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e e 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 Use Agreement occurring prior thereto, nor shall the acceptance by the City of any such payments preclude the City from later establishing that a larger amount was actually due or from collecting any balance due to the City. 4.1.1 Reduction of Right-of-Way Fee by Amount of Utility Users or Telecommunications Tax. Notwithstanding anything to the contrary in this Use Agreement, if the Services are subject to a utility users tax, telecommunications tax, or other similar tax or fee by operation of the City's Municipal Code, 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. 4.1.2 Accounting Matters. Metricom shall keep accurate books of account at its principal office in Los Gatos or such other location of its choosing for the purpose of determining the amounts due to the City under ~ 4.1 above. The City may inspect Metricom's books of account relative to the City at any time during regular business hours on 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. 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 Use Agreement, City shall have the right throughout the term of this Use Agreement 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<ID 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 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 Right-of-Way Use Agreement CitJj o/La Porte:: Metricom, Inc. page 6 0/13 5/l.l/l999 12:43 PM la porte2.doc [OSmas28row98ua1]