1999-05-17 Special Called Meeting and Workshop Meeting

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11.1 Nonexclusive Use. Metricom understands that this Use Agreement 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; however, City agrees promptly to notify Metricom of the receipt of a proposal for the installation of communications equipment or , devices in the Municipal Right of Way or on Municipal Facilities. In addition, 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 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 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 Use Agreement and shall not affect the legality, validity, or constitutionality of the remaining portions of this Use Agreement. Each party hereby declares that it 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. 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. 1.1.5 Governing Law; Jurisdiction. This Use Agreement 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 Use Agreement, the parties agree that trial of such action shall be vested exclusively in the state courts of Texas, County of Harris, or in the United States District Court for the Eastern District of Texas. 11.6 Attorneys' Fees. Should any dispute arising out of this Use Agreement lead to litigation, the prevailing party shall be entitled to recover its costs of suit, including reasonable attorneys' fees. Right -of -Way Use Agreement City of U Porte:. Metricom, Inc. page 11 of 13 la portel.doc [QSr..na7Arm,,QR11a11 4116119" 2:36 PM