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HomeMy WebLinkAboutSpectrum Lease AgrementFCC Notification for Spectrum Manager Lease Ownership Disclosure Information and Spectrum Lease Agreement ( "Agreement ") Agreement This Agreement contains two parts: Part (1) is The FCC Notification for Spectrum Manager Lease, to be filed with the FCC by Sensus on behalf of the Customer, coupled with Ownership Disclosure Information required for the FCC lease and Part (2) is a Spectrum Lease Agreement between Sensus as Lessor and Customer as Lessee. Together, these two parts create the Agreement. The number of pages in this Agreement is indicated below, and Customer represents that it has received, reviewed, and completed the entire Agreement. By their signatures below, the parties agree to the terms and conditions set forth in this Agreement and the parties have caused this Agreement to be executed by their duly authorized representatives as of the day and year written below. Sensus USA Inc. & Sensus Spectrum, LLC Customer: (together, "Sensus" City of Gilroy, CA Sensus USA I By: By: Name: Jo n St fford Name: Tom Haglund Title: E4cyZve Vice P sident Title: City Administrator Date: 0 Date: Sensus Spectrum, LC Customer contact person for FCC filin s: By: Name: Dan Aldriqde Phone: 408 - 846 -0271 Name: Colin Fla Title: Vice President & General Counsel Email: daldridge (d-)ci.gilroy.ca.us Customer FRN: Date: �� Customer Tax ID: sEnsus Page 1 of 12 Fil 0 0 0 R5 Part 1: Notification for Spectrum Manager Lease and Ownership Disclosure In order for Sensus to apply to the FCC on the Customer's behalf for a spectrum manager lease, Customer must complete the information below in boxes one (1) through eight (8) and certify via authorized signature the statements in box nine (9). Customer's signature will indicate that Customer authorizes Sensus to file the spectrum manager lease notification on FCC Form 608 with the Customer as spectrum Lessee, as well as ownership disclosure information on FCC Form 602. Customer / Lessee Information Customer /Lessee Name: City of Gilroy Attention To: Tom Haglund Name of Real Party in Interest: City of Gilroy Street Address: 7351 Rosanna St. City: Gilroy State: CA Zip: 95020 Phone: 408 - 846 -0203 Fax: 408 - 846 -0288 Email: daldridge @ci.gilroy.ca.us Is Customer contact information same as above? [-]Yes ®No (If No, complete box 2 below) Additional Customer /Lessee Contact Information Company Name: City of Gilroy Attention To: Dan Aldridge Street Address: 613 Old Gilroy St. City: Gilroy State: CA Zip: 95020 Phone:408- 846 -0271 Fax: 408- 846 -0288 Email: daldridge @ci.gilroy.ca.us If known, Customer's FCC Registration Number (FRN): Customer Tax ID: Customer /Lessee is a(n) (Select one): []Individual I ❑ Unincorporated Association I ❑Trust ®Government Entity I []Corporation I ❑ Limited Liability Company I ❑General Partnership ❑Limited Partnership I ❑Limited Liability Partnership I ❑Consortium I ❑ Other Individual Contact For FCC Matters Please designate one individual (the Director of Public Works or similar person) who is responsible to the FCC for the operation of the FlexNet radio system. This person would need to obtain his or her own personal FRN (FCC Registration Number) by going to the link below and completing the individual FRN registration. Name: Dan Aldridge Title: Operations Supervisor/Water Email:daldridge @ci.gilroy.ca.us Phone: 408 - 846 -0271 Personal FRN: Link for obtaining personal FRN: hops: // apps. fcc .govicoresWeb /regEntityType.do Page 2 of 12 ioi ❑8 Ownership Disclosure Information If Customer /Lessee is a government entity, list the names of the Mayor and all Council Members below, as well as verify citizenship and ownership interests in any entity regulated by the FCC. Such ownership must be disclosed where a mayor /council member owns 10% or more, directly or indirectly, or has operating control of any entity subject to FCC regulation. If any answer to Ownership question is Yes, or any answer to Citizenship question is No, provide an attachment with further explanation. _ US Citizen? Ownership Disclosure? Mayor: Don Gage ®Yes ❑No ❑Yes ❑No Council Member: Tern Aulman ®Yes [-]No ❑Yes ❑No Council Member: Cat Tucker ®Yes ❑No ❑Yes ❑No Council Member: Peter Leroe -Munoz ®Yes ❑No ❑Yes ❑No Council Member: Dion Bracco ®Yes ❑No ❑Yes ❑No Council Member: Perry Woodward ®Yes ❑No ❑Yes ❑No Council Member: Peter Arellano ®Yes ❑No ❑Yes ❑No Council Member: ❑Yes [-]No ❑Yes ❑No Council Member: ❑Yes ❑No ❑Yes ❑No Council Member: ❑Yes ❑No ❑Yes []No Alien Ownership Questions (if the answer is Yes, provide an attachment explaining the circumstances 1) Is the Customer /Lessee a foreign government or the representative of any foreign []Yes ®No -government? Basic Qualification Information 1) Has the Customer or any party to this application had any FCC station authorization, license, or construction permit revoked or had any application for an initial, modification or renewal of FCC station authorization, license or construction []Yes ®No permit denied by the Commission? 2) Has the Customer or any party to this filing, or any party directly or indirectly controlling the Customer or any party to this filing ever been convicted of a felony by ❑Yes ®No any state or federal court? 3) Has any court finally adjudged the Customer or any party directly or indirectly controlling the Customer guilty of unlawfully monopolizing or attempting to unlawfully monopolize radio communication, directly or indirectly, through control of ❑Yes ®No manufacture or sale of radio apparatus, exclusive traffic arrangement, or any other means or unfair methods of competition? Page 3 of 12 F91 Customer /Lessee Certification Statements 1) The Customer /Lessee agrees that the Lease is not a sale or transfer of the license itself. ®Yes 2) The Customer /Lessee acknowledges that it is required to comply with the Commission's Rules and Regulations and other applicable law at all times, ®Yes and if the Customer /Lessee fails to so comply, the Lease may be revoked, cancelled, or terminated by either the Licensee or the Commission. 3) The Customer /Lessee certifies that neither it nor any other party to the Application /Notification is subject to a denial of Federal benefits pursuant to Section 5301 of the Anti -Drug Abuse Act of 1988, 21 U.S.0 § 862, because ®Yes of a conviction for possession or distribution of a controlled substance (See Section 1.2002(b) of the rules, 47 CFR § 1.2002(b), for the definition of "party to the application" as used in this certification. 4) The Customer /Lessee hereby accepts Commission oversight and enforcement consistent with the license and lease authorization. The Lessee acknowledges that it must cooperate fully with any investigation or inquiry conducted either by the Commission or the Licensee, allow the Commission HYes or the Licensee to conduct on -site inspections of transmission facilities, and suspend operations at the direction of the Commission or the Licensee and to the extent that such suspension of operation would be consistent with applicable Commission policies. 5) The Customer /Lessee acknowledges that in the event an authorization held by a Licensee that it has association with it a spectrum leasing arrangement that is the subject of this filing is revoked, cancelled, terminated, or otherwise ceases to be in effect, the Customer /Lessee will have no ®Yes continuing authority to use the leased spectrum and will be required to terminate its operations no later than the date on which the Licensee ceases to have any authority to operate under the license, unless otherwise authorized by the Commission. 6) The Customer /Lessee agrees the Lease shall not be assigned to any entity that is not eligible or qualified to enter into a spectrum leasing ®Yes under the Commission's Rules and Regulations. -arrangement 7) The Customer /Lessee waives any claim to the use of any particular frequency or of the electromagnetic spectrum as against the regulatory ®Yes power of the United States because of the previous use of the same, whether by spectrum lease or otherwise. he Cust omer /Lessee certifies that it is not in default on any payment for E8c mission licenses and that it is not delinquent on any non -tax debt owed ®Yes n federal agency. Page 4 of 12 The Customer /Lessee certifies that all of its statements made in this Application /Notification and in the schedules, exhibits, attachments, or documents incorporated by reference are material, are part of this Application /Notification, and are true, complete, correct, and made in good faith. The Customer /Lessee shall notify Sensus in writing in the event any information supplied on this form changes. Type or Printed Name of Party Authorized to Sign First Name: Tom MI: Last Name: Haglund Suffix: Title: City Administrator Customer Name: City of Gilroy Sig ure Date: t'D(-?o((� FAILURE TO SIGN THIS APPLICATION MAY RESULT IN DISMISSAL OF THE APPLICATION AND FORFEITURE OF ANY FEES PAID. WILLFUL FALSE STATEMENTS MADE ON THIS FORM OR ANY ATTACHMENTS ARE PUNISHABLE BY FINE AND /OR IMPRISONMENT (U.S. Code, Title 18, Section 1001) AND /OR REVOCATION OF ANY STATION LICENSE OR CONSTRUCTION PERMIT (U.S. Code, Title 47, Section 312(a)(1)) AND /OR FORFEITURE (U.S. Code Title 47, Section 503). [Rest of this page intentionally left blank.] Page 5 of 12 Part 2: SPECTRUM LEASE AGREEMENT Background A. Customer has bought or will buy or use FlexNet equipment manufactured by Sensus; B. Sensus is leasing spectrum to Customer to operate the FlexNet equipment; C. The spectrum that Sensus is leasing is authorized by Sensus' FCC License(s); and D. Sensus is leasing spectrum to Customer in the area where FlexNet equipment will be operated (the "Service Area "). Agreement 1. Sensus hereby grants to Customer and Customer accepts a spectrum manager lease ( "Lease ") over the frequencies of the FCC License and solely within Customer's Service Area. (The frequencies of the FCC License within Customer's geographic Service Area are called the "Leased Spectrum "). As consideration, $900 will be partitioned from the Customer's existing per base station payment to Sensus for maintenance service and is hereby allocated to spectrum lease pursuant to this Agreement. 2. Sensus will file with the Federal Communications Commission (FCC) a FCC Form 608, notification /application for a long term spectrum manager lease. This Lease becomes effective when the FCC receives the notification. 3. In order to do the FCC lease application, Customer will: a. Complete and sign the representations on pages two (2) through four (4) of this Agreement such that Customer demonstrates it qualifies for a spectrum lease under FCC rules. Customer's signature will indicate that Customer authorizes Sensus to file the spectrum manager lease notification on FCC Form 608 with the Customer as spectrum lessee, the ownership disclosure information on FCC Form 602, and any renewals that the Customer has reviewed. b. Give Sensus the coordinates of the boundaries of Customer's Service Area or, alternatively, approve Sensus' estimation of the same. c. In the event that Customer does not already have one, Customer hereby authorizes Sensus to apply on Customer's behalf and obtain for Customer a Federal Registration Number (FRN, the FCC's unique identifier for each licensee) and shall supply Sensus with Customer's Taxpayer Identification Number (TIN). d. Provide any other information or other cooperation reasonably necessary for the Parties to perform as set forth herein. 4. Customer may transmit or receive over the Leased Spectrum only in the Service Area and only using FlexNet equipment manufactured by Sensus and used in accordance with Sensus' specifications. Customer may use the Leased Spectrum only to read and direct meters in support of Customer's primary utility business or any other operation approved by Sensus in writing. Without limiting the foregoing, Customer is prohibited from reselling, subleasing or sublicensing the Leased Spectrum or from transmitting voice communications over the Leased Spectrum. 5. Unless terminated earlier (because for example Customer stopped using the FlexNet equipment), this Lease will have the same term as the FCC license. If Customer is operating in compliance with this Agreement and Customer's underlying agreement with Sensus and is current on any payments owed to Sensus, when the FCC License renews, Sensus will apply to the FCC to renew this Lease and Utility authorizes Sensus to do so. 6. The Lease will terminate: (a) two months after Customer stops transmitting with FlexNet equipment manufactured by Sensus; (b) upon termination, revocation or expiration of the FCC License; or (c) upon Customer's breach of this Agreement or Customer's underlying agreement with Sensus, following Sensus' notification of same giving Customer sixty (60) days in which to cure the breach. 7. The following FCC requirements apply to this Agreement a. Pursuant to 47 CFR 1.9040(a); Page 6 of 12 L Customer must comply at all times with applicable FCC rules. This Agreement may be revoked by Sensus or the FCC if Customer fails to so comply; fl. If the FCC License is terminated, Customer has no continuing right to use the Leased Spectrum unless otherwise authorized by the FCC; iii. This Agreement is not an assignment, sale or other transfer of the FCC License; iv. This Agreement may not be assigned except upon written consent of Sensus, which consent may be withheld in its discretion; and v. In any event, Sensus will not consent to an assignment that does not satisfy FCC rules. b. Pursuant to the standards set forth in 47 CFR 1.9010, Sensus retains de facto control over the applicable radio facilities, including that,. i. Sensus will be responsible for Customer's compliance with FCC policies and rules. Sensus represents and warrants that it has engineered the FlexNet equipment and accompanying software and other programs to comply with FCC rules. Customer will operate the FlexNet equipment solely in accordance with Sensus' specifications. Sensus retains the right to inspect Customer's radio operations hereunder and to terminate this Agreement or take any other necessary steps to resolve a violation of FCC rules, including to order Customer to cease transmission. Sensus will act as spectrum manager in assigning spectrum under the FCC License so as to avoid any harmful interference or other violation of FCC rules. Sensus will be responsible for resolving any interference complaints or other FCC rule violations that may arise; and H. Sensus will file any necessary FCC forms or applications and Customer agrees reasonably to assist Sensus with such filing by providing any necessary information or other cooperation. Sensus will otherwise interact with the FCC with respect to this Agreement, the FCC License or FlexNet equipment. 8. Customer agrees to report to Sensus promptly, and in no event later than 72 hours afterward, any incident related to the Leased Spectrum, including where Customer experiences harmful interference, receives a complaint or other notice of having caused harmful interference, or receives any type of communication from the FCC or other government agency regarding radio transmission. 9. Lessee shall not disclose any Confidential Information to any third party. "Confidential Information" means all non - public information of Sensus, including financial information, AMI system performance, AMI system architecture and design, AMI system software, and all trade secrets and proprietary information of Sensus. 10. The Parties agree to indemnify and hold each other harmless as follows: a. In the event that the FCC License is revoked, cancelled or terminated, or the FCC or other government agency otherwise mounts an enforcement action with respect to radio operation under this Agreement, and Customer has been in full compliance with this Agreement, Customer's underlying agreement with Sensus, and Sensus' specifications, and is current on any payments owed to Sensus, Sensus will indemnify and hold Customer harmless for all liabilities, claims, costs, damages, fines forfeitures and expenses arising out of such government action including, where necessary, Sensus will use commercially reasonable efforts to migrate Customer to other suitable spectrum. b. Customer will 'indemnify Sensus USA Inc and Sensus Spectrum LLC, its officers, directors employees and agents from all liabilities, claims, costs, damages, fines forfeitures and expenses arising out of Customer's breach of this Agreement. 11. The Parties agree to the following Limitation on Liability: a. Sensus' liability in any and all causes of action arising under, out of or in relation to this Agreement, its negotiation, performance, breach or termination (collectively, "Causes of Action ") shall be limited to direct damages. Except as provided in paragraphs 7.b. and 10.a, above, Sensus shall not be liable for any indirect, incidental, special or consequential damages. This is so whether the Causes of Action are in tort, including, without limitation, negligence or strict liability, in contract, under statute or otherwise. The limitations on liability set forth in this Agreement are fundamental inducements to Sensus entering into this Agreement. They apply unconditionally and in all respects. They are to be interpreted broadly so as to give Sensus the maximum protection permitted under law. Page 7 of 12 b. This paragraph 11 is not intended to limit Sensus' liability arising from the underlying agreements with the Customer, specifically, the Statement of Work entered in to in 2010 and the Customer Acceptance Plan entered in to in 2010. Furthermore, the parties do not intend to limit either party's indemnification rights or obligations provided in paragraph 10. 12. This Agreement shall be governed by and construed in accordance with the laws of the State of California without regard to the conflict of laws provisions of any jurisdiction. The exclusive jurisdiction and venue with respect to any and all disputes arising hereunder shall be in state and federal courts located in Santa Clara County, California. [Rest of this page intentionally left blank.] Page 8 of 12 EXHIBIT A FCC LICENSE(S) AND LICENSED FREQUENCIES Cail gnu °Market E' i Chan Im arke #�Narne aNumber _. .. Bloc W _ y KNkk.,•,`�R,' NWA255 N3 U.S. and Possessions ` xx p 91M xidI,N1"�lli cG c 118 ull oil Page 9 of 12 EXHIBIT B GEOGRAPHIC BOUNDARIES OF UTILITY'S SERVICE AREA Channels (Base /Remote Frequency) Locations (Coordinates) 37 02 53.4 N, 121 35 21.6 W 901.100- 901.150 MHz uplink, 37 01 58.9 N, 121 34 52.9 W 940.100- 940.150 MHz downlink 37 02 03.9 N, 121 34 37.9 W 37 02 00.9 N, 121 34 36.3 W 37 02 03.4 N, 121 34 28.8 W 37 02 25.8 N, 121 34 40.2 W 37 02 29.2 N, 121 34 38.6 W 37 02 33.1 N, 121 34 40.3 W 37 02 35.8 N, 121 34 40.9 W 37 02 36.6 N, 121 34 38.1 W 37 02 14.9 N, 121 34 27.9 W 37 02 17.3 N, 12134 19.2 W 37 02 20.1 N, 12134 20.7 W 37 02 21.4 N, 121 3416.8W 3701 55.7 N, 121 3401.7W 37 01 52.4 N, 121 34 10.4 W 37 01 45.2 N, 121 34 06.2 W 37 01 48.6 N, 121 33 57.4 W 37 01 28.5 N, 121 33 45.5 W 37 01 34.5 N, 121 33 29.7 W 37 01 42.2 N, 121 33 34.1 W 37 0147.1 N, 121 33 21.1 W 37 01 37.1 N, 121 33 15.2 W 37 01 26.2 N, 121 33 43.2 W 37 00 51.5 N, 121 33 16.3 W 37 00 44.3 N, 121 33 25.5 W 37 00 39.8 N, 121 33 21.7 W 37 00 41.5 N, 121 33 16.1 W 37 00 34.3 N, 12133 10.3 W 37 00 34.3 N, 121 33 07.2 W 37 00 23.4 N, 121 32 29.1 W 37 00 09.5 N, 121 32 04.2 W 37 00 00.2 N, 121 32 08.5 W 36 59 54.2 N, 121 32 07.0 W 36 59 54.9 N, 121 32 20.2 W 36 59 39.4 N, 121 32 12.9 W 36 59 48.8 N, 121 32 24.2 W 36 59 26.5 N, 121 33 03.5 W 36 59 05.8 N, 121 32 47.4 W 36 59 11.7 N, 121 32 25.8 W 36 59 26.7 N, 12131 52.3 W 36 59 39.2 N, 12131 59.0 W 36 59 42.4 N, 12131 48.8 W 36 59 19.8 N, 121 31 28.5 W 36 59 14.0 N, 121 31 38.0 W Page 10 of 12. 36 59 07.6 N, 121 31 28.7 W 36 58 43.1 N, 121 31 07.2 W 36 58 34.2 N, 121 31 23.5 W 36 58 42.2 N, 121 31 30.6 W 36 58 30.7 N, 121 31 43.0 W 36 58 40.9 N, 121 31 55.0 W 36 58 44.9 N, 121 3149.8 W 36 58 56.9 N, 12132 00.3 W 36 58 22.9 N, 121 32 54.5 W 36 58 26.2 N, 121 32 54.6 W 36 58 28.7 N, 121 32 59.9 W 36 58 34.6 N, 121 33 08.2 W 36 58 33.5 N, 121 33 15.5 W 36 58 33.9 N, 121 33 19.1 W 36 58 35.8 N, 121 33 23.0 W 36 58 55.8 N, 12133 31.8 W 36 59 06.6 N, 121 33 34.6 W 36 59 19.8 N, 121 33 40.9 W 36 59 25.5 N, 121 33 41.7 W 36 59 22.4 N, 121 33 52.9 W 36 59 22.5 N, 121 34 04.2 W 36 59 27.8 N, 121 34 06.8 W 36 59 29.7 N, 121 34 09.0 W 36 59 30.8 N, 121 34 15.7 W 36 59 28.3 N, 121 34 23.6 W 36 58 58.1 N, 121 34 22.4 W 36 58 34.9 N, 12134 06.9 W 36 58 37.0 N, 121 34 22.3 W 36 58 39.6 N, 12134 28.0 W 36 58 40.3 N, 121 34 34.8 W 36 58 45.7 N, 121 34 44.6 W 36 58 20.4 N, 121 35 11.8 W 36 59 33.6 N, 121 37 25.9 W 36 59 33.4 N, 121 38 23.0 W 36 59 54.3 N, 121 38 35.4 W 36 59 59.8 N, 121 38 23.1 W 37 00 11.7 N, 121 38 18.2 W 37 00 14.0 N, 121 38 14.3 W 37 00 14.7 N, 121 37 57.7 W 37 00 28.6 N, 121 37 52.8 W 37 00 28.1 N, 121 37 44.7 W 37 00 42.2 N, 121 37 47.9 W 37 00 45.7 N, 121 37 55.2 W 37 00 47.8 N, 121 37 54.0 W 37 00 48.3 N, 121 37 44.5 W 37 00 43.1 N, 121 37 36.7 W 37 00 49.8 N, 121 37 36.2 W 37 00 56.2 N, 121 37 41.5 W 37 01 14.4 N, 121 37 41.6 W 3701 14.6 N, 121 3725.3W 37 01 39.9 N, 121 37 25.3 W 37 0140.5 N, 121 36 59.2 W 37 02 06.2 N, 121 36 59.6 W Page 11 of 12 37 02 07.3 N, 121 36 16.5 W 37 02 23.6 N, 121 36 17.2 W 37 02 15.3 N, 121 35 49.5 W 37 0143.7 N, 12.1 35 52.4 W 37 0143.7 N, 121 35 39.8 W 37 01 39.9 N, 121 35 39.8 W 37 01 39.0 N, 121 35 29.4 W 37 01 36.4 N, 121 35 25.2 W 37 01 28.9 N, 121 35 24.7 W 37 01 29.1 N, 121 35 14.6 W 37 01 36.8 N, 121 35 14.8 W 37 01 56.4 N, 121 35 19.1 W 37 01 56.4 N, 121 35 25.7 W 37 02 04.1 N, 121 35 26.5 W 37 02 07.2 N, 121 34 59.1 W 37 02 17.7 N, 121 35 04.5 W 37 02 15.4 N, 121 35 15.1 W 37 02 26.9 N, 121 35 20.9 W 37 02 28.9 N, 121 35 10.8 W 37 02 47.5 N, 121 35 20.5 W 37 02 42.1 N, 121 35 45.9 W l 37 02 47.6 N, 121 35 48.8 W Page 12 of 12