|
5.4 Whenever the removal or relocation of Radios is required under this Franchise,
<br /> and such removal or relocation shall cause the Public Right-of-Way to be damaged, Metricom,
<br /> at its sole cost and expense, promptly shall repair and return the Public Right-of-Way, in
<br /> which the Radios are located, to a safe and satisfactory condition in accordance with applicable
<br /> Laws, normal wear and tear excepted. If Metricom does not repair the site as just described,
<br /> then the City shall have the option to perform or cause to be performed such reasonable and
<br /> necessary work on behalf of Metricom and charge Metricom for the proposed costs to be
<br /> incurred, or the actual costs incurred by the City, at City's standard rates. Upon the receipt of
<br /> a demand for payment by the City, Metricom shall reimburse the City for such costs.
<br /> 6. CONSTRUCTION PERMIT.
<br /> 6.1 In the event that the attachment, installation, operation, or maintenance of
<br /> Radios shall require any construction work in the Public Right-of-Way, Metricom shall apply
<br /> for the appropriate street opening and other permits required by Law.
<br /> 6.2 Upon the completion of construction work, Metricom promptly shall furnish to
<br /> the City, in hard copy and Metricom's electronic format, suitable documentation showing the
<br /> exact location of the Radios in the Public Right-of-Way.
<br /> 7. INDEMNIFICATION AND WAIVER.
<br /> 7.1 Metricom agrees to indemnify, protect, defend (with counsel acceptable to the
<br /> City) and hold harmless the City, its council members, officers, employees, and agents, from
<br /> and against any and all claims, demands, losses, damages, liabilities, fines, charges, penalties,
<br /> administrative and judicial proceedings and orders, judgments, remedial actions of any kind,
<br /> and all costs and cleanup actions of any kind, all costs and expenses incurred in connection
<br /> therewith, including, without limitation, reasonable attorney's fees and costs of defense
<br /> (collectively, the "Losses") arising, or alleged to have arisen, directly or indirectly, in whole
<br /> or in part, out of the activities or facilities described in this Franchise, except to the extent
<br /> arising from or caused by the sole or gross negligence or willful misconduct of the City, its
<br /> council members, officers, employees, agents or contractors.
<br /> 7.2 The waiver by the City of any breach or violation of any Provision of this
<br /> Franchise by Metricom shall not be deemed to be a waiver or a continuing waiver by the City
<br /> of any subsequent breach or violation of the same or any other Provision of this Franchise by
<br /> Metricom.
<br /> 7.3 Metricom waives any and all claims, demands, causes of action, and rights it
<br /> may assert against the City on account of any loss, damage, or injury to any Radio or any loss
<br /> or degradation of the Services as a result of a sudden or gradual loss or change of electrical
<br /> power caused by, among others, an Act of God, an event or occurrence which is beyond the
<br /> reasonable control of the City, a power outage, a lightning strike, or occasioned by the
<br /> 9
<br />
|