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HomeMy WebLinkAboutOrd 1625 - radio system franchise to metricom Ordinance No. 1625 AN ORDINANCE GRANTING A RADIO SYSTEM FRANCHISE TO METRICOM, INC. AND CONTAINING OTHER PROVISIONS. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF WEST UNIVERSITY PLACE: Section 1. The City of West University Place, Texas ("City") does hereby grant unto Metricom, Inc., a Delaware corporation, ("Metricom"), the right, privilege, and franchise to install, maintain, operate, use, remove, replace and repair Radios in the City's Municipal Right of Way solely to provide Services, but only if the Radios are attached to existing facilities in accordance with permits issued by the City as provided for in this franchise ordinance. This franchise ordinance includes and shall be subject to: (1) all provisions of the attached "Right of Way Use Agreement," which is approved and authorized, (2) the City's Charter, including all of Article IX, and (3) all other Laws. Section 2. Words and phases in this franchise ordinance have the same meanings as in the attached "Right of Way Use Agreement." In both documents, "City Liaison" means the City Manager or a person designated in writing by the City Manager to perform the functions of the City Liaison hereunder. In case of any conflict between this ordinance and that agreement, this ordinance controls. Section 3. This franchise shall take effect on ttle 31st day following final adoption of this ordinance, provided Metricom files a written acceptance of this franchise (in substantially the form attached) with City Secretary within 30 days after final adoption of this ordinance. PASSED AND APPROVED ON FIRST READING on ~. d 3, 19 ~1. PASSED AND APPROVED ON FINAL READING on "/.3 ,1911 o y ecretary R~ ~tyttorney .. - r- -,- .. ."Ii(, :: Lllr 'I'nl~'-'''- ACCEPTANCE To the City of West University Place, Texas: Metricom, Inc., for itself, its successors and assigns, hereby accepts the above and foregoing ordinance (No. 1625, adopted ~ /31999) and agrees to be bound by all of its terms and provisions. " Metricom, Inc. Date: SEP 291999 ~ Title: THE STATE OF TEXAS COUNTY OF HARRIS I, the duly-appointed, qualified and acting City Secretary of the City of West University Place, Texas, do hereby certify that the above and foregoing Acceptance was received and file~ the office of the City Secretary of the City of West University Place, Texas, on the S"" day of &?~ , 191.:l. EXECUTED under my h~nd ,~~ the official seal of the City of West University Place, Texas, at said City, this .s--r-aayof tfJ~~ , 19? 1. ~~ City ecretary City of West.University Place, Texas (SEAL) b53:\540merti , r- ... '__m______. .im" ,-Ilr ~ WEST UNIVERSITY PLACE 1!Ugltt-llf-lIIny Bst l\grttmtnt HIS RIGHT-OF-WAY USE AGREEMENT (this "Use Agreement") is dated as of SEP 291999 , (the "Effective Date"), and entered into by and between the CITY OF WEST UNIVERSITY PLACE, a Texas municip,al corporation (the "City"), and METRICOM, INC., a Delaware corporation ("Metricom"). ill i&tcttulli A. Metricom is in the business of constructing, maintaining, and operating a wireless digital data communications radio network known as Ricochet@, a network operated in accordance with regulations promulgated by the Federal Communications Commission, utilizing Radios (as defined in ~ 1.13 below) and related equipment certified by the Federal Communications Commission. B. Metricom wishes to locate, place, attach, install, operate, and maintain Radios on facilities owned by the City, as well as facilities owned by third parties, located in the Municipal Right of Way for purposes of operating Ricochet@. Agrttmtnt Nn1tt9 t:lJtrtfnrt9 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 Use Agreement: 1.1 Agency. "Agency" means any governmental or quasi-governmental agency othe~ than the City, including the Federal Communications Commission and the PUC(as such tennis defined in~ 1.12 below). 1.2 Fee. "Fee" means any assessment, license, charge, fee, imposition, tax, or levy of general application to Persons doing business in the City lawfully imposed by any governmental body (but excluding any utility users' tax, franchise fees, telecommunications tax, or similar tax or fee). 1.3 Gross Revenues. "Gross Revenues" means the gross dollar amount accrued on Metricom's books for Services provided to its customers with billing Right-ofWay Use Agreement City of West University Place :: Metricom, Inc. page 1 of14 ROW/fXtWestUniversityplace3] 08/18/994:28 PM addresses in the City, excluding (i) the Right-of-Way Fee, if any, payable pursuant to ~ 4 et seq. below and any utility users' tax, telecommunications tax, franchise fees, or similar tax or fee; (ii) local, state, or federal taxes collected by Metricom that have been billed to the subscribers and separately stated on subscribers' bills; and (ill) revenue uncollectible from subscribers (i.e., bad debts) with billing addresses in the City that was previously included in Gross Revenues. ^. 1.4 Installation Date. "Installation Date" shall mean the date that the first Radio is installed by Metricom pursuant to this Use Agreement. 1.5 Laws. "Laws" means any and all statutes, constitutions, ordinances, resolutions, regulations, judicial decisions, rules, tariffs, administrative orders, certificates, guidelines, orders, or other requirements of the City or other governmental agency having joint or several jurisdiction over the parties to this Use Agreement, in effect either as of the Effective Date or at any time during the presence of Radios in the Municipal Right of Way. 1.6 Metricom. "Metricom" means Metricom, Inc., a corporation dilly organized and existing under the laws of the State of Delaware, and its lawful successors, assigns, and transferees. 1.7 Municipal Access Program. "Municipal Access Program" means the discount program described in ~ 4.3 below. 1.8 Municipal Facilities. "Municipal Facilities" means City-owned street light poles, lighting fixtures, electroliers, or other City-owned structures located , within the Municipal Right of Way and may refer to such facilities in the singular or plural, as appropriate to the context in which used. 1.9 Municipal Right of Way. "Municipal Right of Way" means the space in, upon, above (to the height of any Municipal Facilities), along, across, and over the City's 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 county, state, or federal rights of way or any property owned by any Person or Agency other than the City, except as provided by applicable Laws or pursuant to an agreement between the City and any such Person or Agency. 1.10 Person. "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. RiglJf-ofWay Use Agreement City of West University Place :: Metricom, Inc. ' page 2 of14 ROWfI'XlWestUniversityplace3] 08/18/994:28 PM 1.11 Provision. "Provision" means any agreement, clause, condition, covenant, qualification, restriction, reservation, term, or other stipulation in this Use Agreement that defines or otherwise controls, establishes, or limits the performance required or permitted by any party to this Use Agreement. All Provisions, whether covenants or conditions, shall be deemed to be both '" covenants and conditions. 1.12 PUc. "PUC" means the Texas Public Utility Commission. 1.13 Radio. "Radio" means the radio equipment, whether referred to singly or collectively, to be installed and operated by Metricom hereunder, substantially as described in Exhibit A, attached. 1.14 Ricochet@). "Ricochet@" or "Ricochet@ MCDN" means Ricochet<ID MicroCellular Digital Network, a wireless, microcellular digital radio communications network owned arid operated by Metricom. 1.15 Services. "Services" means the wireless digital communications services provided through Ricochet<ID by Metricom. 1.16 City. "City" means the City of West University Place, Texas. 1.17 Use Agreement. "Use Agreement" means this nonexclusive Use Agreement and the attached franchise ordinance and acceptance. 2 TERM. This Use Agreement shall be effective as of the Effective Date and shall extend for a term of five (5) years commencing on the Installation Date, unless it is earlier terminated by either party in accordance with the provisions herein. The term of this Use Agreement shall be renewed automatically for three (3) successive terms of five (5) years each on the same terms and conditions as set forth herein, but subject to the right of either party to terminate the term of this Use Agreement sooner by notifying the other party as follows: (1) the notice must specify a termination date that falls after the expiration of the initial term and (2) the notice must be given on or before the 180th day before the specified termination date. 3 SCOPE OF USE AGREEMENT. Any and all rights expressly granted to Metricom under this Use Agreement, which shall be exercised at Metricom.'s sole cost.and expense, shall be subject to the continuing right of the City to control Municipal Right of Way to the full, exte~t of its authority, to regulate to the full extent of its authority, to use and occupy (and to allow others to use and occupy) ,any and all parts of the Municipal Right of Way exclusively or concurrently with any other Person or Persons and shall be further subject to all deeds, easements, dedications, conditions, covenants, restrictions" encumbrances, and claims of title of record which may affect the Municipal Right of Right-ofWay Use Agreement City o/West Uniumity PlaO! :: Metricotn, Inc; page 3 0/14 ROWfl'XIWestUniuersitypla0!3] 08/1.8/994:28 PM ---.... - ..-1"11'..... '.Blir -.--.--.-- --.....",-'.'.",.,"n,,-~.~~:.-:-:-,---__~___ .' Way. Nothing in this Use Agreement shall be deemed to grant, convey, create, or vest in Metricom a real property interest in land, including any fee, leasehold interest, or easement. Metricom must obtain any other grants, consents, and permissions from other parties which may be necessary to install a Radio or to use Municipal Right of Way or non-Ci1;y facilities, and the City makes no representation or warranty relating to any other grants, consents or permissions. Under no circumstances will Metricom be excused from obtaining such grants, consents or permissions by the granting of this franchise or by any other action or inaction of the City. 3.1 Attachment to Municipal Facilities. To the extent provided in a permit issued under this franchise, the City hereby authorizes and permits Metricom to enter upon the Municipal Right of Way and to locate, place, attach, install, operate, maintain, remove, reattach, reinstall, relocate, and repla<;e Radios in or on Municipal Facilities for the purposes of operating Ricochet@ and providing Services to Persons located within or without the limits of the City. In addition, subject to the provisions of S 4 below, Metricom shall have the right to draw electricity for the operation of the Radios from the power source associated with each such attachment to Municipal Facilities, but only to the extent allowed by the utility providing the electricity and applicable utility regulations. 3.2 Attachment to Third-Party Property. Subject to obtaining the permission of the owner(s) of the affected property, and to the extent provided in a permit issued under this franchise, the City hereby authorizes, and permits Metricom to enter upon the Municipal Right of Way and to attach, install, operate, maintain, remove, reattach, reinstall, relocate, and replace such nw:i:tber of Radios in or on poles or other structures owned by public utility companies or other property owners located within the Municipal Right of Way as may be permitted by the public utility company or property owner, as the case may be. Upon req~est, Metricom shall furnish to the City documentation of such pennissionfrom the individual utility or property owner responsible. 3.3 No Interference. Metrkom in the performance and exercise of its rights and obligations under this Use Agreement 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, service provider, utility, or municipal property, without the express written approval of the owner or owners of the affected property or properties, except as permitted by applicable Laws or this Use Agreement. ROW/l'XtWestUniuersityplace3J Right-ofWay Use Agreement Qty of We sf University Place :: Mefricom, Inc. page4of14 08/18/994:28 PM ~ ~!"'n~I~'-'-'---- 3.4 Compliance with Laws. Metricom shall comply with all applicable Laws in the exercise and performance of its rights and obligations under this Use Agreement. Such Laws, including those adopted after the Effective Date, shall control over anything to the contrary in this Agreement, to the extent required under such Laws. Metricom will provide proof of such compliance upon request by the City Liaison. Examples: proof of compliance with fe?-eral guidelines on radio frequency exposures or 47 CFR Part 15. ' 3.5 Obtaining Required Permits. If the attachment, installation, operation, maintenance, or location of the Radios in the Municipal Right of Way shall require any permits, Metricom shall, if required under applicable City ordinances, apply for the appropriate permits and pay any standard and customary permit fees. City shall promptly respond to Metricom's requests for permits and shall otherwise cooperate with Metricom in facilitating the deployment of Ricochet@) in the Municipal Right of Way in a reasonable and timely manner. The proposed locations of Metricom's planned initial installation of Radios shall be provided to the City promptly after Metricom's review of available street light maps and prior to deployment of the Radios. 3.6 Notice of Location of Radios. Upon the completion of installation, Metricom promptly shall furnish to the City suitable documentation showing the exact location of the Radios in the Municipal Right of Way. 4 COMPENSATION; DISCOUNTS; UTILITY CHARGES. Metricom shall be solely responsible for the payment of all lawful Fees in connection with Metricom's performance under this Use Agreement, including those set forth below. 4.1 Right-of-Way Fees. In order to reimburse City,for any costs it may incur in connection with Metricom's entry upon and deployment with the Municipal Right of Way, Metricom shall pay to the City, on an annual basis, an amoUI~.t equal to four percent (4%) of Metricom's Gross Revenues (the "Right-of-Way Fee"), which amount will be collected from subscribers of the Services with billing addresses in the City and remitted to City as provided herein. The compensation provided under this section shall be payable for the period commencing upon the date that Metricom first provides Services to commercially paying subscribers within the City using RadiosinstaIIed pursuant to this Use Agreement and ending on the date of termination of this Use Agreement, and shall be due on or before the 45th day after the end of each calendar year or fraction thereof. Within forty-five (45) days after the termination of this Use Agreement, compensation shall be paid for the period elapsing since the end of the last calendar year for which compensation has been paid. Metricom shall furnish to the City with each payment of compensation required by this section a statement, executed by an Right-of-Way Use Agreement City of West University Place :: Metricom, Inc. page 5 of14 08/18/994:28 PM ROW/TXIWestUlIwersityplace3j Right-of-Way Use Agreement City of West University Place :: Metricom, Inc. page 60f14 08/18/994:28 PM ROWfTXIWestUniversityplace31 -E~'="''"=~-''!-~~ _ ...:-:-.:_---~ r'.' -. m:t:::J. :.LJLI: benefits and such other terms and burdens by substitution, mutatis mutandis, of such other agreement or otherwise. 4.1.4 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 Use Agreement, up to a maximum of [Two Thousand Five Hundred Dollars :($2,500)] promptly upon receipt of bills, paid invoices, and such other documentation as Metricom shall reasonably require. The reimbursement provided for in this ~ 4.1.4 shall not replace or excuse Metricom from the payment of any applicable City permit fee for work undertaken in. connection, with this Use Agreement. 4.1.5 Annual Fee. As compensation for the use' of Municipal Facilities, 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 Municipal Facility upon which a Radio has been installed pursuant to this Use Agreement. The aggregate Annual Fee with respect to each year of the term.shall be an amount equal to the number of Radios installed on Municipal Facilities during the preceding twelve (12) months multiplied by the Annual Fee, prorated as appropriate, and shall be due and payable not later than forty-five (45) days after each anniversary of the Installation Date. To the extent the City has actual knowledge thereof, the City will attempt promptly to inform Metricom of the ~isplacement or removal of any Municipal Facility on which any Radio is located. 4.2 Electricity Charges. Metricom shall be solely'responsible for the payment of all electrical utility charges to the applicable utility company based upon the Radios' usage of electricity and applicable tariffs. 4.3 Municipal Access Program. In consideration of City's execution and delivery of this Use Agreement, City shall have the right throughout the term of this Use Agreement to purchase, when such service is commercially available in the City, up to the maximum number set forth below (based upon the City's population) of Ricochet@ basic service subscriptions at the rate of fifty percent (50%) of the regular rate as current from time to time. The number of subscriptions which the City may purchase at the Municipal 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 municipalities with a population of less than 100,000, up to a maximum of twenty (20) discount subscriptions; (b) for municipalities with a population of 100,000 to 249,000, up to a maximum of thirty (30) discount subscriptions; (c) for municipalities with a Right-ofWay Use Agreement Oty a/West University Place :: Metricom, Inc. page 70/14 08/18/994:28 PM ROW/fXIWestUniversityplace3] ~~---'------'-'----~~------------'-'---_.._'"'..'""''l'1r''---'-'''--''.''..--''----------'------------- population of 250,000 to 500,000, up to a maximum of forty (40) discount subscriptions; and (d) for municipalities 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 Municipal Access Program rate and may be obtained from either Metricomor 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 Municipal Access Program rate. City and its officers and employees shall use all subscriptions provided pursuant to this 6.4.3 solely for City's own use and shall not be entitled to resell, distribute, or otherwise permit the use of the same by any other Person. 5 RELOCATION OF RADIOS. Metricom understands and acknowledges that City may require Metricom to relocate one or more of its Radios, and Metricom shall at City's direction relocate such Radios at Metricom's sole cost and expense, whenever City reasonably determines that the relocation is needed for any of the following purposes: (a) if required for the construction, completion, repair, relocation, or maintenance of a , City project; (b) because the Radio is interfering with or adversely affecting proper operation of City-owned light poles, traffic signals,' or other Municipal Facilities; or (c) to comply with applicable laws, rules, regulations or ordinances. In any such case, City shall use its best efforts to afford Metricom a reasonably equivalent alternate location. If Metricom shall fail to relocate any Radios as requested by the City within a reasonable time under the circumstances in accordance with the foregoing provision, City shall be entitled to relocate the Radios at Metricom's sole cost and exp~nse, without further notice to Metricom. 5.1 Relocations at Metricom's Request. In. the event Metricom desires to relocate any Radios from one Municipal Facility to another, Metricom shall so advise City and must obtain the informal approval of. the City Liaison for any such relocation. 6' INDEMNIFICATION AND WAIVER. METRICOM AGREES TO PROTECT, DEFEND, INDEMNIFY AND HOLD CITY AND ITS OFFICERS, AGENTS AND EMPLOYEES (ALL REFERRED TO AS /lINDEMNITEES") HARMLESS FROM AND AGAINST ALL CLAIMS, DEMANDS, COSTS, EXPENSES, ACTIONS, CAUSES OF ACTION AND LIABILITIES FOR,DEATHS,INJURIES OR DAMAGES TO ANY ENTITIES, PERSONS OR PROPERTY ARISING OUT OF (1) THE CONSTRUCTION, OPERATION OR MAINTENANCE OF RADIOS,'AS DEFINED IN SECTION 1.13 HEREIN, (2) ANY SERVICES, AS DEFINED IN SECTION 1.15 HEREIN, IN THE CITY (3) ANY ACT, NEGLIGENCE OR NONFEASANCE OF METRICOM OR ITS CONTRACTORS, OFFICERS, AGENTS OR EMPLOYEES IN Right-ofWay Use Agreement City of West Uniuersity plJzce :: Metricom, Inc. page 80f14 08/18/994:28 PM ROWfTXiWestUniversityplJzce3] r" -. ."Tf'C .........--..- - . .... -'.-;n--l I' hill CONNECTION WITH THIS AGREEMENT, OR (4) METRICOM'S EXERCISE OF THE RIGHTS AND PRIVILEGES HEREBY GRANTED, OR THE ABUSE THEREOF. METRICOM DOES INTEND TO PROTECT THE INDEMNITEES FROM THE CONSEQUENCES OF THEIR OWN JOINT OR CONCURRENT NEGLIGENCE WITH METRICOM, BUT NOT WHERE CITY AND A THIRD PARTY ARE JOINTLY OR CONCURRENTLY NEGLIGENT, AND NOT FROM THE INDEMNITEES' SOLE NEGLIGENCE OR WILLFUL MISCONDUCT. METRICOM WAIVES AND RELEASES ANY AND ALL CLAIMS, DEMANDS, CAUSES OF ACTION, AND RIGHTS IT MAY HAVE NOW OR IN THE FUTURE AGAINST THE INDEMNITEES FOR LIABILITIES, DEATHS, INJURIES OR DAMAGES ARISING OUT OF (1) THE CONSTRUCTION, OPERATION OR MAINTENANCE OF RADIOS BY METRICOM, (2) ANY SERVICES, AS DEFINED IN SECTION 1.15 HEREIN, IN THE CITY, (3) THE GRANTING OF THIS FRANCHISE, (4) THE LAWFUL EXERCISE OF POWERS OR AUTHORITY RELATING TO THIS FRANCHISE. 7 INSURANCE. Metricom shall obtain and maintain at all times during the term of this Use Agreement commercial general liability insurance and commercial automobile liability insurance protecting Metricom in an amount not less than One Million Dollars ($1,000,000) per occurrence (combined single limit), including bodily injury, and property damage, and in an amount not less than One Million Dollars ($1,000,000) annual aggregate for each personal injury liability and products-completed operations. Such insurance policies shall name the City, its council members, officers, and employees as additional insureds as respects any covered liability arising out of Metricom's performance of work under this Use Agreement. Coverage shall be in an occurrence form and in accordance with the limits and provisions specified herein. Oairns-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 the policy limits 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. , 7.1 Filing of Certificates and Endorsements. Prior to the commencement of any work pursuant to this Use Agreement, Metricom shall file with the City theerequired original certificate(s) of insurance with endorsements, which shall clearly state all of the following: (a) the policy number; name of insurance company; name and address of the agent or' authorized representative; name, address, and telephone number of insured; project name and Rigl.t-ofWay Use Agreement City Of West University Place :: Metricoln, Inc. page9of14 08/18}994:28 PM ROW/fXIIVestUlliversityplace3} address; policy expiration date; and specific coverage amounts; (b) that the City shall receive thirty (30) days' prior notice of cancellation; (c) that Metricom's insurance is primary aSJespects 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) that Metricom's CGL coverage shall be in an occurrence form and in accor<iance with the limits specified herein with a per-project-Iocation aggregate endorsement that makes the 'aggregate limit applicable to West University Place and not subject to reduction by claims elsewhere. "Project location" means all premises involved in one master lease or use agreement. The certificate(s) of insurance with endorsements and notices shall be mailed to the City at the address specified in ~ 8 below. 7.2 Workers' Compensation Insurance. Metricom shall obtain and maintain at all times during the term of this Use Agreement 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, with a waiver of subrogation in favor of the City, its officers, agents and employees. 7.3 Insurer Criteria. Any insurance provider of Metricom shall be admitted and authorized to do business in the State of Texas and shall be rated at least A:X in A.M. Best & Company's Insurance Guide. Insurance policies and certificates issued by non-admitted insurance companies are not acceptable. 7.4 Severability of Interest. Any deductibles or self-insured retentions must be stated on the certificate(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, if requested by the City liaison. Rigllt-ofWay Use Agreement City of West University Place :: Metricom, Inc. page 10 of14 08/18}994:28 PM ROW/fXIWestUlIiversityplace3 J ~ -:-m:l-:::l. ___._____~..j i ~ll....I: ":1:1': 7.5 Contractors' and Subcontractors' Insurance. Metricom shall require that all contractors and subcontractors obtain insurance meeting the criteria set forth herein and shall furnish to the City copies of all certificates evidencing such policies of insurance. ,8 NOTICES. All notices which shall or may be given pursuant to this Use Agreement shall be in writing and delivered personally or transmitted (a) through the United States mail, by registered or c~rtified mail, postage prepaid; (b) by means of prepaid overnight delivery service; or (c) by facsimile or email transmission, if a hard copy of.the same is followed by delivery through the U. S. mail or by overnight delivery service as just described, addressed as follows: if to the City: CITY OF WEST UNIVERSITY PLACE Attn: City Secretary 3800 University Blvd. Houston, TX 77005 if to Metricom: METRICOM, INC. Attn: Network Real Estate 980 University Avenue Los Gatos, CA 95032 FAX 408-354-9537 8.1 Date of Notices; Changing Notice Address. 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 facsimile, email, or 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. 9 TERMINATION. This Use Agreement may be terminated by either party upon forty five (45) days' prior written notice to the other party upon a default of any material covenant or term hereof by the other party, which default is not cured within forty-five (45) days of receipt of written notice of default (or, if such default is not curable within forty-five (45) days, if the defaulting party fails to commence such cure within forty-five (45) days or fails thereafter diligently to. prosecute such cure to completion), provided that the grace period for any monetary or insurance default shall be ten (10) business days from receipt of notice. Except as expressly provided herein, the rights granted under this Use Agreement are irrevocable during the term.. Right-ofWay Use Agreement City of West University Place :: Metricom, Inc. . page 11 of14 08/18/994:28 PM ROW/fX/vVestUniuersityplace3] , r ~ r--'" .....--.--~-....- .- "'h,~-' .'Ilr - ---.--~-,.--_._.,.-~'~'~'l'Tr"-c'~--.-,:"--,-,- 10 ASSIGNMENT. This Use Agreement shall not be assigned by Metricom without the prior written consent of the City, which consent shall not be unreasonably withheld, delayed or conditioned. Notwithstanding the foregoing, the transfer of the rights and obligations of Metricom to a parent, subsidiary, affiliate, or any successor or entity acquiring fifty-one percent (51 %) or more of Metricom's stock or assets shall not be deemed an assignment for. the purposes of this Agreement and, therefore shall not require the consent of the City, provided that Metricom reasonably aemonstrates to the City Manager, Mayor or his/her lawfully empowered designee that (i) such transferee will have a financial strength after the proposed transfer at least equal to that of Metricom immediately prior to the transfer; (ii) any such transferee assumes all of Metricom's obligations hereunder; and (ill) the experience and technical qualifications of the proposed transferee, either alone or together with Metricom's management team, in the provision of telecommunications or similar services evidences an ability to operate Ricochet@}. Metricom shall give thirty (30) days' written notice of any such proposed transfer. The appropriate City representative shall have thirty (30) days from the date that Metricom provides all of the information Metricom reasonably believes is required to meet the burden of proof required by the previous sentence to object in writing to the adequacy of the evidence, and such representative's failure to act within said thirty (30) days shall be deemed an affirmation that Metricom has in fact met the required burden of proof. 11 MISCELLANEOUS PROVISIONS. The provisions which follow shall apply generally to the obligations of the parties under this Use Agreement. 11.1 Nonexclusive Use. Metricom understands that this Use Agreement does not provide Metricom with exclusive use of the Municipal Right of Way or any Municipal Facility and that City shall have the right to permit other providers of telecommunications services to install equipment or devices in the Municipal Right of Way and on Municipal Facilities. 11.2 Amendment of Use Agreement. This Use Agreement may not be amended except pursuant to a written instrument signed by both parties. 11.3 Severability of Provisions. H anyone or more of the Provisions of this Use Agreement 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 Use Agreement and shall not affect the legality, validity, or constitutionality of the remaining portions of this Use Agreement. Each party hereby declares that it woUld have entered into this Use Agreement and each Provision hereof irrespective of the fact that anyone or more Provisions be declared illegal, invalid, or unconstitutional. Right-ofWay Use Agreement City of West UniDersity Place :: MetriCOln, Inc. page 12 0114 08/18/994:28 PM ROWfTXIVVestUniversityplace3] 11.4 Contacting Metricom. Metricom shall be available to the staff employees of any City department 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) 873-3468 regarding such problems or complaints. 11.5 Governing Law; Jurisdiction. This Use Agreement shall be governed and construed hy and in accordance with the laws of the State of Texas, without reference to its conflicts of law principles. If suit is brought by a party to this Use Agreement, the parties agree that trial of such action shall be vested exclusively in the state courts of Texas, County of Harris, or in the United States District Court for the Southern District of Texas. 11.6 Exhibits. All exhibits referred to in this Use Agreement and any addenda, attachments, and schedules which may from time to time be referred to in any duly executed amendment to this Use Agreement are by such reference incorporated in this Use Agreement and shall be deemed a part of this Use Agreement. 11.7 Successors and Assigns. This Use Agreement is binding upon the successors and assigns of the.parties hereto. 11.8 Consent Criteria. .In any case where the approval or consent of one party hereto is required, requested or otherwise to be given under this Use Agreement, such party shall not unreasonably delay, condition, or withhold its approval or consent. 11.9 Waiver of Breach. The waiver by either party of any breach or violation of any Provision of this Use Agreement shall not be deemed to be a waiver or a continuing waiver of any subsequent breach or violation of the same or any other Provision of this Use Agreement. 11.10 Representations and Warranties. Each of the parties to this Agreement represents and warrants that it has the full right, power, legal capacity, and authority to enter into and perform the parties' respective obligations hereunder and that such 'obligations shall be binding upon such party without the requirement of the approval or consent of any other person or entity in connection herewith, except as provided in S 3.2 above. 12 Entire Agreement. This Use Agreement 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 Right-ofWay Use Agreement Oty of West University Place :: MetriCOlR, Inc. page 130f14 08/18/994:28 PM ROW/IiVt'VestUrriversityplace3] relating to the subject matter of this Use Agreement which are not fully expressed herein. lIn mitness m4rrrnf. and in order to bind themselves legally to the terms and conditions of this Use Agreement, the duly authorized representatives of the parties have executed this Use Agreement as of the Effective Date. City: CITY OF WEST UNIVERSITY PLACE, a' Texas municipal corporation By: ~hl [name typed] Its: City Manager Date: 9.\4- , 1999 Metricom: METRICOM, INC., a Delaware corporation By: ~~ M. Gopadz", [name typed] Senior Vice President, Its: Field Operations Group Date: SEP 2 9 1~~~ ,1999 Approved as to Form ROW E::e~artmenl By: . .. /' Date: . ~ .,,,\ Right-of-Way Use Agreement Oty of West University Place :: Metricom, Inc. page 740f74 08/18/994:28 PM ROWfIXlWestUniversityp/ace3] Exhibit A (Page 1 of 1) for "Right-of-Way Use Agre Frequency-Hopping Pseudorandom, Asynchronous ranges from 10-200 IDS per packet, depending on size 128 kbps typical download Standard AT Command Set AT, PPP, IP, FfP, HTIP. and HTIPS FCC Part 15.247 Unlicensed Spread-SpectrUm . Industry Canadian Requirements specified in 000 RS210 for spread- spectrum products RICOCHET DATA AND STATISTICS .'~~.a~J':~:'"7'"~.:".;:"",_" GENERAL INFORMATION Spreading Technique: Hopping Technique: Typ. System Transmission TIme: Effective System Baud Rate: Modem Command Set: Protocols Supported: Regulatory Compliance: RICOCHET RF SPECIFICATIONS Operating Frequency Ranges: Number of Channels: Channel Spacing: Typ. RF Data R4u: Typ. Btaebllnti Modulation: Typ. ReceifJer Sensitif1ity: Max. Tnmsmitter BE O~ SECURITY MEASURES RJUlio Frequencies (RF): Rkocbd AMtborization: &abentic4tion: DIIta Encryption: i t . . 'l t~ Ai Metrlcom 902 - 928 MHz and 2.400 - 2.483 GHz 162 - 900 MHz 260 - 2.4 GHz 160 kHz - 900 MHz 320 kHz - 2.4 GHz 484 kbps - 900 MHz 970 kbps - 2.4 GHz ""4 DQPSK-900 MHz (Differentia1l:y-encoded Quaternary Phase-Shift Keyed digital modulation f1Jitb fC/4 radian quantization states.) 16 QAM-2.4 GHz (Quadrature Amplitude Modulation, multi-leuel digital modulation) - 100 dBm + 30 dBm (1 Watt) Maximum Frequency-Hopping Spread Spectrum Name Server · Ricochet System · Gateway access · connection password Radius · CHAP · TACACS+ VPN · RSA RC-4 l. METRICOM, INC. 980 University Avenue Los Gatos, CA 95032 408.399.8200 www.metricom.com www.ricochet.net / / .."''flrr-'