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).
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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.
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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.
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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
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(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.
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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.
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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.
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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
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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.
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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.
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(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.
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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
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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
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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.
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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
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Exhibits:
- ---_ Exhibit A--- Equipment..---
Exhibit
—Equipment..---Exhibit B- Sample Construction Performance Bond
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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
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