HomeMy Public PortalAbout2000_05_09_O012 Metricom FranchiseThe Town of
Leesburg,
rglma
ORDINANCE NO. 2000-O-12
Revision #1
May 4, 2000
PRESENTED April 25, 2000
ADOPTED May 9, 2000
AN ORDINANCE:
GRANTING TO METRICOM, INC. A NONEXCLUSIVE
FRANCHISE TO USE THE STREETS, ALLEYS, RIGHTS-
OF-WAY AND PUBLIC PLACES FOR OPERATING A
WIRELESS DATA COMMUNICATION SYSTEM AND
SERVICE.
WHEREAS, Metricom, Inc. has applied to the Town for a nonexclusive franchise
to use the streets, alleys, rights-of-way and public places for operating a wireless data
communication system and service; and
WHEREAS, the Information Technology Commission recommends granting such
a nonexclusive franchise to Metricom, Inc., and
WHEREAS, it is desirable for the welfare of the Town to grant such a
nonexclusive franchise to Metricom, Inc.
THEREFORE, ORDAINED by the Council of the Town of Leesburg, Virginia as
follows:
SECTION I. The Town hereby grants to Metricom, Inc. a nonexclusive franchise
to use the streets, alleys, rights-of-way and public places for operating a wireless data
communication system and service. This franchise shall be subject to the terms and
conditions of the Right-of-Way Use Agreement (the "Agreement") in the attached form.
SECTION II. This ordinance shall be effective upon execution of the Agreement.
PASSED this 9th day of May, 2000.
ATTEST:
Cie~k'of C~ncil
· Clem, Mayor
Town of Leesburg
Right-of-Way Use Agreement
THIS RIGHT-OF-WAY USE AGREEMENT (hereinafter "Agreement") is
dated as of the ~day of ,2000 (the "Effective Date"), and
entered into by and between the Town of Leesburg, a Virginia municipal
corporation (hereinafter "Town"), and METRICOM, INC., a Delaware
corporation authorized to do business in the Commonwealth of Virginia
(hereinafter "Metricom").
Recitals
A. Metricom owns, maintains, and operates, in accordance with
regulations promulgated by the Federal Communications Commission, a mobile
digital data communications radio he,york known as RicochetS, utilizing
Radios (as defined in §1.8 below) and related equipment certified by the Federal
Communications Commission.
B. For purpose of operating RicochetS, 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 Town, and, subject to
obtaining the permission of the owner(s) of the affected property, on facilities
owned by third parties therein. Metricom acknowledges and agrees that the
Town has no authority to grant Metricom any rights to use facilities not owned
by the Town.
Agreement
Now, therefore, 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 Town,
excluding (i) the Right-of-Way Fee; (ii) a User Fee; (iii) local, state, or
federal taxes that have been billed to the subscribers and separately stated
on subscribers' bills; and (iv) revenue uncollectible from subscribers (i.e.,
bad debts) with billing addresses in the Town that was previously
included in Adjusted Gross Revenues.
1.2 Fee. "Fee" means any assessment, license, charge, fee, imposition,
tax, or levy of general application to entities doing business in the Town
lawfully imposed by any governmental body (but excluding any utility
users' tax, franchise fees, telecommunications tax, or similar tax or fee).
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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
Town 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 Town-owned
street light poles, lighting fixtures, elect-rollers, or other Town-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 Town. This term shall not include county, state, or
federal rights of way or any property owned by any person or entity other
than the Town, except as provided by applicable Laws or pursuant to an
agreement between the Town and any such person or entity.
1.8 Radios. "Radios" means the radio equipment, whether referred to
singly or collectively, to be installed and operated by Metricom hereunder.
1.9 Services. "Services" means the mobile digital communications
services provided through Ricochet® by Metricom.
1.10 Town. "Town" means the Town of Leesburg.
1,11 User Fee "User Fee" means a gross revenues-based fee or tax
which is added to a subscriber's bill such as a utility users' tax,
telecommunications tax, or similar tax or fee.
2 Term. This Agreement shall be effective as of the Effective Date and shall
extend for a term of five (5) years commencing on the Installation Date, unless it
is earlier terminated by either party in accordance with the provisions herein.
The term of this Use Agreement shall be renewed automatically for three
successive terms of five (5) years on the same terms and conditions as set forth
herein unless Metricom notifies the Town of its intention not to renew not less
than ninety (90) days prior to commencement of the renewal term. Metricom
shall remove all of its Radio from the streets, alleys and public places of the
Town at the expense of Metricom as soon as possible after the expiration,
termination or abandonment of the rights and privileges, or by such reasonable
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time to be prescribed by the Town Council. Such Radio may be abandoned
without removal upon approval by the Town.
3 Scope of Agreement. Any and all rights expressly granted to Metricom
under this Agreement, which shall be exercised at Metricom's sole cost and
expense, shall be subject to the prior and continuing right of the Town 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 Agreement shall be subject to the reasonable prior review and approval of
the Town.
3.1 Attachment to Municipal Facilities. The Town 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 RicochetO 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, at Metricom's sole
cost and expense, the Town 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
Town documentation of such permission from the individual utility or
property owner responsible. Town agrees to cooperate with Metricom, at
no cost or expense to Town, in obtaining, where necessary, the consents of
third-party owners of property located in the Municipal Right of Way.
3.3 No Interference. Metricom in the performance and exercise of its
rights and obligations under this 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, ~erial and underground electrical and telephone wires, electroliers,
cable television, and other telecommunications, utility, or municipal
property, without the express written approval of the owner or owners of
the affected property or properties, except as permitted by applicable
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Laws or this Agreement. Town agrees to require the inclusion of the same
or a similar prohibition on interference as that stated above in all
agreements Town may enter into after the Effective Date with other
information or communications providers and carriers.
3.4 Compliance with Laws. Metricom shall comply with all applicable
Laws in the exercise and performance of its rights and obligations under
this Agreement.
3.5 Obtaining Required Permits. Metricom shall comply with all
applicable Town ordinances and shall apply for the appropriate permits
and pay any standard and customary permit fees if the attachment,
installation, operation, maintenance, or location of the Radios in the
Municipal Right of Way shall require any such permits. Town shall
respond to Metricom's requests for permits and shall otherwise cooperate
with Metricom in facilitating the deployment of Ricochet~ in the
Municipal Right of Way in a reasonable and timely manner.
3.6 Location of Radios. The proposed locations of Metricom's planned
initial installation of Radios shall be provided to the Town promptly after
Metricom's review of available street light maps and prior to deployment
of the Radios. Location and installation of Radios shall be subject to
approval by the Town. Upon the completion of installation, Metricom
promptly shall furnish to the Town a pole list showing the exact location
of the Radios in the Municipal Right of Way.
3.7 Maintenance of Traffic. Metricom shall not hinder or impede the
flow of traffic to any greater extent than is reasonably necessary in
performing any installation, maintenance, removal, replacement or
repairs. Metricom shall contact the Town traffic engineer for approval of
any restriction or diversion of the flow of pedestrian or vehicular traffic
within the right of way which might become necessary in the performance
of the work under this Agreement. A traffic maintenance plan, in strict
accordance with the regulations of the Town of Leesburg and the Virginia
Work Area Protection Manual and the Manual on Uniform Traffic
Control, must be submitted to, and approved by, the traffic engineer
before the flow of pedestrian or vehicular traffic can be restricted or
detoured in any manner.
4 Compensation; Utility charges. Metricom shall be solely responsible for the
payment of all lawful Fees in connection with Metricom's performance under
this Agreement, including those set forth below:
4.1 Radios to be provided to the Town by Metricom. In addition to
any fees required under this Agreement, the Town shall be entitled to
receive two (2) free basic subscriptions to use Metricom's Ricochet®
MCDN service and free use of two (2) modems supplied by Metricom,
based upon Town's population. The Town's use of the modems and
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subscriptions shall be subject to the standard terms and conditions as are
normally packaged with the modem, except that the Town shall pay no
subscription fees or other ~h~rges and Town agrees to inform Metricom of
the manner in which the modems and subscriptions is used by Town.'
Upon the termination of the Agreement, the Town shall return to
Metricom any equipment provided to the Town pursuant to this section in
good condition, normal wear and tear excepted.
4.2 Right-of-Way Fees. In order to compensate Town for Metricom's
entry upon and deployment within the Municipal Right of Way, Metricom
shall pay to the Town, on an annual 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 Town and remitted to Town as provided herein. The Right-of-Way
Fee shall be payable for the period commencing upon the date that
Services are offered to subscribers within the Town using Radios installed
pursuant to this Agreement and ending on the date of termination of this
Agreement, and shall be due on or before the 45th day after the end of each
calendar year or fraction thereof. Within forty-five (45) days after the
termination of this 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 Town 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 Town shall be paid within thirty (30) days of
discovery of the error or determination of the correct amount. Any
overpayment to the Town through error or otherwise shall be offset
against the next payment due. Acceptance by the Town of any payment
due under this section shall not be deemed to be a waiver by the Town of
any breach of this Agreement occurring prior thereto, nor shall the
acceptance by the Town of any such payments preclude the Town from
later establishing that a larger amount was actually due or from collecting
any balance due to the Town.
4.1.1 Reduction of Right-of-Way Fee by Amount of Utility Users
or Telecommunications Tax. Notwithstanding anything to the
contrary in this Use Agreement, if the Services are subject to a
utility users tax, telecommunications tax, or other similar tax or fee
which accrues to the Town by operation of the Town's Municipal
Code or other applicable law, then the amount of the Right-of-Way
Fee shall be reduced by the amount of the applicable utility users
tax, telecommunications tax, or such other similar tax or fee.
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4.1.2 Accounting Matters. Metricom shall keep accurate books of
account at its principal office in Los Gatos or such other location of
its choosing for the purpose of determining the amounts due to the
Town under §4.1 above. Metricom shall at all times during the
term of this Agreement maintain a Registered Agent or other
similar representative in the Commonwealth of Virginia as
required by Virginia law. Metricom shall at all times during the
term of this Agreement maintain a Registered Agent or other
similar representative in the Commonwealth of Virginia as
required by Virginia law. Metricom agrees to deliver its books of
account relative to the Town to the offices of the Town's auditors or
other designated representatives of the Town for inspection and
review upon thirty(30) days prior written notice. Metricom agrees
that the Town may audit the books from time to time at the Town's
sole expense, but in each case only to the extent necessary to
confirm the accuracy of payments due under §4.1 above. The Town
agrees to hold in confidence any non-public information it learns
from Metricom to the fullest extent permitted by Law.
4.3 Annual Fee. As compensation for the use of Municipal Facilities,
Metricom shall pay to the Town 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 installed on Municipal Facilities during the preceding twelve
(12) months multiplied by the Annual Fee, prorated as appropriate, and shall be
due and payable not later than forty-five (45) days after each anniversarv of the
Installation Date. Town represents and covenants that Town owns all Municipal
Facilities for the use of which it is collecting from Metricom the Annual Fee
pursuant to this §4.2.
4.4 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.
4.5 Most-Favored Nation Clause. Should Metricom after the parties'
execution and delivery of this Agreement enter into an attachment permit
agreement with another locality of the same size or smaller than the Town in the
Washington, D.C. Metropolitan Statistical Area which agreement contains terms
or conditions for such locality which, taken as a whole and balanced with the
other terms of such agreement, are more favorable to such other locality than
those in this Agreement, then upon the request of the Town Metricom shall
modify this Agreement to incorporate such more favorable terms and conditions.
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5 Relocation and Displacement of Radios. Metricom understands and
acknowledges that Town may require Metricom to relocate one or more of its
Radios, and Metricom shall at Town's direction relocate such Radios at
Metricom's sole cost and expense, whenever Town 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 Town project;
(b) because the Radio is interfering with or adversely affecting proper operation
of Town-owned light poles, traffic signals, or other Municipal Facilities; or (c) to
protect or preserve the public health or safety. In any such case, Town 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 Town within a
reasonable time under the circumstances in accordance with the foregoing
provision, Town shall be entitled to relocate the Radios at Metricom's sole cost
and expense, without further notice to Met-ricom. To the extent the Town has
actual knowledge thereof, the Town 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 Town. Town 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 Agreement.
6 Damage to Municipal Right of Way. If Metricom shall in the construction,
operation, replacement, maintenance, removal, relocation or repair of its Radios
shall cause the Municipal Right of Way to be damaged, Metricom, at its sole cost
and expense, shall promptly repair and ret-urn the Mu_rricipal 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 Town shall have the option, upon ten
(10) 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
Town at Town's standard rates. Notwithstanding the foregoing, if such damage
to the Municipal Right of Way threatens the public health or safety, or threatens
a loss of revenue or other cost or expense to the Town, the Town shall make a
reasonable effort to provide Metricom with telephonic notice and an opportunity
to immediately cure such damage. If the Town is unable to reasonably provide
such notice, or Metricom fails to immediately cure the damage, the Town may
commence and complete the necessary repairs. Upon the receipt of a demand for
payment by the Town, Metricom shall promptly reimburse the Town for such
costs.
6.1 Minimum Standards. All work performed under this Agreement
shall be performed in accordance with the Town of Leesburg Design and
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Construction Standards Manual, the Manual of Permits for Work
Performed Within the Streets of the Town of Leesburg, and the Virginia
Department of Transportation Road and Bridge Specifications, current
editions, as applicable.
6.2 Construction Supervision. Metricom shall provide the necessary
supervision to construct the facilities and Radios in a workmanlike
manner consistent with industry standards. Metricom shall provide
contact numbers for supervisors of construction to the Town.
6.3 Construction Standards. The construction, installation, operation,
maintenance, and/or removal of the Radios shall meet all of the following
safety, construction, and technical specifications and codes and standards,
as applicable:
Occupational Safety and Health Administration Regulations
(OSHA)
National Electrical Code
National Electrical Safety Code (NESC)
AT&T Manual of Construction Procedures (Blue Book)
Appropriate Manual of Construction Procedures and Standards
as determined by the Town
Bell Telephone System Code of Pole Line Construction
All federal, state and municipal construction requirements
All building and zoning codes, and all land use restrictions
as the same may exist or may be amended.
7 Indemnification and Waiver. Metricom agrees to indemnify, defend,
protect, and hold harmless the Town, 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 Agreement, except to the extent arising from or caused by the
negligence or willful misconduct of the Town, its council members, officers,
employees, agents, or contractors. If a final judgement is obtained against the
Town for a suit or action for which the Town is entitled to be indemnified or held
harmless as just described, either independently or jointly with Metricom,
Metricom will pay the judgement, including all costs, and will hold the Town
harmless and indemnify the Town therefrom. The indemnities in this section
shall survive the expiration, termination or abandonment of this Agreement for a
period of three (3) years.
7.1 Waiver of Claims. Metricom waives any and all claims, demands,
causes of action, and rights it may assert against the Town on account of
any loss, damage, or injury to any Radio or any loss or degradation of the
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Services as a result of any event or occurrence which is beyond the
reasonable control of the Town.
7.2 Limitation of Town's Liability. The Town shall be liable only for
the cost of repair to damaged Radios arising from the negligence or willful
misconduct of Town, its employees, agents, or contractors.
8 Insurance. Metricom shall obtain and maintain at all times during the term
of this 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. The Commercial General Liability
insurance policy shall name the Town, its council members, officers, and
employees as additional insureds as respects any covered liability arising out of
Metricom's performance of work under this Agreement. Coverage shall be in an
occurrence form and in accordance with the limits and provisions specified
herein. Claims-made policies are not acceptable. Metricom shall require similar
indemnification from any contractor working in the public right of way on behalf
of Metricom. Such insurance shall not be canceled, nor shall the occurrence or
aggregate limits set forth above be reduced, until the Town has received at least
thirty (30) days advance written notice of such cancellation or change. Metricom
shall be responsible for notifying the Town of such change or cancellation.
8.1 Filing of Certificates and Endorsements. Prior to the
commencement of any work pursuant to this Agreement, Metricom shall
file with the Town 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 Town 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 Town may
possess, including any self-insured retentions the
Town may have; and any other insurance the Town
does possess shall be considered excess insurance
only and shall not be required to contribute with this
insurance; and
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(d) that Metricom's Commercial General Liability
insurance policy waives any right of recovery the
insurance company may have against the Town.
The certificate(s) of insurance with endorsements and notices shall be
mailed to the Town at the address specified in Section 9 below.
8.2 Workers' Compensation Insurance. Metricom shall obtain and
maintain at all times during the term of this 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 Town with a
certificate showing proof of such coverage.
8.3 Insurer Criteria. Any insurance provider of Metricom shall be
admitted and authorized to do business in the State of Virginia and shall
carry a minimum rating assigned by A.M. Best & Company's Kay 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.
8.4 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 Town. "Severability of interest" or "separation of
insureds" clauses shall be made a part of the Commercial General Liability
and Commercial Automobile Liability policies.
9 Notices. All notices which shall or may be given pursuant to this 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 Town:
Town of Leesburg
Attn: Robert Noe
25 West Market Street
P.O. Box 88
Leesburg, Virginia 20178
if to Metricom:
Metricom, Inc.
Attn: Network Real Estate
980 University Avenue
Los Gatos, CA 95032
9.1 Date of Notices; Changing Notice Address. Notices shall be
deemed given upon receipt in the case of personal delivery, three (3) days
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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.
10 Termination. This 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
pursue such cure to completion), provided that the grace period for any
monetary default shall be ten (10) days from receipt of notice. Except as
expressly provided herein, the rights granted under this Agreement are
irrevocable during the term.
11 Assignment. This Agreement shall not be assigned by Metricom without the
express written consent of the Town, which consent shall not be unreasonably
withheld, conditioned, or delayed. Notwithstanding the foregoing, the transfer
of the rights and obligations of Metricom hereunder to a parent, subsidiary,
successor, or affiliate shall not be deemed an assignment for the purposes of this
Agreement. Any successor(s) of Metricom shall be bound by all of the terms and
conditions of this Agreement and shall be subject to all the provisions,
obligations, stipulations and penalties prescribed herein.
12 Miscellaneous Provisions. The provisions which follow shall apply
generally to the obligations of the parties under this Use Agreement.
12.1 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 Town shall
have the right to permit other providers of communications services to
install equipment or devices in the Municipal Right of Way and on
Municipal Facilities. Town 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, Town 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.
12.2 Performance Bond. Metricom shall deliver to the Town a Ten
Thousand and 00/100 Dollar ($10,000.00) surety bond, in the form
attached hereto as Exhibit A, with a good and sufficient surety reasonably
acceptable to the Town Attorney, to the effect that Metricom will comply
with the terms, conditions and provisions of this Agreement in all
respects.
12.3 Waiver of Breach. The waiver by either party of any breach or
violation of any provision of this Agreement shall not be deemed to be a
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waiver or a continuing waiver of any subsequent breach or violation of
the same or any other provision of this Agreement.
12.4 Severability of Provisions. If any one or more of the provisions of
this Agreement shall be held by a court of competent jurisdiction in a final
judicial action to be void, voidable, or unenforceable, such provision(s)
shall be deemed severable from the remaining provisions of this
Agreement and shall not affect the legality, validity, or constitdtionality of
the remaining portions of this Agreement. Each party hereby declares
that it would have entered into this Agreement and each provision hereof
regardless of whether any one or more provisions may be declared illegal,
invalid, or unconstitutional.
12.5 Contacting Metricom. Metricom shall be available to the staff
employees of any Town 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 Town may contact
by telephone the network control center operator at telephone number
(800) 873-3468 regarding such problems or complaints.
12.6 Governing Law; Jurisdiction. This Agreement shall be governed
and construed by and in accordance with the laws of the State of Virginia,
without reference to its conflicts of law principles. If suit is brought by a
party to this Agreement, the parties agree that trial of such action shall be
vested exclusively in the state courts of, or federal court nearest, Virginia,
County of Loudoun.
12.7 Attorneys' Fees. Metricom agrees to reimburse the Town for the
reasonable costs, expense and attorney's fees incurred in preparation and
review of this Agreement, not to exceed $2,000.00. Metricom shall make
such reimbursement within thirty (30) days of.receipt of Town's invoice
documenting the costs, expenses and fees incurred by the Town.
12~8 Consent Criteria. In any case where the approval or consent of one
party hereto is required, requested or otherwise to be given under this
Agreement, such party shall not unreasonably delay, condition, or
withhold its approval or consent.
12.9 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.
12.10 Amendment of Agreement. This Agreement may not be amended
except pursuant to a written instrument signed by both parties.
VAkLeesburg~Leesburgcty2.doc
12
12.11 Entire Agreement. This 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 Agreement which are not fully expressed herein.
IN WITNESS WHEREOF, and in order to bind themselves legally to the
terms and conditions of this Agreement, the duly authorized representatives of
the parties have executed this Agreement as of the Effective Date.
VA~Leesburg~Leesburgcty2.doc
13
STATE OF
COUNTY/CITY OF
, to-wit:
Subscribed and sworn to before me, the tmdersigned, a notary public of
and for the State of , by for Metricom, Inc., a
Delaware corporation, on this __ day of ,2000.
Notary Public
My Commission Expires:
VAkLeesburgkLeesburgcty2.doc
15
Exhibit A
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 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.
VA~Leesburg~Leesburgcty2.doc
A-I
PROVIDED, HOWEVER, this bond is issued subject to the following
express conditions:
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.
o
o
The aggregate liability of the Surety hereunder on all claims whatsoever
shall not exceed the penal sum of this bond in any event.
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 SURETY
By:
(Type Company Name)
By:
Title: Title:
By:
Address:
Telephone:
(Affix Corporate Seals)
(Attach Acknowledgments of both Principal and Surety signatures)
VAXLeesburgXLeesburgcty2.doc
A-2
APPROVED AGREEMENTS BY JURISDICTION
Boston, Massachusetts GSA
Cohasset Scituate
Dedham Stoughton
Rockland
Total 5
Chicago, Illinois GSA
Addison Ford Heights Naperville
Algonquin DuPage County Nexv Lenox
Alsip Forest Viexv Niles
Arlington Heights Fox River Grove Norridge
Aurora Glenview North Aurora
Barrington Glenwood North Chicago
Barrington Hills Golf Northfield
Bartlett Hanover Park Oak Brook
Bedford Park Hawthorn Woods Oak Forest
Bensenville Hazel Crest Oak Lawn
Berkeley Hickory Hills Oak Park
Bolingbrook Hillside Oakbrook Terrace
Bridgevie~v Hodg 'kins Olympia Fields
Broadviexv Hoffman Estates Orland Hills
Buffalo Grove Hometown Park Forest
Burbank Indian Creek Prospect Heights
Burnham Indian Head Park River Forest
Burr Ridge Island Lake River Grove
Carpentersville Itasca Riverdale
Cary Joliet Riverwoods
Chicago Heights Justice Robbins
Chicago Ridge Lake County Rolling Meadows
Clarendon Hilll Lake~vood Roselle
Country Club Hills Lansing Round Lake Beach
Countryside Lemont Round Lake Heights
Crest Hill Lombard Sauk Village
Crystal Lake Lynxvood Schaumburg
Darien Lyons Schiller Park
Deer Park Mar 'kham Shorewood
Deerfield Matteson Skokie
Des Plaines Maywood South Chicago Heights
Dixmoor McCook South Holland
Downers Grove Merrionette Park Steger
East Hazel Crest Midlothian Stickmey
Elmhurs t Montgomeu? Summit
_ Evanston Morton Grove Third Lake
Evergreen Park Mount Prospect Tinlev Park
Villa Park
WarrenviLle
West Chicago
Westchester
Western Springs
Westrnont
Wheaton
Wheeling
Willowbrook
Wilmette
Woodridge
Total 122
Dallas, Texas GSA
Addison
Allen
Bedford
Carrollton
Cockrell Hill
Collin County
CoUe?iUe
CoppeU
DaUas
Dalworthington Gardens
Euless
Farmers Branch
Flower Mound
Fort Worth
Denver, Colorado GSA
Commerce City
Foxfield
Houston, Texas GSA
Bellaire
Brazoria County
Brookside Village
Conroe
Deer Park ~'
Fort Bend County
Galveston Count3'
Houston
Kat3'
Kemah
La Marque
Los Angeles, California GSA
Agoura Hills
Anaheim
Arcadia
Artesia
Azusa
Baldwin Park
Frisco
Grand Prairie
Grapevine
Haltom City
Hickory` Creek
Highland Park
Hurst
Keller
Lake Dallas
McKinney
Mesquite
North Richland Hills
Pantego
Richland Hills
Northglenn
Sheridan
La Porte
League City
Meadoxvs
Missouri City
Montgomerry County
Nassau Bay
Oak Ridge North
Pearland
Piney Point Village
Richmond
Rosenberg
Bell
Bell Gardens
Bellflower
Beverly Hills
Bradbury
Buena Park
River Oaks
Rowlett
Sansom Park
Southlake
Tarrant Count3.,
The Colony
University Park
Watauga
Westover Hills
Westworth
White Settlement
Total 39
Total 4
Seabrook
Shenandoah
Shoreacres
South Houston
Southside Place
Sugar Land
Taylor Lake Village
Ti'Id Island
Webster
Total 31
Burbank
Carson
Cerritos
Claremont
Commerce
Costa Mesa
File Updated: June 17, 1999 Updated by: MHO
Time: 4:4.1 PM
Covina
Cudahy
Culver City
Cypress
Diamond Bar
Downey
Duarte
E1 Monte
Garden Grove
Gardena
Glendale
Glendora
Hawthorne
Hermosa Beach
Huntington Beach
Huntington Park
Industry
Inglewood
Irvine
La Canada Flint_ridge
La Habra
La Habra Heights
La Mirada
La Palma
La Puente
La Verne
Laguna Hills
Laguna Niguel
Lake Forest
Lakewood
Lawndale
Lomita
Long Beach
Los Alamitos
LOs Angeles
Malibu
Manhattan Beach
Maywood
Mission Viejo
Montebello
Newport Beach
Orange
Paramount
Pasadena
Placentia
Pomona
Rancho Palos Verdes
Redondo Beach
Rolling Hills
Rosemead
San Dimas
San Fernando
San Gabriel
San Marino
Santa Ana
Santa Clarita
Santa Fe Springs
Seal Beach
Sierra Madre
Signal Hill
South E1 Monte
South Gate
South Pasadena
Stanton
Temple City
Torrance
Villa Park
Walnut
West Covina
West Hollywood
Wesdake Village
Westminster
Whittier
Total 91
New York, New York GSA
Asharoken, NY
Adantic Beach, NY
Bayonne, NJ
Belleville, NJ.
Boonton, NJ
Bound Brook, NJ
Broo -khaven, NY
Fair Lawn, NJ
Famvood, NJ
Farmingdale, NY
Florham Park, NJ
Floxver Hill, NY
Harrison, NJ
Livingston, NJ
Lynbrook, NY
Lyndhurst, NJ
Madison, NJ
Metuchen, NJ
New Brunswick, NJ
New Hyde Park, NY
New York City, NY
North Arlington, NJ
Palisades Park, NJ
Passaic, NJ
Pompton Lakes, NJ
Roselle, NJ
Roslyn Estates, NY
Saddle River, NY
Shoreham, NY
South Bound Brook, NJ
South Floral Park, NY
South Plainfield, NJ
Teterboro, NJ
Union, NJ
Village of the Branch, NY
Wallington, NJ
Wanaque, NJ
Total 37
File Updated: June 17, 1999 Updated by: MHO
Time: 4:41 PM
Philadelphia, Pennsylvania GSA
Abington, PA
Ambler, PA
Audubon Park, NJ
Barrington, NJ
Bellmawr, NJ
Beverly, NJ
Brookhaven, PA
B~,n Athyn, PA
Burlington, NJ
Chalfont, PA
Chester City, PA
Cinnaminson, NJ
Clementon, NJ
Darby, PA
Phoenix, Arizona GSA
E1 Mirage
Fountain Hills
Litchfield Park
Riverside, California GSA
Canyon Lake
Chino
Chino Hills
Colton
Corona
Fontana
Grand Terrace
Highland
Lake Elsinore
San Diego, California GSA
Chula Vista
E1 Cajon
Encinitas
Escondido
Imperial Beach
La Mesa
San Francisco, California GSA
Alameda
Alameda Count3,,
Albany
Antioch
Atherton
Belmont
Doylestown, PA
East Lansdowne, PA
Easttown, PA
Elsmere, DE
Folcroft, PA
Haddonfield, NJ
Haddon Heights, NJ
Hi-Nella, NJ
Hulmeville, PA
Ivyland, PA
Lansdale, PA
Laurel Springs, NJ
Lindenwold, NJ
Maple Shade, NJ
Maricopa County
Mesa
Peoria
Loma Linda
Montclair
Moreno Valley
Murrieta
Norco
Ontario
Perds
Rancho Cucamonga
Rialto
Lemon Grove
National City
Poway
San Diego
San Diego Count3,
San Marcos
Belvedere
Berkeley
Brisbane
Burlingame
Campbell
Capitola
Merchantville, NJ
National Park, NJ
North Wales, PA
Oaklyn, NJ
Pennsauken, NJ
Schuylkill, PA
Somerdale, PA
Stratford, NJ
Upper Gw3'nedd, PA
West Chester, PA
Wilmington, DE
Total 39
Phoenix
Total 7
Riverside
San Bernardino
Temecula
Upland
Yucaipa
Total 23
Solana Beach
Vista
Total 14
Concord
Contra Costa Counw
Corte Madera
Cupertino
Dalv City
Danville
File Updated: June 17, 1999 Updated by: MHO
Time: 4:41 PM
Dublin
East Palo Alto
E1 Cerrito
Fairfax
Foster City
Fremont
Hayward
Hillsborough
Larkspur
Livermore
Los Altos
Los Altos Hills
Los Gatos
Marin County
Martinez
Menlo Park
Mill Valley
Millbrae
Milpitas
Monte Sereno
Moraga Town
Seattle, Washington GSA
Algona
Auburn
Bellevue
Bothell
Brier
Burien
Des Moines
Edmonds
Everett
Federal Way
Fife
Washington, DC GSA
Alexandria, VA
Annapolis, MD
Arlington CounU,, VA
Berwyn Heights, MD
Bladensburg, MD
Bowie, MD
Brentwood, MD
Capitol Heights, MD
Cheverly, MD
CheW Chase, MD
CheW Chase Sec. Five, MD
Morgan Hill
Mountain View
Nexvark
Novato
Oa'kland
Orinda
Pacifica
Palo Alto
Piedmont
Pittsburg
Pleasant Hill
Pleasanton
Portola Valley
Redwood City
Richmond
Ross
San Anselmo
San Bruno
San Carlos
San Francisco, City &
County of
Issaquah
Kent
King County
Kirldand
Lake Forest Park
Lynnwood
Mercer island
Mill Creek
Mountlake Terrace
Mukilteo
Normandy Park
CheW Chase Viexv, MD
CheW Chase Village, MD
College Park, MD
Cotmar Manor, MD
Cottage City, MD
District Heights, BID
District of Columbia
Edmonston, MD
Fairfax County, VA
Fairfax, VA
Falls Church, VA
San Jose
San Leandro
San Mateo
San Mateo Count-5,'
San Rafael
San Ramon
Santa Clara
Santa Clara County
Santa Cruz
Santa Rosa
Saratoga
Sausalito
South San Francisco
Sunn,~-ale
Tiburon
Union Citw
Valle jo
Walnut Creek
Woodside
Total 78
Pacific
Redmond
Renton
SeaTac
Seattle
Sumner
Tukxvila
Woodinville
Yarrow Point
Total 31
Forest Heights, BLD
Gaithersburg, BID
Garrett Park, hiD
Glenarden, NID
Greenbelt, ~ID
Herndon, VA
Hyattsville, MD
Kensington, 3ID
Landover Hills, BID
Laurel, MD
Manassas, VA
File Updated: June 17, 1999 Updated by: MHO
Time: 4:41 PM
Martin's Additions, MD
Montgomery County, 3LD
Mount Rainier, MD
New Carrollton, MD
North Brentwood, MD
Occoquan, VA
Prince George's Cty, MD
Riverdale, MD
Rockville, MD
Somerset, MD
Takoma Park, MD
University Park, MD
Washington Grove, MD
Total 46
Other Agreements
Corvallis, OR
Dearborn, MI
Eugene, OR
Gering, NE
Scotts Bluff, NE
Atlanta, GA
Total Approved Agreements - 573
Total 6
File Updated: June 17, 1999
Time: 4:41 PM
Updated by: MHO