1h Right-of-Way Permit/Metricom
U
RECEi'i£D
rEF ;~ 3 ?~oo
CITY OF CH^NH^~~b~
Writers Direct Phone: 612-403-7832
February 17, 2000
Mr. Scott Botcher
City of Chanhassen
City Manager
690 City Center Drive
Chanhasseay MN 55317-0147
re: Completion of Metricom's ROW Agreement
Dear Scott:
Thanks.fœ:yow:.r.l1 and.;nt("rpst on the pbone Mon~.conceming final steps to bring
Metricom's innovative new "Ricochet®" wireless internet anUata service to residents and
busines.ses in Chanhassen .
\
I h.a¥e..n.rhpil one.!'finalJ:erision" and thœe.."execntohlp. originals" ofMetrlcom's "Right-of-
Way Permit and Facility Use Agreement" (ROW) for signature by you and Chanhassen's Mayor.
As wedisclIssed, .the."~ ofthe-ROW was-done--in concurrence with Mr. Tom
Grundhoefer, General Counsel for the League of Minnesota Cities (LMC), and with Mr. Jim
StrC'mmPn,.ttn17"p.yforthe ~n¡'...rhan.Ratp Anthority (SRA). All changes were finalized in late
December, 1999.
If you h'l"C been able to read th", mpmns 'which Jim Stromm("ft has written about his work on this
"model" ROW, you most likely know that we were conscientious in our work with both the
!MC.nil gR A,-and.revi-iI thp. ilnrnmPnt to their saÛsf1l<'finn. We believe this ROW goes
beyond stlrtutory requirements for compensating cities for MetñCOIli's very IDînima1 impact on
public rights-ot:way.
Ow:.radios reql,ire nn iligging in nr .ilj.rpnt tn str"'*., nn nnilP.Tground conduits, no street cuts,
no significant inconvenience to traffic (since we estimate only 15.minutes to install each pole-top
de¥ice),. aJld only ~out 5...to.1"sJwe,..bwC'size-pole-~devices per square mile mounted on
existing pole structures. This is tmly minimal impact on your. right-of-way, but it brings a
sigJ1ifir.nt j,p.np.fit ofnew. M1T1pP.tÏtnrp. <P.1'\!Ír.es to your citizens!
To date, 15 local Minnesota cities have approved and signed this same ROW document. Your
DPigJ>hnr rC'h..h , was thp fir<t to..sign.and..wanato 1:>e first city to have our competitive new
service up and operating.
Page-l of 2
,
We also think this ROW is the "model" of a .fàir way to document methods for using public
rightsro£.way.to.bring innO¥ativenew.smrices to the public, which in turn can attract people and
business to your community. We want to 1:>e.fàir to all cities, and since fairness is best ensured
with. a. <t.nil'lrd document, we've 1:>een relnrf'l"t to change this standard ROW.
On our last call, you suggested that you would review this issue with your staff... please also
r-eview·tlte iDformation I gavethem-at-OIIf-first meeting on October 20th. We would like this
issue put on your next available City Councitagenda (Consent Agenda if possible since LMC
and SRA, are already comroi1a6Ie with the-ROW document). I will plan to attend that meeting if
pos~ible, to '';s",-iay questions ~ CoÏÜ1ëil members may have. Please use the number atthe
top of the page to confirm council meeting date ànd time.
After the ROW. i. dgJ'eiI b-y.r.h.nh....... .,.hIlÎ11ask.Metricon1-to execute them, and retum. one
original for city files. As soon as the ROW is executed, we can.complete final planning for the
actuaLp.laç"ment of pole-top radios.
'\
~ ~g.in for .you.mterp.<t .nil ..dstanrp. in bringingthis innovative new Ricochet® service
to your constituents.
Sincerely,
~~
Max W. Thompson
MP.tTiçom,Inc......MN ~l Market Manager
,
Page 2 of2
Reference Draft
Highlight of changes made by Metricom as requested by LMC and SRA
[NAME OF MUNICIPA LITYj I
Right-of-Way Permit and Facility Use
Agreement
THIS RIGHT-OF-WAY USE AGREEMENT (this "Use Agreement") is dated as of
. [Year of Agreement Date] (the "Effective Date"), and
entered into by and between the CITY OF [NAME OF MUNlCll' ALITY], a
Minnesota local government unit (the "City"), and METRICOM, INC., a Delaware
corporation ("Metricom").
Recitals
A. Metricom owns, maintains, and operates, in accordance with regulations
promulgated by the Federal Communications Commission, a mobile digital data
communications radio network known as Ricochet®, utilizing Radios (as defined in
§ 1.10 below) and related equipment certified by the Federal Communications
Commission.
B. For purpose of operating Ricochet®, Metricom wishes to locate, place,
attach, install, operate, and maintain Radios in the Public Right of Way (as defined in
§ 1.9 below) on facilities owned by the City, as well as on facilities owned by third
parties therein.
Agreement
Now, therefore, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree to the following
covenants, terms, and conditions:
1 DEFINmONs. The following definitions shall apply generally to the provisions of this
Use A-greement:
1.1 Adjusted Gross Revenues. "Adjusted Gross Revenues" means the gross
dollar amount received by Metricom for its Services (as defined in § 1.11
below) provided to subscribers with billing addresses in the City,
excluding (i) the RigHt ef Way MaftagemeRt ReimbuFsemeRt, if aft)',
payable pUFSuaRt te § 4.1 ct seq. Belew aRà any utility users' tax,
Right-of-Way Permit and Facility UseAgreemenl
G"ty of [Name of MunidpalityJ:: Meln'com, Inc.
Page 10f 17
· .
telecammum£atiaRs communications tax, or similar tax or fee; (ü) local,
state, or federal taxes that have been billed to the subscribers and
separately stated on subscribers' bills; and (iü) revenue uncollectible from
subscribers (i.e., bad debts) with billing addresses in the City that was
previously included in Adjusted Gross Revenues.
1.2 Oty. "City" means the City of [Name of Municipality].
1.3 Fee. "Fee" means any assessment, license, charge, fee, imposition, tax, or
levy of general application to entities doing business in the City lawfully
imposed by any governmental body (but excluding any utility users' tax,
franchise fees, teI££ammumcatiaRs communications tax, or similar tax or
fee).
1.4 lnstallalion Date. "Installation Date" shall mean the date that the first
Radio is installed by Metricom pursuant to this Use Agreement.
1.5 LaWs. "Laws" means any and all statutes, constitutions, ordinances,
resolutions, regulations, judicial decisions, rules, tariffs, administrative
orders, certificates, orders, or other requirements of the City or other
governmental agency having joint or several jurisdiction over the parties
to this Use Agreement.
1.6 Metricom. "Metricom" means Metricom, Inc., a corporation duly
organized and existing under the laws of the State of Delaware, and its
lawful successors, assigns, and transferees.
1.7 MPUC" MPUC" means the Minnesota Public Utility Commission.
1.8 Municipal Fad/jlies. "Municipal Facilities" means City-owned street light
poles, lighting fixtures, electroliers, or other City-owned structures locat@d
within the Public Right of Way and may refer to such facilities in the
singular or plural, as appropriate to the context in which used. .
1.9 Publk RÏjJht of Way. "Public Right of Way" means the space in, upon.
above, along, across, and over the public streets, roads, highways, lanes,
cartways, courts, ways, alleys, boulevards, sidewalks, bicycle lanes, and
places, including all public utility easements and public service easements
as the same now or may hereafter exist, that are under the jurisdiction of
the City. This term shall not include county, state, or federal rights of way
or any property owned by any person or entity other than the City, except
Righl-of..Way Permit and FaC11ity Use Agreement
Ci~v of {Name of Municipality) :: Metricorn, Inc.
Page 20117
as provided by applicable Laws or pursuant to an agreement between the
City and any such person or entity. H the City adjusts its boundaries
pursuant to Minn. Stat., Chap. 414 through annexation, incorporation,
combination, detachment, or other means, this Use Agreement shall be
binding on the entire area within the City's boundaries after the
adjustment.
1.10 Radio. "Radio" means the radio equipment, whether referred to singly or
collectively, to be installed and operated by Metricom hereunder.
1.11 Services. "Services" means the mobile digital communications services
provided through Ricochet® by Metricom, which services consist
principally of wireless Internet, e-mail and local area network access and
m.!Iy.J.!!f.h~.çk.~-ªM!~!!!i.§'!.º.!LQ.L!igJ!.-'lg..-ª!!9..:y'~,g~-º-J.m..~Z~~LE!ºy':!.g~4J..hº.~.~Y.~!'L
that "Services" shall not be construed, interpreted or applied to authorize
~Üh~!'....!'~-ªLJ.Ü!!~.J~!~.!?..m.ill:\!:mf-ª.t\º.!!!i....~~!y'!Ç~.~.....c!!!!;:.!.~.g!D-g....t~J~l?hº!!~...ª!!g.
voice) or video or cable television communications services except as may
be considered standard Internet content.
2 TERM. This Use Agreement shall be effective as of the Effective Date and shall
extend for a term of nine (9) years commencing on the Installation Date, unless it is
earlier terminated by either party in accordance with the provisions herein. The term
of this Use Agreement shall be renewed automatically for three (3) successive terms of
five (5) years each on the same terms and conditions as set forth herein, unless
MetriE:ÐRl Ratifies the City either party notifies the other of its intention not to renew
not less than thirty (3g) one hundred eighty (ISO) calendar days prior to
commencement of the relevant renewal term.
3 ScOPE OF USE AGREEMENT. Any and all rights expressly granted to Metricom under
this Use Agreement, which shall be exercised at Metricom's sole cost and expense, shall
be subject to the prior and continuing right of the City under applicable Laws to use
any and all parts of the Public Right of Way exclusively or concurrently with any other
person or entity and shall be further subject to all deeds, easements, dedications,
conditions, covenants, restrictions, encumbrances, and claims of title of record which
may affect the Public Right of Way. Nothing in this Use Agreement shall be deemed to
grant, convey, create, or vest in Metricom a real property interest in land, including any
fee, leasehold interest, or easement. Any work performed pursuant to the rights
granted under this Use Agreement shall be subject to the reasonable prior review and
approval of the City.
Righl-ol- Way Permit and Facility Use Agreement
Diy of [Name of Municipality}:: Metricom, Inc.
Page 30117
. .
3.1 Attachment to Municipal Facilities. The City hereby authorizes and
permits Metricom to enter upon the Public Right of Way and to locate,
place, attach, install, operate, maintain, remove, reattach, reinstall,
relocate, and replace Radios in or on Municipal Facilities for the purposes
of operating Ricochet® and providing Services. In addition, subject to the
provisions of § 4.3 below, Metricom shall have the right to draw electricity
for the operation of the Radios from the power source associated with
each such attachment to Municipal Facilities.
3.2 Attachment to Third-Party Property. Subject to obtaining the permission
of the owner(s) of the affected property, the City hereby authorizes and
permits Metricom to enter upon the Public Right of Way and to attach,
install, operate, maintain, remove, reattach, reinstall, relocate, and replace
such number of Radios in or on poles or other structures owned by public
utility companies or other property owners located within the Public
Right of Way as may be permitted by the public utility company or
property owner, as the case may be for the purposes of operating
Ricochet® and providinlt Services. Upon request, Metricom shall furnish
to the City documentation of such permission from the individual utility
or property owner responsible. City agrees to cooperate with Metricom,
at no cost or expense to City, in obtaining where necessary the consents of
third-party owners of property located in the Public Right of Way.
3.3 No Interference. Metricom in the performance and exercise of its rights
and obligations under this Use Agreement shall not interfere in any
manner with the existence and operation of any and all public and private
rights of way, sanitary sewers, water mains, storm drains, gas mains,
poles, ærial and underground electrical and telephone wires, electroliers,
cable television, and other--telec-ßmmuflic-ations information or
communications, utility, or municipal property, without the express
written approval of the owner or owners of the affected property or
properties, except as permitted by applicable Laws or this Use Agreement
GI¥«g~ees40 use reasonable~ff{ r-ls to:require the iRdliSion~f the same or
a similar prohibition on interference as that stated above in all agreements
and franchises City may enter into after the Effective Date with other
. teleEelftlftunicatioRS information or communications providers and
carriers.
Right-of-Way Permit and Facility Use Agreement
Oty of {Name 01 Municipality} :: Metrirom, Inc.
Page 40117
3.3.1 Interference Resolution. Any actual or anticipated radio interference
caused by either the presence of the Radios or the presence of anv such
other communications eQuipment or devices in the Public Right of Way
shall be resolved by Metricom and any such other providers without cost
to City on the basis of the applicable rules, regulations, practices, and
procedures of the FCC. City agrees to assist Metricom in the resolution of
any such interference dispute at Metricom's sole expense.
3.4 Compliance with Laws. Metricom shall comply with all applicable Laws
in the exercise and performance of its rights and obligations under this
Use Agreement The Right-of-Way Management Reimbursement
provided for in § 4.1 below shall be in lieu of all other City fees, with the
exception of any City permits required for the initial installation of the
Radios. City shall promptly respond to Metricom's filings and shall
otherwise cooperate with Metricom in facilitating the deployment of
Ricochet® in the Public Right of Way in a reasonable and timely manner.
3.5 Location and Installation of Radios. The proposed locations of Metricom's
planned initial installation of Radios shall be 3reviàeà te tfte City in
e-ensultatiøn--determined ~.!!.!?i.~.L.tp.__.fu~_...!~.!t~º!!~J?l~.._p..r.!º!:....!.~.Y.i.~~.._ª.!!!;I
approval of the City, promptly after Metricom's review of available street
light maps and prior to deployment of the Radios. Upon the completion
of installation, Metricom promptly shall furnish to the City a pole list
showing the exact location of the Radios in the Public Right of Way.
4 COMPENSATION; UTILITY CHARGFS. Metricom shall be solely responsible for the
payment of all lawful Fees in connection with Metricom's performance under tills Use
Agreement, in accordance with the terms set forth below.
4.1 Right-of-Way Management Reimbursement In order to reimburse City for
any right-of-way management costs it may incur during the term of tills
Use Agreement following the initial deployment of the Radios in
connection with Metricom's entry upon and deployment within the Public
Right {)f Way, Metricom shall pay 10 'the City, on .m annual basis, an ..
amount equal to one percent (1 %) of Adjusted Gross Revenues (the "Right-
of-Way Management Reimbursement"), willch amount may be collected
from subscribers of the Services with billing addresses in the City and
remitted to City as provided herein. The parties agree that such
Right-of-Way Management ReImbursement represents a fall' estimate of the
Rjgh/~f-Wa y Permit and Facility Use Agreement
City 01 [Name of Municipality}:: Metn"com¿ Inc.
Page 50! 17
costs of continuing management of the Public Right of Way utilized by
Metricom and that such Right-of-Way Management Reimbursement is not a
franchise fee or payment for use of the Public Right of Way. The
Right-of-Way Management Reimbursement shall be payable for the period
commencing upon the date that Services are offered to commercially paying
subscribers within the City using Radios installed pursuant to this Use
Agreement and ending on the date of termination of this Use Agreement,
and shall be due on or before the 45th day after the end of each calendar year
or fraction thereof. Within forty-five (45) days after the termination of this
Use Agreement, compensation shall be paid for the period elapsing since the
end of the last calendar year for which compensation has been paid.
Metricom shall furnish to the City with each payment of compensation
required by this section a statement, executed by an authorized officer of
Metricom or his or her designee, showing the amount of Adjusted Gross
Revenues for the period covered by the payment If Metricom discovers any
error in the correct amount of compensation due, the City shall be paid
within thirty (30) days of discovery of the error or determination of the
correct amount Any overpayment to the City through error or otherwise
shall be refunded or offset against the next payment due. Acceptance by the
City of any payment due under this section shall not be deemed to be a
waiver by the City of any breach of this Use Agreement occurring prior
thereto, nor shall the acceptance by the City of any such payments preclude
the City from later establishing that a larger amount was actually due or
from collecting any balance due to the City. City may, at any time, at City's
§.º!g...9..E!!.Q.!!t_..~p'.Q!}...m.!l~.ty...í29J..gªy..~.JY.º.~!l..!)'.Q.!tç~.._~9..I!-j!g...Mg!rjǺ!~L.t.º
discontinue the Ril!:ht-of-Wav Manal!:ement Reimbursement
compensation. Upon receivinl!: such notice Metricom shall, no later than
ninety . (90) . days after receivins such notice, cease makinl!: all
compensation payments that would have been payable after such ninety
(90) day notice period. If City requires such a discontinuation of Ril!:ht-of-
Way Manal!:ement Reimbursement compensation, the City may then
J:hac~.~IHU1 .allRualbasis, its ~u:tuaLBighJ:.of-W4l¥ Mana.ttem.ent costs
(pursuant to Minnesota Statutes Sec. 237.162, Subd. 9 and Sec. 237.163,
~!!.1?..4:...?-..J!?)),,_.!h!rt...l!:!.~.!!1.f.!!:~.. a(!er_th~.!!~j!:.'!ti9J!..Qf.Jh!.u!!!}.~.ty.J9..9)'A!!Y.
period described above. Metricom shall only be liable for such actual
ª!ID!!ªL~jgh!~.Qf=WJ'-Y._m.!!.!lé!g~1!\g"IJ..Lçº.~~..!Q...fug...!!~Jg!!L~!1.fÞ....f9_t~._~~.Çggg
the annual retail value of the service subscriptions for which the City is
eligible under Section 4.5 of this Agreement.
Right-of-Way Permit and Fadlity Use Agreement
O"ty ol[Nameof Munidpality}:: Metricom, Inc.
Page 60f 17
4.1.1 Reduction of Right-of-Way Management Reimbursement by
Amount of Utility Users or TelecemmuflÌE:aöeftS Communications
Tax. Notwithstanding anything to the contrary in this Use
Agreement, if the Services are subject· to a utility users tax,
teleEemmuRÍcatieRs communications tax, or other similar tax or fee
which accrues to the City by operation of the City's Municipal
Code or other applicable law, then the amount of the Right-of-Way
Management Reimbursement shall be reduced by the amount of
the applicable utility users tax, telecemællRÏE:atieRS
communications tax, or such other similar tax or fee.
4.1.2 Accounting Matters. Metricom shall keep accurate books of
account at its principal office in Los Gatos or such other location of
its choosing for the purpose of determining the amounts due to the
City under § 4.1 above. The City may inspect Metricom's books of
account relative to the City at any time during regular business
hours on thirty (30) days' prior written notice and may audit the
books from time to time at the City's sole expense, but in each case
only to the extent necessary to confirm the accuracy of payments
due under § 4.1 above. Alternatively, Metricom will make available
for inspection by the City at Metricom's office located closest to the
City, upon thirty (30) days prior written notice, the relevant
portions of its books and records as reasonably necessary to
confirm the accuracy of any payments due the City under this Use
Agr.!?!?m.~!1!:. The City agrees to hold in confidence any non-public
information it learns from Metricom to the fullest extent permitted
by Law.
4.2 Annual Fee. As compensation for the use of Municipal Facilities,
Metricom shall pay to the City an annual fee (the" Annual Fee") in the
amount of Sixty Dollars ($60.00) for the use of each Municipal Facility, if
any, upon which a Radio has been installed pursuant to this Use
Agi'.eemenl WhePe light poles or ether facilities to be used -by Metric-om
within the Public Right of Way are owned by a utility, such annual fee
shall be paid to the appropriate utility and not to the City. The aggregate
Annual Fee with respect to each year of the term shall be an amount equal
to the number of Radios installed on Municipal Facilities during the
preceding twelve (12) months multiplied by the Annual Fee, prorated as
appropriate, and shall be due and payable not later than forty-five (45)
Right-of-Way Permit and Faâlity Use Agreement
Dty of [Name of Municipality]:: Metricom, Inc.
Page t0f 17
days after each anniversary of the Installation Date. City represents and
covenants that City owns all Municipal Facilities for the use of which it is
collecting from Metricom the Annual Fee pursuant to this § 4.2.
4.2.1 CPI Adjustment Effective commencing on the fifth (5th)
anniversary of the Installation Date and continuing on each fifth
(5th) anniversary thereafter during the term, the Annual Fee with
respect to the ensuing five-year period shall be increased by a
percentage amount equal to the percentage increase, if any, in the
U.S. Department of Labor, Bureau of Labor Statistics Consumer
Price Index (All Items, All Consumers, 1982-1984=100) which
occurred during the previous five-year period for the Midwest
Urban Rel!:ion Consolidated Metropolitan Statistical Area.
4.3 Elecbicity Charges. Metricom shall be solely responsible for the payment
of all electrical utility charges to the applicable utility company based
upon the Radios' usage of electricity and applicable tariffs.
4.4 Reirnbursement of City's Project Review Expenses. Metricom shall
reimburse the City at City's standard rates for reasonable attorney's fees
and other project review expenses relating to the preparation and review
of this Use Agreement, promptly upon receipt of itemized bills, paid
invoices, and other such documentation as Metricom shall reasonably
require, and in a total amount not to exceed One Thousand Dollars
($1,000). The reimbursement provided for in this § 4.4 shall not replace or
excuse Metricom from the payment of any applicable permit fee for work
undertaken pursuant to the initial installation of the Radios.
4.5 Municipal Subscriber Program. In erder te eRcÐllrage the \ise ef
Rieochet@...-throagheut····fue···City...·and...-te····fadlitate---€reative·...appli€atieRs
theref-ere, City shall have the right throughout the term of this Use
Agreement to receive up to the maximum number specified below (based
upon the City's population) of free Ricochel® basic service subscriptions.
The numœr of free subscriptions wlúch the City may receive shall be
determined in accordance with the City's official population, as shown on
the latest available census data, as follows: (a) for municipalities with a
population of less than 100,000, up to a maximum of ten (10) free
subscriptions; (b) for municipalities with a population of between 100,000
and 249,000, up to a maximum of fifteen (15) free subscriptions; (c) for
Righf-of-Wa y Permit and Facility Use Agreement
City of IName of Municipality):: Metricom, Inc.
Page 80117
municipalities with a population of between 250,000 and 500,000, up to a
maximum of twenty (20) free subscriptions; and (d) for municipalities of
over 500,000, up to a maximum of twenty-five (25) free subscriptions. City
shall designate one person who shall be responsible for ordering and
receiving any subscriptions. To take advantage of this program, the
designated individual should contact Metricom's Network Real Estate
Deparbnent at the address stated in § 8 below City's right to use the
subscriptions shall commence at the time that Ricochetq ) service is
commercially available in the City and shall extend until the expiration of
the term of this Use Agreement or through the length of time that Radios
are deployed in the Municipal Right of Way, wrochever is longer. City's
use of the subscriptions shall be subject to the standard Ricochel® terms
and conditions of use. City understands and agrees. that modems and
equipment required to utilize the subscriptions and any additional service
subscriptions or service options the City may desire may be obtained from
an authorized retailer at market rates current from time to time. City shall
use all subscriptions provided pursuant to this section solely for its own
use and shall not be entitled to resell, distribute, or otherwise permit the
use of same by any other person, excepting a local public entity that
provides public service within the corporate boundaries of the City (e.g.,
municipal schools, public safety, or fire deparbnents, etc.). The level of
benefits and service provided to City by Metricom as "basic service" shall
not be diminished or reduced during the term of this Use Agreement or
renewal thereof òr prior to its cancellation or termination, as the case may
be.
4.6 Most-Favored Municipality Gause. Should Metricom after the parties'
execution and delivery of this Use Agreement enter into a right-of-way
permit and facility use agreement with another municipality of the same
size or smaller than the City as compared with cities in the Minnesota
counties of Anoka, Carver, Dakota, Hennepin, Ramsey, Scott and
Wasrongton,iR the MiflReapelis Sl Paul MetrepelitaR Statistieal Area
which agreement contains either (a) a rogher RiJ!;ht-of Way Manal1:ement
Reimbursement as described in § 4.1 above or (a!1) a higher Annual Fee as
described in § 4.2 above or ~) a rogher amount of Reimbursement of
City's Project Review Expenses as described in § 4.4 above, City shall have
the right to request-·require that Metricom modify this Use Agreement to
Right-c¡" Way Permit and Facility Use Agreement
Oty 0/ [Name of Municipality}:: Metn"com, Inc.
Page 90117
incorporate the same or substantially similar superior benefits and such
other terms.
5 RELocATION AND DISPLACEMENT OF RADIOS. Metricom understands and
acknowledges that City may require Metricom to relocate one or more of its Radios,
and Metricom shall at City's direction relocate such Radios at Metricom's sole cost and
expense, whenever City reasonably determines that the relocation is needed for any of
the following purposes: (a) if required for the construction, completion, repair,
relocation, or maintenance of a City project; (b) because the Radio is interfering with or
adversely affecting proper operation of City-owned light poles, traffic signals, or other
Municipal Facilities; or (c) to protect or preserve the public health or safety. In any
such case, City shall use its··bes-t··r~~~g!!ª!?k..efforts to afford Metricom a reasonably
equivalent alternate location with no duty to incur any expenses or cost to City. If
Metricom shall fail to relocate any Radios as requested by the City within a reasonable
tiine under the circumstances in accordance with the foregoing provision, City shall be
entitled to relocate the Radios at Metricom's sole cost and expense, without further
notice to Metricom. To the extent the City has actual knowledge thereof, the City will
attempt promptly to inform Metricom of the displacement or removal of any pole on
which any Radio is located.
5.1 Relocations at Metricom's Request In the event Metricom desires to
relocate any Radios from one Municipal Facility to another, Metricom
shall so advise City. City will use reasonable its best efforts to
accommodate Metricom by making another reasonably equivalent
Municipal Facility available for use in accordance with and subject to the
terms and conditions of this Use Agreement.
5.2 Damage to Public Right of Way. Whenever the removal or relocation of
Radios is required or permitted under this Use Agreement, and such
removal or relocation shall cause the Public Right of Way to be damaged,
Metricom, at its sole cost and expense, shall promptly repair and return
the Public Right of Way in which the Radios are located to a safe and
satisfactory condition in accordance with applicable Laws, normal wear
and tear excepted. If Metricom does not repair the site as just described,
then the City shall have the option, upon fifteen (15) days' prior written
notice to Metricom, to perform or cause to be performed such reasonable
and necessary work on behalf of Metricom and to charge Metricom for the
proposed costs to be incurred or the actual costs incurred by the City at
Right-of-Way Permit and FadJity Use Agreement
Oly of [Name of MunicipalityJ:: Metricom, Inc.
Page lOof 17
City's standard rates. Upon the receipt of a demand for payment by the
City, Metricom shall promptly reimburse the City for such costs.
6 INDEMNIFICATION AND WAIVER. Metricom agrees to indemnify, defend, protect, and
hold harmless the City, its council members, officers, and employees from and against
any and all claims, demands, losses, damages, liabilities, fines, charges, penalties,
administrative and judicial proceedings and orders, judgements, and all costs and
expenses incurred in connection therewith, including reasonable attorney's fees and
costs of defense (collectively, the "Losses") directly or proximately resulting from
Metricom's activities undertaken pursuant to this Use Agreement, except to the extent
arising from or caused by the negligence or willful misconduct of the City, its council
members, officers, employees, agents, or contractors. The foregoing notwithstandin~
Metricom shall defend and indemnify the City, and its officers and employees, even in
the case of negligence, unless the allegations allege (a) independent negligence on the
part of the City, its officers and employees or (b) a wrongful act or omission on the part
of the City or its officers or employees. Metricom shall also defend and indemnify the
City, its officers and employees, even in the case of negligence, if the allegations are
based on the City's or its officers or employees' negligence or otherwise wrongful act
or omission in issuing a permit to Metricom or approving this Use Agreement. or in
failing to properlv or adequatelv inspect or enforce compliance with the terms,
conditions or purpose of any permit issued to Metricom.
6.1 Waiver of Claims. Metricom waives any and all claims, demands, causes
of action, and rights it may assert against the City on account of any loss,
damage, or injury to any Radio or any loss or degradation of the Services
as a result of any event or occurrence which is beyond the reasonable
control of the City or on account of Citv's exercise of its regulatory or
police powers. ,
,
6.2 Limitation of City's liability. The City shall be liable only for the cost of
repair to damaged Radios arising from the negligence or willful
misconduct of City, its employees, agents, or contractors.
7 INsURANCE. Memcom -shall obtain and maintain at;ùl-times during the term of this
Use Agreement Commercial General Liability insurance and Commercial Automobile
Liability insurance protecting Metricom in an amount not less than One Million Dollars
($1,000,000) per occurrence (combined single limit), including bodily injury and
property damage, and in an amount not less than One Million Dollars ($1,000,000)
annual aggregate for each personal injury liability and products-completed operations.
Right-of. Way Permit and Facility Use Agreement
O·~I' of {Name of Municipalityj:: Metn"com, Inc.
Page 11 of 17
· ,
The Commercial General Liability insurance policy shall name the City, its council
members, officers, and employees as additional insureds as respects any covered
liability arising out of Metricom's performance of work under this Use Agreement.
Coverage shall be in an occurrence form and in accordance with the limits and
provisions specified herein. Oaims-made policies are not acceptable. Such insurance
shall not be canceled, nor shall the occurrence or aggregate limits set forth above be
reduced, until the City has received at least thirty (30) days' advance written notice of
such cancellation or change. Metricom shall be responsible for notifying the City of
such change or cancellation. Prior to any five(5)-year renewal term, pursuant to Section
f.J?L!.œ~..y':~.~__~~m_~.t...fu!LÇ!!Y.m.~.1'_¡:gg!!g§!..!!!!!!Jh~p-ª!!t~~..§Þ_'tI!..þ-!!r.gª-ÜL!!l_g,90d
faith to increase the above minimum insurance amounts, if such an increase is
warranted by industry standards or specific identified risk. Such increase, if any, shall
not be effective until the commencement of such renewal term.
7.1 Filing of Certificates and Endorsements. Prior to the commencement of
any work pursuant to this Use Agreement, Metricom shall file with the
City the required original certificate(s) of insurance with endorsements,
which shall state the following:
(a) the policy number; name of insurance company; name and
address of the agent or authorized representative; name and
address of insured; project name; policy expiration date; and
specific coverage amounts;
(b) that the City shall receive thirty (30) days' prior notice of
cancellation;
(c) that Metricom's Commercial General Liability insurance policy
is primary as respects any other valid or collectible insurance that
the City may possess, including any self-insured retentions the City
may have; and any other insurance the City does possess shall be
considered excess insurance only and shall not be required to
contribute with this insurance; and
(d) that Metricom's Commercial General Liability insurance policy
waives any right of recovery the insurance company may have
against the City.
The certificate(s) of insurance with endorsements and notices shall be mailed to
the City at the address specified in § 8 below.
Right.of-Way Permit and Facility Use Agreement
O'ty of [Name of Municipality}:: Metrirom, Inc.
Page 120117
H7.2 Workers' Compensation Insurance. Metricom shall obtain and
maintain at all times during the term of this Use Agreement statutory
workers' compensation and employers liability insurance in an amount
not less than One Million Dollars ($1,000,000) and shall furnish the City
with a certificate showing proof of such coverage.
7.3 Insurer Criteria. Any insurance provider of Metricom shall be admitted
and authorized to do business in the State of Minnesota and shall carry a
minimum rating assigned by A.M Best & Company's Key Raüng Guide
of "A" Overall and a Financial Size Category of "X" (ie., a size of
$500,000,000 to $750,000,000 based on capital, surplus, and conditional
reserves). Insurance policies and certificates issued by non-admitted
insurance companies are not acceptable.
7.4 Severability of Interest Any deductibles or self-insured retentions must
be stated on the certificate(s) of insurance, which shall be sent to and
approved by the City. "Severability of interest" or "separation of
insureds" clauses shall be made a part of the Commercial General
Liability and Commercial Automobile Liability policies.
8 NOTICES. All notices which shall or may be given pursuant to this Use Agreement
shall be in writing and delivered personally or transmitted (a) through the United
States mail, by registered or certified mail, postage prepaid; (b) by means of prepaid
overnight delivery service; or (c) by facsimile or email transmission, if a hard copy of
the same is followed by delivery through the U. S. mail or by overnight delivery
service as just described, addressed as follows:
if to the City:
CITY OF [NAME OF MUNICIPALITY]
Attn: [NAME OF CONTACT]
[ADDRESS]
[Name of Municipality], MN [ZIP]
if to Metricom:
MEIRICOM, INc.
Attn: Network Real Estate
980 University Avenue
Los Gatos, CA 95032
RÎght-of-Way Permit and Facility Use Agreement
O'~y of [Name of Municipality]:: Metrirom~ Inc.
Page 130117
ht8.1 Date of Notices; Changing Notice Address. Notices shall be deemed
given upon receipt in the case of personal delivery, three (3) days after
deposit in the mail, or the next business day in the case of facsimile, email,
or overnight delivery. Either party may from time to time designate any
other address for this purpose by written notice to the other party
delivered in the manner set forth above.
9 TERMINATION. This Use Agreement may be terminated by either party upon forty
five (45) days' prior written notice to the other party upon a default of any material
covenant or term hereof by the other party, which default is not cured within forty-five
(45) days of receipt of written notice of default (or, if such default is not curable within
forty-five (45) days, if the defaulting party fails to commence such cure within
forty-five (45) days or fails thereafter diligently to prosecute such cure to completion),
provided that the grace period for any monetary default shall be ten (10) days from
receipt of notice. Except as expressly provided herein, the rights granted under this
Use Agreement are irrevocable during the term.
10 AssIGNMENT. This Use Agreement shall not be assigned by Metricom without the
express written consent of the City, which consent shall not be unreasonably withheld,
conditioned, or delayed. Notwithstanding the foregoing, the transfer of the rights and
obligations of Metricom hereunder to a parent, subsidiary, 5\u::eeSS6rs, or financially
viable affiliate of Metricom or to any successor-in-interest or entity acquiring all or
substantially all of Metricom's outstanding voting stock or assets shall not be deemed
an assignment for the purposes of this Use Agreement
11 MISCELLANEOUS PROVISIONS. The provisions which follow shall apply generally to
the obligations of the parties under this Use Agreement
11.1 Nonexclusive Use. Metricom understands that this Use Agreement does
not provide Metricom with exclusive use of the Public Right of Way or
any Municipal Facility and that City shall have the right to permit other
providers of communications services to install equipment or devices in
the Public Right of Way and on Municipal Facilities. City agrees promptly
10 no1:ífy Metricom of the receipt uf a proposal for the installation of
communications equipment or devices in the Public Right of Way or on
Municipal Facilities. In addition, City agrees to advise other providers of
communications services of the presence or planned deployment of the
Radios in the Public Right of Way and/or on Municipal Facilities.
Righl-<Jf-Wa y Permit and Facility Use Agreement
at)' of [Name of Municipality}:: Metricom, Inc.
Page 14 of 17
11.2 Waiver of Breach. The waiver by either party of any breach or violation of
any provision of this Use Agreement shall not be deemed to be a waiver
or a continuing waiver of any subsequent breach or violation of the same
or any other provision of this Use Agreement.
11.3 Severability of Provisions. If anyone or more of the provisions of this Use
Agreement shall be held by court of competent jurisdiction in a final
judicial action to be void, voidable, or unenforceable, such provision(s)
shall be deemed severable from the remaining provisions of this Use
Agreement and shall not affect the legality, validity, or constitutionality of
the remaining portions of this Use Agreement. Notwithstanding the
f.Qr..~gQ!!}.,g/.JÞ.~.J?ª,.r-º~.~._!!&r.~.Jh-ª.U.f..-'.Lf.º.!!!:LQL~.!!.!!).jI!!~!:!-ª.t!Y.~...ªg~.nç'y'...Q.f
competent jurisdiction should declare a provision(s) of Section 4 of this
JJ.~.~....bgr.~m.~!}tj!ly'-ªJj~t....t.hg!l...!h.~.....p.-ªr!!g~.._.~hªn.....~.ª'.ç.h....Þ.~....Qþ.Jjgª~g...JQ
negotiate in good faith to amend Section 4 of this Use Agreement and if,
after one hundred and eighty (180) days from the commencement of
negotiations or such extension thereof that may be agreed by the parties,
the parties are unable to reach agreement on amendments hereto, then
this Use Agreement may be terminated by either party Each party hereby
dedares..-that...it..-weukl....·have··-entered·---inte--·this---Use-·A-greement--and--·eaeh
previsieR hereaf regardless af whctfter aft)' aRe ar mare pravisians may be
dedared--illegal,invalid,·or-uocof\Stitutienal.
11.4 Contacting Metricom. Metricom shall be available to the staff employees
of any City department having jurisdiction over Metricom's activities
twenty~four (24) hours a day, seven (7) days a week, regarding problems
or complaints resulting from the attachment, installation, operation,
maintenance, or removal of the Radios. The City may contact by
telephone the network control center operator at telephone number
(800) 873-3468 regarding such problems or complaints.
11.5 Governing Law; Jurisdiction. This Use Agreement shall be governed and
construed by and in accordance with the laws of the State of [State of
Municipal Entity], without reference to its conflicts of law principles. If
suit is brought by a party to this Use Agreement, the parties agree that
trial of such action shall be vested exclusively in the state courts of
Minnesota, County of [Name of County], or in the United States District
Court for the District of Minnesota.
Rjght-o~Wa y Permit and Facility Use Agreement
Dty 0/ [Name of Municipality]:: Metn"com, Inc.
Page 150117
11.6 Attorneys' Fees. Should any dispute arising out of this Use Agreement
lead to litigation, the prevailing party shall be entitled to recover its costs
of suit up to an amount of Five Thousand Dollars ($5,000.00), including
(without limitation) reasonable attorneys' fees.
11.7 Consent Criteria. In any case where the approval or consent of one party
hereto is required, requested or otherwise to be given under this Use
Agreement, such party shall not unreasonably delay, condition, or
withhold its approval or consent.
11.8 Representations and Warranties. Each of the parties to this Agreement
represents and warrants that it has the full right, power, legal capacity,
and authority to enter into and perform the parties' respective obligations
hereunder and that such obligations shall be binding upon such party
without the requirement of the approval or consent of any other person or
entity in connection herewith, except as provided in § 3.2 above.
11. 9 Amendment of Use Agreement. This Use Agreement may not be
amended except pursuant to a written instrument signed by both parties.
11.10 Entire Agreement. This Use Agreement contains the entire understanding
between the parties with respect to the subject matter herein. There are no
representations, agreements, or understandings (whether oral or written)
between or among the parties relating to the subject matter of this Use
Agreement which are not fully expressed herein.
Rjgh/~f.Way Permit and Fadlity Use Agreement
O'ty 0/ [Name 01 MUIU'dpality}:: Metricom, Inc.
Page 16 of 17
In witness whereof, and in order to bind themselves legally to the
terms and conditions of this Use Agreement, the duly authorized representatives of the
parties have executed this Use Agreement as of the Effective Date.
City.; CITY OF [NAME OF MUNICIPALITY], a Minnesota municipal
corporation
By:
[name typedJ
Its:
Date: . [Year of Agreement Date]
By:
{name lV1JedJ
Its:
Date: , [Year of Agreement Datel
Metricom: METRICOM, INe., a Delaware corporation
By:
[name typedJ
Its:
DatEi: . [Year of Agreement Date]
Right-of-Way Permit and Facility Use Agreement
Gty of [Name 0/ MumcipalityJ:: Metrirom, Inc.
Page 170117
CHANHASSEN
Right-of-Way Permit and Facility Use
Agreement
T'- HlS-RIGJIT..GF-WAYUSE AGREBMENT (this "Use Agreement") is dated as of
(the "Effective Date"), and entered irl1D by and between
the CITY OF CHANHASSEN ,a Minnesota local government unit (the "City"),
and MFTRTrOM, INC.,..a n...IA",are corporation ("Metricom").
Recita1s
A. Metricom owns, mairltairls, and operates, irI accordance with regulations
promulgated by the Federal Communications Commission, a mobile digital data
cOillillu"iuttiu"" radio network- known as Ricochet®, utilizing Radios (as defirled irI
§ 1.10 below) and related equipment certified by the Federal Communications
Commission.
B. For purpose of operating Ricochet®, Metricom wishes 1D locate, place,
attach; insfaH-rúp""ale, and- .á,~,taj"Radios- irI the Public Right of Way (as defined irI
§ 1.9 below) on facilities owned by the City, as well as on facilities owned by third
parties thereirl.
Aq.:teement
Now, tIïerefòre, for good and valuable consideration, the receipt and
suffi€iency~ of which· are-hefeby a€knowledged; the padies agree 1D the followirlg
covenants, terms, and conditions:
1 DEFINTI10NS. The followirlg definitions shall apply generally 1D the provisions of
this Use Agreement
1.1 Adjusted Gross Reve",æs. "Adjusted Gross Revenues" means the gross
dollarllmountreeeivedby Metricomfor its Services (as defined irI § 1.11
below) provided 1D subscribers with billing addresses irI the City,
excludirlg (i) any utility users' fax, communications fax, or similar fax or
fee; (ii) local, state, GI' federal--faxes- that have been billed 1D the subscribers
and separately stated on subscribers' bills; and (ill) revenue uncollectible
from subscribers (i.e., bad debts) with billing addresses irI the City that
was. previously inrl11C1pd.in.AdjustedGross Revenues.
Righi-of-Way Permit and Facility UseAgreemenf
Oty ofChanhassen :: Metricom, lac.
Page 10[16
1.2 City. "City" means the City of CHANHASSEN .
1.3 Fee. "Fee" means any assessment, license, charge, fee, imposition, tax, or
levy of general application to entities doirlg business irI the City lawfully
imposed bY-aRY governmental OOdy (but excludirlg any utility users' tax,
franchise fees, communications tax, or similar tax or fee).
1.4 Installation DRte. "Installation Date" shall mean the date that the first
Radio is installed by Metricom pursuant to this Use Agreement
1.5 ÙlWS. "Laws" means any and all statutes, constitutions, ordinances,
resolutions, regulat:ìÐß6; judicial decisions, rules, tariffs, administrative
orders, certificates, orders, or other requirements of the City or other
governmental agency havirlg joirlt or several jurisdiction over the parties
to this_Use. þ.gr_mPnt _
1.6 Metria»u.. "MetRrom" IlWImS- Metricom, -Inc., a corporation duly
organized and existing under the laws of the State of Delaware, and its
lawful successors, assigns, and transferees.
1.7 MPUc." MPUC' means the Minnesota Public Utility Commission.
1.8 Mwticipal Faciliti£s. "Municipal Facilities" means City-owned street
light poles, lighting fi>.-'lures, eledroliers,- or other City-owned structures
located withirl the Public Right of Way and may refer to such facilities irI
the sirlgular or plural, as appropriate to the context irI which used.
1.9 Public RigId of Way. "Public Right of Way" means the space irI, upon,
abov-e, along,anoss, andgver the public streets, roads, highways, lanes,
cartways, courts, ways,alIeys,-boulevards, sidewalks, bicycle lanes, and
places, irlcludirlg all public utility easements and public service easements
as. the same now or may hereafter exist,. that are under the jurisdiction of
the City. This term shall not irlclude county, state, or federal rights of way
or any property owned by any person or entity other than the City, except
-as-provided by applicable Laws or pu,,,uantio an agreement between ihe
City and any such person or entity. If the City adjusts its boundaries
pursuant to M.itm. Stat, Chap. 414 through annexation, irlcorporation,
combirlation, detachment, or other means, this Use Agreement shall be
birldirlg on the entire area withirl tile City's boundaries after the
adjusookeut -
1.10---- Rmfiu; "Radio"me-ans-lhe-radio eqtripment;whether referred to sirlgly or
collectively, to be installed and operated by Metricom hereunder.
Rigld-cif-Way Permit and FacUity Use Agreement
City ofClumhassen :: Metricom, lxc.
Page 20f 16
1.11 Serviœs. "Services" melmS the mobile digital communications services
provided through Ricochet® by Metricom, which services consist
principally of wireless Inæn1et. e-mail and local area network access and
may include transmission of sound and video images; provided, however,
tña.t "Services'- shall ï,ot be' construed, interpreted or applied to authorize
either real time telecommunications services (including telephone and
voice) or video or cable television communications services except as may
be considered--smndard-futemet content
Z- .. TËRM. This uSe Agreement shaIl be effective as of the Effective Date and shall
extend for a term of nine (9) years commencing on the Installation Date, unless it is
earlier terminated by either pari)" in accordance with the provisions herein. The term
of this Use Agreement·shaltbe--renewedautomatica.lly for three (3) successive terms of
five (5) years each on the same terms and conditions as set forth herein, unless either
party notifies the other of its intention not to renew not less than one hundred
eighty (180) calendardays priorto-CVllu..ucm..ement of the relevant renewal term.
3 SCOPEul'Th.f,AGIŒEMENr.- Any,md-aitrighwexpressly granted to Metricom under
this Use Agreement, which shall be exercised at Metricom's sole cost and expense, shall
be subject to the prior and continuing right of the City under applicable Laws to use
any-andaHpartsof the Pttblic Right of Way exclusively or concurrently with any other
person or entity and shall be further subject to all deeds, easements, dedications,
conditions, covenants, restrictions, encumbrances, and claims of title of record which
may affect·ire Publi£ Right otWay. NoIhing in thi&Use Agreement shall be deemed to
grant, convey, create, or vest in Metricom a real property interest in land, including any
fee, leasehold interest, or easement Any work performed pursuant to the rights
granæd under.. this- Use Agreement shall be subjed tuthe reasonable prior review and
approval of the City.
3.1 Attachment to Municipal Facilities. The City hereby authorizes and
permits Metricom to enter upon the Public Right of Way and to locate,
place,. attach, install. operate,- m,,;nm;'l,,_ remove, reattach, reinstall,
relocate, and replace Radios in or on Municipal Facilities for tl1e purposes
of operating Rícoclièt® and providing Services. In addition, subject to the
provisions.of§ 4.3 below, Metricomshall have the right to draw electricity
for the operation of the Radios from the power source associated with
each such attachment Ib Municipal Facilities.
3Z Attachment to Tliird-P-arfy P-roperty. Subject to obtaining the permission
of the owner(s) of the affected properly, the City hereby authorizes and
permits Metricom to enter upon the Public Right of Way and to attach,
install; ope-rate; maintain; remove, reattach, reinslall, relocate, and replace
Right-of-Way Permit and FacHity Use Agrument
City ofChanhAssen :: Metrico... Inc.
Page3ofI6.
such number of Radios irI or on poles or other structures owned by public
utility companies or other properly owners locatEd withirl the Public
Right of Wa.y as_ IlUI¥. be permittEd by the public utility company or
properly owner, as the case may . be for the purposes of operating
Rícochet® and- provid"fug Services. Upon request, Metricom shall furnish
to the City documentation of such permission from the irldividual utility
or properly owner responsible. City agrees to cooperatE with Metricom,
at no cost or expense to City, irI obtaining where necessary the consents of
third-party owners of property located irI the Public Right of Way.
3.3 No InteIference. Metricom irI the pertormance and exercise of its rights
and obligations under this Use Agreement shall not irltErtere irI any
manner with the existence and operation of any and all public and privatE
rights of way, sanitary sewers, watEr mairls, storm drains, gas mairls,
poles, ænal and underground electrical and tElephone wires, electroliers,
cable tElevision;· and-- other-ÌIÚonnation or communications, utility, or
municipal property, without the express'written approval of the owner or
owners of the affectEd property or properties, except as permitted by
applicable Laws- or this· Use-Agreement City agrees to use reasonable
efforts to require the irlclusion of the same or a similar prohibition on
irltErterence as that statEd above irI all agreements and franchises City
may enter into aiœ:!' the Effective DatE with other information or
communications providers and carriers.
3.3.1 InteIfereftceRfiolufiort. Any actual or anticipatEd radio
irlterterence caused by either the presence of the Radios or the presence of
any such other communications equipment or devices irI the Public Right
of Way shall be' resolved by Metricom and - any such other providers
without cost to City on the basis of the applicable rules, regulations,
practices, and procedures of the FCC. City agrees to assist Metricom irI the
resolution many stl£h imenerefl£e dispute- at Metricom's sole expense.
3,4 C"....I'I:;,.....co: with-I;aws; Met..i...om-shaH comply with all applicable Laws
irI the exercise and performance of its rights and obligations under this
Use Agreement The Right-of-Way Management Reimbursement
provided for in- §-4.1 below shall be irllieu of all other City fees, with the
exception of any City permits required for the irlitial irlstallation of the
Radios. City shall promptly respond to Metricom's filings and shall
otherwise cooperaœ with Metricom in facilitating the deployment of
Ricochet® irI the Public Right of Way irI a reasonable and timely manner.
RigJd-of·Way Permit and Facility Use Agreement
City ofCllanhassen :: Metrú::om, lnc.
Page 40f 16
3.5 Location and Installation of Radios. The proposed locations of
Metricom's planned initial installation o{ Radios shall be determined
s11bjed to the reasonable prior review and approval o{ the City, promptly
after Metricoms review o{available street light maps and prior to
deployment of the Radios. Upon the completion o{ installation, Metricom
promptly shallíumish to the City a pole list showirlg the exact location of
the Radios irI the Public Right of Way.
4 COMPENSATION; U'I'IIJTY CHARGES. Metricom shall be solely responsible for the
payment o{ all lawful Fees fu connection with Metricom's performance under this Use
Agreement, irI accordance with the terms set forth below.
4.1 R1gJ>t-of-Wa.y ~anagP1"'P11t Reim.bursement. In order to reimburse City
for any right-of-way management costs it may irlcur during the term of
thiS USe Agreement (öl1öwfug the initial deployment o{ the Radios in
connection with Metricom s entry upon and deployment within the Public
Right of Way, Metricom shall pay to the City, on an annual basis, an
amountequalm-onepercent-(l%) of-Adjusted Gross Revenues (the "Right-
of-Way Management Reimbursement'), which amount may be collected
from subscribers of the Services with billing addresses in the City and
,,,.......;tkJ. to City as provided- he,,,.iJ.~ The parties agree that such
Right-of-Way Management Reimbursement represents a fair estimate of the
costs of continuing management of the Public Right of Way utilized by
Metrkomand that sum Right-ot:-Way Management Reimbursement is not a
franchise fee or payment for use of the Public Right of Way. The
Right-of-Way Management Reimbursement shall be payable for the period
commencirlg upon- the date IhatServices are offered to commercially payirlg
subscribers within the City using Radios installed pursuant to this Use
Agreement and endìng on the date of termination of this Use Agreement,
and shall be due onar before the 45th day after the end of each calendar year
or fraction thereof. Within forty-five (45) days after the terminatiorí of this
Use Agreement, compensation shall be païd {ör the period elapsirlg sirlce the
-.=i -of 1helast calendar year for which ...'OíhpeUS8.tion i1as been paid.
Metricom shall furnish to the City with each payment of compensation
required by this æction a·sta1ement;:executed by an authorized officer of
Metricom or his or her designee, showirlg the amount of Adjusted Gross
Revenues for the period covered by the payment If Metricom discovers any
error in the =t amount ofcump="",tion due, the City shall be paid
withirl thirty (30) days of discovery of the eITOr or determination of the
correct amount Any overpayment to the City through error or othelWise
shall be refunded OF offset against the next payment due. Acceptance by the
Right-of-Way Permit and Facility Use Agreement
oty of ChanhasseJt :; Metricom, lac.
Page5of16
City of any payment due under this section shall not be deemed to be a
waiver by the City of any breach of this Use Agreement occurring prior
thereto, nor shall the. acceptanœby the. City of any such payments preclude
the City from later establishirtgthat a larger amount was actually due or
from collecting any balance due to the City. City may, at any time, at
City's sole option, upon ninety (90) days written notice, require Metricom
to discontinue the Right-of-Way Management Reimbursement
compensation. Upon receivirtg such notice Metricom shall, no later than
nirtety (90) days after receivirlg such notice, cease making all
compensation payments that would have been payable after such ninety
(90) daynotiœperiod; If City requires such a discontinuation of Right-of-
Way Management Reimbursement compensation, the City may then
charge, on an annual basis, its actual Right-of-Way Management costs
(pursuant to Minnerota-Sftttutes SecH237.162, Subd. 9 and Sec. 237.163,
Subd. 2 (b», that areirlcurred after the expiration of the ninety (90) day
period described above. Metricom shall only be liable for such actual
ann_l- Right-of-Way.management costs to-the extent such costs exceed
the annual retail value of the service subscriptions for which the City is
eligible under Section 4.5 of this Agreement
4.1.1 Reduction of Right-of-Way Management Reimbursement by
Amount.- of. Utility Users. 01' Communications Tax.
Notwithstandirlg anythirlg to the contrary irI this Use Agreement, if
the Services are subject to a utility users tax, communications tax,
or other similar tax or fee. which accrues to the City by operation of
the City's Municipal Code or other applicable law, then the amount
of the Rïght~of-Way ManagementReimbursement shall be reduced
by the amount of the applicable utility users tax, communications
tax, or such other similar tax or fee.
4.1.2 Accounting Matters. Metricom shall keep accurate books of
account at its prirlcipal office irI Los Gatos or such other location of
its choosing for -the purpose~f determiRirlg the.amounts due io the
City under § 4.1 above. The City may inspect Metricom's books of
account relativetotfre City at any time during regular busirless
hours on thirty (30) days' prior written notice and may a.udit the
books from time to time at the City's sole expense, but irI each case
only to the extent neœssa:ry to confirm the accuracy of payments
due under § 4.1 above. Alternatively, Metricom will make
available for inspection by the City at Metricom's office located
closest to tRe City, upon thirty (30) days prior written notice, the
Right-of-Way Permit and Facility Use Agreement
City ofChanhassen ;; Metricom, Inc.
Page6of16
relevant portions of its books and records as reasonably necessary
to confirm the accuracy of any payments due the City under this
Use Agreement. The. City agrees to hold in confidence any
non-public information it learns from Metricom to the fullest extent
permitæd by taw.
4.2 Annual Fee. As compensation for the use of Municipal Facilities,
Metricom shall pay .to the City an annual fee (the" Annual Fee") in the
amount of Sixty Dollars ($60.00) for the use of each Municipal Facility, if
any, upon which a Radio has been installed pursuant to this Use
Agreement Where light poles or other facilities to be used by Metricom
within the Public Right of Way are owned by a utility, such annual fee
shalt be paid to the appropriate utility and not to the City. The aggregate
Annual Fee with respect to each year of the term shall be an amount equal
to the number of Radios installed on Municipal Facilities during the
preceding-twelve- (12} wvutl." multiplied by the Annual Fee, prorated as
appropriate, and shall be due and payable not later than forty-five (45)
days after each anniversary of the Installation Date. City represents and
covenants that City owns-all Munieil'al Fa€ili-äe& for lheuse of which it is
collecting from Metricom the Annual Fee pursuant to this§ 4.2.
4.2.1 CPI Adjustment. Effective commencing on the fifth (5th)
anniversary of the Installation Date and continuing on each fifth
(SIh) anniveTSIU'Y thereafter during the term, the- 4nnual Fee with
respect to the ensuing five-year period shall be 'increased by a
percentage amount equal to the percentage increase, if any, in the
Us., Der"rtmPfÚ. of. Labor, Bureau of. Labor 5taJ:jstics Consumer
Price Index (All Items, All Consumers, 1982-1984=100) which
occurred during tfie previous five-year period f~r the Midwest
Urban Region Consolidated Metropolitan Statistical Area.
4.3 FI..rtTÍrity C'h:"~g"" Melricom shall be solely responsible. for the payment
of all electrical utility charges to the applicable utility company based
upon the Radios' usage of electricity and- applicable fu.riffs:-
4.4 Reimbursement of City's P"rojëct Rëview EXpenses. Metricom shall
reimburse. the City at City's standard rates for reasonable attomeýs fees
and other project review expenses relating to the preparation and review
of ffiis Use Agreement, promptly upon receipt of iten$ed bills, paid
invoices, and other such documentation as Metricom shall reasonably
require, and in a total amount not to exceed One Thousand Dollars
($1,000); The reimburæmenrpmvided furinthis-§-4::4: shaJl not replace or
JUgbJ-<f-Way Permit and Facility Use Agr.....ent
City ofClumhasserr :: Metrkom, lite.
Page7of16
excuse Metricom from the payment of any applicable permit fee for work
undertaken pursuant ID the initial installation of the Radios.
4.5 Municipal Subscriber Program. City shall have. the right throughout the
term .gÍ·this Use Agreement ID r~eive up ID the maximum number
specified below (based upon the City's population) of free Ricochet® basic
service subscriptions. The number öffi:ee subscriptions which the City
may receive shalL be. determined in accor<4mce with the City's official
population, as shown on the latest available census data, as follows: (a) for
municipalities with a population of less than 100,000, up ID a maximum of
ten (10) free subscriptions; (b) for. municipalities with a population of
between 100,000 and 249,000, up ID a maximum of fiflEen (15) free
subscriptions; (c) for municipalities with a population of between 250,000
and 500,000, up ID a maximum of twenty (20) free subscriptions; and
(d) for municipalities of over 500,000, up ID a maximum of twenty-five (25)
free t:>ukuil'liulIt:>. Ciiy shan J=il;'utre one person who shall be
responsible for ordering and receivirlg any subscriptions. To take
advantage of this program, the designated irldividual should conta.ct
Metricom's Network Real Estate-lJepftrtmeflt at the address stated irI § 8
below City's right ID use the subscriptions shall commence at the time
that Ricochet® service is commercially available irI the City and shall
exlend.until the expir~ of- the term- of \his.. Use Agreement or through
the length of time that Radios are deployed irI th-e Municipal Right of
Way, whichever is longer. City's use of the subscriptions shall be subject
ID the shmc1RTd. Ricochet® terms and condi.tions of use. City understands
and agrees that modems and equipment required ID utilize the
subscriptions and' any addifíonal service subscriptions or service options
the City may desire may be obtained from an authorized retailer at market
rates current from time ID time. City shall use all subscriptions provided
pursuant ID this section solely for its own use and shall not be entitled ID
resell, distribute, or otherwise pel'lIlitthe use of same by any other person,
excepting a local public entity that provides public service withirl the
wl.lAJ1ale bOulId/lde5 of the-Ciiy (e.g;, J..IIu.l..;..ipal schools, public safety, or
fire deparbnents, etc.). The level of benefits and service provided ID City
by Metricom as "basic service" shall not be diminished or reduced during
the term oflhis-- Use- Agreement or renewal thereof or prior ID its
cancellation or termination, as the case may be.
4.6 Most-Favored Municipality Clause. Should Metricom after the parties'
execution and delivery of this Use Agreement enter irllD a right-of-way
pemút and fa€ility use agreement with another municipality of the same
Right-cf-Way Permit and Facüity Use AgrmnerJt
City ofChanhassen. :: Metr;com, Inc.
Page 80[16
size or smaller than the Cit:y as compared with cities in the Minnesota
counties of Anoka, Carver, Dakota- Hennepin, Ramsey, Scott and
Washington, which.agreementconlains either (a) a higher Right-of Way
Management Reimbursement as described in § 4.1 above or (b) a higher
Arutual Fee as described iri §Æ2 above or (c) a higher amount of
Reimbursement of City's Project Review Expenses as described in § 4.4
above, Cit:y shall have the right to require that Metricom modify this Use
Agreement w' incorporate fñe same or substantially similar superior
benefits and such other terms.
5 RELocATION AND DISPLACEMENT OF RADIOS. Metricom understands and
acknowledges that Cit:y may require Metricom to relocate one or more of its Radios,
and Metricom shill atCity'"sditection relocatesueb Radios at Metricom's sole cost and
expense, whenever Cit:y reasonably determines that the relocation is needed for any of
the following purposes: (a) if required for the construction, completion, repair,
reIocation,orma:i:nfena:nœ of-aCity- project; (b-)- because- the Radio is interfering with or
adversely affecting proper operation of Cit:y-owned light poles, traffic signals, or other
Municipal Facilities; or (c) to protect or preserve the public health or safet:y. In any
sueh case, Cit:y shft-Il·~l'easÐl1tIWe- efforts to- affurd Metricom a reasonably equivalent
alternate location with no dut:y to incur any expenses orcöst to Cit:y. If Metricom shall
fail to relocate any Radios as requested by the Cit:y within a reasonable time under the
cin;umsÚlIK:es- in accordam:e with- the foreggmg provision, Cit:y shall be entitled to
relocate the Radios at Metricom's sole cost and expense; Witllout further notice to
Metricom. To the extent the Cit:y has actual knowledge thereof, the Cit:y will attEmpt
promptly In inform. Mprnmm of the displAl'pmPtltor removal of any pole on which any
Radio is located.
5.1 Relocations at Metricom's Request. In the event Metl'icom desires to
relocate any Ritdíos from one MUnicipal Facilit:y to another, Metricom
shall so advise City. Cit:y will use reasonable efforts to accommodate
Metricom by making another reasonably equivalent Municipal Facilit:y
available for use in accordance willi and subject to the terms and
conditions of this Use Aueement
5.2. Damage to Public Rigb.t of Way. Whenever the removal or relocation of
Radios is required or permitted under this Use Agreement, and such
removal or relocation shall cäti.Se the Public Right of Way to be damaged,
Metricom, at its sole cost and expense, shaU'promptly repair and return
the Public Right of Way in whieb the Radios are located to a safe and
satisfactory conditimrm accordance with applicable Laws, normal wear
and tear excepted. If Metricom dciëS not repair the site as just described,
then the Cit:y shall have the option, upon fifteen (15) days' pl'ior written
Right..cf-way Permit and Facility Use Agreement
City of Chanhassen :: Mdricom, IIIC.
Page 90116
notice to Metricom, to perform or cause to be performed such reasonable
and necessary work on behalf of Metricom and to charge Metricom for the
proposed costs. to be. incurred or the actual costs incurred by the City at
City's standard rales. Upon the receipt of a demand for payment by the
City, Metricörit shaIrpl'omptly reimburse the City for such costs.
6 INDEMNIFICATION AND WAIVER. Metricom agrees to indemnify, defend, protect, and
hold harmless the City, its council members, officers, and employees from and against
any and all claims, demands, losses, damages, liabilities, fines, charges, penalties,
adritÏÌ1iStrafiv'ë and judìcfu1 proceedirlgs and orders, judgements, and all costs and
expenses incurred irI connection therewith, irlcludirlg reasonable attorney's fees and
costs of defense (collectively, the "Losses") directly or proximately resulting from
Metricom's activities undertaken pursuant to this Use Agreement, exceptto the extent
arisirlg from or caused by the negligence or willful misconduct of the City, its council
members, officers, employees, agents, or contractors. The foregoirlg notwithstandirlg,
Metrirom-shaII defend and- mdemnify the City, and-its officers and employees, even irI
the case of negligence, unless the allegations allege (a) irldependent negligence on the
part of the City, its officers and employees or (b) a wrongful act or omission on the part
of the-Cityor its effieet'&Of employees; Metricom sha-Il aJse-defend and irldemnify the
City, its officers and employees, even irI the case of negligence, if the allegations are
based on the City's or its officers or employees' negligence or otherwise wrongful act
oromissioR in issuing a· pennit to Metri{;om or appl'Ovirlg this Use Agreement, or irI
failirlg to properly or adequately irlspect or enforce compliance with the terms,
conditions or purpose of any permit issued to Metricom.
6.1 Waiver of Claims. Metricom waives any and all claims, demands, causes
of action, and rights it-may assert-against the ~. on account of any loss,
damage, or irljury to any Radio or any loss or degradation of the Services
as a result of any event or occurrence which is beyond the reasonable
control of the City or on account of City's exercise of its regulatory or
police powers.
6.2 Limitation of City's Liability. The City shall be liable only for the cost of
. repair to damaged Radios arisirlg from the negligence or wilHul
miscond uct of City, its employees, agents, or contractors.
7 INsURANCE.. Metricom shall.obtain and maintain atalUimes durirlg the term of this
Use Agreement Commercial General Liability irlsurance and Commercial Automobile
Liability insurance protecting Mëtricom irI an amount not less than One Million Dollars
($1,000,000) per occurrence (combirled sirlgle limit), irlcludirlg bodily irljury and
property damage, and irI an amount not less than One Million Dollars ($1,000,000)
annual aggregate for each personal irljury liability and products-completed operations.
Right-of-Way Permit and Facüity Use Agreemmt
City o/Chanhassen :: Metrico"" Inc.
PRge100f16
The Commercial General Liability insurance policy shall name the City, its courlcil
members, officers, and employees as additional insureds as respects any covered
Iiability_arising_out of MetriconLsHperformance of work urlder this Use Agreement
Coverage shall- be irI an occurrence form -and irI accordance with the limits and
provisiOns specified hereirl:- CJa:ím&.made policies are not acceptable. Such insurance
shall not be canceled, nor shall. the occurrence or aggregate limits set forth above be
reduced, urltiI the City has received at least thirty (30) days' advance written notice of
such cance11ll.tion Or change. Memcom shall be responsible for notifyirlg the City of
such change or cancellation. Prior to any five(5)-year renewal term, pursuant to
Section 2 of this Use Agreement, the parties may irI good faith bargain to irlcrease the
abovemÎIwHuu,ÎIu>uli:I11C!! amounts, if such an irlcrease is warranted by irldustry
standards. Such irlcrease, if any, shall not be effective urltiI the commencement of such
renewal term. Prior to any five (5)-year renewal term, pursuant to Section 2 of this Use
Agreen.ent, the-City mtty request-andthe-pttrlies--shaHbargain irI good faith to irlcrease
the above minimum insurance amourlts, if such an irlcrèase is warranted by irldustry
standards or specific identified risk. Such irlcrease, if any, shall not be effective urltiI
the-commerI<Zement of such- renewal!erm.
7.1 Filittsof Ceftifie~attd End6l'8£Dteats. Prior·1D the commencement of
any work pursuant to this Use Agreement;- Metricom shall file with the
City the required original certificate(s) of insurance with endorsements,
whichshaU staæ- the followmg:
(a) the pelky numbeF; name of. insurance company; name and
address of the agent or authorized representative; name and
address of insured; project name; policy expiration date; and
specific.coverageamc:lunts;
(b) that the City sltall receive thirty (30) days' prior notice of
cancellation;
(c) that Meh'icom's Commercial General Liability insurance policy
is primary as respects any other valid or collectible insurance that
1he CiJ:y may ¡x>æess,mcludirlg any self-insured retentions the City
may have; and any other insurance the City does possess shall be
considered excess insurance only and shall not be required to
contribuœ with this insurance; and
(d) that. Meuirom's Gmlmercial General Liability insurance policy
waives any right of recovery the insurance company may have
against the City.
R;glrt-of-Way Permit and Fadlity Use Agree,nent
City ofChanhassen :: Metricom, lnc.
Page l1of16
The certificate(s) of insurance with endorsements and notices shall be mailed to
the City at the address specified irI § 8 below.
7.2 Workers' Compensation Insurance. Metricom shall obtain and maintain
at all times--.during the term-of this- Use Agreement statutory workers'
compensation and employer's liability insurance irI an amount not less
than One Million Dollars ($1,000;000) and shall furnish the City with a
certificateshowirlg proof of such coverage.
7.3. 1Asurer..Criterú.~. Any. insurance provider of Metricom shall be admitted
and authorized to do busirless irI the-State of Minnesota and shall carry a
minimum rating assigned by A.MBest & Company's K£y Rating Guide of
",N' Overall.and a Financial Size Category of "X' (i.e., a size of
$500,000,000 to $750,000,000 based on capital, surplus, and conditional
reserves). Insurance policies and- certificates issued by non-admitted
insurance companies are not acceptable.
7.4 Severability of Interest. Any deductibles Qr self-insured retentions must
be stated on the certificaie(s) of insurance, which shall be sent to and
approved by the City. "Severability of irlterest" or "separation of
insureds" clauses shall be made a part of the Commercial General
Liability and Commercial Automobile Liability policies.
8 NOTICES. All notices which shall or may be given pursuant to this Use Agreement
shall be in writing and delivered personally or transmitted (a) through the United
States mail, by registered or certified mail, postage prepaid; (b) by means of prepaid
overnight delivery service; or (c) by facsimile or email transmission, if a hard copy of
the- same- is followed by del:iyery through the- U. S; mail or by overnight delivery
service as just described, addressed as follows:
if to tire City:
CITY OF CHANHASSEN
Attn: City Manager - Scott Botcher
690City Center Drive
Chanhassen, MN 55317-0147
if to Metricom: .
METRK:OM,INc.
Attn: Network Real Estate
980 University Avenue
Los. Gatos,.CA 95032
Right-oJ-Way p"",it and Facility Use Agreement
City ofChanhnssen :: Melricom, Inc.
Pngel2of16
, .
8.1 Date of Notices; Changing Notice Address. Notices shall be deemed
given upon receipt irI the case of personal delivery, three (3) days after
deposit.irI the. mail. or the nextbusiness day irI the case of facsimile, email,
or overnight delivery. Either party may from time to time designate any
other address for this purpoSë· by written notice to the other party
delivered irI the manner set forth above.
9 TERMINATION. This Use. Agr-mPnt.may be terminated by either party upon forty
five (45) days' prior written notice to the other party upon a default of any material
covenantor term hereof by the offièr party,whidi defaul~is not cured withirl forty-five
(45) days of receiptof written notice of default (or, if such default is not curable within
forty-five (45) days, if the defaulting parly fails to commence such cure withirl
forty-five (45) days' or fails thereafter diligently to prosecute such cure to completion),
provided that the grace period for any monetary default shall be ten (10) days from
receipt of notice. Except as expressly provided herein, the rights granted under this
Use Aö,cclllc"t'a:re-irrevocable-du,¡',g the-term.
10 AsSIGNMENT; This Use' Agreemenrshall not- be assigned by Metricom without the
express written consent of the City, which consent shall not be unreasonably withheld,
conditioned, or delayed. Notwithstandirlg the foregoirlg, the transfer of the rights and
obligations of Metricoml,eJe<u.de, to a parent; subs¡diAty, or firlancially viable affiliate
of Metricom or to any successor-irl-irlterest or entity acquiring all or substantially all of
Metricom's outstandirlg voting stock or assets shall not be deemed an assignment for
thepurposes-of this-Use Agreement
11 MtseELUNEOeS-PROVISIeNS; The-provisions-which follow shall apply generally to
the obligations of the parties under this Use Agreement
11.1 Nonexclusive Use. Metricom understands that this Use Agreement does
not provide Metricom with exclusive use of the Public Right of Way or
any M1ffiieipftl-Faeility andthatCiIy shallhttve the right to permit other
providers of communications services to irtstall equipment or devices irI
the Public Right of Way and on Municipal Facilities. City agrees promptly
to -notify Mettkom-of 'the J'e(;eipt oEa proposa.1 for the installation of
communications equipment or devices irI the Public Right of Way or on
Municipal FäciIities. In addition, City agrees 10 advise other providers of
communications. services of .the. prese.oce or planned deployment of the
Radios irI the Public Right of Way and/ or on Municipal Facilities.
11.2 Waiver of Breach. The waiver by either party of any breach or violation
of any provision of ffiis uše Agreement shall not be deemed 10 be a waiver
or a continuing waiver of any subsequent breach or violation of the same
or any otller provision of this Use Agreement
Righl-oJ-Way Permit and Facility Use AgræJllent
City of Cha"ha.... :: Metrico.... J"e.
Page 13of16
, .
11.3 Severability of Provisions. If anyone or more of the provisions of this
Use Agreement shall be held by court of competEnt jurisdiction in a final
judicial action to be void, voidable, or unenforceable, such provision(s)
shall be deemed severable from the remaining provisions of this Use
Agreement and shall not affeCt the legality~ validity, or constitutionality of
the remaining. portions of this Use .Agreement Notwithstanding the
foregoing, the parties agree that if a court or administrative agency of
competEnt jurisdiction should" declare a provision(s) of Section 4 of this
Use Agreement invalid, then the parties shall each be obligated to
negotiate in good faith to amend Section 4 of this Use Agreement and if,
afterorœ- lumJœd-and eighty (180) days from the commencement of
negotiations or such extension thereof that may be agreed by the parties,
the parties are unable to reach agreement on amendments hereto, then
this-Use Agret:H,CI'Itmaybe-iermÌflftted byeifuer party.
11.4 Conta:ctingM.:h~"UUl.Metricom shall be available to the staff employees
of any City department having jurisdiction over Metricom's activities
twenty-four (24) hours a day, seven (7) days a week, regarding problems
or complaints-· resulting from the- attachment, installation, operation,
maintenance, or removal of the Radios.' -The City may contact by
telephone the network control center operator at telephone number
(8OOf873-3468-regat'ding such problems or complaints.
11.5 GEWeming Law¡- Jurisdk-tiÐnö This Use Agreement shall be governed and
construed by and in accordance with the laws of the State of Minnesota,
without reference to its conflicts of law principles. If suit is brought by a
party to this Use Agreement,.the pat'tiesagree that trial of such action
shall be vested exclusively in the state courts of Minnesota, County of
Càrver, or in the United Stares District COurt for the District of Minnesota.
11.6 Attorneys' Fees. Should any dispute arising out of this Use Agreement
lead to litigation,. the prevailing party shall be entitled to recover its costs
of suit up to an amount of Five Thousand Dollars ($5,000.00), including
(wifI10ut limitation)"reasonable attorneys' fees.
11.7 Consent Criteria. In any case where the approval or consent of one party
hereto is required. requested or otherwise to be given under this Use
Agreement, such party shall not unreasonably delay, condition, or
withhold its approval or consent
11.8 KepresentatiOits andWóUTanties. Eacli' of the parties to this Agreement
represents and warrants that it has the full right, power, legal capacity,
and authority to enter into and perform the parties' respective obligations
Right-of-Way Permit and Facility Use Agreement
Oty ofChanhassen :: Metricom. lac.
Page 14Ðf16
hereunder and that such obligations shall be binding upon such party
without the requirement of the approval or consent of any other person or
entity in connection herewith.- except as provided in § 3.2 above.
11.9 Amendment of- Use Agreemenl This Use Agreement may not be
amended except pursuant to a written instrument signed by both parties.
11.10 Entire Agreement. This Use Agreement contains the entire
understanding between the parties with respect to the subject matter
herem.. There are no representations, agreements, or understandings
(whether oral or written) between or among the parties relating to the
subfect matter oftfiìS Use A:greement which are not fully expressed herein.
RigllI-of-Way Pernút and Facility Use Agreement
City ofC¡"mhasseJt :: Metricom, Inc.
Page 15of16
In wit n e ssw her e 0 f I and irI order to birld themselves legally to the
terms and conditions of this Use Agreement; the duly authorized representatives of the
parties haveexeettœd this Uæ Ag,eeII.ent ðßof the Effective Date.
City: em OF CHANBASSEN , a Minnesota municipal corporation
By:
Scott Bob:her
. ¡...mefypt>lJ
Its: City Manager
Date:
By:
Nancy Mancirlo
{fUlme typed]
Its: Mayor
Date:
Metrico1ll:
METRICOM; INC., a Delaware corporation
By:
/1l1l11lCtypedj
Its:
Date:
Right-of-Way Permit aJ/d Facility Use Agreement
City ofClumhassen ;: Metricom, Inc.
Pas, 160[ 16