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Council File # Op - G��..
Green Sheet # l'03 5 .'1R'
RESOLUTION
Presented By
Referred To
Committee: Date
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WHEREAS, the City of Saint Paul desires to provide its citizens, businesses, employees and visitors a new choice
of high-speed wireless Intemet access capability that does not require the use of a telephone line and which does
not require the use of cables or trenches in the City's rights-of-way; and
WI�REAS, Metricom, Inc., has already rolled out a high-speed wireless Intemet system in the San Francisco,
Seattle and Washington DC metropolitan azeas, and is currently rolling out this same system in the Twin Cities,
which system uses shoebox-sized radio transceivers that aze installed on City streetlights and utility poles; and
WHEREAS, although Metricom is authorized under Minnesota law to use local rights-of-way without having to
enter into a formal agreement with the ]ocal municipality, Metricom has nevertheless eleeted to voluntarily enter
into such agreements with local municipaliries in order to expedite the roll-out of its system; and
WHEREAS, Metricom has previously entered into agreements with forty-seven other local govemment units in the
Twin Ciries area, and has requested that Saint Paul likewise enter into such an agreement; and
WHEREAS, City staff has reviewed and negoriated the terms of an agreement that requires, among other things,
for Metricom to pay the City for all installation and registration perrnit fees, to make an annual payment to the City
of one percent (1%) of gross revenues for subscribers within the city, to pay the City $60.00 annually for each City-
owned pole on which a radio is attached, and to provide the City with 20 free subscriprions to the Intemet service;
now therefora,
BE TT TtESOLVED, that the proper City officials aze hereby authorized to execute and enter into an agreement
w'sth Metricom, as set forth and contained in "Right-of-Way and Facility Agreement," a copy of which agreement
was before the City Council and which is made a part hereof by reference. o�n��.�.�.��o.�N.w
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OF SAINT PAUL, MINNESOTA
Form Approved by City At orney
gy: � � • �p. a.f. 66
Rpproved by Mayor for Submission to
Counci�
By: � ��
Adopted by CounciZ: Date �o
Adoption Certified by Councs Secretary
DepaAmenuotfice/wuncii: Date Initiated Green Sheet Na. 103528
Technology & PvTanagemc,mt Services June 21, 2000 ��`
GoMact Person & Phone i aY e ���p�
Peter Hames, 266-8196 � l�, � p �� c;xycow�i
Must Be on Cou� AgdMa by (6ate) Assi9n 2 City Attomty ' • P. ._GO �City Clerk
N�y� Fioa�xial Sav Aic Finamiai SavfaaYA
June 2 8, 2 0 0 0 For �iM�wr (g' �) �- 2� -►. _ civil sav�ce conmission
Routing
Order
Total # of Signature
Atl Locations tor Signature)
Acfion Requested:
Authorization to execute and enter into an agreement with Metricom, Inc. as set forth in the "Right-of-Way and Facility
���H
RecommerWaGons: Approve (A) or Reject (R)
Planning Commission
C18 Committee
Civii Servite Commission
Personat Service Contracts Must Answer the Pollowing Quesfions:
t. Has this persoN(rtn ever worked under a contrad for this tlepa�tmeM7
Yes No
2. Has this person/firm ever been a city empbyee?
Yes No
3. Dces tfds personlfum passess a skill �ot nartna0.Y Passessed bY any curreM cily
employee? Yes No
Explain all yes answers on separate sheet and attach W green sheet
U�Uiak�g Pra6lem, lssue, OPportunity (Whu. What, When. Wf�ere, Why�:
Metricom provides a high-speed wireless Tntemet access capahility, through the use of wireless laptop modems, that does not
require the use of a telephone line and does not require the use of cables or trenches in the City's rights-of-way.
Advantages If Approved;
Saint Paul citizens, businesses, emp]oyees and visitors wiA have a way to use a wireless connection to the Internet. The City
will annually receive $60 for each City-owned gole on which a Metricom rndio transmitter is atiached: - In'addition, the City
will receive 20 free subscriptions to Metricom's service. �— "y `-
,.
, ...»
`� �
Disadvantages If Approved:
None.
�
Disadvantages if Not Approved:
Because Metricom is signing up all cities in the metropolitan area, if not approved, Saint Paul citizens, businesses, employees
and visitors will be isolated from a service which will exist elsewhere in the metropolitan azea.
�otal Amount ot Transaction: S
'unding Source:
CosURevenue eudgeted:
AMivify Numbec:
i�wnciat Infortnation: (Ezplai�)
bo -(e \�-
SAINT PAUL
Right-of-Way and Facility Agreement
m HLS RIGHT-OF-WAY AND FACILITY AGIZEEMENT (this "Agreemen�') is '
' 1' dated as of . 2000 (the "Effective Date'), and entered into ''
- by and between the CIT'Y OF SAINT PAUL, a Minnesota local government unit
(the "City"}, and METRICOM, INC., a Delaware corporation ("Metricom").
Recitals
A. Metricom owns, maintains, and operates, in accordance with regulations
promulgated by the Federal Communications Commission, a mobffe digital data
communicaiions radio network known as Ricochet�, utilizing Radios {as defined in
§ 1.10 below} and related equipment certified by the Federai Communications
Commission.
B. For purpose of operating Ricochet�, Mefricom wishes to locate, place, '.
attach, install, operate, and maintain Radios an the Public Right of Way (as defined in
§ 1.9 below) on Municipal Facilities, as well as on facilities owned by third parties i
therein.
C. Mefricom acknowledges that, notwithstanding any provision within this
Agreement to the contrary, it shall comply with any and all existing or future laws,
including but not limited to those regulating the City's public right of wap found in
Chapters 116 and 135 of flie City of St. Paul Legislative Code, before exercising atty
right under this Agreement Nothing herein shall constitute a pernussion or
authorization or waiver from the City of its night to reqwire such prior compliance by ;
Metricom. ;
Agreement
NOw, �hG�efOrA, for good and valnable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties a�ee to the follow3ng
covenants, terms, and condiiions, and that the above-referenced Recitals are hereby
incorporated:
Rightrof-Wayand FacilityAgreement
Ci[y of,S�intPauL: Metrimm, Inc.
Page 1 of 20
00 -C�3-
1 DEFINTTIONS. The following definitions shali apply generally to the provisions of this
Agreemen�
1.1 Adjusted Gross Revenues. "Adjusted Gross Revenues' means the gross
dollar amount received by Mefricom for its Services (as deiined in § 1.11
below) provided to subscribers with billing addresses in the City,
excludutg (i) any utility users tax, communications tax, or similar tax or
fee; (ii) local, state, or federal t�axes that have been billed to the subscribers
and separately stated on subscribers bills; and (iii) revenue uncollectible
from subscribers (i.e., bad debtsj with billing addresses in the City that
was previously included in Adjusted Gross Revenues.
1.2 C'ity. "City" means the City of SainE Paul.
1.3 Fee. ° Fee ` means any assessment, license, charge, fee, imposition, tax, or
levy of general appfication to entities doing business in the Ciiy lawfully
imposed by any governmental body (but excluding any utility users tax,
franchise fees, communications tax, or similar tax or fee).
1.4 Installation Date. "Installa6on Aate" shall mean the date that the first �
Radio is installed by Metricom pursuant to this Agreemenk
1.5 Laws. "Laws° means any and all statutes, constitutions, ordinances,
resolutions, regulaHons, judicial decisions, rules, tariffs, administrative
orders, certificates, orders, ar other requirements of the City or other
governmental agency having joint or several jurisdiction over the pariies
to this Agreement.
L6 Metricom. "Metricom' means Metricorn, Inc., a corporation duly
organized and exisiing under the laws of the State of Delaware, and its �,
lawful successors, assigns, and h�ansferees. �
1.7 MPUC: " MPLTC" means the Minnesota Public Utility Commission.
1.& MunicipalFacilrties. ° Municipal Pacilities" means City-owned street light
poles, lighting fixtures or electroliers, that are located within the Public
Ttight of Way and may refer to such facilities in the singular or plurai, as
appropriate to the context in which used. Municipal Facilihies does not
include any traffic signals, semaphores, or poles on which traffic signals or
semaphores are attached.
Right-of-Wayand FacilifyAgrcrment
Gty ofSaintPaul: • Mefrimm, Inc.
Page 2 of 20
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1.9 Public Right of TNay. "Public Right of Wa�` means the space in, upon,
above, along, across, and over the public streets, roads, highways, lanes,
cartways, courts, ways, alleys, boulevards, sidewalks, bicycle lanes, and
places, including all public utility easements and public service easements
as the same now or may hereafter exist, that aze under the }urisdiction of
the City. This term shall not include county, state, or federal rights of way
or any property owned by any person or entity other than the City, except
as provided by applicable Laws or pursuant to an agreement between the
City and any such person or entity. If the City adjusts its boundaries
pursuant to Minn Stat, Chap. 414 through annexation, incorporation,
combination, detachment, or other means, this Agreement shall be
binding on the ent'rre area within the City's boundaries after the
adjustment
11Q Radio. "Radio' means the radio equipment, whether referred to singly or
collectively, and related appurtenances to be installed and operated by
Metricom hereunder, only as illustrated in the drawings (or with similar
damensions) attached to this Agreement as Attachment A, which is hereby
incorporated.
1.10.1 Rico�het. "RicocheP' means a mobile digital data communications radio
network utilizing Radios (as defined in § 1.10 above) and related equipment,
which operates in one or more of the following spectra of radio frequencies: 902-
928 MHz, 2305-2350 MHz or 5725-5850 MHz, as permitted by the Federal
Communications Commission.
1.11 Services. °Services' means the mobile di,gital communications services
provided through Ricocheifl by Metriwm, which services consist
principally of wireless Internet, e-mail and local area network access and
may include transmission of sound and video images; provided, however,
that "Services" shall not be construed, interpreted or applied to authorize
either real fime telecommnnications services (i�cluding telephone and
voice) or video or cable television communications services except as may
be considered standard Internet content
2 TERM. This Agreement shall be effective as of the Effective Date and shall extend far
a term of nine (9) years commencing on the Installafion Date, unless it is eazlier
terminated by either party in accordance with the provisions herein. The term of this
Righf-of-Wayand Faolity A�rement
Gty ofSaintPaul:: Metrico� Inc.
Page 3 of 20
D es •- � �Y
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 ofiher of its intenfion naE to renew not less than one hundreci eighiy (180)
calendar days priar to commencement of the retevant renewal term
3 SCOPE OF AGREEMENT. Any and all rights expressly granted to Metricom under this
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 Public Right of Way exclusively or concurrenfly with any other
person or entifiy and shall be further subject to all deeds, easements, dedications,
conditions, covenants, restrictions, encumbrances, and claims of tifle of record which
may affect the Public Right of Way. Nothing in this Agreement shall be 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 ta the rights
granted under this Agreement shall be subject to the reasonable prior review and
approvat of the Cily.
3.1 Attachment to Municipal Facilities. The City hereby aixthorizes and
permits Metricom to enter upon the Pubtic 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@ and providing Services. In addition, subject to the
provisions of § 4.3 below, Metricom shall have the right to draw electricity
for the operaiaon af the Radios from the power source associated with
each such attachment to Municipal Facilihes. Metricom acknowledges,
however, that most of City's Municipal Facilities use "banked" photo-
electric cells for the supply of electricity and therefore will not be suitable
for the drawing of electricity or the attachment of Radios.
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 Public Right of Way and to attach,
instali, operate, maintain, remove, reattach, reinstall, relocate, and replace
such number of Radios in or on poles or other structures owned by public
utility companies ar other property owners located within the Public
Right of Way as may be permitted by the public utiUty company or
property owner, as the case may be, solely for the puzposes of operating
RicochetC�3 and providing Services. Upon request, Metricom shall furnish
to the City documentaiion of such permission from the individual utility
Rightof-Wayand FacilityAgteement
Crty ofS3intAaul.°Metricom, Inc:
Page 4 of 20
00 —4\i-
or property owner responsible. City agrees to cooperate with Metricom,
at no cost or expense to City, in obtaining where necessary the consenis of ,
third-party owners of properiy located in the Public Right of W ay. ,
3.3 No Interference. Metricom in the performance and exercise of its rights �
and obligations under this Agreement shall not interfere in any manner I
with the existence and operation of any and all public and private rights'
of way, sanitary sewers, water in.ains, storm drains, gas mauvs, poles,
aeriai and underground electrical and telephone wires, electroliers, cable
television, and other information or communications, utility, or municipal
property or Municipal Facilities without the express prior written
approval of the City or owner or owners of the affected property or
properties, except as pernutted by applicable Laws or this Agreement.
City agrees to use reasonable efforts to require the inclusion of the same ar
a sunilar prohibition on interference as that stated above in all agreements
and franchises City may enter into after the Effective Date with other
information or communications providers and carriers.
3.3.1 Interference Resolution. Any actual or anticipated radio ''�
interference caused by either the presence of the Radios or the presence of l
any such other communications equipment or devices in the Public Right I
of Way shall be resoived by Metricom and any such other providers ''
without cost to City on the basis of the applicable rules, regulations,
praciices, and procedures of the FCC. City agrees to assist Metricom in the
resolution of any such interference dispute at Metricom s sole expense.
3.4 Compliance with Laws. Metricom shall comply with all applicable Laws
in the exercise and performance of its rights and obligations under this
Agreemenk The Right-of-Way Management Reimbursement provided for
in § 4.1 below shall be in lieu of all other City fees, with the exception of
any City permits such as registration and obstrucfion permit fee required
for the initial installation of the Radios or future radios. City shall ',
prornpfly respond to 2vletricom s fllings and shall otherwise cooperate
with Mehicom in facilitating the deployment of Ricochet� in the Pubiic
Right of W ay in a reasonable and timely manner.
3.5 Location and Installation. The locations of Metricom's Radios shall be
determined, subject to the reasonable prior review and approval of the
City, promptly afEer Metricom s review of available street light maps and
Right-of-Wayaotf FacilityAgreement
Gty ofSainl Paul :• MeMcom, Inc.
Page 5 of 20
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prior to deployment of the Radios. Upon the completion of any cunent ar
future installation, Mefricom promptly shall furnish to the City an as-built
list showing the exact location of the Radios in the Public Right of Way.
4 CoMPE1JSaTiotv; FEES; UTtLtTY cxnRCES. Metricom shatl be solely responsibie for the ,
payment of all lawful Fees in connection with Metricom s per£ormance under this
AgreemenE, in accordance with the terms set forth below.
4.1 Right-of-Way Management Reimbursement. In order to reimburse City for
any right-of-way management costs it may incur, Metricom shall pay to
the City, on an annual basis, an amount equal to one percent (1%) of
Adjusted Gross Revenues (the "Right of-Way Management
Reimbursemen�'), which amount may be collected from subscribers of the
Services (excluding any City subscriptions authori2.ed under Section 4.5 of
this Agreement) with billing addresses in the City and remitted to City as
provided herein. The paxiies agree that such Right-of-Way Management
Reimbursement represents a fair estimate of the costs of continuing
management of the Public Right of Way and as a substitute for User Fees j
required by Chapter 116 and 135 of City of SaintPaul Legislative Code
utilized by Metricom and that such Right-of-Way Management
Reimbursement is not a franchise fee or payment for use of the Public Right
of Way. The Right of-Way Management Reimbursement shail be payable
for the period commencing upon the date that Services are first offered and
ending on filie date of termination of this Agreement, and shall be due on or
before the 45� day after the end of each calendar year or fraction thereof.
Within forty-five {45) days after the texminafion of this Agreement,
compensation shail be paid for the period elapsing since the end of the last
calendar year for which compensation has been paid. Metricom shall also
file a report (the "Compensation Report") with the City, by sending copies
to the individuals listed in § 8. The Compensation Report shall show the
Right-of-Way Management Reimbursement paid to the City, as well as all
Metricom revenues for the preceding year based upon Metricom s
services or operations within the Ciiy that made up Ad}usted Gross
Revenues. The Compensation Report shall also show any adjusiments as
provided for in this Agreement for bad debt [as defined in § 1.1{iii)}. In
the event there is a significant fluctuation in the annual amount af
compensation being remiited to the City, Metricom will, at the City's
request, meet and discuss with the City the cause or causes of such
fluctuations. Meiricom and the City mutually agree to provide reasonable
Righbof-Wayand FaciGtyAgreement
Cify of�intPaul eMelricom, Inc
PBge b Df 2�
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documentation to assist in determining such cause or causes. The
Compensation Report shall be furnished to the City with each payment of
compensation required by this section, and shall be executed and attested to
by an authoiized officer of Metricom or his or her designee, verifying the
accuracy of the Compensation Report and amount of all fees, compensation,
or other payments under this Agreement The City agrees to hold in
confidence any non-public information in the Compensafion Report to the
fullest eatent �xrmitted by Law. If Metricom discovers any error in the
correct amount of compensation due, the City shall be paid within thirty
(30) days of discovery of the errar or detertnination of the correct amount '
Any overpayment to the City through error or otherwise shall be refiznded ',
ar offset against the next payment due. Acceptance by the City of any I
payment due under this section shall not be deemed to be a waiver by the
City of any breach of this 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. City may, at any time, at City's sole oplion, upon
ninety (90) days written noiice, require Meiricom to discontinue the Right-
of-Way Management Reimbursement compensation. Upon receiving such
notice Metricom shall, no laYer than ninety {40) days after receiving such
notice, cease making all compensation payments that would have been
payable after such ninety (90) day notice period. If City requires such a
discontinuation of Right of-Way Management Reimbursement
compensation, the City may then charge, on an annual basis, its actual
Right-of-Way Management costs (pursuant to Minnesota Statutes Sec.
237.162, Subd. 9 and Sec. 237163, Subd. 2(b)), that are incurred after the
expiration of the ninety (90} day period described above. Metricom shall
only be liable for such actual annuai Right of-Way management costs to
the extent such cosfis exceed the annual retail value of the service
subscriptions for wluch the City is eligible under Section 4.5 of this
Agreement.
4.11 Reduction of Right-of-Way Management Reimbursement by
Amount of Utility Users or Communications Tax.
Notwithstanding anything to the contrary in this Agreement, if the
Services are subject to a utility users tax, communications tax, or ',
other similar tax or fee which accrues to the City by operation of �
the Cii�s Municipal Code or other applicable law, then the amount
Rightrof-Wayand FacilityAgreement
City ofSaintPaul :� Metracom, Inc.
�8p'2 7 Of 2�
�O-4��-
of the Right of-Way Management Reimbursement shall be reduced
by the amount of the applicable utility users tax, communications
tax, or such other similar tax or fee.
Accounting Matters, Mefricom shall keep accurate books of account, in accardance
with Generally Accepted Accounting Principles (GAAP), at its principal office in Los
Gatos or such ofiher 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 boaks of account
relafive to the City at any time during regulaz business hours on thirty (30) days prior
written notice and may audit the books from time to time at the CitJ�s sole expense, but
in each case only to the extent necessary to confirm the accuracy of payments due under
§ 41 above. Alternatively, at Cit}�s option, Metricom will make available for inspection
by the City at Metricom's office Iocated closest to the City, upon thirfy (30) days prior
written notice, the relevant portions of ifs books and records as reasonably necessary to
confirm the accuracy of any payments due the City under this Agreement. The City
agrees to hold in confidence any non-public information it learns from Metricom to the
fullest extent permitted by Law. The City may request, and Mehricom will promptly
provide, to the individuals listed in Section 8, Metricom's most recent annual report
which shall contain a financial report from Metricom's independent auditors. The City
may also, at its optipn, not more than once a year, require that Metricom s compliance
with the terms and condilions of this Agreement, including, but not lixnited to, the
computation of any fees or payments, be verified by a certified public accountant or
comparably qnalified consultant at the sole expense of the Cify.
4.2 Annual Fee. As compensation for the use of Municipal Facilities,
Metricom shall pay to the City an annual fee (the "Annual Fee") in the
amount of Sixty Dollazs ($60.00) for the use of each Municipal Facility, if �
any, upon which a Radio has been installed pursuant to this Agreement.
Where light poles or other facilifies to be used by Metricom within the
Public Right of Way are owned by a utility, such annual fee shall be paid
to the appropriate utility and not to the City, The aggregate Axuival Fee
with respect to each year of the term shall be an amount equal to the
nixmber of Radios installed on Municipal Facilities during any part of the
preceding twelve (12) months multiplied by the Annual Fee, prorated as
appropriate, and shall be due and payable not later Ehan forty-five (45)
days after each anniversary of the InstaIlafiion Date. Cify represents and
Right-nf-Wayand FacitityAgreement
Gty of3aintPaul c� Metricom, Inc
Page 8 of 2D
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covenants that City owns all Municipal Facilities for the use of which it is
colleciing from Metricom the Annual Fee pursuant to this § 4.2.
4.2.1 CPI Ad}ustment. Effective commencing on the first anniversary of
the Installation Bate and continuing on each anniversary thereafter,
the Annual Fee with respect to the ensuing one-yeaz period shall be
increased by a percentage amount equal to the percentage increase,
if any, in the U.S_ Deparhnent of Labor, Bureau of Labor Statistics
Consumer Price Index (All Items, All Consumers, 1982-1984=100) ,
which occurred dvring the previous fiveyear period for the ,
Midwest Urban Region Consolidated Meiropolitan Statisfical Area.
4.3 Eleciricity Charges. Mefricom shall be solely responsible for the payment
of all electricai utility charges to the City or applicable utility company
based upon the Radios' usage of electricity and applicable tariffs.
Payments to the Cify shall be made in the event Metricom draws
eleciricity from a metered Municipal Facility.
4.4 Other Charges. Metricom shall be solely responsible for the payment of all
fees, expenses, costs or any other charges imposed or based upon
Metricom s perfarmance of this Agreement, including but not limited to:
Any real estate or personal taxes on equipment or property owned by
Metricom , general or special; Any public utility rates, dues, or charges of
any kind for utilities used by Metricom; Any fees, costs or expenses of
insurance; and any other utility, costs, expenses or applicable tariffs
resulting from the perfarmance of this Agreement. Metricom shall pay
any such charges in this section within thirty (30} days of notice of the '
same from the City.
4.5 Reimbursement of City`s Project Review Expenses. Metricom shall
reimburse the City at City's standard rates for reasonabie attorne�s fees
and other project review expenses relating to the preparation and review
of this Agreement, promptly upon receipt of itemized bills, paid invoices,
and other such documentation as Metr�icom shall reasonably require, and
in a total amount not to exceed Two Thousand Dollars ($2,000). The
reimbursement provided for in this § 4.5 shali not replace or excuse
Meh�icom from the payment of any applicable permit fee for work
undertaken pursuant to the initial instailafion of the Radios.
Rightof-Wayand FaciLtyAgreement
City ofSsinf Paul:: Metricom, Inc.
Page 9 of 20
00 - `��
4.6 Municipal Subscriber Progxam. City shall have the right throughout the I
term of this Agreement to receive up to the maximum number specified �,
below (based upon the Cit�s populafion) of free Ricocheit� basic service ',
subscriptions. The number of free subscriptions which the Cify may ���
receive shall be deternuned in accordance with the City's official �
population, as shown on t3ie latest available census data, as follows: (a} for '!
municipalities with a populaiion of less than 100,000, up to a maximum of
ten (10} free subscriptions; (b) for municipalities wifih a population of
between 100,000 and 249,DOQ up to a maximum of fifteen (15) free
subscrip6ons; (c} for municipalities with a population of beltveen 250,000
and 500,000, up to a ma;cimum of twenty (20) free subscriptions; and
(d) for municipalities of over 500,000, up to a maximum of twenty-five (25)
free subscriptions. City shall designate one person wha shall be
responsible for ordering and receiving any subscriptions. To take
advantage of this program, the designated individual should contact
Metricom`s Network Real Estate Deparhnent at the address stated in § 8
below City's right to use the subscriptions shall commence at the time
that Ricochet� service is commercially available in the City and shall
extend until the expiration of the term of this Agreement or through the
length of time that Radios are deployed in the Municipal Right of Way,
whichever is longer. City's use of the subscriptions shall be subject to the
standard RicochetU� terms and conditions of use. City understands attd
agrees that modems and equipment required to utilize the subscriptions
and any additional service subscriptions or service options the City may
desire may be obtained from an authorized retailer at market rates current
from time to time. City shall use all subscriptions provided pursuant to
this section solely for ifis own use and shall not be entifled to resell,
distribute, or otherwise perxnit the use of same by any other person,
excepting a local public entity that provides public service within the
corporate boundaries of the City (e.g., municipal schools, public safety, or
fire departrnents, etc.). The level of benefits and service provided to City
by Mefricom as "basic service" shall not be diminished ar reduced during
the term of this Agreement or renewal thereof or prior to its cancellation
or tertnination, as the case may be.
49 Most-Favored Municipality Clause. Should Metricom either before or'.
after the parties' execution and delivery of this Agreement enter into an '
agreement with another Minnesota municipality, which agreement j
Right-of-Wayand FaciGtyAgreement
City ofSaintPaal:: Metricom, Inc.
Page 10 of ZII
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contains either (a) a higher Right of Way Management Reunhursement as
described in § 4.1 above, or {b) a higher Annual Fee as described in § 4.2
above or (c) a higher amount of Reimbursement of City's Project Review
Expenses as described in § 4.5 above, or (d) a higher or different municipal
subscriber program as described in § 4.6 above, or (e} any other more
favarable material terms , benefit or provision� City shall have the right to
require that Metricom modify this Agreement to incorporate the same or
substantially similaz superior benefits and such other terms. I
5 REMOVAL, RELOCATION OR DTSPLACEMENT oF RADios. Metricom understands and �
acknowledges that City may require Metricom to relocate one or more of its Radios, �
and Mefricom shall at City's direction relocate such Radios at Meiricom s sole cost and
expense, whenever Cify reasonably deterrnines that the relocation is needed for any of
the following purposes: (a} as part of the construction, compietion, repair, relocation, or
maintenance of a City project, a Municipal Faciliiy or a public right-of-way; (b) because
the Radio is interfering with or adversely affecting proper operation or maintenance of
City-owned light poles, traffic signals, or other Municipal Facilities, or any other
fixtures or facilities or uses of the public right-of-way; or (c) ta protect or preserve the
public health, welfare or safety. In any such case, City shall use reasonabie efforts to
assist Metricom in loeating a reasonably equivalent alternate location with na daty to
incur any expenses or cost to City. If Metricom shall fail to relocate any Radios as
requested by the City within a reasonable fime under the circumstances in accordance
with this Agreement, City shall be entitled to relocate the Radios at Meiricom's sole
cost and expense, without further notice to Metricom. If a reasonably equivalent
alternate location cannot be found, then City may remove the radio at Metricom s sole
cost and expense. To the extent the City has actual knowledge thereof, the City will
attempt promptly to inform Meiricom of the displacement or removal of any pole on
which any Radio is located.
5.1 Relocations at Metricom's Request. In the event Mefricom desires to
relocate any Radios from one Municipal Facility to another, Metricom
shall so advise City. City will use reasonable efforts to accomxnodate
Metricom by making another reasonably equivalent Municipal Facility
available for use in accordance with and subject to the terms and
conditions of this Agreement.
5.2 Damage to Public Kight of Way. Whenever the installations, removal or
relocafion of Radios is required or perntitted under this Agreement, and i
such installation, removal or relocation shall canse the Public Right of �
Rightof-Wayand FacilityAgrcrment
"City ofSaintPaul:: Metdcotry Inc
Aage 11 of 20
ba-�t�--
Way to be damaged, Metricom, at its sole cost and expense, shall
prompfly repair and return the Public Right of Way to a safe and
satisfactory condition in accordance with applicable Laws, normal wear
and tear excepted. If Meiricom does not repair the site as just described,
then the City sha11 have fihe opiion, upon fift�en (15) days' prior written
notice to Meiricom, to perform or cause to be performed such reasonable
and necessary work on behalf of Metricom and to charge Metricom for the
proposed costs to be incurred or the actual costs incurred by the City at
Cit�s standazd rates. Upon the receipt of a demand for payment by the
City, Metricom shall prompfly 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 clauns, demands, losses, damages, liabilities, fines, charges, penalties, i
administrative and judicial proceedings and arders, judgements, and all costs and i
expenses incurred in connection therewith, including reasonable attorney's fees and'!
costs of defense (collectively, the "Losses') direcfly or proximately resulfing from �'
Metricom's activities undertaken pursuant to this 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 The foregoing notwithstanding,
Metricom sha11 defend and indemnify the City, and its officers and employees, even in
the case of negligence, unless the allegations allege {a) independent negligence on the
part of the City, its officers and employees or (b) a wrongful act or omission on the part
of the City or its officers or employees. Meiricom shall also defend and indemnify the
City, its officers and empioyees, even in the case of negligence, if the allegations are
based on the City's or its officers or employees' negligence or otherwise wrongful act
or omission in issuing a permiY to Metricom or approving this Agreement, or in failing
to properly or adequately inspect ar enforce compliance with the terms, conditions or
purpose of any permit issued to Metricom.
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,
c�amage, or injury to any Radio or any loss or degradation of the Services
as a result of Cit�s maintenance of Municipal Facilifies or the failure to
supply electricity or any event or occunence which is bevond the
reasonable mntrol of the City or on account of City's exercise of its
regulatory or police powers.
Rightrof-Wayand FacilityAgzeement
Gty ofSaintPaul: � Metricom, Inc.
Page 72 of 20
oo-L��
6.2 Limitation of City's Liability. The City shall be liable only far the cost of
repair to damaged Radios arising from the negligence or will£ul
misconduct of City, its employees, agents, or contractors.
7 INSURANCE. Metricom shall obtain and maintain at all times during the term of this
Agreement Commercial General Liability insurance and Commercial Automobile
Liability insurance protecting Meiricom 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.
The Commercial General Liability insurance policy shall name the City, its council
rnembers, officers, and employees as additional insureds as respects any covered
liability arising out of Mefricom's performance of work under this Agreement.
Coverage shall be in an occurrence form and in accordance with the limits and
provisions specified herein. Claims-made policies are not acceptable. Such insurance
shall not be canceled, nor shall the occurrence or aggregate limits set farth above be
reduced, until the City has received at least thirty (30) days' advance written notice of
such cancellation or change. Meiricom shall be responsible for notifying the City of
such change or cancellation. Prior to any five(5ryear renewal term, pursuant to Section I
2 of this Agreernent, the City may request and the parties shall bargain in good faith to '
increase the above minimum insurance amounts, if such an increase is warranted by ,
industry standards or specific identified risk. Such increase, if any, shall not be �
effeciive uniil the commencement of such renewal term.
7.1 Filing of Certificates and Endorsements. Prior to the commencement of
any work pursuant to this Agreement, Metricom shall file with the City
the required original certificate(s) of insurance with endorsements, which
shall seate the foliowing:
(a) the policy number, name of insurance company; name and
address of the agent or authorized representative; name and ,
address of insured; project name; policy expiration date; and '
specific coverage amounts; i
(b) that the City shall receive thirty (30} days prior notice oF
cancellation;
(c) that Metricom s Commercial General Liability insurance policy
is primary as respects any other valid or collectible insurance that
the City may possess, including any self-insured retentions the City
Righfrof-WayandFacili[yAo eement
City ofSarntPaul :• Me[ricom, Itu:
Page 73 of 20
oo_ L 1 �--
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; and
(d)that Mefricom s Commercial General Liability insurance policy
waives any right of recovery the insurance company may have
against the City.
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 Agreement statutory workers
compensation and employefs liability insurance in an amount not less
than One Million Dollars ($1,000,000) and shati 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 Minnesota and shall carry a''
minimum rating assigned by A.M. Best Br Company's Key Kating Guide
of "A" Overall and a Financial Size Category of "X" (i.e., a size of
$500,000,000 to $750,000,000 based on capital, surplus, and conditional �
reserves). Insurance policies and certificabes issued by non-admitted
insurance companies are not acceptable.
7.4 Severability of Interest Any dedixctibles or self-insured retentions must
be stated on the certificate(s) of insurance, which shail be sent to and
approved by the City. "Severability of interest" or "separation of
insureds' dauses shali be made a part of the Commercial General
Liability and Commerciai Automobile Liability policies. �,
8 NOTICFS. All notices which shall or may be given pursuant to this Agreement shall �
be in writing and delivered personaIly or transmitted (a) thxough 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 iransmission, 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:
Rrght-ot-Wayand FacilityA
G"ty ofS3intPaul:: Metricom, Inc.
Page 14 of 2l7
oo-ct3—
if to the Gty.•
CTTY OF SAINT PAiTL
Attn: Director of Technology and Management Services
290 City Hall,15 West Kellogg Boulevard
Saint Paul, MN 55102
with a copy to.
CITYOFSAINTPAUL
Attn: City Attorney
400 City Ha11,15 West Kellogg Boulevard
St Paul, MN 55102
rf to Metn'com:
M�icoM, INC.
Attn: Network Real Estate
980 ITniversity 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, ar the next business 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 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-fsve
(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 faiis to commence such cure within
forty-five (45) days or fails thereafter diligenUy ta prosecute such cure to completion),
provided that the grace period for any monetazy default shall be ten (10) days from
receipt of notice. Except as expressly provided herein, the rights granted under this
Agreement are irrevocable during the term.
9.1 Bond or Other Securiiy. Prior to the commencement of any work under
this Agreement, Metricom shall ftxrnish or cause to be fiirtushed to City a
Rightrof-Wap and FacrlityA�ement
Gty ofSamtPaul:: Metzico�ry Inc.
Page IS of 20
Oo - � l�a�-
good and sufficient bond, substanfially in the form attached hereto as
Attachment B entifled Surety Bond, in the amount of Tweniy Thonsand
DoIlars ($20,000), or such other comparable security insfrument as may be
approved by the City's attorney or risk manager, securing the faithful
perforsnance by Metricom of all of the work, consiruction, instaIlation,
and removals required to be performed by Meiricom under this Use
Agreement within the time periods set forth hereunder.
9.2 Surrender and Removal. Upon termination of this Agreement for any ,
reason, or expiration of the initiai term or any renewal term of this '
Agreement, Meiricom shall remove any or all of its Radios and anq other
equipment from the City`s Public Right of-Way and Municipal Facilities
within sixty (60) days and shall quit peacefully and surrender possession i
of the Murucipal Facilities or Pnblic Right-of-Way, and shall repair any
damage to the Public Right-of-Way or Municipai Facilities caused by such
equipment or Radios, normal wear and tear excepted, all at Metricom s i
own cost and expense. �
9.3 Discontinuation of Service. In the event that Metricom elects to
discontinue its Services in the City or any Radio sub}ect to this Agreement
is not used to provlde Services, for a period of six {6} months or mare,
Metriwm prompfly shall notify the City, and the City, at its option, may
require Metricom promptly to remove the associated Radio(s) at
Metricom's sole cost and expense or deciicate the same to the City. If
Metricom shall fail to prompily notify the City or remove the Radios I
within 15 days as required by the City, the City shall be entifled to remove '
the Radios at Metricam s sole cost and expense. Meiricom shall execute I
such documents of tifle as will convey all right, tifle and interest in such
Radios, but in no other Metricom properly, intellectual ar otherwise, to
the City. In addition, Metricom s election to discontinue its 5ervices shall
constitute a material breach and ground for City to ternunate tkus
Agreement. In the event of any such non-use of a Radio(s), City may
exercise any rights it has at law or in equity, including but not limited to
declaring the Radio(s) to be a nuisance and abating Yhe nuisance.
10. ASSIGNMENT. This Agreernent 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, , or financially viable affiliate
Rightrof-Wayand FacilityAgreemenf
Gty olSaintPaul: � Metricouy ]nc.
Page 16 of 20
oo- c�ti—
' of Metricom or to any successor-in-interest or entity acquiring all or substantiaIIy all of
Metricom s outstanding voting stock ar assets shall not be deemed an assignment for
the purposes of this Agreement, but Metricom shall notify City of any such event within
sixty (60) days.
11. MLSCELLANEOUS PROVISIONS. The provisions which follow shall apply generally to
the obligations of the parties under this Agreement
11.1 Nonexclusive Use. Metricom understands that tMs Agreement does not
provide Metricom with exclusive use of the Public Right of Wap or any
Municipai Facility and that Ciiy shall have the right to permit other users of the
pixblic right-of-way, including City itself, to install equipment, facilities or
devices in or to use the Public Right of Way or City's Municipal Facilities. City
agrees to advise other providers of similar communicatians services of the ;
presence or planned deployment of the Radios in the Fublic Right of Wap',
and jor on Municipal Facilities.
11.2 Waiver of Breach. The waiver by either party of any breach or violation of '
any provision of this 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 Agreemen�
11.3 Severability ot Provisions. If any one or more of the provisions of this
Agreement shall be held by court of competent jurisdiction in a final judicial
action to be void, voidable, or unenfarceable, such provision(s) shall be deemed
severable from the remaining provisions of Ehis Agreement and shall not affect
the legality, validity, or consiitutionality of the remaining portions of this
Agreement. Notwithstanding the foregoing, the parties agree that if a court or
administrative agency of competent jurisdiction should declare a provision(s) of
Section 4 of this Agreement invalid, then the parties shall each be obligated to
negotiate in good faith to amend Secfion 4 of this Agreement and if, after one
hundred and eighty (180) days from the commencement of negotiations ar such
extension thereof that may be agreed by the parties, the parties are unable to
reach agreement on amendments hereto, then this Agreement may be terminated
by either paziy.
11.4 Contacting Metricom. Metricom shall be available to the staff employees of
any City depariment having }urisdiction over Metricom s activities twenty-four
(24) hours a day, seven {'� days a week, regarding problems or complaints
resulfing from the attachment, installation, operation, maintenance, or removal
Right-of-Wayand FacilityAgmement
City of�intPaul:: Metricom, Inc.
Page 17 of 20
do - `��-
of the Radios. The City may contact by telephone the network control center ,
operator at telephone number (800) $73-3468 regarding such prohlems or'
complaints. ;
11.5 Governing Law; Jurisdiction. This Agreement shall be governed and
consfrued by and in accordance with the laws of the State of Minnesota, without
reference to its conflicts of law principles. If suit is brought by a party to this
Agreement, the parties agree that triai of such action shall be vested exclusively
in the state courts of Minnesota, County of Ramsey, or in the United States
Disfrict Court for the District of Minnesola.
11.6 Attorneys' Fees. Should any dispute arising out of this Agreement lead to
litigation, the prevailing party shall be entifled to recover its costs of suit up to an
amount of Five Thousand Dollars ($5,000.00), inciuding (without limitation)
reasonable attorneys fees.
119 Consent Criteria. In any case where the approval or consent ot one pariy
hereto is required, requested or otherwise to be given under this Agreement,
such party shall not unreasonably delay, condition, or withhold its approval or
consenk
11.8 Representations and Warranties. Each of the parties to this Agreement
represents and warrants that 9t has the full right, power, legal capacity, and
authority to enter into and perform the parkies' respective obligations hereunder
and that such obfigations 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 § 3.2 above.
1L9 Amendment of Agreement. This A�eement may not be amended except
pursuant to a written instrument signed by both parties.
1110 Entire Agreement. This Agreement contains the entire understanding
between the parties with respect to the subject matter herein. There are no
representations, agreemenls, or nnderstandings (whether aral or written)
between or among the parties relaiing to the subject matter of this Agreement
which are not fully expressed herein.
11.11 Conflicts. Any conflict betcveen the provisions of this AgreemenE and any
other present or future lawful exercise of the City's regulatory or police powers
shall be resolved in favor of the latter.
Right-of-Wayand FacitityAgzeement
Gty ofSaintPavl c MeMcom, Inc.
Page 28 of ?0
co-���-
IIl WitZ10SS whereof and in order to bind themselves legally to the
terms and conditions of this Agreement, the duly authorized representatives of the
parties have executed this Agreement as of the Effective Date.
City.• C1TY OF SAINT PAUL, a Minnesota municipal corporation
B
Norman B. Coleman
Its: Mayor
Date: 2000
By;
Peter Hames
Its: Director, Technology and Management Services
Date: _ _ , 2000
By:
Joseph Reid
Its: Director, Office of Financial Services
Date: __, 2000
� Approved as to form:
By:
Matthew J. Ptohl
Its: Assistant City Attorney
Date: 2000
Righaof-Wayand FacilityAgreement
Gty ofSaintPaul:: Metricom, Inc
Page 19 of 20
oo_ c��..
Meiricom: METRICOM, INC., a Delawaze corporation
By:
(name typedJ
Its:
Date:
Attachment A
[Plan and Scale Drawing of "Radio')
Attachment B
[Form of Security Bondj
2000
Rrghtrof-Wayand Fan7ityAgeement
G"!y oFSaintParil:: Metrirorr�.Inc.
Page 20 of 20
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ATTACHMENT B
FORM OF SITRETY BOND
Bond Number:
SURETY BOND
KI30W ALL MEN BY TT�SE PRESENTS:
That METRICOM, INC., incorporated under the laws of the State of Delaware, as
Principal, and Insurance Company of the State of Pennsylvania, incorporated under the (aws of
the State of PennsySvania, as Surety, and authorized to execute 6onds and undertakings as sole
Surety, are held and firmly 6ound unto the City of Saint Paul, MN, as Obligee, in the sum of
Twenty Thousand Doilars ($20,000.00); for the payment thereof, well tnzly to be made, said
Principal and Surety bind themselves, their administrators, successors and assigns, jointly and
severally, firmly by these presents.
The condition ofthe foregoing obligation is such that:
WI�REAS, the above bounden Principal has entered into a certain agreement with the Obligee
for #he following: "Right-of-Way and Facility AgreemenY' (IiOW), the award of which said
ROW agreement was made to the Principal by the Obligee, on (date).
NOW THERERORE, ifPrincipal shall we11, tnify and faithfully perform its duties, all the
undertakings, covenants, terms, conditions, and provisions of said ROW agreement during the
original term thereof, and any extensions thereof which may be granted by the Obligee, with or
without notice to the Surety, and if Principal shali satisfy ai( ciaims and demands incurred under
such ROW agreement, and shail fully indemnify and save harmless Obligee from all costs and
damages which it may suffer by reason of failure to do so, and shail reimburse and repay Ob(igee
al! outlay and expenses which Obligee may incur in making good any default, then this
obligation shall be void; otherwise to remain in full force and effect.
PROVIDED, FURTHER, that said Surety, for value received, hereby stipulates and
agrees that no change, extension of time, alteration or addition to the terms of the ROW
agreement or to the work to be performed thereunder or the specifications accompanying the
same shall in any way affect Surety's obligation on this bond, and Surety does hereby waive
notice of any such change, extension of time, alteration or addition to the terms of the ROW
agreement or to the work or to the specifications.
PROVIDED, HOWEVER, this bond is issued subject to the following express
conditions;
Metricom BondForm
page &1 of1
� -�»-
1. This bond shall be deemed continuous in form and shali remain in full force and effect
until terminated under Section 9("Termination") of said ROW agreement, after which all
liability ceases except as to any liability incurred or accrued prior to the date of such
cancellation, and except as expressly detailed below.
2. In the event that a discontinuance of Service or non-use of radios (as provided in Section
93 of said ROW agreement) or in the event of surrender or removal of the radios (as
provided in Section 9.2 of said ROW agreement), this bond shall be honored by Surety to
Obligee for Obligee's cost to remove all. radios from within the limits of Obligee's city
jurisdiction, provided that the bond is in full force and effect.
3. The aggregate liability of the Surety hereunder on all claims whatsoever shall not exceed
the penal sum of this bond in any event.
4. Surety reserves the right to withdraw as Surety from this bond, except as to any liability
incuned or accrued, and may do so upon giving the Obligee sixty (60) days advance
written notice.
SIGNED AND SEALED this
day of
2000.
PRINCIPAL
Metricom, Inc.
980 University Avenue
Los Gatos, CA 95032
Phone: 408-399-8200
By:
(Printed Name)
Signed:
(Signature)
Title:
SURET'i'
Insurance Company ofthe State ofPennsylvania
2 Rincon Center, 121 Spear Street �
San Francisco, CA 94105
Phone: 415-836-2979
By:
(Printed Name)
Signed:
(Signature)
Titie:
(Affix Corporate 5eals)
(Attach Acknowledgments of both Principal and Surety signatures)
Metricom BondForm
page &2 of2
o�������.
Council File # Op - G��..
Green Sheet # l'03 5 .'1R'
RESOLUTION
Presented By
Referred To
Committee: Date
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WHEREAS, the City of Saint Paul desires to provide its citizens, businesses, employees and visitors a new choice
of high-speed wireless Intemet access capability that does not require the use of a telephone line and which does
not require the use of cables or trenches in the City's rights-of-way; and
WI�REAS, Metricom, Inc., has already rolled out a high-speed wireless Intemet system in the San Francisco,
Seattle and Washington DC metropolitan azeas, and is currently rolling out this same system in the Twin Cities,
which system uses shoebox-sized radio transceivers that aze installed on City streetlights and utility poles; and
WHEREAS, although Metricom is authorized under Minnesota law to use local rights-of-way without having to
enter into a formal agreement with the ]ocal municipality, Metricom has nevertheless eleeted to voluntarily enter
into such agreements with local municipaliries in order to expedite the roll-out of its system; and
WHEREAS, Metricom has previously entered into agreements with forty-seven other local govemment units in the
Twin Ciries area, and has requested that Saint Paul likewise enter into such an agreement; and
WHEREAS, City staff has reviewed and negoriated the terms of an agreement that requires, among other things,
for Metricom to pay the City for all installation and registration perrnit fees, to make an annual payment to the City
of one percent (1%) of gross revenues for subscribers within the city, to pay the City $60.00 annually for each City-
owned pole on which a radio is attached, and to provide the City with 20 free subscriprions to the Intemet service;
now therefora,
BE TT TtESOLVED, that the proper City officials aze hereby authorized to execute and enter into an agreement
w'sth Metricom, as set forth and contained in "Right-of-Way and Facility Agreement," a copy of which agreement
was before the City Council and which is made a part hereof by reference. o�n��.�.�.��o.�N.w
!i�., j, .�.�il j,Li,r '�
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���'i/i i '
OF SAINT PAUL, MINNESOTA
Form Approved by City At orney
gy: � � • �p. a.f. 66
Rpproved by Mayor for Submission to
Counci�
By: � ��
Adopted by CounciZ: Date �o
Adoption Certified by Councs Secretary
DepaAmenuotfice/wuncii: Date Initiated Green Sheet Na. 103528
Technology & PvTanagemc,mt Services June 21, 2000 ��`
GoMact Person & Phone i aY e ���p�
Peter Hames, 266-8196 � l�, � p �� c;xycow�i
Must Be on Cou� AgdMa by (6ate) Assi9n 2 City Attomty ' • P. ._GO �City Clerk
N�y� Fioa�xial Sav Aic Finamiai SavfaaYA
June 2 8, 2 0 0 0 For �iM�wr (g' �) �- 2� -►. _ civil sav�ce conmission
Routing
Order
Total # of Signature
Atl Locations tor Signature)
Acfion Requested:
Authorization to execute and enter into an agreement with Metricom, Inc. as set forth in the "Right-of-Way and Facility
���H
RecommerWaGons: Approve (A) or Reject (R)
Planning Commission
C18 Committee
Civii Servite Commission
Personat Service Contracts Must Answer the Pollowing Quesfions:
t. Has this persoN(rtn ever worked under a contrad for this tlepa�tmeM7
Yes No
2. Has this person/firm ever been a city empbyee?
Yes No
3. Dces tfds personlfum passess a skill �ot nartna0.Y Passessed bY any curreM cily
employee? Yes No
Explain all yes answers on separate sheet and attach W green sheet
U�Uiak�g Pra6lem, lssue, OPportunity (Whu. What, When. Wf�ere, Why�:
Metricom provides a high-speed wireless Tntemet access capahility, through the use of wireless laptop modems, that does not
require the use of a telephone line and does not require the use of cables or trenches in the City's rights-of-way.
Advantages If Approved;
Saint Paul citizens, businesses, emp]oyees and visitors wiA have a way to use a wireless connection to the Internet. The City
will annually receive $60 for each City-owned gole on which a Metricom rndio transmitter is atiached: - In'addition, the City
will receive 20 free subscriptions to Metricom's service. �— "y `-
,.
, ...»
`� �
Disadvantages If Approved:
None.
�
Disadvantages if Not Approved:
Because Metricom is signing up all cities in the metropolitan area, if not approved, Saint Paul citizens, businesses, employees
and visitors will be isolated from a service which will exist elsewhere in the metropolitan azea.
�otal Amount ot Transaction: S
'unding Source:
CosURevenue eudgeted:
AMivify Numbec:
i�wnciat Infortnation: (Ezplai�)
bo -(e \�-
SAINT PAUL
Right-of-Way and Facility Agreement
m HLS RIGHT-OF-WAY AND FACILITY AGIZEEMENT (this "Agreemen�') is '
' 1' dated as of . 2000 (the "Effective Date'), and entered into ''
- by and between the CIT'Y OF SAINT PAUL, a Minnesota local government unit
(the "City"}, and METRICOM, INC., a Delaware corporation ("Metricom").
Recitals
A. Metricom owns, maintains, and operates, in accordance with regulations
promulgated by the Federal Communications Commission, a mobffe digital data
communicaiions radio network known as Ricochet�, utilizing Radios {as defined in
§ 1.10 below} and related equipment certified by the Federai Communications
Commission.
B. For purpose of operating Ricochet�, Mefricom wishes to locate, place, '.
attach, install, operate, and maintain Radios an the Public Right of Way (as defined in
§ 1.9 below) on Municipal Facilities, as well as on facilities owned by third parties i
therein.
C. Mefricom acknowledges that, notwithstanding any provision within this
Agreement to the contrary, it shall comply with any and all existing or future laws,
including but not limited to those regulating the City's public right of wap found in
Chapters 116 and 135 of flie City of St. Paul Legislative Code, before exercising atty
right under this Agreement Nothing herein shall constitute a pernussion or
authorization or waiver from the City of its night to reqwire such prior compliance by ;
Metricom. ;
Agreement
NOw, �hG�efOrA, for good and valnable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties a�ee to the follow3ng
covenants, terms, and condiiions, and that the above-referenced Recitals are hereby
incorporated:
Rightrof-Wayand FacilityAgreement
Ci[y of,S�intPauL: Metrimm, Inc.
Page 1 of 20
00 -C�3-
1 DEFINTTIONS. The following definitions shali apply generally to the provisions of this
Agreemen�
1.1 Adjusted Gross Revenues. "Adjusted Gross Revenues' means the gross
dollar amount received by Mefricom for its Services (as deiined in § 1.11
below) provided to subscribers with billing addresses in the City,
excludutg (i) any utility users tax, communications tax, or similar tax or
fee; (ii) local, state, or federal t�axes that have been billed to the subscribers
and separately stated on subscribers bills; and (iii) revenue uncollectible
from subscribers (i.e., bad debtsj with billing addresses in the City that
was previously included in Adjusted Gross Revenues.
1.2 C'ity. "City" means the City of SainE Paul.
1.3 Fee. ° Fee ` means any assessment, license, charge, fee, imposition, tax, or
levy of general appfication to entities doing business in the Ciiy lawfully
imposed by any governmental body (but excluding any utility users tax,
franchise fees, communications tax, or similar tax or fee).
1.4 Installation Date. "Installa6on Aate" shall mean the date that the first �
Radio is installed by Metricom pursuant to this Agreemenk
1.5 Laws. "Laws° means any and all statutes, constitutions, ordinances,
resolutions, regulaHons, judicial decisions, rules, tariffs, administrative
orders, certificates, orders, ar other requirements of the City or other
governmental agency having joint or several jurisdiction over the pariies
to this Agreement.
L6 Metricom. "Metricom' means Metricorn, Inc., a corporation duly
organized and exisiing under the laws of the State of Delaware, and its �,
lawful successors, assigns, and h�ansferees. �
1.7 MPUC: " MPLTC" means the Minnesota Public Utility Commission.
1.& MunicipalFacilrties. ° Municipal Pacilities" means City-owned street light
poles, lighting fixtures or electroliers, that are located within the Public
Ttight of Way and may refer to such facilities in the singular or plurai, as
appropriate to the context in which used. Municipal Facilihies does not
include any traffic signals, semaphores, or poles on which traffic signals or
semaphores are attached.
Right-of-Wayand FacilifyAgrcrment
Gty ofSaintPaul: • Mefrimm, Inc.
Page 2 of 20
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1.9 Public Right of TNay. "Public Right of Wa�` means the space in, upon,
above, along, across, and over the public streets, roads, highways, lanes,
cartways, courts, ways, alleys, boulevards, sidewalks, bicycle lanes, and
places, including all public utility easements and public service easements
as the same now or may hereafter exist, that aze under the }urisdiction of
the City. This term shall not include county, state, or federal rights of way
or any property owned by any person or entity other than the City, except
as provided by applicable Laws or pursuant to an agreement between the
City and any such person or entity. If the City adjusts its boundaries
pursuant to Minn Stat, Chap. 414 through annexation, incorporation,
combination, detachment, or other means, this Agreement shall be
binding on the ent'rre area within the City's boundaries after the
adjustment
11Q Radio. "Radio' means the radio equipment, whether referred to singly or
collectively, and related appurtenances to be installed and operated by
Metricom hereunder, only as illustrated in the drawings (or with similar
damensions) attached to this Agreement as Attachment A, which is hereby
incorporated.
1.10.1 Rico�het. "RicocheP' means a mobile digital data communications radio
network utilizing Radios (as defined in § 1.10 above) and related equipment,
which operates in one or more of the following spectra of radio frequencies: 902-
928 MHz, 2305-2350 MHz or 5725-5850 MHz, as permitted by the Federal
Communications Commission.
1.11 Services. °Services' means the mobile di,gital communications services
provided through Ricocheifl by Metriwm, which services consist
principally of wireless Internet, e-mail and local area network access and
may include transmission of sound and video images; provided, however,
that "Services" shall not be construed, interpreted or applied to authorize
either real fime telecommnnications services (i�cluding telephone and
voice) or video or cable television communications services except as may
be considered standard Internet content
2 TERM. This Agreement shall be effective as of the Effective Date and shall extend far
a term of nine (9) years commencing on the Installafion Date, unless it is eazlier
terminated by either party in accordance with the provisions herein. The term of this
Righf-of-Wayand Faolity A�rement
Gty ofSaintPaul:: Metrico� Inc.
Page 3 of 20
D es •- � �Y
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 ofiher of its intenfion naE to renew not less than one hundreci eighiy (180)
calendar days priar to commencement of the retevant renewal term
3 SCOPE OF AGREEMENT. Any and all rights expressly granted to Metricom under this
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 Public Right of Way exclusively or concurrenfly with any other
person or entifiy and shall be further subject to all deeds, easements, dedications,
conditions, covenants, restrictions, encumbrances, and claims of tifle of record which
may affect the Public Right of Way. Nothing in this Agreement shall be 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 ta the rights
granted under this Agreement shall be subject to the reasonable prior review and
approvat of the Cily.
3.1 Attachment to Municipal Facilities. The City hereby aixthorizes and
permits Metricom to enter upon the Pubtic 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@ and providing Services. In addition, subject to the
provisions of § 4.3 below, Metricom shall have the right to draw electricity
for the operaiaon af the Radios from the power source associated with
each such attachment to Municipal Facilihes. Metricom acknowledges,
however, that most of City's Municipal Facilities use "banked" photo-
electric cells for the supply of electricity and therefore will not be suitable
for the drawing of electricity or the attachment of Radios.
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 Public Right of Way and to attach,
instali, operate, maintain, remove, reattach, reinstall, relocate, and replace
such number of Radios in or on poles or other structures owned by public
utility companies ar other property owners located within the Public
Right of Way as may be permitted by the public utiUty company or
property owner, as the case may be, solely for the puzposes of operating
RicochetC�3 and providing Services. Upon request, Metricom shall furnish
to the City documentaiion of such permission from the individual utility
Rightof-Wayand FacilityAgteement
Crty ofS3intAaul.°Metricom, Inc:
Page 4 of 20
00 —4\i-
or property owner responsible. City agrees to cooperate with Metricom,
at no cost or expense to City, in obtaining where necessary the consenis of ,
third-party owners of properiy located in the Public Right of W ay. ,
3.3 No Interference. Metricom in the performance and exercise of its rights �
and obligations under this Agreement shall not interfere in any manner I
with the existence and operation of any and all public and private rights'
of way, sanitary sewers, water in.ains, storm drains, gas mauvs, poles,
aeriai and underground electrical and telephone wires, electroliers, cable
television, and other information or communications, utility, or municipal
property or Municipal Facilities without the express prior written
approval of the City or owner or owners of the affected property or
properties, except as pernutted by applicable Laws or this Agreement.
City agrees to use reasonable efforts to require the inclusion of the same ar
a sunilar prohibition on interference as that stated above in all agreements
and franchises City may enter into after the Effective Date with other
information or communications providers and carriers.
3.3.1 Interference Resolution. Any actual or anticipated radio ''�
interference caused by either the presence of the Radios or the presence of l
any such other communications equipment or devices in the Public Right I
of Way shall be resoived by Metricom and any such other providers ''
without cost to City on the basis of the applicable rules, regulations,
praciices, and procedures of the FCC. City agrees to assist Metricom in the
resolution of any such interference dispute at Metricom s sole expense.
3.4 Compliance with Laws. Metricom shall comply with all applicable Laws
in the exercise and performance of its rights and obligations under this
Agreemenk The Right-of-Way Management Reimbursement provided for
in § 4.1 below shall be in lieu of all other City fees, with the exception of
any City permits such as registration and obstrucfion permit fee required
for the initial installation of the Radios or future radios. City shall ',
prornpfly respond to 2vletricom s fllings and shall otherwise cooperate
with Mehicom in facilitating the deployment of Ricochet� in the Pubiic
Right of W ay in a reasonable and timely manner.
3.5 Location and Installation. The locations of Metricom's Radios shall be
determined, subject to the reasonable prior review and approval of the
City, promptly afEer Metricom s review of available street light maps and
Right-of-Wayaotf FacilityAgreement
Gty ofSainl Paul :• MeMcom, Inc.
Page 5 of 20
Oo - C1�-
prior to deployment of the Radios. Upon the completion of any cunent ar
future installation, Mefricom promptly shall furnish to the City an as-built
list showing the exact location of the Radios in the Public Right of Way.
4 CoMPE1JSaTiotv; FEES; UTtLtTY cxnRCES. Metricom shatl be solely responsibie for the ,
payment of all lawful Fees in connection with Metricom s per£ormance under this
AgreemenE, in accordance with the terms set forth below.
4.1 Right-of-Way Management Reimbursement. In order to reimburse City for
any right-of-way management costs it may incur, Metricom shall pay to
the City, on an annual basis, an amount equal to one percent (1%) of
Adjusted Gross Revenues (the "Right of-Way Management
Reimbursemen�'), which amount may be collected from subscribers of the
Services (excluding any City subscriptions authori2.ed under Section 4.5 of
this Agreement) with billing addresses in the City and remitted to City as
provided herein. The paxiies agree that such Right-of-Way Management
Reimbursement represents a fair estimate of the costs of continuing
management of the Public Right of Way and as a substitute for User Fees j
required by Chapter 116 and 135 of City of SaintPaul Legislative Code
utilized by Metricom and that such Right-of-Way Management
Reimbursement is not a franchise fee or payment for use of the Public Right
of Way. The Right of-Way Management Reimbursement shail be payable
for the period commencing upon the date that Services are first offered and
ending on filie date of termination of this Agreement, and shall be due on or
before the 45� day after the end of each calendar year or fraction thereof.
Within forty-five {45) days after the texminafion of this Agreement,
compensation shail be paid for the period elapsing since the end of the last
calendar year for which compensation has been paid. Metricom shall also
file a report (the "Compensation Report") with the City, by sending copies
to the individuals listed in § 8. The Compensation Report shall show the
Right-of-Way Management Reimbursement paid to the City, as well as all
Metricom revenues for the preceding year based upon Metricom s
services or operations within the Ciiy that made up Ad}usted Gross
Revenues. The Compensation Report shall also show any adjusiments as
provided for in this Agreement for bad debt [as defined in § 1.1{iii)}. In
the event there is a significant fluctuation in the annual amount af
compensation being remiited to the City, Metricom will, at the City's
request, meet and discuss with the City the cause or causes of such
fluctuations. Meiricom and the City mutually agree to provide reasonable
Righbof-Wayand FaciGtyAgreement
Cify of�intPaul eMelricom, Inc
PBge b Df 2�
00 -���-
documentation to assist in determining such cause or causes. The
Compensation Report shall be furnished to the City with each payment of
compensation required by this section, and shall be executed and attested to
by an authoiized officer of Metricom or his or her designee, verifying the
accuracy of the Compensation Report and amount of all fees, compensation,
or other payments under this Agreement The City agrees to hold in
confidence any non-public information in the Compensafion Report to the
fullest eatent �xrmitted by Law. If Metricom discovers any error in the
correct amount of compensation due, the City shall be paid within thirty
(30) days of discovery of the errar or detertnination of the correct amount '
Any overpayment to the City through error or otherwise shall be refiznded ',
ar offset against the next payment due. Acceptance by the City of any I
payment due under this section shall not be deemed to be a waiver by the
City of any breach of this 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. City may, at any time, at City's sole oplion, upon
ninety (90) days written noiice, require Meiricom to discontinue the Right-
of-Way Management Reimbursement compensation. Upon receiving such
notice Metricom shall, no laYer than ninety {40) days after receiving such
notice, cease making all compensation payments that would have been
payable after such ninety (90) day notice period. If City requires such a
discontinuation of Right of-Way Management Reimbursement
compensation, the City may then charge, on an annual basis, its actual
Right-of-Way Management costs (pursuant to Minnesota Statutes Sec.
237.162, Subd. 9 and Sec. 237163, Subd. 2(b)), that are incurred after the
expiration of the ninety (90} day period described above. Metricom shall
only be liable for such actual annuai Right of-Way management costs to
the extent such cosfis exceed the annual retail value of the service
subscriptions for wluch the City is eligible under Section 4.5 of this
Agreement.
4.11 Reduction of Right-of-Way Management Reimbursement by
Amount of Utility Users or Communications Tax.
Notwithstanding anything to the contrary in this Agreement, if the
Services are subject to a utility users tax, communications tax, or ',
other similar tax or fee which accrues to the City by operation of �
the Cii�s Municipal Code or other applicable law, then the amount
Rightrof-Wayand FacilityAgreement
City ofSaintPaul :� Metracom, Inc.
�8p'2 7 Of 2�
�O-4��-
of the Right of-Way Management Reimbursement shall be reduced
by the amount of the applicable utility users tax, communications
tax, or such other similar tax or fee.
Accounting Matters, Mefricom shall keep accurate books of account, in accardance
with Generally Accepted Accounting Principles (GAAP), at its principal office in Los
Gatos or such ofiher 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 boaks of account
relafive to the City at any time during regulaz business hours on thirty (30) days prior
written notice and may audit the books from time to time at the CitJ�s sole expense, but
in each case only to the extent necessary to confirm the accuracy of payments due under
§ 41 above. Alternatively, at Cit}�s option, Metricom will make available for inspection
by the City at Metricom's office Iocated closest to the City, upon thirfy (30) days prior
written notice, the relevant portions of ifs books and records as reasonably necessary to
confirm the accuracy of any payments due the City under this Agreement. The City
agrees to hold in confidence any non-public information it learns from Metricom to the
fullest extent permitted by Law. The City may request, and Mehricom will promptly
provide, to the individuals listed in Section 8, Metricom's most recent annual report
which shall contain a financial report from Metricom's independent auditors. The City
may also, at its optipn, not more than once a year, require that Metricom s compliance
with the terms and condilions of this Agreement, including, but not lixnited to, the
computation of any fees or payments, be verified by a certified public accountant or
comparably qnalified consultant at the sole expense of the Cify.
4.2 Annual Fee. As compensation for the use of Municipal Facilities,
Metricom shall pay to the City an annual fee (the "Annual Fee") in the
amount of Sixty Dollazs ($60.00) for the use of each Municipal Facility, if �
any, upon which a Radio has been installed pursuant to this Agreement.
Where light poles or other facilifies to be used by Metricom within the
Public Right of Way are owned by a utility, such annual fee shall be paid
to the appropriate utility and not to the City, The aggregate Axuival Fee
with respect to each year of the term shall be an amount equal to the
nixmber of Radios installed on Municipal Facilities during any part of the
preceding twelve (12) months multiplied by the Annual Fee, prorated as
appropriate, and shall be due and payable not later Ehan forty-five (45)
days after each anniversary of the InstaIlafiion Date. Cify represents and
Right-nf-Wayand FacitityAgreement
Gty of3aintPaul c� Metricom, Inc
Page 8 of 2D
O o - L 1?---
covenants that City owns all Municipal Facilities for the use of which it is
colleciing from Metricom the Annual Fee pursuant to this § 4.2.
4.2.1 CPI Ad}ustment. Effective commencing on the first anniversary of
the Installation Bate and continuing on each anniversary thereafter,
the Annual Fee with respect to the ensuing one-yeaz period shall be
increased by a percentage amount equal to the percentage increase,
if any, in the U.S_ Deparhnent of Labor, Bureau of Labor Statistics
Consumer Price Index (All Items, All Consumers, 1982-1984=100) ,
which occurred dvring the previous fiveyear period for the ,
Midwest Urban Region Consolidated Meiropolitan Statisfical Area.
4.3 Eleciricity Charges. Mefricom shall be solely responsible for the payment
of all electricai utility charges to the City or applicable utility company
based upon the Radios' usage of electricity and applicable tariffs.
Payments to the Cify shall be made in the event Metricom draws
eleciricity from a metered Municipal Facility.
4.4 Other Charges. Metricom shall be solely responsible for the payment of all
fees, expenses, costs or any other charges imposed or based upon
Metricom s perfarmance of this Agreement, including but not limited to:
Any real estate or personal taxes on equipment or property owned by
Metricom , general or special; Any public utility rates, dues, or charges of
any kind for utilities used by Metricom; Any fees, costs or expenses of
insurance; and any other utility, costs, expenses or applicable tariffs
resulting from the perfarmance of this Agreement. Metricom shall pay
any such charges in this section within thirty (30} days of notice of the '
same from the City.
4.5 Reimbursement of City`s Project Review Expenses. Metricom shall
reimburse the City at City's standard rates for reasonabie attorne�s fees
and other project review expenses relating to the preparation and review
of this Agreement, promptly upon receipt of itemized bills, paid invoices,
and other such documentation as Metr�icom shall reasonably require, and
in a total amount not to exceed Two Thousand Dollars ($2,000). The
reimbursement provided for in this § 4.5 shali not replace or excuse
Meh�icom from the payment of any applicable permit fee for work
undertaken pursuant to the initial instailafion of the Radios.
Rightof-Wayand FaciLtyAgreement
City ofSsinf Paul:: Metricom, Inc.
Page 9 of 20
00 - `��
4.6 Municipal Subscriber Progxam. City shall have the right throughout the I
term of this Agreement to receive up to the maximum number specified �,
below (based upon the Cit�s populafion) of free Ricocheit� basic service ',
subscriptions. The number of free subscriptions which the Cify may ���
receive shall be deternuned in accordance with the City's official �
population, as shown on t3ie latest available census data, as follows: (a} for '!
municipalities with a populaiion of less than 100,000, up to a maximum of
ten (10} free subscriptions; (b) for municipalities wifih a population of
between 100,000 and 249,DOQ up to a maximum of fifteen (15) free
subscrip6ons; (c} for municipalities with a population of beltveen 250,000
and 500,000, up to a ma;cimum of twenty (20) free subscriptions; and
(d) for municipalities of over 500,000, up to a maximum of twenty-five (25)
free subscriptions. City shall designate one person wha shall be
responsible for ordering and receiving any subscriptions. To take
advantage of this program, the designated individual should contact
Metricom`s Network Real Estate Deparhnent at the address stated in § 8
below City's right to use the subscriptions shall commence at the time
that Ricochet� service is commercially available in the City and shall
extend until the expiration of the term of this Agreement or through the
length of time that Radios are deployed in the Municipal Right of Way,
whichever is longer. City's use of the subscriptions shall be subject to the
standard RicochetU� terms and conditions of use. City understands attd
agrees that modems and equipment required to utilize the subscriptions
and any additional service subscriptions or service options the City may
desire may be obtained from an authorized retailer at market rates current
from time to time. City shall use all subscriptions provided pursuant to
this section solely for ifis own use and shall not be entifled to resell,
distribute, or otherwise perxnit the use of same by any other person,
excepting a local public entity that provides public service within the
corporate boundaries of the City (e.g., municipal schools, public safety, or
fire departrnents, etc.). The level of benefits and service provided to City
by Mefricom as "basic service" shall not be diminished ar reduced during
the term of this Agreement or renewal thereof or prior to its cancellation
or tertnination, as the case may be.
49 Most-Favored Municipality Clause. Should Metricom either before or'.
after the parties' execution and delivery of this Agreement enter into an '
agreement with another Minnesota municipality, which agreement j
Right-of-Wayand FaciGtyAgreement
City ofSaintPaal:: Metricom, Inc.
Page 10 of ZII
Oo . `17—
contains either (a) a higher Right of Way Management Reunhursement as
described in § 4.1 above, or {b) a higher Annual Fee as described in § 4.2
above or (c) a higher amount of Reimbursement of City's Project Review
Expenses as described in § 4.5 above, or (d) a higher or different municipal
subscriber program as described in § 4.6 above, or (e} any other more
favarable material terms , benefit or provision� City shall have the right to
require that Metricom modify this Agreement to incorporate the same or
substantially similaz superior benefits and such other terms. I
5 REMOVAL, RELOCATION OR DTSPLACEMENT oF RADios. Metricom understands and �
acknowledges that City may require Metricom to relocate one or more of its Radios, �
and Mefricom shall at City's direction relocate such Radios at Meiricom s sole cost and
expense, whenever Cify reasonably deterrnines that the relocation is needed for any of
the following purposes: (a} as part of the construction, compietion, repair, relocation, or
maintenance of a City project, a Municipal Faciliiy or a public right-of-way; (b) because
the Radio is interfering with or adversely affecting proper operation or maintenance of
City-owned light poles, traffic signals, or other Municipal Facilities, or any other
fixtures or facilities or uses of the public right-of-way; or (c) ta protect or preserve the
public health, welfare or safety. In any such case, City shall use reasonabie efforts to
assist Metricom in loeating a reasonably equivalent alternate location with na daty to
incur any expenses or cost to City. If Metricom shall fail to relocate any Radios as
requested by the City within a reasonable fime under the circumstances in accordance
with this Agreement, City shall be entitled to relocate the Radios at Meiricom's sole
cost and expense, without further notice to Metricom. If a reasonably equivalent
alternate location cannot be found, then City may remove the radio at Metricom s sole
cost and expense. To the extent the City has actual knowledge thereof, the City will
attempt promptly to inform Meiricom of the displacement or removal of any pole on
which any Radio is located.
5.1 Relocations at Metricom's Request. In the event Mefricom desires to
relocate any Radios from one Municipal Facility to another, Metricom
shall so advise City. City will use reasonable efforts to accomxnodate
Metricom by making another reasonably equivalent Municipal Facility
available for use in accordance with and subject to the terms and
conditions of this Agreement.
5.2 Damage to Public Kight of Way. Whenever the installations, removal or
relocafion of Radios is required or perntitted under this Agreement, and i
such installation, removal or relocation shall canse the Public Right of �
Rightof-Wayand FacilityAgrcrment
"City ofSaintPaul:: Metdcotry Inc
Aage 11 of 20
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Way to be damaged, Metricom, at its sole cost and expense, shall
prompfly repair and return the Public Right of Way to a safe and
satisfactory condition in accordance with applicable Laws, normal wear
and tear excepted. If Meiricom does not repair the site as just described,
then the City sha11 have fihe opiion, upon fift�en (15) days' prior written
notice to Meiricom, to perform or cause to be performed such reasonable
and necessary work on behalf of Metricom and to charge Metricom for the
proposed costs to be incurred or the actual costs incurred by the City at
Cit�s standazd rates. Upon the receipt of a demand for payment by the
City, Metricom shall prompfly 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 clauns, demands, losses, damages, liabilities, fines, charges, penalties, i
administrative and judicial proceedings and arders, judgements, and all costs and i
expenses incurred in connection therewith, including reasonable attorney's fees and'!
costs of defense (collectively, the "Losses') direcfly or proximately resulfing from �'
Metricom's activities undertaken pursuant to this 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 The foregoing notwithstanding,
Metricom sha11 defend and indemnify the City, and its officers and employees, even in
the case of negligence, unless the allegations allege {a) independent negligence on the
part of the City, its officers and employees or (b) a wrongful act or omission on the part
of the City or its officers or employees. Meiricom shall also defend and indemnify the
City, its officers and empioyees, even in the case of negligence, if the allegations are
based on the City's or its officers or employees' negligence or otherwise wrongful act
or omission in issuing a permiY to Metricom or approving this Agreement, or in failing
to properly or adequately inspect ar enforce compliance with the terms, conditions or
purpose of any permit issued to Metricom.
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,
c�amage, or injury to any Radio or any loss or degradation of the Services
as a result of Cit�s maintenance of Municipal Facilifies or the failure to
supply electricity or any event or occunence which is bevond the
reasonable mntrol of the City or on account of City's exercise of its
regulatory or police powers.
Rightrof-Wayand FacilityAgzeement
Gty ofSaintPaul: � Metricom, Inc.
Page 72 of 20
oo-L��
6.2 Limitation of City's Liability. The City shall be liable only far the cost of
repair to damaged Radios arising from the negligence or will£ul
misconduct of City, its employees, agents, or contractors.
7 INSURANCE. Metricom shall obtain and maintain at all times during the term of this
Agreement Commercial General Liability insurance and Commercial Automobile
Liability insurance protecting Meiricom 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.
The Commercial General Liability insurance policy shall name the City, its council
rnembers, officers, and employees as additional insureds as respects any covered
liability arising out of Mefricom's performance of work under this Agreement.
Coverage shall be in an occurrence form and in accordance with the limits and
provisions specified herein. Claims-made policies are not acceptable. Such insurance
shall not be canceled, nor shall the occurrence or aggregate limits set farth above be
reduced, until the City has received at least thirty (30) days' advance written notice of
such cancellation or change. Meiricom shall be responsible for notifying the City of
such change or cancellation. Prior to any five(5ryear renewal term, pursuant to Section I
2 of this Agreernent, the City may request and the parties shall bargain in good faith to '
increase the above minimum insurance amounts, if such an increase is warranted by ,
industry standards or specific identified risk. Such increase, if any, shall not be �
effeciive uniil the commencement of such renewal term.
7.1 Filing of Certificates and Endorsements. Prior to the commencement of
any work pursuant to this Agreement, Metricom shall file with the City
the required original certificate(s) of insurance with endorsements, which
shall seate the foliowing:
(a) the policy number, name of insurance company; name and
address of the agent or authorized representative; name and ,
address of insured; project name; policy expiration date; and '
specific coverage amounts; i
(b) that the City shall receive thirty (30} days prior notice oF
cancellation;
(c) that Metricom s Commercial General Liability insurance policy
is primary as respects any other valid or collectible insurance that
the City may possess, including any self-insured retentions the City
Righfrof-WayandFacili[yAo eement
City ofSarntPaul :• Me[ricom, Itu:
Page 73 of 20
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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; and
(d)that Mefricom s Commercial General Liability insurance policy
waives any right of recovery the insurance company may have
against the City.
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 Agreement statutory workers
compensation and employefs liability insurance in an amount not less
than One Million Dollars ($1,000,000) and shati 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 Minnesota and shall carry a''
minimum rating assigned by A.M. Best Br Company's Key Kating Guide
of "A" Overall and a Financial Size Category of "X" (i.e., a size of
$500,000,000 to $750,000,000 based on capital, surplus, and conditional �
reserves). Insurance policies and certificabes issued by non-admitted
insurance companies are not acceptable.
7.4 Severability of Interest Any dedixctibles or self-insured retentions must
be stated on the certificate(s) of insurance, which shail be sent to and
approved by the City. "Severability of interest" or "separation of
insureds' dauses shali be made a part of the Commercial General
Liability and Commerciai Automobile Liability policies. �,
8 NOTICFS. All notices which shall or may be given pursuant to this Agreement shall �
be in writing and delivered personaIly or transmitted (a) thxough 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 iransmission, 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:
Rrght-ot-Wayand FacilityA
G"ty ofS3intPaul:: Metricom, Inc.
Page 14 of 2l7
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if to the Gty.•
CTTY OF SAINT PAiTL
Attn: Director of Technology and Management Services
290 City Hall,15 West Kellogg Boulevard
Saint Paul, MN 55102
with a copy to.
CITYOFSAINTPAUL
Attn: City Attorney
400 City Ha11,15 West Kellogg Boulevard
St Paul, MN 55102
rf to Metn'com:
M�icoM, INC.
Attn: Network Real Estate
980 ITniversity 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, ar the next business 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 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-fsve
(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 faiis to commence such cure within
forty-five (45) days or fails thereafter diligenUy ta prosecute such cure to completion),
provided that the grace period for any monetazy default shall be ten (10) days from
receipt of notice. Except as expressly provided herein, the rights granted under this
Agreement are irrevocable during the term.
9.1 Bond or Other Securiiy. Prior to the commencement of any work under
this Agreement, Metricom shall ftxrnish or cause to be fiirtushed to City a
Rightrof-Wap and FacrlityA�ement
Gty ofSamtPaul:: Metzico�ry Inc.
Page IS of 20
Oo - � l�a�-
good and sufficient bond, substanfially in the form attached hereto as
Attachment B entifled Surety Bond, in the amount of Tweniy Thonsand
DoIlars ($20,000), or such other comparable security insfrument as may be
approved by the City's attorney or risk manager, securing the faithful
perforsnance by Metricom of all of the work, consiruction, instaIlation,
and removals required to be performed by Meiricom under this Use
Agreement within the time periods set forth hereunder.
9.2 Surrender and Removal. Upon termination of this Agreement for any ,
reason, or expiration of the initiai term or any renewal term of this '
Agreement, Meiricom shall remove any or all of its Radios and anq other
equipment from the City`s Public Right of-Way and Municipal Facilities
within sixty (60) days and shall quit peacefully and surrender possession i
of the Murucipal Facilities or Pnblic Right-of-Way, and shall repair any
damage to the Public Right-of-Way or Municipai Facilities caused by such
equipment or Radios, normal wear and tear excepted, all at Metricom s i
own cost and expense. �
9.3 Discontinuation of Service. In the event that Metricom elects to
discontinue its Services in the City or any Radio sub}ect to this Agreement
is not used to provlde Services, for a period of six {6} months or mare,
Metriwm prompfly shall notify the City, and the City, at its option, may
require Metricom promptly to remove the associated Radio(s) at
Metricom's sole cost and expense or deciicate the same to the City. If
Metricom shall fail to prompily notify the City or remove the Radios I
within 15 days as required by the City, the City shall be entifled to remove '
the Radios at Metricam s sole cost and expense. Meiricom shall execute I
such documents of tifle as will convey all right, tifle and interest in such
Radios, but in no other Metricom properly, intellectual ar otherwise, to
the City. In addition, Metricom s election to discontinue its 5ervices shall
constitute a material breach and ground for City to ternunate tkus
Agreement. In the event of any such non-use of a Radio(s), City may
exercise any rights it has at law or in equity, including but not limited to
declaring the Radio(s) to be a nuisance and abating Yhe nuisance.
10. ASSIGNMENT. This Agreernent 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, , or financially viable affiliate
Rightrof-Wayand FacilityAgreemenf
Gty olSaintPaul: � Metricouy ]nc.
Page 16 of 20
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' of Metricom or to any successor-in-interest or entity acquiring all or substantiaIIy all of
Metricom s outstanding voting stock ar assets shall not be deemed an assignment for
the purposes of this Agreement, but Metricom shall notify City of any such event within
sixty (60) days.
11. MLSCELLANEOUS PROVISIONS. The provisions which follow shall apply generally to
the obligations of the parties under this Agreement
11.1 Nonexclusive Use. Metricom understands that tMs Agreement does not
provide Metricom with exclusive use of the Public Right of Wap or any
Municipai Facility and that Ciiy shall have the right to permit other users of the
pixblic right-of-way, including City itself, to install equipment, facilities or
devices in or to use the Public Right of Way or City's Municipal Facilities. City
agrees to advise other providers of similar communicatians services of the ;
presence or planned deployment of the Radios in the Fublic Right of Wap',
and jor on Municipal Facilities.
11.2 Waiver of Breach. The waiver by either party of any breach or violation of '
any provision of this 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 Agreemen�
11.3 Severability ot Provisions. If any one or more of the provisions of this
Agreement shall be held by court of competent jurisdiction in a final judicial
action to be void, voidable, or unenfarceable, such provision(s) shall be deemed
severable from the remaining provisions of Ehis Agreement and shall not affect
the legality, validity, or consiitutionality of the remaining portions of this
Agreement. Notwithstanding the foregoing, the parties agree that if a court or
administrative agency of competent jurisdiction should declare a provision(s) of
Section 4 of this Agreement invalid, then the parties shall each be obligated to
negotiate in good faith to amend Secfion 4 of this Agreement and if, after one
hundred and eighty (180) days from the commencement of negotiations ar such
extension thereof that may be agreed by the parties, the parties are unable to
reach agreement on amendments hereto, then this Agreement may be terminated
by either paziy.
11.4 Contacting Metricom. Metricom shall be available to the staff employees of
any City depariment having }urisdiction over Metricom s activities twenty-four
(24) hours a day, seven {'� days a week, regarding problems or complaints
resulfing from the attachment, installation, operation, maintenance, or removal
Right-of-Wayand FacilityAgmement
City of�intPaul:: Metricom, Inc.
Page 17 of 20
do - `��-
of the Radios. The City may contact by telephone the network control center ,
operator at telephone number (800) $73-3468 regarding such prohlems or'
complaints. ;
11.5 Governing Law; Jurisdiction. This Agreement shall be governed and
consfrued by and in accordance with the laws of the State of Minnesota, without
reference to its conflicts of law principles. If suit is brought by a party to this
Agreement, the parties agree that triai of such action shall be vested exclusively
in the state courts of Minnesota, County of Ramsey, or in the United States
Disfrict Court for the District of Minnesola.
11.6 Attorneys' Fees. Should any dispute arising out of this Agreement lead to
litigation, the prevailing party shall be entifled to recover its costs of suit up to an
amount of Five Thousand Dollars ($5,000.00), inciuding (without limitation)
reasonable attorneys fees.
119 Consent Criteria. In any case where the approval or consent ot one pariy
hereto is required, requested or otherwise to be given under this Agreement,
such party shall not unreasonably delay, condition, or withhold its approval or
consenk
11.8 Representations and Warranties. Each of the parties to this Agreement
represents and warrants that 9t has the full right, power, legal capacity, and
authority to enter into and perform the parkies' respective obligations hereunder
and that such obfigations 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 § 3.2 above.
1L9 Amendment of Agreement. This A�eement may not be amended except
pursuant to a written instrument signed by both parties.
1110 Entire Agreement. This Agreement contains the entire understanding
between the parties with respect to the subject matter herein. There are no
representations, agreemenls, or nnderstandings (whether aral or written)
between or among the parties relaiing to the subject matter of this Agreement
which are not fully expressed herein.
11.11 Conflicts. Any conflict betcveen the provisions of this AgreemenE and any
other present or future lawful exercise of the City's regulatory or police powers
shall be resolved in favor of the latter.
Right-of-Wayand FacitityAgzeement
Gty ofSaintPavl c MeMcom, Inc.
Page 28 of ?0
co-���-
IIl WitZ10SS whereof and in order to bind themselves legally to the
terms and conditions of this Agreement, the duly authorized representatives of the
parties have executed this Agreement as of the Effective Date.
City.• C1TY OF SAINT PAUL, a Minnesota municipal corporation
B
Norman B. Coleman
Its: Mayor
Date: 2000
By;
Peter Hames
Its: Director, Technology and Management Services
Date: _ _ , 2000
By:
Joseph Reid
Its: Director, Office of Financial Services
Date: __, 2000
� Approved as to form:
By:
Matthew J. Ptohl
Its: Assistant City Attorney
Date: 2000
Righaof-Wayand FacilityAgreement
Gty ofSaintPaul:: Metricom, Inc
Page 19 of 20
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Meiricom: METRICOM, INC., a Delawaze corporation
By:
(name typedJ
Its:
Date:
Attachment A
[Plan and Scale Drawing of "Radio')
Attachment B
[Form of Security Bondj
2000
Rrghtrof-Wayand Fan7ityAgeement
G"!y oFSaintParil:: Metrirorr�.Inc.
Page 20 of 20
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ATTACHMENT B
FORM OF SITRETY BOND
Bond Number:
SURETY BOND
KI30W ALL MEN BY TT�SE PRESENTS:
That METRICOM, INC., incorporated under the laws of the State of Delaware, as
Principal, and Insurance Company of the State of Pennsylvania, incorporated under the (aws of
the State of PennsySvania, as Surety, and authorized to execute 6onds and undertakings as sole
Surety, are held and firmly 6ound unto the City of Saint Paul, MN, as Obligee, in the sum of
Twenty Thousand Doilars ($20,000.00); for the payment thereof, well tnzly to be made, said
Principal and Surety bind themselves, their administrators, successors and assigns, jointly and
severally, firmly by these presents.
The condition ofthe foregoing obligation is such that:
WI�REAS, the above bounden Principal has entered into a certain agreement with the Obligee
for #he following: "Right-of-Way and Facility AgreemenY' (IiOW), the award of which said
ROW agreement was made to the Principal by the Obligee, on (date).
NOW THERERORE, ifPrincipal shall we11, tnify and faithfully perform its duties, all the
undertakings, covenants, terms, conditions, and provisions of said ROW agreement during the
original term thereof, and any extensions thereof which may be granted by the Obligee, with or
without notice to the Surety, and if Principal shali satisfy ai( ciaims and demands incurred under
such ROW agreement, and shail fully indemnify and save harmless Obligee from all costs and
damages which it may suffer by reason of failure to do so, and shail reimburse and repay Ob(igee
al! outlay and expenses which Obligee may incur in making good any default, then this
obligation shall be void; otherwise to remain in full force and effect.
PROVIDED, FURTHER, that said Surety, for value received, hereby stipulates and
agrees that no change, extension of time, alteration or addition to the terms of the ROW
agreement or to the work to be performed thereunder or the specifications accompanying the
same shall in any way affect Surety's obligation on this bond, and Surety does hereby waive
notice of any such change, extension of time, alteration or addition to the terms of the ROW
agreement or to the work or to the specifications.
PROVIDED, HOWEVER, this bond is issued subject to the following express
conditions;
Metricom BondForm
page &1 of1
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1. This bond shall be deemed continuous in form and shali remain in full force and effect
until terminated under Section 9("Termination") of said ROW agreement, after which all
liability ceases except as to any liability incurred or accrued prior to the date of such
cancellation, and except as expressly detailed below.
2. In the event that a discontinuance of Service or non-use of radios (as provided in Section
93 of said ROW agreement) or in the event of surrender or removal of the radios (as
provided in Section 9.2 of said ROW agreement), this bond shall be honored by Surety to
Obligee for Obligee's cost to remove all. radios from within the limits of Obligee's city
jurisdiction, provided that the bond is in full force and effect.
3. The aggregate liability of the Surety hereunder on all claims whatsoever shall not exceed
the penal sum of this bond in any event.
4. Surety reserves the right to withdraw as Surety from this bond, except as to any liability
incuned or accrued, and may do so upon giving the Obligee sixty (60) days advance
written notice.
SIGNED AND SEALED this
day of
2000.
PRINCIPAL
Metricom, Inc.
980 University Avenue
Los Gatos, CA 95032
Phone: 408-399-8200
By:
(Printed Name)
Signed:
(Signature)
Title:
SURET'i'
Insurance Company ofthe State ofPennsylvania
2 Rincon Center, 121 Spear Street �
San Francisco, CA 94105
Phone: 415-836-2979
By:
(Printed Name)
Signed:
(Signature)
Titie:
(Affix Corporate 5eals)
(Attach Acknowledgments of both Principal and Surety signatures)
Metricom BondForm
page &2 of2
o�������.
Council File # Op - G��..
Green Sheet # l'03 5 .'1R'
RESOLUTION
Presented By
Referred To
Committee: Date
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WHEREAS, the City of Saint Paul desires to provide its citizens, businesses, employees and visitors a new choice
of high-speed wireless Intemet access capability that does not require the use of a telephone line and which does
not require the use of cables or trenches in the City's rights-of-way; and
WI�REAS, Metricom, Inc., has already rolled out a high-speed wireless Intemet system in the San Francisco,
Seattle and Washington DC metropolitan azeas, and is currently rolling out this same system in the Twin Cities,
which system uses shoebox-sized radio transceivers that aze installed on City streetlights and utility poles; and
WHEREAS, although Metricom is authorized under Minnesota law to use local rights-of-way without having to
enter into a formal agreement with the ]ocal municipality, Metricom has nevertheless eleeted to voluntarily enter
into such agreements with local municipaliries in order to expedite the roll-out of its system; and
WHEREAS, Metricom has previously entered into agreements with forty-seven other local govemment units in the
Twin Ciries area, and has requested that Saint Paul likewise enter into such an agreement; and
WHEREAS, City staff has reviewed and negoriated the terms of an agreement that requires, among other things,
for Metricom to pay the City for all installation and registration perrnit fees, to make an annual payment to the City
of one percent (1%) of gross revenues for subscribers within the city, to pay the City $60.00 annually for each City-
owned pole on which a radio is attached, and to provide the City with 20 free subscriprions to the Intemet service;
now therefora,
BE TT TtESOLVED, that the proper City officials aze hereby authorized to execute and enter into an agreement
w'sth Metricom, as set forth and contained in "Right-of-Way and Facility Agreement," a copy of which agreement
was before the City Council and which is made a part hereof by reference. o�n��.�.�.��o.�N.w
!i�., j, .�.�il j,Li,r '�
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���'i/i i '
OF SAINT PAUL, MINNESOTA
Form Approved by City At orney
gy: � � • �p. a.f. 66
Rpproved by Mayor for Submission to
Counci�
By: � ��
Adopted by CounciZ: Date �o
Adoption Certified by Councs Secretary
DepaAmenuotfice/wuncii: Date Initiated Green Sheet Na. 103528
Technology & PvTanagemc,mt Services June 21, 2000 ��`
GoMact Person & Phone i aY e ���p�
Peter Hames, 266-8196 � l�, � p �� c;xycow�i
Must Be on Cou� AgdMa by (6ate) Assi9n 2 City Attomty ' • P. ._GO �City Clerk
N�y� Fioa�xial Sav Aic Finamiai SavfaaYA
June 2 8, 2 0 0 0 For �iM�wr (g' �) �- 2� -►. _ civil sav�ce conmission
Routing
Order
Total # of Signature
Atl Locations tor Signature)
Acfion Requested:
Authorization to execute and enter into an agreement with Metricom, Inc. as set forth in the "Right-of-Way and Facility
���H
RecommerWaGons: Approve (A) or Reject (R)
Planning Commission
C18 Committee
Civii Servite Commission
Personat Service Contracts Must Answer the Pollowing Quesfions:
t. Has this persoN(rtn ever worked under a contrad for this tlepa�tmeM7
Yes No
2. Has this person/firm ever been a city empbyee?
Yes No
3. Dces tfds personlfum passess a skill �ot nartna0.Y Passessed bY any curreM cily
employee? Yes No
Explain all yes answers on separate sheet and attach W green sheet
U�Uiak�g Pra6lem, lssue, OPportunity (Whu. What, When. Wf�ere, Why�:
Metricom provides a high-speed wireless Tntemet access capahility, through the use of wireless laptop modems, that does not
require the use of a telephone line and does not require the use of cables or trenches in the City's rights-of-way.
Advantages If Approved;
Saint Paul citizens, businesses, emp]oyees and visitors wiA have a way to use a wireless connection to the Internet. The City
will annually receive $60 for each City-owned gole on which a Metricom rndio transmitter is atiached: - In'addition, the City
will receive 20 free subscriptions to Metricom's service. �— "y `-
,.
, ...»
`� �
Disadvantages If Approved:
None.
�
Disadvantages if Not Approved:
Because Metricom is signing up all cities in the metropolitan area, if not approved, Saint Paul citizens, businesses, employees
and visitors will be isolated from a service which will exist elsewhere in the metropolitan azea.
�otal Amount ot Transaction: S
'unding Source:
CosURevenue eudgeted:
AMivify Numbec:
i�wnciat Infortnation: (Ezplai�)
bo -(e \�-
SAINT PAUL
Right-of-Way and Facility Agreement
m HLS RIGHT-OF-WAY AND FACILITY AGIZEEMENT (this "Agreemen�') is '
' 1' dated as of . 2000 (the "Effective Date'), and entered into ''
- by and between the CIT'Y OF SAINT PAUL, a Minnesota local government unit
(the "City"}, and METRICOM, INC., a Delaware corporation ("Metricom").
Recitals
A. Metricom owns, maintains, and operates, in accordance with regulations
promulgated by the Federal Communications Commission, a mobffe digital data
communicaiions radio network known as Ricochet�, utilizing Radios {as defined in
§ 1.10 below} and related equipment certified by the Federai Communications
Commission.
B. For purpose of operating Ricochet�, Mefricom wishes to locate, place, '.
attach, install, operate, and maintain Radios an the Public Right of Way (as defined in
§ 1.9 below) on Municipal Facilities, as well as on facilities owned by third parties i
therein.
C. Mefricom acknowledges that, notwithstanding any provision within this
Agreement to the contrary, it shall comply with any and all existing or future laws,
including but not limited to those regulating the City's public right of wap found in
Chapters 116 and 135 of flie City of St. Paul Legislative Code, before exercising atty
right under this Agreement Nothing herein shall constitute a pernussion or
authorization or waiver from the City of its night to reqwire such prior compliance by ;
Metricom. ;
Agreement
NOw, �hG�efOrA, for good and valnable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties a�ee to the follow3ng
covenants, terms, and condiiions, and that the above-referenced Recitals are hereby
incorporated:
Rightrof-Wayand FacilityAgreement
Ci[y of,S�intPauL: Metrimm, Inc.
Page 1 of 20
00 -C�3-
1 DEFINTTIONS. The following definitions shali apply generally to the provisions of this
Agreemen�
1.1 Adjusted Gross Revenues. "Adjusted Gross Revenues' means the gross
dollar amount received by Mefricom for its Services (as deiined in § 1.11
below) provided to subscribers with billing addresses in the City,
excludutg (i) any utility users tax, communications tax, or similar tax or
fee; (ii) local, state, or federal t�axes that have been billed to the subscribers
and separately stated on subscribers bills; and (iii) revenue uncollectible
from subscribers (i.e., bad debtsj with billing addresses in the City that
was previously included in Adjusted Gross Revenues.
1.2 C'ity. "City" means the City of SainE Paul.
1.3 Fee. ° Fee ` means any assessment, license, charge, fee, imposition, tax, or
levy of general appfication to entities doing business in the Ciiy lawfully
imposed by any governmental body (but excluding any utility users tax,
franchise fees, communications tax, or similar tax or fee).
1.4 Installation Date. "Installa6on Aate" shall mean the date that the first �
Radio is installed by Metricom pursuant to this Agreemenk
1.5 Laws. "Laws° means any and all statutes, constitutions, ordinances,
resolutions, regulaHons, judicial decisions, rules, tariffs, administrative
orders, certificates, orders, ar other requirements of the City or other
governmental agency having joint or several jurisdiction over the pariies
to this Agreement.
L6 Metricom. "Metricom' means Metricorn, Inc., a corporation duly
organized and exisiing under the laws of the State of Delaware, and its �,
lawful successors, assigns, and h�ansferees. �
1.7 MPUC: " MPLTC" means the Minnesota Public Utility Commission.
1.& MunicipalFacilrties. ° Municipal Pacilities" means City-owned street light
poles, lighting fixtures or electroliers, that are located within the Public
Ttight of Way and may refer to such facilities in the singular or plurai, as
appropriate to the context in which used. Municipal Facilihies does not
include any traffic signals, semaphores, or poles on which traffic signals or
semaphores are attached.
Right-of-Wayand FacilifyAgrcrment
Gty ofSaintPaul: • Mefrimm, Inc.
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1.9 Public Right of TNay. "Public Right of Wa�` means the space in, upon,
above, along, across, and over the public streets, roads, highways, lanes,
cartways, courts, ways, alleys, boulevards, sidewalks, bicycle lanes, and
places, including all public utility easements and public service easements
as the same now or may hereafter exist, that aze under the }urisdiction of
the City. This term shall not include county, state, or federal rights of way
or any property owned by any person or entity other than the City, except
as provided by applicable Laws or pursuant to an agreement between the
City and any such person or entity. If the City adjusts its boundaries
pursuant to Minn Stat, Chap. 414 through annexation, incorporation,
combination, detachment, or other means, this Agreement shall be
binding on the ent'rre area within the City's boundaries after the
adjustment
11Q Radio. "Radio' means the radio equipment, whether referred to singly or
collectively, and related appurtenances to be installed and operated by
Metricom hereunder, only as illustrated in the drawings (or with similar
damensions) attached to this Agreement as Attachment A, which is hereby
incorporated.
1.10.1 Rico�het. "RicocheP' means a mobile digital data communications radio
network utilizing Radios (as defined in § 1.10 above) and related equipment,
which operates in one or more of the following spectra of radio frequencies: 902-
928 MHz, 2305-2350 MHz or 5725-5850 MHz, as permitted by the Federal
Communications Commission.
1.11 Services. °Services' means the mobile di,gital communications services
provided through Ricocheifl by Metriwm, which services consist
principally of wireless Internet, e-mail and local area network access and
may include transmission of sound and video images; provided, however,
that "Services" shall not be construed, interpreted or applied to authorize
either real fime telecommnnications services (i�cluding telephone and
voice) or video or cable television communications services except as may
be considered standard Internet content
2 TERM. This Agreement shall be effective as of the Effective Date and shall extend far
a term of nine (9) years commencing on the Installafion Date, unless it is eazlier
terminated by either party in accordance with the provisions herein. The term of this
Righf-of-Wayand Faolity A�rement
Gty ofSaintPaul:: Metrico� Inc.
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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 ofiher of its intenfion naE to renew not less than one hundreci eighiy (180)
calendar days priar to commencement of the retevant renewal term
3 SCOPE OF AGREEMENT. Any and all rights expressly granted to Metricom under this
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 Public Right of Way exclusively or concurrenfly with any other
person or entifiy and shall be further subject to all deeds, easements, dedications,
conditions, covenants, restrictions, encumbrances, and claims of tifle of record which
may affect the Public Right of Way. Nothing in this Agreement shall be 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 ta the rights
granted under this Agreement shall be subject to the reasonable prior review and
approvat of the Cily.
3.1 Attachment to Municipal Facilities. The City hereby aixthorizes and
permits Metricom to enter upon the Pubtic 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@ and providing Services. In addition, subject to the
provisions of § 4.3 below, Metricom shall have the right to draw electricity
for the operaiaon af the Radios from the power source associated with
each such attachment to Municipal Facilihes. Metricom acknowledges,
however, that most of City's Municipal Facilities use "banked" photo-
electric cells for the supply of electricity and therefore will not be suitable
for the drawing of electricity or the attachment of Radios.
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 Public Right of Way and to attach,
instali, operate, maintain, remove, reattach, reinstall, relocate, and replace
such number of Radios in or on poles or other structures owned by public
utility companies ar other property owners located within the Public
Right of Way as may be permitted by the public utiUty company or
property owner, as the case may be, solely for the puzposes of operating
RicochetC�3 and providing Services. Upon request, Metricom shall furnish
to the City documentaiion of such permission from the individual utility
Rightof-Wayand FacilityAgteement
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or property owner responsible. City agrees to cooperate with Metricom,
at no cost or expense to City, in obtaining where necessary the consenis of ,
third-party owners of properiy located in the Public Right of W ay. ,
3.3 No Interference. Metricom in the performance and exercise of its rights �
and obligations under this Agreement shall not interfere in any manner I
with the existence and operation of any and all public and private rights'
of way, sanitary sewers, water in.ains, storm drains, gas mauvs, poles,
aeriai and underground electrical and telephone wires, electroliers, cable
television, and other information or communications, utility, or municipal
property or Municipal Facilities without the express prior written
approval of the City or owner or owners of the affected property or
properties, except as pernutted by applicable Laws or this Agreement.
City agrees to use reasonable efforts to require the inclusion of the same ar
a sunilar prohibition on interference as that stated above in all agreements
and franchises City may enter into after the Effective Date with other
information or communications providers and carriers.
3.3.1 Interference Resolution. Any actual or anticipated radio ''�
interference caused by either the presence of the Radios or the presence of l
any such other communications equipment or devices in the Public Right I
of Way shall be resoived by Metricom and any such other providers ''
without cost to City on the basis of the applicable rules, regulations,
praciices, and procedures of the FCC. City agrees to assist Metricom in the
resolution of any such interference dispute at Metricom s sole expense.
3.4 Compliance with Laws. Metricom shall comply with all applicable Laws
in the exercise and performance of its rights and obligations under this
Agreemenk The Right-of-Way Management Reimbursement provided for
in § 4.1 below shall be in lieu of all other City fees, with the exception of
any City permits such as registration and obstrucfion permit fee required
for the initial installation of the Radios or future radios. City shall ',
prornpfly respond to 2vletricom s fllings and shall otherwise cooperate
with Mehicom in facilitating the deployment of Ricochet� in the Pubiic
Right of W ay in a reasonable and timely manner.
3.5 Location and Installation. The locations of Metricom's Radios shall be
determined, subject to the reasonable prior review and approval of the
City, promptly afEer Metricom s review of available street light maps and
Right-of-Wayaotf FacilityAgreement
Gty ofSainl Paul :• MeMcom, Inc.
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prior to deployment of the Radios. Upon the completion of any cunent ar
future installation, Mefricom promptly shall furnish to the City an as-built
list showing the exact location of the Radios in the Public Right of Way.
4 CoMPE1JSaTiotv; FEES; UTtLtTY cxnRCES. Metricom shatl be solely responsibie for the ,
payment of all lawful Fees in connection with Metricom s per£ormance under this
AgreemenE, in accordance with the terms set forth below.
4.1 Right-of-Way Management Reimbursement. In order to reimburse City for
any right-of-way management costs it may incur, Metricom shall pay to
the City, on an annual basis, an amount equal to one percent (1%) of
Adjusted Gross Revenues (the "Right of-Way Management
Reimbursemen�'), which amount may be collected from subscribers of the
Services (excluding any City subscriptions authori2.ed under Section 4.5 of
this Agreement) with billing addresses in the City and remitted to City as
provided herein. The paxiies agree that such Right-of-Way Management
Reimbursement represents a fair estimate of the costs of continuing
management of the Public Right of Way and as a substitute for User Fees j
required by Chapter 116 and 135 of City of SaintPaul Legislative Code
utilized by Metricom and that such Right-of-Way Management
Reimbursement is not a franchise fee or payment for use of the Public Right
of Way. The Right of-Way Management Reimbursement shail be payable
for the period commencing upon the date that Services are first offered and
ending on filie date of termination of this Agreement, and shall be due on or
before the 45� day after the end of each calendar year or fraction thereof.
Within forty-five {45) days after the texminafion of this Agreement,
compensation shail be paid for the period elapsing since the end of the last
calendar year for which compensation has been paid. Metricom shall also
file a report (the "Compensation Report") with the City, by sending copies
to the individuals listed in § 8. The Compensation Report shall show the
Right-of-Way Management Reimbursement paid to the City, as well as all
Metricom revenues for the preceding year based upon Metricom s
services or operations within the Ciiy that made up Ad}usted Gross
Revenues. The Compensation Report shall also show any adjusiments as
provided for in this Agreement for bad debt [as defined in § 1.1{iii)}. In
the event there is a significant fluctuation in the annual amount af
compensation being remiited to the City, Metricom will, at the City's
request, meet and discuss with the City the cause or causes of such
fluctuations. Meiricom and the City mutually agree to provide reasonable
Righbof-Wayand FaciGtyAgreement
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documentation to assist in determining such cause or causes. The
Compensation Report shall be furnished to the City with each payment of
compensation required by this section, and shall be executed and attested to
by an authoiized officer of Metricom or his or her designee, verifying the
accuracy of the Compensation Report and amount of all fees, compensation,
or other payments under this Agreement The City agrees to hold in
confidence any non-public information in the Compensafion Report to the
fullest eatent �xrmitted by Law. If Metricom discovers any error in the
correct amount of compensation due, the City shall be paid within thirty
(30) days of discovery of the errar or detertnination of the correct amount '
Any overpayment to the City through error or otherwise shall be refiznded ',
ar offset against the next payment due. Acceptance by the City of any I
payment due under this section shall not be deemed to be a waiver by the
City of any breach of this 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. City may, at any time, at City's sole oplion, upon
ninety (90) days written noiice, require Meiricom to discontinue the Right-
of-Way Management Reimbursement compensation. Upon receiving such
notice Metricom shall, no laYer than ninety {40) days after receiving such
notice, cease making all compensation payments that would have been
payable after such ninety (90) day notice period. If City requires such a
discontinuation of Right of-Way Management Reimbursement
compensation, the City may then charge, on an annual basis, its actual
Right-of-Way Management costs (pursuant to Minnesota Statutes Sec.
237.162, Subd. 9 and Sec. 237163, Subd. 2(b)), that are incurred after the
expiration of the ninety (90} day period described above. Metricom shall
only be liable for such actual annuai Right of-Way management costs to
the extent such cosfis exceed the annual retail value of the service
subscriptions for wluch the City is eligible under Section 4.5 of this
Agreement.
4.11 Reduction of Right-of-Way Management Reimbursement by
Amount of Utility Users or Communications Tax.
Notwithstanding anything to the contrary in this Agreement, if the
Services are subject to a utility users tax, communications tax, or ',
other similar tax or fee which accrues to the City by operation of �
the Cii�s Municipal Code or other applicable law, then the amount
Rightrof-Wayand FacilityAgreement
City ofSaintPaul :� Metracom, Inc.
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of the Right of-Way Management Reimbursement shall be reduced
by the amount of the applicable utility users tax, communications
tax, or such other similar tax or fee.
Accounting Matters, Mefricom shall keep accurate books of account, in accardance
with Generally Accepted Accounting Principles (GAAP), at its principal office in Los
Gatos or such ofiher 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 boaks of account
relafive to the City at any time during regulaz business hours on thirty (30) days prior
written notice and may audit the books from time to time at the CitJ�s sole expense, but
in each case only to the extent necessary to confirm the accuracy of payments due under
§ 41 above. Alternatively, at Cit}�s option, Metricom will make available for inspection
by the City at Metricom's office Iocated closest to the City, upon thirfy (30) days prior
written notice, the relevant portions of ifs books and records as reasonably necessary to
confirm the accuracy of any payments due the City under this Agreement. The City
agrees to hold in confidence any non-public information it learns from Metricom to the
fullest extent permitted by Law. The City may request, and Mehricom will promptly
provide, to the individuals listed in Section 8, Metricom's most recent annual report
which shall contain a financial report from Metricom's independent auditors. The City
may also, at its optipn, not more than once a year, require that Metricom s compliance
with the terms and condilions of this Agreement, including, but not lixnited to, the
computation of any fees or payments, be verified by a certified public accountant or
comparably qnalified consultant at the sole expense of the Cify.
4.2 Annual Fee. As compensation for the use of Municipal Facilities,
Metricom shall pay to the City an annual fee (the "Annual Fee") in the
amount of Sixty Dollazs ($60.00) for the use of each Municipal Facility, if �
any, upon which a Radio has been installed pursuant to this Agreement.
Where light poles or other facilifies to be used by Metricom within the
Public Right of Way are owned by a utility, such annual fee shall be paid
to the appropriate utility and not to the City, The aggregate Axuival Fee
with respect to each year of the term shall be an amount equal to the
nixmber of Radios installed on Municipal Facilities during any part of the
preceding twelve (12) months multiplied by the Annual Fee, prorated as
appropriate, and shall be due and payable not later Ehan forty-five (45)
days after each anniversary of the InstaIlafiion Date. Cify represents and
Right-nf-Wayand FacitityAgreement
Gty of3aintPaul c� Metricom, Inc
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covenants that City owns all Municipal Facilities for the use of which it is
colleciing from Metricom the Annual Fee pursuant to this § 4.2.
4.2.1 CPI Ad}ustment. Effective commencing on the first anniversary of
the Installation Bate and continuing on each anniversary thereafter,
the Annual Fee with respect to the ensuing one-yeaz period shall be
increased by a percentage amount equal to the percentage increase,
if any, in the U.S_ Deparhnent of Labor, Bureau of Labor Statistics
Consumer Price Index (All Items, All Consumers, 1982-1984=100) ,
which occurred dvring the previous fiveyear period for the ,
Midwest Urban Region Consolidated Meiropolitan Statisfical Area.
4.3 Eleciricity Charges. Mefricom shall be solely responsible for the payment
of all electricai utility charges to the City or applicable utility company
based upon the Radios' usage of electricity and applicable tariffs.
Payments to the Cify shall be made in the event Metricom draws
eleciricity from a metered Municipal Facility.
4.4 Other Charges. Metricom shall be solely responsible for the payment of all
fees, expenses, costs or any other charges imposed or based upon
Metricom s perfarmance of this Agreement, including but not limited to:
Any real estate or personal taxes on equipment or property owned by
Metricom , general or special; Any public utility rates, dues, or charges of
any kind for utilities used by Metricom; Any fees, costs or expenses of
insurance; and any other utility, costs, expenses or applicable tariffs
resulting from the perfarmance of this Agreement. Metricom shall pay
any such charges in this section within thirty (30} days of notice of the '
same from the City.
4.5 Reimbursement of City`s Project Review Expenses. Metricom shall
reimburse the City at City's standard rates for reasonabie attorne�s fees
and other project review expenses relating to the preparation and review
of this Agreement, promptly upon receipt of itemized bills, paid invoices,
and other such documentation as Metr�icom shall reasonably require, and
in a total amount not to exceed Two Thousand Dollars ($2,000). The
reimbursement provided for in this § 4.5 shali not replace or excuse
Meh�icom from the payment of any applicable permit fee for work
undertaken pursuant to the initial instailafion of the Radios.
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4.6 Municipal Subscriber Progxam. City shall have the right throughout the I
term of this Agreement to receive up to the maximum number specified �,
below (based upon the Cit�s populafion) of free Ricocheit� basic service ',
subscriptions. The number of free subscriptions which the Cify may ���
receive shall be deternuned in accordance with the City's official �
population, as shown on t3ie latest available census data, as follows: (a} for '!
municipalities with a populaiion of less than 100,000, up to a maximum of
ten (10} free subscriptions; (b) for municipalities wifih a population of
between 100,000 and 249,DOQ up to a maximum of fifteen (15) free
subscrip6ons; (c} for municipalities with a population of beltveen 250,000
and 500,000, up to a ma;cimum of twenty (20) free subscriptions; and
(d) for municipalities of over 500,000, up to a maximum of twenty-five (25)
free subscriptions. City shall designate one person wha shall be
responsible for ordering and receiving any subscriptions. To take
advantage of this program, the designated individual should contact
Metricom`s Network Real Estate Deparhnent at the address stated in § 8
below City's right to use the subscriptions shall commence at the time
that Ricochet� service is commercially available in the City and shall
extend until the expiration of the term of this Agreement or through the
length of time that Radios are deployed in the Municipal Right of Way,
whichever is longer. City's use of the subscriptions shall be subject to the
standard RicochetU� terms and conditions of use. City understands attd
agrees that modems and equipment required to utilize the subscriptions
and any additional service subscriptions or service options the City may
desire may be obtained from an authorized retailer at market rates current
from time to time. City shall use all subscriptions provided pursuant to
this section solely for ifis own use and shall not be entifled to resell,
distribute, or otherwise perxnit the use of same by any other person,
excepting a local public entity that provides public service within the
corporate boundaries of the City (e.g., municipal schools, public safety, or
fire departrnents, etc.). The level of benefits and service provided to City
by Mefricom as "basic service" shall not be diminished ar reduced during
the term of this Agreement or renewal thereof or prior to its cancellation
or tertnination, as the case may be.
49 Most-Favored Municipality Clause. Should Metricom either before or'.
after the parties' execution and delivery of this Agreement enter into an '
agreement with another Minnesota municipality, which agreement j
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City ofSaintPaal:: Metricom, Inc.
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contains either (a) a higher Right of Way Management Reunhursement as
described in § 4.1 above, or {b) a higher Annual Fee as described in § 4.2
above or (c) a higher amount of Reimbursement of City's Project Review
Expenses as described in § 4.5 above, or (d) a higher or different municipal
subscriber program as described in § 4.6 above, or (e} any other more
favarable material terms , benefit or provision� City shall have the right to
require that Metricom modify this Agreement to incorporate the same or
substantially similaz superior benefits and such other terms. I
5 REMOVAL, RELOCATION OR DTSPLACEMENT oF RADios. Metricom understands and �
acknowledges that City may require Metricom to relocate one or more of its Radios, �
and Mefricom shall at City's direction relocate such Radios at Meiricom s sole cost and
expense, whenever Cify reasonably deterrnines that the relocation is needed for any of
the following purposes: (a} as part of the construction, compietion, repair, relocation, or
maintenance of a City project, a Municipal Faciliiy or a public right-of-way; (b) because
the Radio is interfering with or adversely affecting proper operation or maintenance of
City-owned light poles, traffic signals, or other Municipal Facilities, or any other
fixtures or facilities or uses of the public right-of-way; or (c) ta protect or preserve the
public health, welfare or safety. In any such case, City shall use reasonabie efforts to
assist Metricom in loeating a reasonably equivalent alternate location with na daty to
incur any expenses or cost to City. If Metricom shall fail to relocate any Radios as
requested by the City within a reasonable fime under the circumstances in accordance
with this Agreement, City shall be entitled to relocate the Radios at Meiricom's sole
cost and expense, without further notice to Metricom. If a reasonably equivalent
alternate location cannot be found, then City may remove the radio at Metricom s sole
cost and expense. To the extent the City has actual knowledge thereof, the City will
attempt promptly to inform Meiricom of the displacement or removal of any pole on
which any Radio is located.
5.1 Relocations at Metricom's Request. In the event Mefricom desires to
relocate any Radios from one Municipal Facility to another, Metricom
shall so advise City. City will use reasonable efforts to accomxnodate
Metricom by making another reasonably equivalent Municipal Facility
available for use in accordance with and subject to the terms and
conditions of this Agreement.
5.2 Damage to Public Kight of Way. Whenever the installations, removal or
relocafion of Radios is required or perntitted under this Agreement, and i
such installation, removal or relocation shall canse the Public Right of �
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"City ofSaintPaul:: Metdcotry Inc
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Way to be damaged, Metricom, at its sole cost and expense, shall
prompfly repair and return the Public Right of Way to a safe and
satisfactory condition in accordance with applicable Laws, normal wear
and tear excepted. If Meiricom does not repair the site as just described,
then the City sha11 have fihe opiion, upon fift�en (15) days' prior written
notice to Meiricom, to perform or cause to be performed such reasonable
and necessary work on behalf of Metricom and to charge Metricom for the
proposed costs to be incurred or the actual costs incurred by the City at
Cit�s standazd rates. Upon the receipt of a demand for payment by the
City, Metricom shall prompfly 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 clauns, demands, losses, damages, liabilities, fines, charges, penalties, i
administrative and judicial proceedings and arders, judgements, and all costs and i
expenses incurred in connection therewith, including reasonable attorney's fees and'!
costs of defense (collectively, the "Losses') direcfly or proximately resulfing from �'
Metricom's activities undertaken pursuant to this 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 The foregoing notwithstanding,
Metricom sha11 defend and indemnify the City, and its officers and employees, even in
the case of negligence, unless the allegations allege {a) independent negligence on the
part of the City, its officers and employees or (b) a wrongful act or omission on the part
of the City or its officers or employees. Meiricom shall also defend and indemnify the
City, its officers and empioyees, even in the case of negligence, if the allegations are
based on the City's or its officers or employees' negligence or otherwise wrongful act
or omission in issuing a permiY to Metricom or approving this Agreement, or in failing
to properly or adequately inspect ar enforce compliance with the terms, conditions or
purpose of any permit issued to Metricom.
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,
c�amage, or injury to any Radio or any loss or degradation of the Services
as a result of Cit�s maintenance of Municipal Facilifies or the failure to
supply electricity or any event or occunence which is bevond the
reasonable mntrol of the City or on account of City's exercise of its
regulatory or police powers.
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6.2 Limitation of City's Liability. The City shall be liable only far the cost of
repair to damaged Radios arising from the negligence or will£ul
misconduct of City, its employees, agents, or contractors.
7 INSURANCE. Metricom shall obtain and maintain at all times during the term of this
Agreement Commercial General Liability insurance and Commercial Automobile
Liability insurance protecting Meiricom 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.
The Commercial General Liability insurance policy shall name the City, its council
rnembers, officers, and employees as additional insureds as respects any covered
liability arising out of Mefricom's performance of work under this Agreement.
Coverage shall be in an occurrence form and in accordance with the limits and
provisions specified herein. Claims-made policies are not acceptable. Such insurance
shall not be canceled, nor shall the occurrence or aggregate limits set farth above be
reduced, until the City has received at least thirty (30) days' advance written notice of
such cancellation or change. Meiricom shall be responsible for notifying the City of
such change or cancellation. Prior to any five(5ryear renewal term, pursuant to Section I
2 of this Agreernent, the City may request and the parties shall bargain in good faith to '
increase the above minimum insurance amounts, if such an increase is warranted by ,
industry standards or specific identified risk. Such increase, if any, shall not be �
effeciive uniil the commencement of such renewal term.
7.1 Filing of Certificates and Endorsements. Prior to the commencement of
any work pursuant to this Agreement, Metricom shall file with the City
the required original certificate(s) of insurance with endorsements, which
shall seate the foliowing:
(a) the policy number, name of insurance company; name and
address of the agent or authorized representative; name and ,
address of insured; project name; policy expiration date; and '
specific coverage amounts; i
(b) that the City shall receive thirty (30} days prior notice oF
cancellation;
(c) that Metricom s Commercial General Liability insurance policy
is primary as respects any other valid or collectible insurance that
the City may possess, including any self-insured retentions the City
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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; and
(d)that Mefricom s Commercial General Liability insurance policy
waives any right of recovery the insurance company may have
against the City.
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 Agreement statutory workers
compensation and employefs liability insurance in an amount not less
than One Million Dollars ($1,000,000) and shati 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 Minnesota and shall carry a''
minimum rating assigned by A.M. Best Br Company's Key Kating Guide
of "A" Overall and a Financial Size Category of "X" (i.e., a size of
$500,000,000 to $750,000,000 based on capital, surplus, and conditional �
reserves). Insurance policies and certificabes issued by non-admitted
insurance companies are not acceptable.
7.4 Severability of Interest Any dedixctibles or self-insured retentions must
be stated on the certificate(s) of insurance, which shail be sent to and
approved by the City. "Severability of interest" or "separation of
insureds' dauses shali be made a part of the Commercial General
Liability and Commerciai Automobile Liability policies. �,
8 NOTICFS. All notices which shall or may be given pursuant to this Agreement shall �
be in writing and delivered personaIly or transmitted (a) thxough 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 iransmission, 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:
Rrght-ot-Wayand FacilityA
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if to the Gty.•
CTTY OF SAINT PAiTL
Attn: Director of Technology and Management Services
290 City Hall,15 West Kellogg Boulevard
Saint Paul, MN 55102
with a copy to.
CITYOFSAINTPAUL
Attn: City Attorney
400 City Ha11,15 West Kellogg Boulevard
St Paul, MN 55102
rf to Metn'com:
M�icoM, INC.
Attn: Network Real Estate
980 ITniversity 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, ar the next business 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 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-fsve
(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 faiis to commence such cure within
forty-five (45) days or fails thereafter diligenUy ta prosecute such cure to completion),
provided that the grace period for any monetazy default shall be ten (10) days from
receipt of notice. Except as expressly provided herein, the rights granted under this
Agreement are irrevocable during the term.
9.1 Bond or Other Securiiy. Prior to the commencement of any work under
this Agreement, Metricom shall ftxrnish or cause to be fiirtushed to City a
Rightrof-Wap and FacrlityA�ement
Gty ofSamtPaul:: Metzico�ry Inc.
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good and sufficient bond, substanfially in the form attached hereto as
Attachment B entifled Surety Bond, in the amount of Tweniy Thonsand
DoIlars ($20,000), or such other comparable security insfrument as may be
approved by the City's attorney or risk manager, securing the faithful
perforsnance by Metricom of all of the work, consiruction, instaIlation,
and removals required to be performed by Meiricom under this Use
Agreement within the time periods set forth hereunder.
9.2 Surrender and Removal. Upon termination of this Agreement for any ,
reason, or expiration of the initiai term or any renewal term of this '
Agreement, Meiricom shall remove any or all of its Radios and anq other
equipment from the City`s Public Right of-Way and Municipal Facilities
within sixty (60) days and shall quit peacefully and surrender possession i
of the Murucipal Facilities or Pnblic Right-of-Way, and shall repair any
damage to the Public Right-of-Way or Municipai Facilities caused by such
equipment or Radios, normal wear and tear excepted, all at Metricom s i
own cost and expense. �
9.3 Discontinuation of Service. In the event that Metricom elects to
discontinue its Services in the City or any Radio sub}ect to this Agreement
is not used to provlde Services, for a period of six {6} months or mare,
Metriwm prompfly shall notify the City, and the City, at its option, may
require Metricom promptly to remove the associated Radio(s) at
Metricom's sole cost and expense or deciicate the same to the City. If
Metricom shall fail to prompily notify the City or remove the Radios I
within 15 days as required by the City, the City shall be entifled to remove '
the Radios at Metricam s sole cost and expense. Meiricom shall execute I
such documents of tifle as will convey all right, tifle and interest in such
Radios, but in no other Metricom properly, intellectual ar otherwise, to
the City. In addition, Metricom s election to discontinue its 5ervices shall
constitute a material breach and ground for City to ternunate tkus
Agreement. In the event of any such non-use of a Radio(s), City may
exercise any rights it has at law or in equity, including but not limited to
declaring the Radio(s) to be a nuisance and abating Yhe nuisance.
10. ASSIGNMENT. This Agreernent 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, , or financially viable affiliate
Rightrof-Wayand FacilityAgreemenf
Gty olSaintPaul: � Metricouy ]nc.
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' of Metricom or to any successor-in-interest or entity acquiring all or substantiaIIy all of
Metricom s outstanding voting stock ar assets shall not be deemed an assignment for
the purposes of this Agreement, but Metricom shall notify City of any such event within
sixty (60) days.
11. MLSCELLANEOUS PROVISIONS. The provisions which follow shall apply generally to
the obligations of the parties under this Agreement
11.1 Nonexclusive Use. Metricom understands that tMs Agreement does not
provide Metricom with exclusive use of the Public Right of Wap or any
Municipai Facility and that Ciiy shall have the right to permit other users of the
pixblic right-of-way, including City itself, to install equipment, facilities or
devices in or to use the Public Right of Way or City's Municipal Facilities. City
agrees to advise other providers of similar communicatians services of the ;
presence or planned deployment of the Radios in the Fublic Right of Wap',
and jor on Municipal Facilities.
11.2 Waiver of Breach. The waiver by either party of any breach or violation of '
any provision of this 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 Agreemen�
11.3 Severability ot Provisions. If any one or more of the provisions of this
Agreement shall be held by court of competent jurisdiction in a final judicial
action to be void, voidable, or unenfarceable, such provision(s) shall be deemed
severable from the remaining provisions of Ehis Agreement and shall not affect
the legality, validity, or consiitutionality of the remaining portions of this
Agreement. Notwithstanding the foregoing, the parties agree that if a court or
administrative agency of competent jurisdiction should declare a provision(s) of
Section 4 of this Agreement invalid, then the parties shall each be obligated to
negotiate in good faith to amend Secfion 4 of this Agreement and if, after one
hundred and eighty (180) days from the commencement of negotiations ar such
extension thereof that may be agreed by the parties, the parties are unable to
reach agreement on amendments hereto, then this Agreement may be terminated
by either paziy.
11.4 Contacting Metricom. Metricom shall be available to the staff employees of
any City depariment having }urisdiction over Metricom s activities twenty-four
(24) hours a day, seven {'� days a week, regarding problems or complaints
resulfing from the attachment, installation, operation, maintenance, or removal
Right-of-Wayand FacilityAgmement
City of�intPaul:: Metricom, Inc.
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of the Radios. The City may contact by telephone the network control center ,
operator at telephone number (800) $73-3468 regarding such prohlems or'
complaints. ;
11.5 Governing Law; Jurisdiction. This Agreement shall be governed and
consfrued by and in accordance with the laws of the State of Minnesota, without
reference to its conflicts of law principles. If suit is brought by a party to this
Agreement, the parties agree that triai of such action shall be vested exclusively
in the state courts of Minnesota, County of Ramsey, or in the United States
Disfrict Court for the District of Minnesola.
11.6 Attorneys' Fees. Should any dispute arising out of this Agreement lead to
litigation, the prevailing party shall be entifled to recover its costs of suit up to an
amount of Five Thousand Dollars ($5,000.00), inciuding (without limitation)
reasonable attorneys fees.
119 Consent Criteria. In any case where the approval or consent ot one pariy
hereto is required, requested or otherwise to be given under this Agreement,
such party shall not unreasonably delay, condition, or withhold its approval or
consenk
11.8 Representations and Warranties. Each of the parties to this Agreement
represents and warrants that 9t has the full right, power, legal capacity, and
authority to enter into and perform the parkies' respective obligations hereunder
and that such obfigations 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 § 3.2 above.
1L9 Amendment of Agreement. This A�eement may not be amended except
pursuant to a written instrument signed by both parties.
1110 Entire Agreement. This Agreement contains the entire understanding
between the parties with respect to the subject matter herein. There are no
representations, agreemenls, or nnderstandings (whether aral or written)
between or among the parties relaiing to the subject matter of this Agreement
which are not fully expressed herein.
11.11 Conflicts. Any conflict betcveen the provisions of this AgreemenE and any
other present or future lawful exercise of the City's regulatory or police powers
shall be resolved in favor of the latter.
Right-of-Wayand FacitityAgzeement
Gty ofSaintPavl c MeMcom, Inc.
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IIl WitZ10SS whereof and in order to bind themselves legally to the
terms and conditions of this Agreement, the duly authorized representatives of the
parties have executed this Agreement as of the Effective Date.
City.• C1TY OF SAINT PAUL, a Minnesota municipal corporation
B
Norman B. Coleman
Its: Mayor
Date: 2000
By;
Peter Hames
Its: Director, Technology and Management Services
Date: _ _ , 2000
By:
Joseph Reid
Its: Director, Office of Financial Services
Date: __, 2000
� Approved as to form:
By:
Matthew J. Ptohl
Its: Assistant City Attorney
Date: 2000
Righaof-Wayand FacilityAgreement
Gty ofSaintPaul:: Metricom, Inc
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Meiricom: METRICOM, INC., a Delawaze corporation
By:
(name typedJ
Its:
Date:
Attachment A
[Plan and Scale Drawing of "Radio')
Attachment B
[Form of Security Bondj
2000
Rrghtrof-Wayand Fan7ityAgeement
G"!y oFSaintParil:: Metrirorr�.Inc.
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ATTACHMENT B
FORM OF SITRETY BOND
Bond Number:
SURETY BOND
KI30W ALL MEN BY TT�SE PRESENTS:
That METRICOM, INC., incorporated under the laws of the State of Delaware, as
Principal, and Insurance Company of the State of Pennsylvania, incorporated under the (aws of
the State of PennsySvania, as Surety, and authorized to execute 6onds and undertakings as sole
Surety, are held and firmly 6ound unto the City of Saint Paul, MN, as Obligee, in the sum of
Twenty Thousand Doilars ($20,000.00); for the payment thereof, well tnzly to be made, said
Principal and Surety bind themselves, their administrators, successors and assigns, jointly and
severally, firmly by these presents.
The condition ofthe foregoing obligation is such that:
WI�REAS, the above bounden Principal has entered into a certain agreement with the Obligee
for #he following: "Right-of-Way and Facility AgreemenY' (IiOW), the award of which said
ROW agreement was made to the Principal by the Obligee, on (date).
NOW THERERORE, ifPrincipal shall we11, tnify and faithfully perform its duties, all the
undertakings, covenants, terms, conditions, and provisions of said ROW agreement during the
original term thereof, and any extensions thereof which may be granted by the Obligee, with or
without notice to the Surety, and if Principal shali satisfy ai( ciaims and demands incurred under
such ROW agreement, and shail fully indemnify and save harmless Obligee from all costs and
damages which it may suffer by reason of failure to do so, and shail reimburse and repay Ob(igee
al! outlay and expenses which Obligee may incur in making good any default, then this
obligation shall be void; otherwise to remain in full force and effect.
PROVIDED, FURTHER, that said Surety, for value received, hereby stipulates and
agrees that no change, extension of time, alteration or addition to the terms of the ROW
agreement or to the work to be performed thereunder or the specifications accompanying the
same shall in any way affect Surety's obligation on this bond, and Surety does hereby waive
notice of any such change, extension of time, alteration or addition to the terms of the ROW
agreement or to the work or to the specifications.
PROVIDED, HOWEVER, this bond is issued subject to the following express
conditions;
Metricom BondForm
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1. This bond shall be deemed continuous in form and shali remain in full force and effect
until terminated under Section 9("Termination") of said ROW agreement, after which all
liability ceases except as to any liability incurred or accrued prior to the date of such
cancellation, and except as expressly detailed below.
2. In the event that a discontinuance of Service or non-use of radios (as provided in Section
93 of said ROW agreement) or in the event of surrender or removal of the radios (as
provided in Section 9.2 of said ROW agreement), this bond shall be honored by Surety to
Obligee for Obligee's cost to remove all. radios from within the limits of Obligee's city
jurisdiction, provided that the bond is in full force and effect.
3. The aggregate liability of the Surety hereunder on all claims whatsoever shall not exceed
the penal sum of this bond in any event.
4. Surety reserves the right to withdraw as Surety from this bond, except as to any liability
incuned or accrued, and may do so upon giving the Obligee sixty (60) days advance
written notice.
SIGNED AND SEALED this
day of
2000.
PRINCIPAL
Metricom, Inc.
980 University Avenue
Los Gatos, CA 95032
Phone: 408-399-8200
By:
(Printed Name)
Signed:
(Signature)
Title:
SURET'i'
Insurance Company ofthe State ofPennsylvania
2 Rincon Center, 121 Spear Street �
San Francisco, CA 94105
Phone: 415-836-2979
By:
(Printed Name)
Signed:
(Signature)
Titie:
(Affix Corporate 5eals)
(Attach Acknowledgments of both Principal and Surety signatures)
Metricom BondForm
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