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1999-436ORDINANCE NO ~ ~/~ 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 TELECOMMLrNICATIONS 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, Metneom, Inc, a Delaware Corporation, has requested permission to use and occupy the Public R~ghts-of-Way of the C~ty of DENTON for the purposes of installing radio receivers and transmitters on aerial facilities ~n the Rights-of-Way, and WHEREAS, the C~ty of DENTON has the authority under its Charter and state law to grant fxanchmes to persons using and occupying the Public Raghts-of-Way for the conduct of private businesses, and WHEREAS, Metncom is an the business of constructing, mmntammg, and operating a wireless digital data commumcatlons radio network known as Ricochet®, a network operated in accordance with regulations promulgated by the Federal Commumcanons Commission, utthzmg Radios (as defined m Section 2 below) and related equipment certified by the Federal Communications Commission, and WHEREAS, Metrleom w~shes to locate, place, attach, install, operate, and maintain Radios on facilities owned by the C~ty, as well as facflat~es owned by third parties, located m the Municipal Rtght-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 Metncom entenng into a pole attachment agreement with the City for the attachment of Radio, Receivers and Transmatters (Radios) to Municipal Faeflmes, the City 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 Mumclpal FaclhUes for the purposes of operating Ricochet® and providing Services to Persons located w~thm or without the limits of the City (b) Subject to Metncom obtoanang the permissaon of the owner(s) of the affected non- Municipal Facilities property, the C~ty hereby authorizes and permits Metncom to enter upon the Municipal Pdght-of-Way and to attach, install, operate, malnttun, 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 Munlc~pal Paght-of-Way as may be permitted by the public utlhty company or property owner, as the case may be Upon request, Metncom shall furnish to the City documentation of such permission from the ~ndivldual utility or property owner responsible (c) In the performance and exercise of its rights and obhgatlons under this franchise Metrlcom shall not interfere in any manner with the existence and operation of any and all pubhc and private rights-of-way, samtary sewers, water moans, storm drains, gas moans, 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 apphcable 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 meanmg given herem When not inconsistent with the context, words used in the present tense include the future tense, words in the plural number include the Page 2 of 23 singular number and words m the singular number anclude the plural number The word "shall" as always mandatory and not merely directory Words not defined shall be gaven their common and ordanary meaning 0) Agency - any governmental or quasa-governmental agency other than the Caty, mcludmg the Federal Commumeataons Commasslon and the PUC (as such term is defined in 8ectmn 2(my) below) 01) City - the City of DENTON, Texas (m) Effective Date - the date, after adoption hereof by the Caty, that Metncom files ats acceptance wath the C~ty, m accordance with the Promslons hereof (iv) Fee - any assessment, hcense, charge, fee, lmposatlon, tax, or levy of general appheatmn to Persons dmng busaness in the C~ty lawfully ~mposed by any govemmantal body (but excluding any utthty users' tax, franchise fees, telecommumcatlons tax, or similar tax or fee) (v) Gross Revenues - the gross dollar amount accrued on Memcom's books for Services prowded to ~ts customers wath bflhng addresses m the C~ty, excluding revenue uncollectable from subscribers (t e, bad debts) wath bllhng addresses ~n the Caty that was prevaously included m Gross Revenues Gross Revenues shall Include franchise fees paid hereunder (w) Installation Date - the date that the first Radm is ~nstalled by Memcom pursuant to flus Ordinance (vn) Laws - any and all statutes, consUtut~ons, ordinances, resolutaons, regulaUons, jud~eml demsaons, rules, tariffs, adm~mstratave orders, certafieates, orders, or other reqmrements of the C~ty or other governmental agency having joint or several jurisdiction Page 3 of 23 over the parties to this Ordinance, in effect either as of the Effective Date or at any time dunng the presence of Radios an the Municipal Pdght-of-Way (vm) Metrieom - Metrieom, Inc, a corporation duly organized and existing under the laws of the State of Delaware, and its lawful successors, assigns, and transferees 0x) Municipal Access Program - the discount program described in Section 9 below (x) Mumeipal Facilities - City-owned street light poles and hghtlng fixtures located within the Municipal Right-of-Way Mumelpal Facilities may refer to such faclhtles in the singular or individually, as appropriate to the context m which used (xO Municipal Right-of-Way - the space in, upon, above (to the height of any Mumc~pal 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 Oty, except as provided by applicable Laws or pursuant to an agreement between the City and any such Person or Agency (xn) 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 (xm) Provmon - any agreement, clause, condition, covenant, qualification, restriction, reservation, term, or other stipulation in this Ordinance that defines or otherwise controls, establishes, or hm~ts the performance required or permitted by any party to this Orthnanee All Provisions, whether covenants or eondmons, shall be deemed to be both covenants and conditions m ~..,. o~o~ ~o ~ ~ ~ ^u Page 4 o f 23 (x~v) PUC - the Pubhc Utlhty Comm~sslon of Texas, or ~ts successor agency (xv) Radio - the radio eqmpment, whether referred to singly or collectively, to be installed and operated by Metncom hereunder (XVl) l*aeoehet® or Ricochet® MCDN - the R~eochet® M~eroCellular D~gltal Network, a w~reless, m~erocellular d~g~tal radio commumcat~ons network owned and operated by Metncom (xvl0 Servaees - the w~reless d~g~tal commumcataons services provided through Racochet® by Metncom and the installation and maintenance of same by Metncom (xvm) Ordinance - th~s Ordinance granting a franchise to Metncom SECTION 3. TERM. The franchise granted by this Ordinance shall be effeetave as of the Effective Date and shall extend for a term of eight (8) years commencing on the Installation Date, unless ~t ~s earlier terminated by either party in accordance with the prows~ons hereto The term of this franchise may be renewed by agreement of the parties Negotmt~ons for renewal should commence no later than six (6) months prior to the expiration date Either the C~ty or Metncom may choose to not renew the franchise ff terms satisfactory to e~ther the Oty 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 exerosed at Metncom's sole cost and expense, shall be subject to the prior and continuing right of the Cxty under apphcable Laws to use any and all parts of the Mumc~pal R~ght-of-Way exclusxvely or concurrently w~th any other Person or Persons and shall be further subject to all deeds, easements, dedications, condit~ons, covenants, restrictions, encumbrances, and claims of Utle of record which may affect the Mtmlclpal R~ght-of-Way Nothing in th~s Ordinance shall be Page 5 of 23 deemed to grant, convey, create, or vest in Metncom a real property interest m 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 obhgatlons under this Ordinance (b) If the attachment, installation, operatmn, maintenance, or location of the Radios in the Mumcxpal Right-of-Way shall require any permits, Metncom shall, if required under applicable City orchnances, 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 Metncom 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 mltlal installation of Radios shall be provided to the City prior to deployment of the Radios (e) Upon the completion of installation Metncom promptly shall furnish to the City documentation, suitable to the City, showing the exact location of the Radios m the Mumelpal Pught-of-Way (d) By allowing use of Munmlpal Famht~es hereunder, C~ty makes no representation to Metncom that the voltage of electrical power supplied to such Munmapal Facilities is appropriate for Metneom's use City is under no obhgatlon to change the voltage of electrical power supplied to Mummpal Faethties m order to accommodate the use of such Municipal Facilities by Metncom Page 6 of 23 SECTION 6 COMPENSATION; DISCOUNTS; UTILITY CHARGES (a) Metncom shall be solely' responsible for the payment of all lawful Fees m connection w~th Metncom's performance under flus Ordinance, mclu&ng those set forth below (b) As consideration for the use and occupancy of Mumc~pal R~ght-of-Way and m order to reimburse C~ty for any costs ~t may recur m connection w~th Metncom's entry upon and deployment w~thm the Mumc~pal R~ght-of-Way, Metncom shall pay to the City, on a quarterly basis, an amount equal to five percent (5%) of Metncom's quarterly Gross Revenues (the "Franchise Fee") Metncom may pass through to customers the Franchise Fee at its d~scret~on The compensation provided under this sect~un shall be payable for the period commencing upon the date that Metrlcom first provides Services to subscribers within the C~ty 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 W~thm fifteen (15) days after the termination of th~s franchise, compensation shall be pa~d for the period elapsing since the end of the last calendar quarter for which compensation has been paid, (c) Metncom shall furnish to the C~ty w~th each payment of compensation reqmrcd by th~s section a statement, executed by an authorized officer of Metncom or h~s or her designee, showing the amount of Gross Revenues for the period covered by the payment If Metncom or the C~ty discover that Metncom has fmled to pay the entire or correct amount of compensation due, Metncom shall pay the City the full amount of such underpayment w~thm thirty (30) days of d~scovery of the error or determination of the correct amount Any overpayment to the C~ty through error or otherwise shall be refunded or offset against the next payment due from Metncom Page 7 of 23 (d) Acceptance by the C~ty of any payment due under th~s section shall not be deemed to be a wmver by the C~ty of any breach of th~s Ordinance occurring prior thereto, nor shall the acceptance by the City of any such payments preclude the City from later estabhshlng that a larger mount was actually due or from collecting any balance due to the City (e) No taxes, fees, or other payments by Metncom to the City, ~nclu&ng without hm~tat~on 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 Serwces are subject to a utthty users tax, telecommumcahons tax, or other similar tax or fee for use of the Raght-of-Way by operation of the City's Mummpal Code or other applicable C~ty law, then the amount of the R~ght-of-Way Fee shall be reduced by the amount of the apphcable utthty users tax, telecommumcat~ons tax or such other similar tax or fee SECTION 7 RECORDS AND AUDITS. (a) Metncom shall keep accurate books of account at ~ts pnnmpal office ~n Los Gatos, CA or such other location of its choosing for the purpose of determining the amounts due to the C~ty under Section 6 above Upon fifteen (15) bus~ness days' prior notice, Metncom shall make ~ts books of account relative to the C~ty avmlable for the City's ~nspect~on at a location in the Dallas-Fort Worth Area (b) The City may audit Metncom's books and records from t~me to t~me at the C~ty's sole expense, but m 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 Metncom has underpmd the City by five percent (5%) or more, Metncom will promptly pay the full amount of the underpayment and shall promptly reimburse the C~ty for ~ts reasonable costs, lnclu&ng the costs of consultants, m performing the audit Page 8 of 23 (c) The City agrees to hold in confidence any non-public information it learns from Metncom 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 elecmclty and applicable tariffs (b) The terms and conditions under wfuch Metricom may use Municipal Facilities for which the City requires a pole attachment agreement shall be contmned in a separate agreement This franchise is for use of Mummpal Raghts-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 term of this franchise to purchase, when such service is commemmlly avmlable in the City, up to the maximum number set forth below (based upon the City's population) of Pdcochet® 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 mumcipahtles with a population of 100,000 to 249,000, up to a maximum of thirty (30) discount subscriptions, (c) for munlclpahtles with a population of 250,000 to 500,000, up to a maximum of forty (40) discount subscriptions, and (d) for mumclpahtles with a population of over 500,000, up to a maximum of fifty (50) discount subscriptions LastpnntoiOclober201~9952AM Page 9 of 23 (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 obtmned from either Metncom or an authorized retailer at market rates current from time to time or under other promotional programs which may be avtulable from time to time in addition to the Municipal Access Program rate (d) City shall use all subscnptlons provided pursuant to this section solely for its own use and shall not be entitled to resell, distribute, or otherwise permit the commemlal use of the same by any other party SECTION 10. RELOCATION OF RADIOS. (a) Relocation at City's Reouest City may require Metrlcom to relocate one or more of its Radios from time to time, and Metncom shall at City's direction relocate such Rathos at Metncom's sole cost and expense, whenever C~ty reasonably determines that the relocation ~s needed for any of the following purposes (1) if reqmred for the construction, completion, repmr, relocation, or mamtanance of a City project, (10 because the Radio is lnterfenng w~th or adversely affecting proper operation of City-owned light poles, electric poles, traffic signals, or other Mtmlc~pal Facilities, or (in) to protect or preserve the public health or safety In any such case, City shall use ~ts best efforts to afford Metncom a reasonably eqmvalent alternate location If Metncom shall fall to relocate any Radios as requested by the City within a reasonable time under the c~rcumstances in accordance with the foregoing provision, City shall be entitled to relocate the Rachos at Metneom's sole cost and expense, without further notice to Metncom and without liability to Metncom for any damages occasioned thereby If relocation is reqmred immediately in order to protect public health and safety, City shall not be reqmred to provide an Page 10 of 23 alternate location at the t~me of removal, but shall use ~ts best efforts to do so as soon as reasonably possible (b) RelocgUons at Metncom's Reouest In the event Metncom desires to relocate any Radios from one Mumclpal Facility to another, Metncom shall so adwse C~ty City will use ~ts best efforts to accommodate Metncom by making another reasonably eqmvalent Mumctpal Facility available for use ~n accordance with and subject to the terms and conditions of this franchise and the pole attachment agreement (c) Damage to Mumcmal Raght-of-Wav Whenever the removal or relocation of Radios ~s reqmred or permitted under this Ordinance, and such removal or relocation shall cause the Mumc~pal Pdght-of-Way to be damaged, Metncom, at its sole cost and expense, shall promptly repatr and return the Municipal Pdght-of-Way ~n which the Radios are located to a safe and satisfactory condition in accordance with applicable Laws, normal wear and tear excepted If Metncom does not repmr the s~te as just descnbed, then the C~ty shall have the option, upon five (5) days' pnor written not,ce 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 mcurred or the actual costs recurred by the C~ty at C~ty's standard rates Upon the receipt of a demand for payment by the C~ty, Metncom shall promptly reimburse the City for such costs (d) Metncom shall remove and replace or repmr any non-functioning or malfunctiomng Ratho within seventy-two (72) hours of rece~vmg notme of the malfunctlomng or non-funct~omng Radio However, ff the non-functlomng or malfunctioning Radio ~s essentml to the City's emergency communications network, then upon receipt of written or verbal not~ce from the City that functioning of the C~ty's emergency communlcatmns network has been Page 11 of 23 lmpmred, Metncom shall replace or repar 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 Mumclpal Facilities on which Radios are installed, and any other areas affected by Metrlcom's activities, to a clean and safe condition The restoration of Municipal lhghts-of-Way and Mumclpal Facilities shall be subject to inspections by the City, at the discretion of the City, and Metncom shall undertake additional restoration efforts as reasonably reqmred by the City Repars and restorations to Municipal Facilities included m 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 Ordmance SECTION 11. INDEMNIFICATION AND WAIVER (a) Metncom agrees to mdemnlfy, defend, protect, and hold harmless the City, 1ts council members, officers, and employees from and against any and all clams, demands, losses, damages, habfllties, fines, charges, penalties, admlmstrative 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 Page 12 of 23 (b) Walyer of Claims Metncom waives any and all clmms, demands, causes of action, and rights at may assert agmnst the C~ty 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) L~rmtation of City's LlablhtV The C~ty shall be liable only for the cost of repmr to damaged Radios arising from the negllgance or willful misconduct of City, its counmlmembers, its officers, employees, agents, or contractors The City shall not be liable to Metneom or any other person for any interruption in Metncom's service or for any interference with the operation of Metrlcom's Radios arising from the City's use of its factht~es and Raghts- 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 hable to Metncom or any tlurd party for any consequential, exemplary, or incidental damages, including but not limited to any lost profits, data, savings, or revenues, arising out of or an 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 Cay or its officers or employees have been advised of the possibility of such damages The franchise granted by this Ordinance as for the benefit of Metncom, any transferee or assignee m accordance with the provisions of Section 15, and the City, and not for the benefit of any other party It as not intended by any provision of any part of tlus Ordinance to create the public or any member thereof or any other person or business, whether for profit or not for profit, as a tlurd party beneficiary hereunder, or to anthonze any person not a party to this Ordinance to mmntmn a stat for damages of any sort pursuant to the terms or promslons of this Ordinance Page 13 of 22 SECTION 12. INSURANCE. (a) Metncom shall obtmn and mmntmn at all times during the term of this Ordinance commercial general liability insurance and commercial automobile liability insurance protecting Metncom m an amount not less than One Million Dollars ($1,000,000) per occurrence (combined smgle limit), lncluchng 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 pohmes shall name the City, its council members, officers, and employees as additional msureds as respects any covered habthty arising out of Metncom's performance of work under this Ordinance Coverage shall be in an occurrence form and in accordance with the limits and provisions specffied herein Claims-made policies are not acceptable When an umbrella or excess coverage is in effect, coverage shall be provided ~n 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 Cxty of such change or cancellation (b) Pnor 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 0) the policy number, name of insurance company, name and address of the agent or authonzed representative, name, address, and telephone number of insured, project name and address, policy expiration date, and specific coverage amounts, (n) that the City shall receive thirty (30) days' prior notice of cancellation, and 1999952 t,M Page 14 of 23 (m) that Metncom's insurance ~s primary as respects any other vahd or collect~ble insurance that the C~ty may possess, ~nclud~ng any self-insured retentions the C~ty may have, and any other ~nsurance the C~ty does possess shall be considered excess insurance only and shall not be reqmred to contnbute w~th this insurance (c) The certfficate(s) of ~nsurance w~th endorsements and noUces shall be marled to the C~ty at the address spemfied m SecUon 13 below (d) Metncom shall obtain and mmntaln at all Umes dunng the term of th~s Ordinance statutory workers' compensation and employer's habd~ty msurance ~n an amount not less than F~ve Hundred Thousand Dollars ($500,000) and shall furmsh the C~ty with a cemficate showing proof of such coverage (e) Any ~nsurance prowder of Memcom shall be admitted and authorized to do business in the State of Texas and shall be rated at least AX ~n AM Best& Company's Insurance Gutde Insurance pohmes and certfficates ~ssued by non-admitted insurance compames are not acceptable (f) Any deductibles or selfqnsured retentions must be stated on the certificate(s) of ~nsurance, which shall be sent to and approved by the C~ty "Cross habthty," "severabd~ty of ~nterest," or "separaUon of ~nsureds" clauses shall be made a part of the commermal general habthty and commercml automobde habdlty policies Page 15 of 23 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 mall, by registered or certified mall, postage prepatd, (b) by means of prepmd overnight delivery service, or (c) by facsimile or emml transmission, if a hard copy of the same is followed by dehvery through the US marl or by overnight dehvery serwee as just described, addressed as follows tf to the Ctty CITY OF DENTON Attn City Manager 215 E McKarmey DENTON, Texas 76201 tf to Metrtcom METRICOM, INC Attn Property Manager 980 Umverslty Avenue Los Gatos, CA 95032 (b) Notices shall be deemed given upon receipt in the case of personal delivery, three (3) days aiter deposit in the mai1, 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 m 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 matenal 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 defanltmg party falls to commence such cure Wlthln forty-five (45) days or falls Page 16 of 23 thereafter dlhgently to prosecute such cure to completion), prowded, however, that the cure period for any monetary default, except as provided in Sectmn 6(c), shall be ten (10) days from receipt of notme Except as expressly provided here~n, the rights granted under this Or&nance are ~rrevocable dunng the term (b) Any term~nataon of the franchise granted by thas Or&nance ~n whole or an part shall not release Metncom from any habfllty or obhgataon hereunder which was accruing or had accrued at the tame of termanatlon, without hmltat~on The provisaons of Section 10 of this franchise shall survive the termanatlon of ti'ns franchise SECTION 15 ASSIGNMENT. (a) Memcom's rights under the francbase granted by this Ordinance are vahd for its m&vadual business use only Metneom shall not lease or sublease or an any way provade rights to any other firm or person Any violation of th~s prowsaon shall be grounds for amme&ate termination of the franchise by the Caty (b) Neither the franchise nor the rights and privileges grant hereunder shall be assagned by Metneom wathout the express written consent of the C~ty, which consent shall not be unreasonably wathheld, condltaoned, or delayed Any attempted assagnment in vlolataon of thas section shall be void (c) Notwathstan&ng the foregmng, the transfer of the rights and obhgat~ons of Memcom hereunder to a parent, subsidmry, successor, or financially viable affiliate shall not be deemed an assignment for the purposes of thru Ordinance Metncom shall gtve the C~ty 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 obhgatlons of Metncom under this Ordinance SECTION 16 MISCELLANEOUS PROVISIONS (a) Nonexcluslve Use This Ordinance does not provide Metncom w~th exclusive use of the Municipal Paght-of-Way or any Mumc~pal Faclhty and City shall have the right to permit other providers of telecommumeatlons services and other services deemed appropriate by the C~ty to ~nstall equipment or devices ~n the Mumc~pal Right-of-Way and on Municipal Faclhties Nothing m flus Ordinance shall be construed to obhgate the City to grant Metncom permission to use any particular facility or Paght-of-Way not covered by this Ordinance (b) In order to assist Metrlcom in ~dentlfymg potential interference situations, the C~ty agrees to promptly notify Metncom of the approval of any proposal for the installation of communications equipment or devices in the Mumclpal R~ght-of-Way or on Mumclpal Facilities (c) Amendment of Ordmanee This Ordinance may not be amended except pursuant to a written mstnm~ent s~gned by both parties (d) Severabflltv of Prowsxons 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 legahty, vahd~ty, or const~tutlonahty of the remammg port~ons of this Ordmance Each party hereby declares that it would have entered into the agreement reflected by this Ordinance and each Prows~on hereof irrespective of the fact that any one or more Provisions be declared illegal, ~nvahd, or unconstitutional (e) Contc in Metnco Metncom 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 C~ty may contact by telephone the network control center operator at telephone number (800) 873-3468 regarding such problems or complaints (f) Gov~rnln~ 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 pnnclples If suit is brought by a party to this franchise, the parties agree that trial of such action shall be vested exclumvely in the state courts of Texas, County of Denton, or ~n the United States District Court for the Eastern D~strlct of Texas (g) Attorneys' Fees Should any dispute arising out of this Ordinance lead to htlgatlon, the prevalhng party shall be entitled to recover its costs of suit, including reasonable attorneys' fees (h) Successors and Assi_mls The provisions of the franchise granted by th~s Ordinance are bmchng upon the successors and assigns of the parties hereto (1) A vm ofD s lacem To the extent the City has actual knowledge thereof, the City wall attempt promptly to Infoma Metncom of the displacement or removal of any pole on which any Radio is located 0) ~ 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 w~thhold ~ts approval or consent (k) ~ The waiver by either party of any breach or violation of any Prows~on of this Ordinance shall not be deemed to be a wmver or a continuing wmver 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 capamty, and anthonty to enter into and perform the part, es' respective obhgatlons hereunder and that such obllgat~ons shall be binding upon such party w~thout the reqmrement of the approval or consent of any other person or entity in connection herewith (m) ~ Th~s Ordmanee contmns the entire understanding between the part, es w~th respect to the subject matter herem There are no representations, agreements, or understandings (whether oral or written) between or among the parties relating to the subject matter of th~s franchme 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, s~gned by a duly authorized representative, whereby Metncom agrees to bmd ~tself legally to the terms and condit~ons of this Ordinance PASSED AND APPROVED this the /~ day of~~', 1999 ATTEST JENNIFER WALTERS, CITY SECRETARY RBERT L PROUTY, CITY ATTORNEY Page 20 of 23 The above and foregoing ordinance read, adopted on~f~rst rea&nS and passed to _second reading by the following votes, this the ~--~ day of ~~J , 19~, at a regul~ session of the C~ty Council Mayor, voting Council Member, voting Council Member, voting Council Member, voting Council Member, voting Council Member, voting Council Member, voting The above and foreg, o3ng ordinance read, adopted on second reading and passed by the following votes, this the ]~-~ day of~~.ff~ 19 ~ , at a regul~ session of the City Council ~ 5~aa (rl6~;6o~ co~c~ Uem~er, voting ~fl ~ n~. STATE OF TEXAS co ,v ov I, ~[~g; /])~[~5, C~ty Secretau of the Cxty oeDenton, Texas, do hereby cemfy that the abo{e ~d'foregmng ~s a tree ~d co~ect copy of the right-of-way rental a~eement be~een ~e C~ty of Denton, Texas, ~d Metncom, Inc, as indicated hereto The sine ~s now recorded ~n Volme ~ Page ~ of the Ordinate Records of the C~ of Denton, Texas ~ESS~ ANDthxsme~dayof~ ~D Mayor, voting ~ ~ ,d Council Member, voting Council Member, voting Council Member, voting Council Member, voting (Seal) WHEREAS, the City Council of the City of Denton, Texas, did on the __ ,19 , enact an Ordinance entitled day of 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 and WHEREAS, smd Ordinance was on the day of 19 , duly approved by the Mayor of smd City and the seal of smd City was thereto affixed and attested by the City Secretary, NOW, THEREFORE, Metncom, Inc hereby in all respects accepts, approves, and agrees to sa~d Ordinance, and same shall constitute and be banding contractual obhgatmn of Metneom, Inc and of the City without wmver of any other remedy by Metncom, Inc or the Oty and files th~s ~ts written acceptance with the C~ty Secretary of the City of Denton, Texas, in has/her office Dated tlus __ day of A D 19 METRICOM, INC By ATTEST Assistant Secretary Acceptance filed ~n the office of the City Secretary of Denton, Texas, th~s __ AD 19 day of City Secretary Page 22 of 22 October 4, 1999 Mr Michael Bucek City Attomey's Office City of Denton 215 East McKmney Denton, TX 76201 ~r~ ~ ~ i1~ ~ OCT 0 ? 1999 Mr Bucek Metncom, Inc hereby accepts the language In the Ordinance granttng a franchise to Metrmom for the use of the City's Rtghts-of-way Metncom also agrees to pay pubhcation costs for this franchme in the Denton Record Chronicle Lason Bemanke ocal Government Relations and Property Manager ~'~ II04J Ables L¢~nc Men, corn® RICOCHET NETWORK DESCRIPTION RicochetTM is an innovative wireless network that enables high speed, low cost, wide area access to the Interact, on-line services, LAN apphcatlons, 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 Rlcochet'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 rooftops Typical deployment consists of lnstalhng 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 tn the network, packets can "hop" around busy or non-functioning radios Expanding coverage, increasing capacity, or achieving commumcatlons ~n 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 dewce comphes with strict FCC Part 15 regulations For example, such regulations stipulate that the maximum transmit power for a Part 15 device Is only 1000 mflhwatts 0 e, one watt) Further, radio transmissions cannot occupy a particular channel for more than 400 milliseconds, the Ricochet service completes a typical transmiss~on - 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 ~nherent security by breaking up lnformat~on 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 addmonal obstacles to interception by potential eavesdroppers and unauthorized users Tc l~ phone FAX 972 620 4180 c)72 247