Loading...
HomeMy WebLinkAbout2003 CON CA Ricochet Networks Inc - Use of PolesCity of National City Office of the City Clerk 1243 National City Boulevard, National City, California 91950-4397 Michael R. Dalla, CMC - City Clerk (619) 336-4228 Fax: (619) 336-4229 March 28, 2003 Ricochet Networks Inc Attn: Legal Counsel 1400 Glenarm Place Suite 100 Denver CO 80202 On March 18, 2003, Resolution No. 2003-38 was passed and adopted by the City Council of the City of National City, authorizing the Mayor to execute an Attachment Permit and WAP Site Use Agreement with Ricochet Networks, Inc. for the placement of radios on facilities located in the public right-of-way. We are forwarding a certified copy of the above Resolution and Attachment Permit and WAP Site Use Agreement. Sincerely, \Ot(-AK Martha L. Alvarez (� Deputy City Clerk /mla Enclosure cc: Engineering File No. C2003-10 (E1 Recycled Paper MEETING DATE City of National City, California COUNCIL AGENDA STATEMENT MARCH 18, 2003 caoO3-(D AGENDA ITEM NO. (-ITEM TITLE RESOLUTION AUTHORIZING THE MAYOR TO EXECUTE A USER AGREEMENT WITH RICOCHET NETWORKS INC. TO USE THE POLETOP RADIO TRANSCEIVERS, THAT ALREADY EXIST IN THE CITY'S PUBLIC RIGHT-OF-WAY PREPARED BY EXPLANATION Michael Long 336-4380 DEPARTMENT SEE ATTACHED EXPLANATION Engineering ( Environmental Review X N/A (-Financial Statement The services that Ricochet App roved By: Networks, Inc. is offering are free of charge Co Finance Director the City, in exchange for the use of the existing poletop radio transceivers. Account No. STAFF RECOMMENDATION Adopt the Resolution. `, BOARD / COMMISSION RECOMMENDATION N/A ATTACHMENTS ( Listed Below ) Resolution No. 2003-3$ 1. Resolution 2. Attachment permit and wap site use agreement Exhibit "A" 3. Appendix A A-200 (9/99) RICO EXPLANATION: On April 6, 1999 the City of National City adopted Resolution No. 99- 39 authorizing the Mayor to execute a franchise agreement with Metricom, Inc. to install poletop radio transceivers in the City's public right-of-way. On July 2, 2001 Metricom, Inc. filed for bankruptcy and as of October 29, 2001 the court approved a rejection of all leases and executory contracts and authorized the abandonment of the Metricom radios. (RNI) Ricochet Networks purchased the intellectual property necessary to operate the abandoned and currently City owned radios. RNI has offered the. City forty (40) Ricochet modems and an equal number of Ricochet Basic Service subscriptions in exchange for the right to use the poletop radio transceivers that are located on City property and for the right to install and operate new radios within the public right-of-way or on other City property. In addition to this, RNI is willing to contribute up to fifty percent (50%), not to exceed $4,400.00, of the cost associated with upgrading police vehicles laptops to Windows 2000 software. This will allow National City's police cruisers real time high speed connectivity to not only the internet but to access state and federal law enforcement data bases. Having modems in the vehicles will also provide on duty officers enhanced information search capabilities, allow them to check and send e-mail from the field, and submit and file reports without returning to the station. These services and upgrades will provide a significantly more cost effective and efficient public safety service for the City. The Public Works/Engineering Department has conferred with MIS and the Police Department who believe that these services will benefit the City greatly and support the adoption of this agreement. Furthermore, the City is eligible to participate in the Ricochet Government Volume Discount Program. The prices, terms and conditions of the Ricochet Government Volume Discount Program are shown in Appendix A. Passed and adopted by the Council of the City of National City, California, on March 18, 2003, by the following vote, to -wit: Ayes: Councilmembers Inzunza, Natividad, Parra, Ungab. Nays: None. Absent: Councilmember Morrison. Abstain: None. AUTHENTICATED BY: NICK 1NZUNZA Mayor of the City of National City, California of National City, California By: Deputy I HEREBY CERTIFY that the above and foregoing is a full, true and correct copy of RESOLUTION NO. 2003-38 of the City of National City, California, passed and adopted by the Council of said City on March 18, 2003. City Clerk of the City of National City, California By: Deputy Miriam Sanders Miller Regional Real Estate Director Phone: 301.263.9193 Fax: 301.263.9194 rnrniIIpr(3rirorhi©d rnm htgh-speed YEfe-free intern2t March 3, 2003 RICOCHET NETWORKS, INC, 1400 GLENARM PLACE DENVER, CO 50202 303 572 1200 telephone 303 572 1300 fax Bernard Yeo Information Systems Manager City of National City 1243 National City Boulevard National City, CA 91950 Dear Mr. Yeo: Ricochet Networks Inc. ("RNI") is pleased to provide you with a revised version of the Attachment Permit and WAP Site Use Agreement for the City of National City (the "City"). Previously we offered the City twenty-two (22) modems in exchange for the right to use the public way and the pole top radios that were located on City -owned property. However, RNI is willing to increase the number of free modems and service subscriptions available to the City to thirty (30) based on the City's representations that it will expedite the approval process for the agreement in an effort to meet RNI's goal to have the agreement in full effect and the ability to begin offering service by March 31, 2003. The revised agreement increases the number of modems and Basic Service subscriptions RNI will provide to the City to forty (40) service units. In addition, it is our understanding that the City's use of Ricochet service in National City's police vehicles will be greatly enhanced if the laptops used in those vehicles are upgraded to run on Windows 2000 software. Therefore, as a contribution toward the enhancement of public safety services in the City, RNI is willing to share the cost of such an upgrade with the City. RNI will contribute up to fifty percent (50%) of the actual costs expended by the City, but not to exceed $4,400.00, toward the purchase of Windows 2000 software for installation on up to forty (40) police laptops. RNI's proposed contribution is conditioned upon the full execution of the Attachment Permit and WAP Site Use Agreement by and between RNI and the City so that it is effective by March 31, 2003, thereby giving RNI the ability to begin offering service in the City by that date. RNI's contribution will be paid to the City as a one- time payment, such payment to be made within thirty (30) days following RNI's receipt of documentation of the City's expenditure. RESOLUTION NO. 2003 - 38 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY AUTHORIZING THE MAYOR TO EXECUTE AN ATTACHMENT PERMIT AND WAP SITE USE AGREEMENT WITH RICOCHET NETWORKS, INC. FOR THE PLACEMENT OF RADIOS ON FACILITIES LOCATED IN THE PUBLIC RIGHT-OF-WAY WHEREAS, Ricochet Networks, Inc. ("RNI") is in the business of constructing, maintaining, and operating a wireless digital data telecommunications radio network known as the Ricochet Network, a network operated in accordance with regulations promulgated by the Federal Communications Commission, utilizing radios and related equipment certified by the Federal Communications Commission; and WHEREAS, RNI wishes to locate, place, attach, install, operate, and maintain radios on facilities owned by the City, as well as facilities owned by third parties, located in the public right-of-way ("Public Way") for purposes of operating Ricochet; and WHEREAS, City is willing to allow placement by RNI of radios on facilities located in the public right-of-way, subject to the terms and conditions of a written agreement between the City and RNI. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of National City authorizes the Mayor to execute an Attachment Permit and WAP Site Use Agreement with Ricochet Networks, Inc. for the placement by RNI of radios on facilities located in the public right-of-way. Said Attachment Permit and WAP Site Use Agreement is on file in the Office of the City Clerk. PASSED AND ADOPTED this 18th Day of March, 2003. ATTEST: Mic ael R. DaII:, City Clerk APPROVED AS TO FORM: ioo George H. Eiser, III City Attorney ATTACHMENT PERMIT AND WAP SITE USE AGREEMENT THIS ATTACHMENT PERMIT AND WAP SITE USE AGREEMENT (the "Permit") is dated as of March 18, 2003, and entered into by and between the CITY OF NATIONAL CITY, a California municipal corporation (the "City"), and RICOCHET NETWORKS, INC., a Delaware corporation ("RNI"). Recitals A. RNI is in the business of constructing, maintaining, and operating a wireless digital data telecommunications radio network known as the Ricochet Network, a network operated in accordance with regulations promulgated by the Federal Communications Commission, utilizing Radios (as defined in § 1.14 below) and related equipment certified by the Federal Communications Commission. B. Subject to reasonable municipal regulations concerning the time, location, manner of attachment, installation, fees, and maintenance of its facilities, RNI has the right under federal and California law to use Ricochet® Radios in the Public Way. C In order to deploy its radios, Metricom entered into a Franchise Agreement with the City of National City. D. In proceedings in the United States Bankruptcy Court, Northern District of California, San Jose Division, Case No. 01-53291-ASW (Weissbrodt, J.), Metricom abandoned Pole Top Radio ("PTR") equipment. E. In the Metricom bankruptcy proceedings, RNI purchased the intellectual property necessary to operate the abandoned Radios. F. RNI wishes to locate, place, attach, install, operate, and maintain Radios on facilities owned by the City, as well as facilities owned by third parties, located in the Public 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 Permit: 1.1 Agency. "Agency" means any governmental or quasi -governmental agency other than the City, including the FCC and the PUG (as such terms are defined in §§ 1.4 and 1.7 below). 1.2 Basic Service. "Basic Service" means the RNI service bundle that includes unlimited Ricochet Service in the local coverage area, Internet access, and Tier II customer service. The Basic Service bundle does not include email, dial plan, or personal web space. 1.3 City. "City" means the City of National City. 1.4 Effective Date. "Effective Date" means the latest to occur of (a) the date on which this Permit, as finally approved by the City Council of National City, is executed by the City and delivered to RNI; or (b) the date on which all permits required hereunder for deployment of the Radios are issued by the City. 1.5 FCC. "FCC" means the Federal Communications Commission. 1.6 Fee. "Fee" means any assessment, license, charge, fee, imposition, tax or levy of general application to Persons doing business in the City lawfully imposed by any governmental body. 1 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 City or other governmental agency having joint or several jurisdiction over the parties to this Permit, in effect either at the time of execution of this Permit or at any time during the presence of Radios in the Public Way. 1.8 New. "New" means not currently installed. 1.9 PUC. "PUC" means the California Public Utilities Commission. 1.10 Permit. "Permit" means this nonexclusive Attachment Permit Agreement and may also refer to the associated right to encroach upon the Public Way conferred hereunder. 1.11 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. 1.12 Provision. "Provision" means any agreement, clause, condition, covenant, qualification, restriction, reservation, term, or other stipulation in this Permit that defines or otherwise controls, establishes, or limits the performance required or permitted by any party to this Permit. All Provisions, whether covenants or conditions, shall be deemed to be both covenants and conditions. 1.13 Public Way. "Public Way" means 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 City. This term shall not include any property owned by any Person or Agency other than the City, except as provided by applicable Laws or pursuant to an agreement between the City and any such Person or Agency. 1.14 Radio. "Radio" means the radio equipment, whether referred to singly or collectively, to be operated by RNI hereunder. 1.15 Ricochet®. "Ricochet®" or "Ricochet® MCDN" means Ricochet® MicroCellular Digital Network, a wireless, microcellular digital radio communications network owned and operated by RNI. 1.16 RNI. "RNI" means Ricochet Networks, Inc., a corporation duly organized and existing under the laws of the State of Delaware, and its lawful successors, assigns, and transferees. 1.17 Services. "Services" means the wireless digital telecommunications services provided through Ricochet by RNI to subscribers with billing addresses within the City. 1.18 Tier ll Customer Service. "Tier II Customer Service" means support services on a technical representative to technical representative basis from 7:30 a.m. through 7:30 p.m. Mountain Time, Monday through Friday. 1.19 WAP. "WAP" means wired access point. 2. Term. The term of this Permit shall commence on the Effective Date and shall expire on the date which completes five (5) years after the Effective Date, unless it is earlier terminated by either party in accordance with the provisions herein. The term of this Permit shall be renewed automatically for four (4) 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 no less than sixty (60) calendar days prior to commencement of the relevant renewal term. 3. Scope of Permit. 3.1 Rights Granted — Limitation. Any and all rights expressly granted to RNI under this Permit, which shall be exercised at RNI's sole cost and expense, shall be subject to the prior and continuing right of the City under applicable Laws to use any and all parts of the Public 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 which may affect the 2 Public Way. Nothing in this Permit shall be deemed to grant, convey, create, or vest in RNI a perpetual real property interest in land, including any fee, leasehold interest, or easement. 3.2 Use of Abandoned Radios and Access to City Property. RNI shall have access to and the exclusive right to operate existing Radios attached to street light poles and Wired Access Points ("WAPS") owned by the City or located in the Public Way or on City -owned buildings or facilities or removed from the Public Way or City -owned buildings or facilities and in the possession of the City during the term of this Permit. RNI shall also have access to other WAP sites and street light poles on the Public Way so that RNI may reconfigure or expand its ability to provide service. 3.3 Attachment to City -Owned Property. The City hereby authorizes RNI to attach, install, operate, maintain, remove, reattach, reinstall, relocate, and replace Radios in or on City street light poles, lighting fixtures, electroliers, or other City -owned property located within the Public Way for the purposes of providing Services to Persons located within or without the limits of the City. RNI shall submit for approval to the City Engineer a complete list of any proposed new attachments or new installations, or any Radio relocations within the Public Way or on City -owned property and shall be granted approval based upon the reasonability of the proposed changes. 3.4 Attachment to Third -Party Property. Subject to obtaining the permission of the owner(s) of the affected property, the City hereby authorizes and permits RNI 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, including SDG&E, or other property owners located within the Public Way as may be permitted by the public utility company or property owner, as the case may be. RNI shall furnish to the City written documentation, upon the City's request, of such permission from the individual utility or property owner responsible prior to the installation or reinstallation of any Radios. 3.5 No Interference. Except as permitted by applicable Laws or this Permit, RNI in the performance and exercise of its rights and obligations under this Permit, 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, aerial and underground electrical and telephone wires, electroliers, cable television, and other telecommunications, utility, or municipal property, without the prior express written approval of the owner or owners of the affected property or properties. 3.6 Compliance with Laws. RNI shall comply with all applicable Laws in the exercise and performance of its rights and obligations under this Permit. 3.7 Obtaining Required Permits. 3.7.1 The City shall reinstate all permits and other authorizations as necessary for existing Radios on City and the Public Way that may have been granted to Metricom, if any; and cooperate and facilitate new permits and authorizations necessary to operate the existing network and/or expand the network within the City. 3.7.2 If the attachment, installation, operation, maintenance, or location of new Radios in the Public Way shall require any permits, RNI shall, if required under applicable City ordinances, apply for the appropriate permits and pay any standard and customary permit fees. City shall promptly respond in accordance with its standard practices to RNI's requests for permits and shall otherwise cooperate with RNI in facilitating the deployment of Ricochet in the Public Way in a reasonable and timely manner. The proposed locations of RNI's planned initial installation of new Radios shall be provided to the City promptly after RNI's review of available City maps and prior to deployment of the new Radios. RNI agrees to meet with the City annually or as otherwise needed to discuss the company's forthcoming projects and installations. 3.8 Notice of Location of Radios. Upon the completion of any new Radio installation, RNI promptly shall furnish to the City, documentation suitable to the City showing the exact location of the new Radios in the Public Way. 3.9 Modification of Service Voltage. The City reserves the right to modify the service voltage delivered to or at any street light pole or utility pole on which a Radio may be located. RNI shall replace or modify any Radio that will be affected by such voltage modifications within thirty (30) days of receiving notice of voltage modifications. In the event that RNI fails to replace or modify any Radio within 3 the thirty -day notice period before the voltage modification, the City may disconnect any such Radio until RNI performs and completes the necessary work and advises City accordingly. 3.10 Annual Business License. If required by law, RNI agrees to obtain an annual City business license prior to the Effective Date of this Permit and maintain the same throughout the term of this Permit. 4. Fees and Taxes. 4.1 PTR Fee. In exchange for the right to use the Radios that are located on City property and that were abandoned by Metricom and for the right to install and operate new Radios on the Public Way or on other City property, RNI shall provide City, without charge, ten (10) Ricochet modems and an equal number of Ricochet Basic Service subscriptions. The City's right to use the subscriptions shall commence at the time that Ricochet service is commercially available in the City and shall extend until the expiration of the term of this Use Agreement and any renewal hereof. 4.2 Government and Public Safety Uses. RNI shall provide to the City, without charge, thirty (30) Ricochet modems and an equal number of Ricochet Basic Service subscriptions, to be utilized for government use and public safety applications. The City's right to use the subscriptions shall commence at the time that Ricochet service is commercially available in the City and shall extend until the expiration of the term of this Permit and any renewal hereof. Users of City's subscriptions, regardless of the manner in which they were obtained, shall be governed by the same standard Ricochet terms and conditions of use applicable to other users. The City shall use at least seventy-five percent (75%) of all Basic Service subscriptions provided pursuant to this section solely for its own public safety use and shall not be entitled to resell, distribute, or otherwise permit the use of same by any other person, except a local entity that provides public safety services within the corporate boundaries of the City (i.e., school safety personnel, police departments, emergency medical departments, fire departments, etc.). The level of benefits and service provided to City by RNI as Basic Service shall not be diminished or reduced during the term of this Permit or renewal thereof or prior to its cancellation or termination, as the case may be. 4.3 City Access Program Subscription Rate. In addition to the modems and subscriptions provided pursuant to Section 4.1 and 4.2, the City is eligible to participate in the Ricochet Government Volume Discount Program. Ricochet modems and services must be purchased and billed through an individual City master account(s) in order to qualify for the Government Volume Discount Program. City may obtain Ricochet modems and services according to the pricing, terms and conditions of the Ricochet Government Volume Discount Program shown in attached Appendix A. 4.4 Reimbursement of City's Expenses. RNI shall reimburse the City at City's standard rates for all reasonable internal expenses relating to the preparation, issuance, and implementation of this Permit, promptly upon receipt of bills, paid invoices, and such other documentation as RNI shall reasonably require. 4.5 WAP Fee. Should RNI desire to site a new WAP in the Public Way or on City owned facilities or property, RNI shall provide to the City, without charge, twenty-five (25) Ricochet modems and an equal number of Ricochet Basic Service subscriptions for each such new WAP site. The City's right to use the subscriptions shall commence at the time that Ricochet utilizes the new WAP for commercial operation and shall extend until the expiration of the term of this Permit and any renewal hereof. 4.6. Potential Utility Users' Tax. RNI acknowledges and agrees that the City may, if authorized by applicable law and if assessed in a non-discriminatory manner, require users of revenue - producing telecommunications services such as the Services to pay a utility users' tax ("Utility Tax") to the City pursuant to applicable statute. If the City determines that the Services are lawfully subject to a Utility Tax, RNI agrees to collect the tax from Service users and to remit such tax to the City in accordance with applicable law. 4.7 Possessory Interest Tax. RNI recognizes and understands that this agreement may create a possessory interest subject to property taxation, and RNI may be subject to the payment of property taxes levied on such interest. RNI further agrees to pay any and all property taxes, if any, assessed during the term of this agreement pursuant to Sections 107 and 107.1 of the Revenue and Taxation Code against RNI's possessory interest. 4 5. Removal and Relocation of Radios. RNI understands and acknowledges that City may require RNI to relocate one or more of the Radios, and RNI shall at City's direction relocate such Radios at RNI's sole cost and expense, whenever City reasonably determines that the relocation is needed for any of the following purposes: (a) to facilitate or accommodate the construction, completion, repair, relocation, or maintenance of a City project; (b) because the Radio is interfering with or adversely affecting proper operation of City light poles, traffic signals, or other City facilities; or (c) to protect or preserve the public health, safety, or welfare. Upon notice from the City, RNI shall promptly remove or relocate any Radio so designated by the City. If RNI shall fail to relocate any Radios as requested by the City in accordance with the foregoing provision, City shall be entitled to relocate the Radios at RNI's sole cost and expense, without further notice to RNI. 5.1 RNI Desires Relocation. In the event RNI desires to relocate any Radios from one City -owned pole or other property to another City -owned pole or other property, RNI shall notify City in writing. City will use its best efforts to accommodate RNI by making another functionally equivalent City -owned pole or other City -owned property available for use in accordance with and subject to the terms and conditions of this Permit. 5.2 Damage to Public Way. Whenever the installation, removal, or relocation of Radios is required under this Permit, and such removal or relocation shall cause the Public Way to be damaged, RNI, at its sole cost and expense, shall promptly repair and return the Public Way in which the Radios are located to a safe and satisfactory condition to the satisfaction of the City's Director of Public Works. If RNI does not repair the site as just described, then the City shall have the option, upon fifteen (15) days' prior written notice to RNI, to perform or cause to be performed such reasonable and necessary work on behalf of RNI and to charge RNI for the proposed costs to be incurred or the actual costs incurred by the City at City's standard rates. Upon the receipt of a demand for payment by the City, RNI shall promptly reimburse the City for such costs. 6. Indemnification and Waiver. 6.1 Indemnification. RNI agrees to indemnify, defend, protect, and hold harmless the City, 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, judgments, 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") arising, directly from or proximately resulting from RNI's activities undertaken pursuant to this Permit, except to the extent arising from or caused by the negligence or willful misconduct of the City, its council members, officers, employees, or agents, or contractors. 6.2 Waiver of Claims. RNI waives any and all claims, demands, causes of action, and rights it may assert against the City on account of any loss damage, or injury to any Radio or any loss or degradation of the Services as a result of any event or occurrence which is beyond the reasonable control of the City. 6.3 Limitation of City's Liability. The City shall be liable only for the reasonable cost of repair to damaged Radios arising from the negligence or willful misconduct of City, its employees, agents, or contractors. 6.4 Defense. RNI shall have the right to defend the City with regard to all damages and penalties arising in any way out of the exercise of any rights in this Permit. Within thirty (30) days after receipt of same by the City attorney, the City will provide notice to RNI of the assertion of any claim or action arising out of the exercise by RNI of its rights under this Agreement. RNI will be allowed, at its own expense, to appear and defend or assist in the defense of such claims. 7. Insurance. 7.1 General Liability and Automobile Insurance. RNI shall obtain and maintain at all times during the term of this Permit commercial general liability insurance with a One Million Dollars ($1,000,000) per occurrence limit and One Million Dollars ($1,000,000) annual aggregate limit. Such general liability coverage shall cover bodily injury, property damage, products -completed operations and personal injury. RNI shall also obtain and maintain commercial automobile liability insurance with a One Million Dollars ($1,000,000) combined single limit. Such insurance policies shall list the City, its council 5 members, officers, and employees as additional insureds as respects any covered liability arising out of RNI's performance of work under this Permit. Coverage shall be in an occurrence form and in with the limits and provisions specified herein. When an umbrella or excess coverage is in effect, the umbrella coverage shall be the same as the primary coverage. Such insurance shall not be canceled or materially altered to reduce the policy limits until the City has received at least thirty (30) days' advance written notice of such cancellation or change. RNI shall be responsible for notifying the City of such change or cancellation. 7.2 Filing of Certificates and Endorsements. Prior to the commencement of any work pursuant to this Permit, RNI shall file with the City the required original certificate(s) of insurance with endorsements, subject to the City's prior approval, 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 City shall receive thirty (30) days' prior notice of cancellation; and (c) that RNI's insurance is primary as respects any other valid or collectible insurance that the City may possess, including any self -insured retentions the City may have; and any other insurance the City does possess shall be considered excess insurance only and shall not be required to contribute with this insurance. The certificate(s) of insurance with endorsements and notices shall be mailed to the City as the address specified in Section 8 below: 7.3 Workers' Compensation Insurance. RNI shall obtain and maintain at all times during the term of this Permit statutorily required workers' compensation insurance for any of its employees and shall furnish the City with a certificate showing proof of such coverage. 7.4 Insurer Criteria. Any insurance provider of RNI shall be admitted and authorized to do business in California and shall be rated at least "B+:XIII" in the most recent A.M. Best & Company's Insurance Guide. Insurance policies and certificates issued by non -admitted insurance companies are not acceptable. 7.5 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 City. "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 8.1 Form of Notice and Notice Address. All notices which shall or may be given pursuant to this Permit 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 City: CITY OF NATIONAL CITY Attn: City Manager 1243 National City Boulevard National City, CA 91950 If to RNI: RICOCHET NETWORKS, INC. Attn: Legal Counsel 1400 Glenarm Place, Suite 100 Denver, CO 80202 8.2 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. 9.1 Notice; Rights of Termination. This Permit may be terminated by either party upon forty five (45) days' prior written notice to the other party upon a default of any 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 Permit are irrevocable during the term. Notwithstanding the provisions regarding the opportunity to cure defaults, the City may terminate this Permit if (a) RNI becomes insolvent, unable or unwilling to pay its debts, or is adjudged bankrupt; (b) RNI attempts to or does practice any fraud or deceit in its conduct or relations with the City under this Permit; or (c) the City condemns substantially all of the property of RNI within the City by lawful exercise of eminent domain. 9.2 Economic Viability. This Permit may be terminated by RNI upon forty-five (45) days' prior written notice to City if the City should not prove to be an economically viable market. 9.3 Bankruptcy. In the event that RNI exercises its rights under Section 9.2 or is involved in a voluntary or involuntary bankruptcy under the Bankruptcy Act which results in the discontinuance of Ricochet service in the City, RNI hereby grants to the City the unilateral and irrevocable right, to be exercised within one hundred twenty (120) days after notice to the City from RNI, to purchase, at a fair market value, a non-exclusive license and right to use the Ricochet technology needed to conduct City municipal business within the boundaries of the City. Upon RNI's exercise of its rights under Section 9.2 or upon any action within a voluntary or involuntary bankruptcy under the Bankruptcy Act where service is proposed to be discontinued, the City shall have such a nonexclusive license and right to use the Ricochet technology. This right shall expire after one hundred twenty (120) days following RNI notice to the City as described above, or after a fair market value for the license is determined, and a license agreement becomes effective, whichever is longer. RNI will, within sixty (60) days after this Permit becomes effective, deposit with a third party escrow agent, designated by RNI, source codes corresponding to the Ricochet Technology and any additional information and RNI proprietary software that the City would require to maintain and operate the Network for internal communication. Modified source codes and/or proprietary software will be delivered to the escrow agent during the term of this Permit and any renewal hereof, within sixty (60) days of modification. The escrow will provide that the source code, documentation and proprietary software will be delivered to the City pursuant to this Section 9.3. 9.4 Fees. City will pay all costs associated with obtaining and maintaining a third party escrow as required pursuant to Section 9.3. 10. Assignment. This Permit shall not be assigned by RNI to any party, other than to a subsidiary, or parent of RNI upon corporate reorganization, or an affiliate entity, without the express written consent of the City, which consent shall not be unreasonably withheld, conditioned, or delayed. In the event RNI assigns the Permit to a subsidiary, parent or affiliate entity, RNI shall provide the City with notice of such assignment and shall provide the City with relevant information about the assignee's qualifications. Any such subsidiary or parent entity will continue to provide the Services to the City required by this Permit. 11. Miscellaneous Provisions. The provisions that follow shall apply generally to the obligations of the parties under this Permit. 11.1 Nonexclusive Use. RNI understands that this Permit does not provide RNI with exclusive use of any City -owned poles or property, other than the Radios, and that City shall have the right to permit other providers of telecommunications services to install equipment or devices in the 7 Public Way; however, City agrees to promptly notify RNI of the receipt of a proposal for the installation of telecommunications equipment or devices in the Public Way, and to obtain written assurance from the proponent of such installation that its installation or operation will not interfere with any of RNI's existing operations, regardless of whether a license is required by the FCC for the operation thereof. In addition, City agrees to advise other providers of information or telecommunications services of the presence or planned deployment of the Radios in the Public Way. 11.2 Amendment of Permit. This Permit may not be amended except pursuant to a written instrument signed by both parties in the same manner as this Permit. 11.3 Severability of Provisions. If any one or more of the Provisions of this Permit 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 Permit and shall in no way affect the validity of the remaining portions of this Permit and shall not affect the legality, validity, or constitutionality of the remaining portions of this Permit. Each party hereby declares that it would have entered into this Permit and each Provision hereof irrespective of the fact that any one or more Provisions be declared illegal, invalid or unconstitutional. 11.4 All -Hours Contact. RNI shall be available to the staff employees of any City department having jurisdiction over RNI'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 City may contact by telephone the network control center operator regarding such problems or complaints. 11.5 Governing Law; Jurisdiction. This Permit shall be governed and construed by and in accordance with the laws of the State of California, without reference to its conflict of law principles. 11.6 Exhibits. All exhibits referred to in this Permit and any addenda, attachments, and schedules which may from time to time be referred to in any duly executed amendment to this Permit are by such reference incorporated in this Permit and shall be deemed a part of this Permit. 11.7 Successors and Assigns. This Permit is binding upon the successors and assigns of the parties hereto. 11.8 Advice of Displacement. To the extent the City has actual knowledge thereof, the City will inform RNI of the displacement or removal of any City -owned pole on which any Radio is located. 11.9 Consent Criteria. In any case where the approval or consent of one party hereto is required, requested or otherwise to be given under this Permit, such party shall not unreasonably delay, condition or withhold its approval or consent. 11.10 Waiver of Breach. The waiver by either party of any breach or violation of any Provision of this Permit 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 Permit. 11.11 Representation and Warranties. Each of the parties to this Permit 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 Section 3.3 above. 11.12. Entire Agreement. This Permit 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 Permit, which are not fully expressed herein. In witness whereof, and in order to bind themselves legally to the terms and conditions of this Permit, the duly authorized representatives of the parties have executed this Permit as of the date first written above. City: CITY OF NATIONAL CITY, a California municipal corporation By: Title: Mayor Date: March 18, 7001 RNI: RICOCHET NETWORKS, INC., a Delaware corporation Taxpayer (IfS'Jdentification No. 84-1602594 j By: ` �`-- ;f Title: 14trn(1A RA�lbny&rAl ' P 1D k�lb at) Irl Date: i( 12 2.oD3 9 APPENDIX A RICOCHET GOVERNMENT VOLUME DISCOUNT PROGRAM Government entities are eligible for volume discounts based on their total number of Ricochet Service subscriptions. The City must apply for a Ricochet Master Account with direct billing of all users under the volume discount purchase. The discount will be applied as a line item on the monthly invoice based on the total number of subscriptions. RNI reserves the right to change the pricing or discounts at any time provided a 30-day advance written notice is given to users. RNI may change our policies and operating procedures at any time. Prices and availability of Ricochet Products and Services may vary from time to time. RNI does not offer term discounts or demand term commitments at this time. 1. Ricochet Government Volume Discount Program Rate Schedule k) �I (L 'I i II C dw:.°�5 �il A)gg �•KdJE a45py'�I i�l 5€ [ �ai ��E YF '�p,l:C ($��dnGfrr:S tlh"F� A i� r ""'b4 3p J§ Intl �� I"Aw I 1131II1 F[ �� ri G g tly�l'G'H. p Gi �J GOVT VOLUME DISCOUNT 0-9 MODEMS - STANDARD SERVICE $ 99.95 $ 44.95 NONE GOVT VOLUME DISCOUNT 10-49 MODEMS - STANDARD SERVICE $ 99.95 $ 42.95 NONE GOVT VOLUME DISCOUNT 50-99 MODEMS - STANDARD SERVICE $ 99.95 $ 40.95 NONE GOVT VOLUME DISCOUNT 100+ MODEMS - STANDARD SERVICE $ 99.95 $ 38.95 NONE GOVT VOLUME DISCOUNT 0-9 MODEMS - BASIC SERVICE $ 99.95 $ 42.95 NONE GOVT VOLUME DISCOUNT 10-49 MODEMS - BASIC SERVICE $ 99.95 $ 39.95 NONE GOVT VOLUME DISCOUNT 50-99 MODEMS - BASIC SERVICE $ 99.95 $ 37.95 NONE GOVT VOLUME DISCOUNT 100+ MODEMS - BASIC SERVICE $ 99.95 $ 35.95 NONE 2. Ricochet Standard Service Description Ricochet Modems* $99.95 External or Internal PC card Ricochet Service See Volume Discount Rate Schedule Unlimited usage Activation Charge None 10 Internet Access Included Coverage As available in specific local market area Roaming Unrestricted within specific local market area E-Mail Up to 10 E-Mail accounts Personal Web Space Up to 10 Mb Dial Plan National Dial Service included Customer Service 24x7 Customer Service Hotline & Comprehensive website assistance * Upon activation, each modem will be assigned a minimum of one email address for network verification and tracking purposes. No modem rental options are being offered at this time. Pricing does not include applicable state and local sales and use taxes. RNI reserves the right to change the pricing at any time upon 30-day advance written notice to users. 3. Ricochet Basic Service Description Basic Service is available only to organizations purchasing multiple Ricochet modems and services under a volume discount rate schedule. Ricochet Modems $99'95 External or Internal PC card Ricochet Service See Volume Discount Rate Schedule Unlimited usage Activation Charge None Internet Access None Coverage As available in specific local market area Roaming Unrestricted within specific local market area E-Mail None Personal Web Space None Dial Plan None Customer Service Internal IT Help desk to RNI Tech Support 11 Pricing does not include applicable state and local sales and use taxes. RNI reserves the right to change the pricing at any time upon 30-day advance written notice to users. 4. Equipment Price List Ricochet modems will be sold with all necessary components to use the service. External modems will include USB and Serial port connectors, power cables and battery. PC card modems will include the antennae (if not integrated). Replacement cables, batteries and antennae (if applicable) will be available for purchase on the www.ricochet.com website and/or through customer service. 5. Shipping, Handling and Returned Merchandise Shipping and handling fees will be added to each Modem order at the user's cost. A returned merchandise fee (RMA Fee) will be charged to the local Network Affiliate, Market Partner and/or RNI for modems returned to RNI by users in their Geographic Service Area (GSA). SHSUR Shipping and Handling - Surface - 1st Modem $ 9.95 SH2ND Shipping and Handling - 2nd Day - 1st Modem $ 11.95 SHOV Shipping and Handling - Overnight - 1st Modem $ 15.95 SHAM Shipping and Handling - Each Additional Modem Same Shipment TBD 12 • 6 Other Penalties and Fees Penalties and Fees will be assessed in certain cases of Service cancellations, late payments and delinquent accounts. An activation fee of $35.00 per account will be waived initially but may apply for users who have their service suspended for non-payment, credit or other reasons, and who subsequently want Service reactivated. '..I i j. �', ' 'f`fPEi', "i a 9 it (i I �";i4 � It I) !� �.� i ]E ii ii i.' 7) '" I' ii t) G�'� �F 9t �C '. Sltl II �'�'_"^'!'r Ii °i, �� �i, Ml::i dr 1�,. i�k IC�G (�'...' I �' '. ,,. ,i• y •h i' i. 'r a c Si6 �S 'Y Ci ilg ,�� �a� rI';r j6 (i. (i .i°:,l't,� i61R� y't �• N p �� i;i i1�;. iI3, j) . (. �i� NSF Not Sufficient Funds Fee $ 35.00 LTP30 Late Payment Fee - 30 days 1 1/2% or maximum allowed LTP60 Late Payment Fee - 60 days 1 1/2% or maximum allowed LTP90 Late Payment Fee - 90+ days CANCEL SERVICE; 1 1/2% Monthly recurring until past due paid 13