0718
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i
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ORDINANCE NO. I
AN ORDINANCE GRANTING A FRANCHISE TO METRICOM, INC.,
TO INSTALL, OPERATE, AND MAINTAIN A WIRELESS DIGITAL
DATA COMMUNICATIONS RADIO NETWORK IN THE CITY OF
SOUTHLAKE; PROVIDING FOR PUBLICATION; PROVIDING FOR
ACCEPTANCE; AND PROVIDING AN EFFECTIVE DATE.
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 § 1.13 below) and related
equipment certified by the Federal Communications Commission; and
WHEREAS, Metricom recognizes that its installation of its facilities in the
Municipal Right of Way (as defined in § 1.9 below) is subject to reasonable municipal
regulations concerning the time, location, manner of attachment, installation, and
maintenance of its facilities and payment of a reasonable fee for use of the Municipal
Right of Way; and
WHEREAS, Metricom wishes to locate, ,place, attach, install, operate, and
maintain Radios on facilities owned by the City, as well as facilities owned by third
parties, located in the Municipal Right of Way for purposes of operating Ricochet;
NOW THEREFORE,
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF SOUTHLAKE,
TEXAS:
Section 1 DEFINITIONS. The following definitions shall apply generally to the
provisions of this franchise:
1.1 Agency. "Agency" means any governmental or quasi-governmental agency
other than the City, including the Federal Communications Commission and the
PUC (as such term is defined in § 1.12 below).
1.2 Fee. "Fee" means any assessment, charge, fee, imposition, tax, or levy of
general application to Persons doing business in the City 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 derived
directly or indirectly by Metricom for Services provided to its customers with
billing addresses in the City, excluding (i) local, state, or federal taxes collected
by Metricom, other than the Right-of-Way Fee, that have been billed to the
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subscribers and separately stated on subscribers' bills; and (ii) revenue
uncollectible from subscribers (i.e., bad debts) with billing addresses in the City
that was previously included in Gross Revenues.
1.4 Installation Date. "Installation Date" means the date that the first Radio is
installed in the City by Metricom pursuant to this franchise.
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 franchise, 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 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 Municipal Access Program. "Municipal Access Program" means the discount
program described in § 4.3 below.
1.8 Municipal Facilities. "Municipal Facilities" means City-owned street light
poles, lighting fixtures, electroliers, or other City-owned structures located
within the Municipal Right of Way and may refer to such facilities in the singular
or plural, as appropriate to the context in which used.
1.9 Municipal Right of Way. "Municipal Right of Way" means the space in,
upon, above, along, across, and over the public streets, roads, lanes, courts, ways,
alleys, and boulevards, 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 Agency other than the City, except as
provided by applicable Laws or pursuant to an agreement between the City and
any such Person or Agency.
1.10 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 Provision. "Provision" means any agreement, clause, condition,
covenant, qualification, restriction, reservation, term, or other stipulation in this
franchise that defines or otherwise controls, establishes, or limits the
performance required or permitted by any party to this franchise. All Provisions,
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whether covenants or conditions, shall be deemed to be both covenants and
conditions.
1.12 PUC. "PUC" means the Texas Public Utility Commission.
1.13 Radio. "Radio" means the radio equipment, whether referred to singly or
collectively, to be installed and operated by Metricom hereunder.
1.14 Ricochet. "Ricochet@" or "'Ricochet@ MCDN" means Ricochet@
MicroCellular Digital Network, a wireless, microcellular digital radio
communications network owned and operated by Metricom.
1.15 Right-of-Way Fee. "Right-of-Way Fee" means the fee Metricom pays the
City for placing its equipment in the Municipal Right of Way. It does not relieve
Metricom of the responsibility of paying ad valorem taxes, sales taxes, or special
assessments, if any are applicable.
1.16 Services. "Services" means the wireless digital communications services
provided through Ricochet@ by Metricom.
1.17 City. "City" means the City of Southlake.
1.18 Franchise. "Franchise" means this nonexclusive franchise.
Section 2 TERM. This franchise shall be effective as of the Effective Date and shall
extend for a term of ten (10) years commencing on the Installation Date, unless it is
earlier terminated by either party in accordance with the provisions herein. The term of
this franchise shall be renewed automatically for two (2) 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 ninety (90) calendar days
prior to commencement of the relevant renewal term. Metricom shall give notice to the
City of the Installation Date within ten (10) days of installing the first Radio in the City.
Section 3 SCOPE OF FRANCHISE. Any and all rights expressly granted to Metricom
under this franchise, 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 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 franchise 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 franchise may, at the City's option, be subject to the reasonable prior
review and approval of the City.
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3.1 Attachment to Municipal Facilities. The City grants Metricom the
non-exclusive right and privilege 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 City. In addition, subject to the provisions of § Section 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. A Radio that zr, in i9ob ie view shall not exceed 0.75 cubic feet in size.
3.2 Attachment to Third-Party Property. Subject to obtaining the permission of
the owner(s) of the affected property, the City grants Metricom the non-exclusive
right and privilege 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 structures 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. Upon request, Metricom shall furnish to the city documentation of such
permission from the individual utility or property owner responsible. City
agrees (without the obligation of advocacy) 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 Municipal Right of Way. A Radio that -ift j
hall not exceed 0.75 cubic feet in size.
3.3 No Interference. Metricom in the performance and exercise of its rights and
obligations under this franchise shall not interfere in any manner with the
existence and operation of any and all public and private rights of way, sanitary
sewers, water mains, storm drains, gas mains, poles, aerial and underground `
electrical and telephone wires, electroliers, cable television, and other
telecommunications, 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 franchise.
3.4 Compliance with Laws. Metricom shall comply with all applicable Laws in ;
the exercise and performance of its rights and obligations under this franchise.
3.5 Obtaining Required Permits. If the attachment, installation, operation, i
maintenance, or location of the Radios in the Municipal Right of Way shall
require any permits, Metricom shall, if required under applicable City
ordinances, apply for the appropriate permits and pay any standard and
customary permit fees. City 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
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timely manner. The proposed locations of Metricom's planned initial installation
of Radios shall be provided to the City 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, and upon
the addition or relocation of Radios, Metricom promptly shall furnish to the City
suitable documentation showing the exact location of the Radios in the
Municipal Right of Way.
Section 4 COMPENSATION; DISCOUNTS; UTILITY CHARGES. Metricom shall be solely
responsible for the payment of all lawful Fees in connection with Metricom's
performance under this franchise, including those set forth below.
4.1 Right-of-Way Fees. In order to compensate City for Metricom's use of the
Municipal Right of Way in the operation of Metricom's business, Metricom shall
pay to the City quarterly an amount equal to five percent (5%) of Metricom s Gross
Revenues (the "Right-of-Way Fee'), which amount may be collected from
subscribers of the Services with billing addresses in the City and remitted to City as
provided herein. The compensation provided under this section shall be payable
for the period commencing upon the date that Metricom first provides Services to
paying subscribers within the City using Radios installed pursuant to this franchise
and ending on the date of termination of this franchise, and shall be due on or
before the 30th day after the end of each calendar quarter or fraction thereof. Within
thirty (30) days after the termination of this franchise, compensation shall be paid
for the period elapsing since the end of the last calendar quarter 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 Gross
Revenues for the period covered by the payment. If Metricom discovers that it has
failed to pay the entire or correct amount of compensation due, the City shall be
paid by Metricom 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 from Metricom.
Acceptance by the City of any payment due under this section shall not be deemed
to be a waiver by the City of any breach of this franchise 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.
4.1.1 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
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relative to the City 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 City's sole expense, but in each case only to the extent
necessary to confirm the accuracy of payments due under § 4.1 above. If
the results of any audit indicate that Metricom (i) paid the correct
Right-of-Way Fee, (ii) overpaid the Right-of-Way Fee and is entitled to a
refund or credit, or (iii) underpaid the Right-of-Way Fee by three percent
(3%) or less, then the City shall pay the costs of the audit. If the results of
the audit indicate that Metricom underpaid the Right-of-Way Fee by more
than three percent (3%), then Metricom shall pay the reasonable costs of
the audit. The City 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 City's execution and delivery
of this franchise, City shall have the right throughout the term of this franchise to
purchase, when such service is commercially available in the City, up to the
maximum number set forth below (based upon the City's population) of
Ricochet@ basic service subscriptions at the rate of fifty percent (50%) of the
regular rate for residential service as current from time to time. The number of
subscriptions which the City may purchase at the Municipal Access Program rate
shall be determined in accordance with the City's official population, as shown
on the latest available census data, as follows: (a) for 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 (30) 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. City understands and agrees
that Metricom's modems and equipment required to utilize the discounted
subscriptions and any additional service subscriptions or service options the City
may desire are expressly excluded from this special 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. City shall use all subscriptions provided pursuant to this § 4.3
solely for its own use and shall not be entitled to resell, distribute, or otherwise
permit the use of the same by any other Person.
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Section 5 INSTALLATION AND RELOCATION OF RADIOS. Metricom understands and
acknowledges that City may require Metricom to relocate one or more of its Radios, and
Metricom shall at City's direction relocate such Radios at Metricom's sole cost and
expense, whenever City reasonably determines that the relocation is needed for any of
the following purposes: (a) 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 assist and cooperate with Metricom in finding a reasonably equivalent
alternate location. If Metricom shall fail to relocate any Radios as requested by the City
within a reasonable time 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.
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 assist and cooperate with Metricom in locating another
reasonably equivalent Municipal Facility available for use in accordance with
and subject to the terms and conditions of this franchise.
5.2 Damage to Municipal Right of Way. Whenever the installation, removal, or
relocation of Radios is required or permitted under this franchise, and such
installation, 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 or City equipment to a safe and satisfactory
condition in accordance with City specifications, 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 City's standard rates. Upon the receipt of a
demand for payment by the City, Metricom shall promptly reimburse the City
for such costs.
5.3 Right-of-Way Work. Metricom shall not trim trees, excavate, or cut
pavement on or in the Municipal Right of Way.
Section 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, REMEDIAL ACTIONS OF ANY KIND, ALL COSTS AND
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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 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.
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.
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.
Section 7 INSURANCE. Metricom shall obtain and maintain at all times during the term
of this franchise 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.
Such insurance policies shall name the City, its council members, officers, and
employees as additional insureds as respects any covered liability arising out of
Metricorn s performance of work under this franchise. Coverage shall be in an
occurrence form and in accordance with the limits and provisions specified herein.
Claims-made policies are not acceptable. When umbrella or excess coverage is in effect,
coverage shall be provided in following form. Such insurance shall not be canceled or
materially altered to reduce the policy limits 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.
7.1 Filing of Certificates and Endorsements. Prior to the commencement of any
work pursuant to this franchise, Metricom shall file with the City 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,
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and telephone number of insured; project name and address; policy
expiration date; and specific coverage amounts;
(b) that the City shall receive thirty (30) days' prior notice of
cancellation; and
(c) that Metricom's insurance is primary as respects any other valid
or collectible insurance that the City may possess, including any
self-insured retentions the City may have; and any other insurance
the City does possess shall be considered excess insurance only and
shall not be required to contribute with this insurance.
The certificate(s) of insurance with endorsements and notices shall be mailed to
the City at the address specified in § Section 8 below.
7.2 Workers' Compensation Insurance. Metricom shall obtain and maintain at
all times during the term of this franchise statutory workers' compensation and
employer's liability insurance in an amount not less than Five Hundred
Thousand Dollars ($500,000) and shall furnish the City with a certificate showing
proof of such coverage.
7.3 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 A:X in
A.M. Best & Company's Insurance Guide. 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. "Cross liability," "severability of interest," or "separation of insureds"
clauses shall be made a part of the commercial general liability and commercial
automobile liability policies.
Section 8 NOTICES. All notices which shall or may be given pursuant to this franchise
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:
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if f to the City:
CITY OF SOUTHLAKE
Attn: Curtis E. Hawk, City Manager
1725 East Southlake Boulevard
Southlake, TX 76092
if to Metricom:
METRICOM, INC.
Attn: Property Manager
980 University Avenue
Los Gatos, CA 95032
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, 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.
Section 9 TERMINATION. This franchise 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 (other than payment of money) 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). The period for the cure of a default in the payment
of money shall be ten (10) days from receipt of notice. If the money is not paid by the
10th day after notice, this franchise may be terminated. Upon the expiration or earlier
termination of this franchise, or should Metricom cease business operations in the City,
Metricom shall promptly (but in any event not less than sixty (60) days thereafter)
remove from the Municipal Right of Way all of its Radios or other property
("Property"); and in the event Metricom fails to remove its Property, the City shall have
the right to remove the Property and shall not be liable for any damage to the Property
resulting from the removal. Except as expressly provided herein, the rights granted
under this franchise are irrevocable during the term.
Section 10 ASSIGNMENT. This franchise 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, or financially
viable affiliate shall not be deemed an assignment for the purposes of this franchise.
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Section 11 MISCELLANEOUS PROVISIONS. The provisions which follow shall apply
generally to the obligations of the parties under this franchise.
11.1 Nonexclusive Use. Metricom understands that this franchise does not
provide Metricom with exclusive use of the Municipal Right of Way or any
Municipal Facility and that City shall have the right to permit other providers of
telecommunications services to install equipment or devices in the Municipal
Right of Way and on Municipal Facilities. City agrees to advise other providers
of telecommunications services of the presence or planned deployment of the
Radios in the Municipal Right of Way and/or on Municipal Facilities.
11.2 Amendment of Franchise. This franchise may not be amended except by
ordinance approved by the City Council.
11.3 Severability of Provisions. If any one or more of the Provisions of this
franchise except § 4.1 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 franchise and shall not
affect the legality, validity, or constitutionality of the remaining portions of this
franchise. Each party hereby declares that it would have entered into this franchise
and each Provision hereof irrespective of the fact that any one or more Provisions
except § 4.1 be declared illegal, invalid, or unconstitutional.
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 franchise shall be governed and
construed by and in accordance with the laws of the State of Texas. If suit is
brought by a party to this franchise, the parties agree that venue shall be vested
exclusively in the state courts of Texas, County of Tarrant, or in the United States
District Court for the Northern District of Texas.
11.6 Attorneys' Fees. Should any dispute arising out of this franchise lead to
litigation, the prevailing party shall be entitled to recover its costs of suit,
including reasonable attorneys' fees.
11.7 Exhibits. All exhibits referred to in this franchise and any addenda,
attachments, and schedules which may from time to time be referred to in any
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duly executed amendment to this franchise are by such reference incorporated in
this franchise and shall be deemed a part of this franchise.
11.8 Successors and Assigns. This franchise is binding upon the successors
and assigns of the parties hereto.
11.9 Advice of Displacement. 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.
11.10 Consent Criteria. In any case where the approval or consent of one party
hereto is required, requested or otherwise to be given under this franchise, such
party shall not unreasonably delay, condition, or withhold its approval or
consent.
11.11 Waiver of Breach. The waiver by either party of any breach or violation
of any Provision of this franchise 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 franchise.
11.12 Representations and Warranties. Each of the parties to this franchise
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, City
specifically represents and covenants that City owns all Municipal Facilities and
the Municipal Right of Way for the use of which it is collecting from Metricom
the Right-of-Way Fee pursuant to § 4.1 above.
11.13 Entire Agreement. This franchise 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 franchise
which are not fully expressed herein.
Section 12 PUBLICATION. The City Secretary is directed to publish this proposed
ordinance or its caption together with a notice setting out the time and place for a public
hearing at last 10 days before the second consideration of this ordinance as required by
Section 3.13 of the Charter of the City of Southlake.
Section 13 ACCEPTANCE AND EFFECTIVE DATE. The City Secretary shall deliver a
properly certified copy of this franchise ordinance to Metricom within three working
days of its final passage. Metricom shall have 30 days to file its written acceptance.
Franchise Ordinance
City of Southlake Metricom, Inc.
page 12 of 13
southlake2.doc [05mas28row98ua1j 10/12/98 3:05 PM
This ordinance shall become effective upon delivery of the executed acceptance to the
City Secretary.
PAS ED D APPROVED ON FIRST CONSIDERATION ON THIS
DAY OF kaWUb 1998.
X /Z
MAY R
e
a, s = ATTEST:
%
Cri S:
:0
CITY SECRETARY
t
P SSED AND APPROVED ON SECOND CONSIDERATION ON
THIS DAY OF IM-AW 1998.
§a`~\\\tttiutrtr/%,/~A~
0 c......
~
O O J
0.
Z °
~ MAY 6R
_ e X
••.....<bw"a ATTEST:
C TY SECRETARY '
EFFECTIVE: O&Att"g
APPRO AS TO FORM AND LEGALITY:
City Attorney
to Form
APP,,~.s art nent
RO,4°V Le Date:
By: r
Franchise Ordinance
City of Sou thlake Metricom, Inc.
page 13 of 13
southlake2.doc (05mas28row98ua1] 10/12158 3:05 PM
ACCEPTANCE
WHEREAS, on the 20' day of October, 1998, the city council of the City of Southlake,
Texas, adopted on final consideration, Ordinance No. 718, entitled:
AN ORDINANCE GRANTING A FRANCHISE TO METRICOM,
INC., TO INSTALL, OPERATE, AND MAINTAIN A WIRELESS
DIGITAL DATA COMMUNICATIONS RADIO NETWORK IN
THE CITY OF SOUTHLAKE; PROVIDINGFOR PUBLICATION;
PROVIDING FOR ACCEPTANCE; AND PROVIDING AND
EFFECTIVE DATE.
NOW, THEREFORE,
Metricom, Inc., accepts and agrees to the provisions of Ordinance No.718, which constitutes
a binding contractual obligation ofMetricom, Inc., and Metricom files this its written acceptance with
the City Secretary of the City of SouthlakeIe,'' Texas.
Dated this /,F"4 day of N° vE xmw - r-' , 1998.
METRICOM, INC.
By:
T,e~ G~~adze
(Name printed)
Its: Sr. VP Field Operations Group
Accept a filed i the Office ofthe City Secretary ofthe City of Southlake, Texas, this
day of
OT H4
m = City Secretary
co
Iliiii►l
\southlake\ordinancelaccptnce
Star-Telegram FED I D. NO. 22 3148254
AD ORDER NO. 13958320
400 W.SEVENTH STREET•FORT WORTH,TEXAS 76102 ACCOUNT NO. C I T 5 7
THE STATE OF TEXAS
Runty of Tarrant
Before me, a Notary Public in and for said County and State, this day
personally appeared TAMMIE BRYANT Billing Specialist for the
Star-Telegram, published by the Star-Telegram Inc. at Fort Worth, in Tarrant County, Texas; and
who, after being duly sworn, did depose and say that the following clipping of an advertisement was
published in the above named paper on the following dates:
DATE AD ORDER NO. DESCRIPTION AD SIZE TOTAL RATE AMOUNT
NCH/LINE
10/24ME11R15_8320 ORDINANCE NO . 71 I358 1 1x 24L 24 QUOTE 19 . 44
ORDINANCE NO.718
AN ORDINANCE GRANTING A 1 0/2 4-1 0/2 4
FRANCHISE TO METRICOM,
INC., TO INSTALL, OPER-
ATE,AND MAINTAIN A WIRE-
LESS DIGITAL.DATA COMMU-
NICATIONS RADIO NET-
WORK -- - ---- - --- ---
IN THE CITY OF
SOUTHLAKE; PROVIDING
FOR PUBLICATION' PROVID-
ING FOR ACCEPTANCE;AND
PROVIDING AN EFFECTIVE - -
DATE.
PASSED AND APPROVED ON
THE 20th DAY OF OCTOBER,
1998, DURING THE REGU-
LAR
CITY COUNCIL MEET- - - - -
ING.
MAYOR RICK STACY
ATTEST:SANDRA L.
LEGRAND CITY SECRETARY
APPROVED AS TO FORM:
E.ALLEN TAYLOR JR., � T.N .
CITY ATTORNEY
SIG
SUBSCRIBED AND SWORN TO BEFORE ME, THIS THE 26th DAY OF OCTOBER 1998
r.,,�,�,.,`.,,,. � Notary Publicj3 �� �.
j = ', � ry RHOPfDA R. GOKE is
n• "'' -s COMMISSION EXPIRES i
#/. J`'`_L SEPTEMBER 8, 1999 $ TARRANT COUNTY,TEXAS
PLEASE PAY THIS ORIGINAL INVOICE AND RECONCILE WITH MONTHLY STATEMENT. THANK YOU!
I�TEAR ALONG THIS PERFORATION AND RETURN THE LOWER PORTION WITH YOUR PAYMENT----►
Star-'I'elegrarri REMIT TO: 400 W. SEVENTH ST. •FORT WORTH,TEXAS 76102
13958320 NUMBER CIT57 ADUENT 19 . 44
PAGEI Q.1 IF ANY QUESTIONS, PLEASE CALL(817)390-7885
\:, .-:.,-\ g,------:_--- 1 1 .1
leis 1 3 1998 \ 4,
CITY OF SOUTHLAKE
667 N CARROLL AVE PLEASE PAY ,
SOUTHLAKE� TX 76092-9595 THIS AMOUNT 19 . 44
PLEASE WRITE IN AMOUNT ENCLOSED
FED
Star-Telegram . I.D. NO. 22-3148254
AD ORDER NO. 13867802
400 W.SEVENTH STREET•FORT WORTH,TEXAS 76102 ACCOUNT NO. C IT 5 7
T' 'E STATE OF TEXAS
unty of Tarrant
Before me, a Notary Public in and for said County and State, this day
Tammie Bryant
personally appeared Billing Specialist for the
Star-Telegram, published by the Star-Telegram Inc. at Fort Worth, in Tarrant County, Texas; and
who, after being duly sworn, did depose and say that the following clipping of an advertisement was
published in the above named paper on the following dates:
DATE AD ORDER NO. DESCRIPTION AD SIZE TOTAL.INCH/LINE RATE AMOUNT
10/09ME 13867802 NOTICE OF PUBLIC I358 1x 32L 32 . 81 25 . 92
NOTICE OF PUBLIC '0/0 9-10/0 9
HEARING
Notice is hereby given to all in-
terested pe o the
r nth
City CouncilCity of
Southlake, will be holding a
public hearing during the
Regular City Council meetingg
to be held on October 20,
1998, at 6:00 p.m., in the
Citof
City Hall, ers 667 ConcilCNor North Carroll
Avenue,Southlake,Texas.
Purpose of the hearing is to
consider the second reading -- - - -
of ORDINANCE NOn 718
AFRANCHISE TO METRICOM
INC., TO INSTALL, OPER-
ATE,AND MAINTAIN A WIRE-'
LESS DATAMU-
NICAT ONSAL RADIO O NET-
NORK IN THE PROVIDING
SOUTHLAKE; C
FOR PUBLICATION; PROVID- p
PIN FOR ACCEPTANCE'AND
ROVIDING AN EFFECTIVE 12th OCTOBER 998
Sl DATE SWORN TO BEFORE ME, THIS THE DAY OF
Sandra LeGrand
City SecreL.tary
City of Southlake_ —
" Po' i Notary Public )1:1141eL-
� ?tP.. ..`�e , RHONDA R. COKE rY -10 '-'0.
0s• �# COMMISSION EXPIRES
rrh�i•... . :t�‘ SEPTEM8ER 8, 1999 TARRANT COUNTY,TEXAS
PLEASE PAY THIS ORIGINAL INVOICE AND RECONCILE WITH MONTHLY STATEMENT. THANK YOU!
k TEAR ALONG THIS PERFORATION AND RETURN THE LOWER PORTION WITH YOUR PAYMENT--
tarTeleramREMIT TO: 400 W.SEVENTH ST. •FORT WORTH,TEXAS 76102`
13867802 ACCOUNT CIT57 AMOUNT 25 . 92
NUMBER DUE
PAGE' 01 IF ANY QUESTIONS, PLEASE CALL(817)390-7885
CITY OF SOUTHLAKE
667 N CARROLL AVE PLEASE PAY 116,
SOUTHLAKE , TX 76092-9595 THIS AMOUNT 25 . 92
PLEASE WRITE IN AMOUNT ENCLOSED