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HomeMy WebLinkAbout2000 - 093 - Public Ways Use Permit and Agreement with MetricomORDINANCE NO. ~ ~~~ ~- ~,,~ BILL NO. ~ ~~~ ~- ~~~ AN ORDINANCE APPROVING A PUBLIC WAYS USE PERMIT AND AGREEMENT WITH METRICOM, INC. WHEREAS, the City desires to permit and manage reasonable access to the public ways of the City. WHEREAS, the City desires to secure fair and reasonable compensation to the City and the residents of the City for permitting private use of the public ways. WHEREAS, the City desires to assure that the City can continue to fairly and responsibly protect the public health, safety and welfare. WHEREAS, the City has adopted Chapter 250 of the Code relating to right-of--way management and communications. WHEREAS, Metricom, Inc. has submitted an application to the City regarding the use of Public Ways. NOW, THEREFORE, be it ordained by the Board of Aldermen of Riverside, Missouri: Section 1. The Public Way Use Permit and Agreement, in substantially the form attached as Exhibit A, is approved and the Mayor and the City Clerk are authorized to execute the Public Way Use Permit and Agreement with such changes as the Mayor shall approve, execution of the Agreement being conclusive proof of such approval. The Mayor, City Clerk and the officers and employees of the City are authorized and directed to take such fiirther actions and to execute such other documents as are necessary or desirable to effectuate the intent of this ordinance. Section 2. This ordinance shall take effect immediately. Adopted and passed this, -day of , 2000. ATTEST: ;~ ;, ~,: ~~ -~ lfj ~ ~CI CLERK MAYOR ~ J~ i%?~~ . ~~i~Zcd ~. °p~ ~ ~ /~G~ /, EYHIBIT A CITY OF RIVERSIDE Public Way Use Permit and Agreement THIS PUBLIC WAY USE PERMIT AND AGREEMENT (this "Agreement") is dated as of November ~, , 2000 (the "Effective Date"), and entered into by and between the CITY OF RIVERSIDE, a Missouri municipal corporation (the "City"), and METRICOM, INC., a Delaware corporation ("Metricom"). RECITALS 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 Article 1 below) and related equipment certified by the Federal Communications Commission. B. Metricom wishes to locate, place, attach, install, operate, and maintain Radios in the Public Way on facilities owned by third parties. AGREEMENT NOW, THEREFORE, in consideration of the mutual premises and covenants contained herein, the parties agree as follows: ARTICLE 1. DEFINTTIONS Any term used herein but not defined herein shall have the meaning set forth in Chapter 250 of the Riverside Municipal Code. Further, the following definitions shall apply to the provisions of this Agreement. 1.1 Abandoned. "Abandoned" shall refer to any Radio installed on a facility in the Public Way that has been left by Metricom in an unused or non-functioning condition for more than one hundred and twenty (120) consecutive days, unless Metricom shall establish to the reasonable satisfaction of the City that the Radio(s) in question has(have) continued viability at its(their) location(s) and will be placed in use within the next one hundred and twenty (120) days. Public Way Use Permit mrdAgreernent City of Rtoerside :: Metnrom, Inc. pnge 7 1.2 Adjusted Gross Revenues. "Adjusted Gross Revenues" mean the gross dollar amount received by Metricom with respect to and/or deriving in any manner from Radios in the Public Way or the provision of Services (including new services), rendered, in whole or in part, via Radios in the Public Way, whether directly by Metricom or through a reseller, to subscribers with billing addresses in the City, excluding (i) the Public Ways User Fee, if any, payable pursuant to this Agreement; (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. 1.3 Agency. "Agency" means any governmental or quasi-governmental agency other than the City, including the Federal Communications Commission and the PSC. 1.4 City. "City" means the City of Riverside, Missouri. 1.5 Code. "Code" means the Municipal Code of the City, including all amendments thereto. 1.6 Facilities Map. "Facilities Map" means a pole list showing the proposed and actual locations of the installation of Radios. 1.7 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. 1.8 Installation Date. "Installation Date" shall mean the date that the first Radio is installed by Metricom pursuant to this Agreement. 1.9 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 City, Metricom or Metricom's agents providing Services, and all subsequent amendments thereto, as may be in effect either as of the Effective Date or at any time during the presence of Radios in the Public Way. Public Way Use Permit and Agreement City of Riverside :: Metrirom, Ircc. pnge 2 1.10 Metricom. "Metricom" means Metricom, Inc., a corporation duly organized and existing under the laws of the State of Delaware, and authorized to conduct its business in Missouri and its lawful successors, assigns, and transferees. 1.11 PSC. " PSC" means the Public Service Commission of Missouri. 1.12 Radio. "Radio" means the radio equipment, whether referred to singly or collectively, to be installed and operated by I~letricom hereunder, and described in the attached appendix to this Agreement. No other sort of telecommunications or communications equipment or facilities shall be deemed included in the term Radio. 1.13 Ricochet. Ricochet® means Ricochet® MicroCellulaz Digital Network, a wireless, microcellulaz digital radio-based communications network owned and operated by Metricom. 1.14 Services. "Services' means the mobile digital communications services provided through Ricochet® by Metricom, at speeds no less than 128 Kbps, which services consist principally of high speed wireless Internet, e-mail and local azea network access and may include transmission of sound and video images; provided, however, that "Services" shall not be construed, interpreted or applied to authorize either real time telecommunications services (including telephone and voice) or video or cable television communications services except as may be considered standard Internet content. ARTICLE 2. TERM 2.1 Initial Term. This Agreement shall be effective as of the Effective Date and shall extend for a term of five (5) years from the date hereof, unless it is earlier terminated by either party in accordance with the provisions herein. 2.2 Renewal. The term of this Agreement shall be renewed automatically for two (2) successive terms of three (3) years each on the same terms and conditions as set forth herein, unless either party notifies the other of its intention not to renew not less than thirty (30) calendar days prior to commencement of the relevant renewal term. Public Way llse Permit and Agreement City of Rruerside :: Mehicom, lnc. page 3 ARTICLE 3. ScorE of UsE Pex1HTT. 3.1 Grant. Pursuant to the terms and conditions of this Agreement, Metricom may install Radio on Facilities within the Public Way solely for the provision of Services; provided Metricom has obtained all applicable consents, approvals and permits. Metricom represents that in offering its Services, neither Metricom nor any Affiliate of Metricom is itself a direct retailer, distributor or provider of any cable, telephone or open video services (and will not provide cable, telephone or open video services without a franchise in accordance with federal law) or telecommunications services subject to the 1996 Federal Telecommunications Act, beyond the services that may be otherwise available through the Internet from a source other than Metricom, regardless of access. If at any point Metricom desires to expand its Services beyond the definition of Services in Article I of this Agreement, it must notify the City of such plans, submit a supplemental application and receive approval prior to the implementation of the new Services. 3.2 Use Permit Extends Only to Installation of Radios. The rights granted Metricom under this Agreement extend only to the installation of the Radios on Facilities and does not create any right to install different or additional Communications Facilities in the Public Way. Further, should Metricom decide to lease, sell or give capacity or services for resale to another Person to provide service using Metricom's Radios, Metricom shall provide to the City the identity of such resellers, updated from time to time in accordance with the Code, which may be provided on Metricom's website, located as of the Effective Date at www.metricom.com. Under no circumstances is the closing, excavation or opening of any Public Way authorized or permitted under this Agreement. 3.3 Attachment to Third-Party Property. Subject to the City's approval of the Facilities I~1ap and Metricom obtaining the permission of the owner(s) of the affected Facilities, the City hereby authorizes and permits Metricom to enter upon the Public Way in connection with the attachments, installation, operation, maintenance, removal, reattachment, reinstallation, relocation, and replacement of such number of Radios specified in Section 3.12 in or on properly permitted Facilities located within the Public Way as may be lawfully permitted by the owner thereof. Metricom shall, prior to any installation, furnish to the City documentation of such permission from the owner. The City agrees to provide to Metricom, at no cost or expense to the City, such information as Metricom may reasonably require in the course of obtaining where necessary the consents of the owner(s) of Facilities located in the Public Way, provided such Public Way Use Permit and Agreement City of Riverside :: McMwm, Inc. Page ~t information is readily on hand at the City and is not privileged, proprietary or protected by law from disclosure. 3.4 City's Continuing Rights. Any and all rights expressly granted to Ivietricom 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 City under applicable Laws, (including all reservations and preservations under Chapter 250) with respect to any and all parts of the Public Ways, including the right to use the Public Ways exclusively or concurrently with any other Person or Persons or Agency or Agencies and shall be further subject to all deeds, easements, dedications, conditions, covenants, restrictions, encumbrances, and claims of title of record which may affect the Public Ways. 3.5 Nonexclusive Agreement. The rights granted to Metricom will never be deemed to be exclusive to Metricom, and the City reserves the right to grant a similar use of Public Ways to any Person at any time during the term hereof. 3.6 No Grant of Property Interests. Nothing in this 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. 3.7 Review by City. Any work performed pursuant to the rights granted under this Agreement shall be subject to the prior review and approval of the City as set forth in the Code. 3.8 Exclusion of Certain Facilities. Prior to or after Metricom furnishes the City with any Facilities Map, the City may in its discretion designate certain Facilities to be excluded from those on which Radios may be installed by Metricom, including, but not limited to, ornamental or similar specially-designed street lights, or other Facilities which in the reasonable judgment of the City Engineer do not have electrical service adequate or appropriate for Metricom's Radios or cannot safely bear the weight or wind loading caused by the presence of Metricom's Radios or would be rendered unsafe or unstable by the installation of a Radio. 3.9 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, maintenance, repair, replacement, enlargement or 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 Pu61ic bVay Use Permit and Agreement Ci[y of ftivenide :: Metrimm, /nc. page ~ other communications, utility, or municipal property, without the express written approval of the owner or owners of the affected property or properties, except as permitted by applicable Laws. Metricom will correct any interference problems attributed to its equipment or operations with forty eight (~18) hours of notification by the City; provided, however, that in cases of emergency or immediate threat to public safety, as determined in the sole discretion of the City, the City may shut down any Metricom equipment or operations and shall immediately notify Metricom of the action. 3.10 Compliance with Laws. Metricom shall comply with Chapter 250 of the Code and all other applicable Laws and this Agreement shall be interpreted in a manner to conform to the requirements of the same. 3.11 Obtaining Required Permits. If the attachment, installation, operation, maintenance, location or any other action with respect to the Radios in the Public Ways shall require any other permits or licenses, Metricom shall apply for the appropriate permits or licenses and pay any standard and customary permit fees. City shall promptly respond in accordance with its standard practices to Metricom's requests for City permits. 3.12 Location of Radios. After Metricom's review of available street light maps, and prior to deployment of the Radios, Metricom shall furnish to the City a Facilities Map for initial installation and for each installation or relocation of Radios thereafter. The City shall use its reasonable efforts to either approve, reject, or modify the same within thirty (30) days following receipt of the Facilities Map. Metricom may not begin deployment of the Radios until the Facilities Map has been approved by the City, which approval shall not be unreasonably withheld, conditioned or delayed provided Metricom is in full compliance with this Agreement. Following completion of the initial installation, Metricom shall promptly furnish to the City an updated Facilities Map showing the exact location of the Radios in the Public Ways and supplemental documentation showing the removal and/or abandonment of existing Radios. This Agreement shall allow Metricom to install not more than 90 Radios in the Public Way provided such Radios are at least apart, which number may be increased only upon prior approval by the City. 3.13 Engineer's Certification. At the time of execution of this Agreement Metricom shall provide the City and attach to this Agreement as Exhibits hereto a certified Standard Wind Loading Study and a certified Attachment Detail showing Pubiic Way Use Permit and Agreernenf City of Riverside :: /vleMcom, Lrc. pnge 6 typical installation for the Radios for each type of mast arm or pole to be used by Metricom in the Public Way. 3.14 Wired Access Points Not Included. This Agreement addresses the placement of Radios on Facilities within the Public Way, and does not grant any permission to Metricom to install or maintain any Wired Access Points within the City. ARTICLE 4. COMPENSATION AND OTHER FEES 4.1 Public Way User Fees. In order to compensate City for IVletricom's use of the Public Way, Metricom shall pay to the City, on a monthly basis, an amount equal to the greater of (a) five percent (5%) of Adjusted Gross Revenues which amount may be collected from subscribers of the Services with billing addresses in the City; or (b) $.50 for each Radio installed on Facilities within the Public Way (the "Public Way User Fee"). The Public Way User Fee shall be payable for the period commencing upon the date Metricom installs the first Radio on Facilities within the Public Way and ending on the date of termination of this Agreement, and shall be due on or before the 45ei day after the end of each month 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 month for which compensation has been paid. Metricom shall furnish to the City with each payment of compensation required by this section a statement, executed by an authorized officer of Metricom or his or her designee, showing the amount of 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. 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 Agreement occurring prior thereto, nor shall the acceptance by the City of any such payments preclude the City from later establishing that a larger amount was actually due or from collecting any balance due to the City. 4.1.1 Reduction of Public Way User Fee by Amount of Utility Users or Communications Tax. Notwithstanding anything to the contrary in this Agreement, if the Services are subject to a utility users tax, communications tax, or other similar tax or fee which accrues to the City by operation of the City's Municipal Code or other applicable law, then the amount of the Public Way User Fee shall be reduced by the amount of the applicable utility users tax, communications tax, or such other similar tax or fee related to the same period as Public Way Llse Permit and Agreement City of Rrcxrside :: Metricom, Inc. pnge 7 further detailed in the Code. This provision does not include income taxes, sale taxes, use taxes or any other similar taxes. 4.1.2 Accounting Matters. Metricom shall keep accurate books of account at its principal office in San Jose or such other location of its choosing for the purpose of determining the amounts due to the City under this Agreement. Metricom shall at all times notify the City of the location of such books. The City may, from time to time, inspect, examine or audit Metricom's books of account and all documents, records and other information that pertains to the Radios and the Service at any time during regular business hours on thirty (30) days' prior written notice, but in each case only to the extent necessary to confirm the accuracy of payments due under this Agreement and Metricom's compliance with this Agreement and Chapter 250 of the Code. Such information shall be made available at City Hall. The City agrees to hold in confidence any non-public information it learns from Metricom to the fullest extent permitted by Law. 4.2 Electricity Charges. Metricom shall be solely responsible for the payment of all electrical utility charges to the applicable utility com any based upon the Radios' usage of electricity and applicable tariffs. Metricom shah provide the City with documentation sufficient to demonstrate that it has established an unmetered rate for the consumption of electricity by the Radio(s) with the appropriate electricity distributor and/or supplier, as the case may be, to provide for its payment for the use of unmetered electricity to operate the Radio(s). 4.3 Reimbursement of City's Project Review Expenses. Prior to the execution of this Agreement, Metricom shall reimburse the City $2,500 for City expenses relating to the preparation and review of this Agreement. The reimbursement provided for in this Section shall not replace or excuse Metricom from the payment of any applicable permit fee for work undertaken in connection with this Agreement, nor shall it be credited against any other amounts due to the City pursuant to this Agreement. 4.4 Most Favored Municipality. Should Ivfetricom enter into aright-of-way permit and facility use permit or other similar agreement, permit, license or franchise, after the Effective Date with a Kansas City area municipality, which agreement contains a definition of Adjusted Gross Revenues and/or a formula for calculating the fees which are in the City's sole opinion superior to those in this Agreement, Metricom shall, within sixty (60) days of the request by the City, modify this Agreement to incorporate the same or substantially similar superior benefits. Pu61ic Wrry Use Permit and Agreernerd City of Ricrrside :: Metnrorn, lnc. pnge 3 4.5 Municipal Subscriber Program. In consideration of the City's execution and delivery of this Agreement, the City shall have the right throughout the term of this Agreement to receive up to the maximum number specified below (based upon the City's population) of free Ricochet basic service subscriptions. The number of free subscriptions which the City may receive shall be determined in accordance with the City's official population at the time this agreement is signed and upon each renewal hereof, as shown on the latest available census data. The number of subscriptions allowed per population is as follows: Population Size Maximum Subscriptions < 9,999 2 10,000 - 24,999 3 25,000 - 49,999 4 50,000 - 74,999 5 75,000 - 99,999 6 100,000 -149,999 8 150,000 -199,999 10 200,000 - 299,999 12 300,000 - 399,999 14 400,000 - 499,999 16 500,000 + 20 The Administrator shall be responsible for ordering and receiving any subscriptions. To take advantage of this program, the Administrator should contact Metricom's local Office (typically the Local Market Manager). The City's right to use the subscriptions shall commence at the time the Ricochet service is commercially available in the City and shall extend until the expiration of the term of this Agreement. The City's use of the subscriptions shall be subject to the standard Ricochet terms and conditions of use or of the chosen retailer of the Ricochet services whichever the municipality obtains service. The City understands and agrees that modems and equipment required to utilize the subscriptions and any additional service subscriptions or service options the City may desire will need to be obtained from an authorized retailer at market rates Public Way Use Permit and Agreement City of Riverside :: Metricorn, lnc. page 9 current from time to time. The City shall use 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 same by any other person, excepting a local public entity that provides public service within the corporate boundaries of the City (e.g., municipal schools, public safety, or fire departrnents, etc.). ARTICLE 5. REMOVAL AND RELOCATION OF RADIOS 5.1 Relocation. Metricom understands and acknowledges that City may require Metricom to remove or relocate one or more of its Radios from specific Facilities, and Metricom shall at City's direction remove or relocate, pursuant to Chapter 250 of the Code, such Radios at Metricom's sole cost and expense, whenever City determines that the relocation is needed for any of the purposes set forth in Chapter 250, including but not limited to: (a) if required for the construction, completion, repair, relocation, or maintenance of a governmental or public project; (b) because the Radio has been abandoned; (c) because the Radio is interfering with or adversely affecting proper operation of light poles, traffic signals, or other Municipal Facilities; or (d) to protect or preserve the public health or safety. If Metricom shall fail to remove or relocate any Radios as requested by the City within a reasonable time under the circumstances in accordance with the foregoing provision, but in any event not to exceed thirty (30) days, City may remove or relocate the Radios at Metricom's sole cost and expense, without further notice to Metricom, and Metricom shall, within thirty (30) days following issuance of invoice to same, reimburse the City for all expenses incurred in the removal, relocation and disposal of the Radios. The provisions of this Article and its further subsections shall survive the expiration or earlier termination of this Agreement or renewal thereof. 5.2 Damage to Public Ways. Whenever the installation, repair, removal or relocation of Radios is required or permitted under this Agreement or if Metricom, its employees, agents, contractors or subcontractors takes any other action or fails to take any action required hereunder, and such installation, repair, removal, relocation, or action or inaction shall cause the Public Ways or Facilities to be damaged or to have been altered in such a manner as to make them unusable, unsafe, or in violation of electrical codes or other applicable law, Metricom, at its sole cost and expense, shall immediately repair and return the Public Ways and Facilities to its original condition and 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 Pu6licWay Use Permit and Agreement City of Rirxrside :: Metricom, Inc. page ]0 the proposed costs to be incurred or the actual costs incurred by the City. Upon the receipt of a demand for payment by the City, iVfetricom shall within thirty (30) days reimburse the City for such costs. ARTICLE E. INDEMNIFICATION AND WAIVER 6.1 Indemnification. Metricom agrees to indemnify, defend, protect, and hold harmless the City, its mayor and board members, officers, and employees from and against any and all claims, demands, losses, damages, liabilities, fines, charges, penalties, administrative and judicial proceedings and orders, judgements, remedial actions of any kind, all costs and cleanup actions of any kind, and all costs and expenses incurred in connection therewith, including, but not limited to, reasonable attorney's fees, expert witness fees and costs of defense (collectively, the "Losses") arising out of or resulting from any and all acts or omissions of Metricom, or its officers or employees or its authorized agents or contractors in the construction, installation, operation, maintenance, repair or removal of Radios or in providing or offering Services utilizing, in whole or in part, the Public Way, whether such acts omissions are authorized, allowed or prohi'oited by this Agreement, the Code or any other agreement or Law, except to the extent arising from or caused by the gross negligence or willful misconduct of the City, its council members, officers, employees, agents, or contractors. The foregoing notwithstanding, under no circumstances shall the issuance of any permit or certificate provided for under the City Code to Metricom or another Person constitute an act of negligence or willful misconduct. Nothing set forth in this Agreement shall be deemed a waiver by the City of any defenses or immunities relating to Metricom or its property, or to any other Person or their property, that are or would be otherwise available to the City or its corporate authorities, officers and employees under the provisions of any applicable tort immunity act or otherwise avaIlable to local governments and their corporate authorities, officers and employees under the common law of the State of Missouri or the United States. The provisions of this Article shall survive the expiration or earlier termination of this Agreement or renewal thereof. 6.2 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. Actions by Persons other than the City or its corporate authorities, officers or employees shall be deemed beyond the reasonable control of the City. Public Way Use Permit and Agreernerd City of Riverside :: Metricom, Iru. page 71 6.3 Limitation of City's Liability. The City shall be liable only for the cost of repair to damaged Radios arising from the gross negligence or willful misconduct of City, its employees, agents, or contractors. 6.4 Bond or Other Security 6.4.1 Prior to the commencement of any work under this Agreement, Metricom shall furnish or cause to be furnished and shall thereafter keep enforced to City a good and sufficient bond, substantially in the form attached hereto as Exhibit "A" entitled Surety Bond, in an amount equal to Thirty Dollars 030.00) per Radio, or such other comparable security instrument as may be approved by both the Administrator and Metricom, to secure the faithful performance by Metricom of all of the work, construction, installation, removals and all other actions required to be performed by Metricom under this Agreement within the time periods set forth hereunder. 6.4.2 As long as the bond will not be reduced, expire or terminate during such time period, before the surety is required to perform under the bond or before any sums are withdrawn from other security the City shall give written notice to Metricom: (a) describing the act, default or failure to be remedied, or the damages, cost or expenses which the City has incurred by reason of Metricom's act, omission or default; (b) providing a reasonable opportunity for Metricom to remedy the existing or ongoing default or failure, if applicable; (c) providing a reasonable opportunity for Metricom to pay any monies due the City before the City withdraws the amount from the security bond or other security, if applicable; (d) that Metricom will be given an opportunity to review the act, default, or failure described in the notice with the Administrator; (e) a period of thirty (30) days shall be considered the timely grant of a reasonable opportunity to cure any default or failure provided Public Way Use Permit and Agreement City of Riverside :: McMcom, Inc. page 72 however, that if the reason for the notice is the failure to provide a replacement bond at least fourteen (14) days prior to the expiration of a bond, a notice of seven (7) days shall be sufficient. 6.4.3 Metricom shall replenish the bond or other security within fourteen (14) days after written notice from the City that there is a deficiency in the amount of the bond or security. ARTICLE 7. INSURANCE 7.1 Required 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 01,000,000) per occurrence (combined single limit), including bodily injury and property damage, and in an amount not less than Two Million Dollars ($2,000,000) annual aggregate for each personal injury liability and products-completed operations. These amounts will be adjusted if the potential limits of liability to the City aze increased beyond the current provisions of Section 537.610, Revised Statutes of Missouri, or its successor provision, either through legislative or judicial action, or by operation of the annual adjustment provided by Section 537.610.5 RSMo. City agrees to provide written notice of such adjustment(s) to Metricom prior to the effective date thereof. 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 Agreement or related in any manner to the presence of Radios in the Public Way. 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 ninety (90) days' advance written notice of such cancellation or change and the City has approved such change or the replacement policy. Metricom shall be responsible for notifying the City of such change or cancellation. In addition, Metricom shall require its contractors to maintain the same insurance coverages and limits specified herein. 7.2 Filing of Certificates and Endorsements. Prior to the commencement of any work pursuant to this Agreement, Metricom shall file with the City the required original certificate(s) of insurance with endorsements, which shall state the following: Public Way Use Permit and Agreement City of Riverside :: Metricorn, Inc. page 13 (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 ninety (90) 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 Section 8 below. 7.3 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 01,000,000) and shall furnish the City with a certificate showing proof of such coverage. 7.4 Insurer Criteria. Any insurance provider of Metricom shall be admitted and authorized to do business in the State of Missouri and shall carry a minimum 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 X500,000,000 to X750,000,000 based on capital, surplus, and conditional reserves). Insurance policies and certificates issued by non-admitted insurance companies are not acceptable. 7.5 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. Public Way Use Permil and Agreement City of Riverside :: Metrirorn, Inc. page 14 ARTICLE 8. NOTICES 8.1 Notice Requirements. 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, 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: i f to the City: CITY OF RIVERSIDE Attn: City Administrator 4500 NW High Drive Riverside, MO 64150 With a copy to: STEPHEN A. CRYSTAL, ESQ. Armstrong Teasdale LLP 2345 Grand Blvd., Suite 2000 Kansas City, MO 64108 if to Metricom: METRICOM, INC. Attn: Network Real Estate 333 W. Julian Street San Jose, CA 95110 8.2 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 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. ARTICLE 9. TERMINATION This Agreement may be terminated by either party upon a default of any 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 Public Way Use Permit and Agreement City of Ricrrside :: McMcom, (nc. page 75 forty-five (45) days, if the defaulting party fails to commence such cure within forty-five (45) days or fails thereafter diligently to prosecute such cure to completion), provided that the grace period for any monetary default shall be ten (10) days from receipt of notice. Notwithstanding the provisions regarding the opportunity to cure defaults, the City may terminate this Agreement if (a) Metricom becomes insolvent, unable or unwilling to pay its debts, or adjudged bankrupt; (b) Metricom Abandons its Radios and does not effectuate a cure within forty five (45) days of receipt of written notice from the City; (c) Metricom attempts to or does practice any fraud or deceit in its conduct or relations with the City under this Agreement; or (d) the City condemns substantially all of the property of Metricom within the City by lawful exercise of eminent domain, in which case the parties shall, for a period of at least one hundred eighty (180) days, negotiate in good faith the possible relocation options for the Radios prior to the City's abIlity to terminate this Agreement. ARTICLE lO.AssICNMEN'r This Agreement shall not be assigned by Metricom without the express written consent of the City. It shall not be deemed reasonable for the City to withold its consent to any such proposed transfer, provided that (i) any such transferee will have a financial strength after the proposed transfer at least equal to that of Metricom prior to the transfer, (ii) any such transferee assumes all the obligations of Metricom hereunder, and (iii) Metricom shall not be released from the obligations of this Agreement by virtue of such transfer; unless the proposed transferee has a record of performance under similar agreements which is unacceptable to the City under a reasonable standard of evaluation. Lack of prior specific experience in administering a system providing the Services described in this Agreement shall not, by itself, be deemed a reasonable basis for refusing or conditioning the City's consent. Metricom shall give to the City written notice of any proposed transfer for which notice is required hereunder and will provide the City with whatever documentation the City may reasonably require to evaluate the proposed transfer. The City agrees to respond to any request for its consent hereunder within forty-five (45) days after receipt of such request. ARTICLE 11.MISCELLANEOUS PROVISIONS The provisions which follow shall apply to the obligations of the parties under this Agreement. 11.1 Nonexclusive Use. Metricom understands that this Agreement does not provide Metricom with exclusive use of the Public Way or any Facility and that City shall have the right to permit other providers of services, including other Pablic Way Use Permit and Agreement City oJRiverside :: Metrirorn, brc. page ] 6 communications services, to install equipment or devices in and use the Public Way and Facilities. 11.2 Waiver of Breach. The waiver by either party of any breach or violation of any provision of this Agreement shall not be effective unless in writing and 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 Agreement. 11.3 Severability of Provisions. Except as otherwise provided herein, if any one or more of the provisions of this Agreement shall be held by court of competent jurisdiction in a final judicial action to be void, voidable, or unenforceable, such provision(s) shall be deemed severable from the remaining provisions of this Agreement and shall not affect the legality, validity, or constitutionality of the remaining portions of this Agreement. Except as otherwise provided herein, 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. A finding that Article 4, Compensation, is void, voidable or uninforceable is not included within this provision and shall not be considered severable. 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 or any other action in connection with the Public Way. 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 Agreement shall be governed and construed by and in accordance with the laws of the State of Missouri, 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 Missouri, County of Platte. 11.6 Consent Criteria. Except as otherwise provided, 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 provided that the party requesting such is in full compliance with this Agreement, including all Laws. Public Way Use Permit and Agreement City of Riverside :: Metricorn, 6rc. page 17 11.7 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 this Agreement. 11.8 Amendment of Agreement. This Agreement may not be amended except pursuant to a written instrument signed by both parties. 11.9 Exhibits. All exhibits attached to this Agreement and any addenda, attachments, and schedules which may from time to time be attached to any duly executed amendment to this Agreement are by such reference incorporated in this Agreement and shall be deemed a part of this Agreement. 11.10 Audit. The Administrator, city auditor, internal auditor, commissioner of revenue, and director of public works have the right to audit this Agreement and all books, documents and records relating to it pursuant to City ordinance. The books, documents and records of Metricom in connection with this Agreement will be made available by Metricom in the office of the Administrator, city auditor, internal auditor, commissioner of revenue, or director of public works for inspection and audit within ten (10) days after the request is made. 11.11 Gratuities. Metricom certifies that it has not and will not offer or give any City employee or officer a gratuity or an offer of employment in connection with any decision, approval, disapproval; recommendation or preparation of any part of this Agreement, rendering of advice, investigation, auditing or in any other advisory capacity in any proceeding or application, request for ruling, determination, claim or controversy, or other particular matter, pertaining to any contract or subcontract, or to any solicitation or proposal. 11.12 No Kickbacks. Metricom certifies that no payment, gratuity, offer of employment or benefit has been or will be made by or on behalf of or solicited from a subcontractor under a contract to Metricom or higher tier subcontractor or any person associated therewith as an inducement for the award of a subcontract or order. 11.13 Conflicts of Interest. Metricom certifies that ne officer or employee of the City has, or will have, a direct or indirect financial or personal interest in this Public Way Use Permit and Agreement City of Riverside :: Metrirorn, (nc. page 13 Agreement and that no officer or employee of the City, or member of such officer's or employee's immediate family, either has negotiated, or has or will have an arrangement, concerning employment to perform services of behalf of Metricom in this Agreement. 11.14 Successors and Assigns. This Agreement is binding upon the successors and assigns of the parties hereto. 11.15 No Third Party Beneficiaries. This Agreement creates no rights, title or interest in any Person whatsoever (whether under a third party beneficiary theory or otherwise) other than Metricom and the City. 11.16 Taxation. The Public Way is presently exempt from real estate taxes. In the event that this Agreement, any provision thereof, or any use of the Public Ways pursuant to the terms of this Agreement shall result in said Public Way becoming subject to such real estate taxes, then Metricom shall be liable to the City for its pro rata payment of such real estate taxes and shall reimburse the City for any such taxes paid within thirty (30) days following issuance of an invoice for same. Metricom shall have the right to contest all taxes, assessments, charges and impositions as it may become liable for under this Section and City agrees to join in such contest if required by law and to permit Metricom to proceed with the contest in City's name, provided that the expense of the contest is borne solely by Metricom. In the event City fails to timely notify Metricom of such a real estate tax liability and that failure to timely notify results in the inability of Metricom to file an appeal, then the City shall be liable for such real estate taxes for the affected year and Metricom is relieved of such liability for the affected year. 11.17 Relationship of Parties. Metricom and City shall be and act as independent contractors, and under no circumstances shall this Agreement be construed as one of agency, partnership, joint venture, or employment between the parties. 11.18 Advertising, Signs or Extraneous Markings. Metricom shall not place, cause or permit to be placed any sort of signs, advertisements or other extraneous markings, whether relating to Metricom or any other Person, on any Radio or other equipment located on a Facility within the Public Way, excepting such labels, numbers or other marks on the Radio(s) as are reasonably necessary to identify the Radio or Public Way Use Permit and Agreement City of Riverside :: McMrorn, Lu. pnge ] 9 Metricom for service, repair, maintenance or emergency purposes, or as may be otherwise required to be affixed by applicable law or regulation. 11.19 Federal, State and City Jurisdiction. This Agreement shall be construed in a manner consistent with all applicable federal, state, and local laws. Notwithstanding any other provisions of this Agreement to the contrary, the construction, operation and maintenance of i~fetricom's Radios shall be in accordance with all laws and regulations of the United States, the state and any political subdivision thereof, or any administrative agency thereof, having jurisdiction. Both parties acknowledge that the technical specifications and performance of Metricom's Radios are currently subject to the exclusive jurisdiction of the Federal Communications Commission. Metricom shall meet or exceed the most stringent technical standards set by regulatory bodies, including the Federal Communications Commission, now or hereafter having jurisdiction. Any actual or anticipated radio interference caused by either the presence of the Radios or the presence of any such other communications equipment or devices in the Public Way shall be resolved by Metricom and any such other providers without cost to the City on the basis of the applicable rules, regulations, practices and procedures of the Federal Communications Commission or other applicable regulatory entity. Metricom's rights are subject to the police powers of the City to adopt and enforce ordinances necessary to the health, safety, and welfare of the public. Metricom shall comply with all applicable laws and ordinances enacted pursuant to that power. Additionally, failure by Metricom to comply with any applicable law or regulation may be considered a default of a material covenant or term of this Agreement, subject to the cure provisions of Article 9. 11.20 Reservation of Rights 11.20.1 In addition to any rights specifically reserved to the City by this Agreement, the City reserves to itself every right and power available to it under the constitutions of the United States and the State of Missouri, and any other right or power, including, but not limited to all police powers and authority to regulate and legislate to protect and promote the public health, safety, welfare, and morals, and including the possible removal and/or relocation of Radios. Further, the City hereby reserves to itself the right to intervene in any suit, action or proceeding involving the provisions herein. 11.20.2 Notwithstanding anything to the contrary set forth herein, the provisions of this Agreement shall not infringe upon the rights of any Person Public Way Use Permit and Agreement City of Rizxrside :: Metricom, Inc. page 20 to any applicable state or federal statutes, including, but not limited to the right to occupy the Public Way. 11.21 Entire Agreement. This Agreement contains the entire understanding between the parties with respect to the use of the Public Way by Metricom to provide Service. 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. City: CITY OF RIVERSIDE, a Missouri municipal corporation By: a>= > , ]name edJ Its: Date: Nl,<rort,hor- ~, , 2000 Metricom: METRICOM, INC., a Delaware corporation By: (mm~e typed] ItS: Date: 2000 PublicW'ay Llse Permit and Agreement City of Riverside :: McMcwn, Lu. page 21 [EXHIBIT A] [FORM OF SURETY BOND] Bond Number: SURETY BOND KNOW ALL i~1EN 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 (S ); 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 Public Way Use Permit mid Agreement City of Riverside :: McMcmn, Inc. page 22 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. 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 prior written notice. Pn6licWay Use Permit and Agreement City of Rrc~erside :: Metricorn, Inc. page 23 SIGNED AND SEALED this day of - 20 PRINCIPAL SURETY (Type Company Name) By: f;y: Title: Title: By: Address: Telephone: (Affix Corporate Seals) (Attach Acknowledgments of both Principal and Surety signatures) Public Way Use Permit and Agreement City of Riverside :: Metrimm, Inc. page 24