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R99-021 03-29-99
RESOLUTION NO. R99-21 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS, AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO EXECUTE A RIGHT-OF-WAY USE AGREEMENT WITH METRICOM, INC., A DELAWARE CORPORATION, TO PERMIT THE CONSTRUCTION, MAINTENANCE, AND OPERATION OF A WIRELESS DIGITAL DATA COMMUNICATIONS RADIO NETWORK WITHIN THE CORPORATE LIMITS OF THE CITY OF PEARLAND. BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS: Section 1. That certain Right-of-Way Use Agreement by and between the City of Pearland and Metricom, Inc., a Delaware corporation, a copy of which is attached hereto as Exhibit "A" and made a part hereof for all purposes, is hereby authorized and approved. Section 2. That the City Manager or his designee is hereby authorized to execute and the City Secretary to attest the original of the attached agreement for and on behalf of the City of Pearland. PASSED, APPROVED and ADOPTED this the~C~'7'~day of /'~o.r'c.h , A.D., 1999. TOM REID MAYOR ATTEST: Ty UNG ~IN'G.,/'~ / SBCRETAR~T APPROVED AS TO FORM: CITY ATTORNEY Exhibit "A" PEARLAND HIS RIGHT-OF-WAY USE AGREEMENT (this "Use Agreement") is dated as of , (the "Effective Date"), and entered into by and between the CITY OF PEARLAND, a Texas municipal corporation (the "City"), and METRICOM, INC., a Delaware corporation ("Me~ricom"). A. Metricom is in the business of constructing, maintaining, and operating a wireless digital data communications radio network known as RicochetS, 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. Subject to reasonable municipal regulations concerning the time, location, manner of attachment, installation, and maintenance of its facilities, Metricom has the right under federal and Texas law to install facilities in municipal public ways. C. 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 RicocheteD. ~llltl, tl~lerJefilrl~, 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 other than the City, including the Federal Communications Commission and the PUC (as such term is 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). Right-of-Way Use Agreement City of[Name of Municipality] :: Metricom, Inc. page I of 14 pearland2.doc [05mas28row98ua1] 03/09/99 10:23 AM 1.3 Gross Revenues. "Gross Revenues" means the gross dollar amount accrued on Metricom's books for Services provided to its customers with billing addresses in the City, excluding (i)the 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 (iii) 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, 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 duly 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 drainage facilities, 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 public streets, drainage ways, 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. Right-of-Way Use Agreement City of[Name of Municipality] :: Metn'com, Inc. page 2 of 14 pearland2.doc [05mas28row98ual ] 03/09/99 10:23 AM 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. 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. 1.14 RicochetS. "Ricochet(b" or "Ricochet(b MCDN' means Ricochet~ MicroCellular Digital Network, a wireless, microCellular digital radio communications network owned and operated by Metricom. 1.15 Services. "Services" means the wireless digital communications services provided through Ricochet~ by Metricom. 1.16 City. "City" means the City of Pearland. 1.17 Use Agreement. "Use Agreement" means this nonexclusive Use Agreement and may also refer to the associated right to encroach upon the Municipal Right of Way conferred hereunder. 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 two (2) successive terms of five (5) years each on the same terms and conditions as set forth herein, unless Metricom notifies the City of its intention not to renew not less than thirty (30) calendar days prior to commencement of the relevant renewal term. 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 prior and continuing right of the City under applicable Laws to use 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 Way. Nothing in this Use Agreement shall be deemed to grant, convey, create, or vest in Metricom a real property interest in land, Right-of-Way Use Agreement City of[Name of Municipality] :: Metricom, Inc. page 3 of 14 pearland2.doc [05mas28row98ua1] 03/09/99 10:23 AM including any fee, leasehold interest, or easement. Any work performed pursuant to the rights granted under this Use Agreement may, at the City's option, be subject to the reasonable prior review and approval of the City. 3.1 Attachment to Municipal Facilities. In the event that City should acquire Municipal Facilities in the future, 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 replace 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 § 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. The parties hereby acknowledge that the City does not own any such Municipal Facilities as of the date of execution of this Agreement. 3.2 Attachment to Third-Party Property. Subject to obtaining the permission of the owner(s) of the affected property, 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 number 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 request, Metricom shall furnish to the City documentation of such permission from the individual utility or property owner responsible. 3.3 No Interference. Metricom 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, 0erial 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. 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. 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 Right-of-Way Use Agreement City of[Name of Municipality] :: Metricom, Inc. page 4 of 14 pearland2.doc [05mas28row98ua1] 03/09/99 10:23 AM 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. 3.6 City Ordinance and Regulations. Nothing herein shall be deemed ot direct or restrict the City's ability to adopt and enforce all necessary and appropriate ordinances regulating the performance of the conditions of this Agreement, including any valid ordinance made in the exercise of its police powers in the interest of public safety and for the welfare of the public. The City shall have the authority at all times to control by appropriate regulations the location, elevation, manner of construction and maintenance of any communications or cable facilities by Metricom, and Metricom shall promptly conform with all such regulations, unless compliance would cause Metricom to violate other requirements of law. 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 amount equal to five percent (5%) 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 Radios installed 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 authorized officer of Metricom or his or her designee, showing the amount of Gross Revenues for the period Right-of-Way Use Agreement City of[Name of Municipality] :: Metricom, Inc. page 5 of 14 pearland2.doc [05mas28row98ua1] 03/09/99 10:23 AM covered by the payment. If Metricom discovers that it has failed to pay the entire or correct amount of compensation due, the City shall be paid by Metricom within thirty (30) days of discovery of the error or determination of the correct amount. Any overpayment to the City through error or otherwise shall be refunded or offset against the next payment due from Metricom. Acceptance by the City of any payment due under this section shall not be deemed to be a waiver by the City of any breach of this Use Agreement occurring prior thereto, nor shall the acceptance by the City of any such payments preclude the City from later establishing that a larger amount was actually due or from collecting any balance due to the City. 4.1.1 Reduction of Right-of-Way Fee by Amount of Utility Users or Telecommunications Tax. Notwithstanding anything to the contrary in this Use Agreement, if the Services are subject to a utility users tax, telecommunications tax, or other similar tax or fee by operation of the City's Municipal Code or other applicable law, then the amount of the Right-of-Way Fee shall be reduced by the amount of the applicable utility users tax, telecommunications tax, or such other similar tax or fee save and except Metricom's obligation to reimburse City for street repairs, which obligation is not affected by Metricom's payment of fees hereunder. 4.1.2 Accounting Matters. Metricom shall keep accurate books of account at its principal office in Los Gatos or such other location of its choosing for the purpose of determining the amounts due to the City under § 4.1 above. The City may inspect Metricom's books of account relative to the City at any time during regular business hours on ten (10) business days' prior written notice and may audit the books from time to time at the City's sole expense, but in each case only to the extent necessary to confirm the accuracy of payments due under § 4.1 above. The City agrees to hold in confidence any non-public information it learns from Metricom to the fullest extent permitted by Law. 4.1.3 Audit. If the results of any audit indicate that Metricom (i) paid the correct Right-of-Way Fee, (ii) overpaid the Right-of-Way Fee and is entitled to a refund or credit, or (iii) underpaid the Right-of-Way Fee by five percent (5%) or less, then the City shall pay the costs of the audit. If the results of the audit indicate that Metricom underpaid the Right-of- Way Fee by more than five percent (5%), then Metricom shall pay the reasonable costs of the audit. 4.2 Most Favored Municipality Clause. Should Metricom after the parties' execution and delivery of this Use Agreement enter into an attachment permit agreement with another municipality of the same size or smaller than the City in the Houston Metropolitan Statistical Area which agreement contains Right-of-Way Use Agreement City of[Name of Municipality] :: Metn'com, Inc. page 6 of 14 pearland2.doc [05mas28row98ua1] 03/09/99 10:23 AM financial benefits for such municipality which, taken as a whole and balanced with the other terms of such agreement, are in the City's opinion substantially superior to those in this Use Agreement, City shall have the right to require that Metricom modify this Use Agreement to incorporate the same or substantially similar superior benefits and such other terms and burdens by substitution, mutatis mutandis, of such other agreement or otherwise. 4.3 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. 4.4 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 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 Metricom or an authorized retailer at market rates current from time to time or under other promotional programs which may be available from time to time in addition to the Municipal Access Program rate. City shall use all subscriptions provided pursuant to this § 4.3 solely for its own use and shall not be entitled to resell, distribute, or otherwise permit the use of the same by any other 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 Right-of-Way Use Agreement City of[Name of Municipality] :: Metricom, Inc. page 7 of 14 pearland2.doc [05mas28row98ua1] 03/09/99 10:23 AM operation of City-owned light poles, traffic signals, or other Municipal Facilities; or (c) to protect or preserve the public health or safety. 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 expense, 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. City will use its best efforts to accommodate Metricom by making another reasonably equivalent Municipal Facility available for use in accordance with and subject to the terms and conditions of this Use Agreement. 5.2 Damage to Municipal Right of Way. Whenever the removal or relocation of Radios is required or permitted under this Use Agreement, and such removal or relocation shall cause the Municipal Right of Way to be damaged, Metricom, at its sole cost and expense, shall promptly repair and return the Municipal Right of Way in which the Radios are located to a safe and satisfactory condition in accordance with applicable Laws, normal wear and tear excepted. If Metricom does not repair the site as just described, then the City shall have the option, upon fifteen (15) days' prior written notice to Metricom, to perform or cause to be performed such reasonable and necessary work on behalf of Metricom and to charge Metricom for the proposed costs to be incurred or the actual costs incurred by the City at City's standard rates. Upon the receipt of a demand for payment by the City, Metricom shall promptly reimburse the City for such costs. 5.3 Removal ofUnusedRadios. In the event any Radio is broken, abandoned or otherwise not functioning properly, Metricom shall remove or repair such Radio within thirty (30) days of receiving such a written request from City. 6 INDEMNIFICATION AND WAIVER. Metricom agrees to indemnify, defend, protect, and hold harmless the City, its council members, officers, and employees from and against any and all claims, demands, losses, damages, liabilities, fines, charges, penalties, administrative and judicial proceedings and orders, judgements, remedial actions of any kind, all costs and cleanup actions of any kind, and all costs and expenses incurred in connection therewith, including reasonable attorney's fees and costs of defense (collectively, the "Losses") directly or proximately resulting from Metricom's activities undertaken pursuant to this Use Agreement, except to the extent arising from or caused Right-of-Way Use Agreement City of[Name of Municipality] :: Metricom, Inc. page 8 of 14 pearland2.doc [05mas28row98ua1] 03/09/99 10:23 AM by the negligence or willful misconduct of the City, its council members, officers, employees, agents, or contractors. 6.1 Waiver of Claims. Metricom waives any and all claims, demands, causes of action, and rights it may assert against the City on account of any loss, damage, or injury to any Radio or any loss or degradation of the Services as a result of any event or occurrence which is beyond the reasonable control of the City. 6.2 'Limitation o£ City's Liability. To the extent allowed by law, the City shall be liable only for the cost of repair to damaged Radios arising from the negligence or willful misconduct of City, its employees, agents, or contractors. 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 iniury and property damage, and in an amount not less than One Million Dollars ($1,000,000) annual a§~re§ate for each personal iniury 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. Claims-made policies are not acceptable. ~hen an umbrella or excess covera§e 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 no~ying the City of such change or cancellation. 7.1 Filin§ o£ Certificates and Endorsements. Prior to the commencement of any work pursuant to this Use Affreement, Metricom shall file with the City the required 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; proiect name and address; policy expiration date; and specific coverage amounts; (b) that the City shall receive thirty (30) days' prior notice of cancellation; and Right-of-Way Use Agreement Cihj of[Name of Municipalit~j] :: Metricom, Inc. page 9 of 14 pearland2.doc [05mas28row98ua1] 03/09/99 10:23 AM (c) that Metricom's insurance is primary as respects any other valid or collectible insurance that the City may possess, including any self-insured retentions the City may have; and any other insurance the City does possess shall be considered excess insurance only and shall not be required to contribute with this insurance. 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. 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. 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 certified 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 PEARLAND Attn: City Secretary, Y-oFand-15~ ~/0o~0~ /.,o~/v~ 3519 Liberty Drive Pearland, TX 77581 Right-of-Way Use Agreement City of Pearland:: Metn'com, Inc. page 10 of 14 pearland2.doc [05mas28row98ua1] 03/09/9910:47 AM if to Metricom: METRICOM, INC. Attn: Property Manager 980 University Avenue Los Gatos, CA 95032 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 thirty (30) 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 thirty (30) days of receipt of written notice of default (or, if such default is not curable within thirty (30) days, if the defaulting party fails to commence such cure within thirty (30) days or fails thereafter diligently to prosecute such cure to completion), provided that the grace period for any monetary default shall be ten (10) days from receipt of notice. Except as expressly provided herein, the rights granted under this Use Agreement are irrevocable during the term. 10 ASSIGNMENT. This Use Agreement shall not be assigned by Metricom without the express written consent of the City, which consent shall not be unreasonably withheld, conditioned, or delayed. Notwithstanding the foregoing, the transfer of the rights and obligations of Metricom hereunder to a parent, subsidiary, successor, or financially viable affiliate shall not be deemed an assignment for the purposes of this Use Agreement. 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; however, City agrees promptly to notify Metricom of the receipt of a proposal for the installation of communications equipment or devices in the Municipal Right of Way or on Municipal Facilities. In addition, City agrees to advise other providers of telecommunications services of the presence or planned deployment of the Radios in the Municipal Right of Way and/or on Municipal Facilities. Right-of-Way Use Agreement City of[Name of Municipality[ :: Metricom, Inc. page 11 of 14 pearland2.doc [05mas28row98ual ] 03/09/99 10:23 AM 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. If any one 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 any one or more Provisions be declared illegal invalid, or unconstitutional. 11.4 Contacting Metricom. Metricom shall be available to the staff employees of any City department having jurisdiction over Metricom's activities twenty-four (24) hours a day, seven (7) days a week, regarding problems or complaints resulting from the attachment, installation, operation, maintenance, or removal of the Radios. The City may contact by telephone the network control center operator at telephone number (800)873-3468 regarding such problems or complaints. 11.5 Governing Law; Jurisdiction. This Use Agreement shall be governed and construed by 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 [Name of County], or in the United States District Court for the [Federal District Court Name] District of Texas. 11.6 Attorneys' Fees. Should any dispute arising out of this Use Agreement lead to litigation, the prevailing party shall be entitled to recover its costs of suit, including reasonable attorneys' fees. 11.7 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. 11.8 Successors and Assigns. This Use Agreement is binding upon the successors and assigns of the parties hereto. 11.9 Advice of Displacement. To the extent the City has actual knowledge thereof, the City will attempt promptly to inform Metricom of the displacement or removal of any pole on which any Radio is located. Right-of-Way Use Agreement City of[Name of Municipality] :: Metricom, Inc. page 12 of 14 pearland2.doc [05mas28row98ual ] 03/09/99 10:23 AM 11.10 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. 11.11 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. 11.12 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 § 3.2 above. In addition, City specifically represents and covenants that City owns all Municipal Facilities for the use of which it is collecting from Metricom the Annual Fee pursuant to § 4.1 above. 11.13 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 relating to the subject matter of this Use Agreement which are not fully expressed herein. Right-of-Way Use Agreement City of[Name of Municipality] :: Metricom, Inc. page 13 of 14 pearland2.doc [05mas28row98ua1] 03/09/99 10:23 AM ~1t lllitlll~ttlt lll[~l~Itl~llt~, 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 [NAME OF MUNICIPALITY], a Texas municipal corporation By: [na~ ty~ed[ Its: Date: , [Year of Agreement Date] Metricom: METRICOM, INC., a Delaware corporation By: [name typed] Its: Date: , [Year of Agreement Date] Right-of-Way Use Agreement City of[Name of Municipality] :: Metricom, Inc. page 14 of 14 pearland2.doc [05mas28row98ua1] 03/09/99 10:23 AM " I DATE (MM/De/Y'/) ABe Insurance and Financial ~¥.~c~ ~' ~j~,~[~l HIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ~~-~.~ ~ ~-~ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE 301 Island Parkway I[\~ [~'~ ~ ~ I HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR Belmont CA 94002 - I ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. (650)598-0900 ~'~'~'~ ~'q~j-~{~[~ INSURERS AFFORDING COVERAGE INSURED Metricom, Inc. INSURERA: Groat Northern Insurance Company (Chubb) INSURERB: 333 W. Julian St. INSURER C: San Jose, CA 95110 INSURER D: INSURER E: COVERAGES THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NO3'~/ITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS. EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. GENERAL UAalLITY EACH OCCURRENCE 1.000,000 COM M ERCIAL GEN ERAL LIA~ILI~ 35291948 ug,,,~,00 09/30/01 FIRE DAMAGE (~y one fire) Included CLAIMSMADE ~-~ OCCUR MEeEXP(A~y~eperson) t0,000 PERSONAL & ADV INJURY 1,000,000 GENERAL AGGREGATE 2,gO0.000 GEN'L AGGREGATE LIMIT APPLIES PER' PRODUCTS - COMP/DP AGG 2,000,000 AUTOMOBILE MABILITY COMBINED SINGLE LIMIT ALL OWNED AUTOS BODILY INJURY HIREO AUTOS BODILY INJURY $ PROPERTY DAMAGE $ (Per ac~dent) GARAGE LIAelMTY AUTO ONLY - EA ACCIDENT $ ANYAUTO OTHERTHAN EAACC $ AUTO ONLY: AGG EXCESS LIA BlUT~f F-ACH OCCURRENCE ~ OCCUR ~'~ CLAIMS MADE AGGREGATE DEDUCTIBLE RETENTION $ EMPLOYER'S LIABIMTY WC STATU. O~ DP ERATION~LOCATIO N S^/EHICLESIEXC LUSIO N S ADDED aY ENDORSEMENT/SPECIAL PROVISIONS CERTIFICATE HOLDER I X I ADDITIONALINSURED;INSURERLETrER' CANCELLATION Ten Day Notice for Non-Payment MAIL __30.0_ DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE THE EXPIRATION DATE THEREOF, THE ISSUING INSURER WILL ENDEAVOR TO, LEFT= BUT FAILURE TO DO SO SHALL IMPOSE NO OBLIGATION OR LIABILITY OF ANY KiND UPON THE INSURER. ITS AGENTS OR REPRESENTATIVES. © ACORD CORPORATION 1988 IMPORTANT If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s), If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). DISCLAIMER The Certificate of Insurance on the reverse side of this form does not constitute a contract between the issuing insurer(s), authorized representative or producer, and the certificate holder, nor does it affirmatively or negatively amend, extend or alter the coverage afforded by the policies listed thereon. ~CORD 25-S (7/97) © ACORD CORPORATION 1988