HomeMy WebLinkAboutO-1999-2327
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ORDINANCE NO. 99- 2 3 2 7 · ~
AN ORDINANCE APPROVING AND AUTHORIZING A RIGHT-OF-WAY USE
AGREEMENT BETWEEN THE CITY OF LA PORTE AND METRICOM, INC. 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 AND AUTHORIZING THE
CITY MANAGER TO SIGN SAID RIGHT -OF-WAY USE AGREEMENT; MAKING
VARIOUS FINDINGS AND PROVISIONS RELATING TO THE SUBJECT; FINDING
COMPLIANCE WITH THE OPEN MEETINGS LAW; PROVIDING AN EFFECTIVE
DATE HEREOF.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF LA PORTE:
Section 1. The City Council hereby approves and authorizes the Right-of-Way
Use Agreement in substantially the form as shown in the document which is attached
hereto and incorporated herein by this reference, by and between the City of La Porte
and Metricom, Inc. The City Manager is hereby authorized to execute such document
and all related documents on behalf of the City of La Porte. The City Secretary is hereby
authorized to attest to all such signatures and to affix the seal of the City to all such
documents
Section 2. The City Council officially finds, determines, recites, and declares
that a sufficient written notice of the date, hour, place and subject of this meeting of the
City Council was posted at a place convenient to the public at the City Hall of the City for
the time required by law preceding this meeting, as required by the Open Meetings Law,
Chapter 551, Texas Government Code; and that this meeting has been open to the public
as required by law at all times during which this ordinance and the subject matter
thereof has been discussed, considered and formally acted upon. The City Council
ORDINANCE NO. 99-2 . 7
Page 2
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further ratifies, approves and confirms such written notice and the contents and posting
thereof.
Section 3. This Ordinance shall be effective from and after its passage and
approval, and it is so ordered.
PASSED AND APPROVED, thisd.~day of ~
,1999.
CITY OF LA PORTE
By: ~~~~
. man L. Malone,
Mayor
ATTEST:
~b..{'J . &1JnI
a ha A. Gillette,
City Secretary
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LA PORTE
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m IDS RIGHT-OF-WAY USE AGREEMENT (this "Use Agreement") is dated as of
, , 1999, (the "Effective Date"), and entered into by and
between the CITY OF LA PORTE, a Texas municipal corporation (the "City"),
and METRICOM, INC., a Delaware corporation ("Metricom").
i&etita15
A. Metricom is in the business of constructing, maintaining, and operating a
wireless digital data communications radio network known as Ricochet<ID, 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.
B. Subject to reasonable municipal regulations concerning the time, location,
manner of attachment, installation, and maintenance of its facilities, Metricom has the
right under federal and Texas law to install facilities in municipal public ways.
C. 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<ID.
Agrtttlltnt
Nnm, tlt.er.efnr.e, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree to the following
covenants, terms, and conditions:
1 DEFINITIONS. The following definitions shall apply generally to the provisions of
this Use Agreement:
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, license, charge, fee, imposition, tax, or
levy of general application to Persons doing business in the City lawfully
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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
accrued on Metricom's books for Services provided to its customers with billing
addresses in the City, excluding (i) the Right-of-~ay Fee, if any, payable
pursuant to ~ 4 et seq. below and any utility users' tax, telecommunications tax,
franchise fees, or similar tax or fee; (ii) local, state, or federal taxes collected by
Metricom that have been billed to the subscribers and separately stated on
subscribers' bills; and (iii) 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" shall mean the date that the first
Radio is installed by Metricom pursuant to this Use Agreement.
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 Use
Agreement, 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 (to the height of any Municipal Facilities), along, across, and over
the public streets, roads, lanes, courts, ways, alleys, boulevards, and places,
'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.
Riglzt-of-Way Use Agreement
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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
Use Agreement that defines or otherwise controls, establishes, or limits the
performance required or permitted by any party to this Use Agreement. All
Provisions, 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 Services. "Services" means the wireless digital communications services
provided through Ricochet@ by Metricom.
1.16 City. "City" means the City of La Po!te.
1.17 Use Agreement. "Use Agreement" means this nonexclusive Use
Agreement and may also refer to the associated right to encroach upon the
Municipal Right of Way conferred hereunder.
2 TERM. This Use Agreement shall be effective as of the Effective Date and shall
extend for a term of five (5) years commencing on the Installation Date, unless it is
earlier terminated by either party in accordance with the provisions herein. The term of
this Use Agreement shall be renewed automatically for three (3) successive terms of
five (5) years each on the same terms and conditions as set forth herein, unless either
party notifies the other party of its intention not to renew not less than thirty (30)
calendar days prior to commencement of the relevant renewal term.
3 SCOPE OF USE AGREEMENT. Any and all rights expressly granted to Metricom under
this Use Agreement, 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 Use Agreement shall be
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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 Use Agreement may, at the City's option, be subject to the
reasonable prior review and approval of the City.
3.1 Attachment to Municipal Facilities. The City hereby authorizes and
permits Metricom t<:> 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<ID and
providing Services to Persons located within or without the limits of the City. In
addition, subject to the provisions of ~ 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.
3.2 Attachment to Third-Party Property. Subject to obtaining the permission
of the owner(s) of the affected property, the City hereby authorizes and permits
Metricom 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 own~r responsible. City
agrees 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.
3.3 No Interference. Metricom in the performance and exercise of its rights
and obligations under this Use Agreement 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, cerial 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 Use
Agreement. City agrees to require the inclusion of the same prohibition on
interference as that stated above in all agreements and franchises City may enter
into after the Effective Date with other telecommunications providers and
carriers.
Right-of-Way Use Agreement
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3.4 Compliance with Laws. Metricom shall comply with all applicable Laws
in the exercise and performance of its rights and obligations under this Use
Agreement.
3.5 Obtaining ~equired Permits. If the attachment, installation, operation,
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
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,
Metricom promptly shall furnish to the City suitable documentation showing the
exact location of the Radios in the Municipal Right of Way.
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 Use Agreement, including those set forth below.
4.1 Right-of-Way Fees. In order to reimburse City for any costs it may incur in
connection with Metricom's entry upon and deployment with the Municipal
Right of Way, Metricom shall pay to the City, on an annual basis, an amount equal
to five percent (5%) of Metricom's Gross Revenues (the "Right-of-Way Fee"), which
amount will 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 commercially paying subscribers within the
City using Radios installed pursuant to this Use Agreement and ending on the date
of termination of this Use Agreement, and shall be due on or before the 45th 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 elapsing since the end of the last calendar year 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 detennination of the correct amount.
Right-of-Way Use Agreement
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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
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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
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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.
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 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. Notwithstanding anything to the contrary
in this Use Agreement, with respect to damage to the Radios or the Ricochet@
system caused by the City, 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 and in no event shall be liable for any
consequential, noneconomic, or punitive damages in connection with such
damage, including damage to the Ricochet@ system by virtue of damage to any
particular Radio or Radios.
7 INSURANCE. Metricom shall obtain and maintain at all times during the term of this
Use Agreement 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
Metricom's performance of work under this Use Agreement. Coverage shall be in an
occurrence form and in accordance with the limits and provisions specified herein.
Claims-made policies are not acceptable. When an umbrella or excess coverage is in
effect, coverage shall be provided in following form. Such insurance shall not be
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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 Use Agreement, 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, 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 ~ 8 below.
7.2 Workers' Compensation Insurance. Metricom shall obtain and maintain
at all times during the term of this Use Agreement 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.
Right-ofWay Use Agreement
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8 NOTICES. All notices which shall or may be given pursuant to this Use Agreement
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:
if to the City:
CITY OF LA PORTE
Attn: City Secretary
604 West Fairmont Parkway
La Porte, TX 77572
if to Metricom:
METRlCOM, 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.
9 TERMINATION. This Use Agreement 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 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), provided
that the grace period for any monetary default shall be ten (10) days from receipt of
notice. Except as expressly provided herein, the rights granted under this Use
Agreement are irrevocable during the term.
10 AsSIGNMENT. This Use Agreement 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, successor, or financially
viable affiliate shall not be deemed an assignment for the purposes of this Use
Agreement.
Rigllt-ofWay Use Agreenrent
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11 MISCELLANEOUS PROVISIONS. The provisions which follow shall apply generally to
the obligations of the parties under this Use Agreement.
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 anyone 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 anyone 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.
11.5 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.
Right-of-Way Use Agreement
City of La Porte :: Metricom, Inc.
page 11 of13
5/l.1/1999 12:43 PM
la porte2.doc [05mas28row98ua1}
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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.
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 Successors 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 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 Use Agreement,
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 Use Agreement 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 Use Agreement.
11.12 Representations and Warranties. Each of the parties to this Agreement
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 S 3.2 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.
Right-ofWay Use Agreement
City of La Porte :: Metricom, Tnc.
page 12 of13
5/1.1/199912:43 PM
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.1Jn witness w4.er.e.af, and in order to bind themselves legally to the terms
and conditions of this Use Agreement, the duly authorized representatives of the
parties have executed this Use Agreement as of the Effective Date.
City:
CITY OF LA PORTE, a Texas municipal corporation
By: CXJ~-k ~
Robert T. Herrera, City Manager
Date: S~ I. , 1999
Metricom:
METRICOM, INC., a Delaware corporation
By: )40\ !.\l Mr
o MArquart, Esq.
{name typed] General Counsel &
Its: Senior VP Administration
Date: .::r\lAlE. z., ,1999
Approved As To Form
=~~~~
Date: f'-
Rigllt-of-Way Use Agreement
Cify oflA Parle:: Metricom, Inc.
page 13 of13
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~)) l~Jtketaro(c:<D)mro G
980 University Avenue
Los Gatos, CA 95032
July 1, 1999
Via Overnight Mail
City of La Porte
604 West Fairmont Parkway
La Porte, TX 77572
Attention: Martha Gillett
RE: Right-of- Way Use Agreement - An Agreement entered into by and between
the City of La Porte, a Texas municipal corporation, and Metricom, Inc., a
Delaware corporation, dated June 21, 1999 (the "Agreement'').
Dear Ms. Gillett:
Enclosed please find a copy of the original, executed Agreement by and between
the City of La Porte and Metricom, Inc. dated June 21, 1999.
Thank you very much for your attention to this matter. Should you have any
questions concerning this agreement, please feel free to contact me at (408) 399-8204.
Sincerely,
/.~
.~~--' .
--~ ....
David M. Settles
Regional Contracts Supervisor
Enclosure
Telephone:
408039908200
FAX:
408035401024
':ACORD' -_..
CERTIFIC E OF LIABILITY INSU CE DATE (MMlDDIYV)
III 07101/99
.. . . . -- . -.."
PRODUCER WSSF THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION
ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE
Woodruff-Sawyer & Co. HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR
220 Bush Street, 7th Floor ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW.
San Francisco,CA 94104-0000 COMPANIES AFFORDING COVERAGE
415-391-2141 COMPANY
A ChubbNigilant Insurance CO.
INSURED 007815 COMPANY
Metricom Inc. B ChubblFederal Insurance Co.
980 University Avenue COMPANY
Los Gatos, CA 95032-2375 C St. Paul Fire & Marine Insurance CO.
COMPANY
I D
COVERAGES '. " . ~... .. ~ ... - --. - ..
. .
THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD
INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS
CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS,
EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS.
CO TYPE OF INSURANCE POLICY NUMBER POLICY EFFECTIVE POLICY EXPIRATION LIMITS
LTR DATE (MMIDDIYY) DATE (MMIDDIYY)
GENERAL LIABILITY GENERAL AGGREGATE $ 1,000,000
o COMMERCIAl GENERAL LIABILIlY PRODUCTS - COMP/OP AGG $ 1,000,000
A I L JI CLAIMS MADE ~ OCCUR 35291948 09/30/98 09/30/99 PERSONAL & ADV INJURY $ 1,000,000
= OWNER'S & CONTRACTOR'S PROT EACH OCCURRENCE $ 1,000,000
= FIRE DAMAGE (Anyone fire) $ 1,000.000
MED EXP (Anyone person) $ 10,000
gTOMOBILE LIABILITY
COMBINED SINGLE LIMIT $ 1,000,000
ANY AUTO
Q ALL OWNED AUTOS BODILY INJURY $
B ~ SCHEDULED AUTOS 73164541 09130/98 09/30/99 (Per person)
0 HIRED AUTOS BODILY INJURY
'D $
NON.oWNED AUTOS (Per eccident)
'0 PROPERTY DAMAGE $
J
2"ARAGE LIABILITY AUTO ONLY. EA ACCIDENT $
i== ANY AUTO OTHER THAN AUTO ONLY:
EACH ACCIDENT $
AGGREGATE $
EXCESS LIABILIlY EACH OCCURRENCE $
R UMBRELLA FORM AGGREGATE $
OTHER THAN UMBRELLA FORM $
WORKERS COMPENSATION AND . L.t'JI ~~~Ifr.Ws II JIOJ,t'-
EMPLOYERS' LIABILITY EL EACH ACCIDENT $ 1,000,000
C THE PROPRIETORl 18 INCL WV A9401217 09/30/98 09130/99 EL DISEASE - POLICY LIMIT $ 1,000,000
PARTNERSlEXECUTIVE 1,000,000
OFFICERS ARE: EXCL EL DISEASE - EA EMPLOYEE $
OTHER
DESCRIPTION OF OPERATlONS/LOCATIONSNEHICLESlSPECIAL ITEMS
City of LaPorte, itscouncil members, officers & employees are included as additional insureds but only as respects liability arising out of Metricom's
performance of work under Right of Way Use Agreement dated 6121/99 as per form 40-02-0004 attached.
CERTIFICATE HOLDER CANCELLATION 10 pay Notice For Non':P~Y...II!~~t~f~~.!!!i:!1!L __.
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE
City of LaPorte EXPIRATION DATE THEREOF, THE ISSUING COMPANY WILL ENDEAVOR TO MAIL
Atto: Martha Gilett, City Secretary ~ DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT,
640 West Fairmont Parkway BUT FAILURE TO MAIL SUCH NOTICE SHALL IMPOSE NO OBLIGATION OR LIABILITY
LaPorte, TX 77572- OF ANY KIND UPON THE COMPANY, P'$ AGENTS OR REPRESENTATIVES.
AUTHORIZE~NTATIVE .#' ,0, rA
/1,..1 ~/"10 / //h
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CO"\7"eraCi€
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Amendment
e;::,.re-:..:-::a
.---- '-
09/30/98
!.'He IS INSURED: To.:: writ:! IS :NSt!F.=J FRGV~S!ON IS A~ENuS TO !NC'...!.JOe:
AS AN ADorTIONAL rN:~?E~ r.~E F~SCN OR ORG~N!ZAT!CN DE=!GNA~:J
SE-.a~: !NCL!.!D!NG ~ =::7ED CR ~?CirN7::J r'!~""EE.~S, CF:=-!C!.~S AND ~PL.OY-~S,
BUT ONLY ..I'M RES?E::7 iO ~~E CC~r'!E~C!~L G:NERAL L!Aa!L!iY FRCV!DED
BY rn!S pelley AND ~F.:S1NG CUT OF .~~ OP~~~7!ONS OF ~~E NA~ED rN~~RED
IN C=NNE:7!CN ~!lH .~E ~G?~~ENT F~F. ~ORK ?:~F~=~D =~~E!N i~E
N~~E::) I NSi.iRED ANO ii-iE ?:.~stN OR ~~.., Z ZA i ! ON OE5 Z G'NA T::J ;ac~.
IT rs F":JF.7i-iE; ~G?E:J. 'i1-!!: r;~St!F~NC: rc: F~r~~F.Y OVE::! ~NY 7"~E~
C=lLE::7!:lE rNSiJR":'NC:: CNl''!':'!: RES?:::7: T:~E OF:?ATiGN QF iHE N.:~::n
INSURED.
-'
ANY MUN!C!?AlITf F.E~~!?EJ i~ 5E NA~:J 5Y ANY CONTRACT Q~ AG?~~~~,
F~CV!OED =JC~ cnNi?~C: OF. ":'G?E;~EN7 IS EXE::!.!iEJ F~!GF. iO ANY LOSS,
AND CNlY AS ?:=?~::7S C?E~A7::NS CF CR ON E:~Al~ OF. iHE NA~ED !NSUR~.
q, } J '/~ A (\/\ . .
{ I IJ I I~ . J. . - -:.: _.:- ,.-..-.,.."."..
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Metricom . Investor Relations
~ /tI
HOME B~y .
Now
< -
'-...
ComDany
Overview
SELECTED CONSOLIDATED
FINANCIAL DATA
Todav's Stock
Price
RECEIVED
MAY 2 0 1999
ASST. CITY MGR.JFINANCE j
lof3
05/18/1999 5:40 PM
Metricom . Investor Relations
Quarterly
Financials
Annual ReDorts
Reauestan
Investor
Information Kit
Refer A Frlendl
A1nd yeu
roc;"hre two
. "
months '(reo
servlcel
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http://www.ricochet.netlinvestors/annuaIl1996/selected.htm
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YEARS
ENDED
DECEMBER
31,
(In thousands,
except per share
data)
1992
1993
1994
1995
1996
STATEMENT
OF
OPERATIONS
DATA:
Revenues:
Product
revenues
~ervice revenues
Development
.. . contract
revenues
Total revenues
$3,423 $8,173 $19,580
27
$4,995
789
$4,996
2,158
2,982 1,884 1,957
6,405 10,057 21,564
5,784
7,154
Costs and
expenses:
Cost of product 3,197 6,401 15,116 3,134 2,528
revenues
Cost of service 1,244 9,360 16,587
revenues
Cost of
development 2,894 1,932 1,890
contract
revenues
Research and 1,809 3,256 8,668 9,145 9,896
development
Selling, general
and 3,366 5,027 9,695 12,029 19,495
administrative
Total costs and 11,266 16,616 36,613 33,668 48,506
expenses
Loss from (4,861) (6,559) (15,049) (27,884) (41,352)
operations
Interest expense (1,310)
Interest income, 408 410 3,300 4,363 3,317
net
Net loss $(4,453) $(6,149) $(11,749) $(23,521) $(39,345)
Net loss per $(0.61) $(0.74) $(0.96) $(1.79) $(2.93)
share
Weighted
average shares 7,286 8,353 12,202 13,240 13,473
outstanding
05/18/1999 5:40 PM
Metricom - Investor Relations
e
http://www.ricochet.netlinvestors/annuaI11996/selected.htm
e
BALANCE
SHEET
DATA:
1992 1993 1994 1995 1996
Cash and $11,888 $25,020 $89,588 $64,415 $65,221
investments
Working 14,626 28,545 73,012 46,771 57,738
capital
Property and 1,702 1,990 10,170 17,717 33,606
equipment
Total assets 17,472 32,483 105,534 86,076 101,799
Long-term - 45,000
debt
Stockholders' 15,739 29,171101,516 80,374 43,306
equity
." . . ....... - ..............,."
Back to Metricom 1996 Annual Report Table of Contents or go to next section
Management's Discussion and Analysis of Financial Condition and Results of
Operations
Home I Contact
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30f3
Copyright 1999 @ Metricom,
Inc. Privacy Policy
05/18/1999 5:40 PM
E*TRADE
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Page 1 of2
III
Start with quotes: 0 Summary @ Detailed
Income Statements
I":~'__ _. ...... 15ell25 HE @ Mkt (353/8) Executed
~ALER.... -
ponsored by: @Pi
o Free Real-Time
B May 20,19992:21
PM EDT
Income Statement for METRICOM INC (MCOM)
Annual Income
Fiscal Year Ended: 1998 1997 1996
Net Sales: 15,859,000 13,439,000 7,154,000
Cost of Goods: 33,360,000 32,424,000 16,862,000
Gross Profit: -17,501,000 -18,985,000 -9,708,000
R & D Expenditure: 27,313,000 13,212,000 13,920,000
Sales G & A: 37,326,000 24,800,000 17,724,000
Inc Bef Dep & Amort: -82,140,000 -56,997,000 -41,352,000
Depreciation & Amort:
Non-Operating Inc: 1,915,000 1,820,000 3,317,000
Interest Expense: 3,939,000 4,151,000 1,310,000
Income Before Tax: -84,164,000 -59,328,000 -39,345,000
Prov for Inc Taxes:
Minority Int (Inc):
Invest Gains/Losses:
Other Income:
Net Inc Bef Ex Items: -84,164,000 -59,328,000 -39,345,000
Extraordinary Items:
Net Income: -84,164,000 -59,328,000 -39,345,000
Outstanding Shares: 18,793,055 13,819,276 13,555,445
COPYRIGHT @ 1999 DISCLOSURE INCORPORATED. ALL RIGHTS RESERVED.
,..------ ~--,-~_.~~--- -
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Page 1 of2
III
Start with quotes: 0 Summary @ Detailed
Annual Balance Sheets
rS ALERTS"' Lsell 25 HE @ Mkt (35 3/8) Executed
ponsored by: @'8
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crt May 20, 1999 2: 19
PM EDT
Balance Sheet for METRICOM INC (MCOM)
Annual Assets
Fiscal Year Ended: 1998 1997 1996
Cash On Hand: 19,141,000 9,784,000 15,246,000
Marketable Securities: 4,390,000 46,825,000
Receivables: 1,450,000 2,278,000 1,126,000
Inventories: 3,046,000 3,011,000 3,115,000
Raw Materials:
Work in Progress:
Finished Goods:
Notes Receivable:
Other Current Assets: 1,522,000 1,124,000 1,744,000
Total Current Assets: 25,159,000 20,587,000 68,056,000
Prop., Plants & Equip.: 5,555,000 25,875,000 26,776,000
Accum. Depreciation:
Net Plants & Equip.: 5,555,000 25,875,000 26,776,000
Subsidiary Invest.: 58,000 300,000 3,150,000
Other Non-cur Assets:
Deferred Charges:
Intangibles:
Deposits and Other: 3,694,000 4,341,000 3,817,000
Total Assets: 34,466,000 51,103,000 101,799,000
Annual Liabilities and Net Worth
Fiscal Year Ended: 1998 1997
Notes Payable: 40,000 5,000,000
Accounts Payable: 5,061,000 3,143,000
. Current Long-term Debt:
Current Capital Leases:
Accrued Expenses:
Income Taxes:
Other Current Llab.:
Total Current Liab.:
Mortgages:
Deferred Charges/lnc:
1996
5,517,000
10,662,000
5,464,000
4,801,000
680,000
16,443,000
1,129,000
14,736,000
10,318,000
.../ AppLogic+ResearchSymbol?INFOTYPE=ANNUAL_BET A_BALANCE_ SHEETS&InputSe 5/20/99
E*TRADE e e Page 2 of2
Convertible Debt:
Long-term Debt: 55,098,000 45,000,000 45,000,000
Non-cur Capital Leases:
Other Long-term L1ab.: 768,000
Total liabilities: 71,541,000 59,736,000 56,086,000
Minority Int (Liab): 5,184,000 5,184,000 2,407,000
Preferred Stock:
Common Stock Net: 19,000 14,000 14,000
Capital Surplus: 191,184,000 135,466,000 133,298,000
Retained Earnings: -233,462,000 -149,298,000 -89,970,000
Treasury Stock:
Other Equities: 1000 -36,000
Shareholders' Equity: -42,259,000 -13,817,000 43,306,000
Total Liab. and Worth: 34,466,000 51,103,000 101,799,000
COPYRIGHT@1999 DISCLOSURE INCORPORATED. ALL RIGHTS RESERVED.
System response and account access times may vary due to
market conditions, system performance, and other factors.
Copyright@ 1999 E*TRADE Securities. Inc. All rights reserved.
Member NASD/SIPC. User AGreement. Privacy Statement. Version 1.0
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