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HomeMy WebLinkAboutOrdinances (O-99-1160)-04/20/1999 ORDINANCE NO. 0-99-1160 AN ORDINANCE TO GRANT A FRANCHISE TO METRICOM, INC. FOR THE USE OF CITY PUBLIC RIGHTS-OF-WAY FOR CONSTRUCTION AND OPERATION OF A COMMUNICATION SYSTEM FOR A TERM OF THREE YEARS, PROVIDING SEVERABILITY, AND ESTABLISHING AN EFFECTIVE DATE, WHEREAS, the City of Colleyville, State of Texas (hereinafter referred to as the "City"), has determined that the financial, legal, and technical ability of METRICOM INC. ("METRICOM") is reasonably sufficient to provide services, facilities, and equipment necessary for a state of the art wireless and wired tele- communication system. NOW THEREFORE BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF COLLEYVILLE, TEXAS, Sec. 1 THAT for the purpose of this Franchise, the following terms, phrases, words, and abbreviations shall have the meanings ascribed to them below. When not inconsistent with the context, words used in the present tense include the future tense, words in the plural number include the singular number, and words in the singular number include the plural number: a. "Affiliate" means an entity, which owns or controls, is owned or controlled by, or is under common ownership with Grantee. b. "Communication Service" shall mean any wireless communication services provided by Grantee over its "Communication System" (as hereinafter defined). Communication Service shall not include cable television services or an open video system as defined under the federal law or local exchange telephone service or other certificated telecommunications services, as certificated by the Public Utility Commission for which a separate franchise would be required to provide such services. c. "Communication System" shall mean Grantee's Richochet microcellular data transmission system of poletop radio receivers/transmitters, modems, and any associated converters, equipment or facilities designed and constructed for the purpose of producing, receiving, amplifying or Ordinance 0-99-1160 Metricom Right-of-Way Ordinance Page 2 of 19 distributing data packets by forms of electronic or electric signals to or from subscribers or locations within the City. d. "FCC" means Federal Communications Commission, or successor governmental entity thereto. e. "Franchise" shall mean the initial authorization, or renewal thereof, issued by the Franchising Authority, whether such authorization is designated as a franchise, permit, license, resolution, contract, certificate, or otherwise, which authorizes construction and operation of the Communication System for the purpose of offering Communication Services to Subscribers. f. "Franchise Authority" means the City or the lawful successor, transferee, or assignee thereof. g. "Grantee" means METRICOM, INC., a Delaware corporation, or the lawful successor, transferee, or assignee thereof, with the consent as required in this agreement. h. "Gross Revenue" shall mean all receipts collected by Grantee from customers with billing addresses to include zip code plus four digits within the corporate limits of the City for all communications and communication-related operations and services within the corporate limits of the City as well as any other revenue arising from operation or possession of this Franchise. By way of example, but without limitation, "Gross Revenue" includes all revenues from the sale or lease of customer premise equipment, installation charges, access charges paid to Grantee by other carriers, charges to customers, subscribers and other users of the Communication System, franchise fees and occupation taxes surcharged to customers, and the lease or re-sale of lines or circuit paths to third parties. "Gross Revenue" does not include (i) revenues uncollectible from customers (bad debts), (ii) discounts, (iii) state, local, or federal taxes, or (iv) the franchise fee payable to the City pursuant to Section 4, b, (i) below. Ordinance 0-99-1160 Metricom Right-of-Way Ordinance Page 3 of 19 I. "Person" means an individual, partnership, association, joint stock company, trust corporation, or governmental entity. J. "Public Way" shall mean the surface of, and the space above and below, any public street, highway, freeway, bridge, land path, alley, court, boulevard, sidewalk, parkway, lane, public way, drive, circle, or other public right-of-way, including, but not limited to, public utility easements, dedicated utility strips, or rights-of-way dedicated for compatible uses and any temporary or permanent fixtures or improvements located thereon now or hereafter held by the Franchise Authority in the Service Area which shall entitle the Franchise Authority and Grantee to the use thereof for the purpose of installing, operating, repairing, and maintaining the Communication System. Public Way shall also mean any easement now or hereafter held by the Franchise Authority within the Service Area for the purpose of public travel, or for utility or public service use dedicated for compatible uses, and shall include other easements or rights-of way as shall within their proper use and meaning entitle the Franchise Authority and Grantee to the use thereof for the purposes of installing or transmitting Grantee's Communication Services over poles, wires, cables, conductors, ducts, conduits, vaults, manholes, amplifiers, appliances, attachments, and other property as may be ordinarily necessary and pertinent to the Communication System. k. "Service Area" means the present municipal boundaries of the Franchise Authority, and shall include any additions thereto by annexation or other legal means. I. "Subscriber" or "Customer" means a person or user of the Communication System with a billing address within the corporate limits of the City, who lawfully receives Communication Services or other service therefrom with Grantee's express permission. Sec. 2. Ordinance 0-99-1160 Metricom Right-of-Way Ordinance Page 4 of 19 THAT the City hereby grants to Grantee a nonexclusive Franchise which authorizes Grantee to construct and operate its Communication System and offer Communication Services in, along, among, upon, across, above, over, under, or in any manner connected with Public Ways within the Service Area and for that purpose to erect, install, construct, repair, replace, reconstruct, maintain, or retain in, on, over, under, upon, across, or along any Public Way and all extensions thereof and additions thereto, such wires, cables, conductors, conduits, amplifiers, appliances, attachments and other related property or equipment as may be necessary or appurtenant to the Communication System. a. LIMITED GRANT. This grant of authority to provide the services described herein shall be limited solely to those services expressly described and no others. In the event of any ambiguity, this agreement shall be strictly construed as to the rights granted herein. b. DUTY TO NOTIFY OF CHANGE. Grantee represents that the Communication System will be utilized exclusively for the rendering of Communication Services. If the nature or character of Communication Services changes in any manner in the future to include the offering of telecommunication or other services not expressly permitted under this Franchise or if there is an increase in the size or number of any poletop radio transmitter/receiver (or like above-ground apparatus) than was contemplated in the adoption of this Franchise, as described in the application, then Grantee shall notify the City in writing as soon as practicable. Such notice shall be served at least sixty (60) days prior to the effective date of any change in the nature or character of the Communication Services or in the poletop radios (or like above-ground apparatus). c. COMPLIANCE WITH CITY REQUIREMENTS. Except as expressly provided otherwise herein, Grantee shall comply with all applicable City ordinances, resolutions, standards and procedures, as now or hereafter adopted, to the same extent as any other person or entity doing business within the City. Sec. 3 Ordinance 0-99-1160 Metricom Right-of-Way Ordinance Page 5 of 19 d. TERM. The Franchise granted pursuant to this Franchise shall be for an initial term of three (3) years from the effective date of the Franchise as set forth in Section 2, e, unless otherwise lawfully terminated in accordance with the terms of this Franchise. Grantee shall have the option to renew the term of this Franchise for two (2) additional terms of three (3) years each by giving written notice of exercise to the City not less than ninety (90) days prior to the expiration of the initial term or relevant renewal term, as the case may be, provided that the Grantee is not in default and is in strict compliance hereof. e. ACCEPTANCE: EFFECTIVE DATE. Grantee shall accept the Franchise granted pursuant hereto by signing this Franchise and filing same with the City Secretary or other appropriate official or agency of the Franchise Authority within thirty (30) days after the passage and final adoption of this Franchise. Subject to the acceptance by Grantee, the effective date of this Franchise shall be the thirtieth (30th) day after its passage. If not accepted within thirty (30) days, this agreement shall be null and void and have no effect and no franchise shall exist between METRICOM and the City. THAT the regulations of the use of public ways shall be as follows: a. CONDITIONS OF STREET OCCUPANCY. All transmission and distribution structures, poles, other lines, and equipment installed or erected by Grantee pursuant to the terms hereof shall be located so as to cause a minimum of interference with the proper use of Public Ways and with the rights and reasonable convenience of property owners who own property that adjoins any of said Public Ways. I. APPROVAL OF PLANS AND SPECIFICATIONS. Grantee shall provide complete plans and specifications for all construction within streets to the designated City officials for their review at least thirty (30) days prior to the start of any construction during Ordinance 0-99-1160 Metricom Right-of-Way Ordinance Page 6 of 19 the term of this Franchise. In the event of rejection, Grantee shall submit revised plans and specifications for approval. This provision shall apply to each construction sequence if the construction is accomplished in phases. All such construction shall comply with all applicable ordinance(s), including ordinances which may be adopted after the date of this Franchise, all applicable ordinances shall include, but are not limited to, building and fire codes and zoning regulations. Such construction and this Franchise shall be expressly subject to all deeds, easements, dedications, conditions, covenants, restrictions and encumbrances which may affect the Public Ways. II. MAPS. Upon written request of the City, Grantee shall provide the City with a map (of general specificity) showing the approximate location of major components of Grantee's Communication System within the City. Upon written request of the City, Grantee shall update such map to reflect actual or anticipated improvements to the system. Any such map (or update thereof) so submitted shall be for informational purposes only and shall not obligate Grantee to undertake any specific improvements, nor shall such map be construed as a proposal to undertake any specific improvements. Grantee shall submit such map (and updates thereof) to the City in "GIS" format, unless such map (or updates thereof) cannot be prepared in a commercially reasonable manner in such format. b. RESTORATION OF PUBLIC WAYS. If during the course of Grantee's construction, operation, or maintenance of the Communication System there occurs a disturbance of any Public Way by Grantee, it shall, at its expense, replace and restore such Public Way to a condition reasonably comparable to the condition of the Public Way existing immediately prior to such disturbance. Ordinance 0-99-1160 Metricom Right-of-Way Ordinance Page 7 of 19 c. RELOCATION AT REQUEST OF FRANCHISE AUTHORITY. Upon its receipt of reasonable advance notice, not to be less than thirty (30) business days, Grantee shall, at its own expense, protect, support, temporarily disconnect, relocate in the Public Way, or remove from the Public Way, any property of Grantee when required by Franchise Authority by reason of traffic conditions, public safety, street abandonment, freeway and street construction, change or establishment of street grade, installation of sewers, drains, gas or water pipes, or any other type of structures or improvements by the Franchise Authority; but, Grantee shall in all cases have the right of abandonment of its property. d. RELOCATION AT REQUEST OF THIRD PARTY. Grantee shall, on the request of any person holding a building moving permit issued by the Franchise Authority, temporarily raise or lower its wires to permit the moving of such building, provided; (a) the expense of such temporary raising or lowering of wires is paid by said person, including, if required by Grantee, making such payment in advance; and (b) Grantee is given not less than fourteen (14) business days advance written notice to arrange for such temporary wire changes. e. VEGETATION MANAGEMENT. Grantee and the City agree in principle to a line clearance standard that balances the aesthetic needs of the community while enhancing service reliability. Grantee's commitment is to respond promptly to the City identified tree-related hazards. Grantee shall reasonably compensate the property owner for any damages caused by such trimming, or shall, in its sole discretion and at its own cost and expense, reasonably replace all trees or shrubs damaged as a result of any construction of the System undertaken by Grantee. Such replacement shall satisfy any and all obligations Grantee may have to the property owner pursuant to the terms of this Section 3. Ordinance 0-99-1160 Metricom Right-of-Way Ordinance Page 8 of 19 f. SAFETY REQUIREMENTS. Construction, installation, and maintenance of the Communication System shall be performed in an orderly and workmanlike manner. All such work shall be performed in substantial accordance with applicable FCC or other federal, state, and local regulations. The Communication System shall not unreasonably endanger or interfere with the safety of persons or property in the Service Area. g. AERIAL AND UNDERGROUND CONSTRUCTION. In those areas of the Service Area where all of the transmission or distribution facilities of the respective public utilities providing telephone communications and electric services are underground, Grantee likewise shall construct, operate and maintain all of its transmission and distribution facilities underground; provided that such facilities are actually capable of receiving Grantee's Communication System equipment without technical degradation of the Communication System's signal quality. In those areas of the Service Area where the transmission or distribution facilities of the respective public utilities providing telephone communications, and electric services are both aerial and underground, Grantee shall construct, operate, and maintain all of its transmission and distribution facilities, or any part thereof underground. Nothing contained in this Section 3, g shall require Grantee to construct underground any ground-mounted appurtenances such as "poletop radio receivers/transmitters", amplifiers, power supplies, pedestals, or other related equipment, however such above-ground locations are subject to the review and approval of the City, including aesthetics. After such initial approval, relocation may only be requested in accordance with Section 3,d. Sec. 4. Ordinance 0-99-1160 Metricom Right-of-Way Ordinance Page 9 of 19 h. USE. RENTAL OR LEASE OF UTILITY POLES AND FACILITIES. I. There is hereby granted to Grantee the authority to contract with the City or any appropriate board or agency thereof or with the holder or owner of any utility franchise in the City for the use, rental or lease of its or their poles and other structures and facilities for the purpose of supporting or carrying Grantee's Radio wires, cables, electronic conductors and other facilities and appurtenances necessary or desirable in conjunction with the operation of its Communication System. The City agrees that any public utility owning or controlling such poles or structures may, without amendment to its franchise, allow, and is encouraged to allow, Grantee to make such use thereof pursuant to any agreement reached between such utility company and Grantee. ii. The City encourages the use of and Grantee may request space in the City-owned poles and structures as may be available; however, such permission is within the sole discretion of the City. THAT compensation to the City shall be as follows: a. ADMINISTRATIVE FEE. An administrative fee is assessed Grantee as consideration for the administrative processing cost incurred in the initial adoption of this Franchise, and for the continued monitoring and enforcement of same. Grantee agrees to pay the City an administrative fee of Two Thousand Dollars ($2,000) upon acceptance of the Ordinance (with a credit of $850.00 from the application fee). Nothing herein shall preclude the City from recovering any administrative costs incurred by the City in the approval of permits or in the supervision, inspection or examination of all work by Grantee in the Franchise Area as prescribed in accordance with applicable ordinances or laws. Ordinance 0-99-1160 Metricom Right-of-Way Ordinance Page 10 of 19 b. PUBLIC WAY USE FEE. FRANCHISE FEE AND LATE PAYMENT CHARGE. I. The City finds that the public streets, alleys and rights- of-way to be used by Grantee in the operation of its Communication System within the boundaries of the City are valuable public properties, acquired and maintained by the City at great expense to its taxpayers, and that the grant to Grantee of the use of said public streets, alleys and rights-of-way is a valuable Property right, without which Grantee would be required to invest substantial capital in right-of-way costs and acquisitions, therefore, Grantee agrees to pay to the City as general compensation for the use of the Public Way during each year of this Franchise ordinance, an amount equal to five percent (5%) of Gross Revenues or $125.00 as an on-going administrative fee, whichever is greater, as defined in Section 1 herein, for each quarter of each calendar year. II. Grantee shall pay an amount equal to this quarterly payment by the fifteenth (15th) day of the second calendar month immediately following the close of the calendar quarter for which the payment is calculated. Any necessary prorations shall be made in the first and last year of the Franchise. III. In the event any quarterly payment is made after noon on the date due, Grantee shall pay a late payment penalty of the greater of: (i) One Hundred Dollars ($100) or (ii) simple interest at a ten percent (10%) annual percentage rate on the total amount past due. iv. Grantee shall obtain on all billing addresses in the City the zip code plus four digits. Ordinance 0-99-1160 Metricom Right-of-Way Ordinance Page 11 of 19 c. QUARTERLY REPORT. In order to properly determine the Gross Revenues received by Grantee, Grantee agrees that on the same date that each quarterly payment is made, it will file with the Director of Finance a sworn copy of a report, in a form acceptable to the City, in sufficient detail to itemize revenues from each of the revenue categories. The City may, if it sees fit, have the books and records of Grantee examined by a representative of said City to ascertain the correctness of the reports agreed to be filed herein. Neither the acceptance of any payment nor any subsequent review shall be deemed an agreement by the City that the correct payment was paid, absent a fully authorized release by the City on any such payments or on such reports. d. RECALCULATION AT END OF COMPENSATION YEAR. At the end of each calendar year, Grantee shall recalculate the total general compensation actually due. If additional amounts are due the City by Grantee, said amounts shall be paid by the fifteenth (15th) day of February following the calendar year during which such amounts were originally due. If amounts are found to be due Grantee by the City, said amounts shall be credited by the fifteenth (15th) day of February during which such amounts were originally due. Any necessary prorations shall be made. e. TAXES ARE NOT TO BE A CREDIT. The compensation paid under this Franchise shall be exclusive of and in addition to all special assessments and taxes of whatever nature, including, but not limited to, ad valorem tax, sales tax, corporate or business occupation taxes or other taxes or fees imposed or levied by any governmental entity. 1. RIGHTS OF CITY. Payment of money under this Franchise shall not in any way limit or inhibit any of the privileges or rights of the City, whether under this Franchise or otherwise. g. ANNUAL REPORT. Grantee shall file annually with the Director of Finance no later than ninety (90) days after the end Sec. 5. Ordinance 0-99-1160 Metricom Right-of-Way Ordinance Page 12 of 19 of Grantee's fiscal year, a certified statement of revenues (for that year) attributable to the operations of Grantee's system, within the City pursuant to this Franchise ordinance. This statement shall present a detailed breakdown of Gross Revenues and uncollectible accounts for the year. h. CIRCUMVENTING PAYMENTS. Any transaction(s) which have the effect of circumventing payment of the required franchise fees and/or evasion of payment of franchise fees or any payments due the City under this Franchise by non- collection or non-reporting of Gross Revenues, bartering, or any other means which evade the actual collection of revenues for business pursued by Grantee are prohibited. i. TRANSFER OF FRANCHISE. Grantee's right, title, or interest in the Franchise shall not be sold, transferred, assigned, or otherwise encumbered, other than to an Affiliate, without the prior consent of the Franchise Authority, such consent not to be unreasonably withheld. No such consent shall be required, however, for a transfer in trust, by mortgage, by other hypothecation, or by assignment of any rights, title, or interest of Grantee in the Franchise or Communication System in order to secure indebtedness. THAT Grantee shall keep the City fully informed as to all matters in connection with or affecting the construction, reconstruction, removal, maintenance, operation and repair of Grantee's system, Grantee's accounting methods and procedures in connection therewith, and the recording and reporting by Grantee of all revenues and uncollectibles. Grantee shall report to the City such other information relating to Grantee as the City may consider useful and shall comply with the City's determination of forms for reports, the time for reports, the frequency with which any reports are to be made, and if reports are to be made under oath. a. ACCOUNTS. Grantee shall keep complete and accurate books of account and records of its business and operations pursuant to this Franchise ordinance in accordance with Sec. 6. Ordinance 0-99-1160 Metricom Right-of-Way Ordinance Page 13 of 19 generally accepted accounting principles, subject to review and approval by the City. The City may require the keeping of additional records or accounts which are reasonably necessary for purposes of identifying, accounting for, and reporting gross revenues and uncollectibles for purposes of Section 4 hereof. Grantee shall keep its books of account and records in such a way that breakdowns of revenues are available by type of service within the City. b. ACCESS TO RECORDS. Grantee shall provide the City with access at reasonable times and for reasonable purposes, to examine, audit, review and/or obtain copies of the papers, books, accounts, documents, maps, plans and other records of Grantee pertaining to this Franchise ordinance. Grantee shall fully cooperate in making available its records in Tarrant County, and otherwise assisting in these activities. c. INQUIRIES TO GRANTEE. City may, at any time, make inquiries pertaining to Grantee's operation of its System within City. Grantee shall respond to such inquiries on a timely basis. THAT the Insurance, Indemnification and Bonds or Other Surety shall be as follows: a. INSURANCE REQUIREMENTS. Grantee shall maintain in full force and effect, at its own cost and expense, during the term of the Franchise, Comprehensive General Liability Insurance in the amount of One Million Dollars ($1,000,000) combined single limit for bodily injury, and property damage. Said insurance shall designate the Franchise Authority as an additional insured. Such insurance shall be noncancellable except upon thirty (30) days prior written notice to the Franchise Authority. b. INDEMNIFICATION. Grantee agrees to indemnify, save and hold harmless, and defend the Franchise Authority, its officers, boards and employees from and against any liability for Sec. 7. Ordinance 0-99-1160 Metricom Right-of-Way Ordinance Page 14 of 19 damages and for any liability or claims resulting from property damage or bodily injury (including accidental death), which arise out of Grantee's construction, operation, or maintenance of its Communication System, including, but not limited to, reasonable attorney's fees and costs. Grantee further agrees not to oppose intervention by the City in such a suit, however, any intervention will be at the Franchise Authority's sole cost and expense. c. BONDS AND OTHER SURETY. Except as expressly provided herein, Grantee shall not be required to obtain or maintain bonds or other surety as a condition of being awarded the Franchise or continuing its existence. In order to minimize such costs, the Franchise Authority agrees to require bonds and other surety only in such amounts and during such times as there is a reasonably demonstrated need therefor. The Franchise Authority agrees that in no event, however, shall it require a bond or other related surety in an aggregate amount greater than Two Hundred Thousand Dollars ($200,000), conditioned upon the substantial performance of the material terms, covenants, and conditions of the Franchise. Initially, no bond or other surety will be required. In the event that one is required in the future, the Franchise Authority agrees to give Grantee at least thirty (30) days prior written notice thereof stating the reason for the requirement. Such reason must demonstrate a change in Grantee's legal, financial, or technical qualifications, which would materially prohibit or impair its ability to comply with the terms of the Franchise or afford compliance therewith. THAT Enforcement and Termination of Franchise shall be as follows: a. NOTICE OF VIOLATION. In the event that the Franchise Authority believes that Grantee has not complied with the terms of the Franchise, it shall notify Grantee in writing of the exact nature of the alleged noncompliance. Ordinance 0-99-1160 Metricom Right-of-Way Ordinance Page 15 of 19 b. GRANTEE'S RIGHT TO CURE OR RESPOND. Grantee shall have thirty (30) days from receipt of the notice described in 7, a: (1) to respond to the Franchise Authority contesting the assertion of noncompliance, (2) to cure such default, or (3) in the event that, by the nature of default, such default cannot be cured within the thirty (30) day period, initiate reasonable steps to remedy such default and notify the Franchise Authority of the steps being taken and the projected date that they will be completed. c. PUBLIC HEARING. In the event that Grantee fails to respond to the notice described in Section 7, a. pursuant to the procedures set forth in Section 7, b. or in the event that the alleged default is not remedied within thirty-one (31) days after Grantee is notified of the alleged default pursuant to Section 7, a. the Franchise Authority shall schedule a public meeting to investigate the default. Such public meeting shall be held at the next regularly scheduled meeting of the Franchise Authority which is scheduled at a time which is no less than five (5) business days therefrom. The Franchise Authority shall notify Grantee of the time and place of such meeting and provide Grantee with an opportunity to be heard. d. ENFORCEMENT. Subject to applicable federal and state law, in the event the Franchise Authority, after such meeting, determines that Grantee is in default of any provision of the Franchise, the Franchise Authority may: I. Foreclose on all or any part of any security provided under this Franchise, if any, including without limitation, any bonds or other surety; provided, however, the foreclosure shall only be in such a manner and in such amount as the Franchise Authority reasonably determines is necessary to remedy the default; ii. Commence an action at law for monetary damages or seek other equitable relief; Sec. 8. Ordinance 0-99-1160 Metricom Right-of-Way Ordinance Page 16 of 19 iii. In the case of a material breach of the Franchise, declare the Franchise Agreement to be revoked; or iv. Seek specific performance of any provision, which reasonably leads itself to such remedy, as an alternative to damages. Grantee shall not be relieved of any of its obligations to comply promptly with any provision of the Franchise by reason of any failure of the Franchise Authority to enforce prompt compliance. e. ACTS OF GOD. Grantee shall not be held in default or noncompliance with the provisions of the Franchise, nor suffer any enforcement or penalty relating thereto, where such noncompliance or alleged defaults are caused by strikes, acts of God, power outages, or other events reasonably beyond its ability to control. THAT miscellaneous provisions shall be as follows: a. ACTIONS OF FRANCHISE AUTHORITY. In any action by the Franchise Authority or representative thereof mandated or permitted under the terms hereof, such party shall act in a reasonable, expeditious, and timely manner. Furthermore, in any instance where approval or consent is required under the terms hereof, such approval or consent shall not be unreasonably withheld. b. NOTICE. Unless expressly otherwise agreed between the parties, every notice or response to be served upon the Franchise Authority or Grantee shall be in writing, and shall be deemed to have been duly given to the required party five (5) business days after having been posted in a properly sealed and correctly addressed envelope by certified or registered mail, postage prepaid, at a Post Office or branch thereof regularly maintained by the U.S. Postal Service. Ordinance 0-99-1160 Metricom Right-of-Way Ordinance Page 17 of 19 The notices or responses to the Franchise Authority shall be addressed as follows: Assistant City Manager City of Colleyville, Texas P.O. Box 185 Colleyville, Texas 76034-0185 The notices or responses to Grantee shall be addressed as follows: METRICOM, INC. Attn: Network Real Estate Department 980 University Avenue Los Gatos, CA 95032 Franchise Authority and Grantee may designate such other address or addresses from time to time by giving notice to the other. c. DESCRIPTIVE HEADINGS. The captions to sections contained herein are intended solely to facilitate the reading thereof. Such captions shall not affect the meaning or interpretation of the text herein. d. SEVERABILITY. If any section, sentence, paragraph, term, or provision hereof is determined to be illegal, invalid, or unconstitutional, by any court of competent jurisdiction or by any state or federal regulatory authority having jurisdiction thereof, such determination shall have no effect on the validity of any other section, sentence, paragraph, term or provision hereof, all of which will remain in full force and effect for the term of the Franchise, or any renewal or renewals thereof. e. ACTION BY THE FCC. In the event federal or state law or the FCC promulgates more stringent notice requirements, technical standards, consumer protection or consumer services requirements than are contained in this agreement, Ordinance 0-99-1160 Metricom Right-of-Way Ordinance Page 18 of 19 those more stringent requirements shall prevail. The franchising authority shall give reasonable notice when in their determination that has occurred. Grantee shall retain and not waive any or all rights and privileges as afforded either under this contract or pursuant to Federal Law or FCC regulations to complain and/or appeal such a determination. f. TELECOMMUNICATIONS PROVIDER SERVICES. Notwithstanding any other provision in this Franchise, in the event a state or federal agency or a court of competent jurisdiction determines that Metricom is a telecommunications provider under either federal or state law, which requires the Franchising Authority to treat them as other telecommunications providers in direct competition on a competitively-neutral basis, the City shall, upon sixty (60) days' notice, amend this agreement to incorporate the same terms that have been offered to other similarly situated telecommunications providers in the City limits of the Franchising Authority. AND IT IS SO ORDERED. The first reading and public hearing being conducted on the tat!, day of April 1999. The second reading and public hearing being conducted on the 2o~ day of April 1999. ATTEST: tJ~. City of Colleyville, Texas ~d~ Mayor Je Harris, TRMC, CMC City Secretary ~~FORM AND LEGALITY: Ross io er City Attorney Accepted and agreed to this and local law. Ordinance 0-99-1160 Metricom Right-of-Way Ordinance Page 19 of 19 day of April 1999, subject to applicable federal, state ATTEST: MAY 1 8 1999 METRICOM, INC. ~~ lee M. Gopadze Senior Vice President, Field Operations Group '-~, M. (" ~)1 etncom ~ 980 University Avenue Los Gatos. CA 95030 Via Overnight Mail May 18, 1999 City of Colleyville 5400 Bransford Road Colleyville, TX 76034 Attention: Dianne McWethy RE: Ordinance No. 0-99-1160, dated May 18, 1999 Dear Ms. McWethy: Enclosed please find two original, executed copies of Ordinance No. 0-99-1160 granting a Franchise to Metricom, Inc. by the City ofColleyville, dated May 19, 1999. Please return a Certified Copy to my attention. Thank you very much for your attention to this matter. Metricom sincerely looks forward to working with the City of Colleyville. Should you have any questions concerning this agreement, please feel free to contact me at (408) 399-8108. Sincerely, y lft.d? ' . Rodrigu~ s Specialist Enclosure Telephone: 408.399.8200 FAX: 408.354.1024