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Contract 26464
CITY SECRETARY CONTRACT NO. 4 CITY OF FORT WORTH POLE ATTACHMENT AGREEMENT This POLE ATTACHMENT AGREEMENT ("Agreement") is made and entered into by and between the CITY OF FORT WORTH, a home rule municipal corporation organized under the laws of the State of Texas, acting by and through Mike Groomer, its duly authorized Assistant City Manager, and METRICOM, INC., a Delaware corporation acting by and through Dick L. Au, Company's duly authorized Vice President of Corporate Operations. Recitals The following statements are true and correct and form the basis of this Agreement: A. Pursuant to City Ordinance No. 13807 and the Public Right-of-Way Use Agreement attached thereto (the "Ordinance"), the City has granted Company a license to use the Public Rights-of-Way in the City for the purpose of Company's constructing, maintaining and operating a wireless digital data communications radio network known as Ricochet® ("Network") and to provide certain Communications Services, including Internet connections, therefrom. The Network consists of radios and related equipment attached to facilities in the Public Rights-of- Way. B. The City owns numerous electric street light poles and lighting fixtures in the Public Rights-of-Way. Company wishes to attach radios and related equipment comprising a portion of the Network on some of these poles and fixtures. The City is willing to allow Company to attach such radios and related equipment on certain City-owned electric street light poles and lighting fixtures on the terms and conditions set forth in this Agreement. Agreement NOW, THEREFORE, in consideration of the benefits, promises and mutual covenants contained herein, and for other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged by both the City and Company, the City and Company agree as follows: 1. DEFINITIONS. Capitalized terms used in this Agreement and not otherwise defined within this Agreement shall have the following meanings: City shall mean the area within the corporate limits of the City of Fort Worth, Texas and the governing and administrative body thereof. Pole Attachment Agreement between City of Fort Worth and Metricom,Inc. Communications Business shall mean the operations necessary and incident to Company's provision of Communications Services in the City. Communications Services shall mean only the wireless digital communications provided by Company to customers in the City through Ricochet& Company shall mean Metricom, Inc. Director shall mean the Director of the City's Transportation/Public Works Department or authorized representative. Effective Date shall mean the date on which this Agreement has been executed by both the City and Company. Facility or Facilities shall mean electric street light poles and lighting fixtures owned by the City, but shall not include any pole or fixture that also contains a traffic signal device. Ordinance shall mean City Ordinance No. 13807 and the Public Right-of-Way Use Agreement attached thereto. Person shall mean 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 or business entity or association. Public Right-of-Way shall mean all dedicated public streets, highways, alleys and rights-of-way in the City, but shall not include any property of the City that is not a dedicated public street, highway, alley or right-of-way. Radio shall mean the radio equipment, whether referred to singly or collectively, installed and operated by Company pursuant to this Agreement and the Ordinance. Ricochet@or Ricochet@ MCDN shall mean Ricochet@ MicroCellular Digital Network, a wireless, microcellular digital radio communications network owned and operated by Company. System shall mean Company's system of Radios and other equipment used by Company in the provision of its Communications Services. Telecommunications Service shall mean the offering of any type of telecommunications service, other than the Internet connections and wireless digital communications services provided by Company through RicochetO as represented to the City as of the Effective Date of this Agreement, to the public, or to such classes of users as to be effectively available directly to the public, regardless of the facilities used, by means of the transmission, between or among points specified by the user, of Pole Attachment Agreement bet Teen 011'o/fort {forth and A4etricom, Inc ` �� `vG� ,d, "� information of the user's choosing, without change in the e form or content of the information as sent and received. 2. GRANT OF RIGHTS. 2.1. Use of Ci!y Facilities. Subject to the terms and conditions set forth in the Ordinance, this Agreement and the City Charter and ordinances, the City hereby grants Company a license to locate, place, attach, install, operate and maintain on certain City Facilities Radios and/or other System equipment described and/or shown on Exhibit "A", attached hereto and hereby made a part of this Agreement for all purposes, only for the provision of Communications Services to subscribers and for purposes directly and reasonably associated with Company's Communications Business. However, this Agreement does not authorize Company to use any particular Facility. Once Company has identified a Facility or Facilities that it wishes to use, it shall submit a written request to the Director. The Director shall then promptly approve or reasonably deny use of each Facility requested by Company. A list of Facilities used by Company shall be prepared and updated as reasonably requested by the Director and shall be attached to this Agreement as Exhibit "B" and made a part of this Agreement for all purposes. 2.2. Scope. Any and all rights granted to Company under this Agreement shall be subject to the prior and continuing right of the City to use its Facilities exclusively or concurrently with any other Person or Persons having the legal right to use such Facilities. Nothing in this Agreement shall be deemed to grant, convey, create or vest in Company a real property interest or other ownership interest in any Facility. Any installation or other work performed by or on behalf of Company shall be subject to all federal, state and local laws, ordinances, rules and regulations as well as the prior and customary review and regulation by the City. 2.3. Nonexclusive. This Agreement and all rights granted to Company herein are strictly nonexclusive. The City reserves the right to grant other and future agreements, consents and licenses for the use of Facilities in the City to other Persons as the City deems appropriate. This Agreement does not establish any priority for the use of City Facilities by Company or by any present or future licensees, users or other permit holders. In the event of any dispute as to the priority of use of any Facility, the first priority shall be to the public generally, the second priority to the City in the performance of its various functions, and thereafter, between licensees, users and other permit holders as determined by the City in its sole and absolute discretion. Poly Attachment Agreement hetareen Cdr o/Fort Worth and A9etricom, Inc. 3 c U Co a��':'�ifU��WW�il1�V1W� 2.4. Provision of Telecommunications Services Prohibited. Company shall not provide any kind of Telecommunications Service over or through its System unless (i) Company has obtained a franchise or other written agreement of consent to provide such Telecommunications Services over or through its System or (ii) applicable law specifically allows Company to provide such Telecommunications Services and specifically prohibits the City from requiring a franchise or other written agreement of consent in order for Company to use the Public Rights-of-Way for the provisions of such Telecommunications Services. 3. TERM OF AGREEMENT. 3.1. Initial Term. Unless terminated earlier as provided in this Agreement, the initial term of this Agreement shall commence on the Effective Date and expire on the fifth anniversary thereof("Initial Term"). 3.2. Renewal Terms. Provided that Company has complied with all terms and conditions of this Agreement during the Initial Term, Company shall have the right to renew this Agreement for two (2) consecutive terms of five (5) years each (each a "Renewal Term") on terms and conditions specified by the City at the time and at a License Fee adjusted in accordance with the Section 4.2 of this Agreement. In order to exercise this right, Company shall provide the City with written notice of its desire to renew this Agreement not less than ninety (90) and not more than one hundred twenty (120) days prior to the expiration of the term then in effect. If this Agreement is terminated prior to the expiration of the Initial Term, Company shall forgo any rights provided herein to renew this Agreement. If Company fails to renew this Agreement in accordance with these procedures for a first Renewal Term, or if this Agreement is terminated during the first Renewal Term, Company shall simultaneously forgo its right to renew this Agreement for a second Renewal Term. If this Agreement is renewed on any terms and conditions and/or at a license fee different from those set forth herein, such changes shall be reflected in a written amendment to this Agreement. 4. LICENSE FEE. 4.1. During Initial Term. During the Initial Term of this Agreement, Company shall pay the City an annual fee of Sixty Dollars ($60) for each Radio installed on a City Facility ("License Fee"), prorated on a monthly basis at Five Dollars ($5) per month or any portion thereof. Pule.911uclrntenl.4reenienl between4 Cm a/Furl Worlh and Afelricuni, lnc `� � "u' U.LSCUM PIN �tld ���, BL5'✓\ko 4.2. During Renewal Terms. The License Fee during each year of the first five-year Renewal Term shall be Seventy-Two Dollars ($72) for each Radio installed on a City Facility. The License Fee during each year of the second five-year Renewal Term shall be Eighty-Six and 40/100 Dollars ($86.40) for each Radio installed on a City Facility. 4.3. Payment Dates and Late Fees. Company shall pay the License Fee on a calendar quarterly basis, prorated as appropriate. Payment for each calendar quarter shall be due within forty-five (45) days following the last day of each quarter(May 15, August 15, November 15, February 15) and shall be payable at the location for the City's Revenue Office as set forth in Section 21. The License Fee shall be considered past due if the City has not received full payment for the preceding quarter by the dates indicated herein. The City will assess a late penalty charge of ten percent(10%)per quarter on top of the entire amount of any outstanding License Fee. 5. DEPOSIT. On or before the Effective Date of this Agreement, Company shall remit to the City a maintenance/damage deposit ("Deposit"), in cash, in the amount of Five Thousand Dollars ($5,000). Company will not be entitled to any interest on the Deposit. The City may draw from the Deposit to (i) perform maintenance or repairs to Facilities used by Company and that are necessary because of Company's use of such Facilities or (ii) to undertake any duties or obligations of Company that Company fails to perform as required hereunder. Upon the expiration or earlier termination of this Agreement, the City will refund to Company any unused portion of the Deposit within sixty (60) days following the date that Company has removed all of its Radios and other System equipment from City Facilities. 6. INSTALLATION OF EQUIPMENT, CONSTRUCTION AND IMPROVEMENTS. 6.1. In General. Company may not (i) install any Radios or other System equipment on any City Facility or (ii) make any modification, renovation or improvement to or engage in any other construction activity (collectively an "Improvement") to a City Facility unless the City provides advance written consent to Company as to the specific installation or Improvement. In order to obtain such consent, Company shall submit a written request to the Director, which shall include all plans and estimates for the costs of the proposed installation or Improvement as well as any additional information the Director reasonably may request. All plans, specifications and required work for the proposed installation or Improvement must conform to and be in accordance with all applicable and then-current federal, state and local laws, ordinances, rules and regulations. If Company intends to Pole Attachment Agreement between 5 [4,, City o/Fort Worth and Aletricom, lnc ffV Vp"I L MY employ or engage a contractor or other third parry to perform any work on the proposed installation or Improvement, Company shall supply the Director with the name of such party and must obtain Director's advance written approval before it authorizes such party to work on City Facilities, which approval shall not be unreasonably withheld, conditioned or delayed. 6.2. Documents. Company shall supply the Director with as-built drawings of the Radios and other System equipment installed on City Facilities and any other Improvements within thirty (30) days following their installation or completion. These as-built drawings shall show the actual locations of all Radios and other System equipment and Improvements consistent with Exhibit "A". As-built drawings shall be new drawings or redline changes to drawings previously provided to the Director. Company shall supply the textual documentation in computer format as requested by the Director. 6.3. Radio or System Equipment Upgrade or Changes. Company may update or replace Radios and System equipment from time to time with the prior written approval of the Director, provided that (i) any replacement Radios or additional System equipment are not greater in number, size or weight than the existing Radios or System equipment, except as otherwise approved by the Director in writing; (ii) the installation of such Radios or other System equipment does not structurally impact a Facility any more than the existing Radios or other System equipment; and (iii) the Director has provided advance written consent to any change in the location of any Radios or other System equipment on any Facility. 6.4. Bonds Required of Company and Company's Contractors. Prior to Company's or a contractor's undertaking any installation of Radios or other System equipment or any Improvement on or to a City Facility, Company and Company's contractor, if any, shall obtain payment and performance bonds in accordance with the Texas Government Code, Chapter 2253, as amended, in a form approved in writing and in advance by the City ("Bonds"). Company's Bonds shall guarantee (i) satisfactory completion of the proposed installation or Improvement; (ii) compliance by Company with all requirements, terms and conditions of this Agreement and the Ordinance during the installation or Improvement project; and (iii) full payments to all persons, firms, corporations or other entities with whom Company has a direct relationship relating to the installation or Improvement project. If Company uses a contractor to work on the installation or Improvement, the contractor's Bonds shall guarantee (i) the faithful performance and completion of all work on the installation or Improvement project covered by the contract between Company and its contractor in accordance with the plans and specifications approved by the City and (ii) full payments for all wages for labor and services and of all bills for materials, supplies and equipment used in the performance of that contract. The Pole Attachment Agreement between 6 ^ r C�itt'of ort Worth and hletricom, Inc. �)FFF '0 `i Ifc�LS�� D r orfN�E(GL�0aP! contractor's Bonds shall name both Company and the City as dual obligees. Company's contractor shall execute and deliver its Bonds to Company. Company shall provide the Director with copies of all Bonds prior to the commencement of work on the proposed installation or Improvement. Any approved Bond provided pursuant to § 3.6 of the Ordinance shall satisfy Company's obligation to obtain a performance bond under this § 6.4 provided that (i) such Bond is endorsed to comply with the provisions and conditions of this § 6.4 as they apply to performance bonds and (ii) the amount of such Bond is at least as high as the then-current annual License Fee required by this Agreement 7. UTILITIES. Pursuant to authorization from the utility providing electricity to the Facilities on which Company's Radios and other System equipment are located, Company may draw electricity for the operation of such Radios and other System equipment from the power source located on such Facilities. However, Company may not locate its Radios or other System equipment on Facilities that are metered. Company shall be solely and fully responsible for (i) payment of all electric utility charges to the applicable utility based on the usage of electricity by Company's Radios and other System equipment and applicable tariffs and (ii) reimbursement to the City for any such payments made by the City on account of such usage. 8. MAINTENANCE AND REPAIRS. 8.1. Maintenance and Repairs by Company. Company, at Company's sole cost and expense, shall maintain, repair and secure its Radios and other System equipment on or attached to any Facility in a safe condition, in good repair and in a manner reasonably suitable to the City and that does not conflict with the use of any Facility by the City or other authorized third party users. Company shall keep City Facilities free of debris and anything of a dangerous, noxious or offensive nature or which would create a hazard or undue vibration, heat, noise or interference as a result of Company's use of such Facilities. In an emergency, as determined by the City in the City's sole discretion, the City may perform maintenance or repairs that are Company's responsibility under this Agreement in order to avert, mitigate or cure such emergency. In this event, Company shall reimburse the City for the cost of such maintenance or repairs within thirty (30) calendar days following receipt of an invoice from the City that describes the maintenance or repairs that the City performed on Company's behalf. 8.2. Inspection. The City may inspect Company's Radios and other System equipment for any reason deemed necessary by the City, including, but not limited to, purposes of safety and Pule Altachmeni Agreement between 7 C'it1 of Fort Worth and Aletricoln, Inc. rrn n_ ,trp [CPR--© fL�U UrPrpWII ensurance that Company is in compliance with the conditions and provisions of this Agreement. 8.3. Damage Caused by Company. Company, at Company's sole cost and expense, shall repair any damage to or replace any damaged portion of a City Facility that is caused by Company, its officers, agents, employees, contractors, subcontractors or invitees, to the City's satisfaction within ten (10) calendar days following the date of such damage. 9. RELOCATION OF RADIOS AND SYSTEM EQUIPMENT. 9.1. At City's Request. Company understands and acknowledges that the City, at any time and from time to time, may require Company to protect, support, disconnect, remove or relocate one, more than one or all of its Radios or other System equipment on or attached to any City Facility, either temporarily or permanently, for any reasonable purpose, including, but not limited to, (i) the facilitation or accommodation of any construction, completion, repair, relocation or maintenance of a City or public project; (ii) damage or interference of any kind with the City's current or future use of or operations on any City Facility; (iii) a sale, transfer or abandonment of a Facility; and (iv) to protect or preserve the public health, safety or welfare. Company, at Company's sole cost and expense, shall diligently comply with any such request by the City within the time frame specified by the City. In such an event, the City will use its best efforts, but shall not be obligated, to locate suitable alternative Facilities for use by Company under the terms and conditions of this Agreement. If Company does not comply with a request by the City to protect, support, disconnect, remove or relocate its Radios or other System equipment within the time frame specified by the City, the City may take any action necessary to accomplish the purpose of the request, including, but not limited to, removal and storage of any of Company's Radios or other System equipment on any City Facility, without being liable to Company for any damages of any kind incurred by Company as a result of such action. 9.2. At Third Part quest. Company covenants and agrees that its Radios, other System equipment or operations on any City Facility shall not damage or interfere in any way with the property or operations of any third party user of the same City Facility whose property or operations on the Facility existed prior to the installation or attachment of Company's Radios or other System equipment. If the City receives notification of any such damage or interference, the City shall notify Company in writing and Company shall immediately employ all measures reasonably necessary to correct and eliminate the problem. If the damage or interference cannot be eliminated within a reasonable amount of time, not to exceed thirty (30) calendar days, Company shall immediately cease any action on its part which damages or interferes with the respective user's use of the Facility and shall 1 olc Allachnrew A reernem hethreen Q69 1 ` Cm,of For! Worth and Alelricom, hrc �p G?d comply with any request by the City to correct the problem, including, but not limited to, the removal of Company's Radios or other System equipment from the affected Facility. If Company does not comply with such a request by the City, the City or third party user may take any action necessary to correct the problem, including, but not limited to, removal and storage of any of Company's Radios or other System equipment on any City Facility, without being liable to Company for any damages of any kind incurred by Company as a result of such action. 10. INTERFERENCE. 10.1. Interference and Engineering Studies. Prior to the approval of the installation or attachment of Radios or other System equipment on any City Facility, the City may obtain, at Company's sole cost and expense, an interference study in order to determine whether Company's intended operations will interfere with any existing uses of the Facilities by the City or other third party users. The City may also obtain, at Company's sole cost and expense, an engineering study in order to determine whether the Facilities that Company wishes to use are structurally able to support Company's Radios and other System equipment. The City agrees to provide written notice to Company of its intent to obtain any interference or engineering study and the estimated cost of any such study prior to the performance thereof. In no way shall the performance of any interference or engineering study or the results therefrom affect or mitigate the application of Sections 9.1 and 9.2. 10.2. Interference with Company's Operations. 10.2.1. By Non-Governmental Third Party. The City does not guarantee to Company subsequent noninterference with Company's use of or operations on any City Facilities. However, following the Effective Date of this Agreement, the City will notify Company of any request that the City receives from a third party to lease or use space on a Facility that Company is using. Upon request by Company, the City shall submit to Company the proposal of any such third party, other than a governmental unit, office or agency, and all associated technical specifications reasonably requested in writing by Company, for Company's review; provided, however, that the City shall not be required to provide Company with any specifications or information claimed to be of a proprietary nature by such third party in accordance with applicable law. Company shall have ten (10) calendar days following receipt of such third party's proposal to make any reasonable objections thereto. If the City verifies and agrees with Company's objections, the City shall require the third party to modify its operations proposal in a manner determined, in the City's reasonable judgment, to reduce the interference adequately with respect to Company's operations. If the third party tenant's use of or operations on a City Facility Pofe;ittachmeitAgreement between 9 Cm,of Fort Worth and Aleiricoat, lnt. 9M subsequently materially interferes with Company's operations, the City shall require the third party to modify its operations proposal in a manner determined, in the City's reasonable judgment, to reduce the interference adequately with respect to Company's operations. 10.2.2. By Governmental Third Party. Notwithstanding anything to the contrary in this Agreement, the City may allow, at any time, a governmental unit, office or agency to use a City Facility without regard to potential or actual interference with Company's operations on such Facility; provided, however, that if the operations of such governmental unit, office or agency actually and materially affects Company's provision of its Communications Services, Company may terminate this Agreement upon at least thirty (30) calendar days' written notice to the City. 11. INSURANCE. Company shall procure and maintain at all times, in full force and effect, a policy or policies of insurance to provide coverages as specified herein, naming the City as an additional insured and covering all public risks related to the use, occupancy, condition, maintenance, existence or location of any City Facilities, the attachment, installation, operation, maintenance, removal, reattachment, reinstallation, relocation and/or replacement of any Radios and/or other System equipment and the construction, installation, operation,maintenance or condition of the System. 11.1. Primary Liability Insurance Coverage. • Commercial General Liability: $1,000,000 per occurrence; • Property Damage Liability: $1,000,000 per occurrence; • Automobile Liability: $1,000,000 per accident, including, but not limited to, all owned, hired or non-owned motor vehicles used in conjunction with the rights granted under this Agreement • Worker's Compensation: As required by law; and, Employer's Liability as follows: $1,000,000 per accident. 11.2. Excess Liability Insurance Umbrella. $5,000,000, including Primary Coverage, for each coverage listed in § 1 1.1. Poly Attachment Agreement helween 10 (Ttt'of/,ort Worth and h9etricom, Inc. py M- 1 11.3. Revisions to Required Coverage. At the reasonable recommendation of the City's Risk Manager, the City may at any time revise insurance coverage requirements and limits required by this Agreement. In this event, within thirty (30) days following receipt of written notice from the City, (i) Company will implement all such revisions requested by the City or (ii) if such revisions will directly result in a material increase in Company's insurance premiums, Company may terminate this Agreement by providing fifteen (15) days' advance written notice to the City and a statement of what Company's insurance premiums were prior to the City's request for revisions and what Company's insurance premiums would have been following implementation of such revisions. Company shall notify and/or require its insurance company or companies to notify the City at least thirty(30) days in advance of any material reduction in policy limits or of any cancellation, termination or non-renewal. 11.4. Underwriters and Certificates. Company shall procure and maintain its insurance with underwriters authorized to do business in the State of Texas and who are reasonably acceptable to the City in terms of solvency and financial strength. Within thirty (30) days following adoption of this Agreement by the City Council, Company shall furnish the City with certificates of insurance signed by the respective companies as proof that it has obtained the types and amounts of insurance coverage required herein. In addition, Company shall, on demand, provide the City with evidence that it has maintained such coverage in full force and effect. 11.5. Deductibles. Deductible or self-insured retention limits on any line of coverage required herein shall not exceed $25,000 in the annual aggregate unless the limit per occurrence, or per line of coverage, or aggregate is otherwise approved by the City. 11.6. No Limitation of Liability. The insurance requirements set forth in this Section I 1 and any recovery by the City of any sum by reason of any insurance policy required under this Agreement shall in no way be construed or effected to limit or in any way affect Company's liability to the City or other persons as provided by this Agreement or law. 12. INDEPENDENT CONTRACTOR. It is expressly understood and agreed that Company shall operate as an independent contractor as to all rights and privileges granted herein, and not as an agent, representative or employee of the City. Company shall have the exclusive right to control the details of its operations and activities and shall be solely responsible for the acts and omissions of its officers, agents, servants, employees, contractors, subcontractors, patrons, 1 r C�'UVC treI F MVP"'M Pole Attuclunent Agreement between 1 1 n f Cm o/Foc9 if"orth and A4etricom, /nc. a:k 1 P u e Company acknowledges that the doctrine of respondeat superior shall not apply, as between the City and Company, its officers, agents, employees, contractors and subcontractors. Company further agrees that nothing herein shall be construed as the creation of a partnership or joint enterprise between the City and Company. 13. INDEMNIEICti I.^.,N. COMPANY HEREBY ASSUMES ALL LIABILITY AND RESPONSIBILITY FOR PROPERTY LOSS, PROPERTY DAMAGE AND/OR PERSONAL INJURY OF ANY KIND, INCLUDING DEATH, TO ANY AND ALL PERSONS, OF ANY KIND OR CHARACTER, WHETHER REAL OR ASSERTED, ARISING OUT OF OR IN CONNECTION WITH ITS USE OF ANY CITY FACILITIES OR WHICH MAYARISE OUT OF OR BE INANY WAY CONNECTED WITH (i) THE ATTACHMENT, INSTALLATION, OPERATION, MAINTENANCE, REMOVAL, REATTACMENT, REINSTALLATION, RELOCATION AND/OR REPLACEMENT OF ANY RADIOS AND/OR OTHER SYSTEM EQUIPMENT, (ii) THE CONSTRUCTION, INSTALLATION, OPERATION, MAINTENANCE OR CONDITION OF THE SYSTEM; (iii) THE PROVISION OF ANY SERVICES BY MEANS OF SUCH RADIOS AND/OR OTHER SYSTEM EQUIPMENT; (iv) ANY CLAIM OR LIEN ARISING OUT OF WORK, LABOR, MATERIALS OR SUPPLIES PROVIDED OR SUPPLIED TO COMPANY, ITS CONTRACTORS OR SUBCONTRACTORS; OR (v) COMPANY'S FAILURE TO COML Y WITH THIS AGREEMENT OR ANY FEDERAL, STATE OR LOCAL LAW, ORDINANCE, RULE OR REGULATION, EXCEPT TO THE EXTENT CAUSED BY THE NEGLIGENT ACTS OR OMISSIONS OR WILLFUL MISCONDUCT OF THE CITY. COMPANY COVENANTS AND AGREES TO, AND DOES HEREBY, INDEMNIFY, HOLD HARMLESS AND DEFEND THE CITY, ITS OFFICERS, AGENTS, SERVANTS AND EMPLOYEES, FROM AND AGAINST ANYAND ALL CLAIMS OR LAWSUITS FOR EITHER PROPERTY DAMAGE OR LOSS (INCLUDING ALLEGED DAMAGE OR LOSS TO COMPANY'S COMMUNICATIONS BUSINESS AND ANY RESULTING LOST PROFITS) AND/OR PERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL PERSONS, OF ANY KIND OR CHARACTER, WHETHER REAL OR ASSERTED, ARISING OUT OF OR IN CONNECTION WITH (i) THE ATTACHMENT, INSTALLATION, OPERATION, MAINTENANCE, REMOVAL, REA TTA CMENT, REINSTALLATION, RELOCATION AND/OR REPLACEMENT OF ANY RADIOS AND/OR OTHER SYSTEM EQUIPMENT; (ii) THE CONSTRUCTION, INSTALLATION, OPERATION, MAINTENANCE OR CONDITION OF THE SYSTEM, (iii) THE PROVISION OF ANY SERVICES BY MEANS OF SUCH RADIOS AND/OR OTHER SYSTEM EQUIPMENT, (iv) ANY CLAIM OR LIEN ARISING OUT OF WORK, LABOR, MATERIALS OR SUPPLIES PROVIDED OR SUPPLIED TO COMPANY, ITS CONTRACTORS OR SUBCONTRACTORS; OR (v) COMPANY'S FAILURE TO COMLY WITH THIS AGREEMENT OR ANY FEDERAL, STATE OR LOCAL LAW, ORDINANCE, R ULE OR REGULA TION, EXCEPT TO THE EXTENT CA USED B Y THE NEGLIGENT ACTS OR OMISSIONS OR WILLFUL MISCONDUCT OF THE CITY. Pole Attachment Agreement between City of Fort Worth and Metricom, Inc. lh 1t 61�,•wJUt COMPANY ASSUMES ALL RESPONSIBILITY AND AGREES TO PAY THE CITY FOR ANY AND ALL INJURY OR DAMAGE TO ANY CITY FACILITY WHICH ARISES OUT OF OR IN CONNECTION WITH ANY AND ALL ACTS OR OMISSIONS OF COMPANY, ITS OFFICERS, AGENTS, EMPLOYEES, CONTRACTORS, SUBCONTRACTORS, LICENSEES OR INVITEES, EXCEPT TO THE EXTENT CAUSED BY THE NEGLIGENT ACTS OR OMISSIONS OR WILLFUL MISCONDUCT OF THE CITY. THIS SECTION 13 SHALL SURVIVE THE TERMINATION OR EXPIRATION OF THIS AGREEMENT. 14. TERMINATION. In addition to termination rights contained elsewhere in this Agreement, this Agreement may be terminated as follows: 14.1. Failure by Companyty License Fees or Other Charges. If Company fails to pay any License Fee or other charges due under this Agreement, the City shall deliver to Company a written invoice and notice to pay the invoice within ten (10) calendar days. If Company fails to pay the balance outstanding within such time, the City shall have the right to terminate this Agreement immediately. 14.2. Breach or Default by Company. If Company commits any breach or default, other than Company's failure to pay the License Fee or other charges due under this Agreement, the City shall deliver written notice to Company specifying the nature of such breach or default. Company shall have thirty (30) calendar days following such written notice to cure, adjust or correct the problem to the existing standard. If Company cannot cure, adjust or correct the problem to the existing standard within thirty (30) days, Company shall notify the City in writing and the City and Company shall in good faith establish a reasonable deadline for Company to cure, adjust or correct the problem to the City's satisfaction. If Company fails to cure the breach or default within thirty days or by the deadline negotiated by the City and Company, the City shall have the right to terminate this Agreement immediately. 14.3. Expiration or Termination of Ordinance. This Agreement will automatically terminate upon the termination or effective expiration of the Ordinance unless the City has granted Company another license to use the Public Rights-of-Way in the City for the purpose of Company's constructing, maintaining and operating the Network. Pole Attachment Agreement between 13 Cal,of Fort Worth and Metricom, Inc 0 14.4. Rights of the City Upon Expiration or Termination. Upon the expiration or termination of this Agreement, all rights, powers and privileges granted to Company hereunder shall cease. However, Company shall remain liable to the City for all License Fees and charges payable hereunder and for any obligations that arose prior to the effective date of expiration or termination but that Company did not complete or perform. In addition, Company, at Company's sole cost and expense, shall remove all Radios and other System equipment on or attached to a City Facility and shall, if necessary, restore such City Facilities to the City's reasonable satisfaction within thirty (30) calendar days following the effective date of expiration or termination. After such time, any property remaining on any City Facility shall be deemed abandoned, and the City shall have the right to take full title to any such property and, in its sole discretion, to remove, sell, store or destroy such property. Company agrees that it will assert no claim of any kind against the City, its officers, agents, servants, employees or representatives which may stem from the City's lawful termination of this Agreement or, in accordance with its terms, any act incident to the City's assertion of its rights under this Agreement. 15. ASSIGNMENT. Except as provided in Section 15.1, Company may not assign, transfer, sell or otherwise convey any of its rights, privileges, duties or interests granted to Company by this Agreement unless the City provides its advance written consent, which consent shall not be unreasonably withheld or delayed. Any attempted assignment, transfer, sale or other conveyance of which the City has not provided advance written consent shall be null and void and shall constitute a material breach of this Agreement by Company. 15.1 Affiliates. Company may assign or transfer any of its rights, privileges, duties or interests granted to Company by this Agreement to a parent, subsidiary or affiliated corporation of Company provided that (i) Company notifies the City in writing at least thirty (30) days prior to the effective date of such assignment and (ii) the assignee enters into a written agreement with the City in which the assignee covenants and agrees to comply with all provisions and conditions of this Agreement and to be bound fully by this Agreement the same as if it had originally executed this Agreement. If Company attempts to assign all or any portion of its rights, duties and obligations under the Ordinance, such action shall be considered a material breach of this Agreement. 15.2. Other Assignments. In the event that Company wishes to assign, transfer, sell or otherwise convey all or any portion of Company's rights, privileges, duties and interests granted to Company by this Agreement, Company shall notify the City in writing. As a condition precedent to Pole Attachment Agreement between 14 lr D1� C'itr ofTort Worth and Melocom, Me. rLTrull ��G':LIE r"G°?�l the effectiveness of the City's consent to such an assignment or transfer, the assignee or transferee shall enter into a written agreement with the City in which the assignee or transferee covenants and agrees to comply with all provisions and conditions of this Agreement and to be bound fully by this Agreement the same as if it had originally executed this Agreement. The failure or refusal of the City to approve a requested assignment, transfer, sale or other similar conveyance shall not relieve Company of Company's obligations hereunder, including, but not limited to, payment of License Fees or other charges. 16. LIENS BY COMPANY. Company acknowledges that it has no authority to engage in any act or to make any contract which may create or be the foundation for any lien upon a City Facility or the property or interest of the City. If any such purported lien is created or filed, Company, at Company's sole cost and expense, shall liquidate and discharge the same within thirty (30) days of such creation or filing. Company's failure to discharge any such purported lien shall constitute a material breach of this Agreement and the City may then terminate this Agreement immediately. However, Company's financial obligation to the City to liquidate and discharge such lien shall continue in effect following termination of this Agreement and until such a time as the lien is discharged. 17. TAXES AND ASSESSMENTS. Company agrees to pay any and all federal, state or local taxes or assessments which may lawfully be levied against Company due to (i) Company's use or occupancy of any City Facility or operations therefrom; (ii) the placement of any Radios or System equipment on a City Facility; or (iii) any Improvements made to a City Facility by or on behalf of Company. Any such taxes and assessments that are payable to the City shall be in addition to, and separate and apart from, any License Fees due hereunder. 18. COMPLIANCE WITH LAWS, ORDINANCES, RULES AND REGULATIONS. Company agrees to comply with all applicable federal, state and local laws, and all ordinances, rules and regulations of the City. If the City notifies Company of any violation of such laws, ordinances, rules or regulations, Company shall promptly desist from and correct the violation. 19. NON-DISCRIMINATION COVENANT. Company, for itself, its personal representatives, successors in interest and assigns, as part of the consideration herein, agrees that no Person shall be excluded from participation in or denied the benefits of Company's use of any City Facility on the basis of race, color, national Pule Attachment Agreement between 15 � s �1 I�, `' � �G��u� Cav o/Forl Worth and Aletricom. Inc. origin, religion, handicap, sex, sexual orientation or familial status. Company further agrees for itself, its personal representatives, successors in interest and assigns that no Person shall be excluded from the provision of any Communications Services delivered by Company or in the installation of any Radios, other System equipment or construction of any Improvements on or to any City Facility on grounds of race, color, national origin, religion, handicap, sex, sexual orientation or familial status. If any claim arises from an alleged violation of this non- discrimination covenant by Company, its personal representatives, successors in interest or assigns, Company agrees to indemnify the City and hold the City harmless. 20. LICENSES AND PERMITS. Company, at Company's sole expense, shall obtain and keep in effect all licenses and permits necessary for the installation of its Radios and other System equipment, the operation of its System, Network and Communications Business, the provision of its Communications Services, and any other business concerns related to its use of any City Facilities. 21. NOTICES. Notices required pursuant to the provisions of this Agreement shall be conclusively determined to have been delivered when (i) hand-delivered to the other party, its agents, employees, servants or representatives, (ii) delivered by facsimile with electronic confirmation of the transmission, or (iii) received by the other party by United States Mail, registered, return receipt requested, addressed as follows: To THE CITY: For Rent, Fees and Other Charges: For All Other Matters: City of Fort Worth City of Fort Worth Revenue Office Attn: T/PW Dept. Director 1000 Throckmorton 1000 Throckmorton Fort Worth TX 76102 Fort Worth TX 76102 Facsimile: (817) 871-8092 To COMPANY: Metricom, Inc. Attn: Network Real Estate Dept. 333 W. Julian St. San Jose CA 95110 Facsimile: Pole Attachment Agreement between 16Uc��IJyvpo,) CYI�'of I-ort Worlh and A1eiricom, Inc. KEY 22. ACCEPTANCE OF CITY FACILITIES. Company acknowledges that it has inspected all City Facilities that it wishes to use for installation or attachment of any Radios or other System equipment and is fully advised of its own rights without reliance upon any representation made by the City concerning the condition or structural capacity of such Facilities or any matters related to the delivery of Company's Communications Services. Company hereby accepts all City Facilities used for the installation or attachment of any Radios or other System equipment in the condition existing as of the Effective Date of this Agreement. 23. GOVERNMENTAL POWERS. It is understood and agreed that by execution of this Agreement, the City does not waive or surrender any of its governmental powers. 24. NO WAIVER. The failure of the City or Company to insist upon the performance of any term or provision of this Agreement or to exercise any right granted herein shall not constitute a waiver of the City's or Company's right to insist upon appropriate performance or to assert any such right on any future occasion. 25. GOVERNING LAW AND VENUE. This Agreement shall be construed in accordance with the laws of the State of Texas. If any action, whether real or asserted, at law or in equity, arises out of the terms of this Agreement, by Company's use of any City Facilities or operations stemming from such use, venue for such action shall lie exclusively in state courts located in Tarrant County, Texas or the United States District Court for the Northern District of Texas, Fort Worth Division. In any such action, the prevailing party shall be entitled to recover from the other party all reasonable attorneys' fees and other expenses incurred in bringing or defending, as the case may be, such action. 26. SEVERABILITY. If any provision of this Agreement is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired. Pole Attachment Agreement bettirecn 17 (� u , ! ' �� ML Citeo%Fort Worth and Afetricom, lnc. 27. FORCE MAJEURE. In the event that either the City's or Company's performance of any of the terms, conditions or obligations required by this Agreement is prevented by a cause or event that is not within the respective party's reasonable control, that party's non-performance shall be deemed excused for the period of such inability. Causes or events that are not within a party's control shall include, but not be limited to, acts of God, strikes, sabotage, riots or civil disturbances, failure or loss of utilities, explosions and natural disasters. 28. HEADINGS NOT CONTROLLING. Headings and titles used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. 29. ENTIRETY OF AGREEMENT. This Agreement, including the schedule of exhibits attached hereto and any documents incorporated herein by reference, plus the Ordinance, contains the entire understanding and agreement between the City and Company, their assigns and successors in interest, as to the matters contained herein. Any prior or contemporaneous oral or written agreement is hereby declared null and void to the extent in conflict with any provision of this Agreement. This Agreement shall not be amended unless agreed to in writing by both parties and approved by the City Council. IN WITNESS WHEREOF, the parties hereto have executed this Agreement in multiples thisV day of DeKewL-eV ' , 2000. CITY OF FOR WO&H: COM, INC. By: B ike Groomer e O I C K A U Assistant City Manager Title VICE PRESIDENT CORPORATE OPS . ATTE : ATTES: n By: By: 4 Ci y Secretary Approved As To Form Pole Attachment Agreement bo is ROW Legal Department C,ih•of Fort !North and Windom, lnqy ' Ltir IRI y�r /V,0✓, i 1 �pp0 Ifs. rL ``; ?JU uSGae pate: - APPROVED AS TO FORM AND LEGALITY: Assistant City Attorne M & C: C-18158 8-1-00 l -,RI-AAAI WORD Altnchment Agreement between 19 Cil•of Forl North and Melricom, Inc. I woo 1l4(]•r•�Mp y� f STATE OF CALIFORNIA § COUNTY OF § BEFORE ME, the undersigned authority, a Notary Public in and for the State of California, on this day personally appeared , known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that the same was the act of Metricom, Inc. and that s/he executed the same as the act of Metricom, Inc. for the purposes and consideration therein expressed and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE this day of , 2000. Notary Public in and for the State of California STATE OF TEXAS § COUNTY OF TARRANT § BEFORE ME, the undersigned authority, a Notary Public in and for the State of Texas, on this day personally appeared Mj1(e,(Omer known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that the same was the act of the City of Fort Worth and that he executed the same as the act of the City of Fort Worth for the purposes and consideration therein expressed and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE this 10 "`day of , 2000. SARAN JANM ODLE Notary Public in and for th St of Texas NOTARY PUBLIC a, . State of Texas Comm. Exp.01-20-200¢ Pole,I ttachnu nt Agreement bet hi eetr Cm off-ort Worth and Aletricum, Inc j.c ........,.. --!IJ CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California } } County of Santa Clara} On November 20, 2000, before me, Anthony E. Rodriguez, Notary Public , personally appeared Dick L. 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. ANTHONY E.RODRIGUEZ WITNESS my hand and official seal otCommission# 1195246 Notary Public-California Z Z Santa Clara County My comm.Expies Aug 31,2002 Place Notary Seal Above Signature of Notary Public 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 Signer • Signer's Name: Top of Thumb Here ❑ Individual ❑ Corporate Officer ❑ Partner- ❑ Limited ❑ General ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer is Representing: 4 SCHEDULE OF EXHIBITS POLE ATTACHMENT AGREEMENT between THE CITY OF FORT WORTH and METRICOM, INC. EXHIBIT DESCRIPTION A Depiction of Radios and Other System Equipment Attached to City Facilities B List of City Facilities Used by Company f"CKI FINED Pole,9ttachment A reenrent between Citi of Fort Worth and Menrcon, /nc � tn�E,1'�"c�1,,cy _ � •moi _ �s a �'i� � fy+ •dam �� y s 0 ;.. ... ' S +` G City of Fort Worth, Texas "agor And Council Communication DATE REFERENCE NUMBER " G NAME PAGE 7/25/00 C-18158 20POLE 1 of 1 SUBJECT POLE ATTACHMENT AGREEMENT WITH METRICOM, INC. RECOMMENDATION: It is recommended that the City Council authorize the City Manager to execute a Pole Attachment Agreement with Metricom, Inc. (Metricom) authorizing them to install radios and related equipment comprising a portion of their wireless digital data communications radio network on City-owned electric street light poles. DISCUSSION: Metricom operates a wireless digital data communications radio network known as Ricochet® and wishes to provide telecommunications services in the City through this network. In order to make the network operational throughout the City, Metricom must install a system of radios on poles and other facilities that are located in the public rights-of-way. Metricom currently has a franchise to use the public rights-of-way in the City (Ordinance No. 13807) for the installation of its network. However, that franchise prohibits Metricom from its use of City-owned property, including electric street light poles, unless Metricom has a separate written agreement with the City for that purpose. Under its franchise, Metricom is required to pay the City compensation for the use of the public rights- of-way in the amount of five percent (5%) of its gross revenue from subscribers of its services with Fort Worth addresses. Under the proposed Pole Attachment Agreement, which will have a term of five years with the right to renew for two consecutive terms of five years each, Metricom will pay the City an additional annual fee of $60.00 per pole for the first five years of the agreement, $72.00 per pole in years 6-10, and $86.40 per pole in years 11-15. These increases represent a 20% increase over each previous five-year term, or a 4% annual increase. Revenue from this Agreement will offset additional Transportation and Public Works Department maintenance costs. FISCAL INFORMATION/CERTIFICATION: The Finance Director certifies that the Transportation and Public Works Department will be responsible for the collection and deposit of funds from this Agreement. MG:k Submitted for City Manager's FUND ACCOUNT CENTER AMOUNT CITY SECRETARY Office by: (to) APPROVED GG01 421482 0204501 COUNCIL Mike Groomer 6140 CITY COUNCIL Originating Department Head: AUG 1 2000 Hugo Malanga 7801 (from) ,. C,kd�.., Additional Information Contact: City Secretary of the City of Fort Worth,Texas Hugo Malanga 7801