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Home My WebLink About2018-04-24; Municipal Water District; ; First Amendment to the License Agreement between New Cingular Wireless PCS, LLC and the Carlsbad Municipal Water District allowing for the removal and replacement of a waCA Review fJ{__ MUNICIPAL WATER DISTRICT Staff Report Meeting Date To: From: Staff Contact: Subject April 24, 2018 President and Board Members Kevin Crawford, Executive Manager Curtis M. Jackson, Real Estate Manager Curtis.jackson@carlsbadca.gov or 760-434-2836 First Amendment to the License Agreement between New Cingular Wireless PCS, LLC and the Carlsbad Municipal Water District allowing for the removal and replacement of a water tank ladder through the purchase and provision of a Z-Boom scissor lift machine at the Twin D Water Tank site. Recommended Action Adopt a Resolution authorizing the Executive Manager to execute a First Amendment to the License Agreement ("Agreement") between New Cingular Wireless PCS, LLC ("AT&T") and the Carlsbad Municipal Water District ("CMWD") allowing for the removal and replacement of a water tank ladder through the purchase and provision of a Z-Boom scissor lift machine ("Z- Boom") at the Twin D Water Tank site. Executive Summary AT&T entered into an Agreement with CMWD in June 2016 to install telecommunication equipment on the Twin D Water Tanks ("Property") adjacent to and at the same general time frame as an additional telecommunications provider ("Verizon"). Due to unforeseen on-site conditions, the location of AT& T's facilities conflicts with the approved location of Verizon's telecommunication facilities. AT&T and CMWD have agreed to allow AT&T to remove a ladder from the water tank to allow Verizon the space necessary for installing their facilities. As consideration for the removal of the ladder, AT&T will purchase and provide CMWD with a Z- Boom scissor lift. The addition of the ladder as consideration requires an amendment to the Agreement, which must be approved by the CMWD Board. Discussion AT&T entered into an Agreement with CMWD on June 15, 2016 to install telecommunication facilities on the Twin D Water Tanks ("Property") subsequent to approval of their Conditional Use Permit (No. 15-09). At the same general time, an additional telecommunications provider ("Verizon") was also seeking approval of a CUP (No. 15-07) to site telecommunication facilities on the same water tank. Both CUP's were approved within one-day of each-other; however, due to unforeseen conditions on the site, there was an inadvertent overlap of approved siting locations. Subsequently, both AT&T and Verizon entered into 10-year license agreements with CMWD to install telecommunication facilities on the Property. April 24, 2018 Item #8 Page 1 of 7 AT&T was the first of the two licensees to install their facilities on the Property, after which it became apparent that Verizon would not be able to install their facilities per their approved CUP. In an effort to remedy the situation, AT&T, Verizon, and CMWD coordinated to determine a solution. AT&T and CMWD subsequently agreed that it was more cost efficient and beneficial to CMWD for AT&T to remove an existing ladder on the water tank, and in return purchase and provide CMWD with a Z-Boom scissor lift to replace the loss of the ladder. The removal of the ladder will allow AT&T to keep their facilities in place and allow Verizon the space necessary to install their facilities per their CUP and license agreement. Fiscal Analysis The removal of the existing ladder and replacement with the Z-Boom will not modify the Licensee Fee under the Agreement. The replacement of the water tank ladder with the Z-Boom scissor lift machine is consideration currently valued at approximately $129,060. Next Steps AT&T will commence removal of the existing ladder on the Twin D Water Tank and purchase and provide a Z-Boom scissor lift to CMWD. Subsequently, Verizon will commence installation of their telecommunication facilities at the Property. Environmental Evaluation (CEQA) This license is categorically exempt from the requirement for the preparation of environmental documents pursuant to Section 15303 (New Construction of Small Structures) of the state CEQA Guidelines. Exhibits 1. CMWD Board Resolution. April 24, 2018 Item #8 Page 2 of 7 RESOLUTION NO. 1593 A RESOLUTION OF THE BOARD OF DIRECTORS OF THE CARLSBAD MUNICIPAL WATER DISTRICT BOARD (CMWD), AUTHORIZING THE EXECUTIVE MANAGER TO EXECUTE A FIRST AMENDMENT TO THE LICENSE AGREEMENT BETWEEN NEW CINGULAR WIRELESS PCS, LLC AND THE CARLSBAD MUNICIPAL WATER DISTRICT ALLOWING FOR THE REMOVAL AND REPLACEMENT OF A WATER TANK LADDER THROUGH THE PURCHASE AND PROVISION OF A Z-BOOM SCISSOR LIFT MACHINE LOCATED AT THE TWIN D WATER TANK SITE. WHEREAS, on August 11, 2015, New Cingular Wireless PCS, LLC ("Licensee") obtained a Minor Conditional Use Permit (MCUP 15-09) to locate telecommunication facilities on the Twin D Water Tank ("Water Tank"); and WHEREAS, CMWD and Licensee entered into a license agreement ("Agreement") dated June 15, 2016 (Resolution No. 1549) to locate telecommunications facilities on the Water Tank; and WHEREAS, Licensee installed their telecommunication facilities on the Water Tank pursuant to specifications identified in their MCUP; however, the location of Licensee's facilities is in conflict with a previously approved MCUP 15-07 issued to Verizon Wireless (VAW) LLC, dba Verizon Wireless; WHEREAS, CMWD and Licensee have agreed to the removal of a ladder on the Water Tank adjacent to Licensee's facilities to allow for the space needed for Verizon Wireless to install their communication facilities pursuant to Verizon's MCUP 15-07 and license agreement with CMWD; WHEREAS, CMWD has agreed to accept a Z-60/37 DC and FE Series Articulating Z-Boom scissor- lift machine ("Z-Boom") as compensation for the removal of the Water Tank ladder; and WHEREAS, the parties desire to modify the terms of the Agreement to include the Z-Boom as compensation under the terms of the Agreement, valued at $129,060. NOW, THEREFORE, BE IT RESOLVED by the Carlsbad Municipal Water District Board of the City of Carlsbad, California, as follows: 1. That the above recitations are true and correct. 2. That the Executive Manager is authorized and directed to execute the First Amendment to the License Agreement with New Cingular Wireless PCS, LLC, which is attached hereto as Attachment "A". April 24, 2018 Item #8 Page 3 of 7 3. All other terms, conditions, covenants, and provisions of the Agreement shall remain in full force and effect. In the event of any conflict between the terms of the Agreement and this First Amendment, the terms of this First Amendment shall control. 4. That the Executive Manager, or his designee, is hereby authorized to take all actions necessary to implement the License Agreement with New Cingular Wi.reless PCS, LLC, that are consistent with and in full compliance with the terms and conditions expressed in the aforementioned Agreement, and to the satisfaction of the City Attorney, including any amendment to the Agreement. PASSED, APPROVED AND ADOPTED at a Special Meeting of the Carlsbad Municipal Water District of the City of Carlsbad on the 24th day of April 2018, by the following vote, to wit: AYES: NOES: ABSENT: K. Blackburn, M. Schumacher, C. Schumacher, M. Packard. None. M. Hall. (SEAL) April 24, 2018 Item #8 Page 4 of 7 FIRST AMENDMENT TO LICENSE AGREEMENT This First Amendmentto License Agreement ("First Amendment") is effective as of ~ cf= , 20 I 8 (the "Effective Date"), by and between the Carlsbad Municipal Water District ("Licensor") an~ ngular Wireless PCS, LLC, a Delaware limited liability ("Licensee"). RECITALS WHEREAS, the Parties entered into that certain License Agreement dated June 15, 2016 ("Agreement"), to locate wireless telecommunication facilities ("Communication Equipment") on the Twin D Tanks located at 6580 Black Rail Road, Carlsbad, California, 92011 ("Property); WHEREAS, the Licensee installed their Communication Equipment pursuant to specifications identified in their Conditional Use Permit No. 15-09 ("CUP") on a water tank located on the Property (the "Water Tank"); however, the location of Licensee's Communication Equipment is in conflict with a previously approved Conditional Use Permit 15-07 issued to Verizon Wireless (VA W) LLC, dba Verizon Wireless; WHEREAS, Licensor and Licensee have agreed to the removal of a ladder on the Water Tank adjacent to Licensee's Communication Equipment to allow for the space needed for Verizon Wireless to install their communication facilities pursuant to their CUP and license agreement with the Licensor; WHEREAS, Licensee has offered to replace the Water Tank ladder through the purchase and provision of a scissor-lift machine rather than relocate their Communication Equipment; WHEREAS, Licensor has agreed to accept a Z-60/37 DC and FE Series Articulating Z-Boom scissor-lift machine ("Z-Boom") as compensation for the removal of the Water Tank ladder; WHEREAS, the parties desire to modify the terms of the Agreement to include the Z-Boom as compensation under the terms of the Agreement. NOW, THEREFORE, in consideration of the covenants and conditions contained herein, the parties hereto agree as follows: 1. Within thirty (30) calendar days of the Effective Date, Licensee agrees to remove the ladder at the Water Tank, at Licensee's expense. 2. Within thirty (30) calendar days of the Effective Date, Licensee agrees to compensate Licensor for the removal of the existing ladder at the Water Tank by purchasing and providing to Licensor the Z-Boom. 3. All other terms, conditions, covenants and provisions of the Agreement shall remain in full force and effect. In the event of any conflict between the terms of the Agreement and this First Amendment, the terms of this First Amendment shall control. 1 April 24, 2018 Item #8 Page 5 of 7 4. The individuals executing this First Amendment each represent and warrant that they have the legal power, right, and actual authority to bind Lessee to the terms and conditions of this First Amendment. "LICENSOR" District APPROVED AS TO FORM: CELIA BREWER, City Attorney ATTEST: Date: f;; f C"-f / / f -----+, ~~,I-------'~~---- "LICENSEE" New Cingular Wireless PCS, LLC By: _______ ~--- / Title: ---~ ~ iu 12 -C..-: E Date: fl, 2-/zt2!1L NOTARY ACKNOWLEDGEMENT OF LESSEE'S SIGNATURE(S) MUST BE ATTACHED 2 April 24, 2018 Item #8 Page 6 of 7 ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of SAN DIEGO On APRIL 12, 2018 before me, ELEASA C. MARKS, NOTARY PUBLIC (insert name and title of the officer) personally appeared _J_A_R_R_O_D_B_ES_S ___________________ _ who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/ai:e subscribed to the within instrument and acknowledged to me that he/sJ::\e/tAey executed the same in his/ReF/tReif authorized capacity(+es), and that by his/ReF/tReif 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 PENAL TY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. Signature _~----Ck:-·---------- r · :~.· · · · ELEASA.tMARKS •• ·t • Commission# 2110776 ~ ... ,,; Notary Public • California I z · San Diego County ~ t 4 ~ • • .MJtOT"C·zxg1r:s.M:Y,9,}a1a( WITNESS my hand and official seal. (Seal) April 24, 2018 Item #8 Page 7 of 7