exv10w15






Exhibit 10.15




CONFIDENTIAL TREATMENT REQUESTED BY NEXTG NETWORKS, INC.




FORNet DESIGN AND INSTALLATION AGREEMENT




     THIS FORNet DESIGN AND INSTALLATION AGREEMENT (the “Agreement”)

is made as of the Effective Date by and between:



	 	 	 	 	 
	 

	 	Company:
	 	Nextel Operations, Inc., a Delaware corporation (“Company”)
	 
	 	 	 	 
	 

	 	Address:
	 	2002 Edmund Halley Drive
	 

	 	 	 	Reston, Virginia 20190
	 
	 	 	 	 
	 

	 	Contractor:
	 	NextG Networks, Inc., a Delaware corporation
	 
	 	 	 	 
	 

	 	Address:
	 	2216 O’Toole Avenue
	 

	 	 	 	San Jose, CA 95131






RECITALS





WHEREAS, Company is an operator and provider of wireless communications;




WHEREAS, Contractor represents that it is skilled in the design and installation of FORNet
Systems, as defined below, and desires to provide such services, from time to time, to
Company; and




WHEREAS, Contractor and Company are entering into this Agreement to govern the award of such
design and installation services to Contractor;




NOW, THEREFORE, Company and Contractor (sometimes referred to individually as a “Party” or
collectively as “the Parties”) agree as follows:



1. DEFINITIONS





1.1 “Acceptance Criteria” refers to the mutual testing procedures set forth in Attachment 4.




1.2 “Agreement” means this FORNet Design and Installation Agreement, together with all
attachments, exhibits and schedules hereto.




1.3 “Authorized Representative” means, for Company, the Vice President of Engineering &
Operations or his or her designee, and for Contractor, a person who holds an equivalent or
greater position.




1.4 “Business Day” means Monday through Friday, excluding national holidays.




1.5 “Change Order” means a modified Purchase Order noting any material change in the Work to
be performed, any adjustment in the Contract Sum, or any time extension with respect to
completion of the Work to be provided for a Project, as mutually agreed upon in writing by
the parties hereto.





 




			
	***	 	Confidential treatment requested pursuant to a request for confidential treatment filed with the Securities and Exchange Commission. Omitted portions have been filed separately with the Commission.





 









 





CONFIDENTIAL TREATMENT REQUESTED BY NEXTG NETWORKS, INC.





1.6 “Claims” means any fines, penalties, losses, costs, damages, injuries, claims, actions,
causes of action, expenses, or liabilities, including, without limitation, all court costs
and reasonable fees of attorneys, consultants and/or experts, of whatever kind and nature,
whether for death, personal injury, property damage or otherwise.




1.7 “Company Parties” means Company’s parent corporations and majority or wholly-owned
subsidiaries, affiliates or partners that are controlled by Company or its parent
corporations or under common control with the Company, and the officers, directors,
employees, agents, successors and assignees of each.




1.8 “Contract Documents” means all drawings, specifications and lists depicting those items,
procedures and timelines necessary for the proper execution and completion of the Work by
Contractor for any individual Project, including this Agreement and the Proposal, Drawings,
Specifications, and addenda for the Project and any other documents listed therein completed
pursuant to the terms and conditions of this Agreement and accepted by Company, and also
includes any modifications issued in writing, including but not limited to Purchase Orders
and Change Orders.




1.9 “Contract Sum” means the total amount payable by Company for performance of the Work
under the Contract Documents for a particular Project, including amounts payable pursuant to
a Change Order.




1.10 “Contract Time” means the duration of a particular Project as specified in the Proposal.




1.11 “Contractor” means the individual or legal entity described under Contractor designation
in the preamble of this Agreement.




1.12 “Contractor Parties” means Contractor’s affiliates, Subcontractors, and the officers,
directors, employees, agents, successors and assignees of each, and any other persons
performing portions of the Work under a contract with Contractor or a Subcontractor, or
otherwise with Contractor’s or a Subcontractor’s permission or assent, or anyone else for
whose acts they may be liable.




1.13 “Dispute” means any claim or dispute between Company and Contractor arising in
connection with the negotiation, construction, interpretation, validity, performance,
enforcement, operation, breach of, or termination of this Agreement.




1.14 “Diverse Suppliers” means small business concerns, veteran-owned small business
concerns, HUBZone small business concerns, women-owned small business concerns, small
disadvantaged business concerns (including 8(a) business concerns) and Historically Black
Colleges and Universities and minority institutions as set forth in Federal Acquisition
Regulation Part 19 and 13 C.F.R. Part 121, as the same may be amended.




1.15 “Drawings” means the graphic and pictorial portions of the Contract Documents consisting
of the written requirements for materials, equipment, construction systems, standards and
workmanship for the Work, and performance of related services.





 




			
	***	 	Confidential treatment requested pursuant to a request for confidential treatment filed with the Securities and Exchange Commission. Omitted portions have been filed separately with the Commission.






					
	 	 	 	 	 
	     Nextel Proprietary & Confidential
	 	-2-
	 	MCA/BDA –2.11.05 





 









 





CONFIDENTIAL TREATMENT REQUESTED BY NEXTG NETWORKS, INC.





1.16 “Effective Date” means the date the last Party executes and conveys this Agreement back
to the other Party.




1.17 “Final Completion” means the date on which Company reasonably deems, pursuant to the
standards set forth in this Agreement, the Contract Documents and the Acceptance Criteria,
that (i), as to Phases 2 through 4, as set forth in Section 8.1 of this Agreement, (a)
Substantial Completion has occurred, (b) as built drawings have been provided, and (c) the
Work has received final inspection and approval, if any is required, from the appropriate
municipal or public utility, private owner of poles, conduit or trenches and governmental
agencies; and (ii) as to Phase 5, as set forth in Section 8.1 of this Agreement, (a) the
Acceptance Criteria, set forth in Attachment 4, have been met, (b) as built drawings have
been provided, and (c) the Work has received final inspection and approval, if any is
required, from the appropriate municipal or public utility, private owner of poles, conduit
or trenches and governmental agencies.




1.18 “FORNet Fibers” shall have the meaning designated in the MSA.




1.19 “FORNet Hub Equipment” shall have the meaning designated in the MSA.




1.20 “FORNet Master Services Agreement” or “MSA” means the agreement by and between Company
and Contractor, dated as of                     , 2006, pursuant to which the Contractor will own and
operate and Company shall [***] use and operate a related FORNet System.




1.21 “FORNet Remote Node” shall have the meaning designated in the MSA.




1.22 “FORNet System” shall have the meaning designated in the MSA.




1.23 FORNet System Acceptance Criteria and Testing Procedures” refers to the Acceptance
Criteria and Testing Procedures mutually agreed to by Contractor and Company and which shall
be attached hereto as Attachment 4, and incorporated herein by reference.




1.24 Force Majeure Events” Notwithstanding anything to the contrary herein, neither OPERATOR
nor COMPANY shall be in default under this Agreement with respect to any delay in its
performance (other than a failure to make payments when due) caused by any of the following
conditions and not the negligent acts or omissions of the party claiming relief under this
Article (each a “Force Majeure Event”): (a) act of God; (b) fire; (c) flood; (d) material
shortage or unavailability not resulting from the responsible party’s failure to timely place
orders or take other necessary actions therefore; (e) government acts, omissions, codes,
ordinances, laws, rules, regulations, or restrictions; (f) war, civil disorder, terrorism or
terrorist event; (g) labor strife, action or strike; or (h) any other cause beyond the
reasonable control of such party, including but not limited to utility pole hits. The party
claiming relief under this Section 1.24 shall promptly notify the other in writing of the
existence of the Force Majeure Event relied on, the expected duration of the Force Majeure
Event, and the cessation or termination of the Force Majeure Event. The party claiming
relief under this Article shall exercise commercially reasonable efforts to minimize the time
for any such delay.




 




			
	***	 	Confidential treatment requested pursuant to a request for confidential treatment filed with the Securities and Exchange Commission. Omitted portions have been filed separately with the Commission.





					
	 	 	 	 	 
	     
Nextel Proprietary & Confidential
	 	-3-
	 	MCA/BDA –2.11.05 







 









 





CONFIDENTIAL TREATMENT REQUESTED BY NEXTG NETWORKS, INC.





1.25 “Hazardous Condition” means any hazardous condition on the subject property, including,
without limitation: a) the presence of any hazardous materials including, without limitation,
asbestos, urea, formaldehyde, polychlorinated biphenyls, petroleum and petroleum based
products, methane, radon, lead, any flammable substance or material, any explosive, any
radioactive substance or material and any hazardous, dangerous, toxic or regulated waste,
substance, pollutant, contaminant or material, and further including, without limitation, any
substances or materials defined as or included within the definition of “hazardous
substances,” “hazardous wastes,” “hazardous materials,” or “toxic substances” under any Laws,
regulations and formal administrative policies related thereto of all federal, state,
regional or local governmental entities or agencies which regulate or otherwise require
permits or other approvals for or in connection with the construction, use or occupancy of
land and improvements to land; b) physical conditions above or below the surface of the
ground or concealed or unknown conditions of an unusual nature in an existing structure or
below the surface of the ground.




1.26 “Historically Black Colleges and Universities,” means institutions determined by the
Secretary of Education to meet the requirements of 34 C.F.R. Section 608.2; it can also mean
any nonprofit research institution that was an integral part of such a college or university
before November 14, 1986.




1.27 “Hub” means those facilities and locations identified in each FORNet License under the
FORNet Master Services Agreement including, but not limited to, Company’s assigned foot print
within a multi-user Hub facility, owned, leased, subleased, licensed or sublicensed by either
Company or Contractor for purposes of the installation, operation and maintenance of the
FORNet Hub Equipment.




1.28 “Laws” means applicable ordinances, orders, resolutions, policies, guidelines, laws,
rules, and regulations of any federal, state, regional or local government or agency.




1.29 “Minority Institutions,” means institutions meeting the requirements of Section 1046(3)
of the Higher Education Act of 1965 [20 U.S.C. §1135d-5(3)], and also Hispanic-serving
institutions as defined in Section 316(b)(1) of such Act [20 U.S.C. §1059c(b)(1)].




1.30 “Network” shall have the meaning set forth in the FORNet Master Network Services
Agreement.




1.31 “Project” means the design, engineering and construction services to be performed by
Contractor pursuant to this Agreement as to any particular Network.




1.32 “Proposal” means the document containing the information specified in the Scope of Work,
including, but not limited to, all required Drawings and Specifications as expressly agreed
to by Company and Contractor in writing as to any particular Project.




1.33 “Punch List” means a comprehensive list of items to be completed or corrected submitted
to Contractor, from Company.





 




			
	***	 	Confidential treatment requested pursuant to a request for confidential treatment filed with the Securities and Exchange Commission. Omitted portions have been filed separately with the Commission.




					
	 	 	 	 	 
	     Nextel Proprietary & Confidential
	 	-4-
	 	MCA/BDA –2.11.05 







 









 





CONFIDENTIAL TREATMENT REQUESTED BY NEXTG NETWORKS, INC.





1.34 “Purchase Order” means a document in substantially the same form as Attachment 2 and
issued by Company.




1.35 “Renewal Term” means any additional [***] period beginning from the end of the Term or
prior Renewal Term as provided for in Section 2.3 below.




1.36 “Specifications” means that portion of the Contract Documents consisting of the written
requirements for materials, equipment, construction systems, standards and workmanship for
the Work, and performance of related services.




1.37 “Subcontractor” means a person or entity that has a direct contract with Contractor to
perform a portion of the Work at a Project or to supply any needed material for the Project.
The term “Subcontractor” shall also include any person or entity that has a direct or
indirect relationship with any party in privity with Contractor for the performance of the
Work on a Project.




1.38 “Substantial Completion” means, as to Phases 2 through 5, as set forth in Section 8.1 of
this Agreement, the date upon which each phase of the Work (or a specified part thereof) is
sufficiently complete, in strict compliance with the Drawings, Specifications and the other
Contract Documents, so that the Work (or specified part) can be used by Company for the
purpose for which it is intended. The terms “substantially complete” and “substantially
completed,” as applied to all or part of the Work, refer to the Substantial Completion
thereof.




1.39 “Term” means the period beginning as of the Effective Date and continuing [***] from the
Effective Date.




1.40 “Work” means the design, engineering, construction and other services required by the
Contract Documents in connection with any Project for which Company issues and Contractor
accepts a Purchase Order or Change Order, whether completed or partially completed, and,
except as provided otherwise in the Contract Documents, includes all labor, materials,
equipment, and services provided or to be provided by Contractor to fulfill Contractor’s
obligations.



2. PROJECTS





2.1 This Agreement covers all Work that Contractor may perform for Company as mutually agreed
to by Company and Contractor in writing from time to time pursuant to the Contract Documents
for such Project and the terms and conditions of this Agreement. In order for Contractor to
be eligible to be selected to perform Work on any Project (which eligibility does not imply
that such Contractor will be selected to perform the Work), Contractor shall (1) at the
request of Company, submit a completed Proposal for the Project to Company in the form
specified in this Agreement, or as may be otherwise directed by Company, and (2) be in full
compliance with this Agreement.




2.2 Nothing contained herein shall require Company to provide to Contractor any Work
whatsoever or to accept any Proposal from Contractor. Company’s issuance of a Purchase Order





 




			
	***	 	Confidential treatment requested pursuant to a request for confidential treatment filed with the Securities and Exchange Commission. Omitted portions have been filed separately with the Commission.





					
	 	 	 	 	 
	     Nextel Proprietary & Confidential
	 	-5-
	 	MCA/BDA –2.11.05 






 









 





CONFIDENTIAL TREATMENT REQUESTED BY NEXTG NETWORKS, INC.





shall be final authorization to Contractor to commence Work pursuant to the Contract
Documents. A Proposal may be terminated by Contractor in writing prior to the receipt of Company’s
Purchase Order therefore if all necessary Purchase Orders are not received by Contractor
within [***] of the date of acceptance of a Proposal by Company. This Agreement is entered
into for the purpose of providing a simplified method of allowing Contractor and Company to
engage in any Work hereunder, if and when Company and Contractor so agree, on a
Project-by-Project basis. Contractor understands that Company may make a general or a
specific solicitation for any Work with respect to any present or future Project(s), which
may or may not include Contractor, and Company is not required to notify Contractor of any
such solicitation at any time or for any reason.




2.3 This Agreement shall be effective as of the Effective Date. Unless terminated in
accordance with Section 20 hereof, this Agreement shall continue for the Term, and shall be
automatically renewed for subsequent Renewal Terms at each anniversary of the Effective Date,
unless either party gives notice of non-renewal prior to the commencement of a Renewal Term.
This Agreement shall be modified only by written agreement signed by both Company and
Contractor.



3. CONTRACT DOCUMENTS





3.1 The Contract Documents shall not be construed to create a contractual relationship
of any kind between Company and a Subcontractor; nor between any persons or entities other
than Company and Contractor.




3.2 The Contract Documents shall be mutually agreed to in writing.




3.3 [***].




3.4 With respect to documents prepared by any third party and furnished to Contractor by or
through Company, Company assumes responsibility for the accuracy, uniformity or correctness
of any statements, data, assertions, analyses, evaluations or recommendations contained in
any documents or materials prepared by any third party. With respect to documents prepared
by any third party and furnished to Company by or through Contractor, Contractor assumes
responsibility for the accuracy, uniformity or correctness of any statements, data,
assertions, analyses, evaluations or recommendations contained in any documents or materials
prepared by any third party.




3.5 Contractor shall perform the Work according to the applicable Contract Documents. If
Contractor determines that portions of the Contract Documents are at variance with any Laws,
Contractor shall promptly notify Company in writing and necessary changes shall be
accomplished by appropriate modification as the parties might mutually agree. [***].



4. ADMINISTRATION





4.1 Administration of each Project will be provided directly by Company, whether through its
own employees or through consultants or other representatives designated by Company to
Contractor. At the time of issuance of the Purchase Order for any Project, Company and
Contractor shall designate the name, address and telephone number of the person or persons
who shall act as their




 




			
	***	 	Confidential treatment requested pursuant to a request for confidential treatment filed with the Securities and Exchange Commission. Omitted portions have been filed separately with the Commission.





					
	 	 	 	 	 
	     Nextel Proprietary & Confidential
	 	-6-
	 	MCA/BDA –2.11.05 







 









 





CONFIDENTIAL TREATMENT REQUESTED BY NEXTG NETWORKS, INC.





respective representative during the progress of the Work. Without in
any way modifying the notice requirement of Section 25, all communications, notices, submittals, and other correspondence
from either Party, shall be directed to such person or persons specified as the respective
representative(s) for the purposes of routine administration and completion of the Project.
If more than one person is so specified, the Party shall send all such documents to each of
those persons specified by the other Party.



5. SUBCONTRACTOR





5.1 As soon as practicable after Company’s issuance of a Purchase Order, Contractor shall
furnish to Company the names of any Subcontractors it intends to use to perform the Work.
Contractor shall not contract with any Subcontractor to whom Company has made reasonable and
timely objection.




5.2 Company shall have no obligation to pay, or to see to the payment of, any monies to any
Subcontractor. Nothing contained herein shall be deemed to create any contractual
relationship between Company and any Subcontractor or to create any rights in any
Subcontractor against Company.




5.3 Contractor shall promptly advise Company of any claim or demand by a Subcontractor
claiming that any amount is past due to such Subcontractor or claiming any default by
Contractor in any of its obligations to such Subcontractor.




5.4 Assignment of construction Project and associated Contract Documents: The performance of
Contractor’s obligations under the Contract Documents are personal in nature and may not be
assigned by Contractor without first obtaining consent therefore, in writing, from Company,
the granting of which shall not be unreasonably, withheld, conditioned or delayed, and any
attempted assignment without Company’s consent shall be void and unenforceable. Upon
Contractor’s written request to Company, Company shall make partial or full payments of the
Contract Sum by joint check to Contractor and Contractor’s assignee. If Contractor makes
any such assignment, Contractor shall not be relieved of responsibility for any of its
obligations under the applicable Contract Documents.




5.5 Assignment of Fornet Design and Installation Agreement: With written notice to Company,
Contractor may assign this Agreement, in whole or in part, to: (a) a subsidiary, affiliate
or parent of Contractor; (b) any firm, corporation, or entity which Contractor controls, is
controlled by, or is under common control with; (c) any partnership in which it has a
majority interest; or (d) any entity which succeeds to all or substantially all of
Contractor’s assets or stock, or substantially all the assets or stock of one of its regional
affiliates, whether by merger, sale or otherwise. Contractor shall provide Company written
notice setting forth the name and address of the assignee under any such assignment. If
Contractor makes any such assignment, Contractor is not relieved of any of Contractor’s
obligations under the applicable Contract Documents or this Agreement.



 




			
	***	 	Confidential treatment requested pursuant to a request for confidential treatment filed with the Securities and Exchange Commission. Omitted portions have been filed separately with the Commission.





					
	 	 	 	 	 
	     Nextel Proprietary & Confidential
	 	-7-
	 	MCA/BDA –2.11.05 








 









 





CONFIDENTIAL TREATMENT REQUESTED BY NEXTG NETWORKS, INC.




6. SEPARATE CONTRACTORS





6.1 Company reserves the right to perform construction or operations related to any Project
with Company’s own representatives, and to award separate contracts in connection with any
Project, or portions of any Project or other construction or operations under conditions of
the Contract Documents identical or substantially similar thereto or under any other
conditions at Company’s sole discretion.




6.2 Contractor shall coordinate the Work with Company’s operations, and operations of any
third party retained by Company, at the Work location, including but not limited to the
introduction and storage of any materials used by Company and third party as provided for in
the Contract Documents, provided, however, that any delays in the applicable construction
schedule shall be governed by Section 7.1 below.




6.3 [***]. Company may retain a third party to inspect the Work and determine the presence
of any defects in the Work that would affect the operations to be performed by Company at the
Project. If such third party finds any such defects within the warranty period stated in
Section 22.1 below, Contractor shall promptly remedy such defects upon Company’s demand.



7. DELAYS AND EXTENSIONS OF TIME





7.1 Any delays in the completion of Work that is due to a Force Majeure Event or the acts or
omissions of Company or its employees, agents or contractors, excluding those agents or
contractors retained by Contractor, may be cause for extending an applicable date of
completion of any Work contemplated under any Project. If Contractor wishes to rely upon any
of such causes for obtaining an extension, it shall promptly notify Company in writing
stating with specificity the Force Majeure Event, (or other source of delay), the specific
elements of the Work that will be impacted, the specific areas involved in such problem and
its then anticipated period of delay. [***]. Upon receipt of such notice, Company shall
determine whether an extension is reasonably justified and if so, the Parties shall discuss
an equitable extension, generally day for day, of the applicable date(s) of completion,
taking into account not only the time of the Force Majeure Event (or other source of delay),
but also its reasonable impact on Contractor’s ability to complete the Work for which
Contractor is responsible; provided, Company shall make the final determination of the
extension reasonably required to reflect the impact of the Force Majeure Event on Contractor
and the Work in good faith. Company shall have the option to deny the requested extension
for good cause in good faith, if it is shown that such occurrence should not reasonably cause
any such delay. If Contractor believes the occurrence of a Force Majeure Event requires an
adjustment of the Contract Sum, Contractor shall so advise Company and the parties must
negotiate in good faith a reasonable adjustment to the Contract Sum.




 




			
	***	 	Confidential treatment requested pursuant to a request for confidential treatment filed with the Securities and Exchange Commission. Omitted portions have been filed separately with the Commission.






					
	 	 	 	 	 
	     Nextel Proprietary & Confidential
	 	-8-
	 	MCA/BDA –2.11.05 






 









 





CONFIDENTIAL TREATMENT REQUESTED BY NEXTG NETWORKS, INC.




8. FORNet SYSTEM DESIGN; ACQUISITION OF RIGHTS

AND PERMITTING; DEPLOYMENT AND ACCEPTANCE





8.1 The Work shall be completed [***] as set forth below. Phase 2 and Phase 3 shall be
mutually approved through an iterative process. With Company’s written approval, Contractor
may elect to work simultaneously on two or more phases.




Phase
1 – Contract Award. Date Contractor is selected to perform Work as to a
specific Project as demonstrated by the parties reaching agreement on a Proposal, including
without limitation, [***].




Phase
2 – Design. Contractor will prepare and submit for Company’s approval, [***].




Phase
3 – Access/Right of Way/Permits/Zoning. Contractor will use commercially
reasonable efforts to secure all necessary utility structure access agreements, licenses,
franchises, rights-of-way agreements and permits necessary to construct the Network (the
“Underlying Rights”). Company shall cooperate and assist Contractor with the acquisition of
the required Underlying Rights; provided, that Company shall not be required to make any
monetary payment to Contractor or any third party in connection with such cooperation and
assistance beyond payments mutually agreed to in the Contract Documents.




Phase
4 – Deployment/Construction. Contractor shall deploy all fiber via aerial,
conduit or trench, install all FORNet Hub Equipment and FORNet Remote Nodes as per the
approved design for each FORNet System.




Phase
5 – Commissioning. Contractor shall perform all tasks necessary to meet the
Acceptance Criteria.




8.2 [***]


8.2.1 [***]

8.2.2 [***]

8.2.3 [***]

8.2.4 [***]

8.2.5 [***]





[***].




8.3 Pricing for Phased work, once fixed, is firm for [***] from the date of (a) Contractor’s
Proposal, and (b) Substantial Completion of the previous Phase, as the case may be, after
which time Contractor may choose to re-bid the Project and any further Work would be subject
to the subsequent mutual agreement of the Parties. Notwithstanding anything to the contrary
herein, if at any time prior to the date that is [***] from the date of Substantial
Completion of Phase 3, Company chooses to proceed with the construction of a network based on
designs produced by Contractor pursuant to this Agreement, it may do so only utilizing the
services of Contractor. If any permits or other



 




			
	***	 	Confidential treatment requested pursuant to a request for confidential treatment filed with the Securities and Exchange Commission. Omitted portions have been filed separately with the Commission.





					
	 	 	 	 	 
	     Nextel Proprietary & Confidential
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CONFIDENTIAL TREATMENT REQUESTED BY NEXTG NETWORKS, INC.



authorizations obtained by Contractor expire or otherwise lapse prior to the use thereof, the
cost of renewing or replacing the same shall be born solely by Company.



8.4 Notwithstanding anything to the contrary herein, unless specifically provided otherwise
in the underlying Proposal, the Contract Sum does not cover [***].




9 CHANGE ORDERS





9.1 If Company desires Contractor to perform Work that is substantially different in type
from the Work specified in the Proposal, that additional Work shall be set forth in a written
amendment to this Agreement executed by both Parties and authorized by the issuance of a
Purchase Order or Change Order.




9.2 If Company desires Contractor to perform Work that is not specified in the Proposal, but
is Work similar in type to the Work specified therein, Company shall notify Contractor of the
additional Work proposed to be performed and Contractor shall, if it so chooses, submit to
Company a Proposal, describing in detail the proposed additional Work to be provided, along
with the proposed compensation and time period for completion applicable thereto. In the
event Company approves the Proposal for such additional Work, Company shall issue a mutually
acceptable Change Order referencing the Proposal as authorization for the additional Work.
Company shall not be liable for any such additional Work, and Contractor shall not commence
any such additional Work, unless and until Company and Contractor have mutually executed and
delivered the Change Order.




9.3 If, after Contractor commences the performance of the Work authorized by a Purchase
Order, Company desires Contractor to perform Work that is set forth in The Proposal, but was
not previously authorized by a Purchase Order, Company shall propose a Change Order. Company
shall not be liable for, and will not pay for, any additional Work unless and until the
Parties have signed and delivered a Change Order for such additional Work. Contractor shall
thereupon promptly commence such Work.




9.4 [***].




9.5 [***].



10 TIME





10.1 It is expressly agreed that time is of the essence in this Agreement. Contractor agrees
that by submitting a Proposal to Company, Contractor confirms that the specified Contract
Time is a reasonable period for performing the Work assuming timely performance by Company of
its obligations in connection with the proposed Project.




10.2 [***]. Company shall, within [***] of receiving notice from Contractor certifying in
writing that Substantial Completion has occurred, either (i) provide Contractor with
notification in writing that Substantial Completion has occurred, or (ii) provide a Punch
List for completion. Company shall provide Contractor with its approval or request for
corrections, completions or changes consistent with the Contract Documents within [***] of receiving notice from Contractor
certifying




 




			
	***	 	Confidential treatment requested pursuant to a request for confidential treatment filed with the Securities and Exchange Commission. Omitted portions have been filed separately with the Commission.






					
	 	 	 	 	 
	     Nextel Proprietary & Confidential
	 	-10-
	 	MCA/BDA –2.11.05 






 









 





CONFIDENTIAL TREATMENT REQUESTED BY NEXTG NETWORKS, INC.





in writing that Substantial Completion of Phases 2 through 5 have occurred and are
ready for final inspection by Company or Final Acceptance shall be deemed to have occurred
with respect to the affected FORNet System. If additional inspections are necessary due to
portions of the Work still found incomplete or unsatisfactory, the above mentioned procedure
shall be used for further inspections until all items are satisfactorily completed. Company
shall certify in writing when Final Completion has occurred.



11 CONTRACTOR





11.1 Contractor shall be solely responsible for and have control over construction means,
methods, techniques, sequences and procedures and for coordinating all portions of the Work
under each Project, unless the Contract Documents give other specific instructions concerning
these matters. All Work shall be performed in a good and workmanlike manner.




11.2 Prior to the commencement of Work for a Project and continuously thereafter, Contractor
shall carefully examine the Contract Documents and immediately report in writing to Company
any error, inconsistency, ambiguity, omission, insufficiency of detail or explanation or
variance with existing physical conditions at the location.




11.3 Unless otherwise provided in the applicable Contract Documents, Contractor shall provide
and pay for labor, materials, equipment, tools, construction equipment and machinery, water,
heat, utilities, transportation, and other facilities and services necessary for the proper
execution and completion of the Work, whether temporary or permanent and whether or not
incorporated or to be incorporated in the Work.




11.4 Contractor warrants to Company that materials and equipment furnished for the Work will
be of good quality, new, of current manufacture and fit for its intended purpose unless
otherwise required or permitted by the Contract Documents, that the Work will be free from
defects in workmanship, and that the Work will conform in all material respects to the
requirements of the Contract Documents. Work not conforming to these requirements, including
substitutions not properly approved and authorized by Company, may be considered defective.
If requested by Company, Contractor shall furnish documentary evidence as to the kind and
quality of materials and equipment. Contractor shall clearly mark all changes or
modifications to or deviations from the Drawings and Specifications to record any changes
made during the performance of the Work, all of which shall require the prior written
approval of Company. Unless otherwise provided in the applicable Contract Documents and
subject to the terms of Section 15 below, Contractor shall pay promptly when due all sales,
consumer, use, and other similar taxes (whether state, federal or local) which are due and
legally enacted when proposals are received or negotiations concluded, whether or not yet
effective or merely scheduled to go into effect, and shall secure and pay for the building
permit and other permits and governmental fees, licenses and inspections necessary for proper
execution and completion of the Work. Contractor shall indemnify, defend and hold harmless
Company from any Claims with respect to nonpayment of such taxes and fees and Company is
entitled, at its sole but reasonable discretion, to set up an escrow reserve or lockbox
account from which the amount of any such unpaid taxes or permit fees will be paid, with the amount of
such




 




			
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taxes and fees to be deducted from and paid out of the Contract Sum and to cause the
payment out of such account of all such taxes and fees and of all costs and expenses of such
account itself.




11.5 Contractor warrants to Company that Contractor is financially solvent, able to pay its
debts when due, and is possessed of sufficient working capital to complete the Work in
accordance with the terms of this Agreement. Contractor warrants that Contractor is
authorized to do business and is properly licensed by all necessary governmental and public
authorities having jurisdiction over Contractor during performance of the Work. Contractor
further warrants to Company that Contractor and its employees and subcontractors shall obtain
and maintain all necessary licenses and permits required for execution of the Work.




11.6 Contractor shall comply with and give notices required by Laws bearing on performance of
the Work. Contractor shall promptly notify Company if any Drawings or Specifications in any
Project, or in the Contract Documents are observed by Contractor to be at variance with any
Laws. Without in any way limiting the foregoing, it is the responsibility of Contractor to
ensure that all of Contractor’s Work complies with the requirements of the Occupational
Safety and Health Administration (OSHA) and that Contractor’s Subcontractors are also in
compliance therewith.




11.7 During the course of the Work, Contractor shall keep the Project free from accumulation
of any waste material, dust and rubbish attributable to the Work, and at the completion of
the Work, shall remove from the Project all of Contractor’s rubbish, implements and surplus
materials. Upon completion of the Work, Contractor shall leave the Project in “broom clean”
condition, and should Contractor fail to so clean the Project to Company’s satisfaction,
either during the course of the Work or upon completion thereof, Company shall have the right
(but not the obligation) to clean the Project and charge the cost of such cleaning to
Contractor.




11.8 All injuries or damage to property are to be documented in writing and reported to
Company immediately, and in no event later than five (5) days after such occurrence.




11.9 Contractor shall review, approve and submit to Company, shop drawings, product data,
samples and similar submittals required by the Contract Documents with reasonable promptness.
The Work shall be in accordance with approved submittals. When professional certification
of performance criteria of materials, systems or equipment is required by the Contract
Documents, Company shall be entitled to rely upon the accuracy and completeness of such
certifications.




11.10 Contractor shall provide Company, its authorized representative(s) and designees access
to the Work in preparation and progress wherever located, without limitation, subject to
compliance with applicable safety rules and procedures.




11.11 Contractor will take all commercially reasonable precautions to discover and locate any
Hazardous Condition at the Project. In the event that Contractor or any of Contractor Parties
encounter any Hazardous Condition that has not been rendered harmless in strict compliance
with all Laws, Contractor and all such other persons will immediately stop Work in the area
affected and immediately notify Company in writing. The Work in the affected area shall not be resumed
except by written agreement between Company and Contractor.




 




			
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11.12 It is understood and agreed that if Company gives Contractor written or oral notice, or
Contractor otherwise knows, or reasonably should know, of the presence or possible presence
or threat of any Hazardous Condition with respect to the Project, Contractor agrees to use
due care in respect to the Hazardous Condition while on the Project and will not take any
action that will or may result in or cause the Hazardous Condition to be released into the
environment, expose individuals, or otherwise threaten the environment. Contractor assumes
the risk of all Hazardous Conditions on the Project of which it is informed by Company or
otherwise knows or reasonably should know. If Contractor is not qualified to handle or work
near any Hazardous Condition, Contractor shall immediately notify Company in writing and
cease such Work on the Project. Remediation of any Hazardous Condition encountered at a Work
area or otherwise is not included in the definition of Work or included in the Contract Sum.




11.13 Contractor shall keep a competent superintendent and any necessary assistants on the
Project at all times during the performance of the Work. Contractor shall notify Company of
the name of the superintendent, and the superintendent shall not be changed except with the
written notice to the Company. The superintendent shall represent Contractor and all
communications given to the superintendent shall be as binding as if given to Contractor. It
shall be the duty of the superintendent to coordinate the Work of all Subcontractors.




11.14 Contractor shall restore to original condition those portions of the Project which were
not designated for alteration pursuant to the Project but which have been affected by
Contractor’s operations.




11.15 Contractor shall comply, at its own expense, with the provisions of the Fair Labor
Standards Act of 1938, as amended, and all other applicable federal, state and municipal
requirements and Laws applicable to Contractor as an employer of labor. Contractor agrees
that it will not discriminate against any employee or applicant for employment on account of
race, color, religion, sex, disability or national origin.




11.16 In no event shall Contractor store any construction material or equipment inside
Company’s Hub.




11.17 Contractor is an independent contractor to Company under this Agreement. Nothing in
this Agreement shall be deemed to create a relationship of employer-employee,
principal-agent, partner, or joint venture between Contractor and Company. Contractor shall
operate an independent business and agrees to be responsible for all of Contractor’s federal
and state and local taxes, withholding, social security, insurance, and other benefits. Upon
request, Contractor shall provide Company with satisfactory proof of independent contractor
status, including, without limitation, applicable business licenses.




11.18 If any Laws require any Work to be inspected, tested, or approved prior to, during or
after commencement of the Work, the Contractor shall furnish to Company certificates of
inspection, testing or approval.



12. CORRECTIONS IN THE WORK




 




			
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12.1 If Contractor discovers that any Work is inconsistent with the Contract Documents or
otherwise inconsistent with this Agreement, Contractor must notify Company in writing within
[***]. In addition, Contractor must correct any Work not in compliance with the Contract
Documents or this Agreement within [***] following Contractor’s knowledge of the
non-compliant Work. Contractor shall promptly remove, repair, replace or otherwise correct
any or all defective Work rejected by Company as not in compliance with the Contract
Documents, including, but not limited to, the Acceptance Criteria specified in Attachment 4.
In the event Company determines that the Work does not comply with the Contract Documents,
including, but not limited to, the Acceptance Criteria specified in Attach 4, Company shall
provide Contractor with written notice thereof and Contractor shall have no more than [***]
to correct the Work. In the event that the Contractor is unable or unwilling to correct the
Work within [***], Company may proceed in accordance with this Section 12. [***]. If
Contractor fails to promptly complete any removal, repair, replacement or correction for
which it is responsible, Company may, but shall not be obligated to, complete such Work, and
directly recover from Contractor the cost of the same, including storage and removal costs.
The Contract Time shall not be extended because of any delay caused by Contractor’s poor or
defective workmanship, or by Contractor’s failure to supply labor and/or materials that
conform to the requirements of the Contract Documents. If any part of Contractor’s Work
depends, for its proper execution or end result, upon the work of any other contractor or
supplier, Contractor shall inspect and promptly report in writing to Company any defect in
such work that renders it unsuitable for proper execution or end result, and Contractor shall
not proceed with any phase of the Work until authorized to do so by Company in writing.




12.2 In the event that Contractor fails to correct any defective work within [***] following
written notice thereof, except in cases of a safety or security emergency, Company may, at
any time thereafter and without cause, remedy any omission or deficiency in the Work that do
not meet the requirements of the Contract Documents, [***]. However, if Contractor has
actually commenced its correction of the defective work and is using and continues to use
commercially reasonable efforts to complete or correct the Work and such completion or
correction will take longer than [***] as contemplated in Article 12, then Contractor shall
have such additional time as is reasonably required to complete or correct the Work.




12.3 [***].




12.4 [***].




12.5 The obligations of Contractor under this Section 12 shall be in addition to, and not in
limitation of, any obligations which may be imposed upon him/her by any special guarantees or
by this Agreement or the Contract Documents or which may be otherwise implied by Laws.
Notwithstanding any provision of this Section 12 to the contrary, Contractor’s obligations to
remedy deficient Work shall be limited to the terms and conditions of the manufacturers’ or
suppliers’ warranties in any instance in which the deficiency arises out of defects in
commercially available hardware or software components obtained from third parties specified
and sourced in accordance with the Contract Documents. Contractor makes no warranties
whatsoever regarding such commercially available hardware and software components and any
additional services required to




 




			
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swap out defective hardware or software components shall be performed on such terms as the
parties shall mutually agree.




12.6 This Section 12 is subject to the terms and limitations set forth in Section 22 below.



13. DISPUTE RESOLUTION





13.1 Each Party shall notify the other Party, in writing, of a Dispute. A Dispute shall be
initiated, negotiated and resolved by an Authorized Representative of each Party. Contractor
and Company shall provide the other party with the name of its Authorized Representative in
writing within ten (10) Business Days of the execution of this Agreement. In the event of a
Dispute, either Party may seek to resolve the Dispute by utilizing the procedures set forth
below.




13.2 The Authorized Representative of the disputing Party shall initiate negotiations by
notifying the other Party’s Authorized Representative of the details of the Dispute, together
with the relief sought. The Authorized Representative of the party receiving notification of
the Dispute shall respond within five (5) Business Days of receipt of notification, setting
forth his or her position and the recommended resolution of such Dispute.




13.3 If the Dispute is not resolved through such negotiation within fifteen (15) Business
Days after initiation of the negotiation procedure, either Party may immediately request, in
writing, that the Dispute be submitted to a mutually agreeable advisor for mediation under
the Commercial Mediation Rules of the American Arbitration Association (“AAA”). The Party
requesting mediation shall suggest names of three (3) independent and impartial mediators,
and the other Party shall agree to, and select, one (1) of the mediators within three (3)
Business Days of a request for mediation. Neither Party shall unreasonably withhold
acceptance of a suitable mediator. The mediation shall last no longer than five (5) Business
Days, and shall be attended by the Authorized Representative of each Party. The Parties
shall share the mediator’s fee equally. If the Dispute has not been resolved through
mediation, then such mediation shall be terminated by a written declaration of the mediator.




13.4 If the Dispute has not been resolved through mediation, then upon the earlier of written
declaration of the mediator that such Dispute has not been resolved or fifteen (15) Business
Days after submission of a request for a mediation, either party may submit the Dispute to
binding arbitration, subject to the Commercial Arbitration Rules of the AAA then currently in
effect. The party requesting arbitration shall provide to the other party notice of the
request for arbitration, and names of three (3) independent and impartial arbitrators, and
the other party shall agree to, and select, one (1) of the arbitrators within three (3)
Business Days of a request for arbitration. Neither party shall unreasonably withhold
acceptance of a suitable arbitrator. The arbitration shall be governed by the Commercial
Arbitration Rules of the AAA. The parties stipulate and agree not to seek to introduce into
evidence, and not to compel the production of, documents prepared for, or statements made in
the course of settlement discussions including the confidential mediation process, in any
arbitration or subsequent litigation or administrative proceeding; provided, however, that
fully-initialed journal entries, and any written modifications and dispute settlement
agreements which have been fully signed by all necessary parties, may be introduced into
evidence. Any judgment upon the
award rendered by the arbitrator may be entered in any court having jurisdiction





 




			
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Omitted portions have been filed separately with the Commission.





					
	 	 	 	 	 
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thereof.
The arbitrator shall not have authority to award punitive damages. The prevailing party in
any such arbitration proceeding shall be entitled to reasonable attorneys’, consultants’
and/or experts’ fees, costs and expenses, in addition to any other relief to which such
prevailing party may be entitled in accordance with the terms of this Agreement. So long as
(a) the parties are working amicably to resolve a Dispute as contemplated in Sections
13.1-13.3 above, and (b) Company is paying undisputed amounts and placing disputed amounts
into escrow as explained in the next sentence, Contractor shall not delay or suspend any Work
and shall perform and carry on the portion of the undisputed work, and maintain all reports
all in accordance with the requirements of this Agreement. Company shall (x) place any
disputed payment amounts into escrow for distribution as determined based on the outcome of
the dispute resolution discussions, and (y) timely pay any amounts not in dispute.




13.5 Notwithstanding the provisions of this Section 13, and without waiving any other rights,
remedies or courses of action available under this Agreement, at law, in equity, or
otherwise:




13.5.1 A Party that believes that it is entitled to indemnification or contribution
under the terms of this Agreement may, at the sole option of the Party entitled to
indemnification or contribution, seek relief in a court having jurisdiction thereof
through any allowable procedure.




13.5.2 Either Party may seek from any court of competent jurisdiction, any interim or
provisional relief that is necessary to protect the rights or property of the Party,
including without limitation injunctive relief, pending the arbitrator’s final
decision or other resolution of the Dispute.




13.5.3 Either Party may cancel or terminate this Agreement in accordance with its
terms and conditions without being required to follow the dispute resolution
procedures set forth in this Section 13.




13.5.4 If the Dispute involves a monetary claim equal to or greater than [***], then
either Party may elect not to pursue the dispute resolution procedures set forth in
this Section 13, and may instead pursue any other rights, remedies or courses of
action available under this Agreement, at law, in equity, or otherwise.



14. PAYMENT





14.1 [***].




14.2 [***].




14.3 For all payment amounts exceeding $50,000, Company may elect to remit such payments to
Contractor through wire transfers of immediately available U.S. funds. Lesser amounts will
be
reimbursed either by wire transfer or by company check of immediately available U.S. funds
payable to the Contractor.





 




			
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Omitted portions have been filed separately with the Commission.





					
	 	 	 	 	 
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14.4 Should the Contractor fail to complete the Work within each or any Phase in a manner
prescribed in this Agreement, such that any FORNet System may not be used for the purposes
intended under the Contract Documents and this Agreement, then Contractor shall have time to
correct as prescribed in Section 12.1. [***].




14.5 If Contractor fails to complete the Work within each or any Phase in a manner prescribed
in the Contract Documents and this Agreement, Contractor has time to correct such failure as
described in Section 12.1. If Contractor is unable to correct such failure in accordance
with 12.1, Company in its sole discretion may declare Contactor in default of this Agreement.




14.6 Original invoices shall be submitted by Contractor consistent with the payment terms of
the Contract Documents, in accordance with invoicing procedures attached hereto as Attachment
5. Invoices for final payment [***] shall be submitted and paid only after [***].




14.7 Invoices submitted in proper form shall be paid within [***] from receipt. Contractor’s
invoices issued in connection with a Project shall reference this Agreement or, where
applicable, a Change Order, and shall include a detailed description of the Work actually
performed, and shall be accompanied by such documentation as Company may reasonably require
to verify amounts billed. Invoices shall be submitted to the address below with a copy
provided to the local market point of contact:




SPRINT

PO Box 10850

McLean, VA 22102

Attention: Accounts Payable




If requested by Company, Contractor shall send invoices electronically in a format compatible
with Company’s electronic invoicing process. Company will provide Contractor with Company’s
electronic process requirements, and any changes or modifications to such process, from time
to time. Company’s payments to Contractor shall be submitted to:




CONTRACTOR:

NextG Networks, Inc.

2216 O’Toole Avenue

San Jose, CA 95131

Attention: Accounts Receivable




14.8 If Company identifies a problem with an invoice within [***] of receipt, Company shall
provide Contractor with a written notice of Company’s objection and may withhold payment for
the portion of the invoice to which objection is made. If Company discovers a problem with
an invoice after payment, payment for the contested amount may be withheld from payment of
the next invoice submitted by Contractor for the same Project.




14.9 [***].





 




			
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14.10 The making of final payment of the Contract Sum shall not constitute a waiver by
Company for Claims arising from: a) liens, claims, security interests or encumbrances arising
out of any Contract and unsettled claims; b) failure of the Work to comply with the
requirements of the Contract Documents; or c) terms of any warranties contained in or
required by the Contract Documents or Laws. Acceptance of final payment by Contractor or
Subcontractor shall constitute a waiver of claims by that payee or anyone claiming by or
through them except those previously made in writing and identified by that payee as
unsettled at the time of final application for payment.




14.11 To the extent Contractor receives any during the course of performance of the Work,
Contractor’s final invoice shall be accompanied by all undelivered manufacturer’s maintenance
and operation instructions, schedules, guarantees, bonds, warranties, manufacturer’s
catalogs, bulletins, instructions, certificates of inspection and any other documents of any
nature whatsoever that are required or provided for by this Agreement.




14.12 The Parties agree to be bound only by the terms and conditions set forth in this
Agreement, and it is hereby expressly agreed that any terms and conditions on any Purchase
Order issued by Company inconsistent with the terms and conditions of this Agreement shall
not apply




14.13. No additional terms or conditions applicable to the provision of the Work and
incorporated in an invoice shall be binding upon Company. Payment of any such invoice, in
whole or in part, or any other action taken by Company in pursuance of its rights shall be
not be construed as acceptance of those terms and conditions that are incorporated into
Contractor’s invoice.



15. TAXES





15.1 The Parties shall comply with all federal, state, and local tax laws applicable to
transactions occurring under this Agreement. Contractor shall provide Company with a
completed Form W-9 for federal income tax reporting purposes before any partial or full
payments of the Contract Sum are made by Company to Contractor.




15.2 Contractor shall provide Company with Contractor’s sales tax registration number from
the state(s) in which goods and/or services provided under this Agreement are performed. If
Contractor is not currently registered for sales tax purposes, Contractor will register with
the state for sales tax purposes before any payments are made by Company to Contractor.




15.3 In order to comply with applicable sales and use tax laws, Contractor shall specify on
each invoice whether Work performed under this Agreement constitutes either (a) the
installation of tangible personal property; or (b) the construction of real property.




15.3.1 Contracts for installation of tangible personal property. If the Work
performed by Contractor is considered installation of tangible personal property,
Contractor shall be responsible for collecting from Company and remitting to the
taxing jurisdiction(s) sales or
use tax on all taxable charges made under this





 




			
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Omitted portions have been filed separately with the Commission.





					
	 	 	 	 	 
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Agreement. Contractor shall separately
state all taxable and nontaxable charges for services, materials, and freight provided
under this Agreement. Contractor shall separately state all sales and use taxes
collected on project charges, and the sales tax registration number under which the
taxes are remitted. However, Company shall not be responsible for such taxes for
which Company has provided Contractor with a valid and properly executed exemption
certificate. If Contractor fails to properly invoice Company for taxes on the
original invoice for goods and services provided under this Agreement, or promptly
correct such invoice, Company shall not be responsible for payment of such taxes to
Contractor. Company shall not be responsible for any taxes imposed on Contractor
arising from Contractor’s consumption of goods and services in connection with this
Agreement. Company shall not be responsible for any other taxes, fees, or other
charges of any kind.




15.3.2 Contracts for installation of real property. If the Work performed by
Contractor is considered construction of real property, Contractor shall be
responsible for paying applicable sales tax on all of Contractor’s purchases of
materials used or consumed in performance of this Agreement. Company shall not be
responsible for any taxes, fees or other charges of any kind.




15.4 The Parties shall cooperate with one another in minimizing tax expenses arising from
transactions occurring pursuant to this Agreement.



16 COMPLIANCE WITH LAWS





16.1 Contractor shall prepare and maintain such full and detailed accounts as may be
necessary for proper financial management under this Agreement and in accordance with
generally accepted accounting principles, as applicable.




16.2 If there is a Dispute, Contractor must provide Company, its internal and external
auditors, inspectors and regulators, access to Contractor’s data and records that are
directly relevant to the Work and relevant to resolving the Dispute, including audits,
examinations and inspections relating to, (a) the accuracy of charges and invoices, (b)
Contractor’s compliance with applicable laws or regulations, and (c) Contractor’s compliance
with safety procedures relating to its performance of the Work on a Project.



17 LIENS





17.1 Contractor will not permit any mechanics’, materialmen’s, or other liens to be filed by
any Subcontractor of Contractor. However, if any such lien shall at any time be filed,
Contractor shall have the right to contest the validity or the amount of any such lien but,
on the final determination of such contest, shall immediately pay any adverse judgment
rendered with all proper fees, costs and charges and shall have the lien released at its own
expense. If Contractor desires to contest any such lien, then prior to commencing such
contest, it will furnish Company with a bond in the amount and in the type required by
applicable Laws, which bond shall release the property from the lien and secure the payment
of such obligation to the Subcontractor.





 




			
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Omitted portions have been filed separately with the Commission.





					
	 	 	 	 	 
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17.2 Contractor shall submit with each application for partial or full payment of the
Contract Sum, evidence that all Subcontractors and any other person who might claim a
mechanic’s or materialman’s or other lien through Contractor, have been paid, by furnishing
with each such application for partial payment of the Contract Sum a partial release of lien
from such Subcontractor or other persons claiming a lien. With each such application for
payment, Contractor shall also furnish to Company Contractor’s own partial release of lien.
Upon making application for final payment of the Contract Sum, Contractor shall furnish
evidence that all Subcontractors and other such persons have been paid and shall also procure
for Company final releases of lien from all such Subcontractors and any other person who
could reasonably be expected to claim a lien through Contractor. In the event final payment
of the Contract Sum is made and liens are still filed against the Work Site for the Project,
Contractor shall either defend and hold Company harmless against the underlying claims or
refund to Company all monies that Company may be compelled to pay in discharging such lien,
including all costs and reasonable attorneys’ fees.



18. INSURANCE





18.1 Contractor shall purchase and maintain insurance policies issued by companies licensed
or authorized to transact business in the states where the Work is to be performed and who
hold a current rating of not less than A-, VII, according to Best’s Key Rating Guide.
Contractor’s insurance shall protect the Company Parties from claims under the Workers’
Compensation act and other employee benefit acts which are applicable, claims for damages
because of bodily injury, including death, and claims for damages, other than to the Work
itself, to person or property which may arise out of or result from Contractor’s operations
under the Agreement, whether such operations be by Contractor or by a Subcontractor or anyone
directly or indirectly employed by any of them. This insurance shall be written for not less
than limits of liability specified herein and shall include contractual liability insurance
applicable to Contractor’s obligations as provided herein.




18.2 Contractor’s insurance shall include:




18.2.1 Worker’s Compensation. Insurance shall be provided as required by any
applicable law or regulation.




18.2.2 Employer’s Liability Insurance shall be provided in amounts not less than:




	 	a.	 	$1,000,000.00 each accident for bodily
injury by accident; and
	 
	 	b.	 	$1,000,000.00 policy limit for bodily
injury by disease; and
	 
	 	c.	 	$1,000,000.00 each employee for bodily
injury by disease.






18.2.3 Commercial General Liability insurance (including but not limited to,
contractual liability insurance, with an occurrence limit of $1,000,000 for any one
occurrence, $2,000,000 General Aggregate and $2,000,000 Products Completed Operations
Aggregate).




18.2.4 Automobile Liability Insurance, including coverage for all owned, hired and
non-owned automobiles, with limits of liability not less than $1,000,000 combined
single limit each accident for bodily injury and property damage.




18.2.5 Professional Liability Insurance in an amount equal to $2,000,000 per
occurrence.





 




			
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Omitted portions have been filed separately with the Commission.





					
	 	 	 	 	 
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18.2.6 Umbrella Insurance, providing excess coverage in the amount of $5,000,000.00
and providing such additional coverage for all of the risks and obligations of
Contractor described in this Section 18.




18.3 If there is an exposure or injury to Contractor’s employees under the U.S.
Longshoremen’s and Harbor Worker’s Compensation Act, the Jones Act or under Laws applicable
to maritime employees, equivalent coverage shall be included for such injuries or claims.




18.4 The Commercial General Liability insurance shall cover all operations by or on behalf of
Contractor, providing insurance on a per occurrence basis for bodily injury liability and
property damage liability for the limits of liability indicated above and including coverage
for:




     a) premises and operations; and




     b) products and completed operations; and




     c) contractual liability insuring the obligations assumed by Contractor in this
Agreement; and




     d) broad form property damage (including completed operations); and




     e) explosion, collapse and underground hazards; and




     f) personal injury liability.




If the Commercial General Liability policy does not have an endorsement providing that the
general aggregate limit applies separately to each Project, or if defense costs are included
in the general aggregate limit, then the required aggregate limits shall be $4,000,000.




Company and Company Parties shall be named as additional insureds, under the occurrence form
Commercial General Liability, Auto Liability and Umbrella Liability policies. The policies
shall stipulate that the insurance afforded the additional insureds shall apply as primary
insurance and that any other insurance carried by Company and Company Parties will be excess
only and will not contribute with this insurance. Each insurance policy shall contain a
waiver of subrogation in Company’s favor. Contractor shall require that its subcontractors
purchase and maintain insurance in the amounts and coverages substantially similar to those
described in this Section 18. Contractor shall require that each subcontractor name Company
and Company Parties as additional insureds.




Proof of insurance in the form of a Certificate of Insurance (ACORD form 25S or equivalent)
evidencing the insurance required by each Project, shall be furnished by Contractor before
any Work under any Project is commenced, and within fifteen (15) days of renewal or
replacement of any policy required by this Agreement. There will be no cancellation or
reduction of coverage or material alteration without Contractor providing (30) days prior
written notice to Company. The certificates of insurance shall also confirm that Company and
Company Parties have been named as additional insureds. Notwithstanding anything to the
contrary contained in this Agreement, acceptance of certificates of insurance by Company
shall in no way waive or limit any insurance, indemnity, or other obligations of Contractor.
All certificates of insurance shall be addressed to:





 




			
	***	 	Confidential treatment requested pursuant to a request for confidential treatment filed with the Securities and Exchange Commission.
Omitted portions have been filed separately with the Commission.





					
	 	 	 	 	 
	     Nextel Proprietary & Confidential
	 	-21-
	 	MCA/BDA -2.11.05






 









 





CONFIDENTIAL TREATMENT REQUESTED BY NEXTG NETWORKS, INC.





Sprint

2001 Edmund Halley Drive

Reston, VA 20191

Attn: Supply Chain Management — Contract Administrator




18.7 In the event Contractor fails to maintain any insurance coverage required under this
Agreement, Company may maintain such coverage and charge the expense to Contractor, or
terminate this Agreement.




18.8 Except to the extent caused by the intentional acts of Company, Contractor waives all
rights against Company and Company Parties for damages caused by fire or other perils to the
extent covered by property insurance obtained pursuant to this section or any other property
insurance applicable to any Work. Contractor shall require similar waivers in favor of
Company by all Subcontractors.




18.9 Contractor shall be responsible for the welfare of any materials and equipment provided
by Company at a Project pursuant to the Contract Documents until such time as control of such
Project has been fully transferred to Company.



19. INDEMNIFICATION





19.1 Contractor shall indemnify, defend and hold Company and Company Parties harmless from
and against any and all Claims arising out of or in connection with and to the extent caused
by: (i) Contractor’s breach of any term or condition of this Agreement or any of the Contract
Documents, (ii) defective performance of, or failure to perform any Work, (iii) any
infringement of patent and/or other intellectual property right in connection with the Work
unless a particular design, process or product of a particular manufacturer is required by
the Contract Documents (and provided that the Contractor lacks reason to believe that there
is an infringement of patent or other intellectual property rights), (iv) the failure of
Contractor or any of Contractor Parties to comply with all Laws in connection with Hazardous
Condition (v) any act or omission by Contractor or any of Contractor Parties that worsens,
releases, or creates any Hazardous Condition, (vi) the transport or disposal of any materials
which created or would create a Hazardous Condition on or off a Project, (vii) any negligent
or willful act or omission of Contractor or Contractor Parties, or (viii) any damage to
persons or property resulting from the acts or omissions of Contractor or Contractor Parties.
Company and each of Company Parties shall have the right to defend its own interest in
connection with any such Claims at such parties’ sole cost and expense and such election to
so defend its own interest shall in no way relieve Contractor of its obligations under this
Section 19.1. The duties described in this Paragraph 19 shall survive the termination of
this Agreement. The indemnity, defense, and hold harmless obligations in this Section 19.1
does not apply to the extent any Claim arises out of or is related to the acts or omissions,
whether negligent or intentional, of Company or Company Parties.




19.2 In the event Claims to which the indemnities of Section 19.1 apply are brought against
any person or entity indemnified under Section 19.1 by an employee of Contractor or any of
Contractor
Parties, the indemnification obligations provided in Section 19.1 shall not be limited by a
limitation





 




			
	***	 	Confidential treatment requested pursuant to a request for confidential treatment filed with the Securities and Exchange Commission.
Omitted portions have been filed separately with the Commission.





					
	 	 	 	 	 
	     Nextel Proprietary & Confidential
	 	-22-
	 	MCA/BDA -2.11.05






 









 





CONFIDENTIAL TREATMENT REQUESTED BY NEXTG NETWORKS, INC.





on amount or type of damages, compensation or benefits payable by or for
Contractor or any of Contractor Parties under Worker’s or Workmen’s Compensation acts,
disability benefit acts or other employee benefit acts.



20. TERMINATION





20.1 [***].




20.2 [***].




20.3  [***]




20.3.1 [***]




20.3.2 [***]




20.3.3 [***]




20.3.4 [***]




20.3.5 [***]




20.3.6 [***]




20.4  [***].




20.5  [***].




20.6  [***].




20.7  [***].




20.8 Force Majeure Termination Events. Either Party may terminate the affected portion of a
Project upon not less than  [***] written notice to the other Party if (i) any Force Majeure
Event applicable to the other Party results in that other Party’s inability to perform its
obligations for that Project for a period of  [***] or more; or (ii) any Force Majeure Event
applicable to the terminating Party results in the terminating Party’s inability to perform
its obligations for that Project for a period of [***]. Upon any such cancellation, Company
shall pay any invoices for milestones earned or achieved by Contractor up to and including
the effective date of termination, and upon such payment each Party shall thereafter be
relieved of all further liability with respect to the cancelled portion of the Project except
that a Party shall continue to be liable for any breaches that occurred and were not cured
prior to the effective date of termination





 




			
	***	 	Confidential treatment requested pursuant to a request for confidential treatment filed with the Securities and Exchange Commission.
Omitted portions have been filed separately with the Commission.





					
	 	 	 	 	 
	     Nextel Proprietary & Confidential
	 	-23-
	 	MCA/BDA -2.11.05






 









 





CONFIDENTIAL TREATMENT REQUESTED BY NEXTG NETWORKS, INC.




21. PROTECTION OF PERSONS AND PROPERTY





21.1 Contractor shall be responsible for initiating, maintaining, and supervising all safety
precautions and programs in connection with the performance of the Work on any Project.
Contractor shall take reasonable precautions for safety of and shall provide reasonable
protection to prevent damage, injury or loss to:




a) employees on the Work site and other persons who may be affected thereby;




b) the Work and materials and equipment to be incorporated therein; and




c) other property at the Project or adjacent thereto.




21.2 Contractor shall give notices and comply with Laws bearing on safety of persons and
property and their protection from damage, injury or loss. Contractor shall promptly remedy
damage and loss to property at the Site caused in whole or in part by Contractor, or any of
Contractor’s Parties, except to the extent the damage or loss was attributable to acts or
omissions of Company or any Company Parties.




21.3 If an emergency arises during the conduct of its Work hereunder where Contractor
reasonably determines that there is a substantive and tangible threat to the environment or
to the public health and safety of persons or property and where it is impossible for
Contractor to obtain immediate authorization from Company regarding corrective actions,
Contractor shall take reasonable steps to prevent threatened damage, injury or loss to
persons or property and shall notify Company immediately of such corrective action.
Contractor shall cease or terminate Work upon Company’s request until all such threats have
been resolved to the Company’s satisfaction.



22. GUARANTEE





22.1 The Work included under each Project is to be completed in accordance with the
applicable Contract Documents to the reasonable satisfaction of the Company and any Disputes
with respect thereto shall be resolved in accordance with Section 13. Notwithstanding
anything to the contrary herein, all Work executed under each Project shall be guaranteed
free from defective materials and workmanship for a period of [***] from the date of Final
Completion. To the extent Contractor provides any equipment or software under the terms of
this Agreement, all equipment and software warranties are passed through from the original
equipment manufacturer/software provider, are solely between Company and such
manufacturers/providers, and Contractor makes no additional warranties on such equipment and
software whatsoever.




22.2 Neither party, nor any person affiliated with or in a contractual relationship
with a party shall be liable to the other party for special, punitive, exemplary,
consequential, incidental or indirect losses or damages as a result of the performance or
nonperformance of its obligations under this Agreement, or its acts or omissions related to
this Agreement or its use of any Network or any FORNet System or related facilities whether
or not arising from sole, joint or concurrent negligence, strict liability, tort, contract or
violation of law or otherwise, even if the party has been advised of the possibility of such
damages. EXCEPT FOR ANY LIABILITY WITH RESPECT TO CLAIMS BASED ON BODILY INJURY, DAMAGE TO
TANGIBLE PROPERTY OR ANY VIOLATION OF THE LAW COVERED BY ARTICLE XIX ABOVE, THE LIABILITY OF
EACH PARTY
ARISING FROM DAMAGES UNDER THIS AGREEMENT SHALL BE





 




			
	***	 	Confidential treatment requested pursuant to a request for confidential treatment filed with the Securities and Exchange Commission.
Omitted portions have been filed separately with the Commission.





					
	 	 	 	 	 
	     Nextel Proprietary & Confidential
	 	-24-
	 	MCA/BDA -2.11.05






 









 





CONFIDENTIAL TREATMENT REQUESTED BY NEXTG NETWORKS, INC.





LIMITED TO AN AMOUNT EQUAL TO TWO (2)
TIMES THE TOTAL AMOUNT WHICH COMPANY IS OBLIGATED TO PAY FOR THE PROJECT THAT IS THE SUBJECT
OF THE DISPUTE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE PRECEDING SENTENCE,
CONTRACTOR’S INSURANCE OBLIGATIONS IN ACCORDANCE WITH PARAGRAPH 18 ABOVE IS NOT IN ANYWAY
LIMITED BY THE LIMITATION OF LIABILITY PROVISION DESCRIBED IN THE PRECEDING SENTENCE.



23. CONFIDENTIALITY





23.1 Confidentiality. In the absence of a separate Confidentiality Agreement between
the parties, if either party provides confidential information to the other in writing and
identified as such or if in the course of performing under this Agreement a party learns
confidential information, the receiving party shall use such information solely in
furtherance of the objectives contemplated in this Agreement and shall protect the
confidential information from disclosure to third parties with the same degree of care
accorded its own confidential and proprietary information; provided, however, that the
parties shall each be entitled to provide such confidential information to their respective
directors, officers, members, managers, employees, agents, contractors, consultants,
representatives, affiliates, Company Parties, Contractor Parties, financial institutions,
underlying facility owners, potential assignees (who are bound by a written agreement
restricting use and disclosure of confidential information) and representatives of
affiliates, in each case whose access is reasonably necessary in connection with either
parties performance of and compliance with this Agreement. Each such recipient of
confidential information shall be informed by the party disclosing confidential information
of its confidential nature, and shall be directed to treat such information confidentially
and shall agree to abide by these provisions. In any event, each party shall be liable (with
respect to the other party) for any breach of this provision by any person to whom that party
discloses confidential information. The terms of this Agreement (but not its execution or
existence) shall be considered confidential information for purposes of this Article.
Notwithstanding any other provision herein, neither Contractor nor Company shall be required
to hold confidential any information that: (a) becomes publicly available other than through
the recipient; (b) is required to be disclosed by a governmental, regulatory authority, or
judicial order, rule, or regulation or proceedings with respect to this Agreement or a
party’s obligations as a publicly held company (provided that, prior to any such disclosure,
the other party shall have been provided a reasonable opportunity to recommend steps to
preserve the confidential nature of the information, including seeking confidential treatment
from the Securities and Exchange Commission or, in the case of judicial or regulatory
proceedings, seeking a protective order therefore); (c) is independently developed by the
disclosing party; (d) becomes available to the disclosing party without restriction from a
third party; or (e) is required by its lender and is given to such lender on a confidential
basis.




23.2 Survival. These obligations shall survive expiration or termination of this
Agreement for a period of [***].




23.3 Trade Dress Usage. Neither party shall use the name, trade name, service mark,
or trademark of the other in any promotional or advertising material without the prior
written consent of the other.



24. OWNERSHIP OF PROPERTY






 




			
	***	 	Confidential treatment requested pursuant to a request for confidential treatment filed with the Securities and Exchange Commission.
Omitted portions have been filed separately with the Commission.





					
	 	 	 	 	 
	     Nextel Proprietary & Confidential
	 	-25-
	 	MCA/BDA -2.11.05






 









 





CONFIDENTIAL TREATMENT REQUESTED BY NEXTG NETWORKS, INC.





24.1 Title to all property owned by Company and furnished to Contractor shall remain in
Company. Any property owned by Company and in Contractor’s possession or control shall be
used only in the performance of Work unless authorized in writing by Company. Contractor
shall adequately protect such property, and shall deliver or return to Company or otherwise
dispose of it as directed by Company.




24.2 No licenses, express or implied, under any patents, copyrights, trademarks or other
intellectual property rights are granted by Company to Contractor or by Contractor to
Company. As between the Parties, all confidential information and intellectual property
furnished by one Party to the other Party or any other third party related to this Agreement
or otherwise accessed in relation to this Agreement belong to the furnishing Party and will
remain the furnishing Party’s sole and exclusive property.



25. NOTICES





25.1 All notices from one party to the other required by this Agreement shall be in writing
and shall be made by hand delivery, or by first class mail, postage prepaid, return receipt
requested, or by telex, or by telecopier, or by reliable overnight courier addressed as
follows:




To Contractor:

NextG Networks, Inc.

2216 O’Toole Avenue

San Jose, CA 95131

Attention: General Counsel




To Company:




Sprint

2001 Edmund Halley Drive

MS: VARESP0401-A4023

Reston, VA 20191-3436

Attn: Real Estate Law Group




With a copy to:

Sprint

2001 Edmund Halley Drive

Reston, VA 20191-3436

Attention: Supply Chain Management




Notices shall be deemed served or delivered to the addressee or its office when received at
the address for notice specified above when hand delivered, upon confirmation of sending when
sent by telex or by telecopier, on the day after being sent when sent by overnight delivery
service, or three (3) days after deposit in the mail when sent by U.S. mail.





 




			
	***	 	Confidential treatment requested pursuant to a request for confidential treatment filed with the Securities and Exchange Commission.
Omitted portions have been filed separately with the Commission.





					
	 	 	 	 	 
	     Nextel Proprietary & Confidential
	 	-26-
	 	MCA/BDA -2.11.05






 









 





CONFIDENTIAL TREATMENT REQUESTED BY NEXTG NETWORKS, INC.




26. SUPPLIER DIVERSITY





26.1 Company is committed to equal employment and supplier diversity. As part of this
commitment, it is the policy of Company that Diverse Suppliers shall have the maximum
practicable opportunity to participate in performance of contracting between Company and its
Contractors. Contractor agrees to carry out this policy in the award of subcontracts (to the
extent permitted hereunder) to Diverse Suppliers to the fullest extent consistent with
efficient contract performance.




26.2 Contractor agrees to establish and conduct a program, which will enable Diverse
Suppliers to be considered fairly as subcontractors under Contractor’s contracts with
Company. In order to establish and conduct such a program, Contractor shall:




	 	(a)	 	Assist Diverse Suppliers by arranging contracting opportunities,
quantities, specifications and delivery schedules so as to facilitate the
participation by such business concerns.
	 
	 	(b)	 	Provide adequate and timely consideration of the potentialities of
Diverse Suppliers in all “make-or-buy” decisions.
	 
	 	(c)	 	Designate a liaison manager who shall be responsible for interfacing
with and administering subcontracting opportunities for Diverse Suppliers.
	 
	 	(d)	 	Counsel and discuss subcontracting opportunities with representatives
of Diverse Suppliers.
	 
	 	(e)	 	Maintain records showing (i) procedures adopted by Contractor to
comply with the policy and procedures set forth in this Agreement, including the
establishment of a source list of Diverse Suppliers; (ii) awards to Diverse
Suppliers on the source list; and (iii) specific efforts to identify and award
contracts to Diverse Suppliers.
	 
	 	(f)	 	Cooperate with Company representatives in any studies and surveys of
Contractor’s Diverse Suppliers procedures and practices that Company may conduct
periodically.






26.3 Each year of the Term, Contractor is required to use commercially reasonable efforts to
spend a minimum of ten percent (10%) of the total of that year’s value of this Agreement with
Diverse Suppliers during the Term. Contractor shall provide quarterly reports describing the
subcontractors and the total amount subcontracted to each pursuant to the terms of this
Agreement throughout the Term. Company recognizes and agrees that the spending requirement
referenced above may be achieved by using subcontractors who do not perform work directly for
Company with respect to this Agreement. Contractor shall satisfy the requirements of this
Section 26.3 by acquiring goods and services from Diverse Suppliers in an aggregate amount of
ten (10%) percent of the dollar value of this Agreement as part of Contractor’s overall
procurement spending.




26.4 Within thirty (30) calendar days of the Effective Date, Contractor shall provide Company
with a strategic plan outlining the methodology to be used by Contractor to meet its
contractual obligation to Company regarding the use of Diverse Suppliers. The plan must
include implementation of the Contractor’s diversity subcontracting strategy. Contractor
shall prepare and submit reports detailing Contractor’s actual performance of the policy and
procedures of this Agreement within fifteen (15) calendar days of the end of each quarter.
Such reports shall include the total amount of invoices expressed in dollars paid by Company
to Contractor for products and services under this Agreement as well as the total amount
expressed in dollars of subcontracts





 




			
	***	 	Confidential treatment requested pursuant to a request for confidential treatment filed with the Securities and Exchange Commission.
Omitted portions have been filed separately with the Commission.





					
	 	 	 	 	 
	     Nextel Proprietary & Confidential
	 	-27-
	 	MCA/BDA -2.11.05






 









 





CONFIDENTIAL TREATMENT REQUESTED BY NEXTG NETWORKS, INC.





between Contractor and any Diverse Suppliers during that
quarter. Contractor shall submit such reports in a form prescribed by Company.




26.5 Contractor’s failure to comply in good faith with this provision of this Agreement,
including Contractor’s failure to provide quarterly reports or to cooperate in any
investigation conducted by Company of Contractor’s performance under this provision of the
Agreement, shall be deemed a material breach of this Agreement by Contractor as well as any
other contract between Company and Contractor.



27. AFFILIATE PURCHASE RIGHTS





27.1 Contractor will perform the Work under this Agreement and any existing Purchase Orders
to any Company Parties upon request. Contractor will negotiate with Company Parties in good
faith for Purchase Orders covering Work not governed by an existing Purchase Order,
consistent with this Agreement. All references to Company in this Agreement refer equally to
Company or the Company Parties executing a particular Purchase Order. Company and Company
Parties may pool any applicable transaction volumes such that any tiered rate structure
hereunder is applied to the aggregate volume.




27.2 Only the entity purchasing Work under the Purchase Order incurs any obligation or
liability to Contractor under that Purchase Order or this Agreement. Contractor will provide
separate invoicing to Company and any Company Parties purchasing under this Agreement.
Contractor will accept separate payment from Company and Company Affiliates.




27.3 If Company divests a Company Parties or other portion of its business (“Divested
Business”) that is party to any Contract Documents or accepted Purchase Orders related to
any Project subject to this Agreement, such Divested Business will be entitled to continue
purchasing Work under this Agreement and the applicable Contract Documents for the remaining
term of this Agreement. The Divested Business will be solely responsible for any services
and deliverables purchased by the Divested Business after the divestiture.



28. MISCELLANEOUS





28.1 The Agreement shall be governed by the Laws of the Commonwealth of Virginia without
reference to its conflicts of law principles.




28.2 [***].




28.3 This Agreement and any of the Contract Documents may be executed (i) electronically in
accordance with the written instructions and policies implemented by Company and delivered to
Contractor from time to time or (ii) by facsimile copy forwarded to the other party (with
confirmation of the time and date sent printed on the facsimile copy). This Agreement and
any of the Contract Documents may be executed in two or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and the same
instrument.





 




			
	***	 	Confidential treatment requested pursuant to a request for confidential treatment filed with the Securities and Exchange Commission.
Omitted portions have been filed separately with the Commission.





					
	 	 	 	 	 
	     Nextel Proprietary & Confidential
	 	-28-
	 	MCA/BDA -2.11.05






 









 





CONFIDENTIAL TREATMENT REQUESTED BY NEXTG NETWORKS, INC.





28.4 This Agreement shall inure to the benefit of, and shall be binding upon the Parties
hereto and their respective successors and permitted assignees, except as prohibited by the
express terms of this Agreement. Any assignment of the Contract Sum shall be made in
accordance with Section 5.4.




28.5 Company and Contractor each represent that the individual signing this Agreement on its
behalf has the power and authority to enter into this Agreement and that this Agreement
constitutes a valid and binding obligation of such party. Upon request, Contractor shall
execute and deliver to Company a certificate of compliance in form as supplied to Contractor
from time to time, upon Company’s request, certifying that Contractor is in full compliance
with the terms and conditions of this Agreement.




28.6 If any term or condition of this Agreement or Contract Documents is found unenforceable,
the remaining terms and conditions will remain binding upon the Parties as though said
unenforceable provision were not contained herein.




28.7 This Agreement, together with the Contract Documents, constitutes the complete agreement
between Company and Contractor with respect to the subject matter hereof and supersedes any
prior oral or written negotiations or agreements relating to the Work. In the event there is
a conflict between the Proposal and other aspects of this Agreement, this Agreement shall
prevail. Any amendments to this Agreement must be in writing and executed by both Parties.



Signature page to follow.






 




			
	***	 	Confidential treatment requested pursuant to a request for confidential treatment filed with the Securities and Exchange Commission.
Omitted portions have been filed separately with the Commission.





					
	 	 	 	 	 
	     Nextel Proprietary & Confidential
	 	-29-
	 	MCA/BDA -2.11.05






 









 






CONFIDENTIAL TREATMENT REQUESTED BY NEXTG NETWORKS, INC.





WITNESS the execution hereof as of the date first written above.



	 	 	 	 	 	 	 	 	 
	 	 	 	 	COMPANY:	 	 
	 
	 	 	 	 	 	 	 	 
	/s/ Illegible
 



	 	 	 	 	 	 	 	 
	
(Witness)

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:
	 	/s/ Karen M. Holman	 	 
	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	Name: Manager — SCM	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	Title: Karen M. Holman	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	Date: September 1, 2006	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	NEXTG NETWORKS, INC.	 	 
	 
	 	 	 	 	 	 	 	 
	/s/ Ronald S. Kramer
 



	 	 	 	 	 	 	 	 
	
(Witness)

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:
	 	/s/ John Georges	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	     John Georges

     President	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	Date: August 9, 2006	 	 







	 	 	 	ATTACHMENTS
	 
	 	1	 	SCOPE OF WORK
	 
	 	2	 	SAMPLE PURCHASE ORDER FORM
	 
	 	3	 	SAMPLE CHANGE ORDER
	 
	 	4	 	FORNetTM SYSTEM ACCEPTANCE CRITERIA AND
TESTING PROCEDURES
	 
	 	5	 	INVOICING PROCEDURES







 




			
	***	 	Confidential treatment requested pursuant to a request for confidential treatment filed with the Securities and Exchange Commission.
Omitted portions have been filed separately with the Commission.





					
	 	 	 	 	 
	     Nextel Proprietary & Confidential
	 	-30-
	 	MCA/BDA -2.11.05






 









 





CONFIDENTIAL TREATMENT REQUESTED BY NEXTG NETWORKS, INC.




ATTACHMENT 1




SCOPE OF WORK




[specific to each FORNet LICENSE]




THIS FORM MAY BE CHANGED BY COMPANY AT COMPANY’S DISCRETION

ATTACHMENT 2




SAMPLE OF A PURCHASE ORDER






 




			
	***	 	Confidential treatment requested pursuant to a request for confidential treatment filed with the Securities and Exchange Commission.
Omitted portions have been filed separately with the Commission.





					
	 	 	 	 	 
	     Nextel Proprietary & Confidential
	 	-31-
	 	MCA/BDA -2.11.05






 









 





CONFIDENTIAL TREATMENT REQUESTED BY NEXTG NETWORKS, INC.



	 	 	 	 	 	 	 	 	 	 	 	 	 
	Jul-13-04
	 	05:17
	 	From-NEXTEL
	 	8138064003
	 	T-680
	 	P.01/01
	 	F-540






					
	 	 	 	 	 
	
	 	Purchase Order
	 	 








 
 

2001
& 2003 Edmund Halley Dr.

Reston VA 20191

United States







	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	Dispatch via Print	 
	 	Purchase Order	 	Date	 	Revision	 	Page	 
	 	 	 
	 	 
	 	 	 	 	 	1	 
	 	 	 
	 	Payment Terms
	 	Freight Terms	 	 	 	Ship via	 
	 	NET 30
	 	Origin	 	 	 	Routing Gu	 
	 	 	 
	 	Buyer
	 	Phone	 	 	 	Currency	 
	 	 
	 	 	 	 	 	USD	 
	 	 	 










	 	 	 	 	 	 	 
	 

	 	 	 	Ship To:	 	26.046388888889-80.222222222222
	 

	 	Vendor: 000000
	 	 	 	United States
	 
	 	 	 	 	 	 
	 

	 	United States
	 	Bill To:
	 	PO BOX 10850
	 

	 	 	 	 	 	McLean VA 22102-8850
	 

	 	 	 	 	 	United States






	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Tax Exempt? N	 	Tax Exempt ID:	 	 	Replenishment Option: Standard	 	 	 	 	 	 	 	 	 
	Line-Sch	 	Item/Description	 	 	Mfg ID	 	Quantity UOM	 	PO Price	 	 	Extended Amt	 	 	Due Date	 
	 
	1- 1
	 	 	 	 	 	 	 	EA	 	 	1.00	 	 	 	 	 	 	 	07/30/2004	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	Schedule Total	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	Item Total	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	2- 1
	 	 	 	 	 	 	 	EA	 	 	1.00	 	 	 	 	 	 	 	07/30/2004	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	Schedule Total	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	Item Total	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	Total PO Amount	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 





	 	 	 	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	 

	 	 

Authorized Signature
	 	 








 




			
	***	 	Confidential treatment requested pursuant to a request for confidential treatment filed with the Securities and Exchange Commission.
Omitted portions have been filed separately with the Commission.





					
	 	 	 	 	 
	     Nextel Proprietary & Confidential
	 	-32-
	 	MCA/BDA -2.11.05






 









 





CONFIDENTIAL TREATMENT REQUESTED BY NEXTG NETWORKS, INC.





THIS FORM MAY BE CHANGED BY COMPANY AT COMPANY’S DISCRETION

ATTACHMENT 3




SAMPLE OF A CHANGE ORDER




													
	 	 	 	 	 	 	 	 	 	 	 	 	 
	Jul-13-04
	 	04:58
	 	From-NEXTEL
	 	8138064003
	 	T-678
	 	P.01/01
	 	F-538






					
	 	 	 	 	 
	
	 	Purchase Order
	 	 








 
 

2001
& 2003 Edmund Halley Dr.

Reston VA 20191

United States







	 	 	 	 	 	 	 	 	 
	 	CHANGE ORDER – REPRINT	 	Dispatch via Print	 
	 	Purchase Order	 	Date	 	Revision	 	Page	 
	 	 	 
	 	 
	 	 	 	 	 	1	 
	 	 	 
	 	Payment Terms
	 	Freight Terms	 	 	 	Ship Via	 
	 	NET 30
	 	Origin	 	 	 	Routing Gu	 
	 	 	 
	 	Buyer
	 	Phone	 	 	 	Currency	 
	 	 
	 	 	 	 	 	USD	 
	 	 	 










	 	 	 	 	 	 	 
	 

	 	 	 	Ship To:	 	28.360016666667-81.559988888889
	 

	 	Vendor: 00000
	 	 	 	United States
	 
	 	 	 	 	 	 
	 

	 	United States
	 	Bill To:
	 	PO BOX 10850
	 

	 	 	 	 	 	McLean VA 22102-8850
	 

	 	 	 	 	 	United States






	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Tax Exempt? N	 	Tax Exempt ID:	 	 	Replenishment Option: Standard	 	 	 	 	 	 	 	 	 
	Line-Sch	 	Item/Description	 	 	Mfg ID	 	Quantity UOM	 	PO Price	 	 	Extended Amt	 	 	Due Date	 
	 
	1- 1
	 	 	 	 	 	 	 	EA	 	 	1.00	 	 	 	 	 	 	 	07/01/2004	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	Schedule Total	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	Item Total	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	2- 1
	 	 	 	 	 	 	 	1.00 EA	 	 	 	 	 	 	 	 	 	 	07/01/2004	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	Schedule Total	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	Item Total	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	3- 1
	 	 	 	 	 	 	 	EA	 	 	1.00	 	 	 	 	 	 	 	07/30/2004	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	Schedule Total	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	Item Total	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	4- 1
	 	 	 	 	 	 	 	EA	 	 	1.00	 	 	 	 	 	 	 	07/30/2004	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	Schedule Total	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	Item Total	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	Total PO Amount	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 





	 	 	 	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	 

	 	 

Authorized Signature
	 	 








 




			
	***	 	Confidential treatment requested pursuant to a request for confidential treatment filed with the Securities and Exchange Commission.
Omitted portions have been filed separately with the Commission.





					
	 	 	 	 	 
	     Nextel Proprietary & Confidential
	 	-33-
	 	MCA/BDA -2.11.05






 









 





CONFIDENTIAL TREATMENT REQUESTED BY NEXTG NETWORKS, INC.




ATTACHMENT 4




FORNet SYSTEM ACCEPTANCE CRITERIA

AND TESTING PROCEDURES





The parties agree that the FORNet System is constructed and activated, and the following
conditions have been satisfied:




[***]



By the signatures below, Company acknowledges that the foregoing items have been delivered by
Contractor, and Contractor and Company agree that the Acceptance Date determined pursuant to
                     shall be as set forth below.



	 	 	 	 	 
	Acceptance Date:
	 	 	 	 
	 

	 	 

	 	 






	 	 	 	 	 	 	 	 	 	 	 	 	 
	CONTRACTOR

	 	 	 	 	 	COMPANY
	 	 	 	 	.	 
	 

	 	 

	 	 	 	 	 	 

	 	 	 	 






	 	 	 	 	 	 	 	 	 	 	 
	By:

	 	 	 	 	 	By:	 	 	 	 
	Name:

	 	 

	 	 	 	Name:
	 	 

	 	 
	Title:

	 	 	 	 	 	Title:	 	 	 	 








 




			
	***	 	Confidential treatment requested pursuant to a request for confidential treatment filed with the Securities and Exchange Commission.
Omitted portions have been filed separately with the Commission.





					
	 	 	 	 	 
	     Nextel Proprietary & Confidential
	 	-34-
	 	MCA/BDA -2.11.05






 









 





CONFIDENTIAL TREATMENT REQUESTED BY NEXTG NETWORKS, INC.




ATTACHMENT 5: INVOICING PROCEDURES




All invoices MUST contain the following information:


[***]




Additional Invoice Instructions: 




In addition to the requirements listed above and those contained in the applicable Purchase Order,
please note the following instructions:


[***]




Attached is a sample invoice for your reference. To avoid any potential payment delays and to
ensure compliance with these new requirements, please send sample invoices for review and approval
by your Nextel Buyer.



Additionally, in order to facilitate payment, Company encourages payment via direct deposit.





 




			
	***	 	Confidential treatment requested pursuant to a request for confidential treatment filed with the Securities and Exchange Commission.
Omitted portions have been filed separately with the Commission.





					
	 	 	 	 	 
	     Nextel Proprietary & Confidential
	 	-35-
	 	MCA/BDA -2.11.05






 









 





CONFIDENTIAL TREATMENT REQUESTED BY NEXTG NETWORKS, INC.




SAMPLE INVOICE




	 	 	 
	 

	 	INVOICE DATE

INVOICE NUMBER
	 
	 	 
	 

	 	VENDOR NAME
	 

	 	VENDOR’S NEXTEL ID #
	 

	 	VENDOR CONTACT
	 

	 	VENDOR CONTACT PHONE NUMBER
	 
	 	 
	 

	 	VENDOR ADDRESS
	 
	 	 
	 

	 	VENDOR REMIT TO ADDRESS
	 
	 	 
	 

	 	PAYMENT TERMS:






Nextel Communications

P.O. Box 10850

McLean, VA 22102




NEXTEL PO NUMBER: 123456



	 	 	 	 	 	 	 	 	 
	PO LINE	 	PO LINE	 	TOTAL
	NO.	 	DESCRIPTION	 	AMOUNT
	 	1.	 	 	Site # — Site Name — Leasing
	 	$	3,000.00	 
	 	3.	 	 	Site # — Site Name — Construction
	 	$	2,000.00	 






NOTE: These line descriptions should be identical to what is on the PO.




	 	 	 	 	 
	Sub-total Goods/Materials
	 	$	0,000.00	 
	Sub-total Services
	 	$	5000.00	 
	 
	VA Sales Tax
	 	$	000.00	 
	Freight/Shipment
	 	$	00.00	 
	 
	Invoice Total
	 	$	5,000.00	 








 




			
	***	 	Confidential treatment requested pursuant to a request for confidential treatment filed with the Securities and Exchange Commission.
Omitted portions have been filed separately with the Commission.





					
	 	 	 	 	 
	     Nextel Proprietary & Confidential
	 	-36-
	 	MCA/BDA -2.11.05