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HomeMy WebLinkAboutOrdinance 13807.. ORDINANCE NO. ~3~~~ AN ORDINANCE GRANTING A LICENSE TO METRICOM, INC. FOR USE OF PUBLIC RIGHTS-OF-WAY IN THE CITY OF FORT WORTH FOR THE PURPOSE OF CONSTRUCTING, MAINTAINING AND OPERATING A WIRELESS DIGITAL DATA COMMUNICATIONS RADIO NETWORK; REQUIRING EXECUTION OF A PUBLIC RIGHT- OF-WAY USE AGREEMENT BETWEEN THE CITY OF FORT WORTH AND METRICOM, INC. REGARDING CONDITIONS AND REQUIREMENTS RELATED TO THE USE OF PUBLIC RIGHTS-OF- WAY IN THE CITY OF FORT WORTH AND TO THE CONSTRUCTION, MAINTENANCE AND OPERATION OF A WIRELESS DIGITAL DATA COMMUNICATIONS RADIO NETWORK AND TO THE PROVISION OF RELATED COMMUNICATIONS SERVICES TO RESIDENTS OF THE CITY OF FORT WORTH AND TO REASONABLE COMPENSATION TO THE CITY OF FORT WORTH FOR THE USE OF THE PUBLIC RIGHTS-OF-WAY; PROVIDING FOR PUBLICATION; AND PROVIDING AN EFFECTIVE DATE. The following statements are true and correct and constitute the basis upon which the City Council of the City of Fort Worth ("City") has adopted this Ordinance A. Metncom, Inc. ("Company"), a Delaware corporation, wishes to use public nghts-of--way m the City for the purpose of constructing, maintaining and operating a wireless digital data communications radio network known as Ricochet® ("Network") and to provide certain telecommunications services m the Crty of Fort Worth therefrom. The Network will consist of radios and related equipment that Company will attach to facilities m the public nghts- of-way that are owned both by the Crty and by third parties. In accordance with the Crty Charter and ordinances of the City, Company has applied for a license from the City in order to carry out those purposes. B. The City has reviewed Company's request and determined that the granting of a license for use of the public nghts-of--way in the City, on the terms and conditions set forth herein, for the purpose of constructing, maintaining and operating the Network will benefit the communications-related needs and interests of the community, including, but not lirnited to, the provision of necessary competition m communications services. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF FORT WORTH, TEXAS: ection 1. The City hereby grants Company a license to locate, place, attach, install operate and maintain radios and other related equipment on facilities located m the public nghts-of--way subject to the execution by Company of (i) a Public Right-of--Way Use Agreement in the form attached hereto as Exhibit 1, which is hereby made a part of this Ordinance for all purposes and (ii) for use of City-owned facilities located m the public nghts-of--way, a separate pole attachment agreement or facilities use agreement, or, for use of third party-owned facilities located in the public nghts-of--way, the consent or permission of the third party-owner Section 2. In accordance with and as required by Section 2 of Chapter XXV of the City's Charter, the Crty Secretary is hereby directed to publish this Ordinance m rts entirety once each week for four (4) consecutive weeks within a penod of thirty (30) days following adoption by the Crty Council in the official newspapers of the City Company shall pay for or reimburse the City for all expenses incurred from such publication. Section 3. This Ordinance shall be m full force and effect following (i) its adoption, and (ii) rts publication m accordance with Section 2, and (iii) m accordance with Section 1, the execution of the Public Right-of--Way Use Agreement attached hereto as Exhibit 1 ADOPTED ~~--~~-G~1 (sue/~~~.~ Date M & C Number EFFECTIVE DATE APPROVED AS TO FORM AND LEGALITY By• L ~/ Peter Va Assistant Crty Attorney Crty of Fort Worth 2 Exhibit 1 PUBLIC RIGHT-OF-WAY USE AGREEMENT The following statements are true and correct and constitute the basis upon which the City of Fort Worth has executed this Public Right-of--Way Use Agreement ("Agreement") A. The City Council of the City of Fort Worth has adopted an ordinance that grants Metncom, Inc. a license to locate, place, attach, install operate and maintain radios and other related equipment on facilities located m the public nghts-of--way m the Crty of Fort Worth ("Public Right-of--Way Use Ordinance"), subject to the execution by Company (i) this Public Right-of--Way Use Agreement and (ii) for use of City-owned facilities located in the public nghts-of--way, a separate pole attachment agreement or facilities use agreement, or, for use of third party-owned facilities located m the public nghts-of--way, the consent or permission of the third party-owner B. In accordance- with the Public Right-of--Way Use Ordinance, Metncom, Inc. desires to enter into this Agreement. Agreement 1. DEFINITIONS. Capitalized terms used m this Agreement and not otherwise defined within this Agreement shall have the following meanings Act shall mean the federal Communications Act of 1934, as amended. Affiliate shall mean any individual, partnership, association, ~omt stock company, limited liability company, trust, corporation, or other person or entity who owns or controls, or is owned or controlled by, or is under common ownership or control with, the entity m question. Communications Business shall mean the operations necessary and incident to Company's provision of Communications Services m the Crty Communications Services shall mean only the wireless digital communications provided by Company to customers in the City through Ricochet® Company shall mean Metncom, Inc. City shall mean the area wrthm the corporate hmrts of the City of Fort Worth, Texas and the governing and administrative body thereof. Effective Date shall mean the effective date of the Public Right-of--Way Use Ordinance. FCC shall mean the Federal Communications Commission. Gross Revenue shall mean all of the amounts earned or accrued by Company, or by an entity m any way affiliated with Company, m whatever form and from all sources which are in connection with or attributable to (i) the operation of Ricochet® wrthm the City's corporate hmrts to the reasonable extent that such operation can be traced or documented or (ii) Company's provision of Communications Services to customers with bilking addresses located wrthm the City's corporate hmrts. Person shall mean an individual, a corporation, a limited liability company, a general or limited partnership, a sole proprietorship, a ~omt 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 orright-of--way PUC shall mean the Texas Public Utility Commission. Radio shall mean the radio equipment, whether referred to singly or collectively, installed and operated by Company pursuant to this Agreement. 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 m the provision of its Communications Services. Telecommunications Service shall mean the offering of any type of telecommunications service, other than the wireless digital communications services provided by Company through Ricochet, 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 information of the user's choosing, without change in the form or content of the information as sent and received. 2 2. GRANT OF RIGHTS. 2.1. General Use of Public Rights-of-Wav for Provision of Communications ervices. Subject to the terms and conditions set forth m the Public Right=of--Way Use Ordinance, this Agreement and the City Charter and ordinances, the City hereby grants Company a license to locate, place, attach, install operate and maintain Radios and/or other System equipment on facilities located m the public nghts-of--way in the City of Fort Worth, subject to the execution by Company of a separate pole attachment agreement or facilities use agreement for facilities owned by the City, or, .for use of third party-owned facilities located in the public nghts-of--way, receipt of the consent or permission of the third party-owner Company hereby acknowledges and agrees that the location, attachment, installation, operation, maintenance, removal, reattachment, reinstallation, relocation and/or replacement of any Radios and/or other System equipment constitutes an actual use of the Public Rights-of--Way, that the City has the nght to manage and regulate the use of such Public Rights-of--Way, and that the City is entitled to recover reasonable compensation from Company on account of such use of the Public Rights-of--Way Company shall not have the nght to dig m or disturb m any way the physical Public Right-of--Way without the separate wntten consent of the City Company hereby acknowledges and agrees that this Agreement addresses only the use of the Public Rights-of--Way by Company m the provision of Communications Services in the City and does not address use of the Public Rights-of--Way by Company m the provision of any Telecommunications Service m or through the City If Company or an Affiliate of Company contends that Company or an Affiliate of Company is permitted or intends to provide any Telecommunications Service m or through the City, Company shall first notify the City m wntmg and shall obtain a franchise or other permit or agreement for the use of the Public Rights-of--Way if required by the City 2.2. Scone. Any and all nghts granted to Company under this Agreement, which shall be exercised at Company's sole cost and expense, shall be subject to the pnor and continuing nght of the City to use any and all parts of the Public Rights-of--Way exclusively or concurrently with any other Person or Persons having the legal nght to use such Public Rights-of--Way In addition, any and all nghts granted to Company under this Agreement shall be subject to all deeds, easements, dedications, conditions, covenants, restrictions, encumbrances and claims of title of record which may affect the Public Rights-of--Way Nothing in this Agreement shall be deemed to grant, convey, create or vest m Company a real property interest m land, including, but not limited to, any fee, leasehold interest or easement. Any work performed by or on behalf of Company shall be subject to the pnor and customary review and regulation by the City 3 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 franchises for the use of Public Rights=of--Way m the City to other Persons as the City deems appropriate. This Agreement does-not establish any priority for the use of the Public Rights-of--Way by Company or by any present or future franchisees, users or other permit holders. In the event of any dispute as to the priority of use of the Public Rights- of-Way, the first priority shall be to the public generally, the second pnonty to the City in the performance of its various functions, .and thereafter, as between franchisees, users and other permit holders, as determined by the City m the exercise of its powers, including the police power and other powers reserved to and conferred on it by the State of Texas. 2.4. Other Permits. This Agreement does not relieve Company of any obligation to obtain permits, licenses and other approvals from the City necessary for the construction, repair or maintenance of the System or the provision of Communications Services. 3. FEES AND PAYMENTS. 3.1. Public Right-of--Way Use Fee. Company shall pay the City throughout any term of this Agreement an amount equal to five percent (5%) of Company's Gross Revenue ("Right-of--Way Use Fee") Company hereby aclrnowledges and agrees that the amount of this Right-of--Way Use Fee constitutes Just and reasonable compensation to the City for Company's use of the Public Rights-of--Way as provided by this Agreement. 3.1.1. When Due. Company shall pay the Right-of--Way Use Fee to the City on a calendar quarterly basis. The Right-of--Way Use Fee shall be due within forty-five (45) days following the last day of each quarter 3.1.2. Accompanying Report. Company shall submit with its Right-of--Way Use Fee payment a written report in a form acceptable to the City and verified by an officer of the Company that summarizes Company's Gross Revenue for the previous quarter and computes the amount of the Right-of--Way Use Fee due the City for that quarter 4 3.1.3. Audits. The City may audit Company at any time to verify the accuracy of Right- of-Way Use Fees paid to the City Company shall pay any additional amounts due the City as reported m any City audit within thirty (30) days following the City's submission to Company of an invoice for such sum. If this amount exceeds ten percent (10%) of the Right-of--Way Use Fee which the audit shows should have been paid to the City for the period m which the audit covered, Company shall pay the City's costs for the audit. Otherwise, the City shall pay its own costs for the audit. 3.2. Other Payments. In addition to the Right-of--Way Use Fees, Company shall pay the City all sums which may be due the City for property taxes, license fees, permit fees, or other taxes, charges or fees that the City may from time to time impose. 3.3. Interest. All sums due the Crty under this Agreement that are not paid when due shall bear interest at the rate of ten percent (10%) per annum, computed monthly 3.4. Electricity Charges. Company shall be solely responsible for the payment of all electrical utility charges to any applicable utility company based upon usage of electricity by the Radios and applicable tariffs. 3.5. Municipal Access Program. As additional consideration for the City's execution and delivery of this Agreement, throughout the Initial Term or any Renewal Term of this Agreement, as defined in Section 4, the Crty shall have the right, but not the obligation, to purchase, when such service is commercially available in the City, up to a maximum of fifty (50) Ricochet® basic service subscriptions at a discounted rate of fifty percent (50%) of Company's then-current regular rate. The City understands and agrees that Company's modems and equipment required to utilize the discounted subscriptions and any additional service subscriptions or service options that the Crty may desire are expressly excluded from this special Municipal Access Program rate and may be obtained either from Company or an authorized retailer at market rates or other promotional programs which may be available from time to time. The City shall use all subscriptions provided at such Municipal Access Program rate solely for the City's own use and shall not be entitled to resell, distribute or otherwise permit the use of the same by any other Person. 5 3.6. Performance Bond. Within thirty (30) days following the Effective Date of this Agreement, Company shall provide the Crty with a performance bond ("Bond") m the amount of Twenty Thousand Dollars ($20,000 00) issued by a surety and m a form acceptable to the City This Bond shall serve a security to the Crty for the faithful performance by Company of the provisions of this Agreement and payment of all Right-of--Way Use Fees and other sums due the City pursuant to the terms and conditions of this Agreement. The Bond shall provide that the Crty may demand and receive payment of an amount owed by Company to the Crty under the provisions of this Agreement or applicable law by presenting the surety with (i) a written statement, signed by the Crty Manager, that sets forth the basis of the City's demand and contains an appropriate reference to the applicable law, ordinance or provision of this Agreement under which the City is due the sum demanded and (ii) a copy of the Bond. Company shall keep in effect and maintain this Bond at the amount specified herein at all times during the term of this Agreement. The Bond shall provide that the surety shall not cancel the Bond unless the surety provides written notice to the Crty at least sixty (60) days m advance of such cancellation. 4. TERM This Agreement shall become effective on the Effective Date, as established in the Public Right-of--Way Use Ordinance, and shall expire at the end of five (5) years from such Effective Date ("Initial Term") 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 the same terms and conditions. In order to exercise this, Company shall provide the Crty 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 m 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 the first Renewal Term following the Initial Term, or if this Agreement is terminated during the first Renewal Term, Company shall simultaneously forgo to renew this Agreement for a second Renewal Term. This Agreement and all rights of Company hereunder shall automatically terminate upon the expiration of the Initial Term or, if applicable, a Renewal Term of this Agreement. If 'any law or agency rule or regulation is adopted and affects the City's ability or right to (i) manage the Public Rights-of--Way or (ii) protect subscribers within the City on matters such as customer service or consumer protection, Company agrees to meet with the Crty and to negotiate with diligence and in good faith an agreement or amendment to this Agreement that reasonably resolves the City's concerns regarding such law or agency rule or regulation. 6 5. USE OF PUBLIC RIGHTS-OF-WAY. 5.1. Attachment to Municipal Facilities. This Agreement does not provide.any nght for Company to locate or place any of its Radios or any other System equipment on facilities or property owned by the Crty Company hereby agrees to execute a separate, wntten pole attachment or facilities use agreement with the City poor to the location or placement of Radios or any other System equipment on facilities or property owned by the Crty The Crty expressly reserves the nght to require additional compensation for any kmd of use by Company of facilities or property owned by the City 5.2. Attachment to Third Partv Facilities. Subject to and on condition of wntten receipt of the permission or consent of the owner(s) of respective facilities and property, and subject to any permits and other requirements of the City as provided m Section 2.4 of this Agreement, Company may enter the Public Rights-of--Way to attach, install, operate, maintain ,remove, reattach, reinstall, relocate and/or replace such number of Radios in or on poles, facilities or other structures owned by public utility companies or other property owners that may be located within the Public Rights-of--Way Upon request, Company shall provide the City with documentation of any such penmssion or consent of such public utility companies or other property owners. 5.3. Reports as to Location of Radios. Upon completion of Company's installation of the Radios and other System equipment necessary to make Ricochet® in the Crty, Company shall provide the Crty with a wntten report that shows the exact location of Radios and other System equipment. Thereafter, Company shall provide the Crty with such reports on an annual basis or from time to time as reasonably requested by the City and that apply to Radios and other System equipment attached, installed, reattached, reinstalled, relocated and/or replaced dunng the previous quarter 5.4. No Undue Burden. The System and its Radios shall not be erected, installed, constructed, repaired, replaced or maintained in any manner that places an undue burden on the present or future use of the Public Rights-of--Way by the City and the public. If the Crty, m its sole and reasonable judgment, determines that any Radios or any portion of the System does place an undue burden on a portion of the Public Rights-of--Way, Company, at Company's sole cost and expense and within a reasonable time penod specified by the City, shall modify the System or take other actions determined by the Crty to be in the public interest to remove or alleviate the burden. 7 5.5. Minimal Interference. All Radios and System equipment shall be attached, installed, maintained, repaired and removed in a manner that causes minimal interference with the public's use of the Public Rights-of--Way and with the nghts or reasonable convenience of the owners of property which adjoins any of the Public Rights-of--Way 5.6. Restoration of Property Company, at Company's sole cost and expense, and in a manner approved by the City, shall promptly restore any portion of the Public Rights-of--Way that are in any way disturbed or damaged by the attachment, installation, operation, maintenance, removal, reattachment, reinstallation, relocation and/or replacement of any Radios and/or other System equipment to, at Company's option, as good or better a condition as such property was m immediately prior to the disturbance or damage. Company shall diligently commence such restoration within fifteen (15) calendar days following the date that Company first became aware of the disturbance or damage or, if the Radios are being removed, within fifteen (15) calendar days following removal of the Radios. 5.7. Relocation of Radios. Company, at Company's sole cost and expense, shall protect, support, disconnect or remove from the Public Rights-of--Way any Radios or other System equipment, whether located on City-owned facilities or third-party facilities, when required by the City due to street or other public excavation, construction, repair, grading, regrading or traffic conditions, the installation of sewers, drains, water pipes or municipally-owned facilities of any kind, the vacation, construction or relocation of streets or any other type of structure or improvement of a public agency; or any other type of improvement undertaken by or on behalf of the City and necessary for the public health, safety or welfare. 5.8. Removal of Radios. Upon the revocation, termination or expiration without extension or renewal of this Agreement, Company shall immediately discontinue the use in the City of Ricochet, the System and the provision of its Communications Services. Within six (6) months following such revocation, termination or expiration and m accordance with directions from the City, Company shall remove all Radios and other System equipment from the Public Rights-of--Way and from facilities located m the Public. Rights-of--Way If Company has not removed all Radios and other System equipment from the Public Rights-of--Way and facilities located m the Public Rights-of--Way within six (6) months following revocation, termination or expiration of this Agreement, the City may deem all of Company's Radios and other System equipment remaining in the Public Rights-of- Way or located on facilities in the Public Rights-of--Way abandoned and, at the City's sole 8 option, (i) take possession of and title to such property or (ii) take any and all legal action necessary to compel Company to remove such property Within six (6) months following revocation, termination or expiration of this Agreement of this Agreement, Company shall also restore any property, public or private, that is disturbed or damaged by removal of the System. If Company has not restored all such property within this time, the City, at the City's sole option, may perform or have performed any necessary restoration work, in which case Company shall immediately reimburse the City for any and all costs incurred m .performing or having performed such restoration work. 6. LIABILITY AND INDEMNIFICATION. 6.1. Disclaimer of Liability. The City shall not at any time be liable for any m~ury or damage occumng to any person or property from any cause whatsoever that apses out of the attachment, installation, operation, maintenance, removal, reattachment, reinstallation, relocation and/or replacement of any Radios and/or other System equipment, the construction, maintenance, repair, use, operation, condition or dismantling of the System, the provision of Communications Services or Company's Communications Business. 6.2. Indemnification. Company, at Company's sole cost and expense, shall indemnify and hold harmless the Crty, its officers, boards, commissions, agents, employees and volunteers ("Indemnitees"), from and against any and all liabilities, obligations, damages, penalties, claims, liens, costs, charges, losses and expenses, whether legal or equitable, which may be imposed upon, incurred by or asserted against any Indemnitees by reason of any personal injury or property damage or any act or omission of Company, its personnel, employees, agents, contractors or subcontractors which may apse out of or be many way connected with (i) attachment, mstallahon, operation, maintenance, removal, reattachment, 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, either by Company, an Affiliate or any other party; (iii) any claim or lien arising out of work, labor, materials or supplies provided or supplied to Company, its contractors or subcontractors, or (iv) Company's failure to comply with this Agreement or any federal, state or local law, ordinance, rule or regulation. 6.3. Assumption of Risk. Company hereby undertakes and assumes, for and on behalf of Company, its officers, agents, contractors, subcontractors, agents and employees, all risk of dangerous conditions, if any, on or about any City-owned or -controlled property or facilities, 9 including, but not limited to, the Public Rights-of--Way In addition, Company hereby agrees to and shall indemnify and hold harmless any Indemmtee against and from any claim asserted or liability imposed upon any Indemnrtee for any personal injury or property damage incurred or asserted by Company or any of its employees, agents, servants, contractors or subcontractors, and ansing from the attachment, installation, operation, maintenance, removal, reattachment, reinstallation, relocation and/or replacement of any Radios and/or other System equipment or installation, operation, maintenance or condition of the System. 6.4. Defense of Indemnitees. In the event any action, lawsuit or other proceeding is brought against any Indemmtee by reason of any matter for which the Indemnitees are indemnified under Sections 6.2 or 6.3, the City shall give Company prompt notice of the making of any claim or commencement of any such action, lawsuit or other proceeding, and Company, at Company's sole cost and expense, shall resist and defend the same with legal counsel selected by the City and reasonably acceptable to Company and with reasonable participation by the City In such an event, Company shall not admit liability in any matter on behalf of any Indemmtee without the advance wntten consent of the Crty 7. 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 covenng all public asks related to the use, occupancy, condition, maintenance, existence or location of the Public Rights-of--Way, 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. 7.1. 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 lumted to, all owned, lured or non-owned motor vehicles used m conjunction with the nghts granted under this Agreement • Worker's Compensation: As required by law; and, Employer's Liability as follows. $1,000,000 per accident. 10 7.2. Excess Liability Insurance Umbrella. $5,000,000, including Primary Coverage, for each coverage fisted in § 7 1 7.3. 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 regmred by this Agreement. Company agrees that within thirty (30) days of receipt of written notice from the City, Company will unplement all such revisions requested by the City Company shall notify and/or require rts insurance company or cornpames to notify the City at least thirty (30) days m advance of any material reduction in policy limits or of any cancellation, termination or non-renewal. 7.4. 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 compames 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 m full force and effect. 7.5. 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 liiriit per occurrence, or per line of coverage, or aggregate is otherwise approved by the City 7.6. No Limitation of Liability. The insurance requirements set forth in this Section 7 and any recovery by the City of any sum by reason of any insurance policy required under this Agreement shall m 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 8. DEFAULTS. The occurrence at .any time during the term of this Agreement of one or more of the following events shall constitute an "Event of Default" under this Agreement: 11 8.1. Failure to Pay Right-of--Way. Use Fees. An Event of Default shall occur if Company fails to pay any Right-of--Way Use Fee on or before the respective due date. 8.2. reach. An Event of Default shall occur if Company materially breaches or violates any of the terms, covenants, representations or warranties set forth m this Agreement or fails to perform any duty or obligation required by this Agreement. 8.3. Bankruptcv. Insolvency or Receivership. An Event of Default shall occur if Company (i) files a voluntary petition in bankruptcy; (ii) is adjudicated insolvent; (iii) files any petition or fails to contest any petition filed against rt seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief for itself under any laws relating to bankruptcy, insolvency or other relief for debtors, (iv) seeks, consents to or acquiesces in the appointment of any trustee, receiver, master, custodian or liquidator of Company, any of Company's property or revenues, issues, earnings or profits thereof; (v) makes an assignment for the benefit of creditors, or (vi) fails to pay Company's debts generally as they become due. 8.4. Violations of the Law. An Event of Default shall occur if Company violates any existing or future federal, state or local laws or any existing or future ordinances, rules and regulations of the City; provided, however, that no Event of Default shall be deemed to occur or exist during the pendency of any legal action which the City or Company may uutiate against the other under or m connection with such law, ordinance, rule or regulation. 9. UNCURED DEFAULTS AND REMEDIES. 9.1. Notice of Default and Opportunity to Cure. If an Event of Default occurs, the City shall provide Company with written notice and shall give Company the opportunity to cure such Event of Default. For an Event of Default which can be cured by the immediate payment of money to the City, Company shall have thirty (30) days from the date it receives written notice from the City to cure the Event of Default. For any other Event of Default, Company shall have sixty (60) days from the date rt receives written notice from the City to cure the Event of Default. If any Event of Default is not cured within the time period specified herein, such Event of Default shall, without further notice from the City, become an "Uncured Default" and the City immediately may exercise the remedies provided m Section 9.2. 12 9.2. Remedies for Uncured Defaults. Upon the occurrence of an Uncured Default, the City shall be entitled to exercise, at the same time or at different times, any of the following remedies, all of which shall be cumulative of and without limitation to any other nghts or remedies the Crty may have 9.2.1. Termination of Agreement. Upon the occurrence of an Uncured Default, the City may terminate this Agreement immediately Upon such termination, Company shall forfeit all nghts granted to it under this Agreement, and, except as to Company's unperformed obligations and existing liabilities as of the date of termination, this Agreement shall automatically be deemed null and void and shall have no further force or effect. Company shall remain obligated to pay and the City shall retain the nght to receive Right-of--Way Use Fees and any other payments due up to the date of termination. In this event, Company shall comply with the provisions of Section 5 8 of this Agreement. The City's nght to terminate this Agreement under this Section 9.2.1 shall does not and shall not be construed to constitute any kind of limitation on the City's nght to terminate this Agreement for other reasons as provided by and in accordance with this Agreement. 9.2.2. Legal Action Against CompanX. Upon the occurrence of an Uncured Default, the City may commence against Company an action at law for monetary damages or in equity for m~unctive relief or specific performance of any of the provisions of this Agreement which, as a matter of equity, are specifically enforceable. 10. PROVISION OF INFORMATION. 10.1. ilin s. Company shall provide copies of all documents which might reasonably be expected to affect this Agreement and which Company files with or sends to the FCC and/or PUC and, upon the City's request, copies of records which might reasonably be expected to affect this Agreement and that Company is required to maintain under FCC and/or PUC regulations. 10.2. awsuits. Company shall provide the City with copies of all pleadings m all lawsuits to which Company is a party and that pertain to the terms and conditions of this Agreement; the attachment, installation, operation, maintenance, removal, reattachment, reinstallation, relocation and/or replacement of any Radios and/or other System 13 equipment m or on any facility located m the Pubhc Rights-of--Way within the City; and/or the provision of Cornmumcations Services wrthm the City wrtlin thirty (30) days of Company's receipt of same. 10.3. Books and Records. From time to time, during normal business hours and on anon-disruptive basis, the City may review all portions of Company's books and records that are reasonably necessary to momtor compliance by Company with the terms and conditions of this Agreement. Such records shall include, but shall not be limited to, records that Company is required to maintain under FCC and/or PUC and financial information underlying reports provided to the City m accordance with this Agreement. However, Company shall not be required to release Company's income tax returns or information directly underlying the preparation of any such returns. To the extent permitted by law, the City shall treat any information released to it by Company on a confidential basis if requested by Company and upon execution of aCity-signed written agreement or letter to that effect. 11.._ .COMPANY AS INDEPENDENT CONTRACTOR. It is expressly understood and agreed that Company shall operate as an independent contractor as to all rights, privileges, terms and conditions granted by this Agreement, and not as an agent, representative or employee of the City Company shall have the exclusive right to control the details of its Commumcations Business and operations, in accordance with the teens and conditions of this Agreement, and shall be solely responsible for the acts and omissions of its officers, agents, servants, employees, contractors and subcontractors. 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~oint enterprise between the City and Company 12. NOTICES. Notices required pursuant to the provisions of this Agreement shall be conclusively determined to have been delivered when (1)hand-delivered to the other party, its agents, employees, servants or representatives, or (2) received by the other party by Umted States Mail, postage prepaid, return receipt requested, addressed as follows. To THE CITY: City of Fort Worth City Manager°s Office Attn. Pubhc Utilities Supervisor 1000 Throckmorton Fort Worth, TX 76102 To COMPANY: Metncom, Inc. Attn. Network Real Estate Dept 980 Umversrty Ave. Los Gatos, CA 95032 14 with a copy to: City of Fort Worth Department of Law Attn. Attorney for Telecommumcations 1000 Throckmorton Fort Worth, TX 76102 13. NON-DISCRIMINATION COVENANT Company shall not discriminate against any person on the basis of race, color, national origin, religion, handicap, sex, sexual orientation or familial status m the provision of Communications Services, m the receipt of benefits from Company's Commumcations Business, m any opportumties for employment with Company that Company may offer or in the attachment, installation, operation, maintenance, removal, reattachment, reinstallation, relocation and/or replacement of any Radios and/or other System equipment. 14. NO WAIVER The failure of the City to insist upon the performance of any term or provision of this Agreement or to exercise any rights that the City may have, either under this Agreement or the law, shall not constitute a waiver of the City's right to insist upon appropriate performance or to assert any such right on any future occasion. 15. GOVERNING LAW AND VENUE. This Agreement shall be construed pursuant to and in accordance with the laws of the Umted States of America and the State of Texas. If any action, whether real or asserted, at law or in equity, apse out of the terms of this Agreement, Company's provision of Commumcations Services, the attachment, installation, operation, maintenance, removal, reattachment, reinstallation, relocation and/or replacement of any Radios and/or other System equipment, or Company's use of the Public Rights-of--Way, venue for such action shall lie exclusively in state courts located in Tarrant County, Texas or the Umted 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 maybe, such action. 15 16. CONFERENCES. At the request of either the City or Company, the City and Company shall meet at reasonable tunes and upon reasonable notice to discuss any aspect of this Agreement, Company's provision of Commumcations Services, or Company's use of Public Rights-of--Way 17. SEVERABILITY. If any provision of this Agreement is held to be invalid, illegal or unenforceable by a final order entered by a court of competent ~unsdichon, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or unpaired. For purposes of this Agreement, a court order shall be final only to the extent that all available legal nghts and remeches pertaimng to such order, mcluchng, without limitation all available appeals, have been exhausted. In such an event, the City and Company agree that they shall amend or have amended this Agreement to comply with such final order entered by a court of competent ~unsdictxon. 18. FORCE MAJEURE. In the event Company's performance of any of the terms, conditions or obligations regtured by this Agreement is prevented by a cause or event that is not within Company's reasonable control, Company's non-performance shall be deemed excused for the penod of such inability Causes or events that are not within the Company's control shall include, but not be lumted to, acts of God, strikes, sabotage, Hots or civil disturbances, failure or loss of utilities, explosions and natural disasters. 19. HEADINGS NOT CONTROLLING. Headings and titles, other than those captions m Section 1, that are used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. 20. ENTIRETY OF AGREEMENT. This Agreement and the Public Right-of--Way Use Ordinance contains the entire understanding and agreement between the City and Company as to the matters contained herein. Any pnor or contemporaneous oral or wntten agreement is hereby declared null and void to the extent m conflict with the terms and conditions of this Agreement. This Agreement shall not be amended unless agreed to in wasting by both parties and approved by the City Council of the City 16 ACCEPTED AND AGREED TO• METRICOM, INC. By. Name. Title. 17 City of Fort Worth, Texas ~1-~Ayar And CAUn~~I Cammun~cAt~an DATE REFERENCE NUMBER LOG NAME PAGE 5/18/99 G-12563 12METRICOM 1 of 1 SUBJECT PUBLIC RIGHTS-OF-WAY USE ORDINANCE AND AGREEMENT WITH METRICOM, INC RECOMMENDATION It is recommended that the City Council adopt the attached ordinance granting Metricom, Inc. a license to use public rights-of-way in the City in order to install and attach radios and other related equipment to poles and similar facilities located in the public rights-of-way DISCUSSION Metricom, Inc. 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 The attached ordinance gives Metricom the right to install its equipment in the public rights-of-way subject to the consent of the owner of the facilities that are located in the rights-of-way, such as TU Electric or the City The ordinance also requires Metricom to execute a Public Rights-of-Way Use Agreement ("Agreement"), which is attached to the ordinance that governs Metricom's use of the rights-of-way Under the Agreement, Metricom will pay the City 5% of its gross revenue from subscribers of its services with Fort Worth addresses In addition, if Metricom wishes to install its equipment on City- owned poles and facilities, Metricom must execute a separate pole attachment agreement with the City and pay the City additional compensation for the use of those facilities FISCAL INFORMATION/CERTIFICATION The Public Utilities Supervisor will be responsible for collection of funds due the City under this ordinance. CB k Submitted for City Manager's FUND ACCOUNT CENTER AMOUNT CITY SECRETARY Office by: (to) GG01 421342 0134010 ~ n ~~y Charles Boswell 8511 ice" ~U~'! Originating Department Head: ~~ CITY C N Charles Boswell 8511 (from) MAY 18 1'999 Additional Information Contact: ~ ~j(«,,,.~ f Q~ ~eCretarp ci the Peter Vaky 7601 ~7 at Fort ~` ~~'~" Adopted Ordinance Flo, ~