HomeMy WebLinkAbout07 COMMUNICATIONS SITE LICENSE AGREEMENT~ AGENDA REPORT Agenda Item 7
Reviewed:
Finance Director
MEETING DATE: FEBRUARY 1, 2011
TO: HONORABLE MAYOR AND COUNCIL MEMBERS
VIA: DAVID C. BIGGS, CITY MANAGER
FROM: CHRISTINE SHINGLETON, ASSISTANT CITY MANAGER
SUBJECT: COMMUNICATIONS SITE LICENSE AGREEMENT WITH MetroPCS
NETWORKS CALIFORNIA, LLC FOR EXISTING WIRELESS FACILITIES
AT TUSTIN SPORTS PARK (12850 ROBINSON DRIVE)
SUMMARY
Approval is requested for a Communication Site License Agreement between the City and
MetroPCS Networks California, LLC (Licensee), to be located within the Tustin Sports
Park.
RECOMMENDATION
It is recommended that the City Council authorize the City Manager to execute the
attached Communications Site License Agreement with MetroPCS Networks California,
LLC, a Delaware limited liability company, subject to any non-substantive modifications as
may be deemed necessary by the City Attorney prior to execution of the Agreement.
FISCAL IMPACT
Under the proposed agreement the Licensee will pay $28,800 per year ($2,400 per month)
for the right to locate base facilities and an antenna on a newly installed light standard.
This rate is competitive with market rents for similar types of carriers providing voice and
data services. Under the proposed license, the initial term is ten (10) years commencing
and terminating in 2021. License payments will be escalated annually at a rate of 4.00%.
Over the initial term of the proposed agreement the Licensee will pay $345,776, the City
will receive 75% or $259,332. The City will retain 75% of the rental payment and 25% will
be distributed to the City's consultant, Telecom Partners Group, Inc. (dba ATS
Communications). The Licensee has the option to extend the initial term of the
agreement, upon notification to the City, for each of two (2) additional five (5) year terms
through 2031.
City Council Agency Report
February 1, 2011
Communications Site License Agreement at Tustin Sports Park-MetroPCS
Page 2
In addition to the License Payments, the Licensee has agreed to make aone-time Capital
Contribution of $10,000 due within 30 days of the Effective Date of the Agreement. The
City will retain all (100%) of the Capital Contribution which is intended for park
improvement purposes.
BACKGROUND
Wireless facilities have been located in Tustin Sports Park since 1996, the equipment
facilities are located behind the scoreboard adjacent of Jamboree Road and the antennas
are located on light poles located adjacent to baseball fields. The existing wireless carriers
located within the park include ATT Wireless and STC One (Sprint).
On October 28, 2010 the Community Development Department approved the proposed
wireless facility consisting of a new light pole with six panel antennas, one GPS antenna, and
two equipment cabinets for the proposed Licensee, formerly known as Royal Street
Communications California, LLC. ATS Communications, the City's wireless communications
consultant has reviewed the proposed equipment and tower facilities found the location to be
an optimal location for a wireless facility. As part of the City's Design Review process the
proposed equipment structure and antenna facilities were reviewed by the City's Parks and
Recreation Department, the Public Works Department and the Building Division.
The proposed light pole containing the light and antenna was found to be compatible with
the existing sports field light poles in the park. The light from this pole is intended to provide
light on an adjacent pedestrian path in the park that currently does not have direct lighting.
The proposed Licensee will be responsible for equipping and installing the lighting on the
pole in accord with the City's specifications. The approval Design Review is contingent upon
the proposed Licensee agreeing to and signing an Agreement to Conditions Imposed and the
City Council approving a License Agreement with the proposed Licensee. The Agreement to
the Conditions Imposed is part of the proposed License Agreement.
Should you have any questions, staff will be available to respond.
-~
Christine A. Shingleton
Assistant City Manager
Approved for Forwarding By:
~~~ G
David C. Biggs
City Manager
Attachments
.~ .~
Annual Escalator 4.00%
Monthly Base Rent $ 2,400
City Percentage of Gross 75%
ATS percentage of Gross 25%
..7 ~ _t.. ' u " ~` Y ANNUAL
Sh
Ci
ATS Sh CUMULATIVE
ATS Sh
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Cit
Sh
G
r
1 Gross
28,800 are
ty
21,600 are
7,200 ross
y
are
a
2 29,952 22,464 7,488
3 31,150 23,363 7,788
4 32,396 24,297 8,099
5 33,692 25,269 8,423
6 35,040 26,280 8,760
7 36,441 27,331 9,110
8 37,899 28,424 9,475
9 39,415 29,561 9,854
Initial Term (10 yrs) 10 40,991 30,744 10,248 345,776 259,332 86,444
11 42,631 31,973 10,658
12 44,336 33,252 11,084
13 46,110 34,582 11,527
14 47,954 35,966 11,989
Frist Option (5 yrs) 15 49,872 37,404 12,468 576,679 432,509 144,170
16 51,867 38,900 12,967
17 53,942 40,456 13,485
18 56,100 42,075 14,025
19 58,344 43,758 14,586
Second Option (5 years) 20 60,677 45,508 15,169 857,609 643,206 214,402
COMMUNICATIONS SITE LICENSE AGREEMENT
This Communication Site License Agreement ("Agreement") is made this day
of 20 ("Effective Date") by and between the City of Tustin, a municipal
corporation, (hereinafter "City"), and MetroPCS Networks California, LLC, a Delaware
limited liability company (f%k/a Royal Street Communications California, LLC)
(hereinafter "Licensee").
GRANT OF L[CENSE.
City currently owns property, commonly known as Tustin Sports Park, as legally
described on Attachment 1 (the "Property"). City hereby grants a License to Licensee for
the purpose of installing and maintaining certain communications equipment consisting of
antenna support structure (Tower), antennas, cable runs, radio transmitting and receiving
equipment, conduits, wires, batteries, back-up generators, utility lines and facilities, storage
facilities including walls, fences and gates, telephone facilities, microwave equipment and
associated equipment ("Licensee's Facilities") on the Property at those locations more
specifically set forth on Attachment No. 2 (the "Premises") and as depicted on Attachment
3 together with the non-exclusive right for ingress and egress from and to the nearest
public right-of--way, seven (7) days a week, twenty-four (24) hours a day, subject to any
restrictions stated herein, on foot or motor vehicle, including trucks, and for the installation
and maintenance of utility wires, poles, cables, conduits, and pipes over, under, or along a
twelve foot (12') wide right-of--way extending from the nearest public right-of-way (the
Non-Exclusive Site Access Area) to the Premises to be approved in form and content in
City's sole discretion as generally depicted in Attachment No. 3. Licensee shall be
responsible for installing and maintaining access required, subject to the limitations set
forth in this Agn-eement and more particularly described as follows:
1.1 All utility wires, poles, cables, conduits and pipes along or under the Non-
Exclusive Site Access Area shall be below ground.
1.2 Motor vehicles, including trucks shall be limited in their access to Premises on
those portions of the Non-Exclusive Site Access Area that are depicted on Attachment 3.
1.3 Licensee shall have twenty-four (24) hour per day, seven (7) day per week access
to the Premises, without payment of any additional fees to City. Licensee shall give
twenty four (24) hours notice to the City prior to commencing any routine maintenance or
any other activity or work that would interfere with the use of the park or scheduled City
activities or programs; provided that no advanced notice shall be required in the event of
an emergency, in which case Licensee shall give City notice of its access to the Premises
as soon as is reasonably practical thereafter. Routine maintenance and work hours that
result in interference with the use of the park or scheduled City activities or programs shall
be subject to review and approval by the City, which approval shall not be unreasonably
denied, delayed or conditioned. The Licensee shall not interfere with City scheduled
activities within Tustin Sports Park, except in the event of an emergency as defined in
Section 12 of this A~neement.
2. TERM.
Unless earlier terminated in accordance with this Agreement, the Term of this
Agreement shall be for ten (10) years commencing upon the Effective Date herein above
written.
3. LICENSE PAYMENT, CAPITAL CONTRIBUTION, OPERATIONAL
EXPENSES AND SECURITY DEPOSIT.
3.1 License Payment. Licensee shall pay a monthly payment ("License
Payment") of Two Thousand Four Hundred Dollars ($2,400) payable to the City on the
first of each month. The Licensee shall commence payments upon the Effective Date of
this Agreement.
If the monthly License Payment is not paid within thirty (30) days after the due
date, and provided Licensee has complied with all applicable notice and cure provisions
herein, a late charge equal to ten (10) percent of such overdue amount shall be paid by
Licensee for purposes of defraying the expense incidental to handling such delinquent
payment, together with interest from the date such payment was due until paid in full, at
the default rate of ten (10) percent, per annum, compounded annually. License Payments
attributable to partial months shall be prorated on a daily basis. License Payments and
other revenue owing to the City shall be made pursuant to Attachment No. 5, License
Payment Direction Form or as modified in writing by the City upon notice to the Licensee.
3.2 Capital Contribution. Licensee shall pay aone-time non-refundable Capital
Contribution to the City in the amount of Ten Thousand Dollars ($10,000) within thirty
(30) days of the Effective Date. This non-refundable Capital Contribution shall be retained
by the City even if the Licensee fails to construct the Licensee's Facilities.
3.3 Security Deposit.
3.3.1 Payment and Form of Security Deposit. Prior to the Effective Date and
prior to taking possession of the Premises, the Licensee shall pay to City a Security
Deposit in the amount equal to the monthly license fee for three (3) months, or an amount
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of Seven Thousand Two Hundred Dollars ($7,200). In lieu of posting a cash Security
Deposit, Licensee may provide a performance bond to the City of Tustin in the total
amount of Seven Thousand Two Hundred Dollars ($7,200), naming the City as covered
obligee, with surety and in the form and substance each acceptable to the City in its sole
discretion.
3.3.2 Performance. Said Security Deposit shall serve as security for the faithful
performance of all Licensee's obligations, and may be applied in satisfaction and/or
mitigation of damages arising from an Event of Default, including but not limited to
delinquent payments, correction of maintenance and repair deficiencies and completion of
construction. Application of amounts on deposit in satisfaction and/or mitigation of
damages shall be without prejudice to the exercise of any other rights provided herein or
bylaw to remedy an Event of Default.
3.3.3 Maintaininu Security Deposit. In the event any or all said amounts are
applied in satisfaction and/or mitigation of damages Licensee shall immediately deposit
such sums as are necessary or replenish their performance bond to restore Security Deposit
to the full amount required hereunder.
3.3.4 Return of Security Deposit. Said cash Security Deposit amount shall be
returned or performance bond released upon termination of this Agreement less any
amounts that may be withheld from Licensee for Licensee's failure to perform its
obligations hereunder, provided that in the Event of Default, the entire performance deposit
or performance bond shall be forfeited to City.
3.4 Property Taxes and Fees. Licensee shall pay all applicable real property
taxes, and/or all possessory interest taxes or fees applicable to the Premises prior to
delinquency thereof. Licensee shall also pay and discharge punctually, as and when due,
any and all taxes upon Licensee's personal property, equipment and trade fixtures installed
about the Premises. Licensee shall have the sole responsibility to pay such taxes or fees.
3.5 Utilities. Licensee shall obtain, at its sole cost and expense, any utilities for
the operation of Licensee's Facilities. Licensee will install a separate meter for the
measurement of its power and will pay for utilities used by the Licensee. Licensee shall
promptly pay all assessments, deposits, rents, costs, connections and tap-in fees and other
charges for connection of utilities or installation of utility improvements including any
charges or fees imposed by any utility company or governmental entity or agency for
making such connections and for service throughout the Term of the Agreement.
4. ANNUAL LICENSE PAYMENT INCREASES.
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Monthly payments shall be subject to an annual License Payment increase of four
percent (4%) per year, to be increased on each anniversary of the Effective Date of this
Agreement.
5. LICENSE EXTENSIONS.
Provided that Licensee is not in default in the performance of this License,
Licensee shall have the option to extend the teen of this Agreement for two (2) additional
and consecutive terms of five (5) years each (each a "Renewal Term"), provided that the
City shall have the right to review and modify Agreement terms related to insurance in any
renewal license per City policy. The monthly Licensee Payment shall be the existing
Licensee Payment as adjusted on an annual basis as described in Section 4, Annual License
Payment Increases. The option(s) to extend the term shall be exercised by written notice
given to the City not less than ninety (90) days prior to the Agreement termination date.
6. GOVERNMENTAL APPROVALS.
It is understood and agreed that Licensee's ability to use the Premises is contingent
upon its obtaining all of the certiticates, permits and other approvals (collectively the
"Governmental Approvals") that may be required to comply with Federal and State
Building and Safety Codes including but not limited to the California Building Code and
International Construction Codes, and City zoning and building codes as appropriate,
including any applicable discretionary land use permits such as site plan or use permit
requirements. Licensee may be required by the City Manager or City Manager's designee
or designees (collectively referred to in this License as "City Manager") to provide other
information in the planning process such as site plans, design concepts and photo
simulations of the structural plans. Licensee shall have the right (but not the obligation) to
enter the Premises for the purpose of making necessary inspections and engineering
surveys (and soil tests where applicable) and other reasonably necessary tests (collectively
"Tests") to determine the suitability of the Premises for Licensee's Facilities and for the
purpose of preparing for the construction of Licensee's Facilities. In the event that any of
such applications for such Governmental Approvals should not be approved or any
Governmental Approval issued to Licensee is canceled, expires, lapses, or is otherwise
withdrawn or terminated by the governmental authority or are found to be unsatisfactory so
that Licensee will be unable to use the Premises for its intended purposes, Licensee and
agents representing the Licensee shall have the right to terminate this Agreement. Notice
of Licensee's exercise of its right to terminate shall be given to City in writing by personal
service, or first class mail, or by a nationally recognized carrier, and if mailed, shall be
effective upon the mailing of such notice by Licensee. All License Payments including
deposits or fees, if applicable, paid prior to said termination date shall be retained by the
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City. Upon such termination, this Agreement shall become null and void and all the
Parties shall have no further obligations, including the payment of money, to each other.
7. LICENSEE'S USE AND MAINTENANCE OF PREMISES.
7.1 Use. Following City's approval of Licensee's Facilities plans and
specifications, Licensee may use the Premises for the provision of mobile/wireless
communications services, including transmission and reception of radio communication
signals on various frequencies providing there is no conflict with the primary purpose of
the City-owned property or City emergency communication activities including, but not
limited to, emergency service responders serving the City (e.g., the City's Police
communication system, the Orange County Fire Authority communication system, and
other emergency communication systems).
Accordingly, Licensee shall have the right to construct, maintain, install, repair, and
operate on the Premises, radio communications facilities, including but not limited to,
radio frequency transmitting and receiving equipment, batteries, utility lines, transmission
lines, radio frequency transmitting and receiving antennas and supporting structures and
improvements.
7.2 Maintenance of Licensee's Facilities and Damage to City Property.
Notwithstanding the foregoing, once the initial improvements are installed, Licensee shall,
as is necessary, be responsible for the replacement, substitution, upgrading and expansion
of its equipment, cables and antennas which comprise Licensee's Facilities and in the
repair and upgrading of the physical structure or communications capabilities of the
Licensee's Facilities, so long as the equipment, cables or antennas remain within the
original physical parameters of the Premises and are consistent with City approved
building permit plans and specifications. Licensee is responsible for notifying the City as
described in this Section 7 prior to entering the Premises. Licensee shall be responsible for
the cost of any and all damage to City-owned property including but not limited to, turf,
concrete and/or asphalt, buildings and/or apprentices caused by Licensee regardless of
negligence. Licensee shall repair and/or replace said damages or City will contract for said
services. If City makes such repairs and/or replaces said damages (only after giving
Licensee notice of intent to do so and an opportunity to cure), then Licensee shall pay to
City an amount equal to the amount of said costs which City has invoiced Licensee within
thirty (30) days after presentation by the City to Licensee of a written invoice and
supporting documentation. If any payment to be made by Licensee is not received within
such thirty (30) day period, a late charge equal to ten (10) percent of such overdue amount
shall be paid by Licensee for purposes of defraying the expense incidental to handling such
delinquent payment, together with interest from the date such payment was due until paid
in full, at the default rate often (10) percent per annum.
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7.3 Noticin~~ on Premises. Licensee shall install any warning signs on or about
the Premises required by federal, state or local law, subject to prior notice to and consent of
City, which consent shall not be unreasonably denied, delayed or conditioned.
7.4 Licensee Maintenance Notification. Licensee shall provide notification to
the City five (5) days prior to commencement of any construction work on the Licensee's
Facilities conducted by the Licensee or its agents, so as to give the City the opportunity to
post a notice of non-responsibility. Said work hours are subject to the approval by the
City. Licensee in providing regular maintenance to the Licensee's Facilities shall provide
twenty-four (24) hour notice to the City prior to commencing any maintenance that would
interfere with the use of City facilities or scheduled events; all other routine maintenance
work may be conducted without notice to the City. Said work hours shall be subject to
review and approval by the City.
7.5 Licensee Notification for Emergency Repair. Any work or repair of an
emergency nature will require the Licensee to provide notification by telephone to the City
of Tustin, Police Department's Watch Commander at 714.573.3200 or other designee of
the City Manager who is identified by written notice to Licensee.
7.6 Maintenance of Licensee's Facilities. Licensee shall maintain its Facilities
and shall make all repairs to the Premises necessitated to keep the Premises clean, safe, and
a condition that approximates the initially installed Facilities including exterior finishes. If
the Licensee is responsible for installing any landscaping on the Property as a result of any
government permits or approvals, once the initial installation is completed, City shall be
responsible for the ongoing maintenance thereof. In the event any portion of the Facilities
and/or any parts regardless of fault including but not limited to damage caused by
vandalism or Acts of God, except if damage caused solely by the gross negligence or
willful misconduct of City, its employees, agents, contractors or volunteers, prove to be
defective or shall require repair or prompt maintenance to prevent further deterioration, the
Licensee shall, promptly on demand by the City and in no event later than seven (7)
calendar days thereafter, complete such required repair or work and continuously prosecute
the same to completion at its sole cost and expense. Damage caused by graffiti shall be
removed promptly within forty-eight (48) hours after demand by City to Licensee. This
time period for completion of any required work may be extended with written
authorization from the City in its sole discretion. In the event such authorization is not
given and required work and repairs is not completed within time frames noted herein, or
any additional time granted by the City for completion of work, City shall have the right
but not the obligation to take such actions as are necessary to complete such work, correct
such defect or effect such repair. Any costs incurred by the City or its contractors in
performing such work shall be due and payable by Licensee within ten (10) calendar days
of receipt by Licensee of written demand therefore by the City. If any payment to be made
by Licensee is not received within such ten (10) calendar day period, a late charge equal to
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ten percent (10%) of such overdue amount shall be paid by Licensee for purposes of
defraying the expense incidental to handling such delinquent payment, together with
interest from the date such payment was due until paid in full, at the default rate of ten
percent (10%) per annum.
8. CITY'S USE OF PREMISES.
81 City Business. Notwithstanding the grant of license rights to Licensee, City
and the public shall have the right to conduct City Business on the Property and within the
Non-Exclusive Access Area, excluding that portion of the Premises identified for
Licensee's Facilities. Nothing in the Agreement shall impair or impact the ability of the
City or the public to use any area adjacent or near the Premises for any lawful purpose;
provided such use does not interfere with the Licensee's use of the Premises or operation
of its Facilities thereon. "City Business" shall include, but not be limited to the following:
maintenance, landscaping, construction, concessionaires, and City sponsored events, active
and passive park activities located on or near the Premises, so long as the City Business
does not interfere with or impair the operation of Licensee's Facilities. City shall have the
right to inspect Licensee's facilities by providing at least twenty four (24) hours advance
notice to Licensee, except in cases of emergency.
8.2 Co-Location. Licensee acknowledges and agrees that City policy is to
provide for co-location of communication tower facilities. In the event that a third party
wishes to collocate equipment within/on Licensee's Premises, Licensee shall require such
third party to enter into a License directly with the City for use of ground space outside of
the Premises, and for use of the Non-Exclusive Site Access Area and utility easements
therefore. Licensee acknowledges that the City shall retain the authority and absolute right
to enter into a license agreement with other mobile/wireless communications providers
("Additional Licensee") to utilize space on the Property, excluding the Premises. City
agrees that any subsequent license agreement for an Additional Licensee shall include a
provision that, as a condition precedent to using such space, Additional Licensee shall not
interfere with the operations of Licensee's Facilities, and shall indemnify, defend and hold
harmless Licensee and its employees, agents, contractors and subcontractors for any and all
losses, claims, liabilities, damages, costs and expenses (including reasonable attorney's,
court and appellate fees and costs) and injuries (including personal injuries or death)
caused or contributed to by Additional Licensee, its employees, agents, contractors,
subcontractors and invitees.
8.3 City Use of Tower for Park Ligh~g. Licensee shall construct the Tower so
that it is structurally and functionally capable of supporting City's lighting equipment, as
specified in Attachment No. 3. Licensee shall be responsible for equipping and installing
the City park lighting on Tower as specified by the City's Parks and Recreation
Department, the Department of Public Works, and the City's Building Division. The City
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shall have the right, but not the obligation, to install lighting equipment thereon, as such
lighting equipment is generally shown on the Site Plans attached hereto as Attachment No.
3, which lighting equipment shall at all time remain the personal property of the City and
the City shall at all times be solely responsible and liable for the installation, operation,
maintenance and repair thereof, including but not limited to replacement of lights and all
other ownership obligations relating thereto, except for damage resulting from the
negligence or willful misconduct of Licensee. If City intends to make any changes to such
lighting equipment or if the installation will deviate at all from that shown on Attachment
No. 3 hereto, City must first obtain Licensee's prior written consent to such changes,
which consent shall not be unreasonably denied, delayed or conditioned. City will notify
Licensee of any installation, construction, maintenance, repair and removal work to be
conducted on the Tower, and will coordinate the scheduling of such activities with
Licensee so that Licensee can power down its equipment, if necessary, to meet any ANSI
(defined in Section 11.1 below) standards or any other applicable laws, orders or regulation
relating to Maximum Permissible RF Exposure.
9. INDEMNITY.
9.1 Licensee Indemnification of City. To the maximum extent permitted by
law, Licensee shall defend, with counsel acceptable to City, indemnify, and save harmless
City and its officers, employees, and agents from, and shall pay all costs, expenses and
reasonable attorney's fees for all trial and appellate levels and post judgment proceedings
in connection with, any and all claims and demands, actions, proceedings, losses, liens,
costs and judgments of any kind and nature whatsoever, including expenses incurred in
defending against legal actions, for death or injury to persons or damage to property and
for civil fines and penalties to the extent arising out of the occupation or use of the
Premises by Licensee, its employees, agents, servants, guests, invitees, contractors, or
sublessees, including the following:
9.1.1 Any dangerous, hazardous, unsafe or defective condition, in or on the
Premises, of any nature whatsoever, which may exist by reason of any act, omission,
neglect, or any use or occupation of the Premises by Licensee, its officers, agents,
employees, sublessees, licensees or invitees from commencement of the term of the
License Agreement;
9.1.2 Any operation conducted upon or any use or occupation of the Premises by
Licensee, its officers, agents, employees, sublessees, licensees or invitees under or
pursuant to the provisions of this License Agreement or otherwise;
9.1.2.1 Any act, omission, or negligence of Licensee its officers,
agents, employees;
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9.1.2.2 The loss of, or damage to any property of Licensee by theft
or otherwise;
9.1.2.3 Any failure of Licensee, its officers, agents, employees or
sublessees to comply with the terms or conditions of this License Agreement or any
applicable federal, state, regional or municipal law, ordinance, rule or regulation
related to the use or occupancy of the Premises.
10. INSURANCE.
10.1 Licensee shall provide, or cause its member(s) or contractor(s) to provide,
and maintain at its own expense during the term of the work the following insurance
covering all work under this Agreement. Licensee shall require and verify that all
subcontractors maintain insurance meeting all the requirements stated herein. Such
insurance shall be provided with insurers authorized to do insurance business in the State of
California, with a rating of at least A-, VII or better or A-, X (if offered by a surplus line
carrier) according to the latest Best's Key Rating Guide, except that the City will accept
Workers Compensation Insurance rated B-, VIII or better or from the State Compensation
Fund. Evidence of such insurance in the form of Certificates and signed Insurer
Endorsements shall be delivered to the City prior to commencing with work. The sigmed
Insurer Endorsements (or a copy of the policy binder, if applicable) shall specifically identify
the work and shall provide that (1) said insurance shall not be cancelled, except if City is
given at least thirty (30) days advance written notice of any cancellation or termination of
insurance; (2) commercial general liability insurance shall be primary to and not contributing
with any other insurance maintained by City, and shall name Licensee, the City and any
related entity of the City, as appropriate, as additional insureds; (3) shall contain a provision
that the insurer waives any right of subrogation against the City insured parties which may
arise by reason of any payments made under a policy; and (4) if Licensee is self insured for
Workers' Compensation, Licensee shall submit to City a copy of its certification of self
insurance. All insurance shall be maintained on an occurrence basis and shall include the
following:
10.1.1 Commercial General Liability Insurance. Commercial general
liability and property damage insurance covering the Premises, including automobile
liability insurance, contractual, broad form property damage, and bodily injury or death,
with a combined single limit of not less than $1,000,000 per occurrence with respect to
personal injury or death, and $1,000,000 per occurrence with respect to property damage.
Coverage shall be at least as broad as Insurance Services Office Commercial General
Liability coverage (occurrence Form CG 00 Ol).
10.1.2 Workers' Compensation Insurance. To the extent that Licensee has
employees, workers' compensation insurance in an amount and form meeting all
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applicable requirements of the California Labor Code, covering all employees of Licensee
and all risks to such persons.
10.1.3 Deductibles. Except as otherwise provided below, all insurance
limits shall be without deduction, provided that the City may permit a deductible amount in
those costs where, in its judgment, such a deduction is justified.
Commercial General Liability: $100,000
Auto Liability: $100,000
Worker's Compensation: $250,000
10.1.4 Contractors and Subcontractors. Licensee shall not allow any
contractor or subcontractor to commence work until all insurance required of the contractor
or subcontractor has been obtained. All coverages for contractors and subcontractors shall
be subject to all of the requirements stated herein.
10.1.5 Verification of Coverage. The insurer endorsements required herein
are to be signed by a person authorized by that insurer to bind coverage on its behalf. All
endorsements are to be received and approved by City before the Effective Date of the
Agreement.
10.1.6 Vehicle Insurance. Licensee shall maintain sufficient automobile
liability insurance on any vehicle accessing the Licensed premises and such insurance shall
be in the amount of $1,000,000 per accident for bodily injury and property damage.
Coverage shall be at least as broad as Insurance Services Office Form Number CA 00 O1
covering Automobile Liability, Code 1 (any auto).
11. MISCELLANEOUS LICENSEE RESPONSIBILITIES.
11.1 Maximum Permissible Exposure. Licensee shall comply with all present
and future laws, orders and regulations relating to Maximum Permissible Exposure
("MPE") and other related health issues directly applicable to its operation of Licensee's
Facilities, as well as the American National Standards Institute (ANSI) standards. Without
limiting the provisions of Licensee's indemnity contained herein, Licensee, on behalf of
itself and its successors and assigns, shall indemnify City, its officials, officers, and
employees from and against all claims of personal injuries due to violation of MPE to the
extent such personal injuries are actually caused by Licensee's Facilities on the Premises.
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11.2 Non-Interference by Licensee of CitX Events. The Licensee shall not
interfere or cause to interfere with activities on adjacent City-owned sites including sports
activities and cultural events. Licensee shall notice the City pursuant to Section 7,
Licensee's Use and Maintenance of Premises, of this Agreement regarding maintenance,
repair and installation work.
12. EMERGENCY USE OF SITE.
In cases of emergency, Licensee shall make available to the City police, fire and
emergency services a location for City's communication equipment on Licensee's Facilities
at no cost to City on a temporary basis, not to exceed thirty (30) days. The City is
responsible for maintaining its own equipment. In addition, City shall indemnify, defend
and hold harmless Licensee, its officers, directors, partners, shareholders, employees,
agents, contractors or subcontractors from and against any and all losses, claims, liabilities,
damages, costs and expenses (including reasonable attorney's fees and costs) and injuries
(including personal injuries or death) arising from or in connection with City's use,
operation, maintenance or repair of equipment on the Premises and Licensee Facilities,
except those resulting from the negligence or willful misconduct of Licensee or Licensee's
officers, directors, partners, shareholders, employees, agents, contractors or subcontractors.
The space to be made available will not create interference with Licensee's
communications operations and radio frequency transmissions previously in use and
operating in compliance with all government regulations. The City entities will be
afforded 24-hour access to its equipment at the Premises. In addition, for such emergency
use only, the City will be provided "power backup" by Licensee at the Premises, if
available, on a temporary basis; provided City hereby waives any and all rights and claims
against Licensee for any damages, injury or costs that may arise should there be an
interruption or outage in use of such "power backup."
13. DEFAULTS.
It shall constitute an Event of Default under this Agreement, if a party (the
"Defaulting Party"):
13.1 Failure to Timely Pay_("Monetary Default"). Fails to timely pay any sum
required to be paid by the Defaulting Party pursuant to this Agreement.
13.2 Failure to Perform Under this Agreement ("Non-Monetary Default"). Fails
to perform, or delays in the performance of, in whole or in part, any obligation required to
be performed by the Defaulting Party as provided in this Agreement.
11
13.3 Cure Periods. The other Party (the "Injured Party") shall give written notice
to the Defaulting Party of such Event of Default at any time after occurrence thereof,
which notice shall state the particulars of the Event of Default. After receipt of such
written notice, a Defaulting Party shall have ten (10) days in which to cure any Monetary
Default/ ANon-monetary Default shall be cured (i) within thirty (30) days after receipt of
written notice from the Injured Party, or (ii) at the Injured Parties sole discretion a longer
period of time as may be granted in writing for the cure period if the nature of the cure is
such that it cannot be reasonably accomplished within such thirty (30) day period, but only
if the Defaulting Party has commenced such cure within such thirty (30) day period and
thereafter continuously and diligently pursues the cure to completion to the satisfaction of
the Defaulting Party.
13.4 Remedies. Upon occurrence of an uncured Default by the Parties, the
Injured Party may:
13.4.1 Terminate the Agreement. By written notice to the
Defaulting Party pursuant to Section 16 of the Agreement.
13.4.2 Seek Performance. See specific performance of the
obligations under the Agreement.
13.4.3 All Other Rights and Remedies. Exercise any of its rights
and remedies at law or in equity, or otherwise as provided in this Agreement.
14. LICENSEE'S COMPLIANCE WITH ENVIRONMENTAL LAWS.
14.1. Hazardous Materials. Licensee shall not bring any Hazardous Materials
onto the Premises, except for those contained in its back-up power batteries and common
materials used in telecommunications operations. "Hazardous Materials" shall mean any
substance, chemical or waste identified as hazardous, toxic or dangerous in any applicable
federal, state or local law or regulation, including petroleum and asbestos. Licensee will
treat and dispose of any Hazardous Materials brought onto the Premises/Property by it in
accordance with all federal, state and local laws and regulations.
14.2. Licensee Compliance with Regulations. Licensee will be responsible for all
obligations of compliance with any and all environmental and industrial hygiene laws,
including any regulations, guidelines, standards, or policies of any governmental
authorities regulating or imposing standards of liability or standards of conduct with regard
to any environmental or industrial hygiene conditions or concerns as may now or at any
time hereafter be in effect, that are or were in any way related to the operation of
Licensee's Facilities.
12
15. CASUALTY
In the event of damage by fire or other casualty to the Premises that cannot reasonably be
expected to be repaired within sixty (60) days following same or, if the Property is
damaged by fire or other casualty so that such damage may reasonably be expected to
disrupt Licensee's operations at the Premises for more than sixty (60) days, then Licensee
may at any time following such fire or other casualty, provided City has not commenced
the restoration required on the Property to permit Licensee to resume its operation at the
Premises, terminate this Agreement upon twenty (20) days written notice to the City. Any
such notice of termination shall cause this Agreement to expire with the same force and
effect as though the date set forth in such notice were the date originally set as the
expiration date of this Agreement and the parties shall make an appropriate adjustment, as
of such termination date, with respect to payments due to the other under this Agreement.
If Licensee decides not to terminate this Agreement, the License Payment shall be abated
proportionally to the reduction of use of the Premises as reasonably determined by the
City.
16. TERMINATION.
16.1. Compelled Termination. If, during the License Agreement Term, there is a
determination made pursuant to an un-appealable order of a county, state, or national
governmental health agency having proper jurisdiction over Licensee's operations that
Licensee's use of the Premises poses a human health hazard which cannot be remedied and
that Licensee must cease all operations on the Premises, then Licensee shall immediately
cease all operations on the Premises and this Agreement shall terminate as of the date of
such order. In the event the Federal Communications Commission, or any successor
agency, makes a determination which is final and non-appealable or which is affirmed and
becomes final after the exhaustion of all available appeals concluding that Licensee's use
as set forth in this Agreement presents a material risk to the public health or safety and that
Licensee must cease all operations on the Premises, City or Licensee may terminate this
Agreement immediately upon written notice to the other party.
16.2. Termination by Licensee. Licensee may terminate this Agreement by
notice to City if (i) Licensee does not obtain all permits, consents, easements, non-
disturbance agreements or other approvals (collectively "approval") reasonably desired by
Licensee or required from any governmental authority or any third party related to or
reasonably necessary to operate, install, maintain, replace, or remove Licensee's Facilities,
or if any such approval is canceled, expires or is withdrawn or terminated without any fault
of Licensee, or (ii) Licensee experiences any technological interference to its operations at
the Premises, including, without limitation, signal strength, (iii) the Property or Licensee's
13
Facilities are, or become, unacceptable under Licensee's design or engineering
specifications for Licensee's Facilities or the communications system to which Licensee's
Facilities belong, so long as Licensee pays City a termination fee equal to six (6) months of
the then current License Payment, or (iv) upon ninety (90) days' written notice by Licensee
if Licensee determines that the Property or Licensee's Facilities are inappropriate or
unnecessary for Licensee's operations due to economic reasons so long as Licensee pays
City a termination amount equal to six (6) months' of the then current License Payment, as
an early termination fee, or (v) City fails to cure a default within sixty (60) days after
receipt of written notice thereof to cure, or upon any longer period as may granted to City
by Licensee pursuant to Section 13.3. Upon termination, except in the case of a
termination for a Default by City, all prepaid rent shall be retained by City. In the event
Licensee abandons its property for ninety (90) days, including, but not limited to, the tower
structure, antennas, support structures, cabling; equipment, radios or any ancillary
equipment, it shall become the property of the City. Abandonment shall be defined as
stoppage of License Payment for three (3) consecutive months, provided that City has
notified Licensee of its failure to make such License Payments in accordance with Section
13, and failure to provide City with written communication by Licensee regarding use of
Licensee Facilities; City is under no obligation to contact Licensee regarding status of
Licensee Facilities during this period.
16.3. Termination by City. In the event that Licensee does not cure an Event of
Default pursuant to Section 13, the City may terminate this Agreement, or upon thirty (30)
days prior written notice if the City and Licensee fail to agree upon a Relocation Site in
accord with Section 17 of this Agreement.
17. RELOCATION RIGHT BY CITY.
17.1. City Right to Order Relocation. Anytime after the expiration of the Initial
Term, the City shall have the one-time right to relocate Licensee's Facilities to alternate
space on the Property; to be performed by Licensee or its agents, at the Licensee's sole
cost, to be done in accordance with subsections 17.2 and 17.3 below. Upon relocation of
Licensee's Facilities, the access area and utility rights-of--way areas will be relocated as
required, in the sole discretion of City in coordination with any utility provider, to operate
and maintain Licensee's Facilities. Any relocation of the Licensee's Facilities shall be
consistent with Chapter 3 of Division 4 of the California Public Utilities Code (Section
7901 et seq.) and other sections of the Public Utilities Code, as applicable except that the
provisions of this Section 17.1 shall only remain in force and effect for twenty-five (25)
years. Notwithstanding anything in this Agreement to the contrary, under no
circumstances is Licensee responsible or liable to relocate any of the City's equipment or
any Additional Licensee's equipment, such responsibility and liability remaining solely
with the entity that owns or operates such equipment.
14
17.2. Exercising Right to Relocation. City shall exercise City's relocation right
under Section 17.1 above by (and only by) delivering written notice (the "Notice") to
Licensee. In the Notice, City shall propose an alternate site within or on the Property to
which Licensee may relocate Licensee's Facilities. Licensee shall have sixty (60) days
from the date it receives the Notice to evaluate City's proposed relocation site, during
which period Licensee shall have the right to conduct tests to determine the technological
feasibility of the proposed relocation site. If Licensee fails to approve of such proposed
relocation site in writing within the sixty-day (60) period, Licensee shall be deemed to
have disapproved such proposed relocation site. If Licensee disapproves such relocation
site, then City may thereafter propose another relocation site by Notice to Licensee in the
manner set forth above. If the City and Licensee fail to find an alternative site for
relocation within six (6) months of the Notice being delivered by the City, the License
Agreement shall be terminated pursuant to Section 16, Termination. Licensee shall have a
period of not more than twelve (12) months after execution of a written agreement between
the parties concerning the location and dimensions of the Relocation Site to relocate
Licensee's Facilities to the Relocation Site.
17.3. Agreement to Survive Relocation of Licensee's Facilities. Upon relocation
of Licensee's Facilities to the Relocation Site, all references to the Premises herein shall be
deemed to be references to the Relocation Site. City and Licensee agree that the
Relocation Site (including the access and utility right of way) may be surveyed by a
licensed surveyor at the sole cost of Licensee, and such survey will then replace Exhibit
"B" and become a part hereof and will control or describe the Premises. Except as
expressly provided, City and Licensee hereby agree that in no event will the relocation of
Licensee's Facilities, or any part thereof, under Section 17.1 above, affect, alter, modify or
otherwise change any of the terms and conditions of this Agreement.
18. CONDITION OF PREMISES AT TIME OF TERMINATION.
Upon termination of this Agreement, Licensee shall within thirty (30) days remove
all of Licensee's Facilities and all personal property and restore the Premises, as defined in
this Agreement, to the condition in which it existed immediately prior to Licensee's
construction on the Premises. City acknowledges that all of the equipment and personal
property of Licensee shall remain the personal property of Licensee and shall not be
deemed fixtures, and Licensee shall have the right to remove such facilities. City may, at
its sole discretion, agree to provide reasonable additional time to remove facilities. In such
event, Licensee shall pay the License Payment as adjusted upward by twenty-five percent
(25%) until such time as the facilities and personal property are removed. In the event, the
Licensee fails to remove the facilities and personal property within such thirty (30) day
15
period as requested by the City, the City may remove the facilities and personal property at
the cost of the Licensee.
19. NON-INTERFERENCE WITH PUBLIC COMMUNICATIONS SYSTEMS.
19.1. Non-Interference with Public Safety Communication Systems. Before
activating Licensee's Facilities, Licensee shall submit to apost-installation test to confirm
that the "planning and frequency coordination" of the facility was successful in not
interfering with the City of Tustin's Public and Safety radio equipment. The test will be
conducted by the Communications Division of the Orange County Sheriff-Coroner
Department or aDivision-approved contractor at the expense of the applicant. 'This post-
installation testing process shall be repeated for every proposed frequency addition and/or
change to confirm the intent of the "frequency planning" process has been met. Licensee
shall provide a 24-hour phone number to which interference problems may be reported.
To ensure continuity on all interference issues the name, telephone number, fax number,
and e-mail address of a "single point of contact" in its Engineering and Maintenance
Departments shall be provided to the City prior to activation of the Licensee's Facilities as
well as a telephone number to its Network Operations Center.
19.2. Notes to be Added to Licensee's Submitted Plans. "Licensee recognizes
that the frequencies used by the wireless facility located at the Premises are close to the
frequencies used by the City of Tustin for public safety. This proximity will require
extraordinary "comprehensive advanced planning and frequency coordination" engineering
measures to prevent interference, especially in the choice of frequencies and radio ancillary
hardware. This is encouraged in the "Best Practices Guide" published by the Association
of Public-Safety Communication Officials-International, Inc. (APCO) and as endorsed by
the Federal Communications Commission (FCC). Prior to the issuance of any permits to
install the facility, Licensee shall meet in good faith to coordinate the use of frequencies
and equipment with the Communications Division of the Orange County Sheriff-Coroner
Department to minimize, to the greatest extent possible, any interference with the Public
Safety 800 MHz countywide Coordinated Communications System (CCCS). Similar
consideration shall be given to any other existing or proposed wireless communications
facility that maybe located on the subject property.
The Licensee shall provide a 24-hour phone number to which interference
problems may be reported. To ensure continuity on all interference issues the name,
telephone number, fax number, and a-mail address of a "single point of contact" in its
Engineering and Maintenance Departments shall be provided to the City upon activation of
the facility.
20. MISCELLANEOUS PROVISIONS.
16
20.1 Authority of Signatories. Each undersigned represents and warrants that its
signature herein below has the power, authority and right to bind their respective parties to
each of the terms of this Agreement, and each party shall indemnify the other fully,
including reasonable costs and attorney's fees, for any injuries or damages incurred in the
event that such authority or power is not, in fact, held by the signatory or is withdrawn.
20.2 Integration and Amendments. The Agreement constitutes the entire
agreement between the Parties pertaining to the subject matter hereof. This Agreement
may not be modified, amended, supplemented, or otherwise changed except in writing
executed by both Parties.
20.3 Partial Invalidity. If any provision of the Agreement is declared to be
invalid, illegal, or unenforceable, the validity, legality and enforceability of the remaining
provisions hereof shall not in any way be affected or impaired.
20.4 Ri ts. The failure of either Party to insist upon strict performance of any
of the terms or conditions of this Agreement or to exercise any of its rights under the
Agreement shall not waive such rights and such Party shall have the right to enforce such
rights at any time and take such action as may be lawful and authorized under this
Agreement, either in law or in equity.
20.5 Governing Law. This Agreement and the performance thereof shall be
governed, interpreted, construed, and regulated by the laws of the State of California, with
venue in Orange County.
20.6 AttorneX's Fees. The substantially prevailing party in any legal action or
lawsuit arising hereunder shall be entitled to its reasonable attorneys' fees and court costs,
including appeals, if any.
20.7 Assi~mnent/Subletting.
20.7.1 Licensee shall not assign, transfer or sublet any right or interest in
this Agreement without written approval of the City, which approval shall not be
unreasonably withheld; provided, however, that Licensee may, without City
approval and with notice pursuant to Section 20.9, assign its interest to its parent
company, any subsidiary or affiliate of it or its parent company or to any
successor-in-interest or entity acquiring more than fifty percent (50%) of its stock
or assets, subject to any financing entity's interest, if any, in this Agreement.
Notwithstanding the forgoing, Licensee may also without City approval but with
notice to City pursuant to Section 20.9, assign or transfer this Agreement to any
one of the entities listed in Attachment 7, so long as the Licensee confirms in
17
writing to the City that the capitalized value of that entity to whom the assignment
or transfer is being made has a capitalized value of not less than Two Billion
Dollars ($2,000,000,000).
All other assignments shall require review and approved by the City. Upon
assignment, Licensee shall be relieved of all future performance, liabilities, and
obligations under this License Agreement, provided that the assignee shall assume
all of Licensee's obligations herein.
20.7.2 Notwithstanding anything to the contrary contained in this
Agreement, Licensee may assign, mortgage, pledge, hypothecate or otherwise
transfer without consent its interest in this Agreement to any financing entity, or
agent on behalf of any financing entity to whom Licensee (i) has obligations for
borrowed money or in respect of guaranties thereof, (ii) has obligations evidenced
by loans, bonds, debentures, notes or similar instruments, or (iii) has obligations
under or with respect to letters of credit, bankers acceptances and similar facilities
or in respect of guaranties thereof.
20.8 No Joint Venture. The Parties acknowledge and agree that this Agreement
shall not be deemed or constructed as creating a partnership, joint venture or similar
association between the City and Licensee and the relationship between the Parties shall
remain solely that of contracting Parties.
20.9 Notices. Any notice required to be given under this Agreement shall be
provided in writing, unless otherwise indicated, and may be provided by personal service
or first class mail, postage prepaid, or sent next-business-day delivery by a nationally
recognized overnight courier as follows:
To City:
City of Tustin
300 Centennial Way
Tustin, California 92780
Attention: Assistant City Manager/City Manager's Office
Tustin Redevelopment Agency
To Licensee:
MetroPCS Networks California, LLC
350 Commerce, Suite 200
Irvine, CA 92602-1302
18
Attn: Property Manager
With a copy to:
MetroPCS Networks California, LLC
2250 Lakeside Blvd.
Richardson, TX 75082
Attn: Property Manager
Telephone: 214-265-255 0
Facsimile: 866-457-4126
Additional Notice to:
President
ATS Communications
22642 Lambert Street, Suite 402
Lake Forest, CA 92630
City or Licensee may from time to time designate any other address for notices or
deliveries by written notice to the other party.
20.10 Time is of the Essence. Time is of the essence with respect to any act to be
performed under this Agreement.
20.11 Waiver of Cites. City acknowledges that Licensee may enter into
financing arrangements including promissory notes and financial and security agreements
for the financing of Licensee's Facilities (the "Collateral") with a third party financing
entity and may in the future enter into additional financing arrangements with other
financing entities. In connection therewith, City (i) consents to the installation of the
Collateral to the extent that the Collateral is part of the approved Licensee's Facilities; (ii)
disclaims any interest in the Collateral, as fixtures or otherwise, whether arising at law or
otherwise, including, but not limited to any statutory landlord's lien; and (iii) agrees that
the Collateral shall be exempt from execution, foreclosure, sale, levy, attachment, or
distress for any monies due or to become due and that such Collateral may be removed at
any time without recourse to legal proceedings.
20.12 Interference with Licensee's Facilities. Licensee's Facilities and operations
shall not interfere with the communications configurations, frequencies or operating
equipment which exist on City's Property on the Effective Date ("Pre-existing
Communications"), and Licensee's Facilities and operations shall comply with all non-
interference rules of the FCC. Upon written notice from City of apparent interference by
Licensee with Pre-existing Communications, Licensee shall have the responsibility to
19
promptly terminate such interference or demonstrate to City with competent information
that the apparent interference in fact is not caused by Licensee's Facilities or operations.
City shall not, nor shall City permit any subsequent tenant or occupant of any portion of
City's Property to, engage in any activities or operations which interfere with the
communications operations of Licensee described in this Agreement. Such interference
with Licensee's communications operations shall be deemed a material breach by City, and
City shall have the responsibility to promptly terminate said interference. In the event any
such interference does not cease promptly, the parties acknowledge that continuing
interference will cause irreparable injury to Licensee, and therefore Licensee shall have the
right to bring a court action to enjoin such interference or to terminate this Agreement
immediately upon notice to City. City agrees to incorporate equivalent provisions
regarding non-interference with Pre-existing Communications into any subsequent leases,
licenses or rental agreements with other persons or entities for any portions of City's
Property.
20.13 Quiet Enjoyment. So long as Licensee is not in default under this
Agreement, Licensee shall be entitled to quiet enjoyment of the Premises during the term
of this Agreement, and Licensee shall not be disturbed in its occupancy and use of the
Premises.
20.14 Attachments. Attached hereto are the following, all of which constitute
part of this Agreement:
A. Attachment No. 1, Legal Description of the Property
B. Attachment No. 2, The Premises
C. Attachment No. 3, Licensee's Facilities and Non-Exclusive Site Access Area
D. Attachment No. 4, Agreement to Conditions Imposed
E. Attachment No. 5, License Payment Direction Form
F. Attachment No. 6, Addendum to Standard Form Communications Site License
Agreement
G. Attachment No. 7, Pre-Approved Assignment Entities
***SIGNATURES ON FOLLOWING PAGE***
20
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the
date and year first above written.
ATTEST:
By:
City Clerk
APPROVED AS TO FORM:
By:
City Attorney
CITY OF TUSTIN
By:
David C. Biggs, City Manager
LICENSEE:
MetroPCS Networks California, LLC, a
Delaware limited liability company
By:
21
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the
date and year first above written.
ATTEST:
By:
City Clerk
APPROVED AS TO FORM:
By:
City Attorney
CITY OF TUSTIN
By:
David C. Biggs, City Manager
LICENSEE:
MetroPCS Networks California, LLC, a
Delaware limited liability company
By:
22
Attachment No. 1
Legal Description of Property
All that certain real property situated in the County of Orange, State of California,
described as follows: Parcel 2 of Parcel Map No. 88-316, in the City of Tustin, County of
Orange, State of California, as per map recorded in Book 262, Page(s) 45 and 47 of Parcel
Maps, in the Office of the County Recorder of said County.
Assessor's Parcel Number: 501-112-OS thru 12, 501-112-14 & 501-112-16
Attachment 2
The Premises
See the attached drawings dated 12/29/10, Sheet A-1
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Attachment No. 3
Licensee's Facilities and Non-Exclusive Site Access Area
See the attached drawings dated 12/29/10, Sheets A-2 and A-3 identified with Project
Information: TUSTIN SPORTS PARK LA2866D.
In addition to the approximately 400 square feet depicted on the attached drawings, the
Premises also includes antennas, cable runs and support structures.
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Attachment No. 4
Agreement to Conditions Imposed
EXH181T A
FINDINGS AND CONDITIONS OF APROVAL
DESIGN REVIEW 10-019
12850 ROBINSON DRIVE
The Community Development Department finds and determines as follows:
A. A proper application for Design Review 10-019 was submitted by Pete Shubin of
Sequoia Deployment Services, Inc., on behalf of Royal Street Communications
California, LLC., requesting authorization to install a new light-pole mounted
wireless facility with six (6) panel antennas, one (1) GPS antenna and two (2)
equipment cabinets at the Tustin Sports Park located at 12850 Robinson Drive.
B. The site is within the Planned Community Community Facility (PCCF) zoning
district and designated as Planned Community Public/Institutional in General
Plan Land Use map and is developed with a public sports park. The proposed
wireless facility meets the development standards of the PCCF zoning district.
C. That Tustin City Code Section 7262 requires Design Review for new
aboveground utility facilities and their accessory equipment located on public
property and in the public right-of-way. City Council Resolution No. 01-95
provides guidelines for aboveground utility facilities on public property and within
the public right-of-way and the project has been reviewed for consistency with
the guidelines.
D. That the City's wireless telecommunications consultant, ATS communications,
has identified the project site as an optimal location for a wireless facility.
Furthermore, ATS Communications has reviewed and approved the proposed
project.
E. That the location, size and general appearance of the proposed project as
conditioned is compatible with the surrounding area in that the light pole would be
of a stealth design to be compatible with the existing light poles designed to
illuminate the sports fields and all associated equipment would be screened within
a fence enclosure and surrounded by landscaping screening.
F. That the proposed facility will provide wireless coverage to an area that is currently
deficient of wireless reception.
G. That a license agreement with the City is required prior to installation or operation
of the proposed facility in accordance with Section 7261 of the Tustin City Code.
H. That the location, size, aesthetic features, and general appearance of the
proposed wireless facility will not impair the orderly and harmonious development
of the area, the present or future development therein, or the community as a
whole. In making such findings, the Community Development Director has
considered at least the following items:
Exterior materials and colors. As conditioned, the proposed light pole,
panel antennas, equipment enclosure and landscaping will match the
DR 10-019
12850 Robinson Drive
October 28, 2010
Page 2
existing light poles, equipment enclosure and landscaping in color one
style.
2. Towers structures. As conditioned, the proposed light pole height is
compatible with the existing sports field light poles.
3 Appearance and design relationship of proposed structures to existing
structures and possible future structures in the neighborhood and public
thoroughfares. As conditioned, the proposed project is designed to match
the light poles. The proposed antennas would be located on the light pole
in a configuration similar to existing light-pole mounted wireless facilities
at the subject location. The proposed equipment enclosure has been
designed to accommodate future Royal Street Communications
equipment cabinets, thereby pre-planning the location and screening of
possible future equipment cabinets and reduce the need for future site
modifications.
4. Development Guidelines and criteria as adopted by the City Council.
I. This project is Categorically Exempt pursuant to Section 15303, Class 3 of Title
14, Chapter 3 of the California Code of Regulations (Guidelines for the California
Environmental Quality Act).
II. The Community Development Department hereby approves Design Review 10-019
authorizing the installation of an unmanned wireless telecommunications facility at
12850 Robinson Drive by installing a light pole including six (6) panel antennas, one (1)
GPS antenna, and two (2} equipment cabinets behind a new enclosure, subject to the
following conditions:
GENERAL
(1) 1.1 The proposed project shall substantially conform with the Tustin City Code and
Tustin guidelines and standards and be consistent with submitted plans for the
project date stamped October 28, 2010, on file with the Community
Development Department, as herein modified, or as modified by the Director of
Community Development in accordance with this Exhibit. The Director of
Community Development may also approve subsequent minor modifications to
plans during plan check if such modifications are consistent with provisions of
the Tustin City Code or other applicable regulations.
(1) 1.2 All conditions in this Exhibit shall be complied with subject to review and
approval by the Community Development Department.
(1) 1.3 This approval shall become null and void unless the use is established within
eighteen (i8) months of the date of this Exhibit. Time extensions may be
granted if a written request is received by the Community Development
Department within thirty (30) days prior to expiration.
(1) 1.4 Design Review approval shall remain valid for the term of the Lease Agreement
or License and/or Right-of-Way Agreement including any extension thereof or
as long as the Encroachment Permit is valid. Upon termination or expiration of
the Lease Agreement or License, Encroachment Permit, Right-of-Way
DR 10-019
12850 Robinson Drive
October 28, 2010
Page 3
Agreement or upon the failure of Grantee to build the facility within 180 days of
its approval, the Design Review approval for the facility shall become null and
void and the facility shall be removed within thirty (30) days from such
termination or expiration. Time extensions may be considered if a written
request is received by the Community Development Department within thirty (30)
days prior to expiration.
(1) 1.5 Approval of Design Review 10-019 is contingent upon the applicant signing and
returning to the Community Development Department a notarized "Agreement
to Conditions imposed" form. The forms shall be established by the Director of
Community Development. Design Review approval is also contingent on
establishing a valid License Agreement with the City for the subject project.
{1) 1.6 The applicant shall agree at its sole cost and expense, to defend, indemnify,
and hold harmless the City, its officers, employees, agents, and consultants,
from any claim, action, or proceeding brought by a third party against the City,
its officers, agents, and employees, which seeks to attach, set aside,
challenge, void, or annul an approval of the City Council, the Planning
Commission, or any other decision-making body, including staff, concerning
this project. The City agrees to promptly notify the applicant of any such claim
or action filed against the City and to fully cooperate in the defense of any such
action. The City may, at this sole cost and expense, elect to participate in
defense of any such actions under this condition.
(1) 1.7 Any violation of any of the conditions imposed is subject to issuance of an
Administrative Citation pursuant to Tustin City Code Section 1162(a).
(1) 1.8 The Community Development Department may review Design Review 10-
019 annually or more often to ensure that the project is in compliance with the
conditions of approval contained herein. The Community Development Director
may initiate proceedings to amend or revoke design Review 10-019 if the project
does not comply with the conditions of approval.
(1) 1.9 The applicant shall be responsible for costs associated with any necessary
code enforcement action, including attorney fees, subject to the applicable
notice, hearing, and appeal process as established by the City Council
Ordinance.
(1) 1.10 Any public improvements damaged by the applicant adjacent to this project
shall be repaired and/or replaced by the applicant as determined by the
Engineering Division and shall include but not be limited to curb, gutter, street
paving, and drive apron.
(1) 1.11 The frequencies used by the wireless facility shall not interfere with the Public
Safety 800 MHz Countywide Coordinated Communications System (CCCS).
Radio frequency emissions shall not exceed the radio frequency emission
guidelines of the Federal Communications Commission (FCC), as such
guidelines may be amended from time to time.
SOURCE CODES
(1} STANDARD CONDITION (5) RESPONSIBLE AGENCY REQUIREMENT
(2) CEQA MITIGATION (6) LANDSCAPING GUIDELINES
(3} CALIFORNIA CODEJS (7) PClCC POLICY
(4} DESIGN REVIEW ""' EXCEPTION
DR 10-019
12850 Robinson Drive
October 28, 2010
Page 4
(1) 1.12 Operation of the wireless facility shall be in compliance with the proposed
methods of operation as proposed by the applicant and noted on the plans:
a. The applicant shall provide a 24-hour phone number to which interference
problems may be reported. To ensure continuity on all interference issues
the name, telephone number, fax number, and a-mail address of a "single
point of contact" in its Engineering and Maintenance Departments shall be
provided to the City's designated representative upon activation of the
facility. This condition will also apply to all existing facilities (Royal Street
Communications) in the City of Tustin. The applicant shall file the
accessory equipment identification number, company name, person
responsible for maintenance of the accessory equipment, and the phone
number with the Public Works Department.
b. The applicant shall ensure that licensee or other users shall comply with the
terms and conditions of Design Review 10-019 and shall be responsible for
the failure of any licensee or other users under the control of the applicant
to comply.
c. Radio frequency emissions shall not exceed the radio frequency emission
guidelines of the Federal Communications Commission (FCC), as such
guidelines may be amended from time to time. The applicant shall provide
to the Community Development Department a pre and post-installation test
showing compliance with the guidelines established by the FCC.
USE RESTRICTIONS
'~~ 2.1 The facility shall be limited to six {6) panel antennas mounted on a light pole, one
(1) GPS antenna mounted on the enclosure fence, and two (2) equipment
cabinets located on the subject property. All antennas shall be located as
depicted in the approved plans and associated ground mounted equipment shall
be located within the proposed equipment enclosure.
(1) 2.2 The applicant shall be responsible far obtaining any required approvals or
clearances from the applicable easement holders for work in any easement
areas.
""' 2.3 The light pole and all related facilities shall be regularly maintained and inspected
for safety and aesthetics by the applicant in accordance with the approved plans.
(1) 2.4 The equipment shall not bear any signs or advertising devices (other than
certification, warning, or other required seals or signage).
(1) 2.5 Utilities associated with the proposed facility which are not contained within the
proposed fence enclosure, such as but not limited to telecommunication and
power supplies, shall be located underground.
DR 10-019
12850 Robinson Drive
October 28, 2610
Page 5
(1) 2.6 At building plan check, the applicant shall submit a plan identifying hardscape,
landscape, and other improvements that will be removed under the proposed
plan. Any removal of landscaping necessary to install the aboveground
accessory equipment shall be replaced with landscaping materials similar in
number, type, and size as approved by the Directors of Community
Development and Public Works
(1) 2.7 Prior to issuance of building permits, the applicant shall obtain a license
agreement with the City. The project plans shall make reference to the license
agreement.
"" 2.8 The proposed light pole shall be connected to and controlled by the existing
Sports Field lighting controls.
(1) 2.9 The applicant shall evaluate all requests for co-location on the facility by
additional carrier(s) and make a good-faith determination of each such
requesting carrier's compatibility with the applicant at this location. If, in the
good-faith determination of the applicant, the co-location is technically
compatible, then the applicant shall accommodate such additional carrier if
.applicable business terms can be successfully negotiated. All requests for co-
location shall be reviewed and approved by the City and require a separate
license agreement.
(1} 2.10 Aboveground accessory equipment shall be constructed or treated with
appropriate materials which discourage or repel graffiti and the applicant shall
be responsible for removing graffiti from accessory equipment within forty-eight
(48) hours. The applicant shall be responsible for costs associated with any
necessary enforcement action related to graffiti removal.
(1) 2.11 The aboveground accessory equipment shall be constructed of a material that
wilt be rust resistant (i.e. stainless steel, etc.). The utility provider shall be
responsible for treating any rust by either repainting or any other method
recommended by the manufacturer that eliminates the rust.
(1 } 2.12 Prior to building permit issuance, the applicant shall post a bond with the City to
ensure that facility is built to the specifications and design as represented in the
approved Design Review and building plans. Final design and materials are
subject to review and approval by the City
"' 2.13 The proposed light pole and equipment cabinet shall be compatible with the
existing sports field light poles and equipment cabinets in height, circumference,
color, and design, respectively.
(1) 2.14 The proposed antenna panels shall be painted to match the new light pole.
"" 2.15 The plans shall identify the existing wireless facilities at the Sports Park.
""' 2.16 The proposed light pole shall be designed and constructed to structurally
accommodate and support future co-location wireless facilities.
DR 10-019
12850 Robinson Drive
October 28, 2010
Page 6
NOISE
(5) 3.1 All construction operations including engine warm-up, delivery, and
loading/unloading of equipment and materials shall be subject to the provisions of
the City of Tustin Noise Ordinance, as amended, and may take place only during
the hours of 7:00 AM until 6:00 PM, Monday through Friday and 9:00 AM until 5:00
PM on Saturday unless the Building Official determines that said activity will be in
substantial conformance with the Noise Ordinance and the public health and safety
will not be impaired subject to application being made at the time the permit for the
work is awarded or during the progress of the work.
(7) 3.2 Noise emanating from the equipment, if any, shall not exceed the City's Noise
Standards.
Bt11LDING DIVISION
(1) 4.1 At the time of building permit application, the plans shall comply with the latest
edition of the codes, City Ordinances, State, Federal laws, and regulations as
adapted by the City Council of the City of Tustin.
REDEVELOPMENT AGENCY
"" 5.1 Prior to submitting plans for plan check, the applicant shall revise the plans, to be
consistent with the License Agreement, as follows:
a. "Lease" to "License"
b. °Lessor" to "City"
c. "Lessee" into "licensee"
'"" 5.2 Prior to submitting plans for plan check, the applicant shall confirm with the Parks
and Recreation Department that the illumination level is sufficient for the intended
purpose. Proposed light standard shall provide sufficient light for the adjacent
walking path (sidewalk),
"" 5.3 Prior to submitting plans for plan check, the applicant shall have the project
surveyor field-verify That site conditions have not changed since the September
24, 2009, survey date shown on the approved plans.
""' S.4 Prior to submitting plans for plan check, the applicant shall revise the "Overall Site
Plan" and "Enlarged Site Plan, Equipment Layout & Antenna Layout" sheets to
state that the twelve-foot wide access is anon-exclusive access license, not an
"Access Easement."
"'" 5.5 Prior to submitting plans for plan check, the applicant shall confirm that the
proposed light-pole mounted wireless facility is consistent with the height and
circumference of the existing light poles.
DR 10-019
12850 Robinson Drive
October 28, 2010
Page 7
PUBLIC WORKS DEPARTMENT
(1) 6.1 Construction and Demolition Waste Recycling and Reduction Plan (WRRP).
a. The applicanUcontractor is required to submit a WRRP to the Public Works
Department. The WRRP must indicate how the applicant will comply with
the City's requirement (City Code Section 4351, et al) to recycle at least fifty
(50) percent of the project waste material.
b. The applicant will be required to submit a $50.00 application fee and a cash
security deposit. Based on the review of the submitted Waste Management
Plan, the cash security deposit will be determined by the Public Works
Department in an amount not to exceed five (5) percent of the project's
valuation.
c. Prior to issuance of any permit, the applicant shall submit the required
security deposit in the form of cash, cashier's check, personal check, or
money order made payable to the "City of Tustin".
(1) 6.2 Prior to any work in the public right-of-way (within Tustin Sports Park and within
any public streets), an Encroachment Permit shall be obtained from and
applicable fees paid to the Public Works Department.
(1) 6.3 Prior to issuance of an Encroachment Permit for construction within the public
right-of-way, a 24" x 36" construction area traffic control plan, as prepared by a
California Registered Traffic Engineer, or Civil Engineer experienced in this
type of plan preparation, shall be prepared and submitted to the Public Works
Department for approval.
(1) 6.4 Any damage done to existing landscape, irrigation, pedestrian walkways,
parking, and/or utilities shall be repaired to the satisfaction of the Director of
Parks and Recreation and the City Engineer.
PARKS AND RECREATION DEPARTMENT
(1) 7.1 At plan check, the plans shall identify the following:
a. The light pole fixtures and the intensity/type of light bulbs (i e. foot candles,
etc.)
b. The light pole diameter.
c. The equipment cabinet finishes.
ORANGE COUNTY FIRE AUTHORITY (OCFA)
(1) 8.1 Prior to the issuance of a building permit, the applicant shall submit to the Fire
Chief a plan for review and approval of the proposed battery, "for any system
containing an aggregate quantity of electrolyte with hazard classification(s) in
excess of the permit issuance threshold amount listed in CFC Appendix
DR 10-019
12850 Robinson Drive
October 28, 2010
Page 8
Chapter 1, Section 105." The applicant may contact the OCFA at (714) 573-
6100.
FEES
(1)(5) 9.1 Prior to issuance of building permits, payment shall be made of all applicable
fees, including but not limited to, the following:
a. Building and Planning Plan Check and Permit Fees
b. Encroachment Permit Fees
c. Orange County Fire Authority Fees
(1) 10.2 Within forty-eight (48) hours of approval of the subject project, the applicant
shall deliver to the Community Development Department, a CASHIER'S
CHECK payable to the COUNTY CLERK in the amount of fifty dollars ($50.00)
to enable the City to file the appropriate environmental documentation for the
project. If within such forty-eight (48) hour period the applicant has not
delivered to the Community Development Department the above-noted check,
the statute of limitations for any interested party to challenge the environmental
determination under the provisions of the California Environmental Quality Act
could be significantly lengthened.
Attachment No. 5
License Payment Direction Form
Licensee shall make monthly License Payments to the following:
City of Tustin
Finance Department
300 Centennial Way
Tustin, CA 92780
Attn: Finance Director
Attachment No. 6
Addendum to Standard Form Communications Site License Agreement
N/A
Attachment No. 7
List of Approved Assigns in accordance with Section 20.7
1. American Tower
2. Crown Castle
3. SBA
4. MetroPCS