HomeMy WebLinkAbout2017-06-13; Municipal Water District; Resolution 1576RESOLUTION NO. 1576
ADOPT A RESOLUTION AUTHORIZING THE EXECUTIVE MANAGER TO
EXECUTE A LICENSE AGREEMENT BETWEEN VERIZON WIRELESS (VAW) LLC,
DBA VERIZON WIRELESS AND THE CARLSBAD MUNICIPAL WATER DISTRICT
TO OPERATE A WIRELESS COMMUNICATION FACILITY AT THE MAERKLE
RESERVOIR SITE.
EXHIBIT 1
WHEREAS, the wireless communications facility at Maerkle Reservoir has been operational
since 1982; and
WHEREAS, the city approved Verizon Wireless's wireless communications facility's Conditional
Use Permit (CUP 09-04) on March 3, 2010, and it expires on March 2, 2020; and
WHEREAS, city staff has negotiated a 5-year with 10-year option license agreement with Verizon
Wireless, for continued use of the site for its wireless communications facility ("Agreement"); and
WHEREAS, the Agreement will generate $44,871 in revenue for CMWD over the first year ofthe
agreement and will increase a minimum of 3% annually for each year, for a total minimum revenue
over the initial 5-year term of the Agreement of $238,227.
NOW, THEREFORE, BE IT RESOLVED by the Carlsbad Municipal Water District Board of the City
of Carlsbad, California, as follows:
1. That the above recitations are true and correct.
2. That the Executive Manager is authorized and directed to execute the Wireless
Telecommunications Facility License Agreement with Verizon Wireless (VAW) LLC, dba
Verizon Wireless, which is attached hereto as Attachment "A".
3. That the Executive Manager, or his designee, is hereby authorized to take all actions
necessary to implement the License Agreement with Verizon Wireless, that are
consistent with and in full compliance with the terms and conditions expressed in the
aforementioned License Agreement, and to the satisfaction of the City Attorney,
including any amendment to exercise the 10-year extension option to the License
Agreement.
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alteration, maintenance, repair, replacement and relocation of related antennas, equipment, cables
and facility and improvements related thereto, and (iii) activities related to any of the foregoing,
provided such activities do not require an expansion of the Premises or violate Licensee's duties of
non-interference set forth herein (collectively, "Licensee's Permitted Use").
2. Term of License.
(a) This Agreement and the License granted hereunder is contingent upon
Licensee obtaining a valid corresponding Conditional Use Permit, which Conditional Use Permit
shall be attached hereto as Exhibit "B." The initial term ofthis Agreement and the License granted
thereunder shall commence on the first day of the month in which this Agreement is fully executed
("Commencement Date"), subject to 2(b) below, and shall be for five (5) years ("Initial Term").
(b) If the Exhibit "B" Conditional Use Permit expires before the date that is five
(5) years from the Commencement Date, the Initial Term shall expire on the same date as the
expiration of the Exhibit "B" Conditional Use Permit.
(c) This Agreement may be extended for an additional term not to exceed ten
(1 0) years so long as Licensee applies for and obtains an extension to the corresponding Exhibit
"B" Conditional Use Permit before Exhibit "B" Conditional Use Permit expires. Ifthis Agreement
is so extended, the parties shall execute an amendment to this Agreement memorializing such
extension.
(d) If Licensee fails to obtain a valid extension to the term of Exhibit "B"
Conditional Use Permit before it expires, this Agreement and the License granted thereunder shall
be automatically terminated, and Licensee shall immediately cease its operation and use of the
Property and Premises. Licensee shall have ninety (90) days following the expiration or earlier
termination of this Agreement to return the Premises to Licensor in the same or like conditions that
existed before Licensee occupied the Property and Premises, reasonable wear and tear and casualty
damage excepted ("Return Period"). Licensee shall pay the monthly License Fee in effect for the
last month of the then current term during Return Period.
(e) In the event that this Agreement expires pursuant to Paragraph 2(b) above,
and prior to the expiration of the Return Period, if Licensee is diligently pursuing renewal of the
Conditional Use Permit, and Licensee desires to continue operating its wireless communication
facility on the Property, Licensee shall pay Licensor an annual License Fee an amount equal to two
hundred percent (200%) of the License Fee ("Holdover Fee") identified in Paragraph 3(a) below,
including any increase that may have occurred pursuant to Paragraph 3 below. Notwithstanding the
foregoing, if Licensee applies for an extension ofthe Conditional Use Permit at least one (1) year
before the Conditional Use Permit expires and is diligently pursuing renewal of the Conditional
Use Permit but the Conditional Use Permit has not been extended at the time of its expiration,
Licensee shall not be required to pay the Holdover Fee for its continued operations of its wireless
communication facility on the Property pursuant to the terms and conditions of this Agreement. For
purposes of this subsection (e) "diligently pursuing" shall mean Licensee's application for renewal
of the Conditional Use Permit has been deemed complete by Licensor and no additional
submission(s) is (are) required of Licensee by Licensor for approval of the renewal of the
Conditional Use Permit.
Licensee Site Name: Squires Dam (Merrkel Reservoir) 2
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3. License Fee.
(a) Commencing on the Commencement Date, Licensee shall pay to Licensor
an annual fee (the "License Fee") ofForty-Four Thousand Eight Hundred Seventy-One and 36/100
Dollars ($44,871.36) which shall be payable in equal monthly installments without abatement,
deduction, or offset, on the first day of each month. The License Fee will be adjusted annually on
January 1 by the percentage increase in the most recently published Consumer Price Index-All
Urban Consumers for the San Diego Metropolitan Statistical Area over the rate in effect on the
Effective Date of the prior year. This annual increase shall not be less than three percent (3%) or
more than six percent (6%).
(b) Licensee shall also make a one-time lump sum payment to Licensor in the
amount of Six Thousand Dollars ($6,000.00) for administrative expenses required by the Licensor,
such payment to be made within forty-five ( 45) days following the Effective Date.
(c) If any monthly License Fee payment is not received by Licensor by the fifth
(5th) day of the month in which it is due, the fee payment shall be deemed delinquent and ten percent
(10%) interest shall accrue on the unpaid amount. Notwithstanding the foregoing, Licensee shall ·
not be in default hereunder unless any License Fee or other payment due hereunder is not brought
current within ten (1 0) days after Licensee's receipt of notice of such late payment. If Licensee is
delinquent for two (2) or more months in any twelve (12) month period, Licensor may immediately
terminate this Agreement and demand removal of Licensee's wireless telecommunication facility
and equipment, including, without limitation any specially installed or ancillary equipment required
by Licensee for its wireless telecommunication facility from the Premises and Property within ten
(10) business days, or if such equipment is not removed within such ten (10) business day period,
Licensor may remove the facility and all equipment associated with Licensee's wireless
telecommunication facility itself and charge Licensee for the actual cost of removal and storage
reasonably incurred by Licensor.
(d) Licensor and Licensee agree that this Agreement replaces the 1982
Agreement, referenced by Licensee as Contract #NG34326. Licensor and Licensee acknowledge
that notwithstanding the termination of the Existing Agreement and the commencement of this
Agreement, Licensee may continue to make, and Licensor may continue to receive, rent and other
payments pursuant to the Existing Agreement. In such event, any rent or other payments made
pursuant to the Existing Agreement after its termination shall be applied and credited against any
License Fees or other payments due under this Agreement.
4. Relationship of License and Exhibit B Conditional Use Permit.
(a) The granting of the License under the Agreement is contingent upon the (i)
the initial granting of the Exhibit "B" Conditional Use Permit or (ii) the subsequent granting of any
extension of Exhibit "B" Conditional Use Permit and (iii) the continuing validity of Exhibit "B"
Conditional Use Permit. This Agreement shall automatically terminate upon the expiration or
revocation of Exhibit "B" Conditional Use Permit, except as provided in Paragraph 2( d) above. The
modification or extension of Exhibit "B" Conditional Use Permit does not obligate the Licensor to
modify or extend this Agreement nor does the continuing validity of Exhibit "B" Conditional Use
Licensee Site Name: Squires Dam (Merrkel Reservoir) 3
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Permit preclude the Licensor from exercising any rights under this Agreement, including the right
to terminate this Agreement for convenience under Paragraph 13 below.
(b) Licensee shall have the right, at its expense to install, construct and maintain
on the Premises wireless transmission equipment (the "Antenna Facility") in compliance with
Exhibit "B" Conditional Use Permit for Licensee's Permitted Uses described in Section l(b) above.
Licensee's equipment building ("Building") shall house and contain the equipment described in
Exhibit "D" Communications Equipment. The Antenna Facility and Communications Equipment
are sometimes hereinafter collectively referred to as "Antenna Facility". A full sectored array shall
mean (i) panel antennas together with all associated cable, wire and other miscellaneous hardware
or (ii) omnidirectional antennas together with all associated cable, wire and other miscellaneous
hardware. The Antenna Facility shall be constructed, installed and operated within the Premises.
(c) If required by Licensor, Licensee shall install landscaping and irrigation
(collectively, "Landscaping") on the Premises in conformance with the approved site plans as
described in CUP 09-04. In the event the Landscaping damages Licensee's Communications
Equipment, Licensee shall release Licensor from liability for such damage, except to the extent
such damage arises from the negligence or willful misconduct of Licensor, its employees, agents
or representatives.
5. Limitations on License. Nothing in this Agreement is intended to create an interest
or estate of any kind or extent in the Property, Premises, or Aerial Easement. Licensee further
acknowledges and agrees that this Agreement does not create a landlord-tenant relationship and
Licensee is not entitled to avail itself of any rights afforded to tenants under the laws of the State of
California.
(a) Licensee may not assign, sublicense or transfer the License, in whole or in
part, to any other persons or entity, nor may Licensee allow any other person or entity to co-locate
its wireless facility on Licensee's Antenna Facility
(b) Notwithstanding the foregoing, Licensor's approval shall not be required for
the transfer of rights and obligations under this Agreement to Licensee's parent, a subsidiary of
Licensee's parent or an affiliate of Licensee that is wholly owned and controlled by Licensee or
Licensee's parent, provided Licensee gives Licensor written notice of such action at least thirty (30)
days prior to any such transfer. "Control" means the right and power to direct substantially all of
the management and policies of the affiliate. Failure to provide written notice prior to transfer is
grounds for immediate revocation or termination of the License by Licensor.
6. No Warranty. Except as otherwise expressly set forth herein, Licensor makes no
warranty or representation that the Premises are suitable for Licensee's use. Except as otherwise
expressly set forth herein, Licensee has inspected the Premises and accepts the same "AS-IS."
Licensor is under no obligation to perform any work or provide any materials to prepare the
Premises for Licensee.
Licensee Site Name: Squires Dam (Merrkel Reservoir) 4
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LICENSEE'S OBLIGATIONS
7. Licensee shall use the Premises solely for the purposes allowed within the scope of
the License. All Licensee improvements shall be at the Licensee's expense. Licensor will maintain
the Premises in a reasonable condition.
8. (a) Licensee shall operate its Antenna Facility in a manner that will not cause
unmitigated interference with the use or enjoyment ofthe Property by Licensor and other lessees
or licensees in and/or on the Property as of the Commencement Date of this Agreement including,
if applicable, but not limited to, the HV AC systems, roof, electronically controlled elevator system,
computers, telephone systems, or any other system serving the Property and/or its occupants.
Licensor hereby acknowledges that Licensee's use of the Premises for Licensee's Permitted Use
shall not constitute an impermissible interference.
(b) All operations of Licensee shall be lawful and in compliance with all
applicable Governmental Requirements (as hereafter defined), rules and regulations including, but
not limited to those of the FCC and the Federal Aviation Administration ("FAA"). "Governmental
Requirements" shall mean all requirements under any federal, state or local statutes, rules,
regulations, ordinances, or other requirements of any duly constituted public authority having
jurisdiction over the Property (including, without limitation, the Premises).
(c) Licensee shall indemnify Licensor and hold it harmless from all expenses,
costs, damages, loss, claims or other expenses and liabilities arising from any unmitigated
interference caused by Licensee's failure to comply with FCC or FAA rules and regulations that is
not curtailed within thirty (30) days after Licensee receives written notice of such interference from
Licensor. Licensee shall be responsible for all costs associated with any tests deemed necessary to
resolve any and all interference as set forth in this License. If such interference caused by Licensee's
failure to comply with FCC or FAA rules and regulations has not been corrected within thirty (30)
days after Licensee receives notice thereof from Licensor, Licensor may require Licensee to remove
the specific items from the Antenna Facility causing such interference until such interference
ceases.
(d) In the event that Licensee commences using the Premises in a manner as to
which Licensee is not presently licensed by the FCC but with respect to which Licensee hereafter
obtains necessary FCC licensure, Licensee's right to conduct such particular use shall be
subordinate to the use of the Property by Licensor and other licensees or occupants thereof existing
on or before the date on which Licensee commences such use. Licensor shall be under no obligation
to exercise the duties concerning interference described in Paragraph 29(b) below with respect to a
future use ofthe Premises by Licensee as described in this Paragraph 8(d).
9. Licensee is fully responsible for Licensee's Antenna Facility installed on the
Premises by Licensee, including providing fire, theft, and extended coverage insurance.
10. Licensee is required to comply with all-applicable federal state and local laws,
including FCC regulations, City of Carlsbad City Council Policy No. 64, and related City of
Carlsbad Municipal and Zoning Code provisions, as amended from time to time.
Licensee Site Name: Squires Dam (Merrkel Reservoir) 5
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11. (a) Licensee is required to secure all necessary permits or conditional use
permits from any governmental agency to install Licensee's Antenna Facility on the Premises.
Licensee may substitute, modify and/or add to its Antenna Facility located on the Premises from
time to time, provided that Licensee first obtains any and all required governmental approvals for
such substitution, modification and/or addition and the written approval of Licensor, which
approval shall not be unreasonably denied, delayed or conditioned. Notwithstanding the foregoing,
Licensee shall be entitled to perform without Licensor's consent, equipment repairs or replacements
with equipment of a "like kind" or substantially similar in nature. Licensor reserves the right to
increase the License Fee if the Licensor determines that the substitutions, modifications, or
additions materially alter the scope of the License. In addition, any change to Licensee's approved
antennae type, number of antennas, antenna location and/or changes in transmitter type and power
output shall, at the sole expense of Licensee, be made in accordance with applicable regulations
issued by the FCC. If Licensee's plans and specifications are approved by Licensor, Licensee shall
notify all other telecommunications and information services providers located on the Property per
Paragraph 29 below (hereinafter "Carrier"), in writing, as to the scheduled date and time of
commencement of construction or installation of Licensee's modified equipment not less than five
(5) business days prior to such date. Any unauthorized modification to Licensee's Antenna Facility
shall be deemed a breach of this Agreement and Licensor shall give Licensee written notice of such
breach. After receipt of such written notice, Licensee shall have twenty-five (25) days in which to
commence to cure the breach, provided Licensor may extend such cure period if, in Licensor's sole
discretion, it determines that the nature of the cure is such that it reasonably requires more than
twenty-five (25) days. Licensor may not maintain any action or effect any remedies for default
against Licensee unless and until Licensee has failed to commence to cure the breach within the
time periods provided in this Paragraph.
(b) Licensee is required to maintain Exhibit "B" Conditional Use Permit and all
of the certificates, permits and other approvals, which may be required from other federal, state or
local authorities, and any temporary easements or other rights of entry, which are required from any
third parties. Licensor shall cooperate with Licensee in its efforts to obtain such approvals and/or
temporary easements or rights of entry, as may be required for Licensee's Antenna Facility as
approved in Exhibit "B" Conditional Use Permit. If (i) any application and/or negotiations by
Licensee for any required certificate, permit, license, temporary easement, right of entry, approval,
policy of title insurance, or agreement is finally denied, rejected and/or terminated, (ii) any such
certificate, permit, license, temporary easement, right of entry, approval or agreement is canceled,
or expires, or lapses or is otherwise withdrawn or terminated, (iii) any Hazardous Materials (as
defined in Paragraph 18 below) are discovered or otherwise become located on the Property or the
Premises, other than as a direct result of Licensee's activities, or (iv) due to technological changes
or business changes, Licensee determines that it is no longer practical to use the Premises for
Licensee's intended purposes, then Licensee shall have the right to terminate this Agreement, which
termination shall be effective no sooner than one hundred eighty (180) days from delivery of written
notice from Licensee to Licensor, provided Licensee has removed all of its personal property,
fixtures, electrical meters, and equipment from the Premises and Property by that time.
12. Licensee is responsible for all utilities and any property taxes imposed as a result of
the use of the Property by Licensee. Licensee specifically acknowledges that the grant of the
Licensee Site Name: Squires Dam (Merrkel Reservoir) 6
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License may subject Licensee to certain taxes under California Revenue and Taxation Code section
107.6 and agrees it is solely responsible for the payment of these taxes.
13. (a) Licensee shall, at Licensee's sole expense and within one hundred eighty
(180) days after Licensee's receipt of written notice ("Notice Period") from Licensor to protect,
temporarily disconnect, relocate, modify or remove (collectively, "Relocate") its Antenna Facility,
Communication Equipment, Building, and/or other property if Licensor determines, in its sole
discretion, that Licensee's Antenna Facility, Communication Equipment, Building, and/or other
property are inconsistent with or interfere with Licensor's current or planned use of the Property or
Premises; provided, however that if Licensor requests Licensee to Relocate prior to the expiration
of the seventh (7th) year of the Initial Term of this License Agreement, Licensor shall pay
seventy-five percent (75%) of Licensee's reasonable costs and expenses related to such relocation.
Notwithstanding the foregoing, Licensee shall not be required to Relocate until such time that
Licensee obtains all requisite governmental approvals and permits (collectively, "Approvals")
related to such relocation; provided however that if the timeframe to obtain such Approvals exceeds
the Notice Period, Licensee shall be entitled to install a cell site on wheels ("COW") on the Property
for up to nine (9) months, while it continues to seek the Approvals. In the event the Approvals are
not obtained within such nine (9) month period despite Licensee's diligent efforts, Licensor, in its
reasonable discretion, may extend the period of time during which the COW may remain on the
Property. Further, in consideration for Licensor's consent to enter into this Agreement, Licensee
waives any and all rights it may have under federal or state law for relocation assistance benefits if
Licensor requires Licensee to relocate or make use of the Property or Premises in such a way as to
displace Licensee from the Property or Premises. Licensee shall execute any further commercially
reasonable documentation of this release and waiver mutually acceptable to Licensor and Licensee
as Licensor may reasonably require in the future.
(b) If Licensee does not Relocate its Antenna Facility, Communication
Equipment, Building, and/or other property within the time period specified above, Licensor may
remove the Antenna Facility, Communication Equipment, Building, and property and charge
Licensee for the actual cost of removal and storage. Alternatively, upon Licensee's request,
Licensor may approve the abandonment of Licensee's Antenna Facility, Communication
Equipment, Building, or personal property in place. Upon approval, Licensee shall execute,
acknowledge and deliver to Licensor any necessary documents to transfer ownership of its Antenna
Facility, Communication Equipment, Building, and personal property to Licensor in "as is, where
is" condition, and without warranty of any kind.
(c) In the event that Licensor determines in its sole discretion that it is no longer
practical to allow Licensee to use the Premises for Licensee's intended purposes, then Licensor shall
have the right to terminate this Agreement, which termination shall be effective no sooner than one
(1) year from delivery of written notice from Licensor to Licensee. If Licensor requests Licensee to
remove its Antenna Facility, Communication Equipment, Building, and/or other property within
the time period specified in the written notice and the request for removal is made prior to the
expiration of the seventh (7th) year of the Initial Term of this License Agreement, Licensor shall
pay seventy-five percent (75%) ofLicensee's reasonable costs and expenses related to such removal
of its Antenna Facility, Communication Equipment, Building and/or other property at the Premises.
Notwithstanding the foregoing, Licensor may allow Licensee to install a cell site on wheels
Licensee Site Name: Squires Dam (Merrkel Reservoir) 7
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("COW") on the Property for up to one (1) year, while it seeks to obtain another location to site its
facilities. In the event that Licensee is unable to obtain, within such one (1) year period, despite
Licensee's diligent efforts, Licensor may, in its sole discretion, extend the period of time during
which the COW may remain on the Property. Further, in consideration for Licensor's consent to
enter into this Agreement, Licensee waives any and all rights it may have under federal or state law
for relocation assistance benefits, if any, if Licensor requires Licensee to remove or make use of
the Property or Premises in such a way as to displace Licensee from the Property or Premises.
Licensee shall execute any further commercially reasonable documentation of this release and
waiver mutually acceptable to Licensor and Licensee as Licensor may reasonably require in the
future.
14. Intentionally Omitted.
15. Licensee shall exercise due diligence in utilizing the Premises of Licensor so as to
not interfere with utilization of the Property or Premises by Licensor or other authorized persons,
and Licensee agrees to comply with any rules and regulations Licensor may promulgate at any time
in reference to utilization of the Property or Premises by any party other than Licensor provided the
same does not conflict with the terms and conditions of this Agreement and notice of same is given
to Licensee.
16. (a) Licensee shall waive all claims against Licensor for any damages to the
personal property and Antenna Facility of Licensee in, upon or about the Property and Premises
and for injuries to any employees of Licensee or their agents in, upon, or about the Property or
Premises from any cause arising at any time, except any damages arising from the gross negligence
or willful misconduct of Licensor or its agents, employees or contractors. In addition, except to the
extent of the gross negligence or willful misconduct of Licensor or its agents, employees or
contractors, Licensee will indemnify, defend, and hold Licensor, including all of its elected and
appointed officials, officers, employees, contractors and agents ("Indemnified Parties"), exempt
and harmless from any damage or injury to any person, or any property, to the extent arising from
the use of the Property or Premises by Licensee or Licensee's officers, employees, contractors, or
agents, or from the failure of Licensee to keep the Antenna Facility in good condition and repair,
reasonable wear and tear excepted, as provided for in this Agreement.
(b) Neither party shall be liable to the other, or any of their respective agents,
representatives or employees for any lost revenue, lost profits, loss oftechnology, rights or services,
incidental, punitive, indirect, special or consequential damages, loss of data, or interruption or loss
of use of service, even if advised of the possibility of such damages, whether under theory of
contract, tort (including negligence), strict liability or otherwise.
(c) Licensee's indemnification shall include any and all costs, expenses,
reasonable attorneys' fees and liability incurred by the Indemnified Parties in defending against
such claims, whether the same proceed to judgment or not.
17. (a) Licensee shall obtain and maintain for the duration of the Agreement and
any and all amendments, insurance against claims for injuries to persons or damage to property
which may arise out of or in connection with use of the Property or Premises by Licensee or
Licensee's employees. The insurance will be obtained from an insurance carrier admitted and
Licensee Site Name: Squires Dam (Merrkel Reservoir) 8
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authorized to do business in the State of California. The insurance carrier is required to have a
current Best's Key Rating of not less than "A-:VII".
(b) Licensee shall maintain the types of insurance coverage and minimum limits
indicated below, unless the Risk Manager for the City of Carlsbad approves a lower amount. These
minimum amounts of coverage will not constitute any limitations or cap on Licensee's
indemnification obligations under this Agreement. Licensor, its elected officials or Board of
Directors, its officers, agents and employees make no representation that the limits of the insurance
specified to be carried by Licensee pursuant to this Agreement are adequate to protect Licensee. If
Licensee believes that any required insurance coverage is inadequate, Licensee will obtain such
additional insurance coverage, as Licensee deems adequate, at Licensee's sole expense.
1) Commercial General Liability. $2,000,000 combined single-limit per
occurrence for bodily injury and property damage and $4,000,000 general aggregate.
2) Automobile Liability. $2,000,000 combined single-limit per accident
for bodily injury and property damage.
3) Worker's Compensation and Employer's Liability. Worker's
Compensation limits as required by the California Labor Code and Employer's
Liability limits of $1,000,000 each accident/disease/policy limit.
(c) Licensee will ensure that the policies of insurance required under this
Agreement contain the following provisions:
1) Licensor and the City of Carlsbad will be included as an additional
insured as their interest may appear under this Agreement on the Commercial
General Liability Policy.
2) Licensee will obtain occurrence coverage that must be maintained for
the duration of the Agreement.
3) This insurance will be in force during the life of the Agreement and
any extensions thereof. Upon receipt of notice from its insurer, Licensee will provide
the City with thirty (30) day's prior written notice of cancellation.
(d) Upon Licensor's execution of this Agreement and annually thereafter,
Licensee will furnish certificates of insurance to Licensor and City of Carlsbad.
(e) If Licensee fails to maintain any or all of the required insurance and in the
amount specified, Licensor may immediately terminate this Agreement.
(f) Licensee shall provide Licensor copies of a blanket additional insured
endorsement and certificates of insurance required by the Agreement.
(g) Licensee may self-insure any of the required insurance under the same terms
and conditions as outlined herein and will provide Licensor notice of intent to self-insure along with
a Letter of Self-Insurance outlining the required coverage.
Licensee Site Name: Squires Dam (Merrkel Reservoir) 9
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(h) Licensee shall require any contractors and subcontractors to obtain and
maintain substantially the same coverage with substantially the same limits as required of Licensee.
18. Licensor and Licensee shall each refrain from using, generating, storing or disposing
of any Hazardous Material on, under, about or within the Property in violation of any law or
regulation. "Hazardous Material" shall mean petroleum or any petroleum product, asbestos, any
substance known by the State of California to cause cancer and/or reproductive toxicity, and/or any
substance, chemical or waste which is identified as hazardous, toxic or dangerous in any applicable
federal, state or local law or regulation. In the event of a breach of this provision by either party,
the other may terminate this Agreement upon thirty (30) days written notice to the other (unless
such breach is cured within such thirty (30) day period) and pursue any remedies to which it is
entitled by law.
19. If necessary Licensee will install at its own cost:
(a) a separate electrical panel and meter for its Antenna Facility and equipment
and be responsible for all electrical costs attributable thereto.
(b) a separate water meter for any landscaping required by Exhibit "B"
Conditional Use Permit or other federal, state, or local approval and be responsible for all water
and maintenance costs attributable to the this requirement.
(c) security monitoring devices, subject to approval of Licensor. Licensee shall
provide Licensor the opportunity to monitor these devices at Licensee's expense.
20. Licensee shall provide Licensor with "as-built" drawings for the Antenna Facility
within sixty (60) days after the Antenna Facility is installed.
21. Licensee shall perform the installation in a neat, responsible, workmanlike manner,
using generally accepted construction standards, consistent with such reasonable requirements as
shall be in imposed by Licensor.
22. Licensee shall repair or refinish, at Licensee's sole cost and expense, any surface or
other portion of the Property or Premises that is damaged by or during the installation, maintenance,
or operation of the Antenna Facility. Without limiting any other available remedies, if Licensee
fails to commence repairing or refinishing such damage within thirty (30) days after receipt of
Licensor's notice, Licensor may, in its sole discretion, but without any obligation to do so, repair or
refinish the damage and Licensee shall reimburse Licensor all actual costs and expenses reasonably
incurred in the repair or refinishing.
23. Licensee shall ensure that the Premises are maintained in a clean, safe condition and
that Licensee's Antenna Facility is in good repair and free of any defects.
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LICENSOR'S OBLIGATIONS
Licensor will:
24. Allow the construction installation, operation, and maintenance of Licensee's
Antenna Facility on the Property and Premises for use by Licensee, as approved in Exhibit "B"
Conditional Use Permit.
25. Allow reasonable ingress and egress for Licensee to the Property twenty-four (24)
hours per day, seven (7) days per week with an escort from Licensor (a) for maintenance purposes,
and Licensee shall provide Licensor with at least twenty-four (24) hours prior notice before access
for such maintenance purposes; and (b) in the event of an emergency, where "emergency" shall be
defined as an imminent threat of bodily injury, bodily harm or property damage where immediate
access is required, or cases of equipment or antenna failure. In the case of an emergency, Licensee
shall use its best efforts to first contact Licensor and give Licensor a reasonable amount of time
under the circumstances to be present while Licensee is on the Property.
26. Be responsible for its own equipment.
27. Grant any necessary temporary right of entry for as long as this License is in effect
for electrical and telephone service to the Premises.
28. Licensor and its agents shall have the right to enter the Premises upon twenty-four
(24) hour's advance notice to Licensee, during reasonable business hours, for any purpose consistent
with Licensor's status as the owner of the Property and Licensor under this Agreement. Such right
is in addition to and in lieu of any right Licensor may have as the local regulatory authority. In the
event of an emergency, the notice requirement will be waived for such entry requirements,
"emergency" shall be defined as an imminent threat of bodily harm, bodily injury or property
damage where immediate entry is required. Licensor shall provide written notice to Licensee of
such entry immediately after making entry in such circumstances. Under emergency circumstances,
Licensor may access Licensee's equipment cabinets located on the Premises; provided however that
Licensor shall first complete and submit to Licensee the "Cell Site Hard/Soft Key Access Request
Form" attached hereto as Exhibit "E." Licensor shall use its best efforts to first contact Licensee
and give Licensee a reasonable amount of time under the circumstances to be present while Licensor
accesses such equipment cabinets.
29. Subject to Paragraph 29 (a) and (b) below and Licensee's other rights under this
Agreement, Licensor reserves the right to enter into agreements with other parties, including, but
not limited to additional Carriers for use of the Property. In the event that an additional Carrier is
licensed to use the Property, it shall be such Carrier's responsibility, at its expense to ensure that
such installation is constructed and operated in accordance with applicable FCC regulations. If
Licensor approves such Carrier's plans and specifications, Licensor shall notify Licensee in writing
as to the scheduled date and time of commencement of construction and installation of the Carrier's
facility and equipment not less than five (5) business days prior to such date. The Carrier's facility,
equipment and location, and any change to the additional Carrier's approved facility, equipment
and location shall be made compatible with Licensee's facility and equipment at Carrier's sole
expense. Except as otherwise required or permitted by applicable law, disputes between the
Licensee Site Name: Squires Dam (Merrkel Reservoir) 11
Page 748
Licensee and the other Carriers over the use of the Property shall be submitted to Licensor's City
Manager or an authorized designee for final resolution.
(a) Licensor shall not permit third party lessees, licensees, or agents to obtain
rights to the Property, after the Effective Date hereof, to use any portion of the Property in any way
which interferes with the operations of Licensee. Without limiting the generality of the foregoing,
Licensor hereby acknowledges that in the event of any interference with Licensee's Permitted Use
as a result of the transmission or reception (or both) of radio, microwave or other
telecommunications signals by a future third party lessee, licensee or occupant of the Property,
Licensee's rights hereunder to conduct Licensee's Permitted Use shall be and remain superior to the
rights of any such third party future lessee, licensee or occupant, subject, however, to the provisions
of Paragraph 8( d) above. Licensor further acknowledges that interference with Licensee's
operations from future third party lessees, licensees, or occupants may cause Licensee to suffer
irreparable injury and entitle Licensee, in addition to exercising any other rights hereunder or under
applicable law, to seek the immediate enjoinment of such interference against the interfering third
party.
(b) Subject to the provisions of Paragraph 29(a) above, Licensor reserves the
right to license other portions of the Property to other third parties during the term of this Agreement
and License. Accordingly, Licensor agrees that any other third person or entity who may install
equipment subsequent to the Effective Date in and/or on the Property will be permitted to install
only such communications equipment that is of the type and frequency that will not cause any
interference to Licensee or persons or entities claiming through or under Licensee. In the event any
such third person or entity's equipment causes such interference, Licensor will cause the interfering
third party to take all steps necessary to correct and eliminate the interference or such interfering
third party will be required to cease operations until such interference is removed. To the extent
that Licensee's operations are not within the parameters of its FCC license, this protection from
co-located interference will not be applicable, but it shall be applicable with respect to those
operations, or portions thereof, falling within the FCC license parameters. Notwithstanding the
foregoing, Licensee's right to be free from interference and Licensor's duties concerning the
prevention and/or correction of interference shall be subject to Paragraph 8( d) above.
GENERAL PROVISIONS
30. Any breach of Licensee's obligations under this Agreement, other than the failure to
pay applicable fees when due hereunder, which breach is not cured within thirty (30) days of notice
to Licensee of such breach, is grounds for revocation or termination of this License by Licensor.
31. Any action at law or in equity brought by either of the parties for the purposes of
enforcing a right provided by this Agreement will be tried in a court of competent jurisdiction in
the County of San Diego, State of California, and the parties waive all provisions of law providing
for a change of venue in these proceedings to any other county.
32. All notices under this Agreement shall be in writing and, unless otherwise provided
in this Agreement, shall be deemed validly given if sent by certified mail, return receipt requested,
or via recognized overnight courier service, addressed as follows (or to any other mailing address
which the party to be notified may designate to the other party by such notice). All notices properly
Licensee Site Name: Squires Dam (Merrkel Reservoir) 12
Page 749
given as provided for in this section shall be deemed to be given on the date received or refused
when delivered as provided herein when sent. Should Licensor or Licensee have a change of
address, the other party shall immediately be notified as provided in this section of such change.
LICENSEE:
V erizon Wireless (VA W) LLC,
d/b/a Verizon Wireless
180 Washington Valley Road
Bedminster, New Jersey 07921
Attn: Network Real Estate
(Site: Squires Dam)
LICENSOR:
Carlsbad Municipal Water District
1200 Carlsbad Village Drive
Carlsbad, CA 92008
Attn: Curtis M. Jackson
Title: Real Estate Manager
33. The waiver by Licensor or Licensee of any breach of any term, covenant, or
condition in this Agreement shall not be deemed to be a waiver of such term, covenant, or condition
for any subsequent breach of the same or any other term, covenant, or condition of this Agreement.
34. If any part of any provision of this Agreement or any other agreement, document, or
writing given pursuant to or in connection with this Agreement is finally determined to be invalid
or unenforceable under applicable law, that part or provision shall be ineffective to the extent of
such invalidity only, and the remaining terms and condition shall be interpreted so as to give the
greatest effect to them.
3 5. The terms and conditions of this Agreement shall bind and inure to the benefit of
Licensor and Licensee and, except as otherwise provided in this Agreement, their respective heirs,
distributes, executors, administrators, successors, and assigns.
36. The terms and conditions contained in this Agreement supersede all prior oral or
written understandings between the parties concerning the subject matter of this Agreement.
Notwithstanding this, nothing in this Agreement is intended to alter or abrogate actions taken or
conditions imposed by Licensor in its capacity as regulatory authority.
37. This Agreement shall not be modified or amended except in writing signed by
authorized representatives of the parties.
38. The above recitals are incorporated into this Agreement
39. All identified or referred to Exhibits are incorporated into this Agreement by this
reference.
[Signatures appear on next page]
Licensee Site Name: Squires Dam (Merrkel Reservoir) 13
Page 751
AIRTOUCH CELLULAR d/b/a VERIZON WIRELESS
ASSISTANT SECRETARY'S CERTIFICATE
I, Karen M. Shipman, do hereby certify that I am a duly elected, qualified and
acting Assistant Secretary of AirTouch Cellular, a California corporc:1tion, and as such I
am authorized to execute this certificate. In such capacity, I further certify that:
Los Angeles SMSA Limited Partnership is a California limited partnership (the
"Partnership").
As General Partner, AirTouch Cellular is authorized to sign on behalf of
the Partnership.
Steve Lamb is duly appointed, qualified and acting under delegated
authority to sign on behalf of AirTouch Cellular d/b/a Verizon Wireless a.o;
Director-Network Field Engineering.
Dated: Apri121, 2016
~Sh1>+'
Assistant Secretary
211311'JS_I
Page 752
VERIZON WIRELESS (VA W) LLC d/b/a VERIZON WIRELESS
ASSISTANT SECRETARY CERTIFICATE
I, Karen M. Shipman, d9 hereby certify that I am a duly elected, qualified and
acting Assistant Secretary of Verizon Wireless (VA W) LLC, (the "Company"), a
Delaware limited liability company, and as such I am authorized to execute this
certificate. In such capacity, I further certify that:
Steve Lamb is duly appointed, qualified and acting under delegated authority to
sign on behalf of Verizon Wireless (VA W) LLC d/b/a Verizon Wireless as
Director-Network Field Engineering.
Dated: April 2 1, 2016 ~s~
Assistant Secretary
Page 753
EXHIBIT A
DESCRIPTION OF "PROPERTY"
(page 1 of2)
Main Site Parcel:
All that certain real property situated in the County of San Diego, State of California, described as
follows:
That portion of Lot C, Rancho Agua Hedionda, in the County of San Diego, State of California,
according to Map No. 823, filed in the Office of the County Recorder of San Diego County,
California, described as follows:
Beginning at Point 3 of Lot C of Rancho Agua Hedionda, as shown on Record of Survey Map No.
64 78, filed in the Office of the County Recorder of said County;
Thence North 89° 56' 40" East 917.02 feet;
Thence North 70° 40' 19" East 227.59 feet;
Thence North 83° 31' 22" East 683.87 feet;
Thence North 4° 58' 38" West 635.00 feet;
Thence North 18° 42' 48" West 706.51 feet;
Thence North 57° 03' 35" West 852.80 feet;
Thence South 32° 56' 25" West 1500.00 feet;
Thence South 0° 09' 30" East 660.00 feet to the point of beginning.
Assessor's Parcel Number: 169-500-05
Additional Fiber Location:
All that certain real property situated in the County of San Diego, State of California, described as
follows:
All that portion of Lot "C" of Rancho Agua Hedionda, in the City of Carlsbad, County of San
Diego, State of California, according to Map thereof No. 823, filed in the office of the County
Recorder of San Diego County, November 16, 1896, described as follows:
Beginning at Point 3 of said Lot "C";
Thence North 89° 49' 02" East 917.02 feet;
Thence North 70° 32' 41" East 227.59 feet;
Thence North 83° 23' 44" East 683.87 feet;
Thence South 25° 17' 26" East 263.64 feet to the beginning of a tangent 250 foot radius curve
concave Westerly;
Licensee Site Name: Squires Dam (Merrkel Reservoir)
Page 754
EXHIBIT A
DESCRIPTION OF "PROPERTY"
(page 2 of2)
Thence Southeasterly and Southwesterly along said curve through a central angle of 57° 57' 46"
an arc distance of252.91 feet;
Thence tangent to said curve South 32° 40' 20" West 172.88 feet;
Thence South 45° 40' 01" West 133.42 feet to a point on a 330 foot radius curve concave
Southeasterly, a radial line of said curve bears South 57° 19' 40" East from said point;
Thence Southwesterly along said curve through a central angle of 20° 11' 39" an arc distance
of 116.31 feet;
Thence tangent to said curve South 12° 28' 41" West 27 4.34 feet to the beginning of a tangent
220 foot radius curve concave Northwesterly;
Thence Southwesterly along said curve through a central angle of 32° 0 1' 03" an arc distance
of 122.94 feet;
Thence tangent to said curve South 44 o 29' 44" West 131.87 feet to the beginning of a tangent
220 foot radius curve concave Northwesterly;
Thence Southwesterly along said curve through a central angle of 56° 11' 22" an arc distance
of215.75 feet;
Thence tangent to said curve North 79° 18' 54" West 118.09 feet to the beginning of a tangent
280 foot radius curve concave Southeasterly;
Thence Southwesterly along said curve through a central angle of 37° 46' 09" an arc distance
of 184.58 feet;
Thence tangent to said curve South 62° 54' 57" West 252.19 feet;
Thence North 86° 43' 41" West 608.04 feet;
Thence South 45° 02' 33" West 179.96 feet to the West line of said Lot "C";
Thence North 00° 32' 00" West along said West line of Lot "C" 1410.23 feet to the point of
beginning, containing 51.87 acres more or less; said West line of Lot "C" being that shown on
Record of Survey Map No. 517 as South 0° 32' East, 2655.2 feet between Points 2 and 3 of Lot
"C" (which are also Points 14 and 13 of Lot "B") in Rancho Agua Hedionda.
Assessor's Parcel Number: 169-230-02
Licensee Site Name: Squires Dam (Merrkel Reservoir)
Page 755
EXHIBITB
CONDITIONAL USE PERMIT
(See Attached CUP-09-04)
Licensee Site Name: Squires Dam (Merrkel Reservoir)
Page 756
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PLANNING COMMISSION RESOLUTION NO. 6572
A RESOLUTION OF THE PLANNING COMMISSION OF THE
CITY OF CARLSBAD, CALIFORNIA, APPROVING A
CONDITIONAL USE PERMIT (CUP 09-04) FROM MARCH 3,
2010 THROUGH MARCH 2, 2020 TO ALLOW FOR THE
CONTINUED OPERATION OF AN EXISTING UNMANNED
WIRELESS COMMUNICATION FACILITY LOCATED ON AN
EXISTING 150 FOOT TALL LATTICE TOWER NORTH OF
SQUIRES DAM IN THE OPEN SPACE ZONE AND IN LOCAL
FACILITIES MANAGEMENT ZONE 15.
CASE NAME: SQUIRES DAM COMMUNICATION SITE
CASE NO.: CUP 09-04
WHEREAS, Verizon Wireless, "Developer," has filed a verified application with
the City of Carlsbad regarding property owned by City of Carlsbad, "Owner," described as
Portion of Lot C of Rancho Agua Hedionda in the City of
Carlsbad, County of San Diego, State of California, according
to Map No. 823 filed in the Office of the County Recorder of
San Diego, November 16, 1896
("the Property"); and
WHEREAS, said verified application constitutes a request for a Conditional Use
Permit as shown on Exhibits "A" -"B" dated August 2, 1995, on file in the Planning
Department SQUIRES DAM COMMUNICATION SITE -CUP 09-04, as provided by
Chapter 21.42 and/or 21.50 ofthe Carlsbad Municipal Code; and
WHEREAS, the Planning Commission did, on March 3, 2010, hold a duly
noticed public hearing as prescribed by law to consider said request; and
WHEREAS, at said public hearing, upon hearing and considering all testimony
and arguments, if any, of all persons desiring to be heard, said Commission considered all factors
relating to the CUP.
NOW, THEREFORE, BE IT HEREBY RESOLVED by the Planning
Commission ofthe City of Carlsbad as follows:
Page 757
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A) That the foregoing recitations are true and correct.
B) That based on the evidence presented at the public hearing, the · Planning
Commission APPROVES CUP 09-04 SQUIRES DAM
COMMUNICATION SITE based on the following findings and subject to the
following conditions:
Findings:
1.
2.
3.
That the requested use is necessary or desirable for the development of the community,
and is in harmony with the various elements and objectives of the general plan, including,
if applicable, the certified local coastal program, specific plan or master plan, in that the
existing Wireless Communication Facility is necessary and desirable for the
development of the community because of the benefit and demand for digital
communications and data transmissions for businesses, individuals, public agencies,
and emergency service systems. The WCF is consistent with the General Plan in
that the Open Space Land Use designation allows the installation of WCF uses.
C.17. of the Implementing Policies and Action Programs in the Open Space Element
of the General Plan is to provide the public with essential utilities, public facilities
and services.
That the requested use is not detrimental to existing uses or to uses specifically permitted
in the zone in which the proposed use is to be located in that the existing Wireless
Communication Facility is not detrimental to existing uses or to uses specifically
permitted in the zone in which the proposed use is to be located in that the proposed
CUP application does not propose any modifications to the existing facility or site.
The Wind Load Study for the project (Next Step Design Inc., September 2009)
concludes that the tower is structurally sound as designed and therefore is not
physically detrimental to adjacent residential uses. The project also complies with
the City's Noise Guidelines Manual to ensure that the existing WCF noise emissions
remain compatible with the existing residences. Although the existing 150 foot tall
lattice tower is clearly visible to the public, the use is not considered detrimental
(from a health and safety perspective) to the existing residential uses. The visual
nuisance of this WCF facility is minimized in that the antennas are mounted as close
to the tower as technically possible.
That the site for the proposed conditional use is adequate in size and shape to
accommodate the yards, setbacks, walls, fences, parking, loading facilities, buffer areas,
landscaping and other development features prescribed in this code and required by the
planning director, planning commission or city council, in order to integrate the use with
other uses in the neighborhood, in that the WCF is proposed on an existing lattice
tower that was approved and constructed as CUP 87-07, 75 feet from the nearest
residential property line. The tower location was dictated by policies in place at that
time and the operational needs of the applicant. City Council Policy 64 currently
identifies existing lattice towers as a preferred location for new WCFs.
4. That the street system serving the proposed use is adequate to properly handle all traffic
generated by the proposed use, in that the only street system required is the existing
PC RESO NO. 6572 -2-
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5.
6.
access road to the site, and this road will continue to be maintained. No traffic is
generated by the existing use except for one monthly on-site maintenance visit.
That the proposed wireless communication facility is consistent with City Council Policy
Statement No. 64, in that the location is considered "preferred" given that the WCF is
continuing to operate in a preferred location in an Open Space zone on an existing
communication tower near Maerkle Reservoir. The existing Wireless
Communication Facility does not exhibit a stealth design since the technology is not
yet available to stealth the antennas. At the time CUP 87-07(B) was approved, City
Council Policy No. 64 (which requires stealth design) had not been adopted; the
applicant has steadfastly contended that new technology is not available to replace
the current equipment with "stealth" devices; and the only available tower designs
for the Wireless Communication Facility are either a lattice tower or mono-pole.
Mono-poles can be disguised as trees to provide a stealth design; however, at this
site, the determining factor for the original lattice tower is the capability such
facility provides for the location of multiple antennas on a single tower given the
potential wind loads at this elevation. Additionally, the wireless cellular industry
does not have mono-palms or other types of trees at the height required for the cell
site to work effectively. The existing 150 foot tall WCF lattice tower is setback
approximately 75 feet from the nearest residential property line. It would be
extremely difficult and costly to relocate the WCF to achieve a 150 foot setback from
the property line of the adjacent single-family residences located in the City of
Vista. The specific location of the tower was originally chosen because of the
tower's line-of-sight requirements and the Federal Communications Commission's
requirements which preclude interference with existing uses. The WCF had to
locate outside of Cablevision's transmit/receive signal paths and had to locate where
its signals were not impacted by Cablevision's facility. By choosing this particular
site, the WCF complied with FCC and FAA standards. The WCF is setback much
more than the 150 feet from the nearest residential zone boundary in the City of
Carlsbad. It would be costly and difficult to move the lattice tower and would
temporarily disrupt service. Additionally, the applicant also has a license agreement
for a particular portion of the property on which the lattice tower is located.
Verizon Wireless would have to either lease additional space or negotiate a different
lease. The WCF cannot operate at a lower height and maintain similar wireless
coverage and microwave interconnection without severely impacting Verizon
Wireless' system reliability.
That the Planning Director has determined that the project belongs to a class of projects
that the State Secretary for Resources has found do not have a significant impact on the
environment, and it is therefore categorically exempt from the requirement for the
preparation of environmental documents pursuant to Section 15301, Existing Facilities,
of the state CEQA Guidelines. In making this determination, the Planning Director has
found that the exc~ptions listed in Section 15300.2 of the state CEQA Guidelines do not
apply to this project.
PC RESO NO. 6572 -3-
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Conditions:
1.
2.
3.
4.
5.
If any of the following conditions fail to occur, or if they are, by their terms, to be
implemented and maintained over time, if any of such conditions fail to be so
implemented and maintained according to their terms, the City shall have the right to
revoke or modify all approvals herein granted; deny or further condition issuance of all
future building permits; deny, revoke, or further condition all certificates of occupancy
issued under the authority of approvals herein granted; record a notice of violation on the
property title; institute and prosecute litigation to compel their compliance with said
conditions or seek damages for their violation. No vested rights are gained by Developer
or a successor in interest by.the City's approval of this Conditional Use Permit.
Developer/Operator shall and does hereby agree to indemnify, protect, defend, and hold
harmless the City of Carlsbad, its Council members, officers, employees, agents, and
representatives, from and against any and all liabilities, losses, damages, demands, claims
and costs, including court costs and attorney's fees incurred by the City arising, directly
or indirectly, from (a) City's approval and issuance of this Conditional Use Permit,
(b) City's approval or issuance of any permit or action, whether discretionary or
nondiscretionary, in connection with the use contemplated herein, and
(c) Developer/Operator's installation and operation of the facility permitted hereby,
including without limitation, any and all liabilities arising from the emission by the
facility of electromagnetic fields or other energy waves or emissions. This obligation
survives until all legal proceedings have been concluded and continues even if the City's
approval is not validated.
Staff is authorized and directed to make, or require the Developer to make, all corrections
and modifications to the Conditional Use Permit documents, as necessary to make them
internally consistent and in conformity with the final action on the project. Development
shall occur substantially as shown on the approved Exhibits. Any proposed development,
different from this approval, shall require an amendment to this approval.
Developer shall report, in writing, to the Planning Director within 30 days, any address
change from that which is shown on the permit application.
Approval is granted for CUP 09-04, as shown on Exhibits "A"-"E", dated March 3,
2010 incorporated by reference and on file in the Planning Department.
6. CUP 09-04 shall be reviewed by the. Planning Director annually to determine if all
conditions of this permit have been met and that the use does not have a substantial
negative effect on surrounding properties or the public health, safety and general welfare.
If the Planning Director determines that: 1) the Conditional Use Permit was obtained by
fraud or misrepresentation; or 2) the use for which such approval was granted is not being
exercised; or 3) the Conditional Use Permit is being or recently has been exercised
contrary to any of the terms or conditions of approval or the conditions of approval have
not been met; or 4) the use for which such approval was granted has ceased to exist or has
been suspended for one year or more; or 5) the use is in violation of any statute,
ordinance, law or regulation; or 6) the use permitted by the Conditional Use· Permit is
being or has been so exercised as to be detrimental to the public health, safety or welfare
PC RESO NO. 6572 -4-
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7.
8.
9.
10.
11.
I2.
or so as to constitute a nuisance, the Planning Director shall recommend that the Planning
Commission hold a public hearing and after providing the permittee the opportunity to be
heard, the Planning Commission may revoke and terminate the Conditional Use Permit in
whole or in part, reaffirm the Conditional Use Permit, modify the conditions or impose
new conditions.
This Conditional Use Permit is granted from March 3, 2010 for a period of ten (10)
years through March 2, 2020. This permit may be revoked at any time after a public
hearing, if it is found that the use has a substantial detrimental effect on surrounding land
uses and the public's health and welfare, or the conditions imposed herein have not been
met. This permit may be extended for a reasonable period of time not to exceed ten years
upon written application of the permittee made no less than 90 days prior to the
expiration date. The Planning Commission may not grant such extension, unless it finds
that there are no substantial negative effects on surrounding land uses or the public's
health and welfare. If a substantial negative effect on surrounding land uses or the
public's health and welfare is found, the extension shall be denied or granted with
conditions which will eliminate or substantially reduce such effects. There is no limit to
the number of extensions the Planning Commission may grant.
The maximum number of antennas allowed on this tower shall be fifty-six (56) and
shall consist of a maximum of thirty (30) directional (panel) antennae, a maximum
of 6 omni-directional (whip) antennas, and a maximum of twenty (20) digital (dish)
antennas. These dishes may have varying locations on the tower as needed to
perform their functions. However, the dish antenna may be placed on the tower at a
height no lower than 55 feet on centerline from the ground. No antennas beyond
this number are allowed without a CUP amendment.
All maintenance of the site is to be performed during daylight hours only, except in
the case of an emergency.
The applicant shall maintain a six-foot high chain link fence around the site
perimeter.
The applicant shall submit and obtain Planning Director approval of a landscape
and irrigation plan that includes additional landscaping to soften the appearance of
the base of the facility and to further attenuate noise. The plan shall be in
conformance with the City's Landscape Manual and comply with all Fire
Prevention requirements for landscaping within any required fire suppression
buffer area. The plan shall be submitted within 6 months of the date of approval
for the conditional use permit. The applicant shall construct and install all landscaping
and irrigation as shown on the approved Final Plans within 6 months from the date the
plans are approved, and maintain all landscaping in a healthy and thriving condition,
free from weeds, trash, and debris.
The applicant shall submit and obtain Planning Director approval of a safety plan
that deters persons from entering the facility and gaining access to the tower
PC RESO NO. 6572 -5-
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structure. The Planning Director shall obtain the recommendations of
representatives of the Police Department on the applicant's proposed plan. The
plan shall be submitted within 6 months of the date of approval for the conditional
use permit. The applicant shall make all improvements included in the approved
safety plans within 6 months from the date the plans are approved.
Engineering:
13. Developer shall comply with the City's Storm water Regulations, latest version, and shall
implement best management practices at all times. Best management practices include
but are not limited to pollution treatment practices or devices, erosion control to prevent
silt runoff during construction, general housekeeping practices, pollution prevention and
educational practices, maintenance procedures, and other management practices or
devices to prevent or reduce the discharge of pollutants to storm water, receiving water or
storm water conveyance system to the maximum extent practicable. Developer shall
notify prospective owners and tenants of the above requirements.
NOTICE
Please take NOTICE that approval of your project includes the "imposition" of fees, dedications,
reservations, or other exactions hereafter collectively referred to for convenience as
"fees/exactions."
You have 90 days from date of final approval to protest imposition of these fees/exactions. If
you protest them, you must follow the protest procedure set forth in Government Code Section
66020(a), and file the protest and any other required information with the City Manager for
processing in accordance with Carlsbad Municipal Code Section 3.32.030. Failure to timely
follow that procedure will bar any subsequent legal action to attack, review, set aside, void, or
annul their imposition.
You are hereby FURTHER NOTIFIED that your right to protest the specified fees/exactions
DOES NOT APPLY to water and sewer connection fees and capacity charges, nor planning,
zoning, grading, or other similar application processing or service fees in connection with this
project; NOR DOES IT APPLY to any fees/exactions of which you have previously been given a
NOTICE similar to this, or as to which the statute of limitations has previously otherwise
expired.
PC RESO NO. 6572 -6-
Page 763
EXHIBIT C
DESCRIPTION OF "PREMISES"
(See attached Site Plans)
Licensee Site Name: Squires Dam (Merrkel Reservoir)
Page 770
EXHIBITD
DESCRIPTION OF "PREMISES"
(See Site Plans and Legal Description)
Licensee Site Name: Squires Dam (Merrkel Reservoir)
Page 774
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Page 781
PROPOSED SOUTH FIBER EASEMENT:
AN EASEMENT FOR FIBER PURPOSES OVER A STRIP OF LAND 5.00 FEET WIDE, OVER A
PORTION OF LOT "C" OF RANCHO AGUA HEDIONDA, IN THE CITY OF CARLSBAD, COUNTY OF
SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 823, FILED IN THE
OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, NOVEMBER 16, 1896, THE
CENTERLINE BEING DESCRIBED AS FOLLOWS:
COMMENCING AT THE SOUTHWESTERLY CORNER OF LOT 505 OF VISTA TRACT NO. 85-7,
ACCORDING TO MAP NO. 11714, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAID
COUNTY; THE WESTERLY LINE OF SAID LOT 505 HAVING A BEARING OF NORTH 04°27'32" WEST,
WITH ALL BEARINGS HEREIN RELATIVE THERETO; THENCE, NORTH 87.07'45" WEST, A
DISTANCE OF 33.71 FEET TO A POINT ON AN EXISTING TELECOMMUNICATION LEASE AREA,
SAID POINT BEING THE POINT OF BEGINNING; THENCE ACROSS THE LANDS OF SAID LOT ·c·
THE FOLLOWING FIVE (5) COURSES:
1) SOUTH 21 .24'18" EAST, A DISTANCE OF 172.43 FEET; THENCE,
2) SOUTH 12°16'59" WEST, A DISTANCE OF 112.59 FEET; THENCE,
3) SOUTH 03°28'06" EAST, A DISTANCE OF 213.44 FEET; THENCE,
4) SOUTH 40°28'00" EAST, A DISTANCE OF 11.96 FEET; THENCE,
5) NORTH 86°33'43" EAST, A DISTANCE OF 12.22 FEET TO AN EXISTING HANDHOLE AND
POINT OF TERMINATION.
ALL AS SHOWN ON EXHIBIT "B" ATIACHED HERETO AND BY THIS REFERENCE MADE A PART
HEREOF.
SUBJECT TO COVENANTS, CONDITIONS, RESERVATIONS, RESTRICTIONS, RIGHTS OF WAY AND
EASEMENTS OF RECORD, IF ANY.
PREPARED BY:
FLOYD SURVEYING
David A. Floyd, PLS #7676
6108120/6
Date:
Page 782
EXHIBITE
CELL SITE HARD/SOFT KEY ACCESS REQUEST FORM
(See Attached)
Licensee Site Name: Squires Darn (Merrkel Reservoir)