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R00-095RESOLUTION NO. R00-~,,~" A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF BOYNTON BEACH, FLORIDA, AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE A LICENSE AGREEMENT BETWEEN THE CITY OF BOYNTON BEACH AND METRICOM, INC,. AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City Commission of the City of Boynton Beach, Florida, upon recommendation of staff, hereby authorizes and directs the Mayor and City Clerk to enter into a License Agreement between the City of Boynton Beach and Metricom, Inc.; and NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF BOYNTON BEACH, FLORIDA, THAT: Section 1. The City Commission of the City of Boynton Beach, Florida does hereby authorize and direct the Mayor and City Clerk to execute a License Agreement between the City of Boynton Beach and Metricom, Inc., said Agreement being attached hereto as Exhibit '%". Section2. This Resolution shall become effective immediately upon passage. PASSED AND ADOPTED this ,.~ day of July, 2000. ClTY~'~ B~/~'~BEAC", FLORIDA M Pr0Te~ Co~"~'~ -- Commissioner CITY OF BOYNTON BEACH LICENSE AGREEMENT THIS LICENSE AGREEMENT (this "License") is dated as day of , 2000 (the "Effective Date"), and entered into by and between CITY OF BOYNTON BEACH, a Florida municipal corporation (the "City"), and METRICOM, INC., a Delaware corporation ("Metricom"). Recitals A. Metricom owns, maintains, and operates, in accordance with regulations promulgated by the Federal Communications Commission, a mobile digital data communications radio network known as Ricochet©, utilizing Radios (as defined in section 1.10 below) and related equipment certified by the Federal Communications Commission. B. For purpose of operating Ricochet©, Metricom wishes to locate, place, attach, install, operate, and maintain Radios in the City Right-of-Way (as defined in section 1.8 below) on facilities owned by the City, as well as on facilities owned by third parties therein. Agreement Now, therefore, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree to the following covenants, terms, and conditions: DEFINITIONS. The following definitions shall apply generally to the provisions of this License: 1.1 1.2 1.3 Adjusted Gross Revenues. "Adjusted Gross Revenues" means the gross dollar amount received by Metricom for its Services (as defined in section 1.11 below) provided to subscribers with billing addresses in the City, excluding (i) the Right of Way Fee, if any, payable pursuant to section 4.1 et seq. below and any utility users' tax, communications tax, or similar tax or fee; [NOTE] (ii) local, state, or federal taxes that have been billed to the subscribers and separately stated on subscribers' bills; and (iii) revenue uncollectible from subscribers (i.e., bad debts) with billing addresses in the City that was previously included in Adjusted Gross Revenues. City. "City" means the City of Boynton Beach. Fee. "Fee" means any assessment, license, charge, fee, imposition, tax, or levy of general application to entities doing business in the City lawfully imposed by any governmental body (but excluding any utility users' tax, franchise fees, communications tax, or similar tax or fee). 1.4 Installation Date. "Installation Date" shall mean the date that the first Radio is installed by Metricom pursuant to this License. 1.5 £aws2 "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 License. 1.6 Metri¢om. "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. 1.7 City Facilities. "City Facilities" means City-owned street light poles, lighting fixtures, electroliers, or other City-owned structures located within the City Right- of-Way and may refer to such facilities in the singular or plural, as appropriate to the context in which used. 1.8 1.9 City Right-of-Way. "City Right-of-Way" means the space in, upon, above, along, across, and over the public streets, roads, highways, lanes, courts, ways, alleys, boulevards, sidewalks, bicycle lanes, and places, including all public utility easements and public service easements as the same now or may hereafter exist, located in areas that presently are, or at any time during the License term shall come, under the jurisdiction of the City. This term shall not include county, state, or federal rights-of-way or any property owned by any person or entity other than the City, except as provided by applicable Laws or pursuant to an agreement between the City and any such person or entity in which the City accepts ownership and responsibility for maintenance of the right-of-way. PSC. "PSC" means the Florida Public Service Commission. 1.10 Radio. "Radio" means the radio equipment, whether referred to singly or collectively, to be installed and operated by Metrieom hereunder. 1.11 Services. "Services" means the mobile digital communications services provided through Ricochet© by Metricom. TERM. This License shall be effective as of the Effective Date and shall extend for a term often (10) years commencing on the Installation Date, unless it is earlier terminated by either party in accordance with the provisions herein. The term of this License shall be renewed automatically for three (3) successive terms of five (5) years each on the same terms and conditions as set forth herein, unless Metricom notifies the City of its intention not to renew not less than thirty (30) calendar days prior to commencement of the relevant renewal tenn. [NOTE] Metricom agrees this License shall be subject to furore o City ordinances, roles or regulations that may be adopted by the City consistent with state or federal law. SCOPE OF LICENSE. Any and all rights expressly granted to Metricom under this License, which shall be exercised at Metricom's sole cost and expense, shall be subject to the prior and ~ontinuing right of the City under applicable Laws to use any and all parts of the City Right-of-Way exclusively or concurrently with any other person or entity including but not limited to permitting requirements in City of Boynton Beach's Code as such may be amended from time to time and shall be further subject to all deeds, easements, dedications, conditions, including any applicable zoning regulations and conditions of approval, covenants, restrictions, encumbrances, and claims' of title of record which may affect the City Right-of-Way. Nothing in this License shall be deemed to grant, convey, create, or vest in Metricom a real property interest in land, including any fee, leasehold interest, or easement. 3.1 Attachment to City Facilities. The City, subject to prior review and approval in its sole and reasOnable discretion, authorizes and permits Metricom to enter upon the City Right-of-Way and to locate, place, attach, install, operate, maintain, remove, reattach, reinstall, relocate, and replace Radios in or on City Facilities for the purposes of operating Ricochet© and providing Services. In addition, subject to the provisions of section 4.4 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 City Facilities. City shall not unreasonably delay, condition or withhold its approval or consent. 3.2 Attachment to Third-Party Property. Subject to obtaining the permission of the owner(s) of the affected property, the City hereby authorizes and permits Metricom to enter upon the City Right-of-Way and to attach, install, operate, maintain, remove, reattach, reinstall, relocate, and replace such number of Radios in or on poles or other structures owned by public utility companies or other property owners located within the City 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. 3.3 No Interference. Metricom in the performance and exercise of its rights and obligations under this License 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 City property, without the express written approval of the owner or owners of the affected property or properties, except as permitted by applicable Laws or this License. City agrees to use best efforts to require the inclusion of the same or a similar prohibition on interference as that stated above in all agreements and franchises City may enter into after the Effective Date with other information or communications providers and carriers. 3.4 Compliance with Laws. Metricom shall comply with all applicable Laws in the exercise and performance of its rights and obligations under this License. 3.5 Obtaining Required Permits. If the attachment, installation, operation, maintenance, or location of the Radios in the City Right-of-Way shall require any permits, Metricom shall, if required under applicable City ordinances, apply for the appropriate permits and pay any standard and customary permit fees. City shall promptly respond to Metricom's requests for permits and shall otherwise cooperate with Metricom in facilitating the deployment of Ricochet© in the City Right-of-Way in a reasonable and timely manner. 3.6 Location of Radios. The proposed locations of Metricom's planned initial installation of Radios shall be provided to the City promptly after Metricom's review of available street light maps and prior to deployment of the Radios. Upon the completion of installation, Metricom promptly shall furnish to the City a pole list showing the exact location of the Radios in the City Right-of-Way. COMPENSATION; UTILITY CHARGES. Metricom shall be solely responsible for the payment of all'lawful Fees in connection with Metricom's performance under this License, including those set forth below. 4.1 Right-of-Way Fees. In order to compensate City for Metricom's entry upon and deployment within the City Right-of-Way, Metricom shall pay to the City, on an annual basis, an amount equal to one percent (1%) of Adjusted Gross Revenues (the "Right-of-Way Fee"), which amount may be collected from subscribers of the Services with. billing addresses in the City and remitted to City as provided herein. The Right-of-Way Fee shall be payable for the period commencing upon the date that Services are offered to paying subscribers in the City using Radios 'installed pursuant to this License and ending on the date of termination of this License, and shall be due on or before the 45th day after the end of each calendar year or fraction thereof. Within forty-five (45) days after the termination of this License, compensation shall be paid for the period elapsing since the end of the last calendar year for which compensation has been paid. Metricom shall furnish to the City with each payment of compensation required by this section a statement, executed by an authorized officer of Metrieom or his or her designee, showing the amount of Adjusted Gross Revenues for the period covered by the payment. If Metric, om discovers any error in the correct amount of compensation due, the City shall be paid within thirty (30) days of discovery of the error or determination of the correct amount. Any overpayment to the City through error or othemrise shall be refunded or offset against the next payment due. Acceptance by the City of any payment due under this section shall not be deemed to be a waiver by the City of any breach of this License occurring prior thereto, nor shall the acceptance by the City of any such payments preclude the City from later establishing that a larger amount was actually due or from collecting any balance due to the City. 4.2 4.3 4.1.1 Reduction of Right-of-Way Fee by AmOunt of Utility Users or Communications Tax. Notwithstanding anything to the contrary in this License, if the Services are subject to a utility users tax, communications tax, or other similar tax or fee which accrues to the City by City 'Ordinance, then the amount of the Right-of-Way Fee shall be reduced by the amount of the applicable utility users tax, communications tax,.or such other similar tax or fee. Right to Inspect Financial Records and Facilities. 4.2.1 Metficom shall maintain a complete set of books and records, including plans, contracts, engineering, accounting, financial and statistical records.. 4.2.2 The CITY shall have the right to inspect, at Metricom's local office, if any, and copy the books and records specified in 'subsection 4.2.1 hereof and such other records as may be required by the CITY. The CITY agrees to carry out any such inspection during Metricom's normal business hours and upon reasonable notice. Access by the CITY to Metricom's books and records shall not be denied on grounds that such books and records contain proprietary or confidential information. 4.2.3 The CITY shall accord all books and records that it inspects under this Section the degree of confidentiality such books and records are entitledto under federal and state law. Metricom's books and records shall not constitute public records, except to the extent required by state law. 4.2.4 The CITY shall have the right to inspect Metricom's facilities and property during Metricom's normal business hours and upon reasonable notice. Annual Fee. As compensation for the use of City Facilities, Metricom shall pay to the City an annual fee (the "Annual Fee") in the amount of Sixty Dollars ($60.00) for the use of each City Facility, if any, upon which a Radio has been installed pursuant to this License. The aggregate Annual Fee with respect to each year of the term shall be an amount equal to the number of Radios installed on City Facilities during the preceding twelve (12) months multiplied by the .Annual Fee, prorated as appropriate, and shall be due and payable not later than forty-five (45) days after each anniversary of the Installation Date. City represents and covenants that City owns all City Facilities for the use of which it is collecting fi:om Metricom the Annual Fee pursuant to this section 4.3 4.3.1 CPI Adjustment. Effective commencing on the fifLh (5~) an~.'versary of the Installation Date and continuing on each fifhh (5u) anmversary thereafter during the term, the Annual Fee with respect to the ensuing five-year period shall be adjusted by a percentage amount equal to the percentage change in the U.S. Department of Labor, Bureau of Labor Statistics Consumer Price Index (All Items, All Consumers, 1982- 1984=100) which occurred during the previous five-year period for the South Urban Region Consolidated Metropolitan Statistical Area. 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. RELOCATION AND DISPLACEMENT OF RADIOS. Metricom understands and acknowledges that City may require Metricom to relocate one or more of its Radios, and Metricom shall at City's direction relocate such Radios at Metricom's sole cost and expense, whenever City 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 City project; (b) because the Radio is interfering with or adversely affecting proper operation of City-owned light poles, traffic signals, or other City Facilities; or (c) to protect or preserve the public health or safety. In any such case, City 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 City within a reasonable time under the circumstances in accordance with the foregoing provision, City shall be entitled to relocate the Radios at Metricom's sole cost and expense, without further notice to Metricom. To the extent the City has actual knowledge thereof, the City will attempt promptly to inform Metricom of the displacement or removal of any pole on which any Radio is located. 5.1 Relocations at Metricom's Request. In the event Metricom desires to relocate any Radios from one City Facility to another, Metricom shall so advise the City. City will use its best efforts to accommodate Metricom by making another reasonably equivalent City Facility available for use in accordance with and subject to the terms and conditions of this License. 5.2 Damage to City Right-of-Way or City Facility. Whenever the removal or relocation of Radios is required or permitted under this License, and such removal or relocation shall cause the City Right-of-Way or any City Facility to be damaged, Metricom, at its sole cost and expense, shall promptly repair and return the City Right-of-Way or City Facility in which the Radios are located to a safe and satisfactory condition in accordance with applicable Laws, normal wear and tear excepted. IfMetricom does not repair the site as just described, then the City 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 City at City's standard rates. Upon receipt of a demand for payment by the City, Metricom shall promptly reimburse the City for such costs. INDEMNIFICATION AND WAIVER. Metricom agrees, at its sole cost and expense, to indemnify, defend (at the City Attorney's option), protect, and hold harmless the City, its Commission members, officers, agents, and employees from and against any and all claims, demands, losses, damages, liabilities, fines, charges, penalties, administrative and judicial proceedings and orders, judgments, and all costs and expenses incurred in connection therewith, including reasonable attorney's fees and costs of defense (collectively, the "Losses") directly or proximately resulting from Metricom's activities undertaken pursuant to this License, except to the extent arising from or caused by the negligence Or willful misconduct of the City, its Commission members, officers, employees, agents, or contractors. 6.1 Waiver of Claims. Metricom waives any and all claims, demands, causes of action, and rights it may assert against the 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 occun'ence which is beyond the reasonable control of the City. 6.2 Limitation of City's Liability. The City shall be liable only for the cost of repair to damaged Radios arising from the negligence or willful misconduct of City, its employees, agents, or contractors. Nothing contained in this License, however, shall constitute a waiver of the City's sovereign immunity or the provisions of section 768.28, Florida Statutes. INSURANCE. Unless otherwise specified in this License, Metricom shall, at its sole expense, agree to maintain in full force and effect at all times during the life of this License, insurance coverages, limits, including endorsements, as described herein. The requirements contained herein, as well as City's review or acceptance of insurance maintained by Metricom are not intended to and shall not in any manner limit or qualify the liabilities and obligations assumed by Metricom under this License. 7.1 Without limiting any of the other liabilities of Metricom, Metricom shall furnish evidence to CITY prior to its execution of this License Agreement and shall maintain in force at all times during the term of this Agreement the following insurance: 7.1.1 7.1.2 7.1.3 Commercial General Liability Insurance in an amount of not less than One Million and 00/100 ($1,000,000.00) Dollars per occurrence combined single limit for bodily injury and property damage. This coverage shall include premises and/or Operations, Products and/or Completed Operations, and Broad Form Property Damage. Business Automobile Liability Insurance covering all owned, non-owned, and hired vehicles used in connection with the performance of services under this Agreement in an amount not less than Five Hundred Thousand and 00/100 ($500,000.00) Dollars combined single limit for bodily injury and property damage liability. Workers' Compensation Insurance in compliance with Chapter 440, Florida Statutes, and all applicable federal laws. The policy must include Employers' Liability with a minimum of One Hundred Thousand and 00/100 ($100,000.00) Dollars per accident. 7.2 The insurance coverage obtained by Metricom to comply with this Section shall be approved by the CITY, which approval shall not be unreasonably withheld, and ail certificates of insurance, together with written evidence of payment of required premiums, shail be filed and maintained with the CITY. The certificates of insurance filed pursuant to this subsection must contain a statement that the CITY shall receive at least thirty (30) days' advance written notice of any non- renewal, cancellation, or modification of insurance or reduction in coverage. CITY shail be included as an "Additionai Insured." 7.3 CITY reserves the fight to review and reasonably amend the insurance requirements if it is determined that such adjustments are necessary to protect CITY's interests. CITY shall give Metricom at lease sixty (60) days written notice of any new insurance requirements. Metricom reserves the right to terminate this Agreement on thirty (30) days' written notice to CITY rather than pay any increased insurance costs. Metricom shall furnish CITY with a certificate(s) of insurance whenever CITY so requests, as evidence that such insurance is in force. CITY reserves the right to require a certified copy of such certificate(s) upon request. 7.4 Compliance with the foregoing insurance requirements shail not relieve Metricom of any liability and obligations under this Article or under any other section of this Agreement. 7.5 All insurance policies required in this Article shail be without any deductible amount and shail be issued by companies authorized to do business in the State of Florida, with management and financial strength qualifications set forth by CITY's Risk Management Department. The minimum standard is a current rating by A.M. Best Co. of"B+" or higher. 7.6 CITY'S Right to Review. Rieht to Review. The City, by and through its Risk Management Department, in cooperation with the Engineering Department, reserves the right to review, modify, reject or accept any required policies of insurance, including limits, coverages, or endorsements, herein from time to time throughout the life of this Agreement. The City reserves the right, but not the obligation, to review and reject any insurer or self-insurance plan providing coverage because of its poor financial condition or failure to operate legaily. NOTICES. All notices which shail or may be given pursuant to this License shail be in writing and delivered personaily 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 10. by delivei'y.tl~ough the U.S. mail or by overnight delivery service as just described, addressed as follows: if to the City: City Manager City of Boynton Beach 100 East Boynton Beach Boulevard Boynton Beach, FL 33425-0310 with a copy to: James A. Cherof; City Attorney Josias, Goren, Cherof, Doody & Ezrol, P.A. 3099 East Commercial Boulevard, Suite 200 Fort Lauderdale, FL 33308 if to Metricom: Metricom, INC. At-tn: Network Real Estate 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 business 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. TERMINATION. This License 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 shah be ten (10) days from receipt of notice. Except as expressly provided herein, the rights granted under this License are irrevocable during the term. The parties specifically' reject any applicable law, doctrine, or other legal interpretation or principle that licenses are revocable at the will of the licensor, with the intent and expectation that this Agreement shall only be revocable as specifically provided in this § _9__. ASSIGNMENT. This License shall not be assigned by Metricom without the express written consent of the City, which consent shall not be unreasonably withheld, 9 11. condition~:k or delayed. Notwithstanding the foregoing, the transfer of the fights and obligations of Metricom hereunder to a parent, subsidiary, successor, or affiliate shall not be deemed an assignment for the purposes of this License. ABANDONMENT AND REMOVAL. 11.1 In the event that the use of any Radio within the CITY's rights of way or a portion thereof is discontinued for a continuous period of twelve (12) months, Metricom shall be deemed to have abandoned that property. 11.2 CITY, upon such terms as CITY may impose, may give Metricom permission to abandon, without removing, any System facility or equipment laid, directly constructed, operated or maintained in, on, under or over the right of way. Unless such permission is granted or unless otherwise provided by CITY, Metricom shall remove all such facilities and equipment within thirty (30) days of receipt of written notice from CITY and shall restore any affected Property to substantially its former state at the time such facilities and equipment were installed, so as not to impair its usefulness. In removing its plant, structures and equipment, Metricom shall refill, at its own expense, any excavation made by or on behalf of Metricom and shall leave all Property and other public ways and places in substantially as good condition as that prevailing prior to such removal without materially interfering with any electrical or telephone cable or other utility wires, poles or attachments. CITY shall have the right to inspect and reasonably approve the condition of the Property, streets, public ways, public places, cables, wires, attachments, and poles prior to and after removal. The liability, indemnity and insurance provisions of this Agreement and any security fund provided for herein shall continue in full force and effect during the period of removal and until full compliance by Metricom with the terms and conditions of this Section. 11.3 Upon abandonment of any property in place, Metricom, if required by the CITY, shall submit to CITY a bill of sale and/or other instrument satisfactory in form and content to the CITY, transferring to the CITY the ownership of the property abandoned. ' At the expiration of the term for which the License is granted, or upon its earlier revocation or termination, as provided for herein, in any such case without renewal, extension or transfer, the CITY shall have the right to require Melrieom to commence removing, at its own expense, all above-ground portions of its network from all rights of way, streets and public ways within a reasonable period of time, which shall not be less than one hundred eighty (180) days. 11.5 Metricom may, with the consent of the CITY, abandon any underground property in place so long as it does not materially interfere with the. use of the CITY's street or rights-of-way in which such property is located or with the use thereof by any public utility or other licensee or franchisee. 11. MISCEL-LANEOUS PROVISIONS. The provisions which follow shall apply generally to the obligations of the parties under this License. 12.1 Nonexclusive Use. Metricom understands that this License does not provide Metricom with exclusive use of the City Right-of-Way or any City Facility and that Ci~r shall have the right to permit other providers of communications services to install equipment or devices in the City Right-of-Way and on City Facilities. City agrees promptly to notify Metrieom of the receipt of a proposal for the installation of communications equipment or devices in the City Right-of-Way or on City Facilities. In addition, City agrees to advise other providers of communications services of the presence or planned deployment of the Radios in the City Right-of-Way and/or on City Facilities. 12.2 Waiver of Breach. The waiver by either party of any breach or violation of any provision of thi~ License 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 License. 12.3 Severability of Provisions. If any one or more of the provisions of this License 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 License and shall not affect the legality, validity, or constitutionality of the remaining portions of this License. Each party hereby declares that it would have entered into this License and each provision hereof regardless of whether any one or more provisions may be declared illegal, invalid, or unconstitutional. 12.4 Contacting Metricom. Metricom shall be available to the staff employees of any City department having jurisdiction over Metricom's activities twenty-four (24) hours a day, seven (7) days a week, regarding problems or complaints resulting fi:om the attachment, installation, operation, maintenance, or removal of the Radios. The City may contact by telephone the network control center operator at telephone number (800) 873-3468 regarding such problems or complaints. 12.5 Governing Law; Jurisdiction. This License shall be governed and construed by and in accordance with the laws of,the State of Florida, without reference to its conflicts of law principles. If suit is brought by a party to this License, the parties agree that trial of such action shall be vested exclusively in the Seventeenth Judicial Circuit Court in and for Palm Beach County, Florida, or in the United States District Court for the Southern District of Florida. 12.6 Attorneys' Fees. Any costs or expenses, including reasonable attorneys' fees, associated with the enforcement of the terms of this License shall be borne by the respective parties. This provision, however, pertains only to the partieS to this License. 11 12.7 C~nse~t Criteria. In any case where the approval or consent of one party hereto is required, requested or otherwise to be given under this License, such party shall not unreasonably delay, condition, or withhold its approval or consent. 12.8 Representations and Warranties. Each of the parties to this Agreement represents and warrants that it has the full fight, 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 3.2 above. 12.9 Amendment of License. This License may not be amended except pursuant to a written instrument signed by both parties. 12.10 Entire Agreement. This License 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 License which are not fully expressed herein. 12.11 Records. If the Florida Public Records Act is applicable to Metricom, Metricom shall preserve and make available all records and documents pertinent to this Agreement in accordance with the requirements of Chapter 119, Florida Statutes. In addition, Metricom shall preserve and make available to CITY all financial records, supporting documents, statistical records, and any other documents pertinent to this Agreement for a period of time as required by the Public Records Law or for a period of four (4) years after termination of this Agreement, whichever is longer, or if an audit has been initiated and audit findings have not been resolved at the end 'of these four (4) years, the records shall be retained until resolution of the audit findings. 12.12 No Property Rights. This Agreement shall not be deemed a lease of any CITY property for the use permitted hereunder granting Metricom any property rights or leasehold interest, but rather a license to use and occupy the respective rights of way under the terms and conditions stated herein. (Remainder of page intentionally lef~ blank.) IN WITNESS WHEREOF, and in order to bind themselves legally to the terms and conditions of this License, the duly authorized representatives of the parties have executed this License as of the Effective CITY OF BOYNTON BEACH APPROVED AS TO FORM: OI~iCE OF THE CITY ATTORNEY INC.,a Delaware Corporation L. Au ' P R E RAIE UPS. Date: JUL 1 9 2000 KLE~w \UGCDE_ FS~LIB RARY~ 1990%900182.BB%%. Gl~r%Boymm~. Lgue w Me~-~com 3-21-00 B LA CKLINE.dog Draft No, I [3-15-00] [3-21-00][3-29-00] Approved as to Form ROW ieaal Department By~ ~.-~z~t~3J'~ Oate:---/-j/~jo0 13