NextG Networks of California Inc (July 2011) M c
CONSENT TO CHANGE IN CONTROL OF
NEXTG NETWORKS OF CALIFORNIA,INC.
SI'
This Consent to Change in Control ("Consent") is granted and effective this,/ day of
‘r(1G.1\eA". , 2012 by the City of Rancho Palos Verdes, California (the "City") with
respect to NextG Networks of California, Inc., a Delaware corporation("NextG").
Recitals
A. NextG provides telecommunications services to wireless carriers through
distributed antenna systems and other facilities located within the United States.
B.. The City and NextG entered into a Right-of-Way Use Agreement dated
September 6,2011 ("Agreement)that provides, in relevant part, as follows:
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:
(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.
C. NextG is a wholly-owned subsidiary of NextG Networks, Inc., a Delaware
corporation ("Parent"). On December 15, 2011, Parent entered into an Agreement and Plan of
Merger with, among others, Crown Castle International Corp. (NYSE:CCI), a Delaware
corporation ("CCI"), whereby Parent will become a wholly-owned indirect subsidiary of CCI
and a wholly-owned direct subsidiary of Crown Castle Solutions Corp. ("Solutions"), and
thereby effect a change in control of Parent(sometimes referred to as the "Merger").
D. NextG will remain a separate and existing legal entity following the Merger, and
accordingly, the parties to the Agreement will remain unchanged upon and after the effective
date of the change of control transaction.
E. The City is willing to grant its prior written consent to the change in control of
NextG as provided under the Agreement on the terms and conditions set forth below.
F-6
3044 005 1a100108
1
4
I
. . . . .
NOW THEREFORE, in consideration of the recitals set forth above, and for other good
and valuable consideration,the parties hereby agree as follows:
1. The City Council consented to the consummation of the Merger by resolution
dated M ai%on 20 , 2012.
2. Effective as of the date of this Consent, the City hereby grants its consent to the
change in control of NextG as provided under the Agreement in connection with the Merger.
3. This Consent shall be governed by and construed in accordance with the laws of
the State of California, regardless of the laws that otherwise govern under the principles of
conflicts of laws.
4: This Consent shall be binding upon and inure to the benefit of the parties to this
Consent and their respective designees, affiliates, successors and assigns.
5. This Consent may be executed in one or more counterparts, all of which shall be
considered one and the same agreement and shall become effective when one or more
counterparts have been signed by each of the parties and delivered to the other party, whether in
original or facsimile form, it being understood that all parties need not sign the same counterpart.
[no further text;signature page follows]
2 F-7
3044 005 ia100108
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In witness whereof, the parties have executed this Consent effective as of the date first
shown above.
NEXTG NETWORKS OF CITY OF RANCHO PALOS VERDES
CALIFORNIA,INC.
14/ By cAzi-o-r?' cf'
By
Robert L. Delsman dtje(n 3rwkc
Senior Vice President Printed Name
Government Relations& Regulatory Affairs
Title al°
Date: 8/q//:
APPROVED AS TO FORM:
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Printed Name
A-/-17 .te7
Title
Date: 1/3/3-4c,/.3
3
3044 005 ia100108 F-$
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MEMORANDUM OF UNDERSTANDING
THIS MEMORANDUM OF UNDERSTANDING (the "Memorandum") is made on
this 18th day of July,2011 (the "Execution Date"),
BETWEEN:
NextG Networks of California, Inc., a Delaware corporation, hereinafter referred to as
"NextG", and
City of Rancho Palos Verdes, a California municipal corporation, hereinafter referred to
as"City"
(collectively the"Parties")
WHEREAS NextG and the City desire to enter into a Right of Way Agreement whereby
NextG would gain the right to attach its equipment to certain City infrastructure, and the
City would share in the revenues generated by NextG within its jurisdictional borders;
AND WHEREAS the Right of Way Agreement may take an extended period of time to
negotiate and execute, thus both Parties agree to enter into the Memorandum in order to
address a critical path site and demonstrate good faith.
BACKGROUND AND SERVICES
NextG provides a fiber-based network system, with an optical-to-radio frequency ("RF")
conversion and RF transport services. NextG is not a wireless service provider and does
not own spectrum nor sell wireless services directly to consumers. NextG's customers
are the wireless carriers themselves. When an operator cannot cover an area with
traditional antenna/cell sites, they often turn to NextG's service to fill this gap in
coverage and to increase their network capacity. NextG's services extend carrier RF
signals in these areas. NextG customers then offer improved services to their customers
typically consumer wireless phone users. NextG constructs and operates the fiber-fed
node networks. NextG's equipment includes small antennae, which allows NextG to
interface and convert its customer's RF signal into an optical signal for transport over
NextG's fiber network.
NextG is a state regulated utility, having been granted certificate of public convenience
and necessity ("CPCN") #U-6745-C from the Public Utilities Commission of the State of
California. This certificate classifies NextG as a Competitive Local Exchange Carrier
(CLEC) providing state regulated telecommunication services. NextG is a public utility,
engaging in regulated telecommunication services entirely within the public right of way.
NextG is not a cellular, PCS or other wireless service, but a fiber optic company.
NextG's facilities depend on the ability to attach to existing utility infrastructure. As a
public utility, NextG is a member of the Southern California Joint Pole Committee
1
1372052.1
•
(SCJPC). NextG has a vested ownership interest in the utility poles within the SCJPC
territory. This interest includes the right to attach its equipment to utility poles, subject to
SCJPC's approval. In addition, should the City be interested in making any City-owned
streetlight, street sign and traffic light poles (collectively "poles") available for the
deployment of the network equipment, NextG shall be willing to do so in lieu of
installing new utility poles.
PURPOSE
This Memorandum will establish some basic terms to be used in a future Right of Way
Agreement between the Parties. The terms contained in this Memorandum are not
comprehensive and it is expected that additional terms may be added, and existing terms
may be changed or deleted. The basic terms are as follows:
Prior to entering into a Right of Way Agreement,the City agrees to issue NextG a permit
to construct the critical path site,known as: VZ 1018CA-SP01, street name sign, located
at 2693 Palos Verdes Drive South, which has been reviewed and approved by City Staff
through the City's standard process. The issuance of said permits for the critical path site
and the construction of the sites shall be covered by the Right of Way Agreement
negotiated between NextG and the City. NextG further acknowledges and accepts the
potential risk that if a Right of Way Agreement is not reached by the Parties,NextG may
be required by the City to remove its equipment from the critical path site, at NextG's
sole expense.NextG agrees to remove its equipment from the critical path site within
thirty days of the date when City issues written notice to NextG to remove its equipment.
In order for the City to issue the permits to NextG,NextG agrees to comply with all of
the terms of the permit and post any and all insurance requirements required by the City.
NextG shall post any required construction bond. In addition,NextG shall post a faithful
performance bond in the amount of$2,500.00 per node to ensure the right of way is
restored after a node is decommissioned.
COMPENSATION
In order to compensate City for NextG's attachment to City infrastructure,NextG shall
pay to the City a license fee of$1,000.00 for the year that this Agreement is in effect.
NextG must make the payment to City within 10 business days of the Effective Date.
Subsequent license fee payments for this will be included in the comprehensive Right of
way use Agreement,unless the parties agree instead to enter into a subsequent agreement
that shall govern only this site, in which case, its terms shall control the use of this site
and future payments by NextG to City.
2
1372052.1
APPLICABILITY
The terms and conditions of any future agreement will supersede any terms and
conditions contained in this Memorandum. This Memorandum shall be considered
terminated one(1)year after its Execution Date.
Mutually agreed to and accepted by:
NEXTG NETWORKS OF CALL ORNIA, INC.
-410
wire July 21, 2011
'obe elsman Date
SV Government Relations & Regulatory Affairs
CITY OF RANCHO PALOS VERDES
/ ?(01/070V
Thomas ir ong�ayor Date
ATTEST:
Approved as to Form
City Clerk and Legal Sufficiency:
5ignature/Initials
1376797.1 Date: _/2pL
3
1372052.1
11 0
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CML CODE 11189
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State of California
'.;
County of Santa Clara / '
On July 21, 2011 before me, David R. Elston Jr., Notary Public
.v
personally appeared Robert L. Delsman
',
who proved to me on the basis of satisfa ory
evidence to be the pe whose nam �s/ re
subscribed to the within instrument and acknowledged
t• me that the/they executed the same in
.,� DAVID R.ELSTON JR. i :r/their authorized caps , and that by
'Allili?�``- Commission 1939722 1. er/their si natur on the instrument the
. Notary Public-California
4
\I l ►% Santa Clara County persory(g, or the entity upon behalf of which the
M Comm. ares Jun 4,2015 persoacted, 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 and and official seal.
Signat =. A� l
Place Notary Seal Above S re
g Public
OPTIONAL `-.
Though the information below is not required by law,it may prove valuable to persons relying on the document
0 and could prevent fraudulent removal and reattachment of this form to another document. ..
Description of Attached Document
Title or Type of Document: Memorandum of Understanding
Document Date: July 18, 2011 Number of Pages:
Signer(s)Other Than Named Above:
t.
Capacity(ies) Claimed by Signer(s) 1
Signer's Name: Signer's Name:
r,
C Corporate Officer — Title(s): 0 Corporate Officer— Title(s): t
C7 Individual NRH I iF+ur:?BPRIN; 0 Individual Pic-O n r'FPRI':T f'
OF`..il.NE R .'* _,r, n
D Partner—0 Limited 0 General Top of thumb here 0 Partner --0 Limited 0 General Top of thumb here
U Attorney in Fact 0 Attorney in Fact
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Y-1 Trustee 0 Trustee
', U Guardian or Conservator 0 Guardian or Conservator
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U Other: 0 Other:
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,Y Signer Is Representing: Signer Is Representing:
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®2010 National Notary Association•NationalNotary.org•1-800-US NOTARY(1-800-876-6827) Item#5907
Bond No. 0545986
Premium:$ 100.00 per annum
SURETY BOND
KNOW ALL MEN BY THESE PRESENTS, That we, NextG Networks hereinafter referred to as the
Principal, and International Fidelity Insurance Company , a corporation organized and existing under the
laws of the State of New Jersey and authorized to do business in the State of California ,as Surety, are
held and firmly bound unto City of Rancho Palos Verdes ,hereinafter referred to the Obligee,in the sum
of Two Thousand Five Hundred and No/100 Dollars ($2,500.00), lawful money of the United States of
America, to the payment of which sum well and truly to be made, we bind ourselves, our executors,
administrators,successors,and assigns, firmly by these presents.
THE CONDITION OF THE ABOVE OBLIGATION IS SUCH,That the Principal and the City of Rancho
Palos Verdes desire to enter into a Right of Way Agreement whereby NextG would gain the right to attach
its equipment to certain City infrastructure,and the City would share in the revenues generated by NextG
within its jurisdictional borders;
AND WHEREAS the Right of Way Agreement may take an extended period of time to negotiate and
execute, thus both Parties agree to enter into the Memorandum in order to address a critical path site and
demonstrate good faith. It is agreed that if Principal defaults with respect to any terms and conditions of
this Agreement, obligee may use, apply, retain or draw against the whole or any part of said security
deposit or surety bond required for restoration of the Right of Way or any other sum as to which the
Principal is in default or for any sum which the Obligee may expend or may be required to expend by
reason of the principal's defaults of any of the terms, conditions, and covenants of this Agreement. If
Principal shall fully and faithfully comply with all the terms, covenants, and conditions of this Agreement,
the surety bond shall be extinguished no later than sixty(60) days after the end of this Agreement provided
Principal delivered the Premises in the manner required by the Agreement.
NOW, THEREFORE, if upon termination of the agreement, the Principal removes all additions and
equipment belonging to the Principal and restores the premises to the original condition, then this
obligation shall be void;otherwise,to remain in full force and effect.
The total amount payable under this bond, in the aggregate, shall be the penal sum referenced above,
regardless of the number of years this bond remains in force. This bond is a continuous obligation and
shall remain in force until cancelled. The Surety may cancel the bond at any time by giving the Obligee
written notice ninety(60) days prior to the effective date of cancellation. Upon the cancellation effective
date, future exposure to the Surety under this bond shall terminate. However,the Surety shall remain liable
for any exposure under this bond resulting from the Principal's failure to fulfill its site restoration
obligations during the time this bond was in force. Cancellation by the Surety does not need to be accepted
by the Obligee to be effective. The Obligee may terminate this bond at any time.
Signed,sealed and dated this 21st day of July,2011.
NextG Networks
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Inte ational Fidelity Insurance Company
By: , P
Ba ie Norton,A orney-In-Fact
CALIFORNIA ALL—PURPOSE ACKNOWLEDGMENT
STATE OF CALIFORNIA )
COUNTY OF SAN FRANCISCO )
On July 21, 2011 before me, D. B. Diaz, Notary Public
Date (Here insert name and title of the officer)
personally appeared Barbie Norton
NAME(S)OF SIGNER(S)
who proved to me on the basis of satisfactory evidence to be the person(s) whose
names(s) is/aite subscribed to the within instrument and acknowledged to me that
im/she/thty executed the same in his/her/their authorized capacity( ), and that by
him/her/tom signature(s) on the instrument the person(s), or the entity upon behalf of
which the person(s) 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.
D. B. DIAZ
Commission # 1906667
Notary Public -California
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San Francisco County
res Oct 2014
Signature o otary
My Comm Expi3,
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other writingS-Obligatoi3n the nature thereof,whi0h,are or,:mayi:1;)e allowed,required:o.t•-:•pergutted•by law,stature,rule çg1lation,:•-contract or,-Dtherwiseand
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COMPANY,aSfully...::andiainply,:::-10 all intents and purposes,as if the same had been duly:executed and acknowledged by its regularly:elected officers at its
principal office. .•••-, •
This Power:Of:AttorniS executed,and may be revoked,pursuant to and by'authority.:Of Article.3-SeCtiOn'T,::Of the'BytLaws adopted by the Board of
Directors of INTERNATIONAL FIDELITY INSURANCE COMPANY-at a theetinic41.1ed:iand:held.,:on ti*:7:th:::day:•OfFebruarj:1974.i.:. ••••. • • •
•:::.::::•:-,,,The:.:PresidentOri:44y.:YiCe President,Executive Vice President,Secretary or Assistant Secretary,shall have power 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, -• •
• •
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(2)To remove,at:ianyInne,any: such:attorney-in-fact and revoke the authority•given.
•:'• Further,:this Power of Attorney is signed and sealed.by facsimile:pursuant to resolution of the Board of Directors of said Company adopted at a meeting
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 any such power of attorney,or certificate bearing such facsimile signatures or facsimile seal shall be valid and binding upon the Company 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.
IN TESTIMONY WHEREOF,INTERNATIONAL FIDELITY INSURANCE COMPANY has caused this instrument to be
4N1' ... signed and its corporate seal to be affixed by its authorized officer,this 16th day of October,A.D.2007.
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INTERNATIONAL. ELITY INSURANCE COMPANY 14‘• dgJ
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On this 16th October 2007,before me Cole eexecutedthesprepeding . being by me duly
sworn,said the he 1 :ItheIhereilide .otibed,itiid..authorited:officet of .:-::INTERNATIONAL IIDELITY INSURANCE COMPANY;E.that:the seal affixed to
...-Said-:inStEtInletit is the Otitporattii:Seal,..orisaid-,COMpOy,that the said Corporate Seal a0d-his,•isignatore,Wereduly.affiXediby Order:of the.Boarde-of Directors of
said Company.
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:OA Ft(1) • IN TESTIMONY WHEREOF:1 hae::.lieretinto.:::Set my hand affixed my OfficiAtSeal, -.:.••
the City of Newark,Newct.::-)?•-ear first above written.
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A:NOTARY PUBLIC OF NEW JERSEYCERTIFICATION
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undersigned officer INTEINN.117Q.T./A1FIDELITY•M$U4ANCE....:COMPANY.:4O hereby certify that I have compared the foregoing copy f:the
•-::?Ptivi*t.of AttOrneY:-..and.affidaVit,and the copy the Section of the:B -Laivs of said Company as set forth in said Power of Attorney;,with the•EORIGINALS•ON-•:::-:•••
IN THE HOME OFFICE OFSAIIYCOMPANNVand that the Sarnearei: orrect tratiotiptsirthereof:,,: nd..-*Of th0:.:-W-.U01.0....•,,orthe said originals and that the:.SO4:TO*er
:: f Attorney has nOt binñ revoked,iiid is no*---43i:full force and
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11111 •
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CML CODE f 11811
• I
y State of California
County of Santa Clara t ,,
f
4
On July 21, 2011 before me, David R. Elston Jr., Notary Public
v '
personally appeared Robert L. Delsman '•
4
who proved to me on the basis of satisfactory
evidence to be the persog( 'whose nam i re
subscribed to t within instrument and acknowl ged
t• me that he he/they executed the same in ,,
4 er/their au rized caps • ), and that by :,, '4010pr -
DAVID A.E1.ST�it JR. er/their si natur on the instrument the '=
Commission• 1939722 g
y 'r41 - Notary Public-California ••=rsor df or the entity upon behalf of which the
V. p•,►/ Santa Clan County persory acted, executed the instrument.
COMM. •s Jun 4,2015
I certify under PENALTY OF PERJURY under the
laws of the State of California that the foregoing
• paragraph is true and correct.
,•
WITNES hand and official al.
• Signat b =:11111,40.-161
Place Notary Seal Above
S ublic
OPTIONAL <.
,r
Though the information below is not required by law,it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document. ,
h
Description of Attached Document
• Title or Type of Document: Surety Bond - City of Rancho Palos Verdes •
Document Date: July 21, 2011 Number of Pages:
Signer(s)Other Than Named Above:
• Capacity(ies) Claimed by Signer(s) ti
s
• Signer's Name: Signer's Name:
D Corporate Officer — Title(s): 0 Corporate Officer — Title(s): ti
❑ Individual Ric HT THUMBPRINT ❑Individual RIG,T THUVBPR{':T ir
of `,IG TER 0, s.r,r4LR
,y ❑ Partner—❑Limited 0 General Top of thumb here 0 Partner --0 Limited 0 General Top of thumb here
0 Attorney in Fact 0 Attorney in Fact
Li Trustee 0 Trustee 5'
,, ❑ Guardian or Conservator 0 Guardian or Conservator
0 Other: ❑Other:
Signer Is Representing: Signer Is Representing:
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