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HomeMy WebLinkAbout1999-436F \,haredWepALOL\Our Doeumenh\Ordinance NMMelncom doc ORDINANCE NO lageb AN ORDINANCE GRANTING A FRANCHISE TO METRICOM, INC, FOR THE USE AND OCCUPANCY OF THE PUBLIC RIGHTS -OF -WAY OF THE CITY OF DENTON FOR TELECOMMUNICATIONS PURPOSES, PROVIDING FOR CONDITIONS OF SUCH USE, PROVIDING FOR COMPENSATION FOR SUCH USE AND OCCUPANCY, AND ORDAINING OTHER PROVISIONS RELATED TO THE SUBJECT MATTER HEREOF WHEREAS, Metricom, Inc, a Delaware Corporation, has requested permission to use and occupy the Public Rights -of -Way of the City of DENTON for the purposes of installing radio receivers and transmitters on aerial facilities in the Rights -of -Way, and WHEREAS, the City of DENTON has the authority under its Charter and state law to grant franchises to persons using and occupying the Public Rights -of -Way for the conduct of private businesses, and WHEREAS, Metricom is in the business of constructing, maintaining, and operating a wireless digital data communications radio network known as Ricochet®, a network operated in accordance with regulations promulgated by the Federal Communications Commission, utilizing Radios (as defined in Section 2 below) and related equipment certified by the Federal Communications Commission, and WHEREAS, Metncom wishes to locate, place, attach, install, operate, and maintain Radios on facilities owned by the City, as well as facilities owned by third parties, located in the Municipal Right -of -Way for purposes of operating Ricochet®, NOW, THEREFORE, BE IT ORDAINED BY THE CITY OF DENTON, TEXAS SECTION 1. GRANT OF AUTHORITY. (a) Subject to Metricom entering into a pole attachment agreement with the City for the attachment of Radio, Receivers and Transmitters (Radios) to Municipal Facilities, the City F \ehaadd\dept\LGL\Our Document\Ordinmcos 99Wemcom doc hereby grants to Metncom a franchise and authorizes and permits Metncom to enter upon the Municipal Right -of -Way and to locate, place, attach, install, operate, maintain, remove, reattach, reinstall, relocate, and replace Radios in or on Municipal Facilities for the purposes of operating Ricochet® and providing Services to Persons located within or without the limits of the City (b) Subject to Metncom obtaining the permission of the owner(s) of the affected non - Municipal Facilities property, the City hereby authorizes and permits Metncom 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, Metncom shall furnish to the City documentation of such permission from the individual utility or property owner responsible (c) In the performance and exercise of its rights and obligations under this franchise Metricom shall not interfere in any manner with the existence and operation of any and all public and private nghts-of-way, sanitary sewers, water mains, storm drains, gas mains, poles, aerial and underground electrical and telephone wires, cable television, and other telecommunications, service provider, utility, or municipal property, without the express written approval of the owner or owners of the affected property or properties, except as permitted by applicable Laws or this franchise, SECTION 2 DEFINITIONS For the purpose of this Ordinance, the following terms, phrases, words, abbreviations and their derivations shall have the meaning given herein When not inconsistent with the context, words used in the present tense include the future tense, words in the plural number include the Iun pnJWOctota 20 t999952" Page 2 of 23 F khnredWept\LGL\Our Do =mU\0rdmnnce9\99Wdncom doc singular number and words in the singular number include the plural number The word "shall" is always mandatory and not merely directory Words not defined shall be given their common and ordinary meaning (i) Agency - any governmental or quasi -governmental agency other than the City, including the Federal Communications Commission and the PUC (as such term is defined in Section 2(xrv) below) (n) City - the City of DENTON, Texas (m) Effective Date - the date, after adoption hereof by the City, that Metricom files its acceptance with the City, in accordance with the Provisions hereof (iv) Fee - any assessment, license, charge, fee, imposition, tax, or levy of general application to Persons doing business in the City lawfully imposed by any governmental body (but excluding any utility users' tax, franchise fees, telecommunications tax, or similar tax or fee) (v) Gross Revenues - the gross dollar amount accrued on Metncom's books for Services provided to its customers with billing addresses in the City, excluding revenue uncollectible from subscribers (i e , bad debts) with billing addresses in the City that was previously included in Gross Revenues Gross Revenues shall include franchise fees paid hereunder (vi) Installation Date - the date that the first Radio is installed by Metricom pursuant to this Ordinance (vn) Laws - 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 Wl9nmWO WW2%I999952 AM Page 3 of 23 F l ho d\dept\LGL\Our D cumenU\0rdlnnncesW9\MeMCem doc over the parties to this Ordinance, in effect either as of the Effective Date or at any time during the presence of Radios in the Municipal Right -of -Way (vim) Metricom - Metricom, Inc, a corporation duly organized and existing under the laws of the State of Delaware, and its lawful successors, assigns, and transferees (ix) Municipal Access Program - the discount program described in Section 9 below (x) Municipal Facilities - City -owned street light poles and lighting fixtures located within the Municipal Right -of -Way Municipal Facilities may refer to such facilities in the singular or individually, as appropriate to the context in which used (xi) Municipal Right -of -Way - the space in, upon, above (to the height of any Municipal Facilities), along, across, and over the public streets, roads, lanes, courts, ways, alleys, boulevards, and public thoroughfares of the City, as the same now or may hereafter exist, that are under the jurisdiction of the City This term shall not include county, state, or federal rights -of -way or any property owned by any Person or Agency other than the City, except as provided by applicable Laws or pursuant to an agreement between the City and any such Person or Agency (xii) Person - an individual, a corporation, a limited liability company, a general or limited partnership, a sole proprietorship, a joint venture, a business trust, or any other form of business entity or association (xiii) Provision - any agreement, clause, condition, covenant, qualification, restriction, reservation, term, or other stipulation in this Ordinance that defines or otherwise controls, establishes, or limits the performance required or permitted by any party to this Ordinance All Provisions, whether covenants or conditions, shall be deemed to be both covenants and conditions L pnn¢d Odobtt 201"9952 AM Page 4 of 23 P khared\dept\LGL\0ur D umeem\0M'n m\99Wem9om &G (xiv) PUC - the Public Utility Commission of Texas, or its successor agency (xv) Radio - the radio equipment, whether referred to singly or collectively, to be installed and operated by Metncom hereunder (xvi) Ricochet® or Ricochet® MCDN - the Ricochet® MicroCellular Digital Network, a wireless, microcellular digital radio communications network owned and operated by Metncom (xvn) Services - the wireless digital communications services provided through Ricochet® by Metncom and the installation and maintenance of same by Metricom (xvni) Ordinance - this Ordinance granting a franchise to Metricom SECTION 3. TERM. The franchise granted by this Ordinance shall be effective as of the Effective Date and shall extend for a term of eight (8) years commencing on the Installation Date, unless it is earlier terminated by either party in accordance with the provisions herein The term of this franchise may be renewed by agreement of the parties Negotiations for renewal should commence no later than six (6) months prior to the expiration date Either the City or Metncom may choose to not renew the franchise if terms satisfactory to either the City or Metncom are not negotiated SECTION 4. SCOPE OF USE AGREEMENT Any and all rights expressly granted to Metncom under this Ordinance, which shall be exercised at Metricom's sole cost and expense, shall be subject to the prior and continuing right of the City under applicable Laws to use any and all parts of the Municipal Right -of -Way exclusively or concurrently with any other Person or Persons and shall be further subject to all deeds, easements, dedications, conditions, covenants, restrictions, encumbrances, and claims of title of record which may affect the Municipal Right -of -Way Nothing in this Ordinance shall be Lin pnntMO be X 1999952 AM Page of 23 F l huedW,t\LGL\Out Documenb\Ordm9ncw\99U1amcam dac deemed to grant, convey, create, or vest in Metricoin a real property interest in land, including any fee, leasehold interest, or easement Any work performed pursuant to the rights granted under this Ordinance may, at the City's option, be subject to the reasonable prior review and approval of the City SECTION 5. CONDITIONS OF USE. (a) Metncom shall comply with all applicable Laws in the exercise and performance of its rights and obligations under this Ordinance (b) If the attachment, installation, operation, maintenance, or location of the Radios in the Municipal Right -of -Way shall require any permits, Metricom shall, if required under applicable City ordinances, apply for the appropriate permits and pay any standard and customary permit fees City shall promptly respond to Metncom's requests for permits and shall otherwise cooperate with Metricom in facilitating the deployment of Ricochet® in the Municipal Right -of -Way in a reasonable and timely manner The proposed locations of Metncom's planned initial installation of Radios shall be provided to the City prior to deployment of the I.. 4I Me (c) Upon the completion of installation Metricom promptly shall furnish to the City documentation, suitable to the City, showing the exact location of the Radios in the Municipal Right -of -Way (d) By allowing use of Municipal Facilities hereunder, City makes no representation to Metncom that the voltage of electrical power supplied to such Municipal Facilities is appropriate for Metncom's use City is under no obligation to change the voltage of electrical power supplied to Municipal Facilities in order to accommodate the use of such Municipal Facilities by Metncom WSI p.m of OClabalQ 1999952A Page 6 of 23 p \shored\dept\LGL\0ur Daumenu\0rdinwm\9%Mbtr,wm dm SECTION 6 COMPENSATION; DISCOUNTS; UTILITY CHARGES (a) Metncom shall be solely responsible for the payment of all lawful Fees in connection with Metncom's performance under this Ordinance, including those set forth below (b) As consideration for the use and occupancy of Municipal Right -of -Way and in order to reimburse City for any costs it may incur in connection with Metncom's entry upon and deployment within the Municipal Right -of -Way, Metncom shall pay to the City, on a quarterly basis, an amount equal to five percent (5%) of Metricom's quarterly Gross Revenues (the "Franchise Fee") Metncom may pass through to customers the Franchise Fee at its discretion The compensation provided under this section shall be payable for the period commencing upon the date that Metncom first provides Services to subscribers within the City using Radios installed pursuant to this Ordinance and ending on the date of termination of this Ordinance Such payments shall be due on or before the 15th day of the month after the end of each calendar quarter Within fifteen (15) days after the termination of this franchise, compensation shall be paid for the period elapsing since the end of the last calendar quarter for which compensation has been paid, (c) Metncom shall furnish to the City with each payment of compensation required by this section a statement, executed by an authorized officer of Metncom or his or her designee, showing the amount of Gross Revenues for the period covered by the payment If Metncom or the City discover that Metncom has failed to pay the entire or correct amount of compensation due, Metricom shall pay the City the full amount of such underpayment within thirty (30) days of discovery of the error or determination of the correct amount Any overpayment to the City through error or otherwise shall be refunded or offset against the next payment due from Metncom lul MnlM October 20 19999 52 AM Page 7 of 23 F khued\dept\LGL\Our OOcummd\Ordinmca\99WWnmm dm (d) 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 Ordinance 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 (e) No taxes, fees, or other payments by Metricom to the City, including without limitation ad valorem taxes or pole attachment fees shall operate to reduce the Franchise Fee payable to the City hereunder 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 for use of the Right -of -Way by operation of the City's Municipal Code or other applicable City 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 SECTION 7 RECORDS AND AUDITS. (a) Metricom shall keep accurate books of account at its principal office in Los Gatos, CA or such other location of its choosing for the purpose of determining the amounts due to the City under Section 6 above Upon fifteen (15) business days' prior notice, Metricom shall make its books of account relative to the City available for the City's inspection at a location in the Dallas -Fort Worth Area (b) The City may audit Metncom's books and records from time to time at the City's sole expense, but in each case only to the extent necessary to confirm the accuracy of payments due under Section 6 above However, if as a result of any audit the City determines that Metricom has underpaid the City by five percent (5%) or more, Metricom will promptly pay the full amount of the underpayment and shall promptly reimburse the City for its reasonable costs, including the costs of consultants, in performing the audit Um ryinted Ocwbn 7019" 952" Page 8 of 23 F �hwed\depl"Mor D0 enUQrdo,W=\99\Menc=doe (c) The City agrees to hold in confidence any non-public information it learns from Metricom to the fullest extent permitted by Law SECTION 8. ELECTRICITY CHARGES (a) Metncom 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 (b) The terms and conditions under which Metricom may use Municipal Facilities for which the City requires a pole attachment agreement shall be contained in a separate agreement This franchise is for use of Municipal Rights -of -Way only SECTION 9. MUNICIPAL ACCESS PROGRAM. (a) In further consideration of City's grant of this franchise to Metncom, City shall have the right throughout the tern of this franchise to purchase, when such service is commercially available in the City, up to the maximum number set forth below (based upon the City's population) of Ricochet® basic service subscriptions at the rate of fifty percent (50%) of the regular rate as current from time to time (b) The number of subscriptions which the City may purchase at the Municipal Access Program rate shall be determined in accordance with the City's official population, as determined by the City, as follows (a) for municipalities with a population of less than 100,000, up to a maximum of twenty (20) discount subscriptions, (b) for municipalities with a population of 100,000 to 249,000, up to a maximum of thirty (30) discount subscriptions, (c) for municipalities with a population of 250,000 to 500,000, up to a maximum of forty (40) discount subscriptions, and (d) for municipalities with a population of over 500,000, up to a maximum of fifty (50) discount subscriptions Nee nntW Onober 20 1999952A Page 9 of 23 P �hwed\dep6WL\Our DO enW\0rd1nances\"\Me1rtwm doc (c) City understands and agrees that Metncom's modems and equipment required to utilize the discounted subscriptions and any additional service subscriptions or service options the City may desire are expressly excluded from this special Municipal Access Program rate and may be obtained from either Metricom or an authorized retailer at market rates current from time to time or under other promotional programs which may be available from time to time in addition to the Municipal Access Program rate (d) 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 commercial use of the same by any other party SECTION 10. RELOCATION OF RADIOS. (a) Relocation at City's Request City may require Metricom to relocate one or more of its Radios from time to time, and Metricom shall at City's direction relocate such Radios at Metncom's sole cost and expense, whenever City reasonably determines that the relocation is needed for any of the following purposes (1) if required for the construction, completion, repair, relocation, or maintenance of a City project, (n) because the Radio is interfering with or adversely affecting proper operation of City -owned light poles, electric poles, traffic signals, or other Municipal Facilities, or (in) to protect or preserve the public health or safety In any such case, City shall use its best efforts to afford Metricom a reasonably equivalent alternate location If Metricom shall fail to relocate any Radios as requested by the City within a reasonable time under the circumstances in accordance with the foregoing provision, City shall be entitled to relocate the Radios at Metncom's sole cost and expense, without further notice to Metricom and without liability to Metncom for any damages occasioned thereby If relocation is required immediately in order to protect public health and safety, City shall not be required to provide an Len pnntW MWW201599952 A Page 10 of 23 F �hnred\depl\ WGur Dwumenra\0r4inmM\99\Mmri mdm alternate location at the time of removal, but shall use its best efforts to do so as soon as reasonably possible (b) Relocations at Metricom's Request In the event Metricom desires to relocate any Radios from one Municipal Facility to another, Metncom shall so advise City City will use its best efforts to accommodate Metricom by making another reasonably equivalent Municipal Facility available for use in accordance with and subject to the terms and conditions of this franchise and the pole attachment agreement (c) Damage to Municipal Right-of-Wav Whenever the removal or relocation of Radios is required or permitted under this Ordinance, and such removal or relocation shall cause the Municipal Right -of -Way to be damaged, Metncom, at its sole cost and expense, shall promptly repair and return the Municipal Right -of -Way in which the Radios are located to a safe and satisfactory condition in accordance with applicable Laws, normal wear and tear excepted If Metricom does not repair the site as just described, then the City shall have the option, upon five (5) days' prior written notice to Metncom, to perform or cause to be performed such reasonable and necessary work on behalf of Metncom and to charge Metncom for the proposed costs to be incurred or the actual costs incurred by the City at City's standard rates Upon the receipt of a demand for payment by the City, Metncom shall promptly reimburse the City for such costs (d) Metncom shall remove and replace or repair any non-functioning or malfunctioning Radio within seventy-two (72) hours of receiving notice of the malfunctioning or non-functioning Radio However, if the non-functioning or malfunctioning Radio is essential to the City's emergency communications network, then upon receipt of written or verbal notice from the City that functioning of the City's emergency communications network has been Laipnn5e]O W205999950A Page 11 of 23 r \shmadWepdLGL\Our Document,\0rdonwoc \99\Memcom doe impaired, Metncom shall replace or repair any such Radio as soon as possible with due regard to the critical nature of the City's use of such Radio (e) Upon the completion of each installation or removal of equipment by Metncom under this Ordinance and upon the expiration or earlier termination of this Ordinance, Metncom shall promptly restore all Municipal Rights -of -Way and Municipal Facilities on which Radios are installed, and any other areas affected by Metncom's activities, to a clean and safe condition The restoration of Municipal Rights -of -Way and Municipal Facilities shall be subject to inspections by the City, at the discretion of the City, and Metncom shall undertake additional restoration efforts as reasonably required by the City Repairs and restorations to Municipal Facilities included in a pole attachment agreement shall be governed by the terms of that agreement The provisions of this Section shall survive the expiration, completion, or earlier termination of the Ordinance SECTION 11. INDEMNIFICATION AND WAIVER (a) Metncom agrees to indemnify, defend, protect, and hold harmless the City, its council members, officers, and employees from and against any and all claims, demands, losses, damages, liabilities, fines, charges, penalties, administrative and judicial proceedings and orders, judgments, remedial actions of any kind, all costs and cleanup actions of any kind, and all costs and expenses incurred in connection therewith, including reasonable attorney's fees and costs of defense (collectively, the "Losses") directly or proximately resulting from Metncom's activities undertaken pursuant to this franchise, except to the extent arising from or caused by the negligence or willful misconduct of the City, its council members, officers, employees, agents, or contractors Lpd pooled Uebg2n, ,9999 52 a Page 12 of 23 P \,h.,&dept .000w Dxummu\Ordinanwa\99\Mnnwm dw (b) Waiver of Claims Metncom 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 (c) Limitation of City's Liability The City shall be liable only for the cost of repair to damaged Radios ansmg from the negligence or willful misconduct of City, its councilmembers, its officers, employees, agents, or contractors The City shall not be liable to Metncom or any other person for any interruption in Metncom's service or for any interference with the operation of Metncom's Radios ansmg from the City's use of its facilities and Rights - of -Way or from any other action of the City, its officers, agents, and employees (d) In no event shall the City or any of its officers or employees be liable to Metncom or any third party for any consequential, exemplary, or incidental damages, including but not limited to any lost profits, data, savings, or revenues, arising out of or in connection with this Ordinance or any other agreement Metncom may have with any of its subscribers, whether under tort, contract, or other theories of recovery, even if the City or its officers or employees have been advised of the possibility of such damages The franchise granted by this Ordinance is for the benefit of Metncom, any transferee or assignee in accordance with the provisions of Section 15, and the City, and not for the benefit of any other party It is not intended by any provision of any part of this Ordinance to create the public or any member thereof or any other person or business, whether for profit or not for profit, as a third party beneficiary hereunder, or to authorize any person not a party to this Ordinance to maintain a suit for damages of any sort pursuant to the terms or provisions of this Ordinance Lui p�mm NovaobaA I999 101 n Page 13 of 22 F khued\dep1\LGL\0ur Documeme\0rdm2nce5\99\Metncom doc SECTION 12. INSURANCE. (a) Metncom shall obtain and maintain at all times during the term of this Ordinance 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 Such insurance policies shall name the City, its council members, officers, and employees as additional insureds as respects any covered liability ansing out of Metrcom's performance of work under this Ordinance Coverage shall be in an occurrence form and in accordance with the limits and provisions specified herein Claims -made policies are not acceptable When an umbrella or excess coverage is in effect, coverage shall be provided in following form Such insurance shall not be canceled or materially altered to reduce the policy limits until the City has received at least thirty (30) days' advance written notice of such cancellation or change Metncom shall be responsible for notifying the City of such change or cancellation (b) Prior to the commencement of any work pursuant to this Ordinance, Metncom shall file with the City the required original certificates of insurance with endorsements, which shall clearly state all of the following (1) the policy number, name of insurance company, name and address of the agent or authorized representative, name, address, and telephone number of insured, project name and address, policy expiration date, and specific coverage amounts, (u) that the City shall receive thirty (30) days' prior notice of cancellation, and Wl plmtW Odobc]% 1999952 A Page 14 of 23 r\,hnred\dept\LGL\0ur Dmu W\OrNnancee\99WW,c.. dw (in) that Metricom's insurance is primary as respects any other valid or collectible insurance that the City may possess, including any self -insured retentions the City may have, and any other insurance the City does possess shall be considered excess insurance only and shall not be required to contribute with this insurance (c) The certificate(s) of insurance with endorsements and notices shall be mailed to the City at the address specified in Section 13 below (d) Metncom shall obtain and maintain at all times during the term of this Ordinance statutory workers' compensation and employer's liability insurance in an amount not less than Five Hundred Thousand Dollars ($500,000) and shall furnish the City with a certificate showing proof of such coverage (e) Any insurance provider of Metricom shall be admitted and authorized to do business in the State of Texas and shall be rated at least A X in AM Best & Company's Insurance Guide Insurance policies and certificates issued by non -admitted insurance companies are not acceptable (f) Any deductibles or self -insured retentions must be stated on the certificate(s) of insurance, which shall be sent to and approved by the City "Cross liability," "severability of interest," or "separation of insureds" clauses shall be made a part of the commercial general liability and commercial automobile liability policies LID pnnIW 000ba 201999952 AM Page 15 of 23 F lhmd\dept\LGL\Our D9eumenb\0rdmanw\99\4eo,e mdoe SECTION 13. NOTICES. (a) All notices which shall or may be given pursuant to this Ordinance shall be in writing and delivered personally or transmitted (a) through the United States mail, by registered or certified marl, 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 US mail or by overnight delivery service as just described, addressed as follows if to the City CITY OF DENTON Attn City Manager 215 E McKinney DENTON, Texas 76201 if to Metricom METRICOM, INC Attn Property Manager 980 University Avenue Los Gatos, CA 95032 (b) Notices shall be deemed given upon receipt in the case of personal delivery, three (3) days after deposit in the mail, or the next day in the case of 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 SECTION 14. TERMINATION. (a) The franchise granted by this Ordinance 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 falls LoAPHIRLWOobW201959952" Page 16 of 23 F \shored\dept\LOL\Our Docummle\0rdunancw\99\Memcom doe thereafter diligently to prosecute such cure to completion), provided, however, that the cure period for any monetary default, except as provided in Section 6(c), shall be ten (10) days from receipt of notice Except as expressly provided herein, the rights granted under this Ordinance are irrevocable during the term (b) Any termination of the franchise granted by this Ordinance in whole or in part shall not release Metricom from any liability or obligation hereunder which was accruing or had accrued at the time of termination, without limitation The provisions of Section 10 of this franchise shall survive the termination of this franchise SECTION 15 ASSIGNMENT. (a) Metricom's rights under the franchise granted by this Ordinance are valid for its individual business use only Metricom shall not lease or sublease or in any way provide rights to any other firm or person Any violation of this provision shall be grounds for immediate termination of the franchise by the City (b) Neither the franchise nor the rights and privileges grant hereunder shall be assigned by Metricom without the express written consent of the City, which consent shall not be unreasonably withheld, conditioned, or delayed Any attempted assignment in violation of this section shall be void (c) Notwithstanding the foregoing, the transfer of the rights and obligations of Metricom hereunder to a parent, subsidiary, successor, or financially viable affiliate shall not be deemed an assignment for the purposes of this Ordinance Metricom shall give the City thirty (30) days' prior written notice of any such transfer (d) All transferees and assignees hereunder shall be subject to all of the rights and obligations of Metricom under this Ordinance Loll Penal Wobe, 10, IM 952" Page 17 of 23 F \9hnredWept AWOur Documanh\OrdmancnW9\Memcom doc SECTION 16 MISCELLANEOUS PROVISIONS (a) Nonexclusive Use This Ordinance does not provide Metncom with exclusive use of the Municipal Right -of -Way or any Municipal Facility and City shall have the right to permit other providers of telecommunications services and other services deemed appropriate by the City to install equipment or devices in the Municipal Right -of -Way and on Municipal Facilities Nothing in tins Ordinance shall be construed to obligate the City to grant Metncom permission to use any particular facility or Right -of -Way not covered by this Ordinance (b) In order to assist Metncom in identifying potential interference situations, the City agrees to promptly notify Metncom of the approval of any proposal for the installation of communications equipment or devices in the Municipal Right -of -Way or on Municipal Facilities (c) Amendment of Ordinance This Ordinance may not be amended except pursuant to a written instrument signed by both parties (d) Severability of Provisions If any one or more of the Provisions of this Ordinance 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 Ordinance and shall not affect the legality, validity, or constitutionality of the remaining portions of this Ordinance Each party hereby declares that it would have entered into the agreement reflected by this Ordinance and each Provision hereof irrespective of the fact that any one or more Provisions be declared illegal, invalid, or unconstitutional (e) Contacting Metricom Metricom shall be available to the staff employees of any City department having jurisdiction over Metncom's activities twenty-four (24) hours a day, seven (7) days a week, regarding problems or complaints resulting from the attachment, installation, operation, maintenance, or removal of the Radios The City may contact by US( pnmMO WU 20 5999952" Page 18 of 23 f Vhwcd\dep&GL\our Dmum=U\0rdlnnn=\99\Mnrlwm dw telephone the network control center operator at telephone number (800) 873-3468 regarding such problems or complaints (f) Governing Law Jurisdiction Venue This Ordinance shall be governed and construed by and in accordance with the laws of the State of Texas, without reference to its conflicts of law principles If suit is brought by a party to this franchise, the parties agree that trial of such action shall be vested exclusively in the state courts of Texas, County of Denton, or in the United States District Court for the Eastern District of Texas (g) Attorneys' Fees Should any dispute arising out of this Ordinance lead to litigation, the prevailing party shall be entitled to recover its costs of suit, including reasonable attorneys' fees (h) Successors and Assigns The provisions of the franchise granted by this Ordinance are binding upon the successors and assigns of the parties hereto (i) Advice of Displacement To the extent the City has actual knowledge thereof, the City will attempt promptly to inform Metricom of the displacement or removal of any pole on which any Radio is located 0) Consent Criteria In any case where the approval or consent of one party hereto is required, requested or otherwise to be given under this Ordinance, such party shall not unreasonably delay, condition, or withhold its approval or consent (k) Waiver of Breach The waiver by either party of any breach or violation of any Provision of this Ordinance 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 Ordinance (1) Renresentations and Warranties Each of the parties represents and warrants that it has the full right, power, legal capacity, and authority to enter into and perform the parties' Laze pnnlW OumLn 2% 1999932 M Page 19 of 23 p \9hered\dept\LGL\0er DowmenU\0rd,... 99Qdm... d.c 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 (m) Entire Agreement This Ordinance 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 franchise which are not fully expressed herein (n) Acceptance Before this Ordinance shall take effect, Metncom shall file with the City its acceptance of the terms hereof, signed by a duly authorized representative, whereby Metricom agrees to bind itself legally to the terms and conditions of this Ordinance / PASSED AND APPROVED this the ATTEST JENNIFER WALTERS, CITY SECRETARY PROVE AS TO LEGAL FORM ERBERT L PROUTY, CITY ATTORNEY L/ ✓� _ _f r W1 pnntM Omobr 20 69"952A Page 20 of 23 r \sherai\dept\LGL\Our Documenu\erdlnencc9\99U1eVmom doc The above and foregoing ordinance ��, adopted onrf}ist readm and passed to se and reading by the following votes, this the day of // 19 at a regular session of the City Council - Li Mayor, voting 11G/ Council Member, voting d c Council Member, voting Council Member, voting Council Member, voting Council Member, voting Council Member, voting The above and foregrg ordinance read, ado ted on second reading and passed by the following votes, this the A0 — day of 19�, at a regular session of the City Council zd rs STATE OF TEXAS COUNTY OF DENTON Mayor, voting Q# Council Member, voting Council Member, voting Council Member, voting Council Member, voting Council Member, voting Council Member, voting AY City Secretary of the City of Denton, Texas, do hereby certify that the abolve and foregoing is a true and correct copy of the right-of-way rental agreement between the City of Denton, Texas, and Metncom, Inc, as indicated herein The same is now recorded in Volume Page of the Ordinance Records of the City of Denton, Texas '/l WITNESS MY - AND this the 6k day ofer AD 19� (Seal) t Secrets y W1 prin,WIX bo X 1999951" Page 21 of 23 \\CH LGL\VOL1\SHARED\DEPMGL\Our DO9Y1,1011®\Ordl...\99\Mevic9m WHEREAS, the City Council of the City of Denton, Texas, did on the day of 19 , enact an Ordinance entitled AN ORDINANCE GRANTING A FRANCHISE TO METRICOM, INC, FOR THE USE AND OCCUPANCY OF THE PUBLIC RIGHTS -OF -WAY OF THE CITY OF DENTON FOR TELECOMMUNICATIONS PURPOSES, PROVIDING FOR CONDITIONS OF SUCH USE, PROVIDING FOR COMPENSATION FOR SUCH USE AND OCCUPANCY, AND ORDAINING OTHER PROVISIONS RELATED TO THE SUBJECT MATTER HEREOF Rl WHEREAS, said Ordinance was on the day of 19_, duly approved by the Mayor of said City and the seal of said City was thereto affixed and attested by the City Secretary, NOW, THEREFORE, Metncom, Inc hereby in all respects accepts, approves, and agrees to said Ordinance, and same shall constitute and be binding contractual obligation of Metncom, Inc and of the City without waiver of any other remedy by Metncom, Inc or the City and files this its written acceptance with the City Secretary of the City of Denton, Texas, in his/her office Dated this day of ATTEST Assistant Secretary AD 19 METRICOM, INC IM Acceptance filed in the office of the City Secretary of Denton, Texas, this day of AD 19 City Secretary Wt pnnWO W21199910<3A Page 22 of 22 T Metricomn October 4, 1999 Mr Michael Bucek City Attorney's Office City of Denton 215 East McKinney Denton, TX 76201 Mr Bucek OCT 0 7 1999 CILEGAL DEPTCM I]041 Ables Litu Dallas IX 7b229 Metricom, Inc hereby accepts the language in the Ordinance granting a franchise to Metricom for the use of the City's Rights -of -way Metricom also agrees to pay publication costs for this franchise in the Denton Record Chronicle Respectfully, /Jas,ernankeGovernment Relations and Property Manager I61( 1)1)011( FAX 9i t6'0 1180 9h 11, t,,(V 1104J Ables Lone Dallas TX 79229 RICOCHET NETWORK DESCRIPTION RicochetTM is an innovative wireless network that enables high speed, low cost, wide area access to the Internet, on-line services, LAN applications, and peer devices Ricochet networks employ frequency hopping, spread spectrum, packet radio repeaters, known as poletops, which are installed geographically in a mesh topology Through a unique combination of Ricochet's wireless cloud and its wired backbone, digital information travels through the network at high speeds within a city and between cities Ricochet poletop radios are shoe box -sized, require low power levels, and are attached easily to existing infrastructure, such as street lights, utility poles, and roof tops Typical deployment consists of installing poletop radios in a cluster from one-half mile to two miles apart in a mesh topology, making Ricochet extremely flexible and expandable Each poletop radio constantly knows the identity of, location of, and its ability to communicate with other poletop radios within its range Information packets can enter and exit the network at any poletop radio location, once in the network, packets can "hop" around busy or non-functioning radios Expanding coverage, increasing capacity, or achieving communications in dead spots is simply a matter of installing one or more additional poletop radios Metncom's mesh network architecture transmits digital data packets at a frequency of 902-928 MHz and inherently provides for rugged and secure communications Known as frequency hopping spread spectrum technology, this random technique makes it extremely difficult to monitor the signals to or from any particular radio Each radio — including the user/modem connection — "spreads" its transmissions over 162 channels (each of which is 160 kHz wide within the 26 MHz band) which are randomly selected using unique sequences Since the channels do not overlap, sequential data transfers never occur on the same channel Although Ricochet does not require a license from the FCC to transmit and receive radio signals, the FCC certifies that each Ricochet device complies with strict FCC Part 15 regulations For example, such regulations stipulate that the maximum transmit power for a Part 15 device is only 1000 milliwatts (I e , one watt) Further, radio transmissions cannot occupy a particular channel for more than 400 milliseconds, the Ricochet service completes a typical transmission — from user/modem to poletop radio or from poletop radio to poletop radio — is typically less than 100 milliseconds, depending on packet size Finally, the Ricochet wireless network offers inherent security by breaking up information and spreading data across the network in a number of small packets that are typically 500 bytes in size, each transmitted in a pseudorandom fashion on a different channel These multi -fragmented messages are particularly difficult to intercept in cases where the entire message must be captured to be of any practical use The packets take full advantage of the mesh topology architecture and the large numbers of routing paths available at any one time, providing additional obstacles to interception by potential eavesdroppers and unauthorized users Rh phone FAX 972 b20 4180 972 247 8169