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ORD 1999-24TOWN OF TROPHY CLUB, TEXAS ORDINANCE NO. 1999- 24 AN ORDINANCE OF THE TOWN OF TROPHY CLUB, TEXAS WHEREBY THE TOWN OF TROPHY CLUB, TEXAS AND METRICOM, INC. AGREE THAT, FOR THE PURPOSE OF INSTALLING AND MAINTAINING METRICOM'S WIRELESS DIGITAL DATA COMMUNICATIONS RADIO NETWORK KNOWN AS RICOCHET, METRICOM MAY LOCATE, PLACE, ATTACH, INSTALL, OPERATE AND MAINTAIN RADIOS ON FACILITIES OWNED BY THE TOWN OF TROPHY CLUB, AS WELL AS FACILITIES OWNED BY THIRD PARTIES, LOCATED IN MUNICIPAL RIGHTS-OF-WAY; PROVIDING DEFINITIONS; PROVIDING A TERM CLAUSE; PROVIDING A SCOPE OF ORDINANCE CLAUSE; PROVIDING A COMPENSATION CLAUSE; PROVIDING A RELOCATION CLAUSE; PROVIDING AN INDEMNIFICATION AND WAIVER CLAUSE; PROVIDING AN INSURANCE CLAUSE; PROVIDING FOR NOTICE AND TERMINATION; PROVIDING AN ASSIGNMENT CLAUSE; PROVIDING A REPEALER CLAUSE; PROVIDING A PUBLICATION CLAUSE; PROVIDING FOR MISCELLANEOUS PROVISIONS; PROVIDING FOR AN EFFECTIVE DATE AND ACCEPTANCE OF AGREEMENT. WHEREAS, Metricom is in the business of constructing, maintaining, and operating a wireless digital data communications radio network known as Ricochet, a network operated in accordance with regulations promulgated by the Federal Communications Commission, utilizing Radios (as defined in 1.12 below) and related equipment certified by the Federal Communications Commission; and WHEREAS, Subject to reasonable municipal regulations concerning the time, location, manner of attachment, installation, and maintenance of its facilities, Metricom has the right under federal and Texas law to install facilities in municipal public ways; and WHEREAS, Metricom wishes to locate, place, attach, install, operate, and maintain Radios on facilities owned by the Town, as well as facilities owned by third parties, located in the Municipal Right of Way for purposes of operating Ricochet. Town of Trophy Club Ordinace Page 1 of 16 S:ISHAREILA W_WP%TIFFAN Y1TROPHYCL\ORDINANCIMETRiCOM.OR NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF TROPHY CLUB, TEXAS, THAT: SECTION I DEFINITIONS. Whenever used in this Ordinance, the following words and terms shall have the definitions and meanings provided in this section: 1.1 Agency. "Agency" means any governmental or quasi -governmental agency other than the Town, including the Federal Communications Commission and the PUC (as such term is defined in § 1. 12 below. 1.2 Fee. "Fee" means any assessment, license, charge, fee, imposition, tax, or levy of general application to Persons doing business in the Town lawfully imposed by any governmental body (but excluding any utility users' tax, franchise fees, telecommunications tax, or similar tax or fee). 1.3 Gross Revenues. "Gross Revenues" means the gross dollar amount accrued on Metricom's books for Services provided to its customers with billing addresses in the Town, excluding (I) the Right -of -Way Fee, if any, payable pursuant to § 4 et, sect. below and any utility users' tax, telecommunications tax, franchise fees, or similar tax or fee; (ii) local, state, or federal taxes collected by Metricom that have been billed to the subscribers and separately stated on subscribers' bills; and (iii) revenue uncollectible from subscribers (i.e.,) bad debts) with billing addresses in the Town that was previously included in Gross Revenues. 1.4 Installation Date. "Installation Date" shall mean the date that the first Radio is installed by Metricom pursuant to this Ordinance. 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 Town or other governmental agency having joint or several jurisdiction over Metricom, Inc. and the Town of Trophy Club, in effect either as of the Effective date or at any time during the presence of Radios in the Municipal Right of Way. 1.6 AletriconL '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 Alunicipal .Access Program. "Municipal Access Program" means the discount program described in § 4.3 below. 1.8 lwlunicipal Facilities. "Municipal Facilities" means Town -owned street light poles, lighting fixtures, electroliers, or other Town -owned structures located within the Municipal Town of Trophy Club Ordinace Page 2 of 16 S:ISHAREILA W_W PITIFFANYITROPHYCLIORDINANCIMETRICOM.OR Right of Way and may refer to such facilities in the singular or plural, as appropriate Eo the content in which used. 1.9 Ablunnicipal Right of Way. "Municipal Right of Way" means the space in, upon. above (to the height of any Municipal Facilities), along, across and over the public streets, roads, lanes, courts, ways, alleys, boulevards, and places, including all public utility easements and public service easements as the same now or may hereafter exist, that are under the jurisdiction of the Town. This term shall not include county, state, or federal rights of way or any property owned by any Person or Agency other than the Town, except as provided by applicable Laws or pursuant to an agreement between the Town and any such Person or Agency. 1.10 Person. "Person" means an individual, a corporation, a limited liability company, a general or limited partnership, a sole proprietorship, a joint venture, a business trust, or any other form of business entity or association. 1.11 Provisions. "Provision" means any agreement, clause, condition, covenant, qualification, restriction, reservation, term, or other stipulation in this Ordinance that defines or otherwise controls, establishes, or limits the performance required or permitted by Metricom, Inc and the Town of Trophy Club. 1.12 PUC. "PUC" means the Texas Public Utility Commission. 113 Radio. "Radio" means the radio equipment, whether referred to singularly or collectively, to be installed and operated by Metricom hereunder. Any radio or any other equipment or property of Metricom. to be installed or placed hereunder shall not exceed the following size: 14 inches x 10 inches x 6 inches x 1.14 Ricochet©. "Ricochet®" or "Ricochet(D MCDN" means Ricochet© MicroCellular Digital Network, a wireless, MicroCellular digital radio communications network owned and operated by Metricom. 1.15 Services "Services" means the wireless digital communications services provided through Ricochet by Metricom, which may include analog or digital data transmission or other services. 1.16 Town: "Town" means the Town of Trophy Club. Town of Trophy Club Ordinace Page 3 of 16 S:ISHAREILAWWPITIFFANY1TROPHYCLIORI]INANCIIv(ETRICOM.OR SECTION 2 TERM. This Ordinance shall be effective as of the Effective Date and shall extend for a term of five (5) years commencing on the Installation Date, unless it'is earlier terminated by either party in accordance with the provisions herein. The initial five (5) year term of this agreement may be extended for one additional three (3) year terns in accordance with the following: (1) Not less than one hundred and eighty (180) days and no more than two hundred and ten (2 10) days prior to the end of the then existing term (whether the initial term or any subsequent term), Metricom shall give written notice to the Town that the end of the term is approaching; and (2) following the giving of such notice, either party hereto may terminate this agreement by giving ZZ notice of such termination to the other party at least sixty (60) days prior to the expiration of the term then in effect or Town shall provide Metricom notice that the term shall be extended for another three (3) years as set forth herein. SECTION 3 SCOPE OF ORDINANCE. Any and all rights expressly granted to Metricom under this Ordinance which shall be exercised at Metricom's sole cost and expense, shall be subject to the prior and continuing right of the Town under applicable Laws to use any and all parts of the Municipal Right of Way exclusively or concurrently with any other Person or Persons and shall be further subject to all deeds, easements, dedications, conditions, covenants, restrictions, encumbrances, and claims of title of record which may affect the Municipal Right of Way. Nothing in this Ordinance 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 Ordinance may, at the Town's option, be subject to the reasonable prior review and approval of the Town_ 3.1 Attachment to Municipal Facilities. The Town hereby authorizes and permits Metricom to enter upon the Municipal 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 to Persons located within or without the limits of the Town; provided, however, that the right granted to Metricom pursuant to this Section 3.1 is subject to the right of the Town, in its sole discretion, to determine the number of Radios which may be placed on any Municipal Facilities. In addition, subject to the provisions of § 4 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 Town hereby authorizes and permits Metricom to enter upon the Municipal 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 strictures owned by public utility companies or other property owners located within the Municipal Right of Way as may be permitted by the public utility company or property owner, as the case may be; provided, however, that prior to installing more than one radio or other device Town of Trophy Club Ordinaee Page 4 of 16 S:1514A REILAW_W P1TIFFANYITRO P HYCL10RDINANCIMETRICO M.OR used by Metricom on any such pole or structure, Metricom shall first receive the approval of the Town Manager; which approval shall not be unreasonably withheld. Metricom shall furnish to the Town documentation of such permission from the individual utility or property owner responsible. Town agrees to cooperate with Metricom, at no cost or expense to Town, in obtaining where necessary the consents of third -party owners of property located in the Municipal Right of Way. 3.3 No Interference. Metricom in the performance and exercise of its rights and obligations under this Ordinance shall not interfere in any manner with the existence, operation, use, maintenance, repair, construction, replacement, or installation of any and all public and private rights of way, sanitary sewers, water mains or pipes, stone drains, gas mains, poles, aerial and underground electrical and telephone wires, electroliers, cable television, and other telecommunications, service provider, 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 Ordinance. 3.4 Compliance with Laws. Metricom shall comply with all applicable Laws in the exercise and performance of its rights and obligations under this Ordinance. 3.5 Obtaining Required Permits. If the attachment, installation, operation, maintenance, or location of the Radios in the Municipal Right of Way shall require any permits, Metricom shall, if required under applicable Town ordinances, apply for the appropriate permits and pay any standard and customary permit fees. Town shall promptly respond to Metricom's requests for permits and shall otherwise cooperate with Metricom in facilitating the deployment of Ricochet in the Municipal Right of Way in a reasonable and timely manner. The proposed locations of Metricom's planned initial installation of Radios shall be provided to Town promptly after Metricom's review of available street light maps and prior to deployment of the Radios. 3.6 Notice of Location of Radios. Upon the completion of installation, Metricom promptly shall furnish to the Town suitable documentation showing the exact location of the Radios in the Municipal Right of Way. 3.7 Scope of Rights and Obligations. The rights and obligations granted under the terms of this Ordinance apply solely to the Ricochet Micro Cellular Digital Network and inure solely to the benefit of Metricom, Inc. Operation of other transmission networks by Metricom or operation of Ricochet by an entity other than Metricom shall require a separate agreement between the Town and the appropriate entities. Failure to comply with this subsection shall constitute a material violation of the terms of this Ordinance and shall serve as grounds for termination by the Town pursuant to Section 9. 'town of Trophy Club Ordinace Page 5 of 16 S:1SE-IAREILAW_WPITIFFANYITROPHYCL10RDINANCIMETRICOM.OR SECTION 4 COMPENSATION; DISCOUNTS; UTILITY CHARGES. Metricorn shall be solely responsible for the payment of all lawful Fees in connection with Metricom's performance under this Ordinance, including those set forth below. =4.1 Right -of -Way Fees In order to reimburse Town for any costs it may- incur in connection with Metricom's entry upon and deployment with the Municipal Right of Way, and for the reason that the Municipal Rights of Way are valuable public properties acquired and maintained by the Town at great expense to its taxpayers, and because the grant to Metricom is a valuable property right without which Metricom would be required to invest substantial capital in right-of-way or other costs and acquisitions, Metricom shall pay to the Town, on an quarterly basis, an amount equal to five percent (5%) of Metricom's Gross Revenues (the "Right -of -Way Fee"), which amount will be collected from subscribers of the Services with billing addresses in the Town and remitted to Town as provided herein. The compensation provided under flus section shall be payable for the period commencing upon the date that Metricom first provides Services to commercially paying subscribes within the Town using Radios, installed pursuant to this Ordinance, and shall be due on or before the 45th day after the end of each calendar quarter or fraction thereof. Within forty-five (45) days after the termination of flus Ordinance, compensation shall be paid fat- the period elapsing since the end of the Iast calendar quarter for which compensation .has been paid. Metricom shall furnish to the Town 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 Gross Revenues for the period covered by the payment and the number of subscribers in each zip code area. If Metricom discovers that it has failed to pay the entire or correct amount of compensation due, the Town shall be paid by Metricom within thirty (30) days of discovery of the error or determination of the correct amount. Any overpayment to the Town through error or otherwise shall be refunded or offset against the next payment due from Metricom. Acceptance by the Town of any payment due under this section shall not be deemed to be a waiver by the Town of any violation of this Ordinance occurring prior thereto, nor shall the acceptance by the Town of any such payments preclude the Town from later establishing that a larger amount was actually due or from collecting any balance due to the Town. (a) Reduction of Right -of -Way Fee by Amount of Utility Users or Telecommunications Tax. Notwithstanding anything to the contrary in this Ordinance, if the Services are subject to a utility users tax, telecommunications tax, or other similar tax or fee by operation of the Town's Municipal Code or other applicable law of the Town, then the amount of the Right -of -Way Fee shall be reduced by the amount of the applicable utility users tax, telecommunications tax, or such other similar tax or fee; provided, however, that nothing in this Ordinance shall be construed to prohibit the Town from levying the usual general or special ad valorem taxes which the Town is authorized to levy and impose upon real and Town of Trophy Club Ordinace Page 6 of 16 S:\SHAR-C\LAW-WP\TIFFANY\TROPHYCL\ORDrNANC\METRICONI.OR personal property, general sales and use tax, assessments for public improvements, and sums to which the Town may be entitled under Section 51.006 of the Texas Utilities Code (the Teras Public Utility Regulatory. Act). (6) 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 Town under § 4.1 above. The Town may inspect Metricom's books of account relative to the town at any time during regular business hours on ten (10) business days' prior written notice and may audit the books from time to time at the Town's sole expense, but in each case only to the extent necessary to confirm the accuracy of payments due under § 4.1 above. The Town agrees to hold in confidence any non-public information it learns from Metricom to the fullest extent permitted by Law. 4.2 Electricity 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. 4.3 Municipal Access Program. In consideration of Town's execution and delivery of this Ordinance, Town shall have the right throughout the term of this Ordinance to purchase, when such service is commercially available in the Town, up to the maximum number set forth below (based upon the Town's population) of Ricochet basic service subscriptions at the rate of fifty percent (50%) of the regular rate as current from time to time. The number of subscriptions which the Town may purchase at the Municipal Access program rate shall be determined in accordance with the Town'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 twenty (20) discount subscriptions, (b) for municipalities with a population of 100,000 to 249,000, up to a maximum of thirty (3) 0) discount subscriptions; (c) for municipalities with a population of 250,000 to 500,000, up to a maximum of forty (40) discount subscriptions; and (d) for municipalities with a population of over 500,000, up to a maximum of fifty (50) discount subscriptions. Town understands and agrees that Metricom's modems and equipment required to utilize the discounted subscriptions and any additional service subscriptions or service options the Town may desire are expressly excluded from this special Municipal Access Program rate and may be obtained from either Metricom or an authorized retailer at market rates current from time to time or under other promotional programs which may be available from time to time in addition to the Municipal Access Program rate. Town shall use all subscriptions provided pursuant to this § 4.3 solely for its own use and shall not be entitled to resell, distribute, or otherwise permit the use of the same by any other Person. Town of Trophy Club Ordinace Page 7 of 16 S:ISHAREILA W_W P\TIFFAN YITROPHYCLIORDINANCINIETRICOM.O R SECTION 5 RELOCATION OF RADIOS. Metricom understands and acknowledges that Town may require Metricom to relocate one or more of its Radios, and Metricom shall at Town's direction relocate such Radios at Metricom's sole cost and expense, whenever Town 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 Town project, (b) because the Radio is interfering with or adversely affecting proper operation of Town -owned light poles, traffic signals, or other Municipal Facilities; or (c) to protect or preserve the public welfare, health or safety. In any such case, Town shall use its reasonable efforts to afford Metricom a reasonably equivalent alternate location. If Metricom shall fail to relocate any Radios as requested by the Town within a reasonable time under the circumstances in accordance with the foregoing provision, Town shall be entitled to relocate the Radios at Metricom's sole cost and expense, without further notice to Metricom. 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 Town. Town will use its reasonable efforts to accommodate Metricom by making another reasonably equivalent Municipal Facility available for use in accordance with and subject to the provisions of this Ordinance. 5.2 Damage to Municipal Right of Way. Whenever the installation, placement, attachment, repair, operation, removal or relocation of Radios is required or permitted under this Ordinance, and such installation, placement, attachment, repair, operation, removal or relocation shall cause the Municipal Right of Way to be damaged, Metricom , at its sole cost and expense, shall promptly repair and return the Municipal Right of Way in which the Radios are located to a safe and satisfactory condition (in the sole opinion of the Town) in accordance with applicable Laws, normal wear and tear excepted. If Metricom does not repair the site as just described, then the Town shall have 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 Town at Town's standard rates. Upon the receipt of a demand for payment by the Town, Metricom shall promptly reimburse the Town for such costs. SECTION 6 INDEMNIFICATION AND WAIVER. Metricom agrees to indemnify, defend, protect, and hold harmless the Town, 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, judgments, remedial actions of any kind, all costs and cleanup actions of any kind, and all costs and expenses incurred in connection therewith, including reasonable attorney's fees and costs of defense (collectively, the "Losses") directly or proximately resulting from Metricom's activities undertaken pursuant to this Ordinance, except to the extent arising from or caused by the negligence or willful misconduct of the Town, its council members, officers, employees, agents, or contracts. The provisions of this Section 6 shall survive the expiration or earlier termination of this Ordinance. Town or Trophy Club Ordinate Page 8 of 16 S:ISE-IAREILAW_WPITIFFANYITROPHYCLIORDrNANC\METRICOM.OR 6.1 Waiver of Claims. Metricom waives any and all claims, demands, causes of action, and rights it may assert against the Town 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 Town. 6.2 Limitation of Town's Liability. The Town shall be liable only for the cost of repair to damaged Radios only as the law in such instances may subject the Town to liability. 6.3 Filing of Certificates and Endorsements. Prior to the commencement of any work pursuant to this Ordinance, Metricom shall file with the Town the required original certificate(s) of insurance with endorsements, which shall clearly state all of the following: (a) the policy number; name of insurance company; name and address of the agent or authorized representative; name, address, and telephone number of insured; project name and address; policy expiration date; and specific coverage amounts; (b) that the Town shall receive at Ieast thirty (30) days' prior notice of cancellation or material reduction in policy limits; and (c) that Metricom's insurance is primary as respects any other valid or collectible insurance that the Town may possess, including any self insured retentions the Town may have; and any other insurance the Town does possess shall be considered excess insurance only and shall not be required to contribute with this insurance. The certificate(s) of insurance with endorsements and notices shall be mailed to the Town at the address specified in § 8 below. 6.4 Workers' Compensation Insurance. Metricom shall obtain and maintain at all times during the term of this Ordinance statutory workers' compensation and employer's liability insurance in an amount not less than Five Hundred Thousand Dollars ($500,000) and shall furnish the Town with a certificate showing proof of such coverage. 6.5 Insurer Criteria. Any insurance provider of Metricom shall be admitted and authorized to do business in the State of Texas and shall be rated at least AIX in A.Ar. Best & Company's Insurance Guide, Insurance policies and certificates issued by nonadmitted insurance companies are not acceptable. 6.6 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 Town. "Cross Town of Trophy Club Ordinace Page 9 of 16 S:ISHAREILAW_WPITIFFANYITROPHYCLIORDINANCIMETRIC0?v1AR liability," "severability of interest," or "separation of insureds" clauses'sllall be made apart of the commercial general liability and commercial automobile liability pplicies. SECTION 7 INSURANCE. Metricom shall obtain and maintain at all times during the term of this Ordinance commercial general liability insurance (including without limitation contractual liability covering, but not limited to, the indemnification provisions of this Ordinance) and commercial automobile Iiability insurance protecting Metricom in an amount not less than One Million Dollars ($1,000,000) per occurrence (combined single limit), including bodily injury or death and property damage or destruction, and in an amount not Iess than One Million Dollars ($1,000,000) annual aggregate for each personal injury liability and products completed operations. Such insurance policies shall name the Town, its council members, officers, and employees as additional insureds as respects any covered liability arising out of any act or omission of Metricom under this Ordinance. All casualty insurance shall contain a waiver of subrogation endorsement in favor of the Town. The Town reserves the right to review the insurance requirements contained herein and to adjust coverages and limits when deemed reasonably prudent by the Town. Coverage shall be in an occurrence form and in accordance with the limits and provisions specified herein. Claims -made policies are not acceptable. Such insurance shall not be canceled or materially altered to reduce the policy limits until the town has received at least thirty (3 0) days' advance written notice of such cancellation or change. Metricom shall be responsible for notifying the Town of such chance or cancellation. SECTION S NOTICES. All notices which shall or may be given pursuant to this Ordinance 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 services; or (c) by facsimile or e-mail transmission, if a hard copy of the same is followed by delivery through the United States mail or by overnight delivery service as just described, addressed as follows: Ifto the Town: TOWN OF TROPHY CLUB Attn: Town Secretary 100 Municipal Drive Trophy Club, TX 76262 If to kletricorn: METRICOM, INC. Attn: Property Manager 980 University Avenue Los Gatos, CA 95032 Town of Trophy Club Ordinace Page 10 of 16 S:\SHARE\LAW—WP\TIFFANY1TROPHYCL\ORDrNANCItvIETRICONI.OR 8.1 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 day- in the case of facsimile, e-mail, 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. SECTION 9 TERMINATION. The rights and obligations granted under this Ordinance may be terminated by either party upon forty-five (45) days' prior written notice to the other party upon a violation of any material provision or term hereof by the other party, which violation is not cured within forty-five (45) days of receipt of written notice of violation (or, if such violation is not curable within forty-five (45) days, if the violating 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 Ordinance are irrevocable during the term. Upon the expiration or earlier termination of this Ordinance Metricom shall promptly (bat in any event not Iess than thirty (30) days hereafter) remove from the Rights of Way all of its Radios or other property; in the event Metricom fails to remove the same, the Town shall have the right to remove the same and shall not be liable for any damage to such property resulting from such removal. SECTION 10 AssIGNMENT. The rights and obligations granted under this Ordinance shall not be assigned by Metricom without the express written consent of the Town, which consent shall not be unreasonably withheld, conditioned, or delayed. Notwithstanding the foregoing, the transfer m of the rights and obligations of Metricohereunder to a financially viable affiliate shall not be deemed an assignment for the purposes of this Ordinance; provided, however, that Metricom shall promptly notify the Town of such assignment. For purposes of this Agreement, the term "affiliate" means a corporate parent of Metricom owning more than fifty (50%) percent of the shares of Metricom, a partnership or joint venture in which Metricom owns an interest of more than fifty (50%) percent, or a subsidiary entity of Metricom in which Metricom owns an interest of more than fifty (50%) percent. SECTION 11 PUBLICATION. The Town Secretary of the Town of Trophy Club is hereby directed to publish the Caption, and Effective Date clause of this Ordinance in one issue of the official newspaper of the Town of Trophy Club in accordance with the provisions of Section 52.011 of the Texas Local Government Code. SECTION 12 REPEALER. All other ordinances and agreements and parts of ordinances and aZap greements in conflict with the provisions of this Ordinance are hereby repealed. SECTION 13 MISCELLANEOUS PROVISIONS. The provisions which follow shall apply generally to the obligations of the parties under this Ordinance. Town of Trophy Club Ordinace Page 11 of 16 S:ISHAREILAW_WPITIFFANYITROPHYCLIORDINANCIILIETRICONI.OR 13.1 Nonexclusive Use. Metricom understands that this Ordinance does not provide Metricom with exclusive use of the Municipal Right of Way or any Municipal Facility and that Town shall have the right to permit other providers of telecommunications and other services to install equipment or devices in the Municipal Right of Way and on Municipal Facilities. 13? Severability of Provisions. If any one or more of the Provisions of this Ordinance 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 Ordinance and shall not affect the legality, validity, or constitutionality of the remaining portions of this Ordinance. Each party hereby declares that it would have entered into this Ordinance and each Provision hereof irrespective of the fact that any one or more Provisions be declared illegal, invalid, or unconstitutional. 13.3 Contacting Metricom. Metricom shall be available to the staff employees of any Town 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 Town may contact by telephone the network control center operator at telephone number (800) 873-3468 regarding such problems or complaints. 13.4 Governing Law; Jurisdiction. This Ordinance shall be governed and construed by and in accordance with the laws of the State of Texas, without reference to its conflicts of law principles. If suit is brought by a party to this Ordinance, the parties agree that trial of such action shall be vested exclusively in the state courts of Texas, County of Denton, or in the United States District Court for the Eastern District of Texas. 13.5 Attorneys' Fees. Should any dispute rising out of this Ordinance lead to litigation, the prevailing parry shall be entitled to recover its costs of suit, including reasonable attorneys' fees. 13.6 Exhibits. All exhibits referred to in this Ordinance and any addenda, attachments, and schedules which may from time to time be referred to in any duly executed amendment to this Ordinance are by such reference incorporated in this Ordinance and shall be deemed a part of this Ordinance. 13.7 Successors and Assigns. This Ordinance is binding upon the successors and assigns of the parties hereto. 13.8 Advise of Displacement. To the extent the Town has actual knowledge thereof, the Town will attempt promptly to inform Metricom of the displacement or removal of any pole Town of Trophy Club Ordinace Page 12 of 16 S:IS HAREILA W _W PITIFFANYITROPHYCLIORDINANC\METRICOM.OR on which any Radio is located. 13.9 Consent Criteria. In any case where the approval or consent of one party hereto is required, requested or otherwise to be given under this Ordinance, such party shall not unreasonably delay, condition, or withhold its approval or consent. 13.10 Waiver of Breach. The waiver by either party of any breach or violation of any Provision of this Ordinance 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 Ordinance. 13.11 Representations and Warranties. Metricom, Inc. and the Town of Trophy Club 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. In addition, Town specifically represents and covenants that Town owns all Municipal Facilities for the use of which it is collecting from Metricom the Annual Fee pursuant to § 4.1 above. 13.12 Year 2000 Compliance. Metricorn warrants that its system will not be activated before January 1, 2000 without Year 2000 compliance. If such activation does occur before January 1, 2000, Metricom warrants that the system will be Year 2000 Compliant. For purposes of this section, "2000 Complaint" means the ability of a product or system to accurately and without interruption process data/time data (including, but not limited to, calculating, comparing, and sequencing) from, into, and between the twentieth and twenty- first centuries, and the years 1999 and 2000 and leap year calculations. 13.13 Entire Agreement. This Ordinance 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 Ordinance which are not fully expressed herein. 13.11 Engrossment and Enrollment. The Town Secretary of the Town of Trophy Club is hereby directed to engross and enroll this Ordinance by copying the exact Caption, Publication Clause and Effective Date clause in the minutes of the Town Council of the Town of Trophy Club and by filing this Ordinance in the Ordinance records of -lie Town. 13.15 Acceptance of Agreement. Metricom shall have sixty (60) days from and after the passage and approval of this Ordinance to file its written acceptance thereof with the Town Secretary. Upon such filing, this Ordinance shall take effect and the effective date of this Ordinance shall be deemed to be the first day of the month following the acceptance and it shall be in force from and after such date, and shall effectuate and make binding the Town of Trophy Club Ordinace Page 13 of 16 S:\Sl-IARE; LAW_WP\TIFFANY\TROPHYCLIORDINANC\MF,TRICOM.OR agreement provided by the terms thereof. In witness whereof,, and in order to bind themselves legally to the terms and conditions of this franchise agreement created in the form of an ordinance, the duly authorized representatives of the parties have executed this franchise agreement as of the Effective Date. This Ordinance shall be in full force and effect from and after its date of passage and publication. PASSED AND APPROVED by the Town Council of the Town of Trophy Club, Texas this the 17th day 6f August 1999. Mayor, Town of Trophy Club, Texas ATTEST: G Town Secretary, Town of Trophy Cl>, Texas [SEAL] APPROVED AS TO FORM: Town Attorney, Town of Trophy Club, Texas Tuwn of Trophy Club Ordinnce Page 14 of 16 S:\SHARE\LAW-WP\TIFFANY\TROP14YCL\ORDfNANC\fvfETRICOM.OR ACCEPTANCE WHEREAS, the Town Council of the Town of Trophy Club, Texas, did on the 17th day of August, 1999, enact an Ordinance entitled: AN ORDINANCE OF THE TOWN OF TROPHY CLUB, TEXAS WHEREBY THE TOWN OF TROPHY CLUB, TEXAS AND METRICOM, INC. AGREE THAT, FOR THE PURPOSE OF INSTALLING AND MAINTAINING METRICOM'S WIRELESS DIGITAL DATA COMMUNICATIONS RADIO NETWORK KNOWN AS RICOCHET, METRICOM MAY LOCATE, PLACE, ATTACH, INSTALL, OPERATE AND MAINTAIN RADIOS ON FACILITIES OWNED BY THE TOWN OF TROPHY CLUB, AS WELL AS FACILITIES OWNED BY THIRD PARTIES, LOCATED IN MUNICIPAL RIGHTS-OF-WAY; PROVIDING DEFINITIONS; PROVIDING A TERM CLAUSE; PROVIDING A SCOPE OF ORDINANCE CLAUSE; PROVIDING A COMPENSATION CLAUSE; PROVIDING A RELOCATION CLAUSE; PROVIDING AN INDEMNIFICATION AND WAIVER CLAUSE; PROVIDING AN INSURANCE CLAUSE; PROVIDING FOR NOTICE AND TERMINATION; PROVIDING AN ASSIGNMENT CLAUSE; PROVIDING A REPEALER CLAUSE; PROVIDING A PUBLICATION CLAUSE; PROVIDING FOR MISCELLANEOUS PROVISIONS; PROVIDING FOR AN EFFECTIVE DATE AND ACCEPTANCE OF AGREEMENT. and WHEREAS, said Ordinance was on the 17th day of August, 1999, duly approved by the Mayor of said Town and the seal of said Town was thereto affixed and attested by the Town Secretary; NOW THEREFORE, in compliance with the terms of said Ordinance as enacted, approved and attested, Metricom hereby accepts said Ordinance and files this its written acceptance with the Town Secretary of the Town of Trophy Club, Texas. Dated this 1'5'- day of -AT' . ,,/wL� � , 1999. Ap,aFoved as to Form ROW BC y:� Da Town of Trophy Club Ordinace Page 15 of IG S:ISHAREILAW _WPITIFFANYITRO PI-IYCLIORD INANC1METRICOtvL O R ME` RICOM, INC. Olaware Corporation By: (Print or type name of person signing) Office or Position: DRIG • arqusrt, Esq. Wf Counsel & Senior VP Administration Town of Trophy Club Ordinace Page 16 of 16 S:\SHARE\LAW—WP\TIFFANY\TROPHYCL\ORDINANC\METRICOM.OR