HomeMy WebLinkAbout1996-11-12; City Council; Resolution 96-3811
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RESOLUTION NO. 9 6 - 3 8 1
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF CARLSBAD, CALIFORNIA ACCEPTING LICENSE
AGREEhENT BETWEEN COX CALIFORNIA PCS, INC.
AND THE CITY OF CARLSBAD
Whereas, Cox California, PCS, Inc. wishes to enter into a License Agreement for the property kn
specifically identified as 2237 Janis Way, Assessor’s Parcel No. 167-540-52, commonly known as Ellery R
herein after referred to as the “Property”;
WHEMS, the City Council of the City of Carlsbad, California, agrees to enter into a License Agr
with Cox California PCS, Inc.; and
WHEREAS, Cox California PCS, Inc. agrees to all obligations in the License Agreement and CUI
and
WHEREAS, Cox California PCS, Inc. agrees to pay the City of Carlsbad without abatement, dedu
offset the following rental on or before the first day of each month this agreement:
(a) One thousand eight hundred dollars ($1,800) per month for the first year of this agreeme.
commencing on the first of the month following the adoption of this agreement;
(b) Commencing on the anniversary date of this License Agreement in the years, 2,3,4 and
monthly rent shall increase as follows:
Year 2: One thousand eight hundred and ninety dollars ($1,890) per month;
Year 3: One thousand nine hundred eighty-five dollars ($1,985) per month;
Year 4: Two thousand eighty-five dollars ($2,085) per month;
Year 5: Two thousand one hundred ninety dollars ($2,190) per month
WHEREAS, the Mayor hereby directors the City Manager to execute three original copies of the :
Agreement: and
NOW, THEREFORE, BE IT RESOLVED, by the City Council of the City of Carlsbad, California
follows:
1.
2.
That the above recitations are true and correct.
That the Council License Agreement attached hereto is hereby approved and the City Ml
authorized and directed to execute it on behalf of the City.
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PASSED, APPROVED AND ADOPTED at a meeting of the City Council of the City of Carlsbad
the 12th day of November , 1996, by the follov7ing vote to wit:
AYES: Council Members Lewis, Nygaard, Hall and Finnila
NOES: None
ABSENT: Council Member Kul
ATTEST:
(SEAL)
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LICENSE AGREEMENT
This Agreement made between the City of Carlsbad, a Municipal corporation organize(
and existing under the State of California, hereinafter for convenience referred to as “City”, an(
COX California PC& Inc., a California corporation, hereinafter for convenience referred to a
“Cox” commencing upon its execution by Cox.
RECITALS
1. The City is the owner of real property more specifically identified as Assessor’:
Parcel #167-540-52, commonly known as the Ellery Reservoir Site, and hereinafter referred to as
the “Property”.
2. The City now uses the Property for a water storage reservoir operated by the
Carlsbad Municipal Water District.
3. The Property is adequate in size to allow the installation of an antenna and
appurtenances thereto by Cox.
4.
Property.
Cox is desirous of installing a monopole antenna and appurtenances thereto on the
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5. The City is willing to allow Cox to install the monopole antenna and
appurtenances thereto under certain terms and conditions.
NOW, THEREFORE, City hereby grants to Cox a license to use the portion of the
property that is depicted in Attachment 1 hereto (the “premises”) for the purposes and subject to
the agreements and terms and conditions set forth herein:
LICENSEE‘S OBLIGATIONS
Cox agrees to do the following:
1. Use the Property for the purpose of constructing, maintaining and operating a
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telecommunication facility thereto, consisting of a maximum of seven base transmission unil
each approximately 3' x 3' x 5' high with a monopole and antennas as described in CUP 96-06
A security fence, consisting of chain link construction or similar but comparable construction
shall be placed around the perimeter of the facilities of Cox. All improvements shall be at Co:
expense. The City will maintain the property in a reasonable condition.
2. (a) Be responsible for installing any equipment, at expense of Cox, to eliminatt
any interference that might be caused by its location of radio transmitting or telecommunicatior
facilities or other equipment on the premises with the radio transmitting or telecommunicatiol
facilities of the Carlsbad Municipal Water District ("District") and City (including but no1
limited to the City of Carlsbad Police Department Facilities), as well as other parties already
located on the Property at the commencement of this license agreement.
(b) The City reserves the right to enter into agreements with other parties,
including but not limited to wireless communication carriers (hereinafter "Carriers") for use of
the Ellery Reservoir site. In the event that an additional Carrier is licensed to use the site it shall
be the new Carrier's responsibility, at &s expense, to ensure that such installation is constructed
and operated in accordance with applicable regulations issued by the Federal Communications
Commission ("FCC"), if any. If Carrier's plans and specifications are approved by City, City
shall notify Cox in writing as to the scheduled date and time of commencement of construction
and installation of Carrier's transmitting/receiving equipment not less than five (5) business days
prior to such date. Any change to the additional Carrier's approved antenna type and location
and/or change in transmitter types and power output shall be made compatible with Cox at
Carrier's sole expense.
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3. Be responsible for maintenance of any equipment and facilities installed on th
premises by Cox, to comply with all City, County, FAA and FCC regulations.
4. Be responsible for its own equipment. Provide fire, theft and extended coveragl
insurance for equipment and facilities installed for Cox.
5. (a) Be responsible for securing any necessary permits or conditional use pennit
fi-om any governmental agency to install any facilities of Cox on the Property. Cox ma:
substitute, modify and/or add to its communicatiodtransmitting antenna located on the Propert)
from time to time, provided that Cox first obtains any and all required governmental approval:
for such substitution, modification and/or addition and the approval of City. Any change to Cor
approved antenna type, number of antennas, antenna location and/or change in transmitter type
and power output shall, at the sole expense of Cox, be made in accordance with applicable
regulations issued by the FCC. If Cox plans and specifications are approved by City, Cox shall
notify all other Carriers in writing as to the scheduled date and time of commencement of
construction or installation of Cox modified equipment not less than five (5) business days prior
to such date. I
(b) It is understood and agreed that Cox ability to use and/or protect its interest in
the Property is dependent upon Cox obtaining all of the certificates, permits and other approvals
which may be required from any federal, state or local authority, and any easements which are
required from any third parties. City shall cooperate with Cox in its efforts to obtain such
approvals andor easements, as may be required for Cox facility as initially configured and
approved in CUP 96-06. If (i) any application and/or negotiations by Cox for any such
certificate, permit, license, easement, approval, policy of title insurance, or agreement is finally
denied, rejected and/or terminated, (ii) any such certificate, permit, license, easement, approval
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or agreement is canceled, or expires, or lapses or is otherwise withdrawn or terminated, (iii) ar
Hazardous Materials are discovered or otherwise become located on the Property, other than as
direct result of Cox activities thereon, or (iv) due to technological changes, Cox determines th
it is no longer practical to use the Premises for Cox intended purposes, then Cox shall have th
right to terminate this License Agreement, which termination shall be effective no sooner than 3
days Erom delivery of written notice from Cox to City provided Cox has removed all of il
property and equipment from the premises by that time, subject to the provisions in paragrap
eight of License's Obligations..
6. Be responsible for all utilities and any property taxes imposed as a result of the use o
the Property by Cox.
7. (a) Licensee understands and agrees that this licensing agreement may be revoked a
any time in the future if the City determines for any reason that this license agreement is not ix
the best interest of the City, notwithstanding any investment of Cox in improving the propert!
for its use.
The determination of license revocatip shall be within the sole discretion of the City. In the
event the City's revocation of a license is not due to a breach by Cox of one of the conditions 01
obligations provided for in this agreement, the City shall give Cox written notice of the necessity
of removal of the said facilities one hundred eighty (180) calendar days prior to the effective date
of the removal. Such removal or relocation shall be at the expense of Cox.
(b) If this license is revoked by the City due to a breach by Cox of one of its
obligations herein, the revocation shall be effective upon receipt of written notification of
revocation and Cox shall remove all of its personal property and equipment from the Property
within sixty (60) days or the City may remove it and charge Cox for the cost of removal, subject
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to the provisions of paragraph eight.
8. In the event either party terminates the Lease Agreement with the City c
Carlsbad, or upon its expiration, Cox shall have the option to assign all rights and ownership c
the monopole installed by Cox California PCS, Inc. to the Carlsbad Police Department or rest01
the premises to it’s original condition, pursuant to the provisions of the License Agreemen
including installing the current police tower now in place and removal of the monopole that wa
installed by Cox California PCS, Inc.
9. If upon expiration or termination of this agreement Cox remains on the Property, Coi
shall pay rent at two times the then existing monthly rate until such time as Cox vacates tht
premises by removal of its personal property and fixtures.
10. Exercise due diligence in utilizing the Property of the City so as to not interfere witE
utilization of the Property by the City, and Cox agrees to comply with any rules and regulation:
that the District may promulgate at any time in reference to utilization of the Property by any
party other than the City. It is understood by Cox that the Property is used by the City as a water
storage reservoir and as a part of the Carlsbad Municipal Water District water transmission
system of the City and that it is necessary to maintain adequate security at all times for the
primary utilization of the Property by the District.
11. Pay to City without abatement, deduction or offset the following rental on or before
the first day of each month of this agreement:
(a) One Thousand Eight Hundred ($1,800) dollars per month for the first year of
this agreement.
(b) Commencing on the anniversary date of this Licensing Agreement in years 2,
3,4 and 5, said monthly rent shall increase as follows if the license is still in effect:
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Year 2: One Thousand Eight Hundred Ninety ($1,890) dollars per month.
Year 3:One Thousand Nine Hundred Eighty-Five ($1,985)doIlars and per month.
Year 4:TWo Thousand Eighty-Five ($2,085) dollars and per month.
Year 5:Two Thousand One Hundred Ninety ($2,190) dollars per month.
Monthly rents may be pro-rated as required. If the City desires to continue th
license beyond five years, the rent amount shall be renegotiated at that time.
(c) If any of the monthly rental payments are not received by the City by the tent
(I@') day of the month in which they are due, the rent shall be deemed delinquent and a ten (10
percent penalty on the sum owing shall accrue on the late payment. If Cox should becomt
delinquent on two or more months rent, in any twelve month period, the City may revoke thi:
agreement forthwith and demand removal of all personal property within ten (10) days, 01
remove such property itself and charge Cox for the cost of removal.
12. (a) Waive all claims against the District and/or City of Carlsbad for any damages
to the personal property and equipment of, in, upon or about the Property and for injuries to Cox
its employees or agents in or about the Property, from any cause arising at any time, except those
arising from intentional wrong doing of the District, City or any employee or agent thereof, and
Cox will hold the City of Carlsbad ekempt and hamiless from any damage or injury to any
person, or any property, arising from the use of the Property by Cox, or from the failure of Cox
to keep its equipment and facilities in good condition and repair, as herein provided.
(b) Cox indemnification shall include any and all costs, expenses, attorneys fees
and liability incurred by the District and/or City of Carlsbad, its officers, agents, or employees in
defending against such claims, whether the same proceed to judgment or not.
(c) Cox shall at its own expense, upon written request by the District and/or City
of Carlsbad, defend any such suit or action brought against the District and/or City of Carlsbad,
its officers, agents or employees. Cox indemnification of the District and/or City of Carlsbad
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shall not be limited by any prior or subsequent declaration by Cox.
13. Obtain and maintain for the duration of the contract insurance against claims fc
injuries to persons or damage to property which may arise out of or in connection with thi
agreement, its agents, representatives, employers or subcontractors. Said insurance shall b
obtained from an insurance carrier admitted and authorized to do business in the State 0
California. The insurance carrier is required to have a current Best's Key Rating of not less tha]
"A-:VI' and shall meet the City's policy for insurance as stated in City Council Resolution Nc
9 1-403.
(a) Cox shall maintain the types of coverages and minimum limit indicatec
herein, unless a lower amount is approved by the City Attorney or City Manager:
1) Comprehensive General Liability Insurance. $1,000,000 combined
single-limit per occurrence for bodily injury, personal injury and property damage. If the
submitted policies contain aggregate limits, general aggregate limits shall apply separately under
this contract or the general aggregate shall be twice the required per occurrence limit.
2) Automobile Liability (for the use of an automobile by Cox
employees or agents or subcontractors in conjunction with its use of the premises) $1,000,000
combined single-limit per accident for bodily injury and property damage.
3) Worker's Compensation and Employer's Liability. Worker's
Compensation limits as required by the Labor Code of the State of California and Employer's
Liability limits of $1,000,000 per accident for bodily injury.
(b) Cox shall ensure that the policies of insurance required under this agreement
contain, or are endorsed to contain, the following provisions:
1) The District and City of Carlsbad shall be designated as an additional
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insured on all policies excluding Worker's Compensation.
2) Cox shall furnish certificates of insurance to the City befoi
commencement of work.
3) Cox shall obtain occurrence coverage, which shall be written as claim!
made coverage.
4) This insurance shall be in force during the life of the agreement an
shall not be canceled without 30 days prior written notice to the City sent by certified mail.
5) If Cox fails to maintain any of the insurance coverages required herein
then the City will have the option to revoke this license agreement, or may purchase replacemen
insurance or pay the premiums that are due on existing policies in order that the requirec
coverages may be maintained. Cox is responsible for any payments made by the District or Citj
of Carlsbad to obtain or maintain such insurance and the District and City of Carlsbad mal
collect the same from Cox or deduct the amount paid fiom any sums due Cox under this
agreement.
14. Cox and City agree that they will not use, generate, store or dispose of any
Hazardous Material on, under, about or within the Property in violation of any law or regulation.
''Hazardous Material" shall mean petroleum or any petroleum product, asbestos, any substance
known by the State of California to cause cancer and/or reproductive toxicity, andor any
substance, chemical or waste which is identified as hazardous, toxic or dangerous in any
applicable federal, state or local law or regulation. In the event of a breach of this provision by
either party, the other may terminate this agreement forthwith and pursue any remedies to which
it is entitled by law.
1 5. Licensee understands and acknowledges that this license granted herein is
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absolutely not assignable or transferable and any attempt to do so may result in a revocation (
the license at the will of the City.
LICENSOR‘S OBLIGATIONS
City agrees to do the following:
1. Allow the construction of a base transmission units and installation of antema on th
Property for use of Cox as approved in City of Carlsbad CUP No. 96-06 attached hereto a:
“Attachment 1”.
2. Allow reasonable ingress and egress for Cox to the Property, including access any
time in cases of emergency or
equipment failure.
3. Be responsible for its own equipment.
4. Grant any necessary easement coextensive with the terms of this license as required
for extension of electric and telephone service to the site as specified in City of Carlsbad CUP
96-06.
5. AIlow construction of pow^ line facilities to the site from existing facilities on the
EIlery Reservoir site.
6. Permit Cox ingress and egress to the Property to conduct such surveys, structural
strength analysis, subsurface boring tests and other activities of a similar nature as Cox may
deem necessary. All such activities shaIl be at the sole expense of Cox. Cox agrees to hold
District and City and the Property free and harmless from any cost, claims and damages, actual
or asserted, including costs of investigation andor defense thereto connected in any way with
said activities.
7. District and City and its agents and contractors shall have the right to enter the
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Premises upon forty-eight (48) hours advance notice to Cox, during reasonable business hou
and when accompanied by personnel of Cox, for the purpose of making any necessary alteratio
or repairs as provided in this License Agreement. In the event of an emergency, the notic
requirement will be waived.
8. All notices under this License Agreement shall be in writing and, unless othemi:
provided herein, shall be deemed validly given if sent by certified mail, return receipt requestec
or via recognized overnight courier service, addressed as follows (or to any other mailing addre:
which the party to be notified may designate to the other party by such notice). All noticc
properly given as provided for in this section shall be deemed to be given on the date when sent
Should District or Cox have a change ofaddress, the other party shall immediately be notified a
provided in this section of such change.
COX CALIFORNIA PCS, INC.:
18200 Von Karmaii
Irvine. CA 92612
Attn: Robbie Frazier
CITY OF CARLSBAD
1200 Carlsbad Village Drive
Carlsbad, CA 92008
Attn: Ray Patchett
Title: City ManaPer
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with a copy to: with a copy to:
Carlsbad MuniciDal Water District
5950 El Camino Real
Carlsbad, CA 92008
Attn: Robert J. Greanev
Title: General Manager
Executed by Cox California PCS, Inc. this day of ,1996.
COX CALIFORNIA PCS, TNC. CITY OF CARLSBAD
BY: BY:
Debbie S. Homing Raymond R. Patchett, City Manager
V.P. Technical Operations
The Carlsbad Municipal Water District, a
Municipal Corporation, hereby consents to
the above License Agreement and agrees to
be bound by its terns to the extent that it
the Carlsbad Municipal Water District BY:
Stanley B. Crair (District”) and City affects the Wate
District Vice President and General Manager the property used by the Wata
District as the Ellery Reservoir Site.
4‘ Robert J. Greaney, General Manager
Carlsbad Municipal Water District
Approved as to form:
Ronald R. Ball, City Attorney
BY: QAL Ekpsty City Attorney /I - /he. 96
(Proper notarial acknowledgment of execution by Cox PCS, Inc. must be attached)
(President or vice-president and secretary or assistant secretaiy nius[ sign for corporations. If
only one officer signs, the corporation must attach a resolution certified by the Secretary or
Assistant Secretary under corporate seal empowering that officcr to bind the corporation.)
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