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HomeMy WebLinkAboutCC RES 00-053 A RESOLUTION APPROVING THE AGREEMENT WITH METRICOM, INC. FOR A RIGHT-OF-WAY PERMIT AND FACILITY USE Meeting Sheet IIIIIIVIIIVIIIVIIIVIIIVIIIIIIIIIII 104816 Box: 31 Folder: RES 2000 Document: CC RES 00-053 A RESOLUTION APPROVING THE AGREEMENT WITH METRICOM, INC. FOR ARIGHT-OF-WAY PERMIT AND FACILITY USE CITY OF ST. ANTHONY RESOLUTION 00-053 A RESOLUTION APPROVING A RIGHT-OF-WAY PERMIT AND FACILITY USE AGREEMENT WITH METRICOM, INC. WHEREAS, Metricom, Inc. is proposing to bring its wireless internet service, called Ricochet, to St. Anthony businesses and residents; and WHEREAS, Metricom, Inc. has obtained an agreement with Northern States Power Company (owner of the poles) to use the light and power poles; and WHEREAS, Metricom, Inc. is requesting use of the City's right-of-ways in order to access the light and power poles; and WHEREAS, the City will benefit by this service by having the choice of a high-speed wireless internet capability. NOW, THEREFORE, BE IT RESOLVED, that the City Council of the City of St. Anthony hereby approves a Right-of-Way Permit and Facility Use Agreement with Metricom, Inc. Adopted this Z "� day of .,u�hc� , 2000. or, ATTEST: City Clerk Reviewed by Administration: CityJnager go a r ST. ANTHONY Right-of-Way Permit and Facility Use Agreement F IS RIGHT-OF-WAY USE AGREEMENT (this "Use Agreement') is dated as of 2 2000 (the "Effective Date"), and entered into by and between the CITY OF ST. ANTHONY, 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, 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 DEFINITIONS. 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) anV utility users' tax, 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. Right-of-Wa v Permit and facility U_w Agreement City of St.Anthony::Metricom 1,7c. Page 1 of 15 1.2 City. "City" means the City of St. Anthony. 1.3 Fee. "Fee" means anv 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 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 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. Right-of-Wa y Permit anti Facility Use Agreement Gt_v of St.Anthonv::Metricom,Inc. Page 2 of 15 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" shalt 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 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, convev, 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. 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 Right-of-Wa v Permit and Facility Use Agreement Gly of St.Anthony::Metricom,Inc. Page 3 of 15 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, zerial and underground electrical and telephone wires, electroliers, cable television, and other 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. 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 Latins 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 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. Right-of-Wa v Permit and facilit v Use Agreement G7v of St.Anthony..-Metricom,Inc. Page 4 of 15 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 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 451h 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 mav, at any time, at City's sole option, 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 Right-of-4V.i v Permit and Facility Use Agree•ment City of St.Anthony::Metricom,Inc. Page 5 of 15 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 Citv 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)), 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. 4.1.1 Reduction of Right-of-Way Management Reimbursement by Amount of Utility Users or Communications Tax. Notwithstanding anything to the contrary in this Use Agreement, if the Services are subject to a utility users tax, 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, communications tax, or such other similar tax or fee. 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 Richt-of-Wr v Permit and Facility Use Ab-rcvment Cit_V of St.Anthony::Metricom,Inc. Page 6 of 15 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) 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 (501) 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 attorneys 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 Metricotn 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. 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 municipalities with a population of between 250,000 and 500,000, up to a maximum of twenty (20) free subscriptions; and Right-of-WaY Permit and Facility Use Agreement City of St.Anthony::Metricom,Inc. Page 7 of 15 (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 § S 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 Cih, 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 (eb., 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 (b) a higher Annual Fee as described in § 4.2 above or (c) a higher amount of Reimbursement of City's Project Review Expenses as described in § 4.4 above, City shall have the right to require that Metricom modify this Use Agreement to 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, Right-of-We v Permit and Facility Use Agreement G'tv of St.Anthony.-.-Metricom,Inc. Page 8 of 15 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 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 anv Radios from one Municipal Facility to another, Metricom shall so advise City. City will use reasonable 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 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 Citv, its council members, officers, employees, agents, or contractors The foregoing notwithstanding, Right-of-Way Permit and Facility Use Agreement City of St.Anthony::Metricom,Inc. Page 9 of 15 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 Citv 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. The Commercial General Liabilih, insurance policy shall name the City, its council members, officers, and emplovees 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 Citv 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 Right-of-Wav Permit and Facility Use Agreement Gt_y of St.Anthony::Metricom,Inc. Page 10 of 15 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 § S below. 7.2 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. Anv 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 & Companys Key Patina 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. Right-of-Wa v Permit and Facility Use Agreement Gly of5t.Anthonv::Metricom,Inc. Page 11 of 15 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 Gty.- CITY OF ST. ANTHONY Attn: City Manager 3301 Silver Lake Road NE St. Anthony, MN 55418-1603 if to Metricom: METRICOM, INC. Attn: Network Real Estate 980 University Avenue Los Gatos, CA 95032 8.1 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, , or financially viable affiliate of Metricom or to any successor-in-interest or entity acquiring all or Right-of-Wj V Permit and Facility Use Agreement City of St.Anthony::Metricom,Inc. Page 12 of 15 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. 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. 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 Right-of-W,v Permit and Facility Use Agreement Gtv of5t.Anthonv::Metricom,Inc. Page 13 of 15 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 Minnesota, 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 Ramsey and Hennepin, or in the United States District Court for the District of Minnesota. 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-W i V Permit and Facility Use Agreement City of St.Anthony::Metricom,Inc. Page 14 of 15 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 ST. ANTHONY, a Minnesota municipal corporation By: U06'--J A L 4Dennisavanaugh Its: Mayor Date: ZkA e- Z1 , 2000 By: fiet�' Michael Aornson Its: City Manager Date: �y(1 e �o , 2000 ATTEST: i Connie Kroeplin City Clerk Date: St l n e a7 2000. Metricom: METRICOM, IN , a D are corporation By: 0 I CK (_ 7 Au et dJ VICE PRESIDENT Its: CORPORATE OPS Date: JUL 10 2000 ----, 2000 Approved As To Form ROW Le epartment By: Dat Right-of-Wap Permit and Facility Use Agreement Citp of St.Anthony::Metricom,Inc. Page 19 of 15