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HomeMy WebLinkAbout2000-272ORDINANCE NO AN ORDINANCE OF THE CITY OF DENTON, TEXAS, AUTHORIZING THE CITY MANAGER TO EXECUTE A POLE ATTACHMENT AGREEMENT BETWEEN THE CITY OF DENTON, TEXAS AND METRICOM, INC, AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR AND THE COLLECTION OF RENTS THEREFROM, AND PROVIDING AN EFFECTIVE DATE WHEREAS, the City of Denton and Denton Municipal Electric ("DME") own and operate certain electrical facilities, including electric light standards and power distribution poles, and WHEREAS, Metricom, Inc ("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 ("FCC"), utilizing radios and related egwpment certified by the FCC, and WHEREAS, Metricom has been granted a franchise by the City of Denton for the use and occupancy of the public rights -of -way of the City for wireless communications purposes, pursuant to Ordinance No 99-436, enacted by the City Council on November 16, 1999, and duly -accepted by Metricom, and WHEREAS, Metricom, in the course of its business, and as contemplated by the above franchise ordinance, desires to attach, install, operate, and maintain a digital wireless communications radio network on facilities owned and operated by DME, and WHEREAS, the City Council deems it in the public interest to enter into a Pole Attachment Agreement with Metricom, NOW THEREFORE THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS SECTION 1 That the recitations set forth and contained in the foregoing preamble are expressly incorporated by reference into this Ordinance SECTION 2 That the City Manager is hereby authorized to execute, on behalf of the City, a Pole Attachment Agreement between the City of Denton, Texas and Metncom, Inc, providing for the attachment to the City's power distribution poles and electric light standards of Metricom's wireless digital data communications radio known as "Ricochet," substantially in accordance with the Pole Attachment Agreement which is attached hereto and incorporated by reference herewith SECTION 3 That the expenditure of funds and the collection of rents as set forth in the Pole Attachment Agreement is hereby authorized SECTION 4 That this ordinance shall become effective immediately upon its passage and approval PASSED AND APPROVED this the—&Lday of �y 2000 & AIZL EULINE BROCK, MAYOR ATTEST JENNIFER WALTERS, CITY SECRETARY By APPROVED AS TO LEGAL FORM HERBERT L PROUTY, CITY ATTORNEY By Cal 0 S \Our Documents\0rdinances\00Tole Attachment Agrmt Memcom 8 00 Ord doe THE STATE OF TEXAS COUNTY OF DENTON POLE ATTACHMENT AGREEMENT HIS AGREEMENT ("Agreement"), is made and entered into this the JS�day of -, 2000, by and between the CITY OF DENTON, TEXAS, a Home -Rule City, and Municipal Corporation lying in Denton County, Texas doing business as Denton Municipal Electric ("DME"), and METRICOM, INC, a Delaware Corporation, duly organized to do business in the State of Texas ("METRICOM"), for the purposes and consideration hereinafter stated WHEREAS, DME owns and operates certain electrical facilities, including electric light standards and power distribution poles, 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 ("FCC") utilizing Radios and related equipment certified by the FCC, and WHEREAS, METRICOM has been granted a franchise by the City of Denton, Texas, for the use and occupancy of the public rights -of -way of the City for wireless communications purposes, pursuant to Ordinance No 99-436 enacted by the Denton City Council on November 16, 1999, and accepted by METRICOM, and WHEREAS, METRICOM wishes to attach, install, operate, and maintain a digital wireless communications radio network on facilities owned by DME, NOW, THEREFORE, the parties hereby agree as follows Definitions. 1 1 "Agreement" means this Pole Attachment Agreement 12 "City" means the City of Denton, Texas 1 2 1 "DME" means Denton Municipal Electric 13 "Effective Date" means the date this Agreement is approved by the Denton City Council 1.4 "Facility" or "Facilities" means all street light poles, lighting fixtures, mast arms, and power distribution poles owned and operated by DME, located in the limits of City This term shall not include any property owned by another Person other than DME 15 "FCC" means the Federal Communications Commission, or its successor agency 16 "METRICOM" means Metncom, Inc, a corporation duly organized and existing under the laws of the State of Delaware, and its lawful successors, assigns, and transferees 17 "Person" means an individual, a corporation, a limited liability company, a general or limited partnership, a sole proprietorship, a joint venture, a business trust, and any other form of business association 18 "Radio" means that radio equipment to be installed and operated by METRICOM hereunder 19 "Ricochet" means the digital wireless communications microcellular radio network owned and operated by METRICOM 1 10 "Services" means the wireless digital communications services provided through Ricochet by METRICOM Scope of Agreement 21 Subject to the provisions of this Agreement, METRICOM shall have the right to use certain Facilities owned by DME and located within City's corporate limits and within DME's electric utility service area for the purpose of attaching its Radios However, nothing in this Agreement shall be construed to obligate DME to grant METRICOM permission to use any particular Facility If such permission is refused, METRICOM may make any other arrangements it may wish to provide for its equipment at the location in question, subject only to obtaining permission of DME with respect to location and compliance with such specifications relating thereto as DME may prescribe If permission to use any particular Facility is refused, such refusal shall be reasonable and DME shall use commercially reasonable efforts to make another Facility available for METRICOM's use 22 This Agreement does not grant a franchise to METRICOM for use of streets, alleys, public thoroughfares, or public property, nor does this Agreement grant to METRICOM any easement rights over public or private property or permission to make attachments or installation of equipment to poles of others If METRICOM shall at any time be prevented from placing or maintaining its Radios on DME's Facilities, no liability or responsibility on account thereof shall attach to DME 23 All Facilities jointly used hereunder shall remain the property of DME, and no use of such Facilities, or payment made by METRICOM hereunder shall create in METRICOM any ownership in any of said Facilities Legal/Pole Rental Agreement doe 3 Term 3 1 This Agreement shall be an interim Agreement and will terminate one (1) year from its effective date or sixty (60) days after the City adopts the Texas Public Power Association ("TPPA") Standard Pole Rental Agreement, whichever event is later, unless it is earlier terminated by either party in accordance with the provisions hereof, and shall commence on the Effective Date 4 Conditions of Use. 41 METRICOM's use of DME's facilities shall at all times conform to the requirements of the National Electrical Code, to the latest edition National Electrical Safety Code, to DME regulations and standards, and to all applicable ordinances, codes, resolutions, policies and rules and regulations of the City, as applicable, as determined by DME METRICOM shall perform all work in a good and workmanlike manner, and shall ensure that Radios installed by METRICOM are safe and free of material defect in workmanship, material, and design METRICOM shall maintain, at its sole cost and expense, by using DME-approved personnel, all Radios in good and safe condition and repair 42 In the event the installation of METRICOM's Radios would interfere with attachments already in place belonging to other parties, the location and method of attachments of METRICOM's Radios shall be decided by DME METRICOM shall not interfere in any manner with the existence and operation of any and all public and private rights -of -way, sanitary sewers, water mains, storm drains, gas mains, poles, aerial and underground electric and telephone wires, cable television, and other telecommunications, utility, and municipal property without the express written approval of the owner or owners of the affected property or properties 43 METRICOM's attachments of Radios shall be made and maintained by DME- approved personnel at METRICOM's expense in a place and manner satisfactory to DME Upon receipt of notice from DME that said attachments interfere with DME's property or any relocation, removal or rearrangement thereof, or endanger the public or its employees, METRICOM shall, at its own expense, by using DME-approved personnel, alter, rearrange, reroute, improve or repair said attachments in such manner and in such reasonable time frame as DME may direct 44 Prior to attaching any Radios METRICOM shall deliver to the DME's other renters on the subject Facility written notice of its scheduled approved attachments at least ten (10) working days prior to commencing attachments Upon request, DME will provide METRICOM with the names of other renters 45 METRICOM shall comply with all applicable City, State and Federal laws, rules and regulations and shall obtain and comply with all applicable permits, franchise agreements, right-of-way agreements, and other conditions or restrictions applicable to the Facilities, in the exercise and performance of its rights and obligations under this Agreement Legal/Pole Rental Agreement doc 3 46 Installation and maintenance of METRICOM's Radios shall be at METRICOM's sole expense and performed only by DME-approved personnel 47 Before METRICOM may use any DME Facility it shall file a pole attachment application with the DME on a copy of the current form therefor (Exhibit "A" attached) and receive, in response thereto, a DME permit If, in the judgment of the DME, issuance of the permit as requested is undesirable, the DME may disapprove the application, but any such disapproval shall not be unreasonable In any event, within fifteen (15) days after application filing, DME will give METRICOM written notice of its approval or disapproval In the event METRICOM does not receive a written response to a permit application within fifteen (15) days, such permit shall be deemed approved An approval may contain conditions that shall be within DME's sole reasonable discretion 4 7 1 Along with the application, METRICOM shall provide to DME a signed and sealed statement from an Independent engineering firm that the proposed Facilities will support the Radios proposed to be attached thereto 4 7 2 In the event METRICOM's plans relative to a proposed Facility contact would necessitate changes in or additions to DME's Facilities, DME, as a condition of approval, shall, within sixty (60) days after receiving from METRICOM all the data DME may request for this purpose, submit to METRICOM a cost estimate for such changes and additions and an estimated completion date The estimate shall be for direct and incurred out-of-pocket DME costs and overhead METRICOM shall not receive allowances or credits for system betterment METRICOM's obligation is not limited by the estimate, but METRICOM's obligation shall be to pay actual costs and overhead to DME 4 7 3 In the event more than one pole renter or franchisee files an application for a permit on the same Facility, all those filing such applications within thirty (30) calendar days of each other shall be required to bear DME's costs, changes and additions equally 4 7 4 Upon receipt from each applicant of their portion of the cost estimate, DME will promptly proceed with the necessary work and shall diligently prosecute it In no event, however, shall DME be liable to METRICOM or any other person for failure to complete the work at any date or as planned and estimated originally 4 7 5 All bills hereunder shall be due at Denton, Texas Any amount owing to DME by METRICOM under this section for which a specific payment date has not been prescribed shall be billed to METRICOM upon completion and shall thereafter be due and payable within thirty (30) days after the bill thereof is rendered Upon completion of the work, DME will render a bill for all its actual costs and overhead thereon, to METRICOM Each past due bill and any unpaid balance thereon shall bear interest at the rate of ten (10%) percent per annum, or at the maximum legal rate of interest, whichever rate shall be lesser 48 METRICOM may not use a DME Facility or any attachments thereon for a purpose other than for furnislung Services, as defined herein, according to the franchise granted by the City Legal/Pole Rental Agreement doe 4 49 Nothing herein contained shall be construed as affecting the rights, privileges, or duties previously conferred and imposed by DME by contract or otherwise, to and upon others not parties hereto DME reserves the right to continue and extend such rights, privileges, or duties, and to hereafter admit other and different pole renters, irrespective of the character or degree of economic competition thereby created DME shall notify METRICOM of permit applications for use of Facilities on which Radios are attached and shall use its best efforts to ensure any attachments to Facilities on which Radios are attached shall not cause interference with METRICOM's Radios and/or use of such Facilities 410 DME may use, change, operate, and maintain its Facilities as it sees fit and shall not be liable to METRICOM for any damage to or interference with the maintenance of METRICOM's Radios resulting from operation and maintenance of its Facilities 5 Compensation 5 1 METRICOM shall pay rental to DME for its attachments to DME Facilities hereunder at the rate of $84 00 per Radio attachment per calendar year of attachment ("Annual Fee") Rental charges shall accrue from and after the date that METRICOM attaches its radio equipment to a Facility 5 1 1 The rental fee shall be increased effective October 1 of each year during the term hereof, beginning on October 1, 2001, based on the percentage change in the U S Department of Labor, Bureau of Labor Statistics, Consumer Price Index of all items, for the Dallas Metropolitan Statistical Area that occurred during the previous calendar year The new rental shall apply commencing with the annual invoice next rendered and continuing until again adjusted 5 12 Rental shall be payable in advance on October 1 of each year based upon the highest number of Radios attached to Facilities during any of the preceding twelve (12) months 5 13 DME represents and covenants that DME owns all Facilities for the use of which it is collecting from METRICOM the Annual Fee pursuant to this § 5 et se 52 METRICOM shall pay all taxes and assessments lawfully levied on its property Such taxes, when levied by the City, together with the rentals provided hereunder, shall be exclusive of and in addition to the payments of the franchise fee under METRICOM's franchise with the City 5 3 The number of Radios installed on DME Facilities shall be field -checked every three (3) years, and in the event the field check reflects total installed Radios in excess of that shown by the cumulative total under "new balance" on the appropriate form, then it shall be presumed that such excess existed during the entire preceding three years and DME shall bill and METRICOM shall pay an additional amount equal to the applicable annual rate for all such Legal/Pole Rental Agreement doc 5 excess Radio installations, multiplied by 2 5 If such field check reflects fewer installations than shown by such cumulative total shown on the applicable form, then billing for installed Radios existing on the anniversary of the date on which the first Radio was installed in the year in which such field check is made shall be on the basis of the actual count as determined by the field check, and the cumulative total on the applicable form shall be corrected accordingly 54 In the event METRICOM installs a Radio without the written approval of DME, METRICOM agrees to pay DME, upon demand, a charge of $84 00, in addition to any rent lawfully owing DME thereon by METRICOM, for each such Radio installed or removed without the written approval of DME 6 Removal and Relocation of Radios. 61 METRICOM may at any time request in writing the removal of its Radios by DME-approved personnel from any DME Facility Removal of METRICOM's Radio(s) from any DME Facility shall constitute a termination of METRICOM's right to use such Facility until such time as a new application is submitted to DME if METRICOM subsequently desires to once again use said Facility 62 METRICOM shall not change the location of any of its attachments or alter its use of City Facilities without prior written City consent, which shall not be unreasonably conditioned, delayed, or withheld, unless otherwise provided in the Right of Way Use Agreement between METRICOM and the City of Denton, of even date herewith 63 Upon written notice by DME, METRICOM, at its sole expense, shall change, alter, improve, move, or remove any of its Radios by utilizing DME-approved personnel, as DME may direct to avoid interference, as determined by DME, with DME's use of or changes in its Facilities Other than in case of public emergency, in the event METRICOM fails or refuses to commence such work utilizing DME-approved personnel within a reasonable time [not more than ten (10) business days after DME's written notice] and complete the work within a reasonable time, DME acting for METRICOM, may perform or complete such work and METRICOM shall pay DME therefor its out-of-pocket costs and overhead However, in case of a public emergency affecting the public safety, as determined by DME, written notice shall not be required and DME may, at METRICOM's expense, relocate, remove or alter METRICOM's attachments, transfer such attachments to substituted poles or perform any other work in connection with the equipment that may be required by DME, without any liability to METRICOM, beyond the cost of any damages to Radio, or to any other person METRICOM will reimburse DME for the actual costs incurred to relocate, remove, or alter METRICOM'S attachments under such exigent circumstances As used herein, "emergency" shall mean those situations in which correction or action is necessary to prevent or correct an immediate threat to the health or safety of the public 64 In the event that any Radio subject to this Agreement is abandoned and no longer placed in service for a period of six (6) months or more, METRICOM shall promptly notify DME, and DME, at its option, may require METRICOM to promptly remove the abandoned Radio(s) at METRICOM's sole cost and expense DME shall not issue notice to METRICOM Legal/Pole Rental Agreement doe 6 that DME intends to exercise the option to require removal of Radios unless and until DME first gives fifteen (15) calendar days' prior notice to METRICOM to remove the Radios If METRICOM shall fail to remove the Radios as required by DME, DME shall be entitled to remove the Radios at METRICOM's sole cost and expense 65 Upon termination of this Agreement, pole rentals shall cease and DME shall remove the radios at METRICOM's sole expense without any liability therefor Provided, however, that if METRICOM is in arrears with its payments, or has not complied with all the provisions of this Agreement, said equipment may be retained by DME to secure such payment and performance 7 Operation of Radios 71 In the event the installation or operation of METRICOM's Radios illegally interferes with radio, telephone, telegraph or broadcast reception or other regularly used communication or signaling arrangement, METRICOM shall immediately proceed to eliminate at its expense, the cause of such interference by altering, rearranging, or changing the installation or operation of its Radios or any other method necessary to eliminate said cause If it is determined that such interference has been caused by improper installation of METRICOM's Radios, by DME-approved personnel at Metricom's direction, and the determination was made by City at its expense, METRICOM, when requested by City, shall reimburse City for any expense in connection therewith without delay 72 With respect to Radios for which METRICOM requests electric service, City shall supply such service if the proper voltage is available at the requested location If proper voltage is not available, the provisions of paragraph 4 7 2 shall apply DME and METRICOM hereby agree that for the term of this Agreement that a power and energy cost of service factor amount of $24 00 per calendar year per pole attachment shall apply for each METRICOM radio attached to the DME Facilities during the term of this Agreement, which is included within the rental amount provided for in paragraph 5 1 heremabove The $84 00 per calendar year Annual Fee per pole attachment set forth in paragraph 5 1 consists of the $60 00 per pole attachment calendar year base rental amount, together with the $24 00 per pole attachment calendar year power and energy cost of service factor 8. Insurance and Indemnification 8 1 Insurance coverage maintained by METRICOM pursuant to its franchise with DME shall extend to all activities covered by this Agreement 82 METRICOM shall furnish and maintain bond in the amount of Thirty Dollars ($30 00) per Radio to guarantee the payment of any sum that may become due to DME for rentals and for work performed for the benefit of METRICOM under this Agreement, including the removal of Radios upon termination of this Agreement by any of its provisions The amount of such bond is subject to increase at any time, and from time to time to such amount as DME may reasonably determine to be necessary in consideration of the expansion of METRICOM's Legal/Pole Rental Agreement doc 7 system and as other relevant conditions may warrant The bond shall be in a form substantially similar to Exhibit B attached hereto 83 METRICOM shall provide to DME proof of Workers Compensation Insurance, General Commercial Liability Insurance coverage with policy limits in the amount of no less than One Million Dollars ($1,000,000) each, with DME named as an additional insured, to the extent permitted by law 84 METRICOM shall indemnify and save City, its officers, officials, employees, and agents harmless from all claims, demands, loss, damages, cost, expense, liabilities, judgments, fines, charges, penalties, administrative and judicial proceedings and orders, and all costs and expenses incurred in connection therewith, including, without limitation, reasonable attorney's fees and costs of defense, resulting from, or ansmg directly or indirectly, in whole or in part, out of any accident or occurrence causing injury or death to any person, or injury, destruction or loss of any property, due directly or indirectly to the negligent or wrongful use or occupancy of said Facilities (including all structures and other improvements thereon) by METRICOM or any other person holding for, through, or under METRICOM, except in no event will METRICOM indemnify for the negligence or willful misconduct of the City or DME, it officers, officials, employees and agents In the event that any action or proceedings shall be brought against City by reason of any claim covered by this paragraph, METRICOM, upon written notice from City, will, at METRICOM's sole cost and expense, resist and defend same 85 METRICOM waives any and all claims, demands, causes of action, and rights it may assert against DME on account of any loss, damage, or injury to any Radio or any loss or degradation of the Services caused by an event or occurrence that is caused by force majeure, or is beyond the reasonable control of DME Transfer or Assignment. 91 This Agreement shall not be assigned by METRICOM without the express written consent of DME, which consent shall not be unreasonably withheld or delayed Any attempted assignment in violation of this provision shall be void The transfer of the rights and obligations of METRICOM to a parent, subsidiary, or other affiliate of METRICOM, or to any successor in interest or entity acquiring fifty-one percent (51%) or more of METRICOM's stock or assets shall not be deemed an assignment METRICOM shall give DME thirty (30) calendar days' prior notice of any such transfer This Agreement is binding upon the successors and assigns of the parties hereto 10. Notice 101 Whenever in this Agreement notice is required to be given by either party hereto to the other, each notice unless otherwise expressly provided, shall be in writing and marled first class, or otherwise delivered, as to the City to City Manager City of Denton, Texas Legal/Pole Rental Agreement doc 215 East McKinney Street Denton, Texas 76201 And as to METRICOM to Metricom, Inc 980 University Avenue Los Gatos, California 95032 Ann Property Manager 102 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 couner Either party may from time to time designate any other address for this purpose by written notice to the other party in the manner set forth above 11 Termination. 11 1 This Agreement may be terminated by either party upon thirty (30) calendar days' prior 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 thirty (30) calendar days of receipt of written notice of default If such default is not curable within thirty (30) calendar days, this Agreement may be terminated if the defaulting party fails to commence such cure within thirty (30) calendar days or fails thereafter to diligently prosecute such cure to completion However, the grace period for any monetary default is ten (10) calendar days from receipt of notice I 1 2 If this Agreement is terminated because METRICOM has defaulted in any of its material obligations under this Agreement, METRICOM shall utilize DME-approved personnel to remove its equipment and materials from Facilities within thirty (30) calendar days from the cure period In the event METRICOM fails or refuses to utilize DME-approved personnel to remove its equipment and materials or to the extent it has otherwise failed to complete such removal within the thirty (30) day period, it will be deemed to have abandoned its materials and equipment to DME and the property shall immediately become the property of DME 113 If METRICOM should default in the removal of its equipment and materials within the time frame allowed for such removal or should default in the performance of any other work which it is obligated to do under this Agreement, and if DME elects not to take title to equipment and materials of METRICOM, DME may elect to do such work at METRICOM's sole risk and expense, and METRICOM, on demand, will reimburse DME for the entire expense thereby incurred, including out-of-pocket costs and overhead 114 The failure of DME to enforce any provision of this Agreement in any instance shall not be construed as a waiver or relinquishment on its part of any such provision but the same shall nevertheless be and remain in full force and effect 12 Miscellaneous. Legal/Pole Rental Agreement doc 9 121 If any section, subsection, or other portion or provision of this Agreement is for any reason held to be invalid by the decision of any court or federal or state authority of competent jurisdiction, such section, subsection, or other portion or provision shall be considered a separate, distinct and independent part of this Agreement, and such decision shall not affect the validity and enforceability of all other portions of this Agreement 122 This Agreement shall be governed in all respects by the laws of the State of Texas, and any venue of any action brought under the provisions hereof shall be in Denton County, Texas 12 3 METRICOM understands that this Agreement does not provide METRICOM with exclusive use of any Facilities and that DME shall have the right to permit other providers of wireless and/or telecommunications services to install equipment or devices on the Facilities 124 This Agreement contains the entire understanding between the parties with respect to the subject matter herein There are no representations, agreements or understandings (whether oral or written) between or among the parties relating to the subject matter of this Agreement that are not fully expressed herein 125 This Agreement may not be amended except pursuant to a written instrument signed by both parties 12 6 METRICOM shall be available for direct communication by employees of DME twenty-four (24) hours a day, seven (7) days a week, regarding any problems or complaints resulting from the attachment, installation, operation, maintenance, or removal of the Radios DME may contact METRICOM at (800) 873-3468 regarding such problems or complaints 127 All exhibits referred to in this Agreement and any addenda, attachments, and schedules which may from time to time, be referred to in any duly executed amendment to this Agreement, are by such reference incorporated in this Agreement and shall be deemed a part of this Agreement 128 To the extent that City has actual knowledge thereof, DME will attempt to inform METRICOM of the displacement of any Facility upon which any Radio is located 129 Attachment shall be made only to street light arms and not to decorative lighting or transmission poles 1210 Only one attachment shall be made to any single street light arm Multiple transceivers shall not be permitted 1211 DME-approved personnel shall perform all work on DME facilities per a schedule of services and charges agreed to by separate instrument between METRICOM and DME This schedule is entitled "Schedule of Values" consisting of five (5) pages, and is attached hereto as Exhibit "C," and is incorporated by reference herewith Legal/Pole Rental Agreement doc 10 IN WITNESS WHEREOF, the parties hereto have executed duplicate original counterparts of this Agreement, on the day and year first above written ATTEST JENNIFER WALTERS, CITY SECRETARY By APPROVED AS TO LEGAL FORM HERBERT L PROUTY, CITY ATTORNEY By Uj W ATT m S \Our CITY OF DENTON, TEXAS A Texas Municipal Corporation METRICOM, INC A Delaware Corporation B —' 01c L Au ICE PRESIDENT CORPORATE OPS om msc doc Approved As To Form ROW Legal Department By z164 M4.4r Date Tvay 90, 9o00 Legal/Pole Rental Agreement doc 11 J44 MUNICITON PAL ELECTRIC Encrgizutg tomoiioH s community POLE ATTACHMENT APPLICATION PROCESS The following procedure is to be followed by all Licensees and/or Franchisees seeking to make new attachments on Denton Municipal Electric's ("DME") poles Note that no entity may make any attachments to DME's poles without having first entered into a binding Pole Attachment Agreement 1 A Licensee and/or Franchisee seeking to make new attachment(s) shall obtain an Application for Permit from DME (attached) 2 A Licensee and/or Franchisee shall have a professional engineer complete a Pre - Permit Survey which will review the design of the proposed attachment(s) to determine the feasibility of the request and identify any necessary make-ready work to accommodate the attachment(s) 3 A Licensee and/or Franchisee shall submit the completed Application for Permit including a copy of the Pre -Permit Survey design calculations and recommendations on make-ready work The engineering analysis must be signed and sealed by a professional engineer 4 DME will review the professional engineer's recommendations and discuss any issues with the Licensee and/or Franchisee 5 DME will complete the make-ready work according to the terms of the Pole Attachment Agreement 6 DME will sign and return the Application for Permit authorizing the Licensee and/or Franchisee to make its attachment(s) O6/26/00 MSC EXHIBIT "A" Page 12 JR4 M U N I C ITO N P A L ELECTRIC Energizing tomorrow s community today' APPLICATION FOR PERMIT Application Date /_/ To Denton Municipal Electric Attn Dan Scott / Rowdy Patterson 901-A Texas Street Denton, Texas 76201 Desire to Attach to Poles Desire to Vacate Poles Narrative description of proposed activity In accordance with the terms and conditions of the License or Franchise Agreement dated , application is hereby made for a permit to occupy/and or vacate the poles in the locations detailed on the attached Field Data Sheets and Map Designs and pursuant to the attached "Minimum Design Review Information " Licensee and/or Franchisee have attached a Pre -Permit Survey that has been certified by a professional engineer experienced with electric utility facilities The engineer's name is The engineer's registration number is Licensee/Franchisee Contact Person _ Title Telephone No Signature Permission is hereby granted to Licensee and/or Franchisee to attach and/or vacate poles listed on the attached Field Data Sheets, subject to its payment to DME of the necessary make-ready work charges as attached Date Utility Approved By Signature Title Date Telephone No S \Our Documents\Contracts\00\Pole Attachment Instructions & Application Metncom Ex doe 06/26/00 MSC Page 13 TEXAS STATUTORY PERFORMANCE BOND (Public Works) Bond No. KNOW ALL MEN BY THESE PRESENTS - THAT, Metncom, Inc (hereinafter called the Principal), as principal, and , a corporation organized and existing under the laws of the State of Texas, licensed to do business in the State of Texas and admitted to write bonds, as surety, (hereinafter called the Surety), and held and firmly bound unto the City of Denton, Texas (hereinafter called the Obligee), in the amount of (Dollars) ($ ) for the payment whereof, the said Principal and Surety bind themselves and their heirs, administrators, executors, successors, and assigns, jointly and severally, firmly by these presents WHEREAS, the Principal has entered into a franchise agreement with the Obligee, dated the day of for which agreement is hereby referred to and made a part hereof as fully and to the same extent as if copied at length herein The term of this bond is for one year beginning and ending This bond is subject to renewal annually by execution of a new bond NOW, THEREFORE, THE CONDITION OF THIS OBLIGATION IS SUCH, That if the said Principal shall faithfully perform the work in accordance with the plans, specifications and agreement documents, then, this obligation shall be null and void, otherwise to remain in full force and effect, PROVIDED HOWEVER, that this bond is executed pursuant to the provisions of Chapter 2253 of the Texas Government Code and all liabilities on this bond shall be determined in accordance with the provisions, conditions and limitations of said Chapter to the same extent as if it were copied at length herein IN WITNESS WHEREOF, the said Principal and Surety have signed and sealed this instrument this day of 12000 EXHIBIT `B" Page 14 Principal METRICOM, INC L-M Surety LIM S \Our Documents\Contracts\00\Performance Bond TX Statutory Memcom doc Page 15 Contract No Exhibit C Schedule of Values 7120100 EXHIBIT C. SCHEDULE OF VALUES A UNIT PRICE SCHEDULE B TIME & EQUIPMENT SCHEDULE C STREET LIGHT POLE FIELD VERIFICATION Page I of 1 Metncom Confidential & Proprietary Not for disclosure without written permission Contract No Exhibit C Schedule of Values 7120100 A UNIT PRICE SCHEDULE The Contractor shall prepare a firm fixed unit price proposal for the items listed below DESCRIPTION OF WORK EST UNIT TOTAL ITEM UNITS PRICE VALUE NEW INSTALLATIONS Al Attach poletop radio to streetlight arm bracket and $66 00 connect power adapter to photoelectric cell base Reconnect photoelectric cell cap Unit EA A2 Install mast arm on wooden utility pole Attach poletop $108 00 radio to mast arm Pull 24 10 AWG cable through mast arm and connect to electric secondary service on utility pole Unit EA A3 Install mast arm on wooden utility pole Attach poletop $100 00 radio to mast arm Pull 2410 AWG cable through mast arm and leave looped at base of mast arm and pole attachment Unit EA A4 Connect 2410 AWG cable for power tap for existing $35 00 poletop radio to electric secondary service on utility pole only Material for secondary power tap supplied by contractor Unit EA REMOVALS El Remove poletop radio and mounting hardware installed $66 00 in the manner of item Al Unit EA E2 Remove poletop radio and mounting hardware installed $108.00 in the manner of item A2 Unit EA E3 Remove power tap to secondary service on utility pole $34 00 installed in the same manner as item A4 Unit EA E4 Remove electric wire for power tap from base of N/A streetlight pole to poletop radio attachment on the top of the pole Unit EA OPTIONAL An all-inclusive item of work can be employed for ease of invoicing Installation and removal units from the worksheet above should be summed and the all-inclusive price averaged across all units DESCRIPTION OF WORK UNITS PRICE VALUE ITEM Zl All -Inclusive Installation & Removal N/A Page 2 of 2 Metricom Confidential & Proprietary Not for disclosure without written permission Contract No Exhibit C Schedule of Values 7120100 DESCRIPTION OF WORK EST UNITS UNIT I PRICE TOTAL VALUE ITEM MAINTENANCE REPLACEMENTS M1 Remove existing poletop radio, or whip antenna, or photoelectric cell power adapter, or all, and replace new in the same manner Unit EA $66 00 M2 Remove short mast arm or electric secondary service tap from wooden utility pole, and replace new in the same manner as item A2 Unit EA $128 00 M3 Remove electric wire for power tap from base of streetlight pole to poletop radio attachment on the top of the pole, and replace with photoelectric cell power adapter Unit EA N/A M4 Power -off poletop radio by removing photoelectric cell cap, wart 2 minutes, and replace Unit EA $35 00 RELOCATIONS R1 Relocate existing poletop radio from one site to another in the same manner as item Al Unit EA $160 00 R2 Relocate existing poletop radio from one site to another in the same manner as item A2 Unit EA $200 00 GSA SPECIALS S I Install poletop radio on traffic signal in manner of Metricom specification no Unit EA N/A OPTI()NAL An all-inclusive item of work can be employed for ease of invoicing Replacement and relocation units from the worksheet above should be summed and the all-inclusive price averaged across all units DESCRIPTION OF WORK UNITS PRICE VALUE ITEM Z2 All -Inclusive Maintenance and Relocations N/A 1 The above unit prices shall be inclusive of Contractor's overhead and profit requirement 2 All other Contractor costs including mobilization, taxes, transportation, traffic control, and travel between installation sites shall be included in the above unit prices 3 Work units performed under the aforementioned cntena shall be thoroughly documented by the Contractor Time and production sheets attesting to such work shall be submitted with the monthly requisition Page 3 of 3 Metncom Confidential & Proprietary Not for disclosure without written permission Contract No Exhibit C Schedule of Values 7120100 B TIME & EQUIPMENT SCHEDULE In generai, poletop radios shall be installed in accordance with agreed unit costs In certain circumstances, the unit prices may not be applicable The Contractor shall prepare a firm time and equipment cost proposal for the labor and equipment categories listed below Category Labor Rate per Hour Equipment Rate Standard Premium Overtime Benefits Dues 1 Project Manager 2 Superintendent Mon1bly 3 Foreman 4 Journeyman Lineman $35.00 $52 50 5 Lineman 6 Streetlight Technician 7 Lineman Apprentice 8 Traffic Control Technician 9 Flag Person 10 Police Detail 13 Hi -Ranger Bucket Truck $40 00 14 Rack -body Truck 15 Equipment Van 16 Mobile Telephone 17 Two-way Radio 18 JPager 1 T&E payment for Contractor work shall be the remedy for non-standard work not covered by the Item Price Schedule above 2 Metncom shall designate non-standard work and both parties shall agree upon the execution of this work in advance of being performed by the Contractor Page 4 of 4 Metncom Confidential & Proprietary Not for disclosure without written permission Contract No Exhibit C Schedule of Values 7120100 3 T&E rates shall be paid if extenuating circumstances anse that preclude adherence to the normal installation schedule These circumstances must not be caused by the contractor and must not anse because of subcontractor mismanagement, lack of coordination, failure to coordinate sufficient personnel in a timely manner, failure to coordinate materials in a timely manner, failure to conduct safe practices, or failure to obey local codes and laws Lack of progress by the contractor due to accidents shall not be sufficient cause to invoke T&E rates 4 The application of T&E rates for work performed under the aforementioned criteria shall be thoroughly documented by the contractor Time sheets attesting to such work shall be submitted with the monthly requisition 5 The above rates shall be inclusive of Contractor's overhead and profit requirement 6 All other Contractor cost including mobilization, taxes and, transportation shall be included in the above T&E rates 7 Equipment rates shall remain valid for one calendar year from execution of this agreement or for the duration of the contractor's work under this agreement 8 Labor rates shall remain valid for one calendar year from execution of this agreement or for the duration of the prevailing union contract labor rates 9 Over the life of this agreement labor and equipment rates shall escalate annually based on the published CPI C STREET LIGHT POLE FIELD VERIFICATION DESCRIPTION OF WORK UNITS PRICE VALUE ITEM MISC Street Light Pole Field Verification using MenJC0m supplied GPS unit and laptop with software loaded / PTD (Pole Top Design Tool) to locate usable poles in Denton N/A N/A N/A S \Our Documents\Contracts\00\Pole Attachment Agreement Exhibit C Schedule of Values Metncom doc Page 5 of 5 Metricom Confidential & Proprietary Not for disclosure without written permission