Resolution No. 7451RESOLUTION NO. 7451
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
VERNON APPROVING AND AUTHORIZING THE EXECUTION OF A
UTILITY POLE LEASE AGREEMENT BY AND BETWEEN NEXTLINK
CALIFORNIA, INC. AND THE CITY OF VERNON FOR
INSTALLATION OF FIBER OPTIC LINES ON CERTAIN CITY
UTILITY POLES
WHEREAS, the City of Vernon owns and operates utility poles
located in the City; and
WHEREAS, Nextlink California, Inc. ("Nextlink") desires to
install and maintain telecommunications facilities on certain utility
poles owned and operated by the City of Vernon; and
WHEREAS, Nextlink has agreed that the City is entitled to be
compensated for the use of said utility poles and/or the City's
rights -of -way; and
WHEREAS, the City has recently received applications from
several public utilities, in addition to Nextlink, for the
installation of fiber optic cables on the City's utility poles or
along the City's streets; and
WHEREAS, the City is required to treat all such public
utilities in a nondiscriminatory manner; and
WHEREAS, the City has undertaken an initial investigation
designed to properly evaluate the amounts which should be charged for
either the attachment to the City's utility poles or the use of the
City's rights -of -way; and
WHEREAS, Nextlink has requested that the City process its
application in an expedited fashion so that Nextlink may satisfy
certain contract obligations which it has with a large customer in the
City; and
I WHEREAS, the City has not yet had enough time to complete its
2 investigation regarding reasonable pole attachment and rights -of -way
3 compensation charges; and
4 WHEREAS, Nextlink has agreed to pay the City a certain
5 compensation rate at this time and that said rate may be adjusted
6 based upon the City's determination that a reasonable compensation for
7 the use of the City's poles or use of the City's rights -of -way is more
8 than that which is currently being paid by Nextlink; and
9 WHEREAS, the City of Vernon and Nextlink desire to enter into
10 a lease agreement for the installation by Nextlink of its
11 telecommunication facilities on certain utility poles in the City.
12 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
13 CITY OF VERNON AS FOLLOWS:
14 SECTION 1: The City Council of the City of Vernon hereby
15 finds and determines that the recitals contained hereinabove are true
16 and correct.
17 SECTION 2: The City Council of the City of Vernon hereby
18 approves the Utility Pole Lease Agreement with Nextlink, a copy of
19 which has been presented to the City Council concurrently with this
20 resolution, and the City Council hereby orders said Lease Agreement to
21 be received and filed by the City Clerk.
22 SECTION 3: The City Council of the City of Vernon hereby
23 authorizes the Mayor and the City Clerk to execute said Lease
24 Agreement for, and on behalf of, the City of Vernon.
25
26
27
28
- 2 -
SECTION 4: The City Clerk of the City of Vernon shall
certify to the passage of this resolution, and thereupon and
thereafter the same shall be in full force and effect.
APPROVED AND ADOPTED this 23rd day of November, 1999.
bEONIS C. AALBURG, V Mayor
ATTEST:
y
BRUCE V. MALKENHORST, City Clerk
- 3 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
STATE OF CALIFORNIA
COUNTY OF LOS ANGELES
ss
I, BRUCE V. MALKENHORST, City Clerk of the City of Vernon, do
hereby certify that the foregoing Resolution, being Resolution No.
7451, was duly adopted by the City Council of the City of Vernon at an
adjourned regular meeting of the City Council duly held on Tuesday,
November 23, 1999, and thereafter was duly signed by the Mayor of the
City of Vernon. j
BRUCE V. MALKENHORST, City Clerk
(SEAL)
- 4 -
SUPPORTING
DOCUMENTS
CITY COUNCIL
LEONIS C. MALBURG
Mayor
THOMAS A. YBARRA
Mayor Pro-Tem
Wm. 'BILL" DAVIS
Councilman
H. "LARRY" GONZALES
Councilman
W. MICHAEL McCORMICK
Councilman
BRUCE V. MALKENHORST
City Administrator / City Clerk
FAX (323) 581-7924
DAVID B. BREARLEY
City Attorney
FAX: (626) 330-5818
KEVIN WILSON
Director of Community Services & Water
FAX: (323) 588-2761
CITY HALL
4305 SANTA FE AVENUE, VERNON, CALIFORNIA 90058
TELEPHONE (323) 583-8811
December 8, 1999
Mr. Dwayne Nielson
President
Nextlink California, Inc.
1924 Deere Avenue
Santa Ana, CA 92705
Re: Utility Pole Lease Agreement
Dear Mr. Nielson:
KENNETH J. DeDARIO
Director of Municipal Utilities
FAX: (323) 583-1983
DAVE TELFORD
Fire Chief
FAX: (323) 581-1385
BRUCE W. OLSON
Police Chief
FAX: (323) 583-5236
Enclosed is a duplicate original Utility Pole Lease Agreement
that was approved by the Vernon City Council on November 23,
1999 through Resolution No. 7451.
If you should have any questions, please refer them to Ken
DeDario at Ext. 211.
Very truly yours,
G o is or 0
Chief Deputy City Clerk
GJO:rcm
cc: Director of Utilities
Director of Communities Services
our Agreement File No. 99-078
EXECUTION COPY
I
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
LE:3
19
20
21
22'
23
24
25
26
27
28
UTILITY POLE LEASE AGREEMENT
This UTILITY POLE LEASE AGREEMENT ("Lease") is entered into as of the _
day of November, 1999,
BY AND BETWEEN: CITY OF VERNON
a municipal corporation
(hereinafter referred to as "City")
4305 Santa Fe Avenue
Vernon, CA 90058-0805
NEXTLINK CALIFORNIA, INC.
a Washington corporation
(hereinafter referred to as "NEXTLINK")
1924 Deere Avenue
Santa Ana, CA 92705
RECITALS
WHEREAS, City owns and operates certain utility poles located in the CITY, which
are more particularly described in Exhibit A ("Utility Poles"); and
WHEREAS, NEXTLINK desires to install and maintain telecommunications facilities
("NEXTLINK's Facilities") on such Utility Poles; and
WHEREAS, NEXTLINK desires to lease space on the Utility Poles in order to place
and maintain NEXTLINK's Facilities on such Utility Poles, and City has agreed to lease,
under the conditions set forth below, space on the Utility Poles for the placement of
NEXTLINK's Facilities;
NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants
provided in this Lease, the parties agree as follows:
SCOPE OF AGREEMENT
1. Subject to the provisions of this Lease, City hereby leases to NEXTLINK, and
NEXTLINK hereby leases from City, a portion of the space within the communications
grade of the Utility Poles for the placement of NEXTLINK's Facilities. This Lease shall be
non-exclusive and is subject to existing leases by the City of space on the Utility Poles which
are the subject of this Lease.
2. No use of the Utility Poles by NEXTLINK or payment of any rent or other
charges required under this Lease shall create or vest in NEXTLINK any easements or other
1 ownership of property rights of any nature in the Utility Poles other than the rights granted
2 under this Lease. Furthermore, this Lease shall not constitute an assignment of any of City's
3 rights to use the public or private property upon which the Utility Poles are located.
4 3. The purpose of this Lease is to facilitate installation of fiber optic cable, which
5 shall only be used by NEXTLINK to carry telecommunications traffic for the benefit of
6 NEXTLINK and its customers. Any attachments to Utility Poles required by NEXTLINK in
7 connection with such installation shall be made pursuant to written requests submitted by
8 NEXTLINK to City in a form designated and provided by City. Prior to installation of
9 NEXTLINK's Facilities, NEXTLINK shall notify City of such intended installation and shall
10 obtain all permits and approvals required by all applicable public and private authorities for
11 such installation. In performing such installation, NEXTLINK (i) shall not attach (whether
12 by overlash or otherwise) more than two (2) cables to any single attachment made by
13 NEXTLINK to a given Utility Pole, (ii) shall improve existing communication grade down
14 guys and grounding for all Class City circuits on the Utility Poles (all at the sole cost and
15 expense of NEXTLINK) to the extent necessary to comply with current applicable public
16 utility industry standards, and (iii) shall not, with respect to Utility Poles solely owned by
17 City, and/or joint poles where City is the base owner install any facilities which are
18 incompatible with City's or joint users' use of the Utility Poles, with the nature and extent of
19 any such incompatibility to be determined by City in City's sole, good -faith discretion.
20 4. Neither City's right to maintain the Utility Poles nor its right to operate its
21 facilities in such a manner as to best enable it to fulfill its own service requirements will be
22 in any manner limited by this Lease.
23 5. Nothing contained in this Lease shall be construed (i) to compel City to construct,
24 reconstruct, retain, extend, place or maintain its Utility Poles for use by NEXTLINK unless
25 needed for City's own service requirements, or (ii) as a limitation against City with respect
26 to any previous agreement by City or any agreement which it may in the future enter into
27 with other parties; however, City agrees that City or such other parties shall not
28 unreasonably interfere with NEXTLINK's rights under this Lease.
2
1 6. The provisions of this Lease are subject to, and the parties shall at all times
2 observe and comply with, all laws, ordinances and regulations, including City's charter, and
3 all City ordinances of general applicability which affect the parties' rights and obligations
4 under this Lease.
5 TERM OF LEASE
6 7. This Lease shall be for an initial term of ten (10) years, beginning on the
7 effective date as set forth herein (the "Effective Date") and shall continue in effect until
8 expiration of such term unless it is earlier terminated as provided in this Lease or by
9 operation of law.
10 RELOCATION
11 8. City reserves the right to remove, reconstruct, alter, reconfigure or relocate any
12 Utility Pole as City may elect in its sole discretion, and City shall immediately notify
13 NEXTLINK if such actions are proposed. In the event City elects to take any such action
14 without eliminating City's above -ground utility distribution network within the immediate
15 vicinity of Utility Poles, NEXTLINK shall either (i) remove NEXTLINK's facilities and
16 relocate them (at NEXTLINK's sole cost and expense) to other above -ground facilities (it
17 being understood, however, that if any third party pays all or any part of the costs of
18 relocating the parties' respective facilities, NEXTLINK will be paid an equitable portion of
19 such payment) or (ii) elect to terminate this Lease, with the understanding that any such
20 termination shall not be effective until NEXTLINK is afforded reasonable time to relocate its
21 facilities. If, however, City elects to remove the Utility Poles entirely and eliminate any
22 above -ground utility distribution network within the immediate vicinity of the Utility Poles,
23 this Lease shall terminate after NEXTLINK has been given reasonable time not to exceed
24 180 days to relocate its facilities (as may be specified by applicable City ordinance).
25 CONSTRUCTION AND MAINTENANCE
26 9. Prior to installation of NEXTLINK's Facilities, NEXTLINK shall provide to City
27 a copy of its construction drawings (including any excess cable storage requirements) and
28 installation schedule for City's approval. Approval of the drawings, cable storage
3
I requirements and schedule shall be coordinated with City's Utilities Department and/or the
2 City's Community Services Department. In the event City determines that rearrangement of
3 the existing facilities on the Utility Poles is required before NEXTLINK's Facilities can be
4 accommodated, City will advise NEXTLINK in writing of the estimated make-ready charges
5 (including investigation, design and engineering fees) for such rearrangement work; if
6 NEXTLINK requires City to perform engineering services on a rush basis, NEXTLINK shall
7 compensate City for said services at a rate to be agreed upon by the parties. NEXTLINK
8 shall pay City within thirty (30) days from its receipt of City's invoice for such charges.
9 10. NEXTLINK shall, at its own expense, during the term of this Lease, install and
10 maintain NEXTLINK's Facilities in a safe condition reasonably acceptable to City so as not
11 to conflict or interfere with the facilities placed by City or others. NEXTLINK's Facilities
12 shall be placed and maintained in accordance with the requirements and specification set
13 forth in Exhibit B. In connection with the foregoing, it is anticipated that each party may,
14 from time to time, conduct field audits in order to update databases of pole records. The
15 parties agree to cooperate in sharing results of such audits.
16 11. In the event of an emergency:
17 (a) CITY EMERGENCY -
18 (1) City's work shall take precedence over any operations on the Utility
19 Poles;
20 (2) NEXTLINK shall immediately notify City's Utilities Department of any
21 emergency situation related to the Utility Poles or NEXTLINK's Facilities.
22 (b) NEXTLINK EMERGENCY -
23 City shall immediately notify NEXTLINK at its Technical Affiliate, Plano,
24 Texas (Phone No. (888) 639-8522) of any emergency situation related to the Utility Poles or
25 NEXTLINK's Facilities.
26 12. If any part of NEXTLINK's Facilities are not placed and maintained in
27 accordance with the terms and conditions of this Lease and NEXTLINK has not corrected the
28 violation within thirty (30) days after receipt of a written notice from City, then City may, at
rd
I its option, correct the condition and notify NEXTLINK in writing prior to performing such
2 work. However, in the event such conditions pose an immediate threat to the physical
3 integrity of City's facilities, to surrounding property, or the health or safety of the public,
4 City may perform such work and take any action that is reasonably necessary without first
5 giving written notice to NEXTLINK. As soon as practicable thereafter, City will advise in
6 writing of the work performed or the action taken. NEXTLINK shall be responsible for all
7 expenses incurred by City associated with any work or action performed by City pursuant to
8 this Section and shall reimburse City within thirty (30) days from its receipt of City's
9 invoice.
10 13. City reserves the right to make periodic inspections of any part of NEXTLINK's
11 Facilities; provided, however, that NEXTLINK shall have the right to have one or more of
12 its employees or representatives present during any such inspection. City shall give
13 NEXTLINK advance written notice of such inspections, except in those instances where, in
14 the judgment of City, safety considerations justify the need for such an inspection without the
15 delay of providing written notice (in which event telephonic notice shall be provided instead).
16 Making periodic inspections or the failure to do so shall not impose upon City any liability
17 nor relieve NEXTLINK of any responsibility, obligations or liability assumed under this
18 Lease.
19 RENT
20 14. (a) The annual rent required to be paid by NEXTLINK shall be equal to the
21 sum of (i) Twenty Five Dollars ($25.00) multiplied by the number of NEXTLINK
22 attachments made to the Utility Poles, plus (ii) Twelve Dollars and Fifty Cents ($12.50)
23 multiplied by the number of attachments to City pole anchors installed by NEXTLINK in
24 connection with this Lease. In addition, the amounts in clauses (i) and (ii) of the preceding
25 sentence shall be increased annually based upon the increase which appears in the Consumer
26 Price Index (CPI), All Items, Base 1982-84 Index, as published by the United States
27 Department of Labor, Bureau of Labor Statistics for all Urban Consumers in the Los
28 Angeles -Anaheim -Riverside Metropolitan Statistical Area since the preceding CPI. Annual
5
1 rent shall be due and payable annually in advance upon each anniversary of the Effective
2 Date occurring during the Lease until the Lease has terminated or expired.
3 (b) Most Favored Nation Clause: Notwithstanding the language of subsection
4 (a), should NEXTLINK, after the Effective Date of this Lease, enter into a similar lease or
5 agreement with another municipality, public utility or publicly owned utility, which lease or
6 agreement contains financial benefits for such municipality, public utility or publicly owned
7 utility, which are superior to those in this Lease, the Lease shall be modified to incorporate
8 the same or substantially similar superior benefits. Conversely, if City provides another
9 public utility with a lease rate which is lower than the rate being paid by NEXTLINK
10 pursuant to this Lease, City shall make the same or a comparable rate, available to
11 NEXTLINK.
12 Further, notwithstanding the language of subsection (a), should City determine
13 that reasonable compensation for the installation of NEXTLINK's Facilities on City Utility
14 Poles is higher than the rental charge established in this Lease, on 180 days written notice by
15 City, the Lease shall be modified to incorporate such reasonable compensation terms. The
16 City's determination of such reasonable compensation shall be based upon any of the
17 following:
18 1. The highest compensation rate being paid by any other public utility to any
19 other municipality, public utility or publicly owned utility, under a similar lease or
20 agreement;
21 2. The highest compensation rate offered to City by any other public utility for
22 installation of similar facilities on City utility poles; or
23 3. The establishment of such compensation rate by applicable law or regulation.
24 (c) In the event City shall terminate this Lease before the expiration for any year
25 for which the rental has been paid, City shall refund to NEXTLINK the charge for rental for
26 the unexpired portion of such year.
27
28
0
1 INSURANCE
2 15. Without limiting City's right to indemnification, NEXTLINK shall, at its own
3 expense, maintain throughout the term of this Lease, insurance coverage as follows (which
4 requirements may be revised by City's Risk Manager, if requested by NEXTLINK and if she
5 determines such revision is in City's best interest):
6 (a) NEXTLINK agrees to provide insurance in the amounts and forms specified
7 in Exhibit "C", which is attached hereto and made a part hereof by reference. Comparable
8 coverage shall be provided for each subcontractor used in the performance of this Lease.
9 NEXTLINK shall submit to City, documentation indicating compliance with these minimum
10 requirements no less than one (1) day prior to the beginning of this Lease. This Lease shall
11 not become effective until the above insurance has been obtained and proof of insurance has
12 been filed with and approved by City.
13 (b) In addition to any other remedies City may have, if NEXTLINK fails to
14 provide or maintain any insurance policies or policy endorsements to the extent and within
15 the time herein required, City may, at its sole option, terminate this Lease; provided,
16 however, termination of this Lease is an alternative to other remedies City may have, and is
17 not the exclusive remedy for any such failure. Nothing in this Lease shall be construed as
18 limiting in any way the extent to which NEXTLINK may be held responsible for payments of
19 damages to persons or property resulting from the acts, omissions, operations or activities of
20 NEXTLINK or any agent, representative or employee of any contractor or subcontractor of
21 NEXTLINK.
22 RELEASE AND INDEMNITIES
23 16. NEXTLINK hereby agrees to indemnify, defend, and hold harmless City
24 (including its officers and employees) from and against any and all claims, demands,
25 expenses, damages, judgments, defense costs, or liability of any kind or nature (including
26 actions brought against City by the employees or dependents, heirs, assigns or survivors of
27 such employees of NEXTLINK or NEXTLINK's agents, representatives, customers,
28 contractors, or subcontractors) presented against City arising out of or in connection with
7
I
2
3
4
5
6,
7'
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
NEXTLINK's (including its employees, agents, representatives, contractors, and
subcontractors) performance or work under this Lease, or otherwise related to NEXTLINK's
placement of equipment on City's property, excluding only such liability actions as have been
determined, by a court of competent jurisdiction, to have arisen out of the sole negligence of
City.
17. The indemnification obligations in Section 16 shall survive the termination of this
I Lease.
18. NEXTLINK hereby releases City from any liability for damage, including
without limitation, all consequential damages of any kind or nature, to any of NEXTLINK's
property associated with this Lease.
TERMINATION
19. NEXTLINK shall have the right to terminate this Lease at any time during the
Lease term, provided that (i) any such termination shall become effective on a day which is
immediately prior to an anniversary of the Effective Date, and (ii) NEXTLINK provides
written notice of such termination to City at least ninety (90) days prior to the intended
effective date of such termination.
20. Notwithstanding the provisions of Section 19 hereof, if at any time NEXTLINK
fails or refuses to perform any of the covenants or conditions contained in this Lease, and
such failure or refusal shall continue for thirty (30) days after receipt of written notice by
NEXTLINK from City, then City, at its election and upon ten (10) days additional advance
written notice to NEXTLINK, may terminate this Lease. Notwithstanding the foregoing
sentence, if NEXTLINK's effort to cure begins within thirty (30) days, and NEXTLINK
diligently pursues such cure to completion and if, despite such diligent efforts, NEXTLINK
is unable to cure within thirty (30) days, then NEXTLINK's right to cure shall be extended
beyond thirty (30) days for so long as NEXTLINK diligently proceeds to do so.
21. Upon expiration or termination of this Lease for any reason, NEXTLINK shall
remove NEXTLINK's Facilities within thirty (30) days. In the event NEXTLINK fails to
remove NEXTLINK's Facilities within such thirty (30) day period, they shall be deemed
1 abandoned and City, at its sole discretion and without liability, may remove them and
2 NEXTLINK shall reimburse City for all costs associated with such removal.
3 22. Termination or expiration of this Lease shall not affect liabilities and obligations
4 incurred by either party prior to the effective date of such termination or expiration.
5 ASSIGNMENT
6 23. With respect to the fiber optic cables to be installed as part of NEXTLINK's
7 Facilities, NEXTLINK shall not assign or otherwise convey any of its rights, obligations or
8 interests under this Lease in and to such cables, without the prior written consent of City,
9 which consent shall not be unreasonably withheld or delayed; provided, however, that
10 without such consent, NEXTLINK may assign all of its rights, obligations and interests to
11 any parent or majority -owned subsidiary of NEXTLINK, or any successor entity of
12 NEXTLINK (whether by merger, consolidation or sale of all or substantially all of the assets
13 of NEXTLINK or otherwise) provided such assignee assumes all of the obligations of
14 NEXTLINK under this Lease. The foregoing restriction on assignment shall not be
15 construed to prevent NEXTLINK from making available to its customers transmission
16 capacity within such fiber optic cables.
17 NOTICES
18 24. Any notice required by this Lease shall be made by (i) facsimile, confirmed by
19 certified mail, return receipt requested, (ii) in writing by certified mail, return receipt
20 requested, or (iii) delivered in person or by overnight delivery, to the parties at the following
21 addresses:
22 CITY CITY OF VERNON
City Administrator
23 4305 Santa Fe Avenue
Vernon, CA 90058-0805
24 Telephone: (323) 583-8811
Telecopy: (323) 585-4661
25
With a copy to: CITY OF VERNON
26 Director of Utilities Department
4305 Santa Fe Avenue
27 Vernon, CA 90058-0805
Telephone: (323) 583-8811
28 Telecopy: (323) 585-4661
0
1 NEXTLINK NEXTLINK CALIFORNIA, INC.
1924 Deere Avenue, Suite 110
2 Santa Ana, CA 92705
Attention: Lee Arnold
3 Telephone: (949) 417-7762
Telecopy: (949) 417-7730
4
With a copy to: NEXTLINK CALIFORNIA, INC.
5 1924 Deere Avenue
Santa Ana, CA 92705
6 Attention: Karen Potkul
Telephone: (949) 417-7766
7 Telecopy: (949) 417-7377
8 If either party changes its address during the term of this Lease, it shall so advise the
9 other party in writing, and all subsequent notices shall be sent to the new address.
10 DISPUTES
11 25. (a) If any dispute or claim arises out of the interpretation, performance, or
12 breach of this Lease, the parties agree that upon the written demand of either party, they will
13 meet within two (2) weeks of such demand to attempt in good faith to resolve the dispute.
14 That meeting will be attended by representatives of both parties having the authority to
15 resolve the dispute.
16 (b) With the exception of actions for injunctive relief, or which must be filed to
17 preserve a party's rights, the parties agree to conduct the meeting described above before
18 either party may commence an action in any court of law, concerning the disputes or claims
19 arising out of this Lease.
20 GENERAL PROVISIONS
21 26. LIENS AND ENCUMBRANCES: NEXTLINK shall not create, or allow to be
22 created, any lien or encumbrance, including, without limitation, tax liens, mechanic's liens,
23 or other liens or encumbrances with respect to work performed or equipment furnished, in
24 connection with the installation, repair, maintenance or operation of NEXTLINK's Facilities.
25 27. GOVERNING LAW: This Lease shall be governed by and construed in
26 accordance with the laws of the State of California. Any action concerning or arising out of
27 this Lease shall be filed in a court of the State of California having jurisdiction of the subject
28 matter, and venue shall be in the County of Los Angeles, State of California.
10
1 28. NEXTLINK agrees to maintain an agent for service of process in California
2 during the entire term of this Lease. NEXTLINK hereby designates Network Construction
3 Manager at its Los Angeles Office as its local agent for service of process in any legal action
4 or proceeding that may arise out of or in connection with this Lease. NEXTLINK may
5 modify this designation by written notice to City in the manner required herein.
6 29. SEVERABILITY: In the event that any one or more of the clauses, covenants or
7 provisions contained in this Lease should be held to be unenforceable under any Federal,
8 State or City law, statute, code, administrative or regulatory rule, such invalidity or
9 unenforceability shall not affect the remainder of this Lease, which shall remain in full force
10 and effect.
11 30. BINDING EFFECT: This Lease shall be binding upon, and shall inure to the
12 benefit of the parties and their respective successors and assigns.
13 31. WAIVER: The waiver by City of any breach of any term, covenant or condition
14 in this Lease shall not be deemed to be a waiver of such term, covenant or condition of any
15 subsequent breach of the same or any other term, covenant or condition in this Lease.
16 32. CONFLICTS: In the event of a conflict between the terms of this Lease and the
17 terms of the Southern California Joint Pole Agreement which pertains to joint poles, of
18 which City is the base owner, the terms of this Lease shall control.
19 33. EFFECTIVE DATE: The Effective Date of this Lease shall be the latest date of
20 execution hereinafter set forth opposite the names of the signators hereto. In the event
21 NEXTLINK fails to set forth a date of execution opposite the name(s) of NEXTLINK's
22 signator(s), NEXTLINK hereby authorizes City, by and through its representative, to insert
23 the date of execution by NEXTLINK's signator. (s) as the date said Lease, as executed by
24 NEXTLINK, is received by City.
25 34. ENTIRE AGREEMENT: This Lease constitutes the full understanding the
26 parties hereto with respect to the subject matter hereof, and supersedes any and all prior
27 understandings, communications or agreements, whether written or oral, with respect to the
28
11
ou rAA tzU 330 5818
DAVID B BREARLEY 2 002/002
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
subject matter hereof. This Lease may be executed in counterparts, each of which shall
constitute an original, but all of which shall constitute one document.
35, MODIFICATIONS; All amendments and/or modifications to this Lease shall be
effective only in writing signed by the parties hereto.
IN WITNESS WHEREOF, the parties hereto have caused this Lease to be executed
on the dates hereinafter respectively set forth.
DATE:
ONIS .MALE RG, May
II ATTEST:
DATE: 7 19
BRUCE V, MALI{ENRST, City Clerk
APPROVED AS TO FORM:
Ed uar o Olivo
City Attorney for the
CITY OF VERNON
NEXTLINK CALIFORNIA, INC., a
�V`sa hington corporation
DATE:
DATE:�L4— ' 4G ORG tancial
VARELDAPPROVED AS TO FORM: Chief Fi Officer
9
Karen Po
Attorney for
NExTLINK CALIFORNIA, INC.
agroa���
EXHIBIT A
T
m� Aso
& uwa'ror+plsmlcr - � w 3 Cosas�__
ALA a,n.,,
... _ —
�_ _ __ T—_
s3i u j j• u�. � s, 2; ,q, i isi 2
ca
o
i- a x4a1 �s
00 1
3 zs: x= s
° of `
5� 1ST
R 5"
>"o ;s u �
a -
----------- 3 s?y NAWInORNE ave xii So
-
-
�
a<
> i N e p �� yM
oxi � o 0 �19
0 0 �g � �>;
Svol
1 0
Esq.i$ yw rz
°1;
6-
00 O ; x sr cnwces x
---- = o o, o§ s
y_ uapl a.
u� j 0,'� i <
iT
pl
a .off—p p;,
Ig I'y of °" jo89
�< RI
° 13"
e�
— — -off
--------- - - �S y G t 2 y J" 1. `o .
r
s�o�
I
N
I
F-
0
D
Z
m -
-r
m
Cn
m
z
0
z
F-
0
(n
z
0
m
F—
m
U)
C)
0
N
41
m
112-4218-1
m 112-4215-1
N
N x
sg
x&
xoOIB
=
%
m
,<
----
----
--------- -----
t
-
QO�
S
o49
R.[ AC
_JST`
x8
ffim
O
�� Ss;J
o�UY"
m
S R
x
sxm
sg
a
i
RY
iW
Ar
B� �'
zro
Sm`
_
HAnmranc
sr S`-8�
-m9
i x xu p Zx<
m �e "i
h xv sg � �o
2 <
LA X
2. � j�xeEe
\
-
_
- g
�� xm
g�N
gz
e�N �a
Sg
xa
vg
xo xu sy
m
Iz
g'
_p
xu
c I
�8�u1
�g
�b
Oi
�g2
Fr-
Z
z_
ps
o'
x'
G�
moSa
c� m
7
xm I
wm
u�
II xo
T
`P
r
FF
- SENL[E
,N-T
c
Vxp VemxJµ
u� xk
C
m
_
i
-
-
-
o
oc
o
112-4221-1
Y
114-4221-1
m
44
112-4218-1
-
O
off.
,g•-
��-
:..o-i' g&
CHIBAKfR TRACT'
e�
m
a
i
L
.11
ou.��g MRvl
N3 Ug
o
m
m
Sg qa
r
.gg
m
I I
< p
-
--
---. ---_—
\J
i m
-
o\
e
'
4
eV
-
OV
R
i
�u
v.0
o
o
S
S jj "
ok
5
'
—
_ -- ---
�
ZTf
7ogS
Mug
N
I
s P
D s
g
era
N
`f
tsygg
k
g�
�
-----
P �o
go
o__
i
SaIOS
JJ
1
so
tt
ej 2-
., PS
so
m
DIFF
PsFF
ughg®
<
O
i g
88
O
P
sfi
SPM�
$v
o.-
N
112-4224-1
m - 112-4221-1.
Ux S r ril
-=--
$
u ?x
u — -- o v
ax> xm
s a x.
0 8il
- -- -- °
xx x qi axx= sg `P xxu a> a ax m a g x
------------
---
o-
j 5 ccl
l
g
a
$m "Al x"
of to v k� �`� II' x li
WA— UNE
__ IRAN.S1//55/ON LM/E =/M' G _ —__ 8 F/I✓ 8
LOS ANGL ES CIrY on 8 m`d E- � -,^ 4 PnpIMENr OF WA
' 8 GEPARTAIENT -- OF - WAT£R ANO POH£R & � - ANO PONER
jo �u SJxB I ap�In
' Lmg to I ,
sm A
-
a
sue.
s s asM-,s GNWNE.. o-, - sss,-ta
q a $p a
50 ` %W
g ` � � m� M o`SALrLAKE � x` cauPrav--wsTR�cr _-- Go _ --
car
^may
o o C
FF
! s 1g� _ rF
Sx Ej I I m &$ U
it,
a. of
5pq R _" I
j;
112-4227-1
4.224.000
114-4221-1 -
---
°�
4oxg
0
-a°
k
:o
'40.1D
wxm
a
m o
a
a
r
:Rm
-------------
OF
o
-
--
/0e ] 1/�
-
a L
u
� �•igy
i N�
SSA
a7r a�
�av
v I xa
awnrav
asmicr veax-
17
E�
o
R
v
iRAN5NIS51CN
LINE
$
8 L a
-- --
s-
H
m
o
f o s
Y
E r1O
O
Ip
i
Gm
x O o--
N
"�
co
sv a�xo xy
s
m
sP
oN �
.
m
�
�
es`n
/
ar
�zn
• o-i seu+l
__
o
LA
_�__ YFRNCW •
G".�.
__ gyp'--__—_
S� ''zo mSS �vavav
o O.
F i
x.. el
wl
%
%
v �
114-411 /-1.
a �
4.224.00D
m 116-4221-1
c
u
L
c
F
r
rr
U
Fr
z
L
c
L
F-
c
Cr.
Z
c
FT
F-
r7
Cr.
c�
c
i
i
116-4227-1
EXHIBIT B
I— —� 25.0' min. 15.0' min.
7.0' min.
1. No signs, poles, anchors or fire hydrants shall
be constructed within the curb return whenever
possible.
2. The center of all fire hydrants shall be placed
2.0' from curb face.
3. The face of all power poles shall be placed
1.5' from the curb face.
4. All signs shall be placed so as to have a 1.0'
clearance from the curb face to the edge of
Q SIGN the sign.
T 5. Traffic signals and stop signs shall have priority
9 P 9 P y
7.0' min over all other structures.
6. A 5.0' minimum clearance shall be maintained
O'er POWER POLE between all structures including fire hydrants,
signs, driveways, trees, anchors, water vaults,
1'S� street lights, traffic signals or any other
7.0' min structures. Power poles shall have a 7.0'
.01 clearance from all other vertically protruding
-- FIRE' HYDRANT structures when possible.
5.0' min 7. All underground searches and. alerts shall be
-L- accomplished by the entity placing the object.
8. Encroachment permit accompanied by a drawing
DRIVEWAY is required prior to starting any work in the
public right of way.
5.0' min. STANDARD OFFSET
H VAULT REQUIREMENTS.
25.0' min CITY OF VERNON, CALIFORNIA
COMMUNITY SERVICES DEPARTMENT
TREE NOVEMBER 1994
STANDARD PLAN
PV 21331
z�
rT
O ;
-. ..70O
m
_
r
z
D
Z
m�
m�
00
m o
o
m
D
o
Fri
<
z
--Aw
-
W (n
SANTA FE AVE.
CURB
CONCRETE
SIDEWALK
13,
5'
m
0
c�
m
0
0
m
n turn
I�
- � —_ —�.
-f
0
p
O
O
N
-
C
m
W 0
QD
D
1
_
Z
O
Oz
�
��
m
0
-�
m
rO
O
m
Z7
z S z
G) 0
_ O
II^ Z
W W .
O"
'r, i
m
,
Co—m
mix
-
_�
N m Z
-�cnomU -0
m
O O
�>�-
M * 2
D� zfzTl n n
OmOD
U)O
Co
71
50
Z�
m0z�zz
%
z �n
n
m
0.
ZTIO- OD
m
D
�O
D
0
z
CA
O � •• m
C 'm
m
-
��
G�
0
z
W <-
D�
{
m
CO ..
< O
r
Cl)
z
(n
z
m M
O
z
W z
D
z
�
�
m
m
z
0
z
,
��n
Y, f
;'._"
Z ,
f
5-
.� }n
..
L,.
4 i.
�'�
��, ,
� �:
�'
'����
z - -
.. 3
�"
,� 4�
�3
,' ��
�.
_ � ____ _.
z
c�
om
r
m
00
J J
_
m
S.SOTO ST.
ZQ
//.
F
..
rT-I.
�
^�
l )
/V
(A n
0
m
m
O
W
rTi �n
0-)
z
m
Z
D
D TJ
0
D
m
�
j
z
D
�1
z
�O
0
�cnomm-o
=�uz;;u ;p
z
m>c-)0o
zmm
0
o
o-1
zm
z� 0m 00
_0
m
�.. J
�x
r
O-) � M X
zl r
0
m
� < C
z
y�
G
rn
z
O
z
o
- 6'
N
•
c
5,►{
o
CO
BLOCK WALL
v
u
0
o r,
�
o m
z cn
m
Fri
-uo
=
rn
00
U
� -D
a,
z
zCY
O
�
G
S
O
z
G�
z
C
O
O
Z
n
�0
rrl
m
-I (A 0 m -
S�z��
Gym>000
_0 m ri
zm
n
�p
m
O Z f r l Z z
Z7000>
0:. . K
Cil
O� Qo0 oZ
0
rnC,0,x
<
� *1 z�
c � r D
+' Z
FTI
O
Z
Fri m
r �7
rn I 23°
19„
P
'
�
"
" o
o
W
r
m
r
mN mm
r
m
rrn o'
nm oz
OrG-)=
-
mCD
13.,
O
o�z
12„.
ca z
mc�
CD
muz
2'_1„
-4�,m
J—
m-i
No
9'-11,
C'n
r
12'
J
_
.
—j cn o M -o
m D 0 0 0
z C- �z�
�nn D
c
m
O z Mz z
z -n O O �
co m
U"i
D
v N
�I Orn
r
o�
Nn
�I p X
T7
Z_ r
r
-CJd
- -
-
- -.
.0
Z
O
�
Z
�
`f
--------------
DRIVEWAY
00
mz
n
➢�
�m
z z
0 0
o r�
m �
o z =�-,=-Tl c
cn�
cn �
W ��o
cnoz�
m
21»
�aN
o
rnoom
nn N
r*i
(�
o
o N
1
o y
cn
m.
z
z
0
�
z
q,5,
"
21ai
v
m r m r.
..z.
my
��oz
�.
mFTI D
r z
C
n O
II m
11
e.
o"
m
m
m
cn
icnom��
c�=�;uz;u �
DzooM
ALCOA
AVE
-0zMT
C)m
�
,co
m
Ozo
zTl O o>
cP� m
(.D.. J
U n O z
r-
-
Z
�/
7
D Z
Z p
�Cr)
m0
O
1 U)-0
O
z 0 O�
m _
O
z ALCOA AVE.
CURB
13' — 4"
o
< CA
�4 N
D CONCRETE
m SIDEWALK
o
c� 3'-8"
m z 31 „ 16'
_ 18'-7" EDGE OF SIDEWALK
2 4"
r r m
C' O m
p 1-�
14„ z O m
Dcn m = � �
m -{ T O
C� m p D m
0
O
m rz
pp
m_
cn m
m
m > 0 0 0
c_
o�zm�
mm
� - .0 -I -
m mZ
zToo0�
O co -
J , m A x
CY) J z r
J JO O m o —�
�cmA 0-) z1
CO �z D�
z
G Z
z
O (/)
z
m D
Z7 C
m o
O
o �
Cam �D
055 Dn
Z m
Z cf)
m O m m ;o
O X r z z
A � D F- _
Dz <m �
Zm�;u m
o
z
m
= � 12'-6" 2, m
z
0� m D�
m m
Fri O
�<
� m
41
CHAIN LINK FENCE W O
vz
EDGE OF CONCRETE SIDEWALK 7'
o CONCRETE -4 o SIDEWALK
N
m QUEEN POST rn
z _
� 27"
N _ N � -
r
o CURB
10' 9'-2 Q
m
19'-2" o
m
ALCOA AVE.
O m
r T -u -u W -0m
m F-��
m.n n D
01 O=m -<m
rn 0 _ m p
oz\-�Z*
Oo zzk7 C
� :u v
m
j mD
Z Z n
S
-I(nOm-U-0 zp
=�ZZu�7 II z
m>000 _ 0
m c- c-
D Z m n n
C) Fll Fri 7 0
m z z L
z� o0O�
O pp :. m
cn \/
D /\
O) m Z r 1
�m
II
(mnz n�n
zm mom
o
00 poN
O
m - Z - fTl
n O C7 C)
=O �� Z
o m O (/)
< CC1
-m F-
L m z
CHAIN LINK FENCE o
z
EDGE OF CONCRETE SIDEWALK
o -
M CONCRETE N
cn
m G7
SIDEWALK J
m
D 27" 28°
CURB N co N
5'-7" 10'-0"
15'-7" m
-O m
ALCOA AVE.
(.0�
m
-4cnom-v
m > 0 0 0
MM
D�zmnn
0- O�
m
O Z C Z Z
zmO O�
O cc).. m
rn<, c��(
I CPn �
�m O�
I < z
L
rTl
5'
38'
V
o
D
C
16'
20'
b
20"
C�
N
Ui
CJt
m
DOWNEY RD.-
0 Fll
Nc�
oM
o
r�
0
rn
I
o _
rn
z(y)
�
D
O
rn
�
C�
o
(A
J
C
41
z
c
�
m
n
o
-
z
rn
r1
�v1om_U-D
FT1 D000
M C_ C
D�zmnn
m
b-
m
o0C)zz
-
z-r1oC)OD
0 � Z < m
n ��
Cn z
oQ
om
D D
co Z
o�
O�
CID
Q�
D
C�
m
—I
IRON
FENCE
PLANTER
�'
o
cn
o
m
CONCRETE 5'
N
A
10'_2"
J
co
o
SIDEWALK
=o
=
D
6'-9"
20'
20'-3"
m
0
C)
DOWNEY RD.
m
Q
rri
Q m
z
t
m
v
�m
n
m g
v
m
m,
z
CJ�
�
D
Z
J
Q
Q
<
—I Cn 0 m -0
6 = �u Z ;�u ;u
mDG-OO
m c-
�-I zm mm
C
G-)- G7m --Am
m z z
z�000�
O� •• m
Ch
n
D
0 J Z J
J NC7 Q
m
cn mm�x
< U
��r
z
I
CO.-
1
-
-
-
-
m
_0
z
O
z
/O
m
Z
O
TZ
BLOCK WALL
-P -P
GAS GAS
MANHOLE MANHOLE
CONCRETE
SIDEWALK
40> 35" 8' 10'
41
c
CURB
DOWNEY RD.
i C) cn m
m cDn z o
m O m ,1
oFll mK o
m cn <
O m (�
O Cn
D
(n -< m m N
S
cf) �mN m
m
0
O p O N p
�D
m D 0 0 0
_ mz
m
�mi-zmm O z
G-)
zm
F9 ni —0i m
77 z0 _
m L II
O ZM Z Z
zmo o> _ O
O� �UD mQo
D� o
O� UtOOZ
r
J CA m p �
cn N m X
U' �zr
C7 fir— D—
I
m z
O
Z
z
DOWNEY
RD.
0
o
rrn
K
m
--I'
m
cn z_
60
0
m
>
m
D
>
CD
oC
CA
z
30dj8�3N0
0
0
co
0
�z
<
ti
313233N00
W
O
z
err
r,
Do
z
z m
m m
M
c)m_
J =X
0
0
_
OM
z�\
I z
�ZO
Z
O
0 0 N
0
_
_
O
C
0
O•
C
� II
0
�cn om-o-0
= x z x
R R TRACKS
m>000
-
m c-- �
-u
-I m m
o- 0M.n�
m
Ozmzz
z-n000>
-
0
O) 0 Z
J M m
r
O�
M
cn m�X
<� I �
zr
m 41z
D1®
m
z
O
•
Z
��2� � ���
EXHIBIT C
EXHIBIT C
INSURANCE SCHEDULE (NE%TLINK)
The Contractor shall provide proof of insurance, including a standard
certificate of insurance, in at least the following amounts and coverage
(combined single limit permitted):
I.
Coverage and
Limits
Boaily
Injury
Property Damaan
Hazards Each
Eerson
Ea_ch_Accirlent
Each Accident
Automobile Liability
Owned Automobiles
$ 500,000
$1,000,000
$ 500,000
Hired Automobiles
$ 500,000
$1,000,000
$ 500,000
Non -Owned Auto-mobilies__
-$_.-..5.00, 000
$1,000,000
$ 500,000
Workers' Compensation
S Statutory
Emal_Qyers.' Liabilitv
$1,000,000
ner emolover
II. General Liability
Premises Operations $1,000,000 $2,000,000 $1,000,000
Elevators
(if applicable) $1,000,000 $2,000,000 $1,000,000
Independent
Contractors $1,000,000 $2,000,000 $1,000,000
Contract Liability S1.000.000 S2.000.000 $1,000,000
LDOD ODD$1,000,000I 1 D0o 000
a. The general liability policy shall contain the following special
endorsements which shall be noted on or attached to the standard
certificate of insurance:
1. An endorsement naming the City of Vernon, its officers, and
employees as insureds under the policy.
2. An endorsement providing the City of Vernon thirty (30) days
notice of cancellation or material reduction of coverage.
3. An endorsement providing coverage for all operations under City of
Vernon Contract number
4. Such other endorsement as may be required by addendum hereto.
b. In addition to the standard certificate of insurance, proof of general
and umbrella liability coverage shall be furnished in the form checked
below. -Certification of the followin roofs by the insurance agent o
broker will not be accented:
X For each policy, a notarized letter from the underw iter or
carrier certifying that the coverage and statements in the
standard certificate of insurance (attached thereto) are true and
correct and that the signature is an officer authorized to so
certify.
A copy of each policy certified by an officer of the underwriter
or carrier and notarized.
OFFICE OF THE CITY ADMINISTRATOR/CITY CLERK
INTER -OFFICE MEMORANDUM
To: Kenneth DeDario, Director of Utilities
Kevin Wilson, Dir or of Community Services & Water
From: Gloria J. Oro r�
Date: November 29, 1999
Re: Nextlink California, Inc. - Utility Pole Lease
Agreement
Enclosed herewith is a copy of the Utility Pole Lease Agreement
that was approved by City Council on November 23, 1999 through
Resolution No. 7451.
NEVs.TI_INK°
C A L 1 F O R M 1
November 22, 1999
Eduardo Olivo
City Attorney's Office
2440 So. Hacienda Blvd., Ste. 223
Hacienda Heights, CA. 91745
RE: City of Vernon - Utility Pole Lease Agreement
Dear Eddie:
Please find enclosed the requested notarized letters by the underwriters
for each Insurance Policy. If there are any questions or concerns about these
documents please feel free to call me at (949) 417-7766.
Very truly yours,
/�Uv
Karen M. Potkul
V.P. Legal & Regulatory Affairs
Enclosures
1924 Deere Avenue
Santa Ana, CA 92705
714.417.7700
►AMIUMMLyrO]
CITY OF VERNON
4305 SANTA FE AVENUE
VERNON CA 90058
Certificate of Insurance Dated 11/16/1999
Certificate Holder - City of Vernon
Sir or Madam,
WAUSAU
November 18, 1999
This is to confirm that the coverage and statements outlined on the captioned certificate
(copy attached) are true and correct.
Sincerely,
Lynn Tallon, CPCU
Underwriter
Wausau Insurance Companies - Wausau Business Insurance Company
Company
4810-00-000805
Policy Number
COMPANY ACKNOWLEDGEMENT
STATE OF WISCONSIN ) COUNTY OF MARATHON )
On this 18th day of November, 1999, before me personally appeared
Lynn Tallon to me known and known to be the of
Wausau Business Insurance Company (Company).
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Official Seal the
day and year first above written.
My Commission expires a /fzo�
Notary Public, Residing at
WAUSAU I SURANCE COMPANIES
2000 WES-rWOOD DR • WAUSAU WI 54401-7881 • (715) 845-5211
MAILING ADDRESS: PO BOX 8017 • WAUSAU WI 54402-8017
ACORD,. CERTIFICATE
DATE
OF LIABILITY INSURANCE
11 /16/1999
PRODUCER Aon Risk Services, Inc. of Washington
THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION
1420 Fifth Avenue, Suite 1200
Seattle, WA 98101-4030
206-749-4800 FAX: 206-749-4860
ONLYAND:CONFERS NO RIGHTS UPON THE CERTIFICATE
HOLDER THIS CERTIFICATE DOES NOT AMEND EXTEND OR
ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW.
Insurance Services CA License No. 0601400
INSURERS AFFORDING COVERAGE
INSURED NEXTLINK California, Inc.
INSURER A: St. Paul Fire &Marine
ATTN: George Vareldzis
INSURER B: National Union AIG
INSURER C: Wausau Businesslnsurance Company
1924 Deere Avenue, Suite 110
INSURER D:
Santa Ana CA 92705
INSURER E:
COVERAGES
THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAKED ABOVE FOR THE POLICY PERIOD INDICATED: NOTWITHSTANDING
ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACTOR OTHER
DOCUMENTWITH RESPECTTO WHICH THIS CERTIFICATE MAY BE ISSUED OR
MAY PERTAIN THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN
IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH
POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID
CLAIMS.
INSLTR
TYPE OF INSURANCE
POLICY NUMBERCY
0
LIMITS
EACH OCCURRENCE
$ 1,000,000
GENERAL LIABILITY
A
X COMMERCIAL GENERAL LIABILITY
CLAIMS MADE F OCCUR
TE08400869
10/1/1999
10/1/2000
FIRE DAMAGE(Anyonefr
$ 100,000
MED EXP (Anyoneperson)
$ 5,000
PERSONAL &ADVINJURY
$ 1,000,000
GENERAL AGGREGATE
$ 2,000,000
GEN'L AGGREGATE LIMIT APPLIES PER:
RO•
POLICY PJeCT LOC
PRODUCTS - COMPIOP
$ 2,000,000
A
AUTOMO
X
BILE LIABILITY
ANY AUTO
TE08400869
10/1/1999
10/1/2000
COMBINED SINGLE LIMIT
$ 1,000,000
ALL OWNED AUTOS
BODILY INJURY
$
SCHEDULED AUTOS
(Per person)
(Per accident)
$
X
X
HIRED AUTOS
NON -OWNED AUTOS
PROPERTY DAMAGE
$
(Per accident)
GARAGE LIABILITY
AUT 0 ONLY - EA
$
ANY AUTO
OTHER THAN EAACC
$
$
ALT O ONLY: AGG
B
EXCESS LIABIUTY
X OCCUR CLAIMS MADE
BE9329675
—
10/1/1999
10/1 /2000
EACH OCCURRENCE
$ 1,000,000
AGGREGATE
$ 1,000,000
$
DEDUCTIBLE
$
RETENTION
$
C
WORKERS COMPENSATION AND
EMPLOYERSUABUTY
4810-00-000805
10/1/1999
10/1/2000
WCSTATU-
X TORY LIMITS ER
-
E.L. EACH ACCIDENT
$ 1,000,000
E.L. DISEASE - EA
$ 1,000,000
E.L.DISEASE-POLICY
$ 1,000,000
OTHER
DESCRIPTION OF OPERATIONSILOCATIONSIVEHICLESIEXCLUSIONS ADDED BY ENDORSEMENTISPECIAL PROVISIONS
The City of Vernon, its officers and employees are added as an Additional Insured's
under policy designated below and as per attached, as respects their interest in the
Insured's operations only.
CERTIFICATE HOLDER ADDITIONAL INSURED:INSURER LETTER: A
CANCELLATION
City Of Vernon
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION
DATE THEREOF, THE ISSUING INSURER WILL 9XEX➢X("WIL 30 DAYS WRITTEN
NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT,
�tFJutERi%4C9CXX
4305 Santa Fe Ave.
RIZED REPRESENTATI
Vernon CA 90058
1.
ACORD 25-S 7/97
ACORD CORPORATION 1988
Technology
November 17, 1999
City of Vernon
4305 Santa Fe Avenue
Vernon, CA 90058
RE: Certificate of Insurance Dated 11/16/99
Certificate Holder — City of Vernon
Gentlemen:
St. Paul Fire and Marine
Insurance Company
1200- 6th Ave., Ste. 1600
Seattle, WA 98101-3117
206.442.2200
Fax 206.442.2273
This is to confirm that the coverage and statements outlined on the captioned certificate
(copy attached) are true and correct.
Members of
The St. Paul Companies:
St. Paul Fire and Marine
Insurance Company
St. Paul Mercury
Insurance Company
St. Paul Guardian
Insurance Company
The St. Paul
Insurance Company
The St. Paul
Insurance Company
o£ Illinois
St. Paul Property
and Casualty
Insurance Company
St. Paul Fire and Casualty
Insurance Company
St. Paul Indemnity
Insurance Company
St. Paul Insurance
Company of
North Dakota
United States Fidelity and
Guaranty Company
Fidelity and Guaranty
Insurance Underwriters, Inc.
Fidelity and Guaranty
Insurance Company
USF&G Insurance
Company of Mississippi
USF&G Insurance Company
of Illinois
USF&G Insurance
Company of Wisconsin
Sincerely:
A/P
1�uqwriter
�L�-
Company
Policy Number
COMPANY ACKNOWLEDGEMENT
STATE OF -` A ) COUNTY OF Y--1 Vl-a
On his day of 14DV-Vv�.V" , 19g6l before me personally appeared
-41 to me known and known to be the of
t I�G�(� I 1"%i v� Uy " VLCI (Company).
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Official Seal the
day and year first above written.
My Commission expires
Notary Public, Residing at VvA
AMERICAN INTERNATIONAL GROUP
520 Pike Street Phone: 206-344-3200
Suite 2700 Fax: 206-343-0677
Seattle, WA 98101
Excess Casualty
November 18, 1999
City of Vernon
4305 Santa Fe Avenue
Vernon, CA 90058
Re: Certificate of Insurance Dated 11/16/99
Certificate Holder — City of Vernon
Nextlink Communications, Policy No. BE 932-96-75
Gentlemen:
This is to confirm that the coverage and statements outlined on the captioned certificate
(copy attached) are true and correct.
Sincerely,
A. Cole
Underwriting Manager
COMPANY ACKNOWLEDGEMENT
STATE OF COUNTY OF )
On this dof ���1 a before me personally appeared
i ( Lt to me known and known to be the of
s is (Company).
IN THE WITNESS WHEREOF,
have hereunto set my hand and affixed my Official
NOO 17 '99 14:12 FR RON RISK SERUICES WR 2067494960 TO 17158479825 P.08i09
Policy Number: TE08400869 Commercial General Liability
THIS ENDORSEMENT CANGES THE )POLICY. PLEASE READ IT CAREFULLY.
ADDITIONAL INSURED -
STATE OR POLITICAL SUBDIVISIONS - PERMITS
This endorsement modifies insurance provided under the following:
COMMERCIAL GENERAL LIABILITY' COVERAGE PART.
State or political Subdivision: SCHEDULE
CITY OF VERNON, ITS OFFICERS AND EMPLOYEES
4305 Santa Fe Avenue
Vernon, CA 90058
(If no entry appears above, information required to complete this endorsement will be shown in
the Declarations as applicable to this endorsement.)
WHO IS AN INSURED (Section 11) is amended to include as an insured any state or political
subdivision shown in the Schedule, subject to the following provisions:
1. This insurance applies only with respect to operations performed by you or on your behalf
for which the state or political subdivision has issued a permit.
2. This insurance does not apply to:
a. "Bodily injury," "property damage," "personal injury" or "advertising injury" arising out
of operations performed for the state or municipality; or
b. "Bodily injury" or "property damage" included within the "products -completed
operations hazard."
3. Thirty (30) days notice of cancellation will be provided to the above in the event of
cancellation or material reduction of coverage.
CG 2012 1185 Copyright, Insurance Services Office, Inc. 1984
NOU 17 '99 14:13 FR AON RISK SERUICES WR 2067494860 TO 17158479825 P.09/09
IMPORTANT
If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. A statement of
this Certificate does not confer rights to the certificate holder in lieu of such endorwement(s).
IF SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may
require an endorsement. A statement on this certificate does not confer rights to the certificate holder
in lieu of such endorsement(s).
DISCLAIMER
The Certificate of Insurance on the reverse side or first page of this form does not constitute a contract
between the issuing insurer(s), authorized representative or producer and the certificate holder, nor does
it affirmatively or negatively amend, extend or alter the coverage afforded by the policies listed thereon.
** TOTAL PAGE.09 **
CITY COUNCIL
LEONIS C. MALBURG
Mayor
THOMAS A. YBARRA
Mayor Pro-Tem
Wm. 'BILL" DAVIS
Councilman
H. "LARRY" GONZALES
Councilman
W. MICHAEL McCORMICK
Councilman
BRUCE V. MALKENHORST
City Administrator / City Clerk
FAX (323) 581-7924
DAVID B. BREARLEY
City Attorney
FAX: (626) 330-5818
KEVIN WILSON
Director of Community Services & Water
FAX: (323) 588-2761
CITY HALL
4305 SANTA FE AVENUE, VERNON, CALIFORNIA 90058
TELEPHONE (323) 583-8811
December 8, 1999
Mr. Dwayne Nielson
President
Nextlink California, Inc.
1924 Deere Avenue
Santa Ana, CA 92705
Re: Utility Pole Lease Agreement
Dear Mr. Nielson:
KENNETH J. DeDARIO
Director of Municipal Utilities
FAX: (323) 583-1983
DAVE TELFORD
Fire Chief
FAX: (323) 581-1385
BRUCE W. OLSON
Police Chief
FAX: (323) 583-5236
Enclosed is a duplicate original Utility Pole Lease Agreement
that was approved by the Vernon City Council on November 23,
1999 through Resolution No. 7451.
If you should have any questions, please refer them to Ken
DeDario at Ext. 211.
Very truly yours,
G o is J. O/roj
Chief Deputy City Clerk
GJO:rcm
cc: Director of Utilities
Director of Communities Services
our Agreement File No. 99-078
CITY COUNCIL
LEONIS C. MALBURG
Mayor
THOMAS A. YBARRA
Mayor Pro-Tem
Wm. 'BILL" DAVIS
Councilman
H. "LARRY" GONZALES
Councilman
W MICHAEL McCORMICK
Councilman
BRUCE V. MALKENHORST
City Administrator / City Cleric
FAX (323) 581-7924
City Council
City of Vernon
L
DAVID B. BREARLEY
City Attorney
FAX: (626) 330-5818
KEVIN WILSON
Director of Community Services & Water
FAX: (323) 588-2761
CITY HALL
4305 SANTA FE AVENUE, VERNON, CALIFORNIA 90058
TELEPHONE (323) 583-8811
Honorable Members:
November 16, 1999
KENNETH J. DeDARIO
Director of Municipal Utilities
FAX: (323) 583-1983
DAVE TELFORD
Fire Chief
FAX: (323) 581-1385
BRUCE W. OLSON
Police Chief
FAX: (323) 583-5236
Transmitted herewith is a Utility Pole Lease Agreement with
Nextlink California, Inc. to lease space for the installation
and maintenance of telecommunication facilities on City owned
and operated utility poles. The annual rental charge to
Nextlink is $25.00 per pole and $12.50 per attachment to a City
pole anchor. In addition, Nextlink will pay for all relevant
engineering costs and all make-ready charges. The initial term
of the lease is for 10 years.
This has been reviewed by the Director of Utilities and the City
Attorney, and it is hereby recommended that the Agreement be
approved, contingent upon all requirements therein being met,
and the Mayor and City Clerk be authorized to sign the
Agreement.
Very truly yours,
Bruce V. Malkenhorst
City Clerk
BVM:gst
Enclosure
11/15/99 15:30 FAX 626 330 51,118
DAVID B BREARLEY 444 CITY CLERK 121001
94� CITY ATTORNETS OFFICE
CITY OF VERNON
2440 South Hacienda Boulevard, Suite 223
Hacienda Heights, California 91745-4770
Telephone: (626) 336-3408
Facsimile: (626) 330-5818
TO:
DATE:
COMPANY:
FAX NO.:
FROM:
RE:
COMMENTS:
FACSIMILE COVER SHEET
Bruce Malkenhorst
November 15, 1999
Speed Dial 06
Eduardo Oliva
Utility Pole Lease Agreement
4-2-
i/
rl
If you do not receive 16 pages in their entirety (including this cover
sheet), please call Christy at (626) 336-3408.
This facsimile transmission may contain CONFIDENTIAL INFORMATION, which may also be LEGALLY PRIVILEGED and
which is intended only for the use of the addressee(s) named above. If you are not the intended recipient of this facsimile,
or the employee or agent responsible for delivering it to the intended recipient, you are hereby notified that any
dissemination or copying of this facsimile may be strictly prohibited. If you have received this facsimile in error, please
immediately notify us by telephone and return the original facsimile to us at the above address via the postal service.
Thank you
11/15/99 15:30 FAX 626 330 5818
DAVID B BREARLEY 444 CITY CLERK 0002
CITY COUNCIL
LEONIS C. MALBURG
Mayor
THOMAS A. YBARRA
Mayor Pro-Tem
Wm. "BILL" DAVIS
Councilman
H. "I,ARRY" GONZALES
Councilman
W. MCY-IAEL MCCORMICK
Councilman
DAVID B_ BREARLEY
City Attorney
FAX (626) 3305918
KEVIN WILSON
Director of Community Services & Water
FAX: (323) 588-276.1
BRUCE V. MALKENHORST CITY HALL
City Administrator / City Clerk 4305 SANTA FE AVENUE, VERNON, CALIFORNIA 90058
FAX (323) 581-7924 TELEPHONE (323) 585-8911
November 15, 1999
Mr. Bruce V. Nfalkenhoarst
City Admm—strator
City of Vernon
4305 Santa Fe Avenue
Vernon, ;CA 90058-0805
Re: Nextlink Lease Agreement
Dear Bruce:
KENNETH J. DeDARIO
Director`of Municipal Utilities
FAX: (323) 583.1983
DAVE TELFORD
Fire Chief
FAX: (323) 581-) 385
BRUCE W OLSON
Police Chief
FAX: (323) 583-5236
Umrdo Mivo (626) 336.3409
I am enclosing for your review a draft of a Lease/Agreement between the City
and Nextlink in connection with Nextlink's installation of fiber optic cable on City utility
poles. The following are highlights of the Lease;
1. Nextlink will pay for all relevant engineering costs incurred by the
City;
2. Nextlink will pay for all make-ready charges (i.e., costs incurred by the
City) in connection with Nextlink's installation;
3. Nextlink will pay an annual rental charge of $25.00 per pole and
$12.50 per attachment to City pole anchor, which charge shall be increased annually based
upon any applicable increase in the CPI;
4. The City will receive the benefit of a "most favored nation" clause.
This language will allow the City to change the Lease rate should Nextlxnk enter into a
11/15/99 15:31 FAX 626 330 5818
DAVID B BREARLEY 444 CITY CLERK 10003
Mr. ]Bruce V. Maikenhorst
November 15, 1999
Page 2
similar agreement or lease with another municipality or public utility which has more
favorable compensation terms;
5, The City may increase the rate of compensation/rental charge if it
determines that another public utility is paying a higher rate for similar pole attachments in
any other city, if the City is offered higher rates by any other public utility for pole
attachment or if such rate is established by applicable law or regulation; and
6. The term of the lease is lb years.
At this time, Nextlink has agreed to everything but the language in No. 5
above. I will be discussing this issue with them in further detail later today.
Very truly yours,
Z�— l ti
Eduardo Olivo
City Attorney for
the City of Vernon
Enclosure
.EO/cb i
11/15/99 17c43 FAX 626 330 5818 DAVID B BREARLEY 444 CITY CLERK
121 002
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
EXE-UTION COPY
UTILITY POLE LEASE AGREEMENT
This UTILITY POLE LEASE AGREEMENT ("Lease") is entered into as of the
day of November, 1999,
BY AND BETWEEN:
CITY OF VERNON
a municipal corporation
(hereinafter referred to as "City")
4305 Santa Fe Avenue
Vernon, CA 90058-0805
NEXTLINK CALIFORNIA, INC.
a Washington corporation
(hereinafter referred to as "NEXTLINK")
1924 Deere Avenue
Santa Ana, CA 92705
RECITALS
WHEREAS, City owns and operates certain utility poles located in the CITY, which
are more particularly described in Exhibit A ("Utility Poles"); and
WHEREAS, NEXTLINX desires to install and maintain telecommunications facilities
("NEXT.INK's Facilities") on such Utility Poles; and
VVFEREAS, NEXTLINX desires to lease space on the Utility Poles in order to place
and maintain NEXTLINK's Facilities on such Utility Poles, and City has agreed to lease,
under the, conditions set forth below, space on the Utility Poles for the placement of
NEXTLINK's Facilities;
NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants
provided in this Lease, the parties agree as follows:
SCOPE OF AGREEMENT
I. Subject to the provisions of this Lease, City hereby leases to NEXTLINK, and
NEXTLINK hereby leases from City, a portion of the space within the communications
grade of the Utility Poles for the placement of NEXTLINK's Facilities. This Lease shall be
non-exclusive and is subject to existing leases by the City of space on the Utility Poles which
are the subject of this Lease.
2.' No use of the Utility Poles by NEXTLINK or payment of any rent or other
charges required under this Lease shall create or vest in NEXTLINK any easements or other
11/15/99 17:44 FAX 626 330 5818 DAVID B BREARLEY 444 CITY CLERK 10009
1 ownership of property rights of any nature in the Utility Poles other than the rights granted
2 under this Tease. Furthermore, this Lease shall not constitute an assignment of any of City's
3 rights to use the public or private property upon which the Utility Poles are located.
4 3. The purpose of this Lease is to facilitate installation of fiber optic cable, which
5 shall only be used by NEXTLINK to carry telecommunications traffic for the benefit of
6 NEXTLINX and its customers. Any attachments to Utility Poles required by NEXTLINK in
7 connection with such installation shall be made pursuant to written requests submitted by
8 NEXTLINK to City in a form designated and provided by City. Prior to installation of
9 NEXTLINK's Facilities, NEXTLINK shall notify City of such intended installation and shall
10 obtain all permits and approvals required by all applicable public and private authorities for
11 such installation. In performing such installation, NEXTLINK (i) shall not attach (whether
12 by overlash or otherwise) more than two (2) cables to any single attachment made by
13 NEXTLINK to a given Utility Pole, (ii) shall improve existing communication grade down
14 guys and'grounding for all Class City circuits on the Utility Poles (all at the sole cost and
15 expense of NEXTLINK) to the extent necessary to comply with current applicable public
16 utility industry standards, and (iii) shall not, with respect to Utility Poles solely owned by
17 City, andior joint poles where City is the base owner install any facilities which are
18 incompatible with City's or joint users' use of the Utility Poles, with the nature and extent of
19 any such incompatibility to be determined by City in City's sole, good -faith discretion.
20 4.' Neither City's right to maintain the Utility Poles nor its right to operate its
21 facilities in such a manner as to best enable it to fulfill its own service requirements will be
22 in any manner limited by this Lease.
23 5. Nothing contained in this Lease shall be construed (i) to compel City to construct,
24 reconstruct, retain, extend, place or maintain its Utility Poles for use by NEXTLINK unless
25 needed for City's own service requirements, or (ii) as a limitation against City with respect
26 to any previous agreement by City or any agreement which it may in the future enter into
27 with other parties; however, City agrees that City or such other parties shall not
28 unreasonably interfere with NEXTLZNK's rights under this Lease.
2
11/15/99 17:45 FAX 626 330 5818
DAVID B BREARLEY 444 CITY CLERK 10004
1 6. The provisions of this Lease are subject to, and the parties shall at all times
2 observe and comply with, all laws, ordinances and regulations, including City's charter, and
3 all City ordinances of general applicability which affect the parties' rights and obligations
4 under this Lease.
5 TERM OF LEASE
6 7. This Lease shall be for an initial term of ten (10) years, beginning on the
7 effective date as set forth herein (the "Effective Date") and shall continue in effect until
8 expiration of such term unless it is earlier terminated as provided in this Lease or by
9 operation' of law.
10 RELOCATION
11 8.' City reserves the right to remove, reconstruct, alter, reconfigure or relocate any
12 Utility Pole as City may elect in its sole discretion, and City shall immediately notify
13 NEXTLINK if such actions are proposed. In the event City elects to take any such action
14 without eliminating City's above -ground utility distribution network within the immediate
15 vicinity of Utility Poles, NEXTLINK shall either (i) remove NEXTLINK's facilities and
16 relocate them (at NEXTLINK's sole cost and expense) to other above -ground facilities (it
17 being understood, however, that if any third party pays all or any part of the costs of
.18 relocating the parties' respective facilities, NEXTLINK will be paid an equitable portion of
19 such payment) or (ii) elect to terminate this Lease, with the understanding that any such
20 termination shall not be effective until NEXTLINK is afforded reasonable time to relocate its
21 facilities.If, however, City elects to remove the Utility Poles entirely and eliminate any
22 above -ground utility distribution network within the immediate vicinity of the Utility Poles,
23 this Lease shall terminate after NEXTLINK has been given reasonable time not to exceed
24 180 days ito relocate its facilities (as may be specified by applicable City ordinance).
25 CONSTRUCTION AND MAINTENANCE
26 9.: Prior to installation of NEXTLINK's Facilities, NEXTLINK shall provide to City
27 a copy of its construction drawings (including any excess cable storage mquirements) and
28 installation schedule for City's approval. Approval of the drawings, cable storage
3
11/15/99 17:46 FAX 626 330 5818 DAVID B BREARLEY 444 CITY CLERK 10005
1 requirements and schedule shall be coordinated with City's Utilities Department and/or the
2 City's Community Services Department. In the event City determines that rearrangement of
3 the ex .sw ,,r, Licilities on the Utility Poles is required before NEXTLINK's Facilities can be
4 accommodated, City will advise NEXTLINK in writing of the estimated make-ready charges
5 (including investigation, design and engineering fees) for such rearrangement work; if
6 NEXTLINK requires City to perform engineering services on a rush basis, NEXTLINK shall
7 compensate City for said services at a rate to be agreed upon by the parties. NEXTLINK
8 shall pay City within thirty (30) days from its receipt of City's invoice for such charges.
9 10. NEXTLINK shall, at its own expense, during the term of this Lease, install and
10 maintain NEXTLINK's Facilities in a safe condition reasonably acceptable to City so as not
11 to conflict or interfere with the facilities placed by City or others. NEXTLINK's Facilities
12 shall be placed and maintained in accordance with the requirements and specification set
13 forth in Exhibit B. In connection with the foregoing, it is anticipated that each party may,
14 from time to time, conduct field audits in order to update databases of pole records. The
15 parties age to cooperate in sharing results of such audits.
16 11. In the event of an emergency:
17 1 (a) QUY EMERGENCY -
18 (1) City's work shall take precedence over any operations on the Utility
19 Poles;
20 (2) NEXTLINK shall immediately notify City's Utilities Department of any
21 emergency situation related to the Utility Poles or NEXTLINK's Facilities.
22 I (b) NEXTLINK EMERGENCY -
23 City shall immediately notify NEXTLINK at its 'Technical Affiliate, Plano,
24 Texas (Phone No. (888) 639-8522) of any emergency situation related to the Utility Poles or
25 NEXTLINK's Facilities.
26 12. If any part of NEXTLINK's Facilities are not placed and maintained in
27 accordance with the terms and conditions of this Lease and NEXTLINK has not corrected the
28 violation within thirty (30) days after receipt of a written notice from City, then City may, at
4
11/15/99 17.46 FAX 626 330 5818 DAVID B BREARLEY 444 CITY CLERK 10006
1 its option, correct the condition and notify NEXTLINK in writing prior to performing such
2 work. However, in the event such conditions pose an immediate threat to the physical
3 integrity of City's facilities, to surrounding property, or the health or safety of the public,
4 City may perform such work and take any action that is reasonably necessary without first
5 giving wimen notice to NEXTLINK. As soon as practicable thereafter, City will advise in
6 writing of the work performed or the action taken. NF=INK shall be responsible for all
7 expenses incurred by City associated with any work or action performed by City pursuant to
8 this Section and shall reimburse City within thirty (30) days from its receipt of City's
9 invoice.
10 13. City reserves the right to make periodic inspections of any part of NEXTLINK's
11 Facilities; provided, however, that NEXTLINK shall have the right to have one or more of
12 its employees or representatives present during any such inspection. City shall. give
13 NEXTLINK advance written notice of such inspections, except in those instances where, in
14 the judgment of City, safety considerations justify the need for such an inspection without the
15 delay of providing written notice (in which event telephonic notice shall be provided instead).
16 Making periodic inspections or the failure to do so shall not impose upon City any liability
17 nor relieve ,4E=1NK of any responsibility, obligations or liability assumed under this
18 Lease.
19 RENT
20 14. (a) The annual rent required to be paid by NEXTLINK shall be equal to the
21 sum of (i) Twenty Five Dollars ($25.00) multiplied by the number of NEXTLINK
22 attachments made to the Utility Poles, bus (ii) Twelve Dollars and Fifty Cents ($12.50)
23 multiplied by the number of attachments to City pole anchors installed by NEXTLINK in
24 connection with this Lease. In addition, the amounts in clauses (i) and (ii) of the preceding
25 sentence $hall be increased annually based upon the increase which appears in the Consumer
26 Price Index (CPI), All Items, Base 1982-84 Index, as published by the United States
27 Department of Labor, Bureau of Labor Statistics for all Urban Consumers in the Los
28 Angeles -Anaheim -Riverside Metropolitan Statistical Area since the preceding CPI, Annual
5
11/15/99 17:47 FAX 626 990.5818 DAVID B BREARLEY 444 CITY CLERK [a007
1 rent shall be due and payable annually in advance upon each anniversary of the Effective
2 Date occurring during the Lease until the Lease has terminated or expired.
3 (b) Most Favored Nation Clause: Notwithstanding the language of subsection
4 (a), should NEXTLINK, after the Effective Date of this Lease, enter into a similar lease or
5 agreement with another municipality, public utility or publicly owned utility, which lease or
6 agreement contains financial benefits for such municipality, public utility or publicly owned
7 utility, which are superior to those in this Lease, the Lease shall be modified to incorporate
8 the same or substantially similar superior benefits. Conversely, if City provides another
9 public with a lease rate which is lower than the rate being paid by NEX'I'LXNK
10 pursuant to this Lease, City shall make the same or a comparable rate, available to
11 NEXTLM.
12 Further, notwithstanding the language of. subsection (a), should City determine
13 that reasonable compensation for the installation of NEXTLINK's Facilities on City Utility
14 Poles is higher than the rental charge established in this Lease, on 180 days written notice by
15 City, the Lease shall be modified to incorporate such reasonable compensation terms. The
16 City's determination of such reasonable compensation shall be based upon any of the
17 following:
18 1. The highest compensation rate being paid by any other public utility to any
19 other municipality, public utility or publicly owned utility, under a similar lease or
20 agreement;
21 2. The highest compensation rate offered to City by any other public utility for
22 installation of similar facilities on City utility poles; or
23 3, The establishment of such compensation rate by applicable law or regulation.
24 (c) In the event City shall terminate this Lease before the expiration for any year
25 for which the rental has been paid, City shall refund to NEXTLINK the charge for rental for
26 the unexpired portion of such year.
27 /1/
28
R
11/15/99 17:48 FAX 626 330 5818 DAVID B BREARLEY 444 CITY CLERK 0 008
I INSURANCE
2 15. Without limiting City's right to indemnification, NEXTLINK shall, at its own
3 expense, maintain throughout the term of this Tease, insurance coverage as follows (which
4 requirements may be revised by City's Risk Manager, if requested by NEXTUNK and if she
5 determines such revision is in City's best interest):
6 (a) NEXTLINK agrees to provide insurance in the amounts and forms specified
7 in Exhibit "C", which is attached hereto and made a part hereof by reference. Comparable
S coverage shall be provided for each subcontractor used in the performance of this Lease,
9 NEXTUNK shall submit to City, documentation indicating compliance with these minimum
10 requirements no less than one (1) day prior to the beginning of this Lease. This Lease shall
11 not becoiiie effective until the above insurance has been obtained and proof of insurance has
12 been filed with and approved by City.
13 (b) In addition to any other remedies City may have, if NEXTUNK fails to
14 provide oir maintain any insurance policies or policy endorsements to the extent and within
15 the time herein required, City may, at its sole option, terminate this Lease; provided,
16 however, termination of this Lease is an alternative to other remedies City may have, and is
17 not the exclusive remedy for any such failure. Nothing in this Lease shall be construed as
18 limiting in any way the extent to which NEXTLINK may be held responsible for payments of
19 damages to persons or property resulting from the acts, omissions, operations or activities of
20 NEXTLINK or any agent, representative or employee of any contractor or subcontractor of
21 NEXTUNK.
22 RELEASE AND INI)EMNITIES
23 it . NEXTLINK hereby agrees to indemnify, defend, and hold harmless City
24 (including its officers and employees) from and against any and all claims, demands,
25 expenses, damages, judgments, defense costs, or liability of any kind or nature (including
26 actions brought against City by the employees or dependents, heirs, assigns or survivors of
27 such employees of NEXTLINK or NEXTLINK's agents, representatives, customers,
28 contractors, or subcontractors) presented against City arising out of or in connection with
7
11/15/99 17:49 FAX 626 330 5818 DAVID B BREARLEY 444 CITY CLERK [a009
1 NEXTLINK's (including its employees, agents, representatives, contractors, and
2 subcontractors) performance or work under this Lease, or otherwise related to NEXTLINK's
3 placement of equipment on City's property, excluding only such liability actions as have been
4 determined, by a court of competent jurisdiction, to have arisen out of the sole negligence of
5 City.
6 17. The indemnification obligations in Section 16 shall survive the termination of this
7 Lease.
$ 19. NEXTLINK hereby releases City from any liability for damage, including
9 without limitation, all consequential damages of any kind or nature, to any of NEXTLINK's
10 property associated with this Lease.
11 TERMINATION
12 19. NEX'I'LINK shall have the right to terminate this Lease at any time during the
13 Lease term, provided that (i) any such termination shall become effective on a day which is
14 immediately prior to an anniversary of the Effective Date, and (ii) NEXTLINK provides
15 written nontice of such termination to City at least ninety (90) days prior to the intended
16 effective date of such termination.
17 20. Notwithstanding the provisions of Section 19 hereof, if at any time NEXTLINK
18 fails or refuses to perform any of the covenants or conditions contained in this Lease, and
19 such failure or refusal shall continue for thirty (30) days after receipt of written notice by
20 NEXTLINK from City, then City, at its election and upon ten (10) days additional advance
21 written notice to NEXTLINK, may terminate this Lease. Notwithstanding the foregoing
22 sentence, I if NEXTLINK's effort to cure begins within thirty (30) days, and NEXTLINK
23 diligently pursues such core to completion and if, despite such diligent efforts, NEXTLINK
24 is unable to cure within thirty (30) days, then NEXTLINK's right to cure shall be extended
25 beyond thirty (30) days for so long as NEXTLINK diligently proceeds to do so,
26 21. Upon expiration or termination of this Lease for any reason, NEXTLINK shall
27 remove XTLINK's Facilities within thirty (30) days. In the event NEXTUNK fails to
29 remove NEXTLINK's Facilities within such thirty (30) day period, they shall be deemed
11/15/99 17:50 FAX 626 330 5818 DAVID B BREARLEY 444 CITY CLERK [a 010
1
2
0I
41
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23I
24
25
26
27
28
abandoned and City, at its sole discretion and without liability, may remove them and
NEXTLINK shall reimburse City for all costs associated with such removal.
22. Termination or expiration of this Lease shall not affect liabilities and obligations
incurred by either party prior to the effective date of such termination or expiration.
ASSIGNMENT
7l, With respect to the fiber optic cables to be installed as part of NEXTLINK's
Facilities, NEXTLINK shall not assign or otherwise convey any of its rights, obligations or
interests under this Lease in and to such cables, without the prior written consent of City,
which consent shall not be unreasonably withheld or delayed; provided, however, that
without such consent, NEXTLINK may assign all of its rights, obligations and interests to
any parent or majority -owned subsidiary of NEXTLINK, or any successor entity of
NEXTLINK (whether by merger, consolidation or sale of all or substantially all of the assets
of NEXTLINK or otherwise) provided such assignee assumes all of the obligations of
NEXTLINK under this Lease. The foregoing restriction on assignment shall not be
construed to prevent NEXTLINK from making available to its customers transmission
capacity within such fiber optic cables.
NO—T-ICES
74 Any notice required by this Lease shall be made by (i) facsimile, confirmed by
certified mail, return receipt requested, (ii) in writing by certified mail, return receipt
requested, or (iii) delivered in person or by overnight delivery, to the parties at the following
addresses;
CITY CITY OF VERNON
City Administrator
4305 Santa Fe Avenue
Vernon, CA 90058-0905
Telephone: (323) 583-8811
Telecopy: (323) 585-4661
With a copy to: CITY OF VERNON
Director of Utilities Department
4305 Santa Fe Avenue
Vernon, CA 90058-0805
Telephone: (323) 583-8811
Telecopy: (323) 585-4661
9
11/15/99
17:50 FAX 626 330 5818 DAVID B BREARLEY 444 CITY CLERK 2011
1 NEXTLINK NEXTILINX CALIFORNIA, INC.
1924 Deere Avenue, Suite 110
2 Santa Ana, CA 92705
Attention: Lee Arnold
3 Telephone: (949) 417-7762
4 Telecopy: (949) 417-7730
With a copy to: NEXTLINK CALIFORNIA, INC.
5 1924 Deere Avenue
Santa Ana, CA 92705
6 Attention: Karen Potkul
Telephone: (949) 417-7766
7 Telecwpy: (949) 417-7377
8 if;ether party changes its address during the term of this Lease, it shall so advise the
9 other party in writing, and all subsequent notices shall be sent to the new address.
10 DISPUTES
11 25. (a) If any dispute or claim arises out of the interpretation, performance, or
12 breach of this Lease, the parties agree that upon the written demand of either party, they will
13 meet within two (2) weeks of such demand to attempt in good faith to resolve the dispute.
14 That meeting will be attended by representatives of both parties having the authority to
15 resolve the dispute.
16 (b) With the exception of actions for injunctive relief, or which must be filed to
17 preserve a party's rights, the parties agree to conduct the meeting described above before
18 either party may commence an action in any court of law, concerning the disputes or claims
19 arising out of this Lease.
20 GENERAL PROVISIONS
21 20. LIENS AND ENCUMBRANCES: NEXTLINK shall not create, or allow to be
22 created, any lien or encumbrance, including, without limitation, tax liens, mechanic's liens,
23 or other liens or encumbrances with respect to work performed or equipment furnished, in
24 connection with the installation, repair, maintenance or operation of NEXTLINK's Facilities.
25 21. GOVERNING LAW; This Lease shall be governed by and construed in
26 accordance with the laws of the State of California. Any action concerning or arising out of
27 this Lease shall be filed in a court of the State of California having jurisdiction of the subject
28 matter, and venue shall be in the County of Los Angeles, State of California.
10
11/16/99 " •.^_8 FAX 626 330 5818 DAVID B BREARLEY 444 CITY CLERK U 002/002
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
subject matter hereof. This Lease may be executed in counterparts, each of which shall
constitute an original, but all of which shall constitute one document.
35. MODIFICATIONS: All amendments and/or modifications to this Lease shall be
effective only in writing signed by the parties hereto.
IN WITNESS WHEREOF, the parties hereto have caused this Lease to be executed
on the dates hereinafter respectively set forth.
DATE:
LE NIS C. MALBURG, Mayor
ATTEST;
H"A
APPROVED AS TO FORM:
Eduardo Oliva
City Attorney for the
CITY OF VERNON
0: 04
DATE:
APPROVED AS TO FORM:
Karen Potkul
Attorney for
NEXTLINK CALIFORNIA, INC.
agMCMW\n*J tent
ERUCE V. MALKENHORST, City Clerk
NEXTLINK CALIFORNIA, INC., a
Washington corporation
DWAYNE NIELSON, President
GEOR E VARELDZIS,
Chief Financial Officer
12
11/15/99 17:52 FAX 626 330 5818 DAVID B BREARLEY 444 CITY CLERK 10 013
EXHIBIT C
INSURANCE SCHEDULE (NESTLINX)
The Contractor shall provide proof of insurance, including a standard
certificate of insurance, in at least the following amounts and Coverage
(combined single limit permitted):
I. Coverage and Limits
Bodily Injury Property _Dam_a_cL
Hazards Each Person Each Accident Each Accident
Automobile Liability
Owned Automobiles $ 500,000 $1,000,000 $ 500,000
Hired Automobiles $ 500,000 $1,000,000 $ 500,000
Non -owned Automobiles S 500,000 51,000.000 $ 500,000
Workers'__Gommsation S Statutory
Employers I.1ability S1.000.000 ner emnlover
II. General Liability
Premises Operations $1,000,000 $2,o00,000 $1,000,000
Elevators
(if applicable) $1,000,000 $2,000,000 $1,000,000
independent
contractors $1,000,000 $2,0001000 $1,000,000
Contract+Liability S1,000.000 U,000,000 $1,000,000
Umbrella�Liability $1,000,000 $11000.000 $1,0001000
a. The general liability policy shall contain the following special
endorsements which shall be noted on or attached to the standard
certificate of insurance:
1. An endorsement naming the City of Vernon, its officers, and
employees as insureds under the policy.
2. An endorsement providing the city of vernon thirty (30) days
notice of cancellation or material reduction of coverage.
3. An endorsement providing coverage for all operations under City of
Vernon Contract number
4. Such other endorsement as may be required by addendum hereto.
b. In addition to the standard certificate of insurance,
and umbrella liability coverage shall be furnished in
below. Certification of the following proofs by the D
proof of general
the form checked
_x_ For each policy, a notarized letter from the underwriter Qr
carrier certifying that the coverage and statements in the
standard certificate of insurance (attached thereto) are true and
borrect and that the signature is an officer authorized to so
certify.
copy of each policy certified by an officer of the underwriter
or Carrier and notarized.
1,/
September 29, 1999l
TO: Bruce V. Malkenhorst, City Administrator
FROM: Kenneth J. DeDario, Director of Utilities
SUBJECT: Nextlink
We have reviewed Nextlink's submittal to attach fiber optics cable on city -owned poles
throughout the City as shown in the attached drawing. The Utilities Department does not
recommend approving this submittal for the following reasons.
1) The proposed construction route on E. Vernon Avenue between St. Charles
Place and Santa Fe Avenue conflicts with the City's existing communication
lines.
2) The proposed construction route on Santa Fe Avenue between Pacific Avenue
and Vernon Avenue conflicts with the City's existing communication lines.
3) The proposed construction path on the south side of Vernon Avenue between
Santa Fe and Soto Street conflicts with the Utilities Department construction
plan for 16 kV line extensions from the new Ybarra Substation.
4) The proposed construction route on Soto Street between Vernon Avenue and
44'h Avenue conflicts with the City's future plans for its communications
system.
5) The construction path on Alcoa Avenue conflicts with the City's existing
communication system.
6) The proposed construction path on Downey Road between Bandini and
District Blvd. conflicts with City's future plans for its communications
system.
7) The construction path on Leonis Blvd. conflicts with the existing electrical
power lines.
8) Nextlink's plan shows installation of 19 new anchors at various locations
nearby curb radii, water meters, and customers' driveways. Nextlink must
provide details showing actual location to meet construction standards by the
Community Services Department.
9) Nextlink proposes to install five down guys at various locations on existing
anchors on power poles. Nextlink must provide load calculations to verify
that the additional guying will not negatively impact the integrity of the pole
construction.
10)Nextlink proposes to install three new anchors and guy lines on the railroad
right of way to support poles on Downey Road. The proposed locations are
shown to land on the railroad's access road, which will impede the railroad's
operation.
I I)Nextlink proposed to attach to two steel poles on Downey Street. There are
no provisions for attaching communication lines to these poles.
12) Nextlink proposes to cross the Downey Road Bridge by attaching to the poles
on both ends of the bridge. Due to the length of the span of the wire between
poles, Nextlink must provide pole stress loading calculations to demonstrate
that the integrity of the poles will not be impacted.
The Utilities Department does not recommend approval of Nextlink's proposal as
submitted. In the future, should a revised Nextlink submittal be acceptable, and the City
and Nextlink enter into an agreement, Nextlink will bear all costs that are necessary to
modify or upgrade any poles to accommodate such attachments. These costs will be in
addition to a rental or lease fee, which is yet to be determined that will be charged for
each pole attachment. The Utilities Department is in the process of preparing the policy,
procedures, cost requirements, etc. for pole attachments by outside entities to be
submitted to City Council in the near future.
If you have any questions or comments, please contact me. Thank you.
KJD: dm
Attachment
SHEPPARD, MULLIN, RICHTER & HAMPTON LLP ,
A LIMITED LIABILITY PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS
ATTORNEYS AT LAW
FORTY-EIGHTH FLOOR
333 SOUTH HOPE STREET
LOS ANGELES, CALIFORNIA 90071-1448
WRITERS DIRECT LINE TELEPHONE (213) 620-1780 OUR FILE NUMBER
FACSIMILE (213) 620-1398
(213) 617-5420 WMY-66625
August 3, 1999
BY FEDERAL EXPRESS
Mr. Bruce V. Malkenhorst
City Clerk/City Administrator
City of Vernon
4305 Santa Fe Avenue
Vernon, California 90058
Re: Nextlink Permit Application
Dear Mr. Malkenhorst:
This firm represents Nextlink California LLC ("Nextlink"). In the course
of discussions with the City of Vernon Engineering Department, Nextlink's
engineering company, Arizona Pipeline Company, was presented with Resolution
No. 5088 of the City Council of the City of Vernon pertaining to a franchise fee
schedule and reportedly was told by the City Engineer, Mr. Abueg, that a franchise fee
would be assessed per Section 5 of the Resolution.
The City Staff may not be aware that Nextlink has been certificated by
the California Public Utilities Commission to provide local telecommunication
exchange services throughout the State and, as a telephone corporation, is not subject
to any "franchise fees".
This same issue arose last year in the City of Torrance and we presented
to the City Attorney a letter which describes the legal issues. As a result of our
discussions with the City Attorney and City Council in Torrance, they, as have
numerous other cities in California, agreed that franchise fees cannot be assessed under
these circumstances. I have enclosed a copy of our letter to the City of Torrance and
a copy of the City of Vernon Resolution for your information. I look forward to
discussing this issue with you.
LOS A N G E L E S .'■ ORANGE COUNTY E S A N 01 EGO .. ® S A N
F R A N C I S C O -
SHEPPARD, MULLIN, RICHTER & HAMPTON LLP
Mr. Bruce V. Malkenhorst
August 3, 1999
Page 2
Thank you very much for your attention to this matter.
Sincerely yours,
Robert H. Philibosian
for SHEPPARD, MULLIN, RICHTER & HAMPTON LLP
RHP/cw
Encl.
LA:LPA\LE'nWMY\70048799.1
cc: Karen M. Potkul, Esquire
Mr. Lee Arnold
SHEPPARD, MULLIN, RICHTER & HAMPTON LLP
A LIMITED LIABILITY PARTNERSHIP INCLUDING PROFCSSIONAL CORPORATIONS
ATTORNEYS AT LAW
FORTY-EIGHTH FLOOR
333 SOUTH HOPE STREET
LOS ANGELES, CALIFORNIA 90071-1448
WRITER'S OIRECT LINE TELEPHONE (213) 620-1780 OUR FILE NUMBER
(213) 617-5420
.FACSIMILE (213) 620-1398
August 5, 1998
VIA FACSIMILE AND FEDERAL EXPRESS
John L. Fellows III, City Attorney
Office of the City Attorney
City of Torrance
3031 Torrance Boulevard
Torrance, California 90503-5059
Re: Illegality of Franchise Fee Requirement Under
NEXTLINK's Proposed Encroachment Agreement
Dear Mr. Fellows:
This letter addresses several concerns that our client NEXTLINK
California, L.L.C. ("NEXTLINK") has about the legality of certain "franchise fee"
terms contained in the Encroachment Agreement proposed by the City of Torrance
("the City")
1. Background
As you are aware, NEXTLINK has been certificated by the California
Public Utilities Commission, and is authorized to provide local telecommunication
exchange services throughout the state. NEXTLINK is also a "telephone corporation"
qualified to do business as a regulated utility pursuant to California Public Utilities
Code Section 234. Consistent with its classification as a telephone corporation,
NEXTLINK desires to install and maintain communication lines and cables for the
purpose of providing telephone and additional related services to the City's residents
and business community.
L 0 S ANGELES ■ ORANGE COUNTY ■ S A N 0-1 EGO ■ S A N FRANCISCO
SHEPPARD, MULLIN, RICHTER & HAMPTON LLP
John L. Fellows .III, City Attorney
August 5, 1998
Page 2
Unfortunately, the Encroachment Agreement offered by the City appears
to be in violation of well -established state law prohibiting a municipality from requir-
ing that a telephone corporation obtain a franchise, or pay any franchise fees, to a
municipal government for the right to provide telecommunication services as well as in
violation of The Telecommunications Act of 1996. (See Cal. Pub. Util. Code § 7901
(formerly California Civil Code Section 536).) NEXTLINK does not contest the
validity of the City's request that the installation and maintenance of the communica-
tion lines infrastructure be borne at NEXTLINK's "sole cost and expense." (Encroach-
ment Agreement ("Agt."), ¶ 1.) However, the City's proposed Encroachment Agree-
ment still runs afoul of Public Utilities Code Section 7901 by requiring that
NEXTLINK "pay the City an annual fee of $2.00 per foot of aerial plant and $2.50 per
foot of underground plant ... for the encroachment of the Project so long as the
encroachment exists.iY (Agt., ¶ 1.)
This annual assessment is precisely the type of "franchise fee" that the
City is statutorily forbidden from exacting from a telephone corporation such as
NEXTLINK. NEXTUNK's right to provide telephone communication services
derives exclusively from the grant of a franchise from the State, and is therefore not a
municipal concern. Consequently, the City lacks authority to impose annual franchise
fees on NEXTLINK for the exercise of its rights under the. state -granted franchise.
Accordingly, NEXTLINK requests that the assessment of these annual tariffs be
removed from the Encroachment Agreement, and that NEXTLINK be permitted to
provide telecommunication services to the City and its residents without the imposition
of any such similar franchise fees.
2. Public Utilities Code Section 7901 Precludes the City From
Collecting Franchise Fees From NEXTLINK.
Public Utilities Code Section 7901 provides that telephone corporations
"may construct lines of ... telephone lines along and upon any public road or highway,
along or across any of the waters or lands within this State, and may erect poles, posts,
piers, or abutments for supporting the insulators, wires, and other necessary fixtures of
'-' The Encroachment Agreement also provides that the "fee, however, may be
increased, from time to time, by resolutions adopted by the City Council."
(Agt•, 11.)
SHEPPARD, MULLIN, RICHTER & HAMPTON LLP
John L. Fellows III, City Attorney
August 5, 1998
Page 3
their lines, in such manner and at such points as not to incommode the public use of the
road or highway or interrupt the navigation of the waters."
This statute operates as an offer by the State to telephone companies of
the right to install and preserve all necessary infrastructure for the provision of
telephone services throughout the State. (See Western Union Tel.. Co. v. Hopkins
(1911) 160 Cal. 106 (all rights related to implementation of a telephone franchise
originate from the State, leaving nothing to be granted by a municipality).) The offer
of a franchise is accepted by a telephone corporation through its construction and
maintenance of lines, and constitutes a binding contract based on adequate
consideration between the State and the telephone company.' (County of Los Angeles v.
Southern Calif. Tel. Co. (1948) 32 Cal.2d 378, appeal dism'd, 336 U.S. 92.)
California courts have consistently interpreted and applied Public
Utilities Code Section 7901 to prohibit municipal governments from extracting
franchise fees from telephone corporations in exchange for their use of public rights -
of -way.
The authority to grant a franchise to engage in the
telephone business resides in the state, and the city is
without power to require a telephone company to obtain
such a franchise unless the right to do so has been
delegated to it by the state. The business of supplying
people with telephone service is not a municipal affair; it is
a matter of statewide concern. ... We are unable to find
any constitutional or statutory provision conferring this
authority on the city.
(Pacific Tel. & Tel. Co. v. City of Los Angeles (1955) 44 Cal.2d 272, 279-80 (citations
omitted); see also Pacific Tel. & Tel. Co. v. City and County of San Francisco (1961)
197 Ca1.App.2d 133, 142.)
In this case, the annual $2.00 per foot for aerial lines, and $2.50 per foot
for subterranean lines, that the City proposes to collect from NEXTLINK violates
Public Utilities Code Section 7901. The inclusion of these or any other similar terms
in the Encroachment Agreement is an unlawful attempt,by the City to condition
SHEPPARD, MULLIN, RICHTER & HAMPTON LLP
John L. Fellows III, City Attorney
August 5, 1998
Page 4
NEXTLINK's state -guaranteed access to the City's public rights -of -way on its payment
of a yearly fee that the City is not empowered to collect.
Indeed, no other municipal entity with which NEXTLINK has negotiated
a contract to establish and maintain its telephone service infrastructure has asserted an
authority to collect franchise fees such as the one included in the City's proposed
Encroachment Agreement.' It is widely accepted by all local governments that an
attempt to exact such a fee in return for the municipality's permission to operate a
franchise within the its territory would stand in clear violation of well -settled
California law.
For these reasons, the City's proposed yearly levy on the aerial and
underground wires to be used by NEXTLINK should be excised from the
Encroachment Agreement.
3. Neither Public Utilities Code Section 7901.1, Nor the City's
Exercise of its Police Powers, Justify the Imposition of a
Franchise Fee on NEXTLINK's Telephone Service.
Public Utilities Code Section 7901.1, adopted by the California
Legislature in 1995, grants municipalities the "right to exercise reasonable control as to
the time, place, and manner in which roads, highways, and waterways are accessed;"
so long as such control is "reasonable," and "applied to all entities in an equivalent
manner." (Cal. Pub. Util. Code § 7901.1(a)-(b).)
v NEXTLINK has already negotiated the implementation terms'of its franchise
rights with over thirty municipal entities in the Los Angeles region alone,
including: Anaheim, Artesia, Bellfower, Bell Gardens, Beverly Hills, Buena
Park, Carson, Commerce, Compton, Costa Mesa, Culver City, Cypress,
Downey, East Los Angeles, Florence -Graham, Fullerton, Garden Grove,
Inglewood, Irvine, La Mirada, Lennox, Long Beach, Los Alamitos, Los
Angeles, Montebello, Norwalk, Santa Ana, Seal Beach, Signal Hill, Stanton,
Tustin, West Athens, West Carson, Westminster, and Willowbrook.
SHEPPARD, MULLIN, RICHTER & HAMPTON LLP
John L. Fellows III, City Attorney
August 5, 1998
Page 5
However, subsection (c) of the same statute expressly provides that
"[n]othing in this section shall add to or subtract from any existing authority with
respect to the imposition of fees by municipalities."
.In other words, Section 7901.1 evidences the Legislature's explicit intent
to recognize a distinction between, on one hand, a municipality's right to make laws
governing the time, place and manner of a telephone company's operations, and on the
other hand, a local government's lack of authority to impose on a telephone company a
separate franchise fee stemming solely from the exercise of its franchise rights.
Here, however, the City's attempt to collect an annual fee per foot of wire
is not a reasonable control of the time, place or manner in which NEXTLINK is
granted access to the City's roads, highways, and waterways. Under the Encroachment
Agreement, NEXTLINK is already required to pay for all construction and main-
tenance costs of its telephone infrastructure. (Agt., ¶ 1.) In addition, NEXTLINK is
obligated to obtain all necessary City permits, to comply with its Certificate of Public
Convenience and Necessity, to have all of its work performed under City standards,
and in certain circumstances, to pay for the costs and expenses of relocating its infra-
structure when necessary. (Agt., ¶¶ 2, 3 & 5.) The extra annual fee is not a reasonable
control of the time, place or manner in which NEXTLINK will have access to the
public rights -of -way.
Even more so, Section 790 1. 1 requires that any reasonable actions that a
municipality takes to control the time, place, and manner of a telephone company's
access to public rights -of -way be applied in a consistent fashion to all telephone
companies within the city's boundaries. Assuming, arguendo, that the City's proposed
fee per foot of wire is a reasonable control on NEXTLINK's access to the City's public
rights -of -way, this fee has not be assessed in a nondiscriminatory method. Current
telephone service providers (Pacific Bell and GTE California Inc.) in the City are not
subject to the same yearly assessment, and no legitimate reason can be provided for -.
why NEXTLINK should be discriminatorily treated in contrast to the incumbents.
The City's conduct is not competitively neutral and nondiscriminatory
and, therefore, constitutes a violation of Section 253(c) of The Telecommunications
Act of 1996.
SHEPPARD, MULLIN, RICHTER & HAMPTON LLP
John L. Fellows III, City Attorney
August 5, 1998
Page 6
Furthermore, the annual franchise fee cannot be justified by an appeal to
the City's general "police power" to regulate the use of its public rights -of -way. Such
an argument has already been flatly rejected by the California courts:
[The City] argues that because the city's power to regulate
the manner in which a telephone company may use the
city's streets derives from its "police power," the granting
of a franchise is likewise within the police power of the
city.
As pointed out by the United States Supreme Court in
Dakota Cent. Tel. Co. v. South Dakota, .. "police power"
has two meanings, "a comprehensive one embracing in
substance the whole field of state power to deal with the
health safety and morals of the people.
Where a corporation has a state franchise to use a city's
streets, the city derives its rights to regulate the particular
location and manner of installation of the franchise holder's
facilities from the narrower sense of the police power.
Thus, because of the state concern in communications, the
state has retained to itself the broader police power of
granting franchises, leaving to the municipalities the
narrower police power of controlling location and manner
of installation.
(Pacific Tel. & Tel. Co. v. City & County of San Francisco, supra, 197 Cal.App.2d at
152 (citations omitted).)
Because the City's annual per foot wire fee is not related to the location
and manner of NEXTLINK's installation of its telephone wires, the tax is not support-
able as an application of the City's narrowly -defined police powers.
4. Conclusion.
The City's proposed Encroachment Agreement contains a term requiring
that NEXTLINK pay a yearly fee to City of $2.00 per foot for aerial wires, and $2.50
SHEPPARD, MULLIN, RICHTER & HAMPTON LLP
John L. Fellows III, City Attorney
August 5, 1998
Page 7
per foot for underground wires. This annual tax is an unlawful franchise fee, which the
City is forbidden by California case law and statute from,, imposing. The franchise fee
cannot be justified as an exercise of the City's right to impose reasonable controls on
NEXTUNK's time, place or manner of installation of the wires, and therefore, this
franchise fee, and all other similar terms, should be withdrawn from the Encroachment
Agreement.
Thank you for considering this letter. Please call me if you have any
questions.
Very truly yours,
Robert H. Philibosian
RHP/cw
LA3:LPA\LET\003\21129693.1
cc: All Members of the City Council
Karen M. Potkul, Esquire
FIUM-PRJZONR PiPeL1N6 CIORONR 909 270 3101 1999,07-29 06,08 #436 P.16116
�
�
1s
19
20
21
22
23
24
25
28
27
28
RESOLUTION NO, 5Q88 SE. Re i98 - Zq9 .6
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF VERNON ESTABLISHING AND ADOPTING AN
ENMACk KENT FEE AND DEPOSIT SCHEDME .AND A
LICENSE AND FRANCHISE FEE SCHEDULE PURSUANT
T.O CWTER 22,-ARTICLE Vt OF THE CODE OF THE
CYTY OF VERNON—CALIFORNIA, CALIFORNIA, 1959 ,AND VVEALING
RESOLUTION NO_'4699
UHEPEAS, 'Chapter 22, Article VI of. the Code of the City
ofVernon, California, M9 specifies that the City Council of
the City of Vernon shall, ,from time to time, establish an .
encroachment fee and deposit schedule, a license a-nd franchise
fee schedule and skull set the amount of license and franchise
bonds and liability insurance.'
NOW., THER.EFQFX , ...BE IT RESOLVED BY THE CITY dQ' TNCI). OF,
'IRE CITY OF VERNON AS FCI,LOWS z
SECTION 1: T)�Lat' any 'and .all wort: performed by govern
Mantal agencies, utility companies an4 private contractors within
street sight-of-way,Ias well as closiltE'of traffic Manes, detourin
traffic or interfering with the mortal , parking .pattern or' the
Pedestrian use of the sidewalk, skull be.covered by a permit.
SECTION 2: That a permit issuance- fee, payable. prior_
to the issuance of a permit, shall be made in the amount of
Twenty Dollars ($26.00) ;
SECTION 3 ; That in addition. to are issuance fee, rartric
fees and charges calculated to the nearest dollar shall be
,required as follows:
A. Ii?SPECT.LON FEES
P.egulaz Time (7:00 a.m_ 5:30 p.m_) $ 20.00/ht_
Cvertime-Friday. Sa.curday, Sunday,
Kolidays.and nights (4 hrs. minimum) $ 50,00/hr_
FROM AMRIZOI`NR PIPELINE OORONR
909 270 3101 1199,07-29 06[QV4 9436 P.16/16
1
2
3
4
5
a
7
e
9'
l0
,11
1.2
13
14
15
is
17
is
19
20
21.
22
23
24
25
26
27
29
b , PERMIT FEES
Curb and/or gutter 0.25/li ft.
Paving, sidewalk, dxivek+ay $ 0.20/sq. ft,
FAof. Area'and Fire Sprinkler
drains ' ,through' curb (plus any
curb, gutter and sidewralk $ 15400 each
C, FECONSTRUCI'1DN FEES FOR WORK COMPLETED BY CITY
Rate Hinimum
Asphalt.pavemer%r $0,75/inch/sq. ft.' ''$'190.00
Concrete pavement
driveway , gutter. &
aidek•�tlks $0.75/inch/sq_ ft, $ 190.00
Concrete curb 56.50J1in, ft. $.190.00
Concrete curb A
gutter, $12.50,/lin, ft_ $ ,190.00
Asphalt,' concrete
soil removal $0.50/in.ch/sq_ ft.
D. Lights, barricades,' or warning devices furrii.shed and
or 'Maintained, calculated at One Hundred Dollars.
($100,00) per service call and one dollar and twenty-
five cents ($1.25) per barricade per day. A .servi.ce
call is defined. as one (1) round trip to and from
the. job site either for rlacing, removing " or
aervi cirg - the barricades.
E, Y,ONUMNT REPLACEnNT FEE $ .320,00
F. All other direct costs to the City resulting from
the perms tt6t s activity, calculated at actual cost
plus administrative costs of fifteen -percent
G. All pavement shall be replaced with an equivalent
section plus one inch (1") .
SECTION 4: That the following exemptions to
-2-
PFRBM QRI ZONA P i PEL, I NE CORONA
909 270 3101
1999,07-29 09+04 443M P.14s16
1
2
3
4
5
B
7
8
9
121
13
14
15
is
17
is
19
20
21
22
23
24
25
26
27
2.8
I Sections 2 and 3 shall apply:
A, Utility companies arLd governmental agencies making
application for a permit shall not be required to make prior
Faywent of issuance fees or make deposits. The preclusion of
deposits and prior payt,etit of fees, howsver, does not relieve a
utility company or governmental agency frow. making Prompt payment
of fees upon presentation. of a.City invoice. Contractors or
Qthears trakinz application on behalf of a utility company or
governmental agency shall not be relieved of the deposit re-
quirement-orprior paymeizt of fees.
I
8 The City of Vernon Water Department shall not be
reeui.red to pay permit fees ixtasmuch as costs for permit services
are accounted for internally for the City departments.
C. No inspection charges or permit fees shall be r:ade
for the inspection of the initial construction of new curb, gutter,
sidewalk and roadway.
D. No fees shall be charged.to governmental agencies
with reciprocal agreements.
SECTION 5,: That the -issuance fee for franchises and
licenses shall be as follows:
A. Fort, railroad crossings. conveyor bridges, tunnels
across a street, pipe lines or conduits along; a street, the
iasuattee fee shall be -Two Thousand Five Hundred Dollars ($2,500.00)
payable prior to the gra.n,tinr of the franchise or license and Lhe
annual reneva,l fee fox' all of the foregointr shall be a ninitnum of.
i
Two Hundred Fifty Dollars ($250.00) per mnnum, and in addition
thereto the annual fee for railroad tracks, pipelines or conduits
along a street shall, tie said Two Hundred Fifty Dollars ($250.00)
-3-
PPOM 1ARIZONR PIPELINE CORONA 909 270 3101 1JJ9,07-29 M1 03 #439 P,13/;e
1 for the mtnir..um annual renewal fee fox the.length of line up to
2 otne-half (1/2) mile and thereafter Two Hundred Fifty Dollars
3 ($250.00) for each additional one-half (1/2) mile and to the
4 extent that.the same' cannot be measured in, equal one-half (1/2)
5 mile segments the last portion thOreof shaU be prorated based
a upon the length of said pipe lines or conduits along a street
as the same shall bear to Two Hundred Fifty Dollars ($250.00)
for each one-half (1/2), mile. `•
9 B. For pipe lines or conduits across a street or a
10 Teetering ranhole in the' street, the sum of CYIe Thousand Two
'11 Hundred Fifty Dollars ($1,250.00) for an issµence fee, payable
12 prior to the granting of Cite: 7licensa, and an annual renewal fee
13 of One, Hundred 'w`r riEy-Five Dollars ($125.00) per annum.
14 C. For building footings and appendages, such &A
10 Water tables, sills, capitals, ®ignp� and -architectural proje Orions,
lg an issumn.ce fee of Two Hundred Fifty 'Dollars ($250.00) , payable
17 prior to the granting of the license,. and an atlnual renewal fee
is of Twenty -Five Dollars ($25,00) per.anvxum-
lg SECTION 6: That the policy of policies .of .public lia-
80 bili,ty abd property damage insurance shall be in are amount
21 determined by the -Director of Community Services of the City
22 of Vernon and approved by the City Attorney of the. -City of
23 Vernon, prior tQ the issuance of each franchise or license,
24 SECTION 7: That any policy or policies of public
25 liability and property damage insurance shall name the City of
26 Vernon as a to -insured, and shall further provide that said policy
27 of policies may not be cancelled vithout giving the City of Vernon
28 at least tan (10) days+w'Sritcen notice of the insurer's intention
�4-
FROM jARIZONA PIPELINE CORONR
1
2
3
4
6
6
7
s
9
ip.
12
13
14
15
�16
171
18
19
20
21
22
23
24
25
26
27
28
909 270 3101 1999,07-29 06103 9438 P.12/15
r`
to so cancel' said policy or policies.
SECTION 8. That the. faithful performance bond payable
co the City of Vernon shall be in an 'amount determined by the
Director of, Co=unity SeZ•vices upon the issuance of each franchise
or license and the sire shall be. approved by the. City Attorney.
SECTION a : That in addition to the above. the franchise
or licensee shall pay all fees'and deposits necessary to obtain
the required encroachment perwits.
SECTION 10: A. That the aunuol renewal fee provided
for in Section 5 above should be revised in accordance with the
thanges in the Consumer Price Index published'by the united States
Department of Labor. Bureau of Labor Statistics for Vr'baft Wage
Eazt►exs and Clerical Workers - Annual Average -Los Angeles - Long
Beach Metropolitan Area California - ali items. In the event
said Index as of t1ir, anniversary date 'is °bigheY than said Index
for the issuance date, each such issuance fee or renewal fee shall
be � ncreased e.ffecti,ve the anniversary date by ;multiplyi.i�g each
said issuance fee'by a fraction, the numerator of which is the
Index for the' current anniversary- date and the denominator of
which is the Inde% existing on the issuance date. `There shall be
no reduction in fees by-operatian of this provision-
B. If, in the future, said Index shall be changed so
that the base year differs from that used as -of the date of the
coerm,encement of the term hereof, it shall be converted in accor-
dance with the -conversion factor published by the United States
Department of Labor, Bureau of Labor Statistics, In the event
said Index is discontinued, or revised during the tern! of this
Agreement, such other governmental Index or corputa.tion with
-5-
PkUM :PRIZONR PIPELINE 00RONF 90e 270 320Z 1999,07-29 0810W #435 P.11/'19
1 which it is replaced, shall be used in order to obtain substantial-
2 ly the same reaulc Ghat would be obtained if ;4id present 2n.dax
had not been diseontiilued or revised.
4 SECTTON. 11: That Resolution No. 4699 and all, other
5 resolutions in,conflict herewith are hereby repealed.
6 SECTION 1.2; That the City Clerk of the City of Vernon
7 shall certify to the passage of this resolution and thereupon
g and thaxg'after the same, shall 'be in full force and effect.
9 APFXOVED MD ADOPTED this
10
.A ,. a ayor
NIS12
13
14 ATTtST,
16
16 L'City C or
17
18
19
20
21
22
23
24
25
26
27
28
-6,
i
CITY COUNCIL
LEONIS C. MALBURG
Mayor
THOMAS A. YBARRA
Mayor Pro-Tem
Wm. "BILL" DAVIS
Councilman
H. "LARRY" GONZALES
Councilman
W. MICHAEL McCORMICK
Councilman
BRUCE V. MALKENHORST
City Administrator / City Clerk
FAX (323) 581-7924
DAVID B. BREARLEY
City Attorney
FAX: (626) 330-5818
KEVIN WILSON
Director of Community Services & Water
FAX: (323) 588-2761
CITY HALL
4305 SANTA FE AVENUE, VERNON, CALIFORNIA 90058
TELEPHONE (323) 583-8811
November 18, 1999
Ms. Gloria Orosco
Chief Deputy City Administrator
City of Vernon
4305 Santa Fe Avenue
Vernon, CA 90058-0805
KENNETH J. DeDARIO
Director of Municipal Utilities
FAX: (323) 583-1983
DAVE TELFORD
Fire Chief
FAX: (323) 581-1385
BRUCE W. OLSON
Police Chief
FAX: (323) 583-5236
Eduardo Olivo (626) 336-3408
A0M,N, D
-Clry STRq
OP o/V OPP,
F
Re: Pole Attachment Lease Agreement between Nextlink, Inc.
and City of Vernon
Dear Gloria:
Nextlink,Inc. has requested that it be allowed to attach certain fiber optic lines
to the City's utility poles. The City has negotiated a Lease Agreement which has been
forwarded to the City Administrator's office and executed by Nextlink; a copy of the
executed agreement is enclosed. I hereby request that the Lease Agreement be placed on the
City Council agenda for November 23, 1999, for consideration by the City Council.
If you have any questions, please call me.
Ver truly yours,
Eduardo Olivo
City Attorney for
the City of Vernon
Enclosure
EO/cb
vam .N--p\gbra.-
Nw,-16-99 01:57pm
1
2
3
4
5
6'
7
81
9
10
11
12
13
14
15
16
17
18
19
20
211
22
23
24
25
26
27
28
From-NEXTU NK +99gg9gg999 T-529 P.02/14 F-709
EXEC QbT COPV PM
b�
LE LEA E
This UTILITY POLE LEASE AGREEUMNT ("Lease") is entered into as of the tJo
j day of November, 1999,
I BY AND BETWEEN:
CITY OF VERNON
a munici al corporation
(hereinaZ referred to as "City")
4305 Santa Fe Avenue
Vernon, CA 90058-0805
NFX IXNK CALIFORNIA, INC.
a Washington corporation
(hereinafter referred to as „ ")
1924 Deere Avenue
Santa Ana, CA 92705
WHMAS, City owns and operates certain utility poles located in the CITY, which
are more particularly described in Exhibit A ("-Utility Poles"); and
WHEREAS, NEXTLTNK desires to install and maintaia telecommunications facilities
("NEXTLINK's Facilities") an such Utility Poles; and
WAS, NEXTIJNK desires to lease space on the Utility Poles in order to plane
and maintain 's Facilities on such Utility Poles, and City has agreed to lease,
under the conditions set forth below, space on the Utility Poles for the placement of
NEXTLINK's Facilities;
NOW, THEREFORE, in consideration of the foregoing and of the mutual coveaumts
provided in this Lease, the parties agree as follows:
1. Subject to the provisions of this Lease, City hereby leases to NEXM NK, and
NEXILINK hereby leases from City, a portion of the space within the communications
grade of the Utility Poles for the placement of NP,XTI,INX's Facilities. This Lease shall be
non-exclusive and is subject to existing leases by the City of space on the Utility Poles which
are the subject of this Lease,
2. No use of the Utility Poles by NEXTLI K or payment of any rent or other
charges required under this Lease shall create or vest in NEXTLINK any easements or other
Nov-18-99 01:58pm From-NEXTLINK +ggg99g9999 T-529 P.03/14 F-709
I ownership of property rights of any nature in the Utility Pales other than the xights granted
2 under this Tease. Furthermore, this Lease shall not constitute an assignment of any of City's
3 rights to use the publie or private property upon which the Utility Poles are located.
4 3. 7'he purpose of this Lase is to facilitate installation of fiber optic cable, which
51 shalt only be used by NEXTLINK to carry telecommunications traffic for the benefit of
6 NEXTLM and its customers. Any attachments to Utility Poles required by NFXTI.Il in
7 connection with such installation shall be made pursuant to written requests submitted by
8 1 EXrUINK to City in a form designated and provided by City, Prior to installation of
9 NEX"T'i,INK's Fazilitics, NLX'TLINX shall notify City of such intended installation and shall
10 obtain all permits and approvals required by all applicable public and private authorities for
11 such installation_ In performing such installation, NEXTLINK (i) shall not attach (whether
12 by overlash or otherwise) more than two (2) cables to any single attachment made by
13 NEXTLINK to a given Utility Pole, (ii) shall improve existing comraw cation grade down
14 guys and grounding for all Class City circuits on the Utility Poles (all at the sole cost and
15 expense of NEXTLINK) to the extent necessary to comply with current applicable public
16 utility industry standards, and (iii) shall not, with respect to Utility Poles solely owned by
17 City, and/or joint poles where City is the base owner install any facilities which are
18 incompatible with City's or joint users' use of the Utility Poles, with the nature and extent of
19 any such incompatibility to be determined by City in City's sole, good -faith discretion.
20 4. Neither City's right to maintain the Utility Poles nor its right to operate its
21 facilities in such a. manner as to best enable it to fulfill its own service requirements will be
22 in any manner limited by this Lease.
23 S. Nothing rnnrAinmi in thin T ear, ahall het rnncmvii (i) to rrnmIlei city to rnn.Ct"Jrt,
24 reconstruct, retain, cxt=d, place or maintain its Utility Poles for use by NEXTTINK unless
25 needed for City's own service requirements, or (R) as a limitation against City with respect
26 to any previous agreement by Ciry or any agreement which it may in the future enter into
27 with other parties; however, City agrees that City or such other paxd,es shall not
Am-
28 unreasonably interfere wft NEXTLINK's rights under this Lease.
Nov-16-99 01:59pm From-NEXTL►NK
+9999999999 T-529 P.04/14 F-709
11
3i
4
J
6
7
8
9
10
11
12
13
14
1s
16
17
18
19
20
21
22
23
24
25
26
27
28
6. The provisions of this Lease are subject to, and the patties shall at all times
observe and comply with, all laws, ordinances and regulations, including City's charter, and
all City ordinances of general applicability which affect the patties' .rights and obligations
under this Lease.
Irani pr LBRSL
7. This Lease shall be for an initial term of ten (10) years, beginning on the
effective date as set forth herein (the "Effective Date") and shall continue in effect until
expiration of such term unless it is earlier terminated as provided in this Tease or by
operation of law.
RELOCATION
S. City reserves the sight to remove, reconstruct, alter, reconfigure or relocate any
Utility PoIc as City may elect in its sole discretion, and City shall immediately notify
NEXTLTNK if such actions are proposed. In the event City Elects to tft any such action
without eliminating CiTy's above -ground utility diWibution network within the immediate
vicinity of Utility Poles, NEXTLINK shall either (i) remove NEXTLINK's facilities and
relocate them (at NEXTLINK's sole cost and expense) to other above -ground facilities (it
being understood, however, that if any third party pays all or any part of the costs of
relocating the parties' respective facilities, NEXTLINK will be paid an equitable portion of
such payment) or (ii) elect to terminate this Tease, with the understanding that any such
mrnm z ti.on shall not be effective until NF.XTLINK is afforded reasonable time to relocate its
r4&;Itluv2j. If, 1wwcvm, City cicc:w w icinuvc dic TJLLIILy Pines ciLLUcly duul cusutuuw duly
above -ground utility distribution network whin the immediate vicinity of the Utility Poles,
this Lease shall terminate after NLX MINK has been given reasonable time not to exceed
180 days to relocate its facilities (as may be specified by applicable City ordinance).
CONSTRUCIrQIy AND._MAIN IENANCE
9. Prior to installation of NEXTIINK's Facilities, NEX"TLINK shall provide to City
a copy of its construction drawings (including any excess cable storage requirements) and
installation schedule for City's approval. Approval of the drawings, cable storage
Nov-16-99 01:59pm From-NEXTLINK
+9099999999 T-520 P.05/14 F-709
1 requirements and schedule shall be coordinated with City's Utilities Department and/or the
2 City's Community Services Department, In the event City determines that rearmgemcat of
3 tho existing facilities on the Utility Poles is required before NEXTLINK's Facilities can be
4 accommodated, City will advise NEXTLINK in writing of the estimated mako-ready charges
5 (including investigation, design and engineering fees) for such rearrangement work; if
6 NFXII DM requires City to perform engi =ing services on a rush basis, NFXTLDqK shall
7 compensate City for said services at a rate to be agreed upon by the parties, NEXTI NK
8 shall pay City within thirty (30) days from its receipt of City's invoice for such charges.
9 10. NEXT= shall, at its own expense, during the term of this Lase, install and
10 maintain NEXTLINK's Facilities in a safe condition reasonably acceptable to City so as not
11 to conflict or interfere with the facilities placed by City or others. NEXMI K's Facilities
12 shall be placed and maintained in accordance with the requirements and specification set
13 forth in Exhibit B. In connection with the foregoing, it is anticipated that each party may,
14 from time to time, conduct field audits in order to update databases of pole records. The
15 pasties agree to cooperate in sharing results of such audits_
16 11. In the event of an emergency:
17 (a) CITY EMERGENCY -
1$ (1) City's work shall take precedence over any operations on the Utility
19 Poles;
20 (2) NEXTLINK shall immediately notify City's Utilities Department of any
21 emergency situation related to the Utility Poles or IVEXTLDM's Facilities.
22 (b) NEXTI NK E ORG—ENC'Y -
23 City shall i,mnmedi4tely notify NEXTLINK at its Technical Affiliate, Plano,
24 Texas (Phone No. (888) 639-8522) of any emergency situation related to the Utility Poles or
25 NEXTLMK's Facilities,
26 12. If any part of NEXTLINK's Facilities are not placed and maintained in
27 accordance with the terms and conditions of this Lease and NEXTLINK has not corrected the
2$ violation within thirty (30) days after receipt of a written notice from City, then City may, at
4
Nov-16-99 02:00pm From-NEXTLINK
+9999999999 T-529 P-06/14 F-709
1 its option, correct the condition and notify NEXTLINX in writing prior to performing such
2 work. However, in the event such conditions pose an immediate threat to the physical -
3 integrity of City's facilities, to surrounding property, or the health or safety of the public,
4 City may perform such work and take any action that is reasonably necessary without first
5 giving written notice to N&VrLIIVK. As soon as practicable thereafter, City will advise in
6 writing of the work performed or the action taken. NEXTLLNK shall be responsible for all
7 expenses incurred. by City associated with any work or action performed by City pursuant to
8 this Section and shall reimburse City within thirty (30) days from its receipt of City's
9 invoice.
10 13. City reserves the right to make periodic inspections of any part of NEXTLINK's
11 Facilities; provided, however, that NEXTLiNK shall have the Tight to have one; or more of
12 its employees or representatives present during any such inspection, City shall, gyve
13 NFXTTM advance wrinca notice of such inspections, except in those instances where, in
14 the judgment of City, safety considerations justify the need for such an inspection without the
15 delay of providing written notice (in which event telephonic notice shall be provided instead).
16 Malting periodic inspections or the failure to do so shall not impose upon City any liability
17 nor relieve NEX^I'I,M of any responsibility, obligations or liability assumed under this
18 Lease.
19�
20 14. (a) The annual rent required to be paid by NBXTLINK shall be equal to the
21 sum of (i) Twenty Five Dollars ($25.00) multiplied by the number of NEXTL,]NX
22 attachments made to the Utility Poles, plo (ii) Twelve Dollars and Fifty Cents ($12.50)
23 multiplied by the number of attachments to City pole anchors installed by NEXTLINK in
74 cannecrian with this Lease. rn addition, the amounts in clauses (i) and (ii) of the precadin$
25 sentenco shall be increased annually based upon the increase which appears in the Consumer
26 Prue Index (CPI), All Items, Base 1982-84 Index, as published by the United States
27 Departmmt of Labor, Bureau of Labor Statistics for all Urban Consumers in the Los
28 Angeles -Anaheim -Riverside Metropolitan Statistical Area since the preceding CPI. Annual
5
Nov-16-99 02:00pm From-NEXTLINK
+9999999999 T-529 P.07/14 F-709
1 rent shall be due and payable annually in advwce upon each anniversary of the Effective
2 Date occurring during the base until the Lcase has terminated or expired.
3 (b) Most Favored Nation Clause: Notwithstanding the language of subsection
4 (a), should NEMINK, after the Effective Date of this Lease, enter into a similar lease or
5 agreement with another municipality, public utility or publicly owned utility, which lease or
6 agreement contains financial benefits for such municipality, public utility or publicly owned
7 utility, which are superior to those in this Lease, the Lease shall be modified to incorporate
8 the same or substantially similar superior benefits. Conversely, if City provides another
9 public utility with a lease rate which is lower than the sate being paid by NMLINK
10 pursuant to this Lease, City shah make the same or a comparable =to, available to
11 NEXTLINK.
12 Further, notwithstanding the language of subsection (a), should City determine
13 that reasonable compensation for the installation of NEXTUNK's Faealities on City Utility
14 Poles is higher than the rental charge established in this Lease, on 180 days written notice by
15 City, the Lease shall be modified to incorporate such reasonable compensation terms. The
16 City's determination of such reasonable compensation shall be based upon any of the
17 following;
l8 1. The highest compensation rate being paid by any other public utility to any
19 other municipality, public utility or publicly owned utility, under a similar lease or
20 agreement;
21 2. The highest compensation rate offered to City by any other public utility for
22 installation of similar facilities on City utility poles; or
23 3. The establishment of such compensation rate by applicable law or regulation.
24 (c) In the event City shall tenninare this Lrzw before the expiration for any year
25 for which the rental has been. paid, City shall refund to NEXTLINK the charge for rental for
26 the unexpired portion of such year.
27 ll1
28 III
2
Nov716-99 02:01pm From-NEXTLINK
+9999999999 T-529 P.08/14 F-709
1 MEE& C_E
2 15, Without limiting City's right to indemnification, NEXTUNK shall, at its own
3 expense, maintain throughout the term of this Lease, insurance coverage as follows (which
4 requirements may be revised by City's Risk Manager, if requested by NEXTLINK and if she
5 determines such revision is in City's best interest):
6 (a) NEXTLINK agrees to provide insurance in the amounts and forms speeii'ied
7 in Exhibit "C", which is attached hereto and made a part hc=f by reference. Comparable
8 coverage shall be provided for each subcontractor used in the performance of this Tease,
9 NEXTUNK shall, submit to City, documentation indicating compliance with these minimum
10 requirements no less than one (1) day prior to the beginning of this I.ease. This Lease shall
11 not become effective until the above insurance has been obtained and proof of insurance has
12 been filed with and approved by City.
13 (b) In addition to any other remedies City may have, if NEXTLINK fails to
14 provide or maintain any ins=ce policies or policy endorsements to the extent and within
15 the time hercin required, City may, at its sole option, terminate this Lease; provided,
16 however, =urination of this Lease is an alternative to other remedies City may have, and is
17 not the exsAusive- remmly Ror any sueli Cmilure_ NAilhiTIZ in thin Trace ch;;i1 he. rnnxmimi s+a
18 limiting in any way the extent to which NEXTLINK may be held responsible for payments of
19 damages to pcltsons or property resulting from the acts, omissions, operations or activities of
20 N XTIMIK or any agent, representative or employee of any contractor or subcontractor of
21 NFXTT.TI`TR.
22 RUEASE AND INDEMNITIES
23 16_ NEXTZYNK hereby agrees to indemnity, defend, and hold harmless City
24 (including its officers and employees) from and against any and all claims, demands,
25 expenses, damages, judgments, defense costs, or liability of any land or nature (including
26 actions brought against City by the employees or dependents, heirs, assigns or survivors of
27 such employms of NEXT INK or NEXTT NK's agents, mpresc ativos, customers,
28 contmOors, or subcontractors) presented against City arising out of or in connection with
Nov-16-99 02:02pm From-NEXTLINK
+9999999999 T-529 P.09/14 F-709
l NW T .WK's (including its employees, agents, representatives, contractors, and
0) mfWnntmrrnrq) rwrfnrmanri% nr wnrlt nnelor this T pace, or nthemi.se related to NEXTUNK's
3 placement of egpipatent on City's property, excluding only such habiliry actions as have been
4 determined, by a court of competent jurisdiction, to have arisen out of the We negligee of
5 City,
6 17_ The indemnifiratinn ohligatinns in SecAon 15 shall survive. the termination of this
7 lease,
8 18. NEXTLINK hereby releases City from any liability for damage, including
9 without limitation, all consequential. damages of any kind or nature, to any of NPXMI K's
101 property associated with this Lease.
11 '... 'FR1u1INAITObI
12 19. NEXTLINK shall have the right to terminate this Lease at any time during the
13 Least: term, provided that (i) any such termination shall become effective on a day which is
14 immediately prior to an anniversary of the Effective Date, and (R) NFXMINK provides
15 written notice of such termination to City at least ninety (90) days prior to the intended
16 effective date of such termination,
17 20. Notwithstanding the provisions of Section 19 hereof, if at any time NEX'1Z =
18 fails or refuses to perform any of the covenants or conditions contained in. this 1~ease, and
19 such failure or r4i- al shall, continue for thirty (30) days after receipt of written notice by
20 NEXTLM from City, then City, at its election and upon ten (10) days additional. advance
21 written notice to NEXTLWK, may terminate this L=se. Notwithstanding the foregoing
?7 v*ntonc o, if WPXTLUQX's ef£oxt to cure bef5iinc within thirty (30) CIM3,0, and ),,MI Mjz.TY_
23 diligently pursues such cure to completion and if, despite such diligent effoTts, NEXTUNK
24 is unable to cure within thirty (30) days, then NEXTUNK's right to cure shall be extended
25 beyond thirty (30) days for so long as NEXTLINK diligently proceeds to do so.
26 21. Uvon exviratiozn or termination of this Zease for anv rmmn, NEXTI TNTC shall
27 remove NFMLINK's Facilities within thirty (30) days. In the event NEX3'I.fNK fails to
28 remove NF.XT:t.M's Facilitics within sueh thirty (30) day period, thq shall be deamed.
8
Nov-16-99 02:02pm From-NEXTLINK
+9999999999 T-529 P.10/14 F-709
III
5
6�
7
8
9
10
11
12
13
14
15
16:
171
18
19
20
21
22
23
24
25
26
27
28
abandoned and City, at its sole discretion and without liability, may remove them and
NEXTLINK sloall reimburse City for all costs associated with such removal.
22, Termination or expiration of this Lease shall not affect liabilities and obligations
incurred by either party prior to the effective date of such termination or expiration.
ASSIGNMENT
23, With respect to the fiber optic cables to be installed as pan of NEXMINK's
Facilities, NEXTLINK shall not assign or otherwise convey any of its rights, obligations or
hLW4CbL1% UJ11aCi llua IradO iu Wid W $1401 Cabl", wiLiluuc d"r Priui wti LW'L wiisrom u,C C%Ry,
which consent shall not be unreasonably withheld or delayed; provided, however, that
without such consent, NEXTLINK may assign all of its rights, obligations and interests to
any parent or majority -owned subsidiary of NEXTLINK, or any successor entity of
NRX'I'i U4K (whether by merger, consolidation or We of all or substantially all of the assets
of NEXTLINK or otherwise) provided such assignee assumes all of the obligations of
NEXTLINK under this Lease. The foregoing restriction on assignment staall not be
consented to prevent NEXTLINK from malting available to its customers transmission
capacity within such fiber optic cables. ...
NOTICES
24. Any notice required by this Lease shall be made by (i) facsimile, confirmed by
certified mail, return receipt requested, (ii) in writing by certified niail, return receipt
requested, or (iii) delivered in pelon or by overnight delivery, to the parties at the following
addresses:
CITY CITY OF VF"ON
City Administrator
4505 Santa Fe Avenue
Vernon, CA 90058-0805
Telephone: (323) $83-8811
Telecopy; (323) 595-4661
With a copy to: CITY 01; VEMON
Director of Utilities Department
4305 Santa Pe Avenue
Vernon, CA 90058-0805
Telephone. (323) 583-8811
Telecopy: (323) 585-4661
Nov-16-99 OZ:03pm From—NEXTU NK
+9999999999 T-529 P.11/14 F-709
1 NP.X'IT.INK NEXT= CALIFORNIA, INC.
1924 Deere Avenue, Suite 110
2 Santa. Ana, CA 92705
Attention: Lee Arnold
3 Telephone: (949) 417-7762
Telecopy: (949) 411-7730
4
With a copy to: NEXTL NK CALIFORNIA, INC.
5 1924 Deere Avenue
Santa Ana, CA 92705
6 Attention: Karen Potkal
Telephone: (949) 417-7766
7 Telecopy: (949) 417-7377
S If either party changes its address during the term of cliffs Lease, it shall so advise the
9 other party in writing, and all subsequent notices shall be sent to the new address.
10 i��SPUTES
11 25, (a) If any dispute or claim arises out of the interpretation, performance, or
12 breach of this Lease, the parties agree that upon the written demand of either party, they .will
13 mmt within two (2) weeks of such demand to attempt in good faith to resolve the dispute.
14 That meeting wM be attended by zepresenta6ves of both parties having the authority to
15 resolve the dispute.
16 (b) with the exception of actions for injunctive relief, or which must be filed to
17 preserve a patty's rights, the parties agree to conduct the meeting described above before
18 either party may commence an action in any court of lawn, concerning the disputes or claims
19 arising out of this Lease.
20 GENERAL PROi+7_ IONS
21 26. LIENS AND ENCUMBRANCES: NEXTLINK small not create, or allow to be
22 creaW, any lien or encumbrance, including, without limitation, tax liens, mechanic's liens,
23 or other liens or encumbrances with respect to work pedormcd or equipment ftun shed, in
24 connection with the installation, repair, maintenance or operation of NF,XTLINK°s Faeilitim.
25 27. GOVERNING LAW: This Lease shall be governed by and construed in
26 accordance with the laws of the State of California. Any action concerning or arising out of
27 this Leaw shall be filed in a court of the State of CaliforaWhaving jurisdiction of the subject
28 matter, and venue shall be in the County of Los Angeles, State of California.
10
Nov-16-99 02:03pm From-NEXTU NK
+9999999999 T-529 P.12/14 F-709
1 28. NP=L= agrees to maintain an agent for service of process in California.
2 during the entice term of this Lease. NEXTLINX hereby designates Network Construction
3 Manager at its Los Angeles Office as its local agent for service of process in any legal acdoa
4 or proceeding that may arise out of or in connection with this Lease, NEXTY.M may
5 modify this designation by written notice to City in the manner required herein.
6 29.. SEVERABlUTX: In the event that any one or more of the clauses, covenants or
7 provisions contained in this Lase should be held to be unenforceable under any Federal,,
8 State or City law, statute, code, administrative or regulatory rule, such invalidity or
9 unc-nforceability shall not affect the remainder of this Lease, which shall remain in full force
10 and effect..
11 30. BINDING EFFECT: This Lease shall be binding upon, and shall inure to the
12 benefit of the parties and their mspective successors and assigns.
13 31. WAIVER: The waiver by City of any breach of any term, covenant or condition
14 in this Lease shall not be deemed to be a waiver of such term, covenant or condition of aAy
15 subsequent breach of the same or any other term, covenant or condition in this Lease.
16 32, CONFLICTS: In the event of a conflict between the terms of this Um and the
17 t=ns of she Southern California Joint Pole Agreement which pertains to joint poles, of
19 which City is the base owner, the terms of this Vase shall control,
19 33. EPFECTIVE DATE: The Effective Date of this Lease shall be the latest date of
20 execution hewinaftes set forth opposite the names of the signators hereto. In the event
21 NEXTUNY. fails to set forth a date of execution opposite the name(s) of NEXTLINK's
22 signator(s), NF.XTUNK hereby authorizes City, by and through its representative, to insert
23 the date of execution by NEXTUNK's signato*) as the date said Lease, as executed by
24 NEXTLU4K, is received by City.
25 34. ENTIRE AGREEMENT: This Lease constitutes the full understanding the
26 parties hereto with respect to the subject matter hereof, and supersedes any and all prior y
27 understandings, communications or agreements, whether written or oral, with respect to the
28
11
Nov-16-99 02:04pm From-NEXTLINK
Nov-i6-99 II;22am From-NEXTU M
+9999999999 T-529 P.13/14 F-709
+Be9R69A99e T-629 P.OZ/02 F-bee
i
a
9
4
3
6
7Q
w
12
13
14
is
16
17
is
19
24
21
az
23
24
2s
216
27
z®
o ftmMdW houlf.
M& 71=&y bemumaWig monugp^ +v&
maw QdgW, but all d *VA dwa =sdmb cme dommelL .
36, UOMBWA' `- All sunendmrntm andhr vendif+aai W M thin TMAR 21+nR bn
hobo awy in wring Anoi by ft Pis hcM-
on the d� 51�a� Rapactively sat l4mb,
loiduc Cava
f"
DAB
. w.
R 40�0AVOLO
A5
c,'►r.�o�u, aiTC,
CAI aMA,
casQorBlio4
Nov-1B-99 02:04pm From-NEXTU NK +9999999999 T-529 P.14/14 F-709
MXOTIZZ--c
INSUVMCE $C=DIII,1ti (NEXTLIr X)
The contractor shall provide proof of insurance, including a standard
certificate of insurance, in at least the following amounts and coverage
(combined single li=ait Permitted):
I, Coverage and „Diaits
Bodily Inlury, property pama-ee
Hazards Each Person Each Accident Each Accident
Automobile Liability
owned Automobiles $ 500,000 $1,000,000 $ 5000000
Hired Automobiles $ 500,000 $1,000,000 $ 5000000
11. General Liability
Premises operations $1,000,000 $2,000,000 $1,000,000
Elavatoss
(if applicable) $1,000,000 $2,000,000 $1,0000000
Independent
Contractors $1,000,000 $2,000,000 $1,000f000
a. The general liability policy shall contain the following special
endorsements which shall be noted on or attached to the standard
certificate of insurance.,
1. An endorsement naming the City of Vernon, its officers, and
employees as insureds under the policy.
2 - An C•:rd rrrP.!mATtt prnvi d i ng thn ri ty of VPrnnn 4.h i rty (1 n) Aay%x
notice of cancellation or material reduction of coverage_
3. An endorsement providing coverage for all operations under City of
Vernon Contract nu -tuber
4. such other endorsement as may be required by addendum hereto.
b. In addition to the standard certificate of insurance, proof of general
and umbrella liability coverage shall be furnished in the form checked
below. Cgrti ti cation of the following Rroofs by tie insurance agent or
b=}' will not be accgpte_d
x For each policy, a notarized letter from the underwriter or
carrier certifying that the coverage and statements in the
standard certificate of insurance (attached they®to) are true and
correct and that the signature is an officer authorized to so
certify.
A copy of each policy certified by an officer of the underwriter
or carrier and notarized.