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HomeMy WebLinkAbout2010-04-06; Municipal Water District; 714; License Agreement with STC One LLC for Continuation of a Wireless Communications Facility Ellery ReservoirCARLSBAD MUNICIPAL WATER DISTRICT - AGENDA BILL 1 4 AB# MTG. 714 4/6/10 DEPT. UTIL LICENSE AGREEMENT WITH STC ONE, LLC FOR CONTINUATION OF A WIRELESS COMMUNICATIONS FACILITY AT THE ELLERY RESERVOIR SITE DEPT. DIRECTOR GENERAL COUNSEL CITY MANAGER RECOMMENDED ACTION: Adopt Resolution No.1392 authorizing the President of the Carlsbad Municipal Water District to execute the License Agreement between the Carlsbad Municipal Water District and STC One, LLC for continuation of a wireless communications facility at the Ellery Reservoir Site. ITEM EXPLANATION: The wireless communications facility has been in place at Ellery Reservoir since January 1997. The most recent license agreement expired in August 2006 with the expiration of Conditional Use Permit, CUP 96-06A. The wireless communications facility's current Minor Conditional Use Permit, MCUP 08-01, was approved in August 2006 and will expire in August 2016. The applicant has continued to operate under the provisions of the expired license agreement during the time period that it has taken to negotiate the proposed new license agreement. Per Carlsbad City Council Policy No. 64, "Collocating with existing or other planned wireless communication facilities is recommended whenever feasible." While this License Agreement contains language addressing collocation of additional wireless communication facilities, MCUP 08-01 does not currently allow for a collocated wireless communications facility. Future collocation will only be authorized with an approved amendment to MCUP 08-01 and with an amendment to this License Agreement made to reflect the appropriate MCUP approval. FISCAL IMPACT: This License Agreement will generate License Fee revenue of $2,974 per month or $35,688 in the first year. Future annual increases will be set at the percentage increase in the Consumer Price Index - All Urban Consumers for the San Diego MSA. The minimum annual increase will be three (3) percent, but in no case more than six (6) percent. DEPARTMENT CONTACT: Karen Chen 760-602-2744 karen.chen@carlsbadca.gov FOR CITY CLERKS USE ONL Y. BOARD ACTION: APPROVED J& DENIED D CONTINUED D WITHDRAWN D AMENDED D CONTINUED TO DATE SPECIFIC D CONTINUED TO DATE UNKNOWN D RETURNED TO STAFF D OTHER-SEE MINUTES D Page 2 "LICENSE AGREEMENT WITH STC ONE, LLC, FOR CONTINUATION OF USE OF ITS WIRELESS COMMUNICATIONS FACILITY AT ELLERY RESERVOIR SITE" ENVIRONMENTAL IMPACT: The Planning Director has determined that the project is exempt from the California Environmental Quality Act, pursuant to Section 15301 of the CEQA Guidelines. Section 15301 exempts projects or activities that consist of leasing of existing public facilities involving no expansion of use. This License Agreement does not expand the current use. Lease of public property for operation of a wireless communications facility, and no other plan for development of that property, is such an activity. EXHIBITS: 1. Resolution No. 1392 2. License Agreement Between the Carlsbad Municipal Water District and STC One, LLC 1 RESOLUTION NO. 1392 2 A RESOLUTION OF THE BOARD OF DIRECTORS OF CARLSBAD MUNICIPAL WATER DISTRICT (CMWD), 3 AUTHORIZING THE PRESIDENT TO EXECUTE THE LICENSE AGREEMENT BETWEEN THE CARLSBAD 4 MUNICIPAL WATER DISTRICT AND STC ONE, LLC FOR CONTINUED USE OF ELLERY RESERVOIR FOR ITS 5 WIRELESS COMMUNICATIONS FACILITY 6 WHEREAS, the wireless communications facility at Ellery Reservoir has been operational since 1997; and 9 WHEREAS, the wireless communications facility's Minor Conditional Use Permit 10 (MCUP 08-01) was approved in August 2006 and will expire in August 2016; and 11 WHEREAS, STC One, LLC has executed a new License Agreement with the 12 Carlsbad Municipal Water District for continued use of the site for its wireless communications facility; and 14 WHEREAS, the new License Agreement contemplates future collocation of wireless communication facilities which is consistent with Carlsbad City Council Policy No. 64; and WHEREAS, collocation will only be authorized through an approved amendment to 17 MCUP 08-01 and through an amendment to this License Agreement made to reflect the 18 appropriate MCUP approval; and 19 NOW, THEREFORE, BE IT RESOLVED by the Carlsbad Municipal Water District 20 Board, as follows: 21 1. That the above recitations are true and correct. 23 2. That the President is hereby authorized to execute two originals of the License 24 Agreement between the Carlsbad Municipal Water District and STC One, LLC. 25 3. That the term of the License shall coincide with the term of MCUP 08-01. 26 /// 27 /// 28 /// 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 PASSED, APPROVED AND ADOPTED at a Special Meeting of the Board of Directors of the Carlsbad Municipal Water District of the City of Carlsbad on the 6th day of April, 2010, by the following vote: AYES: Board Members Lewis, Kulchin, Packard and Blackburn. NOES: None. ABSENT: Board Member Hall. ATTEST: LORRAINE MyWOOPf Secrete? (SEAL) WIRELESS TELECOMMUNICATIONS FACILITY CARLSBAD MUNICIPAL WATER DISTRICT LICENSE AGREEMENT This License Agreement ("Agreement") is made between the Carlsbad Municipal Water District, a public agency organized under the Municipal Water Act of 1911 ("Licensor") and is an independent subsidiary of the City of Carlsbad, a municipal corporation, and STC One LLC, a Delaware limited liability company ("Licensee"), effective At>y\\ \j> , 2010 ("Effective Date"). T RECITALS A. Licensor is the owner of real property located at the Ellery Reservoir Site ("Property") and more particularly described in Exhibit "A". B. Licensee desires twenty-four (24) hour access to and limited use of a portion of the Property, as further described below to install, maintain and operate a wireless telecommunication facility with equipment as more particularly described in Minor Conditional Use Permit ("MCUP") No. 08-01, attached as Exhibit "B". C. Licensor is willing to permit Licensee access to and limited use of a portion of the Property for this stated purpose and pursuant to the below terms and conditions. NOW, THEREFORE, the parties agree as follows: GRANT OF LICENSE 1. Scope of License. Licensor grants to Licensee a non-exclusive license (the "License") to use that portion of the Property described in Exhibit "C" (the "Premises") for the purposes of installing, maintaining, and operating the wireless telecommunication facility with equipment described in MCUP No. 08-01. In addition to being subject to the terms and conditions in this Agreement, this License and Licensee are subject to the terms and conditions of MCUP No. 08-01 and any other required government approvals. (a) The Premises may be used for (i) the transmission of and reception of communication signals provided further that such frequency or frequencies is within those for which Licensee, or any entity which controls, is controlled by or is under common control with Licensee, is duly licensed by the Federal Communications Commission, and (ii) the construction, alteration, maintenance, repair, replacement and relocation of a monopole or self-supporting tower in compliance with MCUP No. 08-01 (the "Antenna Tower"), and (iii) the construction, alteration, maintenance, repair, replacement and relocation of related equipment, cables, facilities and equipment (the "Communications Equipment"), and (iv) 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 Uses"). 2. Term of License. The term of the License shall commence as of the Effective Date above ("Commencement Date"). The initial License term and this Agreement shall be equal to the term of corresponding MCUP No. 08-01 ("Initial Term"). If MCUP No. 08-01 is extended, the Licensor's Executive Manager may renew this Agreement for an additional period equal to the term for which MCUP No. 08-01 is extended. The renewal of this Agreement is subject to any changes in the terms and conditions requested by Licensor or Licensee and mutually agreed upon by the parties. Licensee must provide the Licensor at least one hundred eighty (180) days written notice of its desire to renew. The renewal shall not be effective unless and until the Licensee and Licensor have executed a written amendment to this Agreement setting forth the particular terms and provisions of the renewal. 3. License Fee. Licensee shall pay to Licensor an initial annual fee (the "License Fee") of Thirty-Five Thousand, Six Hundred Eighty-Eight Dollars ($35,688.00). The License Fee is payable in equal monthly installments of Two Thousand Nine Hundred Seventy-Four Dollars ($2,974.00), without abatement, deduction, or offset, on the first day of each month. The License Fee will be adjusted annually on the anniversary of the Commencement Date by the percentage increase in the most recently published Consumer Price Index - All Urban Consumers for the San Diego Metropolitan Statistical Area over the rate in effect on the Commencement Date of the prior year. This increase shall not be less than three percent (3%) or more than six percent (6%). (a) If any monthly 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. 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, after which Licensor may remove the facility and all equipment associated with Licensee's wireless telecommunication facility itself and charge Licensee for the cost of removal and storage. In addition to any other remedy available under this Agreement, Licensor may, without notice to Licensee, exercise any or all rights to collect upon the performance bond posted pursuant to Paragraph 14(b) below. (b) In addition to the License Fee defined above, the Licensor shall also receive an additional fee for each additional user that attaches to the Antenna Tower (the "Collocation Fee"). The Collocation Fee shall be an amount equal to fifty percent (50%) of the effective License Fee. Licensee is also to pay an initial One Thousand Dollar ($1,000.00) administration fee for each additional user. 4. Relationship of License and MCUP No. 08-01. The granting of the License is contingent upon the continuing validity of MCUP No. 08-01. This Agreement shall automatically terminate upon the expiration or revocation of MCUP No. 08-01. 'The modification or extension of MCUP No. 08-Ollfoes not obligate the Licensor to modify or extend this Agreement, nor does the continuing validity of MCUP No. 08-01 preclude the Licensor from exercising any rights under this Agreement, including the right to terminate this Agreement for convenience under Paragraph 13 below. (a) No collocation shall be permitted onto Licensee's Antenna Tower unless collocation was first contemplated and authorized in the companion MCUP No. 08-01 and this Agreement. 5. Limitations on License. Nothing in this Agreement is intended to create an interest or estate of any kind or extent in the Property or Premises. Licensee further acknowledges and agrees that this Agreement does not create a landlord-tenant relationship and Licensee is not entitled to avail itself of any rights afforded to tenants under the laws of the State of California. (a) Licensee may not assign, sublicense or transfer the License, in whole or in part, to any other persons or entity, nor may Licensee allow any other person or entity to co- locate its facilities on Licensee's facilities without the prior written consent of Licensor, which Licensor may withhold in its sole discretion. Licensee may not transfer the License to any additional user, nor may additional collocations occur without the prior written consent of Licensor. Any attempt by Licensee to do so without first obtaining Licensor's prior written consent is grounds for immediate revocation or termination of the License by Licensor. For approval of any sublicense of Licensee's facility or equipment to another person or entity, Licensor will require additional compensation as set forth in Paragraph 3(b) above. (b) Licensor's express approval shall not be required for the transfer of rights and obligations under this Agreement to an affiliate of Licensee that is wholly owned and controlled by Licensee, provided Licensee gives Licensor written notice of such action at least sixty (60) 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. Licensor makes no warranty or representation that the Premises are suitable for Licensee's use. Licensee has inspected the Premises and accepts the same "AS- IS." Licensor is under no obligation to perform any work or provide any materials to prepare the Premises for Licensee. LICENSEE'S OBLIGATIONS Licensee Shall: 7. Use the Premises solely for the purposes allowed within the scope of the License. If required by Licensor, a security fence, consisting of chain link construction or similar but comparable construction, shall be placed around the perimeter of Licensee's facilities and equipment. All improvements shall be at Licensee's expense. Licensor will maintain the Premises in a reasonable condition. 8. (a) Licensee and any/all additional users shall operate its Antenna Tower and Communications Equipment in a manner that will not cause interference with the use or enjoyment of the Property by Licensor and other lessees or licensees in and/or on the Property as of the date of this Agreement including, if applicable, but not limited to, the HVAC 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 Uses shall not constitute an impermissible interference. (b) All operations of Licensee and any/all additional users shall be lawful and in compliance with all Governmental Requirements (as hereafter defined), rules and regulations including, but not limited to those of the Federal Communications Commission ("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 interference caused by Licensee's and any/all additional users' 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 and any/all additional users' 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 Tower and Communications Equipment causing such interference. (d) Licensor shall not alter its existing or contemplated use of the Property, nor shall Licensor permit any lessees, licensees, employees, invitees or agents obtaining rights to the Property from and after the 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 Uses as a result of the transmission or reception (or both) of radio, microwave or other telecommunications signals by a future lessee, licensee or occupant of the Property, Licensee's rights hereunder to conduct Licensee's Permitted Uses shall be and remain superior to the rights of any such future lessee, licensee or occupant, subject, however, to the provisions of Paragraph 8(f) below. Licensor further acknowledges that interference with Licensee's operations shall 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 party. (e) Licensor reserves the right to license other portions of the Property to other parties during the term of this License. Accordingly, Licensor agrees that any other 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 person or entity's equipment causes such interference, Licensor will cause the interfering party to take all steps necessary to correct and eliminate the interference or such interfering 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(f) below. (f) 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, other Licensees, 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 above in Paragraph 8(e) with respect to a future use of the Premises by Licensee as described in this Paragraph 8(f). 9. Be fully responsible for any equipment and facility installed on the Premises by Licensee, including providing fire, theft, and extended coverage insurance. 10. Comply with all applicable federal, state, and local laws, including FCC regulations, City of Carlsbad City Council Policy No. 64, and related City of Carlsbad Municipal and Zoning Code provisions, as amended from time to time. 11. (a) Secure all necessary permits or conditional use permits from any governmental agency to install any wireless telecommunication facility and associated equipment of Licensee on the Premises provided upon Licensor's written consent. Licensor does hereby authorize Licensee and its employees, representatives, agents, and consultants to prepare, execute, submit, file and present on behalf of Licensor building, permitting, zoning or land-use applications with the appropriate local, state and/or federal agencies necessary to obtain land use changes, special exceptions, zoning variances, conditional use permits, special use permits, administrative permits, construction permits, operation permits and/or building permits. Licensor understands that any such applications and/or the satisfaction of any requirements thereof may require Licensor's cooperation, which Licensor hereby agrees to provide. Licensee may substitute, modify and/or add to its facilities and equipment located on the Premises from time to time, provided that Licensee first obtains any and all required governmental approvals from such substitution, modification and/or addition and the written approval of Licensor. Licensor reserves the right to increase the License Fee if the Licensor determines that the substitutions, modifications, or additions materially alter the scope of the License. In addition, any change to Licensee's approved antennae type, number of antennas, antenna location and/or changes in transmitter type and power output shall, at the sole expense of Licensee, be made in accordance with applicable regulations issued by the FCC. If Licensee's plans and specifications are approved by Licensor, Licensee shall notify all other telecommunications and information services providers located on the Property per Paragraph 29 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 modifications of Licensee's facilities or equipment is grounds for immediate revocation of the License by Licensor. (b) Maintain MCUP No. 08-01 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 wireless telecommunication facility and equipment as approved in MCUP No. 08-01. If (i) any application and/or negotiations by Licensee for any required certificates, 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 License Agreement, which termination shall be effective no sooner than one hundred eighty (180) days from delivery of written notice from Licensee to Licensor, provided Licensee has removed all of its personal property, fixtures, electrical meters, and equipment from the Premises and Property by that time. 12. Be responsible for all utilities and any property taxes imposed as a result of the use of the Property by Licensee. Licensee specifically acknowledges that the grant of the 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) At Licensee's sole expense and within thirty (30) days after the mailing of written notice by Licensor, protect, temporarily disconnect, relocate, modify or remove its equipment, facilities, and/or other property if Licensor determines, in its sole discretion, that Licensee's equipment, facilities, and/or other property are inconsistent with or interfere with Licensor's current or planned use of the Property or Premises. Further, in consideration for Licensor's agreement to enter into this 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 documentation of this release and waiver as Licensor may reasonably require in the future. (b) If Licensee does not protect, temporarily disconnect, relocate, or remove its equipment, facilities, and/or other property within the time period specified above, Licensor may remove the equipment, facilities, and property and charge Licensee for the cost of removal and storage. Alternatively, upon Licensee's request, Licensor may approve the abandonment of Licensee's facilities, equipment, or personal property in place. Upon approval, Licensee shall execute, acknowledge and deliver to Licensor any necessary documents to transfer ownership of its facilities, equipment and personal property to Licensor. 14. (a) Pay a fee of two times the then existing monthly rate if upon expiration or termination of this Agreement, Licensee remains on the Property. The increase will take effect on the first (1st) day after expiration or termination of this Agreement and will continue until Licensee vacates the Premises by removal of its facilities, equipment, and/or personal property, or by authorized abandonment in accordance with Paragraph 13(b) above. (b) As security for Licensee's performance under this paragraph and Paragraph 13 above, Licensee shall post a faithful performance bond, in a form acceptable to the City Attorney and in the amount of Twenty Thousand and 00/100 Dollars ($20,000.00) with the Engineering Department. Absent a breach of any term or condition of this Agreement, the performance bond will be released upon Licensee's written request and after confirmation by the City Engineer or designee that the wireless telecommunication facility and equipment has been removed and the Premises restored to the satisfaction of the City Engineer. 15. Exercise due diligence in utilizing the Premises of Licensor so as to not interfere with utilization of the Property or Premises by Licensor or other authorized persons, and Licensee agrees to comply with any rules and regulations Licensor may promulgate at any time in reference to utilization of the Property or Premises by any party other than Licensor. It is understood by Licensee that the Property is used by Licensor as a reservoir site and as a part of the water delivery system of Licensor and that it is necessary to maintain adequate security at all times for the primary utilization of the Property by Licensor. 16. (a) The parties agree to indemnify, defend and hold harmless the other party, its parent company or other affiliates, successors, assigns, officers, directors, shareholders, agents, elected officials, and employees (collectively, "Indemnified Persons"), from and against all claims and liabilities caused by or arising out of (i) such party's breach of any of its obligations, covenants, or warranties contained herein, or (ii) such party's acts or omissions with regard to the Agreement. However, in the event of an Indemnified Person's established contributory 10 negligence or other fault, the Indemnified Person shall not be indemnified hereunder to the extent that the Indemnified Person's established negligence or other fault caused such claim or liability. (b) Indemnification hereunder shall include any and all costs, expenses, attorneys' fees and liability incurred by the Indemnified Persons in defending against such claims, whether the same proceed to judgment or not. 17. (a) Obtain and maintain for the duration of the Agreement, and any and all amendments, insurance against claims for injuries to persons or damage to property which may arise out of or in connection with use of the Property or Premises by Licensee or Licensee's agents, representatives, employees or contractors. The insurance will be obtained from an insurance carrier admitted and authorized to do business in the State of California. The insurance carrier is required to have a current Best's Key Rating of not less than "A-V". (b) Maintain the types of coverage and minimum limits indicated below, unless the City Attorney/General Counsel or Carlsbad's City Manager approves a lower amount. These minimum amounts of coverage will not constitute any limitations or cap on Licensee's indemnification obligations under this Agreement. Licensor and the City of Carlsbad, its officers agents and employees make no representation that the limits of the insurance specified to be carried by Licensee pursuant to this Agreement are adequate to protect Licensee. If Licensee believes that any required insurance coverage is inadequate, Licensee will obtain such additional insurance coverage, as Licensee deems adequate at Licensee's sole expense. 1) Commercial General Liability. $1,000,000 combined single-limit per occurrence for bodily injury, personal injury and property damage. If the submitted policies contain aggregate limits, the general aggregate will be twice the required per occurrence limit. 2) Automobile Liability. $1,000,000 combined single-limit per accident for bodily injury and property damage. 3) Workers Compensation and Employer's Liability. Workers Compensation limits as required by the California Labor Code and Employer's Liability limits of $1,000,000 per accident for bodily injury. (c) Licensee will ensure that the policies of insurance required under this Agreement contain, or are endorsed to contain, the following provisions: 1) Licensor and the City of Carlsbad will be named as additional insureds on General Liability. 2) Licensee will obtain occurrence coverage, which will be written as claims-made coverage. 3) This insurance will be in force during the life of the Agreement and any extensions of it and will not be canceled without thirty (30) days prior written notice to Licensor and the City of Carlsbad in accordance with Paragraph 32 below. il (d) Prior to Licensor's execution of this Agreement and annually thereafter, Licensee will furnish certificates of insurance and endorsements to Licensor and the City of Carlsbad. (e) If Licensee fails to maintain any of these insurance coverages, the Licensor may immediately terminate this License. (f) Licensor reserves the rights to require, at any time, complete and certified copies of any or all required insurance policies and endorsement. 18. The parties both agree that each will 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 immediately terminate this Agreement and pursue any remedies to which it is entitled by law. 19. Install, at Licensee's own cost: (a) a separate electrical panel and meter for its wireless telecommunication facility and equipment and be responsible for all electrical costs attributable to its facility and equipment. (b) a separate water meter for any landscaping required by MCUP No. 08-01 or other federal, state, or local approval and be responsible for all water and maintenance costs attributable to this requirement. 20. Provide Licensor with "as-built" drawings for the wireless telecommunication facility and equipment within sixty (60) days after the facility and equipment are installed. 21. Perform the installation in a neat, responsible, workmanlike manner, using generally accepted construction standards, consistent with such reasonable requirements as shall be imposed by Licensor. 22. Repair or refmish, 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 wireless telecommunication facility and equipment. Without limiting any other available remedies, if Licensee fails to repair or refinish such damage, Licensor may, in its sole discretion, but without any obligation to do so, repair or refinish the damage and Licensee shall reimburse Licensor for all costs and expenses incurred in the repair or refinishing. 23. Ensure that the Premises are maintained in a clean, safe condition and that Licensee's wireless telecommunication facility and equipment are in good repair and free of any defects. LICENSOR'S OBLIGATIONS Licensor will: 24. Allow the construction, installation, operation, and maintenance of Licensee's wireless telecommunication facility with associated equipment on the Property and Premises for use by Licensee, as approved in MCUP No. 08-01. 25. Allow reasonable ingress and egress for Licensee to the Property, including access any time in cases of emergency or equipment failure. 26. Be responsible for its own equipment. 27. Grant any necessary temporary easement or right of entry for as long as this License is in effect, as required for extension of electric and telephone service to the Premises as specified in MCUP No. 08-01. 28. Licensor and its agents shall have the right to enter the Premises upon twenty- four (24) hours 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 rights Licensor may have as the local regulatory authority. In the event of an emergency, the notice requirement will be waived. 29. Licensee understands and agrees that the License is not exclusive. Licensor reserves the right to enter into agreements with other parties, including, but not limited to, additional Carriers for use of the Property. In the event that an additional Carrier is licensed to use the Property, it shall be 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 facilities and equipment not less that five (5) business days prior to such date. Any change to the additional Carrier's approved facilities, equipment and location shall be made compatible with Licensee's facilities and equipment at Carrier's sole expense. Except as otherwise required by applicable law, disputes between the Licensee and the other Carriers over the use of the Property shall be submitted to Licensor's City Manager or an authorized designee for final resolution. GENERAL PROVISIONS 30. Any breach of Licensee's obligations under this Agreement is grounds for revocation or termination of this License by Licensor. 31. Any action at law or in equity brought by either of the parties for the purpose 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 given as provided for in this section shall be deemed to be given on the date when sent. Should Licensor or Licensee have a change of address, the other party shall immediately be notified as provided in this section of such change. LICENSEE: LICENSOR: STC One LLC CITY OF CARLSBAD c/o Global Signal, LLC 1200 Carlsbad Village Drive 2000 Corporate Drive Carlsbad, CA 92008 Canonsburg, PA 15 317 Attn: Joe Garuba Attn: Property Management Title: Municipal Property Manager 33. The waiver by Licensor of any breach of any term, covenant, or condition in this Agreement shall not be deemed to be a waiver of such term, covenant, or condition for any subsequent breach of the same or any other term, covenant, or condition of this Agreement. 34. If any part of any provision of this Agreement or any other agreement, document, or writing given pursuant to or in connection with this Agreement is finally determined to be invalid or unenforceable under applicable law, that part of the provision shall be ineffective to the extent of such invalidity only, and the remaining terms and conditions shall be interpreted so as to give the greatest effect to them. 35. The terms and conditions of this Agreement shall bind and inure to the benefit of Licensor and Licensee and, except as otherwise provided in this Agreement, to their respective heirs, distributees, executors, administrators, successors, and assigns. 36. The terms and conditions contained in this Agreement supersede all prior oral or written understandings between the parties concerning the subject matter of this Agreement. Notwithstanding this, nothing in this Agreement is intended to alter or abrogate actions taken or conditions imposed by Licensor in its capacity as a regulatory authority. 37. This Agreement shall not be modified or amended except by a writing signed by authorized representatives of the parties. 38. All identified or referred to Exhibits are incorporated into this Agreement by this reference. [Signature page follows] 10 IN WITNESS WHEREOF, Licensee and Licensor have executed this Agreement effective the day and year first written above. LICENSEE STC One LLC, a Delaware limited liability company By: Global Signal Acquisitions III LLC, a DelawajceJimitedJdability company, its Attoie'y-j«*act LICENSOR Carlsb4d/]/li4nicipal Water ffijstrict> LORRAINE Secretary If required by Licensor, proper notarial acknowledgment of execution by Licensee must be;.' ^l« attached. If a corporation, the Agreement must be signed by one corporate officer from eaclj W\ the following two groups: "••:., <&i\ *Group A. Chairman, President, or Vice-President **Group B. Secretary, Assistant Secretary, CFO, or Assistant Treasurer Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation. APPROVED AS TO FORM: RONAfeD R. BALL, General Counsel By:/ \s£— f^> C^' ' g"*<aeL •AoGiototrt General Counsel 11 T^KROWCEDGWTENT State of County of On 10 before me, Cfah 0f5r frftW * (insert name and title of the officer) personally appeared _ _ _ _ __ , who 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 the same in his/her/their authorized capacity(ies), 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. I certify under PENALTY OF PERJURY under the laws of the State of paragraph is true and correct. that the foregoing WITNESS my hand and official seal. Signature (Seal) NOTARY PUBLICMARICOPA COUNTY My Commission Expires EXHIBIT A DESCRIPTION OF "PROPERTY" The subject area is identified as APN 167-540-52. The property is currently used as a water reservoir by the City of Carlsbad Water Department fwuc KMO wo unrrt ttguaiwe vu.t it, »u» ru M Exhibit "A" EXHIBIT B MINOR CONDITIONAL USE PERMIT NO. 08-01 City of Carlsbad PlannSrvg Department May 16,2008 Crown Castle Jon Dohm Ste. 303 510 Castillo St. Santa Barbara, CA 93101 SUBJECT: MINOR CONDITIONAL USE PERMIT NO. MCUP 08-01 - PCS 150 MOUNT KELLY - Request to allow the continued operation of a wireless communication facility located at 2237 Janis Way, in the R-A-10,000 Zone and Local Facilities Management Zone 1. Dear Jon Dohm, The Assistant Planning Director has completed a review of your application for a Minor Conditional Use Permit MCUP 08-01 for the continued operation of a wireless communication facility Jocated at 2237 Janis Way. This iietter "has sheen .amended due ito a change tin Condition ^No, ifi, 'Which now extends itne minor iCUP tfor ?ten .years retroactively jfrom August 20, 2006. Piis letter supercedes 4he ^previous ^approval letter 'dated IMarch J5, 2008. A notice was sent to property owners within a 300' radius of the subject property requesting comments regarding the above request. Comments were received within the ten day notice period (ending on January 5, 2008) and a request for an Administrative Hearing was filed. On February 19, 2008, the Assistant Planning Director held an Administrative Hearing to consider said request. Public testimony was given. After careful consideration of the public, testimony given at the Administrative Hearing, a review of the facts set forth in the application, and a review of the application's consistency with City Council Policy No. 64, the Assistant Planning Director has determined that the four findings required for granting a Minor Conditional Use Permit can be made and therefore, APPROVES this request based on the following findings and conditions. Findings: 1, That the requested use is necessary or desirable for the development of the community, and is in harmony with the various elements and objectives of the general plan, including, if applicable, the certified local coastal program, specific plan or master plan in that the use is consistent with the General Plan in that the Residential Low- Medium _(RLM) Land Use designation does not preclude the provision of Wireless Communication Facility (WCF) uses. The WCF is located on a public utility installation in a residential zone (EHery Reservoir) which is not publicly accessible and therefore is a preferred location pursuant to City Council Policy No. 64, Wireless Communication Facilities. The project's location and stealth faux tree design also enable the project to comply with Genera! Plan objectives that seek to maintain and enhance Carlsbad's appearance. 1635 Faraday Avenue* Carlsbad, CA 92008-7314 • (760) 6D2-46QD • FAX (760) 602-8559 • www.ci.carlsbad.oa.us MCUP OB-D1 - PCS 150 MOudT KELLY May 16, 2008 . Page 2 2. That the requested use is not detrimental to existing uses or to uses specifically permitted in the zone in which the proposed use is to be located in that the existing WCF will not result in any additional building coverage and there will be no alterations to the existing site design. 3. That the site for the proposed conditional use is adequate in size and shape to accommodate the yards, setbacks, walls, fences, parking, loading facilities, buffer areas, landscaping and other development features prescribed in this code and required by the Planning Director in order to integrate the use with other uses in the neighborhood in that the WCF is existing and no modifications are being proposed. The original approval of the use (CUP 96-06(A)) was granted on November 7, 2001. 4. That the street system serving the proposed use is adequate to properly handle all traffic generated by the proposed use in that the unmanned WCF use would require, on average, only monthly maintenance visits and occasional visits in response to operational problems. 5. That the proposed WCF is consistent with City Council Policy No. 64 In that it is located in a residential zone on the site of a non-publicly accessible public utility installation owned by the Carlsbad Municipal Water District (Ellery Reservoir), which the Policy identifies as a preferred location for WCFs. Also, the panel antennas are located within a faux palm tree and the equipment boxes are screened from public view by a slope and landscaping, both of which comply with the Policy's design guidelines for stealth design. Furthermore, the project has been conditioned to comply with the requirement to maintain compliance with FCC RF Exposure Guidelines. 6. That the Planning Director has determined that the project belongs to a class of projects that the State Secretary for Resources has found do not have a significant impact on the environment, and it is therefore categorically exempt from the requirement for the preparation of environmental documents pursuant to Section 15301 - existing facility, 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 CCQA Guidelines do not— apply to this project. 7. The Planning Director 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. Conditions: 1, Approval is granted for MCUP OB-01 as shown on Exhibits "A" - "D" dated November • 7, 2001 on file in the Planning Department and incorporated herein by reference. Development shall occur substantially as shown unless otherwise noted in these conditions. 2. If any of the following conditions fail to occur, or if they are, by their terms, to be implemented and maintained over time, if any of such conditions fail to be so MCUP 08-01 - PCS 150 MOUNT KELLY May 16, 2008 •Page 3 implemented and maintained according to their terms, the City shall have the right to revoke or modify all approvals herein granted; deny or further condition issuance of all future building permits; deny, revoke, or further condition all certificates of occupancy issued under the authority of approvals herein granted; record a notice of violation on the property title; institute and prosecute litigation to compel their compliance with said conditions or seek damages for their violation. No vested rights are gained by Developer or a successor in interest by the City's approval of this Minor Conditional Use Permit. 3. Staff is authorized and directed to make, or require the Developer to make, all corrections and modifications to the MCUP 08-01 documents, as necessary to make them internally consistent and in conformity with the final action on the project. Development shall occur substantially as shown on the approved Exhibits. Any proposed development different from this approval shall require an amendment to this approval. 4. The Developer/Operator shall and does hereby agree to indemnify, protect, defend and hold harmless the City of Carlsbad, its Council members, officers, employees, agents, and representatives, from and against any and all liabilities, losses, damages, demands,' claims and costs, including court costs and attorney's fees incurred by the City arising, directly or indirectly, from (a) City's approval and issuance of this Minor Conditional Use Permit, (b) City's approval or issuance of any permit or action, whether discretionary or non-discretionary, in connection with the use contemplated herein, and (c) Developer/Operator's installation and operation of the facility permitted hereby, including without limitation, any and all liabilities arising from the emission by the facility of electromagnetic fields or other energy waves or emissions. 5. The Developer shall comply with all applicable provisions of federal, state, and local ordinances in effect at the time of building permit issuance. 6, This project shall comply with all conditions and mitigation measures, which are required as part of the Zone 1 Local Facilities Management Plan and any amendments made to that Plan prior to the issuance of building permits. T. WICUP 08-01 shall be reviewed by the Planning Director on a yearly basis to determine if all conditions of this permit have been met and that the use does not have a substantial negative effect on surrounding properties or the public health, safety and general welfare. If the Planning Director determines that: 1) the minor conditional use permit was obtained by fraud or misrepresentation; or 2) the use for which such approval is granted is not being exercised; or 3) the conditions of approval have not been met; or 4) the minor conditional use permit is being or recently has been exercised contrary to any of the terms or conditions of approval; or 5) the use for which such approval was granted has ceased to exist or has been suspended for one year or more; or 6) the use is JnJ/iolationjotany_statute,jDrdinance,Jaw.-or_regulation;_or_7.)_the_use-permitted-by the minor conditional use permit is being or has been so exercised as to be detrimental to the public health, safety or welfare or so as to constitute a nuisance, the Planning Director shall hold an informal public hearing and after providing the permittee the opportunity to be heard, the planning director may revoke and terminate the minor conditional use permit in whole or in part, reaffirm the minor conditional use permit, modify the conditions or impose new conditions. MCUP 08-01 - PCS 150 MOo.JT KELLY May 16, 2008 - Page A 8. This Minor Conditional Use Permit is granted for a period of 10 years retroactively from August 20, 2006 through August 19, 2016. 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 10 years upon written application of the permittee made no less than 90 days prior to the expiration date. The Planning Director may not grant such extension, unless he or she finds that there are no substantial negative effects on surrounding land uses or the public's health and welfare. If a substantial negative effect on surrounding land uses or the public's health and welfare is found, the extension shall be denied or granted with conditions which will eliminate or substantially reduce such effects. There is no limit to the number of extensions the Planning Director may grant, 9. Developer/Operator shall comply with the Federal Communication Commission's guidelines on limits for human exposure to radio frequency (RF) electromagnetic fields. Within six (6) months from the date of this letter, and with any time extension or amendment request, the Developer/Operator shall submit to the Planning Director either (1) verification that the project -is categorically excluded from having to determine compliance with the RF exposure guidelines per 47 CFR §1.13C7(b)(1); or (2) a project implementation report which provides cumulative field measurements of RF emissions of all antennas installed at the subject site. The report shall quantify the RF emissions and compare the results with the exposure limits established by the FCC guidelines. Said report shall be subject to review and approval by the Planning Director for consistency with the Project's preliminary report on RF exposure submitted with the initial project application and for consistency with the FCC guidelines. If, on review, the City finds that the Project does not meet the FCC guidelines, the City may revoke or modify this conditional use permit. 10. Developer shall submit to the City a Notice of Restriction executed by the owner of the real property to be developed. Said notice is to be filed in the office of the County Recorder, subject to the satisfaction of the Planning Director, notifying all interested parties and successors in interest that the City of Carlsbad has issued a(n) Minor Conditional Use "Permit on the property. Said Notice of Restriction shall note the property description, location of the file containing complete project details and all conditions of approval as well as any conditions or restrictions specified for inclusion in the Notice of Restriction. The Planning Director has the authority to execute and record an amendment to the notice which modifies or terminates said notice upon a showing of good cause by the Developer or successor in interest. 11. Developer shall maintain in good standing a license agreement (fully executed) with the City for use of and access to the project site. 12. Developer jahall _rep_ort, in writing, to'the Planning Director within 30 days, any_address change from thaTwhicri is"shown on The permit application, Engineering; 13. Developer shall comply with the City's requirements of the current National Pollutant Discharge Elimination System (NPDES) permit, Developer shall implement best management practices at all times. Best management practices include but not limited to pollution treatment practices or devices, general housekeeping practices, pollution MCUP 08-01 - PCS 150 MOUNT KELLY May 16, 2008 •Page 5 . 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 stormwater conveyance system to the maximum extent practicable, NOTICE Please take NOTICE that approval of your project includes the "imposition''^ fees, dedications, reservations, or other exactions hereafter collectively referred to for convenience as "fees/exactions," You have 90 days from the date of final approval to protest imposition of these fees/exactions. If you protest them, you must follow the protest procedure set forth in Government Code Section 6S020(a), and file the protest and any other required information with the City Manager for processing in accordance with Carlsbad Municipal Code Section 3.32.030, Failure to timely follow that procedure will bar any subsequent legal action to attack, review, set aside, void, or annul their imposition, You are hereby FURTHER NOTIFIED that your right to protest the specified fees/exactions DOES NOT APPLY to water and sewer connection fees and capacity charges, nor planning, zoning, grading or other similar application processing or service fees in connection with this project; NOR DOES IT APPLY to any fees/exactions of which you have previously been given a NOTICE similar to this, or as to which the statute of limitations has previously otherwise expired. This decision may be appealed by you or any other member of the public to the Planning Commission within ten days of the date of this letter. Appeals must be submitted in writing to the Planning Department at 1635 Faraday Avenue in Carlsbad, along with a payment of $598.50. The filing of such appeal within such time limit shall stay the effective date of the. order of the Planning Director until such time as a final decision on the appeal is reached. If you have any questions regarding this matter, please feel free to contact Chris Sexton at (750) 6D2-4624. Sincerely, GARY T. BARBERJO Assistant Planning Director GTB:CS:lt c: Chris DeCerbo Scott Donnell Tecla Levy File Copy Data Entry CUP 96-06(A) EXHIBIT C DESCRIPTION OF "PREMISES" WtUNXl (£) WATER TANK Exhibit "C"