[NAME OF MUNICIPALITY]
Right - of - Way Use Agreement
T HIS RIGHT - OF - WAY USE AGREEMENT (this "Use Agreement") is dated as of
___________________, [Year of Agreement Date] (the "Effective Date"), and entered into by
and between the [TYPE OF MUNICIPAL ENTITY] OF [NAME OF MUNICIPALITY] , a
New Jersey municipal corporation (the "Municipality"), and METRICOM, INC. , a Delaware
corporation ("Metricom").
Recitals
A. Metricom is in the business of constructing, maintaining, and operating a mobile digital
data communications radio network known as Ricochet, a network operated in accordance with
regulations promulgated by the Federal Communications Commission, utilizing Radios (as
defined in § 1.12 below) and related equipment certified by the Federal Communications
Commission.
B. Metricom wishes to locate, place, attach, install, operate, and maintain Radios on facilities
owned by the Municipality, as well as facilities owned by third parties, located in the Municipal
Right of Way for purposes of operating Ricochet .
Agreement
Now, therefore, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree to the following covenants, terms, and conditions:
1 DEFINITIONS. The following definitions shall apply generally to the provisions of this Use
Agreement:
1.1 Agency. "Agency" means any governmental or quasi - governmental agency other
than the Municipality, including the Federal Communications Commission and the
BPU (as such term is defined in § 1.2 below).
1.2 BPU. “BPU” means the New Jersey Board of Public Utilities.
1.3 Municipal Subscriber Program. "Municipal Subscriber Program" means the
discount program described in § 4.3 below.
1.4 Fee. "Fee" means any assessment, license, charge, fee, imposition, tax, or levy of
general application to Persons doing business in the Municipality lawfully imposed
by any governmental body (but excluding any utility users' tax, franchise fees,
communications tax, or similar tax or fee).
1.5 Installation Date. "Installation Date" shall mean the date that the first Radio is
installed by Metricom pursuant to this Use Agreement.
1.6 Laws. "Laws" means any and all statutes, constitutions, ordinances, resolutions,
regulations, judicial decisions, rules, tariffs, administrative orders, certificates,
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orders, or other requirements of the Municipality or other governmental agency
having joint or several jurisdiction over the parties to this Use Agreement, in effect
either as of the Effective Date or at any time during the presence of Radios in the
Municipal Right of Way.
1.7 Metricom. "Metricom" means Metricom, Inc., a corporation duly organized and
existing under the laws of the State of Delaware, and its lawful successors, assigns,
and transferees.
1.8 Municipal Facilities. "Municipal Facilities" means Municipality - owned street light
poles, lighting fixtures, electroliers, or other Municipality - owned structures located
within the Municipal Right of Way and may refer to such facilities in the singular
or plural, as appropriate to the context in which used.
1.9 Municipal Right of Way. "Municipal Right of Way" means the space in, upon,
above, along, across, and over the public streets, roads, lanes, courts, ways, alleys,
boulevards, and places, including all public utility easements and public service
easements as the same now or may hereafter exist, that are under the jurisdiction of
the Municipality. This term shall not include county, state, or federal rights of way
or any property owned by any Person or Agency other than the Municipality,
except as provided by applicable Laws or pursuant to an agreement between the
Municipality and any such Person or Agency.
1.10 Person. "Person" means an individual, a corporation, a limited liability company, a
general or limited partnership, a sole proprietorship, a joint venture, a business
trust, or any other form of business entity or association.
1.11 Provision. "Provision" means any agreement, clause, condition, covenant,
qualification, restriction, reservation, term, or other stipulation in this Use
Agreement that defines or otherwise controls, establishes, or limits the performance
required or permitted by any party to this Use Agreement. All Provisions, whether
covenants or conditions, shall be deemed to be both covenants and conditions.
1.12 Radio. "Radio" means the radio equipment, whether referred to singly or
collectively, to be installed and operated by Metricom hereunder.
1.13 Ricochet . "Ricochet " or "Ricochet MCDN” means Ricochet MicroCellular
Digital Network, a mobile, microcellular digital radio communications network
owned and operated by Metricom.
1.14 Services. "Services" means the mobile digital communications services provided
through Ricochet by Metricom.
1.15 Municipality. "Municipality" means the Municipality of [Name of Municipality].
1.16 Use Agreement. "Use Agreement" means this nonexclusive Use Agreement and
may also refer to the associated right to encroach upon the Municipal Right of Way
conferred hereunder.
2 TERM. This Use Agreement shall be effective as of the Effective Date and shall extend for a
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term of ten (10) years commencing on the Installation Date, unless it is earlier terminated by
either party in accordance with the provisions herein. The term of this Use Agreement shall be
renewed automatically for three (3) successive terms of five (5) years each on the same terms
and conditions as set forth herein, unless Metricom notifies the Municipality of its intention not
to renew not less than thirty (30) calendar days prior to commencement of the relevant renewal
term.
3 SCOPE OF USE AGREEMENT. Any and all rights expressly granted to Metricom under
this Use Agreement, which shall be exercised at Metricom's sole cost and expense, shall be
subject to the prior and continuing right of the Municipality under applicable Laws to use any
and all parts of the Municipal Right of Way exclusively or concurrently with any other Person or
Persons and shall be further subject to all deeds, easements, dedications, conditions, covenants,
restrictions, encumbrances, and claims of title of record which may affect the Municipal Right of
Way. Nothing in this Use Agreement shall be deemed to grant, convey, create, or vest in
Metricom a real property interest in land, including any fee, leasehold interest, or easement. Any
work performed pursuant to the rights granted under this Use Agreement may, at the
Municipality's option, be subject to the reasonable prior review and approval of the
Municipality.
3.1 Attachment to Municipal Facilities. The Municipality hereby authorizes and
permits Metricom to enter upon the Municipal Right of Way and to locate, place,
attach, install, operate, maintain, remove, reattach, reinstall, relocate, and replace
Radios in or on Municipal Facilities for the purposes of operating Ricochet and
providing Services to Persons located within or without the limits of the
Municipality. In addition, subject to the provisions of § 4 below, Metricom shall
have the right to draw electricity for the operation of the Radios from the power
source associated with each such attachment to Municipal Facilities.
3.2 Attachment to Third - Party Property. Subject to obtaining the permission of the
owner(s) of the affected property, the Municipality hereby authorizes and permits
Metricom to enter upon the Municipal Right of Way and to attach, install, operate,
maintain, remove, reattach, reinstall, relocate, and replace such number of Radios
in or on poles or other structures owned by public utility companies or other
property owners located within the Municipal Right of Way as may be permitted
by the public utility company or property owner, as the case may be. Upon request,
Metricom shall furnish to the city documentation of such permission from the
individual utility or property owner responsible. Municipality agrees to cooperate
with Metricom, at no cost or expense to Municipality, in obtaining where necessary
the consents of third - party owners of property located in the Municipal Right of
Way.
3.3 No Interference. Metricom in the performance and exercise of its rights and
obligations under this Use Agreement shall not interfere in any manner with the
existence and operation of any and all public and private rights of way, sanitary
sewers, water mains, storm drains, gas mains, poles, ærial and underground
electrical and telephone wires, electroliers, cable television, and other
communications, utility, or municipal property, without the express written
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approval of the owner or owners of the affected property or properties, except as
permitted by applicable Laws or this Use Agreement. Municipality agrees to
require the inclusion of the same prohibition on interference as that stated above in
all agreements and franchises Municipality may enter into after the Effective Date
with other information or communications providers and carriers.
3.4 Compliance with Laws. Metricom shall comply with all applicable Laws in the
exercise and performance of its rights and obligations under this Use Agreement.
3.5 Obtaining Required Permits. If the attachment, installation, operation,
maintenance, or location of the Radios in the Municipal Right of Way shall require
any permits, Metricom shall, if required under applicable Municipality ordinances,
apply for the appropriate permits and pay any standard and customary permit fees.
Municipality shall promptly respond to Metricom's requests for permits and shall
otherwise cooperate with Metricom in facilitating the deployment of Ricochet in
the Municipal Right of Way in a reasonable and timely manner. The proposed
locations of Metricom’s planned initial installation of Radios shall be provided to
the Municipality promptly after Metricom’s review of available street light maps
and prior to deployment of the Radios.
3.6 Notice of Location of Radios. Upon the completion of installation, Metricom
promptly shall furnish to the Municipality suitable documentation showing the
exact location of the Radios in the Municipal Right of Way.
4 COMPENSATION; DISCOUNTS; UTILITY CHARGES. Metricom shall be solely
responsible for the payment of all lawful Fees in connection with Metricom’s
performance under this Use Agreement, including those set forth below.
4.1 Annual Fee. As compensation for the use of Municipal Facilities (including
Municipal Facilities which the Municipality may acquire in the future if the
Municipality does not currently own such facilities), Metricom shall pay to the
Municipality an annual fee (the "Annual Fee") in the amount of Sixty Dollars
($60.00) for the use of each Municipal Facility upon which a Radio has been
installed pursuant to this Use Agreement. Notwithstanding the foregoing, if a third
party or utility co - owner of Municipal Facilities or other structures to which
Municipal Facilities may be attached ("Joint Municipal Facilities") requests
payment for Metricom’s use of Joint Municipal Facilities pursuant to this Use
Agreement, the Annual Fee payable to the Municipality hereunder shall be reduced
in proportion to the amount of any payments which Metricom makes to such third
party or utility co - owner. The aggregate Annual Fee with respect to each year of
the term shall be an amount equal to the number of Radios installed on Municipal
Facilities and/or Joint Municipal Facilities, as the case may be during 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 Installation Date.
4.1.1 CPI Adjustment. Effective commencing on the fifth (5th ) anniversary of the
Installation Date and continuing on each fifth (5th ) anniversary thereafter during
the term, the Annual Fee with respect to the ensuing five - year period shall be
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adjusted by a percentage amount equal to the percentage change in the U.S.
Department of Labor, Bureau of Labor Statistics Consumer Price Index (All Items,
All Consumers, 1982 - 1984=100) which occurred during the previous five - year
period for the Northeast Urban Region Consolidated Metropolitan Statistical Area.
4.2 Electricity Charges. Metricom shall be solely responsible for the payment of all
electrical utility charges to the applicable utility company based upon the Radios'
usage of electricity and applicable tariffs.
4.3 Municipal Subscriber Program. In consideration of Municipality’s execution and
delivery of this Use Agreement, Municipality shall have the right throughout the
term of this Use Agreement to ten (10) free Ricochet basic service subscriptions.
The number of free subscriptions which the Municipality may receive shall be
determined in accordance with Metricom’s Municipal Subscriber Program at the
time of execution of this Use Agreement, the Municipality’s official population (as
shown on the latest available census data), as well as other considerations,
including the terms and conditions of this Use Agreement. Municipality shall
designate one person who 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 Department at the address stated in § 7
below. Municipality’s right to use the subscriptions shall commence at the time that
Ricochet service is commercially available in the Municipality and shall extend
until the expiration of the term of this Use Agreement or through the length of time
that Radios are deployed in the Municipal Right of Way, whichever is longer.
Municipality’s use of the subscriptions shall be subject to the standard Ricochet
terms and conditions of use. Municipality understands and agrees that modems and
equipment required to utilize the subscriptions and any additional service
subscriptions or service options the Municipality may desire may be obtained from
an authorized retailer at market rates current from time to time. Municipality shall
use all subscriptions provided pursuant to 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 person, excepting a local public entity that provides public service within the
corporate boundaries of the Municipality (e.g., municipal schools, public safety, or
fire departments, etc.). The level of benefits and service provided to Municipality
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 cancellation or termination,
as the case may be.
4.4 Reimbursement of Municipality’s Recurring Costs and Expenses. Pursuant to
and as allowed for in N.J.S.A. 54:30A - 124, Metricom shall reimburse the
Municipality for Municipality’s recurring costs and expenses in providing actual
services to administer this Use Agreement and the deployment of Radios in the
Municipal Right - of - Way hereunder. The parties hereto agree that a reasonable
fixed annual reimbursement for such costs and expenses shall be One Thousand
Five Hundred Dollars (1,500.00), which annual amount shall be payable no later
than the 45 th day after the date that Metricom first provides Services to
commercially paying subscribers within the Municipality using Radios installed
pursuant to this Use Agreement and the 45 th day after the start of each calendar
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year thereafter or fraction thereof. Such amount shall be prorated for any short
calendar year at the commencement, termination or expiration of this Use
Agreement. The parties further agree that such reimbursement shall compensate
Municipality for all expenses relating to this Agreement, except for costs and
expenses specifically identified as payable by Metricom under this Agreement. The
reimbursement provided for in this § 4.4 shall not replace or excuse Metricom from
the payment of any applicable Municipality permit fee for work undertaken in
connection with this Use Agreement. In the event New Jersey law and
Municipality’s law are changed as explained in the first two sentences of § 4.5
below, then, upon the next anniversary of the annual reimbursement set forth in
this § 4.4 following such change in New Jersey law, Metricom shall reimburse the
Municipality for administrative expenses and for the use of the Municipal Right of
Way exclusively through the terms of § 4.5 and its subsections, and this § 4.4 shall
no longer have effect.
4.5 Right - of - Way Fees. The parties hereto acknowledge and agree that, as of the
Effective Date, New Jersey law does not permit Municipality to charge a fee for
use of the Municipal Right - of - Way. The parties further agree that, in the event
New Jersey law is modified to allow imposition of such a fee by Municipality, and
Municipality formally incorporates this law into the Municipal code if necessary
under state law, then and only then, pursuant to the procedure set forth in § 4.4
above, the provisions of this § 4.5, and its subsections, shall apply, to the extent
consistent with applicable law. In order to reimburse Municipality for any costs it
may incur in connection with Metricom’s entry upon and deployment within the
Municipal Right of Way, Metricom shall pay to the Municipality, on an annual
basis, an amount equal to five percent (5%) (or, if lesser, the maximum percentage
allowed under New Jersey law) of Metricom’s Gross Revenues, as defined below,
(the "Right - of - Way Fee") which amount will be collected from subscribers of the
Services with billing addresses in the Municipality and remitted to Municipality as
provided herein. The compensation provided under this § shall be payable
annually, on or before the 45 th
day after the start of each calendar year following
notification by Municipality to Metricom, or by Metricom to Municipality, that a
Right - of - Way Fee is allowed under New Jersey law, and on or before the 45 th
day
after the start of each calendar year thereafter, or fraction thereof, prorated as
appropriate. The payment of said Right - of - Way Fee shall commence only if and
when the Reimbursement of Municipality’s Recurring Costs and Expenses under §
4.4 ceases and shall continue to be paid, as set forth above, until the date of
termination of this Use Agreement. Within forty - five (45) days after the
termination of this Use Agreement, compensation shall be paid for the period
elapsing since the end of the last calendar year for which compensation has been
paid. Metricom shall furnish to the Municipality with each payment of
compensation required by this section a statement, executed by an authorized
officer of Metricom or his or her designee, showing the amount of Gross Revenues
for the period covered by the payment. If Metricom discovers that it has failed to
pay the entire or correct amount of compensation due, the Municipality shall be
paid by Metricom within thirty (30) days of discovery of the error or determination
of the correct amount. Any overpayment to the Municipality through error or
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otherwise shall be refunded or offset against the next payment due from Metricom.
Acceptance by the Municipality of any payment due under this section shall not be
deemed to be a waiver by the Municipality of any breach of this Use Agreement
occurring prior thereto, nor shall the acceptance by the Municipality of any such
payments preclude the Municipality from later establishing that a larger amount
was actually due or from collecting any balance due to the Municipality.
4.5.1 Gross Revenues. "Gross Revenues" means the gross dollar amount
received by Metricom for its Services (as defined in § 1.14 above) provided
to subscribers with billing addresses in the Township, excluding (i) the
Right - of - Way Fee, if any, payable pursuant to § 4.5 et seq. below and any
utility users' tax, communications tax, or similar 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 the Township that was previously
included in Gross Revenues.
4.5.2 Reduction of Right - of - Way Fee by Amount of Utility Users or
Telecommunications Tax. Notwithstanding anything to the contrary in
this Use Agreement, if the Services are subject to a utility users tax,
telecommunications tax, or other similar tax or fee by operation of the
Municipality’s Municipal Code or other applicable law, then the amount of
the Right - of - Way Fee shall be reduced by the amount of the applicable
utility users tax, telecommunications tax, or such other similar tax or fee.
4.5.3 Accounting Matters. Metricom shall keep accurate books of account
at its principal office in Los Gatos or such other location of its choosing for
the purpose of determining the amounts due to the Municipality under § 4.5
above. The Municipality may inspect Metricom’s books of account relative
to the Municipality at any time during regular business hours on fifteen
(15) business days' prior written notice and may audit the books from time
to time at the Municipality’s sole expense, but in each case only to the
extent necessary to confirm the accuracy of payments due under this § 4.5
above. Municipality agrees to hold in confidence any non - public
information it learns from Metricom to the fullest extent permitted by Law.
5 RELOCATION OF RADIOS. Metricom understands and acknowledges that Municipality
may require Metricom to relocate one or more of its Radios, and Metricom shall at
Municipality’s direction relocate such Radios at Metricom’s sole cost and expense, whenever
Municipality reasonably determines that the relocation is needed for any of the following
purposes: (a) if required for the construction, completion, repair, relocation, or maintenance of a
Municipality project; (b) because the Radio is interfering with or adversely affecting proper
operation of Municipality - owned light poles, traffic signals, or other Municipal Facilities; or (c)
to protect or preserve the public health or safety. In any such case, Municipality shall use its best
efforts to afford Metricom a reasonably equivalent alternate location. If Metricom shall fail to
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relocate any Radios as requested by the Municipality within a reasonable time under the
circumstances in accordance with the foregoing provision, Municipality shall be entitled to
relocate the Radios at Metricom’s sole cost and expense, without further notice to Metricom.
5.1 Relocations at Metricom’s Request. In the event Metricom desires to relocate any
Radios from one Municipal Facility to another, Metricom shall so advise
Municipality. Municipality will use its best efforts to accommodate Metricom by
making another reasonably equivalent Municipal Facility available for use in
accordance with and subject to the terms and conditions of this Use Agreement.
5.2 Damage to Municipal Right of Way. Whenever the removal or relocation of
Radios is required or permitted under this Use Agreement, and such removal or
relocation shall cause the Municipal Right of Way to be damaged, Metricom, at its
sole cost and expense, shall promptly repair and return the Municipal Right of Way
in which the Radios are located to a safe and satisfactory condition in accordance
with applicable Laws, normal wear and tear excepted. If Metricom does not repair
the site as just described, then the Municipality shall have the option, upon fifteen
(15) days' prior written notice to Metricom, to perform or cause to be performed
such reasonable and necessary work on behalf of Metricom and to charge
Metricom for the proposed costs to be incurred or the actual costs incurred by the
Municipality at Municipality’s standard rates. Upon the receipt of a demand for
payment by the Municipality, Metricom shall promptly reimburse the Municipality
for such costs.
6 INDEMNIFICATION AND WAIVER. Metricom agrees to indemnify, defend, protect, and
hold harmless the Municipality, its council members, officers, and employees from and against
any and all claims, demands, losses, damages, liabilities, fines, charges, penalties, administrative
and judicial proceedings and orders, judgements, remedial actions of any kind, all costs and
cleanup actions of any kind, and all costs and expenses incurred in connection therewith,
including reasonable attorney’s fees and costs of defense (collectively, the "Losses") directly or
proximately resulting from Metricom’s activities undertaken pursuant to this Use Agreement,
except to the extent arising from or caused by the negligence or willful misconduct of the
Municipality, its council members, officers, employees, agents, or contractors.
6.1 Waiver of Claims. Metricom waives any and all claims, demands, causes of
action, and rights it may assert against the Municipality on account of any loss,
damage, or injury to any Radio or any loss or degradation of the Services as a
result of any event or occurrence which is beyond the reasonable control of the
Municipality.
6.2 Limitation of Municipality’s Liability. The Municipality shall be liable only for
the cost of repair to damaged Radios arising from the negligence or willful
misconduct of Municipality, its employees, agents, or contractors.
7 INSURANCE. Metricom shall obtain and maintain at all times during the term of this Use
Agreement Commercial General Liability insurance and Commercial Automobile Liability
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insurance protecting Metricom in an amount not less than One Million Dollars ($1,000,000) per
occurrence (combined single limit), including bodily injury and property damage, and in an
amount not less than One Million Dollars ($1,000,000) annual aggregate for each personal injury
liability and products - completed operations. The Commercial General Liability insurance policy
shall name the Municipality, its council members, officers, and employees as additional insureds
as respects any covered liability arising out of Metricom’s performance of work under this Use
Agreement. Coverage shall be in an occurrence form and in accordance with the limits and
provisions specified herein. Claims - made policies are not acceptable. Such insurance shall not be
canceled, nor shall the occurrence or aggregate limits set forth above be reduced, until the
Municipality has received at least thirty (30) days' advance written notice of such cancellation or
change. Metricom shall be responsible for notifying the Municipality of such change or
cancellation.
7.1 Filing of Certificates and Endorsements. Prior to the commencement of any
work pursuant to this Use Agreement, Metricom shall file with the Municipality the
required original certificate(s) of insurance with endorsements, which shall state
the following:
(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;
(b) that the Municipality 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
Municipality may possess, including any self - insured retentions the
Municipality may have; and any other insurance the Municipality does
possess shall be considered excess insurance only and shall not be required
to contribute with this insurance; and
(d) (that Metricom’s Commercial General Liability insurance policy waives
any right of recovery the insurance company may have against the
Municipality.
The certificate(s) of insurance with endorsements and notices shall be mailed to the
Municipality at the address specified in § 7.
7.2 Workers' Compensation Insurance. Metricom shall obtain and maintain at all
times during the term of this Use Agreement statutory workers' compensation and
employer’s liability insurance in an amount not less than One Million Dollars
($1,000,000) and shall furnish the Municipality 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 New Jersey and shall carry a minimum
rating assigned by A.M. Best & Company’s Key Rating 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 certificates
issued by non - admitted insurance companies are not acceptable.
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7.4 Severability of Interest. Any deductibles or self - insured retentions must be stated
on the certificate(s) of insurance, which shall be sent to and approved by the
Municipality. "Severability of interest" or "separation of insureds" clauses shall be
made a part of the Commercial General Liability and Commercial Automobile
Liability policies.
8 NOTICES. All notices which shall or may be given pursuant to this Use Agreement shall be
in writing and delivered personally or transmitted (a) through the United States mail, by
registered or certified mail, postage prepaid; (b) by means of prepaid overnight delivery service;
or (c) by facsimile or email transmission, if a hard copy of the same is followed by delivery
through the U. S. mail or by overnight delivery service as just described, addressed as follows:
if to the Municipality:
MUNICIPALITY OF [NAME OF MUNICIPALITY] Attn: [NAME OF CONTACT]
[ADDRESS]
[Name of Municipality], NJ [ZIP]
if to Metricom: METRICOM, INC. Attn: Property Manager
980 University Avenue
Los Gatos, CA 95032
8.1 Date of Notices; Changing Notice Address. Notices shall be deemed given upon
receipt in the case of personal delivery, three (3) days after deposit in the mail, or
the next day in the case of facsimile, email, or overnight delivery. Either party may
from time to time designate any other address for this purpose by written notice to
the other party delivered in the manner set forth above.
9 TERMINATION. This Use Agreement may be terminated by either party upon forty five (45)
days' prior written notice to the other party upon a default of any material covenant or term
hereof by the other party, which default is not cured within forty - five (45) days of receipt of
written notice of default (or, if such default is not curable within forty - five (45) days, if the
defaulting party fails to commence such cure within forty - five (45) days or fails thereafter
diligently to prosecute such cure to completion), provided that the grace period for any monetary
default shall be ten (10) days from receipt of notice. Except as expressly provided herein, the
rights granted under this Use Agreement are irrevocable during the term.
10 ASSIGNMENT. This Use Agreement shall not be assigned by Metricom without the express
written consent of the Municipality, which consent shall not be unreasonably withheld,
conditioned, or delayed. Notwithstanding the foregoing, the transfer of the rights and obligations
of Metricom hereunder to a parent, subsidiary, successor, or financially viable affiliate shall not
be deemed an assignment for the purposes of this Use Agreement.
11 Bond. Prior to the commencement of any work under this Use Agreement, Metricom shall
furnish or cause to be furnished to the Borough a good and sufficient bond, substantially in the
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form attached hereto as Exhibit A entitled Surety Bond, in the amount of Two Thousand Five
Hundred Dollars ($2,500), as security for the faithful performance by Metricom of the
provisions of this Agreement.
12 Reimbursement of Attorney's Fees. Metricom shall reimburse the city for all reasonable
attorney's fees relating to the preparation, issuance, and implementation of this Use Agreement,
up to a maximum of Two Thousand Dollars ($2,000.00) promptly upon receipt of bills, paid
invoices, and such other documentation as Metricom shall reasonably require. The
reimbursement provided for in this § 12 shall not replace or excuse Metricom from the payment
of any applicable city permit fee for work undertaken in connection with this Use Agreement.
13 Most - Favored Municipality Clause. Should Metricom after the parties' execution and
delivery of this Use Agreement enter into an attachment permit agreement with another
municipality of the same size or smaller than the city in the New Jersey Metropolitan Statistical
Area which agreement contains financial benefits for such municipality which, taken as a whole
and balanced with the other terms of such agreement, are in the city’s opinion substantially
superior to those in this Use Agreement, 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 and burdens by substitution, mutatis mutandis, of such other agreement or
otherwise.
14 MISCELLANEOUS PROVISIONS. The provisions which follow shall apply generally to
the obligations of the parties under this Use Agreement.
14.1 Nonexclusive Use. Metricom understands that this Use Agreement does not
provide Metricom with exclusive use of the Municipal Right of Way or any
Municipal Facility and that Municipality shall have the right to permit other
providers of communications services to install equipment or devices in the
Municipal Right of Way and on Municipal Facilities; however, Municipality agrees
promptly to notify Metricom of the receipt of a proposal for the installation of
communications equipment or devices in the Municipal Right of Way or on
Municipal Facilities. In addition, Municipality agrees to advise other providers of
communications services of the presence or planned deployment of the Radios in
the Municipal Right of Way and/or on Municipal Facilities.
14.2 Amendment of Use Agreement. This Use Agreement may not be amended except
pursuant to a written instrument signed by both parties.
14.3 Severability of Provisions. If any one or more of the Provisions of this Use
Agreement shall be held by court of competent jurisdiction in a final judicial action
to be void, voidable, or unenforceable, such Provision(s) shall be deemed severable
from the remaining Provisions of this Use Agreement and shall not affect the
legality, validity, or constitutionality of the remaining portions of this Use
Agreement. Each party hereby declares that it would have entered into this Use
Agreement and each Provision hereof irrespective of the fact that any one or more
Provisions be declared illegal, invalid, or unconstitutional.
14.4 Contacting Metricom. Metricom shall be available to the staff employees of any
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Municipality department having jurisdiction over Metricom’s activities twenty - four
(24) hours a day, seven (7) days a week, regarding problems or complaints
resulting from the attachment, installation, operation, maintenance, or removal of
the Radios. The Municipality may contact by telephone the network control center
operator at telephone number (800) 873 - 3468 regarding such problems or
complaints.
14.5 Governing Law; Jurisdiction. This Use Agreement shall be governed and
construed by and in accordance with the laws of the State of New Jersey, without
reference to its conflicts of law principles. If suit is brought by a party to this Use
Agreement, the parties agree that trial of such action shall be vested exclusively in
the state courts of New Jersey, County of [Name of County], or in the United
States District Court for the District of New Jersey.
14.6 Attorneys' Fees. Should any dispute arising out of this Use Agreement lead to
litigation, the prevailing party shall be entitled to recover its costs of suit, including
reasonable attorneys' fees.
14.7 Exhibits. All exhibits referred to in this Use Agreement and any addenda,
attachments, and schedules which may from time to time be referred to in any duly
executed amendment to this Use Agreement are by such reference incorporated in
this Use Agreement and shall be deemed a part of this Use Agreement.
14.8 Successors and Assigns. This Use Agreement is binding upon the successors and
assigns of the parties hereto.
14.9 Advice of Displacement. To the extent the Municipality has actual knowledge
thereof, the Municipality will attempt promptly to inform Metricom of the
displacement or removal of any pole on which any Radio is located.
14.10 Consent Criteria. In any case where the approval or consent of one party hereto is
required, requested or otherwise to be given under this Use Agreement, such party
shall not unreasonably delay, condition, or withhold its approval or consent.
14.11 Waiver of Breach. The waiver by either party of any breach or violation of any
Provision of this Use Agreement shall not be deemed to be a waiver or a continuing
waiver of any subsequent breach or violation of the same or any other Provision of
this Use Agreement.
14.12 Representations and Warranties. Each of the parties to this Agreement
represents and warrants that it has the full right, power, legal capacity, and
authority to enter into and perform the parties' respective obligations hereunder and
that such obligations shall be binding upon such party without the requirement of
the approval or consent of any other person or entity in connection herewith, except
as provided in § 3.2 above. In addition, Municipality specifically represents and
covenants that Municipality owns all Municipal Facilities for the use of which it is
collecting from Metricom the Annual Fee pursuant to § 4.1 above, if any.
14.13 Entire Agreement. This Use Agreement contains the entire understanding between
the parties with respect to the subject matter herein. There are no representations,
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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.
In witness whereof , and in order to bind themselves legally to the terms and conditions of this
Use Agreement, the duly authorized representatives of the parties have executed this Use
Agreement as of the Effective Date.
Municipality: MUNICIPALITY OF [NAME OF MUNICIPALITY] , a New Jersey
municipal corporation
By:__________________________________________________
[name typed]
Its:__________________________ Date: ______, [Year of agreement
Date]
Metricom: By:__________________________________________________
[name typed]
Its:__________________________ Date:________, [Year of agreement
Date]
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[EXHIBIT A]
[FORM OF SURETY BOND]
Bond Number:_______________
SURETY BOND
KNOW ALL MEN BY THESE PRESENTS:
That METRICOM, INC. as Principal, and _______________________, incorporated under the
laws of the State of ___________________, and authorized to execute bonds and undertakings
as sole surety, are held and firmly bound unto _________________________, as Obligee, in the
sum of ______________________ ($______________); for the payment thereof, well truly to
be made, said Principal and Surety bind themselves, their administrators, successors and assigns,
jointly and severally, firmly by these presents.
The condition of the foregoing obligation is such that:
WHEREAS, the above bounden Principal is about to enter into a certain agreement with the
Obligee for the following: _____________________________________________, the award of
which said agreement was made to the Principal by the Obligee, on ___________.
NOW THEREFORE, if the Principal shall well, truly and faithfully perform its duties, all the
undertakings, covenants, terms, conditions, and provisions of said 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 he shall satisfy all claims and demands incurred under such
agreement, and shall fully indemnify and save harmless the Obligee from all costs and damages
which it may suffer by reason of failure to do so, and shall reimburse and repay the Obligee all
outlay and expenses which the 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 the said Surety, for value received, hereby stipulates and agrees
that no change, extension of time, alteration or addition to the terms of the agreement or to the
work to be performed thereunder or the specifications accompanying the same shall in any way
affect its obligation on this bond, and it does hereby waive notice of any such change, extension
of time, alteration or addition to the terms of the agreement or to the work or to the
specifications.
PROVIDED, HOWEVER, this bond is issued subject to the following express conditions:
1. This bond shall be deemed continuous in form and shall remain in full force and effect until
this Agreement is terminated pursuant to Paragraph 9, after which all liability ceases except as to
any liability incurred or accrued prior to the date of such cancellation.
2. The aggregate liability of the Surety hereunder on all claims whatsoever shall not exceed the
penal sum of this bond in any event.
3. The surety reserves the right to withdraw as surety from this bond, except as to any liability
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incurred or accrued, and may do so upon giving the Obligee sixty (60) days written notice.
SIGNED AND SEALED this _________ day of ________________, 20____.
PRINCIPAL
__________________________
By: _________________
Title:
By: _________________ SURETY
________________________
(Type Company Name)
By: _________________
Title:
Address: _______________________
_________________________
Telephone: _______________
(Affix Corporate Seals)
(Attach Acknowledgements of both Principal and Surety Signatures
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