RPVCCA_CC_SR_2011_09_06_04_NextG_AgreementCITY OF
MEMORANDUM
RANCHO PALOS VERDES
TO:
FROM:
DATE:
MAYOR AND CITY COUNCIL
CAROL LYNCH,CITY ATTORNEY
SEPTEMBER 6,2011
SUBJECT:RIGHT OF WAY USE AGREEMENT WITH NEXTG NETWORKS
REVIEWED:CAROLYN LEHR,CITY MANAGER q,kor CL
RECOMMENDATION
Approve the Right of Way Use Agreement with NextG Networks of California,Inc.
(NextG),for the installation of radio and antenna equipment within public rights-of-way
within the City of Rancho Palos Verdes.
BACKGROUND
Next G has received approval from the California Public Utilities Commission (CPUC)to
construct a Distributed Antenna System (DAS).The DAS allows NextG to provide RF-
over-Fiber transport solutions that enable wireless carriers such as MetroPCS to
expand their coverage and/or capacity in the area.As part of this network,the company
has requested to install micro-antenna and other associated equipment primarily on
existing facilities that are located within the public street rights of way.Some of the
facilities to which they would like to attach are owned by the City (street sign poles,
street li.ghts and traffic signals);other existing facilities to which they have attached their
facilities,such as street lights,are owned by entities such as Southern California Edison
Company.Attached as Exhibit A to the proposed Agreement are examples NextG's
facilities.
The City Council may recall that on July 5,2011,the City Council approved a
Memorandum of Understanding with NextG to allow it to install its equipment on a City-
owned street sign pole,which is located on Palos Verdes Drive South.Currently,
NextG has approximately 80 nodes that are in use in the City and 4 more sites currently
are proposed.NextG would like the City Council to approve right-of-way use agreement
that will allow it to construct its installations on approved locations within the City's
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Right of Way Use Agreement with NextG Networks
September 6,2011
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rights-of-way and pay revenue to the City similar to the revenue structure that has been
approved by other municipalities in Southern California.
DISCUSSION
When the City Council approved the Memorandum of Understanding,Staff reported that
a Right of Way Use agreement would be presented to the Council in the future.
Following the Council's action in July,the City Attorney and Counsel for NextG
negotiated the attached agreement.
The term of the Agreement is ten years.The Agreement will allow NextG to attach its
facilities to City poles and to poles owned by other entities.In addition,NextG also may
construct its own poles to accommodate some of its facilities.All of these facilities must
receive City permits in order for NextG to commence construction.This means that
NextG must obtain building permits for its installations.In addition,if construction will
occur below ground within the right-of-way,NextG will need to obtain an encroachment
permit from the Public Works Department.Finally,NextG also will follow the City's
current process of constructing a "mock-up"of the facility to analyze any potential view
impairment issues from residential properties in the City.If the facility will cause
significant view impairment,the Director of Public Works can require the facility to be
moved to a different location unless the movement to another site will cause NextG to
have a significant gap in its coverage or prevent it from providing service to its
customers.
NextG will pay an annual fee of $500 to the City for each City-owned pole to which it
attaches its facilities.In addition,NextG also shall pay a fee to use any City-owned
conduit.These fees shall be adjusted every five years based on the CPI.In addition,
NextG also shall pay to the City annually an amount equal to 5%of its Adjusted Gross
Revenue arising from the facilities that are located in the City.NextG estimates that the
City will receive approximately $40,000 per year from NextG pursuant to the terms of
the Agreement.
NextG shall be responsrble for any damage to the rights-of-way and to any City facility
and shall post a bond for every facility that it installs.The Agreement also requires
NextG to provide insurance and to remove facilities at the end of the Agreement.
Staff recommends that the City Council approve the attached agreement with NextG
Attachments:
•Proposed Right of Way Use Agreement
•Exhibit A to the Agreement,which depicts NextG's proposed installations
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CITY Of RANCHO PALOS VERDES
RIGHT-Of-WAY USE AGREEMENT
THIS RIGHT-Of-WAY USE AGREEMENT ("Agreement")is ente'red into on
----=:--::-:,---.,-----_'2011 ("Effective Date"),by the CITY OF RANCHO PALOS VERDES,
a California municipal corporation ("City"),and NEXTG NElWORKS 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.
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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 (Le.,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.
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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 Agreernent 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
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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 1O-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 ir.J 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 (iii)NextG neither damages
nor interferes in the operation of the Municipal Facilities.City makes no guarantees or
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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 ieast 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
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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
iimited to laying,installing,maintaining,protecting,replacing,and removing,traffic
signals,street iights,sanitary sewers,water mans,storm drains,gas mains,poles,
overhead and underground electric iines,telephone iines,cable television iines,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 pubiic or private rights-of-way,sanitary sewers,water mains,storm drains,gas
mains,poles,aerial and underground electrical and telephone wires,electroiiers,cable
television and telecommunications faciiities,utilities,or municipal property,without the
express written approval of the owner or owners of the affected property or properties,
except as authorized by appiicable laws or this Agreement.
3.6 Compliance with Laws.NextG will comply with all appiicable laws in the
exercise of its rights and the performance of its obiigations 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 iimitations 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 noncompiiance
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 Pubiic 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 streetiight or traffic-signal pole,if any,upon which
NextG's Equipment has been installed pursuant to this Agreement;and
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(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-ot-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-ot-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 ot 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
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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 %)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-af-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.
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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
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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.
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(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 ttie 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
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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.
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.'.
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;
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.'.
(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
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.'.
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 S,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,nile,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
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specified in this section,including reasonable attorneys'fees and costs,will be paid by
NextG.
8.5 Required Endorsement.The faithful perforrnance 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
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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 !his
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 NextG:
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
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'.
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
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.'.
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 anyone
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
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.'.
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 Agreernent 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
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.'.
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:
By:_~----:-c,.------_
City Attorney
ATIEST:
City Clerk
APPROVED AS TO FORM:
Corporate Counsel
CITY OF RANCHO PALOS VERDES,
a municipal corporation
By _
Title _
Date:_
NEXTG NETWORKS OF CALIFORNIA,
INC.,a Delaware corporation
By:_
Title:_
Date:_
21
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.'.
1390063,I
EXHIBIT A
EQUIPMENT
[To be provided by NextG]
A-I
.,
4-24
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1EXHIBIT"A"
NEXTG NETWORKS
EQUIPMENT CONFIGURATIONS
NextG Networks 4-25
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STREET LIGHT LAMP POST LAYOUT
stAU:.VZ'•1'-0'
DJOIIDlRECTlIl"1Il.AIfTOfHA
CZ9.7"UIh1i 0.83".)
NextG Proprietary &Confidential
n-.u.n ....DARD STEEl.~POST
"-1KCK MMA:8/19 AtKOT£LDaT
NtW-HnIJlED OOT CllHrJGl$l4T1~
NextG Networks
NEXTG NETWORKS
EQUIPMENT CONFIGURATIONS
EXHIBIT "A"
DATI:tJl'AVNI P('-ll-:!OO')
SCAL.L A::M0Vt1
SHtcT·
2
4-26
OMNI OR PANEL
/ANTENNA 24"-46"
n
I ~~'.--MOUNTING BRACKEr
--..:::::..--12"-24"HEIGHT
~
rrr V REMOTE EQUIPMENT
~
........:--
--;::
c-Oi=-8-
~111'
o
0r===~o
"--
,I,
____-Ll__L.------CG;illROUND UNE
TRAFFIC LIGHT POLE LAYOUT
--
nTt.L 'ntAVl'lC LIGln"po1.!!
SII.JCL.E IOU CABIUET
101HP.TP.RP'O cntl'rc:unATIQn
3DATe~,\\"w.0'-11-300:1
SCAl!,AS SHINNEXHIBIT"A"
NEXTG NETWORKS
EQUIPMENT CONFIGURATIONS
NextG Networks
~.
4-27
OMNI OR PANEL
•~ANTENNA
~24"-48"HEIGHT
.,
·1,
POLE HEIGHT
25'-36'
REMOTE EQUIPMENT
=
10'
NEW POLE INSTALLTION LAYOUT
nn.u
tlEW UTII.ITY/STRt!:trrLICUT rolE:
WAI.IOU SIIUOUD CAnllurr
4
SlaT.
MTt IJft\1/Hf 06-11-;\00'1
SCAL[,AS SIlllVN
DRA\lUI:I liO
EXHIBIT "A"
NEXTG NETWORKS
EQUIPMENT CONFIGURATIONS
NextG Networks
4-28
POLE TOP MOUNT
OMNI DIRECTIONAL ANTENNA
24'.48'x 3'
TOTAL \'IT g 33 LBS
CROSS ARM EXTENSION
ANTEllllA
/
N ••48'Xl0S
TOTAL WI =55 LBS
.air UQO[l 0·t
II
74·YonEL
SIDE MOUNT DIRECTIONAL OMNI ANTENNA
J\Ulf,.,u\
"UIE'UfI\
WOUHTIUG,
DIV.CI'CT .,,.........~
~..,;:;;----"
TYPICAl '~T'D'"~
woon POlC \J I 1 PILASE
11UlwAIty
rtD[;RG~~NlLE
lor EXIEr4SIOII '\
DUAL BAllO OMW ANTENNA
25'x 20'
TOTAL IVT =55 LaS
0.0
,l~l ' •
.1,
TOP MOUNT DUAL SECTOR OMNI ANTENNA POLE TOP EXTENSION
MOUtffiNG BRACKEr
GROUNDING
WIRE
PAIlEL ANTENNA
L NEXTG C/N -NJJ-
24',48"xa"x6"'
TOTAL WI =50 L.BS
SIDE MOUNTED PANEL ANTENNA
SUPPORT BRACKET
SIDE MOUNT ON CROSS ARM
5
AJrTt!rtJIA CX)flf'lCURATlOfI5
QHJI I .urn It AU!!!.!;
TlIlL
DAt,Cl'A\IMl 0(,·11-)00.,
SCAU.AS SHIN"EXHIBIT "A"
NEXTG NETWORKS
EQUIPMENT CONFIGURATIONS
NextG Networks 4-29
'sir
U
SPECIFICATIONS
32.7"0 H
6.1"-w
5.8"-0
60-Lbs
,I
REMOTE EOUIPMHIT
DETAL(E.lj
17-
Uf:lTOl:UVtl'ytrtt
[nClOSUltE
40'
D1scm,"tct :;'WJ1CII
IIl"'d,",'·
Ul!IIIH.1iOC.k'I.·••·••·
IJl'DtqUIDU....l"'""y)
18-
-I
SPECIFICATIONS
48.0"-H
17.0"·W
18.0"-0
125·Lbs
REMOTE EQUIPMENT SPEC E-1
WIIIIUI:H:mWLr:r AUUWEllHClf f~EUUIIlE[)UY LUGI\L U,llItY)
REMOTE EQUIPMENT SPEC E·2
SPECIFICATIONS
60.0"·H
17.0"·W
12.0··0
150 Lbs~1~~.1---
----60·
lit".'0 (OtM'UfHr
E.IClO~\£
ACct~:i OOUIl
SPECIFICATIONS
48.0"·H
18.5"oW
20.5"0 0
120·Lbs1-··~~l
'H.,.
1--JTlInr-r-----l
I I~
.t.
Willi !JIIHOUD
r"·...
T
I
SPECIFICATIONS
21.0"·H
18.0·.W
12.0··0
80·Lbs.
NEXTG CONFIGURATION
SPECIFICATIONS
48.0"·H
30.0"·W
24.0"-0
48"X 30·X 24"
GROUND PEDESTAL
N'PUCI\1I0N IF POLE IdOUN1EU~QUIPNENI NON'PROVEU
I!OlIII)HlUIT (XIUI'IGtJRATlOU:;
6
rJlAV1t(i Nt)
COHT'RACT till
PLOT DATC.U-t6-eQ.0;3
EXHIBIT "A"
NEXTG NETWORKS
EQUIPMENT CONFIGURATIONS
NextG Networks
4-30
,I,
REMOTE EQUIPMENT
OMNI OR PANEL
,~ANTENNAV24"-48"HEIGHT
:If Street Name If I
Pole Height
18 I -24 I
~=
10'
-
f \
j
Street Sign Installation Layout
o",
NextG Networks
NEXTG NETWORKS
EQUIPMENT CONFIGURATIONS
EXHIBIT "A"
SIlt:ADaiESS.
nn.c.
tU!W UTIlITY/STtteL'TLIClrT roU!
Utl....J.rem SIlHrnm CAn1l41-:T
CDNTMGT ,no
DATE OM'liKJ 06-11-aOQ,)7
stALE:,AS SIllI\II4
PLOT DA Tt.O.-c6-ltlO 4-31
OMNI OR PANEL
,~ANTENNAV24"-48"HEIGHT
,t,EXi';;;~~"-
Remoce Equipmenc ~.)
(Behind existing signs)------~==Z7~,~~-l__.
Existing
sign
10'
Pole Height
lB'-24'
Traffic Warning Installation Layout
NextG Networks
NEXTG NETWORKS
EQUIPMENT CONFIGURATIONS
EXHIBIT "A"
SIre ~nCR£S:.
nTLL
Ill!W UTILITY/snHmn.IGlrr rOLl!
DIIAI.ION SlUtOLJI)C;AIUJUIT
SH£tT,
DRAVtKi ".0
DAT£tlfA\iH.06-l1-a00'1 8
SCALC,AS SHO\IN
4-32
.'.
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 4-33
.'.
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 <\11 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 4-34
.'.
APPROVED AS TO FORM:
CITY ATIORNEY
1390063.1
B-3
(Title of officer)
4-35