HomeMy WebLinkAbout2006-11-21; City Council; 18810; Cellular Site license agreeement at safety centerCITY OF CARLSBAD - AGENDA BILL
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MTG.
DEPT.
18,810
11-21-06
ED
License Agreement with Sprint PCS
Assets L.L.C. for Cellular Site at
Carlsbad Public Safety Center
DEPT. HEAD £#T ^
CITY ATTY. {$& "
CITY MGR. ~g£>
RECOMMENDED ACTION:
Adopt Resolution No. 2006-339 authorizing the Mayor to execute the License Agreement
between the City of Carlsbad and Sprint PCS Assets L.L.C for continuation of use of its cellular
antenna site at the Carlsbad Public Safety Center.
ITEM EXPLANATION:
In 1999 the City Council approved a License Agreement with Cox Communications P.C.S to
install cellular antenna on the exterior corner of the Public Safety Center parapet wall.
Subsequent to execution of that agreement, Cox Communications P.C.S was acquired by
Sprint P.C.S. ("Sprint") and it has continued to operate its facility at the site to this day.
The original Conditional Use Permit No. 98-10 for the site expired in August 2004, necessitating
that Sprint enter into a new License Agreement for use of the site and obtain a new Conditional
Use Permit for continued use. In addition, several of Sprint's financial accounts for this and
other cellular sites had become delinquent. Sprint was instructed that all financial accounts with
the City must be brought current in order to continue operating at the site, that it must reapply
for a Conditional Use Permit, and that it must enter into a new License Agreement with the City.
The Conditional Use Permit ( MCUP 06-09) has now been approved, the new License
Agreement has been executed by Sprint, and all of Sprint's financial accounts with the City are
up to date and in order. The new Conditional Use Permit will allow for Sprint to operate at the
Safety Center site for an additional five (5) year period, with a monthly license fee of $2743.00
and an additional fee for utilities of $210.00 per month.
FISCAL IMPACT:
This License Agreement will generate $2743 per month or $32,916 in the first year. Future
annual increases will be set at the percentage increase in the Consumer Price Index - All
Urban Consumers for the San Diego MSA, from the date of commencement. The minimum
annual increase will be three (3) percent, but in no case more than six (6) percent. As
compensation for electrical power used for the site, an additional Utility Charge will be applied
as follows:
Year 1 -
Year 2 -
Year 3 -
Year 4 -
Year 5 -
$210 per month or $2520 per year
$220 per month or $2640 per year
$231 per month or $2772 per year
$243 per month or $2916 per year
$255 per month or $3060 per year
Page 2
ENVIRONMENTAL IMPACT:
The Planning Director has determined that the project is exempt from the California
Environmental Quality Act, pursuant to Section 15301 of the CEQA Guidelines. Section 15301
exempts projects or activities that consist of leasing of existing public facilities involving no
expansion of use. Lease of public property for operation of a cellular communications site, and
no other plan for development of that property, is such an activity.
EXHIBITS:
I, Resolution No. 2006-339
icense Agreement Between the City of Carlsbad and Sprint P.C.S Assets L.L.C - Safety
Service Center.
DEPARTMENT CONTACT: Cynthia Haas 760-602-2732 chaas@ci.carlsbad.ca.us
FOR CITY CLERKS USE ONLY.
COUNCIL ACTION: APPROVED
DENIED
CONTINUED
WITHDRAWN
AMENDED *
n
nn
CONTINUED TO DATE SPECIFIC
CONTINUED TO DATE UNKNOWN
RETURNED TO STAFF
OTHER -SEE MINUTES
D
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1 RESOLUTION NO. 2006-339
2 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CARLSBAD, CALIFORNIA, AUTHORIZING THE CITY
3 MANAGER TO EXECUTE THE LICENSE AGREEMENT
4 BETWEEN THE CITY OF CARSLBAD AND SPRINT P.C.S
ASSETS L.L.C. FOR CONTINUED USE OF THE PUBLIC
5 SAFETY CENTER FOR ITS CELLULAR FACILITY
6
WHEREAS, Sprint P.C.S Assets ("Sprint") had operated a cellular antenna
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facility at the Public Safety Center since 1999; and8
9 WHEREAS, the Conditional Use Permit 98-10 expired in August 2004, and Sprint
10 applied for a new Conditional Use Permit (MCUP 09-06), which was approved; and
11 WHEREAS, Sprint has executed a new License Agreement with the City of
12 Carlsbad for continued use of the site as a cellular antenna facility; and
13 WHEREAS, the City has determined that continuation of use of the site as a
14 cellular facility is in the best interest of the public.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of
16
Carlsbad, California, as follows:
17
1. That the above recitations are true and correct.18
19 2. That the Mayor is hereby authorized to execute the License Agreement
20 between the City of Carlsbad and Sprint P.C.S Assets L.L.C and the City of
21 Carlsbad.
22 3. That the term of the License shall coincide with the term of MCUP 09-06.
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PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council
of the City of Carlsbad on the 21st day of November, 2006, by the following vote:
AYES: Council Members Lewis, Hall, Kulchin, Packard, Sigafoose
NOES: None
ABSENT: None
ATTEST:
LORRA4NE IvU/VOODTcity"clerk'
(SEAL)
WIRELESS TELECOMMUNICATIONS FACILITY
LICENSE AGREEMENT
This Agreement is made between the City of Carlsbad, a municipal corporation
("Licensor"), and _Sprint PCS Assets, L.L.C., a Delaware Limited Liability Corporation
("Licensee"), effective fJo^^i^x, 2,1 , 200^ ("Effective Date").
RECITALS
A. Licensor is the owner of real property commonly known as the Carlsbad Public
Safety and Service Center ("Property") and more particularly described in Exhibit "A.".
B. Licensee desires access to and limited use of a portion of the Property to install,
maintain and operate wireless telecommunication facilities and equipment as more particularly
described in Conditional Use Permit ("MCUP") No.06-09, attached as Exhibit "B."
C. Licensor is willing to allow Licensee access to and limited use of a portion of the
Property for this purpose under certain terms and conditions.
NOW, THEREFORE, the parties agree as follows:
GRANT OF LICENSE
1. Scope of License. Licensor grants to Licensee a non-exclusive license to use the
portion of the Property described in Exhibit "C" (the "Premises") for the purposes of installing,
maintaining, and operating the facilities and equipment described in MCUP No. 06-09. hi
addition to being subject to the terms and conditions in this Agreement, the license is subject to
the terms and conditions of MCUP No.06-09 and any other required government approvals.
2. Term of License. The term of the license shall commence as of the Effective Date
above ("Commencement Date"). The initial term shall be equal to the term of corresponding
MCUP No. 06-09 ("Initial Term"). If MCUP No. 06-09 is extended, the Licensor's Executive
Manager may renew the Agreement for an additional period equal to the term for which MCUP
No. 06-09 is extended ("Renewal Terms").
The renewal of this Agreement is subject to any changes in the terms and
conditions requested by Licensor or 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 Two Thousand, Nine Hundred and Sixteen Dollars ($32,916.00) The fee is
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payable in equal monthly installments of Two Thousand Six Hundred Dollars ($2743.00),
without abatement, deduction, or offset, on the first day of the month. The fee(s) will be
adjusted annually on the anniversary of the Commencement Date by the percentage increase in
the most recently published Consumer Price Index—All Urban Consumers for the San Diego
Metropolitan Statistical Area over the rate in effect on the Commencement Date of the prior
year. This increase shall not be less than three percent (3%) or more than six percent (6%).
If any monthly fee payment is not received by Licensor by the fifth day of the
month in which it is due, the fee payment shall be deemed delinquent and ten percent (10%)
interest shall accrue on the unpaid amount. 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 facilities and equipment from the Premises within ten (10)
business days, or remove the facilities and equipment itself and charge Licensee for the cost of
removal and storage.
4. Relationship of License and MCUP No. 06-09 The granting of this license
is contingent upon the continuing validity of MCUP No.06-09. This Agreement shall
automatically terminate upon the expiration or revocation of MCUP No. 06-09. The
modification or extension of MCUP No. 06-09 does not obligate the Licensor to modify or
extend this Agreement nor does the continuing validity of MCUP No. 06-09 preclude the
Licensor from exercising any rights under this Agreement, including the right to terminate this
Agreement for convenience under paragraph 13 below.
5. Limitations on License. Nothing in this Agreement is intended to create an
interest or estate of any kind or extent in the Property or Premises. Licensee 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 granted by this
Agreement, 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. Any attempt by
licensee to do so without prior written consent is grounds for immediate revocation or
termination of the License by Licensor. For approval of any sublicense of Licensee's facilities or
equipment to another person or entity, Licensor will require additional compensation.
(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 owned and controlled by
Licensee, provided Licensee gives Licensor written notice of such action at least sixty (60) days
prior to the 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.
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6. No Warranty. Licensor makes no warranty or representation that the Premises are
suitable for Licensee's use. Licensee has inspected the Premises and accepts the same "as is."
Licensor is under no obligation to perform any work or provide any materials to prepare the
Premises for Licensee.
LICENSEE'S OBLIGATIONS
Licensee shall:
7. Use the Premises solely for the purposes allowed within the scope of the license. If
required by Licensor, a security fence, consisting of chain link construction or similar but
comparable construction, shall be placed around the perimeter of the facilities and equipment of
Licensee. All improvements shall be at Licensee's expense. Licensor will maintain the Premises
in a reasonable condition.
8. Construct and operate Licensee's equipment and facilities in accordance with
applicable regulations issued by the Federal Communications Commission ("FCC"). This
includes, without limitation, installing any equipment, at Licensee's expense, to eliminate any
interference that might be caused by the location of Licensee's facilities and equipment with the
existing facilities and equipment of Licensor or of other parties (such as safety and emergency
communications equipment) already on the Property at the commencement of this Agreement or
with frequencies utilized by law enforcement and fire and rescue services personnel.
9. Be fully responsible for any equipment and facilities installed on the Premises by
Licensee, including providing fire, theft, and extended coverage insurance.
10. Comply with all applicable federal, state, and local laws, including FCC regulations,
City of Carlsbad City Council Policy No. 64, and related City of Carlsbad Municipal and Zoning
Code provisions.
11. (a) Secure any necessary permits or conditional use permits from any governmental
agency to install any facilities or equipment of Licensee on the Premises. Licensee may
substitute, 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 for 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 (hereinafter "Carrier"), in writing, as
to the scheduled date and time of commencement of construction or installation of Licensee's
modified equipment not less the five (5) business days prior to such date. Any unauthorized
modifications of Licensee's facilities or equipment is ground for immediate revocation of the
License by Licensor.
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(b) Maintain MCUP No. 06-09 and all of the certificates, permits and other
approvals which may be required from other federal, state or local authorities, and any easements
which are required from any third parties. Licensor shall cooperate with Licensee in its efforts to
obtain such approvals and/or easements, as may be required for Licensee's facilities and
equipment as approved in MCUP No.06-09. If (i) any application and/or negotiations by
Licensee for any required certificate, permit, license, easement, approval, policy of title
insurance, or agreement is finally denied, rejected and/or terminated, (ii) any such certificate,
permit, license, easement, approval or agreement is canceled, or expires, or lapses or is otherwise
withdrawn or terminated, (iii) any Hazardous Materials are discovered or otherwise become
located on the Property or the Premises, other than as direct result of Licensee's activities, or (iv)
due to technological changes, Licensee determines that it is no longer practical to use the
Premises for Licensee's intended purposes, then Licensee shall have the right to terminate this
License Agreement, which termination shall be effective no sooner than one hundred eighty
(180) days from delivery of written notice from Licensee to Licensor provided Licensee has
removed all of its property and equipment from the 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; provided that, Licensee shall obtain its electric power through
which the City obtains its electric power for the Property and shall pay to the City as
compensation for electric power used through that source the following fee payable in advance at
the time of payment of the monthly fee provided under paragraph 3 of the License:
a. Two hundred ten dollars ($210) per month for year one of the License.
b. Two hundred twenty dollars ($220) per month for year two of the License.
c. Two hundred thirty one dollars ($231) per month for year three of the License.
d. Two hundred forty three dollars ($243) per month for year four of the License.
e. Two hundred fifty five dollars ($255) per month for year five of the License.
Licensee specifically acknowledges that the grant of this license may subject Licensee to certain
taxes under California Revenue and Taxation Code section 107.6 and agrees it is solely
responsible for the payment of these taxes.
13. 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 it 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 License, Licensee waives any and all rights it may have under
federal or state law for relocation assistance benefits if Licensor requires Licensee to relocate or
make use of the Property or Premises in such a way as to displace Licensee from the Property or
Premises. Licensee shall execute any further documentation of this release and waiver as
Licensor may reasonably require in the future.
If Licensee does not protect, temporarily disconnect, relocate, or remove its equipment,
facilities, and/or other property within the time period specified above, Licensor may remove the
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equipment, facilities, and property and charge Licensee for the cost of removal and storage.
Alternatively, upon Licensee's request, Licensor may approve the abandonment of Licensor's
facilities, equipment, or property in place. Upon approval, Licensee shall execute, acknowledge
and deliver any necessary documents to transfer ownership of the facilities, equipment and
property to Licensor.
14. Pay a 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 day after expiration or termination of this Agreement and continue until Licensee
vacates the Premises by removal of its facilities, equipment, and/or property, or by authorized
abandonment in accordance with paragraph 13(c) above.
As security for Licensee's performance under this paragraph and paragraph 13, Licensee
shall post a faithful performance bond, in a form acceptable to the City Attorney and in the
amount of Five Thousand Dollars ($ 5000.00) with the Engineering Department. The bond will
be released upon Licensee's written request after confirmation by the City Engineer or a
designee that the facilities and equipment have been removed and the Premises restored to the
City Engineer's satisfaction.
15. Exercise due diligence in utilizing the Premises of Licensor so as to not interfere
with utilization of the Property or Premises by Licensor or other authorized persons, and
Licensee agrees to comply with any rules and regulations Licensor may promulgate at any time
in reference to utilization of the Property or Premises by any party other than Licensor. It is
understood by Licensee that the Property is used by Licensor as Public Safety Center and as a
part of the Safety and Emergency Services system of the Licensor and that it is necessary to
maintain adequate security at all times for the primary utilization of the Property by Licensor.
16. Waive all claims against Licensor for any damages to the personal property and
equipment of Licensee in, upon or about the Property and Premises and for injuries to any
employees of Licensee or their agents in, upon, or about the Property or Premises from any cause
arising at any time. In addition, Licensee will indemnify, defend, and hold Licensor, including
their 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, 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 equipment and facilities in
good condition and repair, as provided for in this Agreement.
Licensee's indemnification shall include any and all costs, expenses, attorneys fees and
liability incurred by the Indemnified Parties in defending against such claims, whether the same
proceed to judgment or not.
17. (a) Obtain and maintain for the duration of the Agreement and any and all
amendments, insurance against claims for injuries to persons or 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
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insurance carrier admitted and authorized to do business in the State of California. The
insurance carrier is required to have a current Best's Key Rating of not less than "A-:V".
(b) Maintain the types of coverages and minimum limits indicated below, unless the
City Attorney or City Manager approves a lower amount. These minimum amounts of coverage
will not constitute any limitations or cap on Licensee's indemnification obligations under this
Agreement. Licensor, its officers agents and employees make no representation that the limits of
the insurance specified to be carried by Licensee pursuant to this Agreement are adequate to
protect Licensee. If Licensee believes that any required insurance coverage is inadequate,
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. 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 will be named as an additional insureds on General Liability.
2) Licensee will obtain occurrence coverage.
3) This insurance will be in force during the life of the Agreement and any
extensions of it and will not be canceled without thirty (30) day's prior written notice to Licensor
sent by certified mail pursuant to the Notice endorsements to Licensor.
(d) Prior to Licensor's execution of this Agreement and annually thereafter,
Licensee will furnish certificates of insurance and endorsements to Licensor.
(e) If Licensee fails to maintain any of these insurance coverages, the Licensor
may immediately terminate this License.
(f) Licensor reserves the right to require, at anytime, complete and certified copies
of any or all required insurance policies and endorsements.
18. 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
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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 its own cost:
(a) a separate electrical panel and meter for its facilities and equipment and
be responsible for all electrical costs attributable to its facilities and equipment.
(b) a separate water meter for any landscaping required by MCUP No.06-09
or other federal,"state, or local approval and be responsible for all water and maintenance costs
attributable to the this requirement.]
20. Provide Licensor with "as-built" drawings for the facilities and equipment within
thirty (30) days after the facilities and equipment are installed.
21. Perform the installation in a neat, responsible, workmanlike manner, using generally
accepted construction standards, consistent with such reasonable requirements as shall be in
imposed by Licensor.
22. Repair or refinish, at Licensee's sole cost and expense, any surface or other portion
of the Property or Premises that is damaged by or during the installation, maintenance, or
operation of the facilities and equipment. Without limiting any other available remedies, if
License fails to repair or refinish such damage, Licensor may, in its sole discretion, but without
any obligation to do so, repair or refinish the damage and Licensee shall reimburse Licensor all
costs and expenses incurred in the repair or refinishing.
23. Ensure that the Premises are maintained in a clean, safe condition and that Licensee's
facilities and equipment are in good repair and free of any defects.
LICENSOR'S OBLIGATIONS
Licensor will:
24. Allow the construction and installation of equipment and facilities on the Property
for use of Licensee, as approved in MCUP No. 06-09.
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.
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27. Grant any necessary temporary easement for as long as this License is in effect, as
required for extension of electric and telephone service to the site as specified in MCUP No. 06-
09.
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.
29. Licensee understands and agrees that this 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 the new Carrier's responsibility, at its expense to ensure that such
installation is constructed and operated in accordance with applicable FCC regulations. If
Licensor approves Carrier's plans and specifications, Licensor shall notify Licensee in writing as
to the scheduled date and time of commencement of construction and installation of Carrier's
facilities and equipment not less than five (5) business days prior to such date. Any change to
the additional Carrier's approved facilities, equipment and location shall be made compatible
with licensee's facilities and equipment at Carrier's sole expense. Except as otherwise required
by applicable law, disputes between the Licensee and 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 purposes of
enforcing a right provided by this Agreement will be tried in a court of competent jurisdiction in
the County of San Diego, State of California, and the parties waive all provisions of law
providing for a change of venue in these proceedings to any other county.
32. All notices under this License Agreement shall be in writing and, unless otherwise
provided in this agreement, shall be deemed validly given if sent by certified mail, return receipt
requested, or via recognized overnight courier service, addressed as follows (or to any other
mailing address which the party to be notified may designate to the other party by such notice).
All notices properly given as provided for in this section shall be deemed to be given on the date
when sent. Should Licensor or Licensee have a change of address, the other party shall
immediately be notified as provided in this section of such change.
LICENSEE: LICENSOR:
SPRINT CONTRACTS & PERFORMANCE CITY OF CARLSBAD
Site ID No. SD03XC155-F 1635 Faraday Avenue
Mail Stop KSOPHT0101-22650 Carlsbad, CA 92008
6391 Sprint Parkway Attn: Cynthia Haas
Overland Park, KS 66251-2650 Title: Manager Economic Development & Real Estate
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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 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, 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 regulatory authority.
37. This Agreement shall not be modified or amended except by a writing signed by
authorized representatives of the parties.
IN WITNESS WHEREOF, Licensee and Licensor have executed this Agreement
effective the day and year first written above.
LICENSEE LICENSOR
**By:
(sign here)
(print name/title)
LORRAINE M. WOOD
City Clerk
If required by Licensor, proper notarial acknowledgment of execution by Licensee must be attached. If a ^L It
Corporation. Agreement must be signed by one corporate officer from each of the following two groups."
*Group A.
Chairman,
**Group B.
Secretary,
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President, or Assistant Secretary,
Vice-President 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:
RONALD R. BALL, City Attorney
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10 Sy>q^XO££~?
IM
SD03XC155-F
LICENSOR NOTARY BLOCK:
STATE OF
COUNTY OF
)
) ss
)
The foregoing instrument was (choose one) CUattested or [^acknowledged before me this
day of , 20 , by (choose one) \ I
, asas an individual,
of
corporation, on behalf of the corporation, or f~l
__, partner or agent on behalf of
. partnership.
(AFFIX NOTARIAL SEAL)(OFFICIAL NOTARY SIGNATURE)
NOTARY PUBLIC STATE OF
My commission expires:(PRINTED, TYPED OR STAMPED NAME OF NOTARY)
COMMISSION NUMBER:
LICENSEE NOTARY BLOCK:
STATE OF KANSAS
COUNTY OF JOHNSON
)
) ss
)
The foregoing instrument was acknowledged before me this 23rd day of August, 2005, by
Charles Macheers, Lease Specialist II of Contracts & Performarwe for Sprint PCS Assets, L.L.C., a
Delaware limited liability company, who executed the foregoinV instrument on4>ehalf of th£ company.
(AFFIX NOTARIAL SEAL)
My c(
DIANE M. ADAMSON
i of Kansas
My Appt. Expires
:iAL NOTARY SIGNATURE)
NOTARY PUBLIC STATE OF KANSAS
DIANE M. ADAMSON
Sprint
CERTIFICATE
The undersigned, the duly authorized Assistant Secretary/General Attorney of Sprint PCS
Assets, L.L.C., a Delaware limited liability company ("Sprint"), does hereby certify that Charles
Macheers, Lease Specialist II for Sprint, is authorized to execute on behalf of Sprint that certain
Wireless Telecommunications Facility License Agreement whereby the City of Carlsbad would
allow Sprint to use a portion of certain real property commonly described as the Carlsbad Public
Safety and Service Center for use as a communications facility.
Dated as of the 17th day of August, 2005.
Name:
JomrChapniE
Assistant Secietary/General Attorney
O)
EXHIBIT B
CONDITIONAL USE PERMIT NO. MCUP 09-06
City Attorney Approved Version 05/18/05
12
City of Carlsbad
Planning Department
November 8, 2006
Allan Fischer
Sprint/Nextel Property Services
Mailstop KSOPHB0206-2B652
6300 Sprint Parkway
Overland Park, KS 66251-6103
MCUP 06-09 - CARLSBAD SAFETY CENTER TELECOM
Dear Mr. Fischer:
The Planning Director has completed a review of your application for a Minor Conditional Use
Permit MCUP 06-09 for an existing wireless facility at the City of Carlsbad Safety Center. The
Safety Center is at 2560 Orion Way in the Open Space Zone and Local Facilities Management
Zone 5. The wireless facility was originally permitted and built under CUP 98-10, which is now
expired. MCUP 06-09 simply replaces CUP 98-10, would allow the existing facility to remain,
and would not change the facility in any way. The existing facility has operated at the Safety
Center for a number of years.
A notice was sent to property owners within a 300' radius of the subject property requesting
comments regarding the above request to allow the existing facility to remain. No comments
were received within the ten day notice period (ending October 29, 2006). After careful
consideration of the circumstances surrounding this request, the Planning Director has
determined that the findings required for granting a Minor Conditional Use Permit for a wireless
facility 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 facility:
• Enables wireless communication, which is a valuable community
service;
• Helps implement General Plan Public Safety Element goals, may help to
minimize injury, loss of life, and property damage due to disaster and
crime and does not interfere with any essential public safety operations
associated with the Safety Center;
• Complies with General Plan Land Use Element goals in that it is located
in an aesthetically pleasing manner, and;
• Is not located in the Coastal Zone or any specific or master plan.
1635 Faraday Avenue • Carlsbad, CA 92008-7314 • (760) 602-4600 • FAX (760) 602-8559 • www.ci.carlsbad.ca.us
MCUP 06-09 - CARLSBAD SAFETY CENTER TELECOM
November 8, 2006
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 facility:
• Is in an unobtrusive location on the Safety Center building that is not
visible to the public or surrounding uses;
• Is designed to be compatible with the building, and;
• Is in an industrial/office area.
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 Safety Center site features a sufficient yard area and
building design to enable the facility, including all antennas and mechanical
equipment, to be compatible with the building and not visible to the public or
surrounding uses.
4. That the street system serving the proposed use is adequate to properly handle all
traffic generated by the proposed use in that the facility, which is unmanned,
requires only periodic maintenance visits and otherwise generates no traffic.
5. That the proposed wireless communication facility is consistent with Council Policy No.
64, in that it complies with the Council Policy location, design, and performance
guidelines in that the facility:
• Is located on public property not in a residential zone and in an
industrial/office area and is placed on the Safety Center so as not to be
visible to its surroundings;
• Features a stealth design with antennas mounted flush with parapet walls
and painted to match the building and equipment located behind a screen
wall, and;
• Has demonstrated compliance with FCC RF exposure guidelines and is
conditioned to maintain compliance with these 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 15303 - construction and
installation of small new equipment facilities or structures, 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 CEQA Guidelines do not apply to this
project.
Conditions;
1. Approval is granted for MCUP 06-09 as shown on Exhibits A - F dated September 2,
1998 (former exhibits of CUP 98-10) on file in the Planning Department and
incorporated herein by reference. Development shall occur substantially as shown
unless otherwise noted in these conditions.
MCUP 06-09 - CARLSBAD SAFETY CENTER TELECOM
November 8, 2006
Page 3
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
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 06-09 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. MCUP 06-09 is granted for a period of 5 years from November 6, 2006 through
November 5, 2011. 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 5 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 it 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.
6. MCUP 06-09 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 in violation of any statute, ordinance, law or regulation; or 7) the use permitted by the
MCUP 06-09 - CARLSBAD SAFETY CENTER TELECOM
November 8, 2006
Page 4
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.
7. 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 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.
8. 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 §1.1307(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.
9. Developer shall report, in writing, to the Planning Director within 30 days, any address
change from that which is shown on the permit application.
10. Developer shall comply with all applicable provisions of federal, state, and local
ordinances in effect at the time of any building permit issuance.
11. This project shall comply with all conditions and mitigation measures, which are required
as part of the Zone 5 Local Facilities Management Plan and any amendments made to
that Plan prior to the issuance of any building permits.
12. Developer shall maintain in good standing a license agreement with the City for use of
and access to the project site.
Code Reminders:
13. Approval of this request shall not excuse compliance with all applicable sections of the
Zoning Ordinance and all other applicable City ordinances in effect at time of building
permit issuance, except as otherwise specifically provided herein
MCUP 06-09 - CARLSBAD SAFETY CENTER TELECOM
November 8, 2006
PageS _
NOTICE
Please take NOTICE that approval of your project includes the "imposition" of 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 66020(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
$440.00. 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 Scott Donnell at (760)
602-4618.
incerely,
DON NEU
Acting Planning Director
DN:SD:bd
c: Chris DeCerbo, Team Leader
David Hauser, Deputy City Engineer, Land Use
Cynthia Haas, Economic Development Manager
File Copy
Data Entry
•23
EXHIBIT C
DESCRIPTION OF "PREMISES"
A portion of Lot "B" of Rancho Agua Hedionda, Map No. 11573 in the City of Carlsbad, County
of San Diego.
APN 209-050-26
Located at 2560 Orion, Way, Carlsbad, CA 92008, also known as the Carlsbad Public Safety
Center.
City Attorney Approved Version 05/18/05
13