R2000-092 08-14-00 RESOLUTION NO. R2000-92
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
PEARLAND, TEXAS, AUTHORIZING THE CITY MANAGER OR HIS
DESIGNEE TO ENTER INTO A SITE LEASE AGREEMENT WITH
METRICOM, INC. FOR THE PLACEMENT OF COMMUNICATIONS
EQUIPMENT ON CITY PROPERTY.
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS:
Section l. That certain funding agreement by and between the City of Pearland
and Metricom, Inc., 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 site lease agreement with Metricom, Inc. for the
placement of communications equipment on City property.
PASSED, APPROVED and ADOPTED this the ~.4 day of August
TOM REID
MAYOR
ATTEST:
~ACpiROVED AS TO FORM:
DARRIN M. COKER
CITY ATTORNEY
City of Pearland
City Water Tower
Site Lease Agreement
Metricom Site ID: HOU 0149
RECEIVED
/~lJ6 1 § 2000
WHALEN & COMPANY
TABLE OF CONTENTS
PAGE
1. Leased Premises ........................................................................................... 1
1
2. Rent ............................................................................................................
(a) Amount, Adjustments .......................................................................... 1
(b) Time of Payment, Taxes ..................................................................... 1
3. Governmental Approval Contingency .............................................. : ............. 2
(a) Tenant Application .............................................................................. 2
(b) Interference Study ............................................................................... 2
(c) Non-approval ....................................................................................... 2
4. Term and Renewals ............................................................................ : .......... 2
5. Tenant's Use .................................................................................................. 3
(a) User Priority ........................................................................................ 3
(b) Purposes .............................................. : .............................................. 3
(c) Construction, Deposit .......................................................................... 4
(d) Operation ............................................................................................ 4
(e) Maintenance, Improvement Expenses ................................................ 5
(f) Replacements ..................................................................................... 5
(g) Drawings ............................................................................................. 5
(h) No Interference ................................................................................... 5
(i) Access ............................................. , .................................................. 5
¢j) Payment of Utilities ............................................................................. 6
6. Additional Maintenance Expenses ................................................................. 6
7. Additional Facilities ........................................................................................ 6
8. Defense and Indemnification ......................................................................... 6
(a) General ................................................. : ............................................. 6
(b) Hazardous Materials ........................................................................... 7
(c) Tenant's Warranty ............................................................................... 7
9. Damage or Destruction .................................................................................. 7
10. Lease Termination ......................................................................................... 8
(a) Events of Termination ......................................................................... 8
(b) Notice of Termination .......................................................................... 8
(c) Tenant's Liability for Early Termination ............................................... 9
(d) Site Restoration ................................................................................... 9
PAGE
11. Insurance ..................................................................................................... 10
12. Limitation of Landlord's Liability ................................................................... 10
13. Temporary Interruptions of Service .............................................................. 10
14. Tenant Interference ..................................................................................... 11
(a) With Structure ................................................................................... 11
(b) With Higher Priority Users ................................................................. 11
(c) Interference Study - New Occupants ................................................ 11
(d) Interference - New Occupants .......................................................... 11
15. Assignment .................................................................................................. 12
16. Disputes ....................................................................................................... 12
17. Enforcement and Attorneys' Fees ................... : ............................................ 12
18. Notices ......................................................................................................... 12
19. Authority ....................................................................................................... 13
20. Binding Effect ............................................................................................... 13
21. Complete Lease; Amendments .................................................................... 13
22. Governing Law ............................................................................................. 13
13
23. Severability ..................................................................................................
24. Representations ........................................................................................... 13
25. Memorandum of Lease ................................................................................ 13
26. Counterparts .............................. i ................................................................. 14
SITE LEASE AGREEMENT
THIS SITE LEASE AGREEMENT ("Lease"), made this /~ dayofAugust, 2000,
between the City of Pearland, 3519 Liberty Drive, Pearland, Texas 77581 ("Landlord"),
and METRtCOM, INC., a Delaware corporation organized and existing under the laws of
Delaware ("Tenant").
For good and valuable consideration, the parties agree as follows:
1. Leased Premises. Subject to the terms and conditions of this Lease, Landlord
hereby leases to Tenant and Tenant leases from Landlord a portion of Landlord's property,
located at 3702 Alice, Pearland, Texas, County of Brazoria, State of Texas (hereinafter
"Landlord Property"), subject to any and all existing easements, and a portion of the
~ Water Tower or other structures ("Structure"), on which directional antennas,
connecting cables and appurtenances will be attached and located, the exact location of
each to be reasonably approved by Landlord's Director of Public Works, together with
appurtenant easements and access rights. A legal description of Landlord's Property is set
forth on Exhibit A hereto. The ground space on Landlord's Property, which measures
approximately In feet by !~)~ feet, together with the space on the
Structure, to be leased from Landlord by Tenant hereunder, together with appurtenant
utility easements and access easements, are hereinafter collectively referred to as the
"Leased Premises" and are more particularly described on Exhibit B hereto.
2. Rent.
(a) Amount, Adjustments. As consideration for this Lease, Tenant shall pay
Landlord rent in the amount of One Thousand Eight Hundred Thirty Five Dollars
($1,835.00) per month, from commencement of this lease through December 31, 2001.
Beginning January 1,2002, and on January 1 of each succeeding year, the rent shall be
increased by three and one half percent (3.5%) of the previous year's annualized rental.
(b) Time of Payment, Taxes. The rent shall be payable in quarterly installments
of Five Thousand Five Hundred Five Dollars ($5,505.00) each (the "Quarterly Payments").
The first Quarterly Payment of Rent (the "initial Payment") shall be payable within thirty
(30) days of the Commencement Date, prorated as appropriate. Subsequent Quarterly
Payments shall be payable on or before January 1, April 1, July 1, and October 1 of each
year. All payments due under this Lease shall be sent to Lessor's address indicated under
§ 18 below, to the attention of City of Pearland. In addition to the annual rental, Tenant
agrees to timely pay any taxes or payment in lieu of taxes required as a result of {his
Lease.
3. Governmental Approval Contingency.
(a) Tenant Application. Tenant's right to use the Leased Premises is expressly
made contingent upon its obtaining all the certificates, permits, zoning and other approvals
that may be required by any federal, state, or local authority. This shall include the
engineering study specified in Subparagraph 3(b) below on the Structure to be conducted
at Tenant's expense. Landlord shall cooperate with Tenant in its efforts to obtain and
retain such approvals and shall take no action which would adversely affect the status of
the Leased Premises with respect to the Tenant's proposed use thereof.
(b) Interference Study. Before obtaining a building permit, Tenant must pay for
the reasonable cost of (i) a radio frequency interference study analyzing whether Tenant's
intended use will interfere with any existing communications facilities and (ii)an
engineering study analyzing whether the Structure is able to support the Antenna Facilities,
as defined in Subparagraph 5(b), without prejudice to the City's current use of the
Structure. If the study finds that there is a potential for interference that cannot be
reasonably remedied, or for prejudice to the Structure which cannot be remedied by
reasonable structural modifications or upgrades, Landlord may terminate this Lease
immediately and refund the initial rental to Tenant. Any radio frequency interference study
conducted pursuant to this section shall be carried out by an independent and qualified
prefessional engineer, selected by Tenant, and approved by Landlord, which approval shall
not be unreasonably withheld, delayed, or conditioned.
(c) Non-approval. In the event that any application necessary under
Subparagraph 3(a) above is finally rejected or any certificate, permit, license, or approval
issued to Tenant is canceled, expires, lapses, or is otherwise withdrawn or terminated by
governmental authority so that Tenant, in its sole discretion, will be unable to use the
Leased Premises for its intended purposes, Tenant shall have the right to terminate this
Lease. Notice of Tenant's exercise of its right to terminate shall be given to Landlord in
writing by certified mail, return receipt requested, and shall be effective upon receipt of
such notice by Landlord as evidenced by the return receipt. Except as required under
Subparagraph 13(d) below, upon such termination, this Lease shall become null and void
and the parties shall have no further obligations to each other.
4. Term and Renewals. The "Initial Term" of this lease shall be ten (10) years
commencing on the date of execution of the site lease agreement (the "Commencement
Date") and ending on the tenth anniversary of the Commencement Date. Subject to the
terms and conditions of this Lease, Tenant shall have the right to extend this Lease for two
(2) additional five (5) year renewal periods ("Renewal Term") commencing on January 1
following the expiration date of the Initial Term or of any subsequent Renewal Term.
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This Lease shall be automatically renewed for each successive Renewal Term unless
either Landlord or Tenant sends written notice of non-renewal to the other no later than
ninety (90) days prior to the expiration of the Initial Term or any Renewal Term, such notice
provided in accordance with Paragraph 21 of this Lease.
5. Tenant's Use.
(a) User Priority. Tenant agrees that the following priorities of use, in descending
order, shall apply in the event of communication interference or other conflict while this
Lease is in effect, and Tenant's use shall be subordinate accordingly:
1. Landlord;
2. Public safety agencies, including law enforcement, fire, and ambulance
services, that are not part of the Landlord;
3. Other governmental agencies where use is not related to public safety; and
4. Govern ment-regulated entities whose antennae offer a service to the general
public for a fee, in a manner similar to a public utility, such as long distance
and cellular telephone, not including radio or television broadcasters.
Landlord agrees to use best efforts to accommodate Tenant's use of the Leased Premises
in conjunction with any of the higher priority uses specified in this Subparagraph 5(a), by
first requiring any later user of Landlord's Property and the Structure to attempt to place its
equipment in a manner which .will not interfere with Tenant's Antenna Facilities, and
second by allowing Tenant to reasonably relocate its Antenna Facilities on the Structure so
that all users are accommodated.
(b) Purposes. Tenant shall use the Leased Premises only for the purpose of
installing, maintaining, and operating a Landlord-approved wireless communications
facility, equipment, and uses incidental thereto for providing radio and wireless data
communications services which Tenant is legally authorized to provide to the public. This
use shall be non-exclusive, and Landlord specifically reserves theright to allowthe Leased
Premises to be used by other parties and to make additions, deletions, or modifications to
its own facilities on the Leased Premises, provided that with regard to any such addition,
deletion, or modification, to the Leased Premises, Landlord shall provide Tenant at least
ninety (90) days advance written notice of such work, and agrees to use best efforts to
minimize disruption to Tenant's Antennae Facilities during such work. Tenant's
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communications antenna facility shall consist of antennas at a Landlord-approved location,
along with cables and appurtenances connected to an accessory building or cabinet
located on the Leased Premises ("Antenna Facilities"). The Antenna Facilities are depicted
on Exhibit B attached hereto, and Landlord, by executing this Lease, hereby approves of
the Antenna Facilities and their location on Landlord's Property. Landlord acknowledges
that the Antenna Facilities shall include (without limitation) up to three (3) equipment
cabinets; up to sixteen (16) radios and antennas; and associated equipment, fixtures, and
cabling. Tenant shall comply with all applicable ordinances, statutes and regulations of
local, state and federal government agencies.
(c) Construction, Deposit. Tenant may erect and operate the Antenna Facilities
in accordance with Exhibit B. If Tenant seeks to increase the number of antennas beyond
the sixteen (16) antennae provided for in this Lease, it must first pay for an evaluation
carried out by a qualified professional, retained by Landlord demonstrating that (i) each
additional antenna will not interfere with existing antennas or with proposed antennas with
a higher priority and that (ii) any Structure can structurally support the additional antennas.
The cost of each evaluation must be paid by the Tenant within thirty (30) days after
receiving written notice of the cost. Landlord must consent to installation of additional
antennas, such consent will not be unreasonably withheld, delayed, or conditioned, tf
Landlord consents, the parties will negotiate the amount of additional rental for the
antennas.
Upon the commencement of this Lease, Tenant shall deposit with Landlord an
amount equal to two (2) months' rent, which shall be fully refunded to Tenant upon the
timely removal of the Antennas Facilities, and related equipment, the repair of the site and
the restoration of the Structure surface to the commercially reasonable satisfaction of the
Landlord. Landlord may use this deposit to complete work not done by Tenant as required
by this Lease, after notice of default provided to Tenant under Paragraph' 10(a)(i) below
and Tenant's failure to cure such default within the notice period specified therein. If the
deposit is not sufficient to cover all costs, Tenant must reimburse the Landlord for any
additional costs, within ten (10) days after Landlord's written demand. If Landlord uses any
of the deposit, Tenant must provide sufficient funds to replenish the deposit to the full
amount, within ten (10) days after receipt of Landlord's written notice.
(d) Operation. Tenant shall have the right, at its sole cost and expense, to
operate and maintain the Antenna Facilities on the Leased Premises in accordance with
good engineering practices, with all applicable FCC rules and regulations. Tenant's
installation of all Antenna Facilities shall be done according to plans approved by Landlord,
which approval shall not be unreasonably withheld. Any damage done to the Leased
Premises or other Landlord property including the Structure during installation or during
operations, shall be repaired at Tenant's expense within thirty (30) days after receipt of
notification of damage. The Antenna Faoilities shall remain the exclusive property of the
Tenant, unless otherwise provided in this Lease.
Tenant agrees to cooperate with the Landlord when the Landlord is performing
maintenance activities on the Structure, including reducing or interrupting transmissions
when work is being conducted directly in front of the antennas. Landlord agrees to
coordinate the timing of such maintenance activities with the Tenant and will attempt to
minimize adverse impacts on Tenant's operations.
(e) Maintenance, Improvement Expenses. All modifications to the Leased
Premises and all improvements made for Tenant's benefit shall be at the Tenant's expense
and such improvements, including antenna, facilities and equipment, shall be maintained in
a good state of repair, at least equal to the standard of maintenance of the Landlord's
facilities on or adjacent to the Leased Premises, and secured by Tenant. tf Tenant's
Antenna Facilities are mounted on the Structure they shall, at all times, be painted, at
Tenant's expense, the same color as the Structure.
(f) Replacements. Before the Tenant may update or replace the
Antenna Facilities, Tenant must notify and provide a detailed proposal to Landlord. Tenant
shall submit to Landlord a detailed proposal for any such replacement facilities and any
other information reasonably requested by Landlord of such requested update or
replacement, including but not limited to a technical study, carried out at Tenant's expense.
Landlord may not unreasonably withhold approval.
(g) Drawings. Unless duplicative of previous specifications or drawings
submitted to Landlord, Tenant shall provide Landlord with as-built drawings of the
equipment and improvements installed on the Leased Premises, which show the actual
location of all Antenna Facilities. Said drawings shall be accompanied by a complete and
detailed inventory of all equipment, personal property, and Antenna Facilities actually
placed on the Leased Premises.
(h) No Interference. Tenant shall, at its own expense, maintain any equipment
on or attached to the Leased Premises in a safe condition, in good repair and in a manner
suitable to Landlord so as not to conflict with the use of the surrounding premises by
Landlord. Tenant shall not unreasonably interfere with the operations of any prior tenant
using the Structure and shall not interfere with the working use of the water storage
facilities thereon or to be placed thereon by Landlord.
(i) Access. Tenant, at all times during this Lease, shall have access to the
ground portion of the Leased Premises in order to install, operate, and maintain its
Antenna Facilities and related equipment via a separate gate to a separately fenced
enclosure. Access to the water tower shall be only when accompanied by a City
representative, provided however that the City shall make a representative available, if
needed, seven (7) days a week, twenty-four (24) hours a day, as required by Tenant. If
such access is not during normal working hours, Tenant shall pay the related personnel
5
costs of the City. In the event of emergency, and provided Tenant has made good faith
effort to contact City personnel, and further provided that such good faith effort has failed,
in that event Tenant shall be entitled to access the water tower without being accompanied
by a City representative.
¢j) Payment of Utilities. Tenant shall separately meter charges for the
consumption of electricity and other utilities associated with its use of the Leased Premises
and shall promptly pay all costs associated therewith. Tenant shall be entitled to install,
and shall pay for any utilities and services required for the Antenna Facilities. Landlord
shall provide Tenant, at Tenant's cost, with such reasonable assistance as is necessary to
enable Tenant to arrange for such utilities and services.
6. Additional Maintenance Expenses. Upon notice from Landlord, Tenant shall
promptly pay to Landlord all additional Landlord expenses incurred in maintaining the
Leased Premises, including painting or other maintenance of the Structure, that are a
direct result of Tenant's occupancy of the Leased Premises.
7. Additional Facilities. Tenant acknowledges that Landlord may permit additional
facilities to be constructed on the property described in Exhibit A. At such time as this may
occur, Tenant will permit said facilities to be placed immediately adjacent to Tenant's
facilities and will allow "attachments" to its building so as to give the appearance that all
facilities are connected. Said attachments will be made at no cost to Tenant and will not
cempromise the structural integrity, safety, or functionality of Tenant's facilities.
Notwithstanding the foregoing, Landlord acknowledges that the ground level Antenna
Facilities to be installed by Tenant consist predominately of a raised equipment platform
and one or more equipment cabinets. Landlord further acknowledges that each equipment
cabinet requires for reasons of safety a minimum distance in separation from other
structures, and Landlord agrees that neither Landlord not any other tenant on Landlord's
Property shall be entitled to affix any structure or equipment to any part of Tenant's
equipment cabinets.
8. Defense and Indemnification.
la) General. Tenant agrees to defend, indemnify and hold harmless Landlord
and its elected officials, officers, employees, agents, and representatives, from and against
any and all claims, costs, losses, expenses, demands, actions, or causes of action against
Landlord, including reasonable attorneys' fees and other costs and expenses of litigation,
which may be asserted against or incurred by Landlord or for which Landlord may be liable
arising out of the installation, operation, use, maintenance, repair, or removal of the
Antenna Facilities, except those which arise solely from the negligence, willful misconduct,
or other fault of Landlord. Tenant shall defend all claims against Landlord arising out of the
installation, operation, use, maintenance, repair, removal, or presence of Tenant's Antenna
Facilities, equipment and related facilities on the Leased Premises.
6
(b) Hazardous Materials. Without limiting the scope of Subparagraph 8(a)
above, Tenant will be solely responsible for and will defend, indemnify, and hold Landlord,
its agents, and employees harmless from and against any and all claims, costs, and
liabilities, including attorney's fees and costs, arising out of or in connection with the
cleanup or restoration of the Leased Premises as a direct result of Tenant's use of
Hazardous Materials in violation of applicable laws, regulations or ordinances governing
Hazardous Materials. For purposes of this Lease, "Hazardous Materials" shall be
interpreted broadly and specifically includes, without limitation, asbestos, fuel, batteries or
any hazardous substance, waste, or materials as defined in any federal, state, or local
environmental or safety law or regulations including, but not limited to, CERCLA. Landlord
represents, warrants and agrees (1)that neither Landlord nor, to Landlord's knowledge,
any third party has used, generated, stored or disposed of, or permitted the use,
generation, storage or disposal of, any Hazardous Materials on, under, about or within
Landlord's Property or the Structure in violation of any law or regulation, except as
disclosed herein, and (2) that Landlord will not, and ~vill not permit any third party to use,
generate, store or dispose of any Hazardous Materials on, under, about or within
Landlord's Property or the Structure in violation of any law or regulation.
(c) Tenant's Warranty. Tenant represents and warrants that its use of the
Leased Premises will not generate and Tenant will not store or dispose of on the Leased
Premises, nor transport to or over the Leased Premises, any Hazardous Materials, unless
Tenant specifically informs Landlord thereof in writing twenty-four hours prior to such
storage, disposal or transport, or otherwise as soon as Tenant becomes aware of the
existence of Hazardous M~terials on the Leased Premises. The obligations of this
Paragraph 8 shall survive the expiration or other termination of this Lease for a period of
two (2) years thereafter. Notwithstanding the foregoing, Tenant shall not be required to
notify Landlord as to the presence of any Hazardous Materials that may be found in
self-contained batteries for emergency power, and in ordinary cleaning solutions, and
similar kinds of "Hazardous Materials" as are commonly used in connection with operating
and maintaining a wireless data communications facility. Tenant warrants that its storage
and use of such materials shall be in accordance with all applicable laws, regulations and
ordinances governing the use, storage and disposal thereof.
9. Damage or Destruction. If the Leased Premises is destroyed or damaged, without
contributory fault of the Tenant or its agents, so as, in Tenant's judgment, to hinder its
effective use of the Antenna Facilities, Tenant may elect to terminate this Lease upon thirty
(30) days' written notice to Landlord. In the event Tenant elects to terminate the Lease,
Tenant shall be entitled to reimbursement of prepaid rent covering the period subsequent
to the date of damage to or destruction of the Leased Premises.
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10. Lease Termination.
(a) Events of Termination. Except as otherwise provided herein, this Lease may
be terminated by either party upon sixty (60) days' written notice to the other party as
follows:
(i) by either party upon a default of any covenant or term hereof by the
other party, which default is not cured within sixty (60) days of receipt of written
notice of default to the other party (without, however, limiting any other rights of the
parties pursuant to any other provisions hereof); provided that if such default is not
curable within sixty (60) days, the Lease shall not terminate if the defaulting party
commences such cure within sixty (60) days and diligently prosecutes such cure to
completion;
(ii) by Tenant for cause if it is unable to obtain or maintain any license,
permit or other governmental approval necessary for the construction and/or
operation of the Antenna Facilities or Tenant's business;
(iii) by Tenant for cause if the Leased Premises is or becomes
unacceptable for technological reasons under the Tenant's Antenna Facilities
design or engineering specifications or the communications systems to which the
Antenna Facilities belong;
(iv) by Landlord, if its Council decides, for reasons of public necessity, to
redevelop the Leased Premises and/or discontinue use of the Structure for all
purposes; provided that termination under this section §10(a)(iv) shall require not
less than eighteen (18) months prior written notice to Tenant; and further provided
that Landlord shall not terminate this Agreement for mere convenience unrelated to
a necessary governmental function; neither shall Landlord terminate this Agreement
to accommodate any other private-sector wireless communications facility or
communications service provider. Examples of public necessity, justifying
termination of this Agreement by Landlord, shall include (but not be limited to): the
sale of the water tower; replacement of the water tower with a new tower at the
same site; demolition of the tower; and any other public necessity which causes the
tower to cease to be used for a public purpose.
(v) by Landlord if it determines that the Structure is structurally unsound,
including, but not limited to, consideration of age of the Structure, or damage or
destruction of all or part of the Structure on the Leased Premises from any source,
(vi) by Landlord if it determines that a potential user with a higher priority
under Subparagraph 4(a) above, despite best efforts, cannot find another adequate
8
location, or the Antenna Facilities unreasonably interfere with another user with a
higher priority, regardless of whether or not such an interference was predicted in
the initial interference study that was part of the application process; provided that
Tenant has been given a good faith opportunity to relocate its Antenna Facilities in a
' manner that will cure any interference; or
(vii) by Landlord if it determines that Tenant has failed to comply with
applicable ordinances, or state or federal law, or any conditions attached to
government approvals granted thereunder, after a public hearing before the
Landlord's Council; provided, however, that Tenant has first been given notice of
any non-compliance and an opportunity to cure any non-compliance in accordance
with §10(a)(i) above.
(b) Notice of Termination. The parties shall give notice of termination in writing
by certified mail, return receipt requested. Such notice shall be effective upon receipt as
evidenced by the return receipt. All rentals paid for the Lease prior to said termination date
shall be retained by Landlord.
(c) Tenant's Liability forEarly Termination. If Tenant terminates this Lease other
than of right as provided in this Lease, Tenant shall pay to Landlord as liquidated damages
for early termination, an amount equal to six (6) months' Rent at the then effective rate,
unless Tenant terminates during the last year of any Term under Paragraph 4, in which
event Tenant shall only be liable for the unpaid balance of the annual rent remaining in the
then current Term of the Lease.
(d) Site Restoration. In the event that this Lease is terminated or not renewed,
Tenant shall have 60 days from the termination or expiration date to remove its
Antenna Facilities, and related equipment from the Leased Premises, repair the site and
restore the surface of the Structure to the condition existing on the Commencement Date,
reasonable wear and tear excepted. In the event that Tenant's Antenna Facilities, and
related equipment are not removed within such sixty (60) day period to the reasonable
satisfaction of the Landlord, they shall be deemed abandoned and become the property of
the Landlord and Tenant shall have no further rights thereto. In addition, Landlord may use
the deposit required in paragraph 5(e) to complete the proper removal and restoration.
Tenant has notified the Landlord that the following entities have an interest in the Antenna
Facilities and related equipment because of financing arrangements: NONE
If Landlord removes the Antenna Facilities or related equipment, Landlord must give written
notice to the above entities and to Tenant at the addresses provided, informing them that
Antenna Facilities or related property have been removed and will be deemed abandoned
if not claimed and the storage fees and other reasonable costs paid within 30 days.
(e) If Landlord terminates this Agreement for public necessity, Landlord will use
reasonable efforts to assist Tenant in the relocation of its facilities to a comparable site.
(f) If Landlord abandons the use of the tower for public purposes, but the water
tower is not sold or demolished and is at the time of abandonment structurally sound, this
Agreement will continue in full force and effect until such time as the tower is sold or
demolished or becomes structurally unsound.
11. Insurance. Tenant at its own cost shall obtain and maintain at all times during the
term of this Lease Commercial General Liability insurance including contractual liability,
protecting Landlord in an amount not less than One Million Dollars ($1,000,000) each
occurrence and in an amount not less than One Million Dollars ($1,000,000) annual
aggregate. Such insurance policy shall name the Lessor as an additional insured as
respects liability arising out of and in connection with the presence of the Antenna Facilities
at the Leased Premises. Such coverage shall not be canceled or materially altered to
reduce the policy limits until the Lessor has received at least thirty (30) days' advance
written notice of such cancellation or change. Tenant shall be responsible for notifying the
Landlord of such change or cancellation. Such insurance policy shall contain a severability
of interest clause.
12. Limitation of Landlord's Liability. If Landlord terminates this Lease other than as
of right as provided in this Lease, or Landlord causes interruption of the business of Tenant
or for any other Landlord breach of this Lease, Landlord's liability for damages to Tenant
shall be limited to the actual and direct costs of equipment removal and relocation, or
repair, as appropriate, and shall specifically exclude any recovery for value of the business
of Tenant as a going concern, future expectation of profits, loss of business or profit or
related damages to Tenant, except to the extent caused by the gross negligence or willful
misconduct of Landlord, its agents, employees, or contractors.
13. Temporary Interruptions of Service. If Landlord determines that continued
operation of the Antenna Facilities would cause or contribute to an immediate threat to
public health and/or safety (except for any issues associated with human exposure to radio
frequency omissions, which is regulated by the federal government), Landlord may order
Tenant to discontinue its operation. Tenant shall immediately comply with such an order.
Service shall be discontinued only for the period that the immediate threat exists. If
Landlord does not give prior notice to Tenant, Landlord shall notify Tenant as soon as
possible after its action and give its reason for taking the action. Landlord shall not be
liable to Tenant or any other party for any interruption in Tenant's service or interference
with Tenant's operation of its Antenna Facilities, except as may be caused by the gross
negligence or willful misconduct of the Landlord, its employees or agents. If the
discontinuance extends for a period greater than three days, either consecutively or
cumulatively, Tenant shall have the right to terminate this Lease within its sole discretion
for cause and without payment of the early termination fee.
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14. Tenant Interference
(a) With Structure. Tenant shall not interfere with Landlord's use of the Structure
and agrees to cease all such actions which unreasonably and materially interfere with
Landlord's use thereof no later than five (5) business days after receipt of written notice of
the interference from Landlord. In the event that Tenant's cessation of action is material to
Tenant's use of the Leased Premises and such cessation frustrates Tenant's use of the
Leased Premises, within Tenant's sole discretion, Tenant shall have the immediate right to
terminate this Lease for cause and without payment of the early termination fee.
(b) With Higher Priority Users. If Tenant's Antenna Facilities cause
impermissible interference with higher priority users above or with pre-existing tenants, as
set forth in under Subparagraph 5(a), with respect to equipment installed by such tenants
prior to the Commencement Date, Tenant shall take all measures necessary to correct and
eliminate the interference. If the interference cannot be eliminated within five (5) business
days after receiving Landlord's written notice of the interference, Tenant shall immediately
thereafter cease operating its Antenna Facilities and shall not reactivate operation, except
intermittent operation for the purpose of testing, until the interference has been eliminated.
In the event that the Interference cannot be cured within a reasonable period of time, and
in the event that Tenant's cessation of operations is material to Tenant's use of the Leased
Premises and such cessation frustrates Tenant's use of the Leased Premises, within
Tenant's sole discretion, Tenant shall have the immediate right to terminate this Lease for
cause and without payment of the early termination fee.
(c) Interference Study - New Occupants. Upon written notice by Landlord that it
has a bona fide request from any other party to lease an area including or in close
proximity to the Leased Premises ("Leased Premises Area"), Tenant agrees to provide
Landlord, within sixty (60) days, the radio frequencies currently in operation or to be
operated in the future of each transmitter and receiver installed and operational on the
Leased Premises at the time of such request. Landlord may then have an independent,
registered professional engineer of Landlord's choosing perform the necessary interference
studies to determine if the new applicant's frequencies, operations, and power output levels
will cause harmful radio interference to Tenant. Landlord shall require the new applicant to
pay for such interference studies, unless the Landlord or other higher priority user requests
the use. In that event, the Landlord or other higher priority user requesting the use of the
premises, and Tenant and all other tenants occupying Landlord's Property, shall share the
cost of performing the necessary interference studies, on a pro rata basis.
(d) Interference - New Occupants. Landlord agrees that it will not grant a future
lease on Landlord's Property to any party who is of equal or lower priority to Tenant, if such
party's use is reasonably anticipated to interfere with Tenant's operation of its Antenna
Facilities. Landlord agrees further that any future lease of Landlord's Property orthewater
tower structure will prohibit a user of equal or lower priority ~from interfering with Tenant's
Antenna Facilities. Landlord agrees that it will require any subsequent occupants of
Landlord's Property or the structure of equal or lower priority to Tenant to provide Tenant
these same assurances against interference. Landlord shall have the obligation to
eliminate any interference with the operations of Tenant caused by such subsequent
occupants. If such interference is not eliminated, Tenant shall have the right to terminate
this Lease for cause and without payment of the early termination fee, or seek injunctive
relief against the interfering occupant~ at Tenant's expense. Ail interference claims shall be
resolved in accordance with the then prevailing interference rules and regulations of the
FCC.
15. Assignment. The transfer of the rights and obligations of Metricom to a parent,
subsidiary, or other affiliate of Metricom, or to any successor in interest or entity acquiring
fifty-one percent (51%) or more of Metricom's stock or assets, shall not be deemed an
assignment. As to other parties, this Lease may not be sold, assigned, or transferred
without the written consent of the Landlord, such consent not to be u n reasonably withheld,
delayed, or conditioned. Landlord hereby consents to the assignment by Tenant of its
rights under this Lease as collateral to any entity which provides financing for the purchase
of the equipment to be installed at the Leased Premises.
16. Disputes. Any claim, controversy or dispute arising out of this Lease not resolved
within ten (1 0) days following notice of the dispute, shall be submitted first and promptlyto
mediation. Each party shall bear its own costs of mediation. If mediation does not result in
settlement within forty-five (45) days after the matter was submitted to mediation, either
party may file a claim in arbitration in accordance with the applicable rules of the American
Arbitration Association. The award rendered by the arbitrator may be entered as a
judgment in any court having jurisdiction thereof. The arbitration shall be conducted in the
county where the Leased Premises is located. Arbitration shall be the exclusive remedy of
the parties.
17. Enforcement and Attorneys' Fees. In the event that either party to this Lease
shall bring a claim in arbitration to enforce any rights hereunder, the prevailing party shall
be entitled to recover costs and reasonable attorneys' fees incurred as a result of such
claim.
18. Notices. All notices hereunder must be in writing and shall be deemed validly given
if sent by certified mail, return receipt requested, or reliable overnight courier addressed as
follows (or any other address that the party to be notified may have designated to the
sender by like notice):
12
If to Landlord, to:
City of Pearland
3519 Liberty Drive
Pearland, Texas 77581
Attention: City Manager
If to the Tenant, to:
Metricom, Inc.
Attn: Network Real Estate
980 University Avenue
Los Gatos, CA 95032
19. Authority. Each ofthe individuals executing this Lease on behalf of the Tenant or
the Landlord represents to the other party that such individual is authorized to do so by
requisite action of the party to this Lease.
20. Binding Effect. This Lease shall run with Landlord's Property. This Lease shall
extend to and bind the heirs, personal representatives, successors and assigns of the
parties hereto.
21. Complete Lease; Amendments. This Lease constitutes the entire agreement and
understanding of the parties and supersedes all offers, negotiations, and other agreement
of any kind. There are no representations or understandings of any kind not set forth
herein. Any modification of or amendment to this Lease must be in writing and executed
by both parties.
22. Governing Law. This Lease shall be construed in accordance with the laws of the
State of Texas.
23. Severability. If any term of this Lease is found to be void or invalid, such invalidity
shall not affect the remaining terms of this Lease, which shall continue in full force and
effect.
24. Representations. Landlord represents and agrees (a) that Landlord is the owner in
fee of Landlord's Property and Leased Premises and (b) that Tenant shall have access to
and quiet enjoyment of Landlord's Property and Leased Premises at all times throughout
the Initial Term of this Lease and any renewal term, so long as Tenant is not in default
beyond the expiration of any applicable cure period.
25. Memorandum of Lease. Upon Tenant's request, Landlord agrees to execute a
Memorandum of Lease, in the form attached hereto as Exhibit C and incorporated herein
by reference and acknowledges that Tenant may record such Memorandum of Lease in
the official records of the county where Landlord's Property is located. If a Memorandum
of Lease is in fact recorded, upon termination of this Lease, Tenant agrees to execute and
record a quitclaim deed or such other document as may reasonably be required by
Landlord or a title company to evidence the termination of Tenant's rights in Landlord's
Property and the Leased Premises.
26. Counterparts. This Lease may be executed in one or more counterparts, each of
which shall be deemed an original and all of which together shall constitute one and the
same instrument. A copy of this Lease bearing the signature of a party which is
transmitted by facsimile shall have the same legal effect as the personal delivery of a copy
of this Lease bearing an original signature.
IN WITNESS WHEREOF, the parties hereto have set their hands and affixed their
respective seals the day and year first above written.
CITY OF PEARLAND, LANDLORD
Glen 'R. Er~vin
City Manager
METRICOM, INC., a Delaware corporation,
""'-""'"'"
~_ .- . -;'..
Prin'~d - :D~cK L. Au :::"'"'"
VICE PRESIDENT
CORPO~AT£
Title
Approved As To Form
ROW Legal Department
By: ~/¢~t
Date: ~V~ v',
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California }
County of Santa Clara }
On November 8, 2000, before me, Anthony E. Rodriguez, Notary Public , personally
appeared Dick L. Au , personally known to me to be the person whose name is
subscribed to the within instrument and acknowledged to me that he executed the same in
his authorized capacity and that by his signature on the instrument the person, or the
entity upon behalf of which the person acted, executed the instrument.
~'"-_j.~ comm~lon # 1195246 [ WITNESS my hand and official seal
~ ~ Notc~ PubliC- Collfomla ~
J ........... -.El.
Place Notary Seal Above Signature of Nc~rl~ublic
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document and could
prevent fraudulent removal and reattachment to another document
Description of Attached Document
Title or Type of Document:
Document Date: Number of Pages:
Signer(s) Other Than Named Above:
Capacity (les) Claimed by Signer
Signer's Name: Top of Thumb Here
[] Individual
[] Corporate Officer
[] Partner- [] Limited [] General
[] Attorney in Fact
[] Trustee
E]~ Guardian or Conservator
Other:
i i
Signer is Representing:
STATE OF T6~A-~ §
COUNTY OF ~ ¢.~'~¢¢ ~-~ f~ §
BEFORE ME, the undersigned Notaw Public, on this day personally appeared
~ ~. ~r~;~ , known to me to be the person whose name is
subscribed to the foregoing instrument and acknowledged to me that he/she executed the
same for the purposes and consideration therein expressed.
GIVEN UNDER MY HAND AND SEAL OF OFFICE THIS ~k DAY OF
~a~¢ , A.D., 20 ~O
~OTARY ~U~IC, STAT~ OF
~rinteO ~ame: ~i~* ~ .~0
My Commission Expires: ~/~ ]03
STATE OF §
COUNTY OF §
BEFORE ME, the undersigned Notary Public, on this day personally appeared
, known to me to be the person whose name is
subscribed to the foregoing instrument and acknowledged to me that he/she executed the
same for the purposes and consideration therein expressed.
GIVEN UNDER MY HAND AND SEAL OF OFFICE THIS DAY OB:.:.:.:-:.:.:.:
A.D. 20__
NOTARY PUBLIC, STATE OF TEXAS-' '-'-'-'-'-'-'-'
Printed Name:
My Commission Expires:
EXHIBIT A
This Exhibit is attached to that certain Lease Agreement dated as of ,2000, by and
between METRICOM, INC., as Lessee, and the City of Peadand, Texas, as Lessor, and references
all of that certain real property situate in the City of Pearland, County of Brazoria, State of Texas,
described as follows:
SURFACE ESTATE ONLY IN AND TO:
A 0.499 acre tract of land out of the 19.9491 acre tract out of Lot Forty-eight (48) of the Zychiinski
Subdivision, H.T. & B.R.R. Co. Survey, Section 2, Abstract 542, Brazoria County, Texas, and being
more particularly described as follows:
BEGINNING at a 1/2 inch iron pipe at the northeast corner of the aforementioned 19.9491 acre
tract;
Thence South along the east line of said 19.9491 acre tract a distance of 210.00 feet to a 1/2 inch
iron rod for corner;
Thence N 89° 47' W a distance of 103.41 feet to a 1/2 inch iron rod for corner.
Thence North a distance of 210.00 feet to a 1/2 inch iron rod for corner in the north line of said
19.9491 acre tract;
Thence S 89° 47' E along the north line of said 19.9491 acre tract a distance of 103.41 feet to the
PLACE OF BEGINNING and containing 0.499 acre of land, more or less.
SAVE AND EXCEPT this conveyance is made and accepted subject to:
a. A Ten foot (10') utility easement along the North side of the above described property, as
shown in instruments recorded in Volume 1508, Page 322, and Volume 1508, Page 775,
Deed Records of Brazoria County, Texas.
b. One-half (1/2) mineral interest, the royalties, bonuses, rentals and all other rights in
connection with said interest, as conveyed to or reserved by Willaert vs. Willaert in
instrument recorded in Volume 227, Page 586 of the Deed Records of Brazoria County,
Texas, reference to which instrument is here made for all purposes.
c. One-half (1/2) mineral interest, the royalties, bonuses, rentals, and ail other rights in
connection with said interest, as conveyed to or reserved by Oscar J. Willaert in instrument
recorded in Volume 786, Page 464 of the Deed Records of Brazoria County, Texas,
reference to which instrument is here made for all purposes.
d. Oil and Gas Lease as described in instrument to A. C. Felt, as Lessee, recorded in Volume
680, Page 9 of the Deed Records of Brazoria County, Texas.
e. This conveyance is further made and accepted subject to any and all conditions,
restrictions, reservations, covenants, and easements, if any, relating to the hereinabove
described property, to the extent, and only to the extent that the same may still be in force
and effect, shown of record in the County Clerk's Office of Brazoria County, Texas.
ADDENDUM TO CITY OF PEARLAND
SITE LEASE AGREEMENT
WITH METRICOM, INC.
(Exhibit "A" to Resolution No. R2000-121)
This Agreement is entered into this ,//~ day of ,~,.~ .~,5 ~ ,2000, by and between the
CITY OF PEARLAND, BRAZORIA COUNTY, TEXAS (hereinafter "City") and METRICOM, INC.
(hereinafter "Metricom"). .
WHEREAS, a Site Lease Agreement has been executed between City and Metricom for placement
of antennae on the City's Alice Road Water Tower; and
WHEREAS, Section 10(c) of the Agreement incorrectly states the tenant's liability for early
termination; and
WHEREAS, Metricom and City both desire to amend the agreement by adding mutually agreeable
language with respect to Metricom's liability for eady termination.
WITNESSETH:
NOW THEREFORE, in consideration of the foregoing premises and other good and valuable
consideration, the receipt of which is hereby acknowledged, it is hereby agreed as follows:
1. Section 10(c) of the agreement is amended to read as follows:
"10(c). Tenant's Liability for Early Termination. If Tenant terminates this Lease other
than of right as provided in this Lease, Tenant shall pay to Landlord as liquidated damages
for early termination, an amount equal to six (6) months' Rent at the then effective rate,
unless Tenant terminates during the last six (6) months of any Term under Paragraph 4, in
which event Tenant shall only be liable for the unpaid balance of the annual rent remaining in
the then current Term of the Lease."
2. The effect of this Addendum is limited to the terms above and all other terms of the original
Agreement endure as previously agreed. This Agreement may only be amended, modified,
or supplemented by written agreement and signed by all parties.
3. Resolution No. R2000-121 shall be incorporated herein and made a part of this Agreement
for all purposes.
In witness whereof, the parties have hereunto set their hands and signatures on the date first above
mentioned.
M E~IC~C.
Approved As To Form Printed Name:J] I I~J( I AU
Title: VI CE PRESIBENT
ROW Legal Department CORPORATE
t
Date:
ATTEST: CITY OF PEARLAND, TEXAS
a Texas municipal corporation
2
STATE OF TEXAS §
COUNTY OF "~ra ~o~ ~ §
BEFORE ME, the undersigned Notary Public, on this day personally appeared
~ ~'~ 1~. f~&u.~'l.t~' , known to me to be the person whose name is subscribed to the
-: foregoing instrument and acknowledged to me that he/~,t~e executed the same for the purposes and
consideration therein expressed.
GIVEN UNDER MY HAND AND SEAL OF OFFICE THIS "~ $*" DAY OF
~)0-,'4r~ ~'¢,~ , A.D., 2000
Notary Public, ~{ate of Texas
- Printed Name:
My Commission Expires: 9/~-1/~)-~
STATE OF TEXAS §
COUNTY OF §
BEFORE ME, the undersigned Notary Public, on this day personally appeared
, known to me to be the person whose name is subscribed to the
foregoing instrument and acknowledged to me that he/she executed the same for the purposes and
consideration therein expressed.
GIVEN UNDER MY HAND AND SEAL OF OFFICE THIS DAY OF
, A.D., 20__
Notary Public, State of Texas
Printed Name:
My Commission Expires:
3
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California }
County of Santa Clara }
On November 8, 2000, before me, Anthony E. Rodriguez, Notar7 Public , personally
appeared Dick L. Au ., personally known to me to be the person whose name is
subscribed to the within instrument and acknowledged to me that he executed the same in
his authorized capacity and that by his signature on the instrument the person, or the
entity upon behalf of which the person acted, executed the instrument.
WITNESS my h
~ ~r~,'~x Comm~ion ii 119524~ · and and official seal
Place Notary Seal Above Sifdaatur lic
oP'rlONAI.
Though the information be/ow is not required by law, it may prove valuable to persons relying on the document and could
prevent fraudulent removal and reattachment to another document
Description of Attached Document
Title or Type of Document:
Document Bate: Number of Pages:
Signer(s) Other Than Named Above:
Capacity (les) Claimed by Signer
Signer's Name: Top of Thumb
[] Individual
[] Corporate Officer
[] Partner - [] Limited [] General
[] Attorney in Fact
[] Trustee
[] Guardian or Conservator
[] Other:
Signer is Representing:
RECEIVED
ricoche
July 25, 2000
City Secretary
3519 Liberty Drive
Pearland, TX 77581
RE: Agreement between Pearland, TX and_Metricom dated 4/19/99.
Metricom's address for notice has changed. Metricom has moved its Corporate Offices from
Los Gatos, California to San Jose, Califomia. As of July 27, 2000, any notices served upon
Metricom shall be delivered to the following address:
Metricom, Inc.
333 W. Julian Street
San Jose, CA 95110
Attn: Government and Utility Contracts Administration
Main Number: 408-282-3000
Please update your records.
Thank you,
~Linda Wallace
Contracts Manager
408- 282-3257
Metricom, Inc., 980 University Avenue, Los Gatos, CA 95032, Phone.408.399.8200, Fax,408.354.1024
ricochet'
December 6, 2000
City of Pearland
3519 Liberty Drive
Attn: City Manager
Pearland, TX 77581
Re: Wireless Communications Facilities Lease with Metricom, Inc.
Dear Madame or Sir:
Please take notice that Metricom, Inc. has recently moved its corporate offices to a new
location. The new mailing address for Metricom is:
Metricom, Inc.
333 West Julian Street
San Jose, CA 95111
Attention: Property Management
Please send all relevant correspondence to this new address. As always, Metricom is
dedicated to providing you with the best service possible. I will be the main contact for
the administration of our agreement. Should you have any questions or concerns, please
feel free to call me at (408) 282-3383.
Tara Evans
Property Administrator
Me corn, nc, 333 Wes Ju an St eet, San Jose, CA 95110, Phone.408.282.3000, Fax.408.282.3001
Darrin M. Coker Nghiem V, Doan
City Attorney Assistant City Attorney
Telephone (281) 652-1678 Telephone (281) 652-1665
Telecopier (281) 652-1679 Telecopier (281) 652-1679
Lisa D. Jones
Paralegal
Telephone (261) 652-1664
Telecopier {281) 652-1679
July 10, 2001
Metricom
Varun Pathria MS5295
333 West Julian Street
San Jose, California 95110
Re: General Release and Termination Agreement -
Communication Facility Lease (HOU0149) by and between City of Pearland
and Metricom, Inc., for property located at 3702 Alice
Dear Sir/Madam:
Please find enclosed one fully executed original of the above-referenced document. Please
contact Darrin Coker, City Attorney, at (281) 652-1678 if there are any questions.
Sincerely,
Lisa D. Jones
/ldj
Enclosure
3519 LIBERTY DRIVE · PEARLAND, TEXAS 77581 · (281)485-2411 · www.ci.pearland.tx.us
GENERAL RELEASE AND TERMINATION AGREEMENT
This General Release and Termination Agreement ("Agreement") dated May 24, 2001 by and
between the City of Pearland, ("Releasor"), and METRICOM, INC., a Delaware corporation,
("Releasee"). In consideration of the promises made herein, Releasor and Releasee agree as follows:
1. Releasee wishes to terminate the Communication Facility Lease ("Lease") dated August, 2000
and entered into by and between Releasor and Releasee.
2. Releasor, on behalf of itself, its successors and assigns, and in consideration of payment in the
amount of five thousand five hundred and five Dollars ($5505.00) hereby RELEASES, ACQUITS,
AND FOREVER DISCHARGE Releasee, and its agents, servants, successors, adjustors, attorneys,
heirs, executors, administrators and all other persons, firms, corporations, associations, or
partnerships of and from any and all CLAIMS, ACTIONS, CAUSES OF ACTION, DEMANDS,
RIGHTS, DAMAGES, COSTS, LOSS OF SERVICE, LOSS OF USE, EXPENSES AND
COMPENSATION WHATSOEVER, has been sustained, or may be sustained, or in any way
relating to the Lease, or any breach or alleged breach of the Lease.
3. Releasor acknowledges and agrees that this Release applies to any and all claims that Releasor
may have against Releasee arising out of the Lease for damages, or losses, whether those damages or
losses are known or unknown, foreseen or unforeseen, or patent or latent.
4. It is further understood and agreed that Releasor hereby EXPRESSLY RELEASES Releasee from
any and all CLAIMS, ACTIONS, CAUSES OF ACTION, DEMANDS, RIGHTS, DAMAGES,
COSTS, LOSS OF SERVICE, LOSS OF USE, EXPENSES AND COMPENSATION
WHATSOEVER, which Releasor does not know or suspect to exist in his favor at the time of
executing this release, which if known by him must have materially affected his settlement with the
Releasee. It is further tmderstood and agreed that all rights under any statute which states that any
release does not include the claims stated in the section are hereby EXPRESSLY WAIVED.
Releasor understands and acknowledges that the significance and consequence of this waiver is that
even if Releasor should eventually suffer additional damages arising out of the above described
transaction, Releasor will not be permitted to make any claim for those damages. Furthermore,
Releasor acknowledges that it intends these consequences even as to el/rims for damages that may
exist as of the date of this Release but which Releasor does not know exist, and which, if known,
would materially affect Releasor's decision to execute this Release, regardless of whether Releasor's
lack of knowledge is the result of ignorance, oversight, error, negligence, or any other cause.
5. Releasor and Releasee agree that the agreement is terminated as of May 30, 2001. Both parties
represent and warrant that they have not sold, assigned, or otherwise transferred any of the claims
released by the Agreement.
6. Release and its consequences have been completely read and explained to Releasor by an
1
attomey, and that Releasor fully understands the terms of this Release.
7. Releasor acknowledges and represents that it has been apprised of all relevant information and
data relevant to its claim and this Release. Releasor further acknowledges and represents that, in
executing this Release, it has not relied on any inducements, promises, or representations made by
Releasee or any party representing or serving Releasee, and that this Release contains the entire
agreement between the parties hereto, and that the terms of this Release are contractual and not mere
recital.
8. Releasor acknowledges and warrants that its execution of this Release is free and voluntary.
9. It is understood and agreed that this settlement is a compromise of a disputed claim, and that the
payment made is not to be construed as an admission of liability on the part of Releasee, and that
said Releasee deny liability therefore and intend merely to avoid litigation and buy their peace.
I0. Neither party shall disclose any information set forth in this Agreement nor disseminate or
distribute this Agreement or any information concerning the terms, covenants, or conditions hereof
to any person, firm, or entity that is a landlord of Metricom, Inc. or who is directly or indirectly
associated in any way with a landlord of Metricom other than a prospective transferee of a party's
interests hereunder, without first obtaining the express written approval of the other party; provided
however that either party may disclose the contents of this Agreement to any (i) of its directors,
officers, employees, lawyers, accountants, or other third-party consultants or professionals whose
responsibilities require access to such information; (ii) lender, investor, or other person to whom
financial statements are provided; or (iii) in response to any legally binding demand for disclosure
pursuant to court order or from any other properly constituted legal authority.
11. This Release may be executed in one or more counterparts, each of which shall be
deemed an original and all of which together shall constitute one and the same instrument. A
copy of this Release bearing the signature of a party which is transmitted by facsimile shall have
the same legal effect as the personal delivery of a copy of this Release beating an original
signature.
2