CR 00-28 R.O.W Permit And Facility Use Agreement
CITY Or::
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February 7, 2000
f.;!OPK1NS
Council Report 2000-28
R.O.W. PERMIT AND
FACILITY USE AGREEMENT
Proposed Action
Staff recommends adoption of the following motion: Move that Council authorize the
mayor and city manaqer, on behalf of the city, to enter into a right-of-way use
aqreement with Metricom, Inc.
This agreement sets in motion a permit process for the installation and maintenance of
wireless internet facilities in Hopkins rights-of-way.
Overview
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Metricom, Inc. approached the City in September 1999 seeking to install its "Ricochet"
wireless internet service in Hopkins rights-of-way. At the outset Metricom stated its
desire to execute metro-wide, uniform agreements with cities that did not reflect favored
status for any particular municipality. City staff suggested Metricom should coordinate
with the Suburban Rate Authority and the League of Minnesota Cities to achieve the
goal of a model agreement. Such a model agreement is in place and Metricom now
formally requests Hopkins to approve a facility use agreement.
Primary Issues to Consider
· Services Provided
· Terms of the agreement
· Recommendation
Supportin~ Information
· Metricom letter of introduction
· R.O.W. Permit and Facility Use Agreement
~es1;:--
Eng ineering Superintendent
Financial Impact: $ Unknown Budgeted: Y/N ~ Source:
Related Documents (CIP, ERP, etc.):
. Notes: Annual compensation of $60 per installed facility to the City of Hopkins
Council Report 2000-28
February 7, 2000
Page 2
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Analysis
. Services provided
Metricom is an internet provider making wireless access available to homes and
businesses via a portable modem under the brand name "Ricochet." These
modems attach to desktop, laptop or any other portable computers and transmit
digital data at high speeds without the typical wired phone connection.
Transmission of data is made possible by a network of small, shoebox-sized radio
receiver/senders placed at strategic locations throughout the City on existing
utility poles or light standards. The "Ricochet" modems send a radio signal
carrying the digital data to the pole mounted radios and these in turn are in
communication with Metricom's central facility which communicates with the
internet. Approximately 5-7 radio units are required per square mile. No digging
is required in streets or boulevards, no underground conduits are involved.
Metricom anticipates providing services by this fall.
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. Terms of the agreement
The City and Metricom effect a nine-year agreement (renewed automatically for
three successive terms of five years each) allowing Metricom use of City right-of-
way and utility poles (where available) for the placement of radio devices.
Proposed location of installations is subject to prior review and approval by the
City. Metricom agrees to obtain permission from third party owners of poles for
placement of radio equipment in public R.O.W. and agrees to provide
documentation of such permission.
Metricom agrees not to interfere with the existence and operation of all public and
private uses in the RO.W. It further agrees to resolve any incidents of radio
interference caused by the presence by its pole-mounted receivers/senders.
Metricom agrees to reimburse the City for R.O.W. management costs on an
annual basis at a rate equal to 1 % of adjusted gross revenues, which amount may
be collected from local subscribers. In addition the City will receive annual
compensation of $60 for the use of each City-owned pole on which facilities are
attached. The City will also receive a maximum of ten free basic service
subscriptions per year.
. Recommendation
Staff and the City's attorney have reviewed the agreement and find it in order. In
light of substantial coordination between Metricom, SRA and LMC in developing
an agreement, in light of minimal impacts on the City's right-of-way I staff
recommends approval of the permit and facility use agreement.
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1260 Mark Street
Bensenville, IL 60106
September 22, 1999
Steve Mielke
City Manager
City of Hopkins
1010 First Street South
Hopkins, MN 553439475
Re: Meeting to introduce Metricom to City
and discuss placement in city right of way.
Please accept this letter and the accompanying brochure as an initial introduction to Metricom
and its innovative service called Ricochet.
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Metricom, Inc. is a publicly traded, wireless Internet access provider headquartered in Los Gatos,
California and with offices in major cities throughout the United States. Metricom's cutting-edge
technology makes wireless Internet access available via portable, palm-sized modems marketed
under the brand name Ricochet. The accompanying brochure describes the service and the
equipment.
The Ricochet modems, which attach to any desktop, laptop, or other portable computer, transmit
digital information at very high speeds. The technology that makes this possible consists of an
innovative network of small, shoebox-sized radios, which are strategically placed on a select
number of utility poles or light standards. No cabling or trenching is required. Information sent
frOIn a computer through a Ricochet modem is transported, in digital form, via these radios using
frequency hopping, spread spectrum technology. Metricom's radios utilize less than one watt of
power and present no health or safety concerns.
The Ricochet wireless data system has been successfully deployed in several major metropolitan
areas, including Seattle, San Francisco, Los Angeles and Washington, D.C., as well as in many
major airports including Minneapolis-St. Paul International. Current users of our service include
our U.S. Congress, major corporations such as Microsoft, Hewlett Packard and 3Com, a variety
of municipal applications, as well as many colleges and universities.
It appears certain that the Internet will take on ever-increasing significance in the way the world,
cOlnmunicates and conducts business. This genesis can only mean that municipalities,
individuals and businesses will increasingly demand convenient, reliable and fast Internet access.
Ricochet technology is poised to help meet such demand.
Telephone:
630.350. /410
FAX:
630.350.74:11
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The provision of wireless Internet access within your community will require the low-impact use
of your municipal streets in order to access a small number of existing light poles. This
Metricom network of radios on light poles will provide users with the ability to transfer and
receive information from virtually anywhere, at any time. For example, Ricochet has enabled
police officers to spend less time in the office doing paperwork and more time in a community
protecting and serving its citizens. It has also enabled a fire department to retrieve, on site and
on-line, the architectural specifications of a burning building, thereby abating potentially
catastrophic threats to a community. To encourage such uses, Metricom provides substantial
discounts on its selVice to municipalities.
Our authorized representatives, Buell Consulting, Inc., will shortly contact you to discuss our
new technology and to request permission to use your public right of way. We encourage you to
review the enclosed materials at your convenience to learn more about the potential benefits of
our service.
Should you have any questions or comments regarding the contents of this letter or the
accompanying enclosure, please feel free to contact me. You may also wish to visit our website
at www.metricom.com.
We look forward to the prospect of providing our innovative new service to your community
during the coming year.
Very truly yours,
METRICOM INC.
OJ~c"""\ Q \:~.,
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{' l"i I /<< ,('
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Kenneth Goldin, Reg'i~al Director
Email address:k2oldin@metricom.com
Direct Telephone: 630.350.7412
KG:jrn
Encl.
Max Thompson
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612~403-7843
HOPKINS
Right-of-Way Permit and Facility Use
Agreement
THIS RIGHT-OF-WAY USE AGREEMENT (this "Use Agreement") is dated as of
(the "Effective Date"), and entered into by and between
the CITY OF HOPKINS, a Minnesota local government unit (the "City"), and
lMEl'RICOM,.. We....- a Delaware corporation (II Metricom").
Recitals
A Metricom owns, maintains, and operates, in accordance with regulations
promulgated by the Federal Communications Commission, a mobile digital data
commnnicattom;-- radio nenvork known as Ricochet@, utilizing Radios (as defined in
91.10 below) and related equipment certified by the Federal Communications
Commission.
B. For purpose of operating Ricochet<ID, Met.ricom wishes to locate, place,
attach, instaIt aperah?, 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 valuablp consideration, the receipt and
Sttffi€iency ef whkh a-re- hereby acknowledged, the parties agree to the following
covenants, terms, and conditions:
1 DEFINITIONS. The follo'-Ving definitions shall apply generally to the provisions of
this Use Agreement
1.1
AdjJt5ud Gross Revemres. fI Adjusted Cross Revenues" means the gross
dollar amount received by MetTicom for its Senrices (as defined in 91.11
below) provided to subscribers with billing addresses in the City.
excluding (i) any utility users' tax, communications tax, or similar tax or
fee; fii} ~ state, or fuderalmxes that have been billed to the subscribers
and separately stated on subscnbers' -bills; and (ill) revenue uncollectible
from subscribers (i.e., bad debts) with billing addresses in the City that
was pre.viousl}r included in Adjusted Gross Revenues,
Right-af-Way Pi'tmit muJ Facility Use Agreeou'11t
City of Hopkins ,; MetricatIC, loc
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1.2
City. "City" means the City of HOPKINS.
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
impgsed by any governmental body (but excluding any utility U8ers' 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, }'egulati~ judicial decisiOl'lSj- rules, tariffs, administrative
orders, certificates, orders, or other requirements of the City or other
governmental agency having joint or several ju risdiction over the parties
to- t:his..Use Agreemen.L
1.6 MdricmI,. ~'Meh'icom" means Metricom, Inc., a corporation duly
organized and existing under the laws of the State of Delaware, and its
lawfuf successors, assigns, and transferees.
1.7 MPUc. /I MPUC" means the Minnesota Public Utility Commission.
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1.8
Mllllicipal Facilities. "Municipal Facilities" means City-owned street
light p01es, ligllting fi-xtul'es, elecb'oliers, or 0ther 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 RigId of Way. "Public Right of Way' means the space in, upon,
above, along, across!, and over the public streets, roads, highways, lanes,
cal'tways, courts, ways, alleys, boulevards, sidewalks, bicycle lanes, and
places, including all public utility easements and public service easements
as the same now or may hf>1e.after exist, that aTe under the jurisdiction of
the City. This term shall not include county, state, or federal rights of way
or any property owned oy any person or entity other Ihan 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 MUm. Smt, 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
Rtrdiu:. "Radid' means the radio equipment whether referred to singly or
collectively, to be installed and"operated by MetTicom hereunder.
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Right-if-WilY P!'Tmi! mid Fruility US~ AguI"l/lellt
City of Hopkills:: Me!ricom, /IlC.
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1.11 Services. JlServic~s" means the mobile digital communications services I
provided through Ricochet@) by Metricom, wIudt services consist
principally of wireless lnlenlet,. 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 lntemet 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 Agreemenr-sl1altbe renewed automatically for three (3) successive terms of
five (5) years each on the same terms and conditions as set forth herein, unIes.~ f'ithef
party notifies the other of its intention not to renew not less than one hundred
eighty (180).calendaniays prior- to commencement of the relevant renewal term.
3 SCOPE OF USE AGREEMENT. Any-and all rights expressly granted in 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 subjf'ct to all deeds, easements, dedications,
conditions, covenants, restrictions, encumbrances, and claims of title of record which
may affect the Public RigJt-t.of Way. Nothing in filis 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.
3.1 Attachment to Municipal Facilities. The City hereby authorizes and
permils Metricom to enter upon the Public Right of Way and to locate,
placer attach, install, operate,. maintain,. remove, reattach, reinstall,
relocate, and replace Radios in or on Municipal Facilities for the purposes
of operating Rieodiet@) and providing Services. In addition, subject to the
provisions of S 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 Attacfunent to Third-Party Property. Subject to obtaming 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,
instaU, operate, maintain, remove, reattach, reinslall, relocate, and replace
Right-of-Way Pf'rtllit mid rncility Use Agrenll("llt
City of Hopk1lI5 :: MI"triCOIII, f,U'.
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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 WayW:i rrw.y be permitted by the public utility company or
property owner, as the case m.ay be for the purposes of operating
Ricochct@ 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,
atno cost or expense to City, in obtaining where necessary the consents of
lhird-party owners of property located in tile Public Right of Way.
No Interference. Metricom in the performance and exercise of its rights
and obligations under this Use Agreement shall not interfere in any
rrUUUler willi ale existence and uperation of any and all public and private
rights of way, sanitary sewers, water mains, storm drains, gas mains,
poles, rerial and underground electrical and telephone wires, electroliers,
cable television, and other information or communications, utility, or
municipal. proper.ty, without the express written approval of the o.""ner or ,
owners at the affected property or properties, except as pemutted by
applicable Laws- 01' tilis- Use A&'eement 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 entl>r mID after the Effective Date with other information or
comm.unications providers and carriers.
3.3.1 -Interference -Resolution. Any ftctual 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 10 assist Merricom in the
l'esoluaen of any- such- inrerfeTent:e dispute at Metricom's sole expense.
eompliance with--Laws. Metricom shall comply with all applicable Laws
in the exercise and perfonnancp of lis rights and obligations under this
Use Agreement The Right-of-Way Manaf;ernent Reimbursement
provided for ing.4-cl below shall be in lieu of all other City fees, with the
exception of any City permits required fOJ" the initial installation of the
Radios. City shall promptly respond to Me tricorn' s filings and shall
otlwrwis€ !;ooP€-m-l€- with Metricom in facilitating the deployment of
RicocheKID in the Public Right of Way in a reasonable and timely manner.
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RJght-oFWlr!J Pumit mm Fm:ility Use Agrument
City of HopkiJlS ;; Metricom, Inc.
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Location and Installation of Radios. The proposed locations and
installation methods of Metricom's planned initial installation of Radios
slutlLbe detenninedsubjed to the reasonable prior t'eview and approval of
the City, promptly after Metricom's review of available street light IDaps
ana prior to deproyment of the ~dios. 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; UTIUTY CHARGES. Metricom shall be solely responsible far the
payment of all lawful Fees in connection with Metricom's performance under this Use
Agreement, in accardance with the terms set forth below.
3.5
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4.1 Right-of:..Wa.y ManagrtnPltt Reimbursement. In .order to reimburse City
for any right-ai-way management costs it may incur during the term .of
fhis Use Agreement foU-owing 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
amnuntequat-to one-percent-r1%) 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
"Mebicom aOO- that sacll- Right-of-Way Management Reimbursement is not a
franchise fee or payment far use of the- Public Right of Way. The
Right-of-Way Management Reimbursement shall be payable for the period
commencing upon the-dam that Services are offered to commercially paying
subscribers within the City using Radios installed pursuant to this Use
Agreement ana 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. WiUlm forty-five (45) days after the termination .of this
USe A"greement,. compensation shall be paid for the period elapsing since the
end of the last calendar year for which compensation has been paid.
Metricom sllall furnish to the City with each payment of compensation
required- by this section a statement executed by an authori7.ro officer of
Metricom or his or her designee, verifying 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 ~ (30) days of discovery of the error or determination of the
correct amount Any overpayment to the City through error or otherwise
shall re-refanded 01'" offset against the next payment due. Acceptance by the
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Righi-if-Way PeTmit ill/d facility Use Agreement
City of HGpkins :: Metricam, flu::_
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City of any payment due under this section shall not be deemed to be a I
waiver by the City of any breach of this Use Agreement occurring prior
theTe~ nor shall the a.ccep1ance by the City of any such payments preclude
the City from later establishing that a larger amount was actually due or
from colfe::ting any bafunce du~ to the City. City may, 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 MetTicom shall, no later than
ninety (90) days after receiving SUell notice, cease making all
compensation payments that would have been payable after such ninety
(90) daynotice-periad: If City requires such a discontinuation of Right-of-
Way Management Reimbursement compensation, the City may then
char~e, on an annual basis, its actual Right-of-Way Management costs
(pursuant m- Minnesola 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-et-Way management costs to the extent such costs exceed
the alID.ual retail value of the service subscriptions faT 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 Uti.1i1y Users- or Communica.tions Tax.
Notwithstanding anything tu the contral)' in this Use Agreement,. if
tile Services are subject to a utility users tax, communications tax,
or other ~lmilA1" tax. or fee which accrues- to the City by operation of
the City's Municipal Code or other applicable law, then the amoWlt
of the Rignf-of-Way Manage~entReimbursementshall be reduced
by the amount of the applicable utility users tax, communications
tax, or such other similar tax or fee.
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4.1.2
Accounting Matters. Merricom shall keep accurate books of
account af its principal office in Los Gams or such other location of
its choosing for the purpose of determining the amounts due to the
City under S 4.1 above. The City may inspect Metricam's books of
account- n.:l<1tivl." to ihP 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-exiPnt necessary to confirm the accural-l' of payments
due under ~ 4.1 above. Alternatively, Metricom will make
available for inspection by the City at MetTicom's office located
closest-- Ie the City, uf*>n thirty (30) days prior written notice, the
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RiflrJ-cf-Way Permif arui Facility Use A~eemeut
City ofHopkilrs.: MetriCOIlf, hie.
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4.2
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4.3
4.4
relevant portions of its bo-oks 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 leams from Metricom to the fullest extent
permitted by Law.
Annual Fee. As compensation for 111€ use of Municipal Facilities,
Metriaun shall pay to the City an annual fee (the "Annual Feel1) in the
amount of Sixty Dollars ($60JXJ) for the use of each Municipal Facility, if
any, upon which a - Radio has been installed pursuant to this Use
Agreement \-'\There light poles or other facilities to be used by Metricom
within the Public Iught of Way are owned by a utility, such annual fee
shall be paid to the appropriate utility and not: to the City. The aggregate
Armual 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- (12y IllOUUll'> 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 Dare. City represents and
covet1:t'l:ftls-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 Dale and continuing on each fifth
(5th) aflflive.ffia:".Y the:reaiter Eluring 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
Us. Department--. of Labor, Bureau of Labor Statistics Consumer
Price Index (All Items, All Consumi'!rs, 1982-1984=100) which
occurred during the previous five-year period for the Midwest
Urban Region Consolidated Metropolitan Statistical Area.
l!lpC'lyidty rhat'gE"fI. . MefTjrorn shall be solely responsible for the payment
of all electrical utility charges.to the applicable utility company based
upon ffie RadIOS" usage of efedricity and applicable tariffs-
Reim."6ursement of City's Project Review Expenses. Memcom shall
reimhu.rse the Cit}r at City's. standard rates. for reasonable attnmcy's fees
and other project review expenses relating to the preparation and review
of ffiis Use Agreement, promptly upon receipt of itemized bills, paid
invoices, and other such documentation as Metrkorn shall reasonably
require, and in a total amount not to exceed One Thousand Dollars
($1,000). The r-eimbutsement provided for in this S 4.4 shall not replace or
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Riglu-if-Way Permit a/ld Fadiity Use Agree/lie/II
City of Hopki1l5 :: MetricolII, hie.
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excuse Metricom from the payment of any applicable permit fee fOT 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 popuI.a.tion) of free Ricochet@ basic
service subscriptions. TIle nwnber of free subscriptions which the City
may recei'\le.. shall be cff'wrmined. in accordance with the City's official
population, as shown on the latest available census data, as follows: (a) for
municipalities with a popuration of less than 100,000, up to a maximum of
ten (10) free subscriptionsi (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
(d) for municipalities of over 500,000, up to a maximum of twenty-five (25)
free- subsuiplivllb; City shall der:.ibl1ate one person who shall be
responsible for ordering and receiving any subscriptions. To take
advantage of this program, the designated individual should contact
Metrieom' B-Ne-hvt:rrk Rettt Esta-te Depttrtment 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.:tlu? expiratWn- f)f 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 stnndard_Ricochet@ terms and conditions of use. City understands
and agrees that modems and equipment required In utilize the
subscriptions and any additional service subscriptions or service options
the City may desire may be obtained from an authorized retailer at market
rares 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 In
resell, distribute, or otherwise permit the use of same by any other person,
excepting a local public entity that provides public service within the
LOtpU/ate bouudaries of the-City (e.g" mmticipal schools, public safety, or
fire departments, etc.). The level of benefits and service provided to City
by MefTicom as "ba<:;ic service" shall not be diminished or reduced during
the-- rel'ftl of this-- Use- Agreement- or renewal thereof or prior to its
cancellation OT tennination, as the case may be.-
4.6
Most-Favored Municipality Clause. Should MefTicom after the parties'
execution and delivery of this Use Agreement enteT inb.:J a right-of-way
pennit and faeHity use agreement with another municipahty of the same
.
Righi-of-Way Pmnit (HId Facility Use AgreetlU'll t
City uf Hopkills ~: Metricom, flu:.
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size or smaller than the City as compared with cities in the Minnesota
counties of AnoM, Carver, Dakota, Hennepin, Ramsey, Scott and
Washington, which agreement contains either (a) a higher Righl:-of Way
Management Reimbursement as described in ~ 4.1 above OT (b) a higher
Annual Fee a5_ described in ~_4.2 above or (c) a higher amount of
Reimbursement of City's Project Review Expenses as described in S 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. Melricom understands and
acknowledges that City may require Metricom to relocate one or more of its Radios,
and Metricom shaltal: 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 ma:intenance- of d City project- or - Mullicipal Facility (in which case
Metricom agrees to work with City to move or relocare suCh Radios for the duration of
City's project, within 30 days of receipt of notice by City); (b) because the Radio is
intetfet-ing-with-City owned- 01' opet'a:tedTtttlID-5)'5~ OT adversely affecting proper
operation of City-owned light poles, traffic signals, or other Municipal Facilities (in
which case Metricom agrees to initiate in~rference resolution analysis for such Radios
within 7 days-Gt-~elpto€nmice by-City); or (c) to-protectot: preselVe the public health
or safety (in which case CHy crews can immediately remove a Radio which poses a real
and immediate physical safety threat and inform Metricom, and in which case
Metricom agrees- to- cnopprflte with City to assist in :resolving valid safety concerns
within 24 hours of receipt of notice by City). In any such Casf', City shall use reasonable
effurts to afford Metrfcom a reasonabfy equivalent alferriate location with no duty to
incur any expenses or cost to City. If Melricom 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 tv relocate the Radios at Memcom'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
lte~ati:mm- at-.Metri~s- Re-quest. In- the event Metricom desires to
relocate any Radios from one Municipal Facili-ty to another, Metricom
shall so advise City. City will use reasonable efforts to accommodate
Me Lricoul by making another reasonably equivalent Mnnicipal Facility
available for use in accordance willi and subject to the terms and
conditions of this Use Agreement
Righl-of-Way Permit mut Facility Use Agreemrnt
City of HopkillS .: Metricom, flue.
rage go! 16
Damage to Public Right of Way. Whenever the removal or relocation of
Radios is required or permitted under this Use Agreement, and such
-rente-val or relocation shalL cause the Public Right of Way or any
Municipal Facility to be dlUll.ftged, Metricom, at its sole cost and expense,
shail promptly repair and return the Public Right of Way or any
Municipal Facility 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
notiCf> In Metricom, to perform or cause to be performed such reasonable
and necessary work on behalfof Metricom and to charge Metricom for the
pro"QDSed costE 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, MelTicom shall promptly reimburse the City for such costs.
&- INDEMNIFICA'IlON ~WMvIDt. MelTicon:ragrees to inde.tIUlify, 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-. judieial- proeeedings- and orde-l'S, judgemenfst and till costs and
expenses incurred in connection therewith, including reasonablE> attorney's fees and
costs of defense (collectively, the "Losses") directly or proximately resulting from
Me tricorn.' s-adivities undertaken pursuant k> 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 conlTactors. The foregoing notwithstanding,
Metricom shall.-defexuLancl innpmnify the City ~ and. its. off1cprs and employees, even in
the case of negligence, unless the allegations allege (a) independent negligence on the
part of the City, ili; officers and empfoyees or (b) a wrongfuract 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 iEsuing a permit to Metricorn or approving this Use Agreement,. or in
failing to properly or adequately inspect or enforce compliance with the terms,
conditionsor-purpose of any pelnlit issued-to Metricolll.
Feb 11 00 08:00a
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Max Thompson
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p. 11
Waiver ot-elaimB: Metrtcam"waives anyamI- all claims, demands, causes
of action, and rights it may assert against the City on account of any loss,
danlage, 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.
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Rig/ri.-of-Way Pa-mit 11M FJlLiJity Use Agreelne1!t
City {)f Hopkifl5 .: MetricQItl, I~,
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Feb 11 00 08:00a
Max Thompson
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p.12
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6.2
Limitation of City's Liability. The City shall be liable only for the cost of I
repair to damaged Radios arising from the negligence or willful
misconductoLCity, iJs employees, agents,. or contractors.
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7 INsURANCE. Metricom shall obminand maintain at all times during the term of this
Use Agreement Commercial General Liability insurance and Commercial Automobile
Liability insUTfU1ce protecting MetTicom in an amounlnot less than One Million Dollars
($1,000,000) per occurre~ (combined- single limit),- including bodily injury and
property damage, and in an amount not less than One Million Dolla.rs ($1,000,000)
annual aggregate for each personal injury liability and products-completed operations.
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 Metdcom's performance of work under this Use Agreement
The inclusion of such parties as additional insureds shall not however, be deemed to
waive any statutory limits on the torlliability at the City. Coverage shall be in an
OCCuutilce-fornrand- in- acrordaJ.lc~ wiflr 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
reeeived atleast-fuHoty f3Ot-days'oova:n€e-wriMen.1lf>tiee-ef 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
parties may in- good-faithba1-gain to lllf:reas€ the above minimum insurance amounts, if
such an increase is warranted by industry-standards. Such increase, if any, shall not be
effective until the commencement of such renewal .tenn. Prior to allY five (5)-year
renewal terD.lr- pursuan.t- lo-Secti.on 2-oL this Use AgrppmPnt, 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 sfu1:1dards 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 pu-rsuant fu fhis USe Agreement, Metricom shall file willi 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 oC- IDe 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
cancellatinn;
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Right--nj-Way Pn-mit and Facility Use Agrean.erlt
City of Hopkill5 :: Metricom, Inc
Paxe lJ of 16
Feb 11 00 08:01a
Max Thompson
612-403-7843
p. 13
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(c) that MetTicom's Commercial General Liability insurance policy l
is primary as respects any other valid or collectible insurance that I
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 Co11lJl1ercial 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 8 below.
7.2 WorL:eu' Cnf"lr~llUtion In,;;n...:anl'("'. Metricom shall obtain and maintain
at all times during the term of this Use Agreement statutory workers'
compensation and employers liability insurance in an amount not less
than One Million Dollars ($1,000,000) and shall fumish the City with a
certJficate showmg proof of such coverage.
Insurer Criteria. Any insurance provider of Metricom shall be admitted
and auffiorizea to do business ~ the StatE of MinnP.SOta 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
$5OtT,OOO,OOO to $75tt,otXt,OOO based on capital, surplus, and conditional
reserves). Insurance policies- and certificates. issued by non-admitted
insurance companies are not acceptable.
7.3
7.4 Severability of Interest. Any dedudibles or self-insured retentions must
be stated-- on- ttre- certificate(s} of insurHI1ce~ 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 E:om.mert:iat Automobile Liability policies.
8NOTlCES. All notices which -shall or may be given pursuant to this Use Agreement
shall be :in writing and delivered personally or trl.UlSmitted (a) through the United
Stales mail, by registered or certified mail, postage prepaid; (b) by means of prepaid
ovemight---delivery serviee:- or fe}-by facstmile or email transmission, if a hard copy of
the same is followed by delivery through lhe U. S. mail or by overnight delivery
service as just described, addressed as follows:
Righl-af-Way ri'Tmil aud Flldlity Us~ Agrwllent
City of Hapki1l5 :: Metricall~ bu:.
Pag/' 120f 16
Feb 11 00 08:02a
Max Thompson
612-403-7843
p. 14
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if to the City:
CITY OF HOPKINS
Attn: City Manager - Steve Mielke
1010 1& 5 tree South
Hopkins, 11N 55343-9475
if to Metricom:
METRlCOM, me.
Atin: Network Real Estate
980 University Avenue
Los Gatos, CA 95032
8.1 Date of Notices; Changing Notice Addre8s. 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
deliveredinthe--matl1.cl set forth-above.
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~ - l'ERMINATION:. l1ris Use- Agreement may be ternrinaiEd by either party upon faTty
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 (Of, if such default is not curable within
forty-five (45) days, if the defaulting parly fails to commence such cure within
forty-five (45) days or fails thereafter diligently to prosecute such cure to completion),
provided that the grace pel'ied fol' any monetary default shall be ten (10) days from
receipt of notice. Except ElS expressly provided herein, the rights granted under this
Use Agreement are irrevocable during the term.
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10 ASSIGNMENT. This Use Agreement shall not be assigned by Metricom without the
expJ'es8 writbm-COHSeHt gf-lhe. 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 Meuicomnr. to. any SU('("Ps''lOr-in-interestor entity acquiring all or substantially all of
MetTicom's outstanding voting sbxk 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 AgreemenL
11.1 - No:ne~luf;llve...U8e-. MetricODl-understands that this Use Agreement does
not provid~__!'Aetricom with exclusive use of the Public Right of Way or
Righl-of-W<<y Permit llIui Facility Use Agreelflellt
City of Hqpkins :: Memcom, filE-
Page 13af16
any Municipal Facility and that City shall have the right to permit ot1.1.er
providers of communications services to install equipment or devices in
the Public Rightof Way: and on Municipal Facilities. City agrees promptly
to notify Metricom of. the receipt of a proposal fOT 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.
. 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.:;- Severa.bility of P"roviBions. If anyone 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 bP deempd 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
fOTegolllg, the- pat Lies 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 geed- faith. to amend. Section 4-of this Use Agreement and it
after one hundred and eighty (180) days from the commencement of
negotiations or such extension thereof that may be agreed by the parties,
the. paTties are. unable to reach agreement on amendmen.ts hereto, then
this Use Agreement may be terminal.ed by either paTty.
Feb 11 DO 08:02a
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11.4
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612-403~7843
p. 15
Contacting Melricom. MetTicom shall be available to the staff employees
of any City department having jurisdiction over Metricom's activities
b.ve~fOUI" (24) hoUIS a da.y, seven (7) daysua week, regarding problems
or complaints resulting from the attachment, installation, operation,
maintenance, or removal of the Radios. .?:'he City may contact by
telephone the network control center operaiDr at telephone number
(BOO) 873-3468 regarding such problems or complaints.
Governing Law; Jurisdiction. This Use Agreement shall be governed and
construed oy and in accordance with the laws of the State of Minnesota,
withoul reference to its conflicts of law principles. U suit is brought by a
party to this Use Agreement,. the parties agree that trial of such action
shall be vested exclusively ill lhe state courts of Minnesota, County of
Right-of-Wll!f Pamit <<lid Facility Use A~eemellt
City of Hopkins :: Metricol/!, IIlC.
Page l41J/16
F@b 11 00 08:03a
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Max Thompson
612-403~7843
p. 16
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
Agreemen~ such party shall not unreasonably delay, condition, or
wifllh6Td its appTOv~ or consent
Representations and Warran.ties. 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 9 3.2 above.
11.9 Amendment of Use Agreement. This Use Agreement may not be
amended except pursuant to a written fusfrument signed by both parties.
11.6
11.7
11.8
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Hennepin, or m the United States District Court for the District of
Minnesota.
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.
11.10 E"nlire 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
(whefiler oraf or written) between or among the parties relating to the
subject matter of this Use Agreemenl which are not fully expressed herein.
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Righl-af-Wrry Permit arm Farility Use AgrMnent
City of Hapkius :' Metricom, Inc
Page 150(16
Feb 11 00 08:04a
Max Thompson
612-403-7843
p.17
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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 exectrl.ed this Use Agreement as of the Effective Date.
City: CITY OF HOPKINS, a .Minnesota municipal corporation
By:
By:
Metricom:
METRICOM;INC., a Delaware corporation
By:
{WI1IU typfrl[
Its:
Dare:
Right-af-WIlTJ Permit and Facility U.e AgriYTtlt!1lt
City of HnpkillS :: MrlricOlll, ItfJ:.
Page 160/16