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HomeMy WebLinkAbout2000-04-20 Agenda • CITY OF ARDEN HILLS Operation & Finance Committee Meeting Agenda Thursday, April 20, 2000 at 7:00 p.m. Arden Hills City Hall,4364 West Round Lake Road I1. Call to Order 2. Roll Call 3. Approve Minutes from February 17, 2000, meeting. 4. Old Business—Continue Discussion On: a. Sewer and water rates - Consider the following to vote on; 1. Remove the senior citizen discount 1)15 2. Promote water conservation measures (implement regulations/guidelines on OA lawn sprinkling) 3. Link sewer rates to lowest quarter water consumption to eliminate paying 4a�� sewer charges on lawn watering OpI G otA A,i b. Garbage haulers - Begin discussions on coordinating garbage and recycling pickup days €4� 5. New Business: a. Metricom Proposal(Joe Lynch, City Administrator, Request) 6. Staff Update 7. City Council Update 8. Other Business 9. Next Meeting Date 10. Adjournment Please contact Pam at (651) 633-5676 if you are unable to attend this meeting. Tell her how you vote on the above issues and she will pass to Committee Chairman. O CITY OF ARDEN HILLS Operations and Finance Committee Minutes Thursday, February 17, 2000 City Hall, 4364 West Round Lake Road 1. Call to Order at 7:04 p.m. 2. Roll Call: Mark Kelliher, Aaron Frederickson, Chuck Mertensotto, Ray McGraw and Charles Stoddard. Also Present: City Treasurer, Terry Post and Council Member, Lois Rem. 3. Old Business a. Sewer and Water Rates 1) It was suggested that the research the committee members conducted during the last month be reduced to writing. Chairman Kelliher volunteered himself to do this. He hopes that it will facilitate a useful discussion next meeting. 1111 b. City Assessment Policy 1) Ray McGraw told the committee about research he has conducted regarding City assessment policies. Specifically, Ray discussed the policy in Shoreview where everyone pays into a general fund for road construction. Ray also noted that the people are assessed to pay for sealing or other improvements done to the street in front of their property. a) As a benefit Ray thought it was a good idea that everyone is taxed the same rate for assessments. Further, Ray noted that this method of assessments reduces the complaints people have when their road is to be reconstructed. 2) There were questions about the viability of such an assessment policy. Terry Post addressed these concerns as well as questions whether such proposal could be accomplished under the state mandated levy limits. 3) Lois Rem was not certain about the Council's feelings on changing the current assessment policy. a) It was suggested that someone from the committee go to a Council meeting and explain the pros and cons of various assessment policies. b) Ray volunteered to represent the Committee before the Council. Ray also stated that he would inquire about the current method of garbage collection. IP 1 O 4. Garbage Collection a. Ray noted that North Saint Paul only accepts two collection contracts. Under this process, any refuse collection company submits bids to the City. The two companies hired then bill the City, who in turn bill the residents. b. Terry Post said that in New Brighton, any company could pick up garbage. However, these companies are limited as to what days they can collect. He said this might help reduce the nuisance garbage cans sometimes create. 5. New Business—NONE a. Staff Update 1) Terry Post—Staff Update a) Residential water meters are being installed. Noted that there are some discrepancies between the remote reader and the meter reading. Terry also noted that this is an opportunity for the City to inspect residential sump pumps. 11. b. Lois Rem—Council Update 1) Noted the creation of the Ingerson Neighborhood Road Improvement Design Review Group. 2) Bethel College park update. The Council approved the plan. There will be two softball fields, two soccer fields and six tennis courts. Lois noted that a few area residents were upset. 6. Adjourn at 8:31 p.m. Respectfully submitted, Aaron P. Frederickson • 2 • & WORLD REPORT 1111ISMIllews NEWS YOU CAN USE charge supports three hours of active data transmission or 12 hours on the Internet. A new sense ofwhat at Now, the "nearly" part: The Ricochet network is established in only three cit- ies—Seattle,San Francisco,and Washing- ton,D.C.,with extensive suburban cover- moderns could a age lu in area.d (For a efull-service map, plus technical details, see zoww. map, .net.)The system also works at 11 major airports, including LaGuardia, Minne- In a wired age, the plugged in will be wireless Chica-St.Paul,and Los Angeles,but not Chicago's O'Hare or Atlanta, the world's JEFFREY MACMILLAN FOR usY6wR two most visited airports.Expansion BY JAMEs FnLI ows ram ; is planned to Southern California '= next year; after that, who knows? • ersonal technology is charming in The company's hopes depend on its"nearly right"stage.This is when - �y ; one-by-one contracts with cities and the product is advanced enough to utility companies to hang its ts.ans hint at its ultimate potential but not =K , w ceivers,each the size of a bread loaf, yet so mature as to be truly practical.The " at 1/4-to-�/z mile intervals. (Ivletri Compaq computers of the early 1980s, x com's main investor is Paul Allen, "portables"the size and weight of sewing ' :`- America's third-richest man, so in machines, were nightmares to lug - .i theory it can afford the expansion.) around—but Hahit-altering.If you live in one of PERSONAL TECH exciting be the favored cities or frequent the cause they ; right airports,is thesystemworthit? implied the To me,it made enough sense to buy. laptops someday to come.The pioneer E- The Internet connections are slower • mail network, MCI Mail,was also nearly than on an ISDN line but faster than right. Cumbersome to operate and lack- via the phone line modems most ing connections with any other system,it people use.Three or four seconds.af- still suggested how electronic communi- ter clicking the Ricochet icon,you're cation could revolutionize life. on the World Wide Web. The latest nearly right product is the Dial-up E-mail services take Ricochet wireless modem system, from slightly longer to connect than they publicly traded Metricom of Los Gatos, would on a phone line.But the free- Calif.The right part is its demonstration dom to connect without a wire is as of what truly wireless connections will habit-altering as cellular phones mean. A proprietary Ricochet modem, Ricochet costs less to use than a cellular modem. have been. I now count on being slightly larger than a pack of cards and able to send and receive E-mail weighing 8 ounces,attaches to your corn- do banking or other online functions) during the dead time of travel, standing puter's serial port.It bounces radio signals through any standard dial-up network. in a line or riding in a cab.Just to be ob- to a series of small transceivers hung from The modern itself costs $349,plus a $45 noxious,I once did so at a football game. utility poles and street lamps around activation fee. After that the service0 , in- To my surprise, I find I use the modem town;these,in turn,pass signals to an In- eluding unlimited Internet connection daily at both home and office; it frees up ternet server.The result is to let you make time and an E-mail account,costs$29.95 a telephone line.As,with the first ungain- reliable wireless connections to the Inter- a month.The modem works with Macin- ly Compaq,I feel I've seen a rough sketch net at nearly 40 kbps,or send E-mail(or tosh or Windows machines. One battery of something big. ■ Abridged from U.S.NEws&WORLD REPORT,APRIL 6, 1998 e Printed on recycled paper. • Metricorn Metricom, Inc. is the leading provider of wide-area, portable wire- less data services. The company's Ricochet Products and Services division, headquartered in Los Gatos, California, provides portable and desktop computer users with high-performance, cost-effective • wireless access to the Internet, private intranets, local-area networks, e-mail, and other online services. The Ricochet service is currently available in the greater San Francisco Bay Area, Seattle, and Washington, D.C., and on several university campuses and airports throughout the United States. Metricom's Industrial Communications division provides both pri- vate networks and communications services to the electric, gas, oil and wastewater industries. For more information, call 1-800 Go- Wireless or visit Metricom's Web site at http://www.metricom.com. Metricom and Ricochet are registered trademarks of Metricom, Inc. IP • CITY OF ARDEN HILLS MEMORANDUM DATE: March 13, 2000 TO: Operations and Finance Committee FROM: Joe Lynch, City Administrator4-404&-- SUBJECT: Right-of-Way Issues Enclosed within is a copy of a Right-of-Way Permit and Facility Use Agreement with MetriCom, a wireless Internet provider. This company has approached the City of Arden Hills wanting to locate their equipment on utility poles owned by Northern States Power and/or the City of Arden Hills. I have enclosed some information from U.S.News and World Report, Telephony, and a telecommunications article from the Wall Street Journal, giving some background and basic information on the company. • I would like the Operations and Finance Committee to review the proposed Right-of-Way Permit and Facility Use Agreement, in light of the educational information provided to determine what steps, if any,the City of Arden Hills should take at this time with MetriCom. My understanding of the situation is that the company would locate radio boxes on the light poles within the right- of-wayof the Cityof Arden Hills. These radio boxes transmit at the 900-megahertz level at various intervals to locations in and throughout the City of Arden Hills for wireless Internet users. The Customer Service Representative has indicated that this is not subject to a franchise agreement, but has indicated a willingness to give the City of Arden Hills ten(10) free wireless service accounts as part of the installation in the City of Arden Hills. As well,they have indicated that the City can purchase ten (10) modems that will pick up the radio frequencies and deliver the wireless internet service to wherever the City has located the modems. In addition, MetriCom will give the City of Arden Hills, on an annual basis, one percent (1%) of their gross revenues of sales within the City of Arden Hills. At first blush,this may seem to be quite a bit, but their Customer Service Representative indicates that market penetration is usually between two and four percent (2—4%), which leaves the City with only about $400 net as a result of this "gift." MetriCom will also reimburse the City of Arden Hills up to $1,000 for our legal fees for review of the enclosed Permit and Agreement. • • Memorandum, Right-of-Way Issues Page Two March 13, 2000 I would like the Operations an Finance Committee to bring a recommendation back to the City Council for their April 10,2000 regular meeting. This recommendation should consider such things as: • Should this Permit and Use Agreement, and the company itself, go through a Planning process to present this information to the Planning Commission to pass along a recommendation to the City Council? • Should this organization be able to go right to the City Council and discuss and negotiate the Permit and Use Agreement? • Is this not a piece of technology and use in which the City would be interested? If you need more information, or have any questions, I'm available at your convenience. CC/Right-of-Way File III Warren E.Peterson PETERSON Suite 300 Jerome P Filla 50 East Fifth Street Fram Daniel Witt Bergman FRAM BERGMAN St.Paul,MN 55101-1197 55 Glenn A.Bergman Alkhn Michael Miller (651)291-8955 chael T.Oberle (651)228-1753 facsimile Illgreven H. Bruns* Paul W. Fahning Esther E.McGinnis Jeffrey J.Cohen Direct Dial #(651) 290-6907 March 13, 2000 Mr. Joe Lynch City Administrator City of Arden Hills 4364 W. Round Lake Road Arden Hills MN 55112 RE: Metricom Agreement City of Arden Hills PF&B File No. 10450.000001 Dear Joe: I have reviewed the Right-of-Way Permit and Facility Use Agreement which was drafted by • Metricom, the League of Minnesota Cities and the Suburban Rate Authority. The Agreement is in proper legal form. Please refer to Section 6.2 entitled "Limitation of City's Liability". This kind of paragraph normally is tied into the maximum limits contained in the Municipal Tort Liability Act. However, in this case I am assuming that the issue was reviewed by the League of Minnesota Cities and this language was acceptable. In any event, the dollar value of the radios which would be attached to light poles within the City of Arden Hills is such that the City's current liability policies would apply with adequate coverage even if the City were determined to be responsible in some manner for negligence. If you have any questions, please contact me. Very tr ours, J( IEEme . IlI a JPF:lk • 'ALSO ADMITTED IN WISCONSIN An INTERTEC®/PRIMEDIA Publication MARCH 29, 1999 TELEpHriwNy . www.internettelephony.com CARRIERS, CONVERGENCE &COMPETITION ©ETWORKS V) V) -i J Metricom suits up for national play LLJ Ce High speeds and flat rates differentiate operator NANCY GOHRING finetricom is implementing some Cahner's In-Stat Group. Cellular digi- ny had to work with 1300 munici- changes that should make its tal packet data (CDPD) offers lower palities to gain buildout rights in attractive concept even more data speeds,and many CDPD opera- the 14 cities where it hopes to build attractive—to both investors and tors charge based on the volume of by the second quarter. "It's a painful potential customers. The mobile data that users transmit, making it process," Firth said. wireless data service provider recent- difficult for users to predict expenses. Metricom recently changed its tar- ly tweaked its focus and soon will Until operators deploy third gen- get customer from consumers to implement a second generation tech- eration networks, few can compete business people, trimming some dis- nology. It's also seeking partners to with Metricom's offering. tribution costs and continuing a support future growth plans. "Metricom has a window of rapid rate of customer acquisition. Ricochet II, the new technology, will offer 128 kb/s data rates at HOW RICOCHET WORKS mobile speeds of up to 70 miles per III hour. The current system, which a offers 28 kb/s rates,consists of pole- ,Metrocell radios top radios, fixed usually on street treef lamp poles,which can only listen or lights u oles talk. "They can't do both simultane- Wired ously,"said John Wernke,senior vice ' access Internet,intranets, president of marketing and sales. point LANs, ISPs The new system, which will still • - ':-.'t use the unlicensed channels in the ' 900 MHz frequency band,will listen ,EgModem radio — - and talk at the same time. In addi- , Computer device tion, radios will communicate with other pole-top radios and a wireless access point using the licensed wire- opportunity,"said Nagi Jaffery,wire- Attracting the current 27,000 cus- less communications services spec- less analyst for Dataquest. If it can tomers with only three cities built is trum—the 2.3 and 2.4 GHz fre- deploy widely before the 2003 time quite impressive, especially corn- quencies. "We added capacity by frame, it has a chance of being suc- pared with other data networks with dual-banding them," Wernke said. cessful. In fact, Dataquest projects near national coverage. "Despite the Ricochet II also will eliminate that Metricom will have 1.2 million fact that they have limited reach, some latency issues on today's net- subscribers by 2003. they have been quite successful in work. Currently, information hops Metricom offers service today attracting customers,"Jaffery said. two to three times along pole tops only in San Francisco, Seattle and Metricom recently announced a before it reaches the wireless access Washington, D.C. The company relationship with NationsBanc point. Using the higher frequencies intends to change out the existing Montgomery Securities for assis- allows most connections to be made slower speed systems there and tance in finding strategic partners, with only one hop. build out in 50 cities within two mainly to obtain financing. The new high data speeds, cou- years. That's no small feat, though. In February 1998, Paul Allen's pled with a flat pricing scheme, sets In order to build out in a region, investment company, Vulcan Metricom apart from competitors. Metricom must negotiate with town Ventures, invested $55.8 million in • Users pay$29.95 a month for unlim- councils for permission to hang Metricom for a 49.5% ownership. ited use without roaming charges. radios on utility poles. Backing by such a high-profile "Speed and the bucket are Although Metricom has it easier investor should help convince pos- Metricom's biggest advantage," said than traditional mobile operators sible suitors of Metricom's value, Fran Firth, senior analyst for that must build towers, the compa- Firth said. :e: Reprinted with permission from the March 29, 1999 issue of Telephony® Copyright 1999, Intertec Publishing,A PRIMEDIA Company,Overland Park,KS.All rights reserved. D10NDAY,SEPTEhf ,1999 F - "{ ;, . ,�', r?.tt ,. - TILE WALL STRE7 IJR AI R15 EOQUNiQA!I1IO THE BUSINESS IN THE LEAD. R . FOR Now ..... .... Metricom has been a b•ig fish in the small pond of wireless Internet service firms. What happens as the pond gets bigger? B DAVID P.HAhIILT0�1 wireless networks. h[etricom's network ,_ -, expensive proposition,even when each ra- gears from a technical focus to a market: Y may deliver data faster than its competi- Ready to Connect? 3, dio cost just under S2,000,far less than an ing focus." „Y tors, but it's still limited geographically Metricom has been a pioneer in prodding wireless interact service,but ttssub•', s ordinary cellular base station.As a result, Mr.Dreisbach's team decided that F WIRELESS ACCESS to the Internet and its subscriber base remains fairly - t Metricom made the decision early to limit addition to expanding their network n I is finally coming of age in the U.S.,it small-only 29,000 customers as of the end scriber base remains cm;IU(subscribers in thousands) , ` „. its coverage to a handful of cities,a list tionwide,the company needed to more a - may prove to be a mixed blessing for of June. Cellular providers, meanwhile, 30 -t that currently includes only the San Fran- gressively target highly mobile worker! one of its pioneers,Metricom Inc, have announced network-upgrade Mans Cisco Bay area,Seattle and Washington, the so-called road warriors who need These should be the best of times that could deliver data transmission -25 D.C. less access wherever they go. wd for hfetricom, a Los Gatos, Calif., speetis�tvatmgtaose of atetncom within a „ Metricom launched the Ricochet ser- Indeed,that was also one reason to he company with one of the first fiat- few yeah, vice in September 1995,and for more than celerate the development of Ricochet..2; rate wireless Internet services in the na- ''Wireless carriers are eyeing the In -20 • a year added roughly 3,000 subscribers now slated to begin service in mid-2000'in tion.While traditional cellular carriers are ternet space with greed and envy,"says each quarter. By late 1997, however, 12 cities, including New York, Dalla$; Just starting to target the suddenly hot Darryl Sterling, an analyst with Yankee r 15 growth started to slow,because Metricom Chicago and Los Angeles.Metricom plans market for wireless data, Metricom al- Group,a market-research firm in Boston t, had specifically aimed its service at college to expand service to 46 cities by the middle ready has an established subscriber base, By next year,analysts say,most new , 70 "„s• students and professionals who needed a 2002. its own dedicated wireless data technol- cellular-phone handsets will handle data simple and inexpensive way to send a-mail The investment by Mr.Allen and MCI ogy,and a network that can handle data at at least to the extent of providing simple a and surf the Web close to home.But college WorldCom not only ensures that Metricom speeds of up to 23.8 kilobits a second, mail and two-way paging capability.And S - students tended to cancel their service at has the funds to complete Ricochet 2,but roughly twice as fast as those of its nearest network upgrades should make it easier to ,-;`- ' the end of every school year,and the local also offers the prospect of raising its n9' competitor, use cellular phones as wireless modems for F1 0 s, engineers and salespeople that Metricom tionwide profile. MCI WoridCom, for in- ,,better, Metricom in June re- notebook computers. ', 19^"U.2Q ;,3q 49 iq 34 ' 34 .40 . 111 tq ,Sq . 4Q 1q' 2q' hoped to reach never signed on in large stance,will distribute the Ricochet service ceived a S600 million investment from MCI Mr.Dreisbach and other Metricom off i- 1996 1997 1999 -ig99 : numbers. in a nonexclusive arrangement for five WorldCom Inc.and Vulcan Ventures,an cials say they aren't worried about the can- Sixece MericorInc zs ; That prompted some soul-searching years. investment artnershi headed b Mi•p p y petition.And analysts generally agree that among company officials as capital started Mr.Allen,meanwhile,is rumored to be crosoft Corp.co-founder Paul Allen.That Metricom stands a good chance of estab- to run short.By September 1997,Metricom considering linking the Ricochet 2 network means Metricom finally has the support it fishing itself in the wireless world.Its ser- decided to scale back its marketing of Ric- with his extensive cable-television hold- peeds to build out its even-faster next-gen- vice,designed for use with a notebook or ochet and to marshal its resources instead ings,possibly in order to provide cable-mo' eration network,and to market its service desktop personal computer,provides a con- Wireless carriers are eyeing the Internet on the development of its next generation dem users with a wireless"upstream"con- fo road warriors across the U.S. tinuous,"always on"Internet connection, network,Ricochet 2,designed to provide nection to the Internet that would bypiiss "It's a great endorsement for us,"says in contrast to conventional dial-up service ] , data speeds of up to 123 kilobits per sec- local telephone companies. Metricom President Tim Dreisbach."It's a .that requires users to login each time.Sub- space with greed and envy, says one analyst and-much faster than Ricochet l's 28.8 Mr. Dreisbach argues that Metricom validation of the market and the way we're scribers seem generally happy,and while kilobits and roughly twice as fast as to- will be able to keep one step ahead of cellu'; going to apply our technology to a nation- there still aren't many of them.Metricom's day's 56-kilobit modems. tar competitors,whose next speed upgrade wide network." iconoclastic struggle to build its own dedi- ity.Then Metricom officials hit upon the dio spectrum-one shared with garage- Focus on Marketin will take their network speeds only up to 6-i Holding the Lead cated wireless data infrastructure could fi- idea of creatinga high-speed data network door openers.baby monitors and similar kilobits per second-and probably won't pally pay bi dividends once it lights up its with their radio technology-one they short-range radio devices. So in mid-1993.Metricom's board de- deliver speeds comparable to Ricochet 2 • As that market grows,however,the big m - e ra ion nete e. a. would eventually name Ricochet because Metricom could also design its network cided to bring in new managers,including until 2002 or so. question for Metricom is whether it can of the way the system bounced transmis- specifically to handle data,allowing it to Mr.Dreisbach•to revamp the company's In addition, he says, Metricom'l stay ahead of competitors who have mid- i he Rise of Ricochet sions from radio to radio. sidestep some of the technological compro- strategy. (Metricom's former president• serving a different market by offering, denty awakened to the emerging opportu• Metricom's unique path to wireless ' That approach held several advan- raises that cellular providers are wrestling Robert Dilworth,remains the company's high-speed wireless directly to PC users: nities in providing electronic mail,mes- data service is largely the consequence of a tages.Instead of buying the rights to ex- with in converting their systems to carry chairman.) "We had a lot of folks who cellular companies,by contrast,are mdl'k' salting and even full Internet access across quirk of history.Until 1995,the company pensive chunks of radio spectrum the way data. were bright at developing the technology." likely to focus oh more limited wireless' was primarily in the business of building traditional cellular providers have done. However,use of the low-powered ra- says John Wernke,Metricom's sales and data services such as offering stock` Ms.li+.MILTON IS A STAFF REPORTER IN THE WALL short-range radio sets that beamed elec- Metricom designed its network to work in a dios meant that Metricom had to install a marketing chief,who joined the company quotes,maps and access to airline resin STREET JOURNAL'S SAN FR,+,NCISCO BUREAU. tric-meter readings back to the local util- largely unregulated twilight zone of the ra- radio transceiver every mile or two-an in August 1998. "But we needed to shift vat ion systems.P • e Reference Draft Highlight of changes made by Metricom as requested by LMC and SRA . - [NAME OF MUNICIPALITY] I Right-of-Way Permit and Facility Use Agreement HIS RIGHT-OF-WAY USE AGREEMENT (this "Use Agreement') is dated as of , [Year of Agreement Date] (the "Effective Date"), and entered into by and between the CITY OF [NAME OF MUNICIPALITY], a Minnesota local government unit (the "City"), and METRICOM, INC., a Delaware corporation ("Metricom"). Recitals A. Metricom owns, maintains, and operates, in accordance with regulations promulgated by the Federal Communications Commission, a mobile digital data communications radio network known as Ricochet®, utilizing Radios (as defined in § 1.10 below) and related equipment certified by the Federal Communications Commission. B. For purpose of operating Ricochet®, Metricom wishes to locate, place, S attach, install, operate, and maintain Radios in the Public Right of Way (as defined in § 1.9 below) on facilities owned by the City, as well as on facilities owned by third parties therein. Agreement Now, therefore, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree to the following covenants, terms, and conditions: 1 DEFINmONs. The following definitions shall apply generally to the provisions of this Use Agreement: 1.1 Adjusted Gross Revenues. "Adjusted Gross Revenues" means the gross dollar amount received by Metricom for its Services (as defined in § 1.11 below) provided to subscribers with billing addresses in the City, excluding (i)--ttte--Rigllt-ef--Way--Management----Reim-bufsemeMF—if--afiy, any utility users' tax, Right-of-Way Permit and Facility Use Agreement City of[Name of Municipality]::Metricom,Inc. Page 1 of 17 • 4, communications tax, or similar tax or fee; (ii) local, state, or federal taxes that have been billed to the subscribers and separately stated on subscribers' bills; and (iii) revenue uncollectible from subscribers (i.e., bad debts) with billing addresses in the City that was previously included in Adjusted Gross Revenues. 1.2 City. "City" means the City of[Name of Municipality]. 1.3 Fee. "Fee" means any assessment, license, charge, fee, imposition, tax, or levy of general application to entities doing business in the City lawfully imposed by any governmental body (but excluding any utility users' tax, franchise fees, communications tax, or similar tax or I fee). 1.4 Installation Date. "Installation Date" shall mean the date that the first Radio is installed by Metricom pursuant to this Use Agreement. 1.5 Laws. "Laws" means any and all statutes, constitutions, ordinances, resolutions, regulations, judicial decisions, rules, tariffs, administrative orders, certificates, orders, or other requirements of the City or other governmental agency having joint or several jurisdiction over the parties to this Use Agreement. • 1.6 Metricom. "Metricom" means Metricom, Inc., a corporation duly organized and existing under the laws of the State of Delaware, and its lawful successors, assigns, and transferees. 1.7 MPUC " MPUC" means the Minnesota Public Utility Commission. 1.8 Municipal Facilities. "Municipal Facilities" means City-owned street light poles, lighting fixtures, electroliers, or other City-owned structures located within the Public Right of Way and may refer to such facilities in the singular or plural, as appropriate to the context in which used. 1.9 Public Right of Way. "Public Right of Way" means the space in, upon, above, along, across, and over the public streets, roads, highways, lanes, cartways, courts, ways, alleys, boulevards, sidewalks, bicycle lanes, and places, including all public utility easements and public service easements 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 entity other than the City, except Right-of-WayPermit and Facility Use Agreement City of[Name of Municipaliql::Metricom,Inc. • Page 2 of 17 •• as provided by applicable Laws or pursuant to an agreement between the City and any such person or entity. If the City adjusts its boundaries pursuant to Minn. Stat., Chap. 414 through annexation, incorporation, combination, detachment, or other means, this Use Agreement shall be binding on the entire area within the City's boundaries after the adjustment. 1.10 Radio. "Radio" means the radio equipment, whether referred to singly or collectively, to be installed and operated by Metricom hereunder. 1.11 Services. "Services" means the mobile digital communications services provided through Ricochet® by Metricom, which services consist principally of wireless Internet, e-mail and local area network access and may include transmission of sound and video images; provided, however, that "Services" shall not be construed, interpreted or applied to authorize either real time telecommunications services (including telephone and voice) or video or cable television communications services except as may be considered standard Internet content. 2 TERM. This Use Agreement shall be effective as of the Effective Date and shall extend for a term of nine (9) years commencing on the Installation Date, unless it is earlier terminated by either party in accordance with the provisions herein. The term • of this Use Agreement shall be renewed automatically for three (3) successive terms of five (5) years each on the same terms and conditions as set forth herein, unless either party notifies the other of its intention not to renew not less than thirty (30) one hundred eighty (180) calendar days prior to commencement of the relevant renewal term. 3 SCOPE OF USE AGREEMENT. Any and all rights expressly granted to Metricom under this Use Agreement, which shall be exercised at Metricom's sole cost and expense, shall be subject to the prior and continuing right of the City under applicable Laws to use any and all parts of the Public Right of Way exclusively or concurrently with any other person or entity and shall be further subject to all deeds, easements, dedications, conditions, covenants, restrictions, encumbrances, and claims of title of record which may affect the Public Right of Way. Nothing in this Use Agreement shall be deemed to grant, convey, create, or vest in Metricom a real property interest in land, including any fee, leasehold interest, or easement. Any work performed pursuant to the rights granted under this Use Agreement shall be subject to the reasonable prior review and approval of the City. Right-of-Way Permit and Facility Use Agreement City of[Name of Municipality]::Metricom,Inc. Page 3 of 17 • • 3.1 Attachment to Municipal Facilities. The City hereby authorizes and permits Metricom to enter upon the Public Right of Way and to locate, place, attach, install, operate, maintain, remove, reattach, reinstall, relocate, and replace Radios in or on Municipal Facilities for the purposes of operating Ricochet® and providing Services. In addition, subject to the provisions of§ 4.3 below, Metricom shall have the right to draw electricity for the operation of the Radios from the power source associated with each such attachment to Municipal Facilities. 3.2 Attachment to Third-Party Property. Subject to obtaining the permission of the owner(s) of the affected property, the City hereby authorizes and permits Metricom to enter upon the Public Right of Way and to attach, install, operate, maintain, remove, reattach, reinstall, relocate, and replace such number of Radios in or on poles or other structures owned by public utility companies or other property owners located within the Public Right of Way as may be permitted by the public utility company or property owner, as the case may be for the purposes of operating Ricochet® and providing Services. Upon request, Metricom shall furnish to the City documentation of such permission from the individual utility or property owner responsible. City agrees to cooperate with Metricom, • at no cost or expense to City, in obtaining where necessary the consents of third-party owners of property located in the Public Right of Way. 3.3 No Interference. Metricom in the performance and exercise of its rights and obligations under this Use Agreement 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 electrical and telephone wires, electroliers, cable television, and other—teleeuamntnmieations information or communications, utility, or municipal property, without the express written approval of the owner or owners of the affected property or properties, except as permitted by applicable Laws or this Use Agreement. City agrees to use reasonable efforts to require the inclusion of the same or a similar prohibition on interference as that stated above in all agreements and franchises City may enter into after the Effective Date with other information or communications providers and carriers. Right-of-Way Permit and Facility Use Agreement City of(Name of Municipality :Metricom,Inc. Page 4 of 17 • 3.3.1 Interference Resolution. Any actual or anticipated radio interference caused by either the presence of the Radios or the presence of any such other communications equipment or devices in the Public Right of Way shall be resolved by Metricom and any such other providers without cost to City on the basis of the applicable rules, regulations, practices, and procedures of the FCC. City agrees to assist Metricom in the resolution of any such interference dispute at Metricom's sole expense. 3.4 Compliance with Laws. Metricom shall comply with all applicable Laws in the exercise and performance of its rights and obligations under this Use Agreement. The Right-of-Way Management Reimbursement provided for in §4.1 below shall be in lieu of all other City fees, with the exception of any City permits required for the initial installation of the Radios. City shall promptly respond to Metricom's filings and shall otherwise cooperate with Metricom in facilitating the deployment of Ricochet®in the Public Right of Way in a reasonable and timely manner. 3.5 Location and Installation of Radios. The proposed locations of Metricom's planned initial installation of Radios shall be consultation—determined subject to the reasonable prior review and approval of the City, promptly after Metricom's review of available street light maps and prior to deployment of the Radios. Upon the completion of installation, Metricom promptly shall furnish to the City a pole list showing the exact location of the Radios in the Public Right of Way. 4 COMPENSATION; UTILITY CHARGES. Metricom shall be solely responsible for the payment of all lawful Fees in connection with Metricom's performance under this Use Agreement, in accordance with the terms set forth below. 4.1 Right-of-Way Management Reimbursement In order to reimburse City for any right-of-way management costs it may incur during the term of this Use Agreement following the initial deployment of the Radios in connection with Metricom's entry upon and deployment within the Public Right of Way, Metricom shall pay to the City, on an annual basis, an amount equal to one percent (1%) of Adjusted Gross Revenues (the "Right- of-Way Management Reimbursement"), which amount may be collected from subscribers of the Services with billing addresses in the City and remitted to City as provided herein. The parties agree that such Right-of-Way Management Reimbursement represents a fair estimate of the Right-of-Way Permit and Facility Use Agreement Gty of(Name ofMunicipality]:•Metricom,Inc. • Page 5 of 17 • costs of continuing management of the Public Right of Way utilized by Metricom and that such Right-of-Way Management Reimbursement is not a franchise fee or payment for use of the Public Right of Way. The Right-of-Way Management Reimbursement shall be payable for the period commencing upon the date that Services are offered to commercially paying subscribers within the City using Radios installed pursuant to this Use Agreement and ending on the date of termination of this Use Agreement, and shall be due on or before the 45th day after the end of each calendar year or fraction thereof. Within forty-five (45) days after the termination of this Use Agreement, compensation shall be paid for the period elapsing since the end of the last calendar year for which compensation has been paid. Metricom shall furnish to the City with each payment of compensation required by this section a statement, executed by an authorized officer of Metricom or his or her designee, showing the amount of Adjusted Gross Revenues for the period covered by the payment. If Metricom discovers any error in the correct amount of compensation due, the City shall be paid within thirty (30) days of discovery of the error or determination of the correct amount. Any overpayment to the City through error or otherwise shall be refunded or offset against the next payment due. Acceptance by the City of any payment due under this section shall not be deemed to be a • waiver by the City of any breach of this Use Agreement occurring prior thereto, nor shall the acceptance by the City of any such payments preclude the City from later establishing that a larger amount was actually due or from collecting any balance due to the City. City may, at any time, at City's sole options upon ninety-(90) days written notice, require Metricom to discontinue the Right-of-Way Management Reimbursement compensation. Upon receiving such notice Metricom shall, no later than ninety (90) days after receiving such notice, cease making all compensation payments that would have been payable after such ninety (90) day notice period. If City requires such a discontinuation of Right-of- Way Management Reimbursement compensation, the City may then charge, on an annual basis, its actual Right-of-Way Management costs (pursuant to Minnesota Statutes Sec. 237.162, Subd. 9 and Sec. 237.163, Subd. 2 (b))1 that are incurred after the expiration of the ninety (90) day period described above. Metricom shall only be liable for such actual annual Right-of-Way management costs to the extent such costs exceed the annual retail value of the service subscriptions for which the City is eligible under Section 4.5 of this Agreement. Right-of-Way Permit and Facility Use Agreement ety of[Name of Municipality]::Metricom,Inc. Page 6 of 17 S 4.1.1 Reduction of Right-of-Way Management Reimbursement by Amount of Utility Users orTelecommunications-Communications Tax. Notwithstanding anything to the contrary in this Use Agreement, if the Services are subject to a utility users tax, telecommunications-communications tax, or other similar tax or fee which accrues to the City by operation of the City's Municipal Code or other applicable law, then the amount of the Right-of-Way Management Reimbursement shall be reduced by the amount of the applicable utility users tax, telecommunications communications tax, or such other similar tax or fee. • 4.1.2 Accounting Matters. Metricom shall keep accurate books of account at its principal office in Los Gatos or such other location of its choosing for the purpose of determining the amounts due to the City under § 4.1 above. The City may inspect Metricom's books of account relative to the City at any time during regular business hours on thirty (30) days' prior written notice and may audit the books from time to time at the City's sole expense, but in each case only to the extent necessary to confirm the accuracy of payments due under§4.1 above. Alternatively, Metricom will make available for inspection by the City at Metricom's office located closest to the City, upon thirty (30) days prior written notice, the relevant portions of its books and records as reasonably necessary to confirm the accuracy of any payments due the City under this Use Agreement. The City agrees to hold in confidence any non-public information it learns from Metricom to the fullest extent permitted by Law. 4.2 Annual Fee. As compensation for the use of Municipal Facilities, Metricom shall pay to the City an annual fee (the "Annual Fee") in the amount of Sixty Dollars ($60.00) for the use of each Municipal Facility, if any, upon which a Radio has been installed pursuant to this Use Agreement. Where light poles or other facilities to be used by Metricom within the Public Right of Way are owned by a utility, such annual fee shall be paid to the appropriate utility and not to the City. The aggregate Annual Fee with respect to each year of the term shall be an amount equal to the number of Radios installed on Municipal Facilities during the preceding twelve (12) months multiplied by the Annual Fee, prorated as appropriate, and shall be due and payable not later than forty-five (45) Right-of-Way Permit and Facility Use Agreement City of[Name of Municipality]::Metricom,Inc. Page 7of 17 • days after each anniversary of the Installation Date. City represents and covenants that City owns all Municipal Facilities for the use of which it is collecting from Metricom the Annual Fee pursuant to this § 4.2. 4.2.1 CPI Adjustment. Effective commencing on the fifth (5th) anniversary of the Installation Date and continuing on each fifth (5th) anniversary thereafter during the term, the Annual Fee with respect to the ensuing five-year period shall be increased by a percentage amount equal to the percentage increase, if any, in the U.S. Department of Labor, Bureau of Labor Statistics Consumer Price Index (All Items, All Consumers, 1982-1984=100) which occurred during the previous five-year period for the Midwest Urban Region Consolidated Metropolitan Statistical Area. 4.3 Electricity Charges. Metricom shall be solely responsible for the payment of all electrical utility charges to the applicable utility company based upon the Radios' usage of electricity and applicable tariffs. 4.4 Reimbursement of City's Project Review Expenses. Metricom shall reimburse the City at City's standard rates for reasonable attorney's fees and other project review expenses relating to the preparation and review of this Use Agreement, promptly upon receipt of itemized bills, paid invoices, and other such documentation as Metricom shall reasonably require, and in a total amount not to exceed One Thousand Dollars ($1,000). The reimbursement provided for in this § 4.4 shall not replace or excuse Metricom from the payment of any applicable permit fee for work undertaken pursuant to the initial installation of the Radios. 4.5 Municipal Subscriber Program. t—erder--te encourage- the--u c of Ricochet® -throughout----the---City----and t©- -facilitate---ereative----applications therefore, City shall have the right throughout the term of this Use Agreement to receive up to the maximum number specified below (based upon the City's population) of free Ricochet® basic service subscriptions. The number of free subscriptions which the City may receive shall be determined in accordance with the City's official population, as shown on the latest available census data, as follows: (a) for municipalities with a population of less than 100,000, up to a maximum of ten (10) free subscriptions; (b) for municipalities with a population of between 100,000 and 249,000, up to a maximum of fifteen (15) free subscriptions; (c) for Right-of-Way Permit and Facility Use Agreement City of[Name ofMunicipalityl.'Metricom,Inc. Page 8 of 17 • • municipalities with a population of between 250,000 and 500,000, up to a maximum of twenty (20) free subscriptions; and (d) for municipalities of over 500,000,up to a maximum of twenty-five(25) free subscriptions. City shall designate one person who shall be responsible for ordering and receiving any subscriptions. To take advantage of this program, the designated individual should contact Metricom's Network Real Estate Department at the address stated in § 8 below City's right to use the subscriptions shall commence at the time that Ricochet® service is commercially available in the City and shall extend until the expiration of the term of this Use Agreement or through the length of time that Radios are deployed in the Municipal Right of Way, whichever is longer. City's use of the subscriptions shall be subject to the standard Ricochet® terms and conditions of use. City understands and agrees that modems and equipment required to utilize the subscriptions and any additional service subscriptions or service options the City may desire may be obtained from an authorized retailer at market rates current from time to time. City shall use all subscriptions provided pursuant to this section solely for its own use and shall not be entitled to resell, distribute, or otherwise permit the use of same by any other person, excepting a local public entity that provides public service within the corporate boundaries of the City (e.g., municipal schools, public safety, or fire departments, etc.). The level of • benefits and service provided to City by Metricom as "basic service" shall not be diminished or reduced during the term of this Use Agreement or renewal thereof or prior to its cancellation or termination, as the case may be. 4.6 Most-Favored Municipality Clause. Should Metricom after the parties' execution and delivery of this Use Agreement enter into a right-of-way permit and facility use agreement with another municipality of the same size or smaller than the City as compared with cities in the Minnesota counties of Anoka, Carver, Dakota, Hennepin, Ramsey, Scott and Washington,' which agreement contains either (a) a higher Right-of Way Management Reimbursement as described in § 4.1 above or (ab) a higher Annual Fee as described in § 4.2 above or (bc) a higher amount of Reimbursement of City's Project Review Expenses as described in § 4.4 above, City shall have the right to request--require that Metricom modify this Use Agreement to Right-of-Way Permit and Facility Use Agreement City of[Name of Municipality]::Metricom,Inc. Page 9 of 17 • • incorporate the same or substantially similar superior benefits and such other terms. 5 RELOCATION AND DISPLACEMENT OF RADIOS. Metricom understands and acknowledges that City may require Metricom to relocate one or more of its Radios, and Metricom shall at City's direction relocate such Radios at Metricom's sole cost and expense, whenever City reasonably determines that the relocation is needed for any of the following purposes: (a)if required for the construction, completion, repair, relocation, or maintenance of a City project; (b) because the Radio is interfering with or adversely affecting proper operation of City-owned light poles, traffic signals, or other Municipal Facilities; or (c) to protect or preserve the public health or safety. In any such case, City shall use its--best--reasonable efforts to afford Metricom a reasonably equivalent alternate location with no duty to incur any expenses or cost to City. If Metricom shall fail to relocate any Radios as requested by the City within a reasonable time under the circumstances in accordance with the foregoing provision, City shall be entitled to relocate the Radios at Metricom's sole cost and expense, without further notice to Metricom. To the extent the City has actual knowledge thereof, the City will attempt promptly to inform Metricom of the displacement or removal of any pole on which any Radio is located. 5.1 Relocations at Metricom's Request. In the event Metricom desires to • relocate any Radios from one Municipal Facility to another, Metricom shall so advise City. City will use reasonable its best efforts to accommodate Metricom by making another reasonably equivalent Municipal Facility available for use in accordance with and subject to the terms and conditions of this Use Agreement. 5.2 Damage to Public Right of Way. Whenever the removal or relocation of Radios is required or permitted under this Use Agreement, and such removal or relocation shall cause the Public Right of Way to be damaged, Metricom, at its sole cost and expense, shall promptly repair and return the Public Right of Way in which the Radios are located to a safe and satisfactory condition in accordance with applicable Laws, normal wear and tear excepted. If Metricom does not repair the site as just described, then the City shall have the option, upon fifteen (15) days' prior written notice to Metricom, to perform or cause to be performed such reasonable and necessary work on behalf of Metricom and to charge Metricom for the proposed costs to be incurred or the actual costs incurred by the City at Right-of-Way Permit and Facility Use Agreement City of[Name of Municipality):•Metricom,Inc. Page 10 of 17 City's standard rates. Upon the receipt of a demand for payment by the City, Metricom shall promptly reimburse the City for such costs. 6 INDEMNIFICATION AND WAIVER. Metricom agrees to indemnify, defend, protect, and hold harmless the City, its council members, officers, and employees from and against any and all claims, demands, losses, damages, liabilities, fines, charges, penalties, administrative and judicial proceedings and orders, judgements, 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 Metricom's activities undertaken pursuant to this Use Agreement, 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. The foregoing notwithstanding, Metricom shall defend and indemnify the City, and its officers and employees, even in the case of negligence, unless the allegations allege (a) independent negligence on the part of the City, its officers and employees or (b) a wrongful act or omission on the part of the City or its officers or employees. Metricom shall also defend and indemnify the City, its officers and employees, even in the case of negligence, if the allegations are based on the City's or its officers or employees' negligence or otherwise wrongful act or omission in issuing a permit to Metricom or approving this Use Agreement, or in failing to properly or adequately inspect or enforce compliance with the terms, conditions or purpose of any permit issued to Metricom. 6.1 Waiver of Claims. Metricom waives any and all claims, demands, causes of action, and rights it may assert against the City on account of any loss, damage, or injury to any Radio or any loss or degradation of the Services as a result of any event or occurrence which is beyond the reasonable control of the City or on account of City's exercise of its regulatory or police powers. 6.2 Limitation of City's Liability. The City shall be liable only for the cost of repair to damaged Radios arising from the negligence or willful misconduct of City, its employees, agents, or contractors. 7 INSURANCE. Metricom shall obtain and maintain at all times during the term of this Use Agreement Commercial General Liability insurance and Commercial Automobile Liability insurance protecting Metricom in an amount not less than One Million Dollars ($1,000,000) per occurrence (combined single limit), including bodily injury and property damage, and in an amount not less than One Million Dollars ($1,000,000) annual aggregate for each personal injury liability and products-completed operations. Right-of-Way Permit and Facility Use Agreement City of[Name of Municipality] Metricom,Inc. Page 11 of 17 t • The Commercial General Liability insurance policy shall name the City, its council members, officers, and employees as additional insureds as respects any covered liability arising out of Metricom's performance of work under this Use Agreement. Coverage shall be in an occurrence form and in accordance with the limits and provisions specified herein. Claims-made policies are not acceptable. Such insurance shall not be canceled, nor shall the occurrence or aggregate limits set forth above be reduced, until the City has received at least thirty (30) days' advance written notice of such cancellation or change. Metricom shall be responsible for notifying the City of such change or cancellation. Prior to any five(5)year renewal term, pursuant to Section 2 of this Use Agreement, the City may request and the parties shall bargain in good faith to increase the above minimum insurance amounts, if such an increase is warranted by industry standards or specific identified risk. Such increase, if any, shall not be effective until the commencement of such renewal term. 7.1 Filing of Certificates and Endorsements. Prior to the commencement of any work pursuant to this Use Agreement, Metricom shall file with the City the required original certificate(s) of insurance with endorsements, which shall state the following: (a) the policy number; name of insurance company; name and address of the agent or authorized representative; name and address of insured; project name; policy expiration date; and • specific coverage amounts; (b)that the City shall receive thirty (30) days' prior notice of cancellation; (c) that Metricom's Commercial General Liability insurance policy is primary as respects any other valid or collectible insurance that the City may possess, including any self-insured retentions the City may have; and any other insurance the City does possess shall be considered excess insurance only and shall not be required to contribute with this insurance; and (d)that Metricom's Commercial General Liability insurance policy waives any right of recovery the insurance company may have against the City. The certificate(s) of insurance with endorsements and notices shall be mailed to the City at the address specified in§ 8 below. Right-of-Way Permit and Facility Use Agreement City of[Name of Municipality]::Metricom,Inc. Page 12 of 17 • 4,27.2 Workers' Compensation Insurance. Metricom shall obtain and • maintain at all times during the term of this Use Agreement statutory workers' compensation and employer's liability insurance in an amount not less than One Million Dollars ($1,000,000) and shall furnish the City with a certificate showing proof of such coverage. 7.3 Insurer Criteria. Any insurance provider of Metricom shall be admitted and authorized to do business in the State of Minnesota and shall carry a minimum rating assigned by A.M. Best & Company's Key Rating Guide of "A" Overall and a Financial Size Category of "X" (i.e., a size of $500,000,000 to $750,000,000 based on capital, surplus, and conditional reserves). Insurance policies and certificates issued by non-admitted insurance companies are not acceptable. 7.4 Severability of Interest. Any deductibles or self-insured retentions must be stated on the certificate(s) of insurance, which shall be sent to and approved by the City. "Severability of interest" or "separation of insureds" clauses shall be made a part of the Commercial General Liability and Commercial Automobile Liability policies. 8 NOTICES. All notices which shall or may be given pursuant to this Use Agreement shall be in writing and delivered personally or transmitted (a) through the United • States mail, by registered or certified mail, postage prepaid; (b) by means of prepaid overnight delivery service; or (c) by facsimile or email transmission, if a hard copy of the same is followed by delivery through the U. S. mail or by overnight delivery service as just described, addressed as follows: if to the City: CITY OF[NAME OF MUNICIPALITY] Attn: [NAME OF CONTACT] [ADDRESS] [Name of Municipality], MN [ZIP] if to Metricom: METRICOM,INC. Attn: Network Real Estate 980 University Avenue Los Gatos, CA 95032 Right-of-Way Permit and Facility Use Agreement City of[Name of Municipality] Metricom,Inc. Page 13 of 17 • 1.18.1 Date of Notices; Changing Notice Address. Notices shall be deemed given upon receipt in the case of personal delivery, three (3) days after deposit in the mail, or the next business day in the case of facsimile, email, or overnight delivery. Either party may from time to time designate any other address for this purpose by written notice to the other party delivered in the manner set forth above. 9 TERMINATION. This Use Agreement may be terminated by either party upon forty five (45) days' prior written notice to the other party upon a default of any material covenant or term hereof by the other party,which default is not cured within forty-five (45) days of receipt of written notice of default (or, if such default is not curable within forty-five (45) days, if the defaulting party fails to commence such cure within forty-five (45) days or fails thereafter diligently to prosecute such cure to completion), provided that the grace period for any monetary default shall be ten (10) days from receipt of notice. Except as expressly provided herein, the rights granted under this Use Agreement are irrevocable during the term. 10 ASSIGNMENT. This Use Agreement shall not be assigned by Metricom without the express written consent of the City, which consent shall not be unreasonably withheld, conditioned, or delayed. Notwithstanding the foregoing, the transfer of the rights and obligations of Metricom hereunder to a parent, subsidiary, r financially 10 viable affiliate of Metricom or to any successor-in-interest or entity acquiring all or substantially all of Metricom's outstanding voting stock or assets shall not be deemed an assignment for the purposes of this Use Agreement. 11 MISCELLANEOUS PROVISIONS. The provisions which follow shall apply generally to the obligations of the parties under this Use Agreement. 11.1 Nonexclusive Use. Metricom understands that this Use Agreement does not provide Metricom with exclusive use of the Public Right of Way or any Municipal Facility and that City shall have the right to permit other providers of communications services to install equipment or devices in the Public Right of Way and on Municipal Facilities. City agrees promptly to notify Metricom of the receipt of a proposal for the installation of communications equipment or devices in the Public Right of Way or on Municipal Facilities. In addition, City agrees to advise other providers of communications services of the presence or planned deployment of the Radios in the Public Right of Way and/or on Municipal Facilities. Right-of--Way Permit and Facility Use Agreement City of[Name of Municipality] Metricom,Inc. Page 14 of 17 • • 11.2 Waiver of Breach. The waiver by either party of any breach or violation of any provision of this Use Agreement shall not be deemed to be a waiver or a continuing waiver of any subsequent breach or violation of the same or any other provision of this Use Agreement. 11.3 Severability of Provisions. If any one or more of the provisions of this Use Agreement shall be held by court of competent jurisdiction in a final judicial action to be void, voidable, or unenforceable, such provision(s) shall be deemed severable from the remaining provisions of this Use Agreement and shall not affect the legality, validity, or constitutionality of the remaining portions of this Use Agreement. Notwithstanding the foregoing, the parties agree that if a court or administrative agency of competent jurisdiction should declare a provision(s) of Section 4 of this Use Agreement invalid, then the parties shall each be obligated to negotiate in good faith to amend Section 4 of this Use Agreement and if, after one hundred and eighty (180) days from the commencement of negotiations or such extension thereof that may be agreed by the parties, the parties are unable to reach agreement on amendments hereto, then this Use Agreement may be terminated by either party-Eac-I-pa ereby declares---that---it---would----ha-ve-en-tered---into--#his---1 Tse---Agreement--and----each • declared-illegalT valid-ror-unc©nstitutional. 11.4 Contacting Metricom. Metricom shall be available to the staff employees of any City department having jurisdiction over Metricom's activities twenty-four (24) hours a day, seven (7) days a week, regarding problems or complaints resulting from the attachment, installation, operation, maintenance, or removal of the Radios. The City may contact by telephone the network control center operator at telephone number (800) 873-3468 regarding such problems or complaints. 11.5 Governing Law;Jurisdiction. This Use Agreement shall be governed and construed by and in accordance with the laws of the State of [State of Municipal Entity], without reference to its conflicts of law principles. If suit is brought by a party to this Use Agreement, the parties agree that trial of such action shall be vested exclusively in the state courts of Minnesota, County of [Name of County], or in the United States District Court for the District of Minnesota. Right-of-Way Permit and Facility Use Agreement City of[Name of Municipality]::Metricom,Inc. Page 15 of 17 • 11.6 Attorneys' Fees. Should any dispute arising out of this Use Agreement lead to litigation, the prevailing party shall be entitled to recover its costs of suit up to an amount of Five Thousand Dollars ($5,000.00), including (without limitation) reasonable attorneys' fees. 11.7 Consent Criteria. In any case where the approval or consent of one party hereto is required, requested or otherwise to be given under this Use Agreement, such party shall not unreasonably delay, condition, or withhold its approval or consent. 11.8 Representations and Warranties. Each of the parties to this Agreement represents and warrants that it has the full right, power, legal capacity, and authority to enter into and perform the parties' respective obligations hereunder and that such obligations shall be binding upon such party without the requirement of the approval or consent of any other person or entity in connection herewith, except as provided in § 3.2 above. 11.9 Amendment of Use Agreement. This Use Agreement may not be amended except pursuant to a written instrument signed by both parties. 11.10 Entire Agreement. This Use 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 Use Agreement which are not fully expressed herein. Right-of-Way Permit and Facility Use Agreement Gty of[Name of Municipality J::Metricom,Inc. Page 16 of 17 • i • • In witness whereof, and in order to bind themselves legally to the terms and conditions of this Use Agreement, the duly authorized representatives of the parties have executed this Use Agreement as of the Effective Date. City: CITY OF [NAME OF MUNICIPALITY], a Minnesota municipal corporation By: [name typed] Its: Date: , [Year of Agreement Date] By: [name typed/ Its: Date: , [Year of Agreement Date] • Metricom: METRICOM, INC., a Delaware corporation By: [name typed] Its: Date: , [Year of Agreement Date] Right-of-Way Permit and Facility Use Agreement Ofy of/Name of Municipality]::Metricom,Inc. Page 17of 17 • 41,- F Arden Hills General Account From: Coralie Wilson [cwilson@ctv15.org] Sent: Thursday, March 30, 2000 5:16 PM o: Lynch, Joe; Mornson, Mike; Hanson, Joel; Sarkozy, Steve; Schwerm, Terry; Hoyt, Susan; Getschow, Rick Subject: FW: [members] Metricom This may be of interest to those of you who are negotiating with Metricom. .cor. Original Message From: Julie Fleischer [mailto:Julief@gwmail.plano.gov] Sent: Wednesday, March 29, 2000 9:24 AM To: members@natoa.org Subject: [members] Metricom The City of Plano, Texas is currently negotiating a franchise agreement with Metricom. Until just three weeks ago, we were negotiating based on the initial business plan promoted by Metricom in which the company was operating as a wireless internet service provider that would be dealing one-on-one with individual customers. During a meeting three weeks ago, Metricom advised us that they have completely changed the business plan. They are no longer going to operate as an ISP, but instead will be operating solely as the access provider for the network. Resellers will be purchasing access from Metricom and selling it directly to customers. It is our understanding that Metricom will have no direct interaction whatsoever with customers. We have attempted to obtain information from Metricom with regard to exactly Oow they are going to be receiving revenue from resellers and whether they will have any subsidiaries and/or parent companies from whom they will be receiving revenues. However, Metricom has not been willing to provide us with any information. I have the following questions for the NATOA members: (1) Does anyone have information about what the relationship is between MCI Worldcom and Metricom? It is my understanding that MCI and Vulcan Ventures invested $300,000,000 in Metricom, but I can't find any specific information about that investment. (2) Has anyone seen or does anyone have a copy of the new business plan that Metricom is supposedly operating under? If so, I would appreciate information on and/or a copy of the plan. (3) Has anyone entered into a franchise agreement under the new business plan? ,�,, `J Your assistance is greatly appreciated. �7Z 1 f�' "` Julie M. Fleischer GL- 714 (7 A C C14* Assistant to the City Manager City of Plano P. O. Box 860358 Plano, TX 75086-0358 (972)941-5440 • 1