HomeMy WebLinkAbout2020-07-28; City Council; ; License Agreement with Crown Castle Towers 06-2 to Operate a Wireless Communication Facility on City Property at the Future Robertson Ranch Community Park SiteCITY COUNCIL
Staff Report
CA Review AF
Meeting Date July 28, 2020
To: Mayor and City Council
From: Scott Chadwick, City Manager
Staff Contact: Curtis M. Jackson, Real Estate Manager
curtis.jackson@carlsbadca.gov, 760-434-2836
Subject License Agreement with Crown Castle Towers 06-2 to Operate a Wireless
Communication Facility on City Property at the Future Robertson Ranch
Community Park Site
Recommended Action
Adopt a resolution authorizing the city manager to execute a temporary license agreement with
Crown Castle Towers 06-02 LLC to operate a wireless communication facility on the site where
the Robertson Ranch Community Park is to be built.
Executive Summary
Crown Castle provides wireless communication infrastructure for digital communication
networks. It has three wireless communication facilities on a property that is to be developed
and will lose its access to that location. The company has asked the city for permission to
temporarily place these facilities on the city's future Robertson Ranch Community Park site for
a period of three years, with three one-year extension options. The City Council is being asked
to approve the license agreement and grant authority to the city manager to take all actions
necessary to implement the license agreement.
Discussion
Crown Castle is licensed by the Federal Communications Commission to provide communications
infrastructure for digital networks. It has three wireless communication facility towers on the
Marjah Acres property on the west side of El Camino Real, just south of Kelly Drive. The owners
of that property have applied to develop the land. Once that construction begins, Crown Castle
will no longer be able to operate its facilities on the site.
The city owns a property on Trailblazer Way adjacent to the northeast corner of Cannon Road
and El Camino Real, which is less than a mile away. It is undeveloped and vacant, though it is the
site of the proposed Robertson Ranch Park. Crown Castle has asked to move its three wireless
communications towers onto this property so that it can maintain cellular coverage in the
Robertson Ranch area and adjacent neighborhoods.
Robertson Ranch Park may be developed within the next three to six years, contingent on City
Council direction. If it is, Crown Castle would seek the city's approval to permanently locate its
wireless facilities within the park. Crown Castle cannot permanently locate its facilities on the
property now because the future park has not been designed.
July 28, 2020 Item #2 Page 1 of 53
Crown Castle's temporary facilities include a 75-foot-tall monopole telecommunications tower
and an equipment building. The tower and equipment building will accommodate all three
wireless communication facilities.
The Planning Commission granted approval of a conditional use permit for Crown Castle to
place its facilities at this location on June 3, 2020. This agreement is for an initial term of three
years with three extension options of one year each and shall become effective upon the City
Council's approval of the agreement.
Fiscal Analysis
Under this agreement, the city will receive annual revenue starting at $60,780, or $5,065 per
month, subject to a three percent increase per year as detailed in the below rent schedule. The
rent received will be deposited into the city's General Fund. The city shall also receive two non-
refundable park improvement fees totaling $50,000, $10,000 to cover the cost of reviewing the
agreement, and $40,000 upon its commencement. These fees are intended to increase the park
improvement budget for the future Robertson Ranch Community Park and will be deposited
into the Public Facilities Fee Fund.
Period (years) Minimum annual rent
1 $60,780
2 $62,603
3 $64,482
4 $66,416
5 $68,408
6 $70,460
Staff anticipates the total minimum revenue generated from the agreement to be $393,149 over
six years.
Next Steps
Upon execution of the license agreement and the issuance of any required building permits, the
city will begin collecting rent at the negotiated rate. Crown Castle is currently working to obtain its
building permit or permits to construct the facilities.
Environmental Evaluation (CEQA)
The proposed action is exempt from the California Environmental Quality Act under State CEQA
guidelines 15301 — Existing Facilities. Section 15301 exempts the leasing of property involving
negligible or no expansion of use beyond that existing at the time of the agency's determination.
Exhibits
1. Resolution
July 28, 2020 Item #2 Page 2 of 53
RESOLUTION NO. 2020-158
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD,
CALIFORNIA, AUTHORIZING THE CITY MANAGER TO EXECUTE A LICENSE
AGREEMENT WITH CROWN CASTLE TOWERS 06-02 LLC TO OPERATE A
WIRELESS COMMUNICATION FACILITY ON CITY PROPERTY (APN 208-010-
38-00, 208-010-39-00, AND 208-010-42-00; FUTURE ROBERTSON RANCH
COMMUNITY PARK SITE)
WHEREAS, city staff has negotiated a license agreement (Agreement) with Crown Castle Towers
06-2 LLC (Crown Castle), to locate wireless telecommunication facilities on city property located at APN:
208-010-38, 39, and 42 (Property); and
WHEREAS, Crown Castle has obtained approval of a Conditional Use Permit (CUP 2019-0179)
(Planning Commission Resolution No. 7370) on June 3, 2020 to locate its facilities on the Property; and
WHEREAS, the term of the Agreement is three years, with three one-year extension options; and
WHEREAS, the city will receive two non-refundable park improvement fees totaling $50,000
($10,000 to cover the cost of reviewing the Agreement, and $40,000 upon commencement of the
Agreement), which will be deposited into the Public Facilities Fee Fund; and
WHEREAS, the Agreement will generate $60,780 in revenue for the city over the first year of the
agreement and will increase three percent each year thereafter.
NOW, THEREFORE, BE IT RESOLVED by the City of Carlsbad, California, as follows that:
1. The above recitations are true and correct.
2. That the Agreement, which is attached hereto as Attachment A, is approved as to form, and
the City Manager is hereby authorized and directed to execute the Agreement.
3. That the city manager, or his designee, is hereby authorized to take all actions necessary to
implement the license agreement with Crown Castle, that are consistent with and in full
July 28, 2020 Item #2 Page 3 of 53
compliance with the terms and conditions expressed in the aforementioned Agreement,
including any Agreement extensions, and to the satisfaction of the City Attorney, including
any amendment to the Agreement.
4. The City Planner has determined that the proposed action is exempt from the California
Environmental Quality Act under State CEQA guidelines 15301 — Existing Facilities. Section
15301 exempts the leasing of property involving negligible or no expansion of use beyond
that existing at the time of the agency's determination.
PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council of the City of
Carlsbad on the 28th day of July, 2020, by the following vote, to wit:
AYES: Hall, Blackburn, Bhat-Patel, Schumacher.
NAYS: None.
ABSENT: None.
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MATT HALL, Mayor
ATTEST:
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BARBARA ENGLESON, City Clerk
(SEAL)
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A.,
July 28, 2020 Item #2 Page 4 of 53
TEMPORARY COMMUNICATIONS SITE LICENSE AGREEMENT
between
THE CITY OF CARLSBAD
and
CROWN CASTLE TOWERS 06-2 LLC
EFFECTIVE DATE: 0117)611'°7A)
Site Name: Trailblazer Park
Business Unit #: 831227
TABLE OF CONTENTS
BACKGROUND 1
AGREEMENT 2
1. DEFINITIONS 2
2. LICENSE AREA 5
2.1. Grant and Scope 5
2.2. License Area Condition 5
2.3. Certified Access Specialist Disclosure 6
2.4. Right to Record 6
3. USE 6
3.1. Permitted Use; Equipment 6
3.2. Prohibited Uses 6
3.3. Access 6
3.3.1. Licensee Access 6
3.3.2. Entry and Inspection 7
3.4. Utilities 7
3.5. Tests and Surveys 7
3.6. Modifications; Alterations 8
3.7. Equipment Removal; Replacements; Routine Maintenance 8
3.8. Construction and Installation Activities 8
3.8.1. Structural Review 8
3.8.2. Performance Standards 9
3.8.3. Licensee's Contractors 9
3.8.4. Labor and Material Costs 9
3.8.5. Coordination; Supervision 9
3.8.6. Staging Area 9
3.8.7. As-Built Site Plans 10
3.9. Mineral and Water Rights 10
3.9.1. General 10
3.9.2. Mineral Rights 10
3.9.3. Notice and Relocation 11
4. TERM 12
4.1. Initial Term; Renewal Term(s) 12
Site Name: Trailblazer Park
Business Unit #: 831227
5.
4.2. Holdover Term
4.3. Right of First License
LICENSE FEE; OTHER PAYMENTS TO THE DISTRICT
12
13
13
5.1. Base License Fee 13
5.2. Annual Adjustments 14
5.4. Late Charges 14
5.5. Interest 14
5.6. Park Improvement Fees 14
5.7. Flat Fee Based Revenue Share 14
5.8. Access Route Repair 15
5.9. Payment Procedures 15
6. GOVERNMENTAL APPROVALS 16
6.1. Proprietary Capacity Acknowledgment 16
6.2. Permits and Other Governmental Approvals 16
7. MAINTENANCE 16
7.1. Licensee's Maintenance Obligations 16
7.2. City's Maintenance Obligations 17
8. INTERFERENCE 17
8.1. Licensee's Interference Obligations 17
8.2. City's Interference Obligations 17
8.3. City's Governmental Communications 18
9. TAXES 18
9.1. Title to Licensee's Equipment and Improvements 18
9.2. Taxes 18
9.3. Licensee's Tax and Assessment Obligations 19
9.4. Licensee's Right to Contest Taxes or Assessments 19
10. LIENS 19
11. INDEMNIFICATION 20
11.1. Licensee's General Indemnification Obligations 20
11.2. Licensee's Indemnification for Personnel Injuries 20
11.3. Licensee's Defense of the City 20
12. ENVIRONMENTAL PROVISIONS 21
12.1. Licensee's General Environmental Obligations 21
12.2. Hazardous Substances 21
Site Name: Trailblazer Park
Business Unit #: 831227
12.3. Licensee's Response to Hazardous Substance Release 21
12.4. Self Help 22
12.5. Licensee's Environmental Indemnification Obligations 22
12.6. Licensee's Liability for Hazardous Substance Release 23
13. INSURANCE 23
13.1. Licensee's Insurance Obligations 23
13.1.1. Required Endorsements 23
13.1.2. Claims-Made Policies 24
13.1.3. General Aggregate Limit 24
13.1.4. Insurer Qualifications 24
13.1.5. Certificates; Effective Dates 24
13.1.6. Self-Insurance 25
13.2. No Limitation on Indemnification Obligations 25
13.3. City's Termination Right 25
14. ASSIGNMENT; SUBLICENSE 25
14.1. Assignment 25
14.2. Sublicense (Collocation) 26
14.3. Continuing Obligation (Novation) 26
15. DEFAULT; REMEDIES 26
15.1. Defaults and Cure Periods 26
15.2. Sums Paid During Default 26
15.3. No Consequential Damages 26
15.4. No Personal Liability for City Officials, Employees or Agents 27
15.5. Cumulative Remedies 27
16. TERMINATION 27
16.1. Grounds for Termination 27
16.2. Early Termination Fee 28
17. REMOVAL AND RESTORATION 28
18. CONDEMNATION 28
18.1. Permanent Takings. 28
18.1.1. Termination and Award. 28
18.1.2. No Statutory Right to Terminate 29
18.2. Temporary Takings 29
19. DESTRUCTION 29
Site Name: Trailblazer Park
Business Unit #: 831227
20. NOTICES 29
21. BANKRUPTCY 30
22. SECURITY DEPOSIT 31
22.1. Amount 31
22.2. Application or Use 31
23. MISCELLANEOUS 32
23.1. Interpretation; Construction 32
23.2. Unenforceability; Severability 32
23.3. Time for Performance; Force Majeure 33
23.4. Integration; Entire Agreement 33
23.5. Successors and Assigns 33
23.6. Amendments or Modifications 33
23.7. Waivers 33
23.8. Governing Law; Venue; Attorneys' Fees 33
23.9. Government Claims Act 34
23.10. Public Records Act Disclosure 34
23.11. Estoppels 34
23.12. Brokers 35
23.13. Survival 35
23.14. Submission for Inspection; No Offer 35
23.15. Execution; Counterparts. 35
EXHIBIT A: Legal Description of the Property
EXHIBIT B: Depiction of License Area, Access Route, Utilities Route, Equipment and
Other Improvements
EXHIBIT C: As-Built Survey
iv
Site Name: Trailblazer Park
Business Unit #: 831227
TEMPORARY COMMUNICATIONS SITE LICENSE AGREEMENT
This Temporary Communications Site License Agreement (this "License") dated
______ , 2020 (the "Effective Date") is between the City of Carlsbad, a municipal
corporation of the State of California, (the "City") and Crown Castle Towers 06-2 LLC, a Delaware limited liability company, (the "Licensee").
BACKGROUND
A.WHEREAS, the City, in its proprietary capacity as a California municipal
corporation, owns or controls that certain real property commonly known as the
future Robertson Ranch Community Park site in the City of Carlsbad, County of
San Diego, State of California (APNs: 208-010-38-00, 208-010-39-00, and 208-010-42-00) (the "Property"), as legally described in Exhibit A attached hereto and
incorporated herein;
B.WHEREAS, Licensee constructs, installs, owns, operates and maintains wireless
communication facilities as its primary business;
C.WHEREAS, Licensee desires to license from the City certain ground space on the
Property (the "License Area") for the Permitted Use (as defined in Section 3.1
(Permitted Use; Equipment) in this License), together with additional non-exclusivespace for access and utilities, all as more particularly described and depicted in
Exhibit B attached hereto and incorporated herein, subject to modification as set
forth in Section 3.6;
D.WHEREAS, the City, in its proprietary capacity as a California municipalcorporation, desires to license to Licensee the License Area for the Permitted Use
on the terms and conditions in this License.
NOW, THEREFORE, for good, valuable and sufficient consideration received and
acknowledged, the City and Licensee agree as follows:
Site Name: Trailblazer Park Business Unit#: 831227
page 1 / 36
July 28
AGREEMENT
1. DEFINITIONS
"Access Route" means the non-exclusive license for physical ingress and egress over
the Property from Trailblazer Way to the License Area in the location shown on Exhibit B,
as may be amended by Exhibit C.
"Affiliate" means any person or entity, corporate or otherwise, that directly or indirectly,
through one or more intermediaries, Controls, is Controlled by or is under Common
Control with Licensee.
"Agent" means any agent, employee, officer, official, contractor, subcontractor and/or
representative of a party to this License in relation to the License Area.
"Approved Plans" means the particular locations and configurations of the Equipment
permitted under this License as shown in Exhibit B, as may be amended by Exhibit C.
"Assignment" means as follows: (a) a merger, acquisition, or other transfer of a
controlling interest in Licensee, voluntarily or by operation of Law; (b) Licensee's sale,
assignment, encumbrance, pledge, or other transfer of any part of its interest in or rights
with respect to the License Area; and (c) any action by Licensee to permit any portion of
the License Area to be occupied by anyone other than itself, including a sublicense.
"Bankruptcy Code" means the United States Bankruptcy Code, 11 U.S.C. §§ 101 et
seq., as may be amended or superseded.
"Best Management Practices" means all those environmental or operational standards
or guidelines for common and accepted practices appropriate for the business that
Licensee and its Agents or Invitees engage in on the Property and/or such guidelines as
have been articulated by pertinent trade associations, professional associations or
regulatory agencies.
"Broker" means any licensed real estate broker or other person who could claim a right
to a commission or finder's fee in connection with the license contemplated herein.
"Claim" means any and all liabilities, losses, costs, claims, judgments, settlements,
damages, liens, fines, penalties and expenses, whether direct or indirect.
"Common Control" means, for purposes related to Affiliate(s) in Section 14 (Assignment;
Sublicense), two entities that are both controlled by the same third entity.
"Control" means, for purposes related to Affiliate(s) in Section 14 (Assignment;
Sublicense), as follows: the right and power, directly or indirectly, to direct or cause the
direction of the management and policies of a person or business entity, corporation or
otherwise, through ownership or voting securities, by contract or otherwise.
page 2 / 36
Site Name: Trailblazer Park
Business Unit #: 831227
"Court" means San Diego County Superior Court.
"Environmental Costs" means any and all damages, fines, costs and fees that arise
from: (i) any violation of or material noncompliance with any applicable Environmental
Laws; (ii) any violation of or material noncompliance with any environmental provision in
this License; (iii) immediate response, remediation and restoration actions; (iv)
governmental oversight and participation; (v) actual fees and costs for project managers,
attorneys, legal assistants, engineers, consultants, accountants and experts, whether
employed with the damaged party or not; (vi) any diminution in value, loss or restriction
on use of the Property; and (vi) any damages, fines, costs or fees whether taxable as
costs or not, incurred before, at or after any administrative or judicial proceeding, appeal
or any other judicial review.
"Environmental Laws" means any and all Laws which govern materials, substances,
regulated wastes, emissions, pollutants, water, storm water, ground water, wellfield and
wellhead protection, cultural resources protection, animals or plants, noise or products
and relate to protection for health, safety or the environment and natural resources,
including land, sediments, water, groundwater and stormwater.
"Equipment" means a communications facility, including tower structures, equipment
shelters, cabinets, meter boards, utilities, antennas, antenna support structures and any
associated utility or equipment boxes, and battery backup, transmitters, receivers, radios,
amplifiers, ancillary fiber-optic cables, wiring and ancillary equipment for the transmission
and reception of radio communication signals for voice and other data transmission,
including the means and devices used to install Equipment at the License Area,
peripherals, and ancillary equipment and installations, including wiring, cabling, power
feeds and any approved signage attached to Equipment, and other things that are or may
be reasonably related to Licensee's communication facility as shown in Exhibit B attached
hereto and incorporated herein, as may be amended by Exhibit C.
"ETF" is an acronym for "early termination fee" and is defined in Section 16 (Termination).
"Governmental Approvals" means any governmental or regulatory licenses, permits
and other approvals necessary for Licensee to install, operate and maintain Equipment
on the License Area.
"Government Claims Act" means California Government Code §§ 810 et seq., as may
be amended or superseded.
"Hazardous Substance" means any and all substances, materials, pollutants,
contaminants or products defined as or designated as hazardous, toxic, radioactive,
dangerous or regulated wastes or materials or any other similar term in or under any
applicable Environmental Laws. The term "Hazardous Substance" also includes, but is
not limited to, (1) fuels, petroleum or petroleum-based products; or (2) any material or
substance defined as a "hazardous substance" or "pollutant" or "contaminant" in the
page 3 / 36
Site Name: Trailblazer Park
Business Unit #: 831227
Comprehensive Environmental Response, Compensation and Liability Act of 1980
(codified as 42 U.S.C. §§ 9601 et seq.) or California Health & Safety Code § 25316, as
both may be amended or superseded.
"Holdover Fee" means the increased fee assessed in the event that Licensee continues
to use or occupy the License Area after this License expires or terminates, and as is
defined in Section 4.2 (Holdover Term).
"Holdover Term" means the month-to-month license on the same terms and conditions
that this License automatically converts to in the event that Licensee continues to use or
occupy the License Area after this License expires or terminates, and as is defined in
Section 4.2 (Holdover Term).
"Impositions" means any and all taxes, assessments, charges, excises and exactions
whatsoever, and as is defined in Section 9.3 (Licensee's Tax and Assessment
Obligations).
"Indemnified Parties" means the City, its Agents, Invitees, employees and their
respective heirs, successors and assigns.
"Interference" means the same as defined by 47 C.F.R. § 2.1, as may be amended,
which defines the term as the effect of unwanted energy due to one or a combination of
emissions, radiations, or inductions upon reception in a radio communication system,
manifested by any performance degradation, misinterpretation or loss of information
which could be extracted in the absence of such unwanted energy.
"Invitee" means any client, customer, invitee, guest, tenant, subtenant, licensee, site
manager or assignee and sublicensee of a party to this License in relation to the License
Area.
"Laws" means all present and future statutes, ordinances, codes, orders, regulations and
implementing requirements and restrictions of federal, state, county and municipal
authorities, whether foreseen or unforeseen, ordinary as well as extraordinary, as
adopted or as amended at the time in question.
"License Area" means that certain ground space on the Property more particularly
described and depicted in Exhibit B attached hereto and incorporated herein, as may be
amended by Exhibit C.
"Permitted Use" means construct, install, operate, maintain, remove and repair the
Equipment, in certain locations and configurations to transmit and receive wireless
communications signals operated in compliance with all applicable Laws, and as is
defined in Section 3.1 (Permitted Use; Equipment).
"Release" means, with respect to any Hazardous Substance, any actual or imminent
discharging, disposing, dumping, emitting, emptying, escaping, injecting, jettisoning,
page 4 / 36
Site Name: Trailblazer Park
Business Unit #: 831227
leaching, leaking, pouring, pumping, releasing, or spilling on, under or about the License
Area, Access Route, Utilities Route or Property.
"Staging Area means certain space on the Property contiguous with the License Area
to the extent reasonably necessary to construct and/or install the Equipment that
Licensee may use on a temporary and non-exclusive basis, and as is defined in Section
3.8.6 (Staging Area).
"Tests" means tests, surveys and other reasonably necessary inspections, and as is
defined in Section 3.5 (Tests and Surveys).
"Utilities Route" means the non-exclusive license for utility installation on, under or over
the Property from Trailblazer Way to the License Area in the location shown on Exhibit B,
as may be amended by Exhibit C.
2. LICENSE AREA
2.1. Grant and Scope
Subject to the terms and conditions in this License, the City licenses to Licensee exclusive
use of the License Area, together with a non-exclusive right to use the Access Route and
Utilities Route, for only the Permitted Use under this License and for no other purpose
whatsoever without the City's prior written consent, which the City may withhold in its sole
and absolute discretion for any or no reason. Licensee acknowledges that this License
does not grant Licensee any ownership interest in the Property in whole or in part. This
License and all Licensee's rights and/or privileges to use the License Area will remain
subject and subordinate to all leases, subleases, licenses, sublicenses, easements,
reservations, covenants, conditions, restrictions and exceptions, whether recorded or
unrecorded, that exist prior to the Effective Date.
2.2. License Area Condition
Except as may be specifically and explicitly provided otherwise in this License, the City
makes no warranties or representations whatsoever about the Property's condition,
fitness or suitability for Licensee's use. Licensee expressly warrants and represents to
the City that Licensee or its agent inspected the Property and the License Area, and any
environmental or other conditions on the Property and the License Area, and accepts the
License Area in its present "AS-IS" and "WITH ALL FAULTS" condition. Licensee
expressly acknowledges and agrees that neither the City nor its Agents made any
warranties, representations or promises to Licensee or its Agents about the condition of
the Property, in whole or in part, the condition of the License Area, in whole or in part, or
the condition of any aspect about the Property or License Area including without limitation
any structures or improvements, utilities or Hazardous Substances.
page 5 / 36
Site Name: Trailblazer Park
Business Unit #: 831227
2.3. Certified Access Specialist Disclosure
Pursuant to California Civil Code § 1938, and to the extent applicable to this License, the
City expressly advises Licensee, and Licensee expressly acknowledges, that a Certified
Access Specialist (as defined in California Civil Code § 55.52) has not inspected the
License Area in whole or in part to determine whether it meets all applicable construction-
related accessibility requirements.
2.4. No Right to Record
This License does not create or convey any real property ownership right, title or interest
in the License Area, in whole or in part, except as expressly provided otherwise herein.
Licensee shall not have the right to record a memorandum of this License.
3. USE
3.1. Permitted Use; Equipment
During the term of this License, Licensee may use the License Area to construct, install,
operate, maintain, remove and repair the Equipment, in the locations and configurations
more particularly described in Exhibit B attached hereto and incorporated herein, as may
be amended by Exhibit C (the "Approved Plans"), to transmit and receive wireless
communications signals operated in compliance with all applicable Laws (the "Permitted
Use"), for purposes reasonably necessary to accomplish the Permitted Use, but for no
other purpose whatsoever without the City's prior written consent, which the City may
withhold for any or no reason in the City's sole discretion.
3.2. Prohibited Uses
Licensee shall not use the License Area in whole or in part in any unlawful manner or for
any illegal purpose. In addition, Licensee shall not use the License Area in whole or in
part in any manner that materially interferes with the maintenance or operation of the
City's park, or constitutes a nuisance under applicable Laws. Licensee shall take all
reasonable precautions to eliminate any such nuisances or hazards in connection with its
uses and activities on or about the License Area. Licensee acknowledges and agrees
that its rights under this License do not authorize Licensee to erect, post or maintain, or
permit others to erect, post or maintain, any signs, notices, graphics or advertisements
whatsoever on the License Area, except signs that may be required under applicable
Laws.
3.3. Access
3.3.1. Licensee Access
Except as may be specifically provided otherwise in this License, Licensee may use the
Access Route, twenty-four (24) hours per day and seven (7) days per week, for overland
page 6 / 36
Site Name: Trailblazer Park
Business Unit #: 831227
vehicular and pedestrian ingress and egress between the License Area and Trailblazer
Way for purposes reasonably related to the Permitted Use. The City may, upon thirty (30)
days' written notice to Licensee, impose reasonable rules and regulations on the manner
in which Licensee uses the Access Route that do not materially alter or impair Licensee's
access to the License Area or interfere with Licensee's Permitted Use, as follows: (1) for
the locations in which Licensee, its Agents, Invitees and other personnel may park
vehicles and equipment on the Access Route; (2) necessary to secure the Property; (3)
necessary to ensure access to the Property for all users authorized by the City; and (4)
necessary to maintain the safety of the traveling public on and around the Property. The
City will issue to Licensee, and Licensee shall safeguard and not share with others, any
keys or codes necessary to access the License Area via the Access Route, except for
Licensee's authorized employees, agents, contractors, sublessees, licensees and their
authorized employees, agents and contractors.
3.3.2. Entry and Inspection
The City and its Agents may, after seventy-two (72) hours' written notice to Licensee and
with an escort designated by Licensee, enter onto and inspect the License Area. In the
event of emergency, where the City cannot reasonably comply with the foregoing notice
requirement, the City shall have the right to access the License Area and the City shall,
within forty-eight (48) hours following actual notice of emergency access, inform Licensee
of (i) the date and time of emergency access and (ii) the nature of the event requiring
emergency access. If, under such emergency circumstances, Licensee is not present to
open the License Area, the City may enter by any means without liability to Licensee
except for failure to exercise reasonable care under the circumstances. The City's actions
under this Section 3.3.2 will not constitute an actual or constructive eviction or relieve
Licensee of any obligation with respect to making any repair, replacement, or
improvement or complying with any Laws. No provision of this Section 3.3.2 shall be
construed as obligating the City to perform any maintenance, repairs, alterations or
improvements.
3.4. Utilities
Licensee shall be solely responsible to secure its own utilities for its Permitted Use and
will not be permitted to submeter from any electrical service provided to the City. Licensee
shall timely pay when due all charges for all utilities furnished to the Equipment. The City
shall reasonably cooperate, at no cost to the City, with Licensee's efforts to secure such
utilities for Licensee's Permitted Use.
3.5. Tests and Surveys
At any time throughout the Term, Licensee will have the right, but not the obligation, to
conduct necessary tests, surveys and other reasonably necessary inspections
(collectively "Tests") on the License Area, Access Route and/or Utilities Route to
determine suitability for the Permitted Use; provided that (1) Licensee has first furnished
the City with all up-to-date insurance documentation required in Section 13 (Insurance)
page 7 / 36
Site Name: Trailblazer Park
Business Unit #: 831227
under this License; (2) Licensee complies with all the City's reasonable rules and
regulations necessary to avoid undue interference with other authorized activities or
operations on the Property; and (3) Licensee shall promptly return any areas on the
Property affected by any Tests to the condition that existed immediately prior to such
Tests, reasonable wear and tear excepted.
3.6. Modifications; Alterations
Except as expressly provided otherwise in this License, Licensee may not modify or alter
the Equipment or the License Area in any manner other than as shown on the Approved
Plans without the City's prior written consent, which the City will not unreasonably
withhold, condition or delay ("City's Consent"). Following completion of the initial
construction of the wireless communications facility on the License Area, Licensee shall
provide the City with a copy of an "as-built" survey, which shall depict and identify the
boundaries of the License Area, the Access Route, Utilities Route, Equipment and other
improvements, and replace and supersede the depiction and description attached hereto
as Exhibit B upon City's Consent. The "as-built" survey shall be deemed to be
incorporated into this License as Exhibit C even if not physically affixed hereto. The
description of the License Area, Access Route, Utilities Route, Equipment and other
improvements set forth in Exhibit C shall control in the event of discrepancies between
Exhibit B and Exhibit C. After Licensee completes any approved modification or
alteration, Licensee shall produce or cause to be produced a revised Exhibit C that shows
all Equipment and other improvements in their current, as-built location and configuration,
which revised Exhibit C will not become effective until both parties sign each page thereto.
3.7. Equipment Removal; Replacements; Routine Maintenance
At any time after the Effective Date, Licensee will have the right to remove, repair or
replace any Equipment with "like-for-like" or substantially similar and technologically
equivalent Equipment and perform routine maintenance without the City's prior consent;
provided, however, that Licensee must provide the City notice within thirty (30) days after
any removal, repair or replacement work occurs, excluding routine maintenance and
repairs.
3.8. Construction and Installation Activities
3.8.1. Structural Review
Licensee may not commence any construction or installation activities on the Property
that involve new structures or any material increased loading on existing structures
without prior written approval from the City Engineer or the City Engineer's designee.
Licensee shall submit its written request for approval together with complete engineering
plans, specifications and a structural analysis report, all in a form reasonably acceptable
to the City Engineer. The City Engineer may (but is not obligated to) review all or part of
such materials and may reasonably approve or reject them for cause.
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Site Name: Trailblazer Park
Business Unit #: 831227
3.8.2. Performance Standards
Licensee, its Agents, employees, contractors and subcontractors shall perform all work
on the Property and License Area in a good, safe and workmanlike manner, in strict
compliance with the Approved Plans and all applicable Laws. All installed Equipment
must be high quality, safe, fire resistant, and approved by the City if required by any
applicable Laws.
3.8.3. Licensee's Contractors
Licensee shall use only qualified and trained persons and appropriately licensed
contractors for all work performed on or about the License Area. At least ten (10) business
days before any work commences on or about the License Area that requires the City's
prior approval herein, Licensee shall provide notice to the City with: (1) a schedule with
all activities to be performed in connection with the work; and (2) a list with all the names,
contractor's license numbers and business addresses for all contractors who will perform
the work.
3.8.4. Labor and Material Costs
Licensee shall be responsible for all direct and indirect costs (labor, materials, and
overhead) in connection with designing, purchasing and installing all Equipment in
accordance with the Approved Plans and all applicable Laws. Licensee shall timely pay
for all labor, materials, Equipment and all professional services related to the Permitted
Use or furnished to the License Area at Licensee's direction or for Licensee's benefit.
3.8.5. Coordination; Supervision
Licensee must coordinate all its installation, construction and other work on or about the
License Area with the City so as to avoid any material interference (physical, electronic
or otherwise) with any existing utilities, substructures, facilities, the City or the City's
municipal functions and/or operations. The City may, but will not be obligated to,
supervise any construction activities in connection with this License that require the City's
prior review and approval.
3.8.6. Staging Area
For no more than ninety (90) continuous days after Licensee commences construction
work, Licensee may use, on a temporary and non-exclusive basis, certain space on the
Property contiguous with the License Area to the extent reasonably necessary to
construct and/or install the Equipment and subject to the City's prior approval not to be
unreasonably withheld, conditioned or delayed ("Staging Area"). The City may withhold
or revoke its consent to allow Licensee to use any Staging Area when Licensee's use
materially interferes with other persons or entities authorized to use the Property.
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Site Name: Trailblazer Park
Business Unit #: 831227
3.8.7. As-Built Site Plans
Within ninety (90) days after Licensee completes any construction work on the Property
that requires the City's prior review and approval herein, Licensee shall furnish the City
with as-built site plans that depict all the Equipment and any improvements in the then-
current location and configuration. Licensee shall also provide such as-built site plans in
a native or portable document format.
3.9. Mineral and Water Rights
3.9.1. General
The City reserves the right to install, lay, construct, maintain, repair and operate such
sanitary sewers, drains, stormwater sewers, pipelines, manholes and connections; water,
oil, and gas pipelines; telephone and telegraph power lines; and the appliances and
appurtenances necessary or convenient in connection therewith, in, over, upon, through,
across and along the License Area, and any part thereof, and to enter the License Area
for any and all such purposes. The City also reserves the right to grant franchises,
easements, rights-of-way and permits in, over, upon, through, across and along any and
all portions of the License Area for all such purposes described in the preceding sentence.
The City shall not exercise any rights reserved under this Section 3.9.1 so as to interfere
unreasonably with Licensee's operations or access under this License or to impair the
security of any secured creditor of Licensee. The City shall provide seventy-two (72)
hours advance notice to Licensee to access the License Area pursuant to this Section,
whether by the City or a third party, and the City or third party shall be accompanied by a
representative of Licensee. The City agrees that rights granted to third parties by reason
of this Section 3.9.1 must contain provisions that the surface of the License Area will be
restored as nearly as practicable to its original condition upon the completion of any
construction.
3.9.2. Mineral Rights
The City reserves to itself, its successors and assigns, and excepts from the License
Area, any and all oil, oil rights, petroleum, minerals, mineral rights, natural gas rights, and
other hydrocarbon substances by any name known whatsoever, geothermal resources
(as defined in California Public Resources Code § 6903), and all products derived from
any of the foregoing, that may be within or under the land, together with the perpetual
right of drilling, mining, exploring, prospecting and operating therefore and storing in and
removing the same from the License Area or any other land, including the right to
whipstock or directionally drill and mine from lands other than those conveyed hereby, oil
or gas wells, tunnels and shafts into, through or across the subsurface of the License
Area, and to bottom such whipstocked or directionally drilled wells, tunnels and shafts
under and beneath or beyond the exterior limits thereof, and to re-drill, re-tunnel, equip,
maintain, repair, deepen and operate any such wells or mines; without, however, the right
to enter, drill or re-drill, tunnel or re-tunnel, equip, maintain, repair, mine, store, explore,
prospect, remove, whipstock or directionally drill or to bottom and/or operate on, from or
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Site Name: Trailblazer Park
Business Unit #: 831227
through the surface or the upper 500 feet of the subsurface of the License Area. The City
further reserves to itself, its successors and assigns and exempts from the License Area,
any rights to subsurface storage of brine, carbon, water or other substances. The City
further reserves to itself, its successors and assigns, the exclusive right to grant and
transfer all or a portion of the rights reserved in this Section 3.9.2. All rights contemplated
by this Section 3.9.2 shall be subject to Section 3.9.3, below.
3.9.3. Notice and Relocation
In the event that the City determines in good faith that the License Area is needed by the
City for the purposes contemplated by Section 3.9.2, above, following the expiration of
the Initial Term, the City shall have the one-time right to require the relocation of the
Equipment, or any part thereof, to an alternate ground location ("Relocation Right")
provided that (i) the relocation shall be performed exclusively by Licensee or its agents at
Licensee's sole cost and expense, (ii) the relocation shall not result in any interruption of
the communications services provided by Licensee to its customers, including, but not
limited to, Licensee's continuous access, maintenance and operation of the Equipment,
until such time that all licensees and sublicensees are successfully relocated, and (iii) the
relocation shall not unreasonably impair, or in any manner unreasonably alter, the quality
of communications services provided by Licensee to its customers on and from the
Relocation Site as defined below.
3.9.3.1. Relocation Process
To exercise the Relocation Right, the City shall provide written notice to Licensee not less
than twenty-four (24) months prior to the relocation date and shall propose an alternate
site to which Licensee may relocate the Equipment ("Alternate Site Location"). Licensee
shall have sixty (60) days from the date of the notice to evaluate the Alternate Site
Location, including, but not limited to, conducting tests to determine the technological
feasibility of the Alternate Site Location and obtaining written approval of all wireless
telecommunications providers on the License Area. If Licensee fails to approve the
Alternate Site Location in writing within such sixty (60) day period, Licensee will be
deemed to have not approved such Alternate Site Location. If Licensee does not approve
such Alternate Site Location, the City may then propose another Alternate Site Location
by providing notice to Licensee in the manner set forth above; provided, however, that
the City shall not have to give Licensee 24-months' notice for a subsequent Alternative
Site Location. Upon Licensee's approval of any proposed Alternate Site Location, both
parties will enter into a written agreement concerning the relocation of the Equipment
("Relocation Agreement") to the Alternate Site Location ("Relocation Site"). The City shall
undertake reasonable efforts to provide an Alternate Site Location reasonably acceptable
to Licensee. If no Alternate Site Location is available or if Licensee does not approve an
Alternate Site Location, the City or Licensee may, upon twenty-four (24) months' written
notice, terminate this License in accordance with the notice requirements set forth herein.
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Site Name: Trailblazer Park
Business Unit #: 831227
3.9.3.2. No Additional Terms
Upon relocation of the Equipment, all references to the License Area in this License shall
be deemed to refer to the Relocation Site (including any access and utility
easements). The Relocation Site shall be surveyed by a licensed surveyor at the sole
cost of Licensee, in which event such survey shall replace and supersede the description
of the License Area contained in Exhibit B to this License, as may be amended by Exhibit
C. Unless otherwise provided in the Relocation Agreement or any other written
agreement of the parties, the relocation of the Equipment shall not affect, alter, modify or
otherwise change any of the terms and conditions of this License.
3.9.3.3. Relocation Period
The "Relocation Period" shall mean that period of time commencing on the date Licensee
has received all required permits and approvals for the Relocation Site and ending twelve
(12) months thereafter. The relocation of the Equipment to the Relocation Site shall be
substantially completed within the Relocation Period, to the extent reasonably feasible.
The then-current License Fee shall be reduced by one hundred percent (100%) during
the Relocation Period and the term of this License shall extend by a period of time
equivalent to the Relocation Period.
4. TERM
4.1. Initial Term; Renewal Term(s)
The initial term under this License (the "Initial Term") will commence on the Effective
Date and will automatically expire three (3) years from the Effective Date, unless earlier
terminated in accordance with this License. After the Initial Term expires, this License will
renew for three (3) additional 1-year terms (each a "Renewal Term") upon written
approval from the City Manager, which approval shall not be unreasonably withheld,
conditioned or delayed unless Licensee irrevocably notifies the City that Licensee does
not intend to renew this License within ninety (90) days before the expiration of the Initial
Term or any Renewal Term. (The parties refer to the Initial Term and any applicable
Renewal Term(s) as the "Term".)
4.2. Holdover Term
Licensee will have no right or privilege whatsoever to use or occupy the License Area in
any manner or for any purpose after this License expires or terminates. In the event that
Licensee continues to use or occupy the License Area after this License expires or
terminates, this License will automatically convert to a month-to-month license on the
same terms and conditions (the "Holdover Term"), except that (1) the License Fee will
be automatically increased to one hundred fifty percent (150%) over the License Fee
payable in the immediately previous year (the "Holdover Fee"), unless the City and
Licensee are negotiating in good faith to extend the term of this License or enter into a
new agreement, then the Holdover Fee will be reduced to one hundred twenty-five
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Site Name: Trailblazer Park
Business Unit #: 831227
percent (125%) for the first twelve (12) months following expiration or earlier termination
of this License, and will continue to increase in accordance with Section 5.2 (Annual
Adjustments); and (2) either the City or Licensee may terminate such license on thirty
(30) days' written notice for any or no reason.
4.3. Right of First License
If at any time during the Term of this License, the City develops the Property for a use
compatible with communications towers, antennas or equipment and the City receives an•
offer to enter into a license with a third party for any portion of the Property or an offer to
create any other contractual right for all or a portion of the Property for the purpose of
locating communications tower(s), antenna(s) or equipment thereon, the City shall
provide written notice to Licensee ("City's Notice"), and Licensee shall have a right of
first refusal to license the Property on the same terms and conditions in the offer,
excluding any terms or conditions that are (i) not imposed in good faith; or (ii) directly or
indirectly designed to defeat or undermine Licensee's possessory or economic interest in
the Property (the "Option"). City's Notice shall include the third party's name, the
consideration to be paid for the proposed license or contract, the other terms and
conditions of the offer, the due diligence period, the proposed closing date and, if a portion
of the Property is to be licensed, a description of said portion. If the City's Notice shall
provide for a due diligence period of less than sixty (60) days, then the due diligence
period shall be extended to be sixty (60) days from exercise of the right of first refusal. If
Licensee does not exercise its right of first refusal by written notice to the City given within
thirty (30) days after City's Notice, the City may license the property described in the City's
Notice in accordance with the City's Notice. The right of first refusal granted herein is a
covenant running with the Property and shall not be extinguished by Licensee's non-
exercise of such right on one or more occasions during the Term of this License. In the
event Licensee licenses use of a portion of the Property pursuant to this Section, the
Option shall extinguish and Licensee shall not be entitled to the right of first refusal for
any future offers. Licensee shall have the right, at its sole discretion, to assign the right
of first refusal to an Affiliate (as defined in this License), either separate from an
assignment of this License or as part of an assignment of this License. Such assignment
may occur either prior to or after Licensee's receipt of City's Notice and the assignment
shall be effective upon written notice to the City.
LICENSE FEE; OTHER PAYMENTS TO THE DISTRICT
5.1. Base License Fee
Commencing on the date of issuance of Licensee's building permit ("Commencement
Date"), Licensee shall pay the City Three Thousand Nine Hundred Sixty-Five Dollars
($3,965.00) (the "License Fee") each month, in advance, without any prior demand,
setoff, deduction or counterclaim for any reason, unless otherwise allowed pursuant to
this License or agreed to in writing by the City and Licensee. Licensee shall pay to
Licensor the first License Fee payment within sixty (60) days of the Commencement Date.
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Site Name: Trailblazer Park
Business Unit #: 831227
5.2. Annual Adjustments
On the anniversary of the Commencement Date and each year throughout the Term
thereafter, the License Fee will be automatically increased by three percent (3%) over the
License Fee payable in the immediately previous year.
5.3 [Intentionally Omitted]
5.4. Late Charges
In the event that Licensee fails to pay any License Fee or any other amount payable to
the City within ten (10) days after such amounts are due and unpaid, such amounts will
be subject to a late charge equal to six percent (6%) of unpaid amounts. Licensee and
the City agree that the late charge is a reasonable estimate of the amount that the
lateness of the License Fee will cost the City.
5.5. Interest
Any License Fees and all other amounts payable to the City other than late charges will
bear interest at ten percent (10%) per annum or the highest rate permitted by Law
(whichever is greater) from the due date when not paid within ten (10) days after due and
payable to the City. Any sums received shall be first applied towards any interest, then to
the late charge and lastly to principle amount owed. Any interest or late charge payments
will not alone excuse or cure any default by Licensee.
5.6. Park Improvement Fees
Within sixty (60) days after the parties fully execute this License, Licensee shall pay to
the City a nonrefundable park improvement fee equal to Ten Thousand and 00/100
Dollars ($10,000.00) to cover the City's costs to review and execute this License. Within
sixty (60) days after the Commencement Date, Licensee shall pay to the City an additional
nonrefundable park improvement fee equal to Forty Thousand and 00/100 Dollars
($40,000.00) for park improvements ("Second Park Improvement Fee"). In the event that
the Commencement Date does not occur for any reason, Licensee shall have no
obligation to pay the Second Park Improvement Fee to the City. In addition, for any
approval under this License for which the City's prior consent is required, Licensee shall
reimburse the City for its reasonable costs directly related to the City's review and
consideration of the request within sixty (60) days of Licensee's receipt of documentation
reasonably evidencing such costs. In no event shall such reimbursement exceed Five
Hundred and 00/100 Dollars ($500.00).
5.7. Flat Fee Based Revenue Share
In addition to the License Fee to be paid by Licensee to the City pursuant to this License,
if Licensee subleases, licenses or grants a similar right of use or occupancy in the License
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Site Name: Trailblazer Park
Business Unit #: 831227
Area (each a "Sublicense") to an unaffiliated third party collocator (each a "Co!locator"),
Licensee agrees to pay to the City Five Hundred Fifty and 00/100 Dollars ($550.00) per
month or as escalated at the time of collocation in accordance with the annual escalation
set forth in Section 5.2 of this License ("Sublicense Fee") for so long as such Sublicense
is in effect. For illustrative purposes only, the monthly Sublicense Fee per Sublicense
shall be: $550.00 during the first year of the Term; $566.50 during the second year of the
Term; $583.50 during the third year of the Term; $601.00 during the fourth year of the
Term; $619.03 during the fifth year of the Term; and $637.60 during the sixth year. The
first payment of the Sublicense Fee shall be due on the first day of the month following
the commencement date of the applicable agreement with such Collocator, and each
subsequent payment shall be due on the first day of each month thereafter. If any such
agreement with a Co!locator expires or terminates for any reason, Licensee shall no
longer be obligated to pay the Sublicense Fee for such Sublicense. Licensee shall have
sole discretion as to whether, and on what terms, to sublease, license or otherwise allow
occupancy of the License Area and there shall be no express or implied obligation for
Licensee to do so. Notwithstanding the foregoing, the parties agree that Licensee's
obligation to pay a Sublicense Fee to the City applies only to the second and subsequent
Collocators. No Sublicense Fee will be paid to the City in the event that there are one (1)
or fewer total Collocators on the License Area.
5.8. Access Route Repair
Throughout the Term, and in addition to the License Fee and any other sums paid by
Licensee to the City in connection with this License, Licensee shall repair, at Licensee's
sole cost and expense, any surface or other portion of the Access Route that is damaged
by or during Licensee's access to the License Area to the condition immediately prior to
such damage. In the event Licensee fails to make such repairs, the City may demand that
Licensee reimburse the City within sixty (60) days after the City tenders to Licensee a
reasonably detailed statement with reasonable supporting documentation evidencing the
City's reasonable costs and expenses for such repair. In the event that Licensee objects
to any expense on such statement, Licensee will be permitted to reasonably inspect any
invoices and/or receipts directly related to the disputed expenses so long as Licensee
first pays the full amount under protest. In the event such dispute is resolved in favor of
Licensee, the City shall reimburse Licensee such amounts paid under protest to the City
to the extent resolved in favor of Licensee.
5.9. Payment Procedures
Licensee shall deliver all payments due under this License to 1635 Faraday Ave.,
Carlsbad, CA 92008. The designated place of payment may be changed from time-to-
time upon written notice. Payments must be made by check payable to the City of
Carlsbad. No payment by Licensee or receipt by the City of a lesser amount than payment
due will be deemed to be other than a payment made on account for the total payment
due, nor will any endorsement or statement on any check or any letter accompanying any
check or payment be deemed an accord and satisfaction. The City's acceptance of such
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Site Name: Trailblazer Park
Business Unit #: 831227
checks or payment will be without prejudice to the City's right to recover the balance of
the amount due or pursue any other remedy in this License.
6. GOVERNMENTAL APPROVALS
6.1. Proprietary Capacity Acknowledgment
The City and Licensee expressly acknowledge and agree the City enters this License
solely in its proprietary capacity as the owner or controller of the Property and not in its
regulatory capacity as a local public agency. Licensee acknowledges and agrees that any
federal or state Laws applicable to the City in its regulatory capacity will not be applicable
to the City in its proprietary capacity and Licensee will not seek to have such Laws applied
to the City or any approval, disapproval, act or failure to act in connection with this
License. Licensee further acknowledges and agrees that (1) only the terms and conditions
in this License will govern the criteria and timeframes for the City's decisions or actions
in its proprietary capacity in response to Licensee's requests for approvals in connection
with this License; (2) any approval or disapproval the City may issue in its proprietary
capacity in connection with this License will not be deemed to be an approval or
disapproval the City may be required to issue in its regulatory capacity; and (3) any
approval or disapproval the City may issue in its proprietary capacity will not give
preference to Licensee or Licensee's applications over other persons or applications in
any regulatory proceeding solely based on this proprietary relationship.
6.2. Permits and Other Governmental Approvals
Licensee shall not commence any new work at the License Area until Licensee obtains
all necessary Governmental Approvals, which includes without limitation a conditional use
permit, grading permit, building permit, and/or any other permit obtained through any
other governmental agency with jurisdiction over the Property or the Equipment, and
tenders full and complete copies for each Governmental Approval to the City. Subject to
the provisions and limitations in Section 6.1 (Proprietary Capacity Acknowledgment), and
only to the extent permissible under applicable Laws, the City, in its proprietary capacity
as the owner and licensor of the Property, will reasonably cooperate with Licensee's
efforts to obtain and maintain all necessary Governmental Approvals.
7. MAINTENANCE
7.1. Licensee's Maintenance Obligations
At all times throughout the Term, Licensee shall maintain, repair and secure its Equipment
and all other personal property and improvements brought onto the Property in a
reasonably good, orderly and safe condition. Licensee shall keep the License Area free
of debris, graffiti and any other dangerous, noxious or offensive condition which would
create a hazard or undue vibration, heat, noise or interference, and shall correct any such
conditions within forty-eight (48) hours after notice. Licensee shall post, and at all times
maintain in good condition, a sign on the License Area, in a location reasonably
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Site Name: Trailblazer Park
Business Unit #: 831227
acceptable to both the City and Licensee, that contains (1) the site operator name; (2) the
site identification or reference number that corresponds with this facility; and (3) a working
telephone number that connects to a live person that can exert power-down control over
the Equipment.
7.2. City's Maintenance Obligations
The City shall not be responsible for repairs to or maintenance of the License Area or
Staging Area while being used by Licensee, or Equipment, or for any associated costs
except to the extent caused by the intentional misconduct or negligent acts or omissions
of City or its Agents. The City shall maintain, at its sole expense, the Access Route in a
manner sufficient to allow access, weather and seasonal conditions permitting. For
Access Route maintenance purposes, the City may assess Licensee any reasonable
Access Route maintenance fees pursuant to Section 5 above. Licensee acknowledges
that the Access Route as currently constructed and maintained is sufficient to provide it
with access. The City, under no circumstances, shall be required to expand or enlarge
the Access Route. The Access Route may be altered in design or location by the City
provided that the alteration does not materially impair Licensee's ability to access the
License Area. If Licensee causes any damage to the Access Route, Licensee shall
promptly repair same at its sole expense in accordance with Section 5.8 of this License.
8. INTERFERENCE
8.1. Licensee's Interference Obligations
Licensee shall not operate the Equipment, cause or allow others to operate the
Equipment or use the License Area in a manner that causes Interference with other
communication transmission or reception equipment lawfully used by the City, its Agents
or any third parties authorized by the City to use the Property that predate this License.
Any such Interference will be deemed a default under this License and, after Licensee
receives notice that such Interference exists, Licensee will be responsible to promptly
eliminate any such Interference at no cost to the City. The City agrees to reasonably
cooperate with Licensee's efforts to locate the Interference source. In the event that
Licensee does not promptly cure such Interference, the parties acknowledge that
continued Interference with communication transmission or reception equipment lawfully
used by the City, its Agents or any third parties authorized by the City to use the Property
may result in irreparable harm and, therefore, the City will have the right to bring an action
against Licensee to enjoin such Interference or terminate this License, subject to
applicable cure periods.
8.2. City's Interference Obligations
The City shall not operate communications equipment on the Property, or cause or allow
any third parties authorized by the City to use the Property to operate communications
equipment on the Property, in a manner that causes Interference with other
communication transmission or reception equipment lawfully used by Licensee, its Agents
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Site Name: Trailblazer Park
Business Unit #: 831227
or Invitees. Any such Interference will be deemed a default under this License and, after
the City receives notice that such Interference exists, the City, at no cost to Licensee, will
be responsible to eliminate such Interference within seventy-two (72) hours or as soon
thereafter as is reasonably practicable. Licensee agrees to reasonably cooperate with the
City's efforts to locate the Interference source. In the event that the City does not promptly
cure such Interference, the parties acknowledge that continued Interference with
communication transmission or reception equipment lawfully used by Licensee, its Agents
or Invitees may result in irreparable harm and, therefore, Licensee will have the right to
bring an action to enjoin such Interference or terminate this License, subject to applicable
cure periods. Nothing in this Section 8.2 is intended to limit, prohibit or enjoin the City
from entering into any agreements with any third parties for uses on the Property similar
to the Permitted Use.
8.3. City's Governmental Communications
Licensee acknowledges that the City uses communications equipment on the Property in
connection with its governmental, regulatory and/or operational functions and that such
equipment and/or the frequencies on which such equipment operates may change from
time to time. Notwithstanding anything in this License to the contrary, any temporary
Interference with Licensee's operations or Equipment caused by any communications
equipment used during an emergency by the City in its capacity as a local public agency
in connection with its governmental or regulatory functions will not entitle Licensee to
terminate this License, but shall entitle Licensee to bring an action to enjoin such
Interference.
9. TAXES
9.1. Title to Licensee's Equipment and Improvements
All Equipment and other improvements constructed, installed or placed on the License
Area by Licensee or at Licensee's request or direction will be and at all times remain
Licensee's personal property and will not be deemed fixtures or real property for any
purpose, whether such objects would be deemed fixtures or real property under
applicable Laws or not.
9.2. Taxes
Licensee understands and acknowledges that (1) Licensee is responsible for all property
taxes imposed as a result of the use of the Property by Licensee; and (2) this License
may subject Licensee to certain taxes under California Revenue and Taxation Code §
107.6, as may be amended or superseded, and agrees it is solely responsible for the
payment of these taxes.
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Site Name: Trailblazer Park
Business Unit #: 831227
9.3. Licensee's Tax and Assessment Obligations
Licensee agrees to pay when due and prior to delinquency any and all taxes,
assessments, charges, excises and exactions pursuant to Section 9.2 (collectively,
"Impositions"). Licensee shall not allow or suffer any lien for any Impositions to be
imposed on any portion of the Property. In the event that the City receives any Imposition
notices on or in connection with the License Area or Equipment, the City shall promptly
(but in no event later than 30 calendar days after receipt) forward the same, together with
reasonably sufficient written documentation evidencing any increases in the taxable or
assessable amount attributable to Licensee's use of the Property.
9.4. Licensee's Right to Contest Taxes or Assessments
Licensee will have the right to contest any Impositions that Licensee disputes in good
faith, so long as no lien attaches to the Property and Licensee complies with any bond,
deposit, collateral or other requirements under applicable Law.
10. LIENS
Licensee shall keep the License Area free and clear from any and all liens or other
impositions in connection with any work performed, material furnished or obligations
incurred by or for Licensee. Licensee will inform all contractors and material suppliers that
provide any work, service, equipment or material to Licensee in connection with the
License Area that the License Area is public property not subject to any mechanics' liens
or stop notices. In the event that any Licensee contractor or material supplier files any
lien or imposition that attaches to the License Area, Licensee shall promptly (but in no
case later than thirty (30) days after discovery) cause such lien or imposition to be
released. However, if Licensee shall in good faith contest the validity of any such claim,
lien, or demand, then Licensee shall, at its expense, defend itself and the City against
same and shall pay and satisfy any settlement or adverse judgment that may be entered
thereupon prior to the execution thereof. In the event of any such contest, Licensee shall
provide the City with a security bond in a form and amount the City deems sufficient to
allow the lien of record to be discharged as a matter of law. In the event that Licensee
does not cause such lien or imposition to be released within the thirty (30) day period or
provide the City with a security bond, the City will have the right, but not the obligation, to
cause such lien or imposition to be released in any manner the City deems proper, which
includes without limitation payment to the lienholder, with prior written notice to Licensee.
Licensee shall reimburse the City for all reasonable costs and expenses incurred to cause
such lien or imposition to be released (which includes without limitation reasonable
attorneys' fees) within sixty (60) days after Licensee receives a written demand from the
City together with reasonable documentation to support such costs and expenses.
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Site Name: Trailblazer Park
Business Unit #: 831227
11. INDEMNIFICATION
11.1. Licensee's General Indemnification Obligations
Licensee, for itself and its successors and assigns, shall indemnify, defend and hold the
Indemnified Parties harmless from and against any and all Claims incurred in connection
with or arising in whole or in part from: (1) death or personal injury to any person or
property damage or other loss that occurred on or about the License Area or arises in
connection with Licensee's, its Agents' or Invitees' authorized or unauthorized uses on or
about the License Area; (2) any failure or refusal by Licensee to observe or perform any
term, covenant or condition in this License to be observed or performed on Licensee's
part; (3) Licensee's, its Agents' or Invitees' uses or occupancy, or manner of use or
occupancy, of the License Area; (4) any unlawful exposure to RF emissions or EMFs from
Licensee's Equipment or uses on or about the License Area; (5) the License Area
condition or any occurrence on or about the License Area attributable to the events
described in clauses (1), (2), (3) or (4) in this Section 11; or (6) any act, omission or
negligence of Licensee, its Agents or Invitees in, on or about the License Area; all whether
liability without fault is imposed or sought to be imposed on the Indemnified Parties, but
except to the extent that such Claim(s) arise from the Indemnified Parties' willful
misconduct or negligence. Licensee's obligations under this Section 11 include, without
limitation, reasonable fees, costs and expenses for attorneys, consultants and experts,
and the City's costs to investigate any Claim. Licensee specifically acknowledges and
agrees that it has an independent obligation to defend the Indemnified Parties from any
Claim that actually falls within this Section 11, and which obligation arises at the time the
Indemnified Parties tender such Claim to Licensee and continues at all times until such
Claim's final resolution. Licensee's obligations under this Section 11 will survive the
expiration or termination of this License.
11.2. Licensee's Indemnification for Personnel Injuries
Licensee acknowledges that (1) the City has delegated to Licensee control over the
License Area; and (2) the City is not a co-employer of any employee of Licensee or any
employee of Licensee's Agents, and the City shall not be liable for any Claim by
Licensee's or its Agent's employee(s). Licensee agrees to fully indemnify, defend and
hold the City harmless in the same manner as provided in Section 11.1 (Licensee's
General Indemnification Obligations) against any Claim by any employee of Licensee or
its Agents that arises in connection with Licensee's or its Agents' access, uses or other
activities on or about the License Area, except to the extent that such Claim(s) arise from
the Indemnified Parties' intentional misconduct or negligent acts or omissions.
11.3. Licensee's Defense of the City
In the event that any action or proceeding is brought against any Indemnified Party in
connection with any Claim, the City will use good faith efforts to send prompt written notice
to Licensee. At the time Licensee receives such written notice, Licensee shall, at
Licensee's sole cost and expense, resist and defend such action or proceeding with legal
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Site Name: Trailblazer Park
Business Unit #: 831227
counsel reasonably acceptable to the City. Licensee shall not admit any liability or enter
into any compromise or settlement on any Indemnified Party's behalf without the City's
prior written consent, which may not be unreasonably withheld or delayed. If City's delay
in providing such consent will adversely affect any compromise or settlement decision
Licensee has full rights to proceed in the best interest of Licensee and the Indemnified
Parties and enter into such settlement. The City's legal counsel, at the City's sole
expense, will be permitted to cooperate with Licensee and its legal counsel and to
participate in any action or proceeding brought against any Indemnified Party in
connection with any Claim.
12. ENVIRONMENTAL PROVISIONS
12.1. Licensee's General Environmental Obligations
Licensee shall manage and conduct its, its Agents' and Invitees' activities on or in
connection with the Property: (1) in compliance with all applicable Environmental Laws
and applicable provisions in this License; (2) in cooperation with the City and the City's
efforts to maintain compliance with all applicable Environmental Laws; and (3) in
accordance with all Best Management Practices applicable to the Equipment and the
Permitted Use. Licensee shall manage its, its Agents' and Invitees' activities on or about
the Property, and as may be appropriate, secure the License Area, so as to prevent any
noncompliance with any applicable Environmental Law or any applicable environmental
provision in this License.
12.2. Hazardous Substances
Licensee, its Agents and Invitees may use only those Hazardous Substances on or about
the Property that are normally associated with the Permitted Use, and only in strict
compliance with all applicable Environmental Laws. Licensee shall use best efforts to
minimize Hazardous Substance use on the Property and, to the extent commercially
reasonable, use non-hazardous alternatives in Licensee's operations.
12.3. Licensee's Response to Hazardous Substance Release
In the event any actual, threatened or reasonably suspected Release occurs for which
Licensee is responsible under this License, Licensee shall immediately undertake and
diligently pursue, at Licensee's sole cost and expense, all action or actions necessary or
appropriate to investigate, contain, stop, accomplish source control, remove and perform
interim remediation in connection with such Release. Licensee shall promptly send the
City written notice after Licensee discovers facts about (1) an actual or reasonably
suspected violation in connection with any Environmental Law related to the Property or
this License; or (2) an actual or reasonably suspected Release on, under, from or adjacent
to the Property arising from Licensee's use of the License Area.
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Site Name: Trailblazer Park
Business Unit #: 831227
12.4. Self Help
Except in an emergency or pursuant to a governmental order that requires immediate
action, the City shall have the right (but not the obligation) to perform Licensee's
environmental obligations under this Section 12 or any applicable Environmental Laws
after the City provides Licensee with seven (7) days' written notice and a demand to
perform the obligations in issue. The City shall charge Licensee, and Licensee shall
promptly reimburse the City upon demand, for any reasonable Environmental Costs,
which shall bear interest at the statutory rate then in effect from the date the City expends
any such funds. However, the City may not perform Licensee's obligations under this
Section 12 when, within the Seven (7) day notice period, Licensee promptly notifies the
City, begins and continues thereafter to diligently pursue full performance to completion
for all obligations stated in the City's notice.
12.5. Licensee's Environmental Indemnification Obligations
In the event that Licensee breaches or fails to perform any of its environmental obligations
contained in this Section 12, or if any act, omission or negligence by Licensee or its
Agents or Invitees results in any contamination on or about the Property or the License
Area, in whole or in part, or in a Release from, on, about, in or beneath the Property or
the License Area, in whole or in part, or any Environmental Law violation, then Licensee,
for itself and its successors and assigns, shall indemnify, defend and hold harmless the
City, including its Agents, and their respective successors and assigns from and against
any and all Claims (including damages for decrease in value of the Property or License
Area, any loss or restriction on the use of usable space on the Property or the License
Area and sums paid to settle any Claims, which include without limitation attorneys' fees,
consultants' fees, experts' fees and related costs) that arise during or after the Term and
in relation to such Release or violation; provided, however, Licensee shall not be liable
for any Claims to the extent such Release or violation was caused by the City's or its
Agents' negligence or willful misconduct. Licensee's Indemnification obligation includes
costs incurred in connection with any activities required to investigate and remediate any
Hazardous Substance brought onto the Property or the License Area by Licensee, its
Agents or Invitees and to restore the Property or the License Area to its condition that
existed immediately before Licensee introduced such Hazardous Substance or to correct
any Environmental Law violation(s). Licensee specifically acknowledges and agrees that
it has an independent obligation to defend the City and the other Indemnified Parties from
any Claim that actually falls within this Indemnification provision, and which obligation
arises at the time such Claim is tendered to Licensee by the Indemnified Party and
continues until the Claim is finally resolved. Licensee shall afford the City a full opportunity
to participate in any discussions with regulatory agencies regarding any settlement
agreement, cleanup or abatement agreement, consent decree or other compromise or
proceeding involving Hazardous Substances.
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Site Name: Trailblazer Park
Business Unit #: 831227
12.6. Licensee's Liability for Hazardous Substance Release
Without limiting the Indemnification obligations in Section 12.5 (Licensee's Environmental
Indemnification Obligations), Licensee will be responsible for all response, remediation
and restoration obligations in connection with any Release and associated Environmental
Costs that results from or occurs in connection with Licensee's occupation, possession
or use of the Property and/or License Area from the Effective Date, throughout the Term
and after this License expires or terminates. Notwithstanding the preceding sentence, as
between the City and Licensee, Licensee will not be responsible for any Releases or
associated Environmental Costs caused by the City, its Agents, contractors, invitees,
licensees or other lessees after the Effective Date so long as Licensee has complied with
all applicable conditions for non-liability established in 42 U.S.C. §§ 9607(b) or (q) as may
be amended.
13. INSURANCE
13.1. Licensee's Insurance Obligations
Licensee shall procure and keep in effect at all times during the Term, at Licensee's cost,
insurance in the following amounts and coverages: (1) Commercial General Liability
insurance (including premises operations; explosion, collapse and underground hazard;
broad form property damage; products/completed operations; contractual liability meeting
the indemnification obligations herein; independent contractors; personal injury) with
limits of at least Two Million and 00/100 Dollars ($2,000,000.00) combined single limit for
each occurrence; (2) Worker's Compensation Insurance per California statutory limits
with Employer's Liability Limits not less than One Million and 00/100 Dollars
($1,000,000.00) each accident or disease; (3) Commercial Automobile Liability Insurance
with limit not less than Two Million and 00/100 Dollars ($2,000,000.00) each occurrence
combined single limit for bodily injury and property damage, including owned and non-
owned and hired vehicles. The required limits may be met by a combination of primary
and excess or umbrella insurance. Excess insurance policy must follow form of or be at
least as broad as the primary policy.
13.1.1. Required Endorsements
Commercial General Liability Insurance and Commercial Automotive Liability Insurance
policies must contain the following endorsements: (1) name the City, its officers, agents,
employees and volunteers as additional insureds; (2) that such policies are primary
insurance to any other insurance available to the additional insureds with respect to any
Claims that arise in connection with this License; (3) that such insurance applied
separately to each insured against whom a Claim is made or brought, except with respect
to limits of insurance; (4) that such policies provide for the severability of interests and
that an act or omission of one of the named insureds that would void or otherwise reduce
coverage shall not void or otherwise reduce coverage as to any other named insured;
and (5) that such policies shall afford coverage for all Claims based on acts, omissions,
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Site Name: Trailblazer Park
Business Unit #: 831227
injury or damage that occurred or arose (or the onset occurred or arose) in whole or in
part during the policy period.
All insurance policies required to be maintained by Licensee under this License shall be
endorsed to provide prior written notice of cancellation for any reason, except for non-
payment of premium, to both Licensee and the City. In the event that Licensee receives
a notice of intent to cancel or notice of cancellation for any coverage required under this
License, including notice for non-payment of premium, Licensee shall forward such notice
to the City within two (2) business days and promptly take action to prevent cancellation,
reinstate cancelled coverage or obtain coverage from a different insurer qualified under
Section 13.1.4 (Insurer Qualifications).
13.1.2. Claims-Made Policies
In the event that any required insurance under this License is provided under a claims-
made form, Licensee shall continuously maintain such coverage throughout the Term
and, without lapse, for three (3) years after this License expires or terminates, to the effect
that such Claims will be covered under Licensee's claims-made policies should any event
during the Term give rise to a Claim brought after this License expires or terminates.
13.1.3. General Aggregate Limit
The general aggregate limit for any required insurance under this License must be double
the per-occurrence or Claims limits specified in Section 13.1 (Licensee's Insurance
Obligations) when coverage includes a general annual aggregate limit or provides that
Claims investigation or legal defense costs will be included in such general annual
aggregate limit.
13.1.4. Insurer Qualifications
Licensee's insurance providers must be authorized to do business in California and must
meet or exceed an A.M. Best's Key Rating A-X or its equivalent.
13.1.5. Certificates; Effective Dates
Within ten (10) business days after the Effective Date of this License, Licensee shall
deliver to the City all insurance certificates and additional insured endorsements from
Licensee's insurance providers in a form reasonably satisfactory to the City that
evidences all the required coverages under this License. In addition, Licensee shall
promptly deliver to the City all certificates after Licensee receives a request from the City.
The City shall not authorize Licensee to access or perform any work on the License Area
until and unless all insurance coverages required to be carried by Licensee under this
License have been obtained. Licensee shall ensure that all insurance coverages required
to be carried by Licensee under this License remain in effect at all time until all Equipment
has been removed from the License Area. The requirements in this Section 13.1.5 shall
survive the expiration or termination of this License.
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Site Name: Trailblazer Park
Business Unit #: 831227
13.1.6. Self-Insurance
Licensee and its Affiliate assignees may meet the insurance obligations under this
License through self-insurance. Notwithstanding the foregoing, any non-Affiliate
assignee shall not be permitted to meet its insurance obligations under this License
through self-insurance without the prior written consent from the City, which the City shall
not unreasonably withhold, condition or delay. In the event the City consents to allow a
non-Affiliate assignee to self-insure as an alternative insurance program, such consent
will not be deemed an amendment or implied waiver to any other requirement in this
License. Any amendment to any insurance requirement must be in a written agreement.
13.2. No Limitation on Indemnification Obligations
Licensee's insurance obligations under this Section 13 in no way relieves or decreases
Licensee's liability under Section 11 (Indemnification) or any other provision in this
License.
13.3. City's Termination Right
The City may elect, in its sole and absolute discretion, to terminate this License on written
notice to Licensee if Licensee allows any required insurance coverage to lapse and does
not reinstate the lapsed insurance coverage within three (3) days after Licensee receives
such written notice.
14. ASSIGNMENT; SUBLICENSE
14.1. Assignment
Licensee may assign this License at any time without the City's consent (i) to any of
Licensee's partners or parent firms; (ii) to Licensee's successors-in-interest; (iii) in
connection with the sale, exchange, or other transfer of Licensee's FCC authorization for
the geographic market area in which the License Area is located or substantially all of
Licensee's assets in the geographic market area where the License Area is located; or
(iv) in connection with any financing, loan, security interest, pledge, or mortgage of
Licensee's property (collectively, "Affiliate Assignments"). An Affiliate Assignment of this
License by Licensee shall be effective upon Licensee sending written notice to the City,
which notice shall contain the assignees name and contact information, and shall relieve
Licensee from any further liability or obligation under this License. Any other assignment
shall require the City's prior written approval, which approval the City shall not
unreasonably withhold, delay or condition. Any assignment that violates this Section 14.1
shall, subject to applicable cure periods, be voidable at the City's option and grant the
City the right (but not the obligation) to terminate this License upon written notice to
Licensee pursuant to Section 15. This Section 14.1 shall not preclude Licensee's right to
enter into a standard roaming agreement allowing subscribers of other wireless carriers
to use the Equipment specifically constructed for Licensee's use.
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Site Name: Trailblazer Park
Business Unit #: 831227
14.2. Sublicense (Collocation)
Licensee may sublicense or in any other manner allow a third party to occupy or use the
License Area. Licensee shall provide written notice to Licensor within sixty (60) days after
such sublicense or license is fully executed.
14.3. Continuing Obligation (Novation)
Excluding an Affiliate Assignment, no other assignment or sublicense will relieve Licensee
of its obligation to pay the License Fee and to perform all other obligations to be performed
by License under this License, unless the City expressly releases Licensee from such
obligations. The acceptance of any payment due under this License by the City from any
other person or entity will not be deemed to be a waiver by the City of any provision of
this License or be construed to be consent to any assignment or sublicense.
15. DEFAULT; REMEDIES
15.1. Defaults and Cure Periods
The parties agree that it will be a default under this License when either the City or
Licensee: (1) fails to tender any sums payable pursuant to this License when due, and
such failure continues for ten (10) days after notice from the non-defaulting party; (2) fails
to perform any non-monetary term, provision, covenant or obligation under this License,
and such failure continues for thirty (30) days after notice from the non-defaulting party;
provided, however, that said 30-day cure period will be reasonably extended when the
default cannot be cured within thirty (30) days and the defaulting party commences to
cure within said 30-day cure period and diligently pursues the cure to completion.
15.2. Sums Paid During Default
Any sums paid from Licensee to the City after Licensee's default will not constitute a cure
by Licensee or waiver by the City unless the City acknowledges such cure or waiver in a
signed writing.
15.3. No Consequential Damages
The parties expressly acknowledge and agree that the License Fee or any other sums
payable under this License do not take into account any potential liabilities for
consequential or incidental damages. The parties would not willingly enter this License
without a complete, mutual waiver of liability, to the fullest extent permitted by Law, for
consequential or incidental damages arising from either party's acts or omissions.
Accordingly, without limiting Licensee's Indemnification obligations or other waivers
contained in this License and as a material consideration for this License, both parties
fully release, waive and discharge forever any and all Claims against each other for
consequential and/or incidental damages that arise from or in connection with this
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Site Name: Trailblazer Park
Business Unit #: 831227
License, which includes without limitation any lost profits from disruption to Equipment,
any interference with uses or activities conducted by either party under this License, from
any cause whatsoever, and whether due to either party's, or its Agents', active or passive
negligence or willful misconduct or not, and covenant not to sue each other, or their
Agents for such damages.
15.4. No Personal Liability for City Officials, Employees or Agents
No elected or appointive board, agency, member, officer, employee or other Agent
of the City will be personally liable to Licensee, its successors and
assigns, in the event of any default or breach by the City or for any amount which may
become due to Licensee, its successors and assigns, or for any obligation of the City
under this License.
15.5. Cumulative Remedies
Except as may be specifically provided otherwise in this License, any and all rights,
benefits and/or remedies provided or afforded to either the City or Licensee under this
License or any other instrument or document executed pursuant to this License are and
will be cumulative and not exclusive of any legal or equitable rights, benefits or remedies
available to either the City or Licensee under applicable Laws.
16. TERMINATION
16.1. Grounds for Termination
In addition to any other provision in this License that authorizes the City or Licensee to
terminate this License, this License may be terminated as follows:
(1) by either the City or Licensee upon thirty (30) days' written notice when the other
remains in default beyond any applicable cure period;
(2) by Licensee upon written notice to the City at any time prior to the Effective Date
if any Tests show, in Licensee's opinion, that the License Area is not suitable for
the Permitted Use;
(3) by Licensee upon written notice to the City at any time prior to the Effective Date
if Licensee cannot obtain all Governmental Approvals required for the Permitted
Use after Licensee exhausts in good faith all administrative remedies available
to Licensee in connection with an application for such Governmental Approvals;
(4) by Licensee upon thirty (30) days' written notice to the City at any time after the
Effective Date for any or no reason;
(5) by Licensor upon one-hundred eighty (180) days' written notice to Licensee at
any time following the expiration of the Initial Term.
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Site Name: Trailblazer Park
Business Unit #: 831227
16.2. Early Termination Fee
In the event that Licensee elects to terminate this License pursuant to Section 16.1(4)
(Grounds for Termination), Licensee shall include with its termination notice a lump sum
payable to the City equal to the then-current monthly License Fee multiplied by either
twelve (12) or the number of months remaining on the Term (whichever is less) (the
"ETF"). Licensee will not be obligated to pay any ETF if Licensee terminates this License
pursuant to Section 16.1(1), (2) or (3) (Grounds for Termination).
17. REMOVAL AND RESTORATION
Licensee shall remove all Equipment at its sole expense upon the expiration or
termination of this License, including but not limited to facilities used to house Equipment
that the City does not elect to retain. Licensee shall repair any damage to the License
Area caused by such removal, and shall return the License Area to the condition which
existed on the Effective Date, reasonable wear and tear and damage beyond the control
or without the fault or neglect of Licensee excepted. Without limiting the generality of the
foregoing, Licensee shall remove all footings, foundations, utilities, wiring and conduits.
Licensee shall be deemed in actual possession of the License Area until and unless it
completely removes its personal property and restores the License Area consistent with
this Section 17.
18. CONDEMNATION
18.1. Permanent Takings.
In the event that any entity with the power to condemn permanently takes the License
Area in whole or in part, or in the event that the City transfers the License Area in whole
or in part to such entity in lieu of eminent domain, the following provisions will apply:
18.1.1. Termination and Award.
This License will automatically terminate on the date the permanent taking or transfer
occurs. The City will be entitled to any award paid or made in connection with the taking
or any sums paid in lieu of such taking. Licensee hereby expressly waives any right or
claim to any portion thereof, including any claim for loss of business or goodwill. All
damages, whether awarded as compensation for diminution in value of the license or to
the fee of the License Area, shall belong to the City. Licensee will have no Claim against
the City for the value of any unexpired Term of this License or otherwise except that
Licensee may claim any portion of the award that is specifically allocable to Licensee's
loss or damage to Licensee's Equipment.
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Site Name: Trailblazer Park
Business Unit #: 831227
18.1.2. No Statutory Right to Terminate.
The parties understand, acknowledge and agree that this Section 18.1 is intended to fully
govern the parties' rights and obligations in the event of a permanent taking. Licensee
and the City each hereby waives and releases any right to terminate this License in whole
or in part under California Code of Civil Procedure §§ 1265.120 and 1265.130 and under
any similar Laws to the extent applicable to this License.
18.2. Temporary Takings.
Any taking that affects any License Area in whole or in part for less than 90 days will have
no effect on this License, except that Licensee will be entitled to a pro-rata abatement in
the License Fee to the extent that such temporary taking materially impairs Licensee's
use of the License Area. Furthermore, in the event that the City receives an award, if any,
in connection with such temporary taking, Licensee will receive the portion from the award
that represents compensation for the use or occupancy of the License Area during the
Term but not to exceed the License Fees payable by Licensee for the period of the taking,
and the City will retain the balance of the award.
19. DESTRUCTION
In the event that the License Area, in whole or in part, becomes damaged or destroyed,
the City will have no obligation to repair, rebuild or replace the damaged or destroyed
License Area. Notwithstanding the foregoing, the City shall have an obligation to repair,
rebuild or replace any portion of the License Area that is damaged or destroyed due to
the City's intentional misconduct or negligent acts or omissions.
In the event that the License Area, in whole or in part, becomes so damaged or destroyed
that it materially impairs Licensee's Permitted Use, and such damage or destruction
resulted from a cause not attributable to Licensee or any other person or entity affiliated
with Licensee or under Licensee's direction or control, Licensee may elect to terminate
this License within 60 days after such damage or destruction occurs.
20. NOTICES
Except as may be specifically provided otherwise in this License, all notices, demands or
other correspondence required to be given under this License must written and delivered
through (1) an established national courier service that maintains delivery records and
confirmations; (2) hand delivery; or (3) certified or registered U.S. Mail with prepaid
postage and return receipt requested, and addressed as follows:
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Site Name: Trailblazer Park
Business Unit #: 831227
TO CITY:
TO LICENSEE:
City of Carlsbad
1200 Carlsbad Village Drive
Carlsbad, CA 92008
Attn: Curtis M. Jackson
Telephone: 760-434-2836
Email: curtis.jackson@carlsbadca.gov
Crown Castle Towers 06-2 LLC
do Crown Castle USA Inc.
General Counsel
Attn: Legal — Real Estate Dept.
2000 Corporate Drive
Canonsburg, PA 15317-8564
Telephone: 1-866-482-8890
All notices will be deemed effective on receipt or on attempted delivery when delivery is
refused. Telephone, facsimile and email information are provided for convenience and for
couriers who may require such information, and any notice given solely through electronic
means will not be deemed to be effective notice. Any copies required to be given
constitute an administrative step and not actual notice. The parties may change the notice
addresses above from time-to-time through written notice to the addresses above or the
then-current notice address.
21. BANKRUPTCY
In the event that Licensee becomes a debtor in any voluntary or involuntary bankruptcy
proceeding under the Bankruptcy Code, the City and Licensee expressly intend,
acknowledge and agree that this License will be treated as either an unexpired
commercial lease or an executory contract for all purposes in connection with Bankruptcy
Code § 365 and subject to the provisions Bankruptcy Code §§ 365(d)(3) and 365(d)(4)
as those provisions may be amended or superseded in the future. Any person or entity to
which this License is assigned pursuant to the Bankruptcy Code will be deemed without
any further act to have assumed all Licensee's obligations under this License which arose
before or may arise after such assignment, and any such assignee shall execute and
deliver to the City a written instrument that confirms such assumption promptly upon a
written demand from the City. Any monies or other consideration payable or otherwise to
be delivered in connection with such assignment will be promptly paid to the City, will be
the City's exclusive property and will not constitute Licensee's or its estate's property for
the purposes under the Bankruptcy Code. Any such monies or other consideration not
paid to the City will be held in trust for the City's benefit as paid to the City as soon as
possible.
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Site Name: Trailblazer Park
Business Unit #: 831227
22. SECURITY DEPOSIT
22.1. Amount
At the time Licensee tenders to the City the first License Fee due under this License,
Licensee must also tender to the City for deposit a sum equal to Five Thousand Five
Hundred and 00/100 Dollars ($5,500.00) (the "Security Deposit") to secure Licensee's
faithful performance of all terms, covenants and conditions in this License. In the event
that the City, in its reasonable discretion, following notice and expiration of cure periods
pursuant to this License, applies or uses the Security Deposit in whole or in part for the
actual costs to cure any default by Licensee under this License, the City shall submit to
Licensee reasonable supporting documentation evidencing such costs or expenses
within thirty (30) days following the City's use of the Security Deposit (the "Supporting
Documentation"). Licensee shall, within sixty (60) days of receipt of written notice with
the Supporting Documentation, replenish the Security Deposit in the amount required to
maintain the Security Deposit at the amount stated herein. In the event that the costs and
expenses exceed the Security Deposit amount, Licensee shall reimburse the City for the
difference between the total cost and the Security Deposit and the City shall be entitled
to keep such sums. Notwithstanding anything in this License to the contrary, the City shall
not be prohibited from applying funds from the Security Deposit, in whole or in part, to
cure any non-monetary default by Licensee that remains uncured for more than sixty (60)
days after notice to the Licensee. The City may, in the City's reasonable judgment, require
Licensee to increase the Security Deposit amount from time-to-time when the City
determines that Licensee's past acts or omissions in connection with the License Area
warrants additional security.
22.2. Application or Use
Licensee agrees that the City may use the Security Deposit in whole or in part to remedy
any damage to the License Area caused by Licensee, its Agents or Invitees or any failure
by Licensee to perform any term, covenant or condition in this License (including without
limitation any failure to pay any License Fee or other sums due under this License after
any default and following notice and expiration of cure periods pursuant to this License).
In the event that the City uses the Security Deposit in whole or in part, the City will not be
deemed to have waived any rights under this License, or legal or equitable rights
whatsoever. In the event the Property is transferred, the City shall have a duty at the
time of the conveyance to return the Security Deposit to the Licensee.
The City's obligations with respect to the Security Deposit shall be in the nature of a
debtor, and the City shall not be deemed to hold the Security Deposit in trust for any
reason. The City may (but shall not be obligated to) keep the Security Deposit separate
from general funds. Licensee shall not be entitled to any interest on the Security Deposit.
In the event of early termination or expiration of this License, the City shall refund the
Security Deposit to Licensee within thirty (30) days following full performance of this
License by Licensee.
page 31 / 36
Site Name: Trailblazer Park
Business Unit #: 831227
23. MISCELLANEOUS
23.1. Interpretation; Construction
The City and Licensee acknowledge and agree that:
(1) both parties have been represented by counsel and that both parties have
participated in the negotiation and drafting process;
(2) the language in this License will always be construed simply and in accordance
with its fair and ordinary meaning, without any reference to any common
practices, interpretations, customs or definitions that may exist in any industry
or trade to which either the City or Licensee may belong;
(3) this License will never be construed either for or against either the City or
Licensee for any reason;
(4) any defined term in this License will be construed to have the same definition
when used in both the singular and plural form;
(5) the word "or" will not be interpreted as a limitation and will be construed to mean
"and/or" unless expressly provided otherwise in this License;
(6) the word "including" or phrase "which includes" will not be interpreted as a
limitation and will be construed to be followed by the phrase "without limitation"
whenever such phrase does not appear in the text;
(7) all references to any "Section" or "Exhibit" will be construed to mean a section
or exhibit attached to this License unless expressly provided otherwise in this
License;
(8) the captions contained in this License (a) are only for convenience, (b) will not
be used to interpret or construe any term or provision in this License and (c)
will not carry any legal effect whatsoever; and
(9) this License is not intended to create, does not create and will not be construed
to create any third-party benefit or beneficiaries, or any joint venture,
partnership, employment or agency relationship between the City and
Licensee.
23.2. Unenforceability; Severability
In the event that a court with competent jurisdiction over this License holds any provision
in this License invalid or unenforceable with respect to either the City or Licensee, or any
third parties to whom this License may become applicable or enforceable, (1) the valid or
enforceable provisions will not be affected whatsoever; (2) the application of such invalid
page 32 / 36
Site Name: Trailblazer Park
Business Unit #: 831227
or unenforceable provision to persons or entities other than those as to whom it is held
invalid or unenforceable shall not be affected; and (3) each provision in this License shall
be valid and enforceable to the fullest extent permitted under Law.
23.3. Time for Performance; Force Majeure
Time is of the essence of this License. Notwithstanding the provisions in this Section 23.3,
the time for performance for any term, provision, covenant or obligation under this License
will be deemed extended to account for any time lost due to delays that arise from strikes,
civil riots, floods, labor or material shortages or restrictions, governmental intervention or
any other cause not within the control of the party whose performance is due.
23.4. Integration; Entire Agreement
This License contains the entire agreement and understanding between the parties as to
the subject matter concerned in this License, and this License supersedes all prior or
contemporaneous agreements, commitments, conditions, discussions, instruments,
offers, promises and/or proposals between or among the City and Licensee in connection
with the License Area, whether oral or written.
23.5. Successors and Assigns
The parties intend and agree that this License will extend to and bind the parties'
respective heirs, personal representatives, successors and assigns.
23.6. Amendments or Modifications
All amendments or modifications to this License, if any, must be in a written and fully
executed agreement signed by both parties.
23.7. Waivers
No provision in this License may be waived or deemed waived, except in a written waiver
signed by the party against whom enforcement of such waiver is attempted. No custom
or practice which may develop between the parties in the implementation or
administration of the terms of this License will be construed to waive or lessen any right
to insist upon strict and/or timely performance of the terms of this License. Any waiver by
either party of any provision of this License will not be deemed to constitute a waiver of
any other provision, nor will such waiver constitute a continuing waiver.
23.8. Governing Law; Venue; Attorneys' Fees
This License shall be governed and construed in accordance with the laws of the State
of California without regard to conflicts of laws principles. Sole and exclusive venue for
any action or claim between the parties that arises from or in connection with this License
will reside exclusively in the Superior Court of the County of San Diego (the "Court"). All
page 33 / 36
Site Name: Trailblazer Park
Business Unit #: 831227
parties to this License agree to be subject to the Court's jurisdiction and waive all claims
whatsoever that would defeat the Court's jurisdiction to hear and adjudicate any action or
claim between the parties that arises from or in connection with this License. The
prevailing party in any final or non-appealable decision on the merits that arises from or
in connection with this License may be entitled to its reasonable attorneys' fees and costs,
which includes without limitation reasonable witness, expert and consultant fees, at the
Court's sole discretion. With respect to any provision in this License that provides for
payment of attorneys' fees, such fees will be deemed to include reasonable fees incurred
through any applicable appeal process and will include, but not be limited to, fees
attributable to legal services provided by any in-house counsel and staff to the prevailing
or indemnified party. For purposes in this License, all services rendered by all attorneys
and their staff will be valued at the average rates for independent counsel prevailing in
the County of San Diego, California.
23.9. Government Claims Act
Any claim for money damages by Licensee against the City hereunder will be subject to
California Government Code §§ 810 et seq. (the "Government Claims Act"). Neither the
City nor its council members, commissioners, elected or appointed officers or officials,
administrators, directors, managers, employees, attorneys, agents or volunteers will be
personally liable to Licensee in the event of any default or breach of the City, or for any
amount which may become due to Licensee or any successor in interest, or for any
obligations directly or indirectly incurred under this License.
23.10. Public Records Act Disclosure
Licensee acknowledges that the City is a public entity under the laws of the State of
California. Furthermore, the parties acknowledge that this License constitutes a public
record that the City must publicly disclose under (i) the California Public Records Act,
California Government Code §§ 6250 et seq.; (ii) Title 17, California Code of Regulations
§§ 91000 et seq.; (iii) Article I, § 3, of the California State Constitution; and (iv) any other
applicable Law that may require the City to disclose public records.
23.11. Estoppels
Licensee, at any time and from time-to-time on not less than 30 days' notice from the City,
shall execute, acknowledge and deliver to the City or its designee, an estoppel certificate
which states: (a) that Licensee has accepted the License Area (or, if Licensee has not
done so, that Licensee has not accepted all or any part of the License Area and specifying
the applicable portions of the License Area and reasons for non-acceptance); (b) the
Effective Date, Effective Date and expiration date for this License; (d) that this License is
unmodified and in full force and effect or, if modified, the manner in which this License is
modified; (e) whether any defenses then exist against the enforcement of any of
Licensee's obligations under this License (and if so, specifying the same); (f) whether any
of the City's obligations under this License are outstanding (and if so, identifying any City
obligations that Licensee believes that the City has failed to meet); (g) the dates, if any,
page 34 / 36
Site Name: Trailblazer Park
Business Unit #: 831227
to which the License Fees have been paid; and (h) any other information that may be
reasonably required by any such persons.
23.12. Brokers
Neither the City nor License has had any contact or dealings in connection with the license
of the License Area, or any communication in connection therewith, through a Broker,
whose commission, if any is due, is to be paid pursuant to a separate written agreement
between such Broker and the party through which such Broker contracted. In the event
that any Broker perfects a claim for a commission or finder's fee based upon any such
contact, dealings or communication, Licensee shall indemnify the City from all Claims
brought by the Broker. The representations and indemnification obligations in this Section
23.12 will survive expiration or earlier termination of this License.
23.13. Survival
The parties to this License intend that all terms and conditions within this License that by
their sense or context should survive this License's expiration, termination or cancellation,
which includes without limitation Section 4.2 (Holdover Term), Section 11
(Indemnification), Section 13.1.5 (Certificates; Effective Dates), Section 17 (Removal and
Restoration), Section 12 (Environmental Provisions), Section 23.8 (Governing Law;
Venue; Attorneys' Fees) and Section 23.12 (Brokers), or any provision in this License
which necessarily requires performance after this License expires or terminates, will
survive this License's expiration, termination or cancellation.
23.14. Submission for Inspection; No Offer
Prior to the Effective Date, the parties may submit this License to each other for inspection
and examination purposes and such submission will not constitute an offer to license the
License Area. This Licensee will become effective only upon full execution by both the
City and Licensee.
23.15. Execution; Counterparts.
This License may be executed simultaneously or in one or more counterparts. In the event
that the parties elect to execute this License in one or more counterparts, Licensee shall
execute first, the City shall execute second, each executed counterpart will be deemed
to be an original but all counterparts taken together will constitute one and the same
agreement.
[END OF LICENSE — SIGNATURES BEGIN ON NEXT PAGE]
page 35 / 36
Site Name: Trailblazer Park
Business Unit #: 831227
IN WITNESS WHEREOF, the parties have executed this License on the Effective Date
first written above:
LICENSOR:
CITY OF CARLSBAD,
a municipal corporation of the State of
California
By:
Its: Ck Ci\-eR---
Date: g
APPROVED AS TO FORM:
By:
Celia Brewer
City Attorney
Date: 001 03 12-0-2_-o
LICENSEE:
CROWN CASTLE TOWERS 06-2 LLC,
a Delaware limited liability company
By:
Its: reekr t.frA.-k* \ oit
Date:
By:
Its:
Date:
APPROVED BY CITY COUNCIL
RESOLUTION NO. 2020- ISQ,
ATTEST:
By: 41,11(11
Barbara Engleson
City Clerk
Date: 0 6104 1267-b
[END OF SIGNATURES - EXHIBITS BEGIN ON NEXT PAGE]
page 36 / 36
Site Name: Trailblazer Park
Business Unit #: 831227
EXHIBIT A
LEGAL DESCRIPTION OF THE PROPERTY
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF CARLSBAD,
COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:
PARCEL I
THAT PORTION OF PARCEL 2 OF LOT LINE ADJUSTMENT ADJ 01-13 PER
CERTIFICATE OF COMPLIANCE CE 01-55, RECORDED NOVEMBER 28, 2001 AS FILE
NO. 2001-0865065, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF
CALIFORNIA, DESCRIBED AS FOLLOWS:
BEGINNING AT THE MOST NORTHERLY POINT OF THAT PROPERTY DESCRIBED IN
DOCUMENT NO. 08-435947 FILED IN THE OFFICE OF THE COUNTY RECORDER OF
SAID COUNTY, SAID POINT BEING ON A 1,730.00 FOOT RADIUS CURVE CONCAVE
TO THE SOUTHEAST, A RADIAL TO SAID POINT BEARS NORTH 26°07'03" WEST;
THENCE SOUTHWESTERLY ALONG THE NORTHERLY LINE OF SAID PROPERTY,
ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 34°33'01" AN
ARC DISTANCE OF 1,043.22 FEET; THENCE LEAVING SAID NORTHERLY LINE NORTH
48°21'33" WEST 8.42 FEET; THENCE NORTH 51°15'33" WEST 43.67 FEET; THENCE
NORTH 52°23'29" WEST 35.98 FEET; THENCE NORTH 52°25'37" WEST 29.91 FEET;
THENCE NORTH 4803914" WEST 23.08 FEET; THENCE NORTH 53°46'31" WEST 41.98
FEET; THENCE NORTH 54°41'34" WEST 39.70 FEET; THENCE NORTH 56°01'32" WEST
36.13 THENCE 56°52'22" WEST 37.20 FEET; THENCE NORTH 53°1858" 26.23 FEET;
THENCE 53°46'06" WEST 2048. FEET; THENCE 43°13'05" WEST 2044. FEET; THENCE
NORTH 04°24'40" WEST 2065. FEET; THENCE NORTH 15°05'50" EAST 17.77 FEET;
THENCE NORTH 27°19'12" EAST 25.25 FEET; THENCE NORTH 19°00'56" EAST 53.80
FEET; THENCE NORTH 15°24'50" EAST 44.23 FEET; THENCE NORTH 14°21'09" WEST
17.42 FEET; THENCE NORTH 08°3145" EAST 16.96 FEET; THENCE NORTH 32°56'33"
EAST 24.91 FEET; THENCE NORTH 1403944" EAST 24.34 FEET; THENCE NORTH
1500400" EAST 29.09 FEET; THENCE NORTH 29°25'43" WEST 12.21 FEET; THENCE
NORTH 02°09'19" EAST 21.18 FEET; THENCE NORTH 32°10'41" EAST 96.78 FEET;
THENCE NORTH 19°51'30" EAST 24.56 FEET; THENCE NORTH 19°24'35" EAST 37.42
FEET; THENCE NORTH 18°02'54" EAST 38.98 FEET; THENCE NORTH 18°38'34" EAST
24.61 FEET; THENCE NORTH 00°14'53" WEST 44.78 FEET; THENCE SOUTH 60°10'35"
EAST 365.48 FEET; THENCE NORTH 42°31'50" EAST 78.50 FEET; THENCE NORTH
78°36'30" EAST 74.10 FEET TO THE BEGINNING OF A TANGENT 42.00 FOOT RADIUS
CURVE CONCAVE TO THE NORTHWEST; THENCE NORTHEASTERLY ALONG THE
ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 27°1810" AN ARC DISTANCE
OF 20.01 FEET; THENCE NORTH 51°18'20" EAST 244.09 FEET; THENCE SOUTH 86°15'37"
EAST 99.25 FEET; THENCE SOUTH 41°40'54" EAST 37,97 FEET; THENCE SOUTH
82°50'17" EAST 88.59 FEET TO A POINT ON THE WESTERLY LINE OF WIND TRAIL
WAY RECORDED JUNE 8, 2007 AS FILE NO. 2007-0388769 OF SAID COUNTY, SAID
POINT BEING ON A NON-TANGENT 61.00 FOOT RADIUS CURVE CONCAVE TO THE
EAST, A RADIAL TO WHICH POINT BEARS NORTH 85°00'16" WEST; THENCE
Exhibit A
Site Name: Trailblazer Park
Business Unit #: 831227
SOUTHERLY ALONG SAID WESTERLY LINE, ALONG THE ARC OF SAID CURVE
THROUGH A CENTRAL ANGLE OF 36°3854" AN ARC DISTANCE OF 39.02 FEET TO THE
BEGINNING OF A 50.00 FOOT REVERSING CURVE; THENCE, CONTINUING ALONG
SAID WESTERLY LINE, ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF
23°25'24" AN ARC DISTANCE OF 20.44 FEET TO THE POINT OF BEGINNING.
PARCEL ID#: 208-010-42-00
THIS BEING THE SAME PROPERTY CONVEYED TO CITY OF CARLSBAD, A
MUNICIPAL CORPORATION FROM GARY ROBERTSON AND BRIAN ROBERTSON, CO-
TRUSTEES OF THE ROBERTSON FAMILY TRUST 1995 TRUST, DATED APRIL 19, 1995,
AS TO AN UNDIVIDED 50% INTEREST; GARY ROBERTSON AND BRIAN ROBERTSON,
CO-TRUSTEES UNDER DECLARATION OF TRUST DATED OCTOBER 8, 1976, AS TO AN
UNDIVIDED 7% INTEREST; AND GARY ROBERTSON AND BRIAN ROBERTSON, CO-
TRUSTEES OF THE ELSIE M. KELLY IRREVOCABLE TRUST DATED JUNE 19, 1989 AS
TO AN UNDIVIDED 43% INTEREST IN A DEDICATION DATED JULY 18, 2011 AND
RECORDED JULY 20, 2011 AS INSTRUMENT NO. 2011-0368561. THE LEGAL
DESCRIPTION PROVIDED HEREIN IS SOURCED FROM THE IRREVOCABLE OFFER TO
DEDICATE REAL PROPERTY DATED MARCH 8, 2007 AND RECORDED AUGUST 14,
2008 AS INSTRUMENT NO. 2008-0435946.
PARCEL II
THAT PORTION OF PARCEL 2 OF LOT LINE ADJUSTMENT ADJ 01-13 PER
CERTIFICATE OF COMPLIANCE CE 01-55, RECORDED NOVEMBER 28, 2001 AS FILE
NO. 2001-0865065, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF
CALIFORNIA, DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT ON THE EASTERLY LINE OF SAID PARCEL 2, SAID POINT
BEING THE MOST SOUTHERLY CORNER OF THAT PORTION OF WIND TRAIL WAY
GRANTED TO THE CITY OF CARLSBAD ACCORDING TO DOCUMENT NO. 2007-
0388769 FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY ON
JUNE 8, 2007; THENCE ALONG SAID EASTERLY LINE THE FOLLOWING BEARINGS
AND DISTANCES:
SOUTH 04°56'41" EAST 35.81 FEET;
SOUTH 67°15'16" WEST 15.60 FEET;
SOUTH 53°49'59" WEST 241.03 FEET;
SOUTH 46°32'58" WEST 281.65 FEET;
SOUTH 24°02'16" WEST 40.09 FEET;
SOUTH 37°46'23" WEST 139.56 FEET;
SOUTH 42°27'17" WEST 23.56 FEET;
SOUTH 31°4812" WEST 60.19 FEET;
SOUTH 29°07'38" WEST 77.37 FEET;
SOUTH 25°38'31" WEST 9.96 FEET;
Exhibit A
Site Name: Trailblazer Park
Business Unit #: 831227
THENCE LEAVING SAID EASTERLY LINE NORTH 47°23'48" WEST 71.12 FEET; THENCE
NORTH 66°34'56" WEST 16.06 FEET; THENCE 49°00'19" WEST 21.99 FEET; THENCE
NORTH 50°46'26" WEST 46.12 FEET; THENCE NORTH 47°39'34" WEST 32.41 FEET;
THENCE NORTH 47°55'10" WEST 40.97 FEET; THENCE NORTH 48°21'33" WEST 30.47
FEET TO A POINT ON A NON-TANGENT 1,730.00 FOOT RADIUS CURVE, CONCAVE TO
THE SOUTHEAST, A RADIAL TO SAID POINT BEARS NORTH 60°40'04" EAST; THENCE
NORTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE
OF 34°33'01" AN ARC DISTANCE OF 1,043.22 FEET TO A POINT ON THE WESTERLY
LINE OF SAID WIND TRAIL WAY, SAID POINT BEING ON A NON-TANGENT 50.00
FOOT RADIUS CURVE CONCAVE TO THE WEST, A RADIAL TO SAID POINT BEARS
NORTH 81°46'14" EAST; THENCE SOUTHERLY ALONG THE WESTERLY LINE OF SAID
WIND TRAIL WAY, ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE
OF 3°54'16" AN ARC DISTANCE OF 3.41 FEET TO THE BEGINNING OF A REVERSING
594.00 FOOT RADIUS CURVE; THENCE SOUTHERLY ALONG THE WESTERLY LINE OF
SAID WIND TRAIL WAY, ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL
ANGLE OF 20°03'38" AN ARC DISTANCE OF 207.97 FEET TO THE POINT OF
BEGINNING.
PARCEL ID#: 208-010-38-00
THIS BEING THE SAME PROPERTY CONVEYED TO CITY OF CARLSBAD, A
MUNICIPAL CORPORATION FROM GARY ROBERTSON AND BRIAN ROBERTSON, CO-
TRUSTEES OF THE ROBERTSON FAMILY TRUST 1995 TRUST, DATED APRIL 19, 1995,
AS TO AN UNDIVIDED 50% INTEREST; GARY ROBERTSON AND BRIAN ROBERTSON,
CO-TRUSTEES UNDER DECLARATION OF TRUST DATED OCTOBER 8, 1976, AS TO AN
UNDIVIDED 7% INTEREST; AND GARY ROBERTSON AND BRIAN ROBERTSON, CO-
TRUSTEES OF THE ELSIE M. KELLY IRREVOCABLE TRUST DATED JUNE 19, 1989 AS
TO AN UNDIVIDED 43% INTEREST IN A DEED DATED AUGUST 2, 2008 AND
RECORDED AUGUST 14, 2008 AS INSTRUMENT NO. 2008-0435947.
PARCEL III
THAT PORTION OF PARCEL 2 OF LOT LINE ADJUSTMENT ADJ 01-13 PER
CERTIFICATE OF COMPLIANCE CE 01-55, RECORDED NOVEMBER 28, 2001 AS FILE
NO. 2001-0865065, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF
CALIFORNIA, DESCRIBED AS FOLLOWS:
BEGINNING AT THE MOST NORTHWESTERLY CORNER OF THAT PROPERTY
DESCRIBED IN DOCUMENT NO. 2008-0435946 FILED IN THE OFFICE OF THE COUNTY
RECORDER OF SAID COUNTY ON AUGUST 14, 2008; THENCE NORTH 00°1453" WEST
4.75 FEET; THENCE NORTH 16°32'33" EAST 22.22 FEET; THENCE NORTH 17°41'43"
EAST 25.83 FEET; THENCE NORTH 20°05'59" EAST 24.51 FEET; THENCE NORTH
23°44'32" EAST 26.06 FEET; THENCE NORTH 28°1816" EAST 27.22 FEET; THENCE
NORTH 31°28°07" EAST 28.46 FEET; THENCE NORTH 33°10'05" EAST 30.06 FEET;
THENCE NORTH 37°23'17" EAST 15.91 FEET; THENCE SOUTH 60°10'35" EAST 489.73
FEET TO A POINT ON THE NORTHERLY LINE OF SAID PROPERTY; THENCE ALONG
SAID NORTHERLY LINE SOUTH 51°18'20" WEST 65.43 FEET TO THE BEGINNING OF A
Exhibit A
Site Name: Trailblazer Park
Business Unit #: 831227
TANGENT 42.00 FOOT RADIUS CURVE CONCAVE TO THE NORTHWEST; THENCE
CONTINUING ALONG SAID NORTHERLY LINE, ALONG THE ARC OF SAID CURVE
THROUGH A CENTRAL ANGLE OF 27°18'10" AN ARC DISTANCE OF 20.01 FEET;
THENCE CONTINUING ALONG SAID NORTHERLY LINE THE FOLLOWING BEARINGS
AND DISTANCES:
SOUTH 78°36'30" WEST 74.10 FEET;
SOUTH 42°3150" WEST 78.50 FEET;
NORTH 60°10'35" WEST 365.48 FEET TO THE POINT OF BEGINNING.
PARCEL ID#: 208-010-39-00
THIS BEING THE SAME PROPERTY CONVEYED TO CITY OF CARLSBAD, A
MUNICIPAL CORPORATION FROM GARY ROBERTSON AND BRIAN ROBERTSON, CO-
TRUSTEES OF THE ROBERTSON FAMILY TRUST 1995 TRUST, DATED APRIL 19, 1995,
AS TO AN UNDIVIDED 50% INTEREST; GARY ROBERTSON AND BRIAN ROBERTSON,
CO-TRUSTEES UNDER DECLARATION OF TRUST DATED OCTOBER 8, 1976, AS TO AN
UNDIVIDED 7% INTEREST; AND GARY ROBERTSON AND BRIAN ROBERTSON, CO-
TRUSTEES OF THE ELSIE M. KELLY IRREVOCABLE TRUST DATED JUNE 19, 1989 AS
TO AN UNDIVIDED 43% INTEREST IN A DEED DATED NOVEMBER 6, 2008 AND
RECORDED DECEMBER 15, 2008 AS INSTRUMENT NO. 2008-0635707 AND IN A
CORRECTIVE DEED DATED FEBRUARY 26, 2009 AND RECORDED MAY 11, 2009 AS
INSTRUMENT NO. 2009-0247694.
Exhibit A
Site Name: Trailblazer Park
Business Unit #: 831227
EXHIBIT B
LICENSE AREA, ACCESS ROUTE, UTILITIES ROUTE, EQUIPMENT AND OTHER
IMPROVEMENTS
(see depictions attached behind this cover)
Exhibit B
Site Name: Trailblazer Park
Business Unit #: 831227
Exhibit B
Site Name: Trailblazer Park
Business Unit #: 831227
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EXHIBIT C
AS-BUILT SURVEY
Exhibit C
Site Name: Trailblazer Park
Business Unit #: 831227