SITE LICENSE AGREEMENT
THIS SITE LICENSE AGREEMENT (the "License ") is entered into this day of M"2008 (the "Date of this License "), between the City of Redondo Beach ( " Licensor "), and NextG Net-worksof California, Inc., aDelaware company ( "
Licensee "). 1. Pole &
Premises. Subject to the following terms and conditions, Licensor licenses toLicensee on anon - exclusive basis the use of thestreetlight pole (the "Lightpole ") located at 209 V2 N. Harbor Drive within thejurisdictional limits of the City of Redondo Beach and further described in the attached Exhibit A and for theinstallation of radio and antenna equipment ( "RAEquipment ") provided said RAEquipment occupy nogreater footprint on the Lightpole than as described in the attached Exhibit
A.All parties acknowledge that the Lightpole is located in the public of - right -way and such lighting is used for public safety, and theoperations of Licensee and otherco- locators on theLightpole, if any, shall not disturb orinterfere with theLicensor' slighting equipment and uses of the Lightpole at any time. 2.
Term. a. The initial term ofthis License shall be five (5) years (the "Initial Term "), commencing on the date first writ- ten above ( the "Commencement Date "). No right in the use of theLightpole shall vest inLicensee until the oc-currence of the Commencement Date. The initial term of this License shall expire at midnight on the day before the fifth (5th) anniversary of the Commencement
Date. b. Licensee shall have theright toextend this License for three (3) additional, five -year terms (each beinga " Re-newal Term "). Licensee' s use of the Lightpole during each Renewal Term shall be on the same terms andconditions as set forth herein except that theamount of License Fee shall be as provided in Section 3below.
This License shall automatically renew for each successive Renewal Term unless ( i) Licensee notifies Licensor in writing ofLicensee'sintention not torenew this License at least sixty (60) days prior to theexpiration of the ini-tial term or any Renewal Term or (ii) Licensee is indefault of this License on the last day preceding such Re-newal
Term. c. If Licensee shall remain in use of the Lightpole at the expiration of the initial term of this License or any Re-newal Term without a written agreement, such tenancy shall bedeemed ato - month -month use under the same terms and conditions of this License, except that the License Fee shall be in the amount of 1.50% of theannual License Fees in effect atthe expiration ofthis Agreement, paid pro -rata ona monthly basis.
Nothing contained herein shall grant Licensee the right toholdover after the term ofthis Agreement has expired. 3.
License Fee:a. From and after the occurrence ofthe Commencement Date until the commencement ofa Renewal Term, Licensee shall pay Licensor annually,
in advance: i) The sum ofOne Thousand 1,Dollars (000.00) ( " License Fee "). The License Fee shall increase annually during the Initial Term and any Renewal Term, effective as of each an-niversary ofthe Commencement Date, by an amount equal tothe change inthe Consumer Price Index forAll UrbanConsumers ( CPI - U) in the Angeles- Lo Riverside - Orange County Consolidated Metropolitan Statistical Area, not to exceed six percent (6 %) per annum above the amount ofthe License Fee ineffect immediately prior to such increase. The License Fee shall be payable annually in advance without offset or deduction, except as provided herein, at Licensor' s address specified below, or to any other person or firm that Licensor may, from time totime, designate in writing at least sixty (60) days in advance of any License Fee payment date. If, at any time, Licensee fails to make timely payment within 10 dates of when due, interest shall accrue on the past due amount at the rate of 18% per annum orthe maximum allowable by law, whichever is less, until paid in full. All sums payable by Licensee under this License, whether or not stated to be license feesor additional license
fees,4-
shall be collectible by Licensor as license fees, and upon default in payment thereof Licensor shall have the same rights and remedies as for failure to pay license fees (without prejudice to any other right or remedy available therefor). This right is in addition to all rights of Licensor to terminate this License pursuant to Section 11 herein. b. Licensee shall have the right to use a direct deposit system with regard to License Fee payments. Licensor agrees to cooperate with Licensee in providing requisite information to Licensee for such direct deposit. The implementation ofthe direct deposit system shall be at Licensee'sexpense. c. Should Licensee after the parties' execution and delivery of this License enter into an attachment agreement with another municipality of equal or smaller size in Los Angeles County, which agreement contains annual fees for such municipality which, taken as a whole and balanced with the other terms of such agreement, are substantially superior to those in this License, Licensor shall have the right to require that Licensee modify this License to incorporate the same or substantially similar benefits and such other terms and burdens by substitution, mutais mutandis, of such other agreement or otherwise.
4. Permitted Use.
a. The Lightpole may be used for (i) the transmission and reception of communication signals within or utilizing the Advanced Wireless Services frequency bands provided that such frequency or frequencies is within those for which Licensee, or any entity which controls, is controlled by or is under common control with Licensee, or any client/customer of Licensee is duly licensed by the Federal Communications Commission; (ii) the construction, alteration, maintenance, repair, replacement and relocation of antennas, equipment, cables and facilities and improvements related thereto; and (iii) activities related to the foregoing, provided such activities do not require an expansion of the Lightpole or violate Licensee's duties of non - interference set forth herein (collectively, "Licensee's Permitted Use ").
All parties acknowledge that Licensee is a certificate holder of a Certificate of Public Need and Convenience authorized by the California Public Utilities Commission. It is further acknowledged by all parties that such certificate authorizes Licensee to provide limited facilities -based and resold interexchange telecommunications services as a nondominant interexchange carrier (NDIEC) and limited facilities -based and resold exchange services as a competitive local carrier (CLC). Based on the above, Licensee's status is distinguishable from that of a wireless carrier and on that basis, the terms of this License reflect that distinction. o
5. Business License.
Licensee shall obtain a Redondo Beach Business License before performing any services permitted by this Agreement. The failure to obtain such business license shall be a material breach of this Agreement and grounds for immediate termination by Licensor.
6. Interference.
a. Licensee shall operate the RA Equipment on the Lightpole in a manner that will not cause interference with the use or enjoyment of the Lightpole by Licensor and other lessees or licensees in and /or on the Lightpole as of the date of this Agreement ( "Existing Licensees "), or with other public uses of the Lightpole All operations of Licensee shall be lawful and in compliance with all Governmental Requirements ( as hereafter defined), including but not limited to those of the Federal Communications Commission ( "FCC "), the Federal Aviation Administration ( "FAA ") and California Public Utilities Commission ( "PUC "). " Governmental Requirements" shall mean all requirements under any federal, state or local statutes, rules, regulations, ordinances, or other requirements of any duly constituted public authority having jurisdiction over the Lightpole. Licensee shall indemnify Licensor and hold it harmless from all expenses, costs, damages, loss, claims or other expenses and liabilities arising from any 2-
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interference caused by Licensee'sfailure to comply with FCC,FAA or PUC rules and regulations that is not curtailed within thirty (30) days after Licensee receives written notice of such interference. Licensee shall be responsible for all costs associated with any tests deemed necessary to resolve any and all interference. Ifinterference caused by Licensee's failure to comply with FCC,FAA or PUC rules. and regulations has not been corrected within the time specified by the FCC, FAA, OR PUC or within thirty (30) calendar days, whichever is shorter, after Licensee receives notice thereof, Licensor may require Licensee to remove from the RA Equipment the specific items causing such interference. b. Licensor shall not alter its existing or contemplated use of the Lightpole, nor shall Licensor permit any lessees, licensees, employees, invitees or agents obtaining rights to the Lightpole from and after the date hereof to use any portion of the Lightpole in any way which interferes with the operations of Licensee. Without limiting the generality ofthe foregoing, Licensor hereby acknowledges that in the event of any interference with Licensee's Permitted Use as a result of the transmission or reception ( or both) of radio, microwave or other telecommunications signals by a future lessee, licensee or occupant of the Lightpole, Licensee'srights hereunder to conduct Licensee's Permitted Use shall be and remain superior to the rights of any such future lessee, licensee or occupant, subject, however, to the provisions of Section 6.d. below. Licensor further acknowledges that interference with Licensee's operations shall cause Licensee to suffer irreparable injury and entitle Licensee, in addition to exercising any other rights hereunder or under applicable law, to seek the immediate enjoinment of such interference against the interfering party. c. Licensor reserves the right to license other portions of the Lightpole to other parties during the term of this License. Accordingly, Licensor agrees that any other person or entity who may install equipment subsequent to the Commencement Date in and /or on the Lightpole will be permitted to install only such communications equipment that is of a type and frequency that will not cause any interference to Licensee or persons or entities claiming through or under Licensee. In the event any such person or entity's equipment causes such interference, Licensor will cause the interfering party to take all steps necessary to correct and eliminate the interference or such interfering party will be required to cease operations until such interference is removed. To the extent that Licensee's operations are not within the parameters of its FCC license or PUC certificate, this protection from colocated interference will not be applicable, but it shall be applicable with respect to those operations, or portions thereof, falling within the FCC license parameters or PUC certificate. Notwithstanding the foregoing, Licensee's right to be free from interference and Licensor's duties concerning the prevention and /or correction of interference shall be subject to Section 6.d. below.
d. In the event that Licensee commences using the Lightpole in a manner as to which Licensee or its customers are not presently licensed by the FCC or presently authorized by the PUC but with respect to which Licensee or its customers hereafter obtains necessary FCC licensure or PUC authorization, Licensee'sright to conduct such particular use shall be subordinate to the use of the Lightpole by Licensor, other Licensees, licensees or occupants thereof existing on or before the date on which Licensee commences such use. Licensor shall be under no obligation to exercise the duties concerning interference described above in Section 7.6. with respect to a future use ofthe Lightpole by Licensee as described in this Section 7.d.
7. Improvements; Utilities.
a. Prior to installing or allowing any RA Equipment to be installed in or on the Lightpole, Licensee shall submit detailed engineering plans and specifications of the planned installation to Licensor, together with any permit fees required, for Licensor's written approval, which approval shall not be unreasonably withheld, delayed or conditioned. Licensor'sreview of Licensee's plans shall include a review ofthe appearance ofthe RA Equipment.
The RA Equipment to be installed must be in compliance with all federal, state, and local laws, including but not limited to local zoning requirements, and must adhere to all technical standards set forth in this License.
Licensor's approval of any installation is not a representation that such installation of the RA Equipment is in compliance with all applicable governmental laws, ordinances, rules and regulations or that such facilities will not 3-
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cause interference with other communications systems, if any, then in operation on the Lightpole. Licensee hereby confirms and agrees that its RA Equipment shall be installed and operated solely within the Premises.
Licensee further agrees to reimburse Licensor'sreasonable costs for technical review of such plans, provided such costs do not exceed five thousand dollars ($5,000).
b. All work by Licensee shall be performed in compliance with applicable federal, state, and local law. Licensee and its contractors and subcontractors shall be solely responsible for the transportation, storage and safekeeping of materials and equipment used in the performance of any work, for the removal of waste and debris resulting therefrom on a daily basis, and for any damage caused by them to any installations or work performed by Licensee'scontractors and subcontractors.
c. Licensee is not authorized to contract for or on behalf of Licensor for work on, or the furnishing of materials to, the Lightpole. Licensee shall prevent the attachment of any liens against the Lightpole and keep said assets free from any liens, charges or encumbrances arising out of any work performed, materials furnished or obligations incurred by Licensee. Licensee shall also discharge of record by payment, bond or otherwise, within ten 10) days subsequent to the date ofits receipt of notice thereof from Licensor, any mechanic's, laborer's or similar lien filed against the Lightpole for work or materials claimed to have been furnished at the instance of Licensee.
The RA Equipment shall remain the exclusive property of Licensee during the term ofthis License, and Licensee shall have the right to remove all or any portion of the RA Equipment at any time during the term of this License or following the term ofthis License as hereinafter provided. d. Licensee will notify Licensor prior to commencing Licensee'sinstallation work on the Lightpole. Prior to commencing any installation, Licensee will at its own cost and expense deliver to Licensor a certificate of insurance confirming that comprehensive general liability insurance as required under Section 15 ofthis License, covering the risk during the course ofperformance of Licensee'sinstallation, has been obtained and is in place, which policy as endorsed will protect Licensor and Licensor's Releasees with respect to the Lightpole against any claim or liability arising out of the installation. Licensee's contractor will name Licensor and Licensor's Releasees as additional insured under contractor'sinsurance policies. Prior to Licensee'scommencement of the installation of the RA Equipment, Licensee shall provide Licensor with copies of any Governmental Approvals obtained by Licensee with respect to this License.
e. All installation and other work to be performed by Licensee hereunder will be done in such a manner so as not to interfere materially with, delay or impose any additional expense upon Licensor in maintaining the Lightpole. In no event will Licensor be required to consent to any installation or other work by Licensee which would physically affect any part of the Lightpole. Licensee shall repair any damage caused by Licensee to Licensor's Lightpole, reasonable wear and tear excepted.
f. Following any termination or expiration of this License, Licensee shall remove all of its RA Equipment. In performing such removal, Licensee shall restore the Lightpole and any personal property and fixtures thereon to as good a condition as they were in prior to the removal of the RA Equipment, reasonable wear and tear excepted, provided, however, this obligation to restore shall be limited to restoration to a depth of five (5) feet below grade.
If Licensee fails to remove such RA Equipment within ninety (90) days after expiration or earlier termination of this License, Licensor may remove and dispose of the RA Equipment, and Licensee shall reimburse Licensor for the reasonable costs actually incurred of such removal and restoration of the Lightpole, or Licensor may deem the RA Equipment abandoned, whereupon the RA Equipment shall become Licensor's property. g. Licensee shall, at Licensee's expense, keep and maintain its portion of the Lightpole in commercially reasonable condition and repair during the term of this License. Licensee agrees to maintain the RA Equipment in proper operating condition and within industry accepted safety standards. All installations and operations of the RA Equipment by Licensee shall comply in all material respects with all applicable rules and regulations of the FCC and all applicable federal, state, city, county and local codes and regulations. Licensor assumes no respon4- C08 -155
sibility for the licensing, operation or maintenance ofthe RA Equipment . Licensee has the responsibility of carrying out all of the terms of its FCC license and ensuring that all of Licensee's customers carry out all of the terms oftheir FCC licenses with respect to the RA Equipment. h. Licensee shall have the right, at Licensee's expense, to install commercial power utilities to the Lightpole. All utility routes must be approved by Licensor prior to construction. Licensee agrees to have a separate meter installed for Licensee's electrical power consumption, whereupon Licensee shall pay the power utility directly for such usage.
S. Technical Standards.
a. Licensee agrees that the installation, operation and maintenance of its RA Equipment shall at all times, and at Licensee's expense, comply with all applicable governmental laws and regulations and with such technical standards as may from time to time be established by Licensor, including, without limitation, technical standards relating to frequency compatibility, radio interference protection, antenna type and location and physical installation (the "Technical Standards "). The current Technical Standards are attached hereto as Exhibit B. If i) any applicable governmental laws and regulations or (ii) any new technical standards established by Licensor shall require that Licensee modify or revise the then existing installation, operation or maintenance of its RA Equipment, Licensee shall make such modifications or revisions at Licensee'ssole expense within thirty (30) days thereafter.
9. Access.
Licensee and its authorized personnel shall be entitled to twenty -four (24) hour, seven (7) days per week access to the Lightpole. For purposes hereof, "authorized personnel" shall mean only authorized employees, engineers, technicians, or properly authorized contractors of Licensee or persons under their direct supervision. All access to the Lightpole by Licensee shall be subject in each instance to the reasonable security requirements and reasonable rules and regulations from time to time in effect at the Lightpole, of which Licensor shall inform Licensee in writing. In the event Licensee requiresaccess tothe Lightpole outside of Licensor' snormal business hours, Licensee will be responsible for any reasonable costs incurred by Licensor inproviding such access tothe Lightpole. v
10. Event of Default.
It shall be an Event of Default ifany one or more ofthe following events shall occur:
a. Licensee shall default in the payment when due of any License Fees or other sum of money specified hereunder to be paid by Licensee, and Licensee does not remedy such default within ten (10) business days after written notice thereof from Licensor (provided, however, that Licensor shall not be required to provide such notice with respect to more than two payments required during any calendar year during the term hereof); or b.
Licensee shall default inthe performance of any other ofthe terms, conditions or covenants contained inthis License tobe performed or observed by Licensee other than that specified in (a) above and the interference pro-visions herein, and Licensee does not remedy such default within thirty (30) days after written notice thereof is given to Licensee or, if such default cannot be remedied insuch period, Licensee does not, within twenty (20)days after such notice from Licensor, commence such efforts or acts as shall be necessary toremedy the default and continue toprosecute such efforts and/oracts to completion with reasonable diligence.5- C08 -
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c. Upon the occurrence of an Event of Default, Licensor shall have and may pursue all rights and remedies permitted by applicable law, including but not limited to the following:
i) upon three (30) days' notice to Licensee, declare to be immediately due and payable, on account of the License Fees and other charges herein reserved for the balance of the unpaid, incurred fees related to the current year of the term of this License (taken without regard to any early termination of such term on account of an Event of Default or other right to terminate this License), a sum equal to (A) all License Fees and other charges, payments, costs and expenses due from Licensee to Licensor and in arrears at the time of the Event of Default, plus (B) the License Fees reserved for the then entire unexpired balance of the term of this License (taken without regard to any early termination of the term by virtue of an Event of Default), plus all other charges, payments, costs and expenses herein agreed to be paid by Licensee up to the end of such term that are capable of precise determination at the time ofthe Event of Default. ii) whether or not Licensor has elected to recover the sum set forth in (i) above, terminate this License on at least five (30) days' notice to Licensee and, on the date specified in such notice, this License and the term hereby demised and all rights of Licensee hereunder shall expire and terminate and Licensee shall thereupon quit and surrender possession of the Premises to Licensor in the condition elsewhere herein required, in which event Licensee shall remain liable to Licensor as herein provided. iii) suspend the supply of electrical power to the Antenna Facilities until the default is cured by Licensee, and Licensor shall have no liability to Licensee, in which case Licensee shall have no right to an abatement of any license fees for such suspension and Licensee hereby waives all claims for damages against Licensor resulting from such suspension of services.
d. In the. event Licensor shall fail to keep or perform any ofthe terms, conditions or covenants contained in this License to be performed or observed by Licensor, and Licensor does not remedy such failure within thirty (30) days after written notice thereof is given to Licensor, or if such default cannot be remedied in such period and Licensor does not, within twenty days after -such notice from Licensee, commence such efforts or acts as shall be necessary to remedy the default and continue to prosecute such efforts and/or acts to completion with reasonable diligence, Licensee shall have and shall be entitled to exercise any and all rights and remedies permitted by applicable law.
11. Termination by Licensee.
Following the Commencement Date, and except as otherwise provided herein, provided that no Event of Default exists at the time ofissuance of Licensee's written notice, this License may be terminated by Licensee in the following circumstances:
a. After the Initial Term, upon sixty (60) days prior written notice and without penalty or further liability, ifit is unable to obtain, maintain or reinstate within thirty (30) days any easement, license, permit or Governmental Approval necessary for the construction or operation of the RA Equipment in accordance with Licensee's Permitted Use. Licensee shall at all times use its diligent efforts in good faith to obtain and maintain any Government Approvals ifit desires to terminate pursuant to this section; b. After the Initial Term, upon sixty (60) days prior written notice and without penalty or further liability, if Licensee is unable to operate the RA Equipment in accordance with Licensee's Permitted Use on the Lightpole as a result of material interference (other than on a temporary, non - recurring basis) resulting from the act of any third party (other than an Existing Licensee);
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c. After the Initial Term, upon ninety (90) days prior written notice, and upon payment to Licensor of a termination fee equal to one year of the License Fees at the then current rate, if Licensee determines that, based on (i) technology, or (ii) changes in system design or system usage patterns, Licensee's use ofthe RA Equipment (as the same may have been modified from time to time) is no longer consistent with the optimal operation of Licensee's communications system. Such termination fee shall be payable at the time Licensee notifies Licensor of its election to terminate this License.
d. Upon Licensee'stermination in accordance with this Section, Licensee shall surrender and vacate it's used portion of the Lightpole and deliver possession thereof to Licensor on or before the termination date in the condition required under this License for surrender of it's used portion ofthe Lightpole.
12. Casualty and Condemnation.
a. If at any time during the term ofthis License all or "substantially all" (meaning the remaining portion thereof shall not be of sufficient size or condition to permit the continuation of Licensee's Permitted Use in a commercially reasonable manner) of the RA Equipment on the Lightpole shall be damaged and/or destroyed by fire or other casualty, then Licensee may terminate this License by providing written notice to Licensor, which termination shall be effective as of the date of such damage and /or destruction, and Licensee shall be entitled to collect all insurance proceeds payable on account thereof and to the reimbursement of any prepaid License Fee, to be apportioned as of the termination date.
b. If at any time during the term of this License all or "substantially all" (as described in the preceding subsection 12(a)) of the Lightpole or the improvements located on the Lightpole shall be taken in the exercise of the power of eminent domain by any governmental or other authority, or by deed in lieu of condemnation, then Licensee may terminate this License by providing written notice to Licensor, which termination shall be effective as of the date of the vesting of title in such taking and any prepaid License Fee shall be apportioned as of said date and reimbursed to Licensee. Licensor and Licensee shall each be entitled to pursue their own separate awards with respect to such taking, but in any event, Licensee's award shall be limited to lost improvements investment, relocation, and loss of business. In the event of any taking of less than all or substantially all of the Lightpole, this License shall continue and each of Licensor and Licensee shall be entitled to pursue its own separate awards with respect to such taking.
13. Taxes.
Licensee shall pay any personal property taxes assessed on, or any portion of such taxes attributable to, the RA Equipment. Licensor shall pay when due all real property taxes and all other fees and assessments attributable to the Lightpole. However, Licensee shall pay, as additional License Fee, any increase in real property taxes levied against the Lightpole (excluding any additional taxes that relate to the period prior to the Commencement Date, i.e., rollback taxes) and all use and occupancy taxes, if any, which are directly attributable to Licensee's use of the Lightpole, and Licensor agrees to furnish written documentation of such increase to Licensee.
14. Insurance, Bond, Release and Hold Harmless.
a. Licensee shall, at Licensee'ssole cost and expense, procure and continue in force during the term of this Agreement, including any Renewal Term:
i) Workers' Compensation Insurance ( at statutory limits) and Employer's Liability Insurance with minimum limits of $500,000;
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ii.) Comprehensive General Liability and Property Damage Insurance ( including completed operations and contractual liability) on an occurrence basis in an amount not less than 2, 00000,combined single limit; and
iii) "All- risk" property insurance insuring the Lightpole and its appurtenant personal property for full replacement costs.
All policies shall be written by an insurer with an A.M. Best rating of not less than A -, VII licensed to do business within the State where the Lightpole is located and shall provide a thirty (30) day notice of cancellation to Licensor. Such insurance shall name Licensor, Licensor's agents, employees, officers, elected and appointed officials (collectively the "Releasees ") as additional insureds. All policies, including any renewals thereof, must specify that such coverage shall not be canceled without a minimum of thirty (30) days prior written notification to Licensor.
b. Licensee shall require that its contractors (and any subcontractors) produce, prior to commencing any installation, repair, or maintenance work on the Lightpole, a certificate of original insurance policy evidencing that the following insurance is maintained:
i) Comprehensive General Liability and Property Damage Insurance (including completed operations and contractual liability) on an occurrence basis in an amount not less than 1, 00000,combined single limit.
ii) Commercial Liability Insurance with minimum limits no less than $1, 00000,combined single limit and not less than 100% of the estimated value of the improvements being constructed by or on behalf of Licensee.
iii) Workers' Compensation (at statutory limits) and Employer's Liability Insurance with minimum limits of $500,000.
All policies shall name Licensor and Releasees as additional insureds, and all shall contain a thirty (30) day written notice of cancellation to Licensor
c. Licensee hereby raleases Licensor and Releasees from, and shall not hold Releasees liable for, any liability for personal injury, consequential damages, loss of income or damage toor loss of propertyor persons, orloss of use of any property, inor about the Lightpole from any cause whatsoever unless such damage, loss or injury di-rectly results from the sole negligence or willful misconduct ofthe Releasees. Further, the Releasees shall not be liable toLicensee for any such damage or loss to the extent Licensee is compensated or would have been com- pensated by the insurance which Licensee is obligated to maintain pursuant tothis Section 14.d.
Licensee agrees toindemnify, defend and hold Releasees harmless from and against injury, loss, damage orliability ( or any claims in respect of the foregoing), costs or expenses ( including reasonable attorneys' fees and court costs) which may be imposed upon or incurred by or asserted against Releasees occurring during the term of this Agreement, or during any period of time prior to the Commencement Date hereof or after the expiration date hereof when Licensee may have been given access to or possession of all or any part of the Lightpole, arising from:
i)
any work or act done in, on or about the Lightpole or any part thereof atthe direction of Licensee, its agents, contractors, subcontractors, servants, employees, licensees or invitees, including but not limited tothe installation, use, maintenance, repair orremoval of the RA Equipment, except if such work or act is done or performed by Licensor orits agents or employee;8-
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ii) any negligence or other wrongful act or omission on the part of Licensee or any of its agents, contractors, subcontractors, servants, employees, subtenants, licensees or invitees;
iii) any accident, injury or damage to any person or property occurring in, on or about the Lightpole or any part thereof, unless caused by the gross negligence or willful misconduct of Licensor, its employees or agents; and iv) any failure on the part of Licensee to perform or comply with any of the covenants, agreements, terms, provisions, conditions or limitations contained in this Agreement on its part to be performed or complied with.
e. If Licensee proposes to conduct construction or improvement work on the RA Equipment or Lightpole, it shall furnish payment and performance bonds in amounts equal to one hundred percent (100 %) of the cost of the work.
The Licensor shall be solely responsible for determining whether a performance bond is required for a work proposed by the Licensee. Licensee shall fully cooperate with Licensor in determining the proper value of any performance bond required by this section. The bonds shall be issued by responsible sureties, licensed to do business in California, and acceptable to the Licensor. The bonds shall be in a form acceptable to Licensor. The bonds shall remain in full force and effect until an officer of the Licensee certifies in writing to the Licensor that (1) the new construction and/or reconstruction has been completed; (2) the entire cost of the work has been paid in full; 3) no liens encumber the work; (4) no liens are reasonably anticipated to be filed thereafter that would encumber the work; and (5) the new construction or improvement has been insured as provided herein. Violation of any portion of this section shall be a material breach of this Agreement. This section does not apply to facilities that are existing at the time this Agreement is executed. However, this section would be applicable to any construction or improvement work to the existing facilities as well as other construction or improvement work as provided herein."
15. Notices.
All notices, requests, demands and other communications hereunder shall be in writing and shall be per - sonally delivered or mailed, certified mail, return receipt requested, or sent by overnight carrier to the following addresses:
If to City of Redondo Beach/Licensor, to:
City Manager
City of Redondo Beach
415 Diamond St.
Redondo Beach, CA 90277
with a copy to:
City Attorney
City of Redondo Beach
415 Diamond St.
Redondo Beach, CA 90277
Licensee:
License Manager
NextG Network of California, Inc.
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2216 O'Toole Ave.
San Jose, CA 95131
or to such other address as each party may designate for itself by like notice given in accordance with this Section
16. Notices will be deemed to have been given upon either receipt or rejection.
16. Quiet Enjoyment, Title and Authority.
Licensor covenants and warrants that (i) it has full right, power and authority to execute this License and has the power to grant all rights hereunder; (ii) it has good and marketable title to the Lightpole free and clear of any liens, mortgages, restrictions or other encumbrances that would interfere with Licensee's Permitted Use ofthe Lightpole; (iii) its execution and performance ofthis License will not violate any laws, ordinances, covenants, or the provisions of any mortgage, lease, license or other agreement binding on Licensor; (iv) Licensee shall have the quiet enjoyment of the Lightpole, and Licensee shall not be disturbed as long as Licensee is not in default beyond any applicable grace or cure period; and (v) if the Lightpole is encumbered by a deed to secure debt, mortgage or other security interest, Licensor will make a reasonable, good faith effort to provide promptly to Licensee a Subordination, Non - Disturbance and Attornment Agreement ( "SNDA ") on such lender's or mortgagees then current form. Licensor will permit Licensee to contact such holder directly and will cooperate with Licensee in connection with any such discussions between Licensee and such holder concerning an SNDA.
17. Hazardous Substances.
Licensee agrees that it will not use, generate, store or dispose of any Hazardous Material on, under, about or within the Lightpole in violation of any law or regulation. Licensor represents, warrants and agrees (1) that neither nor, Licensor toLicensor' s knowledge, any third party has used, generated, stored or disposed of, or per- mitted the use, generation, storage or disposal of, any Hazardous Material on, under, about or within the Lightpole in violation of any law or regulation, except as disclosed in this License, and (2) that Licensor will not, and will not permit any third party to use, generate, store or dispose of any Hazardous Material on, under, about or within the Lightpole in violation of any law or regulation. Licensee shall defend, indemnify and hold harmless Licensor and Releasees against any and all losses, liabilities, claims and /or costs (including reasonable attorneys' fees and costs) arising from any breach of any representation, warranty or agreement contained inthis paragraph. As used in this paragraph, " Hazardous Material" shall mean hazardous orradioactive material, polychlorinated biphenyls,friableasbestos or other hazardous or medical waste substances as defined by the Comprehensive Environmental Response, Compensation and Liability Act, as amended, or by any other federal, state or local law, statute, rule, regulation or order (including any Governmental Requirements) concerning environmental matters, orany matter which would trigger any employee or community "right - to- know" adopted requirements by any such body, or for which any such body has adopted any requirements for the preparation or distribution ofa material safety data sheet. This paragraph shall survive the termination of this License.18. Assignment and Sublicensing. a. Licensee
may not assign or sublicense this License without Licensor' sconsent, which consent may be with- held or delayed in Licensor' s solediscretion. Licensor shall not unreasonably withhold ordelay its consent. 10-C08 - 155
19. Successors and Assigns.
This License shall be binding upon and inure to the benefit of the parties, their respective successors, personal representatives and assigns.
20. Waiver of Licensor's Lien.
Licensor does not waive any lien rights it may have, statutory or otherwise, concerning the RA Equipment or any portion thereof.
21. Miscellaneous.
a. The prevailing party in any litigation arising hereunder shall be entitled to its reasonable attorneys' fees and court costs. With respect to any provision in this License providing for payment or indemnification of attorneys' fees, such fees shall be deemed to include reasonable fees incurred through any applicable appeal process and shall include fees attributable to legal services provided by any in -house counsel and staff to the prevailing or indemnified party. For purposes hereof, the services of in -house attorneys and their staff shall be valued at rates for independent counsel prevailing in the metropolitan area in which such counsel and staff practice. b. This License constitutes the entire agreement and understanding of the parties and supersedes all offers, negotiations and other agreements. There are no representations or understandings of any kind not set forth herein. Any amendment to this License must be in writing and executed by both parties. c. Either party hereto that is represented in this transaction by a broker, agent or commission salesperson (a Representative ") shall be fully and exclusively responsible for the payment of any fee, commission or other compensation owing to such Representative. Licensee shall indemnify and hold Licensor harmless from and against any claim to a fee, commission or other compensation asserted by suchRepresentative, including reason-able attorneys' fees and costs incurred indefending such claim.d.
If any term of this License is found tobe void or invalid, such invalidity shall not affect the remaining terms of this License, which shall continue infull force and effect. 22.
Relocation a.
Licensor shall have the right torequire Licensee torelocate its RA Equipment toanother location onLicensor' sProperty once during theterm ofthis Agreement, if—i)
Such other location is, in Licensor' sjudgment, available andappropriate forthe proposed use, and ii)
Licensor has provided Licensee a written' notice not less than six (6) months prior to the requested date of relocation, with a map and description ofthe proposed relocation site the " Relocation Premises ").b.
All parties shall cooperate tocarry out the relocation inan expeditious and efficient manner. If necessary toprevent disruption in the continuous operation of Licensee' snetwork in the area served by Licensee' sRA Equipment, Licensee shall designate atemporary site on Licensor' sproperty which Licensee and Licensor find suitable tooperate atemporary facility during the process of relocation.c.
If Licensee gives written approval ofthe Relocation Premises, then Licensor and Licensee shall appropriately amend this Agreement, but in no event shall annual rent decrease by reason of any relocation. In the event that the Relocation Premises is at least five (5) percent larger than the original Lightpole, the Licensor shall adjust upwards the remaining rent by the same percentage asthat of the increase inthe size of the Relocation Premises as compared with that of the original Lightpole. ll008 -
155
d. Licensee shall be responsible for all out - pocket of- costs and expenses Licensee and Licensor incur in connection with the relocation, and shall promptly reimburse Licensor for its out - pocket of- costs and expenses; provided, however, that Licensor shall waive all fees and charges in connection with obtaining necessary municipal licenses, permits and approvals, easements and restriction waivers for any such relocation.
23. Mortgage Subordination.
This License is and shall be subject and subordinate to all ground or underlying leases of the Lightpole and to all mortgages, deeds oftrust and similar security documents which may now or hereafter be secured upon the Lightpole, and to all renewals, modifications, consolidations, replacements and extensions thereof. This clause shall be self - operative and no further instrument of subordination shall be required by any lessor or mortgagee, but in confirmation of such subordination, Licensee shall execute, within fifteen (15) days after request, any certificate that Licensor may reasonably require acknowledging such subordination. Notwithstanding the foregoing, the party holding the instrument to which this License is subordinate shall have the right to recognize and preserve this License in the event of any foreclosure sale or possessory action, and in such case, this License shall continue in full force and effect at the option of the party holding the superior lien and Licensee shall attorn to such party and shall execute, acknowledge and deliver any instrument that has for its purpose and effect the confirmation of such attornment. Notwithstanding the foregoing, the subordination set forth above shall be subject to the terms of any SNDA which may be entered into by and between Licensee, Licensor and Licensor's mortgagee.
24. Non - Liability of Officials and Employees of the Licensor.
No official or employee of the Licensor shall be personally liable for any default or liability under this Agreement.
25. Compliance With Laws.
Licensee shall comply with all federal, state and local laws, statutes, ordinances, rules and regulations, and the orders and decrees of any courts or administrative bodies or tribunals in any manner affecting the performance of this Agreement, including without limitation laws requiring licensing and non - discrimination in employment because of race, creed, color, sex, age, marital status, physical or mental disability, national origin or other prohibited bases.
26. Exhibits.
All exhibits hereto are made a part hereof and incorporated herein by reference. In the event of a conflict between the terms and conditions ofthis Agreement and those of any exhibit or attachment hereto, this Agreement proper shall prevail. In the event of a conflict between the terms and conditions of any two or more exhibits or attachments hereto, those prepared by Licensor shall prevail over those prepared by Licensee.
27. Time of Essence.
Time is of the essence of this Agreement.
28. Confidentiality.
To the extent permissible under law, Licensee shall maintain as confidential its obligations hereunder and the information acquired during the performance ofthe services hereunder.
29. Venue.
This Agreement shall be construed in accordance with the law of the State of California. Venue shall reside exclusively in the Superior Court of the County of Los Angeles, Southwest Judicial District. 12-
C08 -155
30. Claims.
Any claim by Licensee against Licensor hereunder shall be subject to Government Code §§ 800 et seq. The claims presentation provisions of said Act are hereby modified such that the presentation of all claims hereunder to the Licensor shall be waived if not made within six months after accrual of the cause of action.
31. Waiver.
The waiver by the Licensor of any breach of any term or provision ofthis Agreement shall not be construed as a waiver of any subsequent breach.
SIGNATURES APPEAR ON PAGES IMMEDIATELY FOLLOWING.]
13-
C08 -155
IN WITNESS WHEREOF, the parties have executed this Agreement in Redondo Beach, California, as of this day of 1 ,
2008. Mike Gin Mayor
APPROVED AS
TO FORM:
City
Attorney
ATTEST:30 11 M11
11 11
1 0I IJWi
LICENSEE NEXTGNETWORKS OF CALIFORNIA, INC.By:
tName: Robert L.
Delsman
Title: V.
P.,
Gov. Rels. & Reg. AffairsAPPROVED:
Risk
M ager 14-
C08 -
155
EXHIBIT A
F
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i casnNaFr
iac
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FC08 - fdvmy
155
SITE PLAN
WEST ELEVATION
C08 -155
FNM7110LE
30'x77'
V -\
CONNEGTtON 3.
12 v
EXHIBIT B
SITE TECHNICAL STANDARDS
I. General
Licensee and all of Licensee'scustomers shall furnish the following to Licensor prior to installation of any equipment.
1) Copies of FCC licenses /construction permits related to and /or authorizing the use of the Radio Antenna Equipment ( "RA Equipment ").
The following will not be permitted without the written consent of Licensor, which consent shall not be unreasonably withheld:
1) Equipment which does not conform to FCC Rules and Regulations. 2) Any equipment without FCC type approval or type acceptance.
II. RA Equipment:
The following shall apply to all RA Equipment except as specifically authorized in the site plans attached to this License at Exhibit A:
1)
Mounted
only
on
approved
side arms or posts or other specified mounts and only oneper mount unless otherwise authorized by Licensor.2) All mounting hardware
galvanized or non - corroding metal.3) Bonded with
copper braid tothestructure ground system.4) Connections tobe made weatherproof.5)
Unless otherwise authorized by Licensor, all antennas must be encased in fiberglass radomes and be painted or impregnated with a color designated by Licensor as the standard antenna color for aesthetic uniformity.
6) Mounting pipes must be cut such that they do not extend above, below, or to the sides of the antenna, except that mounting pipes may extend horizontally between active antennas. —III.
Antenna Mounts The
following shall apply toall RA Equipment except as specifically authorized inthe site plans attached to this License at Exhibit A:1)
2" or greater heavy wall galvanized mounting pipes must be used. 2) No welding or drilling on mounts will be permitted once constructed by the original manufacturer of the mount.3)
Any corroding hardware must bereplaced. IV.
Cable 1)
All antenna transmission lines shall be grounded atthe antenna, atthe entry point tothe equip- ment room, and in the equipment room, with the appropriate grounding kits.2) All antenna lines to be jacketed coaxial cable.3)
All externally- mountedtransmission lines must be clamped with stainless steel clamps made specifically forthis purpose at spacing intervals as specified by the cable manufacturer. 16- C08 -
155
4) Any cable fasteners exposed to weather or sunlight must be nylon ultraviolet resistant type or stainless steel.
5)
All
cable
must
be run in troughs or cable trays where provided or indicated. No vertical riser coax cables outside of the antenna mast shall bepermitted. 6) All unused
lines must be tagged and terminated at both ends showing termination points.7) All AC power cords must be 3 conductor with grounding plugs.8) The use of extension cords shall not be allowed.
V. Cabinets
1) All cabinets must be bonded together and grounded to the electrical ground. 2) All cabinet doors must be on, closed at all times when active servicing of the equipment is not occurring, and kept locked.
3) All non - original holes larger than P must be covered with copper screen or solid metal plates.
VI. Installation Procedures
1) Installation may take place only after Licensor has been notified of the date and time, and only during normal working hours unless otherwise specifically authorized. 2) Equipment may not be operated until the installation has been approved by Licensor, which approval shall not be unreasonably withheld. 3) All equipment, cables, antennas, masts, and all other elements of this project must remain within the designated lease space at all times.
VII. Maintenance /Tuning Procedures
1) All cover, shield, and rack fasteners must be in place and securely tightened. 2) Local speakers must be turned off except during service.
VIII. FCC Licensing.
1) All FCC licenses of Licensee and all of Licensee'scustomers that use this 91te must be current. 2) All FCC licenses and other such information required to be posted must be posted as prescribed by FCC rules, with copies to Licensor.
IX. Interference DiagnosingProcedures1)
All Licensees must cooperate ina timely fashion with Licensor when called upon toinvestigate aclaim ofinterference, whether or not it can be conclusively proven that their equipment isin- volved. 2)
Licensor will provide best efforts to assist in locating and curing all interference problems brought tothe Licensor by Licensee. Ifaspecific interference problem as brought toLicensor by Licensee isfound tobe existing inLicensee' sequipment, then Licensee will reimburse Licensor for technical assistance ata reasonable market rate, plus any reasonable expenses.X.
Miscellaneous 1)
All installations must be maintained ina neat and orderly manner.2) Access toequipment and antennas shall be by authorized personnel only, and only for purposes of installation, service or maintenance.3)
All rubbish related toLicensee' sinstallation andoperations must beremoved immediately.17- C08-
155