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NextG Networks of California Inc - FY2012-001 CITY OF RANCHO PALOS VERDES RIGHT-OF-WAY USE AGREEMENT THIS RIGHT-OF-WAY USE AGREEMENT ("Agreement") is entered into on September 6 , 2011 ("Effective Date"), by the CITY OF RANCHO PALOS VERDES, a California municipal corporation ("City"), and NEXTG NETWORKS OF CALIFORNIA, INC., a Delaware corporation ("NextG"). RECITALS A. NextG owns, maintains, operates and controls, in accordance with regulations promulgated by the Federal Communications Commission and the California Public Utilities Commission, a fiber-based telecommunications Network (as defined in Section 1.9 below) serving NextG's wireless carrier customers and using microcellular optical repeater Equipment (as defined in Section 1.4 below) certified by the Federal Communications Commission. B. NextG represents that it holds a valid and unrevoked certificate of public convenience and necessity that was issued by the California Public Utilities Commission in its Decision No. 03-01-061 that became effective on January 30, 2003. NextG further represents that since its initial issuance of a CPCN, NextG applied for and was issued a full Facilities-based CPCN by the CPUC in its decision No. 07-04-045 that became effective on April 12, 2007. This certificate recites NextG's authority to partake in construction activities consistent with the decision and CPCN U-6745-C. C. For the purpose of operating the Network and improving wireless coverage and capacity in the City, NextG wishes to locate, place, attach, install, operate, control, and maintain Equipment in the Public Way (as defined in Section 1.11 below) on facilities owned by the City and by third parties at locations that have been or will have been approved by the City pursuant to its customary permitting procedures, which shall include the encroachment permit when excavation will be required, the building permit and the view assessment for facilities that are located within the Public Ways. D. The Public Ways within the City are used by and useful to private enterprises engaged in providing telecommunications services to residents, institutions, and businesses located in the City. E. The right to occupy portions of the Public Ways upon City-owned infrastructure for limited times, for the business of providing telecommunications services, is a valuable economic privilege, the economic benefit of which should be shared with all taxpayers of the City. 1 411) F. Beneficial competition between providers of communications services can be furthered by the City's provision of grants of location and rights to use the Public Ways on nondiscriminatory and competitively neutral terms and conditions. G. NextG is willing to compensate the City in exchange for a grant of location and the right to use and physically occupy portions of the Public Way. H. On July 5, 2011, NextG and the City entered into a temporary Memorandum of Understanding, which is to be effective for a maximum period of one year, to allow an installation on a City-owned streetlight pole that is located on Palos Verdes Drive South. At the end of the one-year term of that agreement, the installation at that location shall become subject to this Agreement. AGREEMENT 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 apply generally to the provisions of this Agreement: 1.1 "Adjusted Gross Revenues" means the gross dollar amount received by NextG for its Services (as defined in Section 1.13 below) provided to wireless carrier customers, which Services are attributable to Equipment located within the City, excluding (i) the Right-of-Way Use Fee, if any, payable pursuant to Section 4.2 et seq. below and any utility users tax, communications tax, or similar tax or fee paid to City; (ii) local, state, or federal taxes that have been billed to the customers and separately stated on customers' bills; and (iii) revenue uncollectible from customers (i.e., bad debts)for Services provided in the City, which revenue was previously included in Gross Revenues. 1.2 "City" means the City of Rancho Palos Verdes, California. 1.3 "Customary Permitting Procedures" shall mean the procedures that are followed by the City when permitting facilities within the City's Public Way, which shall include an encroachment permit when excavation will be required, a building permit and a view assessment. 1.4 "Decorative Streetlight Pole" means any streetlight pole that incorporates artistic design elements not typically found in standard steel or aluminum streetlight poles, and that does not have a mast arm for electrolier support. 1.5 "Director" means City's Director of Public Works or the Director's designee. 2 . i a 1.6 "Equipment" means the optical repeaters, DWDM and CWDM multiplexers, antennas, fiber optic cables, wires, and related equipment, whether referred to singly or collectively, to be installed and operated by NextG. Examples of typical Equipment types and installation configurations that have been pre-approved by the City are shown in the drawings and photographs attached as Exhibit A and incorporated by this reference. Any Equipment type and installation configuration not contained in Exhibit A must receive prior written approval from the Director, pursuant to the City's Customary Permitting Procedures before it may be installed on any Municipal Facility or placed on or in the Public Way. 1.7 "Fee" means any assessment, license, charge, fee, imposition, tax, or levy of general application upon 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). 1.8 "Installation Date" means the date that any Equipment is first installed by NextG pursuant to this Agreement and is inspected and approved by City in accordance with its Customary Permitting Procedures 1.9 "Laws" means 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 Agreement that are in force on the Effective Date and as they may be enacted, issued, or amended during the Term of this Agreement.. 1.10 "Municipal Facilities" means City-owned streetlight poles, decorative streetlight poles, lighting fixtures, electroliers, fiber-optic strands and conduit, or other City-owned structures located within the Public Way. These facilities may be referred to in the singular or plural, as appropriate to the context in which used. 1.11 "Network" or collectively "Networks" means one or more of the neutral- host, protocol-agnostic, fiber-based optical repeater networks operated by NextG to serve its wireless carrier customers in the City. 1.12 "NextG" means NextG Networks of California, Inc., a corporation duly organized and existing under the laws of the State of Delaware, and its lawful successors, assigns, and transferees. 1.13 "Public Way" or"Public Rights-of-Way" means the space in, upon, above, along, across, and over the public streets, roads, 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, that are under the jurisdiction of the City. This term does 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 3 . , . 9 111 such person or entity. This term also does not include any other facility owned by the City, such as a park or municipal building. 1.14 "PUC" means the California Public Utilities Commission. 1.15 "Services" means the radio frequency ("RF") transport telecommunications services provided through the Network by NextG to its wireless carrier customers pursuant to one or more tariffs filed with and regulated by the PUC. 1.16 "Streetlight Pole" means any standard-design concrete, fiberglass, metal, or wooden pole that has a mast arm for electrolier support and is used for street lighting purposes. 2. TERM. This Agreement is effective on the Effective Date as specified in Section 12.11 and will be for a term of ten (10) years commencing on the Installation Date, unless earlier terminated by either party in accordance with the provisions of Section 10. Within six months prior to the expiration of the initial 10-year term, and upon NextG's written request, the parties will meet and confer with regard to a five-year renewal or extension of this Agreement, and the terms and conditions applicable to any such renewal or extension. 3. SCOPE OF USE AGREEMENT. All rights expressly granted to NextG under this Agreement, which will be exercised at NextG's sole cost and expense, are subject to the prior and continuing right of the City under applicable laws to use all parts of the Public Way exclusively or concurrently with any other person or entity and are further subject to all deeds, easements, dedications, conditions, covenants, restrictions, encumbrances, and claims of title of record that may affect the Public Way. Nothing in this Agreement may be deemed to grant, convey, create, or vest in NextG a real property interest in land, including any fee, leasehold interest, or easement. All work performed pursuant to the rights granted by this Agreement is subject to the prior review and approval of the City in accordance with its Customary Permitting Procedures. 3.1 Attachment to Municipal Facilities. Subject to the terms of this Agreement and the issuance of all required permits and approvals, the City authorizes NextG to enter upon the Public Way and to locate, place, attach, install, operate, maintain, control, remove, reattach, reinstall, relocate, and replace Equipment described generally in Exhibit A in or on Municipal Facilities and locations described in Exhibit B for the purposes of operating the Network and providing Services, at NextG's expense. NextG shall have the right to draw compatible electricity for the operation of Equipment from the non-metered power source associated with the Municipal Facilities where the City has not approved a meter so long as: (i) it obtains separate approval from Southern California Edison to install an unmetered Wireless Tariff Rate (WTR)fuse and disconnect switch and install such equipment; (ii) the Equipment is installed in compliance with all applicable codes and standards; and (uI) NextG neither damages nor interferes in the operation of the Municipal Facilities. City makes no guarantees or 4 • representations as to the suitability or compatibility of any source or supply of electrical current necessary to operate the Equipment. In addition, City may authorize NextG to use City-owned conduit for the purposes of operating the Network and providing Services, if such conduit becomes available and such use is authorized by NextG's certificate of public convenience and necessity. 3.2 Amendment to Agreement. This Agreement may be amended from time to time to allow NextG to add additional facilities to additional City owned street lights and signal poles subject to the all the same terms and conditions of this Agreement. Such installations shall be subject to the review and approval of the Director without further review by the City Council, if the Director approves the installation and the proposed additional facilities comply with this Agreement and the Laws that are in effect at the time the installation of the Equipment is approved by the Director. In all other cases, an amendment to this Agreement must be approved by the City Council. 3.3 Attachment to Third-Party Property. Subject to obtaining written permission from the owner of the affected property and obtaining approval from the Director of each installation pursuant to the City's Customary Permitting Process, City authorizes NextG to enter upon the Public Way and to attach, install, operate, maintain, remove, reattach, reinstall, relocate, and replace such items of Equipment in or on poles or other structures owned by public utility companies or others located within the Public Way as may be permitted by the public utility company or other facility owner. NextG must furnish to the City documentation of that permission from the individual utility or facility owner. The denial of an application for the attachment of Equipment to third- party-owned poles or structures in the Public Way will not be based upon the size, quantity, shape, color, weight, configuration, or other physical properties of NextG's Equipment if the Equipment identified in that application substantially conforms to one of the pre-approved configurations and the Equipment specifications set forth in Exhibit A, unless it causes a significant view impairment from a residential property in the City as determined by the City's view assessment process. 3.4 Preference for Municipal Facilities. In any circumstances where NextG has a choice of attaching its Equipment to either Municipal Facilities or to third-party- owned property in the Public Way, NextG agrees to attach to the Municipal Facilities, provided that (i) those Municipal Facilities are at least equally suitable functionally for the operation of the Network, and (ii) the rental fee and installation costs associated with that attachment over the length of the term are equal to or less than the fee or cost to NextG of attaching to the alternative third-party-owned property. 3.5 No Interference. This Agreement shall not convey any property interest to NextG nor shall NextG claim under this Agreement any property interest in the City's facilities or Public Ways. NextG further acknowledges and agrees that this Agreement does not create a landlord-tenant relationship and NextG is not entitled to avail itself of any rights afforded to tenants under the laws of the State of California. NextG's use of 5 • the public right-of-way under the Agreement shall not give rise to any vested right. Nothing in this Agreement shall be construed as granting NextG a franchise. Any and all rights granted to NextG by and through this Agreement are subject and subordinate to the continuing right of the City and its agents to use all of the public-right-of way in the performance of their duties, functions, and operations, which include but are not limited to laying, installing, maintaining, protecting, replacing, and removing, traffic signals, street lights, sanitary sewers, water mans, storm drains, gas mains, poles, overhead and underground electric lines, telephone lines, cable television lines, and other utility and municipal uses, together with appurtenance thereof and with right of ingress and egress, along, over, across, and in the public right-of-way. NextG shall have the duty to remove, relocate, and rearrange its Equipment in accordance with the reasonable and necessary requirements of the City and the terms of this Agreement. Furthermore, in the performance and exercise of its rights and obligations under this Agreement, NextG must not interfere in any manner with the existence and operation of any public or private rights-of-way, sanitary sewers, water mains, storm drains, gas mains, poles, aerial and underground electrical and telephone wires, electroliers, cable television and telecommunications facilities, utilities, or municipal property, without the express written approval of the owner or owners of the affected property or properties, except as authorized by applicable laws or this Agreement. 3.6 Compliance with Laws. NextG will comply with all applicable laws in the exercise of its rights and the performance of its obligations under this Agreement. In particular, NextG will comply with the Laws that are in effect at the time a particular installation of Equipment is approved by the Director. 3.7 No Authorization to Provide Other Services. NextG represents that its Equipment installed pursuant to this Agreement will be used solely for the purpose of providing the Services identified herein and that NextG will not use its Equipment to offer or provide any other services except for those services referenced in Subsection 4.5. NextG's failure to comply with these limitations will constitute a material breach of this Agreement and City, after providing written notice to NextG, may levy monetary penalties in an amount not to exceed $1,000 per day from the date of noncompliance until the breach is cured. 4. COMPENSATION; UTILITY CHARGES. NextG is solely responsible for the payment of all lawful fees in connection with NextG's performance under this Agreement, including those set forth below. 4.1 Annual Fee. In order to compensate City for NextG's entry upon and deployment within the Public Way, and as compensation for the use of Municipal Facilities, NextG will pay to the City an annual fee (collectively the "Aggregate Annual Fee") that consists of the following: (i) A fee (the "Pole Fee") in the amount of Five Hundred Dollars ($500) for the use of each City-owned streetlight or traffic-signal pole, if any, upon which NextG's Equipment has been installed pursuant to this Agreement; and 6 r 1 • (ii) A fee (the "Conduit Fee"), in an amount equivalent to that charged by cities of similar size, per foot per annum for City-owned conduit, if any, that the City permits NextG to use hereunder. The Aggregate Annual Fee to be paid with respect to each year of the term will be an amount equal to (i) the number of Equipment installations made on Municipal Facilities, or that continue to remain on Municipal Facilities, during the preceding 12 months multiplied by the annual Pole Fee, prorated as appropriate; and (ii) the annual Conduit Fee multiplied by the number of City-owned conduit feet used by NextG during the preceding 12 months, prorated as appropriate. The Aggregate Annual Fee is due and payable not later than 45 days after each anniversary of the Installation Date. City represents that City owns all Municipal Facilities for the use of which it is collecting from NextG the Aggregate Annual Fee pursuant to this Section 4.1. 4.2 CPI Adjustment. Commencing on the fifth anniversary of the Installation Date and continuing on each fifth anniversary thereafter during the term, the fees for each component of the Aggregate Annual Fee for the ensuing five-year period will 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)that occurred during the previous five-year period for the Los Angeles-Riverside-Orange County Metropolitan Statistical Area. 4.3 Right-of-Way Use Fee. To further compensate City for NextG's entry upon and deployment of Equipment within the Public Way, NextG will pay to City, on an annual basis, an amount equal to five percent (5%) of Adjusted Gross Revenues (the "Right-of-Way Fee"). NextG must make payment of the Right-of-Way Fee that is due and owing within 45 days after the first anniversary of the Effective Date and within the same period after each subsequent anniversary of the Effective Date. Within 45 days after the termination of this Agreement, the Right-of-Way Fee will be paid for the period elapsing since the end of the last anniversary date for which the Right-of-Way Fee has been paid. NextG will furnish to City with each payment of the Right-of-Way Fee a statement, executed by an authorized officer of NextG, showing the amount of Adjusted Gross Revenues for the period covered by the payment. If NextG discovers any error in the amount of compensation due, the City will be paid within 30 days of discovery of the error or determination of the correct amount. Any overpayment to the City through error or otherwise will be offset against the next payment due. Acceptance by City of any payment of the Right-of-Way Fee will not be deemed a waiver by City of any breach of this Agreement occurring prior thereto, nor will the acceptance by City of any such payment preclude City from later establishing that a greater amount was actually due or from collecting any balance that is due. 4.4 Accounting Matters. NextG will maintain accurate books of account at its principal office in Milpitas, or another location of its choosing, for the purpose of determining the amounts due to City under Sections 4.1 and 4.2 above. City, or a consultant acting on behalf of City, may inspect NextG's books of account relative to City at any time during regular business hours on 10 business days' prior written notice 7 and may audit the books from time to time, but in each case only to the extent necessary to confirm the accuracy of payments due under Sections 4.1 and 4.2 above. The City agrees to hold in confidence any non-public information it obtains from NextG to the maximum extent permitted by law. 4.5 Services to City. NextG will at all times during the term of this Agreement reserve one wavelength of capacity in the fiber owned or operated by NextG in the City for the City's exclusive use in operating a noncommercial, City-owned Wi-Fi network, or for any other City-operated noncommercial data network or communications system. 4.6 Electricity Charges. NextG is solely responsible for the payment to the utility service provider of all electrical utility charges that are attributable to the Equipment's usage of electricity. 4.7 Delinquent Payment. If NextG fails to pay any amounts due under this Section 4 within 30 days from the specified due date, NextG must pay, in addition to the unpaid fees, a sum of money equal to one percent (1°/o) of the amount due for each month or fraction thereof during which the payment is due and unpaid. 4.8 Most-Favored-Municipality Status. The parties anticipate that, following the effective date of this Agreement, NextG will enter into similar right-of-way use agreements with other municipalities. If NextG enters into a similar agreement with another municipality in the Los Angeles Metropolitan Statistical Area, which municipality has a population that is the same or smaller than that of the City, then the parties will modify this Agreement if the following conditions are met: (i) The right-of-way use agreement confers financial benefits upon the municipality that, taken as a whole and balanced with other terms of that agreement, are deemed by the City to be substantially superior to the financial benefits provided for in this Agreement; and (ii) City notifies NextG of its desire to modify this Agreement to substitute the same or substantially similar financial benefits, and related terms and conditions, of that right-of-way use agreement in order to achieve parity. To the extent practicable, such modification will be retroactive to the effective date of the similar right- of-way use agreement with the comparable municipality. Concurrently with NextG's annual payment of the right-of-way use fee provided for in Subsection 4.3, NextG will provide to the City a list of right-of-way use agreements that have been executed with municipalities within the Los Angeles Metropolitan Statistical Area during the preceding 12-month period. 5. CONSTRUCTION. NextG must comply with all applicable federal, state, and City technical specifications and requirements and all applicable state and local codes and rules related to the construction, installation, operation, maintenance, and control of NextG's Equipment installed in the Public Way and on Municipal Facilities in the City. 8 • • NextG may not attach, install, maintain, or operate any Equipment in or on the Public Way or on Municipal Facilities without the City's prior written approval for each location. 5.1 Obtaining Required Permits. All work performed pursuant to the rights granted in this Agreement is subject to the prior review and approval of the City in accordance with its Customary Permitting Procedures. NextG shall obtain all required permits and approvals, including, without limitation, those listed below. NextG shall pay any and all reasonable permit and inspection fees prior to performing any work in the Public Ways. City will process NextG's applications for permits and will otherwise cooperate with NextG in facilitating the deployment of the Network in the Public Way in a reasonable and timely manner. (a) Encroachment Permits. Applicant shall obtain encroachment permits from the City for the installation of the DAS Facilities and for any other work within the public right-of-way as required by the Rancho Palos Verdes Municipal Code (the "Code"). (b) Facilities shall be installed in a manner that will not cause a significant impairment of a view from the viewing area of a residential property located within the City, as those terms are defined in Section 17.02.040 of the Code. To that end, NextG shall construct a mockup of the Facility at the proposed location so that its potential effect on views can be evaluated by the Director. If a proposed Facility causes a significant impairment of a view from a residential property that cannot be eliminated at the particular location, the Director may require the Facility to be moved to a different location. However, if NextG demonstrates to the Director's satisfaction that the relocation of the Facility will cause a significant gap in NextG's service coverage or preclude NextG from providing wireless service to its customers, then the Facility shall be approved at the location requested by NextG. (c) Building Permits. Applicant must obtain any necessary building permits by application to the Building & Safety Department pursuant to the City's Municipal Code and shall pay all reasonable processing, engineering and inspection fees in connection with such building permits in accordance with the rates in effect at the time of payment. All such work shall be completed in accordance with the requirements of the Code, this Agreement, the applicable encroachment permit and the City's standard specifications. (d) Compliance with Permits. All work within the public right-of- way shall be performed in strict compliance with the applicable Permits and all applicable regulatory requirements. Applicant shall promptly submit to the City accurate as-built plans and record drawings certified by a professional engineer showing in detail, the location, depth, and size of all of NextG facilities in the public right-of-way subject to this Agreement within sixty (60) days of completion of any additions or alterations to the DAS Facilities. Such plans shall be submitted in the form and with the detail required by the Director of Public Works. Nothing in this Agreement shall prevent or prohibit the City from establishing additional conditions on any approval of Applicant's permits, nor 9 • exempt Applicant from any generally applicable annual registration requirement the City might impose. (e) Coordination of Excavation with Other Permittees. At least thirty (30) days prior to commencing excavation work in the public right-of-way pursuant to this Agreement, NextG shall notify in writing, on a form approved by the City, other existing or potential right-of-way users ("Users") shown on the list of users maintained by the City. The notice shall describe the work to be performed, the specific right-of-way that will be used, and the time when such work will be performed. Each User receiving such notice shall have thirty (30) days from the date thereof to inform in writing Applicant and the City that such User desires to perform work jointly with NextG. To the extent reasonably feasible, and subject to NextG and User entering into a written agreement for such work and/or use, NextG shall coordinate its work with any User who timely informs NextG that it desires to perform work jointly in the right-of-way, provided that such User obtains any required right-of-way agreement and permits from the City as required by the Code before such User installs any facilities or uses any facilities installed by Applicant on their behalf. Any work performed by NextG on behalf of another User must be authorized by an encroachment permit issued by the City. (f) Membership In Underground Service Alert. Pursuant to Government Code Section 4216.1, NextG shall become a member of Underground Service Alert-Southern California. 5.2 Removal and Relocation. (a) Removal Due to Public Project. Upon receipt of a written demand from the City, NextG, at its sole expense, shall remove and relocate any Equipment and related facilities, installed, used and/or maintained by NextG under this Agreement whenever City reasonably determines that the removal or relocation is needed for any of the following purposes: (i) due to any work proposed to be done by or on behalf of the City or other governmental agency, including but not limited to, any change of grade, alignment or width of any street, sidewalk or other public facility, installation of curbs, gutters or landscaping and installation, construction, maintenance or operation of any underground or aboveground facilities such as sewers, drains, pipes, power lines, and tracks; (ii) because the Equipment is interfering with or adversely affecting proper operation of City- owned light poles, traffic signals, or other City facilities; or (iii) to protect or preserve the public health and safety. NextG shall complete the removal or relocation within 120 days of receipt of notice from the City. Notwithstanding the foregoing, the City's Director may require a shorter period due to exigent circumstances and may authorize a longer period if it will not delay the public project. If NextG fails to remove or relocate the facilities within the prescribed time period, the City may remove the facilities at the expense of NextG, and NextG shall promptly reimburse the City any and all reasonable expenses, including administrative, legal and consultant costs, within 30 days of receiving an invoice from the City. 10 • (b) Removal Due to Termination. Upon termination NextG must at its sole expense, remove the Equipment and all related appurtenances and structures and restore the public right-of-way to its original condition, reasonable wear and tear excepted, and further excepting landscaping and related irrigation equipment, or other aesthetic improvements made by NextG to the right-of-way. The removal of the Equipment shall also be performed in compliance with the terms of this Agreement. Any removal work by Applicant shall only be done pursuant to an encroachment permit. (c) Undergrounding. NextG and the City recognize that current technology may not reasonably permit undergrounding of all components of the Equipment. NextG acknowledges and agrees that the City prefers to underground facilities in the right-of-way when economically and technically feasible. At least 30 days prior to each anniversary of the Effective Date, City may demand NextG underground additional components of its Equipment. Within 180 days of the receipt of a written demand from the City, NextG shall replace the identified aboveground facilities with underground facilities if economically and technically feasible and shall do so in accordance with all applicable laws. The burden will be on NextG to prove that such undergrounding is not economically and technically feasible. (d) Abandonment. In the event the Equipment, or any part thereof, is abandoned for a period of 90 days or more, NextG must, at its sole expense, promptly vacate and remove the Equipment and all related appurtenances and structures or the abandoned part thereof. NextG must also, at its sole expense, restore the right-of-way to its original condition, reasonable wear and tear excepted, and further excepting landscaping and related irrigation equipment, or other aesthetic improvements made by NextG to the right-of-way. Alternatively, the City may allow NextG, in the City's sole and absolute discretion, to abandon the Equipment, or any part thereof, in place and convey it to the City. If NextG fails to remove the Equipment as required by the City pursuant to this paragraph and the Code within 120 days after receipt of written notice from the City, the City may, in its sole and absolute discretion: (i) remove the Equipment at NextG's sole expense, which expense NextG shall promptly reimburse to the City within 30 days of receiving an invoice for such expenses, including all reasonable administrative, legal and consultant costs; or (ii) deem the Equipment, or any part thereof, to have been abandoned and conveyed to the City. 5.3 Repair of Rights-of-Way. NextG shall be responsible for any damage, ordinary wear and tear excepted, to street pavement, existing facilities and utilities, curbs, gutters, sidewalks, and all other public or private facilities due to NextG's construction, installation, maintenance, access, repair, relocation, or removal of the Equipment. NextG must promptly repair such damage and return the public rights-of- way and adjacent property to a safe and satisfactory condition to the City in accordance with the City's street restoration standards. If NextG fails to do so, the City shall have the option upon thirty 30 days prior written notice to NextG to perform such work at 11 • • NextG's sole expense. If the City determines that the damage presents an immediate threat to the public health or safety, it may perform such work at NextG's sole expense without prior notice to NextG. In the event of such an emergency, as soon as practicable thereafter and not later than forty-eight (48) hours after having taken such action, City will advise NextG in writing of the emergency work performed or the action taken with respect to any emergency modification or alteration. When the City undertakes pursuant to this Section to repair any damage, NextG shall promptly reimburse to the City within 30 days after receiving an invoice for such reasonable expenses, including all administrative, legal and consultant costs. NextG's obligations under this paragraph shall survive for 3 years past the expiration or earlier termination of this Agreement. 6. INDEMNIFICATION AND WAIVER. NextG will indemnify, defend, protect, and hold harmless the City, its councilmembers, officers, employees, agents, and contractors, from and against liability, claims, demands, losses, damages, fines, charges, penalties, administrative and judicial proceedings and orders, judgments, and all costs and expenses incurred in connection therewith, including reasonable attorneys' fees and costs of defense (collectively, the "Losses") directly or proximately resulting from NextG's activities undertaken pursuant to this Agreement, except to the extent arising from or caused by the gross negligence or willful misconduct of the City, its councilmembers, officers, employees, agents, or contractors. City will indemnify, defend, protect, and hold harmless NextG, its officers, employees, agents, and contractors, from and against liability, claims, demands, losses, damages, fines, charges, penalties, administrative and judicial proceedings and orders, judgments, and all costs and expenses incurred in connection therewith, including reasonable attorneys' fees and costs of defense directly or proximately resulting from City's gross negligence or willful misconduct or of City's officers, employees, agents, or contractors. 6.1 Waiver of Claims. NextG waives all claims, demands, causes of action, and rights it may assert against City on account of any loss, damage, or injury to any Equipment, or any loss or degradation of the Services, resulting from any event or occurrence that is beyond the City's reasonable control. 6.2 Limitation of City's Liability. City will be liable only for the cost of repair to damaged Equipment arising from the sole negligence or willful misconduct of City, its employees, agents, or contractors, and City will in no event be liable for indirect or consequential damages. 6.3 Consequential Damages. Both City and NextG acknowledge that under no circumstance, including but not limited to condemnation or breach of this Agreement, shall either party be liable to the other for consequential damages, including but not limited to any loss of income, business, or profits, arising out of NextG's use of the Municipal Facility or City's performance or non-performance under this Agreement, even if City has been advised of the possibility of such damages. 12 0 6.4 Third Parties. City shall not be responsible for any damages, losses, or liability of any kind occurring by reason of anything done or permitted to be done by any third party, including without limitation any and all damages, losses, or liability arising from: (i) the issuance or approval by the City of a permit to any third party; or (ii) any interruption of services provided by NextG at the Municipal Facility due to any third party failure to abide by FCC regulations or regulations and agreements regarding interference, or any other applicable Laws or agreement with City. NextG acknowledges and agrees that the other telecommunication carriers and utilities shall not be deemed City's agent or employee for any purpose. 6.5 Limitation of City's Liability. The City shall be liable for the cost of repair to damaged Equipment only to the extent arising from the negligence or willful misconduct of City, its employees, agents, or contractors as determined either by the written agreement of the parties or the findings of a court of competent jurisdiction. In no event shall the City be liable to NextG for any indirect or consequential damages. 6.6 Survival. The provisions of this section shall survive the expiration or earlier termination of this Agreement. 7. INSURANCE. NextG must obtain and maintain during the term of this Agreement Commercial General Liability insurance and Commercial Automobile Liability insurance protecting NextG in an amount not less than One Million Dollars ($1,000,000) per occurrence (combined single limit), including bodily injury and property damage, and in an amount not less than Two Million Dollars ($2,000,000) annual aggregate for both personal injury liability and products-completed operations. The Commercial General Liability insurance policy must name the City, its councilmembers, officers, and employees as additional insureds as respects any covered liability arising out of NextG's performance of work under this Agreement. Coverage must be in an occurrence form and in accordance with the limits and provisions specified herein. Claims-made policies are not acceptable. This insurance must not be canceled, nor may the occurrence or aggregate limits set forth above be reduced, until the City has received at least 30 days' advance written notice of such cancellation or change. NextG is responsible for notifying the City of any change or cancellation. 7.1 Filing of Certificates and Endorsements. Prior to the commencement of any work pursuant to this Agreement, NextG must file with City the required original certificates of insurance with endorsements, which must state the following: (a) The policy number; name of insurance company; name and address of the agent or authorized representative; name and address of insured; project name; policy expiration date; and specific coverage amounts; (b) That the City will receive not less than 30 days' prior notice of cancellation; 13 • (c) That NextG's Commercial General Liability insurance policy is primary as respects any other valid or collectible insurance that City may possess, including any self insured retentions that City may have; and that any other insurance the City possesses will be considered excess insurance only and will not be required to contribute with this insurance; and (d) That NextG's Commercial General Liability insurance policy waives any right of recovery the insurance company may have against the City. The certificates of insurance with endorsements and notices must be mailed to the City at the address specified below in Section 9. 7.2 Workers' Compensation Insurance. NextG must obtain and maintain at all times during the term of this Agreement statutory workers' compensation and employer's liability insurance in an amount not less than One Million Dollars ($1,000,000) and must furnish to City a certificate showing proof of that coverage. 7.3 Insurer Criteria. All insurance policies obtained by NextG must be issued by companies that are admitted and licensed to do business in the State of California and that have a minimum rating assigned by A.M. Best & Company's Key Rating Guide of"A" Overall and a Financial Size Category of"X" (i.e., a size of $500,000,000 to $750,000,000 based on capital, surplus, and conditional reserves). Insurance policies and certificates issued by non-admitted insurance companies are not acceptable. 7.4 Severability of Interest. All deductibles or self-insured retentions must be stated on the certificates of insurance, which must be sent to and approved by City. "Severability of interest" or "separation of insureds" clauses must be made a part of the Commercial General Liability and Commercial Automobile Liability policies. 7.5 Verification of Coverage. NextG shall furnish the City with certificates of insurance and with original endorsements effecting coverage required by this Section. The certificates and endorsements for each insurance policy are to be signed by a person authorized by that insurer to bind coverage on its behalf. All certificates and endorsements are to be received and approved by the City before work commences. The City reserves the right to require complete certified copies of all required insurance policies, at any time. 7.6 Indemnification Not Limited. Any insurance required to be obtained and maintained by NextG under this Agreement shall not limit in any way NextG's indemnification obligations under Section 5 of this Agreement. 7.7 Secondary Parties. In the event NextG hires any subcontractors, independent contractors or agents ("Secondary Parties")to locate, place, attach, install, operate, use, control, repair or maintain the Equipment, NextG shall require such Secondary Parties to obtain and maintain the insurance required by this Section 7 and 14 4110 • comply with all of the insurance provisions of such Section. It shall be NextG responsibility to ensure compliance with this Section 7.7. 8. FAITHFUL PERFORMANCE BOND. In order to secure the performance of its obligations under this Agreement, NextG will provide the following security instrument to the City: 8.1 Faithful Performance Bond. Prior to the commencement of any work under this Agreement, NextG must provide a faithful performance bond running to the City, substantially in the form attached as Exhibit B, in the penal sum of not less than Two Thousand Five Hundred Dollars ($2,500) for each Municipal Facility upon which Equipment is to be installed pursuant to Section 5 of this Agreement, conditioned upon the faithful performance by NextG of all the terms and conditions of this Agreement and upon the further condition that if NextG fails to comply with any law, ordinance, rule, or regulation governing this Agreement, there shall be recoverable jointly and severally from the principal and surety of the bond any damage or loss suffered by the City as a result, including the full amount of any compensation, indemnification, or costs of removal or abandonment of NextG's property, plus costs and reasonable attorneys' fees up to the full amount of the faithful performance bond. The City may require NextG to increase the amount of the faithful performance bond if the City concludes that it is necessary to do so based upon the harm being caused by NextG to Public Ways or Municipal Facilities. NextG will keep the faithful performance bond in place during the term of this Agreement. 8.2 Assessment of the Bond. Upon NextG's failure to pay the City any amount owing under this Agreement, the faithful performance bond may be assessed by the City for purposes including, but not limited to: (a) Reimbursement of costs borne by the City to correct violations of the Agreement not corrected by NextG, after City provides notice and a reasonable opportunity to cure such violations. (b) To provide monetary remedies or to satisfy damages assessed against NextG due to a material breach of this Agreement. 8.3 Restoration of the Bond. NextG must deposit a sum of money or a replacement instrument sufficient to restore the faithful performance bond to its original amount within 30 days after notice from the City that any amount has been recovered from the faithful performance bond. Failure to restore the bond to its full amount within 30 days will constitute a material breach of this Agreement. NextG will be relieved of the foregoing requirement to replenish the bond during the pendency of an appeal from the City's decision to draw on the faithful performance bond. 8.4 Costs of Collection. If the faithful performance bond is drawn upon, all of City's costs of collection and enforcement of the provisions relating to the bond that are 15 . , . 0 I specified in this section, including reasonable attorneys' fees and costs, will be paid by N extG. 8.5 Required Endorsement. The faithful performance bond is subject to the approval of the City Attorney and must contain the following endorsement: "This bond may not be canceled until sixty(60) days after receipt by the City Attorney, by registered mail, return receipt requested, of a written notice of intent to cancel or not to renew." 8.6 Reservation of City Rights. The rights reserved by the City with respect to the faithful performance bond are in addition to all other rights and remedies the City may have under this Agreement or any other law. 9. HARZARDOUS SUBSTANCES 9.1 Hazardous Waste. For purposes of this Agreement, the term "Hazardous Substance" means any substance that is listed as a "Hazardous Substance" pursuant to 42 U.S.C. Section 9601(14), and also any toxic, ignitable, reactive, or corrosive hazardous waste defined pursuant to 42 U.S.C. Section 6921 and implementing regulations. "Hazardous Substance" includes without limitation any and all materials or substances that are defined by federal, state, or local statutes, regulations, or ordinances as "hazardous waste," "extremely hazardous waste," or a "hazardous substance." "Hazardous Substance" includes but is not limited to asbestos, polychlorobiphenyls ("PCBs"), and oil, petroleum and their fractions or by-products, notwithstanding any "petroleum exclusion" set forth in 42 U.S.C. Section 9601(14). 9.2 Prohibition. Neither NextG nor or NextG's employees, officers, officials, agents, transferees, contractors or subcontractors shall cause, permit any Hazardous Substances to be used, stored, or generated, on or in the Municipal Facility, the public right-of-way, or any City property by NextG, NextG's agents employees, contractors, or invitees without first obtaining City's written consent. In no event shall NextG ever use the Premises to dispose of any Hazardous Substance or any Solid Waste (as defined by 42 U.S.C. Section 6903(27). 9.3 Indemnification. If NextG or NextG's employees, officers, officials, agents, transferees, contractors, or subcontractors cause, permit, or allow Hazardous Substances to be used, stored, or generated, on or in the Municipal Facility, the public right-of-way, or any City property except as permitted above, then NextG shall defend, indemnify and hold harmless City (and its councilmembers, officers, staff, employees, and agents)from any and all claims, damages, fines, judgments, penalties, costs, liabilities, or losses (including, without limitation, a decrease in value of the Municipal Facility, the public right-of-way, or any City property, damages caused by loss or restriction of rentable or usable space, or any damages caused by adverse impact on marketing of the space, or any governmental or third-party claim for reimbursement or compensations pursuant to liability under CERCLA, RCRA, or related statutes, and any 16 and all sums paid for settlement of claims, attorneys' fees, consultant, and expert fees) arising during or after the term of this Lease and arising as a result of that contamination. This duty to defend and indemnification includes, without limitation, any and all costs incurred because of any investigation of the site or any cleanup, removal, or restoration mandated by a federal, state, or local agency or political subdivision. Without limitation of the foregoing, if NextG causes or permits the presence of any Hazardous Substance on the Premises which results in contamination of the soil, soil vapors, or groundwater beneath the Premises, then NextG shall promptly, at NextG's sole expense, take any and all necessary actions to return the Premises to the condition existing prior to the presence of any such Hazardous Substance on the Premises. NextG shall first obtain City's approval for any such remedial action. The provisions of this paragraph shall be in addition to any other obligations and liabilities NextG may have to City at law or equity and shall survive the expiration or the termination of this Agreement. In the event that the City notifies NextG of potential liability under this Section, NextG shall respond in writing to such a notification within 10 working days. If NextG does not so respond and unequivocally accept the duty to defend and indemnify the City without reservation, then City shall have the right to retain independent legal counsel within its sole discretion and NextG shall be responsible for all reasonable fees and costs, including attorneys' fees, of any such counsel selected by the City. 10. NOTICES. All notices to be given pursuant to this Agreement must 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 described above, addressed as follows: If to City: CITY OF RANCHO PALOS VERDES Attn: Carolyn Lehr, City Manager 30940 Hawthorne Blvd. Rancho Palos Verdes, CA 90275 If to N extG: NEXTG NETWORKS OF CALIFORNIA, INC. Attn: Contracts Administration 890 Tasman Drive Milpitas, CA 95035 Ph: 408-954-1580 Fax: 408-434-6285 10.1 Date of Notices; Changing Notice Recipient or Address. Notices will be deemed given upon receipt in the case of personal delivery, three days after deposit in the mail, or the next business day in the case of facsimile, email, or overnight 17 1 . 1 delivery. Either party may from time to time designate any other recipient or address for this purpose by written notice to the other party delivered in the manner set forth above. 11. TERMINATION. This Agreement may be terminated by either party upon 45 days' prior written notice to the other party upon a default by the other party of any material covenant or term, which default is not cured within 45 days of receipt of written notice of default (or, if such default is not curable within 45 days, if the defaulting party fails to commence that cure within 45 days or fails thereafter diligently to prosecute such cure to completion); provided, that the grace period for any monetary default will be 10 days from receipt of notice. Except as expressly provided herein, the rights granted under this Agreement are irrevocable during its term. 12. ASSIGNMENT. 12.1 Transactions Requiring City Consent. Consummation of the following transactions related to this Agreement, or involving NextG, requires the prior written consent of the City Council expressed by resolution, which consent will not be unreasonably withheld, conditioned, or delayed: (i) The sale, transfer, lease, assignment, or other disposition of this Agreement, in whole or in part, whether voluntary or involuntary; provided, however, that such consent is not required for a transaction that is exempt under the provisions of paragraph 12.2 below. A transfer, assignment, or other disposition of this Agreement may be made only by an instrument in writing, a duly executed copy of which must be filed in the office of the City Clerk after the consummation of that transfer, assignment, or other disposition. (ii) Any merger, consolidation, reorganization, business combination, or other transaction wherein or whereby 20 percent or more of the ownership interests in NextG, or in any parent company of NextG, will be affected and control of NextG will change or be subject to change. As used herein "control" means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of NextG. A duly executed copy of any written instrument evidencing the closing and consummation of any such transaction must be filed in the office of the City Clerk. 12.2 Exempt Transactions. The requirements of paragraph 11.1 do not apply to the transfer of ownership interests in NextG to another business entity in the tier of business entities owned or controlled by NextG that (i) controls NextG; or (ii) is controlled by NextG; or (iii) is under common control with NextG; provided, however, that NextG must: (a) provide to City not less than 30 days prior written notice of that proposed transaction; (b) provide information concerning ownership and voting interests in the proposed transferee; (c) provide a list of officers, directors, and any new managing employees of the proposed transferee, and their telecommunications-related experience and expertise; (d) represent that the proposed transaction will have no foreseeable effect on the management and operation of the Project in the public rights- of-way; and (e) agree to execution by NextG and the proposed transferee of an 18 .. .. 0 • assignment and assumption agreement, in form and substance acceptable to the City Attorney, whereby the proposed transferee assumes all of NextG's obligations under this Agreement and accepts its terms and conditions. 12.3 Notice. NextG must give to City at least 30 days' prior written notice (the "Exempted Transfer Notice") of any proposed Exempted Transfer and must set forth with specificity in that Exempted Transfer Notice the reasons why NextG believes the Exempted Transfer Criteria have been satisfied. The City will have a period of 30 days (the "Exempted Transfer Evaluation Period") from the date that NextG gives the City its Exempted Transfer Notice to object in writing to the adequacy of the information provided. Notwithstanding the foregoing, the Exempted Transfer Evaluation Period shall not be deemed to have commenced until the City has received from NextG all additional information the City may reasonably require in connection with its evaluation of the Exempted Transfer Criteria set forth in the Exempted Transfer Notice, so long as the City gives NextG notice in writing of the additional information the City requires within 15 days after the City's receipt of the original Exempted Transfer Notice. 13. MISCELLANEOUS PROVISIONS. The following provisions apply generally to the obligations of the parties under this Agreement. 13.1 Nonexclusive Use. NextG acknowledges that this Agreement does not provide NextG with exclusive use of the Public Way or any Municipal Facility and that City retains the right to permit other providers of communications services to install equipment or devices in the Public Way and on Municipal Facilities. City will make information available to other providers of communications services concerning the presence or planned deployment of NextG's Equipment in the Public Way or on Municipal Facilities. 13.2 Waiver of Breach. The waiver by either party of any breach or violation of any provision of this Agreement will 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 Agreement. 13.3 Severability of Provisions. If any provision of this Agreement is held by court of competent jurisdiction in a final judicial action to be void, voidable, or unenforceable, that provision will be deemed to be severable from the remaining provisions of this Agreement and will not affect the legality, validity, or constitutionality of the remaining portions of this Agreement. Each party represents that it would have entered into this Agreement, and each of its provisions, regardless of whether any one or more provisions may be declared illegal, invalid, or unconstitutional. 13.4 Contacting NextG. NextG will be available to the employees of any City department having jurisdiction over NextG's activities 24 hours a day, seven days a week, regarding problems or complaints resulting from the attachment, installation, operation, maintenance, or removal of the Equipment. City may contact by telephone 19 4110 • the network control center operator at telephone number 1-866-44-NEXTG (446-3984) regarding these problems or complaints. 13.5 Governing Law; Jurisdiction. This Agreement will be governed and construed by and in accordance with the laws of the State of California, without reference to its conflicts of law principles. If suit is brought by a party to this Agreement, the parties agree that trial of that action will be vested exclusively in the state courts of California, County of Los Angeles, or in the United States District Court for the Southern District of California. 13.6 Attorneys' Fees. If any dispute arising out of this Agreement results in litigation, the prevailing party will be entitled to recover its costs of suit, including (without limitation) reasonable attorneys' fees. 13.7 Consent Criteria. In any case where the approval or consent of a party is required, requested, or otherwise to be given under this Agreement, that party must not unreasonably delay, condition, or withhold its approval or consent. 13.8 Representations and Warranties. Each of the parties represents and warrants that it has the full right, power, legal capacity, and authority to enter into and perform its obligations hereunder and that those obligations will be binding upon that party without the approval or consent of any other person or entity, except as provided above in Section 3.3. 13.9 Amendment of Agreement. This Agreement may be amended only by a written instrument signed by both parties. 13.10 Entire Agreement. Other than the Memorandum of Understanding referred to in Paragraph H of the Recitals concerning the site on Palos Verdes Drive South, which shall terminate and become subject to the provisions of this Agreement one year following the effective date of that Memorandum of Understanding, his Agreement contains the entire understanding between the parties with respect to its subject matter. There are no representations, agreements, or understandings (whether oral or written) between or among the parties relating to the subject matter of this Agreement that are not fully expressed herein. 13.11 Captions and Paragraph Headings. Captions and paragraph headings used herein are for convenience only. They are not a part of this Agreement and shall not be used in construing this Agreement. 13.12 Order of Precedence. To the extent the provisions of this Agreement and any permit required to be obtained by NextG from City are in conflict, the provisions of any encroachment permits issued by the City related to the subject matter herein shall take precedence. 13.13 Drafting. The Parties agree that this Agreement is the project of joint draftsmanship and that should any of the terms be determined by a court, or in any type 20 41, of quasi-judicial or other proceeding, to be vague, ambiguous and/or unintelligible, that the same sentences, phrases, clauses or other wording or language of any kind shall not be construed against the drafting party in accordance with California Civil Code Section 1654, and that each party to this Agreement waives the effect of such statute. 13.14 Exhibits. All Exhibits referenced in this Agreement are hereby incorporated as though set forth in full. 13.15 Execution In Counterparts. This Agreement may be executed in one or more identical counterparts and all such counterparts together shall constitute a single instrument for the purpose of the effectiveness of this Agreement. 14. EFFECTIVE DATE. it is the intention of the parties that NextG will first execute this Agreement and then submit it to the City. The effective date will be the date on which this Agreement is executed on behalf of the City. The City Clerk will insert the effective date in the introductory paragraph of all counterparts of this Agreement, attest to their execution by a duly authorized officer of the City, and transmit one or more fully executed counterparts to NextG. - TO EFFECTUATE THIS AGREEMENT, each of the parties has caused this Agreement to be executed by its duly authorized representative as of the date set forth below the authorized signature. APPROVED AS TO FORM: CITY OF RANCHO PALOS VERDES, a municip- • -.•ration By.: - ....� By City Attorney Title ATTEST: Date: '` oic7V /4(4 .7lArete.e.k City Clerk NEXTG NETWORKS OF CALIFORNIA, INC., a Delaware corporation APPROVED AS TO FORM: B M rete Counsel T ti-• P Network Real Estate Date: September 13, 2011 Approved as to Form 21 and Legal Sufficiency.o y ti Signature/Initials Date: .j /2OL2 411) • EXHIBIT A EQUIPMENT [To be provided by NextG] A-1 1390063.1 110 • Q n 1 ::M:r: T A.T.C. i/—PROPOSED SECONDARY IT jr RAI)CENTER OB4'GR COAXIAL CABLE TO ANTENNA r —11.6.— . -11.6'o PROPOSED NUG FIBER o I SDLITTER 26'8'GR 9 1 3/40 CONDUIT O ENCASING COAXIA- CARE FEED Moo l'CONDUITREPEATER TO ANTENNA ENCASING DOVER FEED �'` FROM PROPOSED SECONDARY AERIAL LINE TO POWER PETER. A 0 3/4'•COI�OU I ENCASING FI1�R OPTIC CABLE FEED FROM AERIAL FIBER LINE i TO ADC CABINET. ..e i Mrxici r4 1IIrbirNT = _ _7. ENCL USUIRE Z = _ 18'11.14WA 10L1 = _ _ 1 DUBS AC POWER • /UAi TO REPEATER •gpCABLE TO • ANTENNA MAR f • FIBER OPTIC NETER , 1 CABLE POVER CAME PRO+ AC ROVER E SECONDARY AERIAL LINE. CONDUIT 113V AC DISCOPRECT B.-6. 1 NextG Proprietary& Confidential WOOD UTILITY POLE LAYOUT _ ___ SITE ADDRESS 11(01111111111 N EXTG NETWORKS EQUIPMENT CONFIGURATIONS TITLE VCODEN DISTRIBUTION POLE LARGE ADC DUAL BAND CABINET NON—METERED UNIT CONFIGURATION CGNTRACT NO, GREET. DRAWING ha NiTIDIIII DATE DRAW., 0i, 11 n n n "A" SCALL AS Sr%L!v NextG Networks EXHIBIT PLOT DATE• 16-16-2503 111111 • OMNIDIRECTIONAL ANTENNA t29.7'LONG 0.83'0) COAX.CABLE-N: TO ANTENNA NEXT°CQU$ Ut N T _ - - ENet OSUMI: _ _ 18'11,14'W x 4'0 t'iSIUU 1('; POVER FROM UTILLTv TO AC DISCONNECT GROUNDING PLATE 110V AC POWER FROMDISCONNEG' HAND:IOLE (30'X17') UTILITY TO til I' FLEXIBLE \ti LID LIGHT POST �iMETAL CONDUIT t GROUND LINE 11' J GROUNDING VIRE �, 2'CORE OVER FROM "`` 2 DRAIN N)LE DISCONNECT ,� AC � TO REPEATER NEMA BOX-� _\___ GROUNDING PIPE 75 FT COIL STREET LIGHT LAMP POST _LAYOUT NextG Proprietary& Confidential SCA-E. I/2' = -0' SITE AB SB NEXTG NETWORKS Tu. STANDARD STEEL LAMP POST MIKOM MMRB/19 REMOTE UNIT EQUIPMENT CONFIGURATIONS NON-METERED UNIT CONFIGLRAT ION CONTRA('NO, SKEET DRAWING MD DATE DRAY* 06 1 1-2009 2 "A" SCALE AS SKQNN NextG Networks EXHIBIT PLOT OA'E• 16-06-21103 dill • OMNI OR PANEL ANTENNA 24"-48" vir n I ` MOUNTING BRACKET 12"-24"HEIGHT r- REMOTE EQUIPMENT 0 00 7- t I_ o _ 8 +1. 1b' fillig I GROUND UNE TRAFFIC LIGHT POLE LAYOUT SFE ADDRESS. NEXTG NETWORKS TITLE. TRAFFIC LIul"I' PULE SINGLE ION CABINET EQUIPMENTCONFIGURATIONS IINNETF.R>=n ('_ONFI( IRATION CONTRACT NOS ' URE ZING M6 OATE DRAti'N• 4'4 I I 5009 EXHIBIT �' 11 SCALE AS VENN NextG Networks PLOT DATE. I6-06-2003 OMNI OR PANEL ANTENNA 24"-48"HEIGHT Li i POLE HEIGHT 25'-35' REMOTE EQUIPMENT 10' If GROUND LINE rf. '--I ..t it,I NEW POLE INSTALLTION LAYOUT SITE ADDRESS NEXTG NETWORKS TITLE TLE NEW UTILITY/STREETLIGHT PULE Cop EQUIPMENTCONFIGURATIONS Ix1Al. ION SHROUD C:Ati I WI' ‘-''"..111111111110, CONTRACT 143. SHEET, DRAWING ND 4 DATE DAAVN+Ot 1 l 2009 "A" SCALE; AS SWAIM NextG Networks PLOT DATE 06-06-20D3 Ill 0 . OMNI DIRECTIONAL ANTENNA 24'-48-Y 3' TO'AL WT = 33 LBS ANTENNA 011.1.11•11111111 24'-48'x 10 5' TOTAL WT = 55 LBS AN!I NNA l MOIMMIPIDI C Ito,:,ARM I XI I NI.:ION ,A A$' . s,„:„.1„,,,, 18'YODI I r TOONLUT I1 j �/r. `� � 71'Ycl(1i 1 / a8'M It:E: \ --; 1 J I ` SU PPOP T 3F�,CKE' \ \ A POLL TOP MOUNT CROSS ARM EXTENSION SIDE MOUNT DIRECTIONAL OMNI ANTENNA Ir. DUAL BAND OMNI ANTENNA 25'x20' or TOTAL WI= 55 LBS AN t I-N t4A\ F IULRCL.ASS POLL ar > 101'LX I LNSIUN -,, ANIENNA • ®d�'.� MOUNTING • _ `, BRACKET A TYPIOAI WOOD P01 r 3 P1.1A,,E I'M MANY TOP MOUNT DUAL SECTOR OMNI ANTENNA POLE TOP EXTENSION MOUNTING BRACKET 11 • 71 4140, i ? . ts.1° r �..�; " ti. .-CROSS ARM EXTENSION . ,o, I � � ''‘.,„‹/.%,, •• r • Desk PANEL ANTENNA 'y .t, \�' %24"-48'H x 8-W x 6"C e g SUPPORT BRACKET -J` -_6 evr •�f TOTAL WT = 50 LBS III CI .. PANEL ANTENNA ! . " , NEXTG C/N -AUS- 7 ` •CU:NDNC-' 24'.48"x 9'x6'. \ II A I R E TOTAL WT = 5C LBS _ _ \—•r 42).5r `&7',;/ • ti SIDE MOUNTED PANEL ANTENNA SIDE MOUNT ON CROSS ARM SITE ADDRESS 4,----- 4 NEXTG NETWORKS -- T1TLE. ANTENNA <Y)NFIGUNATIONS EQUIPMENT CONFIGURATIONS (MAI AND PANELS CONTIG'PQ, :EE, 1 DRAVINE.N6 A'E,RAV* 06-11-2004 ExHIBIT "A.„ SCALE. AS SW:UN NextG Networks PLOT DATE• 06-46-2013 0 0 , SPECIFICATIONS REMOTE EGY1IPME14T SPECIFICATIONS 32.7"-H DETAL(E•1) 480"-H 6.1" -W " 170"•W 1—6.11 rsz--1 5.8" -D I' 17 la * 18.0"-D 60-Lbs I ,�-,_.0 125•Lbs 4,11 + MAT O s_�w1F MLN I tii•I r 48 w 1 yr I Ii_ --c..-.J.1-.1_ INS 7:127-,%T....01 I C H ‘-,- 41.11.1.0.CK!1 1111 10.1111..• 01,14,4111041.111Y CHM fin, 'iti - -1' 4. -RC.- ,z: ::�_vxv ree� ,"I. '''�"'—40�! REMOTE EQUIPMENT SPEC E-1 �� i WI1Il t)I3GONNI CI AND ME_ILK(II H1_UUIRLU EJY LOCAL U11lilY) EQUIPMENT TYPE A-I 01 SPECIFICATIONS SPECIFICATIONS 48.0"-H 60.0" H 18.5"-W 17.0" W 20.5'-D +1.........1":.....7r 'r�— 1`"'rt 12.0"•D 120-Lbs .— .— - I- 150 Lbs II a... - 1111 I1ra FOUIPM NT •�► ENCIOSt)f .� .,. .,. 1 G C 1 y t - tr 4 P 1' ACCCS9 DOOR I • - 1 REMOTE EQUIPMENT SPEC E-2 E EQUIPMENT TYPE ADC 01 WITH SHROUD SPECIFICATIONS SPECIFICATIONS 48.0"•H 21.0"•H 30.0"•W 18.0"•W 24.0"-D 12.0"-D •\ 80-Lbs. .0-5' 0'-46-30"--e.i 4,9'X 3C" X 24' lo T ....._ J �` 1,„, �` POLE a s” 1 1,. 1 I I 11 ri .,,,,,,,,,,,,,,, ,,, 1--.,,,, rr1� :1. _ (;oho :] 1113 = _ _ j t+"�� R, J, UNDERGROUND CONDUIT It 14 NEXTG CONFIGURATION GROUND PEDESTAL APPLICATION IF-POLE MOON 1 EU EQUIPMEN I NO APPROVE° EQUIPMENT TYPE PW 01 - 1 SITE ADDIIESS5 NEXTG NETWORKS TITLE EQUIPMENT COM'1GURATIONS EQUIPMENT CONFIGURATIONS CONTRACT NO) SHEET' 3RAV:NG ND DATE DRAWN, 06-11-2009 „AI' SCALE. AS SNOVI! ,..., 6 NextG Networks EXHIBIT POT DATE- 06-06-2033 • 0 OMNI OR PANEL ANTENNA 24"-48"HEIGHT "Street Name" Pole Height 18' - 24' REMOTE EQUIPMENT - !A 7-1 10' 3 I GROUND LINE Street Sign Installation Layout , NEXTG NETWORKS SITE ADDRESS, - TITLE, NEW lJT I L.I TY/STREETL I CHT POLE EQUIPMENTCONFIGURATIONS 1> AI. I(IN SHit(H1U CJlti 1 NET 44) ,CONTRACT 1,13. SHEET. DRAINING ND DATE DRAWN, 01 I 1-).0U0 7 ExHIBIT ,,A„ SCALE. AS SNQVN NextG Networks RL," DA1 36,6-2E03 110 1111 OMNI OR PANEL ANTENNA 24"-48"HEIGHT ilk Existing 1 sign Pole Height 18' - 24' Remote Equipment > (Behind existing signs) Existing/////7 sign 10' it '► GROUND LINE r ' '-t Traffic Warning Installation Layout SITE ADDRESS -10°) NEXTG NETWORKS TITLE. NEW UTILITY/STREETLIIGT POLE EQUIPMENTCONFIGURATIONS 1AUAi. 1()N SHROUD CAH 1 NET CONTRACT lat SHEET. 111111 DRAVNIG ND O DATE DRAVN6 06-11-2009 8 „A„ SCALE AS SMSVN NextG Networks EXH I BIT PLOT DATE. 06-06-P003 EXHIBIT B FAITHFUL PERFORMANCE BOND KNOW ALL MEN BY THESE PRESENTS: WHEREAS, the City of Rancho Palos Verdes, California, a municipal corporation ("City") and NextG Networks of California, Inc., a Delaware corporation, ("Principal") have entered into an agreement for the occupancy of portions of the public ways upon City-owned infrastructure; and WHEREAS, the agreement, identified as "Right of Way Use Agreement," is incorporated by this reference; and WHEREAS, Principal is required under the terms of the agreement to furnish a bond for its faithful performance; NOW, THEREFORE, we, Principal and , as Surety, are held and firmly bound unto the City in the penal sum of Dollars ($ ), lawful money of the United States, for the payment of which we bind ourselves, our heirs, successors, executors, administrators, jointly and severally, firmly by these presents. The condition of this obligation is such that the obligation will become null and void if the above-bounded Principal, his or its heirs, executors, administrators, successors, or assigns, will in all things stand to, abide by, well and truly keep and perform the covenants, conditions, and provisions in said agreement and any alteration thereof made as therein provided, on his or their part, to be kept and performed at the time and in the manner therein specified, and in all respects according to their true intent and meaning, and will indemnify and save harmless the City, its officers, agents, and employees, as therein stipulated; otherwise, this obligation will be and remain in full force and effect. As part of the obligation secured hereby, and in addition to the face amount specified, costs and reasonable expenses and fees will be included, including reasonable attorneys' fees, incurred by the City in successfully enforcing the obligation, all to be taxed as costs and included in any judgment rendered. The Surety hereby stipulates and agrees that no change, extension of time, alteration, or addition to the terms of the agreement, the work authorized to be • performed thereunder, or the specifications accompanying the agreement will in any manner affect its obligations on this bond. The Surety hereby waives notice of any such change, extension of time, alteration, or addition to the terms of the agreement, the work, or the specifications; provided; however, that this bond is subject to the following express conditions: 1. This bond shall be deemed continuous in form and shall remain in full force and effect until canceled under Subsection 8.5 of the agreement, after which B-1 1390063.1 . 0 all liability ceases, except as to any liability incurred or accrued prior to the date of such cancellation. 2. The aggregate liability of the Surety hereunder on all claims shall not exceed the penal sum of this bond in any event. 3. The Surety reserves the right to withdraw as Surety from this bond, except as to any liability incurred or accrued, and may do so upon giving the City not less than sixty (60) days' written notice in accordance with Subsection 8.5 of the agreement. IN WITNESS WHEREOF, this instrument has been duly executed by the above- named Principal and Surety on , 2011. Note: All signatures must be acknowledged before a notary public. Attach appropriate acknowledgment. (Type name of Principal) (Type address of Principal) By: (Signature of authorized officer) (Title of officer) (Type name of Surety) (Type address of Surety) By: (Signature of authorized officer) B-2 1390063.1 •. (Title of officer) APPROVED AS TO FORM: CITY ATTORNEY B-3 1390063.1 • • SURETY RIDER To be attached to and form a part of Bond No. 0545986 Type of Removal Bond Bond: dated 7/21/2011 effective (MONTH-DAY-YEAR) executed byNextG Networks,Inc. ,as Principal, (PRINCIPAL) and by International Fidelity Insurance Company ,as Surety, in favor of City of Rancho Palos Verdes (OBLIGEE) in consideration of the mutual agreements herein contained the Principal and the Surety hereby consent to changing The Bond Amount FROM: Two Thousand Five Hundred and no/100ths Dollars--------------($2,500.00) TO: Twenty Two Thousand Five Hundred and no/100ths Dollars---------($22,500.00) This rider also adds the following node locations to the bond: PV17-6079 1/2 Crest Rd.Rancho Palos Verdes, PV18-29295 1/2 Hawthorne Blvd.,Rancho Palos Verdes,PV19- 6619 1/2 Crest Rd.(SW C/O Hawthorne/Crest),Rancho Palos Verdes,PV03-30358 Hawthorne Blvd.,Rancho Palos Verdes,PV08-30840 Hawthorne Blvd.,Rancho Palos Verdes,HAW-N14-7237 1/2 Crest Rd.,Rancho Palos Verdes, SP-N006-2693 Palos Verdes Dr.South,Rancho Palos Verdes,SP-N024 Floweridge Dr.,Ranchos Palos Verdes Nothing herein contained shall vary,alter or extend any provision or condition of this bond except as herein expressly stated. This rider 9/15/2011 is effective (MONTH-DAY-YEAR) Signed and Sealed 9/15/2011 (MONTH-DAY-YEAR) Internation Fidelity Insurance Co pany (SURETY) .13y: .117A44111"" (ATTORNEY-IN-FACT) Devan Perona S-0443/GE 8/08 XDP • CALIFORNIA ALL—PURPOSE A CKNOWLEDGM ENT STATE OF CALIFORNIA ) COUNTY OF SAN FRANCISCO ) On September 15, 2011 before me, D. B. Diaz, Notary Public Date (Here insert name and title of the officer) personally appeared Devan Perona NAME(S)OF SIGNER(S) who proved to me on the basis of satisfactory evidence to be the person(s) whose names() is/tire subscribed to the within instrument and acknowledged to me that heAkeithoy executed the same in his/imp/their authorized capacity ), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person() acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. �. ;.T., D. B. D!AZ Commission # 1906667 : ��o Notary Public-California 40i z San Francisco Count yam, y 2!: Signature of Notaoi My Comm. 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OWER.OVAT"f0 ''. ..... ... r......."':' ..:::::'::::- ..::::::::- '''''''. ..":::::'. :::::::::.:: :.*::::::::: ......::":-. '''''.::. '''''...... ::::".::. .':::::: :.: .:::::::::Z. ::::::0j,.:::::::: :' :'•::::::::::::- ::-.. .:!'.. ::::-...:::::INTERNATIONAL•FIDELITVINSURANCE COW:ANY .-::::::::::::::::-::::::' ::::::...ii-: ..... :.• : -.-::HOME OFFICE:ONE;::NEWARK:CENTER=:20TH FLOOR NEWARK.NEW JERSEY 102- 20 KNOW:ALL MEN BY THESE�:P at:::; �., . - O EL : .. .:.�'�..tER,.fi...ENTS T� .. .c�TI 1�,�►�, ITY Ili�`U�ItAI�TCg.CQ 'A1�lY, a�co �::�xatiau or- . ed:and:0cistin laws::.of•the•State of New:Jerse ::.and havin •its:'rinci. al office:in the.:Ci. of.Newark New Jersey->does:hereby constitute:.:and a int: L VA RO I �� A BARB NORTON J. San'Francisco, CA its trine'and lawfuiattnrne (s)�-m=fact-to execute,seal and deliverfor and onits behalf as surety,.,any and;all bonds and undertal�n s contrae of indemnityand,:..,:, other writings obli'ato: in the nature thereof,which:are or mat be allowed.,re.�uired or. stature rule: :re tion,:contract or otherwisand q tted byaw, the :execution of:<such. trument:s) in pursuance::of these resents,: shall be as:bin. E. P upon: the:.:::said : d: - NAIFIDELITY NSURANC : COMPANY, as fully:and amsply,to aIlintetts and-purposes,a$::if the:same had been dulyexecuted:and acknowledgeby its•re laxly elected officersat i ts: tincial cffce . Power of Attor.ne .is executed,and>ma �e rev ked and - .This • ... -. b. o ,pursuant to by. Article 3�ectioa�,of the B Laws adopted by the Board of Directors of INTERNA ONAL FIDELITY SURANCE COMPANY at a meeting called and•held•en the 7th day of February,.1974. The President or:a: -Vice President Executive:Vice President Secretary:or Assistant Secreta shall:have wer and•authority • (1)To appoint Attorneys-in-fact,and to authorize them to execute on behalf of the Company,and attach the Seal of the Company thereto,bonds and undertakings,contracts of•indemnity and::other writings obligatory in the•nature thereof and, (2)•To,reniove,at any rim e,any such attorney-in-fact and revoke the authority given. Further,.this Power of Attorneyis signed and sealed b :facsimile ursuant to resolution of the Board of Directors of said•Com�an adopted ted at a meeting y p P Y P duly called and held on the 29th•day of April,1982 of which the following' is a true excerpt: Now therefore.the signatures of such officers.and the seal of the Company,may be affixed to any such power of attorney or any certificate relating thereto by facsimile,and anysuchwer of attorne or certificate beating such facsimile si natures or facsimile sealshall be valid and bindin upon the Company Po Y g gg po and any such power so executed and certified by facsimile signatures and facsimile seal shall be valid and binding upon the Company in the future with respect to any bond or undertaking to which it is attached. tv%l Y/// IN TESTIMONY WHEREOF,INTERNATIONAL FIDELITY INSURANCE COMPANY has caused this instrument to be 4, . .`. affixed signed and its corporate seal to be by its authorized officer,this 16th day of October,A.D.2007. INTERNATIONAL FIDELITY INSURANCE COMPANY CI: VO4 . c STATE OF NEW JERSEY County of Essex :::J:.:: - --.* '... 1E0-1.1 * '•.- - ' - :--- . : • • . H • ....1: 14it- t$4‘.: :- .'. : . . Secretary :::01i this.:16th day'of October 24 7,before:<me came the individual who executed the cedin instrument,to mepersonally known,and,beingb. me duly. sworn:,said;the he is.the'therein described:and authorized.officer:of the :INTERNA. ONAL .-EL LTY:IN CE ......: , .. .. ANY;tha said-.instrument is thee.Co. rate:Seal.of:said Com an.. that the:said Co: rate Seal and his si nature were duly affixed`b order of the.Board t of Distal,a o . . P y, irec rs said Co an mp y A� xNT SS tONY WHEOF,I have hereuntoset my aa yd affixed My Oficiai.Sea1, �t the�iyof�fi_wark�,New Jcr,se theda ani: ear first•above wntten. :::::::•:,..]:•..:''•T ,,,,.:4:.:.•,.: ::::::-11.::.:':::-.. ‘ial:.:-:.::-;'::•',:-:'•:: :!::1:. -1.:!:11-:-:,,H:.-:.'.--H.•1:::--•:". -:.:',:•*.-1-:,•:-'1-11 .::::-":": '-':.:'H•l-•:-::::::-:H''.y 'NOTARY •-•::::.::•••:.•.'-:::::::::: ''''•.::.....•:•:....::'P UBLI:Cl'.:-::::.''''.:::-. '''''''''''''''"..:-. '1':::'''''''''''''''''.:''''' '-'::::.':.'''':'''''.: :.:''''''''L'"'. ..:::::''''' — .. ilk. ,,S i kl4Ite PI i a t il q e'`31k ,,,s k i.: .,...,4 i i# ... BN- ,.' .. YP� L O : ; EER . .: o n `.. Nov. 20 : . : �: CERTTFICATIDN : --'-'•:::-- I,.:tthe undersigned;officer of INTERNATIONAL FIDELITY:INCE`CQPANY::do:l ereb.:.ce t- _.:.that f:have com ...... g...... �.. of��e� . the f. ..-.o' oo . ..Power.of Attorney:and Affidavit,anti the:cop -::•o-f tile:::Section of,:the,.B..-Laws of said Comp at*:as set forth in•-.:said Power!of Attorney,:With the ORIGINALS.ON • . ...... -. : :IN:THE HOMWQFPICE OF,SAIWCOMPANY:.arid that the same.are::correct transcripts.thereof,.:.a]nd sof the.whole::of-:the said originals;.and`that thy::said:•Fowey ..-.........::of Attorney has•not-:been revoked:and is now,tn.fi ll force and effect: '•` •>da of..: :.::.< :::' TEST ION Vl C1 ,I::have.:hereunto s... :sand:mss..:1' t " S e G , .'1 :..,..... :::::...: ::„..:::: .:.......... ...................... :,:::::,... ....::::., :::::::::".„,......„, ................- ......,::,....: ......,............... .....:::::::.:: ::........,::: :.......::.:: .:'::::::.• ..,...........:.•:„.::.,...: ....e.......„ ..,:.::.::... ...,.::::::::. Assistant ire :