HomeMy WebLinkAboutSTC One LLC; 2010-04-06;WIRELESS TELECOMMUNICATIONS FACILITY
CITY OF CARLSBAD
RATIFICATION OF AMENDED AND RESTATED LICENSE AGREEMENT
This Ratification of Amended and Restated License Agreement ("Agreement") made
as of the latter signature date below (the "Effective Date") is made by and between the City
of Carlsbad ("Licensor"), and STC One LLC, a Delaware limited liability company,
registered in California as Tower Company One LLC, by and through Global Signal
Acquisitions III LLC, a Delaware limited liability company, its attorney in fact
("Licensee").
RECITALS
A. Licensor is the owner of real property located at the Ellery Reservoir Site
("Property") located at 2237 Janis Way, Carlsbad, California 92008, and more particularly
described in Exhibit "A".
B. Carlsbad Municipal Water District and Licensee entered into a License
Agreement dated April 6, 2010 (the "Original Agreement") whereby Licensee licensed
certain real property, together with access and utility easements, located in San Diego
County, California from Licensor, all located within the Property.
C. Licensee desires access to and limited use of a portion of the Property, as further
described below to install, maintain and operate a wireless telecommunication facility with
equipment as more particularly described in the corresponding Conditional Use Permit No.
MCUP 08-0lxl (the "Conditional Use Permit") attached to this Agreement as Exhibit "B"
and will be made a part of this Agreement.
D. Licensor is willing to permit Licensee access to and limited use of a portion of
the Property for this stated purpose and pursuant to the below terms and conditions.
E. Licensor and Licensee agree that the Original Agreement shall be amended by
deleting it in its entirety and restating the Original Agreement as provided for herein.
NOW, THEREFORE, the parties agree as follows:
GRANT OF LICENSE
1. Scope of License. (a) Licensor grants to Licensee a non-exclusive license (the
"License") to use that portion of the Property described in Exhibit "C" (the "Premises") for
the purposes of installing, maintaining, and operating the wireless telecommunication
facility with equipment described in Exhibit "B" and Exhibit "D" ("Communication
Licensee Site Name: Mt Kelly
BUN#: 880230
Equipment"), with an exclusive license for the interior of the equipment cabinet shown on
Exhibits "B" and "D", subject to Licensor's right of entry as set forth in Paragraph 28. In
addition to being subject to the terms and conditions in this Agreement, this License and
Licensee are subject to the terms and conditions of Exhibit "B" and all other required
government approvals.
(b) The Premises may be used for (i) the transm1ss10n of and reception of
communication signals provided that such frequency or frequencies are within those for
which Licensee, or any entity which controls, is controlled by or is under common control
with Licensee, is duly licensed by the Federal Communications Commission ("FCC"), and
(ii) the construction, alteration, maintenance, repair, replacement and relocation of related
antennas, equipment, cables and facility and improvements related thereto, and (iii)
activities related to any of the foregoing, provided such activities do not require an
expansion of the Premises or violate Licensee's duties of non-interference set forth herein
(collectively, "Licensee's Permitted Use").
2. Term of License. (a) This Agreement and the License granted hereunder is
contingent upon Licensee obtaining a valid corresponding Conditional Use Permit, which
Conditional Use Permit shall be attached hereto as Exhibit "B". The initial term of this
Agreement and the License granted thereunder shall commence on August 19, 2016
("Commencement Date") and shall, subject to 2(b) below, be for ten (10) years ("Initial
Term").
(b) If the Exhibit "B" Conditional Use Permit expires before the date that is ten (1 0)
years from the Commencement Date, the Initial Term shall expire on the same date as the
expiration of Exhibit "B" Conditional Use Permit. This Agreement may be extended for an
additional term not to exceed ten (1 0) years so long as Licensee applies for and obtains an
extension to the corresponding Exhibit "B" Conditional Use Permit before Exhibit "B"
Conditional Use Permit expires.
(c) If Licensee fails to obtain a valid extension to the term of Exhibit "B"
Conditional Use Permit before it expires, this Agreement and the License granted
thereunder shall be automatically terminated, and Licensee shall immediately cease its
operation and use of the Property and Premises. Licensee shall have ninety (90) days
following the expiration or earlier termination of this Agreement to return the Premises to
Licensor in the same or like conditions that existed before Licensee occupied the Property
and Premises, reasonable wear and tear and casualty damage excepted ("Return Period").
Licensee shall pay the monthly License Fee in effect for the last month of the then current
term during said ninety (90) day period.
(d) In the event that this Agreement expires pursuant to Paragraph 2(b) above, and
prior to the expiration of the Return Period, if Licensee is diligently pursuing renewal of the
Conditional Use Permit, and Licensee desires to continue operating its wireless
communication facility on the Property, Licensee shall pay Licensor an annual License Fee
Licensee Site Name: Mt Kelly
BUN#: 880230 2
an amount equal to two hundred percent (200%) of the License Fee ("Holdover Fee")
identified in Paragraph 3(a) below, including any increase that may have occurred pursuant
to Paragraph 3 below. Notwithstanding the foregoing, if Licensee applies for an extension of
the Conditional Use Permit at least one (1) year before the Conditional Use Permit expires
and is diligently pursuing renewal of the Conditional Use Permit but the Conditional Use
Permit has not been extended at the time of its expiration, Licensee shall not be required to
pay the Holdover Fee for its continued operations of its wireless communication facility on
the Property pursuant to the terms and conditions of this Agreement. For purposes of this
subsection (d) "diligently pursuing" shall mean Licensee's application for renewal of
Conditional Use Permit has been deemed complete by Licensor and no additional
submission(s) is (are) required of Licensee by Licensor for approval of the renewal of the
Conditional Use Permit.
3. License Fee. (a) Commencing on the Commencement Date, Licensee shall pay
to Licensor an annual fee (the "License Fee") of Forty-Three Thousand Five Hundred Sixty-
Four and 431100 Dollars ($43,564.43) which shall be payable in equal monthly installments
without abatement, deduction, or offset, on the first day of each month. The License Fee
will be adjusted annually on January 1 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
annual increase shall not be less than three percent (3%) or more than six percent (6%).
(b) Licensee shall also make a one-time lump sum payment to Licensor in the
amount of Five Thousand Dollars ($5,000.00) for administrative expenses required by the
Licensor, such payment to be made within forty-five (45) days following the
Commencement Date.
(c) If any monthly License Fee payment is not received by Licensor by the fifth
(5th) 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. Notwithstanding the
foregoing, Licensee shall not be in default hereunder unless any License Fee or other
payment due hereunder is not brought current within ten (1 0) days after Licensee's receipt of
notice of such late payment. If Licensee 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 wireless telecommunication facility and equipment, including,
without limitation any specially installed or ancillary equipment required by Licensee for its
wireless telecommunication facility from the Premises and Property within ten (1 0) business
days, or if such equipment is not removed within such ten (1 0) business day period,
Licensor may remove the facility and all equipment associated with Licensee's wireless
telecommunication facility itself and charge Licensee for the actual cost of removal and
storage reasonably incurred by Licensor.
(d) In addition to the License Fee defined above, the Licensor shall also receive an
additional fee for each additional user that attaches to the Antenna Tower (the "Collocation
Licensee Site Name: Mt Kelly
BUN #: 880230 3
Fee"). The Collocation Fee shall be an amount equal to fifty percent (50%) ofthe effective
License Fee. Licensee is also to pay an initial One Thousand Dollar ($1 ,000.00)
administration fee for each additional user. If the additional user's collocation agreement
expires or terminates for any reason, the Collocation Fee shall no longer be paid to Licensor.
4. Relationship of License and Exhibit B Conditional Use Permit. (a) The
granting of the License under the Agreement is contingent upon the (i) the initial granting of
the Exhibit "B" Conditional Use Permit or (ii) the subsequent granting of any extension of
Exhibit "B" Conditional Use Permit and (iii) the continuing validity of Exhibit "B"
Conditional Use Permit. This Agreement shall automatically terminate upon the expiration
or revocation of Exhibit "B" Conditional Use Permit, except as provided in Paragraph 2(c)
above. The modification or extension of Exhibit "B" Conditional Use Permit does not
obligate the Licensor to modify or extend this Agreement nor does the continuing validity of
Exhibit "B" Conditional Use Permit preclude the Licensor from exercising any rights under
this Agreement, including the right to terminate this Agreement for convenience under
Paragraph 13 below.
(b) Licensee shall have the right, at its expense to install, construct and maintain on
the Premises cellular transmission equipment (the "Antenna Facility") in compliance with
Exhibit "B" Conditional Use Permit for Licensee's Permitted Uses described in Section 1(b)
above. Licensee's equipment building ("Building") shall house and contain the equipment
described in Exhibit "D" Communications Equipment. The Antenna Facility and
Communications Equipment are sometimes hereinafter collectively referred to as "Antenna
Facility". A full sectored array shall mean (i) panel antennas together with all associated
cable, wire and other miscellaneous hardware or (ii) omnidirectional antennas together with
all associated cable, wire and other miscellaneous hardware. The Antenna Facility shall be
constructed, installed and operated within the Premises.
(c) If required by Licensor, Licensee shall install landscaping and irrigation
(collectively, "Landscaping") on the Premises in conformance with the approved site plans
as described in MCUP 08-01xl. In the event the Landscaping damages Licensee's
Communications Equipment, Licensee shall release Licensor from liability for such
damage, except to the extent such damage arises from the negligence or willful misconduct
of Licensor, its employees, agents or representatives.
5. Limitations on License. Nothing in this Agreement is intended to create an
interest or estate of any kind or extent in the Property, Premises, or Aerial Easement.
Licensee further 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.
(a) No collocation shall be permitted onto Licensee's Antenna Tower unless
collocation was first contemplated and authorized in the companion MCUP 08-01xl and
Licensee Site Name: Mt Kelly
BUN#: 880230 4
this Agreement. Notwithstanding the foregoing, Licensor hereby consents to the collocation
of Sprint and Clearwire existing on the site under the Original Agreement.
(b) Licensee may not assign, sublicense or transfer the License, in whole or in part,
to any other persons or entity, nor may Licensee allow any other person or entity to co-
locate its wireless facility on Licensee's Antenna Facility.
(c) Notwithstanding the foregoing, Licensor's approval shall not be required for the
transfer of rights and obligations under this Agreement to Licensee's parent, a subsidiary of
Licensee's parent or an affiliate of Licensee that is wholly owned and controlled by Licensee
or Licensee's parent, provided Licensee gives Licensor written notice of such action at least
thirty (30) days prior to any such transfer. "Control" means the right and power to direct
substantially all of the management and policies of the affiliate. Failure to provide written
notice prior to transfer is grounds for immediate revocation or termination of the License by
Licensor.
6. No Warranty. Except as otherwise expressly set forth herein, Licensor makes
no warranty or representation that the Premises are suitable for Licensee's use. Except as
otherwise expressly set forth herein, 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
7. Licensee shall use the Premises solely for the purposes allowed within the scope
ofthe License. All Licensee improvements shall be at the Licensee's expense. Licensor will
maintain the Premises in a reasonable condition.
8. (a) Licensee shall operate its Antenna Facility in a manner that will not cause
unmitigated interference with the use or enjoyment of the Property by Licensor and other
lessees or licensees in and/or on the Property as of the Commencement Date of the Original
Agreement including, if applicable, but not limited to, the HV AC systems, roof,
electronically controlled elevator system, computers, telephone systems, or any other system
serving the Property and/or its occupants. Licensor hereby acknowledges that Licensee's
use of the Premises for Licensee's Permitted Use shall not constitute an impermissible
interference.
(b) All operations of Licensee shall be lawful and in compliance with all applicable
Governmental Requirements (as hereafter defined), rules and regulations including, but not
limited to those of the FCC and the Federal Aviation Administration ("FAA'").
"Governmental Requirements" shall mean all requirements under any federal, state or local
statutes, rules, regulations, ordinances, or other requirements of any duly constituted public
authority having jurisdiction over the Property (including, without limitation, the Premises).
Licensee Site Name: Mt Kelly
BUN #: 880230 5
(c) Licensee shall indemnify Licensor and hold it harmless from all expenses, costs,
damages, loss, claims or other expenses and liabilities arising from any unmitigated
interference caused by Licensee's failure to comply with FCC or FAA rules and regulations
that is not curtailed within thirty (30) days after Licensee receives written notice of such
interference from Licensor. Licensee shall be responsible for all costs associated with any
tests deemed necessary to resolve any and all interference as set forth in this License. If
such interference caused by Licensee's failure to comply with FCC or FAA rules and
regulations has not been corrected within thirty (30) days after Licensee receives notice
thereof from Licensor, Licensor may require Licensee to remove the specific items from the
Antenna Facility causing such interference until such interference ceases.
(d) In the event that Licensee commences using the Premises in a manner as to
which Licensee is not presently licensed by the FCC but with respect to which Licensee
hereafter obtains necessary FCC licensure, Licensee's right to conduct such particular use
shall be subordinate to the use of the Property by Licensor and other licensees or occupants
thereof existing on or before the date on which Licensee commences such use. Licensor
shall be under no obligation to exercise the duties concerning interference described in
Paragraph 29(b) below with respect to a future use of the Premises by Licensee as described
in this Paragraph 8( d).
9. Licensee is fully responsible for Licensee's Antenna Facility installed on the
Premises by Licensee, including providing fire, theft, and extended coverage insurance.
10. Licensee is required to 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, as amended from time to time.
11. (a) Licensee is required to secure all necessary permits or conditional use
permits from any governmental agency to install Licensee's Antenna Facility on the
Premises. Licensee may substitute, modify and/or add to its Antenna Facility located on the
Premises from time to time, provided that Licensee first obtains any and all required
governmental approvals for such substitution, modification and/or addition and the written
approval of Licensor, which approval shall not be unreasonably denied, delayed or
conditioned. Notwithstanding the foregoing, Licensee shall be entitled to perform without
Licensor's consent, equipment repairs or replacements with equipment of a "like kind" or
substantially similar in nature. 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. If Licensee's plans and specifications are approved by Licensor, Licensee shall
notify all other telecommunications and information services providers located on the
Property per Paragraph 29 below (hereinafter "Carrier"), in writing, as to the scheduled date
and time of commencement of construction or installation of Licensee's modified equipment
Licensee Site Name: Mt Kelly
BUN#: 880230 6
not less than five (5) business days prior to such date. Any unauthorized modification to
Licensee's Antenna Facility shall be deemed a breach of this Agreement and Licensor shall
give Licensee written notice of such breach. After receipt of such written notice, Licensee
shall have twenty-five (25) days in which to commence to cure the breach, provided
Licensor may extend such cure period if, in Licensor's sole discretion, it determines that the
nature of the cure is such that it reasonably requires more than twenty-five (25) days.
Licensor may not maintain any action or effect any remedies for default against Licensee
unless and until Licensee has failed to commence to cure the breach within the time periods
provided in this Paragraph.
(b) Licensee is required to maintain Exhibit "B" Conditional Use Permit and all of
the certificates, permits and other approvals, which may be required from other federal, state
or local authorities, and any temporary easements or other rights of entry, which are
required from any third parties. Licensor shall cooperate with Licensee in its efforts to
obtain such approvals and/or temporary easements or rights of entry, as may be required for
Licensee's Antenna Facility as approved in Exhibit "B" Conditional Use Permit. If (i) any
application and/or negotiations by Licensee for any required certificate, permit, license,
temporary easement, right of entry, approval, policy of title insurance, or agreement is
finally denied, rejected and/or terminated, (ii) any such certificate, permit, license,
temporary easement, right of entry, approval or agreement is canceled, or expires, or lapses
or is otherwise withdrawn or terminated, (iii) any Hazardous Materials (as defined in
Paragraph 18 below) are discovered or otherwise become located on the Property or the
Premises, other than as a direct result of Licensee's activities, or (iv) due to technological
changes or business 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 Agreement, which termination shall be effective no sooner than one hundred eighty
(180) days from delivery of written notice from Licensee to Licensor, provided Licensee
has removed all of its personal property, fixtures, electrical meters, and equipment from
the Premises and Property by that time.
12. Licensee is 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 the 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) Licensee shall, at Licensee's sole expense and within one hundred eighty
( 180) days after Licensee's receipt of written notice ("Notice Period") from Licensor to
protect, temporarily disconnect, relocate, modify or remove (collectively, "Relocate") its
Antenna Facility, Communication Equipment, Building, and/or other property if Licensor
determines, in its sole discretion, that Licensee's Antenna Facility, Communication
Equipment, Building, and/or other property are inconsistent with or interfere with
Licensor's current or planned use of the Property or Premises; provided, however that if
Licensor requests Licensee to Relocate prior to the expiration of the seventh (ih) year of the
Licensee Site Name: Mt Kelly
BUN#: 880230 7
Initial Term of this License Agreement, Licensor shall pay seventy-five percent (75%) of
Licensee's reasonable costs and expenses related to such relocation. Notwithstanding
the foregoing, Licensee shall not be required to Relocate until such time that Licensee
obtains all requisite governmental approvals and permits (collectively, "Approvals") related
to such relocation; provided however that if the timeframe to obtain such Approvals exceeds
the Notice Period, Licensee shall be entitled to install a cell site on wheels ("COW") on the
Property for up to six ( 6) months, while it continues to seek the Approvals. In the event the
Approvals are not obtained within such six (6) month period despite Licensee's diligent
efforts, Licensor, in its reasonable discretion, may extend the period of time during which
the COW may remain on the Property. Further, in consideration for Licensor's consent to
enter into this Agreement, 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 further commercially reasonable documentation of
this release and waiver mutually acceptable to Licensor and Licensee as Licensor may
reasonably require in the future.
(b) If Licensee does not Relocate its Antenna Facility, Communication Equipment,
Building, and/or other property within the time period specified above, Licensor may
remove the Antenna Facility, Communication Equipment, Building, and property and
charge Licensee for the actual cost of removal and storage. Alternatively, upon Licensee's
request, Licensor may approve the abandonment of Licensee's Antenna Facility,
Communication Equipment, Building, or personal property in place. Upon approval,
Licensee shall execute, acknowledge and deliver to Licensor any necessary documents to
transfer ownership of its Antenna Facility, Communication Equipment, Building, and
personal property to Licensor in "as is, where is" condition, and without warranty of any
kind.
(c) In the event that Licensor determines in its sole discretion that it is no longer
practical to allow Licensee to use the Premises for Licensee's intended purposes, then
Licensor shall have the right to terminate this Agreement, which termination shall be
effective no sooner than one (1) year from delivery of written notice from Licensor to
Licensee. If Licensor requests Licensee to remove its Antenna Facility, Communication
Equipment, Building, and/or other property within the time period specified in the written
notice and the request for removal is made prior to the expiration of the seventh (ih) year of
the Initial Term of this License Agreement, Licensor shall pay seventy-five percent (75%)
of Licensee's reasonable costs and expenses related to such removal of its Antenna
Facility, Communication Equipment, Building and/or other property at the Premises.
Notwithstanding the foregoing, Licensor may allow Licensee to install a cell site on wheels
("COW") on the Property for up to one (1) year, while it seeks to obtain another location to
site its facilities. In the event that Licensee is unable to obtain, within such one (1) year
period, despite Licensee's diligent efforts, Licensor may, in its sole discretion, extend the
period of time during which the COW may remain on the Property. Further, in
consideration for Licensor's consent to enter into this Agreement, Licensee waives any and
Licensee Site Name: Mt Kelly
BUN#: 880230 8
all rights it may have under federal or state law for relocation assistance benefits, if any, if
Licensor requires Licensee to remove 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 further
commercially reasonable documentation of this release and waiver mutually acceptable to
Licensor and Licensee as Licensor may reasonably require in the future.
14. Intentionally Omitted.
15. Licensee shall 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 provided the same does not conflict with the terms and conditions of
this Agreement and notice of same is given to Licensee.
16. (a) Licensee shall waive all claims against Licensor for any damages to the
personal property and Antenna Facility 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 from any cause arising at any time, except any damages arising from
the negligence or willful misconduct of Licensor or its agents, employees or contractors. In
addition, except to the extent of the negligence or willful misconduct of Licensor or its
agents, employees or contractors, Licensee will indemnify, defend, and hold Licensor,
including all of its elected and appointed officials, officers, employees, contractors and
agents ("Indemnified Parties"), exempt and harmless from any damage or injury to any
person, or any property, to the extent arising from the use of the Property or Premises by
Licensee or Licensee's officers, employees, contractors, or agents, or from the failure of
Licensee to keep the Antenna Facility in good condition and repair, reasonable wear and
tear excepted, as provided for in this Agreement.
(b) Neither party shall be liable to the other, or any of their respective agents,
representatives or employees for any lost revenue, lost profits, loss of technology, rights or
services, incidental, punitive, indirect, special or consequential damages, loss of data, or
interruption or loss of use of service, even if advised of the possibility of such damages,
whether under theory of contract, tort (including negligence), strict liability or otherwise.
(c) Licensee's indemnification shall include any and all costs, expenses, reasonable
attorneys' fees and liability incurred by the Indemnified Parties in defending against such
claims, whether the same proceed to judgment or not.
17. (a) Licensee shall obtain and maintain for the duration of the Agreement and
any and all amendments, insurance against claims for injuries to persons or damage 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 from an insurance carrier admitted and authorized to do business in the State of
Licensee Site Name: Mt Kelly
BUN #: 880230 9
California. The insurance carrier is required to have a current Best's Key Rating of not less
than "A-:VII".
(b) Licensee shall maintain the types of insurance coverage and minimum limits
indicated below, unless the Risk Manager for the City of Carlsbad 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 elected officials
or Board of Directors, 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, Licensee will obtain such additional insurance coverage, as Licensee deems
adequate, at Licensee's sole expense.
1) Commercial General Liability. $2,000,000 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. $2,000,000 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.
(c) Licensee will ensure that the policies of insurance required under this
Agreement contain, or are endorsed to contain, the following provisions:
1) Licensor and the City of Carlsbad will be named as additional insured on
the Commercial General Liability Policy.
2) Licensee will obtain occurrence coverage that must be maintained for
the duration of the Agreement.
3) This insurance will be in force during the life of the Agreement and any
extensions of it and will not be canceled by Licensee without thirty (30) day's prior
written notice to Licensor and the City of Carlsbad in accordance with Paragraph 32
below.
(d) Upon Licensor's execution of this Agreement and annually upon policy
renewals thereafter, Licensee will furnish certificates of insurance to Licensor and City of
Carlsbad.
Licensee Site Name: Mt Kelly
BUN #: 880230 10
(e) If Licensee fails to maintain any or all of the required insurance and in the
amount specified, Licensor may immediately terminate this Agreement.
(f) Licensee shall provide Licensor copies of any endorsements and certificates of
insurance required by the Agreement.
(g) Licensee may self-insure any of the required insurance under the same terms
and conditions as outlined herein and will provide Licensor notice of intent to self-insure
along with a Certificate of Self-Insurance outlining the required coverage.
(h) The limits required by this agreement may be met by a combination of primary
and excess or umbrella policies.
18. Licensor and Licensee shall each refrain 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 or regulation. In
the event of a breach of this provision by either party, the other may terminate this
Agreement upon thirty (30) days written notice to the other (unless such breach is cured
within such thirty (30) day period) and pursue any remedies to which it is entitled by law.
19. If necessary Licensee will install at its own cost:
(a) a separate electrical panel and meter for its Antenna Facility and
equipment and be responsible for all electrical costs attributable thereto.
(b) a separate water meter for any landscaping required by Exhibit "B"
Conditional Use Permit or other federal, state, or local approval and be responsible
for all water and maintenance costs attributable to this requirement.
20. Licensee shall provide Licensor with "as-built" drawings for the Antenna
Facility within sixty (60) days after the Antenna Facility is installed.
21. Licensee shall 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.
22. Licensee shall 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 Antenna Facility. Without limiting any other available
remedies, if Licensee fails to commence repairing or refinishing such damage within thirty
(30) days after receipt of Licensor's notice, Licensor may, in its sole discretion, but without
Licensee Site Name: Mt Kelly
BUN#: 880230 I I
any obligation to do so, repair or refinish the damage and Licensee shall reimburse Licensor
all actual costs and expenses reasonably incurred in the repair or refinishing.
23. Licensee shall ensure that the Premises are maintained in a clean, safe condition
and that Licensee's Antenna Facility is in good repair and free of any defects.
LICENSOR'S OBLIGATIONS
Licensor will:
24. Allow the construction installation, operation, and maintenance of Licensee's
Antenna Facility on the Property and Premises for use by Licensee, as approved in Exhibit
"B" Conditional Use Permit.
25. Allow reasonable ingress and egress for Licensee to the Property twenty-four
(24) hours per day, seven (7) days per week (a) for maintenance purposes, and Licensee
shall provide Licensor with at least four ( 4) hours prior notice before access for such
maintenance purposes; and (b) in the event of an emergency, where "emergency" shall be
defined as an imminent threat of bodily injury, bodily harm or property damage where
immediate access is required, or cases of equipment or antenna failure.
26. Be responsible for its own equipment.
27. Grant any necessary temporary right of entry for as long as this License is in
effect for electrical and telephone service to the Premises.
28. 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 for such entry requirements, "emergency" shall be defined as an imminent threat of
bodily harm, bodily injury or property damage where immediate entry is required. Licensor
shall provide written notice to Licensee of such entry immediately after making entry in
such circumstances. Under emergency circumstances, Licensor may access Licensee's
equipment cabinets located on the Premises; provided however that Licensor shall first
complete and submit to Licensee the "Cell Site Hard/Soft Key Access Request Form"
attached hereto as Exhibit "E". Licensor shall use its best efforts to first contact Licensee
and give Licensee a reasonable amount of time under the circumstances to be present while
Licensor accesses such equipment cabinets.
29. Subject to Paragraph 29 (a) and (b) below and Licensee's other rights under this
Agreement, Licensor reserves the right to enter into agreements with other parties,
including, but not limited to additional Carriers for use of the Property. In the event that an
additional Carrier is licensed to use the Property, it shall be such Carrier's responsibility, at
Licensee Site Name: Mt Kelly
BUN#: 880230 12
its expense to ensure that such installation is constructed and operated in accordance with
applicable FCC regulations. If Licensor approves such 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 the Carrier's facility and equipment not
less than five (5) business days prior to such date. The Carrier's facility, equipment and
location, and any change to the additional Carrier's approved facility, equipment and
location shall be made compatible with Licensee's facility and equipment at Carrier's sole
expense. Except as otherwise required or permitted by applicable law, disputes between the
Licensee and the other Carriers over the use of the Property shall be submitted to Licensor's
City Manager or an authorized designee for final resolution.
(a) Licensor shall not permit third party lessees, licensees, or agents to obtain rights
to the Property, after the Effective Date of the Original Agreement, to use any portion of the
Property in any way which interferes with the operations of Licensee. Without limiting the
generality of the foregoing, Licensor hereby acknowledges that in the event of any
interference with Licensee's Permitted Use as a result of the transmission or reception (or
both) of radio, microwave or other telecommunications signals by a future third party lessee,
licensee or occupant of the Property, Licensee's rights hereunder to conduct Licensee's
Permitted Use shall be and remain superior to the rights of any such third party future
lessee, licensee or occupant, subject, however, to the provisions of Paragraph 8(d) above.
Licensor further acknowledges that interference with Licensee's operations from future third
party lessees, licensees, or occupants may cause Licensee to suffer irreparable injury and
entitle Licensee, in addition to exercising any other rights hereunder or under applicable
law, to seek the immediate enjoinment of such interference against the interfering third
party.
(b) Subject to the provisions of Paragraph 29( a) above, Licensor reserves the right
to license other portions of the Property to other third parties during the term of this
Agreement and License. Accordingly, Licensor agrees that any other third person or entity
who may install equipment subsequent to the Effective Date in and/or on the Property will
be permitted to install only such communications equipment that is of the type and
frequency that will not cause any interference to Licensee or persons or entities claiming
through or under Licensee. In the event any such third person or entity's equipment causes
such interference, Licensor will cause the interfering third party to take all steps necessary
to correct and eliminate the interference or such interfering third party will be required to
cease operations until such interference is removed. To the extent that Licensee's operations
are not within the parameters of its FCC license, this protection from co-located interference
will not be applicable, but it shall be applicable with respect to those operations, or portions
thereof, falling within the FCC license parameters. Notwithstanding the foregoing,
Licensee's right to be free from interference and Licensor's duties concerning the prevention
and/or correction of interference shall be subject to Paragraph 8( d) above.
Licensee Site Name: Mt Kelly
BUN#: 880230 13
GENERAL PROVISIONS
30. Any breach of Licensee's obligations under this Agreement, other than the
failure to pay applicable fees when due hereunder, which breach is not cured within thirty
(30) days of notice to Licensee of such breach, is grounds for revocation or termination of
this License by Licensor.
31. 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 oflaw providing for a change of venue in these proceedings to any other county.
32. All notices under this 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 received or refused when delivered as provided herein 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:
Global Signal Acquisitions III LLC
c/o Crown Castle USA Inc.
Attn: Legal Dept.
2000 Corporate Drive
Canonsburg, PA 15317
(Site: Mt. Kelly 880230)
LICENSOR:
City of Carlsbad
1200 Carlsbad Village Dr.
Carlsbad, CA 92008
Attn: Curtis Jackson
Title: Real Estate Manager
33. The waiver by Licensor or Licensee of any breach of any term, covenant, or
condition in this Agreement shall not be deemed to be a waiver of such term, covenant, or
condition for any subsequent breach of the same or any other term, covenant, or condition of
this Agreement.
34. If any part of any provlSlon 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 extent of such invalidity only, and the remaining terms and condition
shall be interpreted so as to give the greatest effect to them.
35. The terms 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, distributes, executors, administrators, successors, and assigns.
Licensee Site Name: Mt Kelly
BUN#: 880230 14
36. 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.
3 7. This Agreement shall not be modified or amended except by a writing signed by
authorized representatives of the parties.
38. The above recitals are incorporated into this Agreement
39. All identified or referred to Exhibits are incorporated into this Agreement by
this reference.
40. Deletion of Original Agreement. Licensor and Licensee agree that effective as
of Effective Date of this Agreement, the Original Agreement is hereby amended by deleting
it in its entirety and restating the Original Agreement as provided for in this Agreement.
Licensee Site Name: Mt Kelly
BUN#: 880230
[Signatures appear on next page]
15
IN WITNESS WHEREOF, Licensee and Licensor have executed this Agreement
effective the day and year first written below
LICENSEE:
STC ONE LLC,
a Delaware limited liability company,
registered in California as Tower
Company One LLC
company
R.Christopher Mooney
Vice President
Title: ------------, .. :.liiJ
Title:
Date: ===~=~=~==i=z=.:.._~ ....... 6======== I I
LICENSOR:
City of Carlsbad
ATTEST(
CityClerk\ LAD. i!7!l1Jf~
Date: /,;z),;J.o!Llp
If required by Licensor, proper notarial acknowledgment of execution by Licensee must be
attached. If a Corporation, Agreement must be signed by one corporate officer from each of
the following two groups.
*Group A
Chairman,
President, or
Vice-President
**Group B
Secretary, Director, Manager
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.
APPROVED AS TO FORM: CELIA BREWER, City Attorney
By:
AssistB:HfJ1Deputy City Attorney
Licensee Site Name: Mt Kelly
BUN#: 880230 16
EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
ALL OF THAT PORTION OF LOT "J" OF RANCHO AGUA HEDIONDA, IN THE CITY OF
CARLSBAD, 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, NOVEMBER 16, 1896, DESCRIBED AS FOLLOWS:
BEGINNING AT THE MOST NORTHERLY CORNER OF LOT 17 OF OCEAN
VIEW ESTATES AS SHOWN ON MAP THEREOF NO. 5825, FILED IN THE OFFICE OF
THE COUNTY RECORDER OF SAN DIEGO COUNTY, JANUARY 25, 1967;
THENCE NORTH 58° 59' 34" EAST, A DISTANCE OF 242.89 FEET TO THE TRUE
POINT OF BEGINNING OF THE PORTION TO BE DESCRIBED;
THENCE FROM SAID TRUE POINT OF BEGINNING SOUTH 23° 20' 06" EAST, A
DISTANCE OF 200.00 FEET;
THENCE SOUTH 65° 20' 06" EAST, A DISTANCE OF 103.00 FEET;
THENCE NORTH 66° 39' 54" EAST, A DISTANCE OF 115.00 FEET;
THENCE NORTH 33° 41' 38" EAST, A DISTANCE OF 62.67 FEET;
THENCE NORTH 10° 32' 29" WEST, A DISTANCE OF 139.44 FEET;
THENCE NORTH 69° 20' 06" WEST, A DISTANCE OF 180.00 FEET;
THENCE SOUTH 58° 59' 34" WEST, A DISTANCE OF 139.14 FEET TO THE TRUE
POINT OF BEGINNING.
AS SHOWN FOR CONVENIENCE SAKE ON ATTACHMENT "A" ATTACHED
HERETO AND MADE A PART HEREOF. (16-A)
Licensee Site Name: Mt Kelly
BUN#: 880230 17
, ..
' , • ,
t ••
II
Licensee Site Name: Mt Kelly
BUN#: 880230
J._.
'-~·
EXHIBIT A
~"'I
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-. ';. .!~ . ' ""' ... ," "'·
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18
.,. !
tJcii'#~N$
C'I'StJc~
2: •O
' (.. ..
"" N ;;»
Licensee Site Name: Mt Kelly
BUN#: 880230
EXHIBITB
CONDITIONAL USE PERMIT
(See Attached MCUP-08-0lxl)
19
Jon Dohm
Crown \.astie l'lmt~atiOflal
s:e 107
u1 but camll<l ~m•t
~~!.) Solrtma, CA 9UOI
(Citvof
Caflsliad
Ulf!CT: MQJP H;OJ!!) • rg U! Mm!M! m!I-~IlK! to illklw the corll!n.-lcptratloll alld
matlllf'~f! of a ~-~ rolntnllntC.tlbf! f<~,tJilt\' ~.!!I'd i!l 2?~7 Jafli~ Wl'f, In tl•to II-A·10.000
Ut!"''ld~al ~gritultllll'!f ZOM and ltx111 Ftdfi!ie M1~mttn! 2ooll t
The Cltr f'lcnner ~ ~eted 11 rMew of your epplicatlon for a Mii'IOI Condllbnalll$1! f'eanit MCUP
OEH»x~ for the t011ti!lUtd ooemion of I wirtle» a>mmllnic41iorl f«illty ~ttd It 2237 1Mi1 Way A
nQtiee wts sent to JitOJ>ti'TY owners wi!llin a 300' red'M of 1M Nbjcc:t I)IOptrly reqwstlnt comments
regartJrc the 1bcm l'e(llK!St. ~b were rece!Vtd within the ten !fly ootia: period (todinc on .Ill..,
18, ~016la!lli a re~st tor an Anl'li~ll'llbve Hczri~~C ~~m filec. On tl.lly 27. 2Clli. the City n.nner held
a~ Admln.t1.1r.ltM Heannc to COf!Siclet said reMa PWiic testimony wa ld~. Met careful
<~~~~of the evmee prem~ted at tile Admims111twe Hearr.,g, the atv Planner has Cletermmed
tllat the to\lr ftlldlf18$ Jeillllred tcr gran~ a M!norConclit,onal u~ PM'ml1 can be fl'll!de and tltm!fo11,
APP!tOVB el!lf re<)\10~ ba$0\i or! UIO lolowll'l& flnltnp 1M eonditlor4
That tilt' rfQIJMlfd IlLII " l"lfCtttSI/'V or oorabtt fOI tilt dwtklpmtnt ot tile comm!.l!lty, and IS In
harmoov with ttw vJtloo\ ~u ilf!d objl!aM>s of the sener11 plln, mlud~~&lf appliCable, lhe
c~:<llfled klul roi~Sti!IJXlVl!'ll. Spi!t1llc J8n or masttr plan In lMt thluulc COMIIail' wl1tl tM
e-ta! Pliw! In thilt the lt-4 Rltsldentlall.llnlf Ike ~on doll$ l'liOt .,....,... U.. proWion fll
wna. Commutt!Q11on Pt<l~ {WCP)-. The wa Is l«:lltM on a public llllllty II'ISI:allatlon 1t1 a
~,ldtmlal mM (Eller, RaerYDitl wflldl h not publidy aam11btt 1M thllrl!foq Is a Jftftl'f..t
locltloo JIUI'SIIIIrt ll:l aty O:lulldl JIQky No. 14. ~ ComnurniUtlon F1dldts. The profe'ct's
locltloo and mlih fut palm tm flesicn also enable the ptOjee!ll:l ~ wth: thl Gtemnl Plan
obfeetiws that_. to !Uifttaillend enbla c.mtw.rs llllltlrMCe.
:l. lbtt the retlt~~:~d use 1$ not detrimental to cxlstlnt WitS or touRs ~ly wmitted ;n the mt~t
In wtuclllht p~ we Is kl be ~ in tim: h uiltinc wa wll not mult in any lldcldoMI
bulldl!w CIOYttaP and tllln Wil uno ~tothee.xlsli• fit~.
~. ihat "'' sb ror the prOfX!Md eond!tiolllf uce IS adeq\Jite in s~M and s!\3po 1Cl a«oMIIIOCII!te tile
Yii!Js, setb~li:s. wails, l'ei!CK, putln& loldlftS ~ buHtr 1rex. l~!'laK:ap.lr!S and otht'r
(ommul'lity&E~:ooomk ~v~t
li'bMIIIO Ollll«ttn lllhlWMlt """'1141~ Dl +tiD·fll4 r~~ l i'!'l;<!!flt4'm!HI ~~<...,thiW:~ ~
Licensee Site Name: Mt Kelly
BUN#: 880230 20
MCIJP OS Oll€1-PC$1SO MOUNT KEllY
Septembtt 12, 201G
~Mi~~~@
dev.-loptN~nt ft.~ttn> prtsoi.l43d in lhi$ eo® and rtquirt!d by thll City Pl.ann~r in ordtr to intt&ratt
the list wid! other l»t$ In the ntlghborhood ln ttlat the wa ., e>Utlllfl and 1'1() rnodlfkriom 1ft
beln& propoHd. The odlfn•l•pPRMI or the use -•••ted on
4. 1 hal thE Stftl!'t systtm strvi!l! t!\t' ptOI)Osed UU !$~·to ptOptrty tla!'ldlfQ all traftic 8tlltl'attd
by t~ pfOPO$td ust tn tMt die \.~~fUnned WCF e.ce woulcl rtq1tlre, on :Mir.J811 only molthty
malatenance "'sit$ and occdoltlvblts In respome to opmtlontl problems.
s. That thE prooost>d WCJ isOJI'Kistf'ntwlrllOtvCcltn:iiPolicy No. 64 in thath lsloc31H lnanKidlntl:al
zone on the siW of a I'IOI'l-publidy acctaibll puNt utfty imtlll:ttion OMIOd by tho CarlsM4
Munidpol Water District (Ellery Rosei'IICikJ, which tile Polley We:ntHies at a ,.md loeatioa for
WCfs. Also, 1hc ptulenteni'8J are loaUd within 1 ft&l)( ptlm tree and the equipment boltes wt
s.atttned by pultk vetw by a stope am:t lald!lalplfll, both ofwhkh CDnlplr wllh the Pollcy'sdutp
IUldellnel for sttalth dulp. Ft.lf't'tltri'IO, tM projfld ... bHn condltielned to comply witt\ tM
~ulttrntnt to ruintain «~mpli~ with FCC IF bposun GuldtliftH.
6. ~t lht City Planner ht) d~ttrmmed t!Nt the pro.iet.t beklnr> to • tm$ of J~VietU thtt the SUite
~cretarv tor P.esa.ntS has found ib ROt have a sttnltleant :mpan 011 thP erMI'OI'II'Dtnt. and r IS
tll.trtfott eat~ly txtmM from tht rtqUirtment tor tht pteparatiOft of envlrcnmtntll
doeume!'lts pursuant to Section 1$301-EXISTING FMI.ll'V, of tlht state CEO.A GUdelt~es, In malOne
thi~ det~rrninMion, lbe: City Plann~r ht~ found thtt the tx«::ptiom li:$ttd in ~tion 153002 of the
state CEQA Guidelines do rot aPJ)Iy to !Ills proj~t
7. The Planninc Commls.'ion hx rwlc:!Ytod t.kil of tho O*tions itnpoS<!d on tbt Dcvelopercontaintd in
this ~$0lution, and hereby fincb, ln this mse, that the e)llctlons are Imposed to mitigate impacts
taused by o.r reasooably rdated tQ die proje\,1, il11 dw.! exWtlt aad ~ Oeilet or the eXlll::llon ~ !It
rcolllfl proJX)nlona~ m thE lmpr. caused bJ thE projtet
1. Approval Is era!lltd fer MClJP ti-Olll as shown on Exhblts "A"'-"D" diti!Cl Se~ 12,201600
ble m the Plllming Oivi$l0n .w:1 mcorporatftl htrt+n by rtftttntt. ~nt shill occur
sullstantialiy at $hown ~ otlttrwist notttl in tfleso <.Ordtions.
2. If anv of the followin& wnditbns fd to occ;ur, or If they ae. 11v lhek' letnts, to bf lrm>lemtnled iOO
ma~ntalnt«l ~>Ytr Ume, lf any of sll(h toldtlols fall to bf $0 Implemented and mamwned acrotdlne
10 t~r t•rms. tbt Oty shall haw tilt risJ'It to ri'/Okt Of mcdfy allapprcwals bettin 81fttd; dtny or
further condition issuante of all future buildlnc permits; deny, revoke, 01 fut1her condi!ion all
eertifb1ts of O«uppi''C'{ iS~ued under the IIUthority of ·~ ~ncremd; record a noll« of
vbiatiOfl on the PI'OIIelt'¥ tile: lnsd.ute and prosecute l1lptl:)n to compel their comP'QPa'! WlttlsalO
tolldltlon$ or SHk damapc fl:lr thtlr vio~. ltio wned riahts art galntd by Otvtloptr or ;
tl.l«tfwr in interest by the City's approqt of this: Minor Q)ncltiOJSal UH hrmlt.
3. Steff is •utOOrized and <ln:tted to me, or rtQuire the Ofveloper to matt, •• mrn:ttte ~d
IOOdifkatiOJIS m the MCUP O&oOW ~ • net:eSAI'Y to ""'*them lmtlmaltv ~~nt n
m mnfonnity ~ tilt final action on ltlt pi'Cjtrt O.WopNnt sNII occur substantially" shown on
the approved bhlb!U. My proJ)<>ttd dtvtloprHn\ dfftnnt m tl\is approwl shal require M
amendment to this ~L
Licensee Site Name: Mt Kelly
BUN#: 880230 21
MCIJPOt..Qlxl -P(S 150 IAOUfff l(fU'V
St:!ptember 12. 2016
~. Tte Developer/Operators hi~ and does nereb{arree to ~rnllttv. orotPI'1, ~t~n<l aft(! Midharmt!s~
tnt lrty of t:an~d. It~ Ct>!lll<'ellr'l4!!mNns, oftctrs, ~OVtli's, agents, a no rt,:·no~ntativti, from and
asainst any and al :iablitits, knses, dafN~tS, Ct'tlllnds, dahm and C0$1:S, ir~dudirc court COSt$ and
attome(sfe~l ii'OJ!red by the City orbin&directfyorindite<tly, from (a)Cw/$ approval and issuance
oft Ills Minor Comlltlona! uw Perrmt ttl) Oty'sapprovat or lss~t of any permit or actiOn whether
dl~~lonary or non-dlsaftlonary, ill ronMC'OOrl wittl th! use contemplated hl!ttll"', aN'I (tl
Dtwiopc~r/OJ»~W'' intlabtion and opqration of the fadlit)· pc~rmtted hfreby,. indudins without
hmitation, lr!llnd aM tmb11itles oris,ns 1rom the e!riss&on by the f«ility ofclectrorr,..netic fields or
other erte'lV wtves or em iss~
'l liP Develo!)!l'r shal co~ with all applicabiP ~n'lisJOm at tedernt, s:tatE>, aoo local orchr\ances: tn
efiect at th. time of bv~dins permit imsance.
(). Titb p•oject $hall cClmply with all conditions •Uld mitlr.atlon measure~ wt•lch art req"lrtc1 i$ part of
t.ht 7one 1 lOUI Fadfltitr> r.41tlitlement Plar and an; amendmellt.S made l£l ttlat 1!1an pnor r.o th!
IUlJai'IC& of bUIIdlf'l8 Jll'ml it~
7. MCUP08-0b:1 shtll be rt\·~wtd by the Oty Planner ott • y1:arly b.:ti> to detc:m'line if alt Q:Jnditionl of
thl) perml! have beer1 met and that th! us.t> ~ not htvt' a substantial neeatm et'fect on s.urmur1d~
ptoptrtit!s or ;he public ~ann, saftoty and aenera! "Neifare. If~ Clty PlaMef dP.tlrmlnts that 1)
tht m100r rondltlona 1 u"' pc~rmlt WM obtained by traoo or INsl'l'pl'fSGnbtion; or 2) tilt ust for which
f>Uch approval is grnnted is not being ~rti~d; or 3) the conditions of approvel have not been tnet;
or 4) tile minor conditional usc permit b bt~ or lllCtntlv has been exerd~ cootrtry to ony of the
tel ms or toodllbns or •PP'~; or 5) the use for which suct1 apf)r(MH was ~finted has ceased to exist
or has been suspendfd for OM ~ar or more; or 6) tN!I ~ I$ 1n Vk>la!OO of any ttatute, ord~•.
taw or r'ftUiatbn; or 7} the usa pc~rmttted by the mtnOr conditional ult permit i$ bt~ or has been !1:>
c:!'Xercistd as 10 bt detrir'nontal to the public healtr~ ~fety or ~rt or so as to constit~o~te 1 t\1.1~,
the City Plonner shill hold tn inbmol publk: he11rirc and after providing the penniUH the
OJlPOfiunity to bE' ~ant ltre City Plilme>r may rerott' and tl'rmlnate tte flllnoro:ll"ldltlonal ust petl!'lit
In wt1ot! (J( fn part rpafflrm the mmr rondit!MaltKe pwmit, mot~iiy the condition~ or impost ntw
conditia~.
& This ConditioMI Use Pemlit b panted For 1 period of 10 ltttn) yeats retroaalniV fro111 Aucust ~.
2016 tlm:mgh AUptt 18, 20Z6, ThiS permit may be ~ 81 arrt time aftt<or a pvbiiC tleariflt 1f 11 s
found tn;at tho us:t ha' a ~tlbstantlal dttrwn•ntal effect on S'IJI'1'0Undins land uses and thf public's
health and wtlfan!, r:K thll conditions imposed hcreill h11ve not been met. Thb permit rn.y be
eK'Iend<'.'d for a reoSOMbk period of the rrot 10 e~ 10 {tt•) ~upon written applcetlon of the
permittee maoe no Is \bill 90 c:a,s prior to the ex»~nruon date. The Planarrg CommiSSIOn MaV not
etant such ectfll510n, unitS'S It finds that tMMSI'P m SU!:Mtantial neea~ •tt.rts on ~rroundinSiand
lRM or thf pUbic's health and Wl)lfate. If I substantial flleS<ttive effect On $Uf1'0\.ll'ldjl1i! land U$0$ Of
the public's health and welflrt is found, the e>etenslon sholllm denied or panted with conditions
wi'Kh will eliminate or subltantitly reduce SU(h eife~:b. There bm knit to the nuntber of ex~
the Planninc Co11m~ion mllY crtnt.
9 ~lopi!r /Opc~Dtor shall comptr with tl'lt Fteleral Communication Comn~iPion'$8uidtlines on lmlb
tor human t~um to facio hequlillnC'f (ltF) .aectromagnetic Field$. Within si:K (61 mol'lths after the
isswnce of occup~tq, and with onv time e~mion or emendment requ~$. the Otvefo~r/Operator
Licensee Site Name: Mt Kelly
BUN#: 880230 22
MCUP Ol!·Ohl-PO l ~0 MOUNT IIHLY
Septerrber 1.2, 2016
!'!!1!04
shall soomlt to tlle Uty Planner either tl) venfa::a1Jon tllit the project is c:at~lty exc:IU<Ied from
having to rtcMerrnq comp•3ne2 wltl'l the RF el!posure guidelinto~ peor 47 CAl §1. U07Cb) (1); or (211
project i'Y'Iphunent<~~tion r•p<lrt whicll providel cumrulatiw fitld meawrements of Its: emit>~ons of a1
antenna1 inst.tlled at the subje(.t slt~. The report shal quantlfy the 1\f emil!lliom tlld compere t~
rtiiJI~ with tile ~Uft! lhnlts establtshed ~ the FCC ~lmes. Said report shall be r.ub.iel:t to
rfNtf'W and approval~!¥ th& Otv Ptan .. r to• ron~ with tM PmjeCt't pn-llm:n:~ry rf'port or RF
~l!pOSIYO submitted with tho illitial projeet application and tor COf'l!;is;lenc.y witin the FCC suide!inn.
If, on r~iew, the City finds that the l'i-oj«t doe$ not rn«t t~ rtts~lines, the City may revolce CY
modify ttl:) ton:ltlon41 use pennll.
10 Dev•loper mal rt'clftiln the tlc:llrty • to mount the J1aN11 antea11.u as d«K.e as ponible to IN! fllull
palm ttW •ml ad.tllddi1ioftal pJllm frollds to co,.,.ty witt1 the sWalth dfticn c:riWril of City Council
Poky No. 64 within ON yew from appn:~~r~l.tate.
llf.Vt>IOpil>r Shlilll submit fO U\i> City PlaMPr, .a 14' l( ~-cnpy of fM Slta Plllll and Bf!va1tonl ~Tift£
the eone!itlon~ ao,:>roved by the tin.al dtdsion m~kt!'IJ bod!r' The ccw shall be submitted to the Ctty
planner, nwiowlld and, i1 found &~ptoble, signed by the city's prc>Fct planner alld pro~ct c:J16ineer.
l2 OeveiOI'('I Shill: l('p(Jr1, In wrllll\e. 10 the City P'iilll1ef Wllhlr\ l10 diVS, MY ooarm dt~ from that
wll•dl•~ (1\!lwn Ofl tht> peorrnlt applicatiOn.
Of'\fPIOPfl'f Vial• tolllPf\! With the> City's Storrnwater lt.UI.If!Oil§. latest Vl"rs!On, and shalllmptemeot
bttt man.aaemen\ practau at ail ~s. h't trta."'a&ement practKes ill(ludt but attnot lnited to
po5uticn tre~ttment pract>a::s or devices, e•o~ co.ntm' to prevent $!It runoff durif'l8 constttlction,
gtweral t~!>c:eping ;;noctw. poll~ttlon ~>tevcntbn and ed~tlonllll proctb,, mail\~
Prcce!IU't" iVId Other m.artalllmel'!t practb!S or ~ to prevent ot rtduat rhe dlu:Nrp of
Jl(ll>\itantSc to storrnwater, rtc:e!vq wat.r or stcrrnwaler CO!Wtyanc.e syr1em to tho mallllmum extent
p!lac:ticablo. Dovek>peuhailnotify pro~e OWI'lll!l'$ and tenants of the: above requirements.
1. Appn:::v.1: of thi$ roqu.st $hall not exc~ compli~nce wilt. all appliaab!e section' of the Zoning
Ordinance and alother cpPic.tble City ordil'l6f'llCes in effe<t Dt time of b;rildlns permit isswoa:, ew:pt
u othes'wl~ $'«lfallr provided herein.
Ptam~ odtr\flflaltion (addrtruf) mall be provided ronsist•mwttl'l Carls:t»d Munictpal Cod• Stetion u.ou:w.
Licensee Site Name: Mt Kelly
BUN#: 880230 23
MCUP OS Ob 1 PCS :1$0 MOUNT <ELL Y
September U, ~OlG
~-'~?Jtt: s
NOTICE
Pie-take NOTICE !hat ilppi'OV11 of your pl'tljttt incllldes thll •i!"flposib<.lr" of fM~. dedcatlbm,
rtufi'Vetions, aotber el«!Ctions hereafter coliectlYel( referred to for ~n<:n<:>e M "'fees/e:c4c:tions."
You have 90 days from tilt dell~ of fttal ilDPrwcllto pro1est l~ltbll of theSe f~s/exactl<lns. If 'IOU
protEm them, ¥<JU must tc:mow the! prot~st procedure~ forth In ~mmllnt Cod• ~n 600lO{a), and
tk tt1• protMl and ~ otntr rtql.lirE(! mormation with tht Oty Man~t>r for prOCt$$l'l'yS in """rdence
witl1 carlsbad Munlc:tpel Code SectiOn l.J:Z.OJO. Faaure to trnely follow thet procedure wil her any
sulmi~·Quent le&.i!l «:tk>n to!llll!Ck, r~w. ~ <nide, void. or .nnultheir i:lopositltw.
You a!'l" h£>~ WR1HU! NOTIFJE:!) that your rfsht to protest til• !i>pl><:ifio>d '"sjexactiont OOES ijQT
1\PPl Y to water and ~a eonnet:Uon fees lll'ld capacity chergu, nor pllll'll'l~ ~onlng, &radlns or other
slmilcr applicot'ion prot:e~ or $Ctvic:e fees in connec:tioo with this p1Qjec:t. NOll DOCS IT APPLY t<> eny
fee~exaa<oosof lll'tlli:.ll vou have ptt"vl<>u51v bet"n g~vt>rla NOT(;E $ilflilar lo this. <~rasto whicll tilt sta>ute
of ltrrlftatiOf'IS tlas Pf1'VIOU~Iy ot~rwts~~ @!Cpln!l
nus decision mil'!' be llppealed by you or any other m<:mb<':r of the public: tc the F'lannll'lf Co!"flmisskm
nithin ten day~ of tile date of tt1ls ~Ue1. Appe~s rnust be :sthnittc:d in wtitinllO tile P111nninc Division
at 1535 farada~ !\ventre 111 Cadsb.!d. along with a J)itVment cf $673.00 J)lu~ notklnt f~s. The flq of
n1rtt appt>al wthll'l !i>UCil t•~ limit 'llal; st<ly ttw1 efflx'tlliO dat~ of tile order of tt1t Oty PlanMr until fiuch
time "'"final doti•bo ofi the appeal is reaehed. ffyou ~ lll'f qaest,ons n:!t;ardin& tbis matttr, plc:ue
feel free to «l'lbct Chrb ~li'ton Ill (160) 00:2·4624.
c Sonal lhakur, COR£ Oevd::JPrnent Servlc~s. SUite 2~. 3~SO t'i'l\1 Bird\ Sl~l!!, B~a. CA 92811
[)r)n HKI, Oty Plaftnf<t
Heath<~r Sttoud
Stevellodp
TecllS lJ:yy, PruJe~;;t !fiJI:irll:t:H
flit> Copy
Oatoahtrv
HPRM
Licensee Site Name: Mt Kelly
BUN#: 880230 24
(E) WATER lANK·
Licensee Site Name: Mt Kelly
BUN#: 880230
EXHIBIT C
DESCRIPTION OF PREMISES
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EXHIBITD
DESCRIPTION OF EQUIPMENT
6 equipment cabinets;
2 panel antennas, 1 in each of 2 sectors;
1 dipole antenna;
One Global Positioning System (GPS) oval antenna; and
Related cabling and utilities.
Licensee Site Name: Mt Kelly
BUN#: 880230 26
EXHIBIT E
CELL SITE HARD/SOFT KEY ACCESS REQUEST FORM
Licensee Site Name: Mt Kelly
BUN#: 880230
(See Attached)
27
CELL SITE ACCESS HARD/SOFT KEY REQUEST FORM
Contractor
_Vendor/Supplier
Company N arne
Company Phone #
Sub-Contractor for
PLEASE PRINT CLEARLY
Last Name: First Name:
Driver's License#: Employee ID#:
Work Phone: State:
Pager: Mobile Phone:
Alternate No.:
Reason for Access: -------------------------------------------------------------
**PLEASE READ AND SIGN BELOW**
I understand the Cell Site Hard/Soft Access Key I received are for my personal use only to supply services for
Global Signal Acquisitions lii LLC (GSA), and are NOT transferable. I further understand activity of this key
and pass code is monitored at all times and I am responsible for this activity. Should any incident, including but
not limited to damage, theft or vandalism affecting GSA, occur where this key and/or pass code is utilized for
access, I will accept full responsibility and both my employer and I shall be jointly and severally liable for any
associated losses and will compensate GSA accordingly. I UNDERSTAND AND ACCEPT THAT ANY
UNAUTHORIZED OR IMPROPER USE OF THIS KEY OR PASS CODE MAY LEAD TO MY
TERMINATION AS A SERVICE PROVIDER TO GSA.
Upon termination of my services with my contracting company or earlier if my assignment in providing services
to GSA is terminated, I will surrender this key to GSA and notify GSA of my termination so that the pass code
can be deactivated. If this key is lost or stolen or if my pass code is compromised, I will report such fact to my
contracting company and to GSA immediately. I understand to that I will be charged a replacement fee to cover
the cost of the key (to be determined at time ofloss).
User Signature
User's Manager Signature
Print Name: User's Manager
Global Signal Acquisitions III LLC Manager/Director
Print Name: GSA's Manager/Director
Licensee Site Name: Mt Kelly
BUN#: 880230 28
Date
Date
Date
RECORDING REQUESTED BY AND
AFTER RECORDING RETURN TO:
UPF WASHINGTON INC
12410 E MIRABEAU PKWY#100
SPOKANE VALLEY WA 99216
REF#\./~ &-Q 7
Prepared by:
Parker Legal Group, PC
600 West Broadway, Suite 700
San Diego, California 92101
A.P.N. 167-540-52-00
DOC# 2017-0380511
11111111111111111111111111111111111111111111111 lllll 111111111111111111
Aug 21, 2017 01:47PM
OFFICIAL RECORDS Ernest J; Dronenburg, Jr.,
SAN DIEGO COUNTY RECORDER
FEES: $33.00
PAGES: 7
Space above this line for Recorder's Use
Prior recorded document(s) in San Diego County, California:
NIA
MEMORANDUM OF
RATIFICATION OF AMENDED AND RESTATED LICENSE AGREEMENT
This Memorandum of Ratification of Amended and Restated License Agreement is made
effective this 2D~ day of D~£M5£tr2016 by and between THE·CITY OF CARLSBAD,
with a mailing address of 1200 Carlsbad Village Dr., Carlsbad, California 92008 ("Licensor")
and STC ONE LLC, a Delaware limited liability company, registered in California as Tower
Company One LLC, by and through its attorney in fact, GLOBAL SIGNAL ACQUISITIONS III
LLC, a Delaware limited liability company, with a mailing address of 2000 Corporate Drive,
Canonsburg, Pennsylvania 15317 ("Licensee").
Site Name: Mt Kelly
Business Unit#: 880230
1
Documentary Transfer Tax $ -'O=· ____ _
__ Computed on full value of property
__ Computed on full value less liens and
encumbrances remaining at time of sale
__ Computed on full value of lease surpassing the
35-year term limit ____ _
2s,__ Computed on leased area of the property
Signature ofOeclarant or agent-Finn Name
1. Carlsbad Municipal Water District and Licensee entered into a License
Agreement dated April 6, 2010 (the "Original Agreement") whereby Licensee licensed certain
real property, together with access and utility easements, located in San Diego County,
California from Licensor (the "Premises"), as more particularly described on Exhibit A attached
hereto, all located within certain real property owned by Licensor (the "Property"). The
Property, of which the Premises is a part, is more particularly described on Exhibit B attached
hereto.
2. Licensor and Licensee have entered into a Ratification of Amended and Restated
License Agreement (the "Agreement"), of which this is a Memorandum, whereby Licensee
licensed use of the Premises from Licensee, all located on the Property.
3. The Premises may be used for the purposes of installing, maintaining and
operating a wireless telecommunication facility.
4. Licensor and Licensee agree that the Original Agreement shall be amended by
deleting it in its entirety and restating the Original Agreement as provided for in the Agreement.
5. The term of the Agreement is for ten (10) years, commencing on August 19, 2016
and expiring on August 18, 2026.
6. In the event of any inconsistency between this Memorandum and the Agreement,
the Agreement shall control.
7. The terms, covenants and provisions of the Agreement shall extend to and be
binding upon the respective executors, administrators, heirs, successors and assigns of Licensor
and Licensee.
8. This Memorandum does not contain the social security number of any person.
9. A copy of the Agreement is on file with Licensor and Licensee.
Site Name: Mt Kelly
Business Unit#: 880230
[Execution Pages Follow]
2
IN WITNESS WHEREOF, hereunto and to duplicates hereof, Licensor and Licensee
have caused this Memorandum to be duly executed on the day and year first written above.
Site Name: Mt Kelly
Business Unit#: 880230
LICENSOR:
THE CITY OF CARLSBAD
By:~~--~=------------------
Print arne: 1(.. e-.J ,·........ c.....-r....._w-c;--~
Title: c_;~'>' M.-....~ :e....$'
[Acknowledgment Appears on Following Page]
3
CALIFORNIA ACKNOWLEDGMENT
[California Civil Code § 1189]
A notary public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this cert~ficate is attached, and not the truthfulness,
accuracy, or validity of that document.
STATE OF CALIFORNIA
c. ["'\~·
COUNTY O~Q /t:./'U20{)
l\ 1...
On ~)Q_Q_ .. :JD dJJ}l.pbefore me,
Public,)
personally appeared K Jl ui' 0 CA-Lk'}.~ ' who
proved to me on the basis of satisfactory evidence to be '{; person(.g.J· whose names.(.a1 is/are-
subscribed to the within instrument and acknowledged to me that he/.sl:u~/-they-executed the same
in his/hefftheif authorized capacity~, and that by his/~ signatureWon the instrument
the perso~, or the entity upon behalf of which the person,.(Bfacted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal
(Seal)
•
TAMARA R. MCMINN
Notary Public -California
S1n Diego County ~
Commi11ion t1 2159561
M Comm. E rea Jul10. 2020
Site Name: Mt Kelly
Business Unit#: 880230
[Lessee Execution Page Follows]
4
Site Name: Mt Kelly
Business Unit#: 880230
LICENSEE:
STCONELLC,
a Delaware limited liability company,
registered in California as Tower Company
One LLC
nal Acquisitions III LLC,
,"ted liability company
F
[Acknowledgment Appears on Following Page]
5
State of Texas
County of -\\O.X( tS
Before me, f(\\, 'fS\'N\CM'\:tU\_ , a Notary Public, on this day personally appeared
g.. 0/\v'\~ ~~ , \[\CL]?vtSl~ of Global Signal
Acquisitions III LLC, a De aware hm1ted hab1hty company, as Attorney m Fact for STC One
LLC, registered in California as Tower Company One LLC, known to me (~n
-the t>alh of-__ or through driver's license, state jd card, resident id card, military--id
etrrcl, or passpm t1 to be the person whose name is subscribed to the foregoing instrument and
acknowledged to me that she/he executed the same for the purposes and consideration therein
expressed.
Given under my hand and seal of office this __ 8_,_ ___ day of ~'(tv\~ 2016.
(Personalized Seal)
Site Name: Mt Kelly
Business Unit#: 880230
~=~·=-~·~~~-~=-~~=~~~~ffiY~~ r ,,,,.,,,,,,,, All ALMANZA I ~ ..... ._,.YPt,~6"'-': I ~·~~\Notary Public. State of Texas
1 .P'I.i;,E Comm Expi1es 12-04-2019 -~ ~~~~~~~~s-No_t~_ry 10 130458743
6
(E) WAl(R lANK·
Site Name: Mt Kelly
Business Unit#: 880230
EXHIBIT A
(Legal Description of the Premises)
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EXHIBIT B
(Legal Description of the Property)
ALL OF THAT PORTION OF LOT "J" OF RANCHO AGUA HEDIONDA, IN THE CITY OF
CARLSBAD, 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, NOVEMBER 16, 1896, DESCRIBED AS FOLLOWS:
BEGINNING AT THE MOST NORTHERLY CORNER OF LOT 17 OF OCEAN
VIEW ESTATES AS SHOWN ON MAP THEREOF NO. 5825, FILED IN THE OFFICE OF
THE COUNTY RECORDER OF SAN DIEGO COUNTY, JANUARY 25, 1967;
THENCE NORTH 58° 59' 34" EAST, A DISTANCE OF 242.89 FEET TO THE TRUE
POINT OF BEGINNING OF THE PORTION TO BE DESCRIBED;
THENCE FROM SAID TRUE POINT OF BEGINNING SOUTH 23° 20' 06" EAST, A
DISTANCE OF 200.00 FEET;
THENCE SOUTH 65° 20' 06" EAST, A DISTANCE OF 103.00 FEET;
THENCE NORTH 66° 39' 54" EAST, A DISTANCE OF 115.00 FEET;
THENCE NORTH 33° 41' 38" EAST, A DISTANCE OF 62.67 FEET;
THENCE NORTH 10° 32' 29" WEST, A DISTANCE OF 139.44 FEET;
THENCE NORTH 69° 20' 06" WEST, A DISTANCE OF 180.00 FEET;
THENCE SOUTH 58° 59' 34" WEST, A DISTANCE OF 139.14 FEET TO THE TRUE
POINT OF BEGINNING.
AS SHOWN FOR CONVENIENCE SAKE ON ATTACHMENT "A" ATTACHED
HERETO AND MADE A PART HEREOF. (16-A)
Site Name: Mt Kelly
Business Unit#: 880230 8
. · MtKelly Site Name. . #· 880230 Business Umt .
9
WIRELESS TELECOMMUNICATIONS FACILITY
CARLSBAD MUNICIPAL WATER DISTRICT
LICENSE AGREEMENT
This License Agreement ("Agreement") is made between the Carlsbad Municipal Water
District, a public agency organized under the Municipal Water Act of 1911 ("Licensor") and is an
independent subsidiary of the City of Carlsbad, a municipal corporation, and STC One LLC, a
Delaware limited liability company ("Licensee"), effective At>y\\ \j> , 2010 ("Effective
Date"). T
RECITALS
A. Licensor is the owner of real property located at the Ellery Reservoir Site
("Property") and more particularly described in Exhibit "A".
B. Licensee desires twenty-four (24) hour access to and limited use of a portion of
the Property, as further described below to install, maintain and operate a wireless
telecommunication facility with equipment as more particularly described in Minor Conditional
Use Permit ("MCUP") No. 08-01, attached as Exhibit "B".
C. Licensor is willing to permit Licensee access to and limited use of a portion of
the Property for this stated purpose and pursuant to the below 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 (the
"License") to use that portion of the Property described in Exhibit "C" (the "Premises") for the
purposes of installing, maintaining, and operating the wireless telecommunication facility with
equipment described in MCUP No. 08-01. In addition to being subject to the terms and
conditions in this Agreement, this License and Licensee are subject to the terms and conditions of
MCUP No. 08-01 and any other required government approvals.
(a) The Premises may be used for (i) the transmission of and reception of
communication signals provided further that such frequency or frequencies is within those for
which Licensee, or any entity which controls, is controlled by or is under common control with
Licensee, is duly licensed by the Federal Communications Commission, and (ii) the construction,
alteration, maintenance, repair, replacement and relocation of a monopole or self-supporting
tower in compliance with MCUP No. 08-01 (the "Antenna Tower"), and (iii) the construction,
alteration, maintenance, repair, replacement and relocation of related equipment, cables, facilities
and equipment (the "Communications Equipment"), and (iv) activities related to any of the
foregoing, provided such activities do not require an expansion of the Premises or violate
Licensee's duties of non-interference set forth herein (collectively, "Licensee's Permitted Uses").
2. Term of License. The term of the License shall commence as of the Effective
Date above ("Commencement Date"). The initial License term and this Agreement shall be equal
to the term of corresponding MCUP No. 08-01 ("Initial Term"). If MCUP No. 08-01 is extended,
the Licensor's Executive Manager may renew this Agreement for an additional period equal to
the term for which MCUP No. 08-01 is extended.
The renewal of this Agreement is subject to any changes in the terms and
conditions requested by Licensor or Licensee and mutually agreed upon by the parties. Licensee
must provide the Licensor at least one hundred eighty (180) days written notice of its desire to
renew. The renewal shall not be effective unless and until the Licensee and Licensor have
executed a written amendment to this Agreement setting forth the particular terms and provisions
of the renewal.
3. License Fee. Licensee shall pay to Licensor an initial annual fee (the "License
Fee") of Thirty-Five Thousand, Six Hundred Eighty-Eight Dollars ($35,688.00). The License
Fee is payable in equal monthly installments of Two Thousand Nine Hundred Seventy-Four
Dollars ($2,974.00), without abatement, deduction, or offset, on the first day of each month. The
License 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%).
(a) If any monthly fee payment is not received by Licensor by the fifth (5th) 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. If Licensee 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 wireless telecommunication facility and equipment, including,
without limitation, any specially installed or ancillary equipment required by Licensee for its
wireless telecommunication facility from the Premises and Property within ten (10) business
days, after which Licensor may remove the facility and all equipment associated with Licensee's
wireless telecommunication facility itself and charge Licensee for the cost of removal and
storage. In addition to any other remedy available under this Agreement, Licensor may, without
notice to Licensee, exercise any or all rights to collect upon the performance bond posted
pursuant to Paragraph 14(b) below.
(b) In addition to the License Fee defined above, the Licensor shall also receive
an additional fee for each additional user that attaches to the Antenna Tower (the "Collocation
Fee"). The Collocation Fee shall be an amount equal to fifty percent (50%) of the effective
License Fee. Licensee is also to pay an initial One Thousand Dollar ($1,000.00) administration
fee for each additional user.
4. Relationship of License and MCUP No. 08-01. The granting of the License is
contingent upon the continuing validity of MCUP No. 08-01. This Agreement shall
automatically terminate upon the expiration or revocation of MCUP No. 08-01. 'The modification
or extension of MCUP No. 08-Ollfoes not obligate the Licensor to modify or extend this
Agreement, nor does the continuing validity of MCUP No. 08-01 preclude the Licensor from
exercising any rights under this Agreement, including the right to terminate this Agreement for
convenience under Paragraph 13 below.
(a) No collocation shall be permitted onto Licensee's Antenna Tower unless
collocation was first contemplated and authorized in the companion MCUP No. 08-01 and this
Agreement.
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 further
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.
(a) Licensee may not assign, sublicense or transfer the License, in whole or in
part, to any other persons or entity, nor may Licensee allow any other person or entity to co-
locate its facilities on Licensee's facilities without the prior written consent of Licensor, which
Licensor may withhold in its sole discretion. Licensee may not transfer the License to any
additional user, nor may additional collocations occur without the prior written consent of
Licensor. Any attempt by Licensee to do so without first obtaining Licensor's prior written
consent is grounds for immediate revocation or termination of the License by Licensor. For
approval of any sublicense of Licensee's facility or equipment to another person or entity,
Licensor will require additional compensation as set forth in Paragraph 3(b) above.
(b) Licensor's express approval shall not be required for the transfer of rights
and obligations under this Agreement to an affiliate of Licensee that is wholly owned and
controlled by Licensee, provided Licensee gives Licensor written notice of such action at least
sixty (60) days prior to any such transfer. "Control" means the right and power to direct
substantially all of the management and policies of the affiliate. Failure to provide written notice
prior to transfer is grounds for immediate revocation or termination of the License by Licensor.
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 Licensee's facilities and
equipment. All improvements shall be at Licensee's expense. Licensor will maintain the
Premises in a reasonable condition.
8. (a) Licensee and any/all additional users shall operate its Antenna Tower and
Communications Equipment in a manner that will not cause interference with the use or
enjoyment of the Property by Licensor and other lessees or licensees in and/or on the Property as
of the date of this Agreement including, if applicable, but not limited to, the HVAC systems, roof,
electronically controlled elevator system, computers, telephone systems, or any other system
serving the Property and/or its occupants. Licensor hereby acknowledges that Licensee's use of
the Premises for Licensee's Permitted Uses shall not constitute an impermissible interference.
(b) All operations of Licensee and any/all additional users shall be lawful and in
compliance with all Governmental Requirements (as hereafter defined), rules and regulations
including, but not limited to those of the Federal Communications Commission ("FCC") and the
Federal Aviation Administration ("FAA"). "Governmental Requirements" shall mean all
requirements under any federal, state or local statutes, rules, regulations, ordinances, or other
requirements of any duly constituted public authority having jurisdiction over the Property
(including, without limitation, the Premises).
(c) Licensee shall indemnify Licensor and hold it harmless from all expenses,
costs, damages, loss, claims or other expenses and liabilities arising from any interference caused
by Licensee's and any/all additional users' failure to comply with FCC or FAA rules and
regulations that is not curtailed within thirty (30) days after Licensee receives written notice of
such interference from Licensor. Licensee shall be responsible for all costs associated with any
tests deemed necessary to resolve any and all interference as set forth in this License. If such
interference caused by Licensee's and any/all additional users' failure to comply with FCC or
FAA rules and regulations has not been corrected within thirty (30) days after Licensee receives
notice thereof from Licensor, Licensor may require Licensee to remove the specific items from
the Antenna Tower and Communications Equipment causing such interference.
(d) Licensor shall not alter its existing or contemplated use of the Property, nor
shall Licensor permit any lessees, licensees, employees, invitees or agents obtaining rights to the
Property from and after the date hereof to use, any portion of the Property in any way which
interferes with the operations of Licensee. Without limiting the generality of the foregoing,
Licensor hereby acknowledges that in the event of any interference with Licensee's Permitted
Uses as a result of the transmission or reception (or both) of radio, microwave or other
telecommunications signals by a future lessee, licensee or occupant of the Property, Licensee's
rights hereunder to conduct Licensee's Permitted Uses shall be and remain superior to the rights
of any such future lessee, licensee or occupant, subject, however, to the provisions of Paragraph
8(f) below. Licensor further acknowledges that interference with Licensee's operations shall
cause Licensee to suffer irreparable injury and entitle Licensee, in addition to exercising any
other rights hereunder or under applicable law, to seek the immediate enjoinment of such
interference against the interfering party.
(e) Licensor reserves the right to license other portions of the Property to other
parties during the term of this License. Accordingly, Licensor agrees that any other person or
entity who may install equipment subsequent to the Effective Date in and/or on the Property will
be permitted to install only such Communications Equipment that is of the type and frequency
that will not cause any interference to Licensee or persons or entities claiming through or under
Licensee. In the event any such person or entity's equipment causes such interference, Licensor
will cause the interfering party to take all steps necessary to correct and eliminate the interference
or such interfering party will be required to cease operations until such interference is removed.
To the extent that Licensee's operations are not within the parameters of its FCC license, this
protection from co-located interference will not be applicable, but it shall be applicable with
respect to those operations, or portions thereof, falling within the FCC license parameters.
Notwithstanding the foregoing, Licensee's right to be free from interference and Licensor's duties
concerning the prevention and/or correction of interference shall be subject to Paragraph 8(f)
below.
(f) In the event that Licensee commences using the Premises in a manner as to
which Licensee is not presently licensed by the FCC but with respect to which Licensee hereafter
obtains necessary FCC licensure, Licensee's right to conduct such particular use shall be
subordinate to the use of the Property by Licensor, other Licensees, licensees or occupants thereof
existing on or before the date on which Licensee commences such use. Licensor shall be under
no obligation to exercise the duties concerning interference described above in Paragraph 8(e)
with respect to a future use of the Premises by Licensee as described in this Paragraph 8(f).
9. Be fully responsible for any equipment and facility 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, as amended from time to time.
11. (a) Secure all necessary permits or conditional use permits from any
governmental agency to install any wireless telecommunication facility and associated equipment
of Licensee on the Premises provided upon Licensor's written consent. Licensor does hereby
authorize Licensee and its employees, representatives, agents, and consultants to prepare, execute,
submit, file and present on behalf of Licensor building, permitting, zoning or land-use
applications with the appropriate local, state and/or federal agencies necessary to obtain land use
changes, special exceptions, zoning variances, conditional use permits, special use permits,
administrative permits, construction permits, operation permits and/or building permits. Licensor
understands that any such applications and/or the satisfaction of any requirements thereof may
require Licensor's cooperation, which Licensor hereby agrees to provide. Licensee may
substitute, modify 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 from such
substitution, modification and/or 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. If Licensee's plans and specifications are
approved by Licensor, Licensee shall notify all other telecommunications and information
services providers located on the Property per Paragraph 29 below (hereinafter "Carrier"), 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. Any
unauthorized modifications of Licensee's facilities or equipment is grounds for immediate
revocation of the License by Licensor.
(b) Maintain MCUP No. 08-01 and all of the certificates, permits and other
approvals, which may be required from other federal, state or local authorities, and any temporary
easements or other rights of entry, which are required from any third parties. Licensor shall
cooperate with Licensee in its efforts to obtain such approvals and/or temporary easements or
rights of entry, as may be required for Licensee's wireless telecommunication facility and
equipment as approved in MCUP No. 08-01. If (i) any application and/or negotiations by
Licensee for any required certificates, permit, license, temporary easement, right of entry,
approval, policy of title insurance, or agreement is finally denied, rejected and/or terminated, (ii)
any such certificate, permit, license, temporary easement, right of entry, approval or agreement is
canceled, or expires, or lapses or is otherwise withdrawn or terminated, (iii) any Hazardous
Materials (as defined in Paragraph 18 below) are discovered or otherwise become located on the
Property or the Premises, other than as a direct result of Licensee's activities, or (iv) due to
technological changes or business 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 from delivery of written notice from Licensee to Licensor, provided Licensee has
removed all of its personal property, fixtures, electrical meters, and equipment from the Premises
and Property 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 the 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, modify or remove its
equipment, facilities, and/or other property if Licensor determines, in its sole discretion, that
Licensee's equipment, facilities, and/or 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 Agreement, 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 further documentation of this release and
waiver as Licensor may reasonably require in the future.
(b) 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
Licensee's facilities, equipment, or personal property in place. Upon approval, Licensee shall
execute, acknowledge and deliver to Licensor any necessary documents to transfer ownership of
its facilities, equipment and personal property to Licensor.
14. (a) Pay a fee 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 (1st) day after expiration or termination of this Agreement and will continue until
Licensee vacates the Premises by removal of its facilities, equipment, and/or personal property, or
by authorized abandonment in accordance with Paragraph 13(b) above.
(b) As security for Licensee's performance under this paragraph and Paragraph
13 above, Licensee shall post a faithful performance bond, in a form acceptable to the City
Attorney and in the amount of Twenty Thousand and 00/100 Dollars ($20,000.00) with the
Engineering Department. Absent a breach of any term or condition of this Agreement, the
performance bond will be released upon Licensee's written request and after confirmation by the
City Engineer or designee that the wireless telecommunication facility and equipment has been
removed and the Premises restored to the satisfaction of the City Engineer.
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 reservoir site and as a part of
the water delivery system of Licensor and that it is necessary to maintain adequate security at all
times for the primary utilization of the Property by Licensor.
16. (a) The parties agree to indemnify, defend and hold harmless the other party, its
parent company or other affiliates, successors, assigns, officers, directors, shareholders, agents,
elected officials, and employees (collectively, "Indemnified Persons"), from and against all
claims and liabilities caused by or arising out of (i) such party's breach of any of its obligations,
covenants, or warranties contained herein, or (ii) such party's acts or omissions with regard to the
Agreement. However, in the event of an Indemnified Person's established contributory
10
negligence or other fault, the Indemnified Person shall not be indemnified hereunder to the extent
that the Indemnified Person's established negligence or other fault caused such claim or liability.
(b) Indemnification hereunder shall include any and all costs, expenses,
attorneys' fees and liability incurred by the Indemnified Persons 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 damage 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 from 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 coverage and minimum limits indicated below, unless
the City Attorney/General Counsel or Carlsbad's 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 and the City of Carlsbad, 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, Licensee will obtain such additional
insurance coverage, as Licensee deems adequate at Licensee's sole expense.
1) Commercial General Liability. $1,000,000 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. Workers
Compensation limits as required by the California Labor Code and Employer's
Liability limits of $1,000,000 per accident for bodily injury.
(c) Licensee will ensure that the policies of insurance required under this
Agreement contain, or are endorsed to contain, the following provisions:
1) Licensor and the City of Carlsbad will be named as additional
insureds on General Liability.
2) Licensee will obtain occurrence coverage, 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) days prior
written notice to Licensor and the City of Carlsbad in accordance with Paragraph
32 below.
il
(d) Prior to Licensor's execution of this Agreement and annually thereafter,
Licensee will furnish certificates of insurance and endorsements to Licensor and the City of
Carlsbad.
(e) If Licensee fails to maintain any of these insurance coverages, the Licensor
may immediately terminate this License.
(f) Licensor reserves the rights to require, at any time, complete and certified
copies of any or all required insurance policies and endorsement.
18. The parties both agree that each will refrain 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 or regulation. In the event of a breach of
this provision by either party, the other may immediately terminate this Agreement and pursue
any remedies to which it is entitled by law.
19. Install, at Licensee's own cost:
(a) a separate electrical panel and meter for its wireless telecommunication
facility and equipment and be responsible for all electrical costs attributable to its facility and
equipment.
(b) a separate water meter for any landscaping required by MCUP No. 08-01 or
other federal, state, or local approval and be responsible for all water and maintenance costs
attributable to this requirement.
20. Provide Licensor with "as-built" drawings for the wireless telecommunication
facility and equipment within sixty (60) days after the facility 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 imposed by Licensor.
22. Repair or refmish, 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 wireless telecommunication facility and equipment. Without limiting any other
available remedies, if Licensee 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 for 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 wireless telecommunication facility and equipment are in good repair and free of any
defects.
LICENSOR'S OBLIGATIONS
Licensor will:
24. Allow the construction, installation, operation, and maintenance of Licensee's
wireless telecommunication facility with associated equipment on the Property and Premises for
use by Licensee, as approved in MCUP No. 08-01.
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 right of entry for as long as this
License is in effect, as required for extension of electric and telephone service to the Premises as
specified in MCUP No. 08-01.
28. Licensor and its agents shall have the right to enter the Premises upon twenty-
four (24) hours 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 rights Licensor may have as the local regulatory
authority. In the event of an emergency, the notice requirement will be waived.
29. Licensee understands and agrees that the License is not exclusive. Licensor
reserves the right to enter into agreements with other parties, including, but not limited to,
additional Carriers for use of the Property. In the event that an additional Carrier is licensed to
use the Property, it shall be such Carrier's responsibility, at its expense, to ensure that such
installation is constructed and operated in accordance with applicable FCC regulations. If
Licensor approves such 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 the
Carrier's facilities and equipment not less that 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 the other Carriers over
the use of the Property shall be submitted to Licensor's City Manager or an authorized designee
for final resolution.
GENERAL PROVISIONS
30. Any breach of Licensee's obligations under this Agreement is grounds for
revocation or termination of this License by Licensor.
31. Any action at law or in equity brought by either of the parties for the purpose 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.
32. All notices under this 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:
STC One LLC CITY OF CARLSBAD
c/o Global Signal, LLC 1200 Carlsbad Village Drive
2000 Corporate Drive Carlsbad, CA 92008
Canonsburg, PA 15 317 Attn: Joe Garuba
Attn: Property Management Title: Municipal Property Manager
33. 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 term, covenant, or condition for any
subsequent breach of the same or any other term, covenant, or condition of this Agreement.
34. 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 of the provision shall be ineffective to the
extent of such invalidity only, and the remaining terms and conditions shall be interpreted so as to
give the greatest effect to them.
35. The terms and conditions of this Agreement shall bind and inure to the benefit of
Licensor and Licensee and, except as otherwise provided in this Agreement, to their respective
heirs, distributees, executors, administrators, successors, and assigns.
36. 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 a regulatory authority.
37. This Agreement shall not be modified or amended except by a writing signed by
authorized representatives of the parties.
38. All identified or referred to Exhibits are incorporated into this Agreement by this
reference.
[Signature page follows]
10
IN WITNESS WHEREOF, Licensee and Licensor have executed this Agreement effective the
day and year first written above.
LICENSEE
STC One LLC, a Delaware limited
liability company
By: Global Signal Acquisitions III LLC,
a DelawajceJimitedJdability company, its
Attoie'y-j«*act
LICENSOR
Carlsb4d/]/li4nicipal Water ffijstrict>
LORRAINE
Secretary
If required by Licensor, proper notarial acknowledgment of execution by Licensee must be;.' ^l«
attached. If a corporation, the Agreement must be signed by one corporate officer from eaclj W\
the following two groups: "••:., <&i\
*Group 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.
APPROVED AS TO FORM:
RONAfeD R. BALL, General Counsel
By:/ \s£— f^> C^' ' g"*<aeL
•AoGiototrt General Counsel
11
T^KROWCEDGWTENT
State of
County of
On 10 before me, Cfah 0f5r frftW
* (insert name and title of the officer)
personally appeared _ _ _ _ __ ,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they 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.
I certify under PENALTY OF PERJURY under the laws of the State of
paragraph is true and correct.
that the foregoing
WITNESS my hand and official seal.
Signature (Seal)
NOTARY PUBLICMARICOPA COUNTY
My Commission Expires
EXHIBIT A
DESCRIPTION OF "PROPERTY"
The subject area is identified as APN 167-540-52. The property is currently used as a
water reservoir by the City of Carlsbad Water Department
fwuc KMO wo unrrt ttguaiwe vu.t it, »u» ru M
Exhibit "A"
EXHIBIT B
MINOR CONDITIONAL USE PERMIT NO. 08-01
City of Carlsbad
PlannSrvg Department
May 16,2008
Crown Castle
Jon Dohm
Ste. 303
510 Castillo St.
Santa Barbara, CA 93101
SUBJECT: MINOR CONDITIONAL USE PERMIT NO. MCUP 08-01 - PCS 150 MOUNT
KELLY - Request to allow the continued operation of a wireless communication facility
located at 2237 Janis Way, in the R-A-10,000 Zone and Local Facilities Management Zone 1.
Dear Jon Dohm,
The Assistant Planning Director has completed a review of your application for a Minor
Conditional Use Permit MCUP 08-01 for the continued operation of a wireless communication
facility Jocated at 2237 Janis Way. This iietter "has sheen .amended due ito a change tin
Condition ^No, ifi, 'Which now extends itne minor iCUP tfor ?ten .years retroactively jfrom
August 20, 2006. Piis letter supercedes 4he ^previous ^approval letter 'dated IMarch J5,
2008. A notice was sent to property owners within a 300' radius of the subject property
requesting comments regarding the above request. Comments were received within the ten
day notice period (ending on January 5, 2008) and a request for an Administrative Hearing was
filed. On February 19, 2008, the Assistant Planning Director held an Administrative Hearing to
consider said request. Public testimony was given. After careful consideration of the public,
testimony given at the Administrative Hearing, a review of the facts set forth in the application,
and a review of the application's consistency with City Council Policy No. 64, the Assistant
Planning Director has determined that the four findings required for granting a Minor
Conditional Use Permit can be made and therefore, APPROVES this request based on the
following findings and conditions.
Findings:
1, That the requested use is necessary or desirable for the development of the community,
and is in harmony with the various elements and objectives of the general plan,
including, if applicable, the certified local coastal program, specific plan or master plan in
that the use is consistent with the General Plan in that the Residential Low-
Medium _(RLM) Land Use designation does not preclude the provision of Wireless
Communication Facility (WCF) uses. The WCF is located on a public utility
installation in a residential zone (EHery Reservoir) which is not publicly
accessible and therefore is a preferred location pursuant to City Council Policy
No. 64, Wireless Communication Facilities. The project's location and stealth
faux tree design also enable the project to comply with Genera! Plan objectives
that seek to maintain and enhance Carlsbad's appearance.
1635 Faraday Avenue* Carlsbad, CA 92008-7314 • (760) 6D2-46QD • FAX (760) 602-8559 • www.ci.carlsbad.oa.us
MCUP OB-D1 - PCS 150 MOudT KELLY
May 16, 2008
. Page 2
2. That the requested use is not detrimental to existing uses or to uses specifically
permitted in the zone in which the proposed use is to be located in that the existing
WCF will not result in any additional building coverage and there will be no
alterations to the existing site design.
3. That the site for the proposed conditional use is adequate in size and shape to
accommodate the yards, setbacks, walls, fences, parking, loading facilities, buffer
areas, landscaping and other development features prescribed in this code and required
by the Planning Director in order to integrate the use with other uses in the
neighborhood in that the WCF is existing and no modifications are being proposed.
The original approval of the use (CUP 96-06(A)) was granted on November 7, 2001.
4. That the street system serving the proposed use is adequate to properly handle all
traffic generated by the proposed use in that the unmanned WCF use would require,
on average, only monthly maintenance visits and occasional visits in response to
operational problems.
5. That the proposed WCF is consistent with City Council Policy No. 64 In that it is located
in a residential zone on the site of a non-publicly accessible public utility
installation owned by the Carlsbad Municipal Water District (Ellery Reservoir),
which the Policy identifies as a preferred location for WCFs. Also, the panel
antennas are located within a faux palm tree and the equipment boxes are
screened from public view by a slope and landscaping, both of which comply with
the Policy's design guidelines for stealth design. Furthermore, the project has
been conditioned to comply with the requirement to maintain compliance with
FCC RF Exposure Guidelines.
6. That the Planning Director has determined that the project belongs to a class of projects
that the State Secretary for Resources has found do not have a significant impact on the
environment, and it is therefore categorically exempt from the requirement for the
preparation of environmental documents pursuant to Section 15301 - existing facility,
of the state CEQA Guidelines. In making this determination, the Planning Director has
found that the exceptions listed in Section 15300.2 of the state CCQA Guidelines do not—
apply to this project.
7. The Planning Director has reviewed each of the exactions imposed on the Developer
contained in this resolution, and hereby finds, in this case that the exactions are
imposed to mitigate impacts caused by or reasonably related to the project, and the
extent and the degree of the exaction is in rough proportionality to the impact caused by
the project.
Conditions:
1, Approval is granted for MCUP OB-01 as shown on Exhibits "A" - "D" dated November
• 7, 2001 on file in the Planning Department and incorporated herein by reference.
Development shall occur substantially as shown unless otherwise noted in these
conditions.
2. If any of the following conditions fail to occur, or if they are, by their terms, to be
implemented and maintained over time, if any of such conditions fail to be so
MCUP 08-01 - PCS 150 MOUNT KELLY
May 16, 2008
•Page 3
implemented and maintained according to their terms, the City shall have the right to
revoke or modify all approvals herein granted; deny or further condition issuance of all
future building permits; deny, revoke, or further condition all certificates of occupancy
issued under the authority of approvals herein granted; record a notice of violation on
the property title; institute and prosecute litigation to compel their compliance with said
conditions or seek damages for their violation. No vested rights are gained by Developer
or a successor in interest by the City's approval of this Minor Conditional Use Permit.
3. Staff is authorized and directed to make, or require the Developer to make, all
corrections and modifications to the MCUP 08-01 documents, as necessary to make
them internally consistent and in conformity with the final action on the project.
Development shall occur substantially as shown on the approved Exhibits. Any
proposed development different from this approval shall require an amendment to this
approval.
4. The Developer/Operator shall and does hereby agree to indemnify, protect, defend and
hold harmless the City of Carlsbad, its Council members, officers, employees, agents,
and representatives, from and against any and all liabilities, losses, damages, demands,'
claims and costs, including court costs and attorney's fees incurred by the City arising,
directly or indirectly, from (a) City's approval and issuance of this Minor Conditional
Use Permit, (b) City's approval or issuance of any permit or action, whether
discretionary or non-discretionary, in connection with the use contemplated herein, and
(c) Developer/Operator's installation and operation of the facility permitted hereby,
including without limitation, any and all liabilities arising from the emission by the facility
of electromagnetic fields or other energy waves or emissions.
5. The Developer shall comply with all applicable provisions of federal, state, and local
ordinances in effect at the time of building permit issuance.
6, This project shall comply with all conditions and mitigation measures, which are required
as part of the Zone 1 Local Facilities Management Plan and any amendments made to
that Plan prior to the issuance of building permits.
T. WICUP 08-01 shall be reviewed by the Planning Director on a yearly basis to determine if
all conditions of this permit have been met and that the use does not have a substantial
negative effect on surrounding properties or the public health, safety and general
welfare. If the Planning Director determines that: 1) the minor conditional use permit
was obtained by fraud or misrepresentation; or 2) the use for which such approval is
granted is not being exercised; or 3) the conditions of approval have not been met; or 4)
the minor conditional use permit is being or recently has been exercised contrary to any
of the terms or conditions of approval; or 5) the use for which such approval was
granted has ceased to exist or has been suspended for one year or more; or 6) the use
is JnJ/iolationjotany_statute,jDrdinance,Jaw.-or_regulation;_or_7.)_the_use-permitted-by the
minor conditional use permit is being or has been so exercised as to be detrimental to
the public health, safety or welfare or so as to constitute a nuisance, the Planning
Director shall hold an informal public hearing and after providing the permittee the
opportunity to be heard, the planning director may revoke and terminate the minor
conditional use permit in whole or in part, reaffirm the minor conditional use permit,
modify the conditions or impose new conditions.
MCUP 08-01 - PCS 150 MOo.JT KELLY
May 16, 2008
- Page A
8. This Minor Conditional Use Permit is granted for a period of 10 years retroactively from
August 20, 2006 through August 19, 2016. This permit may be revoked at any time
after a public hearing, if it is found that the use has a substantial detrimental effect on
surrounding land uses and the public's health and welfare, or the conditions imposed
herein have not been met. This permit may be extended for a reasonable period of time
not to exceed 10 years upon written application of the permittee made no less than 90
days prior to the expiration date. The Planning Director may not grant such extension,
unless he or she finds that there are no substantial negative effects on surrounding land
uses or the public's health and welfare. If a substantial negative effect on surrounding
land uses or the public's health and welfare is found, the extension shall be denied or
granted with conditions which will eliminate or substantially reduce such effects. There
is no limit to the number of extensions the Planning Director may grant,
9. Developer/Operator shall comply with the Federal Communication Commission's
guidelines on limits for human exposure to radio frequency (RF) electromagnetic fields.
Within six (6) months from the date of this letter, and with any time extension or
amendment request, the Developer/Operator shall submit to the Planning Director either
(1) verification that the project -is categorically excluded from having to determine
compliance with the RF exposure guidelines per 47 CFR §1.13C7(b)(1); or (2) a project
implementation report which provides cumulative field measurements of RF emissions
of all antennas installed at the subject site. The report shall quantify the RF emissions
and compare the results with the exposure limits established by the FCC guidelines.
Said report shall be subject to review and approval by the Planning Director for
consistency with the Project's preliminary report on RF exposure submitted with the
initial project application and for consistency with the FCC guidelines. If, on review, the
City finds that the Project does not meet the FCC guidelines, the City may revoke or
modify this conditional use permit.
10. Developer shall submit to the City a Notice of Restriction executed by the owner of the
real property to be developed. Said notice is to be filed in the office of the County
Recorder, subject to the satisfaction of the Planning Director, notifying all interested
parties and successors in interest that the City of Carlsbad has issued a(n) Minor
Conditional Use "Permit on the property. Said Notice of Restriction shall note the
property description, location of the file containing complete project details and all
conditions of approval as well as any conditions or restrictions specified for inclusion in
the Notice of Restriction. The Planning Director has the authority to execute and record
an amendment to the notice which modifies or terminates said notice upon a showing of
good cause by the Developer or successor in interest.
11. Developer shall maintain in good standing a license agreement (fully executed) with the
City for use of and access to the project site.
12. Developer jahall _rep_ort, in writing, to'the Planning Director within 30 days, any_address
change from thaTwhicri is"shown on The permit application,
Engineering;
13. Developer shall comply with the City's requirements of the current National Pollutant
Discharge Elimination System (NPDES) permit, Developer shall implement best
management practices at all times. Best management practices include but not limited
to pollution treatment practices or devices, general housekeeping practices, pollution
MCUP 08-01 - PCS 150 MOUNT KELLY
May 16, 2008
•Page 5 .
prevention and educational practices, maintenance procedures, and other management
practices or devices to prevent or reduce the discharge of pollutants to storm water,
receiving water or stormwater conveyance system to the maximum extent practicable,
NOTICE
Please take NOTICE that approval of your project includes the "imposition''^ fees, dedications,
reservations, or other exactions hereafter collectively referred to for convenience as
"fees/exactions,"
You have 90 days from the date of final approval to protest imposition of these fees/exactions.
If you protest them, you must follow the protest procedure set forth in Government Code
Section 6S020(a), and file the protest and any other required information with the City Manager
for processing in accordance with Carlsbad Municipal Code Section 3.32.030, Failure to timely
follow that procedure will bar any subsequent legal action to attack, review, set aside, void, or
annul their imposition,
You are hereby FURTHER NOTIFIED that your right to protest the specified fees/exactions
DOES NOT APPLY to water and sewer connection fees and capacity charges, nor planning,
zoning, grading or other similar application processing or service fees in connection with this
project; NOR DOES IT APPLY to any fees/exactions of which you have previously been given a
NOTICE similar to this, or as to which the statute of limitations has previously otherwise
expired.
This decision may be appealed by you or any other member of the public to the Planning
Commission within ten days of the date of this letter. Appeals must be submitted in writing to
the Planning Department at 1635 Faraday Avenue in Carlsbad, along with a payment of
$598.50. The filing of such appeal within such time limit shall stay the effective date of the.
order of the Planning Director until such time as a final decision on the appeal is reached. If
you have any questions regarding this matter, please feel free to contact Chris Sexton at (750)
6D2-4624.
Sincerely,
GARY T. BARBERJO
Assistant Planning Director
GTB:CS:lt
c: Chris DeCerbo
Scott Donnell
Tecla Levy
File Copy
Data Entry
CUP 96-06(A)
EXHIBIT C
DESCRIPTION OF "PREMISES"
WtUNXl
(£) WATER TANK
Exhibit "C"