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14 AGREEMEMT WITH T-MOBILE
AGENDA REPORT Agenda Item Reviewed: City Manager Finance Director <<� MEETING DATE: TO: FROM: JUNE 5, 2012 JEFFREY C. PARKER, CITY MANAGER CITY MANAGER'S OFFICE AND COMMUNITY DEVELOPMENT DEPARTMENT SUBJECT: FEDERAL COURT ORDER APPROVAL OF DESIGN REVIEW 09-033 AND COMMUNICATIONS SITE LICENSE AGREEMENT WITH T-MOBILE WEST CORPORATION FOR A NEW WIRELESS FACILITY AT CEDAR GROVE PARK (11385 PIONEER ROAD) SUMMARY Pursuant to the Federal Court Order of May 9, 2012, approval is requested for Design Review 09-033 and a Communication Site License Agreement between the City and T- Mobile West Corporation (Licensee) for a new wireless facility to be located at Cedar Grove Park (11385 Pioneer Road). RECOMMENDATION That City Council adopt Resolution No. 12-54 approving Design Review 09-033 Authorizing the Installation and Operation of a Wireless Telecommunications Facility on three flagpoles at Cedar Grove Park; and, approve and authorize the City Manager to execute the attached Communications Site License Agreement with T-Mobile West Corporation, a Delaware Corporation. FISCAL IMPACT Under the proposed Communications Site License Agreement ("License") the Licensee will pay $28,800 per year ($2,400 per month) for the right to locate base facilities and antennas on three (3) new flagpoles. This rate is competitive with market rents for similar types of carriers providing voice and data services. Under the License, the initial term is ten (10) years commencing immediately and terminating in 2022. License payments will be escalated annually at a rate of 4.00%. Over the initial term of the License, 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 License, upon notification to the City, for each of two (2) additional five (5) year terms through 2032. City Council Agenda Report June 5, 2012 Communications Site Cedar Grove Park — T-Mobile West Corporation Page 2 In addition to the License payments, the Licensee has agreed to make a one-time non- refundable Capital Contribution of $10,000 as well as a refundable Security Deposit in the amount of $7,200; both of which are due within 30 days of the Effective Date of the Agreement. The License payments and the Capital Contribution may be used for General Fund purposes, such as park improvements. BACKGROUND On April 26, 2011, the Tustin Planning Commission approved the proposed wireless facility consisting of three (3) new flagpoles with a maximum height of forty-three (43) feet, six panel antennas and underground equipment located within the landscaped circle in the parking lot of Cedar Grove Park located at 11385 Pioneer Road. ATS Communications, the City's wireless communications consultant, has reviewed the proposed equipment and tower facilities and 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 City Manager's Office. The proposed flagpoles will replace two (2) existing flag poles currently located in the park. This design was found by the Planning Commission to be compatible with the existing flag poles currently located in the park. After hearings on appeal, the City Council voted 3-2 to overturn the approval of the Design Review, and denied the application on November 1, 2011. On December 5, 2011, T-Mobile filed a lawsuit in Federal Court challenging the denial of the application under the Federal Telecommunication Act. Based on a settlement of litigation, on May 9, 2012, the Federal Court entered an Order requiring the City to approve Design Review Application 09-033 based on the conditions of approval approved by the Planning Commission and a license agreement. (See Order, Attachment 1). As a result, it is recommended that the Council approve the Design Review and License Agreement per the Court Order. The Licensee will be responsible for providing flags for each of the flagpoles on an as needed basis. The Licensee will also be required to provide two (2) sets of flags at a time so that the City may maintain a back-up set when necessary. Illumination for the flagpoles shall be installed by the proposed Licensee and shall include photocells subject to the review and approval of the Parks and Recreation Department and the Community Development Department. The approval of the Design Review is contingent upon the Licensee agreeing to and signing an Agreement to Conditions Imposed. The Agreement to the Conditions Imposed is part of the License Agreement. Christine A. Shingleton , Assistant Executive Dire t ��� ��� Elizabeth A. Binsack � Community Development Director City Council Agenda Report June 5, 2012 Communications Site Cedar Grove Park — T-Mobile West Corporation Page 3 Exhibits: A. United States District Court Order Regarding Conditional Stipulation of Dismissal B. Communications Site License Agreement C. Resolution No. 12-54 EXHIBIT A UNITED STATES DISTRICT COURT ORDER REGARDING CONDITIONAL STIPULATION OF DISMISSAL Ca- 8:11-cv-01854-JVS-RNB Document 17 Filed 05/09/12 Page 1 of 2 Page ID #:132 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 T-MOBILE WEST CORPORATION, CASE NO.: SACV11-1854-JVS (RNBx) a Delaware corporation, 12 Plaintiff, 13 ORDER RE CONDITIONAL v. STIPULATION OF DISMISSAL 14 CITY OF TUSTIN, a municipal 15 corporation incorporated and existing under the laws ofthe State of 16 California; CITY COUNCIL OF THE CITY OF TUSTIN, the duly elected 17 governing body of the City of Tustin, 18 Defendants. 19 20 21 22 23 24 25 26 27 28 1 837165.2 DWT 19182102v3 0048172-000489 Ca- • 8:11-cv-01854-JVS-RNB Document 17 Filed 05/09/12 Page 2 of 2 Page ID #:133 1 Good cause appearing from the application of Plaintiff T-Mobile West 2 Corporation ("T-Mobile"), the Court hereby orders as follows: 3 1. Within 40 days after service of this Order, Defendant City of Tustin (the 4 "City") shall cause T-Mobile's Design Review application 09-033 to be approved 5 subject only to the conditions of approval set forth in Tustin Planning Commission 6 Resolution No. 4163, a copy of which is attached hereto as Exhibit A. 7 2. Provided that T-Mobile and the City agree upon the terms of a license for 8 the use of the City-owned property at Cedar Grove Park, and provided further that T- 9 Mobile satisfies relevant requirements (such as payment of required fees), the City 10 shall, within 30 days after approval of said license, issue building permits to T-Mobile 11 for construction of the approved wireless facilities, except as the City and T-Mobile 12 may otherwise agree in writing. 13 3. City approval of T-Mobile's Design Review application 09-033 and 14 approval of a license for the use of the City-owned property at Cedar Grove Park will 15 moot this action. Therefore, within ten days after approval of T-Mobile's Design 16 Review application by the City and approval of a license for the use of the City-owned 17 property at Cedar Grove Park, T-Mobile shall dismiss this action with prejudice. 18 4. All deadlines in this action are stayed pending resolution of the actions to 19 be taken under paragraphs 1-3 of this Order. 20 21 DATED: May 09, 2012 B 22 JAMES V. SF/NA JUDGE OF THE UNITED STATES 23 DISTRICT COURT 24 25 26 27 28 2 837165.2 DWI 19182102v30048172-000489 Cardona, Miriam From: cacd_ecfmail @cacd.uscourts.gov Sent: Wednesday, May 09, 2012 12:24 PM To: ecfnef @cacd.uscourts.gov Subject: Activity in Case 8:11-cv-01854-JVS-RNB T Mobile West Corporation v. City of Tustin et al Order This is an automatic e-mail message generated by the CM/ECF system. Please 1)0 NOT RESPOND to this e-mail because the mail box is unattended. ***NOTE TO PUBLIC ACCESS USERS*** Judicial Conference of the United States policy permits attorneys of record and parties in a case (including pro se litigants) to receive one free electronic copy of all documents filed electronically, if receipt is required by law or directed by the filer. PACER access fees apply to all other users. To avoid later charges,download a copy of each document during this first viewing. However, if the referenced document is a transcript, the free copy and 30 page limit do not apply. UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA Notice of Electronic Filing The following transaction was entered on 5/9/2012 at 12:23 PM PDT and filed on 5/9/2012 Case Name: T Mobile West Corporation v. City of Tustin et al Case Number: 8:11<v-01854-JVS-RNB Filer: Document Number: 17 Docket Text: ORDER RE Conditional Stipulation of Dismissal by Judge James V. Selna, re Stipulation [16]. All deadlines in this action are stayed pending resolution of the actions to be taken under paragraphs 1-3 of this Order.(twdb) 8:11-cv-01854-JVS-RNB Notice has been electronically mailed to: Camilo Echavarria miriamcardona @dwt.com, camiloechavarriandwt.com M Lois Bobak Ibobak a wss-Iaw.com 8:11-cv-01854-JVS-RNB Notice has been delivered by First Class U. S. Mail or by other means BY THE FILER to : i EXHIBIT B COMMUNICATIONS SITE LICENSE AGREEMENT COMMUNICATIONS SITE LICENSE AGREEMENT This Communications 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 T-Mobile West Corporation, a Delaware corporation (hereinafter"Licensee"). 1. GRANT OF LICENSE. City currently owns property, commonly known as Cedar Grove Park, as legally described on Attachment No. I (the "Property"). City hereby grants a license to Licensee for the purpose of installing and maintaining certain communications equipment consisting of antenna support structure, cable runs, and associated equipment("Licensee's Facilities") on a portion of the Property as legally described on Attachment No. 2 (the "Premises") and as depicted on Attachment No. 3 together with (a) 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 (b) for the installation and maintenance of utility wires, poles, cables, conduits, and pipes under and along a minimum ten foot (10') wide right-of-way extending from the nearest public right-of-way (the "Non-Exclusive Site Access Route") to the Premises to be approved in form and content in City's sole discretion as generally depicted in Attachment No. 4. Licensee shall be responsible for installing and maintaining its required utilities, subject to the limitations set forth in this Agreement and more particularly described as follows: 1.1 All utility wires, poles, cables, conduits and pipes along or under the Non- Exclusive Site Access Route.shall be below ground, except for transformers and meter pedestals in the locations generally depicted in Attachment No. 4. 1.2 Motor vehicles, including trucks shall be limited in their access to Premises on those portions of the Non-Exclusive Site Access Route that are depicted on Attachment No. 4. 1.3 Licensee shall provide twenty-four (24) hours' notice to the City prior to commencing any maintenance or any other activity or work that would interfere with the use of the park or scheduled City activities or programs. Maintenance and work hours that will 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. Licensee shall not interfere with City scheduled activities within Cedar Grove Park. Cedar Grove Park License Agmt Site 4: LA33842E 2. TERM. Unless earlier terminated in accordance with this Agreement, the Term of this Agreement shall be for a Term of ten (10) years ("Initial Term") 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 and No/100 Dollars ($2,400.00) payable to the City on the first of each month. The Licensee shall commence payments upon the Effective Date of this Agreement, provided that the first payment of the License Payment shall be payable within thirty (30) days after the Effective Date. 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, 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. 6, License Payment Direction Form, or as modified in writing by the City upon notice to the Licensee. 3.2 Capital Contribution. Licensee shall pay a one-time non-refundable Capital Contribution to the City within thirty (30) days of the Effective Date, in the amount of Ten Thousand and No/100 Dollars ($10,000.00). 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. Within thirty (30) days of the Effective Date and prior to taking possession of the Premises, Licensee shall pay to City a Security Deposit in the amount equal to the monthly license fee for three (3) months, or an amount of Seven Thousand Two Hundred and No/100 Dollars ($7,200.00). 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 and No/I00 Dollars ($7,200.00), naming the City as covered obligee. Cedar Grove Park License Agmt 2 Site LA33842E 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 by law to remedy an Event of Default. 3.3.3 Maintaining 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 to replenish their performance bond or restore the 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 the City. 3.4 Property Taxes and Fees. Licensee shall pay all applicable real property taxes, and/or all possessory interest taxes or fees prior to delinquency thereof. Licensee shall also pay and discharge punctually, as and when due, any and all taxes upon 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. Monthly payments shall be subject to an annual License Payment increase of four percent(4%) per year, to be increased on the first anniversary of the Effective Date, and on each successive anniversary thereafter. Cedar Grove Park License Agnl 3 Site#: LA33842E 5. LICENSE AGREEMENT EXTENSIONS. Provided that Licensee is not in default in the performance of this Agreement, Licensee shall have the option to extend the term 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 License terms related to insurance coverage in any Renewal Term per City policy. The monthly License 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 expiration of the Initial Term or Renewal Term, as the case may be. 6. GOVERNMENTAL APPROVALS. It is understood and agreed that Licensee's ability to use the Premises is contingent upon its obtaining all of the certificates, 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 Agreement 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 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 Manager in writing by personal service, or first class mail, or by a nationally recognized courier, 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 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. Cedar Grove Park License Agnt 4 Site#: LA33842E 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 responsibility 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 appurtenances caused by Licensee. Licensee shall repair and/or replace said damages. If Licensee fails to repair such damage within thirty (30) days of its receipt of written notice from City, City may repair and/or replace such damage at Licensee's cost and expense. 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 Manager to Licensee of a written invoice and supporting documentation. If any payment to be made by Licensee is not received, 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, at the default rate of ten (10) percent. 7.3 Noticing on Premises. Licensee shall install any warning signs on or about the Premises required by federal, state or local law. Cedar Grove Park License Agmt 5 Site k: LA33842E 7.4 Licensee Maintenance Notification. Licensee shall provide notification to the City Manager five (5) days prior to any construction work on the Licensee's Facilities conducted by Licensee or its agents. Said work hours are subject to approval by the City. Licensee in providing regular maintenance to the Licensee's Facilities shall provide twenty-four (24) hour notice to the City Manager prior to commencing any maintenance that would interfere with the use of City facilities or scheduled events. Maintenance and work hours that will 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. 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 in a condition that approximates the initially installed Facilities including landscaping and exterior finishes. In the event any portion of its 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 by the 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, Licensee shall, promptly after receipt of written demand by the City Manager 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 Manager to Licensee. This time period for completion of any required work may be extended with written authorization from the City Manager 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 Manager 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 of written demand therefore by City. If any payment to be made by Licensee is not received, 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, at the default rate of ten (10) percent. Cedar Grove Park License Agnt 6 Site N: LA33842E 8. CITY'S USE OF PREMISES. 8.1 City Business. Notwithstanding this grant of license right to Licensee, City and the public shall have the right to conduct City business on the Property and within the Non-Exclusive Site Access Route, excluding the Premises. Nothing in this 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. "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, damage 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. Licensee further agrees that City, and not Licensee, shall retain ownership of any further license rights with respect to co-location of communication facilities on the Property. Further, City shall retain the authority and absolute right to enter into a license agreement with other mobile/wireless communications providers (an "Additional Licensee") to utilize space on an antenna supported structure installed by Licensee. 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 will reimburse Licensee for a percentage of Licensee's costs to originally purchase, construct, maintain, repair and remove the antenna tower structure in any subsequent license agreement and further provide that the Additional Licensee shall not interfere with the operations of Licensee's Facilities. City Manager shall require that Additional Licensee also reimburse Licensee for a portion of costs to maintain and repair the antenna support structure in any subsequent license agreement. Provisions of any subsequent license to an Additional Licensee shall also provide that in no event shall Licensee be responsible for any Additional Licensee's equipment installed upon the antenna support structure. 9. INDEMNITY. 9.1 Licensee Indemnification of City. To the maximum extent permitted by law, Licensee shall defend, 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 Cedar Grove Park License Agmt 7 Site#: LA33842E 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 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 Agreement or otherwise; 9.1.2.1 Any act, omission, or negligence of Licensee its officers, agents, employees; 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 or any applicable federal, state, regional or municipal law, ordinance, rule or regulation related to its 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 its general contractor 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 Manager 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 Manager prior to commencing with work. The Licensee shall provide as follows (1)commercial general liability insurance shall be primary as to Licensee's negligence and not contributing with any other insurance maintained by City, and shall name the City and any related entity of the City, as appropriate, as additional insureds; (2) 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 (3) if Licensee is self insured for Workers' Compensation, Licensee shall submit to City a Cedar Grove Park License Agmt 8 Site#: LA33842E 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 01). 10.1.2 Workers' Compensation Insurance. To the extent that Licensee has employees, workers' compensation insurance in an amount and form meeting all applicable requirements of the California Labor Code, covering all employees of Licensee and all risks to such persons. 10.1.3 Deductibles. 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. 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 Manager before or upon Licensee execution of the Agreement. 10.1.6 Vehicle Insurance. Licensee shall maintain sufficient automobile liability insurance on any vehicle accessing the 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 01 covering Automobile Liability, Code I (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 Cedar Grove Park License Agmt 9 Site#: LA33842E 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. 11.2 Non-Interference by Licensee of City 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 Manager 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. The City is responsible for maintaining its own equipment. The space to be made available will not create interference with Licensee's communications operations. City entities will be afforded 24-hour access to City's equipment at the Premises. In addition, the City will be provided "power backup" by Licensee at the Premises, if available. 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. 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. A Non-monetary Default shall be cured (i) within thirty (30) days after receipt of written notice from the Injured Party, or (ii) at the Injured Party's sole discretion a longer period of time as may be granted in writing for the cure period if the nature of the cure is Cedar Grove Park License Agent 10 Site#: LA33842E 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 Injured 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 20.9 of this Agreement. 13.4.2 Seek Performance. Seek 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. 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 Cedar Grove Park License Agmt 11 Site#: LA33842E 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 determined by the parties. 16. TERMINATION. 16.1. Compelled Termination. If, during the License 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 may terminate this Agreement upon fourteen (14) days written notice to Licensee. 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) the Property or Licensee's 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 as liquidated damages, or (iii) 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 liquidated Cedar Grove Park License Agmt 12 Site 4: LA33842E damages, or (iv) 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 be 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 License Payment 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 consecutive months. City is under no obligation to contact Licensee regarding status of Licensee's 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, City may terminate this Agreement, or upon thirty (30) days prior written notice if 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. Any time 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 (20) years. 17.2. Exercising Right to Relocation. City Manager 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 Manager 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 Manager may thereafter propose another relocation site by Notice to Licensee in the manner set forth above. If the City Manager and Licensee fail to find an alternative site for relocation within six (6) months of the Cedar Grove Park License Agmt 13 Site k: LA33842E Notice being delivered by the City Manager, this Agreement shall be terminated pursuant 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 Attachment No. 2 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 its 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 Manager 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 as requested by the City Manager, the City Manager 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 a post-installation test to confirm that the "planning and frequency coordination" of Licensee's Facilities 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 a Division-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. Cedar Grove Park License Agmt 14 Site#: LA33842E To ensure continuity on all interference issues the name, telephone number, and address of a "single point of contact" in its Network Operations Center shall be provided to the City Manager prior to activation of Licensee's Facilities. 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 may be located on the subject property. This section has been complied with per Attachment No. 8, Statement of Compliance with FCC/FAA. 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 e-mail address of a "single point of contact" in its Engineering and Maintenance Departments shall be provided to the City Manager upon activation of the facility. 20. MISCELLANEOUS PROVISIONS. 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. Cedar Grove Park License Agmt 15 Site#: LA33842E 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 Rights. 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 Attorney'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 Assignment. Licensee shall not assign, collocate within the Premises, transfer or sublet any right or interest in this Agreement without written approval of the City Manager which such approval shall not be unreasonably be withheld provided, however, that Licensee may, without City's Approval, assign its interest in this Agreement 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. Upon assignment, Licensee shall be relieved of all future performance, liabilities, and obligations under this Agreement, provided that the assignee assumes all of Licensee's obligations herein. 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: Cedar Grove Park License Agmt 16 Site k: LA33842E To City: City of Tustin 300 Centennial Way Tustin, California 92780 Attention: City Manager's Office With a copy to: President ATS Communications 22642 Lambert Street, Suite 402 Lake Forest, CA 92630 To Licensee: T-Mobile USA, Inc. 12920 SE 38th Street Bellevue, WA 98006 Attn: PCS Lease Administrator(Site #: LA33842E) With a copy to: Attn: Legal Dept. With a copy to: T-Mobile West Corporation 2008 McGaw Avenue Irvine, CA 92614 Attn: Lease Administration Manager (Site#: LA33842E) With a copy to: Attn: Legal Dept. 20.10 Memorandum of License. Each Party agrees to cooperate with the other in mutually executing a Memorandum of License if desired by either Party, in a form and content as determined by the City. 20.11 Time is of the Essence. Time is of the essence with respect to any act to be performed under this Agreement. 20.12 This License shall be binding upon and inure to the benefit of the parties, their respective successors, personal representative and assigns. 20.13 Attachments. Attached hereto are the following, all of which constitute part of this Agreement: Cedar Grove Park License Agmt 17 Site k: LA33842E A. Attachment No. 1, Legal Description of Property (Cedar Grove Park) B. Attachment No. 2, Description of Premises C. Attachment No. 3, Site Plan of Premises and Depiction of Licensee's Facilities D. Attachment No. 4, Depiction of Non-Exclusive Site Access Route E. Attachment No. 5, Agreement to Conditions Imposed F. Attachment No. 6, License Payment Direction Form G. Attachment No. 7, Addendum H. Attachment No. 8, Statement of Compliance with FCC/FAA [SIGNATURE PAGE FOLLOWS] Cedar Grove Park License Agmt 18 Site#: LA33842E IN WITNESS WHEREOF,the parties hereto have executed this Agreement the date and year first above written. ATTEST: CITY OF TUSTIN By: By: City Clerk City Manager APPROVED AS TO FORM: By: City Attorney LICENSEE: By: Cedar Grove Park License Agmt 19 Site#: LA33842E Attachment No. 1 Legal Description of Property (Cedar Grove Park) THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF TUSTIN, COUNTY OF ORANGE, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS: LOT 22 OF TRACT NO. 13627, AS SHOWN ON A MAP FILED IN BOOK 644, PAGES 1 TO 20, INCLUSIVE OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA. EXCEPTING FROM LOTS 16 AND 22 ALL OIL, OIL RIGHTS, MINERALS, MINERAL RIGHTS, NATURAL GAS, NATURAL GAS RIGHTS, AND OTHER HYDROCARBONS BY WHATSOEVER NAME KNOWN, GEOTHERMAL STEAM,AND ALL PRODUCTS DERIVED FROM ANY OF THE FOREGOING,THAT MAY BE WITHIN OR UNDER THE PARCEL OF LAND HEREINABOVE DESCRIBED,TOGETHER WITH THE PERPETUAL RIGHT OF DRILLING, MINING,EXPLORING AND OPERATING THEREFOR,AND STORING IN AND REMOVING THE SAME FROM SAID LAND OR ANY OTHER LAND, INCLUDING THE RIGHT TO WHIPSTOCK OR DIRECTIONALLY DRILL AND MINE FROM LANDS OTHER THAN THOSE HEREINABOVE DESCRIBED,OIL OR GAS WELLS,TUNNELS AND SHAFTS INTO,THROUGH OR ACROSS THE SUBSURFACE OF THE LAND HEREINABOVE DESCRIBED,AND TO BOTTOM SUCH WHIPSTOCKED OR DIRECTIONALLY DRILLED WELLS,TUNNELS AND SHAFTS UNDER AND BENEATH OR BEYOND THE EXTERIOR LIMITS THEREOF,AND TO REDRILL,RETUNNEL,EQUIP,MAINTAIN,REPAIR,DEEPEN AND OPERATE ANY SUCH WELLS OR MINES, WITHOUT, HOWEVER,THE RIGHT TO DRILL, MINE, STORE, EXPLORE AND OPERATE THROUGH THE SURFACE OR THE UPPER 500 FEET OF THE SUBSURFACE OF THE LAND HEREINABOVE DESCRIBED, AS RESERVED BY THE IRVINE COMPANY IN THE DEEDS RECORDED OCTOBER 20, 1989 AS INSTRUMENT NO.89-565751 AND 89-565752 BOTH OF OFFICIAL RECORDS. APN: 502-451-25, 27, 30, 31 Cedar Grove Park License Agmt Site N: LA33842E Attachment No. 2 Description of Premises See the attached drawings dated 04/07/11 and date stamped by the Community Development Department on 04/26/11, Sheets A-1 & A-2, identified with Site Information: Cedar Grove Flagpoles, LA33842E. Cedar Grove Park License Agmt Site#: LA33842E W 6; a e s 2 W y ."' 2 1334 Mil I" °J ti b ' UG €WI D °� 0a bE • E i Q °< 4 �,i �i�. E k= pp R , i W 5 - 9 N 1 Ie S & a E J B 7 a 9 Pi a . R o 1 N rp > ` \ `. 2a i a' '' te \ °N N• liMP s ~ ¢� \ \ ° ' (Ng ,/ ff ', n �� , a ;.., Ill . �y �_ � N \ \ — . O ' °9 \ °°te i a a° � .--.-7::::: 1 f o t C I .. r e r, . it•e �ya. ��. • tin B �\ 'c1i l -�J m 2^. `t. 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J k 1��I /^ 7 !I il 1 k 7 / a Jr P eh M lam` f • '\ a ( \ / '1 / • \, i F IV io e1 i! 1111 5, o 1iNN _ A , gi a i gil911191 it ; 915 Ill I: 11 a 14 •g ,; 'ESA Elk FIN 9 ' IAA 6 e N p it 41 it it i11 ig iii ihi i I I I I i it it i ! 00 000 0 a 000000000000000 z w Cedar Grove Park License Agmt Site#: LA33842E Attachment No. 3 Site Plan of Premises and Depiction of Licensee's Facilities See the attached drawings dated 04/07/11 and date stamped by the Community Development Department on 04/26/11, Sheets A-2, A-3, & A-4 identified with Site Information: Cedar Grove Flagpoles, LA33842E. In addition to the approximately 167 square feet depicted on the attached drawings, the Premises also includes space for coax cables and conduits to connect the underground vault with the antennas. Cedar Grove Park License Agmt Site#: LA33842E e` ©ng©111,,1 >CO LU Eta V Bps di`� arc H cl N isi ci -© nu•i■n° f ¢ w i `J 1/� " `' 0 \� i_2._ rc, 0. 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I �trl�/i�, :!Ili; i.11:I z p6i O r,i:; / F 11:1 o \ w z 3 Cedar Grove Park License Agmt Site 4: LA33842E 4,` Ia C v t 9 W y —= ¢e a ^^ 0W 2' 0' v 1 U ; t 3E VF+f'e° 9 d d i&- ii€ p a It �`7 L�e�g�g.�;Q 14 ` P \ QQ (Q7` �2 t t a, N } i 2;i7 �I" �v 111 (1!@ :::11- iiidi, R, t t ii : 4. :: m €; fi t r , @tt ii i f R tg Li& . Jrii y is4eli ? 1 i9" iiL.d! 111 � � 11i ! ii � Jj ij fi ?� 3H 16Y Q� ie }PQ 6� :'4 PH44 f fF !+ v I(/I(/ e� }e i If/ / /I /� �i,1 ?WA iii/ pvii e 9 4; z a ;Q. iI ii i ii r q Via} 4I1® iii iii ��i 8l .. � �''': �i !1 ii q R 1 IPI ft�t :i 1 f!1 a H If I , 46 I c 1 411; c a 2 o N Cedar Grove Park License Agmt Site#: LA33842E Attachment No. 4 Depiction of Non-Exclusive Site Access Route See the attached drawings dated 04/07/11 and date stamped by the Community Development Department on 04/26/11, Sheet A-I, identified with Site Information: Cedar Grove Flagpoles, LA33842E. 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I S ,i i€ i5ii $ ABi ® @llniiii.ill iliii @i E 1 1 1 1 a 0 0 0 0 00000000000 0 0 0 © 0000 H i g 1 if _ N Cedar Grove Park License Agmt Site#: LA33842E Attachment No. 5 Agreement to Conditions Imposed EXHIBIT A RESOLUTION NO. 12-54 DESIGN REVIEW 09-033 CONDITIONS OF APPROVAL (1) 1.1 The proposed project shall substantially conform with the submitted plans for the project date stamped June 5, 2012, on file with the Community Development Department, as herein modified, or as modified by the Community Development Director in accordance with this Exhibit. The Director 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 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 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. At the time of removal, restoration of the area and reinstallation of the original flagpoles is required. Time extensions may be considered if a written request is received by the Community Development Department within thirty (30) days prior to expiration. (1) 1.4 Approval of Design Review 09-033 is contingent upon the applicant and property owner signing and returning to the Community Development Department a notarized "Agreement to Conditions Imposed" form and the property owner signing and recording with the County Clerk-Recorder a notarized "Notice of Discretionary Permit Approval and Conditions of Approval" form. The forms shall be established by the Director of Community Development, and evidence of recordation shall be provided to the Community Development Department. SOURCE CODES (1) STANDARD CONDITION (5) RESPONSIBLE AGENCY REQUIREMENTS (2) CEQA MITIGATION (6) LANDSCAPING GUIDELINES (3) UNIFORM BUILDING CODE/S (7) PC/CC POLICY (4) DESIGN REVIEW *** EXCEPTIONS Cedar Grove Park License Agmt Site:LA33842E Exhibit A City Council Resolution No. 12-54 Page 2 (1) 1.5 Any violation of any of the conditions imposed is subject to the issuance of an administrative citation pursuant to Section 1162(a) of the Tustin City Code. (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 attack, 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 its sole cost and expense, elect to participate in defense of any such action under this condition. (1) 1.7 The Community Development Department may review Design Review 09- 033 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 09-033 if the project does not comply with the conditions of approval. (1) 1.8 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 by ordinance. (1) 1.9 The frequencies used by the wireless facility shall not interfere with the Public Safety 800 MHz Countywide Coordinated Communications System (CCCS). (1) 1.10 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 e-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. (1) 1.11 The applicant shall ensure that a lessee or other users shall comply with the terms and conditions of Design review 09-033 and shall be responsible for the failure of any lessee or other users under the control of the applicant to comply. Cedar Grove Park License Agmt Site#:LA33842E Exhibit A City Council Resolution No. 12-54 Page 3 (1) 1.12 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 (1) 2.1 The facility shall be limited to three (3) flagpoles with interior antennae and associated equipment. Two (2) of the flagpoles are to be at a maximum height of forty (40) feet with the third flagpole of a maximum height of forty- three (43) feet per the approved plans. All antennas shall be located as depicted in the approved plans and associated equipment shall be located within the underground vault. (1) 2.2 No trees shall be relocated or removed to accommodate the project. The applicant shall make a note to this effect on the plans. (1) 2.3 The applicant shall be responsible for obtaining any required approvals or clearances from the applicable easement holders for work in any easement areas. (1) 2.4 The structure and all related facilities shall be regularly maintained and inspected for safety and aesthetics by the applicant in accordance with the approved plans. The applicant shall provide flags for the facility as needed to the City's Parks and Recreation Department. The applicant shall provide two (2) sets of flags at a time so that the City may maintain a back-up set when necessary. Illumination for the flagpoles shall be installed by the applicant and shall include photocells subject to the review and approval of the Parks and Recreation Department and the Community Development Department. (1) 2.5 Any plaques removed as a result of the installation of the facility shall be replaced by the applicant. (1) 2.6 The equipment shall not bear any signs or advertising devices (other than certification, warning, or other required seals or signage). (1) 2.7 Utilities associated with the proposed facility which are not contained within the underground vault, such as but not limited to meter pedestals, shall be located in landscaped areas and screened. Exact locations of said utilities shall be approved by the City of Tustin prior to installation. Cedar Grove Park License Agmt Site'LA33842E Exhibit A City Council Resolution No. 12-54 Page 4 (1) 2.8 At building plan check, the applicant shall submit a plan identifying hardscape, landscape, and other improvements that will be removed under the proposed plan. (1) 2.9 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. (1) 2.10 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) 2.11 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. (1) 2.12 All facility equipment including the flagpoles and any 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) 2.13 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) 2.14 The aboveground accessory equipment shall be constructed of a material that will 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) 2.15 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. Cedar Grove Park License Agmt Site#:LA33842E Exhibit A City Council Resolution No. 12-54 Page 5 NOISE (1) 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 a.m. until 6:00 p.m., Monday through Friday and 9:00 a.m. until 5:00 p.m. 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 progress of the work. (1) 3.2 Noise emanating from the equipment, if any, shall not exceed the City's Noise Ordinance. BUILDING 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 adopted by the City Council of the City of Tustin. PUBLIC WORKS DEPARTMENT (1) 5.1 Construction and Demolition Waste Recycling and Reduction Plan (WRRP). A. The applicant/contractor 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 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 5 percent of the project's valuation. C. Prior to issuance of a 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." Cedar Grove Park License Agmt Site#:LA33842E Exhibit A City Council Resolution No. 12-54 Page 6 (1) 5.2 Prior to any work in the public right-of-way (within Cedar Grove Park and within any public streets), an Encroachment Permit shall be obtained from and applicable fees paid to the Public Works Department. (1) 5.3 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) 5.4 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. ORANGE COUNTY FIRE AUTHORITY (OCFA) (5) 6.1 Special Equipment and Systems: Prior to the issuance of a building permit, the applicant shall submit to the Fire Chief a plan for review and approval of the lead acid battery system. The plans shall be in accordance with Chapter 6, Section 608 of the 2007 California Fire Code." The applicant may contact the OCFA at (714) 573-6100 or visit the OCFA website to obtain a copy of the "Guidelines for Completing Chemical Classification Packets." FEES (1) 7.1 Prior to issuance of any building permits, payment shall be made of all applicable fees, including but not limited to, the following. Payments shall be required based upon those rates in effect at the time of payment and are subject to change. a. All applicable Building and Planning plan check and permit fees and Orange County Fire Authority fees shall be paid to the Community Development Department. b. 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. Cedar Grove Park License Agmt Site#:LA33842E Attachment No. 6 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 The City shall be notified by the Licensee in the event that an entity or person other than the Licensee makes monthly Licensee Payments to the City. The notice shall include a statement indicating that the person or entity making the payment understands that said person or entity obtains no right or interest in either the License or the property subject to the License as a result of the payment. Nothing in this Attachment waives the rights of the City under section 20.7, Assignment,of this License. 852569.1 Attachment No. 7 Addendum [NONE] Cedar Grove Park License Agmt Site#: LA33842E Attachment No. 8 Statement of Compliance with FCC/FAA T ■ ■M®bile°■ ■ ■ 2008 McGaw Ave. Irvine,CA 92614 November 2nd, 2010 STATEMENT OF COMPLIANCE WITH FCC/FAA This Letter is to confirm that T-Mobile USA Inc. ("T-Mobile")'s proposed cell site located at 11385 Pioneer Rd, Tustin, CA 92782 site LA33842D Cedar Grove Park will comply with the FCC regulations regarding PCS frequency emissions. T-Mobile operational frequencies of 1970.4 to 1979.6 MHz, 2110 to 2135 and 2145 to 2155 MHz for the transmit and 1890.4 to 1899.6MHz, 1710 to 1735 MHz and 1745 to 1755 MHz for the receive are well outside the frequency bands associated with Radio Stations,Television Stations, Police, Fire and Emergency services. T-Mobile obtained a broadcast license in the C Block and F Block, 1970.4 to 1979.6 MHz, 2110 to 2135 and 2145 to 2155 MHz for the transmit and 1890.4 to 1899.6MHz, 1710 to 1735 MHz and 1745 to 1755 MHz for the receive. Pursuant to FCC regulations 47 CFR part 24, subpart E, sections 24.200 through 24.238—T-Mobile must comply with the stated directives for Broadband PCS providers. T-Mobile will meet or exceed the stated requirements for Broadband PCS providers. These requirements include but are not limited to the following: 1) Frequencies: allocated or licensed frequency bands for a PCS provider. 2) Frequency Stability This ensures that the fundamental frequency authorized stays within the authorized frequency block. 3) Interference Protection: Standards set forth to ensure a PCS provider does not interfere with any existing PCS, Mobile Radio,AM or FM Broadcast radio station,VHF or UHF television station, Police, Fire or Emergency services. 4) In according with the FCC regulations, should T-Mobile receive notification from the FCC or other provider that harmful interference is being caused by their equipment, T-Mobile must either immediately reduce the power to the point of no interference, cease operation, or take such immediate corrective action as is necessary to eliminate the harmful interference. Gilberto Santiago RF Eng LA/OC -Contractor Mobile:310 402 3401 Desk: 949 567 6848 Fax: 949 567 6810' 'I'• • •Mobile• Cedar Grove Park License Agmt Site#: LA33842E EXHIBIT C RESOLUTION NO. 12-54 RESOLUTION NO. 12-54 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF TUSTIN, APPROVING DESIGN REVIEW 09-033 AUTHORIZING THE INSTALLATION AND OPERATION OF A WIRELESS TELECOMMMUNICATIONS FACILITY CONSISTING OF: 1W0 (2) FLAGPOLES WITH A HEIGHT OF FORTY (40) FEET; ONE (1) FLAGPOLE WITH A HEIGHT OF FORTY-THREE (43) FEET; AND, UNDERGROUND EQUIPMENT LOCATED WITHIN A LANDSCAPED CIRCLE IN THE PARKING LOT OF CEDAR GROVE PARK LOCATED AT 11385 PIONEER ROAD. The City Council of the City of Tustin does hereby resolve as follows: A. That an application for Design Review 09-033 was filed by T-Mobile West Corporation requesting to install and operate a wireless telecommunications facility consisting of: two (2) flagpoles with a height of forty (40) feet; one (1) flagpole with a height of forty-three (43) feet; and, underground equipment located within the landscaped circle in the parking lot of Cedar Grove Park located at 11385 Pioneer Road. B. That the site is zoned as Planned Community Residential, designated as Community Park by the East Tustin Specific Plan Land Use Plan; and designated as Planned Community Residential by the General Plan. C. That the Community Development Director fonNarded the Design Review application to the City Zoning Administrator to allow for a public meeting to accept comments from the public regarding the proposed project. D. That a public meeting was duly called, noticed, and held for Design Review 09-033 on October 20, 2010, by the Zoning Administrator. E. That on October 27, 2010, the Zoning Administrator vacated the decision on the subject project and deferred the matter to the Planning Commission in accordance with Section 9299b of the Tustin City Code. F. That a public meeting was duly called, noticed, and held on said application on December 14, 2010 before the Planning Commission, and continued to the January 25, 2011 Planning Commission meeting. At the January 25, 2011 meeting before the Planning Commission, the applicant requested a continuance to a date uncertain in order to redesign the proposed facility. The Planning Commission granted the continuance to a date uncertain. G. That on January 6, 2011, that applicant held a public outreach meeting at the Tustin Public Library. City Council Resolution No. 12-54 Appeal of DR 09-033 Page 2 H. That a public meeting was duly called, noticed, and held on said application on April 26, 2011, before the Planning Commission. That on April 26, 2011, the Planning Commission adopted Resolution No. 4163, approving Design Review 09-033. J. That on May 6, 2011, an appeal of the Planning Commission's decision to approve Design Review 09-033 was filed by the City's Mayor Pro Tem. K. That a public hearing was duly called, noticed, and held for said appeal on July 19, 2011, before the City Council, and continued to the October 18, 2011, City Council meeting. On October 18, 2011, the City Council voted 3-2 and on November 1, 2011, adopted Resolution No. 11-47 reversing the Planning Commission's decision and denying Design Review 09-033. L. On December 5, 2011, T-Mobile filed a lawsuit in Federal Court, challenging the denial of the application under the Federal Communications Act. Based on a settlement of litigation on May 9, 2012, the Federal Court ordered the City to approve Design Review 09-033 based on the Planning Commission's approval and license agreement. M. The proposed project is consistent with the City's Wireless Master Plan. N. That the proposed wireless facility complies with Tustin City Code Section 7260 et al. requiring Design Review of Aboveground Utility Facilities on Public Property and in the Public Right-of-Way and with City Council Resolution No. 01-95 establishing Design Review guidelines for aboveground utility facilities on public property and in the public right-of- way. Wireless facilities are considered utilities and typically located within the public property and the public right-of-way. O. The location, size and general appearance of the proposed project as conditioned is compatible with the surrounding area in that the flag poles would be of a stealth design and replace existing flagpoles in the same location. All associated equipment would be located within an underground vault with venting screened by landscaping. P. That the proposed facility will provide wireless coverage to an area that is currently deficient of wireless reception. Q. The project site is located within a landscaped circle in the parking lot of Cedar Grove Park and away from public recreation area. The proposed flagpole facility in the parking lot will not interfere with the public's use of the park and will not exclude the public from any portion of the park. R. The proposed wireless facility is incidental to the use of the property for City Council Resolution No. 12-54 Appeal of DR 09-033 Page 3 park purposes and would not divert Cedar Grove Park from its intended use as a public park. S. 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. T. 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 City Council has considered at least the following items: 1. Height, bulk, and area of proposed structure — The proposed wireless facility designed as a set of flagpoles, each with a diameter of fourteen (14) inches with two (2) flagpoles with a height of forty (40) feet and a third flagpole with a height of forty-three (43) feet, is compatible with the existing pair of twenty-six (26) foot high flagpoles that would be replaced. Accessory equipment would be located adjacent to the flagpoles within an underground vault with vents screened by landscaping so as to not be visible. 2. Setbacks and site planning — The project site is located in a landscaped circle within the parking lot of Cedar Grove Park where the proposed flagpoles would have the same location and setbacks as those existing. 3. Exterior material and colors — Materials of the proposed flagpoles would be metal with a fiberglass portion near the antennas for radio frequency transparency and painted grey to match typical flagpoles. 4. Towers and antennae — Each flagpole would contain two internal antennas for a total of six (6) antennas at the facility. Antennas would be located towards the top of the flagpoles and completely concealed so as not to be visible. 5. Landscaping and parking area design and traffic circulation — The proposed facility will not require any modifications to the parking lot and thus have no impact on circulation. No trees will be removed as a result of the project. Additional landscaping would be provided to screen the vents of the underground equipment. 6. Location and appearance of equipment located outside of an enclosed structure — All accessory equipment would be located within an underground vault so as not to be visible. Any utilities such as meter pedestals would be screened with landscaping. 7. Physical relationship of proposed structure to existing structures — The City Council Resolution No. 12-54 Appeal of DR 09-033 Page 4 proposed flagpoles would replace existing flagpoles at the site to minimize any potential impact. Flag poles are common in public parks and consistent with public park purposes. 8. Appearance and design relationship of proposed structures to existing structures and possible future structures in the neighborhood and public thoroughfares — It is not anticipated that additional structures will be constructed within the park. The flag sizes are in proportion to the new flagpoles. 9. Development guidelines and criteria as adopted by the City Council — The proposed facility complies with the City Council's adopted Design Guidelines for Aboveground Utility Facilities and their Accessory Equipment. U. That the proposed wireless facility complies with the City Council Resolution No. 01-95 (Design Guidelines for Aboveground Utility Facilities and their Accessory Equipment) in that: 1. Location — The project site is located in a landscaped circle within the parking lot of Cedar Grove Park. This area within the parking lot is not used for park activities or recreation; therefore, no impact to the public's use of the park is anticipated. The project site is also a considerable distance from adjoining properties. 2. Stealth Facility—The proposed wireless facility is of a stealth design as flagpoles. The facility will in fact replace existing flagpoles with new ones. All accessory equipment will be located underground within a vault enclosure. 3. Co-location - The proposed facility cannot accommodate additional carriers as currently proposed; however, future technological advances may allow for co-location. 4. Colors — The flagpoles would be painted gray to match the color of the existing flagpoles at the project site. 5. Screening — Accessory equipment would be located underground and vents for the vault would be screened by landscaping. 6. Landscape — No trees would be removed as a result of the proposed facility and additional landscaping would be provided to screen the vents for the underground vault. 7. Signage — Only signage related to certifications and warnings will be allowed at the facility in accordance with proposed Condition 2.5. No advertising would be permitted on the facility. 8. Accessory Equipment — All accessory equipment would be located within an underground vault adjacent to the flagpoles. 9. Required Removal — Upon termination of the license agreement, the City Council Resolution No. 12-54 Appeal of DR 09-033 Page 5 proposed facility would be required to be removed. At the time of removal, restoration of the area and reinstallation of the original flagpoles would be required. 10. Undergrounding — All of the utilities servicing the project site would be located underground. Utilities are proposed to run from the right-of- way near the intersection of Pioneer Way and Pioneer Road. V. That this project is Categorically Exempt pursuant to Section 15303, Class 3, Title 14, Chapter 3 of the California Code of Regulations (Guidelines for the California Environmental Quality Act). II. The City Council hereby approves Design Review 09-033 to install and operate a wireless telecommunications facility consisting of: two (2) flagpoles with a height of forty (40) feet; one (1) flagpole with a height of forty-three (43) feet; and, underground equipment located within the landscaped circle in the parking lot of Cedar Grove Park located at 11385 Pioneer Road, subject to the conditions contained within Exhibit A attached hereto. PASSED AND ADOPTED by the City Council of the City of Tustin at a regular meeting held on the 5th day of June, 2012. JOHN NIELSEN MAYOR ATTEST: PAMELA STOKER CITY CLERK City Council Resolution No. 12-54 Appeal of DR 09-033 Page 6 STATE OF CALIFORNIA ) COUNTY OF ORANGE ) CITY OF TUSTIN I, Pamela Stoker, City Clerk and ex-officio Clerk of the City Council of the City of Tustin, California, do hereby certify that the whole number of the members of the City Council of the City of Tustin is five; that the above and foregoing Resolution No. 12-54 was duly passed and adopted at a regular meeting of the Tustin City Council, held on the 5th day of June, 2012, by the following vote: COUNCILMEMBER AYES: COUNCILMEMBER NOES: COUNCILMEMBER ABSTAINED: COUNCILMEMBER ABSENT: PAMELA STOKER CITY CLERK EXHIBIT A RESOLUTION NO. 12-54 DESIGN REVIEW 09-033 CONDITIONS OF APPROVAL (1) 1.1 The proposed project shall substantially conform with the submitted plans for the project date stamped June 5, 2012, on file with the Community Development Department, as herein modified, or as modified by the Community Development Director in accordance with this Exhibit. The Director 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 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 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. At the time of removal, restoration of the area and reinstallation of the original flagpoles is required. Time extensions may be considered if a written request is received by the Community Development Department within thirty (30) days prior to expiration. (1) 1.4 Approval of Design Review 09-033 is contingent upon the applicant and property owner signing and returning to the Community Development Department a notarized "Agreement to Conditions Imposed" form and the property owner signing and recording with the County Clerk-Recorder a notarized "Notice of Discretionary Permit Approval and Conditions of Approval" form. The forms shall be established by the Director of Community Development, and evidence of recordation shall be provided to the Community Development Department. (1) 1.5 Any violation of any of the conditions imposed is subject to the issuance of an administrative citation pursuant to Section 1162(a) of the Tustin City Code. SOURCE CODES (1) STANDARD CONDITION (5) RESPONSIBLE AGENCY REQUIREMENTS (2) CEQA MITIGATION (6) LANDSCAPING GUIDELINES (3) UNIFORM BUILDING CODE/S (7) PC/CC POLICY (4) DESIGN REVIEW *** EXCEPTIONS Exhibit A City Council Resolution No. 12-54 Page 2 (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 attack, 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 its sole cost and expense, elect to participate in defense of any such action under this condition. (1) 1.7 The Community Development Department may review Design Review 09- 033 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 09-033 if the project does not comply with the conditions of approval. (1) 1.8 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 by ordinance. (1) 1.9 The frequencies used by the wireless facility shall not interfere with the Public Safety 800 MHz Countywide Coordinated Communications System (CCCS). (1) 1.10 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 e-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. (1) 1.11 The applicant shall ensure that a lessee or other users shall comply with the terms and conditions of Design review 09-033 and shall be responsible for the failure of any lessee or other users under the control of the applicant to comply. (1) 1.12 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. Exhibit A City Council Resolution No. 12-54 Page 3 USE RESTRICTIONS (1) 2.1 The facility shall be limited to three (3) flagpoles with interior antennae and associated equipment. Two (2) of the flagpoles are to be at a maximum height of forty (40) feet with the third flagpole of a maximum height of forty- three (43) feet per the approved plans. All antennas shall be located as depicted in the approved plans and associated equipment shall be located within the underground vault. (1) 2.2 No trees shall be relocated or removed to accommodate the project. The applicant shall make a note to this effect on the plans. (1) 2.3 The applicant shall be responsible for obtaining any required approvals or clearances from the applicable easement holders for work in any easement areas. (1) 2.4 The structure and all related facilities shall be regularly maintained and inspected for safety and aesthetics by the applicant in accordance with the approved plans. The applicant shall provide flags for the facility as needed to the City's Parks and Recreation Department. The applicant shall provide two (2) sets of flags at a time so that the City may maintain a back-up set when necessary. Illumination for the flagpoles shall be installed by the applicant and shall include photocells subject to the review and approval of the Parks and Recreation Department and the Community Development Department. (1) 2.5 Any plaques removed as a result of the installation of the facility shall be replaced by the applicant. (1) 2.6 The equipment shall not bear any signs or advertising devices (other than certification, warning, or other required seals or signage). (1) 2.7 Utilities associated with the proposed facility which are not contained within the underground vault, such as but not limited to meter pedestals, shall be located in landscaped areas and screened. Exact locations of said utilities shall be approved by the City of Tustin prior to installation. (1) 2.8 At building plan check, the applicant shall submit a plan identifying hardscape, landscape, and other improvements that will be removed under the proposed plan. (1) 2.9 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. (1) 2.10 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 Exhibit A City Council Resolution No. 12-54 Page 4 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) 2.11 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. (1) 2.12 All facility equipment including the flagpoles and any 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) 2.13 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) 2.14 The aboveground accessory equipment shall be constructed of a material that will 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) 2.15 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. NOISE (1) 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 a.m. until 6:00 p.m., Monday through Friday and 9:00 a.m. until 5:00 p.m. 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 progress of the work. (1) 3.2 Noise emanating from the equipment, if any, shall not exceed the City's Noise Ordinance. Exhibit A City Council Resolution No. 12-54 Page 5 BUILDING 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 adopted by the City Council of the City of Tustin. PUBLIC WORKS DEPARTMENT (1) 5.1 Construction and Demolition Waste Recycling and Reduction Plan (WRRP). • A. The applicant/contractor 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 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 5 percent of the project's valuation. C. Prior to issuance of a 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) 5.2 Prior to any work in the public right-of-way (within Cedar Grove Park and within any public streets), an Encroachment Permit shall be obtained from and applicable fees paid to the Public Works Department. (1) 5.3 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) 5.4 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. Exhibit A City Council Resolution No. 12-54 Page 6 ORANGE COUNTY FIRE AUTHORITY (OCFA) (5) 6.1 Special Equipment and Systems: Prior to the issuance of a building permit, the applicant shall submit to the Fire Chief a plan for review and approval of the lead acid battery system. The plans shall be in accordance with Chapter 6, Section 608 of the 2007 California Fire Code." The applicant may contact the OCFA at (714) 573-6100 or visit the OCFA website to obtain a copy of the "Guidelines for Completing Chemical Classification Packets." FEES (1) 7.1 Prior to issuance of any building permits, payment shall be made of all applicable fees, including but not limited to, the following. Payments shall be required based upon those rates in effect at the time of payment and are subject to change. a. All applicable Building and Planning plan check and permit fees and Orange County Fire Authority fees shall be paid to the Community Development Department. b. 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.