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HomeMy WebLinkAboutSprint PCS; 2004-02-24;WIRELESS TELECOMMUNICATIONS FACILITY LICENSE AGREEMENT Sprint PCS - Calavera Hills Community Park This Agrement is made between the City of Carlsbad, a municipal corporation (“Licensor”), and Sprint PCS Assets, L.L.C. a Delaware Limited Liability Company (“Sprint PCS) (“Licensee”), effective Feb F%*P% a+* ,2005 (“Effective Date”). RECITALS A. Licensor is the owner of real property commonly known as the Calavera Hills Community Park (“Property”) and more particularly described in Exhibit “A.” B. Licensee desires access to and limited use of a portion of the Property to install, maintain and operate wireless telecommunication facilities and equipment as more particularly described in Conditional Use Permit (“CUP”) No. bl-bbq, attached as Exhibit “B.” C. Licensor is willing to allow Licensee access to and limited use of a portion of the Property for this purpose under certain terms and conditions. NOW, THEREFORE, the parties agree as follows: GRANT OF LICENSE 1. Scope of License. Licensor grants to Licensee a non-exclusive license to use the portion of the Property described in Exhibit “C” (the “Premises”) for the purposes of installing, maintaining, and operating the facilities and equipment described in CUP No. b I @I In addition to being subject to the terms and conditions in this Agreement, the license is subject to the terms and conditions of CUP No. o! 4% and any other required government approvals. 2. Term of License. The term of the license shall commence as of the Effective Date above (“Commencement Date”). The initial term shall be equal to the tenn of corresponding CUP No. 0 14 (“Initial Term”). Licensee shall have the option to renew the License for up to two additional terms, subject to and coextensive with the extension of CUP No. (“Renewal Terms”). The renewal of this Agreement is subject to any changes in the terms and conditions mutually agreed upon by the parties or requested by Licensor, including technological improvements to reduce the impact of the Licensee’s facilities and equipment. Licensee must provide the Licensor at least one hundred eighty (1 80) days written notice of its desire to renew and must submit a timely application for the extension of CUP No.0 J -Jq. The renewal shall not be effective unless and until the Licensee and Licensor have executed a written amendment to this Agreement setting fortb the particular terms and provisions of the renewal. City Attorney Approved Version #06.17.03 1 3. License Fee. Licensee shall make a one-time lump sum payment to Licensor of Forty Thousand Dollars ($40,000). In addition, Licensee shall pay an initial annual fee (the “License Fee”) of Thirty Thousand Dollars ($30,000). The fee is payable in equal monthly installments of Twenty-five Hundred Dollars ($2500), without abatement, deduction, or offset, on the first day of the month. The fee@) will be adjusted annually on the anniversary of the Commencement Date by the percentage increase in the most recently published Consumer Price Index-All Urban Consumers for the San Diego Metropolitan Statistical Area over the rate in effect on the Commencement Date of the prior year. This increase shall not be less than three percent (3%) or more than six percent (6%). If any monthly fee payment is not received by Licensor by the fifth day of the month in which it is due, the fee payment shall be deemed delinquent and ten percent (10%) interest shall accrue on the unpaid amount. IfLicensee is delinquent for two (2) or more months in any twelve (12) month period, Licensor may immediately terminate this Agreement and demand removal of Licensee’s facilities and equipment &om the Premises within ten (10) business days, or remove the facilities and equipment itself and charge Licensee for the cost of removal and storage. 4. Relationshh of License and CUP No. 61 4 . The granting of this license is contingent upon the continuing validity of CUP No. o 14 . This Agreement shall automatically terminate upon the expiration or revocation of CUP No. 0 I fl. The modification or extension of CUP No. & does not obligate the Licensor to modify or extend this Agreement nor does the continuing validity of CUP No. D 1-09 preclude the Licensor from exercising any rights under this Agreement, including the right to terminate this Agreement for convenience under paragraph 13 below. 5. Limitations on License. Nothing in this Agreement is intended to create an interest or estate of any kind or extent in the Property or Premises. Licensee firther acknowledges and agrees that this Agreement does not create a landlord-tenant relationship and Licensee is not entitled to avail itself of any rights afforded to tenants under the laws of the State of California. 6. No Warranty. Licensor makes no warranty or representation that the Premises are suitable for Licensee’s use. Licensee has inspected the Premises and accepts the same “as is.” Licensor is under no obligation to perform any work or provide any materials to prepare the Premises for Licensee. LICENSEE’S OBLIGATIONS Licensee shall: 7. Use the Premises solely for the purposes allowed within the scope of the license. If required by Licensor, a security fence, consisting of chain link construction or similar but comparable construction, shall be placed around the perimeter of the facilities and equipment of Licensee. All improvements shall be at Licensee’s expense. Licensor will maintain the Premises in a reasonable condition. City Attorney Approved Version #06.17.03 2 8. (a) Be responsible for constructing and operating Licensee’s equipment and facilities in according with applicable regulations issued by the Federal Communications Commission (“FCC”). This includes, without limitation, installing any equipment, at Licensee’s expense, to eliminate any interference that might be caused by the location of Licensee’s facilities and equipment with the existing facilities and equipment of Licensor or of other parties already on the Property at the commencement of this Agreement or with frequencies utilized by law enforcement and fire and rescue services personnel. (b) Understand and agree that this license is not exclusive. Licensor reserves the right to enter into agreements with other parties, including but not limited to telecommunications and information services providers (hereinafter “Carriers”) for use of the Property or Premises. Accordingly, License’s fhcilities and equipment must be designed, constructed, and installed in a manner that will allow for collocation. In the event that an additional Carrier is licensed to use the Property or Premises, it shall be the new Carrier’s responsibility, at its expense, to ensure that such installation is constructed and operated in accordance with applicable FCC regulations. If Licensor approves Carrier’s plans and specifications, Licensor shall notify Licensee in writing as to the scheduled date and time of commencement of construction and installation of Carrier’s facilities and equipment not less than five (5) business days prior to such date. Any change to the additional Carrier’s approved facilities, equipment, and location shall be made compatible with Licensee’s facilities and equipment at Carrier’s sole expense. Except as otherwise required by applicable law, disputes between the Licensee and other Carriers over the use of the Property or the Premises shall be submitted to Licensor’s City Manager or an authorized designee for final resolution. 9. Be fblly responsibie for any equipment and facilities installed on the Premises by Licensee, including providing fire, theft, and extended coverage insurance. 10. Comply with all applicable federal, state, and local laws, including FCC regulations, City of Carlsbad City Council Policy No. 64, and related City of Carlsbad Municipal and Zoning Code provisions. 11. (a) Be responsible for securing any necessary permits or conditional use permits from any governmental agency to install any facilities or equipment of Licensee on the Premises. Licensee may substitute, modi@ and/or add to its facilities and equipment located on the Premises from time to time, provided that Licensee first obtains any and all required governmental approvals for such substitution, modification andor addition and the written approval of Licensor. Licensor reserves the right to increase the License Fee if the Licensor determines that the substitutions, modifications, or additions materially alter the scope of the license. In addition, any change to Licensee’s approved antennae type, number of antennas, antenna location and/or changes in transmitter type and power output shall, at the sole expense of Licensee, be made in accordance with applicable regulations issued by the FCC. IfLicensee’s plans and specifications are approved by Licensor, Licensee shall notify all other Carriers in writing as to the scheduled date and time of commencement of construction or installation of Licensee’s modified equipment not less than five (5) business days prior to such date. City Attorney Approved Version #06.17.03 3 (b) Understand and agree that, in addition to obtaining and maintaining CUP No. 0 1401, Licensee’s ability to use the Premises for the purposes contemplated by this Agreement is dependent upon Licensee obtaining and maintaining all of the certificates, permits and other approvals which may be required from other federal, state or local authorities, and any easements which are required from any third parties. Licensor shall cooperate with Licensee in its efforts to obtain such approvals and/or easements, as may be required for Licensee’s facilities and equipment as approved in CUP No. 61 49- If (i) any application and/or negotiations by Licensee for any required certificate, permit, license, easement, approval, policy of title insurance, or agreement is finally denied, rejected andor terminated, (ii) any such certifkate, permit, license, easement, approval or agreement is canceled, or expires, or lapses or is otherwise withdrawn or terminated, (iii) any Hazardous Materials are discovered or otherwise become located on the Property or the Premises, other than as direct result of Licensee’s activities, or (iv) due to technological changes, Licensee determines that it is no longer practical to use the Premises for Licensee’s intended purposes, then Licensee shall have the right to terminate this License Agreement, which termination shall be effective no sooner than one hundred eighty (180) days fiom delivery of written notice fiom Licensee to Licensor provided Licensee has removed all of its property and equipment from the Premises by that time. 12. Be responsible for all utilities and any property taxes imposed as a result of the use of the Property by Licensee. Licensee specifically acknowledges that the grant of this license may subject Licensee to certain taxes under California Revenue and Taxation Code section 107.6 and agrees it is solely responsible for the payment of these taxes. 13. (a) At Licensee’s sole expense and within thirty (30) days after the mailing of written notice by Licensor, protect, temporarily disconnect, relocate, modi@ or remove its equipment, facilities, andor other property if Licensor determines, in it sole discretion, that Licensee’s equipment, facilities, andor other property are inconsistent with or interfere with Licensor’s current or planned use of the Property or Premises. Further, in consideration for Licensor’s agreement to enter into this License, Licensee waives any and all rights it may have under federal or state law for relocation assistance benefits if Licensor requires Licensee to relocate or make use of the Property or Premises in such a way as to displace Licensee from the Property or Premises. Licensee shall execute any fiuther documentation of this release and waiver as Licensor may reasonably require in the future. If Licensee does not protect, temporarily disconnect, relocate, or remove its equipment, facilities, and/or other property within the time period specified above, Licensor may remove the equipment, facilities, and property and charge Licensee for the cost of removal and storage. Alternatively, upon Licensee’s request, Licensor may approve the abandonment of Licensor’s facilities, equipment, or property in place. Upon approval, Licensee shall execute, acknowledge and deliver any necessary documents to transfer ownership of the facilities, equipment and property to Licensor. 14. Pay a fse of two times the then existing monthly rate if upon expiration or termination of this Agreement, Licensee remains on the Property. The increase will take effect on the first day after expiration or termination of this Agreement and continue until Licensee City Attorney Apved Version #06.17.03 4 vacates the Premises by removal of its facilities, equipment, and/or property, or by authorized abandonment in accordance with paragraph 13(c) above. As security for Licensee’s performance under this paragraph and paragraph 13, Licensee shall post a faithful performance bond, in a form acceptable to the City Attorney and in the amount of Twenty Thousand Dollars ($20,000) with the Engineering Department. The bond will be released upon Licensee’s written request, after confirmation by the City Engineer or a designee that the facilities and equipment have been removed and the Premises restored to the City Engineer’s satisfaction. 15. Exercise due diligence in utilizing the Premises of Licensor so as to not interfere with utilization of the Property or Premises by Licensor or other authorized persons, and Licensee agrees to comply with any rules and regulations Licensor may promulgate at any time in reference to utilization of the Property or Premises by any party other than Licensor. It is understood by Licensee that the Property is used by Licensor as a Community Park and as a part of the Community Parks system of the Licensor and that it is necessary to maintain adequate security at all times for the primary utilization of the Property by Licensor. 16. Waive all claims against Licensor for any damages to the personal property and equipment of Licensee in, upon or about the Property and Premises and for injuries to any employees of Licensee or their agents in, upon, or about the Property or Premises fiom any cause arising at any time. In addition, Licensee will indemniQ, defend, and hold Licensor, including their elected and appointed officials, officers, employees, contractors and agents (“Indemnified Parties”), exempt and harmless fiom any damage or injury to any person, or any property, arising fiom the use of the Property or Premises by Licensee or Licensee’s officers, employees, contractors, or agents, or fiom the failure of Licensee to keep the equipment and facilities in good condition and repair, as provided for in this Agreement. Licensee’s indemnification shall include any and all costs, expenses, attorneys fees and liability incurred by the Indemnified Parties in defending against such claims, whether the same proceed to judgment or not. 17. (a) Obtain and maintain for the duration of the Agreement and any and all amendments, insurance against claims for injuries to persons or darnage to property which may arise out of or in connection with use of the Property or Premises by Licensee or Licensee’s agents, representatives, employees or contractors. The insurance will be obtained fiom an insurance carrier admitted and authorized to do business in the State of California. The insurance carrier is required to have a current Best’s Key Rating of not less than “A-:V’. (b) Maintain the types of coverages and minimum limits indicated below, unless the City Attorney or City Manager approves a lower amount. These minimum amounts of coverage will not constitute any limitations or cap on Licensee’s indemnification obligations under this Agreement. Licensor, its officers agents and employees make no representation that the limits of the insurance specified to be carried by Licensee pursuant to this Agreement are adequate to protect Licensee. If Licensee believes that any required insurance coverage is inadequate, City AUomey Approved Version #06.17.03 5 Licensee will obtain such additional insurance coverage, as Licensee deems adequate, at Licensee’s sole expense. 1) Commercial General Liability. %1,OOO,OOO combined single-limit per occurrence for bodily injury, personal injury and property damage. If the submitted policies contain aggregate limits, the general aggregate will be twice the required per occurrence limit. 2) Automobile Liability. $1,000,000 combined single-limit per accident for bodily injury and property damage. 3) Workers Compensation and Employer’s Liability. Worker’s Compensation limits as required by the California Labor Code and Employer’s Liability limits of $1,000,000 per accident for bodily injury. 4) Professional Liability. Errors and omissions liability of not less than $1,000,000 per claim. Coverage must be maintained for a period of five years following the last date of completion of any construction or installation of facilities or equipment by Licensee on the Property or Premises. (c) Licensee will ensure that the policies of insurance required under this Agreement contain, or are endorsed to contain, the following provisions: 1) Licensor will be named as an additional insureds on General Liability. 2) Licensee will obtain occurrence coverage, excluding Professional Liability, which will be written as claims-made coverage. 3) This insurance will be in force during the life of the Agreement and any extensions of it and will not be canceled without thirty (30) day’s prior written notice to Licensor sent by certified mail pursuant to the Notice endorsements to Licensor. (d) Prior to Licensor’s execution of this Agreement and annually thereafter, Licensee will furnish certificates of insurance and endorsements to Licensor. (e) If Licensee fails to maintain any of these insurance coverages, the Licensor may immediately terminate this License. (f) Licensor reserves the right to require, at anytime, complete and certified copies of any or all required insurance policies and endorsements. 18. Refiain from using, generating, storing or disposing 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, and/or any substance, chemical or waste which is identified as hazardous, toxic or dangerous in any applicable federal, state or local law City Attorney Approved Version #06.17.03 6 or regulation. immediately terminate this agreement and pursue any remedies to which it is entitled by law. In the event of a breach of this provision by either party, the other may 19. Install, at its own cost: (a) a separate electrical panel and meter for its facilities and equipment and be responsible for all electrical costs attributable to its facilities and equipment. (b) a separate water meter for any landscaping required by CUP No. dl or other federal, state, or local approval and be responsible for all water and maintenance costs attributable to the this requirement. 20. Provide Licensor with “as-built” drawings for the facilities and equipment within thirty (30) days after the facilities and equipment are installed. 21. Perform the installation in a neat, responsible, workmanlike manner, using generally accepted construction standards, consistent with such reasonable requirements as shall be in imposed by Licensor. To ensure this obligation is met, Licensee agrees to submit to such inspections determined to be necessary by Licensor during the installation process and to promptly correct any deficiencies noted by Licensor during the inspection process. 22. Repair or refinish, at Licensee’s sole cost and expense, any Surface or other portion of the Property or Premises that is damaged by or during the installation, maintenance, or operation of the facilities and equipment. Without limiting any other available remedies, if License fails to repair or refinish such damage, Licensor may, in its sole discretion, but without any obligation to do so, repair or refinish the damage and Licensee shall reimburse Licensor all costs and expenses incurred in the repair or refinishing. 23. Ensure that the Premises are maintained in a clean, safe condition and that Licensee’s facilities and equipment are in good repair and fiee of any defects. LICENSOR’S OBLIGATIONS Licensor will: 24. Allow the construction and installation of equipment and facilities on the Property for use of Licensee, as approved in CUP No. d 144 . 25. Allow reasonable ingress and egress for Licensee to the Property, including access any time in cases of emergency or equipment failure. 26. Be responsible for its own equipment. 27. Grant any necessary temporary easement or license for as long as this License is in effect, as required for extension of electric and telephone service to the site as specified in CUP No. m?l City Attorney Approved VerSian #06.17.03 7 28. In addition to the right to inspect under Paragraph 21 above, Licensor and its agents shall have the right to enter the Premises upon twenty-four (24) hour’s advance notice to Licensee, during reasonable business hours, for any purpose consistent with Licensor’s status as the owner of the Property and Licensor under this Agreement. Such right is in addition to and in lieu of any right Licensor may have as the local regulatory authority. In the event of an emergency, the notice requirement will be waived. MISCELLANEOUS PROVISIONS 29. Any action at law or in equity brought by either of the parties for the purposes of enforcing a right provided by this Agreement will be tried in a court of competent jurisdiction in the County of San Diego, State of California, and the parties waive all provisions of law providing for a change of venue in these proceedings to any other county. 30. Licensee may not assign, sublicense or transfer the License granted by this Agreement, in whole or in part, without the prior written consent of Licensor, which Licensor may withhold in its sole discretion, and any attempt to do so without prior written consent is grounds for immediate revocation or termination of the License. 3 1. All notices under this License Agreement shall be in writing and, unless otherwise provided in this agreement, shall be deemed validly given if sent by certified mail, return receipt requested, or via recognized overnight courier service, addressed as follows (or to any other mailing address which the party to be notified may designate to the other party by such notice). All notices properly given as provided for in this section shall be deemed to be given on the date when sent. Should Licensor or Licensee have a change of address, the other party shall immediately be notified as provided in this section of such change. LICENSEE: LICENSOR: National Lease Management Group 6391 Sprint Parkway, Mailstop: KSOPHTO101-22650 Carlsbad, CA 92008 Overland Park, Kansas 6625 1-2650 Attn: City Manager copy to: sprint Law Department 6391 Sprint Parkway Mailstop: KSOPHTOlOl-Z2020 Overland Park, Kansas 6625 1-2020 Ann: Sprint PCS Real Estate Attorney CITY OF CARLSBAD 1200 Carlsbad Village Drive Title: 32. The waiver by Licensor of any breach of any term, covenant, or condition in this Agreement shall not be deemed to be a waiver of such tenn, covenant, or condition for any subsequent breach of the same or any other term, covenant, or condition of this Agreement. 33. If‘ any part of any provision of this Agreement or any other agreement, document, or writing given pursuant to or in connection with this Agreement is finally determined to be invalid or unenforceable under applicable law, that part or provision shall be ineffective to the City Attorney Approved Version #06.17.03 8 extent of such invalidity only, and the remaining terms and condition shall be interpreted so as to give the greatest effect to them. 34. The tenns and conditions of this Agreement shall bind and inure to the benefit of Licensor and Licensee and, except as otherwise provided in this Agreement, their respective heirs, distributees, executors, administrators, successors, and assigns. 35. The terms and conditions contained in this Agreement supersede all prior oral or written understandings between the parties concerning the subject matter of this Agreement. Notwithstanding this, nothing in this Agreement is intended to alter or abrogate actions taken or conditions imposed by Licensor in its capacity as regulatory authority. 35. This Agreement shall not be modified or amended except by a writing signed by authorized representatives of the parties. IN WITNESS WHEREOF, Licensee and Licensor have executed this Agreement effective the day and year first written above. LICENSEE *By: SPRINT PCS Assets, L.L.C., a Delaware limited liability compgny I ..- , er2 WW NCED Dirrctor, Site Development (print namdtitle) **By: (sign here) LICENSOR CITY OF CARLSBAD, a municipal comration By: Mtysq CityManageredeB&U Mtysq CityManageredeB&U ATTEST: City Clerk (print namdtitle) If required by Licensor, proper notarial acknowledgment of execution by Licensee must be attached. Ifa Comoration, Agreement must be signed by one corporate officer from each of the following two groups. *Croup A. Chairman, President, or Vice-president **Group B. secretary, Assistant Secretary, CFO or Assistant Treasurer Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation. City Attorney Approved V&on #7.16.02 9 ~~ CALIFORNIA ALL-PURPOSE ACKNOWLEDGEMENT State of 6_r,h,b/ personally appeared ersonally known to me -OR- proved to Notary PublicCalifornia SAN DIEGO COUNTY My Comm. Exp. Jan 12,2007 me on thb-dsis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that helshelthey executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. 1- Jf Signature of Notary Public Description of Attached Document Title or Type of Document: sQ&nc;pb S5f-m Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: 0 Individual 0 Corporate Officer 0 Titles(s): 0 Partner - 0 Limited Attorney-in-Fact Trustee 0 Guardian or Conservator Other: 0 General ~ ~ Signer Is Representing: Signer's Name: [7 Individual 0 Corporate Officer 0 Title(s): Partner - 0 Limited 0 General Attorney-in-Fact 0 Trustee 0 Guardian or Conservator 0 Other: Signer Is Representing: APPROVED AS TO FORM: RONALD R. BALL, City Attorney n City Attorney Apved Version #7.16.02 10 DESCRIPTION OF 'TROPERTY" All that portion of Lot "Jn of Rancho Agua Hedionda, in the City of Carlobad, County of San Diego, State of California, according to Map thereof No. 823 filed in the Office of the County Recorder of San Diego County, on November 16, 1896, being more particularly described as follows: Bcginning at the most Northeasterly corner of Carlsbad Tract No. 81-47 in said City and State, according to Map thereof No. 10565, filed in the Office of the County Recorder of San Diego County, on Januar: 17, 1983; thence South 69*28'42Iq West, 754.99 feet (record 754.89 feet per Map No. 105691, along the Northerly subdivision boundary of said Tract No. 81-47, to the most Northwesterly corner of said Tract No. 81-47, said point being on the center line of Glasgow Drive as dedicated to the public per Map No. 10565; thence continuing South 69O28'42" West, 30.02 feet to the Westerly line of Glasgow Drive and the True Point of Beginning; thence continuing South 69O28'42I' West, 623.26 feet to a point on the Easterly line of an easement for public roadway purposes per Document No. 85-263533 of Official Records, recorded July 24, 1985, said point being on a curve, concave Westerly and having a radius of 1042.00 feet, a radial line to said point bears South 85O33'46" East; thence Northwesterly, along said Easterly line of Tamarack Avenue, along the arc of said curve, through a central angle of 23°03'2611, 419.33 feet; thence Morth 18O37'12" West, 197.62 feet to the beginuing of a tangent curve, concave Southeasterly and having a radius of 25.00 feet; thence Northwesterly, Northerly and Northeasterly, along the arc of said cumre, through a central angle of 90°00'OO", 39.27 feet; thence along the Southerly line of an easement for public roadway purposes per Document NO. 86-075424 of Official Records, recorded February 26, 1986, North 71°22'48" East, 384.68 feet; thence leaving said Southerly line, South 18°37'1211 East, 130.00 feet; thence N0rth.71~22'48~1 East, 130.00 feet to the Westerly line of said easement for public roadway purposes per Document No. 86-075424 of Official Records, recorded February 26, 1986; thence along said Westerly line, South 18°37'12H East, 460.04 feet to the True Point of Beginning. 11 City Attomey Appmpad Version W7.16.m EX"TB CONDITIONAL USE PERMIT NO. f? Id City Attorney Approved Version #7.16.M 12 EXHLBITC DESCRIPTION OF “PREMISES” 13 City Attornqr Approved Version #7.16.02 3zy * L J 39 I