HomeMy WebLinkAboutRESOLUTION - 26-99 - 10/12/1999 - FACILITIES USE AGREEMENTRESOLUTION NO. 26-99
A RESOLUTION AUTHORIZING THE VILLAGE PRESIDENT AND VILLAGE
CLERK TO EXECUTE A FACILITIES USE AGREEMENT BETWEEN
METRICOM, INC. AND THE VILLAGE OF ELK GROVE VILLAGE
NOW, THEREFORE, BE IT RESOLVED by the President and Board of
Trustees of the Village of Elk Grove Village, Counties of Cook and
DuPage, State of Illinois as follows:
Section 1: That the Village President be and is hereby
authorized to sign the attached documents marked:
ELK GROVE VILLAGE
MUNICIPAL FACILITIES USE AGREEMENT
a copy of which is attached hereto and made a part hereof as if fully
set forth and the Village Clerk is authorized to attest said
documents upon the signature of the Village President.
Section 2: That this Resolution shall be in full force and
effect from and after its passage and approval according to law.
VOTE: AYES: 6 NAYS: 0 ABSENT: 0
PASSED this 12th day of October 1999.
APPROVED this 12th day of October 1999.
Craig B. Johnson
Village President
ATTEST:
Ann I. Walsh
Village Clerk
9/RES0602Metricom.doc
Elk Grove Village
Municipal Facilities Use Agreement
THIS MUNICIPAL FACILITIES USE AGREEMENT (this "Use Agreement") is dated as of
, (the "Effective Date"), and entered into by and between the VILLAGE
OF ELK GROVE VILLAGE, an Illinois home rule municipal corporation (the "Village"), and
METRICOM, INC., a Delaware corporation ("Metricom").
Recitals
A. Metricom is in the business of constructing, maintaining, and operating a wireless
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 § 1.15 below) and related equipment certified by the Federal
Communications Commission.
B. Metricom is and will throughout the term of this Use Agreement be both "a
retailer maintaining a place of business in this State" and be engaged in the "sale of
telecommunications at retail," as each of those terms are defined in the Illinois
Telecommunications Municipal Infrastructure Maintenance Fee Act, P.A. 90-154 (the "TMIMF
Act"), and in Ordinance No. 2597 of the Municipal Code of the Village.
C. Subject to reasonable municipal regulations concerning the time, location, manner
of attachment, installation, maintenance of its facilities, and payment of such
telecommunications infrastructure maintenance fees as may be required under the TMIMF Act
and local ordinances enacted pursuant thereto, Metricom has the right under federal and Illinois
law to install telecommunications facilities in the public right-of-way, as defined herein.
D. Metricom wishes to locate, place, attach, install, operate, and maintain Radios on
municipal facilities owned by the Village, as well as facilities owned by third parties, located in
the public right-of-way for purposes of operating Ricochet®.
E. Metricom's right to install telecommunications facilities in the public right-of-
way under the conditions aforesaid does not extend to the installation by Metricom of
telecommunications facilities on "municipal facilities," as defined herein, and access to said
municipal facilities requires separate agreement with the Village.
F. Metricom and the Village, having reached agreement on the terms and conditions
of Metricom's access to municipal facilities, now desire to reduce this agreement to writing in
the form of this Use Agreement, so as to more particularly set forth the terms and conditions of
said access and such other mutual agreements, representation and covenants which have been
agreed between the parties as consideration for entering into this Use Agreement.
Municipal Facilities Use Agreement
page I of 19
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 Abandoned. "Abandoned" shall refer to any Radio installed on a municipal
facility that has been left by Metricom in an unused or non-functioning condition for
more than one hundred and twenty (120) consecutive days, unless Metricom shall
establish to the reasonable satisfaction of the Village that the Radio(s) in question
has(have) continued viability at its(their) location(s).
1.2 Agency. "Agency" means any governmental or quasi -governmental agency other
than the Village, including the Federal Communications Commission and the ICC (as
such term is defined in § 1.3 below).
1.3 ICC. "ICC" means the Illinois Commerce Commission.
1.4 Fee. "Fee" means any assessment, license, charge, fee, imposition, tax, or levy of
general application to Persons doing business in the Village lawfully imposed by any
governmental body (but excluding any utility users' tax, franchise fees,
telecommunications tax, telecommunications infrastructure maintenance fee or similar
tax or fee).
1.5 Illinois Local Government and Governmental Employees Tort Immunity Act.
"Illinois Local Government and Governmental Employees Tort Immunity Act" shall refer
to and incorporate by reference the Public Act of the State of Illinois of the same name
and set forth in 745 ILCS 10/1-101, et seq., now or hereafter amended.
1.6 Installation Date. "Installation Date" shall mean the date that the first Radio is
installed by Metricom in the public right-of-way pursuant to this Use Agreement.
1.7 Laws. "Laws" means any and all statutes, constitutions, ordinances, resolutions,
regulations, judicial decisions, rules, tariffs, administrative orders, certificates, orders, or
other requirements of the Village or other governmental agency having joint or several
jurisdiction over the parties to this Use Agreement, and all subsequent amendments
thereto, as may be in effect either as of the Effective Date or at any time during the
presence of Radios in the public right-of-way.
1.8 Local public entity. "Local public entity" shall have the same meaning as that set
forth in Section 1-206 of the Illinois Local Government and Governmental Employees
Tort Immunity Act (745 ILCS 10/1-101, et seq.,, 10/1-206), now or hereafter amended.
Municipal Facilities Use Agreement
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1.9 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.
1.10 Municipal Access Program. "Municipal Access Program" means the discount
program described in § 4.5 below.
1.11 Municipal Facilities. "Municipal Facilities" means Village -owned street light
poles or fixtures located within the public right-of-way, and may refer to such facilities
in the singular or plural, as appropriate to the context in which used.
1.12 Public Right of Way. "Public right of way" means any municipal street or public
right-of-way dedicated or commonly used now or hereafter for utility purposes, including
but not limited to overhead lighting facilities, and including utility easements wherein the
Village now or hereafter acquires the right and authority to locate or permit the location
of utilities consistent with telecommunications facilities. This term shall not include any
municipal facilities, nor shall it include county, state, or federal rights of way or any
property owned by any Person or Agency other than the Village, except as provided by
applicable Laws or pursuant to a maintenance, jurisdictional or other agreement between
the Village and any such Person or Agency.
1.13 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.
1.14 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 parry to this Use Agreement. All Provisions, whether covenants or conditions,
shall be deemed to be both covenants and conditions.
1.15 Radio. "Radio' means the radio equipment, whether referred to singly or
collectively, to be installed and operated by Metricom hereunder, and described in the
attached appendix to this Use Agreement. No other sort of telecommunications
equipment or facilities shall be deemed included in the term "Radio."
1.16 Ricochet®. "Ricochet®" or "Ricochet® MCDN" means Ricochet®
MicroCellular Digital Network, a wireless, microcellular digital radio communications
network owned and operated by Metricom.
1.17 Services. "Services" means the wireless digital communications services
provided through Ricochet® by Metricom.
1.18 TMIMFAct. "TMIMF Act' shall mean the Telecommunications Municipal
Infrastructure Maintenance Fee Act of the State of Illinois, Public Act No. 90-154, now
or hereafter amended.
1.19 Village. "Village" means the Village of Elk Grove Village
Municipal Facilities Use Agreement
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1.20 Village IMF Ordinance. "Village IMF Ordinance" shall refer to Ordinance No.
2597, adopted by the corporate authorities of the Village on or about October 14, 1997
and imposing a municipal telecommunications infrastructure maintenance fee as
authorized and provided for in the TMIMF Act, now or hereafter amended.
1.21 Village Telecommunications Tax Ordinance. "Village Telecommunications Tax
Ordinance" shall refer to Ordinance No. 2467, adopted by the corporate authorities of the
Village on or about January 23, 1997 and imposing a municipal telecommunications tax
as authorized and provided for pursuant to the Illinois Municipal Code, now or hereafter
amended.
1.22 Use Agreement. "Use Agreement" means this nonexclusive Use Agreement and
may also refer to the associated right to encroach upon the public right-of-way conferred
hereunder.
2 TERM. This Use Agreement shall be effective as of the Effective Date and shall extend for a
term of nine (9) 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 either party notifies the other 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 Village under applicable Laws to use any and all parts of
the public 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 public 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 Village's option,
be subject to the reasonable prior review and approval of the Village.
3.1 Attachment to Municipal Facilities. Subject to the provisions of Section 3.5,
requiring Metricom to obtain permits approving the method and location of its
installation of Radios, Village hereby authorizes and permits Metricom to enter upon the
public 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 Village. 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. The
attachment shall be in general conformance with the document entitled "Elk Grove
Village Proposed Poletop Radio Location," dated March 11, 1999.
Municipal Facilities Use Agreement
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3.2 Attachment to Third -Party Property. Subject to obtaining the permission of
the owner(s) of the affected property, the Village hereby authorizes and permits
Metricom to enter upon the public right-of-way and to attach, install, operate, maintain,
remove, reattach, reinstall, relocate, and replace such number of Radios in or on
streetlight or utility poles or other structures owned by public utility companies or other
property owners located within the public 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. Village agrees to provide to Metricom, at no cost or
expense to Village, such information as Metricom may reasonably require in the course
of obtaining where necessary the consents of third -party owners of property located in the
Municipal Right of Way, provided such information is not privileged, proprietary,
exempt from disclosure under the Illinois Freedom of Information Act, or otherwise
protected by law from disclosure.
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, maintenance, repair, replacement, enlargement or operation of any and all
public and private rights of way, sanitary sewers, water mains, storm drains, gas mains,
poles, aerial and underground electrical and telephone wires, electroliers, cable television,
and other telecommunications, utility, or municipal property, without the express written
approval of the owner or owners of the affected property or properties or Village, as the
case may be, except as permitted by applicable Laws or this Use Agreement. Village
agrees to require the inclusion of substantially the same prohibition on interference as
that stated above in all agreements and franchises Village may enter into after the
Effective Date with other telecommunications providers and carriers of functionally
equivalent services.
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 public right-of-way shall require any
permits, Metricom shall, if required under applicable Village ordinances, apply for the
appropriate permits and pay any standard and customary permit fees. Village 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 final proposed locations of Metricom's installation of
Radios shall be provided to the Village for the consideration approval by the Director of
Engineering and Community Development 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 Village documentation in Mapinfo® or in such other format
as may be reasonably required by the Village Engineer showing the exact location of the
Radios in the Municipal Right of Way. Metricom shall provide to the Village
Municipal Facilities Use Agreement
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supplemental documentation showing the relocation, removal and/or abandonment of
existing Radios or the installation of new Radios within thirty (30) days of their
relocation or installation, as the case may be.
3.7 Use Agreement Extends Only to Installation of Radios. The rights granted
Metricom under this Use Agreement extend only to the installation of the Radios
described herein on Municipal Facilities in the manner described herein or on Third -Party
Property in the manner provided in Section 3.2, and does not create any right to install
different or additional telecommunications facilities in the public right-of-way or on
Municipal Facilities or on Third -Party Property. Under no circumstances is the closing,
excavation or opening of any public right-of-way authorized or permitted under this Use
Agreement.
3.8 Exclusion of Certain Municipal Facilities. Prior to its installation of radios on
Municipal Facilities and after it provides the Village with its proposed locations for
installation of the Radios on Municipal Facilities, the Village may in its discretion
designate certain Municipal Facilities to be excluded from those on which Radios may be
installed by Metricom, including but not limited to ornamental or similar specially -
designed streets lights, or other Municipal Facilities which, in the reasonable judgment of
the Village's Engineer do not have electrical service adequate or appropriate for
Metricom's Radios or cannot safely bear the weight or wind loading caused by the
presence of Metricom's radios, or any other Municipal Facility that in the reasonable
judgment of the Village's Engineer is incompatible with the Radio or would be rendered
unsafe or unstable by the installation of a Radio. Metricom acknowledges that the
Village intends to replace a number of existing Municipal Facilities with ornamental light
poles and does not want Metricom to install its Radios on these Municipal Facilities. The
Village Manager in his reasonable discretion, which will not be arbitrarily exercised, may
exclude these Municipal Facilities from Metricom's proposed locations for installation of
Metricom's Radios.
3.9 Engineer's Certification. At the time of execution of this Use Agreement,
Metricom shall provide the Village and attach to this Use Agreement as Exhibits hereto a
certified Standard Wind Loading Study and a certified Attachment Detail showing typical
installation for the Radios, each of which shall be certified by a registered Professional
Engineer.
3.10 No Introduction of Hazardous Materials. Metricom represents and warrants
that its use of the public right-of-way and Municipal Facilities, and its installation of
Radios as provided herein, will not introduce or generate any hazardous substance, and it
will not store or dispose on the public right-of-way or Municipal Facilities nor transport
to or over the public right-of-way or Municipal Facilities any hazardous substance.
Municipal Facilities Use Agreement
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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 Municipal Telecommunications Infrastructure Maintenance Fee. Metricom
acknowledges that it is a telecommunications "retailer maintaining a place of business in
this State" and is engaged in the "sale of telecommunications at retail," as those terms are
defined in both the TMIMF Act and the Village IMF Ordinance. Metricom acknowledges
that it is subject to payment to the Village IMF Ordinance and shall comply at all times
with the current provisions of said Ordinance. Payment of any infrastructure
maintenance fee to the Village pursuant to the Village IMF Ordinance is an obligation
under law that exists independently of this Use Agreement, and payment thereof shall not
constitute a franchise fee or any other form of compensation solely for the use or
occupancy of the public right-of-way pursuant to this Use Agreement. In consideration
of the covenants and agreements made herein by the Village, Metricom releases and
waives any objection or challenge it might have against the validity, enactment or
imposition of the Village IMF Ordinance by the Village, and further agrees that its
violation of that Ordinance shall constitute a breach of its obligations under Section 3.4
(Compliance with Laws) of this Use Agreement and a default of a material term hereof
pursuant to Section 9 of this Use Agreement. Metricom further agrees that if a court or
administrative agency of competent jurisdiction should declare either the Village IMF
Ordinance of the TMIMF Act unconstitutional or invalid, then Metricom and the Village
shall each be obligated to negotiate in good faith to amend Section 4 of this Use
Agreement and if, after one hundred and eighty (180) days from the commencement of
negotiations or such extension thereof that may be agreed by the parties, the Village and
Metricom are unable to reach agreement on amendments hereto, then this Use Agreement
shall be deemed terminated and Metricom shall promptly remove its Radios from the
Municipal Facilities.
4.2 Municipal Telecommunications Tax. Metricom acknowledges that it is a
telecommunications "retailer maintaining a place of business in this State" and is engaged in
the "sale at retail" of telecommunications as those terms are defined in the Village
Telecommunications Tax Ordinance. Metricom acknowledges that it is subject to
payment to the Village Telecommunications Tax Ordinance and shall comply at all times
with the current provisions of said Ordinance. Payment of any municipal
telecommunications tax to the Village pursuant to the Village Telecommunications Tax
Ordinance is an obligation under law that exists independently of this Use Agreement,
and payment thereof shall not constitute a franchise fee or any other form of
compensation solely for the use or occupancy of the public right-of-way pursuant to this
Use Agreement. In consideration of the covenants and agreements made by the Village,
Metricom releases and waives any objection or challenge it might have against the
validity, enactment or imposition of the Village Telecommunications Tax Ordinance by
the Village, and further agrees that its violation of that Ordinance shall constitute a
breach of its obligations under Section 3.4 (Compliance with Laws) of this Use
Agreement and a default of a material term hereof pursuant to Section 9 of this Use
Agreement.
Municipal Facilities Use Agreement
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4.3 Annual Fee. As compensation solely for the use of Municipal Facilities,
Metricom shall pay to the Village 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, located or maintained pursuant to this Use Agreement. The aggregate
Annual Fee for the first year of the term shall be equal to the number of Radios proposed
to be installed by Metricom in the Facilities Map submitted to the Village multiplied by
the Annual Fee and shall be paid no later than thirty (30) days after the Installation Date.
On each succeeding anniversary of the Installation Date, Metricom shall pay an annual
fee in an amount equal to the number of Radios installed on Municipal Facilities on the
anniversary of the Installation Date multiplied by the Annual Fee, prorated as
appropriate.
4.3.1 CPI Adjustment. Effective commencing on the second (2"d) anniversary
of the Installation Date and continuing on every second (2"d) anniversary
thereafter during the term, the Annual Fee with respect to the ensuing five -year
period shall be increased by a percentage amount equal to the percentage increase
in the U.S. Department of Labor, Bureau of Labor Statistics Consumer Price
Index (CPI -U, All Items, Urban Consumers, Chicago Area, 1982-1984=100)
which occurred during the previous two-year period.
4.4 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. Metricom shall provide the Village with
documentation sufficient to demonstrate that it has established an unmetered rate for the
consumption of electricity by the Radio(s) with the appropriate electricity distributor
and/or supplier, as the case may be, to provide for its payment for the use of unmetered
electricity to operate the Radio(s).
4.5, Municipal Access Program. In consideration of Village's execution and
delivery of this Use Agreement, Village shall have the right throughout the term of this
Use Agreement to purchase, when such service is commercially available in the Village,
up to the maximum number set forth below (based upon the Village's population) of
Ricochet® basic service subscriptions at the rate of fifty percent (50%) of the regular rate
as current from time to time. The number of subscriptions which the Village may
purchase at the Municipal Access Program rate shall be determined in accordance with
the Village'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 twenty
(20) discount subscriptions; (b) for municipalities with a population of 100,000 to
249,000, up to a maximum of thirty (30) discount subscriptions; (c) for municipalities
with a population of 250,000 to 500,000, up to a maximum of forty (40) discount
subscriptions; and (d) for municipalities with a population of over 500,000, up to a
maximum of fifty (50) discount subscriptions. Village understands and agrees that
Metricom's modems and equipment required to utilize the discounted subscriptions and
any additional service subscriptions or service options the Village may desire are
expressly excluded from this special Municipal Access Program rate and may be obtained
from either Metricom or an authorized retailer at market rates current from time to time
Municipal Facilities Use Agreement
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or under other promotional programs which may be available from time to time in
addition to the Municipal Access Program rate. Village shall use all subscriptions
provided pursuant to this § 4.5 solely for its own use and shall not be entitled to resell,
distribute, or otherwise permit the use of the same by any other Person, excepting a local
public entity that provides public services within the corporate boundaries of Village.
The level of benefits and services provided to Village 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. Metricom and
Village agree that all benefits and services offered under this Section, whether for the use
of Village or another unit of local government, shall be acquired under and pursuant to
Village's lawful purchasing and procurement process and procedures.
5 REMOVAL OR RELOCATION OF RADIOS. Metricom understands and acknowledges that
Village may require Metricom to remove from a specific Municipal Facility and relocate one or
more of its Radios, and Metricom shall at Village's direction relocate such Radios at
Metricom's sole cost and expense, whenever Village 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 Village project; (b) because particular Municipal Facility
is being eliminated, whether due to undergrounding of utilities, relocation, or other cause; (c)
because the Radio has been abandoned; (d) because the Radio is interfering with or adversely
affecting proper operation of Village -owned light poles, traffic signals, or other Municipal
Facilities; (e) because the Municipal Facility is being replaced with an ornamental street light;
or (f) to protect or preserve the public health or safety. In any such case, Village shall use its
best efforts to afford Metricom a reasonably equivalent alternate location. If Metricom shall fail
to relocate any Radios as requested by the Village within a reasonable time under the
circumstances in accordance with the foregoing provision, but in any event, not to exceed thirty
(30) days• without the agreement of the Village, the Village shall be entitled to remove or
relocate the Radios at Metricom's sole cost and expense, without further notice to Metricom,
and Metricom shall, within thirty (30) days of invoice to same, reimburse the Village for its
expenses incurred in the removal, relocation and disposal of the Radios. The provisions of this
Section 5 and its further subsections shall survive the expiration or earlier termination of this
Use Agreement or renewal thereof.
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 Village.
Village will use reasonable 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 Alteration or Damage to Municipal Facilities or Public 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 public right-of-way or
Municipal Facilities to be damaged or to have been altered in such a manner as to make
them unusable, unsafe, or in violation of electrical codes or other applicable law,
Municipal Facilities Use Agreement
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Metricom, at its sole cost and expense, shall promptly repair and return the public right-
of-way or Municipal Facilities in or on which the Radios are located to its original
condition and in accordance with currently applicable Laws, normal wear and tear
excepted. If Metricom does not repair and restore the public right-of-way or Municipal
Facilities as just described, then the Village 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 Village at Village's standard rates.
Upon the receipt of a demand for payment by the Village, Metricom shall within thirty
(30) days reimburse the Village for such costs.
6 INDEMNIFICATION AND WAIVER. Metricom agrees to indemnify, defend, protect, and hold
harmless the Village, its corporate authorities, 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 but
not limited to reasonable attorney's fees, expert witness fees and costs of defense (collectively,
the "Losses') directly or proximately resulting from Metricom's acts or omissions within the
scope of this Use Agreement, except to the extent arising from or caused by the negligence or
willful misconduct of the Village, its corporate authorities, officers, employees, agents, or
contractors. The foregoing notwithstanding, under no circumstances shall the issuance of any
permit or certificate provided for under Village Code to Metricom or another person or entity
constitute an act of negligence or willful misconduct. Nothing set forth in this Use Agreement
shall be deemed a waiver by the Village of any defenses or immunities relating to Metricom or
its property, or to any other person or entity or their property, that are or would be otherwise
available to the Village or its corporate authorities, officers and employees under the provisions
of the Illinois Local Government and Governmental Employees Tort Immunity Act, or that
otherwise available to local governments and their corporate authorities, officers and employees
under the common law of the State of Illinois or the United States of America. The provisions
of this Section 6 and each of its further subsections shall survive the expiration or earlier
termination of this Use Agreement or renewal thereof.
6.1 Waiver of Claims. Metricom waives any and all claims, demands, causes of
action, and rights it may assert against the Village 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 Village. Actions by persons or
entities other than the Village or its corporate authorities, officers or employees shall be
deemed beyond the reasonable control of the Village.
6.2 Limitation of Village's Liability. The Village shall be liable only for the cost of
repair to damaged Radios arising from the willful or wanton misconduct of Village, its
corporate authorities, officers or employees.
Municipal Facilities Use Agreement
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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
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. Such insurance policies shall name the
Village as an additional insured 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. When an umbrella or excess coverage is in effect, coverage shall be provided in
following form. Such insurance shall not be canceled or materially altered to reduce the policy
limits until the Village has received at least thirty (30) days' advance written notice of such
cancellation or change. Metricom shall be responsible for notifying the Village 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 Village the required
original certificate(s) of insurance with endorsements, which shall clearly state all of the
following:
(a) the policy number; name of insurance company; name and address of
the agent or authorized representative; name, address, and telephone
number of insured; project name and address; policy expiration date; and
specific coverage amounts;
(b) that the Village shall receive thirty (30) days' prior notice of
cancellation; and
(c) that Metricom's insurance is primary as respects any other valid or
collectible insurance that the Village may possess, including any self-
insured retentions the Village may have; and any other insurance the
Village does possess shall be considered excess insurance only and shall
not be required to contribute with this insurance.
The certificate(s) of insurance with endorsements and notices shall be mailed to the
Village at the address specified in § 8 below.
7.2 Workers' Compensation Insurance. Metricom shall obtain and maintain at all
times during the term of this Use Agreement statutory workers' compensation and
employer's liability insurance in an amount not less than Five Hundred Thousand Dollars
($500,000) or such higher amount as may be required by law during the term or renewal
thereof of this Use Agreement, and shall furnish the Village with a certificate showing
proof of such coverage.
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7.3 Insurer Criteria. Any insurance provider of Metricom shall be admitted and
authorized to do business in the State of Illinois and shall be rated at least A:X in AM
Best & Company's Insurance Guide. Insurance policies and certificates issued by
non -admitted insurance companies are not acceptable.
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
Village. "Cross liability," "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 Village:
VILLAGE OF ELK GROVE VILLAGE
Attn: Village Manager
901 Wellington Avenue
Elk Grove Village, IL 60007
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. For purposes of this Section,
Metricom's abandonment of its Radios shall also be deemed a default if not cured within the
time limit provided for in this Section. Except as expressly provided herein, the rights granted
under this Use Agreement are irrevocable during the term.
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10 ASSIGNMENT. This Use Agreement shall not be assigned by Metricom without the express
written consent of the Village, 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, affiliated successor, or financially viable affiliate
shall not be deemed an assignment for the purposes of this Use Agreement.
11 MISCELLANEOUS PROVISIONS. The provisions which follow shall apply generally to the
obligations of the parties under this Use Agreement.
11.1 Nonexclusive Use. Metricom understands that this Use Agreement does not
provide Metricom with exclusive use of the public right-of-way or any Municipal Facility
and that Village shall have the right to permit other providers of telecommunications
services to install equipment or devices in the public right-of-way and on Municipal
Facilities; however, Village agrees to advise other providers of telecommunications
services of the presence or planned deployment of the Radios in the public right-of-way
and/or on Municipal Facilities.
11.2 Amendment of Use Agreement. This Use Agreement may not be amended
except pursuant to a written instrument signed by both parties.
11.3 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.
11.4 Contacting Metricom. Metricom shall be available to the staff employees of any
Village department having jurisdiction over Metricom's activities twenty-four (24) hours
a day, every day of the year without exception, regarding problems or complaints
resulting from the attachment, installation, operation, maintenance, or removal of the
Radios. The Village may contact by telephone the network control center operator at
telephone number (800) 873-3468 regarding such problems or complaints.
11.5 Governing Law; Jurisdiction. This Use Agreement shall be governed and
construed by and in accordance with the laws of the State of Illinois, without reference to
its conflicts of law principles. Terms or provisions herein shall not be construed against
one party merely because that party is or was the principal drafter. If suit is brought by a
party to this Use Agreement, the parties agree that venue for such action shall be vested
exclusively in the state courts of Illinois, County of Du Page, or in the United States
District Court for the Northern District of Illinois in such Division (Eastern or Western)
thereof in which the Village is located.
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11.6 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.
11.7 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.
11.8 Successors and Assigns. This Use Agreement is binding upon the successors
and assigns of the parties hereto.
11.9 Advice of Displacement. To the extent the Village has actual knowledge thereof,
the Village will attempt promptly to inform Metricom of the displacement or removal of
any pole on which any Radio is located.
11.10 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.
11.11 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.
11.12 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, Village specifically represents and covenants that Village owns all
Municipal Facilities for the use of which it is collecting from Metricom the Annual Fee
pursuant to § 4.1 above.
11.13 Entire Agreement. This Use Agreement contains the entire understanding
between the 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.
11.14 No Third -Party Beneficiaries. This Use Agreement creates no rights, title or
interest in any person or entity whatsoever (whether under a third party beneficiary
theory or otherwise) other than Metricom and the Village, and their respective officers,
employees or other persons to the extent specifically named herein.
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11.15 Reimbursement for Attorney Fees. Metricom acknowledges that Village has
incurred costs for attorney fees and attorney time attributable to its consideration, review,
and preparation of this Use Agreement and such ordinance, resolution or other material
needed to have this Use Agreement approved and adopted by the corporate authorities of
the Village, including but not limited to attorney fees for use of outside legal counsel
and/or the value or expense attributable to the actual time directly and reasonably spent
on these matters by in-house legal counsel employed by the Village. Metricom shall
reimburse Village for any attorney fees and costs that Village incurred or incurs directly
and reasonably in connection with the review, preparation and approval of this Use
Agreement in an amount not to exceed Two Thousand and no/100 Dollars ($2,000.00).
Village shall invoice Metricom for any reimbursement under this Section one time, either
at the hourly rate billed by outside legal counsel or at a comparable hourly rate
attributable to in-house legal counsel. Metricom shall pay the invoice within not more
than forty-five (45) days after the date of the invoice.
11.16 Option to Use Other Agreements. In the event and each time that Metricom
enters into an agreement, after the Effective Date and during the Term of this Use
Agreement or renewal thereof, with another municipality located, in whole or in part,
within the boundaries of Cook, DuPage, Kane, Lake, or McHenry Counties in the State of
Illinois, that has a population equal to or less than the greater of either (a) the population
of Village as adjusted during the term of this Use Agreement or extension thereof, or (b)
40,000, and that permits Metricom or its successors or assigns to use that municipality's
Municipal Facilities in a manner similar to this Use Agreement, then, if such subsequent
agreement contains terms, conditions or provisions relating to compensation different, in
amount or kind from those contained in Section 4, inclusive of each of its Subsections, of
this Use Agreement, Metricom shall inform Village in writing of such fact, and provide a
copy of such agreement to the Village. If, within ninety (90) days after receiving such
notice, the Village determines in the reasonable exercise of its discretion that such
different provisions, if incorporated into this Use Agreement, will provide Village with
rights that are more beneficial to the Village than the rights and benefits provided for
under Section 4, inclusive of each of its Subsections, and Village within the ninety (90)
day period notifies Metricom that it desires to adopt the compensation provisions of such
other agreement, Metricom agrees that it will amend this Use Agreement so that it
contains terms relating to compensation and length of term, including any renewal terms,
that are the same as in such subsequent agreement.
11.17 Signatures. This Use Agreement may be signed in counterparts.
11.18 Taxation. The Municipal Facilities and the public right-of-way on which they
are located are presently exempt from real estate taxes. In the event that this Use
Agreement, any provision thereof, or any use of the public right-of-way or Municipal
Facilities pursuant to the terms of this Use Agreement shall result in said right-of-way,
Municipal Facilities or any parts thereof becoming subject to such real estate taxes, then
Metricom shall be liable to the Village for its payment of such taxes and shall reimburse
the Village for any such taxes paid within thirty (30) days invoice for same. Metricom
shall have the right to contest all taxes, assessments, charges and impositions as it may
Municipal Facilities Use Agreement
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become liable for under this Section, and Village agrees to join in such contest if required
by law and to permit Metricom to proceed with the contest in Village's name, provided
that the expense of the contest is borne solely by Metricom.
11.19 Relationship of the Parties. Metricom and Village shall be and act as
independent contractors, and under no circumstances shall this Use Agreement be
construed as one of agency, partnership, joint venture, or employment between the
parties.
11.20 Advertising, Signs or Extraneous Markings. Metricom shall not place or cause
to be placed any sort of signs, advertisements or other extraneous markings, whether
relating to Metricom or any other person or entity, on any Radio or other equipment
located on a Municipal Facility or in the public right-of-way, excepting such labels,
numbers or other marks on the Radio(s) as are reasonably necessary to identify the Radio
or Metricom for service, repair, maintenance or emergency purposes, or as may be
otherwise required to be affixed by applicable law or regulation.
11.21 Bond or Other Security. Prior to the commencement of any work under this
Use Agreement, Metricom shall furnish or cause to be furnished to Village a good and
sufficient bond, substantially in the form attached hereto as Exhibit B entitled Surety
Bond, in the amount of Five Thousand Dollars ($5,000), or such other comparable
security instrument as may be approved by the Village's attorney or risk manager,
securing the faithful performance by Metricom of all of the work, construction,
installation, and removals required to be performed by Metricom under this Use
Agreement within the time periods set forth hereunder.
11.22 Entire Agreement. This Use Agreement contains the entire understanding
between the 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.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANKI
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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.
Village: VILLAGE OF ELK GROVE VILLAGE, an Illinois municipal
corporation
By:
Craig B. Johnson
[name typed]
Its: Village President
LZA
Ann I. Walsh
[name typed]
Its: Village Clerk
Metricom: METRICOM, INC., a Delaware corporation
By:
[name typed]
Its:
Attest:
[name typed]
Its:
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[EXHIBIT B]
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 the Village of Elk Grove Village, as
Obligee, in the sum of Five Thousand Dollars ($5,000.00); 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.
Municipal Facilities Use Agreement
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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 canceled under Section , 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 incurred or accrued, and may do so upon giving the Obligee sixty (60) days
written notice.
SIGNED AND SEALED this day of '19
PRINCIPAL
.0
Title:
SURETY
(Type Company Name)
By:
Title:
Address:
Telephone:
(Affix Corporate Seals)
(Attach Acknowledgments of both Principal and Surety signatures)
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