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HomeMy WebLinkAbout2097 ORDINANCE NO. 2097 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ARCADIA, CALIFORNIA, GRANTING A NON-EXCLUSIVE FRANCHISE TO METRIC OM INC. TO INSTALL AND OPERATE A WIRELESS COMMUNICATION RADIO NETWORK IN CITY OF ARCADIA RIGHTS-OF - WAY WHEREAS, Arcadia City Charter Sections 1300-1303 authorize the granting and conditioning of franchises; and WHEREAS, Metricom Inc. has requested approval of a franchise as set forth herein and the attached documents incorporated as part of this Ordinance; and WHEREAS, pursuant to City Charter Section 1303 a Resolution ofIntent regarding the granting of a franchise was approved by the City Council on December IS, 1998; and WHEREAS, pursuant to that Resolution No. 6094 (attached) notice of a public hearing was published for conduction of a public hearing on January 5, 1999, which notice was published more than ten (10) days prior to the public hearing; and WHEREAS, such public hearing was held on January 5, 1999 to hear any person having an interest in or objection to granting subject franchise as described herein and in Resolution No. 6094; and WHEREAS, the City Council has determined to grant subject franchise consistent with the terms and conditions referred to herein. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF ARCADIA, CALIFORNIA, DOES HEREBY FIND, DETERMINE AND ORDAIN AS FOLLOWS: I 2097 SECTION I. The Arcadia City Council grants a non-exclusive franchise to Metricom Inc. for the installation and operation of a wireless digital radio system in the City of Arcadia, subject to all of the terms and conditions set forth in the . attached Franchise Agreement incorporated as part of this Ordinance. SECTION 2. The attached Franchise Agreement, ifnot duly executed by Metricom, Inc. as of January 5, 1999, shall be executed within five (5) business days of the date of introduction of this Ordinance. Failure by Metricom, Inc. to execute and deliver the attached Franchise Agreement as required shall constitute a rejection of the approvals contained herein, and the Franchise shall therefore be denied. SECTION 3. The attached Franchise Agreement incorporated and adopted as part of this Ordinance shall constitute the terms and condition of the granting of this Franchise. The Mayor of the City of Arcadia is authorized to sign subject Agreement after execution by Metricom Inc., the adoption of Ordinance No. 2097, and approval of the Agreement as to form by the City Attorney. SECTION 4. That the City Clerk shall certify to the adoption of this Ordinance. 2 2097 Passed, approved and adopted this 19th day of Januarv ,1999. ~4..1W~ Ma ofth ity of Arcadia ATTEST: ~~~~ ity Clerk /./ ) APPROVED AS TO FORM: ffJ~ Q ~ City Attorney 3 2097 STATE OF CALIFORNIA ) COUNTY OF LOS ANGELES ) SS: CITY OF ARCADIA ) I, JUNE D. ALFORD, City Clerk of the City of Arcadia, hereby certify that the foregoing Ordinance No. 2097 was passed and adopted by the City Council of the City of Arcadia, signed by the Mayor and attested to by the City Clerk at a regular meeting of said Council held on the t 9th day of January, 1999 and that said Ordinance was adopted by the following vote, to wit: AYES: Councilmember Chandler, Harbicht, Marshall, Roncelli and Kovacic NOES: None ABSENT: None ,J 4 2097 ~Y[f'lJ" ARCADIA FRANCHISE AGREEMENT THIS FRANCHISE AGREEMENT (the "Franchise") is dated as of January 29 . 1999, and entered into by and between the CITY OF . ARCADIA, a California municipal corporation (the "City"), and METRICOM, INC., a Delaware corporation ("Metricom" or "Grantee"). RECITALS A. Under California law and Arcadia City Charter SS 1300 et seq., the City has the right and power to regulate the time, location, and manner of attachment, installation, operation, and maintenance of wireless digital communications radios in the public right-of-way within the limits of the City. B. Metricom wishes to attach, install, operate, and maintain a wireless digital communications radio network on facilities located in the public right-of~way. for purposes of operating its Ricochet™ wireless digital communications radio network (the "Network"). AGREEMENT Now, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree to the following covenants, terms, and conditions: 1 DEFINITIONS. The following definitions shall apply generally to the provisions of this agreement: 1.1 Agency. "Agency" means any govel'I1ffiental or quasi-goverrunental agency other than the City, including the FCC and the PUC (as such terms are defined below). 1.2 City. "City" means the City of Arcadia. 1.3 City Property. "City Property" means City-owned poles or other City-owned property, whether located within or outside of the Public Right of Way, including (without limitation) City-owned street light poles, traffic safety lights, illuminated street sign poles, and light poles in City ballparks and other f ! l J I f T~~communiCQtio"s Fralldlj~ A~ment City of Arcadia :: Metricom, Inc. pagtl.fl8 .rcuduu.doc [07&wc23apa98} 11129/1998 2097 public parks. As used herein, the term City Property shan also include buildings and edifices owned by the City, but only if the City first requests that Metricom attach its Radios to such buildings and edifices and Metricom determines that such attachments are both feasible and economical for the efficient operation of the System. The term City Properttj shan not include any decorative City-owned poles of any type. 1.4 Effective Date. "Effective Date" means the latest to occur of (a) the date on which this Franchise, as finany approved by the City Council of Arcadia, is executed by the City and delivered to Metricom; (b) the date on which all permits required hereunder are issued by the City; or (c) the date on which Metricom hangs its first Radio as provided below. 1.5 FCC. "FCC" means the Federal Communications Commission. 1.6 Fee. "Fee" means any assessment, license, charge, fee, imposition, tax (but excluding any utility users' tax or franchise fees), or levy of general application to Persons doing business in the City lawfully imposed by any governmental body. 1.7 Gross Revenues. "Gross Revenues" means the gross dollar amount accrued on Metricom's books for Services provided to its customers with billing addresses in the City, excluding (i) the Franchise Fee, if any, payable pursuant to 94.1 et seq. below; (ii) local, state, or federal taxes collected by Metricom that have been billed to the subscribers and separately stated on subscribers' bills; and (iii) revenue uncollectible from subscribers (i.e., bad debts) with billing addresses in the City that was previously included in Gross Revenues. 1.8 Laws. "Laws" means any and all statutes, constitutions, ordinances, resolutions, regulations, judicial decisions, rules, tariffs, administrative orders, certificates, orders, or other requirements of the City or other governmental agency having joint or several jurisdiction over 'the parties to this Franchise, in effect either at the time of execution of this Franchise or at any time during the presence of Radios in the Public Right of Way. 1.9 Metricom. "Metricom" means Metricom, Inc., a corporation duly organized and existing under the laws of the State of Delaware, and its lawful successors, assigns, and transferees. 1.10 PUc. "PUe" means the California Public Utilities Commission. 1.11 Franchise. "Franchise" means this nonexclusive Franchise Agreement and may also refer to the associated right to encroach upon the public right-of-way conferred hereunder. Telecommunications FrancMse A~nt City of A,raufia :: Mdricom, Inc. page 2 of18 orcadial.doc {07bwc23"P"98{ 12,129/1998 2097 1.12 Persoll. "Person" means an individual, a corporation, a limited liability company, a general or limited partnership, a sole proprietorship, a joint venture, a business trust, or any other form of business entity or association. 1.13 Provision. "Provision" means any agreement, clause, condition, covenant, qualification, restriction, reservation, term, or other stipulation in this Franchise that defines or otherwise controls, establishes, or limits the performance required or permitted by any party to this Franchise. All Provisions, whether covenants or conditions, shall be deemed to be both covenants and conditions. 1.14 Public Right of Way. "Public Right of Way" means in, upon, above, along, across, and over the public streets, roads, lanes, courts, ways, alleys, boulevards, and places, including all public utility easements and public service easements as the same now or may hereafter exist that are under the jurisdiction of the City. This term shall not include any property owned by any Person or Agency other than the City except as provided by applicable Laws, pursuant to an agreement between the City and any such Person or Agency, or pursuant to an easement, dedication, or other property interest granted in favor of the City. 1.15 Radio Month. "Radio Month" means a calendar month during which a Radio occupies space on a piece of City Property, even if such occupancy is less than the entire month. 1.16 Radio. "Radio" means the radio equipment, whether referred to singly or collectively, to be installed and operated by Metricom hereunder and more particularly' described in Exhibit A attached hereto. 1.17 Ricochet™. ''Ricochet™'' or ''Ricochet™ MCDN" means Ricochet™ MicroCellular Digital Network, a wireless, microcellular digital radio communications network owned and operated by Metricom. 1.18 Servic~~s. "Services" means the wireless digital communications services provided through Ricochet by Metricom to subscribers with billing addresses within the City. 2 TERM. The term of this Franchise shall commence on the Effective Date and shall expire on the date which completes five (5) years after the Effective Date, unless it is earlier terminated by either party in accordance with the provisions herein. After the initial term of this Franchise, the term shall be renewed automatically for successive terms of three (3) years each on the same terms and conditions as set forth herein, except that the Annual Fee shall be subject to adjustment as provided in 84.1 below, unless Metricom notifies City of its. intention not to renew not less than thirty (30) calendar days prior to commencement of the relevant renewal term. Each renewal shall TelecommuniCJZtions Franchise Agreement City of Arcadia :: Metricom, Inc. pagtJ of18 orCJldial.doc (Olbwc23apa98] 11/29/1998 2097 be subject to the reasonable approval of the City Council, which the City will not unreasonably withhold so long as Metricom is not in default under this Franchise and faithfully performs all its obligations hereunder. 3 SCOPE OF FRANCHISE. Any and all rights expressly granted to Metricom under this Franchise, which shall be exercised at Metricom's sole cost and expense, shall be subject to the prior and continuing right of the City under applicable Laws to use any and all parts of the Public Right of Way exclusively or concurrently with any other Person or Persons, including (without limitation) other providers of wireless data communication services of any kind, and shall be further subject to all deeds, easements, dedications, conditions, covenants, restrictions, encumbrances, and claims of title which may affect the Public Right of Way. Nothing in this Franchise shall be deemed to grant, convey, create, or vest a real property interest in land in Metricom, including any fee, leasehold interest, or easement. 3.1 Attachment to City Property. The City hereby authorizes Metricom to attach, install, operate, maintain, remove, reattach, reinstall, relocate, and replace Radios in or on City Property for the purposes of providing Services to Persons located within or without the limits of the City. Any work performed pursuant to !;he rights granted under this Franchise shall, at the City's option, be subject to the prior review and approval of City in accordance with the provisions of S 6. The location of each Radio installed by Metricom or its designee shall be disclosed in writing to the City by Metricom within ten (10) days after its installation, removal, or relocation as required under S 6.1. The locations of Metricom's planned initial installation of Radios shall be incorporated in Exhibit B attached to this Franchise. Metricom agrees that the number of Radios attached to City Property shall not exceed seven (7) per square mile without the express consent of the City. In addition, Metricom agrees to utilize City Property in preference to third-party-owned property for the attachment of Radios wherever such attachment is functionally feasible and commercially reasonable. Metricom agrees to upgrade its system operating in the City with any technical improvements made by Metricom to its Radios within ninety (90) days of introduction in surrounding cities in the Los Angeles GSA. 3.2 Attachment to Third-Party Property. Subject to obtaining the permission of the owner(s) of the affected property and of the City's Maintenance Services Director, the City hereby authorizes and permits Metricom to attach, install, operate, maintain, remove, reattach, reinstall, relocate, and replace such number of Radios in or on poles or other structures owned by public utility companies, including SCE, or other property owners located within the Public Right of Way as may be permitted by the public utility company or property owner, as the case may be. Metricom shall furnish to the City documentation of such permission from the individual utility or property owner responsible. TtlecommuniClltions Fro.ndlist Agrrement City of Arcadia :: Mdricom, Inc. page 4 af18 arcadial.doc {Olbwc23apa98] 12/Z9/1998 2097 3.3 No Interference. Metricom in the performance and exercise of its rights and obligations under this Franchise shall not interfere in any manner with the existence and operation of any and all public and private rights of way, sanitary sewers, water mains, storm drains, gas mains, poles, rerial and underground electrical and telephone wires, electroliers, cable television, and other telecommunications, utility, or municipal property, without the express written approval of the owner or owners of the affected property or properties. 3.4 Compliance with Laws. Grantee shall comply with all federal, state, and city laws, statutes, ordinances, rules, and regulations and the orders and decrees of any courts or administrative bodies or tribunals with jurisdiction over the parties to this Franchise Agreement in any manner affecting the performance of the Franchise. 3.5 Modification of Service Voltage. The City reserves the right to modify the service voltage delivered to or at any street light pole or utility pole on which a Radio may be located. Metricom shall replace or modify any Radio that will be affected by such voltage modifications within thirty (30) days of receiving prior written notice of voltage modifications. In the event that Metricom fails to replace or modify any Radio within the thirty-day notice period before the voltage modification, the City may disconnect any such Radio until Metricom performs and completes the necessary work and advises City accordingly. 4 FEES AND TAXES. Metricom shall be solely responsible for the payment of all lawful Fees and utility charges in connection with the exercise of Metricom's right under this Franchise including those set forth below. 4.1 Franchise Fee. Metricom shall pay to the City, on an annual basis, an amount (the "Franchise Fee") equal to five percent (5%) of Metricom's Gross Revenues collected during each preceding calendar year, which amount shall be collected from subscribers of the Services and remitted to City as provided herein. The Franchise Fee shall be due on or before the forty-fifth (45th) day after the end of each calendar year or fraction thereof. Within forty-five (45) days after the termination of this Franchise, the Franchise Fee shall be paid for the period which has elapsed since the end of the last calendar year for which the Franchise Fee has been paid. Metricom shall furnish to the City with each payment of the Franchise Fee a statement, executed by an authorized officer of Metricom or his or her designee, showing the amount of Gross Revenues for the period covered by the payment. If Metricom discovers that it has failed to pay the entire or correct amount of the Franchise Fee, Metricom shall pay the difference to the City or make such other adjustment within fifteen (15) days of discovery of the error or determination of the correct amount. Any overpayment to the City through error or otherwise shall be offset against the next payment due from a'cadia2.doc {Olbwc23apa98} T~lecommuniCQtion5 FrandJi~ Agreement City of ArauJia :: Metn'com. Inc. page5af18 12,129/1998 2097 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 collecting any balance due to the City. 4.1.1 Accounting and Audit. Metricom shall keep accurate books of account at its principal office in Los Gatos or such other location of its choosing for the purpose of determining the amounts due to the City under S 4.1. The City may inspect Metricom's books of account at any time during regular business hours on five (5) days' prior written notice and may audit the books from time to time, but in each case only to the extent necessary to confirm the accuracy of payments due under S 4.1. The City shall bear the cost of any such audit, unless such audit reveals an underpayment to the City of more than five percent (5%) of the Franchise Fee which was due to the City for such calendar year. Once each calendar year the City may require an annual report from Metricom relating to its operations and revenues within the City. City agrees to hold in confidence any nonpublic information it learns from Metricom in accordance with applicable law. 4.2 Annual Fee. Metricom shall pay to the City an annual fee (the" Annual Fee") in the amount of Sixty Dollars ($60.00) for the use of each piece of City Property upon which a Radio has been installed pursuant to this Agreement. The initial Annual Fee shall be due and payable not later than the date of installation of the first Radio on City Property under this Franchise (the "Installation Date") and shall be computed based upon the number of Radios Metricom estimates as of the Installation Date that it will install on City Property during the succeeding twelve (12) months. The Annual Fee for subsequent years shall be due and payable not later than thirty (30) days following each anniversary of the Installation Date and shall equal the total number of Radios then installed on City Property pursuant to this Franchise multiplied by the Annual Fee, adjusted for the Prior Year Adjustment, as described immediately below. The Prior Year Adjustment shall either increase or decrease a subsequent year's aggregate Annual Fee to account for the installation or removal of Radios during the prior year, and shall equal the difference between (i) the total number of Radios used to calculate the prior year's aggregate Annual Fee multiplied by twelve (12), and (ii) the actual number of Radio Months which occurred during such year, multiplied by one-twelfth of the Annual Fee. 4.2.1 CPI Adjustment. At the commencement of each renewal term, the Annual Fee with respect to such term shall be adjusted effective January 1st of the first year of such renewal term by a percentage amount equal to Telecommunications Frandlise Agreement City of Araufia :: Metricom, Inc. page 60f18 Qrcadial.doc [07!nuc23apa98} 12/29/1998 2097 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 which occurred during the previous term or renewal term, as the case may be. 4.3 City Access Program Subscription Rate. In consideration of City's execution and delivery of this Franchise, City shall have the right throughout the term of this Franchise to purchase a number of subscriptions based upon the City's population, up to the maximum number set forth below, to Ricochet™ Basic Service Subscriptions when such service is commercially available in the City at the rate of fifty percent (50%) of the regular Basic Service Subscription rate as current from time to time. The number of subscriptions which the City may purchase at the City Access Program rate shall be determined in accordance with the City's official population, as shown on the latest available census data, as follows: (a) for cities with a population of less than 100,000, up to a maximum of twenty (20) discount subscriptions; (b) for cities with a population of 100,000 to 249,000, up to a maximum of thirty (30) discount subscriptions; (c) for cities with a population of 250,000 to 500,000, up to a maximum of forty (40) discount subscriptions; and (d) for cities with a population of over 500,000, up to a maximum of fifty (50) discount subscriptions. City understands and agrees that Metricom's modems and equipment required to utilize the discounted subscriptions and any additional service subscriptions or service options the City may desire are expressly excluded from this special City Access Program rate and may be obtained from either Metricom or an authorized retailer at market rates current from time to time or under other promotional programs which may be available from time to time in addition to the City Access Program rate. City shall use all subscriptions provided pursuant to this ~ 4.3 solely for its own use and shall not be entitled to resell, distribute, or otherwise permit the use of the same by any other party. 4.4 Reimbursement of City's Expenses. Metricom shall reimburse the City at City's standard rates for all reasonable expenses relating to the preparation, issuance, and implementation of this Franchise, promptly upon receipt of bills, paid invoices, and such other documentation as Metricom shall reasonably require, up to a maximum of Two Thousand Dollars ($2,000). The reimbursement provided for in this ~ 4.3 shall not replace or excuse Metricom from (a) the payment of any applicable City fee, including (without limitation) the Annual Fee and any license fee, for work undertaken in connection with this Franchise, (b) providing the tradeouts elected by the City in lieu of fees, or (c) taxes, if any. 4.5 Potential Utility Users' Tax. Metricom acknowledges and agrees that the City may require users of revenue-producing services such as the Services to pay Ttltcommuniaztions Frandli2 Agrtt~nt City of Araulia :: Metricom, Inc. paS' 70/18 orcadial.doc [07bwc23apa98} 12/29/1998 2097 a utility users' tax ("Utility Tax") to the City pursuant to City's Municipal Code. If the City determines that the Services are subject to the Utility Tax, Metricom agrees to collect the tax from Service users and remit such tax to the City in accordance with City's Municipal Code. 4.6 Most-Favored Municipality Clause. Should Metricom after the parties' execution and delivery of this Use Agreement enter into an attachment permit agreement with another municipality of the same size or smaller than the City in the Los Angeles Metropolitan Statistical Area which agreement contains financial benefits for such municipality which, taken as a whole and balanced with the other terms of such agreement, are in the City's opinion substantially superior to those in this Use Agreement, City shall have the right to require that Metricom modify this Use Agreement to. incorporate the same or substantially similar superior benefits and such other terms and burdens by substitution, mutatis mutandis, of such other agreement or otherwise. 5 REMOVAL AND RELOCATION OF RADIOS. Grantee understands and acknowledges that City may require Grantee to remove or relocate, and Grantee shall, at City's direction, remove or relocate within forty-eight (48) hours upon reasonable request from City at Grantee's sole expense, any Radio whose removal or relocation City determines is needed for any of the following purposes: (a) to facilitate or accommodate the construction, completion, repair, relocation, or maintenance of a City project; (b) because the Radio is interfering with or adversely affecting proper oper'!tion . of light poles, traffic signals, or other City facilities; or (c) to protect or preserve the public health, safety, welfare, or interest. City understands and acknowledges that Grantee shall have the right to' remove its Radios in the exercise of its business judgement. 5.1 Malfunctioning or Nonfunctioning Radios. Grantee shall remove and replace or repair any nonfunctioning or malfunctioning Radio within forty-eight (48) hours of receiving notice from the City or any third party that such Radio is malfunctioning or nonfunctioning. City shall be under no obligation or duty to inspect or otherwise monitor the performance of the System. 5.2 Metricom Desires Relocation. In the event Metricom desires to relocate any Radios, Metricom shall so advise City in accordance with S 6. City will use its best efforts. to accommodate Metricom by making another functionally equivalent piece of City Property available for use in accordance with and subject to the terms and conditions of this Franchise, with particular reference to the requirements of S 3.1. 5.3 Discontinuation of Service. In the event that any Radio subject to this Franchise is abandoned and no longer placed in service for a period-of six (6) Ttltcommunications Franchise Agrtement City of Arcadia :: Metricom, Inc. pas< 80f18 a,,,,diU.doc [07/rwc230p098} 12129/1998 2097 months or more, Metricom promptly shall notify the City, and the City, at its option, may require Metricom promptly to remove the abandoned Radio(s) at Metricom's sole cost and expense or dedicate the same to the City. The City shall not issue notice to Metricom that the City intends to exercise the option to require removal or dedication of Radios, unless and until the City first gives fifteen (15) days' prior written notice to Metricom. If Metricom shall fail to remove the Radios as required by the City, the City shall be entitled to remove the Radios at Metricom's sole cost and expense. Metricom shall execute such documents of title as will convey all right, title, and interest in the abandoned Radios, but in no other Metricom property, intellectual or otherwise, to the City. 5.4 Damage to City Property. Whenever the removal or relocation of Radios is required under this Franchise, and such removal or relocation shall cause any City Property to be damaged, Metricom, at its sole cost and expense, shall promptly repair and return such City Property to an original and satisfactory condition in accordance with applicable Laws and subject to the reasonable approval of the City's Director of Maintenance Services, normal wear and tear excepted. If Metricom does not repair the site as just described, then the City shall have the option to perform or cause to be performed such reasonable and necessary work on behalf of Metricom and to charge Metricom for the proposed costs to be incurred or the actual costs incurred by the City at City's standard rates. Upon the receipt of a demand for payment by the City, Metricom shall reimburse the City for such costs. 5.5 Condition of Photoelectric Cells. Grantee acknowledges and agrees that Grantee bears all responsibility and costs for any and all photoelectric cells owned by the City or SCE that, for any reason, require repair or replacement on any light pole where Radios have been installed. 5.6 Workmanlike Performance. Grantee shall use and exercise due care, caution, skill, and expertise in performing all work under this Franchise and shall take all reasonable steps to safeguard work site areas. 5.7 Traffic Regulation. Grantee shall plan, organize, and perform its work under this Franchise in the manner that results in the minimum amount of traffic disruption. Grantee shall provide at its sole cost, all signs, barricades, arrowboards, lights, high-level flag trees, flag personnel, and other devices, materials, or personnel that may be needed in connection with the safe and careful performance of the work allowed under this Franchise. 5.8 Underground Work. Grantee shall perform no excavation, trenching, coring, boring, or digging into the ground, or installation of any equipment or other material into the ground or any other underground work in connection Tttecommunications Franc"i~ A~tl'Mnt City of ArcadiD :: Mctricom, Inc. pagd oJ18 a,radia2.dac (o7/1wc23apa98} 1/11/1999 2097 with the work to be performed or services to be provided by Grantee under this Franchise, except as expressly authorized by the Director of Maintenance Services in writing, and shall not otherwise disturb or disrupt the operation or maintenance of sanitary sewers, storm drains, gas or water mains, or other underground conduits, cables, or mains. 5.9 Damage to City Facilities or Property. Grantee agrees to repair or replace to City's satisfaction any facilities or property that City reasonably determines has been damaged, destroyed, defaced, or otherwise injured as a result of the work performed or services provided by Grantee under this Franchise. 6 ENCROACHMENT OR OTHER PERMIT. In the event that the attachment, installation, operation, or maintenance of Radios shall require any work, including (without limitation) the initial deployment and any subsequent installation, removal, or relocation of Radios, on City Property, Metricom shall apply for and obtain, through the City's Maintenance Services Department, the appropriate encroachment or other permits required by Law prior to the attachment, installation, operation, or maintenance of any such Radios. In the event Metricom desires to make any changes to its Radios, operation of them, or method of attaching Radios, Metricom shall submit documentation of such changes, including (without limitation) FCC certification of equipment and engineering, as reasonably required by City for City's prior review and approval. 6.1 Pole Locations. Grantee shall submit for approval to the Director of Maintenance Services a complete list of proposed pole attachment locations prior to deployment and installation. The Director of Maintenance Services shall issue written approval of the specific pole locations prior to deployment by the Grantee. Grantee shall submit written proof, in a form acceptable to the Director of Maintenance Services, that Grantee has secured the Consent of SCE to attach its Radios to SCE poles which are the subject of its application prior to the issuance of any City approvals or permits. The pole locations specified in any City approval may be amended from time to time upon request of Grantee subject to the prior written consent of the Director of Maintenance Services and SCE. Grantee shall promptly provide City with' an updated pole location list showing any such installed or relocated poles. 7 As-BUILT DRAWINGS. Upon the completion of the installation or relocation of any Radio(s), Metricom promptly shall furnish to the City, in hard copy and in Metricom's electronic format, suitable documentation showing the exact location of the Radios in the Public Right of Way. 8 INDEMNIFICATION AND SECURITY. Metricom agrees to indemnify, defend (with counsel reasonably acceptable to the City), protect, and hold harmless the City, its Telecommunications Frand,ise Agrten~nt City of Arcadill :: Metricom, Inc. 1"'8' lOofl8 arradia2.doc (Ollnvc23apa98] 1/11/1999 2097 council members, officers, employees, and agents from and against any and all claims, demands, losses, damages, liabilities, fines, charges, penalties, administrative and judicial proceedings and orders, judgements, remedial actions of any kind, all costs and cleanup actions of any kind, and all costs and expenses incurred in connection therewith, including reasonable attorney's fees and costs of defense (collectively, the "Losses") arising, directly or indirectly, in whole or in part, out of the activities or facilities described in this Franchise, including (without limitation) Metricom's equipment and Radios, the installation, relocation, and/or removal activities, any and all Metricom operations, including (without limitation) health, safety, environmental, or hazard claims, the City Property, and infrastructure of all kinds, except to the extent arising from or cau.sed by the sole negligence or willful misconduct of the City, its council members, officers, employees, agents, or contractors. 8.1 Waiver of Breach. The waiver by the City of any breach or violation of any Provision of this Franchise by Metricom shall not be deemed to be a waiver or a continuing waiver by the City of any subsequent breach or violation of the same or any other Provision of this Franchise by Metricom. 8.2 Waiver of Claims. Metricom waives any and all claims, demands, causes of action, and rights it may assert against the City on account of any loss, damage, or injury to any Radio or any loss or degradation of the SerVices as a result of a sudden or gradual loss or change of electrical power caused by, among other things, any of the following: an Act of God; an event or occurrence which is beyond the reasonable control of the City; a power outage; a lightning strike; a modification of City-supplied service voltage; the City's right to require the removal or relocation of Radios pursuant to ~ 5; or damage occasioned by the installation, maintenance, replacement, or relocation of any City-owned facility or third-party-owned facility to which such Radio is attached. 8.3 Limitation of City's Liability. The City shall be liable only for the cost of repair to damaged Radios arising from the sole negligence or wilJfuJ misconduct of City or its employees or agents, and the City shall not be responsible for any damages, losses, or liability of any kind occurring by reason of the acts of third parties or by reason of anything done or omitted to be done by the City or by any third party, including damages, losses, or liability arising from the issuance or approval by the City of a permit to any third party or any interruption in Services. 8.4 Security. Prior to commencement of work under this Franchise, the Grantee shall furnish or cause to be furnished to City the following security for the purpose of securing the faithful performance by Grantee of all the work, construction, installation, and other obligations required to be performed by Grantee under this Franchise, within the time periods set forth in this Franchise: T~lecommuniCQtion$ Frandlist Agreemtnt City of Arcadia :: Metricom. Inc. pagt 11 of]8 arauIial.doc {07lJwc23apa98] ]2/29/1998 2097 (i) a bond in the amount of Six Thousand Dollars ($6,000), in the form attached hereto as Exhibit C; and (ii) a letter of credit in the amount of Two Thousand Dollars ($2,000), in the form attached hereto as Exhibit D. Notwithstanding the foregoing, City shall have the right, in connection with its approval of any assignment or transfer of this Franchise for which City's consent is required pursuant to S 12 below et seq. below, to require in the exercise of its reasonable discretion that the entire amount of the security required under this S 8.4 be furnished to City in the form of the letter of credit attached hereto as Exhibit D or other liquid or cash security reasonably acceptably to City. The rights reserved to the City with respect to the security fund are in addition to all other rights of the City, and no action, proceeding, or exercise of a right with respect to such security fund shall affect any other right the City may have. This Franchise Agreement provides no right to Grantee to utilize any city-owned pole or other City-owned property other than the City streets and rights of way. 9 INSURANCE. Metricom shall not commence work under this Franchise until proof of all insurance is provided to the Arcadia City Attorney and his approval is obtained as signified by signing approval as to form on this Franchise. Metricom shall obtain and maintain at all times during the term of this Franchise commercial general liability insurance and commercial automobile liability insurance protecting Metricom in an amount of not less than Two Million Dollars ($2,000,000) per occurrence (combined single limit), including bodily injury and property damage, and in an amount of not less than Two Million Dollars ($2,000,000) annual aggregate for each personal injury liability, products-completed operations. Such insurance shall name the City, its council members, officers, and employees as additional insureds as respects any covered liability arising out of Metricom's performance under or taking the benefits of this Franchise. Coverage shall be provided in accordance with the limits specified and the Provisions indicated herein. Oaims-made policies are not acceptable. When an umbrella or excess coverage is in effect, coverage shall be provided in following form. Such insurance shall not be canceled or materially altered to reduce coverage until the City has received at least thirty (30) days' advance written notice of such cancellation or change. Metricom shall be responsible for notifying the City of such change or cancellation. Metricom further covenants and agrees that it will not permit any 'gap' in insurance coverages required hereunder to occur at any time during the term hereof, unless such insurance becomes commercially unobtainable or unavailable and the City has been given at least thirty (30) days' advance written notice of such unavailability. In any such case, the City shall have the right to terminate this Franchise upon at least twenty (20) days' advance written notice to Metricom. 9.1 Required Certificates of Insurance. Metricom shall file the required original certificate(s) of insurance with endorsements with the City, subject to the City's prior approval, which shall clearly state all of the following: Teltcommuniaztions Franchise A.ptment City of Arcadia :: M~tricom, Inc. P"gt 12 of18 arcadia2.doc [Olbwc23ap098} 17/29/1998 2097 (a) Policy number; name of insurance company; name, address, and telephone number of the agent or authorized representative; name, address, and telephone number of insured; project name and address; policy expiration date; and specific coverage amounts; (b) A provision stating that thirty (30) days' prior notice of cancellation is required to ~e City; and (c) A provision stating that Metricom's insurance is primary as respects any other valid or collectible insurance that the City may possess, including any self-insured retentions the City may have; and any other insurance the City does possess shall be considered excess insurance only and shall not be required to contribute with this insurance; and (d) The City, its council members, officers, and employees are named as additional insureds as respects any covered liability arising out of Metricom's performance under or taking the benefits of this Franchise. The certificate(s) of insurance with endorsements and notices, shall be mailed to the City at the address specified in S 10 below: 9.2 Workers' Compensation Insurance. Metricom shall obtain and maintain at all times during the term of this Franchise statutory workers' compensation and employer's liability insurance in an amount not less than Five Hundred Thousand Dollars ($500,000) and shall furnish the City with a certificate showing proof of such coverage. 9.3 Insurer Criteria. Any insurance provider of Metricom shall be admitted and authorized to do business in California and shall be rated at least A:X in A.M. Best & Company's Insurance Guide. Insurance certificates issued by non-admitted insurance companies are not acceptable. ,9.4 Severability of Interest. Prior to the execution of this Franchise, any- deductibles or self-insured retentions must be stated on the c,ertificate(s) of insurance, which shall be sent to and approved by the City. "Cross liability," "severability of interest," or "separation of insureds" clauses shall be made a part of the commercial general liability and commercial automobile liability policies. 10 NOTICES. All notices which shall or may be given pursuant to this Franchise shall be in writing and delivered personally or transmitted (a) through the United States mail, by registered or certified mail, postage prepaid; (b) by means of prepaid overnight delivery service; or (c) by facsimile transmission, if a hard copy of the same is followed Telecommunications Francllise Agrttment City of Arcadia :: M,tricom. Inc. p"g<l30f18 orcadia2.doc (07bwc230pa98} 11/29/1998 2097 by delivery through the U. S. mail or by overnight delivery service as just described, addressed as follows: if to the City: CITY OF ARCADIA Attn: City Clerk & City Attorney 240 West Huntington Drive Arcadia, CA 91007 if to Metricom: MEfRICOM, INC. Attn: Property Manager 980 University Avenue Los Gatos, CA 95030 Notices shall be deemed given upon receipt in the case of personal delivery, three (3) days after deposit in the mail, or the next day in the case of overnight delivery. Either party may from time to time designate any other address for this purpose by written notice to the other party delivered in the manner set forth above. 11 TERMINATION. If Grantee defaults in the performance of thiS Franchise or materially breaches any of its provisions and fails to cure such default or breach within thirty (30) days after written notice from the City, City, acting through the City Manager, at its option may immediately terminate the Franchise upon written notice to Grantee; provided, however, that if such cure cannot reasonably be cured within such thirty-day period and said default or breach does not affect the public health or safety, City shall not have the right to terminate the Franchise if Grantee commences such cure within such thirty-day period, and thereafter diligently and promptly prosecutes such cure to completion. Nothing in this 911 shall be construed to grant Grantee an amount of time to cure a failure to perform or comply with this Franchise which would extend beyond the expiration date established under 9 2 above. Upon termination, Grantee shall pay City a prorated portion of the Franchise Fee calculated on the Gross Receipts Grantee has received since the prior anniversary of the Effective Date. 11.1 Cessation of Work. In the event of termination, Grantee shall immediately cease all work being performed under this Franchise Agreement, excepting only that work necessary for Grantee to remove the System and leave all work site areas in a clean and safe condition and in accordance with this Franchise Agreement. Termination of this Franchise Agreement by City, through the City Manager or otherwise, shall constitute the withdrawal of any consent or ., ,. I , r , [' ( Ttlecommu.nimtions Frandlist Agrunu:nt City of Arauiin :: Mttricom, Inc. page 14 af18 al'Clldill2.dac [07bwc23apa981 12/29/1998 2097 authorization of City for Grantee to perform any construction or other work under this Franchise Agreement in the public rights of way or on public property, excepting only that work necessary for Grantee to remove the System and leave all work site areas in a clean and safe condition in accordance with this Franchise Agreement. 12 ASSIGNMENT. This Franchise shall not be assigned or transferred by Grantee without the prior written consent of City, which consent shall not be unreasonably withheld, conditioned, or delayed. 12.1 Notice of Transfer and Response. Grantee shall give City thirty (30) days' prior written notice of any proposed assignment or transfer for which City's consent is required hereunder. City shall give Grantee written approval or disapproval of any such proposed assignment or transfer within ninety (90) days after Grantee's request therefor, and City's failure to approve or deny any such request within such ninety-day period shall be deemed an approval. Grantee agrees to reimburse City for its reasonable expenses incurred in reviewing any proposal for an assignment or transfer for which City's consent is required hereunder. Grantee shall provide all information and documents reasonably requested by the City relating to the transaction and assignee/ grantee. The transfer of operating control over the System pursuant to a management contract or similar arrangement shall be deemed a transfer for purposes of this Franchise Agreement. 12.1.1 Exempted Transfers. Notwithstanding the foregoing, (i) the transfer of the rights and obligations of Grantee to a subsidiary or other affiliate of Grantee that is under the control of Grantee shall not be deemed an assignment or transfer for purposes of this Franchise Agreement, so long as Grantee remains jointly and severally liable with such affiliate with respect to all liabilities and obligations of Grantee hereunder; and (ii) a change in control of Grantee (as defined in S 12.2.1 below) shall not be deemed an assignment or transfer for purposes of this Franchise Agreement. 12.2 Change in Control as Transfer. Upon a change in control of Grantee (as defined in S 12.2.1 below), City shall have the right, for a period of ninety (90) days after it receives notice of the occurrence of such change in control, to notify Grantee in writing of its intention to terminate this Franchise Agreement effective no less than ninety (90) days after such written notice. Grantee shall provide all information and documents reasonably requested by the City relating to the transaction and assignee/ grantee. Such termination shall not be effective, and this Franchise Agreement shall continue in full force and effect in accordance with its tenns, if, during such ninety-day period, Grantee provides City evidence Telecommunication, FrandJi~ Agrranent City of Arcadia :: Mttricom, Inc. pagelS ofl8 an:adial.doc {Olbwc23apa98} 12/29/1998 2097 reasonably demonstrating that (i) it is not then in breach of this Franchise Agreement; (ii) the financial condition of Grantee or any successor in interest to Grantee's status as Grantee immediately after the change in control would be at least as strong as Grantee's financial condition immediately prior to the change in control; and (iii) the experience and technical qualifications of Grantee or of Grantee's successor in interest, as the case may be, or its then-existing management team, in the provision of telecommunications or similar services evidences an ability to own and operate the System. Grantee agrees to reimburse the City for its reasonable expenses incurred in reviewing any proposed change in control. 12.2.1 Definition of Change in Control. For purposes of this Franchise Agreement, a "change in control" of Grantee shall mean the acquisition by any person (including any "group" within the meaning of ~ 13(d) of the Securities Exchange Act of 1934, as amended) of the power directly or indirectly, through the ownership of voting securities, by contract or otherwise, to direct the management and policies of Grantee; provided however that the ownership of more than fifty percent (50%) of Grantee's outstanding voting securities shall be deemed to constitute control, and the ownership of thirty percent.(30%) or less of Grantee's voting securities shall be deemed not to constitute control. Grantee shall advise City whenever any person or "group" becomes the owner of more than thirty percent (30%) of Grantee's outstanding voting securities. 13 MISCELLANEOUS PROVISIONS. The provisions which follow shall apply generally to the obligations of the parties under this Franchise. 13.1 Nonexclusive Use. City understands that Metricom will be operating in the 902 to 928 MHz band of the radio spectrum, for which no license from the FCC may .be required. Metricom understands that this Franchise does not provide Metricom with exclusive use of any City Property and that City shall have the right to permit other providers of telecommunications services to install equipment or devices on City Property; however, City agrees promptly to notify Metricom of the receipt of a proposal for the installation of communications equipment or devices on City Property, regardless of whether a license is required by the FCC for the operation thereof. In addition, City agrees to advise such other providers of telecommunications services of the presence or planned deployment of the Radios on City Property. 13.2 Amendment of Franchise. This Franchise may not be amended except pursuant to a written instrument signed by both parties. Ttlecommuniaznons Frandlist "grumtnt City of AmuJia :: Mdricom, Inc. pagt 16 of18 arazdia2.dac [Olbwc23apa98} 12/29/1998 2097 13.3 Severability of Provisions. If anyone or more of the Provisions of this Franchise shall be held by court of competent jurisdiction in a final judicial action to be void, voidable, or unenforceable, such Provision(s) shall be deemed severable from the remaining Provisions of this Franchise and shall in no way affect the validity of the remaining portions of this Franchise. 13.4 All-Hours Contact. Metricom shall be available to the staff employees of any City department having jurisdiction over Metricom's activities twenty-four (24) hours a day, seven (7) days a week, regarding problems or complaints resulting from the attachment, installation, operation, maintenance, or removal of the Radios. The City may contact by telephone the network control center operator at telephone number (800) 556-6123 regarding such problems or complaints. 13.5 Governing Law; Jurisdiction. This Franchise shall be governed and construed by and in accordance with the laws of the State of California. In the event that suit is brought by a party to this Franchise, the parties agree that trial of such action shall be vested exclusively in the state courts of California, County of Los Angeles, or in the United States District Court, Central District of ~alifornia in the County of Los Angeles. 13.6 Attorneys' Fees. Should any dispute arising out of this Franchise lead to litigation, the prevailing party shall be entitled to recover its costs of suit, including reasonable attorneys' fees. 13.7 Exhibits. All exhibits referred to in this Franchise and any addenda, attachments, and schedules which may from time to time be referred to in any duly executed amendment to this Franchise are by such reference incorporated in this Franchise and shall be deemed a part of this Franchise. 13.8 Successors and Assigns. This Franchise is binding upon the successors and assigns of the parties hereto. 13.9 Rules, Regulations, and Specifications. Metricom acknowledges that the City may develop rules, regulations, and specifications for the attachment, installation, and removal of Radios and any similar purpose radios on City Property, and such rules, regulations, and specifications, and when finalized, shall govern Metricom's activities hereunder as if they were in effect at the time this Franchise was executed by the City; provided, however, that in no event shall such rules, regulations or specifications materially interfere with or affect Metricom's right to install Radios, or Metricom's ability to transmit or receive radio signals from Radios installed, pursuant to and in accordance with this Franchise, and shall not materially increase Metricom's obligations hereunder. Ttlecommunic:atians Frandrise Agreement City of Arauiill :: Mttricom, Inc. page 17 of18 arazdial.d<< (Olbwc2.1apa9B} 11129/1998 2097 13.10 Advice of Displacement. To the extent the City has actual knowledge thereof, the City will attempt to inform Metricom of the displacement of any pole on which any Radio is located. 13.11 Consent Criteria. Unless otherwise specifically provided herein, in any case where the approval or consent of one party hereto is required, requested, or otherwise to be given under this Franchise, such party shall not unreasonably delay or withhold its approval or consent. 13.12 Entire Agreement. This Franchise contains the entire understanding between the parties with respect to the subject matter herein. There are no representations, agreements or understandings (whether oral or written) between or among the parties relating to the subject matter of this Franchise which are not: fully expressed herein. IN WITNESS WHEREOF the parties have executed this Agreement as of the date first above written. City: CITY OF ARCADIA, a California municipal corporation ~ . '/A. ~J G~A. Kovacic By: Its: Date: {nanlt typed} Mayor Januarv 29 .1999 APYi)J:{!j City Attorney !rJ~ Metricom: METRICOM, INC., a Delaware corporation ~~ (name typed) Senior Vice President. Field Qps Group January 12 By: Its: Date: .1999 Telecommunications Franchise Agreement City O'f Arcadia :: Mctricom, Inc. pagelS of1S arcadia2.doc IOlbwc23apa98} 1/11/1999 2097 y ~ @ '3 w > 0.... o I- @. @ E o u .~ - ~ ~ ~~ II v ~O~ ~ ~ ~ ~ 00 00 ~3IT A-l 3 .w > o z w 2097 ~ ID::.. 910 t7~ :'.1 A'YC.. Lcs r. CA .,~ poletop Radio Mounting I e I @ I s EXEI3IT A-2 2097 EXHIBIT B RADIO LOCATIONS PROPOSED LOCATIONS TO BE PROVIDED AFfER REVIEW OF STREET LIGHT MAPS AND PRIOR TO DEPLOYMENT 2097 [EXHIBIT C] [FORM OF SURETY BOND] Bond Number: SURETY BOND KNOW ALL MEN BY THESE PRESENTS: That METRICOM, INC. as Principal, and incorporated under the laws of the State of , and authorized to execute bonds and undertakings as sole surety, are held and firmly bound unto , as Obligee, in the sum of ($ ); for the payment thereof, well truly to be made, said Principal and Surety bind themselves, their administrators, successors and assigns, jointly and severally, firmly by these presents. The condition of the foregoing obliga,tion is such that: WHEREAS, the above bounden Principal is about to enter into a certain agreement with the Obligee for the following: , the award of which said agreement was made to the Principal by the Obligee, on ',' '" NOW THEREFORE, if the Principal shall well, truly and faithfully perform its duties, all the undertakings, covenants, terms, conditions, and provisions of said agreement during the original term thereof, and any extensions thereof which may be granted by the Obligee, with or without notice to the Surety, and if he shall satisfy all claims and demands incurred under such agreement, and shall fully indemnify and save harmless the Obligee from all costs and damages which it may suffer by reason of failure to do so, and shall reimburse and repay the Obligee all outlay and expenses which the Obligee may incur in making good any default, then this obligation shall be void; otherwise to remain in full force and effect. ." .' ...' PROVIDED, FURTIIER, that the said Surety, for value received, hereby stipulates and agrees that no change, extension of time, alteration or addition to the terms of the agreement or to the work to be performed thereunder or the specifications accompanying the same shall in any way affect its obligation on this bond, and it does hereby waive notice of any such change, extension of time, alteration or addition to the terms of the agreement or to the work or to the specifications. Mdricom Bond Form page C.la/2 2097 PROVIDED, HOWEVER, this bond is issued subject to the following express conditions: 1. This bond shall be deemed continuous in form and shall remain in full force and effect until canceled under Section . after which all liability ceases except as to any liability incurred or accrued prior to the date of such cancellation. 2. The aggregate liability of the Surety hereunder on all claims whatsoever shall not exceed the penal sum of this bond in any event. 3. The surety reserves the right to withdraw as surety from this bond, except as to any liability incurred or accrued, and may do so upon giving the Obligee sixty (60) days written notice. . SIGNED AND SEALED this day of .19_. PRINCIPAL SURETY (Type Company Name) By: Title: By: Title: By: Address: ','. '.: Telephone: (Affix Corporate Seals) :t: ':' i:, (Attach Acknowledgments of both Principal and Surety signatures) f. 1kIriCDm Bond Form page C-2 0[2 2097 I \ : i \. 'ij:'.- \ J LiJ: '\ ,,:' " tJ ._,:; I I ~ , . . -- ~\~, ~y ,,' .~~:J PAGE: 1 ATE OF ISSUE: OUR IRREVOCABLE STANDBY CREDIT: DATE OF EXPIRY: PLACE OF EXPIRY: COUNTERS - , , AT OUR ABOVE PPLICANT: STRICOM, INC. 30 UNIVERSITY AVENUE )S GATOS, CA 95030-2319 BENEFICIARY: AMOUNT: USD 1.00 ONE AND 00/100'S US DOLLARS S HEREBY ESTABLISH IN YOUR FAVOUR THIS CREDIT AVAILABLE WITH WELLS FARGO BANK, .. .A., SAN FRANCISCO, Co'\. BY PAYMENT OF YOUR DRAFT(S) AT SIGHT DRAWN ON WELLS ~GO BANK, N.A. ACCOMPANIED BY: - BENEFICIARY'S SIGNED AND DATED STATEMENT WORDED AS FOLLOWS: "THE UNDERSIGNED, AN AUTHORIZED REPRESENATIVE OF (NAME OF BENEFICIARY) , HEREBY CERTIFIES THAT METRICOM, INC. I~ NOT FULLFILLED ITS OBLIGATIONS PURSUANT TO THAT CERTAIN (NAME OF AGREEMENT) SIGNED BY AND BETWEEN - (NAME OF BENEFICIARY) AND METRICOM, INC." ~TIAL DRAWINGS ARE PERMITTED. (MORE THAN ONE DRAFT MAY BE DRAWN AND PRESENTED ~ER THE" LETTER OF CREDIT) ? ANY INSTRUCTIONS ACCOMPANYING A DRAWING UNDER THIS LETTER OF CREDIT REQUEST ~.T PAYMENT IS TO BE MADE BY TRANSFER TO AN ACCOUNT WITH US OR AT ANOTHER BANK, S ~~/OR SUCH OTHER BANK MAY RELY ON AN ACCOUNT NUMBER SPECIFIED IN SUCH ~STRUCTIONS EVEN IF THE NUMBER IDENTIFIES A PERSON OR ENTITY DIFFERENT FROM THE NTENDED PAYEE. JCUMENTS MUST BE PRESENTED TO US NO LATER THAN 5:00 P.M. KAFT (S) MUST INDICATE THE NUMBER AND DATE OF THIS CREDIT. ACH DRAFT PRESENTED HEREUNDER MUST BE ACCOMPANIED BY THIS ORIGINAL CREDIT FOR ,. ~. r : L . EXHIBIT 0 PAGE 1 OF 2 2097 ....'.,. THIS IS AN INTECRAL PART OF LETTER OF CREDIT NUMBER: NZS261542 PAGE: 2 'JR ENDORSEMENT THEREON OF THE AMOUNT OF SUCH DRAFT. JCUMENTS MUST BE FORWARDED TO US IN ONE PARCEL AND MAY BE MAILED TO WELLS FARGO ANK, N.A., OPERATIONS GROUP, NORTHERN CALIFORNIA, 525 MARKET STREET, 25TH SOOR, SAN FRANCISCO, CA 94105-2733. ~IS CREDIT IS SUBJECT TO THE UNIFORM CUSTOMS AND PRACTICE FOR DOCUMENTARY ~DITS (1993 REVISION), INTERNATIONAL CHAMBER OF COMMERCE, PUBLICATION NUMBER JO, AND ENGAGES US IN ACCORDANCE WITH THE TERMS THEREOF. AUTHORIZED SIGNATURE ~EASE CONTACT JAMES SINGH BY TELEPHONE AT (415)396-4014 OR BY FAX AT !15)541-0299 REGARDING ANY INQUIRIES. . EXHI3IT D P.l\GE 2 OF 2 '. ..... ,,; .. ." 2097 ~.~!2~~ ~i1~1TF p 'OUCEll WSSF Woodruff-Sllwycr & Co. 220 BWlh Street, 7th Floor S:m Fr:lDci.sco,C.~ 94104-Q000 n5-391-2141 "RED 007815 )icmeum, IDe., Mcmeolll DC LLC, Memcom NY liC, etal. 980 University Avenue Los Gatus , CA 95032-2375 . ~.;:g DA.TE (MMlCDI'Y'Y) .,! 01127/99 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. COMPANIES AFFORDING COVERAGE COMPNf( A ChubbNigil:mt Insur:mee Co. COMPANY B ChubblFedenl Insur:mee Cu, COMPANY c St. Paul Guardilm lD~lIr:mee Co. COMPN'iY D ..............E """"~""'" _~""'~'''~.~l~,"'~....,_.,<l,'!i'' .~~'MllJ... '';='''~.' . '._--= J,lJ.:....r9"D :;.:rs:..,~~:~31~" '~". ~~~. >.:.:t;e.i.....:._. . ',.:.:1,':.::,H' :..a;,~'.::....::... '~';'..:~::r ""';r1ISIS TO CERTIFY ,HAT THE POUCIES OF INSURANCl: US'i'EO BELOW HAve BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POUCY PERlCD INDICAiED. NOTWITHSTANDING ANY REOUIREMENT, 0Ei<M OR CGNOmeN OF ANY CON,RACT OR OTHER DOCUMENT wmi RESPEC, ,0 WHICH THIS CER'T1ACATB MAY eE ISSUED eR w<Y pe,qyAlN, niE INSUIl.lNCE AFFORCED BY THE POUClES OESClOIBED HEREIN IS SUBJECT TO AlL THE TERMS EXC\.USIONS AND CONDmONS OF SUCH PCUCIES. UMlTS SHOWN IMY HAVE BEON REDUCED BY PAID Cl..AlMS. ' I .1 P?UC'I' EFFECTtVE POUCY EQ"rAATION I DATE {MM1DDIYY} CAre (r-tMlOOlYY) TYPe QI' IN$URAH~ " POUCT NUMBER UMrTS GENERAL UABIUTY ~ CO.\CM~L GENE""oVIL L1A91l.lTY I::,':'" I.-.: CLAIMS.'MCe ~ OCCUR .I : OWNER'S' CO""",C;rO"S ?ROT I ~UTOr.'OWLS L.IASIL[T"l' L! IoN'( ..roo L; ALl. OWNGC Al..r.OS ~o SC><eoot.E':lAUTCS ~ HIReD AUTOS . ......: NCN-O\NN'C!).AlJTCS II UI aARADe UAIlIUTY L..i IoN'( .."" 01 : EXCESS UAelUTY f0l UMBRB.L~ FCAM [J1 Qn;;R. THAN UM&REU.A FeR'" WORJItEJU eOll'PEtNSAnoN AHO eMPLOYERS" UASILn'Y 3529i94S 09130/98 GE:'IoJEAALAG;RE"'..ATC I, 1,000,000 ; ?RODUCTS. w.PtOP"GG Is 1,000,000 09/jO/99 ?E.UCN"l. & AIJ" INJURY I. 1.000,000 EACH :C::URReo/CE . 1.000,000 FIRS: !J"MAG: (M.,. 01'1. ft:1J I, 1,000,000 '-lEO EXP (Any ~na DcnonJ I, 10,000 C:).\1IUNEC SINGLE UMft . I, 1,000,000 SOC:l.:-:"lNJURY . 09/30/99 (?cr"~nJ ~Oc:n..YIN.:VIif'l' I ~-==C111 I' ~o?e.m C),I.MAGe . ,; 73164:541 09/30/98 ." ,,' .... 09130/99 AVTO CNLY 0 eAAC':JOENT S O1l1e.~n.!AN AVTO ONL~ '~[~~!:\~~'lit~lr~~; E.4CH 1.cc:CQNT Is AaoREOAT; S e.a.o. OCCURRe..'CE t AwReGA.. I, . . '" 79072:175 09/30/98 2,000,000 2,000,000 ".,; PRO~'!TOAI U tNC1. pARTNEil$.cxe:::uTlV1ii O;:F.cssAA.~ :::xo. CTHER WVA9401217 09/jO/98 09130/99 s. ./ ~~itrrs I I OJMo !r.i!:"Jil':~~~5hm' a EAC< =:CGNT , 1,000.000 aOl..<EIoSE.?CU:YL..-..rr I. 1.000.000 a=--se.~EW>_= . 1.000,000 {: :$CRIPT1ON 0;:: OPERAnONSlLQ;,lnCN$NO(Ic:..EStSPf::-..&L ITEMS :i' -. " :c City or Arcadli1, tu offic:en. ::.gcab o.nd. t:mployces :are IldditioD'Il inJureds :u: n:spccu the I..e::ue A&recmeDt with & work performed by crrl<om per form #40020004. Thi, insunnco is primary &. 'o!l-cDnrrlbutary. REPLACE PREVIO'GS CERIlFICATI: ISSUED. "",,"Eii:""""HOI!o~';),..,~ """".~~".tM:;~~-(l~~' .. '.., ~;lU Dav Notice For Non-P~vmetTt of Premium .~..._.___.~~.=r.. .........\~.~..-.-..........--- , SHOUL.!J AX'( 0,. 1'I1G ADOV& CESCRmeg ,.QUClSS DS CANCa.L~ DEJ:CR.e: T11B EXPUUT1CN gATe TWaECF. nt.s: ISSVlNG CCMP.&.NY WlU. ~MAIL. -1!!- ClAYS WRIT'rEN NOnce TO THe CERTI~Ic.\TE HOLD~ fotAMED TO THe: U9"T, . :ity of Arcadia \ttn: City Clerk :md City AltorDcy :40 West Huntington Drive \rc.:ulia, CA 91007-0000 . A~tJ;IOR=REl'RESENTATM! u....',;:J cJ d7 ~ --' '-2iS;:-L.._-!>.-,-.c-.H:__~"". '.='~~''::l!Sl'''",""", """"_.~ ...-!-: 4.. -~ coR!!. 11/SS),~ jt",~'ailt<".l!"...=._-~.;,j,~:::!:IfC..~,.:~,...."""."-".:r.t.'__:-::.W_::!i'-E-co~iir,1s'" - '. ...... ..... 2097 .' p. !140-02-IJOQ4 Commercial Insurance Coveraore ~) Amendment effec:;;:',e 09/30/98 :.IfiO IS iNSURED: THE: :JHO IS ::NSJRE:D PROVISION !3 Pt'.E.'1Jj~ TO INCU"JDE AS F<N AotlITrONAI.. IN:,",RE!! ir.: FE.:;SCN OR CFiGHNI2.C,TICN DESIGNA I ~ BE!...OU, INCLUDING EUCTED CR APPOINTED ME!1SERS. OFFiC8S AND E:l1?LOYE::S, BUT ONLY WIiH RES?~Cj ,0 THE COMME.:;CIAI.. G~E.~AL LIABiLIiY PRCV!OED BY THIS POLICY HND HRISiNIO CUT OF 11",2:: OF'E."A'l'IONS QF ine: NAMED INSURED IN CONNE:TION ~ITH ~z AG~~ FGR ~ORK FE~FORMED 6~E!N i~~ NAM~ INSURED AND ltiE FE.:;SCN OR Ot<GANlZATION DE;;IG'NA~ EELO:.l. IT .IS F"c1l'li",,'ER AGRE:!l. lriI5 mSURANC'E IS PRIMARY OV8 ~NY OT",,;; COllECitSLE: INSURANC:: ONlY ;.5 RESPECTS 'iHE. DF:RAT10N OF iJ.!E Ntll'!ED INSURED. ;'NY MUNIcIFALrrv RE!::l'IRS TQ Se: N;'HED SY ANY Sf)NTRACT OR' A~.El'IOO, FROVIDED 5UC:~ cr:lNiRACT OR AGrtEHENT IS EXE;:;UT~ ?RIOR TO ANY LOSS, AND ONLY AS fiES?::':,S OPE;lAiIDNS CF CR ON EEHAL" OF iHE NAMa INSUR..c:;J. " ,".' ..: .... .:" ..=:",:. <..' ." .... .... ..' ~ -: I ^ roo c::er te.."T.:S anc conc:ioll:! ro-'i!1 =cl:a::~c. aD:: d l!:..au:ee: l'l:ii'l ! COM , INC. -" C"f ~1.:.!Cbe~ 3~E9 19 410 ?ro~~c~ ~OODRUFF-SA~Y~~ & CO. SAN F?ANCTSCa. CA /"';"r' -~ ~ "-WQ7