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Home My WebLink About09-19-2017 Item 13 - Crown Castle Right of Way License Agreement Meeting Date: 9/19/2017 FROM: Daryl Grigsby, Public Works Director Prepared By: Jake Hudson, Transportation Manager SUBJECT: CROWN CASTLE RIGHT OF WAY LICENSE AGREEMENT RECOMMENDATION 1. Approve a Right of Way License Agreement with Crown Castle for the collocation of communications facilities on select City street lights and traffic signals; and 2. Authorize the City Manager to Execute the Right of Way License Agreement. DISCUSSION Crown Castle provides wireless infrastructure that services wireless communications carriers. Under the Telecommunications Act of 1996, Crown Castle seeks to collocate “Small Cell” radios on six traffic signals and street lights within the downtown. “Small Cell” radios provide the same function as traditional cell towers in a smaller and more discreet form. The objective of the Telecommunications Act of 1996 is to open up communications markets to competition by removing regulatory barriers. Under the Act the City cannot prohibit the installation & maintenance of such facilities but can regulate the design, placement, construction, and modification. Under this regulatory authority, the proposed Crown Castle facilities underwent minor and incidental architectural review and received approval (Attachment B). The Council is being asked to approve a Right of Way License Agreement with Crown Castle (Attachment A). The purpose of this agreement is to establish the terms under which the facilities maybe installed and maintained, fees to compensate the City for use of the public right of way, and indemnification of the City against any liability or damages associated with Crown Castle facilities. The term of the agreement is for ten years beginning on the execution date, with the possibility of two additional ten -year terms, unless either party terminates. CONCURRENCES The City Attorney and Building Official have reviewed and concur with approval of the Right of Way License Agreement. Packet Pg 97 13 FISCAL IMPACT The agreement will result in a $10,000 one-time fee and $6,000 in annual general fund revenues. The Right of Way License agreement includes a one-time fee of $10,000 to the City for processing and administering the agreement. In addition, the agreement includes and an on-going fee to the City of $1,000 per year for each City pole occupied by Crown Castle facilit ies. The current agreement includes 6 poles for a total revenue of $6,000 per year, increasing 3% annually. ALTERNATIVES 1. The Council may defer approval and direct staff to renegotiate certain terms of the agreement. 2. The Council may deny approval of a right of way agreement. Staff does not recommend this alternative because under the Telecommunication Act of 1996 the City would still be required to allow Crown Castle to install and maintain facilities in the public right of way regardless, in such a situation the City would not have the provisions and fees provided by a license agreement. Attachments: a - Crown Castle Right of Way License Agreement b - Crown Castle Architectural Review c - Agreement Exhibit A Packet Pg 98 13 - 1 - RIGHT-OF-WAY LICENSE AGREEMENT BETWEEN THE CITY OF SAN LUIS OBISPO AND CROWN CASTLE NG WEST LLC This Right-of-Way License Agreement (“Agreement”) is entered into as of [month day,2017] (“Effective Date”) by and between the City of San Luis Obispo, a municipal corporation and charter city (the “City”), and Crown Castle NG West LLC, a Delaware limited liability company (“Crown Castle”). RECITALS A. Crown Castle 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 Crown Castle’s wireless carrier customers through fiber-fed distributed antenna system facilities in public rights-of-way (“ROW”) in the State of California. B. Crown Castle 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 12, 2007 (Decision 07-04-045). C. Crown Castle seeks to enter certain portions of the City’s ROW to install, maintain and operate a telecommunications system (the “Network”). The Network will provide wholesale telecommunications services to Crown Castle’s carrier customers, who will in turn provide wireless telecommunications and broadband services to the residents and visitors of the City (“Services”). The Network will be designed to accommodate an initial customer as a carrier providing the Services (“Initial Carrier”). The Network also will allow additional carriers, to provide the Services from the Network (“Additional Carriers”). D. Features of the Network include equipment in a configuration substantially similar to the construction drawings and elevations depicted in Exhibit A and incorporated herein by reference (“Facilities”). E. Crown Castle 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 and the aesthetics of the Facilities, including the right to license the use of City’s poles located within the ROW. 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: ARTICLE 1 INSTALLATION OF THE NETWORK 1.1 License to Use City Poles. Subject to the terms and conditions in this Agreement, City hereby grants Crown Castle a non-exclusive license to use the City’s poles located within its right of way in the specific locations depicted in Exhibit A (the “City Poles”) in order Packet Pg 99 13 - 2 - to locate, place, attach, install, operate, use, control, repair, upgrade, enhance and maintain the Facilities. Any and all modifications to the Facilities which defeat the concealment elements of the current design shall require discretionary review and approval by City in accordance with its Zoning Code to ensure compliance with City’s stealthing regulations. Crown Castle shall undertake and perform any work authorized by this Agreement in a skillful and workmanlike manner. Crown Castle shall not install more equipment per City Pole without a written amendment to this Agreement. City reserves the right to grant rights to others on the same City Poles covered by this Agreement. 1.2 Expansion of the Network. During the term of this Agreement, Crown Castle may, through the City’s approval process for the type of facility considered, apply to expand the Network by using other locations within the City’s ROW not described in Exhibit A and request to amend this Agreement to include such locations. In the event additional sites are approved, and subject to mutual agreement at the time of approval of new facilities and sites, the parties may enter into an amendment to this Agreement that modifies Exhibit A to reflect the additional locations in the City’s ROW that Crown Castle 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 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 applicable statutes, constitutions, ordinances, resolutions, regulations, judicial decisions, rules, permits, approvals or other requirements of the City or other 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. 1.4 Permits. Crown Castle shall obtain any permits relating to the installation of the Network to the extent required by Law, including without limitation, those permits listed below (the “Permits”). Crown Castle shall submit to the City’s Community Development Department, prior to installation, an application, for review and conceptual approval of the proposed Facilities. Upon conceptual approval by the Community Development Department, Crown Castle shall then submit to the City’s Public Works Department an application for an encroachment permit, under the terms of this agreement, for approval, providing detailed installation drawings clearly showing all installation details and connections within the right-of-way and affecting City facilities. 1.4.1 Encroachment Permits. Crown Castle shall obtain any necessary encroachment permits and temporary traffic control approval from the City for any and all work within the City’s ROW if required by the City’s Municipal Code (“Code”). Packet Pg 100 13 - 3 - 1.4.2 Building Permits. Crown Castle shall obtain any necessary building permits from the City for the installation of the Network and for any other work within the City’s ROW if required by the Code. 1.4.3 Use Permits. Prior to the installation of any Crown Castle any wireless telecommunications facilities within the City’s right of way, Crown Castle shall obtain and all use permits from the City for installation of the Facilities, including, but not limited to, use permit approval under City Municipal Code section 17.16.120. 1.4.4 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. 1.4.5 Notification of Construction. Crown Castle shall notify in writing all businesses and residents within 200 feet of the installation 5 calendar days prior to start of work. 1.5 Coordination of Excavation with Other Permittees. Upon request from the City, and at least thirty (30) days prior to commencing excavation work in the City’s ROW pursuant to this Agreement, Crown Castle 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 Crown Castle and the City that such User desires to perform work jointly with Crown Castle. To the extent reasonably feasible, and subject to Crown Castle and User entering into a written agreement for such work and/or use, Crown Castle shall coordinate its work with any User who timely informs Crown Castle 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 Crown Castle on their behalf. Nothing in this section 1.5 is intended to cause delays to Crown Castle’s construction schedule. 1.6 Provision of Conduit for City Use & Coordination of Placement. Upon request from the City, Crown Castle shall install concurrent with its excavation activities, a 2” conduit for City’s exclusive and at no cost to the City. The design of such installation shall be per City standards. Crown Castle shall coordinate with the City’s contractor for splice box placement. 1.7 Fee. Crown Castle is solely responsible for the payment of all lawful fees in connection with Crown Castle’s performance under this Agreement, including those set forth below. (a) Permit Fees. Crown Castle will pay City standard Planning (building, use permit, etc.) and Encroachment permit fees associated with the proposal review, approval, and installation inspection. (b) Ongoing Fee. To compensate the City for the use of the City Poles and other infrastructure for Crown Castle’s facilities within the ROW, Crown Castle shall Packet Pg 101 13 - 4 - pay to the City, annually in advance, on the Effective Date and each anniversary thereafter, an annual fee (“Annual Pole Fee”). The Initial Annual Pole Fee shall consist of One Thousand Dollars ($1000.00) for each City Pole upon which Crown Castle’s Facilities are to be installed pursuant to this Agreement, and is payable to City upon execution and delivery of this Agreement and prior to Crown Castle installing any portion of the Network or any Facilities. The Annual Pole Fee thereafter shall increase by three percent (3%) per year on each anniversary of the Effective Date. (c) The Pole Fee shall be prorated when period of use is less than one year. If any portion of the Annual Pole Fee is not received by the City as provided above, then Crown Castle shall pay to City a late charge equal to ten percent (10%) of such overdue amount, as well as interest on the outstanding amount which shall accrue at lower of the rate of ten percent (10%) per annum, or the maximum legal rate of interest. Crown Castle and City agree that such late charge will automatically accrue by reason of any late payment by Crown Castle. Acceptance of such late charge by City shall in no event constitute a waiver of exercising any of the other rights or remedies granted hereunder. If any portion of the Annual Pole Fee is late by more than ninety (90) day, the Facilities shall be deemed abandoned, and the provisions of section 3.4 of this agreement shall apply. Reimbursement of City Processing. In addition to the above fees, concurrently with the execution and delivery of this Agreement, Crown Castle shall pay to the City the sum of Ten Thousand Dollars ($10,000), as reimbursement to the City for its costs in processing and administering this Agreement, including, but not limited to, staff processing and review time, City legal review, drafting and negotiations, and City management review and oversight. The processing costs paid by Crown Castle to the City pursuant to this Paragraph 1.6(c) shall be deemed earned when paid, and shall not be refunded in the event of an early termination of this Agreement. 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 two (2) successive ten (10) year periods unless either party delivers to the other party a written termination notice no sooner than one hundred eighty (180) days and no later than thirty (30) days prior to the scheduled end of a term. The term of any license granted pursuant to this Agreement shall be coextensive with the Term of this Agreement. 2.2 Termination Of Use At Specific Location by City. If City determines that a particular pole, traffic signal or other City owned property on which the Network or any Facilities are placed, is no longer needed for its intended City purpose, City may terminate this Agreement as to that location upon ninety (90) days written notice to Crown Castle. Crown Castle shall thereafter remove the Network or any Facilities at its sole cost and expense and the Annual Pole Fee prorated, and any excess refunded to Crown Castle. Packet Pg 102 13 - 5 - The City shall cooperate with Crown Castle in their relocation of any portion of the Network removed pursuant to this Section 2.2. 2.3 Termination of Use by City. Violation of any term, covenant, condition or provision contained herein shall be cause for immediate termination of this Agreement by City, unless corrected: immediately after verbal or written notice from City that Crown Castle’s Network or Facilities are causing harmful interference with City’s communications systems or Public Safety Systems (defined in Paragraph 3.2 below), traffic signal or street lighting operations, or otherwise constitute a threat to public health or safety; within ten (10) days after notice from City for non-payment of fees, failure to obtain required permits, or failure to provide proof of insurance, or within thirty (30) days after Crown Castle’s receipt of City’s written request to correct any other violation.. If such other violation cannot reasonably be corrected within such thirty (30) day period, the City shall not have the right to terminate this Agreement if Crown Castle immediately commences correction of the violation within such thirty (30) day period and thereafter diligently pursues such correction to completion. Notwithstanding the foregoing, Crown Castle’s failure to maintain its CPCN license or other required clearances from regulatory agencies, or violation of any Federal Communication Commission conditions, shall be cause for immediate termination of this Agreement. 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, Crown Castle, at its sole cost and expense, shall remove and relocate any part of the Network, constructed, installed, used and/or maintained by Crown Castle 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 traffic signals, street lights, sewers, water mains, drains, storm drains, pipes, gas mains, poles, power lines, telephone lines, cable television lines and tracks; (b) because any part of the Network is interfering with or adversely affecting the proper operation of City-owned light poles, traffic signals, telecommunications or other City facilities; or (c) to protect or preserve the public health and safety. The City shall cooperate with Crown Castle in their relocation of any portion of the Network removed pursuant to this Section 3.1 and facilitate utility relocation through the project work and with the construction contractor. Notwithstanding the forgoing, if the city issues a permit subsequent to the Effective Date of this Agreement to a private developer, and such work contemplated under the permit requires the removal or relocation of any of Crown Castle’s equipment subject to this Agreement, temporary or otherwise, those costs shall be borne by the developer. 3.2 Removal Due to Interference. Crown Castle warrants that Crown Castle’s equipment, use of equipment, and construction, repair and operation of the Network shall not damage Packet Pg 103 13 - 6 - or in any way interfere with the City’s traffic signal, telecommunications and street lighting operations. The City at all times during this Agreement, reserves the right to take any action it deems necessary, in its sole discretion, to repair, maintain, alter or improve the City signal and lighting facilities which may temporarily interfere with Crown Castle’s improvements as may be necessary in order to carry out any of such activities. The City agrees to reasonably cooperate with Crown Castle to carry out such activities with a minimum amount of interference with Crown Castles operations. In the event a City Pole is knocked down or otherwise damaged, the City assumes no responsibility for damage to Crown Castle’s Network or Facilities. Advanced notice is not required for emergency response or repairs. The City will make reasonable efforts to coordinate restoration of damaged poles and equipment, however, the reestablishment of safe working facilities for the public takes priority and supersedes reconnection of the Network. Crown Castle shall operate the Network or Facilities in a manner that will not cause harmful interference to: (a) other licensees or lessees of the ROW; (b) the public safety communications system used by City and other local agencies for public safety purposes (the “Public Safety System”); and (c) with communications systems operated by the City, regardless of when such systems are installed or their use commences. In the event Crown Castle’s Network or Facilities cause harmful interference with City’s communications equipment or the Public Safety System, and such interference is not cured within immediately after Crown Castle’s receipt of verbal or written notice from City, Crown Castle shall, immediately cease operation of the Network or Facilities until Crown Castle is able to cure and eliminate the interference to the satisfaction of the City Engineer. In the event City determines, in its sole and absolute discretion, that interference to the Public Safety System materially impacts the City’s or any other agencies’ public safety communications system, Crown Castle agrees to immediately cease operation of the Network or Facilities upon verbal or written notice by City. Crown Castle shall provide City with a contact person(s) who shall be available twenty- four hours a day, 365 days a year, to receive reports of any interference with City’s communications systems or Public Safety System or of threats to the public health or safety from the operation of Crown Castle’s Network or Facilities. Crown Castle shall immediately cease the operations creating the interference or threat when directed to do so by the City’s Fire Chief and/or Police Chief. Failure to immediately cease such operations shall be considered a material breach of this Lease. If City is unable to contact the designated contact person, or Crown Castle fails to immediately cease the operations creating the interference or threat after direction from City to do so, City shall have the right to take any action City deems necessary, in its sole discretion, to halt the interference or lessen the threat, and shall have no liability to Crown Castle, its assignees, transferees or sub-licensees, for City’s actions or damage to Crown Castle Network or Facilities in such circumstances. 3.3 Removal Due to Termination. Unless otherwise agreed in writing by City prior to termination or expiration of this Agreement, no later than ninety (90) days after termination of this Agreement pursuant to the provisions of this Agreement, Crown Packet Pg 104 13 - 7 - Castle shall, at its sole cost and expense, remove the Network and Facilities and, if such removal disturbs the City’s ROW and equipment, restore the City’s ROW and equipment to its original condition subject to approval of the Director of Public Works. 3.4 Abandonment. In the event Crown Castle ceases to operate or maintain or abandons the Network, or any part thereof, for a period of ninety (90) days or more, Crown Castle shall, at its sole cost and expense and no more than thirty (30) days after expiration of the ninety (90) day time period herein, vacate and remove the Facilities and the Network or the inoperable, non-maintained or abandoned part thereof, unless otherwise agreed in writing by City. If such removal disturbs the City’s ROW or equipment, Crown Castle shall also, at its sole cost and expense, restore the City’s ROW and equipment to its original condition subject to approval of the Director of Public Works. ARTICLE 4 MAINTENANCE AND REPAIR 4.1 Electricity Use. Crown Castle shall be solely responsible for providing electricity to its Network including, but not limited to, infrastructure, permitting, accounts, and payment with the servicing utility company. 4.2 Maintenance and Repair. Crown Castle shall, at Crown Castle’s sole cost and expense, perform all maintenance and repairs reasonably needed to maintain the Network in good condition and appearance, and in compliance with all applicable laws subject to approval of the City’s Public Works Director. Crown Castle acknowledges that any noticeable peeling paint, illegally placed stickers, graffiti or rust of the Facilities in comparison with their original appearance shall be deemed not to constitute “good condition and appearance.” In the event any part of the Network requires replacement because such part cannot be repaired, Crown Castle shall, at Crown Castle’s sole cost and expense, promptly replace the irreparable part of the Network. City shall have no obligation or responsibility to repair the Facilities or Network damaged or destroyed through action of any third party, including, but not limited to, motor vehicle accidents. Crown Castle shall be solely responsible for repairing or replacing, at Crown Castle’s sole expense, any such damage or destruction. While not required to do so, City may, at its discretion, clean and/or repair any defacement or damage caused by graffiti or other vandalism to the Facilities if Crown Castle fails to do so within two (2) business days of telephonic or electronic notice from the City, provided such repair and/or cleaning do not impair the ability of Crown Castle to operate or maintain the Facilities. In the event that the City undertakes such cleanup activities, Crown Castle shall, within thirty (30) days following its receipt of an invoice therefore, pay to the City its actual costs of such cleanup activities plus 15 % to cover the City’s overhead and invoicing costs. Crown Castle acknowledges that, in addition to the remedies provided herein, the existence of any graffiti or other vandalism is prohibited pursuant to Section 17.17.075.G of the City’s Municipal Code and subject to enforcement, including, but not limited to, administrative citations. Packet Pg 105 13 - 8 - 4.3 Repair of ROW. Crown Castle shall be responsible for any damage, ordinary wear and tear excepted, to street pavement, existing facilities and utilities, curbs, gutters, sidewalks, landscaping, traffic signals and traffic signal equipment, and all other public or private facilities to the extent caused by Crown Castle’s construction, installation, maintenance, access, use, repair, replacement, relocation, or removal of the Network and Facilities in the City’s ROW (“Crown Castle’s Activities”). Crown Castle 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 engineering standards and specifications or to the property owner if not the City or as directed by the Director of Public Works. Crown Castle’s obligations under this Section 4.3 shall survive for one (1) year past the completion of such repair and restoration work and return of the affected part of the City’s ROW by Crown Castle to the City. 4.4 Bond. Crown Castle shall provide a bond or other security approved by City in an amount determined by the City Engineer to represent the estimated cost of Crown Castle’s obligations under Sections 3 and 4 of this Agreement, which the City may require Crown Castle to increase from time to time to reflect the reasonable estimated cost of performing such obligations, to secure performance of Crown Castle’s obligations under Sections 3 and 4. The amount of the bond or other security shall not be increased more frequently than every five years unless Crown Castle expands the Network, in which case the bond may be reasonably increased to reflect any increased costs of Crown Castle’s obligations. ARTICLE 5 TAXES 5.1 Taxes. Crown Castle 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, including possessory interest taxes. The City hereby advises, and Crown Castle recognizes and understands, that Crown Castle’s use of the City’s ROW may create a possessory interest subject to real property taxation and that Crown Castle may be subject to the payment of real property taxes levied on such interest. Crown Castle will cooperate with the San Luis Obispo County Assessor in providing any information necessary for the Assessor to make a property tax determination. Crown Castle reserves the right to challenge any such assessment, To the extent the County requires the consent of City, as owner of the ROW, to the challenge, City will consent to the filing of the challenge. Crown Castle shall bear all costs and expenses of the challenge. ARTICLE 6 INDEMNIFICATION 6.1 Indemnity. To the fullest extent allowed by law, Crown Castle shall indemnify, defend, and hold harmless the City, its councilmembers, officials, officers, employees, agents, and contractors, from and against any and all 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 Packet Pg 106 13 - 9 - attorneys’ fees and costs of defense to the extent directly or proximately resulting from Crown Castle’s Activities undertaken pursuant to this Agreement, except to the extent arising from or caused by the sole negligence or willful misconduct of the City, its councilmembers, officers, employees, agents, or contractors. The City shall promptly notify Crown Castle of any claim, action or proceeding covered by this Section 6.1. Crown Castle will in no event be liable for indirect, punitive, or consequential damages. Crown Castle’s obligation under this Section 6.1 shall survive termination or expiration of this Agreement. 6.2 Waiver of Claims. Crown Castle waives any and 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. 6.3 Limitation of City’s Liability. The City will be liable only for the cost of repair to damaged portions of the Facilities arising from the sole negligence or willful misconduct of City, its employees, agents, or contractors, and City will in no event be liable for indirect, punitive or consequential damages. ARTICLE 7 INSURANCE 7.1 Minimum Insurance Requirements. Crown Castle 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. Crown Castle shall at all times during the term of this Agreement carry, maintain, and keep in full force and effect, insurance as follows: (i) General Liability: A policy or policies of Commercial General Liability Insurance, with minimum limits 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 Crown Castle. 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. The policy shall have a contractual liability endorsement covering Crown Castle’s indemnification obligations under this Agreement. (ii) Automobile Liability: A policy or policies of Commercial 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 Crown Castle in performing the work covered by this Agreement. Packet Pg 107 13 - 10 - (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; unless provided, however, if Crown Castle’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 Crown Castle’s deductible, and (ii) insurer’s obligation to pay covered claims is triggered irrespective of whether or not the insured pays the deductible. (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, employees, contractors, agents 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) Crown Castle’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 Crown Castle’s insurance and shall not contribute with it. (3) Any failure of Crown Castle to comply with reporting provisions of the policies shall not affect coverage provided to the Insureds. (4) Crown Castle’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. Each 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. (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 Crown Castle 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 the insurer agrees to provide at least thirty (30) days’ prior written notice of any cancellation to the City. If for any reason insurance coverage is canceled or, reduced in coverage or in limits, Crown Castle 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. Packet Pg 108 13 - 11 - (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. Crown Castle shall furnish the City with certificates of insurance required by this Article 7. 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 Crown Castle hires any subcontractors, independent contractors or agents (“Secondary Parties”) to locate, place, attach, install, operate, use, control, replace, repair or maintain the Network, Crown Castle shall require the Secondary Parties to obtain and maintain insurance similar in form and substance as that required by Section 7.1 of this Agreement. 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 Crown Castle’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. Crown Castle acknowledges that this Agreement does not provide Crown Castle 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. Crown Castle 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 delivery systems, postage prepaid, to the following address or such other address of which a party may give written notice: City: City of San Luis Obispo Public Works Director 919 Palm Street San Luis Obispo, CA 93401 With a copy to: City of San Luis Obispo, City Attorney 990 Palm Street San Luis Obispo, CA 93401 Packet Pg 109 13 - 12 - Crown Castle: Crown Castle NG West LLC c/o Crown Castle 2000 Corporate Drive Canonsburg, PA 15317-8564 Attn: Ken Simon, General Counsel (724) 416-2000 with a copy which shall not constitute notice to: Crown Castle NG West LLC c/o Crown Castle 2000 Corporate Drive Canonsburg, PA 15317-8564 Attn: Small Cell Contracts Administration (724) 416-2000 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, or three (3) business days after deposit in the US mail, addressed as above, postage prepaid. Either party may change its address by notice to the other party at the address above, or at a previously noticed new address. 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. 8.5 Transfers and Assignment. Crown Castle shall not assign, transfer or sublicense this Agreement, the Network or Facilities, or any interest therein, (individually or collectively, an “Assignment”) without the prior written consent of City, which shall not be unreasonably withheld. Crown Castle shall provide thirty (30) days’ prior written notice to the City prior to any Assignment to a third party. 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; the transferee’s agreement, insurance, nature of proposed transferee’s business and details of its business experience and contact information for notices have been delivered to City; and City has consented to the Assignment. Any approved transferee shall be jointly and severally liable with Crown Castle for the payment of fees and performance of the terms of this Agreement. No approved Assignment shall be binding on City until such transferee shall deliver to City a counterpart of the transfer agreement which contains a covenant of assumption by transferee but the failure or refusal to execute or deliver such instrument shall not release transferee from its liability under this Agreement. Any unauthorized Assignment shall be null and void and City shall have the right to immediately terminate this Agreement upon such unauthorized assignment. Without limiting any provision in this Agreement to the contrary, Crown Castle may in the ordinary course of its business, with notice but without the prior written consent of the City, subject to the terms of this Agreement: (a) lease the Network, or any portion thereof, to another person, subject to the terms of this Packet Pg 110 13 - 13 - Agreement, ; or (b) offer or provide capacity or bandwidth from the Network to another person; (c) assign this Agreement and any contract to any entity which controls, is controlled by or which is under common control with Crown Castle or to any entity acquiring all or substantially all of the assets of Crown Castle provided that whether Crown Castle does any of these three things listed in (a) – (b) of this section, it or one of its affiliates 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 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 San Luis Obispo County and the state courts located in San Luis Obispo 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. Packet Pg 111 13 - 14 - 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 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. 8.14 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. 8.16 No Relocation Assistance. Crown Castle acknowledges that it is not entitled to relocation assistance or any other benefits under the Uniform Relocation Assistance Act or any other applicable provision of law upon termination of this Agreement. 8.17 Time. Time is of the essence of this Agreement. [Signatures Begin on Following Page] Packet Pg 112 13 - 15 - IN WITNESS WHEREOF, the parties have signed this Agreement as of the date stated in the introductory clause. City of San Luis Obispo, a Municipal Corporation By: Heidi Harmon, Mayor ATTEST _____________________________ Carrie Gallagher, City Clerk Crown Castle NG West LLC, a Delaware limited liability company By: Name: Title: Date:_______________________________ APPROVED AS TO FORM: Christine Dietrick, City Attorney By: Name: Title: Date:______________________________ Packet Pg 113 13 3261119.2 -16- EXHIBIT A Construction Drawings of the Facilities Packet Pg 114 13 Packet Pg 115 13 Packet Pg 116 13 Packet Pg 117 13 Packet Pg 118 13 Packet Pg 119 13 Packet Pg 120 13 Packet Pg 121 13 Packet Pg 122 13 Packet Pg 123 13 Packet Pg 124 13 Packet Pg 125 13 Packet Pg 126 13 Packet Pg 127 13 Packet Pg 128 13 Packet Pg 129 13 Packet Pg 130 13 Packet Pg 131 13 Packet Pg 132 13 Packet Pg 133 13 Packet Pg 134 13 Packet Pg 135 13 Packet Pg 136 13 Packet Pg 137 13 Packet Pg 138 13 Packet Pg 139 13 Packet Pg 140 13 1050 Southwood DriveSan Luis Obispo, CA 93401P 805.544.7407 F 805.544.3863Packet Pg 14113 1050 Southwood DriveSan Luis Obispo, CA 93401P 805.544.7407 F 805.544.3863Packet Pg 14213 Packet Pg 143 13 Packet Pg 144 13 Packet Pg 145 13 Packet Pg 146 13 Packet Pg 147 13 Packet Pg 148 13 Packet Pg 14913 Packet Pg 150 13 Packet Pg 151 13 TOTAL CONSTRUCTION TOTALS: 712.00' PROJECT NUMBER: VZ252660CAUFC01 CITY OF SAN LUIS OBISPO TRENCH DATA DATA BLOCK CONDUIT DISTANCE CONDUIT CT.CONDUIT SIZE LEGEND Jon Schweers Jason Jimenez ENGINEERING solutions SCALE: 1" = 30' FIBER DRAWING x x x x x x x x x x F-1 Packet Pg 152 13 TOTAL CONSTRUCTION TOTALS: 663.00' PROJECT NUMBER: VZ252660CAUFC01 CITY OF SAN LUIS OBISPO TRENCH DATA DATA BLOCK CONDUIT DISTANCE CONDUIT CT.CONDUIT SIZE LEGEND Jon Schweers Jason Jimenez ENGINEERING solutions SCALE: 1" = 30' x x x x x x x x x x FIBER DRAWING F-2 Packet Pg 153 13 TOTAL CONSTRUCTION TOTALS: 889.00' PROJECT NUMBER: VZ252660CAUFC01 CITY OF SAN LUIS OBISPO TRENCH DATA DATA BLOCK CONDUIT DISTANCE CONDUIT CT.CONDUIT SIZE LEGEND Jon Schweers Jason Jimenez ENGINEERING solutions SCALE: 1" = 30'TTTTTTTTTTTx x x x x x x x x x FIBER DRAWING F-3 Packet Pg 154 13 TOTAL CONSTRUCTION TOTALS: 356.00' PROJECT NUMBER: VZ252660CAUFC01 CITY OF SAN LUIS OBISPO TRENCH DATA DATA BLOCK CONDUIT DISTANCE CONDUIT CT.CONDUIT SIZE LEGEND Jon Schweers Jason Jimenez ENGINEERING solutions SCALE: 1" = 30'TTTTTTTTTTTTTTTTTTx x x x x x x x x x FIBER DRAWING F-4 Packet Pg 155 13 '0& 41#&914-#*'#& 914- 41#&.'(6.#0' #*'#& %.15'&%.15'& .#0'4+)*6.#0' #*'#& %.15'& 914- 5*17.&'4 691.#0'5 #*'#& %.15'& 4+)*6 %.15'& 5+&'9#.- 67404+)*6 4+)*6.#0' /756 6740.'(6 .'(6.#0' /756691.#0'5 #*'#& %.15'& .'(6 .#0' 0#4419 5+&'9#.-%.15'& %4155*'4' #*'#& %.15'& 41#& $+-'.#0' #*'#& %.15'& PROJECT NUMBER: VZ252660CAUFC01 CITY OF SAN LUIS OBISPO Traffic Control Notes: 1.All traffic control work for construction shall conform to the latest edition of the California Manual on Uniform Traffic Control Devices (MUTCD) Latest Edition. 2.The contractor shall have all signs, delineators, barricades, etc., properly installed prior to commencing construction. 3.Additional traffic controls, traffic signs, or barricading may be UHTXLUHGLQWKHILHOG7KHFRQWUDFWRUVKDOOEHUHVSRQVLEOHIRUWKH placement of any additional devices necessary to assure safety to the public at all times during construction. 4.Move delineators and/or cones to sidewalk during non-working hours, remove barricades etc. from travel lane, and remove or turn off signs during non-work hours. #*'#& 914- 41#& #*'#& 914- 41#& #*'#& 914- 41#& #*'#& 914- 41#& #*'#& 914- 41#& '0& 41#&914- '0& 41#&914- '0& 41#&914- '0& 41#&914- #*'#& 914- 41#& '0& 41#&914- '0& 41#&914- SCALE: 1" = 40' 4+)*6.#0' #*'#& %.15'& %.15'& .#0' %.15'& .#0' %.15'& .#0' FIBER TCP T-1 Packet Pg 156 13 '0& 41#&914-#*'#& 914- 41#&.'(6.#0' #*'#& %.15'&%.15'& .#0'4+)*6.#0' #*'#& %.15'& 914- 5*17.&'4 691.#0'5 #*'#& %.15'& 4+)*6 %.15'& 5+&'9#.- 67404+)*6 4+)*6.#0' /756 6740.'(6 .'(6.#0' /756691.#0'5 #*'#& %.15'& .'(6 .#0' 0#4419 5+&'9#.-%.15'& %4155*'4' #*'#& %.15'& 41#& $+-'.#0' #*'#& %.15'& PROJECT NUMBER: VZ252660CAUFC01 CITY OF SAN LUIS OBISPO Traffic Control Notes: 1.All traffic control work for construction shall conform to the latest edition of the California Manual on Uniform Traffic Control Devices (MUTCD) Latest Edition. 2.The contractor shall have all signs, delineators, barricades, etc., properly installed prior to commencing construction. 3.Additional traffic controls, traffic signs, or barricading may be UHTXLUHGLQWKHILHOG7KHFRQWUDFWRUVKDOOEHUHVSRQVLEOHIRUWKH placement of any additional devices necessary to assure safety to the public at all times during construction. 4.Move delineators and/or cones to sidewalk during non-working hours, remove barricades etc. from travel lane, and remove or turn off signs during non-work hours. #*'#& 914- 41#& #*'#& 914- 41#& #*'#& 914- 41#& #*'#& 914- 41#& #*'#& 914- 41#& #*'#& 914- 41#& %.15'& .#0'4+)*6.#0' #*'#& %.15'& '0& 41#&914- '0& 41#&914-'0& 41#&914- '0& 41#&914- '0& 41#&914- SCALE: 1" = 40'TTTTT#*'#& 914- 41#& %.15'& .#0'.'(6.#0' #*'#& %.15'& %.15'& .#0' %.15'& .#0' %.15'& .#0' FIBER TCP T-2 Packet Pg 157 13 '0& 41#&914-#*'#& 914- 41#&.'(6.#0' #*'#& %.15'&%.15'& .#0'4+)*6.#0' #*'#& %.15'& 914- 5*17.&'4 691.#0'5 #*'#& %.15'& 4+)*6 %.15'& 5+&'9#.- 67404+)*6 4+)*6.#0' /756 6740.'(6 .'(6.#0' /756691.#0'5 #*'#& %.15'& .'(6 .#0' 0#4419 5+&'9#.-%.15'& %4155*'4' #*'#& %.15'& 41#& $+-'.#0' #*'#& %.15'& PROJECT NUMBER: VZ252660CAUFC01 CITY OF SAN LUIS OBISPO Traffic Control Notes: 1.All traffic control work for construction shall conform to the latest edition of the California Manual on Uniform Traffic Control Devices (MUTCD) Latest Edition. 2.The contractor shall have all signs, delineators, barricades, etc., properly installed prior to commencing construction. 3.Additional traffic controls, traffic signs, or barricading may be UHTXLUHGLQWKHILHOG7KHFRQWUDFWRUVKDOOEHUHVSRQVLEOHIRUWKH placement of any additional devices necessary to assure safety to the public at all times during construction. 4.Move delineators and/or cones to sidewalk during non-working hours, remove barricades etc. from travel lane, and remove or turn off signs during non-work hours. #*'#& 914- 41#& #*'#& 914- 41#& #*'#& 914- 41#& '0& 41#&914- '0& 41#&914- '0& 41#&914- SCALE: 1" = 40'TTTTTTTTTTTTTTTTTTTTT#*'#& 914- 41#& #*'#& 914- 41#& '0& 41#&914- '0& 41#&914- %.15'& .#0' %.15'& .#0' FIBER TCP T-3 Packet Pg 158 13 '0& 41#&914-#*'#& 914- 41#&.'(6.#0' #*'#& %.15'&%.15'& .#0'4+)*6.#0' #*'#& %.15'& 914- 5*17.&'4 691.#0'5 #*'#& %.15'& 4+)*6 %.15'& 5+&'9#.- 67404+)*6 4+)*6.#0' /756 6740.'(6 .'(6.#0' /756691.#0'5 #*'#& %.15'& .'(6 .#0' 0#4419 5+&'9#.-%.15'& %4155*'4' #*'#& %.15'& 41#& NOT TO SCALE $+-'.#0' #*'#& %.15'& PROJECT NUMBER: VZ252660CAUFC02A CITY OF SAN LUIS OBISPO Traffic Control Notes: 1.All traffic control work for construction shall conform to the latest edition of the California Manual on Uniform Traffic Control Devices (MUTCD) Latest Edition. 2.The contractor shall have all signs, delineators, barricades, etc., properly installed prior to commencing construction. 3.Additional traffic controls, traffic signs, or barricading may be UHTXLUHGLQWKHILHOG7KHFRQWUDFWRUVKDOOEHUHVSRQVLEOHIRUWKH placement of any additional devices necessary to assure safety to the public at all times during construction. 4.Move delineators and/or cones to sidewalk during non-working hours, remove barricades etc. from travel lane, and remove or turn off signs during non-work hours. #*'#& 914- 41#& #*'#& 914- 41#& #*'#& 914- 41#& #*'#& 914- 41#& #*'#& 914- 41#& #*'#& 914- 41#& .#0' 0#4419 .#0' 0#4419 '0& 41#&914- '0& 41#&914- '0& 41#&914- '0& 41#&914- '0& 41#&914- '0& 41#&914- MANHOLE TCP T-4 Packet Pg 159 13 '0& 41#&914-#*'#& 914- 41#&.'(6.#0' #*'#& %.15'&%.15'& .#0'4+)*6.#0' #*'#& %.15'& 914- 5*17.&'4 %.15'& 5+&'9#.- 67404+)*6 4+)*6.#0' /756 6740.'(6 .'(6.#0' /756.#0' 0#4419 5+&'9#.-%.15'& %4155*'4' #*'#& %.15'& 41#& NOT TO SCALE $+-'.#0' #*'#& %.15'& PROJECT NUMBER: VZ252660CAUFC02B CITY OF SAN LUIS OBISPO Traffic Control Notes: 1.All traffic control work for construction shall conform to the latest edition of the California Manual on Uniform Traffic Control Devices (MUTCD) Latest Edition. 2.The contractor shall have all signs, delineators, barricades, etc., properly installed prior to commencing construction. 3.Additional traffic controls, traffic signs, or barricading may be UHTXLUHGLQWKHILHOG7KHFRQWUDFWRUVKDOOEHUHVSRQVLEOHIRUWKH placement of any additional devices necessary to assure safety to the public at all times during construction. 4.Move delineators and/or cones to sidewalk during non-working hours, remove barricades etc. from travel lane, and remove or turn off signs during non-work hours.&'6174&'6174&'6174&'6174 #*'#& 914- 41#& #*'#& 914- 41#& #*'#& 914- 41#& #*'#& 914- 41#& &1016 '06'4 &1016 '06'4 %.15'& 41#& &'6174 #*'#& &'6174 #*'#& %.15'& 41#& #*'#& 914- 41#& '0& 41#&914- '0& 41#&914- MANHOLE TCP T-5 Packet Pg 160 13 Date:May 20 , 2015Scale: No ScaleDwg. 1 of 3 Rev. # 0Crown Castle Project252660222 E. Carrillo StreetSanta Barbara, Ca. 93101805-704-49090AT&T ManholesCrown Castle Nodes125Ft250Ft375Ft500FtMH 3501Central Office VaultMH 3000MH 3302MH 3202203'260'285'Packet Pg 16113 Date:May 20 , 2015Scale: No ScaleDwg. 2 of 2 Rev. # 0Crown Castle Project2526600To MH 3203 Mill StreetVicinity SketchMH 3501222 E. Carrillo StreetSanta Barbara, Ca. 93101805-704-4909MH 3000 Chorro Street MH 3001 To MH 33010 Morro Street Osos Street MH 3502MH 3000To MH 3203 To CO Vault MH 3501To MH 3302To MH 3501Packet Pg 16213 Date:May 20 , 2015Scale: No ScaleDwg. 1 of 2 Rev. # 0Crown Castle Project2526600To MH 3203Morro StreetVicinity SketchMH 3002 222 E. Carrillo StreetSanta Barbara, Ca. 93101805-704-4909MH 3302 Monterey Street MH 3203To MH 3302To MH 3002To MH 3000MH: 33020Palm Street Mill Street MH 3000MH: 3002Packet Pg 16313 Packet Pg 16413 Packet Pg 16513 Page intentionally left blank. Packet Pg 166 13