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HomeMy WebLinkAboutPacific Bell Wireless LLC; 2001-03-21;i LICENSE AGREEMENT (Pacific Bell Wireless Services) This Agreement is made between the City of Carlsbad (“City”), a municipal LLC, corporation, hereinafter referred to as “Licenser”, and Pacific Bell Wireless Service, a Nevada limited liability company I . m I hereinafter referred to as “Licensee” commencing , March 21 200,l. RECITALS 1. The Licenser is the owner of real property more specifically identified as Assessor’s Parcel No. 167-101-34 & 35 on a 16 acre site, commonly known as the 4 Calavera Hills Community Park Site, and hereinafter referred to as the “Property”. 2. The Licenser now uses the Property for recreational and administrative uses. 3. The Property is adequate in size to allow the installation of ground- mounted equipment, equipment enclosures and panel type antennas on a sports field light pole located in the northerly half of the property thereto by Licensee. 4. Licensee is desirous of installing ground-mounted equipment, equipment enclosures and panel type antennas on a sports field light pole located in the northerly half of the property thereto on the Property. 5. The Licenser is willing to allow Licensee to install ground-mounted equipment, equipment enclosures and panel type antennas on a sports field light pole located in the northerly half of the property thereto under certain terms and conditions. 1 O/l 2/00 -1 - NOW, THEREFORE, IT IS AGREED AS FOLLOWS: Licenser hereby grants to Licensee a license to use the portion of the property that is depicted in Attachment “I” hereto (the “premises”) for the purposes and subject to the agreement and terms and conditions set forth herein: LICENSEE’S OBLIGATIONS Licensee agrees to do the following: 1. Use the Property for the purpose of installing ground-mounted equipment, equipment enclosures and panel type antennas on a sports field light pole located in the northerly half of the property as described in CUP 00-17 (Attachment “II”). A security fence, consisting of chain link construction or similar but comparable construction, shall be placed around the perimeter of the facilities of Licensee. All improvements shall be at Licensee’s expense. Licenser will maintain the property in a reasonable condition. 2. (a) Be responsible for installing any equipment, at expense of Licensee, to eliminate any interference that might be caused by the location of its radio transmitting or telecommunications facilities, or modifications thereto, with existing equipment of all parties, including but not limited to the Calavera Hills Communication System already on the Property at the commencement of this license agreement. (b) Licenser reserves the right to enter into agreements with other parties, including but not limited to mobile/wireless communication carriers (hereinafter “Carriers”) for use of the Calavera Hills Community Park site. In the event that an additional Carrier is licensed to use the site it shall be the new Carrier’s responsibility, at its expense, to ensure that such installation is constructed and operated in accordance 1 O/l 2/00 -2 - with applicable regulations issued by the Federal Communications Commission (“FCC”), if any and shall ensure that its facilities do not interfere with Licensee’s facilities. If Licenser approves Carriers plans and specifications, Licenser shall notify Licensee in writing as to the scheduled date and time of commencement of construction and installation of Carriers equipment not less than ten (10) business days prior to such date. Any change to the additional Carrier’s approved antenna type and location and/or change in transmitter types and power output shall be made compatible with Licensee at Carrier’s sole expense. 3. Be responsible for maintenance of any equipment and facilities installed on the premises by Licensee. 4. Be responsible for its own equipment. Provide fire, theft and extended coverage insurance for the equipment and facilities installed for Licensee. 5. (a) Be responsible for securing any necessary permits or conditional use permits from any governmental agency to install any facilities of Licensee on the Property. Licensee may substitute, modify and/or add to its communication/transmitting antenna system located on the Property from time to time, provided that Licensee first obtains any and all required governmental approvals for such substitution, modification and/or addition and the approval of Licenser. Any change to Licensee’s approved antenna 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 Licenser, Licensee shall notify all other Carriers in writing as to the scheduled date and time of commencement of construction or installation of Licensee’s modified equipment not less than ten (10) business days prior to such date. 1 O/l 2/00 -3 - (b) It is understood and agreed that Licensee’s ability to use and/or protect its interest in the Property is dependent upon Licensee obtaining all of the certificates, permits and other approvals which may be required from any federal, state or local authority, and any easements which are required from any third parties. Licenser shall cooperate with Licensee in its efforts to obtain such approvals and/or easements, as may be required for Licensee facility as initially configured and approved in CUP 00-17. If (i) any application and/or negotiations by Licensee for any such certificate, permit, license, easement, approval, policy of title insurance, or agreement is finally denied, rejected and/or terminated, (ii) any such certificate, permit, license, easement, approval or agreement is canceled, or expires, or lapses or is otherwise withdrawn or terminated, (iii) any Hazardous Materials are discovered or otherwise become located on the Property, other than as a direct result of Licensee’s activities thereon, or (iv) due to technological changes, Licensee determines that it is no longer practical to use the Premises for Licensee’s intended purposes, then Licensee shall have the right to terminate this License Agreement, which termination shall be effective no sooner than one hundred eighty (180) days from delivery of written notice from Licensee to Licenser provided Licensee has removed all of its property and equipment from the premises by that time. 6. Be responsible for all utilities and any property taxes imposed as a result of the use of the Property by Licensee. 7. (a) Licensee understands and agrees that this licensing agreement may be revoked at any time in the future if Licenser determines for any reason at any time in the future that this license agreement is not in the best interest of Licenser, notwithstanding any investment of Licensee in improving the property for its use. 1 O/l 2/00 -4 - The determination of license revocation shall be within the sole discretion of Licenser. In the event Licenser revocation of a license is not due to a breach by Licensee of one of the conditions or obligations provided for in this agreement, Licenser shall give Licensee written notice of the necessity of removal of the said facilities one hundred eighty (180) calendar days prior to the effective date of the removal. Such removal shall be at the expense of Licensee. (b) If this license is revoked by Licenser due to a breach by Licensee of one of its obligations herein, the revocation shall be effective forty-five (45) calendar days from the date of delivery of the notice of revocation and Licensee shall remove all of its personal property and equipment from the Property by that time or Licenser may remove it and charge Licensee for the cost of removal. 8. If upon expiration or termination of this agreement Licensee remains on the Property, Licensee shall pay a fee at two times the then existing monthly rate until such time as Licensee vacates the premises by removal of its personal property and fixtures. 9. Exercise due diligence in utilizing the Property of Licenser so as to not interfere with utilization of the Property by Licenser, and Licensee agrees to comply with any rules and regulations that the Licenser may promulgate at any time in reference to utilization of the Property by any party other than Licenser. It is understood by Licensee that the Property is used by Licenser as recreation and administration activities and as a part of the administration and recreation system of Licenser and that it is necessary to maintain adequate security at all times for the primary utilization of the Property by Licenser. 10. Pay to Licenser without abatement, deduction or offset the following fee on or before the first day of each month of this agreement: 1 O/l 2/00 -5 - (a) One thousand five hundred ($1,500) dollars per month for the first year of this agreement. (b) Commencing on the anniversary date of this Licensing Agreement in years 2, 3, 4 and 5, said monthly fee shall increase as follows if the license is still in effect: Year 2: Year 3: Year 4: Year 5: One thousand five hundred and forty-five ($1,545) dollars and per month. One thousand five hundred and ninety-one ($1,591) dollars and per month. One thousand six hundred and thirty-nine ($1,639) dollars and per month. One thousand six hundred and eighty-eight ($1,688) dollars and per month. Monthly fees may be pro-rated as required. If Licenser desires to continue this license beyond five years, the fee amount shall be renegotiated at that time. (c) If any of the monthly fee payments are not received by Licenser by the 10th day of the month in which they are due, the fee shall be deemed delinquent and a ten (10) percent penalty on the sum owing shall accrue on the late payment. If Licensee should become delinquent on the fee for two or more months in any twelve month period, Licenser may revoke this agreement forthwith and demand removal of all personal property within ten (10) days, or remove such property itself and charge Licensee for the cost of removal. 11. (a) Waive all claims against Licenser for any damages to the personal property and equipment of Licensee in, upon or about the Property and for injuries to any employees of Licensee or their agents in or about the Property from any cause arising at any time, and Licensee will hold Licenser exempt and harmless from any damage or injury to any person, or any property, arising from the use of the Property by Licensee, or from the failure of Licensee to keep the equipment and facilities in good condition and repair, as 1 O/l 2/00 -6 - herein provided. The above waiver and hold harmless will not apply, however, to any claims arising from the sole negligence or willful misconduct of Licenser. (b) Licensee indemnification shall include any and all costs, expenses, attorneys fees and liability incurred by Licenser, its officers, agents, or employees in defending against such claims, whether the same proceed to judgment or not. (c) Licensee shall at its own expense, upon written request by Licenser, defend any such suit or action brought against Licenser, its officers, agents or employees. Licensee indemnification of Licenser shall not be limited by any prior or subsequent declaration by Licensee. 12. Licensee agrees and hereby stipulates that the proper venue and jurisdiction for resolution of any disputes between the parties arising out of this agreement is San Diego County, California. 13. Bond or Other Security. Prior to the commencement of any work under this License, Licensee shall furnish or cause to be furnished to Licenser a good and sufficient bond, substantially in the form attached hereto as Attachment “I” entitled Surety Bond, in the amount of $50,000 or such other comparable security instrument as may be approved by the City Attorney or Risk Manager, securing the faithful performance by Licensee of all of the work, construction, installation, and removals required to be performed by Licensee under this License within the time periods set forth hereunder. If Licensee furnishes a surety bond, the bond shall be obtained from a surety admitted and authorized to do business in the State of California. The insurance carrier is required to have a current Best’s Key Rating of not less than “A-V” and shall meet Licenser’s policy for insurance as stated in City Council Resolution No. 91-403. 1 O/l 2/00 -7 - 14. Obtain and maintain for the duration of the contract insurance against claims for injuries to persons or damage to property which may arise out of or in connection with this agreement, its agents, representatives, employers or subcontractors. Said insurance shall be obtained from an .insurance carrier admitted and authorized to do business in the State of California. The insurance carrier is required to have a current Best’s Key Rating of not less than “A-:V” and shall meet Licenser’s policy for insurance as stated in City Council Resolution No. 91-403. (a) Licensee shall maintain the types of coverages and minimum limit indicated herein, unless a lower amount is approved by the City Attorney or City Manager: 1) Comprehensive General Liability Insurance. $1 ,OOO,OOO combined single-limit per occurrence for bodily injury, personal injury and property damage. If the submitted policies contain aggregate limits, general aggregate limits shall apply separately under this contract or the general aggregate shall be twice the required per occurrence limit. 2) Automobile Liability (for the use of an automobile by Licensee’s employees or agents or subcontractors in conjunction with its use of the premises) $1 ,OOO,OOO 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 Labor Code of the State of California and Employer’s Liability limits of $l,OOO,OOO per accident for bodily injury. (b) Licensee shall ensure that the policies of insurance required under this agreement contain, or are endorsed to contain, the following provisions: 1 O/l 2/00 -8 - 1) Licenser shall be designated as an additional insured on all policies excluding Worker’s Compensation. 2) Licensee shall furnish certificates of insurance to Licenser before commencement of work. 3) Licensee shall obtain occurrence coverage. 4) This insurance shall be in force during the life of the agreement and shall not be canceled without thirty (30) days prior written notice to Licenser sent by certified mail. 5) If Licensee fails to maintain any of the insurance coverages required herein, then Licenser will have the option to revoke this license agreement, or may purchase replacement insurance or pay the premiums that are due on existing policies in order that the required coverages may be maintained. Licensee is responsible for any payments made by Licenser to obtain or maintain such insurance and Licenser may collect the same from Licensee or deduct the amount paid from any sums due Licensee under this agreement. 15. Licensee and Licenser agree that they will not use, generate, store or dispose 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 forthwith and pursue any remedies to which it is entitled by law. 1 O/l 2/00 -9 - 16. Licensee understands and acknowledges that assignment, sublicensing or transfer of the license granted herein is absolutely prohibited without the written consent of the Licenser, and any attempt to do so without written consent may result in a revocation of the license at the will of Licenser. LICENSOR’S OBLIGATIONS Licenser agrees to do the following: 1. Allow the installation of a ground-mounted equipment, equipment enclosures and panel type antennas on a sports field light pole located in the northerly half of the property for use of Licensee as approved in Licenser CUP No. 00-17 attached hereto as Attachment “BT 2. Allow reasonable ingress and egress for Licensee to the Property, including access any time in cases of emergency or equipment failure. 3. Be responsible for its own equipment. 4. Grant any necessary temporary easement for as long as this license is in effect, as required for extension of electric and telephone service to the site as specified in Licenser CUP 00-l 7. 5. Allow construction of construction of a power distribution system at the site from existing facilities on the Calavera Hills Community Park site. 6. Permit Licensee ingress and egress to the Property to conduct such surveys, structural strength analysis, subsurface boring tests and other activities of a similar nature as Licensee may deem necessary. All such activities shall be at the sole expense of Licensee. Licensee agrees to hold Licenser and the Property free and harmless from any cost, claims and damages, actual or asserted, including costs of investigation and/or 1 O/l 2/00 -10 - , defense thereto connected in any way with said activities. 7. Licenser and its agents and contractors shall have the right to enter the Premises upon forty-eight (48) hours advance notice to Licensee, during reasonable business hours and when accompanied by personnel of Licensee, for the purpose of making any necessary alterations or repairs as provided in this License Agreement. In the event of an emergency, the notice requirement will be waived. 8. All notices under this License Agreement shall be in writing and, unless otherwise provided herein, shall be deemed validly given if sent by certified mail, return receipt requested, or via recognized overnight courier service, addressed as follows (or to any other mailing address which the party to be notified may designate to the other party by such notice). All notices properly given as provided for in this section shall be deemed to be given on the date when sent. Should Licenser or Licensee have a change of address, the other party shall ‘immediately be notified as provided in this section of such change. With a copy to: PACIFIC BELL WIRELESS SERVICE: CITY OF CARLSBAD: Pacific Bell Wireless Attn: Property Management ,252l Michelle Drive, 2nd floor _ Tustin, CA 92780 405 Oak Avenue Carlsbad, CA 92008 Attn: Douq Duncanson Title: Public Works Manaqer -11 - 1 o/ 12/00 IN WITNESS HEREOF, the parties have executed this agreement by their officers therein duly authorized as of the date and year first written above. PACIFIC BELL WIRELESS, LLC a Nevada limitd liability company Mark Rivera Printed Name/Title Director, Network Deployment By: Signature ORRAINE WOOD, City Clerk Printed Name/Title (Proper notarial acknowledgment of execution by Licensee must be attached. (Chairman, president or vice-president and secretary, assistant secretary, CFO or assistant treasurer must sign for corporations. Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation.) APPROVED AS TO FORM: RONALD R. BALL -12 - 1 O/l 2/00 State of Califow I ss. County of b 1 . On /f3 c /&-@o , before m Date - personally appeared a C personally known to me 3 proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed his/her/their authorized and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. Place Notary Seal Above Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. , Description of Attached D Title or Type of Document: w ’ Document Date: o-/J---- Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer Signer’s Name: q Individual q Corporate Officer - Title(s): 0 Partner - q Limited 0 General 0 Attorney in Fact cl Trustee Cl Guardi flher: Signer Is Representing: 0 1999 Nationa Notaly Associaiim - 9350 De Solo Ave.. P.O. Box 2402 * Chatsworth. CA 91313-2402 - w.nat~onalmtary.o& Prod. No. 5907 Attachment “1 I” The City of Carlsbad Planning Department A REPORT TO THE PLANNING COMMISSION Item No. Application complete date: April 27, 2000 P.C. AGENDA OF: July 19,200O Project Planner: Jason Martin Project Engineer: David Rick SUBJECT: CUP 00-17 - PACIFIC BELL WIRELESS SERVICE/CALAVERA HILLS COMMUNITY PARK - Request for a Conditional Use Permit to allow the installation of base transceiver stations and the placement of six panel antennas mounted on a replacement light pole at Calavera Hills Community Park at the southwest comer of Carlsbad Village Drive and Tamarack Ave, in the Planned Community (PC) Zone in Local Facilities Management Zone 7. I. RECOMMENDATION That the Planning Commission ADOPT Planning Commission Resolution No. 4803 APPROVING CUP 00-17 based on the findings and subject to the conditions contained therein. II. INTRODUCTION This application is a request by Pacific Bell Wireless Services (PBWS) for a conditional use permit (CUP) to allow a Personal Communication System (PCS) facility consisting of ground- mounted equipment, equipment enclosures, and panel type antennas to be mounted on a light pole in Calavera Hills Community Park. Quasi-public utility facilities are permitted in the Planned Community (PC) zone by CUP, and all required conditional use findings can be made for the proposed PCS facility. III. PROJECT DESCRIPTION AND BACKGROUND PBWS proposes to locate a PCS facility at the Calavera Hills Community Park. The Park is a multi-use, 16 acre, City community park consisting of a community center/gymnasium, playground, barbecue and picnic area, two tennis courts, three baseball fields, and associated off- street parking. The proposed facility will consist of six panel type antennas, to be mounted on a replacement light pole which provides lighting for one of the baseball fields, and ground- mounted equipment. The installations will occur in the area generally north of the existing community center/gymnasium building and tennis courts, adjacent to the left field area of the baseball field (i.e. the ball field which is located in the northerly half of the Park). The precise location of the installation is indicated on Sheet A - 1.1 of the set of plans. The replacement light pole is necessitated by the structural load requirements for the combined weight of the ball field lighting fixtures and the new antenna installation. The proposed replacement is 80 feet tall and would be identical to the other ball field light poles in the northerly half of the Park. (A total of 16 ball field light poles are on-site - 6 for the ball field in the northerly half of the Park, and 10 for the 2 ball fields in the southerly half of the Park). The new light pole will be located in the same general location of the existing light pole. The CUP 00- 17 - PACIFIC BELL WIRELESS SERVICE/CALAVERA HILLS COMMUNITY PARK July 19,200O Page 2 antennas are proposed to be attached to the light pole approximately 8 feet below the lighting fixtures and will be approximately 70 feet above the ground. As depicted on the project plans the individual panels will be 2.7” deep, 8.7” wide, and 48” to 73” long. (See Detail 11 on Sheet A- 3.1). The applicant has indicated that a maximum 53” length will be needed (the project has been conditioned that the length of the panel antennas be limited accordingly). A pair of antennas will be mounted on a structural arm which projects 4.5 feet from the pole. The antenna pairs will be placed in three sectors around the light pole. No other types of antennas, or microwave dishes, are proposed. The ground-mounted equipment consists of two (one current, one future) radio equipment cabinets, also known as base transceiver stations (BTS). The equipment is proposed to be located along the north building wall of the community center/gymnasium and within a fully enclosed structure which would be attached to the building wall. The BTS equipment enclosure is approximately 168 square feet in area, 16 feet high as measured to the peak of the roof, and attached to the existing building. Adjacent to the BTS equipment enclosure a second, nearly identical equipment enclosure is proposed. The location and size of doors on the two buildings distinguishes them. The second equipment enclosure is being provided by PBWS for the use of the Recreation Department. Some degree of architectural integration is proposed for the equipment enclosures. To provide better integration, a condition of approval requires the proposed enclosures to be stuccoed, and designed with a colored accent band, to match other architectural building projections on the existing building. The proposed project is subject to the following regulations: A. Conditional Use Permit Regulations (Chapter 21.42 of the Carlsbad Municipal Code); B. Growth Management. IV. ANALYSIS Staffs recommendation of approval for this conditional use was developed by analyzing the project’s consistency with the applicable City regulations and policies. This analysis will present in text the project’s consistency with the applicable regulations listed below: A. Conditional Use Permit Regulations Conditional land uses such as PCS communication facilities possess unique and special characteristics which make it impractical to include them as permitted uses “by right” in any of the various zoning classifications (i.e., open space, residential, commercial, office, and industrial). The authority for the location and operation of these uses is subject to Planning Commission review and the issuance of conditional use permits. The following required conditional use permit findings for the proposed PCS facility can be made: 1. The proposed use is: a) necessary and desirable for the development of the community in that the community benefits of wireless communications include improved CUP 00- 17 - PACIFIC BELL WIRELESS SERVICEKALAVERA HILLS COMMUNITY PARR July 19,200O telecommunications service for emergency services and individuals; b) consistent with the General Plan in that the Open Space (0) land use designation does not preclude the provision of quasi-public utility uses; and c) not detrimental to permitted uses in the Planned Community zone in that the use is integrated into a proposed replacement light pole and requires no significant changes to the site design or function; 2. The proposed site is adequate in size and shape to accommodate the use in that the antennas would be mounted on a replacement light pole and the equipment enclosure is located in a non-activity, landscaped area; 3. All features necessary to adjust the requested use to the existing use are provided in that the antennas are painted to match the light standard and the BTS is within an equipment enclosure which will be architecturally integrated with the main building; and 4. The street system serving the proposed use would not be significantly impacted by the proposed conditional use in that additional vehicle trips are limited to occasional equipment maintenance by service personnel. B. Growth Management The proposed site is located within Local Facilities Management Plan Zone 7. The installation of the antennas on the fight pole and the equipment cabinets on the ground will not result in increased public facilities demands and therefore, the project will not impact performance standards for public facilities. V. ENVIRONMENTAL REVIEW The installation o’f small new equipment is a Class 3 Categorical Exemption under the California Environmental Quality Act (Guidelines Section 15303). PBWS is licensed by the FCC to receive and transmit by radio waves operating in the 1850- 1990 MHz frequency block. The FCC requires compliance with radio frequency power density standards (ANSI/IEEE C95. l- 1992) for the general public. The project would not have a significant impact on the environment. ATTACHMENTS: 1. Planning Commission Resolution No. 4803 (CUP) 2. Location Map 3. Background Data Sheet 4. Disclosure Statement 5. Exhibits “A” - “I” dated July 19,200O JMXS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 PLANNING COMMISSION RESOLUTION NO. 4803 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF CARLSBAD, CALIFORNIA, APPROVING A CONDITIONAL USE PERMIT TO ALLOW A PERSONAL COMMUNICATION SERVICE FACILITY ON THE CALAVERA HILLS COMMUNITY PARR SITE LOCATED AT THE SOUTHWEST CORNER OF THE INTERSECTION OF CARLSBAD VILLAGE BOULEVARD AND TAMARACK AVENUE IN LOCAL FACILITIES MANAGEMENT ZONE 7. CASE NAME: PACIFIC BELL WIRELESS SERVICE/ CALAVERA HILLS COMMUNITY PARR CASE NO.: CUP 00-17 WHEREAS, Pacific Bell Wireless Service (PBWS), “Developer,” has filed a verified application with the City of Carlsbad regarding property owned by the City of Carlsbad, “Owner,” described as Portions of Lots “D,” “ E,” and “J” of Ranch0 Agua Hedionda, in the City of Carlsbad, County of San Diego, State of California, according to Map No. 823 filed in the Offrce of the County Recorder of San Diego County on November 16,1896. (“the Property”); and WHEREAS, said verified application constitutes a request for a Conditional Use Permit as shown on Exhibits “A”- “I” dated July 19, 2000, on file in the Carlsbad Planning Department, PACIFIC BELL WIRELESS SERVICEKALAVERA HILLS COMMUNITY PARR - CUP 00-17, as provided by Chapter 21.42 of the Carlsbad Municipal Code; and WHEREAS, the Planning Commission did, on the 19th day of July, 2000, 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 Conditional Use Permit. NOW, THEREFORE, BE IT HEREBY RESOLVED by the Planning 28 Commission of the City of Carlsbad as follows: . 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A) B) That the foregoing recitations are true and correct. That based on the evidence presented at the public hearing, the Commission APPROVES PACIPIC BELL WIRELESS SERVICEKALAVERA HILLS COMMUNITY PARK - CUP 00-17, based on the following findings and subject to the following conditions: Pindines: 1. 2. 3. 4. 5. 6. That the requested use is necessary or desirable for the development of the community, is essentially in harmony with the various elements and objectives of the General Plan, and is not detrimental to existing uses specifically permitted in the zone in which the proposed use is located, in that the community benefits of wireless communications include improved telecommunications service for emergency services and individuals; the use is integrated into a light pole aud requires no significant changes to the site design or function; the site’s land use designation does not preclude the provision of quasi-public utility uses; and the installation will not interfere with park activities. That the site for the intended use is adequate in size and shape to accommodate the use, in that the installation will not interfere with park activities since the antenna would be mounted on a proposed replacement light pole and the equipment enclosure is located in a non-activity, landscaped area. That all the yards, setbacks, walls, fences, landscaping, and other features necessary to adjust the requested use to existing or permitted future uses in the neighborhood will be provided and maintained, in that the antennas are painted to match the light pole and the base transceiver station (BTS) is within an equipment enclosure which will be architecturally integrated with the main building. That the street system serving the proposed use is adequate to properly handle all traffic generated by the proposed use, in that the proposed use would not generate significant additional vehicle trips beyond that necessary for occasional maintenance. The Planning Commission has reviewed each of the exactions imposed on the Developer contained in this resolution, and hereby finds, in this case, that the exactions are imposed to mitigate impacts caused by or reasonably related to the project, and the extent and the degree of the exaction is in rough proportionality to the impact caused by the project. That the Planning Director has determined that the project belongs to a class of projects that the State Secretary for Resources has found do not have a significant impact on the environment, and it is therefore categorically exempt from the requirement for the preparation of environmental documents pursuant to Section 15303, installation of small new equipment and facilities in small structures, of the state CEQA Guidelines. In making this determination, the Planning Director has found that the exceptions listed in Section 15300.2 of the state CEQA Guidelines do not apply to this project. PC RESO NO. 4803 -2- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Conditions: Note: Unless otherwise specified herein, all conditions shall be satisfied prior to building I permit issuance. - 1. 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; 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. 2. 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. 3. The Developer shall comply with all applicable provisions of federal, state, and local ordinances in effect at the time of building permit issuance. 4. If any condition for construction of any public improvements or facilities, or the payment of any fees in-lieu thereof, imposed by this approval or imposed by law on this Project are challenged, this approval shall be suspended as provided in Government Code Section 66020. If any such condition is determined to be invalid this approval shall be invalid unless the City Council determines that the project without the condition complies with all requirements of law. 5. The Developer/Operator shall and does hereby agree to indemnify, protect, defend and hold harmless the City of Carlsbad, its Council members, officers, employees, agents, and representatives, from and against any and all liabilities, losses, damages, demands, claims and costs, including court costs and attorney’s fees incurred by the City arising, directly or indirectly, from (a) City’s approval and issuance of this Conditional Use Permit, (b) City’s approval or issuance of any permit or action, whether discretionary or non- discretionary, in connection with the use contemplated herein, and (c) Developer/Operator’s installation and operation of the facility permitted hereby, including without limitation, any and all liabilities arising from the emission by the facility of electromagnetic fields or other energy waves or emissions. 6. The Developer shall submit to the City a reproducible 24” x 36”, mylar copy of the Site Plan reflecting the conditions approved by the final decision making body. 7. This project shall comply with all conditions and mitigation measures which are required as part of the Zone 7 Local Facilities Management Plan and any amendments made to that Plan prior to the issuance of building permits. 11 PC PESO NO. 4803 -3- . 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8. A. This Conditional Use Permit shall be reviewed by the Planning Director on a yearly basis to determine if all conditions of this permit have been met and that the use does not have a substantial negative effect on surrounding properties or the public health and welfare. If the Planning Director determines that the use has such substantial negative effects, the Planning Director shall recommend that the Planning Commission, after providing the permittee the opportunity to be heard, add additional conditions to reduce or eliminate the substantial negative effects. B. This Conditional Use Permit is granted for a period of 5 years. This permit may be revoked at any time after a public hearing, if it is found that the use has a substantial detrimental effect on surrounding land uses and the public’s health and welfare, or the conditions imposed herein have not been met. This permit may be extended for a reasonable period of time not to exceed 5 years upon written application of the permittee made no less than 90 days prior to the expiration date. The Planning 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. 9. The Developer/Operator shall comply with ANSI/IEEE standards for EMF emissions. Within six (6) months after the issuance of occupancy, the Developer/Operator shall submit a project implementation report which provides cumulative field measurements of radio frequency (EMT?) power densities of all antennas installed at the subject site. The report shall quantify the EMF emissions and compare the results with currently accepted ANSI/IEEE standards. Said report shall be subject to review and approval by the Planning Director for consistency with the Project’s preliminary proposal report and the accepted ANSI/IEEE standards. If on review, the City finds that the Project does not meet ANSI/IEEE standards, the City may revoke or modify this conditional use permit. 10. Developer shall submit to the City a Notice of Restriction to be filed in the office of the County Recorder, subject to the satisfaction of the Planning Director, notifying all interested parties and successors in interest that the City of Carlsbad has issued a(n) Conditional Use Permit by Resolution(s) No. on the real property owned by the Developer. Said Notice of Restriction shall note the property description, location of the file containing complete project details and all conditions of approval as well as any conditions or restrictions specified for inclusion in the Notice of Restriction. The Planning Director has the authority to execute and record an amendment to the notice which modifies or terminates said notice upon a showing of good cause by the Developer or successor in interest. 11. Individual panel antennae approved under CUP 00-17 shall not exceed a length of fifty-three (53) inches. 12. The applicant shall submit exhibits which demonstrate, to the satisfaction of the Planning Director, that the exterior of the equipment enclosures approved under CUP 00-17 shall be further architecturally integrated with the main building PC RESO NO. 4803 -4- 1 2 through the use of stucco exterior finish, accent treatments similar to those of the main building, and paint. 3 II Engineering: 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 13. The developer shall pay all current fees and deposits required. 14. The BTS equipment shall not be constructed on any easement without the easement holder’s permission. 15. The BTS equipment shall not be constructed in any drainage area or over any drainage structure. 16. This approval shall become null and void if building permits are not issued for this project within 18 months from the date of project approval. Code Reminders: 17. Developer shall pay the License Tax on new construction imposed by Carlsbad Municipal Code Section 509.030, and CFD #I special tax (if applicable), and the Citywide Public Facilities Fee imposed by City Council Policy #17, subject to any credits authorized by Carlsbad Municipal Code Section 5.09.040. Developer shall also pay any applicable Local Facilities Management Plan fee for Zone 7, pursuant to Chapter 21.90. All such taxes/fees shall be paid at issuance of building permit. If the taxes/fees and not paid, this approval will not be consistent with the General Plan and shall become void. 18. Approval of this request shall not excuse compliance with all applicable sections of the Zoning Ordinance and all other applicable City ordinances in effect at time of building permit issuance, except as otherwise specifically provided herein. 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 1 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, OI annul their imposition. 27 28 You are hereby FURTHER NOTIFIED that your right to protest the specified fees/exaction: 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 thi: project; NOR DOES IT APPLY to any fees/exactions of which you have previously been giver PC RESO NO. 4803 -5- OCT-12-2000 TM U3:55 PM , * ~ ‘I . . 1 2 3 4 5 6 7 a 9 IO Ii 12 13 I4 1: 1t 1: II l? 2i 2 2: 2: 24 2 21 2 2 a NOTICE similar to this, or ss to which the statute of limitations has previously otherwise expired PASSED, AppRoVEX? AND ADOPTED at a regular meeting of tk Phumin~ CQI&SSiOn Qf tht City of Carlsbad, California, held ‘on the 19th day of July, 2000, by the following voti, 10 wit; AYE!% NOES: A0Sl3NTt ABSTAIN: CARLSBAD PUNNTNG CiXWiISSfON CITY OF CARLSBAI’I FAX NO, 760 602 8559 P. 07 Chairpcrso~ Ccqas, Commissicks Baker, Heincman, C’He~rcwt, Nicisen, Se@, aud Trigas PC RESO NO. 4803 4% BACKGROUND DATA SHEET CASE NO: CUP 00-17 CASE NAME: Pacific Bell Wireless ServiceKalavera Hills Cotnmunitv Park APPLICANT: Pacific Bell Wireless Service REQUEST AND LOCATION: Personal communication service facility located the Calavera Hills Community Park located at the southeast comer of Carlsbad Village Dr. and Tamarack Ave LEGAL DESCRIPTION: Portions of Lots “D”, “E”. and “J’ of Ranch0 Agua Hedionda, in the Citv of Carlsbad, Countv of San Diego, State of California, according to Man No. 823, filed in the Office of the Countv Recorder of San Diego Countv. November 16.1896 APN: 167-101-34 & 35 Acres: 16 Proposed No. of Lots/Units: N/A GENERAL PLAN AND ZONING Land Use Designation: Open Space Density Allowed: N/A Density Proposed: N/A Existing Zone: Planned Cornmunitv Proposed Zone: No change Surrounding Zoning, General Plan and Land Use: Site Zoning Planned Communitv North Planned Community south Planned Community East Planned Community General Plan Gpen Space Gpen Space & Residential Medium High Open Space Commercial & Residential Medium Residential Low Medium Current Land Use Community Park Undeveloped & Vacant Undeveloped Vacant & Residential West Planned Community Residential PUBLIC FACILITIES School District: Carlsbad Water District: Carlsbad Sewer District: Carlsbad Equivalent Dwelling Units (Sewer Capacity): N/A Public Facilities Fee Agreement, dated: N/A ENVIRONMENTAL IMPACT ASSESSMENT 0 Negative Declaration, issued 0 Certified Environmental Impact Report, dated l.xl Other, Exempt (Section 15303) ATTACHMENT “1” [FORM OF SURETY BOND] SURETY BOND Bond Number: 6080238 DUPLICATE ORIGINAL We Pacific BP-as Principal, andSAFEC0 m, as Surety, jointly and severally, bind ourselves and our heirs, representatives, successors and assigns, as set forth herein, to theCity of Carlsbad “) for payment of (” Obligee the penal sum of Fifty Thousand Dollars and OO/lOO------------- DOliarS ($ 50,000.00 ) lawful money of the United States. Principal is about to enter into a certain agreemen; with Obligee for the following: Mo~le-., the commencement of said agreement to be on October 17, 2000 . THE CONDITION OF THIS OBLIGATION IS SUCH that if the Principal shall in all things abide by and well and truly keep and perform the convenants and terms in the said agreement, and any alteration thereof made as therein provided, on Principal’s part to be kept and performed at the time and in the manner therein specified, and shall indemnify and save harmless the Obliaee and its directors, officers, employees, volunteers and agents, as therein stipulated, this ‘obligation shall become null and void, otherwise, it shall be and remain in full force and effect. Surety agrees that no change, extension of time, alteration, or addition to the tenors of the agreement, or the work to be performed thereunder, or the plans and specifications, or any matters unknown to Surety which might affect Surety’s risk shall in any way affect its obligation on this bond, and it does thereby waive notice thereof. Principal and Surety agree that if the is required to engage the Obligee services of any attorney in connection with the enforcement of this bond, each shall pay ------------------------- reasonable attorney’s fees incurred, with or without suit, in addition to the above sum. J//J JJJI JJB . . . ‘. . . . Executed by PRINCIPAL this- day of, JanUary ,20 01 -* PRINCIPAL: Pacific Bell Wireless, LLC (name of Principal) By: ?-& /cI b-‘++u- (sign kere) v Betsy S. Granger, Ass't Secretary (print name/title) SHERRI VELEZ n (l%p”e;k ri&mli attached. %knowledgment of exect Executed by SURETY this 16th day of JANUARY ,200l * SURETY: SAFECO INSURANCE COMPANY OF AMERICA (name of Surety) Millennium Corporate Plaza 18400 NE Union Hill,Road, Redmond, WA 98052 (address of Surety) 314-621-5540 number of Sur I/ -ET “yfsJg~ (print name of Attorney-in-Fact! (Attach corporate resolution I current power of attorney) Ation by Principal and Surety d Chairman, president or vice-president and secretary, assistant secretary, CFO or assistant treasurer must sign for corporations. Otherwise, the corporation must attach a resolution ceRified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation.) (NOTICE: No alterations or substitutions of this bond form will be accepted. Surety companies, to be acceptable to the , must satisfy one of the following: A. f3e licensed to do business in and have an agent for service of process in California and be on the accredited list of the United States Treasury Department, and their bonds will be limited to such amounts as would be acceptable to the Treasury Department; or B. Satisfy the requirements of California Code of Civil Procedure section 995.660.) SAFECO” POWER OF ATTORNEY SAFECO INSURANCE COMPANY OF AMERICA GENERAL INSURANCE COMPANY OF AMERICA HOME OFFICE: SAFECO Pm SEAi-fLE. WASHINGTON 98185 No. 9672 KNOW ALL BY THESE PRESENTS: That SAFECO INSURANCE COMPANY OF AMERICA and GENERAL INSURANCE COMPANY OF AMERICA, each a Washington corporation, does each hereby appoint *************JULIE K. LONG, ROGER W. WOHLERT; MARK PERSSON; MICHAEL D. WAGNER: RONALD J. WALTON; San Antonio, Texas*********‘******‘******** its true and lawful attorney(s)-in-fact, with full authority to execute on its behalf fidelity and surety bonds or undertakings and other documents of a similar character issued in the course of its business, and to bind the respective company thereby. IN WVNESS WHEREOF, SAFECO INSURANCE COMPANY OF AMERICA and GENERAL INSURANCE COMPANY OF AMERICA have each executed and attested these presents this 1st day of April , 1999 R.A. PIERSON, SECRETARY W. RANDALL STODDARD, PRESIDENT CERTlFlCATE Extract from the By-Laws of SAFECO INSURANCE COMPANY OF AMERICA and of GENERAL INSURANCE COMPANY OF AMERICA: “Article V, Section 13. - FIDELITY AND SURETY BONDS ._. the President, any Vice President, the Secretary, and any Assistant Vice President appointed for that purpose by the officer in charge of surety operations, shall each have authority to appoint individuals as attorneys-in-fact or under other appropriate titles with authority to execute on behalf of the company fidelity and surety bonds and other documents of similar character issued by the company in the course of its business... On any instrument making or evidencing such appointment, the signatures may be affixed by facsimile. On any instrument conferring such authority or on any bond or undertaking of the company, the seal, or a facsimile thereof, may be impressed or afrixed or in any other manner reproduced; provided, however, that the seal shall not be necessary to the validity of any such instrument or undertaking.” Extract from a Resolution of the Board of Directors of SAFECO INSURANCE COMPANY OF AMERICA and of GENERAL INSURANCE COMPANY OF AMERICA adopted July 28, 1970. “On any certificate executed by the Secretary or an assistant secretary of the Company setting out, (i) The provisions of Article V, Section 13 of the By-Laws, and (ii) A copy of the power-of-attorney appointment, executed pursuant thereto, and (iii) Certifying that said power-of-attorney appointment is in full force and effect, the signature of the certifying officer may be by facsimile, and the seal of the Company may be a facsimile thereof.” I, R.A. Pierson, Secretary of SAFECO INSURANCE COMPANY OF AMERICA and of GENERAL INSURANCE COMPANY OF AMERICA, do hereby certify that the foregoing extracts of the By-Laws and of a Resolution of the Board of Directors of these corporations, and of a Power of Attorney issued pursuant thereto, are true and correct, and that both the By-Laws, the Resolution and the Power of Attorney are still in full force and effect. IN WITNESS WHEREOF, I have hereunto set my hand and affixed the facsimile seal of said corporation this 16th day of JANUARY ,200l RA. PIERSON, SECRETARY S-0974/SA;F 7/98 -“~I.,.,,,,..’ 8 Registered trademark of SAFECO Corporation. 4/l/99 PDF .s . . t L c L : State of Texas County of Bexar }ss: On January 16, 2001, before me, a Notary Public in and for said County and State, residing therein, duly commissioned and sworn, personally appeared JULIE K. LONG, known to me to be Attorney-in-Fact of SAFECO INSURANCE COMPANY OF AMERICA the corporation described in and that executed the within and forgoing instrument, and known to me to be the person who executed the said instrument in behalf of the said corporation, and she/he duly acknowledged to me that such corporation executed the same. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal, the day and year stated in this certificate above.