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HomeMy WebLinkAboutMINUTES - 06132006 - C.2 TO: BOARD OF SUPERVISORS .:��=� '`��r"��`' Contra FROM: MAURICE M. SHIU, PUBLIC WORKS DIRECTOR �If Costa DATE: June 13, 2006 `` County coun`�r SUBJECT: Installation of fiber-based telecommunications and microcellular optical repeater equipment in the unincorporated county public ways. Project No.: 7394-6X5006 Task: N/A Acct: N/A SPECIFIC REQUEST(S)OR RECOMMENDATION(S)&BACKGROUND AND JUSTIFIC'A'TION Recommended Action: APPROVE and AUTHORIZE the Chair, Board of Supervisors, to execute a Right of Way Use Agreement between Contra Costa County and NextG Network, I.nc. (NextG) for NextG's.installation of Fiber-based telecommunications and microcellular optical repeater equipment in the unincorporated county public ways. Financial Impact: The Right of Way Use Agreement is for a term of ten years and provides for annual fee payments subject to yearly CPI adjustments. Reasons for Recommendations and Background: NextG requested a non-exclusive agreement to install, operate and maintain fiber optic cables and associated equipment, including rnicrocellular and antenna facilities in the unincorporated county public ways. Consequences of Negative Action: The Right-of-Way Use Agreement will not be executed. Continued on Attachment: No SIGNATURE: bit ­IfECOMMENDATION OF COUNTY ADMINISTRATOR _RECOMMENDATION OF BOARD COMMITTEE 'PPROVE OTHER SIGNATURE(S): ACTION OF BO R ON % APPROVED AS RECOMMENDED OTHER VOTE F SUP VISORS UNANIMOUS (ABSENT) AYES: NOES: ABSENT: ABSTAIN: I hereby certify that this is a true and correct Document3 copy of an action taken and entered on the Orig.Div: Public Works(R/P) minutes of the Board of Supervisors on the Contact:Ron Babst (313-2221) date shown. cc: County Administrator Auditor-Controller(via R/P) ATTESTED: �Ierkof /�_ 1. erW.Accounting JOHN CULLE e Boardof I. Bergeron,Computer Services Recorder(via R/P) Supervisors and County Administrator By -, Deputy CONTRA COSTA COUNTY Right-of-Way Use Agreement THIS RIGHT-OF-WAY USE AGREEMENT (this "Use Agreement") is dated as of 2006 (the "Effective Date"), and entered into by and between the COUNTY OF CONTRA COSTA, a political subdivision of the State of California (the "County")and NEXTG NETWORKS, INC., a Delaware corporation dba NextG Networks West ("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 or Networks (as defined in § 1.9 below) serving NextG's wireless carrier customers and utilizing microcellular optical repeater Equipment (as defined in § 1.3 below) certified by the Federal Communications Commission. B. For purpose of operating the Network, NextG wishes.to locate, place, attach, install, operate, control, and maintain Equipment in the Public Way (as defined in § 1.11 below) on facilities owned by the County, as well as on facilities owned by third parties therein. Agreement Now, therefore, 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 shall apply generally to the provisions of this Use Agreement: 1.1 County. "County"means the County of Contra Costa. 1.2 Decorative Streetlight Pole. "Decorative Streetlight Pole" shall mean any streetlight pole that incorporates artistic design elements not typically found in standard steel or aluminum streetlight poles. 1.3 Equipment. "Equipment" means the optical repeaters, DWDM and CWDM multiplexers, antennae, fiber optic cables, wires, and related equipment, whether referred to singly or collectively, to be installed and operated by NextG hereunder. Examples of typical Equipment types and installation configurations are shown in the drawings and photographs attached hereto as Exhibit A and incorporated herein by reference. 1.4 Fee. "Fee" means any assessment, license, charge, fee, imposition, tax, or levy of general application to entities doing business in the County lawfully imposed by any governmental body (but excluding any utility users' tax, franchise fees, communications tax, or similar tax or fee). 1 " RB:krf G:\Public\MFAP\Municipalities\CA\Municipalities\Contra Costa County\RUAfinal clean.doc 5/15/06 1.5 Gross Revenues. "Gross Revenues shall mean and include any and all income and other consideration collected, received, or in any manner gained or derived by NextG from or in connection with, the provision of Services, either directly by NextG or indirectly through a reseller, if any, to customers of such services within the County of Contra Costa, including any imputed revenue derived from commercial trades and barters equivalent to the full retail value of goods and services provided by NextG. Gross Revenue shall not include: (a) sales, ad valorem, or other types of"add-on" taxes, levies, or fees calculated by gross receipts or gross revenues which might have to be paid to or collected for federal, state, or local government (exclusive of the Municipal Facilitie's Annual Fee paid to the County provided herein); (b) retail discounts or other promotions; (c) non-collectable amounts due NextG or its customers; (d) refunds or rebates; and (e) non-operating revenues such as interest income or gain from the sale of an asset. 1.6 Installation Date. "Installation Date" shall mean the date that the first Equipment is installed by NextG pursuant to this Use Agreement. 1.7 Laws. "Laws" means any and all statutes, constitutions, ordinances, resolutions, regulations, judicial decisions, rules, tariffs, administrative orders, certificates, orders, or other requirements of,the County or other governmental agency having joint or several jurisdiction over the parties to this Use Agreement. 1.8 Municipal Facilities. "Municipal Facilities" means County-owned Streetlight Poles, Decorative Streetlight Poles, lighting fixtures, electroliers, or other similar County-owned structures located within the Public Way and may refer to such facilities in the singular or plural, as appropriate to the context in which used. 1.9 Network. "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 County. 1.10 NextG. "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. 1.11 Public Way. "Public Way"means the space in, upon, above, along, across, and over the public streets, roads, highways, lanes, courts, ways, alleys, boulevards, sidewalks and bicycle lanes, including all public utility easements and public service easements as the same now or may hereafter exist, that are under the jurisdiction of the County. This term shall not include county, state, or federal rights of way or any property owned by any person or entity other than the County, except as provided by applicable Laws or pursuant to an agreement between the County and any such person or entity. 1.12 CPUC. " CPUC"means the California Public Utilities Commission. 1.13 Services. "Services" means the RF transport telecommunications services provided through the Network by NextG to its customers. 1.14 Streetlight Pole. "Streetlight Pole" shall mean any standard-design concrete, fiberglass, metal, or wooden pole used for street lighting purposes. .2 RB:krf G:\Public\MFAP\Municipalities\CA\Municipalities\Contra Costa County\RUAfinal clean.doc 5/15/06 2. TERM. This Use Agreement shall be effective as of the Effective Date and shall extend for a term of ten (10) years, commencing on the Effective Date, and ending on the day before the eleventh(11`h) anniversary of the Effective Date (the "Expiration Date"), unless it is earlier terminated by either party in accordance with the provisions herein. In no event will the term of this Agreement extend beyond the Expiration Date just described. 3. SCOPE OF USE AGREEMENT. Any and all rights expressly granted to NextG under this Use Agreement, which shall be exercised at NextG's sole cost and expense, shall be subject to the prior and continuing right of the County under applicable Laws to use any and all parts of the Public Way exclusively or concurrently with any other person or entity and shall be further subject to all deeds, easements, dedications, conditions, covenants, restrictions, encumbrances, and claims of title of record which may affect the Public Way. Nothing in this Use Agreement shall be deemed to grant, convey, create, or vest in NextG a real property interest in land, including any fee, leasehold interest, or easement. Any work performed pursuant to the rights granted under this Use Agreement shall be subject to the reasonable prior review and approval of the County. 3.1 Attachment to Municipal Facilities. Subject to section 5.1 and the other terms and conditions of this Use Agreement, the County hereby authorizes and permits NextG to enter upon the Public Way and to locate, place, attach, install, operate, maintain, control, remove, reattach, reinstall, relocate, and replace Equipment in or on Municipal Facilities for the sole purpose of operating the Network and providing Services and for no other purposes unless agreed to in writing. In addition, subject to the provisions of§ 4 below,NextG shall have the right to draw electricity for the operation of the Equipment from the power source associated with each such attachment to Municipal Facilities. 3.2 Attachment to Third-Party Property. Subject to this Agreement and to obtaining the permission of the owner(s) of the affected property, the County hereby authorizes and permits NextG to enter upon the Public Way and to attach, install, operate, maintain, remove, reattach, reinstall, relocate, and replace such number of Equipment in or on poles or other structures owned by public utility companies or other property owners located within the Public Way as may be permitted by the public utility company or property owner, as the case may be. Upon request, NextG shall furnish to the County documentation of such permission from the individual utility or property owner responsible. 3.3 Preference for Municipal Facilities. In any situation where NextG has a choice of attaching its Equipment to either Municipal Facilities or third-party-owned property in the Public Way, NextG agrees to attach to the Municipal Facilities, provided that (i) such Municipal Facilities are at least equally suitable functionally for the operation of the Network and (ii) the rental fee and installation costs associated with such 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 RB:krf G:\Public\MFAP\Municipalities\CA\Municipalibes\Contra Costa County\RUAfinal dean.doc 5/15/06 3.4 No Interference. NextG in the performance and exercise of its rights and obligations under this Use Agreement shall not interfere in any manner with the existence and operation of any and all public and private rights of way, sanitary sewers, water mains, storm drains, gas mains, poles, aerial and underground electrical and telephone wires, electroliers, cable television, and other telecommunications, utility, or municipal property, without the express written approval of the owner or owners of the affected property or properties, except as permitted by applicable Laws or this Use Agreement. .3.5 Compliance with Laws.NextG shall comply with all applicable Laws in the exercise and performance of its rights and obligations under this Use Agreement. 4. COMPENSATION; UTILITY CHARGES. NextG shall be solely responsible for the payment of all lawful Fees in connection with NextG's performance under this Use Agreement, including those set forth below. 4.1 Annual Fee. In order to compensate County for NextG's entry upon and deployment within the Public Way and as compensation for the use of Municipal Facilities, NextG shall pay to the County a annual fee (collectively the " Annual Fee") in exchange for the use of Municipal Facilities as follows: (i) a fee (the "Pole Fee") in the amount of Three Hundred Dollars (($300.00) for the use of each County-owned Streetlight Pole and in the amount of Five Hundred Dollars ($500.00) for any Decorative Pole or traffic- signal pole , if any, upon which NextG's Equipment has been installed pursuant to this Use Agreement; The aggregate Annual Fee with respect to each year of the term shall be an amount equal to the number of Equipment installations installed on Municipal Facilities during the preceding twelve (12) months multiplied by the annual Pole Fee, prorated as appropriate. The Annual Fee shall be due and payable not later.than forty-five (45) days after each anniversary of the Installation Date. County represents and covenants that County owns all Municipal Facilities for the use of which it is collecting from NextG the Annual Fee pursuant to this § 4.1. 4.1.2 CPI Adjustment. Effective commencing on the first (I") anniversary of the Installation Date and continuing on each annual anniversary thereafter during the term, the Annual Fee shall 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)which occurred during the previous year period for the San Francisco-Oakland-San Jose Consolidated Metropolitan Statistical Area. 4.2 Right-of-Way Use Fee. In order to compensate the County for NextG's entry upon and deployment of Equipment within the Public Way, NextG shall pay to the County, on an annual basis, an amount equal to five percent (5%) of Gross Revenues (the "Right-of-Way Fee") payable within thirty (30) days of the Effective Date and on each anniversary thereafter. The Right-of-Way Fee shall be payable for the period commencing with the Effective Date and ending on the date of termination of this Use Agreement. NextG shall make any payment of the Right-of-Way Fee that may be due and owing within forty-five 4 RB:krf G:\Public\MFAP\Municipalities\CA\Municipalities\Contra Costa County\RUAfinal clean.doc 5/15/06 (45) days after the first anniversary of the Effective Date and within the same period after each subsequent anniversary of the Effective Date. Within forty-five (45) days after the termination of this Use Agreement, the Right-of-Way Fee shall be paid for the period elapsing since the end of the last calendar year for which the Right-of-Way Fee has been paid. NextG shall furnish to the County with each payment of the Right-of-Way Fee a statement, executed by an authorized officer of NextG or his or her designee, showing the amount of Adjusted Gross Revenues for the period covered by the payment. If NextG discovers any error in the amount of compensation due, the County shall be paid within thirty (30) days of discovery of the error or determination of the correct amount. Any overpayment to the County through error or otherwise shall be refunded or offset against the next payment due. Acceptance by the County of any payment of the Right-of-Way Fee shall not be deemed to be a waiver by the County of any breach of this Use Agreement occurring prior thereto, nor shall the acceptance by the County of any such payments preclude the County from later establishing that a larger amount was actually due or from collecting any balance due to the County. 4.3 Accounting Matters. NextG shall keep accurate books of account at its principal office in Milpitas or such other location of its choosing for the purpose of determining the amounts due to the County under §§ 4.1 and 4.2 above. The County may inspect NextG's books of account relative to the County at any time during regular business hours on thirty (30).days' prior written notice and may audit the books from time to time at the County's sole expense, but in each case only to the extent necessary to confirm the accuracy of payments due under § 4.1 above. The County agrees to hold in confidence any non-public information it learns from NextG to the fullest extent permitted by Law. If NextG fails to make any payment hereunder when due and payable, NextG shall pay a late payment charge of five percent(5%) of the unpaid balance, which shall also incur interest at a rate of 1% per month until paid in full. 4.4 Services to County. NextG agrees that at all times during the term of this Use Agreement it shall reserve one (1) wavelength of capacity in the fiber owned or operated by NextG in the County for the County's exclusive use in operating a noncommercial, County- owned Wi-Fi network or for any other noncommercial, County-operated data network or communications function. 4.5 Electricity Charges. NextG shall be solely responsible for the payment of all electrical utility charges to the applicable utility company based upon the Equipment' usage of electricity and applicable tariffs. NextG shall not use any electricity for facilities within the Public Way unless it first enters into an agreement with the applicable utility company for the provision of that electricity. Such electricity shall be provided at no cost to County and without interfering with the County's use of its facilities. The agreement with or acknowledgement from the applicable utility company shall include an acknowledgment by that utility company that effectively states that the utility company will not hold the County liable for any charges, costs or damages relating to NextG's use of electricity or the Municipal Facilities. NextG shall provide County with a copy'of the agreement evidencing compliance with the foregoing prior to installing any equipment on a Municipal Facility. 5 RB:krf G:\Public\MFAP\Municipalities\CA\Municipalities\Contra Costa County\RUAfinal clean.doc 5/15/06 5. CONSTRUCTION. NextG shall comply with all applicable federal, State, and County technical specifications and requirements,and all applicable State and local codes related to the construction, installation, operation, maintenance, and control of NextG's Equipment installed in the Public Way and on Municipal Facilities in the County. NextG shall not attach, install, maintain, or operate any Equipment in or on the Public Way and/or on Municipal Facilities without the prior written approval of the County for each location. 5.1 .Obtaining Required Permits. If the attachment, installation, operation,maintenance, or location of the Equipment in the Public Way shall require any permits or other approvals under applicable County ordinances, NextG shall, if required, apply for the permits or other approvals and pay the associated standard and customary fees for such permits or other approvals. County shall promptly respond to NextG's requests for.permits or other approvals and shall otherwise cooperate with NextG in facilitating the deployment of the Network in the Public Way in a reasonable and timely manner. The County shall retain reasonable complete discretion to approve, conditionally approve or deny any permit or other approval in accordance with the terms of this agreement. 5.2 Location of Equipment. The proposed locations of NextG's planned initial installation of Equipment shall be provided to the County promptly after NextG's review of available street light maps and prior to deployment of the Equipment. Prior to installation of the Equipment in the Public Way or upon any Municipal Facility, NextG shall obtain written approval for such installation in the Public Way or upon such Municipal Facility from the County. The County may approve or disapprove a location and installation, based upon reasonable regulatory factors,.including but not limited to, the location of other present or future communication facilities, efficient use of scare physical space to avoid premature exhaustion, interference with other communication facilities and services, the public safety and other critical services; provided however, that approval shall not be unreasonably conditioned, delayed or withheld. Upon the completion of installation,NextG promptly shall furnish to the County a pole list showing the exact location of the Equipment in the Public Way. 5.3 Relocation and Displacement of Equipment. NextG understands and acknowledges that County may require NextG to relocate one or more of its Equipment installations. NextG shall at County's direction relocate such Equipment at NextG's sole cost and expense, whenever County reasonably determines that the relocation is needed for any of the following purposes: (a) if required for the construction, completion, repair, relocation, or maintenance of a County project; (b) because the Equipment is interfering with or adversely affecting proper operation of County-owned light poles, traffic signals, or other Municipal Facilities; or (c) to protect or preserve the public health or safety. In any such case, County shall use its best efforts to afford NextG a reasonably equivalent alternate location. If NextG shall fail to relocate any Equipment as requested by the County within a reasonable time under the circumstances in accordance with the foregoing provision, County.shall be entitled to relocate the Equipment at NextG's sole cost and expense, without further notice to NextG. To the extent the County has actual knowledge thereof, the County will attempt promptly to inform NextG of the displacement or removal of any pole on which any Equipment is located. 6 RB:krf G:\Public\MFAP\Municipalities\CA\Municipalities\Contra Costa County\RUAfinal clean.doc 5/15/06 5.4 Relocations at NextG's Request. In the event NextG desires to relocate any Equipment from one Municipal Facility to another, NextG shall so advise County. County will use its best efforts to accommodate NextG by making another reasonably equivalent Municipal Facility available for use in accordance with and subject to the terms and conditions of this Use Agreement. 5.5 Damage to Public .Way. Whenever the installation, removal or relocation of Equipment is required or permitted under this Use Agreement, and such installation, removal or relocation shall cause the Public Way to be damaged, NextG, at its sole cost and expense, shall promptly repair and return the Public Way in which the Equipment are located to a safe and satisfactory condition in accordance with applicable Laws, normal wear and tear excepted. If NextG does not repair the site as just described, then the County shall have the option, upon fifteen (15) days' prior written notice to NextG, to perform or cause to be performed such reasonable and necessary work on behalf of NextG and to charge NextG for the proposed costs to be incurred or the actual costs incurred by the County at County's standard rates. Upon the receipt of a demand for payment by the County, NextG shall promptly reimburse the County for such costs. 5.6 Relocations at NextG's Request. In the event NextG desires to relocate any Equipment from one Municipal Facility to another, NextG shall so advise County. County will use its best efforts to accommodate NextG by making another reasonably equivalent Municipal Facility available for use in accordance with and subject to the terms and conditions of this Use Agreement. 5.7 Damage to Public Way. Whenever the removal or relocation of Equipment is required or permitted under this Use Agreement, and such removal or relocation shall cause the Public Rights-of-Way to be damaged,NextG, at its sole cost and expense, shall promptly. repair and return the Public Rights-of-Way in which the Equipment are located to a safe and satisfactory condition in accordance with applicable Laws, normal wear and tear excepted. If NextG does not repair the site as just described, then the County shall have the option, upon fifteen (15) days' prior written notice to NextG, to perform or cause to be performed such reasonable and necessary work on behalf of NextG and to charge NextG for the proposed costs to be incurred or the actual costs incurred by the County at County's standard rates. Upon the receipt of a demand for payment by the County, NextG shall promptly reimburse the County for such costs. The terms of this provision shall survive the expiration, completion or earlier termination of this Use Agreement. 5.8 Change in Equipment. If NextG proposes to install Equipment which is different in any material way from the specifications attached hereto as Exhibit A, then NextG shall first obtain the approval for the use and installation of the equipment from the County of Contra Costa. In addition to any other submittal requirements, NextG shall provide "load" calculations for all Streetlight Poles it intends to install in the Public Rights-of-Way, notwithstanding original installation or by way of equipment type changes. The County may approve or disapprove of the use of the different equipment from the specifications set forth in Exhibit A, pursuant to the factors enumerated in 5.2 above, and such approval shall not be unreasonably withheld. 7 RB:krt G:1Public\MFAP1Municipalities\CA\Municipalities\Contra Costa County\RUAfinal clean.doc 5/15/06 5.9 Removal of Equipment. Upon sixty (60) days' written notice by the County pursuant to the expiration or earlier termination of this Use Agreement for cause, NextG shall promptly, safely and carefully remove the Equipment from all Municipal Facilities and Public Rights-of-Way. Such obligation of NextG shall survive the expiration or earlier termination of this Use Agreement. If NextG fails to complete this removal work on or before the sixty (60) days subsequent to the issuance of notice pursuant to this Section, then the County, upon written notice to NextG, shall have the right at the County's sole election, but not the obligation; to perform this removal work and charge NextG for the actual costs and expenses, including, without limitation, reasonable administrative costs. NextG shall pay to the County actual costs and expenses incurred by the County in performing any removal work and any storage of NextG's property after removal within ten (10) business days of the date of a written demand for this payment from the County. After the County receives the reimbursement payment from NextG for the removal work performed by the County, the County shall promptly return to NextG the property belonging to NextG and removed by the County pursuant to this Section at no liability to the County. If the County does not receive reimbursement payment from NextG within such ten (10) business days, or if County does not elect to remove such items at the County's cost after NextG's failure to so remove prior to sixty (60) days subsequent to the issuance of notice pursuant to this Section, any items of NextG's property remaining on or about the Public Rights-of-Way, Municipal Facilities, or stored by the County after the County's removal thereof may, at the County's option, be deemed abandoned and the County may dispose of such property in any )manner by Law. Alternatively, the County may elect to take title to abandoned property, provided that NextG shall submit to the County an instrument satisfactory to the County transferring to the County the ownership of such property. The provisions of this Section shall survive the expiration or earlier termination of this Use Agreement. 5.10 Risk of Loss. NextG acknowledges and agrees that NextG bears all risks of loss or damage of its Equipment and materials installed in the Public Rights-of-Way .or on Municipal Facilities pursuant to this Use Agreement from any cause, and the County shall not be liable for any cost of repair to damaged Equipment, including, without limitation, damage caused by the County's removal of the Equipment, except to the extent that such loss or damage was solely caused by the willful misconduct or negligence of the County, including, without limitation, each of its elected officials, department directors, managers, officers, agents,employees, and contractors, subject to the limitation of liability provided in § 6.2 below. 6. INDEMNIFICATION AND WAIVER. NextG agrees to indemnify, defend, protect, and hold harmless the County, officers, employees, agents and volunteers from and against any and all claims, demands, losses, damages, liabilities, fines, charges, penalties, administrative and judicial proceedings and orders, judgments, and all costs and expenses incurred in connection . therewith, including reasonable attorney's fees and costs of defense (collectively, the "Losses") arising from NextG's activities undertaken pursuant to this Use Agreement, except to the extent arising from or caused by the sole negligence or willful misconduct of the County, its officers, employees, agents, or contractors. 6.1 Waiver of Claims. NextG waives any and all claims, demands, causes of action, and rights it may assert against the County on account of any loss, damage, or injury to any 8 RB:krf G:\Public\MFAP\Municipalities\CA\Municipalities\Contra Costa County\RUAfinal clean.doc 5/15/06 Equipment or any loss or degradation of the Services as a result of any event or occurrence which is beyond the reasonable control of the County. 6.2 Limitation of County's Liability. The County shall be liable only for the cost of repair to damaged Equipment arising from the sole negligence or willful misconduct of County, its employees, agents, or contractors and shall in no event be liable for indirect or consequential damages. County's total liability, with respect to NextG's Equipment, under this Use Agreement shall be limited to the Annual Fees paid by NextG to the County in the year under which such liability arises. 7. SECURITY AND BOND. In order to secure its performance of its obligations under this Use Agreement, NextG agrees to provide for the following security instruments to the County: 7.1 Construction Period Performance Bond. Prior to the commencement of any work under this Use Agreement, NextG shall provide a construction performance bond running to the County, substantially in the form attached hereto at Exhibit B, in the penal sum of Two Thousand Five Dollars ($2,500.00) for each Municipal Facility upon which Equipment is to be installed pursuant to § 5 this Use Agreement (the "Construction Bond"), conditioned upon the faithful performance of NextG of all the terms and conditions of this Use Agreement and upon the further condition that, in the event that NextG shall fail to comply with any law, ordinance, rule, or regulation governing this Use Agreement, there shall be recoverable jointly and severally from the principal and surety of the bond any damage or loss suffered by the County as a result, including the full amount of any compensation, indemnification, or costs of removal or abandonment of property of NextG, plus costs and reasonable attorney's fees up to the full amount of the Construction Bond. The County may require NextG to increase the amount of the Construction Bond if the County concludes that it is necessary to do so based upon the amount of construction in the Public Rights-of-Way being performed by NextG, or based upon the harm being caused by NextG to Public Rights-of-Way or Municipal Facilities. NextG agrees to keep the Construction Bond in place until the County has signed off on completion of the Network construction permitted by § 5 and until the Construction Bond has been replaced by a Performance Bond. 7.2 Security Deposit. Prior to installing any Equipment within the Public Way, NextG shall deposit with the County cash or an irrevocable letter of credit in a form acceptable to the County in the amount of TEN THOUSAND DOLLARS ($10,000) to ensure the faithful performance of NextG of all of the terms and conditions of this Agreement, including but not limited to the obligation to remove all Equipment from the Public Way upon the abandonment of such Equipment, and to ensure compliance with any law or regulation governing NextG's activities pursuant to this Agreement. In the event of any such violation, County may recover any of its costs and damages from the cash deposit or letter of credit. 9 RB:krf G:\Public\MFAP\Municipalities\CA\Municipalities\Contra Costa County\RUAfinal clean.doc 5/15/06 7.3 Required Endorsement. The bonds shall be subject to the approval of the County Attorney and shall contain the following endorsement: ".It is hereby understood and agreed that the performance bond may not.be canceled until sixty (60) days after receipt by the Public Works Director, by registered mail, return receipt requested, of a written notice of intent to cancel or not to renew." 7.4 Reservation of County Rights. The rights reserved by the County with respect to the bonds herein are in addition to all other rights and remedies the County may have under this Use Agreement or any other law. .8. INSURANCE. NextG shall procure and maintain at its sole cost for the duration of this agreement the following insurance: (a)Minimum Scope of Insurance. Coverage shall be at least as broad as: (1) Insurance Services Office Commercial General Liability coverage ("occurrence" form CG 0001). (2) Insurance Services Office form number CA 0001 covering Automobile Liability, code 1 (any auto). (3) Workers' Compensation insurance as required by the Labor Code of the State of California and Employers Liability insurance. (b) Minimum Limits of Insurance. NextG shall maintain policy limits of no less than: (1) General Liability:.$1,000,000 combined single limit per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability Insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit. (2) Automobile Liability: $1,000,000 combined single limit per accident for bodily injury and property damage. (3) Worker's Compensation and Employers Liability: Worker's Compensation limits as required by the Labor Code and Employers Liability limits of$1,000,000 per accident. (c) Deductibles and Self-Insured Retention. Any deductibles or self-insured retention must be declared to and approved by the County. At the option of the County, either: the insurer shall reduce or eliminate such deductibles or self-insured retention as respects the County, its officers, officials, employees and volunteers; or NextG shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses. _ 10 RB:krf G:\Public\MFAP\Municipalities\CA\Municipalities\Contra Costa County\RUAfinal clean.doc 5/15/06 (d) Other Insurance Provisions. The policies shall contain, or be endorsed to contain, the following provisions: (1)General Liability and Automobile Liability Coverage. a. The County, its officers, officials, employees, agents and volunteers are to be covered as insured as respects: liability arising out of activities performed by or on behalf of NextG; products and . completed operations of NextG; premises owned, occupied or used by NextG; or automobiles hired or borrowed by NextG. The coverage shall contain no special limitations on the scope of protection afforded to the County, its officers, officials, employees, agents or volunteers. b. NextG's insurance coverage shall be primary insurance as respects the County, its officers, officials, employees and volunteers. Any insurance or self-insurance maintained by the County, its officers,' officials, employees, agents or volunteers shall be excess of NextG's insurance and shall not contribute with it. c. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to the County, its officers, officials, employees, agents or volunteers. d. NextG's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. (2) Worker's Compensation and Employers Liability Coverage. The insurer shall agree to waive all rights of subrogation against the County, its officers, officials, employees and volunteers for losses arising from work performed by NextG for the County. (3)All Coverages. Each insurance policy required by this clause shall be endorsed to state that coverage shall not be canceled by either party except after thirty(30) days'prior written notice by mail has been given to the County. Right-of-Way Use Agreement County of Contra Costa: NextG Networks, Inc. page 11 of 14 ruav5 [09mas 1 5row99ua2] 4/8/2005 5:07 PM (e) Acceptability of Insurers. Insurance is to be placed with insurers with a Best's rating of no less than A: VII. (f) Verification of Coverage. NextG shall furnish the County with certificates of insurance and with original endorsements effecting coverage required by this clause. 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 County before work commences. The County reserves the. right to require complete certified copies of all required insurance policies, at any time. 11 RB:krf G:\Public\MFAP\Municipalities\CA\Municipalities\Contra Costa County\RUAfinal clean.doc 5/15/06 9. COUNTY'S PROCESSING FEES. In the event that NextG requires or requests County's review, investigation, processing, recordation, or other consideration, ("County Review) of any of NextG's documentation, including but not limited to a proposed transfer or assignment, NextG agrees that, as a condition precedent to the County's Review of such matters, NextG will pay to County the sum of One Thousand and No/100 Dollars ($1,000) ("Processing Fee") per such request or requirement. Such payment is deemed to be County's initial administrative cost and expense, including. labor, in processing and investigating NextG's request. NextG hereby agrees to pay County additional payments ("Additional Payments") in the event that, in the County's sole discretion, the cost of County's Review will exceed the amount of the initial Processing Fee. In the event either the Processing Fee or any of the Additional Payments are not received by County within five days after County's written notification to NextG, then County shall halt all work on NextG's request until said payment is received by County. The dollar amounts of the Processing Fee and the Additional Payments described above shall be adjusted every year during the lease term by adding Fifty and No/100 Dollars ($50.00) to the previously adjusted figure in effect at that time. 10. NOTICES. All notices which shall or may be given pursuant to this Use Agreement shall 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 bard copy of the same is followed by delivery through the U. S. mail or by overnight delivery service as just described, addressed as follows: if to the County: CONTRA COSTA COUNTY Public Works Department 255 Glacier Drive Martinez, CA 94553 Attn. Principal Real Property Agent NEXTG NETWORKS, INC. Attn: Contracts Administration 2216 O'Toole Avenue San Jose, CA 95131 10.1 Date of Notices; Changing Notice Address. Notices shall be deemed given upon receipt in the case of personal delivery, three (3) days after deposit in the mail, or the next business day in the case of facsimile, email, or overnight delivery. Either party may from time to time designate any other address for this purpose by written notice to the other party delivered in the manner set forth above. 11. TERMINATION. This Use Agreement may be terminated by either party upon forty five (45) days' prior written notice to the other party upon a default of any material covenant or 12 RB:krf G:\Public\MFAP\Municipalities\CA\Municipalities\Contra Costa County\RUAfinal clean.doc 5/15M term hereof by the other party, which default is not cured within forty-five (45) days of receipt of written notice of default (or, if such default is not curable within forty-five (45) days, if the defaulting party fails to commence such cure within forty-five (45) days or fails thereafter diligently to prosecute such cure to completion), provided that the grace period for any monetary default shall be ten (10) days from receipt of notice. Except as expressly provided herein, the rights granted under this Use Agreement are irrevocable during the term. 12. ASSIGNMENT. This Use Agreement shall riot be assigned by NextG without the express written consent of the County, which consent shall not be unreasonably withheld, conditioned, or delayed. Notwithstanding the foregoing, the transfer,of the rights and obligations of NextG to a parent, subsidiary, or other affiliate of NextG or to any successor in interest or entity acquiring fifty-one percent (51%) or more of NextG's stock or assets (collectively "Exempted Transfers") shall not be deemed an assignment for the purposes of this Agreement and therefore shall not require the consent of the County, provided that NextG reasonably demonstrates to the County's lawfully empowered designee the following criteria (collectively the "Exempted Transfer Criteria"): (i) such transferee will have a financial strength after the proposed transfer at least equal to that of NextG immediately prior to the transfer; (ii) any such transferee assumes all of NextG's obligations hereunder; and (iii)•the experience and technical qualifications of the proposed transferee, either alone or together with NextG's management team, in the provision of telecommunications or similar services, evidences an ability to operate the NextG Network. NextG shall give at least thirty(30) days' prior written notice.(the "Exempted Transfer Notice") to the County of any such proposed Exempted Transfer'and shall set forth with specificity in such Exempted Transfer Notice the reasons why NextG believes the Exempted Transfer Criteria have been satisfied. The County shall have a period of thirty (30) days (the "Exempted Transfer Evaluation Period") from the date that NextG gives the County its Exempted Transfer Notice to object in writing to the adequacy of the evidence contained therein. Notwithstanding the foregoing, the .Exempted Transfer Evaluation Period shall not be deemed to have commenced until the County has received from NextG any and all additional information the County may reasonably require in connection with its evaluation of the Exempted Transfer Criteria as set forth in the Exempted Transfer Notice, so long as the County gives NextG notice in writing of the additional information the County requires within thirty (30) days after the County's receipt of the original Exempted Transfer Notice. If the County fails to act upon NextG's Exempted Transfer Notice within the Exempted Transfer Evaluation Period (as the same may be extended in accordance with the foregoing provisions), such failure shall be deemed an affirmation by the County Council that NextG has in fact established compliance with the. Exempted Transfer Criteria to the County's satisfaction. 13. MISCELLANEOUS PROVISIONS.. The provisions which follow shall apply generally to the obligations of the parties under this Use Agreement. 13.1 Nonexclusive Use. NextG understands that this Use Agreement does not provide NextG with exclusive use of the Public Way or any Municipal Facility and that County shall have the right to permit other providers of communications services to install equipment or devices in the Public Way and' on Municipal Facilities. County agrees promptly to notify NextG of.the receipt of a proposal for the installation of communications equipment or 13 RB:krf G:\Public\MFAP\MunicipalitiesiCA\Municipalifies\Contra Costa CountylRUAfinal clean.doc 5/15/06 devices in the Public Way or on Municipal Facilities that reasonably appears to impact any _7___ Equipment..In_addition,County-agrees-to.advise_other providers of communications_services__ of the presence or planned deployment of the Equipment in the Public .Way and/or on Municipal Facilities. 13.2 Waiver of Breach. The waiver by either party of any breach or violation of any provision of this Use Agreement shall 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 Use Agreement. 13.3 Severability of Provisions. The remaining provisions of this Use Agreement and shall not affect the legality, validity, or constitutionality of the remaining portions of this Use Agreement. Each party hereby declares that it would _have entered into this Use Agreement and each provision hereof regardless of whether anyone or more provisions may be declared illegal, invalid, or unconstitutional. 13.4 Contacting NextG. NextG shall be available to the staff employees of any County department having jurisdiction over NextG's activities twenty-four (24) hours a day, seven (7) days a week, regarding problems or complaints resulting from the attachment, installation, operation, maintenance, or removal of the Equipment. The County may contact by telephone the network control center operator at telephone number 1-866-44-NEXTG (446-3984)regarding such problems or complaints. 13.5 Governing Law; Jurisdiction. This Use Agreement shall 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 Use Agreement, the parties agree that trial of such action shall be vested exclusively in the state courts of California, County of Contra Costa, or in the United States District Court for the Northern District of California. 13.6 Attorneys' Fees. Should any dispute arising out. of this Use Agreement lead to litigation, the prevailing party shall 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 one party hereto is required, requested or otherwise to be given under this Use Agreement, such party shall not unreasonably delay, condition, or withhold its approval or consent. 13.8 Representations and Warranties. Each of the parties to this Agreement represents and warrants that it has the full right, power, legal capacity, and authority to enter into and perform the parties' respective obligations hereunder and that such obligations shall be binding upon such party without the requirement of the approval or consent of any other person or entity in connection herewith, except as provided in §4.2 0 above. 13.9 Amendment of Use Agreement. This Use Agreement may not be amended except pursuant to a written instrument signed by both parties. 14 RB:kn` G:\Public\MFAP\Municipalities\CA\Municipalities\C.ontra Costa County\RUAfinal clean.doc 5/15/06 13.10 Entire Agreement. This Use Agreement contains the entire understanding -between-the parties .with respect-to-the subject matter herein. There areno representations,_. agreements, or understandings (whether oral or written) between or among the parties relating to the subject matter of this Use Agreement which are not fully expressed herein. In witness whereof, and in order to bind themselves legally to the terms and conditions of this Use Agreement, the duly authorized representatives of the parties have executed this Use Agreement as of the Effective Date.. CONTRA COSTA COUNTY, apolitical subdivision of the State of California By: Date: /3 ae,0-049 C a' ,Board of Supervisors I hereby approve the form and legality of the foregoing Use Agreement this 4day of , 2006. County Counsel By Lillian Fujii, Deputy County Counsel NEXTG NETWORKS INC., a Delaware corporation dba NextG Networks West i By: �hhn B. /George , EO Date: ( �� By: Dater 15 RB:krf G:\Public\MFAP\Municipalities\CA\Municipalities\Contra Costa County\RUAfinal dean.doc 5/15/06 Exhibits: - ---_ Exhibit A--- Equipment..--- Exhibit —Equipment..---Exhibit B- Sample Construction Performance Bond 16 RB:krf G:\Public\MFAP\Municipalities\CA\Municipalities\Contra Costa County\RUAfinal clean.doc 5/15/06 y Q ITHTII III III 1 w M o vUi >o # m �F z w o', s UI LH yy ff O c i6 w G� Z a.. N a= o O a a iz�' Q V7 w C zp T-z w a w JaNO Z 0 z �o�a+w- n ; d Ow°'wp a S 0 O Z UVZaa wLLI F 0 zwam�w iDo z 5c oa6za t: o � z a Q N Waav� f ma 00 �`� z �� Z arra w q IDN LL4 .►� O�Z W J z f !1 x O Z C Z �aL) ZZ n ti ~ c X w,\_ r¢ n U- X au- W n.. a mLL Y- Zr: Nn m W(D00 - . 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Z Z 0 F- N LU Lu v O O W mmm o Ll Q 0 m x J z Y O COt F F O �rz z_ ui m U (7 w o z D Zuj XUx w m Z N LJ xT tr w X W U a a Z r 0 y„ O �t 0 r Z Z x�xw ao � U N O zWz I i LO 0 C) a U m W Q X Z a W W Z � (D X z � W iv O r- 0- Exhibit B SAMPLE PERFORMANCE BOND—PUBLIC WORK Bond No. Premium Any claim under this Bond should be sent to the following address: KNOW ALL BY THESE PRESENTS: That we, ,as Principal,and ,a corporation organized and existing under the laws of the State of and authorized to transact surety business in the State of California,as Surety, are held and firmly bound unto ,as Obligee,in the sum of Dollars($ ) lawful money of the United States of America,for the payment of which sum well and truly to be made,we bind ourselves,our heirs, executors,administrators, successors and assigns,jointly and severally, firmly by these presents. THE CONDITION of the above obligation is such that,whereas the Principal has entered into a contract dated , with the Obligee to do and perform the following work, to-wit: as is more specifically set forth in the contract documents, reference to which is hereby made. . NOW THEREFORE, if the Principal shall well and truly perform all the requirements of said contract documents required to be performed on its part,at the times and in the manner specified therein,then this obligation shall be null and void, otherwise it shall remain in full force and effect. PROVIDED,that any alterations in the work to be done or the materials to be famished,or changes in the time of completion,which may be made pursuant to the terms of said contract documents,shall not in any way release the Principal or the Surety thereunder,nor shall any extensions of time granted under the provisions of said contract documents release either the Principal or the Surety,and notice of such alterations or extensions of time is hereby waived by the Surety. PROVIDED,that if any action is commenced on this bond by the Obligee,the Principal and the Surety,their heirs, executors,administrators,successors and assigns,jointly and severally,shall be obligated to pay to the Obligee all costs, attorney's fees and other litigation expenses incurred by the Obligee in collecting monies due under the terms of this bond, but the aggregate liability of the Surety hereunder shall not exceed the penal sum of this bond in any event. It is hereby understood and agreed that the Surety reserves the right to withdraw from this bond,except as to any liability incurred or accrued,but only after 60 days written notice is provided to the Public Works Director of Obligee,by registered mail,return receipt requested or otherwise in accordance with Section 10 of the aforementioned contract,of intent to cancel or not to renew,as required by Section 7.3 of the aforementioned contract. SIGNED AND SEALED,this day of (SEAL) (SEAL) (Principal) (Surety) By: (Signature) (Signature) (SEAL AND ACKNOWLEDGMENT OF NOTARY) 17 - — --RB:krf — - —=— — — — — — G:\Public\MFAP\Municipalities\CA\Municipalibes\Contra Costa County\RUAfinal clean.doc 5/15/06