2000-272 O~INANCE NO d0~-~7 ~7~q
~ O~miNANCE OF TI~E CITY OF DENON, TEXAS, AUT~O~aZINa TI~E CITY
CITY OF DEMON, TEX~S ~'m MET~aCOM, INC, ^UT~O~UZINa T~E
EXPE~ITU~ OF Ftn~S TI~EREFOR AW TI~E COL~.ECTION OF RENTS
THEREFROM, AND PROVIDING AN EFFECTIVE DATE
WHEREAS, the C~ty of Denton and Denton Mtm~c~pal Electric ("DME") own
and operate eertmn electrical fatalities, ~ncludlng electnc hght standards and power
distribution poles, and
WHEREAS, Metncom, Inc ("Metncom") ~s m the bus~ness of constructing,
ma~nta~mng, and operating a w~reless d~g~tal data commumcat~ons radio network known
as "Pucochet", a network operated ~n accordance w~th regulataons promulgated by the
Federal Commumcat~ons Commission ("FCC"), utilizing radios and related eqtupment
certified by the FCC, and
WHEREAS, Metncom has been granted a franchise by the C~ty of Denton for the
use and occupancy of the pubhc rights-of-way of the Caty for w~reless commumcat~ons
purposes, pursuant to Ordinance No 99-436, enacted by the C~ty Council on November
16, 1999, and duly-accepted by Metncom, and
WHEREAS, Metncom, ~n the course of ~ts business, and as contemplated by the
above franchise ordinance, desires to attach, ~nstall, operate, and ma~ntmn a d~g~tal
wtreless commumcat~ons radio network on fac~ht~es owned and operated by DME, and
WHEREAS, the C~ty Council deems ~t ~n the pubhc interest to enter ~nto a Pole
Attachment Agreement w~th Metncom, NOW THEREFORE
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS
SECTION 1 That the recitations set forth and contmned ~n the foregoing
preamble are expressly ~ncorporated by reference into th~s Ordinance
SECTION 2 That the C~ty Manager ~s hereby authorized to execute, on behalf
of the C~ty, a Pole Attachment Agreement between the C~ty of Denton, Texas and
Metncom, Inc, providing for the attachment to the C~ty's power d~stnbut~on poles and
electnc hght standards of Metnenm's w~reless d~g~tal data commumcat~ons radio known
as "Paeoehet," substantmlly in accordance w~th the Pole Attachment Agreement which ~s
attached hereto and incorporated by reference herewith
SECTION 3 That the expenditure of ftmds and the collection of rents as set
forth m the Pole Attachment Agreement ~s hereby authonzed
SECTION 4 That th~s orchnance shall become effective ~mrnedmtely upon ~ts
passage and approval
PASSED AND APPROVED tMs the day of ,2000
EULINE BROCK, MAYOR
ATTEST
JENNIFER WALTERS, CITY SECRETARY
APPROVED AS TO LEGAL FORM
HERBERT L PROUTY, CITY ATTORNEY
By ~J
S\Our Do~ument~\Ordmances\OOkPoleAttaehm~ntAgrmt Mehncom8 00Orddoc
THE STATE OF TEXAS
COUNTY OF DENTON
POLE ATTACHMENT AGREEMENT
,, ~-~
..THIS AGREEMENT ("Agreement), ~s made and entered into th~s the /,9A'~ day of
~, 2000, by and between the CITY OF DENTON, TEXAS, a Home-Rule
C~ty, and~a Mtm~e~pal Corporation lying m Denton County, Texas doing business as Denton
Mumc~pal Electric ("DME"), and METRICOM, INC, a Delaware Corporation, duly organized
to do busmess m the State of Texas ("METRICOM"), for the purposes and cons~deratton
hereinafter stated
WHEREAS, DME owns and operates certain electrical facflmes, including electric hght
standards and power chstnbutlon poles, and
WHEREAS, METRICOM ~s in the business of constructing, maintaining, and operating a
w~reless digital data communications radm network known as Rmochet ®, a network operated m
accordance with regulations promulgated by the Federal Commumcat~ons Commission ("FCC")
utilizing Radios and related eqmpment 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 pubhc rights-of-way of the C~ty for wireless commumcat~ons
purposes, pursuant to Ordinance No 99-436 enacted by the Denton C~ty Council on November
16, 1999, and accepted by METRICOM, and
WHEREAS, METRICOM w~shes to attach, ~nstall, operate, and maintain a digital
wireless commumcat~ons radio network on facflmes owned by DME,
NOW, THEREFORE, the part~es hereby agree as follows
1. Definitions.
1 1 "Agreement" means this Pole Attachment Agreement
1 2 "C~ty" means the C~ty of Denton, Texas
1 2 1 "DME" means Denton Mumc~pal Electric
1 3 "Effective Date" means the date th~s Agreement ~s approved by the Denton City
Council
1,4 "Facthty" or "Facilities' means all street hght poles, hghtlng fixtures, mast arms,
and power d~stnbutmn poles owned and operated by DME, located ~n the hm~ts of
City Thts term shall not include any property owned by another Person other
than DME
1 5 "FCC" means the Federal Commumcat~ons Commtsston, or tts successor agency
1 6 "METRICOM" means Metncom, Inc, a corporation duly orgamzed and exlstmg
under the laws of the State of Delaware, and tts lawful successors, asstgns, and
transferees
1 7 "Person" means an mdlvtdual, a corporatton, a limited habthty company, a
general or hmlted partnership, a sole propnetorshtp, a jotnt venture, a business
trust, and any other form ofbusmess assoctatlon
1 8 "Radio" means that radio eqmpment to be tnstalled and operated by METRICOM
hereunder
1 9 "Ricochet" means the digital wireless communications microcellular radto
network owned and operated by METRICOM
1 10 "Services" means the wireless dtgttal communlcattons servtces provtded through
Rtcochet by METRICOM
2 Scope of Agreement
2 1 SubJect to the provlstons of this Agreement, METRICOM shall have the right to
use eertmn Factht~es owned by DME and located wtthm Ctty's corporate hmlts and wtthm
DME's electric utlhty servtce area for the purpose of attaching tts Radios However, nothing m
this Agreement shall be construed to obligate DME to grant METRICOM permission to use any
particular Facility If such permission ts refused, METRICOM may make any other
arrangements it may wish to provide for tts eqmpment at the location m question, subject only to
obtatnmg perm~ssmn of DME wtth respect to location and compliance wtth such specfficattons
relating thereto as DME may prescribe If permission to use any particular Facthty ts refused,
such refusal shall be reasonable and DME shall use commercmlly reasonable efforts to make
' S
another Famhty available for METRICOM s u e
2 2 This Agreement does not grant a franchise to METRICOM for use of streets,
alleys, public thoroughfares, or public property, nor does thts 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 t~me be prevented from
plactng or mmntalmng its Radios on DME's Facilities, no habthty or responstbthty on account
thereof shall attach to DME
2 3 All Facthttes jomtly used hereunder shall remmn the property of DME, and no use
of such Famlmes, or payment made by METRICOM hereunder shall create tn METRICOM any
ownership tn any of smd Famhtles
Legal/Pole Rental Agreement doc 2
3 Term
3 1 TI'as Agreement shall be an ~ntenm Agreement and wdl terminate one (1) year
from ~ts effective date or s~xty (60) days aider the C~ty adopts the Texas Pubhc Power
Assocmt~ol~ ("TPPA") Standard Pole Rental Agreement, whmhever event ~s later, unless ~t ~s
earher terminated by e~ther party m accordance w~th the provtsmns hereof, and shall commence
on the Effective Date
4 Conditions of Use.
4 1 METRICOM's use of DME's facd~tms shall at all t~mes conform to the
reqmrements of the Nattonal Elecmeal Code, to the latest edition National Electrical Safety
Code, to DME regulatmns and standards, and to all apphcable ordinances, codes, rcsolutmns,
pohc~es and rules and regulations of the C~ty, as apphcable, as determined by DME
METRICOM shall perform all work m a good and workmanhke manner, and shall ensure that
Radios installed by METRICOM are safe and free of material defect m workmanship, materml,
and design METRICOM shall maintain, at ~ts sole cost and expense, by using DME-approved
personnel, all Rathos m good and safe condition and repmr
4 2 In the event the installation of METRICOM's Radios would ~nterfere w~th
attachments already m place belonging to other part, es, the location and method of attachments
of METI~ICOM's Rathos shall be dee~ded by DME METRICOM shall not ~nterfcre m any
manner w~th the exmtence and operation of any and all pubhc and private rights-of-way, samtary
sewers, water mmns, storm drmns, gas mares, poles, aerial and underground electric and
telephone w~res, cable telemmon, and other telecommumcanons, utd~ty, and muruc~pal property
w~thout the express written approval of the owner or owners of the affected property or
properties
4 3 METRICOM's attachments of Radios shall be made and mmntamed by DME-
approved personnel at METRICOM's expense m a place and mariner satisfactory to DME
Upon receipt of not~ee from DME that smd attachments Interfere w~th DME's property or any
relocatmn, removal or rearrangement thereof, or endanger the pubhc or ~ts employees,
METRICOM shall, at ~ts own expense, by using DME-approved personnel, alter, rearrange,
reroute, ~mprove or repmr smd attachments m such mariner and m such reasonable t~me frame as
DME may d~rect
4 4 Prior to attacbang any Radms METP~COM shall dehver to the DME's other
renters on the subject Fae~hty written not,ce of ~ts scheduled approved attachments at least ten
(10) working days prior to commencing attachments Upon request, DME w~ll provide
METRICOM w~th the names of other renters
4 5 METRICOM shall comply w~th all apphcable C~ty, State and Federal laws, rules
and regulations and shall obtmn and comply with all applicable permits, franchise agreements,
right-of-way agreements, and other contht~ons or restrictions apphcable to the Famht~es, m the
exermse and performance of ~ts rights and obhgatlons under th~s Agreement
Legal/Pole Rental Agreement doc 3
4 6 Installation and mmntenance of METRICOM's Radios shall be at METRICOM's
sole expense and performed only by DME-approved personnel
4 7 Before METRICOM may use any DME Famhty ~t shall file a pole attachment
apphcatmn w~th the DME on a copy of the current form therefor (Exhibit "A" attached) and
receive, ~n response thereto, a DME permit If, in the judgment of the DME, ~ssuance of the
permit as requested is undemrable, the DME may disapprove the application, but any such
d~sapproval shall not be unreasonable In any event, w~thln fifteen (15) days after apphcatlon
fihng, DME will g~ve METRICOM written notice of its approval or d~sapproval In the event
METRICOM does not receive a written response to a permit apphcat~on within fifteen (15) days,
such permit shall be deemed approved An approval may contain cond~tmns that shall be within
I)ME's sole reasonable discretion
4 7 1 Along w~th the apphcatlon, METRICOM shall provide to DME a mgned and
sealed statement from an Independent engmeenng 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 ~n or additions to DME's Faclht~es, DME, as a condmon of approval,
shall, within s~xty (60) days after rece~wng from METR/COM all the data DME may
request for th~s 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
crerhts for system betterment METRICOM's obligation is not hm~ted by the estimate,
but METRICOM's obhgat~on 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 apphcatlon for a
permit on the same Facility, all those fihng such apphcat~ons w~thm 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 port~on of the cost estimate, DME will
promptly proceed with the necessary work and shall diligently prosecute it In no event,
however, shall DME be hable to METRICOM or any other person for fadure to complete
the work at any date or as planned and estimated ong~nally
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 wltlun thirty (30) days after the bill thereof is rendered Upon completion of
the work, DME will render a bill for all ~ts actual costs and overhead thereon, to
METRICOM Each past due bill and any unpmd balance thereon shall bear ~nterest at the
rate of ten (10%) percent per annum, or at the maximum legal rate of interest, whichever
rate shall be lesser
4 8 METRICOM may not use a DME Facility or any attachments thereon for a
purpose other than for furmsbang Services, as defined herein, according to the franchise granted
by the C~ty
Legal/Pole R*ntal Agreement doc 4
4 9 Nothing herein contmned 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 competmon thereby created DME shall notify METRICOM of penmt
apphcat~ons for use of Famht~es on wtuch Radios are attached and shall use ~ts best efforts to
ensure any attachments to Factht~es on whmh Radios are attached shall not cause ~nterference
w~th METRICOM's Rachos and/or use of such Facilities
4 10 DME may use, change, operate, and mmntam ~ts Famhtles as ~t sees fit and shall
not be hable to METRICOM for any damage to or interference w~th the maintenance of
METRICOM's Radios resulting from operation and mmntenance of ats Famht~es
5 Compensation
5 1 METRICOM shall pay rental to DME for its attachments to DME Facfllties
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 ~ts radio
equipment to a Facthty
5 1 1 The rental fee shall be ~ncreased effective October 1 of each year dunng
the term hereof, beglnnmg on October 1, 2001, based on the percentage change ~n
the U S Department of Labor, Bureau of Labor Statistics, Consumer Price Index
of all ~tems, for the Dallas Metropohtan Statistical Area that occurred dunng the
prewous calendar year The new rental shall apply commencing with the annual
~nvo~ce next rendered and cont~numg until agam adjusted
5 1 2 Rental shall be payable in advance on October 1 of each year based upon
the hxghest number of Radios attached to Facflit~es dunng any of the preceding
twelve (12) months
5 1 3 DME represents and covenants that DME owns all Facilities for the use of
whmh ~t is collecting from METRICOM the Annual Fee pursuant to this § 5 e__t
seq
5 2 METRICOM shall pay all taxes and assessments lawfully lewed on its property
Such taxes, when lewed by the City, together with the rentals prowded hereunder, shall be
exclusive of and m 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 mstalled Radios ~n excess of that
shown by the cumulative total under "new balance" on the appropriate form, then it shall be
presumed that such excess existed dunng the entire preceding three years and DME shall bill and
METRICOM shall pay an additional amount equal to the apphcable annual rate for all such
Legal/Pole Rental Agreement doc 5
excess Radio ~nstallatlons, mult~phed by 2 5 If such field check reflects fewer installations than
shown by such cumulative total shown on the apphcable form, then Inlhng for ~nstalled Radios
ex~st~ng on the anmversary of the date on winch the first Radio was installed m the year ~n winch
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 apphcable form shall be corrected accordingly
5 4 In the event METRICOM installs a Radio w~thout the written approval of DME,
METRICOM agrees to pay DME, upon demand, a charge of $84 00, in addition to any rent
lawfully owmg DME thereon by METRICOM, for each such Radio installed or removed without
the written approval of DME
6 Removal and Relocation of Radios.
6 1 METRICOM may at any time request ~n writing the removal of its Radios by
DME-approved personnel from any DME Famhty Removal of METRICOM's Radio(s) from
any DME Faclhty shall constitute a termmatlon of METRICOM's right to use such Famhty until
such t~me as a new apphcat~on is subnntted to DME if METRICOM subsequently desires to
once agmn use said Famhty
6 2 METRICOM shall not change the location of any of ~ts attachments or alter its
use of City Faclhtles without prior written C~ty consent, which shall not be unreasonably
cond~tioned, delayed, or withheld, unless otherwise provided ~n the Pdght of Way Use
Agreement between METRICOM and the City of Denton, of even date herewith
6 3 Upon written notme by DME, METRICOM, at its sole expense, shall change,
alter, improve, move, or remove any of its Radios by utlhz~ng DME-approved personnel, as
DME may d~rect to avoid ~nterference, as determined by DME, with DME's use of or changes in
~ts Facdltles Other than ~n case of pubhc emergency, ~n the event METRICOM falls or refuses
to commence such work utd~z~ng DME-approved personnel wltinn a reasonable time [not more
than ten (10) business days at~er DME's written notme] and complete the work w~tinn 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 notme shall not
be reqmred 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 ~n
connection with the eqmpment that may be reqmred by DME, w~thout any habd~ty to
METRICOM, beyond the cost of any damages to Radio, or to any other person METRICOM
wall reimburse DME for the actual costs ~ncurred to relocate, remove, or alter METRICOM'S
attachments under such exigent mrcumstances As used here~n, "emergency" shall mean those
mtuatlons m winch correction or action is necessary to prevent or correct an ~mmedlate threat to
the health or safety of the pubhc
6 4 In the event that any Radio subJeCt to th~s Agreement ~s abandoned and no longer
placed m serwce for a period of slx (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 fall to remove the Radios as reqmred by DME, DME shall be entitled to
remove the Ra&os at METRICOM's sole cost and expense
6 5 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 comphed with all the
provisions of ti'us Agreement, said equipment may be retained by DME to secure such payment
and performance
7 Operation of Radios
7 1 In the event the ~nstallatlon or operation of METRICOM's Radios illegally
interferes with racho, telephone, telegraph or broadcast reception or other regularly used
communication or slgnahng arrangement, METRICOM shall immediately proceed to eliminate
at its expense, the cause of such interference by altenng, rearranging, or changing the ~nstallatmn
or operation of its Radios or any other method necessary to eliminate said cause If tt is
determined that such interference has been caused by improper installation of METRICOM's
Radios, by DME-approved personnel at Metncom's direction, and the determination was made
by C~ty at its expense, METRICOM, when requested by City, shall reimburse City for any
expense in connection therewith without delay
7 2 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 dunng the term of this Agreement, which ~s included within the
rental mount 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 w~th 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 METR/COM pursuant to ~ts franchise w~th
DME shall extend to all activities covered by this Agreement
8 2 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 t~me, and from time to time to such amount as DME
may reasonably determme to be necessary in consideration of the expansion of METRICOM's
Legal/Pole P,~ntal Agreement doc 7
system and as other relevant cond~ttons may warrant The bond shall be tn a form substanttally
stmtlar to Exhibit B attached hereto
8 3 METRICOM shall prowde to DME proof of Workers Compensatton Insurance,
General Commercial Lmblhty Insurance coverage with pohcy hm~ts ~n the amount of no less
than One M~lhon Dollars ($1,000,000) each, wtth DME named as an addttmnal insured, to the
extent permitted by law
8 4 METRICOM shall lndemmfy and save C~ty, tts officers, officials, employees, and
agents harmless from all claims, demands, loss, damages, cost, expense, habtht~es, judgments,
fines, charges, penalties, administrative and judicial proceedings and orders, and all costs and
expenses recurred m connection therewith, mcludmg, wtthout hm~tatlon, reasonable attorney's
fees and costs of defense, resulting from, or arising d~rectly or lndtrectly, ~n whole or ~n part, out
of any acmdent or occurrence causing injury or death to any person, or ~njury, destructmn or loss
of any property, due d~rectly or ~ndlrectly to the neghgent or wrongful use or occupancy of said
Factht~es 0ncludlng all structures and other ~mprovements thereon) by METRICOM or any other
person hokhng for, through, or under METRICOM, except ~n no event will METRICOM
tndemmfy for the neghgence or wdlful m~sconduct of the City or DME, it officers, officials,
employees and agents In the event that any action or proceedings shall be brought agmnst Ctty
by reason of any clmm covered by flus paragraph, METRICOM, upon written notme from Ctty,
wall, at METRICOM's sole cost and expense, resist and defend same
8 5 METRICOM wmves any and all clatms, demands, causes of action, and rights tt
may assert agmnst DME on account of any loss, damage, or tnjury to any Radio or any loss or
degradation of the Servmes caused by an event or occurrence that ts caused by force majeure, or
ts beyond the reasonable control of DME
9 Transfer or Assignment.
9 1 Thru Agreement shall not be assigned by METRICOM without the express
written consent of DME, whmh consent shall not be unreasonably w~thheld or delayed Any
attempted assignment m wolatlon of tfus prowsmn shall be void The transfer of the rights and
obligations of METRICOM to a parent, submdmry, or other affihate of METRICOM, or to any
successor ~n interest or entity acqumng fiRy-one percent (51%) or more of METRICOM's stock
or assets shall not be deemed an assignment METRICOM shall give DME thtrty (30) calendar
days' prior notice of any such transfer Tlus Agreement ts btnd~ng upon the successors and
asstgns of the part,es hereto
10. Notice
10 1 Whenever m th~s Agreement notme ts required to be g~ven by etther party hereto
to the other, each notice unless otherwise expressly prowded, shall be tn writing and mmled first
class, or otherwise delivered, as to the C~ty to
C~ty Manager
C~ty of Denton, Texas
Legal/Pole Rontal Agreement doc 8
215 East McKmney Street
Denton, Texas 76201
And as to METRICOM to
Metneom, Inc
980 University Avenue
Los Gatos, California 95032
Attn Property Manager
10 2 Notices shall be deemed given upon receipt in the case of personal delivery, three
(3) days after deposit m the mall, or the next day m the case of overnight courier Either party
may from time to time designate any other address for this purpose by written notice to the other
party m 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 materml covenant or term hereof by the other
party, whlch 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
fa~ls thereafter to chhgently prosecute such cure to completion However, the grace per~od for
any monetary default is ten (10) calendar days from receipt of notice
11 2 If this Agreement is terminated because METRICOM has defaulted m any of its
material obligations under this Agreement, METRICOM shall utilize DME-approved personnel
to remove its equipment and materials from Facthtles within thirty (30) calendar days from the
cure period In the event METRICOM falls or refuses to utthze DME-approved personnel to
remove its eqmpment 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
11 3 If METRICOM should default in the removal of its equipment and materials
within the time frame allowed for such removal or should default m 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 recurred, including out-of-pocket costs and overhead
1 ! 4 The failure of DME to enforce any provision of this Agreement in any instance
shall not be construed as a waiver or rehnqu~shment 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
12 1 If any section, subsection, or other port~on or provls~on of th~s Agreement ~s for
any reason held to be invalid by the decision of any court or federal or state authority of
competent junsdact~on, such section, subsection, or other portion or provision shall be considered
a separate, d~st~nct and ~ndependent part of th~s Agreement, and such declsmn shall not affect the
validity and enfomeablhty of all other portions of th~s Agreement
12 2 This Agreement shall be governed ~n all respects by the laws of the State of
Texas, and any venue of any action brought under the provisions hereof shall be ~n Denton
County, Texas
12 3 METRICOM understands that flus Agreement does not promde METRICOM
w~th exclusive use of any Facilities and that DME shall have the right to pernnt other prowders
of w~reless and/or telecommumcatlons servmes to ~nstall equipment or devices on the Fatalities
12 4 Th~s Agreement contains the entire understanding between the parties with
respect to the subject matter hereto There are no representations, agreements or understandings
(whether oral or written) between or among the parties relating to the subject matter of th~s
Agreement that are not fully expressed hereto
12 5 Thru Agreement may not be amended except pursuant to a written ~nstrument
s~gned by both part,es
12 6 METRICOM shall be avmlable for d~rect 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, mmntenance, or removal of the Radios
DME may contact METRICOM at (800) 873-3468 regarding such problems or complmnts
12 7 All exhibits referred to m th~s Agreement and any addenda, attachments, and
schedules whmh may from t~me to t~me, be referred to m any duly executed amendment to this
Agreement, are by such reference ~ncorporated ~n th~s Agreement and shall be deemed a part of
this Agreement
12 8 To the extent that C~ty has actual knowledge thereof, DME w~ll attempt to ~nform
METRICOM of the displacement of any Fac~hty upon which any Radio ~s located
12 9 Attachment shall be made only to street hght arms and not to decorative hght~ng
or transnnsslon poles
12 10 Only one attachment shall be made to any single street hght arm Multiple
transceivers shall not be permitted
12 11 DME-approved personnel shall perform all work on DME fac~ht~es per a schedule
of servmes and charges agreed to by separate ~nstmment between METRICOM and DME This
schedule is entitled "Schedule of Values" consisting of five (5) pages, and ~s attached hereto as
Exhibit "C," and is mcorporated by reference herewith
Legal/Pole l~ntal Agroement doc l 0
IN WITNESS WHEREOF, the part~es hereto have executed duphcate ortg~nal
counterparts of thts Agreement, on the day and year first above written
CITY OF DENTON, TEXAS
A Texas Mummpal Corporation
~' l~{chael ~ ]ez~f/~rvl anager
ATTEST
JENNIFER WALTERS, CITY SECRETARY
APPROVED AS TO LEGAL FORM
HERBERT L PROUTY, CITY ATTORNEY
METRICOM, INC
A Delaware Corporation
ATTEST //~ /~ COR?DRAI E 0PS
Approved As To Form
~,~ ROW Legal Department
By ~- ~ By /4,'t~. //4,u/~ ...
Date
S \Our Docum, tts\Conttacts\OO~Pole ^ttachment Agmt Rvs8 3 Met~com msc doc
LegaVPole Rental Agreement doc I 1
ELECTRIC
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 Electnc's ("DME") poles Note that no
entity may make any attachments to DME's poles w~thout hawng first entered ~nto a
binding Pole Attachment Agreement
1 A Licensee and/or Franctusee 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 w~ll review the design or' the proposed attachment(s) to
determine the feasibility of the request and ~dent~fy any necessary make-ready
work to accommodate the attachment(s)
3 A L~censee and/or Franchisee shall submit the completed Apphcat~on for Permit
including a copy of the Pre-Permit Survey design calculations and
recommendations on make-ready work The engineering analys~s must be s~gned
and sealed by a professional engineer
4 DME will rewew the professional engineer's recommendations and discuss any
issues with the Licensee and/or Franchisee
5 DME w~ll complete the make-ready work according to the terms of the Pole
Attachment Agreement
6 DME will s~gn and return the Apphcatlon for Permit anthonzmg the L~censee
and/or Franchisee to make its attachment(s)
06/26/00 MSC
EXHIBIT "A"
Page 12
ELECTRIC
APPLICATION FOR PERMIT
Apphcatlon Date __/ /
To Denton Mumcapal Electric
Attn Dan Scott / Rowdy Patterson
901-A Texas Street
Denton, Texas 76201
Desire to Attach to Poles
Desire to Vacate Poles
Narratave descrtptlon of proposed activity
In accordance with the terms and conditions of the License or Franchise Agreement dated
., apphcat~on is hereby made for a permit to occupy/and or vacate the
poles m the locations detailed on the attached Field Data Sheets and Map Designs and
pursuant to the attached "Minimum Design Rewew Information"
Licensee and/or Franchasee have attached a Pre-Permit Survey that has been cemfied by
a professional engineer experienced with electric utthtY facthtles The engineer's name is
The engineer's registration number is
Licensee/Franchisee
Contact Person Signature
Title
Telephone No
Permission as hereby granted to Laeensee 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 S~gnature
Tttle Date __/ /
Telephone No
S \Our Documents\Contracts\00XPole Attachment Instructtons& Apphcatmn Memcorn Ex doc 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 pnncipal, and
, a corporation organized and
existing under the laws of the State of Texas, hcensed 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 C~ty of Denton, Texas (hereinafter called the Obhgee), ~n the
amount of (Dollars)
($ ) for the payment whereof, the said Pnnclpal and Surety bind
themselves and their heirs, adm~mstrators, executors, successors, and assigns, jointly and
severally, firmly by these presents
WHEREAS, the Pnnc~pal has entered ~nto a franchise agreement w~th the
Obhgee, dated the day of , , for
which agreement is hereby referred to and made a part hereof as fully and to the same
extent as ff cop~ed at length hereto 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 ff the smd Pnnc~pal shall faithfully perform the work m accordance w~th the
plans, spec~ficatlons and agreement documents, then, th~s obhgation shall be null and
void, otherwise to remain an full force and effect,
PROVIDED HOWEVER, that th~s bond is executed pursuant to the provisions
of Chapter 2253 of the Texas Government Code and all habahties on this bond shall be
determined m accordance w~th the prows~ons, cond~tlons and limitations of said Chapter
to the same extent as fiat were cop~ed at length herein
IN WITNESS WHEREOF, the sa~d Principal and Surety have signed and sealed
this tnstrument this day of ., 2000
EXHIBIT "B"
Page 14
Pnnc~pal
METRICOM, INC
By
Surety
By
S \Our Documents\Contracts\00\Perforn~nce Bond TX Statutory Metncom doc
Page 15
Contract No Exhibit C Schedule of Values 7/20/00
EXHIBIT C. SCHEDULE OF VALUES
A UNIT PRICE SCHEDULE
B TIME & EQUIPMENT SCHEDULE
C STREET LIGHT POLE FIELD VERIFICATION
Page 1 of 1 [
Metncom ConfidenUal & Proprietary
Not for thsclosur¢ w~thout written permms~on
I Contract No Exhlbtt C Schedule of Values 7/20/00
A UNIT I~R1CE SCHEDULE
The Contractor shall prepare a firm fixed unit price proposal for the items hsted below
ITEM DESCRIPTION Ol~ WORK EST UNIT TOTAL
UNITS PalCe VALUE
NEW INSTALLATIONS
A1 Attach poletop radio to streethght arm bracket and $66 00
connect power adapter to photoelectric cell base
Reconnect photoelectric cell cap Umt EA
A2 Install mast arm on wooden utfitty pole Attach poletop $108 00
radto to mast arm Pull 2-# 10 AWG cable through mast
arm and connect to electric secondary servtce on utdtty
pole Umt EA
A3 Install mast arm on wooden utfltty pole Attach poletop $100 00
radto to mast arm Pull 2-#10 AWG cable through mast
arm and leave looped at base of mast arm and pole
attachment Umt EA
A4 Connect 2-#10 AWG cable for power tap for emstmg $35 00
poletop radio to electric secondary servtce on uUhty pole
only Material for secondary power tap supphed by
contractor Umt EA
REMOVALS
E1 Remove poletop radm and mountmg hardware installed $66 00
in the manner ofttem A1 Umt EA
E2 Remove poletop radto and mounting hardware installed $108.00
in the manner ofttem A2 Unit EA
E3 Remove power tap to secondary servtce on utility pole $34 00
tnstalled tn the same manner as ttem A4 Umt EA
E4 Zemove electric wtre for power tap from base of N/A
streethght pole to poletop radto attachment on the top of
the pole Umt EA
OPTIONAL An allqnclustve ;tem of work can be employed for ease ofmvmmng Installation and
removal umts from the worksheet above should be summed and the all-lnclustve price averaged
across all umts
~I OF WORK UNITS PRICE VALUE
All-Inclusive Installation & Removal N/A
Page 2 of 2
Metncom Confidential & Proprietary
Not for disclosure without written permission
Contract No Exhtbtt C Schedule of Values 7/20/00
ITEM DESCRIPTION OF WORK EST UNIT TOTAL
UNITS PRICE VALUE
MAINTENANCE REPLACEMENTS
MI Remove exlsting poletop radio, or whip antenna, or $66 00
)hotoelectnc cell power adapter, or all, and replace new
in the same manner Unit EA
M2 Remove short mast arm or electric secondary service tap $128 00
from wooden utility pole, and replace new in the same
manner as item A2 Unit EA
M3 Remove electric w~re for power tap from base of N/A
streethght pole to poletop radio attachment on the top of
the pole, and replace with photoelectric cell power
adapter Umt EA
M4 Power-offpoletop radio by remomng photoelectric cell $35 00
cap, walt 2 minutes, and replace Unit EA
RELOCATIONS
R1 Relocate existing poletop radio from one site to another $160 00 [
m the same manner as item A1 Unit EA
R2 Relocate existing poletop radio from one site to another $200 00
in the same manner as item A2 Unit EA
GSA SPECIALS
S 1 Install poletop radio on traffic signal in manner of N/A
Metncom specification no __ Umt EA
OPTIONAL An all-inclusive item of work can be employed for ease of~nvmmng Replacement
and relocation units from the worksheet above should be summed and the all-reclusive price
averaged across all units
ITEM DESCRIPTION OF WORK UNITS ] PRICE I VALUE
Z2 A1Mncluslve Maintenance and Relocations N/A
1 The above umt prices shall be inclusive of Contractor's overhead and profit requirement
2 All other Contractor costs including moblhzat~on, taxes, transportation, traffic control,
and travel between installation sites shall be included in the above unit prices
3 Work units performed under the aforementioned criteria shall be thoroughly documented
by the Contractor Time and production sheets attesting to such work shall be submitted
with the monthly requlmlon
I Page 3 of 3 I
Metncom Confidential &Propnetary
Not for chselosure without written permission
Contract No Exhzbtt C Schedule of Values 7/20/00
B TIME & EQUIPMENT SCHEDULE
In generals poletop radios shall be installed in accordance with agreed unit costs In
certain circumstances, the umt prices may not be apphcable
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 5enefits Dues Hourly Monthly
1 Project Manager
2 Supenntendent
3 For~ma~
4 Journeyman Lineman $35.00 $52 50
5 Lineman
6 Streethght Techmman
7 Lineman Apprentme
8 Yraffic Control Techmman
9 Flag Person
10 Pohce Detail
13 HI-Ranger Bucket Track $40 O0
14 Rack-body Track
15 Eqmpment Van
16 Mobile Telephone
17 Two-way Radio
18 Pager
T&E payment for Contractor work shall be the remedy for non-standard work not
covered by the Item Price Schedule above
Metncom shall designate non-standard work and both parties shall agree upon the
execution of th~s work in advance of being performed by the Contractor
Page 4 of 4
Memcom Confidential & Proprietary
Not for disclosure without written permission
I Contract No Exhibit C Schedule of Values 7/20/00
3 T&E rates shall be paid if extenuatmg mmumstances arise that preclude adherence to the
normal mstallat~on schedule These mrcumstances must not be caused by the contractor
and must not arise because of subcontractor mismanagement, lack of coordination,
failure to coordinate sufficient personnel m a timely manner, failure to coordinate
materials m a tnnely manner, fmlure to conduct safe practices, or fmlure to obey local
codes and laws Lack of progress by the contractor due to accidents shall not be
sufficient cause to revoke T&E rates
4 The apphcat~on of T&E rates for work performed under the aforementioned criteria shall
be thoroughly documented by the contractor T~me sheets attesting to such work shall be
subnntted w~th the monthly requisition
5 The above rates shall be mclus~ve of Contractor's overhead and profit requirement
6 All other Contractor cost including mobdizatlon, taxes and, transportation shall be
included ~n the above T&E rates
7 Eqmpment rates shall remmn vahd for one calendar year from execuUon of this
agreement or for the duration of the contractor's work under this agreement
8 Labor rates shall remain vahd for one calendar year from execution of thru agreement or
for the duration of the prevmlmg umon contract labor rates
9 Over the hfe ofth~s agreement labor and equipment rates shall escalate annually based on
the pubhshed CPI
C STREET LIGHT POLE FIELD VERIFICATION
ITEM DESCRIPTION OF WORK UNITS PRICE VALUE
MISC Street Light Pole F~eld Verification using Metncom N/A N/A N/A
supplied GPS unit and laptop wth software loaded / PTD
(Pole Top Design Tool) to locate usable poles m Denton
S\OurDocuments\Contracts\00\PoleAttaehmentAgreementExh~bltC ScheduleofValues Memcomdoc
Page 5 of 5 I
Metneom Confidential & Proprietary
I
Not for disclosure w~thout written permission