HomeMy WebLinkAboutContracts & Agreements_84-1999_CCv0001.pdf METE ICOM
ROW AGREEMENT SUMMARY FORM
rill—
AB to each item and enter information. Whencompleted, do a '"SAVE AS"and name it a regular Microsoft
cel Workbook(,xls)file name, (Le, name of your jurisdiction)and email to your AA. When emailed, clear file li
lfrom screen and reopen 04- ROW AGREEMENT SUMMARY FORM TEMPLATE.xlt file (.xlt is the extension
for'template')to begin entering the next jurisdiction Thanks.
Document Submitted By: Richard Bartoccini Date: 8130/99
Market Jurisdiction/Company
Riverside/San Bernardino Redlands
Business Terms Summary
Agreement Type: 0 Metrimm's ❑Other Party's Pole Rental Rate: $ 60.00 per Pole per year
Agreement grants right to locate on jurisidiction-owned poles? x Yes No
Agreement grants right to locate on third-party-owned poles? x Yes No
Franchise Fee 5' % x Metricom Standard Non-Standard
Pale Rent Comments:
SCE awned poles only
ROW/Franchise Fee:
Five Percent, 5%
Other Fees:
Business License, Encroachment permit
Administrative Reimbursement? x Yes No
Description:
Actual costs
Initial Term(Yrs.): 5 Number of Renewal Terms: 2 Renewal Duration(s): 5
04-ROW AGREEMENT SUMMARY FORM TEMPLATE.XLT Pagel of 2 8/31/99 Revised 10/5/98(scale)
METRI COM
ROW AGREEMENT SUMMARY FORM - PAGE 2
Other Noteworthy Items (refer to Description below for explanation of non-standard items):
Termination: x Metricom Standard Non-Standard
Assignment: x Metricom Standard Non-Standard
Most Favored Nation: x Metricom Standard Non-Standard N/A
Insurance: _x Metricom Standard Insurance Company Approved
Indemnity x Metricom Standard Non-Standard
................................................................................................................................................................................................ ..........................................................................................
Security Required: x Yes No Amount: $ 7500.00
,Description: Bond
Other Noteworthy Items Description (Provide page and section of the agreement.):
None
I
Pole Ownership/Electricity Description:
SCE owned poles only. SCE power
04-ROW AGREEMENT SUMMARY FORM TEMPLATE.XLT Page 2 of 2 8/31/99 Revised 10/6/98(scole)
. 'Received: 8/31 /99 12:21PM; 510 845 7135 -> METRICOM; Page 2
Aur, 31 99 12: 05p Robert L. DELSMAN (510) 845-7135 p. 2
Attachment Permit Agreement
THIS ATTACHMENT PERMIT AGREEMENT(the "Permit") is dated as of September 21,
1999, and entered into by and between the CITY OF REDLANDS, a California municipal
corporation(the "City"), and METRICOM,INC., a Delaware corporation("Metricom").
Recitals
A. Under California law the City has the right and power to regulate the time, location, and
manner of attachment, installation, operation, and maintenance of wireless digital
communications radios in the Public Way within the limits of the City.
B. Metricom wishes to attach,install,operate,and maintain a wireless digital communications
radio network on facilities located in the Public Way for purposes of operating its Ricochett
wireless digital communications radio network(the "Network").
Agreement
Now,therefore, for good and valuable consideration,the receipt and sufficiency of which
are hereby acknowledged,the parties agree to the following covenants, terms,and conditions:
1 DEFINmoNs. The following definitions shall apply generally to the provisions of this
agreement:
1.1 Agency. "Agency" means any governmental or quasi-governmental agency other
than the City, including the FCC and the PUC(as such terms are defined in §§ 1.4 and 1.9
below).
1.2 City. "City" means the City of Redlands.
1.3 Effective Date. "Effective Date" means the latest to occur of(a)the date on which
this Permit,as finally approved by the City Council of Redlands,is executed by the City and
delivered to Metricom; (b)the date on which all permits required hereunder for deployment
of the Radios is issued by the City; or(c)the date on which Metricom hangs its first Radio
as provided below.
1.4 FCC. "FCC" means the Federal Communications Commission.
1.5 Fee. "Fee" means any assessment, license, charge, fee, imposition, tax (but
excluding any utility users' tax or franchise fees),or levy of general application to Persons
doing business in the City lawfully imposed by any governmental body.
Telecommunications Attachment Permit Agreement
City of Redlands::Metricom,Inc,
page I of 15
metricomagreementl[rwg07sc05apa98J 412311999
I Received: 8/31199 12:22PM; 510 845 7135 -> METRICOM; Page 3
Rug 31 99 12: 06p Robert L. DELSMAN (510) 845-7135 p. 3
1.6 Gross Revenues. "Gross Revenues" means the gross dollar amount accrued on
Metricorn's books for Services provided to its customers with billing addresses in the City,
excluding(i)the Franchise Fee,if any,payable pursuant to§4 et seq. below;(ii)local,state,
or federal taxes collected by Metricom 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.
1.7 Laws. "Laws" means any and all statutes, constitutions, ordinances, resolutions,
regulations,judicial decisions, rules, tariffs, administrative orders, certificates, orders, or
other requirements of the City or other governmental agency having joint or several
jurisdiction over the parties to this Permit, in effect either at the time of execution of this
Permit or at any time during the presence of Radios in the Public Way.
1.8 Metricom. "Metricom" means Metricom, Inc., a corporation duty organized and
existing under the laws of the State of Delaware, and its lawful successors, assigns, and
transferees.
1.9 PUC. "PUC" means the California Public Utilities Commission.
1.10 Permit. "Permit" means this nonexclusive Attachment Permit Agreement and may
also refer to the associated right to encroach upon the Public Way conferred hereunder.
1.11 Person. "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.
1.12 Provision. "Provision" means any agreement, clause, condition, covenant,
qualification,restriction,reservation,term,or other stipulation in this Permit that defines or
otherwise controls,establishes,or limits the performance required or permitted by any party
to this Permit. All Provisions,whether covenants or conditions,shall be deemed to be both
covenants and conditions.
1.13 Public Way. "Public Way"means in,upon,above,along,across,and over the public
streets,roads,lanes,courts,ways,alleys,boulevards,and places,including all public utility
easements and public service easements as the same now or may hereafter exist that are
under the jurisdiction of the City. This term shall not include any property owned by any
Person or Agency other than the City,except as provided by applicable Laws or pursuant to
an agreement between the City and any such Person or Agency.
1.14 Radio Month. "Radio Month" means a calendar month during which a Radio
occupies space on a City-owned pole or other City-owned property,even if such occupancy
is less than the entire month.
1.15 Radio. "Radio" means the radio equipment, whether referred to singly or
collectively, to be installed and operated by Metricom hereunder and more particularly
Telecommunications Attachment Permit Agreement
City qfRedlands::Uetricom,Inc,
page 2 of 15
metricomagreemend[rtvgO7scO5apa98J 412311999
Received: 8/31 /99 12.22PM; 510 845 7135 -> METRICOM; Page 4
Rug 31 99 12: 06p Robert L. DELSMAN (510) 845-7135 p. 4
described in Exhibit A attached hereto.
1.16 Ricocheig. "Ricochet9"or "Ricochet(I)MCDN"means RicochetO MicroCellular
Digital Network,a wireless,microcellular digital radio communications network owned and
operated by Metricom.
1.17 Services. "Services" means the wireless digital communications services provided
through Ricochet by Metricom to subscribers with billing addresses within the City.
1. TERM. The term of this Permit shall commence on the Effective Date and shall expire on the
date which completes five (5) years after the Effective Date, unless it is earlier terminated by
either party in accordance with the provisions herein. The term of this Permit shall be renewed
automatically for two (2) successive terms of five (5) years each on the same terms and
conditions as set forth herein, except that the Annual Fee shall be subject to adjustment as
provided in§ 4.3.1 below,upon application to the City by Metricom and approval by the City
Council of City.
2. ScopF.of PERMIT. Any and all rights expressly granted to Metricom under this Permit,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 Way
exclusively or concurrently with any other Person or Persons and shall be further subject to all
deeds,easements,dedications,conditions,covenants,restrictions,encumbrances,and claims of
title which may affect the Public Way. Nothing in this Permit shall be deemed to grant,convey,
create,or vest in Metricom a perpetual real property interest in land,including any fee,leasehold
interest, or easement.
2.1 Attachment to City-Owned Property. The City hereby authorizes Metricom to
attach, install, operate, maintain, remove,reattach, reinstall, relocate, and replace Radios in or on
City street light poles,lighting fixtures,electroliers,or other City-owned property located within the
Public Way for the purposes of providing Services to Persons located within or without the limits
of the City.
2.2 Attachment to Third-Party Property. Subject to obtaining the permission of the
owner(s)ofthe affected property,the City hereby authorizes and permits Metricom to attach,install,
operate,maintain,remove,reattach,reinstall,relocate,and replace such number of Radios in or on
poles or other structures owned by public utility companies,including SCE,or other property owners
located within the Public Way as may be permitted by the public utility company or property owner,
as the case may be. Metricom shall furnish to the City documentation of such permission from the
individual utility or property owner responsible.
Telecommunications Attachment Permit Agreement
City of Redlands::Metrtcam,Inc.
page 3 of 15
metricomagreementl[rwg07sc05apa98] 412311999
I Received: 8/31 /99 12:23PM; 510 846 7135 -> METRICOM; Page 5
Aug 31 99 12: 06p Robert L. DELSMAN 15101 845-7135 P. 5
2.3 No Interference. Except as permitted by applicable Laws or this Permit Metricom
in the performance and exercise of its rights and obligations under this Permit shall not interfere in
any manner with the existence and operation of any and all public and private rights-of-way,sanitary
sewers,water mains,storm drains,gas mains,poles,aerial and underground electrical and telephone
wires, electroliers, cable television, and other telecommunications, utility, or municipal property,
without the express written approval of the owner or owners of the affected property or properties.
2.4 Compliance with Laws. Metricom shall comply with all applicable Laws in the
exercise and performance of its rights and obligations under this Permit.
2.4.1 Construction Permits. Any and all construction work performed pursuant
to the rights granted under this Permit,including the installation,operation,maintenance, location,
and attachment of the Radios in the Public Way,shall,if required under applicable City ordinances,
be subject to the prior review and approval of City by means of submission of a permit application,
payment of any applicable permitting fees,and the City's ordinary administrative review. Metricom
agrees to apply for and obtain all appropriate permits required by applicable Law prior to the
commencement of any work of construction in the Public Way. The locations of Metricom's
planned initial installation of Radios shall be incorporated in Exhibit B attached to this Permit.
After the initial deployment of the Radios, new attachments, removals, and relocations of Radios
shall also be subject to the City's permitting process. If the location of any Radio is different from
that applied for in the applicable permit, the location of such Radio installed by Metricom or its
designee shall be disclosed in writing to the City by Metricom within ten (10) days after its
installation, removal, or relocation.
2.4.2 As-Built Drawings. Upon the completion of construction work, Metricom,
promptly shall furnish to the City, in hard copy and in Metricom's electronic format, suitable
documentation showing the exact location of the Radios in the Public Way.
2.4.3 Modification of Service Voltage. The City reserves the right to modify the
service voltage delivered to or at any street light pole or utility pole on which a Radio may be
located. Metricom shall replace or modify any Radio that will be affected by such voltage
modifications within thirty(30)days of receiving notice of voltage modifications. In the event that
Metricom fails to replace or modify any Radio within the thirty-day notice period before the voltage
modification,the City may disconnect any such Radio until Metricom performs and completes the
necessary work and advises City accordingly.
2.5 Annual Business License. Metricom agrees to obtain an annual City business
license prior to the Effective Date and maintain the same throughout the term of this Permit.
3. FEES AND TAXES. Metricom shall be solely responsible for the payment of all lawful Fees and
utility charges in connection with the exercise of Metricom's rights under this Permit,including
those set forth below.
3.1 Franchise Fee. Metricom shall pay to the City,on an annual basis,an amount(the
Telecommunications Attachment Permit Agreement
City of Redlands:!Metricom,Inc.
Pogo 4 elf]
merricomagreementl[rwg07scNapa98] 412311999
-Received: 8/31 /99 12.23PM; 510 845 7135 -> METRICOM; Page
Rug 31 99 12: 07p Robert L. DELSMAN (510) 845-7135 P. 6
"Franchise Fee")equal to five percent (5%) of Metricom's Gross Revenues collected during each
preceding calendar year, which amount shall be collected from subscribers of the Services and
remitted to City as provided herein. The Franchise Fee shall be due on or before the forty-fifth(45')
day after the end of each calendar year or fraction thereof. Within forty-five (45) days after the
termination of this Permit the Franchise Fee shall be paid for the period which has elapsed since the
end of the last calendar year for which the Franchise Fee has been paid. Metricom shall furnish to
the City with each payment of the Franchise Fee a statement, executed by an authorized officer of
Metricom or his or her designee,showing the amount of Gross Revenues for the period covered by
the payment. If Metricom discovers that it has failed to pay the entire or correct amount of the
Franchise Fee,Metricom shall pay the difference to the City or make such other 4ustment within
fifteen(15)days of discovery of the error or determination of the correct amount. Any overpayment
to the City through error or otherwise shall be offset against the next payment due from Metricom.
Acceptance by the City of any payment due under this section shall not be deemed to be a waiver
by the City of any breach of this Permit occurring prior thereto,nor shall the acceptance by the City
of any such payments preclude the City from later establishing that a larger amount was actually due
or collecting any balance due to the City.
3.1.1 Accounting and Audit. Metricom shall keep accurate books of account at
its principal office in Los Gatos or such other location of its choosing for the purpose of determining
the amounts due to the City under§4.2. The City may inspect Metricom's books of account at any
time during regular business hours on five (5) days' prior written notice and may audit the books
from time to time,but in each case only to the extent necessary to confirm the accuracy of payments
due under § 4.2. The City shall bear the cost of any such audit, unless such audit reveals an
underpayment to the City of more than five percent(5%)of the Franchise Fee which was due to the
City for such calendar year. Once each calendar year the City may require an annual report from
Metricom relating to its operations and revenues within the City. City agrees to hold in confidence
any nonpublic information it learns from Metricom in accordance with applicable law.
3.2 Annual Fee. Metricom shall pay to the City an annual fee(the"Annual Fee")in the
amount of Sixty Dollars($60.00)for the use of each City-owned pole or other structure or piece of
City-owned property upon which a Radio has been installed pursuant to this Permit. The initial
Annual Fee shall be due and payable not later than the date of installation of the first Radio on City-
owned poles or other City-owned property under this Permit(the "Installation Date") and shall be
computed based upon the number of Radios Metricom estimates as of the Installation Date that it
will install on City-owned poles or other City-owned property during the succeeding twelve (12)
months. The Annual Fee for subsequent years shall be due and payable not later than thirty (30)
days following each anniversary of the Installation Date and shall equal the total number of Radios
then installed on City-owned poles or other City-owned property pursuant to this Permit multiplied
by the Annual Fee, adjusted for the Prior Year Adjustment, as described immediately below. The
Prior Year Adjustment shall either increase or decrease a subsequent year's aggregate Annual Fee
to account for the installation or removal of Radios during the prior year, and shall equal the
difference between(i)the total number of Radios used to calculate the prior year's aggregate Annual
Telecommunicatiomv Attachment Permit Agreement
City of Redlands::Metricom,Inc,
page S of 15
metricomagreementl frwg07sc05apa98J 412311999
- Received: 8/31 /99 12:24PM; 510 845 7135 ->- METRICOM; Page 7
Rug 31 99 12: 07p Robert L. DELSMAN (510) 845-7135 P. ?
Fee multiplied by twelve (12) and (ii) the actual number of Radio Months which occurred during
such year,multiplied by one-twelfth of the Annual Fee.
3.2.1 CPI Adjustment. At the commencement of each renewal term,the Annual
Fee with respect to such term shall be adjusted effective January I st of the first year of such renewal
term by a percentage amount equal to the percentage change in the U.S. Department of Labor,
Bureau of Labor Statistics, Consumer Price Index of all items, Base 1982-1984, which occurred
during the previous term or renewal term, as the case may be, for the Los Angeles-Anaheim-
Riverside Consolidated Metropolitan Statistical Area.
3.3 City Access Program Subscription Rate. In consideration of City's execution and
delivery of this Permit, City shall have the right throughout the term of this Permit to purchase a
number of subscriptions based upon the City's population, up to the maximum number set forth
below, to RicochetTm Basic Service Subscriptions when such service is commercially available in
the City at the rate of fifty percent(50%) of the regular Basic Service Subscription rate as current
from time to time. The number of subscriptions which the City may purchase at the City Access
Program rate shall be determined in accordance with the City's official population,as shown on the
latest available census data, as follows: (a)for cities with a population of less than 100,000, up to
a maximum of twenty (20) discount subscriptions; (b) for cities with a populationof 100,000 to
249,000,up to a maximum of thirty (30)discount subscriptions; (c) for cities with a population of
250,000 to 500,000, up to a maximum of forty(40) discount subscriptions; and(d) for cities with
a population of over 500,000, up to a maximum of fifty (50) discount subscriptions. City
understands and agrees that Metricom's modems and equipment required to utilize the discounted
subscriptions and any additional service subscriptions or service options the City may desire are
expressly excluded from this special City Access Program rate and may be obtained from either
Metricom or an authorized retailer at market rates current from time to time or under other
promotional programs which may be available from time to time in addition to the City Access
Program rate. City shall use all subscriptions provided pursuant to this §4.3 solely for its own use
and shall not be entitled to resell, distribute, or otherwise permit the use of the same by any other
party-
3.4 Reimbursement of City's Expenses. Metricom shall reimburse the City at City's
standard rates for all reasonable expenses relating to the preparation,issuance,and implementation
of this Permit, promptly upon receipt of bills, paid invoices, and such other documentation as
Metricom shall reasonably require. The reimbursement provided for in this § 4.4 shall not replace
or excuse Metricom from the payment of any applicable City permit fee for work undertaken in
connection with this Permit.
3.5 Potential Utility Users'Tax. Metricom acknowledges and agrees that the City may
require users of revenue-producing services such as the Services to pay a utility users' tax("Utility
Tax")to the City pursuant to City's Municipal Code. If the City determines that the Services are
subject to the Utility Tax, Metricom,agrees to collect the tax from Service users and remit such tax
to the City, without cost to the City, in accordance with City's Municipal Code.
Telecommunications A tiachmeni Permil Agreement
City of Redlands Aletricom,Inc.
page 6 of IS
metricomagreemend frivg07scOapaY81 4123,11999
`RecOlved: 8/31 /99 12:24PM; 510 845 7135 -> METRICOM; Page 8
Rug 31 99 12: 08p Robert L. DELSMRN (510) 845-7135 P. 8
3.6 Most-Favored Nation Clause. Should Metricom after the parties' execution and
delivery of this Permit enter into an attachment permit agreement with another municipality of the
same size or smaller than the City in the Los Angeles Metropolitan Statistical Area which agreement
contains financial benefits for such municipality which,taken as a whole and balanced with the other
terms of such agreement,are in the City's opinion substantially superior to those in this Permit,City
shall have the right to require that Metricom modify this Permit to incorporate the same or
substantially similar superior benefits and such other terms.
4 REMOVAL AND RELOCATION OF RADIOS. Metricom understands and acknowledges that City
may require Metricom to relocate one or more of its Radios,and Metricom shall at City's direction
relocate such Radios at Metricom's sole cost and expense,whenever City reasonably determines that
the relocation is needed for any of the following purposes: (a) to facilitate or accommodate the
construction,completion,repair,relocation,or maintenance of a City project;(b)because the Radio
is interfering with or adversely affecting proper operation of City light poles,traffic signals,or other
City facilities; or(c) to protect or preserve the public health, safety, or welfare. If Metricom shall
fail to relocate any Radios as requested by the City 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.
4.1 Metricom Desires Relocation. In the event Metricom desires to relocate any Radios
from one City-owned pole or other property to another City-owned pole or other property,Metricom
shall so advise City. City will use its best efforts to accommodate Metricom by making another
existing functionally equivalent City-owned pole or other property available for use in accordance
with and subject to the terms and conditions of this Permit.
4.2 Discontinuation of Service. In the event that any Radio subject to this Permit is
abandoned and no longer placed in service for a period-of six (6) months or more, Metricom
promptly shall notify the City,and the City,at its option,may require Metricom,promptly to remove
the abandoned Radio(s)at Metricom's sole cost and expense or dedicate the same to the City. The
City shall not issue notice to Metricom that the City intends to exercise the option to require removal
or dedication of Radios, unless and until the City first gives fifteen(15)days' prior written notice
to Metricom,to remove the Radios. If Metricom shall fail to remove the Radios as required by the
City,the City shall be entitled to remove the Radios at Metricom's sole cost and expense. Metricom
shall execute such documents of title as will convey all right, title, and interest in the abandoned
Radios, but in no other Metricom property, intellectual or otherwise, to the City.
4.3 Damage to Public Way. Whenever the removal or relocation of Radios is required
under this Permit, and such removal or relocation shall cause the Public Way to be damaged,
Metricom,at its sole cost and expense,shall promptly repair and return the Public Way in which the
Radios are located to a safe and satisfactory condition to the satisfaction of the City's Director of
Public Works. If Metricom does not repair the site as just described, then the City shall have the
option,upon fifteen(1 5)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
Telecommunications Attachment Permit Agreement
City ofRedlands,_,,Wetrieom.Inc.
page 7 of 15
metricomagreement][rwg07sc05apa98J 412311999
'Received: 8/31 /09 12:25PM; 510 845 7135 -> METRICOM; Page 9
Aug 31 99 12: 08p Robert L. DELSMAN (510) 845-7135 P. 9
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 reimburse the City for such costs.
5 INDEMNIFICATION,WAIVER,AND BOND. Metricom agrees to indemnify,defend(with counsel
reasonably acceptable to the City and to Metricom's insurance carrier), protect, and hold harmless
the City,its council members,officers,and employees from and against any and all claims,demands,
losses, damages, liabilities, fines, charges, penalties, administrative and judicial proceedings and
orders,judgements,remedial actions of any kind, all costs and cleanup actions of any kind, and all
costs and expenses incurred in connection therewith,including reasonable attorney's fees and costs
of defense(collectively, the "Losses") arising,directly or indirectly,in whole or in part, out of the
activities or facilities described in this Permit, except to the extent arising from or caused by the
negligence or willful misconduct of the City, its council members, officers,employees, agents,or
contractors.
5.1 Waiver of Breach. The waiver by the City of any breach or violation of any
Provision of this Permit by Metricom shall not be deemed to be a waiver or a continuing waiver by
the City of any subsequent breach or violation of the same or any other Provision of this Permit by
Metricom.
5.2 Waiver of Claims. Metricom waives any and all claims,demands,causes of action,
and rights it may assert against the City on account of any loss, damage, or injury to any Radio or
any loss or degradation of the Services as a result of a sudden or gradual loss or change of electrical
power caused by,among others events,an Act of God,an event or occurrence which is beyond the
reasonable control of the City,a power outage,a lightning strike,or occasioned by the installation,
maintenance,replacement or relocation of any City-owned facility to which such Radio is attached.
5.3 Limitation of City's Liability. The City shall be liable only for the cost of repair
to damaged Radios arising from the negligence or willful misconduct of City or its employees or
agents, and the City shall not be responsible for any damages, losses, or liability of any kind
occurring by reason of anything done or omitted to be done by the City or by any third party,
including damages,losses,or liability arising from the issuance or approval by the City of a permit
to any third party or any interruption in Services.
5.4 Bond or Other Security. Prior to the commencement of any work under this Permit,
Metricom shall furnish or cause to be furnished to City a good and sufficient bond, substantially in
the form attached hereto as Exhibit C entitled Surety Bond,in the amount of Seventy Five Hundred
($7,500)Dollars, or such other comparable security instrument as may be approved by the City's
attorney or risk manager, securing the faithful performance by Metricom of all of the work,
construction, installation, and removals required to be performed by Metricom,under this Permit
within the time periods set forth hereunder.
6 INSURANCE. Metricom shall obtain and maintain at all times during the term of this Permit
(including the period between the expiration hereof and Metricorn's removal of its Radios or other
equipment from the Public Way)commercial general liability insurance and commercial automobile
Telecommunications Attachment Permit Agreement
City ti(Redlands::Metricom,Inc.
page 8 of 15
metricomagreemend frtvg07sc0Japa98J 412311999
Received: 8/31 /99 12:26PM; 510 845 7135 -> METRICOM; Page 10
Rue 31 99 12: 09p Robert L. DELSMAN (510) 845-7135 P. 10
liability insurance protecting Metricom in an amount not less than One Million Dollars($1,000,000)
per occurrence (combined single limit), including bodily injury and property damage, and in an
amount not less than One Million Dollars ($1,000,000) annual aggregate for each personal injury
liability and products-completed operations. Such insurance policies shall name the City, its
councilmembers, officers, and employees as additional insureds as respects any covered liability
arising out of Metricom's performance of work under this Permit. Coverage shall be provided in
accordance with the limits specified and the Provisions indicated herein. Claims-made policies are
not acceptable. Such insurance shall not be canceled or materially altered to reduce coverage until
the City has received at least thirty(30)days'advance written notice of such cancellation or change.
Metricom shall be responsible for notifying the City of such change or cancellation.
6.1 Filing of Certificates and Endorsements. Prior to the commencement of any work
pursuant to this Permit, Metricom shall file with the City the required original certificate(s) of
insurance with endorsements,subject to the City's prior approval,which shall clearly state all of the
following:
(a) the policy number; name of insurance company; name and address of the agent or
authorized representative; name, address,and telephone number of insured;project
name and address;policy expiration date; and specific coverage amounts;
(b) that thirty(30) days' prior notice of cancellation is required to the City; and
(c) that Metricom's insurance is primary as respects any other valid or collectible
insurance that the City may possess, including any self-insured retentions the City
may have;and any other insurance the City does possess shall be considered excess
insurance only and shall not be required to contribute with this insurance.
The certificate(s) of insurance with endorsements and notices shall be mailed to the City as the
address specified in§ 8 below:
6.2 Workers' Compensation Insurance. Metricom shall obtain and maintain at all
times during the term of this Permit statutory workers' compensation and employer's liability
insurance in an amount not less than Five Hundred Thousand Dollars ($500,000)and shall furnish
the City with a certificate showing proof of such coverage,
6.3 Insurer Criteria. Any insurance provider of Metricom shall be admitted and
authorized to do business in California and shall be rated at least A:X in A.M. Best& Company's
Insurance Guide. Insurance policies and certificates issued by non-admitted insurance companies
are not acceptable.
6.4 Severability of Interest. Prior to the execution of this Permit, any deductibles or
self-insured retentions must be stated on the certificate(s) of insurance,which shall be sent to and
approved by the City. "Cross liability,""severability of interest,"or"separation of insureds"clauses
shall be made apart of the commercial general liability and commercial automobile liability policies.
Telecommunications Attachment Permit Agreement
City of Redlands::Metricom Inc.
page 9 of 15
merrscomagreementl[rwg07sc05qpa98J 412311999
Received: 8/31 /99 12:26PM; 510 845 7135 — Mr=TRICOM; Page 11
Aug 31 99 12: 10p Robert L. DELSMAN (5101 845-7135 P. 11
6.5 Contractors' and Subcontractors' Insurance. Metricom, shall require that all
contractors and subcontractors obtain insurance meeting the criteria set forth herein and shall furnish
to the City copies of all certificates evidencing such policies of insurance.
6.6 Insurance and Indemnification Obligation. Metricom's compliance with the
insurance requirements herein shall not excuse, replace, or otherwise affect Metricom's duty to
indemnify and defend the City pursuant to § 6 of this Permit.
7 NOTICES. All notices which shall or may be given pursuant to this Permit shall be in writing and
delivered personally or transmitted(a)through the United States mail,by registered or certified mail,
postage prepaid;(b)by means of prepaid overnight delivery service;or(c)by facsimile transmission,
if a hard copy of the same is followed by delivery through the U. S. mail or by overnight delivery
service as just described, addressed as follows:
if to the City:
CITY OF REDLANDS
Attn: City Clerk
P.O. Box 3005
35 Cajon Street
Redlands, CA 92373
if to Metricom:
METRICOM,INC.
Attn: Property Manager
980 University Avenue
Los Gatos, CA 95032
Notices shall be deemed given upon receipt in the case of personal delivery, three (3) days after
deposit in the mail,or the next day in the case of overnight delivery. Either party may from time to
time designate any other address for this purpose by written notice to the other party delivered in the
manner set forth above.
8 TERMINATION. This Permit may be terminated by either party upon forty five(45)days' prior
written notice to the other party upon a default of any material covenant or term hereof by such other
party, which default is not cured within forty-five(45) days of receipt of written notice of default
(or, if such default is not curable within forty-five (45) days, if the defaulting party fails to
commence such cure within forty-five(45)days or fails thereafter diligently to prosecute such cure
to completion),provided that the grace period for any monetary default shall be ten(10)days from
receipt of notice. As used in this § 9, the term default shall include, with respect to Metricom's
obligations hereunder, Metricom's failure (i) to comply with the restrictions established in § 3,
(ii)timely to pay any sums owing to the City under § 4, and (iii) to maintain,deploy,relocate, or
Telecommunications Attachment Permit Agreement
City of Redlands::A-letricam,Inc.
page 10 of l5
metricomagreementl frwg07sc0Sapa98J 412311999
-Received: 8/31 /99 12.27PM; 510 845 7135 -> METRICOM; Page 12
Aug 31 99 12: 10p Robert L. DELSMAN (510) 845-7135 p. 12
remove its Radios as provided in § 5 hereof.
9 ASSIGNMENT. This Permit shall not be assigned by Metricom without the express written
consent of the City,which consent shall not be unreasonably withheld,conditioned,or delayed. Any
attempted assignment in violation of this § 10 shall be void. Notwithstanding the foregoing, the
transfer of the rights and obligations of Metricom hereunder to a parent, subsidiary, or financially
viable affiliate of Metricom or to any successor-in-interest or entity acquiring all or substantially all
of Metricom's outstanding voting stock or assets shall not be deemed an assignment or transfer for
the purposes of this Permit,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 Permit by virtue of such transfer. If such criteria are satisfied, it shall not be
deemed reasonable for the City to withhold its consent to the proposed transfer,unless the proposed
transferee has a record of performance under similar agreements which is unacceptable to the City
under a reasonable standard of evaluation. Lack of prior specific experience in administering a
system providing the Services described in this Permit shall not,by itself,be deemed a reasonable
basis for refusing or conditioning the City's consent. 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.
10 MISCELLANEOUS PROVISIONS. The provisions which follow shall apply generally to the
obligations of the parties under this Permit.
10.1 Nonexclusive Use. Metricom understands that this Permit does not provide
Metricom with exclusive use of any City-owned poles or property and that City shall have the right
to permit other providers of telecommunications services to install equipment or devices in the
Public Way;however,City shall endeavor promptly to notify Metricom of the receipt of a proposal
for the installation of communications equipment or devices in the Public Way, regardless of
whether a license is required by the FCC for the operation thereof.
10.2 Amendment of Permit. This Permit may not be amended except pursuant to a
written instrument signed by both parties
10.3 Severability of Provisions. If any one or more of the Provisions of this Permit shall
be held by court of competent jurisdiction in a final judicial action to be void, voidable, or
unenforceable, such Provision(s) shall be deemed severable from the remaining Provisions of this
Permit and shall in no way affect the validity of the remaining portions of this Permit.
10.4 All-Hours Contact. Metricom shall be available to the staff employees of any City
department having jurisdiction over Metricom's activities twenty-four(24)hours a day, seven(7)
days a week,regarding problems or complaints resulting from the attachment,installation,operation,
Telecommunications Attachment Permit Agreement
City of Redlands Metricom,Inc.
page I t of 15
metricomagreementl[rwg07sc05qpa98] 412311999
Received: 8/31199 12:27PM; 510 845 7135 -� METRICOM; Page 13
Aug 31 99 12: 11p Robert L. DELSMAN (510) 845-7135 p. 13
maintenance,or removal of the Radios. The City may contact by telephone the network control
center operator at telephone number(800) 556-6123 regarding such problems or complaints.
10.5 Governing Law;Jurisdiction. This Permit shall be governed and construed by and
in accordance with the laws of the State of California. In the event that suit is brought by a party to
this Permit,the parties agree that trial of such action shall be vested exclusively in the state courts
of California,County of San Bernardino, or in the United States District Court,Central District of
California in the County of San Bernardino.
10.6 Attorneys' Fees. Should any dispute arising out of this Permit lead to litigation,the
prevailing party shall be entitled to recover its costs of suit, including reasonable attorneys' fees.
10.7 Exhibits. All exhibits referred to in this Permit and any addenda,attachments,and
schedules which may from time to time be referred to in any duly executed amendment to this
Permit are by such reference incorporated in this Permit and shall be deemed a part of this Permit.
10.8 Successors and Assigns. This Permit is binding upon the successors and assigns of
the parties hereto.
10.9 Rules,Regulations,and Specifications. Metricom acknowledges that the City may
develop rules, regulations, and specifications, including a general ordinance or other regulation
governing wireless telecommunications in the City (the "Regulations"), for the attachment,
installation, and removal of Radios and any similar purpose devices on the City-owned facilities,
including poles, and that such Regulations, when finalized, shall govern Metricom's activities
hereunder as if they had been in effect at the time this Permit was executed by the City; provided,
however,that in no event shall such Regulations materially interfere with or affect Metricom's right
to install Radios or Metricom's ability to transmit or receive radio signals from Radios installed
pursuant to and in accordance with this Permit or materially increase Metricom's obligations
hereunder.
10.10 Advice of Displacement. To the extent the City has actual knowledge thereof,
theCiry will attempt to inform Metricom of the displacement of any pole on which any Radio is
located.
10.11 Consent Criteria. In any case where the approval or consent of one party hereto is
required, requested or otherwise to be given under this Permit, such party shall not unreasonably
delay, condition,or withhold its approval or consent.
10.12 Entire Agreement. This Permit contains the entire understanding between the
parties with respect to the subject matter herein. There are no representations, agreements, or
understandings(whether oral or written)between or among the parties relating to the subject matter
of this Permit which are not fully expressed herein.
relecommunicallonsAttachment Permit agreement
City qfftedlands::Metricom,/hr.
page 12 of 15
metricomagreemend[rwgO7jcOJqpa98] 412311999
Received: 8/31199 12:28PM; 510 845 7135 -y METRICOM; Page 14
Aug 31 99 12: 11p Robert L. DELSMAN (510) 845-7135 p. 14
In witness whereof , the parties have executed this Permit as of the date first
above written.
City. CITY OF REDLANDS, a California municipal corporation
ATTEST:
r'
By
Williarn'B -Cunnin am E rie 20 City' clerk
Its: Mayor
Date: September 21 ' 1999
Metricom: METRICOM, INC., a Delaware corporation
By:
Its: Senior dice President,
Date: G- - 1999
App oved As To Form
RO
B
DTate
Attachment Permit Agreement
City of Redlands::Metricom,Inc.
page 13 of 15
metricomagreemend jnvg07sc05apa98J 412311999
I Received: 8/31 /99 12.28PM; 510 845 7135 -= METRICOM; Page 15
Aug 31 99 12: 11p Robert L. DELSMAN (510) 845-7135 P. 15
Exhibit A
onC3;
0
00
0
F-
o0
C- i CL
0
0
CIL
0 0
0L
00 0
_-(D
D 0
Received: 8131 /99 12:28PM; 510 845 7135 — METRICOM; Page 16
Aug 31 99 12: 12p Robert L. DELSMAN (510) 545-7135 P. IG
[EXHIBIT BI
[PROPOSED RADIO LOCATIONS]
PROPOSED LOCATIONS TO BE PROVIDED
AFTER REVIEW OF STREET LIGHT MAPS
AND PRIOR TO DEPLOYMENT
I Heceived: 8/31 /99 12.28PM; 610 845 7135 -} METRICOM; Page 17
Rue 31 99 12: 12p Robert L. DELSMRN 1510) 845-7135 p. 17
[EXHIBIT C1
[FORM OF SURETY BOND]
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: .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
�dd;flnn to the tprmQ nfthp no-reMentor to the work or to the specifications.
(deceived: 8/31 /99 12.29PM; 510 845 7135 -> METRICOM; Page 18
Aug 31 99 12: 12p Robert L. DELSMAN (510) 845-7135 P. 18
PROVIDED,HOWEVER, this bond is issued subject to the following express conditions:
I This bond shall be deemed continuous in form and shall remain in full force and effect until
canceled under Section _, after which all liability ceases except as to any liability
incurred or accrued prior to the date of such 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)
Metricom Bond Form
page C-2 of 2
%
Exhibit C
Bond No. 229541
Premium: $150.00
SURETY BOND
KNOW ALL MEN BY THESE PRESENTS: that METRICOM, INC. , as Principal, and
THE INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA, Incorporated under the
laws of the State of Pennsylvania, and authorized to execute bonds and
undertakings as sole surety, are held and firmly bound unto the City of
Ped -ands, "a. as Obligee, in the penal sum of Seven Thousand Five Hundred and
no/100 Dollars ($7, 500.00) for the payment thereof, well and 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:
To attach, install, operate and maintain a wireless digital
communications radio network on facilities located in the
public right-of-way for purposes of operating its RicochetTM
wireless digital communications radio network
the award of which said agreement was made to the Principal by the Obligee on
September 21, 1999.
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
o--,,ich may be granted by the Obligee, with or without notice to the Surety, and
he shall. satisfy all claims and demands incurred under such agreement, and
s hal' f-illy indemnify and save harmless the Obligee from all costs and damages
hd-ch mt may suffer by reason of failure to do so, and shall reimburse and
--er,av the Obligee all outlay and expenses which the Obligee may incur in
along 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
-e-m,s of the agreement or to the work to be performed thereunder or the
spy fi_cations accompanying the same shall not in any way affect its
obligation on this bond, and it does hereby, waive notice of any such change,
--xt,ensJon of time, alteration or addition to the terms of the agreement or to
the -,vorK or to the specifications .
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT No.5907
C
State of California
County of San Francisco
On December 30, 1999 before me, Ann Anthony, Notary Public
DATE NAME,TITLE OF OFFICER-E.G.,"JANE DOE.NOTARY PUBLIC"
personally appeared Rospmarie Guanill
NAME(S)OF SIGNER(S)
personally known to me - OR - 7,❑ proved to me on the basis of satisfactory evidence
to be the person(s) whose name(s) is/are
subscribed to the within instrument and ac-
knowledged to me that he/she/they executed
the same in his/her/their authorized
capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s),
or the entity upon behalf of which the
person(s) acted, executed the instrument.
NN ANTHONY WITNESS my haa40and offici I seal.
A
COMM, #1179094 8
OTARY PUBLIC-CALIFORNIA
SAN FRANCISCO COUNTY
My Comm.Expires Apr,10,2002 SIGNATURE OF NOTARY
OPTIONAL
Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent
fraudulent reattachment of this form.
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT
❑ INDIVIDUAL
El CORPORATE OFFICER
TITLE OR TYPE OF DOCUMENT
TM. E(S)
El PARTNER(S) tEl LIMITED
7
J GENERAL
ATTORNEY-IN-FACT NUMBER OF PAGES
TRUSTEE(S)
GUARD[AN/CONSERVATOR
OTHER:
DATE OF DOCUMENT
SIGNER IS REPRESENTING:
NAME OF PERSON(S)OR ENMTY(IES)
The Insurance Company of SIGNER(S) OTHER THAN NAMED ABOVE
the State of Pennsylvania
:0
G1993 NATIONAL NOTARY ASSOCIATION-8236 Remmet Ave.,P.O.Box 7184-Canoga Park,CA 91309-7184
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California 1
}
County of Santa Clara;
On January 7, 1999, before me, Anthony E. Rodriguez, Notary Public, personally
appeared Dick Au, personally known to me to be the person whose name is subscribed to
the within instrument and acknowledged to me that he executed the same in his
authorized capacity and that by his signature on the instrument the person, or the entity
upon behalf of which the person acted, executed the instrument.
AWHOWE UU
t t� WITNESS my hand and official seal
"Ofty"*-Cwt
,r :x
Place Notary Seal Above 3 Signature of 3Vot#3APublic
OPTIONAL
Though the information below is not required by law,it may prove valuable to persons relying on the document and could
prevent fraudulent removal and reattachment to another document
Description of Attached Document
Title or Type of Document:
Document Date: Number of Pages:
Signer(s)Other Than Named Above:
Capacity (ies)Claimed by Signerner
Sipners Name:
❑ Individual
_ Top of Thum-b! Here
❑ Corporate Officer
❑ Partner-❑ Limited ❑ Genera(
❑ Attorney in Fact
❑ Trustee
❑ Guardian or Conservator
❑ Other:
Signer is Representing: �� �
T01- --
1"He hisuranw,_t, 0iinip.-Illy of t'he of loellns%hallia 1;01A'E�R 01 A-T 'NEY
WatcrSircc,,NcvYooll,,, N,V '(k,
K"ADW ALL W17 T-HES'E PRE S14__-%-, is:
Tl-ac COnnnany of the Sfaie ol_Fl.mnsx"lvall�d� a 1'eniz,, Niia -oi poi atira-i, does 1-11�,clsy appoint
---Statilev 17. Loar.Charles R.Slkimlual,',V'role r C. Dickim;on,-N-Inev L.liamilton,
Rosemarie GuaniH: of San Francisco,California---
-
liI'-bonds,uldeilakipgs,recognizznce, amcl ol!i�:r contracts
s 41ruc and law fuAtromey(s)-irt-Fact, A-ifla(tall authorify to execL c on its beital
01 indemn-U111
tv aild V- DES obli2zory in IffiallU
c itre ffiereot" issued in uio coursc ofits business,and to biud lh-0 lelvL)Y�l
IN *�VITNE'SS WHEREOF,-Ilie,Insurance Company of me State of Pvnnsylvania has executcd these presents
qqq,
_e
W�7
Lawrence W.Clllristrcm,VIce President
STA'rE OF NEW YORK
COUNTY OF NEW YORKISS.
On this 24th rchty of:i.-ebruan,, 1999 b_-fore me came the above
rlanlLd olfficer cil' —the Insurance Company of the State of
Pennsylvania., to mt; personally Lmowtt to bc the individual and
on icer dcQcribed herern. and acknowledged tt he executed the
teaft)r, and affixed the seal of sa;d corporation W-1-1,01, Coun�,
fdu g `
__ ,m, inStrUlrlent
fl crLtn bv aufhorit�v otl
'n -hisfic e. 7,6cr, E,.Pires Jan. -1,
CERTIFICATE
'„> -to i�csohltion adocted bv the Briand of rlirector�of The lnswance Company of the State of Illennsylvallfia,oil =any IS, 9 t6:
"RESOLVED, that One Chairman of the Board� the President, or any Vice President- be, and 'emit i5,�S, autihorized to appoint Attorney's-in-Fact to
h a Hil
ne'r)!ese r.� an c; act fo i- and on be'al= o f the C'01,,-�nam to exe-utc, bon 4�, unidertakin-s. reco2nizances and other contraa of indc� rmy and w-ifinas
I
o0ktzatory iin Jhe na,ure*herco�',and o atrach ffiereto-he corporate scal fthe Comnpany.in the transaction of it suretybusiness-
to any such Power of-Imcm ey or to any
"RESOLVED, --h I
0� SUC'i 0ffiiCr5z an"A c)�ti e conn�-,,anv nnav XCA
and aues-.,. i 1 11 1 1
...... cs;- �znatures or 1-atann-ifle S..a� 'O"all be "'Uhd
thwret b, facsimile, .d i er,fica',,-,beamn�, su= mu!_S1.
U-1 U,
making, recognizance or other contrast of inliennny or w.-ung
zt any 0 il
-ni,” lbind;ln.g upon • aE; when so i with respec, o on iu n d
�q)'li�oanar% ;n, the nlaurL thereof;
- F,ect
"RESOLVED, tl-un ariv sucli Attonev-nl-Fac, C!�fic:'lnlon tha'., n�e or-.olnu, resisiunons still e b ;n d ,ms s_ in sucin
a stecre,,;nal
J
ri
iia,da-c thereof.said date to be not later than the dalc ofdclgvery thercufb�y su,dlh -Fact.'
--Lrp;�z 0 't-SoluTion,
I i,-1, ,_-h T;_26_ SeCretary of-Eric fnsurlinc�� ornpanv of thle Stao- ot Penns,,lvannft,Tlo hereby ccrnify e foregoing e
are true ano correc, . ll
I • arc, d at both the
Corponation, and he llot,,_,r of A no rtl,c,y sui pur--�
saam ti
a opted b y t hic, Boa--' of Directors of'his
ll�,d < Ge fl-ove. t Attorriev -ire m, r L c a-d cft c,
I N W VFN LSS kk I I EREOFI have hereumo sel n, hand unaffi Ih,,,f"'acs n, le seu! t', h e cc, por-ti ua
30th December it) 99
day or
Ei'lizabeth M.Tuck, Secn_,tart,
,—Y