTON,
GRANTING A NON EXCLUSIVE FRANCHISE TO METRICOM,
INCORPORATED, FOR THE PURPOSES OF INSTALLING,
OPERATING, AND MAINTAINING A WIRELESS DIGITAL
COMMUNICATIONS RADIO NETWORK IN CERTAIN PUBLIC
RIGHTS -OF -WAY IN THE CITY.
WHEREAS, METRICOM, Inc., hereinafter referred to as "METRICOM is a wireless
communications company providing wireless data transmission services to customers in the Puget
Sound Region, and
WHEREAS, METRICOM desires to use certain portions of City of Tukwila, hereinafter
referred to as "CITY right -of -ways for the installation, operation, and maintenance of their
wireless radio network system, and
WHEREAS, the CITY Council has determined that the use of portions of the CITY's rights
of -way for installation, maintenance, and operation of such wireless radio network is appropriate
from the standpoint of the benefits derived by citizens and local business which may result from the
use of such services, and
WHEREAS, the CITY Council also recognizes that the use of public rights -of -way must be
restricted to allow for the construction of amenities necessary to serve the future needs of the
citizens of Tukwila and that the use of such rights -of -way will provide revenues to METRICOM and
should not be granted without compensation to the CITY,
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF TUKWILA,
WASHINGTON, HEREBY ORDAINS AS FOLLOWS:
Section 1. Non exclusive Franchise Granted. The CITY hereby grants to METRICOM, the
franchise rights and authority to construct, replace, repair, monitor, maintain, use and operate the
equipment and facilities for a wireless digital communications system, subject to the conditions
prescribed in this Ordinance, for that portion of the CITY -owned properties or rights -of -way
depicted in Exhibit A attached hereto, as same might be amended from time to time by the Director
of Public Works or his or her designee as provided in Section 2 below.
Such franchise shall not be deemed to be exclusive to METRICOM and shall in no way
prohibit or limit the CITY's ability to grant other franchises, permits, or rights along, over, or under
the areas to which this franchise has been granted to METRICOM. This franchise shall in no way
interfere with existing utilities or in any way limit, prohibit, or prevent, the CITY from using the
franchise area nor affect the CITY's jurisdiction over such area in any way.
Section 2. Authority. The Director of Public Works or his or her designee is hereby granted
the authority to administer and enforce the terms and provisions of this Ordinance and may
develop such rules, policies, and procedures as he or she deems necessary to carry out the
provisions contained herein; provided that such rules policies and procedures shall be consistent
with the terms and provisions contained herein and do not preclude the exercise of franchise rights
by METRICOM nor increase Metricom's financial obligations beyond the terms and conditions of
this Ordinance.
Section 3. Construction Provisions and Standards. The following provisions shall be
considered mandatory and failure to abide by any conditions described herein shall be deemed as
non compliance with the terms of this franchise and can result in some or all of the penalties
specified in Section 4.
A. Permit Required No installation, construction, maintenance, or repairs shall be
undertaken in the CITY without first obtaining a Franchise Utility Permit from the CITY's
Department of Public Works.
B. Coordination All capital construction projects performed by METRICOM within the
franchise area shall be coordinated with the Engineering Division of the Public Works
Department to ensure consistency with future CITY Capital Improvement Projects.
C. Construction Standards Any construction, installation, maintenance, and restoration
activities performed by or for METRICOM within the franchise area shall be conducted
and located so as to produce the least amount of interference with the free passage of
pedestrian and vehicular traffic. All construction, installation, maintenance, and
restoration activities shall be conducted such that they conform to the most current CITY
standards in effect at the time that such activities take place.
D. Underground Installation Required All installation of fiber -optic cables and junction
boxes or other vaulted system components shall be installed underground unless
otherwise exempted from this requirement, in writing, by the Director of Public Works
for the CITY.
E. Relocation Whenever the CITY determines that it is necessary for any of METRICOM's
facilities or other system components to be moved or relocated to accommodate the
maintenance, construction, or enhancement of any public amenity in the franchise area,
or for interference with any CITY operations or public needs as determined by the CITY,
the CITY shall notify METRICOM in writing to request such relocation and METRICOM
shall promptly submit plans for such relocation. Within thirty (30) days of the approval
by the CITY of the plans for relocation, METRICOM shall relocate those facilities or
structures designated by the CITY. All costs of moving or relocating such facilities or
structures, including but not limited to costs for design, engineering, construction, or
interruptions to METRICOM customers, shall be the sole responsibility of METRICOM.
F. Removal or Abandonment Upon the removal from service of any transmission device
or any other associated structures, facilities and amenities, METRICOM shall comply
with all applicable standards and requirements prescribed by the CITY's Public Works
Department for the removal or abandonment of said structures and transmission devices.
G. Performance Bond The Public Works Director for the CITY reserves the right to require
METRICOM to obtain a performance bond for any work which the Director deems to
pose a threat to any property or to public safety. Such bond shall be issued by a company
licensed by proper authority of the State of Washington, shall be in the form attached
hereto as Exhibit B, and shall be filed with the CITY Clerk's Office until release is
authorized by the Public Works Director. Such bond shall be in an amount reasonably
related to the estimated cost of repairing any City infrastructure which could be damaged
during any work permitted by this Ordinance.
H. "One -Call" Location Liability METRICOM shall subscribe to and maintain
membership in the regional "One Call" utility location service and shall promptly locate
all of its facilities upon request. The CITY shall not be liable for any damages to
METRICOM system components or for interruptions in service to METRICOM customers
which are a direct result of work performed for any CITY project for which METRICOM
has failed to properly locate its facilities within the prescribed time limits and guidelines
established by One Call. The CITY shall also not be liable for any damages to
METRICOM system components or for interruptions in service to METRICOM customers
resulting from work performed under any Franchise Utility Permit issued by the CITY.
I. As -built Plans Required METRICOM shall maintain accurate engineering plans and
details of all installations within the CITY and shall provide such information in both
paper form and METRICOM's electronic form prior to close -out of any Franchise Utility
Permit issued by the CITY any work undertaken by METRICOM pursuant to this
Ordinance. The CITY shall determine the acceptability of any as -built submittals
provided under this Section.
Section 4. Franchise Compliance.
A. Franchise Violations The failure by METRICOM to comply fully with any of the
provisions of this Franchise Agreement may result in a written notice from the CITY
which describes the violations of the franchise and requests remedial action within thirty
(30) days of receipt of such notice. If METRICOM has not attained full compliance at the
METRICOM.DOC 5/29/97 2
end of the thirty (30) day period following receipt of the violation notification, the CITY
may declare an immediate forfeiture and termination of all franchise rights and
privileges. The demonstration of due diligence on the part of METRICOM may be
grounds for the grant of an extension in the period during which compliance is to be
attained; provided that, METRICOM continues to pursue correction of any violations of
the Franchise Agreement as noted by the CITY. Notwithstanding the foregoing, the cure
period for any monetary default is ten (10) days from receipt of written notice.
B. Emergency Actions If any actions by METRICOM result in a situation deemed by the
CITY to create a threat to life or property, the CITY may declare an immediate
termination and forfeiture of all Franchise Agreement terms and privileges. Such
termination and forfeiture shall be effective upon delivery of written notification to
METRICOM. In the event that this franchise is terminated under emergency threat to life
or property, METRICOM shall be liable for all costs and expenses necessary to restore
safety or correct the sources of any emergency threats.
C. Other Remedies Nothing contained in this Franchise Agreement shall limit the CITY's
available remedies in the event of METRICOM's failure to comply with the provisions of
this Agreement, to include but not limited to, the CITY's right to sue for specific
performance and /or damages.
D. Removal of System Upon termination of this Franchise Agreement, by expiration of the
term, upon a default, or as otherwise provided herein, METRICOM shall promptly
remove all transmission system components and facilities; provided that, at the request of
METRICOM, the CITY, at its sole option, may allow METRICOM to abandon its facilities
in place.
Section 5. Insurance. METRICOM shall maintain liability insurance written on a per
occurrence basis during the full term of this franchise for personal injuries and property damages.
The policy shall name the CITY as additionally insured and shall contain coverage in the following
minimum amounts per separate occurrence:
Personal Injury: $1,000,000. per person $5,000,000. per occurrence.
Property Damage: $1,000,000. per claimant $5,000,000. per occurrence.
Such insurance policy shall also contain a policy provision that it cannot be revoked,
canceled, or reduced in liability limits without sixty (60) days advance written notice to the CITY
and METRICOM shall annually provide proof of such insurance to the CITY Clerk's Office.
Section 6. Other Permits Approvals. Nothing in this agreement shall relieve METRICOM
from any obligation to obtain approvals or necessary permits from applicable federal, state, and
CITY authorities for all activities in the franchise area.
Section 7. Assignments. The rights, privileges, and benefits provided by this franchise shall
not be assignable by sale, merger, lease, or otherwise, whether voluntary or involuntary, without the
express written consent of the CITY, not to be unreasonably withheld, delayed or conditioned.
Notwithstanding the foregoing, the CITY's prior written consent shall not be required for
METRICOM to assign its rights under this franchise in whole or in part to a parent company,
subsidiary, affiliate, or a lender as part of a corporate reorganization, financing, or refinancing
activity, or to any successor -in- interest or entity acquiring fifty -one percent (51 or more of
METRICOM's stock or assets, provided that any successors or assigns shall agree to assume all
obligations of METRICOM and provided further that they shall bind themselves to the conditions
and terms of this franchise to the same extent as METRICOM, by means of a fully executed legal
instrument indicating such commitments.
Section 8. Franchise Term. The franchise rights granted herein shall remain in full force
and effect for a period of three (3) years from the formal acceptance of this Franchise Ordinance, OR
until 180 days following the adoption by the CITY Council of a comprehensive right -of -way
management plan governing the location and operation of telecommunications service providers in
the CITY, whichever shall occur first. Formal acceptance shall be the date upon which the CITY
Clerk receives a document from METRICOM acknowledging consent to the terms and conditions
herein in the form attached hereto as Exhibit C. Failure on the part of METRICOM to file said
consent within thirty (30) days of the effective date of this Ordinance shall void and nullify any and
all rights granted under this franchise.
METRICOM.DOC 5/29/97 3
Section 9. Franchise Administration Costs. The CITY shall be entitled to reimbursement of
all reasonable costs, including reasonable overhead costs, associated with the administration of this
Ordinance. These costs shall include wages, benefits, equipment, and supplies for activities such as
plan review, permit processing, and permit inspections. Such costs shall be billed to METRICOM
on a quarterly basis and METRICOM shall pay such costs within thirty (30) days of receipt of such
bills. Each bill shall include verifiable detail as to the nature of the costs incurred. Failure by
METRICOM to make full payment of bills within the time specified shall be considered a material
breach of this agreement.
Section 10. Franchise Establishment Costs Reimbursement. CITY acknowledges its
understanding that METRICOM customarily reimburses cities for reasonable expenses incurred by
them in the review, drafting, administration and implementation of METRICOM's agreement, not
to exceed $2,000 in the aggregate. However, METRICOM has been advised that the CITY does not
customarily seek cash reimbursement for franchise establishment. In addition, due to
circumstances beyond the control of the parties, the CITY incurred significant additional
administrative charges in connection with the review and verification of as -built maps and the
parties have agreed that the administrative reimbursement will be increased to a total of $3,596.
Accordingly, METRICOM agrees that the CITY shall be entitled to the use of METRICOM's wireless
modems and Basic Service Ricochet subscriptions, at no charge to the CITY, until the aggregate
amount of the charges so waived by METRICOM equals or exceeds $3,596. For the purposes of the
foregoing calculation, the CITY shall be charged for the use of such modems and subscriptions at
METRICOM's best municipal rate prevailing in the State of Washington. CITY agrees to promptly
return the modem(s) to METRICOM, at the CITY's expense, upon the earlier of (a) the expiration or
earlier termination of this Ordinance, or (b) the date that the charges accrued for the CITY's use of
modems and subscriptions which are waived by METRICOM as described above equals or exceeds
$3,596. CITY's use of the modems and subscriptions shall be subject to the standard terms and
conditions packaged with the modems. The modems shall be delivered to the CITY within thirty
(30) days of the date that METRICOM's Ricochet wireless service becomes commercially available
in the CITY.
Section 11. Right -of -way Use Fee. As compensation for the use of CITY rights -of -way
specified in Exhibit A, METRICOM shall pay to the CITY, on a semi annual basis, an amount equal to
five (5) percent of METRICOM's Gross Revenues which amount shall be collected from subscribers of
the Services and remitted to CITY as provided herein. For purposes of this Franchise Ordinance,
"Gross Revenues" shall mean the gross dollar amount accrued on METRICOM's books for all leases
and service charges (including service activation charges) collected from its customers with billing
addresses within the CITY; excluding: (i) the right -of -way use fee required by this Section, (ii) local,
state or federal taxes collected by METRICOM that have been billed to customers and stated
separately on such bill, and (iii) revenues which are uncollectable from customers (i.e. bad debts) with
billing addresses in the CITY and that were previously included in Gross Revenues. The
compensation required by this section shall be due on or before the 45th day following the end of each
six month period in which payment is due. Within 45 days after the termination of this Franchise,
compensation shall be paid for the period since the last payment period, prorated on a daily basis.
METRICOM shall furnish to the CITY with each payment of compensation required by this section, 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 compensation due, the CITY shall be paid by
METRICOM 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 Franchise 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 from collecting any balance due to the CITY.
Section 12. Services and Hardware in lieu of Fees. Any portion of the right -of -way use fees
or franchise administration fees described in this Sections 9 and 11 above, may be collected by the
CITY, at its sole discretion, in the form of wireless data transmission services and hardware needed
to receive such services. Such services shall be provided by METRICOM, at the best municipal rate
currently available in the State of Washington at the time that such services are requested. The
CITY shall be responsible for notifying METRICOM prior to the end of any franchise payment
period of its desire to receive services or hardware in lieu of monetary compensation. An initial
activation of a service account pursuant to this Section 12, or the reactivation of an account after the
CITY had previously reduced its desired number of subscriptions and subsequently increases the
desired number of subscriptions, may be subject to activation charges. However, the continuation
of an account on a semi annual basis as the CITY applies franchise fees to the cost of the service
METRICOM.DOC 5/29/97 4
accounts shall not be subject to activation fees. CITY's use of the modems and subscriptions shall be
subject to the standard terms and conditions set forth in the terms and conditions packaged with the
modems. CITY shall be required to return to Metricom any equipment provided to CITY upon
termination of any subscriptions in good condition, ordinary wear and tear excepted.
Section 13. Record keeping and Access. METRICOM shall keep accurate accounting books
and financial records at its principal office or such other location of its choosing, for the purpose of
determining the amounts due to the CITY under this Ordinance. The CITY may inspect
METRICOM's financial records at any time during regular business hours upon three (3) business
days prior written notice and may audit the books from time to time at City's sole expense, but in
each case only to the extent necessary to confirm the accuracy of payments or charges due under
Sections 11, 12 and 14 herein. METRICOM shall provide annual reports to the CITY which indicate
the extent of operations and revenues within the CITY. CITY agrees to hold in confidence any non-
public information it learns from METRICOM in accordance with applicable law.
Section 14. Use of CITY -owned Poles and Facilities. At the sole discretion and approval of
the CITY, METRICOM may utilize CITY -owned poles and facilities for installation of radio
transmitter /receivers required to provide services in accordance with this Ordinance. As
compensation for use of such poles METRICOM shall pay to the CITY an annual fee in the amount
of Sixty Dollars ($60.00) for the use of each CITY -owned pole or other CITY -owned property upon
which METRICOM radio transmitter /receivers have been installed (the "Annual Fee Such
payment shall be due by February 15th for Annual Fees owed for the prior calendar year. In the
case of installations made during any year, METRICOM shall compensate the CITY for the pro-
rated amount of any partial year based on the number of months remaining in such year. The
determination as to whether or not compensation will be due for the month in which a radio
transmitter /receiver is installed, shall be based upon the preponderance of days remaining in the
month of such installation. The annual compensation for each radio transmitter /receiver unit shall
be increased effective January of the first year of each period that this Franchise Ordinance is
renewed, based upon the percentage change in the U.S. Department of Labor, Bureau of Labor
Statistics, Consumer Price Index of all items, Base 1982 -1984, for the San Francisco Oakland San
Jose Metropolitan Statistical Area for the previous franchise period. The annual rate established in
this Section shall not apply to the installation of wired access points or other structures and facilities
related to METRICOM's operations.
Notwithstanding the foregoing, in lieu of the Annual Fee, CITY shall be entitled to receive up
to twenty (20) Basic Service subscriptions to use METRICOM's Ricochet Services and the use of up
to twenty (20) METRICOM modems, for so long as METRICOM maintains radio
transmitter /receivers in use on the appropriate number of CITY -owned poles or other CITY -owned
property pursuant to this Ordinance. Such option may be exercised by CITY in increments of two
(2) subscriptions and two (2) modems in lieu of Annual Fees for five (5) radio transmitter /receivers.
METRICOM shall provide such subscriptions and equipment at such time as METRICOM is
providing commercial service in the CITY, provided that prior to such service date CITY shall not
be entitled to receive the Annual Fee or other compensation in lieu thereof. The number of radio
transmitter /receivers installed on CITY -owned poles or other CITY -owned property in excess of the
number of subscriptions /modems the CITY elects to receive shall be subject to the Annual Fee.
CITY's use of the modems and subscriptions shall be subject to the standard terms and conditions
set forth in the terms and conditions packaged with the modems. CITY shall be required to return to
Metricom any equipment provided to CITY upon termination of any subscriptions in good
condition, ordinary wear and tear excepted. CITY shall use all subscriptions and equipment
provided pursuant to this Section 14 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.
Section 15. Notices. Any notices to be served upon the CITY or METRICOM shall be
delivered to the following addresses respectively:
City of Tukwila
Office of the City Clerk
6200 Southcenter Boulevard
Tukwila, WA 98188
Metricom, Inc.
980 University Avenue
Los Gatos, CA 95030
Attn: Property Manager
METRICOM.DOC 5/29/97 5
Section 16. Indemnification. METRICOM, its successors and assigns, agrees and covenants
to indemnify and hold harmless the CITY of Tukwila from and against any and all liability, loss
cost, damages, whether to persons or property, or expense of any type or nature, including
reasonable attorney's fees and expert witness fees, to the extent it arises from any negligent act or
omission or willful misconduct of METRICOM, its successors and assigns arising from or connected
to METRICOM's work under this franchise, provided however, that in case any suit or action is
instituted against the CITY by reason of any such damage or injury, CITY shall: (i) cause written
notice thereof to be given unto METRICOM; and, (ii) provide all reasonably requested assistance in
defense or settlement of such claim at METRICOM's expense; and, (iii) retain the right to control the
defense or settlement or such claims. This Section shall not be construed to require METRICOM to
indemnify and hold harmless the CITY to the extent such claim arises out of the negligence or
willful misconduct of the CITY. To the extent of any concurrent negligence between METRICOM
and the CITY, METRICOM's obligations under this paragraph shall only extend to its share of
negligence or fault.
Section 17. Severability. If any material Section, sentence, clause or phrase of this Franchise
Ordinance should be held to be invalid or unconstitutional by a court of competent jurisdiction,
either party may, at its option, deem the entire Franchise Ordinance to be affected and thereby
nullified. However, in the event of such a determination of invalidity as to any part of this
Franchise Ordinance, either party may elect to treat the portion declared invalid or unconstitutional
as severable and enforce the remaining provisions contained herein. In the event that one party
determines the entire Franchise Ordinance to be nullified, as just provided, the other party will be
afforded 180 days in which to re- negotiate a new Franchise Ordinance; provided that the continued
operations during the negotiation period will not cause continued sufferage and damages to the
other party.
Section 18. Integration. This Ordinance contains the entire understanding between the
parties with respect to the subject matter hereof and supersedes all prior understandings, whether
written or oral. There are no representations, agreements or understandings, whether oral or
written, between or among the parties relating to the subject matter of this Agreement which are not
fully expressed herein.
Section 19. Effective Date. This Ordinance shall take effect and be in full force and effect
five (5) days after publication of the attached summary which is hereby approved.
PASSED BY THE CITY COUNCIL OF THE CJ Y OF TUKWILA, WASHINGTON, at a
Regular Meeting thereof this
2 day of LL4.L_,� i ,1997.
0
ATTEST /AUTHENTICATED:
By
F
e E. Cantu, City Clerk
APPROVED AS TO FORM:
OFFICE OF THE CITY ATTORNEY:
METRICOM.DOC 5/29/97
FILED WITH THE CIT CLERK: 5/a 7 /9 7
PASSED BY THE CI COUNCIL: lrVcc/9 7
PUBLISHED: 6
EFFECTIVE DA E: !v 7/ /7' 7
ORDINANCE NO.: ,cUv
/97
6
I Lan 1 St name
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1 LG-84000F7B 5142ND ST
LG-8400216F E MARGINAL WAY S.
LG 840013E3 42ND AVE S
LG- 84001715 11244 PACIFIC HWY S
LG- 84000F5F E MARGINAL WAY S
LG- 1000B1 C 44TH PL S
LG- 84001244 MARGINAL WAY S
LG- 8400105D 42ND
LG- 84000FAC 8 148TH ST
LG•84003266 S 135TH ST
LG-84000F2C S. RYAN WAY
LG-8400191D S 154TH
LG- 84000A1 D 47TH AVE S
LG- 8400193A EAST MARGINAL WAY
LG- 84000F02 9200 BLOCK
LG-240009D4 8600 BLOCK
I LG840023EA 18200 WEST VALLEY HWY
LG-84002750 17083 53RD AVE S
LG -84001 881 6380S 151ST PL
LG-84002753 1 16401 WEST VALLEY HWY
I LG-8400274E 1 15304 57TH AVE S
I LG-&4002754 1 14424 56TH AVE S
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EXHIBIT A
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I S 144TH ST I1I
I PACIFIC HWY S 1111 350
1 S. BOEING ACCESS RDINI
1 S 116TH ST 111 4204/72
120TH
S 122ND ST
S126THST
5 135TH 5T
48TH AVE S
32ND AVE S
5. 107TH ST
40TH AVE S
WA S 158TH
WA S NTH
WA E MARGINAL WAY
WA E MARGINAL WAYS 1 I
WA 180TH STS 1 I I
WA 1 170TH ST 11
WA 1 63RD PL S I I I
WA 1 STRANDER BLVD 1111
WA IS152PL III
WA I S 144TH ST I I
!II Pds_n
1 MaPlei I Inst_date
14405 432 19960703
431 19960703
374 19960711
315NE 19960723
111 76 314NE 19960723
III 12102!1 B 2153W 19960731
11 203 315SE 19960729
12406127 315SW 19960729
143 324NE 19960731
4601/102 333NE 19960731
166 324NW 19960724
375 19960711
4001 R15_CR 19961002
167/15801 R15_CR 19961002
IN 15 R13_oc 19961004 I
118 R12_CR 19961008 I
127 R12_CR 19961008
316326- 165075 2316142 19961112
316713 164535 2344103 19961107 I
317221 164996 234092 19961112
316960- 165130 2316098 19961112
317325 164675 234e091 19961107
31761 &164640 2346090 19961112 1
KNOW ALL MEN BY THESE PRESENTS:
Exhibit B
SURETY BOND
The condition of the foregoing obligation is such that:
Bond Number:
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
l; 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 present.
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 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, 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.
PROVIDED, HOWEVER, this bond 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.
METRICOM.DOC 5/29/97 7
Exhibit B
Page 2
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.
By:
By:
SIGNED AND SEALED this
PRINCIPAL SURETY
(Type Company Name)
By:
Title: Title:
day of ,19
Address:
Telephone:
(Affix Corporate Seals)
(Attach Acknowledgments of both Principal and Surety signatures)
METRICOM.DOC 5/29/97 8
[date]
[addressee]
Re: Ordinance Adopted
Dear
Sincerely,
Signature
Printed Name Title
Exhibit C
Franchise Acceptance Form
[Metricom Letterhead]
In accordance with and as required by Section 8 of City of Tukwila Ordinance passed by the
City Council and approved by the Mayor on (the "Ordinance Metricom,
Inc. hereby accepts the terms, conditions and obligations to be complied with or performed by it
under the Ordinance.
METRICOM.DOC 5/29/97 9
P Metricom®
September 22, 1998
Jane Cantu, City Clerk
City of Tukwila
6200 Southcenter Boulevard
Tukwila, WA 98188
Dear Ms. Cantu:
RECEIVED
SEP 2 3 1998
CITY L.W FUKWILA
(Ai YULERK
980 University Avenue
Los Gatos, CA 95032
Re: Ordinance No. 1800 Granting a Non Exclusive Franchise to Metricom, Inc. for the Purposes
of Operating of a Wireless Digital Communications Radio Network in Certain Public Rights -Of
Way in the City. "the Ordinance
This letter will serve as notice to the City of Tukwila that as of October 1, 1998 Metricom Inc. will no
longer collect and pay franchise fees to the City.
The Washington State Department of Revenue has ruled that Metricom is a "network telephone service"
(see attached letter dated 9/8/98 from Jon M. Schorr regarding the Department of Revenue Ruling.)
Under Washington State Law (RCW 82.04.065) "network telephone service" constitutes a "telephone
business RCW 35.21.860 prohibits a city or town from imposing a franchise fee upon a telephone
business, as defined in RCW 82.04.065.
Washington State law does allow a municipality to impose a tax of up to six percent (6 on a telephone
business. Metricom will begin to collect and pay a tax as provided in RCW 35.21.865 upon notification
from the City that such a tax has been adopted.
While the 5% franchise fee in Section 11 of the Ordinance is invalid and unenforceable under RCW
35.21.860, the remaining portions of the Ordinance are not affected and remain in force. There is no need
to amend the Ordinance.
Bill Stephens, Metricom Regional Government Relations and Property Acquisition Manager, discussed
this matter with Doug Micheau in early September. Before he left his position with the City, Doug
notified Laurie Anderson in the Finance Department that Metricom would no longer be paying a franchise
fee. If you have any further questions regarding this notice, please contact me at (408) 399 8628).
Sincerely,
Linda Wallace
Network Real Estate
Enclosure
Cc: Laurie Anderson, Finance Department
Received; 9/ 8/98 4:21PM;
02/08,98 TUE 15:57 FAX 206 628 6611
Williarns,Kastner&Gibbs PLLC
VIA FAX [-408 -354 -9537
Mr. Ronald L. Kramer,
Right -of -Way Attorney
Ms. Norine Luker,
Network Real Estate Manager
Metricom, Inc.
980 University Avenue
Los Gatos, CA 95030
S2.589O19.1
Ion M. Scboa
Attorney at Law
go16'28 -2414
September 8, 1998
Re: Department of Revenue Rulina
Dear Ron and Norine:
206 628 6611 METRICOM; Page 2
LW Film
Pro Union Square
601 Union Stoat, Suite 4100
Seattle, Washington 96101.2380
P.O. Box 21926
Seattle, Washing/xi 98111-3926
Telephone (206) 628-6600
FAX (206) 628 -6611
Seattle
Tacoma
88485.100
The purpose of this letter is to confirm the Washington
State Department of Revenue (the "Department ruling that
Metricom, Inc. is a "network telephone service." The definition
of "network telephone service" was clarified by the 1997
Legislature. Ch. 304, Sec. 1, 1997 legislative session.
Metricom's activities of providing transmissions services fall
under the category of "network telephone service." As stated in
its letter dated February 27, 1998, the Department found that:
"Metricom's income from providing transmission services
to customers constitutes 'network telephone service'_."
"The services provided by Metricom do not constitute
Internet services as defined in RCW 82.04.297..."
Under Washington State Law (RCW 82.04.065) "network
telephone service" constitutes a "telephone business
RCW 35.21.860 prohibits a city or town from imposing a franchise
fee upon a telephone business, as defined in RCW 82.04.065,
except that a tax authorized by RCW 35.21.865 may be imposed.
Accordingly, it is our opinion that Metricom may terminate
payment of franchise fees to Washington State cities because the
cities are without authority to impose franchise fees. However,
Metricom may collect and pay a tax, as authorized by RCW
35.21.870, to those cities with such tax in place.
002
Received; Of 8/98 4_21PM; 208 628 6611 -y METRICOM; Page 3
09/08/911' TUE 15:58 FAX 206 628 6611
Mr. Ronald L. Rramer,
Ms. Norine Luker,
Metricom, Inc.
September 8, 1998
Page 2
If you have any questions regarding the Department of
Revenue ruling, please contact me.
JMS:svb
cc: Judith A. Endejan, Bag-
52-589019.1
Sincerely,
WILLIAMS EASTNER GIBBS PLLC
S orr
f003
CITY OF TUKWILA
SUMMARY OF ORDINANCE NO. Meti
AN ORDINANCE OF THE CITY OF TUKWILA,
WASHINGTON, GRANTING A NON EXCLUSIVE FRANCHISE
TO METRICOM, INCORPORATED, FOR THE PURPOSES OF
INSTALLING, OPERATING, AND MAINTAINING A
WIRELESS DIGITAL COMMUNICATIONS RADIO NETWORK
IN CERTAIN PUBLIC RIGHTS -OF -WAY IN THE CITY.
On 2, 1 `l y 7 the City Council of the City of Tukwila passed Ordinance
No. /(l granting a non exclusive franchise to Metricom Inc. to use certain portions of
the City's public rights -of -way for the installation, operation, and maintenance of Metricom's
wireless radio network system; providing for severability and establishing an effective date.
The full text of this ordinance will be mailed without charge to anyone who submits a
written request to the City Clerk of the City of Tukwila for copy of the text.
APPROVED by the City Council at its meeting of Y__-.ti 2 Y7
Published Seattle Times: (e/&/ 7 s
E. Cantu, City Clerk