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e e 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. 5 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 use its best efforts 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 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 Metric om' s Request. In the event Metricom desires to relocate any Radios from one Municipal Facility to another, Metricom shall so advise City. City will use its best efforts to accommodate Metricom by making another reasonably equivalent Municipal Facility available for use in accordance with and subject to the terms and conditions of this Use Agreement. 5.2 Damage to Municipal Right of Way. Whenever the removal or relocation of Radios is required or permitted under this Use Agreement, and such removal or relocation shall cause the 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 accordance with applicable Laws, normal wear and tear excepted. If Metricom does not repair the site as just described, then the City shall have the option, upon fifteen (15) days' prior written notice to Metricom, to perform or cause to be performed such reasonable and necessary work on behalf of Metricom and to Rigllt-of-Way Use Agreement City of lA Porte :: Metricom, Inc. page 70f13 la porle2.doc [05mas28raw98ua1] 5/21/1999 12:43 PM