ORDINANCE NO. 2770-04

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SUNNYVALE AWARDING A NON-EXCLUSIVE FRANCHISE TO METROFI, INC., TO INSTALL COMMUNICATIONS EQUIPMENT ON CITY-OWNED LIGHT POLES FOR THE PURPOSE OF PROVIDING WIRELESS INTERNET SERVICE

WHEREAS, the Charter of the City of Sunnyvale provides that no person, firm, or corporation shall use public streets, ways, alleys or places for the purpose of furnishing, transmitting, or conveying communication services unless such person, firm, or corporation has first been granted a Franchise by the City Council;

WHEREAS, Metrofi, Inc., a Delaware corporation, has applied for a non-exclusive Franchise to install communications equipment on light poles owned by the City of Sunnyvale for purpose of furnishing wireless internet service to the residents of Sunnyvale and to transmit and convey such service within Sunnyvale and elsewhere; and

WHEREAS, the City Council finds that it would be in the best interests of the City of Sunnyvale to award a non-exclusive franchise to Metrofi, Inc., for the aforesaid purpose;

NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SUNNYVALE DOES ORDAIN AS FOLLOWS:

SECTION 1.      FRANCHISE GRANTED.  The City of Sunnyvale hereby grants to Metrofi, Inc., a non-exclusive franchise to install communications equipment on light poles owned by the City of Sunnyvale for the purpose of providing wireless internet service.  Metrofi, Inc., shall conduct its operations under the Franchise in strict compliance with the Street Light Pole Contact and Franchise Agreement attached hereto and incorporated by reference, together with all applicable laws and regulations of the City of Sunnyvale, State of California, the United States or any regulatory agency having jurisdiction.

SECTION 2.       TERM.  The term for which this Franchise is granted shall be five (5) years beginning on January 1, 2005, and ending December 31, 2010.

SECTION 3.       CONSIDERATION.  Metrofi, Inc., shall pay City as consideration for the granting of this Franchise the amounts forth in the Street Light Pole Contact and Franchise Agreement.

SECTION 4.       GENERAL CONDITIONS.  This Franchise is granted subject to the terms and conditions set forth in the Street Light Pole Contact and Franchise Agreement, attached and incorporated herein by reference.

SECTION 5.       ACCEPTANCE OF FRANCHISE TERMS AND CONDITIONS.  This Franchise shall not become effective until the Franchisee accepts the Franchise by executing the Street Light Pole Contact and Franchise Agreement within ten days after adoption of this ordinance.

SECTION 6.       APPROVAL OF FRANCHISE AGREEMENT - EXECUTING AND ATTESTING.  The Street Light Pole Contact and Franchise Agreement is hereby approved, and the City Manager is authorized to execute it on behalf of the City.

SECTION 7.       SEVERABILITY.  If any section, subsection, sentence, clause or phrase of this ordinance is for any reason held to be invalid, such decision or decisions shall not affect the validity of the remaining portions of this ordinance.  The City Council hereby declares that it would have passed this ordinance, and each section, subsection, sentence, clause and phrase thereof irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases be declared invalid.

SECTION 8.       CEQA.  The City Council finds, pursuant to Title 14 of the California Code of Regulations, Section 15301, Existing Facilities, that this ordinance is categorically exempt from the requirements of the California Environmental Quality Act (CEQA) in that it consists of the minor alteration of existing structures.

SECTION 9.       EFFECTIVE DATE.  This ordinance shall be in full force and effect thirty (30) days from and after the date of its adoption.

SECTION 10.      POSTING AND PUBLICATION.  The City Clerk is directed to cause copies of this ordinance to be posted in three (3) prominent places in the City of Sunnyvale and to cause publication once in The Sun, the official newspaper of the City of Sunnyvale, of a notice setting forth the date of adoption, the title of this ordinance, and a list of places where copies of this ordinance are posted, within fifteen (15) days after adoption of this ordinance.

Introduced at a regular meeting of the City Council held on December 7, 2004, and adopted as an ordinance of the City of Sunnyvale at a regular meeting of the City Council held on ____________, by the following vote:

(SEAL)