Metricom, Inc. - Mobile digital data communications radio network "Ricochet"GILROY
a*t- of -?Mxg Not AgreEment
HIS RIGHT -OF -WAY USE AGREEMENT (this "Use Agreement ") is dated as of
July 17 , 2000 (the "Effective Date "), and entered into by and
between the CITY OF GILROY, a California municipal corporation (the
"City "), and METRICOM, INC., a Delaware corporation ( "Metricom ").
&dtals
A. Metricom owns, maintains, and operates, in accordance with regulations
promulgated by the Federal Communications Commission, a mobile digital data
communications radio network known as Ricochet®, utilizing Radios (as defined in
§ 1.8 below) and related equipment certified by the Federal Communications
Commission.
B. For purpose of operating Ricochet®, Metricom wishes to locate, place,
attach, install, operate, and maintain Radios in the Municipal Right of Way (as defined
in § 1.7 below) on facilities owned by the City, as well as on facilities owned by third
parties therein.
INg"t11 nt
Naw, UltrtfVrt, 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 Adjusted Gross Revenues. "Adjusted Gross Revenues" means the gross
dollar amount received by Metricom for its Services (as defined in § 1.9 below)
provided to subscribers with billing addresses in the City, excluding (i) the
Right -of -Way Fee, if any, payable pursuant to § 4.1 et seq. below and any utility
users' tax, communications tax, or similar tax or fee; (ii) local, state, or federal
taxes 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 Adjusted
Gross Revenues.
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1.2 Fee. "Fee" means any assessment, license, charge, fee, imposition, tax, or levy
of general application to entities doing business in the City lawfully imposed by
any governmental body (but excluding any utility users' tax, franchise fees,
communications tax, or similar tax or fee).
1.3 Installation Date. "Installation Date" shall mean the date that the first Radio
is installed by Metricom pursuant to this Use Agreement.
1.4 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.
1.5 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.
1.6 Municipal Facilities. "Municipal Facilities" means City -owned street light
poles, lighting fixtures, electroliers, or other City -owned structures located
within the Municipal Right of Way and may refer to such facilities in the singular
or plural, as appropriate to the context in which used.
1.7 Municipal Right of Way. "Municipal Right of Way" means the space in,
upon, above, along, across, and over the public streets, roads, highways, lanes,
courts, ways, alleys, boulevards, sidewalks, bicycle lanes, 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 entity other than the City, except as provided by applicable Laws or
pursuant to an agreement between the City and any such person or entity.
1.8 Radio. "Radio" means the radio equipment, whether referred to singly or
collectively, to be installed and operated by Metricom hereunder., which shall
comport to the size and weight specifications set forth in Exhibit A or require the
prior approval of the City.
1.9 Services. "Services" means the mobile digital communications services
provided through Ricochet® by Metricom.
1.10 City. "City" means the City of Gilroy.
1.11 [PUCJ. " PUC" means the California Public Utilities Commission.
2 TERM. This Use Agreement shall be effective as of the Effective Date and shall
extend for a term of ten (10) years commencing on the Installation Date, unless it is
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earlier terminated by either party in accordance with the provisions herein. The term
of this Use Agreement shall be renewed automatically for three (3) successive terms of
five (5) years each on the same terms and conditions as set forth herein, 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 entity 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,
including any fee, leasehold interest, or easement. Any work performed pursuant to
the rights granted under this Use Agreement shall be subject to the reasonable prior
review and approval of the City.
3.1 Attachment to Municipal Facilities. 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. In addition, subject to the provisions of § 4.3 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.
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, aerial and underground
electrical and telephone wires, electroliers, cable television, and other
telecommunications, utility, or municipal property, without the express written
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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 Work Standard. Metricom shall use and exercise due care, caution, skill
and expertise in performing all work under this Use Agreement and shall take all
reasonable steps to safeguard work site areas, including without limitation,
existing facilities and property. Metricom shall abide by all applicable City
policies and work standards relating to the performance of its work under this
Use Agreement.
3.6 Obtaining Required Permits. If the attachment, installation, operation,
maintenance, or location of the Radios in the Municipal Right of Way shall
require any permits, Metricom shall, if required under applicable City
ordinances, apply for the appropriate permits and pay any standard and
customary permit fees.
3.7 Location of Radios. 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.
Upon the completion of installation, Metricom promptly shall furnish to the City
a pole list showing the exact location of the Radios in the Municipal Right of
Way.
4 COMPENSATION; 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 compensate City for Metricom's entry upon
and deployment within the Municipal Right of Way, Metricom shall pay to the
City, on an quarterly basis, an amount equal to five percent (5 %) of Adjusted Gross
Revenues (the "Right -of -Way Fee'), which amount may be collected from
subscribers of the Services with billing addresses in the City and remitted to City as
provided herein. The Right -of -Way Fee shall be payable for the period
commencing upon the date that Services are offered 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 January 1, April 1, July 1, and October 1 of each year.
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
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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
Adjusted Gross Revenues for the period covered by the payment. If Metricom
discovers any error in the correct amount of compensation due, the City shall be
paid 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. 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 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 thirty (30) 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 subject to the
Public Records Act and any other applicable law.
4.2 Annual Fee. As compensation for the use of Municipal Facilities, Metricom
shall pay to the City an annual fee (the "Annual Fee ") in the amount of Sixty
Dollars ($60.00) for the use of each Municipal Facility, if any, upon which a Radio
has been installed pursuant to this Use Agreement. The aggregate Annual Fee
with respect to each year of the term shall be an amount equal to the number of
Radios existing on Municipal Facilities during the preceding twelve (12) months
multiplied by the Annual Fee, prorated as appropriate, and shall be due and
payable not later than forty -five (45) days after each anniversary of the
Installation Date. City represents and covenants that City owns all Municipal
Facilities for the use of which it is collecting from Metricom the Annual Fee
pursuant to this § 4.2.
4.2.1 CPI Adjustment. Effective commencing on the fifth (5t")
anniversary of the Installation Date and continuing on each fifth
(5th) anniversary thereafter during the term, the Annual Fee with
respect to the ensuing five -year period shall be adjusted by a
percentage amount equal to the percentage change in the U.S.
Department of Labor, Bureau of Labor Statistics Consumer Price
Index (All Items, All Consumers, 1982 - 1984 =100) which occurred
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during the previous five -year period for the San Francisco Bay Area
Consolidated Metropolitan Statistical Area.
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 Connection 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 receive up to the maximum number specified below
(based upon the City's population) of free basic Ricochet® modems and free
Ricochet® basic subscriptions. The number of free modems and free
subscriptions which the City may receive 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 4,999 or less, one (1) free
modem and one (1) free subscription; (b) for municipalities with a population of
between 5,000 and 9,999, up to two (2) free modems and two (2) free
subscriptions; (c) for municipalities with a population of between 10,000 and
24,999, up to three (3) free modems and three (3) free subscriptions; (d) for
municipalities with a population of between 25,000 and 49,999, up to four (4) free
modems and four (4) free subscriptions; (e) for municipalities with a population
of between 50,000 and 74,999, up to five (5) free modems and five (5) free
subscriptions; and (f) for municipalities with a population of over 75,000, up to a
maximum of six (6) free modems and six (6) free subscriptions. City shall
designate one person who shall be responsible for ordering and receiving any
modems and/or subscriptions. To take advantage of this program, the
designated individual should contact Metricom's Network Real Estate
Department at the address stated in § 8 below. City's right to use the modems
and subscriptions shall commence at the time that Ricochet® service is
commercially available in the City and shall extend until the expiration of the
term of this Use Agreement or through the length of time that Radios are
deployed in the Municipal Right of Way, whichever is longer. Upon expiration
of City's right to receive and use free subscriptions and modems, City shall
return the modems to Metricom, at City's expense, in good condition, normal
wear and tear excepted. City's use of the modems and subscriptions shall be
subject to the standard Ricochet® terms and conditions of use packaged with the
modems. City understands and agrees that any additional modems, service
subscriptions, or service options the City may desire may be obtained from an
authorized retailer at market rates current from time to time. City shall use all
modems and all subscriptions provided pursuant to this section 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, excepting a local public entity that provides
public service within the corporate boundaries of the City (e.g., municipal
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schools, public safety or fire departments, etc.). The level of benefits and service
provided to City by Metricom as "basic service" shall not be diminished or
reduced during the term of this Use Agreement or renewal thereof or prior to its
cancellation or termination, as the case may be. Metricom shall update and
upgrade the equipment supplied under § 4.4 from time to time at no cost to City,
to the extent necessary to maintain basic data transfer speed consistent with the
basic level of service provided herein.
5 RELOCATION AND DISPLACEMENT OF RADIOS. Metricom understands and
acknowledges that City may require Metricom to relocate one or more of its Radios,
and Metricom shall at City's direction relocate such Radios at Metricom's sole cost and
expense, whenever City reasonably determines that the relocation is needed for any of
the following purposes: (a) if required for the construction, completion, repair,
relocation, or maintenance of a City project; (b) because the Radio is interfering with or
adversely affecting proper operation of City -owned light poles, traffic signals, or other
Municipal Facilities; or (c) to 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. 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.
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.
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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, 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 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. The City
has no duty to safeguard or protect the Radios or other equipment of Metricom.
6.2 Limitation of City's Liability. 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.
6.3. Disclaimer of Liability. The City shall not be liable for any indirect,
incidental, consequential, or special damages (even if the City has been advised
about the possibility of such damages) including, but not limited to, loss of
revenue, profits or business, cost of delay, cost of lost or damaged equipment
(other than that covered under § 6.2), or Metricom's liabilities to third parties
arising from any source.
6.4. Bond or Other Security. Prior to the commencement of any work under
this Use Agreement, Metricom shall furnish or cause to be furnished to City a
good and sufficient bond, substantially in the form attached hereto as Exhibit B
entitled Surety Bond, issued by a surety company reasonably acceptable to City,
in the amount of Five Thousand Dollars ($5,000) for the first one hundred (100)
Municipal Facilities Metricom attached to, or such other comparable security
instrument as may be approved by the City's attorney or risk manager, securing
the faithful performance by Metricom of all of the work, construction,
installation, and removals required to be performed by Metricom under this Use
Agreement within the time periods set forth hereunder.
7 INSURANCE. Metricom shall obtain and maintain at all times during the term of this
Use Agreement Commercial General Liability insurance and Commercial Automobile
Liability insurance protecting Metricom in an amount not less than One Million Dollars
($1,000,000) per occurrence (combined single limit), including bodily injury and
property damage, and in an amount not less than One Million Dollars ($1,000,000)
annual aggregate for each personal injury liability and products - completed operations.
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The Commercial General Liability insurance policy 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. Such insurance
shall not be canceled, nor shall the occurrence or aggregate limits set forth above be
reduced, until the City has received at least thirty (30) days' advance written notice of
such cancellation or change. Metricom shall be responsible for notifying the City of
such change or cancellation.
7.1 Filing of Certificates and Endorsements. Prior to the commencement of any
work pursuant to this Use Agreement, Metricom shall file with the City the
required original certificate(s) of insurance with endorsements, which shall state
the following:
(a) the policy number; name of insurance company; name and
address of the agent or authorized representative; name and
address of insured; project name; policy expiration date; and
specific coverage amounts;
(b) that the City shall receive thirty (30) days' prior notice of
cancellation;
(c) that Metricom's Commercial General Liability insurance policy
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; and
(d) that Metricom's Commercial General Liability insurance policy
waives any right of recovery the insurance company may have
against the City.
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 One Million
Dollars ($1,000,000) 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 California and shall carry a minimum
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rating assigned by A.M. Best & Company's Key Rating Guide of "A" Overall and a
Financial Size Category of "X" (i.e., a size of $500,000,000 to $750,000,000 based
on capital, surplus, and conditional reserves). 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. " 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 GILROY
Attn: City Administrator
7351 Rosanna Street
Gilroy, CA 95020 -6197
if to Metricom:
METRICOM, INC.
Attn: Network Real Estate
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 business 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 OR REMOVAL OF RADIOS. This Use Agreement may be terminated by
either party upon forty five (45) days' prior written notice to the other party upon a
default of any material covenant or term hereof by the other party, which default is not
cured within forty -five (45) days of receipt of written notice of default (or, if such
default is not curable within forty -five (45) days, if the defaulting party fails to
commence such cure within forty -five (45) days or fails thereafter diligently to
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prosecute such cure to completion), provided that the grace period for any monetary
default shall be ten (10) days from receipt of notice. If use of the Radios or any other
aspect of the system, in the City's reasonable judgement, constitutes an immediate
threat to the public health, safety, or welfare due to interference with public safety
radio communication, that shall constitute an event of default. Except as expressly
provided herein, the rights granted under this Use Agreement are irrevocable during
the term. Within fifteen (15) days of termination, either pursuant to this Paragraph or at
the expiration of the Term hereof, Metricom shall promptly remove all Radios and
other installed equipment and repair any damage to the Municipal Facilities, at its
expense. If Metricom fails to remove all Radios and other installed equipment and
repair any damage within fifteen (15) days of termination, the City may remove all
Radios and other installed equipment and make any necessary restoration to the
Municipal Facilities after notice to Metricom. Any amounts expended by the City to
remove the Radios or other equipment of Metricom and to paint or otherwise restore
the Municipal Facilities following termination of this Use Agreement shall be promptly
reimbursed by Metricom to the City.
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, or 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
communications services to install equipment or devices on Municipal Facilities.
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 communications services of the presence or planned deployment of
the Radios in the Municipal Right of Way and/or on Municipal Facilities.
11.2 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.
11.3 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, then such provision(s) shall be
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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; provided, however, that if any such action
prohibits the City from collection compensation for the use of the Municipal
Right of Way or Municipal Facility, then the Parties shall promptly meet and
confer to devise and execute a suitable amendment to this Use Agreement. If
such amendment is not executed within sixty (60) days of such final action, then
City may terminate this Use Agreement by giving sixty (60) days' written notice
to Metricom.
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 California, 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 California, County of Santa Clara, or in the United States
District Court for the Northern District of California.
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 (without limitation) reasonable attorneys' fees.
11.7 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.
11.8 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.
11.9 Amendment of Use Agreement. This Use Agreement may not be
amended except pursuant to a written instrument signed by both parties.
Right -of -Way Use Agreement
City of Gilroy :: Metricom, Inc.
Page 12 of 13
11.10 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.
' In witTiEBS w4creaf, 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 -e 3 ,
City: CITY OF a niamAinicipall c_oorr J ration
w • I
By.
Jay Baksa
name typed)
Its: City of Gil
Date: July 17 , 2000
Metricom: METRICOM, I C., a De are corporation
By:
e typed)
Its: Or,RPCRATE OPS.
Date: JUN 2 3 2000 12000
Approved As To Form
RONN gal Departmer)t
By:
Date( ,2
Right -of -Wad Use Agreement
City of Gilroy :: Metricom, Inc.
Page 13 of 13
[EXHIBIT A]
[DESCRIPTION OF RADIOS]
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Metricom Description of Radio
page A -1 of 1
[EXHIBIT B]
[FORM OF SURETY BOND]
Bond Number:
SURETY BOND
KNOW ALL MEN BY THESE PRESENTS:
That METRICOM, INC. as Principal, and
incorporated under the laws of the State of , and authorized to
execute bonds and undertakings as sole surety, are held and firmly bound unto
as Obligee, in the sum of
($ ); for the payment thereof, well truly to be made, said Principal and
Surety bind themselves, their administrators, successors and assigns, jointly and
severally, firmly by these presents.
The condition of the foregoing obligation is such that:
WHEREAS, the above bounden Principal is about to enter into a certain agreement with
the Obligee for the following: , the
award of which said agreement was made to the Principal by the Obligee, on
NOW THEREFORE, if the Principal shall well, truly and faithfully perform its
duties, all the undertakings, covenants, terms, conditions, and provisions of said
agreement, including the obligation to remove Radio(s) pursuant to § 9 of said
agreement, during the original term thereof, and any extensions thereof which may be
granted by the Obligee, with or without notice to the Surety, and if he shall satisfy all
claims and demands incurred under such agreement, and shall fully indemnify and
save harmless the Obligee from all costs and damages which it may suffer by reason of
failure to do so, and shall reimburse and repay the Obligee all outlay and expenses
which the Obligee may incur in making good any default, then this obligation shall be
void; otherwise to remain in full force and effect.
PROVIDED, FURTHER, that the said Surety, for value received, hereby
stipulates and agrees that no change, extension of time, alteration or addition to the
terms of the agreement or to the work to be performed thereunder or the specifications
accompanying the same shall in any way affect its obligation on this bond, and it does
hereby waive notice of any such change, extension of time, alteration or addition to the
terms of the agreement or to the work or to the specifications.
Nletricom System Plans and Specifications
page B -1 of 1
PROVIDED, HOWEVER, this bond is issued subject to the following express
conditions:
1. This bond shall be deemed continuous in form and shall remain in full force and
effect until canceled under Section , after which all liability ceases except as
to any liability incurred or accrued prior to the date of such cancellation.
2. The aggregate liability of the Surety hereunder on all claims whatsoever shall not
exceed the penal sum of this bond in any event.
3. The surety reserves the right to withdraw as surety from this bond, except as to
any liability incurred or accrued, and may do so upon giving the Obligee sixty
(60) days written notice.
SIGNED AND SEALED this day of ,19
PRINCIPAL
Title:
SURETY
(Type Company Name)
By:
Title:
Address:
Telephone:
(Affix Corporate Seals)
(Attach Acknowledgments of both Principal and Surety signatures)
Metricom System Plans and Specifications
page B -2 of 2