2023-33 Crown Castle - Telecommunication Antenna Systemam:CROWN
CASTLE
October 19, 2022
VIA FEDEX
Rutan & Tucker, LLP
18575 Jamboree Road
9th Floor
Irvine, CA 92612
Attn. Jeff Melching
Phone: (714) 641-3422
Crown Castle
2000 Corporate Drive
Canonsburg, PA 15317
RE: Right -of -Way Use and License Agreement between the City of La Quinta and NewPath Networks LLC
CID #649090 // COPY
Mr. Melching,
Pursuant to Article 2 — Term & Termination of the above referenced and enclosed agreement between the City of
La Quinta ("City") and Crown Castle Fiber LLC, as successor by merger to NewPath Networks LLC ("NewPath")
dated March 6, 2013, please accept this letter as our formal notice that Crown Castle Fiber LLC requests an
extension of the term for a maximum of two successive five (5) year periods of the Right -of -Way Use and License
Agreement. Furthermore, both the City of La Quinta and Crown Castle Fiber LLC must mutually consent to such
an extension within one hundred eighty (18o) days prior to the schedule termination.
According to our records, the extension term would run from March 7, 2023 to March 6, 2033•
Please contact Marc Myers — Manager (Permitting & Utilities), via email at Marc.Myers(di crown castle.com or
phone at (949) 637-0821 to discuss and finalize the terms of the extension.
Sincerely,
David C. Kutschbach
David.Kutschbach@crowncastle.com
SCFS Contract Analyst - National
150o Corporate Drive
Canonsburg, PA 15317
(724) 416-9218
The Foundation for a Wireless World.
CrownCastle.com
RENEWAL TERM AGREED TO BY:
By: - - -
JMcMillen
Name:
City Manager, City of La Quinta
Title:
Date: 11/2/2022
APPROVED AS TO FORM:
William H. Ihrke, City Attorney
City of La Quinta, California
Enclosed: Addendum to Section 8.3 - Notices of the Agreement
The Foundation for a Wireless World.
CrownCastle.com
ADDENDUM
TO RIGHT -OF WAY USE AND LICENSE AGREEMENT
BETWEEN THE CITY OF LA QUINTA AND
CROWN CASTLE FIBER LLC. ("CROWN CASTLE"),
AS SUCCESSOR OF NEWPATH NETWORKS, LLC. ("NEWPATH")
ARTICLE 8
MISCELLANEOUS PROVISIONS
8.3 Notices. All notices which shall or may be given pursuant to this Agreement shall
be in writing and personally served or transmitted through first class United States mail, or by
private delivery systems, postage prepaid, to the following address or such other address of
which a party may give written notice.
City: City of La Quinta
78495 Calle Tampico
La Quinta, CA 92253
Attention: City Manager
With a copy to:
Rutan & Tucker, LLP
18575 Jamboree Road, 9th Floor
Irvine, CA 92612
Attention: William H. Ihrke, City Attorney
NewPath: Crown Castle
1500 Corporate Drive
Canonsburg, PA 15317
Attention: David C. Kutschback, SCFS Contract Analyst - National
Any notice required or provided for under this Agreement shall be deemed served at the
time of personal service. Mailed notices will be deemed served as of the day of receipt.
RIGHT-OF-WAY USE AND LICENSE AGREEMENT BETWEEN
THE CITY OF LA QUINTA AND NEWPATH NETWORKS, LLC
34, This Right -of -Way Use and License Agreement ("Agreement") is entered into as of
2013 ("Effective Date") by and between the City of La Quinta, a municipal
corporation (the "City"), and NewPath Networks, LLC, a New Jersey limited liability company
("NewPath").
RECITALS
A. NewPath represents that it owns, maintains, operates and controls, in accordance
with regulations promulgated by the Federal Communications Commission and the California
Public Utilities Commission ("PUC"), telecommunications networks serving NewPath's wireless
carrier customers through fiber -fed distributed antenna system facilities iri public rights -of -way
("ROW"), and on private property, in the State of California.
B. NewPath represents that it is a competitive local exchange carrier ("CLEC") that
holds a valid full -facilities -based certificate of public convenience and necessity ("CPCN")
issued by the PUC on April 13, 2006 (Decision 06-04-030).
C. For purposes of installing, maintaining, and operating a distributed antenna system
(the "Network"), NewPath seeks to (i) enter the City's ROW for purposes of, among other things
accessing City -owned light poles, and (ii) enter upon City -owned property located in Eisenhower
Park for purposes of, among other things, accessing a City -owned light pole. The Network will
be used to provide wireless telecommunications and data services to the residents and visitors of
the City ("Services"). The Network will be designed to accommodate MetroPCS as a carrier
providing the Services. The Network may also allow up to two additional carriers, besides
MetroPCS, to provide the Services from the Network ("Additional Carriers").
D. Some features of the Network include, without limitation, antenna nodes, fiber
repeaters and related equipment in a configuration substantially similar to the construction
drawings and elevations depicted in Exhibit A, attached hereto and incorporated herein by
reference, and to be located on _ streetlights at certain locations described and diagrammed in
Exhibit B, attached hereto and incorporated herein by reference ("DAS Facilities").
E. NewPath and the City each contend that they have certain rights with regard to the
deployment of telecommunications infrastructure in the public rights of way, which rights are
derived from, but not limited to California Public Utilities Code sections 1001, 7901, 7901.1, and
California Government Code section 50030.
In consideration of the Recitals set forth above, the terms and conditions of this
Agreement and other valuable consideration, the adequacy of which is hereby acknowledged, the
parties agree as follows:
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ARTICLE 1
INSTALLATION OF THE NETWORK
1.1 Permitted Installation. Provided it complies with this Agreement and all applicable
City processes, procedures and requirements, including, without limitation, those requirements
set forth in City's Wireless Teleconunu ications Facilities Ordinance, La Quinta Municipal Code
Chapter 9.170 ("Telecommunications Ordinance"), NewPath may at NewPath's sole cost and
expense and during the term of this Agreement, locate, place, attach, install, operate, use, control,
repair, upgrade, enhance and maintain the Network at the locations depicted on Exhibit B;
provided, however, that the volume, location and physical configuration of the Network
locations depicted on Exhibit B shall not be altered without the City's prior written consen,
which consent shall not be unreasonably withheld. NewPath shall undertake and perform any
work authorized by this Agreement in a skillful and workmanlike manner.
1.2 Expansion of the Network. During the term of this Agreement, NewPath may, pursuant
to the prior written approval and/or any and all permits required by the City, expand the Network
by using other locations within the City's ROW not described in Exhibit B. In such an event, the
parties may, in their respective sole and absolute discretion, enter into an amendment to this
Agreement that modifies Exhibit B to reflect the additional locations in the City's ROW that
NewPath desires to use. Except as otherwise agreed to by the parties in writing, any expansion
of the Network pursuant to this Section 1.2 shall be subject to the terms and conditions of this
Agreement.
1.3 Permits. NewPath shall obtain any and all permits relating to the installation of the
Network, including without limitation, those permits listed below (the "Permits").
1.4.1 Encroachment Permits. NewPath shall obtain any necessary encroachment
permits from the City for the installation of the Network and for any other work necessary to
install the Network if required by the City's Municipal Code ("Code").
1.4.2 Building Permits. NewPath shall obtain any necessary building permits from the
City for the installation of the Network and for any other work necessary to install the Network,
if required by the Code.
1.4.3 Conditional Use Permits. NewPath shall obtain any and all necessary conditional
use permits, as required by the Code.
1.4.3 Compliance with Permits. All work within the City's ROW shall be performed in
strict compliance with the applicable Permits and all applicable regulatory requirements.
1.4 Coordination of Excavation with Other Pertnittees. At least thirty (30) days prior to
commencing excavation work in the City's ROW pursuant to this Agreement, NewPath shall
notify in writing, on a form approved by the City, other existing or potential users ("User") of the
City's ROW which are (a) shown on the list of users maintained by the City; and (b) are likely to
be affected by such excavation work. The notice shall describe the work to be performed, the
specific ROW of the City that will be used, and the time when such work will be performed.
Each User receiving such notice shall have thirty (30) days from the date thereof to inform in
writing NewPath and the City that such User desires to perforrn work jointly with NewPath. To
704kia310103 -2-
the extent reasonably feasible, and subject to NewPath and User entering into a written
agreement for such work and/or use, NewPath shall coordinate its work with any User who
timely informs NewPath that it desires to perform work jointly in the City's ROW, provided that
such User obtains any required ROW agreement and permits from the City as required by the
Code before such User performs any work in the City's ROW, including the installation of any
facilities, or uses any facilities installed by NewPath on their behalf
1.5 NewPath's Streetlights. It is understood that NewPath will replace the streetlight poles
required for the DAS Facilities, the locations of which are shown in Exhibit B, with new
streetlight poles capable of supporting the DAS Facilities ("Replacement Poles"). NewPath
shall, at no cost to City, own, maintain, repair, and operate the Replacement Poles and all of the
equipment thereon and/or related thereto. NewPath agrees to deliver to City (within a 25-mile
radius of Replacement Pole site) the current poles that will be replaced.
1.6 Antenna Attachment to Traffic Signal Pole. The City has agreed to allow NewPath to
attach antennas and associated equipment to a single City -owned Traffic Signals Pole at the
location depicted on Exhibit B. NewPath shall pay to the City fees for the Traffic Signal Pole as
though the Traffic Signal Pole were Replacement Pole; provided, however, that NewPath shall
have and obtain no ownership interest in the Traffic Signal Pole. City will maintain full
operational responsibility over all traffic signal devices associated with the Traffic Signal Pole.
NewPath will provide 48 hours prior notice before accessing the Traffic Signal Pole for purposes
of attaching, installing, maintaining, repairing, or altering the telecommunications equipment
installed by NewPath on the Traffic Signal Pole. In each instance where NewPath accesses the
Traffic Signal Pole, it shall take no action that interferes with the normal operation of the traffic
signal or any of its associated equipment. In no event shall any of the telecommunications
equipment installed by NewPath (or its agents or designees) interfere with the operation of the
Traffic Signal Pole. If and to the extent any activity taken by NewPath and/or operation of
telecommunication equipment on the Traffic Signal Pole inteferes or impedes the proper
operation of the traffic signal and/or its associated equipment, City shall have the right to
immediately take such corrective action as it deems necessary to resolve any such interference or
impedence.
1.7 Fee. NewPath is solely responsible for the payment of all lawful fees in connection with
NewPath's performance under this Agreement, which lawful fees includes, without limitation,
those set forth below.
(a) Fee. To compensate the City for any costs incurred as a result of NewPath's entry
upon and deployment from the locations listed on Exhibit B, NewPath shall pay to
the City a one time fee ("Pole Fee") that consists of Thirteen Thousand Dollars
($13,000.00) for each Replacement Pole (including the one Eisenhower Park
Pole) upon which NewPath's Equipment has been installed pursuant to this
Agreement. In addition, the Pole Fee shall be augmented, for each additional
telecommunications carrier up to a maximum total of three carriers on a pole, by
an amount equal to Six Thousand Dollars multiplied by the percentage of months
remaining in the Term at the time each additional carrier's services commence
provision from said pole(s).. The parties agree that the Pole Fee is no greater than
the costs incurred by the City in connection with granting the access rights
3I1A6Im9.I Ia31O103 -3-
provided hereunder, and to that end waive and relinquish any argument that the
Pole Fee exceeds such cost.
The Pole Fee shall be prorated as appropriate and shall be multiplied by the
number of Replacement Poles. The Pole Fee shall be due and payable not later
than forty five (45) days after the Installation Date, and any augmentation to the
pole fee shall be due not later than forty five (45) days after the date an additional
carrier's services commence on the pole giving rise to the fee augmentation. For
each pole, the "Installation Date" means the date that is 45 days after the City's
final inspection and approval of such pole.
(b) Accounting Matters. NewPath shall maintain accurate books of account at its
principal office or another location of its choosing, for the purpose of
determining the amounts due to City under this Section 1.7. City, or a consultant
acting on behalf of City, may inspect NewPath's books of account relative to the
City at a location mutually selected by the City and NewPath, but in no event
more than 50 miles from the City, at any time during regular business hours on
ten (10) business days prior written notice and may audit the books from time to
time, but in each case only to the extent necessary to confirm the accuracy of
payments due under this Section 1.7. To the extent permitted by law, the City
agrees to hold in confidence any non-public information it obtains from NewPath
to the maximum extent permitted by law.
(c)
"Most -Favored -Municipality" Status. The parties anticipate that, following the
Effective Date of this Agreement, NewPath will enter into similar use agreements
with other municipalities or government agencies. If NewPath enters into a
similar agreement with another municipality in Riverside, Los Angeles, Orange,
or San Bernardino County then the parties will modify this Agreement if the
following conditions are met:
(1)
The agreement confers financial benefits upon the municipality that, taken
as a whole and balanced with other terms of that agreement, are deemed
by the City to be substantially superior to the financial benefits provided
for in this Agreement; and
(2) City notifies NewPath of its desire to modify this Agreement to substitute
the same or substantially similar fnancial benefits, and related terms and
conditions, of that right-of-way use agreement in order to achieve parity.
To the extent practicable, such modification will be retroactive to the
Effective Date of the similar agreement with the comparable
municipality or government agency.
(3)
To the extent a modification to the amount of the Pole Fee is required by
this Section 1.7(c), the cumulative amount of the modified fee over the
remaining Term shall be due and payable as a lump sum payment within
forty-five (45) days following the completion of a modification pursuant
to this Section 1.7(c).
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(4) Upon request from the City, NewPath will provide to the City a list of
cities in Riverside County, Los Angeles County, Orange County, or San
Bernardino County, that within the preceding 12 month period, have
executed agreements with NewPath for the use of city -owned facilities.
ARTICLE 2
TERM AND TERMINATION
2.1 Term. The initial term of this Agreement shall be for ten (10) years beginning on the
Effective Date of this Agreement and shall continue for a maximum of two successive five (5)
year periods, if the parties mutually consent to such extension(s) within one hundred eighty (180)
days prior to the scheduled termination. The term of any license granted pursuant to this
Agreement shall be coextensive with the Term of this Agreement.
2.2 Termination of Use. Notwithstanding Section 2.1 above, NewPath may terminate its
use of any or all of the Network by providing the City with sixty (60) days prior written notice.
Upon such termination, NewPath shall pay, as a termination fee, an amount equal to one year of
Pole Fees for each pole subject to such termination.
ARTICLE 3
REMOVAL AND RELOCATION
3.1 Removal Due to Public Project. Except to the extent not permitted by Law, upon
receipt of a written demand from the City pursuant to this Article 3, NewPath, at its sole cost and
expense, shall remove and relocate any part of the Network, constructed, installed, used and/or
maintained by NewPath under this Agreement, whenever the City reasonably determines that the
removal and/or relocation of any part of the Network is needed for any of the following
purposes: (a) due to any work proposed to be done by or on behalf of the City or any other
governmental agency, including but not limited to, any change of grade, alignment or width of
any street, sidewalk or other public facility, installation of curbs, gutters or landscaping and
installation, construction, maintenance or operation of any underground or aboveground facilities
such as sewers, water mains, drains, storm drains, pipes, gas mains, poles, power lines, telephone
lines, cable television lines and tracks. Notwithstanding the foregoing, if a City -imposed
condition of approval associated with a permit issued to private developer requires the relocation
of the DAS Facility, the City shall make a reasonable attempt to recover a reasonable proportion
of the costs to relocate said DAS Facility (b) because any part of the Network is interfering with
or adversely affecting the proper operation of City -owned light poles, traffic signals, or other
City facilities; or (c) to protect or preserve the public health and safety. The City shall, at no cost
to the City, cooperate with NewPath in, to the extent reasonably feasible, relocating any portion
of the Network removed pursuant to this Section 3.1 in a manner that allows NewPath to
continue providing service to its customers, including, but not limited to, expediting, to the
extent reasonably feasible, approval of any necessary pertnits required for the relocation of that
portion of the Network relocated under this Section 3.1_
3.2 Removal Due to Termination. No later than ninety (90) days after termination of this
Agreement (whether by expiration of the Term, breach, or otherwise), NewPath shall, at its sole
391t110U1 0310103 -5-
cost and expense, remove the Replacement Poles and construct light poles of a similar type and
quality as currently exist at the locations depicted on Exhibit B, remove the Network and, if
restoration of light poles or Network removal disturbs the City's ROW, restore the City's ROW
to its original condition, reasonable wear and tear excepted, and further excepting landscaping
and related irrigation equipment, or other aesthetic improvements made by NewPath to the City's
ROW. Alternatively, the City may, in its sole and absolute discretion, require that NewPath
abandon the Network, the Replacement Poles, or any part thereof, in place and convey it to the
City.
3.3 Abandonment. If NewPath ceases to repair and maintain the Network, or any part thereof,
for a period of ninety (90) days, NewPath shall be deemed to abandoned the Network (or portion
thereof). In the event of such abandonment NewPath shall, at its sole cost and expense and
within thirty (30) days, vacate and remove the Network, or the abandoned part thereof (and any
associated Replacement Pole). If such removal results in the removal of a Replacement Pole,
NewPath shall, at its sole cost and expense, construct light pole(s) of a similar type and quality as
currently exist at the locations depicted on Exhibit B, which pole(s) shall be placed at the
location of the removed Replacement Pole or such other location as the City may direct. If such
removal disturbs the City's ROW, NewPath shall also, at its sole cost and expense, restore the
City's ROW to its original condition, reasonable wear and tear excepted, and further excepting
landscaping and related irrigation equipment, or other aesthetic improvements made by NewPath
to the City's ROW. Alternatively, the City may, in its sole and absolute discretion, require that
NewPath abandon the Network, or the abandoned part thereof, in place and convey it to the City.
ARTICLE 4
MAINTENANCE AND REPAIR
4.1 Electricity Use. NewPath shall pay for the electricity it consumes, including the electricity
consumed in connection with street lighting provided from the Replacement Poles, in its
operations at the rate charged by the servicing utility company.
4.2 Street Lighting. NewPath shall be responsible for providing street lighting from the
Replacement Poles. Such street lighting services shall be consistent with other streetlights
located in the City's ROW, including the tinning for street lighting set by the City, which is
currently from dusk to dawn. NewPath shall install automatic light detection sensors on each
Replacement Pole and set the detectors to conform to such timing for street lighting. Within
thirty (30) days of a written request by the City, NewPath shall adjust the automatic light
detection sensors on the Replacement Poles to comply with the hours to those specified by the
City. All costs related to such street lighting shall be at NewPath's sole cost and expense.
4.3 Maintenance and Repair. NewPath shall, at NewPath's sole cost and expense, perform
all maintenance and repairs reasonably needed to maintain the Network and the Replacement
Poles (including the street lights) in good condition and appearance, and in compliance with all
applicable Laws. In the event any part of the Network requires replacement because such part
cannot be repaired, NewPath shall, at NewPath's sole cost and expense, replace the irreparable
part of the Network and any associated street lighting or other equipment that requires
replacement as a result of the Network replacement/repair activity. If any of the streetlights on
Replacement Roles, or lighting element of the Eisenhower Park location Replacement Pole
3 $jU p ia310103 -6-
become nonoperational during this agreement and subsequent renewals, if any, Newpath will
respond and commence repair within twenty-four (24) hours upon NewPath's detection of
nonoperational status.
4.4 Repair of ROW. NewPath shall be responsible for any damage, ordinary wear and tear
excepted, to street pavement, existing facilities and utilities, curbs, gutters, sidewalks,
landscaping, and all other public or private facilities to the extent caused by NewPath's
construction, installation, maintenance, access, use, repair, replacement, relocation, or removal of
the Network and/or Replacement Poles in the City's ROW ("NewPath's Activities"). NewPath
shall promptly repair such damage and return the City's ROW and any affected adjacent property
to a safe and satisfactory condition to the City in accordance with the City's applicable street
restoration standards or to the property owner if not the City. NewPath's obligations under this
Section 4.4 shall survive for one (1) year past the completion of such reparation and restoration
work and return of the affected part of the City's ROW by NewPath to the City.
4.5 Bond. NewPath shall provide a bond in an amount determined by the City to represent
the estimated cost of NewPath's obligations under Sections 3 and 4 of this Agreement, which the
City may require NewPath to increase from time to time (but no more frequently than every five
years during the Term) to reflect the reasonable estimated cost of performing such obligations, to
secure performance of NewPath's obligations under Sections 3 and 4.
4.6 Eisenhower Park Site. NewPath shall be deemed to hold a license to access the
square foot Network site located in Eisenhower Park, as depicted on Exhibit B, subject to the
following terms, conditions and requirements.
(a)
NewPath's obligations with regard to the ownership, maintenance, repair,
abandonment, conveyance on termination, bonding, removal, payment for
electricity costs, accounting matters, coordination with other pernuttees, network
expansion, and compliance with laws and permits and payment of the Pole Fee
shall be the same as exists for those portions of the Network within the ROW.
(b) Absent emergency circumstances, NewPath may access the Eisenhower Park site
for maintenance and repair purposes only between 8:00 a.m. and 6:00 p.m. In the
event of an emergency circumstances, NewPath shall make a reasonable effort to
advise the City of its intent to access the Eisenhower Park site, and shall make
every reasonable attempt to avoid disrupting people in close proximity to the
park.
ARTICLE 5
TAXES
5.1 Taxes. NewPath agrees that it will be solely responsible for the payment of any and all
lawful taxes, fees and assessments levied on its use and maintenance of the Network. Pursuant
to Section 107.6 of the California Revenue and Taxation Code, the City hereby advises, and
NewPath recognizes and understands, that NewPath's use of the City's ROW may create a
3DM Pia310103 -7-
possessory interest subject to real property taxation and that NewPath may be subject to the
payment of real property taxes levied on such interest. NewPath will cooperate with the
Riverside County Assessor in providing any information necessary for the Assessor to make a
property tax determination. NewPath reserves the right to challenge any such assessment, and the
City agrees to cooperate with NewPath in connection with any such challenge.
ARTICLE 6
INDEMNIFICATION
6.1 Indemnity. NewPath shall indemnify, defend, and hold harmless the City, its
couneilmembers, officers, employees, agents, and contractors, from and against liability, claims,
demands, losses, damages, fines, charges, penalties, administrative and judicial proceedings and
orders, judgments, and the costs and expenses incurred in connection therewith, including
reasonable attorneys' fees and costs of defense, to the extent directly or proximately resulting
from NewPath's activities undertaken pursuant to this Agreement, except to the extent arising
from or caused by the negligence or willful misconduct of the City, its councilmernbers, officers,
employees, agents, or contractors. The City shall promptly notify NewPath of any claim, action
or proceeding covered by this Section 6.1.
6.1.1 Limitation of Liability. NewPath acknowledges that under no circumstance, including
but not limited to condemnation or breach of this agreement, shall City be liable to NewPath for
any incidental, consequential, or punitive damages, including but not limited to any loss of
income, business or profits, arising out of NewPaths use of City's ROW or City -owned property
or City's performance or non-performance under this agreement, even if City has been advised
of the possibility of such damages. City acknowledges that, in the event NewPath breaches this
agreement, its liability for breach of contract shall not include incidental, consequential, or
punitive damages other than rent, including but not limited to any loss of income, business or
profits, arising out of NewPath's use of City's ROW or City -owned property or City's
performance or non-performance under this Agreement, even if NewPath has been advised of the
possibility of such damages. Nothing in the foregoing sentence limits either (i) NewPath's
indemnity obligations under this Agreement, or (ii) NewPath's tort liablity, if any, to the City.
6.2 Waiver of Claims. NewPath waives all claims, demands, causes of action, and rights it
may assert against the City on account of any loss, damage, or injury to any portion of the
Network, or any loss or degradation of the services provided by the Network resulting from any
event or occurrence that is beyond the City's reasonable control.
ARTICLE 7
INSURANCE
7.1 Minimum Insurance Requirements. NewPath shall obtain and maintain at its sole cost
and expense for the duration of this Agreement insurance pursuant to the terms and conditions
described in this Article.
(a) Minimum Insurance. NewPath shall at all times during the term of this
Agreement carry, maintain, and keep in full force and effect, insurance as follows:
3t11k1D.� 1a310103 -8-
(i) General Liability: A policy or policies of Comprehensive General
Liability Insurance, with minimum Iimits of $2,000,000 combined single limit per occurrence for
bodily injury, personal injury, death, loss and property damage resulting from wrongful or
negligent acts by NewPath. If Commercial General Liability Insurance or other form with a
general aggregate limit is used, either the general aggregate limit shall apply separately to this
project/location or the general aggregate limit shall be twice the required occurrence limit.
(ii) Automobile Liability: A policy or policies of Comprehensive
Vehicle Liability Insurance covering personal injury and property damage, with minimum limits
of $1,000,000 combined single limit per accident for bodily injury and property damage covering
any vehicle utilized by NewPath in performing the work covered by this Agreement.
(iii) Workers' Compensation and Employer's Liability: Workers'
compensation limits as required by the Labor Code, and Employer's Liability limits of
$1,000,000 per accident.
(b) Deductibles and Self -Insured Retentions. Any deductibles or self -insured
retentions shall not exceed $25,000; provided, however, if NewPath's insurance policy expressly
provides (i) that the insurer is required to pay covered claims with no deduction for all or any
part of the NewPath's deductible, and (ii) insurer's obligation to pay covered claims is triggered
irrespective of whether or not the insured pays the deductible, then NewPath's deductible shall
not exceed $100,000 for Comprehensive General Liability Insurance, $100,000 for
Comprehensive Vehicle Liability Insurance and $250,000 for Workers' Compensation and
Employer's Liability coverage.
(c) Other Insurance Provisions, The policies shall contain, or be endorsed to
contain, the following provisions:
(i) General Liability and Automobile Liability Coverage.
(1) The City, and its elected and appointed council members,
board members, commissioners, officers and officials (the "Insureds") shall be named as
additional insureds on all required insurance policies, except for Workers' Compensation and
Employer's Liability policies.
(2) NewPath's insurance coverage shall be primary insurance
as respects the Insureds with respect to the matters covered by this Agreement. Any insurance or
self-insurance maintained by the Insureds shall be in excess of NewPath's insurance and shall
not contribute with it.
(3) Any failure of NewPath to comply with reporting
provisions of the policies shall not affect coverage provided to the Insureds.
(4) NewPath's insurance shall apply separately to each of the
Insureds against whom a claim is made or suit is brought, except with respect to the limits of the
insurer's liability. Bach of the Insureds is subject to all policy terms and conditions and has an
obligation, as an Insured, to report claims made against them to the insurance carrier.
migfi 091ia3i0103 -9-
(ii) Worker's Compensation and Employers Liability Coverage. The
insurer shall agree to waive all rights of subrogation against the Insureds for losses arising from
work performed by NewPath in the City's ROW.
(iii) All Coverages. Except for non-payment of premium, each
insurance policy required by this clause shall be endorsed to state that coverage shall not be
cancelled, except after thirty (30) days' prior written notice has been given to the City. If for
any reason insurance coverage is canceled or, reduced in coverage or in limits, NewPath shall,
within two (2) business days of notice from the insurer, notify the City by phone or fax of the
changes to or cancellation of the policy and shall confirm such notice via certified mail, return
receipt requested. If NewPath does not procure additional and / or substitute coverage to replace
the cancelled coverage within five (5) business days of receipt of the prior insurer of cancellation
for non-payment of premium and fifteen (15) business days for any other reason, then City may
procure such insurance and charge the costs of such procurement to NewPath which costs
NewPath shall remit to the City within ten (10) business days after receipt of an invoice from the
City.
(d) Acceptability of Insurers. Insurance shall be placed with insurers with an A.M.
Best rating of no less than A-:VII.
(e) Verification of Coverage. NewPath shall furnish the City with certificates of
insurance required by this Article 8. The certificates for each insurance policy are to be signed
by a person, either manually or electronically, authorized by that insurer to bind coverage on its
behalf. All certificates are to be received and approved by the City before work commences.
7.2 Secondary Parties. In the event NewPath hires any subcontractors, independent
contractors or agents ("Secondary Parties") to locate, place, attach, install, operate, use, control,
replace, repair or maintain the Network, NewPath shall require the Secondary Parties to obtain
and maintain the insurance similar in form to that required by Section 7.1 of this Agreement and
it shall be NewPath's responsibility to ensure compliance with this Section 7.2.
ARTICLE 8
MISCELLANEOUS PROVISIONS
8.1 Future Changes In The Law. The parties agree that if any future change in the law or
binding determination of a court renders all or any portion of this Agreement void or
unenforceable, the NewPath shall not attempt, and waives and relinquishes any right, to recover
the Pole Fee, or any other benefit afforded to the City under this Agreement, from the City.
8.2 Nonexclusive Use. NewPath acknowledges that this Agreement does not provide
NewPath with exclusive use of the City's ROW or any municipal facility and that City retains
the right to permit other providers of communications services to install equipment or devices in
the City's ROW and on municipal facilities. NewPath acknowledges that the City may make
information available to other providers of communications services concerning the presence or
planned deployment of the Network in the City's ROW,
8.3 Notices. All notices which shall or may be given pursuant to this Agreement shall be in
writing and personally served or transmitted through first class United States mail, or by private
304111 k ia310103 -10-
delivery systems, postage prepaid, to the following address or such other address of which a
party may give written notice:
City: City of La Quinta
78-495 Calie Tampico
La Quinta, CA 92253
Attention: City Manager
With a copy to:
Rutan & Tucker, LLP
611 Anton Blvd., 14th Floor
Costa Mesa, CA 92626
Attention: Jeff Melching
NewPath: NewPath Networks, LLC
c/o Crown Castle USA Inc.
E. Blake Hawk, General Counsel,
2000 Corporate Drive
Canonsburg, PA 15317-8564
Attn: Legal Department •-- DAS
With a copy to:
NewPath Networks, LLC
890 Tasman Drive
Milpitas, CA 95035
Attn: Contracts Management
Any notice required or provided for under this Agreement shall be deemed served at the
time of personal service. Mailed notices will be deemed served as of the day of receipt.
8.4 Attorneys' Fees. If legal action is brought by either party because of a breach of
this Agreement or to enforce a provision of this Agreement, the prevailing party is entitled to
recover reasonable attorneys' fees and court costs; provided, however, that the "reasonableness"
of the hourly rate charged by either Party's attorney shall in no event be greater than the hourly
rate charged to the City for its counsel.
8.5 Transfers. NewPath shall request the City's approval of any proposed transfer of
Network to a third party. The City shall promptly evaluate such request, and may request such
additional information as is reasonable and appropriate to its evaluation of such request. City
shall not unreasonably withhold, condition, or deny such transfer request; provided, however,
that the City may impose commercially reasonable conditions as necessary to ensure
performance hereunder by any proposed transferee. If City does not act on a transfer request
within thirty (30) days of receipt of such request, the request shall be deemed approved. An
assignment shall not be effective until the proposed transferee agrees in writing to comply with
and be subject to all the terms and conditions of this Agreement and the Code. Without limiting
any provision in this Agreement to the contrary, NewPath may in the ordinary course of its
business and without the prior written consent of or notice to the City: (a) lease the Network, or
MA1 K4 Ia310103 -11-
any portion thereof, to another person or entity, (b) grant an indefeasible right of user interest in
the Network or any portion thereof to another person or entity, (c) offer or provide capacity or
bandwidth from the Network to another person, (d) assign any contract to any entity which
controls, is controlled by or which is under common control with NewPath or to any entity
acquiring all or substantially all of the assets of NewPath; provided that whether NewPath does
any of the three things listed in subsections (a) — (c) above, it must at all times retain exclusive
control over the Network and remain responsible for locating, servicing, repairing, maintaining,
replacing, relocating, or removing the Network pursuant to the provisions of this Agreement.
8.6 Binding Effect. This Agreement shall be binding upon and inure to the benefit of
the parties and their respective heirs, legal representatives, successors, assigns and transferees.
8.7 Entire Agreement; Modification; Waiver. This Agreement constitutes the
entire agreement between the parties relating to the subject matter hereof. All prior and
contemporaneous agreements, representations, negotiations, and understandings of the parties,
oral or written, relating to the subject matter hereof, are merged into and superseded by this
Agreement. Any modification or amendment to this Agreement shall be of no force and effect
unless it is in writing and signed by the parties. No waiver of any of the provisions of this
Agreement shall be deemed, or shall constitute, a waiver of any other provision, whether or not
similar. No waiver or consent shall constitute a continuing waiver or consent or commit either
party to provide a waiver in the future except to the extent specifically set forth in writing. No
waiver shall be binding unless executed in writing by the party making the waiver.
8.8 Severability, If any one or more of the provisions of this Agreement shall be
held by a court of competent jurisdiction in a final judicial action to be void, voidable, or
unenforceable, such provision or provisions shall, to the extent permitted by California law, be
deemed separable from the remaining provisions of this Agreement and shall in no way affect
the validity of the remaining portions of this Agreement.
8.9 Governing Law. This Agreement shall be interpreted and enforced according to,
and the parties rights and obligations governed by, the domestic law of the State of California,
without regard to its laws regarding choice of applicable law. Any proceeding or action to
enforce this Agreement shall occur in the federal court with jurisdiction over Riverside County
and the state courts located in Riverside County, California.
8.10 Survival of Terms. All of the terms and conditions in this Agreement related to
payment, removal due to termination, indemnification, limits of City's liability, attorneys' fees
and waiver shall survive termination of this Agreement.
8,11 Captions and Paragraph Headings. Captions and paragraph headings used
herein are for convenience only. They are not a part of this Agreement and shall not be used in
construing this Agreement.
8.12 Exhibits. All Exhibits referenced in this Agreement are hereby incorporated as
though set forth in full herein.
8.13 Drafting. The parties agree that this Agreement is the project of joint
draftsmanship and that should any of the terrns be determined by a court, or in any type of quasi-
3040 44,t ia310103
-12-
judicial or other proceeding, to be vague, ambiguous and/or unintelligible, that the same
sentences, phrases, clauses or other wording or language of any kind shall not be construed
against the drafting party in accordance with California Civil Code Section 1654, and that each
party to this Agreement waives the effect of such statute.
8.14 Execution in Counterparts. This Agreement may be executed in one or more
identical counterparts and all such counterparts together shall constitute a single instrument for
the purpose of the effectiveness of this Agreement.
8.15 Authority to Execute This Agreement. Each person or persons executing this
Agreement on behalf of a party, warrants and represents that he or she has the full right, power,
legal capacity and authority to execute this Agreement on behalf of such party and has the
authority to bind such party to the performance of its obligations under this Agreement without
the approval or consent of any other person or entity.
[Signatures Begin on Following Pagel
stool eat la310103 -13-
IN WITNESS WHEREOF, the parties have signed this Agreement as of the date stated in
the introductory clause.
City of , a municipal corporation NewPath Networks, LLC, a New Jersey limited
liability company
Frank J. Spevacek, City Manager
City of La Quinta, California
ATTEST:
City Clerk
fril/Ar4
Susan Maysels, City Clerk
City of La Quinta, California
APPROVED AS TO FORM:
SIGNED IN COUNTERPART
, City Attorney
Title: VP DAS Network Real Estate
Date: January 25, 2013
Approved as to Form
and Le9ai Sufficiency.
Signature/initials
Date:
3019rli WpS ia310103 -14-
IN WITNESS WHEREOF, the parties have signed this Agreement as of the date stated in
the introductory clause.
City of , a municipal corporation
SIGNED IN COUNTERPART
By:
City Manager
ATTEST:
SIGNED IN COUNTERPAH I
City Clerk
APPVED S ! FO
City Attorney
M. Katherine Jenson, City Attorney
City of La Quinta, California
NewPath Networks, LLC, a New Jersey limited
liability company
4/444
Name:Robert L, 1)elsman
Title: VP DAS Network Real Estate
Date: January 25, 2013
361610Qt:1a310103 -14-
Aoprpvsd in to Porrn
and Legal StelldrICY'
signature/Initials
Date:_.---/
20
EXHIBIT A
Construction Drawings of the DAS Facilities
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EXHIBIT B
INSTALLATION LOCATIONS
Attached behind this page are descriptions and diagrams indicating the location at which the
DAS Facilities covered by this Agreement will be installed.
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