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04-029 Metrofi oY - 0 ~C:t NON-EXCLUSIVE INSTALLATION AND SERVICE AGREEMENT BETWEEN CITY OF CUPERTINO AND MetroFi, Inc. This NON-EXCLUSIVE INSTALLATION AND SERVICE AGREEMENT is made and entered into this ~ day of f-1.&...y ,2004 (the "Execution Date"), by and between the CITY OF CUPERTINO, a municipal corporation of the State of California, hereinafter designated as CITY, and MetroFi, Inc., a Delaware corporation, hereinafter designated as MetroFi. RECITALS WHEREAS, MetroFi is a corporation organized under the laws of the state of California with its principal place of business in California; and WHEREAS, MetroFi wireless technology is regulated by the Federal Communications Commission (FCC) who have issued to MetroFi certain nontransferable Equipment Grants enabling MetroFi to provide certain wireless communication services more particularly described in Exhibit A attached hereto (the "SERVICES"); and WHEREAS, MetroFi has made application to the CITY to be allowed to provide its SERVICES in the CITY and, in order to do so, desires to install, operate and maintain its wireless radio repeater equipment (the "PROJECT") in the CITY, all in accordance with the terms, provisions and conditions contained in this AGREEMENT; and WHEREAS, CITY has approved the project plans and specifications (the "PLANS"), a true copy of which are on file in the office of the City Engineer of Cupertino and incorporated fully herein by this reference; and WHEREAS, CITY wishes to regulate the construction, installation, maintenance and operation of projects proposed by telecommunication carriers and providers including MetroFi in the public right of way, public easement and public service easement within the CITY and to further protect the public health, safety and welfare; NOW, THEREFORE, for good and valuable consideration, the parties hereby agree as follows: 1 SECTION 1. AGREEMENT 1.1 TERM The term of this AGREEMENT shall be for a period of five (5) years, commencing on the Execution Date and ending on that date in the year 2009, unless it is earlier terminated by either party in accordance with the provisions herein. 1.2 RENEWAL The term may be renewed for successive five-year periods of time upon one hundred and eighty (180) days prior written notice by MetroFi to the CITY, provided that MetroFi is not in default under this AGREEMENT. The CITY reserves the right to deny, amend or renegotiate a renewal AGREEMENT in accordance with any applicable ordinance. 1.3 PLANS AND SPECIFICATIONS MetroFi will submit plans and specifications to the City Engineer and CITY will review and approve certain plans and specifications for the PROJECT prior to issuing an encroachment permit, said PLANS being incorporated herein by this reference. Approval by CITY of the PLANS shall not release MetroFi from the responsibility for or the correction of any errors, omissions or other mistakes that may be contained in the PLANS. MetroFi shall demonstrate to the satisfaction of the City that the light pole mast arms on which MetroFi proposes to mount its equipment are capable of supporting the equipment without being damaged, and that the equipment will be securely attached to the mast arms. In order to meet this requirement, MetroFi shall produce relevant specifications and, if deemed necessary by the City, a structural analysis performed by an appropriate professional. 1.4 RADIO FREQUENCY RADIATION ASSESSMENT A comprehensive radio frequency radiation (RFR) assessment is required for all proposed personal wireless service facilities established in residential areas and facilities where the antennas are mounted less than 10 meters above ground level. The purpose of the assessment is to ensure that your RFR emissions are within adopted federal RFR exposure standards as embodied in the Federal Communications Commission Guidelines published in 1996. Your assessment shall be prepared by a California state-registered radio frequency engineer or someone of superior qualifications. The assessment shall document existing ambient RFR emissions in those areas identified by City to contain existing RF radiators, and worst case projections of power densities and public exposure, that is ground level exposure and potential upper story residential exposure. This assessment is due prior to the City issuing any encroachment permits for installations of facilities. 2 SECTION 2. SCOPE OF AGREEMENT 2.1 LIMIT A TIONS OF RIGHTS All rights granted to MetroFi under this AGREEMENT shall be subject to the prior and continuing right ofthe CITY to use any and all parts of the public rights of way exclusively or concurrently with any other person and shall be further subject to all deeds, easements, dedications, conditions, covenants, restrictions, encumbrances, and claims of title which may affect the public rights of way. CITY and MetroFi agree that nothing contained in or contemplated by this AGREEMENT is intended to confer, convey, create or grant to MetroFi any perpetual real property interest in any CITY property or in any of the CITY's public rights of way including any fee, leasehold interest, or easement. 2.2 RIGHTS GRANTED During the term of this AGREEMENT, MetroFi is authorized to install, operate, repair and maintain at MetroFi's sole cost and expense, wireless radio repeaters, or such comparable equipment if MetroFi first obtains the approval of the CITY for the use and installation of other comparable equipment, within public rights of way throughout the CITY in accordance with the approved PLANS in order to provide services to CITY and citizens located within the boundaries of CITY. MetroFi shall not install, operate, repair or maintain any wireless radio repeaters or comparable equipment on any property of CITY, except as expressly authorized by and in strict compliance with this AGREEMENT. 2.3 FACILITIES AND SERVICES Under the terms of this AGREEMENT, the facilities and services to be provided by MetroFi are limited to those facilities and services specifically described in Exhibit A attached hereto and incorporated fully herein by this reference. IfMetroFi intends to change or provide any additional facility or service, the CITY must be notified in writing prior to said additions or changes. The CITY shall have the right to either (1) accept the proposed change or additional facilities or services on such terms as the parties find mutually agreeable in which case Exhibit A shall be revised appropriately, or (2) require that the facilities or services not be changed but rather continue to be provided as contemplated in the current AGREEMENT. The parties shall negotiate in good faith the terms and conditions under which MetroFi shall be permitted to offer the proposed additional or changed services or facilities. Any additional facility or service requested may be subject to additional permits, fees or deposits. 2.4 EMERGENCY REMOVAL OR RELOCATION Notwithstanding Subsection 2.2 above, MetroFi understands and acknowledges that CITY may require MetroFi to remove or relocate certain installed equipment, and MetroFi shall, at CITY's direction or request, remove or relocate said equipment immediately, at MetroFi' s sole cost and expense, whenever CITY determines that the removal or relocation is necessary: (1) to facilitate or accommodate the construction, completion, repair, relocation or maintenance of a CITY project, (2) because the installed equipment is interfering with or adversely affecting proper operation of CITY facilities, or (3) to protect or preserve the public 3 health, safety, welfare or interest. Where feasible, the CITY agrees to give prior notice to MetroFi when facilities must be removed or relocated. 2.5 RELOCATION BY MetroFi In the event MetroFi desires to relocate any radios from one City-owned pole or other property to another City-owned pole or property, MetroFi shall notify CITY in writing by applying for an encroachment permit. CITY will use its best efforts to accommodate MetroFi by making another functionally equivalent City-owned pole or other City-owned property available where possible for use in accordance with and subject to the terms and conditions of this AGREEMENT. 2.6 RESTORATION Upon the completion of each task or phase of work to be performed by MetroFi under this AGREEMENT and upon expiration, completion or earlier termination of this AGREEMENT, MetroFi shall, at its sole cost and expense, promptly restore all work site areas to a clean and safe condition and to new construction standards. The provisions of this paragraph shall survive the expiration, completion or earlier termination of this AGREEMENT. 2.6 RESTORATION UPON TERMINATION Unless CITY and MetroFi agree otherwise, upon expiration, completion or earlier termination of this AGREEMENT, MetroFi shall promptly, safely and carefully remove all equipment from all CITY property and return the CITY property to the condition in which the property existed immediately prior to MetroFi's installation. IfMetroFi fails to commence this removal within thirty (30) days from the expiration date or earlier termination date of this AGREEMENT or fails to diligently pursue this removal work to its completion, the CITY shall have the right to perform this removal at MetroFi's sole cost and expense. The provisions of this paragraph shall survive the expiration, completion or earlier termination of this AGREEMENT. 2.7 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. MetroFi 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 MetroFi fails to replace or modify any radio within the thirty-day notice period before voltage modification, the CITY may disconnect any such radio until MetroFi performs and completes the necessary work and advises CITY accordingly. 2.8 LOSS OR DAMAGE The CITY bears no liability for loss or damage to equipment and materials installed on CITY property or public rights of way. 4 SECTION 3. INST ALLA TION 3.1 WORKMANSHIP MetroFi shall perform any work ofthe project at MetroFi's sole cost and expense and in accordance with and in a manner that satisfies the City Engineer and conforms to the PLANS. The work shall be done in accordance with all State and County Statutes applicable hereto. It is further agreed that the work shall be done in accordance with the most current Standard Specifications of the State of California, Department of Transportation, and in accordance with the specifications of the City of Cupertino and the Cupertino Sanitation District where applicable. The decision of the City Engineer shall be final as to whether any material or workmanship meets the standards, specifications, plans, and grades as set forth. 3.2 TIME SCHEDULE All work to be performed by MetroFi under this AGREEMENT shall be commenced and completed in accordance with a time schedule agreed upon in advance by the parties. MetroFi shall notify the City Engineer at least twenty-four (24) hours but not more than one (1) week prior to either the commencement or cancellation of each phase of work to be performed by MetroFi under this AGREEMENT. 3.3 PLAN MODIFICATION City Engineer shall have the authority to approve modifications to the plans or to the agreed upon schedule. Change of equipment locations listed on the plans or change of the number of connections or installations listed on the plans shall be considered a modification and must be approved by the City Engineer prior to installation. An Encroachment Permit must be secured by MetroFi from the CITY for each additional installation or removal or relocation. CITY agrees to waive the Encroachment Permit fee for each additional installation. Upon completion of the installation, MetroFi promptly shall furnish to the CITY accurate plans listing, in detail, exact location of the facilities in the public right-of-way. At the time of any new installation, a rental fee will be charged on a prorated basis. 3.4 TIME EXTENSION Extension of the work completion dates listed on the agreed upon schedule shall be considered a modification and must be approved by the City Engineer. During any approved extension period, all the terms and conditions of this AGREEMENT shall remain in full force and effect and MetroFi agrees to maintain all insurance policies, bonds and other security instruments required to be maintained by MetroFi during the term of this AGREEMENT. The CITY disclaims any and all liability for damages, including, without limitation, any consequential or incidental damages, for any delay in the construction work. 5 SECTION 4. PERMITS. FEES AND DEPOSITS 4.1 PERMITS MetroFi shall obtain all applicable permits as are required by CITY to perform the work of the PROJECT described in this AGREEMENT. MetroFi shall timely pay to CITY all applicable deposits and fees or amounts required by the terms of this AGREEMENT and as required by any federal, state or local law, statute, ordinance, rule or regulation. 4.2. SECURITY DEPOSIT The CITY has on deposit Eight thousand dollars ($8,000.00) for the removal of the original Metricom facilities. MetroFi agrees to remove and dispose of the existing Metricom facilities for the CITY in exchange for the use of this deposit. The CITY shall have the right to draw against this deposit in the event of a default by MetroFi or to cover the costs for the removal of the encroachment and any repairs that may be required to the site in the event that MetroFi fails to meet and fully perform any of its obligations hereunder. Within ten days of written notice from the CITY, MetroFi shall renew or replace such sums of money as shall bring the security deposit current. Any additional facilities added above the initial 175 facilities installed during the term of this agreement shall require a security deposit of Forty-Five dollars ($45.00) per pole paid with the encroachment permit. The security deposit per pole rate shall be increased annually on the anniversary of this agreement based on the current Consumer Price Index (CPI) (all urban consumers) rate at the time of the anniversary. Any new radios installed by encroachment permit will be at the new security deposit rate. 4.3 DEPOSIT REFUND The Security Deposit shall be refunded to MetroFi upon completion of the removal of the encroachment and any repairs necessary to restore the site to the City's satisfaction. The deposit shall be released thirty (30) days after the City Engineer's inspection and acceptance of the work. No release of cash, check or certificate of deposit shall be made except upon approval of the CITY. 4.4 ENCROACHMENT PERMIT FEE Prior to the CITY issuing any encroachment permits, MetroFi shall have deposited with the CITY all applicable current fees adopted by City Council, unless waved herein, along with the security deposit per pole and the annual rental fee per pole. The encroachment permit fee shall be waved as stated above. Should construction costs vary materially from the estimate from which said sum is calculated, the City Engineer shall notify MetroFi of any additional sum due and owing as a result thereof. 4.5. UTILITY USERS EXCISE TAX If, for purposes of collecting utility users excise tax, the services described herein to be provided by MetroFi are deemed to be telephone services and are subject to the CITY's utility users tax pursuant to Cupertino Municipal Code Chapter 3.34, MetroFi agrees to collect any applicable utility users tax from the users of its SERVICES and remit to CITY monthly. 6 4.6 ANNUAL RENTAL FEE MetroFi agrees to pay an annual fee to compensate CITY for the use of the public rights of way under the terms of this AGREEMENT. The Annual Fee will be calculated at a base rate of Thirty Six Dollars and No Cents ($36.00) per pole for overhead facilities and shall be due and payable in advance to CITY annually dated from the Execution Date of this AGREEMENT. The base rate shall be increased annually on the anniversary of the date of execution of this agreement, based on the most current CPI (all urban consumers) at the time of the anniversary date. The annual rental fee for the upcoming year shall be due and payable to CITY on the anniversary date. Rent not received by CITY on or before the 30th day after the anniversary date shall be considered in default. Rent for any additional facilities added during the year will be prorated and paid at the time of installation and annually thereafter. Based upon the project plans submitted by MetroFi and on file in the office of the City Engineer of Cupertino, MetroFi proposes overhead installation on 175 poles. The Annual Fee for MetroFi is determined by the following formula: 175 poles x $36.00 = $ 6,300.00 Annually, 30 days prior to the anniversary date, MetroFi will provide an inventory report that will be the basis for the annual rental fee for the upcoming year. 4.7 FRANCHISE FEE Notwithstanding any other provision of this AGREEMENT, MetroFi acknowledges and agrees that if and when CITY requires providers of communications services such as MetroFi to pay to CITY a franchise fee to compensate CITY fairly for the use of CITY's public rights of way with respect to the communications services provided therein or thereon, MetroFi hereby agrees that MetroFi's use of CITY's public rights of way shall be subject to an equal annual percentage franchise fee and MetroFi shall comply fully with all applicable terms, provisions and requirements of the franchise fee legislation enacted by CITY. 4.8 ELECTRICITY CHARGES MetroFi shall be solely responsible for the payment of all electrical utility charges and connection charges to the applicable utility company based upon the radio usage of electricity and applicable tariffs. MetroFi agrees to reimburse the CITY for any additional electrical utility charges incurred by the CITY solely based upon attachment of the radios, provided the CITY shall furnish to MetroFi sufficient documentation from the utility company indicating with reasonable certainty that the additional charge was directly attributable to MetroFi's radios. 4.9. SERVICES During the term of this AGREEMENT MetroFi agrees to provide the CITY any services mutually agreed upon in a separate agreement. 7 SECTION 5 INDEPENDENT CONTRACTOR 5.1 INDEPENDENT CONTRACTOR It is understood and agreed that MetroFi, in the performance of the work and SERVICES agreed to be provided by MetroFi under this AGREEMENT, shall act as and be an independent contractor and not an agent or employee of CITY. As an independent contractor, MetroFi shall acquire no rights to any benefits that accrue to CITY's employees, and MetroFi hereby expressly waives any claim it may have to any such rights. SECTION 6 MAINTENANCE AND OPERATION 6.1 DUE CARE MetroFi shall use and exercise due care, caution, skill and expertise in performing and maintaining all work under this AGREEMENT and shall take all reasonable steps to safeguard work site areas, including without limitation, existing facilities and property. 6.2 DUTY TO REPAIR MetroFi shall, upon notice, immediately repair or replace, without cost or obligation to the CITY, and to the satisfaction ofthe CITY, all defects and imperfections arising out of or due to faulty workmanship and/or materials. 6.3 DAMAGE TO THE PUBLIC RIGHT OF WAY Whenever the installation, removal, or relocation of radios occurs under this AGREEMENT, and such removal or relocation shall cause damage to the public right of way, MetroFi, at its sole cost and expense, shall promptly repair and return the public right of way to a safe and satisfactory condition to the satisfaction of the City Director of Public Works. IfMetroFi does not repair said damage, the CITY shall have the option, upon fifteen (15) days' prior written notice to MetroFi, to perform or cause to be performed such reasonable and necessary work on behalf of MetroFi and to charge MetroFi for the costs incurred by the CITY at CITY's standard rates. Upon receipt of a demand for payment, MetroFi shall reimburse the CITY for such costs within thirty (30) days. 6.4 CITY REOUIRED MODIFICATIONS If, during the course of the project, the CITY determines that the public health, safety or welfare requires a modification of or a departure from the PLANS or SERVICES agreed upon herein, the CITY shall have the authority to identify, specify and delineate the modification or departure. The CITY shall provide METROFI with a written description of the required modification or departure, the public health, safety or welfare issue necessitating the modification or departure, and the time within which MetroFi shall make, complete or maintain the necessary modification or departure. 6.5 REPRESENT A TION AND WARRANTIES MetroFi acknowledges that CITY has made no warranties or representations regarding the fitness or suitability of any of CITY's property or rights of way for the installation of MetroFi equipment or for this 8 PROJECT and that any performance of work or costs incurred by MetroFi or provision of SERVICES contemplated under this AGREEMENT by MetroFi is at MetroFi's sole risk. SECTION 7 ASSIGNABILITY 7.1 ASSIGNABILITY The parties agree that the expertise and experience of MetroFi are material considerations inducing the CITY to enter into this AGREEMENT. MetroFi shall not assign, sell, lease, merge, consolidate or transfer any interest in this AGREEMENT nor the performance of any of MetroFi' s obligations herein, without prior written consent of the CITY, and any attempt by MetroFi to so assign this AGREEMENT or any rights, duties or obligations arising herein shall be void and of no effect. The consent of the CITY will not be unreasonably withheld. Notwithstanding the foregoing, MetroFi shall have the right to assign its rights under this AGREEMENT without the consent of the CITY to any of its subsidiaries or affiliates of which MetroFi maintains twenty-five percent legal or equitable interest, provided however, that MetroFi shall not be released from any obligation under this AGREEMENT. SECTION 8 INDEMNIFICATION 8.1 INDEMNIFICATION MetroFi shall protect, defend, indemnify and hold harmless the CITY, its officers, employees and agents against any claim, loss or liability arising out of or resulting in any way from work performed or SERVICES provided under this AGREEMENT due, in whole or in part, to the willful misconduct or negligent acts, active or passive, or omissions by MetroFi, its officers, employees, sublicensees, subcontractors or agents. MetroFi's obligations to indemnify and hold harmless exclude only such claim, loss or liability which is due to the sole negligence or willful misconduct of CITY and/or its agents. All MetroFi's obligation under this SECTION are intended to apply to the fullest extent permitted by law and shall survive the expiration or sooner termination of this AGREEMENT. In any action or claim against CITY in which MetroFi is defending CITY, CITY shall have the right to approve legal counsel providing CITY's defense. 9 SECTION 9. INSURANCE 9.1 INSURANCE MetroFi, at MetroFi's sole cost and expense, shall procure and maintain for the duration of this AGREEMENT, including any extensions of this AGREEMENT and during the period that MetroFi is performing any work upon the expiration or earlier termination of this AGREEMENT to remove the equipment from CITY property, insurance against claims for injuries to persons or damage to property which may arise from, or in connection with, the performance of the work or provision of SERVICES hereunder by MetroFi, its agents, representatives, employees or subcontractors. 9.2. MINIMUM SCOPE OF INSURANCE The coverage shall include Commercial General Liability together with Broad Form Comprehensive General Liability including explosion, collapse and underground; Automobile liability including Code 1 (any auto), Code 2 (owned autos), Code 8 (hired autos) and Code 9 (nonowned autos); Workers' Compensation as required by the California Labor Code and Employers Liability Insurance. 9.3. MINIMUM LIMITS OF INSURANCE MetroFi shall maintain limits no less than one million dollars ($1,000,000) combined single limit per occurrence for bodily injury, personal injury and property damage in Commercial General Liability; two million dollars ($2,000,000) in aggregate for public liability and one million dollars ($1,000,000) combined single limit per accident for bodily injury and property damage in Automobile Liability; and Workers' Compensation and Employers Liability limits of one million dollars ($1,000,000) per occurrence. 9.4 DEDUCTIBLES AND SELF-INSURED RETENTION Any deductibles or self- insured retention must be declared to, and approved by the CITY. 9.5 POLICY PROVISIONS The following provisions must be included in the policies: 1. The CITY of Cupertino, its officers, employees, agents and contractors are to be covered as additional insureds regarding liability arising out of activities performed by or on behalf of, MetroFi, products and completed operations ofMetroFi, premises owned, leased or used by MetroFi, and vehicles owned, leased, hired or borrowed by MetroFi. The coverage shall contain no special limitations on the scope of protection afforded to the CITY, its officers, employees, agents and contractors. 2. MetroFi' s insurance coverage shall be primary insurance as respects the CITY, its officers, employees, agents and contractors. Any insurance or self-insurance maintained by the CITY, its officers, employees, agents or contractors shall be excess of MetroFi's insurance and shall not contribute with it. 10 3. Any failure to comply with reporting provisions of the policies by MetroFi shall not affect coverage provided the CITY, its officers, employees, agents or contractors. 4. Coverage shall state that MetroFi's insurance shall apply separately to each insured against whom a claim is made or suit is brought, except with respect to the limits of the insurer's liability. 5. All policies required by this AGREEMENT shall be endorses to state that coverage shall not be suspended, voided, canceled or reduced in limits except after thirty (30) days prior written notice has been given to the CITY. 9.6. ACCEPT ABILITY OF INSURERS The insurance carrier shall provide proof of their ratings. All ratings shall be a Best's Guide Rating of A, Class VII or better or that is otherwise acceptable to the City. 9. 7 VERIFICATION OF COVERAGE The CITY shall provide all required forms. MetroFi shall furnish CITY with certificates of insurance and with all endorsements affecting coverage required by this AGREEMENT. The certificates and endorsements for each policy are to be signed by a person authorized by that insurer to bind coverage on its behalf. 9.8. SUBCONTRACTORS MetroFi shall either include all subcontractors as insureds under its policies or shall require all subcontractors to meet CITY's requirements listed above. SECTION 10. TERMINATION 10.1 BREACH Upon a breach or default of any of the terms or obligations of this AGREEMENT by MetroFi, the CITY shall serve written notice upon MetroFi reasonably describing the breach or default. If MetroFi fails to cure the breach or default within thirty (30) days, this AGREEMENT shall be subject to termination at the option of the CITY. The CITY shall be entitled to exercise all rights and remedies hereby reserved under this AGREEMENT or made available under applicable laws. 10.2 TERMINATION Either party may terminate this AGREEMENT at any time during the term of this AGREEMENT or any renewal thereof upon 180 days written notice to and acceptance by the other party with no further liability except as expressly provided herein. Termination ofthis AGREEMENT by the CITY shall constitute the withdrawal of any consent or authorization of CITY for MetroFi to perform any construction or other work under this AGREEMENT excepting only that work necessary to remove all equipment and leave work sites in a clean and safe condition. 11 Upon early termination by MetroFi, the CITY shall make a pro-rata refund to MetroFi of the annual fee paid to the CITY by MetroFi prorated from the date of CITY's acceptance of the removal of the FACILITIES. 10.3 STOP WORK In the event of termination by either party, MetroFi shall immediately cease all work being performed under this AGREEMENT, excepting only that work necessary for MetroFi to remove all equipment and leave all work sites in a clean and safe condition and in accordance with Section 2.6. SECTION 11. BOOKS AND RECORDS 11.1 AVAILABILITY OF DOCUMENTS Any records or documents required to be maintained by MetroFi pursuant to this AGREEMENT shall be made available for inspection, copying or audit, at any time during regular business hours, upon fifteen (15) days written request from the Director of Public Works. 11.2 BOOKS MetroFi shall maintain any and all ledgers, books of account, invoices, vouchers, canceled checks, and other documents and records evidencing or relating to MetroFi's charges for SERVICES for a period of three (3) years, or for any longer period required by law, from the date the SERVICE was provided by MetroFi. 11.3 RECORDS MetroFi shall maintain all documents and records that demonstrate performance under this AGREEMENT for a period of three (3) years, or for any longer period required by law, from the date of termination or completion of this AGREEMENT. SECTION 12. MISCELLANEOUS PROVISIONS 12.1 GOVERNING LAW AND VENUE The CITY and MetroFi agree that the law governing this AGREEMENT shall be that of the State of California. In the event of suit brought by either party venue shall be vested in the state courts of the County of Santa Clara, or where otherwise appropriate, in the United States District Court, Northern District of California, San Jose, California. 12.2 ATTORNEY FEES In the event it becomes necessary for the CITY or MetroFi to institute legal proceedings to enforce this AGREEMENT or any provision thereof, then and in such proceedings the nonprevailing party shall pay the prevailing party's reasonable attorney's fees to the extent permitted by law. 12.3 WAIVER MetroFi agrees that any waiver by the CITY of any term or condition of this AGREEMENT shall not constitute a waiver of any other term or condition contained herein or a subsequent waiver of the same term or condition. 12 12.4 ALL-HOURS CONTACT MetroFi shall be available to the staff employees of any CITY department having jurisdiction over MetroFi'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. 12.5 NOTICES Except as otherwise expressly set forth in this AGREEMENT, all notices and other communications required or permitted to be given under this AGREEMENT shall be in writing and shall be personally served or mailed, postage prepaid and return receipt requested, and addressed to the respective parties set forth below or, from and after the date that MetroFi or CITY receives a written notice from the other, to such other party that MetroFi or CITY may, from time to time, designate in writing: CITY: City of Cupertino 10300 Torre Avenue Cupertino, CA 95014 Attention: Director of Public Works MetroFi: MetroFi, Inc. Attn: Lee Hambro 2465 Latham Street, Suite 300 Mountain View, CA 94040 Phone: 650-810-8000 Fax.: 650-810-8001 Notice shall be deemed effective and received on the date personally delivered or, if mailed, three (3) days after deposit in the United States mail. 12.6 PRIOR AGREEMENTS AND AMENDMENTS This AGREEMENT, including all Exhibits attached hereto, represents the entire understanding of the parties as to those matters contained herein and supercedes all prior agreements including the terms of the encroachment permit. No prior oral or written understanding shall be of any force or effect with respect to those matters covered herein. Except as otherwise specifically and expressly authorized in this AGREEMENT, this AGREEMENT may be modified only by a written amendment duly executed by the parties to this AGREEMENT. 13 WITNESS THE EXECUTION HEREOF on the day and year first hereinabove written. APPROVED AS TO FORM: CITY OF CUPERTINO: By&1Jj~ David W. Knapp City Manager c1~ )fivM(/' City Attorney / Date: "r:;. 2 '-f . c> t.{ MetroFi, INC. BY:--h...~~ ~SIO Title: ~ {\\~f' \\cl\c~ef ot 0 ~+~0.S Date: '5\.)..~ 1..v.>L\ "Execution Date" 14 Exhibit A - WIRELESS SERVICES DESCRIPTION MetroFi Services use wireless technology to provide high-speed data service connections to the Internet (or to a major ISP's network access points) for residential customers. Such a connection provides upstream and downstream maximum throughput rates that range up to 1 Mbps (depending on the service option customer orders). MetroFi may also provide additional services, such as public hot zone services, or mobile and private-network end-user services.