HomeMy WebLinkAbout2000 Ordinance No. 04511 b ii
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ORDINANCE NO. 1§_'
SERIES OF 2000
BY AUThORITY
COUNCIL BILL NO . «
INTRODUCED BY COUNCIL
MEMBER BRADSHAW
AN ORDINANCE AUTHORIZI G ENTERING INTO I 'RIGHT-OF-WAY USE
AGREEMENT" BETWEEN THE CITY OF ENGLEW1Jf",)), COLORADO AND
METRICOM, INC .
WHEREAS , Metricom is in the buainesa of conatl.'CC:ing, mnintaining and CJP!irating
a mobile digital data commwlicationa radio network 1:nown a. Richocbet, a nenrork
operated in accordance with regulations promulgated I,~ :he Federal Communicatio11.1
Commiaaion (F.C.C.), utilizinc radioe and related equip..,.ut .,.,t.ified by the F.C.C.;
and
WHEREJ.S, the pasaage of this Ordinance will authorize the City to enter ir,to s
"Right Of Way Use Agreement" with Metricom , Inc. which will allow Metricom to
loc•te . place , attach, install operate ond maintain radios on facilities owned by the
City of Englewood, as well u facilil:les owned by third parties, located in the Public
Rights of Way for purposes of operating Richochet;
NOW, THEREFORE , BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
ENGLEWOOD, COLORADO , AS FOLLOWS :
~-The "Right-of-Way Use Agreement" between the City of Englewood and
Metricom, Inc., attached hereto as "Exhibit A," is '.ereby accepted and approved by the
Englewood City 'council .
Sw.iwl..2 . The Mayo r is authori ,:ed to sign the "Right-of-Way Use Agreement" for
and or, behalf of the City of Englewood, Colorado .
Introduced, read in full , and pasaed on first reading on the 5th day of June, 2000.
Published as a Bill for an Ordinance on the 9th day of June, 2000 .
Ro ad b)' title and pass ed on final reading on tha 26th day of June , 2000 .
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Publiahed ty title aa Ordinance No. ~Series of 2000. on the 30th day r,f June, 2000.
A
. ~rud. ~-~ A. Ertla, City Clerk
I, Loucru,b;a A. Elli,, City Clerk afthe City of Englewood, Colorado, hereby certify
that tho above and foregoinr is a true copf p.f. the Ordinance paaaed on final readUIJ
in d publiahod by title ae Ordinance No. ~ Series of 2 .
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ENGLEWOOD, COLORADO)
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Right-of-Way Use Agreement
THIS RIGHT-OF-WAY USE AGREEMENT (this "Use Agreementj is dated as of
______ ....:, (the "Effective Dare"), and entered into by and betwe n the CITY OF
ENGLEWOOD, a Colorado municipal corporation (the "City''), and METRICOM, INC., a
Delaware corporation ("Menicom ").
Recitals
A. Menicom is in the business of constructing, maintaining, and operating a mobile
digital data communications radio network known as Ricochet®, a network operated in accordance
with regulations promulgated by the Federal Communications Comm ission, utilizing ~dios (as
defined in § 1.13 below) and rela1ed equipment certified by the Federal Communications
Commission.
B. Subj ect to reasonable municipal regulations concerning the rime, location, manner
of anachmenr, insta l' ation. fees, and maintenance of its facilities , Metricom has the right under
federal and Colorad~ law to install Ricoche t® Radios in public rights of way,
C. Melli• 1m wishes to locate, place, anacb, install , operate, and maintain Radios on
fac ilities owned by the City , as well as facilities 01mcd by third parties, located in the Public Rights
of Way for purposes of operating Ric oche t®.
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:
I DEFI:,iJTIONS. The follo wing defini1ions shall apply generally to the provisions of this Use
Agreement:
1.1 Adjusted Gross Rel'enues. "Adjusted Gross Revenues" means the gross dollar
amount received by Merricom with respect to and/or deriv ing from the provision of
Services (as defined in § 1.15 below), whether directly by Menicom or through a
reseller, to subscribers with billing addresses in the City, excluding (i) local, state,
or federal taxes that have been billed to the subscri bers and separately stated on
subscribers' bills and (ii) revenue uncollectible from subscribers (i.e., bad debts)
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with billing addresses in the City that was previously included in Adjusted Gross
Revenues.
1.2 Agency. "Agency" means any governmental or quasi-governmental agency other
than the City, including the Federal Communications Commission and thr l'UC (as
such term i!. defined in § I.I I below).
1.3 Fee. "Fee " means any assessment, charge , fe e, imposition , 1ax, or levy of general
application to Persons doin!' business in the City laef-.,tty imposed by any
governmental body (but excluding any utility user.:' wx, franchise fees,
telecommunic ations tax, or similar tax~r fee).
1.4 Installation Datt. "Installation Date"' shall mean the date that the firs! Radio is
installed by Me1ricom pursuant lo this Use Agreement.
1.5 Laws. "Laws" means any and all statutes, constitutions , ordinances, resolutions ,
regulations , judicial decisions, rules, tariffs , ad ministr •ve orders , certificates ,
orders , or other requ irements of the City or other 3~·· .:,nm emal ager.cy having joint
or several jurisdiction over the parties to this Use Ag·•i~, .,\"l:,t, in effect either as of
the Effective Date or at any time during the presence c,f R.i thos in the Public Rights
ofWay .
1.6 Metrico/fl. "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§ 4.4 below .
1.8 Municipal Foci/ides. "Municipal Facilities" means City~wned street light poles,
lighting fixtures , electroliers, or other City-owned strucl'lres located within the
Public Rights of Way and may re fer to such facilities in the singular or plural , as
appropriate to the context in which used.
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1,9 P•rson. "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.
1.10 Provision . "Provision" means any agreement, clause, condition, covenant,
qualification, restriction, reservation, term, or other stipulation in this Use
Agreement that defines or otherwise controls, establishes, or limits the perftmnance
required or permitted by any party to this Use Agreement All Provisions, whether
covenants or conditions, shall be deemed !O be both covenants and conditions.
1.11 Public Rights of Wily. "Public Rights of Way" means the space in, upon, above,
along, across, and over the public streets, roads, lanes, courts, ways, alleys ..
boulevards , sidewalks, bridges, and places, including all public utility easements and
dedicated public service easements as the same now or may hereafter exist, that are
under t!te jurisdiction of the City . This term shall not include siate 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 th~ City and
any such Person or Agency.
1.12 PUC. "PUC" means the Colorado Public Utilities Commission.
1.13 Radio. "Radio" means the radio equipment, whether rcferrec 10 singly or
collectively, to be installed and operated by Metricom hereunder.
1.14 Ricochet®. "Ricochet®" or "Ricochet® MCDN" means Ricochet® MicroCellular
Digital Networlc, a mobile, microcellular digital radio communications network
owned and operated by Metricom .
1.15 S•rvices. "Services" means the mobile digital communications services provided to
end users by Metricom and/or its resellers through the Ricochet® networ:C operated
by Metricom.
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1.16 City. "City" means the City of Englewood].
1.17 Use Agreem•nt. "Use Agreement" means this nonexclusive ::Jse Agreement and
may also refer to the associated right to encroach upon the Public Rights of Way
conferred hereunder.
2 TERM. This Use Agreement shall be effective as of the Effective Date and shall extend for a
term of nine (9) years commencin g on the Installation Date, unles s it is earlier tmrunated by either
party in accordance with the pro visions herein . The term of this Use Agreement shall be renewed
automatically for three (3) successive terms offive (5) years each on the same terms and conditions
as set forth herein , unless either party notifi es the other of its intention not to renew not less than
si.,ty (60) calendar days prior to commencement of the rele \'ant renewal ter.n
3 SCOPE OF USE AGREEMENT, Any and all rights expressly granted to Me rri com under th is Use
Agreement, which shall be exercised at Metricom's sole cos t and expense, shall be subjecr to the
prior and continuing right of the City um:~r app lic:ible Laws to use an y and all parts of rhe Public
Rights of Way and shall be further subject to all deeds , easements, dedications , conditions ,
franchises, covenants , restric1ions , encumbrances , and claims of title of record which may affect
the Public Rights of Way . No1hing in this Use Agreement shall be deemed to grant, convey, create ,
or vest in Metricom a real property int erest in land , including any fee , leasehold interest , or
easement. Any work performed pursuant to rhe rights granted under this Use Agreement may , at
the City', option , be subje ct to rhe reasonable prior review and approva l oi the City .
3.1 Attachment to Municipal Facilities. Subject to rhe covenants hereinafter set forth ,
the City does hereby aurhorize Metricom to enter upon the Public Ri ghts of Way and
to locate, pl ace, attach, install, operate, ma intain , remove, reattach . reu .. •tall , relocate,
and replac e Radios in or on Mun icipal Facilities for the purposes of operating
Ricoche t® and providing Services to Persons located within or with out rhe limits of
the City . In addit ion, subject 10 rhe provisions of§ 4 below, Menicom shall have the
right to draw electricity for the opera1ion of 1he Radios fl ~m ,he po wer source
associated with each such attachment to Municipal Facilities .
3.2 Attachment to Third-Party Property. Subject to obtaining the permission ofrhe
owner(s ) ofrhe affected property, and subject to rhe covenants hereinafter set forth ,
rhe Cir; does hereby aurhorize Metricom to en1er upon rhe Public Rights of Way and
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to attach, install, operate,' maintain, remove, n:anach, reinstall , relocate, and replace
such number of Radios in or on poles or other structures ow;ned by public utility
complllies or other property owners located within the Pulilic Riahts of Way as may
be permilled by the public utility company or property own~r, as the case may be.
Metricom shall furnish to the City documentation of suc)l p~rmission from the
individual utility or properly owner responsible. City agr\:CS, to cooperate with
Metricom, at no cost or expense IO City, in obtaining where necessary the consents
of third-party owners of properly located in the Public Rights of Way. By agreeing
to cooperate, the City is indicating its willingness to indicate its approval of the use
of the Public Rights of Way . The City is not expected to expend substantive staff
time in providing this cooperation.
3.3 No Interference. Metricom in the performan ce ,nd exercise of its ri gi:1, '..;.'
obligation s under this Use Agreement shall not interto ~ :c! any manne • ••· Hh t~~
existence and operation of any and all public and private rights of way, s,,,,;i-.,., ·
sewers, water mains , storm drains, gas mains, poles , imal and underground elecu i,.i..
and telephone wires, electroliers, cable television, traffic signalization, and other
existing telecommunications, utility , or municipal properly , without the expr:ss
wrinen approval of the owner or owners of the affected property or properties , exc ept
as permined by applicable Laws or this Use AgreemenL Metricom will correct any
interference problems attributed to its equipment within fony-eight ( 48) hours of
notification by the City ; provided, however, that in cases of emergenc y or immediate
threat to public safety , as determined in the sole discretion of the City, the City may
shut down any Metricom facilities and shall immediately notify Metricom of the
action taken. The City agrees to require the inclusion of substantially the same
prohib ition on interference as that stated above in all agreements and franchises it
may enter into after the Effective Date with other information or communications
pro viders and carriers .
3.4 Compliance with Laws. Menicom shall comply with and conform to all applicable
rules, regulations and laws of the City and the State of Colorado in the exercise and
performance of its rights and obligations under this Use Agreement.
3,5 Obtaining Required Permits. If the attachment, installation, operation,
maintenance , or location of the Radios in the Public Rights 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 in accordance with its standard practices to Metricom ' s requests
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for pennits and shall o erwise cooperate with Mell ; 1111 in facilitating the •
deployment of Ric..-rJtet® in the Public Rights of Way in " , ·~ioaable and timely
manner. The _,roj,osed locatims ofMetricom'r, planned initi&I ~iCtlllarion of Radios
shall be provided to 'the Cit/ i'romptiy after Meuicom 's re, i,,., of available street
light maps ood prior to deployment of the Radios . At Jc:i,y.1 ) days prior to the
commen,;ement of~ Metricom shall submit 10 the Cil)' for !ti apr,roval, which
shall no1 be unre:1.wru,.bly withheld, conditioned or dela)'fd , 5 ~op ies of standard
plans and details for attaching their Radios to Municipal and Tt:itd Party Facilities.
Plans and details will indicate the standard installation schematics, professional
engineer certification for the proposed installation, the proposed work area traffic
control to be utilized, the standard for electrical and mechanical coMections, and
standard pole attachment locations. Metricom will prn vicie to the Ciiy the
installation location at le:ist 24 hours prior to begiMing work c:1 ilIIY installation lhat
Metricom proposes to construct, utilize, modify, repair, repl::.:e or maintain . A
one-time 56 .00 public way permit fee will be assessed for eaeh location . If these
fees are not paid in advance, then there will be a 52 .00 billing fee for each statement
sent. In the event of emergency repairs required for safely t'r r,Sloration of service
to Metricom's customers, Metricom shall not be required to tJ.!nis h notice prior to
commencing said repairs but shall notify the City of the lllllllfe and extent of any
such emergency work. Metricom agrees to meet with City annually to discuss the
company's forthcom ing projects and installations with the Ciiy .
3.6 Notice of Location of Rlldlos. Upon the completion of installation, Metricom
promptly shall furnish to the Ciiy suitable documentation in a digital format showing
the exact location of the Radios in the Public RighlS of Way .
3. 7 Use Agreement E.ttends Only to Installation of Radios. The righlS grante d
Metricom under this Use Agreement extend onl y to the inst allation of the Radios
descnoed herein on Municipal Facilities in the maMer described herein or on
third-party property in the manner provided in § 3.2 above and does not create any
right to install different or additional communications facilities in the Public RighlS
of Way or on Municipal Facilities or on third •, ;ny propeny . Uoder no
circumstances is the closing, excavation, or opening r,f any Public Right of Way
authorized or permitted under this Use Agreement.
3.8 Exclusion of Certain Facilities. Prior to ilS installation of Radios on Municipal or
Third-Party Facilities and after it provides the Cicy with ilS proposed locations for
installat ion of the R.ldios on Municipal or Third-Party Facilities, the Ciiy may in its
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discretion~ cenain Municipal or Third-Party Facililia to be w:luded from
those on ~lilch ~dios may be installed by Mctricom, incl'\11ina but not limited 10
ornamental or similar specially-designed stRet li&hls or olher Municipal or
Third-Party Facilities which, in the reasonable judgeinent 9f ,lhe City, are not
compati,ble for either engineering , safety, interference, or aestlletlc reasons ..
3.9 Enaiaeer's Certification. Al lhe time of executio~ of Ibis Use Agreement,
Metricom shall provide the City and attach 10 Ibis U~ Agreement as exlul!its hereto
a certified Standard Wind Loading Srudy and a certified Allacbment Detail showing
typical installation for the Radios, each of which shall be certified by a r !gistered
professional engineer.
3.10 No Introduction of Hazardous Materials. fyfetricrm ~fCSC!lts and warrants that
its use oflhc Public Rights of Way and Municipalf,ljCiliries, and its installation of
Radios as provided herein, will not introduce or generate any hazardous substance
(as defined under any applicable state or federal law), and that ii will not store or
dispose on lhc Public Rights of Way or Municipal F aciliries, nor transport 10 or over
lhe Public Rights of Way or Municipal Facilities any hazardous substance (as
defined under any applicable state or federal law).
4 COMPENSATION; DISCOUNTS; UTILITY CHARGES, Metricom shall be solely responsible for lhe
payment of all lawful Fees in connection with Metricom 's performance under Ibis Use Agreement,
including those set forth be low.
4.1 Right-of-Way Fees . As consideration for Metricom's entry upon and deployment
within the Public Rights of Way, Metricom shall pay 10 the City, on an annual bai;is,
an an1oun1 equal 10 five percent (5%) ofMetricom's Adjusted Gross Revenues (the
"Right-of-Way Fee"), which amount will remined 10 City as provided hCT':in. The
compensation providtd under Ibis section shall be payable for the period
commencing upon the dale that Meaicom and/or its resellers first provide Services
10 commercially paying subscribers within the City using Radios installed pursuant
10 Ibis Use Agreement and ending on the dale of termination of this Use Agreement,
and shall be due on or before the 45~ 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 elapsin6 since the end of the
last calendar year for w:'tich compensation has been paid. Metricom shall furnish 10
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the City with each payment of compensation required by this section a statement, •
executed by an auiborized officer ofMetricom or bis or her designee, showing the
amount of Adjusted Gross Rtvenues for the period covered by the payment If
Metrlcom discovers that it bas failed to pay the entire or comct 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 3 waiver by the City of any breach of this Us-.
Agreement occurring prior thereto, nor shall the acceptance by the City of a~y such
payments preclude the City from later establishing that a larger amount was actually
due or from collecting any bala.1ce due to the City.
4.1.1 Reduction of Right-of-Way Fee by Amount• of Utility Usen or
Communications Tax. Notwithstanding anything to the contrary in this Use
Agreement, the amount of the Right-of-Way Fee shall be reduced by the
amount of any applicable local taX, fee, or charge imposed upon Metricom
solely by virtue of its starus as a communications provider.
4.1.2 Accounting :\<tatters. Metricom shall keep accurate books of account at its
principal office in Los Gatos or such other location of its choosing for tt,e
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 ten ( I 0) 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. The City agrees to bold in confidence any
non-public information it learns from Metricom to the fullest extent
permitted by Law.
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4.2 Electricity Cb1rses. M:tricom shall be solely responsible for the payment of all
elcctric3l utility charges to the applicable utility company based upon the Radios '
usage ~f electricity and applicable tariff's .
4.3 Municipal Subscriber Program. In consideration of City's execution and delivery of this
Use Agreement. City shall have the right throughout the term of this Use Agreement to receive up
to the ma.ximum number specified below (based upon th e City's population) of free Ricochet®
basic service subscriptions . The number of free su bscriptions which the City may receive shall be
determined in accordance with the City's offi cial population, as shown on the latest available
census daL~, 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 berwcen
100,000 and 249,000, up to a maximum of fifteen (IS) free subscriptions ; (c) for municipal itic,
with a population of berween 250,000 and 500 ,000, up to a ma.ximum of twenty (20) fr .. e
sub scriptions; and (d) for municipalities ofover 500,000, up to a ma.ximum oftwenty-li\'c (25) f.ce
subscriptions . City shall designate one person who shall be responsible for ordering and receiv ng
any subscriptions . To take advantage of this program, the design3ted ind ividual should comact
Metricom's Network Real Estate Department at the address stated in§ 8 below . City 's right to use
the subscriptions shall commence at a rime that Ricoche t® service is commercially available in
the Ci ty and shall extend until the e.~. ·ra tion of the term of this Use Agreement or through the
length of time that Radios are deploy~,· •n the Public Rights of\\oay, whiche ver is longer. City's
use of the subscriptions shall be subjec, to the standard Ricoch et® 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 31 market rates current fror., time to time . City shall use all subscriptions
provided pursuant to this section solely fo : its o•:,n 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 bound3rie~ of the City (e.g., municipal schools , public
safety, or fire departments, 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 or prior to its cancellation or termination , as the case may be .
4.4 Reimbursement of City's Expenses . Metricom shall reimburse the r ·,y at City 's
standard rates for all reasonable expenses relat ing to the prepmtion , issuance, and
implementation of this Use Agreement, up to a ma.ximum of Two Thousand Dollars
(S2,000), promptl y upon receipt of bills , paid in voices , and such other documentation
as Metricom shall reasonably require . The reimbursement provided for in this § 4.5
shall not replace or excuse Metricom from the payment of any applicable City permit
fee for work undenaken in connection with this Use Agreement, nor shall it be
credited agains1 any other amounts due to the Ci ty pursuant to this Use . .\greement.
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4.5 Most-Favored Munlclpallty Clau-.. Slwuld Mclricom after the parties' execution
and delivery of this U~c Agreement enter into a right-of-way use agreement with
another municipality or county of the same size or smaller than the City in the
Denver Metropolitan Swistical Arca which agreement contains financial benefits for
such municipality or county which, taken as a whole and balanc~d with the other
terms of such agreement, are ln the City's opinion superior to those in this Use
Agreement, Mclricom shall, within sixty (60) days of the request by !he City, modify
this Use Agreement to incorporate the same or substantially similar supcriC'r benefits
and such other te rms . For the purposes of this § 4.6, the phrase "municipality or
county of the sam e size or smaller than the City" shall mea:i anoth ~r local
government whkh fall s into the same tier or classification as the City at th-. •. :.ne of
comparison according to the following categories : (a) local governments with a
population lcs.•. than 100,000; (b) local governments with a population berwccn
100,000 and .,50,000; (c) local governments with a population berween 250,000 and
500 ,000; and (d) local governments with a population greater than 500 ,000. For the
purposes of this § 4.6, county popul ati0i1 shall only consider the unincorporated
ponions ofa given county .
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5 RELOCATION OF RADIOS , Melricom understands and acknowledges that City may req~ire •
Mclricom to relocate one or more of its Radios, and Metricom shall at City's direction rel ocate 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, rep&ir, relocation, or maintenance ofa City project ; (b) because the Radio is interfering
with or adversel y affecting tbe existence and operation of any and all public and private facilities
as noted in Section 3.3 above ; (c) to protect or pmerve the public health or safety; or (d) becaus~
the Radi l' has been abandoned . In any such case , anti. to the extent practicab le in coru:ection with
the City 's plans , City shall use its best effons to afford Metricom 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 ac cordance with the foregoing pro vi sion , City shall be entitled to
relocate the Radios at Metric om 's sole cost and expense , without funher notice to Me tricom .
5.1 Reloca:lons al Metrlcom's Request. In the event Metricom desires to relocate any
Radios from one Munic ipal Facility to another, Metricom shall so advise City. City
will use its best effons to accommodate Metricom by making another reasonably
equivalent Municipal Facility ava ilable for use in accordance with and subject to the
terms and condit ions of th is L"se Agreement.
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5.2 Damaee to Public Way. Whenever the installation, repair, removai'or relocition
of Radios is re:;•1irecl or pennitted ander this Use Agreement, and ruch removal or
relocation shaU cause the public way to be damaged, Mctricom, ar its sole cost and
expense, shall promptly repair the public way, normal wear and tear excepted. If
Melricom docs nor rcp1Lir the site as just described, then the City shall have ii\e
option, upon fiftm, (IS) days' prior written notice to Mclricom, to perfonn or cause
to be perfonncd suc:h reasonable and necessary work on bcbalfofMctricom and to
charge Mclricom fo r th1: direct costs incurred by the City al City's standard rates .
Upon the rec e.ipt of a d.emand for payment and supporting documentation by the
City , Mclricom shall promptly reimburse the City for such cos ts. Metricom shall act
diligently ar,J without delay 10 repair, regardless of rime of day , any safety hazard
that occurs involvin g Mclricom's equipment and plant
6 lNDn!NIFICATION A.'1D WAIVER . Mctricom agree s to indemnify , dcfcnct protect, and hold
hannlc ss the City, its council membe r;, board members , commissioners , officers , and employees
from and against any and all claims, de mands, losses, damages, liabilities, fines , charges, penalties ,
admini strative and judicial proceedings and orders , judgements, remedial actions l,f any kind , all
costs and clc:inup actions of any kind , and all costs and expenses inc urred in connection therewith,
including reasonable attorney's fees and costs of defense (collectively , the "Losses") directly or
proximately resulting from Mctricom 's activities undertaken pursuant to this Use Agre"-mcnt ,
except 10 the extent arising from or caused ~•v the negli gence or willful misconduct of the :::ity, its
council members , board members . comn.:~s,oners, officers, employees , agents , or contractors .
6.1 Waiver of Claims. Metri com wai ves any and all claims, dem-mds, causes of action,
and rights ii 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 reasonab le conrrol of rhe City.
6.2 limitation of City 's Liability. The City shall be liable only for the cost of repair
to danugcd Radios arising from the ncgli cnce or willful misconduct of City , its
employees, agents, or contracto rs.
7 INSURA NCE . Metricom shall ob t 1in and maintain at all times during the term of this Use
Agreement commercial general iiabilcty insurance and commercial autom C\bile liability insurance
protect ing Metricom man amount no t les ~ than One Million Dollars (Sl,000,000) per occurrence
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(combined single limit), including bodily injury and property damage, and in an amount not less •
~ One Mi!Jiou Dollars (S 1,000,000) llffllual aggregate for each ~onal injlf)' liab.")ity and
products-completed operations. Su~h uisurince J>ll!icies sl!au liat th~ City, its co\i;icil members,
h9ard ~ commissioners, offici.;-,, and ehiployccs as tadditional insureds as respects any
covered liability arising out of Meni~om 's perfonnance of work under this Use Agreement.
Coverage shall be in an occurrence form and in accordance with the limits and provisions specified
• hm!in. When an umbrella or excess coverage is in effect, coverage shall be proviaed in following
. form. ,Such inslllllllce shall not be canceled or materially altereii to reduce the policy limits until
the City has received at least thirty (30) days' advance written notice of sur.h cancellation or
change. Metricom shall be responsible for notifying the City of such change or cancellation .
7.1 Filing of Certificates and E:idiinements. P>ior to the commencement of any work
pursuant to this Use Agreement, Metricom shall file with the City the required
original cenificate(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; pr.Hey expiration date; and specific
coverage amounts ; •
. that the City shall rer. .. v: thirty (30) days' prior notice of cancellation;
and
(c) that Metricom's insurance is primary as respects any other valid or
.:ollectible insurance that the City may possess, including any self-insured
retentions the City may have; and any other insurance tt.e City does possess
shall be considered excess insurance only and shall not be required to
contribute with this insurance .
The cenificate(s) of insurance with endorsements and notices shall be mailed to the City at
the address specified in § 8 below.
7.2 Workers' Compensation Insurance. Metricom shall obtain and maintain at all
times during the term of this Use Agreement statutorily required workers'
compensation insunncc for any of its employees and shall filmish the City with a
certificate showing proof of such coverage.
7 J Jnnrer Criteria. A:ny insurance provider of Metricom shall be admitted and
authorized to do business in the State of Colorado and shall be rated al least B+:XIII
in A.M. Best & Company's Insurance Guide. Insurance policies and certificates
issued by non-admitted insurance companies ar~ not acceptable.
7.4 SeverabWty 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 Ille City .
"Cross liability," "severnbility of im~rest," or ~separation of insureds" clauses shall
be made a pan of lhe commen:ia, general liability and commercial automobile
liability policies.
8 NOTICES. All notices which shall or may be given pursuant to Ibis Use Agreement shall be in
writing and delivered personally or transmitted (a) lhrough 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, ifa bani 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 ENGLEWOOD
Attn : Ken Ross, Director of Public Works
3400 South Elati Street
Englewood, CO 80110-2304
if 10 Melricom :
METRJCOM, INC.
Attn: Property Manager
980 University Avenue
Los Gatos, CA 95032
8.1 Date of Nodces; Chan&ln& Notice Address. Notices shall be deemed given upon
receipt in the case of personal delivery, three (3) days all:r deposit in the mail, or the
next day in the case of facsimile, email, or overnight delivery . Either party may from
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iJ time to time deaigmie Ill)' other addreu for lbi5 purpose l!y written notice to the
other party delivered in the mamer sci forth above.
9 TERMINATION. This Use Agreement may be terminated by either party umi forty five (45)
days' prior written notice 10 the other party upon a default of any covenant or lem! hereof by the
other party, which demult 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 fony-rive (45) days or fails the=fter diligently to prosecute such cure
10 completion), provided that the grac e period for any monetary default shall be ten ( I 0) days from
receipt of notice. Except as expressly provided herein, the rights granted under lbi5 Use Agreement
are irrevocable during the term. Notwilhslllnding the provisions regarding the opponunity 10 cure
defaults , the City may terminate this Use Agreement if(a) Meaicom becomes insolvent, unable or
unwilling to pay its debts, or is adjudged bankrupt; (b) Meaicom attempts to or docs prac tic e any
fraud or deceit in its conduct or relations with the City under this Use Agreement; or (c) the City
condemns substantially all of the propcny of Meaicom within the City by lawful exercise of
eminent domain. ,,
10 ASSIGNMENT. This Use Afl"Cemenl shall not be assigned by Meaicorn without the express
written consent of the City, which consent shall not be unreasonably withheld, conditioned, or
delayed. Notwithstanding the •oregoing, the transfer of the rights and obligations of Meaicom
hereunder to a parent , subsidi• y, or financially viable affiliate shall not be deemed an assignment
for the purposes of this Use •'_.1,::emen1.
10.1 Change In Control. The provisions of this § 10 shall also apply to a change in
control ofMeaicom involving the transfer of filiy-one percent (51 %1 or more of the
voting shares ofMeaico.:i by any one person or entity or group of persons or entities
under common control. II shall not be deemed reasonable for the City 10 withhold
its consent to any such proposed transfer, provided that (i) any such transferee will
have a fi.,ancial strength after the proposed transfer at least equal to that ofMetricom
prior to tht transfer, (ii) any such transf~rec assumes all the obligations ofMeaicom
hereunder, and (iii) Meaicom shall not be rele:i;ed from the obligations of this Use
Agreement by virtue of such transfer; unless the proposed transferee bas a record of
performance under similar agreements which is unacceptable to the City under a
reasonable standard of evaluation . Lack of prior specific experience in administering
a system providing the Services dcscnbcd in this Use Agreement shall not, by itself,
be deemed a reasonable basis for refusing or conditioning !ie City's consent.
Mcaicom shall give 10 the City written notice of any proposed transfer for which
notice is required hereunder and will provide ti1e City with whatever documentation
RJP i-of Way U11 dJTfflflOfl
City of E/tfW"l"O(Jd :: .Varic om . Inc.
•
the City may ra.sonaply require to evaluate,iJic pro~1transf8f, Thepty agrees
to iespood to any request for its COIISCDl hereunder within' one huodrcd iwcnty (120)
days after rec:eipl of such rcc;ucsL If the City fails to grant its consent withio such
one-hundred-twenty-day period, the City shall be deemed to have giantcd its consent
to the proposed transfer.
11 MlsCELLANEOUS PROVISIONS, The provisions which follow shall apply generally to the
obligations of the panics under this Use Agreement.
11.1 Nonexclusive Use. Metricom understands that this Use Agreement docs not provide
Mctricom with exclllSivc l15C of the Public Rights of Way or any Municipal Facili1y
and that City shall have the right to permit other providers of information or
commwtlcati ons services to install equipment or <ir:vices in the Public Rights of Way
and on Mwtlcipal Facilities ; however, City agrees promptly to notify Metricom of
the receipt of a written proposal for the installation of communications equipment
or devices in the Public Rights of Way or on Municipal Facilities and to obtain
wri"en assurance from the proponent of such installation that its installation or
operation will not interfere with any ofMetricom's existing operations. In addition,
City agrees to advise other providers of information or communications services of
the presence or planned deployment of the Radios in the Public Rights of Way and/or
on Municipal Facilities.
11 .2 Amendment of Use Agreement This Use Agreement may not be amended except
pursuant to a written instrument signed by both parties .
11.3 Severability of Provisions. If any one or more of the Provisions of this Use
Agreement shall be held by coun 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
Agreemer.l. Each party hereby declares that ii would have entered into this Use
Agreement and each Provision hereof irrespective of the fact that any one or more
Provisions be declared illegal, invalid, or unconstitutional.
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Cin• of f;np"100d :: MNICOM. ltte.
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11.4 Coutact1a1 Metncom. Metticom 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) aays a week, regarding problems or complaints resuldng fi:om
the attachment, installation, operation, maintenance, or removal 6f 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 Governlna Law; Arbitration. This Use Agreement shall be governed and
construed by and in accordance with the laws of the State of Colorado, without
reference to its conflicts oflaw principles. Any claim, controversy, or dispute arising
out of this Use Agreement shall be submined to mandatory mediation ih accordance
with the applicable rules of the American Arbitration Association before either pany
shall file any lawsuit in connection with this Use Agreement. The mediation shall
be conducted in the county where the City is located . There shall be no discovery
other than the exchange of information which is provided to the mediator by the
parties . The parties hereby waive all rights to and claims for monetary awards other
than compensatory damages.
11.6 Attorneys' Fees. Should any dispute arising out of this Use Agreement lead to
arbitration or litigation , the prevailing perty shall be entitled to recover its costs of
such action, including reasonable attorneys' fres.
11. 7 Exhibits. All exhibits referred to in this Use Agreement and any addenda,
attachments, and schedules which may from time to time be referred to in any duly
executed amendment to this Use Agreement are by such reference incorporated in
this Use .Agreement and shall be deemed a part of this Use Agreement.
11.8 Successon and Assigns. This Use Agreement 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 "hich any Radio is located.
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Clly of £arl,wood : : MttriCOM, !IIC.
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•
11.10 Co111e11t Criteria. In any ci:se where Iba approval or ~ of O(!C party herao ii
required, requested or otherwise to be a;ven Ullder Ibis Use Agreeineii~ such party
shall not lllll'CaSOnably delay,, condition, or withhold its ~ya! op:onsen~ ,~,.
I
11.11 Waiver of Breach. The waiver ,y 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 ofany subsequent breach or violation of the same or any other Provision of
this Use Agreement.
11.12 Representadons and Warr:U1des. Each of the p&!1ies to Jhis Agreement represents
and warrants that it bas the full right , pow!:,, legal c~pacity, 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
N consent of any other person or entity in connection herewith, except as provided
in§ 31 above. In addition, City specifically represents and covenants that City owns
all Municipal Facilities for the use of which it is collecting from Metricom the
Annual Fee pursuant to ~ 4.1 above .
11.13 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.
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In witness whef'eof, 111d in orderio bimflhl!mse~y ro the terms
and colldlli01¥ of thia Use ~ent, lhe duly autborizcd ~talives 1ot the panics have
executed thia Use Apeement u of ihc Effective Dale. ' ' -
City : Cm OF ENGLEWOOD, a Colorado municipal corporation
I By :
Its :
Date: -------~2000
,n M~lri com : METRICOM, INC., a Delaware corporation
By:
Its :
Date : -------~ 2000
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Date
June 5, 2000
Initiated By
COUNCIL COMMUNICATION
I
Agan~ 1111m
11 a i
'
Subject
Rlg~-Way Use Agreement
with Metricom
Metricom , Inc . I
Staff Source
Nancy Reid, Assistant City Attorney
COUNCIL GOAL AND PREVIOUS COUNCIL ACTION
Council considered a bill for an ordi nance authorizing a righ~-way use agreement with Metricom,
Inc . at the November 16, 1998 Council Meeting. Sholtty thereafter, Metricom representatives
announced that the company was reconsidering its launch in the Denver area mar11et. At the
December 21 , 1998 Council meeting , the bill for an ordinance authorizing the Metricom agreement was
tabled indefinitely .
RECOMMl:NDED ACTION
Staff recommends that Council consider a new proposed Right-of-Way Use Agreement with Metricom,
Inc .
BACKGROUND, ANALYSIS AND ALTERNATIVES IDENTIFIED
Metricom , Inc. is a telecommunications company that operates a mobile microcellular di<lr ~I rad io
communications networ11 known as 'Richochef.' The Rich~'<'.i1et9 system is designed to •;perate
through the use of small radio transmitters located on City facilities, as well as facilities owned by third
parties . Richochef would allow subscribers mobile access to data via desktop computers ~1rough its
aiways-on high-speed system . Metricom seeks the City of Englewood 's approval to install its facilities
and begin operations in Englewood .
Metricom is 11H1ntering the Denve r area market after a significant capital infusion, and is seeking
agreements with a number of IT'etro area communities. The attached agreement is similar to the
agreement proposed in 1998 and follows the updated Metricom model :igreemer.: .:i rafted by the
Greater Metro Telecommunications Consortium .
The agreement is for a term of nine years with three fiv e-yesr renewal options .
FINANCIAL IMPACT
The propose.; agr~ement calls for a 'Right-of-Way' fee of five percent (5%) of Metricom 's Adjusted
Gross Reve nues of subscriber ac.counts with billing addresses in the City of Englewood .
UST OF ATTACHMENTS
Proposed BIii fo r an Ordinance