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HomeMy WebLinkAboutMarch 16, 2000 (2)Please Note: Our plrmre numbers have changed. The new general number is 706-3600. MEETING OE THE TF,LECOMMUNICATIONS COMMISSION 7:00 PM, THURSDAY, MARCH I6, 2000 CITY HALL CONI'ERENCE ROOM Please contact Shelley at 706-3614 if you are enable to attend. AGENDA: 1. Call to Order 2. Roll Call 3. Approval of the Minutes of the Meeting of February 17,2000 4. Old Business a. Channel Check b. Correspondence Log and Company Follow Up on Complaints- c. Merger Update Brochures for Feb. 2000 d. Other Old Business 5. New Business a. Presentation on Metrieom's Richochet System and Use of Right of Way Agreement b. MediaOne's Notification to Customers to Convert from Old Packages to New Packages c. 1999 Annual Report d. Subscriber Survey e. Other New Business 6. Reports a. Report of Commissioners Assigned to Access Channels: Educational Access--Dennis 5troik; Library Access-Ruth Graham; Religious Access- ;Government Access--Ken Henke; Public Access--Reuben Ruen b. Report of MediaOne- February 2000 Reports --Subscriber Statistics --Telephone Statistics --Programming Statistics --Programs Produced --Installation and Service Activity Report --Current Channel Line Up and Service Charges c. Report of the Cable Attorney d. Report of the Special Projects Coordinator 7. Adjournment Attachments THE MINUTES OF THE TELECOMMUNICATIONS COMMISSION FROM THURSDAY, FEBRUARY 17, 2000 The meeting was called to order at 7:03 p.m. by Dennis Stroik, Chairperson. ROLL CALL: Commission Members: Dennis Sh•oik, Ken Henkc, Robert Buboltz, Dan Swee, and Reuben Ruen City Representative: Cable TV Representative: Legal Counsel: APPROVAL OP' MINUTES Linda Magee Kathi Donnelly-Cohen Steve Guzzetta Motion by Ken Henke , seconded by Bob Buboltz, to approve the minutes from the meeting of October 21, 1999. All ayes, OLD BUSINESS A. Channel Check Everything checked outok. B. Correspondence Log and Complaint Follow Up. Complaint #128-Lawrence Wodziak-The cable box near street was open. The company sent someone out to secure it. Complaint #129-Leon Osbaldo-He was charged twice for installation of service by mistake. Kathi sent him a letter to inform him he would be credited $50 for the installation charges. Complaint #130-Andy Gerda-Complained that he had no cable service on 12/22/99. Kathi reported his cable service was out less than one hour, the problem was fixed, and he was credited for the interruption in his service. Complaint #131-Tammy Peterson-Was told the city was responsible for recent increase in rates. Kathi was unable to respond to customer due to no address or phone number listed on complaint form. She stated customer service reps are not indicating that cities are raising rates. She is unable to follow up on this due to limited information. Complaint #132-Douglas Widstrom-Complained of another rate increase making cable service unaffordable. They do not consider the cable service and programming to be a "tremendous value". Kathi explained in a letter that system upgrades have been made to provide additional programming and services. These upgrades were necessary to provide customers with the variety of services they want for today's constantly advancing technology. She also explained it is less expensive to upgrade everyone's services than to provide channel by channel service to individual households, At this time it is not technically or economically feasible to do this. Reuben pointed out that Dish Network is offering ala carte service. However, he doesn't know if there is a minimum service you have to subscribe to first in order to receive additional programming ala carte. He will check into this. Complaint #133-Craig Larson-He has had intermittent reception problems for several months. When he called for service, he was told it would be a weak. A call was made to his home where they put in a new drop and balanced the distribution amps. He is now satisfied. TELECOMMUNICATIONS COMMISSION MINUTES OF FEBRUARY 17, 2000 PAGE 2 Complaint #134-Darlene Buboltz-Moved to a new address and had cable service installed. The price was not the same as what she had previously paid. There is some confusion regarding her bill due to installation fees, services were changed (her previous package was grandfathered in until a change was made), a rate increase effective Jan, 151, and no payments being received on this account. Kathi sent her a letter and a copy of her account history explaining the current charges due MediaOne. Kathi reported that letters are going out to people on old packages who have been grandfathered in until now. 80 different letters have been prepared due to three company mergers that have left quite a few people in old service packages. They will have to choose a package currently being offered so billing of the services can be more consistent. Complaint #135-Mae Lyons-She called wanting Universal Service. She has had Universal service since 1998. She also has had customer education regarding this service. However, she was not happy with her reception, so she wanted it disconnected. When the service tech went out there, reception was good so she still has the service. C. Notification of Rate Refund Notification of the FCC Ruling on an old CPST rate complaint was sent to the city on October 26, 1999. A copy of the letter was enclosed in the agenda packet. Refunds of $1,2G for Preferred tier subscribers were made in November. D. Channel Line Up Changes Effective December 1, 1999 The City received a letter dated October 26, 1999, notifying us of some changes to the channel line up. Notification and new channel line up cards were also sent to subscribers. E. Merger Update Brochures for October 99, November 99, and December 99 Brochures were sent to keep everyone aware of the benefits of the planned merger between MediaOne and AT & T. Copies of these brochures are enclosed in the agenda packets for the commissioners to review. The merger should be finalized by the end of March. Other Old Business *Linda reported the web site should be up and running by March 15"'. The address will be www.ci.columbia- heights.mn,us Net Link was the company chosen to assist us in setting up the page. *Kathi reported that digital service will be added this summer. This will add approximately 200 channels. Subscribers will be able to purchase these as desired. *There was a discussion regarding the Annual Report that is due March 31, 2000. The company had requested a variance be made in regards to the Annual Report and that it, along with the subscriber survey, no longer be a requirement. Linda reported that the City has decided that the variance will not be granted. The City Manager will be sending a formal letter stating that we still expect an Annual Report be submitted with the subscriber survey included, and that we will extend the time frame to May 31, 2000, for this to be completed. The commission members and city staff felt that although information contained in the annual report is available at any time, upon request, the annual report reflects our request. Moreover, there are a number of pertinent questions included in the survey regarding programming and customer service that should be reviewed on an annual basis. It was noted that this may not be the best way to get information from subscribers, but for now it is feedback of some sort, which provides useful information on a variety of issues, including customer satisfaction with the service and company's performance. TELECOMMUNICATIONS COMMISSION MINUTES OF FEBRUARY 17, 2000 PAGE3 NEW BUSINESS A. Notice of Rates for Programming Services and Equipment Effective January, 2000 Notice of rates for programming services and equipment effective January I, 2000, were enclosed in the agenda packets. It was noted that the rate for basic service went down, and the rate for preferred service went up. It was noted that the city received numerous calls regarding the latest increase in rates. Subscribers that called feel cable service is not affordable any longer and that because there is no real competition out there, they are being over charged for the product. B. MediaOne offers Digital Telephone Service Beginning in December, 1999, MediaOne now offers digital telephone services including 15 popular calling features. Detailed information and pricing was enclosed in the agenda packet for review. C. Receipt of 4°i Quarter Franchise Fee A copy of the franchise fees of $27,447.16 for 4"' quarter 1999 were enclosed in the packets. There was an adjustment made to the 4°i quarter check due to an overpayment from 3'" quarter. Due to a number of corrections, adjustments, and irregularities noted by a number of franchises, it was recommended we perform an audit on the franchise fees. These fees have not been audited since 1990. Bernick and Lifson (our attorneys) have entered into an agreement on our behalf with Aspund & Skokan to perform the audit for the year 1999. This audit should begin soon. As other cities and commissions served by MediaOne will be participating, the costs will be shared. D. Notice of Semi Annual Proof of Performance Testing in February Notice was given January 10, 2000, of the semi-annual proof of performance testing that will be done in February. Subscribers may experience 30 seconds of interrupted service due to the testing. E. Other New Business *Linda reported that there will be two openings on the commission, so if anyone knows of an interested party, have them contact the Deputy City Clerk for an application. Ruth Graham does not wish to be re-appointed, and Julianne Wyckoff (Council Representative) will become anon-voting Council Liaison to the Commission, due to an Ordinance change recently passed by the City Council. *Linda reported that the city council recently passed a moratorium on Antennas being constructed in Columbia Heights. This moratorium was established to allow the Planning and Zoning Commission to establish a policy regarding placement of towers and antennas in our city. Ken Henke felt strongly that the Telecommunications Commission should be reviewing these requests in addition to the P & Z Commission. Once a policy is established, the plan will be submitted to the Telecommunications Commission for review. Steve cautioned the commission on the legal ramiEcations of denying placement of these antennas. 47 U.S.C. § 332 (c) (7) addresses this matter and the limitations cities have. Linda stated that it may be necessary to review exactly what the role of the Telecommunications Commission is. What areas fall into the responsibility of this commission versus the responsibiiities of other commissions. *Reuben asked for information on the infra red cameras that were purchased by the Fire Department. He is concerned with the radio frequency that is used to transmit the picture to a off site display monitor. Has the city checked into the licensing of the radio frequency for this equipment. He was interested in a demonstration. Linda indicated that it was demonstrated at a recent council meeting. He should contact Jean Kuehn to view the tape, if interested. TELECOMMUNICATIONS COMMISSION MINUTES OF FEBRUARY 17, 2000 PAGE4 *Linda passed out a request from School District #13 for funding equipment purchases of $25,693. She reported that in 1989 we provided the school district with $8,500 for equipment, and $1,950 for production of tapes of Biology classes, and $1,000 to develop curriculum for K-4 grades. In 1990 grant guidelines were established which provided grants for production expenses, but not for equipment. Dennis reported that Kathy Kelly, the new Director of Curriculum at the High School, is heading up this request. It seems she would like to start a video production class that would give hands on experience to students using the latest in digital technology. This production/editing equipment is far superior to that being used by the city at the cable studio now. The commission members had the following concerns regarding the request: -The school could be using the equipment at the cable studio, where production and editing is done now for the city. This facility also has two personnel assigned for this very task. The city has not purchased editing equipment for its own productions, as it would be a duplication. Maybe the equipment at the studio should be upgraded instead, so all interested parties could be using it. -The only thing the school uses its access channel for now is communications done on the character generator and taped re-broadcasts of the school board meetings. They have not produced any programs thus far, for broadcast on the educational access channel, and the studio has been available for their use all along. -With HDTV becoming the new technology during the next couple of years, it's possible this digital equipment may be obsolete within a few years. Technology is changing very rapidly to invest this kind of money in equipment to be used by one entity. -Where is the school district funds and support for adding such a studio to the high school? What exactly are the plans for this equipment? What other funds have been applied for? Kathi Donnelly-Cohen said the district could have applied for a COOL Grant, but did not. Information was distributed by MediaOne to all the area schools. This is an annual grant that is applied for in the fall and was just awarded for this year to Coon Rapids Schools in the amount of $10,000. It was also noted that there is School and Universal Libraries Grant monies available. Kathi said she could provide more information on these programs if Ms. Kelly would like it. Dennis wanted to know what the intended use of the PEG fees are. He thought it was to support programming on all the access channels. He felt that some of the funds received should be distributed to promote programming on access channels other than just the government access. Linda responded that funds have been given out of franchise fees received to promote programming to the school district for the education access channel, the Library has received money to produce programming, and monies have been donated to Metro Cable Network, the Public/Regional Access channel. Monies have also been used to create the web site for the city, for Internet access, and putting government records on laser fische to make them more accessible to the public. It was the staff's feeling that they be informed of other funding options and what is available at the cable studio for their use to accomplish the goals they seem to have in mind. Motion by Ken, seconded by Bob to not provide funding for their request for equipment, and to provide details on grants that should be applied for and to encourage the use of the current cable equipment and studio facilities. Ayes-Henke, Ruen, Swee, Buboltz. Nay-Stroik. TELECOMMUNICATIONS COMMISSION MINUTES OF FEBRUARY 17, 2000 PAGE 5 REPORTS A. Report of Commissioners Dennis thanked the commission for considering and discussing the School District's request for equipment funding. The other commissioners had nothing to report. B. Report of MediaOne- Kathi noted the technical report categories and terminology were included in the agenda packets. These terms are used when filling out service reports detailing how the problems were fixed. She then reviewed the reports from October 99, November 99, December 99, and January 2000, C. Report of the Cable Attorney Linda passed out a legislative update regarding the "Kelley Bill" and others that have been offered recently for consideration. Steve provided a verbal update on such legislation, These bills could affect the city's receipt and control of franchise fees and the number of channels that would be dedicated for access by the cable service providers. Hopefully, these bills will not be passed. MACTA is encouraging cities to contact their legislators to express their opposition of these bills. Metricom has circulated an agreement to communities regarding a mini antenna system they are trying to establish. There are some legal concerns that Bernick and Lifson have addressed for some of their other clients. If we are contacted, the city should contact Bernick and Lifson for their recommendations to update the agreement. Bernick and Lifson is still working with MediaOne concerning their Trade Secret Information. They are close to an agreement, and Steve will keep us informed. D. Report of the Assistant to the City Manager Linda had nothing further to report. Motion by Ken Henke, seconded by Bob Buboltz, to adjourn the meeting at 9:06 prn. Alt ayes. Respectfully submitted, Shelley Hanson Secretary 0 ~~^ This is Broadbazul. This is the way. Legislative Forecast LEGISLATORE LOOKS AT TIONS REFORM Judging by the number of bills already drafted and circulating the halls of the State Capitol, the 2000 Minnesota Legislature is expected to consider ma- jor reform of the way telecommunications and ca- ble companies are regulated. Even Gov. Jesse Ventura is a proponent of some sort of serious re- form as a means to accelerate technological ad- vances statewide in telecommunications. "We don't want a state of haves and have nots," the gov- ernor stated at a recent Capitol hearing on the issue. While few would disagree with the Governor, there will be much discussion about what action the Leg- islature should take to accelerate investment in telecommunications in Minnesota. AT&T and Me- diaOne, leaders that have been investing to bring advanced telecommunications services to Minneso- tans, will be right in the middle of the legislative debate. Some of the issues that will be debated at the Capi- tol this session include: -How to increase local telephone competition and telecommunications investment in Minnesota. -Whether local communities' authority to regulate cable companies should be transferred to the state. - Whether to create forced access regulations that would require cable providers that have invested in new broadband networks to allow competitors automatic access to their infrastructure. - Whether to deregulate the local phone monopo- lies before competition for their services has fully developed - 97 percent of residents still have only one choice for local telephone service. CoruinneAoir Ure Gack MERGER INFORMATION CENTERS: ~`°' February 2000 VV VVVJ.i Ift CIlifl r*l r' ..l l-1..4 (.1 it REGION APPROVES MERGER! A major milestone has been reached: All 89 com- munities MediaOne serves in Minnesota and west- ern Wisconsin have approved the transfer of Me- diaOne's cable franchises to AT&T. The Minne- sota Public Utilities Commission also has approved the transfer, whicl-i means all necessary state and local regulatory bodies in the Twin Cities area have signed off on the merger. "These local approvals pave the way for MediaOne customers in the Twin Cities area to experience the benefits of the telecommunications revolution that is sweeping the country," MediaOne vice president and general manager Jeff Hackman said. "Both AT&T and MediaOne are excited to complete the network upgrade and deliver the advanced products that can meet our customer's total information, en- tertainment and communication needs." The local community approvals were all received without any forced access regulatory burdens. Forced access regulations would require cable companies that have invested much time and effort into creating privately financed networks to share them with competitors providing Internet access. Forced access would create agovernment- mandated free-ride for these competitors. AT&T and MediaOne instead support consumers' ability to access whatever Internet content they wish, free of govermnent regulation. "These municipalities have demonstrated their foresight to create an environment conducive to in- vestment and competition, especially for local tele- phone service," said Charles Ward, AT&T vice president of government affairs. AT&T and MediaOne expect to complete the merger in the first half of the year. Federal approv- als are also required for the merger to be finalized. AT&T • 901 MARQUETTE AVENUE SOUTH, SUITE 900 • MINNEAPOLIS, MN 55402 M EDIAONE 10 RIVER PARK PLAZA SAINT PAUL, MN 55107 Mayor: Councilroerobers: CITY OF COLUMBIA HEIGHTS Gary L. Peterson Donald G. Jolly Marlaine Szurek 590 40TH AVENUE N.E., COLUMBIA HEIGHTS, MN 55421 -3878 (612) 782.2800 TDD 782-2H06 Julienne Wyckoff Plense note: City Hnl/ Phone NamLers Gnve chnnged. New numbers nre: Mnia Number (763) 70G3600; TDD (763) 706-3692 John Hunter City Manager: Walter R. Fehst ADMINISTRATION March 7, 2000 Bradley Peterson 214 44'h Avenue NE Columbia Heights, MN 55421 Re: Telecommunications Commission Opening. Dear Bradley: On behalf of the Mayor and City Council, we would like to ask you to consider serving on the Telecommunications Commission for the City of Columbia Heights. We are aware of your strong commitment to our community and feel you would be very beneficial to this group. The Telecommunication Commission studies, investigates, and makes written recommendations on all matters pertaining to the provision of telecommunications services within the City. The commission oversees the administration of the cable television franchise, which includes rate regulation activities, franchise renewals, transfers of ownership, enforcement of customer service standards and ensuring compliance of the cable company with the terms and conditions of the franchise. The Commission meets the third Thursday of each month at 7:00 p.m. The City Council realizes the immense changes happening in this "electronic age" and hope that, through the direction of the Telecommunications Commission, the City can make intelligent decisions that will benefit everyone on our community. We feel your expertise and insight would be a definite asset to this Commission. We hope that you will consider and accept our request to be a member of the Telecommunications Commission for Columbia Heights. If you have any questions, please feel free to call me at 706- 3607, or Linda Magee, Assistant to the City Manager, at 706-3009. Please call Patty Muscovitz, Deputy City Clerk, at 706-3611, with your decision. She would gladly begin the process to have you appointed to this Commission. Again, we hope you will consider this appointment. Thaulc you for offering your time and talents to the City of Columbia Heights. The City Council truly appreciates your desire to serve your community. Yours very truly, ~~~n~~ ~ , ~C.s ~J Gary L. Peterson Mayor ~!,s~°`' nl ~~~~ ~ ~ ~~/,N~;/;/yN/ ~ , C. W. Fehst, CPty Manager Linda Maga, Auislant City Mawga ~~ ~~ THE CITY OF COLUMBIA HEIGHTS DOES NOT DISCRIMINATE ON THE BAEIS OF DISABILITY IN EM PLOVM ENT OR THE PROVISION OF SERVICES EQUAL OPPORTUNITY EMPLOYER ~~ Sent by: OERNICK L'IPSON P.A. 612 546 1003; 02/78/00 71:17AM; tFa^ g813;Page 2 CITY OF RIGHT-OF-WAY PERMIT AND FACILITY USE AGREEMENT THIS RIGHT-OF-WAY USE AGREEMENT (this "L'se Agreement") is dated as of (the "Effective Date"), and entered into by and between the C-TY OF , a Minnesota local governtrsent 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 Cotnmunications Commission, a mobile digital data communications radio network known as Ricochet, utlli2ing Radios (as defined in § ~-91_9 below) and related equipment certified by the Federal Communications Commission. 13. For purpose of operating Ricochet®, Metricom wishes to locate, place, attach, install, operate, and maintain Radios in the Public Right of_Way (as defined in § i-41,_8 below) on facilities owned by the City, as well as on facilities owned by third parties therein. AGREEMENT NOW, THEREFORE, for good and valuable consideration, the receipt and sulficiency of which are hereby acknowledged, the parties agree to the following covenants, terms, and conditions: 1. DEFINITIONS. ,~ up doses of this Use Agreement, the followine terms, phrases, words. atlbreviations and their derivations shall have the meaning given herein. When not inconsistent with the context, words used in the present tense include the future tense: words in the plural number include the singular number: words in the sin fular number include the plural number, and the masculine gender includes the feminine gender. !Jn exs otherwise expressly stated. words not defned herein shall be given the meanine art forth inapplicable Law and, if not defined therein. the words shall be given their common and ordinarvp~eaninE. The word "shall" is ahvavs mandatory and not merely direMOry. 'b''he word "may" is directory and discretionary. and not mandatory. 1.1 Adjusted Gross Revenues. "Adjusted Gross Revrnues"means the gross dollar amount received by Metricom for its Services (as defined in § 1.11 below) provided to subscribcn tvith billing addresses in the City, excluding (i) any utility users' tax, communications tax, or similaz tax or fee; (ii) local, state, or federal taxes that have been billed to the subscribers, and separately stated on subscribers' bills; and (iii) revenue uncollectible from subscribers (i.e., bad debts) with billing addresses in thr. Ciry that was previously included in Adjusted Gross Revenues: nrnyided Sent by: BERNICK IIFSON P.A, 612 546 t003; 02/18/00 it:t7AAl;ktFa, g873;Page 3 that if bad debt is subseguentty collected !t shall be includgd in Adjusted froxs Revenues in the period collceted. i.2 City. "City" means the City of and anv lawful et tee. 7.3 Fee. "Fee" means any assessment, license, charge, iee, imposition, tax, or levy of general application to entities doing business in the City lawfully imposed by any govetmental body (but excluding any utility users' tax, franchise fees, communications tax, or similaz tax or fee). 1.4 " ~k:S Laws. "Laws" means any and all statutes, constitutions, ordinances, resolutions, regulations, judicial decisions, rules, tariffs, administrative orders, certificates, orders, o: other requirements of the City er-ctl+er, the State of Minnesota, the fedtral tovernment or n governmental agency having joint or several jurisdiction over the parties to this Use Agreement. i-~ 1.5 Metricotn, "Metricom" means Metricom, Inc., a corporation duty organized and existing under the laws of the State of Delaware, and iu lawful successors, assigns, and transferees. ~1-7-1_6 MPUC. "MPUC" means the Minnesota Public Utility Commission. +5-17 Municipal fiacilitics. "Municipal Facilities" means City-owned sveet light poles, lighting fixtures, electroliers, or other City-owned structures located within the Public Right of_Way and may re!'er to such facilities in the singular or plural, as appropriate to the conuxt in which used. i~ I_8 Public Righ4_of_Way. "Public Right~f_Way" means the space in, upon, above, along, across, and over the public streets, roads, highways, lanes, cattways, courts, ways, alleys, boulevards, sidewalks, bicycle lanes, and places, including all public utility easements ar~d public service easemenu as the same now or may hereafter exist, that are under the jurisdiction of the City. This term shall not include county, state, or federal rightsof--way or any property owned by any person or entity etFtertl+an, includine the City, except as provided by applicable Laws or pursuant to an agreement between the Ci and Mttritnm, or the City and any such person or entity. if the City adjusu its boundaries pursuant to Minn. Sta[., Chap. 414 through annexation, incorporation, combination, detachment, or other means, this Use Agreement shall be binding on the entire area within the City's boundaries shat the adjustment. Sent by: BERNICK LIfSON P.A. 612 546 1003; 02/1B/00 1t:78AM;Mtiai M873;P2ge 4 i~le-1_9 Radio. "Radio" means the radio equipment, whether referred to singly or collectively, to be installed and operated by Metricom hereunder and an Qther equipment and facilities used in the~rovision of Services he~,{{nder. 1.10 Ricochet MCDN, "Ricochet MC)DN" means Ricochet MicroCellular Data Network. a digital wireless data communications microcellular radio network that ornvides Services. I.11 Services. "Services" means the mobile digital communications data services provided through itieeehet~the Ricochet MCDN by Metricom, which services consist principally of wireless Internet, email and local area network access and may include transmission of sotrrtd and video images; provided, however, that "Services" shall not be conswed, interpreted or applied to authoriu either real time telecommunications services (including telephone and voice) or video or cable services, except as may be considered standazd Internet content. 2. TEIL~1. This Use Agreement shall be effective es of the Effective Date and shall extend for a term of nine (9) years ,unless it is earlier terminated by either parry in accordance with the provisiotLS herein. The term of this Use Agreement shall be renewed automatically for three (3) successive terms of five (5) years each on the same terms and conditions as set forth herein, unless either party notifies the other of its intention not to rcncw not less that one hundred eighty (180) calendar days prior to commencement of the relevant renewal tetra. 3. SCOPE OF USE ACREEMENT. Any and all rights expressly granted to Metricom under this Use Agreement, which shall be exercised at Metricom's sole cost and expense, shall be subject to the prior and continuing tight of the City under applicable Laws to maintain and reconstruct the Public Right-of--Way and Municipal Facilities, and to use any and all parts of the Public Right of-iVay-•of-Way and Municipal Facilities exclusively or concurrently with any other person or entity and shall be further subject to al I deeds, easements, dedications, conditions, covenants, restrictions, encumbrances, and claims o!'title of record which may affect the Public Right_-of Way. Nothing in this Usc Agreement shalt he deemed to grant, convey, create, or vest in Metricom jj] a real property interest inland, including any foe, kasehold interest, or easement, or (ii) any pronerty interest in Municipal Facilities Io addition nothin,Y herein shat trait the Citv's ahilitKto exercise its nolic£poweex to the full extent ~termltted by_apniicable aw. Any work performed pursuant to the rights granted under this Use Agreement shall be subject to ilia reasonable prior review and approval of the City. 3.1 Attachment to Municipal Facilities. Tfte Subject to Metricom's obtiEation to obtain anv nermitc or approvals ay might be required under Zppiieahle 1 aws or the Citv's &~arter. standards or guidelines, the Ciry hereby authorizes and permits Metricom to enter upon the Public Right of Way told to locate, place, Sent by: BERNICK LIFSON P.A 6t2 5a6 1003; 02/t8/00 1t:tBAM;ktra, NBt3;Page 5/22 attach, install, operate, maintain, remove, reattach, reinstall, relocate, and replace Radios in or on Municipal Facilities for the gale purposes of operating Rieoehet~a Ricochet MCDN and providing Services. In addition, subject to the provisions of § 4.3 below, Metricom shell have the right to draw electricity for the operation of the Radios from the power source associated with each such attachment to Municipal Facilities. 3.2 Attachment to Third-Party Property. Subject to applicable laws and to obtaining the permission of the owner(s) of the affected property, the City hereby authorizes and permits Metricom to enter upon the Public Righc of Way and to attach, install, operate, maintain, remove, reenach, reinstall, relocate, and replace Radios in or on poles or other structures owned by public utility companies or other property owners located within the Public Right_of_Way as may be petmined by the public utility company or property owner, as the case may be, for the sole purposes of operating i~icocl+et~a Ricochet MCDN and providing Services, Upon request, Metricom shall fiunish to the City documentation of such permission from the individual utility or property owner responsible. , ,• 3.3 No Intcderenee. Metricom in the perfomtance and exercise of its rights and obligations under this Use Agreement shall not interfere in any manner with the existence operafion iostallatina maintenance. constnrction and recot~struction of any and all public and private rights-ofeway, sanitary sewers, water mains, storm drains, gas mains, poles, aerial and underground electrical and telephone woes, electroliers, cable television f cilities, and other information or communications, utility, or municipal property, without the express written approval of the owner or owners of the affected property or propenies, except as permitted by applicable Laws or this Use Agreement.-Gitr 3.3.1 lnterferenee Resolution. Any actual or anticipated radio interference caused by either the presence of the Radios or the presence of any such other communications equipment or devices in the Public Right of_Way shall be resolved by Metricom and any such Diller providers without cost to City on the basis of the applicable rules, regulations, practices, and procedures of the FCC. ' 3.4 Compliance with Lawa. Metricom shall comply with all applicable Laws in the exercise and performance of its rights and obligations under this Use Agrcement. required bx,,law or regplation Metricom shall obtain all required Sent by: BERNICK LIFSON P.A. 612 546 1003; 02/16/00 11:18AM; ktl'+~ g813;Page 6/22 approvals from appropriate governine authorities and s6eli secure env required assessment of the impact that the Radio° may have nn the environment. 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 required for the irritiel installation ofihe, repair. relocation and replacement of Radios. City shall promptly respond to Mctricom's filings and shall otherwise cooperate with Metricom in faciliutting the deployment of its Ricochet MCiJN on MunieiQpl Fac' iti in a reasonable and timely manner, 3.5 location and [nstallation of Radios. The proposed locations of Metricom's planned itsitttd installation of Radios shall be determined subject to the reasonable prior review and approval of the City, promptly aAer Metricom's review of available strret light maps and prior to deployment of the Radios. Upon the completion of installation. Metricom promptly shall famish to the City a pole list showing the exact location of the Radios in the Public Right e¢ib'ar-o -Wav. A~ subsequent removal or relocation of Radios shall be disclosed (,o the City, in writin,P within te~10,~ davs of the date that the relocation or renewal is initiated. 3.6 p'acitities is limited to the specific suthortzation granted in is lJcc Agreement. 4. CQMPENSATION; UTIl1TY CfIARCES. Metricom shall be solely responsible for the payment of all lawful Fees and other~piicltble levies in connection with Metricom's performance under this Use Agreement, `- ---°~'---- •-~`•` •`_ ._.._. _ __. ferti~-below. 4.f Right-of--Way Management Reimbursement. In order to reimburse City for any right-of=way management costs it may incur during the term of this Use Agreement following the initial deployment of the Radios in connection with Metricom's entry upon and deployment within the Public Right of--Way, Metricom shall pay to the City, on an annual basis, an amount equal to one percent (1 %) of Adjusted Gmss Revenues (the "Right-of--Way Management Reitnbursetnent"), which amount a al a remitted to City as provided herein. The parties agree that such Right-of--Way Management Reimbursement represents a fair estimate of the costs of continuing management of the Public Rightof--Way utilized by Metricom and that such Right-of--Way Management Reimbursement is not a franchise fee or payment for use of the Public Kight of--Way. The Right-of--Way Management Reimbursement shall be payable for the period commencing upon the date that Services are offered to eetnmereiaiiy paying subscribers within the City using Radios installed pursuant Sent by: BERNICK LIFSON P.A. 672 546 7003; 02/78/00 77:79AU; kern, g873;Page 7/22 to this Use Agreement and ending on the date of tem7ination of this Use Agreement, and shall be due on or before the 45'" day after flee end of each calendaz year or fraction thereof. Within forty-five (45) days after the termination of this Use Agreement, compensation shall be paid for the period elapsing since flee end of the last calrndar year for which compensation has been paid. Metricom shall furnish to the City with each payment ofcompensntion required by this section a statement, executed by an authorized officer of Metricom or his or her designee, showing, in detail the amount of Adjusted Gross Revenues for the period covered by the payment. if Metricom or the City discovers any error in the correct amount of compensation due, the City shall be paid within thirty (30) days of discovery of the error or determination of the correct amount. Any overpayment to the City through error or otherwise shall be refunded or offset against the ttext payment due. Acceptance by the City of any payment due under this section shall not be deemed to be a waiver by the City of any breach of this Use Agreement occurring prior thereto, nor shall the acceptance by the City of any such payments preclude the City from Later establishing that a lazger amount was actually due or Crom collecting any balance due to the City. City may, at any time, at City's sole option, upon ninety (90) days written notice, require Metricom to discontinue the Right-of--Way Management Reimbursement compnnsatinn. Upon receiving such notice Metricom shall, no later than ninety (90) days afar 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 eltarge recover from Metricom, on all artttual basis, its actual Right•of• Way Management costs (pursuant to Minnesota Statutes Section 237.162, Subd. 9 and Section 237.163, Subd. 2(b)), that aze incurred afer the expiration of the ninety (90) day period described above. 4.1.1 Reduction of Rigbt-of--Way Management Reimbursement by Amount of Utility Users or Communications Tax. Notwithstanding anything to the contrary in this Use Agreement, if the Services aze subject to a utility users tax, communications tax, or other similar tax or fee which accrues to the City by operation of the City's Municipal Code or other applicable faw yew, then the amount 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. 4.1.2 Accounting Molten. Metricom shall keep accurate books of account at its principal office in Los Gatos or such other location of iu choosing for the purpose of determining the amounts due to the City under § 4. ]above. The City may inspect Metricom's books of account relative to the City at any time during regular business hours on d7irey(39)~luys torte-eieht (4R1 Sent by: BERNICK LIFSON P.A. 6t2 546 1003; 02/10100 11:19AM;ktF~i g813;Page 0/22 hours, prior written notice and may audit the books from time [o time at the City's sole expense, bui in each case only to the extent necessary to confirm the accuracy of payments due under § 4.1 above. Altcmatively. Metricom will all make available for inspection by the City at Metricom's office located closest to the City, upon ti»rry{36}dttys fo t!_y-eieht j48).j}gurs' prior written notice, the relevant portions of its books and records as reasonably necessary to confirm the accuracy of any payments due the City under this Use Agreement. Should an audit performed pursuant to this paraeraoh disclose an underpayment of amounfs due under this Use Agreement. then Mctricotp shell ~imburse the Citv for the coats of the audit, in addition to gavine the City thgamount of the underQayment The City agrees to hold in confidence any non-public information it !cams from Metricom to the fullest extent permitted by Law, 4.2 Annual Fee. As compensation for the use of Municipal Facilities, Metricom shall pay [o the City an annual fee (the "Annual Fee") in the amount of Sixty Dollars ($60.00) €efr-dte~us~ofeneh tl.-er Municipal Facility, if any, upon which a Radio has been installed purs»ant to this Use Agreement. Where light poles or other facilities to be used by Metricom within the Fublic 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 Annual Fee with respect to each year ot'the term o b's Tlse Agreement shall be an amount equal to the number of Radios installed on Municipal Facilities doting the preceding twelve (12) months multiplied by the Annual Fee, prorated as appropriate, and shall be due and payable not later than forty-five (45) days after each anniversary of the ftsstaiiatiaet Effective Date. Crty represents and covenants that City owns all Municipal Facilities for the use of which it is collecting from Metricom the Annual Fec pursuant to this § 4.2. 4.2.1 CPI Adjustment. titereafier , The Anoual Fec shall be increased annually, rtn the anniversarv of the Effective Date of this Ilse ~precment, by a percentage amount equal to the percentage increase, if any, in the U.S. Department of Labor, Bureau of Labor Statistics Consumer price Index (All Items, All Consumers, ] 982-1984=] UO) which occurred during the previous five-year period for the Midwest Urban Region Consolidated Mevopolitan Statistical Area. 4.3 lrlectricity Cbarges. Metricom shall be solely responsible for the payment of all elecuicol utility charges to the applicable utility company based upon the Radios' usage of electricity and applicable tariffs. 4.4 Reimbursement of City's Project Review >:xpenses. Mevicom shall reimburse: Sent by: BERNICK LIFSON P.A. 612 546 1003; 02/78/00 tt:20AM;~etF°~ g6t3;Page 9/22 the City for reasonable attorney's tees and other project review expenses relating to the prepazation and review of this trse •~e Agreement, promptly upon receipt of itemized bills, paid invoices, and other such documentation as Metticom shall reasonably require, and in a total amount not to exceed t3ete Twn Thousand Dollars (~~BAAjrsz~tNHii. The roimbursrment provided for in this § 4.4 shall not replace or excuse Metricom from the payment of any applicable permit fee Likewise the reimbursemeniprovided for herein shall not he offset a¢ainat the Annual Fee the 1~igh~-or way Management Reimbursement, any recov_yr of actual )itt~pht•of•Wav management costs or env other amounts owed to the Cifv nu~r usnt to thi~t Use Agreement nr applicable Law. 4.5 Municipal Subscriber Program. City shall have the right throu;hout the term of this Use Agreement to receive up to the maximum number specified below (based upon the City's population) of free ftieoehc~Rieochet MCDN basic service subscriptions and,portable wirciese modems. The number of free subscriptions and portable wireless modems which the Ciry may receive shall be determined in accordance with the City's official population, as shown on the latest available census data, as follows: (a) for municipalities with a population of less than 100,000, up to a maximum of ten (10) free subscriptions and ten f10) tree portable wireless modems; {b) for municipalities with a population of between 100,000 and 249,000, up to a maximum of fifteen (1 S) free subscriptions sod fifteen (ISt free portable wireteas modems; (c) formunicipalities with a population of between 250,000 and 500,000, up to a maximum of twenty (20) free subscriptions and_twenty (201 free portable wireless modems; and (d) for municipalities with a p_tr,~ulation ofover 500,000, up 1o a maximum of twenty-five (25) free subscriptions and twenty-five L5) free~tortable wireless mod .City shall designate one person who shad be responsible for ordering and receiving any subscriptions and modems. To take advantage of this program, the designated individual should contact Metricom's Network Real Estate Department at the address stated in § 8 9 below. Ciry's right to use the subscriptions and portable wireless ptodems shall commence at the time that ~ieaeiret®Ricnchet MCDN service is eorntnereiel}y available in the City and shalt extend until the expiration of the term of this Use Agreement or through the length of time that Radios are deployed in the ii4tmieipal ub is Right:of_Way, whichever is longer. City's use of the subscriptions and free portable winless modems shall be subject to the standard i~ieeehet~Ricochet MCDN terms and conditions of use. City understands and agrees that arty additional modems and >~iy equipment required to utilize the subscriptions, and any additional servile subscriptions or service options the City may desire, may be obtained from en authorized reutilcr at market rates current from time to lima. City shall use all subscriptions and portsbte wireless mo rms provided pursuant ro this section solely for its own use and shall not be entitled to resell, distribute, or otherwise permit the use of same by any other petnon, excepting a local public entity that Sent by: BERNICK LIFSON P.A. 872 5a6 1003; 02/78/00 1t:20AM;}etF°+ H8t3;Page t0/22 provides public service within the corporate boundaries o1'tlte City (r.g., municipal schools, public safety, or fire depattrnents, etc,). The level of benefits and service provided to City by Metricom as "basic service" shall not be diminished or reduced during the term of this Use Agreement or renewal thereof or prior to its the cancellation or termination of this Use Agreement, as the case may be. 4.6 Most-Favored Muaicipaliry Clause. Should Metricom after the panics' execution and delivery of this Use Agreement enter into aright-of--way permit and facility use agreement with another municipality -`•'~- --- ~ -=-- -~ - --° --'`~~- in the seven-county Minneapolis/St. pgul metropolitan area, which agreement con[ains Dither (s) a higher Right-of--Way Management Reimbursement as described in § 4.1 above, or (b) a higher Annual Fee as described in § 4.2 above, or (c) a higher amount of Reimbwsement of City's Project Review $xpenses as described in § 4.4 above, City shall have the right to require that Metricom modify this Use Agreement to incorporate the same or substantially similar superior benefits and such other terms. S. REMOVAL.1tELOCAT[ON. ABANDONMENT ANA DISPLACEMENT OF RADIOS: MAINTENANCE. Metricom understands and acknowledges that City may require Metricom to remove or relocate one or more of its Radios, and Metricom shall at City's direction remove or relocate such Radios at Metricom's sole cost and expense, whenever City reeseaebly, in its sole discretion. determines that the removal nr relocation is needed for any of the following purposes; (a) if required for the construction, completion, repair, relocation, or maintenance of a City project City property or Puhlic Riehts-of-Way; (b) because the Radio is interfering with or adversely affecting proper operation o!'City-owned Tight poles, traffic signals, communications systems or other Municipal Facilities; or (c) to protect or preserve the public health or safely. In any such case, City shall use reasonable efforts to afford Metricom a reasonably equivalent alternate location with no duty to incur any expenses or cost to City, [f Metricom shall fail to remove or relocate any Radios as requested by the City within a reasonable time under the circtunsta»ces in accordance with the foregoing provision, City shail be entitled to remove or relocate the Radios at Metricom's sole cost and expense, without further notice to Metricom. The ~'itv shall noI be liable to Metricom for any damages caused City removal or relocation of Redior under this Use Agreement. 'fo the extent the City has actual knowledge thereof, the City will anempt promptly to inform Metricom of the displacement or removal of any pole on which any Radio is located. 5.1 Relocations at Metricom's Request. In the event Metricom desires to relocate any Radios from one Municipal Facility to another, McVicom shall so advise City, City will use reasonable efforts to accommodate Meuieom. to the extent osR Bible. by malting another reasonably equivalent Municipal Facility available for use in accordance with and subject to the terms and conditions of this Use Sent by: BERNICK LIFSON P.A, 612 546 1003; Agreement. 02/t8/00 7t;21 AM;ktraa gSt3;Page it/22 5.2 Damage to Public Right ef-Wsy-ot Wav and City ProQertv, 1Yhenever the installation, removal or relocation of Radios or anv Ricochet MCDN facilities is required or permitted under this Use Agreement, and such installation, removal or relocation shall cause the Public Right af~Way--of-Way or anv Citv~roperty to be damaged, Metricom, at its sole cost and expense, shall promptly repair and return the Public Right prevailing prior to Metricom's work, normal wear and tear excepted, If Metricom does riot repair the site or nrooerty as just described, then the City shall have the option, upon fifteen (IS) days prior written notice to Metricom, 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 City's standard rates. Upon receipt of a demand for payment by the City, Metricom shall promptly reimburse the City for such costs. Si3 Mainfenance of Radios. Metrifgirt,~tall maintain sll Radios a»d Ricochet MCDN facilities in eood and safe condition sod state of repair. S`9 t-bandonment In the event that any Radios arc abandoned or deactivated for period of three (3) months or more. Metricom shall notify the Ci4y. It the City so regnesh. Metricom shall promptly remove tfie abandoned or deactivated Radios gt no rnst or expense to the Cit~If, within fifrcen t151 deactivated Radios at Metricom's sole cost and cxpFnse. o~pccent the reversion of ownership of the same to the City consent to which ~s hereby given by Metricom. If the Citv exercises itc reversion rights, Metricom shall execute such documents of title as will convey ]I ri ht, title and interest in the abandoned or deactivated Radios to the City. 5.5 Removal lJnon Termination Upnn termination of this Use Agreement subject to the City's Iten rights as provided by Minnesota law or the corres~ndinr.provisions of anv future law. Metricom shall remove ail of its Public R_ght-of--Wav aad Municipal Facilities. end shall restore tilg Public ~ t-of--Wav and Municipal Facilities fn the condition existingwhen off, pally used by Metricom I/xcept as pFovided herein Metricom chali he deemed to have abandoned $nv Radios tacilitics and~ersonal,pronerty that have oat been removed from Municlpal Facilities and the Public $.ieht-o(';Wav wkhin thirty (30) Qave followine termination, unless such Sent by: BERNICK LIFSON P.A, 672 546 1003; 02/18/00 11:27AA7;Jelip~ p873;Page 72/22 emoval i.c urnhi} itedlt~e of tha Cirv's exercise of it~ien ri hts or~tnless the City grants in writJn~ a longer period for removal. At the City's request, Metricom shall. at its sole e~ense. orortZptly remove abandoned Radios. ~'aeilities and personal prone from Munici,Ral Facilities and Public Lijghts-of-Wqy. if. within fifteen (15~, davs of the Citv';~puest, Metricom has not removed abandoned Radios, facilities and ncrsonal pro„lterty, the Citv may remove such Radios. facilitiesc and personal nrnnerty at Metricom's ole cost and ~Lrense. 5_ti Cleanup of Contamination Metricogr shall reimburse the City for all costs of eleanuo accociated with any lea a or contamination from Radios or Ricochet LVI~pN facilities, reeardless of whether such leakage or contamination occurred plior to or in the course of removal. ti, INDEMNIFICATION ANn WAIVER. Metricom agrees to indemnify, defend, protect, and hold harmless the City, its wurtcil members, commissions. commissioners, boards, scents, officers, and employees from and against any and all etaims, demands, losses, damages, liabilities, fines, chazges, penalties, administrative and judicial proceedings and orders, judgements, and all costs and expenses incurred in connection therewith, including reasonable attorney's fees and costs of defense (collectively, the "Losses") directly or proximately resulting from Metricom's activities undenaken pursuant to this Use Agreement, except to the extent azising from or caused by the negligence or willful misconduct of the City, its council members, officers, employees, agents, or contractors. The foregoing notwithstanding, Metricom shall 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. Metricom shall also defend and indemnify the City, its officers and employees, even in the case of negligence, if the allegations are based on the City's ar iu officers or employees' negligence or otherwise wrongful act or omission in issuing a permit to Metricom or approving this Use Agreement, or in failing to properl y or adequately inspect or enforce compliance with the terms, conditions or purpose of any pemtit 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, damage, or injury to any Radio or any loss or degradation of the Services as a result of any event or raccurrence which is beyond the reasonable control of the City or on account of City's exercise of its regulatory or police powers. 6.2 Limitation of Ciy'r Liability. ~}te Exg~inr the removal or relocation of t~,dioa, the City shall be liable only for the cost of repair to damaged Radios arising from the o •s negligence or willful misconduct of City, its employees, agents, or contractors. Sent by: BERNICK LIFSON P.A. 612 5a6 t003; 02/tB/00 11:21AM;ktFuc N6t3;Page 13/22 7. INSURANCE. Metricom shall obtain and maintain at all times during the term of tJtis Use Agreement Commercial General Liability insurance and Commercial Automobile Liability insurance protecting Metricom in an amount no[ less than One Million potters ($1,000,000) per occuaencc (combined single limit), including bodily injury and property damage, and in an amount not less than One Million Dollars (S 1,000,000) annual aggregate for each personal injury liability and products-completed operations. 7'he Commercial General Liability insurance policy shall ttame dte City, its council members, commissions. commissioners ?gents boarder officers, and employees as additional insureds as respects any covered liability arising out of Metricom's performance of work under this Use Agreement. Coverage shall be in an occurrence form and in accordance with the limits and provisions specified herein. Claims-made policies are not acceptable. Saeh The Cgguired insurance shall not be canceled, nor shall the occurrence or aggregate limits set forth above be reduced, until the City has received at least thirty (30) days advance written notice of such cancellation or change. Mctricom shall be resporuihle for notifying the City of such change or cancellation, Prior to any five (5) year renewal tcmt, pursuant to § 2 o}'this Use Agreement, 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 effective until the commencement of'such renewal term. 7.1 Filing of Certificates and Endorsements. Prior to the commencement of any work pursuant to this Use Agreement, Mctricom shall file with the City the required original certificate(s) ofinsurance with endorsements, which shall state the fallowing: (a) the policy number; name of insurance company; name and address of the agent or authorized representative; tttune and address of insured; project name; policy expiration date; and specific coverage amounts; (h) 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 anyself-inseved retentions the City may have; and any other insurance the City does possess shall be considered excess insurance only and shall not be required to conVibute with this insurance; and (d) that Metricom's Commercial General Liability insurance policy waives any tight 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 § $ 9 below. 7.Z Workers' Compensation losaraace. Metricom shall obtain and maintain at all times during the term of this Use Agreement statutory workers' compensation and Sent by; BERNICK LIFSON P.A. 612 546 7003; 02/76/00 77:22AM;~_g873;Page 1x/22 employer's liability insurance in an amount not Tess than One Million Dollazs (S 1.000,000} and shall furnish the City with a certificate showing proof of such coverage, The City shall not under anv circumstancec he required or obligated to provide workers' compensation benefits to anv officer empjpvee agent, contractor nr subcontractor of Me[tie{om 7.3 Ensurer Criteria. Any insurance provider of Metricom shall be admitted and authorized to do business in the State of Minnesota and shall cant a tninimttm rating assigned by A. Af Besl & Company s Xey Rattng Guide of `A"Overall and a Financial Size Category of "X" (i. e., a site of S500,000,000 to $750,000,000 based on capital, surplus, and conditional reserves). Insurance policies and certificates issued by non-admitted insurance companies are not acceptable. 7.4. Severability of Eoterest. Any deductibles or self-insured retentions must be stated on the certificate(s) of insurance, which shat! bt stn[ to and approve by the City. "Severability of interest" or "sepazation of insureds" clauses shall be made a part of the Commercial General Liability and Commercial Automobile Liability policies. 8, BOND. Ae the time this Use Agreement becom e(jggsjve and at all rimes thereafter until Metricom has liquidated all of its obligations tQ the City, Metricom shall he conditioned upon the faithful~7erformance by Metrigpgr of itc obliga~sns under this Usc Agreement and_pon the further condition that in the event McWcom shall fail to romplKwith applicable Laws or with anv orovisfon of this Uce Agreement tpere shall he recoverable joints and severally from the principal ar~„1 surety of the bond any damages or loss suffgred j:y the Ci as a result indudi7lg the f t)1 amount of anv compensation indemnification or cost of removal of an_v pLQpgr~y of Metricom,,plus B ratconable allowance for attorneys' tees and eocts, up to the full amount otthc bond and further guaranteeing payment by Metricom of claims. liens and taxes due the City which arise by feason of the construction 2~ration or maintenance of the Ricochet MCDN. The rights reserved by the City with respect to the bond are in addition to ail other r~htc the Cirv mat have under this Usc Agreement or aonlicable Laws The City may from year to year in its sole discretion. reduce the amount of the nerforma»ce bond 9. NOTICES. All notices which shall or may be given pursuant to this Use Agreement shall be in writing and delivered personalty or transmitted (a} through the United States mail, by registered or certified mail, postage prepaid; (b) by means oCprepaid overnight delivery service; or (c) by facsimile or email transrniesion, 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: ijto the Ciry: Sent by: BERNICK LIFSON P.A, 672 5a6 1003; 02/10/00 tf:22AM;htrr, gSf3;Page 75/22 City of [NAME OF MUNICIPALITY) Attention: (NAME OF CONTACT) (ADDRESS] [Name of Municipality, MN [ZIPJ ijro Merricom METRICOM, INC. Attention: Network Real Estate 980 University' Avenue Los Gatos, CA 95032 8:~ 9_l Date of Notices; Changing Notice Address. Notices shall be deemed given upon receipt in the case of personal delivery, three {3) days after deposit in the mail, or the next business day in the case of facsimile, a-mail, or overnight delivery. Either party may from time to time designate any other address for this pftrposc by written notice to the other party delivered in the manner set forth above. 9: J0. TERMINATION. This Usc Agreement may be terminated by tither party upon fonytive (AS) days prior wririen 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 fotty-five (45) days of receip[ of written notice ofdefault (or, if such default is not curable within forty-five (45) days, if the defaulting party faits to commence such cure within forty-five (45) days or fails thereafter diligently to prosecute such cure to completion), provided that the grace period for any monetary default shall be ten (10) days from receipt of notice. Except as expressly provided herein, the rights granted under this Use Agreement are irrevocable during the tern, y8 f 1. ASSIGNMENT. This Use Agreement and any right or interest herein shall not be transferred or assigned by Merricom without the express prior written consent of the City, which consent shall not be unreasonably withheld, conditioned, or delayed. A'otwithstanding the foregoing, the transfer pr assignment of the rights and obligations of Merricom hereunder to a parent, subsidiary, or financially viable affiliate of Merricom shat! not be deemed a transfer ' or assignment for the purposes of this Use Agreement. No transfer nr assignment of this Use Agreement (2r anv interest or r;pht herein~y he agnroved without the trsneferee becoming a siglLt_a_t~ry to this Use Agreement, and assumine X11 rights and obligations hereunder. ~2, ~-}. 11[SCELLANEOUS PKOViSIONS. The provisions which follow shall apply generally to the obligations of rho parties under this Use Agreement. Sent by; BERNICK LIFSON P.A. 6f2 5a6 f003; 02/f8/00 1f:23AlA; F•~ paf3;Page f6/22 i-1-:1 12.1 Nonexclusive Use. Metricom understands that this Use Agreement does not provide Metricom with exclusive use of the Public Right-of•Way or any Mtuucipal Facility and that City shall have the right to permit other providers ofcommunications services to install equipment or devices in the Public Right-of_Way and on Municipal Facilities. City agrees pretttpt}y-le~-to uce reasgpable eftorkc t~romntly notify Metricom of the receipt of a proposal for the installation of communications equipment or devices in the Public Right_of_Way or on Municipal Facilities. In addition, City agrees to Lase nasonable efforts to advise other providers of communications services of the presence or planned deployment of the Radios in the Public Right_of_Way and/or on Municipal Facilities. #.2 d2~2 Waiver of Breach. The waiver by either parry ol'any breach or violation of any provision of this Use Agreement shall not be deemed to be a waiver or a continuing waiver of any subsequent breach or violation of the same or any other provision of this Use Agreement. Anv failure or delay of City to require or enforce ~ompt compli~oge with the terms of this Use Agreement shall not be considered a waiver, and Metricom shall not be relieved of its obl~itions to compjy with this Use Agreement by virtue of such a failure or deter City may oni~waive its right. hcreundgr by expresdy so stating in writing- ,~ i-1:3 &everability of Provisions. if any one or more of the pmvisiorts of this Use Agreement shall be held by a court of competent jurisdiction in a final judicial action to be void, voidable, or unenforceable, such provision(s) shall be deemed severable from the remaining provisions of this Usc Agreement and shall not affect the legality, validity, or constitutionality of the remaining portions of this Use Agreement; nrnvide4l, however, that if the City, in its Bole discretion determines that a revered provision materially alters the contractual relatinnchiP created herein the City may choose to terminate this Use Agreement with no damages costs or expenses attributed tglhe Citv. Notwithstanding the foregoing, the parties agree that if a court or administrative agency of competent ,jurisdiction should declare a provision(s) of § 4 of this Use Agreement invalid, then the parties shall each be obligated to negotiate in good faith to amend § 4 of this use Agreement and if, after one hundred and eighty (1 g0) days from the commencement of negotiations or such extension thereof that may be agreed by the panics, the parties aze unable to reach agreement on amendments hereto, then this Use Agreement may be terminated by either party. }4-4 L Contacting Metricom. Metricom shall be available to the staff employees of ttny t~l,g Ciry depmttnettt having jurisdiction over Metricom's activities twenty-four (24) hours a day, seven (7) days a week, regarding problems or complaints resulting from the attachment. Sent by: BEHNICK LIFSON P.A, 6t2 546 tOD3; 02/t6/00 tt:23AlA;jetF,: p813;Page 17/22 installation, operation, maintenance, c a or removal of the Radios ~d the 1~cochet MCDN. The City may contact by telephone the network control center operator at telephone number (800) 873-3468 regarding such problems or complaints. fi3 L Governing Law; Jurisdiction. This Use Agreement shall be governed and construed by and in accordance with the laws of the State of Minnesota, without reference to its conflicts of law principles. if snit is brought by a party to this Use Agreement, the parties agree that trial of suc)t action shall be vested exclusively in the state courts of Minnesota, County of . or in the United States District Court for the District of Minnesota. i-!:6 ,~ Attotroeys' Fees. Should any dispute arising out of this Usc Agreentem lead to litigation, the prevailing party shall be entitled to recover its costs of suit up to an amount of Five Thousand [bllazs (55,000.00), including (without limitation) reasonable artorneys' fees. i-13 12.7 Consent Criteria, fn any case where the approval or consent of one party hereto is required, requested or otherwise to be given under this Use Agreement, such party shall not unreasonably delay, condition, or withhold its approval or consent. 12.8 R_ghts Cumulativa All n_ghts and remedie~iven to City {ty thic Use ~greeroent or retained by City herein shall he in addition ro and cumulative shall aot be exclusive fiat each and every ri ght and remedy snecifieally given lry this Use Agt~eement or otherwise existing _or given m~ be exercised from ~ e 1o time and as often and in such order as may be deemed ex~¢ient by Ci ty and the exercise ojo ne or more remed ies shall not be deemed a waj_ver of the right to exercise at the name time orlh sreafter~nrnther right or reme ,j2.9 i-t:8 Representations and Warranties. Each of the parties to this Agreement represents and warrants that it has the full tight, power, legal capacity, and authority to enter into and perform the parties' respective obligations hereunder and that such obligations shall be binding upon such parry without the requirement of the approval or mnsent of any other person or entity in connection herewith, except as provided in § 3.3 above. i~:9 tz.tn Amendment of Use Agreement. This Use Agreement may not be amended except pursuant to a wrinen instrument signed by both parties. x-1:4812.11 Entire Agreement. This Use Agreement contains the antirc Sent by: BERNICK LIPSON P.A. 612 Safi 1003; 02/18/00 t1:23AM;ktF°a NB13;Page 1B/22 understanding betweenthc parties with respect to the subject matter herein, There are no representations, agreements, or understandings (whether oral or written) between or among the parties relating to the subject matter of this Use Agreement which are not fully expressed herein. ]2.12 BindinE Acrentance This Ilse Agreement shall bind and benefit the parties hereto and their respective authorired heirs beneficiaries administrators ~ecutors, receivers, trustees. successor; and assigns. IK WITNESS WI~TEItEOF, and in order to bind themselves legally to the terms and conditions of this Use Agreement, the duly authorized representatives ofthe parties have executed this Ilse Agreement as of the Effective Datc. Ciry: CITY OF _ corporation. By: e Minnesota municipal [name typed] Its: Date: , X000 ay: (name typed] Its: Date: , 2000 Merricom: METRICOM, INC., a Delaware corporation. By: [name typed] Its: Date: , 2000 L'.kaDklMetriwmWSr AOAk4M&Nf I-T CMr WPD %~ MediaOne l.aw & Public Policy Department 10 River Park Plaza St. Paul, MN 55107 Telephone: (651) 312-5281 Facsimile: (651) 312-5288 Kathi Donnelly-Cohen Director -Government Affairs February 18, 2000 Ms. Linda Magee City of Columbia Heights 590 NE 40th Street Columbia Heights, MN 55421 Dear Linda: G '6X IIG ~~~,~~ to n~oTdi„~d. Ti,ta is m~,~ar. In June of 1999, I sent all local franchising authorities a letter regarding changes to premium services and packages. About a year prior to that, we announced changes in the discounted packages and ceased selling the older packages. To minimize customer impact, we "grandfathered" existing customers of the old packages. Since that time, we have worked with many of the affected subscribers to convert them to a newer package that meets their needs. Many of these changes are a result of merging three companies with different premium channel packages, pricing structures, as well the anticipated changes as we add channels through the network upgrade process. While we approached this slowly, we now must movo forward over the next few months to convert the remaining subscribers from the outdated premium pricing packages to the new packages. As you can see from the attached grid, some changes will take place in April and others later this year. Individuals affected by these changes range from 4 subscribers in one package to 681 in another package configuration. Letters will be sent to each subscriber, detailing their current package and what changes we will make. We provide a direct dial line to the in-bound sales group to handle the conversions. A subscriber is welcome to make any changes that may better suit their viewing needs. If they do not select a new package, the Change noted in the letter will be implemented. If you have any questions on this conversion, please do not hesitate to contact me. Sincerely - cif cl..~' Kathi Donnelly-Cohen Director -Government Relations Cc: David Seykora EEB, 21. 2000 5:03PU N0, 5320 P, 2/2 MediaOne Promotional Premiulgt Package Audit Former Meredith System Current Package Contents Current New Premium Package New package Package Mo, Rata Contents Price Price Variance Notifioation week of 2121 HBO and TMC $13.90 MBO Ala Cage $10.95 ~ ($2.95) Showlime end TMC $13.90 Showlime Ala Carte &TMC $10.96 ($2.95) Free For 8 Months HBO, Showlime and TMC $18.95 Premium Seleq • HBO, $19.95 $1.00 Showlime and TMC Notification week of 2128 HBO and Cinemax $13.90 Premium Plus -HBO and $15.95 $2.05 Cinemax ~ Showlime and Cinemax $13.90 Showlime Ala Carte $10.95 ($2.95) H80, Cinemax and Showlime $16.95 Premium Plus -HBO end $1.5.95 ($3.00) Cinemax Cinemax and TMC $13.90 TMC Ala Carte $10.95 ($2,95) HBO, Cinemax and TMC $18.95 HBO Ala Cane & Cinemax $10.95 ($8.00) free for 6 Months Showlime, Cinemax entl TMC $18.95 Showtlme Ala Carte & 7MC $10.95 ($8.00) Free For 6 Months Notification March -December MBO and Showlime $13.90 HBO Ala Carte $10.95 ($2.95) HBO, Cinemax, Showlime entl TMC $21.95 Premium Preferred -HBO, $23.95 $2.00 Cinemax, Showlime and TMC HBO, HBO Plus, Showtlme, $19.95 Premium Preferred -HBO, $23.95 $4.0 Showlime 2, TMC, Cinemax and the Cinemax, Showlime and TMC OSPG (No OSPG) HBO, H80 Plus, Cinemax and the $14.95 Premium Plus -HBO end $15.05 $1.00 OSPG Cinemax (No OSPG) Showlime and Showlime 2 $10,05 Showlime Ala Carta - (No $10.95 $0.00 Showlime 2)