HomeMy WebLinkAboutResolution 1999-025
RESOLUTION NO. 99-25
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF NORTH RICHLAND
HILLS, TEXAS, that:
1.
The City Manager be, and is hereby, authorized to execute the attached Licensing
Agreement with Metricom, Inc. as the act and deed of the City.
PASSED AND APPROVED this 29th day of March,1999.
APPROVED:
Charles Scoma, Mayor
ATTEST:
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Patricia Hutson, City Secretary
APPROVED AS TO FORM AND LEGALITY:
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Rex McEntire, City Att r
APPROVED AS TO CONTENT:
K,c~~~
Randy Shiflet, Depú"ty City Manager
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Apri I 26, 1999
VIA OVERNIGHT MAIL
CITY OF NORTH RICHLAND HILLS
Attn: Randy Shiflct
7301 N. E. Loop 820
North Richland Hills, TX 76180
(817) 581-5500
RE: Licensing Agreement Betwecn thc City Of North Richland Hills,
Texas and Metricolll, Inc. For the Construction and Operation or A
Comlllunication System
Dear Mr. Shiflet:
Encloscd plcasc find the City's copy of the fully cxecuted Licensing Agrccmcnt with
Mctricom, Inc. If you should have any questions, please do not hesitate to ca ] Mr. GcolT
Kay at (972) 620-4190 or myself at (562) 988-9380.
Sincerely,
!ç¡:Jud-L·Sah~
I-Ieidi Sargent
Market Coordinator
A LICENSING AGREEMENT BETWEEN THE CITY OF NORTH
RICHLAND HILLS, TEXAS, AND METRICOM, INC. FOR THE
CONSTRUCTION AND OPERATION OF A COMMUNICATION SYSTEM
The City of North Richland Hills, State of Texas (hereinafter
referred to as the "City"), hauing determined that the financiaL
legal, and technical abi I ity of METRICOM, INC. ("METRICOM") is
reasonably sufficient to prouide seruices, facilities, and
equipment necessary for a state of the art wireless and wired tele-
communication system, does hereby ordain as follows:
SECTION 1
DE[lttLIIÜtLOLEBMS
1.1 IEB~S. For the purpose of this License, the following
terms, phrases, words, and abbreuiations shall haue the meanings
ascribed to them below. When not inconsistent with the context,
words used in the present tense include the future tense, words in
the plural number include the singular number, and words in the
singular number include the plural number:
1.1.1 MUNICIPAL_flCCESS_~EBflGRJ1tt. Municipal Access Program
means the discount program described in §4.9 below.
a.
"Affiliate" means an entity, which
is owned or contro lIed by, or
ownership with Grantee.
owns or controls,
is under common
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b, "City" means the City, of North Rlchland Hills,
Texas or the lawful successor, transferee, or
assignee thereof.
c. "Communication Seruice" shall mean any wireless
communication seruices prouided by Grantee ouer its
"Commu n i ca t i on System" (as here i naf ter def i ned ),
Communication Seruice shall not include cable
teleuision seruices or an open uideo system as
def i ned under the f edera I law or I oca I exchange
telephone seruice or other certificated
telecommunications seruices, as certificated by the
Public Utility Commission for which a separate
license would be required to prouide such seruices.
d. "Communication System" shall mean Grantee's Ricochet
microcellular data transmission system of poletop
radio receiuers/transmitters, modems, and any
associated conuerters, equipment or facilities
designed and constructed for the purpose of
producing, recelulng, amplifying or distributing
data packets by forms of electronic or electric
signals to or from subscribers or locations within
the City.
e. "FCC" means Federal Communications Commission,
or successor gouernmental entity thereto.
f.
"Grantee"
means METRICOM,
INC. ,
a
Delaware
corporation, or the lawful successor, transferee,
or assignee thereof, with the consent as required
in this agreement.
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g 'Gross Re uenue" sha 11 mean all rece i pt s co 11 ected by
Grantee f rom customers with bill i ng addresses to
include zip code plus four digits within the
corporate limits of the City for all communications
and communication-related operations and seruices
within the corporate limits of the City as well as
any other reuenue arIsIng from operation or
possession of this License. By way of example, but
without 1 im i tat ion, "Gross Reuenue" i nc ludes a II
reuenues from the sale or lease of customer premise
equipment, installation charges, access charges
paid to Grantee by other carriers, charges to
customers, subscribers and other users of the
Communication SystemJ license fees and occupation
taxes surcharged to customers, and the lease or re-
sale of lines or circuit paths to third parties.
I'Gross Re uenue II does not i nc 1 ude C i ) re uenues
uncollectible from customers Cbad debts), Cii)
discountsJ Ciii) stateJ local, or federal taxesJ or
Ciu) the license fee payable to the City pursuant
to § 4.1.2Ca) below.
h.
"Person II
means
an indiuidual, partnership,
joint stock company, trust
gouernmental entity.
association,
corporation, or
1. "Public Way" shall mean the surface of, and the
space aboueJ any public street, highway, freewaYJ
br idge, land path, alley, court J bou leuard,
sidewalkJ parkwaYJ lane, public way, driueJ circle,
or other pub 1 ic I" ight-of-way, i nc Iud i ng, but not
1 imited to, pub 1 ic uti 1 ity easements, dedicated
utility stripsJ or rights-of-way dedicated for
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compatible uses and any temporary or permanent
fixtures or improuements located thereon now or
hereaf ter he 1 d by the City 1 n the Ser u ice Area
which shall entitle the City and Grantee to the use
thereof for the purpose of installing, operating,
repairing, and maintaining the Communication
System. Pub 1 ic Way sha 11 a Iso mean any easement
now or hereafter held by the City within the
Seruice Area for the purpose of public trauel, or
for ut i 1 i ty or pub 1 ic seru ice use ded icated for
compatible uses, and shall include other easements
or rights-of way as shall within their proper use
and meaning entitle the City and Grantee to the use
thereof for the purposes of i nsta 11 i ng or
transmitting Grantee's Communication Seruices ouer
poles, wires, cables, conductors, ducts, conduits,
uaults, manholes, amplifiers, appliances,
attachments, and other property as may be
ordinarily necessary and pertinent to the
Communication System. Public Way shall not include
any portion below any public street, highway,
freeway, bridge, land path, alley, court,
bou leuard, s idewa lk, parkway, lane, pub 1 ic way,
driue, circle, or other public right-of-way.
j . "Ser u ice Area" mea ns the present mu n i c i pa 1
boundaries of the City, and shall include any
additions thereto by annexation or other legal
means.
k. "Subscriber" or "Customer" means a person or user of
the COMmuni cat i on System with a bill i ng address
within the corporate limits of the City, who
lawfully receiues Communication Seruices or other
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serUIce
therefrom
with
Grantee's
express
permission.
SECTION 2
GRAN L OF LLCENSE
2.1 GBe~I. The City hereby grants to Grantee a nonexclusiue
License which authorizes Grantee to construct and operate its
Communication System and offer Communication Seruices in, along,
among upon across, aboue, ouer, or in any manner connected with
Public Ways within the Seruice Area and for that purpose to erect,
i nsta 11, construct, repa i r , rep 1 ace, reconstruct, ma i nta in, or
retain in, on, ouer, upon across, or along any Public Way and all
extens ions thereof and add it ions thereto, such wires, cab les
conductors conduits amplifiers, appliances, attachments and other
related property or equipment as may be necessary or appurtenant to
the Communication System.
2.2 LLMll~JGRANT. This grant of authority to prouide the
seruices described herein shall be limited solely to those seruices
expressly described and no others. In the euent of any ambiguity,
this agreement shall be strictly construed as to the rights granted
herein.
2. 3 D_U_I),__10__['tOLLF_)'~aF_.CHBNGE. Grantee represents that the
Communication System will be utilized exclusiuely for the rendering
of Communication Seruices. If the nature or character of
Communication Seruices changes In any manner in the future to
include the offering of telecommunication or other seruices not
expressly permitted under this License or if there is an increase
in the size or number of any poletop radio transmitter/receiuer (or
like aboue-ground apparatus) than was contemplated in the adoption
of this License, as described in the application, then Grantee
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shall notify the City in writing as soon as practicable. Such
notice shall be serued at least sixty (60) days prior to the
effectiue date of any change in the nature or character of the
Communication Seruices or in the poletop radios (or like aboue-
ground apparatus).
2.4 COMeL.JBNCE_l.JIIH.,C_Ll'i_REQUIREMENJS. Except as express ly
prouided otherwise herein, Grantee shall comply with all applicable
City ordinances, resolutions, standards and procedures, as now or
hereafter adopted, to the same extent as any other person or entity
doing business within the City.
2.5 IERtt. The License granted herein shall be for a term of
fiue (5) years from the effectiue date of the License as set forth
in Section 2.6, unless otherwise lawfully terminated in accordance
with the terms and conditions of this License.
2 .6 ACCEPTANCE ;__..EFFEC1_1V.E..._.DßIE . Grantee sha 11 accept the
License granted pursuant hereto by signing this License and filing
same with the City Clerk or other appropriate official or agency of
the City with in th irty (30) days after the passage and f i na I
adoption of this License. Subject to the acceptance by Grantee,
the effectiue date of this License shall be the thirtieth (30th)
day after its passage. If not accepted within thirty (30) days,
this agreement shall be null and uoid and of no effect and no
license shall exist between METRICON and the City.
SECI10tL.,3
REGULftIJ ON_OE_T1:tE__US,E_..DI_ PlJBL~c..._WA YS
3.1 CONDIIIQNS_OL_STREEJn_OCçUpaNC~. All transmission and
distribution structures, poles, other lines, and equipment
installed or erected by Grantee pursuant to the terms hereof shall
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be located so as to cause a miniMum of interference with the proper
use of Public Ways and with the rights and reasonable conuenience
of property owners who own property that adjoins any of said Public
Ways
3.1. 1 APPRŒJ.aLnOLPLANS,_8f'jD_SPEC~[lCflJIONS. Grantee
shall prouide complete plans and specifications for all
construction within streets to the designated City official
for their reuiew at least thirty (30) days prior to the start
of any construction during the term of this License. In the
euent of rejection, Grantee shall submit reuised plans and
specifications for approual. This prouision shall apply to
each construction sequence if the construction is accomplished
in phases, A 11 such construct ion sha 11 comp 1 y with all
appl icable ordinanceCsL including ordinances which may be
adopted after the date of this License, all applicable
ordinances shall include, but are not limited to, building and
fire codes and zoning regulations. Such construction and this
License shall be expressly subject to all deeds, easements,
dedications, conditions, couenants, restrictions and
encumbrances which may affect the Public Ways.
3.1.2 ~APS. Grantee shall prouide the City with a map
Cof general specificity) showing the approximate location of
major components of Grantee's Communication System within the
City which is attached hereto or will be attached hereto as
Exhibit A.. Upon written request of the City, Grantee shall
update such map to reflect actual or anticipated improuements
to the system. Any such map Cor update thereof) so submitted
shall be for informational purposes only and shall not
obligate Grantee to undertake any specific improuements, nor
shall such map be construed as a proposal to undertake any
specif ic improuements. Grantee shall submit such map (and
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updates thereof) to the CIty in "GIS" format, unless such map
(or updates thereof) cannot be prepared In a commercially
reasonable manner in such format.
3.2 RESJORAJION_OfPUBLJCuWA'iS. If during the course of
Gra ntee' s construct ion, opera t ion, or ma i ntena nce of the
Communication System there occurs a disturbance of any Public Way
by Grantee, it sha 11, at its expense, rep lace and restore such
Public Way to a condition reasonably comparable to the condition of
the Public Way existing immediately prior to such disturbance.
3.3 BELOCATI01t_AL_BEQUE_SL_OE___CJ._l'i. Upon its rece ipt of
reasonable aduance notice, not to be less than thirty (38) business
days, Grantee shall, at its own expense, protect, support,
temporarily disconnect, relocate in the Public Way, or remoue from
the Public Way, any property of Grantee when required by City by
reason of traffic conditions, public safety, street abandonment,
freeway and street construction, change or establishment of street
grade, installation of sewers, drains, gas or water pipes, or any
other type of structures or improuements by the City; but, Grantee
shall in all cases haue the right of abandonment of its property.
3.4 BELOCR_LION AT REQUEST OF THIRD PARTY. Grantee shall, on
the request of any person holding a building mouing permit issued
by the City, temporarily raise or lower its wires to permit the
mouing of such building, prouided; (a) the expense of such
temporary ra is i ng or lower i ng of w ires is pa id by sa id person,
including, if required by Grantee, making such payment in aduance;
and (b) Grantee is giuen not less than fourteen (14) business days
aduance written notice to arrange for such temporary wire changes.
3,5 VEJiE_TflllDtLt1ANf1GEtlENI. Grantee and the City agree in
principle to a line clearance standard that balances the aesthetic
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needs of the communit'::) while enhancing serulce reliabilit'::)
Grantee's commitment is to respond promptl'::) to the City identified
tree-related hazards.
Grantee shall reasonabl'::) compensate the propert'::) owner for an'::)
damages caused b'::) such trimming, or shall, in its sole discretion
and at its own cost and expense, reasonabl'::) replace all trees or
shrubs damaged as a resu I t of an'::) construct ion of the System
undertaken by Grantee. Such replacement shall satisfy any and all
obligations Grantee may haue to the property owner pursuant to the
terms of this Section 3.
3.6 SAfEI.'L....BEQUlRE.t1ENIS. Construction, installation, and
maintenance of the Communication System shall be performed in an
orderly and workmanlike manner. All such work shall be performed
in substantial accordance with applicable FCC or other federal,
state, and local regulations. The Communication System shall not
unreasonably endanger or interfere with the safety of persons or
property in the Seruice Area.
3.7 aBŒJLGROUND..J:;ONSTRUCTIOtL Un less agreed to in wr it i ng by
both City and Grantee, or approued by the appropriate body of the
City, no communication system shall be erected or operated on any
aboue ground poles, facilities or structure except these now or
hereinafter owned or leased by one of the City's franchised public
utilities, or as prouided in section 3.8 (b) below.
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3 8 USE, RENTAL OR LEASE Of UTILITY POLES AND fACILITIES
a. There is hereby granted to Grantee the authority to
contract with the City or any appropriate board or agency
thereof or with the holder or owner of any utility license in
the City for the use, rental or lease of its or their poles
and other structures and facilities for the purpose of
supporting or carrying Grantee's Radios wires, cables,
electronic conductors and other facilities and appurtenances
necessary or desirable in conjunction with the operation of
its COl'Tll'Tlun icat ion System. The City agrees that any pub 1 ic
utility owning or controlling such poles or structures may,
without amendment to its license, allow, and is encouraged to
allow, Grantee to make such use thereof pursuant to any
agreement reached between such utility company and Grantee.
b. Grantee may request space in the City-owned poles
and structures as may be auailable; howeuer, such permission
is within the sole discretion of the City and must be granted
In writing.
SECTION 4
COMPEN~:Lallilt'LlO~C.lT~
4 . 1 fBJlttEttL. TO_CIT Y .
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4,1.1
Administratiue Fee An adminlstratiue fee is
assessed Grantee as consideration for the administratiue
process i ng cost incurred in the in it i a 1 adopt i on of th is
License, and for the continued Monitoring and enforcement of
same. Grantee agrees to pay the City an administratiue fee of
Two Thousand Dollars ($2,000) upon acceptance of the Ordinance
(with a credit of $850.00 from the application fee). Nothing
here in sha 11 prec 1 ude the City from reco uer i ng any
administratiue costs incurred by the City in the approual of
permits or in the superuision, inspection or examination of
a 11 work by Grantee in the Seru ice Area as prescr i bed In
accordance with applicable ordinances or laws.
4 . 1 .2 ELtBL IC lIftY__U_SE_fEEL_LICENS_E_u_FEE__.ßND__LalE
eA. YMEJlI. CHARGE,
a . The City finds that the pub 1 i c streets, alleys
and rights-of-way to be used by Grantee in the operation
of its Communication System within the boundaries of the
City are ualuable public properties, acquired and
maintained by the City at great expense to its taxpayers,
and that the grant to Grantee of the use of said public
streets, alleys and rights-of-way is a ualuable Property
right, without which Grantee would be required to inuest
substantial capital In right-of-way costs and
acqu is it ions, therefore J Grantee agrees to pay to the
City as general compensation for the use of the Public
Way during each year of this License ordinance, an amount
equal to fiue percent (5/.) of Gross Reuenues or $125.00
as an on-going administratiue fee, whicheuer is greater,
as defined in Section 1.1 herein, for each quarter of
each calendar year.
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b, Grantee shall pay an amount equal to thIs
quarter I y payment by the f if teenth (15th) day of the
second calendar month immediately following the close of
the calendar quarter for which the payment is calculated
Any necessary prorations shall be made in the first and
last year of the License,
c. In the euent any quarter ly payment IS made
after noon on the date due, Grantee sha 11 pay a late
payment pena I ty of the greater of: ( i) One Hundred
Dollars ($100) or (ii) simple interest at a ten percent
(10%) annual percentage rate on the total amount past
due.
d. Grantee shall obtain on all billing addresses
in the City the zip code plus four digits.
4 .2 QUBB1EBL'l_BEPOR! . I n order to proper 1 y determ i ne the
Gross Reuenues receiued by Grantee, Grantee agrees that on the same
date that each quarterly payment is made, it will file with the
Director of Finance a sworn copy of a report, in a form acceptable
to the City, in sufficient detail to itemize reuenues from each of
the reuenue categor ies. The City may, if it sees fit, haue the
books and records of Grantee examined by a representatiue of said
City to ascertain the correctness of the reports agreed to be filed
herein. Neither the acceptance of any payment nor any subsequent
reuiew shall be deemed an agreement by the City that the correct
payment was paid, absent a fully authorized release by the City on
any such payments or on such reports.
4.3 IiECALC_ULALIQN__fil. ENDOF_COMEE.I'tS8UOtL.'LEÆiR. At the end of
each calendar year, Grantee shall recalculate the total general
compensation actually due. If additional amounts are due the City
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by Grantee, said aMounts shal I be paId by the fifteenth (15th) day
of February following the calendar year during which such aMounts
were originally due, If aMounts are found to be due Grantee by the
City, said aMounts shall be credited by the fifteenth (15th) day of
February during which such aMounts were originally due. Any
necessary prorations shall be Made.
4.4 TAXES_AR.E ,NOL_uTO BE AuCREDII. The compensation paid
under this License shall be exclusiue of and in addition to all
special assessments and taxes of whateuer nature, including, but
not limited to, ad ualorem tax, sales tax, corporate or business
occupation taxes or other taxes or fees imposed or leuied by any
gouernmental entity.
4.5
shall not
rights of
RJ..GHlS,_..o..f__.kll'i. Payment of money under th is License
in any way 1 imit or inhibit any of the priui leges or
the City, whether under this License or otherwise.
4.6 fLNNUAL_BE£>..ORl. Grantee sha 11 file annua 11 y with the
Director of Finance no later than ninety (90) days after the end of
Grantee's fiscal year, a certified statement of reuenues (for that
year) attributable to the operations of Grantee's system, within
the City pursuant to this License ordinance. This statement shall
present a detailed breakdown of Gross Reuenues and uncollectible
accounts for the year.
4. 7 CIBCUt1!.ŒN~LttG--.fAYMENlS. Any transact ion (s) wh ich haue
the effect of circumuenting payment of the required license fees
and/or euasion of payment of license fees or any payments due the
City under this License by non-collection or non-reporting of Gross
Reuenues, barter i ng, or any other means wh ich euade the actua 1
collection of reuenues for business pursued by Grantee are
prohibited.
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4 8 TRANSFER OF LICENSE Grantee's right, title, or Interest
In the LIcense shall not be sold, transferred, assigned, or
+'¡f',"';l':~C C'KuMbered. ':ithcr th'1'1 tOFI Aff1l1iÜe, without the prior
consent of the City, such consent not to be unreasonably withheld.
No such consent shall be required, howeuer, for a transfer In
trust, by mortgage, by other hypothecation, or by assignment of any
rights, title, or interest of Grantee In the License or
Communication System in order to secure indebtedness.
4.'3 Municipal Access Program. In consideration of City s
execution and deliuery of this Use Agreement, City shall haue the
right throughout the term of this Use Agreement to purchase, when
such seruice is commercially auailable I the City, up to the
maximum number set forth below (based upon the City s population)
of Ricochet basic seruice subscriptions at the rate of fifty
percent (SOl.) 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
auailable 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 24'3,000, up to a maximum of thirty (30) discount
subscriptions; (c) for municipalities with a population of 250,000
to 500,000, up to a maximum of forty (40) discount subscriptions;
and (d) for municipalities with a population of ouer 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 seruice
subscriptions or seruice 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
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f'rjtc,·':.~ curf'cnt fr'CH'ì t IMC to tiMe or under other proMot land 1 progrc1Mc,
which Ma'::) be auailable froM time to tiMe in addition to the
Municipal Acces,::, Program ¡'ate Cit'::) shall use all subscriptIOns
prouJded purc:,udnt to th]s '1 3 solel~ for Its CW~I u,:";cjnd shall net
be entitled to resell, distribute, or otherwise permit the use of
the same b'::) an'::) other Person.
SECT ION 5
ACCOUNTSJ BOOKS AND RECORDS
5.1 C tTYTO., BE INFORMED. Grantee shall keep the City full'::)
informed as to all matters in connection with or affecting the
construction, reconstruction, remoual, maintenance, operation and
repair of Grantee's system, Grantee's accounting methods and
procedures in connection therewith, and the recording and reporting
by Grantee of all reuenues and uncollectible. Grantee shall report
to the City such other information relating to Grantee as the City
may consider useful and shall comply with the City's determination
of forms for reports) the time for reports, the frequency with
which any reports are to be made, and if reports are to be made
under oath.
5.2 RCCOUNIS. Grantee shall keep complete and accurate books
of account and records of its business and operations pursuant to
this License ordinance In accordance with generally accepted
accounting principles) subject to reuiew and approual by the City.
The City may require the keeping of additional records or accounts
which are reasonably necessary for purposes of identifying,
accounting for, and reporting gross reuenues and uncollectibles for
purposes of Sect ion 4 hereof. Grantee sha 11 keep its books of
account and records in such a way that breakdowns of reuenues are
auailable by type of seruice within the City.
1 r
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5 3 ACCESS TO RECORDS Grdntee shal I prouide the CIty wltn
access at reasonable times and for reasonable purposes, to examine,
audit, reUlew and/or obtaIn copIes of the papers, books, accounts,
duc Mcnte:;, Mr:1P:::', pldn:::; ind U1C;' records of Grantee pertdlnlng to
this License ordinance. Grantee shall fully cooperate in Making
auailable its records In Tarrant County, and otherwise assisting in
these actiuities
5.4 INQUIRIESJO GRANTEE. The City may, at any time, make
inquIries pertaining to Grantee's operation of its System within
City. Grantee shall respond to such inquiries on a timely basis,
SECT ION 6
INSURANCEJJ NDEt1Nlf tCATIONJ RND~ BONDS_DJLDIHERSURE l~
6.1 INSUBBNCE REQUIJŒttENTS. Grantee sha 11 ma i nta in In fu 11
force and effect, at its own cost and expense, during the term of
the License, Comprehens i ue Genera 1 L i a b i 1 i ty I nsura nce in the
amount of One Million Dollars ($1,000,000) combined single limit
for bodily injury, and property damage. Said insurance shall
designate the City as an additional insured. Such insurance shall
be noncancellable except upon thirty (30) days' prior written notice
to the City.
6.2 INDEttNIFJCJlTIOt1. Grantee agrees to indemnify, saue and
hold harmless, and defend the City, its officers, boards and
employees from and against any liability for damages and for any
liability or claims resulting from property damage or bodily injury
(including accidental death), which arise out of Grantee's
construction, operation, or maintenance of its Communication
System, including, but not limited to, reasonable attorney's fees
dnd costs Grantee further agrees not to oppose interuention by
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the C 1 tlj 1 rl c;uc h (1 c,U 1 t J hr.JweUCT, d nlj 1 ntcruent Ion will be dt the
Citlj'~ sole cost and expense
:WND~) fiN:: CnHER SURETI' L.:ccpt dS e<prc(:;("~ llj prou ¡ded
herein, Grdntee shall not be required to obtain or Maintain bonds
or other suretld as a cond it i on of be i ng awarded the License or
cont i nu i ng its ex i stence I n order to m in i m i ze such costs J the
Citld agrees to require bonds and other suretld on lid in such amounts
and during such times as there is a reasonablld demonstrated need
therefor, The C i tld agrees that in no euent J howeuer J sha 11 it
requ ire a bond or other re lated suretld in an aggregate amount
greater than Two Hundred Thousand Dollars ($200,000), conditioned
upon the substantial performance of the material terms, couenants,
and conditions of the License. Initiallld' no bond or other suretld
will be required. In the euent that one is required in the future,
the Citld agrees to giue Grantee at least thirty (30) days prior
written notice thereof stating the reason for the requirement.
Such reason must demonstrate a change In Grantee's legal,
financiaL or technical qualifications, which would materially
prohibit or impair its abi 1 ity to comply with the terms of the
License or afford compliance therewith.
SECTION 7
EJ'tfOBC_EMENIBND, IERtU NA T tori Q'L.Ll.C_ENSE
7.1 NOTICE_OF JJlOLATlON. In the euent that the City be 1 ieues
that Grantee has not cOMplied with the terms of the License, it
shall notify Grantee in writing of the exact nature of the alleged
noncomp 1 iance ,
7,2 GRANTEE'S RIGHI TOCURE OR RESPOND . Grantee shall haue
thirtld (30) dalds from receipt of the notice described in 7,1:
(1) to respond to the C i tld contest i ng the assert ion of
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flonconplldÍlCe, (2) to cure such ckfoult, ur en HI the eucnt thot,
b~ the nature of default, such default Cdnnot be cured within the
thirt~ (30) da~ period, initiate rCdsondble steps to rer:1ed~ such
de r d u ì t 1 d n Ll t ì f ~j the C I t ~~ C) f .. hi' :. t e pc:; bel 'I 9 + ',1 k e Í! d n d t, h f.'
projected date that the~ will be conpleted
7.3 PUBLIC HEARING. In the euent that Grantee fails to
respond to the not ice descr i bed inSect ion 7.1 pursuant to the
procedures set forth in Section 7.2, or in the euent that the
alleged default is not remedied within thirt~-one (31) da~s after
Grantee is notified of the alleged default pursuant to Section 7.1,
the City shall schedule a public meeting to inuestigate the
default. Such public meeting shall be held at the next regularl~
scheduled meeting of the Cit~ which is scheduled at a time which is
no less than f i ue (5) bus i ness da~s therefrom. The C i t~ sha 11
notif~ Grantee of the time and place of such meeting and prouide
Grantee with an opportunit~ to be heard.
7 . '1 ENFQRC~E_t1EltI.
law, In the euent the
Grantee is in default
ma~:
Subject to applicable federal and state
Cit~, after such meeting, determines that
of any prouision of the License, the Cit~
a. Foreclose on all or any part of any securit~
prouided under this License, if an~, including without
limitation, an~ bonds or other suret~; prouided, howeuer, the
foreclosure shall only be in such a manner and in such amount
as the Cit~ reasonabl~ determines is necessary to remed~ the
default;
b. Commence an action at law for monetar~ damages or
seek other equitable relief;
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C 1'1 the Cd'C,C of r1 MdttTldl brcdch of the LIcen'3e,
declare the License AgreeMent to be reuoked; or
'j"'>" '::;pcclfIC ;"i'!::I!':'lc!f1CC i)f ~í'~~ Pjl")JlC:,lCiI, WhICh
reasonably leads ltself to such remedy, öS an alternatlue to
damages.
Grantee sha 11 not be re I ieued of any of its ob 1 igat ions to
comply promptly with any prouision of the License by reason of any
failure of the License Authority to enforce prompt compliance.
7.5 ACTS OF GOD.
Grantee shall not be held in default or
noncoMpliance with the prouisions of the License. nor suffer any
enforcement or penalty relating thereto. where such noncompliance
or alleged def au I ts are caused by str i kes. acts of God. power
outages. or other euents reasonably beyond its ability to control.
SECT ION 8
t11SCELLBJjEOUSPROlJ I S IUNS
8,1 ACILQt1S __M___CIl't. In any act ion by the City or
representatiue thereof mandated or permitted under the terms
hereof. such party shall act in a reasonable. expeditious. and
time ly manner. Furthermore. in any instance where approua I or
consent is requ i red under the terms hereof, such approua I or
consent shall not be unreasonably withheld.
8.2 NOTICE.. Unless expressly otherwise agreed between the
parties, euery notice or response to be serued upon the City or
Grantee shall be in writing, and shall be deemed to haue been duly
giuen to the required party fiue (5) business days after hauing
been posted in a properly sealed and correctly addressed enuelope
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tHJ It:r't1£ ICO tì[' iCgl';;trTcd Mall, pOSt(1gC prepöld, dt <:1 Poc,t U[fICC
or branch thereof regularly maintained by the U S Postal Serulce
Th( t 1 ('-:1 CJ~~ ~-'C<;pCJíì(:-.;e t.Ci the' C 1 t~~ sh'.111 be =,jdr"'c'l~"") c>j 1<'1
[011 ows :
Mr. Larry J. Cunningham
City Manager
City of North Richland Hills
7301 NE Loop 820
North Richland Hills, Texas 76180
The not ices or responses to Grantee sha 11 be addressed as
f 0 1 lows:
METRICOM, INC.
Attn: Network Real Estate Department
g80 Uniuersity Auenue
Los Gatos, CA gS032
License Authority and Grantee may designate such other address or
addresses from time to time by giuing notice to the other.
8.3 DESCRIPIH.JE_tŒflDlttGS. The capt ions to sect ions conta i ned
herein are intended solely to facilitate the reading thereof. Such
captions shall not affect the meaning or interpretation of the text
herein.
8.4 SElJERBBIL 11ll. If any sect ion, sentence, paragraph, term,
or prouision hereof IS determined to be illegaL inualid, or
unconstitutional, by any court of competent jurisdiction or by any
state or federal regulatory authority hauing jurisdiction thereof)
such determination shall haue no effect on the ualidity of any
other section) sentence, paragraph, term or prouision hereof, all
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of whIch will ren(1Ir¡ In full furc:c cHid effect for the terM U,,'
License, or an~ renewal or renewals thereof.
8~) ACT I [) N B ~J T H [ FCC t h (' f: ve '1 t fed e r ö ¡ C) r t::1 + C 1'1 W
the FCC promulgates More stringent notice requirements, technicöl
standards, consumer protection or consumer seruices requirements
than are contained In this agreement, those more stringent
requirements shall preuail. The Cit~ shall giue reasonable notice
when in their determination that has occurred. Grantee shall
retain and not waiue any or all rights and priuileges as afforded
either under th is contract or pursuant to Federa I Law or FCC
regulations to complain and/or appeal such a determination.
8.6 lELECQl1t1UrtICBJlONSPBOIJIDERSERIJJCES. Notw i thstand i ng
any other prouision in this License, in the euent a state or
federal agency or a court of competent jurisdiction determines that
Metricom is a telecommunications prouider under either federal or
state law, which requires the City to treat them as other
telecommunications prouiders In direct competition on a
competitiuely-neutral basis, the City shall, upon sixty (60) days'
notice, amend this agreement to incorporate the same terms that
haue been offered to other similarly situated telecommunications
prouiders in the City limits of the City.
Approued on this 2~th day of March, 1~~~, subject to applicable
federal, state and local law.
CITY OF NORTH RICHLAND HILLS, TEXAS
~t r;;~~
Larry V) Cunn i ngfu9-sY' City Manager
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(nTEST
/
IZ: I / ( \ FI1~:yr>,
_. __._._________,.__.._._.___._._.._~ ,.. __, . ··.·,_·________~.._______~____H._..__. ____.___.__.m '__ ..__.
Patricia Hutson) CITY SECRETARY
y
Accepted and agreed to th is day of _______
1999, subject to applicable federal, state and local law.
METRICOMJ INC.
By:
Name:
Title:
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