HomeMy WebLinkAbout10 GD. LEASE CINGULAR 06-16-03AGENDA REPORT
Agenda Item
Reviewed:
City Manager
Finance Director
MEETING DATE: JUNE 16, 2003
TO:
FROM:
SUBJECT:
WILLIAM A. HUSTON, CITY MANAGER
PATRICK SANCHEZ, DIRECTOR, PARKS AND RECREATION SERVICES
ELIZABETH BINSACK, DIRECTOR, COMMUNITY DEVELOPMENT
CONSIDERATION OF A GROUND LEASE WITH CINGULAR WIRELESS, LLC
FOR THE INSTALLATION OF A CELLULAR COMMUNICATION FACILITY AT
THE TUSTIN SPORTS PARK (12850 ROBINSON DRIVE)
SUMMARY:
Execution of the ground lease and the Agreement to Conditions Imposed for Design
Review would permit the installation of cellular communication facility antennas on
existing light standards at the Tustin Sports Park. The ground lease would become
effective after the City Manager executes the lease. The proposed term of the lease
would be for a period of seven (7) years, with the possibility of five (5), one (1)-year
extensions. The proposed Tenant is Cingular Wireless, LLC.
RECOMMENDATION:
That the City Council authorize the City Manager to execute the Ground Lease between
the City of Tustin and Cingular Wireless, LLC for the installation of cellular
communications and antenna fixtures on existing standards at the Tustin Sports Park.
BACKGROUND:
Cingular Wireless, LLC is a public utility company licensed to operate personal
communication services (PCS)in California by the Federal Communications
Commission (FCC). Cingular Wireless had requested approval to locate a cellular
communication facility in Position B at the Tustin Sports Park. The Terms and
Conditions include commensurate market rent and a capital improvement of two (2) tot
lot shade structures or alternative compensation of $25,000 to be provided.
The project consists of the installation of an electronic equipment area approximately
200 square feet immediately adjacent to the existing cellular equipment shelter
occupied by Sprint PCS, formerly Cox Communications (Position A). The Sprint PCS
site was originally approved in December 1996. There will be five metal equipment
boxes supporting three sets of antenna array mounted vertically on two (2) - 80' high
sports field lighting standards. The equipment is proposed to be in position B as
identified in Attachment B.
Ground Lease Terms and Conditions: The specific terms and conditions established in
the ground lease are identified in Attachment A.
The information below describes the major provisions of the lease. The term of the
lease would expire at the end of seven (7) years, but could be renewed for five (5)
additional periods of one (1) year each. Cingular Wireless would be required to pay
$1,500 in monthly rent.
· Cingular's use of the facility may not interfere with the park use without notice
and City approval.
· Cingular would be required to obtain all related development permits, business
licenses and state and federal licenses.
· Cingular Wireless has reviewed the Agreement to Conditions Imposed and has
agreed to all the terms as identified in Attachment C.
· Licensing by the FCC to meet the standards identified by the American National
Standards Institute would be required. In addition, the lease requires an annual
test to ensure emissions do not exceed acceptable levels. The cost of this
annual test would be borne by Cingular Wireless.
· At lease termination, Cingular would be required to remove the cellular related
equipment to the City's satisfaction within 60 days.
City Attorney Review: The City Attorney has reviewed and approved the content and
form of the proposed ground lease.
Parks and Recreation Commission: The Parks and Recreation Commission considered
the proposed park improvement at its meetings of September and October 2002 and
recommended Council approval be subject to the Conditions Imposed and the
standards as identified by the American National Standards Institute to ensure
emissions do not exceed acceptable levels.
FISCAL IMPACT;
If authorized, Cingular Wireless would submit $1,500 per month at the beginning of the
operational phase and $1,500 per month during the operations until the lease expires.
In addition, Cingular will pay the cost associated with the installation of the tot lot
shelters and/or $25,000 as identified in Section 6 of the lease agreement.
Cingular Wireless has executed the Agreement to Conditions Imposed and has
submitted the appropriate fees in the amount of $708.46.
Respectfully Submitted,
Director, Parks and Recreation Services
E~iz~6eth I~i~sacl~
Director, Community Development
Attachments:
Attachment A - Ground Lease between Cingular Wireless and the City of Tustin
Attachment B - Site Plan
Attachment C - Agreement to Conditions Imposed
ATTACHMENT A
Ground Lease between Cingular Wireless, LLC
and the City of Tustin
GROUND LEASE
Service and Installation
THIS GROUND LEASE ("Lease") is dated for reference purposes only this ~ day of_
. by and between CITY OF TUSTIN, a municipal corporation ("Landlord" or "City"), and
PACIFIC BELL WIRELESS, LLC, a Nevada limited liability company D/B/A Cingular Wireless
("Tenant").
WHEREAS, Landlord is the owner of certain real property in the City of Tustin, County
of Orange, State of California, commonly known as 12850 Robinson Drive and more particularly
described in Exhibit "A" attached hereto and made a part hereof (the "Property").
WHEREAS, Tenant desires to lease from Landlord and Landlord desires to lease to
Tenant that portion of the Property shown as cross-hatched on the plot plan of the Property
attached as Exhibit "B" hereto and made a part hereof showing in addition a description of
Tenant, as defined below, (collectively, the "Premises").
NOW, THEREFORE, Landlord hereby leases to Tenant, and Tenant hereby leases from
Landlord, the Premises, on the terms and conditions hereinafter set forth.
1. Term and Commencement. This Lease shall be for a Term commencing on the
"Commencement Date," and ending seven (7) years thereafter ("Initial Term"). The
Commencement Date shall be the later of the full execution and delivery of this Lease, and
Tenant's receipt of all required permits and approvals. Notwithstanding the foregoing, it is
understood and agreed between the parties that Tenant's use of the Premises is contingent upon
Tenant obtaining all necessary governmental approvals and permits to allow it to construct and
operate the "Communications Facility," as such term is defined in Paragraph 8 herein below, on
the Premises.
2. Additional Terms and Renewals. Tenant has the right to and option under the Lease to
extend the term for five (5) additional periods of one (1) year each (a "Renewal Term"). Except
as provided herein, each Renewal Term shall be on the same terms and conditions as set forth in
this Lease. This Lease shall automatically be extended for each Renewal Term unless Tenant
notifies Landlord in writing of Tenant's intention not to extend this Lease at least ninety (90) days
prior to expiration of the Term or the then-existing Renewal Term, as the case may be. At the
end of the term of the Lease, in the event the Lease is not renewed or extended, Tenant agrees
that it 'has no right to claim just compensation or relocation benefits under the United States
Constitution, California Constitution or federal or state law. Tenant fully and irrevocably releases
Landlord and the City of Tustin from all such claims, liabilities, and causes of action, including
attorneys' fees and cost. In the event of renewal or extension of this Lease, the Community
Development Department may impose new conditions to protect the public health, safety and
general welfare.
3. Licenses. Landlord hereby grants to Tenant the following revocable licenses: (i) a
nonexclusive license for vehicular and pedestrian ingress and egress 'to and from the Premises
twenty-four (24) hours a day, seven (7) days a week as shown and marked "Access License" on
Exhibit "B" attached hereto, (ii) a non-exclusive license for the installation and/or use of sub-
surface utility lines, including, without limitation, electrical, water, gas, telephone, power, drains
Draft #7
Page I of 10
s:\p&r ABoilerplates\Wireless\
Cingular Wireless - Pacific Bell.doc
and / or sewer pipes located or to be located under' across and through those portions of the
Property as shown and marked "Sub-Surface Utility License" on Exhibit "B" attached hereto, (iii)
a non-exclusive license for the installation and/or use of overhead utility lines, including, without
limitation, electrical, telephone, power and / or other utility lines, and / or support apparatus
located or to be located above, across and through those portions of the 'Property as shown and
marked "Overhead Lines Utility License" on Exhibit "B" attached hereto, and (iv) one (1)
unassigned parking space(s) as shown and marked 'non-Assigned Parking Space(s)" on Exhibit
"B" attached hereto individually and collectively, the "License." The Licenses shall be deemed
automatically revoked at the end of the Term of the Lease or on earlier termination of the Lease
by either Landlord or Tenant as otherwise authorized herein. The Licenses shall include
placement and traffic of such trucks, vehicles and heavy or other construction or repair machinery
on the Property from time to time as may be necessary or appropriate for the construction,
installation, operation, maintenance, replacement and/or removal of the Communications Facility.
Tenant shall promptly repair upon written notice by Landlord to Tenant all damage to the
Property, if any, directly caused by Tenant's construction or use of the Licenses to the condition
that existed immediately prior to such damage; provided, however, that Tenant shall not be liable
to Landlord or any such other person or entity entitled to use the Property on which the Licenses
are located for any consequential damages, including economic loss, attributable to such use,
damage or repairs. To the extent that the Licenses and improvements thereon are constructed or
used by the Tenant exclusively, and except for such maintenance necessitated by the use or
negligent misuse of the License by Landlord and/or Landlord"s assigns, independent contractors,
agents and/or invitees, Tenant shall maintain during the Term of this Lease the Licenses and all
improvements thereon in good condition and repair, free and clear of any obstructions and other
hazards to persons entitled to use the Licenses. The Licenses shall be part of the Premises so long
as this Lease is in full force and effect and Premises, as that term is used in this Lease, shall
include by definition the Licenses.
4. Permits and Approvals. To obtain governmental approvals, Tenant shall submit a photo-
metric simulation of structural plans for building permits. The City of Tustin Community
Development Director shall review and approve architectural plans prior to execution of the
agreement and the issuance of building permits.
5. Rent. Beginning with the Commencement Date, Tenant shall pay to Landlord monthly
Rent in the sum of One Thousand Five Hundred Dollars ($1,500.00) per month in advance on the
first day of each and every month during the term as such amount may be increased or decreased
as hereinafter provided. Beginning at the eXPiration of the first twelve-month period following
the Commencement Date and continuing for each twelve-month period thereafter, including
during any Renewal Term, the Rent shall be increased or decreased, if applicable, by the
percentage increase or decrease of the Consumer Price Index for All Urban Consumers applicable
to the Los Angeles-Anaheim-Riverside area published by the U.S. Department of Labor, Bureau
of Labor Statistics subgroup "All Items (1982-84=100)" ("Index") then in effect, over the index
that was in effect at the commencement of the immediately preceding twelve-month period;
provided, however, that in no event shall the increase or decrease in Rent payable, as adjusted, be
greater than five percent (5%) of the Rent payable for the twelve-month period immediately
preceding said adjustment and in no event shall said Rent decrease below the original Rent
effective on the Commencement Date.
6. Additional Compensation Capital Improvements. Tenant shall provide an additional
capital improvement to install or provide Landlord additional compensation to provide for an
improvement to the patron utility at the park as a result of public real property being used for
exclusive private commercial purposes the following:
Draft #7 Page 2 of 10
s :\p&r:kBoilerplates\Wireless\
Cingular Wireless - Pacific Bell.doc
Tot Lot Shade Structures for the Existing Tot Lot and View Area Manufactured by
Landscape Structures: Two (2) 28' x 28' Pyramid Cool Topper design. Specifications would
include but not be limited to 5" diameter galvanized steel plate booster roof post, structural steel
frame with 10-year warranty against structural failure, weather-resistant breathable shade sure
fabric made of high density polyethylene, rust-free stainless steel fastening hardware, flame-
resistant material. Powder coating and colors to be determined by Landlord.
Alternative compensation to be provided to the Landlord in lieu of installation of the
above, not to exceed $25,000.
7. Use. Tenant shall have the right to use the Premises for the purposes of construction,
maintaining and operating its Communications Facility as provided herein. Tenant's use,
installation, maintenance, repair or replacement of the facility shall not interfere with the primary
use of the Property as a park. Tenant shall provide written notification to the City five (5) days
prior to any work on the site conducted by the Tenant. Said work and work hours are subject to
review and approval by the City. Any work or repair of an emergency nature will require the
Tenant to provide the City with reasonable notice.
Tenant shall be responsible to provide regular routine maintenance to the facility. Tenant
shall provide twenty-four (24) hour written notification to the City prior to commencing any
maintenance that would interfere with the use of the scoreboard or playfields during scheduled
events. Said maintenance and work hours shall be subject to review and approval by the City.
Within sixty (60) days of the final building inspection, the Tenant shall provide for
completion of an emission test, format attached as Exhibit "E." Said test shall be taken from the
perimeter Of the leased space and prepared by a certified engineer selected by the City. The City
will obtain, in writing, three (3) bids from certified engineering fimas and select the lowest
responsible bidder to perform such emission test. At Tenant's cost, such testing shall be
conducted on an annual basis. If said emissions exceed the acceptable levels, then said antenna
shall be disengaged immediately and operation discontinued. Acceptable levels shall mean test
results that demonstrate emission levels which comply with the standards set by the Federal
Communications Commission. Without limiting the provisions of Tenant's indemnity contained
herein, Tenant, on behalf of itself and its successors and assigns, shall indemnify the Landlord
from and against all claims of personal injuries due to EMF's to the extent such personal injuries
are caused by Tenant's Facilities on the Premises.
8. Construction and Alterations. Subject to the obtaining of all necessary governmental
approvals, Tenant shall have the right to construct and install on the Premises its communications
facility with such specifications as Tenant shall determine, to consist of one building with
communications equipment and pole mount with antennae array and all necessary appurtenances,
support equipment and such other equipment, cables and/or conduits as may be appropriate for
Tenant's business use of the Property ("Communications Facility"). Tenant shall not interfere in
any way with radio or other equipment which Landlord or any other user may have on or in the
Property at the time Tenant's equipment is installed. The Communications Facility installed by
Tenant, including without limitation, the building, pole mount, antennae array, communications
equipment and the support equipment located on the Premises, including the support equipment
located on the Licenses, shall at all times be the sole property of Tenant.
9. Cooperation; Indemnity. Landlord shall cooperate with Tenant in supporting apPlications
for governmental permits or approvals covering Tenanfs use, construction and/or occupation of
Draft #7 Page 3 of 10
s:\p&r:XBoilerplates\Wireless\
Cingular Wireless - Pacific Bell.doc
the Premises, including the Licenses, provided that Tenant shall reimburse Landlord for any and
all reasonable expenses attributable to said cooperation which are approved in advance by Tenant
in writing. Tenant shall keep the Property and the Premises free from mechanics' liens arising
out of Tenant's construction. Tenant shall indemnify and hold Landlord harmless from any claim
demand or cause of action which may arise from Tenant's negligent act or omission or willful
misconduct in the construction, installation, operation or maintenance of its Communications
Facility, except for any occurrence attributable, in whole or in part, to Landlord and/or its assigns,
tenant, agents, employees, customers, invitees or contractors.
10. Quiet Enjoyment and Landlord's Non-Interference. Landlord shall not cause, or permit
any party controlled by Landlord to cause, any interference with the conslruction, installation,
maintenance and/or operation of Tenant's Communications Facility. In addition, without
limitation, Tenant shall have the right to terminate this Lease in the event of any material
interference with the Communications Facility which remains uncured for a period of ten (10)
days after notice thereof to Landlord. Specifically, without, limitation, Landlord shall not cause,
or permit any part controlled by Landlord to cause, (i) any delay in the delivery of possession of
the Premises to Tenant beyond the Commencement Date and/or (ii) any interference with the
proper and optimum placement and operation of all equipment and apparatus by Tenant to
construct and operate the Communications Facility on the Premises. Tenant, in the use or
maintenance of the property, shall not interfere with normal park operations, including activities
which utilize the scoreboard.
11. Utihties and Taxes. Tenant shall pay all utilities to the extent required for Tenant's use
of the Premises. Landlord and Tenant shall reasonably cooperate to provide for a separate
metering of said utilities. Landlord shall pay for all real property taxes and assessments against
the Premises; however, that Tenant shall if requested by Landlord, pay to Landlord any increase
in said taxes or assessments based solely on the assessed value of any improvements constructed
by Tenant on the Premises for operation of its Communications Facility, and provided, further,
that Tenant shall have the fight to protest and contest any such taxes or assessments with the
appropriate governmental authority. Tenant shall pay all personal property taxes on its equipment
located on the Premises.
12. Removal of Property. Tenant shall remove, within a reasonable period of time (not to
exceed sixty (60) days) following the expiration of the Term or revocation hereof, such personal
property, equipment, trade fixture(s) and improvement(s)as are specifically designated as
required to be removed by Tenant, if any on Exhibit "B" attached hereto. If any such personal
property, equipment, trade fixture(s), and improvement(s) are not specifically designated as
required to be removed by Tenant on Exhibit "B," then Tenant shall have the right, but not the
obligation, to remove such items within a reasonable period of time (not to exceed sixty (60)
days) following the expiration of earlier termination of the Term hereof. Tenant is required to
remm site and the scoreboard and facility improvements in a condition acceptable to the City, less
reasonable wear and tear. Any personal property, equipment, trade fixture(s) and improvement(s)
which are not removed by Tenant within sixty (60) days after the expiration or earlier termination
of this Lease shall, upon the expiration said sixty (60) day period, become the property of
Landlord (subject, however, to any interest therein or rights thereto of any third parties in
accordance with Paragraph 29 of this Lease) and Tenant shall thereafter have no rights,
obligations or liabilities whatsoever with respect thereto.
13. Title Matters. Landlord represents and warrants that it has full authority to enter in to this
Lease and to grant the Licenses and that Landlord has fee title to the Property and the Premises,
subject to only those exceptions as shown on Exhibit "C" attached hereto and made a part hereof
Draft #7
Page 4 of 10
s:\p&r:kBoilerplates\Wireless\
Cingular Wireless - Pacific Bell.doc
("Permitted Title Exceptions"), and that Landlord has provided to Tenant copies of all agreements
and documents affecting Tenant's use of the Premises and/or leasehold estate acquired hereunder.
14. Assignment. City's permission is required for assignment if the common ownership
interest is less than 30%; City's permission will not be unreasonably withheld. Tenant may,
without Landlord's approval and in Tenant's sole discretion, assign the Lease and all Licenses
held under the Lease (i) to any entity which has, directly or indirectly, a 30% or greater interest in
Tenant (a "Parent") or in which Tenant or a Parent has a 30% or greater interest (an "Affiliate");
or (ii) to any entity with which Tenant and/or any Affiliate may merge or consolidate; (iii) to a
buyer of substantially all of the outstanding ownership units or assets .of Tenant or any Affiliate;
or (iv) to the holder or transferee of the Federal Communications Commission ("FCC") license
under which Tenant's Facility is operated, upon FCC approval of any such transfer. Any such
assignment shall not be effective until the assignee signs and delivers to Landlord a document in
which the assignee assumes responsibility for all of Tenant's obligations under the Lease arising
from and after the effective date of assignment.
15. Insurance. Throughout the Term, Tenant shall maintain insurance against public liability
for injury to persons (including death) or damage to property occurring within, upon or about the
Premises or Property. Such insurance policy shall be a combined single limit policy in an amount
not less than $1,000,000.00 per occurrence and $2,000,000.00 aggregate, and Landlord shall be '
named as an additional insured under the policy. Said insurance may be in the form of general
coverage or floating policies covering these and other premises.
16. Damage or Destruction. If the whole or any part of the Communications Facility or the
Premises, including the Licenses, are damaged or destroyed by fire, the elements, subsidence of
sublateral or subjacent support or any other casualty (all of which are herein called "damage"),
makes the Premises unsuitable or uneconomic for Tenant's use, Tenant may terminate this Lease
and all of the obligations of either party hereunder upon written notice to Landlord provided that
such notice is given by Tenant to Landlord within thirty (30) days of the later to occur of (i) the
date of such damage or (ii) Tenant's determination that continued use of the Premises is
unsuitable or uneconomic.
17. Tenant's Default. If Tenant shall fail to make any payment of Rent herein provided when
due, Landlord shall forward written notice of such failure to Tenant, as provided in Paragraph 30
herein below, and the failure of Tenant to cure within fifteen (15) days after Tenant's receipt of
said notice shall be an "Event of Default" under this Lease and Landlord may thereafter terminate
this Lease upon fifteen (15) days written notice to Tenant and pursue any and all other remedies
available to it under law. If Tenant shall fail to perform any of the terms or provisions of this
Lease other than the Payment of Rent, and if Landlord shall give Tenant written notice, as
provided herein, or, if the failure to perform is of such character as to require more than thirty
(30) days to cure and Tenanl~ shall not use reasonable diligence in commencing a cure of such
failure during said period, such failure shall be deemed an "Event of. Default" of Tenant's
obligations under this Lease and Landlord may thereafter terminate this Lease upon fifteen (15)
days written notice to Tenant and pursue any and all other remedies available to it under law.
Tenant shall not be in default under this Lease unless and until an "Event of Default," as defined
in this paragraph 17, shall have occurred.
18. Landlord's Default. If Landlord shall default on any of its obligations contained in this
Lease, Tenant. shall have the right to deliver written notice of such default to Landlord, as
provided in Paragraph 30 herein below, and failure of Landlord to cure such default within thirty
(30) days or any such lesser period as may be expressly provided herein shall be a default under
Draft #7 Page 5 of 10
s:\p&r:kBoilerplates\Wireless\
Cingular Wireless - Pacific Bell.doc
this Lease and Tenant may thereafter pursue any and all remedies available to it under law,
including, without limitation, the right, but not the obligation, to cure said default and submit a
written statement of costs incurred for curing said default to Landlord. In such event, Landlord
-shall have thirty (30) days following receipt of such written statement to reimburse Tenant for
costs incurred. The foregoing shall in no way limit Tenant's right to seek equitable relief without
notice to Landlord.
19. Estoppel Certificate. From time to time upon not less than twenty (20) days prior written
notice by either party, the other party shall execute, acknowledge and deliver to the requesting
party a statement in writing certifying that, this Lease is unmodified and in full force and effect
(or if modified, describing such modification(s)) and that the requesting party is not in default,
except as specified in such statement, in regard to any of its obligations under this Lease and
further setting forth the Rent then payable hereunder, the dates to which Rent has been paid in
advance, if any, and such other statements relating to delivery and acceptance of the Premises as
the requesting party's lender, purchaser, assignee or sublessee may require. Said statement shall
be accUrate and binding on the party executing same and may be relied, upon by any such person
as hereinabove described at whose insistence the estoppel was prepared and/or delivered.
20. Obligations and Rights Run with the Land. The Licenses, and each and all of the
obligations, rights, restrictions, liens and charges set forth in this Lease run with the land
comprising Tenant's estate and Landlord's estate and every portion thereof, and are binding upon
and inure to the benefit of the respective successors Coy operation of law or otherwise), assigns,
tenants, invitees and agents of the parties hereto and other lawful occupants of Tenant's estate and
Landlord's estate.
21. Laridlord's Covenant to Provide Notice. In addition to any other obligation of Landlord
to provide notice to Tenant provided herein, Landlord shall deliver to Tenant, as provided in
Paragraph 30 herein below, any and all notice(s) received by Landlord which pertain to Tenant's
use and enjoyment of the Premises, including, without limitation, from any governmental
authority, lender, lien claimant or any other person or entity claiming an interest in or right to the
Premises. Landlord shall deliver such notice(s) to Tenant promptly upon receipt of same by
Landlord.
22. Time of Essence. Time is of the essence of each and every provision of this Lease.
23. Consent of Parties. Except as otherwise expressly provided herein, whenever the consent
or approval of either party is required, that party shall not unreaSonably withhold or delay such
consent or approval.
24. California Law. This Lease shall be construed and enforced in accordance with the laws
of the State of California.
25. Successors and Assigns. Each and all of the rights and obligations of the parties under
this Lease shall be binding upon and shall inure to the benefit of the parties and their respective
heirs, successors and assigns.
26. Severability. The invalidity of any portion of this Lease shall not affect the remainder of
this Lease.
27. Attorneys' Fees. In the event that any action shall be instituted by either of the parties
hereto for the enforcement of any of its rights or remedies in and under this Lease the prevailing
Draft #7 Page 6 of 10
s:\p&r:kBoilerplates\Wireless\
Cingular Wireless - Pacific Bell.doc
party shall be entitled to recover from the other party all costs incurred by said prevailing party in
said action, including reasonable attorneys' fees to the extent fixed by the Court therein.
28. Additional Agreements. From and after the date of this Lease, each of the.parties hereto
shall promptly execute, acknowledge and deliver, or cause to be executed, acknowledged and
delivered, all such instruments or documents and to take all actions pursuant to the provisions
hereof as may reasonably be requested by any party to carry out the intent or .purpose of this
Lease.
29. Tenant's Premises, Equipment Financing and Leasehold Assignment. Landlord
acknowledges that Tenant's use of the Premises includes proprietary trade secrets. Landlord shall
have the right to enter the Premises with Tenant's prior written consent which Tenant shall not
unreasonably withhold. Landlord hereby expressly understands and agrees that, at all times
during the Term, Tenant shall have the absolute and unconditional right from time to time to
grant to any person or entity a security interest (including, without, limitation, a security interest
of first lien priority) in some or all of the Communications Facihty and/or any of Tenant's
furniture, fixtures, equipment and/or other property utilized in connection therewith ("Equipment
Financing") and/or to assign or pledge Tenant's interest in this Lease and the Premises, including
the Licenses, to any person or entity for purposes of financing its equipment or for the operation
of its business ("Leasehold Assignment"), and to record against Tenant's interest in the Premises
any instruments or documents as may be required with respect to such Equipment Financing or
Leasehold Assignment. Landlord hereby waives any and all rights or interest which Landlord
may have or acquire to or in the Communications Facility and/or any of Tenant's furniture,
fixtures, equipment and/or other property utilized or to be utilized in connection therewith and
hereby agrees that same Will not constitute realty regardless of the law of fixtures and/or the
manner in which same are affixed to or placed on the Premises or otherwise. Accordingly,
Landlord shall not grant, create or purport to grant or create any security interest whatsoever in
the Communications Facility and/or any of Tenant's furniture, fixtures, equipment and/or other
property utilized or to be utilized in connection therewith. Landlord hereby expressly
understands and agrees to promptly execute, acknowledge and deliver to Tenant, upon request by
Tenant, all such instruments and documents as are reasonably requested by Tenant, in order for
Tenant to consummate the transactions contemplated by this Paragraph 29.
30. Notices. Any notice, request, information or other document to be given thereunder to
any of the parties by any other parties shall be in writing and shall be deemed given and served
upon delivery if delivered personally, or three (3) days after mailing if sent by certified mail,
postage prepaid, as follows:
If to Tenant, addressed to:
Pacific Bell Wireless
3345 Michelson Drive, Suite 100
Irvine, CA 92612
Atto: Property Manager
If to Landlord, addressed to:
City of Tustin
300 Centennial Way
Tustin, CA 92780
Atto: William Huston
Patrick Sanchez
Any party may change the address or persons to which notices are to be sent to it by
giving the written notification change of address or persons to the other parties in the manner
herein provided for giving notice.
31. Termination. In addition to any other right or event of termination thereunder, Tenant
may at any time during the Term, terminate this Lease on thirty (30) days prior written notice to
Draft #7 Page 7 of 10
s:\p&r:kBoilerplates\Wireless\
Cingular Wireless - Pacific Bell.doc
Landlord, provided that Tenant shall concurrently with the giving of such notice of termination
pay Landlord an amount equal to three (3) months Rent, as such Rent shall be determined
pursuant to Paragraph 5, hereinabove.
In addition to City's right to terminate for Tenant's default, as set forth in Section 17
herein, City, at its sole and absolute discretion, may terminate the Agreement upon the occurrence
of any of the following events; Natural disasters, emergencies or acts of God affecting the
Property; destruction of the Property; Tenant's failure to maintain required perm/ts and approvals;
condemnation; a general assignment for the benefit of Tenant's creditors or petition for
reorganization or liquidation of Tenant under any law relating to insolvency or bankruptcy; or
abandonment of the Premises by the Tenant. Before terminating the agreement, City will provide
Tenant with 30 days written notice, unless a shorter notice period is called for in the interests of
public health, welfare or safety.
32. Compliance with Laws. Landlord and tenant shall comply in all respects with all
applicable building codes, regulations and ordinances affecting the Property.
33. Entire Agreement. This Lease along with all exhibits and attachments or other
documents affixed hereto or referred to herein as part of the agreement between the parties
(including the Addendum to Lease) constitutes the entire and exclusive agreement between
Landlord and Tenant relative to the Premises, including the Licenses, herein described and
"Lease" as such term is used herein shall include by definition all such exhibits, attachments and
other documents. All prior or contemporaneous oral agreements, understandings and/or
discussions relative to the leasing of the Premises, including the Licenses, are merged in or
revoked by this Lease. This Lease and said exhibits, attachments and other documents may be
altered, amended or revoked only by instrument in writing signed by both Landlord and Tenant.
34. Landlord's Authority to Execute Lease. Landlord represents and warrants that this Lease
and the execution hereof does not and will not conflict with or violate .the Articles of'
Incorporation, By Laws, Partnership Agreement, Instrument of Trust or any other comparable
document of Landlord or any agreement to which Landlord is a party or by which it or its assets
are bound. Further, Landlord and each individual executing this Lease on behalf of Landlord
represent and warrant that he/she is duly authorized to execute and deliver this Lease on behalf of
Landlord and that this Lease is binding upon Landlord and enforceable against Landlord in
accordance with its terms. Landlord shall, at its sole cost and expense, concurrently with its
execution of this Lease (and at other times at Tenant's request), deliver to Tenant, without
limitation, such resolutions, certificates, approvals, letter of conservatorship, Court orders and
written assurances as Tenant may request authorizing and approving the execution of this Lease.
35.
Third Party Collocation: The applicant shall evaluate all requests for collocation 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 with the PropertyOwner.
36.
Addendum. Attached hereto is an addendum or addenda containing Paragraph 37 which
constitutes a part of this Lease, also known as Exhibit "D."
Draft #7
Page 8 of 10
s:\p&-r:kBoilerplates\Wireless\
Cingular Wireless - Pacific Bell.doc
LANDLORD AND TENANT HAVE CAREFULLY READ AND REVIEWED THIS LEASE
AND EACH TERM AND PROVISION CONTAINED HEREIN AND, BY EXECUTION OF
THIS LEASE, DEMONSTRATE THEIR INFORMED AND VOLUNTARY CONSENT
THERETO. THE PARTIES HEREBY AGREE THAT, AT THE TIME THIS LEASE IS
EXECUTED, THE TERMS OF THIS LEASE ARE COMMERCIALLLY REASONABLE AND
EFFECTUATE THE INTENT AND PURPOSE OF LANDLORD AND TENANT WTrH
RESPECT TO THE PREMISES.
ATTACHED EXHIBITS
EXHIBIT "A"
EXHIBIT "B"
EXHIBIT "C"
EXHIBIT "D"
Legal Description of Property -
Plot Plan (Diagram of Property and Premises,
including the Licenses)
Permitted Title Exceptions
Addendum to the Lease Identifying
Environmental Indemnification
Draft #7
Page 9 of 10
s:\p&r:kBoilerplates\Wireless\
Cingular Wireless - Pacific Bell.doc
IN WITNESS WHEREOF, the parties have executed this Lease on the date first above written.
LANDLORD: TENANT:
City of Tustin,
a municipal corporation
300 Centennial Way
Tustin, CA 92780
At-m: William Huston
Patrick Sanchez
By:
By:
APPROVED AS TO FORM:
Pacific Bell Wireless, LLC
3345 Michelson Drive, Suite 100
Indne, CA 92612
Atto: Property Manager
By:
Charles ~ranek
Its: Vice Prcsi~cnt,
SPe:c[£ afl Pr~jects
Real Estate/
a Nevada limited liability company
d/b/a Cingular Wireless
By: GSM Facilities, LLC, its sole
member
By: Cingular Wireless, LLC,
its agent
Agency Legal Cou.~s~l ]'~/ 0
Draft #7
Page 10 of 10
s:\p&r:kBoilerplates\Wireless\
Cingular Wireless - Pacific Bell.doc
Legal Description of Property_
The land referred to in this report is situated in the State of California, County of Orange,
City of Tustin and is described as follows:
Parcel 2 of Parcel Map No. 88-316, in the City of Tustin, County of Orange, State of
California, as shown on a map filed in Book 262, Pages 45 to 47 inclusive of Parcel
Maps, records of Orange County, California.
Excepting any and 'all oil, oil rights, minerals, mineral fights, 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 property, together with the
perPetual right of drilling, mining, exploring and operating therefore and storing in and
removing the same from the property or any other land, including the right to whipstock
or directionally drill and mine from lands other than the property, oil or gas wells, tunnels
and shafts into, through or across the subsurface of the property and to bottom such
whipstocked or directionally drilled wells, runnels 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; but without, however, the fight to drill, mine, store,
explore or operate through the surface or the upper 500 feet of the subsurface of the
property, as reserved by The Irvine Company, a Michigan corPoration in Grant Deed
recorded May 21, 1991, as Instnhment No. 91-249110 Official Records.
Draft #7
EXHIBIT A
S :XBoilerplates/Wireless/Pac Bell-Cingular
EXHIBIT A
Permitted Title Exceptions
(None applicable.)
Dr'afl #7
EXHIBIT C
S :kBoilerplates/Wireless/Pac Bell-Cingular/
Exhibit C.doc
ADDENDUM TO LEASE
THIS ADDENDUM TO LEASE ("Addendum") is attached to and made a part of the
certain lease ("Lease") dated this ~ day of , 2003, by and between CITY
OF TUSTIN, a municipal corporation, as landlord ("Landlord") and PACIFIC BELL WIRELESS,
LLC, a Nevada limited liability company D/B/A "Cingular Wireless" ("Tenant"). Notwithstanding
anything to the contrary in the Lease, the provisions of this Addendum shall prevail.
37. Environmental Matters.
37.1 Landlord's Warranties and Representations. Landlord represents and warrants that, to the
best of Landlord's knowledge, except as set follows:
NONE
(If None, write the word "NONE")
that (i) there have been no leads, spills, releases, discharges, emissions, installation, or disposal of
hazardous or toxic wastes, materials or substances (as such substances are regulated or may be
regulated by any applicable local, state or federal laws or regulations) ("Hazardous Substances"),
occurring on or affecting the Property or the improvements located thereon, if any, and (ii) the
soil, ground water, or improvements, if any on, in, under or about the property is/are free of any
Hazardous Substances. The term "Hazardous Substance" as used in this Lease shall not include
small quantities of household or office supply materials maintained in commercial containers and
used in the ordinary course of business.
37.2 Mutual Indemnification. Except to the extent that such Hazardous Substances are
introduced into the Property solely as a result of Tenant's conduct, Landlord agrees to indemnify,
defend (with counsel selected by Tenant and approved by Landlord) and hold Tenant harmless
from any claims judgments, damages, penalties, fines, costs, liabilities (including sums paid in
settlements of claims) or losses, including attorneys' fees, consultants' fees, and experts' fees
which arise from or in connection with the presence or suspected presence of Hazardous
Substances on, in, under or about the Property ("Claims"). Tenant agrees to indemnify, defend
(w/th counsel selected by Landlord) and hold Landlord harmless from any and all Claims arising
from the presence of Hazardous Substances on, in under or about the Property the presence of
which were solely a result of Tenant's conduct. Without limiting the generality of the foregoing,
this indemnification obligation of Tenant and Landlord shall specifically cover costs incurred in
connection with any investigation of site conditions or any clean-up, remedial, removal, or
restoration work required by any federal, state or local government agency or political
subdivision, or by any third party resulting from the presence or the suspected presence of
Hazardous Substances, in, on, under or about the Property. Landlord's indemnification
obligations shall also include Hazardous Substances released by Tenant's construction of
improvements on the Property if the existence of such Hazardous Substances was not disclosed
by Landlord to Tenant. Landlord's and Tenant's indemnification obligations shall survive the
expiration or earlier termination of this Lease.
37.3 Presence of Hazardous Substances.
(a) Throughout the term of this Lease, Landlord shall immediately notify Tenant of
the presence of or the release of Hazardous Substance on, in, under or about the Property.
Draft #7 EXHIBIT D
Page 1 of 2
S:XBoilerplates/Wireless/PacBell/
Addendum to Lease.doc
Co) Notwithstanding the terms of this Lease to the contrary, if Landlord has entered
the Premises in connection with the presence or remediation of Hazardous Substances, whether or
not Landlord has provided Tenant with pr/or written notice of such entry, Landlord shall
thereafter immediately notify Tenant of such entry and the purpose of and actions taken by
Landlord in connection with such entry.
(c) Due to the sensitive nature of the equipment maintained by Tenant at the
Premises, if Hazardous Substances are present on, in, under or about the Premises or the Property
(which presence was not caused or necessitated solely as a result of Tenant's conduct) and the
presence thereon adversely affects the operation of Tenant's equipment, the Tenant shall have
such rights as are provided elsewhere in this Lease for the City to agree to pay the lesser of the
reasonable costs of repair or replacement for damage directly attributable to City's actions.
IN WITNESS WHEREOF, the parties hereto have executed this Addendum as of the date
first above written.
LANDLORD: TENANT:
City of Tustin,
a municipal corporation
Pacific Bell Wireless, LLC
a Nevada limited liability company
D/B/A Cingular Wireless
By:
Cnarl~ Vran~
Its: Vice President, Real Estate/
Special Projects
By:
Its:
By: GSM Facilities, LLC,
its sole member
By: Cingular Wireless, LLC
its agent
APPROVED AS TO FORM:
City Attorney
EXHIBIT D
Page 2 of 2
S :kBoilerplates/Wireless/PacBell/
Addendum to Lease.doc
ATTACHMENT B
Site Plan
N
//
/
/
2:
Z
T
N
._J
£90£'~/Zt (6t6) :XDJ E980-909
ZIg~6 o!uJoHl~g 'eUl^JI
0Ze al!ns 'enue,,,¥ umujo)l uo^ 00gB[
:e"lH0 IoeJoJd
o~
~o~~
oo=~' ~
~ OwO ~
z o~o~ v ~oo
/..
/
~~zz
00000~000
L,
N
..
/.
00/1 i/LO :a3110'ld ISV'I
~O01J Hit' '~ '9018 'WO OOOM]SOW OZl~ teos:-zzt (eVe) :..,x~,,j__ ~9~o.-.?_ou (rlL)
I . J :eoljjO toaJoJd J e ~lrtS '31,~1L1 )l~g'd ),~S
sseleJ~M j
· ~ ~ ~_o ~ ~ ~
-%
\'"/ \\
[_
ATTACHMENT C
Agreement to Conditions Imposed
EXHIBIT A
FINDINGS AND CONDITIONS OF APPROVAL
DESIGN REVIEW 02-020
SEPTEMBER 19, 2002
The Community Development Department finds and determines as follows'
Ac
That 'a proper application, Design Review 02-020, was filed by C!ngular
WireleSs requesting authorization for the installation of three (3) cross-
polar antennas at a height of sixty (60) feet on an existing' light pole and
the expansion of an existing equipment enclosure to accommodate the
installation of accessory equipment at the Tustin Sports Park located at
12850 Robinson Drive. The lease area for the accessory equipment
enclosure is adjacent to an existing equipment enclosure that measures
eight (8) feet by twenty-seven (27) feet.
B,
.That-on July 1.8, 2002, the Parks and Recreation Commission considered
the appliCation and recommended that the City Council find that the
proposed wireless .facility is consistent with the Goal NO. 14 of. the
COnservation/Open Space/Recreation Element of the General Plan to
encourage the development and .maintenance of a balanced system of
public and private parks, recreation facilities, and open spaces that serves
the needs of existing and future residents in the City of Tustin.
C,
That pursuant to Section 9272(c) of the Tustin City Code, the Community
Development Department finds that the location, size, architectural
features, and general 'appearance of the proposal will not impair 'the
orderly and harmonious development of the area, the present or future
development therein, or the occupancy as a whole. In making such
findings, the Community Development Department has considered at least
the following items:
,
2.
3.
4.
.
Height, bulk, and area of buildings and structures.
Setbacks and site planning.
Exterior materials and colors.
Towers, chimneys, roof structures, flagpoles, utility poles, radio, and
television antennae.
Landscaping, parking area design, and traffic circulation.
Location, height, and standards of exterior illumination.
Location and appearance of equipment located outside of an
enclosed structure.
(2)
(3)
(4)
SOURCE CODES
STANDARD CONDITION
CEQA MITIGATION
UNIFORM BUILDING CODE/S
DESIGN REVIEW
EXCEPTIONS
(5) ·
(is)
.(7)
RESPONSIBLE AGENCY
REQUIREMENTS
LANDSC. APING GUIDELINES
PO/CC POLICY
DR 02-020
September 19, 2002
Page 2
Ii.
.
10.
Physical relationship of' p'roposed structures to existing structures in
the neighborhood.
Appearance and design relationship of proposed structures to
existing structures and possible future structures 'in the neighborhood
and public thoroughfares.
Development Guidelines and oriteria as adopted by the City Council.
Do
That this project involves a'n installation of small new equipment to an
existing structure and is Categorically Exempt pursuant to Section 15303,
Class-3 of Title 14, Chapter 3 of the California Code of Regulations
(Guidelines for the California Environmental Quality Act).
E,
That the project is consistent with the following Tustin General Plan goals
and policies:
Goal 1:
Provide for a welt-balanced land use pattern' that
accommodates existing and future needs for housing,
commercial, and industrial land, Open space, community
facilities and services, while maintaining a healthy,
diversified economy adequate to provide future City
services;
Goal 4:
Assure a safe, healthy, and .aestheticallY pleasing community
for residents and businesses;
Policy 6.2:
EncOurage and promote high quality design and physical
appearance in all development projects;
Policy 8.3:
Coordinate the construction of all public utilities to minimize
disruption of vehicular traffic and negative' impacts on
roadways; and,
.Policy 816-:
Encourage planned improvements to electricity, natural gas,
and communication services systems.
F,
That the project has been reviewed for consistency with the Air QualitY Sub-
element of the City of Tustin .General Plan and has been determined to be
consistent with the Air Quality Sub-element.
'Phat the 'Community Development Department hereby conditionally approves
Design Review 02-020 authorizing the installation of three (3) cross-polar
antennas at a height of sixty (60) feet on an existing light pole and the 8 x 27 foot
expansion of an existing enclosure and accessory equipment at the Tustin Sports
Park located at 12850 Robinson Drive. .
DR 02-020
September 19, 2002"
Page 3
GENERAL
(1) 1.7
The proposed project shall substantially. conform with the submitted plans
for the project date stamped September 19, 2002, on file with the
Community Development Department, as herein modified, or as modified
by the Director of Community Development. The Director of Community
Development may also approve subsequent minor modifications to plans
during plan check if such modifications are to be consistent with provisions
of the Tustin City Code.
The sUbject project approval shall become null and void unless permits
are issued within twelve (12) months of the date of this Exhibit and
substantial construction is underway and/or if a lease is .not executed as
specified in Condition No. 1.6. Time extensions may be granted if a
written request is received .by the Community Development Department
within thirty (30) days prior to expiration.
All conditions in this Exhibit shall be complied with prior to the issuance of
any building permits for this project or as specified herein.
Approval of Design Review 02-020 is contingent upon the applicant and
property owner signing and returning to the Community Development
Department a notarized "Agreement to Conditions Imposed" form.
The appliCant shall hold harmless and defend the City of Tustin' from all
claims and liabilities arising out of a challenge of the City's approval for
this project.
Prior to permit issuance, the applicant shall' enter into a Lease Agreement
with the City of Tustin. The Lease Agreement shall be subject to approval
of the' City Attorney's office and the City Manager's office as to 'specific
.terms and conditions and executed by the City Council. The Lease
Agreement shall be executed by the City of Tustin, the applicant, and
equipment owner if required by the City Attorney. The applicant shall pay
the costs, associated with the City Attorney's review.
,..
Except as otherwise stated in Condition 1.2, Design Review app.r0val shall
remain Valid. for a period not to exceed the term of the lease on the subject
property, including any extension thereof. A copy of the Lease Agreement
would need to be submitted to the Community Development Director prior to
issuance of any permits. If the lease is extended or terminated, notice and
evidence thereof shall be provided to the Community Development Director.
Upon. the termination of the Lease Agreement or upon the failure to install
the facility within 180 days of its approval., the Design Review approval
-DR 02-020
September 19, 2002
Page 4
(1) t.8
(1) 1.11
(1) 1.12
(1) 1.13
(1) 1.14
(3)
1.16'
would become null and void and the facility would need-to be removed within
thirty (30) days from such termination or expiration,
The equipment owner/company shall file the equipment identification
number, company name, person responsible for maintenance of the
accessory equipment, and the phone number with the Public 'Works
Department.
The equipment shall not bear any signs of advertising devices (other than
certification, warning, or other required seals or signage).
Aboveground equipment shall be constructed or treated with appropriate
materials which discourage or repel graffiti and the equipment owner shall
be responsible for remoVing graffiti from equipment within forty-eight (48)
hours. Equipment owners shall be responsible for costs associated with
any necessary enforcement action related to graffiti removal.
.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 Parks and Recreation Department.
The utility.provider or equipmen, t installing entity shall be responsible for
reConstruction of in-kind facilities within the public property and/or public
right-of-way that are damaged or modified during installation of wireless
facility.
The aboveground 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.
No oUtdoor storage shall be permitted, except as approved by the
Community Development Director.
The. applicant 'shall provide' justification for compliance with Federal and
State accessibility standards.
Any violation of any of the conditions imposed is subject to the payment of a
civil penalty of $100..00 for each violation, or such other amounts as the City
Council may establish by ordinance or resolution, and for each day the
Violation .exists, subject to the applicable notice, hearing, and appeal process
as established by the City Council ordinance.
DR 02-020
september 19, 2002
Page 5
'(1) 1.17
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.
PUBLIC WORKS/ENGINEERING DEPARTMENT
(5)
The applicant, shall determine whether a vehicular access easement is
needed and show the proposed location on the plans. At the time of plan
check, the vehicular access easement would need to be prepared by a
California Registered Civil Engineer or California Licensed Land Surveyor
and would need to be reviewed and approved by the City's Engiheering
DiVision.
(5)
During plan check, the applicant shall submit a legal description and
sketches for all proposed underground conduits and facilities within the
City.'s right-of-way as prepared by a California Registered Civil Engineer Or
California Licensed Land Surveyor for review and approval.
PARKS AND RECREATION DEPARTMENT
(5) . .2o
Upon issuance of permits, the contractor shall identify project dates and
times and indicate, whether existing programs at the park would be
interrUpted during installation. All construction daYs and times shall be
approved in advance by the Parks and Recreation Department.
(1) 1.21
biquidated damages for any disruption of park activities shall be made to
the Parks and Recreation Department if construction actiVities extend
beyond the approved construction days and times.
(5) 1.22 .
If the. original light pole is disposed of, the applicant shall dispose of the
original light pole and provide the City with adequate compensation for the
removal of the original light pole and other amenities.
.(5) 1.23
If the a.pplicant .utilizes the original light pole,, at the time of permit
issuance, the operator shall coordinate with the City's Parks and
Recreation Department for the replacement of light bulbs With energy
efficient light bulbs while the pole is on the ground.
(5) 1.24
Any new irrigation will need to be integrated into the existing irrigation
control system, and the applicant would need to repair any damage to
irrigation facilities by the e'nd of each working day to ensure normal
operations, unless otherwise approved by the City's Landscape Division.
DR 02-020
September 19, 2002
Page 6
OPERATIONAL CONDITIONS
(***) 1.25 . Operation of the wireless facility shall be in compliance with the methods
of operation as proposed by the applicant and noted on the plans:
a,
The applicant (Cingular Wireless) recognizes.that the frequencies
Used by the cellular facility located at 12850 Robinson Drive are
extremely 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 Communications Officials-
International, inc. (APCO), and as endorsed by the Federal
Communications Commission (FCC). Prior to the issuance of any
permits to install the facility,. Cingular Wireless 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.
bo
At all times, other than during the 24.-hour cure period provided in
item c. below, the applicant (Cingular Wireless) shall not prevent
the City of.Tustin from having adequate.spectrum capacity on the
City's 800' MHz-radio frequency.
C,
Before activating its facility, the applicant (Cingular Wireless) shall
submit to a post-installation test to confirm that the "advanced
planning and frequency coordination" of the facility was successful
in not interfering with the City of Tustin Public and Safety radio
equipment. This 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.
do
The applicant (Cingular Wireless) shall provide a 24-hour phone
number .to'which interference problems may be reported. This
DR 02-020
September 19, 2002
Page 7
condition will also apply to all existing facilities (operated.by
Cingular Wireless)in the City of Tustin.
e..
The applicant (Cingular Wireless) shall provide a' "single point of
contact" in its Engineering and Maintenance Departments to ensure
continuity on all interference issues. The name, telephone number,
fax number, and e-mail address of that person shall be provided to
the City's designated representative upon activation of the .facility.
The applicant (Cingular Wireless) shall ensure that lessee or other
users shall comply with the terms and conditions of this permit and
shall be responsible for the failure of any lesSee or other users
under the control of Cingular Wireless to comply.
(***)
The applicant shall prepare a preliminary report within ninety (90) days of
completion of the project demonstrating conformance with the national
standards for .safe human exposure to electromagnetic fields and radio
frequency installation. Said report shall be submitted to the Community
Development Department.
'(***) 1.27
Radio frequency emissions shall not exceed the radio frequency emission
guidelines of the Federal Communication Commission (FCC) as such
guidelines may be amended from time to time.
(***). 1.28
Prior to July 1, 2003, and. prior to each July 1 thereafter, the operator.shall
file with the City of Tustin Community Development Department a
certification of compliance prepared by an independent third party
qualified to measure radio frequency emissions.
(4)
1.29 The antennas, related equipment enclosure, and landscaping screening
shall be regularly maintained and inspected, for safety and aesthetics.
(***) 1.30
If deemed necessary upon change of ownership, notices shall be mailed
to property owners and/or tenants within a 1,000 foot radius of the site
informing them that the project was approved and providing information as
to how to contact the Federal Communications CommisSion for complaints
regarding radio' frequency interference. The operator shall provide written
notification to the City sixty (60) days in advance of a change of
ownership. The cost of Said notification shall be borne by the operator.
PLAN SUBMITTAL.
(4)
The antennas shall be made or painted to match the color of the utility
pole. Proposed colors and materials shall be indicated on the elevations
DR 02-020
September 19, 2002
Page 8
(4) 2.2
(4) 2.3
(3) 2.4
(3) 2.5
NOISE
(7)
(7) 3.2
and submitted for review and approval by the Community Development
Department.
The applicant shall construct the new enclosure to match the existing
enclosure. The enclosure shall be screened from public view with heavy
landscape materials. The applicant shall submit precise landscape and
'irrigation plans showing landscape screening surrounding the enclosure to
the Community Development Department for review and approval prior to
issuance of any permits.
No exterior cables shall be permitted.
At plan check, submit seven (7) sets of construction plans and two (2) sets
'of structural calculations prepared by a licensed engineer/architect. No field'
changes shall be made without corrections submitted to and approved by
the Community Development Department.
Indicate on the title sheet the applicable codes, City, State, and Federal laws
and regulations to include:
· 1998 California Building Code (CBC);
· 1998 California Mechanical Code (CMC);
· 1998 California Plumbing Codes (CPC);
· 1998 California Electrical Code (CEC);
· , California Title 24 Accessibility Regulations;
· Title 24 Energy Regulations; and,
· 'City Ordinances, and State and Federal laws and regulations.
All construction operators including engine warm-up 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 that public health and safety
'will not be impaired subject to application being made at the time of the
permit for the work is awarded or during progress of the work.
Noise emanating from the equipment shall not exceed the City's noise
standards.
DR 02-020
September 19, 2002
Page 9
· ORANGE COUNTY FIRE AUTHORITY (OCFA)
(5)
Prior to issuance of any permits, the applicant shall coordinate with the
other two wireless companies and submit to the Fire Chief a list of the
quantities of all hazardous, flammable and combustible materials, liquids
or gases to be stored, used, or handled on-site. These liquids and
materials shall be classified according to the Uniform Fire Code using the
"Orange County Fire Authority Chemical Classification Handout." The
submittal shall provide a summary sheet listing each hazard 'class, the
total quantity of chemicals stored per class, and the total quantity of
chemicals used in that class. All forms of materials are to be converted to
units of measure in pounds, gallons, and cubic feet. The total amount of
hazardous materials may not exceed the exempt amounts per outside
control area as required by the 1997 Uniform Fire Code Article 80. if the
total amount of' hazardous materials exceeds the exempt amounts per
outs.ide control area, the applicant shall submit an alternative location or
mitigation measures to the CommUnity Development Department and
· O'CFA for review and approval. No permits shall be issued without
clearance from the Fire Chief.
(5)
4,2
Prior to the issuance of a building permit, the applicant shall contact the
Orange County Fire Authority Hazardous Materials Services Section at-(714)
744-0463 to Obtain a "Hazardous Materials Disclosure chemical Inventory
and Business Emergency Plan" packet. 'This shall be completed and
submitted to the Fire Chief prior to the issuance of a bull. ding permit.
(5)
4.3
4,4'
Prior to the issuance of a building permit, plans for the fire alarm system
shall be submitted to the Fire Chief for review and approval. PleaSe note
this condition applies only if an approved smoke detection system is
required to be installed to protect the battery system. This System shall be
operational prior to a final inspection approval.
An emergency Knox Box shall be installed on the gates enclosing the
· .ground equipment prior to final inspection and operation of the facility.
FEES
(1).
5.1
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 $43.00 (forty-three
dollars) tO enable the City to file the appropriate .environmental
documentation for the project. If within such forty-eight (48) hour period that
applicant has not delivered to the Community Development .Department the
above-noted check, the statute of limitations for any interested party to
DR 02-020
September 19, 2002
Page 10
(1) 5.2
(1) 5.3
(1) 5.4
challenge the environmental determination under the provisions of the
California Environmental Quality Act could be significantly lengthened.
The applicant shall remit $99.62 of Orange County
development plan review fee payable to the City of Tustin.
Fire Authority
The applicant shall pay City Attorney fees for review of the Ground Lease
which is estimated at $190.00. Additional review time is $150.00 per hour.
Prior to issuance of any building permits, payment shall be made of all
applicable fees, including but not limited to, the following. Payment shall
be required based upon those rates in effect at the time of payment and
are subject to change.
a,
Building plan check and permit fees to the Community Development
Department based on the most current schedule.
b,
Public Works plan check deposits, to the Engineering/Public Works
Department based on the most current sChedule.
C.
Orange COunty Fire Authority plan check and inspection fees to the
Community DeVelopment. Department based upon the most current
schedule.
S:\Cdd~JUSTINA\current planning\Letters-Memos\DR 02-020.DOC
APPENDIX A
AGREEMENT TO CONDITIONS IMPOSED
I,. the undersigned, hereby agree to comply with all conditions imposed by the
Community Development Department of the City of Tustin on approval of Design
Review 02-020 with conditions as stated in Exhibit A attaChed to the letter dated
September 19, 2002.
By:
Title:
Applicant:
Pacific Bell WireleSs, LLC,
a Nevada limited liability company
D/B/A.Cingular Wireless
By: GSM Facilities, LLC, its sole member
By: Cingular Wireless, LLC, its agent