HomeMy WebLinkAboutContract 1538 0",, fg3e,i
ORIGINAL
RIGHT-OF-WAY AGREEMENT BETWEEN
THE CITY OF CATHEDRAL CITY AND NEWPATH NETWORKS,LLC
This Right-of-Way Agreement("Agreement") is entered into as of 1) w.1g
2012("Effective Date")by and between the City of Cathedral City,a municipal corporation(the
"City"), and NewPath Networks, LLC, a New Jersey limited liability company, and wholly
owned indirect subsidiary of Crown Castle ("NewPath"). City and NewPath are sometimes
referred to hereinafter individually as a"Party"and collectively as the"Parties".
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")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 the City's ROW to install, maintain and operate a distributed antenna system (the
'Network"). The Network 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 Network will be designed to
accommodate an initial customer as a carrier providing the Services. The Network also will
allow additional carriers, to provide the Services from the Network("Additional Carriers").
D. Some features of the Network include, without limitation, antenna nodes, fiber
repeaters and related equipment in a configuration substantially similar to the construction
drawings and elevations depicted in Exhibit A, attached hereto and incorporated herein by
reference, and to be located on streetlights and other approved structures at certain locations
described and diagrammed in Exhibit B, attached hereto and incorporated herein by reference
("DAS Facilities").
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, and in certain circumstances, the aesthetic
components of above-ground structures erected or replaced by NewPath in the City's ROW.
In consideration of the Recitals set forth above,which are incorporated in the Agreement,
as though fully set forth, the terms and conditions of this Agreement and other valuable
consideration,the adequacy of which is hereby acknowledged,the Parties agree as follows:
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ARTICLE I
INSTALLATION OF THE NETWORK
1.1 Permitted Installation. Subject to the provisions of this Agreement, NewPath may at
NewPath's sole cost and expense and during the term of this Agreement, locate, place, attach,
install, operate, use, control, repair, upgrade, enhance and maintain the Network in the City's
ROW. Any proposed upgrades and/or enhancements to the Network shall be subject to prior
City review and shall only be performed following the issuance of any applicable permits
required by the City. As part of the Network,NewPath also may install the DAS Facilities at the
locations within the City's ROW depicted and described in Exhibit B. NewPath shall undertake
and perform any work authorized by this Agreement in a skillful and workmanlike manner.
1.2 Expansion of the Network. During the term of this Agreement,NewPath may,pursuant
to the prior written approval and/or any and only subsequent to receiving all permits required by
the City, expand the Network by using other locations within the City's ROW not described in
Exhibit B. In such an event, the Parties shall enter into an amendment to this Agreement that
modifies Exhibit B to reflect the additional locations in the City's ROW that NewPath desires to
use. Except as otherwise agreed to by the Parties in writing, any expansion of the Network
pursuant to this Section 1.2 shall be subject to the terms and conditions of this Agreement, as
may be amended from time to time by written agreement of the Parties.
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 statutes, constitutions, ordinances, resolutions, regulations, judicial decisions, mules,
permits, approvals or other applicable requirements of the City (including the City's Municipal
Code)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(as that term is defined in Section 8.17 of this Agreement),and
as they may be enacted,issued or amended during the term of this Agreement.
1.4 Permits. NewPath shall obtain any and all permits relating to the installation of the
Network to the extent required by Law, including without limitation,those permits listed below
(the"Permits"). NewPath shall submit to the City's Planning Department,prior to installation,
an application, for review and conceptual approval of the proposed DAS Facilities, Streetlights,
Structures,and appurtenances. So long as the proposed Equipment is in substantial conformance
of Equipment listed in Exhibit A of this Agreement and in compliance with Laws, non-
discretionary permits will be approved administratively by the City Manager or his/her designee.
1.4.5. Any and all City-issued permits (both discretionary and non-discretionary)
including,but not limited to Conditional Use Permit Numbers 12-003 through and including 12-
007 are hereby incorporated and made part of this Agreement by this reference.
1.4.1 Encroachment Permits. NewPath shall obtain any necessary encroachment
permits from the City for the installation of the Network and for any other work within the City's
ROW if required by the City's Municipal Code("Code")or other applicable Laws.
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1.4.2 Building Permits. NewPath shall obtain any necessary building permits from the
City for the installation of the Network and for any other work within the City's ROW if
required by the Code.
1.4.3 Compliance with Permits. All work within the City's ROW shall be performed in
strict compliance with the applicable Permits and all applicable regulatory requirements and
Laws.
1.4.4. Discretionary Permits. NewPath shall comply with all conditions of approval and
all requirements,for any and all permits related to the DAS Facilities and Network,including but
not limited to Conditional Use Permit Numbers 12-003 through and including 12-007 and any
Design Review approval.
1.5 Coordination of Excavation with Other Permittees. At least sixty (60) days prior to
commencing excavation work in the City's ROW pursuant to this Agreement,and in compliance
with all Laws,NewPath shall notify in writing,on a form approved by the City,all other existing
or potential users ("User") of the City's ROW which are: (a) shown on the list of users
maintained by the City; and (b) are likely to be affected by such excavation work. The notice
shall describe the work to be performed,the specific ROW of the City that will be used,and the
time when such work will be performed. Each User receiving such notice shall have thirty(30)
days from the date thereof to inform in writing NewPath and the City that such User desires to
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 and the City 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 Law before such User performs any work in the City's
ROW, including the installation of any facilities, or uses any facilities installed by NewPath on
their behalf.
1.6 NewPath's Streetlights and other Structures. It is understood that NewPath will
replace the streetlight poles required for the DAS Facilities,the locations of which are shown in
Exhibit B, with new streetlight poles capable of supporting the DAS Facilities ("Replacement
Poles"). NewPath shall also construct and install any and all new structures which may be
required to support the DAS facilities and have received prior approval of the City ("New
Structures").
1.6.1 NewPath shall construct the Replacement Poles and New Structures in
compliance with all applicable Permits, conditions of approval, laws,codes and ordinances, and
all specifications approved by City,and shall correct any area of noncompliance upon demand.
1.6.2 NewPath shall be solely responsible for the ongoing maintenance and upkeep of
the Replacement Poles and New Structures, and shall make any required repairs and/or
replacements within thirty (30) days of a request from the City. In addition, all Replacement
Poles and New Structures shall be annually inspected by NewPath and the City to ensure that all
fading,cracking,discoloration or other defects are adequately remedied, in addition,the Parties,
hereby acknowledge that the Replacement Poles and New Structures will be owned,maintained,
and operated by NewPath.
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1.6.3. With respect to Conditional Use Permit No. 12-007, condition Number 12,
NewPath shall make the Saguaro Cactus a natural green hue relative to the species.
i.7 Fee. NewPath is solely responsible for the payment of all fees in connection with
NewPath's performance under this Agreement,including those set forth below.
(a) Fee. To compensate the City for any costs incurred as a result of NewPath's entry
upon and deployment within the ROW, NewPath shall pay to the City a fee that
consists of a one-time payment of Thirteen Thousand Dollars ($13,000 Dollars)
("Pole Free").
The Pole Fee shall be prorated as appropriate and shall be multiplied by the
number of Replacement Poles and New Structures. The Pole Fee shall be due and
payable not later than forty five(45)days after the Installation Date. "Installation
Date" means the date that the Network is first fully installed by NewPath pursuant
to this Agreement and ready to provide the Services. An additional Pole Fee shall
be due and payable to the City within 45 days of each date that this Agreement is
continued by the Parties for an additional ten-year term.
ARTICLE 2
TERM AND TERMINATION
2.I Term. The initial term of this Agreement shall be for ton (10) years beginning on the
Effective Date of this Agreement ("Initial Term"). Provided that the Conditional Use Permit
Numbers 12-003 through and including 12-007 are re-approved by the City prior to the end of
the Initial Term, this Agreement shall continue for an additional ten (10) year period unless
either Party delivers to the other Party a written termination notice within one hundred eighty
(180) days prior to the expiration of the Initial Term or any subsequent 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. Notwithstanding Section 2.1 above, NewPath may terminate its
use of any or all of the Network at any time by providing the City with sixty (60) days prior
written notice_
ARTICLE 3
REMOVAL AND RELOCATION
3.1 Removal Due to Public Project Except to the extent not permitted by Law, upon
receipt of a written demand from the City pursuant to this Article 3,NewPath,at its sole cost and
expense,shall remove and relocate any part of the Network, constructed, installed, used,owned
and/or maintained by NewPath under this Agreement,whenever the City reasonably determines
that the removal and/or relocation of any part of the Network is needed for any of the following
purposes: (a)due to any work proposed to be done by or on behalf of the City or any other
governmental agency, including but not limited to, any change of grade, alignment or width of
any street, sidewalk or other public facility, installation of curbs, gutters or landscaping and
installation,construction,maintenance or operation of any underground or aboveground facilities
such as sewers,water mains,drains,storm drains,pipes,gas mains,poles,power lines,telephone
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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,or other City
facilities;or(c)to protect or preserve the public health and safety. The City shall cooperate with
NewPath in relocating any portion of the Network removed pursuant to this Section 3.1 in a
manner that allows NewPath to continue providing service to its customers. Such cooperation
does not obligate the City financially in relation to relocation,nor is the City required to provide
labor or manpower directly related to the relocation. In the spirit of cooperation, the City does
agree to process any Permits related to the relocation in an efficient manner.
3.2 Removal Due to Termination. Except to the extent not permitted by Law,no later than
one hundred eighty(180)days after termination of this Agreement pursuant to the provisions of
this Agreement, NewPath shall, at its sole cost and expense,obtain all permits as required and
remove the Network and, if such removal disturbs the City's ROW,NewPath shall restore the
City's ROW to its original condition, reasonable wear and tear excepted, and further excepting
landscaping and related irrigation equipment,or other aesthetic improvements made by NewPath
to the City's ROW. Alternatively,the City may allow NewPath,in the City's sole and absolute
discretion,to abandon the Network,or any part thereof,in place and convey it to the City. The
terms, conditions, costs and compensation associated with such conveyance to the City shall be
negotiated in good faith by the Parties at the time the City determines to allow NewPath to
abandon the Network or any part thereof.
3.3 Abandonment. In the event NewPath ceases to operate and abandons the Network, or any
part thereof,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, obtain all
Permits as required, and remove the Network or the abandoned part thereof. If such removal
disturbs the City's ROW, NewPath shall also, at its sole cost and expense, restore the City's
ROW to its original condition, reasonable wear and tear excepted, and further excepting
landscaping and related irrigation equipment,or other aesthetic improvements made by NewPath
to the City's ROW. Alternatively, the City may allow NewPath,in the City's sole and absolute
discretion,to abandon the Network, or any part thereof, in place and convey it to the City. The
terms, conditions and compensation associated with such conveyance to the City shall be
negotiated in good faith by the Parties at the time the City determines to allow NewPath to
abandon the Network or any part thereof.
ARTICLE 4
MAINTENANCE AND REPAIR
4.1 Electricity Use. NewPath shall pay for the electricity it consumes in its operations at the
rate charged by the servicing utility company. In no event shall the City be responsible for any
electricity charges incurred by NewPath.
4.2 Street Lighting. NewPath shall be responsible for providing street lighting from the
Replacement Poles. Such street lighting services shall be consistent,and in the same manner and
intensity, with other streetlights located in the City's ROW, including the timing for street
lighting set by the City,which is currently from dusk to dawn. NewPath shall install automatic
light detection sensors on each Replacement Pole and set the detectors to conform to such timing
for street lighting. Within thirty(30)days of a written request by the City,NewPath shall adjust
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the automatic light detection sensors on dic Replacement Poles to comply with the hours to those
specified by the City_ All costs related to such street lighting shall be at NewPath's sole cost and
expense.
4.3 Maintenance and Repair. NewPath shall, at NewPath's sole cost and expense, perform
all maintenance and repairs reasonably needed to maintain the Network in good condition and
appearance, and in compliance with all applicable Laws. In the event any part of the Network
requires replacement because such part cannot be repaired, NewPath shall, at NewPath's sole
cost and expense,replace the irreparable part of the Network,after obtaining any and all required
Permits.
4.4 Repair of ROW. NewPath shall be responsible for any damage, ordinary wear and tear
excepted, to street pavement, existing facilities and utilities, curbs, gutters, sidewalks,
landscaping, and all other public or private facilities to the extent caused by NewPath's
construction,installation,maintenance,access,use,repair,replacement,relocation,or removal of
the Network in the City's ROW ("NewPath's Activities"). NewPath shall promptly repair such
damage and return the City's ROW and any affected adjacent property to a safe and satisfactory
condition to the City in accordance with the City's applicable street restoration standards or to
the property owner if not the City. NewPath's obligations under this Section 4.4 shall survive for
one (1) year past the completion of such reparation and restoration work and return of the
affected part of the City's ROW by NewPath to the City.
4.5 Bond. NewPath shall provide a bond in a form approved by the City Attorney's office
and issued by a surety company currently admitted to transact surety insurance in California by the
California Department of Insurance,with a Best's Insurance Guide rating of no less than A-) in an
amount to adequately cover the cost equivalent of the Replacement Poles or New Structures per
site, as applicable, to represent the estimated cost of NewPath's obligations under Sections 1.6
through 1.62 and Articles 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 1.6 through 1.6.2 and Articles 3 and 4 of this Agreement.
4.6. Noise. NewPath will use reasonable efforts to respond to any and all noise
complaints by residents in Cathedral City.
ARTICLE 5
TAXES
5.1 Taxes. NewPath agrees that it will be solely responsible for the payment of any and all
lawful taxes, fees and assessments levied on its use and maintenance of the Network. Pursuant
to Section 107.6 of the California Revenue and Taxation Code, the City hereby advises, and
NewPath recognizes and understands, that NewPath's use of the City's ROW may create a
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.
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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
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 gross negligence or willful misconduct of the City, its councilmembers,
officers, employees, agents, or contractors. In no event shall NewPath's indemnity obligations
under this agreement exceed the sum of$2,000,000 for claims arising from a single occurrence,
The City shall promptly notify NewPath of any claim, action or proceeding covered by this
Section 6.1. NewPath will in no event be liable for indirect,punitive,or consequential 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 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. If found liable by a court of competent jurisdiction, the
City will be liable only for the cost of repair to damaged portions of the DAS Facilities arising
from the willful misconduct of City, its employees, agents, or contractors, and City will in no
event be liable for indirect or consequential damages.
ARTICLE 7
INSURANCE
7.I Minimum Insurance Requirements. NewPath shall obtain and maintain at its sole cost
and expense for the duration of this Agreement insurance pursuant to the terms and conditions
described in this Article.
(a) Minimum Insurance. NewPath shall at all times during the term of this
Agreement carry,maintain,and keep in full force and effect,insurance as follows:
(i) General Liability: A policy or policies of Comprehensive 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 NewPath. If Commercial General Liability Insurance or other form with a
general aggregate limit is used, either the general aggregate limit shall apply separately to this
project/location or the general aggregate limit shall be twice the required occurrence limit.
(ii) Automobile Liability: A policy or policies of Comprehensive
Vehicle Liability Insurance covering personal injury and property damage,with minimum limits
of S1,000,000 combined single limit per accident for bodily injury and property damage covering
any vehicle utilized by NewPath in performing the work covered by this Agreement.
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(iii) Workers' Compensation and Employer's Liability: Workers'
compensation limits as required by the Labor Code, and Employer's Liability limits of
$1,000,000 per accident.
(b) Deductibles and Self-insured Retentions. Any deductibles or self-insured
retentions shall not exceed$25,000; provided,however, if NewPath's insurance policy expressly
provides (i) that the insurer is required to pay covered claims with no deduction for all or any
part of the NewPath's deductible,and(ii) insurer's obligation to pay covered claims is triggered
irrespective of whether or not the insured pays the deductible, then NewPath's deductible shall
not exceed $100,000 for Comprehensive General Liability Insurance, SI 00,000 for
Comprehensive Vehicle Liability Insurance and $250,000 for Workers' Compensation and
Employer's Liability coverage.
(c) Other Insurance Provisions. The policies shall contain, or be endorsed to
contain,the following provisions:
(i) General Liability and Automobile Liability Coverage.
(I) The City, and its elected and appointed council members,
board members, commissioners, officers and officials (the "Insureds") shall be named as
additional insureds on all required insurance policies, except for Workers' Compensation and
Employer's Liability policies.
(2) NewPath's insurance coverage shall be primary insurance
as respects the Insureds with respect to the matters covered by this Agreement. Any insurance or
self-insurance maintained by the Insureds shall be in excess of NewPath's insurance and shall
not contribute with it.
(3) Any failure of NewPath to comply with reporting
provisions of the policies shall not affect coverage provided to the Insureds.
(4) NewPath's insurance shall apply separately to each of the
Insureds against whom a claim is made or suit is brought,except with respect to the limits of the
insurer's liability. 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 NewPath in the City's ROW.
(iii) AU Coverages. If for any reason insurance coverage is canceled
or,reduced in coverage or in limits,NewPath shall,within two (2)business days of notice from
the insurer, notify the City by phone or fax of the changes to or cancellation of the policy and
shall confirm such notice via certified mail,return receipt requested.
(d) Acceptability of Insurers. insurance shall be placed with insurers with an A.M.
Best rating of no less than A-:VII.
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(e) Verification of Coverage. NewPath 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 NewPath hires any subcontractors, independent
contractors or agents("Secondary Parties") to locate, place, attach, install,operate,use,control,
replace, repair or maintain the Network,NewPath shall require the Secondary Parties to obtain
and maintain the insurance required by Section 7.1 of this Agreement and comply with all of the
insurance provisions of such Section. It shall be NewPath's responsibility to ensure compliance
with this Section 7.2.
ARTICLE it
MISCELLANEOUS PROVISIONS
8.I No Waiver. The Parties do not intend, and nothing in this Agreement shall be
interpreted as,a waiver of any of NewPath'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 facility and that City retains
the right to permit other providers of communications services to install equipment or devices in
the City's ROW and on municipal facilities. NewPath acknowledges that the City may make
information available to other providers of communications services concerning the presence or
planned deployment of the Network in the City's ROW.
8.3 Business License. NewPath understands and agrees that NewPath and its subcontractors,
other non-affiliated companies or third parties it retains in connection with performance of work
under this Agreement must hold valid business licenses issued by the City at all times during the
term of this Agreement. NewPath also understands that said licenses require renewal on an
annual basis. City makes no warranties or promises to provide notice(whether written or oral)to
NewPath, its subcontractors, other non-affiliated companies or third parties it retains in
connection with performance of work under this Agreement,upon pending expiration of annual
license.
8.4 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 Cathedral City
68-700 Avenida Lalo Guerrero
Cathedral City,CA 92234
Attention:City Manager
With a copy to:
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Green,de Bortnowsky&Quintanilla, LLP
23801 Calabasas Road,Suite 1015
Calabasas,CA 91302
Attn;Charles R.Green,City Attorney
NewPath: NewPath Networks,LLC
do Crown Castle USA Inc.,
2000 Corporate Drive,Canonsburg,PA 15317-8564
Attn:E. Blake Hawk,General Counsel, Legal Department
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.
8.5 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.
Transfers. This Agreement shall not be transferred or assigned to any other Party
without the prior written consent of the City, which consent shall not be unreasonably withheld,
conditioned, or delayed. lf, however, there is a valid assignment, such 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, any applicable Permits, terms and conditions of
approval and all Laws. 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,(b)grant an
indefeasible right of user interest in the Network or any portion thereof to another person,or(c)
offer or provide capacity or bandwidth from the Network to another person; provided that
whether NewPath does any of these three things, 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.
Notwithstanding the foregoing the City and NewPath agree that the transfer or assignment of this
Agreement, and the rights and obligations of NewPath thereunder, to a parent, subsidiary, or
other affiliate of NewPath, or to any successor-in-interest of NewPath shall not require advance
approval by the City. However,NewPath shall be required to notify City of any such transfer or
assignment hereof..
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.
83 Entire Agreement Modification; Waiver. This Agreement constitutes the
entire agreement between the Parties relating to the subject matter hereof. All prior and
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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 Severahility. 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 a court of competent jurisdiction located in Riverside
County,California.
8.10 Survival of Terms. All of the terms and conditions in this Agreement related to
payment, removal due to termination, indemnification, limits of City's liability,attorneys' fees
and waiver shall survive termination of this Agreement.
8.11 Captions and Paragraph Headings. Captions and paragraph headings used
herein are for convenience only.They are not a part of this Agreement and shall not be used in
construing this Agreement.
8.12 Exhibits and Applicable Discretionary and Non-Discretionary Permits. All
Exhibits referenced in this Agreement are hereby incorporated as though set forth in full herein.
Any and all City-issued permits (both discretionary and non-discretionary) including, but not
limited to Conditional Use Permit Numbers 12-003 through and including 12-007 are hereby
incorporated and made part of this Agreement
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,
3201 .t;ia320103 -11-
Iegal 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.
8.17 Default
(a) Failure or delay by any Party to this Agreement to perform any material term or
provision of this Agreement shall constitute a default under this Agreement; provided
however, that if the Party who is otherwise claimed to be in default by the other Party
commences to cure, correct or remedy the alleged default within thirty(30)calendar days
after receipt of written notice specifying such default and shall diligently complete such
cure,correction or remedy,such Party shall not be deemed to be in default hereunder.
(b) The Party which may claim that a default has occurred shall give written notice of
default to the Party in default,specifying the alleged default. Delay in giving such notice
shall not constitute a waiver of any default nor shall it change the time of default;
provided, however, the injured Party shall have no right to exercise any remedy for a
default hereunder without delivering the written default notice,as specified herein.
(c) Any failure or delay by a Party in asserting any of its rights or remedies as to any
default shall not operate as a waiver of any default or of any rights or remedies associated
with a default.
(d) If a default of any Party to this Agreement remains uncured for more than thirty
(30) calendar days following written notice, as provided above, a "breach" shall be
deemed to have occurred. In the event of a breach, the injured Party shall be entitled to
seek any appropriate remedy or damages by initiating legal proceedings.
(SIGNATURES BEGIN ON FOLLOWING PAGE!
MOM ia310103 -12-
IN WITNESS WHEREOF,the parties have signed this Agreement as of the date stated in
the introductory clause_
City of Cathedral City,a California municipal NewPath Networks,LLC,a New Jersey
corporation limited liability company
f �
By: `
City Manager By:
Name: Robert L.Delman
VP DAS Network Real Estatt
Title:
DEC 18 2012
ATT . In
City Clerk Name:
Title: C JA
C1
APPROVED AS TO FORM:
^
,City Attorney Approved as to Form
and Legal Sufficiency:
Signature/Initials
CATN100071DOC48tI1 I NEWPATH CC ROW AGMTCATN CITY DRAFT 110712 Date: I / L, /20_13,
3t'a9IM 11x310103 -13-
Bond No.: K088271_89
e
Bond Fee: $375.00 D G NA I
FAITHFUL PERFORMANCE BOND
RIGHT-OF-WAY AGREEMENT BETWEEN CITY OF CATHEDRAL CITY AND
NEWPATH NETWORKS, LLC
WHEREAS,the City Council of the City of Cathedral City, a municipal corporation and
political subdivision of the State of California ("City" or "Obligee") and NewPath Networks,
LLC, a New Jersey Limited Liability Company, ("Principal"), have entered into a Right-of-Way
Agreement dated p c e m},Zr 1,, a_o ("ROW Agreement") permitting Principal to
construct, install, maintain, repair, replace, relocate and/or remove five (5) DAS Replacement
Poles/New Structures (as those terms are defined in the ROW Agreement) in accordance with all
of the terms and provisions of such ROW Agreement, which ROW Agreement is incorporated
and made part hereof by this reference; and
WHEREAS, in order to protect and preserve the integrity of the City's right of ways
impacted by Principal's activities, Section 4.5 of the ROW Agreement requires Principal to
provide security to ensure the proper performance of all construction, installation, maintenance,
repair, replacement, relocation and/or removal work associated with such Replacement
Poles/New Structures; and
WHEREAS, Westchester Fire Insurance Company, ("Surety"), is a corporation
organized and doing business under and by virtue of the laws of the State of California and duly
licensed to conduct general surety business in the State of California.
NOW, THEREFORE, we, as Principal and the undersigned as Surety, are held firmly
bound unto Obligee in the penal sum of TWENTY FIVE THOUSAND DOLLARS ($25,000.00)
lawful money of the United States, for the payment of which sum well and truly to be made, we
bind ourselves, our heirs, successors, executors and administrators,jointly and severally, firmly
by these presents.
The condition of this obligation is such that if the above bonded Principal, his or its heirs,
executors, administrators, successors or assigns, shall in all things stand to and abide by, and
well and truly keep and perform the covenants, conditions and provisions in said ROW
Agreement and any alteration thereof made as therein provided, on his or their part, to be kept
and performed at the time and in the manner therein specified, and in all respects according to
their true intent and meaning, and shall indemnify and save harmless Obligee, its officers, agents
and employees, as therein stipulated,then this obligation shall become null and void; otherwise it
shall be and remain in full force and effect.
As part of the obligation secured hereby and in addition to the face amount specified
therefor, there shall be included costs and reasonable expenses and fees, including reasonable
attorney's fees, incurred by the Obligee in successfully enforcing such obligation, all to be taxed
as costs and included in any judgment rendered.
1
Bond No.: K08822189
Bond Fee: $375.00
The Surety hereby stipulates and agrees that no change, extension of time, alteration or
addition to the terms of the ROW Agreement or to the work to be performed thereunder or the
specifications or Conditional Use Permits incorporated into same shall in any manner affect its
obligations on this bond, and it does hereby waive notice of any such change, extension of time,
alteration or addition to the terms of the ROW Agreement, or to the work, the specifications or
the conditions of approval associated with Conditional Use Permits incorporated therein.
IN WITNESS WHEREOF, this instrument has been duly executed by Principal and
Surety named herein, on December 6 , 2012.
APPROVED AS TO CONTENT: PRINCIPAL:
City of Cathedral City NewPath Networks, LLC&I.itii a New sey Limited Liability Company
By �-
Signature By:
/ ignature ,r /�
�N13(,dE,0r, J(� MaNI �/ k hA6v VNktitG C'A'L ,
Name, Title �"'JJJJ Name and Title
APPROVED AS TO FORM: SURETY:
City of Cathedral City
By A Westchester Fire Insurance Company
Signature Sign`'rVv
04,,k 014 s Attrm lo„ :),Pw,�► 47,Adh.,,+y Name
Name, Title * Robert J. Cawle
Title
Attorney-in-Fact
Address, phone, e-mail
4 Gateway Center, Pittsburgh, PA 15222 (412-
586-1418
Principal and Surety's signatures must be notarized and Acknowledgement of
Authorized Representative/Attorney in Fact must be attached for both Principal
and Surety. Three (3) originals must be executed.
CATH\0007-Eng\DOC\1817.0-FP Bond for NewPath CC ROW Agmt 110912
2
ACKNOWLEDGMENT
Commonwealth of Pennsylvania
County of Washington
On this, the 13th day of December, 2012, before me, Sheila Osborne, a notary public,
the undersigned personally appeared Rob A. Fisher, known to me to be the person
whose name is subscribed to the within instrument, and acknowledged that he executed
the same for the purposes therein contained.
In witness whereof, I hereunto set my hand and official seal.
COMM ryv;':`c: t Or
Seal
Sheila trat•..,,;r;, Notary Public
C•�a n anslor Washington
RakteiliaL)Cc,r,ill:?-:,11 E xpir es Nov.1 3,2014
Mere r. ,:varfiz Association off Notaries
Notary Public
Ref. Bond No. K08822189
Notary Acknowledgement for Bond K08822189
State of Pennsylvania
County of Allegheny
On December 6, 2012 before me, Dawn Musiol
Notary Public
personally appeared Robert J. Cawley
Name of Signer
who proved to me on the basis of satisfactory evidence to be the person whose name is
subscribed to the within instrument and acknowledge to me that she executed the same in her
authorized capacity, and that by her signature on the instrument the person, or the entity upon
behalf of which the person acted, executed the instrument.
I certify under Penalty of Perjury under the laws of the State of Pennsylvania that the foregoing
paragraph is true an correct.
Witness my hand and official seal.
(aunt. nil. fiq .
Signatory of Notary
COMMONWEALTH OF PENNSYLVANIA
Notarial Seal
Dawn M.Musiol,Notary Public
City of Pittsburgh,Allegheny County
My Commission Expires July 24,2015
MEMBER,PENNSYLVANIA ASSOCIATION OF NOTARIES
•
Power of WESTCHESTER FIRE INSURANCE COMPANY
Attorney
Know all men by;these presents:That WESTCHESTER FIRE INSURANCE COMPANY,a corporation of the Commonwealth of Pennsylvania pursuant to the
following Resolution,adopted by the Board of Directors of the said Company on December 11,2006,to wit-
RESOLVED,that the following authonzations relate to the execution,for and on behalf of the Company,of bonds,undertakings,recognizances,contracts and other wntten commitments of the Company
entered into the ordinary course of business(each a"Written Commitment")
(f I Each of the Chairman,the President and the Vice Presidents of the Company is hereby authorized to execute any Wntien Commitment for and on behalf of the Company.under the seal of the Company or
otherwise
(2) (tech duly appointed attorney-m-fact of the Coatpany is hereby authorized to execute any W ntten Commitment for and on behalf of the Company.under the seal of the Company or otherwise.to the extent that
such action is authorized by the grant of powers provided for m such persons written appointment as such attorney-in-fact
(3) Each of the Chairman,the President and the Vice Presidents of the Company is hereby authonzed,for and on behalf of the Company.to apppint in writing any person the attorney-in-tact of the Company is ith
full power and authority to execute,for and on behalf of the Company,under the seal of the Company or otherwise,such Wntten Commitments of the Company as may be specified in such written
appointment,which specification may be by general type or class of Wntten Commitments or by specification of one or more particular Written Commitments
If (4) Each of the Chauman•the President and Vice Presidents of the Company m hereby authonzed,for and on behalf of the Company,to delegate in wnnng any other officer of the Company the authority to
execute,for and on behalf of the Company,under the Company's seal or otherwise,such Written Commitments of the Company as are specified in such written delegation,which specification may he by
general type or class of Wntten Commitments or by specification of one or more particular Written Commitments.
(5) The signature of any officer or other person executing any Written Commitment or appointment or delegation pursuant to this Resolution,and the seal of the Company,may be affixed by facsimile on such
W nuen Commitment or written appointment or delegation,
FURTHER RESOLVED,that the foregoing Resolution shall not be deemed to been exclusive statement of the powers and authonty of officers,employees and other persons to act for and on behalf of the
Company,and such Resolution shall not limit or otherwise affect the exercise of any such power or authority otherwise t alidlr granted or vested
Does hereby nominate,constitute and appoint Jeffrey A Frank,Jonathan P McCauley,Kevin E Bethel,Paul W Aaron,Robert J Cawley,Susan C Caputy,Vicki L
Hrach,all of the City of PITTSBURGH,Pennsylvania,each individually if there be more than one named,its true and lawful attomey-in-fact,to make,execute,seal
and deliver on its behalf,and as its act and deed any and all bonds,undertakings,recognizances,contracts and other writings in the nature thereof in penalties not
exceeding Ten million dollars&zero cents($)0,000,000.00)and the execution of such writings in pursuance of these presents shall be as binding upon said Company,
as fully and amply as if they had been duly executed and acknowledged by the regularly elected officers of the Company at its principal office,
IN WITNESS WHEREOF,the said Stephen M.Haney,Vice-President,has hereunto subscribed his name and affixed the Corporate seal of the said WESTCHESTER
FIRE INSURANCE COMPANY this 21 day of February 2012.
I y, WESTCHESTER FIRE INSURANCE COMPANY
to rjeti :F "`+,L,, '1
„,6p I Sri cn 11N- i President
esident
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF PHILADELPHIA ss.
On this 21 day of February,AD.2012 before me,a Notary Public of the Commonwealth of Pennsylvania to and for the County of Philadelphia came
Stephen M.Haney,Vice-President of the WESTCHESTER FIRE INSURANCE COMPANY to me personally known to be the individual and officer who executed
the preceding instrument,and he acknowledged that he executed the same,and that the seal affixed to the preceding instrument is the corporate seal of said Company;
that the said corporate seal and his signature were duly affixed by the authority and direction of the said corporation,and that Resolution,adopted by the Board of
Directors of said Company,referred to in the preceding instrument,is now in force.
•
IN TESTIMONY WHEREOF,I have hereunto set my hand and affixed my official seal at the City of Philadelphia the day and year first above written.
•
saH
C 3 cG.Py*1 o�M4Mt10,0044.w4rn
` fa01 .13`6. sy,a. °NS "' �aLrA�t<rMQI
}etr a:1 t KeAAROIL■dWgfit 00101
1 �+ii�}�11i��1y01�4�
ti4r..��`• ,r r ,�� Ef•^ YmAiPr P4AIk
I,the undersigned Assistant Secretary of the WESTCHESTER FIRE INSURANCE COMPANY,do hereby certify that the original POWER OF ATTORNEY,of
which the foregoing is a substantially true and correct copy,is in full farce and effect.
In witness whereof,I have hereunto subscribed my name as Assistant Secretary,and affixed the corporate seal of the Corporation,this 6 tI ay of Decemb e , 2012
•
iit(ZeizitwVZ
•
' x • • Witham L.Kelly,Aoi*iM
THIS POWER OF ATTORNEY MAY NOT BE USED TO EXECUTE ANY BOND WITH AN INCEPTION DATE AFTER February 21,2014
d
z
2
0
LL
THE BACK OF THIS DOCUMENT LISTS VARIOUS SECURITY FEATURES • THAT WILL PROTECT AGAINST COPY COUNTERFEIT AND ALTERATION. •
WESTCHESTER FIRE INSURANCE COMPANY•NAIC#10030
FINANCIAL STATEMENT DECEMBER 31,2011
ADMITTED ASSETS
BONDS $2,125,068,507
SHORT-TERM INVESTMENTS 21,324,395
STOCKS 0
REAL ESTATE 0
CASH ON HAND AND IN BANK 38,678,940
PREMIUM IN COURSE OF COLLECTION* 49,457,492
INTEREST ACCRUED 18,572,101
OTHER ASSETS 167,396,134
TOTAL ASSETS $2,420,497,569
LIABILITIES
RESERVE FOR UNEARNED PREMIUMS $187,860,407
RESERVE FOR LOSSES 1,095,977,795
RESERVE FOR TAXES 2,747,690
FUNDS HELD UNDER REINSURANCE TREATIES 5,745,573
OTHER LIABILITIES 23,542,125
TOTAL LIABILITIES 1,315,873,590
CAPITAL: 70,000 SHARES,$71.43 PAR VALUE 5,000,100
CAPITAL: PAID IN 289,280,640
AGGREGATE WRITE-INS FOR SPECIAL SURPLUS FUNDS 112,002,723
SURPLUS(UNASSIGNED) 698,340,516
SURPLUS TO POLICYHOLDERS 1,104,623,979
TOTAL $2,420,497,569
(*EXCLUDES PREMIUM MORE THAN 90 DAYS DUE.)
STATE OF PENNSYLVANIA
COUNTY OF PHILADELPHIA
John P.Taylor, being duly sworn,says that he is Vice President of
Westchester Fire Insurance Company and that to the best of his knowledge and belief the
foregoing is a true and correct statement of the said Company's financial condition as of the
31 st day of December,2011.
Sworn befo - e this O A i - i ' ,2.0 \'
V e President
Notary Public My cou nission expires
COMMONWWLAL ti T K OF ENNSYLVANIA
kntarlal Seal
Diane Wright, Public
City of Philadelphia,Ph93delptua CcoutY
My Commission Expires Aug.H OF NOrAR[6S 8,2015
yam,PENNSYLVAMA ASS