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HomeMy WebLinkAbout07 - Wi-Fi Network Across Newport BeachCITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 9 September 26, 2006 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: City Manager's Office Dave Kiff, Assistant City Manager 949/644 -3002 or dkiff@city.newport- beach.ca.us SUBJECT: Request for Proposals (RFP) —Wireless Fidelity ( "Wi -Fi ") Network Across Newport Beach ISSUE: Should the City encourage private sector providers of "Wi -Fi" to submit proposals to create a community -wide "web" of wireless communication facilities? RECOMMENDATION: 1. Authorize the City Manager to issue a Request for Proposals (RFP) for wireless communication facilities citywide in a manner and form substantially similar to the attached. 2. Direct that responses to the RFP be brought back to the Media & Communications Committee for review and recommendation. Background: Following similar actions by cities like Anaheim and Corona, the City's Media and Communications Committee expressed an interest in soliciting firms that may be interested in instal(ing a "Wi -Fi" (Wi -Fi stands for "Wireless Fidelity") network citywide, thus allowing residents, visitors, and businesses to access Internet, e-mail, and other web -based communications wherever they are in the community. Thus far, no specific vendor has approached the City with a proposal. I believe that this reluctance comes in part because, in many cities in Orange County (except Newport Beach and Anaheim), Southern California Edison owns most street lights — to our knowledge, SCE has not broadly authorized Wi -Fi providers to use SCE facilities. Wt-Fi RFP September 26, 2006 Page 2 Here in Newport Beach, we own about 95% of our streetlight system. Vendors of the Wi -Fi service make their money off of monthly or per -use fees paid by the user. However, some other vendors pursue a business model in which they offer the service "free" to users and generate revenue from advertising. Oftentimes the vendors themselves are internet service providers (ISPs), and they may earn revenue by providing both the access points to the Internet and an individual user's internet and e -mail account (as Earthlink or Google operate). Generally, Wi -Fi is a radio - frequency technology that allows laptop or handheld computer users in the vicinity of a Hotspot to access the Web or corporate networks. It is also used generically to refer to an Ethernet technology that provides short- range, high data rate connections between mobile data devices and access points that are connected to a wired network Also in the lexicon is Wi -Max. Wi -Max generally is a newer standard of wireless networking. Wi -Max deployments are similar to a WiFi network, but unlike a Wi -Fi, Wi- Max has a broader distribution area and more capacity. In addition, a Wi -Max system will generally transfer a user to another tower /base station when that station is nearing capacity. Wi -Fi usually ends up having the Wi -Fi user struggle to stay online at a given access point if there is a lot of data traffic at that point. Here is a diagram of the City of Mountain View's Wi -Fi concept, as proposed by Google: !I About this RFP. As has been done in Anaheim, the City of Newport Beach seeks proposals from firms qualified to install and operate a Wi -Fi network across the community. Depending upon the responses, the City is considering entering into an W -Fi RFP September 26, 2006 Page 3 exclusive franchise on our street light poles and traffic signals to create a privately owned and operated broadband digital infrastructure for internet access to help citizens, businesses, schools and community organizations make effective use of wireless technology. With this RFP, we seek the most qualified firm who will: • Implement universal and affordable wireless broadband throughout the City; • Maintain cutting edge technology throughout the term; • Adhere to City's priority of maintaining the aesthetics of public rights -of -way; • Not impinge on the operation of City assets, networks or infrastructure; • Discuss or, if applicable, propose a concept that enhances the Citys ability to manage traffic and transportation systems using the Wi -Fi network; and • Offer a business model resulting in an annual positive fiscal return to the City. Either Wi -Fi or Wi -Max responses will be considered. Also like Anaheim, Newport Beach has previously entered into a wireless digital technology agreement with a company called Metricom to attach wireless radio antennas to street light poles for purposes of providing internet connectivity. The system was ahead of the market and never deployed. Fiscal Impact: Relatively minor, because most Pole Attachment Agreements that have been executed in other cities pay the city a nominal fee for the use of the city's poles. Other cities have sought 'free" access across the Wi -Fi network for governmental communication uses in an attempt to replace costly T -1 lines. Committee Review. The Media and Communications Committee requested that this RFP be issued. Public Notice: This agenda item may be noticed according to the Brown Act (72 hours in advance of the public meeting at which the City Council considers the item). Submitted by: Dave Kiff Assistant City Manager Attachment: Wi -Fi RFP (draft) with draft Franchise Agreement 4 111 -TA October 2, 2006 To: Prospective Franchisees Subiect: Request for Proposals (RFP) — Citywide Wireless Network Franchise Dear Prospective Franchisee: The City of Newport Beach invites your response to this Request for Proposals (RFP) to enter into negotiations with the City which, if successful, would culminate in an agreement to create, manage and operate through an exclusive franchise a City -wide Wireless Fidelity ( "Wi -Fi ")' network that builds on the existing physical assets and aspirations of the City to both provide intemet access to our residents, visitors, and businesses and could improve the City's communication network, including better management of traffic and transportation systems. The City believes that this Wi -Fi initiative presents a significant opportunity for an ISP, telecommunications service provider or networking entity. Anticipated benefits afforded include: • Ability to mount radio antennas on suitable City streetlight and traffic signal infrastructure. • Opportunity to collocate in existing City radio antenna/backhaul enclosure sites. • Pre - approved radio antenna enclosures to mitigate public right - of-way aesthetic concerns. • Cooperation in locating radio antennas where "cobra head" streetlight poles are not convenient and special mounting arrangements will be necessary. The Wi -Fi system will be funded, installed and managed by the firm selected. This RFP is structured as follows: ➢ Background ➢ The City's vision and objectives ➢ Qualifications of prospective franchisees ➢ Responsibilities and role of the franchisee ➢ Responsibilities and role of the City and franchisee ➢ Terms of the franchise to be negotiated ➢ Evaluative criteria and considerations for selection For the purposes of this RFP, the term "WI-F!" is intended to be used interchangeably with "Wi- Max" — proposers who Specialize in W i -Max technologies are encouraged to propose a Wi -Max concept to the City. 1 ➢ Required response to the RFP ➢ Authorization and disclaimer ➢ Attachments ➢ Transmittal of response To maintain competitiveness in the market place and in recognition of the value to our citizens of their investment in streetlight, traffic signal, and fiber infrastructure, this franchise is being offered on an "exclusive" basis. It is believed that the "first to market" will have a significant business advantage, thereby providing the financial incentives to provide optimum benefit to Newport Beach Wi -Fi users. The City's Vision and Objectives The City is seeking an exclusive franchisee that is capable of effectively combining any relevant City assets with new investment to successfully achieve a City -wide Wi -Fi network with minimal or no City technical /financial involvement. The City has sought to structure a franchise arrangement that would provide the necessary incentives and enhance the prospects of success. The intent is to enable the selected firm to rapidly achieve positive returns. Objectives of the franchise would be to evolve a robust Wi -Fi infrastructure that fosters: ➢ Reliable community -wide wireless broadband telecommunications services at reasonable cost to Newport Beach's residents, visitors and businesses; ➢ Increased access to broadband telecommunications services and interconnectivity; ➢ More innovative telecommunications services deployed in full consideration of the aesthetic concerns of facilities installed within the public rights of way and necessity of not disrupting on -going operations; ➢ Broadband wireless telecommunications that do not place a fiscal or ongoing operational burden on the City; and, ➢ Increased access to systems and technologies that would allow the City government to more efficiently manage traffic and transportation systems. In accordance with these objectives, the City expects fair compensation for the use of the City's extensive antenna siting locations on streetlight and traffic signal poles. 2 Qualifications of Prospective Franchisee The City is seeking a franchisee with a demonstrated understanding of managing and operating a complex urban Wi -Fi network, with functional capabilities in network installation, management, administration, operations, and maintenance. The City has a strong preference for a franchisee that is already active in the Southern California market, ideally in proximity to Newport Beach. The franchisee should have a proven track record in establishing effective relationships with other municipalities and potential customers. The franchisee should have a business plan describing how the benefits of the Wi -Fi Network might be extended to business, industrial, and commercial customers, and public, educational and government (PEG) institutions and to Newport Beach residents in general. Proposers are encouraged to consider how such a system could benefit the City and its residents via improving the City's ability to manage traffic and transportation systems efficiently. The franchisee is invited to notify the City of specific arrangements that have been structured in other forums that might apply to the proposed system in Newport Beach, and provide suitable business model alternatives for crafting a mutually- beneficial franchise agreement. Responsibilities and Role of the Franchisee The franchisee is to fulfill all of the requirements for installing, marketing, managing, administering, and operating Wi -Fi (or Wi -Max) network on a long- term basis. The exact role of the franchisee has yet to be determined and, in fact; the prospective franchisees' response and recommendations in this regard will be an important consideration in selection. In this context, the responsibilities that the franchisee would assume are envisioned to be as follows: ➢ The franchisee will have end - to-end responsibility for the Wi -Fi network installation, management and operations. ➢ The franchisee will have sole responsibility for marketing and sales efforts associated with attracting and retaining users of the wireless network, as well as for billing and customer service. It will be required that the wireless network be made available to all prospective Customers on a non - discriminatory basis as to cost and availability. In this regard, capacity will be provided on a first -come, first -serve basis; and no restrictions or quotas on providing capacity are envisioned at this time. The i3 -1 prospective franchisee's commitment to acquiring and retaining users throughout the City will be a consideration in structuring the franchise. An important consideration is overall network capacity utilization and accessibility. The franchisee will need to perform analysis to ensure that, in the interests of all the users, system access over the long term is maximized and that bottlenecks are not created that would preclude effective use of the wireless network by both City operations and general users. This will entail a comprehensive understanding of how additional users will impact the ability to utilize network capacity.Z Responsibilities and Role of the City The City will provide access (at a reasonable fee) to street lights and traffic signals owned by the City. The franchisee is responsible for funding all capital improvements to the network necessary for accommodation of franchisees business expansion objectives /requirements. The City will participate in critical decisions related to capital investments that may require approval of the City Council and operation of the network as it relates to City public safety and operations, however, it is the City's intent to minimize its involvement consistent with a landlord /tenant relationship with franchisee as the accountable point of focus. Because of aesthetic and technical limitations, Newport Beach cannot guarantee full coverage of the City or coverage of any specific area. Terms of Franchise Agreement The City has prepared draft of a Franchise Agreement with suggested terms (included as Attachment 2). The draft should be considered to provide a basis for entering into negotiations, and framing the responsibilities of the franchisee in greater detail. The City welcomes comments from prospective franchisees for modifying the draft franchise. Prospective franchisees are encouraged to submit business plans that are supportive of their responses to the RFP. Evaluative Criteria and Consideration in Selection of Prospective Franchisees The City will establish a review process involving its Media and Communications Committee and full City Council that is based on the following evaluative criteria, whereby the prospective Franchisee demonstrates that it has: ➢ The skills and financial capabilities necessary to design and deploy a City- wide network in a timely fashion. 2 e.g., as successive customers come on -line, capacity and configuration changes will need to be factored into subsequent planning phases to manage network evolution consistent with constraints on locations and equipment. 4 0 ➢ Functional capabilities for managing, operating, and maintaining the network. ➢ Marketing and sales skills necessary for developing the business. ➢ Preferably, a presence in the Southern California area, and can demonstrate its qualifications by its experience in other metropolitan areas, where it is currently active. ➢ Commitment to evolving the network as technologies change, including to a Wi -Max or similar concept. ➢ A proposal or concept for efficient traffic and transportation system management involving the Wi -Fi network that that City would use to assist residents, visitors, and businesses effectively transit through the community. ➢ A vision for evolving a long -term relationship with the City to benefit its constituencies, including business, industrial, commercial, and residential customers. ➢ Intentions of extending the network on its own account to provide end users within the City of Newport Beach network access in surrounding communities and the Southern California region. ➢ Commitment to building out and managing the network in a manner that maximizes service to the public while minimizing the time and cost impacts on the City of Newport Beach organization. ➢ Considered the security of both public and governmental communications in the design and operation of the network. Consideration will be given to the perceived level and degree of the prospective franchisee's responsibility, motivation, dedication to a successful effort, and to its overall capability. The prospective franchisee's history, financial stability, past performance on similar projects, and reputation will also be considered. Consideration will be given to the general level of experience, educational background, and availability of the personnel to be assigned to the project; and to specific experience in the general and technical fields required to successfully implement the Wi -Fi Network project and meet or exceed the requirements set forth in the Draft Franchise Agreement. W Required Response to the RFP Scope - General The City is seeking a Company to enter into a franchise with the City as enumerated above and as provided in the draft franchise agreement. Proposal Preparation and Format Proposal contents shall be typed and arranged or presented in the following sequence to facilitate evaluation: ➢ Cover letter The cover letter should introduce the proposal and indicate to whom all proposal communications should be addressed, including an e-mail address. The cover letter should convey the Company s understanding of the RFP and its degree of interest in entering into negotiations with the City as enumerated above. ➢ Company information This section should describe the Company as a whole, and its corporate structure focusing on organizational entities and subsidiaries that would be responsible for activities that comport with the draft franchise agreement. Specific sections should describe: • Core business of firm, organizational structure and reporting relationships of entities that would be involved with the Wi -Fi Network project. • Subsidiaries and Departments that would be responsible for fulfilling the requirements of the franchise agreement, including an organizational chart of the firm, depicting its parent company, subsidiaries and subdivisions if any, plus relationships to such other companies. Financial standing, including credit reports and financial ratings from major reporting agencies. The prospective franchisee shall provide validated evidence of its financial condition. The last three years of CPA certified annual reports or annual operating statements, and any interim statement supplement completed within the prior six months, is a means of satisfying this requirement. • Presence within Newport Beach and Southern California including communities where services have been provided. It) • General Wi -Fi experience of the Company. • Risks, exposures and concerns that would need to be addressed in negotiations with the City based on the draft franchise agreement. • Other relevant information /analysis. ➢ Company experience germane to Wi -Fi networks Specific projects performed that demonstrate the firm's proven capabilities and ability to implement the Scope of Work, including a list of the projects completed in the last five years, including a system description, the size of each installation, and the name and phone number of a person to contact to provide references and for verification purposes. ➢ Staff and their qualifications • Designated Project Manager with full authority to administer the contract, including a reporting relationship chart illustrating the chain of command from the head of the company to the Project Manager. • Backgrounds and qualifications of Company staff to be assigned to the Wi -Fi Network project, including Title and Relevant Experience. The personnel assigned to the Wi -Fi Network would preferably have prior experience successfully implementing wireless projects of similar scope and complexity. The prospective franchisee is to include the names of all key personnel who are employed and proposed subcontractors who would be assigned to perform services pursuant to entering into a franchise agreement. Only experienced, responsible, and capable people should be involved in the project. ➢ Work plan for implementing draft franchise agreement A high -level project management perspective should be provided that highlights key elements of the implementation process and resources required for fulfillment of project objectives. Considerations should include organization structure; marketing and sales; network planning, management and administration; construction, testing and maintenance; and customer access. The work plan should include a breakdown of these functional areas into specific activities, and explain the process to be used to fulfill each requirement. At a minimum, the Company should address: • Preliminary system design • Build -out schedule (by geographic area and on what time line) • Network management scheme • Customer service protocols 7 C< Community relations efforts Sales and marketing plans ➢ Vision for realization of long term goals Perspectives as to how the benefits of the Wi -Fi Network might be extended to business, industrial, and commercial customers, and PEG institutions and Newport Beach residents (including, if applicable, benefits to the City government relating to improved or less costly intra -City communications and traffic or transportation system management). • Speck. arrangements structured in other forums that might provide suitable business models or a basis for performance incentives to incorporate into the draft franchise. ➢ Other commitments Description of current and future projects that might impinge on resources required for the Wi -Fi Network Project. The prospective franchisee should attest to the availability of key staff to fulfill the needs of the project in a professional and timely manner, and provide assurance that adequate resources will be available, and steps that may be necessary to provide such resources (e.g., transferring personnel, hiring staff, etc.) ➢ A completed FPPC Form 700 (Form 700 is shown as Attachment 3) ➢ Requested documents/data The City has information regarding locations of structures, access points, and performance specifications. Prospective franchisee may list additional relevant documents or data to be requested from the City to assist in negotiations with the City to frame an effective agreement. Other pertinent information • Any additional information the prospective franchisee may want to provide that will strengthen the proposal or be of interest to the City. Authorization and Disclaimer The City will assign a staff person who will coordinate all City activities related to the franchise to ease and expedite franchisees efforts; however, the franchisee shall retain responsibility for ongoing design, development, integration, installation, maintenance, marketing, sales, management, customer relations and performance of the Wi -Fi network. IFr' The City makes no representations as to the adequacy /quantity of appropriate City assets (e.g. cobra head streetlight poles) throughout the City to provide the number of mounting locations potentially desired by franchisee to achieve desired signal coverage. In those instances where franchisee seeks additional mounting locations not adaptable to the approved radio antenna enclosure, then franchisee will need to propose solutions that address the aesthetic concerns of the City. • The City reserves the right to reject any or all proposals, and is not obligated to proceed with negotiations if a suitable prospective Franchisee has not been selected. The prospective franchisee understands and agrees that the City shall have no financial responsibility for any costs incurred in responding to this RFP or any subsequent negotiations. Attachments The following attachments are included in the RFP: Attachment 1 — City Streetlight Map Attachment 2 — Preliminary/Draft Franchise Agreement Attachment 3 — Form 700 (Fair Political Practices Commission) Note: Attachment 3 (Form 700) is required by all entities doing business with municipalities in the State of California. Transmittal of Reply Your sealed proposal is due no later than 1:00 p.m. Tuesday, October 31, 2006. Please send five (5) unbound copies of the complete proposal to the City representative indicated below for evaluation. Late proposals will be returned unopened and will not be considered. Electronic proposals will not be considered. If hand delivered or mailed: City of Newport Beach Office of the City Manager 3300 Newport Boulevard Newport Beach, CA 92658 ATTN.: Wi -Fi RFP If you have any questions, please contact Dave Kiff, Assistant City Manager at 949 -644 -3002 or dkiffecitv.newport- beach.ca.us. t� ATTACHMENT 1 — Streetlight Map (not included in staff report — too large to distribute) 10 A ATTACHMENT 2 — Draft Franchise Agreement 11 l� Draft Franchise Agreement for Wi -Fi Services THIS FRANCHISE AGREEMENT, dated for purposes of identification only this day of 2006, is made and entered into by and between the CITY OF NEWPORT BEACH, a municipal corporation, hereinafter referred to as °NEWPORT BEACH" and FIRM, INC., hereinafter referred to as "WI -FI FIRM." WHEREAS, NEWPORT BEACH requested proposals, offering the use of identified City infrastructure, to accomplish a City -wide wireless network; WHEREAS, following evaluation and negotiation, WIFI FIRM was selected as the most qualified responder; WHEREAS, WIFI FIRM desires to provide its SERVICES in NEWPORT BEACH and, in order to do so desires to mount, install, operate and maintain certain of its equipment in areas approved by NEWPORT BEACH on certain streetlight poles, traffic signal poles connect certain radio antennas to an Internet point of presence, all in accordance with the terms, provisions and conditions contained in the AGREEMENT; and, WHEREAS, NEWPORT BEACH desires to have the SERVICES provided by WIFI FIRM available for use by NEWPORT BEACH and its citizens, businesses and visitors in accordance with the terms, provisions, and conditions contained in this AGREEMENT. NOW, THEREFORE, FOR AND IN CONSIDERATION OF THE MUTUAL PROMISES, COVENANTS AND CONDITIONS HEREIN CONTAINED, THE PARTIES HERETO AGREE AS FOLLOWS: 1 – TERM OF AGREEMENT —Four years with option to extend upon negotiate terms up to two additional three -year periods. 2 – PLANS AND SPECIFICATIONS —WIFI FIRM will obtain from NEWPORT BEACH approvals of the plans and specifications for the PROJECT prior to any installation under this Agreement. 3 – SCHEDULE OF PERFORMANCE —All work to be performed under this AGREEMENT shall be commenced and completed in accordance with the time schedule set forth in EXHIBIT "B ", entitled SCHEDULE OF PERFORMANCE and coordinated through the NEWPORT BEACH representative assigned to this AGREEMENT. 4 – DESCRIPTION OF WORK— During the term of this AGREEMENT, WIFI FIRM is authorized to mount, install, operate, repair and maintain at WIFI FIRM's sole cost and expense, radio antennas within the enclosure identified on EXHIBIT "C ", or such other comparable equipment if approval first obtained from NEWPORT BEACH, on certain streetlight poles or traffic signal poles located within public rights of way 1U Draft Franchise Agreement for WiFt Page 2 throughout NEWPORT BEACH in accordance with the PLANS AND SPECIFICATIONS and SCHEDULE OF PERFORMANCE in order to provide wireless broadband data communication services to NEWPORT BEACH and persons located within the boundaries of NEWPORT BEACH. WIFI FIRM shall not mount, install, operate, repair or maintain any RADIO ANTENNA on any property of NEWPORT BEACH, except as expressly authorized by an in strict compliance with this AGREEMENT. NEWPORT BEACH reserves the right to direct the specific placement of franchisees equipment to address neighborhood, resort or other community aesthetic concerns. If WIFI FIRM intends to provide any service other than the SERVICES specifically described on EXHIBIT A, then WIFI FIRM shall immediately notify NEWPORT BEACH in writing of this intended additional service or change in service. NEWPORT BEACH may either: 1) Accept the proposed additional service or change in service on such terms and conditions as the parties find mutually agreeable in which case EXHIBIT A shall be revised appropriately and be substituted for the then current version of EXHIBIT A; or 2) Require that the SERVICES not be changed but rather continue to be provided as contemplated in the then current version of the EXHIBIT A. WIFI FIRM understands and acknowledges that NEWPORT BEACH may require WIFI FIRM to remove or relocate, and WIFI FIRM shall, at NEWPORT BEACH's direction, remove or relocate upon a request from NEWPORT BEACH at WIFI FIRM's sole cost and expense, any installations whenever NEWPORT BEACH determines that the removal or relocation is needed. Upon completion of each task, installation and phase of work to be performed under this AGREEMENT, WIFI FIRM shall promptly restore all work site areas to a clean and safe condition. Where equipment is collocated, WIFI FIRM shall follow approved procedures of notification and inspection when access is required. Unless NEWPORT BEACH and WIFI FIRM enter into an agreement that provides otherwise, upon the expiration, completion or earlier termination of this AGREEMENT, WIFI FIRM shall promptly, safely and carefully remove all radio antennas installed from all NEWPORT BEACH property and return NEWPORT BEACH property to the condition in which the property existed immediately prior to WIFI FIRM's installation. WIFI FIRM acknowledges and agrees that they bear all risk of loss or damage of its equipment and materials installed on NEWPORT BEACH property or in NEWPORT BEACH's public rights of way. NEWPORT BEACH makes no guarantee of service (e.g. electrical power, availability of structures). 5 – SPECIAL SITE ISSUES —Due to the topography of certain areas of the City and infrastructure not necessarily suited to the attachment of the approved radio antenna enclosure, the parties agree that: 1) Areas of concern will be identified as part of the Initial PLANS AND SPECIFICATIONS; and, 2) WIFI FIRM will propose at their sole expense solutions that provide a safe and aesthetic solution for City consideration and approval. 6 – MAXIMUM NUMBER OF RADIO ANTENNAS PER SQUARE MILE — To avoid any over - saturation of radio antenna enclosures in any one particular area of the City, franchisee will not install more than enclosures per square mile. 7 – PERMITS, FEES AND DEPOSITS —WIFI FIRM shall: \1 Draft Franchise Agreement for K1Fi Page 3 1) Obtain all applicable permits as are required. 2) Pay to NEWPORT BEACH all applicable deposit fees, permit fees and other fees or amounts required. 3) Pay an annual attachment fee of $_(not less than $100)_ for the use of each and every NEWPORT BEACH light pole equipped exclusively with a WIFI FIRM radio antenna enclosure; $_(not less than $60)_ for the use of each and every NEWPORT BEACH light pole where WIFI FIRM and NEWPORT BEACH equipment is collocated; $ _(not less than $1,000)_ for the use of each and every traffic signal pole where WIFI FIRM radio antenna is located and utilizes NEWPORT BEACH fiber to connect to a central intemet point of presence; and, an annual flat fee of $_(not less than typical for market)_ for space and services within NEWPORT BEACH's data center. Such fees shall be adjusted annually upward by CPI ... Notwithstanding the foregoing, in lieu of an annual fee, NEWPORT BEACH and WIFI FIRM may agree to substitute network access. 8 —WORK STANDARDS —WIFI FIRM agrees to: 1) Work safely at all times. 2) Be familiar with NEWPORT BEACH specifications. 3) Organize work in a manner that results in the least amount of traffic disruption, as directed by the Department of Public Works. 4) Not perform excavation, trenching or any other digging activity without the City's expressed written permission. 5) Promptly repair or replace damaged property. 6) Follow direction of NEWPORT BEACH if it is determined that public health, safety or welfare requires a modification from the PLANS AND SPECIFICATIONS or SCHEDULE OF PERFORMANCE. 7) Notify property owners and businesses prior to commencement of work that can be reasonably anticipated to adversely affect the quiet enjoyment of their property. 8) WIFI FIRM acknowledges that NEWPORT BEACH has made no warranties or representations regarding the fitness or suitability of any of NEWPORT BEACH's property for the installation of WIFI FIRM's equipment or for this PROJECT and that any performance of work or costs incurred by WIFI FIRM or provision of SERVICES contemplated under this AGREEMENT by WIFI FIRM is at WIFI FIRM's sole risk. 9) Conform to all requirements of the California Public Utilities Commission General Order 95 while working on or in the vicinity of overhead power lines. 9 — COLLOCATION OF EQUIPMENT— NEWPORT BEACH and WIFI FIRM agree that one of the inducements to WIFI FIRM deploying their network in NEWPORT BEACH is the potential of collocating radio antennas within NEWPORT BEACH deployed radio antenna enclosures. Further, that the expansion of the broadband wireless network will provide opportunities to better serve NEWPORT BEACH public safety and operations. Therefore, the parties agree to work cooperatively to maximize the synergistic benefits associated with collocation of equipment and any network components already deployed by NEWPORT BEACH but no obligation is implied. 10 — PAYMENT OF TAXES —WIFI FIRM agrees to pay Business License tax. Draft Franchise Agreement for WIR Page 4 11 — POSSESSORY INTEREST TAX — WIFI FIRM agrees to pay any and all taxes which may be levied and expressly indemnifies NEWPORT BEACH from liability for payment of such taxes. 12 — INDEPENDENT CONTRACTOR — It is hereby understood that WIFI FIRM, in the performance of the work and SERVICES agreed to be performed, shall act as and be an independent contractor and not an agent or employee of NEWPORT BEACH. 13 — ASSIGNABILITY— This agreement shall not be assigned by WIFI FIRM without the express written consent of NEWPORT BEACH. 14 — INDEMNIFICATION — WIFI FIRM shall protect, defend, indemnify and hold harmless NEWPORT BEACH as required by NEWPORT BEACH's Risk Manager. 15 — INSURANCE — Without limiting NEWPORT BEACH's right to indemnification, WIFI FIRM shall, at its own expense, maintain throughout the term of this agreement insurance coverage as directed by the City's Risk Manager. 16 — SECURITY INSTRUMENTS —prior to the commencement of any work under this AGREEMENT, WIFI FIRM shall furnish or cause to be furnished to NEWPORT BEACH a good and sufficient bond or other equivalent instrument as approved by NEWPORT BEACH's Risk Manager, securing the faithful performance of all work, construction and installation required. 17 — NONDISCRIMINATION — WIFI FIRM represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. 18 — TERMINATION —this AGREEMENT may be terminated by either party upon thirty days prior written notice upon the default of any material covenant or term hereof by the other party, which default is not cured within thirty days of receipt of written notice. 19 — GOVERNING LAW — The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange. 20 — COMPLIANCE WITH LAWS — Consultant shall at its own cost and expense comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, all work prepared by Consultant shall conform to applicable City, county, state and federal laws, rules, regulations and permit requirements and be subject to approval of the Project Administrator and City. 21 — INTEGRATED CONTRACT — This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. 6 Draft Franchise Agreement for KKR Page 5 22 — CONFLICTS OR INCONSISTENCIES — In the event there are any conflicts or inconsistencies between this Agreement or any other attachments attached hereto, the terms of this Agreement shall govern. 23 — INTERPRETATION — The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of the Agreement or any other rule of construction which might otherwise apply. 24 — AMENDMENTS —This Agreement may be modified or amended only by a written document executed by both Consultant and City and approved as to form by the City Attorney. 25 — SEVERABILITY — If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 26 — WAIVER — A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character. 27 — BOOKS AND RECORDS WIFI FIRM shall maintain any and all records as agreed to by the parties and as required by law. 28 — CONFLICT OF INTEREST —WIFI FIRM shall avoid all conflicts of interest or appearance of conflict of interest in the performance of this AGREEMENT. 29 — EXCLUSIVE USE OF PROPERTY AND RESERVATION OF RIGHTS — This AGREEMENT grants WIFI FIRM the exclusive right during the term to use City streetlight and traffic signal poles to mount radio antennas in NEWPORT BEACH approved enclosures for public use in connection with creating and maintaining a broadband wireless internet network and to be recognized as NEWPORT BEACH's 'Wireless Connection' NEWPORT BEACH and WIFI FIRM agree that nothing contained in or contemplated by this AGREEMENT is intended to confer, convey, create or grant to WIFI FIRM any perpetual real property interest in any NEWPORT BEACH property or in any of NEWPORT BEACH's public rights of way. 30 — CITY PROJECT MANAGEMENT COST RECOVERY —WIFI FIRM shall reimburse NEWPORT BEACH at an hourly rate of $ for services of City staff /City Project Coordinator as agreed to by the parties to expedite all aspects of the project. 31 — NOTICES — Notices shall be provided in writing to the following person(s) and address(es): To the City of Newport Beach: City Manager's Office City of Newport Beach 3300 Newport Boulevard 20 Draft Franchise Agreement for MR Page 6 Newport Beach, CA 92658 949 -644 -3020 (fax) To WIFI FIRM: 32 – MOST FAVORED JURISDICTION — Should WIFI FIRM enter into a similar agreement with another jurisdiction containing financial benefits for the jurisdiction which are substantially superior to those in this AGREEMENT, WIFI FIRM and NEWPORT BEACH shall modify this AGREEMENT to incorporate the same or similar benefits. WIFI FIRM shall notify NEWPORT BEACH within thirty days of entering into such superior agreement. The benefits of such superior agreement shall be made available to NEWPORT BEACH retroactive to the date WIFI FIRM entered into such superior agreement with such other jurisdiction. 33 – TECHNOLOGY CURRENCY — Should broadband digital wireless technology migrate such that WIFI FIRM's network in NEWPORT BEACH is no longer state -of- the -art, then such result will be grounds for not extending the Term. 34 – DISPOSITION OF EQUIPMENT IN THE EVENT OF BREACH OR DISSOLUTION. WIFI FIRM shall be solely responsible for the disposition and removal of equipment in the event of a breach of this Agreement or a dissolution of the WIFI FIRM. 35 – REQUIRED EXHIBITS • Exhibit A— Network Description [provided by WIFI FIRM] • Exhibit B— Schedule of Performance [provided by WIFI FIRM to accomplish City -wide coverage within initial Term of agreement] • Exhibit C— Approved Radio Antenna Enclosure [recognizes requirement to use approved radio antenna enclosure] • Exhibit D —Fees and Charges Applicable to Work Within the Public Rights - of -Way [standard fees and charges approved by City Council] IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: CITY OF NEWPORT BEACH, A Municipal Corporation City Attorney Mayor for the City of Newport Beach for the City of Newport Beach ATTEST: CONSULTANT: By: By:. LaVonne Harkless, City Clerk 2d ATTACHMENT 3 - Form 700 12 ,y 2005/2006 FORM 700 Statement of Economic Interests a public document Fair Political Practices Commission 428 J Street, Suite 620 • Sacramento, CA 95814 Toll -Free Advice Line: 866 ASK -FPPC • (866) 275.3772 Telephone: (916) 3225660 www.fppc.ca.gov 123 STATEMENT OF ECONOMIC INTERESTS Date Received OlWdel Use Onry COVER PAGE Please type or print in ink A Public Document NAME (LAST) (FIRST) (MIDDLE) DAYTIME TELEPHONE NUMBER MAILING ADDRESS STREET CITY STATE ZIP CODE OPTIONAL: FAX I E-MAIL ADDRESS (May use business address) 1. Office, Agency, or Court Name of Office, Agency, or Court: Division, Board, District, if applicable: Your Position: • If filing for multiple positions, list additional agency(ies)I position(s): (Attach a separate sheet if necessary.) Agency: Position: 2. Jurisdiction of Office (Check at least one box) ❑ State ❑ County of ❑ City Of ❑ Mufti- County ❑ Other 3. Type of Statement (Check at least one box) ❑ Assuming Office/Initial Date:�� ❑ Annual: The period covered is January 1, 2005, through December 31, 2005. -or- 0 The period covered is through December 31, 2005. ❑ Leaving Office Date Left: (Check one) Q The period covered is January 1, 2005, through the date of leaving office. -or- 0 The period covered is _! —f_ through the date of leaving office. ❑ Candidate 4. Schedule Summary • Total number of pages including this cover page: _ • Check applicable schedules or "No reportable interests." I have disclosed interests on one or more of the attached schedules: Schedule A -1 ❑ Yes – schedule attached investments (Less than 10% ownersho) Schedule A -2 ❑ Yes – schedule attached Investments (10% or greater Ownership) Schedule B ❑ Yes – schedule attached Real Property Schedule C ❑ Yes – schedule attached Income, Loans, B Business Positions ancome other than GIHs and Travel Payments) Schedule D ❑ Yes – schedule attached Income – Gifts Schedule E ❑ Yes – schedule attached Income – Tmvel Payments -or- ❑ No reportable interests on any schedule S. Verification I have used all reasonable diligence in preparing this statement. I have reviewed this statement and to the best of my knowledge the information contained herein and in any attached schedules is true and complete. I certify under penalty of perjury underthe laws of the State of California that the foregoing is true and correct. Date Signed (month, day, year) Signature (File the originally signed Matamenl mU your sing official.) FPPC Form 700 (200&2006) FPPC Toll -Free Helpline: 8661ASK -FPPC 2q