HomeMy WebLinkAbout05 FIRST AMENDMENT TO COMMUNICATIONS SITE LICENSE AGMTAgenda Item 5
Reviewed:
AGENDA REPORT City Manager
Finance Director N/A
MEETING DATE: NOVEMBER 5, 2019
TO: MATTHEW S. WEST, CITY MANAGER
FROM: CHAD CLANTON, ACTING DIRECTOR, PARKS AND RECREATION
SUBJECT: FIRST AMENDMENT TO COMMUNICATIONS SITE LICENSE AGREEMENT
WITH LOS ANGELES SMSA LIMITED PARTNERSHIP, DBA VERIZON
WIRELESS, FOR EXISTING WIRELESS FACILITIES AT TUSTIN SPORTS
PARK (12850 ROBINSON DRIVE)
SUMMARY
First Amendment to Communications Site License Agreement between the City of Tustin and
Los Angeles SMSA Limited Partnership, dba Verizon Wireless. The Amendment would allow
Verizon to make additional improvements to an existing communications site as described in
Exhibit 3-A of the attachment.
RECOMMENDATION
It is recommended that the City Council take the following actions:
1. Approve the attached First Amendment to Communications Site License Agreement
with Los Angeles SMSA Limited Partnership, dba Verizon Wireless; and
2; Authorize the City Manager to execute this First Amendment.
FISCAL IMPACT
The City entered into a Communications Site License Agreement (License Agreement) with
Los Angeles SMSA Limited Partnership, dba Verizon Wireless (Licensee), on October 20,
2015, for one carrier to occupy the Licensee's facilities, with a term of 10 years with two 5 -year
options. License payments are escalated annually at 4%. The Licensee has just started the
fifth year of the agreement and is paying approximately $44,920 per year ($3,743 per month)
for the right to retain existing facilities and antennas at Tustin Sports Park.
The First Amendment to the Communications Site License Agreement will require the
Licensee to pay an additional $6,240 per year ($520 per month) for the upgrade and
expansion of their wireless equipment at the site as detailed in Exhibit 3-A of the attachment.
The term of the First Amendment is coterminous with the current License Agreement of 10
years with two 5 -year options, with license payments escalated annually at 4%. Over the
remaining six years in the initial 10 -year term, the Licensee's gross license payments will total
$335,096. If the Licensee exercises the option to extend through 2034 (total of 16 years),
gross license payments will total $1,020,193. The City will receive 80% of the gross payments
($816,154) and the other 20% will go to ATS Communications as the City's consultant for this.
License Agreement, including any amendments and extension periods.
CORRELATION TO THE STRATEGIC PLAN
This action advances Goal C of the City of Tustin Strategic Plan regarding Financial Strength by
providing opportunities for new/increased revenues.
BACKGROUND
Wireless facilities have been located in Tustin Sports Park since 1996. Verizon's equipment
facilities are located in an underground vault between ballfields #1 and #2 and the antennas are
located on the light standards located adjacent to the same ballfields. The licensee completed
construction of this site in 2016 and has just started the fifth year of the current License
Agreement term of 10 years with two 5 -year options.
In September 2018, Verizon Wireless approached ATS Communications with a proposal on
upgrading and expanding their wireless facilities at the Tustin Sports Park to include additional
equipment (remote radio units and diplexers) mounted on both light standards. Since that time,
ATS Communications has been in negotiations (on behalf of the City) with the Licensee to
establish the terms of the First Amendment. In addition to increasing the license fees in exchange
for authorization to make improvements to the site, the First Amendment also includes the
following provisions:
• Verizon Wireless is able to make future modifications without further increases in License
fees.
Upon expiration of the License Agreement, ownership of the light standards transfers to
the City.
Respectfully submitted,
Chad Clanton
Acting Director, Parks & Recreation
Attachment — First Amendment to Communications Site License Agreement
This First Amendment to Communications Site License Agreement ("Amendment")
is made as of the latter signature date below ("Effective Date") by and between the City of Tustin,
a municipal corporation, whose address is 300 Centennial Way, Tustin, California 92780
(hereinafter "City"), and Los Angeles SMSA Limited Partnership, d/b/a Verizon Wireless, a
California limited partnership with its principal offices located at One Verizon Way, Mail Stop
4AW100, Basking Ridge, New Jersey 07920 (hereinafter "Licensee"). The City and Licensee
are at times collectively referred to herein as the "Parties."
WHEREAS, the City and Licensee entered into that certain Communications Site License
Agreement dated October 20, 2015 ("Agreement") whereby City licensed to Licensee certain
Premises, therein described and defined, that are a portion of the Property located at 12850
Robinson Drive, Tustin, CA 92782, more commonly known as Tustin Sports Park; and
WHEREAS, Licensee intends to change, modify or relocate the Licensee's Facilities, and
the City is willing to approve such change; modification and/or relocation; and
WHEREAS, City and Licensee intend to amend the Agreement to clarify scope of
Licensee's permitted use of the Premises; and
WHEREAS, Licensee agrees to transfer, at City's option, ownership of the Towers, as
that term is defined herein, to City upon the expiration or earlier termination of the Agreement;
and
WHEREAS, City and Licensee intend to adjust the License Payment in conjunction with
the modifications to the Agreement contained herein; and
WHEREAS, City and Licensee intend to amend the Agreement to modify the notice
section thereof; and
WHEREAS, City and Licensee intend to amend the Agreement to permit Licensee to add,
modify and/or replace equipment in order to comply with any current or future federal, state or
local mandated application, including but not limited to emergency 911 communication services;
and
WHEREAS, City and Licensee, in their mutual interest, intend to amend the Agreement
as set forth below accordingly.
NOW THEREFORE, in consideration of the foregoing and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, City and Licensee
agree as follows:
1. Grant of License. The second sentence of Section 1 "Grant of License" of the
Agreement is deleted in its entirety and replaced with the following:
Licensee Site Name: Tustin Sports Park
"City hereby licenses to Licensee a certain portion of the Property containing
approximately 393 square feet including the air space above such ground space and certain
underground space for an underground equipment vault, as described on attached
Attachment 3-A (the "Licensee's Facilities") for the purpose of installing and maintaining
certain communications equipment consisting of two (2) antenna support structures
(collectively, the "Towers"), 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 (collectively, "Licensee's Facilities") on the Property at those
locations more specifically set forth on Attachment 2 attached hereto and made a part
hereof (the "Premises") together with the non-exclusive right for ingress and egress from
and to the nearest public right-of-way, seven (7) days a week, twenty-four (24) hours a day,
subject to any restrictions stated herein, on foot or motor vehicle, including trucks, and for
the installation and maintenance of utility wires, poles, cables, conduits, and pipes over,
under, or along a twelve foot (12') wide right-of-way extending from the nearest public
right-of-way (the "Non -Exclusive Site Access Area") to the Premises to be approved in
form and content in the sole discretion of the Tustin Parks and Recreation Department as
generally depicted in Attachment 3-A."
For the avoidance of doubt, the balance of Section 1 of the Agreement remains unchanged
and in full force and effect. Notwithstanding anything to the contrary in this Amendment, Section
8.3 of the Agreement remains in full force and effect.
2. New Attachment 3-A. Licensee shall have the right, to change, modify or
relocate the Licensee's Facilities within the Premises only as more completely described on
attached Attachment 3-A. City's execution of this Amendment will signify City's approval as
licensor of Attachment 3-A. Attachment 3-A hereby replaces Attachment 3 to the Agreement in
its entirety. Notwithstanding the forgoing City approval as licensor, Licensee remains subject to
all requirements under all applicable laws, and remains responsible for obtaining requisite
Governmental Approvals, including as may be applicable state agency approvals, at no cost to
City.
3. Licensee's Use and Maintenance of Premises. Section 7.1 and 7.2 of the
Agreement is deleted in its entirety and replaced with the following:
447.1 Use. Subject to the terms and conditions of this Agreement, Licensee may
use the Premises for the transmission and reception of any and all communications signals,
and within the physical boundaries of the Premises for the installation, construction,
maintenance, operation, repair, replacement and upgrade of its communications fixtures and
related equipment, cables, accessories and improvements, provided 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). Licensee's use described in this Section 7.1 is
subject to City approval as licensor hereunder and requisite Governmental Approvals.
Notwithstanding the foregoing rights granted to Licensee, Licensee remains subject to
2
Licensee Site Name: Tustin Sports Park
requirements under all applicable laws, and remains responsible for obtaining requisite
Governmental Approvals at no cost to City.
7.2 Maintenance of Licensee's Facilities and Damage to City Property. Licensee
shall at all times during the Term keep and maintain the Premises and Licensee's Facilities in
good condition, reasonable wear and tear and damage from the elements excepted. After
initial installation of the Licensee's Facilities, Licensee shall modify Licensee's Facilities in
order to be in compliance with any current or future federal, state or local mandated
application, including but not limited to emergency 911 communication services. After the
initial installation of Licensee's Facilities, Licensee shall be entitled to modify, supplement,
replace, upgrade, or expand all or a portion of Licensee's Facilities within the physical
boundaries of the Premises without additional License Payments, at no cost to City. City
reserves the right to evaluate each such modification, supplement, replacement, upgrade or
expansion for compliance with this Section 7.2, and to require Licensee to work with City's
consultant (if any), and pay any associated fees therefor, at no cost to Licensor.
Notwithstanding the foregoing, Licensee remains subject to all requirements under all
applicable laws, and remains responsible for obtaining requisite Governmental Approvals at
no cost to City. Licensee is responsible for notifying the City as described in this Section 7
prior to entering the Premises for any proposed modifications, replacements, upgrades or
expansions. within the Premises of all or a portion of Licensee's Facilities. Licensee shall
indemnify City and shall be solely responsible for the cost of any and all damage to the extent
caused by Licensee to City -owned property including but not limited to, turf, concrete and/or
asphalt, buildings and/or appurtenances caused by Licensee, or Licensee's agents,
representatives, contractors, vendors or invitees, regardless of negligence by Licensee or
Licensee's agents, representatives, contractors, vendors or invitees but except to the extent
caused by City's negligence or willful misconduct. If Licensee fails to commence repairs
acid/or replace said damage within thirty (30) days of receipt of notice from City of said
damage then City will have the right to repair and/or replace said damage and Licensee shall
pay to City an amount equal to the amount of said out-of-pocket costs actually incurred which
City has invoiced Licensee within thirty (30) days after presentation by the City to Licensee
of a written invoice and documentation in support thereof. If any payment to be made by
Licensee pursuant to this Section 7.2 is not received by City 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."
4. Transfer of Ownership of Towers to City. Upon the expiration or earlier
termination of this Agreement and cessation of Licensee's operations of Licensee's Facilities on
the Premises, at City's option, Licensee shall transfer all of Licensee's right, title, interest in the
Towers, as well as any associated warranties related to construction and or product liability with
respect thereto to City, in their then "as -is" "where -is" condition, without any representation or
warranty from Licensee of any kind, express or implied, including warranties of merchantability
or fitness for a particular purpose and Licensee shall have no further liability or responsibility for
the same. City shall give Licensee written notice of its election to retain the Towers at least thirty
(30) days prior to the expiration of the Agreement or within fifteen (15) days after any earlier
Licensee Site Name: Tustin Sports Park
termination thereof. Such transfer under this Section shall be by a recordable Bill of Sale,
substantially in the form attached hereto as Attachment 6.
5. License Payment. Commencing on the first day of the month following the
Effective Date, the License Payment shall be increased by Five Hundred and Twenty and No/100
Dollars ($520.00) per month, subject to further adjustments as provided in the Agreement.
6. Notices. Section 20.9 of the Agreement is hereby deleted in its entirety and
replaced with the following:
"20.9 NOTICES. All notices, requests, demands and communications hereunder
will be given by first class certified or registered mail, return receipt requested, or by a nationally
recognized overnight courier, postage prepaid, to be effective when properly sent and received,
refused or returned undelivered. Notices will be addressed to the parties as follows.
If to City:
City of Tustin
300 Centennial Way
Tustin, CA 92780
Attention: City Manager's Office
If to LICENSEE:
Los Angeles SMSA Limited Partnership,
dba Verizon Wireless
180 Washington Valley Road
Bedminster, New Jersey 07921
Attention: Network Real Estate
Site: Tustin Sports Park"
With a copy to:
Tustin City Attorney c/o
Woodruff, Spradlin & Smart
555 Anton Boulevard, Suite 1200
Costa Mesa, CA 92626
With a copy to:
President
ATS Communications
4195 Chino Hills Parkway, #605
Chino Hills, CA 91709
(949) 344-1621
Tony@atscomm.com
7. Other Terms and Conditions Remain. In the event of any inconsistencies
between the Agreement and this Amendment, the terms of this Amendment shall control. Except
as expressly set forth in this Amendment, the Agreement otherwise is unmodified and remains
in full force and effect. Each reference in the Agreement to itself shall be deemed also to refer to
this Amendment.
Licensee Site Name: Tustin Sports Park
8. Capitalized Terms. All capitalized terms used but not defined herein shall have
the same meanings as defined in the Agreement.
IN WITNESS WHEREOF; the Parties hereto have executed this Amendment the date
and year last written below.
ATTEST:
CITY OF TUSTIN
By:
Erica Yasuda, Name: Matthew West, City Manager
City Clerk
Date:
APPROVED AS TO FORM:
By:
David E. Kendig
City Attorney
5
Licensee Site Name: Tustin Sports Park
LICENSEE:
Los Angeles SMSA Limited Partnership,
d/b/a Verizon Wireless
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ATTACHMENT 3-A
Licensee's Facilities and Non -Exclusive Site Access Area
See attached
Licensee Site Name: Tustin Sports Park
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