|
Printer
Friendly
City of Mercer Island, WA Ordinance No. 95-117
Not an official copy.
City of Mercer Island, WA
Ordinance No. 95-117
AN ORDINANCE OF THE CITY OF MERCER ISLAND, WASHINGTON GRANTING A FRANCHISE
TO METRICOM, INC. FOR THE CONSTRUCTION AND OPERATION OF A COMMUNICATION SYSTEM
The City of Mercer Island, State of Washington (hereinafter referred to as
the "City"), having determined that the financial, legal, and technical
ability of Metricom, Inc. (hereafter sometimes referred to as “Metricom”)
is reasonably sufficient to provide services, facilities, and equipment necessary
for a state of the art wireless and wired telecommunication system, does hereby
ordain as follows:
DEFINITION OF TERMS
1. TERMS. For the purpose of this Franchise, the following terms, phrases,
words, and abbreviations shall have the meanings ascribed to them below. When
not inconsistent with the context, words used in the present tense include the
future tense, words in the plural number include the singular number, and words
in the singular number include the plural number:
- "Affiliate" means an entity which owns or controls, is owned or
controlled by, or is under common ownership with Grantee.
- "Cable Act" means the Federal Cable Communications Policy Act
of 1984, as amended.
- "Communication Service" shall mean any communication services
provided by Metricom over its "Communication System" (as hereinafter
defined) either directly or as a carrier for its subsidiaries, affiliates
or any other person engaged in Communication Services, including, but not
limited to, transmission of voice, data or other electronic intelligence,
facsimile reproduction, burglar alarm, meter reading and home shopping. However,
Communication Service shall not include cable television services as defined
under the Cable Act for which a separate franchise would be required to provide
such cable television services, nor shall it include video dialtone service
as defined by the FCC in which a separate franchise would also be required
to provide such video dialtone services
- "Communication System" shall mean Metricom’s system of poletop
radio receivers/transmitters, modems, antennas, and any associated converters,
equipment or facilities designed and constructed for the purpose of producing,
receiving, amplifying or distributing by audio, video or other forms of electronic
or electric signals to or from subscribers or locations within the City
- "FCC" means Federal Communications Commission, or successor governmental
entity thereto.
- "Franchise" shall mean the initial authorization, or renewal thereof,
issued by the City, whether such authorization is designated as a franchise,
permit, license, resolution, contract, certificate, or otherwise, which authorizes
construction and operation of the Communication System for the purpose of
offering Communication Services to Subscribers
- "Franchise Authority" means the City or the lawful successor,
transferee, or assignee thereof.
- "Grantee" means Metricom, Inc., a Delaware corporation, or the
lawful successor, transferee, or assignee thereof, with the consent as required
in this agreement.
- "Gross Revenue" shall mean all receipts collected by Grantee for
all communications and communication-related operations and services within
the corporate limits of the City as well as any other revenue arising from
operation or possession of this Franchise, less the administrative fee mandated
by Section 4.1.1 of this Franchise and the franchise fee mandated by Section
4.1.2 of this Franchise. By way of example, but without limitation, "Gross
Revenue" includes all revenues from the sale or lease of customer premise
equipment, installation charges, access charges paid to Grantee by other carriers,
charges to customers, subscribers and other users of the Communication System,
and the lease or re-sale of lines or circuit paths to third parties. "Gross
Revenue" does not include (a) taxes, fees, or assessments of any kind
or description imposed on or levied against Grantee which are not applicable
to all other persons or entities doing business within the City, (b) revenues
uncollectible from customers (bad debts), and (c) discounts
- "Person" means an individual, partnership, association, joint
stock company, trust corporation, or governmental entity.
- "Public Way" shall mean the surface of, and the space above and
below, any public street, highway, freeway, bridge, land path, alley, court,
boulevard, sidewalk, parkway, lane, public way, drive, circle, or other public
right- of-way, including, but not limited to, public utility easements, dedicated
utility strips, or rights-of-way dedicated for compatible uses and any temporary
or permanent fixtures or improvements located thereon now or hereafter held
by the Franchise Authority in the Service Area which shall entitle the Franchise
Authority and Grantee to the use thereof for the purpose of installing, operating,
repairing, and maintaining the Communication System. Public Way shall also
mean any easement now or hereafter held by the Franchise Authority within
the Service Area for the purpose of public travel, or for utility or public
service use dedicated for compatible uses, and shall include other easements
or rights-of way as shall within their proper use and meaning entitle the
Franchise Authority and Grantee to the use thereof for the purposes of installing
or transmitting Grantee's Communication Services over poles, wires, cables,
conductors, amplifiers, appliances, attachments, and other property as may
be ordinarily necessary and pertinent to the Communication System.
- "Service Area" means the present municipal boundaries of the Franchise
Authority, and shall include any additions thereto by annexation or other
legal means.
- "Subscriber" or "Customer" means a person or user of
the Communication System who lawfully receives Communication Services or other
service therefrom with Grantee's express permission.
GRANT OF FRANCHISE
- GRANT. The City hereby grants to Grantee a nonexclusive Franchise which
authorizes Grantee to construct and operate its Communication System and offer
Communication Services in, along, among, upon, across, above, over or in any
manner connected with Public Ways within the Service Area and for that purpose
to erect, install, construct, repair, replace, reconstruct, maintain, or retain
in, on, over, upon, across, or along any Public Way and all extensions thereof
and additions thereto, such poles, wires, cables, conductors, amplifiers,
appliances, attachments and other related property or equipment as may be
necessary or appurtenant to the Communication System. This Franchise does
not provide Grantee exclusive use of any City poles or property; provided,
however that City agrees to obtain in writing from any future telecommunication
provider covenants that subsequent to the installation by Grantee of its Communication
System in accordance with the terms and conditions of this Franchise, (a)
such new provider shall not install new equipment if such equipment causes
interference with Grantee’s operations and (b) that in the event such
interference occurs, such provider shall immediately take all steps necessary
to eliminate such interference.
- LIMITED GRANT. This grant of authority to provide the services described
herein shall be limited solely to those services expressly described and no
others. In the event of any ambiguity, this agreement shall be strictly construed
as to the rights granted herein.
- DUTY TO NOTIFY OF CHANGE. Grantee represents that the Communication System
will be utilized exclusively for the rendering of Communication Services.
If the nature or character of Communication Services changes in any manner
in the future to include the offering of telecommunication or other services
not expressly permitted under this Franchise or if there is an increase in
the size or number of any poletop radio transmitter/receiver (or like above-ground
apparatus) than was contemplated in the adoption of this Franchise, then Grantee
shall notify the City in writing as soon as practicable. Such notice shall
be served at least sixty (60) days prior to the effective date of any change
in the nature or character of the Communication Services or in the poletop
radios (or like above-ground apparatus).
- COMPLIANCE WITH CITY REQUIREMENTS. Except as expressly provided otherwise
herein, Grantee shall comply with all applicable City ordinances, resolutions,
standards and procedures, as now or hereafter adopted, to the same extent
as any other person or entity doing business within the City
- TERM. The Franchise granted pursuant to this Franchise shall be for an initial
term of five (5) years from the effective date of the Franchise as set forth
in Section 2.3, unless otherwise lawfully terminated in accordance with the
terms of this Franchise. This Franchise shall automatically be renewed for
one (1) successive (5) five-year term by Grantee on the same terms and conditions
as set forth herein, except as explained in the next sentence, unless Grantee
notifies City of its intention not to renew at least one hundred and twenty
(120) days prior to commencement of the succeeding renewal term. Notwithstanding
the foregoing, City shall have the prerogative of adjusting the franchise
fee mandated by Section 4.1.2 hereof for such renewal term until the date
which is sixty (60) days prior to the commencement of the renewal period.
Grantee in turn shall have the prerogative of canceling its renewal until
the date which is thirty (30) days prior to the commencement of the renewal
period if it finds any such adjustment to the franchise fee to be unacceptable.
- ACCEPTANCE; EFFECTIVE DATE. Grantee shall accept the Franchise granted pursuant
hereto by signing this Franchise and the Statement of Acceptance shown in
Exhibit “A”, and filing same with the City Clerk or other appropriate
official or agency of the Franchise Authority within thirty (30) days after
the passage and final adoption of this Franchise. If not accepted within thirty
(30) days, this agreement shall be null and void and of no effect and no franchise
shall exist between Grantee and the City. Subject to the acceptance by Grantee,
the effective date of this Franchise shall be November 13, 1995.
REGULATION OF THE USE OF PUBLIC WAYS
.1 CONDITIONS OF STREET OCCUPANCY. All transmission and distribution structures,
poles, other lines, and equipment installed or erected by Grantee pursuant to
the terms hereof shall be located so as to cause a minimum of interference with
the proper use of Public Ways and with the rights and reasonable convenience
of property owners who own property that adjoins any of said Public Ways.
.1.1 APPROVAL OF PLANS AND SPECIFICATIONS. Grantee shall provide complete
plans and specifications for all construction within streets to the designated
City official for their review at least thirty (30) days prior to the start
of any construction during the term of this Franchise. In the event of rejection,
Grantee shall submit revised plans and specifications for approval. This provision
shall apply to each construction sequence if the construction is accomplished
in phases. All such construction shall comply with all applicable ordinance(s),
including ordinances which may be adopted after the date of this Franchise,
all applicable ordinances shall include, but are not limited to, building and
fire codes and zoning regulations. Such construction and this Franchise shall
be expressly subject to all deeds, easements, dedications, conditions, covenants,
restrictions and encumbrances which may affect the Public Ways.
.1.2 MAPS. Upon written request of the City, Grantee shall provide the City
with a map (of general specificity) showing the approximate location of major
components of Grantee's Communication System within the City. Upon written request
of the City, Grantee shall update such map to reflect actual or anticipated
improvements to the system. Any such map (or update thereof) so submitted shall
be for informational purposes only and shall not obligate Grantee to undertake
any specific improvements, nor shall such map be construed as a proposal to
undertake any specific improvements. Grantee shall submit such map (and updates
thereof) to the City in "GIS" format, unless such map (or updates
thereof) cannot readily and inexpensively be made available to the City in such
format.
.2 RESTORATION OF PUBLIC WAYS. If during the course of Grantee's construction,
operation, or maintenance of the Communication System there occurs a disturbance
of any Public Way by Grantee, it shall, at its expense, replace and restore
such Public Way to a condition reasonably comparable to the condition of the
Public Way existing immediately prior to such disturbance.
.3 RELOCATION AT REQUEST OF FRANCHISE AUTHORITY. Upon its receipt of reasonable
advance notice, not to be less than five (5) business days, Grantee shall, at
its own expense, protect, support, temporarily disconnect, relocate in the Public
Way, or remove from the Public Way, any property of Grantee when lawfully required
by Franchise Authority by reason of traffic conditions, public safety, street
abandonment, freeway and street construction, change or establishment of street
grade, installation of sewers, drains, gas or water pipes, or any other type
of structures or improvements by the Franchise Authority; but, Grantee shall
in all cases have the right of abandonment of its property.
.4 VEGETATION MANAGEMENT. Grantee and the City agree that Grantee shall do
no tree trimming except with City’s prior written consent, which consent
shall not be unreasonably withheld.
.5 SAFETY REQUIREMENTS. Construction, installation, and maintenance of the
Communication System shall be performed in an orderly and workmanlike manner.
All such work shall be performed in substantial accordance with applicable FCC
or other federal, state, and local regulations. The Communication System shall
not unreasonably endanger or interfere with the safety of persons or property
in the Service Area.
.6 USE, RENTAL OR LEASE OF UTILITY POLES AND FACILITIES. There is hereby granted
to Grantee the authority to contract with the City or any appropriate board
or agency thereof or with the holder or owner of any utility franchise in the
City for the use, rental or lease of its or their poles and other structures
and facilities for the purpose of extending, carrying or laying Grantee's wires,
cables, electronic conductors and other facilities and appurtenances necessary
or desirable in conjunction with the operation of its Communication System.
The City agrees that any public utility owning or controlling such poles or
other structures or facilities may, without amendment to its franchise, allow,
and is encouraged to allow, Grantee to make such use thereof pursuant to any
agreement reached between such utility company and Grantee.
COMPENSATION TO CITY
.1 PAYMENT TO CITY.
.1.1 Administrative Fee. An administrative fee is assessed Grantee as consideration
for the administrative processing cost incurred in the initial adoption of this
Franchise, and for the continued monitoring and enforcement of same. Grantee
agrees to pay the City as such administrative fee the sum of Two Thousand Dollars
($2,000) upon acceptance of the Ordinance. Nothing herein shall preclude the
City from recovering any administrative costs incurred by the City at its standard
rates in the approval of permits or in the supervision, inspection or examination
of all work by Grantee in the Franchise Area as prescribed in accordance with
applicable ordinances or laws. City shall notify Grantee in writing of the estimated
administrative cost for any such approval, supervision, inspection or examination
of any work do be done by Grantee as soon as reasonably practical prior to incurring
such cost and afford Grantee an opportunity to propose alternative mechanisms
intended to reduce the cost thereof.
.1.2 STREET RENTAL COMPENSATION, FRANCHISE FEE AND LATE PAYMENT CHARGE.
- The City finds that the public streets, alleys and rights-of- way to be
used by Grantee in the operation of its Communication System within the boundaries
of the City are valuable public properties, acquired and maintained by the
City at great expense to its taxpayers, and that the grant to Grantee of the
use of said public streets, alleys and rights-of-way is a valuable Property
right, without which Grantee would be required to invest substantial capital
in right-of-way costs and acquisitions, therefore, Grantee agrees to pay to
the City as general compensation for the use of the Public Way during each
year of the initial term of this Franchise ordinance, a Franchise Fee as determined
by City Council, not to exceed five percent (5%) of Gross Revenues, as defined
in Section 1.1 herein, for each quarter of each calendar year. Grantee agrees
to pay the franchise fee mandated by this Section 4.1.2 but City acknowledges
and understands that such amount (and any other fees, assessments, or taxes
imposed on Grantee not described in Section 4.4 below) shall appear as a line
item on the bill sent to, and shall be collected from, the Subscribers.
- The initial annual Franchise Fee percentage shall be 2% unless and until
it is adjusted by City Council sixty (60) days before any subsequent anniversary
date.
- Grantee shall forward by wire transfer an amount equal to this quarterly
payment by the fifteenth (15th) day of the second calendar month immediately
following the close of the calendar quarter for which the payment is calculated.
Any necessary prorations shall be made in the first and last year of each
term of the Franchise.
- In the event any quarterly payment is made after noon on the date due, Grantee
shall pay a late payment penalty of the greater of: (i) One Hundred Dollars
($100) or (ii) simple interest at a ten percent (10%) annual percentage rate
on the total amount past due.
.2 QUARTERLY REPORT. In order to properly determine the Gross Revenues received
by Grantee, Grantee agrees that on the same date that each quarterly payment is
made, it will file with the Director of Finance a sworn copy of a report, in a
form acceptable to the City, in sufficient detail to itemize revenues from each
of the revenue categories. The City may, if it sees fit and at its own expense,
have the books and records of Grantee examined by a representative of said City
to ascertain the correctness of the reports agreed to be filed herein. Acceptance
of any payment nor any subsequent review shall not be deemed an agreement by the
City that the correct payment was paid, absent a fully authorized release by the
City on any such payments or on such reports.
.3 RECALCULATION AT END OF COMPENSATION YEAR. At the end of each calendar
year, Grantee shall recalculate the total general compensation actually due.
If additional amounts are due the City by Grantee, said amounts shall be paid
by the fifteenth (15th) day of February following the calendar year during which
such amounts were originally due. If amounts are found to be due Grantee by
the City, said amounts shall be credited by the fifteenth (15th) day of February
during which such amounts were originally due. Any necessary prorations shall
be made.
.4 TAXES ARE NOT TO BE A CREDIT. The compensation paid under this Franchise
shall be exclusive of and in addition to all special assessments and taxes of
whatever nature which are applicable to all other persons or entities doing
business within the City, including, but not limited to, ad valorem tax, sales
tax, corporate or business occupation taxes or other taxes or fees imposed or
levied by any governmental entity.
.5 RIGHTS OF CITY. Payment of money under this Franchise shall not in any
way limit or inhibit any of the privileges or rights of the City, whether under
this Franchise or otherwise, except insofar as City’s privileges or rights
are expressly limited or inhibited by the terms of this Franchise.
.6 ANNUAL REPORT. Grantee shall file annually with the Director of Finance
no later than ninety (90) days after the end of Grantee's fiscal year, an unaudited
statement of revenues (for that year) attributable to the operations of Grantee's
system, within the City pursuant to this Franchise ordinance. This statement
shall present a detailed breakdown of Gross Revenues and uncollectible accounts
for the year. City may, if it sees fit and at its sole expense, have such report
audited by an independent certified public accountant of its choosing.
.7 CIRCUMVENTING PAYMENTS. Any transaction(s) which have the effect of circumventing
payment of the required franchise fees and/or evasion of payment of franchise
fees or any payments due the City under this Franchise by non-collection or
non- reporting of Gross Revenues, bartering, or any other means which evade
the actual collection of revenues for business pursued by the Grantee are prohibited.
.8 TRANSFER OF FRANCHISE. Grantee's right, title, or interest in the Franchise
shall not be sold, transferred, assigned, or otherwise encumbered without the
prior consent of the Franchise Authority, such consent not to be unreasonably
withheld. No such consent shall be required, however, for a transfer in trust,
by mortgage, by other hypothecation, or by assignment of any rights, title,
or interest of Grantee in the Franchise or Communication System in order to
secure indebtedness. Furthermore, the transfer of the rights and obligations
of Grantee to a parent, subsidiary, or other affiliate of Grantee, or to any
successor-in-interest or entity acquiring fifty-one percent (51%) or more of
Grantee’s stock or assets shall not be deemed an assignment. Grantee shall
give to the City thirty (30) days' prior written notice of any such transfer.
.9 GRANTEE'S MARKETING EFFORTS. The City agrees that Grantee may refer to
the City's possession and use of the RicochetÔ modems and the City's use
of the Communication Services in oral negotiations with other parties, only
if and so long as, and Grantee hereby agrees that, these references by Grantee
are and will be, to the best of Grantee’s knowledge, fully correct and
accurate in all material respects and in no way false or misleading at the time
the reference is made. Notwithstanding the foregoing, Grantee shall obtain the
prior approval of the City for any published, written, printed, broadcast, or
otherwise transmitted sales or marketing materials of Grantee when the materials
reference the City or the City's use of Grantee's Communication Services.
'.10 BEST RATES. As further compensation to the City for the grant of the
Franchise, City shall be entitled to obtain subscriptions to the Communication
Service at Grantee’s lowest rate applicable to any government body or municipality
in the State of Washington. In addition, City shall be entitled to Grantee’s
lowest available rate for purchase and/or lease of modems applicable to government
bodies or municipalities in the State of Washington for purposes of accessing
the Communication Service.
ACCOUNTS, BOOKS AND RECORDS
.1 CITY TO BE INFORMED. Grantee shall keep the City fully informed as to all
matters in connection with or affecting the construction, reconstruction, removal,
maintenance, operation and repair of Grantee's system, Grantee's accounting
methods and procedures in connection therewith, and the recording and reporting
by Grantee of all revenues and uncollectibles. Grantee shall report to the City
such other non-proprietary information relating to Grantee as the City may consider
useful and shall comply with the City's determination of forms for reports,
the time for reports, the frequency with which any reports are to be made, and
if reports are to be made under oath. City acknowledges that Grantee is a reporting
company under the Securities Exchange Act of 1934 and that shares of its stock
are publicly traded. As such, Grantee may be precluded from disclosing certain
sensitive, non-public information by virtue of rules and regulations promulgated
under such act or otherwise.
.2 ACCOUNTS. Grantee shall keep complete and accurate books of account and
records of its business and operations pursuant to this Franchise ordinance
in accordance with generally accepted accounting principles, subject to review
and approval by the City. If required by the City or the FCC, Grantee shall
use the system of accounts and the forms of books, accounts, records, and memoranda
prescribed by the FCC in 47 CFR Part 32 or its successor and as may be further
described herein. The City may require the keeping of additional records or
accounts which are reasonably necessary for purposes of identifying, accounting
for, and reporting gross revenues and uncollectibles for purposes of Section
4 hereof. Grantee shall keep its books of account and records in such a way
that breakdowns of revenues are available by type of service within the City.
.3 ACCESS TO RECORDS. Subject to the caveat set forth in Section 5.1 above,
Grantee shall provide the City with access at reasonable times and for reasonable
purposes, to examine, audit, review and/or obtain copies of the papers, books,
accounts, documents, maps, plans and other records of Grantee pertaining to
this Franchise ordinance. Grantee shall fully cooperate in making available
its records and otherwise assisting in these activities.
.4 INQUIRIES TO GRANTEE. The City may, at any time, make inquiries pertaining
to Grantee's operation of its System within City. Grantee shall respond to such
inquiries on a timely basis.
.5 FCC AND OTHER FILINGS. Subject to the caveat set forth in Section 5.1 above,
Grantee shall provide the City with notices of all petitions, applications,
communications and reports submitted by Grantee to the FCC, Securities and Exchange
Commission and the Tennessee Public Service Commission or their successor agencies,
relating to any matters affecting the use of public streets, alleys and public
rights of way and/or the telecommunications operations authorized pursuant to
this Franchise ordinance. Upon written request from the City, Grantee shall
provide the City with copies of all such documentation.
INSURANCE, INDEMNIFICATION, AND BONDS OR OTHER SURETY
.1 INSURANCE REQUIREMENTS. Grantee shall maintain in full force and effect,
at its own cost and expense, during the term of the Franchise, Comprehensive
General Liability Insurance in the amount of One Million Dollars ($1,000,000)
combined single limit for bodily injury, and property damage. Said insurance
shall designate the Franchise Authority as an additional insured. Such insurance
shall be noncancellable except upon thirty (30) days prior written notice to
the Franchise Authority.
.2 INDEMNIFICATION. Grantee agrees to indemnify, save and hold harmless, and
defend the Franchise Authority, its officers, boards and employees from and
against any liability for damages and for any liability or claims resulting
from property damage or bodily injury (including accidental death), which arise
out of Grantee's construction, operation, or maintenance of its Communication
System, including, but not limited to, reasonable attorney's fees and costs.
Grantee’s obligation to indemnify, save and hold harmless, and defend the
City exclude only such liability or claim which is due to the negligence or
willful misconduct of City and/or its officers, boards, employees, sublicenses,
subcontractors or agents. Grantee further agrees not to oppose intervention
by the City in such a suit, however, any intervention will be at the Franchise
Authority's sole cost and expense.
.3 BONDS AND OTHER SURETY. Except as expressly provided herein, Grantee shall
not be required to obtain or maintain bonds or other surety as a condition of
being awarded the Franchise or continuing its existence. In order to minimize
such costs, the Franchise Authority agrees to require bonds and other surety
only in such amounts and during such times as there is a reasonably demonstrated
need therefor. The Franchise Authority agrees that in no event, however, shall
it require a bond or other related surety in an aggregate amount greater than
Ten Thousand Dollars ($10,000), conditioned upon the substantial performance
of the material terms, covenants, and conditions of the Franchise. Initially,
no bond or other surety will be required. In the event that one is required
in the future, the Franchise Authority agrees to give Grantee at least thirty
(30) days prior written notice thereof stating the exact reason for the requirement.
Such reason must demonstrate a change in Grantee's legal, financial, or technical
qualifications which would materially prohibit or impair its ability to comply
with the terms of the Franchise or afford compliance therewith.
ENFORCEMENT AND TERMINATION OF FRANCHISE
.1 NOTICE OF VIOLATION. In the event that the Franchise Authority believes
that Grantee has not complied with the terms of the Franchise, it shall notify
Grantee in writing of the exact nature of the alleged noncompliance.
.2 GRANTEE'S RIGHT TO CURE OR RESPOND. Grantee shall have thirty (30) days
from receipt of the notice described in 7.1: (1) to respond to the Franchise
Authority contesting the assertion of noncompliance, (2) to cure such default,
or (3) in the event that, by the nature of default, such default cannot be cured
within the thirty (30) day period, initiate reasonable steps to remedy such
default and notify the Franchise Authority of the steps being taken and the
projected date that they will be completed.
.3 PUBLIC HEARING. In the event that Grantee fails to respond to the notice
described in Section 7.1 pursuant to the procedures set forth in Section 7.2,
or in the event that the alleged default is not remedied within thirty-one (31)
days after Grantee is notified of the alleged default pursuant to Section 7.1,
the Franchise Authority shall schedule a public meeting to investigate the default.
Such public meeting shall be held at the next regularly scheduled meeting of
the Franchise Authority which is scheduled at a time which is no less that five
(5) business days therefrom. The Franchise Authority shall notify Grantee of
the time and place of such meeting and provide Grantee with an opportunity to
be heard.
.4 ENFORCEMENT. Subject to applicable federal and state law, in the event
the Franchise Authority, after such meeting, determines that Grantee is in default
of any provision of the Franchise, the Franchise Authority may:
a. Foreclose on all or any part of any security provided under this Franchise,
if any, including without limitation, any bonds or other surety; provided, however,
the foreclosure shall only be in such a manner and in such amount as the Franchise
Authority reasonably determines is necessary to remedy the default;
b. Commence an action at law for monetary damages or seek other equitable
relief;
c. In the case of a material breach of the Franchise, declare the Franchise
Agreement to be revoked; or
d. Seek specific performance of any provision, which reasonably leads itself
to such remedy, as an alternative to damages.
Grantee shall not be relieved of any of its obligations to comply promptly
with any provision of the Franchise by reason of any failure of the Franchise
Authority to enforce prompt compliance.
.5 ACTS OF GOD. Grantee shall not be held in default or noncompliance with
the provisions of the Franchise, nor suffer any enforcement or penalty relating
thereto, where such noncompliance or alleged defaults are caused by strikes,
acts of God, power outages, or other events reasonably beyond its ability to
control.
ALTERNATE DISPUTE RESOLUTION
.1 The parties agree that, to the extent permitted by applicable law and subject
to the provisions of this Section 8, any dispute between the parties concerning:
.1.1 the interpretation of, or a determination of the applicability of, the
parties' respective rights and obligations arising under this Franchise, or
.1.2 the due and proper implementation of this Franchise in accordance with
its terms, (any such dispute being hereinafter referred to as an "Interpretative
Question") may be submitted to nonbinding mediation.
.2 During the term of this Franchise, either party may request, in writing,
that the other party meet and confer to resolve an Interpretative Question.
.3 Within a reasonable time after a party's receipt of a written request made
in accordance with Section 8.2 above, the parties shall, at a mutually agreeable
time and place, meet. and confer with respect to an Interpretative Question.
The parties shall undertake such effort in good faith and with due regard to
pertinent facts and circumstances.
.4 If an Interpretative Question cannot be resolved to the parties' mutual
satisfaction within ninety (90) days after the commencement of meetings in accordance
with Section 8.3, then a party may, prior to the expiration of such ninety (90)
day period, notify the other party in writing of its desire to submit the Interpretative
Question to nonbinding mediation. In such event, such mediation shall be undertaken,
at a date or dates reasonably convenient to both parties, at the local offices
of the Judicial Arbitration and Mediation Services, Inc. ("J.A.M.S.")
or, if J.A.M.S. shall cease to exist, at the local office of a substitute mediation
service agreed to by the parties.
.5 Unless the parties otherwise agree in writing, such mediation shall be
undertaken in accordance with the applicable J.A.M.S. rules therefor. If the
parties are unable to agree upon a mediator from the J.A.M.S. (or the substitute
mediation service) panel, then the parties shall request that J.A.M.S. (or the
substitute mediation service) submit to them a list of three available mediators
and each party shall strike one name from the list so submitted. The remaining
individual shall serve as the mediator. Each party shall bear its own costs
in connection with such mediation. The cost of retaining J.A.M.S. (or the substitute
mediation service) shall be born equally by the parties.
.6 The provisions of this Section 8 are in addition to, and not a limitation
of, any and all other rights and remedies available to the parties arising under
this Franchise or applicable law. If the preservation of any such right or remedy
would, through the exercise of reasonable prudence, require the commencement
of any action under Section 7 herein or otherwise allowed by law (e.g., judicial,
administrative or otherwise) prior to the exhaustion of the dispute resolution
procedures provided by this Section 8, the failure to so exhaust such procedures
shall not operate as a bar to the commencement, prosecution or defense of any
such action. A party's exercise of, or a party's failure to exercise, the dispute
resolution procedures provided by this Section 8 shall not relieve or release
either party of or from their respective obligations arising under this Franchise.
MISCELLANEOUS PROVISIONS
.1 ACTIONS OF FRANCHISE AUTHORITY. In any action by the Franchise Authority
or representative thereof mandated or permitted under the terms hereof, such
party shall act in a reasonable, expeditious, and timely manner. Furthermore,
in any instance where approval or consent is required under the terms hereof,
such approval or consent shall not be unreasonably withheld.
.2 Notice. Unless expressly otherwise agreed between the parties, every notice
or response to be served upon the Franchise Authority or Grantee shall be in
writing, and shall be deemed to have been duly given to the required party five
(5) business days after having been posted in a properly sealed and correctly
addressed envelope by certified or registered mail, postage prepaid, at a Post
Office or branch thereof regularly maintained by the U.S. Postal Service.
The notices or responses to the Franchise Authority shall be addressed as
follows:
City Manager
City of Mercer Island
9611 Southeast 36th Street
Mercer Island, WA 98040-3732
With a copy to:
City Attorney
City of Mercer Island
9611 Southeast 36th Street
Mercer Island, WA 98040-3732
The notices or responses to Grantee shall be addressed as follows:
Metricom, Inc.
980 University Avenue
Los Gatos, CA 95030
Attention: Property Manager
Attn:__________________________
Franchise Authority and Grantee may designate such other address or addresses
from time to time by giving notice to the other.
.3 DESCRIPTIVE HEADINGS. The captions to sections contained herein are intended
solely to facilitate the reading thereof. Such captions shall not affect the
meaning or interpretation of the text herein.
.4 SEVERABILITY. If any section, sentence, paragraph, term, or provision hereof
is determined to be illegal, invalid, or unconstitutional, by any court of competent
jurisdiction or by any state or federal regulatory authority having jurisdiction
thereof, such determination shall have no effect on the validity of any other
section, sentence, paragraph, term or provision hereof, all of which will remain
in full force and effect for the term of the Franchise, or any renewal or renewals
thereof.
.5 ACTION BY THE FCC. In the event the FCC promulgates more stringent notice
requirements, technical standards, consumer protection or consumer services
requirements than are contained in this agreement, those more stringent requirements
shall prevail. The Franchise Authority shall give reasonable notice when in
their determination that has occurred. Grantee shall retain and not waive any
or all rights and privileges as afforded either under this contract or pursuant
to Federal Law or FCC regulations to complain and/or appeal such a determination.
PASSED BY THE CITY COUNCIL OF THE CITY OF MERCER ISLAND, WASHINGTON, AT ITS
REGULAR MEETING ON THE ____DAY OF _____________, 1995.
Judy Clibborn, Mayor
ATTEST:
Christine L. Eggers, City Clerk
APPROVED AS TO FORM:
David Kahn
CITY ATTORNEY
Date of Publication:______________
Accepted and agreed to this ______ day of _______________, 1995, subject to
applicable federal, state and local law.
ATTEST: METRICOM, INC.
By:________________________
Kirk Wampler
Director, Right of Way
EXHIBIT “A”
STATEMENT OF ACCEPTANCE
Metricom, Inc, for itself, its successors and assigns, hereby accepts and
agrees to be bound by all terms, conditions and provisions of the franchise
granted pursuant to Ordinance No. ______ , attached hereto and incorporated
herein for all intents and purposes.
BY:_______________________________
Name:_____________________________
Title:______________________________
Date:______________________________
Note to Exhibit “A”
Attach copy of executed Ordinance containing such franchise and a corporate
resolution or corporate secretary certificate therefor duly executed and approving
this Statement of Acceptance, the execution thereof and authorizing the officer
executing this Statement of Acceptance to do so.
|
