HomeMy WebLinkAbout08 COMMUNICATIONS SITE LICENSE AGREEENT WITH CINGULAR WIRELESS PCS (AT&T) AT VETERANS SPORTS PARKAgenda Item 8
Reviewed:
AGENDA REPORT city Manager
Finance Director 7T_
MEETING DATE: SEPTEMBER 17, 2019
TO: MATTHEW S. WEST, CITY MANAGER
FROM: DAVID A. WILSON, DIRECTOR OF PARKS AND RECREATION SERVICES
SUBJECT: COMMUNICATIONS SITE LICENSE AGREEMENT WITH NEW
CINGULAR WIRELESS PCS, LLC, (AT&T) FOR WIRELESS FACILITIES
AT VETERANS SPORTS PARK (1645 VALENCIA AVENUE)
SUMMARY:
Approval is requested for a Communications Site License Agreement between the City of
Tustin (Licensor) and New Cingular Wireless PCS, LLC (Licensee).
RECOMMENDATION:
It is recommended that the City Council authorize the City Manager to execute the
attached Communications Site License Agreement with New Cingular Wireless PCS, LLC
(AT&T), a Delaware limited liability company.
FISCAL IMPACT:
Under the proposed License Agreement, AT&T (Licensee) will pay $40,800 per year
($3,400 per month) for the right to install six panel antennas, 18 radio remote head units,
and three surge suppressors mounted to one 100' light standard next to the park's soccer
fields. Licensee will also pay for half the construction cost of a 12' x 42' structure on-site.
Half of this structure will hold AT&T's equipment cabinets and the other half will be kept
open in anticipation of another cellular provider moving into the space in the future. The
term of the agreement is 10 years with two 5 -year options. License payments will be
escalated annually at 4.00%. Over the initial 10 -year term, Licensee will pay $489,849. If
Licensee exercises the option to extend through 2039 (total of 20 years), total payments
will be $1,214,945.
CORRELATION TO THE STRATEGIC PLAN:
This action advances the following goals of the City's Strategic Plan:
• Goal B. Public Safety and Protection of Assets, Items 5a and 5e - by completing an
asset improvement that will provide funding to offset the cost of continuous park
maintenance and meet the needs of a growing population and anticipated changes in
technology.
• Goal C. Financial Strength, Item 4a - by providing a new source of revenue.
BACKGROUND:
Wireless facilities have been located in Tustin Sports Park since 1996. Currently there are
four cell sites at this location and the existing equipment facilities are located behind the
scoreboard adjacent to Jamboree Road. The antennas are located on the baseball field
light poles. The carriers for these cell sites are AT&T, T -Mobile, Verizon, and Crown
Castle/STC One, and the city is engaged in similar multi-year agreements for each.
This AT&T site will be the first wireless facility at Veterans Sports Park. The equipment
structure and associated utilities have been included in the scope of work for the
contractor currently constructing the park. Closer to the park's completion, AT&T will
install their equipment on the light standard. The inclusion of cell sites at the park will
ensure that patrons will have the reception necessary to make emergency calls from the
site as well as to access park and program related schedules, reservations, and
procedures.
The City Attorney has reviewed the Communications Site License Agreement and
approved it as to form.
Ily
David A. Wilson
Director, Parks and Recreation Services
Attachments: AT&T 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 New Cingular Wireless PCS, LLC, a
Delaware limited liability company, having a mailing address of 1025 Lenox Park Blvd.
NE, 3rd Floor, Atlanta, GA 30319 (hereinafter "Licensee").
1. GRANT OF LICENSE.
City currently owns or leases property, commonly known as Veteran's Sports
Park, located at 1645 Valencia Avenue, in the City of Tustin, County of Orange, State
of California, as legally described on Attachment 1 (the "Property"). City, at its sole cost
and expense, shall construct, install, maintain and own an antenna support structure
("Tower") in which City hereby grants a license to Licensee for the purpose of installing
and maintaining certain communications equipment consisting of antennas, cable runs,
radio transmitting and receiving equipment, conduits, wires, batteries, back-up
generators, utility lines and facilities, storage facilities including walls, fences and gates,
telephone facilities, microwave equipment and associated equipment ("Licensee's
Facilities"). City shall construct and install an equipment shelter within which Licensee
shall be permitted to maintain certain components of Licensee's Facilities subject to the
terms of this Agreement ("Equipment Shelter"). City shall be the sole owner of the
Equipment Shelter. Licensee, at its sole cost and expense, shall be responsible for one-
half (1/2) of the cost of construction and installation of the Equipment Shelter which
sum shall be One Hundred Sixty -Six Thousand Five Hundred and no/100 Dollars
($166,500.00) ("Licensee Payment for Equipment Shelter"). Licensee agrees to pay
Licensee Payment for Equipment Shelter within thirty (30) days of the execution of this
Agreement. Licensee shall only have access to and use of the approximately 200 sq. ft.
area of the Equipment Shelter designated as the "AT&T Facility" on Sheet Number A03
of Attachment 3. The license hereby granted to Licensee provides for the installation
and maintenance of Licensee's Facilities on the Property at those locations more
specifically set forth on Attachment 2 (the "Premises") and as depicted on Attachment 3
together with the non-exclusive right for ingress and egress from and to the nearest
public right-of-way, seven (7) days a week, twenty-four (24) hours a day, subject to any
restrictions stated herein, on foot or motor vehicle, including trucks, and for the
installation and maintenance of utility wires, poles, cables, conduits, and pipes over,
under, or along a twelve foot (12) wide right-of-way extending from the nearest public
right-of-way, Valencia Avenue, (the "Non- Exclusive Site Access Area") to the Premises
to be approved in form and content in the sole discretion of the Tustin Parks and
Recreation Department as generally depicted in Attachment 3, following notice by
Licensee of its intent to access the Licensee Premises or Facilities. The Tustin Parks and
Recreation Department reserves the right to change the Non -Exclusive Site Access Area
at any time upon notice to Licensee, and the Non -Exclusive Site Access Area shall not
remain a fixed location for access purposes; provided, however, that any new Non -
Exclusive Site Access Area provides Licensee with reasonable access to the Premises.
Licensee shall be responsible for installing and maintaining access required, 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 Area shall be below ground.
1.2 Motor vehicles, including trucks shall be limited in their access to Premises on
those portions of the Non -Exclusive Site Access Area that are depicted on Attachment
3.
1.3 Licensee shall have twenty-four (24) hour per day, seven (7) day per week access
to the Premises, without payment of any additional fees to City.
1.4 Licensee shall give twenty four (24) hours notice to the City prior to
commencing any routine maintenance or any other activity or work that would interfere
with the use of Veterans Sports Park or scheduled City activities or programs; provided
that no advanced notice shall be required in the event of an emergency, in which case
Licensee shall give City notice of its access to the Premises as soon as is reasonably
practical thereafter. Routine maintenance and work hours that result in interference with
the use of Veterans Sports Park or scheduled City activities or programs shall be subject
to review and approval by the City, which approval shall not be unreasonably denied,
delayed or conditioned. Licensee shall not interfere with City scheduled activities within
Veteran's Sports Park, except in the event of an emergency as defined in Section 12 of
this Agreement.
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Unless earlier terminated in accordance with this Agreement, the initial term of
this Agreement shall be for ten (10) years commencing upon the Effective Date ("Initial
Term") 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 Three Thousand Four Hundred and No/100 Dollars ($3,400.00) payable
to the City on the first of each month, commencing upon the earlier of (a) the date of
commencement of construction by Licensee; or (b) December 1, 2019
("Commencement Date"). However, the City and Licensee acknowledge and agree that
the initial License Payment shall be sent by Licensee to City within thirty (30) days of
the Commencement Date.
If the monthly License Payment is not paid within thirty (30) days after the due
date, a late charge equal to ten (10) percent of such overdue amount shall be paid by
Licensee for purposes of defraying the expense incidental to handling such delinquent
payment, together with interest from the date such payment was due until paid in full, at
the default rate of ten (10) percent, per annum, compounded annually. License Payments
attributable to partial months shall be prorated on a daily basis.
3.2 Security Deposit.
3.2.1 Payment and Form of Security Deposit. Prior to the Commencement
Date and prior to taking possession of the Premises, the Licensee shall pay to City a
Security Deposit in the amount equal to the monthly license fee for three (3) months, or
an amount of Nine Thousand Dollars ($9,000). In lieu of posting a cash Security Deposit,
Licensee may provide a performance bond to the City of Tustin in the total amount of
Nine Thousand Dollars ($9,000), naming the City as covered obligee, with surety and
in the form and substance each acceptable to the City in its sole discretion.
3.2.2. 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 (as defined in Section 13 below),
including but not limited to delinquent payments, correction of maintenance and repair
deficiencies and completion of construction. Application of amounts on deposit in
satisfaction and/or mitigation of damages shall be without prejudice to the exercise of
any other rights provided herein or bylaw to remedy an Event of Default.
3.2.3. Maintaining Security Deposit. In the event any or all of the Security
Deposit are applied in satisfaction and/or mitigation of damages Licensee shall
immediately deposit such sums as are necessary or replenish their performance bond to
restore Security Deposit to the full amount required hereunder.
3.2.4 Return of Security Deposit. Said cash Security Deposit amount shall be
returned or performance bond released upon termination of this Agreement less any
amounts that may be withheld from Licensee for Licensee's failure to perform its
obligations hereunder, provided that in the Event of Default, the entire performance
deposit or performance bond shall be forfeited to City.
3.3 Property Taxes and Fees. Licensee shall pay all applicable real property
taxes, and/or all possessory interest taxes or fees applicable to the Premises prior to
delinquency thereof. Licensee shall also pay and discharge punctually, as and when due,
any and all taxes upon Licensee's personal property, equipment and trade fixtures
installed about the Premises. Licensee shall have the sole responsibility to pay such taxes
or fees.
3.4 Utilities. Licensee shall obtain, at its sole cost and expense, any utilities
for the operation of Licensee's Facilities. Licensee shall fiarnish and install a separate
electrical 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 each anniversary of the
Commencement Date of this Agreement.
5. LICENSE 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 Agreement
terms related to insurance in any renewal license per City policy. The monthly
Licensee Payment for the Renewal Term shall be equal to the then -current Licensee
Payment as adjusted on an annual basis as described in Section 4, Annual License
Payment Increases. The option(s) to extend the term shall be exercised by written
notice given to the City not less than ninety (90) days prior to the Agreement
termination date. The Initial Term and all Renewal Terms shall be collectively
referred to herein as the "Term."
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 License as "City Manager") to provide other information in the planning
process such as site plans, design concepts and photo simulations of the structural
plans. Licensee shall have the right (but not the obligation) to enter the Premises for
the purpose of making necessary inspections and engineering surveys (and soil tests
where applicable) and other reasonably necessary tests (collectively "Tests") to
determine the suitability of the Premises for Licensee is Facilities and for the
purpose of preparing for the construction of Licensee's Facilities. In the event that
any of such applications for such Governmental Approvals should not be approved
or any Governmental Approval issued to Licensee is canceled, expires, lapses, or is
otherwise withdrawn or terminated by the governmental authority or are found to be
unsatisfactory so that Licensee will be unable to use the Premises for its intended
purposes, Licensee and agents representing the Licensee shall have the right to
terminate this Agreement. Notice of Licensee's exercise of its right to terminate shall
be given to City in writing by personal service, or first class mail, or by a nationally
recognized carrier, and if mailed, shall be effective upon the mailing of such notice
by Licensee. All License Payments including deposits or fees, if applicable, paid
prior to said termination date shall be retained by the City. Upon such termination,
this Agreement shall become null and void and all the Parties shall have no further
obligations, including the payment of money, to each other.
7. LICENSEE'S USE AND N[AINTENANCE OF PREMISES.
7.1 Use. Following City's approval of Licensee's Facilities plans and
specifications, Licensee may use the Premises for the provision of mobile/wireless
communications services, including transmission and reception of radio
communication signals on various frequencies providing there is no conflict with
the primary purpose of the City -owned property or City emergency communication
activities including, but not limited to, emergency service responders serving the
City (e.g., the City's Police communication system, the Orange County Fire
Authority communication system, and other emergency communication systems).
Accordingly, Licensee shall have the right to construct, maintain, install,
repair, and operate radio communications facilities on the Premises, 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
Licensees Facilities and in the repair and upgrading of the physical structure or
communications capabilities of the Licensee's Facilities, so long as the equipment,
cables or antennas remain within the original physical parameters of the Premises
and are consistent with City -approved building permit plans and specifications.
Licensee is responsible for notifying the City as described in this Section 7 prior to
entering the Premises. Licensee shall be responsible for the cost of any and all
damage to City -owned property including but not limited to, turf, concrete and/or
asphalt, buildings and/or apprentices caused by Licensee regardless of negligence.
Licensee shall repair and/or replace said damages or City will contract for said
services. If City makes such repairs and/or replaces said damages (only after giving
Licensee notice of intent to do so and an opportunity to cure), then Licensee shall
pay to City an amount equal to the amount of said costs which City has invoiced
Licensee within thirty (30) days after presentation by the City to Licensee of a
written invoice and supporting documentation. If any payment to be made by
Licensee is not received within such thirty (30) day period, a late charge equal to
ten (10) percent of such overdue amount shall be paid by Licensee for purposes of
defraying the expense incidental to handling such delinquent payment, together with
interest from the date such payment was due until paid in full, at the default rate of
ten (10) percent per annum.
7.3 Noticing on Premises. Licensee shall install any warning signs on or
about the Premises required by federal, state or local law, subject to prior notice to
and consent of City, which consent shall not be unreasonably denied, delayed or
conditioned.
7.4 Licensee Maintenance Notification. Licensee shall provide
notification to the City five (5) days prior to commencement of any construction
work on the Licensee's Facilities conducted by the Licensee or its agents, so as to
give the City the opportunity to post a notice of non -responsibility. Said work hours
are subject to the approval by the City. Licensee in providing regular maintenance
to the Licensee's Facilities shall provide twenty-four (24) hour notice to the City
prior to commencing any maintenance that would interfere with the use of the City
facilities or scheduled events; all other routine maintenance work may be conducted
without notice to the City. Said work hours shall be subject to review and approval
by the City.
7.5 Licensee Notification for Emergency Repair. Any work or repair of
an emergency nature will require the Licensee to provide notification by telephone
to the City of Tustin, Police Department's Watch Commander at 714.573.3200 or
other designee of the City Manager who is identified by written notice to Licensee.
7.6 Maintenance of Licensee's Facilities. Licensee shall maintain its
Facilities and shall make all repairs to the Premises necessitated to keep the Premises
clean, safe, and in a condition that approximates the initially installed Licensee's
Facilities including exterior finishes. If the Licensee is responsible for installing any
landscaping on the Property as a result of any government permits or approvals,
once the initial installation is completed, City shall be responsible for the ongoing
maintenance thereof. In the event any portion of the Facilities and/or any parts
regardless of fault including but not limited to damage caused by vandalism or Acts
of God, except if damage is caused solely by the gross negligence or willful
misconduct of City, its employees, agents, contractors or volunteers, prove to be
defective or shall require repair or prompt maintenance to prevent further
deterioration, the Licensee shall, promptly on demand by the City and in no event
later than seven (7) calendar days thereafter, complete such required repair or work
and continuously prosecute the same to completion at its sole cost and expense.
Damage caused by graffiti shall be removed promptly within forty-eight (48) hours
after demand by City to Licensee. This time period for completion of any required
work may be extended with written authorization from the City in its sole discretion.
In the event such authorization is not given and required work and repairs is not
completed within time frames noted herein, or any additional time granted by the
City for completion of work, City shall have the right but not the obligation to take
such actions as are necessary to complete such work, correct such defect or effect
such repair. Any costs incurred by the City or its contractors in performing such
work shall be due and payable by Licensee within ten (10) calendar days of receipt
by Licensee of written demand by the City. If any payment to be made by Licensee
is not received within such ten (10) calendar day period, a late charge equal to ten percent
(10%) of such overdue amount shall be paid by Licensee for purposes of defraying the
expense incidental to handling such delinquent payment, together with interest from the
date such payment was due until paid in full, at the default rate of ten percent (10%) per
annum.
8. CITY'S USE OF PREMISES.
8.1 City Business. Notwithstanding the grant of license rights to Licensee,
City and the public shall have the right to conduct City Business on the Property and
within the Non -Exclusive Access Area, excluding that portion of the Premises identified
for Licensee's Facilities. Nothing in the Agreement shall impair or impact the ability of
the City or the public to use any area adjacent or near the Premises for any lawful
purpose; provided such use does not interfere with the Licensee's use of the Premises
or operation of its Facilities thereon. "City Business" shall include, but not be limited to
the following: maintenance, landscaping, construction, concessionaires, City sponsored
events, and active and passive park activities located on or near the Premises, so long as
the City Business does not interfere with or impair the operation of Licensee's Facilities.
City shall have the right to inspect Licensee's Facilities by providing at least twenty four
(24) hours advance notice to Licensee, except in cases of emergency.
8.2 Co -Location. Licensee acknowledges and agrees that City policy is to
provide for co -location of communication tower facilities. In the event that a third party
wishes to collocate equipment within/on Licensee's Premises, Licensee shall require
such third party to enter into a license directly with the City for use of ground space
outside of the Premises, and for use of the Non -Exclusive Site Access Area and utility
easements therefore. Licensee acknowledges that the City shall retain the authority and
absolute right to enter into a license agreement with other mobile/wireless
communications providers ("Additional Licensee") to utilize space on the Property,
excluding the Premises. City agrees that any subsequent license agreement for an
Additional Licensee shall include a provision that, as a condition precedent to using such
space, Additional Licensee shall not interfere with the operations of Licensee's
Facilities, and shall indemnify, defend and hold harmless Licensee and its employees,
agents, contractors and subcontractors for any and all losses, claims, liabilities, damages,
costs and expenses (including reasonable attorney's, court and appellate fees and costs)
and injuries (including personal injuries or death) caused or contributed to by Additional
Licensee, its employees, agents, contractors, subcontractors and invitees.
8.3 City Use of Tower for Park Li Ming, City shall construct the Tower so
that it is structurally and functionally capable of supporting City's lighting equipment,
as specified in Attachment 3. City shall be responsible for equipping and installing the
City Park lighting on Tower as specified by the City's Parks and Recreation Department,
the Department of Public Works, and the City's Building Division. The City shall
have the right, but not the obligation, to install lighting equipment thereon, as such
lighting equipment is generally shown on the Site Plans attached hereto as
Attachment 3, which lighting equipment shall at all time remain the personal
property of the City and the City shall at all times be solely responsible and liable
for the installation, operation, maintenance and repair thereof, including but not
limited to replacement of lights and all other ownership obligations relating thereto,
except for damage resulting from the negligence or willful misconduct of Licensee.
If City intends to make any changes to such lighting equipment or if the installation
will deviate at all from that shown on Attachment 3 hereto, City must first obtain
Licensee's prior written consent to such changes, which consent shall not be
unreasonably denied, delayed or conditioned. City will notify Licensee of any
installation, construction, maintenance, repair and removal work to be conducted on
the Tower, and will coordinate the scheduling of such activities with Licensee so
that Licensee can power down its equipment, if necessary, to meet any ANSI
(defined in Section 11.1 below) standards or any other applicable laws, orders or
regulation relating to Maximum Permissible RF Exposure.
9. INDEMNITY.
9.1 Licensee Indemnification of City. To the maximum extent permitted
by law, Licensee shall defend, with counsel acceptable to City, indemnify, and save
harmless City and its officers, employees, and agents from, and shall pay all costs,
expenses and reasonable attorney's fees for all trial and appellate levels and post
judgment proceedings in connection with, any and all claims and demands, actions,
proceedings, losses, liens, costs and judgments of any kind and nature whatsoever,
including expenses incurred in defending against legal actions, for death or injury
to persons or damage to property and for civil fines and penalties to the extent arising
out of the occupation or use of the Premises by Licensee, its employees, agents,
servants, guests, invitees, contractors, or sublessees, including the following:
9. 1.1 Any dangerous, hazardous, unsafe or defective condition, in or on the
Premises, of any nature whatsoever, which may exist by reason of any act, omission,
neglect, or any use or occupation of the Premises by Licensee, its officers, agents,
employees, sublessees, licensees or invitees from commencement of the term of the
License Agreement;
9.1.2 Any operation conducted upon or any use or occupation of the
Premises by Licensee, its officers, agents, employees, sublessees, licensees or
invitees under or pursuant to the provisions of this License Agreement or otherwise;
9.1.2.1 Any act, omission, or negligence of Licensee its officers,
agents, employees;
9.1.2.2 The loss of, or damage to any property of Licensee by theft
or otherwise;
9.1.2.3 Any failure of Licensee, its officers, agents, employees
or sublessees to comply with the terms or conditions of this License
Agreement or any applicable federal, state, regional or municipal law,
ordinance, rule or regulation related to the use or occupancy of the Premises.
10. INSURANCE.
10.1 Licensee shall provide, and require any contractors or subcontractors
to obtain and maintain substantially the same coverage as required of Licensee, and
maintain at its own expense during the Term of the work the following insurance
covering all work under this Agreement. Licensee shall require and verify that all
subcontractors maintain insurance meeting all the requirements stated herein. Such
insurance shall be provided with insurers eligible to do insurance business in the State
of California, with a rating of at least A-, VII or better according to the latest Best's
Key Rating Guide, except that the City will accept Workers Compensation
Insurance rated B-, VIII or better or from the State Compensation Fund. Evidence
of such insurance in the form of Certificates and signed Insurer Endorsements as
applicable shall be delivered to the City prior to commencing with work. The signed
Insurer Endorsements (or a copy of the policy binder, if applicable) shall specifically
identify the work and shall provide that (1) said insurance shall not be cancelled,
except if City is given at least thirty (30) days advance written notice of any
cancellation or termination of insurance; (2) commercial general liability insurance
shall be primary to and not contributing with any other insurance maintained by City,
as to Licensee's negligence, and shall include the City, and any related entity of the
City, as as additional insureds as their interest may appear; (2) Licensee's wa&-as
omVertsafion itisurance shall contain a provision that the insurer waives any right of
subrogation against the City insured parties which may arise by reason of any
payments made under a policy; and (4) if Licensee is self insured for Workers'
Compensation, Licensee shall submit to City a copy of its certification of self
insurance. All insurance shall be maintained on an occurrence basis and shall
include the following:
10.1.1 Commercial General Liability Insurance. Commercial general
liability and property damage insurance covering the Premises -Operations,
contractual liability coverage, broad form property damage, and bodily injury or
death, with a combined single limit of not less than $2,000,000 per occurrence and
$2,000,000 general aggregate.. Coverage shall be at least as broad as Insurance
Services Office Commercial General Liability coverage (occurrence Form CG 00
01). Licensee may satisfy this requirement by obtaining the appropriate
endorsement to any master policy of liability insurance Licensee may maintain.
10.1.2 Workers' CoMpensation Insurance. To the extent that
Licensee has employees, workers' compensation insurance in an amount and form
meeting allapplicable requirements of the California Labor Code, covering all
employees of Licensee and all risks to such persons.
10.1.3 Deductibles. Licensee shall be at sole risk of any deductibles on
any required coverage.
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 verified. 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. Blanket endorsements are acceptable in lieu of signed insurer endorsements. All
certificates and required endorsements are to be received and approved by City before
the Commencement Date of the Agreement.
10.1.6 Vehicle Insurance. Licensee shall maintain sufficient automobile
liability insurance on all owned, non -owned, and hired vehicles accessing the licensed
Premises and such insurance shall be in the amount of $1,000,000 per accident for bodily
injury and property damage. Coverage shall be at least as broad as Insurance Services
Office Form Number CA 00 01 covering Automobile Liability, Code 1 (any auto).
10.1.7 Notwithstanding the forgoing, Licensee may, in its sole
discretion, self -insure any of the required insurance under the same terms as required by
this Agreement. In the event Licensee elects to self -insure its obligation under this
Agreement to include City as an additional insured, the following conditions apply: (i)
City shall promptly and no later than thirty (30) days after notice thereof provide
Licensee with written notice of any claim, demand, lawsuit, or the like for which it seeks
coverage pursuant to this Section and provide Licensee with copies of any demands,
notices, summonses, or legal papers received in connection with such claim, demand,
lawsuit, or the like; (ii) City shall not settle any such claim, demand, lawsuit, or the like
without the prior written consent of Licensee; and (iii) City shall fully cooperate with
Licensee in the defense of the claim, demand, lawsuit, or the like.
11. MISCELLANEOUS LICENSEE RESPONSIBILITIES.
1.1.1 Maximum Permissible Exposure. Licensee shall comply with all present
and future laws, orders and regulations relating to Maximum Permissible Exposure
("MPE") and other related health issues directly applicable to its operation of Licensee's
Facilities, as well as the American National Standards Institute (ANSI) standards.
Without limiting the provisions of Licensee's indemnity contained herein, Licensee, on
behalf of itself and its successors and assigns, shall indemnify City, its officials, officers,
and employees from and against all claims of personal injuries due to violation of MPE
to the extent such personal injuries are actually caused by Licensee's Facilities on the
Premises.
11.2 Non -Interference by Licensee of City Events z The Licensee shall not
interfere or cause to interfere with activities on adjacent City -owned sites including
sports activities and cultural events. Licensee shall notice the City pursuant to Section
7, Licensee's Use and Maintenance of Premises, of this Agreement regarding
maintenance, repair and installation work.
12. EMERGENCY USE OF SITE.
In cases of emergency, Licensee shall make available to the City police, fire and
emergency services a location for City's communication equipment on Licensee's
Facilities at no cost to City on a temporary basis, not to exceed thirty (30) days. The
City is responsible for the cost of installing and maintaining its own communication
equipment. In addition, City shall indemnify, defend and hold harmless Licensee, its
officers, directors, partners, shareholders, employees, agents, contractors or
subcontractors from and against any and all losses, claims, liabilities, damages, costs
and expenses (including reasonable attorney's fees and costs) and injuries (including
personal injuries or death) arising from or in connection with City's use, operation,
maintenance or repair of equipment on the Premises and Licensee Facilities, except
those resulting from the negligence or willful misconduct of Licensee or Licensee's
officers, directors, partners, shareholders, employees, agents, contractors or
subcontractors. The space to be made available will not create interference with
Licensee's communications operations and radio frequency transmissions previously in
use and operating in compliance with all government regulations. During such cases of
emergency, the City entities will be afforded twenty-four (24) hour access to its
equipment at the Premises. In addition, for such emergency use only, the City will be
provided "power backup" by Licensee at the Premises, if available, on a temporary basis;
provided City hereby waives any and all rights and claims against Licensee for any
damages, injury or costs that may arise should there be an interruption or outage in use
of such "power backup."
13. DEFAULTS.
It shall constitute an Event of Default under this Agreement, if a party (the
"Defaulting Parry"):
13.1 Failure to Timely Pay ("Monetary Default"). Fails to timely pay any sum
required to be paid by the Defaulting Parry 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 fifteen (15) 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 such that it cannot be reasonably accomplished within such thirty
(30) day period, but only if the Defaulting Party has commenced such cure within such
thirty (30) day period and thereafter continuously and diligently pursues the cure to
completion to the satisfaction of the Defaulting Party.
13.4 Remedies. Upon occurrence of an uncured Default by the Parties, the
Injured Party may:
13.4.1 Terminate the Agreement. By written notice to the
Defaulting Party pursuant to Section 16 of the Agreement.
13.4.2 Seek Performance. See specific performance of the
obligations under the Agreement.
13.4.3 All Other Rights and Remedies. Exercise any of its rights
and remedies at law or in equity, or otherwise as provided in this
Agreement.
14. LICENSEE'S COMPLIANCE WITH ENVIRONMENTAL LAWS.
14.1. Hazardous Materials. Licensee shall not bring any Hazardous
Materials (as defined below) onto the Premises, except for sealed batteries,
propane/diesel/gasoline, HVAC system, halon/FM200 fire suppression system, 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 and 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 disrupt Licenseels 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 following such fire or other
casualty, the License Payment shall be abated during the period of repair following
such fire or other casualty in proportion to the degree to which Licensee's use of the
Premises is impaired.
16. TERMINATION.
16.1. Compelled Termination. If, during the License Agreement Term,
there is a determination made pursuant to a non -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, then Licensee shall immediately cease all
operations on the Premises and the City or Licensee may terminate this Agreement
immediately upon written notice to the other party.
16.2. Termination by Licensee. Licensee may terminate this Agreement by
notice to City if (i) Licensee does not obtain all permits, consents, easements, non-
disturbance agreements or other approvals (collectively "Approval") reasonably
desired by Licensee or required from any governmental authority or any third party
related to or reasonably necessary to operate, install, maintain, replace, or remove
Licensee's Facilities, or if any such approval is canceled, expires or is withdrawn or
terminated without any fault of Licensee, or (ii) Licensee experiences any
technological interference to its operations at the Premises, including, without
limitation, signal strength, (iii) the Property or Licensee's Facilities are, or become,
unacceptable under Licensee's design or engineering specifications for Licensee's
Facilities or the communications system to which Licensee's Facilities belong, so
long as Licensee pays City a termination fee equal to six (6) months of the then
current License Payment, or (iv) upon ninety (90) days' written notice by Licensee
if Licensee determines that the Property or Licensee's Facilities are inappropriate or
unnecessary for Licensee's operations due to economic reasons so long as Licensee
pays the City an early termination fee equal to six (6) months' of the then current
License Payment, or (v) City fails to cure a default within sixty (60) days after
receipt of written notice thereof to cure, or upon any longer period as may granted
to City by Licensee pursuant to Section 13.3. Upon termination, except in the case of a
termination for an Event of Default by City, all prepaid rent shall be retained by City. In
the event Licensee abandons its property for ninety (90) days, including, but not limited
to, antennas, support structures, cabling, equipment, radios or any ancillary equipment,
it shall become the property of the City. Abandonment shall be defined as stoppage of
License Payment for three (3) consecutive months, provided that City has notified
Licensee of its failure to make such License Payments in accordance with Section 13,
and failure to provide City with written communication by Licensee regarding use of
Licensee Facilities; City is under no obligation to contact Licensee regarding status of
Licensee Facilities during this period.
16.3. Termination by City. In the event that Licensee does not cure an Event
of Default pursuant to Section 13, the City may terminate this Agreement, or upon thirty
(30) days prior written notice if the City and Licensee fail to agree upon a Relocation
Site in accord with Section 17 of this Agreement.
17. RELOCATION RIGHT BYCITY.
17.1. City Right to Order Relocation. Anytime after the expiration of the First
Renewal Term, the City shall have the one-time right to relocate Licensee's Facilities to
alternate space on the Property; to be performed by Licensee or its agents, at the
Licensee's sole cost, to be done in accordance with subsections 17.2 and 17.3 below.
Upon relocation of Licensee's Facilities, the access area and utility rights-of-way areas
will be relocated as required, in the sole discretion of City in coordination with any utility
provider, to operate and maintain Licensee's Facilities. Any relocation of the Licensee's
Facilities shall be consistent with Chapter 3 of Division 4 of the California Public
Utilities Code (Section 7901 et seq) and other sections of the Public Utilities Code, as
applicable except that the provisions of this Section 17.1 shall only remain in force and
effect for twenty-five (25) years. Notwithstanding anything in this Agreement to the
contrary, under no circumstances is Licensee responsible or liable to relocate any of the
City's equipment or any Additional Licensee's equipment, such responsibility and
liability remaining solely with the entity that owns or operates such equipment.
17.2. Exercising Right to Relocation. City shall exercise City's relocation right
under Section 17.1 above by delivering written notice (the Notice") to Licensee. In the
Notice, City shall propose an alternate site within or on the Property to which Licensee
may relocate Licensee's Facilities ("Relocation Site"). Licensee shall have sixty (60)
days from the date it receives the Notice to evaluate City's proposed Relocation Site,
during which period Licensee shall have the right to conduct tests to determine the
technological feasibility of the proposed Relocation Site. If Licensee fails to approve of
such proposed Relocation Site in writing within the sixty-day (60) period, Licensee shall
be deemed to have disapproved such proposed Relocation Site. If Licensee
disapproves such Relocation Site, then City may thereafter propose another
Relocation Site by Notice to Licensee in the manner set forth above. If the City and
Licensee fail to find an alternative Relocation Site within six (6) months of the initial
Notice being delivered by the City, the License Agreement shall be terminated
pursuant to Section 16, Termination. However, if City and Licensee find an
alternative Relocation Site, 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 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 OFTERMINATION.
Upon termination of this Agreement, Licensee shall within ninety (90) days
remove all of Licensee's Facilities and all personal property and restore the
Premises, as defined in this Agreement, to the condition in which it existed
immediately prior to Licensee's construction on the Premises, reasonable wear and
tear and casualty excepted. City acknowledges that all of the equipment and personal
property of Licensee shall remain the personal property of Licensee and shall not be
deemed fixtures, and Licensee shall have the right to remove such facilities. City
may, at its sole discretion, agree to provide reasonable additional time to remove
Licensee's Facilities. In such event, Licensee shall pay the License Payment at the
then -existing monthly rate as adjusted upward by twenty-five percent (25%) until
such time as the facilities and personal property are removed. In the event the
Licensee fails to remove the facilities and personal property within such ninety (90)
day period as requested by the City, the City may remove the Licensee's Facilities
and personal property at the sole cost and expense 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 Licensee. This post- installation testing process shall be repeated for every
proposed frequency addition and/or change to confirm the intent of the "frequency
planning" process has been met. Licensee shall provide a 24-hour phone number to
which interference problems may be reported. To ensure continuity on all interference
issues the name, telephone number, fax number, and e-mail address of a "single point of
contact" in Licensee's Engineering and Maintenance Departments shall be provided to
the City prior to activation of the Licensee's Facilities as well as a telephone number to
its Network Operations Center.
19.2. Notes to be Added to Licensee's Submitted Plans. Licensee recognizes
that the frequencies used by the Licensee's Facilities 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 Licensee's Facilities, 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 Property.
The Licensee shall provide a 24-hour phone number to which interference
problems may be reported. To ensure continuity on all interference issues the name,
telephone number, fax number, and e-mail address of a "single point of contact" in
Licensee's Engineering and Maintenance Departments shall be provided to the City
upon activation of Licensee's Facility as well as a telephone number to its Network
Operations Center.
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.
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 Rim 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/Subletting.
20.7.1 Licensee shall not assign, transfer or sublet any right or interest
in this Agreement without written approval of the City; provided, however, that
Licensee may, without City approval, assign its interest to its parent company,
any subsidiary or affiliate of it or its parent company or to any successor -in -
interest or entity acquiring more than fifty percent (50%) of its stock or assets,
subject to any financing entity's interest, if any, in this Agreement.
All other assignments shall require review and approval by the City.
Upon a City -approved assignment, in which Licensee's assignee assumes all
liabilities and obligations of Licensee subsequent to the effective date of such
assignment, and in which Licensee retains liabilities and obligations accruing
prior to the effective date of such assignment under applicable law, Licensee
shall be relieved of all future performance, liabilities, and obligations under this
License Agreement, provided that the assignee shall assume all of Licensee's
obligations herein.
20.8 No Joint Venture. The Parties acknowledge and agree that this
Agreement shall not be deemed or constructed as creating a partnership, joint venture or
similar association between the City and Licensee and the relationship between the
Parties shall remain solely that of contracting Parties.
20.9 Notices. Any notice required to be given under this Agreement shall be
provided in writing, unless otherwise indicated, and may be provided by personal
service or first class mail, postage prepaid, or sent next -business -day delivery by a
nationally recognized overnight courier as follows:
To City:
City of Tustin
300 Centennial Way
Tustin, California 92780
Attention: City Manager's Office
With a copy to:
Tustin City Attorney's Office
c/o Woodruff, Spradlin & Smart
555 Anton Boulevard, Suite 1200
Costa Mesa, CA 92626
To Licensee:
New Cingular Wireless PCS, LLC
Attn: Network Real Estate Administration
Re: Cell Site # CLL01302
Cell Site Name: Veteran's Sports Park (CA)
Fixed Asset# 13895630
1025 Lenox Park Blvd NE, 3rd Floor
Atlanta, GA 30319
With a copy to:
New Cingular Wireless PCS, LLC
Attn: AT&T Legal Dept — Network Operations
Re: Cell Site # CLL01302
Cell Site Name: Veteran's Sports Park (CA)
Fixed Asset# 13895630
208 S. Akard Street
Dallas, TX 75202-4206
City or Licensee may from time to time designate any other address for notices or
deliveries by written notice to the other party. Notice shall be effective upon actual
receipt as shown on the receipt obtained pursuant to the foregoing.
20.10 Time is of the Essence. Time is of the essence with respect to any act to
be performed under thisAgreement.
20.11 Interference with Licensee's Facilities. Licensee's Facilities and
operations shall not interfere with the communications configurations, frequencies
or operating equipment which exist on City's Property on the Commencement Date
which operate and continue to operate within their frequencies and in compliance
with all laws ("Pre-existing Communications"), and Licensee's Facilities and
operations shall comply with all non- interference rules of the FCC. Upon written
notice from City of apparent interference by Licensee with Pre-existing
Communications, Licensee shall have the responsibility to promptly terminate such
interference or demonstrate to City with competent information that the apparent
interference in fact is not caused by Licensee's Facilities or operations. City shall
not, nor shall City permit any subsequent tenant or occupant of any portion of City's
Property to, engage in any activities or operations which interfere with the
communications operations of Licensee described in this Agreement. Such
interference with Licensee's communications operations shall be deemed a material
breach by City, and City shall have the responsibility to promptly terminate said
interference. In the event any such interference does not cease promptly, the Parties
acknowledge that continuing interference will cause irreparable injury to Licensee,
and therefore Licensee shall have the right to bring a court action to enjoin such
interference or to terminate this Agreement immediately upon notice to City. City
agrees to incorporate equivalent provisions regarding non-interference with Pre-
existing Communications into any subsequent leases, licenses or rental agreements
with other persons or entities for any portions of City's Property.
20.12 This Agreement shall be binding upon an inure to the benefit of the
Parties, their respective successors, personal representative and assigns.
20.13 Quiet Enjoy So long as Licensee is not in default under this
Agreement, Licensee shall be entitled to quiet enjoyment of the Premises during the
Term of this Agreement, and Licensee shall not be disturbed in its occupancy and
use of the Premises.
20.14 Former Military Installation. The Property, which was referred to
formerly as the Marine Corps Air Station, Tustin, was closed as a military installation
and is in the process of being disposed of by the United States and conveyed to the City
pursuant to the Defense Base Closure and Realignment Act of 1990, as
amended. Portions of the Property have been conveyed or transferred to the City by
Quitclaim Deed recorded in the Official Records of the County of Orange, California
("Quitclaim Deed"), or by Lease in Furtherance of Conveyance dated June 16, 2004
("LIFOC"). Both the Quitclaim Deed and the LIFOC contain various environmental
notices and environmental restrictions binding upon the Licensee's use and enjoyment
of the Property; copies of such Quitclaim Deed and LIFOC have been provided to the
Licensee. In addition, portions of the Property are required to be used exclusively for
park and recreation purposes pursuant to the United States Department of the Interior
National Parks Service regulations. Those portions of the Property subject to the LIFOC
will be conveyed by the United States to the City by Quitclaim Deed at such time as the
United States satisfies its obligations under law. Licensee will be required to
acknowledge and comply with environmental notices and environmental restrictions (if
any), related to the Property that may be contained in such future Quitclaim Deed.
20.15 Attachments. Attached hereto are the following, all of which
constitute part of this Agreement:
A. Attachment 1, Legal Description of the Property
B. Attachment 2, The Premises
C. Attachment 3, Licensee's Facilities and Non -Exclusive Site Access Area
D. Attachment 4, Agreement to Conditions Imposed
***SIGNATURES ON FOLLOWING
PAGE***
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the
date and year first above written
ATTEST:
City Clerk
APPROVED AS TO FORM:
By:
City Attorney
CITY OF TUSTIN
By:
Matthew S
Date:
West, City Manager
LICENSEE:
New Cingular Wireless PCS, LLC,
a Delaware limited liability
company
By: AT&Tility Corporation
Its: 1V4a/nad r l�
Name:
Date: Zc) n
6 hA V-� '�:) NA 0 p� NUJ A Cc C2
Attachment 1
Legal Description of Property — Veterans Sports Park
All that certain real property situated in the County of Orange, State of California, described
as follows:
Assessor's Parcel Number: 430-282-26
Veteran's Sports Park at Tustin Legacy is an approximately 31.5 -acre parcel located at the
former Marine Corps Air Station (MCAS) Tustin (now a developing master planned
community known as Tustin Legacy). Veteran's Sports Park has been envisioned as part of
the Tustin Legacy development since the base was announced for closure in the early 1990s.
The Department of Defense recognized the City of Tustin (the "City") as the Local
Redevelopment Authority (LRA) for preparation of the required reuse planning documents
beginning upon the announcement of the base closure, which culminated into the adoption
of the MCAS Tustin Specific Plan/Reuse Plan in 1996. Veteran's Sports Park is a key
component of the plan.
In addition to planning, the City was also selected to receive roughly 75% of the former base
property from the Department of the Navy for development and implementation of the
plan. A bulk of the property was transferred to the City in 2002, however, eleven areas
(known as "Carve -Outs") were initially leased to the City by the Navy until such time as
environmental remediation issues were adequately addressed. Seven of the eleven Carve -
Outs have been conveyed since 2002.
Veteran's Sports Park is located on four Navy Reuse Parcels (1, 19, 22, and 40) as shown in
the attachment. All of these parcels are located within Carve -Out 5 and are leased to the
City via two "Leases in Furtherance of Conveyance (LIFOC)", executed in May 2002 and
June 2004. The LIFOCs provide most of the same rights as property ownership, which has
allowed the City to complete tens of millions of dollars' worth of public improvements to date,
including commencement of grading and utility work at the Veteran's Sports Park. The
Department of Navy is completing the final steps necessary to convey the Veteran's Sports
Park parcels.
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Attachment 4
Agreement to Conditions Imposed
Community Development Department
February 20, 2019
Victor Flores
Reliant Land Services
1745 W. Orangewood Avenue, Suite 103
Orange, CA 92868
TUSTIN
BUILDING OUR FUTURE
HONORING OUR PAST
SUBJECT: APPROVAL OF DESIGN REVIEW 2019-00006 (DR -2019-00006)
APPLICATION; A REQUEST TO ESTABLISH A POLE -MOUNTED WIRELESS
FACILITY WITHIN THE VETERANS SPORTS PARK LOCATED AT 1645
VALENCIA AVE.
Dear Mr. Flores:
Thank you for your application resubmitted on January 17, 2019, requesting authorization to install
a wireless telecommunications facility onto a stadium light standard at Veterans Sports Park at
1645 Valencia Avenue inclusive of six (6) panel antennas, eighteen (18) radio remote head units,
three (3) surge suppressors, one (1) GPS antenna, and associated equipment to be installed
within a new equipment shelter to be built by the City. Your application is identified as Design
Review 2019-00006 (DR -2019-00006) and is deemed complete. The Community Development
Department is pleased to inform you that your project has been approved subject to the conditions
of approval contained in the attached Exhibit A.
Approval of DR-2019-OW06 is contingent upon the applicant signing and returning an "Agreement
to Conditions Imposed" form as established by the Community Development Department In
accordance with Condition 1.4 of Exhibit A. In addition, a valid License Agreement with the City is
required In accordance with Condition 1.3 of Exhibit A.
Should you have any questions or concerns regarding this project, please contact Mary Salman at
(714) 573-3134.
Si
lizabeth A. Binsa
Director of Community Development
Attachments: Exhibit A — Findings and Conditions of Approval
Agreement to Conditions imposed form
cc: David Wilson, Parks $ Recreation Director
300 Centennial Way, Tustin, CA 92780 9 P:(714)573-3100 • F: (714) 573.3113 0 www.tustinca.org
EXHIBIT A
FINDINGS AND CONDITIONS OF APROVAL
DESIGN REVIEW 2019-00006
1645 VALENCIA AVENUE
1. The Community Development Department finds and determines as follows:
A. A proper application for Design Review 2019-00006 (DR -2019-00006) was
submitted by Victor Flores of Reliant Land Services, on behalf of AT&T,
requesting authorization to install six (6) panel antennas, eighteen (18) radio
remote head units, three (3) surge suppressors, one (1) GPS antenna on a
stadium light pole and associated equipment inside a new equipment
shelter located at 1645 Valencia Avenue.
B. The site is within the Tustin Legacy Specific Plan (SP 1) Planning Area 6
zoning district, designated as Tustin Legacy Specific Plan Planning Area 6
in the General Plan Land Use Element and the future location of Veterans
Sports Park. The proposed wireless facility meets the development
standards for SP 1.
C. That Tustin City Code Section 7262 requires Design Review for new
aboveground utility facilities and their accessory equipment located on
public property and in the public right-of-way. City Council Resolution No.
01-95 provides guidelines for aboveground utility facilities on public property
and within the public right-of-way and the project has been reviewed for
consistency with the guidelines.
D. That the location, size and general appearance of the proposed project as
conditioned is compatible with the surrounding area in that the light pole
would be of a stealth design to be compatible with the existing light poles
designed to illuminate the sports fields and all associated equipment would
be located within an equipment building to be constructed by the City.
E. That the proposed facility will provide winless coverage to an area that is
currently underserved by the existing nearby facilities.
F. 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.
G. That the location, size, aesthetic features, and general appearance of the
proposed wireless facility complies with City Council Resolution No. 01-95
and will not impair the orderly and harmonious development of the area, the
present or future development therein, or the community as a whole. In
making such findings, the Community Development Director has considered
at least the following Items:
DR -2019-00006
1645 Valencia Ave.
February 20, 2019
Page 2
1. Exterior materials and colors — As conditioned, the proposed panel
antennas, radio remote head units, GPS antenna and associated
mounting hardware shall be painted to match the light pole.
2. Towers structures — The associated light pole height is consistent
with a typical stadium light pole for a community sports field, That
the stadium light pole will be constructed by the City and its designee.
3. Stealth Facility — The proposed wireless facility is of a stealth design
as light poles. All new accessory equipment will be located within an
equipment building and underground.
4. Co -location — The proposed facility has been conditioned to evaluate
requests for co -vocation and determine the feasibility of additional
carriers on the light pole.
5. Accessory Equipment — All accessory equipment is located within an
equipment building and underground and will not be visible.
6. Landscape — As conditioned, existing landscaping that is destroyed
or removed as a result of installing the wireless facility shalt be
replaced subject to City approval.
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. Required Removal — Upon termination of the license agreement, the
proposed facility would be required to be removed.
9. Undergrounding — All of the utilities servicing the project site would
be located underground.
10. Appearance and design relationship of proposed structures to
existing structures and possible future structures in the
neighborhood and public thoroughfares — As conditioned, the
proposed project is designed to match the color of the light pole. The
proposed antennas would be located on the light pole in a
configuration similar to existing light -pole mounted wireless facilities
In other City sports parks.
11. Development Guidelines and criteria as adopted by the City
Council — The Proposed project complies with Design Guidelines
adopted by the City Council.
DR -2019-00006
1645 Valencia Ave.
February 20, 2019
Page 3
H. This project is Categorically Exempt pursuant to Section 15303, Class 3 of
Title 14, Chapter 3 of the California Code of Regulations (Guidelines for the
California Environmental Quality Act).
II. The Community Development Department hereby approves DR -2019-00006
authorizing the installation of six (6) panel antennas, eighteen (18) radio remote
head units, three (3) surge suppressors, one (1) GPS antenna on a stadium light
pole and associated equipment within a new equipment building at 1645 Valencia
Ave., subject to the following conditions:
GENERAL
(1) 1.1 The proposed project shall substantially conform with the Tustin City
Code, Tustin guidelines and standards and be consistent with submitted
plans for the project date stamped February 7, 2019, on fife with the
Community Development Department, as herein modified, or as modified
by the Director of Community Development in accordance with this
Exhibit. The Director of Community Development may also approve
subsequent minor modifications to plans during plan check if such
modifications are consistent with provisions of the Tustin City Code. The
proposed project shall be subject to final field inspection by the Planning
Division.
(1) 1.2 All the conditions contained in this Exhibit shall be complied with as
specified, subject to review and approval by the Community Development
Director.
(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. 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 DR -201 M0006 is contingent upon the applicant and property
owner signing and returning to the Community Development Department
a notarized "Agreement to Conditions Imposed" form. The form shall be
established by the Director of Community Development.
STANDARD CONDITION (5) RESPONSIBLE AGENCY REQUIREMENT
CEQA MITIGATION (6) LANDSCAPING GUIDELINES
CALIFORNIA CODEIS (7) PC/CC POLICY
DESIGN REVIEW *** EXCEPTION
DR -2019-00006
1645 Valencia Ave.
February 20, 2019
Page 4
Design Review approval is also contingent on establishing a valid License
Agreement with the City for the subject project. 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) 1.5 The applicant shall agree at Is 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 parry
against the City, its officers, agents, and employees, which seeks to
attach, set aside, challenge, void, or annul an approval of the City Council,
the Planning Commission, or any other decision-making body, including
staff, concerning this project. The City agrees to promptly notify the
applicant of any such claim or action filed against the City and to fully
cooperate In the defense of any such action. The City may, at this sole
cost and expense, elect to participate In defense of any such actions under
this condition.
(1) 1.6 Any violation of any of the conditions imposed is subject to Issuance of an
Administrative Citation pursuant to Tustin City Code Section 1162(a).
(1) 1.7 The Community Development Department may review DR -2019-00006
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 DR -2019-00006 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 Ordinance.
(1) 1.9 Any public improvements damaged by the applicant adjacent to this
project shall be repaired and/or replaced by the applicant as determined
by the Engineering Division and shall include but not be limited to curb,
gutter, street paving, and drive apron.
(1) 1.10 The frequencies used by the wireless facility shall not interfere with the
Public Safety 800 MHz Countywide Coordinated Communications System
(CCCS).
(1) 1.11 Operation of the wireless facility shall be in compliance with the proposed
methods of operation as proposed by the applicant and noted on the
plans:
DR -2019-00006
1645 Valencia Ave.
February 20, 2019
Page 5
a. The applicant shall provide a 24-hour phone number to which
interference problems may be reported. To ensure continuity on all
interference issues the name, telephone number, fax number, and 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. This condition will also
apply to all existing facilities (AT&T) in the City of Tustin. The applicant
shall file the accessory equipment identification number, company
name, person responsible for maintenance of the accessory
equipment, and the phone number with the Public Works Department.
b. The applicant shall ensure that licensee or other users shall comply
with the terms and conditions of DR -2019-00006 and shall be
responsible for the failure of any licensee or other users under the
control of the applicant to comply.
c. Radio frequency emissions shall not exceed the radio frequency
emission guidelines of the Federal Communications Commission
(FCC), as such guidelines may be amended from time to time. The
applicant shall provide the Community Development Department a
pre- and post -installation test showing compliance with the guidelines
established by the FCC.
USE RESTRICTIONS
(4) 21 The wireless facility shall be limited to installing six (6) panel antennas,
eighteen (18) radio remote head units, three (3) surge suppressors, one
(1) GPS antenna on a stadium light pole and associated equipment within
a new equipment building located at 1645 Valencia Ave. All antennas shall
be located as depicted in the approved plans and associated ground
mounted equipment shall be located within the equipment building.
(1) 2.2 The applicant shall be responsible for obtaining any required approvals or
clearances from the applicable easement holders for work in any easement
areas, I applicable.
(4) 2.3 The facility shall be subject to final inspection by a representative of the
Planning Division. Additional screening or stealth design measures may be
required by the Planning Department at final inspection.
(1) 2.4 The structure and all related facilities shall be regularly maintained and
inspected for safety and aesthetics by the applicant or the property owner in
accordance with the approved plans.
(1) 2.5 The equipment shall not bear any signs or advertising devices (other than
certification, warning, or other required seals or signage).
DR -2019-00006
1645 Valencia Ave.
February 20, 2019
Page 6
(1) 2.6 Utilities associated with the proposed facility that are not contained within
the equipment building, such as but not limited to telecommunication and
power supplies, shall be located underground.
(1) 2.7 No outdoor storage shall be permitted except as approved by the Tustin
Community Development Director.
(1) 2.8 Any damage done to existing park landscape or the removal of
landscaping necessary to install the aboveground accessory equipment
shall be repaired or replaced with landscaping materials similar in number,
type, and size as approved by the Directors of Community Development,
Public Works and Parks and Recreation.
(1) 2.9 The plans shall identify the access route to service the facility.
(3) . 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.
(4) 2.11 The aboveground equipment shall be constructed of a material that will be
rust resistant (i.e. stainless steel, etc.). The wireless service provider shall
be responsible for treating any rust by either repainting or any other
method recommended by the manufacturer that eliminates the rust.
(1) 2.12 Prior to building permit issuance, the applicant shall post a bond with the
City to ensure that facility is built to the specifications and design as
represented in the approved Design Review and building pians. Final
design and materials are subject to review and approval by the City
(4) 2.13 The proposed antennas, radio remote head units and mounting hardware
shall be painted to match the light pole.
(1) 2.1.4 The Licensee shall give twenty-four (24) hours' notice to the City prior to
commencing any routine maintenance or any other activity or work that
would interfere with the use of the park or scheduled City activities or
programs; provided that no advanced notice shall be required in the event
of an emergency, in which case Licenses shall give City notice of its access
to the Premises as soon as is reasonably practical thereafter.
DR -2019-00008
1645 Valencia Ave.
February 20, 2019
Page 7
Routine maintenance and work hours that result in interference with the use
of the park or scheduled City activities or programs shall be subject to review
and approval by the City, which approval shall not be unreasonably denied,
delayed or conditioned. The Licensee shall not interfere with City scheduled
activities within Veterans Sports Park, except In the event of an emergency
as defined in the license agreement.
NOISE
(1) 3.1 All construction operations including engine warm-up, delivery, and
k>ading/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 the progress of the work.
(7) 3.2 Noise emanating from the equipment, if any, shall not exceed the City's Noise
Standards.
PLAN SUBMITTAL
(3) 4.1 At the time of building permit application, the plans shall comply with the
latest edition of the State and the City of Tustin adopted codes: Caldbmia
Building Code, California Electrical Code, California Plumbing Code, City
Ordinances, and State and Federal laws and regulations.
(1) 4.2 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 65 percent of the project waste material or the amount
required by the California Green Building Standards Code.
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 in the amount of five (5)
percent of the project's valuation as determined by the Building Official,
rounded to the nearest thousand, or $2,500, whichever is greater. In no
event shall a deposit exceed $25,000.
DR -2019-00006
1645 Valencia Ave.
February 20, 2019
Page 8
c. Prior to issuance of any permit, the applicant shall submit the required
security deposit in the form of cash, cashier's check, personal check, or
money order made payable to the "City of Tustin".
(1) 4.3 Prior to any work in the public right-of-way, an Encroachment Permit shall
be obtained from and applicable fees paid to the Public Works
Department.
(1) 4.4 The applicant shall obtain the building permit and encroachment permit
concurrently.
FEES
(1 X5) 5.1 Prior to issuance of building permits, payment shall be made of all
applicable fees, Including but not limited to, the following;
a. Building and Planning Plan Check and Permit Fees
b. Public Works and Parks & Recreation Fees
C. Orange County Fire Authority Fees
(1) 5.2 Within forty-eight (48) hour; 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.
AGREEMENT TO CONDITIONS IMPOSED
1, the undersigned, hereby ague to comply with all conditions attached to the letter dated
February 14, 2019, imposed by the Community Development Department of the City of
Tustin regarding approval of Design Review 20194)0006.
is
Sig ure
Print Name
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AT&T