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HomeMy WebLinkAboutR-2000-198 RESOLUTION NO. 2000-198 A RESOLUTION OF THE CITY OF DANIA BEACH, FLORIDA, APPROVING A RIGHTS-OF-WAY USE AND MASTER SITE LICENSE AGREEMENT BETWEEN THE CITY OF DANIA BEACH AND METRICOM, INC. FOR THE USE OF THE CITY'S RIGHTS-OF-WAY TO CONSTRUCT, OPERATE AND MAINTAIN A WIRELESS DIGITAL DATA COMMUNICATIONS NETWORK WITHIN THE CITY; PROVIDING FOR CONFLICTS; FURTHER, PROVIDING FOR AN EFFECTIVE DATE. BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF DANIA BEACH, FLORIDA: Section 1. That the agreement between the City of Dania Beach and Metricom, Inc., which is attached to this Resolution as Exhibit "A", allowing the use of the rights-of-way in the City of Dania Beach for constructing, operating and maintaining a Wireless Digital Data Communications Network ("Communications Network) within the • City, is hereby accepted and the appropriate City officials are hereby authorized to execute same. Section 2. That Metricom, Inc. has paid the City a one-time application fee in the amount of $5,000.00 to reimburse the City for City staffs costs associated with the review and processing of Metricom, Inc.'s application and preparation of the agreement. Section 3. That the City Manager and City Attorney are authorized to make minor revisions to such Rights-of-Way Use and Master Site License Agreement as are deemed necessary and proper for the best interests of the City. Section 4. That all resolutions or parts of resolutions in conflict with this resolution are repealed to the extent of such conflict. G ARES2000\RES-metricom 12/18/2000 1 RESOLUTION NO. 2000-198 Section 5. That this resolution shall be in force and take effect immediately upon its passage and adoption. PASSED AND ADOPTED THIS 12T" DAY OF DECEMBER 2000. CO ISSIONER ATTEST: ROLL CALL: MAYOR MCELYEA - YES VICE-MAYOR BERTINO —YES SHERYL CKHPMAN COMMISSIONER CALI - YES ACTING CI CLERK COMMISSIONER ETLING - YES COMMISSIONER MIKES - YES APPROVED AS TO FOR I ND CORRECTNESS: BY: � � I , �W� TH MAS J. ANSBROI CITY ATTORNEY G:\R E S2000\R ES-metricom 12/18/2000 2 RESOLUTION NO. 2000-198 RIGHTS-OF-WAY USE AND MASTER SITE LICENSE AGREEMENT FOR METRICOM, INC. THIS AGREEMENT, made and entered into this_ day of , 2000, by and between Metricom Inc., a Delaware corporation ("Licensee"), and the City of Dania Beach, Florida (the "City"), (Licensee and the City being collectively referred to herein as the "Parties"). WHEREAS, Licensee has requested the City to authorize the use of the City's Rights-of- Way to construct, operate and maintain a Wireless Digital Data Communications Network ("Communications Network") within the City; and WHEREAS, Licensee seeks to locate, place, attach, install, operate and maintain its Communications Attachments on City Facilities, as well as facilities owned by third-parties, located on the Public Rights-Of-Way, for purposes of operating its Communications Network; and WHEREAS, Florida Statutes and the Charter of the City authorize the City to grant the non-exclusive use and occupancy of Rights-of-Way for placement of a Communications Network, and to adopt rules and regulations regarding such use and occupancy; and ® WHEREAS, the City owns and or controls certain poles, light stands, buildings and other Facilities that may be suitable for the placement of Licensee's Communications Attachments; and WHEREAS, the City is willing to permit, to the extent it may lawfully do so and on the terms hereinafter set forth, the installation of said Communications Attachments to City Facilities, when in its judgement, such use will not interfere with its own service requirements, or of utilities, including considerations of safety and economy; and WHEREAS, the Licensee has agreed to accept the use of the Rights-of-Way in accordance with the terms and conditions of this Agreement. AGREEMENT NOW, THEREFORE, in consideration of the facts stated above and the mutual promises and covenants herein contained,the Parties mutually agree as follows: Article I. Definitions For purposes of this Agreement, the following terms, phrases, words, and their derivatives shall have the meanings set forth in this Section, unless the context clearly indicates Rights-of-Way Use Agreement City of Dania Beach,FL::Metricom,Inc. page 1 of I Dania Beach.doc December 1,2000 that another meaning is intended. Words used in the present tense include the future tense, words in the single number include the plural number, and words in the plural number include the singular. The words "shall and "will" are mandatory, and "may" is permissive. Words not defined shall be given their common and ordinary meaning. A. "Attachment Fee" means the fixed annual fee assessed upon the Licensee, as specified in this Agreement, as compensation for the use of City Facilities for Licensee's Communications Attachments. B. "City Facilities" means City-owned street, light poles, lighting fixtures, buildings, or other City-owned structures, and real property owned by the City in fee that has not been generally dedicated for use as a Public Rights-Of-Way, that may at the discretion of the City be utilized for Licensee's Communications Attachments. C. "Communications Attachments" means an attachment to a City Facility, or facility of a third party, of Licensee's Communications Network radios and all associated equipment to be installed and operated by Licensee hereunder. D. "Gross Annual Revenues" means the annual gross revenues received by Metricom for its Services provided to subscribers with billing addresses in the City, excluding (i) the Rights-of-Way Fee, if any, payable pursuant to §VI.B. et • seq. below and any utility users' tax, communications tax, or similar tax or fee; or (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 Gross Revenues. The sale of Services by Metricom at wholesale rates for the purpose of resale at retail shall not serve to allow Metricom to evade the compensation requirements of Section VI of this Agreement. E. "Permit" means written authorization of City for Licensee to make, or maintain, Communications Attachments to specific City Facilities pursuant to the requirements of the Agreement. F. "Person" means an individual, a corporation, a limited liability company, a general or limited partnership, a sole proprietorship, a joint venture, a business trust, or any other form of business entity or association. G. "Public Rights-of-Way" means the space in, upon, above, along, across, and over the public streets, roads, lanes, courts, ways, alleys, boulevards, sidewalks, bridges, and places, including all public utility easements and dedicated public service easements as the same now or may hereafter exist, that are under the jurisdiction of the City. This term shall not include state, county or federal rights of way or any property owned by any Person other than the City, except as Right-of-Way Use Agreement City of Dania Beach,FL::Metricom,Inc. page 2 of 2 . provided by applicable laws or pursuant to an agreement between the City and any such Person. Such term shall also not include property owned by the City in fee that has not been generally dedicated for use as a public right-of-way. H. "Public Rights-of-Way Use Fee" means an annual fee of 3% of the Licensee's Gross Annual Revenues to be paid by the Licensee for the use and occupancy of the City's Public Rights-of-Way. II. Authority For Use Of Rights-Of-Way And Scope of Agreement A. Subject to the provisions of this Agreement, City hereby grants Licensee a nonexclusive license authorizing Licensee to install and maintain its Communications Network within the Public Rights-Of-Way, and to locate its Communications Attachments on City Facilities, in conformance with all applicable provisions of this Agreement. B. The Licensee shall construct, operate and maintain its Communications Network and all associated facilities in accordance with all applicable federal, state and local laws, including all permit requirements, and fee payments, and all other City codes and ordinances in effect as of the date of this Agreement or hereinafter adopted. The grant of this Agreement does not in anyway impact the continuing authority of the City through the proper exercise of its police powers to adopt and enforce ordinances necessary to provide for the health, safety and welfare of the public, to the extent consistent with applicable state and federal law. The City makes no express or implied representation or warranty regarding its rights to authorize the installation or construction of facilities on any particular segment of Rights-of-Way. The burden and responsibility for making all such determinations in advance of construction or installation shall be entirely upon the Licensee. C. The Licensee agrees to comply with the terms and conditions of the City's Code related to construction, and excavation, which is incorporated herein by reference. D. Licensee and City agree to be bound by all provisions of this Agreement and of the Permit(s) issued pursuant to this Agreement. E. Notwithstanding section I1.13, the Parties agree that with respect to the use of City Facilities for the placement of Licensee's Communications Attachments, that the City is acting in its proprietary capacity. Right-of-Way Use Agreement City of Dania Beach,FL::Metricom,Inc. page 3 of 3 F. Subject to obtaining the permission of the owner(s) of the affected property, the City hereby authorizes and permits Licensee to enter upon the Public Rights-of- Way and to attach, install, operate, maintain, remove, reattach, reinstall, relocate, and replace such number of Communications Attachments in or on poles or other structures owned by public utility companies or other property owners located within the Public Rights-of-Way as may be permitted by the public utility company or property owner, as the case may be. Licensee shall furnish to the City documentation of such permission from the individual utility or property owner responsible. City agrees to cooperate with Licensee, at no cost or expense to City, in obtaining where necessary the consents of third-party owners of property located in the Public Rights-of-Way. By agreeing to cooperate, the City is indicating its willingness to indicate its approval of the use of the Public Rights- Of-Way. The City is not expected to expend substantive staff time in providing this cooperation. G. Licensee in the performance and exercise of its rights and obligations under this 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, cable television, traffic signalization, and other existing or future telecommunications, 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 Agreement. All construction and maintenance by Licensee or its subcontractors shall be performed in accordance with industry standards. Licensee will correct any interference problems attributed to its Communications Network and associated equipment within forty-eight (48) hours of notification by the City; provided, however, that in cases of emergency or immediate threat to public safety, as determined in the sole discretion of the City, the City may shut down any Licensee facilities and shall immediately notify Licensee of the action taken. H. Licensee shall comply with all applicable Laws in the exercise and performance of its rights and obligations under this Use Agreement. I. Upon the completion of installation, Licensee promptly shall furnish to the City Engineer suitable documentation showing the exact location of its Communications Attachments located in the Public Rights-of-Way. J. Licensee represents and warrants that its use of the Public Rights-of-Way and City Facilities, and its installation of Communications Attachments as provided herein, will not introduce or generate any hazardous substance (as defined under any applicable state or federal law), and that it will not store or dispose in the Public Rights-of-Way or City Facilities, nor transport to or over the Public Rights-of- Way or City Facilities any hazardous substance (as defined under any applicable state or federal law). Right-of-Way Use Agreement City of Dania Beach,FL::Metricom,Inc. page 4 of 4 K. The parties agree that City will issue a Permit(s) to Licensee for the use of City Facilities only when City determines, in its sole judgment, that (i) it has sufficient capacity to accommodate the requested Communications Attachments, (ii) Licensee meets all requirements set forth in this Agreement, and (iii) such Permit(s) comply with all applicable safety, aesthetics, construction standards, and specifications, as well as all other applicable City codes, ordinances and requirements. L. No use, however lengthy, of any City Facilities, and no payment of any fees, charges or other compensation required under this Agreement, shall create or vest in Licensee any easements or other ownership or property rights of any nature. After issuance of any Permit, Licensee shall be and remain a mere licensee. Neither this Agreement, nor any Permit granted under this Agreement, shall constitute an assignment of any of City's rights to the City Facilities. M. Nothing in this Agreement shall be construed as granting Licensee any right to attach Licensee's Communications Attachments to any specific City Facilities or to compel City to grant Licensee the right to attach to any specific City Facilities. N. Licensee is obligated to provide the City with proof that it has obtained all necessary certification, permitting, and franchising required from Federal and state authorities prior to making any Attachments. O. The parties agree that this Agreement does not in any way limit City's right to locate, operate and maintain its Facilities in the manner that it believes will best enable it to fulfill its own requirements. P. Nothing in this Agreement shall be construed to require City to install, retain, extend, or maintain any Facilities for use by the Licensee when such Facility is not needed for City's own requirements. Q. Nothing in this Agreement shall limit, restrict, or prohibit City from fulfilling any agreement or arrangement regarding the use of City Facilities into which City has previously entered, or may enter in the future, with others licensees not parties to this Agreement. R. Nothing in this Agreement shall be construed to require City to allow Licensee to use City Facilities after the termination of this Agreement. S. Licensee agrees that this Agreement is limited to the uses specifically stated above in the Recitals and any other use shall be considered a breach of this Agreement. • Right-of-Way Use Agreement City of Dania Beach,FL::Metricom,Inc. page 5 of 5 • III. Procedure For Making, Relocating and Misplacing Attachments A. Except in cases of emergency, Licensee, before locating, rearranging or removing its Communications Attachments, or performing any work in the Rights-of-Way, shall make application and receive a Permit or approval from the City. An individual Permit, if necessary, may cover between 1 and 25 Communications Attachments. B. The method and location of Communications Attachment installation on City Facilities must first be approved by the City Engineer. As part of the Permit application Licensee shall furnish the City Engineer with a construction drawing indicating the location of and specifying the type of Communications Attachment to be installed with a brief engineering analysis and proposed target date for completion of the installation. The Permit application shall contain a signed certification from an engineer registered in the state of Florida with respect to engineering analysis. C. The City shall cooperate with Licensee in identifying and evaluating possible City Facilities available for locating Licensee's Communications Attachments, including the furnishing of available street light and other property maps at Licensee's cost. The Parties agree to meet at least annually to discuss forthcoming projects and installations with the City. D. Notwithstanding any other remedies or compensation available to City pursuant to this Agreement, if through an inventory or other means, City discovers that Licensee has made Communications Attachments on City Facilities without first obtaining a Permit from City, the Licensee shall pay an Attachment Fee rate for such Attachments that is equal to three (3) times the applicable rate specified under this Agreement in effect at the time the Attachment is discovered within the applicable reporting period. After the payment of such fee, if the City elects to allow the continued use of such Attachment the Licensee shall include the Attachment in its calculation of yearly fees for the remainder of the Agreement. E. 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 determines that the relocation is needed for any of the following purposes: (a) for the construction, completion, repair, relocation, or maintenance of a City project, or. construction that the City deems to be in the public interest; (b) because the Radio is interfering with or adversely affecting proper operation of City-owned light poles, traffic signals, or other Municipal Facilities; (c) for the public health or safety; or (d) if the City removes, relocates, or replaces City Facilities on which Metricom's Communication Attachments are located. In any such case, City shall use its best Right-of-Way Use Agreement City of Dania Beach,FL::Metricom,Inc. page 6 of 6 efforts to afford Metricom a reasonably equivalent alternate location. If Metricom shall fail to relocate any Radios as requested by the City within a reasonable time, but in no event greater than ten (10) days, 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. F. In the event Metricom desires to relocate any Communication Attachments from one City Facility to another, Metricom shall so advise City. City will attempt to accommodate Metricom, where practical, make another reasonably equivalent City Facility available for use in accordance with and subject to the terms and conditions of this License Agreement. G. Whenever the removal or relocation of Radios is required or permitted under this License Agreement, and such removal or relocation shall cause the Municipal Rights-of- Way to be damaged, Metricom, at its sole cost and expense, shall promptly repair and return the Municipal Rights-of-Way in which the Communication Attachments are located to the condition they were prior to Metricom's use thereof, normal wear and tear excepted, in accordance with applicable Laws. 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. IV. 'TERM This License shall be effective as of the Effective Date and shall extend for a term of five (5) years commencing on the Installation Date, unless it is earlier terminated by either party in accordance with the provisions herein. The term of this License Agreement may be renewed for three (3) successive terms of five (5) years each, on the same terms and conditions as set forth herein, upon approval by the City. Metricom shall request approval for a renewal term at least ninety (90) days prior to expiration of the then effective term, and the City shall determine if such approval is granted at least thirty (30) days prior to the expiration of the then current term. Such approval shall be deemed granted unless the City notifies Metricom in writing, at least thirty (30) days prior to expiration of the then current term, that its application has been rejected. Metricom agrees this License shall be subject to future City ordinances, rules or regulations that may be adopted by the City consistent with state or federal law. Right-of-Way Use Agreement City of Dania Beach,FL::Metricom,Inc. page 7 of 7 V. TRANSFER OF OWNERSHIP A. This Agreement shall not be assigned by Licensee 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 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 or transfer for the purposes of this Use Agreement, provided that (i) any such transferee will have a financial strength after the proposed transfer at least equal to that of Metricom prior to the transfer, (ii) any such transferee assumes all the obligations of Metricom hereunder, and (iii) Metricom shall not be released from the obligations of this Use Agreement by virtue of such transfer. Metricom shall give to the City thirty (30) days' prior written notice of any proposed transfer for which notice is required hereunder, and the City's consent shall be deemed approved unless the City objects in writing within such thirty-day period. In the case of any proposed transfer for which the City's consent is required hereunder, Metricom agrees to reimburse the City for its reasonable expenses incurred in reviewing such transfer proposal. VI. COMPENSATION Licensee agrees to pay the City the following compensation. A. Application/Administrative Fee. Licensee has paid the City the appropriate fee for the review, evaluation, administration, processing and negotiation of this agreement. B. Public Rights-of-Way Use Fees. As consideration for Licensee's entry upon and deployment of its Communications Network within the City's Public Rights-of- Way, Licensee shall pay to the City, on an annual basis, an amount equal to three percent (3%) of Licensee's Gross Annual Revenues from the use of its Communications Network as defined herein. 1. The compensation provided under this section shall be payable for the period commencing upon the date that Licensee first provides Services to commercially paying subscribers within the City using the Communications Network installed pursuant to this Agreement and ending on the date of termination of this Agreement, and shall be due on or before the 45" day after the end of each calendar year or fraction thereof. Within forty-five (45) days after the termination of this Agreement, compensation shall be paid for the period elapsing since the end of the last calendar year for which compensation has been paid. Right-of-Way Use Agreement City of Dania Beach,FL::Metricom,Inc. page 8 of 8 2. Licensee shall furnish to the City with each payment of compensation required by this section a statement, executed by an authorized officer of Licensee showing the amount of Gross Annual Revenues for the period covered by the payment. 3. Notwithstanding anything to the contrary in this Agreement,the amount of the Public Rights-of-Way Use Fee shall be reduced by the amount of any applicable local tax, fee, or charge imposed upon Licensee solely by virtue of its status as a communications provider. 4. Licensee shall keep accurate books of account at its principal office or such other location of its choosing for the purpose of determining the amounts due to the City under this section. The City may inspect Licensee's books of account relative to the City at any time during regular business hours on ten (10) business 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 this section. The City agrees to hold in confidence any non-public information it learns from Licensee to the fullest extent permitted by Law. C. Attachment Fee. As compensation for the use of City Facilities, Licensee agrees to pay to the City an annual Attachment Fee in the amount of Sixty Dollars ($60.00) per Communication Attachment to City Facility upon which a Communications Attachment has been installed pursuant to this Agreement. 1. The aggregate Annual Attachment Fee with respect to each year of the term shall be an amount equal to the number of Licensee's Communications Attachments installed on City Facilities during the preceding twelve (12) months multiplied by the Attachment Fee, prorated as appropriate, and shall be due and payable not later than forty-five (45) days after each anniversary of the Agreement. All Attachments made between October 1 and March 31 of any given year shall be subject to the then current full annual Attachment Fee, all Attachments made between April 1 and September 30 of any given year shall be subject to a fee equal to one half (1/2) of the then current annual Attachment Fee. Provided, however, that after the initial year of attachment, in all succeeding years all individual Attachments shall be charged the full annual Attachment Fee irrespective of the actual calendar date of the specific Attachment. 2. Effective commencing on the third (3rd) anniversary of the Agreement and continuing on each successive three year period thereafter during the term of the Agreement, including subsequent renewals, the Attachment Fee shall be the greater of$60 or the amount of such rate if annually adjusted by a percentage amount equal to the percentage change in the U.S. Right-of-Way Use Agreement City of Dania Beach,FL::Metricom,Inc. page 9 of 9 Department of Labor, Bureau of Labor Statistics Consumer Price Index (All Items, All Consumers, 1982-1984=100) which occurred during the previous three-year period for the Urban Consolidated Metropolitan Statistical Area for Florida. D. Payments. Licensee shall send all payments payable hereunder, to: City Manager City of Dania Beach 100 West Dania Beach Boulevard Dania Beach, FL 33004 E. Electricity Charges. Licensee shall be solely responsible for the payment of all electrical utility charges to the applicable utility company based upon the Licensee's Communications Attachment's usage of electricity and applicable tariffs; and shall remit to the City any additional electric charges incurred by the City for the use of independently metered City Facilities. The City does not hereby guarantee a supply of electricity for use by Metricom on any City Facility sufficient to operate the Radios. F. Municipal Access Program. In consideration of City's execution and delivery of this Use Agreement, City shall have the right throughout the term of this Use Agreement to receive up to four (4) free Ricochet® Internet Access subscriptions. These subscriptions allow for Internet access, e-mail and news. LAN access, dial-in Internet access, and other services will not be provided by Metricom but may be obtained through an authorized Ricochet® service provider, at the City's expense. 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 Local Market Manager. 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 Rightsof-Way, whichever is shorter. City's use of the subscriptions shall be subject to the standard Ricochet® terms and conditions of use or to those of the chosen retailer of the Ricochet® services through whom the City obtains service. 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 will need to 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.). 0 Right-of-Way Use Agreement City of Dania Beach,FL::Metricom,Inc. page 10 of 10 G. Prior to commencement of any work under this Agreement, Licensee shall post a bond with the City, substantially in the form attached hereto as Exhibit A entitled Surety-Bond, in the amount of Two Thousand Five Hundred Dollars ($2,500), or such other comparable security instrument as may be approved by the City's attorney or risk manager, securing the faithful performance by Licensee of all of the work, construction, installation, and removals required to be performed by Licensee under the Agreement within the time periods set forth herein. H. If at any time it is determined that the fees and compensation assessed under this Agreement are not enforceable under applicable law, it is understood and agreed that all such compensation was a material part of this Agreement, and therefore the parties shall enter into good faith negotiations to determine a new fee structure that is consistent with applicable law. 1. The Licensee shall be responsible for all costs borne by the City that are directly associated with its installation, maintenance, repair and replacement of its Communications Attachments within the Rights-of-Way, or on City Facilities that are not otherwise accounted for as part of the Permit fee established pursuant to the City Code. All such costs shall be itemized and the City's books and records related to these costs shall be made available upon request to the Licensee. Licensee shall be responsible for its own costs incurred removing or relocating its Communications Network facilities when required by the City due to City requirements relating to maintenance and use of the Rights-of-Way for City purposes. VII. ACCEPTANCE This Agreement shall be accepted by the Licensee within thirty (30) days of enactment by the City Commission and any necessary publication. Licensee's acceptance shall be in writing and by delivery of all payments, insurance certificates, applications, acceptance fees, and performance of other requirements relating to commencement of construction as set forth in this Agreement. VIII. CONFIDENTIAL INFORMATION To the extent allowed by Florida law, if requested each Party shall preserve the other Party's information obtained in the course of the Licensee's use of the Rights-of-Way and/or City Facilities hereunder as confidential, and with the same degree of care in protecting its own confidential or proprietary information, however, in no event less than reasonable care. The obligations under this Article shall survive termination of this Agreement. IX. INDEMNIFICATION Right-of-Way Use Agreement City of Dania Beach,FL::Metricom,Inc. page 11 of 11 The Licensee shall indemnify, hold harmless, and defend the City, its officers, boards, commissions, agents, and employees from and against any and all lawsuits, claims, causes of action, liability, demands, damages, disability, losses, and expenses, including reasonable attorneys' fees, resulting or in any manner arising from the action or inaction of the Licensee in constructing, operating, maintaining, repairing, or removing any of its facilities in the City, or in exercising or failing to exercise any right or privilege granted by this Agreement except where such claim or loss arises from the negligence or willful misconduct of the City, its officers, agents, boards, commissions or subcontractors. X. INSURANCE During the term of this Agreement, the Licensee shall obtain and maintain at the Licensee's sole expense, with financially reputable insurers which are licensed to do business in all jurisdictions where any work is performed, naming the City as additional insured, not less than the following insurance: A. Workers' compensation as provided for under any worker's compensation or similar law in the jurisdiction where any work is performed with an employer's liability limit of not less than $500,000 per accident. B. Commercial general liability, including coverage for contractual liability and products completed operations liability, with a limit of not less than $2,000,000 combined single limit per occurrence for bodily injury, personal injury, and property damage liability, naming the City as an additional insured. C. Licensee shall, as material condition of this Agreement, prior of the commencement of any work and prior to any renewal thereof, deliver to the City a certificate of insurance, satisfactory in form and content to the City, evidencing that the above insurance is in force and will not be cancelled or materially altered without first giving the City thirty (30) days prior written notice. D. Nothing contained in this Agreement shall limit the Licensee's liability to the City to the limits of insurance certified or carried. XI. 'TAXES The Licensee shall be fully responsible for the payment of all ad valorem, property, use, and other taxes, including any additional taxes arising out of its use of City Facilities. XII. MISCELLANEOUS A. This Agreement, together with all Exhibits, shall constitute the entire Agreement and no negotiations or discussions prior to execution shall be of any effect. Right-of-Way Use Agreement City of Dania Beach,FL::Metricom,Inc. page 12 of 12 B. The invalidity in whole or in part of any provision shall not affect the validity of any other provision. C. The right and remedies of the Parties shall be cumulative and in addition to any other rights and remedies provided by law or equity. A waiver of a breach of any provision thereof shall not constitute a waiver of any other breach. The laws of the State of Florida shall govern this Agreement. D. Should Metricom after the parties' execution and delivery of this Agreement enter into an attachment agreement with another municipality, located within Broward County, Florida equivalent in population or size to City, which when compared to all terms of such agreement, are more beneficial to said municipality than are contained within this Agreement, then City shall have the right to request that Metricom modify this Agreement, and Metricom shall be obligated to incorporate the same or more beneficial benefits and such other terms upon approval of the City Commission. E. Notices shall be in writing, mailed certified with return receipt requested, effective upon receipt and sent to: Licensee: METRICOM, INC. 333 West Julian Street San Jose, California 95110 Attn: Network Real Estate The City: CITY OF DANIA BEACH City Manager 100 West Dania Beach Boulevard Dania Beach, Florida 33004 With a copy to: City Attorney 100 West Dania Beach Boulevard Dania Beach, FL 33004 or to replacement addresses that may be later designed in writing. Right-of-Way Use Agreement City of Dania Beach,FL::Metricom,Inc. page 13 of 13 IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the day and year below written, but effective as of the day and year first set forth above. THE CITY OF DANIA BEACH, FLORIDA METRICOM, INC. . I "- -�g By: ,,_ _..: _ By: Name:—Charles K. cEly6d Name: Title: Mayor Title: By: k Date: Michael mit , City Manager Date: Attested o: By: heryl Chapman, cting City Itlerk Approved as to form an legal sufficiency By: Thomas sbro;City Attorney STATE OF FLORIDA ) ss. COUNTY OF BROWARD ) On this 11 day of Charles K. McElyea, Mayor of the City of Dania Beach executed the foregoing instrument. IN TESTIMONY WHEREOF I have hereunto set my hand and affixed my official seal the da d y res ����``�{{{{M.1G 11�'Nk/ Issto y %N. tary Public STATE OF COUNTY OF �L oyF ded tbN�• ���`� ///,z/C On this _ day of , Metricom, Inc. executed the foregoing instrument. IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my official seal the day and year aforesaid. Notary Public Right-of-Way Use Agreement City of Dania Beach,FL::Metricom,Inc. page 14 of 16 EXHIBIT A Bond Number: SURETY BOND KNOW ALL MEN BY THESE PRESENTS: That METRICOM, INC. as Principal, and , incorporated under the laws of the State of , and authorized to execute bonds and undertakings as sole surety, are held and firmly bound unto , as Obligee, in the sum of ($ ); for the payment thereof, well truly to be made, said Principal and Surety bind themselves, their administrators, successors and assigns, jointly and severally, firmly by these presents. The condition of the foregoing obligation is such that: WHEREAS, the above bounden Principal is about to enter into a certain agreement with the Obligee for the following: , ("Agreement") the award of which said Agreement was made to the Principal by the Obligee, on NOW THEREFORE, if the Principal shall well, truly and faithfully perform its duties, all the undertakings, covenants, terms, conditions, and provisions of said Agreement during the original term thereof, and any extensions thereof which may be granted by the Obligee, with or without notice to the Surety, and if he shall satisfy all claims and demands incurred under such agreement, and shall fully indemnify and save harmless the Obligee from all costs and damages which it may suffer by reason of failure to do so, and shall reimburse and repay the Obligee all outlay and expenses which the Obligee may incur in making good any default, then this obligation shall be void; otherwise to remain in full force and effect. PROVIDED, FURTHER, that the said Surety, for value received, hereby stipulates and agrees that no change, extension of time, alteration or addition to the terms of the Agreement or to the work to be performed thereunder or the specifications accompanying the same shall in any way affect its obligation on this bond, and it does hereby waive notice of any such change, extension of time, alteration or addition to the terms of the agreement or to the work or to the specifications. PROVIDED, HOWEVER, this bond is issued subject to the following express conditions: Right-of-Way Use Agreement City of Dania Beach,FL::Metricom,Inc. page 15 of 15 1. This bond shall be deemed continuous in form and shall remain in full force and effect until either the Principal's obligations under the Agreement are satisfactorily completed or the bond is cancelled by the Surety, after which all liability ceases except as to any liability incurred or accrued prior to such satisfactory completion or cancellation. 2. The aggregate liability of the Surety hereunder on all claims whatsoever shall not exceed the penal sum of this bond in any event. 3. The surety reserves the right to withdraw as surety from this bond, except as to any liability incurred or accrued, and may do so upon giving the Obligee sixty (60) days written notice. SIGNED AND SEALED this day of , 19 PRINCIPAL SURETY (Type Company Name) By: By: Title: Title: By: Address: Telephone: (Affix Corporate Seals) (Attach Acknowledgments of both Principal and Surety signatures) Right-of-Way Use Agreement City of Dania Beach,FL.:Metricom,Inc. page 16 of 16 Memo To: Mayor,City Commission,and City Manager From: Gary Resnick,Office of the City Attorney Date: December 1,2000 Re: RIGHTS-OF-WAY USE AND MASTER SITE LICENSE AGREEMENT FOR METRICOM,INC. Metricom provides wireless Internet services for use mostly with laptop computers. To be able to provide this service, Metricom must have transmission equipment, typically radios, installed on utility poles throughout the areas to be served. This Agreement allows Metricom to install and operate its communications attachments on City facilities and in the City's rights-of-way. The Agreement has been revised pursuant to discussion at prior Commission meetings.I Significant provisions include: o Installation Requirements: Metricom must obtain approval of the City Engineer and a City permit to install equipment on City facilities and may not interfere with existing utilities. For utility poles not owned by the City, Metricom must obtain the owner's consent. The City is not obligated to make utility poles available nor is it obligated to ensure such poles have electricity. The City may require Metricom to relocate or to remove its equipment at its own costs. ® © Term: The agreement is 5 years with three successive 5-year renewals, upon approval of the City. The agreement cannot be assigned or transferred without the City's consent. © Compensation: Metricom has paid $5,000 to reimburse the City for the review and processing of its application and preparation of this agreement. For use of the rights-of-way, Metricom will pay the City three percent (3%) of Gross Revenues — this reflects an increase from 1% contained in the initial Agreement. For City facilities, Metricom will pay a $60 per year attachment fee that may be increased beginning with the third year of the agreement and on each successive 3-year period thereafter by the percentage increase in CPI. m Municipal Access Program: Metricom will give the City four(4)free Ricochet®Internet Access subscriptions. These allow for Internet access, e-mail and news. © Indemnification,Insurance, and Bond: Metricom will indemnify the City for all claims and must maintain appropriate insurance. Prior to commencement of any work, Metricom must post a bond of$2,500 to guarantee compliance with construction and installation requirements. ® "Favored nation" status: Metricom guaranteed that its Agreement with the City will be at least as beneficial as agreements with other Broward County cities of equivalent size or population. cc: Thomas Ansbro,Esq. ' Language revisions pursuant to prior Commission meetings include: (1)Section VI C 1.,the Attachment fee section, last sentence of subsection(1): inserted"annual"between"full"and"Attachment Fee"; Section XII D, inserted"and Metricom shall be obligated."