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HomeMy WebLinkAboutC32460 - New Monopalm Distributed Antenna SystemContract No. C32460 CITY OF PALM DESERT STAFF REPORT REQUEST: APPROVE A SITE LICENSE AGREEMENT WITH CROWN CASTLE NG WEST, INC. FOR THE INSTALLATION OF A NEW MONOPALM DISTRIBUTED ANTENNA SYSTEM WIRELESS NODE AND ASSOCIATED EQUIPMENT LOCATED ALONG THE COOK STREET FRONTAGE AT DESERT WILLOW GOLF RESORT SUBMITTED BY: Martin Alvarez, Director of Economic Development CONTRACTOR: Crown Castle NG West, Inc. 1100 Dexter Avenue North, Suite 250 Seattle, WA 98109 DATE: December 13, 2012 CONTENTS: CPUC Approval Letter Site License Agreement Plans and Exhibits Site Map Recommendation By Minute Motion: 1. Approve a site license agreement with Crown Castle NG, West, Inc. for the installation of a new monopalm distributed antenna system wireless node and associated equipment located along the Cook Street frontage at Desert Willow Golf Resort. 2. Approve the site license agreement substantially as to form and authorize the City Manager to execute the agreement. Background The proposed project consists of installing a 40'-0" faux -palm DAS wireless node located in the City's landscaped parkway, outside of the perimeter wall of Desert Willow Golf Course The site is located on Cook Street, north of Desert Mirage Drive and south of Frank Sinatra Drive, near the Firecliff Hole No. 13 tee box. The DAS node does not require the typical equipment and screening as other faux -palms approved in the City. The project site will have a standard electric meter pedestal and a ground level fiber vault that will be installed in the public right-of-way. Contract No. C32460 Staff Report Site License Agreement Crown Castle Monopalm at Desert Willow Page 2 of 3 December 13, 2012 The faux -palm is designed to blend into the existing landscaping. The three antennas will be located outside of the trunk within the faux bearded fronds; antennas will be painted to match the faux bearded fronds. Three antennas will also be located within the faux green palm fronds and painted to further disguise the wireless facility. The project includes landscaping improvements with some shrubs and potentially new palm trees. Recently, several of the palm trees along the perimeter of Desert Willow Golf Course were burned from several different fires that are currently under investigation. City staff is working with the City's insurance company to replace the palm trees; however, the applicant has agreed to potentially replace any palm trees around the project site that the insurance may not replace. Agreement Terms: The proposed Site License Agreement will allow NewPath Networks, LLC (Carrier) to install, maintain and operate a single distributed antenna system node, in the form of a monopalm on City owned property. NewPath holds a valid full facilities -based certificate of public convenience and necessity (CPCN) issued by the California Public Utilities Commission on April 12, 2006. This action affords the Carrier to deploy its networks in the City's public right-of-way, however as a preference to the City, we have agreed with the Carrier to install the monopalm on City property. The site selected is preferred for its' proximity to other mature palm trees that provide a superior aesthetic fit. Being located on City property, staff was able to negotiate fees for use of public property. The proposed distributed antenna system is proposed for three, 10-year terms: 1. First 10 years, the City will receive a lump sum of $13,000.00 2. The second 10-year term will yield $19,234.00, including 4% escalator; and 3. The third 10-year term the City will receive $28,485.00 The proposed fees and terms are consistent with other distributed antenna system agreements. Crown Castle will be responsible for the maintenance of the monopalm and associated equipment. At the end of the 30-year term, Crown Castle will remove the antenna if the agreement is not extended and/or if the equipment is no longer in operation. Planning Commission Action: On November 20, 2012, the Planning Commission approved CUP 12-257 and adopted Resolution 2593, granting approval of the project on a 5-0 vote. The Architectural Review Commission granted preliminary approval on 8-0-1 vote with Commissioner Colombini abstaining. Wrda\Martin Alvarez\2012\SR\CrOWnCastleDASDWI2-13-12.doc Contract No. C32460 Staff Report Site License Agreement Crown Castle Monopalm at Desert Willow Page 3 of 3 December 13, 2012 Staff has reviewed the proposed monopalm location with Kemper Sport Management and the proposed project does not interfere or affect golf operations and the proposed monopalm is sited in a location that blends into other existing palm trees. Staff recommends approval. Fiscal Analysis The City will receive a lump sum of $13,000.00 the first year, $19,243.00 the 101" year and $28,485.00 on the 20t year. The proposed agreement will generate revenue to the City in the cumulative amount of $60,728.00 over the agreement's 30 year term. Submitted By: M rtin Alvarez Director of Economic Development M. Wohlmuth, City Manager Paul S. Gibson, Director of Finance CITY COUNCIL�TION APPROVED DENIED RECEIVED OTHER Original on File with City Jerk's Office GArda\Martin Alvarez\2012\SR\CrownCastleDASDWI2-13-12.doc I STATE OF CALIFORNIA Edmund G. Brown Jr., Govemor PUBLIC UTILITIES COMMISSION 5ft VAN NESS AVENUE SAN FRANCISCO, CA 94102-3296 April 16,2012 Cord Hute Synthesis Environmental Planning 6 Carmen Court Novato, CA 94945 Dear Mr. Hute: NewPath Networks, LLC. submitted a Notice of Proposed Construction (NPC) for authorization to proceed with the construction of the Palm Desert Distributed Antennae System (DAS) project. According to the NPC, the project involves the installation of fiber optic cable, DAS antenna nodes, and other associated equipment in the City of Palm Desert, California. The NPC requests the Energy Division to act upon NewPath's request for a determination that the project is consistent with the activities determined to be categorically exempt from the California Environmental Quality Act (CEQA) by the California Public Utilities Commission (Commission). On November 9, 2004 the Commission granted NewPath's request for a certificate of public convenience and necessity to provide inter/intra- local access and transport area services in California as a non -dominant interexchange carrier, On May 25, 2005, NewPath submitted A.05-05-021 seeking expansion of its authority to include the installation of DAS antennae, nodes, and other related equipment in California. Under D. 06-04-030, the Commission determined that the DAS projects proposed by NewPath would fall within one or more categorical exemptions identified under CEQA, and that further environmental review of these proposals would not be required. The Energy Division has reviewed NewPath's proposal to construct a DAS project in the City of Palm Desert, California and has determined that the proposed construction activities are consistent with the activities found by the Commission to be categorically exempt from the requirements of CEQA. The Energy Division hereby grants NewPath with the authority to proceed with the construction of the project as described in the NPC. Sincerely, eenseon'Uchida California Public Utilities Commission Regulatory Analyst SITE LICENSE AGREEMENT BETWEEN THE CITY OF PALM DESERT AND NEWPATH NETWORKS, LLC This Site License Agreement ("Agreement") is entered into as of September _, 2012 ("Effective Date") by and between the City of Palm Desert, a municipal corporation (the "City"), and NewPath Networks, LLC, a New Jersey limited liability company ("NewPath"). RECITALS A. NewPath 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 in public rights -of -way ("ROW"), and occasionally on property owned by various jurisdictions in the State of California B. NewPath 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. Pursuant to the rights afforded by the issuance of the CPCN, NewPath seeks to enter City owned property to install, maintain and operate a single distributed antenna system node, in the form of a monopalm ("DAS Facility"). NewPath's regulatory status as a CLEC affords it the ability to deploy its networks in the City's public right-of-way, however, as a preference to the City, the parties have agreed upon an alternate site on the City's property at the City's request. The DAS Facility will provide wholesale telecommunications services to NewPath's carrier customers, who will in turn provide wireless telecommunications and broadband services to the residents and visitors of the City ("Services"). The DAS Facility will be designed to accommodate an initial customer as a carrier providing the Services. The DAS Facility is designed to allow additional carriers, to provide the Services from the Network ("Additional Carriers") if such services are ordered. D. The DAS Facility includes, without limitation, antenna nodes, fiber repeaters and related equipment in the configuration depicted in Exhibit A, attached hereto and incorporated herein by reference, and to be located on City -owned property adjacent to the ROW as described and diagrammed in Exhibit B, attached hereto and incorporated herein by reference. E. NewPath has certain rights to use the City's ROW to deploy the Network under state and federal law, including, but not limited to, Public Utilities Code sections 1001, 7901 and 7901.1 and Government Code section 50030. The City has certain rights to control the time, place and manner of the installation of the Network. 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: 4- 72500.00001\764481 8,0444 001 ia310103 ARTICLE 1 INSTALLATION OF THE DAS FACILITY 1.1 Permitted Installation. 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 DAS Facility at the location depicted and described in Exhibit B. NewPath shall undertake and perform any work authorized by this Agreement in a skillful and workmanlike manner. The installation of the DAS Facility shall be made in accordance with the plans and specification attached hereto as Exhibit A and by this reference incorporated herein. 1.2 Compliance with Laws. This Agreement is subject to any and all applicable Laws and the parties shall comply with any such Laws in the exercise of their rights and performance of their obligations under this Agreement. "Laws" or "Law" as used in this Agreement means any and all statutes, constitutions, ordinances, resolutions, regulations, judicial decisions, rules, permits, approvals or other applicable requirements of the City or other applicable governmental entity or agency having joint or several jurisdiction over the parties to this Agreement or having jurisdiction that is applicable to any aspect of this Agreement, that are in force on the Effective Date and as they may be enacted, issued or amended during the term of this Agreement. 1.3 Permits. In addition to the Conditional Use Permit ("CUP") issued by the City for the DAS Facility, NewPath shall obtain any permits relating to the installation of the DAS Facility to the extent required by Law and/or the City's Municipal Code ("Code"), including without limitation, those permits listed below (the "Permits"). NewPath shall submit to the City, prior to installation, an application for review and conceptual approval of the DAS Facility. 1.3.1 Encroachment Permits. NewPath shall obtain any necessary encroachment permits from the City for the installation of the DAS Facility and for any other work within the City's ROW or property if required by the Code. 1.3.2 Building Permits. NewPath shall obtain any necessary building permits from the City for the installation of the DAS Facility and for any other work within the City's ROW or property if required by the Code. 1.3.3 Compliance with Permits. All work within the City's ROW or property shall be performed in strict compliance with the applicable Permits and all applicable regulatory requirements. 1.4 Coordination of Excavation with Other Permittees. At least thirty (30) days prior to commencing excavation work 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 property 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 property 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 perform work jointly with NewPath. To 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 -2- 72500.00001\764481 8044 001 ia310103 desires to perform work jointly on the City's property, provided that such User obtains any required agreement and permits from the City as required by the Code before such User performs any work on the City's property, including the installation of any facilities, or uses any facilities installed by NewPath on their behalf. 1.5 Fee. NewPath is solely responsible for the payment of all lawful fees in connection with NewPath's performance under this Agreement, including those set forth below. (a) Fee During Initial Term. To compensate the City for any costs incurred as a result of NewPath's entry upon and deployment on City's property, NewPath shall pay to the City, during the initial term of this Agreement, a one-time payment ("One -Time Fee") of Thirteen Thousand Dollars ($13,000). The One -Time Fee (as applicable) shall be due and payable not later than the sooner of: (i) 90 days from the Effective Date; or (ii) NewPath's receipt of the final permit required for the DAS Facility. (b) Fee During Renewal Terms. In the event that that this Agreement is continued in effect for a second and/or third 10-year term following the initial 10-year term, NewPath shall pay to the City a One -Time Fee of Nineteen Thousand Two Hundred Forty Three Dollars ($19,243) for the second 10-year term and Twenty Eight Thousand Four Hundred Eighty Five Dollars ($28,485) for the third 10-year term. 1.6 Access to the Site 1.6.1 NewPath will be given reasonable access to the Site for the purposes of routine installation, repair, maintenance or removal of the DAS Facility. Except in the event of an emergency, NewPath will provide the City at least five (5) days prior written notice of NewPath's intended access to the Site. Frankie Riddle, Director of Special Programs, her designee shall be City's contact for these purposes. 1.6.2 If an emergency repair of the DAS Facility is necessary, NewPath may be allowed reasonable access to the Site at any time. In the event of an emergency, NewPath will endeavor to provide the City contact person listed in Section 1.6.1 with prior written notice and will, in any event, provide written notice to the City of the emergency repair promptly after said repairs have been made. 1.6.3. NewPath shall allow a representative of the City to observe any repair, maintenance or removal work performed at the Site. 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 up to two successive ten (10) year periods unless either party delivers to the other party a written termination notice 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. -3- 72500.00001\764481 8044 001 ia310103 2.2 Termination of Use. Notwithstanding Section 2.1 above, NewPath may terminate its use of the DAS Facility by providing the City with sixty (60) days prior written notice. This Agreement shall remain in effect following NewPath's termination of use until NewPath has removed the DAS Facility and all ancillary equipment and facilities. ARTICLE 3 REMOVAL AND RELOCATION 3.1 Removal Due to Public Project. Except to the extent not pennitted 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 the DAS Facility, constructed, installed, used and/or maintained by NewPath under this Agreement, whenever the City reasonably determines that the removal and/or relocation of the DAS Facility 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 applicable 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 track; (b) because the DAS Facility 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. 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, all costs to relocate shall be borne by the developer. The City shall cooperate with NewPath in relocating the DAS Facility removed pursuant to this Section 3.1 in a manner that allows NewPath to continue providing service to its customers. 3.2 Removal Due to Termination. Except to the extent not permitted by Law, no later than sixty (60) days after termination of this Agreement pursuant to the provisions of this Agreement, NewPath shall, at its sole cost and expense, remove the DAS Facility and, if such removal disturbs the City's ROW or property, restore the City's ROW or property to its original condition, reasonable wear and tear excepted. Alternatively, the City may allow NewPath, in the City's sole and absolute discretion, to abandon the DAS Facility in place and convey it to the City. 3.3 Abandonment. In the event NewPath ceases to operate and abandons the DAS Facility, for a period of ninety (90) days or more, NewPath shall, at its sole cost and expense and no more than 30 days after expiration of the 90-day time period herein, vacate and remove the DAS Facility. If such removal disturbs the City's ROW or property, NewPath shall also, at its sole cost and expense, restore the City's ROW to its original condition, reasonable wear and tear excepted. Alternatively, the City may allow NewPath, in the City's sole and absolute discretion, to abandon the DAS Facility, or any part thereof, in place and convey it to the City. ARTICLE 4 MAINTENANCE AND REPAIR -4- 72500.00001 \764481 8.044 001 0310103 4.1 Electricity Use. NewPath shall pay for the electricity it consumes in its operations at the rate charged by the servicing utility company. 4.2 Maintenance and Repair. NewPath shall, at NewPath's sole cost and expense, perform all maintenance and repairs reasonably needed to maintain the DAS Facility in good condition and appearance, and in compliance with all applicable Laws. In the event any part of the DAS Facility requires replacement because such part cannot be repaired, NewPath shall, at NewPath's sole cost and expense, replace the irreparable part of the DAS Facility. City shall maintain any new landscaping and/or irrigation system installed by NewPath in connection with the DAS Facility. 4.3 Repair of City Property and 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 DAS Facility on City property or adjacent ROW ("NewPath's Activities"). NewPath shall promptly repair such damage and return the City's property and any affected adjacent ROW to a safe and satisfactory condition to the City and to the City's reasonable satisfaction. 4.4 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. 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 DAS Facility. 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 property may create a 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, at no cost to the City, in connection with any such challenge. ARTICLE 6 INDEMNIFICATION 6.1 Indemnity. NewPath shall indemnify, defend, and hold harmless the City, its councilmembers, officers, employees, agents, and contractors, from and against liability, claims, demands, losses, damages, fines, charges, penalties, administrative and judicial proceedings and -5- 72500.00001 \764481 8044 001 ia310103 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 councilmembers, 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 on NewPath's Liability. In no even shall NewPath be liable to the City for indirect, consequential, or punitive damages. 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 the DAS Facility, or any loss or degradation of the services provided by the DAS Facility resulting from any event or occurrence that is beyond the City's reasonable control. 6.3 Limitation of City's Liability. The City will be liable only for the cost of repair to the DAS Facility to the extent arising from the negligence or willful misconduct of City, its employees, agents, or contractors, and City will in no event be liable for indirect, consequential, or punitive damages. ARTICLE 7 INSURANCE NewPath shall, at its own cost, provide insurance, during the entire term of this Agreement, including any extension thereof, as described herein and ensure that all subcontractors used by NewPath to provide any construction services in connection with the DAS Facility provide insurance described herein. All insurance is to be placed with insurers authorized to do business in the State of California with an A.M. Best and Company rating level of A- or better, Class VI or better, or as otherwise approved by the City. Insurance shall include the following (or broader) coverage: Commercial General Liability coverage "occurrence" form and with minimum limits of $2,000,000 per occurrence and $4,000,000 in the aggregate. Policy shall be for bodily injury and property damage including coverages for contractual liability, personal injury, independent contractors, broadform property damage, products and completed operations. 2. Covering Automobile Liability, for Any Auto, with a minimum limit of $1,000,000 per accident. If the contractor owns no vehicles, this requirement may be satisfied by a non - owned and hired auto endorsement to NewPath's commercial general liability policy. 3. Workers' Compensation insurance complying with California worker's compensation laws, including statutory limits for workers' compensation and an Employer's Liability limit of $1,000,000 per accident or disease. 562 72500.00001 \764481 8044 001ia310103 Liability insurance policies required to be provided by NewPath hereunder shall contain or be endorsed to contain the following provisions: a) The City of Palm Desert, its officials, officers, employees, volunteers, and agents, shall be covered as additional insureds. Coverage shall apply to any and all liability arising out of the DAS Facility and/or this Agreement.Additional insured status for completed operations shall be provided either in the additional insured form or through another endorsement such as CG 20 37 with an edition date prior to 2004. b) General and automobile liability insurance shall apply separately to each insured against whom a claim is made or suit is brought, except with respect to the limits of the insurer's liability. Coverage will not be limited to City's vicarious liability. c) Liability coverage shall be primary and non-contributing with any insurance maintained by the City. d) Evidence of Coverage (including the workers' compensation and employer's liability policies) shall provide that coverage shall not be, canceled, without the City being provided prior written notice per the policy's terms. e) No liability insurance coverage provided to comply with this Agreement shall prohibit NewPath, or NewPath's employees, or agents, from waiving the right of recovery prior to a loss. NewPath waives its right of recovery against the City. f) NewPath agrees to deposit with City within fifteen days of the Effective Date hereof certificates of insurance and required endorsements. No work under this Agreement shall commence until (1) NewPath has provided City with any necessary insurance and required endorsements and (2) until such documents are approved by the City. There shall be no recourse against the City for payment of premiums or other amounts with respect to the insurance required to be provided by NewPath hereunder. Any failure, actual or alleged, on the part of the City to monitor compliance with these requirements will not be deemed as a waiver of any rights on the part of the City. City has no additional obligations by virtue of requiring the insurance set forth herein. In the event any of said policies of insurance are canceled, NewPath shall, prior to the cancellation date, submit new evidence of insurance in conformance with this Section to City. In the event any policy of insurance required under this Agreement does not comply with these requirements, or is canceled and not replaced, City has the right, but not the duty, to obtain the insurance it deems necessary and any premium paid by the City will be promptly reimbursed by NewPath, or the City will withhold amounts sufficient to pay premium from contractor payments. g) NewPath agrees to provide immediate notice to City of any claim or loss against NewPath arising out of the work performed under this agreement. City assumes no obligation or liability by such notice, but has the right (but not the duty) to monitor the handling of any such claim or claims if they are likely to involve City. -7- 72500.00001\764481 3044 001 ia310103 ARTICLE 8 MISCELLANEOUS PROVISIONS 8.1 No Waiver. The parties do not intend, and nothing in this Agreement shall be interpreted as, a waiver of any of NewPath's rights or the City's rights under state and/or federal law, including, but not limited to, Public Utilities Code section 7901 and 7901.1 and Government Code section 50030. 8.2 Nonexclusive Use. NewPath acknowledges that this Agreement does not provide NewPath with exclusive use of the City's ROW or any municipal property and that City retains the right to permit other providers of communications services to install equipment or devices in the City's ROW, on other City property 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 DAS Facility on the City's property. 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 Palm Desert 73 -5 10 Fred Waring Dr. Palm Desert, CA 92260 With a copy to: David Erwin Best Best & Krieger 74760 Highway I I I Suite 200 Indian Wells, CA 92210 NewPath: In 72500.00001\764481 3..044 001 ia310103 NewPath Networks, LLC Attn: Blake Hawk, General Counsel, Legal Department c/o Crown Castle USA Inc., 2000 Corporate Drive, Canonsburg, PA 15317 With a copy to: NewPath Networks, LLC Attn: Contracts Management 890 Tasman Drive Milpitas, CA 95035 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. 8.4.1 Transfers. (a) Third Party. NewPath shall provide thirty (30) days' prior written notice to the City prior to any proposed assignment or other transfer of the DAS Facility to a third party, other than as set forth below. No such assignment or transfer shall be valid or effective until the proposed assignee or transferee agrees in writing to comply with and be subject to all the terms and conditions of this Agreement and the Code, and until the City has consented to the assignment or transfer, which consent the City may grant or withhold in its sole discretion. Notwithstanding the foregoing, if the proposed assignee has equivalent regulatory status as NewPath, the City's consent to the proposed transfer will not be unreasonably withheld, conditioned, or delayed. (b) Normal Business and Affiliates. 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 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. 8.5 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. In 72500.00001\764481 8044 001 ia310103 8.6 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. 8.7 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 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. 8.8 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. 8.9 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. 8.10 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. 8.11 Exhibits. All Exhibits referenced in this Agreement are hereby incorporated as though set forth in full herein. 8.12 Drafting. The parties agree that this Agreement is the project of joint draftsmanship and that should any of the terms be determined by a court, or in any type of quasi- 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. 8.13 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. 8.14 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 -10- 72500.00001\764481 8044 001 W10103 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 Page] -11- 72500.00001 W64481 8..044 001 W 10103 IN WITNESS WHEREOF, the parties have signed this Agreement as of the date stated in the introductory clause. City of Palm Desert, a municipal corporation I0 City Manager Date: ATTEST: City Clerk APPROVED AS TO FORM: City Attorney NewPath Networks, LLC, a New Jersey limited liability company By': — Name: Title: Date: 72500.00001\764481 8044 001 ia310103 -12- EXHIBIT A Construction Drawings of the DAS Facility BIKE ccR°''� PALM DESERT Cro.r„GsSe DOW-02.. . Lqu066-uGO d t ° i 1 t s 1 1 1 FOR ALL LEASE DUCT SEE l a DWG SLA0086T 1 ? 1 1 1 i 1 4 1 lay 1i • t e .4 y 0 ('v 1 ADOA6-131.:;111 • F " C e < c LEGEND SYMBOLS HUB - AERIAL ROUTE 7487642nd42ntl AveAPALM DESERT SITE$ POLE TYPE RAO1 RA01 w, - - - — — UNDERGROUND LEASE DUCT PALM DESERT, CA 92211 IAaMP o1 UNDERGROUND ROUTE C'IWi5PCw�SI� StESL Pp,E afu nn STREET LIGHT POLE W ..• 3,T N-OCL De�.n M�epn d. STEEL POLE 1 FIBER FOOTAGE r JPA POLE d... AERIAL tT LEASE LM '/ "Y. � NUB LOCATION _.—...._—_ : BURIED 63wY OATE_061}12 SfBiTi0F1 ,.. 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A ^ — — ^ ^ ^ A A ^ ^ A �. ^ ^ �► �! � O Go al $; d LL. 00 uj o Jill WC`gg gid LLM1Y t. Ik t�l1<%i��� 0 R'- _ .1, NOW -_ -- - - - _ -- - .'.._ - - . 6I S m EXHIBIT B INSTALLATION LOCATION Attached behind this page are descriptions and diagrams indicating the location at which the DAS Facility covered by this Agreement will be installed. -14- 72500.00001\764481 6.3